Академический Документы
Профессиональный Документы
Культура Документы
Definition:
- Body of rules and principles of action
- Which are binding upon civilized States in their relations with one another or upon the members
of the international community in their mutual relations
- Mutual relations
Other relations:
1) Between international organizations and States
2) Among international organizations themselves
3) Between States or international organizations and natural or juridical persons
1) Direct Consent
- absence of any form of international legislature, competent to enact law after the manner of
the legislatures of democratic States
- upon their individual acceptance of its principles and rules
2) Implied Consent a fiction to account for the acceptance of the great body of principles and
specific rules that had come from the body of customary law
3) Mutuality of Interest
- International law is subjective law
Page 1 of 28
- Binding force depended upon the mutuality of interest, which could only be maintained by
altering from time to time such rules as it might be no longer to the interest of the parties to
observe
4) Necessity
- The fact that nations have common interests constitutes the actual community of Statesand at
the same time imperatively demands a rule of law
- International law may be said to be based upon the very necessity for its existence
Yogyakarta Principles
- Human rights in relation to sexual orientation and gender identity
- Not binding on the Philippines
- Considered as soft law
Page 2 of 28
RELATIONSHIP BETWEEN INTERNATIONAL LAW AND NATIONAL LAW
Incorporation or Applicability of International Law
adopts in 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 of with all nations
No treaty or international agreement shall be valid and effective unless concurred by at least two-thirds
of all the Members of the Senate
Note: not required for foreign loan agreements (requires the prior concurrence of the Monetary Board
and subject to such limitations as may be provided by law)
Supreme Court shall have the power to review the constitutionality or validity of any treaty, international
or executive agreement.
The Constitution has created a Commission on Human Rights to monitor the Philippine Governments
compliance with international treaty on human rights
foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty
duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes
cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other
Contracting State
Definition Examples
1) International Whether general or particular, Vienna Convention on the Law
Conventions establishing rules expressly of Treaties
recognized by the contesting
States
2) International Custom Evidence of general practice Prohibition against genocide,
accepted as law torture, slavery, crimes against
humanity
3) General Principles of Recognized by civilized nations Pacta sunt servanda
Law Res judicata
Due process
Page 3 of 28
4) Judicial Decisions and Subsidiary means for Decisions of the International
teachings of the most determination of the rules of law Court of Justice and municipal
highly qualified tribunals dealing with matters of
publicists of the various International Law
nations
Nos. 1 to 3 are principal sources of International Law
Ex Aequo et Bono
- by what is fair and good or from equity and conscience
- refers to the power of arbitrators to dispense with consideration of the law but consider solely
what they consider to be fair and equitable in the case at hand
- Application of the sources of international law, shall not prejudice the power of the Court to
decide a case Ex Aequo et Bono if the parties agree thereto
Non Liquet
- it is not clear
- Refers to a situation where there is no applicable law
- The parties have not agreed to have their case decided ex aequo et bono
Norm
- Refers to a model or standard accepted by society or other large group
- Which society judges something
- Shared expectations of about what behavior is considered proper
TREATY
- Defined by Article 2 of the 1969 Vienna Convention on Law of Treaties
- International agreement concluded between States
- In written form
- Governed by the International law
- Whether embodied in a single instrument or in two or more related instruments and whatever its
particular designation
Requisites:
1) Between States
2) In written form shall not affect the legal force of agreements that are not written in form (when
what was agreed upon is not a treaty) e.g. phone conversation between Denmark and Finland by
their respective prime ministers
3) Governed by International Law
Law-Making Treaties
- Multilateral agreements that create legal obligations
- Observance of which does not dissolve the treaty obligation
- Create general norms for the future conduct of parties in terms of legal propositions
- The obligations are basically the same for all parties
Contract Treaties
- Bilateral or multilateral agreements
- For the mutual interchange of benefits between the parties
- Create reciprocal or concessionary obligations between and towards particular parties only and
not towards the whole international community
Page 4 of 28
Some Treaties to which the Philippines is party thereto
Page 5 of 28
3) Prohibition of slavery, slave trade and piracy
4) Prohibition of wars of aggression and territorial aggrandizement
5) Prohibition of apartheid racial segregation or discrimination
First Group Encompasses the maxims of International Law, which protect the foundations of
law, peace and humanity in the international order and which at present are
considered by nations as the minimum standard for their mutual relations
Second Group Covers rules of peaceful cooperation in the sphere of International Law, which
protects fundamental common interests
Third Group Regards the protection of humanity, especially of the most essential human rights
