PUBLIC INTERNATIONAL LAW

PRE-FINALS TRANSCRIPT
ATTY. ACABODILLO
SY 2013-2014

TREATY-defined as 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 instruments and whatever its
particular designation (Vienna Convention on the Law of
Treaties).
-an agreement between States, including international
organizations of States, intended to create legal rights and
obligations of the parties thereto.

Vienna Convention- the primary & written source of the

law on treaties. The convention not only codified the
existing customary rules of international law on the subject
but it also added new provisions. However, rules of
customary internatl law, w/c were not reflected in the
Convention will remain and continue to govern questions
w/c are not regulated by the Convention.

Doctrine of Incorporation- the Philippines adopt the

generally accepted principles of international law as part
of the law of the land.

The primary basis of having treaties or conventions is the

principles of international law. The very source of this
treaty that we observed is the proceedings of the Vienna
Convention wherein we have treaties, agreement between
states.
-2 aspects of this agreement: agreements between the
states and agreement between internatl organization
-This should be related w/ what we call as Municipal Law
or Private International Law.

of the State or his authorized representative. In the

process of negotiation, there is what we call
PREPARATORY STEPS. In statutory construction or
interpretation of provisions of a treaty, 1 point to be
considered is the preparatory steps.
-the representatives of the parties are usually armed
w/ credentials known as pleine pouvoirs or full
powers, w/c is a document emanating from competent
authority of a State designating a person or persons
to represent the State for negotiating, adopting or
authenticating the text of a treaty, expressing the
States consent to be bound by a treaty, or
accomplishing any other act w/ respect to a treaty.
However, even w/o such full powers, it has been the
general practice to consider the ff as representatives
of the State for treaty negotiation: Head of State,
Head of Govt, the Foreign Minister, the head of
diplomatic missions and the representative accredited
by the State to an internatl conference or to an
internatl organization.

SIGNATURE- the President shall sign for and in behalf of

the negotiating state.
-the principle of alternat is observed,
accdg to w/c the order of the naming of the parties and of
the signatures of the plenipotentiaries is varied so that
each party is named and its plenipotentiary signs first in
the copy of the instrument to be kept by it.

RATIFICATION- in our Constitution we held that every

treaty shall be ratified by the Senate.
-the act by w/c the provisions of a treaty are
formally confirmed and approved by a State, and by w/c
the State expresses its willingness to be bound by the
treaty.

Ratification- for a treaty or agreement to a treaty to be

implemented or observed in our jurisdiction we have
the provision under Constitutional ratification. It is the
Senate in the Philippines that is tasked in the
ratification.
-other States use only the term adoption
Adoption: formal act by w/c the form and content of a
proposed treaty text are established.

International Court of Justice (ICJ)

Q: Will the ICJ be governed purely by the international
law?
A: Generally, the international law shall govern but there
are some cases that we disregard international law in
favor of equitable considerations, if the parties agree.
Between states- public internatl law shall govern
Between citizens of fellow states- private int law

Conflict of Law cases- determine 1st if there is jurisdiction

of subject matter & jurisdiction of the parties. Assuming
there is jurisdiction, can we handle the case? NO because
of sovereignty and of forum non conveniens.

Doctrine of Immunities- the state cannot be sued w/o its

consent.

How will an amendment of a treaty stipulation be done in

order for it to be effective? This is a case to be decided by
the ICJ. To amend or modify provisions of the treaty, the
consent of all the parties is required. However, if allowed
by the treaty itself, two States may modify a provision only
insofar as they are concerned.

Every consular or diplomatic officer of the state is said to

be an extension of that state.

Treaty-making Process involves negotiation, signature,

ratification, & exchange of instruments of ratification.

1st step in having a treaty: NEGOTIATION- usually initiated

by the President or Prime Minister or an Executive Head

Sec. 21, Art VII, 1987 Constitution

In the Philippines, the power to ratify a treaty is vested in
the President, subject to concurrence by 2/3 of all the
members of the Senate.
Pimentel vs Office of Executive Secretary
The SC said that in our system of govt, the President,
being the head of State, is regarded as the sole organ and
authority in external relations and is the countrys sole
representative w/ foreign nations. As the chief architect of
foreign policy, the President acts as the countrys
mouthpiece w/ respect to internatl affairs. The President is
vested w/ the authority to deal w/ foreign states and govts,
extend or w/hold recognition, maintain diplomatic relations,
enter into treaties, & otherwise transact the business of
foreign relations. Thus, the President has the discretion,
even after the signing of the treaty by the Phil
representative, whether or not to ratify the same.
Accordingly, w/o the Presidents consent, the Executive
Secretary and the Secretary of Foreign Affairs may not be
compelled by mandamus to transmit a copy of the Rome
statute signed by a member of the Philippine mission to
the UN to the Senate for concurrence.

