Public International Law

Texon, Sheena Leslie B.

Block 2B

How does rule from different sources come to be part of international law?

Sources of International law:

1. The rules of international law is one that has been given credence as such by the international
community of states: a) in the form of customary law or
b) by international agreement;
c) by derivation from general principles common to the major legal systems of the world.

2. The results of a Customary international law is from a general and consistent practice of states
followed by them from a sense of legal obligation.

3. The International agreements inacted laws for the state parties thereto and may lead to the creation of
customary international law which such agreements are intended for adherence of states.

4. In general principles are common to the major legal systems, even if not incorporated or reflected in
customary law or international agreements, it may be invoked as supplementary rules of international
law where it is appropriated. Therefore, the “sources” of international law are custom, treaties and
other international agreements, generally recognized principles of law, judicial decisions and teachings
of highly qualified and recognized publicists. We shall discuss these sources one by one.

Do all of these sources include positive law?

No,it does not include positive law but it includes Natural Law, The development of western tradition is from the
Natural Law that certain rights exist as a result of a law greater than positive or laws created by men.

Might any of them reflect natural law?

The development of western traditions was from the Natural Law view that certain rights exist as a result of a law
greater than positive or laws made by men. And this greater law flows from the nature of man which requires certain
immunities or liberties. This view flourished in the seventeenth century and provided a re-course against arbitrary
power. Much of what the Natural Law view held has already become part of customary or conventional law and has
served as a counterforce against a positivist emphasis on the importance of the state.

Under international law/VCLT, is there a difference between a State-Party and a signatory to a treaty insofar
as which one of them is legally obliged to follow all the provisions of a treaty in good faith?

There is a considerable difference between a State-Party and a signatory to a treaty. Under the Vienna Convention
on the Law of Treaties, a signatory state is only obliged to refrain from acts which would defeat the object and
purpose of a treaty. The Philippines is only a signatory to the Rome Statute and not a State-Party for lack of
ratification by the Senate. Thus, it is only obliged to refrain from acts which would defeat the object and purpose of
the Rome Statute. Any argument obliging the Philippines to follow any provision in the treaty would be premature.
And even assuming that the Philippines is a State-Party, the Rome Statute still recognizes the primacy of
international agreements entered into between States, even when one of the States is not a State-Party to the Rome
Statute.
A. Can foreign loan agreements with international financial institutions, such as with the World Bank,
partake of an executive or international agreement within the purview of Section 4 of R.A. No. 9184
(Procurement Law); Can the fundamental international law principle of pacta sunt servanda bind the
Philippines under Section 4 of R.A. No. 9184 as a borrower, to perform in good faith its duties and obligation
under the loan agreement and to comply with, or accord, primacy to, the WB Guidelines on the conduct and
implementation of the bidding/procurement process in question?

Any Treaty or International or Executive Agreement to which the GoP is a signatory affecting the subject matter of
the Act and this IRR shall be observed. In case of conflict between the terms of the Treaty or International or
Executive Agreement and this IRR, the former shall prevail. Unless the Treaty or International or Executive
Agreement expressly provides another or different procurement procedures and guidelines, R.A. 9184 and this IRR
shall apply to Foreign-funded Procurement of Goods, Infrastructure Projects, and Consulting Services by the GoP.

B. How can we express pacta sunt servanda in our national laws vis-à-vis our treaty obligations? In case of
conflict between our domestic tax law and international tax conventions and other bilateral agreements,
which will prevail?

According to the fundamental international law principle of pacta sunt servanda, which is in fact embodied in the
afore-quoted Section 4 of R.A. No. 9184, the RP, as borrower, bound itself to perform in good faith its duties and
obligation under Loan No. 7118-PH. Applying this postulate in the concrete to this case, the IABAC was legally
obliged to comply with, or accord, primacy to, the WB Guidelines on the conduct and implementation of the
bidding/procurement process in question. Loan Agreement is an executive agreement and is, thus, governed by
international law. Owing to this classification, the Government of the Philippines is therefore obligated to observe
its terms and conditions under the rule of pacta sunt servanda, a fundamental maxim of international law that
requires the parties to keep their agreement in good faith.