Treaty-making Process
1) Negotiation
2) Adoption to the text
3) Authentication of the text
4) Conclusion signature plus ratification, consent or acceptance by the State is required
For the purpose of performing all acts relating to the conclusion of a treaty:
a) Heads of State
b) Heads of Government and Ministers for Foreign Affairs
For the purpose of adopting the text of a treaty between the accrediting State and the State to
which they are accredited
c) Heads of diplomatic Missions
For the purpose of adopting the text of a treaty in that conference, organization or organ
d) Representatives accredited by the States to an international conference or to an international
organization or one of its organs
2) It appears from the practice of the States concerned or from other circumstances that their
intention was to consider that person as representing the State for such purpose and to dispense
will full powers
Other Definitions:
Page 6 of 28
1) Protocol de Cloture instrument which records the winding up of the proceedings of a diplomatic
conference and usually includes a reproduction of the texts of treaties, conventions,
recommendations and other acts agreed upon and signed by the plenipotentiaries attending the
conference and not a treaty itself; summary of the proceedings
2) Alternat- principle which provides that a States own name will be listed ahead of the other
signatory or signatories in its own official copy of the treaty
3) Accession process by which a State expresses its consent to be bound by an already existing
treaty
4) Reservation unilateral Statement, however phrased or named, made by a State, when signing,
ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify
the legal effect of certain provisions of the treaty in their application to that State
General Rule: State may formulate a reservation when signing, ratifying, approving or acceding to a
treaty
Exception:
1) Reservation is prohibited by the treaty
2) Treaty provides that only specified reservations, which do not include the reservation in question,
may be made
3) Reservation is incompatible with the object and purpose of the treaty
The Philippine Supreme Court should sustain the validity of the treaty abrogation by the President alone.
The Constitution is silent as to the Senates participation in the abrogation of a treaty. In light of the
absence of any constitutional provision governing the termination of a treaty, and the fact that different
termination procedures may be appropriate for different treaties, the case must surely be controlled by
political standards, even more so because it involves the conduct of foreign relations
Rebus sic stantibus- it is a fundamental change of circumstances which has occurred with regard
to those existing at the time of the conclusion of a treaty, and which was not foreseen by the
parties)
General Rule: not a valid ground for terminating or withdrawing from treaty unless:
a) existence of those circumstances constituted an essential basis of the consent off the parties
to be bound by the treaty
b) the effect of the change is radically to transform the extent of obligations still to be performed
under the treaty
Requisites:
i. fundamental change in the circumstances
ii. change was not foreseen by the parties
iii. existence of those circumstances constituted an essential basis of consent of the parties to
be bound by the treaty
Page 7 of 28
iv. change in the circumstances must radically transform the extent of obligations still to be
performed under the treaty
Travaux Preparatories
- preparatory work of a treaty that contains its legislative history
Executive Agreements
- international agreements embodying adjustments of details of carrying out well-established
national policies and traditions and those involving arrangement of a more or less temporary
nature
- cover wide array of subjects that have various scopes and purposes
- involve arrangements on the implementation of existing policies, rules, laws or agreements
- Concluded to:
1) Adjust the details of a treaty
2) Pursuant to or upon confirmation by an act of the legislature
3) Exercise of the Presidents independent powers under the Constitution
- The raison detre hinges on prior constitutional or legislative authorizations
Elements:
1) Duration or Long State Practice
2) Consistency of the State practice or the widespread repetition by States of similar international
acts over time
3) Generality of the State Practice or that the acts are taken by a significant number of States and
not rejected by a significant number of States
Page 8 of 28
4) Opinio Juis Sive Necessitatis or the requirement that the acts must occur out of a sense of
obligation
Two Approaches:
a) Objectivist approach- considers customary norms of International Law as having universal
application and therefore binding on all States
b) Participatory Approach- considers that the rules of law binding upon States emanate from their
own free will as expressed in conventions or by usages generally accepted as expressing principles
of law and established in order to regulate the relations between these co-existing independent
communities or with a view to the achievement of common aims; restrictions upon the
independence of States cannot therefore be presumed
EX AEQUO ET BONO
- According to what is equitable and good
- Power given to the court or an arbitral panel to resolve dispute based only on equity and
conscience, even disregarding the law
- International Court may decide a dispute based on such principle
Theoretical Approaches
1) Monism
- supposes that the International Law and national law are simply two components of a single body
of knowledge called law
- law is seen as a single entity of which national and international version are merely particular
