Você está na página 1de 18

PUBLIC INTERNATIONAL LAW

Dean Hilario Justino F. Morales


01.
What is Public International Law?
ANSWER: Public International law is that branch of public law consisting of a body of legal principles, norms and
processes which regulates the relations of States and other international persons and governs their conduct
affecting the interest of the international community as a whole. It is used interchangeably with law of nations.
02.
Distinguish International law from Municipal law
ANSWER:
1. -IL is not imposed but adopted by states as a common rule of action among themselves.
-ML is issued by a political superior for observance by those under its authority;
2. -IL is derived from such sources as international customs, conventions or general principles of law.
-ML consists mainly of enactments from law-making authority of the state;
3. -IL applies to relations inter se of states and other international persons.
-ML regulates the relations of individuals among themselves or with their own state;
4. -in IL they are resolved through state-to-state transactions.
-Violations of ML are redressed through local administrative and judicial processes;
5. -in IL there is collective responsibility because it attaches directly to the state and not to its nationals.
-Breaches of ML entail only individual responsibility;
Concepts
03.
What is a Jus Cogens norm?
ANSWER: A Jus Cogens norm is a peremptory norm of general international law accepted and recognized by the
international community of States as a whole as a norm from which no derogation is permitted and which can be
modified only by a subsequent norm of general international law of the same character. It is by its nature binding
on every State. The following are norms considered jus cogens in character: 1) Laws on genocide 2) Principle
of non-racial discrimination 3) Principle of self determination 4) Laws penalizing crimes against humanity 5)
prohibition against slavery, slave trade 6) Laws penalizing piracy.
04.
What is obligation erga omnes?
ANSWER: Erga Omnes is an obligation of every State towards the international community as a whole. All states
have a legal interest in its compliance, and thus all States are entitled to invoke responsibility for breach of such
an obligation. By the nature of jus cogens norms they embody erga omnes obligations. Even as all erga omnes
obligations may not be in the nature of jus cogens norms, jus cogens norms necessarily embody erga omnes
obligations. Examples of erga omnes obligations are outlawing of acts of aggression, and of genocide, as also
from the principles and rules concerning the basic rights of the human person, including protection from slavery
and racial discrimination.
05.
What is the concept of Aeguo Et Bono?
ANSWER: This for the application of the principle of what is good and just also known as the rule on equity. It is
subject to the requirement that parties to the dispute have to agree thereto as provided in Article 38 (1) of the
Statute of the international Court of Justice.
06.
What is the Supremacy Clause under Article 103 of the UN Charter?
ANSWER: The Supremacy Clause under Article 103 of the UN Charter provides that in the event of a conflict
between the obligations of the Members of the UN under the present UN Charter and their obligations under any
other international agreements, their obligation under the present Charter shall prevail.
Examples of obligations of Members of the UN under the present UN Charter are: sovereign equality of
States, the duty to settle international disputes in a peaceful manner, prohibition against the threat or use of force
against the territorial integrity or political independence of any state, duty to fulfill in good faith the obligations
assumed by them in accordance with the present Charter, universal respect for, and observation of, human rights
and fundamental freedoms without distinction as to race, sex, language or religion.
07.
Distinguish hard law from soft law.
ANSWER: Hard law is used to designate a norm or rule of conduct accepted and recognized by the
international community of states as a whole, as a source of law binding on them. It produces obligations which
when breached gives rise to international responsibility and, consequently, to reparation.
Soft law has no binding force and pertains to a statement or declaration of principles with moral force
on the conduct of states but no normative character and without intent to create enforceable obligations. Soft
law is an expression of non-binding norms, principles and practices that influences state behavior. It does not fall
into any of the categories of international law set forth in Article 38, Chapter III of the 1946 Statute of the
International Court of Justice. Certain declarations and resolutions of the UN General Assembly fall under this
category. Most notable is the UN Declaration of Human Rights which the Supreme Court enforced in various
cases. It is resorted to in order to reflect and respond to the changing needs and demands of constituents of
certain international organizations like the World Health Organization. (Pharmaceutical and Health care
Association of the Philippines vs. Duque III, 535 SCRA 265)

PUBLIC INTERNATIONAL LAW

/P 02

08.

Is the World Health Assembly (WHA) Resolutions, absolutely prohibiting advertisements and
promotions of breast milk substitutes considered as part of the law of the land?
ANSWER: NO. Unlike what has been done with the International Code of Marketing of Breastmilk Substitutes
(ICMBS) whereby the legislature enacted most of the provisions into law which is the Milk Code, the subsequent
WHA Resolutions have not been adopted and cannot be considered as part of the law of the land that can be
implemented by executive agencies without the need of a law enacted by the legislature. Consequently,
legislation is necessary to transform the provisions of the WHA Resolutions into domestic law. (Ibid.)
09.
What is customary international law?
ANSWER: Custom or customary international law means "a general and consistent practice of states followed by
them from a sense of legal obligation (opinion juris)," which statement contains the two basic elements of custom:
the material factor, that is, how states behave, and, the psychological or subjective factor, that is, why they
behave the way they do. Customary international law is deemed incorporated in our domestic system. (Ibid.)
10.
What do you understand by the phrase "generally accepted principles of international law"?
ANSWER: "Generally accepted principles of international law" refers to the norms of general or customary
international law which are binding on all states, i.e., renunciation of war as an instrument of national policy, the
principle of sovereign immunity, a person's right to life, liberty and due process, and pacta sunt servanda, among
others. They are primary sources of international law because they have the character of jus rationale and are
valid through all kinds of human societies(Ibid.)
Sources of International Law
11.
What are the sources of international law?
ANSWER:
1.
Primary Sources -They are formal sources because they are the methods by which norms of
international law are created and recognized.
a.
International Treaties and Conventions, whether general or particular, establishing rules
expressly recognized by the contesting state. They are sources of international law only when
they have been concluded by numerous states for the purpose of confirming, establishing or
abolishing a rule of international law. Example: Vienna Convention on the Law of Treaties.
*Treaties may be considered as direct source of international law when concluded by a
sizeable number of states, and is reflective of the will of the family of nations.
*Bilateral treaties are sources of particular international law but may become primary sources
when different contract treaties are of the same nature, containing practically uniform
provisions, and are concluded by substantial number of States.
b.

International Customs, as evidence of a general practice accepted as law. It is a set of


practices which has grown up between states and has come to be accepted as binding by mere
fact of persistent usage over a long period of time. They preclude rules which are binding only
on a few or a small number of States. Examples: prohibition against slavery and the prohibition
against torture
*Elements of International Customs:
1) General practice by a number of states, characterized by uniformity and consistency
2) Opinio juris, or recognition of that practice as a legal norm and therefore obligatory.
3) Duration- repeated over a considerable period of time

c.

2.

General Principles of Law - these are rules derived mainly from natural law, which are
observed by the majority of civilized states because they are believed to be good and just.
Examples: due process, res judicata, prescription, estoppel, pacta sunt servanda

Secondary Sources they are subsidiary means for the determination of rules of law. They are to be
regarded merely as authoritative evidence of the state of law.
a.
Decisions of International Tribunals, and
b.
Teachings and writings of highly qualified publicists
Requisites: 1) writings must be fair and impartial, and
2) must be an acknowledged authority in the field.
The application of judicial decisions and teachings of publicists by the International
Court of Justice is subject to two limitations:
1)
it is restricted to the parties to the dispute and is not extended to any other case,
including a case involving the same parties, and
2)
these decisions may also be applied as subsidiary means for the determination
of rules of law, which is quite distinct from the status of sources of law. They serve to
evidence or ascertain the existence or status of a principle as law.

PUBLIC INTERNATIONAL LAW

/P 03

12.
Are resolutions and declarations of the UN General Assembly a source of international law?
ANSWER: YES. The emerging view is that resolutions and declarations of the General Assembly have obligatory
effect upon member States and are thus considered a source of international law.. This thesis finds support in
Article 3(10 of the UN Charter empowering the General Assembly, inter alia, to initiate studies and make
recommendations for the purpose of encouraging the progressive development of international law or its
codification. Thus, if a resolution or declaration of the General Assembly is accepted by the majority of the UN
members, then the resolution or declaration develops into a customary law which under Article 38 of the Statute
of the ICJ, is considered as primary source of international law.
13.
How may international law become a part of domestic law?
ANSWER:
1.
Doctrine of Incorporation- The Incorporation Clause (Article II, Section 2, PC) prescribes that the
Philippines adopts the generally accepted principles of international law as a part of the law of the land.
It is a formal recognition of general international law a part of the law of the land. The incorporation
method applies when, international law is deemed to have the force of domestic law. No further
legislative action is needed to make such rules applicable in the domestic sphere.
For these principles of international law to become part of national law they must be of
customary or general international law, i.e. binding on all States. It further decrees that rules of
international law are given equal standing with, but are not superior to, national legislative enactments.
"Generally accepted principles of international law" refers to the norms of general or customary
international law which are binding on all states, i.e., renunciation of war as an instrument of national
policy, the principle of sovereign immunity, a person's right to life, liberty and due process, and pacta
sunt servanda, among others. They are primary sources of international law because they have the
character of jus rationale and are valid through all kinds of human societies. (Pharmaceutical, supra )
2.

