Public International Law SAMPLEX

III. International Humanitarian Law v. International Human Rights Law

SET 1
I. Principle of Military Necessity (5%)
- The belligerent may employ any amount of force to compel the complete
submission of the enemy with the least possible loss of lives, time and money.
Principle of Chivalry (5%)
- Prohibits the belligerents from the employment of perfidious or treacherous
methods such as the use of illegal red cross emblem.
Principle of Humanity (5%)
- Prohibits use of any measure that is not absolutely necessary for the purpose
of the war.
Refugee (5%)
- A refugee is someone who has been forced to flee his or her country because
of persecution, war or violence. A refugee has a well-founded fear of
persecution for reasons of race, religion, nationality, political opinion or
membership in a particular social group. Most likely, they cannot return
home or are afraid to do so.
Asylum (5%)
- Asylum is a protection granted to foreign nationals who can prove they have a
credible fear of returning to their home country because of very specific
reasons that are outlined by international law or an accepting State.
a. Time Applicability
- Under International Humanitarian Law, the killing of a combatant in an
armed conflict may be justified. However, International Human Rights Laws
apply and must be observed at all times.
b. Acts govern
- Issues relating to the maltreatment of civilians and prisoners of war in zones
of armed conflict usually involve International Humanitarian Laws, such as
the Geneva Conventions and the Hague Conventions. However, in
International Human Rights Law seeks to regulate the relationship of the
government to its population to which must assure and secure the right to
life, liberty, and property in all aspects whether during peace or war.
c. Base/Sources
- The sources of International Humanitarian Laws are the various treaties and
agreements such as the Geneva Conventions, Hague Conventions, Geneva
Protocols, Chemical Weapons Conventions and others which mandate the
prohibition of the use of nuclear weapons, humane treatment of prisoners of
war and citizens of occupied territories, and the laws governing the occupied
territories. The sources of International Human Rights Laws are treaties
agreed upon by all States recognizing the right to life, liberty, property, and all
other human rights accorded to all human beings. Examples of such treaties
are the Universal Declaration of Human Rights, International Convention on
Civil and Political Rights, International Convention on Economic, Social and
Cultural Rights and others.

II. Modes of International Dispute Resolution (10%) IV. Functions of Security Council

International Dispute Resolution  Maintain international peace and security.

1. Arbitration
- International arbitration is the process of resolving disputes between or
among transnational parties through the use of one or more arbitrators
rather than through the courts. It requires the agreement of the parties,
which is usually given via an arbitration clause that is inserted into the
contract or business agreement. The decision is usually binding
 Investigate disputes and call parties to settle through peaceful
means.
 Determine the existence of threats to peace, breach of peace, acts of
aggression, and make appropriate recommendations.
 May conduct preventive actions consisting of provisional measures
to prevent conflict from worsening, and may involve the deployment
of peacekeeping and/or observer missions.

2. Mediation V. Deportation v. Extradition

- Mediation is a voluntary process which depends on the continuing  Extradition
cooperation of both parties since either party can withdraw at any time. - The surrender of a person by one state to another state where he is wanted
for prosecution or, if already convicted, for punishment. Surrender is made at
The following are the seven major international arbitral institutions: the request of the latter state on the basis of an extradition treaty.
I. Permanent Court of Arbitration (PCA)
II. International Commercial Arbitration (ICA)  Deportation
III. International Centre of Settlement of Investment Disputes (ICSID) - Expulsion of an alien who is considered undesirable by the local state, usually
IV. WIPO Arbitration and Mediation Center but not necessarily to his own state.Unilateral act of a local state and is made
V. WTO Dispute Settlement System in its own interest.
VI. Court of Arbitration for Sport (CAC)
VII. Society of Maritime Arbitrators (SMA)
VI. Crimes against Humanity – Give 5 examples

 Art. 7 of the Rome Statute states:

1. Murder
2. Extermination
3. Enslavement
4. Deportation of forcible transfer of population
5. Torture
6. Rape, sexual slavery, enforced prostitution, forced
pregnancy, enforced sterilization, or any other form of
sexual violence of comparable gravity.
7. Apartheid
8. Enforced Disappearances of persons.

