Public International Law

Pre-Bar Notes 2018

PRE-BAR
NOTES 2018
By Jemy Gatdula* PUBLIC INTERNATIONAL LAW

Bali Package - essentially consists of ten past

agreements made at separate previous WTO
Ministerial Conferences and covers the areas of food
security, cotton, and preferential treatment for poorer
countries. It also contains provisions on the lowering of
tariffs and agricultural subsidies, the inclusion of which
nearly derailed the proceedings.
Thai Cigarettes - the Philippines got a well
deserved win in 2011 at the WTO in the dispute
Thailand – Customs and Fiscal Measures on
Cigarettes from the Philippines (docketed as
DS371). That case had to do with Thai taxes
imposed on imported cigarettes, with Philippine total
exports of our cigarettes significantly declining for
the two years prior to the filing of the complaint.
Clearly, the outcome of the case was quite important
considering that the livelihood of thousands of
Filipino farmers was at stake (for more details, see
wto.org).

ICSID - the Philippines has concluded two cases to

Buenos Aires - Ended with a number of ministerial
decisions, including on fisheries subsidies and e-
commerce duties, and a commitment to continue
negotiations in all areas.
date: Fraport AG Frankfurt Airport Services
Worldwide vs. Republic of the Philippines (docketed
as ARB/11/12) and Baggerwerken Decloedt En
Zoon NV vs. Republic of the Philippines (docketed
as ARB/11/27).

Trump Tariffs - His executive order imposing 25%
tariffs on steel and 10% on aluminum relied on the
Trade Expansion Act of 1962 and GATT Article
XXI.Hardest hit should have been Canada and Mexico
but they’re exempt from the tariffs. Also exempt
(temporarily), according to USTR Robert Lighthizer,
are Argentina, Australia, Brazil, South Korea, and the
EU. These, ironically, make up the bulk of US steel
imports. Prominent countries in the tariff list are China,
Russia, Taiwan, Japan, and India.
The Trans-Pacific Partnership - is an expanded
version of the 2005 Trans-Pacific Strategic
Economic Partnership Agreement and currently
includes as parties Australia, Brunei, Canada, Chile,
Japan, Malaysia, Mexico, New Zealand, Peru,
Singapore, Vietnam, and the United States. The
TPP is said to expand NAFTA provisions that favor
US domestic industries, as well as borrowing heavily
from the US-Korea FTA template.

*Jemy is a lawyer specializing in international economic law and the World Trade Organization, and also philosophy of law. He is the Secretary for the
School of Law and Governance of the University of Asia and the Pacific. He was 2009 Bar Examiner for Political Law and Public International Law and is an
opinions columnist for BusinessWorld. He is also the Executive Director of the Philippine Council for Foreign Relations and Vice-Chair for Jurisprudence and
Legal Philosophy at the Philippine Judicial Academy. Jemy read international law at Cambridge, on scholarship from the Cambridge Overseas Trust.

1
E-mail: jemygatdula@yahoo.com;
Blog: www.jemygatdula.blogspot.com. Also on Facebook and Twitter.
 PUBLIC INTERNATIONAL LAW PRE-BAR NOTES 2018
The Regional Comprehensive Economic
Partnership - is between the ASEAN members
(Philippines, Indonesia, Malaysia, Singapore,
Thailand, Brunei, Burma, Cambodia, Laos, Vietnam)
and Australia, China, India, Japan, South Korea, and
New Zealand. It was seen as combining two prior
trade proposals: the East Asian Free Trade
Agreement (that had ASEAN, China, Japan and
South Korea) and the Comprehensive Economic
Partnership (same line-up as EAFTA but with the
addition of Australia, India and New Zealand).
Philippine Competition Act - “applicable to
international trade having direct, substantial, and
reasonably foreseeable effects in trade, industry, or
commerce in the Republic of the Philippines,
including those that result from acts done outside the
Republic of the Philippines”. (see Sec. 3)
Justice Against Sponsors of Terrorism Act
(JASTA) - is a law passed by the United States
Congress that narrows the scope of the legal
doctrine of foreign sovereign immunity and amends
the United States Code in regards to civil claims
against a foreign state for injuries, death, or
damages from an act of international terrorism.
1984 UN Convention Against Torture: "torture"
means any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted
on a person for such purposes as obtaining from him
or a third person information or a confession,
punishing him for an act he or a third person has
committed or is suspected of having committed
or intimidating or coercing him or a third person, or
for any reason based on discrimination of any kind,
when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of
a public official or other person acting in an official
Jemy Gatdula E-mail: jemygatdula@yahoo.com;
www.jemygatdula.blogspot.com.
Blog:
Also on Facebook and Twitter.
capacity. It does not include pain or suffering arising
only from, inherent in or incidental to lawful
sanctions.”
Hors de Combat – see Protocol 1, Article 41,
Geneva Conventions: Safeguard of an enemy hors
de combat. A person who is recognized or who, in
the circumstances, should be recognized to be 'hors
de combat' shall not be made the object of attack. A
person is ' hors de combat ' if: (a) he is in the power
of an adverse Party; (b) he clearly expresses an
intention to surrender; or (c) he has been rendered
unconscious or is otherwise incapacitated by
wounds or sickness, and therefore is incapable of
defending himself; provided that in any of these
cases he abstains from any hostile act and does not
attempt to escape.
The UN Working Group of Experts on People of
African Descent Report - finding the United States
liable for reparations to African-Americans: “Having
listened to African-Americans in different parts of the
country, the Working Group considers that civil rights
laws are not being fully implemented, and even if
they are fully implemented, they are insufficient to
overcome and transform the institutional and
structural racial discrimination and racism against
people of African descent. Mass incarceration,
2
 PUBLIC INTERNATIONAL LAW PRE-BAR NOTES 2018

