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Public International Law

International Law - The law which deals with the conduct of states and
international organizations and with their relations inter se, as well as with some of
their relations with persons, whether natural or juridical.

Sources of International Law

Art 38(1) of the Statute of international court of justice (most widely accepted of
sources of law)

1. International Conventions refers to treaties whether general or particular


subject matter. It can be bilateral treaty which involves two states or
multilateral treaty which involves several states.
2. International customs refers to law that evolve through practice of
states. Requisites for a practice of state to become law: (1) that practice must
be consistent, general and must exist for a period of time. (2) That the states
must follow that practice based on their belief obligatory nature of and not
out of convenience.
a. Opinio juris sive necessitates/ opinion juris ( opining of law or
necessity) element of custom. (2nd requisite)
3. General Principles of law common general principles of national law of
the world.
a. Ex Principle of sovereign equality of states, doctrine of res judicata,
estoppels and subrogation.
4. Judicial Decisions not only decisions of international judicial bodies but
also includes decision of international arbitral tribunals.
a. No Stare decisis under Art 59 of ICJ statute decisions of the court no
binding force except for between the parties.
b. Decision ex aequo et bono is allowed, if the parties agree thereto
under art 38(2), ICJ statute. (according to right and good from equity
and conscience)
5. Teachings of publicists considered subsidiary means for the
determination of the rules of law. (secondary)

In case of conflict, which sources should prevail?

Treaties >custom because of the principle of Pacta Sunt Servanda


(agreements are to be kept), subject to the operation of the rules of Jus
Cogens (compelling law).

UN GA Resolutions - Not binding even if adopted unanimously. (can serve


as opinion juris)
Soft Law - Usually take the form of non treaty agreements like Declarations.
(guidelines of conduct) (Not yet legally bound)

Law on Treaties
Treaty - Under General International Law it is defined as legally binding
agreement governed by international law made between international legal
persons recognized as having treaty making capacity. It can be oral and has
not set nomenclature.
- Under Vienna Convention on Law of Treaties it is defined as an
international agreement concluded between states in written form and
governed by international law whether in bodied in a single instrument or two
or more related instruments and whatever its particular designation. (Under
this, only states can make treaties and international organizations cannot.)

Nature of treaty-making

Auto-Limitation of Sovereignty - By their voluntary acts, States may


surrender some aspects of their sovereignty in exchange for greater benefits
granted by or derived from a treaty. (Tanada vs Angara, 1997)

Steps in Treaty-Making (Pimentel vs office of executive secretary)

1. Negotiation President exercises this, Congress needs to concur at least 2/3


to be valid.
2. Adoption and Authentication signing the treaty is to authenticate and
not yet giving consent to be bound.
3. Giving of consent to be bound consent to be bound is given through
ratification by the President and the senate only concurs to the ratification
done by the former.
4. Entry into force once ratification is done the treaty can now enter into
force. The treaty itself can provide the date on when it can come into force.

Observance of treaties

Every treaty in force is binding upon parties to it and must be complied by them in
good faith. Art 16 VCLT (pacta sunt servanda)

Making of Reservations

General Rule When you give consent to be bound, you can make reservations.

Exceptions:

1. Prohibited by the treaty


2. Only Specified reservations are allowed
3. Incompatible with object and purpose of the treaty

Invalidity of consent

1. Manifest violation of internal law of fundamental importance


2. Error of fact or situation
3. Fraud by the other negotiating state
4. Corruption of States representative
5. Coercion of States representative
6. Coercion of the State by the threat or use of force

Termination of Treaties

1. Consent of all parties


2. Conclusion of a later treaty on the same subject matter
3. Material breach
4. Supervening impossibility of performance
5. Fundamental change of circumstances (rebus sic stantibus)
6. Emergence of jus cogens

Treaty Interpretation

1. Objective approach then,


2. Teleological approach then,
3. Subjective approach then,
4. supplementary means travaux preparatoires (final resort)

Unilateral Statements Same effect as treaties. It is binding on the state.

Requisites:

1. Statement by the State


a. Very specific
b. Made with clear intent to be bound
c. Conveyed to the world at large
2. Not to give effect thereto would be detrimental to the security of
international intercourse.