VII. Opinion on West Philippine Sea

VIII. Executive Agreement v. Treaty

 Executive Agreement
- According to the Vienna Convention, a treaty is an international agreement
concluded between States in written for and governed by international law,
whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation.

 Treaty
- Executive Agreements refer to adjustments of detail carrying out well-
established national policies and temporary arrangements (Commissioner of
Customs vs. Eastern Sea Trading, supra).
SET 2
I. Define the following:
a. Jus Cogens
- Jus cogens norms under the Vienna Convention of Law of the Treaties are
"norm[s] accepted and recognized by the international community of States as
a whole as [norms] from which no derogation is permitted and which can be
modified only by a subsequent norm of general international law having the
same character."
b. Erga Omnes
- The term erga omnes (Latin: in relation to everyone) in international law has
been used as a legal term describing obligations owed by States towards the
community of states as a whole.
c. Doctrine of Non-Intervention
- It is the duty of a state to abstain from intervening into the affairs of another.
It is expected that states must respect the independence of other states. In
other words, the right of independence carries with it, by necessary
implication, the correlative duty of non-intervention.
d. Pacta Sunt Servanda
- “Treaties must be kept.” Or “Treaties entered into by contracting States must
be complied with in good faith.
- With reference to international agreements, "every treaty in force is binding
upon the parties to it and must be performed by them in good faith." This
entitles states to require that obligations be respected and to rely upon the
obligations being respected. This good faith basis of treaties implies that a
party to the treaty cannot invoke provisions of its municipal (domestic) law as
justification for a failure to perform. However, with regards to the Vienna
Convention and the UNIDROIT Principles it should be kept in mind that these
are heavily influenced by civil law jurisdictions. To derive from these sources
that pacta sunt servanda includes the principle of good faith is therefore
incorrect.
e. Rebus Sic Stantibus
- Under this theory, the parties stipulate in the light of certain prevailing
conditions, and once these conditions cease to exist, the contract also ceases
to exist.
- Under this theory, the parties stipulate in the light of certain prevailing
conditions, and once these conditions cease to exist the contract also ceases
to exist. Considering practical needs and the demands of equity and good
faith, the disappearance of the basis of a contract gives rise to a right to relief
in favor of the party prejudiced.
f. Doctrine of Transformation
- The transformation method requires that an international law be transformed
into a domestic law through a constitutional mechanism such as local
legislation. The incorporation method applies when, by mere constitutional
declaration, international law is deemed to have the force of domestic law.
- Treaties become part of the law of the land through transformation pursuant
to Article VII, Section 21 of the Constitution which provides that "[n]o treaty or
international agreement shall be valid and effective unless concurred in by at
least two-thirds of all the members of the Senate." Thus, treaties or
conventional international law must go through a process prescribed by the
Constitution for it to be transformed into municipal law that can be applied to
domestic conflicts.
g. Doctrine of Self-Determination of People
- Self-determination is recognized as a right of all peoples in the United Nations
Charter, Universal Declaration of Human Rights, International Covenant on
Civil and Political Rights and International Covenant on Economic, Social and
Cultural Rights, known collectively as the International Bill of Human Rights.
- The International Covenant on Economic, Social and Cultural
Rights (ICESCR) multilateral treaty commits its parties to work toward the
granting of economic, social, and cultural rights to individuals, including
labour rights and rights to health, education, and an adequate standard of
living. China signed the treaty in 1997 and ratified it in 2001.
Article 1 of both the ICCPR and the ICESCR reads:
1. All peoples have the right of self-determination. By virtue of that
right they freely determine their political status and freely pursue
their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural
wealth and resources without prejudice to any obligations arising
out of international economic co-operation, based upon the principle
of mutual benefit, and international law. In no case may a people be
deprived of its own means of subsistence.
1. The States Parties to the present Covenant, including those having
responsibility for the administration of Non-Self-Governing and
Trust Territories, shall promote the realization of the right of self-
determination, and shall respect that right, in conformity with the
provisions of the Charter of the United Nations.
 Internal Self-Determination
- The people are free to determine their political rights, pursue the economic,
social and cultural development, but this shall not extend to a unilateral right
of secession