manifestations
2) Dualism
- Considers International Law and national law as independent of each other
- Both systems are regarded as mutually exclusive and independent
- Exist side by side within different spheres of action the international plane and the domestic
plane
Doctrine of Incorporation
Page 9 of 28
Rules of international law form part of the law of the land no further legislative action is needed
to make such rules applicable in the domestic sphere
In case of conflict, municipal law shall be upheld
Section 2, Article II of the 1987 Philippine Constitution
Restrictive (only generally accepted principles of International Law) and automatic (becomes part
of the law of the land)
Transformation Theory
- The rules of International Law do not become part of domestic or national law until they have
been expressly adopted by the State
- Requires deliberate act on the part of the State concerned
- To be determined by its own national laws
2 Types:
1) Hard Transformation Theory- holds that only legislation can transform International Law into
domestic law
2) Soft Transformation Theory- hold that either a judicial or legislative act of a State can transform
International Law to domestic law
Charming Betsy Canon- an act of the Congress ought never to be construed to violate the law of nations
if any other possible construction remains
SUBJECTS
SUBJECTS OBJECTS
One to whom the rules of International law are Person or entity for which the subjects of
addressed International Law hold rights and
obligations in the international order
Traditional dichotomy, only States are considered Things in respect to which rights are held
and duties imposed
Persons to whom the law attributes rights and duties According to Oppenheim- individuals are
granted rights by their municipal laws
According to Oppenheim- only States are subjects
According to Fenwick- individuals are the subjects but
because of practical necessity, the State becomes the
agent of the individuals
A. Individuals
Nationality Principle
- Provides that it is for each Sate to establish its own standards for conferring Nationality
Page 10 of 28
Nationality
- bond which unties a person to a given State
- constitutes membership in a particular Sate
- gives him a claim to the protection of the Sate and which subjects him to the obligations created
by laws of the State
- interchanged with citizenship- possessed of the full rights and privileges of membership in a
political community
STATELESSNESS
Stateless Persons
- person who is not considered as a national by any State under the operation of its law
- has the obligation to the country he finds himself, to conform to the laws and regulations as well
as to measures taken for the maintenance of public order
Consequences of Statelessness
- A problem of identity under the law
- Results in the inability to enjoy the rights and freedoms afforded by the law
- Inability to exercise:
o The right to work
o Own property
o Access to health care
o To education
o Ability to travel, vital right to leave and return
o States right to grant diplomatic protection and to represent an individual at the
international level
Page 11 of 28
4) May not be expelled in the territory of the Contracting State unless on the grounds of national
security or public order.
Prevent Statelessness
1) A Contracting State shall grant its nationality to a person born in its territory who would otherwise
be stateless
2) Shall grant its nationality to a person, not born in the territory, who would otherwise be stateless,
if the nationality of one of his parents at the time of the persons birth was that of the State
Refugee
- A person who owing to well-founded fear of being persecuted for:
o Race
o Religion
o Nationality
o Membership of a particular social group or political opinion
- Outside the country of his nationality and is unable or is unwilling to avail himself of the
protection of that country
- Who not having a nationality and being outside the country of his former habitual residence as a
result of such events, is unable or, owing to such fear, is unwilling to return to it
B. States
- An entity that has a defined territory and permanent population, under the control of its own
government, and that engages in, or has the capacity to engage in, formal relations with other
such entities
Facts of Statehood
1) Permanent population
2) Defined territory
3) Government
General Rule: necessary to carry out the duties and able to assert itself without aid of foreign
troops
Exceptions:
a) Lack of effective government due to civil war, newly gained independence or similar
upheavals
b) Simple change in regime and even conflicting claims of governmental authority will not
disqualify an entity from statehood
c) Occupied by and enemy in times of war continues to be a State as long as allies are fighting
on its behalf against it enemy
4) Capacity to enter into relations with other States
Existence of a State
- When a community acquires not momentarily, but with a reasonable probability of permanence,
the essential characteristics of a State, namely an organized government, defined territory, and
such a degree of independence of control by any other State as to be capable of conduction its
own international relations
Page 12 of 28
- express consent or recognition by other States is necessary for the new Sate to be bound by the
said norms and obligations
Co-optation- individual and collective recognition on the part of the already existing States
Nation- body of people more or less of the same race, language, religion and historical traditions
Classification of States
1) Sovereign States
- those enjoying full membership in the international community
- exercise undivided authority over all persons and property within the borders
- independent of direct control of any other power
