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2008 L E I Notes in Public International Law
2008 L E I Notes in Public International Law
Public International
Law
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Notes:
INTRODUCTION and
arbitration,
Definition reprisals and
Public v Private International Law even war
Basis of Public International Law 3. Source Derived from Consists mainly
1. Naturalist such sources from the
2. Positivists as lawmaking
3. Eccletics international authority of each
Three Grand Divisions customs, state.
Relations between International and Municipal international
Law conventions
1. From the viewpoint of doctrine and the
a. Dualist general
b. Monists principles of
2. From the view of practice law.
a. Doctrine of Transformation 4. Subject Applies to Regulates the
b. Doctrine of Incorporation relations relations of
states inter se individuals
¯°º°¯ and other whether of the
DEFINITION OF Public International Law international same nationality
It is the body of rules and principles that are persons. or not.
recognized as legally binding and which govern
the relations of states and other entities invested 5. Infractions are Generally, entails
with international legal personality. Formerly Responsib usually only individual
known as “law of nations” coined by Jeremy ility for collective in responsibility.
Bentham in 1789. violation the sense that
it attaches
Public International Law Distinguished From directly to the
Private International Law/Conflict of Laws state and not
It is that part of the law of each State which to its
determines whether, in dealing with a factual nationals.
situation, an event or transaction between private
individuals or entities involving a foreign element, BASIS OF PIL – 3 SCHOOLS OF THOUGHT [Why
the law of some other State will be recognized. are rules of international law binding?]
the Constitution, these laws must be stricken out by the Philippines, expressly or impliedly, as a
as invalid. member of the family of nations. By the doctrine Notes:
of incorporation, the country is bound by
generally accepted principles of international law,
In states where the constitution is the highest law
which are considered to be automatically part of
of the land, such as in ours, both statutes and
our own laws. One of the oldest and most
treaties may be invalidated if they are in conflict
fundamental rules in international law is pacta
with the constitution.
sunt servanda – international agreements must be
performed in good faith. A state which has
Supreme Court has the power to invalidate a contracted valid international obligations is bound
treaty – Sec. 5(2)(a), Art. VIII, 1987 Constitution to make in its legislations such modifications as
may be necessary to ensure the fulfillment of the
Q: What is the doctrine of incorporation? How obligations.
is it applied by local courts?
Held: Under the doctrine of incorporation, rules By their inherent nature, treaties really limit or
of international law form part of the law of the restrict the absoluteness of sovereignty. By their
land and no further legislative action is needed to voluntary act, nations may surrender some
make such rules applicable in the domestic aspects of their state power in exchange for
sphere. greater benefits granted by or derived from a
convention or pact. After all, states, like
The doctrine of incorporation is applied whenever individuals, live with coequals, and in pursuit of
municipal tribunals (or local courts) are mutually covenanted objectives and benefits,
confronted with situations in which there appears they also commonly agree to limit the exercise of
to be a conflict between a rule of international their otherwise absolute rights. Thus, treaties
law and the provisions of the Constitution or have been used to record agreements between
statute of the local state. Efforts should first be States concerning such widely diverse matters as,
exerted to harmonize them, so as to give effect to for example, the lease of naval bases, the sale or
both since it is to be presumed that municipal law cession of territory, the termination of war, the
was enacted with proper regard for the generally regulation of conduct of hostilities, the formation
accepted principles of international law in of alliances, the regulation of commercial
observance of the Incorporation Clause in Section relations, the settling of claims, the laying down
2, Article II of the Constitution. In a situation of rules governing conduct in peace and the
however, where the conflict is irreconcilable and establishment of international organizations. The
a choice has to be made between a rule of sovereignty of a state therefore cannot in fact and
international law and municipal law, in reality be considered absolute. Certain
jurisprudence dictates that municipal law should restrictions enter into the picture: (1) limitations
be upheld by the municipal courts for the reason imposed by the very nature of membership in the
that such courts are organs of municipal law and family of nations and (2) limitations imposed by
are accordingly bound by it in all circumstances. treaty stipulations. (Tanada v. Angara, 272 SCRA
The fact that international law has been made 18, May 2, 1997 [Panganiban])
part of the law of the land does not pertain to or
imply the primacy of international law over Doctrine of Transformation –
national or municipal law in the municipal sphere. Legislative action is required to make the treaty
The doctrine of incorporation, as applied in most enforceable in the municipal sphere.
countries, decrees that rules of international law
are given equal standing with, but are not Generally accepted rules of international law are
superior to, national legislative enactments. not per se binding upon the state but must first be
Accordingly, the principle of lex posterior derogat embodied in legislation enacted by the lawmaking
priori takes effect – a treaty may repeal a statute body and so transformed into municipal law. This
and a statute may repeal a treaty. In states doctrine runs counter Art. II, Sec. 2, of the 1987
where the Constitution is the highest law of the Constitution.
land, such as the Republic of the Philippines, both A reading of the case of Kuroda v Jalandoni, [GRN
statutes and treaties may be invalidated if they L-2662 March 26, 1949], one may say that
are in conflict with the Constitution. (Secretary Supreme Court expressly ruled out the Doctrine of
of Justice v. Hon. Ralph C. Lantion, G.R. No. Transformation when they declared that generally
139465, Jan. 18, 2000, En Banc [Melo]) accepted principles of international law form a
part of the law of our nation even if the
Q: Is sovereignty really absolute and all- Philippines was not a signatory to the convention
encompassing? If not, what are its restrictions embodying them, for our Constitution has been
and limitations? deliberately general and extensive in its scope
Held: While sovereignty has traditionally been and is not cofined to the recognition of rules and
deemed absolute and all-encompassing on the principles of international law as contained in
domestic level, it is however subject to treaties to which our government may have been
restrictions and limitations voluntarily agreed to or shall be a signatory.
5 PUBLIC INTERNATIONAL LAW 2008
SOURCES
6 PUBLIC INTERNATIONAL LAW 2008
SUBJECTS
Q: When does an entity acquire international Notes:
Subject Defined personality?
Object Defined A: When it has right and duties under
2 Concepts of Subjects of International Law international law; can directly enforce its rights;
State as Subjects of International Law and may be held directly accountable for its
Elements of a State obligations.
4. People Objects Defined
5. Territory An Object is a person or thing in respect of which
6. Government rights are held and obligations assumed by the
a) 2 kinds Subject. Thus, it is not directly governed by the
(1) De Jure rules of international law. There is no direct
(2) De Facto – 3 kinds enforcement and accountability. An intermediate
b) 2 functions agency—the Subject—is required for the
(1) Constituent enjoyment of its rights and for the discharge of its
(2) Ministrant obligations.
c) Effects of change in government
7. Sovereignty SUBJECTS OF INTERNATIONAL LAW
a) Kinds 2 Concepts:
b) Characteristics 1. Traditional concept
c) Effects of change in sovereignty ★ Only States are considered subjects of
Principle of State Continuity international law.
Fundamental Rights of States
1. Right to Sovereignty and Independence; 2. Contemporary concept
2. Right to Property and Jurisdiction; ★ Individuals and international
3. Right to Existence and Self-Defense organizations are also subjects because
4. Right to Equality they have rights and duties under
5. Right to Diplomatic Intercourse international law. (Liang vs. People,
Recognition GRN 125865 [26 March 2001])
Level of Recognition
A. Recognition of State - 2 Schools of The STATE as subject of International Law
Thought State is a community of persons more or less
a. Constitutive School numerous, permanently occupying a definite
b. Declaratory School portion of territory, independent of external
B. Recognition of Government control, and possessing an organized government
a. Criteria for Recognition to which the great body of inhabitants render
1. Objective Test – habitual obedience.
2. Subjective Test
(a) Tobar/Wilson Doctrine Q: The Japanese government confirmed that
(b) Estrada Doctrine during the Second World War, Filipinas were
b. Kinds of Recognition among those conscripted as “comfort women”
1. De Jure (prostitutes) for Japanese troops in various
2. De Facto parts of Asia. The Japanese government has
c. Consequences of Recognition of accordingly launched a goodwill campaign and
Government offered the Philippine government substantial
C. Recognition of Belligerency assistance for a program that will promote
a. Belligerency through government and non-governmental
b. 2 Senses of Belligerency organization women’s rights, child welfare,
c. Requisites of Belligerency nutrition and family health care. An executive
d. Consequences of Recognition of agreement is about to be signed for that
Belligerents purpose. The agreement includes a clause
e. Forms of Recognition whereby the Philippine government
acknowledges that any liability to the comfort
¯°º°¯ women or their descendants are deemed
covered by the reparations agreements signed
Subject Defined and implemented immediately after the Second
A Subject is an entity that has an international World War. Julian Iglesias, descendant of now
personality. An entity has an international deceased comfort woman, seeks you advise on
personality if it can directly enforce its rights and the validity of the agreement. Advise him.
duties under international law. Where there is no (1992 Bar)
direct enforcement of accountability and an A: The agreement is valid. The comfort woman
intermediate agency is needed, the entity is and their descendant cannot assert individual
merely an object not a subject of international claims against Japan. As stated in Paris Moore v.
law. Reagan, 453 US 654, the sovereign authority of
8 PUBLIC INTERNATIONAL LAW 2008
the state to settle claims of its nationals against Holy See v. Rosario
foreign countries has repeatedly been recognized. [GR 101949, 01 Dec. 1994] Notes:
This may be made without the consent of the
nationals or even without consultation with them.
The Lateran Treaty established the STATEHOOD of
Since the continued amity between the State and
other countries may require a satisfactory the Vatican City “for the purpose of assuring to
the Holy See absolute and visible independence
compromise of mutual claims, the necessary
power to make such compromise has been and of guaranteeing to it indisputable sovereignty
also in the field of international relations”.
recognized. The settlement of such claims may
be made by executive agreement.
From the wordings of the Lateran Treaty, it is
Q: What must a person who feels aggrieved by difficult to determine whether the statehood is
the acts of a foreign sovereign do to espouse his vested in the Holy See or in the Vatican City.
cause?
Held: Under both Public International Law and The Vatican City fits into none of the established
Transnational Law, a person who feels aggrieved categories of states, and the attribution to it of
by the acts of a foreign sovereign can ask his own “sovereignty” must be made in a sense different
government to espouse his cause through from that in which it is applied to other states.
diplomatic channels.
The Vatican City represents an entity organized
Private respondent can ask the Philippine not for political but for ecclesiastical purposes
government, through the Foreign Office, to
and international objects.
espouse its claims against the Holy See. Its first
task is to persuade the Philippine government to
take up with the Holy See the validity of its Despite its size and object, it has an independent
claims. Of course, the Foreign Office shall first government of its own, with the Pope, who is also
make a determination of the impact of its head of the Roman Catholic Church, as the Holy
espousal on the relations between the Philippine See or Head of State, in conformity with its
government and the Holy See. Once the traditions, and the demands of its mission.
Philippine government decides to espouse the Indeed, its world-wide interests and activities are
claim, the latter ceases to be a private cause. such as to make it in a sense an “international
state”.
According to the Permanent Court of International
Justice, the forerunner of the International Court It was noted that the recognition of the Vatican
of Justice: City as a state has significant implication – that it
is possible for any entity pursuing objects
“By taking up the case of one of its subjects and essentially different from those pursued by states
by resorting to diplomatic action or international to be invested with international personality.
judicial proceedings on his behalf, a State is in
reality asserting its own rights – its right to Since the Pope prefers to conduct foreign
ensure, in the person of its subjects, respect for relations and enter into transactions as the Holy
the rules of international law.” (The Mavrommatis See and not in the name of the Vatican City, one
Palestine Concessions, 1 Hudson, World Court can conclude that in the Pope's own view, it is the
Reports 293, 302 [1924]) (Holy See, The v. Holy See that is the international person.
Rosario, Jr., 238 SCRA 524, 533-534, Dec. 1, 1994,
En Banc [Quiason])
The Philippines has accorded the Holy See the
Q: What is the status of an individual under status of a foreign sovereign. The Holy See,
public international law? (1981 Bar) through its Ambassador, the Papal Nuncio, has
A: According to Hanks Kelson, “while as a general had diplomatic representations with the
rule, international law has as its subjects states Philippine government since 1957. This appears to
and obliges only immediately, it exceptionally be the universal practice in international
applies to individuals because it is to man that the relations.
norms of international law apply, it is to man
whom they restrain, it is to man who, Q: Discuss the Status of the Vatican and the
international law thrusts the responsibilities of Holy See in International Law.
law and order.” Held: Before the annexation of the Papal States
by Italy in 1870, the Pope was the monarch and
Q: Is the Vatican City a state? he, as the Holy See, was considered a subject of
A: YES! International Law. With the loss of the Papal
States and the limitation of the territory under
the Holy See to an area of 108.7 acres, the
position of the Holy See in International Law
became controversial.
9 PUBLIC INTERNATIONAL LAW 2008
External - Non-political
☀ the power of the State to direct its ★ remains valid
relations with other States ★ EX.: Conviction for defamation
☀ also called “Independenc”e
EFFECTS OF A CHANGE IN SOVEREIGNTY
Characteristics of Sovereignty 1. Political Laws are deemed ABROGATED.
1. permanent Q: Why?
2. exclusivity A: They govern relations between the State
3. comprehensiveness and the people.
4. absoluteness
5. individuality 2. Non-Political Laws generally continue in
6. inalienability operation.
7. imprescriptibility Q: Why?
A: Regulates only private relations
Q: What happens to sovereignty if the acts of
authority cannot be exercised by the legitimate XPN:
authority? (a) Changed by the new sovereign
A: Sovereignty not suspended. (b) Contrary to institutions of the new
sovereign
EX.: Japanese Occupation during WWII
★ Sovereignty remained with the US Q: What is the effect of change of sovereignty
★ Japanese merely took over the exercise when the Spain ceded the Philippines to the
of acts of sovereignty U.S.?
A: The effect is that the political laws of the
Q: In this case, what are the effects on the former sovereign are not merely suspended but
laws? abrogated. As they regulate the relations
A: Political Laws - between the ruler and the rules, these laws fall to
GR: Suspended! the ground ipso facto unless they are retained or
★ Subject to revival under jus postliminium re-enacted by positive act of the new sovereign.
– i.e., once the legitimate authority Non-political laws, by contrast, continue in
returns, the political laws are revived operation, for the reason also that they regulate
private relations only, unless they are changed by
★ Jus Postliminium – roman law concept. If the new sovereign or are contrary to its
a Roman Citizen is captured, he loses his institutions.
rights as a Roman citizen, but once he
returns to Rome, he recovers all those Q: What is the effect of Japanese occupation to
rights again the sovereignty of the U.S. over the Philippines?
13 PUBLIC INTERNATIONAL LAW 2008
A: Sovereignty is not deemed suspended although without the latter incurring the risk of being
acts of sovereignty cannot be exercised by the prosecuted for treason. To allow suspension is to Notes:
legitimate authority. Thus, sovereignty over the commit political suicide.
Philippines remained with the U.S. although the
Americans could not exercise any control over the Q: Is sovereignty really absolute?
occupied territory at the time. What the A: In the domestic sphere – YES! In international
belligerent occupant took over was merely the sphere – NO!
exercise of acts of sovereignty.
Tañada, et al. vs. Angara, et al.
Q: Distinguish between Spanish secession to the [GR 118295, 02 May 1997]
U.S. and Japanese occupation during WWII
regarding the political laws of the Philippines.
While sovereignty has traditionally been deemed
A: There being no change of sovereignty during
the belligerent occupation of Japan, the political absolute and all-encompassing on the domestic
level, it is however subject to restrictions and
laws of the occupied territory are merely
suspended, subject to revival under jus limitations voluntarily agreed to by the
Philippines, expressly or impliedly, as a member
postliminium upon the end of the occupation. In
both cases, however, non-political laws, remains of the family of nations.
effective.
By the doctrine of incorporation, the country is
NOTES: bound by generally accepted principles of
Members of the armed forces are still covered by international law, which are considered to be
the National Defense Act, the Articles of War and automatically part of our own laws.
other laws relating to the armed forces even
during the Japanese occupation. One of the oldest and most fundamental rules in
international law is pacta sunt servanda –
A person convicted of treason against the international agreements must be performed in
Japanese Imperial Forces was, after the good faith.
occupation, entitled to be released on the ground
that the sentence imposed on him for his political
A treaty engagement is not a mere moral
offense had ceased to be valid but not on non- obligation but creates a legally binding obligation
political offenses.
on the parties. By their inherent nature, treaties
limit or restrict the absoluteness of sovereignty.
Q: May an inhabitant of a conquered State be
By their voluntary act, nations may surrender
convicted of treason against the legitimate some aspects of their state power in exchange for
sovereign committed during the existence of
greater benefits granted by or derived from a
belligerency? convention or pact.
A: YES. Although the penal code is non-political
law, it is applicable to treason committed against
the national security of the legitimate States, like individuals, live with coequals, and in
government, because the inhabitants of the pursuit of mutually covenanted objectives and
occupied territory were still bound by their benefits, they also commonly agree to limit the
allegiance to the latter during the enemy exercise of their otherwise absolute rights.
occupation. Since the preservation of the
allegiance or the obligation of fidelity and Thus, a state’s sovereignty cannot in fact and in
obedience of a citizen or subject to his reality be considered absolute. Certain
government or sovereign does not demand from restrictions enter into the picture:
him a positive action, but only passive attitude or Limitations imposed by the very nature of
forbearance from adhering to the enemy by giving membership in the family of nations; and
the latter aid and comfort, the occupant has no Limitations imposed by treaty stipulations.
power, as a corollary of the preceding
consideration, to repeal or suspend the operation
of the law of treason. Thus, when the Philippines joined the UN as one
of its 51 charter members, it consented to restrict
Q: Was there a case of suspended allegiance its sovereign rights under the “concept of
during the Japanese occupation? sovereignty as AUTO-LIMITATION.”
