Escolar Documentos
Profissional Documentos
Cultura Documentos
-Spinoza on Ethics
Notes:
INTRODUCTION like processes.
negotiations
Definition and
Public v Private International Law arbitration,
Basis of Public International Law reprisals and
1. Naturalist even war
2. Positivists 3. Source Derived from Consists mainly
3. Eccletics such sources from the
Three Grand Divisions as lawmaking
Relations between International and Municipal international authority of each
Law customs, state.
1. From the viewpoint of doctrine international
a. Dualist conventions
b. Monists and the
2. From the view of practice general
a. Doctrine of Transformation principles of
b. Doctrine of Incorporation law.
4. Subject Applies to Regulates the
¯°º°¯ relations relations of
DEFINITION OF Public International Law states inter se individuals
It is the body of rules and principles that are and other whether of the
recognized as legally binding and which govern international same nationality
the relations of states and other entities invested persons. or not.
with international legal personality. Formerly
known as “law of nations” coined by Jeremy 5. Infractions are Generally, entails
Bentham in 1789. Responsib usually only individual
ility for collective in responsibility.
Public International Law Distinguished From violation the sense that
Private International Law/Conflict of Laws it attaches
It is that part of the law of each State which directly to the
determines whether, in dealing with a factual state and not
situation, an event or transaction between private to its
individuals or entities involving a foreign element, nationals.
the law of some other State will be recognized.
BASIS OF PIL – 3 SCHOOLS OF THOUGHT [Why
Public Private are rules of international law binding?]
1. Nature Public is As a rule, Private
1. Naturalist –
international is national or
★ PIL is a branch of the great law of nature
in nature. It is municipal in
– the sum of those principles which ought
a law of a character.
to control human conduct, being founded
sovereign over Except when
on the very nature of man as a rational and
those embodied in a
social being. [Hugo Grotius]
subjected to treaty or
his sway convention, ★ PIL is binding upon States
[Openheim – becomes
Lauterpacht, international in 2. Positivist –
38.] character. It is a ★ Basis is to be found in the
law, not above, consent and conduct of States.
but between,
sovereign states
★ Tacit consent in the case of
customary international law.
and is, therefore,
a weaker law. ★ Express in conventional law.
[Openheim – ★ Presumed in the general law of
Lauterpacht, 38.] nations. [Cornelius van Bynkershoek]
2. Disputes are Recourse is with 3. Groatians or Eclectics –
Settlemen resolved municipal ★ Accepts the doctrine of natural law, but
t of through tribunals through maintained that States were accountable
Dispute international local only to their own conscience for the
modes of administrative observance of the duties imposed by
settlement – and judicial natural law, unless they had agreed to be
3 PUBLIC INTERNATIONAL LAW 2008
bound to treat those duties as part of as part of the law of the land…” However, no
positive law. [Emerich von Vattel] primacy is implied. Notes:
★ Middle ground
Q: What are these generally accepted
3 GRAND DIVISIONS principles?
1. Laws of Peace – normal relations between A: Pacta sunt servanda, sovereign equality among
states in the absence of war. states, principle of state immunity; right of states
to self-defense
2. Laws of War – relations between hostile or
belligerent states during wartime. Secretary Of Justice v. Judge Lantion and
Jimenez [GR 139465, 18 Jan. 2000]
3. Laws of Neutrality – relations between a non-
participant state and a participant state during FACTS: A possible conflict between the US-RP
wartime. This also refers to the relations among Extradition Treaty and Philippine law
non-participating states.
RELATIONS BETWEEN INTERNATIONAL LAW AND ISSUE: WON, under the Doctrine of Incorporation,
MUNICIPAL LAW International Law prevails over Municipal Law
This is followed in the Philippines: In case of conflict, the courts should harmonize
Art. II, Sec. 2 – “The Philippines…adopts the both laws first and if there exists an unavoidable
generally accepted principles of international law contradiction between them, the principle of lex
4 PUBLIC INTERNATIONAL LAW 2008
posterior derogat priori - a treaty may repeal a Held: While sovereignty has traditionally been
statute and a statute may repeal a treaty - will deemed absolute and all-encompassing on the Notes:
apply. But if these laws are found in conflict with domestic level, it is however subject to
the Constitution, these laws must be stricken out restrictions and limitations voluntarily agreed to
as invalid. by the Philippines, expressly or impliedly, as a
member of the family of nations. By the doctrine
of incorporation, the country is bound by
In states where the constitution is the highest law
generally accepted principles of international law,
of the land, such as in ours, both statutes and
which are considered to be automatically part of
treaties may be invalidated if they are in conflict
our own laws. One of the oldest and most
with the constitution.
fundamental rules in international law is pacta
sunt servanda – international agreements must be
Supreme Court has the power to invalidate a performed in good faith. A state which has
treaty – Sec. 5(2)(a), Art. VIII, 1987 Constitution contracted valid international obligations is bound
to make in its legislations such modifications as
Q: What is the doctrine of incorporation? How may be necessary to ensure the fulfillment of the
is it applied by local courts? obligations.
Held: Under the doctrine of incorporation, rules
of international law form part of the law of the By their inherent nature, treaties really limit or
land and no further legislative action is needed to restrict the absoluteness of sovereignty. By their
make such rules applicable in the domestic voluntary act, nations may surrender some
sphere. aspects of their state power in exchange for
greater benefits granted by or derived from a
The doctrine of incorporation is applied whenever convention or pact. After all, states, like
municipal tribunals (or local courts) are individuals, live with coequals, and in pursuit of
confronted with situations in which there appears mutually covenanted objectives and benefits,
to be a conflict between a rule of international they also commonly agree to limit the exercise of
law and the provisions of the Constitution or their otherwise absolute rights. Thus, treaties
statute of the local state. Efforts should first be have been used to record agreements between
exerted to harmonize them, so as to give effect to States concerning such widely diverse matters as,
both since it is to be presumed that municipal law for example, the lease of naval bases, the sale or
was enacted with proper regard for the generally cession of territory, the termination of war, the
accepted principles of international law in regulation of conduct of hostilities, the formation
observance of the Incorporation Clause in Section of alliances, the regulation of commercial
2, Article II of the Constitution. In a situation relations, the settling of claims, the laying down
however, where the conflict is irreconcilable and of rules governing conduct in peace and the
a choice has to be made between a rule of establishment of international organizations. The
international law and municipal law, sovereignty of a state therefore cannot in fact and
jurisprudence dictates that municipal law should in reality be considered absolute. Certain
be upheld by the municipal courts for the reason restrictions enter into the picture: (1) limitations
that such courts are organs of municipal law and imposed by the very nature of membership in the
are accordingly bound by it in all circumstances. family of nations and (2) limitations imposed by
The fact that international law has been made treaty stipulations. (Tanada v. Angara, 272 SCRA
part of the law of the land does not pertain to or 18, May 2, 1997 [Panganiban])
imply the primacy of international law over
national or municipal law in the municipal sphere. Doctrine of Transformation –
The doctrine of incorporation, as applied in most Legislative action is required to make the treaty
countries, decrees that rules of international law enforceable in the municipal sphere.
are given equal standing with, but are not
superior to, national legislative enactments. Generally accepted rules of international law are
Accordingly, the principle of lex posterior derogat not per se binding upon the state but must first be
priori takes effect – a treaty may repeal a statute embodied in legislation enacted by the lawmaking
and a statute may repeal a treaty. In states body and so transformed into municipal law. This
where the Constitution is the highest law of the doctrine runs counter Art. II, Sec. 2, of the 1987
land, such as the Republic of the Philippines, both Constitution.
statutes and treaties may be invalidated if they A reading of the case of Kuroda v Jalandoni, [GRN
are in conflict with the Constitution. (Secretary L-2662 March 26, 1949], one may say that
of Justice v. Hon. Ralph C. Lantion, G.R. No. Supreme Court expressly ruled out the Doctrine of
139465, Jan. 18, 2000, En Banc [Melo]) Transformation when they declared that generally
accepted principles of international law form a
Q: Is sovereignty really absolute and all- part of the law of our nation even if the
encompassing? If not, what are its restrictions Philippines was not a signatory to the convention
and limitations? embodying them, for our Constitution has been
deliberately general and extensive in its scope
5 PUBLIC INTERNATIONAL LAW 2008
Q: What must a person who feels aggrieved by From the wordings of the Lateran Treaty, it is
the acts of a foreign sovereign do to espouse his difficult to determine whether the statehood is
cause? vested in the Holy See or in the Vatican City.
Held: Under both Public International Law and
Transnational Law, a person who feels aggrieved The Vatican City fits into none of the established
by the acts of a foreign sovereign can ask his own categories of states, and the attribution to it of
government to espouse his cause through “sovereignty” must be made in a sense different
diplomatic channels. from that in which it is applied to other states.
essentially different from those pursued by states wide interests and activities of the Vatican City
to be invested with international personality. are such as to make it in a sense an “international Notes:
state.”
Since the Pope prefers to conduct foreign
One authority wrote that the recognition of the
relations and enter into transactions as the Holy
Vatican City as a state has significant implication -
See and not in the name of the Vatican City, one
that it is possible for any entity pursuing objects
can conclude that in the Pope's own view, it is the
essentially different from those pursued by states
Holy See that is the international person.
to be invested with international personality.
The Philippines has accorded the Holy See the Inasmuch as the Pope prefers to conduct foreign
status of a foreign sovereign. The Holy See, relations and enter into transactions as the Holy
through its Ambassador, the Papal Nuncio, has See and not in the name of the Vatican City, one
had diplomatic representations with the can conclude that in the Pope's own view, it is the
Philippine government since 1957. This appears to Holy See that is the international person.
be the universal practice in international
relations. The Republic of the Philippines has accorded the
Holy See the status of a foreign sovereign. The
Q: Discuss the Status of the Vatican and the Holy See, through its Ambassador, the Papal
Holy See in International Law. Nuncio, has had diplomatic representations with
Held: Before the annexation of the Papal States the Philippine government since 1957. This
by Italy in 1870, the Pope was the monarch and appears to be the universal practice in
he, as the Holy See, was considered a subject of international relations. (Holy See, The v. Rosario,
International Law. With the loss of the Papal Jr., 238 SCRA 524, 533-534, Dec. 1, 1994, En Banc
States and the limitation of the territory under [Quiason])
the Holy See to an area of 108.7 acres, the
position of the Holy See in International Law
became controversial.
A: Determines the area over which the military forces, by organizing a local government
State exercises jurisdiction unit, and by awarding petroleum drilling rights, Notes:
★ Nomadic tribe not a State among other political and administrative acts. In
1978, it confirmed its sovereign title by the
Q: What comprises the Philippine Archipelago? promulgation of Presidential Decree No. 1596,
A: §1, Article 1, 1987 Philippine Constitution. which declared the Kalayaan Island Group part of
Philippine territory.
“The national territory comprises the Philippine
archipelago, with all the islands and waters C. Government –
embraced therein, and all other territories over ★ the agency or instrumentality
which the Philippines has sovereignty or through which the will of the State is
jurisdiction, consisting of its terrestrial, fluvial, formulated, expressed and realized
and aerial domains, including its territorial sea, ★ 2 KINDS:
the seabed, the subsoil, the insular shelves, and 1. De Jure
other submarine areas. The waters around, One with rightful title
between, and connecting the islands of the but not power or control, because:
archipelago, regardless of their breadth and ☀ Power was
dimensions, form part of the internal waters of withdrawn;
the Philippines.” ☀ Has not yet
entered into the exercise of
Q: The provision deleted the reference to power
territories claimed “by historic right or legal 2. De Facto
title.” Does this mean that we have abandoned A government of fact
claims to Sabah? Actually exercises
A: NO! This is not an outright or formal power or control, but has NO legal
abandonment of the claim. Instead, the claim was title
left to a judicial body capable of passing 3 Kinds:
judgment over the issue
a) By revolution –
★ The definition covers the that which is established by the
following territories: inhabitants who rise in revolt
1. Ceded to the US under the against and depose the
Treaty of Paris of 10 Dec. 1898 legitimate regime;
2. Defined in the 07 Nov. 1900
Treaty between US and Spain, on the EX. the Commonwealth
following islands; established by Oliver Cromwell
3. Cagayan; which supplanted the monarchy
4. Sulu; under Charles I of England
5. Sibuto
6. Defined in the 02 Jan. 1930 b) By
Treaty between the US and the UK over government of paramount force
the Turtle and Mangsee Islands – that which is established in the
7. Island of Batanes course of war by the invading
8. Contemplated in the phrase forces of one belligerent in the
“belonging to the Philippines by historic territory of the other
right or legal title” belligerent, the government of
which is also displaced
Q: What is the basis of the Philippine’s claim to
a part of the Spratlys Islands? (2000 Bar) EX. the Japanese occupation
A: The basis of the Philippine claim is effective government in the Philippines
occupation of a territory not subject to the which replaced the
sovereignty of another state. The Japanese Commonwealth government
forces occupied the Spratly Islands Group during during WWII
the Second World War. However, under the San
Francisco Peace Treaty of 1951, Japan formally c) By secession –
renounced all right and claim to the Spratlys. The that which is established by the
San Francisco Treaty or any other international inhabitants of a state who cedes
agreement, however, did not designate any therefrom without overthrowing
beneficiary state following the Japanese its government
renunciation of right. Subsequently, the Spratlys
became terra nullius and was occupied by the EX. the confederate government
Philippines in the title of sovereignty. Philippine during the American Civil War
sovereignty was displayed by open and public which, however, did not seek to
occupation of a number of islands by stationing depose the union government
11 PUBLIC INTERNATIONAL LAW 2008
☀ the different
sectors molding public opinion Notes:
Q: The Federation of Islamabad concluded an
agreement with the republic of Baleria when 2. Internal and External
the leaders of Islamabad made a state visit to Sovereignty
the latter. The agreement concerns the
facilitation of entry of Balerian contract Internal –
workers in Islamabad. Thereafter, a revolution ☀ the power of a
broke out in Islamabad which is now governed State to control its internal affairs
by a revolutionary junta. Most of Balerian
contract workers were arrested by Islamabad External -
Immigration officers for not having with them ☀ the power of
the necessary papers and proper documents. the State to direct its relations with
Upon learning of the incident, the government other States
of Baleria lodged a formal protest with the ☀ also called
Islamabad revolutionary government invoking “Independenc”e
certain provisions of the aforementioned
agreement. The latter replied, however that Characteristics of Sovereignty
the new government is not internationally 1. permanent
bound by the agreement that was concluded by 2. exclusivity
the former government of Islamabad and 3. comprehensiveness
Baleria. Moreover, Islamabad further 4. absoluteness
contended that the agreement was contrary to 5. individuality
its plasmatic law. Is the Islamabad 6. inalienability
revolutionary government under obligation 7. imprescriptibility
pursuant to international law, to comply with
what was agreed upon and set forth in the Q: What happens to sovereignty if the acts of
agreement concluded between Baleria and its authority cannot be exercised by the legitimate
former government? Reasons. (1985 Bar) authority?
A: Yes. A new government is exempt from A: Sovereignty not suspended.
obligation of treaties entered into by the previous
government only with respect to those whose EX.: Japanese Occupation during WWII
subject matter is political in nature. The ★ Sovereignty remained with the
facilitation of entry by Balerian contract workers US
to Islamabad is non political. Hence, the treaty ★ Japanese merely took over the
embodying such agreement is binding on the new exercise of acts of sovereignty
government of Islamabad. Nor may the new
government evade its international obligation on Q: In this case, what are the effects on the
the ground that the agreement is contrary to its laws?
Plasmatic law. The rule is settled that a state A: Political Laws -
cannot evade its international obligation by GR: Suspended!
invoking its internal law. It is presumed that the ★ Subject to revival under jus
treaty is in conformity with its internal law. postliminium – i.e., once the legitimate
D. Sovereignty – authority returns, the political laws are
★ the supreme and uncontrollable revived
power inherent in a State by which that
State is governed. May be legal or
political ★ Jus Postliminium – roman law
★ KINDS: concept. If a Roman Citizen is captured,
1. Legal and Political he loses his rights as a Roman citizen,
Sovereignty but once he returns to Rome, he recovers
all those rights again
Legal - XPN:
☀ the authority (a) Laws of Treason – Not suspended!
which has the power to issue final ★ Preservation of allegiance to
commands sovereign does not demand positive
☀ Congress is action, but only a passive attitude or
legal sovereign forbearance from adhering to the enemy
by giving the latter aid and comfort
Political - (Laurel v. Misa)
☀ the power
behind the legal sovereign, or the (b) Combatants – not covered by said rule
sum of the influences that operate
upon it
13 PUBLIC INTERNATIONAL LAW 2008
Tañada, et al. vs. Angara, et al. State is not lost when one of its elements is
[GR 118295, 02 May 1997] changed; it is lost only when at least one of its Notes:
elements is destroyed. State does not lose its
identity but remains one and the same
While sovereignty has traditionally been deemed international person notwithstanding changes in
absolute and all-encompassing on the domestic the form of its government, territory, people, or
level, it is however subject to restrictions and sovereignty. See Holy See vs. Rosario (238 SCRA
limitations voluntarily agreed to by the 524)
Philippines, expressly or impliedly, as a member
of the family of nations. From the moment of its creation, the State
continues as a juristic being, despite changes in
By the doctrine of incorporation, the country is its elements. EX.:
bound by generally accepted principles of (1) Reduction of population due to natural
international law, which are considered to be calamity
automatically part of our own laws. (2) Changes in territory
However, the disappearance of any of the
One of the oldest and most fundamental rules in elements causes the extinction of the state.
international law is pacta sunt servanda –
international agreements must be performed in Q: In the famous Sapphire Case, Emperor Louis
good faith. Napoleon filed damage suit on behalf of France
in an American Court, but he was deposed and
replaced as head of State pendent elite. Was
A treaty engagement is not a mere moral
the action abated? (Bar)
obligation but creates a legally binding obligation
A: No, because it had in legal effect been filed by
on the parties. By their inherent nature, treaties
France, whose legal existence had not been
limit or restrict the absoluteness of sovereignty.
affected by change in head of its government.
By their voluntary act, nations may surrender
Napoleon had sued not in his personal capacity
some aspects of their state power in exchange for
but officially as sovereign of France. Hence, upon
greater benefits granted by or derived from a
recognition of the duly authorized representative
convention or pact.
of the new government, the litigation could
continue.