 External Self-Determination
- The establishment of an independent state, free association with an
independent state, or the emergence into any other political status arises in
only the most extreme cases and under carefully defined circumstances.
 h. Belligerency
- It exists when the inhabitants of a state rise up in arms for the purpose of
overthrowing the legitimate government. It is supposed to be a merely
internal affair of the state and does not produce much international
repercussion, The relations between the state and other states continue to be
governed by the laws of peace and the relations between the rebel community
continue to be regulated by the international law.
i. Uti Possidetis
- Uti possidetis juris or uti possidetis iuris (Latin for "as you possess under law")
is a principle of international law which provides that newly-formed sovereign
states should retain the internal borders that their preceding dependent area
had before their independence.
- is a principle in international law that territory and other property remains
with its possessor at the end of a conflict, unless otherwise provided for by
treaty.
- Uti possidetis juris has been applied in modern history to such regions
as South America, Africa, the Soviet Union, and numerous other regions
where centralized governments were broken up, or where imperial rulers were
overthrown. It is often applied to prevent foreign intervention by eliminating
any contested terra nullius, or no man's land, that foreign powers could claim,
or to prevent disputes that could emerge with the possibility of redrawing the
borders of new states after their independence.
j. Reservation
- A reservation is 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 modify the legal effect of certain provisions
of the treaty in their application to that State.
II.
1.
a. Treaty v. Agreement
 Executive Agreement
- According to the Vienna Convention, a treaty is an international agreement
concluded between States in written for and governed by international law,
whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation.
 Treaty
- Executive Agreements refer to adjustments of detail carrying out well-
established national policies and temporary arrangements (Commissioner of
Customs vs. Eastern Sea Trading, supra).
b. Treaty making process/Steps with Simple Description
- The usual steps in the treaty-making process are: negotiation, signature,
ratification, and exchange of the instruments of ratification. The treaty may
then be submitted for registration and publication under the U.N. Charter,
although this step is not essential to the validity of the agreement as between
the parties.
a. Negotiation may be undertaken directly by the head of state
but he now usually assigns this task to his authorized
representatives. These representatives are provided with
credentials known as full powers, which they exhibit to the
other negotiators at the start of the formal discussions. It is
standard practice for one of the parties to submit a draft of the
proposed treaty which, together with the counter-proposals,
becomes the basis of the subsequent negotiations. The
negotiations may be brief or protracted, depending on the issues
involved, and may even "collapse" in case the parties are unable
to come to an agreement on the points under consideration.
b. If and when the negotiators finally decide on the terms of the
treaty, the same is opened for signature. This step is primarily
intended as a means of authenticating the instrument and for
the purpose of symbolizing the good faith of the parties; but,
significantly, it does not indicate the final consent of the state in
cases where ratification of the treaty is required. The document
is ordinarily signed in accordance with the alternat, that is, each
of the several negotiators is allowed to sign first on the copy
which he will bring home to his own state.
c. Ratification, which is the next step, is the formal act by which
a state confirms and accepts the provisions of a treaty
concluded by its representatives. The purpose of ratification is to
enable the contracting states to examine the treaty more closely
and to give them an opportunity to refuse to be bound by it
should they find it inimical to their interests. It is for this reason
that most treaties are made subject to the scrutiny and consent
of a department of the government other than that which
negotiated them.
d. The last step in the treaty-making process is the exchange of
the instruments of ratification, which usually also signifies
the effectivity of the treaty unless a different date has been
agreed upon by the parties. Where ratification is dispensed with
and no effectivity clause is embodied in the treaty, the
instrument is deemed effective upon its signature.
 c. Whether or not EDCA is unconstitutional as it lacks
the requirement of concurrence of the Senate.
From the case of Saguisag v. Executive Secretary,
- The power of the President to enter into binding executive agreements without
Senate concurrence is already well-established in this jurisdiction. That power
has been alluded to in our present and past Constitutions, in various
statutes, in Supreme Court decisions, and during the deliberations of the
Constitutional Commission. They cover a wide array of subjects with varying
