PUBLIC INTERNATIONAL LAW

( 2024 EDITION )

CONCEPT

Public International Law is a body of principles, norms, and processes which VERSUS PHILIPINE DOMESTIC LAW
regulate the relations of States and other international persons, and governs
their conduct affecting the interests of the international community of States as
a whole. How International Law Becomes part of Philippine Law

Private International Law is the body of rules of the domestic law of a State
that is applicable when a legal issue contains a foreign element, and it has to be
decided whether a domestic rule should apply foreign law or relinquish
jurisdiction to a foreign court.
1. Doctrine of Incorporation: ThePhilippines adopts the
―generally accepted principles of international law‖ (customary
international law) as part of the law of the land (Sec. 2, Art. II,
1987 Constitution). They are deemed as national law whether or
not they are enacted as statutory or legislative rules.

2. Doctrine of Transformation: Treaties or international

agreements shall become valid and effective upon concurrence by
Public International Law Private International Law at least 2/3 of all the Members of the Senate (Sec. 21, Art. VII,
Nature 1987 Constitution). These rules of international law are not part
International in nature National or municipal in of municipal law unless they are transformed via legislation.
character
Sources
1. Treaties and international Domestic laws for legal issues
conventions containing foreign elements Special Case for the presence of certain foreign troops in the
2. Customary international law Philippines(Sec. 25, Art. XVIII, 1987 Constitution)- After the expiration in
3. General principles of law (Art. 1991 of the Agreement between the Republic of the Philippines and the United
38(1), ICJ Statute) States of America concerning Military Bases, foreign military bases, troops, or
Subject facilities shall not be allowed in the Philippines except under a treaty duly
concurred in by the Senate and, when the Congress so requires, ratified by a
1. States; Individual (private persons)
majority of the votes cast by the people in a national referendum held for that
2. International organizations;
purpose, and recognized as a treaty by the other contracting State.
3. Individuals

Two Special Types of Obligations under Public International Law:

1. Obligations Erga Omnes- ―obligations of a State towards the

Philippine Domestic Law in Public International Law
international community as a whole,‖ which are the ―concern of
all States‖ and for whose protection all States have a ―legal
interest‖.
GR: A State cannot invoke its own national law to resist an international claim
or excuse itself from breach of duty under international law (Art. 6, VCLT; Art.
Erga Omnes literally means ―flowing to all.‖
32,Articles on State Responsibility (ASR)).
Standing to Bring Suit: Other States have standing to bring a
A party may not invoke the provisions of its internal law as justification for its
claim to the International Court of Justice (ICJ) or other
failure to perform a treaty. This rule is without prejudice to article 46 (Art. 27,
international judicial institution in relation to a dispute
VCLT).
concerning compliance with that obligation (Art. 4, IDI
Resolution).

2. Jus Cogens- A jus cogens is a norm accepted and recognized by

XPN: A State may invoke the fact that its consent to be bound by a treaty has
the international community of States as a whole as a norm from
been expressed in violation of a provision of its internal law regarding
which no derogation is permitted and which can be modified only
competence to conclude treaties as invalidating its consent if that violation was
by a subsequent norm of general international law having the
manifest and concerned a rule of its internal law of fundamental importance
same character(Art. 53 of the Vienna Convention on the Law of
(Art. 46, VCLT).
Treaties (VCLT))

Jus Cogens is also known as a peremptory norm of general

international law.
Q: Is state sovereignty absolute? (2006 BAR)
A: State sovereignty is not absolute. It is subject to limitations imposed by
membership in the family of nations and limitations imposed by treaty stipulations
(Tanada v Angara, 272 SCRA 18, 1997)

Concept of Ex Aequo et Bono (Article 38 (2), ICJ Statute)

This means, literally, ―what is equitable and good.” It denotes that a court
may decide a case on the basis of justice and equity, and not be bound by
technical legal rules.
4BLUE 95: The court may apply this standard to decide a case when the parties
to the dispute agree thereto (Art. 38(2), ICJ Statute). However, this should not
be confused with the ability of the ICJ to apply equitable principles in a case.
Q: State A and State B, two sovereign states, enter into a 10-year mutual defense
treaty. After five years, State A finds that the more progressive State B did not go to
the aid of State A when it was threatened by its strong neighbor State C. State B
reasoned that it had to be prudent and deliberate in reacting to State C because of their
existing trade treaties. What is the difference between the principles of pacta sunt
servanda and rebus sic stantibus in international law? (2017 BAR)
A: Pacta sunt servanda means that every treaty in force is binding upon the States who
are parties to it and States must perform their obligation in good faith (Deutsche Bank
AG Manila Branch v. Commissioner of Internal Revenue, G.R. No. 188550, August
19, 2013, 704 SCRA 216). Rebus sic stantibus means that a fundamental change of
circumstances, which occurred with regard to those existing at the time of the
conclusion of a treaty and which was not foreseen by the parties may not be invoked
for withdrawing from a treaty unless their existence constituted an essential basis of
the consent of the parties and their effect is to radically transform the extent of the
obligations still to be performed Political Law 124 (Article 62 of the Vienna
Convention on the Law of Treaties).

Q: How is state sovereignty defined in International Law? (2006 BAR)

A: Sovereignty signifies the right to exercise the functions of a State in regard to a
portion of the globe to the exclusion of any other State. It is the principle of exclusive
competence of a State in regard to its own territory (The Island of Las Palmas Case, 2
Report of International Arbitration Awards 839 [1928]).
ALTERNATIVE ANSWER: State sovereignty is the ability of a state to act without
external controls on the conduct of its affairs (Fox, Dictionary of International and
Comparative Law, p. 294).

