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PUBLIC INTERNATIONAL LAW

1.

International law and national law,


while connected in the sense that
they are both systems of law, are
different from each other
As to source (treaties and custom
in
international
law,
and
legislation or local custom in
national law);
As regards the relations they
regulate
(relations
between
states in international law, and
relations
between
individual
persons in national law); and
Regarding
their
substance
(international law is a law
between sovereign states, while
national law is a law of the
sovereign over the individual
and operate within different
spheres.
2. States may lawfully do something
within the domestic sphere, but can
be thus held liable internationally.

Public international law governs the relationships


between and among states and also their relations
with international organizations and individual
persons. (Bernas, S.J., Introduction to Public
International Law, 2009 ed., p. 4)

CONCEPTS
1.

2.

3.

Obligations erga omnes (Lat. duties


toward all): a countrys duties that
concern issues affecting the international
community at large, not just the countrys
neighboring states. (Blacks Law Dictionary,
10th ed., p. 1244)
Jus cogens (Lat. compelling law): a
mandatory or peremptory norm of general
international law accepted and recognized
by the international community as a norm
from which no derogation is permitted.
(Blacks, p. 990) Rules of jus cogens are
rules of customary international law that
are so fundamental that they cannot be
modified by treaty.
Ex aequo et bono (Lat. according to what
is equitable and good): a decision-maker in
international law authorized to decide ex
aequo et bono is not bound by legal rules
and may instead follow equitable principles;
for example, Art. 38(2) of the Statute of the
International Court of Justice (ICJ) provides
that the Court may decide a case ex aequo
et bono if the parties agree thereto.
(Blacks, pp. 679-680)

INTERNATIONAL AND NATIONAL LAW


Q:

There are two schools of thought as regards


the question of which between international
law and national law will prevail in case of
conflict. Which of these schools of thought is
widely practiced?
(a) Monism
1.

2.

International law and national law


are two components of one single
body of knowledge called the law.
In case of conflict between the two,
international law prevails, being the
superior legal order international
law is derived from the practice of
states, while national law is merely
law implemented by a single state
within its territory.

(b) Dualism

A:

(b) Dualism.
Prevailing practice accepts dualism (e.g. Art.
27 of the Vienna Convention on the Law of
Treaties (VCLT) provides: A party may not
invoke the provisions of its internal law as
justification for its failure to perform a
treaty.).
International law, unless made part of the
domestic system, has no role in the
settlement of domestic conflicts.
Case law on dualism as applied in the Phils.:
In a situation [...] where [a] conflict is
irreconcilable and a choice has to be made
between a rule of international law and
municipal law, jurisprudence dictates that
municipal law should be upheld by the
municipal courts for the reason that such
courts are organs of municipal law and are
accordingly bound by it in all circumstances.
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. (Sec. of Justice vs. Lantion, G.R. No.
139465, Jan. 18, 2000)
CONTRA: While sovereignty has traditionally

been deemed absolute and all-encompassing


on the domestic level, it is however subject
to restrictions and limitations voluntarily
agreed to by the Philippines, expressly or
impliedly, as a member of the family of
nations. [Pacta sunt servanda] international
agreements must be performed in good faith.
A state which has contracted valid
international obligations is bound to make in
its legislations such modifications as may be
necessary to ensure the fulfillment of the
obligations. (Taada vs. Angara, May 2, 1997)
Q:
A:

The Universal Declaration of Human Rights has been


recognized by the Supreme Court as a generally
accepted principle of international law and thus part
of the law of the land in the cases of Mejoff vs.
Director of Prisons, Republic vs. Sandiganbayan, and
JBL Reyes vs. Bagatsing.
The Hague Convention and the Geneva Convention
were likewise recognized as such in Kuroda vs.
Jalandoni.
The right of innocent passage as laid down in the
Third United Nations Convention on the Law of the
Sea (UNCLOS III), being customary international law,
was held in Magallona vs. Ermita as automatically
incorporated in the corpus of Philippine law.

How does international law become part of


national law?
In dualism, there are two theories:
transformation and incorporation.
1.

2.

