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De La Salle University

College of Law
2nd Semester January 2016
Public International Law
Atty. Victoria V. Loanzon

Course Objectives:
1.To provide students knowledge on the nature of international law and the structure of the international legal
system;
2. To introduce to the students the basic elements of public international law - its sources and subjects, the
recognition and jurisdiction of states in international law and principles of state responsibility;
3. To allow the students to appreciate several key areas of international law including the law surrounding the
use of force and the significance of human rights; and
4. To provide the students an understanding of international law in the context of the Philippine
constitutional and legal framework and how it influences legislative, executive and judicial action.

I. Defining Public International Law

A. International Law is essentially the law which governs the relationship between nation-states, although
the subjects of international law now also extend to individuals, international organizations and other actors.
The Permanent Court of International Justice in the Lotus Case declares: “International Law governs relations
between states. The rules of law binding upon states therefore emanate from their own free will as expressed
in conventions or by usages generally accepted as expressing principles of law and established in order to
regulate relations between those co-existing independent communities or with a view to the achievement of
common aims.” (Series A, No. 10, 1927, p.18 as cited in Magallona, Fundamentals of Public International
Law (2005), p. 3.

B. Public International Law and Private International Law


Public International Law governs the activities of governments in relation to other governments
while Private International Law governs the activities of individuals, corporations, and other private entities
when they cross national borders.
Entities that create international law: States and international organizations (which are composed of states)

C. Basis of Public International Law


1. Naturalist: Natural Law controls the relations of states
2. Positive: Basis of relations of states is consent (tacit, express or presumed)
3. Groatians or Eclectics: Middle ground between Naturalist and Positive

D. Grand Divisions of Public International Law


1. Laws of Peace
2. Laws of War
3. Laws of Neutrality

E. Theories of International Law


1. Monist Theory: This theory is of the view that both international law and national/municipal law regulate
the same matter and international law holds supremacy even in the sphere of municipal law.
2. Dualist Theory: This theory affirms that international law and domestic law are separate and distinct. The
two legal systems being distinct and separate, international law becomes binding on states by incorporation of
general norms of international law or by transformation of conventional rules of international law into
municipal law.
Read Article 27 of the Vienna Convention on the Law of Treaties

F. Doctrines Governing Relations in International Law


1. Doctrine of Transformation
Legislative action is required to make the treaty enforceable in the municipal sphere.
Kuroda v. Jalandoni, 83 Phil 171 (1979): Supreme Court expressly ruled out the Doctrine of Transformation
when it declared that generally accepted principles of international law form a part of the law of the country
even if the Philippines was not a signatory to the convention embodying them. Section 2 of Article II of the
Philippine Constitution is not confined to the recognition of rules and principles of international law as
contained in treaties to which our government may have been or shall be a signatory
2. Doctrine of Incorporation
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Sec. of Justice v. Lantion G.R.No. 139465, Jan. 18, 2000: 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.
Tanada v. Angara, 272 SCRA 18: The sovereignty of a state therefore cannot in fact and in reality be
considered absolute. Certain restrictions enter into the picture: (1) limitations imposed by the very nature of
membership in the family of nations and (2) limitations imposed by treaty stipulations.
Concept of Auto-limitation
Reagan v. CIR, G.R. No. L-26379, December 27, 1969: Under the principle of auto-limitation, any state may
by its consent, express or implied, submit to a restriction of its sovereign rights. There may thus be a
curtailment of what otherwise is a plenary power.

G. State Responsibility
1. Scope of State Responsibility
Read Draft Articles on Responsibility of States for Internationally Wrongful Acts
Article 1: Responsibility of a State for wrongful acts
Article 2: Elements of internationally wrongful act: act is attributable to the State; and it constitutes a breach
of an international obligation of the State.
Attribution: The act of an organ or official of the State is attributed to the State as its own act to determine
state responsibility for a wrongful act.
Objective responsibility: one arising from breach of duty by reason of result alone of the act or omission as
the cause, without regard as to whether there is fault or culpa.
Articles 4, 5, 6, 7, 8, 9, 10(1) and 11: Acts attributable to the State and are considered its own acts.
2. Legal Consequences of Wrongful Acts
Full reparation: restitution, compensation and satisfaction
Obligation breached continues to exist and performance of obligation subsists.
State must cease the wrongful act and if continues to do so, it must offer assurances and guarantees not
to repeat the same.
3. Acts of Aggression
Read Article 1of U.N. GA Resolution 3314(XXXIX) for Definition;
Read Article 3 for prima facie acts of aggression.
4. Remedies of Parties
Reprisal distinguished from retorsion (Naulilaa Case, 2 RIAA 1102, 1026 (1928) cited in Magallona,
Fundamentals of Public International Law (2005), pp.71-72.
Countermeasures (Air Services Agreement Case, 54 ILR 304, 337 (1979) cited in Magallona, Fundamentals of
Public International Law (2005), p. 73.
4. Belligerency
Two Senses of Belligerency
1. State of War between two or more States
2. Actual Hostilities amounting to Civil War within a State
Requisites of Belligerency:
1. An organized civil government that has control and direction over the armed struggle launched by the
rebels;
2. Occupation of a substantial portion of the state’s territory;
3. Seriousness of the struggle, which must be so widespread thereby leaving no doubt as to the outcome.

H. Criminal Liability of Natural Persons under International Law


Natural persons may be held criminal liable only under conventional international law.
Examples: Charter and Judgment of the Nuremberg International Military Tribunal; International
Tribunal for former Yugoslavia; International Tribunal for Rwanda; Rome Statute of the International
Criminal Court (July 17, 1998)

II. Sources of International Law


A. Primary Sources of International Law:
1. Treaties or International conventions, whether general or particular, establishing rules expressly
recognized by the contesting states.
Types of Treaties
Contract Treaties [Traite-Contrat]: Bilateral arrangements concerning matters of particular or special
interest to the contracting parties; and is a source of “Particular International Law.”
Law-Making Treaty [Traite-Loi]: Concluded by a large number of States for purposes of:
1. Declaring, confirming, or defining their understanding of what the law is on a particular subject;
2. Stipulating or laying down new general rules for future international conduct; and
3. Creating new international institutions
It is a source of “General International Law.”
Stages in the Adoption of a Treaty:
Negotiation
Execution/Signing
Ratification
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Exchange of Instrument/ Deposit of Instrument
Bayan v Zamora, 342 SCRA 449 [2000]: The Court held: “The Executive Agreement is also binding from
the standpoint of international law. x x x in international law executive agreements are equally binding as
treaties upon the States who are parties to them. Additionally, under Article 2{1)(a) of the Vienna Convention
on the Law of Treaties, whatever may be the designation of a written agreement between States, whether it is
indicated as a Treaty, Convention or Executive Agreement, is not legally significant. Still it is considered a
treaty and governed by the international law of treaties.

2. International Custom: International custom, as evidence of a general practice accepted as law.


Read Article 38(1) (b). Two elements: (1) general practice, characterized by uniformity and consistency; and
(2) opinion juris sive necessitates, or recognition of that practice as legally binding.
Read: North Sea Continental Shelf Cases, ICJ Reports, 1969, para 74, p.43: Not only must the acts of the
states amount to a settled practice but there must evidence that practice amounts to legal obligation to comply.
Anglo Norwegian Fisheries Case, ICJ Reports, 1951, pp. 108, 109: When a State continues to object to a
customary norm at the time when it is yet in the process of formation, by such persistent objection the norm
will not be applicable as against that state.
Asylum Case, ICJ Reports, 1950, p.277: Conduct must not only be constant and uniform usage but also be the
“expression of right appertaining to the State granting the asylum and duty upon the territorial State.”

Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010: In dismissing the petition, the Supreme
Court said: “The State, therefore, is the sole judge to decide whether its protection will be granted, to what extent it is
granted, and when will it cease. It retains, in this respect, a discretionary power the exercise of which may be determined
by considerations of a political or other nature, unrelated to the particular case.
The International Law Commission’s (ILC’s) Draft Articles on Diplomatic Protection fully support this traditional view.
They (i) state that "the right of diplomatic protection belongs to or vests in the State,”1(ii) affirm its discretionary nature
by clarifying that diplomatic protection is a "sovereign prerogative" of the State;2 and (iii) stress that the state "has the
right to exercise diplomatic protection on behalf of a national. It is under no duty or obligation to do so."
It has been argued, as petitioners argue now, that the State has a duty to protect its nationals and act on his/her behalf
when rights are injured. However, at present, there is no sufficient evidence to establish a general international obligation
for States to exercise diplomatic protection of their own nationals abroad. Though, perhaps desirable, neither state
practice nor opinio juris has evolved in such a direction. If it is a duty internationally, it is only a moral and not a legal
duty, and there is no means of enforcing its fulfillment.”
Read the text of the original decision for references used by the Supreme Court in the resolution of the case.
Ladlad v. COMELEC, G.R. No. 190582, April 8, 2010: The Supreme Court said: “Using even the most
liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated by various international
law professors, are – at best – de lege ferenda – and do not constitute binding obligations on the Philippines.
Indeed, so much of contemporary international law is characterized by the “soft law” nomenclature, i.e.,
international law is full of principles that promote international cooperation, harmony, and respect for human
rights, most of which amount to no more than well-meaning desires, without the support of either State
practice or opinio juris.”
Norm can be both a treaty rule and a customary norm at the same time.
Nicaragua Case, ICJ Reports, 1986, para 179: ICJ clarifies that even if customary international norms have
been codified or embodied in conventions, this does not mean that they cease to exist or apply as customary
law, even with respect to States which are parties to those conventions.
Read Article 38 of the Vienna Convention on the Law of Treaties.
Norms honoured in international law:
Jus cogens norm: a norm which States cannot derogate or deviate from in their agreements.
Nicaragua Case, ibid.
Examples of jus cogens norm: prohibition against the use of force, law on genocide, the principle of self-
determination, principle of racial non-discrimination, crimes against humanity, prohibition against slavery
and slave trade and piracy, (Brownlie, Principles of Public International Law (1998), p. 515.
Jus dispositivum norm: a norm which allows States to set aside or modify by agreements.
Obligation erga omnes: an obligation every State “towards the international community as a whole.” All
States have a legal interest in its compliance.
Obligations inter se: an obligation that a State must comply with to a particular State under an agreement.

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Barcelona Traction Case, ICJ Reports, 1970, pp.3, 32:”Such obligations derive, for example in
contemporary international law, from outlawing acts of aggression, genocide, also from principles and rules
concerning the basic rights of the human person, including protection from slavery and racial
discrimination.”
Order of Precedence in the application of rules of norms of international law:
Lex superior derogat inferiori: Rules from one source of law prevail over those derived from another source.
Lex posterior derogat priori: Later rules prevail from the earlier rules.
Lex specialis derogat generali: Particular or special rules prevail over general rules.

3. General Principles of Law Recognized by Civilized Nations


Read: Article 38(1) (c) of the Statute of the International Court of Justice
Examples of general principles:
a. estoppel,
b. pacta sunt servanda,
c. consent,
d. res judicata,
e. prescription;
f. due process;
g. principles of justice, equity and peace.
B. Secondary Sources of International Law:
1. Judicial decisions;
2. Teachings of the most highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law; and
3. Soft law.
Read Article 38(1) (d) of the ICJ Statute.
Judicial decisions and teachings of publicists are the means by which rules of law may be verified and may be
regarded as evidence of law. (Magallona, Fundamentals of Public international Law (2005), p. 24.
Paquete Habana Case, 175 U.S. 677.The U.S. Supreme Court acknowledged teachings of qualified
publicists. It said that such works are resorted to by judicial tribunals not for the speculation of their authors
concerning what the law ought to be, but for trustworthy evidence of what the law really is.

