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SYLLABUS ON PUBLIC INTERNATIONAL LAW

ATTY. ISRAELITO P. TORREON

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. int’l human rights law). First coined by Jeremy Bentham.

Traditionally called the law of nations – encompasses the body of legal rules commonly considered
binding on and between states. It does not apply to relations between states and person, and between
persons and persons. Hugo Grotius described the law of nations as the law that has received its obligatory
force from the will of nations.

Classification of the law of nations – universal law, general law and particular law.

Contemporary International Law – regulates three international relationships:

1. Those between states and states.


2. Those between states and persons.
3. Those between persons and persons.

Robert Jennings: International law is and remains essentially a law for states and its application to
other entities being “ancillary to the primary function of regulating the relations of states and indeed stems
from it.”

INTERNATIONAL LAW AS PROCESS

International law is the unique system of law that continuously evolves from the process of identifying
normative conduct, which primarily governs relations among states, and secondarily governs other actors in
the international system, such as international organizations and individuals acting as collectivities.

International law is a process rather than a set of pre-existing immutable rules. The application of
international law means, basically, the identification of what international law is on a given point, under the
peculiar circumstances of a given time. To identify international law is to search for it, and the search must
be conducted in context.

To define international law as a process is to accommodate the universal nature of international law,
because such a definition allows for Third World countries to challenge inequitable norms predesigned by
the First and Second World countries to suit their economic advantage. In this sense, the expressed
aspirations of Third World countries are themselves part of the law-developing process.

The concept of international law as a process or as a work in progress, was a logical consequence of the
behavioralist movement. This movement is not a theory, but a method of approach to the law. Its main
contention is that the nature of law is determined by community values and policy decisions. To understand
how law operates you have to consider the needs and values of a particular society. Thus, law is not merely
a collection of legal rules, but a dynamic process evolving in society.

NEW HAVEN SCHOOL – Law is not a system of rules but a normative social system continuously built
around trends of authoritative decisions taken by authorized decision-makers, such as the various foreign
ministers and international tribunals led by the International Court of Justice. Because rules are merely
“shorthand expression of community expectations,” the rules of international law are time bound, and could
there be “inconsistent, ambiguous and full of omissions.” The New Haven School leads to the definition of
international law as “a continuing process of decision, involving choices at realizing the common value of
human dignity.”

Thus, R. HIGGINS, “International law is a continuing process of authoritative decisions. This view rejects the
notion of law merely as the impartial application of rules. International Law is the actual decision-making
process, and not just the reference to the trend of government decisions which are termed “rules.”

“I regard International Law as a special and stylized system of decision-making rather than as a purportedly
mechanistic application of “rules.” This particular perception of international law has the virtue that it makes
clear where these “rules” (or applicable norms) come from, who is purporting to apply them, and in what
factual context. It also makes it explicit that international law is a vehicle for the attainment of certain values
– which values in turn must be open to scrutiny and debate.”

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) DOCTRINE 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." (See Kuroda versus
Jalandoni, 42 OG 4282)
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.

WHAT DOES THE PHILIPPINE FOLLOW?

1.) WITH RESPECT TO TREATIES – THEY BECOME PART OF THE LAW OF THE LAND WHEN
CONCURRED IN BY THE SENATE (See Article 7 Section 21 of the 1987 Constitution);

2.) WITH RESPECT TO CUSTOMS – PHILIPPINES FOLLOWS THE DOCTRINE OF OF


INCORPORATION WHICH CONSIDERS RULES OF INTERNATIONAL LAW AS PART OF THE LAW OF
THE LAND AND NO FURTHER LEGISLATIVE ACTION IS NEEDED TO MAKE SUCH RULES
APPLICABLE IN THE DOMESTIC SPHERE

CASES: CO KIM CHAN VERSUS VALDEZ TAN KEH (SEPT. 14, 1945);
ICHONG VERSUS HERNANDEZ (MAY 31, 1957) – BUT NOTE THE SUBSEQUENT
CASE RECENTLY DECIDED BY THE SUPREME COURT.
GONZALES VERSUS HECHANOVA (OCTOBER 22, 1963).

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 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. There is oneness or unity of all law. There is no
real difference between the IL and ML because they represent two manifestations of one and the same
conception of law. If conflict exists between international law and municipal law, international law must
prevail. Germany is a monist state.

IS INTERNATIONAL LAW A TRUE LAW?

1. The Debate:

a. Reason for questioning the reality of international law: it is weak law.

1.) There is no supreme law-making authority – legislative or parliament, which enacts


international laws. Treaties are forged on an ad-hoc basis, signed and ratified by
the parties thereto but not binding to non-signatories thereof.
2.) There is no international executive with straight-forward powers to enforce
international laws. There is no standing International Police Force which can
enforce laws.
3.) There was (until perhaps in 1998 through the passage of the Rome Statute of ICC
which has jurisdiction over the most serious crimes against war criminals) no
international court with compulsory jurisdiction.

b. Reason why international law is law: because states and individuals regard it as law. Louis
Henkin declared that there prevails in the international community a “culture of compliance.” States
develop the habit of compliance and establish laws and institutions that make compliance normal
and routine. There is belief in the inherent reasonableness of the law and the common conviction
that its observance will redound to the common good.

