Public International Law Green Notes 2015

7/26/2019 Public International Law Green Notes 2015

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Notes compiled by: The Barristers Club 2015

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Recent Jurisprudence:

Tubbataha reef was damaged due tothe fault of US Guardian. The respondentsargued that they are immune from suit and didnot participate to UNCLOS. The court ruledthat non-membership in the UNCLOS does notmean that the US will disregard the rights ofthe Philippines as a Coastal State over itsinternal waters and territorial sea. The courtthus expects the US to bear international

responsibility under Art. 31 in connectionwith the USS Guardian pgrounding whichadversely affected the Tubbataha reefs. MostRev. Pedro D. Arigo, Et Al. vs. Scott H. Swift in

His Capacity As Commander Of The U.S. 7th

Fleet, Et Al., G.R. No. 206510, September 16,

2014, J. Villarama, Jr.

The question of whether the Philippinegovernment should espouse claims of MalayaLolas against the Japanese government is aforeign relations matter, the authority for

which is committed by our Constitution not tothe courts but to the political branches. In thiscase, the Executive Department has alreadydecided that it is to the best interest of thecountry to waive all claims of its nationals forreparations against Japan in the Treaty ofPeace of 1951. The wisdom of such decision isnot for the courts to question. Indeed, exceptas an agreement might otherwise provide,international settlements generally wipe outthe underlying private claims, therebyterminating any recourse under domestic law.

Isabelita C. Vinuya, Et Al. vs. Executive

Secretary Alberto G. Romulo, Et Al., G.R. No.

162230, April 28, 2010, J. Del Castillo

As may be palpably observed, theterms and conditions of Loan Agreement No.4833-PH, being a project-based andgovernment-guaranteed loan facility, wereincorporated and made part of the SLA thatwas subsequently entered into by LBP with theCity Government of Iligan. Consequently, thismeans that the SLA cannot be treated as anindependent and unrelated contract but as aconjunct of, or having a joint andsimultaneous occurrence with, LoanAgreement No. 4833-PH. Its nature andconsideration, being a mere accessory contractof Loan Agreement No. 4833-PH, are thus thesame as that of its principal contract from

which it receives life and without which itcannot exist as an independent contract.Indeed, the accessory follows the principal;and, concomitantly, accessory contracts shouldnot be read independently of the maincontract. Hence, as LBP correctly puts it, theSLA has attained indivisibility with the LoanAgreement and the Guarantee Agreementthrough the incorporation of each others

terms and conditions such that the character offone has likewise become the character of theother. Land Bank of The Philippines vs. AtlantaIndustries, Inc., G.R. No. 193796, July 2, 2014,

J. Perlas-Bernabe

The Responsibility to Protect (R2P) isan emerging international norm that imposes aresponsibility on statesand where they fail,on the international community to protectindividuals within their borders. Today,perhaps nowhere is protection more neededthan in Syria. Since Bashar al-Assads regimemet initially peaceful Syrian protests withmilitary force in March of 2011, a raging civil

war between the Assad regime and a numberof rebel groups has claimed more than191,000 livesand resulted in numerous horrifichuman rights violations. Nonetheless, on May22, 2014, at the 7180th meeting of the U.N.Security Council, the Council determinesthreats to international peace and security andadopts recommendations or Chapter VIIcoercive measures (ICC referral, sanctions, andmilitary intervention) to resolve them. A draftresolution referring the ever-worseningsituation in Syria to the International Criminal

Court (ICC) for investigation fell to a doubleveto by Russia and China. The failure of thisresolution marks the fourth time that Russiaand China have used their vetoes to block aSecurity Council resolution condemning theviolence in Syria and pressuring the Assadregime to seek a peaceful settlement. Thispattern highlights the tension between thepurpose of R2P and the structure of the U.N.Security Council and strengthens the argumentthat R2P will prove unable to fulfill its largerpurpose of elevating concern for individuals

over national interests in deliberations oninternational crisis response.

The Syrian Civil War began as a seriesof protests inspired by demonstrations inNorth Africa and in other parts of the MiddleEast. The protests initially inspired some minorchanges in governance. For example, the


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government repealed the forty-eight-year stateof emergency. The violence escalated assecurity forces opened fire on protesters inMarch and April of 2011, deployed troopswith tanks to select cities, imposed acommunications blackout, and unleashed anartillery assault on the city of Homs. As amilitarized opposition coa-lesced, both theArab Leagues and the U.N.s efforts tonegotiate a peaceful outcomeconsistently failed. The Arab League sponsoreda peace plan calling for the cessation ofviolence against protesters. The Syrian

Government agreed and then violated it .Even Kofi Annan, acting as Joint Special Envoyfor the U.N. and the Arab League to negotiatea compromise, grew pessimistic about theprospect of negotiations and resigned, as didhis replacement, Lakhdar Brahimi. Since then,bombardments by government forces andarmed opposition, extremist, and terroristgroups have killed hundreds of civilians, allsides have targeted vital services, such as safedrinking water, electricity, andmedical facilities. Neither women nor children

have been spared from abuse. Violationsagainst children include the killing andmaiming of children, child recruitment andarbitrary detention and abduction, and thereare reports of insurgent groups stoning womenfor alleged adultery, and systematic torture bysecurity forces is widespread. The capacity ofU.N. agencies to meet humanitarian needs isstretched thinAntnio Guterres, U.N. HighCommissioner for Refugees, has called theconflict the most dramatic humanitarian crisis

that we have ever faced.

The Security Council sought to respondby condemning the violence and pressuringthe Syrian Government to seek a politicalsettlement. U.N. SCOR, 69th Sess., 7180thmtg. at 4, U.N. Doc. S/PV.7180 (May 22,

2014) Draft Security Council ResolutionReferring Syrian Conflict to the InternationalCriminal Court Vetoed by Russia and China(13 in Favor, 2 Against). Recent DraftResolution : U.N. SCOR, 69th Sess., 7180thmtg. at 4, U.N. Doc. S/PV.7180 (May 22,

2014)JAN 12, 2015 128 Harv. L. Rev. 1055

Who is a refugee?

A refugee is legally defined as a personwho is outside his or her country of nationalityand is unable to return due to a well-foundedfear of persecution because of his or her race,

religion, nationality, political opinion, ormembership in a particular social group. Byreceiving refugee status, individuals areguaranteed protection of their basic humanrights, and cannot be forced to return to acountry where they fear persecution.

Who is an internally displaced person (IDP)?

Internally displaced people (IDPs) havebeen forced to leave their homes as a result ofarmed conflict, generalized violence, or humanrights violations, but unlike refugees they have

not crossed an international border. Althoughinternally displaced people outnumberrefugees by more than two to one, no singleUN or other international agency hasresponsibility for responding to internaldisplacement. As a result, the global responseto the needs of IDPs is often ineffective.

Who is a stateless person?

Stateless people are individuals whodo not have a legal bond of nationality with

any state, including people who have neveracquired citizenship of their birth country orwho have lost their citizenship and have noclaim to citizenship of another state. Childrenof stateless people often are born intostatelessness and few manage to escape thatstatus. According to the 1954 Conventionrelating to the Status of Stateless Persons, a de

jure stateless person is someone not

considered as a national by any State underthe operation of its law. Persons areconsidered de facto stateless if they have an

ineffective nationality, cannot prove they arelegally stateless, or if one or more countriesdispute their citizenship. The Office of the UNHigh Commissioner for Refugees (UNHCR) hasthe international mandate for responding tothe needs of stateless people and leading theglobal effort to reduce statelessness.Historically, however, the agency has devotedfew resources to this aspect of its mandate.

What is an asylum seeker?

An asylum seeker is a person who isseeking to be recognized as a refugee, but hasnot yet received formal refugee status. During2013, some 1.1 million individual applicationsfor asylum or refugee status were submitted togovernments and UNHCR offices. With109,600 asylum claims, Germany was for thefirst time since 1999 the worlds largest
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recipient of new individual applications,followed by the United States of America(84,400) and South Africa (70,000).

Can a country refuse to admit refugees?

Under international law, refugees mustnot be forced back to the countries they havefled. This principle of non-refoulement is thekey provision of the 1951 UN RefugeeConvention, which defines international lawand guidelines to protect refugees. Hostgovernments are primarily responsible for

protecting refugees and most states fulfill theirobligations to do so. Others, however, avoidtheir responsibility by pointing to a lack ofresources, threats to national security, fears ofdomestic political destabilization, or the arrivalof even greater numbers of refugees. This is aviolation of international law that is bindingon all states.

What is the Principle of Non-Refoulement?