Executive Agreements vs Treaties:

International agreements involving political issues or changes of national


policy and those involving international arrangements of a permanent character
usually take the form of treaties. But international agreements embodying
adjustments of detail carrying out well-established national policies and traditions
and those involving arrangements of a more or less temporary nature usually take
the form of executive agreements.

- Agreement between 2 states is a treaty governed by the Vienna convention


on law of treaties.
- Executive agreement, usually in a form of exchange of notes, is a treaty as
understood in international law, same binding force but the difference is that
it is an agreement where the president can enter alone even without the
concurrence of the senate.

Sec25 Art XVIII, Constitution allowing foreign troops to enter the country must
come in a form of treaty. Not executive agreement.
International Law & National Law

Domestic courts cannot use international law in resolution of disputes unless


international is made part of the national legal system.

International law is made part of the legal system by (1) Doctrine of


Incorporation Art II Sec 2 of the Constitution and (2) Doctrine of transformation
Art VII Sec 21 of the Constitution.

In case of conflict between International law and National law, International law
shall prevail if it is filed in an international tribunal (International Rule) but if it is
filed in a domestic court Municipal Rule will apply which means the Constitution
will always prevail if the International law or treaty is in a form of custom and is in
conflict with the Constitution. If the international law in a form a treaty conflicts with
a statute then whichever is later in time will prevails.

Subjects of International Law

1. States criteria for a state are (1) permanent population (2) defined territory
(3) government (4) capacity to enter into relations with other states
2. International Organization depends on their constitutive treaty
3. Individuals can now (only) be charged before the ICC. (limited capacity)
4. Multinational Corporation if contract is governed by international law
5. Insurgents for purpose of application of Protocol II of the Geneva
Conventions
6. National Liberation Movements for purposes of application of Protocol I
of the Geneva Conventions

Who are the subjects of international law refers to entities that are capable
of possessing and exercising rights and performing obligations under international
law.

- Also called as International Legal Persons.

Main capacities of the subjects of international law

1. Make claims before international and national tribunals


2. Perform international obligations
3. Make valid international agreements
4. Enjoy immunity

Recognition of States

1. Declaratory theory - recognition is not important, recognition is merely


declaratory of the existence of the state. As long as the, criteria for a state is
satisfied, then it is a state.
2. Constitutive theory - you only become a state when other state recognizes
you as a state
Recognition of governments

1. De jure recognition changes of government in a state and is base on


ordinary constitution procedure.
2. De facto recognition change comes about not through ordinary
constitutional procedure

Extinction of statehood If a state subsequently ceases to possess any of the


criteria for statehood, it does not cease to be a state under international law.

- But it is possible for an entity to cease to be an independent state through


lawful means, such as by merger.

State Succession

1. Territory successor state


2. Property successor state
3. Public debts predecessor state
4. Treaties follow the clean slate rule,(exception) subject to the principle of
uti possidetis with respect to treaties concerning boundaries and when the
new state agrees to be bound to the treaties entered by the old state.

Jurisdiction

Territorial sovereignty complete governmental action

Principles of Jurisdiction

1. Territoriality
a. Subjective territoriality crime started in own territory, but
consummated on another territory.
b. Objective territoriality crime started on another territory but was
consummated in our own territory.
- Jurisdiction over foreign merchant vessel
o English rule crime committed in the vessel while docked in our
territory. The state can exercise jurisdiction as long as the vessel is
within our territorial sea. Except when the act purely affect the vessel
or internal matter thereof.(we follow)
o French rule crimes in the vessel are not covered by our jurisdiction
unless the commission affects the peace of the territory.
2. Nationality
3. Protective
4. Universality
5. Passive personality

Extradition It is the surrender of an individual by the State within whose territory


he is found to the State under whose laws he is alleged to have committed or to
have been convicted of a crime.
Fundamental Principle

- No obligation to extradite, unless there is a treaty.

Basic Principle

- Dual Criminality a person may be extradited only when his actions


constitute an offense in both requesting and requested state.
- Speciality an extraditee can only be prosecuted for the offense for which his
extradition is granted.