States, like individuals, live with coequals, and in
pursuit of mutually covenanted objectives and RIGHTS OF THE STATE
benefits, they also commonly agree to limit the
exercise of their otherwise absolute rights. Fundamental Rights of States [ S P E E D ]
1. Right to Sovereignty
Thus, a state’s sovereignty cannot in fact and in and Independence;
reality be considered absolute. Certain
restrictions enter into the picture: 2. Right to Property and
Jurisdiction;
Limitations imposed by the very nature of
membership in the family of nations; and 3. Right to Existence
Limitations imposed by treaty stipulations. and Self-Defense
4. Right to Equality
Thus, when the Philippines joined the UN as one 5. Right to Diplomatic
of its 51 charter members, it consented to restrict Intercourse
its sovereign rights under the “concept of
sovereignty as AUTO-LIMITATION.” RIGHT OF EXISTENCE AND SELF-DEFENSE
★ The most elementary and
The underlying consideration in this partial important right of a State
surrender of sovereignty is the reciprocal ★ All other rights flow from this
commitment of the other contracting states in right
granting the same privilege and immunities to the ★ Recognized in the UN Charter,
Philippines, its officials and its citizens. Article 51:
authority and responsibility of the SC under Nations Charter and it does not fall under any of
the present Charter to take at any time such the exceptions to that prohibition. Notes:
action as it deems necessary in order to
maintain or restore international peace and The UN Charter in Article 2(4) prohibits the use of
security.” force in the relations of states by providing that
all members of the UN “shall refrain in their
★ Art. II, Sec. 2 – “The international relations from the threat or use of
Philippines renounces war as an instrument of force against the territorial integrity or political
national policy…” independence of any state, or in any other
★ This prohibits an manner inconsistent with the purposes of the
offensive/aggressive war United Nations.” This mandate does not only
★ But, it allows DEFENSIVE WAR! outlaw war; it encompasses all threats of and acts
★ Thus, when attacked, the of force or violence short of war.
Philippines can exercise its inherent right of
existence and self-defense As thus provided, the prohibition is addressed to
★ This right is a generally all UN members. However, it is now recognized
accepted principle of international law – thus, as a fundamental principle in customary
it is part of our law of the land, under the international law and, as such, is binding on all
Incorporation Clause (Art. II, Sec. 2, 1987 members of the international community.
Constitution)
The action taken by the allied forces cannot be
Q: State the occasions when the use of force justified under any of the three exceptions to the
may be allowed under the UN Charter. prohibition against the use of force which the UN
A: There are only two occasions when the use of Charter allows. These are: (1) inherent right of
force is allowed under the UN Charter. The first individual or collective self-defense under Article
is when it is authorized in pursuance of the 51; (2) enforcement measure involving the use of
enforcement action that may be decreed by the armed forces by the UN Security Council under
Security Council under Art. 42. The second is Article 42; and (3) enforcement measure by
when it is employed in the exercise of the regional arrangement under Article 53, as
inherent right of self-defense under conditions authorized by the UN Security Council. The allied
prescribed in Art. 51. (Justice Isagani A. Cruz, in forces did not launch military operations and did
an article entitled “A New World Order” written not occupy Iraq on the claim that their action was
in his column “Separate Opinion” published in the in response to an armed attacked by Iraq, of
March 30, 2003 issue of the Philippines Daily which there was none.
Inquirer)
Moreover, the action of the alleged allied forces
Q: Not too long ago, “allied forces”, led by was taken in defiance or disregard of the Security
Amercian and British armed forces, invaded Iraq Council Resolution No. 1441 which set up “an
to “liberate Iraqis and destroy suspected enhanced inspection regime with the aim of
weapons of mass destruction.” The Security bringing to full and verified completion the
Council of the United Nations failed to reach a disarmament process,” giving Iraq “a final
consensus on whether to support or oppose the opportunity to comply with its disarmament
“war of liberation.” Can the action taken by obligations.” This resolution was in the process of
the allied forces find justification in implementation; so was Iraq’s compliance with
International Law? Explain. (2003 Bar) such disarmament obligations.
A: The United States and its allied forces cannot
justify their invasion of Iraq on the basis of self- Q: On 31 October 2001, members of Ali Baba, a
defense under Article 51, attack by Iraq, and political extremist organization based in and
there was no necessity for anticipatory self- under the protection of Country X and
defense which may be justified under customary espousing violence worldwide as a means of
international law. Neither can they justify their achieving its objective, planted high-powered
invasion on the ground that Article 42 of the explosives and bombs at the International Trade
Charter of the United Nations permits the use of Tower (ITT) in Jewel City in Country Y, a
force against a State if it is sanctioned by the member of the United Nations. As a result of
Security Council. Resolution 1441, which gave the bombing and the collapse of the 100-story
Iraq a final opportunity to disarm or face serious twin towers, about 2000 people, including
consequences, did not authorize the use of armed women and children were killed or injured and
force. billions of dollars in property were lost.
Alternative A: In International Law, the action Immediately after the incident, Ali Baba,
taken by the allied forces cannot find speaking through its leader Bin Derdandat,
justification. It is covered by the prohibition admitted and owned responsibility for the
against the use of force prescribed by the United bombing of ITT, saying that it was done to
pressure Country Y to release captured
16 PUBLIC INTERNATIONAL LAW 2008
members of the terrorist group. Ali Baba invoking the modern view that a state does not
threatened to repeat its terrorist acts against have to wait until the potential enemy fires first. Notes:
Country Y if the latter and its allies failed to The cowboy from Texas says that outdrawing the
accede to Ali Baba’s demands. In response, foe who is about to shoot is an act of self-
Country Y demanded that Country X surrender defense.
and deliver Bin Derdandat to the government
authorities of Country Y for the purpose of trial Art. 51 says, however, that there must first be an
and “in the name of justice.” Country X refused “armed attack” before a state can exercise its
to accede to the demand of Country Y. inherent right of self-defense, and only until the
Security Council, to which the aggression should
What action or actions can Country Y legally be reported, shall have taken the necessary
take against Ali Baba and Country X to stop the measures to maintain international peace and
terrorist activities of Ali Baba and dissuade security. It was the United States that made the
Country X from harboring and giving protection “armed attack” first, thus becoming the
to the terrorist organization? Support your aggressor, not Iraq. Iraq is now not only
answer with reasons. (2002 Bar) exercising its inherent right of self-defense as
recognized by the UN Charter. (Justice Isagani A.
A: (1) Country Y may exercise the right of self- Cruz, in an article entitled “A New World Order”
defense, as provided under Article 51 of the UN written in his column “Separate Opinion”
Charter “until the Security Council has taken published in the March 30, 2003 issue of the
measure necessary to maintain international Philippines Daily Inquirer)
peace and security.” Self-defense enables
Country Y to use force against Country X as well Q: Will the subsequent discovery of weapons of
as against the Ali Baba organization. mass destruction in Iraq after its invasion by the
US justify the attack initiated by the latter?
(2) It may bring the matter to the Security Council A: Even if Iraq’s hidden arsenal is discovered – or
which may authorize sanctions against Country X, actually used – and the United States is justified
including measure invoking the use of force. in its suspicions, that circumstance will not
Under Article 4 of the UN Charter, Country Y may validate the procedure taken against Iraq. It is
use force against Country X as well as against the like searching a person without warrant and
Ali Baba organization by authority of the UN curing the irregularity with the discovery of
Security Council. prohibited drugs in his possession. The process
cannot be reversed. The warrant must first be
Alternative A: Under the Security Council issued before the search and seizure can be
Resolution No. 1368, the terrorist attack of Ali made.
Baba may be defined as a threat to peace, as it
did in defining the 11 September 2001 attacks The American invasion was made without
against the United States. The resolution permission from the Security Council as required
authorizes military and other actions to respond by the UN Charter. Any subsequent discovery of
to terrorist attacks. However, the use of military the prohibited biological and chemical weapons
force must be proportionate and intended for the will not retroactively legalize that invasion, which
purpose of detaining the persons allegedly was, legally speaking, null and void ab initio.
responsible for the crime and to destroy military (Justice Isagani A. Cruz, in an article entitled “A
objectives used by the terrorists. New World Order” written in his column
“Separate Opinion” published in the March 30,
The fundamental principles of international 2003 issue of the Philippines Daily Inquirer)
humanitarian law should be respected. Country Y
cannot be granted sweeping discretionary powers Q: State B, relying on information gathered by
that include the power to decide what states are its intelligence community to the effect that its
behind the terrorist organizations. It is for the neighbor, State C, is planning an attack on its
Security Council to decide whether force may be nuclear plan and research institute, undertook
used against specific states and under what a “preventive” attack in certain bases on State
conditions the force may be used. C located near the border of the two states. As
a result, State C presented the incident to the
Q: Is the United States justified in invading Iraq UN General Assembly but the latter referred it
invoking its right to defend itself against an to the UN Security Council as a matter, which
expected attack by Iraq with the use of its disturbs or threatens “international peace and
biological and chemical weapons of mass security”. State B argued that it was acting
destruction? within the legal bounds of Article 51 of the UN
A: The United States is invoking its right to Charter and that it was a permitted use of force
defend itself against an expected attack by Iraq in self-defense and against armed attack. Is
with the use of its biological and chemical State B responsible under International Law?
weapons of mass destruction. There is no Did State B act within the bounds set forth in
evidence of such a threat, but Bush is probably
17 PUBLIC INTERNATIONAL LAW 2008
the UN Charter on the use of force in self- Generally Intervention is Prohibited (Drago
defense? (1985 Bar) Doctrine) Notes:
A: An armed attack is not a requirement for the ★ Prohibits intervention for the
exercise of the right of self-defense. However, collection of contractual debts, public or
the attack of State B on State C cannot be private
justified as an act of self-defense under Art. 51 of ★ Formulated by Foreign Minister
the UN Charter considering that the danger Luis Drago (Argentina), in reaction to the
perceived by State B was not imminent. State B Venezuelan Incident
ought to have exhausted peaceful and pacific
methods of settlements instead of resorting to the Venezuelan Incident
use of force. In 1902, UK, Germany and Italy blockaded
Venezuelan ports to compel it to pay its
Q: Who can declare war? contractual debts leading Foreign Minister Drago
A: No one! The Constitution has withheld this to formulate a doctrine that “ a public debt
power from the government. What the cannot give rise to the right of intervention. This
Constitution allows is a declaration of a “State of principle was later adopted in the Second Hague
War”. Under Art. VI, Sec. 23(1) – “Congress, by a Conference, but subject to the qualification that
vote of 2/3 of both Houses, in joint session the debtor state should not refuse or neglect to
assembled, voting separately, shall have the sole reply to an offer of arbitration or after accepting
power to declare the existence of a state of war. the offer, prevent any compromis from being
This means that we are already under attack agreed upon, or after the arbitration, fail to
submit to the award, the qualification is known as
Q: What are the effects when Congress declares the Porter resolution.
a state of war?
A: 1. Art. VI, Sec. 23 – “In times of war…the Pacific Blockade
Congress may, by law, authorize the President, ★ one imposed during times of
for a limited period and subject to such peace
restrictions as it may prescribe, to exercise ★ were the countries at war, then
powers necessary and proper to carry out a a blockade is a legitimate measure
declared national policy. Unless sooner withdrawn ★ in fact, a blockade must not be
by resolution of the Congress, such powers shall violated by a neutral State
cease upon the next adjournment thereof.” ★ if breached, the neutral vessel is
seized
2. Art. VII, Sec. 18 – “The President shall be the
Commander-in-Chief of all armed forces…and WHEN INTERVENTION ALLOWED, Exceptions
whenever it becomes necessary, he may call out 1. Intervention as an Act of
such armed forces to prevent or suppress… Individual and Collective Self-Defense
invasion…In case, invasion…when the public safety 2. Intervention by Treaty
requires it, he may, for a period not exceeding 60 Stipulation or by Invitation
days, suspend the privilege of the writ of habeas
corpus or place the Philippines or any part thereof “Intervention by Invitation”
under martial law…” ★ Presupposes that the
inviting State is not a mere puppet of the
☀ This is in intervening State
line with the UN Charter, which also ★ EX.: Hungary
renounces war In 1956, Hungary was in
☀ As internal turmoil, and asked the
charter-member of the UN, our Soviet forces to intervene
Constitution also renounces war as an While the intervention
instrument of national policy was upon invitation, it was still
condemned because the Hungarian
RIGHTS OF SOVEREIGNTY AND INDEPENDENCE government was a mere Soviet
Intervention puppet
It is “the dictatorial interference by a State in the
internal affairs of another State, or in the 3. By UN Authorization and
relations between other States, which is either Resolution
forcible or backed by the threat of force.” ★ EX.: 1. Korean War
In fact, it is
Intervention is Different from “Intercession” UN itself that intervened
☀ Intercession is allowed!
☀ EX.: Diplomatic Protest, Tender of 2. 1990 Iraqi Annexation of Kuwait
Advice There was an SC Resolution,
authorizing the US-led multilateral
force to intervene
18 PUBLIC INTERNATIONAL LAW 2008
State by reason of the adverse and of war and thereafter annexed to and placed
uninterrupted possession thereof by the latter under the sovereignty of the conquering State Notes:
for a sufficiently long period of time ★ the taking possession of hostile territory
★ 2 REQUISITES through military force in time of war and by
a) continuous and undisturbed possession which the victorious belligerent compels the
☀ Q: What if there are enemy to surrender sovereignty of that
claims or protests to the State’s territory thus occupied
possession? ★ acquisition of territory by force of arms
A: NOT undisturbed! ★ however, conquest alone merely gives an
inchoate right; acquisition must be completed
b) lapse of a period of time by formal act of annexation
☀ No rule as to length of time ★ no longer regarded as lawful
required ★ UN Charter prohibits resort to threat or use of
☀ Question of fact force against a State’s territorial integrity or
political independence
★ Q: What is the source of this
right? Conquest is Different from “Military or
A: Roman principle of “usucapio” (long Belligerent Occupation”
continued use of real property ripened into ☀ Act whereby a military commander in the
ownership) course of war gains effective possession
of an enemy territory
Cession ☀ By itself, does not effect an acquisition
★ a derivative mode of acquisition of territory
by which territory belonging to 1 State is
transferred to the sovereignty of another Accretion
State in accordance with an agreement ★ the increase in the land area of a State
between them caused by the operation of the forces of
★ a bilateral agreement whereby nature, or artificially, through human labor
one State transfers sovereignty over a ★ Accessio cedat principali (accessory follows
definite portion of territory to another State the principal) is the rule which, in general,
E.g. Treaty of cession (maybe an outcome of governs all the forms of accretion.
peaceful negotiations [voluntary] or the ★ EX.: (1) Reclamation projects in Manila Bay
result of war[forced]) (2) Polders of the Netherlands
★ 2 KINDS:
1. Total Cession COMPONENTS OF TERRITORY
- comprises the entirety of 1 State’s TERRITORIAL DOMAIN
domain ★ The landmass where the
- the ceding State is absorbed by the people live
acquiring State and ceases to exist
- EX.: Cession of Korea to Japan under the Internal Waters
22 Aug. 1910 Treaty ★ These are bodies of water
within the land boundaries of a State, or are
2. Partial Cession closely linked to its land domain, such that
- comprises only a fractional portion of the they are considered as legally equivalent to
ceding State’s territory national land
- cession of the Philippine Islands by Spain ★ includes: rivers, lakes and
to the US in the Treaty of Paris of 10 land-locked seas, canals, and polar regions.
Dec. 1988
- Forms: Rivers
a) Treaty of Sale ☀ Kinds of Rivers
EX.: (1) Sale by Russia of Alaska to (1) National Rivers
US
(2) Sale by Spain of Caroline Lie wholly within 1
Islands to Germany State’s territorial domain – from
b) Free Gifts source to mouth
EX: (1) Cession of a portion of the
Belongs exclusively to
Horse-Shoe Reef in Lake
that State
Erie
EX.: Pasig River
by UK to US
(2) Boundary Rivers
Conquest
★ derivative mode of acquisition whereby the Separates 2 Different States
territory of 1 State is conquered in the course Belongs to both States:
25 PUBLIC INTERNATIONAL LAW 2008
☀ Celestial bodies shall be used exclusively for covers astronauts and cosmonauts. This matter is
peaceful purposes covered by the Registration of Objects in Space Notes:
☀ Nuclear weapons and weapons of mass Convention of 1974 and the Liability for Damage
destruction shall not be placed in orbit Caused by Spaced Objects Convention of 1972.
around the earth
Q: May the USA lay exclusive claim over the
Q: What is the boundary between the air space moon, having explored it and having planted
and the outer space? her flag therein to the exclusion of other states?
A: No accepted answer yet! There are different Explain. (1979 Bar)
opinions: A: No, because the outer space and celestial
1. That it should be near the lowest altitude bodies found therein including the moon are not
(perigee) at which artificial earth satellites susceptible to the national appropriation but
can remain in orbit without being destroyed legally regarded as res communes.
by friction with the air around 190 km from
earth’s surface
3. Functional Approach
The legal regime governing space
activities are based, not on a boundary
line, but on the nature of the activities
In outer space, the space satellites or objects are What are the principal purposes of the UN?
under the jurisdiction of States of registry which 1. To maintain international peace and security
31 PUBLIC INTERNATIONAL LAW 2008
2. To develop friendly relations among nations The Charter is silent regarding withdrawal of
3. To achieve international cooperation in membership. In 1985, Indonesia withdrew its Notes:
solving international economic, social, membership from the UN and it was not
cultural and humanitarian problems compelled to remain. Subsequently, upon
4. To promote respect for human rights President Sukarno’s overthrow, Indonesia resumed
5. To be a center of harmonizing the actions of its membership, which was accepted by the UN.
nations towards those common goals.
The Principal Organs
What are the principles of the UN? 1. General Assembly (GA)
1. All its members are equal and all are 2. Security Council (SC)
committed to fulfill in good faith their 3. Economic and Social Council (ESC)
obligations under the Charter 4. Trusteeship Council (TC)
2. To settle their disputes with each other by 5. International Court of Justice (ICJ)
peaceful means 6. Secretariat
3. To refrain form the threat or use of force in
their international relations Subsidiary Organs – those which was created by
4. To refrain from assisting any State against the Charter itself or which it allows to be created
which the UN is taking preventive or whenever necessary by the SC or GA.
enforcement action. 1. Little Assembly – Interim Committee, created
in 1947 for a term of one eyar and re-
2 Kinds of Membership established in 1949 for an indefinite term.
a. Original Composed of one delegate for each member-
b. Elective – those subsequently admitted upon state, it meets when the General Assembly is
the recommendation of the UN Security Council. in recess and assists this body in the
performance of its functions.