2) Neutralized States
- Status of permanent neutrality in all future wars was formally imposed by a group of great powers
3) Dependent States
- Practical complete control of their domestic affairs
- internal independence
- Subject to a greater or lesser degree of independence upon another State in respect of their
control over their relations with third States
4) Confederation and Unions states which are associated for certain specific purposes
1) Real union- a special form of confederation which exists when two or more severally
sovereign States have the same monarch and for international purposes act as on State
2) Federal State control of the external relations of all the member States has been
permanently surrendered to a central government so that the only State which exists for
international purposes is the State formed by the Union
3) Confederation though a central government exists and exercises certain powers and does
not control all the external relations of the member States
Concept of Association
- When two or more States of unequal power voluntarily establish durable links
a) Associate- one state delegates certain responsibilities to the other
b) Principal- while maintaining its international status as a state
Page 13 of 28
- May withstand even the most radical transformations in its constitution
State Succession
- Shift of responsibility over a territory form State to another State
- Affects the legal identity of a State and its treaty obligations
- Occurs with the secession of the States, annexation, merger and consolidation and decolonization
- Substitution of a new sovereign over the territory in question and it calls for the determination
not of the de jure character of the sovereign but of the right of the new sovereign to assert the
claims of the former sovereign in respect to the particular area of territory and the duty to meet
its obligations
Kinds of Succession
1) Universal- on State completely absorbs the international personality of another State and thereby
becomes the sole representative at law of the rights and obligations of the latter State
2) Partial- when an existing State takes over, whether by force or voluntary cession, the sovereignty
of a portion of territory formerly belonging to another State
Newly-Independent State
- A successor State the territory of which immediately before the date of the succession of States
was a dependent territory for the international relations of which the predecessor Sate was
responsible
Status of Vatican
- Officially recognized the sovereignty of Holy See in 1929
- The Lateran Treaty of 1929
- Unique and exceptional character
- Represents in a community of national States an institution organized primarily for international
objects, whose legal personality is marked by a few acres of territory and a handful of subjects
but whose worldwide interests and activities are such as to make it in a sense an International
State
- Papal Nuncio- ambassador
What is Independence
- Right to exercise to the exclusion of any other State the functions of a State
Right to Independence
- Right of State to be free from control by any other State in the management of its domestic affairs
and in the determination of its relations with other members of the international community
Page 14 of 28
Obligations ERGA OMNES
- Owed by States towards the international community
- in relation to everyone
o Prohibition of acts of aggression
o Prohibition of genocide, piracy, slavery, racial discrimination
o Obligations concerning the protection of basic human rights, self-determination and
obligations relating to the environment
Remedies in case of Breach
1) Cessation of the internationally wrongful acts
2) Performance of the obligation of reparation in the interest of the State, entity or individual which
is especially affected by breach
3) Restitution should be effect unless materially impossible
STATE RESPONSIBILITY
- every internationally wrongful act of a State entails the international responsibility of the State
Elements of Internationally wrongful act of a State:
1) attributable to the State under International Law
2) constitutes a breach of an international obligation of the State
Attribution or Imputability
- legal construct whereby an internationally unlawful conduct of a State organ acting in that
capacity is regarded as the conduct of the State itself, making that State responsible for it as an
internationally wrongful act
- must be acting on the instructions or under the direction or control of the Sate in carrying out the
conduct
Reparations:
1) Restitution
2) Compensation
3) Satisfaction
Restitutio in integrum
- Fundamental principle
- Governs the duty to make reparation for an IWA
- The reparation must, as far as possible, wipe out all the consequences of the illegal act and
reestablish the situation which would, in all probability, have existed if the act had not been
committed
STATE SOVEREIGNTY
- Independent personality of the Sate in relation with other members of the international
community
- Over certain territory: supreme, absolute, and uncontrollable power by which any independent
State is governed
Page 15 of 28
- Absolute right to govern or jus summa imperri
Absolute Sovereignty
- The jurisdiction of the nation within its own territory is necessarily exclusive and absolute
- Any restriction upon it, deriving validity from an external source, would imply a dimuniton of its
sovereignty to the extent of the restriction, ad an investment of that sovereignty to the same
extent in that power which could impose such restriction
Principle of Auto-Limitation
- The concept of sovereignty as auto-limitation is the property of a State-force due to which it has
the exclusive capacity of legal self-determination and self-restriction
- Any State may, by its implied or express consent, submit to a restriction of its sovereign rights