Nature of extradition proceedings

- Sui generis, non criminal proceeding


o Summary in nature
o Requires only establishment of prima facie case
o Admission of evidence under less stringent standards
o President has the final discretion to extradite or not

Procedure

1. Request extradition made through diplomatic relation.


2. If DOJ finds it sufficient then it will file an extradition case in court.
- Bail in extradition case is a not matter of right but by way of an exception
when the extraditee can prove in court with clear and convincing evidence
that:
o Not a flight risk
o There exist special humanitarian and compelling circumstances
- Grant of bail to extraditee is based on Philippine obligation under the
international law which is the obligation to uphold fundamental human rights
provided in the universal declaration of human rights and in international
covenant civil and political rights

Deportation vs Extradition

Difference in terms of

Basis treaty is needed in extradition, while deportation is an inherent power


of the state
Subjects in extradition you can surrender nationals or aliens compared as to
deportation which applies only to aliens
Reason A person is extradited because he committed a crime of the
requesting state or he is convicted in there already and the requesting state
is requesting for his surrender so that he can start to serve his sentence. In
deportation, alien is deported because his presence in the country is
injurious.
Destination the extraditee is surrendered to the requesting state while the
deportee is send to the country before he came to the country or to the
country of his nationality.

Diplomatic and Consular Immunity

1. Diplomatic immunity 1961 Vienna Convention on Diplomatic Relations


2. Consular Immunity - 1963 Vienna Convention on Consular Relations

Diplomatic Immunity

1. Head of mission (ambassador/ charge daffaires) & Diplomatic Staff


totally immune from criminal jurisdiction. Immune in civil jurisdiction except
in (1) actions that relate to private real property, (2) succession under a will,
and (3) any action relating to any professional and commercial activity
outside his official functions.
2. Administrative & Technical Staff also immune, in civil jurisdiction not
totally immune, they are immune only to the acts done in performance of
their official duty.
3. Service Staff only immune in the acts of performance of duties. (criminal
and civil jurisdiction)
4. Private Servants depend on the law of the residing state.(same in criminal
and jurisdiction)

Residents are inviolable, property, correspondence and papers. (applies to all)


Payment of taxes is exempt. (Exception indirect taxes incorporated in
the price of goods and services and taxes on their private lands and income.)
(applies to all)

Consular Immunities

1. Consular Officers - in civil jurisdiction, immune only with respect to the


acts performed by him in the exercise of their consular functions
2. Administrative & Technical Staff In civil jurisdiction, immune only to
those granted by the residing state.
3. Service staff -
4. Private servants -
All of them are not immune in criminal jurisdiction except consular officer
because they cannot be detained pending trial unless in a case of a grave
crime and pursuant to the decision of the court. They cannot also be
committed to prison unless by final judicial decision.
Their families are not immune at all.
With respect to their residence, property, correspondence and papers are not
inviolable
Payment of taxes for consular offices and administrative & technical staff and
their families are exempt except to payment of indirect taxes incorporated in
the prices of goods and sevices and taxes on their private lands and personal
income. For Services staff exempt only to taxes on their wages. Private
servant not exempt.

Immunity of Embassy/ Consulate

1. Premises
2. Property & Means of Transport
3. Archives & Documents
4. Official Correspondence
5. Diplomatic / Consular Bag
6. Payment of taxes
All are inviolable

Remedies in case of abuse

1. Ask for waiver of immunity


2. Cease to consider the abusive official as a member of the embassy or
consulate, if after the Receiving state has declared such official as persona
non grata, the Sending state refused or failed w/in a reasonable period to
recall the official or terminate his function.

Immunity of International Organizations

As may be provided in their respective constitutive treaties or charters


Their officers only enjoys immunity with respect to acts performed by them in
their official capacity

State Responsibility - when the state violates an international obligation owned


to another state.

Elements of State responsibility

1. Unlawful act or omission


2. Attributability of the act to the state.

In nicaraugua vs us, the court ruled that for a state to be responsible for the acts of
the rebels. It must show that the alleged state has a direct control over the rebels.
In the case at even though that it is alleged that the US is funding the rebels in
Nicaragua, it is shown that the rebels were not in direct control of the US.

Standard of treatment

1. International Minimum standard irrespective how the national law allow


the state to treat its own citizen, it must treat foreigners within its territory
with reference to international minimum standard.
2. National standard the state should treat its foreigners the same way as
its nationals.
- Neither standard is obligatory in international law but the pragmatic approach
is to consider the standard of care to vary depending on type of obligation in
question.
Ex. Human rights follows the international minimum standard and in property,
national standard.
Consequences of state responsibility
Obligation to make reparations
o Official apology
o Restitution of property
o Monetary compensation
o Any combination of the three
Countermeasures

Right of Diplomatic Protection it is the right of the state to file a claim against
another state and respect to the injury to itself that has been perpetrated by one of
its nationals.\

- Purposes is for reparation.