III. Subjects of International Law

A. State
1. Preliminaries
International law developed to regulate states because of: the emergence of states, state interaction and the
development of the laws of war
2. Elements of a state:
2.1. Territory
Modes of Acquisition of Territory:
(1). Original Title
(a). Discovery and Occupation
(b). Accretion
(2). Derivative Title
(a). Prescription
(b). Cession
(c). Conquest/Subjugation
(3). Other Modes
(a). Dereliction/Abandonment
(b). Erosion
(c). Revolution
(d). Natural Causes
Political and legal results of secession:
The new state does not have to recognize the government of the state from which it broke
The new state has the right to govern its own citizens
The new state can independently enter into treaties
The new state can have membership in organizations that were previously closed to it, as some
international organizations are open only to certain states.
The new state can be a party to an ICJ case

2.2 Sovereignty
Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the
globe is the right toe exercise therein, to the exclusion of other States, the functions of a State. (Island of
Palmas Case, 2 UNRIAA, 1928, 829 at 838-9).

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Principle of Sovereign Immunity: a State on account of its status requiring sovereign equality is not subject
to judicial process of another state without its consent.
Two Theories of Sovereign Immunity:
Theory of Absolute Immunity: all acts of a State are immune from judicial process by other States.
Theory of Restrictive Immunity: acts may be distinguished to determine suability of a State (jure imperii and
jure gestionis)
Principles Governing the Principle of Equality among States:
(a): States are juridically equal;
(b) Each State shall enjoy the rights inherent to full sovereignty;
(c) Each State has the duty to respect the personality of other States;
(d) The territorial integrity and political integrity and political independence of the State are
inviolable;
(e) Each State has the right freely to choose and develop its political, social, economic and cultural
systems; and
(f) Each State has the duty to comply fully and in good faith its international obligations and to live in
peace with other States.
State Jurisdiction: competence of the State to prescribe rules of conduct, to enforce its legal processes and to
adjudicate controversies and claims.
Bases for State’s Exercise of Criminal Jurisdiction:
(a) territoriality principle
(b) nationality principle
(c) protective or security principle
(d) universality principle
Extradition of Natural Persons, how executed:
(a) through diplomatic negotiations based on comity or friendly relations between two States
concerned; or (b) by means of an extradition treaty.

Fundamental Rights of States [ S P E E D ]


1. Right to Sovereignty and Independence;
2. Right to Property and Jurisdiction;
3. Right to Existence and Self-Defense
4. Right to Equality
5. Right to Diplomatic Intercourse

2.3. People are those who inhabit the territory from whom the state derives its powers. They are:
(a). the inhabitants of the State
(b). must be numerous enough to be self-sufficing and to defend themselves and small enough to be
easily administered and sustained.
(c). the aggregate of individuals of both sexes who live together as a community despite racial or
cultural differences
(d). groups of people which cannot comprise a State:
i. Amazons – not of both sexes; cannot perpetuate themselves
ii. Pirates – considered as outside the pale of law, treated as an enemy of all mankind; “hostis humani
generis”
iii. Nomadic tribes -will not constitute a State
2.4. Government: Political structure/organs, through which the will of the State is formulated, expressed
and realized.
Difference between a “state” and a “government”
States, not governments, are the bearers of rights and obligations under international law. However, how a
state governs internally may be relevant to statehood and recognition of governments

3. Recognition of States
3.1. Theories on nature and effect of recognition
Constitutive Theory: maintains that it is the act of recognition which constitutes or creates the statues of a
State as a subject of public international law and thus gives it a legal personality.
Declaratory Theory: asserts that recognition merely confirms the acceptance of the States of the status of the
entity as a State.
3.2. Functions of Recognition:
First, the determination of statehood is a question of law.
Second, the act of recognition is a condition for the establishment of formal, optional and bilateral relations
including diplomatic relations and the conclusion of treaties.
Three different approaches to recognition of governments by other states:
(a) Traditional approach: States consider four factors in deciding whether to recognize a state:
(1) effectiveness of control
(2) stability and permanence
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(3) popular support
(4) ability and willingness to fulfill obligations
(b) Estrada doctrine: when a new government comes to power either through constitutional means or
otherwise, its relations with other states remain unchanged.
This was created by the Mexican government, which found that it would be insulting to make determinations
about recognition of governments because it would involve passing judgment on the internal affairs of other
states.
(c) Tobar doctrine: States will not recognize governments which come into power as a consequence of a coup
or of a revolution against the government, so long as the freely elected representatives of the people thereof
have not constitutionally reorganized the country.

3.3. Consequences of Recognition of Government


1. The recognized government or State acquires the capacity to enter into diplomatic relations with
recognizing States and to make treaties with them.
2. The recognized government or State acquires the right of suing in the courts of law of the recognizing
States.
3. It is immune from the jurisdiction of the courts of law of recognizing States.
4. It becomes entitled to demand and receive possession of property situated within the jurisdiction of a
recognizing State, which formerly belonged to the preceding government.
5. Its effect is to preclude the courts of recognizing State from making the new State liable for any judgment
on the legality of its acts, past and future since recognition is retroactive.

Marcos v. Manglapus, G. R. No. 88211, 15 September 1989: The Supreme Court held that:
“The Constitution limits resort to the political question doctrine and broadens the scope of judicial
inquiry…But nonetheless there remain issues beyond the Court’s jurisdiction the determination of which is
exclusively for the President…We cannot, for example, question the President’s recognition of a foreign
government, no matter how premature or improvident such action may appear.”

B. Individuals and Juridical Entities


Government of Hong Kong v. Judge Olalia, Jr. and Muñoz, GR No. 153675, 19 April 2007: The Supreme
Court said that the vulnerable doctrine that the subjects of international law are limited only to states was
dramatically eroded towards the second half of the past century. For one, the Nuremberg and Tokyo trials
after World War II resulted in the unprecedented spectacle of individual defendants for acts characterized as
violations of the laws of war, crimes against peace, and crimes against humanity. Recently, under the
Nuremberg principle, Serbian leaders have been persecuted for war crimes and crimes against humanity
committed in the former Yugoslavia. These significant events show that the individual person is now a valid
subject of international law.”

C. International Organizations
Although previously the main subject of international law was the State, international law has evolved in the
last century to include other subjects, such as international organizations, in particular the United Nations

What is an international organization?


An international organization is a body created by a treaty with a permanent institutional structure whose
membership consists either exclusively or in large part of states. Treaties are the constituent instruments of an
international organization.
Are international organizations subjects of international law?
International organizations are subjects of international law because they have both duties and rights under
international law, and because they can make international law.

IV. Law of the United Nations

A. Role of the United Nations: As an offshoot of the horrors of World War II, the community of nations
established the United Nations to build a world public order.
In the past 50 years, there has been a rapid increase in the number of states that exist. When the United
Nations was formed in 1945, it had only 51 states members; now the United Nations has 191 states as
members.

B. Crucial Elements of World Public Order


1. Article 1: prohibits the threat or use of force; settlement of disputes by peaceful means
2. Article 42: empowers the Security Council as enforcement measure “take action by air, sea or land forces
as may be necessary”

C. Recognition of the Juridical Personality of the United Nations


Reparation for Injuries Case (ICJ Reports, 1949, pp.178-79): As an entity the United Nations exercise and
enjoy functions and rights which can only be explained on the basis of the possession of a large measure of
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international personality and capacity to operate on a national plane. Under Section1, Article 1 of its Charter,
the U.N., and a subject of international law, has the capacity to:
(a) to contract;
(b) to acquire and dispose of immovable and movable property; and
(c) to institute legal proceedings.

D. United Nations as an International Organization


1. The Principal Organs
General Assembly (GA)
Six main committees:
1st Committee - Disarmament & International Security
2nd - Economic & Financial
3rd - Social, Humanitarian & Cultural
4th - Special Political & Decolonization
5th - Administrative & Budgetary
6th - Legal
Security Council (SC)
SC Composition
Composed of 15 members, five (5) of which are permanent. The so-called Big Five are
China, France, the European Union, the United Kingdom, and the United States.
The other ten members are elected for 2-year terms by the GA, 5 from the African and Asian
states, 1 from Eastern European states, 2 from Latin American states, and 2 from Western
European and other states. Their terms have been so staggered as to provide for the retirement
of ½ of them every year.

Security Council Voting Rules


Each member of the SC has 1 vote, but distinction is made between the permanent and the
non-permanent members in the decision of substantive questions.
Yalta Voting Formula
(a. Procedural matters – 9 votes of any of SC members
b. Substantive matters – 9 votes including 5 permanent votes.
No member, permanent or not, is allowed to vote on questions concerning the pacific
settlement of a dispute to which it is a party.
Rule of Great-Power Unanimity: a negative vote by any permanent member on a non-
procedural matter often referred to as “veto”, means rejection of the draft resolution or
proposal, even if it has received 9 affirmative votes.
- Abstention or absence of a member is not regarded as veto

Economic and Social Council (ESC)


Trusteeship Council (TC)
International Court of Justice (ICJ)
Secretariat

2. Subsidiary Organs – those which was created by the Charter itself or which it allows to be created
whenever necessary by the SC or GA.
Little Assembly – Interim Committee created in 1947 for a term of one year and re-established in
1949 for an indefinite term. Composed of one delegate for each member-state, it meets when the
General Assembly is in recess and assists this body in the performance of its functions.
Military Staff Committee
Human Rights Commission

3. Specialized Agencies – not part of the UN, but have been brought into close contact with it because of
their purposes and functions, such as:
World Health Organization
International Monetary Fund
Technical Assistance Board
UNICEF
UNDP
UN High Commissioner for Refugees
FAO

E. The International Court of Justice

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1. What is the ICJ: The ICJ is the judicial organ of the United Nations. All members of the United Nations
are ipso facto parties to the Statute of the ICJ. A non-member may become a party on conditions to be
determined in each case by the General Assembly upon the recommendation of the Security Council.
2. What are the principal functions of the ICJ?
(a). To render advisory opinions; and
(b).To decide contentious cases which includes:
(i). The interpretation of any treaty, any question of international law,
(ii). The existence of any fact which if established would constitute a breach of international
obligation; and
(iii). The nature and extent of reparation to be made for the breach of international obligation.
The Holy See v. Rosario, Jr., 238 SCRA 524, 533-534, Dec. 1, 1994, En Banc: State is not lost when one of
its elements is changed; it is lost only when at least one of its elements is destroyed. State does not lose its
identity but remains one and the same international person notwithstanding changes in the form of its
government, territory, people, or sovereignty.

3. The Jurisdiction of the ICJ


The Court is competent to entertain a dispute only if the States concerned have accepted its jurisdiction in one
or more of the following ways:
(a). by the conclusion between them of a special agreement to submit the dispute to the Court;
(b). by virtue of a jurisdictional clause, i.e., typically, when they are parties to a treaty containing a
provision whereby, in the event of a disagreement over its interpretation or application, one of them
may refer the dispute to the Court. Several hundred treaties or conventions contain a clause to such
effect; or
(c). through the reciprocal effect of declarations made by them under the Statute whereby each has
accepted the jurisdiction of the Court as compulsory in the event of a dispute with another State
having made a similar declaration. The declarations of 65 States are at present in force, a number of
them having been made subject to the exclusion of certain categories of dispute.

4. Composition, Term of Office, Voting Rules and Inhibitions of Judges


The ICJ is composed of 15 judges.
Each judge serves a term of 9 years, staggered at three yea intervals by dividing the judges first elected into
three equal groups and assigning them by lottery terms of three, six and nine years respectively. Immediate
re-election is allowed. The President and the Vice President elected by the Court for three years may also be
re-elected. Terms of office of 5 of the 15 members shall expire at the end of every 3 years.
ICJ Voting Rules
All questions before the Court are decided by a majority of the judges present, the quorum being nine when it
is sitting en banc. In case of tie, the President or his substitute shall have cast a vote.
Rule for Inhibition of Judges
No judge may participate in the decision of a case in which he has previously taken part as agent, counsel or
advocate for one of the parties, or as a member of a national or international court, or of a commission of
injury, or in any other capacity.
Nicaragua Case (1986 ICJ Report 14), The International Court of Justice considered the planting mines by
one state within the territorial waters of another as a violation of Art. 2(4) of the UN Charter. If the support
provided by America to rebels of Nova goes beyond the mere giving of monetary or psychological support
but consist in the provision of arms and training, the acts of America can be considered as indirect aggression
amount to another violation of Art. 2(4).
In addition, even if the provision of support is not enough to consider the act a violation of the non-use of
force principle, this is a violation of the principle of non-intervention in customary international law.