A: None. Adoption of the petitioner's theory of
suspended allegiance would lead to disastrous The underlying consideration in this partial
consequences for small and weak nations or surrender of sovereignty is the reciprocal
states, and would be repugnant to the laws of commitment of the other contracting states in
humanity and requirements of public conscience, granting the same privilege and immunities to the
for it would allow invaders to legally recruit or Philippines, its officials and its citizens.
enlist the quisling inhabitants of the occupied
territory to fight against their own government
14 PUBLIC INTERNATIONAL LAW 2008
against the use of force prescribed by the United pressure Country Y to release captured
Nations Charter and it does not fall under any of members of the terrorist group. Ali Baba Notes:
the exceptions to that prohibition. threatened to repeat its terrorist acts against
Country Y if the latter and its allies failed to
The UN Charter in Article 2(4) prohibits the use of accede to Ali Baba’s demands. In response,
force in the relations of states by providing that Country Y demanded that Country X surrender
all members of the UN “shall refrain in their and deliver Bin Derdandat to the government
international relations from the threat or use of authorities of Country Y for the purpose of trial
force against the territorial integrity or political and “in the name of justice.” Country X refused
independence of any state, or in any other to accede to the demand of Country Y.
manner inconsistent with the purposes of the
United Nations.” This mandate does not only What action or actions can Country Y legally
outlaw war; it encompasses all threats of and acts take against Ali Baba and Country X to stop the
of force or violence short of war. terrorist activities of Ali Baba and dissuade
Country X from harboring and giving protection
As thus provided, the prohibition is addressed to to the terrorist organization? Support your
all UN members. However, it is now recognized answer with reasons. (2002 Bar)
as a fundamental principle in customary
international law and, as such, is binding on all A: (1) Country Y may exercise the right of self-
members of the international community. defense, as provided under Article 51 of the UN
Charter “until the Security Council has taken
The action taken by the allied forces cannot be measure necessary to maintain international
justified under any of the three exceptions to the peace and security.” Self-defense enables
prohibition against the use of force which the UN Country Y to use force against Country X as well
Charter allows. These are: (1) inherent right of as against the Ali Baba organization.
individual or collective self-defense under Article
51; (2) enforcement measure involving the use of (2) It may bring the matter to the Security Council
armed forces by the UN Security Council under which may authorize sanctions against Country X,
Article 42; and (3) enforcement measure by including measure invoking the use of force.
regional arrangement under Article 53, as Under Article 4 of the UN Charter, Country Y may
authorized by the UN Security Council. The allied use force against Country X as well as against the
forces did not launch military operations and did Ali Baba organization by authority of the UN
not occupy Iraq on the claim that their action was Security Council.
in response to an armed attacked by Iraq, of
which there was none. Alternative A: Under the Security Council
Resolution No. 1368, the terrorist attack of Ali
Moreover, the action of the alleged allied forces Baba may be defined as a threat to peace, as it
was taken in defiance or disregard of the Security did in defining the 11 September 2001 attacks
Council Resolution No. 1441 which set up “an against the United States. The resolution
enhanced inspection regime with the aim of authorizes military and other actions to respond
bringing to full and verified completion the to terrorist attacks. However, the use of military
disarmament process,” giving Iraq “a final force must be proportionate and intended for the
opportunity to comply with its disarmament purpose of detaining the persons allegedly
obligations.” This resolution was in the process of responsible for the crime and to destroy military
implementation; so was Iraq’s compliance with objectives used by the terrorists.
such disarmament obligations.
The fundamental principles of international
Q: On 31 October 2001, members of Ali Baba, a humanitarian law should be respected. Country Y
political extremist organization based in and cannot be granted sweeping discretionary powers
under the protection of Country X and that include the power to decide what states are
espousing violence worldwide as a means of behind the terrorist organizations. It is for the
achieving its objective, planted high-powered Security Council to decide whether force may be
explosives and bombs at the International Trade used against specific states and under what
Tower (ITT) in Jewel City in Country Y, a conditions the force may be used.
member of the United Nations. As a result of
the bombing and the collapse of the 100-story Q: Is the United States justified in invading Iraq
twin towers, about 2000 people, including invoking its right to defend itself against an
women and children were killed or injured and expected attack by Iraq with the use of its
billions of dollars in property were lost. biological and chemical weapons of mass
destruction?
Immediately after the incident, Ali Baba, A: The United States is invoking its right to
speaking through its leader Bin Derdandat, defend itself against an expected attack by Iraq
admitted and owned responsibility for the with the use of its biological and chemical
bombing of ITT, saying that it was done to weapons of mass destruction. There is no
16 PUBLIC INTERNATIONAL LAW 2008
evidence of such a threat, but Bush is probably the UN Charter on the use of force in self-
invoking the modern view that a state does not defense? (1985 Bar) Notes:
have to wait until the potential enemy fires first. A: An armed attack is not a requirement for the
The cowboy from Texas says that outdrawing the exercise of the right of self-defense. However,
foe who is about to shoot is an act of self- the attack of State B on State C cannot be
defense. justified as an act of self-defense under Art. 51 of
the UN Charter considering that the danger
Art. 51 says, however, that there must first be an perceived by State B was not imminent. State B
“armed attack” before a state can exercise its ought to have exhausted peaceful and pacific
inherent right of self-defense, and only until the methods of settlements instead of resorting to the
Security Council, to which the aggression should use of force.
be reported, shall have taken the necessary
measures to maintain international peace and Q: Who can declare war?
security. It was the United States that made the A: No one! The Constitution has withheld this
“armed attack” first, thus becoming the power from the government. What the
aggressor, not Iraq. Iraq is now not only Constitution allows is a declaration of a “State of
exercising its inherent right of self-defense as War”. Under Art. VI, Sec. 23(1) – “Congress, by a
recognized by the UN Charter. (Justice Isagani A. vote of 2/3 of both Houses, in joint session
Cruz, in an article entitled “A New World Order” assembled, voting separately, shall have the sole
written in his column “Separate Opinion” power to declare the existence of a state of war.
published in the March 30, 2003 issue of the This means that we are already under attack
Philippines Daily Inquirer)
Q: What are the effects when Congress declares
Q: Will the subsequent discovery of weapons of a state of war?
mass destruction in Iraq after its invasion by the A: 1. Art. VI, Sec. 23 – “In times of war…the
US justify the attack initiated by the latter? Congress may, by law, authorize the President,
A: Even if Iraq’s hidden arsenal is discovered – or for a limited period and subject to such
actually used – and the United States is justified restrictions as it may prescribe, to exercise
in its suspicions, that circumstance will not powers necessary and proper to carry out a
validate the procedure taken against Iraq. It is declared national policy. Unless sooner withdrawn
like searching a person without warrant and by resolution of the Congress, such powers shall
curing the irregularity with the discovery of cease upon the next adjournment thereof.”
prohibited drugs in his possession. The process
cannot be reversed. The warrant must first be 2. Art. VII, Sec. 18 – “The President shall be the
issued before the search and seizure can be Commander-in-Chief of all armed forces…and
made. whenever it becomes necessary, he may call out
such armed forces to prevent or suppress…
The American invasion was made without invasion…In case, invasion…when the public safety
permission from the Security Council as required requires it, he may, for a period not exceeding 60
by the UN Charter. Any subsequent discovery of days, suspend the privilege of the writ of habeas
the prohibited biological and chemical weapons corpus or place the Philippines or any part thereof
will not retroactively legalize that invasion, which under martial law…”
was, legally speaking, null and void ab initio.
(Justice Isagani A. Cruz, in an article entitled “A ☀ This is in line with the UN Charter, which
New World Order” written in his column also renounces war
“Separate Opinion” published in the March 30, ☀ As charter-member of the UN, our
2003 issue of the Philippines Daily Inquirer) Constitution also renounces war as an
instrument of national policy
Q: State B, relying on information gathered by
its intelligence community to the effect that its RIGHTS OF SOVEREIGNTY AND INDEPENDENCE
neighbor, State C, is planning an attack on its Intervention
nuclear plan and research institute, undertook It is “the dictatorial interference by a State in the
a “preventive” attack in certain bases on State internal affairs of another State, or in the
C located near the border of the two states. As relations between other States, which is either
a result, State C presented the incident to the forcible or backed by the threat of force.”
UN General Assembly but the latter referred it
to the UN Security Council as a matter, which Intervention is Different from “Intercession”
disturbs or threatens “international peace and ☀ Intercession is allowed!
security”. State B argued that it was acting ☀ EX.: Diplomatic Protest, Tender of Advice
within the legal bounds of Article 51 of the UN
Charter and that it was a permitted use of force Generally Intervention is Prohibited (Drago
in self-defense and against armed attack. Is Doctrine)
State B responsible under International Law? ★ Prohibits intervention for the collection of
Did State B act within the bounds set forth in contractual debts, public or private
17 PUBLIC INTERNATIONAL LAW 2008
peace and security. Measures taken by - recognition is the act which gives to a
Members in the exercise of this right of self- political entity international status as a Notes:
defense shall be immediately reported to the State;
SC and shall not in any way affect the - it is only through recognition that a State
authority and responsibility of the SC under becomes an International Person and a
the present Charter to take at any time such subject of international law
action as it deems necessary in order to - thus, recognition is a legal matter—not a
maintain or restore international peace and matter of arbitrary will on the part of
security.” one State whether to recognize or refuse
to recognize another entity but that
NOTE: There is a limited definition of armed where certain conditions of fact exist, an
attacks – Nicargua v. United States entity may demand, and the State is
under legal duty to accord recognition
Nicaragua v. United States
Declaratory School
- recognition merely an act that declares
“195. In the case of individual self-defense, the
as a fact something that has hitherto
exercise of this right is subject to the State
been uncertain
concerned having been the victim of an armed
- it simply manifests the recognizing
attack. Reliance on collective self-defense of
State’s readiness to accept the normal
course does not remove the need for this. There
consequences of the fact of Statehood
appears now to be general agreement on the
- recognition is a political act, i.e., it is
nature of the acts which can be treated as
entirely a matter of policy and discretion
constituting armed attacks. In particular, it may
to give or refuse recognition, and that no
be considered to be agreed that an armed attack
entity possesses the power, as a matter
must be understood as including not merely action
of legal right, to demand recognition
by regular armed forces across an international
- there is no legal right to demand
border, but also 'the sending by or on behalf of a
recognition
State of armed bands, groups, irregulars or
- followed by most nations
mercenaries, which carry out acts of armed force
against another State of such gravity as to amount
to' (inter alia) an actual armed attack conducted ★ recognition of a State has now been
by regular forces, 'or its substantial involvement substituted to a large extent by the act
therein'. This description, contained in Article 3, of admission to the United Nations
paragraph (g), of the Definition of Aggression ★ it is the “assurance given to a new State
annexed to General Assembly resolution 3314 that it will be permitted to hold its place
(XXIX), may be taken to reflect customary and rank in the character of an
international law. The Court sees no reason to independent political organism in the
deny that, in customary law, the prohibition of society of nations”
armed attacks may apply to the sending by a
State of armed bands to the territory of another
State, if such an operation, because of its scale Q: Explain, using example, the Declaratory
and effects, would have been classified as an Theory of Recognition Principle. (1991 Bar)
armed attack rather than as a mere frontier A: The declaratory theory of recognition is a
incident had it been carried out by regular armed theory according to which recognition of a state is
forces. But the Court does not believe that the merely an acknowledgment of the fact of its
concept of 'armed attack' includes not only acts by existence. In other words, the recognized state
armed bands where such acts occur on a already exists and can exist even without such
significant scale but also assistance to rebels in recognition. For example, when other countries
the form of the provision of weapons or logistical recognize Bangladesh, Bangladesh already existed
or other support. Such assistance may be regarded as a state even without such recognition.
as a threat or use of force, or amount to
intervention in the internal or external affairs of Q: Distinguish briefly but clearly between the
other States.” constitutive theory and the declaratory theory
concerning recognition of states. (2004 Bar)
RECOGNITION A: The constitutive theory is the minority view
3 LEVELS which holds that recognition is the last element
A. Recognition of State that converts or constitutes the entity being
B. Recognition of Government recognized into an international person; while the
C. Recognition of Belligerency declaratory theory is the majority view that
recognition affirms the pre-existing fact that the
RECOGNITION OF STATE entity being recognized already possesses the
2 Schools of Thought status of an international person. In the former
Constitutive School recognition is regarded as mandatory and legal
and may be demanded as a matter of right by any
19 PUBLIC INTERNATIONAL LAW 2008
entity that can establish its possession of the four Estrada Doctrine
essential elements of a state; while the latter ☀ a reaction to the Tobar/Wilson Doctrine; Notes:
recognition is highly political and discretionary. formulated by Mexican Foreign Minister
Genaro Estrada
☀ disclaims right of foreign states to rule
upon legitimacy of a government of a
foreign State
☀ a policy of never issuing any declaration
RECOGNITION OF GOVERNMENT giving recognition to governments –
instead, it simply accepts whatever
Recognition of Recognition of government is in effective control
Government State without raising the issue of recognition
As to Scope Does not Includes
necessarily recognition or Q: Distinguish briefly but clearly between the
signify that government – Wilson doctrine and the Estrada doctrine
recognition of a government an regarding recognition of governments. (2004
State – to essential Bar)
government may element of a A: In the Wilson or Tobar doctrine, a government
not be State established by means revolution, civil war, coup
independent d’ etat or other forms of internal violence will not
As to Revocable Generally, be recognized until the freely elected
Revocabilit irrevocable representatives of the people have organized a
y constitutional government, while in the Estrada
doctrine any diplomatic representatives in a
Q: Distinguish recognition of State from country where an upheaval has taken place will
recognition of Government. (1975 Bar) deal or not deal with whatever government is in
A: (1) Recognition of state carries with it the control therein at the time and either action shall
recognition of government since the former not be taken as a judgment on the legitimacy of
implies that a state recognized has all the the said government.
essential requisites of a state at he time
recognition is extended. Kinds of Recognition
Recognition De Jure Recognition
(2) Once recognition of state is accorded, it is De Facto
generally irrevocable. Recognition of As to Relatively Provisional,
government, on the other hand, may be withheld Duration permanent
from a succeeding government brought about by As to Brings about full Limited to
violent or unconstitutional means. Effect on diplomatic certain
Diplomatic relations/intercourse juridical
Criteria for Recognition Relations relations;
1. Objective Test – for instance,
★ government should be EFFECTIVE and it does not
STABLE bring about
★ government is in possession of State diplomatic
machinery immunities
★ there is little resistance to its authority As to Vests title to Does not
Effect on recognized vest such
2. Subjective Test – Properties government in title
★ WILLINGNESS and ABILITY Abroad properties abroad
★ the government is willing and able to
discharge its international obligations Recognition De Jure
★ 2 Doctrines ★ Given to a government that satisfies both the
objective and subjective criteria
Tobar or Wilson Doctrine
☀ suggested by Foreign Minister Tobar Recognition De Facto
(Ecuador); reiterated by President ★ Given to governments that have not fully
Woodrow Wilson (US) satisfied objective and subjective criteria
☀ recognition is withheld from governments ★ EX.: While wielding effective power, it might
established by revolutionary means – have not yet acquired sufficient stability
revolution, civil war, coup d’etat, other
forms of internal violence, UNTIL, freely Consequences of Recognition of Government
elected representatives of the people 1. The recognized government or State acquires
have organized a constitutional the capacity to enter into diplomatic
government relations with recognizing States and to make
treaties with them
20 PUBLIC INTERNATIONAL LAW 2008
★ more or less permanent occupation 3. From the point of view of 3 rd States, the
★ legitimate government must use superior effect of recognition of belligerency is to put Notes:
military force to dislodge the rebels them under obligation to observe strict
neutrality and abide by the consequences
3. seriousness of the struggle, which must be so arising from that position.
widespread thereby leaving no doubt as to ★ must observe Laws of Neutrality
the outcome; and ★ EX.:
★ must be so widespread, leaving no doubt 1. must abstain from taking part in the
as to the outcome hostilities;
★ Q: Has the CPP/NPA and MILF complied 2. most acquiesce to restrictions
with these conditions? imposed by the rebels, such as visit
A: NO! BUT, there are some indications and search of its merchant ships
they are striving to meet the conditions. 4. Rebels are enemy combatants and accorded
They executed common criminals, after a the rights of prisoners of war. and
trial. It is like saying they have a ★ essentially, this means that there are 2
government competing governments in 1 country
5. On the side of the rebels, the recognition of
Note: The maintenance of peace and order, and belligerency puts them under responsibility to
administration of justice, are constituent 3rd States and to the legitimate government
functions of the government for all their acts which do not conform to the
laws and customs of war.
★ Camp Abu-Bakr—MILF almost had control
of a substantial portion of territory FORMS OF RECOGNITION
★ government had to use all its military 1. Express
might and divert its budget 2. Implied
★ CPP/NPA sends message that they are
observing the Laws of War EX.; Proclamation by the legitimate
★ Captured soliders are announced as government of a blockade of ports held by
POWs; had Red Cross representatives the rebels
4. willingness on the part of the rebels to ★ Done by Lincoln during the American Civil
observe the rules and customs of war. War
★ Q: What about peace talks?