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SOURCES OF INTERNATIONAL LAW

1. ARTICLE 38, INTERNATIONAL COURT OF JUSTICE STATUTE
1. The Court, whose function is to decide in accordance with
international law such disputesas are submitted to it, shall apply:
a. international conventions, whether general or
particular, establishing rules expressly recognized
by the contesting states(CONVENTIONAL
INTERNATIONAL LAW);
b. international custom, as evidence of a general
practice accepted as law(CUSTOMARY
INTERNATIONAL LAW);
c. the general principles of law recognized by
civilized nations (GENERAL PRINCIPLES OF
LAW);
d. subject to the provisions of Article59, judicial
decisions and the teachings of the most highly
qualified publicists of the various nations
(JUDICIAL DECISIONS AND TEACHINGS),
assubsidiary means for the determination of rules of
law.
no state decisis-The decision of the Court has no
binding forceexcept between the parties and in
respect of that particular case(Article 59, ICJ
Statute)
2. This provision shall not prejudice the power of the Court to
decide a case ex aequo et bono, if the parties agree thereto.
1A.PRIMARY SOURCES
1. CONVENTIONAL INTERNATIONAL LAW
Definition of Treaty- A treaty is an international agreement concluded
between states in written form and governed by international law, whether
embodied in a single instrument or in two or more related instruments and
whatever its particular designation‖ (Art. 2(1)(a), VCLT).
Reservations to Treaties- A reservation is a unilateral statement, however
phrased or named, made by a State, when signing, ratifying, accepting,
approving or acceding to a treaty, whereby it purports to exclude or to modify
the legal effect of certain provisions of the treaty in their application to that
State (Art. 2 (d), VCLT);
General Principles on Reservations
1. Generally they are allowed when the State is signing, ratifying,
accepting, approving or acceding to a treaty, unless they are (1)
Prohibited by the treaty (2) Only specified reservations are
allowed by the treaty or (3) The reservation is incompatible with
the object and purpose of the treaty (Art. 19, VCLT).
2. To be considered binding on the other contracting state to the
treaty, that State must accept the reservation. A reservationis
presumed to be accepted. A reservation is deemed unaccepted
when another contracting state objects. (Art. 20, VCLT)
Grounds for Terminating a Treaty(Articles 46-53 and 60-62 of VCLT)
1. Provisions of Internal Law RegardingCompetence to Conclude
Treaties
2. Specific Restrictions on Authority toExpress Consent of a State
3. Error
4. Fraud
5. Corruption of a Representative of a State
6. Coercion of a Representative
7. Coercion of a State by Threat or Use ofForce
8. Treaties Conflicting with Jus Cogens
9. Termination or Suspension of a Treaty as a Consequence of its
Breach
10. Supervening Impossibility of Performance
11. Fundamental Change of Circumstances

Requisites
1. Written Form
2. Between States 2. CUSTOMARY INTERNATIONAL LAW (CIL)
3. Governed by international Law
Definition- General Practice Accepted as law (Art. 38 (1) (b), ICJ Statute).

Basic Principles of Treaties Elements

1. State Practice
1. The primary body of law governing treaties is the Vienna 2. Opinio Juris
Convention on the Law of Treaties, which is considered binding
as Customary International law. Before a norm may become customary international law binding on all States,
2. It is based on consent there must be state practice and opinio juris sive necessitates.
a. Treaty obligation is based onconsent. No state may
be bound by a treaty obligation unless it has so State Practice- The practice must be consistent and general. Consistency
consented (Art. 34, VCLT). requires substantial uniformity and not necessarily complete uniformity in
b. Consent is Manifested by: signature, exchange of practice. Generality does not require universality.
instruments constituting a treaty, ratification,
acceptance, approval or accession, or by any other This means that the practice is virtually uniform and extensive and established,
means if so agreed. (Art. 11, VCLT) widespread,consistent, representative (good number of states).
3. Pacta Sunt Servanda-Every treaty in force is binding upon the State practice means that it pertains to the actions of a STATE only, not of
parties to it and must be performed by them in good faith (Art. individuals.
26, VCLT).
Opinio Juris- This refers to the belief on the part of states that a particular
4. Generally Not Binding on Third States, i.e. non-contracting practice is required by law, and not because of courtesy or political expediency
parties. (i.e. the State acts in such a manner because it believes it is obligated to do so).

GR: A treaty does not create either obligations or rights for a

third State without its consent (Art. 34, VCLT).
XPNs:
a. When the third party accepts a provision
establishing an obligation for that third party. (Art.
35, VCLT)
b. When the third party accepts a right provided for
and exercises such right in accordance with the
conditions established in the treaty. (Art. 36, VCLT)
5. Treaties are Non-Retroactive
4BLUE 95 NOTE: Unless a different intention appears from the
treaty or is otherwise established, its provisions do not bind a
party in relation to any act or fact which took place or any
situation which ceased to exist before the date of the entry into
force of the treaty with respect to that party (Art. 28, VCLT).
Binding Effect of CIL
GR: Customary International Law is binding on all states.
XPN: Persistent Objector - When a State has continuously objected to a new
customary norm at the time when it is yet in the process of formation, by such
persistent objection the norm will not be applicable as against that state.
Duality of Norms- It is possible for a norm of international law to exist both as
a customary norm and a conventional norm(e.g. prohibition against the use
of force). Such norms are said to be of dual character.
Norms of dual character come into being when:
1. a treaty provision simply restates acustomary norm;
2. a treaty provision constitutes evidence ofcustom; or
3. a treaty provision crystallizes into acustomary norm.