C. Explain the relationship between pacta sunt servanda and the DOCTRINE OF INCORPORATION.

The doctrine of incorporation, rules of international law form part of the law of the and land no further legislative
action is needed to make such rules applicable in the domestic sphere (Salonga & Yap, Public International Law,
1992 ed., p. 12). The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of international
law, requires the parties to a treaty to keep their agreement therein in good faith. The observance of our country's
legal duties under a treaty is also compelled by Section 2, Article II of the Constitution which provides that "[t]he
Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of
international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom,
cooperation and amity with nations." Under the doctrine of incorporation, rules of international law form part of the
law of the and land no further legislative action is needed to make such rules applicable in the domestic sphere
(Salonga & Yap, Public International Law, 1992 ed., p. 12).

D. Do treaties have the force and effect of law in our jurisdiction?

The change clarified the effect of the lack of concurrence to a treaty, that is, a treaty without legislative concurrence
shall not be valid and effective in the Philippines. The change of wording also reflected the dual nature of the
Philippines' approach in international relations. Under this approach, the Philippines sees international law and its
international obligations from two perspectives: first, from the international plane, where international law reigns
supreme over national laws; and second, from the domestic plane, where the international obligations and
international customary laws are considered in the same footing as national laws, and do not necessarily prevail over
the latter.13 The Philippines' treatment of international obligations as statutes in its domestic plane also means that
they cannot contravene the Constitution, including the mandated process by which they become effective in
Philippine jurisdiction.

E. What is the role of pacta sunt servanda in our baselines law and the UNCLOS?

The UNCLOS ruled as the overarching universal legal framework is also mentioned in Articles 293 and 311 on the
relation between UNCLOS and other sources of international law including conventions, international agreements
and customary international law. States emphasised in UNCLOS that any agreements between two or more state
parties of UNCLOS on the issues provided in UNCLOS must be compatible with UNCLOS; “the Convention shall
not alter the rights and obligations of State Parties which arise from other agreement compatible with this
Convention” (Article 311.2); agreement modifying or suspending the operation of provisions of this Convention
may not affect “the effective execution of the object and purpose of this Convention”, “the application of the basic
principles embodied herein” and “the enjoyment of other States Parties of their rights or the performance of their
obligations under UNCLOS” (Article 311.3); agreement expressly permitted and preserved by other articles of this
Convention are not affected (Article 311.5). Regarding the relations between UNCLOS and other sources of
international law, such as customary law, only rights and obligations arising from rules of international law
compatible with UNCLOS are recognised and applied by competent courts and arbitral tribunals under Part XV of
UNCLOS (Article 293.1).

F. Does the form of an international agreement – whether it is a treaty or an executive agreement – affect the
observance of pacta sunt servanda?

The classification of matters that may be covered by international agreements touched upon in the Eastern Sea
Trading was not istablished. There are no hard and fast rules on the propriety of entering, on a given subject, into a
treaty or an executive agreement as an instrument of international relations. The primary consideration in the
choice of the form of agreement is the parties' intent and desire to craft an international agreement in the form they
so wish to further their respective interests. Verily, the matter of form takes a back seat when it comes to
effectiveness and binding effect of the enforcement of a treaty or an executive agreement, as the parties in either
international agreement each labor under the pacta sunt servanda principle.

A. Explain the legal concept and context of DISCRIMINATION.

A public policy detest inequality and discrimination is beyond contention. Our Constitution and laws reflect the
policy against these evils. The Constitution8 in the Article on Social Justice and Human Rights exhorts Congress to
"give highest priority to the enactment of measures that protect and enhance the right of all people to human dignity,
reduce social, economic, and political inequalities." The very broad Article 19 of the Civil Code requires every
person, "in the exercise of his rights and in the performance of his duties, [to] act with justice, give everyone his due,
and observe honesty and good faith. International law, which springs from general principles of law, likewise
proscribes discrimination. General principles of law include principles of equity, i.e., the general principles of
fairness and justice, based on the test of what is reasonable. The Universal Declaration of Human Rights, the
International Covenant on Economic, Social, and Cultural Rights,  the International Convention on the Elimination
of All Forms of Racial Discrimination, the Convention against Discrimination in Education, the Convention (No.
111) Concerning Discrimination in Respect of Employment and Occupation — all embody the general principle
against discrimination, the very antithesis of fairness and justice. The Philippines, through its Constitution, has
incorporated this principle as part of its national laws.

