BAR NOTES IN

POLITICAL and INTERNATIONAL LAW

by
Dean Salvador A. Poquiz*

Q1: When is war justified under International Law?

A : (1) As a matter of national self-defense; and
(2) When supported by a resolution of the UN Security Council.

Q2: Whare the forcible measures short of war for settlement of International disputes?
A : They are the following:
1) Severance of Diplomatic relations
2) Retorsion
3) Reprisals
4) Embargo
5) Boycott
6) Non-Intercourse
7) Pacific Blockade
8) Collective measures under the UN Charter

Q3: Explain the following concepts:

A : 1. Pacta sunt servanda – Treaties must be performed in good faith.
2. Most favored nation clause – a clause in the treaty that grants to the other party equal treatment
(not less favourable) that has been granted or may be granted to the most favored other country.
This is common in treaties of commercial nature, like in the TRIPS Agreement on intellectual
property rights appended to the treaty creating the World Trade Organization (WTO) and the
GATT.
3. Doctrine of Rebus Sic Stantibus (things remaining as they are) – A party to a treaty is
discharged in the event a change of circumstances occurs which renders the fulfilment of the
treaty grossly unjust, oppressive and iniquitous.

Q4: What are the limitations to the doctrine of rebus sic stantibus?
A : They are the following:
1. Applicable only to treaties of indefinite or perpetual duration.
2. Not applicable to the provisions which had been completely executed prior to the change
of circumstances.
3) A party who caused the change in the circumstance cannot invoke the doctrine.
4) The change of circumstance should have been unforeseen at the time of the conclusion of
the treaty.

Q5: State the Universal jurisdiction of the International Court of Justice.

A : They are the following:
- The International Court of Justice has jurisdiction over the following crimes:

a) The crime of genocide

b) Crimes against humanity
c) War crimes
d) The crime of aggression

Q6: What is Genocide?

A : Genocide means any of the following acts committed with intent to destroy, in whole; or
in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the groups;
(e) Forcibly transferring children of the group to another group.

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*See: Current Issues on Political and International Law by Dean Arturo M. De Castro; The University of
Manila Law Gazette, Year 2017-2018

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Q7: What are the Crimes against humanity?
A : Crimes against humanity means any of the following acts when committed as part of a widespread
or systematic attack directed against any civilian population with knowledge of the attack:
(1) Murder;
(2) Extermination:
(3) Enslavement;
(4) Deportation or forcible transfer of population;
(5) Imprisonment or other severe deprivation of physical liberty in violation of
fundamental rules of international law;
(6) Torture;
(7) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or
any other form of sexual violence of comparable gravity;
(8) Persecution against any identifiable group or collectively on political, racial, national, ethnic,
cultural, religious, gender as defined in paragraph 3, or other grounds that are universally
recognized as impermissible under international law, in connection with any act referred to
in this paragraph or any crime within the jurisdiction of the Court;
(9) Enforced disappearance of persons;
(10) The crime of apartheid;
(11) Other inhumane acts of a similar character intentionally causing great suffering, or serious
injury to body or to mental or physical health.

Q8: What are War crimes?

A : War crimes means:
(1) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following
acts against persons or property protected under the provisions of the relevant Geneva
Convention;
(i) Willful killing;
(ii) Torture or inhuman treatment, including biological experiments;
(iii) Wilfully causing great suffering, or serious injury to body or health;
(iv) Extensive discretion and appropriation of property, not justified by military
necessity and carried out unlawfully and wantonly;
(v) Compelling a prisoner of war or other protected persons to serve in the forces
of a hostile Power;
(vi) Wilfully depriving a prisoner of war or other protected person of the rights of
fair and regular trial;
(vii) Unlawful deportation or transfer or unlawful confinement;
(viii) Taking of hostages;
(2) Other serious violations of the laws and customs applicable in international armed conflict,
within the established framework of international law.

Q9: What is the meaning of “enforced disappearance of persons”?

A : “Enforced disappearance of persons” means the arrest, detention or abduction of persons by, or
with the authorization, support of acquiescence of, a State or a political organization,
followed by a refusal to acknowledge that deprivation of freedom or to give information on
the fate or whereabouts of those persons, with the intention of removing them from the
protection of the law for a prolonged period of time.

Q10: Define: a) Writ of Amparo; b) Writ of Habeas Data.

A : a) The Writ of Amparo is a remedy available to any person whose right to life, liberty and
security is violated or threatened with violation by an unlawful act or omission of a public
official or employee, or of a private individual or entity, including extra-legal killings and
enforced disappearances or threats thereof (Sec. 1, Rule of the Writ of Amparo).
b) The writ of habeas data is a remedy available to any person whose right to privacy in life,
liberty or security is violated or threatened by an unlawful act or omission of a public official
or employee, or of a private individual or entity engaged in the gathering, collecting or storing
of data or information regarding the person, family, home and correspondence of the
aggrieved party. (Sec. 1, Rule on the Writ of Habeas Data).