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 (Treaty/Customs/General Principles of International Law)

1. TREATY / INTERNATIONAL CONVENTIONS - Generally understood as an international agreement,


contractual in nature between states or organization of states creating legal rights and obligations
between the parties (Oppenheim). An international instrument concluded between states in written form
and governed by international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation. (Vienna Convention On the Law Of Treaties).

While treaties are generally in written form, there are writers who hold that even an oral agreement can
be binding. However, only written agreements that are new come under the provisions of the Vienna
Convention. No particular form is required. In Qatar versus Bahrain (1994 ICJ Review), even an
exchange of notes between the heads of states was considered an international agreement.

A TREATY is: 1) an international agreement


2) concluded between States
3) in written form
4) governed by international law
5) embodied in a single instrument or in 2 or more related instruments.

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 because of the foregoing definition under the Vienna Convention).

Elements of a valid treaty:

a.) The parties must have the capacity to contract;


b.) The agents must be duly empowered to act on behalf of the states;
c.) The object must be in conformity with international law.

A treaty only binds the parties. However, treaties may be considered a direct source of Int'l law when
concluded by a sizable number of States, and is reflective of the will of the family of nations (in which
case, a treaty is evidence of custom).

Bayan versus Zamora (392 SCRA 458) _ As regards the power to enter into treaties or international
agreements, the Constitution vests the same in the President subject only to the concurrence of at least
2/3 vote of all the members of the Senate. In this light, the negotiation of the Visiting Forces Agreement
(VFA) and the subsequent ratification of the agreement are exclusive acts which pertain solely to the
President in the lawful exercise of his vast executive and diplomatic powers granted him no less than
the fundamental law itself. Into the field of negotiation, the Senate cannot intrude and Congress itself is
powerless to invade it.

DISTINGUISHED FROM EXECUTIVE AGREEMENTS (USAFFE VETERANS versus Treasurer of the


Philippines, G.R. No. L-10500, June 30, 1959)

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

STEPS IN TREATY-MAKING
1. Negotiation – done through foreign ministries. Larger multilateral treaties are negotiated
in diplomatic conferences which are run like legislative bodies. Negotiations conclude
with the signing of the document. The signatures serve as the authentication of the
document.
Authentication of the text – authentication is done by such procedure as maybe
provided for in the text or as agreed upon by the states participating in its drawing up or
failing such procedure, by the signature, signature ad referendum or initialing by the
representatives of those States of the text of the treaty or of the final act of a conference
incorporating the text.
2. Adoption : agreement by the negotiating states as to the final wording of the treaty text.
3. Consent: agreement by a state to be bound by a treaty.
a. Signature of an authorized negotiator;
b. Ratification (formal adoption) by a state’s head of government. The manner
differs from State to State. Sometimes this must be done in consultation with
the State’s Legislature;
c. Accession by a state that did not participate in a treaty’s negotiation and
drafting.
4. Entry Into Force – Treaties enter into force on the date agreed upon by the parties
where no date is indicated, the treaty enters into force once consent has been given.
a. The treaty may provide that it will come into force when a specified number of
states consent to be bound.
b. Some treaties contain provisions making the parties provisionally bound
pending ratification.
5. Reservations: a 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
Effect of making a reservation:
1.) To a bilateral treaty: a proposal to renegotiate the whole treaty.
2.) To a multilateral treaty: a reservation will not defeat the treaty so
long as it is “compatible with the object and purpose” of the treaty.
Read: Reservations To The Convention On The Prevention And Punishment of the Crime
of Genocide (Advisory Opinion of 28 May 1951).

6. Application of treaties. First rule: PACTA SUNT SERVANDA (Article 26) - 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.

Second Rule (Article 46) – A party may not invoke the provisions of its internal law as
justification for its failure to perform a treaty;

Third Rule (Article 29 – territorial scope) – Unless a different intention appears from the
treaty or is otherwise established, a treaty is binding upon each party in respect of its entire
territory.

7. Interpretation of treaties. Traditional approaches:

a.) Founding Father’s Approach;


b.) Teleological Approach;
c.) Textual approach – Vienna Convention

8. Termination of Treaties:
a.) Consent of the parties or terms of the treaty or when a definite period has arrived or when the
purpose has been achieved;
b.) Material Breach of the treaty by a party;
c.) Impossibility of performance: object based versus obligation based;
d.) Fundamental change in circumstances – rebus sic stantibus.

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 pactasuntservanda.
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.

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

2. CUSTOM - Practices which, through persistent usage, have grown to be accepted by States as legally
binding. 2 Elements:
1. STATE PRACTICE (usus) – a consistent and uniform external conduct of States. Generally,
both what states say and what they do are considered state practice. With three component
elements of duration, uniformity and generality.
Concept of persistent objector versus subsequent objector

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.

Cases: The Scotia Case / Paquete Habana: The Lola case (123 US 677).

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.