B. Is the right to self-determination equivalent to a right to political separation?

All man has the right to be recognition everywhere as a person before the law. Those with diverse sexual
orientations and gender identities shall enjoy legal capacity in all aspects of life. Each person’s self-defined sexual
orientation and gender identity is integral to their personality and is one of the most basic aspects of self-
determination, dignity and freedom. No one shall be forced to undergo medical procedures, including sex
reassignment surgery, sterilization or hormonal therapy, as a requirement for legal recognition of their gender
identity. No status, such as marriage or parenthood, may be invoked as such to prevent the legal recognition of a
person’s gender identity. No one shall be subjected to pressure to conceal, suppress or deny their sexual orientation
or gender identity.

C. Is the right to self-determination of "peoples," pertain only to the entire population of a State, or does it
also pertain to a portion of the population? Cite the conventions containing this right.

Our International law has long recognized the right to self-determination of a person understood not merely as the
entire population of a State but also a portion thereof. In considering the question of whether the people of Quebec
had a right to unilaterally secede from Canada, the Canadian Supreme Court in REFERENCE RE SECESSION OF
QUEBEC had occasion to acknowledge that "the right of a people to self-determination is now so widely recognized
in international conventions that the principle has acquired a status beyond ‘convention' and is considered a general
principle of international law." Among the conventions referred to are the International Covenant on Civil and
Political Rights161 and the International Covenant on Economic, Social and Cultural Rights which state, in Article 1
of both covenants, that all peoples, by virtue of the right of self-determination, "freely determine their political status
and freely pursue their economic, social, and cultural development."

A. Cite one Constitutional provision referencing on the equality of States;

In Section 7 it is stated that  the State shall pursue an independent foreign policy. In its relations with other states,
the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-
determination.

B. Translate the legal maxim ‘par in parem non habet imperium’;

Par in parem non habet imperium ("equals have no sovereignty over each other") is a general principle
of international law, forming the basis of state immunity.Because of this principle, a sovereign state cannot exercise
jurisdiction over another sovereign state.

C. Is the principle on State immunity from suit (also called State non-suability) a derivative of the principle of
sovereign equality of States, or is it the other way around?

The restrictive application of State immunity is proper only when the proceedings arise out of commercial
transactions of the foreign sovereign, its commercial activities or economic affairs. Stated differently, a State may be
said to have descended to the level of an individual and can thus be deemed to have tacitly given its consent to b e
sued only when it enters into business contracts. It does not apply where the contract relates to the exercise of its
soverdgn functions.

D. Distinguish JURE IMPERII from JURE GESTIONIS.

According to the doctrine of restrictive state immunity, a state has immunity only in certain classes of acts.
A distinction can be drawn between jure imperii and jure gestionis. Essentially, the state is treated
like a normal litigant when it behaves like one and
it only has immunity when acting as a state. There is near unanimity that restrictive immunity should be
adopted in practice as it provides a remedy for aggreviated individuals while encouraging the growth of trade
and commerce. Each state may develop its own criteria for distinguishing between jure imperii and
jure gestionis acts, making the difference fragile.Under the doctrine of restrictive state immunity, a state has
immunity only in certain classes of acts. A distinction can be drawn between jure imperii (acts of sovereign nature,
immune) and jure gestionis (commercial acts, subject to jurisdiction of territorial sovereign). Essentially, the state is
treated like a normal litigant when it behaves like one and it only has immunity when acting as a state (compromise).
There is near unanimity that restrictive immunity should be adopted in practice as it provides a remedy for
aggreviated individuals while encouraging the growth of trade and commerce. Each state may develop its own
criteria for distinguishing between jure imperii and jure gestionis acts, making the difference fragile.

E. Suppose that a foreign State enters into a contract with a private party, like the maintenance contract for
the upkeep of the foreign embassy. Can it be construed per se as determinative of whether or not it is an act
jure imperii or jure gestionis?

The application of the doctrine of immunity from suit has been restricted to sovereign or governmental

activities ( jure imperii).The mantle of state immunity cannot be extended to commercial, private and proprietary
acts ( jure gestionis). As aptly stated by this Court (En banc) in US vs. Ruiz, The restrictive application of State
immunity is proper when the proceedings arise out of commercial transactions of the foreign sovereign, its
commercial activities or economic affairs. Stated differently, a State may be said to have descended to the level of
an individual and thus can be deemed to have tacitly given its consent to be used only when it enters into business
contracts. It does not apply where the contract relates to the exercise of its sovereign functions.
F. What does the Vienna Convention on Diplomatic Relations provide insofar as diplomatic agents are
concerned?

