You are on page 1of 80

Public International Law

PIL COMMON CONCEPTS


Par in parem non habet imperium
Means: an equal cannot have dominion over an equal.

In international law, all states are treated as equals,


regardless of population, size of territory, and economic
status.

Pacta sunt servanda


Pacts are to be complied with in good faith.

Once a state had entered into a pact with other states,


both must comply with the pact in good faith. Breach of
such pact may cause hostile relation between both states.
It can also be a ground for a sanction under the

United Nation‘s Charter.


Definition

PUBLIC INTERNATIONAL LAW

Is the body of legal rules, which apply to sovereign


states and such other entities that have been granted
international personality.

Continuing process of authoritative decisions which


include policy considerations forming an integral
part of the decision making process. [Jocelyn
Higgins]
What is Private International Law (PRIL)?

Also known as Conflict of Laws

It is that part of the law of each State which determines


whether, in dealing with a factual situation, an event or
transaction between private individuals or entities
involving a foreign element, the law of some other State
will be recognized.
PIL vs Private Int'l Law
Can international law be made part of
municipal/domestic law? Yes pursuant to the
following doctrines:
Doctrine of Incorporation
Doctrine of Transformation
Doctrine of Incorporation
o By mere constitutional declaration, international law is
deemed to have the force of municipal or domestic
law.
o Applicable to customary rules accepted as binding to
all states-has the character of opinion juris sive
necessitates (opinion as to law or necessity).
Art. II, Sec. 2 1987 Phil. Const‟n: The Philippines
renounces war as an instrument of national policy,
adopts the generally accepted principles of
international law as part of the law of the land and
adheres to the policy of peace, equality, justice,
freedom, cooperation, and amity with all nations.
Doctrine of Transformation

o The generally accepted rules of international law are


not per se binding upon the state but must first be
embodied in the legislation enacted by the lawmaking
body and so transformed into municipal law. Only
when so transformed will they become binding upon
the state as part of its municipal law.
Art. VII, Sec. 21 of Phil. Const‟n: No treaty or
international agreement shall be valid and effective
unless concurred in by at least two-thirds of all
members of the senate.
Corollary to the two doctrines is the Principle of
Pacta sunt servanda - In International law, treaties
and executive agreements are equally binding
commitments of the contracting states under the
maxim pacta sunt servanda. Every state has the duty
to carry out in good faith its obligations arising from
treaties or other sources of international law, and it
may not invoke provisions in its constitution or its laws
as an excuse for failure to perform this duty.
PIL - Constitutional Provisions

Art. II, Sec. 2 – “The Philippines renounces war as an


instrument of national policy, adopts the generally
accepted principles of international law as part of the
law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with
all nations.”
Kuroda versus Jalandoni

FACTS: Kuroda was a Japanese general stationed in


the Philippines. He was being prosecuted for
committing atrocities during World War II pursuant to
the Geneva Convention. He interposed the defense
that he cannot be tried because there is no Philippine
law punishing war crimes and the Philippines was not
a signatory to the said convention.
ISSUE: WON Kuruda can be tried in the Philippines.
Kuroda versus Jalandoni
HELD: Yes, pursuant to the doctrine of incorporation. It cannot
be denied that the rules and regulations of The Hague and
Geneva Conventions form part of Philippine law since it is
wholly based on the generally accepted principles of
international law. In fact these rules and principles were
accepted by the two belligerent nations, the United States and
Japan, who were signatories to the convention. Such rules and
principles, therefore, form part of the law of our nation even if
the Philippines was not a signatory to the convention
embodying them, for our constitution has been deliberately
general and extensive in its scope and is not confined to the
recognition of rules and principles of international law as
contained in treaties to which our government may have been
or shall be a signatory.
Art. I- The National territory of the Philippines
o The delineation of the Philippine territory was based
on the Treaty of Paris where Spain had sold the
Philippines to the US for the consideration of $20,000.
It was also based on the UN Convention on the Law of
the Seas (UNCLOS). Thus it adopts the
ARCHIPELAGIC DOCTRINE.
The meaning of the word “internal waters” as used in the
Philippine Constitution is different from that of the UNCLOS.

