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PUBLIC INTERNATIONAL LAW TOPICS UNDER THE SYLLABUS: A. Concepts 1. Obligations erga omnes 2. Jus cogens 3. Concept of aequo et bono B. International and national law C. Sources D. Subjects 1. States 2. International organizations 3. Individuals E. Diplomatic and consular law F. Treaties G. Nationality and statelessness H. Treatment of aliens 1. Extradition a. Fundamentals principles b. Procedure c. Distinguished from deportation I. International Human Rights Law 1. Universal Declaration of Human Rights 2. International Covenant on Civil and Political Rights 3. International Covenant on Economic, Social and Cultural Rights

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PUBLIC INTERNATIONAL LAW

TOPICS UNDER THE SYLLABUS:

A. Concepts

1. Obligations erga omnes

2. Jus cogens

3. Concept of aequo et bono

B. International and national law

C. Sources

D. Subjects

1. States

2. International organizations

3. Individuals

E. Diplomatic and consular law

F. Treaties

G. Nationality and statelessness

H. Treatment of aliens

1. Extradition

a. Fundamentals principles

b. Procedure

c. Distinguished from deportation

I. International Human Rights Law

1. Universal Declaration of Human Rights

2. International Covenant on Civil and Political Rights

3. International Covenant on Economic, Social and Cultural Rights

J. International Humanitarian Law and Neutrality

1. Categories of armed conflicts

a. International armed conflicts

b. International or non-international armed conflict

c. War of national liberation

2. Core international obligations of states in International Humanitarian Law

3. Principles of International Humanitarian Law

a. Treatment of civilians

b. Prisoners of war

4. Law on neutrality

K. Law of the sea

1. Baselines

2. Archipelagic states

a. Straight archipelagic waters

b. Archipelagic waters

c. Archipelagic sea lanes passage

3. International waters

4. Territorial sea

5. Exclusive economic zone

6. Continental shelf

a. Extended continental shelf

7. International Tribunal for the Law of the Sea

L. International environment law

1. Principle 21 of the Stockholm Declaration

Public International Law

1. Concepts, Nature, Definition of International Law

Schwarzenberger - International Law is the body of legal rules which apply between sovereign states and such other entities as have been granted international personality.

Is that branch of public law, which regulates the relations of states, and other entities, which have been, granted an international personality.

It is not imposed but simply adopted by states as a common rule of action among themselves

Agpalo International Law as the body of rules and principles of action which are binding upon civilized states in their relationships with one another and those between international organizations and states, among the international organizations themselves, as well as states or international organizations and natural and juridical persons, such as law governing human rights.

Points to ponder about Public International Law

a) Defines the very existence of states

b) Provides the framework for diplomatic relations which regulates the relation of States and other international persons

c) Governs international agreements

d) Sets forth rules for International Commerce

e) Governs individual human rights

f) Regulates protection of global environment, affecting the interest of States as a whole

A.A body of principles, norms and processes

B.Which regulates the relations of States and other international persons,

C.And governs their conduct

D.Affecting the interests of States as a whole

a. Obligations Erga Omnes

The term ergo omnes (in relation to everyone) in international law has been used as a legal term describing obligations owed by States towards the community of states as a whole, Romulo vs. Vinuya (G.R. 162230, April 29, 2010; 619 SCRA 533)

Such obligations derive, for example, in contemporary International Law, from the outlawing (banning or interdiction) 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. Some of the corresponding rights of protection have entered into the body of general international law; others are conferred by international instruments of a universal or quasi universal character. Romulo vs. Vinuya (G.R. 162230, April 29, 2010)

b. Jus Cogens - Latin meaning "compelling law." This "higher law" may not be violated by any country. For example, genocide or slave trade may be considered to go against jus cogens.

In International Law, the term jus cogens (literally, compelling law) refers to norms that command peremptory (absolutely or dogmatically) authority, superseding conflicting treaties and custom. Jus cogens norms are considered peremptory in the sense that they are mandatory, do not admit derogation, and can be modified only by general international norms of equivalent authority. Romulo vs. Vinuya (G.R. 162230, April 29, 2010)

Rudiments of Jus Cogens

1. A norm accepted and RECOGNIZED by

2. The INTERNATIONAL community of states as a whole

3. NO derogation is permitted

4. Which can only be modified by a subsequent norm having the SAME CHARACTER

If a treaty, at the time of its conclusion, conflicts with jus cogens, it is void.

The Philippines is NOT under a non derogable obligation to prosecute international crimes committed against its citizens. Romulo vs. Vinuya (G.R. 162230, April 29, 2010)

Jus Dispositivum vs. Jus Cogens

JUS DISPOSITIVUM

Refer to norems of ordinary Customary International Law which are derived from the consent of states.

JUS COGENS

Refers to duties which every state owes to the international community as a whole as a norm from which no derogation is permitted and can be modified only by a subsequent norm of general international law having the same character.

c. Concept of Aeguo Et Bono

EX AEQUO ET BONO: It is to rule in justice and fairness; equity overrides all other rules of law. The ICJ has no power to decide a case ex aequo et bono, unless all parties agree thereto.

Is there a Private International Law?

It regulates the relations between the individuals and not of the states inter se.

A domestic law

It deals with cases where the foreign law intrudes in the domestic sphere where there are questions of the applicability of foreign law or the role of foreign courts

Is this a part of Public International Law?

No , conflicts of law deals with the determination of whether in a factual situation involving a foreign element the law of another shall be applied

What is International Administrative Law?

Is that body of rules governing the internal affairs of international institutions.

What is Municipal Law?

It is that which is issued by a political superior for the strict adherence and observance of those under its authority.

Distinguish International law from:

International Ethics or Morality

It stresses more particularly on the consideration of justice and morality.

Is the body of principles, which are observed by states in their relations with one another on the basis of conscience, morality and humanity.

International Diplomacy

It is anchored on expediency and self-interest.

It is the art, science, or practice of conducting negotiations between states

International Comity

It emphasizes the rules of politeness in dealing of states with one another.

There is a principle of international comity that a court of another jurisdiction should refrain, as a matter of propriety and fairness from so assuming the power of passing judgment on the correctness of the application of law and the evaluation of the facts of the judgment issued by another tribunal. ( Philippine Aluminum Wheels, Inc. vs. FASGI Enterprises, Inc., 342 SCRA 722)

International Relations

It is described as that official intercourse which is maintained by states through their foreign offices or ministries.

Transnational Law

Is the whole complex of rules, international and quasi international, municipal and quasi-municipal, which govern transactions, whether governmental or private, which transcend political or jurisdictional frontiers. (Sorensen)

State some constitutional provisions dealing with international law

a. Art.1 Sec. 1 - National territory

The National territory comprises the Philippine Archipelago with all the islands and waters embraced therein, and all the territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domain, including its territorial sea, the sea bed, the subsoil, the insular shelves and other submarine areas. THE WATERS AROUND, BETWEEN AND CONNECTING THE ISLANDS OF THE ARCHIPELAGO, REGARDLESS OF THEIR BREADTH AND DIMENSIONS, FORM PART OF THE INTERNAL WATERS OF THE PHILIPPINES.

b. Art. 2 Sec. 2 Renunciation of war / Incorporation clause

The Philippine renounces war as an instrument of national policy, adopts the generally accepted principles of international as a part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations.

c. Art. 2 Sec. 4 Defense of state

The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal, military or civil service.

d. Art. 2 Sec. 7 Foreign Relations

The State shall pursue an independent foreign policy. In its relations with other states, the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination.

e. Art. 4 Citizenship

Section 1.The following are citizens of the Philippines:

1. Those who are citizens of the Philippines at the time of the adoption of this Constitution;

2. Those whose fathers or mothers are citizens of the Philippines;

3. Those born before January 17, 1973, of Filipino mothers, who elect Philippine Citizenship upon reaching the age of majority; and

4. Those who are naturalized in the accordance with law.

Section 2.Natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens.

Section 3.Philippine citizenship may be lost or reacquired in the manner provided by law.

Section 4.Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission they are deemed, under the law to have renounced it.