Doctrine of Transformation- (either through legislative enactment or under the Treaty Clause) This
doctrine holds that the generally accepted rules of international law are not per se binding upon the state
but must first be transformed into domestic law through a constitutional mechanism such as local
legislation by the lawmaking body. Treaties may also become part of the law of the land pursuant to the
Treaty Clause (Article VII, Section 21, PC) which is a process of transforming a treaty or international
convention into national law.
*A customary norm becomes part of the law of the land by virtue of the Incorporation Clause. A
customary norm is incorporated into the national law under the Incorporation Clause.
*A conventional rule is transformed into a valid and effective domestic clause under the Treaty Clause
of the Constitution.
To be internalized into national law and before they may be applied in Philippine jurisdiction,
norms and principles of objective international law must comply with the foregoing methods of
internalization. Thus, treaties or conventional international law must go through a process prescribed by
the Constitution for it to be transformed into municipal law that can be applied to domestic conflicts.
In Pharmaceutical, supra, it was ruled that the World Health Assembly (WHA) Resolutions,
absolutely prohibiting advertisements and promotions of breast milk substitutes are not considered as
part of the law of the land. Unlike what has been done with the International Code of Marketing of
Breastmilk Substitutes (ICMBS) whereby the legislature enacted most of the provisions into law which is
the Milk Code, the subsequent WHA Resolutions have not been adopted and cannot be considered as
part of the law of the land that can be implemented by executive agencies without the need of a law
enacted by the legislature. Consequently, legislation is necessary to transform the provisions of the
WHA Resolutions into domestic law.

14.
How are conflicts between International law and Municipal Law resolved?
ANSWER:
1. The basic rule is to reconcile or harmonize the apparent conflict, thereby giving effect to both.
2. If the conflict is irreconcilable, apply the law of the forum (lex forei):
a) where the conflict is elevated to an international tribunal, then international law is more paramount
because international law provides the standard by which to determine the legality of a States conduct;
b) where the controversy is brought before a local tribunal, the tribunal will uphold the superiority of its
municipal law.
3. In Philippine jurisdiction:
a. Philippine Constitution vs international law principle: the Constitution prevails.
Rationale: Art. VIII, Sec 5(2) (a) of the Philippine Constitution empowers the Supreme Court to declare a
treaty or executive agreement unconstitutional. Also in Secretary of Justice vs. Lantion,
GR No.139465, January 18, 2000, it was held that in states where the Constitution is the highest law of
the land, both statutes and treaties may be invalidated if they are in conflict with the Constitution.
b. Exercise of police power: the municipal law prevails.

PUBLIC INTERNATIONAL LAW

/P 04

c. If International Law (treaties or conventions) is in conflict with a statute: A treaty has two aspects- as an
international agreement between states, and as a municipal law for the people of each state to observe.
Under the Doctrine of Incorporation the rules of international law are given equal standing with, but are
not superior to, national legislative enactments in the municipal sphere. Hence, a treaty may repeal a
statute and a statute may repeal a treaty. Thus, the principle of lex posterior derogat priori, that which
comes last in time will be upheld by the local tribunal. The Constitution also authorizes the nullification of
a treaty not only when it conflicts with the fundamental law, but also when it runs counter to an act of
Congress. (Lim vs Arroyo, GR No. 151455 April 11, 2002)
15.
What may be subject of Public International Law?
ANSWER: A subject of international law is an entity that has rights and responsibilities under the law. It has an
international personality that it can directly assert rights and be held directly responsible under the law of nations.
It can be a proper party in transactions involving the application of the law of nations among members of
international communities. The subjects are:
1.
Direct subjects- a) States b) colonies and dependencies c) mandates and trust territories;
belligerent communities d) The Vatican e) the United nations; international administrative bodies and
f) to a certain extent, individuals.
While international law recognizes the individual natural person as subject, it is not however by
reason of general international law or international custom. His personality is derived from the collective
will of States expressed in an international convention. The individual becomes a subject of international
law by reason of conventional international law, not on account of customary international law.
(Magallona, Merlin M., The Supreme Court and International Law: Problems and Approaches in
Philippine Practice. UP Law Center Institute of International Legal Studies, 2010)
2.
Indirect subjects a) international organizations b) individuals; and c) corporations.
3.
Incomplete subjects a) protectorates b) federal states c) mandated and trust territories
16.
What are objects of international law?
ANSWER: 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 intermediate agency.
17.

What is the concept of association under international law? What are the requisites for an
association to be lawful?
ANSWER: An association under international law is a formal arrangement between a non-self-governing territory
and an independent State whereby such territory becomes an associated State with internal self-government,
but the independent state is responsible for foreign relations and defense. An association is formed between
two states of unequal power voluntarily establish durable links. The associate delegates certain responsibilities to
the other, the principal, while maintaining its status as a state. It is an association between sovereigns. The
associated state arrangement has usually been used as a transitional device of former colonies on their way to
full independence. (Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on
Ancestral Domain, 568 SCRA 402)
For an association to be lawful, it must be subject to UN approval upon compliance with the following
general conditions prescribed in a UN General Assembly Resolution: 1) the population must consent to the
association and 2) the association must promote the development and well-being of the dependent state or the
non-self governing territory.
State Sovereignty
18.
How is state sovereignty defined in International Law? Is State sovereignty absolute?
ANSWER: Sovereignty signifies the right to exercise the functions of s State in regard to a portion of the globe to
the exclusion of any other State. It is the principle of exclusive competence of a state in regard to its own territory
(The Island of Las Palmas Case, 1928) State sovereignty is the ability of a state to act without external controls
on the conduct of its affairs (Fox, Dictionary of International and Comparative Law)
No. State sovereignty is not absolute It is subject to limitations imposed by membership in the family of
nations and limitations imposed by treaty stipulations. (Tanada vs Angara, 272 SCRA)
19.

What is the principle of auto-limitation? What is the relationship between reciprocity and the
principle of auto-limitation?
ANSWER: The principle of auto-limitation means that a State may by its express or implied consent submit to a
restriction of its sovereign rights There may thus be a curtailment of what otherwise is a power plenary in
character. (Reagan vs CIR, 30 SCRA 968, Tanada vs Angara, 272 SCRA 18)
By reciprocity, States grant to one another rights or concessions, in exchange for identical, or
comparable duties, thus acquiring a right as an extension of its sovereignty and at the same time accepting an
obligation as a limitation to its sovereign will, hence, a complementation of reciprocity and auto-limitation.

PUBLIC INTERNATIONAL LAW

/P 05

20.

What is the Doctrine of Sovereign Immunity of States? What are the basis of immunity from suits
of a foreign state?
ANSWER: The Doctrine of Sovereign Immunity of States is a universally recognized principle which exempts a
state from the jurisdiction of other States including the right not to be sued in the courts of another without its
c o n s e n t
o r
u n l e s s
c o n s e n t
i s
w a i v e d .
State immunity includes not only exemption of the States property from taxation or attachment wherever the
property is located but also the exemption of its public vessels from being searched, detained, seized by any
State. The basis of immunity from suits of a foreign state are the twin principles of independence and equality of
states pursuant to the maxim par parem habet non imperium (an equal has no dominion over an equal)
(Republic of Indonesia vs. Vinzon, 405 SCRA 126)
State Immunity from Suit
21.
What is State Immunity from Suit? Does it apply to foreign governments? Can the right to state
immunity be waived?
ANSWER: State immunity from suit means that the state may not be sued without its consent. But consent to suit
does not include consent to attachment of property for foreign sovereign. The doctrine applies to foreign
government. When a foreign state wishes to invoke sovereign immunity, it secures an executive endorsement of
its claim of immunity from the Department of Foreign Affairs, and the determination made by the Executive
Department is a political question which is conclusive on Philippine courts. It may also file a motion to dismiss on
the ground of lack of jurisdiction over its person. The right to state immunity may be waived but it does not mean
that it is admitting liability. (Philippine Rock Industries, Inc. vs. Board of Liquidators, 180 SCRA 71) It means that
the State in allowing itself to be sued is merely giving the plaintiff the opportunity to prove its case but the State
does not waive its lawful defenses.