UNCLOS- internal waters means those waters from the


baseline (seashore) landwards.

PHIL. CONST- Internal waters include those waters between


two islands.

No international law that requires a state to delineate its


territory. Thus, even if a state delineates its territory it cannot
enforce it to other states.
EXCEPT, when such delineated territory is recognized by other
states or such delineation was made in pursuance of a treaty
with other states.
REASON: The one creating the territory is a municipal law
which is not binding to international law.
Art. VII, Sec. 21- “No treaty or international
agreement shall be valid and effective unless
concurred in by at least two-thirds of all members
of the senate.”
Tanada vs. Angara

Facts: The President had entered into a treaty


regarding the free trade among countries as
enunciated in the General Agreement on Tariffs and
Trade. The treaty was concurred by the Senate.
Subsequently it was challenge on the ground that it
violates the constitutional provisions on national
patrimony specifically the Filipino first concept.
Moreover, the treaty was invalid because it was not
ratified by the senate.
Issue: WON the treaty is invalid because it was not
ratified by the senate.
Held: No! The constitutional requirements were
complied. The treaty was ratified by the president in
his treaty making capacity and it was concurred by
the Senate. Ergo, it became a valid law in the
Philippine jurisdiction. Ratification is reserve to the
President of the Philippines and not to the Senate.
The senate will only concur.
Note:
In cases of treaties- ratification is only made by the
president; while concurrence is for the senate.
o In executive agreements- the concurrence of the
senate is not needed (Commissioner of Custom vs.
Eastern Trading, 3 SCRA 351).
Art. VII, Sec. 4- Supreme Court can declare a treaty
unconstitutional.
In case of irreconcilable conflict between a treaty and a
municipal law, which should prevail?
o First, an effort must be made to reconcile the differences so
as to make the two conflicting laws applicable.
Second, if it cannot be harmonize, the law that should prevail
depends on the forum where the case was filed. If it is filed in
the International Court of Justice, international law
prevails; but if it is filed in municipal courts, municipal
law prevails (Philip Morris vs. CA, 224 SCRA 576).
Note: if filed in the municipal courts and a treaty contravene the
Constitution and regulatory statutes that further police power,
the latter prevails. Treaties and ordinary legislative statutes
may repeal each other. Apply the principle of lex posterior
derogat priori [which comes last shall prevail]
Sources of International Law

Sources of international law include treaties, international


customs, general principles of law as recognized by civilized
nations, the decisions of national and lower courts, and
scholarly writings. They 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.
Sources of International Law
Primary Sources:
1. Treaties- The general rule is that for a treaty to be
considered a direct source of international law, it
must be concluded by sizable number of states
and thus reflect the will or at least the consensus of
the family of nations.
Question: Are all treaties considered a direct
source of international law? No! If the treaty was
not concluded by great body of states, such as
bilateral treaties. But a bilateral treaty is binding
between the parties especially if a dispute arose
between them.
2. Custom - A practice which has grown up between states and
has come to be accepted as binding by the mere fact of
persistent usage over a long period of time. Custom is
distinguished from usage. The latter while also a long
established way of doing things by states is not coupled with
the conviction that it is obligatory and right.

Requisites/Elements of International Custom:


Duration or long state practice. Consistency of the state
practice or the widespread repetition by states of similar
international acts over time.

Generality of the state practice or that the acts are taken by a


significant number of states and not rejected by a significant
number of states.
Opinio juris sive necessitates or the requirement that the acts
must occur out of a sense of obligation.
Persistent Objector Rule

When a state persistently objects to a rule of customary


international law during the formative stage of the rule, it will not
be bound by it. However, there are some customary rules that
are so fundamental that states are not free to reject them.
International law has accepted the notion of peremptory norms,
or jus cogens, which bind all states.
Primary Sources of International Law

3. General Principles of Law- Mostly derived from the


law of nature and are observed by the majority of
states because they are believed to be good and just
(e.g. prescription, estoppel, consent, res judicata and
pacta sunt servanda).
Secondary Sources: These sources are not authorities
in deciding a case but only have a persuasive effect
because it only shows the interpretation of a state to a
particular international law.