The principle of

non-refoulement

is

well established in customary international

law, prohibiting states from expelling,

deporting or extraditing persons to countries

where they face torture or ill-treatment.

Non-refoulementis a fundamental rule

of refugee law and several human rights

instruments forbid the return of a person who

has reason to fear for his/her life or physical

integrity in his/her country of origin.

What is the 1951 Refugee Convention?

The 1951 Geneva Convention is themain international instrument of refugee law.The Convention clearly spells out who arefugee is and the kind of legal protection,other assistance and social rights he or sheshould receive from the countries who havesigned the document. The Convention alsodefines a refugees obligations to host

governments and certain categories or people,such as war criminals, who do not qualify forrefugee status. The Convention was limited to

protecting mainly European refugees in theaftermath of World War II, but anotherdocument, the 1967 Protocol, expanded thescope of the Convention as the problem ofdisplacement spread around the world.

What are the solutions to refugee and

displacement crises?

The UN Refugee Agency (UNHCR)speaks of three durable solutions to refugee

crises: return; local integration; and thirdcountry resettlement.

The most desirable way to end forceddisplacement is for people to return homewhen conflict ends. To return in safety anddignity, families need help with transportationand require basic goods for restarting their

lives, including a provisional supply of food,seeds and tools, and building materials forhome repair or construction. In addition,support for the reconstruction of schools andhealth clinics is also critical. Read more aboutRefugees Internationals work onReturn &Reintegration.

If instability persists or if the individualwill face persecution when they return, thenintegrating into the country of asylum isanother option. Most countries hosting

refugees, however, are reluctant to allowrefugees to integrate and become citizens,fearing competition for scarce resourcesbetween the refugees and residents of aparticular locale.

Resettlement to a third country canalso be a solution for refugees who cannotreturn home, cannot establish a new life intheir country of asylum, or are considered tobe particularly vulnerable. Resettlement cannever be an option for more than a tiny

minority of the worlds refugee population,but still benefits tens of thousands of refugeeswho have made new lives in countries such asthe United States, Canada, Sweden, andNorway.


A. Concepts

1. Obligations Erga Omnes

What is obligation erga omnes?

It is an obligation of every Statetowards the international community as awhole. All States have a legal interest in itscompliance, and thus all States are entitled toinvoke responsibility of such an obligation.
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An international obligation of suchcharacter and importance that their violationby any State allows any other State to invokethe violators liability, even if only one state oronly a few states incurred direct materialdamage.

It usually has to do with issues onstanding before a court or tribunal. Otherscholars further make a distinction betweenobligations erga omnes omnium, which isstrictly speaking, the obligation owed to theinternational community as a whole, and erga

omnes partes, which pertains to obligationsowed by states under a multilateral treaty.However, it may also be the case that a multi-lateral treaty partakes of both sets ofobligations, inasmuch as the same merelyrestates norms already held as binding undercustomary international law (North SeaContinental Shelf Cases ,1969; Nicaragua v.

US, 1984; Kuroda v. Jalandoni, 1949)

Barcelona Traction Light and Power Co. Case

(1970):

The grant of standing to sue because ofviolationsof erga omnes obligations ispremised on the idea that themaintenance ofsome norms are of interest to the entireworldcommunity, their violation being an injury tothe interest of not only the state directlyoffended, but also ofall states.

Illustrations:

(1) Outlawing of acts of aggression and of

genocide(2) Principles and rules concerning the basicrights of the human person, includingprotection from slavery and racialdiscrimination (Barcelona Traction Case, 1970)(3) The right to self-determination (East Timorcase, 1994; the Wall Opinion case)

2.Jus Cogens

A preemptory norm which Statescannot derogate or deviate from in their

agreements. It is a mandatory norm and standson a higher category than a jus dispositivumnorm which States can set aside or modify byagreement.

llustrations:

(1) The prohibition against the use of forceunder the U.N. Charter (Nicaragua Case)(2) Law on genocide(3) Principle of Self-Determination(4) Prohibition against apartheid(5) Crimes against humanity(6) Prohibition against slavery and slave trade(7) Piracy (Brownlie, Magallona)

In the 2012 case Questions Concerningthe Obligation to Prosecute or Extradite

[Belgium v. Senegal (2012)], the ICJ affirmedthe obligation of states parties to theConvention against Torture and Other Cruel,Inhuman or Degrading Treatment orPunishment (CAT) to either prosecute allegedperpetrators or extradite them to anothercountry with jurisdiction for prosecution (theGrotian aut dedere,aut punire principle).

The case involved Hissne Habr, theformer president of Chad, who stands chargedin Belgian courts for torture, war crimes, and

crimes against humanity against thousands ofvictims during his term in office from 19821990. Habr, who has been residing in Senegalas a political asylee since he was ousted frompower two decades ago, was being sought forextradition by Belgium.

The ICJ in this case observed that the

prohibition on torture is part of customaryinternational law and has become aperemptory norm (jus cogens). However, theobligation to prosecute alleged perpetrators of

torture only arises after the Convention hasentered into force for that state party. The ICJsaid, after noting that a number of complaintsregarding serious offenses committed by Habrafter that date for which Senegal is obligatedto prosecute, said Belgium is entitled to invokeSenegals compliance with the Convention

beginning in 1999; in fact, Beligum has beenrequesting Senegals compliance since 2000

when the first complaint against Habr wasfiled in Senegal.

The ICJ, in this landmark decision,affirms that memberstates to the CAT maydemand performance of obligations under thethe same, even if the alleged torture occurredbefore the applicant state joined theConvention and even if the alleged torturer orvictims have no connection with the applicantstate. The ruling therefore allows the


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enforcement of universal jurisdiction fortorture. Thus it held that States parties to the

Convention have a common interest to ensure. . . that acts of torture are prevented and that,if they occur, their authors do not enjoyimpunity,xxx stressing that these obligationspartake of the nature of obligations erga

omnes partes in the sense that each State party

has an interest in compliance with them in anygiven case. Thus, any state party may make a

claim for the cessation of any breach byanother state party, whether or not theapplicant state has any connection at all to the

victims.

In the 2007 case of Application of theConvention on the Prevention and Punishment

of the Crime of Genocide (Bosnia andHerzegovina v. Serbia and Montenegro,

2007), the ICJ finally erased all doubts as tothe existence of a duty to prevent genocideseparate from the duty to punish itsperpetrators under the Genocide Convention.

In the controversial Vinuya (2010)

case, the Philippine Supreme Court dismissed apetition by the Malaya Lolas - a group ofFilipino Comfort Women seeking stateespousal of their claims against Japan.

Towards the end of its Judgment ofApril 28, 2010, the Supreme Court expressedits great sympathy for Petitioners, saying itsmembers cannot begin to comprehend the

unimaginable horror they underwent at thehands of the Japanese soldiers. And then it

goes on to say that it is deeply concerned

that in apparent contravention offundamental principles of law the MalayaLolas appear to be without a remedy to

challenge those that have offended thembefore appropriate fora. The High Court had

rejected the Petitioners claim that rape andother sexual crimes committed against themwere already prohibited as violations of juscogens norms during World War II.

In their pending Motion forReconsideration, the Petitioners argue that

early on, there has developed as a bindingcustomary norm in international law anabsolute prohibition on rape. Before SanFrancisco Peace Treaty in 1951, it was alreadypenalized as a war crime and as a crime againsthumanity in the 1949 Geneva Conventions, asa crime against humanity in German Courtsthat tried war criminals of World War II and as

a war crime in the International MilitaryTribunal in the Far East that tried Japanese warcriminals of World War II. In fact, they assertthat right after World War I, a PreliminaryConference at Versailles created a Commissionon Responsibility of the Authors of War andon Enforcement of Penalties.

Too, the 15-member Commission ofwhich Japan was part submitted a report tothe Conference on the responsibility ofbelligerent states in which it included a list ofpunishable war crimes as violations of the laws

and customs of war. These included, amongother crimes, (1) rape, (2) abduction of girlsand women for the purpose of enforcedprostitution, (3) deportation of civilians, (4)internment of civilians under inhumanconditions and and (5) forced labor of civiliansin connection with the military operations.

The Philippine Supreme Courts

decision sparked a massive controversy whensignificant portions of it were discovered tohave been lifted from various sources without

proper attribution. In addition to theplagiarismwhich is a word for word liftingof pages from the three articles without theproper attribution it appears that thesestolen passages were also twisted to supportthe courts erroneous conclusion that the

Filipina comfort women of World War Twohave no further legal remedies.