CONCURRENCE-what states must agree

EXCHANGE DOCUMENTS-the treaty becomes fully

effective.

Interpretation of Treaties- if the provision is clear and no

ambiguity exists, we should direct to the meaning that
appears at the law itself. if there are provisions w/c are
ambiguous then the rule of statutory construction comes
in. In this case, go back to our preparatory steps if the
treaties come w/ ambiguities.
-A treaty shall be interpreted in good faith, in
accordance w/ the ordinary meaning given to the
terms of the treaty in their context and in the light of its
objects and purposes. To be considered in the
interpretation are its text, preamble, annexes, as well as

other agreements relating to the treaty and subsequent

agreements entered into by the contracting parties.

Pacta sunt servanda- w/c requires that treaties must

be observed in good faith. If necessary, the State
concerned must even modify its national legislation &
constitution to make them conform to the treaty, in
order to avoid international embarrassment. In the
Philippines, however, treaties may be declared invalid
if contrary to the Constitution.

TANADA vs ANGARA
The SC ruled that treaties do indeed limit or restrict
the sovereignty of a State. By their voluntary act, States
may surrender some aspects of their power in exchange
for greater benefits granted by or derived from a
convention or pact. Under the rule of pacta sunt servanda,
a State is bound to make such modifications it its laws as
may be necessary to ensure the fulfillment of the
obligations undertaken under the treaty.

Exceptions when individuals can sue for treaty rights

Kolovrat vs Oregon
Treaty protects aliens rights to inherit property,
preventing state from taking property for itself.

in recognition of such obligation that petitioner

entered into the aforementioned Compromise
Agreement.

Basically a treaty has 2 aspects: international

agreements between the states and the municipal law
of peoples of the state.

What could be the basis for us to observe treaty

stipulations? It is based upon our Constitutional
provision that we generally accept principles of
international law and adopt the same as part of the
law of the land. (Doctrine of Incorporation)

Raegan Case-we exercise the taxing power of the

state. Basically because municipal law shall prevail
over international agreements.

Law On Succession of Estates- that portion of an

estate w/c is reserved for the compulsory heirs.
Meaning Philippine citizens can execute will &
testament but he has to observe that legitime. He may
dispose of whatever he wants to and whomsoever he
wants to give it the half portion of his estate but the
other is reserved as legitime.
-In our estate, there is what we call
as free portion which refers to the portion
reserved to the compulsory heirs, in other words
legitime. This right can only be availed of by the
legitimes upon the death of the testator of the estate
but while still alive, he can do anything he wants
about it.

There is a case regarding a foreigner owning

properties in Nevada. Unfortunately has no estate in
the Philippines for his children. In the Phils., the 2
children claimed legitime. The SC ruled that the 2
children being not included in the testament in
Nevada cannot claim anything. Why? In Renno,
Nevada there is no law regarding legitime
(compulsory inheritance of portion of the property
of the testator).

Suppose there is a conflict between a treaty wherein

the Phils is a signatory and the 1987 Constitution of
the Phils., which shall prevail? The 1987 Constitution
shall prevail. Therefore, we treat our municipal law as
supreme over international treaty or agreement.

Can a treaty nullify a law? Of course not. The

municipal law shall always prevail.

A particular statute over a specific statute prevails

over a general one. It is because a specific statute
particularly refers to a specific subject matter.

Suppose a special law run counters to a treaty or

agreement. Which shall prevail? The special law.

Cook vs US
Violation of a treaty w/ Great Britain preventing
seizure of British vessel was a defense against action
for civil penalty against ship attempting to smuggle
liquor into the US.
Ware vs Hylton
Treaty allowed plaintiffs, who were British creditors, to
recover debts from citizens of Virginia despite a state
law canceling those debts.

There is another case involving the Armed Forces.