Q11: What is an archipelagic doctrine?

A : An archipelago is a formation of two or more islands geographically considered as a whole under
the archipelagic doctrine which regards all waters around, between and connecting the
different islands of the archipelago, irrespective of their width or dimension, shall form part
of the internal or national waters, subject to its exclusive sovereignty.

Q12: What are the 2 kinds of archipelagic states? To which kind is the Philippine classified?
A : (1) Coastal Archipelagos are those situated so close to the mainland that they may reasonably
be considered part and parcel thereof, forming more or less an outer coastline from which the
marginal sea is measured.

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 (2) Outlying or mid-ocean archipelagos are groups of islands situated out in the ocean at such
a distance from the coasts of firm land as to be considered and independent while rather than
forming part of the mainland.
The Philippines is a mid-ocean archipelago.

Q13: In the case of Piatco, what is expropriation pursuant to R.A. 8914? What is its scope?
A : RA 8914 which requires payment of just compensation directly to the owner based on zonal
valuation in case of land and the value of the improvement under replacement method applies to
expropriation for national infrastructure projects.
Rule 67 of the Rules of Court applies in determining the assessed value and the mode of
deposit of just compensation for expropriation for purposes OTHER THAN national infrastructure
project.
Congress cannot legislate on the procedural aspects of expropriation since this power lies with
the court under the constitutional rule making power of the Supreme Court.

Q14: What is due process?

A : Due Process. The essence of procedural due process is the ample opportunity or right to be heard.

Q15: What is just compensation?

A : Just Compensation is the full and fair equivalent of the property taken from the owner.

Q16: Is Preliminary Investigation required in the resolution of the electoral aspects of the disqualification
case?
A : No, it is not required as per settled jurisprudence.

Q17: Separation of powers, how is it violated?

A : 1) Interference with; or
2) Assumption of another department’s function

SIGNIFICANT POLITICAL LAW TIDBITS

1. United Convention on the Law of the Sea (UNCLOS)

A. Territorial Sea – 12 nautical miles from the baseline.
B. Contiguous zone – 21 nautical miles from the baseline.
C. Exclusive economic zone – 200 miles from the baseline.
Sovereign rights to explore, exploit, conserve and manage natural resources, living or non-living,
of the waters superjacent to the sea beds and its subsoil, and conduct other activities for the
economic exploitation and exploration of the zone, such as production of energy from waters,
currents and winds.
D. Continental shelf – 200 nautical miles from the baseline. Seabed and subsoil of the submarine
areas are beyond the territorial sea.

2. Regime of Islands – above sea level at the high tide are entitled to:
1. Territorial sea;
2. Contiguous zone;
3. Exclusive economic zone; and
4. The continental shelf.
5.
3. Filipino citizens are those:
1. Whose fathers or mothers are Filipino citizens.
2. Born before January 17, 1973 of Filipino mothers who selected Philippine citizenship upon
reaching the age of majority. (Grace Poe Case).
4. Dual Citizens are disqualified from running for any elective local position (Local Government Code,
Sec. 40).
5. A dual citizen who runs for public office automatically renounces his foreign citizenship (Mercado
v. Manzano).
6. An American who ran for public office in the Philippines became stateless (Frivaldo Case).
7. Natural born Filipino is one who is a
1. Filipino citizen from birth,
2. Born of Filipino mother prior to January 17, 1973 who elected Philippine citizenship upon
reaching the age of majority,
3. “Whose fathers are citizens” does not distinguish between “legitimate” and “illegitimate”
paternity, which under the civil code governs private and personal relation on one’s political state
(Tecson v. Comelec).
8. Gamboa v. Teves, October 9, 2012