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Philippine Practice- The Supreme Court has identified the following 2. EFFECT OF UNITED NATIONS DECLARATIONS, SECURITY
customary norms: COUNCIL RESOLUTIONS

1. Rules and principles of land warfare and ofhumanitarian law
under the Hague Convention and the Geneva Convention.
2. Pacta sunt servanda.
3. Human rights as defined under the Universal Declaration of
Human Rights.
4. The principle of restrictive sovereign immunity.
5. The principle in diplomatic law that the receiving state has the
special duty to protect the premises of the diplomatic mission of
the sending state.
6. The right of a citizen to return to his own country.
7. The principle that ―a foreign army allowed to march through
friendly country or to be stationed in it, by permission of its
government or sovereign, is exempt from criminal jurisdiction of
the place‖.
8. The principle that judicial acts, not of a political complexion of a
de facto government established by the military occupant in an
enemy territory, are valid under international law.
9. The principle that private property seized and used by the enemy
in times of war under circumstances not constituting valid
requisition does not become enemy property and its private
ownership is retained, the enemy having acquired only its
temporary use.
10. The principle that a State has the right to protect itself and its
revenues, a right not limited to its own territory but extending to
the high seas.
3. General Principles of Law (GPL)
United Nations Declaration
GR: General Assembly resolutions are NOT binding on member states.
But when they are concerned with general norms of international law,
acceptance by all or most members constitutes evidence of the opinions of
governments in what is the widest forum for the expression of such
opinions.
Resolutions may satisfy the subjective element opinio juris by expressly
articulating a belief concerning the existence of principles and rules of
international law.
State practice may also be evidenced either in declarations of general
principle or in resolutions dealing with particular cases.
General Assembly resolutions may contribute to the formation of custom
as a kind of collective state practice. These resolutions can be considered
the collective equivalent of unilateral general statements.
In some cases, a resolution may have the effect of an authoritative
interpretation and application of the principles of the UN Charter.
XPN: Certain UN organizational matters
The Security Council is empowered to issue binding legal standards
when acting under Chapter VII of the UN Charter concerning action with
respect to threats to peace, breaches of the peace, and acts of aggression.

Definition: These refer to those general principles in municipal law
(particularly those of private law) that may be appropriated to apply to the
relations of states.
Function of GPL: To avoid a non liquet, i.e. when a court does not have a
treaty or customary norm to decide on.
The Security Council may decide what measures involving the use of
armed force are to be employed to give effect to its decisions.
When the Security Council decides not to resort to recommendations but
to issue decisions, these are binding on the strength of Article 25 of the
UN Charter.

Examples of General Principles of Law

1. Estoppel
2. Res Judicata
3. Res Inter Alios Acta
4. Prescription
5. Duty to Make Reparations
6. Abuse of Rights
7. Good Faith
8. Principle of Reciprocity 3. EFFECT OF ACTIONS OF ORGANS OF INTERNATIONAL
9. Circumstantial Evidence- admitted as indirect evidence in all ORGANIZATIONS CREATED BY TREATY
systems of law and its use is recognized by international
decisions. Such circumstantial evidence, however, must consist
of a series of facts or events that lead to a single conclusion. The treaty constituting an international organization may entrust a body of
the organization to adopt binding legal standards The rules enacted shall
be BINDING ONLY to the member states of the organization. It cannot
bind third states.

1B SUBSIDIARY SOURCES

Judicial Decisions and Teachings of Highly Qualified Publicists

Function: These two sources listed in Article 38 (1 (d)) of the ICJ Statute
tell us what the law is. They are evidence of what international law is.

Judicial Decisions- Includes decisions of international tribunals and those

of municipal courts. There is no binding precedent in international law
pursuant to Article 59 of the ICJ Statute

Highly Qualified Publicists- No clear definition of what is a highly

qualified publicist.

4BLUE 95: The difference between Judicial Decisions and Writings of

Highly Qualified Publicists It is not so much that judicial decisions
necessarily possess a higher intrinsic value than the teachings of
publicists, but that they have ‗a more direct and immediate impact on the
realities of international life.