The waiver of State immunity under the Visiting Forces Agreement (VFA) with the USA
pertains only to criminal jurisdiction and not to special civil actions such as the present petition
for issuance of a writ of Kalikasan. In fact, it can be inferred from Section 17, Rules 7 of the
Rules that a criminal case against a person charged with a violation of an environmental law
to be filed separately. (Arigo v. Swift, GR No.206510, September 2014.)
22.
What are the two kinds of sovereign immunity?
ANSWER: The two kinds of sovereign immunity are 1) absolute immunity and 2) restrictive immunity. Under
absolute immunity, all acts of state, be they governmental or proprietary, are protected by sovereign immunity.
Under restrictive immunity, a State liable to suit only in the exercise of its proprietary acts and does not apply to
acts performed in its sovereign or governmental function.
23.
What do you understand by the principle of Restrictive State Immunity from Suit?
ANSWER: State immunity from suit extends only to governmental acts (jure imperii) and does not cover private,
commercial and proprietary act (jure gestiones). The restrictive application of State immunity is proper only when
the proceedings arise out of commercial transaction of the foreign sovereign, its commercial activities or
economic affairs. Stated differently, a State may be said to have descended to the level of an individual and can
thus be deemed to have tacitly given its consent to be sued only when it enters into business contracts. It does
not apply where the contracts relate to the exercise of its sovereign function. Thus, where the questioned
transaction dealt with the improvements on the wharves in the naval station at Subic Bay, the projects are an
integral part of the naval base which is devoted to the defense of both the US and the Philippines, indisputably a
function of government of the highest order; they are not utilized for, nor dedicated to commercial or business
purposes. (USA vs. Ruiz, 136 SCRA 487 and DA vs. NLRC, 227 SCRA 693)
24.
Who are covered by the Doctrine of State Immunity? State its rationale.
ANSWER: A state enjoys immunity from the exercise of jurisdiction (legislative, executive, judicial) by another
state, unless it has given consent, waived its immunity, or voluntarily submitted to the jurisdiction of the court
concerned. Also, the states immunity extends to the Head of State, who is the personification of the state, and to
diplomatic representatives, in order to uphold their dignity as representatives of their respective states and to
allow them free and unhampered exercise of their functions.
Likewise, under Article 105 of the UN Charter, the United Nations, its Organs, Specialized Agencies and
other International organizations and its Officers shall enjoy privileges and immunities as are necessary for the
independent exercise of their functions. Rationale: to secure them legal and practical independence in fulfilling
their duties (Lasco vs. UN revolving Fund for Natural Resources Exploration, 241 SCRA 681) and to shield the
affairs of international organizations, in accordance with international practice, from political pressure or control
by the host country, and to ensure the unhampered performance of their functions. (International Catholic
Migration vs. Calleja, 190 SCRA 130)

PUBLIC INTERNATIONAL LAW


25.

/P 06

When is a suit against a public official deemed to be a suit against the State?

ANSWER: While the doctrine of state immunity appears to prohibit only suits against the state without its consent,
it is also applicable to complaints filed against public officials for acts allegedly done in the performance of their
official duties. The rule is that the suit must be regarded as one against the State where the satisfaction of the
judgment against the public official concerned will require the State to perform a positive act, such as
appropriation of the amount necessary to pay the damages awarded to the plaintiff.
The rule does not apply where the public official is clearly being sued for acts that are unlawful and
injurious to the rights of others. Public officials are not exempt, in their personal capacity, from liability arising from
the acts committed in bad faithNeither does it apply where the public official is clearly being sued not in his
official capacity but in his personal capacity, although the acts complained of may have been committed while he
occupied a public position.
As regards petitioner DOH, the defense of immunity from suit will not avail despite its being an
unincorporated agency of the government, for the only causes of action directed against it are preliminary
injunction and mandamus. Under Section 1, Rule 58 of the Rules of Court, preliminary injunction may be directed
against a party or a court, agency or a person. Moreover, the defense of state immunity does not apply in causes
of action which do not seek to impose a charge or financial liability against the State. (Lansang vs. CA, 326 SCRA
259 and DOH vs. Pharmawealth, Inc., GR No. 169304, March 13, 2007)
26.

The Republic of Indonesia represented by its Minister Counsellor entered into a Maintenance
Agreement with JV, sole proprietor of Vinzon Trade and Services. The agreement stated that JV
maintain specified equipment at the embassy Main Building, including the official residence of
the Ambassador. But prior to the expiration of the 4-year contract, the Indonesian Embassy
terminated the agreement. JV filed a complaint against the Republic of Indonesia, the
Ambassador and the Minister Counsellor, who in turn filed a motion to dismiss invoking
sovereign immunity from suit. JV filed an Opposition contending that:
(1) the Republic of Indonesia expressly waived its immunity because of a paragraph in the
contract stating that any legal action arising out of the agreement shall be settled according to
the laws of the Philippines and by a specified court in the Philippines;
(2) that the actual physical maintenance of the premises of the diplomatic mission is no longer a
sovereign function of the State; and
(3) that the Ambassador and the Minister Counsellor can be sued and held liable in their private
capacity for tortuous acts done with malice and bad faith. Decide.

ANSWERS: (1) The existence alone of the paragraph in the contract is not necessarily a waiver of sovereign
immunity from suit. The aforesaid provision contains language not necessarily inconsistent with sovereign
immunity. On the other hand, such provision may also be meant to apply where the sovereign party elects to sue
in the local courts, or otherwise waives its immunity by any subsequent acts. The applicability of Philippine laws
must be deemed to include Philippine laws in its totality, including the principle recognizing sovereign immunity.
Hence, the proper court may have no proper action, by way of settling the case, except to dismiss it. Likewise,
the Solicitor General states that it was not a waiver of their immunity from suit but mere stipulation that in the
event they do waive their immunity, Philippine laws shall govern the resolution of any legal action arising out of
the agreement and the proper court in Makati City shall be the agreed venue thereof.
(2)
There is no dispute that the establishment of a diplomatic mission is an act jure imperii. A sovereign
state does not merely establish a diplomatic mission and leave it at that; the establishment of a diplomatic
mission encompasses its maintenance and upkeep of air conditioning units, generator sets, electrical facilities,
water heaters and water pumps of the Indonesian Embassy and the official residence of the Indonesian
Ambassador.
(3)
The acts of the Ambassador and the Minister Counsellor in terminating the agreement is not covered by
the exceptions provided in Article 31 of the Vienna Convention which provides:
1.
A diplomatic agent shall enjoy immunity from criminal jurisdiction of the receiving state. He shall
also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
(a)
a real action relating to private immovable property situated in the territory of the receiving
state, unless he holds it on behalf of the sending State for the purpose of the mission;
(b)
an action relating to succession in which the diplomatic agent is involved as executor,
administrator, heir or legatee as a private person and not on behalf of the sending State;

an action relating to any professional or commercial activity exercised by the diplomatic agent
in the receiving State outside his official functions.
xxx xxx xxx
The said act may fall under subparagraph (c) thereof, but said provision clearly applies only to a
situation where the diplomatic agent engages in any professional or commercial activity outside official functions,
which is not the case herein. (The Republic of Indonesia vs. James Vinzon, GR No. 154705, June 26, 2003)

PUBLIC INTERNATIONAL LAW

/P 07

27.