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 60/40 requirement limiting stock ownership to 40% of foreign capital applies to both the voting
control and the beneficial ownership (e.g. 40% of common stock, preferred voting stock or preferred
non-voting stock.)
9. People’s Initiative and referendum is the direct power “to prove and enact laws or approve or reject
any act or law or part thereof passed by the congress or local legislative body (Art. VI, Sec. 32
(constitution). The implementing law (RA 6735) is valid for laws, ordinances and resolutions, but
not for Amendments to the constitution (Santiago v. Comelec).
10. Freedom of Religion or Conscience
a. The state cannot meddle into the internal affairs of the church (Imbong v. Ochoa (2014). “The
separation of church and state shall be inviolable.”
b. Church sanction of cohabitation with a married man excepts the woman from church of
immorality (Estrada v. Escretor).
c. The policy of the government on contraceptives does not violate the non-establishment clause
of the Constitution (Imbong v. Ochoa).
d. Free exercise of religion clause absolutely protects individual religious convictions.
Conscientious objectors based on religious belief must be respected (Ibid).
11. The Civil Registrar in the US who refuses issuance of marriage license for same sex marriage was
jailed for contempt of court. However, in the Philippines same sex marriage is not valid, because the
purpose of marriage is procreation.
12. Writ of Kalikasan. It is an Order against violation or threat of violation of constitutional right to a
balanced and healthful ecology by an unlawful act involving an environmental damages of such
magnitude as to prejudice the life, health of property of inhabitants in two or more cities of provinces.
13. a) Obligation erga omnes. .Obligation of a state to the international community.
b) Jus cogens – norms accepted and recognized by the international community.
14. Does the BBL, as originally drafted, create a Bangsamora state? If the following essential requisites
are present, Bangsamoro is a state:
1. A permanent population;
2. A defined territory;
3. Organized Government; and
4. Capacity to enter into diplomatic intercourse with other states.
15. Opinio juliussive recesitates. The belief of states that a particular practice is required by law, and not
because of courtesy or political expediency (Norta v. Sea Continental Shelf cases).
16. Executive Agreement – is one entered by the President in the form of exchange of notes, or
“agreements” or “protocols”, e.g. a loan agreement coupled with an exchange of notes between 2
governments (Abaya v Ebdane). The north rail contract entered into by an agency of the Philippine
government with an agency of the Chinese government with personalities separate and distinct from
the Philippine and Chinese Governments is not an Executive Order.
- An executive order is governed by International Law.
17. What is Statelessness? It is a status of a person born without nationality or one who loses nationality
without retaining or acquiring another (Frivaldo case).
18. Calvo Clause requires a foreigner to rely exclusively on local remedies and not only diplomatic
protection.
19. Extradition:
a) Rule of Double Criminality provides that the act must be punishable in both countries.
b) Political and religious offenders are not subject to extradition except those guilty of genocide or
murder of heads of states.
20. International Human Rights are those fundamental and inalienable rights which are essential for life
as a human being if recognized and protected by the international community.
Universal Declaration of Human Rights includes the rights to nationality, liberty, security, privacy,
fair trial, freedom of expression, presumption of innocence, to peaceful assembly and association.
21. International Humanitarian Law a branch of International law governing armed conflicts designed to
lessen armed violence, to mitigate human sufferings, to limit the means of military operation and to
protect those who do not participate in armed hostilities.
22. Doctrine of Primary Jurisdiction – It simply means that the Courts will not intervene to resolve issues
which require the expertise of administrative agencies.
23. Exhaustion of administrative remedies; exceptions
1. Purely legal questions,
2. Urgency,
3. No other plain or speedy adequate remedy,
4. Oppressive and patently unreasonable,
5. Would cause great and irreparable damage or injury
6. Qualified political agency,
7. Lack or excess of jurisdiction, and
8. Quo warranto.

24. Sometime in 2011, Philippine President Santos signed a bilateral agreement with the Republic
Kafiristan, which contains, among other things, a provision allowing the investment by Kafiristan
citizens in preferred stocks, up to a maximum of 40%, of Philippine advertising companies. The

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Senate believes that the agreement is a treaty that should be transmitted to it for concurrence, but
President Guzman, the newly elected president in 2013 who ran under a nationalist platform, refused
to transmit the instrument to the Senate for its action.
(A) May members of the Senate file a petition for mandamus against President Guzman and the
Department of Foreign Affairs Secretary to compel them to transmit the agreement as a treaty
for the Senate’s concurrence? (4%)
(B) Assume that President Guzman transmitted the agreement, and the Senate ratified it as a treaty.
Would a petition for certiorari to annul the treaty’s ratification prosper on the ground that it
violated Section II, Article XVI of the 1987 Constitution, which limits foreign participation in
advertising companies to 30% of its capital stock? (4%)

ANSWER:
(A) No, because ratification of the treaty is purely political question outside the domain of the
Supreme Court of Judicial Review. It relates to the conduct of foreign relations for which the
President is answerable only to the people and to his own conscience.
(B) Yes. The Petition for Certiorari to annul the treaty will prosper because the foreign investment
in preferred shares up to 40% of Philippine Advertising Company is prohibited by the
Constitution. As held in the leading case of Wilson Gamboa v. Teves, the limitation on foreign
investments in partially nationalized business activities is computed both on the common shares
of stock which are authorized to vote and in preferred shares which are not authorized to vote.
While the 1987 Constitution does not distinguish between common shares of stock authorized
to vote and preferred non-voting shares, the Supreme Court held in Gamboa v. Teves in the
resolution of the motion for reconsideration that the percentage limitation of the foreign
investment must be computed separately on both the common shares and the preferred shares.

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