5. What is the relationship of ICJ with the International Criminal Court (ICC)? The ICC is an
independent judicial institution created by the treaty known as Rome Statute with the power to try and punish
individuals for the most serious crimes of international concern, to include the following:
1. Genocide
2. Crimes against humanity
3. Crimes of aggression, and
4. War crimes.

Pimentel, Jr., v. Office of the Executive Secretary, 462 SCRA 622, 6 July 2005
This is a petition for mandamus to compel the Office of the Executive Secretary and the Department of
Foreign Affairs to transmit the signed copy of the Rome Statute of the International Criminal Court to the
Senate of the Philippines for its concurrence in accordance with §21, Article VII of the 1987 Constitution.
The Court held: “In our system of government, the President, being the head of state, is regarded as the sole
organ and authority in external relations and is the country’s sole representative with foreign nations (Cortes,
The Philippine Presidency: A Study of Executive Power (1966), p. 187) As the chief architect of foreign
policy, the President acts as the country’s mouthpiece with respect to international affairs. Hence, the
President is vested with the authority to deal with foreign states and governments, extend or withhold
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recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign
relations [Cruz, Philippine Political Law (1996 Ed.), p. 223] . In the realm of treaty-making, the President has
the sole authority to negotiate with other states.”

F. Capacity of United Nations to make International Law


1. Security Council
 The Security Council has the ability to make decisions that are legally binding on member States.
 Under Article 25 of the U.N. Charter, members agree that decisions of the Security Council will be
legally binding on them and all other members.
 Under Article 103 of the U.N. Charter, if there is a conflict between Charter obligations and
obligations under another treaty, Charter obligations prevail (Thus, the Security Council can adopt
policies that require States to abrogate other treaty obligations)
 Under Chapter VII on powers of the Security Council, if it takes action with respect to a threat to
peace, breach of peace or act of aggression under Chapter VII, its action is binding on all State
parties.
2. General Assembly
General Assembly resolutions and recommendations are not binding.
Even if they are not legally binding per se, states sometimes express their opinions about the
status of customary international law through declarations and recommendations of the
General Assembly.
Therefore while they do not have inherently binding force, declarations and recommendations
may constitute opinio juris or become part of state practice.
General Assembly resolutions are binding in the following instances:
The allotment and collection of dues is a mandatory function of the General Assembly
3. International Court of Justice (ICJ)
Article 94 of UN Charter – UN members are obligated to obey decisions of the ICJ (thus, ICJ
decisions constitute law)
Reparation for Injuries Suffered in the Service of the United Nations – advisory opinion of the ICJ,
1949, supra.

V. Diplomatic and Consular Law


Basics:
Diplomats have personal inviolability
The rational for diplomatic immunity has changed over time:
 formerly, it was justified in terms of the sovereignty of the state and the respect due to the state
 now, the rationale is for functional necessity – we give diplomats the protection they need to
discharge their duties, and we want other states to treat our diplomats similarly

Vienna Convention on Diplomatic Relations (p. 342)


Article 29: diplomatic agents are not liable to any form of arrest or detention, subject to wavier by the
sending state.
Article 31: diplomatic agents are immune from civil and administrative jurisdiction, except in the case
of…an action relating to any professional or commercial activity exercised by the diplomatic agent in the
receiving state outside his official functions
Exceptions:
(a) A real action relating to private immovable property situated in the territory of the receiving State, unless he holds
it on behalf of the sending State for the purposes of the mission;
(b) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee
as a private person and not on behalf of the sending State;
(c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State
outside his official functions.

Two categories of diplomatic immunity:


– Immunity ratione personae – procedural
 Immunity that attaches to the person of the diplomat while he is a diplomat
 This is irrelevant for former diplomats
– Immunity ratione materiae – substantive
 This is normally irrelevant while a person is a diplomat; we look at it for former officials (it is applied
retrospectively)
 When a person ceases to be a diplomat, or his government waives his immunity, the person retains
substantive immunity for actions he performs in his civil function
o The definition of “official acts” is not always clear

A. Origin of Diplomatic Intercourse

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India, China and Egypt showed practices observing respect for their emissaries and even recognizing the
sacred character of their office even before the rise of the Greek civilization.
On December 7, 1959, the General Assembly of the United Nations, by Resolution 1450 (XIV), convened an
international conference to consider the question of diplomatic intercourse and immunities. The Conference
adopted (1) the Vienna Convention on Diplomatic Relations, (2) Optional Protocol concerning acquisition of
nationality, and (3) Optional Protocol concerning the compulsory settlement of disputes. (Jorge Coquia and
Miriam Defensor Santiago, Public International Law, U.P. Law Complex, 1984, p. 485)

B. THE RIGHT OF LEGATION


It is the right to send and receive diplomatic missions. It is strictly not a right since no State can be compelled
to enter into diplomatic relations with another State. Diplomatic relations is established by mutual consent
between two States.

The right of legation is purely consensual. If it wants to, a state may shut itself from the rest of the world, as
Japan did until the close of the 19th century. However, a policy of isolation would hinder the progress of a
state since it would be denying itself of the many benefits available from the international community.
Active right of legation – send diplomatic representatives
Passive right of legation – receive diplomatic representatives
Resident Missions

C. Classification of Diplomatic Representatives [ A N E M I C ]


1. Ambassadors or nuncios accredited to Heads of State and other heads of missions of equivalent rank, who
when abroad are allowed to represent the person of their sovereign;
2. Envoys, ministers or persons accredited to the sovereign; and
3. Charge’s d’ affaires who are accredited to the minister of foreign affairs.
The appointment of diplomats is not merely a matter of municipal law for the receiving state is not obliged to
accept a representative who is a persona non grata to it. Indeed, there have been cases when duly accredited
diplomatic representatives have been rejected, resulting in strained relations between the sending and
receiving state.

How are diplomatic agents chosen?


To avoid such awkward situation, most states now observe the practice of agreation, by means of which
inquiries are addressed to the receiving state regarding a proposed diplomatic representative of the sending
state. It is only when the receiving state manifests its agreement or consent that the diplomatic representative
is appointed and formally accredited.
Agreation: It is a practice of the states before appointing a particular individual to be the chief of their
diplomatic mission in order to avoid possible embarrassment.
It consists of two acts:
(i). The Inquiry, usually informal, addressed by the sending state to the receiving state regarding the
acceptability of an individual to be its chief of mission; and
(ii). The agreement, also informal, by which the receiving state indicates to the sending state that such
person, would be acceptable.

Letter of Credence (Letre d’ Creance)


The document, which the envoy receives from his government accrediting him to the foreign state to which he
is being sent. It designates his rank and the general object of his mission and asks that he be received
favorably and that full credence be given to what he says on behalf of his state.

Functions of diplomatic representatives


The functions of diplomatic mission consist inter alia in:
(a) Representing the sending state in the receiving state.
(b) Protecting in the receiving state the interests of the sending state and its nationals.
(c) Negotiating with the government of the receiving state.
(d) Ascertainment through lawful means of the conditions and developments in the receiving
state and reporting thereon to the government of the sending state.
(e) Promoting friendly relations between the sending and receiving state and developing their
economic, cultural and scientific relations.
(f) In some cases, representing friendly governments at their request.

Consular Relations:
Letter Patent (Letre d’ Provision)
The appointment of a consul is usually evidenced by a commission, known sometimes as letter patent or letre
d’ provision, issued by the appointing authority of the sending state and transmitted to the receiving state
through diplomatic channels.

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Consuls belong to a class of state agents distinct from that of diplomatic officers. They do not represent their
state in its relations with foreign states and are not intermediaries through whom matters of state are discussed
between governments.
They look mainly after the commercial interest of their own state in the territory of a foreign state.
They are not clothed with diplomatic character and are not accredited to the government of the country where
they exercised their consular functions; they deal directly with local authorities.

Two Kinds of Consuls


1. consules missi – professional or career consuls who are nationals of the sending state and are required to
devote their full time to the discharge of their duties.
2. consules electi –may or may not be nationals of the sending state and perform their consular functions only
in addition to their regular callings.
Consuls derive their authority from two principal sources, to wit, the letter patent or letter ‘de provision,
which is the commission issued by the sending state, and the exequator, which is the permission given them
by the receiving state to perform.

Consular Functions: Article 6 of the Vienna Convention on Consular Relations (1963) that consular
functions shall consist of:
(a) protecting in the receiving State the interests of the sending State and of its nationals, both
individuals and bodies corporate, within the limits permitted by international law;
(b) furthering the development of commercial, economic, cultural and scientific relations between the
sending State and the receiving State and otherwise promoting friendly relations between them in
accordance with the provisions of the present Convention;
(c) ascertaining by all lawful means conditions and developments in the commercial, economic,
cultural and scientific life of the receiving State, reporting thereon to the Government of the sending
State and giving information to persons interested;
(d) issuing passports and travel documents to nationals of the sending State, and visas or appropriate
documents to persons wishing to travel to the sending State;
(e) helping and assisting nationals, both individuals and bodies corporate, of the sending State;
(f) acting as notary and civil registrar and in capacities
(g) safeguarding the interests of nationals, both individuals and bodies corporate, of the sending
States in cases of succession mortis causa in the territory of the receiving State, in accordance with
the laws and regulations of the receiving State;
(h) safeguarding, within the limits imposed by the laws and regulations of the receiving State, the
interests of minors and other persons lacking full capacity who are nationals of the sending State,
particularly where any guardianship or trusteeship is required with respect to such persons;
(i) subject to the practices and procedures obtaining in the receiving State, representing or arranging
appropriate representation for nationals of the sending State before the tribunals and other authorities
of the receiving State, for the purpose of obtaining, in accordance with the laws and regulations of the
receiving State, provisional measures for the preservation of the rights and interests of these nationals,
where, because of absence or any other reason, such nationals are unable at the proper time to assume
the defense of their rights and interests;
(j) transmitting judicial and extrajudicial documents or executing letters rogatory or commissions to
take evidence for the courts of the sending State in accordance with international agreements in force
or, in the absence of such international agreements, in any other manner compatible with the laws and
regulations of the receiving State;
(k) exercising rights of supervision and inspection provided for in the laws and regulations of the
sending State in respect of vessels having the nationality of the sending State, and of aircraft
registered in that State, and in respect of their crews;
(l) extending assistance to vessels and aircraft mentioned in subparagraph (k) of this article, and to
their crews, taking statements regarding the voyage of a vessel, examining and stamping the ship’s
papers, and, without prejudice to the powers of the authorities of the receiving State, conducting
investigations into any incidents which occurred during the voyage, and settling disputes of any kind
between the master, the officers andthe seamen insofar as this may be authorized by the laws and
regulations of the sending State;
(m) performing any other functions entrusted to a consular post by the sending State which are not
prohibited by the laws and regulations of the receiving State or to which no objection is taken by the
receiving State or which are referred to in the international agreements in force between the sending
State and the receiving State.

