PUBLIC INTERNATIONAL LAW

International law is that branch of public law which regulates the relations
of States and of other entities which have been granted international personality
(e.g. the UN). Modern international law after World War II, however, now deals
not only with the relations between states, but also their relations with persons,
natural or juridical (e.g. intl human rights law).
Distinction between a subject and object of international law
A subject is an entity that has rights and responsibilities under international
law; it can be a proper party in transactions involving the application of
international law among members of the international community. Subjects
include: states, colonies, the Holy See, the United Nations.
An object is a person or thing in respect of which rights are held and
obligations assumed by the subject; it is not directly governed by the rules of
international law; its rights are received, and its responsibilities imposed,
indirectly through the instrumentality of an international agency. Traditionally,
individuals have been considered merely as objects, not subjects, of international
law; however, modern IL now grants, primarily through treaties, a certain degree
of international personality to individuals (e.g. individuals are granted by treaty
the power to sue before the European Court of Human Rights).
Divisions of International Law
1) LAWS OF PEACE- Governs the normal relations of States
2) LAWS OF WAR - Rules during periods of hostility
3)
LAWS OF NEUTRALITY- rules governing States not involved in the
hostilities
Relation to Municipal Law
2 VIEWS:
1) DOCTINE OF INCORPORATION - rules of international law form part of the
law of the land and no further legislative action is needed to make such rules
applicable in the domestic sphere.
a) Such is recognized in art. 2, sec. 2, as the Philippines "adopts the
generally accepted principles of international law as part of the law
of the land."
b) Rules of international law are given equal standing with, but are not
superior to, national legislative enactments. Thus, the Constitution,
as the highest law of the land, may invalidate a treaty in conflict
with it.
[Secretary of Justice v. Hon. Lantion and Mark Jimenez, Jan.
18, 2000]
2) DOCTRINE OF TRANSFORMATION - the generally accepted rules of int'l
law are not per se binding upon the State but must first be embodied in
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.
2 THEORIES:
1) DUALISM domestic and international law are independent of each other, as
they regulate different subject matter. IL regulates the relations of sovereign
states, while municipal law regulates the internal affairs of a state. Thus, no
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conflict can ever arise between international and municipal law, because the
two systems are mutually exclusive. If IL is applied within a state, it is only
because it has been expressly incorporated by municipal law.
The
Philippines is a dualist state.
2) MONISM Monists have a unitary concept of law and see all law including
both international and municipal law as an integral part of the same system.
If conflict exists between international law and municipal law, international law
must prevail. Germany is a monist state.
Sources of International Law
Article 38 of the Statute of the International Court of Justice (ICJ) is
considered the authoritative enumeration of the sources of International Law.
A) PRIMARY
1. TREATY / INTERNATIONAL CONVENTIONS - Generally, a treaty only binds
the parties. However, treaties may be considered a direct source of Int'l law
when concluded by a sizable no. of States, and is reflective of the will of the
family of nations (in which case, a treaty is evidence of custom).
2. CUSTOM - Practices which, through persistent usage, have grown to be
accepted by States as legally binding. 2 Elements:
1. STATE PRACTICE a consistent and uniform external conduct of
States. Generally, both what states say and what they do are
considered state practice.
2. OPINIO JURIS - State practice must be accompanied with the
conviction that the State is legally obligated to do so by int'l law, and
not through mere courtesy or comity, or because of humanitarian
considerations.
Q: What is 'INSTANT' CUSTOM?
A: Customary law may emerge even within a relatively short passage of time, if
within that period, State Practice has been uniform and extensive. (ex. Law on
the Continental Shelf) Thus, int'l law does NOT always require a long period of
time to elapse before conduct is considered customary.
3. GENERAL PRINCIPLES OF LAW - Principles common to most national
systems of law; rules based on natural justice. ex. good faith, estoppel,
exhaustion of local remedies.
B) SECONDARY
1. JUDICIAL DECISIONS - a subsidiary means for the determination of rules of
law (e.g., determining what rules of customary IL exist) that is acceptable so
long as they correctly interpret and apply int'l law.
Note: Even decisions of national courts, when applying int'l law, are
acceptable. ex. Principles on diplomatic immunity have been developed by
judgments of national courts.
2. TEACHINGS OF PUBLICISTS -- The word 'Publicist' means 'learned writer.'
Learned writings, like judicial decisions, can be evidence of customary law,
and can also play a subsidiary role in developing new rules of law.
2
Requisites:
1. Fair and impartial representation of law.
2. By an acknowledged authority in the field.
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State
A ) ELEMENTS OF A STATE:
A State should possess the following qualifications (Art. 1, Montevideo
Convention):
1)
2)
3)
4)