Are officers of the Asian Development Bank, including experts and consultants performing
mission for the Bank, entitled to immunity from legal process?
ANSWER: YES. But the immunity granted to officers and staff of the ADB is not absolute. It is limited to acts
performed in an official capacity, except when the Bank waives the immunity. The immunity cannot cover the
commission of a crime such as slander or oral defamation in the name of official duty. Officials of international
organizations enjoy functional immunity, that is, only those necessary for the exercise of
their functions of the organization and the fulfilment of its purposes. In other words, the officials and employees of
the ADB are subject to the jurisdiction of the local courts for their private acts, notwithstanding the absence of a
waiver of immunity. (Liang vs. People, 355 SCRA 125)
Act of State Doctrine
28.
What is the so-called Act of State Doctrine?
ANSWER: A doctrine emanating from the right of equality among nations which means that a State cannot, in
anyway, question the validity of the official acts of another state insofar as these acts are performed within the
sphere of the latter States own jurisdiction and not contrary to accepted rules of public international law. The act
of state doctrine is one of the methods by which States prevents their national courts from deciding disputes
which relate to the internal affairs of another State, the other two being immunity and non-justiciability. It is an
avoidance technique that is directly related to the State's obligation to respect the independence and equality of
other States by not requiring them to submit to adjudication in a national court or to settlement of their disputes
without their consent. It requires the forum court to exercise restraint in the adjudication of disputes relating to
legislative or other governmental acts which a foreign State has performed within its territorial limits. The
parameters of the use of the act of state doctrine were clarified in Banco Nacional de Cuba vs. Sabbatino (378
U.S. 398; 84 S.Ct. 293) There, the U.S. Supreme Court held that international law does not require the
application o f this doctrine nor does it forbids the application of the rule even if it claimed that the act of
state in question violated international law. Moreover, due to the doctrines peculiar nation-to-nation character, in
practice the usual method for an individual to seek relief is to exhaust local remedies and then refer to the
executive authorities of his own state to persuade them to champion his claim in diplomacy or before an
international tribunal. (PCGG vs. Sandiganbayan, 530 SCRA 13)
Right of Legation
29.
What is agreation
ANSWER: It is a practice of the States before appointing a particular individual to be the chief of their diplomatic
mission in order to avoid possible embarrassment. It consists of two acts: The enquiry, usually informal,
addressed by the sending State regarding the acceptability of an individual to be its chief of mission; and the
agrement also informal, by which the receiving State indicates to the sending State that such person, would be
acceptable.
30.
What is letter of credence?
ANSWER: This is the document by which the envoy is accredited by the sending State to the foreign State to
which he is being sent. It designates his rank and the general object of his mission, and asks that he be received
favourably and that full credence be given to what he says on behalf of his State.
31.
What is a letter patent?
ANSWER: The appointment of a consul is usually evidenced by a commission, known as letter patent, issued by
the appointing authority of the sending State and transmitted to the receiving State through diplomatic channels.
32.
What are the privileges and immunities of diplomatic representatives?
ANSWER:
1)
Personal inviolability members of the diplomatic mission shall not be liable for any form of arrest or
imprisonment
2)
Inviolability of premises - premises, furnishings and means of transport shall be immune from search,
seizure, attachment or execution.
3)
Diplomatic agents are immune from criminal civil or administrative liability
4)
Archives or documents shall be inviolable
5)
A diplomatic agent is exempted to give evidence as a witness
6)
Receiving state shall protect official communication and official correspondence of diplomatic mission
7)
Exemption from general duties and taxes including custom duties with certain exceptions.
8.
Receiving State shall ensure all members of diplomatic mission freedom of movement and travel.
9.
Use of flag and emblem of sending State on premises of receiving State
NOTE: For Exceptions to the privileges and immunities, see Question 26 (3) above.
33.
Are consuls entitled to immunities and privileges?
ANSWER: YES, but not to the same extent as those enjoyed by diplomatic officials. Like diplomats, consuls are
entitled to:
1) inviolability of their correspondence, archives and other documents; 2) freedom of movement
and travel; 3)immunity from jurisdiction for acts performed in their official capacity; and 4) exemption from certain
taxes and custom duties. However, consuls are liable to: 1) arrest and punishment for grave offenses; and 2)
may be required to give testimony, subject to certain exceptions. The consular offices are immune only: 1) with
respect to the part where the consular work is being performed; and may be expropriated by the receiving state
for purposes of national defense or public utility.

PUBLIC INTERNATIONAL LAW

/P 08

Extradition & Deportation


34.
What is the difference if any between extradition and deportation?
ANSWER: The following are the differences between extradition and deportation:
1) According to purpose, extradition is effected for the benefit of the state to which the person being extradited will
be surrendered because he is a fugitive criminal in that state, while deportation is effected for the protection of the
state expelling an alien because his presence is not conducive to the public good.
2) According to basis, extradition is effected on the basis of an extradition treaty or upon the request of another
state, while deportation is the unilateral act of the state expelling an alien.
3) According to its effect upon the alien, in extradition, the alien will be surrendered to the state asking for his
extradition, while in deportation, the undesirable alien may be sent to any state willing to accept him.
35.
What is the principle of double criminality? What is the purpose of the principle?
ANSWER: Under the principle of double criminality, extradition is available only when the act is an offense in the
two countries involved in extradition. The principle of double criminality is satisfied even if the act was
not punishable in the requested state at the time of its occurrence if it was criminal at the time the request was
made.
The purpose of the principle of double criminality is to ensure each state that it can rely on reciprocal
treatment and that no state will use its processes to surrender a person for contract which it does not characterize
as criminal.
36.
State A and State B entered into an extradition treaty, which provided that extradition may be
granted irrespective of the date when the offense was committed. State A asked that the accused be
extradited for swindling and perjury committed before the treaty took effect. Accused argued that his
extradition for offenses committed before the effectivity of the extradition treaty violates the prohibition
against ex post facto laws. Is the contention of the accused legally tenable?
ANSWER: NO. The prohibition against ex post facto law applies to penal laws only. The extradition treaty is not a
criminal statute. (Wright vs. CA, 235 SCRA 341)
37.
Discuss the procedure for extradition.
ANSWER: Upon receipt of the petition for extradition and its supporting documents, the judge must study them
and make, as soon as possible, a prima facie finding whether (a) they are sufficient in form and in substance, (b)
they comply with the Extradition Treaty and Law, and (c) the person sought is extraditable. At his discretion, the
judge may require the submission of further documentation, or may personally examine the affiants and
witnesses of the petitioner. If, in spite of this study and examination, the petition may be dismissed at the
discretion of the judge.
On the other hand, if the presence of prima facie case is determined, then the magistrate must
immediately issue a warrant for the arrest of the extradite, who is at the same time summoned to answer the
petition and to appear at scheduled summary hearings. Prior to the issuance of the warrant, the judge must
not inform or notify the potential extradite of the pendency of the petition, lest the latter be given the opportunity to
escape and frustrate the proceedings.
After a potential extradite has been arrested or placed under the custody of the law, bail may be applied
for and granted as an exception, only upon a clear and convincing showing (1) that, once granted bail, the
applicant will not be a flight risk or a danger to the community and (2) that there exist special, humanitarian or
compelling circumstances including, as a matter of reciprocity, those cited by the highest court in the requesting
state when it grants provisional liberty in extradition cases therein. (Government of the United States of America
vs. Hon. Purganan, GR No. 148571, September 44, 2002)
38.

Is the right to due process guaranteed in extradition proceedings?

ANSWER: YES. Potential extraditees are entitled to the rights of due process and to fundamental fairness. Due
process does not always call for a prior opportunity to be heard. A subsequent opportunity is sufficient due to the
flight risk involved. Indeed, available during the hearings on the petition and the answer is the full chance to be
heard and to enjoy fundamental fairness that is compatible with the summary nature of extradition. (Government
of the United States of America vs. Hon. Purganan, GR No. 148571, September 44, 2002)
Right to Bail and Due Process in Extradition Proceedings
39.
Is the constitutional provision on the right to bail under Section 14 of the Constitution as well as
Section 114 of the Rules of Court applicable to extradition cases? Is the right to due process
available to potential extraditees?
ANSWER: In Government of the United States of America vs. Hon. Purganan, GR No. 148571, September 44,
2002, it was held that the said provisions apply only when a person has been arrested and detained for violation
of Philippine criminal laws. It does not apply to extradition proceedings because extradition courts do not render
judgments of conviction or acquittal. Extradition proceedings are separate and distinct from the trial for the
offenses for which the respondent is charged. He should apply for bail before the courts trying the criminal cases
against him, not before the extradition court.

