Topic 1 What the functions of Public International Law?

A. The maintenance of international peace and order;

Definition of Public International Law B. The protection of State rights and of fundamental human rights thru sanctions,
both peaceful and coercive;
1. Traditional: That branch of public law which regulates the relations of States C. The economic, social, cultural and technological development of states and such
and of other entities which have been granted international personality. other entities as may be possessed of an international personality.
[This definition focuses on subjects, which are entities which possess international
personality and with rights and obligations recognized under international law, as against Kinds of International Law; Difference
objects, which are persons or things in respect of which rights are held and obligations
assumed by the subjects of international law.] Public international law governs the relationships between and among states and
The traditional definition of international law is that it is a body of rules and also their relations with international organizations and individual persons.
principles of action which are binding upon civilized states in their relations to one another.
States are the sole actors in this definition and, in the past, public international law dealt Private international law is really domestic law which deals with cases where
almost exclusively with regulating the relations between states in diplomatic matters and foreign law intrudes in the domestic sphere where there are questions of the applicability
in the conduct of war. of foreign law or the role of foreign courts.
2. Modem: The law that deals with the conduct of States and international
organizations, their relations with each other and, in certain circumstances, their relations PUBLIC PRIVATE
with persons, natural or juridical [American Third Restatement] NATURE Public is international in As a rule, Private is national or
nature. It is a law of a municipal in character, except
- Is the body of legal rules, which apply to sovereign states and such other sovereign power over those when embodied in a treaty or
entities that have been granted international personality. subjected to his sway. convention, and becomes
- Continuing process of authoritative decisions which include policy (International) international in character. It is a
considerations forming an integral part of the decision making process. law, not above, but between
[Jocelyn Higgins] sovereign states and is,
- It is a body of legal principles, norms and processes which regulates the therefore, a weaker law.
relations of States and other international persons and governs their conduct (Municipal)
affecting the interest of the international community as a whole (Magallona SETTLMENT Disputes are resolved through Recourse is with municipal
2005). OF DISPUTE international modes of tribunals through local and
settlement, like negotiations administrative and judicial
Why is Public International Law observed? and arbitrations, reprisals and processes.
even war. (International (Local Tribunals)
Answer: States observed Public International Law because of their: modes)
1. Belief in the reasonableness of the Law of Nations. SOURCE Derived from such sources as Derived from the statutes and
2. Fear of being unconventional. international customs, laws of the
3. Fear of reprisal from other states. international conventions and law making authority of each
the general principles of law state.
 SUBJECT Applies to relations of states Regulates the relations of 3. The Eclectic or Grotian School. In so far as it conforms to the dictates of right
(Parties) inter se and other international individuals whether of the same reason, the voluntary law may be said to blend with the natural law and be, indeed, an
persons. (International nationality or not. (Private expression of it. In case of conflict, the natural law prevails, being the more fundamental
Entities) Persons) law.
RESPONSIBILI Infractions are usually Generally, entails only
TY FOR collective in the sense that it individual responsibility. Proposes that both the law of nature and the consent of States serve as basis of
VIOLATION attaches directly to the state (Sheriff/Police) international law; to the effect that the system of international law is based on the dictate
and not to its nationals. of right reason as well as the practice of states.
(International Sanctions)
Accepts the doctrine of natural law, but maintained that States were accountable
Basis of Public International Law only to their own conscience for the observance of the duties imposed by natural law, unless
they had agreed to be bound to treat those duties as part of positive law.
1. The Law of Nature School. There is a natural and universal principle of right and
wrong, independent of mutual intercourse or compact, which can be discovered and Grand Divisions of Public International Law
recognized by every individual through the use of his reason and conscience. Since
individuals compose the State whose will is but the collective will of the inhabitants, the 1. Laws of Peace – govern normal relations between states in the absence of war.
State also becomes bound by the law of nature. 2. Laws of War – govern relations between hostile or belligerent states during
wartime.
2. The Positivist School. The binding force of international law is derived from the 3. Laws of Neutrality – govern relations between a non-participant state and a
agreement of the States to be bound by it. In this context, international law is not a law of participant state during wartime. This also refers to the relations among non-
subordination but of coordination. participating states.

The positivist approach reinterpreted international law not on the basis of concepts
derived from reason but rather on the basis of what actually happened in the conflict
between states. With the emergence of the notion of sovereignty of states came the view of
law as commands originating from a sovereign and backed up by threats of sanction if
disobeyed. In this view, international law is not law because it does not come from a
command of a sovereign. Neither treaties nor custom come from a command of a
sovereign.
Theories
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.)