Qualifications for Membership 2. Military Staff Committee
1. Must be State 3. Human Rights Commission
2. Must be Peace-loving
3. Must accept the obligations as member Specialized Agencies – not part of the UN, but
4. In the judgment of the Organization, be have been brought into close contact with it
able and willing to carry out such because of their purposes and functions, such as:
obligation. 1. World Health Organization
2. International Monetary Fund
How is Admission conducted? 3. Technical Assistance Board
1. Recommendation of a qualified majority
in the Security Council Proposals for Amendments to the UN Charter
- The affirmative vote of at least 9 and Ratification
members including the Big 5. 2 ways of adopting proposals:
2. Approval of the General Assembly (GA) a. directly, by 2/3 votes of all GA members
by a vote of at least 2/3 of those present and b. by 2/3 of a general conference called for this
voting. purpose by 2/3 of the GA and any 9 members of
the SC.
Note: Both SC and GA votes must be complied
with. Any amendment thus proposed shall be subject to
ratification by at least 2/3 of the GA, including
Suspension of Membership the permanent members of the SC.
Suspension may occur when a preventive or
enforcement action has been taken by the SC. ¯°º°¯
The SC may, by a qualified majority, recommend
suspension to the GA who shall in turn concur with UN General Assembly
a 2/3 vote of those present and voting.
This is the central organ of the UN. The principal
Discipline does not suspend the member’s deliberative body of the organization and is
obligations but only the exercise of its rights and vested with jurisdiction over matters concerning
privileges as a member. Only the SC may lift the the internal machinery and operations of the UN.
suspension by a qualified majority.
GA Composition
Expulsion of a Member Consists of all the members of the UN. Each
The penalty of expulsion may be imposed upon a member is entitled to send no more than 5
member which has persistently violated the delegates and 5 alternates and as many technical
principles in the UN Charter. Same voting and other personnel as it may need.
requirement as to suspension. The reason for this system of multiple delegates is
to enable the members to attend of several
Withdrawal of Membership – Indonesia Case meetings that may be taking place at the same
32 PUBLIC INTERNATIONAL LAW 2008
time in the different organs or committees of the six main committees. All issues are voted on
Organization. through resolutions passed in plenary meetings, Notes:
usually towards the end of the regular session,
However, each delegation is entitled only to one after the committees have completed their
vote in the decisions to be made by the GA. consideration of them and submitted draft
resolutions to the plenary Assembly.
GA Sessions
1. Regular sessions – every year beginning the Voting in Committees is by a simple majority. In
third Tuesday of September. plenary meetings, resolutions may be adopted by
acclamation, without objection or without a vote,
2. Special sessions – may be called at the or the vote may be recorded or taken by roll-call.
request of the SC, a majority of the member While the decisions of the Assembly have no
states, or one member with the concurrence legally binding force for governments, they carry
of the majority. the weight of world opinion, as well as the moral
3. Emergency special session – may be called authority of the world community.
within 24 hours at the request of the SC by
vote of any 9 members or by a majority of the The work of the UN year-round derives largely
members of the UN. from the decisions of the General Assembly - that
is to say, the will of the majority of the members
Some Important Functions of the GA as expressed in resolutions adopted by the
1. Deliberative – discuss principles regarding Assembly. That work is carried out:
maintenance of international peace and a. by committees and other bodies established
security and may take appropriate measures by the Assembly to study and report on
toward this end. specific issues, such as disarmament,
2. Supervisory – receives and considers reports peacekeeping, development and human
from the other organs of the UN. rights;
3. Elective – important voting functions are also b. in international conferences called for by the
vested in the GA, such as the election of the Assembly; and
non-permanent members of the SC, some c. by the Secretariat of the UN - the Secretary-
members of the TC and all the members of General and his staff of international civil
the ESC, and with the SC selects the judges of servants.
the ICJ; also participates in the amendment
of the Charter. ¯°º°¯
4. Budgetary – controls the finances of the UN
5. Constituent – amendment of the charter. UN Security Council
9. to exercise the trusteeship functions of the a. questions relating to the organization and
UN in "strategic areas"; and meetings of the Council; Notes:
10. to recommend to the General Assembly the b. the establishment of subsidiary organs; and
appointment of the Secretary-General and, c. the participation of states parties to a dispute
together with the Assembly, to elect the in the discussion of the SC.
Judges of the International Court of Justice.
Substantial matters include those that may
SC Composition require the SC under its responsibility of
Composed of 15 members, 5 of which are maintaining or restoring world peace to invoke
permanent. The so-called Big Five are China, measures of enforcement.
France, the European Union, the United Kingdom,
and the United States. What is the role of a Member of the UN but not
a member of the Security Council?
The other ten members are elected for 2-year Although not a member of the SC, it may
terms by the GA, 5 from the African and Asian participate (without vote) in the discussion of any
states, 1 from Eastern European states, 2 from question before the Council whenever the latter
Latin American states, and 2 from Western feels that the interests of that member are
European and other states. Their terms have specially affected. Such member is likewise to
been so staggered as to provide for the retirement be invited by the Council to participate (without
of ½ of them every year. vote)in the discussion of any dispute to which the
Member is a party.
These members are not eligible for immediate re-
election. Q: Loolapalooza conducted illegal invasion and
conquest against Moooxaxa. The UN Security
Chairmanship of the SC is rotated monthly on the Council called for enforcement action against
basis of the English alphabetical order of the Loolapalooza. Does enforcement action include
names of the members. sending of fighting troops?
A: NO. Compliance with the resolution calling for
SC Sessions enforcement action does not necessarily call for
The SC is required to function continuously and to the sending of fighting troops. There must be a
hold itself in readiness in case of threat to or special agreement with the SC before sending of
actual breach of international peace. For this fighting troops may be had and such agreement
purpose, all members should be represented at all shall govern the numbers and types of forces,
times at the seat of the Organization. their degree of readiness and general locations,
and the nature of the facilities and assistance to
be supplied by UN members.
SC Voting Rules
Each member of the SC has 1 vote, but distinction
is made between the permanent and the non- International Court of Justice
permanent members in the decision of substantive
questions. International Court of Justice
Composition
Yalta Voting Formula Qualifications
a. Procedural matters – 9 votes of any of SC Jurisdiction
members Functions of International Court of Justice
b. Substantive matters – 9 votes including 5 Procedure
permanent votes.
¯°º°¯
No member, permanent or not, is allowed to vote
on questions concerning the pacific settlement of International Court of Justice
a dispute to which it is a party. The International Court of Justice is the principal
judicial organ of the United Nations. Its seat is at
Rule of Great-Power Unanimity: a negative vote the Peace Palace in The Hague (Netherlands). It
by any permanent member on a non-procedural began work in 1946, when it replaced the
matter, often referred to as “veto”, means Permanent Court of International Justice which
rejection of the draft resolution or proposal, even had functioned in the Peace Palace since 1922. It
if it has received 9 affirmative votes. operates under a Statute largely similar to that of
- Abstention or absence of a member is not its predecessor, which is an integral part
regarded as veto of the Charter of the United Nations.
Procedural and Substantive Matters ICJ Composition and Qualifications
Distinguished The Court is composed of 15 judges elected to
Procedural matters include: nine-year terms of office by the United Nations
General Assembly and Security Council sitting
34 PUBLIC INTERNATIONAL LAW 2008
independently of each other. It may not include 1. Nomination made by national groups in
more than one judge of any nationality. Elections accordance with the Hague Conventions of Notes:
are held every three years for one-third of the 1907. No group shall nominate more than
seats, and retiring judges may be re-elected. The four persons and not more than two of whom
Members of the Court do not represent their shall be of their own nationality.
governments but are independent magistrates. 2. Candidates obtaining an absolute
majority in the GA and SC are considered
QUALIFICIATIONS OF JUDGES elected. In the event that more than 1
1. They must be of high moral character; national of the same state obtain the
2. Possess the qualifications required in requisite majorities in both bodies, only the
their respective countries for appointment to eldest is chosen.
the highest judicial office or are jurists of 3. In cases when membership is not
recognized competence in international law; completed by the regular elections, a joint
and conference shall be convened. If this still
3. As much as possible, they must represent fails, the judges elected shall fill the
the main forms of civilization and the remaining vacancies.
principal legal systems of the world.
ICJ Sessions
When the Court does not include a judge The Court shall remain permanently in session at
possessing the nationality of a State party to a the Hague or elsewhere as it may decide, except
case, that State may appoint a person to sit as a during the judicial vacations the dates and
judge ad hoc for the purpose of the case. duration of which it shall fix.
member of a national or international court, or of fact, only States which are parties to the statute
a commission of injury, or in any other capacity. of the ICJ and other states on conditions to be Notes:
laid down by the Security Council may be such
Functions of ICJ parties. Therefore, a private individual like A
The principal functions of the Court are: cannot bring an action before it.
2. to decide contentious case; and
3. to render advisory opinions. Q: May the United States be sued in our courts for
the value of private properties requisitioned by its
Who may file contentious cases? Army during the last World War, as well as Japan
Only states can file contentious cases and both for the “Mickey Mouse” money in payment for
must agree to the court’s jurisdiction. Only States private properties, which have not been
may apply to and appear before the Court. The redeemed until now? May the suit be brought to
Member States of the United Nations (at present the ICJ? (1979 Bar)
numbering 191) are so entitled. A: No! Even foreign states are entitled to the
• Article 34(1): Only states may be parties doctrine of state immunity in the local state. The
in cases before the Court. suit may not be brought before the ICJ without
• 2. Article 36(1): The jurisdiction of the the consent of the United States as jurisdiction of
Court comprises all cases which the parties the ICJ in contentious cases is based upon the
refer to it and all matters specially provided consent of the parties.
for in the Charter of the UN or in treaties and
conventions in force. Q: The State of Nova, controlled by an
authoritarian government, had unfriendly
Advisory Opinions relations with its neighboring state, America;
The advisory procedure of the Court is open solely Bresia, another neighboring state, had been
to international organizations. The only bodies at shipping arms and ammunitions to Nova for use
present authorized to request advisory opinions of in attacking America. To forestall am attack,
the Court are five organs of the United Nations and America placed floating mines on the territorial
16 specialized agencies of the United Nations waters surrounding Nova. America supported a
family. group of rebels organized to overthrow the
government of Nova and to replace it with a
friendly government. Nova decided to file a
On receiving a request, the Court decides which
case against America in the International Court
States and organizations might provide useful
of Justice.
information and gives them an opportunity of
1) What grounds may Nova’s cause of
presenting written or oral statements. The Court's
action against America be based?
advisory procedure is otherwise modelled on that
2) On what grounds may America move to
for contentious proceedings, and the sources of
dismiss the case with the ICJ?
applicable law are the same. In principle the
3) Decide the case. (1994 Bar)
Court's advisory opinions are consultative in
character and are therefore not binding as such on
A: 1) If Nova and America are members of the UN,
the requesting bodies. Certain instruments or
Nova can premise its cause of action on a
regulations can, however, provide in advance that
violation of Art. 2(4) of the UN Charter, which
the advisory opinion shall be binding.
requires members to refrain from threat or use of
force against the territorial integrity of political
• Only organizations can request independence of any state. If either or both
advisory opinions [Article 65(1)]: The Court America and Nova are not members of the UN,
may give an advisory opinion on any legal Nova may premise its cause of action of violation
question at the request of whatever body of the non-use of force principle in customary
may be authorized by or in accordance with international law which exist parallel as to Art.
the Charter of the UN to make such a 2(4) of the UN Charter.
request.
In the case concerning the Military and
• There is no rule of stare decisis. Parliamentary activities in and against Nicaragua
(1986 ICJ Report 14), the International Court of
Q: A, a citizen of State X, was arrested and Justice considered the planting mines by one
detained for several years without charges or state within the territorial waters of another as a
trial. He brings his case to the courts of State violation of Art. 2(4) of the UN Charter. If the
X, but to no avail. He desires to seek redress support provided by America to rebels of Nova
from any international forum. He goes to you goes beyond the mere giving of monetary or
as counsel to file his case with the International psychological support but consist in the provision
Court of Justice. Will the action prosper? of arms and training, the acts of America can be
(1978 Bar) considered as indirect aggression amount to
A: No! Only States may be parties in contentious another violation of Art. 2(4).
cases before the International Court of Justice. In
36 PUBLIC INTERNATIONAL LAW 2008
In addition, even if the provision of support is not Art. 16 of the Statute of ICJ, no member of the
enough to consider the act a violation of the non- Court may appear as agent in any case. Notes:
use of force principle, this is a violation of the 3) Under Art. 39 of the Statute of ICJ, the official
principle of non-intervention in customary languages of the Court are English and French. In
international law. the absence of an agreement, each party may use
the language it prefers. At the request of any
Aggression is the use of armed force by a state party, the Court may authorize a party to use a
against the sovereignty or territorial integrity or language other than English or French.
political independence of another state or in any 4) Under Art. 51 of the Statute of ICJ, whenever
other manner inconsistence with the UN Charter. one of the parties does not appear before the
court or fails to defends its case, the other party
2) By virtue of the principle of sovereign may ask the Court to decide in favor of its claim.
immunity, no sovereign state can be made a party However, the Court must, before doing so, satisfy
to a proceeding before the ICJ unless it has given itself that it has jurisdiction and that the claim is
its consent. If America has not accepted the well-founded in fact and in law.
jurisdiction of the ICJ, it can invoke the defense
of lack of jurisdiction. Even if it has accepted the PIMENTEL, JR., v. OFFICE OF THE EXECUTIVE
jurisdiction of the ICJ but the acceptance limited SECRETARY
and the limitation applies to the case, it may 462 SCRA 622, 6 July 2005
invoke such limitations of its consent as a bar to En Banc, Garcia J.
the assumption of jurisdiction.
If the jurisdiction has been accepted, America can This is a petition for mandamus to compel the
involve the principle of anticipatory self-defense Office of the Executive Secretary and the
recognized under customary international law Department of Foreign Affairs to transmit the
because Nova is planning to launch an attack signed copy of the Rome Statute of the
against America by using the arms it brought from International Criminal Court to the Senate of the
Bresia. Philippines for its concurrence in accordance with
§21, Article VII of the 1987 Constitution.
3) If jurisdiction over America is established, the
case should be decided in favor of Nova, because The Rome State of the International Criminal
America violated the principle against the use of Court
force and the principle of non-intervention. The The Rome Statute established the International
defense of anticipatory self-defense cannot be Criminal Court which “shall have the power to
sustained because there is no showing that Nova exercise its jurisdiction over person for the most
had mobilized to such an extent that if America serious crimes of international concern x x x and
were to wait for Nova to strike first it would not shall be complementary to the national criminal
be able to retaliate. jurisdictions.” (Article I, Rome Statute) Its
jurisdiction covers the crime of genocide, crimes
However, if jurisdiction over America is not against humanity, war crimes, and the crime of
established, the case should be decided in its aggression as defined in the Statute (Article 5,
favor because of the principle of sovereign Rome Statute). The Statute was opened for
immunity. signature by all states in Rome on July 17, 1988
and had remained open for signature until
Q: The sovereignty over certain island is December 31, 2000 at the United Nations
disputed between State A and State B. These Headquarters in New York. The Philippines signed
two states agreed to submit their disputes to the Statute on December 28, 2000 through Charge
the ICJ. d’ Affairs Enrique A. Manalo of the Philippine
1) Does the ICJ have the jurisdiction to Mission to the United Nations. Its provisions,
take cognizance of the case? however, require that it be subject to
2) Who shall represent the parties before ratification, acceptance or approval of the
the Court? signatory states (Article 25, Rome Statute).
3) What language shall be used in the
pleading and the oral arguments?
Issues
4) In case State A, the petitioner fails to
appear at the oral argument, can State It is the theory of the petitioners that ratification
B, the respondent, move for the of a treaty, under both domestic law and
dismissal of the action? (1994 Bar) international law, is a function of the Senate.
A: 1) The ICJ has jurisdiction because the parties Hence, it is the duty of the executive department
have jointly submitted the case to it and have to transmit the signed copy of the Rome Statute
thus indicated their consent to its jurisdiction. to the Senate to allow it to exercise its discretion
2) Parties to a case may appoint agents to appear with respect to ratification of treaties. Moreover,
before the ICJ in their behalf, and these agents petitioners submit that the Philippines has a
need not be their own nationals. However, under ministerial duty to ratify the Rome Statute under
treaty law and customary international law.
37 PUBLIC INTERNATIONAL LAW 2008
Petitioners invoke the Vienna Convention on the thereof, since his office confers a right to
Law of Treaties enjoining the states to refrain participate in the exercise of the powers of that Notes:
from acts which would defeat the object and institution.”[Del Mar vs. Philippine Amusement
purpose of a treaty when they have signed the and Gaming Corporation, 346 SCRA 485 (2000)]
treaty prior to ratification unless they have made Thus, legislators have the standing to maintain
their intention clear not to become parties to the inviolate the prerogatives, powers and privileges
treaty (Article 18, Vienna Convention on the Law vested by the Constitution in their office and are
of Treaties). allowed to sue to question the validity of any
official action which they claim infringes their
prerogatives as legislators. The petition at bar
invokes the power of the Senate to grant or
On Locus Standi of Petitioners
withhold its concurrence to a treaty entered into
The petition at bar was filed by Senator Aquilino by the executive branch, in this case, the Rome
Pimentel, Jr. who asserts his legal standing to file Statute. The petition seeks to order the
the suit as member of the Senate; Congresswoman executive branch to transmit the copy of the
Loretta Ann Rosales, a member of the House of treaty to the Senate to allow it to exercise such
Representatives and Chairperson of its Committee authority. Senator Pimentel, as member of the
on Human Rights; the Philippine Coalition for the institution, certainly has the legal standing to
Establishment of the International Criminal Court assert such authority of the Senate.
which is composed of individuals and corporate
entities dedicated to the Philippine ratification of
the Rome Statute; the Task Force Detainees of The Substantive Issue
the Philippines, a juridical entity with the avowed The core issue in this petition for mandamus is
purpose of promoting the cause of human rights whether the Executive Secretary and the
and human rights victims in the country; the Department of Foreign Affairs have a ministerial
Families of Victims of Involuntary Disappearances, duty to transmit to the Senate the copy of the
a juridical entity duly organized and existing Rome Statute signed by a member of the
pursuant to Philippine Laws with the avowed Philippine Mission to the United Nations even
purpose of promoting the cause of families and without the signature of the President.
victims of human rights violations in the country;
Bianca Hacintha Roque and Harrison Jacob Roque, We rule in the negative.
aged two (2) and one (1), respectively, at the
time of filing of the instant petition, and suing In our system of government, the President, being
under the doctrine of inter-generational rights the head of state, is regarded as the sole organ
enunciated in the case of Oposa vs. Factoran, Jr. and authority in external relations and is the
224 SCRA 792 (1993) and a group of fifth year country’s sole representative with foreign
working law students from the University of the nations(Cortes, The Philippine Presidency: A
Philippines College of Law who are suing as Study of Executive Power (1966), p. 187) As the
taxpayers. chief architect of foreign policy, the President
acts as the country’s mouthpiece with respect to
Xxx international affairs. Hence, the President is
vested with the authority to deal with foreign
We find that among the petitioners, only Senator states and governments, extend or withhold
Pimentel has the legal standing to file the instant recognition, maintain diplomatic relations, enter
suit. The other petitioners maintain their into treaties, and otherwise transact the business
standing as advocates and defenders of human of foreign relations [Cruz, Philippine Political Law
rights, and as citizens of the country. They have (1996 Ed.), p. 223] . In the realm of treaty-
not shown, however, that they have sustained or making, the President has the sole authority to
will sustain a direct injury from the non- negotiate with other states.
transmittal of the signed text of the Rome Statute
to the Senate. Their contention that they will be Nonetheless, while the President has the sole
deprived of their remedies for the protection and authority to negotiate and enter into treaties, the
enforcement of their rights does not persuade. Constitution provides a limitation to his power by
The Rome Statute is intended to complement requiring the concurrence of 2/3 of all the
national criminal laws and courts. Sufficient members of the Senate for the validity of the
remedies are available under our national laws to treaty entered into by him. xxx
protect our citizens against human rights
violations and petitioners can always seek redress The participation of the legislative branch in the
for any abuse in our domestic courts. treaty-making process was deemed essential to
provide a check on the executive in the field of
As regards Senator Pimentel, it has been held that foreign relations (Cortes, supra note 12, p. 189).