PUBLIC INTERNATIONAL LAW

/P 09

NEW RULING: However, in Government of Hongkong Special Administrative Region vs. Judge Olalia,
GR 153675, April 19, 2007, the Supreme Court ruled that a potential extraditee may be granted bail on the basis
of clear and convincing evidence that the person is not a flight risk and will abide with all the orders and
processes of the extradition court. While our extradition law does not provide for the grant of bail to an extradite,
there is no provision prohibiting him or her filing a motion for bail, a right guaranteed not only by the Constitution,
but also by international convention, to which the Philippines is a party. The Philippines, being a signatory to the
1996 UN General Assembly which adopted the International Convention on Civil and Political Rights, is under
obligation to make available to every person under detention such remedies which safeguard their fundamental
rights to liberty. If bail can be granted in deportation cases, there is no justification why it should not also be
allowed in extradition cases. Likewise, considering that the Universal Declaration of Human Rights applies to
deportation cases, there is no reason why it cannot be invoked in extradition cases. After all, both are
administrative proceedings where the innocence or guilt of the person detained is not an issue.
40.

If there is no extradition treaty between the state of refuge and the state seeking the fugitives
return, how may the latter acquire jurisdiction over him? Explain.
ANSWER: The state may still secure his surrender, but not as a matter of right. In the interest of international
comity or courtesy, the state of refuge may accede to the formers request and surrender the fugitive to it.
41.
What is the principle of asylum? Does this principle apply in the Philippines?
ANSWERS: This is the power of the state to allow an alien who has sought refuge from prosecution or
persecution to remain within the territory and under its protection. This has never been recognized as a principle
in international law. Asylum may either be: 1) Territorial, where it exists only if stipulated in a treaty, or justified by
established usage and depends on the liberal attitude of the receiving state on grounds of territorial supremacy,
or 2) Diplomatic, if granted only by virtue of treaty stipulation, or where established usage allows it, or when the
life or liberty of the person is threatened by imminent violence.
Generally, diplomatic asylum in the Philippines cannot be granted except to members of the official or
personal household of diplomatic representatives. On humanitarian grounds, however, refuge may be granted to
fugitives whose lives are in imminent danger from mob violence but only during the period when active danger
persists.
Treaties
42.
May a treaty or conventional rule qualify as a norm of jus cogens character?
ANSWER: NO. A treaty or conventional rule may not qualify as a jus cogens because such norm is binding on all
states, whereas a treaty rule binds only the states that are parties to it and even in the event that all states are
parties to a treaty, they are entitled to terminate or withdraw from the treaty. A jus cogens norm is characterized
as a norm of general international law which by its nature is binding on every state.
43.
May a treaty violate international law?
ANSWER:
Yes, a treaty may violate international law if it conflicts with peremptory norm or jus cogens of
international law. Jus cogens norm is defined as a norm of general international law accepted and recognized by
the international community as a whole as a norm from which no derogation is permitted and which can be
modified only by a subsequent norm of general international law having the same character. Article 53 of the
Vienna Convention on the Law of Treaties provides that a treaty is void if at the time of its conclusion, it conflicts
with jus cogens norm. Article 54 of the same Convention, if a new peremptory norm of general international law
emerges, any existing treaty which is in conflict with that norm becomes voids and terminates.
44.

Can a treaty or international agreement be invalidated by Philippine courts or amended by


subsequent law?
ANSWER: YES. The Constitution of the Philippines has clearly settled that an international agreement may be
invalidated by Philippine Courts. Sec.2 of Article VIII thereof provides that the Supreme Court may not be
deprived of its jurisdiction to review, revise, reverse, modify or affirm on appeal, certiorari or writ of error as the
law or the rules of court may provide, final judgments and decrees of inferior courts in all cases in which the
constitutionality or validity of any treaty, law or ordinance or executive order or regulation is in question. In other
words, the Court authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but,
also, when it runs counter to an act of Congress.
Also, the provisions of a treaty are always subject to
qualification or amendment by a subsequent law, or that it is subject to the police power of the State. (Lim vs.
Macapagal-Arroyo, GR No. 151445, April 11, 2002)
45.
May a state party to a treaty by unilateral act declare it terminated, or withdraw from it?
ANSWER: NO. Even on grounds provided for by the Vienna Convention on the Law of Treaties, either of these
cannot be done unilaterally. This Convention requires a procedure, beginning with notification to the other parties
to the treaty as to the measure it proposes to take. If no party has raised any objection, the proponent state may
carry out the measure it has proposed by a formal instrument signed by the Head of State or of Government and
the same is communicated to the other parties.

PUBLIC INTERNATIONAL LAW

/P 10

46.

Assuming that the other country-party to a treaty is agreeable to the termination of such treaty,
can the President alone without the concurrence of the Senate abrogate the same? Can such
termination be subject to judicial review?
ANSWER: YES. The authority of the Senate over treaties is limited to concurrence. The Constitution is silent as
to the participation of the Senate in the abrogation of a treaty. There being no express constitutional provision
regulating the termination of treaties, it is presumed that the power of the President over treaty agreements and
over foreign relations includes the authority to terminate treaties. The termination of a treaty by the President
without the concurrence of the Senate is not subject to constitutional attack, there being no Senate authority to
that effect. Moreover, the jurisdiction of the courts over a treaty is only with respect to questions of its
constitutionality or validity. The question should involve the constitutionality of a treaty or its validity in relation to a
statute. It does not pertain to the termination of a treaty.
47.

(a)
(b)

Distinguish signing of a treaty from its ratification.


Does mandamus lie to compel the Office of the Executive Secretary and Department of
Foreign Affairs to transmit the signed text of a treaty (Rome Statute) to the Senate of the
Philippines for ratification?

ANSWERS:
(a) The signing of a treaty and ratification are two separate and distinct steps in the treating-making process- the
signature is primarily intended as a means of authenticating the instrument and the symbol of the good faith of the
parties, usually performed by the states authorized representatives, while ratification is the formal act by which
a state confirms and accepts the provisions of a treaty concluded by its representatives, and sis generally held to
be an executive act undertaken by the head of state or of the government. Under the Constitution, the power to
ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate, however, is
limited only to giving or withholding concurrence its consent, or concurrence, to its ratification.
(b) NO. The Philippines is not bound under treaty law and international law to ratify a treaty which it has signed
it is the ratification that binds the state to the provisions thereof. There is no legal obligation to ratify a treaty, but
the refusal must be based on substantial grounds and not on superficial or whimsical reasons. The President has
the discretion even after the signing of the treaty by the Philippine representative whether or not to ratify the
same. It is within the authority of the President to refuse to submit a treaty to the Senate or, having secured its
consent for its ratification, refuse to ratify it. (Pimentel vs. Office of Executive Secretary, 462 SCRA 622)
48.
May a non-signatory State become a party to a treaty?
ANSWER: YES. A non-signatory State may become a party to a treaty through the process of adhesion. Thus,
upon invitation or permission of the contracting parties, a third party who did not participate or who did not ratify
on time, may be bound by a treaty. Other States my also be bound by the terms of a treaty if linked by the most
favored nation clause, under which a contracting State entitled to the clause may claim the benefits extended by
the latter to another State in a separate agreement. Also, if the treaty is merely a formal expression of customary
international law, or where the treaty expressly extends benefits to non-signatory States, States not originally
parties to the agreement may become bound.
49. Explain the concepts of Pacta Sunt Servanda, Rebus Sic Stantibus & Most Favored Nation Clause.
ANSWER:
1) Pacta Sunt Servanda - treaties must be performed in good faith.
2) Ribus Sic Stantibus (things remaining as they are) a party to a treaty is discharged in the event a
change of circumstances occurs which renders the fulfilment of the treaty grossly unjust, oppressive and
iniquitous.
3) Most favored nation clause a clause in the treaty that grants to the other party equal treatment (not less
favourable) that has been granted or may be granted to the most favored other country.
Nationality and Statelessness
50.
What is nationality? How is it determined? How is it acquired?
ANSWERS: Nationality is membership in a political community with its concomitant rights and duties. It is for
each State to determine under its own law who are its nationals. Any question as to whether a person possesses
the nationality of a particular State shall be determined in accordance with the law of that State.
Nationality may be acquired through 1) birth either through jus sanguinis (by blood) or jus soli (by place
of birth) 2) naturalization, by legislative, judicial or administrative processes or 3) repatriation, i.e., recovery of
nationality by individuals who were natural-born citizens of a State but who had lost their nationality.
51.
What is the Principle of Effective Nationality?
ANSWER: The Principle of Effective Nationality postulates if a person has more than one nationality, he shall,
within a third State, be treated as if he had only one. The third State shall recognize exclusively either the
nationality of the State in which he is habitually and principally a resident, or the nationality of the State which he
appears in fact to be most closely connected.