a permanent population;
a defined territory;
government;
capacity to enter into relations with other States.

B) DISTINCTIONS BETWEEN SOVEREIGNTY AND INDEPENDENCE

A. SOVEREIGNTY is the broader term. It refers to the supreme and
uncontrollable power inherent in the State by which such State is governed. It
has 2 aspects:
1. INTERNAL- freedom of the State to manage its own affairs.
2. EXTERNAL- freedom of the State to direct its foreign affairs.
B. INDEPENDENCE is synonymous with external sovereignty. It is
defined as the power of a State to manage its external affairs without direction or
interference from another State.
C) PRINCIPLES OF STATE SUCCESSION
A. STATE SUCCESSION is the substitution of one State by another, the
latter taking over the rights and some of the obligations of the former.
B. 2 types of State Succession:
1. UNIVERSAL- takes place when a State is completely annexed by
another, or is dismembered or dissolved, or is created as a result of
merger of 2 or more States.
2. PARTIAL - takes place when a portion of the territory of a State
loses part of its sovereignty by joining a confederation or becoming
a protectorate or suzerainty.
C. Effects of State Succession
1. The allegiance of the inhabitants of the predecessor State is
transferred to the successor State.
2. The political laws of the predecessor State are automatically
abrogated but the non-political laws are deemed continued
unless expressly repealed or contrary to the institutions of the
new sovereign.
3. The public property of the successor State is acquired by the
successor State but not the tort liability of the former.
4. Treaties entered into by the predecessor State are not
considered binding on the successor State except those dealing
with local rights and duties such as servitudes and boundaries.
D) SUCCESSION OF GOVERNMENT
1. In succession of government, the integrity of the original State is not
affected as what takes place is only a change in one of its elements,
the government.
2. Effects of a change in government:
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a. If effected by peaceful means, the new government inherits all

rights and obligations of the old government.
b. If effected by violence, the new government inherits all the rights
of the old government. However, the new government may
reject the obligations of the old government if they are of a
political complexion. If the obligations are the consequence of
the routinary act of administration of the old government, they
should be respected.
E) TERRITORY
1. Methods used in defining the territorial sea
a. Normal baseline method
Under this method, the territorial sea is drawn from the lowwater mark of the coast to the breadth claimed, following its
sinuosities and curvatures but excluding the internal waters
in bays and gulfs.
b. Straight baseline method
Straight lines are made to connect appropriate points on the
coast without departing radically from its general direction.
The waters inside the lines are considered internal.
2. Some modes of acquisition:
a. Cession
It is a derivative mode of acquisition by which territory
belonging to one state is transferred to the sovereignty of
another state in accordance with an agreement between
them.
b. Subjugation
It is a derivative mode of acquisition by which the territory of
one state is conquered in the course of war and thereafter
annexed and placed under sovereignty of the conquering
state.
c. Prescription
It is a derivative mode of acquisition by which territory
belonging to one state is transferred to the sovereignty of
another state by reason of the adverse and uninterrupted
possession thereof by the latter for a sufficiently long period
of time.
F) RIGHT OF LEGATION
a. It is the right of a state to maintain diplomatic relations with other states.
b. Types:
1. Active- right to send diplomatic representatives
2. Passive- right to receive diplomatic representatives
Treaties
1) DEFINITION ( Art. 2, Vienna Convention on the Law of Treaties)
A TREATY is:
2)
3)
4)
5)

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1) an international agreement
concluded between States
in written form
governed by international law
embodied in a single instrument or in 2 or more related
instruments.
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Q: If not in writing, is it still considered a treaty?

