POLITICAL LAW PUBLIC INTERNATIONAL LAW REVIEWER & MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2002 Carrie, Aldrich

, Evelyn, Thel, Gem, Ronald

PUBLIC INTERNATIONAL LAW International law is that branch of public law which regulates the relations of States and of other entities which have been granted international personality (e.g. the UN). Modern international law after World War II, however, now deals not only with the relations between states, but also their relations with persons, natural or juridical (e.g. int’l human rights law). Distinction between a subject and object of international law A subject is an entity that has rights and responsibilities under international law; it can be a proper party in transactions involving the application of international law among members of the international community. Subjects include: states, colonies, the Holy See, the United Nations. An object is a person or thing in respect of which rights are held and obligations assumed by the subject; it is not directly governed by the rules of international law; its rights are received, and its responsibilities imposed, indirectly through the instrumentality of an international agency. Traditionally, individuals have been considered merely as objects, not subjects, of international law; however, modern IL now grants, primarily through treaties, a certain degree of international personality to individuals (e.g. individuals are granted by treaty the power to sue before the European Court of Human Rights). Divisions of International Law 1) LAWS OF PEACE- governs the normal relations of States 2) LAWS OF WAR - rules during periods of hostility 3) LAWS OF NEUTRALITY- rules governing States not involved in the hostilities

Relation to Municipal Law
2 VIEWS: 1) DOCTINE OF INCORPORATION - rules of international law form part of the law of the land and no further legislative action is needed to make such rules applicable in the domestic sphere. a) Such is recognized in art. 2, sec. 2, as the Philippines "adopts the generally accepted principles of international law as part of the law of the land." b) Rules of international law are given equal standing with, but are not superior to, national legislative enactments. Thus, the Constitution, as the highest law of the land, may invalidate a treaty in conflict with it. (Secretary of Justice v. Hon. Lantion and Mark Jimenez, Jan. 18, 2000) 2) DOCTRINE OF TRANSFORMATION - the generally accepted rules of int'l law are not per se binding upon the State but must first be embodied in legislation enacted by the lawmaking body and so transformed into municipal law. Only when so transformed will they become binding upon the State as part of its municipal law.

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Ex. if within that period. Sources of International Law Article 38 of the Statute of the International Court of Justice (ICJ) is considered the authoritative enumeration of the sources of International Law. Gem. because the two systems are mutually exclusive. estoppel. a treaty is evidence of custom). Principles on diplomatic immunity have been developed by judgments of national courts. If IL is applied within a state. rules based on natural justice. are acceptable. when applying int'l law. The Philippines is a dualist state. CUSTOM . OPINIO JURIS . Q: What is 'INSTANT' CUSTOM? A: Customary law may emerge even within a relatively short passage of time. However. Ex. good faith. STATE PRACTICE – a consistent and uniform external conduct of States.Practices which. Thel. 3. int'l law does NOT always require a long period of time to elapse before conduct is considered customary.POLITICAL LAW PUBLIC INTERNATIONAL LAW REVIEWER & MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2002 Carrie. treaties may be considered a direct source of Int'l law when concluded by a sizable no. Germany is a monist state..State practice must be accompanied with the conviction that the State is legally obligated to do so by int'l law. through persistent usage. Generally. Note: Even decisions of national courts. Evelyn. exhaustion of local remedies B) SECONDARY 1. State Practice has been uniform and extensive. 2) MONISM – Monists have a unitary concept of law and see all law – including both international and municipal law – as an integral part of the same system. Thus. a treaty only binds the parties. TREATY / INTERNATIONAL CONVENTIONS . no conflict can ever arise between international and municipal law. while municipal law regulates the internal affairs of a state. IL regulates the relations of sovereign states. both what states say and what they do are considered state practice. international law must prevail. Ronald 2 THEORIES: 1) DUALISM – domestic and international law are independent of each other.g. 2.Principles common to most national systems of law. of States. have grown to be accepted by States as legally binding. and is reflective of the will of the family of nations (in which case. (ex. 2 . and not through mere courtesy or comity.Generally.a subsidiary means for the determination of rules of law (e. 2. If conflict exists between international law and municipal law. Law on the Continental Shelf) Thus. it is only because it has been expressly incorporated by municipal law. A) PRIMARY 1. 2 Elements: 1. as they regulate different subject matters. determining what rules of customary IL exist) that is acceptable so long as they correctly interpret and apply int'l law. GENERAL PRINCIPLES OF LAW . JUDICIAL DECISIONS . Aldrich. or because of humanitarian considerations.

