PUBLIC INTERNATIONAL LAW
I. GENERAL PRINCIPLES
A. International Law. Definition.
B. Basis of International Law.
C. Public International Law distinguished from:
1. Private International Law.
2. International Morality or Ethics.
3. International Comity.
4. International Diplomacy.
5. International Administrative Law.
D. Is International Law a true law?
E. Relationship with Municipal Law.
1. Monist vs. Dualist
2. Incorporation v. Transformation.
Sec. 2, Art. II, Philippine Constitution
Kuroda vs. Jalandoni, 83 Phil. 171
Laguna Lake Development Authority vs. Court of
Appeals, 231 SCRA 292
3. Conflict between International
Municipal Law.
F. Sources of International Law.
Art. 38, Statute of the International Court of Justice
Primary and Secondary Sources
Principle of Jus Cogens
II. SUBJECTS OF INTERNATIONAL LAW
A. Distinction between subject and object of
international law.
B. States.
Theories on Recognition:
Basic Rules on Recognition
Requirements for Recognition of Government
Tobar/Wilson Doctrine
Stimson Doctrine
Estrada Doctrine
Effects of Recognition
Belligerency. Recognition of Belligerency;
Conditions and Effects.
Extinction of States.
Principle of State Continuity.
People vs. Perfecto, 43 Phil. 887
Vilas vs. City of Manila, 229 U.S.
Classes of States.
Reference: Public International Law, Salonga and
Yap
PIL, Paras
ADMINISTRATIVE LAW
I. GENERAL PRINCIPLES
-Administrative Law. Definition. Scope.
-Kinds of Administrative Law
-Administrative Framework
-Administrative Bodies or Agencies. Definition.
-Creation and abolition of agencies
II. POWERS OF ADMINISTRATIVE BODIES
-Distinguish Express and Implied Powers,
Ministerial and Discretionary Powers, Mandatory
and Permissive Duties and Powers.
-Presumption of Regularity
Sanders vs. Veridiano II, 162 SCRA 88 (1988)
Blue Bar Coconut Phil. vs. Tantuico, 163 SCRA
716 (1988)
-Government not estopped by mistakes of agents /
Government not bound by errors of public officers.
Law and United States of America vs. Reyes, 219 SCRA 192
-Powers of Administrative Bodies.
1. Quasi-legislative or rule-making power;
2. Quasi-judicial or adjudicatory power; and
3. Determinative powers
-Quasi-legislative power.
-Kinds of Administrative Rules or Regulations and
Requisites for validity.
Olsen v. Aldanese, 43 Phil 64..
Land Bank v. Court of Appeals, 249 SCRA
Romulo, Mabanta Law Office v. Home
Development Mutual Fund
G.R. No. 131082, June 19, 2000
Association of Philippine Coconut Desiccators v.
Phil Coconut Authority
G.R. No. 110526, February 10, 1998
Lupangco v. Court of Appeals, 160 SCRA 848.
Tanada v. Tuvera, 146 SCRA 446
People v. Maceren, 79 SCRA 450.
-Determinative Powers. Enumerate.
-Quasi-judicial or adjudicatory power.
-Administrative due process. Requisites.
Ang Tibay v. CIR
Ute Paterok v. Bureau of Customs, 193 SCRA 132
Civil Service Commission v. Lucas, G.R. No.
127838, January 21, 1999
Lumiqued v. Exenea, G.R. No. 117565, November
18, 1997
Ocampo v. Office of the Ombudsman, G.R. No.
114683, January 18, 2000 Casimiro v. Tandog, G.R.
No. 146137, June 8, 2005
-Administrative Appeal and Review.
Araneta v. Gatmaitan, 101 Phil 328.
-Doctrine of res judicata.
Ysmael v. Deputy Executive Secretary, 190 SCRA
673
Board of Commissioners, CID v. Judge de la Rosa,
197 SCRA 853
Reference: Administrative Law, Law on Public
Officers and Election Laws, Agpalo
Administrative Law, J. Cruz
International Law
International law is the set of rules generally regarded and accepted as binding
in relations between states and nations. It serves as the indispensable
framework for the practice of stable and organized international relations.
International law differs from national legal systems in that it primarily
concerns nations rather than private citizens. National law may become
international law when treaties delegate national jurisdiction to supranational
tribunals such as the European Court of Human Rights or the International
Criminal Court. Treaties such as the Geneva Conventions may require
national law to conform.
International law is consent-based governance. This means that a state
member of the international community is not obliged to abide by
international law unless it has expressly consented to a particular course of
conduct. This is an issue of state sovereignty.
The term "international law" can refer to three distinct legal disciplines:
Public international law, which governs the relationship between provinces
and international entities. It includes these legal fields: treaty law, law of sea,
international criminal law, the laws of war or international humanitarian law
and international human rights law.
Private international law, or conflict of laws, which addresses the questions of
(1) which jurisdiction may hear a case, and (2) the law concerning which