A: Yes. Oral agreements between States are recognized as treaties under
customary international law (but are extremely rare nowadays).
2) DISTINGUISHED FROM EXECUTIVE AGREEMENTS
A. Subject matter of Treaties

[Code: PCI]

1. Political Issues
2. Changes in National Policy
3. Involve international arrangements of a permanent character
B. Subject Matter of Executive Agreements [Code: TAAI ]
1. Have Transitory effectivity
2. Adjustment of details carrying out well-established national policies
and traditions
3. Arrangements of temporary nature
4. Implementation of treaties, statutes, well-established policies
C. Need for ratification by the Senate
1. TREATIES AND INT'L AGREEMENTS -- While the Constitution vests
the power to NEGOTIATE treaties with the President, such must be
RATIFIED by the 2/3 of the Senate to become valid and effective
(Art.7, Sec 21)
2. EXECUTIVE AGREEMENTS do not need to be ratified by the Senate
3) PRINCIPAL RULES OF INTERNATIONAL LAW IN CONNECTION WITH
TREATIES
A. PACTA SUNT SERVANDA - Every treaty in force is binding upon the parties
and must be performed by them in good faith.
- this applies despite hardships on the contracting State such as conflicts
between the treaty and its Constitution.
B. REBUC SIC STANTIBUS - A party is not bound to perform a treaty if there
has been a fundamental change of circumstances since the treaty was
concluded.
1) it has been described as the exception to the rule of pacta sunt servanda.
2) justifies the non-performance of a treaty obligation if the subsequent
condition in relation to which the parties contracted has changed so
materially and unexpectedly as to create a situation in which the
exaction of performance would be unreasonable.
3) Rebus sic stantibus may not be invoked as a ground for terminating or
withdrawing from a treaty:
a. if the treaty establishes a boundary
b. 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.
C. JUS COGENS - a rule which has the status of a peremptory (i.e., absolute,
uncompromising) norm of international law.

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Elements:
1. a norm accepted and recognized
2. by the int'l community of States as a whole
3. as a norm from which no derogation is permitted.
4. It can only be modified by a subsequent norm having the same character.
If a treaty, at the time of its conclusion, conflicts with jus cogens, it is void.
Examples:
(1) prohibition against the unlawful use of force;
(2) prohibition against piracy, genocide, and slavery
State Responsibility
(1) it is the doctrine which holds a state responsible for any injury
sustained by
an alien within its jurisdiction. Because of an
international wrong imputable to it, the state will be responsible if it is
shown that it participated in the act or omission complained of or was
remiss in redressing the resultant wrong.
(2) Types of State responsibility
a. Direct responsibility-attaches to the state if the wrongful
act/omission was effected through any of its superior organs
acting on its behalf
b. Indirect responsibility
(3) Conditions for the enforcement of the doctrine of state responsibility
a. The injured alien must first exhaust all local remedies
b. He must be represented in the int'l Claim for damages by his own
state (ordinarily, individuals have no standing to bring a claim
before international law).
Settlement of Disputes
1) AMICABLE METHODS
A. NEGOTIATION- discussion by the parties of their respective
claims and counterclaims with a view to the just and orderly
adjustment.
B. INQUIRY - an investigation of the points in question with the
view that this will contribute to the solution of the problem
C. GOOD OFFICES - method by which a 3rd party attempts to
bring the disputing states together in order that they may be able to
discuss the issues in contention.
D. MEDIATION- 3rd party actively participates in the discussion in
order to reconcile the conflicting claims. Suggestions of mediator
are merely persuasive
E. CONCILIATION- 3rd party also actively participates in order to
settle the conflict. Suggestions of conciliator are also not binding.
As distinguished from mediation, the services of the conciliator
were solicited by the parties in dispute.
F. ARBITRATION- process by which the solution of a dispute is
entrusted to an impartial tribunal usually created by the parties
themselves under a charter known as the compromis. The
proceedings are essentially judicial and the award is, by previous
agreement, binding on the parties.