2. It is defined as the power of a State to manage its external affairs without direction or interference from another State. like judicial decisions. INTERNAL. the latter taking over the rights and some of the obligations of the former. 2. C) PRINCIPLES OF STATE SUCCESSION A.' Learned writings. State A ) ELEMENTS OF A STATE: A State should possess the following qualifications (Art. Montevideo Convention): 1) a permanent population. Ronald 2. Aldrich. 3) government. and can also play a subsidiary role in developing new rules of law. It refers to the supreme and uncontrollable power inherent in the State by which such State is governed.The word 'Publicist' means 'learned writer. or is created as a result of merger of 2 or more States. EXTERNAL. 2 Requisites: 1. Fair and impartial representation of law. By an acknowledged authority in the field. TEACHINGS OF PUBLICISTS -. 1. 4) capacity to enter into relations with other States B) DISTINCTIONS BETWEEN SOVEREIGNTY AND INDEPENDENCE A. B.freedom of the State to direct its foreign affairs.takes place when a State is completely annexed by another. 2) a defined territory. Gem. C. STATE SUCCESSION is the substitution of one State by another. It has 2 aspects: 1. can be evidence of customary law. 3 . 2 types of State Succession: 1. PARTIAL .POLITICAL LAW PUBLIC INTERNATIONAL LAW REVIEWER & MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2002 Carrie.freedom of the State to manage its own affairs. 2. B. Evelyn. UNIVERSAL. The allegiance of the inhabitants of the predecessor State is transferred to the successor State. Effects of State Succession 1.takes place when a portion of the territory of a State loses part of its sovereignty by joining a confederation or becoming a protectorate or suzerainty. Thel. SOVEREIGNTY is the broader term. INDEPENDENCE is synonymous with external sovereignty. or is dismembered or dissolved.

E) TERRITORY 1. In succession of government. c. Subjugation It is a derivative mode of acquisition by which the territory of one state is conquered in the course of war and thereafter annexed and placed under sovereignty of the conquering state. 2. the integrity of the original State is not affected as what takes place is only a change in one of its elements. b. Methods used in defining the territorial sea a. Thel. the new government inherits all rights and obligations of the old government. 3. the new government inherits all the rights of the old government. the new government may reject the obligations of the old government if they are of a political complexion. Treaties entered into by the predecessor State are not considered binding on the successor State except those dealing with local rights and duties such as servitudes and boundaries. they should be respected. Gem. Some modes of acquisition: a. b. 2. Normal baseline method Under this method. Ronald 2. However. If the obligations are the consequence of the routinary act of administration of the old government. Cession It is a derivative mode of acquisition by which territory belonging to one state is transferred to the sovereignty of another state in accordance with an agreement between them. The public property of the predecessor State is acquired by the successor State but not the tort liability of the former. D) SUCCESSION OF GOVERNMENT 1. Evelyn. b. Prescription 4 . following its sinuosities and curvatures but excluding the internal waters in bays and gulfs. the territorial sea is drawn from the low-water mark of the coast to the breadth claimed. If effected by peaceful means. Effects of a change in government: a. The political laws of the predecessor State are automatically abrogated but the non-political laws are deemed continued unless expressly repealed or contrary to the institutions of the new sovereign. If effected by violence. 4.POLITICAL LAW PUBLIC INTERNATIONAL LAW REVIEWER & MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2002 Carrie. The waters inside the lines are considered internal. Aldrich. the government. Straight baseline method Straight lines are made to connect appropriate points on the coast without departing radically from its general direction.