All three plagiarized articles by foreignauthors an article published in 2009 in theYale Law Journal of International Law, a book

published by the Cambridge University Press in2005, and, an article published in 2006 in theWestern Reserve Journal of International Law argue otherwise. A Motion forReconsideration and a Supplemental Motionfor Reconsideration subsequently filed bylawyers on behalf of the Malaya Lolashighlighting the alleged plagiarism and twistingof sources are pending with the Court. TheMalaya Lolas, in their Supplemental Motionfor Reconsideration said the High Courts

ruling, penned by Justice Mariano Del Castillo,

"made it appear that these sources support theassailed judgment's arguments for dismissinginstant petition when, in truth, the plagiarizedsources even make a strong case for thepetition's claims."


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3. Concept of ex aequo et bono

Ex Aequo Et Bono

Literally meaning what is equitable

and good, it is a standard that a court may

apply to decide a case when the parties to thedispute so agree. This means simply that thecourt may reach a fair compromise inbalancing the interests of the parties.

Judgment will not be on the basis ofthe sources of international law, as listed in

Art. 38(1) of the ICJ Statute, but on thegrounds of fairness and justice. The court mayhave to rely on its own understanding of thebroader context of equity and outside theaccepted norms of law under Art. 38(1).

But in the North Sea Continental Shelfcases, the ICJ found a situation where theParties were under an obligation to act in sucha way that in the particular case, and taking allthe circumstances into account, equitableprinciples were applied, which meant that its

decision on the applicability of theequitadistance principle in the delimitationsproceeding was not founded on ex aequo etbono. It said thus: [i]t was precisely a rule of

law that called for the application of equitableprinciples, and in such cases as the present onesthe equidistance method could unquestionablylead to inequity.

B. International and National Law

How may international law become a part of

domestic law? Explain.

Under the 1987 Constitution,international law can become part of thesphere of domestic law either bytransformation or incorporation. Thetransformation method requires that aninternational law be transformed into adomestic law through a constitutionalmechanism such as local legislation. Theincorporation method applies when, by mereconstitutional declaration, international law is

deemed to have the force of domestic law.

Treaties become part of the law of theland through transformation pursuant toArticle VII, Section 21 of the Constitutionwhich provides that no treaty or international

agreement shall be valid and effective unlessconcurred in by at least two-thirds of all the

members of the Senate. Thus, treaties or

conventional international law must gothrough a process prescribed by theConstitution for it to be transformed intomunicipal law that can be applied to domesticconflicts. (Pharmaceutical & Health Care Assn.of the Phil. v. Health Secretary Duque, et al.,G.R. No. 173034, October 19, 2007).

May generally accepted principles of

international law form part of the law of the

land even if they do not derive from treaty

obligations? Explain.

Yes. Generally accepted principles ofinternational law, by virtue of theincorporation clause of the Constitution, formpart of the laws of the land even if they donot derive from treaty obligations. Theclassical formulation in international law seesthose customary rules accepted as bindingresult from the combination of two elements:the established, widespread, and consistentpractice on the part of States; and apsychological element known as

the opinionjurissive necessitates(opinion as tolaw or necessity). Implicit in the latter elementis a belief that the practice in question isrendered obligatory by the existence of a ruleof law requiring it. (Mijares v. Ranada, G.R.No. 139325, April 12, 2005, 455 SCRA 397).

State the concept of the term generally

accepted principles of international law and

give examples.

Generally accepted principles of

international law refers to norms of generalor customary international law which arebinding on all states, i.e., renunciation of waras an instrument of national policy, theprinciple of sovereign immunity, a persons

right to life, liberty and due process,and pactasuntservanda, among others. Theconcept of generally accepted principles of

law has also been depicted in this wise:

Some legal scholars and judges uponcertain general principles of law as a primary

source of international law because they havethe character ofjus rationale and are validthrough all kinds of human societies. (Judge

Tanaka in his dissenting opinion in the 1966South West Africa Case, 1966, I.C.J.296).OConell holds that certain principles are

part of international law because they arebasic to legal systems generally and hence


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part of thejus gentium. These principles, hebelieves, are established by a process ofreasoning based on the common identity of alllegal systems. If there should be doubt ordisagreement, one must look to state practiceand determine whether the municipal lawprinciple provides a just and acceptablesolution. (Pharmaceutical & Health Care Assn.of the Phil. v. Sec. of Health Duque, et al.,G.R. No. 173034, October 9, 2007).

What is customary international law? Explain.

Custom or customary international lawmeans a general and consistent practice ofstates followed by them from a sense of legalobligation (opinionjuris). This statementcontains the two basic elements of custom: thematerial factor, that is, how states behave, andthe psychological or subjective factor, that is,why they behave the way they do.

The initial factor for determining theexistence of custom is the actual behavior ofstates. This includes several elements: duration,

consistency, and generality of the practice ofstates.

The required duration can be eithershort or long.

Duration therefore is not the mostimportant element. More important is theconsistency and the generality of the practice.

Once the existence of state practice hasbeen established it becomes necessary to

determine why states behave the way they do.Do states behave the way they do becausethey consider it obligatory to behave thus ordo they do it only as a matter ofcourtesy? Opiniojurisor the belief that acertain form of behavior is obligatory, is whatmakes practice an international rule. Withoutit, practice is not law. (Pharmaceutical &Health Care Assn. of the Phil. v. HealthSecretary Duque, et al., G. R. No. 173034,October 9, 2007).

What is a soft law? Is it an international law?

Soft law is an expression of non-binding norms, principles and practices thatinfluence state behavior. (David Fidler,Development Involving SARS, InternationalLaw & Infections Disease Control at the Fifty-Six Meeting of the World Health Assembly,

June 2003, ASIL; Pharmaceutical & HealthCare Assn. of the Phils. v. Health SecretaryDuque, et al., G.R. No. 173034, October 9,2007). It does not fall under the internationallaw set forth in Article 38, Chapter III of the1946 Statute of the International Court ofJustice.

Give examples of soft law.

Certain declarations and resolutions ofthe UN General Assembly fall under thiscategory. (Louis Henkins, et al., International

Law, Cases and Materials, 2nd

Ed.).

The UN Declaration of Human Rightsis an example. This was appliedin Government of Hongkong SpecialAdministrative Region v. Olalia; Mejoff v.

Director of Prisons;90 Phil. 70 (1951); Mijaresv. Ranada; Shangri-la International Hotel

Management Ltd. v. Developers Group of

Companies Inc., G.R. No. 159938, March 31,2006, 486 SCRA 405.

It is resorted to in order to reflect andrespond to the changing needs and demandsof constituents of certain internationalorganizations like the WHO.

What is the effect of Municipal Law in

International Law?

2 Views:

1. Doctine Of Incorporation - rules ofinternational law form part of the law of the

land and no further legislative action is neededto make such rules applicable in the domesticsphere.

a. Such is recognized in art. 2, sec. 2, asthe Philippines "adopts the generallyaccepted principles of internationallaw as part of the law of the land."

b. Rules of international law are givenequal standing with, but are notsuperior to, national legislative

enactments. Thus, the Constitution, asthe highest law of the land, mayinvalidate a treaty in conflict with it.(Secretary of Justice v. Hon. Lantionand Mark Jimenez, Jan. 18, 2000)


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2. Doctrine Of Transformation - the generallyaccepted rules of int'l law are not per sebinding upon the State but must first beembodied in legislation enacted by thelawmaking body and so transformed intomunicipal law. Only when so transformed willthey become binding upon the State as part ofits municipal law.

C. Sources

Primary Sources (Article 38, ICJ Statute)

(1) International Conventions, whether generalor particular, establishing rules expresslyrecognized by the contracting states (Treaties);

(2) International Custom, as evidence of ageneral custom accepted as law;

(3) General Principles of Law recognized bycivilized nations;

Subsidiary Sources

(1) Judicial Decisions; and

(2) Teachings of the most highly qualifiedpublicists of the various nations. (Art. 38, ICJStatute)

(a) Treaties, Customs and GeneralPrinciples (Primary Sources) create law;while court decisions publicists teachings

constitute evidence of what is the law.

(b) With respect to the three primary

sources, the order the enumeration doesnot provide a hierarchy in all cases.

NOTE: Although treaties are mentioned first,they are not ipso facto superior to customs andgeneral principles.

D. Subjects

1. States

A group of people, more or less

numerous, permanently living in a definiteterritory, under an independent governmentorganized for political ends and capable ofentering into legal relations with other states(Art. 1, Montevideo Convention on the Rightsand Duties of States, 1933)

Elements of a state:

Art. 1, Montevideo Convention:

1. a permanent population;2.

a defined territory;3. government;4. capacity to enter into relations with

other States

If State A claims that State B acted without or

in excess of its jurisdiction, who has the burden

of proving that State B indeed acted without

or in excess of its jurisdiction?