D. Privileges and Immunities


By way of customary and conventional international law, a diplomatic agent enjoys a wide range of
privileges and immunities, to include among others, the following:
1. Personal inviolability;
2. Inviolability of premises and archives;
3. Right of an official communication;
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4. Exemption from local jurisdiction;
5. Exemption from subpoena as witness;
6. Exemption from taxation
A. Privileges and Immunities

Basis Diplomatic Consular


Scope as to Buildings and premises Premises of the mission includes the Consular premises includes the buildings
building or parts of building and the land or parts of buildings and the land
irrespective of the ownership used for the irrespective of ownership used exclusively
purpose of the mission for the purposes of consular posts
including the residence of the
head of mission
On entry of agents of the receiving GR: The agents of the receiving state may GR: The agents of the receiving state may
state not enter the premises of the mission not enter the consular premises
XPN: Consent of the head of the XPN: Consent of the head of the consular
mission post. Consent is assumed in case of fire or
other disasters requiring prompt
protective action
As to inviolability of baggage Personal baggage of a diplomatic agent Consular bag shall not be opened. It may be
shall not be opened requested that the bag be opened in their
presence by an authorized representative
of the receiving state if they have serious
reason to believe that the bag contains
objects of other articles, documents,
correspondence, or articles
As a witness before the court Not obliged to give evidence as a witness May be called upon to attend as a witness;
if declined, no coercive
measure or penalty may be applied

Differences in the privileges or immunities of diplomatic envoys and consular officers from the civil and criminal
jurisdiction of the receiving State
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.
He shall also enjoy immunity from its civil and administrative jurisdiction
XPNs:
a. A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the
sending State for the purpose of the mission;
b. An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as private
person and not on behalf of the sending State;
c. An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside of his
official functions (Vienna Convention of Diplomatic Relations, Art. 31).

2. A consular officer does not enjoy immunity from the criminal jurisdiction of the receiving State and are not amenable to the
jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular
functions.
However, this does not apply in respect of a civil action either:
1. Arising out of a contract concluded by a consular officer in which he did not enter expressly or impliedly
2. By a third party for damages arising from an accident in the receiving State caused by a vehicle, vessel or aircraft (Vienna Convention
on the Consular Relations, Arts. 41 and 43).

World Health Organization v. Aquino, 48 SCRA 242(1972): The Supreme Court has held that diplomatic
immunity is essentially a political question. Where the plea of diplomatic immunity is recognized and affirmed
by the executive branch, it is the duty of the courts to accept the claim of immunity.

U.S.A. v. Iran, 74 AJIL 743 (May 24, 1980): The U.S. government instituted action against Iran before the
ICJ due to the takeover by student militants of the US Embassy in Tehran and the American consulates in
Tanriz and Shiraz and the detention of some 50 Americans. While the ICJ ruled in favor the U.S. government,
the enforcement of judgment was difficult. Under the facts, it was believed that if diplomats were committing
acts of espionage, the ultimate action of the receiving country would only be expulsion of the diplomatic
mission.

Fatemi v. United States of America (U.S. Court of Appeals, District of Columbia, 1963): Fourteen Iranian
nationals appealed their cases from convictions for “unlawful entry”. The claim of immunity involving
inviolability of premises must be invoked by a member of the diplomatic mission.

Ali Kouni v. Nahiba Khari (wife of Kouni) Tunisia, Court of Appeals of Tunis, 1963. Mr. Kouni served as
counselor of the embassy of the Islamic Republic of Mauritania. He filed an action for divorce against his
wife, Nahiba Khari, a Tunisian national. The Tunis court granted the divorce but it also awarded
counterclaim of the wife by way of damages and alimony. On appeal, Kouni invoked his diplomatic immunity.
The Court rejected the appeal since the action was purely personal in nature.

Areco Leon (minors) Chile, Second Juvenile Court of Santiago, 1955: A warrant of arrest was issued
against Don Alberto Areco Pittaluga for failure to make alimony payments for a period of four months. He
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alleged that as First Secretary of the Uruguayan Embassy, he was invested with immunity. The court ruled
that he cannot invoke immunity for his personal acts.

U.S. v. City of Glen Cove, 322 Supp. 149 (1971). The U.S. District Court sustained the immunity from local
taxation of property occupied by the Permanent Representative of the Soviet Union to the United Nations.

Bergman v. De Sieyes, 170 F. 2d. 360 (1948). The U.S. District of Appeals dismissed the case where the
defendant French diplomat was served with process in a court action in New York while on his way to Bolivia
for his diplomatic post. The Court said that the diplomat must be granted immunity on the principle that a
diplomatic in transitu would be entitled to the same privilege as diplomatic in situ.

U.S. v. Rosal, 191 F. Supp. 663 (1961). The U.S. District Court denied the claim for immunity of Rosal, a
Guatemalan ambassador to Belgium and the Netherlands who caught with possession with narcotics while on
a personal visit to New York.

Pointers on Diplomatic Immunities and Privileges


(a) The person of a diplomatic agent shall be inviolable and he shall not be liable to any form of arrest or
detention. The receiving state shall treat him with due respect and shall take all appropriate steps to prevent
any attack on his person, freedom or dignity.
(b) A diplomatic agent shall enjoy immunity from the criminal, civil and administrative jurisdiction of the
receiving state, except in certain cases as, for example, when the civil action deals with property held by him
in a private or proprietary capacity.
(c) The diplomatic premises shall be inviolable, and the agents of the receiving state may not enter them
without the consent of the head of the mission. Such premises, their furnishings and other property thereon
and the means of transportation of the mission shall be immune from search, requisition, attachment or
execution.
(d) The archives and documents of the mission shall be inviolable at any time and wherever they may be.
(e) The receiving state shall permit and protect free communication on the part of the mission for all official
purposes. In communicating with the government and other missions, and consulates of the sending state
wherever situated, the mission may employ all appropriate means, including diplomatic couriers and
messages in code or cipher. The official correspondence of the mission shall be inviolable.
(f) Subject to its laws and regulations concerning national security, the receiving state shall insure to all
members of the mission freedom of movement and travel in its territory.
(g) A diplomatic agent is not obliged to give evidence as a witness.
h) A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional, or
municipal except in certain specified cases like the imposition of indirect taxes.
(i) The mission and its head shall have the right to use the flag and emblem of the sending state on the
premises of the mission, including the residences of the head of the mission and on his means of transport.

E. Termination of Diplomatic Relations


A diplomatic mission may come to an end by any of the usual methods of terminating official relations like:
Under Municipal Law: RADAR
(a) Resignation
(b) Accomplishment of the purpose
(c) Death
(d) Abolition of the office
(e) Removal
Under the International Law:
(a) War - the outbreak of war between the sending and receiving states terminates their diplomatic relations,
which is usually severed before the actual commencement of hostilities;
(b) Extinction - extinction of either the sending state or the receiving state will also automatically terminate
diplomatic relations between them; or
(c) Recall – may be demanded by the receiving state when the foreign diplomat becomes a persona non grata
to it for any reason. Where the demand is rejected by the sending state, the receiving state may resort to the
more drastic method of dismissal, by means of which the offending diplomat is summarily presented with his
passport and asked to leave the country.

Dominican Republic v. Pequero, 225 F. Supp. 342 (1963), 58 Am. J. International Law, 1012 (1964). The
U.S. District Court ruled that despite the change of government, the receiving state will continue to recognize
the powers of the vice consul until such time the exequatur is withdrawn.
Exequatur – Which is the permission given them by the receiving State to perform their functions therein.

VI. Law of Treaties and other Agreements

A. Kinds of Treaties:
1. Contract Treaties (Traite Contrat) example: Extradition Treaty
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2. Law-Making Treaties (Traite Loi)
Bayan Muna v. Zamora, 342 SCRA 449 (2000): The power to enter into a treaty is the sole prerogative of the
President subject to the requirements of the Constitution in line with his authority to determine the state’s
foreign policy. An Executive Agreement does not need the ratification of the Senate.

B. Principles governing Treaties:


The Principle of Jus Cogens
Read Article 53 of the Vienna Convention on the Law of Treaties. See pages 160-164, Dean Merlin M.
Magallona, Dictionary of Contemporary International Law (2011), U.P. College of Law
Article 53. TREATIES CONFLICTING WITH A PEREMPTORY NORM OF GENERAL
INTERNATIONAL LAW ("JUS COGENS") A treaty is void if, at the time of its conclusion, it conflicts with
a peremptory norm of general international law. For the purposes of the present Convention, a peremptory
norm of general international law is a norm accepted and recognized by the international community of States
as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent
norm of general international law having the same character.

Magallona, “The Concept of Jus Cogens in the Vienna Convention on the Law of
Treaties,” in International Issues in Perspective (1996)
Jus Cogens (JC) – are general norms of imperative character which the subjects of law cannot modify or
set aside in their contractual relations; constitute irreducible minimum principles in the legal system; set
above the wills of the parties to a contract
Jus Dispositivum – norms which can be derogated by private contracts
The concept of JC is identified with the notion of order public in municipal law which is the aggregate of
fundamental norms on public policy and good morals which unify particular rules and principles in the legal
order.
It is argued that JC could not yet mature in the field of Int’l Law because this concept presupposes the
existence of an effective de jure order which is envisaged in the model of the municipal legal order.
The emergence of JC is defined by the condition that in the international legal order, the subjects (States)
of the law are themselves the creators of the law on the basis of legal equality. The process of identifying
a general norm as JC is definitely a consensual mechanism. It is determined by the very real and concrete
interests of States and therefore springs from the necessity internal to the system of their inter-
relationships.
Example of JC norms: Nuremberg Principles, human rights, Sovereign equality of States, nonintervention,
right of self-determination.

Definition of JC under the Vienna Convention (VC)


Art 53: A treaty is void if at the time of its conclusion, it conflicts with a peremptory norm of general
international law. For the purposes of the present convention, a peremptory norm of (1) general int’l law
(2) is a norm accepted and recognized by the int’l community of States as a whole as a norm from which
no derogation is permitted and which can be modified only by a subsequent norm of general int’l law
having the same character.
Art 64: If a peremptory norm of general int’l law emerges, any existing w/c is in conflict with that norm
becomes void and terminates.
1 and 2 in Art 53 are elements of JC which projects the consensual nature of such norm.
However, the consensual nature should not lead to the formalism that character of JC finds explanation in
mere expression of the State’s consent. It is the particular nature of subject matter with which it deals
with that may give it JC character.
JC is either customary or conventional rule. It is also either universal or so recognized by a great majority
of States.
The words “as a whole” in Art 53 precludes the possibility that an objection on any 1 State may operate as
a veto to the characterization of norm as JC. Universal consent or unanimity is not intended as a basis for
the determination of JC norm.

Function of Conventional Rules on JC


The specific function of JC norms is to limit the freedom of the parties to a treaty in determining the
content of their agreement. Any treaty provision that contravenes a JC is either declared void under Art 53
or becomes void and terminates under Art 64. Under Art 45 of the Convention, a State may lose the right
to invoke a ground for invalidating, terminating, withdrawing or suspending the operation of a treaty
through confirmation or acquiescence.

However, Art 45 does not cover Art 53 and 64 w/c points to the conclusion that the invalidity of a treaty
arising from the violation of JC norms cannot be cured by confirmation or acquiescence of the parties. This

14
serves to reinforce the objective of character of JC norms as criterion of Illegality and to project their
importance over the narrow individual interests of the States.
Operation of Convention Rules on JC
A treaty in conflict with JC norm is invalid in Int’l Law but it can only be invalidated on that ground w/in the
framework of the VC.
Limitations: Invoked only by parties to the VC
Follow procedural requirement of VC
Procedure:
1. Written notification by contesting party to other party stating grounds for invalidation, termination, etc,
measures proposed to be taken and reasons therefor
2. Transmitted directly to the other party or depositary
3. 3 months after receipt of notice, if no raised objections, contesting party can effectuate the
invalidation/termination of treaty by a declaration to that effect in an instrument communicated to other
parties
4. If objections were raised, settle dispute through UN means (negotiation, mediation, other peaceful
means); resort to Int’l Court of Justice in case of failure to reach solution after 12 mos.
Non-retroactivity of Convention Rules on JC
Art 28: establishes non-retroactive operation of treaties in general and provides for flexibility for the parties
to stipulate expressly the retroactive effects of treaties.