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SUBJECTS/ OJECTS OF INTERNATIONAL LAW
SUBJECTS are Entities which are:
1. Capable of possessing international rightsand duties; and
2. Having the capacity to maintain these rights by bringing
international claims.
Subjects of International Law:
1. States;
2. International organizations; and
3. Natural or Juridical Persons
4BLUE 95 NOTE: States are generally considered as the primary
SUBJECT of international law.
Rationale: ‖xxx the world is today organized on the basis of the co-existence
of States, and that fundamental changes will take place only through State
action, whether affirmative or negative‘. The States are the repositories of
legitimated authority over peoples and territories. It is only in terms of State
powers, prerogatives, jurisdictional limits and law-making capabilities that
territorial limits and jurisdiction, responsibility for official actions, and a host
of other questions of co-existence between nations can be determined.‖
OBJECTS of international law are persons or things in respect of which
rights are held and obligations are assumed by the subject. They are not
directly governed by the rules of international law. Their rights (e.g. human
rights of individuals) may be asserted and their responsibilities imposed
indirectly, through the instrumentality of an intermediate agency (e.g. state).
This distinction between objects and subjects of International Law has been
criticized as unhelpful, as non-state actors already have standing to bring suits
in the fields of international criminal law and international human rights law.
The United Nations has an objective international personality.
1. STATES
A state exists when it complies with the four (4) requisites listed in the
Montevideo Convention,which is considered as customary international law for
defining the requisites of statehood.
4 Requisites To Be A State:
Montevideo Convention, Article 1
The state as a person of international law should possess the
following qualifications: (a) a permanent population; (b) a
defined territory; (c) government; and (d) capacity to enter into
relations with the other states.
1. Permanent Population- It refers to a permanent population and
intended to be used in association with that of territory, and
connotes a stable community.
2. Defined Territory- State territory is that defined portion of the
surface of the globe, which is subjected to the sovereignty of the
State
A state must exercise control over a certain area. It need not be
exactly defined by metes and bounds, so long as there exists a
reasonable certainty of identifying it. No minimum land area is
required.
3. Government- Denotes a ―stable political community supporting
a legal order to the exclusion of another in a given area‖.
The existence of effective government, with centralized
administrative and legislative organs, is the best evidence of a
stable political community. It is a centralized structure capable of
exercising effective control over a human community living in a
given territory.
State practice suggests that the requirement of a ―stable political
organization‖ in control of the territory does not apply during a
civil war or where there is a collapse of law and order in a state
that already exists.
Under the rules on succession of States, even changes of entire
governments fo not affect the identity and personality of the state.
Once statehood is established, neither invasion nor disorder alone
can remove its character as a state.
4. Capacity To Enter Into Relations With Other
States/Independence
A state must be free from outside control in conducting foreign
and internal affairs, i.e. sovereign and independent.
The State is the sole executive and legislative authority. It must
be independent of other state legal orders, and any interference by
such legal orders, or by an international agency, must be based on
a title of international law.
Independence is the decisive criterion of statehood. This concept
of independence is represented by the requirement of capacity to
enter into relations with other states.
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2. INTERNATIONAL ORGANIZATIONS
An organization established by a treaty or other instrument governed by
international law and possessing its own international legal personality.
International organizations may include as members, in addition to States, other
entities.
GR: International organizations have special personality. The status and
powers of an international organization is determined by agreement and not by
general or customary international law. They are considered subjects of
international law ―if their legal personality is established by their constituent
instrument.‖ Thus, legal personality in this context is a relative concept.
XPN: United Nations, which has objective international personality. The
UN‘s personality is binding on the whole international community, including
States who are not UN members.
3. INDIVIDUALS
In general, individuals, whether natural or juridical, do not have
international legal personalities.
However, individuals may assume the status of subjects of international
law only on the basis of agreement by states and in specific context,
not in accordance with general or customary international law.
4. OTHERS
Q: Select any five (5) of the following and explain each, using examples: a. Reprisal
b. Retorsion c. Declaratory Theory of Recognition Principle d. Recognition of
Belligerency e. Continental Shelf f. Exequatur g. Principle of Double Criminality
(2007, 2019 Bar) h. Protective Personality i. Innocent Passage j. Jus cogens in
International Law (1991, 2019 BAR)
A:
a. REPRISAL is a coercive measure short of war, directed by a state against
another, in retaliation for acts of the latter and as means of obtaining reparation
or satisfaction for such acts. Reprisal involves retaliatory acts which by
themselves would be illegal. For example, for violation of a treaty by a statethe
aggrieved state seizes on the high seas the ships of the offending state.
b. RETORSION is a legal but deliberately unfriendly act directed by a state
against another in retaliation for an unfriendly though legal act to compel that
state to alter its unfriendly conduct. An example of retorsion is banning exports
to the offending state.
c. The DECLARATORY THEORY OF RECOGNITION is a theory according
to which recognition of a state is merely an acknowledgment of the fact of its
existence. In other words, the recognized state already exists and can exist even
without such recognition. For example, when other countries recognized
Bangladesh, Bangladesh already existed as a state even without such
recognition.
d. RECOGNITION OF BELLIGERENCY is the formal acknowledgment by a
third party of the existence of a state of war between the central government and
a portion of that state. Belligerency exists when a sizeable portion of the
territory of a state is under the effective control of an insurgent community
which is seeking to establish a separate government and the insurgents are in de
facto control of a portion of the territory and population, have a political
organization, are able to maintain such control, and conduct themselves
according to the laws of war. For example, Great Britain recognized a state of
belligerency in the United States during the Civil War.
e. CONTINENTAL SHELF of a coastal state comprises the sea-bed and subsoil
of the submarine areas that extend beyond its territorial sea throughout the
natural prolongation of its land territory to the outer edge of the continental
margin, or to a distance of 200 nautical miles from the baselines from which the
breadth of the territorial sea is measured where the outer edge of the continental
shelf does not extend up to that distance.
f. EXEQUATUR is an authorization from the receiving state admitting the head
of a consular post to the exercise of his functions. For example, if the
Philippines appoints a consul general for New York, he cannot start performing
his functions unless the President of the United States issues an exequatur to
him.
g. The principle of DOUBLE CRIMINALITY is the rule in extradition which
states that for a request to be honored the crime for which extradition is
requested must be a crime in both the requesting state and the state to which the
fugitive has fled. For example, since murder is a crime both in the Philippines
and in Canada, under the Treaty on Extradition between the Philippines and
Canada, the Philippines can request Canada to extradite a Filipino who has fled
to Canada.