Section 5.Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law.

f. Art 6 Sec. 23 (1) - Declaration of the existence of war

The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war.

g. Art 7 Sec. 20 Foreign Loans

The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence of the Monetary Board, and subject to such limitations as may be provided by law. The Monetary Board shall, within thirty days from the end of every quarter of the calendar year, submit to the Congress a complete report of its decision on applications for loans to be contracted or guaranteed by the Government or government-owned and controlled corporations which would have the effect of increasing the foreign debt, and containing other matters as may be provided by law.

h. Art. 7 Sec. 21 Concurrence of treaties

No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.

i. Art. 8 Sec. 4 (2) Constitutionality of treaties

All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court en banc, and all other cases which under the Rules of Court are required to be heard en banc, including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations, shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.

j. Art. 8 Sec. 5 (1) Jurisdiction over ambassadors, public ministers and consuls.

The Supreme Court shall have the following powers:

Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

k. Art. 8 Sec. 5 (2) (a) Jurisdiction over cases involving constitutionality of treaties

The Supreme Court shall have the following powers:

Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:

All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.

l. Art. 18 Sec. 4 Unratified treaties.

All existing treaties or international agreements which have not been ratified shall not be renewed or extended without the concurrence of at least two-thirds of all the Members of the Senate.

m. Art 18 Sec. 25 RP US Bases Agreement

After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning military bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.

2. International and National Law

1. Division of International Law

2. Monism vs. Dualism

3. Incorporation vs. Transformation

a. Types of Transformation

1. Hard Transformation Theory

2. Soft Transformation Theory

4. Conflict Between International Aid

1. International Rule

2. Municipal Rule

3. Fitzmaurice Compromise

5. Municipal Law

INTERNATIONAL LAW Set of rules and principles that govern the relationships between States and other international actors which under Modern International Law include International Organizations, Transnational Corporations and Individuals.

GRAND 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 of International Law and Municipal Law

Public International Law vs. Municipal Law vs. Private International Law

1. International law - prescribes rules and processes that govern the relations of sovereign states with each other, and the rights of other entities insofar as they implicate the community of states

2. Municipal law deals with the conduct or status of individuals, corporations, and other "private" entities within particular states.

3. Private international law part of the laws of each State, which determines whether in dealing with a factual situation involving a foreign element, the law or judgment of some other State will be recognized or applied in the forum.

MONISM vs. DUALISM

Monism views international and national law as part of single legal system, with domestic law derived from the broader framework provided by international law. Dualism considers international law and internal law of states as wholly separate legal systems, the former creating obligations only among sovereign nations and the latter allowing each state to determine the means and form by which it carries out its obligations.

MONISM Monists have a unitary concept of law and see all laws (both international and municipal law) as an integral part of the SAME SYSTEM. If conflict exists between international law and municipal law, international law must prevail.

DUALISM Domestic and international law are INDEPENDENT of each other, as they regulate different subject matters. International law regulates the relations of sovereign states, while municipal law regulates the internal affairs of a state.

Under DUALISM, no conflict can ever arise between international and municipal law, because the two systems are MUTUALLY EXCULSIVE. If international law is applied within a state, it is only because it has been expressly incorporated by municipal law. The PHILIPPINES is DUALIST state.

INCORPORATION vs. TRANSFORMATION

What is the Doctrine of Incorporation? How does it differ from the Doctrine of Transformation?

The doctrine of incorporation postulates that the generally accepted principles of international law are automatically incorporated in the municipal law of each state upon its admission to the family of nations.

The doctrine of transformation, on the other hand, requires such principle of international law to be enacted as statues or otherwise converted into municipal law before they can be considered binding on the state.

What is the DOCTRINE OF INCORPORATION?

Under this doctrine of incorporation, rules of international law forms part of the law of the land and no further legislative action is needed to make such rules applicable in the domestic sphere.

It is a universally accepted postulate that, with or without an express declaration to this effect, states admitted to the family of nations are bound by the rules prescribed by it for the regulation of international intercourse.

This is an inevitable consequence of membership in the international community.

The law of nations although not specially adopted by the Constitution or Municipal Act, is essentially a part of the law of the land. Its obligation commenced and runs with the existence of a nation.

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.

The Philippine amenability to this doctrine of Incorporation, is shown by affirming to recognition of the principles of International Law in their Constitution as exemplified in Art. II, Section 2 of the 1987 Philippine Constitution, to wit:

the Philippine renounces war as an instrument of national policy, adopts the generally accepted principles of international as a part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations.

PERALTA vs. DIRECTOR OF PRISON, 75 Phil 287

Considering that the absolute and permanent allegiance of the inhabitants of a territory occupied by the enemy of their legitimate government or sovereign is not abrogated or severed by the enemy occupation, because the sovereignty of the government or sovereign de jure is not transferred thereby to the occupier, as we have held in the case of Peralta vs. Director of Prisons (75 Phil., 285), and if it is not transferred to the occupant it must necessarily remain vested in the legitimate government; that the sovereignty vested in the titular government (which is the supreme power which governs a body politic or society which constitute the state) must be distinguished from the exercise of the rights inherent thereto, and may be destroyed, or severed and transferred to another, but it cannot be suspended because the existence of sovereignty cannot be suspended without putting it out of existence or divesting the possessor thereof at least during the so-called period of suspension; that what may be suspended is the exercise of the rights of sovereignty with the control and government of the territory occupied by the enemy passes temporarily to the occupant; that the subsistence of the sovereignty of the legitimate government in a territory occupied by the military forces of the enemy during the war, "although the former is in fact prevented from exercising the supremacy over them" is one of the "rules of international law of our times";

What is the Incorporation Clause?

The Incorporation clause is found in Art. II, Section 2 of the 1987 Philippine Constitution, to wit:

the Philippine renounces war as an instrument of national policy, adopts the generally accepted principles of international as a part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations.

What is the basis of the Philippines Amenability to the doctrine of Incorporation ?

Art. II, Section 2 of the 1987 Philippine Constitution

What is the purpose of the incorporation clause?

The incorporation clause assumes the existence of international law which binds the Philippines as a state

What is the DOCTRINE OF TRANSFORMATION?

It holds that the generally accepted Rules of International Law are not per se binding upon the state but must first be embodied in legislation enacted by the law making body and so transformed into municipal law. Only them will said law become binding upon the state as part of its municipal law.

For an international law to be a part of the law of the land there must be regulative enactment to transform it to municipal law.

The generally accepted rules of international 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 bonding upon the State as part of its municipal law

To what doctrine does the Philippines adhere to?

Apparently the Philippines adhere to both doctrines

What is the doctrine of AUTOLIMITATIONS?

It is the doctrine wherein the Philippines adhere to the principles of International as a limitation to the exercise of its sovereignty.

TANADA vs. ANGARA

Petitioners argued that the Senate gravely abused its discretion in joining the WTO because it would have the effect of wiping out local industries and enterprises and depriving Filipinos of control of the economy.

HELD: There was no grave abuse of discretion. The WTO has some built-in advantages to protect weak and developing economies. Unlike the UN where major states have permanent seats and veto powers in the Security Council, in the WTO decisions are made on the basis of sovereign equality, with each members vote equal in weight to that of any other. Poor countries can protect their common interests more effectively through the WTO rather than through one-on-one negotiations with developed countries. Within the WTO developing countries can form powerful blocs to push their economic agenda more decisively than outside the Organization. This is not merely a matter of practical alliances but a negotiating strategy rooted in law.

Moreover, the WTO Agreement grants developing countries a more lenient treatment, giving their domestic industries some protection from the rush of foreign competition. With respect to tariffs in general, preferential treatment is given to developing countries in terms of the amount of tariff reduction and the period within which the reduction is to be spread out. As compared to developed countries, the tariff reduction required of developing countries is smaller, to be carried out over a longer period of time. The GATT itself has provided built-in protection from unfair foreign competition and trade practices including anti-dumping measures, countervailing measures, and safeguards against import surges. Where local businesses are jeopardized by unfair foreign competition, the Philippines can avail of these measures.