Treaties concluded after the entry into the force of convention is which are in conflict with JC are void
under Art 53 or become void & terminate under Art 64.

Treaties concluded before the Convention’s entry into force are saved from the operation of Art 53 even if
they conflict with JC norm. But under Art 64, they are affected by the invalidating force of the ‘new” JC
norm when the norm is given binding force as such by the entry into the force of the Convention

The points of references for operation of Non-retroactivity rule:


Art 53: the date the Convention is enters into force.
Art 64: the time of emergence of the JC norm.
2 categories of JC:
1. JC existing on the date of the VC’s entry into force
2. general norms becoming JC sometime later after VC has come into force
Modification of JC
JC is not immutable. It is subject to change in keeping with the societal developments of global scale. But
only a JC norm can supercede or partially change an existing peremptory norm. The process of
modification follows the same mechanism as its formation which is on the same consensual basis as any
other norm of general int’l law.
Conclusion
One of the most significant features of progressive development in contemporary Int’l law is that the
competence of States in treaty-making has ceased to be unlimited. The introduction of JV in VC can serve
as transformative mechanism for discarding out-moded rules in the old Int’l Law and for replacing them
with progressive principles.
Notes:
PACTA SUNT SERVANDA: States or other international persons are bound by treaties which have been
regularly concluded and have entered into force and they must be carried out in good faith. The basis of
the obligatory character of conventional rules or what is sometimes called sanctity of treaties is not clear.

What is jus cogens?


Jus cogens is that body of peremptory principles or norms from which no derogation is permitted; those
norms recognized by the international community as a whole as being fundamental to the maintenance of an
international legal order. They also comprise elementary rules that concern the safeguarding of peace and
notably those that prohibit recourse to force or threat of force.
Jus cogens may, therefore, operate to invalidate a treaty or agreement between states to the
extent of the inconsistency with any such principle. As a peremptory norm, jus cogens is a fundamental
principle of international law that is accepted by the international community of states as a norm from which
no derogation is permitted. Under Article 53 of the Vienna Convention on the Law of Treaties, any treaty that
conflicts with a peremptory norm is void. Generally included are prohibitions on waging aggressive
war, crimes against humanity, war crimes, maritime piracy, genocide, apartheid, slavery, torture. As an
example, international tribunals have held that it is impermissible for a state to acquire territory through war.
Two elements of jus cogens norms: (1) it is a norm of general international law; and (2) it is accepted and
recognized by the international community of states as a whole as a norm from which no derogation is
permitted.

15
It exists when a clear and continuous habit of doing certain things develops under the CONVICTION that it is
obligatory and right. This conviction is called “Opinio Juris”

Cases:
Sate Immunity: U.S. v. Ruiz, 136 SCRA 487: The Supreme Court held that the traditional rule of immunity
excepts a State from being sued in the courts of another State without its consent or waiver. This rule is a
necessary consequence of the principles of independence and equality of States. The activities of states have
multiplied, it has been necessary to distinguish them –– between sovereign and governmental acts (jure
imperii) and private, commercial and proprietary acts (jure gestionis). The result is that State immunity now
extends only to acts jure imperii. The restrictive application of State immunity is now the rule in the United
States, the United Kingdom and other states in Western Europe. The restrictive application of State immunity
is proper only when the proceedings arise out of commercial transactions of the foreign sovereign, its
commercial activities or economic affairs. Stated differently, a State may be said to have descended to the
level of an individual and can thus be deemed to have tacitly given its consent to be sued only when it enters
into business contracts. It does not apply where the contract relates to the exercise of its sovereign functions.
In this case the projects are an integral part of the naval base which is devoted to the defense of both the
United States and the Philippines, indisputably a function of the government of the highest order; they are
not utilized for nor dedicated to commercial or business purposes.

Bishop Arigo et al v. SCOTT H. SWIFT in his capacity as Commander of the US. 7th Fleet, MARK A.
RICE in his capacity as Commanding Officer of the USS Guardian, et al (G.R. No. 206510 September
16, 2014): The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of
customary international law then closely identified with the personal immunity of a foreign sovereign from
suit and, with the emergence of democratic states, made to attach not just to the person of the head of state, or
his representative, but also distinctly to the state itself in its sovereign capacity. If the acts giving rise to a suit
arc those of a foreign government done by its foreign agent, although not necessarily a diplomatic personage,
but acting in his official capacity, the complaint could be barred by the immunity of the foreign sovereign
from suit without its consent.

Right to Self-Determination (External Self-Determination and Internal Self-Determination): Province of


Cotabato v. GRP Peace Panel on Ancestral Domain G.R. No. 183591, October 14, 2008 citing Re Secession
of Quebec): Citing the case of Secession of Quebec, the court said the Canadian Court said that there are on
exceptional cases in which the right to external self-determination can arise, namely, where a people is under
colonial rule, is subject to foreign domination or exploitation outside a colonial context, and – less definitely
but asserted by a number of commentators – is blocked from the meaningful exercise of its right to internal
self-determination. The Court ultimately held that the population of Quebec had no right to secession, as the
same is not under colonial rule or foreign domination, nor is it being deprived of the freedom to make
political choices and pursue economic, social and cultural development, citing that Quebec is equitably
represented in legislative, executive and judicial institutions within Canada, even occupying prominent
positions therein.

C. Formation of Treaties
The treaty-making process involves four major stages, namely: (NARE)
1. Negotiations by representatives of the states, which includes drafting of text (representatives must be given
full powers by the state);
2. Affixing of signatures of negotiators signifying provisional acceptance (adoption of the text of the treaty
after negotiations);
3. Ratification of the treaty, which is the final acceptance (state’s internal/domestic law’s requirement on
ratification. In the Philippines, the Senate must ratify a treaty); and
4. Entry into force of the treaty (the date of effectivity of the treaty as between the parties; the manner is
determined by the provisions of the treaty).

Bayan v. Executive Secretary (EDCA), January 13, 2015: “The EDCA provides for arrangements to
implement existing treaties allowing entry of foreign military troops or facilities under the VFA and the
MDT, and thus may be in the form of an executive agreement solely within the powers of the President and
not requiring Senate concurrence...”

Actions which may affect a treaty:


1. Rejection: If a treaty requires ratification by a legislative body and if that body refuses to give its consent,
the treaty although signed may remain inoperative.
2. Reservations: A party to a treaty may make certain provisions on matters included in the treaty unless the
treaty itself prohibits them.
3. Accession and Adherence: A third party which has not signed a treaty or ratified the same may by a formal
instrument adhere to the provisions of a concluded treaty. (Art.17, Vienna Convention)

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D. Termination, Suspension of and Withdrawal from Treaties
There are six basic ways by which a treaty may be terminated
1. in accordance with the terms of the treaty itself;
2. by explicit or tacit agreement of the parties;
3. through violation of the provisions of the agreement by the party, with the second party asserting that it
considers the treaty abrogated by the violation;
4. by one party on the ground that fundamental conditions on which the treaty was based have changed;
5. through the new emergence of a new pre-emptory norm of general international law conflicting with the
treaty; and
6. through the outbreak of hostilities between the parties.

E. International Agreements
Some international agreements have been designated by various nomenclatures, such as:
1. Act, a final act or protocol de cloture: summarizes proceedings in a diplomatic conference
2. Agreement, arrangement or accord, an instrument that covers a limited subject of lesser importance than
a formal treaty or convention
3. Compromise, an agreement that specifies a matter in dispute, the time and manner of appointing
arbitrators, the place where the tribunal shall meet, and such other procedures as may be agreed upon.
4. Compromis d’ arbitrage, an agreement to submit a dispute to an arbitration or judicial settlement
5. Concordant, an agreement by the Pope, with heads of State on ecclesiastical affairs
6. Convention, a multilateral treaty or agreement, usually restricted to some technical matter.
International Agreements/ Conventions
U.N. Convention on the Rights of the Child
U.N. Convention on the Protection of Migrant Workers and the Families
U.N. Convention against Transnational Organized Crimes
U.N. High Commission on Refugees
U.N. Convention against Torture
7. Covenant, an international compact which has binding effect, usually on many states
8. Declaration, an instrument which contains three parts: title and stipulations; unilateral statement creating
rights and duties for other states; and a description of an action taken when a State communicates with other
States.
U.N. Declaration of Human Rights

Agustin v Edu (G.R. No. L-49112, Feb. 2, 1979). The Philippines is bound by the provisions of the 1968
Vienna Convention on Road Signs and Signals to adopt a local legislation to fulfil its obligation.

Santos v. Northwest Airlines (G.R. No. 101538, 1992). The Philippines is bound at the Warsaw Convention.
The injured party must pursue his claim in the United States of America under Art. 28(1) of the Warsaw
Convention.

VII. Jurisdictional Cooperation and Assistance among States

Jurisdictional cooperation and assistance among many States may be rendered in various ways, such as:
Extradition, Letters Rogatory, Prosecution of International Crimes, Assistance in Recovery of Claims Abroad;
and Cooperation in the Protection of Marine Resources.

A. Extradition
Extradition is generally understood as the delivery of the accused or a convicted individual to the State in
whose territory he is alleged to have committed a crime, by the State on the whose territory the alleged
criminal happens to be at the time. (Oppenheim-Lauterpacht, p.696; Terlinder v. Ames, 84 U.S. 272 (1902).

Types of Extradition Treaties


1. One which contains a specific list of offenses which a fugitive should have committed in order to be
extradited.
2. One which contains no list of crimes but provides that the offenses in question should be punishable in both
states.

General Principles of Extradition


1. There is no legal obligation to surrender the fugitive unless there is a treaty;
2. Religious and political offenses are generally not extraditable;
3. A person extradited can be prosecuted by the requesting State only for the crime for which he was
extradited; and
4. Unless provided for in a treaty, the crime for which the person is extradited must have been committed in
the territory of the requesting State.

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Factor v. Laubenheimer, U.S. Marshall at al., 290 U.S. 276 (1933). The U.S. Supreme Court said that “The
principles of international law recognize no right of extradition apart from a treaty.”

Government of Hong Kong Special Administrative Region v. Judge Olalia, Jr. and Muñoz,
G.R. No. 153675, April 19, 2007. The provisions of an extradition treaty may only be invoked by an existing
State which has the capacity to enter into a treaty.

Sec of Justice v. Hon Ralph Lantion. The rule on pacta sunt servanda must prevail but a Filipino citizen
must also be accorded the protection of domestic law.

Doctrines which Govern Extradition


1. Political Offense Doctrine
General Rule: Political offenses are exempt from extradition.
Rational for the Doctrine:
1. The political offender deserves humanitarian treatment.
2. The political offender has the right to revolt against tyranny, and if this right is to be meaningful, he is
entitled to political asylum.
3. The principle of neutrality and non-interference in the internal affairs of another state dictates that where
there is a “contest” between the government and a segment of the population, the political offender should not
be extradited.
Kinds of political offenses:
1. The pure political offense is an act exclusively against the political order of the state, including its
independence, the integrity of its territory, its relation with other states, the form of its government, the
organization of public powers, their mutual relations, in short, the political rights of its citizens. (Garraud,
Precis de Droit Crimnel 88 (1912), cited in Ferrari, Political Crime and Criminal evidence, 3 Miin, L. Rev. ,
365 (1919) ).
2. The relative political offense is an act in which a common crime is either implicit in or connected with the
political act.
In Re: Castioni, Q.B. 149 (1891). This case involved a local uprising in Switzerland because the government
refused to take a popular vote on a request for a revision of the Constitution. An armed group entered the
municipal government and appointed a provisional government. Castioni, a member of the armed group, shot
a municipal officer and was charged with murder. He fled to England and Switzerland requested his
extradition. The English Court ruled that the shooting was incidental to and formed part of political
disturbances and Castioni cannot be extradited.