A “diplomatic agent” is the head of the mission or a member of the diplomatic staff of the mission; The person of a
diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State
shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or
dignity. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also
enjoy immunity from its civil and administrative jurisdiction, with exemptions.

G. When can you sue a State without its consent?

As stated in the law, a state may not be sued. But, if it consents, either expressly or impliedly, then it may be the
subject of a suit. There is express consent when a law, either special or general, so provides. On the other hand, there
is implied consent when the state "enters into a contract or it itself commences litigation." However, it must be
clarified that when a state enters into a contract, it does not automatically mean that it has waived its non-
suability. The State "will be deemed to have impliedly waived its non-suability [only] if it has entered into a contract
in its proprietary or private capacity. [However,] when the contract involves its sovereign or governmental
capacity[,] x x x no such waiver may be implied." "Statutory provisions waiving [s]tate immunity are construed in
strictissimi juris. For, waiver of immunity is in derogation of sovereignty."

H. What is the ACT OF STATE DOCTRINE? Are there parameters to the use of the act of state doctrine?
(Explain)

The act of state doctrine is one of the methods by which States prevent their national courts from deciding disputes
which relate to the internal affairs of another State, the other two being immunity and non-justiciability. It is an
avoidance technique that is directly related to a State’s obligation to respect the independence and equality of other
States by not requiring them to submit to adjudication in a national court or to settlement of their disputes without
their consent. It requires the forum court to exercise restraint in the adjudication of disputes relating to legislative or
other governmental acts which a foreign State has performed within its territorial limits. The parameters of the use
of the act of state doctrine were clarified in Banco Nacional de Cuba v. Sabbatino. There, the U.S. Supreme Court
held that international law does not require the application of this doctrine nor does it forbid the application of the
rule even if it is claimed that the act of state in question violated international law. Moreover, due to the doctrine’s
peculiar nation-to-nation character, in practice the usual method for an individual to seek relief is to exhaust local
remedies and then repair to the executive authorities of his own state to persuade them to champion his claim in
diplomacy or before an international tribunal.

A. Distinguish the functions of the diplomat and those of the international official

Diplomats, also known as Foreign Service Officers, create, preserve, and repair relationships between their nation
state and other countries. They often engage in complex dialogues and negotiations with international
representatives in order to protect their nation’s interests abroad, including economic, political, social, or cultural
views while international officials are the representatives of the Foreign Country which are governed either by the
law of the duty station or by the domestic law of the organization. They enjoy immunity from jurisdiction of local
courts even in respect of their private acts.

B. Under the General Convention on the Privileges and Immunities of the United Nations, does the UN enjoy
immunity from every form of legal process? If so, is there an exception?

Yes, but exceptions are always present, for immunities for personal benefit of the individuals themselves, but in
order to safeguard the independent exercise of their functions in connection with the United Nations. Consequently a
Member not only has the right but is under a duty to waive the immunity of its representative in any case where in
the opinion of the Member the immunity would impede the course of justice, and it can be waived without prejudice
to the purpose for which the immunity is accorded.

C. Do specialized agencies enjoy a similar immunity from every form of legal process? Does an international
official, in the discharge of his international functions, have immunity from local jurisdiction? What is the
status of the international official with respect to his private acts?

The specialized agencies, their property and assets, wherever located and by whomsoever held, shall enjoy
immunity from every form of legal process except in so far as in any particular case they have expressly waived
their immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution.
Under customary international law, diplomatic envoys are granted certain privileges and immunities from the
normal legal processes of the state to which they are accredited. The concept of diplomatic immunity constitutes one
of the oldest parts of international law, originating even before the rise of the modern state. Privileges and
immunities are accorded to the representatives of Members not for the personal benefit of the individuals
themselves, but in order to safeguard the independent exercise of their functions in connection with the United
Nations.

D. Explain the phrase "immunity from every form of legal process" as used in the UN General Convention on
the Privileges and Immunities of the United Nations.

The General Convention’s obligation to provide for alternative dispute settlement in case of the Organization’s
immunity from legal process can be regarded as an acknowledgment of the right of access to court as contained in
all major human rights instruments.