Q: Explain, using example, recognition of A: NOT implied recognition. But,
belligerency. (1991 Bar) circumstances may be such as to become
A: Recognition of belligerency is the formal an implied recognition
acknowledgment by a third party of the existence EX.: Holding peach talks in a foreign
of a state of war between the central government country. Rebels call the foreign country
and a portion of that state. Belligerency exists a “neutral state”. If a mere insurgency,
when a sizable portion of the territory of a state it is a purely internal matter – no need
is under the effective control of an insurgent for talks abroad
community which is seeking to establish a
separate government and the insurgents are in de
facto control of a portion of the territory and TERRITORY OF STATES
population, have a political organization, and are Territory Defined
able to maintain such control and conduct Characteristics of Territory
themselves according to the laws of war. For Modes of Acquisition of Territory
example, Great Britain recognized a state of (1) Dereliction/Abandonment
belligerency in the United States during the Civil (2) Cession
War. (3) Conquest/Subjugation
(4) Prescription
Consequences of Recognition of Belligerents (5) Erosion
1. Before recognition as such, it is the (6) Revolution
legitimate government that is responsible for (7) Natural Causes
the acts of the rebels affecting foreign COMPONENTS OF TERRITORY
nationals and their properties. Rebel (1) Territorial Domain
government is responsible for the acts of the (2) Maritime and Fluvial Domain
rebels affecting foreign nationals and a. Territorial Sea
properties; b. Contiguous Zone
2. Laws and customs of war in conducting the c. Exclusive Economic Zone (EEZ)
hostilities must be observed; d. Continental Shelf
★ EX.: cannot execute captured rebels, e. High Seas
considered as POWs (3) Aerial Domain
a. Air Space
22 PUBLIC INTERNATIONAL LAW 2008
up red corrals found near Batanes. By Distinguish briefly but clearly between the
International Convention certain corals are territorial sea and the internal waters of the Notes:
protected species. Just before the vessel Philippines. (2004 Bar)
reached the high seas, the Coast Guard patrol Territorial water is defined by historic right or
intercepted the vessel and seized its cargo treaty limits while internal water is defined by
including tuna. The master of the vessel and the the archipelago doctrine. The territorial waters,
owner of the cargo protested, claiming the as defined in the Convention on the Law of the
rights of transit passage and innocent passage, Sea, has a uniform breadth of 12 miles measured
and sought recovery of the cargo and the from the lower water mark of the coast; while the
release of the ship. Is the claim meritorious or outermost points of our archipelago which are
not? Reason briefly. (2004 Bar) connected with baselines and all waters
A: The claim of the master of the vessel and the comprised therein are regarded as internal
owner of the cargo is not meritorious. Although waters.
their claim of transit passage and innocent
passage through the Balintang Channel is tenable 2. Contiguous Zone
under the 1982 Convention on the Law of the Sea, ★ zone adjacent to the territorial sea, over
the fact that they attached special hooks and nets which the coastal State may exercise such
to their vessel which dragged up red corrals is control as is necessary to:
reprehensible. The Balintang Channel is Prevent infringement of its customs,
considered part of our internal waters and thus is fiscal, immigration or sanitary laws
within the absolute jurisdiction of the Philippine within its territory or territorial sea;
government. Being so, no foreign vessel, Punish such infringement
merchant or otherwise, could exploit or explore ☀ extends to a maximum of 24 nautical miles
any of our natural resources in any manner of from the baseline from which the territorial
doing so without the consent of our government. sea is measured.
the ship, the penal or disciplinary proceedings ★ the air space above the high seas is open to
may be instituted only before State of which such all aircraft, just as the high seas is accessible Notes:
person is a national. For this purpose, no arrest to ships of all States
or detention of the ship, even as a measure of - the State whose aerial space is violated
navigation shall be ordered by the authorities can take measures to protect itself, but
other than those of the flag state. it does not mean that States have an
unlimited right to attack the intruding
Freedom of Navigation aircraft (intruding aircraft can be
the right to sail ships on the seas which is open to ordered either to leave the State’s air
all States and land-locked countries space or to land)
General Rule: vessels sailing on the high seas are Q: What are the 5 air freedoms?
subject only to international law and the laws of A:
the flag state (a) overflight without landing;
(b) landing for non-traffic purposes;
Exceptions: a) foreign merchant ships (c) put down traffic from state to airline;
violating the laws of the coastal State; b) (d) embark traffic destined for state of
pirate ships; c) slave trade ships; d) any ship aircraft; and
engaged in unauthorized broadcasting; and e) (e) embark traffic or put down traffic to or
ships without nationality, or flying a false flag from a third state
or refusing to show its flag.
2. Outer Space (res commones)
Flag State ★ the space beyond the airspace surrounding
the State whose nationality (ship’s registration) the earth or beyond the national airspace,
the ship possesses, for it is nationality which gives which is completely beyond the sovereignty
the right to fly a country’s flag of any State
★ the moon and the other celestial bodies form
Flags of Convenience – part of the outer space (Moon Treaty of 1979)
registration of any ship in return for a payment ★ thus, it is not subject to national
fee appropriation
★ free for all exploration and use by all States
Q: Distinguish briefly but clearly between the and cannot be annexed by any State
flag state and the flag of convenience. (2004 ★ governed by a regime similar to that of the
Bar) high seas
A: Flag state means a ship has the nationality of
the flag state it flies, but there must be a genuine Treaty on Principles Governing the Activities of
link between the state and the ship. (Article 91 of States in the Exploration and Use of Outer
the Convention of the Law of the Sea.) Flag of Space (Outer Space Treaty)
convenience refers to a state with which a vessel ☀ Outer Space is free for exploration and use by
is registered for various reasons such as low or States
non-existent taxation or low operating costs ☀ Cannot be annexed by any State
although the ship has no genuine link with that ☀ Its use and exploration must be carried out
state. (Harris, Cases and Materilas on for the benefit of all countries and in
International Law, 5th ed., 1998, p. 425.) accordance with international law
☀ Celestial bodies shall be used exclusively for
AERIAL DOMAIN peaceful purposes
★ the airspace above the territorial and ☀ Nuclear weapons and weapons of mass
maritime domains of the State, to the limits destruction shall not be placed in orbit
of the atmosphere around the earth
★ does not include the outer space
Q: What is the boundary between the air space
1. Air Space and the outer space?
★ the air space above the State’s terrestrial and A: No accepted answer yet! There are different
maritime territory opinions:
★ “…Every State has complete and exclusive 1. That it should be near the lowest altitude
sovereignty over the air space above its (perigee) at which artificial earth satellites
territory” can remain in orbit without being destroyed
★ Convention on International Civil Aviation by friction with the air around 190 km from
–“Territory” – includes terrestrial and earth’s surface
maritime territory
★ thus, includes air space above territorial sea 2. Theoretical limit of air flights is 90 km above
★ NOTE: NO right of innocent passage! the earth
3. Functional Approach
29 PUBLIC INTERNATIONAL LAW 2008
These members are not eligible for immediate re- Q: Loolapalooza conducted illegal invasion and Notes:
election. conquest against Moooxaxa. The UN Security
Council called for enforcement action against
Chairmanship of the SC is rotated monthly on the Loolapalooza. Does enforcement action include
basis of the English alphabetical order of the sending of fighting troops?
names of the members. A: NO. Compliance with the resolution calling for
enforcement action does not necessarily call for
SC Sessions the sending of fighting troops. There must be a
The SC is required to function continuously and to special agreement with the SC before sending of
hold itself in readiness in case of threat to or fighting troops may be had and such agreement
actual breach of international peace. For this shall govern the numbers and types of forces,
purpose, all members should be represented at all their degree of readiness and general locations,
times at the seat of the Organization. and the nature of the facilities and assistance to
be supplied by UN members.
SC Voting Rules
Each member of the SC has 1 vote, but distinction International Court of Justice
is made between the permanent and the non-
permanent members in the decision of substantive International Court of Justice
questions. Composition
Qualifications
Yalta Voting Formula Jurisdiction
a. Procedural matters – 9 votes of any of SC Functions of International Court of Justice
members Procedure
b. Substantive matters – 9 votes including 5
permanent votes. ¯°º°¯
No member, permanent or not, is allowed to vote International Court of Justice
on questions concerning the pacific settlement of The International Court of Justice is the principal
a dispute to which it is a party. judicial organ of the United Nations. Its seat is at
the Peace Palace in The Hague (Netherlands). It
Rule of Great-Power Unanimity: a negative vote began work in 1946, when it replaced the
by any permanent member on a non-procedural Permanent Court of International Justice which
matter, often referred to as “veto”, means had functioned in the Peace Palace since 1922. It
rejection of the draft resolution or proposal, even operates under a Statute largely similar to that of
if it has received 9 affirmative votes. its predecessor, which is an integral part
- Abstention or absence of a member is not of the Charter of the United Nations.
regarded as veto
ICJ Composition and Qualifications
Procedural and Substantive Matters The Court is composed of 15 judges elected to
Distinguished nine-year terms of office by the United Nations
Procedural matters include: General Assembly and Security Council sitting
a. questions relating to the organization and independently of each other. It may not include
meetings of the Council; more than one judge of any nationality. Elections
b. the establishment of subsidiary organs; and are held every three years for one-third of the
c. the participation of states parties to a dispute seats, and retiring judges may be re-elected. The
in the discussion of the SC. Members of the Court do not represent their
governments but are independent magistrates.
Substantial matters include those that may
require the SC under its responsibility of QUALIFICIATIONS OF JUDGES
maintaining or restoring world peace to invoke 1. They must be of high moral character;
measures of enforcement. 2. Possess the qualifications required in
their respective countries for appointment to
What is the role of a Member of the UN but not the highest judicial office or are jurists of
a member of the Security Council? recognized competence in international law;
Although not a member of the SC, it may and
participate (without vote) in the discussion of any 3. As much as possible, they must represent
question before the Council whenever the latter the main forms of civilization and the
feels that the interests of that member are principal legal systems of the world.
specially affected. Such member is likewise to
be invited by the Council to participate (without When the Court does not include a judge
vote)in the discussion of any dispute to which the possessing the nationality of a State party to a
Member is a party.
33 PUBLIC INTERNATIONAL LAW 2008
case, that State may appoint a person to sit as a during the judicial vacations the dates and
judge ad hoc for the purpose of the case. duration of which it shall fix. Notes:
ICJ Jurisdiction Procedure in the ICJ
The Court is competent to entertain a dispute The procedure followed by the Court in
only if the States concerned have accepted its contentious cases is defined in its Statute, and in
jurisdiction in one or more of the following ways: the Rules of Court adopted by it under the
a. by the conclusion between them of a special Statute. The latest version of the Rules dates
agreement to submit the dispute to the from 5 December 2000. The proceedings include
Court; a written phase, in which the parties file and
b. by virtue of a jurisdictional clause, i.e., exchange pleadings, and an oral phase consisting
typically, when they are parties to a treaty of public hearings at which agents and counsel
containing a provision whereby, in the event address the Court. As the Court has two official
of a disagreement over its interpretation or languages (English and French) everything written
application, one of them may refer the or said in one language is translated into the
dispute to the Court. Several hundred treaties other.
or conventions contain a clause to such
effect; or After the oral proceedings the Court deliberates
c. through the reciprocal effect of declarations in camera and then delivers its judgment at a
made by them under the Statute whereby public sitting. The judgment is final and without
each has accepted the jurisdiction of appeal. Should one of the States involved fail to
the Court as compulsory in the event of a comply with it, the other party may have recourse
dispute with another State having made a to the Security Council.
similar declaration. The declarations T
of 65 States are at present in force, a number The Court discharges its duties as a full court but,
of them having been made subject to the at the request of the parties, it may also establish
exclusion of certain categories of dispute. a special chamber. A Chamber of Summary
Procedure is elected every year by the Court in
In cases of doubt as to whether the Court has accordance with its Statute. In July 1993 the
jurisdiction, it is the Court itself which decides. Court also established a seven-member Chamber
to deal with any environmental cases falling
Term of Office within its jurisdiction
Term of 9 years, staggered at three year year
intervals by dividing the judges first elected into ICJ Voting Rules
three equal groups and assigning them by lottery All questions before the Court are decided by a
terms of three, six and nine years respectively. majority of the judges present, the quorum being
Immediate re-election is allowed. The President nine when it is sitting en banc. In case of tie, the
and the Vice President elected by the Court for President or his substitute shall have a casting
three years, may also be re-elected. Terms of vote.
office of 5 of the 15 members shall expire at the
end of every 3 years. Rule for Inhibition of Judges
No judge may participate in the decision of a case
How members of ICJ are chosen in which he has previously taken part as agent,
1. Nomination made by national groups in counsel or advocate for one of the parties, or as a
accordance with the Hague Conventions of member of a national or international court, or of
1907. No group shall nominate more than a commission of injury, or in any other capacity.
four persons and not more than two of whom
shall be of their own nationality. Functions of ICJ
2. Candidates obtaining an absolute The principal functions of the Court are:
majority in the GA and SC are considered 2. to decide contentious case; and
elected. In the event that more than 1 3. to render advisory opinions.
national of the same state obtain the
requisite majorities in both bodies, only the Who may file contentious cases?
eldest is chosen. Only states can file contentious cases and both
3. In cases when membership is not must agree to the court’s jurisdiction. Only States
completed by the regular elections, a joint may apply to and appear before the Court. The
conference shall be convened. If this still Member States of the United Nations (at present
fails, the judges elected shall fill the numbering 191) are so entitled.
remaining vacancies. Article 34(1): Only states may be parties
in cases before the Court.
ICJ Sessions 2. Article 36(1): The jurisdiction of the
The Court shall remain permanently in session at Court comprises all cases which the parties
the Hague or elsewhere as it may decide, except refer to it and all matters specially provided
34 PUBLIC INTERNATIONAL LAW 2008
for in the Charter of the UN or in treaties and Q: The State of Nova, controlled by an
conventions in force. authoritarian government, had unfriendly Notes:
relations with its neighboring state, America;
Advisory Opinions Bresia, another neighboring state, had been
The advisory procedure of the Court is open solely shipping arms and ammunitions to Nova for use
to international organizations. The only bodies at in attacking America. To forestall am attack,
present authorized to request advisory opinions of America placed floating mines on the territorial
the Court are five organs of the United Nations and waters surrounding Nova. America supported a
16 specialized agencies of the United Nations group of rebels organized to overthrow the
family. government of Nova and to replace it with a
friendly government. Nova decided to file a
On receiving a request, the Court decides which case against America in the International Court
States and organizations might provide useful of Justice.
information and gives them an opportunity of 1) What grounds may Nova’s cause of
presenting written or oral statements. The Court's action against America be based?
advisory procedure is otherwise modelled on that 2) On what grounds may America move to
for contentious proceedings, and the sources of dismiss the case with the ICJ?
applicable law are the same. In principle the 3) Decide the case. (1994 Bar)
Court's advisory opinions are consultative in
character and are therefore not binding as such on A: 1) If Nova and America are members of the UN,
the requesting bodies. Certain instruments or Nova can premise its cause of action on a
regulations can, however, provide in advance that violation of Art. 2(4) of the UN Charter, which
the advisory opinion shall be binding. requires members to refrain from threat or use of
force against the territorial integrity of political
independence of any state. If either or both
Only organizations can request advisory America and Nova are not members of the UN,
opinions [Article 65(1)]: The Court may give Nova may premise its cause of action of violation
an advisory opinion on any legal question at of the non-use of force principle in customary
the request of whatever body may be international law which exist parallel as to Art.
authorized by or in accordance with the 2(4) of the UN Charter.
Charter of the UN to make such a request.
In the case concerning the Military and
There is no rule of stare decisis. Parliamentary activities in and against Nicaragua
(1986 ICJ Report 14), the International Court of
Q: A, a citizen of State X, was arrested and Justice considered the planting mines by one
detained for several years without charges or state within the territorial waters of another as a
trial. He brings his case to the courts of State violation of Art. 2(4) of the UN Charter. If the
X, but to no avail. He desires to seek redress support provided by America to rebels of Nova
from any international forum. He goes to you goes beyond the mere giving of monetary or
as counsel to file his case with the International psychological support but consist in the provision
Court of Justice. Will the action prosper? of arms and training, the acts of America can be
(1978 Bar) considered as indirect aggression amount to
A: No! Only States may be parties in contentious another violation of Art. 2(4).
cases before the International Court of Justice. In
fact, only States which are parties to the statute In addition, even if the provision of support is not
of the ICJ and other states on conditions to be enough to consider the act a violation of the non-
laid down by the Security Council may be such use of force principle, this is a violation of the
parties. Therefore, a private individual like A principle of non-intervention in customary
cannot bring an action before it. international law.
Q: May the United States be sued in our courts for Aggression is the use of armed force by a state
the value of private properties requisitioned by its against the sovereignty or territorial integrity or
Army during the last World War, as well as Japan political independence of another state or in any
for the “Mickey Mouse” money in payment for other manner inconsistence with the UN Charter.
private properties, which have not been
redeemed until now? May the suit be brought to 2) By virtue of the principle of sovereign
the ICJ? (1979 Bar) immunity, no sovereign state can be made a party
A: No! Even foreign states are entitled to the to a proceeding before the ICJ unless it has given
doctrine of state immunity in the local state. The its consent. If America has not accepted the
suit may not be brought before the ICJ without jurisdiction of the ICJ, it can invoke the defense
the consent of the United States as jurisdiction of of lack of jurisdiction. Even if it has accepted the
the ICJ in contentious cases is based upon the jurisdiction of the ICJ but the acceptance limited
consent of the parties. and the limitation applies to the case, it may
35 PUBLIC INTERNATIONAL LAW 2008
of the instruments of ratification. The treaty may ratification. It should be underscored that the
then be submitted for registration and publication signing of the treaty and the ratification are two Notes:
under the U.N. Charter, although this step is not separate and distinct steps in the treaty-making
essential to the validity of the agreement as process. As earlier discussed, the signature is
between the parties. primarily intended as a means of authenticating
the instrument and as a symbol of the good faith
Negotiation may be undertaken directly by the of the parties. It is usually performed by the
head of state but he now usually assigns this task state’s authorized representative in the
to his authorized representatives. These diplomatic mission. Ratification, on the other
representatives are provided with credentials hand, is the formal act by which a state confirms
known as full powers, which they exhibit to the and accepts the provisions of a treaty concluded
other negotiators at the start of the formal by its representative. It is generally held to be an
discussions. It is standard practice for one of the executive act, undertaken by the head of the
parties to submit a draft of the proposed treaty state or of the government (Bayan vs. Zamora,
which, together with the counter-proposals, supra note 15). Thus, Executive Order No. 459
becomes the basis of the subsequent issued by President Fidel V. Ramos on November
negotiations. The negotiations may be brief or 25, 1997 provides the guidelines in the
protracted, depending on the issues involved, and negotiation of international agreements and its
may even “collapse” in case the parties are ratification. It mandates that after the treaty has
unable to come to an agreement on the points been signed by the Philippine representative, the
under consideration. same shall be transmitted to the Department of
Foreign Affairs. The Department of Foreign
Affairs shall then prepare the ratification papers
If and when the negotiators finally decide on the and forward the signed copy of the treaty to the
terms of the treaty, the same is opened for President for ratification. After the President
signature. This step is primarily intended as a has ratified the treaty, the Department of Foreign
means of authenticating the instrument and for Affairs shall submit the same to the Senate for
the purpose of symbolizing the good faith of the concurrence. Upon receipt of the concurrence of
parties; but, significantly, it does not indicate the Senate, the Department of Foreign Affairs
the final consent of the state in cases where shall comply with the provisions of the treaty to
ratification of the treaty is required. The render it effective. xxx
document is ordinarily signed in accordance with
the alternat, that is, each of the several
negotiators is allowed to sign first on the copy Xxx
which he will bring home to his own state.