Basis: Found in the consent and conduct of States.
Implied consent in the case of customary international law.
Express in conventional law.
Presumed in the general law of nations. (Cornelius Van Bynkershoek)
Command theory. In the view of John Austin, a renowned legal philosopher, law
consists of commands originating from a sovereign and backed up by threats of sanction if
disobeyed. In this view, international law is not law because it does not come from a
command of a sovereign. Neither treaties nor custom come from a command of a
sovereign. This theory, however, has generally been discredited. The reality is that nations
see international law not as commands but as principles for free and orderly interaction.
 Consensual theory. Under this theory, international law derives its binding force
from the consent of states. Treaties are an expression of consent. Likewise, custom, as
voluntary adherence to common practices, is seen as expression of consent. In reality,
however, there are many binding rules which do not derive from consent.
Natural law theory. The natural law theory posits that law is derived by reason
from the nature of man. International law is said to be an application of natural reason to
the nature of the state-person. Although the theory finds little support now, much of
customary law and what are regarded as generally accepted principles of law are in fact an
expression of what traditionally was called natural law.
Some dissenters, however, see no objective basis for international law. They see
international law as a combination of politics, morality and self-interest hidden under the
smokescreen of legal language.
Doctrine of Transformation (Tañada vs. Angara)
The doctrine of transformation requires the enactment by the legislative body of
such international law principles as are sought to be part of municipal law.
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, “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 v. Angara, 272 SCRA 18 [1997], En Banc [Panganiban]
By their inherent nature, treaties really limit or restrict the absoluteness of
sovereignty. By their voluntary act, nations may surrender some aspects of their state power
in exchange for greater benefits granted by or derived from a convention or pact. After all,
states, like individuals, live with coequals, and in pursuit of mutually covenanted objectives
and benefits, they also commonly agree to limit the exercise of their otherwise absolute
rights. Thus, treaties have been used to record agreements between States concerning such
widely diverse matters as, for example, the lease of naval bases, the sale or cession of
territory, the termination of war, the regulation of conduct of hostilities, the formation of
alliances, the regulation of commercial relations, the settling of claims, the laying down of
rules governing conduct in peace and the establishment of international organizations. The
sovereignty of a state therefore cannot in fact and in reality be considered absolute. Certain
restrictions enter into the picture: (1) limitations imposed by the very nature of membership
in the family of nations and (2) limitations imposed by treaty stipulations.
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: Whether or not 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.
- In executive agreements- the concurrence of the senate is not needed
(Commissioner of Custom vs. Eastern Trading, 3 SCRA 351).
Doctrine of Incorporation (Kuroda vs. Jalandoni)
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 Sec. 2 Article II of the Constitution
states that, “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
 The doctrine of incorporation is expressed in Sec. 2, Art. II, Philippine
Constitution, as follows: “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”. See: Kuroda vs. Jalandoni, 83 Phil. 171 (although the Philippines
was not a signatory to The Hague and Geneva Conventions, international jurisprudence is
automatically incorporated in Philippine law, thus making war crimes punishable in the
Philippines); Lo Ching vs. Archbishop of Manila, 81 Phil 601; Borovsky vs. Commissioner
of Immigration, G.R. No. L-4362 (1951) (where prolonged detention of a stateless alien
pending deportation was deemed illegal, citing the Universal Declaration of Human Rights
which is incorporated in Philippine law).
Examples of “generally accepted principles of International Law”
1. Pacta sunt servanda
2. Rebus sic stantibus (agreement is valid only if the same conditions prevailing
at time of contracting continue to exist at the time of performance)
3. Par in parem non habet imperium (State Immunity from Suit)
4. Right of states to self-defense
5. Right to self-determination of people
The fact that international law has been made part of the law of the land does not
pertain to or imply the primacy of international law over national or municipal law in the
municipal sphere. The doctrine decrees that rules of international law are given equal
standing with, but are not superior to, national legislative enactments. Accordingly, the
principle lex posterior derogat priori takes effect — a treaty may repeal a statute and a
statute may repeal a treaty (Secretary of Justice v. Judge Lantion and Mark Jimenez)
Kuroda vs. Jalandoni (83 P 171)
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: Whether or not Kuruda can be tried in the Philippines.
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.
Scope of State Responsibility
THE DOCTRINE OF STATE RESPONSIBILITY TO ALIENS
A state is under obligation to make reparation to another state for the failure to
fulfill its primary obligation to afford; in accordance with international law, the proper
protection due to an alien who is a national of the latter state.
Under this doctrine, a state may be held responsible for:
1. An international delinquency
2. Directly or indirectly imputable to it.
3. Which causes injury to the national of another state. Liability will attach to the
state where its treatment of the alien falls below the international standard of justice. Or
where it is remiss in according him the protection or redresses that is warranted by the
circumstances.
TYPES OF STATE RESPONSIBILITY
1. Direct Responsibility- Attaches to the state if the wrongful act/omission was
effected through any of its superior organs acting on its behalf.
2. Indirect Responsibility- Acts of the following are attributable to the state:
- State organs
- Other persons exercising elements of governmental authority in the
absence or default of the official authorities and in circumstances calling
for the exercise of those elements of authority.
- Insurrectional or other movement which becomes the new government.
 Note: In case of injuries inflicted upon a foreigner in the course of quelling
rebellion, state responsibility will attach only if the rebellion succeeds and the rebels will
take control of the state, but not when the legitimate government remains in power as the
act of quelling rebellion is a valid exercise of defense. State liability will attach only if it
fails to observe the minimum international standard for the protection of aliens.
Instances of International Delinquency
- Violation of a treaty
- Denial of the injured alien to access the court
- The state where the injury happened did not institute measures to prevent the
incident.
- The state concerned did not investigate the incident.
Doctrine of State Responsibility.
The customary law doctrine on the protection of aliens should be seen in relation
to the doctrine on “state responsibility.” When an injury has been inflicted, there is need to
determine whether the state can be held responsible for it. One of the principles most
strongly held by states is that if a state violates a customary rule of international law or a
treaty obligation, it commits an “internationally wrongful act.” The International Law
Commission for some years now has been working on the codification of the law on the
subject. At its fifty-third session (2001), the International Law Commission adopted on
second reading a complete text of the Articles on Responsibility of States for
Internationally Wrongful Acts. The Articles have been referred to the General Assembly
for consideration.
Although its work has not yet been finalized, much of what it has done so far
consists of principles which are widely accepted. What need to be understood are: (1) the
elements of an internationally wrongful act; (2) the attributability of the wrongful act to the
state; and (3) the enforcement of the obligation that arises from the wrongful act. Excerpts
from the
Requisites
 An act or omission in violation of international law
 Which is imputable to the state, and
 Which results in injury to the claimant state either directly or indirectly through
damage to a national.
Liability will attach to the state where its treatment of the alien falls below the
international standard of justice or where it is remiss in according him the protection or
redress that is warranted by the circumstance.
Even if the laws conform to the international standard of justice, the State may still
be held liable if it does not make reasonable efforts to prevent injury to the alien or, having
done so unsuccessfully, fails to repair such injury.
Nevertheless, responsibility does not immediately attach to the State upon a
showing of a failure to prevent or redress an injury to aliens. Distinction must be made
between direct and indirect state responsibility.
The rule is that where the international delinquency was committed by superior
government officials or organs, like the Chief of State or the National Legislature, liability
will attach immediately as their acts may not be effectively prevented or reversed under
the Constitution and laws of the State.
However, when the offense is committed by inferior government officials, or more
so, by private individuals, the State will be held liable only if, by reason of its indifference
in preventing or punishing it, it can be considered to have connived in effect in its
commission.
As a consequence of independence, territorial supremacy and equality, a state
enjoys immunity from the exercise of jurisdiction (legislative, executive or judicial) by
another state, unless it has given consent, waived its immunity, or voluntarily submitted to
the jurisdiction of the court concerned. Neither may its public property be attached or taxed,
nor its public vessels be boarded, arrested or sued. This is based on the principle of par in
parem non habet imperium. The state’s immunity extends to the Head of State who is the
personification of the state [See Mighell vs. Sultan ofJohore, 1 QB 149, where the Sultan,
who was certified by the British Minister of the Crown as having the status of a head of
state, was held to be immune from the jurisdiction of English courts].
a) Restrictive application of the doctrine. This immunity, however, is recognized
only with respect to sovereign or public acts of the state, and cannot be invoked with respect
to private or proprietary acts. [See U.S. vs. Ruiz, 136 SCRA 487, where the Supreme Court
classified contracts entered into by the state into those in jure imperii and those in jure
gestionis. See also US vs. Guinto, 182 SCRA 644, where the contract involved a concession
for a barber shop facility in the naval base, and was considered a contract in jus gestionis.]
Neither may this immunity be invoked when the foreign state sues in the courts of another
state, for then it is deemed to have submitted itself to the ordinary incidents of procedure
and thus, a counterclaim may be validly set up against it.