jurisdiction applies to the issues in the case.
Supranational law or the law of supranational organizations, which concerns
regional agreements where the laws of nation states may be held inapplicable
when conflicting with a supranational legal system when that nation has a
treaty obligation to a supranational collective.
The two traditional branches of the field are:
jus gentium — law of nations
jus inter gentes — agreements between nations
International Law, unlike most other areas of law, has no defined area or
governing body, but instead refers to the many and varied laws, rules and
customs which govern, impact and deal with the legal interactions between
different nations, their governments, businesses and organizations, to include
their rights and responsibilities in these dealings.
The immense body that makes up international law encompasses a piecemeal
collection of international customs; agreements; treaties; accords, charters (i.e.
the United Nations Charter); protocols; tribunals; memorandums; legal
precedents of the International Court of Justice (aka World Court) and more.
Without a unique governing, enforcing entity, international law is a largely
voluntary endeavor, wherein the power of enforcement only exists when the
parties consent to adhere to and abide by an agreement.
Due to the diverse legal systems and applicable histories of different
countries, laws addressing international law include both common law (case
law) and civil law (statutes created by governing bodies). Their application
covers all the facets of national law, to include substantive law, procedure,
and remedies.
There are three main legal principles recognized in much of international law,
which are not required, but are based chiefly on courtesy and respect:
- Principle of Comity - in the instance where two nations share
common public policy ideas, one of them submits to the laws and judicial
decrees of the other.
- Act of State Doctrine - respects that a nation is sovereign in its
own territory and its official domestic actions may not be questioned by the
judicial bodies of another country. It dissuades courts from deciding cases that
would interfere with a country’s foreign policy.
- Doctrine of Sovereign Immunity - deals with actions brought in the
court of one nation against another foreign nation and prevents the sovereign
state from being tried in court without its consent. In the U.S., this is governed
by the Foreign Sovereign Immunities Act (FSIA) of 1976.
To be determined a sovereign state a nation must run its own government,
with its own territory and population.
There are both national laws and international agreements which
govern/regulate international business transactions, which include
investments, offshore banking, contracts, imports/exports, tariffs, dumping,
trade and more.
Although there is no definitive governing body overseeing international law,
the United Nations is the most widely recognized and influential international
organization and the International Court of Justice (ICJ) is its judicial
counterpart.
International law may further be broken down as public or private. Public
International law covers the rules, laws and customs that govern and monitor
the conduct and dealings between nations and/or their citizens. The UN deals
largely with public international law. Private International law (Conflict of
laws) handles disputes between private citizens of different nations.
The Seven (7) Principles of International Law Concerning Friendly Relations
and Cooperation Among States in Accordance with the Charter of the United
Nations
The United Nation's "Declaration on the Principles of International Law
Concerning Friendly Relations and Cooperation Among States in Accordance
with the Charter of the United Nations", adopted by the UN General
Assembly, thru Resolution No. 2625 (XXV) on October 24, 1970, after ten
(10) years of work and study, contain the following seven (7) basic principles
of international law:
"1. The principle that states 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;
"2. The principle that states shall settle their international disputes by peaceful
means in such a manner that international peace and security and justice are
not endangered;
"3. The duty not to intervene in matters within the domestic jurisdiction of any
state, in accordance with the Charter;
"4. The duty of states to cooperate with one another in accordance with the
Charter;
"5. The principle of equal rights and self-determination of peoples;
"6. The principle of sovereign equality of states; and
"7. The principle that states shall fulfill in good faith the obligation assumed
by them in accordance with the Charter." (cf. fifth (5th) Introductory Clauses
of the "Declaration" in Merlin M. Magallona, 96).