“to the extent the powers of Congress are By requiring the concurrence of the legislature in
impaired, so is the power of each member the treaties entered into by the President, the
38 PUBLIC INTERNATIONAL LAW 2008
Constitution ensures a healthy system of checks to the scrutiny and consent of a department of
and balance necessary in the nation’s pursuit of the government other than that which Notes:
political maturity and growth [Bayan vs. Zamora, negotiated them.
342 SCRA 449 (2000)].
xxx
In filing this petition, the petitioners interpret
Section 21, Article VII of the 1987 Constitution to The last step in the treaty-making process is the
mean that the power to ratify treaties belongs to exchange of the instruments of ratification,
the Senate. which usually also signifies the effectivity of the
treaty unless a different date has been agreed
We disagree. upon by the parties. Where ratification is
dispensed with and no effectivity clause is
Justice Isagani Cruz, in his book on International embodied in the treaty, the instrument is deemed
Law, describes the treaty-making process in this effective upon its signature [Cruz, International
wise: Law (1998 Ed.), pp. 172-174]. [emphasis supplied]
The usual steps in the treaty-making process are: Petitioners’ arguments equate the signing of the
negotiation, signature, ratification, and exchange treaty by the Philippine representative with
of the instruments of ratification. The treaty may ratification. It should be underscored that the
then be submitted for registration and publication signing of the treaty and the ratification are two
under the U.N. Charter, although this step is not separate and distinct steps in the treaty-making
essential to the validity of the agreement as process. As earlier discussed, the signature is
between the parties. primarily intended as a means of authenticating
the instrument and as a symbol of the good faith
of the parties. It is usually performed by the
Negotiation may be undertaken directly by the state’s authorized representative in the
head of state but he now usually assigns this task diplomatic mission. Ratification, on the other
to his authorized representatives. These hand, is the formal act by which a state confirms
representatives are provided with credentials and accepts the provisions of a treaty concluded
known as full powers, which they exhibit to the by its representative. It is generally held to be an
other negotiators at the start of the formal executive act, undertaken by the head of the
discussions. It is standard practice for one of the state or of the government (Bayan vs. Zamora,
parties to submit a draft of the proposed treaty supra note 15). Thus, Executive Order No. 459
which, together with the counter-proposals, issued by President Fidel V. Ramos on November
becomes the basis of the subsequent 25, 1997 provides the guidelines in the
negotiations. The negotiations may be brief or negotiation of international agreements and its
protracted, depending on the issues involved, and ratification. It mandates that after the treaty has
may even “collapse” in case the parties are been signed by the Philippine representative, the
unable to come to an agreement on the points same shall be transmitted to the Department of
under consideration. Foreign Affairs. The Department of Foreign
Affairs shall then prepare the ratification papers
If and when the negotiators finally decide on the and forward the signed copy of the treaty to the
terms of the treaty, the same is opened for President for ratification. After the President
signature. This step is primarily intended as a has ratified the treaty, the Department of Foreign
means of authenticating the instrument and for Affairs shall submit the same to the Senate for
the purpose of symbolizing the good faith of the concurrence. Upon receipt of the concurrence of
parties; but, significantly, it does not indicate the Senate, the Department of Foreign Affairs
the final consent of the state in cases where shall comply with the provisions of the treaty to
ratification of the treaty is required. The render it effective. xxx
document is ordinarily signed in accordance with
the alternat, that is, each of the several Xxx
negotiators is allowed to sign first on the copy
which he will bring home to his own state.
Petitioners’ submission that the Philippines is
bound under treaty law and international law to
Ratification, which is the next step, is the formal ratify the treaty which it has signed is without
act by which a state confirms and accepts the basis. The signature does not signify the final
provisions of a treaty concluded by its consent of the state to the treaty. It is the
representatives. The purpose of ratification is ratification that binds the state to the provisions
to enable the contracting states to examine the thereof. In fact, the Rome Statute itself requires
treaty more closely and to give them an that the signature of the representatives of the
opportunity to refuse to be bound by it should states be subject to ratification, acceptance or
they find it inimical to their interests. It is for approval of the signatory states. Ratification is
this reason that most treaties are made subject
39 PUBLIC INTERNATIONAL LAW 2008
According to the case of Holy See vs. Rosario, in A: The Court of Appeals should dismiss the
Public International Law, when a state wishes to petition in so far as it seeks to annul the order Notes:
plead sovereign immunity in a foreign court, it denying the motion of the Government of
requests the Foreign office of the state where it is Indonesia to dismiss the counterclaim. The
being sued to convey to the court that it is counterclaim in this case is a compulsory
entitled to immunity. In the Philippines, the counterclaim since it arises from the same
practice is for the foreign government to first contract involved in the complaint. As such, it
secure an executive endorsement of its claim of must be set up, otherwise, it will be barred.
immunity. In some case, the defense of sovereign Above all, as held in Froilan vs. Pan Oriental
immunity is submitted directly to the local court Shipping Co. 95 Phil 905, by filing a complaint,
by the foreign state through counsel by filing a the state of Indonesia waived its immunity from
motion to dismiss on the ground that the court has suit. It is not right that it can sue in the courts of
no jurisdiction over its person. the Philippines if in the first place it cannot be
sued. The defendant therefore acquires the right
b) No. The sale of Balau products as a contract to set up a compulsory counterclaim against it.
involves a commercial activity. As held by the
Supreme Court in the case of USA vs. Ruiz and USA However, The Court of Appeals should grant the
vs. Guinto, it was stated that a foreign state petition of the Indonesian Government insofar as
couldn’t invoke immunity from suit if it enters it sought to annul the garnishment of the funds of
into a commercial contract. The Philippines Indonesia, which were deposited in the PNB and
adheres to restrictive Sovereign Immunity. BPI.
In February 1990, the Ministry of the Army, Consent to the exercise of jurisdiction of a foreign
Republic of Indonesia, invited for a bid for the court does not involve waiver of the separate
supply of 500,000 pairs of combat boots for the immunity from execution. (You can look but you
use of the Indonesian Army. The Marikina Shoe can’t touch.)
Corporation, a Philippine Corporation, which
has a branch office and with no assets in Thus as held in the case of Dexter vs. Carpenters,
Indonesia, submitted a bid to supply 500,000 P2d 705, it was held that consent to be sued does
pairs of combat boots at $30 per pair delivered not give consent to the attachment of the
in Jakarta on or before October 1990. The property of sovereign government.
contract was awarded by the Ministry of the
Army to Marikina Shoe Corporation and was Exemptions from Jurisdiction
signed by the parties in Jakarta. Marikina Shoe 1. Doctrine of State Immunity;
Expo was able to deliver only 200,000 pairs of 2. Act of State Doctrine – court of one state will
combat boots in Jakarta by October 30, 1990 not sit in judgment over acts of government
and received payment for 100,000 pairs or a of another state done in its territory.
total of $3,000,000. The Ministry of the Army 3. Diplomatic Immunity;
promised to pay for the other 100,000 pairs 4. Immunity of UN Specialized agencies, other
already delivered as soon as the remaining International Organizations, and its Officers;
300,000 pairs of combat boots are delivered, at 5. Foreign Merchant vessels exercising the right
which time the said 300,000 pairs will also be of innocent passage;
paid for. 6. Foreign armies passing through or stationed in
the territory with the permission of the State;
Q: Marikina Shoe Corporation failed to deliver 7. Warships and other public vessels of another
any more combat boots. On June 1, 1991, the State operated for non-commercial purposes.
Republic of Indonesia filed an action before the
RTC of Pasig, to compel Marikina Shoe ACT OF STATE DOCTRINE
Corporation to perform the balance of its Q: What is an Act of State?
obligation under the contract and for damages. A: An act of state is an act done by the sovereign
In its Answer, Marikina Shoe Corporation sets up power of a country, or by its delegate, within the
a counterclaim for $3,000,000 representing the limits of the power vested in him. An act of State
payment for the 100,000 pairs of combat boots cannot be questioned or made the subject of legal
already delivered but unpaid. Indonesia moved proceedings in court of law. Courts cannot
to dismiss the counterclaim asserting that it is pass judgment on acts of State done within its
entitled to sovereign immunity from suit. The territorial jurisdiction. It is different from
trial court denied the motion to dismiss and Sovereign Immunity from Suit. Here, you cannot
issued two writs of garnishment upon sue a sovereign State in the courts of another
Indonesian Government funds deposited in the State.
PNB and BPI. Indonesia went to the Court of
Appeals on a petition for certiorari under Rule Q: Why?
65 of the Rules of Court. How would the Court A: Would unduly vex the peace of nations based
of Appeals decide the case? (1991 Bar) on the doctrine of sovereign equality of States –
“Par in parem non habet imperium”
42 PUBLIC INTERNATIONAL LAW 2008
Diplomatic Corps
Q: What is the meaning or concept of “Act of A body formed by all diplomatic envoys Notes:
State” Doctrine? (1977 Bar) accredited to the same State. The Doyen or head
A: The Act of State Doctrine states that every of this body is usually the Papal Nuncio, or the
sovereign state is bound to respect the oldest accredited ambassador or plenipotentiary.
independence of other states and the court of one
country will not sit in judgment to the acts of the Privileges and immunities
foreign government done within its territory. a. Personal inviolability;
Redress of grievances by reason of such acts must b. Inviolability of premises and archives;
be obtained through the means open to be availed c. Right of an official communication;
of by sovereign powers as between themselves. d. Exemption from local jurisdiction;
e. Exemption from subpoena as witness;
DIPLOMATIC IMMUNITY f. Exemption from taxation
THE RIGHT OF LEGATION
It is the right to send and receive diplomatic Q: Who are the usual agents of diplomatic
missions. It is strictly not a right since no State intercourse?
can be compelled to enter into diplomatic A: The diplomatic relations of a state are usually
relations with another State. Diplomatic relations conducted through:
is established by mutual consent between two i. The head of state;
States. ii. The foreign secretary or minister; and
iii. The members of the diplomatic service.
Q: Is the state obliged to maintain diplomatic
relations with other states? Sometimes the state may appoint special
A: No, as the right of legation is purely diplomatic agents charged with either political or
consensual. If it wants to, a state may shut itself ceremonial duties, such as the negotiation of a
from the rest of the world, as Japan did until the treaty or attendance at a state function like a
close of the 19th century. However, a policy of coronation or a funeral.
isolation would hinder the progress of a state
since it would be denying itself of the many Q: How are the regular diplomatic
benefits available from the international representatives classified?
community. A:
i. Ambassadors or nuncios accredited to
Active right of legation – send diplomatic heads of states
representatives
ii. Envoys, ministers and internuncios
Passive right of legation – receive diplomatic accredited to heads of states
representatives
iii. Charges d’ affaires accredited to ministers
Resident Missions for foreign affairs
Classes of heads of missions [ A N E M I C ]
The diplomatic corps consists of different
a. Ambassadors or nuncios accredited to diplomatic representatives who have been
Heads of State and other heads of missions of
accredited to the local or receiving state. A doyen
equivalent rank; du corps or a dean, who is usually the member of
b. Envoys ministers and internuncios the highest rank and the longest service to the
accredited to Heads of State; state, heads it.
c. Charges d’affaires accredited to
Ministers for Foreign Affairs. In Catholic countries, the dean is the Papal
Nuncio.
Functions of Diplomatic Missions
1. representing sending state in receiving state; Q: How are diplomatic representatives chosen?
2. protecting in receiving state interests of A: The appointment of diplomats is not merely a
sending state and its nationals; matter of municipal law for the receiving state is
3. negotiating with government of receiving not obliged to accept a representative who is a
state; persona non grata to it. Indeed, there have been
4. promoting friendly relations between sending cases when duly accredited diplomatic
and receiving states and developing their representatives have been rejected, resulting in
economic, cultural and scientific relations; strained relations between the sending and
5. ascertaining by all lawful means conditions receiving state.
and developments in receiving state and
reporting thereon to government of sending To avoid such awkward situation, most states now
state; and observe the practice of agreation, by means of
6. in some cases, representing friendly which inquiries are addressed to the receiving
governments at their request. state regarding a proposed diplomatic
representative of the sending state. It is only
43 PUBLIC INTERNATIONAL LAW 2008
when the receiving state manifests its agreement receiving state shall treat him
or consent that the diplomatic representative is with due respect and shall take Notes:
appointed and formally accredited. all appropriate steps to prevent
any attack on his person,
Q: What is agreation? freedom or dignity.
A: It is a practice of the states before appointing
a particular individual to be the chief of their b) A diplomatic agent shall enjoy
diplomatic mission in order to avoid possible immunity from the criminal,
embarrassment. It consist of two acts: civil and administrative
i. The Inquiry, usually informal, jurisdiction of the receiving
state, except in certain cases
addressed by the sending state to the
as, for example, when the civil
receiving state regarding the acceptability of
action deals with property held
an individual to be its chief of mission; and
by him in a private or
ii. The agreement, also informal,
proprietary capacity.
by which the receiving state indicates to the
sending state that such person, would be
acceptable. c) The diplomatic premises shall be
inviolable, and the agents of the
Letter of Credence (Letre d’ Creance) receiving state may not enter
The document, which the envoy receives from his them without the consent of the
government accrediting him to the foreign state head of the mission. Such
to which he is being sent. It designates his rank premises, their furnishings and
and the general object of his mission and asks other property thereon and the
that he be received favorably and that full means of transportation of the
credence be given to what he says on behalf of his mission shall be immune from
state. search, requisition, attachment
or execution. (See movie “Red
Letter Patent (Letre d’ Provision) Corner” starring Richard Gere).
The appointment of a consul is usually evidenced
by a commission, known sometimes as letter d) The archives and documents of
patent or letre d’ provision, issued by the the mission shall be inviolable at
appointing authority of the sending state and any time and wherever they may
transmitted to the receiving state through be.
diplomatic channels.
e) The receiving state shall permit
Functions of diplomatic representatives and protect free communication
The functions of diplomatic mission consist inter on the part of the mission for all
alia in: official purposes. In
a) Representing the sending state communicating with the
in the receiving state. government and other missions,
b) Protecting in the receiving state and consulates of the sending
the interests of the sending state and its state wherever situated, the
nationals. mission may employ all
c) Negotiating with the appropriate means, including
government of the receiving state. diplomatic couriers and
d) Ascertainment through lawful messages in code or cipher. The
means of the conditions and developments in official correspondence of the
the receiving state and reporting thereon to mission shall be inviolable.
the government of the sending state.
e) Promoting friendly relations f) Subject to its laws and
between the sending and receiving state and regulations concerning national
developing their economic, cultural and security, the receiving state
scientific relations. shall insure to all members of
f) In some cases, representing the mission freedom of
friendly governments at their request. movement and travel in its
territory.
Pointers on Diplomatic Immunities and
Privileges g) A diplomatic agent is not
The more important are the following: obliged to give evidence as a
witness.
a) The person of a diplomatic
agent shall be inviolable and he h) A diplomatic agent shall be
shall not be liable to any form of exempt from all dues and taxes,
arrest or detention. The personal or real, national,
44 PUBLIC INTERNATIONAL LAW 2008
receiving state is under obligation to facilitate the They look mainly after the commercial interest of
acquisition on its territory, in accordance with its their own state in the territory of a foreign state. Notes:
laws, by the sending state of premises necessary
for its mission, or to assist the latter in obtaining They are not clothed with diplomatic character
accommodation in some other way. Therefore, and are not accredited to the government of the
the refusal of the Register of Deeds to register the country where they exercised their consular
sale and the issuance of TCT in the name of state functions; they deal directly with local
X is unjustified. authorities.
of the receiving state, unless he holds it on behalf of the sending state for the purpose
behalf of the sending state for the purpose of of the mission. Notes:
the mission;
The action against the ambassador is a real action
b) An action relating to succession involving private immovable property situated
in which the diplomatic agent is involved as within the territory of the Philippines as the
executor, administrator, heir or legatee as receiving state. The action falls within the
private person and not on behalf of the exception to the grant of immunity from the civil
sending state; and administrative jurisdiction of the Philippines.
It ought to follow that the RP-US Extradition a) There is no legal obligation to surrender a
Treaty calls for an interpretation that will fugitive unless there is a treaty. Notes:
minimize if not prevent the escape of extraditees b) Religious and political offenses are generally
from the long arm of the law and expedite their not extraditable.
trial. X x x c) A person extradited can be prosecuted by the
requesting state only for the crime for which
[A]n equally compelling factor to consider is the he was extradited; and
understanding of the parties themselves to the d) Unless provided for in a treaty, the crime for
RP-US Extradition Treaty as well as the general which a person is extradited must have been
interpretation of the issue in question by other committed in the territory of the requesting
countries with similar treaties with the state.