scopes and purposes, including those that involve the presence of foreign
military forces in the country.
- Executive agreements are defined as "international agreements embodying
adjustments of detail carrying out well-established national policies and
traditions and those involving arrangements of a more or less temporary
nature." It can cover a wide array of subjects that have various scopes and
purposes. In fact, it could cover subjects such as defense, trade, scientific
cooperation, aviation, atomic energy, environmental cooperation, peace
corps, arms limitation, and nuclear safety, among others.
- One of the distinguishing features of executive agreements is that their
validity and effectivity are not affected by a lack of Senate concurrence.
Treaties are formal documents which require ratification with the approval of
two-thirds of the Senate. Executive agreements become binding through
executive action without the need of a vote by the Senate or by Congress.
- [T]he right of the Executive to enter into binding agreements without the
necessity of subsequent Congressional approval has been confirmed by long
usage. From the earliest days of our history we have entered into executive
agreements covering such subjects as commercial and consular relations,
most-favored-nation rights, patent rights, trademark and copyright
protection, postal and navigation arrangements and the settlement of
claims. The validity of these has never been seriously questioned by our courts.
- Executive agreements may dispense with the requirement of Senate
concurrence because of the legal mandate with which they are concluded. As
culled from the afore-quoted deliberations of the Constitutional Commission,
past Supreme Court Decisions, and works of noted scholars, executive
agreements merely involve arrangements on the implementation
of existing policies, rules, laws, or agreements.
- They are concluded:
(1) to adjust the details of a treaty;
(2) pursuant to or upon confirmation by an act of the
Legislature; or
(3) in the exercise of the President's independent
powers under the Constitution. The raison
d'etre of executive agreements hinges
on prior constitutional or legislative
authorizations.
- No court can tell the President to desist from choosing an executive
agreement over a treaty to embody an international agreement, unless the
case falls squarely within Article VIII, Section 25.
- Indeed, in the field of external affairs, the President must be given a larger
measure of authority and wider discretion, subject only to the least amount of
checks and restrictions under the Constitution.
- Section 9 of Executive Order No. 459, or the Guidelines in the Negotiation of
International Agreements and its Ratification, thus, correctly reflected the
inherent powers of the President when it stated that the DFA "shall determine
whether an agreement is an executive agreement or a treaty."
- Accordingly, in the exercise of its power of judicial review, the Court does not
look into whether an international agreement should be in the form of a treaty
or an executive agreement, save in cases in which the Constitution or a
statute requires otherwise. Rather, in view of the vast constitutional powers
and prerogatives granted to the President in the field of foreign affairs, the
task of the Court is to determine whether the international agreement is
consistent with the applicable limitations.
- Executive agreements may cover the matter of foreign military forces if
it merely involves detail adjustments.
- In fact, the Court has already implicitly acknowledged this practice in Lim v.
Executive Secretary. In that case, the Court was asked to scrutinize the
constitutionality of the Terms of Reference of the Balikatan 02-1 joint military
exercises, which sought to implement the VFA. Concluded in the form of an
executive agreement, the Terms of Reference detailed the coverage of the term
"activities" mentioned in the treaty and settled the matters pertaining to the
construction of temporary structures for the U.S. troops during the activities;
the duration and location of the exercises; the number of participants; and
the extent of and limitations on the activities of the U.S. forces. The Court
upheld the Terms of Reference as being consistent with the VFA. It no longer
took issue with the fact that the Balikatan Terms of Reference was not in the
form of a treaty concurred in by the Senate, even if it dealt with the regulation
of the activities of foreign military forces on Philippine territory.
- In Nicolas v. Romulo, the Court again impliedly affirmed the use of an
executive agreement in an attempt to adjust the details of a provision of the
VFA. The Philippines and the U.S. entered into the Romulo-Kenney
Agreement, which undertook to clarify the detention of a U.S. Armed Forces
member, whose case was pending appeal after his conviction by a trial court
for the crime of rape. In testing the validity of the latter agreement, the Court
precisely alluded to one of the inherent limitations of an executive agreement:
it cannot go beyond the terms of the treaty it purports to implement. It was
eventually ruled that the Romulo-Kenney Agreement was "not in accord" with
the VFA, since the former was squarely inconsistent with a provision in the