Subject matter of Treaties 1. Implementation of treaties. Vienna Convention on the Law of Treaties) A TREATY is: 1) 2) 3) 4) 5) an international agreement concluded between States in written form governed by international law embodied in a single instrument or in 2 or more related instruments. Subject Matter of Executive Agreements [Code: TAAI ] 1.right to send diplomatic representatives 2.7. Thel. Types: 1.While the Constitution vests the power to NEGOTIATE treaties with the President. Adjustment of details carrying out well-established national policies and traditions 3. Changes in National Policy 3. It is the right of a state to maintain diplomatic relations with other states. Have Transitory effectivity 2.right to receive diplomatic representatives Treaties 1) DEFINITION (Art. Aldrich. b. Q: If not in writing.POLITICAL LAW PUBLIC INTERNATIONAL LAW REVIEWER & MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2002 Carrie. 2) DISTINGUISHED FROM EXECUTIVE AGREEMENTS A. Oral agreements between States are recognized as treaties under customary international law (but are extremely rare nowadays). F) RIGHT OF LEGATION a. Ronald It is a derivative mode of acquisition by which territory belonging to one state is transferred to the sovereignty of another state by reason of the adverse and uninterrupted possession thereof by the latter for a sufficiently long period of time. 2. Need for ratification by the Senate 1. statutes. Arrangements of temporary nature 4. Passive. Active. such must be RATIFIED by the 2/3 of the Senate to become valid and effective (Art. well-established policies C. Gem. EXECUTIVE AGREEMENTS do not need to be ratified by the Senate [Code: PCI] 5 . Involve international arrangements of a permanent character B. is it still considered a treaty? A: Yes. Sec 21) 2. TREATIES AND INT'L AGREEMENTS -. Evelyn. Political Issues 2.

a rule which has the status of a preemptory (i. the state will be responsible if it is shown that it participated in the act or omission complained of or was remiss in redressing the resultant wrong. Examples: (1) prohibition against the unlawful use of force. Gem.. PACTA SUNT SERVANDA . REBUS SIC STANTIBUS . a norm accepted and recognized 2. if the 'fundamental change' is the result of a breach by the party invoking it of an obligation under the treaty or of any other obligation owed to any other party to the treaty. Direct responsibility-attaches to the state if the wrongful act/omission was effected through any of its superior organs acting on its behalf 6 . by the int'l community of States as a whole 3. B. Because of an international wrong imputable to it. If a treaty. uncompromising) norm of international law. JUS COGENS . conflicts with jus cogens. Elements: 1. if the treaty establishes a boundary b.Every treaty in force is binding upon the parties and must be performed by them in good faith. 1) it has been described as the exception to the rule of pacta sunt servanda. as a norm from which no derogation is permitted. 4. Aldrich. (2) Types of State responsibility a. at the time of its conclusion. C.POLITICAL LAW PUBLIC INTERNATIONAL LAW REVIEWER & MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2002 Carrie. Thel. genocide. It can only be modified by a subsequent norm having the same character. (2) prohibition against piracy. it is void. Ronald 3) PRINCIPAL RULES OF INTERNATIONAL LAW IN CONNECTION WITH TREATIES A. and slavery State Responsibility (1) it is the doctrine which holds a state responsible for any injury sustained by an alien within its jurisdiction. Evelyn. 2) justifies the non-performance of a treaty obligation if the subsequent condition in relation to which the parties contracted has changed so materially and unexpectedly as to create a situation in which the exaction of performance would be unreasonable.A party is not bound to perform a treaty if there has been a fundamental change of circumstances since the treaty was concluded. 3) Rebus sic stantibus may not be invoked as a ground for terminating or withdrawing from a treaty: a. this applies despite hardships on the contracting State such as conflicts between the treaty and its Constitution. absolute.e.

Evelyn. MEDIATION. the services of the conciliator were solicited by the parties in dispute. The proceedings are essentially judicial and the award is. As distinguished from mediation.an investigation of the points in question with the view that this will contribute to the solution of the problem C. ARBITRATION. F.an act which would normally be illegal but which is rendered legal by a prior illegal act committed by the State against which the reprisal is directed. CONCILIATION.: cutting off economic aid (this is lawful because there is no legal obligation to provide economic aid). He must be represented in the int'l Claim for damages by his own state (ordinarily.POLITICAL LAW PUBLIC INTERNATIONAL LAW REVIEWER & MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2002 Carrie. Settlement of Disputes 1) AMICABLE METHODS A. B. REPRISAL . B.is a lawful act which is designed to injure the wrongdoing State. Suggestions of conciliator are also not binding.g.process by which the solution of a dispute is entrusted to an impartial tribunal usually created by the parties themselves under a charter known as the compromis. GOOD OFFICES . by previous agreement. Indirect responsibility (3) Conditions for the enforcement of the doctrine of state responsibility a. Ronald b. RETORSION . it is a form of retaliation against the prior illegal act. protests and warnings) have failed. The injured alien must first exhaust all local remedies b. Ex. 7 . Gem.3rd party also actively participates in order to settle the conflict. individuals have no standing to bring a claim before international law). 2) HOSTILE/NON-AMICABLE METHODS A. Aldrich. Thel. NEGOTIATION.discussion by the parties of their respective claims and counterclaims with a view to the just and orderly adjustment. binding on the parties.3rd party actively participates in the discussion in order to reconcile the conflicting claims. D.method by which a 3rd party attempts to bring the disputing states together in order that they may be able to discuss the issues in contention. Reprisals may be used only when other means of redress (e. Suggestions of mediator are merely persuasive E. INQUIRY .