Philippines. The rule is recognized that while
courts have the power to interpret treaties, the Q: John is a former President of the Republic X,
meaning given them by the departments of bent on regaining power which he lost to
government particularly charged with their President Harry in an election. Fully convinced
negotiation and enforcement is accorded great that he was cheated, he set out to destabilize
weight. The reason for the rule is laid down in the government of President Harry by means of
Santos III v. Northwest Orient Airlines, et al. (210 a series of protest actions. His plan was to
SCRA 256, 261 [1992]), where we stressed that a weaken the government and when the situation
treaty is a joint executive-legislative act which became ripe for a take-over, to assassinate
enjoys the presumption that “it was first carefully President Harry.
studied and determined to be constitutional
before it was adopted and given the force of law William, on the other hand, is a believer in
in the country.” (Secretary of Justice v. Hon. human rights and a former follower of President
Ralph C. Lantion, G.R. No. 139465, Oct. 17, 2000, Harry. Noting the systematic acts of harassment
En Banc [Puno]) committed by government agents against
farmers protesting the seizure of their lands,
Q: What is the difference, if any, between laborers complaining of low wages, and students
extradition and deportation? (1995 Bar) seeking free tuition, William organized groups
A: which held peaceful rallies in front of the
Presidential Palace to express their grievances.
BASIS EXTRADITION DEPORTATION
Nature Normally Even if no crime On the eve of the assassination attempt, John’s
committed with was committed as men were caught by member of the Presidential
criminal long as the alien Security Group. President Harry went on air
offenses in the is extraditable threatening to prosecute plotters and dissidents
territory of the of his administration. The next day, the
requesting state government charged John with assassination
attempt and William with inciting to sedition.
Benefit Effected for the Effected for the
benefit of the protection of the John fled to Republic A. William, who was in
state to which state expelling an Republic B attending a lecture on democracy,
the person being alien because his was advised by his friends to stay in Republic B.
extradited will presence is
be surrendered inimical to public Both Republic A and Republic B have
because he is a good conventional extradition treaties with Republic
fugitive criminal X.
in that state
If Republic X requests the extradition of John
How? Effected on the The unilateral act and William, can Republic A deny the request?
basis of an of the state Why? State your reason fully. (2002 Bar)
extradition expelling the
treaty or upon alien A: Republic A can refuse to extradite John,
the request of because his offense is a political offense. John
another state was plotting to take over the government and the
plan of John to assassinate President Harry was
Where? The alien will be The undesirable part of such plan. However, if the extradition
surrendered to alien may be sent treaty contains an attentat clause, Republic A can
the state asking to any state extradite John because under the attentat clause,
for his willing to accept the taking of the life or attempt against the life of
extradition him a head of state or that of the members of his
family does not constitute a political offense and
is therefore extraditable.
Fundamental Principles Governing Extradition:
52 PUBLIC INTERNATIONAL LAW 2008
Alternative A: Republic A may or can refuse the Philippines and Canada, under the Treaty of
request of extradition of William because he is extradition between the Philippines and Canada, Notes:
not in its territory and thus it is not in the position the Philippines can request Canada to extradite
to deliver him to Republic X. Filipino who has fled to Canada.
Even if William were in the territorial jurisdiction Q: Patrick is charged with illegal recruitment
of Republic A, he may not be extradited because and estafa before the RTC of Manila. He
inciting to sedition, of which he is charged, jumped bail and managed to escape to America.
constitutes a political offense. It is a standard Assume that there is an extradition treaty
provision of extradition treaties, such as the one between the Philippines and America and it
between Republic A and Republic X, that political does not include illegal recruitment as one of
offenses are not extraditable. the extraditable offenses. Upon surrender of
Patrick by the US Government to the
Alternative A: Republic B can deny the request Philippines, Patrick protested that he could not
the request of Republic X to extradite William, be tried for illegal recruitment. Decide. (1998
because his offense was not a political offense. Bar)
On the basis of the predominance of A: Under the principle of specialty in extradition,
proportionality test, his acts were not directly Patrick cannot be tried for illegal recruitment
connected to any purely political offense. since this is not included in the list of extraditable
offenses in the extradition treaty between the
Q: On November 1, 1976, A, B, C and D, self Philippines and the United States, unless the
styled Moro rebels long wanted by the United States does not object to the trial of
authorities for the fatal ambuscade of a bus Patrick for illegal recruitment.
load of innocent civilians, hijacked a PAL lane
on its Manila-Davao flight which they forcibly Q: The Extradition Treaty between France and
diverted to, and landed in Jakarta Indonesia. In the Philippines is silent as to applicability with
that country, A, B, C and D sought political respect to crimes committed prior to its
asylum, invoking the UN Declaration on Human effectivity.
Rights. Reacting, the Philippine Government, a) Can France demand the extradition of A, a
through proper diplomatic channels sought after French national residing in the Philippines,
their extradition. May Indonesia grant asylum for an offense committed in France prior to
or should it extradite A, B, C and D to the the effectivity of the treaty? Explain.
Philippines. (1976 Bar) b) Can A contest his extradition on the ground
that it violates the ex post facto provision
Q: Sergio Osmeña III and Eugenio Lopez Jr. both in the Philippine Constitution? Explain.
charged with attempted assassination of (1996 Bar)
President Marcos before the military tribunal, A: a) In Clough vs. Strakesh, 109 Fed 330, it was
escaped from military custody, flew to Hong held that an extradition treaty applies to Crimes
Kong and then to California USA where they are committed before its effectivity unless the
reportedly seeking political asylum. There is no extradition treaty expressly exempts them. As
extradition treaty however between the Whiteman points out, extradition does not define
Philippines and the United States.Assuming that crimes but merely provides a means by which a
the Philippine Government desires the state may obtain the return and punishment of
surrender of the above-named fugitives to the persons charged with or convicted of having
Philippines to face trial before the military committed a crime who fled the jurisdiction of
tribunal, how can this be legally done under the state whose law has been violated. It is
International Law? (1978 Bar) therefore immaterial whether at the time of the
A: The Philippines may only request and cannot commission of the crime for which extradition is
demand the surrender of the two fugitives. As sought no treaty was in existence. If at the time
territorial sovereign, the United States is not of extradition is requested there is in force
obliged to return them but may decide to do so between the requesting and the requested state a
for reasons of comity. This is likely, however, treaty covering the offense on which the request
because the escapees are sought for political is based, the treaty is applicable.
offense and can claim the right of asylum under
the Universal Declaration of Human Rights. b) No, as held in WRIGHT vs. CA, 295 SCRA 341,
the prohibition against ex post facto laws in
Q: Explain, using example, the principle of Section 22 of Article III of the Constitution applies
Double Criminality. (1991 Bar) to penal laws only and does not apply to
A: The principle of double criminality is the rule extradition treaties.
in extradition which states that for a request to
be honored, the crime for which the extradition is Extradition of War Criminals and Terrorists
requested must be a crime in both the requesting (Violators of crimes against international law)
state and the state to which the fugitive fled. For As violators of crimes against international law,
example, since murder is a crime both in the war criminals are subject to extradition in 1946,
53 PUBLIC INTERNATIONAL LAW 2008
future date would give them ample opportunity to At most, in cases of clear insufficiency of
prepare and execute an escape. Neither the evidence on record, judges merely further Notes:
Treaty nor the Law could have intended that examine complainants and their witnesses. In the
consequence, for the very purpose of both would present case validating the act of respondent
have been defeated by the escape of the accused judge and instituting the practice of hearing the
from the requested state. accused and his witnesses at this early stage
would be discordant with the rationale for the
entire system. If the accused were allowed to be
heard and necessarily to present evidence during
B. On the Basis of the Constitution the prima facie determination for the issuance of
a warrant of arrest, what would stop him from
Even Section 2 of Article III of our Constitution, presenting his entire plethora of defenses at this
which is invoked by Jimenez, does not require a stage -- if he so desires -- in his effort to negate
notice or a hearing before the issuance of a a prima facie finding? Such a procedure could
warrant of arrest. It provides: convert the determination of a prima facie case
into a full-blown trial of the entire proceedings
“Sec. 2 - The right of the people to be secure and possibly make trial of the main case
in their persons, houses, papers, and effects superfluous. This scenario is also anathema to the
against unreasonable searches and seizures and summary nature of extraditions.
seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or That the case under consideration is an
warrant of arrest shall issue except upon extradition and not a criminal action is not
probable cause to be determined personally by sufficient to justify the adoption of a set of
the judge after examination under oath or procedures more protective of the accused. If a
affirmation of the complainant and the different procedure were called for at all, a more
witnesses he may produce, and particularly restrictive one – not the opposite – would be
describing the place to be searched and the justified in view of respondent’s demonstrated
persons or things to be seized.” predisposition to flee.
To determine probable cause for the issuance of Q: Is respondent Mark Jimenez entitled to bail
arrest warrants, the Constitution itself requires during the pendency of the Extradition
only the examination - under oath or affirmation Proceeding?
- of complainants and the witnesses they may A: We agree with petitioner: As suggested by the
produce. There is no requirement to notify and use of the word “conviction,” the constitutional
hear the accused before the issuance of warrants provision on bail quoted above, as well as Section
of arrest. 4 of Rule 114 pf the Rules of Court, applies only
when a person has been arrested and detained for
In Ho vs. People and in all the cases cited therein, violation of Philippine criminal laws. It does not
never was a judge required to go to the extent of apply to extradition proceedings, because
conducting a hearing just for the purpose of extradition courts do not render judgments of
personally determining probable cause for the conviction or acquittal.
issuance of a warrant of arrest. All we required
was that the “judge must have sufficient Moreover, the constitutional right to bail “flows
supporting documents upon which to make his from the presumption of innocence in favor of
independent judgment, or at the very least, upon every accused who should not be subjected to the
which to verify the findings of the prosecutor as loss of freedom as thereafter he would be entitled
to the existence of probable cause.” to acquittal, unless his guilt be proved beyond
reasonable doubt.
In Webb vs. De Leon, the Court categorically
stated that a judge was not supposed to conduct a It follows that the constitutional provision on bail
hearing before issuing a warrant of arrest: will not apply to a case like extradition, where
the presumption of innocence is not at issue.
“Again, we stress that before issuing
warrants of arrest, judges merely The provision in the Constitution stating that the
determine personally the probability, not “right to bail shall not be impaired even when the
the certainty of guilt of an accused. In privilege of the writ of habeas corpus is
doing so, judges do not conduct a de novo suspended” does not detract from the rule that
hearing to determine the existence of the constitutional right to bail is available only in
probable cause. They just personally review criminal proceedings. It must be noted that the
the initial determination of the prosecutor suspension of the privilege of the writ of habeas
finding a probable cause to see if it is corpus finds application “only to persons judicially
supported by substantial evidence.” charged for rebellion or offenses inherent in or
directly connected with invasion.” Hence, the
second sentence in the constitutional provision on
56 PUBLIC INTERNATIONAL LAW 2008
bail merely emphasizes the right to bail in process now has thus become hollow. He already
criminal proceedings for the aforementioned had that opportunity in the requesting state; yet Notes:
offenses. It cannot be taken to mean that the instead of taking it, he ran away.
right is available even in extradition proceedings
In this light, would it be proper and just for the
that are not criminal in nature.
government to increase the risk of violating its
treaty obligations in order to accord Respondent
That the offenses for which Jimenez is sought to
be extradited are bailable in the United States is Jimenez his personal liberty in the span of time
that it takes to resolve the Petition for
not an argument to grant him one in the present
case. To stress, extradition proceedings are Extradition? His supposed immediate deprivation
of liberty without the due process that he had
separate and distinct from the trial for the
offenses for which he is charged. He should apply previously shunned pales against the
government’s interest in fulfilling its Extradition
for bail before the courts trying the criminal cases
against him, not before the extradition court. Treaty obligations and in cooperating with the
world community in the suppression of crime.
Q: Will Mark Jimenez detention prior to the Indeed, “constitutional liberties do not exist in a
vacuum; the due process rights accorded to
conclusion of the extradition proceedings not
amount of his right to due process? individuals must be carefully balanced against
exigent and palpable government interests.”
A: Contrary to his contention, his detention prior
to the conclusion of the extradition proceedings
Too, we cannot allow our country to be a haven
does not amount to a violation of his right to due
process. We reiterate the familiar doctrine that for fugitives, cowards and weaklings who, instead
of facing the consequences of their actions,
the essence of due process is the opportunity to
be heard but, at the same time, point out that choose to run and hide. Hence, it would not be
good policy to increase the risk of violating our
the doctrine does not always call for a prior
opportunity to be heard. Where the treaty obligations if, through overprotection or
excessively liberal treatment, persons sought to
circumstances—such as those present in an
extradition case – call for it, a subsequent be extradited are able to evade arrest or escape
from our custody. In the absence of any provision
opportunity to be heard is enough. In the present
case, respondent will be given full opportunity to - in the Constitution, the law or the treaty -
expressly guaranteeing the right to bail in
be heard subsequently, when the extradition
court hears the Petition for Extradition. Hence, extradition proceedings, adopting the practice of
not granting them bail, as a general rule, would
there is no violation of his right to due process
and fundamental fairness. be a step towards deterring fugitives from coming
to the Philippines to hide from or evade their
Contrary to the contention of Jimenez, we find no prosecutors.
arbitrariness, either, in the immediate
deprivation of his liberty prior to his being heard. The denial of bail as a matter of course in
extradition cases falls into place with and gives
That his arrest and detention will not be arbitrary
is sufficiently ensured by: life to Article 14 of the Treaty, since this practice
would encourage the accused to voluntarily
1) The DOJ’s filing in court of the Petition surrender to the requesting state to cut short
their detention here. Likewise, their detention
with its supporting documents after a
determination that the extradition request pending the resolution of extradition proceedings
would fall into place with the emphasis of the
meets the requirements of the law and the
relevant treaty; Extradition Law on the summary nature of
extradition cases and the need for their speedy
disposition.
2) The extradition judge’s independent
prima facie determination that his arrest will Q: What are the exceptions to the “No Bail”
best serve the ends of justice before the Rule in Extradition Proceedings?
issuance of a warrant for his arrest; and A: The rule, we repeat, is that bail is not a matter
of right in extradition cases.
3) His opportunity, once he is under the
court’s custody, to apply for bail as an However, the judiciary has the constitutional duty
exception to the no-initial-bail rule. to curb grave abuse of discretion and tyranny, as
well as the power to promulgate rules to protect
It is also worth noting that before the US and enforce constitutional rights. Furthermore,
government requested the extradition of we believe that the right to due process is broad
respondent, proceedings had already been enough to include the grant of basic fairness to
conducted in that country. But because he left extraditees. Indeed, the right to due process
the jurisdiction of the requesting state before extends to the “life, liberty or property” of every
those proceedings could be completed, it was person. It is “dynamic and resilient, adaptable to
hindered from continuing with the due processes every situation calling for its application.”
prescribed under its laws. His invocation of due
57 PUBLIC INTERNATIONAL LAW 2008
Accordingly and to best serve the ends of justice, the United States was requesting extradition.
we believe and so hold that, after a potential Hence, his constituents were or should have been Notes:
extraditee has been arrested or placed under the prepared for the consequences of the extradition
custody of the law, bail may be applied for and case against their representative, including his
granted as an exception, only upon a clear and detention pending the final resolution of the case.
convincing showing of the following: Premises considered and in line with Jalosjos, we
are constrained to rule against his claim that his
1) That, once granted bail, the applicant election to public office is by itself a compelling
will not be a flight risk or a danger to the reason to grant him bail.
community; and
2) That there exist special, humanitarian 2. Anticipated Delay
and compelling circumstances including, as a
matter of reciprocity, those cited by the Respondent Jimenez further contends that
highest court in the requesting state when it because the extradition proceedings are lengthy,
grants provisional liberty in extradition case it would be unfair to confine him during the
therein. pendency of the case. Again we are not
3) That, the extraditee will abide with all convinced. We must emphasize that extradition
the orders and processes of the extradition cases are summary in nature. They are resorted
court. to merely to determine whether the extradition
petition and its annexes conform to the
Extradition Treaty, not to determine guilt or
Since this exception has no express or specific innocence. Neither is it, as a rule, intended to
statutory basis, and since it is derived essentially address issues relevant to the constitutional rights
from general principles of justice and fairness, available to the accused in a criminal action. We
the applicant bears the burden of proving the are not overruling the possibility that petitioner
above two-tiered requirement with clarity; may, in bad faith, unduly delay the proceedings.
precision and emphatic forcefulness. This is another matter that is not at issue here.
The Court realizes that extradition is basically an Thus, any further discussion of this point would be
executive; not a judicial, responsibility arising merely anticipatory and academic. However, if
from the presidential power to conduct foreign the delay were due to maneuverings of
relations. In its barest concept, it partakes of the respondent, with all the more reason would the
nature of police assistance amongst states, which grant of bail not be justified. Giving premium to
is not normally a judicial prerogative. delay by considering it as a special circumstance
for the grant of bail would be tantamount to
Hence, any intrusion by the courts into the giving him the power to grant bail to himself. It
exercise of this power should be characterized by would also encourage him to stretch out and
caution, so that the vital international and unreasonably delay the extradition proceedings
bilateral interests of our country will not be even more. This we cannot allow.
unreasonably impeded or compromised. In short,
while this Court is ever protective of “the 3. Not a Flight Risk?
sporting idea of fair play,” it also recognizes the
limits of its own prerogatives and the need to Jimenez further claims that he is not a flight risk.
fulfill international obligations. To support this claim, he stresses that he learned
of the extradition request in June 1999; yet, he
Along this line, Jimenez contends that there are has not fled the country. True, he has not
special circumstances that are compelling enough actually fled during the preliminary stages of the
for the Court to grant his request for provisional request for his extradition. Yet, this fact cannot
release on bail. We have carefully examined be taken to mean that he will not flee as the
these circumstances and shall now discuss them. process moves forward to its conclusion, as he
hears the footsteps of the requesting government
1. Alleged Disenfranchisement inching closer and closer. That he has not yet
fled from the Philippines cannot be taken to mean
While his extradition was pending, Respondent that he will stand his ground and still be within
Jimenez was elected as a member of the House of reach of our government if and when it matters;
Representatives. On that basis, he claims that his that is, upon the resolution of the Petition for
detention will disenfranchise his Manila district of Extradition.