PUBLIC INTERNATIONAL LAW

/P 11

52.
What is Statelessness? Are stateless persons entitled to rights under International Law?
ANSWERS: Statelessness is the status of having no nationality, as a consequence of being born without any
nationality, or as a result of deprivation or loss of nationality. Under the UN Convention Relating to the Status of
Stateless Persons, contracting States agreed to grant stateless persons within their territories treatment at least
as favorable as that accorded to nationals with respect to 1) freedom to practice their religion and freedom as
regards the religious education of their children 2) access to the courts of law 3) rationing of products in short
supply 4) elementary education 5) public relief and assistance 6) labor legislation and social security 7)
acquisition of movable and immovable property 8) gainful employment and practice of liberal professions 9)
freedom of movement.
53.
Who may be considered as refugees? What is the Principle of Non-refoulement?
ANSWERS: A refugee is any person who is outside the country of his nationality, or if he has no nationality, the
country of his former habitual residence, because he has or had well-founded fear of prosecution by reason of his
race, religion, nationality or political opinion and is unable or, because of such fear, is unwilling to avail himself of
the protection of government of the country of his nationality, or if he has no nationality, to return to the country of
his former habitual residence. The elements of being a refugee are 1) outside the country of his nationality, or if
stateless, outside the country of his habitual residence; 2) lacks national protection; and 3) fears persecution.
Under the Refugee Convention of 1951, the Principle of Non-refoulement postulates that no contracting
State shall expel or return a refugee in any manner whatsoever, to the frontiers of territories where his life or
freedom is threatened. The State is under obligation to grant temporary asylum to refugees.
State Responsibility
54.
What is the Doctrine of State Responsibility?
ANSWER: a State is under obligation to make reparations to another State for the failure to fulfil its primary
obligation to afford, in accordance with International Law, the protection due to the alien national of the latter
State. The State may, therefore, be held liable for injuries and damages sustained by the alien while in the
territory of the state if 1) the act or omission constitutes an international delinquency; 2) the act or omission is
directly or indirectly imputable to the state (Direct State Responsibility or Indirect State Responsibility) and 3) the
injury is to the claimant State because of damage to its national.
55.
How may an aliens claims for damages be enforced?
ANSWER: An aliens claims for damages mat be enforced through 1) exhaustion of local remedies, if any; and 2)
resort to diplomatic protection or assistance of his State. Claims may be enforced through the following modes:
negotiation, good offices, arbitration or judicial settlement.
Jurisdiction of States
56.
What is jurisdiction?
ANSWER: It is the power or authority exercised by a State over persons, land, property, transactions and events
within or sometimes outside its territory, subject to certain exceptions. It may be classified as either 10 personal
or 2) territorial. Personal jurisdiction is a power exercised by a State over its nationals while in territorial
jurisdiction, a State has jurisdiction over all persons and properties within its territory
57.
What are the bases of jurisdiction?
ANSWER: 1) Territoriality Principle the basis for the exercise of jurisdiction by a State over all persons,
property, transaction and occurrences within its territory, as well as over certain consequences produced within
the territory by persons acting outside it. It may either be subjective, i.e., jurisdiction to prosecute and punish a
crime commenced within the State but completed or consummated abroad, or objective, i.e., jurisdiction to
prosecute and punish a crime commenced outside the State but consummated within its territory.
2) Nationality principle A State may punish the offenses committed by its nationals anywhere in the world.
3) Protective Principle States may claim extraterritorial jurisdiction to punish crime committed abroad which
are prejudicial to their national security or vital interests, even where the offenses are perpetrated by
non-nationals.
4) Universality Principle a State has extraterritorial jurisdiction over all crimes regardless of where they are
committed or who committed them, whether national or non-nationals, particularly with respect to crimes
which threaten the international community as a whole and which are considered criminal offense in all
countries.
5) Passive Personality Principle a State may apply criminal law to an act committed outside its territory by a
person not its national where the victim of the act was its national.
58.

What is exterritoriality? Extraterritoriality?

ANSWERS: Exterritoriality is the exemption of persons and things from local jurisdiction on the basis of
international custom. Extraterritoriality denotes the status of a person or thing physically present on a States
territory but wholly or partly withdrawn from the States jurisdiction by reason of treaty or convention. The latter
principle is discredited by the concept of equality of States.

PUBLIC INTERNATIONAL LAW

/P 12

Law of the Sea


59.
What are the four conventions adopted by the UN Conference on the Law of the Sea?
ANSWER: The four conventions adopted by the UN Conference on the Law of the Sea are:
1.
Convention on the High seas (1962)
2.
Convention on the Continental Shelf (1964)
3.
Convention on the Territorial Sea and Contiguous Zone (1964)
4.
Convention on Fishing and Conservation of Living resources of the High Seas (1966)
Only the Convention on the High Seas is generally declaratory of established principles of international
law; but the other three provide evidence of the generally accepted rules bearing on the subject matter, the
cogency of this depending in part on the number of ratification.
60. a) What do you understand by the Archipelago Doctrine?
b) How does the Doctrine, as embodied in Article I of the Philippine Constitution, differ from the
version of the 1982 UN Convention on the Law of the Sea?
ANSWERS:
a)
The archipelagic doctrine emphasizes the unity of the land and waters by defining an archipelago either
as a group of islands and islets or body of waters studded with islands. For this purpose, it requires
that baselines be drawn by connecting the appropriate points of the outermost islands to encircle the
islands within the archipelago. The waters on the landward side of the baselines regardless of breadth or
dimension are considered merely internal waters.
b)
Article I of the Philippine Constitution treats the vast areas of water between islands as internal waters
and therefore not subject to the right of innocent passage. The 1982 UNCLOS version calls such areas
archipelagic waters and are subject to the right of innocent passage through passages designated by
the archipelago concerned. But, where the establishment of a straight baseline in accordance with Article
4 of the UNCLOS has the effect of enclosing as internal waters areas which previously had been
considered as part of the territorial sea or of the high seas (referred to as archipelagic waters), the right
of innocent passage shall exist in those waters, through passages designated by the archipelago
concerned.
61.
What is the right of innocent passage?
ANSWER: It is the navigation through the territorial sea for the purpose either of traversing the sea without
entering the internal waters, or of proceeding to internal waters, or of making for the high seas from internal
water. It includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or
are rendered necessary by force majeure or by distress. Passage is innocent as long as it is not prejudicial to the
peace, good order or security of the coastal state. Submarines are required to navigate on the surface and to
show their flag. Foreign fishing vessels must observe duly published rules and regulations of the coastal state
and rules of international law relating to transport and navigation. The coastal state can prevent these vessels
from fishing in the territorial sea.
62.
What is transit passage?
ANSWER: It is the right to exercise freedom of navigation and overflight solely for the purpose of continuous and
expeditious transit through the straits used for international navigation, i.e., between two areas of the high seas or
between two exclusive economic zones. All ships and aircraft enjoy the right to transit passage.
63.
What is a baseline? The straight baseline method?
ANSWERS: It is a line from which the breadth of the territorial sea, the contiguous zone and the exclusive
economic zone is measured in order to determine the maritime boundary of the coastal state.
The straight baseline method is used by the Philippines in drawing its baseline from which the breadth of
the territorial sea is measured. This is done by joining the appropriate points through straight lines. This method
is applied in cases where the coastline is deeply indented and cut into, or if there is a fringe of islands along the
coast in its immediate vicinity.
64.
What is a continental shelf?
ANSWER; It comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea
throughout the natural prolongation of its land territory to the outer edge of the continental margin or to a distance
of 200 nautical miles beyond the baseline from which the breadth of the territorial sea is measured if the edge of
the continental margin does not extend up that that distance. However, if the coastal state succeeds in its
application for an extended continental shelf, it may extend to not more than 350 nautical miles. A coastal state
has the inherent right to explore its continental shelf that constitute a natural prolongation of its land territory and
under the sea by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign
rights for thee purpose of exploring the seabed and exploring its natural resources. Furthermore, a coastal state
shall have the exclusive right to authorize and regulate drillings on the continental shelf.