Transformation: for international law to


become part of national law, it must be
expressly and specifically transformed into
national law through the appropriate
constitutional machinery (e.g. act of
Congress or Parliament).
Rationale: treaties do not become
part of the law of a state unless
consented to by said state.
Incorporation: international law is adopted
in its full extent by national law, and is held
to be part of the law of the land.

In the Philippines, a distinction has to be made as


regards which theory is followed:
1.
2.

Treaties need to be transformed by means


of concurrence of the Senate pursuant to
Art. VII, Sec. 21 of the Constitution.
Customary law, treaties which have ripened
to customary law, and generally principles
of law are incorporated to the law of the
land pursuant to Art. II, Sec. 13 of the
Constitution.
The doctrine of incorporation in action:

SOURCES
Sources of international law are:
1.
2.

Recognized and accepted methods by which


legal rules come into existence; as well as
Several ways in which the precise content
of legal rules can be identified.

Article 38(1) of the ICJ Statute does not purport to


be a list of the sources of international law, but is
instead a direction to the ICJ authorizing it to
consider various materials when deciding disputes
submitted to it. These materials are as follows:
1.
2.
3.
4.
5.

International conventions
International customs
General principles of law
Judicial decisions
Teachings of publicists

It was intended that there be no order of priority


among the five sources; thus, the ICJ must study and
consider all five simultaneously.
Q:
A:

What prevails when custom and treaty law


conflict?
GR:
1. If treaty is later in time than
custom: the treaty prevails
a. Treaties represent a deliberate
and conscious act of law
creation.
b. Parties to the treaty will be
governed by its terms; nonparties will be governed by
customary law.
2. If contrary customary law develops
subsequent to the adoption of a
treaty: the treaty prevails

a.

XPN:

The treaty continues to govern


the relations between parties
even though a new practice
has developed
If the custom partakes of the nature of
jus cogens (see Arts. 53 and 64, 1969
Vienna Convention on the Law of
Treaties), the custom prevails.
1.

2.

3.

Any treaty provision which conflicts


with a rule of jus cogens is void,
regardless of whether the treaty
came first.
Any conduct contrary to the rules
of jus cogens will usually be
regarded as illegal no matter of
often
it
is
repeated
(notwithstanding Art. 53 of the
Vienna Convention on the Law of
Treaties stating that rules of jus
cogens can be changed by
subsequent norms leading to a new
fundamental rule, this being
unlikely to happen).
Unfortunately, there is no universal
agreement as to which rules of
customary law have attained this
status.

International conventions (treaties)


1.

2.
3.

Treaties determine the rights and duties of


states just as individual rights are
determined by contracts. Their binding
force comes from the voluntary decision of
sovereign states to obligate themselves to a
form of behavior.
GR:
Treaties, to be binding, require
consent.
XPN: Dispositive treaties are binding erga
omnes, regardless of whether a
state is a signatory thereto or not.
Dispositive treaties are those
whereby one state creates in
favor of another, or transfers to
another, or recognizes anothers
ownership of real rights, rights
in rem, e.g. treaties of cession
including exchange. (Arts. 53 &
64, VCLT)
Treaties are either bilateral or multilateral.
Treaties can codify existing customary law.

International customs

International customs are recognized as evidence of


general practice accepted as law.
Elements:
1.

State practice (usus): the material


element; includes, but is not limited to
actual activity, statements made in respect
to concrete situations or disputes,
statements of legal principle made in the
abstract, national legislation, and practice
of international obligations.
Requisites (a) Consistency/uniformity
(b) Generality
:
(c) Duration
As to consistency/uniformity:
1. No need for total consistency;
substantial consistency suffices.
2. The degree of consistency required
may vary according to the subject
matter of the rule disputed (e.g. when
a state is required to do an active
obligation, a greater degree of
consistency is required; a lesser degree
is enough when a passive obligation is
to be done).
As to generality:
1. For generality to subsist, not all states
need participate in giving the custom
due course.
2. However, it must be common to a
significant number of states.
3. The degree of generality required
varies with the subject matter (e.g.
when a custom accords onerous
obligations, there should be a greater
degree of generality as compared to a
custom that grants privileges to states
which only requires a lesser degree of
generality).
4. International law does not provide for
a specific number of states that must
engage in particular practice to have it
ripen into custom.
5. Persistent objector: dissenting states
who had objected to custom while
merely in the process of formation are
not bound thereby.
6. A lone objector can stop practice from
crystallizing into custom in rare
instances.
As to duration:

GR:

2.