There is no issue of having a burden ofproving jurisdiction as both states A and B areconsidered equal in international law and bothmay prosecute crimes committed within theirown jurisdiction.

The President of State A is in the territory of

State B. Can the President of State A claim that

State B cannot exercise jurisdiction over his

person?

Yes. While jurisdiction of State B is completeand absolute on its territory, it admits twoexceptions:

(1) sovereign immunity, and

(2) immunity of the representative of states(diplomatic and consular immunities).President A is the sitting foreign sovereign andtherefore immune from any claim ofjurisdiction over his person.

Resolving Conflicts of Jurisdiction

(1) The balancing test(2) International comity(3) Forum non conveniens

Foreign State:

United States of America, et al. v. Hon. V. M.

Ruiz, G.R. No. L-35645, May 22, 1985

The traditional rule of State immunityexempts a State from being sued in the courtsof another State without its consent or waiver.This rule is a necessary consequence of theprinciples of independence and equality ofStates. However, the rules of International Laware not petrified; they are constantlydeveloping and evolving. And because the


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activities of states have multiplied, it has beennecessary to distinguish them-betweensovereign and governmental acts (jure imperii)and private, commercial and proprietary acts(jure gestionis). The result is that Stateimmunity now extends only to acts jureimperii The restrictive application of Stateimmunity is now the rule in the United States,the United Kingdom and other states inWestern Europe.

2. International organizations

The status and powers of an IO isdetermined by agreement and not by generalor customary international law.

IOs are considered subjects of

international law if their legal personality is

established by their constituent instrument(charter).

Further, its constituent rights andduties, or capacities and immunities, arelimited to those set forth in the treaty creating

the international organization. Thus, legalpersonality in this context is a relative concept.(Magallona)

PRECONDITIONS FOR INTERNATIONAL

PERSONALITY

(1) It must constitute a permanentassociation of states, with lawfulobjects, equipped with organs;

(2)

There must be a distinction, in terms of

legal powers and purposes, betweenthe organization and its member states;and

(3) It must have legal powers that it mayexercise on the international plane andnot solely within the national systemsof one or more states.

Capacity for Bring a Claim for Reparation

An International Organization such as

the United Nations (UN) must be deemed tohave such powers which, though not expresslygranted in its Charter, are conferred upon it bynecessary implication asbeing essential to theperformance of its duties.

Thus, though the UN Charter did notexpressly clothe the UN with the capacity to

bring an international claim for reparations,the UN nevertheless possessed functionalpersonality. (Reparations for Injuries AdvisoryOpinion, 147)

IOs are deemed to have powers notexpressly granted in their charters where theseunstated powers are either:

(1) implicitly bestowed in theircharters; or(2) necessary to effect powersexpressly granted.

3. Individuals

While States have traditionally beendeemed to be subject of international law,individuals have likewise become in somedegree subjects of that law. However,individuals may assume the status of subjects ofinternational law only on the basis ofagreement by states and in specific context,not in accordance with general or customaryIL.

Illustrations:

(1) Art. 187(c), (d) and (e), UNCLOS:

The jurisdiction of the Sea-BedDisputes Chamber of the ITLOSextends to disputes between parties tocontracts relating to the exploitation ofthe Area. Parties to such contracts maybe natural or juridical persons.

(2) Claims Settlement Declaration of 1981

between US and Iran:

Direct access to the Iran-US ClaimsTribunal is given to individuals for thesettlement of their claims involvingmore than $250,000 either againstIran or the US.

(3) Mixed Claims Tribunals established in theTreaties of Peace concluded at the end ofWWI:

Individuals enjoyed locus standi inactions against States relating tocontracts, debts, and propertyadversely affected by the war.

(4) London Agreement of the InternationalMilitary Tribunal at Nuremberg:


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In crimes against peace, war crimes andcrimes against humanity, internationallaw imposes duties and liabilities uponindividuals as well as upon States.

(5) Art. VI of the Convention on thePrevention and Punishment of the Crime ofGenocide:

Parties charged with genocide refers

to individuals whose responsibility isthus under international law.

E. Diplomatic and consular law

Diplomatic Intercourse, also referred toas the Right of Legation, is the right of theState to send and receivediplomatic missions,which enables States to carry on friendlyintercourse.

Agents of Diplomatic Intercourse Head of State

The head of State represents thesovereignty of the State, and enjoys the right

to special protection for his physical safety andthe preservation of his honor and reputation.Upon the principle of exterritoriality , hisquarters, archives, property and means oftransportation are inviolate. He is immunefrom criminal and civil jurisdiction, exceptwhen he himself is the plaintiff, and is notsubject to tax or exchange or currencyrestrictions.

The Foreign Office

The body entrusted with the conductof actual day-to-day foreign affairs. It isheaded by a Secretary or a Minister who, inproper cases, may make binding declarationson behalf of his government. (Legal Status ofEastern Greenland Case, 1933)

The Diplomatic Corps

Refers to the collectivity of alldiplomatic envoys accredited to a State.It is composed of:

(1) Head of Missionclassified into:

(a) Ambassadors or nuncios accredited to Heads of State, andother heads of mission of equivalentrank;

(b) Envoys, Ministers and Internunciosaccredited to Heads of State;

(c)

Charges daffaires accredited toMinisters of Foreign Affairs.

(2) Diplomatic Staff those engaged indiplomatic activities and are accordeddiplomatic rank.(3) Administrative and Technical Staff thoseemployed in the administrative and technicalservice of the mission.

(4) Service Staff those engaged in the

domestic service of the mission (Nachura)

NOTE: In the Philippines, the Presidentappoints (Sec. 16, Art.VII, Constitution), sendsand instructs the diplomatic and consularrepresentatives.

Functions and Duties:

(1) Represent the sending State in the receivingState;

(2) Protect in the receiving State the interests

of the sending State and its nationals,within the limits allowed by internationallaw;

(3) Negotiate with the government of thereceiving State;

(4) Ascertain, by all lawful means, theconditions and developments in thereceiving State and reporting the same tothe sending State;

(5) Promote friendly relations between thesending State and receiving State, anddeveloping their economic, cultural and

scientific relations (Art. 3(1), VCDR)(6) If diplomatic relation is severed, entrust the

protection of its nationals to thediplomatic mission of a third Stateacceptable to the receiving State (Art. 45,VCDR)

(7) May protect the interest of a third State byagreement with the receiving State, if thereis no diplomatic relations between thethird State and the receiving State (Art. 46,VCDR)


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Diplomatic Immunities and Privileges (Asked 9

Times in the Bar Exam)

Theoretical Basis of Diplomatic Privileges and

Immunities

(1) Extraterritoriality theory the premises ofthe di

plomatic mission represent a sort ofextension of the territory of the sending State

(2) Representational theory the diplomaticmission personifies the sending State

(3) Functional necessity theoryprivileges andimmunities are necessary to enable thediplomatic mission to perform its functions

F. Treaties

A 'treaty' is:

(1) an international agreement;(2)

concluded between States;(3) in written form;(4)governed by international law;

(5)

whether embodied in a singleinstrument or in two or more relatedinstruments; and

(6) whatever its particular designation -Art.2(1), Vienna Convention on theLaw of Treaties or VCLOT)

Under the VCLOT, the term treaty

includes all agreements between states,regardless of how they are called. Thus, forpurposes of international law, treaties,executive agreements, exchanges of notes, etc.

are all treaties. Note, however, that Philippinelaw makes a distinction between treaties andexecutive agreements. Both are equallybinding, but only treaties require theconcurrence of the Senate to be effective.

Article 2(1) of the Vienna Conventionon the Law of Treaties (Vienna Convention)defines a treaty as follows:

An international agreement concludedbetween States in written form and governed

by international law, whether embodied in asingle instrument or in two or more relatedinstruments and whatever its particulardesignation.

In Bayan Muna v. Romulo 2011), thisCourt held that an executive agreement issimilar to a treaty, except that the former

(a) does not require legislativeconcurrence;

(b)

is usually less formal; and(c) deals with a narrower range of

subject matters.

Despite these differences, to beconsidered an executive agreement, thefollowing three requisites provided under theVienna Convention must nevertheless concur:

(a) the agreement must be betweenstates;

(b)

it must be written; and(c) it must governed by internationallaw.

The first and the third requisites do not obtainin the case at bar.