2. Doctrine of Reciprocity
In many states in continental Europe and South America, States consider the factor that if a crime committed
by one of their nationals anywhere, the same constitutes a violation of their own laws, just as much as in the
place where the crime was committed. This saw the emergence of the doctrine of reciprocity in extradition of
fugitives. This practice allows extradition through consensual acts of the requesting state and the state where
the fugitive is found.

Couas v. The Supreme Court of San Joaquin County (31 Cal. 2d. 682 (1948), Supreme Court of
California).Petitioner was a native of Greece who emigrated to U.S.A. in 1907 and became a naturalized
citizen. The Greek government never consented to his foreign naturalization. He was being prosecuted for the
charges of murder and for assault upon a person and prayed that the American court should be enjoined from
trying him because she already served his sentence for the same offenses in Greece. The Court held that the
Extradition Treaty between U.S.A. and Greece has become part of the law of the law and double jeopardy had
already set in.

Double Criminality: The principle of double criminality is available only when the act is an offense in both
jurisdictions. It need not have the same name, but it must be criminal in both systems.
Extradition of War Criminals: As violators of crimes against international law, was criminals are subject to
extradition.
Attentat Clause: Extradition agreement/law may stipulate that the murder of a head of a foreign government
or a member of his family should not be considered a political offense.

Procedure in Extradition: A request is made through diplomatic channels. In the Philippines, it coursed
through the Department of Foreign Affairs (“DFA”). DFA forwards the request to the Department of Justice
which files the necessary petition with the Regional Trial Court. The judicial process can go all the way up to
the Supreme Court. The judiciary determines whether or not the extradition is authorized. The extradition is
effected by executive action.
The requesting State bears all the costs and expenses incurred in the extradition proceedings.
Other related rights:
1. Right to Asylum

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The right of asylum is a privilege granted by a State to allow an alien escaping from the prosecution of his
country for political reasons to remain and grant him asylum.
It is the responsibility of the State to prevent individuals from endangering the safety of another State by
committing hostile acts or even committing ordinary crimes. (Oppenheim-Lauterpacht, p.678)
The principle of Asylum implies at least four elements:
(a) A State does not only have the right, but also the obligation, to grant temporary asylum;
(b) An asylee should be expelled or returned to a territory, with respect to which he has well-founded fear of
persecution;
(c) An asylee is immune from persecution and penalty on account of his illegal entry or presence; and
(d) An asylee is entitled to temporary residence within the state of asylum until his reintegration, resettlement
or voluntary repatriation.
The right of non-refoulement: Article 33 of the Refugee Convention provides that no contracting State shall
expel or return a refugee, in any manner whatsoever, to the frontiers of territories where his life or freedom
would be threatened.
Asylum of Vessels
International Law does not recognize the grant of asylum in a foreign merchant vessel while in the territory of
a coastal State, either for fugitives from criminal justice or political refugees. The local authorities have the
right to board such vessels and to remove refugees or fugitives on board.
With respect to foreign public vessels, customary law allows only the grant of asylum to political offenders.
Diplomatic Asylum
This practice is allowed provided there is no international that is violated.
2. Right of Refugees
Essential Elements of the term “Refugee”:
(a) The person is outside the country of nationality, or, in the case of stateless persons, outside his habitual
residence;
(b) The person lacks national protection; and
(c) The person fears persecution.
The United Nations High Commissioner for Refugees is charged with the primary responsibility of addressing
the needs of refugees. The work of the UNHCR is entirely non-political character, humanitarian and social.
Rights of Refugees (based on the Statute of the Office of the UNCHR)
(a) National treatment or treatment accorded to nationals of the Contracting State concerned;
(b) Most-favored nation treatment, or the most favourable treatment accorded to nationals of a foreign
country; and
(c) Treatment as favourable as possible, and in any event, not less favourable than that accorded to aliens
generally in the same circumstances.

B. Letters Rogatory
Letters Rogatory is a formal communication from a court in which an action is pending, to a foreign court,
requesting that the testimony of a witness residing in such foreign jurisdiction be taken under the direction of
the court, addressed and transmitted to the Court making the request. (See Rule 24, Section 12 of the Rules of
Court).

C. Prosecution of International Crimes


Crimes against international law includes among others, piracy, slave trade, air hijacking and genocide. These
crimes may tried by any State.
International terrorism has become a global concern and many States have adopted legislative measures to
ensure the protection of its constituents against the threat of terrorism. Terrorist acts may be categorized as
follows:
1. Any act causing death or grievous bodily harm or loss of liberty to a Head of State, persons exercising
prerogatives of the Head of State, their hereditary or designated successors, the spouse of such persons, or
such persons charged with public functions or holding public positions when the act is directed against them
in their public capacity;
2. Acts calculated to destroy or damage public property or property devoted to a public purpose;
3. Any act likely to imperil human lives through the creation of a public danger, in particular the seizure of
aircraft, taking of hostages and any form of violence against persons who enjoy international protection or
diplomatic immunity; and
4. The manufacture, obtaining, possession or supplying of arms, ammunition, explosives or harmful
substances with a view to the commission of a terrorist act (Peter J. van Krieken, ed. , Terrorism and the
International Law Order, 2002, pp. 17-18).

D. Recovery of Claims Abroad


The adoption of the United Nations in 1956 of the Convention on the Recovery Abroad of Maintenance
Obligations has the paved the way to ease the difficulties met by individuals in collecting claims from another
State.
Under the Convention, each State party undertake to establish agencies to transmit and receive claims.

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E. Cooperation in the Protection of Marine Resources
The adoption of the Convention on the Law of the Sea has imposed upon the member States the obligation to
protect and preserve the marine environment while allowing coastal States to exploit their natural resources.
The cooperation required of each State involves taking measures to prevent, reduce and control pollution of
the marine environment.

VIII. War and Peace

A. War
Oppenheim-Lauterpacht defines war as the contention between two or more States, through their armed
forces, for the purpose of overpowering each other and imposing such conditions of peace as the victor
pleases.

B. Use of Force Short of War


Self-Help Measures Short of War
1. Breaking of Diplomatic Relations
2. Retorsion: retaliation for discourteous, unkind, or unfair and inequitable acts of the same or similar nature.
3. Reprisals: injurious or otherwise internationally illegal act committed by one State against another for the
purpose of compelling the latter to consent to a satisfactory settlement of a dispute created by its own
international delinquency. (Oppenheim-Lauterpacht, p. 136)
See The Naulilaa Incident Arbitration, supra
4. Embargo: is Spanish in origin which literally means detention of ships in port.
(a) Each conflicting State may lay an embargo upon merchant vessels of the other State in its ports, by way of
anticipation and with the view of facilitating capture and condemnation in the event of war.
(b) Arret de prince is the detention of foreign ships to prevent the spread of news of political importance.
(c) Jus angariae is an embargo where the belligerent State seizes and makes use of neutral property in case of
necessity, with the obligation to pay the neutral State.
5. Boycott: involves the suspension of business and trade relations of the nationals of the injured State with
the citizens of the offending State.
6. Blockade
(a) Pacific Blockade
(b) Hostile Blockade (ex. Battle of Navarino on blockade instituted by France, Great Britain and Russia to
induce Turkey to grant independence to Greece).
7. Intervention: a State interferes with the affairs of another State in such a manner as to result in advantage
to the intervenor. In other cases, a third State may intervene in a conflict between two States.
8. Self-Preservation or Self-Help in Time of Necessity: The Kellogg-Briand Pact outlawed war. Before the
same took effect, the use of force by States was justified by the need to protect its vital interests.
Great Britain v. United States (1883). Insurgents in Canada, who were fighting the government then under
the sovereignty of Great Britain, chartered the vessel Caroline, then in the port in the United States of
America, for the purpose of carrying supplies to the insurgents. Informed of the plan, Great Britain sent its
own forces to destroy Caroline. The act was considered self-defense.
9. Use of Force other than Self –Defense: A warship may be allowed to use force against vessels which are
suspected of, or an engaged in, piracy or slave trade, when they offer resistance.

C. Aggression
Article 1 of the U.N. General Assembly Resolution 3341 defines aggression as “the use of armed force by a
State against the sovereignty, territorial integrity or political independence of another State, or in any other
manner inconsistent with the Charter of the United Nations.”

D. Commencement of War
If there is a declaration of war or the existence of a state of war, the status of war starts at the moment
specified in the declaration. If there is no formal declaration, war starts at the commencement of the first act
of force.

E. Legal Effects of War


The existence of war or hostilities ends every relationship between the belligerent States and persons subject
to their jurisdiction.
1. Termination of Diplomatic and Consular Relations
2. Effects on Treaties
Treaties of amity, friendship or alliance and all treaties which are political in nature are deemed abrogated.
Treaties are non-political in nature are suspended for the suspension of the conflict, while treaties affecting
private rights and those not affected by the hostilities remain in force. (Argento v. North, 131 F. Supp. 538
(1955); Argento v. Horn, 241 F.2d.258 (1957)

Clark v. Allen, 331 U.S. 503 (1974). The U.S. Supreme Court allowed the four German relatives of a resident
of California to enjoy the properties bequeathed in their favour despite the outbreak of war between Germany
20
and the American government. The Court held that the outbreak of war does not necessarily suspend or
abrogate treaty provisions between the two States.

Techt v. Hughes, United Nations, Court of Appeals of New York, 229 N.Y. 222128 N.E. 185 (1920). The
Court was asked to resolve the right of succession of descendant Sarah Techt who married a citizen of
Austria-Hungary. Her sister Elizabeth Hughes opposed the ruling of the trial court granting Techt a share in
property of their father, James Hannigan. Her opposition is hinged on that fact that 20 days after the death of
their father, U.S. and Austria-Hungary were at war. Speaking through Justice Cardozo, the Court held that in
times of war, some treaties are dealt with specially and apart.

3. Effect on Nationals in Belligerent States


Customary international law allows the nationals of belligerent States to leave enemy territories unmolested.
Haw Pia v. China Banking Corporation, 80 Phil., 804 (1948): The Court allowed Haw Pia’s prayer to cancel
the mortgage between him and China Banking Corporation. The Court said that when Haw Pia paid the full
proceeds of the loan to the Bank of Taiwan during the Japanese period, it effectively extinguished its
obligation to China Banking Corporation.

Filipina Compania de Seguros v. Christein, Huenfeld &Co., 89 Phil. 54 (1951). Respondent is a company
registered under Philippine laws but a majority of its stockholders are Germans. During the Japanese
occupation, the building and insured merchandise of the company was burned. Upon demand, petitioner
refused to pay the respondent. The trial court, however, ordered petitioner to pay the claim of respondent. The
Supreme Court reversed the decision of the lower court and ordered the respondent to reimburse the
petitioner. The Court held that being a company substantially owned by German nationals with which the
U.S. government was at war, the payment was not proper.

Ex Parte Kumezo Kawato, 317 U.S. 69 (1942). The U.S. Supreme Court sustained the right of Japanese
residing in the United States since 1905 to recover damages due him in a suit which he commenced on 15
April 1941. The Court clarified the prohibition under the U.S. Trading with the
Enemy Act referred only to an “enemy or ally of an enemy” and “alien enemy” applied only to those residing
within the territory owned or occupied by an enemy nation, wherever residing, as the President by
Proclamation may include within the definition.

4. Regulation on the Use of Force


Principles:
(a) The belligerent is justified in applying any amount and any kind of force which is necessary for the
realization of the purpose of war, which is to overpower the enemy.
(b) All such kinds and degrees of violence as are not necessary for the overpowering of the opponent should
be permitted to a belligerent.
(c) There must be observed some fairness in offense, defense, as well as mutual respect.