E. How does the World Trade Organization (WTO) function as an organization that expresses the sovereign
equality of States?

Economic integration is altering the role of the state and the concept of sovereignty in international law. Intensifying
economic interdependence has rendered sovereignty almost meaningless for an isolated state. However, the transfer
and pooling of sovereignty in a jointly designed and mutually acceptable legalistic international institution allows
state interests to be both respected and represented at the international level.

F. Is sovereignty limited by International Law and Treaties that we enter into? Explain.

International law has on a number of occasions limited the territorial sovereignty of states.  Settlements at the
conclusion of hostilities more often than not have determined frontiers and this has frequently been ratified by
international treaty.  At the end of WW2 the borders of the European states changed significantly as they had
previously at the end of WW1.  The tradition goes back very much earlier and the ever changing face of Europe
throughout the centuries testifies to the effects of many international treaties.International law has of course been
remarkably weak and vacillatiing when it comes to protecting territorial sovereignty.  The military expansion of the
Nazi's prior to the outbreak of WW2 is a classic example.  Britain and France failed to support Czechoslovakia when
Hitler annexed the Sudentenland in clear violation of international treaty.  Poland joined in the land grab seizing part
of the state it considered Polish territory.  

A. Could you cite a particular provision of UN Charter on the threat or use of force against
the territorial integrity or political independence of any state?

In Article 2 it is stated that all Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations.

B. Could you explain the “principle of distinction” in an armed conflict between

States?
According to the principle of distinction, all involved in the armed conflict must distinguish between the persons
thus defined (the combatants) and civilians. Combatants must distinguish themselves (i.e., allow their enemies to
identify them) from all other persons (civilians), who may not be attacked nor directly participate in the hostilities.

C. Briefly explain the nature of international humanitarian law and its standards in an
armed conflict between States.

The nature of international humanitarian law is the protection of persons who are not or are no longer participating
in the hostilities and restricts the means and methods of warfare. International humanitarian law is also known as the
law of war or the law of armed conflict.

D. Under our Constitution, under what provision can the use of force be justified?

In Article 4 of The Constitution it provides that: “The Congress, by a vote of two-thirds of both Houses in joint
session assembled, voting separately, shall have the sole power to declare the existence of a state of war.” Seems
straightforward enough but note that the only thing that Congress does is to declare a war already in “existence.”

E. Are mutual defense agreements between States consistent with this principle?

Article 1 states that, each party is to settle international disputes in a peaceful manner so that the international peace
is not threatened, and to refrain from the threat of the use of force in any manner that is inconsistent with the purpose
of the United Nations.

A. Under what circumstance could the individual person be a proper subject of international law?

The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be
individual responsibility: (a) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a
war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a
common plan or conspiracy for the accomplishment of any of the foregoing; (b) WAR CRIMES: namely, violations
of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or
deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-
treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property,
wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c) CRIMES
AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts
committed against any civilian population, before or during the war, or persecutions on political, racial or religious
grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in
violation of the domestic law of the country where perpetrated. Leaders, organizers, instigators and accomplices
participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crime
are responsible for all acts performed by any persons in execution of such plan.

B. Is the recognition of human rights under international law a product of treaty-making

or of customary law? Explain.

According to the customary international law, a state is obligated to treat foreign nationals in accordance with an
international standard of justice. That obligation simply did not exist in the early days of complete national
sovereignty over any individuals within the national territory. Those prevailing rules of customary law certainly
were not changed by statute, since no world legislature has ever existed that could change the rules of international
law.
C. Be able to explain the nature, legal history and context of human rights under
international law.

International human rights law lays down obligations which States are bound to respect. By becoming parties to
international treaties, States assume obligations and duties under international law to respect, to protect and to fulfil
human rights.  The obligation to respect means that States must refrain from interfering with or curtailing the
enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human
rights abuses. The obligation to fulfil means that States must take positive action to facilitate the enjoyment of basic
human rights. Through ratification of international human rights treaties, Governments undertake to put into place
domestic measures and legislation compatible with their treaty obligations and duties. The domestic legal system,
therefore, provides the principal legal protection of human rights guaranteed under international law. Where
domestic legal proceedings fail to address human rights abuses, mechanisms and procedures for individual and
group complaints are available at the regional and international levels to help ensure that international human rights
standards are indeed respected, implemented, and enforced at the local level.