Kuroda vs. Jalandoni 88 Phil 171 (1949)

Petitioner Shigenon Kuroda, formerly a Lt. Gen. of the Japanese Imperial Army and Commanding General of the Japanese Imperial Forces in the Philippines in 1943 and 1944, was charged before a Military Commission formed by the Chief of Staff of the Armed Forces of the Philippines for war crimes. Among his contentions was that he was being charged of crimes not based on law, national or international, because the Philippines was not a signatory to the Hague Convention on Rules and Regulations Covering Land Warfare and that it signed the Geneva Convention only in 1947. Held: The rules and regulations of the Hague and Geneva Conventions form part of and are wholly based on the generally accepted principles of international law. The Court ruled that our Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rules and principles of international law as contained in treaties to which our government may have been or shall be a signatory. (Kuroda v. Jalandoni, 83 Phil. 171 [1949])

Types of Transformation Theories

a. Hard Transformation Theory

Only legislation can transform international law into domestic law. Courts may apply international law only when authorized by legislation.

b. Soft Transformation Theory

Either a judicial or legislative act of a state can transform international law into domestic law.

CONFLICT BETWEEN INTERNATIONAL AND MUNICIPAL LAW

a. International Rule

Before an international tribunal, a state may not plead its own law as an excuse for failure to comply with international law. The state must modify its laws to ensure fulfillment of its obligations under the treaty, unless the constitutional violation is manifest and concerns a rule of internal law of fundamental importance.

b. Municipal/Domestic Rule

When the conflict comes before a domestic court, domestic courts are bound to apply the domestic law. Should a conflict arise between an international agreement and the Constitution, the treaty would not be valid and operative as domestic law. It does not, however, lose its character as international law.

c. Fitzmaurice Compromise

Assumes that since the two systems, international and national law, do not operate in common field, they can never come into conflict. Each one of them is supreme in its own domain, thereby any apparent conflict in the domestic field is automatically settled by the domestic conflict rules of the forum and any conflict in the international field would be resolved by international law.

3. Sources of International Law

A. Sources

1. Primary Sources

a. Treaty

b. Customs

i. Elements of Customs

I. States Practice

a. Duration

b. Uniformity

c. Generality

ii. Instant Custom

2. Secondary Sources

a. Judicial Decisions

b. Teaching of Highly Qualified Publicist

1. Requisites for a Highly Qualified Publicist

3. Other sources

a. Hard Law

b. Soft Law

A.SOURCES, In General

1. BROWNLIE

a.Formal sources

Legal procedures and methods for the creation of rules of general application which are legally binding on addressees.

Equivalent in international law is principle that general consent of states creates rules of general application

b.Material sources provide evidence of the existence of concensus among states concerning particular rules or practices which, when proved have the status of legally binding rules of general application

2. Art. 38, ICJ Statute

a.International conventions

b.International custom

c.General principles of law recognized by civilized nations

d.Judicial decisions and teachings of the most highly qualified publicists

B.International Custom

1. Definition

a.Evidence of a general practice accepted as law (Article 38, ICJ)

b.General recognition among states of a certain practice as obligatory (Brierly)

c.Distinguished from mere usage, involves practice that reflects a legal obligation; Requires concurrence of two elements:

An objective element, state practice

The subjective element of opinio juris

d.A general and consistent practice of states which is followed by them from a sense of legal obligation (Theodor Meron)

2. Kinds of Custom

a.General custom (binding on almost all states)

b. Particular and Local Custom

Custom need not always be general, that is, binding on all or most states

Court conceded the possibility that local custom existed.

Considered possibility that local custom could exist (Asylum Case). Same standards for establishing existence of general custom is applicable

Recognized the existence of a bilateral custom (The Right of Passage Case)

3. Evidence

a.Diplomatic correspondence

b.Policy statements

c.Press releases

d.Opinions of official legal advisers

e.Official manuals on legal decisions (i.e. executive decisions and practices, government comments on drafts by the ILC)

f.International and national judicial decisions

g.Recitals in treaties and international instruments

h.Practice of international organs

4. Elements

a.Duration No particular duration or passage of time is required provided the consistency or generality of practice are proved

b.Uniformity, consistency of the practice

Subject to court appreciation

Mere substantial uniformity and not complete uniformity is essential (Brownlie)

c.Generality of the practice universality is not required

d.Opinio juris sive et necessitates - ("an opinion of law or necessity") or simplyopinio juris("an opinion of law") is the belief that anactionwas carried out because it was a legalobligation. This is in contrast to an action being the result of differentcognitivereaction, or behaviors that were habitual to the individual. This term is frequently used in legal proceedings such as a defense for a case.

Recognition of the validity of the rules in question as a form of legal obligation in the practice of states

Belief on the part of States that a particular practice is required by law

Two approaches for determining opinio juris in the practice of courts

1. Existence of an opinio juris is assumed on the bases of evidence of a general practice, or a consensus in the literature, or the previous determinations of the Court or other international tribunals;

2. Need for more positive evidence of the recognition of the validity of the rules in question in the practice of states. (i.e proof of custom outlined in the Lotus Case and North Sea Case)

5. Other Issues

a.Persistent objector Rule that a state may contract out of a custom in the process of its formation

Evidence of objection must be clear

Presumption of acceptance of a custom must be rebutted

Principle was recognized in the Anglo-Norwegian Fisheries Case and the North Sea Continental Shelf Case

b.Subsequent objector presumably, if a substantial number of states assert a new rule, the subsequent contracting out of old rules, complemented by acquiescence by other states may result in a new rule

c.Proof of custom The proponent of a custom has the burden of proof the nature of which varies according to the subject matter

d.Absence of protest as a measure of generality of practice (Brownlie)

Where several states do not object, whether the practice is deemed sufficiently general to constitute custom among them

The absence of protest could be considered evidence of the binding nature of the customary practice (Akehurst)

6. Cases

a.North Sea Continental Shelf Case, ICJ Reports (1969)

On whether there is a custom regarding the equidistance special circumstances basis of delimiting the continental shelf

On proof of opinio juris

Passage of only a short period of time is not necessarily a bar to the formation of new customary law.

Within that period, although short, State practice should be both extensive and virtually uniform in the sense of the provision invoked that such State practice occur in a way to show a general recognition that a rule of law or legal obligation is involved.

b.Case Concerning Military and Paramilitary Against Nicaragua (Nicaragua vs. US)

Proof of custom (citing North Sea Case)

The acts concerned must amount to a settled practice.

Settled practice must be accompanied by opinio juris sive necessitates (That the States taking action or the states reacting must have behaved so that their conduct is evidence of a belief that the practice is rendered obligatory by the existence of a rule of law requiring it.

c.Asylum Case, ICJ Reports (1950)

Case involving the practice in the exercise of diplomatic asylum by states

Party relying on custom must prove that this custom is established in such a manner

That it has become binding on the other party

That the rule invoked is in accordance with a constant and uniform usage practiced by the States in question

That the usage is an expression of a right appertaining to the State invoking and a duty incumbent on the State against whom invoked

C.Treaties

1. Definition

a.An international agreement concluded between States

b.In written form

c.Governed by international law

d.Whether embodied in a single instrument or in two or more related instruments

e.Whatever its particular designation.

2. Nature

a.Constitutes law between the parties, who, under the principle of pacta sunt servanda, are required to fulfill their treaty obligations. (VCLOT, Article 26)

b.Every treaty in force is binding upon the parties to it and must be performed by them in good faith. (VCLOT, Article 26)

c.Create general norms for the future conduct of the parties in terms of legal propositions

d.Those where the obligations are basically the same for all parties

e.In principle binding only on parties to the treaty

3. Examples of what are regarded as treaties

a.Treaties

b.Executive agreements (In Philippine law, while both treaties and executive agreements are equally binding, only treaties require Senate concurrence for their effectivity

c.Exchanges of notes

4. Stages for Execution of Treaties

a.Negotiation

b.Adoption of the text of the treaty by the parties

By the parties giving of consent

For multilateral treaties, consent of 2/3 of the parties is needed

Adoption merely fixes the text of the treaty; It gives no binding obligation yet.

c.Subsequent consent to be bound by the terms of a treaty given through

Signature, when the negotiator is authorized to sign the treaty

Ratification, the formal consent to the treaty given by the Head of State, sometimes in conjunction with the legislature.