First, the Supreme Court said thatCNMEG, the Chinese contractor, is neither agovernment nor a government agency, notingthat Contract Agreement was not concludedbetween the Philippines and China, but

between Northrail and CNMEG. Indeed, bythe terms of the Contract Agreement,Northrail is a government-owned or -controlled corporation, while CNMEG is acorporation duly organized and created underthe laws of the Peoples Republic of China.Thus, both Northrail and CNMEG entered intothe Contract Agreement as entities withpersonalities distinct and separate from thePhilippine and Chinese governments,respectively.

Second, neither can it be said thatCNMEG acted as agent of the Chinesegovernment. The fact that the ChineseAmbassador to Manila, in his letter dated 1October 2003, described CNMEG as a "statecorporation" and declared its designation asthe Primary Contractor in the NorthrailProject, did not mean it was to performsovereign functions on behalf of China. Thatlabel was only descriptive of its nature as astate-owned corporation, and did not precludeit from engaging in purely commercial or

proprietary ventures.

Finally, the Contract Agreement itselfexpressly stated that is to be governed byPhilippine law, while as defined in the VCLOT,a treaty or an executive agreement is governedby international law.


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But contrast the holding of the Courtin Northrail with its ruling in the earlier case ofAbaya v. Ebdane (2007), where the HighCourt ruled that a loan agreement, coupledwith an exchange of notes between twogovernments, constitutes an ExecutiveAgreement. The Exchange of Notes indicatedthat the two governments have reached anunderstanding concerning Japanese loans to beextended to the Philippines and that theseloans were aimed at promoting our countrys

economic stabilization and developmentefforts.

An Exchange of Notes is a record of aroutine agreement that has many similaritieswith the private law contract.

The agreement consists of theexchange of two documents, each of theparties being in the possession of the onesigned by the representative of the other.Under the usual procedure, the accepting Staterepeats the text of the offering State to recordits assent. The signatories of the letters may be

government Ministers, diplomats ordepartmental heads. The technique ofexchange of notes is frequently resorted to,either because of its speedy procedure, or,sometimes, to avoid the process of legislativeapproval.

The Supreme Court held that "treaties,agreements, conventions, charters, protocols,declarations, memoranda of understanding,modus vivendi and exchange of notes" all referto "international instruments binding at

international law." Both the 1969 ViennaConvention and the 1986 Vienna Conventiondo not distinguish between the differentdesignations of these instruments. Instead, theirrules apply to all of those instruments as longas they meet the common requirements.

Agreements concluded by the Presidentwhich fall short of treaties are commonlyreferred to as executive agreements and are noless common in our scheme of governmentthan are the more formal instruments: treaties

and conventions. They sometimes take theform of exchange of notes and at other timesthat of more formal documents denominated"agreements" or "protocols".

Requisites for Validity

(1)

Treaty Making Capacity Possessed byall states as an attribute of sovereignty.International organizations also possesstreaty-making capacity, althoughlimited by the organizations purpose.

(2) Competence of theRepresentative/Organ Making theTreaty Generally exercised by the headof state.

Full Powers - Refers to the authority ofa person to sign a treaty or conventionon behalf of a state.

Plenipotentiary - Persons other thanthe head of state, head of governmentor foreign minister must produce suchinstrument in order to sign a treatybinding their government. Such aperson is called a plenipotentiary.

(3) Parties Must Freely Give Consent: If

consent was given erroneously, or itwas induced by fraud, the treaty shallbe voidable.

(4) Object and Subject Matter Must beLawful

(5)

Ratification in Accordance with theConstitutional Process of the PartiesConcerned

Doctrine of Transformation

In Philippine Law, treaties have to be

transformed in order to be part of Philippinelaw.

A treaty is transformed when a

treaty is ratified after it has been concurred inby the Senate (Sec. 21, Art.VII, Constitution).After ratification, a treaty shall be deemed as iflegislated by our Legislature.

La Chemise Lacoste v. Fernandez 1984):

Lacoste, a French corporation, sued

local counterfeiters before Philippine courts.When the counterfeiters challenged its legalpersonality to sue before Philippine courts, theCourt held that the Philippines has ratifiedinternational conventions for the protection ofintellectual property, and it would frustrate theobject of these conventions if Lacoste is barred


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from filing its claims directly in Philippinecourts.

Philippine Law

In the Philippines, the negotiation oftreaties and their ratification are executivefunctions, subject to concurrence of the Senate.Under Sec. 21, Art. VII, (Treaty Clause) of theConstitution, treaties must receive theconcurrence of the Senate before they may beeffective.Pimentel v. Executive Secretary(2005):

The power to ratify is vested in thePresident, subject to the concurrence of theSenate. The role of the Senate is limited onlyto giving or withholding its consent, orconcurrence, to the ratification. Although therefusal of a state to ratify a treaty which hasbeen signed in its behalf is a serious step thatshould not be taken lightly, such decision iswithin the competence of the President alone,which cannot be encroached by SC via a writof mandamus. SC has no jurisdiction over

actions seeking to enjoin the President in theperformance of his official duties.

Amendment or Modification of Treaty

General Rule: Consent of all parties is required.

Exception: If the treaty itself so allows, twoStates may modify a provision only insofar astheir relationship inter se.

Reservations

A unilateral statement made by a stateupon entering a treaty whereby it purports toexclude or modify the legal effect of certainprovision/s of the treaty in their application tothe reserving state (Art. 19, VCLOT).

Exceptions: A reservation shall not operate tomodify or exclude the provisions of a treaty:

(1)

Where the treaty expresslyprohibits reservations ingeneral;

(2)

Where the treaty expresslyprohibits that specific reservationbeing made; or

(3)

Where the reservation isincompatible with treatys object

and purpose (Reservation to the

Genocide Conventions AdvisoryOpinion)

Invalid Treaties

(1)

If the treaty violates a jus cogensnorm of international law (void);

(2) If the conclusion of a treaty isprocured by threat or use of force(void);

(3) Error of fact, provided that such

fact formed an essential basis of astates consent to be bound;

(4)

If the representative of a state wascorrupted to consent by anothernegotiating state;

(5) If consent was obtained throughfraudulent conduct of anothernegotiating state;

(6) If the representative consented inviolation of specific restrictions on

authority, provided:

i. the restriction was notifiedto the other negotiatingStates

ii. prior to the representativeexpressing such consent;

(7)

If consent was given in violation ofprovisions of internal lawregarding competence to conclude

treaties that is manifest and offundamental importance.

Grounds for Termination

(1) Expiration of the term, orwithdrawal of a party inaccordance with the treaty;

(2) Extinction of a party to the treaty,when the treaty rights andobligations would not devolve

upon the successor state;

(3)

Mutual agreement of parties;

(4)

Denunciation or desistance by aparty;


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(5)

Supervening impossibility of

performance;

(6) Conclusion of a subsequentinconsistent treaty;

(7)

Loss of subject matter;

(8) Material breach or violation oftreaty

(9) Fundamental Change ofCircumstance (Rebus sic stantibus)

A contracting state may unilaterallywithdraw from a treaty when a vital orfundamental change of circumstance occurssuch that the foundation upon which itsconsent to be bound initially rested hasdisappeared. (Art. 62, VCLOT)

Requisites of rebus sic stantibus:

(a) Change is so substantial that thefoundation of the treaty has

altogether disappeared

(b)

Change was unforeseen orunforeseeable at the time of thetreatys perfection

(c)

Change was not caused by theparty invoking the doctrine

(d) Doctrine was invoked within areasonable time

(e)

Treatys duration is indefinite

(f)

Doctrine cannot operateretroactively (it must not adverselyaffect provisions which havealready been complied with priorto the vital change)

(10)

Outbreak of war between the parties,unless the treaty relates to the conductof war (ex. The Four GenevaConventions).

(11)Severance of diplomatic relations (ifsuch relationship is indispensable forthe treatys application).

(12)Jus Cogens Application: Emergence ofa new peremptory norm of general

international law which renders voidany existing, conflicting treaty.

1. Vienna Convention on the Law of Treaties

BAYAN v. Zamora,

G.R. No. 138570, October 10, 2000

(VFA as a treaty in international law)

This Court is of the firm view that thephrase recognized as a treaty means that the

other contracting party accepts oracknowledges the agreement as a treaty. To

require the other contracting state, the UnitedStates of America in this case, to submit theVFA to the United States Senate forconcurrence pursuant to its Constitution, is toaccord strict meaning to the phrase.

Well-entrenched is the principle thatthe words used in the Constitution are to begiven their ordinary meaning except wheretechnical terms are employed, in which casethe significance thus attached to them prevails.Its language should be understood in the sense

they have in common use.Moreover, it is inconsequential whether theUnited States treats the VFA only as anexecutive agreement because, underinternational law, an executive agreement is asbinding as a treaty. To be sure, as long as theVFA possesses the elements of an agreementunder international law, the said agreement isto be taken equally as a treaty.