h. PROTECTIVE PERSONALITY principle is the principle by which the state
exercise jurisdiction over the acts of an alien even if committed outside its
territory, if such acts are adverse to the interest of the national state.
i. INNOCENT PASSAGE means the right of continuous and expeditious
navigation of a foreign ship through the territorial sea of a state for the purpose
of traversing that sea without entering the internal waters or calling at a
roadstead or port facility outside internal waters, or proceeding to or from
internal waters or a call at such roadstead or port facility. The passage is
innocent so long as it is not prejudicial to the peace, good order or security of
the coastal state.
j. JUS COGENS is a peremptory norm of general international law accepted and
recognized by the international community as a whole as a norm from which no
derogation is permitted and which can be modified only by a subsequent norm
of general international law having the same character. An example is the
prohibition against the use of force.
JURISDICTION OF STATES
Jurisdiction means the power of a state under international law to govern
persons and property by its municipal law. This may be criminal or civil,
and may be exclusive or concurrent with other states
1. BASIS OF JURISDICTION
a. TERRITORIALITY PRINCIPLE
Jurisdiction is determined by reference to the place where the act occurred
or was committed. A State takes jurisdiction over persons or events within
its territory.Usually refers to criminal jurisdiction.
b. NATIONALITY PRINCIPLE AND STATELESSNESS
A State may exercise jurisdiction over an offender by virtue of his being
its national, without regard as to where he was at the time the offense was
committed and without respectto the nature of the offense.
c. PROTECTIVE PRINCIPLE
A State may exercise jurisdiction over an offense committed outside its
territory by its national or non-national, by reason of protecting its
security or vital interests.
d. UNIVERSALITY PRINCIPLE
A State may exercise jurisdiction over crimes committed without respect
to the nationality of the offender, on the ground that such crimes are
declared as international crimes by the international community as a
whole and thus are prohibited by international law.
e. PASSIVE PERSONALITY PRINCIPLE
A State may exercise jurisdiction against foreign nationals who commit
acts to the injury of its nationals within the territory of another State. A
court has jurisdiction if the offended party of the act is a national of the
forum state.
Conflict of Jurisdiction- This arises when two or more states can exercise
jurisdiction based on one or more different principles of jurisdiction (ex:
Universality v. Territoriality).
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2. EXEMPTIONS FROM JURISDICTION
a. ACT OF STATE DOCTRINE
State Immunity
GR: This refers to a principle by which a state, its agents, and property are
immune from the jurisdiction of another state.
This principle is premised on the juridical equality of states, according to which
a state may not impose its authority or extend its jurisdiction to another state
without the consent of the latter, through a waiver of immunity. Thus, domestic
courts must decline to hear cases against foreign sovereigns out of deference to
their role as sovereigns.
XPN: When a state waives the immunity or consents to being sued.
Types of State Immunity
1. RationaeMateriae: Attaches to the official acts of State officials
and is determined by reference to the nature of the acts in
question rather than by reference to the particular office of the
official.
a. Doctrine of Restrictive Immunity divides this
immunity into 2 categories:
i. Acts performed jure gentionis: that
is, private or commercial transactions
of States, are subject to foreign
jurisdiction (commercial acts).
ii. Acts performed jure imperii: the
foreign State in its capacity as a
sovereign, are immune (sovereign
acts).
2. Rationae Personae: Attaches to the office itself. However, in
contrast, it covers official and personal acts.
The Nature of State Immunity
1. It is preliminary in nature and does not depend on the
obligation breached by the State.
2. It is a customary norm.
3. Such immunity applies even if the claimagainst the state is for
violation of a jus cogens norm in international law.
4BLUE 95: ―Immunity from jurisdiction is an immunity not merely from being
subjected to an adversejudgment but from being subjected to the trial process.
It is, therefore, necessarily preliminary in nature. In addition, there is a
substantial body of State practice from other countries which demonstrates that
customary international law does not treat a State‘s entitlement to immunity as
dependent upon the gravity of the act of which it is accused or the peremptory
nature of the rule which it is alleged to have violated.‖
b. INTERNATIONAL ORGANIZATION AND THEIR OFFICERS
The rapid growth of international organizations under contemporary
international law has paved the way for the development of the concept of
international immunities.
There are 3 propositions underlying the grant of international immunities to
international organizations. These principles, contained in the ILO
Memorandum are stated thus:
1. International institutions should have a status which protects
them against control or interference by any one government in
the performance of functions for the effective discharge of which
they are responsible to democratically-constituted international
bodies in which all the nations concerned are represented;
2. No country should derive any national financial advantage by
levying fiscal charges on common international funds; and
3. The international organization should, as a collectivity of States
members, be accorded the facilities for the conduct of its official
business customarily extended to each other by its individual
member States.
International immunity is not concerned with the status, dignity, or privileges
of individuals, but with the elements of functional independence necessary to
free international institutions from national control and enable them to
discharge their responsibilities impartially on behalf of all their members.
Theraison d’etre for these immunities is the assurance of unimpeded
performance of their functions by the agencies concerned
Jus cogens
Q: May a treaty violate international law? If your answer is in the affirmative, explain
when such may happen. If your answer is in the negative, explain why. (2008 BAR)
A: YES, a treaty may violate international law (understood as general international
law) if it conflicts with a peremptory norm or jus cogens of international law. Jus
cogens norm is defined as a norm of general international law accepted and
recognized by the international community of states as a whole ―as a norm from
which no derogation is permitted and which can be modified only by a subsequent
norm of general international law having the same character.‖ Article 53 of the
Vienna Convention on the Law of Treaties (1969) provides that (a) treaty is void if the
at the time of its conclusion, it conflicts with jus cogens norm. Moreover, under
Article 54 of this Convention if a new peremptory norm of general international law
emerges, any existing treaty which is in conflict with that norm becomes void and
terminates.
Q: In February 1990, the Ministry of the Army Republic of Indonesia, invited bids for
the supply of 500,000 pairs of combat boots for the use of the Indonesian Army. The
Marikina Shoe Corporation, a Philippine corporation, which has no branch office and
no assets in Indonesia, submitted a bid to supply 500,000 pairs of combat boots at
U.S. $30 per pair delivered in Jakarta on or before 30 October 1990. The contract was
awarded by the Ministry of the Army to Marikina Shoe Corporation and was signed
by the parties in Jakarta. Marikina Shoe Corporation was able to deliver only 200,000
pairs of combat boots in Jakarta by 30 October 1990 and it received payment for
100,000 pairs or a total of U.S. $3,000,000.00. The Ministry of the Army promised to
pay for the other 100,000 pairs already delivered as soon as the remaining 300,000
pairs of combat boots are delivered, at which time the said 300,000 pairs will also be
paid for. Marikina Shoe Corporation failed to deliver any more combat boots. On 1
June 1991, the Republic of Indonesia filed an action before the Regional Trial Court
of Pasig, Rizal to compel Marikina Shoe Corporation to perform the balance of its
obligations under the contract and for damages. In its answer, Marikina Shoe
Corporation sets up a counterclaim for U.S. $ 3,000,000.00 representing the payment