The affected EE were members of a labor union. And
these ER based upon a particular provision of a
treaty, invoked that they cannot be forced to hire.
And these EE even members of a union are
supposed to be rehired. The SC ruled that the
dismissed EE though members of a union have the
right or entitled to reinstatement. This is a case where
there is a conflict between an international law and a
municipal law. Municipal law should prevail. And the
basis is our sovereign power.
Guerreros Transport Services vs Blayblock
Services
Involved in this case is Sec.6 of Art 1 of the
Phil-US Labor Agreement, pursuant to w/c the US
Armed Forces undertook to provide security for
employment, and in, the event certain services are
contracted out, the US Armed Forces shall require the
contractor or concessionaire to give priority
considerations to affected EE for employment.
The US Armed Forces bided out the
transportation service in is leased areas, w/c was won
by Guereros Transport Services. However, the latter
refused to employ affected EE, members of the union,
and they were forced to file a complaint w/ the NLRC,
invoking the treaty provision commitment of the US
Armed Forces, w/c benefited the former EE. The
NLRC ordered the transportation company to employ
the union EE, and a compromise to that effect was
executed, and the former EE were thus employed.
The SC remarked: A treaty has 2 aspects- internatl
agreement between states, and as municipal law for
the people of each state to observe. As part of the
municipal law, the aforesaid provision of the treaty
enters into and forms part of the contract between
petitioner and the US Naval Base authorities. In view
of said stipulation, the new contractor is, therefore,
bound to give priority to the employment of the
qualified EE of the previous contractor. It is obviously

Garcia vs Pascual 113 Phil Reports 62

A substantially similar rule prevails in cases where the
two conflicting provisions are found in different statutes
relating to the same subject. It is an established rule in the
construction of statutes that a subsequent act treating a
subject in general terms, and not expressly contradicting
the provisions of a prior special statute, is not to be
considered as intended to affect the more particular and
specific provisions of the earlier act, unless it is absolutely
necessary so to construe it in order to give its words any
meaning at all. Hence, where there are two acts or
provisions, one of which is special and particular, and
certainly includes the matter in question, and the other
general, which, if standing alone, would include the same
matter, and thus conflict with the special act or provision,

the special act must be taken as intended to constitute an

exception to general act, as the legislature is not
presumed to have intended a conflict. Thus, when the
provisions of a general law, applicable to the entire state,
are repugnant to the provisions of a previously enacted
special law, applicable in a particular locality only, the
passage of such general law does not operate to modify or
repeal the special law, either wholly or in part, unless such
modification or repeal is provided for in express words, or
arises by necessary implication. (pp. 328-329. Black on
Interpretation of Laws.)

and cities where a majority vote in favor of the Organic Act

shall be included in the autonomous region. The provinces
and cities wherein such a majority is not attained shall not
be included in the autonomous region. It may be that even
if an autonomous region is created, not all of the thirteen
(13) provinces and nine (9) cities mentioned in Article II,
section 1 (2) of R.A. No. 6734 shall be included therein.
The single plebiscite contemplated by the Constitution and
R.A. No. 6734 will therefore be determinative of (1)

Butuan Sawmill vs City of Butuan 16 SCRA 758

Where there are two statutes, the earlier
special and the later general the terms of the
general broad enough to include the matter provided
for in the special the fact that one is special and
the other is general creates a presumption that the
special is to be considered as remaining an exception
to the general, one as a general law of the land, the
other as the law of a particular case. (State vs. Stoll,
17 Wall. [U.S.], 425) (Manila Railroad Co. vs. Rafferty,
40 Phil. 224)

whether there shall be an autonomous region in Muslim

Mindanao and (2) which provinces and cities, among
those enumerated in R.A. No. 6734, shall compromise it.
It will readily be seen that the creation of the autonomous
region is made to depend, not on the total majority vote in
the plebiscite, but on the will of the majority in each of the
constituent units and the proviso underscores this. for if
the intention of the framers of the Constitution was to get
the majority of the totality of the votes cast, they could

If our Congress passes a law, then it would appear

that this special law passed by our Congress violates
an internatl agreement. How shall we resolve the
conflict? There are provisions in our law which we
termed as extraterritorial application. Meaning it can
be effected even beyond the territorial jurisdiction of
the Phils. If this will not convene or violate a treaty
stipulation w/c we are not part of, then it could be
effected in an extraterritorial way.

have simply adopted the same phraseology as that used

for the ratification of the Constitution, i.e. the creation of
the autonomous region shall be effective when approved
by a majority of the votes cast in a plebiscite called for the
purpose.
It is thus clear that what is required by the Constitution is a
simple majority of votes approving the organic Act in
individual constituent units and not a double majority of the
votes in all constituent units put together, as well as in the

individual

Abas vs COMELEC 179 SCRA 287

constituent

units.