Petitioners’ submission that the Philippines is
Ratification, which is the next step, is the formal bound under treaty law and international law to
act by which a state confirms and accepts the ratify the treaty which it has signed is without
provisions of a treaty concluded by its basis. The signature does not signify the final
representatives. The purpose of ratification is consent of the state to the treaty. It is the
to enable the contracting states to examine the ratification that binds the state to the provisions
treaty more closely and to give them an thereof. In fact, the Rome Statute itself requires
opportunity to refuse to be bound by it should that the signature of the representatives of the
they find it inimical to their interests. It is for states be subject to ratification, acceptance or
this reason that most treaties are made subject approval of the signatory states. Ratification is
to the scrutiny and consent of a department of the act by which the provisions of a treaty are
the government other than that which formally confirmed and approved by a State. By
negotiated them. ratifying a treaty signed in its behalf, a state
expresses its willingness to be bound by the
provisions of such treaty. After the treaty is
xxx signed by the state’s representative, the
President, being accountable to the people, is
The last step in the treaty-making process is the burdened with the responsibility and the duty to
exchange of the instruments of ratification, carefully study the contents of the treaty and
which usually also signifies the effectivity of the ensure that they are not inimical to the interest
treaty unless a different date has been agreed of the state and its people. Thus, the President
upon by the parties. Where ratification is has the discretion even after the signing of the
dispensed with and no effectivity clause is treaty by the Philippine representative whether or
embodied in the treaty, the instrument is deemed not to ratify the same. The Vienna Convention on
effective upon its signature [Cruz, International the Law of Treaties does not contemplate to
Law (1998 Ed.), pp. 172-174]. [emphasis supplied] defeat or even restrain this power of the head of
states. If that were so, the requirement of
Petitioners’ arguments equate the signing of the ratification of treaties would be pointless and
treaty by the Philippine representative with futile. It has been held that a state has no legal or
38 PUBLIC INTERNATIONAL LAW 2008
Q: A crime was committed in a private vessel authority and done animo furandi and in the spirit
registered in Japan by a Filipino against an and intention of universal hostility. Notes:
Englishman while the vessel is anchored in a
port of State A. Where can he be tried? (1979 Piracy is a crime against all mankind.
Bar) Accordingly, it may be punished in the competent
A: Under both the English and French rules, the tribunal if any country where the offender may be
crime will be tried by the local state A, if serious found or into which he may be carried.
enough as to compromise the peace of its port;
otherwise by the flag state, Japan if it involves The jurisdiction on piracy unlike all other crimes
only the members of the crew and is of such a has no territorial limits. As it is against all, all so
petty nature as not to disturb the peace of the may punish it. Nor does it matter that the crime
local state. was committed within the jurisdictional 3-mile
limit of a foreign state for those limits, though
B. Nationality Principle neutral to war, are not neutral to crimes.
☀ a State may punish offenses committed
by its nationals anywhere in the world. DOCTRINE OF SOVEREIGN IMMUNITY
☀ vest jurisdiction in state of offender Under this doctrine, a state enjoys immunity from
☀ Art. 15, NCC; tax laws
the exercise of jurisdiction by another state. The
courts of one state may not assume jurisdiction
C. Protective Principle
over another state.
☀ States claim extraterritorial criminal
jurisdiction to punish crimes committed
abroad which are prejudicial to their Restrictive Application of the Doctrine of State
national security or vital interests, even Immunity
where the offenses are perpetrated by Q: The Republic of Balau opened and operated
non-nationals. in Manila an office engaged in trading of Balau
☀ vest jurisdiction in state whose national products with the Philippine products. In one
interests is injured or national security transaction, the local buyer complained that the
compromised Balau goods delivered to him were substandard
☀ counterfeiting, treason, espionage and he sued the Republic of Balau before the
RTC of Pasig for damages. (1996 Bar)
Q: Explain the Protective Personality Principle. a) How can the Republic of Balau invoke its
(1991 Bar) sovereign immunity? Explain.
A: Protective Personality Principle is the b) Will such defense of sovereign immunity
principle on which the State exercise jurisdiction prosper? Explain.
over the acts of an alien even if committed
outside its territory, if such acts are adverse to A: a) By filing a motion to dismiss in accordance
the interest of the national state. with Section 1 (a) Rule 16 of the Rules of Court on
the ground that the court has no jurisdiction over
D. Universality Principle its person.
☀ A State has extraterritorial jurisdiction
over all crimes regardless of where they According to the case of Holy See vs. Rosario, in
are committed or who committed them, Public International Law, when a state wishes to
whether nationals or non-nationals. This plead sovereign immunity in a foreign court, it
is, however, generally considered as requests the Foreign office of the state where it is
forbidden. being sued to convey to the court that it is
☀ vest jurisdiction in state which has entitled to immunity. In the Philippines, the
custody of offender of universal crimes practice is for the foreign government to first
☀ piracy, genocide secure an executive endorsement of its claim of
immunity. In some case, the defense of sovereign
Q: A Filipino owned construction company with immunity is submitted directly to the local court
principal office in Manila leased an aircraft by the foreign state through counsel by filing a
registered in England to ferry construction motion to dismiss on the ground that the court has
workers to the Middle East. While on a flight to no jurisdiction over its person.
Saudi Arabia with Filipino crew provided by the
lessee, the aircraft was highjacked by drug b) No. The sale of Balau products as a contract
traffickers. The hijackers were captured in involves a commercial activity. As held by the
Damaseus and sent to the Philippines for trial. Supreme Court in the case of USA vs. Ruiz and USA
Do courts of Manila have jurisdiction over the vs. Guinto, it was stated that a foreign state
case? (1981 Bar) couldn’t invoke immunity from suit if it enters
A: Yes. Hijacking is actually piracy, defined in into a commercial contract. The Philippines
People vs. Lol-lo, 43 Phil 19 as robbery or forcible adheres to restrictive Sovereign Immunity.
depredation in the high seas without lawful
40 PUBLIC INTERNATIONAL LAW 2008
In February 1990, the Ministry of the Army, Consent to the exercise of jurisdiction of a foreign
Republic of Indonesia, invited for a bid for the court does not involve waiver of the separate Notes:
supply of 500,000 pairs of combat boots for the immunity from execution. (You can look but you
use of the Indonesian Army. The Marikina Shoe can’t touch.)
Corporation, a Philippine Corporation, which
has a branch office and with no assets in Thus as held in the case of Dexter vs. Carpenters,
Indonesia, submitted a bid to supply 500,000 P2d 705, it was held that consent to be sued does
pairs of combat boots at $30 per pair delivered not give consent to the attachment of the
in Jakarta on or before October 1990. The property of sovereign government.
contract was awarded by the Ministry of the
Army to Marikina Shoe Corporation and was Exemptions from Jurisdiction
signed by the parties in Jakarta. Marikina Shoe 1. Doctrine of State Immunity;
Expo was able to deliver only 200,000 pairs of 2. Act of State Doctrine – court of one state will
combat boots in Jakarta by October 30, 1990 not sit in judgment over acts of government
and received payment for 100,000 pairs or a of another state done in its territory.
total of $3,000,000. The Ministry of the Army 3. Diplomatic Immunity;
promised to pay for the other 100,000 pairs 4. Immunity of UN Specialized agencies, other
already delivered as soon as the remaining International Organizations, and its Officers;
300,000 pairs of combat boots are delivered, at 5. Foreign Merchant vessels exercising the right
which time the said 300,000 pairs will also be of innocent passage;
paid for. 6. Foreign armies passing through or stationed in
the territory with the permission of the State;
Q: Marikina Shoe Corporation failed to deliver 7. Warships and other public vessels of another
any more combat boots. On June 1, 1991, the State operated for non-commercial purposes.
Republic of Indonesia filed an action before the
RTC of Pasig, to compel Marikina Shoe ACT OF STATE DOCTRINE
Corporation to perform the balance of its Q: What is an Act of State?
obligation under the contract and for damages. A: An act of state is an act done by the sovereign
In its Answer, Marikina Shoe Corporation sets up power of a country, or by its delegate, within the
a counterclaim for $3,000,000 representing the limits of the power vested in him. An act of State
payment for the 100,000 pairs of combat boots cannot be questioned or made the subject of legal
already delivered but unpaid. Indonesia moved proceedings in court of law. Courts cannot
to dismiss the counterclaim asserting that it is pass judgment on acts of State done within its
entitled to sovereign immunity from suit. The territorial jurisdiction. It is different from
trial court denied the motion to dismiss and Sovereign Immunity from Suit. Here, you cannot
issued two writs of garnishment upon sue a sovereign State in the courts of another
Indonesian Government funds deposited in the State.
PNB and BPI. Indonesia went to the Court of
Appeals on a petition for certiorari under Rule Q: Why?
65 of the Rules of Court. How would the Court A: Would unduly vex the peace of nations based
of Appeals decide the case? (1991 Bar) on the doctrine of sovereign equality of States –
A: The Court of Appeals should dismiss the “Par in parem non habet imperium”
petition in so far as it seeks to annul the order
denying the motion of the Government of Q: What is the meaning or concept of “Act of
Indonesia to dismiss the counterclaim. The State” Doctrine? (1977 Bar)
counterclaim in this case is a compulsory A: The Act of State Doctrine states that every
counterclaim since it arises from the same sovereign state is bound to respect the
contract involved in the complaint. As such, it independence of other states and the court of one
must be set up, otherwise, it will be barred. country will not sit in judgment to the acts of the
Above all, as held in Froilan vs. Pan Oriental foreign government done within its territory.
Shipping Co. 95 Phil 905, by filing a complaint, Redress of grievances by reason of such acts must
the state of Indonesia waived its immunity from be obtained through the means open to be availed
suit. It is not right that it can sue in the courts of of by sovereign powers as between themselves.
the Philippines if in the first place it cannot be
sued. The defendant therefore acquires the right DIPLOMATIC IMMUNITY
to set up a compulsory counterclaim against it. THE RIGHT OF LEGATION
It is the right to send and receive diplomatic
However, The Court of Appeals should grant the missions. It is strictly not a right since no State
petition of the Indonesian Government insofar as can be compelled to enter into diplomatic
it sought to annul the garnishment of the funds of relations with another State. Diplomatic relations
Indonesia, which were deposited in the PNB and is established by mutual consent between two
BPI. States.
41 PUBLIC INTERNATIONAL LAW 2008
Q: Is the state obliged to maintain diplomatic Sometimes the state may appoint special
relations with other states? diplomatic agents charged with either political or Notes:
A: No, as the right of legation is purely ceremonial duties, such as the negotiation of a
consensual. If it wants to, a state may shut itself treaty or attendance at a state function like a
from the rest of the world, as Japan did until the coronation or a funeral.
close of the 19th century. However, a policy of
isolation would hinder the progress of a state Q: How are the regular diplomatic
since it would be denying itself of the many representatives classified?
benefits available from the international A:
community.
i. Ambassadors or nuncios accredited to
heads of states
Active right of legation – send diplomatic
ii. Envoys, ministers and internuncios
representatives accredited to heads of states
Passive right of legation – receive diplomatic
iii. Charges d’ affaires accredited to ministers
representatives for foreign affairs
Resident Missions The diplomatic corps consists of different
Classes of heads of missions [ A N E M I C ]
diplomatic representatives who have been
a. Ambassadors or nuncios accredited to Heads accredited to the local or receiving state. A doyen
of State and other heads of missions of
du corps or a dean, who is usually the member of
equivalent rank; the highest rank and the longest service to the
b. Envoys ministers and internuncios accredited
state, heads it.
to Heads of State;
c. Charges d’affaires accredited to Ministers for
In Catholic countries, the dean is the Papal
Foreign Affairs. Nuncio.
Functions of Diplomatic Missions Q: How are diplomatic representatives chosen?
1. representing sending state in receiving state;
A: The appointment of diplomats is not merely a
2. protecting in receiving state interests of matter of municipal law for the receiving state is
sending state and its nationals;
not obliged to accept a representative who is a
3. negotiating with government of receiving persona non grata to it. Indeed, there have been
state;
cases when duly accredited diplomatic
4. promoting friendly relations between sending representatives have been rejected, resulting in
and receiving states and developing their
strained relations between the sending and
economic, cultural and scientific relations; receiving state.
5. ascertaining by all lawful means conditions
and developments in receiving state and
reporting thereon to government of sending To avoid such awkward situation, most states now
state; and observe the practice of agreation, by means of
6. in some cases, representing friendly which inquiries are addressed to the receiving
governments at their request. state regarding a proposed diplomatic
representative of the sending state. It is only
Diplomatic Corps when the receiving state manifests its agreement
A body formed by all diplomatic envoys or consent that the diplomatic representative is
accredited to the same State. The Doyen or head appointed and formally accredited.
of this body is usually the Papal Nuncio, or the
oldest accredited ambassador or plenipotentiary. Q: What is agreation?
A: It is a practice of the states before appointing
Privileges and immunities a particular individual to be the chief of their
a. Personal inviolability; diplomatic mission in order to avoid possible
b. Inviolability of premises and archives; embarrassment. It consist of two acts:
c. Right of an official communication; i. The Inquiry, usually informal,
d. Exemption from local jurisdiction; addressed by the sending state to the
e. Exemption from subpoena as witness; receiving state regarding the acceptability of
f. Exemption from taxation an individual to be its chief of mission; and
ii. The agreement, also informal,
Q: Who are the usual agents of diplomatic by which the receiving state indicates to the
intercourse? sending state that such person, would be
A: The diplomatic relations of a state are usually acceptable.
conducted through:
i. The head of state; Letter of Credence (Letre d’ Creance)
ii. The foreign secretary or minister; and The document, which the envoy receives from his
iii. The members of the diplomatic service. government accrediting him to the foreign state
to which he is being sent. It designates his rank
42 PUBLIC INTERNATIONAL LAW 2008
and the general object of his mission and asks d) The archives and documents of
that he be received favorably and that full the mission shall be inviolable at any time Notes:
credence be given to what he says on behalf of his and wherever they may be.
state.
e) The receiving state shall permit
Letter Patent (Letre d’ Provision) and protect free communication on the part
The appointment of a consul is usually evidenced of the mission for all official purposes. In
by a commission, known sometimes as letter communicating with the government and
patent or letre d’ provision, issued by the other missions, and consulates of the sending
appointing authority of the sending state and state wherever situated, the mission may
transmitted to the receiving state through employ all appropriate means, including
diplomatic channels. diplomatic couriers and messages in code or
cipher. The official correspondence of the
Functions of diplomatic representatives mission shall be inviolable.
The functions of diplomatic mission consist inter
alia in: f) Subject to its laws and
a) Representing the sending state regulations concerning national security, the
in the receiving state. receiving state shall insure to all members of
b) Protecting in the receiving state the mission freedom of movement and travel
the interests of the sending state and its in its territory.
nationals.
c) Negotiating with the g) A diplomatic agent is not
government of the receiving state. obliged to give evidence as a witness.
d) Ascertainment through lawful
means of the conditions and developments in h) A diplomatic agent shall be
the receiving state and reporting thereon to exempt from all dues and taxes, personal or
the government of the sending state. real, national, regional, or municipal except
e) Promoting friendly relations in certain specified cases like the imposition
between the sending and receiving state and of indirect taxes.
developing their economic, cultural and
scientific relations. i) The mission and its head shall
f) In some cases, representing have the right to use the flag and emblem of
friendly governments at their request. the sending state on the premises of the
mission, including the residences of the head
Pointers on Diplomatic Immunities and of the mission and on his means of transport.
Privileges
The more important are the following:
Q: Who may waive the diplomatic immunity and
a) The person of a diplomatic privileges?
agent shall be inviolable and he shall not be
liable to any form of arrest or detention. The A: The waiver may be made expressly by the
sending state. It may also be done impliedly, as
receiving state shall treat him with due
respect and shall take all appropriate steps to when the person entitled to the immunity from
jurisdiction commences litigation in the local
prevent any attack on his person, freedom or
dignity. courts and thereby opens himself to any
counterclaim directly connected with the
b) A diplomatic agent shall enjoy principal claim.
immunity from the criminal, civil and However, waiver of immunity from jurisdiction
administrative jurisdiction of the receiving with regard to civil and administrative
state, except in certain cases as, for proceedings shall not be held to mean implied
example, when the civil action deals with waiver of the immunity with respect to the
property held by him in a private or execution of judgment, for which a separate
proprietary capacity. waiver shall be necessary.
state or, if already there, form the moment his A: (a) As a counsel of Abad, I shall argue that the
appointment is notified to its government, and contract is not a sovereign function and that the Notes:
lasts until he leaves, which must be within a stipulation that any suit arising under the contract
reasonable period following the termination of his shall be filed with the proper courts of the City of
mission. Manila is a waiver of the sovereign immunity from
suit of Italy. I shall also argue that the
With respect to his official acts, however, his ambassador does not enjoy diplomatic immunity,
immunity from the jurisdiction of the receiving because the suit relates to a commercial activity.
state continues indefinitely as these are the acts
attributed not to him but to the sending state. (b) The court should reject the defenses. Since
But this rule does not apply to his private acts, for the establishment of a diplomatic mission requires
which he may later be sued or prosecuted should the maintainance and upkeep of the embassy and
he return in a private capacity to the receiving the residence of the ambassador, Italy was acting
state or fail to leave it in due time after the end in pursuit of a sovereign activity when it entered
of his mission. into the contract. The provision in the contract
regarding the venue of lawsuits is not necessarily
Q: Who else besides the head of the mission are a wavier of sovereign immunity from suit. It
entitled to diplomatic immunities and should be interpreted to apply only where Italy
privileges? elects to sue in the Philippine courts or waives its
A: The diplomatic immunities and privileges are immunity by a subsequent act. The contract does
also enjoyed by the diplomatic suite or retinue, not involve a commercial activity of the
which consists of the official and non-official staff ambassador, because it is connected with his
of the mission. official functions. [Republic of Indonesia v.
Vinzon, 405 SCRA 126 (2003)]
The official staff is made up of the administrative
and technical personnel of the mission, including Q: A group of high-ranking officials and rank and
those performing clerical work, and the member file employees stationed in a foreign embassy in
of their respective families. The non-official staff Manila were arrested outside embassy grounds
is composed of the household help, such as the and detained at Camp Crame on suspicion that
domestic servants, butlers, and cooks and they were actively collaborating with
chauffeurs employed by the mission. “terrorists” out to overthrow or destabilize the
Philippine Government. The Foreign
As a rule, however, domestic servants enjoy Ambassador sought their immediate release,
immunities and privileges only to the extent claiming that the detained embassy officials and
admitted by the receiving state and insofar as employees enjoyed diplomatic immunity. If
they are connected with the performance of their invited to express your legal opinion on the
duties. matter, what advice would you give. (2003 Bar)
A: I shall advise that the high ranking officials and
Q: Italy, through its Ambassador, entered into a rank and file employees be released because of
contract with Abad for the maintenance and their diplomatic immunity. Article 29 of the
repair of specified equipment at its Embassy Vienna Convention on Diplomatic Relations
and Ambassador’s Residence, such as air provides:
conditioning units, generator sets, electrical
facilities, water heaters, and water motor “The person of a diplomatic agent shall be
pumps. It was stipulated that the agreement inviolable. He shall not be liable to any form of
shall be effective for a period of four years and arrest or detention.”
automatically renewed unless cancelled.