for the 100,000 pairs of combat boots already delivered but unpaid. Indonesia moved
to dismiss the counterclaim, asserting that it is entitled to sovereign immunity from
suit. The trial court denied the motion to dismiss and issued two writs of garnishment
upon Indonesian Government funds deposited in the Philippine National Bank and Far
East Bank. Indonesia went to the Court of Appeals on a petition for certiorari under
Rule 65 of the Rules of Court. How would the Court of Appeals decide the case?
(1991 BAR)
A: The Court of Appeals should dismiss the petition insofar as it seeks to annul the
order denying the motion of the Government of Indonesia to dismiss the counterclaim.
The counterclaim in this case is a compulsory counterclaim since it arises from the
same contract involved in the complaint. As such it must be set up otherwise it will be
barred. Above all, as held in Froilan v. Pan Oriental Shipping Co., 95 Phil. 905, by
filing a complaint, the State of Indonesia waived its immunity from suit. It is not right
that it can sue in the courts but it cannot be sued. The defendant therefore acquires the
right to set up a compulsory counterclaim against it. However, the Court of Appeals
should grant the petition of the Indonesian government insofar as it sought to annul
the garnishment of the funds of Indonesia which were deposited in the Philippine
National Bank and Far East Bank. Consent to the exercise of jurisdiction of a foreign
court does not include waiver of the separate immunity from execution (Brownlie,
Principles of Public International Law, 4th ed., p. 344).Thus, in Dexter v. Carpenter
vs. Kunglig Jarnvagsstyrelsen, 43 Fed. 705, it was held the consent to be sued does
not give consent to the attachment of the property of a sovereign government.
Q: The State of Nova, controlled by an authoritarian government, had unfriendly
relations with its neighboring State, Ameria. Bresia, another neighboring State, had
been shipping arms and ammunitions to Nova for use in attacking Ameria. To
forestall an attack, Ameria placed floating mines on the territorial waters surrounding
Nova. Ameria supported a group of rebels organized to overthrow the government of
Nova and to replace it with a friendly government. Nova decided to file a case against
Ameria in the International Court of Justice. a. On what grounds may Ameria move to
dismiss the case with the ICJ? b. Decide the case. (1994 BAR)
A:
a. By virtue of the principle of sovereign immunity, no sovereign state can be made a
party to a proceeding before the International Court of Justice unless it has given its
consent. If Ameria has not accepted the Jurisdiction of the International Court of
Justice, Ameria can invoke the defense of lack of jurisdiction. Even if Ameria has
accepted the jurisdiction of the court but the acceptance is limited and the limitation
applies to the case, it may invoke such limitation its consent as a bar to the assumption
of jurisdiction. If jurisdiction has been accepted, Ameria can invoke the principle of
anticipatory self- defense, recognized under customary international law, because
Nova is planning to launch an attack against Ameria by using the arms it bought from
Bresia.
b. If jurisdiction over Ameria is established, the case should be decided in favor of
Nova, because Ameria violated the principle against the use of force and the principle
of nonintervention. The defense of anticipatory self-defense cannot be sustained,
because there is no showing that Nova had mobilized to such an extent that if Ameria
were to wait for Nova to strike first it would not be able to retaliate. However, if
jurisdiction over Ameria is not established, the case should be decided in favor of
Ameria because of the principle of sovereign immunity.
Q: What do you understand by the "Doctrine of Incorporation" in Constitutional Law?
(1997 BAR)
A: The DOCTRINE OF INCORPORATION means that the rules of International law
form part of the law of the land and no legislative action is required to make them
applicable to a country. The Philippines follows this doctrine, because Section 2,
Article II of the Constitution states that the Philippines adopts the generally accepted
principles of international law as part of the law of the land.
Q: What is the principle of auto-limitation? (2006 BAR)
A: Under the principle of auto-limitation, any state may by its consent, express or
implied, submit to a restriction of its sovereign rights. There may thus be a
curtailment of what otherwise is a plenary power (Reagan v. CIR, G.R. L-26379,
[1969]).
6
Q: What is the doctrine of sovereign immunity in International Law? (1998 BAR)
A: By the doctrine of sovereign immunity, a State, its agents and property are immune
from the judicial process of another State, except with its consent. Thus, immunity
may be waived and a State may permit itself to be sued in the courts of another State.
Sovereign immunity has developed into two schools of thought, namely, absolute
immunity and restrictive immunity. By absolute immunity, all acts of a State are
covered or protected by Immunity. On the other hand, restrictive immunity makes a
distinction between governmental or sovereign acts (acta jure imperii) and
nongovernmental, propriety or commercial acts (acta jure gestiones). Only the first
category of acts is covered by sovereign immunity. The Philippine adheres to the
restrictive immunity school of thought.
ALTERNATIVE ANSWER: In United States vs. Ruiz, 128 SCRA 487, 490-491, the
Supreme Court explained the doctrine of sovereign Immunity in international law;
―The traditional rule of State immunity exempts a State from being sued in the courts
of another State without its consent or waiver, this rule is a necessary consequence of
the principles of independence and equality of states. However, the rules of
International Law are not petrified, they are constantly developing and evolving. Arid
because the activities of states have multiplied, it has been necessary to distinguish
them — between sovereign and government acts (jure imperii) and private,
commercial and proprietary acts (jure gestionis). The result is that State immunity
now extends only to acts jure imperii.‖
Q: An organization of law students sponsored an inter-school debate among three
teams with the following assignments and propositions for each team to defend: Team
"A" - International law prevails over municipal law. Team "B" - Municipal law
prevails over international law. Team "C" – A country's Constitution prevails over
international law but international law prevails over municipal statutes. If you were
given a chance to choose the correct proposition, which would you take and why?
(2003 BAR)
A: I shall take the proposition for Team C. International Law and municipal laws are
supreme in their own respective fields. Neither has hegemony over the other
(Brownlie, Principles of Public International Law, 4th ed. p. 157). Under Article II,
Section 2 of the 1987 Constitution, the generally accepted principles of international
law form part of the law of the land. Since they merely have the force of law, if it is
Philippine courts that will decide the case, they will uphold the Constitution over
international law. If it is an international tribunal that will decide the case, it will
uphold international law over Political Law 126 municipal law. As held by the
Permanent International Court of Justice in the case of the Polish Nationals in Danzig,
a State cannot invoke its own Constitution to evade obligations incumbent upon it
under international law.
ALTERNATIVE ANSWER: I would take the proposition assigned to Team "C" as
being nearer to the legal reality in the Philippines, namely, "A country's Constitution
prevails over international law but international law prevails over municipal statutes".
This is, however, subject to the place of international law in the Philippine
Constitutional setting in which treaties or customary norms in international law stand
in parity with statutes and in case of irreconcilable conflict, this may be resolved by
lex posteriori derogat lex priori as the Supreme Court obiter dictum in Abbas v.
COMELEC GR. No. 89651 (1989) holds. Hence, a statute enacted later than the
conclusion or effectivity of a treaty may prevail. In the Philippine legal system, there
are no norms higher than constitutional norms. The fact that the Constitution makes
generally accepted principles of international law or conventional international law as
part of Philippine law does not make them superior to statutory law, as clarified in