1. Decisions of international tribunals

2. Writings and teachings of the most highly qualified


publicists
What are the grand divisions of PIL?

Laws of Peace – govern normal relations


between States in the absence of war.

Laws of War – govern relations between hostile


or belligerent states during wartime.

Laws of Neutrality – govern relations between a


non‐participant State and a participant State
during wartime or among non‐participating
States.
Obligation Erga Omnes

What is erga omnes?

It is an obligation of every State towards the


international community as a whole. All states have a
legal interest in its compliance, and thus all States are
entitled to invoke responsibility for breach of such an
obligation. (Case Concerning The Barcelona Traction,
ICJ 1970)
Examples of Obligation Erga Omnes

Outlawing of acts of aggression

Outlawing of genocide

Basic human rights, including protection from slavery


and racial discrimination
Jus Cogens

What is jus cogens norm?

A jus cogens norm is a norm 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. (Art. 53,
Vienna Convention on the Law of Treaties)
What norms are considered as jus cogens in
character?

Laws on genocide
Principle of self‐determination
Principle of racial non‐discrimination
Crimes against humanity
Prohibition against slavery and slave trade, and piracy
What is the concept ex aequo et bono?

It is a judgment based on considerations of fairness, not


on considerations of existing law, that is, to simply
decide the case based upon a balancing of the
equities. (Brownlie, 2003)
Does Article 38 of the Statute of the International
Court of Justice which provides the sources of
International Law prejudice the power of the Court
to decide a case ex aequo et bono?
No, if the parties agree thereon. The power to decide ex
aequo et bono involves elements of compromise and
conciliation whereas equity is applied as a part of
normal judicial function. (Brownlie, 2003
What is the principle of Auto‐Limitation?

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. No.L‐26379, Dec. 27, 1969)
RECIPROCITY

In international relations and treaties, the principle of


reciprocity states that favours, benefits, or penalties
that are granted by one state to the citizens or legal
entities of another, should be returned in kind.

For example, reciprocity has been used in the reduction


of tariffs, the grant of copyrights to foreign authors, the
mutual recognition and enforcement of judgments, and
the relaxation of travel restrictions and visa
requirements.

The principle of reciprocity also governs agreements


on extradition
Correlate Reciprocity and the principle of
Auto‐Limitation?

When the Philippines enter into treaties, necessarily,


these international agreements may contain limitations
on Philippine sovereignty. The consideration in this
partial surrender of sovereignty is the reciprocal
commitment of other contracting States in granting the
same privilege and immunities to the Philippines.
TREATIES

A formal agreement, usually but not necessarily in


writing, which is entered into by states or entities
possessing the treaty-making capacity, for the
purpose of regulating their mutual relations under the
law of nations.

It 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.
TREATIES

Executive Agreement- Is not a treaty insofar as the


concurrence thereto of the Senate is not required
under our Constitution.

Note: the distinction is purely municipal and has no


international significance. From the viewpoint of
international law, ―treaties and executive
agreements are alike in that both constitute
equally binding obligations upon the nation.
Kinds of Treaties
Pact – a special treaty which is formally sentimental;
Convention– this is more or less an informal treaty dealing with specific
subjects: sometimes it does not even require ratification.
―Agreement‖/ ―Arrangement‖/ ―Accord‖ – conventions on
administrative or technical matters;
―Concordats‖ – agreement entered into by the Pope (as head of the
church) with various chiefs of States;

Declarations – these are formal reciprocal agreements which may deal


with:

-the rights and privileges of the national of a state;


-principles in accordance with which states propose to act or grounds for
mutual action on the part of states.