2) Basis of Extradition: a treaty. Such may be done. the Constitution must prevail. for punishment. Assuming that the extradition treaty does not allow for such rights. X argued the extradition would violate the prohibition against ex post facto laws. Is he right? A: No. the US requested for the extradition of Mark Jimenez for violations of US tax and election laws. # 139465. It is not a criminal proceeding which will call into operation all the rights of an accused guaranteed by the Bill of Rights. Pending evaluation of the extradition documents by the Philippine government. 17. The constitutional prohibition applies to penal laws only. When there is a conflict between international law obligations and the Constitution. Ronald SPECIAL TOPICS EXTRADITION 1) EXTRADITION is the surrender of a person by one state to another state where he is wanted for prosecution or. HON. 18.R. Outside of treaty. 235 SCRA 341) SECRETARY OF JUSTICE V. Evelyn. Gem. Q: The Philippines entered into an extradition treaty with another country which provided that it would apply crimes committed before its effectivity. b) Under the Political offense exception. Dissent (original decision): Under the extradition treaty. the prospective extraditee may be provisionally arrested pending the submission of the request. 2000. The country asked the Philippines to extradite X for a crime committed before the effectivity of the treaty. however. LANTION AND MARK JIMENEZ (G. The process of extradition does not involve the determination of the guilt or innocence of an accused. Oct. (Wright v. and partakes of the nature of a criminal investigation. the Constitutional right to procedural due process must override treaty obligations. overturning the Court’s previous decision in 322 SCRA 160 dated Jan. if already convicted. The extradition treaty is not a penal law. most extradition treaties provide that political and religious offenders are not subject to extradition. CA. the evaluation process is akin to an administrative agency conducting an investigative proceeding. 8 . Because of this possible consequence. His guilt or innocence will be adjudged in the court of the state where he will be extradited. ISSUE: During the evaluation stage of the extradition proceedings. there is no rule in international law compelling a State to extradite anyone. Jimenez requested for copies of the US' extradition request. as a gesture of comity.a fugitive who is extradited may be tried only for the crime specified in the request for extradition and such crime is included in the list of extraditable offenses in the treaty. Thus. Thel. 3) Principles: a) Principle of Speciality . the basic due process rights of notice and hearing are indispensable. Extradition is a proceeding sui generis. is private respondent entitled to the two basic due process rights of notice and hearing? HELD: Private respondent is bereft of the right to notice and hearing during the evaluation stage of the extradition process. Aldrich. 2000) By virtue of an extradition treaty between the US and the Philippines. The Secetary of Justice denied that request.POLITICAL LAW PUBLIC INTERNATIONAL LAW REVIEWER & MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2002 Carrie.