5. Humanitarian Law in Armed Conflicts


The United Nations General Assembly adopted on 16 December 1968, the following principles:
(a) that the right of parties to a conflict to adopt a means of injuring the enemy is not unlimited; (b) that it is
prohibited to launch attacks against the civilian population as such; and (c) that the distinction must be made
at all times between persons taking part in the hostilities and members of the civilian population, to spare the
latter as much as possible.
Persons hors de combat and those who do not take part directly in hostilities shall be protected and treated
humanely without any distinction. Their right to life and physical and moral integrity shall be respected.
The additional protocol I to the Geneva conventions of 1949 in Article 43, paragraph 2, defines the term
“combatants” as “ members of the armed forces of a party to the conflict” excluding medical personnel and
chaplains.

6. Effects of the Laws of War on International Armed Forces (Two views)


The rule should be that the laws of war must apply equally to the aggressor and to international armed forces.
There is another view that collective security forces should not be bound by the law of war but should be free
to select such rules as are desirable at the time and to discard all the rest in the fight against the aggressor.

7. Regulation of Non-International War


Article 3, a common article of the four conventions of 1949, regulated the non-international wars. Protocol II
to the convention amplified this provision.
(1) Article of the protocol provides guarantees for all persons not taking part in hostilities or wars which are
not international in character.
(2) It prohibits the taking of hostages and the commission of acts of terrorism.
21
(3) The protocol intends to protect the civilian population against the effects of war, such as attacks on dams,
dikes, and electric plants even if they are genuine military objectives, if severe loss or damage is suffered by
the civilian population.
(4) the provision also intends to protect the wounded, the sick and medical personnel and vehicles with the
emblem of the Red Cross and similar organizations.

8. Status of Belligerent Communities


Traditional international law recognizes that only fully sovereign states have the legal status of belligerents in
an international war.

9. Irregular Armed Forces


The traditional concept of war regulated only the participation of regular armed forces such as the army, navy
and air force of the belligerents. The determination of who are deemed included in the regular armed forces is
a matter left to the decision of domestic law. The non-combatants are entitled to treatment of prisoners of war
provided they can identify themselves properly.
Other types of irregular forces in armed conflicts have complicated problems on the regulation of their acts
during combat. Irregular forces such as guerrillas, partisans, underground resistance groups, and freedom
fighters did not have any legal status under international law. In the past, they could be executed as war
criminals without trial.

F. The Laws of War

1. The Laws of War on Land


The rules of land warfare during the First World War were based on the conventions adopted in the Hague in
1989 and 1907.These rules were later supplemented by the four Geneva Conventions of 1949 after World
War II. These four Conventions were updated and expanded by Protocols I and II.
The rules distinguished between the armed forces and the civilian population of the belligerent.
Resort to treacherous means is also forbidden.
Denial of distressed troops is generally prohibited, unless the enemy troops resume hostilities after hoisting a
white flag to show signs of surrender.
Ruses of War: The rules of war do not prohibit ruses of war. Such acts are intended to mislead an adversary
or to induce the adversary to act recklessly but which infringe no rule of international law applicable to armed
conflict.
Uses of Prohibited Weapons: The use in war of asphyxiating , poisonous or other gases, and all analogous
liquids, materials or devices, and of bacteriological or biological methods of warfare, have been prohibited
since the 1925 Geneva Protocol.
2. Laws of Warfare at Sea
Sea warfare aims to serve the following objectives: to defeat the navy of the enemy, destruction of enemy
coast fortifications, cutting off intercourse with the enemy coast, prevention of carriage of contraband,
annihilation of the enemy merchant fleet, and the defense of the home coasts as well as its own merchant
fleets.( U.S. Naval War Code; II Oppenheim- Launterpacht, p. 457.)

G. Pacific Settlement of International Disputes


1. Negotiation: This is the direct discussion of a dispute by parties through diplomatic representatives or
higher officials appointed for that purpose.
2. Enquiry: The Hague Peace Conference of 1899 established commissions of inquiry. The core of the process
is to elicit the admission of facts which helps in the clarification of issues.
3. Mediation: The process of settlement is undertaken by a third state or group of states, an individual, an
agency or an international organization.
4. Tender of Good Offices: This is an offer of a third party to settle an international dispute exercised only
with the consent of both parties.
5. Conciliation: This is the process of settling a dispute by referring it to a commission of persons whose task
is to elucidate the facts, after hearing the parties and endeavouring to bring them to an agreement, and to
make a report containing proposals for a settlement.
6. Arbitration: This is the resolution of a difference between states through a legal decision of one or more
umpires or of a tribunal chosen by the parties.

Ex aequo et bono (Latin for "according to the right and good" or "from equity and conscience"). In the
context of arbitration, it refers to the power of the arbitrators to dispense with consideration of the law
and consider solely what they consider to be fair and equitable in the case at hand.

Article 38(2) of the Statute of the International Court of Justice (ICJ) provides that the court may
decide cases ex aequo et bono, but only where the parties agree thereto. Article 33 of the United Nations
Commission on International Trade Law's Arbitration Rules (1976) provides that the arbitrators shall

22
consider only the applicable law, unless the arbitral agreement allows the arbitrators to consider ex
aequo et bono, or amiable compositeur.

H. Judicial Settlement of International Disputes


States may either seek an opinion or submit a conflict for resolution before the International Court of Justice.
The jurisdiction of the ICJ in contentious issues involves three issues: (1) jurisdiction over parties; (2)
jurisdiction over the subject matter; and (3) jurisdiction regarding the time limits.

In an obiter dictum in its 1970 judgment in the Barcelona Traction case, the International Court of
Justice identified a category of international obligations called erga omnes, namely obligations owed by
states to the international community as a whole, intended to protect and promote the basic values and
common interests of all.

Examples of erga omnes norms include piracy, genocide, slavery, torture, and racial discrimination.
The concept was recognized in the International Court of Justice's decision in the Barcelona Traction
case [(Belgium v Spain) (Second Phase) ICJ Rep 1970 3 at paragraph 33]:

"… an essential distinction should be drawn between the obligations of a State towards the
international community as a whole, and those arising vis-à-vis another State in the field of diplomatic
protection. By their very nature, the former are the concern of all States. In view of the importance of
the rights involved, all States can be held to have a legal interest in their protection; they are
obligations erga omnes. [at 34] Such obligations derive, for example, in contemporary international
law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules
concerning the basic rights of the human person, including protection from slavery and racial
discrimination. Some of the corresponding rights of protection have entered into the body of general
international law . . . others are conferred by international instruments of a universal or quasi-
universal character."

I. The International Criminal Court (“ICC”)

This is an intergovernmental organization and international tribunal, has the jurisdiction to prosecute
individuals for the international crimes of genocide, crimes against humanity, and war crimes. It sits in The
Hague in the Netherlands. The ICC is intended to complement existing national judicial systems and it may
therefore only exercise its jurisdiction when certain conditions are met, such as when national courts are
unwilling or unable to prosecute criminal also or when the United Nations Security Council or individual
states refer investigations to the Court. The ICC began functioning on 1 July 2002, the date that the Rome
Statute entered into force. The Philippines is a signatory to the Rome Statute.
The ICC has four principal organs: the Presidency, the Judicial Divisions, the Office of the Prosecutor, and
the Registry. The President is the most senior judge chosen by his or her peers in the Judicial Division, which
hears cases before the Court. The Office of the Prosecutor is headed by the Prosecutor who investigates
crimes and initiates proceedings before the Judicial Division. The Registry is headed by the Registrar and is
charged with managing all the administrative functions of the ICC, including the headquarters, detention
union, and public defense office.

IX. Neutrality

A. Neutral State: A State refraining from participating in war possesses the status of neutrality.
Switzerland enjoys perpetual neutrality on account of the “Eight-Power Declaration” of 20 March 1815. This
status was confirmed by Austria, France, Great Britain, Prussia and Russia on 20 November 2015.
B. Laws Governing Neutrality
1. Hague Convention V of 1907 deals with rights and duties in land warfare.
2. Declaration of Paris of 1856 and the Convention XIII of 1907 Hague Conference deal with the rights and
duties during warfare at sea.
3. 1923 Hague Air Warfare Rules govern the rights and duties in employing aircrafts in a state of war.
C. General Duties of a Neutral State
1. The duty to act impartially toward the belligerents;
2. The duty to abstain from furnishing belligerents any material assistance, whether goods or services, for the
prosecution of war;
3. The duty to prevent the commission of hostile acts within neutral jurisdiction as a base for belligerent
operations; and
4. The duty to acquiesce on certain repressive measures taken by belligerents against private neutral
commerce on the high seas. (Kelsen, p. 156 as cited in Jorge Coquia and Miriam Defensor Santiago,
Public International Law p. 851, 1984)

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X. International Human Rights

A. Classification of Human Rights


1. First generation of human rights, consisting of civil and political rights under the International Covenant on
Civil and Political Rights;
2. Second generation, consisting of economic, social and cultural rights under the International Covenant on
Economic, Social and Cultural Rights; and
3. Third generation rights, which refer to right to development, right to peace and right to environment.

B. International Bill of Human Rights


The Bill consists of: the Universal Declaration of Human Rights, the International Covenant on Civil and
Political Rights and the International Covenant on Economic, Social and Cultural Rights.

C. Genocide as a Crime
Under the Convention on the Prevention and Punishment of the Crime of Genocide, genocide means “any of
the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial, or
religious group, such as:
1. Killing of the members of the group;
2. Causing serious bodily or mental harm to members of the group;
3. Deliberately inflicting on the group, conditions of life calculated to bring about its physical destruction in
whole or in part;
4. Imposing measures intended to prevent births within the group; and
5. Forcibly transferring children of the group to another group. (Article II)

D. Torture
Torture is defined as “any act by which severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person as obtaining from him or a third person information or a confession, punishing him for
an act he or a third person has committed, or is suspected of having committed, or intimidating or coercing
him or a discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with
the consent or acquiescence of a public official or other person acting in an official capacity.” (Article 1(1),
Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment)

E. Rights of the Child


The convention on the Rights of the Child entered into force on 2 September 1990. It provides for the
protection of the following rights:
1. The inherent right to life;
2. To have a name from birth; and
3. To acquire a nationality, adequate standard of living, social security and health care;
4. Political, civil, economic, social and cultural rights, including freedom of thought, conscience, religion,
expression, discrimination, education, access to information, minority rights, protection from exploitation,
civil and criminal procedural rights;
5. Protection during armed conflict and refugee right; and
6. Right to family environment and the right to know the parents and be cared for by them.

F. Rights of Migrant Workers


On 18 December 1990, the United Nations General Assembly adopted the International Convention on the
Protection of the Rights of All Migrant Workers and Members of their Families.
Article 2, paragraph 1 of the Convention defines a migrant worker as “a person who is to be engaged, is
engaged or has been engaged in a remunerated activity in a State of which he or she is not a national.”

XI. Law of the Sea

A. Definition
The Law of the Sea is a body of treaty rules and customary norms governing the uses of the sea, the
exploitation of its resources, and the exercise of its jurisdiction over maritime regimes. It is the branch of
public international law which regulates the relations of states with respect to the uses of the oceans.