A treaty, as defined by the ViennaConvention on the Law of Treaties, is an

international instrument concluded betweenStates in written form and governed byinternational law, whether embodied in asingle instrument or in two or more relatedinstruments, and whatever its particulardesignation. There are many other terms used

for a treaty or international agreement, someof which are: act, protocol, agreement,compromis d arbitrage, concordat,convention, declaration, exchange of notes,pact, statute, charter and modus vivendi. Allwriters, from Hugo Grotius onward, have

pointed out that the names or titles ofinternational agreements included under thegeneral term treaty have little or no legalsignificance. Certain terms are useful, but theyfurnish little more than mere description.

Article 2(2) of the Vienna Conventionprovides that the provisions of paragraph 1


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regarding the use of terms in the presentConvention are without prejudice to the useof those terms, or to the meanings which maybe given to them in the internal law of theState.

Thus, in international law, there is nodifference between treaties and executiveagreements in their binding effect upon statesconcerned, as long as the negotiatingfunctionaries have remained within theirpowers. International law continues to makeno distinction between treaties and executive

agreements: they are equally bindingobligations upon nations.

Nicolas v. Romulo,

G.R. No. 175888, February 11, 2009

(These are petitions for certiorari, etc.as special civil actions and/or for review of theDecision of the Court of Appeals in LanceCorporal Daniel J. Smith v. Hon. Benjamin T.Pozon, et al., in CA-G.R. SP No. 97212, datedJanuary 2, 2007)

The rule in international law is that aforeign armed forces allowed to enter ones

territory is immune from local jurisdiction,except to the extent agreed upon. The Statusof Forces Agreements involving foreignmilitary units around the world vary in termsand conditions, according to the situation ofthe parties involved, and reflect theirbargaining power. But the principle remains,i.e., the receiving State can exercise jurisdictionover the forces of the sending State only to the

extent agreed upon by the parties.

As a result, the situation involved isnot one in which the power of this Court toadopt rules of procedure is curtailed orviolated, but rather one in which, as isnormally encountered around the world, thelaws (including rules of procedure) of oneState do not extend or apply except to theextent agreed upon to subjects of anotherState due to the recognition of extraterritorialimmunity given to such bodies as visiting

foreign armed forces.

Nothing in the Constitution prohibitssuch agreements recognizing immunity fromjurisdiction or some aspects of jurisdiction(such as custody), in relation to longrecognized subjects of such immunity likeHeads of State, diplomats and members of the

armed forces contingents of a foreign Stateallowed to enter another States territory. On

the contrary, the Constitution states that thePhilippines adopts the generally acceptedprinciples of international law as part of thelaw of the land. (Art. II, Sec. 2).

x x xIt is clear that the parties to the VFA

recognized the difference between custodyduring the trial and detention after conviction,because they provided for a specificarrangement to cover detention. And this

specific arrangement clearly states not onlythat the detention shall be carried out infacilities agreed on by authorities of bothparties, but also that the detention shall be by

Philippine authorities. Therefore, the Romulo-Kenney Agreements of December 19 and 22,2006, which are agreements on the detentionof the accused in the United States Embassy,are not in accord with the VFA itself becausesuch detention is not by Philippine

authorities.

Respondents should therefore complywith the VFA and negotiate withrepresentatives of the United States towards anagreement on detention facilities underPhilippine authorities as mandated by Art. V,Sec. 10 of the VFA.

How may one invoke rules of International

Law before a Philippine court?

International law may be used in thesame manner as citing primary sources of

Philippine laws. It may be invoked by citingtreaties, customary law or general principles ofinternational law as written by highly qualifiedpublicists.

What are the Philippine rules on treatymaking?

Philippine rules on treaty making areenunciated in the 1987 Constitution andExecutive Order No. 59 (1997). Treatyagreements shall have the concurrence of 2/3of the Senate and ratification by the President.

Ichong v. Hernandez

101 Phil. 1155 1957)

Another subordinate argument againstthe validity of the law is the supposedviolation thereby of the Charter of the UnitedNations and of the Declaration of the Human


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Rights adopted by the United Nations GeneralAssembly. We find no merit in the NationsCharter imposes no strict or legal obligationsregarding the rights and freedom of theirsubjects (Hans Kelsen, The Law of the UnitedNations, 1951 ed. pp. 29-32), and theDeclaration of Human Rights contains nothingmore than a mere recommendation or acommon standard of achievement for allpeoples and all nations (Id. p. 39.) That such isthe import of the United Nations Charter aidof the Declaration of Human Rights can beinferred the fact that members of the United

Nations Organizations, such as Norway andDenmark, prohibit foreigners from engaging inretail trade, and in most nations of the worldlaws against foreigners engaged in domestictrade are adopted.

The Treaty of Amity between theRepublic of the Philippines and the Republic ofChina of April 18, 1947 is also claimed to beviolated by the law in question. All that thetreaty guarantees is equality of treatment tothe Chinese nationals "upon the same terms as

the nationals of any other country." But thenationals of China are not discriminatingagainst because nationals of all other countries,except those of the United States, who aregranted special rights by the Constitution, areall prohibited from engaging in the retail trade.But even supposing that the law infringes uponthe said treaty, the treaty is always subject toqualification or amendment by a subsequentlaw (U. S. vs. Thompson, 258, Fed. 257, 260),and the same may never curtail or restrict thescope of the police power of the State (plaston

vs. Pennsylvania, 58 L. ed. 539.)

Gonzales v. Hechanova

9 SCRA 230 1963)

It is contended that the Government ofthe Philippines has already entered into two(2) contracts for the Purchase of rice, one withthe Republic of Vietnam, and another with theGovernment of Burma; that these contractsconstitute valid executive agreements underinternational law; that such agreements

became binding effective upon the signingthereof by representatives the parties thereto;that in case of conflict between Republic Acts

Nos. 2207 and 3452 on the one hand,and aforementioned contracts, on the other,the latter should prevail, because, if a treatyand a statute are inconsistent with each other,

the conflict must be resolved under theAmerican jurisprudence in favor of the onewhich is latest in point of time; that petitionerherein assails the validity of acts of theExecutive relative to foreign relations in theconduct of which the Supreme Court cannotinterfere; and the aforementioned contractshave already been consummated, theGovernment of the Philippines having alreadypaid the price of the rice involved thereinthrough irrevocable letters of credit in favor ofthe sell of the said commodity. We find nomerit in this pretense.

The Court is not satisfied that thestatus of said tracts as alleged executiveagreements has been sufficiently established.The parties to said contracts do not pear tohave regarded the same as executiveagreements. But, even assuming that saidcontracts may properly considered as executiveagreements, the same are unlawful, as well asnull and void, from a constitutional viewpoint,said agreements being inconsistent with theprovisions of Republic Acts Nos. 2207 and

3452. Although the President may, under theAmerican constitutional system enter intoexecutive agreements without previouslegislative authority, he may not, by executiveagreement, enter into a transaction which isprohibited by statutes enacted prior thereto.Under the Constitution, the main function ofthe Executive is to enforce laws enacted byCongress. The former may not interfere in theperformance of the legislative powers of thelatter, except in the exercise of his veto power.He may not defeat legislative enactments that

have acquired the status of law, by indirectlyrepealing the same through an executiveagreement providing for the performance ofthe very act prohibited by said laws. TheAmerican theory to the effect that, in theevent of conflict between a treaty and astatute, the one which is latest in point of timeshall prevail, is not applicable to the case atbar, for respondents not only admit, but, alsoinsist that the contracts adverted to are nottreaties. Said theory may be justified upon theground that treaties to which the United States

is signatory require the advice and consent ofits Senate, and, hence, of a branch of thelegislative department. No such justificationcan be given as regards executive agreementsnot authorized by previous legislation, withoutcompletely upsetting the principle ofseparation of powers and the system of checksand balances which are fundamental in our


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constitutional set up and that of the UnitedStates.

As regards the question whether aninternational agreement may be invalidated byour courts, suffice it to say that theConstitution of the Philippines has clearlysettled it in the affirmative, by providing, inSection 2 of Article VIII thereof, that theSupreme Court may not be deprived "of itsjurisdiction to review, revise, reverse, modify,or affirm on appeal, certiorari, or writ of erroras the law or the rules of court may provide,

final judgments and decrees of inferior courtsin(1) All cases in which the constitutionalityor validity of any treaty, law, ordinance, orexecutive order or regulation is in question". Inother words, our Constitution authorizes thenullification of a treaty, not only when itconflicts with the fundamental law, but, also,when it runs counter to an act of Congress.