Gem. UK. US. in which the foreigner agrees in advance not to seek the diplomatic protection of his national State. Function: the maintenance of international peace and security. each permanent member is given a 'veto' . Recognized exceptions: 1) self-defense 2) military action taken or authorized by the UN or competent Regional organizations (such as NATO).organ charged with promoting social progress and better standards of life in larger freedom 5. 6. It is also vested with jurisdiction over matters concerning internal machinery and operations of the UN. Q: What is the "double veto"? A: In all non-procedural matters. USE OF FORCE Under Article 2(4) of the UN Charter. Russia) b) 10 non-permanent: elected for 2 year terms by the General Assembly.POLITICAL LAW PUBLIC INTERNATIONAL LAW REVIEWER & MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2002 Carrie. a permanent member may exercise a 'double veto' when it vetoes any attempt to treat a question as procedural. CALVO CLAUSE A CALVO CLAUSE is a provision inserted in contracts. Evelyn. ECONOMIC AND SOCIAL COUNCIL .a Security Council decision is ineffective if even one permanent member votes against it. 9 .organ charged with administration of Int'l Trusteeship System. Aldrich. The veto does not ordinarily apply to Procedural matters. TRUSTEESHIP COUNCIL . France. 3.judicial organ of the UN.CHIEF ADMINISTRATIVE ORGAN OF THE UN 4. 2. all member States are bound to refrain from the threat or use of force against the territorial integrity or political independence of a State. INTERNATIONAL COURT OF JUSTICE . and then proceed to veto any draft resolution dealing with that question. SECRETARIAT . SECURITY COUNCIL Composition: 15 members: a) 5 Permanent Members (China. However. Ronald UNITED NATIONS ORGANS 1. Thel. GENERAL ASSEMBLY Composition: All members of the UN (as of 1996: 185 member States) Function: The GA may discuss any question or matter within the scope of the Charter or relating to the powers and functions of any other organ.

The determination by the executive department is considered a political question that is conclusive upon Philippine Courts. the interpretation of a treaty. International Courts have disregarded such clauses. Occasionally. 36(2). under the 'optional clause' (art. in order to uphold their dignity as representatives of their respective states and to allow them free and unhampered exercise of their functions. Nowadays. any question of international law c. the ICJ can operate only on the basis of the consent of States to its jurisdiction. under customary international law the doctrine of absolute state immunity applied. the rule is to adopt a doctrine of qualified immunity -. INTERNATIONAL CONTRACTS Usually. Such may take the form of a special agreement between States to submit an existing dispute before the Court (i. if established. general principles of law. Thel. agreements between States and foreign corporations contain stipulations as to which national legal system governs the contract.that is. such contracts are placed not under any single system of municipal law. compromis). covering all areas of State activity and recognizing only very narrow exceptions. THE INTERNATIONAL COURT OF JUSTICE 1) "Optional Clause" of the ICJ: As a rule. in all legal disputes concerning: a. DIPLOMATIC IMMUNITY Diplomatic Immunity is a principle of customary international law that grants immunity to diplomatic representatives. The reason for concluding these so-called internationalized contracts is to establish a balance between the parties and prevent the State party from evading its obligations under the contract by changing its own internal law. immunity is claimed by request of the foreign state for endorsement by the Department of Foreign Affairs. not in respect of their commercial acts (acts jure gestionis). in case of powerful multinational companies. existence of any fact which. immunity is granted to foreign States only in respect of their governmental acts (acts jure imperii). would constitute breach of international obligation.POLITICAL LAW PUBLIC INTERNATIONAL LAW REVIEWER & MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2002 Carrie. but under international law. ICJ Statute). in relation to any other State accepting the same obligation. Gem. Aldrich. b. STATE IMMUNITY (JURE IMPERII and JURE GESTIONIS) Originally. however. This is mostly secured by an arbitration clause referring disputes under the agreement to an international body. In the Philippines. and 10 . and waiver from an individual does not bind his State. or the provisions of the contract itself. as the right to diplomatic protection is a right which belongs to a State.e. Evelyn. a State may declare in advance that they recognize the jurisdiction of the Court as compulsory ipso facto and without need of special agreement. However. Ronald In general.

Evelyn.equity overrides all other rules of law. the Court always takes past decisions into account. nature or extent of reparation to be made for breach of international obligation. in practice. Q: What does it mean to decide a case EX AEQUO ET BONO? A: It is to rule in justice and fairness -. 11 . ICJ Statute). The ICJ has no power to decide a case ex aequo et bono. however. Gem. ICJ Statute]. 38(2). Q: Who has standing before the ICJ? A: Only States may be parties in contentious proceedings before the ICJ (art 34. Thel. Aldrich. 2) STARE DECISIS does not apply to the ICJ. unless all parties agree thereto [art. previous decisions have no binding force. Ronald d.POLITICAL LAW PUBLIC INTERNATIONAL LAW REVIEWER & MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2002 Carrie. Under the statute of the Court.