- A State then, if it chooses to, may refrain from the exercise of what otherwise is illimitable
competence
- There may be a curtailment of what otherwise is a power plenary in character
Intervention Non-Intervention
- Denotes almost any act of interference by - Norm which prohibits States from
on state in the affairs of another, domestic interfering into the domestic or foreign
or foreign, which violate the States affairs of another State
independence
- Imperative form or backed by the threat
of force
Grounds: -
1) Measure of self-defense by the State
2) Measure of legitimate reprisal
3) Takes place under a treaty giving such
right to the intervening State
4) For humanitarian reasons
C. International Organizations
Specialized Agencies
Page 16 of 28
- Have functions in a particular fields
- Posts, telecommunications, railways, canals, rivers, sea transport, civil aviation, meteorology,
atomic energy, finance, trade, education and culture, health and refugees
Supranationality
- Internationally organization generally regarded as one that has the power to bind its member
States by its decisions
- More governmental authority and law-making power in relation to their member States than to
traditional international organizations
- Authority of the organization to make its law directly applicable and enforceable within the
territory of the member States without further execution by the national governments
Supranational Organization
1) Decisions of these organizations are generally binding upon the members of the government
2) Has the power to enforce its decisions
3) Unilateral withdrawal is usually not possible
- States transfer a larger degree of sovereignty to them than to international organizations
United Nations
- A public organization of States
- Established by the intergovernmental cooperation after the Second World War
- Established on October 24, 1945
- Has its own juridical personality
o Capacity to contract
o Acquire and dispose movable and immovable property
o Institute legal proceedings
Page 17 of 28
International Court of Justice
Seat: Peace Place in The Hague (Netherlands)
Members: 15 members, no two of whom may be nationals of the same State
Term: 9 years and may be elected
Incumbent President: Ronny Abraham (France)
JURISDICTION OF STATES
International Jurisdiction
- Allocation of authority among States
Types of Jurisdiction:
1) Jurisdiction to prescribe
2) Jurisdiction to enforce
3) Jurisdiction to adjudicate
STATE IMMUNITY
- Doctrine of Sovereign Immunity
- A State may not be sued without its consent in the local courts of another State as a necessary
consequence of the principles of independence and equality of States
- Parem non habet imperium among equals, there can be no superior
Restrictive Theory
- The immunity of the sovereign is recognized only with regard to public acts or acts jure imperii,
but not with regard to private acts or acts jure gestionis
Suggestion
- When a State or international agency wishes to plead sovereign or diplomatic immunity in a
foreign court, it requests the Foreign Office of the State where it is sued to convey to the court
that said defendant is entitled to immunity
Page 18 of 28
1) Diplomatic Inviolability person of the diplomatic agent, his residence, and the diplomatic
premises and property may not be the subject of any kind of interference on the part of the
receiving State which is legally bound to afford him protection
2) Shall not be liable to any form of arrest or detention
3) Private residence of a diplomatic agent shall enjoy the same inviolability and protection as the
premises of the mission
4) Immunity from criminal jurisdiction of the receiving state but the immunity from jurisdiction may
be waived by the Sending State
5) Not obliged to give evidence as a witness
6) With respect to services rendered for the sending State be exempt from social security provisions
which may be in force in the receiving State
7) Exemption from dues and taxes, personal or real, national, regional or municipal
8) Exemption from all personal services, from all public service of any kind whatsoever
9) Exemption from all customs duties, taxes and related charges
10) Practice of professional or commercial activity is not for personal profit
Principle of Non-Discrimination
- Each State should ensure that its regime of environmental protection, when addressing pollution
originating within the State, does not discriminate between pollution affecting the State and
pollution affecting other States
Stockholm Declaration:
- Responsibility of States 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
- Transboundary pollution responsible for pollution within its jurisdiction if such pollution results
in demonstrable injury to another State
Liability for Transboundary pollution
o Must show material damage and causation to be entitled to legal relief
o State has duty to prevent, and may be held responsible for pollution by private parties
within its jurisdiction if such pollution results in demonstrable injury to another State
Page 19 of 28
Not nationals or permanent Privileges and Immunities
residents of receiving state
Administrative and Technical Same as diplomats except the immunity from civil and
Staff administrative jurisdiction of the receiving State shall not extend
to acts performed outside the course of their duties
Members of the families Same as above
forming part of their respective
households
Private servants of members of Exempt from dues and taxes on the emoluments they receive by
diplomatic mission reason of their employment
Service staff -Acts performed in the course of their duties
-Exempt from dues and taxes on the emoluments they receive by
reason of their employment
Consular Immunity
Consular Officers and Consular Employees.