Protocol – this may refer either to a supplemental treaty or to an


amendment to a treaty
Treaties, Function

Treaties enable parties to settle finally actual and


potential conflicts.
Treaties make it possible for the parties to modify the
rules of international customary law by means of
optional principles or standards.
They may lead to a transformation of unorganized
international society into one which may be organized
on any chosen level of social integration.
They frequently provide the humus for the growth of
international customary law.
ESSENTIAL REQUISITES OF A VALID TREATY

To be valid, a treaty must:


be entered into by parties with the treaty – making
capacity;
through their authorized representatives;
without the attendance of duress, fraud, mistake or
other vice of consent;
on any lawful subject – matter;
in accordance with their respective constitutional
processes

*The Constitution of the Philippines authorizes the


President to make treaties, subject to the concurrence
of two-thirds of all the members of the Senate.
Steps in Making a Treaty
Negotiation - it is a standard practice for one of the parties to
submit a draft of the proposed treaty, which, together with the
counter – proposals, becomes the basis of the subsequent
negotiations. If and when the negotiators finally agree on the
terms of the treaty, the same is opened for signature.
Ratification - is the formal act by which a state confirms and
accepts the provisions of a treaty concluded by its
representatives. An unratified treaty cannot be a source of
obligations between the parties.
Exchange of the instruments of ratification or deposit with
the government of one of the contracting parties or with an
organ of an international organization.
Registration with and publication by the Secretariat of the
United Nations.
When does a treaty enter into force?

A treaty enters into force in such manner and upon such date
as it may provide or as the negotiating States may agree.
Failing any such provision or agreement, a treaty enters into
force as soon as consent to be bound by the treaty has been
established for all the negotiating States.
Under Art. 102 of the UN Charter, a treaty not
registered with the Secretariat, by which it shall
be published, cannot be invoked before any organ
of the UN. Nevertheless, the treaty does not cease to
be binding between the parties and may be the basis
of litigation before some other arbitral or judicial body
not connected with the UN
BINDING EFFECT OF TREATIES

As a rule, a treaty is binding only on the contracting


parties, including not only the original signatories but
also other states which, although they may not have
participated in the negotiation of the agreements,
have been allowed by its term to sign it later by a
process known as accession.
When 3rd party states bound by Treaty

The treaty may be merely a formal expression of


customary international law which, as such, is
enforceable on all civilized states because of their
membership in the family of nations.
Under Art. 2 of the UN Charter ―The organization shall
ensure that non-member States act in accordance
with the principles of the Charter so far as may be
necessary for the maintenance of international peace
and security.‖
The treaty itself may expressly extend its benefits to
non-signatory states.
RULE ON OBSERVANCE OF TREATIES

General Rule: Pacta sunt servanda – performance in


good faith of treaty obligations

Exception:
Rebus sic stantibus– the doctrine constitutes an
attempt to formulate a legal principle which would
justify non-performance of a treaty obligation if the
conditions with relation to which the parties contracted
have changed so materially and so unexpectedly as
to create a situation in which the exaction of
performance would be unreasonable.
Rebus sic stantibus

It states that a fundamental change of circumstances


which determined the parties to accept a treaty, if it
has resulted in a radical transformation of the extent
of the obligations imposed by it, may under certain
conditions, afford the party affected a ground to
invoke the termination of the treaty. The change must
have increased the burden of the obligations to be
executed to the extent of rendering performance
essentially different from the original intention.
Requisites of Rebus sic stantibus:

The change must not have been caused by the Party invoking
the doctrine
The doctrine cannot operate Retroactively, i.e., it must not
adversely affect provisions which have already been
complied with prior to the vital change in the situation
The change must have been Unforeseen or unforeseeable at
the time of the perfection of the treaty
The doctrine must be invoked within a reasonable Time
The duration of the treaty must be Indefinite
The change must be so Substantial that the foundation of the
treaty must have altogether disappeared
What is the Doctrine of Unequal Treaties?
It posits that treaties which have been imposed through
coercion or duress by a State of unequal character
are void.
What is a reservation? When can it not be made?