B. Classification of waters under the UNCLOS


1. Internal or national waters
2. Territorial waters
3. Contiguous Zone
4. Archipelagic waters
5. 200 mile exclusive economic zone
6. High Seas

C. Relevant provisions of the U.N. Convention on the Law of the Seas, April 30, 1982:
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Internal waters of the Philippines consist of waters around, between and connecting the islands of the
Philippine Archipelago, regardless of their breadth and dimensions, including the waters in bays, rivers and
lakes. No right of innocence passage for foreign vessels exists in the case of internal waters. (Harris, Cases
and Materials on International Law, 5th ed., 1998, p. 407).
Under UNCLOS, however, warships enjoy a right of innocent passage when a portion of the territorial
water of the coastal state is used for international navigation.
Territorial Water: Article 42(2) of UNCLOS provides that there shall be no suspension of innocent passage
through straits used for international navigation. The right of the coastal state to suspend the same requires
that the coastal nation must publish the same and without any publication, it cannot insist to suspend the use
of such body of water. A claim that suspension of innocent passage is necessary for national security may be
cited by the coastal state. Upon the other hand, if a war ship delayed its right of innocence, the same may
justified under Article 18(2) of UNCLOS if the delay was caused by rendering assistance to persons or ship in
distress. (Arigo vs. Scott)
Contiguous zone is the zone contiguous to the territorial sea and extends up to twelve nautical miles from the
territorial sea and over which the coastal state may exercise control necessary to prevent infringement of its
customs, fiscal, immigration or sanitary laws and regulations within the territory or territorial sea. (Article
33 of UNCLOS)
Exclusive Economic Zone is the zone extending up to 200 nautical miles from the baselines of a state over
which the coastal state has sovereign rights for the purpose of exploring and exploiting, conserving and
managing its natural resources, whether living or non-living, of the waters super adjacent to the seabed
and of the seabed and subsoil and with regard to other activities for the economic exploitation and exploration
of the zone. (Articles 56 and 57, UNCLOS)
Flag state means a ship has the nationality of the flag of the state it flies, but there must be a genuine link
between the state and the ship. (Article 91, UNCLOS)
Flag of convenience refers to a state with which a vessel is registered for various reasons such as low or non-
existent taxation or low-operating costs although the ship has no genuine link with that state. (Harris, ibid.
p.425)

XII. Law of the Air and Outer Space

A. Coverage of the Law of the Air or International Air Law


It consists of norms in general or customary law and in multilateral conventions as well as bilateral treaties. It
includes rules on liabilities and technical matters. The 1944 Chicago Convention on International Civil
Aviation has established the legal framework for such regulatory system.

B. Principles under the Chicago Convention


1. Article 1: Every State has complete and exclusive sovereignty over the airspace above its territory.
2. Article 17: Aircrafts have the nationality of the state in which they are registered.
3. Article 6: No scheduled international air service may be operated over or into the territory of a contracting
State, except with the special permission or other authorization of the State.

C. Two freedoms of the air under the International Air Services Transit Agreement
1. The privilege to fly across its territory without landing
2. The privilege to land for non-traffic purposes, such as refueling and maintenance.

D. Outer Space
Principles that govern the activities of States in outer space
1. Exploration and use of “outer space shall be for the benefit and in the interest of all countries… and shall
be the province of all mankind.”
2. Outer space “shall be free for exploration and use by all states without discrimination of any kind on the
basis of equality.”
3. Outer space is not subject to “national appropriation by claim of sovereignty, by means of use, or
occupation, or any other means.”
4. The exploration and use of outer space “shall be carried out in accordance with international law including
the charter of the United Nations.”
5. There shall be no installation of nuclear weapons or any other weapons of mass destruction in outer space.
6. A State party that launches an object to outer space “is internationally liable for damage to another state
party… or its natural or juridical persons by such objects or its components part, on the Earth, in the air or in
outer space…”
7. Ownership of space objects is not affected by their presence in outer space or on celestial bodies or by
return on Earth.
8. The exploration of outer space shall be conducted so as to avoid its harmful contamination as well as
changes in the environment of the earth resulting from the introduction of extraterritorial matter.

XIII. Public International Law in the Context of the Philippine Constitution


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A. National Territory/Sovereignty/ State Immunity
Territory– The Archipelago Concept, Article I
Territory – The Philippine Archipelago
Treaty limits: Treaty of Paris, Art. III
Treaty between Spain and U.S. concluded at Washington on November 7, 1900 and that between U.S.
and Great Britain on January 2, 1930
Method of determining baselines under R.A. No. 3046, June 17, 1961, R.A. No.5446,
September 8, 1968; and R.A. No. 9522( Philippine Archipelagic Baselines Law) , March 10,
2009, using the straight line approach
Other territories over which the Philippines has sovereignty or jurisdiction
P.D. No. 1596, June 11, 1978
 Two Hundred-Mile Exclusive Economic Zone under the following:
P.D. No. 1599, June 11, 1978

Sovereignty; Dominion and Imperium, distinguished


Isagani Cruz v. Sec. of DENR, G. R. No. 135385, Dec. 6, 2000: The state has the right to govern and the
right to own properties and may regulate the exploitation, development and utilization of its natural resources
as it may deem fit in exercise of the general welfare clause.

Frivaldo v. COMELEC, 257 SCRA 727: The right to govern by virtue of a mandate from the people is not
absolute. The Court held that” the will of the people as expressed through the ballot cannot cure the vice of
ineligibility, especially if they mistakenly believed, as in this case, that the candidate was qualified.
Obviously, this rule requires strict application when the deficiency is lack of citizenship. If a person seeks to
serve in the Republic of the Philippines, he must owe his total loyalty to this country only, abjuring and
renouncing all fealty and fidelity to any other state.”
Rationales for the Act of State Doctrine:
– Respect for sovereignty of foreign states
 Underhill v. Hernandez, 168 US 250 (1897) p. 619: “Every sovereign State is bound to respect the
independence of every other sovereign State, and the courts of one country will not sit in judgment on
the acts of the government of another done within its own territory. Redress of grievances by reason
of such acts must be obtained through the means open to be availed of by sovereign powers as
between themselves.”

Basis of State Immunity, Art. XVI, Sec. 3. The state cannot be sued without its consent.
Dept. of Agriculture v. NLRC, 227 SCRA: The state cannot be sued without its consent. The assets of the
government cannot be held liable for liabilities of a private person.
When a suit is against the state and when it is not
Consent; Manner by which consent is given
Express consent: by provision of law; when government exercises its proprietary function; when
government initiates a suit.
Yujuico. Atienza, 472 SCRA 463. The City of Manila cannot be excused from paying the property owner the
balance of just compensation because it was the city which initiated the expropriation proceedings.
Implied consent:
When the Government enters into business contracts
When it would be inequitable for the Government to claim immunity
Scope of Consent
Chavez v. Sandiganbayan, 193 SCRA 282: A public officer may not be held liable for the counterclaim by
one of the accused when he performs his duties in good faith.

B. Power over foreign affairs


Treaty making power (Art. VII, Sec. 21)
Treaty distinguished from executive agreements
Arthur Lim et al v. Executive Secretary GR No. 131445, April 11, 2002: A party who does not any legal
standing cannot question the constitutionality of the Visiting Forces Agreement.
Please note that the Court has, in a prior case, has made a distinction between an Executive Agreement
and a Treaty. A treaty requires the ratification of the Senate while an Executive Agreement does not. The
VFA is considered supplemental to the Mutual Defense Treaty executed by the Philippine government and
the U.S. government and ratified by both the U.S. Senate and the Philippine Senate prior to the adoption of
the 1987 Constitution.
Read also the EDCA Ruling of the Supreme Court (January 13, 2016)
Deportation of undesirable aliens
Harvey et al v. Defensor-Santiago, 162 SCRA 1988: Under the theory of delegation of powers, the
Commissioner of Immigration, after due hearing, may exclude an alien and the alien’s liberty may be
restrained by virtue of a Mission Order signed by the Commissioner.

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C. Independent Foreign Policy and a Nuclear-Free Philippines (Art. II, Sections 7-8 and Art. XVIII,
Sections 4 and 25). This pertains to use of nuclear weapons and not nuclear source of energy.
Legality of the Use by a State of Nuclear Weapons, ICJ Reports, 1996
Nuclear Test Cases: ICJ Reports
New Zealand v. France, 1974
Australia v. France, 1974
See also Request for Examination (par. 63 of 1974 judgment), New Zealand v. France, 1995
Paquete Habana, 175 US 677, 1900

D. Respect for Human Dignity and Human Rights (Art. II, Sec. 11, Art. III, Sections 17-19, and Art.
XVI, Sec. 5(2))
The Universal Declaration of Human Rights (UDHR) is a declaration adopted by the United Nations
General Assembly as an offshoot of the aftermath of World War II. The International Bill of Human
Rights consists of the Universal Declaration of Human Rights, the International Covenant on Economic,
Social and Cultural Rights, and the International Covenant on Civil and Political Rights and its two Optional
Protocols.
In a strict sense, the Declaration is not treaty but it has been considered as a constitutive document for the
purpose of defining “fundamental freedoms “ and human rights.”

E. Adherence to International Law (Preamble, Art. II, Sec. 2, Sections 7-8)/ Extradition
The following are some of the generally accepted principles of international law which form part of the
Philippine Constitution:
Pacta Sunt Servanda: states must fulfill in good faith all its obligations (Article 26, Vienna
Convention); U.N. Declaration on Principles of international Law Concerning Friendly Relations and
Cooperation among States
Par in parem non habet imperium: sovereign equality among states; all states are sovereign equals;
an equal state cannot assume jurisdiction over another equal (Article 2, U.N. Charter which specifies
the following elements: states are judicially equal; each state enjoys the rights inherent to sovereignty;
each state has the duty to respect the personality of other states; the territorial integrity and political
independence of the state is inviolable; each state has the right freely to choose and develop its
political, social, economic and cultural systems; and each state has the duty to comply fully and in
good faith with its international obligations to live in peace with other states).
Principle of state immunity from suit: a state cannot be sued without its consent; two schools of
thought: absolute immunity (acta jure imperii) and restrictive immunity (acta jure gestionis)
Right of states to self-defense
Right to self-determination: Article 1, U.N. Charter; U.N. General Assembly Resolution 1514
(XV) adopted on 14 December 1960.
Rebus Sic Stantibus: things remain as they are unless there is a new circumstance/incident that
would affect the performance of an obligation under a treaty.

Secretary of Justice v. Judge Lantion, 343 SCRA 377. Speaking through Justice Melo, the Court said that
“the individual citizen is but a speck of particle or molecule vis-à-vis the vast and overwhelming powers of
government. His only guarantee against oppression and tyranny are his fundamental liberties under the Bill
of Rights which shield him in times of need.” In dismissing the petition, the Court upheld a citizen's basic due
process rights against the government's ironclad duties under a treaty.” The constitutional issue in the case
at bar does not even call for "justice outside legality," since private respondent's due process rights, although
not guaranteed by statute or by treaty, are protected by constitutional guarantees. It chose not to favor the
strict construction over guarantees against the deprivation of liberty because that would not be in keeping
with the principles of democracy enshrined in the Constitution.

F. The Philippines renounces War as an Instrument of National Policy


In the field of public international law, the law of war has two dimensions: justifications to engage in war
(jus ad bellum) and the limits to acceptable wartime conduct (jus in bello or International Humanitarian
Law). As a humanitarian concern, the laws of war address declarations of war, acceptance of surrender and
the treatment of prisoners of war; military necessity (use of an attack or action intended to help the military
objective and use of proportional and excessive force to endanger civilians(, along with distinction (careful
assessment as to who are combatants and the civilians) and proportionality( the legal use of force whereby
belligerents must make sure that harm caused to civilians or civilian property is not excessive in relation to
the concrete and direct military advantage anticipated attack anticipated by an attack on military objective;
and the prohibition of certain weapons that may cause unnecessary suffering.

The laws of war should mitigate the consequences of war by:


1. Shielding both combatants and non-combatants from unnecessary suffering;
2. Ensuring that certain fundamental human rights of persons who fall into the hands of the enemy,
particularly prisoners of war, the wounded and sick, and civilians, are protected; and
3. Endeavouring that peace is restored.
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G. Protection of Migrant Workers
The Philippines is a signatory to the International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families. This instrument is multilateral treaty governing the
protection of migrant workers and families. Concluded on 18 December 1990. It entered into force on 1 July
2003 after the threshold of 20 ratifying States was reached in March 2003. The Committee on Migrant
Workers (CMW) monitors implementation of the convention, and is one of the seven UN-linked human rights
treaty bodies.

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