Facts: The arguments against R.A. 6734 raised by

More importantly, because of its categorical language, this

petitioners may generally be categorized into either of the

is also the sense in which the vote requirement in the

following:

plebiscite provided under Article X, section 18 must have

(a) that R.A. 6734, or parts thereof, violates the

been understood by the people when they ratified the

Constitution,and

Constitution.

(b) that certain provisions of R.A. No. 6734 conflict with

the
Petitioner

Tripoli
Abbas

unconditionally

argues

creates

an

Agreement.
that

R.A.

autonomous

No.

6734

region

A treaty is concluded subsequent to a statute on the

same subject matter(nag-una ang statute ug kahimo
sa treaty). How are we going to construe? That
particular treaty concluded after a passage of a
statute can be treated either as modification of a
statute. But sometimes there can be a provision of a
statute w/c is inconsistent w/ a treaty. The treaty can
be a modification but it must be properly expressed by
the Congress itself.

A treaty can never curtail nor restrict the scope of the

police powers of the state.

Termination of a Treaty Stipulation (EXCUSES FROM

TREATY OBLIGATIONS):
Expiration of the term, or w/drawal of a party in
accordance w/ the treaty
Extinction of 1 of the parties to the treaty, when the
rights & obligations under the treaty would not
devolve upon the State that may succeed the extinct
State
Mutual agreement of all the parties
Denunciation or desistance by 1 of the parties (Right
of Denunciation)
Supervening impossibility of performance
Conclusion of a subsequent inconsistent treaty
between the parties
Loss of subject matter
Material breach or violation of a treaty
The application of the doctrine of rebus sic stantibus.
Rebus sic stantibus-means that a contracting States
obligations under a treaty terminates when a vital or
fundamental change of circumstances occurs, thus
allowing a State to unilaterally w/draw from a treaty,

in

Mindanao, contrary to the aforequoted provisions of the

Constitution on the autonomous region which make the
creation of such region dependent upon the outcome of
the

plebiscite.

In support of his argument, petitioner cites Article II,

section 1(1) of R.A. No. 6734 which declares that [t]here
is hereby created the Autonomous Region in Muslim
Mindanao, to be composed of provinces and cities voting
favorably in the plebiscite called for the purpose, in
accordance with Section 18, Article X of the Constitution.
Petitioner contends that the tenor of the above provision
makes the creation of an autonomous region absolute,

a.
b.

such that even if only two provinces vote in favor of

autonomy, an autonomous region would still be created
composed of the two provinces where the favorable votes
were obtained.

c.
d.

The matter of the creation of the autonomous region and

e.
f.

its composition needs to be clarified.

Held: Thus, under the Constitution and R.A. No 6734, the
creation of the autonomous region shall take effect only
when approved by a majority of the votes cast by the
constituent units in a plebiscite, and only those provinces

g.
h.
i.

j.
k.
l.

because of the disappearance of the foundation upo

w/c it rests.
The outbreak of war between the parties, unless the
treaty precisely relates to the conduct of war.
Severance of diplomatic relations, only if the
existence of such relationship is indispensable for the
application of the treaty.
The doctrine of jus cogens, or emergence of a new
peremptory norm of general internatl law w/c renders
void any existing treaty conflicting w/ such norm.
Doctrine of jus cogens- customary internatl law has
the status of a peremptory norm of internatl law,
accepted & recognized by the internatl community of
states as a rule from w/c no derogation is permitted.

A treaty may sometimes protect an aliens right to

inherit property. (Kolovrat vs Oregon)

Sometimes the interpretation of the provisions of a

treaty may vary. It might happen that anothers states
interpretation is different from ours but because of
doctrine of incorporation, we may incorporate such
interpretation.

Therefore we do not lose heart. Though outwardly we are wasting

away, yet inwardly we are being renewed day by day. For our light
and momentary troubles are achieving for us an eternal glory that far
outweighs them all. So we fix our eyes not on what is seen, but on
what is unseen. For what is seen is temporary, but what is unseen is
eternal. -2 Corinthians 4:16-18