600,000 residents. We are not persuaded. In
People vs. Jalosjos, the Court has already In any event, it is settled that bail may be applied
debunked the disenfranchisement argument xxx. for and granted by the trial court at anytime after
the applicant has been taken into custody and
prior to judgment, even after bail has been
It must be noted that even before private previously denied. In the present case, the
respondent ran for and won a congressional seat extradition court may continue hearing evidence
in Manila, it was already of public knowledge that
58 PUBLIC INTERNATIONAL LAW 2008
on the application for bail, which may be granted her to answer and to appear at scheduled
in accordance with the guidelines in this Decision. hearing on the petition. Notes:
Discuss the Ten Points in 5) After being taken into custody, potential
Extradition proceedings. extraditees may apply for bail. Since the
applicants have a history of absconding,
1) The ultimate purpose of extradition they have the burden of showing that (a)
proceedings is to determine whether the their is no flight risk and no danger to
request expressed in the petition, the community; and (b) there exist a
supported by its annexes and the special, humanitarian or compelling
evidence that may be adduced during the circumstances. The grounds used by the
hearing of the petition, complies with highest court in the requesting state for
the Extradition Treaty and Law and the grant of bail therein may be
whether the person sought is considered, under the principle of
extraditable. The proceedings are reciprocity as a special circumstance.
intended merely to assist the requesting
state in bringing the accused -- or the In extradition cases, bail is not a matter of right;
fugitive who has illegally escaped -- it is subject to judicial discretion in the context of
back to its territory, so that the criminal the peculiar facts of each case.
process may proceed therein.
6) Potential extraditees are entitled to the
2) By entering into an extradition treaty, rights to due process and to fundamental
the Philippines is deemed to have fairness. Due process does not always call for
reposed its trust in the reliability or a prior opportunity to be heard. A
soundness of the legal and judicial subsequent opportunity to be heard is
system of its treaty partner, as well as in sufficient due process to the flight risk
the ability and the willingness of the involved. Indeed, available during the
latter to grant basic rights to the accused hearings on the petition and the answer is the
in the pending criminal case therein. full chance to be heard and to enjoy
fundamental fairness that is compatible with
3) By nature then, extradition the summary nature of extradition.
proceedings are not equivalent to a
criminal case in which guilt or 7) This Court will always remain a protector
innocence is determined. Consequently, of human rights, a bastion of liberty, a
an extradition case is not one in which bulwark of democracy and the conscience of
the constitutional rights of the accused society. But it is also well aware of the
are necessarily available. It is more limitations of its authority and of the need
akin, if at all, to a court’s request to for respect for the prerogatives of the other
police authorities for the arrest of the co-equal and co-independent organs of
accused who is at large or has escaped government.
detention or jumped bail. Having once
escaped the jurisdiction of the 8) We realize that extradition is essentially
requesting state, the reasonable prima an executive, not a judicial, responsibility
facie presumption is that the person arising out of the presidential power to
would escape again if given the conduct foreign relations and to implement
opportunity. treaties. Thus, the Executive Department of
government has broad discretion in its duty
and power of implementation.
4) Immediately upon receipt of the
petition for extradition and its 9) On the other hand, courts merely
supporting documents, the judge shall perform oversight functions and exercise
make a prima facie finding whether the review authority to prevent the exercise of
petition is sufficient in form and in grave abuse and tyranny. They should not
substance, whether it complies with the allow contortions, delays and “over-due
Extradition Treaty and the Law, and process” every little step of the way, lest
whether the person sought is these summary extradition proceedings
extraditable. The magistrate has become not only inutile but also sources of
discretion to require the petitioner to international embarrassment due to our
submit further documentation, or to inability to comply in good faith with a treaty
personally examine the affiants or partner’s simple request to return a fugitive.
witnesses. If convinced that a prima Worse our country should not be converted
facie case exists, the judge immediately into a dubious haven where fugitives and
issues a warrant for the arrest of the escapes can unreasonably delay, mummify,
potential extraditee and summons him or mock, frustrate, checkmate and defeat the
59 PUBLIC INTERNATIONAL LAW 2008
quest for bilateral justice and international the said proceedings, and would motivate
cooperation. respondent to flee the Philippines before the Notes:
request for extradition could be made.
10) At the bottom, extradition proceedings
should be conducted with all deliberate There is also the fact that respondent is charged
speed to determine compliance with the with seven (7) counts of accepting an advantage
Extradition Treaty and the Law; and while as an agent and seven (7) counts of conspiracy to
safeguarding basic individual rights, to avoid defraud, for each count of which, if found guilty,
the legalistic contortions, delays and he may be punished with seven (7) and fourteen
technicalities that may negate that purpose. (14) years imprisonment, respectively.
Undoubtedly, the gravity of the imposable penalty
upon an accused is a factor to consider in
CUEVAS V. MUŇOZ determining the likelihood that the accused will
G.R. No. 140520, 18 December 2000, Second abscond if allowed provisional liberty. It is, after
Division, De Leon, J. all, but human to fear a lengthy, if not a lifetime,
incarceration. Furthermore, it has also not
JUAN ANTONIO MUÑOZ is charged with seven (7) possessed of sufficient resources to facilitate an
counts of accepting an advantage as an agent escape from this jurisdiction.
contrary to Section 9(1)(a) of the Prevention of
Bribery Ordinance of. Cap 201 of Hong Kong, and That respondent did not flee despite the
seven (7) counts of conspiracy to defraud, investigation conducted by the Central bank and
contrary to the common law of Hong Kong, for the NBI way back in 1994, nor when the warrant
each count of which, if found guilty, he may be for his arrest was issued by the Hong Kong ICAC in
punished with seven (7) and fourteen (14) years August 1997, is not a guarantee that he will no
imprisonment, respectively. The Hong Kong flee now that proceedings for his extradition are
Magistrate’s Court issued a warrant for his arrest. well on the way. Respondent is about to leave the
Thereafter, the Philippine DOJ received a request protective sanctuary of his mother state to face
for the provisional arrest of MUÑOZ pursuant to criminal charges in another jurisdiction. It cannot
the RP-Hong Kong Extradition Agreement. The be denied that this is sufficient impetus for him to
Philippine DOJ forwarded the request for flee the country as soon as the opportunity to do
provisional arrest to the NBI, which filed an so arises.
application for the provisional arrest of MUÑOZ Respondent also avers that his mother’s
with RTC of Manila for and in behalf of the impending death makes it impossible for him to
government of Hong Kong. RTC granted the leave the country. However, by respondent’s own
application. However, CA declared the Order of admission, his mother finally expired at the
Arrest null and void. Cardinal Santos Hospital in Madaluyong City last
December 5, 1999.24
ISSUE: Whether Munoz should be provisionally
arrested The request for provisional arrest of respondent
and its accompanying document are valid despite
HELD: lack of authentication. There is no requirement
There was urgency for the provisional arrest of for the authentication of a request for provisional
the respondent. “Urgency" connotes such arrest and its accompanying documents. The
conditions relating to the nature of the offense pertinent provision of the RP-Hong Kong
charged and the personality of the prospective Extradition Agreement enumerates the documents
extraditee which would make him susceptible to that must accompany the request, as follows: (1)
the inclination if he were to learn about the an indication of the intention to request the
impending request for his extradition and/or surrender of the person sought; (2) the text of a
likely to destroy the evidence pertinent to the warrant of arrest or judgement of conviction
said request or his eventual prosecution and against that person; (3) a statement of penalty for
without which the latter could not proceed. Such that offense; and (4) such further information as
conditions exist in Munoz’s case. would justify the issue of a warrant of arrest had
the offense been committed or the person
convicted within the jurisdiction of the requested
At the time the request for provisional arrest was
party. That the enumeration does not specify
made, respondent’s pending application for the
that these documents must be authenticated
discharge of a restraint order over certain assets
copies, is not a mere omission of law. This may be
held in relation to the offenses with which he is
gleaned from the fact that while Article 11(1)
being charged, was set to be heard by the Court
does not require the accompanying documents of
of First Instance of Hong Kong on September 17,
a request for provisional arrest to be
1999. The Hong Kong DOJ was concerned that the
authenticated, Article 9 of the same Extradition
pending request for the extradition of the
Agreement makes authentication a requisite for
respondent would be disclosed to the latter during
admission in evidence of any document
60 PUBLIC INTERNATIONAL LAW 2008
Muñoz is entitled to bail on the basis of “clear and Human Rights applies to deportation cases, there
convincing evidence.” If Muñoz is not entitled to is no reason why it cannot be invoked in Notes:
such, the trial court should order the cancellation extradition cases. After all, both are
of his bail bond and his immediate detention; and administrative proceeding where the innocence or
thereafter, conduct the extradition proceedings guilt of the person detained is not in issue,” the
with dispatch. Court said.
Muñoz was charged before the Hong Kong Court It further said that even if a potential extradite is
with three counts of the offense of “accepting an a criminal, an extradition proceeding is not by its
advantage as agent,” in violation of sec. 9 (1) (a) nature criminal, for it is not punishment for a
of the Prevention of Bribery Ordinance, Cap. 201 crime, even though such punishment may follow
of Hong Kong. He also faces seven counts of the extradition. It added that “extradition is not a
offense of conspiracy to defraud, penalized by the trial to determine the guilt or innocence of
common law of Hong Kong. potential extraditee. Nor is it a full-blown civil
action, but one that is merely administrative in
Citing the various international treaties giving character. By Jay B. Rempillo (SC website)
recognition and protection to human rights, the
Court saw the need to reexamine its ruling in
Government of United States of America v. Judge The Right of Asylum
Purganan which limited the exercise of the right Every foreign State can be at least a provisional
to bail to criminal proceedings. asylum for any individual, who, being persecuted
in his home State, goes to another State. In the
It said that while our extradition law does not absence of any international treaty stipulating the
provide for the grant of bail to an extraditee, contrary, no state is, by international laws,
there is no provision prohibiting him or her from obliged to refuse admission into its territory to
filing a motion for bail, a right under the such a fugitive or in case he has been admitted,
Constitution. to expel him or deliver him up to the prosecuting
state.
“The time-honored principle of pacta sunt The right of asylum is not a right possessed by an
servanda demands that the Philippines honor its alien to demand that a state protect him and
obligations under the Extradition grant him asylum. At present, it is just a privilege
Treaty….However, it does not necessarily mean granted by a state to allow an alien escaping from
that in keeping with its treaty obligations, the the persecution of his country for political reasons
Philippines should diminish a potential to remain and to grant him asylum.
extraditee’s rights to life, liberty, and due
process. More so, where these rights are Q: Explain the right of asylum in international
guaranteed, not only by our Constitution, but also law. (Bar)
by international conventions, to which the A: The right of asylum is the competence of
Philippines is a party. We should not, therefore, every state inferred from its territorial supremacy
deprive an extraditee of his right to apply for bail, to allow a prosecuted alien to enter and to remain
provided that a certain standard for the grant is on its territory under its protection and thereby
satisfactorily met,” the Court said. grant asylum to him.
3) The person fears persecution in his own ceases to be a private one but becomes one for
country. the public, that is, for the state. Notes:
The second element makes, a refugee a stateless DOCTRINE OF EFFECTIVE NATIONALITY
person. Because a refugee approximates a Within a third state, a person having more than
stateless person, he can be compared to a vessel one nationality shall be treated as if he had only
on the open sea not sailing under the flag of any one. Under the principle of effective nationality,
state, or be called flotsam and res nullius. the third state shall recognized conclusively in its
territory either the nationality of the country in
Only a person who is granted asylum by another which he is habitually and principally present or
state can apply for refugee status; thus the the nationality of the country with which he
refugee treaties imply the principle of asylum. appears to be in fact most closely connected.
The Law on International Obligations Article 2(2) of the Vienna Convention provides
that “the provisions of paragraph 1 regarding the
Sources of International Obligations use of terms in the present Convention are
The Law of Treaties without prejudice to the use of those terms, or to
Treaty Defined the meanings which may be given to them in the
2 Kinds of Treaties internal law of the State.” (BAYAN [Bagong
Parties Alyansang Makabayan] v. Executive Secretary
Requisites for Validity Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000,
Peremptory Norm En Banc [Buena])
Process of Treaty Making
Principle of Alternat Protocol de Clôture
Subject Matters of Treaties A final act, sometimes called protocol de cloture
Subject Matters of Executive Agreements is an instrument which records the winding up of
Most Favored Nation Clause the proceedings of a diplomatic conference and
Pacta Sunt Servanda usually includes a reproduction of the texts of
Rebus Sic Stantibus treaties, conventions, recommendations and other
Effect of Territorial Changes acts agreed upon and signed by the
plenipotentiaries attending the conference. It is
64 PUBLIC INTERNATIONAL LAW 2008
c) Prescription – filing of protest after between the obligations of the Members under the
the lapse of allowable period within UN Charter and their obligations under any Notes:
which the same may be entertained. international agreement, their obligations under
Thus, the State is deemed to have the UN Charter shall prevail.
ratified its consent.
Effect of Form on Validity
Remedy: Where the consent of a party There is no rule that treaties should be in written
has been given in error or induced form. Oral treaties are NOT prohibited.
through fraud on the part of the other However, orally agreed treaties are a rarity.
party, the treaty would be VOIDABLE.
Thus, the erring State must as soon as Note: The Vienna Convention, however, defines a
possible or within the time given in the “treaty” as “an international agreement
treaty, withdraw or correct its consent. concluded between States in written form and
governed by international law, whether embodied
in a singe instrument or in two or more related
Consent How Given instruments and whatever its particular
a) through a signature designation (is).”
b) exchange of instruments
c) ratification
d) acceptance PROCESS OF TREATY-MAKING
e) approval or accession; or Usual Steps Taken
f) by other means so agreed. 1) Negotiation of parties
2) Signature of the agreed text
4) Legality of Object 3) Ratification or accession
Rule: Immorality, illegality or made by the treaty-making organs of States
impossibility of purpose or obligations concerned
makes a treaty null and void. e.g. a 4) Exchange or deposit of the
treaty by which a State agrees with instruments of ratification or accession.
another to appropriate a portion of the
high seas. At present, treaties are prepared and adopted by
means of international diplomatic conferences.
Exceptions: Also, a large number of multilateral conventions
a) If the immorality, illegality or have been adopted by international organizations
impossibility does not run counter to a such as the General Assemble of the UN.
universally recognized peremptory norm
of international law but only against a Principle of Alternat
remote and minor norm. According to this principle, the order of the
naming of the parties, and of the signatures of the
b) If it does not contravene or depart plenipotentiaries is varied so that each party is
from an absolute or imperative rule or named and its plenipotentiary signs first in the
prohibition of international law. e.g. jus coy of the instrument to be kept by it.
dispositivum.
★ However, with respect to treaties with many
PEREMPTORY NORM parties, the practice is usually to arrange the
A norm generally accepted by the international names alphabetically in English or in French.
community of States as a whole as a norm from
which no derogation is permitted and which can Significance of Signature
be modified only by a subsequent norm of general Rule: The act of signature has little legal
international law having the same character. e.g. significance except as a means of authenticating
jus cogens the text of the treaty. It is the act of ratification
that is required to make a treaty binding.
Q: Explain, using example, jus cogens in
international law. (1991 Bar) Exceptions:
A: Jus cogens is a peremptory norm of general a) the treaty provides that signature shall have
international law accepted and recognized by the such effect;
international community as a whole. e.g. the b) it is otherwise established that the
prohibition against the use of force in dealing negotiating States were agreed that
with States. signatures should have that effect; or
c) the intention of the State to give that effect
INCOMPATIBILITY v. INCONSISTENCY to the signature appears from the full powers
Inconsistency raises the problem of conflict of of its representative or was expressed during
obligations. Incompatibility, on the other hand, the negotiations.
raises the question of nullity. e.g. Art. 103 of the
UN Charter provides that in the event of conflict Ratification
66 PUBLIC INTERNATIONAL LAW 2008
The act by which the provisions of a treaty are states because of their membership in the
formally confirmed and approved by a State. By family of nations. Notes:
ratifying a treaty signed in its behalf, a State
expresses its willingness to be bound by the 2. Under Article 2 of its charter,
provisions of such treaty. the UN shall ensure that non-member States
act in accordance with the principles of the
☀ State may Charter so far as may be necessary for the
ratify a treaty only when it is a signatory to maintenance of international peace and
it. security. Under Article 103, obligations of
member-states shall prevail in case of
☀ There is no conflict with any other international
moral duty on the part of the States to ratify agreement including those concluded with
a treaty notwithstanding that its non-members.
plenipotentiaries have signed the same. This
step, however, should not be taken lightly. 3. The treaty itself may expressly
extend its benefits to non-signatory states.
☀ A treaty may
provide that it shall not be valid even ratified 4. Parties to apparently unrelated
but shall be valid only after the exchange or treaties may also be linked by the most-
deposit of ratification has transpired. favored nation clause.
Q: What is ratification? Discuss its function in §21, A.VII, 1987 Phil. Constitution
the treaty-making process. No treaty or international agreement shall be
Held: Ratification is generally held to be an valid and effective unless concurred in by at least
executive act, undertaken by the head of state or 2/3 of ALL the Members of the Senate.
of the government, as the case may be, through
which the formal acceptance of the treaty is §20, A.VII, 1987 Phil. Constitution
proclaimed. A State may provide in its domestic The President may contract or guarantee foreign
legislation the process of ratification of a treaty. loans on behalf of the RP with the prior
The consent of the State to be bound by a treaty concurrence of the Monetary Board, and subject
is expressed by ratification when: (a) the treaty to such limitations as may be provided by law.
provides for such ratification, (b) it is otherwise The MB shall, within 30 days from the end of
established that the negotiating States agreed every quarter of the calendar year, submit to the
that ratification should be required, (c) the Congress a complete report of its decisions on
representative of the State has signed the treaty applications for loans to be contracted or
subject to ratification, or (d) the intention of the guaranteed by the Government or government-
State to sign the treaty subject to ratification owned and controlled corporations which would
appears from the full powers of its have the effect of increasing the foreign debt,
representative, or was expressed during the and containing other matters as may be provided
negotiation. (BAYAN [Bagong Alyansang by law.
Makabayan] v. Executive Secretary Ronaldo
Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc §4, A.XVIII, 1987 Phil. Constitution
[Buena]) All exiting treaties or international agreements
which have not been ratified shall not be renewed
Accession or Adherence or extended without the concurrence of at least
When a State, who has NOT SIGNED a treaty, 2/3 of ALL the Members of the Senate.
accedes to it.