treaty requiring that the detention be "by Philippine authorities."
Consequently, the Court ordered the Secretary of Foreign Affairs to comply
with the VFA and "forthwith negotiate with the United States representatives
 for the appropriate agreement on detention facilities under Philippine
authorities as provided in Art. V, Sec. 10 of the VFA. "
- In light of the President's choice to enter into EDCA in the form of an
executive agreement, respondents carry the burden of proving that it is a
mere implementation of existing laws and treaties concurred in by the Senate.
EDCA must thus be carefully dissected to ascertain if it remains within the
legal parameters of a valid executive agreement.
2. Main Organs of the United Nations (with simple description)
 The General Assembly
- The General Assembly is the main deliberative, policymaking and
representative organ of the UN. All 193 Member States of the UN are
represented in the General Assembly, making it the only UN body with
universal representation. Each year, in September, the full UN membership
meets in the General Assembly Hall in New York for the annual General
Assembly session, and general debate, which many heads of state attend and
address. Decisions on important questions, such as those on peace and
security, admission of new members and budgetary matters, require a two-
thirds majority of the General Assembly. Decisions on other questions are by
simple majority. The General Assembly, each year, elects a GA President to
serve a one-year term of office.
 The Secretariat
- The Secretariat comprises the Secretary-General and tens of thousands of
international UN staff members who carry out the day-to-day work of the UN
as mandated by the General Assembly and the Organization's other principal
organs. The Secretary-General is chief administrative officer of the
Organization, appointed by the General Assembly on the recommendation of
the Security Council for a five-year, renewable term. UN staff members are
recruited internationally and locally, and work in duty stations and on
peacekeeping missions all around the world. But serving the cause of peace
in a violent world is a dangerous occupation. Since the founding of the United
Nations, hundreds of brave men and women have given their lives in its
service.
 The Security Council
- The Security Council has primary responsibility, under the UN Charter, for
the maintenance of international peace and security. It has 15 Members (5
permanent (Russia, China, USA, France, United Kingdom) and 10 non-
permanent members). Each Member has one vote. Under the Charter, all
Member States are obligated to comply with Council decisions. The Security
Council takes the lead in determining the existence of a threat to the peace or
act of aggression. It calls upon the parties to a dispute to settle it by peaceful
means and recommends methods of adjustment or terms of settlement. In
some cases, the Security Council can resort to imposing sanctions or even
authorize the use of force to maintain or restore international peace and
security. The Security Council has a Presidency, which rotates, and changes,
every month.
 Economic and Social Council
- The Economic and Social Council is the principal body for coordination, policy
review, policy dialogue and recommendations on economic, social and
environmental issues, as well as implementation of internationally agreed
development goals. It serves as the central mechanism for activities of the UN
system and its specialized agencies in the economic, social and environmental
fields, supervising subsidiary and expert bodies. It has 54 Members, elected
by the General Assembly for overlapping three-year terms. It is the United
Nations’ central platform for reflection, debate, and innovative thinking
on sustainable development.
 International Court of Justice
- The International Court of Justice is the principal judicial organ of the United
Nations. Its seat is at the Peace Palace in the Hague (Netherlands). It is the
only one of the six principal organs of the United Nations not located in New
York (United States of America). The Court’s role is to settle, in accordance
with international law, legal disputes submitted to it by States and to give
advisory opinions on legal questions referred to it by authorized United
Nations organs and specialized agencies.
3. Municipal Law v. International Law, what prevails?
- There are two schools of thought in view of international law - "monism" and
"dualism".
- Monists believe that international law and domestic law are part of a single
legal order; international law is automatically incorporated into each nation's
legal system and that international law is supreme over domestic law.
Monism requires that domestic courts "give effect to international law,
notwithstanding inconsistent domestic law, even constitutional law of a
constitutional character."
- Dualists, however, contend that international law and domestic law are
distinct, each nation ascertaining for itself when and to what extent
international law is incorporated into its legal system, and that the status of
international law in the domestic system is determined by domestic law.
Under this view, "when municipal law provides that international law applies
in whole or in part within our jurisdiction, it is but an exercise of the authority