Functions of International Law
Previously, the functions of the DIP only amounted to regulate relations
between States. Today, as stated by Vergara, can be highlighted the following
functions:
* To establish the rights and duties of subjects of the international community.
* Promote human rights
* Ensure universal peace.
* To regulate relations between states and states with other subjects of
international law.
* Regulate the competence of international organizations.
* Provide DIP subjects for not seeking peaceful solutions to the war,
subjecting them to arbitration (legal method where two states in conflict
appoint an arbitrator to resolve their disputes.) Or other methods of peaceful
nature.
Currently, the role of international law goes beyond regulating relations
between states, their role has come to the field agency, with the birth of
international organizations and specialized agencies were created with the aim
of establishing political cooperation, economic and international management
and also the awareness that states have taken the need for a global society
organized.
Relationship between public international law and domestic law of states.
Relates primarily to study the scope and the problem of the relationship
between international law and domestic law, taking into account that both are
coercive orders. In a single state can coexist domestic legal norms and
international law, we refer to them as follows:
In trying to determine the relationship of international law with domestic law,
there are two theories: The Dualism and monism, which deal with the problem
consistently.
Dualism.
Part of the idea that international law and state law are two separate legal
systems, separated (not part of each other) which are never merge and
therefore should not be a conflict between them, since both jurisdictions have
different characteristics. For example:
* They have different sources and different content so as the domestic law
applicable on the unilateral will of the state, the Department of the common
will of many states.
* Diversity of subjects.
* The target audience is different. In domestic law rules are aimed at
individuals in their mutual relations, either among themselves or between the
individual and the state, and DIP are addressed to States, international
organizations and other subjects of law.
* National laws retain their binding force in domestic law even when in
opposition to the rules of the DIP, among others.
Rousseau, who participated in this theory, considered that “international law
and domestic law systems were equally valid, but no way could be confused.”
Anzilotti Triepel and also representatives of this position argue that “although
there is some relationship between the two legal systems, these are two
separate systems.”
It is not possible to speak of International Standards that are the product of
internal rules, or vice versa, to affect the one above the other in their
respective binding value.
For followers of this movement within the State can only regulate the
domestic law and that international law applies only to relations between
states, must be transformed into national law to have efficacy.
In the case of Venezuela, can be seen that the Constitutions of 1,864, 1,874,
1881 and 1893 in their respective articles noted that international law was part
of domestic law, as such remained in the Constitution of 1901, then in those
1904 and 1909, adding that international law can not be invoked when its
provisions are contrary to the constitution and laws of the Republic. However,
since the Constitution of 1914 omitted any reference to the relations between
international and domestic law and the problem or how international law is
incorporated into domestic law, if it occurs automatically or requires its
transformation into national law in order to be enforceable.
(Definition based on the opinion of Fermin Toro Jimenez, Charles Rousseau,
Triepel and Anziolotti)
Monism.
Argues that the Department and the law can not be two separate systems with
each other, ie, proclaims the unity of all areas of law to a single integrated
system the law of the States, since in its legal system are identical nature
because their purposes and audiences are the same, therefore the rules of DPI
can be applied automatically within a state and to compel individuals and
organs of state to meet these standards, provided there is a correlation between
DIP laws and domestic laws of the state, in other words, there can be no
treaty, a law between states (or other subjects of Public International Law)
that contradict the supreme law or specific laws of either party since it
autoderogaria, would be void (invalid) or one of the two would have to be
modified. There is the reason for the relationship or function of both.