1) Shall not be liable to arrest or detention pending trial, except in the case of a grave crime and
pursuant to the decision by the competent judicial authority (does not enjoy immunity from
criminal jurisdiction)
2) Shall not be amenable to the jurisdiction of the judicial or administrative authorities of the
receiving State in respect of acts performed in the exercise of consular functions, except in a civil
action either
a. Arising out of a contract concluded by a consular officer or a consular employee in which
he did not contract expressly or impliedly as an agent of the sending State
b. By a third party for damage arising from an accident in the receiving State caused by a
vehicle, vessel or aircraft
3) No obligation to give evidence concerning matters connected with the exercise of their functions
or to produce official correspondence and documents relating thereto
4) Entitled to decline to give evidence as expert witnesses with regard to the law of the sending State
5) Exempt from registration of aliens and residence permits, work permits, taxation, customs duties
and inspections, and from personal services and contribution
Note: waiver of Sending State of immunity is not deemed an implied waiver of immunity from the
measures of execution resulting from the judicial decision.
TREATMENT OF ALIENS
Extradition
- Removal of an accused from the requested State (Asylum State) with the object of placing him at
the disposal of foreign authorities to enable the requesting State or government to hold him in
connection with any criminal investigation directed against him or the execution of a penalty
imposed on him under the penal or criminal law of the requesting State or government
SUBJECTS TO EXTRADITION
Fugitives Only upon the authority of an extradition treaty between the requesting and
requested State
Page 20 of 28
Persons Charges or convicted of offenses that are extraditable under the terms of the
extradition treaty between the requesting State where the crime was committed,
and the requested State where the person requested to be extradited has sought
refuge
Elements of Extradition
1) Acts of sovereignty on the part of two States
2) A request by one State to another State for the delivery to it of an alleged criminal
3) The delivery of the person requested for the purposes of trial or sentence in the territory of the
requesting State
Attenant Clause
- Exception to the political crimes exception in extradition treaties
- The assassination, murder, attempt on the life of, or other willful crimes against the person of
the Head of State or Head of Government either of the State Parties or of a member of his
family shall not be regarded as a political crime
Procedure:
Request; By whom made; Requirements. Requesting State through its Foreign Diplomat
addressed to the Secretary of Foreign Affairs of the Philippines and shall be accompanied by:
1. The original or an authentic copy of either the decision or sentence imposed upon
the accused by the court of the requesting state or government; or he criminal charge
and the warrant of arrest issued by the authority of the requesting state or government
having jurisdiction of the matter or some other instruments having the equivalent legal
force.
2. A recital of the acts for which extradition is requested, with the fullest particulars as to
the name and identity of the accused, his whereabouts in the Philippines, if known, the
acts or omissions complained of, and the time and place of the commission of these
acts;
3. The text of the applicable law or a statement of the contents of said law, and the
designation or description of the offense by the law, sufficient for evaluation of the
request; and
4. Such other documents or information in support of the request.
NOTE: A request for extradition does not require that there is a pending case against the extraditee or
even an indictment. Issuance of warrant of arrest is sufficient that he was wanted for prosecution
Provisional Arrest. In case of urgency, the requesting state may, pursuant to the relevant treaty
or convention and while the same remains in force; request for provisional arrest of the accused
pending receipt of the request for extradition made in accordance with Section 4 of this Decree.
*Urgency connotes such conditions relating to the nature of the offense charged and the personality
of the prospective extradite to the inclination to flee or escape from the jurisdiction.
Page 21 of 28
1. A request for provisional arrest shall be sent to the Director of the National Bureau of
Investigation, Manila, either through the diplomatic channels or direct by post or
telegraph.
2. The Director of the National Bureau of Investigation or any official acting on his behalf
shall upon receipt of the request immediately secure a warrant for the provisional arrest
of the accused from the presiding judge of the Court of First Instance of the province or
city having jurisdiction of the place, who shall issue the warrant for the provisional
arrest of the accused. The Director of the National Bureau of Investigation through the
Secretary of Foreign Affairs shall inform the requesting of the result of its request.