Further, it provided that any suit arising from Under Article 37 of the Vienna Convention on
the contract shall be filed with the proper Diplomatic Relations, members of the
courts in the City of Manila. administrative and technical staff of the
diplomatic mission, shall, if they are not nationals
Claiming that the Maintenance Contract was of or permanent residents in the receiving State,
unilaterally, baselessly and arbitrarily enjoy the privileges and immunities specified in
terminated, Abad sued the State of Italy and its Article 29.
Ambassador before a court in the City of
Manila. Among the defenses they raised were Under Article 9 of the Vienna Convention on
“sovereign immunity” and “diplomatic Diplomatic Relations, the remedy is to declare the
immunity”. (2005 Bar) high-ranking officials and rank and file employees
(a) As counsel of Abad, refute the defenses of personae non gratae and ask them to leave.
“sovereign immunity” and “diplomatic
immunity” raised by the State of Italy and Alternative A: Under the Vienna Convention on
its Ambassador. Diplomatic Relations, a diplomatic agent “shall
(b) At any rate, what should be the court’s not be liable to any form of arrest or detention
ruling on the said defenses?
44 PUBLIC INTERNATIONAL LAW 2008
(Article 29) and he enjoys immunity from criminal A: The Ambassador is immune from prosecution
jurisdiction (Article 31). for all crimes committed by him whether officially Notes:
or in his private capacity.
This immunity may cover the “high ranking
officials” in question, who are assumed to be The consul is immune from criminal prosecution
diplomatic officers or agents. ONLY for acts committed by him in connection
with his official functions.
With respect to the “rank and file employees”
that are covered by the immunity referred to Q: The Ambassador of State X to the Philippines
above, provided that are not nationals or bought in the name of his government two
permanent residents of the Philippines pursuant houses and lots at Forbes Park, Makati. One
to Article 37(2) of the said Convention. house is used as the chancery and residence of
the ambassador, and the other as quarters for
If the said rank and file employees belong to the nationals of State X who are studying in De La
service staff of the diplomatic mission (such as Salle University. The Register of Deeds refused
drivers) they may be covered by the immunity to register the sale and to issue Transfer
(even if they are not Philippine nationals or Certificates of Title in the name of State X. Is
residents) as set out in Article 37(3), if at the his refusal justified?
time of the arrest they were in “acts performed in A: The prohibition in the Constitution against
the course of their duties.” If a driver was among
alienation of lands in favor of aliens does not
the said rank and file employees and he was apply to alienation of the same in favor of foreign
arrested while driving a diplomatic vehicle or
governments to be used as chancery and
engaged in related acts, still he would be covered residence of its diplomatic representatives. The
by the immunity.
receiving state is under obligation to facilitate the
acquisition on its territory, in accordance with its
Q: A foreign ambassador to the Philippines
laws, by the sending state of premises necessary
leased a vacation house in Tagaytay for his for its mission, or to assist the latter in obtaining
personal use. For some reason, he failed to pay
accommodation in some other way. Therefore,
the rentals for more than one year. The lessor the refusal of the Register of Deeds to register the
filed an action for the recovery of his property
sale and the issuance of TCT in the name of state
in court. X is unjustified.
a) Can the foreign ambassador invoke his
diplomatic immunity to resist the lessor’s However, in so far as the house and lot to be used
action?
as quarters of the nationals of State X who are
b) The lessor gets hold of evidence that the studying in De La Salle University are concerned,
ambassador is about to return to his home
the Register of Deeds correctly refused
country. Can the lessor ask the court to registration. Here, the prohibition in the
stop the ambassador’s departure from the
constitution against the transfer of properties to
Philippine? (2000 Bar) parties other than the Filipino citizens or
A: a) No, the foreign ambassador cannot invoke
corporation 60% of the capital of which is owned
the diplomatic immunity to resist the action, by such citizens should be followed.
since he is not using the house in Tagaytay City
for the purposes of his mission but merely for Termination of Diplomatic Relation
vacation. Under 3(1)(a) of the Vienna Convention
A diplomatic mission may come to an end by any
on Diplomatic Relations, a diplomatic agent has of the usual methods of terminating official
no immunity in case of a real action relating to
relations like:
private immovable property situated in the
territory of the receiving State unless he holds it
Under Municipal Law: [ R A D A R ]
on behalf of the sending State for purposes of the a) Resignation
mission.
b) Accomplishment of the purpose
c) Death
b) No, the lessor cannot ask the court to stop the
departure of the ambassador from the Philippines. d) Abolition of the office
Under Article 29 of the Vienna Convention, a
e) Removal
diplomatic agent shall not be liable to any form of
arrest or detention.
Under the International Law: [ W E R ]
a) War - the outbreak of war between the
Q: The United States Ambassador from the
sending and receiving states terminates
Philippines and the American Consul General their diplomatic relations, which is
also in the Philippines quarreled in the lobby of
usually severed before the actual
Manila Hotel and shot each other. May the commencement of hostilities;
Philippine courts take jurisdiction over them for
b) Extinction - extinction of either the
trial and punishment for the crime they may sending state or the receiving state will
have committed? (1979 Bar)
45 PUBLIC INTERNATIONAL LAW 2008
They are not clothed with diplomatic character b) An action relating to succession
and are not accredited to the government of the in which the diplomatic agent is involved as
country where they exercised their consular executor, administrator, heir or legatee as
functions; they deal directly with local private person and not on behalf of the
authorities. sending state;
trial unless the offense was committed against his ground of defendant Adams’ diplomatic
father, mother, child, ascendant, descendant or immunity from suit. Notes:
spouse. Consuls are not liable to arrest and (b) As counsel of defendant Adams, argue for
detention pending trial except in the case of the dismissal of the complaint.
grave crime and pursuant to a decision by the A: (a) As a counsel of Baker, I shall argue that
competent judicial authority. The crime of Baker has no diplomatic immunity, because he is
physical injuries is not a grave crime unless it is not performing diplomatic functions.
committed against the above-mentioned persons.
Alternative A: (a) As a counsel for Baker, I will
b) Yes, Under Article 40 of the Vienna argue that Adam’s diplomatic immunity cannot be
Convention, if a diplomatic agent is in the accepted as the sole basis for the dismissal of the
territory of a third state, which has granted him a damage suit, by mere presentation of Diplomatic
passport visa if such was necessary, while Notes stating that he is an agent of the US Drug
proceeding to take up his post, the third state Enforcement Agency. His diplomatic status was
shall accord him inviolability and such other matter of serious doubt on account of his failure
immunities as may be required to ensure his to disclose it when he appeared as principal
transit. witness in the earlier criminal (drug) case against
Baker, considering that as a matter of diplomatic
MUNICHER v. CA practice a diplomatic agent may be allowed or
authorized to give evidence as a witness by the
G.R. No. 142396, 11 February 2003
sending state. Thus, his diplomatic status was not
sufficiently established.
If the acts giving rise to a suit are those of a
foreign government done by its foreign agent, (b) As counsel of Adams, I shall argue that since
although not necessarily a diplomatic personage, he was acting within his assigned functions with
but acting in his official capacity, the complaint the consent of the Philippines, the suit against
could be barred by the immunity of the foreign him is a suit against the United States without its
sovereign from suit without its consent. consent and is barred by state immunity from
suit. [Minucher v. CA, 397 SCRA 244, (2003)]
Q: Adams and Baker are American citizens
residing in the Philippines. Adams befriended
Baker and became a frequent visitor at his
JURISDICTIONAL ASSISTANCE
house. One day, Adams arrived with 30
members of the Philippine National Police,
armed with a Search Warrant authorizing the Extradition Defined
search of Baker’s house and its premises for Extradition distinguished from Double Criminality
dangerous drugs being trafficked to the United Basis for Allowing Extradition
States of America. Rules in Interpretation of Extradition Treaty
Extradition Distinguished from Deportation
The search purportedly yielded positive results, Fundamental Principles Governing Extradition
and Baker was charged with Violation of the Extradition of War Criminals and Terrorists
Dangerous Drugs Act. Adams was the Attentat Clause
prosecution’s principal witness. However, for Five Postulates of Extradition
failure to prove his guilt beyond reasonable Right of Asylum
doubt, Baker was acquitted. Asylum Distinguished from Refugees
3 Essentials Elements of Refugees
Baker then sued Adams for damages for filing Non-Refoulment Principle
trumped-up charges against him. Among the Nationality Distinguished from Citizenship
defenses raised by Adams is that he has Doctrine of Effective Nationality
diplomatic immunity, conformably with the Statelessness
Vienna Convention on Diplomatic Relations. He
presented Diplomatic Notes from the American ¯°º°¯
Embassy stating that he is an agent of the
United States Drug Enforcement Agency tasked Extradition
with “conducting surveillance operations” on The delivery of an accused or a convicted
suspected drug dealers in the Philippines individual to the State in whose territory he is
believed to be the source of prohibited drugs alleged to have committed a crime by the State
being shipped to the U.S. It was also stated that on whose territory the alleged criminal or criminal
after having ascertained the target, Adams happens to be at the time.
would then inform the Philippine narcotic
agents to make the actual arrest. (2005 Bar) The legal duty to extradite a fugitive from justice
(a) As counsel of plaintiff Baker, argue why his is based only on treaty stipulations, which are
complaint should not be dismissed on the classified under two major types:
48 PUBLIC INTERNATIONAL LAW 2008
the final discretion to extradite him. The United Q: Discuss the rules in the interpretation of
States adheres to a similar practice whereby the extradition treaties. Notes:
Secretary of State exercises wide discretion in Held: [A]ll treaties, including the RP-US
balancing the equities of the case and the Extradition Treaty, should be interpreted in light
demands of the nation's foreign relations before of their intent. Nothing less than the Vienna
making the ultimate decision to extradite. Convention on the Law of Treaties to which the
Philippines is a signatory provides that “a treaty
As an extradition proceeding is not criminal in shall be interpreted in good faith in accordance
character and the evaluation stage in an with the ordinary meaning to be given to the
extradition proceeding is not akin to a preliminary terms of the treaty in their context and in light of
investigation, the due process safeguards in the its object and purpose.” X x x. It cannot be
latter do not necessarily apply to the former. gainsaid that today, countries like the Philippines
This we hold for the procedural due process forge extradition treaties to arrest the dramatic
required by a given set of circumstances “must rise of international and transnational crimes like
begin with a determination of the precise nature terrorism and drug trafficking. Extradition
of the government function involved as well as treaties provide the assurance that the
the private interest that has been affected by punishment of these crimes will not be frustrated
governmental action.” The concept of due by the frontiers of territorial sovereignty. Implicit
process is flexible for “not all situations calling in the treaties should be the unbending
for procedural safeguards call for the same kind commitment that the perpetrators of these crimes
of procedure.” (Secretary of Justice v. Hon. will not be coddled by any signatory state.
Ralph C. Lantion, G.R. No. 139465, Oct. 17, 2000,
En Banc [Puno]) It ought to follow that the RP-US Extradition
Treaty calls for an interpretation that will
Q: Will the retroactive application of an minimize if not prevent the escape of extraditees
extradition treaty violate the constitutional from the long arm of the law and expedite their
prohibition against "ex post facto" laws? trial. X x x
Held: The prohibition against ex post facto law
applies only to criminal legislation which affects [A]n equally compelling factor to consider is the
the substantial rights of the accused. This being understanding of the parties themselves to the
so, there is no merit in the contention that the RP-US Extradition Treaty as well as the general
ruling sustaining an extradition treaty’s interpretation of the issue in question by other
retroactive application violates the constitutional countries with similar treaties with the
prohibition against ex post facto laws. The treaty Philippines. The rule is recognized that while
is neither a piece of criminal legislation nor a courts have the power to interpret treaties, the
criminal procedural statute. (Wright v. CA, 235 meaning given them by the departments of
SCRA 341, Aug. 15, 1994 [Kapunan]) government particularly charged with their
negotiation and enforcement is accorded great
Q: The Philippines and Australia entered into a weight. The reason for the rule is laid down in
Treaty of Extradition concurred in by the Santos III v. Northwest Orient Airlines, et al. (210
Senate of the Philippines on September 10, SCRA 256, 261 [1992]), where we stressed that a
1990. Both governments have notified each treaty is a joint executive-legislative act which
other that the requirements for the entry into enjoys the presumption that “it was first carefully
force of the Treaty have been complied with. It studied and determined to be constitutional
took effect in 1990. before it was adopted and given the force of law
in the country.” (Secretary of Justice v. Hon.
The Australian government is requesting the Ralph C. Lantion, G.R. No. 139465, Oct. 17, 2000,
Philippine government to extradite its citizen, En Banc [Puno])
Gibson, who has committed in his country the
indictable offense of Obtaining Property by Q: What is the difference, if any, between
Deception in 1985. The said offense is among extradition and deportation? (1995 Bar)
those enumerated as extraditable in the Treaty. A:
For his defense, Gibson asserts that the BASIS EXTRADITION DEPORTATION
retroactive application of the extradition treaty Nature Normally Even if no crime
amounts to an ex post facto law. Rule on committed with was committed
Gibson’s contention. (2005 Bar) criminal as long as the
offenses in the alien is
A: The contention of Gibson is not tenable. The territory of the extraditable
prohibition in Section 22, Article III of the requesting
Constitution refers to ex post facto laws. An state
extradition treaty is not a criminal law. [Wright
v. CA, 235 SCRA 341 (1994)] Benefit Effected for Effected for the
the benefit of protection of the
50 PUBLIC INTERNATIONAL LAW 2008
the state to state expelling John fled to Republic A. William, who was in
which the an alien because Republic B attending a lecture on democracy, Notes:
person being his presence is was advised by his friends to stay in Republic B.
extradited will inimical to
be surrendered public good Both Republic A and Republic B have
because he is a conventional extradition treaties with Republic
fugitive X.
criminal in that
state If Republic X requests the extradition of John
and William, can Republic A deny the request?
How? Effected on the The unilateral Why? State your reason fully. (2002 Bar)
basis of an act of the state
extradition expelling the A: Republic A can refuse to extradite John,
treaty or upon alien because his offense is a political offense. John
the request of was plotting to take over the government and the
another state plan of John to assassinate President Harry was
part of such plan. However, if the extradition
Where? The alien will The undesirable treaty contains an attentat clause, Republic A can
be surrendered alien may be extradite John because under the attentat clause,
to the state sent to any state the taking of the life or attempt against the life of
asking for his willing to accept a head of state or that of the members of his
extradition him family does not constitute a political offense and
is therefore extraditable.
Fundamental Principles Governing Extradition:
a) There is no legal obligation to surrender a Alternative A: Republic A may or can refuse the
fugitive unless there is a treaty. request of extradition of William because he is
b) Religious and political offenses are generally not in its territory and thus it is not in the position
not extraditable. to deliver him to Republic X.
c) A person extradited can be prosecuted by the
requesting state only for the crime for which Even if William were in the territorial jurisdiction
he was extradited; and of Republic A, he may not be extradited because
d) Unless provided for in a treaty, the crime for inciting to sedition, of which he is charged,
which a person is extradited must have been constitutes a political offense. It is a standard
committed in the territory of the requesting provision of extradition treaties, such as the one
state. between Republic A and Republic X, that political
offenses are not extraditable.
Q: John is a former President of the Republic X,
bent on regaining power which he lost to Alternative A: Republic B can deny the request
President Harry in an election. Fully convinced the request of Republic X to extradite William,
that he was cheated, he set out to destabilize because his offense was not a political offense.
the government of President Harry by means of On the basis of the predominance of
a series of protest actions. His plan was to proportionality test, his acts were not directly
weaken the government and when the situation connected to any purely political offense.
became ripe for a take-over, to assassinate
President Harry. Q: On November 1, 1976, A, B, C and D, self
styled Moro rebels long wanted by the
William, on the other hand, is a believer in authorities for the fatal ambuscade of a bus
human rights and a former follower of President load of innocent civilians, hijacked a PAL lane
Harry. Noting the systematic acts of harassment on its Manila-Davao flight which they forcibly
committed by government agents against diverted to, and landed in Jakarta Indonesia. In
farmers protesting the seizure of their lands, that country, A, B, C and D sought political
laborers complaining of low wages, and students asylum, invoking the UN Declaration on Human
seeking free tuition, William organized groups Rights. Reacting, the Philippine Government,
which held peaceful rallies in front of the through proper diplomatic channels sought after
Presidential Palace to express their grievances. their extradition. May Indonesia grant asylum
or should it extradite A, B, C and D to the
On the eve of the assassination attempt, John’s Philippines. (1976 Bar)
men were caught by member of the Presidential
Security Group. President Harry went on air Q: Sergio Osmeña III and Eugenio Lopez Jr. both
threatening to prosecute plotters and dissidents charged with attempted assassination of
of his administration. The next day, the President Marcos before the military tribunal,
government charged John with assassination escaped from military custody, flew to Hong
attempt and William with inciting to sedition. Kong and then to California USA where they are
reportedly seeking political asylum. There is no
51 PUBLIC INTERNATIONAL LAW 2008
extradition treaty however between the Whiteman points out, extradition does not define
Philippines and the United States.Assuming that crimes but merely provides a means by which a Notes:
the Philippine Government desires the state may obtain the return and punishment of
surrender of the above-named fugitives to the persons charged with or convicted of having
Philippines to face trial before the military committed a crime who fled the jurisdiction of
tribunal, how can this be legally done under the state whose law has been violated. It is
International Law? (1978 Bar) therefore immaterial whether at the time of the
A: The Philippines may only request and cannot commission of the crime for which extradition is
demand the surrender of the two fugitives. As sought no treaty was in existence. If at the time
territorial sovereign, the United States is not of extradition is requested there is in force
obliged to return them but may decide to do so between the requesting and the requested state a
for reasons of comity. This is likely, however, treaty covering the offense on which the request
because the escapees are sought for political is based, the treaty is applicable.
offense and can claim the right of asylum under
the Universal Declaration of Human Rights. b) No, as held in WRIGHT vs. CA, 295 SCRA 341,
the prohibition against ex post facto laws in
Q: Explain, using example, the principle of Section 22 of Article III of the Constitution applies
Double Criminality. (1991 Bar) to penal laws only and does not apply to
A: The principle of double criminality is the rule extradition treaties.
in extradition which states that for a request to
be honored, the crime for which the extradition is Extradition of War Criminals and Terrorists
requested must be a crime in both the requesting (Violators of crimes against international law)
state and the state to which the fugitive fled. For As violators of crimes against international law,
example, since murder is a crime both in the war criminals are subject to extradition in 1946,
Philippines and Canada, under the Treaty of the UN General Assembly passed a resolution
extradition between the Philippines and Canada, recommending to members and calling upon all
the Philippines can request Canada to extradite non-members to extradite war criminals,
Filipino who has fled to Canada. including traitors.
co-operation in the suppression of crime”. It is Fulfilling our obligations under the Extradition
the only regular system hat has been devised to Treaty promotes comity with the requesting state. Notes:
return fugitives to the jurisdiction of a court On the other hand, failure to fulfill our obligations
competent to try them in accordance with thereunder paints a bad image of our country
municipal and international law. before the world community. Such failure would
discourage other states from entering into
The Requesting State Will Accord Due Process to treaties with us, particularly an extradition treaty
the Accused. that hinges on reciprocity.