Taada v. Angara,

G.R. No. 118295, May 2, 1997

Third issue (WTO Agreement and LegislativePower)

The Constitution has not really shownany unbalanced bias in favor of any businessor enterprise, nor does it contain any specificpronouncement that Filipino companiesshould be pampered with a total proscriptionof foreign competition. On the other hand,respondents claim that WTO/GATT aims tomake available to the Filipino consumer thebest goods and services obtainable anywhere

in the world at the most reasonable prices.Consequently, the question boils down towhether WTO/GATT will favor the generalwelfare of the public at large.

This Court notes and appreciates theferocity and passion by which petitionersstressed their arguments on this issue.However, while sovereignty has traditionallybeen deemed absolute and all-encompassingon the domestic level, it is however subject torestrictions and limitations voluntarily agreed

to by the Philippines, expressly or impliedly, asa member of the family of nations.Unquestionably, the Constitution did notenvision a hermit-type isolation of the countryfrom the rest of the world. In its Declaration ofPrinciples and State Policies, the Constitution"adopts the generally accepted principles ofinternational law as part of the law of the

land, and adheres to the policy of peace,equality, justice, freedom, cooperation andamity, with all nations." By the doctrine ofincorporation, the country is bound bygenerally accepted principles of internationallaw, which are considered to be automaticallypart of our own laws. One of the oldest andmost fundamental rules in international law ispacta sunt

servanda

internationalagreements must be performed in good faith."A treaty engagement is not a mere moralobligation but creates a legally bindingobligation on the parties . . . A state which has

contracted valid international obligations isbound to make in its legislations suchmodifications as may be necessary to ensurethe fulfillment of the obligations undertaken."

By their inherent nature, treaties reallylimit or restrict the absoluteness of sovereignty.By their voluntary act, nations may surrendersome aspects of their state power in exchangefor greater benefits granted by or derived froma convention or pact. After all, states, likeindividuals, live with coequals, and in pursuit

of mutually covenanted objectives andbenefits, they also commonly agree to limit theexercise of their otherwise absolute rights.Thus, treaties have been used to recordagreements between States concerning suchwidely diverse matters as, for example, thelease of naval bases, the sale or cession ofterritory, the termination of war, theregulation of conduct of hostilities, theformation of alliances, the regulation ofcommercialrelations, the settling of claims, thelaying down of rules governing conduct in

peace and the establishment of internationalorganizations. The sovereignty of a statetherefore cannot in fact and in reality beconsidered absolute. Certain restrictions enterinto the picture:

(1) limitations imposed by the very natureof membership in the family ofnations; and

(2) limitations imposed by treatystipulations.

As aptly put by John F. Kennedy,"Today, no nation can build its destiny alone.The age of self-sufficient nationalism is over.The age of interdependence is here."

In the foregoing treaties the Philippineshas effectively agreed to limit the exercise of itssovereign powers of taxation, eminent domain


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and police power. The underlyingconsideration in this partial surrender ofsovereignty is the reciprocal commitment ofthe other contracting states in granting thesame privilege and immunities to thePhilippines, its officials and its citizens. Thesame reciprocity characterizes the Philippinecommitments under WTO-GATT.

Treaty-making under Philippine law

Pimentel v. Office of the Executive Secretary,

G.R. No. 158088, July 6, 2005

The case is about a petition formandamus filed by Pimentel et al. to compelthe Office of the Executive Secretary and theDepartment of Foreign Affairs to transmit thesigned copy of the Rome Statute of theInternational Criminal Court to the Senate ofthe Philippines for its concurrence inaccordance with Section 21, Article VII of the1987 Constitution. Justice Isagani Cruz, in hisbook on International Law, describes thetreaty-making process in this wise: The usual

steps in the treaty-making process are:negotiation, signature, ratification, andexchange of the instruments of ratification. Thetreaty may then be submitted for registrationand publication under the U.N. Charter,although this step is not essential to thevalidity of the agreement as between theparties.

Negotiation may be undertakendirectly by the head of state but he nowusually assigns this task to his authorized

representatives. These representatives areprovided with credentials known as fullpowers, which they exhibit to the othernegotiators at the start of the formaldiscussions. It is standard practice for one ofthe parties to submit a draft of the proposedtreaty which, together with the counter-proposals, becomes the basis of the subsequentnegotiations. The negotiations may be brief orprotracted, depending on the issues involved,and may even collapse in case the parties are

unable to come to an agreement on the points

under consideration. If and when thenegotiators finally decide on the terms of thetreaty, the same is opened for signature. Thisstep is primarily intended as a means ofauthenticating the instrument and for thepurpose of symbolizing the good faith of theparties; but, significantly, it does not indicatethe final consent of the state in cases where

ratification of the treaty is required. Thedocument is ordinarily signed in accordancewith the alternat, that is, each of the severalnegotiators is allowed to sign first on the copywhich he will bring home to his own state.Ratification, which is the next step, is theformal act by which a state confirms andaccepts the provisions of a treaty concluded byits representatives. The purpose of ratificationis to enable the contracting states to examinethe treaty more closely and to give them anopportunity to refuse to be bound by it shouldthey find it inimical to their interests. It is for

this reason that most treaties are made subjectto the scrutiny and consent of a department ofthe government other than that whichnegotiated them.

x x xThe last step in the treaty-making

process is the exchange of the instruments ofratification, which usually also signifies theeffectivity of the treaty unless a different datehas been agreed upon by the parties. Whereratification is dispensed with and no effectivityclause isembodied in the treaty, the instrument

is deemed effective upon its signature.

Petitioners submission that the

Philippines is bound under treaty law andinternational law to ratify the treaty which ithas signed is without basis. The signature doesnot signify the final consent of the state to thetreaty. It is the ratification that binds the stateto the provisions thereof. In fact, the RomeStatute itself requires that the signature of therepresentatives of the states be subject toratification, acceptance or approval of the

signatory states. Ratification is the act by whichthe provisions of a treaty are formallyconfirmed and approved by a State. Byratifying a treaty signed in its behalf, a stateexpresses its willingness to be bound by theprovisions of such treaty. After the treaty issigned by the states representative, the

President, being accountable to the people, isburdened with the responsibility and the dutyto carefully study the contents of the treatyand ensure that they are not inimical to theinterest of the state and its people. Thus, the

President has the discretion even after thesigning of the treaty by the Philippinerepresentative whether or not to ratify thesame.

The Vienna Convention on the Law ofTreaties does not contemplate to defeat oreven restrain this power of the head of states.


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If that were so, the requirement of ratificationof treaties would be pointless and futile. It hasbeen held that a state has no legal or evenmoral duty to ratify a treaty which has beensigned by its plenipotentiaries. There is nolegal obligation to ratify a treaty, but it goeswithout saying that the refusal must be basedon substantial grounds and not on superficialor whimsical reasons. Otherwise, the otherstate would be justified in taking offense. Itshould be emphasized that under ourConstitution, the power to ratify is vested inthe President, subject to the concurrence of the

Senate. The role of the Senate, however, islimited only to giving or withholding itsconsent, or concurrence, to the ratification.Hence, it is within the authority of thePresident to refuse to submit a treaty to theSenate or, having secured its consent for itsratification, refuse to ratify it. Although therefusal of a state to ratify a treaty which hasbeen signed in its behalf is a serious step thatshould not be taken lightly, such decision iswithin the competence of the President alone,which cannot be encroached by this Court via

a writ of mandamus. This Court has nojurisdiction over actions seeking to enjoin thePresident in the performance of his officialduties. The Court, therefore, cannot issue thewrit of mandamus prayed for by thepetitioners as it is beyond its jurisdiction tocompel the executive branch of thegovernment to transmit the signed text ofRome Statute to the Senate. Petition wasdismissed.

G. Nationality and Statelessness

Nationality is a legal bondhaving as itsbasis a social fact of attachment. NottebohmCase(Lechtenstein v. Guatemala, 1955)

Nationality of juridical persons shall be in theplace of registration. (Barcelona Traction Case,Belgium v.Spain, 1970)

Is nationality different fromcitizenship

Yes. Nationality refers to membershipin a nation (ethnic, cultural) while citizenship

refers to membership in a state (political).

Who determines whether an individual is a

national (or citizen) of a certain state?

It is usually the state who determinestheir nationals or citizen. This was affirmed in

PCIJ Advisory Opinion on Tunis and MoroccoNationality Decrees (1923).

Are there international rules on nationality?

Rule 1: Each state determines who its nationalsare.

Limitation 1: custom, Art.15 of UDHR

(1) Everyone has a right a right to anationality.