Secretary of Justice v. Lantion and Philip Morris, GR. No. 139465 (2000) decision.
Q: What is the relationship between reciprocity and the principle of auto- limitation?
(2006 BAR)
A: By reciprocity, States grants to one another rights or concessions, in exchange for
identical or comparable duties, thus acquiring a right as an extension of its
sovereignty and at the same time accepting an obligation as a limitation to its
sovereign will, hence, a complementation of reciprocity and auto-limitation.
Q: The dictatorial regime of President A of the Republic of Gordon was toppled by a
combined force led by Gen. Abe, former royal guards and the secessionist Gordon
People‘s Army. The new government constituted a Truth and Reconciliation
Commission to look into the serious crimes committed under President A‘s regime.
After the hearings, the Commission recommended that an amnesty law be passed to
cover even those involved in mass killings of members of indigenous groups who
opposed President A. International human rights groups argued that the proposed
amnesty law is contrary to international law. Decide with reasons. (2010 BAR)
A: The proposed amnesty law is contrary to international law. The mass killings of
member of indigenous groups constitute genocide under Article II (a), Convention for
the Prevention and Punishment of the crime of Genocide. The proposed amnesty law
is against international law because it is incompatible with, or in violation of the
international obligation under Article IV of this Convention that ―Persons committing
genocide… shall be punished, whether they are constitutionally responsible rulers,
public officials or private individuals.‖ The Contracting Parties confirm that genocide,
whether committed in time of peace of in time of war, is a crime under international
law which they undertake to prevent and to punish.
Q: What is the concept of association under international law? (2009 BAR)
A: An association is formed when two states of unequal power voluntarily establish
durable links. The associate delegates certain responsibilities to the other, the
principal, while maintaining its status as a state. It is an association between
sovereigns. The associated state arrangement has usually been used as a transitional
device of former colonies on their way to full independence. (Province of North
Cotabato v. GRP Peace Panel on Ancestral Domain, 568 SCRA 402 [2008].)
Association, under international law, is a formal arrangement between a non-self-
governing territory and an independent State whereby such territory becomes an
associated State with internal selfgovernment, but the independent state is responsible
for foreign relations and defense. For an association to be lawful, it must comply with
the general conditions prescribed in UN General Assembly Resolution 1541 (XV) of
14 December 160: (1) the population must consent to the association; and (2) the
association must promote the development and well-being of the dependent state (the
non-self-governing territory). Association is subject to UN approval.
Q: State your general understanding of the primary sources and subsidiary sources of
international law, giving an illustration of each. (2003 BAR)
A: Under Article 38 of the Statute of the International Court of Justice, the primary
sources of international law are the following: 1. International conventions, e.g.,
Vienna Convention on the Law of Treaties. 2. International customs, e.g., cabotage,
the prohibition against slavery, and the prohibition against torture. 3. General
principles of law recognized by civilized nations, e.g., prescription, res judicata, and
due process. The subsidiary sources of international law are judicial decisions, subject
to the provisions of Article 59, e.g., the decision in the AngloNorwegian Fisheries
Case and Nicaragua v. United States, and teachings of the most highly qualified
publicists of various nations, e.g., Human Rights in International Law by Lauterpacht
and International Law by Oppenheim-Lauterpacht.
ALTERNATIVE ANSWER: Reflecting general international law, Article 38(1) of the
Statute of the International Court of Justice is understood as providing for
international convention, international custom, and general principles of law as
primary sources of international law, while indicating that judicial decisions and
teachings of the most highly qualified publicists as ―subsidiary means for the
determination of the rules of law.‖ The primary sources may be considered as formal
sources in that they are the methods by which norms of international law are created
and recognized. A conventional or treaty norm comes into being by established treaty-
making procedures and a customary norm is the product of the formation of general
practice accepted as law. By way of illustrating International Convention as a source
of law, we may refer to the principle embodied in Article 6 of the Vienna Convention
on the Law of Treaties which reads: ―Every State possesses capacity to conclude
treaties‖. It tells us what the law is and the process or method by which it came into
being. International Custom may be concretely illustrated by pacta sunt servanda, a
customary or general norm which came about through extensive and consistent
practice by a great number of states recognizing it as obligatory. The subsidiary
means serves as evidence of law.
Q: The legal yardstick in determining whether usage has become customary
international law is expressed in the maxim opinio juris sive necessitates or opinion
juris for short. What does the maxim mean? (2008 BAR)
A: Opinio juris sive necessitates or simply opinion juris means that as an element in
the formation of customary norm in international law, it is required that States in their
conduct amounting to general practice, must act out of a sense of legal duty and not
only by the motivation of courtesy, convenience or tradition. According to the
International Court of Justice in the North Sea Continental Shelf Cases (ICJ Reports,
1969, para. 77), and quoted by the Philippine Supreme Court in Mijares v Ranada
(455 SCRA 397 [2005]), ―Not only must the acts amount to a settled practice, but they
must also be such, or be carried out in such a way, as to be evidence of a belief that
this practice is rendered obligatory by the existence of a rule of law requiring it.‖
Q: Distinguish between de facto recognition and de jure recognition of states. (1998
BAR)
A: The following are the distinctions between de facto recognition and de jure
recognition of a government:
a. De facto recognition is provisional, de jure recognition is relatively
permanent;
b. De facto recognition does not vest title in the government to its properties
abroad; de Jure recognition does;
c. De facto recognition is limited to certain juridical relations; de jure
recognition brings about full diplomatic relations. (Cruz. International Law.
1996 ed.. p. 83.)
ALTERNATIVE ANSWER: The distinction between de facto recognition and de jure
recognition of a State is not clear in international law. It is, however, usually assumed
as a point of distinction that while de facto recognition is provisional and hence may
be withdrawn, de jure recognition is final and cannot be withdrawn. Confronted with
the emergence of a new political entity in the international community, a State may
experience some difficulty in responding to the question whether the new political
order qualifies to be regarded as a state under international law, in particular from the
viewpoint of its effectiveness and independence on a permanent basis. The
recognizing State may consider its act in regard to the new political entity as merely a
de facto recognition, implying that it may withdraw it if in the end it turns out that the
conditions of statehood are not fulfilled should the new authority not remain in power.
But even then, a de facto recognition in this context produces legal effects in the same
way as de jure recognition. Whether recognition is de facto or de jure, steps may be
taken to withdraw recognition if the conditions of statehood in international law are
not fulfilled. Thus, from this standpoint, the distinction is not legally significant.
Q: Distinguish: The constitutive theory and the declaratory theory concerning
recognition of states. (2004 BAR)
A:
According to the CONSTITUTIVE THEORY, recognition is the last indispensable
element that converts the state being recognized into an international person.
According to the DECLARATORY THEORY, recognition is merely an
acknowledgment of the pre-existing fact that the state being recognized is an
international person (Cruz, International Law, 2003 ed.)