(a) The custom must exist for a


period of time.
(b) No specific number of years is
required.
XPN:
Instant customs are spontaneous
activities of a great number of
states supporting a specific line
of action.
The Martens Clause:
Formulated by the Russian publicist Fyodor
Martens, what the clause does is to put the
laws of humanity and the dictates of
public conscience on the same level as
usus (1899 Hague Peace Convention), thus
suggesting that even without practice or
usus or at least without consistent practice
there can emerge a principle of law based
on laws of humanity and the dictates of
public conscience.
Opinio juris: the substantive element; the
belief that a certain form of behavior or
practice is obligatory, without which, such
practice would not ripen into law. The
degree of proof required for opinio juris
should vary according to the subject matter
of the disputed customary rule (e.g. a claim
that a rule has attained jus cogens status
might require very clear evidence of opinio
juris, and an alleged rule that places
burdens on all states would require clear
extrinsic evidence; on the other hand, for a
rule that grants rights or privileges to all
states, the simple fact of repeated state
activity may suffice to infer opinio juris).

General principles of law


General principles of law recognized by civilized
nations refers to principles of national law common
to the legal systems of the world. It includes under
its purview:
1.
2.

Procedural rules (e.g. notice and hearing,


res judicata)
Substantive national law concepts (e.g.
trusts, subrogation, limited liability, equity,
estoppel, acquiescence, etc.)

Examples: prescription, estoppel, res judicata,


pacta sunt servanda.

Judicial decisions
Judicial decisions refers to pronouncements of
the:
1.
2.

ICJ (usually resolves 2-3 cases per year)


Arbitral tribunals (hands and decides on the
bulk of international law cases)

3.

Other bodies (e.g. ICC, Inter-American


Court of Human Rights, European Court of
Human Rights, Yugoslav War Tribunal,
Centre for the Settlement of Investment
Disputes, etc.)

Re: Art. 59, ICJ Statute:


GR:
No stare decisis, only res judicata.
XPN: The ICJ, from time to time, does not
follow the general rule, being a court
of law.
Examples: ICJ decisions, UN resolutions, resolutions
of other international organizations.

Teachings of the most highly qualified


publicists of the various nations
1.
2.

3.

Publicists refer to experts/institutions


which write on international law, covering
both individuals and groups.
Even if the writings of publicists are of
purely evidential weight, they may be of
great importance where a rule is vague or
uncertain.
The writings of publicists can have a direct
impact on customary law for they can help
establish state practice by predicting trends
and encouraging states to follow the
predicted and desirable path.

SUBJECTS
States
A state is a community of persons, more or less
numerous, permanently occupying a fixed territory,
and possessed of a government organized for
political purposes to which the great number of
inhabitants render habitual obedience.

International organizations
International
organizations
are
institutions
constituted by international agreement between two
or more States to accomplish common goals. []
Insofar as they are autonomous and beyond the
control of any one State, they have distinct juridical
personality independent of the municipal law of the
State where they are situated. As such, they are
deemed to possess a species of international
personality of their own. (SEAFDEC-AQD vs. NLRC,
206 SCRA 283, Feb. 14, 1992)

Individuals
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DIPLOMATIC AND CONSULAR LAW

6.

TREATMENT OF ALIENS

TREATIES
1.

2.

In general international law, a treaty is a


legally binding agreement, governed by
international
law,
made
between
international legal persons recognized as
having treaty-making capacity.
In the VCLT (a particular international law),
a treaty is an international agreement
concluded between states in written form
and governed by international law, whether
embodied in a single instrument or two or
more related instruments and whatever its
particular designation.

Conflicts of jurisdiction

No state is under obligation to admit aliens. The


state prerogative to admit or not to admit aliens in
certain cases and under certain conditions flows
from its right of existence and as an attribute of
sovereignty.