Haw Pia versus China Banking (80 Phils 604) / Lo Ching versus Archbishop of Manila (81 Phils 601) /
Mejoff versus Director of Prisons (90 Phils 71) / Leo Echegaray versus Secretary of Justice (October
12, 1998) / Marcos versus Manglapus (177 SCRA 668)/ Agustin versus Edu (February 2, 1979), La
Chemise Lacoste versus Fernandez (May 21, 1984) / Kuroda versus Jalandoni (march 26, 1949)/
Tañada versus Angara (272 SCRA 18)

B) SECONDARY SOURCES

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.

Read: Allison Gibbs versus Rodriguez (Aug. 3, 1949).


Other Sources: - Beside the above sources there are also some other sources
which court can resort for the decision of a case. As for example “Equity” and the
resolution by the UN organization. Nowhere in the statute these sources have beendeclared for the Court to
derive law but by practice the common and universal principlesof equity have been observed by the courts
while deciding cases. And also the UNorganization when passes a resolution on specific subject the Court
feels its moral dutyto decide the case in the light of such resolution if there is no express provisions
fordeciding a case.

State

A ) ELEMENTS OF A STATE:
A State should possess the following qualifications (Art. 1, Montevideo Convention):

1) a permanent population;
2) a defined territory;
3) government;
4) 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.) RECOGNITION
1. Definition;
2. Recognition is accorded to a new state, new government, belligerency and legal claim;
3. Constitutive theory of recognition versus Declaratory Theory of Recognition (M. Salimoff& Co.
versus Standard Oil of New York);
4. Forms of recognition – express or implied;
5. Minimum requirements to recognize a government:
a.) Wilson doctrine;
b.) Tobar doctrine;
c.) Webster doctrine;
d.) Jefferson doctrine;
e.) Stimson principle;
f.) Estrada Doctrine;
6. Consequences of Recognition;
7. Recognition of Belligerency.

D. CONCEPT OF STATE / CLASSES OF STATES

E) 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 predecessorState is transferred to the


successorState.
2. The political laws of the predecessorState are automatically
3. abrogated but the non-political laws are deemed continued unless expressly repealed
or contrary to the institutions of the new sovereign.
4. The public property of the successorState is acquired by the successorState but not
the tort liability of the former.
5. 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.) EFFECTS OF SUCCESSION OF STATES AS
TERRITORY/TREATIES/PROPERTY/CONTRACTS/INJURIES/NATIONALITY
a.) Merger Rule;
b.) Moving Boundaries Rule;
c.) Clean Slate Doctrine;
d.) UtiPossidetis Rule
Read: People versus Perfecto (October 4, 1922)

F) 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:
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.

G) TERRITORY
1. COMPONENTS OF TERRITORY

2. Methods used in defining the territorial sea


a. Normal baseline method
Under this method, the territorial sea is drawn from the low-water 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.

Read: RA 3046 (June 17, 1961), RA 5446 (Sept. 8, 1968)


3. 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. (READ Island of Las Palmas case).

4. Legal basis of Philippine Claim to the Spratly’s Islands? Are we claiming the entire Spratly’s
Islands?

5. Concept of Territorial Sovereignty


Read Nuclear Tests Case (new Zealand versus France (interim protection) Order
of 22 June 1973
Read The Trail Smelter Arbitration Case (Case 128 (1937)).

6.) Law of the Sea

a. Baselines

b. Archipelagic States

(1) Straight Archipelagic Baselines

(2) Archipelagic Waters

(3) Archipelagic Sea Lanes Passage

c. Internal Waters

d. TerritorialSea

e. Exclusive Economic Zone

f. Continental Shelf

(1) Extended Continental Shelf

1awphil

g. Tribunal of the Law of the Sea

H) 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
c. Consul versus Diplomat;
d. Consular privileges and immunities versus diplomatic privileges and immunities.

I.) 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).

(4) Proof requirements;


(5) Doctrine of Imputability;

(6) Standard of Care


a.) The national standard;
b.) The International Standard.

(7) EXPROPRIATION – taking of property of private persons by a state (is this valid under
international law?
- British Petroleum Case

(8) CONCEPT OF DENIAL OF JUSTICE AND ITS DIFFERING INTERPRETATIONS

J.) 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.
2) HOSTILE/NON-AMICABLE METHODS
A. RETORSION - is a lawful act which is designed to injure the wrongdoingState.
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) Classes of Extradition Treaties: a.) Specific List Treaties. b) No List Treaty (principle of double
criminality)

4) 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, overturningthe
Court’s 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 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.

Government of the United States versus Purganan (389 SCRA 623)

Concept of Extraordinary Rendition (is this valid under international law?)

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).
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 existingdispute 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:
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 aequoet 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).

International Human Rights Law

a. Universal Declaration of Human Rights

b. International Covenant on Civil and Political Rights (ICCPR)

c. International Covenant on Economic, Social and Cultural Rights (ICESCR)


International Humanitarian Law (IHL) and Neutrality

a. Categories of Armed Conflicts

(1) International Armed Conflicts

(2) Internal or Non-International Armed Conflict

(3) War of National Liberation

b. Core International Obligations of States in IHL

c. Principles of IHL

(1) Treatment of Civilians

(2) Prisoners of War

d. Law on Neutrality