PUBLIC INTERNATIONAL LAW

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

Sources of International Law

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

State
A ) ELEMENTS OF A STATE:
A State should possess the following qualifications (Art. 1, Montevideo
Convention):
1)
2)
3)
4)

a permanent population;
a defined territory;
government;
capacity to enter into relations with other States.

B) DISTINCTIONS BETWEEN SOVEREIGNTY AND INDEPENDENCE

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

If the obligations are the consequence of the routinary act of

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

an international agreement
concluded between States
in written form
governed by international law
embodied in a single instrument or in 2 or more related instruments.

Q: If not in writing, is it still considered a treaty?

A: Yes. Oral agreements between States are recognized as treaties under customary
international law (but are extremely rare nowadays).

2) DISTINGUISHED FROM EXECUTIVE AGREEMENTS

A. Subject matter of Treaties

[Code: PCI]

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

WITH

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

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

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

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

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

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

2) STARE DECISIS does not apply to the ICJ. Under the statute of the Court, previous
decisions have no binding force; in practice, however, the Court always takes past
decisions into account.
Q: What does it mean to decide a case EX AEQUO ET BONO?
A: It is to rule in justice and fairness -- equity overrides all other rules of law. The ICJ
has no power to decide a case ex aequo et bono, unless all parties agree thereto
[art. 38(2), ICJ Statute].
Q: Who has standing before the ICJ?
A: Only States may be parties in contentious proceedings before the ICJ (art 34, ICJ
Statute).