PUBLIC INTERNATIONAL LAW

/P 13

65.
Distinguish the territorial sea from the internal waters of the Philippines.
ANSWER: Territorial sea is an adjacent belt of sea with a breadth of twelve nautical miles measured from the
baselines of a state and over which a state has sovereignty (Articles 2 and 3 of the Convention on the Law of the
Sea)
Ships of all states enjoy the right of innocent passage through the territorial sea. (Article 14 of the
Convention on the Law of the Sea) Internal waters, on the other hand, are the waters on the landward side of
baselines from which the breadth of the territorial sea is calculated. The internal waters of the Philippines consist
of the waters around, between and connecting the islands of the Philippine Archipelago, regardless of their
breadth and dimensions, including the waters in bays, rivers and lakes. (Section 1, Article I, Philippine
Constitution)) No right of innocent passage for foreign vessels exists in the case of internal waters.
66.
What is the contiguous zone?
ANSWER: Contiguous zone is a zone contiguous to the territorial sea and extends up to twelve (12) nautical
miles from the territorial sea and over which the coastal state may exercise control necessary to prevent
infringement of its customs, fiscal immigration or sanitary laws and regulations within its territory or territorial sea.
(Article 33 of the Convention on the Law of the Sea)
67.
What is the Exclusive Economic Zone?
ANSWER: The exclusive economic zone is a marine area, which lies between the territorial sea and the High
Seas, that includes the subjacent sea-bed, the subsoil beyond and adjacent to the territorial sea, extending up to
200 nautical miles from the baseline of the territorial sea of a state. It gives the coastal state sovereign rights
overall economic resources of the sea, seabed and subsoil . Sovereign rights (not of sovereignty) are the rights
which fall short of absolute sovereignty because in the EEZ, all States, whether coastal or land-locked, generally
enjoy freedom of navigation and overflight and of the laying of submarine cables and pipelines and other
internationally lawful uses of the sea related to this freedoms.
68.
What are the rights of the coastal state in the Exclusive economic Zone?
ANSWER:
A) Sovereign rights: 1) for the purpose of exploring and exploiting, conserving and managing the living and nonling resources in the super adjacent waters of the seabed and the resources of the seabed and subsoil 2) with
respect to the other activities for the economic exploitation an exploration of the EEZ, such as production of
energy from water currents and winds
B) Jurisdictional rights: 1) with respect to establishment and use of artificial islands 2) as to protection and
preservation of the marine environment and 3) over marine scientific research. C) Other rights and duties
provided for in the Law of the Sea Convention.
69.

What is the High Seas? What freedoms in the High Seas are accorded to all States? Can a
warship board a foreign ship on the High Seas?
ANSWER: It is the sea beyond the jurisdiction of any coastal State. It starts from the outer edge of the territorial
sea or the outer edge of the EEZ, if the coastal State is entitled to an EEZ under the Convention. If the sea is not
included in the EEZ, nor in the territorial sea, or in the internal waters of a State, or the archipelagic waters of an
archipelagic State- then its belongs to the High Seas.
The High Seas is open to all States whether coastal or land-locked and all States are accorded the
following freedoms in the High Seas: freedom from navigation; freedom of overflight; freedom to lay submarine
cables and pipelines; freedom to construct artificial islands and other installations; freedom from fishing and
freedom of scientific research.
No State may subject any part of the High Seas to its sovereignty. A warship which encounters on the
High Seas a foreign ship, is not justified in boarding unless there is reasonable ground for suspecting that the
ship is engaged in piracy, in the slave trade, in unauthorized broadcasting and the flag State of the warship has
jurisdiction, the ship is without nationality or flying a foreign flag or refusing to show its flag. Warships on the High
Seas and ships used by a government in non-commercial service are accorded immunity from the jurisdiction of
any State other than the flag State.
70.
What is The Area?
ANSWER: It encompasses the deep seabed and subsoil beyond the national jurisdiction of any State and is
administered by the International Seabed Authority, an autonomous organization of the United Nations
headquartered in Kingston, Jamaica. It is tasked with administering the resources of The Area. It is the common
heritage of mankind and its resources are mankinds common heritage.
71.
How are disputes resolved under the UNCLOS?
ANSWER: Parties who are signatories to the UNCLOS are obligated to resolve their disputes involving the
interpretation or application of the terms of the Convention by peaceful means and to seek solutions in
accordance with Section 33, paragraph ! of the UN Charter, or the parties may adopt the dispute resolution
mechanism it has agreed to apply by virtue of a general, regional or bilateral agreement. If bilateral settlement
fails, the dispute must be submitted for compulsory procedure to any of the following tribunals, the decision of
which shall be binding on the parties. These are: The International Tribunal for the Law of the Seas, the
International Court of Justice, an arbitration tribunal or a special arbitration tribunal.

PUBLIC INTERNATIONAL LAW

/P 14

72.
What is the new archipelagic baseline law of the Philippines?
ANSWER: The new archipelagic baseline law of the Philippines is embodied in RA 9522 which effectively
amended Section 1 of RA 3046, entitled An Act to Define the Baselines of the Territorial Sea of the Philippines,
as amended by Section 1 of RA 5446. RA 9522 adopts the regime of islands formula in dealing with our claim
over Spratlys.
73.

What is the Regime of Islands Doctrine enunciated in RA 9522, or the new archipelagic baseline
law of the Philippines? What are the arguments for and against the doctrine.
ANSWER: The Regime of Islands Doctrine as embodied in the new archipelagic baseline law of the Philippines
modifies the Archipelagic Principle by excluding two disputed territories, namely, the Kalayaan Islands Group and
the Scarborough Shoal from the countrys archipelagic baseline but they remain as parts of Philippine territory
and considered as regime of islands consistent with Article 121 of the United Nations Convention on the Law of
the Seas (UNCLOS). It adopts a mix formula that combines archipelagic baselines for the main archipelago, and
regime of islands for the disputed islands with the option to fix normal baselines in the islands we claim in the
disputed Spratly islands group. Under the regime of islands principle, baselines will be drawn on an island-toisland basis rather than a package deal-type archipelago.
74.

Is RA 9522 unconstitutional for converting internal waters into archipelagic waters and exposing
the Philippine internal waters to nuclear and maritime pollution hazard?
ANSWER: NO. The conversion of internal waters into archipelagic waters will not risk the Philippines because an
archipelagic state has sovereign power that extends to the waters enclosed by the archipelagic baseline,
regardless of their depth or distance from the coast. The Philippines is subject to UNCLOS III which grants
innocent passage rights over the territorial sea or archipelagic waters, thus, the right of innocent passage, being a
customary international law is automatically incorporated in the corpus of Philippine law.
The compliance to UNCLOS III through RA 9522 will not expose Philippine waters to nuclear and
maritime pollution hazard. If the Philippines did not comply with the baseline law, it will find itself devoid of
internationally acceptable baselines from where the breadth of its maritime zones and continental shelf is
measured and which will produce two-fronted disasters: (1) open invitation to the seafaring powers to freely enter
and exploit the resources in the waters and submarine areas around the archipelago and (2) it shall weaken the
countrys case in any international dispute over Philippine maritime space. (Magallona v. Ermita, GR No. 187167,
July 16, 2011)
International Human Rights
75.
What are human rights in international relations? How may human rights be classified?
ANSWERS: International human rights are liberties or freedoms, immunities and benefits accepted as
guaranteed rights and giving rise to obligations under international law. Under the United Nations Charter, the
international community of States has recognized the general obligation on universal respect for, and
observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or
religion. Human rights may either be individual rights or collective or national rights. They may also be classified
into first generation of human rights, ie, civil and political rights, second generation, ie, economic, social and
cultural rights, or third generation, ie, right to peace, healthy environment and the right to development.
76. What is the International Bill of Human Rights? Does international protection of human rights entail
criminal liability?
ANSWERS: International Bill of Human Rights is the designation used to refer to three instruments of the
international protection of human rights, taken together, namely: (1) the Universal Declaration of Human Rights
based on the human rights provisions of the UN Charter, (2) the International Covenant of Civil and Political
Rights, and (3) the International Covenant on Economic, Social and Cultural Rights.
YES. Certain categories of acts of violation of human rights, such as genocide, war crimes and crimes
against humanity within the jurisdiction of the International Criminal Court (ICC) are characterized as grave
offenses under international law and are defined as crimes. They entail criminal liability on the part of the
individual perpetrator.
77. Under international law, may a State derogate from the obligations in treaties for the protection of
human rights? Does such derogation apply to all human rights?
ANSWERS: YES. Article 4(1) or the Derogation Clause of the International Covenant on Civil and Political Rights,
provides that in time of public emergency which threatens the life of the nation, and the existence of which is
officially proclaimed, the State Parties to the present covenant may take measures derogating from their
obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided
such measures are not inconsistent with their obligations under international law and do not involve discrimination
solely on the ground of race, color, sex, language, religion or social origin.
NO. The Derogation Clause does not apply to the following human rights (1) right to life; (2) right not to
be subjected to torture or to cruel, inhuman or degrading treatment or punishment; (3) right not to be held in
slavery or in servitude; (4) right to be imprisoned merely on ground of inability to fulfil a contractual obligation; (5)
the right not to be held guilty under ex post facto law; (6) right to be recognized everywhere as a person before
the law; and (7) right to freedom of thought, conscience and religion. These are non-derogable rights.