Miguel D’Stefano (p. 8-9), tier construction divides as follows:
“…… The National and International Law are part of a unitary legal system,
within which there are two ways:
* The theory of the primacy of constitutional law or monist, international law
reduces a part of domestic law, recognizing the primacy of national law on the
international (German lawyers widespread early last century).
* The theory of international or monist international primacy, which affirms
the primacy of international law over national law and that in turn is divided
into two streams:
* The radical monism (Kelsen, Scelle), arguing that no law is possible as
opposed to international law, ipso facto void suffer (which reflects the
imperialist thinking, because states engaged role in the development of
international law will be in a position to dominate the less powerful states,
reaching to build their domestic law.)
* From monism (Verdross, Lauterpach and others), holding that the law with
the international respesto is not zero and requires the appropriate state
authorities. These domestic laws are an infringement and can be challenged by
the procedures of international law.
Basis of International Law
The International Court of Justice established by the Charter of the United
Nations as the principal judicial organ of the United Nations shall be
constituted and shall function in accordance with the provisions of the present
Statute. (Article 1 of Statue of the International Court of Justice)
Article 38 of STATUTE OF THE INTERNATIONAL COURT OF JUSTICE
1. The Court, whose function is to decide in accordance with international law
such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings
of the most highly qualified publicists of the various nations, as subsidiary
means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex
aequo et bono ("according to the right and good" or "from equity and
conscience"), if the parties agree thereto.
The Rome Statute of the International Criminal Court (often referred to as
the International Criminal Court Statute or the Rome Statute) is the treaty that
established the International Criminal Court (ICC). It was adopted at a
diplomatic conference in Rome on 17 July 1998 and it entered into force on 1
July 2002. As of 1 February 2012, 121 states are party to the statute. Among
other things, the statute establishes the court's functions, jurisdiction and
structure.
Under the Rome Statute, the ICC can only investigate and prosecute the core
international crimes (genocide, crimes against humanity, war crimes and the
crime of aggression) in situations where states are unable or unwilling to do so
themselves. The court can investigate crimes only in states that signed the
Rome Statute unless authorized by the U.N. Security Council.
ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT
Article 21: Applicable law
1. The Court shall apply:
(a) In the first place, this Statute, Elements of Crimes and its Rules
of Procedure and Evidence;
(b) In the second place, where appropriate, applicable treaties and
the principles and rules of international law, including the established
principles of the international law of armed conflict;
(c) Failing that, general principles of law derived by the Court from
national laws of legal systems of the world including, as appropriate, the
national laws of States that would normally exercise jurisdiction over the
crime, provided that those principles are not inconsistent with this Statute and
with international law and internationally recognized norms and standards.
2. The Court may apply principles and rules of law as interpreted in its
previous decisions.
3. The application and interpretation of law pursuant to this article must
be consistent with internationally recognized human rights, and be without
any adverse distinction founded on grounds such as gender as defined in
article 7, paragraph 3, age, race, colour, language, religion or belief, political
or other opinion, national, ethnic or social origin, wealth, birth or other status.
Sources of international law are the materials and processes out of which the
rules and principles regulating the international community are developed.
They have been influenced by a range of political and legal theories. During
the 19th century, it was recognised by legal positivists that a sovereign could
limit its authority to act by consenting to an agreement according to the
principle pacta sunt servanda. This consensual view of international law was
reflected in the 1920 Statute of the Permanent Court of International Justice,
and preserved in Article 38(1) of the 1946 Statute of the International Court of
Justice.
Article 38(1) is generally recognised as a definitive statement of the sources of
international law. It requires the Court to apply, among other things, (a)
international conventions "expressly recognized by the contesting states", and
(b) "international custom, as evidence of a general practice accepted as law".
To avoid the possibility of non liquet, sub-paragraph (c) added the
requirement that the general principles applied by the Court were those that
had been "the general principles of the law recognized by civilized nations".
As it is states that by consent determine the content of international law, sub-
paragraph (d) acknowledges that the Court is entitled to refer to "judicial
decisions" and the most highly qualified juristic writings "as subsidiary means
for the determination of rules of law".
On the question of preference between sources of international law, rules
established by treaty will take preference if such an instrument exists. It is also
argued however that international treaties and international custom are sources
of international law of equal validity; this is that new custom may supersede
older treaties and new treaties may override older custom. Certainly, judicial
decisions and juristic writings are regarded as auxiliary sources of
international law, whereas it is unclear whether the general principles of law
recognized by 'civilized nations' should be recognized as a principal or
auxiliary source of international law.
It may be argued that the practice of international organizations, most notably
that of the United Nations, as it appears in the resolutions of the Security
Council and the General Assembly, are an additional source of international
law, even though it is not mentioned as such in Article 38(1) of the 1946
Statute of the International Court of Justice. Article 38(1) is closely based on
the corresponding provision of the 1920 Statute of the Permanent Court of
International Justice, thus predating the role that international organizations
have come to play in the international plane. That is, the provision of Article
38(1) may be regarded as dated, and this can most vividly be seen in the
mention made to 'civilized nations', a mentioning that appears all the more
quaint after the decolonization process that took place in the early 1960s and
the participation of nearly all nations of the world in the United Nations.
It is also possible, though less common, for a treaty to be modified by
practices arising between the parties to that treaty. The other situation in
which a rule would take precedence over a treaty provision would be where
the rule has the special status of being part of the jus cogens.
Public International Law (governs the relationship between
provinces and international entities. It includes these legal fields: treaty law,
law of sea, international criminal law, the laws of war or international
humanitarian law and international human rights law.)