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 modify the
legal effect of certain provisions of the treaty in their
application to that State.
Reservations cannot be made if the treaty itself
provides that no reservation shall be admissible, or
the treaty allows only specified reservations which do
not include the reservation in question, or the
reservation is incompatible with the object and
purpose of the treaty.
What are the effects of reservation and of
objections to reservations?
Modifies for the reserving State in its relations with that other
party the provisions of the treaty to which the reservation
relates to the extent of the reservation; and

Modifies those provisions to the same extent for that other party
in its relations with the reserving State.

The reservation does not modify the provisions of the treaty for
the other parties to the treaty inter se.

When a State objecting to a reservation has not opposed the


entry into force of the treaty between itself and the reserving
State, the provisions to which the reservation relates do not
apply as between the two States to the extent of the
reservation.
Are treaties subject to judicial review?

Yes. Even after ratification, the Supreme Court has the


power of judicial review over the constitutionality of
any treaty, international or executive agreement and
must hear such case en banc.
In case of conflict between a treaty and a custom,
which would prevail?
Treaty prevails if the treaty comes after a particular
custom, as between the parties to the treaty,

Customs prevails if the custom develops after the


treaty, it being an expression of a later will.
Distinguish a treaty from an executive agreement.

Treaties ‐ need concurrence of the senate and involve


basic political issues, changes in national policy and
are permanent international agreements.
Executive agreements ‐ need no concurrence from the
senate and are just adjustments of details in carrying
out well established national policies and are merely
temporary arrangements.
Is VFA a treaty or a mere executive agreement?
In the case of Bayan v. Zamora G.R No. 138570, Oct.
10, 2000, VFA was considered a treaty because the
Senate concurred in via 2/3 votes of all its members.
But in the point of view of the US Government, it is
merely an executive agreement.
The constitutionality of the VFA was upheld in Bayan vs.
Zamora, as it complied with the three requirements of Sec. 25,
Art. XVII of the constitution- (a) there must be a treaty, (b)
concurred by the senate, (c) recognized as a treaty by other
contracting state.

The third requirement was met notwithstanding that there was


no concurrence by the US senate as in a case of a treaty. For
as long as the US accepts or acknowledges the VFA as a
treaty, and binds itself further to comply with its obligation under
a treaty there is marked compliance with the mandate of the
constitution.

The distinction between a treaty and executive agreement is


only for the purpose of determining compliance with internal
rules. In international law, an executive agreement is as binding
as a treaty.
May a treaty be modified without the consent of all
the parties?

GR: No

XPN: If allowed by the treaty itself, two states may


modify a provision only insofar as theories are
concerned.
What are the grounds for invalidating a treaty?

Error
Fraud
Corruption of a representative of a State
Coercion of a representative of a State
Coercion of a State by threat or use of force
Violation of jus cogens norm
What are the grounds for termination of a treaty?

*Termination of the treaty or withdrawal of a party in


accordance with the terms of the treaty.
*Extinction of one of the parties to the treaty.
*Mutual agreement of all the parties to terminate the treaty.
*Denunciation of the treaty by one of the parties.
*Supervening impossibility of performance.
*Conclusion of a subsequent treaty inconsistent between the
same parties.
*Violation of the treaty by one of the parties.
*Doctrine of rebus sic stantibus
*Outbreak of war between the parties to the treaty.
*Severance of diplomatic or consular relations
*The emergence of new peremptory norm of general
international law renders void and terminates any existing treaty
in conflict with such norm.
When can the principle of rebus sic stantibus not be
invoked as a ground for terminating or
withdrawing from a treaty?