Extradition; fundamental principles


Extradition is the process by which persons charged
with or convicted of crime against the law of a state
and found in a foreign state are returned by the
latter to the former for trial or punishment.
1.

As to form:
1.

2.

General international law: oral or written


(as regards oral treaties, enforceability
depends upon whether the state-parties can
establish it).
Particular international law: written only.

Applies to:

3.

Four component parts of a treaty:


1.
2.
3.
4.

Title: description of the type of the treaty.


Preamble: recites the reasons for the
treaty.
Main body: refers to the subject of the
treaty; includes provisions governing the
rights and obligations of the parties.
Final part: contains provisions or guidelines
for entry of the treaty into force, accession,
reservation, termination, etc.; may have
sub-parts depending on its scope and
coverage.

NATIONALITY AND STATELESSNESS


The nationality principle provides that the State
may exercise jurisdiction over an offender by virtue
of his being its national, without regard to where he
was at the time the offense was committed and
without respect to the nature of the offense.
1.

Vienna Convention on the Law of Treaties

1.

Does not apply to:

Doctrine of state responsibility

JURISDICTION OF STATES
1.
2.
3.
4.
5.

Territoriality principle
Nationality principle and statelessness
Protective principle
Universality principle
Passive personality principle

2.

Modern nations tilt towards the view that under


international law there is no duty to extradite in the
absence of treaty, whether bilateral or multilateral.
In other words, the so-called duty to extradite is but
an "imperfect obligation which could become
enforceable only by a contract or agreement
between states." (Dissenting Opinion, Puno, J., in
Secretary of Justice vs. Hon. Ralph C. Lantion)
An extraditee has no right to notice and hearing
during the evaluation stage of the extradition
process. (Sec. of Justice vs. Lantion; Cuevas vs.
Muoz)

STATE RESPONSIBILITY
1.

2.

Those merely charged with


an offense but have not
been brought to trial
Those tried and convicted
and have subsequently
escaped from custody
Those who have been
convicted in absentia
Persons merely suspected
of having committed an
offense but against whom
no charge has been laid
Person whose presence is
desired as a witness or for
obtaining or enforcing
civil judgment

Procedure
Request through diplomatic representative with:
1.
2.
3.
4.
5.

Decision of conviction
Criminal charge and warrant of arrest
Recital of facts
Text of applicable law designating the
offense
Pertinent papers


DFA forwards request to DOJ

DOJ files a petition for extradition with RTC

Upon receipt of a petition for extradition and its


supporting documents, the judge must study them
and make as soon as possible, a prima facie
finding whether:
1.
2.
3.

They are sufficient in form


substance,
They show compliance with
Extradition Treaty and Law
The person sought its extraditable.

and
the

At his discretion, the judge may require the


submission of further documentation or may
personally examine the affiants and witnesses of
the petitioner.

given the opportunity to escape and frustrate the


proceedings. The foregoing procedure will best
serve the ends of justice in extradition cases
(Government of the US v. Hon. Purganan and
Jimenez, 134 SCRA 438).

Distinguished from deportation


EXTRADITION
Expulsion of an alien
considered undesirable
by a local state, usually
but not necessarily to his
own State.

INTERNATIONAL HUMAN RIGHTS LAW


1.
2.
3.

Q:

A:

After the judge studies and


examines the petition and its
supporting documents, is a
prima facie case found?
NO The petition may be
dismissed at the
discretion of the
judge.
The
YE
judge
must
S
immediately issue a
warrant
for
the
arrest
of
the
extraditee who is at
the
same
time
summoned to answer
the petition and to
appear at scheduled
summary hearings.

Hearing

Appeal to CA within ten years whose decision shall


be final and executory

Decision forwarded to DFA through the DOJ

Individual placed at the disposal of the authorities


of requesting state. The costs and expenses to be
shouldered by requesting state.

Prior to the issuance of the warrant, the judge


must not inform or notify the potential extraditee
of the pendency of the petition, lest the latter be

DEPORTATION
Surrender or recovery of
a fugitive back to a local
state,
from
another
state, by virtue of a
treaty.