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2) HOSTILE/NON-AMICABLE METHODS
A. RETORSION - is a lawful act which is designed to injure the
wrongdoing State.
Ex.: cutting off economic aid (this is lawful because there is no
legal obligation to provide economic aid).
B. REPRISAL - an act which would normally be illegal but which is
rendered legal by a prior illegal act committed by the State
against which the reprisal is directed; it is a form of retaliation
against the prior illegal act.
Reprisals may be used only when other means of redress (e.g.
protests and warnings) have failed.
SPECIAL TOPICS
EXTRADITION
1) EXTRADITION is the surrender of a person by one state to another state
where he is wanted for prosecution or, if already convicted, for punishment.
2) Basis of Extradition: a treaty. Outside of treaty, there is no rule in
international law compelling a State to extradite anyone. Such may be done,
however, as a gesture of comity.
3) Principles:
a) Principle of Speciality - a fugitive who is extradited may be tried only for
the crime specified in the request for extradition ARE included in the list of
extraditable offenses in the treaty.
b) Under the Political offense exception, most extradition treaties provide
that political and religious offenders are not subject to extradition.
Q: The Philippines entered into an extradition treaty with another country
which provided that it would apply crimes committed before its effectivity.
The country asked the Philippines to extradite X for a crime committed
before the effectivity of the treaty. X argued the extradition would violate
the prohibition against ex post facto laws. Is he right?
A: No. The constitutional prohibition applies to penal laws only. The extradition
treaty is not a penal law. (Wright v. CA, 235 SCRA 341)