§25, A.XVIII, 1987 Phil. Constitution
Binding Effects of a Treaty After the expiration in 1991 of the Agreement
As a rule, a treaty is binding only on the between the RP and the USA concerning the
contracting parties, including not only the original Military Bases, foreign military bases, troops, or
signatories but also other states, which, although facilities shall not be allowed in the Philippines
they may not have participated in the negotiation except under a treaty duly concurred in by the
of the agreement, have been allowed by its terms Senate and, when the Congress so requires,
to sign it later by a process known as accession. ratified by a majority of the votes cast by the
Non-parties are usually not bound under the people in a national referendum held for that
maxim of pacta tertiis nec noceat nec prosunt. purpose, and recognized as a treaty by the other
contracting State.
Q: Enumerate instances when a third State who
is non-signatory may be bound by a treaty. NOTE: This section prohibits, in the absence of a
A: treaty, the stationing of troops and facilities of
1. When a treaty is a mere formal foreign countries in the Philippines. However, it
expression of customary international law, DOES NOT INCLUDE the temporary presence in the
which, as such is enforceable on all civilized Philippines of foreign troops for the purpose of a
67 PUBLIC INTERNATIONAL LAW 2008
combined military exercise. Besides, the holding agreements are equally binding as treaties uon
of combined military exercise is connected with the States who are parties to them. Additionally, Notes:
defense, which is a sovereign function. under Article 2(1)(a) of the Vienna Convention on
the Law of Treaties, whatever may be the
Q: Discuss the binding effect of treaties and designation of a written agreement between
executive agreements in international law. States, whether it is indicated as a Treaty,
Held: [I]n international law, there is no Convention or Executive Agreement is not legally
difference between treaties and executive significant. Still it is considered a treaty and
agreements in their binding effect upon states governed by the international law of treaties.
concerned, as long as the functionaries have
remained within their powers. International law Q: The President authorized the Secretary of
continues to make no distinction between treaties Public Works and Highways to negotiate and
and executive agreements: they are equally sign a loan agreement with the German
binding obligations upon nations. (BAYAN [Bagong Government for the construction of a dam. The
Alyansang Makabayan] v. Executive Secretary Senate, by a resolution, asked that the
Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, agreement be submitted to it for ratification.
En Banc [Buena]) The Secretary of Public Works and Highways did
not comply with the request of the Senate.
Q: Does the Philippines recognize the binding (1994 Bar)
effect of executive agreements even without a) Under the Constitution,
the concurrence of the Senate or Congress? what is the role of the Senate in the
Held: In our jurisdiction, we have recognized the conduct of foreign affairs?
binding effect of executive agreements even b) Is the president bound to
without the concurrence of the Senate or submit the agreement to the Senate for
Congress. In Commissioner of Customs v. Eastern ratification?
Sea Trading (3 SCRA 351, 356-357 [1961]), we had
occasion to pronounce: A:
a) The Senate plays a
“x x x the right of the Executive to enter into role in the conduct of foreign affairs, because
binding agreements without the necessity of of the requirement in Section 21 Article VII of
subsequent Congressional approval has been the Constitution that to be valid and
confirmed by long usage. From the earliest days effective, a treaty or international agreement
of our history we have entered into executive must be concurred in by at least 2/3 of all
agreements covering such subjects as commercial members of the senate.
and consular relations, most-favored-nation b) No, the President
rights, patent rights, trademark and copyright is not bound to submit the agreement to the
protection, postal and navigation arrangements Senate for ratification. Under Section 20
and the settlement of claims. The validity of Article VII of the Constitution, only the prior
these has never been seriously questioned by our concurrence of the Monetary Board is
courts. " (BAYAN [Bagong Alyansang Makabayan] v. required for the President to contract foreign
Executive Secretary Ronaldo Zamora, G.R. No. loans on behalf of the Republic of the
138570, Oct. 10, 2000, En Banc [Buena]) Philippines.
b) YES, it is also binding from the standpoint of In return, the President agreed to allow
international law. As held in Bayan V. Zamora, American nuclear vessels to stay for short visits
342 S 449 [2000], in international law executive at Subic, and in case of vital military need, to
68 PUBLIC INTERNATIONAL LAW 2008
store nuclear weapons at Subic and at Clark An executive agreement is NOT a treaty. As such,
Field. A vital military need comes, under the concurrence by two-thirds vote (2/3) of all the Notes:
agreement, when hostile military forces members of the Senate is not necessary for it to
threaten the sea-lanes from the Persian Gulf to become binding and effective.
the Pacific.
Q: Is VFA a treaty or a mere executive
The Nuclear Free Philippines Coalition comes to agreement?
you for advice on how they could legally A: In the case of Bayan vs. Zamora, VFA was
prevent the same agreement entered into by considered a treaty because the Senate concurred
the President with the US government from in via 2/3 votes of all its members. But in the
going into effect. What would you advice them point of view of the US Government, it is merely
to do? Give your reasons. (Bar) an executive agreement.
A: If the agreement is not in the form of treaty,
it is not likely to be submitted to the Senate for Q: What is the implication if only the senate of
ratification as required in Article VII, Section 21. the Philippines concur but not the senate of
It may not, therefore, be opposed in that branch USA?
of the government. Nor a judicial review is A: None, it is only a matter of policy and the same
feasible at this stage because there is no is governed by their respective Municipal Law.
justiciable controversy. While Article VIII, Section
1, paragraph 2 states that judicial power includes Q: Senate Bill No. 1234 was passed creating a
the duty of courts of justice to “determine joint legislative-executive commission to give
whether or not there has been a grave abuse of on behalf of the Senate, its advice, consent and
discretion amounting to lack or excess of concurrence to treaties entered into by the
jurisdiction on the part of any branch or President. The bill contains the guidelines to
instrumentality of the government,” it is clear be followed by the commission in the discharge
that this provision does not do away with the of its functions. Is the bill constitutional? (1996
political question doctrine. It was inserted in the Bar)
Constitution to prevent courts from making use of A: NO, the bill is not constitutional. The Senate
the doctrine to avoid what otherwise are cannot delegate its power to concur to treaties
justiciable controversies, albeit involving the ratified by the President.
Executive Branch of the government during the
martial law period. On the other hand, at this Q: Can the House of Representatives take active
stage, no justiciable controversy can be framed to part in the conduct of foreign relations,
justify judicial review. I would therefore advice particularly in entering into treaties and
the Nuclear Free Philippines Coalition to resort to international agreements? (1996 Bar)
the media to launch a campaign against A: NO. As held in US v. Curtiss Wright Export
Agreement Corporation 299 US 304, it is the President alone
who can act as representative of the nation in the
Subject Matter of Treaties conduct of foreign affairs. Although the Senate
1) Political Issues has the power to concur in treaties, the President
2) Changes in National Policies alone can negotiate treaties and Congress is
3) Involve International Agreements of a powerless to intrude into this. However, if the
Permanent Character matter involves a treaty or an executive
agreement, the HR may pass a resolution
Subject Matter of EAs expressing its views on the matter.
1) Have transitory effectivity
2) Adjustment of details carrying out well- Reservations
established national policies and traditions A unilateral statement, however phrased or
3) Arrangements of temporary nature named, made by a State, when signing, ratifying,
4) Implementation of treaties, statutes, well accepting, approving, or acceding to a treaty,
established policies. whereby it purports to exclude or modify the legal
effect of certain provisions of the treaty in their
Q: How does a treaty differ from executive application to that State.
agreement?
A: An executive agreement is not a treaty in so When Reservation cannot be made
far as its ratification may not be required under a) If the treaty itself provides that NO
the Constitution. However, the distinction is reservation shall be admissible, or
purely municipal and has no international b) the treaty allows only specified reservations
significance. From the standpoint of international which do not include the reservation in
law, “treaties and executive agreement are alike question, or
in that both constitute equally binding obligations
upon the nations.” (FB Sayre, 39 Columbia Law c) the reservation is incompatible with the
Review, p. 75, 1939) object and purpose of the treaty.
Form and Time of Reservation
69 PUBLIC INTERNATIONAL LAW 2008
Written statement or declaration recorded at the unconditional. According to the clause in its
time of signing or ratifying or acceding to the unconditional form, any advantage of whatever Notes:
treaty. kind which has been or may in future be granted
by either of the contracting parties to a third
Objected Reservations State shall simultaneously and unconditionally be
Parties to the treaty may object to the extended to the other under the same or
reservations of a State entering the treaty. A equivalent conditions as those under which it has
1951 Advisory Opinion of the ICJ held that a been granted to the third State. (Salonga & Yap,
reserving State may be a party to a treaty Public International Law, 5th Edition, 1992, pp.
notwithstanding that one or more parties to the 141-142)
convention, but not all, objects to its reservations
and such reservations are not contrary to the 2. The purpose of a most favored nation clause is
object and purpose of said convention. to grant to the contracting party treatment not
REGISTRATION & PUBLICATION less favorable than that which has been or may be
Article 102, UN Charter granted to the "most favored" among other
1. Every treaty and every international agreement countries. The most favored nation clause is
entered into by any Member of the UN after the intended to establish the principle of equality of
present Charter comes into force shall as soon as international treatment by providing that the
possible be registered with the Secretariat and citizens or subjects of the contracting nations may
published by it. enjoy the privileges accorded by either party to
those of the most favored nation (Commissioner
2. No party to any such treaty or international of Internal Revenue v. S.C. Johnson and Son, Inc.,
agreement which has not been registered in 309 SCRA 87, 107-108, June 25, 1999, 3rd Div.
accordance with the provisions of para.1 of this [Gonzaga-Reyes])
Article may invoke that treaty or agreement
before any organ of the UN. Q: Explain the meaning of the concept of “most
favored nation” treatment? (1997 Bar)
★ The treaty, however, remains valid although A: The most favored nation treatment is that
not registered and not published in the UN. granted by one country to another not less
favorable than that which has been or may be
Entry into Force granted to the most favored among other
Means the date of effectivity of a treaty as countries. It usually applies to commercial
provided in the stipulations of the parties. In the transactions such as international trade and
absence of such stipulation, it is deemed in force investments.
as soon as the consent of ALL the parties are
established. Q: What is the essence of the principle behind
the "most-favored-nation" clause as applied to
Q: Are Treaties Self-Executing? tax treaties?
A: Qualified answer. In international law, it self- Held: The essence of the principle is to allow the
executes from the time of its entry into force. taxpayer in one state to avail of more liberal
However, there is NO absolute rule that treaties provisions granted in another tax treaty to which
are self-executing within the sphere of municipal the country of residence of such taxpayer is also a
law. Some municipal laws require further steps party provided that the subject matter of taxation
such as publication and promulgation before it x x x is the same as that in the tax treaty under
can produce legal effect. which the taxpayer is liable.
Inc.) must prove that the RP-US Tax Treaty grants Held: One of the oldest and most fundamental
similar tax reliefs to residents of the United rules in international law is pacta sunt servanda – Notes:
States in respect of the taxes imposable upon international agreements must be performed in
royalties earned from sources within the good faith. “A treaty engagement is not a mere
Philippines as those allowed to their German moral obligation but creates a legally binding
counterparts under the RP-Germany Tax Treaty. obligation on the parties x x x. A state which has
contracted valid international obligations is bound
The RP-US and the RP-West Germany Tax Treaties to make in its legislations such modifications as
do not contain similar provisions on tax crediting. may be necessary to ensure the fulfillment of the
Article 24 of the RP-Germany Tax Treaty x x x obligations undertaken.” (Tanada v. Angara, 272
expressly allows crediting against German income SCRA 18, May 2, 1997 [Panganiban])
and corporation tax of 20% of the gross amount of
royalties paid under the law of the Philippines. Influences to ensure observance to PSS
On the other hand, Article 23 of the RP-US Tax a) national self-interest
Treaty, which is the counterpart provision with b) a sense of duty
respect to relief for double taxation, does not c) respect for promises solemnly given
provide for similar crediting of 20% of the gross d) desire to avoid the obloquy attached
amount of royalties paid. X x x to breach of contracts
▪ Breach involves the obligation to make
X x x The entitlement of the 10% rate by U.S. reparations. There is, however, no
firms despite the absence of matching credit necessity to state this rule of reparation
(20% for royalties) would derogate from the design in the treaty itself because they are
behind the most favored nation clause to grant indispensable complement of failure to
equality of international treatment since the tax comply to one’s obligations.
burden laid upon the income of the investor is not
the same in the two countries. The similarity in
TAÑADA V. ANGARA (1997)
the circumstances of payment of taxes is a
condition for the enjoyment of most favored
nation treatment precisely to underscore the need One of the oldest and most fundamental rules in
for equality of treatment. international law is pacta sunt servanda -
international agreements must be performed in
2 Types good faith. "A treaty engagement is not a mere
a) Unconditional – any advantage of whatever kind moral obligation but creates a legally binding
which has been or may in future be granted by obligation on the parties x x x. A state which has
either of the contracting parties to a third State contracted valid international obligations is bound
shall simultaneously and unconditionally be to make in its legislations such modifications as
extended to the other under the same or may be necessary to ensure the fulfillment of the
equivalent conditions as those under which it has obligations undertaken."
been granted to the third State.
SEC. OF JUSTICE V. LANTION (2000)
b) Conditional – advantages are specified and
limited not universal. The rule of pacta sunt servanda, one of the oldest
and most fundamental maxims of international
CIR V. JOHNSON & SON, INC. (1999) law, requires the parties to a treaty to keep their
agreement therein in good faith. The observance
The purpose of a most favored nation clause is to of our country's legal duties under a treaty is also
grant to the contracting party treatment not less compelled by Section 2, Article II of the
favorable than that which has been or may be Constitution which provides that "[t]he Philippines
granted to the "most favored" among other renounces war as an instrument of national
countries. The most favored nation clause is policy, adopts the generally accepted principles
intended to establish the principle of equality of of international law as part of the law of the land,
international treatment by providing that the and adheres to the policy of peace, equality,
citizens or subjects of the contracting nations may justice, freedom, cooperation and amity with all
enjoy the privileges accorded by either party to nations." Under the doctrine of incorporation,
those of the most favored nation. rules of international law form part of the law of
the land and no further legislative action is
PACTA SUNT SERVANDA (PSS) needed to make such rules applicable in the
(AGREEMENT MUST BE KEPT) domestic sphere (citing Salonga & Yap, Public
Means that treaties must be performed in good International Law, 1992 ed., p. 12).
faith. One of the oldest and most fundamental
rules of international law. CIR V. ROBERTSON (1986)
"The obligation to fulfill in good faith a treaty v. Northwest Orient Airlines, 210 SCRA 256, June
engagement requires that the stipulations be 23, 1992) Notes:
observed in their spirit as well as according to
their letter and that what has been promised be Limitations to RSS
performed without evasion, or subterfuge, a) It applies only to treaties of indefinite
honestly and to the best of the ability of the party duration;
which made the promise." (citing Kunz, The b) The vital change must have been unforeseen
Meaning and Range of the Norm (Pacta Sunt or unforeseeable and should have not been
Servanda, 29 A.J.I.L. 180 (1945); cited in caused by the party invoking the doctrine.
Freidmann, Lisstzyn, Pugh, International Law c) It must be invoked within reasonable time;
(1969) 329). Somehow, the ruling becomes an and
anacoluthon and a persiflage. d) It cannot operate retroactively upon the
provisions of a treaty already executed prior
to the change in circumstances.
AGUSTIN V. EDU (1979)
Rules Governing Termination of RSS
t is not for this country to repudiate a a) a fundamental change (FC) must have
commitment to which it had pledged its word. occurred with respect to circumstances
The concept of pacta sunt servanda stands in the existing at the time of the conclusion of the
way of such an attitude, which is, moreover, at treaty;
war with the principle of international morality.
b) the existence of those circumstances
constituted the basis of the consent of the
REBUS SIC STANTIBUS (RSS)
parties to be bound by the treaty; and
(THINGS REMAINING AS THEY ARE)
c) the change has radically transformed the
This doctrine involves the legal effect of change
extent of the obligations still to be performed
in conditions underlying the purposes of a treaty.
under the treaty.
Simply stated, the disappearance of the
foundation upon which it rests.
When FC cannot be invoked
Authors, jurists, and tribunals are varied in the
a) if the treaty establishes a boundary
application of this doctrine. A majority, however,
b) if the FC is the result of the breach by the
hold that “the obligation of a treaty terminates
party invoking it of an obligation owed to any
when a change occurs in circumstances which
other party to the treaty.
existed at the time of the conclusion of the treaty
and whose continuance formed, according to the
intention or will of the parties, a condition of the SANTOS V. NORTHWEST AIRLINES (1992)
continuing validity of the treaty.” The change
must be vital or fundamental. Also, under this Obviously, rejection of the treaty, whether on the
doctrine, a treaty terminates if the performance ground of rebus sic stantibus or pursuant to
of obligations thereof will injure fundamental Article 39, is NOT a function of the courts but of
rights or interests of any one of the parties. the other branches of government. This is a
political act. The conclusion and renunciation of
Explain the "rebus sic stantibus" rule (i.e., treaties is the prerogative of the political
things remaining as they are). Does it operate departments and may not be usurped by the
automatically to render a treaty inoperative? judiciary. The courts are concerned only with the
Held: According to Jessup, the doctrine interpretation and application of laws and treaties
constitutes an attempt to formulate a legal in force and not with their wisdom or efficacy.
principle which would justify non-performance of
a treaty obligation if the conditions with relation
to which the parties contracted have changed so
materially and so unexpectedly as to create a PNCC V. CA (1997)
situation in which the exaction of performance
would be unreasonable. The key element of this
doctrine is the vital change in the condition of the The principle of rebus sic stantibus neither fits in
contracting parties that they could not have with the facts of the case. Under this theory, the
foreseen at the time the treaty was concluded. parties stipulate in the light of certain prevailing
conditions, and once these conditions cease to
The doctrine of rebus sic stantibus does not exist, the contract also ceases to exist. This
operate automatically to render the treaty theory is said to be the basis of Article 1267 of the
inoperative. There is a necessity for a formal act Civil Code, which provides:
of rejection, usually made by the head of state,
with a statement of the reasons why compliance “ART. 1267. When the service has become so
with the treaty is no longer required. (Santos III difficult as to be manifestly beyond the
72 PUBLIC INTERNATIONAL LAW 2008
contemplation of the parties, the obligor may also the text for the purpose of discovering its
be released therefrom, in whole or in part.” meaning. Notes:
TRAVAUX PREPARATOIRES
This article, which enunciates the doctrine of
Preparatory works as a method of historical
unforeseen events, is NOT, however, an absolute
interpretation of a treaty. These works are
application of the principle of rebus sic stantibus,
examined for the purpose of ascertaining the
which would endanger the security of contractual
intention of the parties.
relations. The parties to the contract must be
presumed to have assumed the risks of
★ The interpretation of one State, even
unfavorable developments. It is therefore only in
absolutely exceptional changes of circumstances according to its municipal laws and given by
that equity demands assistance for the debtor its authorized organs within the State, is NOT
BINDING to the other party unless the latter
accepts it.