Universal Declaration of Human Rights


International Covenant on Civil and Political
Rights
International Covenant on Economic, Social
and Cultural Rights

INTERNATIONAL HUMANITARIAN LAW AND


NEUTRALITY
International humanitarian law (IHL) (also known as
the law of war or the law of armed conflict) is a
set of rules which seek, for humanitarian reasons, to
limit the effects of armed conflict. It protects
persons who are not or are no longer participating in
the hostilities and restricts the means and methods
of warfare.

Categories of armed conflicts


1.

2.

3.

International armed conflicts: those in


which at least two States are involved;
subject to a wide range of rules, including
those set out in the four Geneva
Conventions and Additional Protocol I.
Non-international armed conflicts: those
restricted to the territory of a single state,
involving either regular armed forces
fighting groups of armed dissidents, or
armed groups fighting each other; a more
limited range of rules apply to internal
armed conflicts and are laid down in
Common Article 3 to the four Geneva
Conventions as well as in Additional
Protocol II.
War of national liberation:

Core international obligations of states in IHL

Principles of IHL

in Geneva, Switzerland.

The law on neutrality


4.

5.
6.

7.

Categories of armed conflicts


a. International armed conflicts
b. International or non-international
armed conflict
c. War of national liberation
Core international obligations of states in
International Humanitarian Law
Principles of International Humanitarian
Law
a. Treatment of civilians
b. Prisoners of war
Law on neutrality

The Paris Convention


The Paris Convention gives persons in Contracting
States the same rights as nationals in other
Contracting States and provides for a six-month right
of priority for trademarks.
This six-month priority means that those who file
applications in a Contracting State to the Convention
may rely on that filing date as their priority date
when they file in other Contracting States, provided
that they file in the other States within six months
after the original application was filed.

LAW OF THE SEA

INTERNATIONAL ENVIRONMENTAL LAW

The UN Convention on the Law of the Sea


(UNCLOS) addresses the various areas and uses of
the worlds oceans, which cover 70 percent of the
Earths surface.

Environmental law, in general, is comprised of that


body of standards that governments establish to
manage natural resources and environmental quality.
The broad categories of natural resources and
environmental quality include such areas as air
and water pollution, forests and wildlife, hazardous
waste, agricultural practices, wetlands, and land-use
planning.

1.
2.

3.
4.
5.
6.
7.

Baselines
Archipelagic states
a. Straight archipelagic baselines
b. Archipelagic waters
c. Archipelagic sea lanes passage
Internal waters
Territorial sea
Exclusive economic zone
Continental shelf
International Tribunal for the Law of the Sea

MADRID PROTOCOL AND THE PARIS


CONVENTION FOR THE PROTECTION OF
INDUSTRIAL PROPERTY

Most of international environmental law concerns


general principles agreed upon among nations.
Although these principles sometimes oblige countries
to adopt implementing legislation, they are not
usually enforceable on their own in court. The soft
status of international environmental law is a result
of concerns over sovereignty. (Global Change
Instruction
Program,
What
is
International
Environmental Law?, p. 1)

The Madrid Protocol


The Madrid Protocol is a treaty administered by the
World Intellectual Property Organization (WIPO). It
took effect on November 2, 2003.
The Madrid Protocol and its companion treaty, the
Madrid Agreement of 1891, are the governing
instruments of the Madrid System for the
International Registration of Marks. The two treaties
create a centralized filing system which simplifies
the process of obtaining and maintaining national
trademark registrations in the member countries of
the Madrid Union.
The applying member-state
files
an
International
Application
with
the
International Bureau of WIPO

The
Bureau
then issues an
International
Registration.

Principle 21 of the Stockholm Declaration


PRINCIPLE 21
States have, in accordance with the Charter
of the United Nations and the principles of
international law, the sovereign right to
exploit their own resources pursuant to
their own environmental policies, and the
responsibility to ensure that activities
within their jurisdiction or control do not
cause damage to the environment of other
States or of areas beyond the limits of
national jurisdiction.

INTERNATIONAL ECONOMIC LAW


International economic law (also international
trade law) focuses on how countries conduct trade
in goods and services across national borders.