If the treaty establishes a boundary; or If the


fundamental change is the result of a breach by the
party invoking it of an obligation under the treaty or
of any other obligation owed to any other party to
the treaty.
Interpretation of Treaties

General Rule of Interpretation (Art. 31):

A treaty shall be interpreted in good faith in accordance


with the ordinary meaning to be given to the terms of
the treaty in their context and in the light of its object
and purpose.
The context for the purpose of the interpretation of a
treaty shall comprise, in addition to the text, including
preamble and annexes:
o Any agreement relating to the treaty which was made
between all the parties in connection with the
conclusion of the treaty.

o Any instrument which was made by one or more


parties in connection with the conclusion of the treaty
and accepted by the other parties as an instrument
related to the party.
There shall be taken into account, together with the
context:
o Any subsequent agreement between the parties
regarding the interpretation of the treaty or the
application of its provision.
o Any subsequent practice in the application of the
treaty which establishes the agreement of the parties
regarding its interpretation.
o Any relevant rules of international law applicable in
the relations between the parties.
A special meaning shall be given to a term if its
established that the parties so intended.
SUPPLEMENTARY MEANS OF INTERPRETATION
(ART. 32)
Recourse may be had to supplementary means of
interpretation including the preparatory work of the
treaty and the circumstances of its conclusion, in
order to confirm the meaning resulting from the
application of article 31, or to determine the meaning
when the interpretation according to Art. 31:
Leaves the meaning ambiguous or obscure; or
Leads to result which is manifestly absurd or
unreasonable.
Note: Article 32 is not an alternative recourse in the
interpretation of a treaty; rather it must be taken in
relation to Article 31.
In case of conflict between a treaty and a statute,
which would prevail?
In case of conflict, the courts should harmonize both
laws first and if there exists an unavoidable
contradiction between them, the principle of lex
posterior derogat priori ‐ a treaty may repeal a statute
and a statute may repeal a treaty ‐ will apply. The
later one prevails. In our jurisdiction, treaties entered
into by the executive are ratified by the Senate and
takes the form of a statute
Can the House of Representatives take active part
in the conduct of foreign relations, particularly in
entering into treaties and international
agreements?
No. As held in US v. Curtiss Wright Export Corporation
299 US 304, it is the President alone who can act as
representative of the nation in the conduct of foreign
affairs. Although the Senate has the power to concur
in treaties, the President alone can negotiate treaties
and Congress is powerless to intrude into this.
However, if the matter involves a treaty or an
executive agreement, the HR may pass a resolution
expressing its views on the matter.
What is the “clean slate” rule?

When one State ceases to exist and is succeeded by


another on the same territory, the newly independent
State is not bound to maintain in force, or to become
a party to, any treaty by reason only of the fact that at
the date of the succession of States the treaty was in
force in respect of the territory to which the
succession of States relates.
What are the exceptions to the “clean slate” rule?

When the new State agrees to be bound by the treaties


made by its predecessor;
Treaties affecting boundary regime (utipossidetis)
What is the most‐favored‐nation clause?

It may be defined in general, as a pledge by a


contracting party to a treaty to grant to the other party
treatment not less favorable than that which has been
or may be granted to the “most favored” among other
countries.
THE UNITED NATIONS CHARTER

Amendments to the charter shall come into force for


all members of the UN when they have been adopted
by a vote of 2/3rds of the members of the General
assembly and ratified in accordance with their
respective constitutional processes by 2/3rds of the
members of the UN, including all the permanent
members of the Security Council.
Purposes of the UN [Article 1, UN Charter]:

To maintain international peace and security, and to


that end: and to take effective collective measure for
the prevention and removal of threats to the peace,
and for the suppression of acts of aggression or other
breaches of the peace, and to bring about by peaceful
means, and in conformity with the principles of justice
and international law, adjustment or settlement of
international disputes or situations which might lead to
a breach of the peace.
To develop friendly relations among nations based on
respect for the principle of equal rights and self-
determination of peoples, and to take other
appropriate measures to strengthen universal peace.
To achieve international cooperation in solving
international problems if an economic, social, cultural,
or humanitarian character, and in promoting and
encouraging respect for human rights and for
fundamental freedoms for all without distinction as to
race, sex, language, or religion.
To be center for harmonizing the actions of nations in
the attainment of these common ends.