Public international law concerns the structure and conduct of sovereign

states; analogous entities, such as the Holy See; and intergovernmental
organizations. To a lesser degree, international law also may affect
multinational corporations and individuals, an impact increasingly evolving
beyond domestic legal interpretation and enforcement. Public international
law has increased in use and importance vastly over the twentieth century, due
to the increase in global trade, environmental deterioration on a worldwide
scale, awareness of human rights violations, rapid and vast increases in
international transportation and a boom in global communications.

The field of study combines two main branches: the law of nations (jus
gentium) and international agreements and conventions (jus inter gentes),
which have different foundations and should not be confused.

Public international law should not be confused with "private international

law", which is concerned with the resolution of conflict of laws. In its most
general sense, international law "consists of rules and principles of general
application dealing with the conduct of states and of intergovernmental
organizations and with their relations inter se, as well as with some of their
relations with persons, whether natural or juridical."

Public International law covers the rules, laws and customs that govern and
monitor the conduct and dealings between nations and/or their citizens. The
UN deals largely with public international law. Private International law
(Conflict of laws) handles disputes between private citizens of different
nations.

Private International Law (conflict of laws, which addresses

the questions of (1) which jurisdiction may hear a case, and (2) the law
concerning which jurisdiction applies to the issues in the case.)

A set of procedural rules that determines which legal system and which
jurisdiction apply to a given dispute. The rules typically apply when a legal
dispute has a "foreign" element such as a contract agreed to by parties located
in different countries, although the "foreign" element also exists in multi-
jurisdictional countries such as the United Kingdom, the United States,
Australia and Canada.

The term conflict of laws itself originates from situations where the ultimate
outcome of a legal dispute depended upon which law applied, and the
common law courts manner of resolving the conflict between those laws. In
civil law, lawyers and legal scholars refer to conflict of laws as private
international law. Private international law has no real connection with public
international law, and is instead a feature of local law which varies from
country to country.

The three branches of conflict of laws are:

Jurisdiction – whether the forum court has the power to resolve the dispute at
hand
Choice of law – the law which is being applied to resolve the dispute
Foreign judgments – the ability to recognize and enforce a judgment from an
external forum within the jurisdiction of the adjudicating forum