3. If within a period of 20 days after the provisional arrest the Secretary of Foreign Affairs
has not received the request for extradition and the documents mentioned in Section 4
of this Decree, the accused shall be released from custody.
4. Release from provisional arrest shall not prejudice re-arrest and extradition of the
accused if a request for extradition is received subsequently in accordance with the
relevant treaty of convention.
Determination by DFA. Primary evaluation is done not by the Department of Justice but by the
Department of Foreign Affairs who shall:
1. See that the request meets the requirements of the Extradition Treaty and PD 1069.
2. Verify the completeness of the documentary requirements in support of the extradition
request.
3. Require the accompanying documents be certified by the principal diplomatic or
consular officer of the Philippines resident in the requesting State.
4. Determine that the request is not politically motivated and not a military offense.
2. The attorney so designated shall file a written petition with the proper Court of First Instance of the
province or city having jurisdiction of the place, with a prayer that the court take the request under
consideration and shall attach to the petition all related documents. The filing of the petition and the
service of the summons to the accused shall be free from the payment of docket and sheriff's fees.
3. The Court of First Instance with which the petition shall have been filed shall have and continue to
have the exclusive power to hear and decide the case, regardless of the subsequent whereabouts of
the accused, or the change or changes of his place of residence
4. Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as
practicable, summon the accused to appear and to answer the petition on the day and hour fixed in
the order. We may issue a warrant for the immediate arrest of the accused which may be served
anywhere within the Philippines if it appears to the presiding judge that the immediate arrest and
temporary detention of the accused will best serve the ends of justice.
*In the context of extradition, this means preventing the flight of the accused.
5. The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served
each upon the accused and the attorney having charge of the case.
NOTE: Prior to the issuance of the warrant, the judge must not inform or notify the potential extraditee
of the pendency of the petition, lest he latter be given the opportunity to escape and frustrate the
proceedings.
Page 22 of 28
2. The attorney having charge of the case may upon request represent the requesting
state or government throughout the proceeding. The requesting state or government
may, however, retain private counsel to represent it for particular extradition case.
3. Should the accused fail to appear on the date set for hearing, or if he is not under
detention, the court shall forthwith issue a warrant for this arrest which may be served
upon the accused anywhere in the Philippines.
NOTE: An extradition proceeding is sui generis. It is not a criminal proceeding which will call into
operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of
extradition does not involve the determination of the guilt or innocence of an accused.
Deportation
- Unilateral act of the deporting State in order to get rid of an undesired foreign national
- Purpose is achieved when such a foreign national leaves the deporting States territory
- Destination of the deportee is irrelevant to the purpose of deportation
Extradition Deportation
Surrender by force of a wanted person by the Expulsion of an unwanted or undesirable alien
requested State to the requesting State
In pursuant of a treaty between the requesting Pure unilateral act and an exercise of
State and the requested State sovereignty
For the benefit of the requesting State In the interest of the country of residence and is
ordered without a request by a third State
Page 23 of 28
- Each State Party undertakes to respect and to ensure to all individuals within its territory and
subject to its jurisdiction the rights recognized in the Covenant, without distinction to any kind,
such as race, color, sex, language, religion, political, or other opinion, national or social origin,
property, birth or other status
Right of Derogation allows State Parties to the ICCPR in time of public emergency which threatens the
life of the nation and the existence of which is officially proclaimed to take measure derogating from their
obligations under the Covenant to the extent strictly required by the exigencies of the situation
Principle of Progressive
- Recognizes that the full realization of some rights under the Covenant may be difficult to achieve
in a short period of time
- Allows each State to take steps, individually, and through international assistance and
cooperation, especially economic and technical, to the maximum of its available resources, with
a view to achieving progressively the full realization of the rights recognized in the covenant by
all appropriate means, including adoption of legislative measures
- Does not apply to the ICCPR
Genocide
- Includes any of the following acts, committed with the intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, such as:
o Killing members of the group
o Causing serious bodily or mental harm to members of the group
o Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part
o Imposing measures intended to prevent births within the group
o Forcibly transferring children of the group to another group
Page 24 of 28
*armed conflict exists whenever there is a resort to armed force between States or protracted armed
violence between governmental authorities and organized armed groups or between such groups within
the State
The Intensity of the Conflict- consider facts such as intensity of the attack, increase in armed
clashes, spread of clashes, increase in the number of government forces and mobilization and the
distribution of weapons
The Organization of Parties take into account the existence of headquarters, designated zones
of operation, and the ability to procure, transport, and distribute arms
Exceptions for political Shall not be granted for political offenses or if the executive authority of the
and military offenses requested State determines the request is politically motivated or when it
relates to a military offense that is not punishable under non-military penal
legislation
Rule of Specialty Designed to ensure that a fugitive surrendered for one offense is not tried
for other crimes, prevents a request for extradition from being used as a
subterfuge to obtain custody of a person for trial or execution of a sentence
on different charges that are not extraditable or properly documented in
the request
Baseline
- Low-water mark along the coast from which the belt of the territorial sea is measured
Page 25 of 28
- It is determined by International Law
- Normal baseline low-water line along the coast as marked on large-scale charts officially
recognized by the coastal State
Regime of Islands
- each island has its own territorial sea, contiguous zone, EEZ, and continental shelf.