The Proceedings Are Sui Generis. FIFTH, persons to be extradited are presumed to
be flight risks. This prima facie presumption finds
THIRD, as pointed out in Secretary of Justice vs. reinforcement in the experience of the executive
Lantion, extradition proceedings are not criminal branch nothing short of confinement can ensure
in nature. In criminal proceedings, the that the accused will not flee the jurisdiction of
constitutional rights of the accused are at fore; in the requested state in order to thwart their
extradition, which is sui generis - in a class by extradition to the requesting state.
itself – they are not.
The present extradition case further validates the
premise that persons sought to be extradited have
Given the foregoing, it is evident that the a propensity to flee. Indeed, extradition hearings
extradition court is not called upon to ascertain would not even begin, if only the accused were
the guilt or the innocence of the person sought to willing to submit to trial in the requesting
be extradited. Such determination during the country. Prior acts of herein respondent:
extradition proceedings will only result in
needless duplication and delay. c) Leaving the requesting state right before the
conclusion of his indictment proceedings
Extradition is merely a measure of international there; and
judicial assistance through which a person d) Remaining in the requested state despite
charged with or convicted of a crime is restored learning that the requesting state is seeking
to a jurisdiction with the best claim to try that his return and that the crimes he is charged
person. It is not part of the function of the with are bailable - eloquently speak of his
assisting authorities to enter into questions, which aversion to the processes in the requesting
are the prerogative of that jurisdiction. state, as well as his predisposition to avoid
them at all cost.
The ultimate purpose of extradition proceedings
in court is only to determine whether the These circumstances point to an ever-present,
extradition request complies with the Extradition underlying high risk of flight. He has
Treaty, and whether the person sought is demonstrated that he has the capacity and the
extraditable. will to flee. Having fled once, what is there to
stop him, given sufficient opportunity, from
Compliance Shall Be in Good Faith. fleeing a second time?
“SEC. 6. Issuance of Summons; Temporary Arrest, determined therefrom that a prima facie finding
Hearing, Service of Notices - did not exist, respondent judge gravely abused his Notes:
discretion when he set the matter for hearing
(1) Immediately upon receipt of the petition, the upon motion of Jimenez.
presiding judge of the court shall, as soon as
practicable, summon the accused to appear and Moreover, the law specifies that the court se a
to answer the petition on the day and hour fixed hearing upon receipt of the answer or upon failure
in the order. He may issue a warrant for the of the accused to answer after receiving the
immediate arrest of the accused which may be summons. In connection with the matter of
served any where within the Philippines if it immediate arrest, however, the word “hearing” is
appears to the presiding judge that the immediate notably absent from the provision. Evidently, had
arrest and temporary detention of the accused the holding of a hearing at that stage been
will best serve the ends of justice. Upon receipt intended, the law could have easily so provided.
of the answer, or should the accused after having It also bears emphasizing at this point that
received the summons fail to answer within the extradition proceedings are summary in nature.
time fixed, the presiding judge shall hear the case Hence, the silence of the Law and the Treaty
or set another date for the hearing thereof. leans to the more reasonable interpretation that
there is no intention to punctuate with a hearing
(2) The order and notice as well as a copy of the every little step in the entire proceedings.
warrant of arrest, if issued, shall be promptly
served each upon the accused and the attorney Verily, as argued by petitioner, sending to persons
having charge of the case.” sought to be extradited a notice of the request for
their arrest and setting it for hearing at some
Does this provision sanction RTC Judge future date would give them ample opportunity to
Purganan’s act of immediately setting for hearing prepare and execute an escape. Neither the
the issuance of a warrant of arrest? We rule in Treaty nor the Law could have intended that
the negative: consequence, for the very purpose of both would
have been defeated by the escape of the accused
from the requested state.
A. On the Basis of the Extradition law
issuance of a warrant of arrest. All we required Moreover, the constitutional right to bail “flows
was that the “judge must have sufficient from the presumption of innocence in favor of Notes:
supporting documents upon which to make his every accused who should not be subjected to the
independent judgment, or at the very least, upon loss of freedom as thereafter he would be entitled
which to verify the findings of the prosecutor as to acquittal, unless his guilt be proved beyond
to the existence of probable cause.” reasonable doubt.
In Webb vs. De Leon, the Court categorically It follows that the constitutional provision on bail
stated that a judge was not supposed to conduct a will not apply to a case like extradition, where
hearing before issuing a warrant of arrest: the presumption of innocence is not at issue.
“Again, we stress that before issuing The provision in the Constitution stating that the
warrants of arrest, judges merely “right to bail shall not be impaired even when the
determine personally the probability, not privilege of the writ of habeas corpus is
the certainty of guilt of an accused. In suspended” does not detract from the rule that
doing so, judges do not conduct a de novo the constitutional right to bail is available only in
hearing to determine the existence of criminal proceedings. It must be noted that the
probable cause. They just personally review suspension of the privilege of the writ of habeas
the initial determination of the prosecutor corpus finds application “only to persons judicially
finding a probable cause to see if it is charged for rebellion or offenses inherent in or
supported by substantial evidence.” directly connected with invasion.” Hence, the
second sentence in the constitutional provision on
At most, in cases of clear insufficiency of bail merely emphasizes the right to bail in
evidence on record, judges merely further criminal proceedings for the aforementioned
examine complainants and their witnesses. In the offenses. It cannot be taken to mean that the
present case validating the act of respondent right is available even in extradition proceedings
judge and instituting the practice of hearing the that are not criminal in nature.
accused and his witnesses at this early stage
would be discordant with the rationale for the That the offenses for which Jimenez is sought to
entire system. If the accused were allowed to be be extradited are bailable in the United States is
heard and necessarily to present evidence during not an argument to grant him one in the present
the prima facie determination for the issuance of case. To stress, extradition proceedings are
a warrant of arrest, what would stop him from separate and distinct from the trial for the
presenting his entire plethora of defenses at this offenses for which he is charged. He should apply
stage -- if he so desires -- in his effort to negate for bail before the courts trying the criminal cases
a prima facie finding? Such a procedure could against him, not before the extradition court.
convert the determination of a prima facie case
into a full-blown trial of the entire proceedings Q: Will Mark Jimenez detention prior to the
and possibly make trial of the main case conclusion of the extradition proceedings not
superfluous. This scenario is also anathema to the amount of his right to due process?
summary nature of extraditions. A: Contrary to his contention, his detention prior
to the conclusion of the extradition proceedings
That the case under consideration is an does not amount to a violation of his right to due
extradition and not a criminal action is not process. We reiterate the familiar doctrine that
sufficient to justify the adoption of a set of the essence of due process is the opportunity to
procedures more protective of the accused. If a be heard but, at the same time, point out that
different procedure were called for at all, a more the doctrine does not always call for a prior
restrictive one – not the opposite – would be opportunity to be heard. Where the
justified in view of respondent’s demonstrated circumstances—such as those present in an
predisposition to flee. extradition case – call for it, a subsequent
opportunity to be heard is enough. In the present
Q: Is respondent Mark Jimenez entitled to bail case, respondent will be given full opportunity to
during the pendency of the Extradition be heard subsequently, when the extradition
Proceeding? court hears the Petition for Extradition. Hence,
A: We agree with petitioner: As suggested by the there is no violation of his right to due process
use of the word “conviction,” the constitutional and fundamental fairness.
provision on bail quoted above, as well as Section
4 of Rule 114 pf the Rules of Court, applies only Contrary to the contention of Jimenez, we find no
when a person has been arrested and detained for arbitrariness, either, in the immediate
violation of Philippine criminal laws. It does not deprivation of his liberty prior to his being heard.
apply to extradition proceedings, because That his arrest and detention will not be arbitrary
extradition courts do not render judgments of is sufficiently ensured by:
conviction or acquittal.
55 PUBLIC INTERNATIONAL LAW 2008
1) The DOJ’s filing in court of the Petition with their detention here. Likewise, their detention
its supporting documents after a pending the resolution of extradition proceedings Notes:
determination that the extradition request would fall into place with the emphasis of the
meets the requirements of the law and the Extradition Law on the summary nature of
relevant treaty; extradition cases and the need for their speedy
disposition.
2) The extradition judge’s independent prima
facie determination that his arrest will best Q: What are the exceptions to the “No Bail”
serve the ends of justice before the issuance Rule in Extradition Proceedings?
of a warrant for his arrest; and A: The rule, we repeat, is that bail is not a matter
of right in extradition cases.
3) His opportunity, once he is under the court’s
custody, to apply for bail as an exception to However, the judiciary has the constitutional duty
the no-initial-bail rule. to curb grave abuse of discretion and tyranny, as
well as the power to promulgate rules to protect
It is also worth noting that before the US and enforce constitutional rights. Furthermore,
government requested the extradition of we believe that the right to due process is broad
respondent, proceedings had already been enough to include the grant of basic fairness to
conducted in that country. But because he left extraditees. Indeed, the right to due process
the jurisdiction of the requesting state before extends to the “life, liberty or property” of every
those proceedings could be completed, it was person. It is “dynamic and resilient, adaptable to
hindered from continuing with the due processes every situation calling for its application.”
prescribed under its laws. His invocation of due
process now has thus become hollow. He already Accordingly and to best serve the ends of justice,
had that opportunity in the requesting state; yet we believe and so hold that, after a potential
instead of taking it, he ran away. extraditee has been arrested or placed under the
custody of the law, bail may be applied for and
In this light, would it be proper and just for the granted as an exception, only upon a clear and
government to increase the risk of violating its convincing showing of the following:
treaty obligations in order to accord Respondent
Jimenez his personal liberty in the span of time 1) That, once granted bail, the applicant will
that it takes to resolve the Petition for not be a flight risk or a danger to the
Extradition? His supposed immediate deprivation community; and
of liberty without the due process that he had 2) That there exist special, humanitarian and
previously shunned pales against the compelling circumstances including, as a
government’s interest in fulfilling its Extradition matter of reciprocity, those cited by the
Treaty obligations and in cooperating with the highest court in the requesting state when it
world community in the suppression of crime. grants provisional liberty in extradition case
Indeed, “constitutional liberties do not exist in a therein.
vacuum; the due process rights accorded to 3) That, the extraditee will abide with all the
individuals must be carefully balanced against orders and processes of the extradition court.
exigent and palpable government interests.”
Too, we cannot allow our country to be a haven Since this exception has no express or specific
for fugitives, cowards and weaklings who, instead statutory basis, and since it is derived essentially
of facing the consequences of their actions, from general principles of justice and fairness,
choose to run and hide. Hence, it would not be the applicant bears the burden of proving the
good policy to increase the risk of violating our above two-tiered requirement with clarity;
treaty obligations if, through overprotection or precision and emphatic forcefulness.
excessively liberal treatment, persons sought to
be extradited are able to evade arrest or escape The Court realizes that extradition is basically an
executive; not a judicial, responsibility arising
from our custody. In the absence of any provision
- in the Constitution, the law or the treaty - from the presidential power to conduct foreign
relations. In its barest concept, it partakes of the
expressly guaranteeing the right to bail in
extradition proceedings, adopting the practice of nature of police assistance amongst states, which
is not normally a judicial prerogative.
not granting them bail, as a general rule, would
be a step towards deterring fugitives from coming Hence, any intrusion by the courts into the
to the Philippines to hide from or evade their exercise of this power should be characterized by
prosecutors. caution, so that the vital international and
bilateral interests of our country will not be
The denial of bail as a matter of course in unreasonably impeded or compromised. In short,
extradition cases falls into place with and gives while this Court is ever protective of “the
life to Article 14 of the Treaty, since this practice sporting idea of fair play,” it also recognizes the
would encourage the accused to voluntarily limits of its own prerogatives and the need to
surrender to the requesting state to cut short fulfill international obligations.
56 PUBLIC INTERNATIONAL LAW 2008
substance, whether it complies with the request to return a fugitive. Worse our
Extradition Treaty and the Law, and whether the country should not be converted into a Notes:
person sought is extraditable. The magistrate has dubious haven where fugitives and escapes
discretion to require the petitioner to submit can unreasonably delay, mummify, mock,
further documentation, or to personally examine frustrate, checkmate and defeat the quest
the affiants or witnesses. If convinced that a for bilateral justice and international
prima facie case exists, the judge immediately cooperation.
issues a warrant for the arrest of the potential
extraditee and summons him or her to answer and 10) At the bottom, extradition proceedings
to appear at scheduled hearing on the petition. should be conducted with all deliberate
speed to determine compliance with the
5) After being taken into custody, potential Extradition Treaty and the Law; and while
extraditees may apply for bail. Since the safeguarding basic individual rights, to avoid
applicants have a history of absconding, they have the legalistic contortions, delays and
the burden of showing that (a) their is no flight technicalities that may negate that purpose.
risk and no danger to the community; and (b)
there exist a special, humanitarian or compelling
circumstances. The grounds used by the highest CUEVAS V. MUŇOZ
court in the requesting state for the grant of bail G.R. No. 140520, 18 December 2000, Second
therein may be considered, under the principle of Division, De Leon, J.
reciprocity as a special circumstance.
JUAN ANTONIO MUÑOZ is charged with seven (7)
In extradition cases, bail is not a matter of right;
it is subject to judicial discretion in the context of counts of accepting an advantage as an agent
contrary to Section 9(1)(a) of the Prevention of
the peculiar facts of each case.
Bribery Ordinance of. Cap 201 of Hong Kong, and
seven (7) counts of conspiracy to defraud,
6) Potential extraditees are entitled to the
rights to due process and to fundamental contrary to the common law of Hong Kong, for
each count of which, if found guilty, he may be
fairness. Due process does not always call for
a prior opportunity to be heard. A punished with seven (7) and fourteen (14) years
imprisonment, respectively. The Hong Kong
subsequent opportunity to be heard is
sufficient due process to the flight risk Magistrate’s Court issued a warrant for his arrest.
Thereafter, the Philippine DOJ received a request
involved. Indeed, available during the
hearings on the petition and the answer is the for the provisional arrest of MUÑOZ pursuant to
the RP-Hong Kong Extradition Agreement. The
full chance to be heard and to enjoy
fundamental fairness that is compatible with Philippine DOJ forwarded the request for
provisional arrest to the NBI, which filed an
the summary nature of extradition.
application for the provisional arrest of MUÑOZ
with RTC of Manila for and in behalf of the
7) This Court will always remain a protector of
human rights, a bastion of liberty, a bulwark government of Hong Kong. RTC granted the
application. However, CA declared the Order of
of democracy and the conscience of society.
But it is also well aware of the limitations of Arrest null and void.
its authority and of the need for respect for
the prerogatives of the other co-equal and ISSUE: Whether Munoz should be provisionally
co-independent organs of government. arrested
of First Instance of Hong Kong on September 17, a request for provisional arrest to be
1999. The Hong Kong DOJ was concerned that the authenticated, Article 9 of the same Extradition Notes:
pending request for the extradition of the Agreement makes authentication a requisite for
respondent would be disclosed to the latter during admission in evidence of any document
the said proceedings, and would motivate accompanying a request for surrender or
respondent to flee the Philippines before the extradition. In other words, authentication is
request for extradition could be made. required for the request for surrender or
extradition but not for the request for provisional
There is also the fact that respondent is charged arrest.
with seven (7) counts of accepting an advantage
as an agent and seven (7) counts of conspiracy to the provisions of PD 1069 and the RP-Hong Kong
defraud, for each count of which, if found guilty, Extradition Agreement, as they are worded, serve
he may be punished with seven (7) and fourteen the purpose sought to be achieved by treaty
(14) years imprisonment, respectively. stipulations for provisional arrest. The process of
Undoubtedly, the gravity of the imposable penalty preparing a formal request for extradition and its
upon an accused is a factor to consider in accompanying documents, and transmitting them
determining the likelihood that the accused will through diplomatic channels, is not only time-
abscond if allowed provisional liberty. It is, after consuming but also leakage-prone. There is
all, but human to fear a lengthy, if not a lifetime, naturally a great likelihood of flight by criminals
incarceration. Furthermore, it has also not who get an intimation of the pending request for
possessed of sufficient resources to facilitate an their extradition. To solve this problem, speedier
escape from this jurisdiction. initial steps in the form of treaty stipulations for
provisional arrest were formulated. Thus, it is an
That respondent did not flee despite the accepted practice for the requesting state to rush
investigation conducted by the Central bank and its request in the form of a telex or diplomatic
the NBI way back in 1994, nor when the warrant cable, the practically of the use of which in
for his arrest was issued by the Hong Kong ICAC in conceded. even our own Extradition Law (PD
August 1997, is not a guarantee that he will no 1069) allows the transmission of a request for
flee now that proceedings for his extradition are provisional arrest via telegraph. In the advent of
well on the way. Respondent is about to leave the modern technology, the telegraph or cable have
protective sanctuary of his mother state to face been conveniently replaced by the facsimile
criminal charges in another jurisdiction. It cannot machine. Therefore, the transmission by the Hong
be denied that this is sufficient impetus for him to Kong DOJ of the request for respondent’s
flee the country as soon as the opportunity to do provisional arrest and the accompanying
so arises. documents, namely, a copy of the warrant of
arrest against respondent, a summary of the facts
Respondent also avers that his mother’s
of the case against him, particulars of his birth
impending death makes it impossible for him to
and address, a statement of the intention to
leave the country. However, by respondent’s own
request his provisional arrest and the reason
admission, his mother finally expired at the
therefor, by fax machine, more than serves this
Cardinal Santos Hospital in Madaluyong City last
purpose of expediency.