(2) No one shall be arbitrarily deprived of

his nationality nor denied the right tochange his nationality.

Limitation 2: treaty, Convention on theReduction of Statelessness (NOTE: PH not aparty)

Bases for determining membership in political

entity

Accident of birth Free choice

Membership in political entity determines

Status

Legal rights

Importance of membership in political entity

Individual may ask for protection

State may claim right to protect

Diplomatic protection theory:

-injury to national is injury to the state

Statelessness

The condition or status of anindividual who is born without any nationalityor who loses his nationality without retainingor acquiring another. (Cruz)

The Universal Declaration of Human Rights:

(1)

Everyone has the right to a nationality.(2) No one shall be arbitrarily deprived of

his nationality nor denied the right tochange his nationality.


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Covenant Relating to the Status of Stateless

Persons

A stateless person is entitled to, amongothers, the right to religion and religiousinstruction, access to courts, elementaryeducation, public relief and assistance andrationing of products in short supply, as wellas treatment of no less favorable than thataccorded to aliens.

H. State responsibility

1. Doctrine of state responsibility

STATE RESPONSIBILITY

1. It is the doctrine which holds a stateresponsible for any injury sustained by an alienwithin its jurisdiction. Because of aninternational wrong imputable to it, the statewill be responsible if it is shown that itparticipated in the act or omission complainedof or was remiss in redressing the resultantwrong.

2. Elements of State Responsibility

a, breach of an international obligationb, attributability

3. Types of State responsibility

a, Direct responsibility-attaches to the stateif the wrongful act/omission was effectedthrough any of its superior organs acting onits behalf

b, Indirect responsibility- Acts of thefollowing are attributable to the state:

i, state organs

ii, other persons exercising elements ofgovernmental authority in theabsence or default of the officialauthorities and in circumstancescalling for the exercise of thoseelements of authority

iii, insurrectional or other movementwhich becomes the new government

4. Conditions for the enforcement of thedoctrine of state responsibility

(1) The injured alien must first exhaust alllocal remedies

(2) He must be represented in the int'lclaim for damages by his own state(ordinarily, individuals have nostanding to bring a claim beforeinternational law).

I. Jurisdiction of States

1. Territoriality principle: Thefundamental source of jurisdiction is

sovereignty over territory. A state hasabsolute, though not necessarilyexclusive, power to prescribe,adjudicate, and enforce rules forconduct within its territory.

2.

Nationality principle: Every state hasjurisdiction over its nationals evenwhen those nationals are outside thestate.

3. Protective principle: A state may

exercise jurisdiction over conductoutside its territory that threatens itssecurity, as long as that conduct isgenerally recognized as criminal by thestates in the international community.

4. Universality principle: Recognizes thatcertain offenses are so heinous and sowidely condemned that any state, if itcaptures the offender, may prosecuteand punish that person on behalf ofthe world community regardless of the

nationality of the offender or victim orwhere the crime was committed.

5.

Passive personality principle: A statemay apply law particularly criminallaw to an act committed outside itsterritory by a person not its nationalwhere the victim of the act was itsnational. This principle has not beenordinarily accepted for ordinary tortsor crimes, but is increasingly acceptedas applied to terrorist and other

organized attacks on a states nationalsby reason of their nationality, or toassassination of a states diplomatic

representatives of other officials.


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J. Treatment of aliens

1. Extradition

a) Fundamental principles

1. EXTRADITION is the surrender of aperson by one state to another statewhere he is wanted for prosecutionor, if already convicted, forpunishment.

2. Basis of Extradition: a treaty. Outside

of treaty, there is no rule ininternational law compelling a Stateto extradite anyone. Such may bedone, however, as a gesture ofcomity.

3. Principles:

a. Principle of Specialty - a fugitivewho is extradited may be triedonly for the crime specified in therequest for extradition and such

crime is included in the list ofextraditable offenses in the treaty.

b. Under the Political offenseexception, most extraditiontreaties provide that political andreligious offenders are not subjectto extradition.Attendant Clause- assassination ofhead of state or any member ofhis family is not regarded aspolitical offense for purposes of

extradition. Also for the crime ofgenocide.

c. There can only be extradition ifthere is a treaty between thestates.

b) Procedure

PROCEDURE FOR EXTRADITION: (Judicialand diplomatic process of request andsurrender) PD 1069

a.

Request through diplomaticrepresentative with:

b.

DFA forwards request to DOJc. DOJ files petition for extradition

with RTC,d.

RTC issues summons or warrantof arrest to compel theappearance of the individual;

e. hearing (provide counsel deofficio if necessary)

f.

appeal to CA within 10 dayswhose decision shall be final andexecutory;

g.

decision forwarded to DFAthrough the DOJ;

h. Individual placed at the disposalof the authorities of requestingstate-costs and expenses to beshouldered by requesting state.

c) Distinguished from deportation

Deportationis the expulsion of an alien whois considered undesirable by the local state,usually but not necessarily to his own state. Itis usually a unilateral act of the local state andis made in its own interests.

The Philippines entered into an

extradition treaty with another country which

provided that it would apply crimes

committed before its effectivity. The country

asked the Philippines to extradite X for a crime

committed before the effectivity of the treaty.

X argued the extradition would violate the

prohibition against ex post facto laws. Is he

right?

No. The constitutional prohibitionapplies to penal laws only. The extraditiontreaty is not a penal law.(Wright v. CA, 235SCRA 341)

Secretary of Justice v. Hon. Lantion And Mark

Jimenez (G.R. 139465, Oct. 17, 2000

(overturning the Courts previous decision in322 SCRA 160 dated Jan. 18, 2000)

FACTS: By virtue of an extraditiontreaty between the US and the Philippines, theUS requested for the extradition of MarkJimenez for violations of US tax and electionlaws. Pending evaluation of the extraditiondocuments by the Philippine government,Jimenez requested for copies of the US'extradition request. The Secretary of Justicedenied that request.

ISSUE: During the evaluation stage ofthe extradition proceedings, is privaterespondent entitled to the two basic dueprocess rights of notice and hearing?

HELD: Private respondent is bereft ofthe right to notice and hearing during the


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evaluation stage of the extradition process.Extradition is a proceeding sui generis. It is nota criminal proceeding which will call intooperation all the rights of an accusedguaranteed by the Bill of Rights. The process ofextradition does not involve the determinationof the guilt or innocence of an accused. Hisguilt or innocence will be adjudged in thecourt of the state where he will be extradited.There is NO deprivation of the right to dueprocess.

Dissent (original decision): Under the

extradition treaty, the prospective extraditeemay be provisionally arrested pending thesubmission of the request. Because of thispossible consequence, the evaluation process isakin to an administrative agency conducting aninvestigative proceeding, and partakes of thenature of a criminal investigation. Thus, thebasic due process rights of notice and hearingare indispensable. Assuming that theextradition treaty does not allow for suchrights, the Constitutional right to proceduraldue process must override treaty obligations.

When there is a conflict between internationallaw obligations and the Constitution, theConstitution must prevail.

K. International Human Rights Law

1. Universal Declaration of Human Rights

What is the Universal Declaration of Human

Rights UDHR)?

The UDHR is the basic international

statement of the inalienable and inviolablerights of human beings. It is the firstcomprehensive international human rightsinstrument.

What are the rights covered by the UDHR?

The UDHR proclaims two broadcategory of rights:

(a)

civil and political rights; and

(b)

economic, social, and culturalrights.

Are these rights subject to limitations?

Yes, the exercise of these rights andfreedoms may be subject to certain limitations,which must be determined by law, only for

the purpose of securing due recognition andrespect for the rights of others and of themeeting the just requirements of morality,public order and the general welfare in ademocratic society. Rights may not beexercised contrary to the purposes andprinciples of the UN. (Article 29 of theUDHR)

2. International Covenant on Civil and

Political Rights

What are some of the civil and political rights

recognized under the ICCPR?

1. Right of the peoples to self-determination (art. 1)

2.

Right to an effective remedy (art. 2)3. Equal rights of men and women in the(a)

enjoyment of civil and politicalrights/non-discrimination on the basisof sex (Art. 3)

4. Right to life (art. 6)5.

Freedom from torture or cruel,inhuman or degrading punishment(art. 7)

6.

Freedom from slavery (art. 8)7. Right to liberty and security of person(art. 9)

8. Right to be treated with humanity incases of deprivation of liberty (art. 10)

9.

Freedom from imprisonment forfailure to fulfill a contractual obligation(art. 11)

10.

Freedom of movement and the rightto travel (art. 12)

11.

Right to a fair, impartial and

Documents

Public International Law Green Notes 2015