Archipelagic Theory
- Considers a group of islands which are so closely interrelated and their interconnecting waters as
on geographical unit
- Allows an archipelagic State to draw straight archipelagic baselines joining the outermost points
of the outermost islands and drying reefs of the archipelago
- Waters enclosed by the archipelagic baselines shall become archipelagic waters regardless of their
depth or distance from the coast, and within these archipelagic waters, the archipelagic State may
draw closing lines for the delimitation of its internal waters
Note: UNCLOS State parties baselines laws are statutory mechanisms to delimit with precision the extent
of their maritime zones and continental shelves; it give notice to the rest of the international community
of the scope of the maritime space and submarine areas within which State parties exercise treaty-based
rights:
1) exercise of sovereignty over territorial waters
2) jurisdiction to enforce customs, fiscal, immigration and sanitation laws in the contiguous zone
3) right to exploit the living and non-living organism sin the exclusive economic zone and continental
shelf
Innocent Passage
- means navigation through the territorial sea of another State for the purpose of :
1) traversing that sea without entering internal waters or calling at a roadstead or port facility
outside the internal waters
2) proceeding to or from internal waters or a call at such roadstead or port facility and so long
as it is not prejudicial to the peace, good order or security of the coastal State
Page 26 of 28
2. The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of the
total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of
125 nautical miles.
3. The drawing of such baselines shall not depart to any appreciable extent from the general
configuration of the archipelago.
4. Such baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar
installations which are permanently above sea level have been built on them or where a low-tide
elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from
the nearest island.
5. The system of such baselines shall not be applied by an archipelagic State in such a manner as to cut
off from the high seas or the exclusive economic zone the territorial sea of another State.
Contiguous Zone
- may extend up to 24 nautical miles from the same baseline that is used in measuring the breadth
of the territorial sea
- exercise:
o prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations
within its territory or territorial sea
o punish infringement of the above laws and regulations committed within its territory or
territorial sea
Rights
A. Sovereign Rights
1) For the purpose of exploring and exploiting, conserving and managing the natural resources,
whether living or non-living, of the waters superjacent to the seabed and of the seabed and
its subsoil
2) With regard to other activities for the economic exploitation and exploration of the zone, such
as the production of energy from the water, currents and winds
B. Jurisdiction:
1) Establishment and use of artificial islands, installations and structures
2) Marine scientific research
3) The protection and preservation of the marine environment
Continental Shelf
Page 27 of 28
- The outer limits extended continental shelf on the seabed shall not exceed 350 nautical miles
from the baselines from which the breadth of the territorial sea is measured or shall not exceed
100 nautical miels from the 2,500 metre isobaths, which is line connecting the depth of 2,500
metres
Continental Margin
- Comprises the submerged prolongation of the landmass of the coastal State, and consists of the
seabed and subsoil of the shelf the slop and the rise
- Does not include the deep ocean floor with its oceanic ridges or the subsoil thereof
- Independent judicial body established by the mandate of the UNCLOS to adjudicate disputes
arising out of the interpretation and application of the Convention
- City of Hamburg, Germany
- Deals with contentious jurisdiction (disputes) and legal questions (advisory jurisdiction) submitted
to it
- 21 independent members who enjoy diplomatic immunity and privileges; proven highest
reputation of fairness and integrity and of recognized competence in the field of the law of the
sea
- Advisory Jurisdiction: to given an advisory opinion on legal questions arising within the scope of
activities of the Assembly; on legal question if it is provide by an international agreement related
to the purpose of the Convention
Page 28 of 28