PUBLIC INTERNATIONAL LAW

/P 15

Settlement of International Disputes


78.
In international relations, does the use of war or force by a state against another violate
international law? We may force be used without violating the UN Charter?
ANSWER: YES. Article 2 (4) in the United Nations Charter prohibits the use of force in the relations of states by
providing that all members of the UN shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other manner inconsistent with the
purposes of the United Nations.
YES. The following are instances when force may be used without violating the UN Charter: (1) Right to
individual or collective defense (UN Charter, Art. 51) (2) Enforcement measure involving the use of armed force
by the Security Council (Ibid., Art.42) (3) Enforcement measure by regional arrangement as authorized by the
Security Council (Ibid.)
79.

What is the role of the International Court of Justice (ICJ) in international relations? What are the
two limitations on the jurisdiction of the International Court of Justice?
ANSWERS: The International Court of Justice may decide on interpretation of treaties, any question on
international law, the existence of facts constituting breach of international obligations, and the nature or extent of
the reparation to be made for the breach of international obligation.
The two limitations on the jurisdiction of the International Court of Justice are: (1) Only states may be
parties in cases before it (Art. 34) and (2) The consent of the parties is needed for the court to acquire jurisdiction
with the optional jurisdiction clause. (Art. 36)
80.

The UN Security Council has the primary responsibility to maintain international peace and
security. In case of an outbreak of armed conflict between or among nations what steps may be
undertaken by the UNSC to settle the dispute?
ANSWER: In case of armed conflict between or among nations, the UN Security Council may undertake
preventive action and enforcement action. Preventive action consists of provisional measures to prevent a conflict
from worsening and may involve the deployment of peacekeeping or observer missions. The military observers
shall be unarmed, while peacekeeping forces may be armed with light weapons but they are no authorized to use
force except in self-defense and the operations must not interfere with the internal affairs of the host country.
Enforcement action involves the deployment of air, sea and land forces, or in the institution of a blockade. The
only limitation in the exercise of the UNSC power to undertake preventive and enforcement actions is that the
dispute must be international and not domestic in character.
81.
What is international criminal law?
ANSWER: It is the branch of public international law which proscribes specified acts as international crimes,
provides for their prosecution and punishment, and governs relations of States with respect to individual criminal
liability and its enforcement.
82.
What is an international crime?
ANSWER: It refers to an act or acts universally recognized as criminal, which is considered a grave matter of
international concern and for some valid reason cannot be left within the exclusive jurisdiction of the State that
would have control over it under ordinary circumstances.
83.
State the universal jurisdiction of the International Criminal Court (ICC).
ANSWER: The jurisdiction of the International Criminal Court, in accordance with the ICC Rome Statute shall be
limited to serious crimes of concern to the international community as a whole: (1) the crime of genocide or acts
committed with intent to destroy, in whole or in part, a national, ethical, racial or religious, groups, such as killing
members of the group, imposing measures intended to prevent births within the group & forcibly transferring
children of the group to another group. (2) crimes against humanity or acts when committed as part of a
widespread or systematic attack directed against any civilian population, such as murder, extermination,
enslavement, apartheid torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization. (3) war crimes, such as torture or inhuman treatment and (4) the crime of aggression.
84.
What is the principle of complementarity?
ANSWER: This principle would not replace national courts in criminal jurisdiction. If the national court is able and
willing to take cognizance of crimes that are also cognizable by the International criminal Court, the latter would
not take cognizance of the case. Only when the national court creates an unjustified delay or when its
proceedings are meant to shield an individual from criminal liability may the ICC take cognizance of the case.
85.

Distinguish the jurisdiction of the International Court of Justice and the International Criminal
Court.
ANSWER: The jurisdiction of the International Court of Justice pertains to the international responsibility in the
concept of civil liability, while that of the International Criminal Court pertains to criminal liability. While States are
the subject of law in international responsibility under the Jurisdiction of the International Court of Justice, the
criminal liability within jurisdiction of the International Criminal Court pertains to individual natural person. The
International Court of justice is the principal judicial organ of the United nations while the International criminal
Court is independent of the United Nations.

PUBLIC INTERNATIONAL LAW

/P 16

86.
What is the principle of ne bis in idem under Article 20 of the Rome Statute?
ANSWER: The principle indicates that primary jurisdiction over the so-called international crimes rests, at the first
instance, with the state where crime is committed and secondarily with the International Criminal Court in
appropriate situations.
87.

Is the Non-Surrender Bilateral Agreement between US and the Philippines prohibiting the
surrender of persons committing international crimes to any international tribunal valid?
ANSWER: YES. National jurisdiction being primary is always the responsibility and within the prerogative of the
Philippines either to prosecute criminal offenses equally covered by the Rome Statute or to accede to the
jurisdiction of the International Criminal Court. The Philippines may decide to try persons of the US under our
national criminal justice system. Or it may opt not to exercise criminal jurisdiction over its erring citizens or over
US persons committing high crimes in the country and defer to the secondary criminal jurisdiction of the
International Criminal Court over the. (Bayan Muna v. Romulo, GR No. 159618,February 1, 2011)
88.
What is International Humanitarian Law?
ANSWER: It is a branch of public international law which governs armed conflicts to the end that the use of
violence is limited and that human suffering is mitigated or reduced by regulating or limiting the means of military
operation and by protecting persons who do not or no longer participate in hostilities. It is also known as the law
of armed conflict or the law of war.
89.
Distinguish an armed conflict under IHL and RA 9851.
ANSWER: Under IHL armed conflict includes all cases of declared war or any armed conflict or more of the
highest contracting parties, even if the state of war is not recognized by one of the. It also applies to armed
conflict between the government and a rebel or insurgent movement. Under RA 9851, armed conflict is any use
of force or armed violence between States or a protracted armed violence between governmental authorities and
organized groups or between such groups within a State provided that it gives rise to a situation to which the
Geneva Convention of 1949 applies.
90.
What does armed conflict not cover?
ANSWER: It does not include international disturbances or tensions such as riots; isolated and sporadic acts of
violence or other acts of similar nature
91.
What are the fundamental principles of IHL?
ANSWER: 1) Parties to armed conflict are prohibited from employing weapons or means of warfare that cause
unnecessary damage or excessive sufferings. 2) Parties to armed conflict shall distinguish between civilian
populace from combatants and spare the former from military attacks. 3) Persons hors de combat and those
who do not take part in hostilities shall be protected and treated humanely without any distinction. 4) It is
prohibited to kill or injure an enemy who surrenders or who is a hors de combat. 5) The wounded and the sick
shall be protected and cared for by the party who is in custody of them 6)Parties who captured civilians and
combatants shall respect their rights to life, dignity, and other personal rights.
92.
What is the Martens Clause?
ANSWER: In cases not covered by international agreements, civilians and combatants remain under the
protection and authority of the principles of international law derived from established custom, from the principles
of humanity and from the dictates of public conscience.
93.
What is international environmental law?
ANSWER: It is a branch of public international law comprising those substantive, procedural and institutional
rules which have as their primary objective the protection of the environment, the term environment being
understood as encompassing both the features and the products of the natural world and those of human
civilization.
94.
What is Principle 21 of the Stockholm Declaration?
ANSWER: This declares that States have the sovereign right to exploit their own resources pursuant to their own
environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not
cause damage to the environment of other States or areas beyond the limits of national jurisdiction.
95.
What is the Madrid Protocol?
ANSWER: The Madrid Protocol is an international procedure which gives protection to trademark holders in
several jurisdictions with only a single procedure. These regulations shall apply to international applications
where the International Property Office of the Philippines is the office of origin, and where the Philippines is a
designated contracting party in an international registration. If the Philippines has been designated as a
contracting party in an international registration, its effect shall be as if the application for registration of the mark
had been directly filed with the IPOPHIL. Further, the mark shall be considered registered directly with the
IPOPHIL on the date of the international registration in cases where there is no refusal of the mark by the
IPOPHIL; or in case the mark was initially refused, but such refusal was subsequently withdrawn; or if a
statement of the grant of protection was sent by the IPOPHIL.
--o0o--