Accession, the acceptance of treaty by a state that did not participate in its negotiation

When signature without ratification is sufficient [Article 12(1), VCLOT]

The treaty provides that signature shall have that effect;

It is otherwise established that the negotiating States were agreed that signature should have that effect; or

The intention of the State to give that effect to the signature appears from the full powers of its representative or was expressed during the negotiation

Ratification when imperative [Article 14(1), VCLOT]

The treaty provides for such consent to be expressed by means of ratification;

It is otherwise established that the negotiating States were agreed that ratification should be required;

The representative of the State has signed the treaty subject to ratification

5. Other issues

a.Contract Treaties vs. law-making treaties

Contract Treaties Bilateral arrangements [entered into between two or a few States] concerning matters of particular or special interest to the contracting parties (Salonga)

Law-making treaties - Executed by a large number of States (Salonga)

To declare the law on a particular subject

To stipulate general rules for future conduct

To create an international institution.

Distinction is important in deciding whether particular treaty obligations have crystallized into customary norms.

Basis for classification of a treaty as falling into either category: Nature and effect of the norms they contain

It is lawmaking or legislative where there is an inherent or juridical element in those treaties (i.e. 'dispositive' or 'real' character of the transaction effected by the treaty, and the permanent nature created by or in pursuance of the treaty)

b.Treaty vis--vis Custom

Possibility for the same norm to exist both as a customary norm and as conventional norm (i.e. the prohibition of aggressive war)

The customary norm, even if its content is identical with that of a treaty norm, retains a separate identity.(Brownlie)

Modes by which a norm acquires such dual character (Akehurst)

A treaty provision may simply restate a customary norm

A treaty provision may crystallize into a customary norm

A treaty provision may constitute evidence of custom.

c.How treaties cystallize into custom:

The provision must be norm-creating

The treaty must be lawmaking, creating legal obligations, which are not dissolved by their fulfillment.

The number of parties, the explicit acceptance of rules of law, and, in some cases, the declaratory nature of the provisions produce a strong law-creating effect at least as great as the general practice considered sufficient to support a customary rule. (Brownlie)

d.Treatment of Resolutions by International Organizations (i.e. GA or SC Resolutions of the United Nations)

UN GA resolutions

Have no binding effect under the UN Charter, save in limited fields like budgetary matters (Article 17, UN Charter)

Generally just regarded as recommendations

May constitute a kind of state practice, and thus, have some significance in the development particularly of customary law.

Factors to consider in determining the legal significance of such resolutions (Higgins)

Whether they are binding or recommendatory

The majorities supporting them

The repeated practice in relation to them

On evidence of opinio juris

6. Case Concerning Military and Paramilitary Against Nicaragua (Nicaragua vs. US), ICJ Reports (1986)

The termination of the treaty obligation will not itself bring about dissolution of the customary norm; A state that cannot invoke another state's liability for violating a treaty can still invoke the liability for the breach of custom, even if they involve the same obligation.

D. General Principles of Law

1. Nature

a.Rules accepted in the domestic law of all civilized states

b.General principles of municipal jurisprudence, particularly private law, insofar as they are applicable to relations of states. (Brownlie citing Oppenheim)

2. Examples

a.Roman Law principles

Principle of consent - Sovereign equality solemnly emphasizes the same basic initial position of all States: their same legal capacity. Theoretically, no State, large or small, would consider itself bound by rules to which it has not consented. For international conferences and organizations this means unanimous decision-making ( International Organizations or Institutions, Decision-Making Process). Sovereign equality moreover implies that States are not subject to foreign jurisdictions without their consent.

Principle of prescription 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. Prescription in international law requires long, continued and adverse possession to vest acquisitive title in the claimant.

Principle of res inter alios acta - has a common meaning: "A matter between others is not our business." It provides that the rights of a party cannot be prejudiced by an act, declaration, or omission of another.

Principle of res judicata means "a thing decided" in Latin. It is a common law doctrine meant to bar re-litigation of cases between the same parties in Court. Once a final judgment has been handed down in a lawsuit subsequent judges who are confronted with a suit that is identical to or substantially the same as the earlier one will apply res judicata to preserve the effect of the first judgment. This is to prevent injustice to the parties of a case supposedly finished, but perhaps mostly to avoid unnecessary waste of resources in the court system. Res judicata does not merely prevent future judgments from contradicting earlier ones, but also prevents them from multiplying judgments, so a prevailing plaintiff could not recover damages from the defendant twice for the same injury.

b.Procedural rules

Use of circumstantial evidence

c. Substantive obligations

Principle of reciprocity states that favours, benefits, or penalties that are granted by one state to the citizens or legal entities of another, should be returned in kind.

Pacta sunt servanda means that treaties must be observed in good faith despite hardship on the contracting state

Duty to observe good faith one of the fundamental rules of international law is pacta sunt servant, which requires the performance in good faith of treaty obligations. Despite supervening hardships such as conflicts with the municipal law or prejudice to the municipal interest, the parties must comply with their commitments under a treaty and can not ignore nor modify its provisions without the consent of the other signatories.

Duty to make restitution - Restitution is generally associated with the idea of returning something lost or stolen to its legitimate owner. In international law, however, the notion of restitution is linked with the issue of state responsibility. In this sense, restitution is one of the forms through which a state may discharge its obligation to provide reparation for the harm caused by its wrongful acts. More precisely, the term is used, in international practice, in at least two senses. In the strict sense, it signifies the return of unlawfully taken property to the original owner. In the broad sense, restitution (or, in its Latin version, restitutio in integrum) is the re-establishment, as far as possible, of the situation that existed before a wrongful act was committed.

d.Others

Principle of equality of states states are juridically equal, enjoy the same rights, and have equal capacity in their exercise. The rights of each one do not depend upon the power which it possesses to assure its exercise, but upon the simple fact of its existence as a person under international law.

Principle of finality of awards and settlements is one of the factors which has pitched arbitration against constitutional rights advocates. The argument is that everyone has a constitutional roght to court for the determination of disputes therefore any agreement which precludes a person from going to court must be unconstitutional.

The underlying principle is that an arbitration agreement is subordinate to the

constitutional right to go to court and have disputes resolved. Therefore, it is felt that

an arbitration agreement does not and cannot preclude the right to go to court.

Principle of legal validity of agreements

Principle of domestic jurisdiction nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter.

Principle of freedom of the seas - doctrine that ships of any nation may travel through international waters unhampered. It includes the right of neutral shipping in wartime to trade at will except where blockades are established.

3. Cases

a. Corfu Channel Case, ICJ Reports (1949)

Recourse to circumstantial evidence as indirect evidence is admitted in all systems of law and its use is recognized by international decisions

b. Chorzow Factory Case, 1928 PCIJ Ser. A, No. 17

It is a principle of international law that any breach of an engagement involves an obligation to make reparation

c. Barcelona Traction, Light and Power Company Case, ICJ Reports (1970)

General conception of the limited liability company to be found in systems of municipal law

E.Judicial Decisions and Writings of Publicists

1. Judicial Decisions

a. Nature

While not constituting a formal source of the law, is regarded as authoritative evidence of the state of the law (Brownlie)

Exercise considerable influence as an impartial and well-considered statements of the law by jurists made in the light of actual problems (Salonga)

b. Examples of International Tribunals (Brownlie)

International Court of Justice and its predecessor, the Permanent Court on International Justice

Permanent regional courts

European Court of Justice

European and Inter-American Courts on Human Rights

Ad hoc and permanent arbitral tribunals

US-Mexico Claims Commission

Permanent Court of Arbitration

Ad hoc tribunals

International Military Tribunal at Nurnberg

International Military Tribunal in the Far East

Organizational tribunals

Panels and appellate body of the World Trade Organization

Arbitration facilities as in the International Center for the Settlement of International Disputes (ICSID) of the World Bank

International Labor Organization

Commission on Human Rights

Ad hoc and permanent criminal courts

International Criminal Tribunal for Rwanda

International Criminal Tribunal for Yugoslavia

International Criminal Court

c. Issues

Judicial precedent

Article 59, ICJ Statute: That decisions of the Court has no binding force except as between the parties and in respect of that particular case