b) On labor contracts, see US vs. Rodrigo, 182 SCRA 644 (cook in restaurant at
USAF recreation center operated for profit); and JUSMAG Phil, vs. NLRC, 239 SCRA 224,
where it was held that when JUSMAG hired private respondent it was performing
governmental functions pursuant to the military assistance agreement of March 21, 1947.

c) Immunity extends to diplomatic personnel to the United Nations its organs and
specialized agencies, and to international organizations. See: Lasco vs. UN Revolving Fund
for Natural Resources Exploration, 241 SCRA 681; World Health Organization vs. Aquino,
48 SCRA 242; International Catholic Migration vs. Calleja, 190 SCRA 130; Callado vs.
International Rice Research Institute, 244 SCRA 210; and SEAFDEC vs. NLRC 241 SCRA
580.

d) Waiver of immunity. The state is deemed to have waived its immunity when it
gives consent at the time the proceeding is instituted; when it takes steps relating to the
merits of the case before invoking immunity; when, by treaty or contract, it had previously
given consent; or when, by law or regulation in force at the time the complaint arose, it has
indicated that it will consent to the institution of the proceedings. Thus, in Republic of the
Philippines vs. Ferdinand Marcos, supra., the U.S. Court of Appeals rejected the Marcos
defense of immunity of the head of state, because this immunity is waivable, and the same
had been waived by the Philippine Government.

Criminal Liability of Natural Persons