Q: Under international law, differentiate ―hard law‖ from ―soft law‖. (2009 BAR)
A: ―Hard law‖ is used to designate a norm or rule of conduct accepted and recognized
by the international community of states as a whole, as a source of law binding on
them. ―Hard law‖ produces obligations which when breached gives rise to
international responsibility and, consequently, to reparation. On the other hand, ―soft
law‖ has no binding force and pertains to a statement or declaration of principles with
moral force on the conduct of states but no normative character and without intent to
create enforceable obligations. In the development of international law, a number of
―soft law‖ principles or declarations have become the basis of norm-creation in treaty-
making and in general practice of states in customary-norm formation.

ALTERNATIVE ANSWER: Soft law has no binding force and pertains to a

statement or declaration of principles with moral force on the conduct of states but no
normative character and without intent to create enforceable obligations. On the other
hand, hard law is a norm or rule of conduct accepted and recognized by the
international community of states as a whole, as a source of law that is binding on
them. Hard law produces obligations which when breached gives rise to international
responsibility and, consequently, to reparation. ALTERNATIVE ANSWER: Soft law
is an expression' of non-binding norms, principles and practices that influence State
behavior. On the other hand, hard law involves binding rules of international law
(Pharmaceutical and Health Care Association of the Philippines v. Duque, 535 SCRA
265 [2007]).

Q: What are the sources of International Law? (2012 BAR)

A: The following are the sources of International Law: 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

Q: What is opinio juris in International Law? (2008, 2012 BAR) A: To establish

customary international law, two elements must concur: the general state practice and
opinio juris sire necessitatis. State practice refers to the continuous repetition of the
same or similar kind of acts or norms by states. Opinio juris requires that the Political
Law 128 state practice or norm be carried out in such a way as to be evidence of the
belief that it is obligatory by the existence of a rule of law requiring it (Bayan Muna v.
Romulo, 641 SCRA 244).

Q: The Japanese Government confirmed that during the Second World War, Filipinas
were among those conscripted as "comfort women" (or prostitutes) for Japanese
troops in various parts of Asia. The Japanese Government has accordingly launched a
goodwill campaign and has offered the Philippine Government substantial assistance
for a program that will promote — through government and non- governmental
organizations — women's rights, child welfare, nutrition and family health care. An
executive agreement is about to be signed for that purpose. The agreement includes a
clause whereby the Philippine Government acknowledges that any liability to the
"comfort women" or their descendants are deemed covered by the reparations
agreements signed and implemented immediately after the Second World War.
Juliano Iglesias, a descendant of a now deceased comfort woman, seeks your advice
on the validity of the agreement. Advise him. (1992 BAR)
A: The agreement is valid. The comfort women and their descendants cannot assert
individual claims against Japan. As stated in Davis & Moore vs. Regan, 453 U.S. 654,
the sovereign authority of a State to settle claims of its nationals against foreign
countries has repeatedly been recognized. This may be made without the consent of
the nationals or even without consultation with them. Since the continued amity
between a State and other countries may require a satisfactory compromise of mutual
claims, the necessary power to make such compromises has been recognized. The
settlement of such claims may be made by executive agreement.