of municipal law, an adoption or transformation of the rules of international
law.
- In the Philippines, while specific rules on how to resolve conflicts between a
treaty law and an act of Congress, whether made prior or subsequent to its
execution, have yet to be succinctly defined, the established pattern, however,
would show a leaning towards the dualist model. The Constitution
exemplified by its incorporation clause (Article II, Section 2), as well as
statutes such as those found in some provisions of the Civil Code and of the
Revised Penal Code, would exhibit a remarkable textual commitment
towards "internalizing" international law. The Supreme Court itself has
 recognized that "the principle of international law" are deemed part of the law
of the land as a condition and as a consequence of our admission in the
society of nations.
4. Sources of International Law (TANDAAN: IN ORDER DAPAT)
- According to Art. 38 of the Statue of the ICJ:
The Court, whose function is to decide in accordance with international law
such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular,
establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as
law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, that only the parties bound by
the decision in any particular case, judicial decisions and the
teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of rules of law.
 Customary International Law
- A general and consistent practice of states that there are laws under
which they are willing to be bound.
 International Agreements (Treaties)
- Treaties determine the rights and duties of states just as individual rights
are determined by contracts. It is essentially contracts between states.
 Generally Recognized Principles of Law
- It refers to norms of general or customary international law which are
binding on all states, i.e., renunciation of war as an instrument of
national policy, the principle of sovereign immunity, a person's right to
life, liberty and due process, and pactasuntservanda, among others.
 Judicial Decisions
- The decisions of the court have no binding force except between the
parties and in respect of that particular case. Decisions do not constitute
stare decisis. However, the decisions of the ICJ are not only regarded as
highly persuasive in international law circles; they have also contributed
to the formulation of principles that have become international law.
 Teachings of Highly Qualified and Recognized Publicists
- The ICJ is generally reluctant to refer to writers but they are often taken
into consideration. The extent to which they are referred to depends on
the tradition of the court or of individual judges. Publicists are
institutions which write on international law. However, it should be
noted that these institutions are government sponsored; hence, they bear
within themselves a potential for national bias.
e. State
 A State is a:
1. Community of persons, more or less numerous,
2. Permanently occupying a fixed territory,
3. Possessing an organized government,
4. Independent of external control,
5. To which a great body of inhabitants render habitual
obedience.
 The Elements of the State are:
(1) People – it refers to the entire body of those citizens of a state or
nation who are invested with political power for political
purposes. They must be numerous enough to be self-sufficient
and to defend themselves and small enough to be easily
administered.
(2) Territory – is a fixed area or surface of the Earth where the
inhabitants of a State live and where they maintain a
government of their own. It must be neither too big as to be
difficult to administer and defend nor too small as to be unable
to provide for the needs of the population. The three
components of the territory are:
a. Terrestrial domain – area of the land.
b. Fluvial domain – external and internal waters.
c. Aerial domain – the air space above the land and the
waters.
(3) Government - is the institution or aggregate of institutions by
which an independent society makes and carries out those
rules of action which are necessary to enable men to live in a
social state, or which are imposed upon the people forming that
society by those who possess the power or authority of
prescribing them.
(4) Sovereignty – is the supreme power in a State by which a State
is governed. It provides that its citizen, to whom sovereignty
resides, has the power to determine their own laws and
establish foreign relations with other states without control or
influence by an another state.
f. Succession of States
- The Principle of Succession of States provides that when a state is
extinguished or is created as a result of any conflict, war, epidemic,
emigration en masse, or events that may cause the extinction of a state, state
succession takes place when one state assumes the rights and some of the
obligations of another because of certain changes in the condition of the
latter.
- The Principle of Succession of Government provides that where one
government replaces another either by peaceful or violent means, the integrity
of the state is not affected, the state continues as the same international
person except only that its lawful representative is changed. It is presumed
that all rights of the predecessor are inherited by the successor government.