Though without strictly a doctrine of precedent, the Court strives to maintain judicial consistency

Sources of judicial decisions

Decisions of arbitral tribunals

Decisions of the ICJ and its predecessors

Decisions of Courts of Justice of the European Communities

Decisions of national courts

Ad hoc international tribunals

Pleadings in cases before international tribunals

2. Writings of Publicists

a. Nature:

Constitute mere evidence of law

Issues (Brownlie)

That some publicists may be expressing not what the law is (lex lata) but what they think the law should be or will become (lex ferenda)

Any appraisal of publicists will tend to colored by subjective factors.

b. Sources analogous to the writings of publicists

Draft articles of the International Law Commission

Harvard Research drafts

Separate and dissenting opinions of judges of the World Court

F.Other Sources of Law

1. Ex Aequo et Bono [Article 38(2) of the ICJ Statute]

a. Literally means 'from what is equitable and good'

b. Possible application

Consider as the equivalent of the application of equity

Consider as implying the use of compromise, conciliation and friendly settlement between the parties

2. Equity

a. Defined: The application of standards of justice that are not contained in the letter of the existing law

b. Usually applied in maritime demilitation cases and territorial disputes

3. Unilateral Declarations

a. Eastern Greenland case

The statement of Norway's Foreign Minister on Denmark's territorial claim led the Court to resolve that Denmark not only had a superior claim, but that Norway was bound by the Ihlen Declaration not to oppose it.

b. Nuclear Test Cases

The statement of France that it would cease atmospheric nuclear tests, signaled that there had ceased to be a dispute, since France had bound itself to do what Australia and New Zealand wanted.

Declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations.

No quid pro quo, nor any subsequent acceptance, nor even any reaction from other States is required for such declaration to take effect.

G. The Status of Norms

1. Jus Cogens

a. Norms deemed to have a superior status in international law, admitting of no derogation.

b. Peremptory or non-derogable norms

c. Distinguished from jus dispositivium, which states may derogate from or limit through their agreements (Magallona)

d. Effect where a norm is jus cogens in character

A treaty provision violating jus cogens norms would be void (Article 53, VCLOT)

A subsisting treaty provision would be voided by the creation of a new peremptory norm. (Article 64, VCLOT)

2. Erga Omnes

a. International obligations of such a nature that their violation by any state allows any other state to invoke the violator's liability, even if only one state or only a few incurred direct material damage.

b. Barcelona Traction Light and Power Co Case

The grant of standing to sue because of violations of an erga omnes obligation is premised on the idea that the maintenance of some norms are of interest to the entire world community, their violation being an injury to the interest, not only of the state directly offended, but of all states. (i.e. outlawing acts of genocide or aggression)

H. Problems

1. The Question of UN General Assembly Resolutions

a. Western Sahara Case

On the many GA Resolutions on self-determination: The repetition of certain rules or provisions in later General Assembly resolutions goes to the question of uniformity or constancy of practice

b. Texaco vs Libya

Reliance by arbitral tribunals on General Assembly Resolutions regarding the rules on expropriation

4. Subjects

a. States

b. International Organizations

c. Individuals

Actors / Subjects in International Law

A. In General

1. Subject Defined: Entity capable of possessing international rights and duties and having the capacity to maintain its rights by bringing international claims (Reparations for Injuries Case)

2. Object Defined: The person or thing in respect of which rights are held and obligations assumed by the subject

3. Contexts in which question of personality arises

a.Capacity to make claims in respect of breaches of international law

b.Capacity to make treaties and agreements velid on the international plane

c.Enjoyment of privileges and immunities from national jurisdictions

4. Established Legal Persons in International Law

a.States

b.Political entities legally proximate to states (i.e. political settlements both in multilateral and bilateral treaties which have produced political entities)

c.Condominium as a joint exercise of state power within a particular territory by means of an autonomous local administration

d.Internationalized territories special status as created by a multilateral treaty and protected by an international organizations

e.International Organizations (i.e. United Nations)

f.Agencies of States

g.Agencies of Organizations

B. States

1. Definition

a.A group of people, more or less numerous, permanently living in a definite territory, under an independent government organized for political ends and capable of entering into legal relations with other states.

b.That which possesses the following qualifications under the Montevideo Convention on Rights and Duties of States

A permanent population

People defined:

a. An aggregate of individuals of both sexes

b. Who live together as a community despite racial or cultural differences

c. Sufficient in number to maintain and perpetuate themselves

d. Must live in a stable, political community

Territory defined: fixed portion of the surface of the earth inhabited by the people of the state. It must be permanent and indicated with precision because its limit generally define the jurisdiction of the state.

a. Must have control over a certain area

b. Need not be exactly defined by metes and bounds, so long as there exists a reasonable certainty of identifying it

c. Need not exactly be large in area

Government wields a legal order by means of centralized administrative and legislative organs; that institution or aggregate institutions by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a social state, or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them.

Independence - capacity to enter into relations with other states.

2. Recognition

a.Issue of legal significance of the reaction of other states to an act of another state which may or may not affect the legal rights or political interests of the other states (as establishing the existence of the state)

b.Two schools of thought:

Constitutivist school: The political act of recognition is a precondition of the existence of legal rights [of a State]

Declaratory school: Recognition is a mere declaration or acknowledgement of an existing state of law and fact, legal personality having been conferred previously by operation of law

3. Sovereignty, its significance in international law

a.Sovereignty

The supreme and uncontrollable power inherent in a State by which that State is governed (Cruz)

The general legal competence of states, including its power to exercise legislative jurisdiction, and the power to acquire title to territory (Brownlie)

b.Sovereignty vis-a-vis Equality of states principle (Brownlie)

Principle of Fundamental Equality of States [Article 2(1), UN Charter]

Principal corollaries of the sovereignty and equality of states

Jurisdiction over a territory and the people on it

Duty of non-intervention in areas of exclusive jurisdiction of other states

Dependence of international obligations of a State on its consent.

c.Varied Notions of Sovereignty (Cruz)

Legal vs. Political

Legal sovereignty - Authority to issue final commands

Political sovereignty - Power behind the legal sovereign or the sum of influences that operate upon it

Internal vs. External

Internal sovereignty Power to control states own internal affairs

External sovereignty - Power "to direct its relations with other States (independence)

d.Issues

Sovereignty and International Obligations (Brownlie)

Whether states become bound by an international obligations is dependent on its consent.

When a State binds itself by treaty to a particular undertaking, this obligation does not constitute a violation of sovereignty.

Act of entering into the treaty, and other binding international agreements, is itself an exercise of sovereignty (Aramco Case)

Doctrine of Reserved Domain Jurisdiction (Brownlie)

That nothing in the Charter authorizes the UN to intervene in what is essentially within this reserved domain or requires members to submit such matters to settlement under the Charter [Article 2(7) of the UN Charter]

Reserved domain as the domain of state activities where the jurisdiction of states is not bound by international law

Limitation: Without prejudice to the use of enforcement measures under Chapter VII of the Charter [Article 2(7) of the UN Charter]

4. Territorial Sovereignty / State Territory in General

a.Territorial Sovereignty, Basic Points

Defined as the right to exercise in ones territory to the exclusion of any other state, the functions of a state.

That the exercise of this is not absolute is manifested by the following prohibitions:

A State may not cause injury to aliens within its borders

A State may not allow acts within its borders that may harm the environment in other states (US vs. Canada / Nuclear Test Cases)

b.Types of jurisdictional regimes over territory

Territorial sovereignty

Regime of territories not subject to the regime of any state but have a regime of their own (e.g., trust territories)

Res nullius, i.e., subject matter legally susceptible to state acquisition but not yet placed under territorial sovereignty

Res communis, pertaining to those territories not capable of being places under state sovereignty (e.g., outer space) Brownlie

c.Methods of acquiring territory

Discovery

Though formerly allowed, the law at present requires that this be followed up with effective occupation. (Island of Palmas Case)

Under the present law, discovery gives the State an inchoate title that entitles it to perfect its claim by exercising effective control over the area within a reasonable time.