police violence, housing segregation, disparity in the Treaties and Executive Agreements - The US
quality of education, labour market segmentation, government, in order to resolve questions as to
political disenfranchisement and environmental whether an agreement is a treaty or an executive
degradation continue to have detrimental impacts on agreement, issued Department Circular No. 175,
people of African descent, despite the application of dated 3 December 1995, presently US State
civil rights laws." Department Foreign Affairs Manual (11 FAM 721.2),
which says executive agreements are:
Withdrawal from the ICC: Regardless of Senate 1) agreements which are made pursuant to or in
Res. 289, s. 2017, the president arguably has accordance with existing legislation or a treaty;
authority to unilaterally withdraw because: 2) agreements which are made subject to
congressional approval or implementation; or
The president has role as lead diplomatic
3) agreements which are made under and in
representative;
accordance with the President’s constitutional
He has authority to open or close diplomatic
power.
relationships with other countries;
He has authority anyway not to submit the treaty
Obergefell v. Hodges - is a landmark 2015 US
for senate concurrence;
Supreme Court decision on the recognition by Ohio
The ‘greater includes lesser’ doctrine would
of same-sex marriages validly established in other
indicate that if he had option not to include us in a
jurisdictions.
treaty then he should have option to undo entry
into treaty;
Hämäläinen v Finland, July 2014 - the ECHR
By analogy: president can nominate officials,
upheld that States can’t be forced to recognize same
which congress confirms, but president can
sex marriages.
afterward terminate that appointment;
The structure of the constitution;
The European court was unequivocal: European
Art. 127 of Rome Statute merely requires notice;
human rights law does not require countries to “grant
Art. 18 of Vienna Convention states that a treaty
access to marriage to same-sex couples.”
starts to apply rights upon signing itself.

Finally, the ECHR in Gas and Dubois made a crucial

point: in denying such same sex unions, no wrongful
discrimination was made.

As of December 2017, 29 countries recognize same

sex marriages: The Netherlands (2000), Belgium
(2003), Canada (2005), Spain (2005), South Africa
(2006), Norway (2009), Sweden (2009), Argentina
(2010), Iceland (2010), Portugal (2010), Denmark
(2012), Brazil (2013), England and Wales (2013),

Jemy Gatdula E-mail: jemygatdula@yahoo.com;

www.jemygatdula.blogspot.com.
Blog:
Also on Facebook and Twitter.
3
 PUBLIC INTERNATIONAL LAW PRE-BAR NOTES 2018
France (2013), New Zealand (2013), Uruguay
(2013), Luxembourg (2014), Scotland (2014), US
(2015), Greenland (2015), Finland (signed 2015,
effective 2017), Ireland (2015), Columbia (2016),
Australia, Austria, Malta, Germany (2017), Taiwan
(2018/2019)
Baselines - There was previously an existing
Baselines law (RA 3046, as amended by RA 5446,
enacted in 1961) that, along with PD 1596,
prescribed baselines expressly including Sabah and
Kalayaan Islands as part of Philippine territory
Nicaragua vs Columbia (2012, ICJ) – the ICJ
considered the definition in international law of
islands and associated maritime features, their
entitlements to maritime zones, and the impact of
these features upon maritime boundary delimitation
between two states with joint claims over a maritime
area.
A low-tide elevation creates no territorial sea,
exclusive economic zone (EEZ), or continental shelf,
and cannot be claimed as territory in its own right. It
is legally part of the seabed and its only real effect
on the maritime regime is that, if it lies within the 12
nautical mile territorial sea of another feature, it can
be considered the baseline from which that rock or
island’s entitlements are measured.
A rock, which is distinguished from an island by not
being able to sustain independent human habitation
or economic life, generates a territorial sea but no
EEZ or continental shelf.
A low-tide elevation cannot be made into a rock or
island—the relevant article of the UN Convention on
the Law of the Sea is explicit that the latter two must
be “naturally formed” above water at high-tide. And
Jemy Gatdula E-mail: jemygatdula@yahoo.com;
www.jemygatdula.blogspot.com.
Blog:
Also on Facebook and Twitter.
while no court has yet ruled on the matter, there is
broad consensus among legal experts that a rock
cannot be made into an island. What matters is the
original status of the feature, not what it is made into
Philippines vs. China - Ghanaian judge Thomas
Mensah is President of Tribunal (formerly Chris
Pinto of Sri Lanka). The other four judges are
Rudiger Wolfrum of Germany, Stanislaw Pawlak of
Poland, Jean-Pierre Cot of France and Alfred Soons
of the Netherlands.
Judgment: Philippines vs. China – a) To the
extent China’s nine-dash line is a claim of “historic
rights” to the waters of the South China Sea, it is
invalid; b) None of the features in the Spratly Islands
generates an EEZ, nor can the Spratly Islands
generate an EEZ collectively as a unit; c) China
violated the Philippines’ sovereign rights in its EEZ;
and d) China has aggravated and extended the
disputes through its dredging, artificial island-
building, and construction activities.
Benham Rise - A continental shelf is the edge of a
continent that lies under the ocean, extending from
the coastline of a continent to a drop-off point called
the shelf break. From the break, the shelf descends
toward the deep ocean floor in what is called the
continental slope. It may either be a minimum
(natural shelf) of 200 nm. or a maximum (legal shelf)
of 350 nm. or 100 nm. From the 2,500 metre isobath
(whichever is nearer). The area entitles same rights
as in EEZ
4