December 5, 1999.24
Bail Can Be Granted to Potential Extraditee on “The time-honored principle of pacta sunt
Basis of Clear and Convincing Evidence servanda demands that the Philippines honor its
obligations under the Extradition
Treaty….However, it does not necessarily mean
In its petition, Hong Kong sought the nullification
that in keeping with its treaty obligations, the
of the Manila RTC’s December 20, 2001 Order
Philippines should diminish a potential
allowing Muñoz to post bail, and April 10, 2002
extraditee’s rights to life, liberty, and due
Order denying the motion to vacate the said Order
process. More so, where these rights are
filed by the Government of Hong Kong Special
guaranteed, not only by our Constitution, but also
Administrative Region, represented by the
by international conventions, to which the
Philippine Department of Justice. Hong Kong
Philippines is a party. We should not, therefore,
alleged that both Orders were issued by the judge
deprive an extraditee of his right to apply for bail,
with grave abuse of discretion amounting to lack
provided that a certain standard for the grant is
or excess of jurisdiction as there is no provision in
satisfactorily met,” the Court said.
the Constitution granting bail to a potential
extraditee.
RP, being a signatory to the 1996 UN General
Assembly which adopted the International
A potential extraditee may be granted bail on the
Covenant on Civil and Political Rights, is “under
basis of clear and convincing evidence that the
obligation to make available to every person
person is not a flight risk and will abide with all
under detention such remedies which safeguard
the orders and processes of the extradition court.
their fundamental right to liberty,” said the
Court. The RP and Hong Kong signed in 1995 an
Thus held the Supreme Court in dismissing the extradition treaty which became effective in
petition of the Government of Hong Kong Special 1997.
Administrative Region to nullify two orders by a
Manila Regional Trial Court (RTC) allowing a
The Court noted that Munoz had been detained
potential extraditee to post bail.
from September 23, 1999 to December 20, 2001,
or for over two years without having been
convicted of any crime.
60 PUBLIC INTERNATIONAL LAW 2008
Example, in the case of Holy See vs. Rosario, the prize money and alleged unfair treatment he
defendant in this case can invoke his rights received from the tournament organizers in the Notes:
against the Holy See not under the Municipal Law Philippines particularly in the 32nd crucial game,
but under International Law through his which he attributes as the main case of his
government, which will espouse his cause of defeat. May he press for his right to the prize
action in his behalf. If this happens, his concern money against the Philippine government
ceases to be a private one but becomes one for through the Swiss government? (1978 Bar)
the public, that is, for the state. A: No, Switzerland even if she so desires, cannot
espouse a diplomatic claim against the Philippines
DOCTRINE OF EFFECTIVE NATIONALITY in behalf of Victor Korchnoi. Nationality is the
Within a third state, a person having more than basis of the right of state to espouse such claim.
one nationality shall be treated as if he had only In this case, Korchnoi is not a Swiss national but a
one. Under the principle of effective nationality, stateless person.
the third state shall recognized conclusively in its
territory either the nationality of the country in Q: Is a stateless person entirely without right,
which he is habitually and principally present or protection or recourse under the Law of
the nationality of the country with which he Nations? Explain. (1995 Bar)
appears to be in fact most closely connected. A: No. Under the Convention in Relation to the
Status of Stateless Persons, the Contracting States
Statelessness agree to accord the stateless persons within their
Statelessness is the condition or status of an territories treatment at least as favorable as that
individual who is born without any nationality or accorded their nationals with respect to;
who loses his nationality without retaining or a) Freedom of religion;
acquiring another. b) Access to the courts;
c) Rationing of products in
An example of the first case would be that of an short supply;
individual born in a state where only the jus d) Elementary education;
sanguinis is recognized to parents whose state
e) Public relief and assistance;
observes only jus soli. The second case may be
illustrated by an individual who, after renouncing f) Labor legislation; and
his original nationality in order to be naturalized g) Social Security
in another state, is subsequently denaturalized They also agree to accord them treatment not less
and thereafter denied repatriation by his former favorable than that accorded to aliens generally
country. in the same circumstances. The Convention also
provides for the issuance of identity papers and
Q: Who are stateless persons under travel documents to the stateless persons.
International Law? (1995 Bar)
A: They are those who are not considered as Q: What measures, if any, has International Law
national by any state under the operation of its taken to prevent statelessness? (1995 Bar)
laws. A: In the Convention on the Conflict of
Nationality Laws of 1930, the Contracting States
Q: What are the consequences of statelessness? agree to accord nationality to persons born in
(1995 Bar) their territory who would otherwise be stateless.
A: These are: The convention on the Reduction of Statelessness
i. No state can intervene or of 1961 provides that if the law of the Contracting
complain in behalf of the stateless States results in the loss of nationality, as a
person for an international delinquency consequence of marriage or termination of
committed by another state in inflicting marriage, such loss must be conditional upon
injury upon him; possession or acquisition of another nationality.
ii. He cannot be expelled by
the state if he is lawfully in its territory
except on grounds of national security or
public order; The Law on International Obligations
iii. He cannot avail himself of
the protection and benefits of citizenship Sources of International Obligations
like securing for himself a passport or The Law of Treaties
visa and personal documents. Treaty Defined
2 Kinds of Treaties
Q: Victor Korchnoi, a stateless resident of Parties
Switzerland, was the challenger to the world Requisites for Validity
chess title held by Russian Anatoly Karpov. Peremptory Norm
After 32 grueling games were played in Baguio Process of Treaty Making
city, Karpov finally retained his title of a close 6 Principle of Alternat
to 5 win. Korchnoi protested no-payment of his Subject Matters of Treaties
62 PUBLIC INTERNATIONAL LAW 2008
Subject Matters of Executive Agreements acts agreed upon and signed by the
Most Favored Nation Clause plenipotentiaries attending the conference. It is Notes:
Pacta Sunt Servanda not the treaty itself. It is rather a summary of
Rebus Sic Stantibus the proceedings of a protracted conference which
Effect of Territorial Changes may have taken place over several years.
Interpretation of Treaties
Termination of Treaties Q: What is a "protocol de cloture"? Will it
State Responsibility for Injury to Aliens require concurrence by the Senate?
Doctrine of State Responsibility Held: A final act, sometimes called protocol de
Conditions for Enforcement of Claim cloture, is an instrument which records the
1. nationality of the claim winding up of the proceedings of a diplomatic
2. exhaustion of local remedies conference and usually includes a reproduction of
3. waiver the texts of treaties, conventions,
4. unreasonable delay recommendations and other acts agreed upon and
5. improper behavior by the injured alien signed by the plenipotentiaries attending the
Methods of Pressing Claims conference. It is not the treaty itself. It is rather
Nature and Measure of Damages a summary of the proceedings of a protracted
conference which may have taken place over
¯°º°¯ several years. It will not require the concurrence
of the Senate. The documents contained therein
Sources: are deemed adopted without need for
1) International agreements – e.g. treaties ratification. (Tanada v. Angara, 272 SCRA 18, May
concluded between States 2, 1997 [Panganiban])
2) Customary international law – e.g. the
doctrine of rebus sic stantibus Treaty as main instrument
“The treaty is the main instrument with which the
A. THE LAW OF TREATIES society of States is equipped for the purpose of
Treaty Defined carrying out its multifarious transactions.” LORD
Q: What is a Treaty? Discuss. McNAIR
Held: A treaty, as defined by the Vienna
Convention on the Law of Treaties, is “an Synonymous words
international instrument concluded between a) Convention
States in written form and governed by b) Pact
international law, whether embodied in a single c) Protocol
instrument or in two or more related instruments, d) Agreement
and whatever its particular designation.” There e) Arrangement
are many other terms used for a treaty or f) Accord
international agreement, some of which are: act, g) Final Act
protocol, agreement, compromis d' arbitrage, h) General Act
concordat, convention, declaration, exchange of i) Exchange of Notes
notes, pact, statute, charter and modus vivendi.
All writers, from Hugo Grotius onward, have ☀ The use of particular terminology has no legal
pointed out that the names or titles of significance in international law.
international agreements included under the
general term treaty have little or no significance. Matters usually dealt with by treaties:
Certain terms are useful, but they furnish little a) lease of naval bases
more than mere description b) the sale or cession of territory
c) the regulation of conduct of
Article 2(2) of the Vienna Convention provides hostilities
that “the provisions of paragraph 1 regarding the d) the termination of war
use of terms in the present Convention are e) the formation of alliances
without prejudice to the use of those terms, or to f) the regulation of commercial
the meanings which may be given to them in the relations
internal law of the State.” (BAYAN [Bagong g) the settling of claims
Alyansang Makabayan] v. Executive Secretary h) the establishment of international
Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, organizations
En Banc [Buena]) 2 Kinds of Treaties
a) traites-lois – law making treaties
Protocol de Clôture b) traits-contrats – contract treaties
A final act, sometimes called protocol de cloture
is an instrument which records the winding up of 1969 Convention on the Law of Treaties
the proceedings of a diplomatic conference and Adopted by the Conference of the Law of Treaties
usually includes a reproduction of the texts of (Vienna Convention). Entered into force on
treaties, conventions, recommendations and other January 27, 1960.
63 PUBLIC INTERNATIONAL LAW 2008
between the obligations of the Members under the The act by which the provisions of a treaty are
UN Charter and their obligations under any formally confirmed and approved by a State. By Notes:
international agreement, their obligations under ratifying a treaty signed in its behalf, a State
the UN Charter shall prevail. expresses its willingness to be bound by the
provisions of such treaty.
Effect of Form on Validity
There is no rule that treaties should be in written ☀ State may ratify a treaty only when it is a
form. Oral treaties are NOT prohibited. signatory to it.
However, orally agreed treaties are a rarity.
☀ There is no moral duty on the part of the
Note: The Vienna Convention, however, defines a States to ratify a treaty notwithstanding that
“treaty” as “an international agreement its plenipotentiaries have signed the same.
concluded between States in written form and This step, however, should not be taken
governed by international law, whether embodied lightly.
in a singe instrument or in two or more related
instruments and whatever its particular ☀ A treaty may provide that it shall not be valid
designation (is).” even ratified but shall be valid only after the
exchange or deposit of ratification has
transpired.
PROCESS OF TREATY-MAKING
Usual Steps Taken Q: What is ratification? Discuss its function in
1) Negotiation of parties the treaty-making process.
2) Signature of the agreed text Held: Ratification is generally held to be an
3) Ratification or accession executive act, undertaken by the head of state or
made by the treaty-making organs of States of the government, as the case may be, through
concerned which the formal acceptance of the treaty is
4) Exchange or deposit of the proclaimed. A State may provide in its domestic
instruments of ratification or accession. legislation the process of ratification of a treaty.
The consent of the State to be bound by a treaty
At present, treaties are prepared and adopted by is expressed by ratification when: (a) the treaty
means of international diplomatic conferences. provides for such ratification, (b) it is otherwise
Also, a large number of multilateral conventions established that the negotiating States agreed
have been adopted by international organizations that ratification should be required, (c) the
such as the General Assemble of the UN. representative of the State has signed the treaty
subject to ratification, or (d) the intention of the
Principle of Alternat State to sign the treaty subject to ratification
According to this principle, the order of the appears from the full powers of its
naming of the parties, and of the signatures of the representative, or was expressed during the
plenipotentiaries is varied so that each party is negotiation. (BAYAN [Bagong Alyansang
named and its plenipotentiary signs first in the Makabayan] v. Executive Secretary Ronaldo
coy of the instrument to be kept by it. Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc
[Buena])
★ However, with respect to treaties with many
parties, the practice is usually to arrange the Accession or Adherence
names alphabetically in English or in French. When a State, who has NOT SIGNED a treaty,
accedes to it.
Significance of Signature
Rule: The act of signature has little legal Binding Effects of a Treaty
significance except as a means of authenticating As a rule, a treaty is binding only on the
the text of the treaty. It is the act of ratification contracting parties, including not only the original
that is required to make a treaty binding. signatories but also other states, which, although
they may not have participated in the negotiation
Exceptions: of the agreement, have been allowed by its terms
a) the treaty provides that signature shall have to sign it later by a process known as accession.
such effect; Non-parties are usually not bound under the
b) it is otherwise established that the maxim of pacta tertiis nec noceat nec prosunt.
negotiating States were agreed that
signatures should have that effect; or Q: Enumerate instances when a third State who
c) the intention of the State to give that effect is non-signatory may be bound by a treaty.
to the signature appears from the full powers A:
of its representative or was expressed during 1. When a treaty is a mere formal
the negotiations. expression of customary international law,
which, as such is enforceable on all civilized
Ratification
65 PUBLIC INTERNATIONAL LAW 2008
states because of their membership in the combined military exercise. Besides, the holding
family of nations. of combined military exercise is connected with Notes:
defense, which is a sovereign function.
2. Under Article 2 of its charter,
the UN shall ensure that non-member States Q: Discuss the binding effect of treaties and
act in accordance with the principles of the executive agreements in international law.
Charter so far as may be necessary for the Held: [I]n international law, there is no
maintenance of international peace and difference between treaties and executive
security. Under Article 103, obligations of agreements in their binding effect upon states
member-states shall prevail in case of concerned, as long as the functionaries have
conflict with any other international remained within their powers. International law
agreement including those concluded with continues to make no distinction between treaties
non-members. and executive agreements: they are equally
binding obligations upon nations. (BAYAN [Bagong
3. The treaty itself may expressly Alyansang Makabayan] v. Executive Secretary
extend its benefits to non-signatory states. Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000,
En Banc [Buena])
4. Parties to apparently unrelated
treaties may also be linked by the most- Q: Does the Philippines recognize the binding
favored nation clause. effect of executive agreements even without
the concurrence of the Senate or Congress?
§21, A.VII, 1987 Phil. Constitution Held: In our jurisdiction, we have recognized the
No treaty or international agreement shall be binding effect of executive agreements even
valid and effective unless concurred in by at least without the concurrence of the Senate or
2/3 of ALL the Members of the Senate. Congress. In Commissioner of Customs v. Eastern
Sea Trading (3 SCRA 351, 356-357 [1961]), we had
§20, A.VII, 1987 Phil. Constitution occasion to pronounce:
The President may contract or guarantee foreign
loans on behalf of the RP with the prior “x x x the right of the Executive to enter into
concurrence of the Monetary Board, and subject binding agreements without the necessity of
to such limitations as may be provided by law. subsequent Congressional approval has been
The MB shall, within 30 days from the end of confirmed by long usage. From the earliest days
every quarter of the calendar year, submit to the of our history we have entered into executive
Congress a complete report of its decisions on agreements covering such subjects as commercial
applications for loans to be contracted or and consular relations, most-favored-nation
guaranteed by the Government or government- rights, patent rights, trademark and copyright
owned and controlled corporations which would protection, postal and navigation arrangements
have the effect of increasing the foreign debt, and the settlement of claims. The validity of
and containing other matters as may be provided these has never been seriously questioned by our
by law. courts. " (BAYAN [Bagong Alyansang Makabayan] v.
Executive Secretary Ronaldo Zamora, G.R. No.
§4, A.XVIII, 1987 Phil. Constitution 138570, Oct. 10, 2000, En Banc [Buena])
All exiting treaties or international agreements
which have not been ratified shall not be renewed Q: An Executive Agreement was executed
or extended without the concurrence of at least between the Philippines and a neighboring
2/3 of ALL the Members of the Senate. State. The Senate of the Philippines took it
upon itself to procure a certified true copy of
§25, A.XVIII, 1987 Phil. Constitution the Executive Agreement and after deliberating
After the expiration in 1991 of the Agreement on it, declared, by a unanimous vote, that the
between the RP and the USA concerning the agreement was both unwise and against the
Military Bases, foreign military bases, troops, or best interest of the country. Is an Executive
facilities shall not be allowed in the Philippines Agreement binding from the standpoints a) of
except under a treaty duly concurred in by the Philippine law and b) of international law?
Senate and, when the Congress so requires, Explain. (2003 Bar)
ratified by a majority of the votes cast by the A: a) YES, from the standpoint of Philippine law,
people in a national referendum held for that the Executive Agreement is binding. According to
purpose, and recognized as a treaty by the other Commissioner of Customs v. Eastern Sea Trading,
contracting State. 3 S 351 [1961], the President can enter into an
Executive Agreement WITHOUT the necessity of
NOTE: This section prohibits, in the absence of a concurrence by the Senate.
treaty, the stationing of troops and facilities of
foreign countries in the Philippines. However, it b) YES, it is also binding from the standpoint of
DOES NOT INCLUDE the temporary presence in the international law. As held in Bayan V. Zamora,
Philippines of foreign troops for the purpose of a 342 S 449 [2000], in international law executive
66 PUBLIC INTERNATIONAL LAW 2008
agreements are equally binding as treaties uon In return, the President agreed to allow
the States who are parties to them. Additionally, American nuclear vessels to stay for short visits Notes:
under Article 2(1)(a) of the Vienna Convention on at Subic, and in case of vital military need, to
the Law of Treaties, whatever may be the store nuclear weapons at Subic and at Clark
designation of a written agreement between Field. A vital military need comes, under the
States, whether it is indicated as a Treaty, agreement, when hostile military forces
Convention or Executive Agreement is not legally threaten the sea-lanes from the Persian Gulf to
significant. Still it is considered a treaty and the Pacific.
governed by the international law of treaties.
The Nuclear Free Philippines Coalition comes to
Q: The President authorized the Secretary of you for advice on how they could legally
Public Works and Highways to negotiate and prevent the same agreement entered into by
sign a loan agreement with the German the President with the US government from
Government for the construction of a dam. The going into effect. What would you advice them
Senate, by a resolution, asked that the to do? Give your reasons. (Bar)
agreement be submitted to it for ratification. A: If the agreement is not in the form of treaty,
The Secretary of Public Works and Highways did it is not likely to be submitted to the Senate for
not comply with the request of the Senate. ratification as required in Article VII, Section 21.