Occupation

Acquisition by a state of terra nullus, (unoccupied land, or land not possessed by any other state), whether that land was never occupied or was abandoned. (August)

Requisites

iThe making of a claim by the state, usually through discovery

iiThe subsequent exercise of effective control over the territory, through occupation or other activity

iiiAnimus occupandi, the intent to acts as sovereign.

Accretion

The gradual deposit of soil by a river flowing past a shore or by an ocean along its coasts

Follows the principle that what is added follows the principal thing to which the adding is done. (i.e. A riparian State as acquiring title to the accretion to its coasts)

Prescription

Definition: When a State continually occupies and acquires title to land that formerly belonged to another state.

Vis--vis Abandonment: Abandonment means a retreat from territory

Requisites (Von Glahn)

iA state occupies territory that is claimed by another

state

iiThe occupying state exercises sovereignty over it

iiiThe owner makes no protest

ivEventually, the original title lapses

vThe occupying state acquires lawful title

Cession

Voluntary cession - a State relinquishes title over territory to another, usually through a treaty

Conquest

The acquisition of territory through the use of force (August)

Requisites

iThe intent to appropriate

iiThe ability to maintain control of, the subjugated territory, demonstrated by undisputed de facto possession over a sufficient period of time.

No longer a valid means of acquiring title, aggressive war been presently condemned by the UN Charter and by customary law

d.Intertemporal Law

The rights derived from a legally significant act depend on the norms of law in force at the time the act was concluded

Whether a State has acquired title to a particular area of territory depends on the law at the time the act of acquisition was done, and not on international law as it stands today (Brownlie)

The continued existence of a right acquired under the old law depends on the law as it evolves (Island of Palmas Case)

e.Air and Space

A State has complete sovereignty over the airspace over its territory and its territorial sea, and has jurisdiction over an aircraft from the moment it enters the said airspace (August)

A State has no rights of sovereignty in outer space, which, with the moon and all celestial bodies, constitutes "the province of all mankind" (August)

The question is where airspace and sovereignty ends, and outer space and res communis begins.

C. International Organi5. Extraditionzations

1.General Points

a.Considered subjects of international law "if their legal personality is established by their constituent instrument (charter)

b.Criteria of legal personality which an international organization needs to fulfill (Magallona quoting Brownlie)

It must constitute "a permanent association of states, with lawful objects, equipped with organs."

There must be "a distinction, in terms of legal powers and purposes, between the organization [and] its member states."

It must have legal powers that it may exercise "on the international plane and not solely within the national systems of one or more states."

c.Reparations for Injuries Case

Though the UN Charter did not expressly clothe the United Nations with the capacity to bring an international claim for reparations, the UN nevertheless possessed this power. The Organisation must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties."

2. The UN Charter and the Use of Force

a.Pertinent Rules on Use of Force under the UN Charter

Members are to refrain from the threat or use of force in their international relations against the territorial integrity and political independence of any state inconsistent with the UN [Arts. 2(4)], 24(1), 25, 23(1), 27(3), UN Charter

b.Cases

Military and Paramilitary Activities In and Against Nicaragua

The prohibition against the use of armed force is part of customary international law

An exception to the rule prohibiting force is the exercise of the right to self-defense

iThe submission of the exercise of the right of self-defense to the conditions of necessity sand proportionality is a rule of customary international law.

iiSelf-defence warrants only measures which are proportional to the armed attack and necessary to respond to it

iiiIn individual self-defense, the exercise of the right is subject to the State having been the victim of an armed attack.

ivBy an armed attack is meant not only action by regular forces across an international border but also the sending by or on behalf of a state of armed bands, groups, irregulars, mercenaries etc, which carry out acts of armed force against another State.

Legality of the Use By a State of Nuclear Weapons

The prohibition on the use of armed force in Article 2(4) of the UN Charter does not refer to specific weapons. It

While the proportionality principle may not exclude in all case the use of nuclear weapons, such use to be lawful, must still meet the requirements applicable in an armed conflict (rules on humanitarian law)

Where the use of force in itself would be illegal, the threat to use such force would likewise be illegal

Mere possession of nuclear weapons is not an illegal threat to use force per se. It depends on whether the particular use of force envisioned is directed against the territorial integrity, political independence or against the UN purposes

3. International Court of Justice

a.Under the United Nations Charter

Designated the principal judicial organ of the United Nations (Arts. 92)

All UN members are deemed ipso facto parties to the Statute of the Court (Art. 93) 94, 96 UN Charter

b.Jurisdiction of the Court

Over whom

Over contentious cases between states, based on consent of the parties (Article 34(1)

The jurisdiction of the Court to hear and decide the merits of the case depends on the will of the parties (Anglo-Iranian Oil Case)

Who determines existence of jurisdiction

The court has jurisdiction to determine it own competence (competence de la competence)

In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court (Nottebohm Case)

Over what subject matter

Over all matters specially provided for in the Charter of the United Nations [Article 36(1)]

Over all legal disputes referred to the Court on recommendation of the United Nations [Article 36(3)]

Compulsory jurisdiction of the court, where the legal dispute concerns [Article 36 (2)]

iInterpretation of a treaty

iiQuestion of international law

iiiExistence of facts, which if established, constitutes a breach of an international obligation

ivNature or extent of reparation to be made for the breach of an international obligation

c.Applicable Law: The court is to decide in accordance with international law such disputes as are submitted to it (Article 38)

d.Advisory Opinions

May be given by the Court on any legal question at the request of whatever body may be authorized by pr in accordance with the Charter of the UN to make the request. [Article 65(1)].

May be requested by both the General Assembly and the Security Council (Article 96)

Uses

Assist political organs in settling disputes

Provide authoritative guidance on points of law arising from the functions of organs and specialized agencies

D. The Individual

1.Preliminary Points

2. Human Rights

a.States can agree to confer certain rights to individuals

b.Recognition of the need to protect individual human rights in the realm of international law

3. Nationality

a.In general

Membership in a political community, one that is personal and more or less permanent, not temporary (Salonga, PRIL)

The bond that unites individuals with a given state, that identifies them as members of that entity, that enables them to claim its protection, and that also subjects them to the performance of such duties as their state may impose on them. (Von Glahn)

b.Citizens vs. Nationals

Citizens - limited to those who are endowed with political and civil rights in the body politic of a State

Nationals - includes citizens as well as persons who, not being citizens, owe permanent allegiance to the State and are entitled to its protection.

c.Importance of Nationality in International Law

Determines whether a State can undertake diplomatic protection (to demand reparations from another State for the harm done to an individual) Nottebohm Case

May allow a State to claim legislative and judicial jurisdiction over an individual even outside its territory (Extraterritorial sovereignty)

d.Determining Nationality

State rights vis--vis determination of nationality (Von Glahn)

Liberty to determine who are and who are not its nationals

Liberty to set conditions for the conferment of nationality

Liberty to set conditions and means for its deprivation.

Limitations on the States power over its nationals (Nationality Decrees Issued in Tunis and Morocco, Advisory Opinion)

Universal Declaration of Human Rights: That "[n]o one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

International Covenant on Civil and Political Rights: That every child shall have the right to acquire nationality.

Nottebohm Case

iA grant of nationality may be recognized as valid yet be deemed to be ineffective in an international forum.

iiThe Court acknowledged Liechtenstein's power to decide Nottebohm's nationality under its domestic law, but noted that not all acts in domestic law are given binding effect as against other States, particularly in an international tribunal

4. Protection of Aliens

a.Basic Points in International Law

States are obliged to undertake the protection of foreign nationals in their territory from injury or loss, particularly as a consequence of unlawful acts (Barcelona Traction, Light and Power Co.)

States are bound to protect foreign nationals from the illegal acts of their own public officials (Noyes Claim)

b.Ways by which a state violates its duty to protect foreign nationals

When the state itself or its organs or officers, under the color of authority, violate the rights of aliens, where officers act in their official capacity, since such acts are directly imputable to the state that employed them.(Caire claim)

When it fails to exercise due diligence to prevent injury or consequent damage from being inflicted on aliens by state officers and individuals

When it fails to undertake diligent efforts to prosecute and punish the miscreants who violated the rights of aliens and inflicted harm upon them.

c.Minimum Standard in the Treatment of Aliens

National standard: By which States are required to treat foreigners in the same way that it treats its citizens.