Requisites for admissibility of claim

1. Genuine/ Effective nationality link


2. Exhaustion of local remedies

Waiver of protection

Calvo Clause Contractual clause whereby a foreign national agrees in


advance to submit all disputes to local courts & waives his entitlement to
diplomatic protection

Law of the sea

Governing treaty is the United Nations Convention of the Law of the Sea (UNCLOS)

Maritime zones

1. Territorial sea extent is 12 nautical miles from the baseline.


a. State has sovereignty within its territory sea
b. Obligation is to allow innocent passage of other vessels
2. Contiguous zone extent is 24 nautical miles from the baseline
a. State has no sovereignty but can exercise control for purposes of
prevention of an infringement of its custom fiscal in relation or sanitary
laws within its territory and the punishment of such infringement.
3. Exclusive economic zone 200 nautical miles from the baseline (cannot
exceed 200 nautical miles )
a. No sovereignty but the state is only given sovereign rights or exclusive
rights. Meaning it has the right to explore the living and non-living
resources or wonders of the sea.
b. Obligation to respect freedom of navigation, freedom of over flight and
the right to place some marine cables of the other state
4. Continental shelf/ Extended continental shelf 200 nautical miles from
the baseline but there can be an extended continental shelf which is an
addition of 150 nautical miles in the total of 350 nautical miles
a. Also exclusive rights to enjoy resources, no sovereignty.
b. Obligation is to give a percentage of its revenues to the international
seabed authority if the exploration is done in the extended continental
shelf.
5. High seas is beyond 350 nautical miles from the baseline
a. All state enjoy the freedom of the high seas
i. Freedom of navigation
ii. Freedom of over flight
iii. Freedom to lay submarine cables and pipelines
iv. Freedom to construct artificial islands and other installations
v. Freedom of fishing
vi. Freedom of scientific research

Drawing of Baseline

1. Normal Baseline Method


2. Archipelagic Baseline Method ( we follow )

Archipelagic Doctrine under art 1 of the constitution, the waters around ,


between, and connecting the islands of the archipelago, regardless of their breadth
and dimensions, form part of the internal waters of the Philippines.

Archipelagic waters

Burdens:

1. Archipelagic Sea Lanes Passage refer to routes normally used for


international navigation
2. Innocent Passage must not prejudice the peace, good order and security of
the coastal State.

Dispute Settlement

1. International tribunal for the Law for the Sea (ITLOS)


2. International court of justice (ICJ)
3. Arbitration
4. Annex VIII Special Arbitration

International Human rights

3 treaties that govern

1. Universal Declaration of Human Rights (UDHR)


2. International Covenant on Civil and Political Rights (ICCPR)
3. International Covenant on Economic, Social and Cultural Rights
(ICESCR)
- All three are considered as the international bill of rights applicable to all
citizens including refugees and stateless persons

International Humanitarian Law

Law of war/ law of armed conflict

The governing treaties are

1949 Geneva Conventions

I. Wounded &sick Members of the armed forces in the field


II. Wounded, sick and shipwrecked members of the armed forces at sea
III. Prisoners of war
IV. Civilians

Two types of wars covered


1. International Armed Conflict
a. State vs State
b. Wars of national liberation
2. Non-international armed conflict
a. State vs a non-state organized group, eg rebel

International Environmental Law

1972 Stockholm Declaration

- 1st international document to recognize the right to a healthy environment


- Principle 21: now considered part of customary law, provides that a state
must ensure that activities within its territory do not cause damage to the
environment of other states or areas beyond national jurisdiction

International economic Law

World trade organization

- Came into existence of 14 December 1994


- Philippines is a founding member
- Philippine membership thereto is upheld by the Supreme court vs
constitutional in Tanada vs Angara

Key Principles

1. Most favoured Nation similar treatment of like goods of trading partners


2. National Treatment similar treatment between domestic & foreign products

Treaties in Intellectual Property


- Entered into force for the Philippines on 27 September 1965
- Obligation to grant same protection to nationals of the other contracting
States with respect to their trademarks, trade names, service marks