(1994 Bar) It may not, therefore, be opposed in that branch
a) Under the Constitution, of the government. Nor a judicial review is
what is the role of the Senate in the feasible at this stage because there is no
conduct of foreign affairs? justiciable controversy. While Article VIII, Section
b) Is the president bound to 1, paragraph 2 states that judicial power includes
submit the agreement to the Senate for the duty of courts of justice to “determine
ratification? whether or not there has been a grave abuse of
discretion amounting to lack or excess of
A: jurisdiction on the part of any branch or
a) The Senate plays a instrumentality of the government,” it is clear
role in the conduct of foreign affairs, because that this provision does not do away with the
of the requirement in Section 21 Article VII of political question doctrine. It was inserted in the
the Constitution that to be valid and Constitution to prevent courts from making use of
effective, a treaty or international agreement the doctrine to avoid what otherwise are
must be concurred in by at least 2/3 of all justiciable controversies, albeit involving the
members of the senate. Executive Branch of the government during the
b) No, the President martial law period. On the other hand, at this
is not bound to submit the agreement to the stage, no justiciable controversy can be framed to
Senate for ratification. Under Section 20 justify judicial review. I would therefore advice
Article VII of the Constitution, only the prior the Nuclear Free Philippines Coalition to resort to
concurrence of the Monetary Board is the media to launch a campaign against
required for the President to contract foreign Agreement
loans on behalf of the Republic of the
Philippines. Subject Matter of Treaties
1) Political Issues
Q: In accordance with the opinion of the 2) Changes in National Policies
Secretary of Justice, and believing that it would 3) Involve International Agreements of a
be good for the country, the President enters Permanent Character
into an agreement with the Americans for an
extension for another five (5) years of their stay Subject Matter of EAs
at their military bases in the Philippines, in 1) Have transitory effectivity
consideration of: 2) Adjustment of details carrying out well-
a) A yearly rental of one billion US dollars, established national policies and traditions
payable to Philippine government in 3) Arrangements of temporary nature
advance; 4) Implementation of treaties, statutes, well
b) An undertaking on the part of the established policies.
American government to implement
immediately the min-Marshall plan for the Q: How does a treaty differ from executive
country involving ten billion US dollars in agreement?
aids and concessional loans, and A: An executive agreement is not a treaty in so
c) An undertaking to help persuade far as its ratification may not be required under
American banks to condone interests and the Constitution. However, the distinction is
other charges on the country’s outstanding purely municipal and has no international
loans. significance. From the standpoint of international
law, “treaties and executive agreement are alike
in that both constitute equally binding obligations
67 PUBLIC INTERNATIONAL LAW 2008
upon the nations.” (FB Sayre, 39 Columbia Law c) the reservation is incompatible with the
Review, p. 75, 1939) object and purpose of the treaty. Notes:
Form and Time of Reservation
An executive agreement is NOT a treaty. As such, Written statement or declaration recorded at the
concurrence by two-thirds vote (2/3) of all the time of signing or ratifying or acceding to the
members of the Senate is not necessary for it to treaty.
become binding and effective.
Objected Reservations
Q: Is VFA a treaty or a mere executive Parties to the treaty may object to the
agreement? reservations of a State entering the treaty. A
A: In the case of Bayan vs. Zamora, VFA was 1951 Advisory Opinion of the ICJ held that a
considered a treaty because the Senate concurred reserving State may be a party to a treaty
in via 2/3 votes of all its members. But in the notwithstanding that one or more parties to the
point of view of the US Government, it is merely convention, but not all, objects to its reservations
an executive agreement. and such reservations are not contrary to the
object and purpose of said convention.
Q: What is the implication if only the senate of REGISTRATION & PUBLICATION
the Philippines concur but not the senate of Article 102, UN Charter
USA? 1. Every treaty and every international agreement
A: None, it is only a matter of policy and the same entered into by any Member of the UN after the
is governed by their respective Municipal Law. present Charter comes into force shall as soon as
possible be registered with the Secretariat and
Q: Senate Bill No. 1234 was passed creating a published by it.
joint legislative-executive commission to give
on behalf of the Senate, its advice, consent and 2. No party to any such treaty or international
concurrence to treaties entered into by the agreement which has not been registered in
President. The bill contains the guidelines to accordance with the provisions of para.1 of this
be followed by the commission in the discharge Article may invoke that treaty or agreement
of its functions. Is the bill constitutional? (1996 before any organ of the UN.
Bar)
A: NO, the bill is not constitutional. The Senate ★ The treaty, however, remains valid although
cannot delegate its power to concur to treaties not registered and not published in the UN.
ratified by the President.
Entry into Force
Q: Can the House of Representatives take active Means the date of effectivity of a treaty as
part in the conduct of foreign relations, provided in the stipulations of the parties. In the
particularly in entering into treaties and absence of such stipulation, it is deemed in force
international agreements? (1996 Bar) as soon as the consent of ALL the parties are
A: NO. As held in US v. Curtiss Wright Export established.
Corporation 299 US 304, it is the President alone
who can act as representative of the nation in the Q: Are Treaties Self-Executing?
conduct of foreign affairs. Although the Senate A: Qualified answer. In international law, it self-
has the power to concur in treaties, the President executes from the time of its entry into force.
alone can negotiate treaties and Congress is However, there is NO absolute rule that treaties
powerless to intrude into this. However, if the are self-executing within the sphere of municipal
matter involves a treaty or an executive law. Some municipal laws require further steps
agreement, the HR may pass a resolution such as publication and promulgation before it
expressing its views on the matter. can produce legal effect.
Interpretation of Treaties
PNCC V. CA (1997)
A treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given
The principle of rebus sic stantibus neither fits in to the terms of the treaty in their context and in
with the facts of the case. Under this theory, the the light of its object and purpose. There are,
parties stipulate in the light of certain prevailing however, NO TECHNICAL RULES.
conditions, and once these conditions cease to
exist, the contract also ceases to exist. This CANONS OF INTERPRETATION
theory is said to be the basis of Article 1267 of the Generally regarded by publicists as applicable to
Civil Code, which provides: treaties consist largely of the application of
principles of logic, equity and common sense to
“ART. 1267. When the service has become so the text for the purpose of discovering its
difficult as to be manifestly beyond the meaning.
contemplation of the parties, the obligor may also
be released therefrom, in whole or in part.” TRAVAUX PREPARATOIRES
71 PUBLIC INTERNATIONAL LAW 2008
Preparatory works as a method of historical ★ State may expel aliens within its territory.
interpretation of a treaty. These works are Expulsion may be predicated on the ground Notes:
examined for the purpose of ascertaining the that the presence of the alien in the territory
intention of the parties. will menace the security of the State.
Expropriation of Foreign-Owned Property Art. 5. Within a third State a person having more
Western countries maintain that MIS requires: than one nationality shall be treated as if he had
a) expropriation must be for a public only one. Without prejudice to the application of
purpose; its law in matters of personal status and of any
b) it must be accompanied by payment of convention in force, a third State shall, of the
compensation for the full value of the nationalities which any such person possesses,
property that is prompt, adequate and recognize exclusively in its territory either the
effective. nationality of the country in which he is habitually
and principally resident or the nationality of the
73 PUBLIC INTERNATIONAL LAW 2008
▪ The charging of one State and the denial of disputes. This is NOT to be regarded as an
another of the dispute as charged, creates unfriendly act. Notes:
an international dispute as “there has thus
arisen a situation in which the two sides hold Tender of good office
clearly opposite views concerning the A tender of good office may be made by:
questions of the performance or non- a) Third State
performance of their treaty obligations. b) international organs such as the UN;
Confronted with such a situation, the Court or
must conclude that international disputes c) Individuals or eminent citizens of a
have arisen.” ICJ Reports 1950 third State.
These may include complete or partial Grotius advocated moderation in the conduct of
interruption of: hostilities for reasons of humanity, religion and Notes:
a) economic relations and of rail, sea, air, farsighted policy.
postal, telegraphic, radio, and other
means of communication; and Rules of War Obsolete
b) severance to the diplomatic relations. The radical change in the character of war, both
in scope and method, has rendered many of the
traditional rules of warfare obsolete, or at any
Article 42, UN Charter rate frightfully inadequate.
Should the SC consider that measures provided for
in Article 41 would be inadequate or have proved Sanctions of the laws of war
to be inadequate, it may take such action by air, Observance of the rules of warfare by belligerents
sea, or land forces as may be necessary to is secured through several means recognized by
maintain or restore international peace and international law:
security. Such action may include: 1) reprisals
a) demonstrations 2) punishment of war crimes committed by
b) blockade and enemy soldiers and other enemy subjects
c) other operations by air, sea, or land 3) protest lodged with the neutral powers
forces of Members of the UN. 4) compensation
act of force by one party done in animo c) by unilateral declaration – if the war
belligerendi. War results in the complete defeat or Notes:
unconditional surrender of a belligerent
Anglo-American Rule the formal end of the war depends on
Bound by a statement by the executive as to the decision of the victor.
when a state of war is commenced.
uti possidetis
Q: What are some kinds of non-hostile Each belligerent is regarded as legally
intercourse between the belligerents? entitled to such property as are actually in its
A: Among the kinds of non-hostile intercourse are possession at the time hostilities ceased.
flags of truce, cartels, passports, safe-conduct,
safeguards and license to trade. status quo ante bellum
Each of the belligerents is entitled to the
Q: By what agreements may hostilities be territory and property which it HAD
suspended between the belligerents? possession of at the commencement of the
A: Hostilities may be superceded by a suspension war.
of arms, an armistice, a cease-fire, a truce, or a Dictated Treaty
capitulation. This happens where the decisive victory of
one of the belligerents leads it to impose its
Suspension of Arms will on the other. Imposed by the victor.
It is the temporary cessation of hostilities by
agreement of the local commanders for such End of War NAVARRO VS. BARREDO
purposes as the gathering of the wounded and the Termination of war when used in private
burial of the dead. contracts refers to the formal proclamation
of peace by the US and not the cessation of
ARMISTICE hostilities between RP and Japan during the
It is the suspension of all hostilities within a WWII.
certain area (local) or in the entire region of the
war (general) agreed upon by the belligerent Q: What is the meaning or concept of uti
governments, usually for the purpose of arranging possidetis? (1977 Bar)
terms of peace. A: The problem concerning ownership of property
which have changed hands during the course of
CEASEFIRE the war are generally settled by the application of
It is the unconditioned stoppage of hostilities by the rule of uti possidetis, by which each
order of an international body like the Security belligerent is regarded as legally entitled to such
Council for the purpose of employing peaceful property as are actually in its possession at the
means of settling the conflict. time hostilities ceased.
7) Parachutists – those who bail out from Q: What are the core crimes in IHL?
aircrafts in distress. Must only be treated as A: The core crimes in IHL are genocide, crimes
POW. against humanity, war crimes and aggression.
These core crimes are specified in the Statues
8) Hospitals, hospital ships and medical units – of the ICC (or the Rome Statute for an ICC) which
a clear marking or a Red Cross to show their describes them as the most serious crimes of
status. concern to the international community as a
whole. These crimes are within the jurisdiction of
9) Food supplies and crops the ICC.
FORBIDDEN METHODS NOTE: Although the Philippines has signed but not
No Quarter – such orders implying that no yet ratified the Rome Statute establishing the ICC,
survivors are to be left after an attack. the ICC Statute’s and definitions of the core
crimes are authoritative statements for us since
Starvation they are practically lifted from customary
international law sources and from the Geneva
Reprisals – are not reprisals as a form of self- Conventions of 1949 and other treaties to which
help, instead, belligerent reprisals are of we are parties. (IHL: A Field Guide to the Basics,
a completely different type. These are The 2007 Metrobank Lecture on International
acts of vengeance by a belligerent Law, 22 Nov. 2007 by Associate Justice Adolfo S.
directed against groups of civilians or Azcuna)
POWs in retaliation of or response to an
attack by other civilians against the 1949 Geneva Convention III
belligerent. The rules of POW applies to prisoners of war who
are captured in a properly declared war or any
Perfidy on treachery – this includes: other kind of “armed conflict,” even if any of the
a) Improper use of white flag combatant powers do not recognize the existence
b) Feigning surrender or pretending to of a state of war and even though these conflicts
have been wounded or to have a are “not of an international character.”
civilian status
c) Using the uniform of the enemy
83 PUBLIC INTERNATIONAL LAW 2008
Q: Is guerilla warfare recognized under Q: Can the belligerent occupant impose and
International Law and may a captured guerilla collect taxes or contributions? Notes:
demand treatment afforded a prisoner of war A: YES. Under the Hague Regulations, the
under the 1949 Geneva Convention? Explain. occupant is empowered to collect taxes, dues and
A: Yes. Under Article 4 of the 1949 Geneva tolls, as far as possible in accordance with “the
Convention on Prisoners of War, guerilla warfare, rules of assessment and incidence in force,” and
which consists in hostilities conducted in territory he is bound to defray the “expenses of
occupied by the enemy by armed bodies of men administration” out of the proceeds.
who do not form part of an organized army, is
recognized. Guerillas are entitled to be treated Contributions – are money impositions on the
as prisoners of war provided they fulfill the inhabitants over and above such taxes.
following conditions:
1) They are commanded by a person Conditions on levying taxes:
responsible for his subordinates; 1) they must be for the needs of the army or
2) They have a fixed distinctive emblem local administration;
recognizable at a distance; 2) they can be imposed by written order of the
3) They carry arms openly; and Commander-in-Chief only, in
4) They conduct their operations in contradistinction to requisitions which may
accordance with the laws and custom of be demanded by the Commander in a
war. (1982 Bar) locality;
3) a receipt must be given to each contributor;
4) the levy must be made as far as possible, in
When POW should be returned accordance with the rules in existence and
Upon cessation of war or hostilities. However, the assessment in force for taxes.
POWs facing criminal trial may be detained until
the termination of the proceedings or Neutrality
punishment.
Neutrality Defined
When is a Territory Deemed Under Neutrality v. Neutralization
Military Occupation? Rights and Duties of Neutrals and Belligerents
Territory is deemed to be occupied when it is Passage of Belligerent Warships
placed as a matter of fact under the authority of Prohibition of Warlike Activities in Neutral
the hostile army. Territory
Neutral Asylum to Land and Naval Forces of
TAN SE CHIANG v. DIRECTOR OF POSTS Belligerent
Right of Angary
Belligerent occupation becomes an accomplished Blockade
fact the moment the government of the invaded Contraband
territory is rendered incapable of publicly Unneutral Service
exercising its authority and the invader is in a Right of Visitation
position to substitute and has substituted his own
authority for that of the legitimate government of Neutrality
the occupied territory. An attitude of impartiality adopted by third
States towards belligerents and recognized by the
NOTE: Belligerent occupation is different from belligerents, such attitude creating rights and
Military occupation. duties between the impartial States and the
belligerents.
Rights & Duties of a Belligerent Occupant
to continue orderly government Neutrality vs. Neutralization (1988 Bar)
to exercise control over the occupied Neutrality Neutralization
territory and its inhabitants. Obtains only during war A condition that
applies in peace and
NOTE: The belligerent occupant cannot compel war
the inhabitants to swear allegiance to him. A status created under A status created by
international law, by means of a treaty
CO KIM CHAN V. VALDEZ TAN KEH means of a stand on the
75 Phil 371 part of a state not to
side with any of the
His rights over the occupied territory are merely parties at war
that of administration; hence he cannot, while Brought about by a Cannot be effected by
the war continues, annex the territory or set it up unilateral declaration unilateral act only but
as an independent State. by neutral state must be recognized by
other states.
84 PUBLIC INTERNATIONAL LAW 2008
In the event that a neutral port or roadstead is NOTE: A neutral subject within the territory of a
used for repairs, the neutral state may allow it as belligerent is not entitled to indemnity from
long as such repairs are absolutely necessary to
85 PUBLIC INTERNATIONAL LAW 2008
Doctrine of Infection
Under the British and American practice, the
penalty for carriage of contraband would be
confiscation of the contraband cargo. Innocent
cargo belonging to the same owner would also be
subject to confiscation. Innocent cargo belonging
to another owner would be released, but without
compensation for delay and detention in the Prize
Court.
86 PUBLIC INTERNATIONAL LAW 2008
ACKNOWLEDGMENTS / ATTRIBUTIONS
THIS IS A PRODUCT OF LIBERTAS ET IUSTICIA 2007 BAR. The City Mayor issues an Executive Order
declaring that the city promotes responsible parenthood
COMPILED BY ITS ACADEMICS COMMITTEE 2007- and upholds natural family planning. He prohibits all
2008. ALTHOUGH THIS IS MAINLY OUTLINED FOR hospitals operated by the city from prescribing the use
PUBLIC INTERNATIONAL LAW CLASS UNDER ATTY. of artificial methods of contraception, including
EDWIN REY SANDOVAL, THIS MATERIAL MAY ALSO condoms, pills, intrauterine devices and surgical
BE OF GOOD USE UNDER OTHER PROFESSORS sterilization. As a result, poor women in his city lost
HANDLING THE SAME SUBJECT AS WELL AS THOSE their access to affordable family planning programs.
TAKING REVIEW SUBJECT ON POLITICAL AND Private clinics! however, continue to render family
PUBLIC INTERNATIONAL LAW. planning counsel and devices to paying clients.
a. Is the Executive Order in any way
constitutionally infirm? Explain.
THERE ARE DIFFERENT DISCUSSIONS WHICH WERE b. Is the Philippines in breach of any obligation
CULLED FROM AUTHORS ASIDE FROM ATTY. under international law? Explain.
SANDOVAL’S LECTURES AND CASES SUCH AS
SALONGA & YAP AND CRUZ. c. May the Commission on Human Rights order
the Mayor to stop the implementation of the
WE ENCOURAGE THE FREE CIRCULATION OF THIS Executive Order? Explain.
MATERIAL AMONGST THE RANKS OF STUDENTS,
BARRISTERS, PROFESSORS, LAWYERS, LEGAL
ENTHUSIASTS AND THE LIKE.
a. Is the Philippines under an obligation to extradite Lawrence? State the applicable rule and its rationale.
b. Assume that the extradition request was made after the Philippines adopted its anti-hacker legislation. Will
that change your answer?
2007 BAR. In 1993, historians confirmed that during World War II, "comfort women" were forced into serving the
Japanese military. These women were either abducted or lured by false promises of jobs as cooks or waitresses, and
eventually forced against their will to have sex with Japanese soldiers on a daily basis during the course of the war,
and often suffered from severe beatings and venereal diseases. The Japanese government contends that the "comfort
stations" were run as "onsite military brothels" (or prostitution houses) by private operators, and not by the Japanese
military. There were many Filipina "comfort women."
a. Name at least one basic principle or norm of international humanitarian law that was violated by the
Japanese military in the treatment of the "comfort women."
b. The surviving Filipina "comfort women" demand that the Japanese government apologize and pay them
compensation. However, under the 1951 San Francisco Peace Agreement -the legal instrument that ended
the state of war between Japan and the Allied Forces -all the injured states, including the Philippines,
received war reparations and, in return, waived all claims against Japan arising from the war. Is that a
valid defense?
c. The surviving Filipina "comfort women" sue the Japanese government for damages before Philippine courts.
Will that case prosper?