EFFECT OF TERRITORIAL CHANGES
(1978 CONVENTION ON SUCCESSION OF STATES IN
★ No interpretation is needed when the text is
RESPECT TO TREATIES)
clear and unambiguous.
Dispositive Treaties
★ A treaty may be authoritatively interpreted:
These are treaties which deal with rights over
territory and are deemed to run with the land and
a) by interpretation given by the treaty
are not affected by changes of sovereignty. e.g. itself
treaties dealing with boundaries between States. b) by mutual agreement or
c) through international court
▪ When an existing State acquires a territory, it arbitration
does not succeed to the predecessor State’s
treaties, but its own treaties becomes applicable TERMINATION OF TREATIES
to the newly acquired territory. Most Common Causes:
a) Termination of the treaty or withdrawal of a
New States Formed Through Decolonization party in accordance with the terms of the
treaty;
a) a new State is under NO obligation to succeed b) In bipartite treaties, the extinction of one of
to the old State as a party to a multilateral
the parties terminates the treaty. Moreover,
treaty, but if it wants to do so, it has to
when the rights and obligations under the
notify the depository that it regards itself as
treaty would not devolve upon the State that
a succeeding party to the treaty.
may succeed to the extinct State.
b) a new State can be a party to an existing
c) Mutual agreement of ALL the parties;
treaty between the predecessor State and
another State only if the other State and the d) Denunciation of the treaty by one of the
new State both agree. Such, however, may parties. RIGHT OF DENUNCIATION – the right
be implied from the conduct of both States. to give notice of termination or withdrawal
which must be exercised if provided for in the
New States Formed Through Secession or treaty itself or impliedly;
Disintegration e) Supervening impossibility of performance;
Succeeds AUTOMATICALLY to most of the f) Conclusion of a subsequent inconsistent
predecessor’s treaties applicable to the territory treaty between the same parties;
that has seceded or disintegrated. g) Violation of the treaty;
h) Doctrine of RSS;
☀ “Clean Slate” i) War between the parties – war does not
Doctrine – Under this doctrine, seceding or abrogate ipso facto all treaties between the
disintegrating States DOES NOT make belligerents.
succession to an existing treaty automatic. j) Severance of diplomatic or consular
relations;
Interpretation of Treaties k) Emergence of a new peremptory norm
A treaty shall be interpreted in good faith in contrary to the existing treaty.
accordance with the ordinary meaning to be given l) Voidance of the treaty because of defects in
to the terms of the treaty in their context and in its conclusion or incompatibility with
the light of its object and purpose. There are, international law or the UN Charter.
however, NO TECHNICAL RULES.
B. STATE RESPONSIBILITY FOR INJURY TO
CANONS OF INTERPRETATION ALIENS
Generally regarded by publicists as applicable to Rule: NO State is under obligation to admit aliens.
treaties consist largely of the application of This flows from sovereignty.
principles of logic, equity and common sense to Exception: If there is a treaty stipulation
imposing that duty.
73 PUBLIC INTERNATIONAL LAW 2008
Exhaustion of Local Remedies For example, a law imposing death penalty for a
Rule: The alien himself must have first exhausted petty theft would fall short of the international
the remedies provided by the municipal law, if standard. So to would one calling for the arbitrary
there be any. punishment of accused persons without
compliance with the usual requisites of due
Exceptions: process.
a) When the injury is inflicted directly
by the State such as when its diplomats are Nature and Measure of Damages
attacked. Reparation may consist of restitution:
b) When there are no remedies to a) in kind
exhaust; b) specific performance
c) The application for remedies would c) apology
result in no redress. d) punishment of the guilty
e) pecuniary compensation
No waiver f) or the combination of the above
The claim belongs to the State and not to the
individual. Thus, waiver of individual does not Measure – estimate of the loss caused to the
preclude the State to pursue the claim. injured individual, or, if he has lost his life, on
the loss caused by the death to his dependents.
CALVO CLAUSE
Named after an Argentinean lawyer and Q: What is the principle of attribution? (1992
statesman who invented it stipulating that Bar)
the alien agrees in advance not to seek A: The acts of private citizens or groups cannot
diplomatic intervention. themselves constitute a violation by the
Philippines if said acts cannot be legally
☀ disreg attributed to the Philippines as a State.
arded by international arbitral tribunals
because the alien cannot waive a claim Q: In a raid conducted by rebels in a Cambodian
that does not belong to him but to his town, an American businessman who has been a
government. long-time resident of the place was caught by
the rebels and robbed of his cash and other
valuable personal belongings. Within minutes
Q: Is the Calvo clause lawful? two truckloads of government troops arrived
prompting the rebels to withdraw. Government
76 PUBLIC INTERNATIONAL LAW 2008
troopers immediately launched pursuit because disputes are matters for objective
operations and killed several rebels. No cash or determination. Notes:
other valuable property taken from the
American businessman was recovered. International Dispute – if the dispute arises
between two or more States.
In an action for indemnity filed by the US
Government in behalf of the businessman for ▪ The charging of one State and the denial of
injuries and losses in cash and property, the another of the dispute as charged, creates
Cambodian Government contended that under an international dispute as “there has thus
International Law it was not responsible for acts arisen a situation in which the two sides hold
of the rebels. clearly opposite views concerning the
questions of the performance or non-
1. Is the contention of the Cambodian performance of their treaty obligations.
Government correct? Explain. Confronted with such a situation, the Court
2. Suppose the rebellion is successful and a new must conclude that international disputes
government gained control of the entire State, have arisen.” ICJ Reports 1950
replacing the lawful Government that was
toppled, may the new government be held Legal Dispute – the following are deemed
responsible for the injuries or losses suffered by constitutive of a legal dispute:
the American businessman? Explain. (1995 Bar) i. interpretation of a treaty;
A: 1. YES. Unless it clearly appears that the ii. any question of international law;
Cambodian government has failed to use promptly iii. the existence of any fact which, if
and with appropriate force its constituted established, would constitute a breach of
authority, it can not be held responsible for the an international obligation;
acts of the rebels for the rebels are not their iv. the nature or extent of the reparation to
agents and their acts were done without its be made for the breach of an
volition. In this case, the government troopers international obligation.
immediately pursued the rebels and killed several
of them. Dispute v. Situation
2. YES. Victorious rebel movements are A dispute can properly be considered as a
responsible for the illegal acts of their forces n disagreement on a matter at issue between two
the course of the rebellion. The acts of the rebels or more States which has reached a stage at
are imputable to them when they assume as duly which the parties have formulated claims and
constituted authorities of the State. counterclaims sufficiently definite to be passed
upon by a court or other body set up for the
purpose of pacific settlement. A situation, by
Pacific Settlement of International Disputes contrast, is a state of affairs which has not yet
assumed the nature of conflict between the
Nature parties but which may, though not necessarily,
International Dispute Defined come to have that character.
Optional Clause
Types Optional Clause
1. Negotiation [OPTIONAL JURISDICTION CLAUSE]
2. Good Offices The following are deemed legal disputes:
3. Mediation 1. Interpretation of a treaty;
4. Enquiry 2. Any question of international law;
5. Conciliation 3. The existence of any fact which, if
6. Arbitration established, would constitute a breach of
7. Judicial Settlement an international obligation; and
4. The nature or extent of the reparation to
¯°º°¯ be made for the breach of an
international obligation.
Nature
It is well established in international law that no TYPES OF Pacific Settlement
State can, without its consent, be compelled to I. Negotiation
submit its disputes with other States either to The legal and orderly administrative process by
mediation or arbitration, or to any other kind of which governments, in the exercise of their
pacific settlement (PS). (PCIJ on STATUS OF unquestionable powers, conduct their relations
EASTERN CARELIA.) with one another and discuss, adjust and settle
their differences.
Dispute – is a disagreement on a point of law or The chief and most common method of settling
fact, a conflict of legal views or interests between international disputes. By this method, the
two persons. The mere denial of the existence of parties seek a solution of their differences by
a dispute does not prove its non-existence
77 PUBLIC INTERNATIONAL LAW 2008
A form of embargo employed by a State to its “threat to peace, a breach of the peace, or an act
own vessels within its national domain or of of aggression.” Notes:
resources which otherwise might find their
way into foreign territory. Article 41, UN Charter
The SC may decide what measures not involving
Collective Embargo the use of armed forces are to be employed to
Embargo by a group of States directed against give effect to its decisions, and it may call upon
an offending State. This may be: the Members of the UN to apply such measures.
a) collective embargo on import or export These may include complete or partial
of narcotic drugs interruption of:
b) collective embargo by way of a) economic relations and of rail, sea, air,
enforcement action under the UN Charter postal, telegraphic, radio, and other
means of communication; and
V. Boycott b) severance to the diplomatic relations.
A comparatively modern form of reprisal which
consists of a concerted suspension of trade and
business relations with the nationals of the Article 42, UN Charter
offending State. Should the SC consider that measures provided for
in Article 41 would be inadequate or have proved
VI. Non-intercourse to be inadequate, it may take such action by air,
Consists of suspension of ALL commercial sea, or land forces as may be necessary to
intercourse with a State. A complete or partial maintain or restore international peace and
interruption of economic relations with the security. Such action may include:
offending State as a form of enforcement a) demonstrations
measure. b) blockade and
c) other operations by air, sea, or land
VII. Pacific Blockade forces of Members of the UN.
A naval operation carried out in time of peace
whereby a State prevents access to or exit from
particular ports or portions of the coast of
The Laws of War
another State for the purpose of compelling the
latter to yield to certain demands made upon it
by the blockading State. Definition of War
Legality of War
☀ Third States do not acquire the status of Rules of Warfare
neutrals because there is no belligerency Sanctions of the Laws of War
between the blockader and the State. Commencement and Termination of War
Effects of Outbreak of War
Quarantine [See movie “Thirteen Days”] Conduct of Warfare
The right to stop and search vessels of third
States suspected of carrying specified cargo ¯°º°¯
to the “quarantined” State has been asserted
by the blockading State. THE CUBAN War INGRID DETTER DE LUPIS
QUARANTINE. A sustained struggle by armed forces of a certain
intensity between groups of certain size,
☀ Blockade may no longer be consisting of individuals who are armed, who wear
resorted to by States Members as a distinctive insignia and who are subjected to
measure of self-help. It may only be military discipline under responsible command.
used collectively by or on behalf of the
UN as an enforcement action under Legality of War under UN
Article 41 of the UN Charter. The use of armed force is allowed under the UN
Charter only in case of individual or collective
self-defense, or in pursuance of a decision or
recommendation of the SC to take forcible action
VIII. Collective Measures under the Charter against an aggressor.
A system of peace enforcement under the UN
Charter. It envisages the employment, if As Self-Defense – the use of force in self-defense
necessary, of compulsive measures to maintain or is permitted only while the SC has not taken the
restore peace. These measures may or may not necessary measures to maintain or restore
involve the use of armed forces. international peace and security.
The enforcement provisions of the Charter are ★ The laws of war are not
brought into play only in the event that the SC applicable to war alone in its technical
determines, under Article 39, that there exists a sense, but to all armed conflicts.
80 PUBLIC INTERNATIONAL LAW 2008
corporation is regarded as enemy person International law leaves each belligerent free to
if it: regulate this matter by his own domestic law. In Notes:
1) is incorporated in an enemy general, it may be stated that States treat as void
teriroty; or contracts which may give aid to the enemy or add
2) is controlled by individuals to his resources, or necessitate intercourse or
bearing enemy character. communication with enemy persons.
On contracts
83 PUBLIC INTERNATIONAL LAW 2008
NOTE: Only RF, IF and Levee may be treated as 6) Civilians and persons hors
prisoners of war under Protocol I of 1977. See de combat – persons hors de combat are
this reviewer’s section on POW. those who are either wounded or, for other
reasons, have permanently joined the civilian
Restrictions on weapons population.
Prohibited weapons:
1) explosive bullets
2) use of dum-dum bullets
7) Parachutists – those who
3) employment of projectiles bail out from aircrafts in distress. Must only
whose only object is diffusion of asphyxiating, be treated as POW.
poisonous, or other gases, and all analogous
liquids, materials or devices 8) Hospitals, hospital ships
4) the use of bacteriological and medical units – a clear marking or a Red
methods of warfare. Cross to show their status.
5) The laying of “contact” mines
6) Explosives from balloons 9) Food supplies and crops
Q: What are the core crimes in IHL? TAN SE CHIANG v. DIRECTOR OF POSTS
A: The core crimes in IHL are genocide, crimes
against humanity, war crimes and aggression. Belligerent occupation becomes an accomplished
These core crimes are specified in the Statues fact the moment the government of the invaded
of the ICC (or the Rome Statute for an ICC) which territory is rendered incapable of publicly
describes them as the most serious crimes of exercising its authority and the invader is in a
concern to the international community as a position to substitute and has substituted his own
whole. These crimes are within the jurisdiction of authority for that of the legitimate government of
the ICC. the occupied territory.
NOTE: Although the Philippines has signed but not
NOTE: Belligerent occupation is different from
yet ratified the Rome Statute establishing the ICC,
the ICC Statute’s and definitions of the core Military occupation.
crimes are authoritative statements for us since
they are practically lifted from customary Rights & Duties of a Belligerent Occupant
85 PUBLIC INTERNATIONAL LAW 2008
become international waterways (such as the Suez A right of a belligerent to requisition and use,
Canal and the Panama Canal). subject to certain conditions, or even to destroy Notes:
in case of necessity, neutral property found in its
PROHIBITION OF WARLIKE ACTIVITIES IN territory, in enemy territory or in the high seas.
NEUTRAL TERRITORY
The Hague Convention No. XIII provides that 3 Conditions
“belligerents are forbidden to use neutral ports a. there must be an
and waters as base of naval operations against urgent need for the property in
their adversaries.” Thus, a neutral must prevent connection with the offensive or
belligerent warships from cruising within its defensive war;
maritime belt for the purpose of capturing enemy b. the property is
vessels as soon as they leave it. within the territory or jurisdiction of the
belligerent;
In the event that a neutral port or roadstead is c. compensation must
used for repairs, the neutral state may allow it as be paid to the owner.
long as such repairs are absolutely necessary to
render them seaworthy, not repairs which would NOTE: A neutral subject within the territory of a
add in any way to their fighting force. Also, belligerent is not entitled to indemnity from
belligerent warships cannot take shelter in a either side against the loss of property occasioned
neutral port for any undue length of time in order by legitimate acts of war.
to evade capture. The maximum length of stay
permissible is 24 hours, unless the neutral state BLOCKADE
has prescribed otherwise in their municipal laws An operation of war carried out by belligerent
or unless the nature of repairs to be done or the seacraft or other means, for the purpose of
stress of weather would require a longer time. preventing ingress and egress of vessels or aircraft
of all nations to and from the enemy coast or any
Neutral ports may not become places of asylum or part thereof.
permanent rendezvous for belligerent prizes. The
rule is that a prize may not be brought into a
neutral port, except under certain circumstances. CONTRABAND
A term used to designate those goods which are
susceptible of use in war and declared to be
NEUTRAL ASYLUM TO LAND AND NAVAL FORCES contraband by a belligerent, and which are found
OF BELLIGERENT by that belligerent on its way to assist the war
POW’s who escape into neutral territory or are operations or war effort of the enemy. STONE
brought into neutral territory by enemy troops
who themselves take refuge there shall become Requisites:
free ipso facto, and the neutral State shall leave a) susceptible of use in war
such prisoners at liberty, but if it allows them to b) destined for the use of a belligerent in its
remain in its territory, it may assign them a place war effort.
of residence so as to prevent them from rejoining
their forces. Kinds of Contrabands
a) absolute – goods which by their very
As regards fugitive soldiers, the neutral State is nature are intended to be used in war.
not obliged to grant them asylum, although it is
not forbidden to do so. b) conditional – goods which by their nature
are not destined exclusively for use in
Belligerent aircraft and their personnel, if they war, but which are nevertheless of great
are compelled to land in neutral territory, must value to a belligerent in the prosecution
be interned. of the war. e.g. foodstuff, clothing, fuel,
horses, etc.
In case a belligerent men-of-war refuses to leave
neutral port in which it is not entitled to remain, Hostile destination
the neutral State concerned has the right to take In case of absolute contraband it is necessary only
such measures as it deems necessary to render to prove that the goods had as their destination
the ship incapable of putting to sea for the any point within enemy or enemy-controlled
duration of the war. When the belligerent ship is territory. In the case of conditional contraband,
detained by a neutral State, the officers and crew it is required that the goods be destined to the
are likewise interned, either in the ship itself or authorities or armed forces of the enemy. In
in another vessel or on land, and may be both, the destination as of moment of seizure is
subjected to such restrictions as may be critical.
necessary.
Doctrine of continuous voyage
RIGHT OF ANGARY Goods which are destined to a neutral port cannot
be regarded as contraband of war.
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Doctrine of Infection
Under the British and American practice, the
penalty for carriage of contraband would be
confiscation of the contraband cargo. Innocent
cargo belonging to the same owner would also be
subject to confiscation. Innocent cargo belonging
to another owner would be released, but without
compensation for delay and detention in the Prize
Court.
a. Is the Philippines under an obligation to extradite Lawrence? State the applicable rule and its rationale.
b. Assume that the extradition request was made after the Philippines adopted its anti-hacker legislation. Will
that change your answer?
2007 BAR. In 1993, historians confirmed that during World War II, "comfort women" were forced into serving the
Japanese military. These women were either abducted or lured by false promises of jobs as cooks or waitresses, and
eventually forced against their will to have sex with Japanese soldiers on a daily basis during the course of the war,
and often suffered from severe beatings and venereal diseases. The Japanese government contends that the "comfort
stations" were run as "onsite military brothels" (or prostitution houses) by private operators, and not by the Japanese
military. There were many Filipina "comfort women."
a. Name at least one basic principle or norm of international humanitarian law that was violated by the
Japanese military in the treatment of the "comfort women."
b. The surviving Filipina "comfort women" demand that the Japanese government apologize and pay them
compensation. However, under the 1951 San Francisco Peace Agreement -the legal instrument that ended
the state of war between Japan and the Allied Forces -all the injured states, including the Philippines,
received war reparations and, in return, waived all claims against Japan arising from the war. Is that a
valid defense?
c. The surviving Filipina "comfort women" sue the Japanese government for damages before Philippine courts.
Will that case prosper?