SECRETARY OF JUSTICE V. HON. LANTION AND MARK JIMENEZ (G.R. # 139465, Oct.
17, 2000, overturning the Courts previous decision in 322 SCRA 160 dated Jan.
18, 2000)
By virtue of an extradition treaty between the US and the Philippines, the
US requested for the extradition of Mark Jimenez for violations of US tax and
election laws. Pending evaluation of the extradition documents by the Philippine
government, Jimenez requested for copies of the US' extradition request. The
Secetary of Justice denied that request.
ISSUE: During the evaluation stage of the extradition proceedings, is private
respondent entitled to the two basic due process rights of notice and hearing?
HELD: Private respondent is bereft of the right to notice and hearing during the
evaluation stage of the extradition process. Extradition is a proceeding sui
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generis. It is not a criminal proceeding which will call into operation all the rights
of an accused guaranteed by the Bill of Rights. The process of extradition does
not involve the determination of the guilt or innocence of an accused. His guilt or
innocence will be adjudged in the court of the state where he will be extradited.
Dissent (original decision): Under the extradition treaty, the prospective
extraditee may be provisionally arrested pending the submission of the request.
Because of this possible consequence, the evaluation process is akin to an
administrative agency conducting an investigative proceeding, and partakes of
the nature of a criminal investigation. Thus, the basic due process rights of
notice and hearing are indispensable.
Assuming that the extradition treaty does not allow for such rights, the
Constitutional right to procedural due process must override treaty obligations.
When there is a conflict between international law obligations and the
Constitution, the Constitution must prevail.
UNITED NATIONS ORGANS
1. GENERAL ASSEMBLY
Composition: All members of the UN (as of 1996: 185 member States)
Function: The GA may discuss any question or matter within the scope of
the Charter or relating to the powers and functions of any other organ. It is also
vested with jurisdiction over matters concerning internal machinery ands
operations of the UN.
2. SECURITY COUNCIL
Composition: 15 members:
a) 5 Permanent Members (China, France, UK, US, Russia)
b) 10 non-permanent: elected for 2 year terms by the
General Assembly.
Function: the maintenance of international peace and security.
Q: What is the "double veto"?
A: In all non-procedural matters, each permanent member is given a 'veto' - a
Security Council decision is ineffective if even one permanent member votes
against it. The veto does not ordinarily apply to Procedural matters. However, a
permanent member may exercise a 'double veto' when it vetoes any attempt to
treat a question as procedural, and then proceed to veto any draft resolution
dealing with that question.
3. SECRETARIAT - CHIEF ADMINISTRATIVE ORGAN OF THE UN
4. ECONOMIC AND SOCIAL COUNCIL - organ charged with promoting social
progress and better standards of life in larger freedom
5. TRUSTEESHIP COUNCIL - organ charged with administration of Int'l Trusteeship
System.
6. INTERNATIONAL COURT OF JUSTICE - judicial organ of the UN.
USE OF FORCE
Under Article 2(4) of the UN Charter, all member States are bound to
refrain from the threat or use of force against the territorial integrity or
political independence of a State.
Recognized exceptions:
1) self-defense
2) military action taken or authorized by the UN or competent Regional
organizations (such as NATO).
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CALVO CLAUSE
A CALVO CLAUSE is a provision inserted in contracts, in which the
foreigner agrees in advance not to seek the diplomatic protection of his national
State.
In general, International Courts have disregarded such clauses, as the
right to diplomatic protection is a right which belongs to a State, and waiver from
an individual does not bind his State.
STATE IMMUNITY (JURE IMPERII and JURE GESTIONIS)
Originally, under customary international law the doctrine of absolute state
immunity applied, covering all areas of State activity and recognizing only very
narrow exceptions.
Nowadays, the rule is to adopt a doctrine of qualified immunity -- that
is, immunity is granted to foreign States only in respect of their governmental
acts (acts jure imperii), not in respect of their commercial acts (acts jure
gestionis).
DIPLOMATIC IMMUNITY
Diplomatic Immunity is a principle of customary international law that
grants immunity to diplomatic representatives, in order to uphold their dignity as
representatives of their respective states and to allow them free and unhampered
exercise of their functions. In the Philippines, immunity is claimed by request of
the foreign state for endorsement by the Department of Foreign Affairs. The
determination by the executive department is considered a political question that
is conclusive upon Philippine Courts.
INTERNATIONAL CONTRACTS
Usually, agreements between States and foreign corporations contain
stipulations as to which national legal system governs the contract. Occasionally,
however, in case of powerful multinational companies, such contracts are placed
not under any single system of municipal law, but under international law, general
principles of law, or the provisions of the contract itself.
The reason for concluding these so-called internationalized contracts is to
establish a balance between the parties and prevent the State party from evading
its obligations under the contract by changing its own internal law. This is mostly
secured by an arbitration clause referring disputes under the agreement to an
international body.
THE INTERNATIONAL COURT OF JUSTICE
1) "Optional Clause" of the ICJ:
As a rule, the ICJ can operate only on the basis of the consent of States to
its jurisdiction. Such may take the form of a special agreement between States
to submit an existing dispute before the Court (i.e. compromis).
However, under the 'optional clause' (art. 36(2), ICJ Statute), a State
may declare in advance that they recognize the jurisdiction of the Court as
compulsory ipso facto and without need of special agreement, in relation to any
other State accepting the same obligation, in all legal disputes concerning:
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a. the interpretation of a treaty;

b. any question of international law
c. existence of any fact which, if established, would constitute breach of
international obligation; and
d. nature or extent of reparation to be made for breach of international
obligation.
2) STARE DECISIS does not apply to the ICJ. Under the statute of the Court,
previous decisions have no binding force; in practice, however, the Court always
takes past decisions into account.
Q: What does it mean to decide a case EX AEQUO ET BONO?
A: It is to rule in justice and fairness -- equity overrides all other rules of law. The
ICJ has no power to decide a case ex aequo et bono, unless all parties agree
thereto [art. 38(2), ICJ Statute].
Q: Who has standing before the ICJ?
A: Only States may be parties in contentious proceedings before the ICJ (art 34,
ICJ Statute).

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