International standard: By which States should treat foreigners with a minimum standard of care set by international law, independently of how it treats its own citizenry. (Neer Claim)

d.Doctrine of Diplomatic Protection

That the State comes before the tribunal to ask relief for the violation of the rights of the State through the harm done to its citizens, and the tribunal would award damages to the State. (Oppenheim)

Exhaustion of local remedies (ELSI Case)

A requirement of diplomatic protection

Recognized as a general principle of international law

Requisites to use this as a defense against a states claim for diplomatic protection

iThere must be a claim by a state before an international tribunal

iiThe claim is for harm done to its citizen

iiiBut the citizen failed to exhaust the remedies available to him in his domestic state in order to obtain redress for the violation.

ivProvided such there are indeed effective remedies available within its jurisdiction.

5. Extradition

a.Definition

The surrender of an individual accused or convicted of a crime by a State within whose territory he is found and his delivery to the state where he allegedly committed crime or was convicted of a crime. (Magallona)

b.Nature

Characterized as a sui generis process.

Not a criminal proceeding

Not purely an exercise of ministerial functions

c.Extradition as practiced

Under Philippine law (Magallona)

Done only pursuant to a treaty and convention

With a view to criminal investigation or execution of a prison sentence

Under international law

No duty to extradite except pursuant to treaty

In the absence of a treaty, extradition would have to be subject to negotiation, subject to the consent of the extraditing state

d.Requirements for Extradition

The requesting State must specify the crime under the extradition treaty for which the fugitive or accused is sought (specialty principle)

The fugitive is to be tried only for the offense specified in the treaty

Double criminality that the offense for which one is to be extradited is also punishable in the requested state

e.Exceptions to Extradition (When a State may refuse to extradite)

The Political Offense Exception

When the person is charged with a political offense that is, an act directed against a security of a state.

Requisites of a political offense

iAn overt act

iiDone in support of a political rising

iiiWhich rising being connected with a dispute or struggle between two groups in a state as to who would control the government

When the Political Offense Exception is not applicable

iPersons accused of offenses that are considered to be crimes against international law must nonetheless be extradited, unless they can be effectively prosecuted in the state with custody (Bassiouni)

iiAttentat clauses - provisions in the extradition treaty that stipulate that an attempt against or taking of the life of a head of state or a member of his/her family does not constitute a political offense and is extraditable

The Nationality Exception

States may refuse to extradite persons when they are nationals of the requested state.

Doctrine of reciprocity: If a requesting State has, in the past, shown willingness to surrender its own citizens, then the detaining state is normally willing to extradite its own citizens, except when its Constitution forbids the surrender of its citizens.

6. International Criminal Law

a.Nuremberg Tribunal: On the question of individual responsibility

That international law imposes liabilities and duties upon individuals as upon states has long been recognized

Crimes within the jurisdiction of the tribunal

Crimes against peace

War crimes

Crimes against humanity

b.1949 Geneva Convention

Provided for individual responsibility for serious breaches of obligations therein provided

Provided for a duty by a Contracting State to search for persons alleged to have committed the grave breach and the prosecute them before their own courts, or to hand them over to another State capable of so prosecuting the offender (aut dedere, aut judicare).

In what instances may a state come into existence?

peaceful acquisition of independence

Revolution

Unification of several states

Seclusion

Agreement

Attainment of civilization

What are the Fundamental Rights of a State?

The right of existence and self- defense

The right of independence

The right of equality

The right of property and jurisdiction

The right of legation and diplomatic intercourse

5. Diplomatic and Consular Law and Immunities

A. Diplomatic and Consular Laws and Immunities

4. DIPLOMATIC AND CONSULAR RELATIONS

a. Right of Legation

c. Types

b. Diplomatic and Consular Immunities

c. Diplomatic v Consular Immunities

5. State and Diplomatic Immunity

a. Immunity, In General

b. State Immunity

c. Scope of State Immunity

d. Absolute

e. qualified

c. Act of State Doctrine

d. Process of Suggestion

e. Immunity of Foreign Armed Forces

DIPLOMATIC AND CONSULAR LAWS AND IMMUNITIES

iii. DIPLOMATIC AND CONSULAR RELATIONS

Right of Legation

The right of a state to maintain diplomatic relations with other states and entities granted with international personality. It is the right to send and receive diplomatic missions which enables States to carry on friendly intercourse.

Types

A. ACTIVE Right to send diplomatic representatives

B. PASSIVE Right to receive diplomatic representatives

c. Diplomatic and Consular Immunities

d. Personal

e. Inviolability of Immunity of premises

f. Right of protection

g. Immunity from local jurisdiction on the basis of international custom

h. Exemption from taxes and personal services

i. Inviolability of means of communication

j. Immunity from search of bag

d. Diplomatic v Consular Immunity

DIPLOMATIC IMMUNITY (Vienna Convention on Diplomatic Relations)

Premises of the mission include the BUILDINGS or parts of building and the LAND irrespective of ownership used for the purpose of the mission including the RESIDENCE of the head of mission.

The agents of the receiving state may NOT ENTER the premises except with the CONSENT of the head of the mission.

The diplomatic representative shall not be liable to any form of arrest and detention.

A diplomatic agent enjoys immunity from criminal jurisdiction of the receiving STATE. He may not be arrested, prosecuted or punished for any offense he may commit, unless his immunity is waived. The privilege, however, only exempts a diplomatic agent from local jurisdiction: it does not import immunity from legal liability.

The diplomatic agent also enjoys immunity from the civil and administrative jurisdiction of the receiving STATE, even with respect to his private life.

His properties are not subject to garnishment, seizure for debt, execution and the like.

The diplomatic agent also cannot be compelled to testify, not even by deposition, before any judicial or administrative tribunal in the receiving STATE without the consent of his government.

The diplomatic bag shall not be opened or detained.

A diplomatic agent shall enjoy immunity from jurisdiction of the receiving state except in case of:

2. REAL ACTION relating to private immovable property

EXCEPTION: HE holds it on behalf of the sending state for the purpose of the mission.

3. Actions for SUCCESSION

4. Professional or commercial activity

A diplomatic agent is NOT obliged to give evidence as a WITNESS.

CONSULAR IMMUNITY (Vienna Convention on Consular Relations)

Consular premises include the BUILDINGS or parts of building and the LAND irrespective of ownership used exclusively for the purpose of consular post.

The consular premises, their furnishings, the property of the consular post and its means of transport shall be immune from any form of requisition fro purposes of national defense or public utility. If expropriation is necessary for such purposes, all possible steps shall be taken to avoid impeding the performance of consular functions, and prompt adequate and effective compensation shall be paid to the sending State.

The agents of the receiving state may NOT ENTER the premises except with the CONSENT of the head of consular post.

The consent may be ASSUMED in case of fire on other disaster requiring prompt protective action.

The consular bag shall not be opened or detained.

Authorities may request that the bag be opened in their presence by an AUTHORIZED representative of the sending state if they have SERIOUS REASON to believe that the bag contains objects other that articles, documents, correspondence or articles.

Members of the consular post shall enjoy immunity from the jurisdiction of the receiving state in respect of acts performed in the EXERCISE OF CONSULAR FUNCTION except in case of:

Civil action arising out of a contract concluded by a person who DID NOT CONTRACT expressly or impliedly as an AGENT of the sending state.

Civil action by a third party fro damage arising from an ACCIDENT in the receiving state caused by a VEHICLE, VESSEL or AIRCRAFT.

Members of the consular post MAY be called upon to attend as WITNESSES.

If a consular officer should decline to do so, NO COERCIVE MEASURE or PENALTY may be applied.

iv. STATE AND DIPLOMATIC IMMUNITY

4. Immunity

GENERAL RULE: The jurisdiction of a state within its territory is complete and absolute.

EXCEPTIONS: Sovereign immunity and diplomatic immunity.

5. State Immunity

The state may not be sued without its consent. This is based on the principle of par in parem non habet imperium (an equal has no power over an equal).

b. Scope of State Immunity

B. ABSOLUTE

C. QUALIFIED IMMUNITY/RESTRICTIVE APPLICATION OF STATE IMMUNITY

State immunity now extends only to acts jure imperii, when the proceedings arise out of commercial transactions of the foreign sovereign, its commercial activities or economic affairs. However, it does not apply where the contract relates to the exercise of its sovereign functions. USA v Guinto (G.R. No. 76607, February 26, 1990)

6. Act of State Doctrine

Courts of one country will not sit in judgment on the acts of the government of another in due deference to the independence of sovereignty of every sovereign state. PCGG v Sandiganbayan (G.R. No. 124772, August 14, 207)

The act of state doctrine is one of the methods by which States prevent 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 a States obligation to respect the independence and equality of other States by not requiring them to submit t 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 government acts which a foreign State has performed within its territorial limits. PCGG v Sandiganbayan (G.R. No. 124772, August 14, 2007)

7. Doctrine of Sovereign Immunity

Immunity from jurisdiction is enjoyed by both the head of state and by the state itself.

8. Process of Suggestion

A process where the foreign state or the international organization sued in an American court requests the Secretary of State to make a determination as to whether it is entitled to immunity. If the Secretary of State finds that the defendant is immune from suit, he, in turn, asks the Attorney General to submit to the court a :suggestion that the defendant is entitled to immunity.

In the Philippines, the practice is for the foreign government or the international organization to first secure an executive endorsement of its claim of sovereign or diplomatic immunity. The DFA has made the endorsement through the following:

2. A LETTER that the defendant cannot be sued because it has diplomatic immunity. International Catholic Migration Commission v. Calleja (190 SCRA 130 (1990))

3. A Manifestation in Court and Memorandum as amicus curiae. Baer v. Tizon (57 SCRA 1 (1974)

The fact that the Solicitor General has endorsed claim of States immunity from suit does NOT sufficiently substitute for the DFA certification. GTZ v. CA (GR No. 152318, April 16, 2009)

The determination by the department is considered a political question that is conclusive upon Philippine Courts.

9. Immunity of Foreign Armed Forces

The rule in international law is that foreign armed forces allowed to enter ones territory are immune from local jurisdiction, except to the extent agreed upon. The Status of Forces Agreements involving foreign military units around the world vary in terms and conditions, according to the situation of the parties involved, and reflect their bargaining power. But the principle remains, i.e. the receiving State can exercise jurisdiction over the forces of the sending State only to the extent agreed upon by the parties. Nicolas v. Romulo (G.R. No. 175888, February 11, 2009)

BOOK OF MAGALLONA

6. Treaties

TREATY

It is an International Agreement in written form concluded between Sates that may be embodied in one or more instrument, and is governed by International Law. (Art.2, Vienna Convention on the Law of Treaties).

Under the Vienna Convention, the term treaty includes all agreements between states, regardless of how they are called. Thus, for purposes of international law, treaties, executive agreements, exchange of notes, etc. are called treaties. Note, however, that Philippine law makes a distinction between treaties and executive agreements. Both are equally binding, but only treaties require the concurrence of the Senate to be effective.

4. TREATY V. EXECUTIVE AGREEMENT

TREATY

SUBJECT MATTER:

CODE: PNP

5. POLITICAL Issues

6. Changes in NATIONAL POLICY

7. International arrangements of a PERMANENT character

Must be ratified by 2/3 of the Senate to become valid and effective (Art. 7, Sec.21)

EXECUTIVE AGREEMENT

SUBJECT MATTER:

Code: TITA

a. Arrangements of TEMPORARY nature

b. IMPLEMENTATION of treaties and statutes

c. TRANSITORY Effectivity

d. ADJUSTMENT of details carrying out established national policie and traditions

Does not need to be ratified by the Senate.

There are no hard and fast rules on the propriety of entering, on a given subject, into a treaty or an executive agreement as an instrument of international relations. The primary consideration in the choice of the form of agreement is the parties intent and desire to craft an international agreement in the form they so wish to further their respective interests. The matter of form takes a back seat when it comes to effectiveness and binding effect of the enforcement of a treaty or an executive agreement, as the parties in either international agreement each labor under the pacto sunt servanda principle. Bayan Muna v. Romulo (G.R. No. 159618, February 2, 2011).

5. POWER TO NEGOTIATE AND SENATE CONCURRENCE

In the realm of treaty-making, the President has the sole authority to negotiate with other states. It follows that Congress, while possessing vast legislative powers, may not interfere in the field of treaty negotiations. While Article VII, Section 21 provides for Senate concurrence, such pertains only to the validity of the treaty under consideration, not to the conduct of negotiations attendant to its conclusion. Moreover, it is not even Congress as a whole that has been given the authority to concur as a means of checking the treaty-making power of the President, but only the Senate. AKBAYAN v. AQUINO (G.R. No. 170516, July 16, 2008).

The signing of a treaty is composed of two separate and distinct process to which each requires the exclusive prerogative and act of the executive and legislative. One is the signing of the treaty which is handled by the executive DEPARTMENT during the NEGOTIATION stage. The other is the RATIFICATION stage where the PRESIDENT ratifies a treaty but with the concurrence of 2/3 of the Senate.

It is within the power of the President to refuse to submit a treaty to the Senate or, having refused its consent for ratification, refuse to ratify it. The Senates role is LIMITED only to giving or withholding its concurrence to the ratification. The Senate cannot, by mandamus, compel the executive to transmit a treaty for concurrence. Pimentel v. Executive Secretary (G.R. No. 158088, July 6, 2005)

6. PACTA SUNT SERVANDA

All parties tot Treaty must comply with their treaty obligation in good faith.

A state CAN AVOID PERFORMANCE if the treaty collides with its Constitution, but it CANNOT ESCAPE LIABILITY that It may incur as a result of such non-performance.

From the perspective of public international law, a treaty is favored over municipal law pursuant to the principle of pacta sunt servanda. A party to a treaty is not allowed to invoke the provisions of its internal law as justification for its failure to perform a treaty is always subject to qualification or amendment by a subsequent law, or that it is subject to the police power of the State. Lim v. Executive Secretary (G.R. No. 151445, April 11,2002.

7. REBUS SIC STANTIBUS

The general rule is that a FUNDAMENTAL CHANGE of circumstances is NOT A GROUND for treaty to be suspended or terminated.

Exceptions

a. The circumstances are the ESSENTIAL BASIS of consent.

b. The obligation is TRANSFORMED RADICALLY that it becomes burdensome or unreasonable.

Exceptions to the Exceptions

M. If the treaty establishes a BOUNDARY

N. If the fundamental change is the result of a BREACH by the party invoking t of an obligation under the treaty or of any other obligation owed to any other party to the treaty.

Rebus sic stantibus is an exception to the rule of pacta sunt servanda

.

8. PROCEDURES IN TREATY-MAKING

d. Negotiation

e. Signature

f. Ratification

g. Exchange of Instruments of Ratification

h. Registration with UN

i. TREATY RESERVATION

It is a unilateral statement made by a State when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effects of certain provisions of the treaty in their application to that State.

j. GROUNDS FOR INVALIDITY OF A TREATY

Code: DJ-FEC

c. Duress

d. Jus cogens

e. Fraud

f. Error of Fact

g. Corruption

k. GROUNDS FOR TERMINATION

Code: RAIN-DOVE-EL

1 Rebus sic stantibus

2 Accomplishment of purpose

3 Impossibility of performance

4 Novation

5 Extinction of one of parties, if treaty is bipartite

6 Desistance of parties

7 Voidance of treaty

8 Outbreak of war

9 Loss of subject matter

10 Expiration of Term

l. CLEAN SLATE RULE

When one state ceases to exist and is succeeded by another on the same territory, the newly independent state is NOT BOUND to maintain in force, or become a party to, any treaty made by its predecessor although at the date of succession of States the treaty was in force with respect to the territory to which the succession of State relates. (Art. 16, Vienna Convention on the Succession of States with Respect to Treaties)

Exceptions

When the new state agrees to be bound by the t