Pil Reviewer Midterms

Public International Law 2019-2020
If you cannot find recit questions to all cases or topics, it is because

recit questions are based on what I remember being asked during class.
I. there are questions of the applicability of foreign law
Nature of International Law or the role of foreign
1. Theories
a. Command/Positivist Relevant provisions:
- International law is not law because it does not come ART. II SECTION 2. The Philippines renounces war as an instrument
from a command of sovereign. of national policy, adopts the generally accepted principles of
- Discredited. international law as part of the law of the land and adheres to the policy
- IN REALITY: Nations see international law as of peace, equality, justice, freedom, cooperation, and amity with all
principles for free and orderly interaction. nations.
b. Consensual
- International law derives its binding force from the ART. VII SECTION 2. The Philippines renounces war as an instrument
consent of states. of national policy, adopts the generally accepted principles of
- Treaties are an expression of consent. international law as part of the law of the land and adheres to the policy
- Custom is seen as expression of consent. of peace, equality, justice, freedom, cooperation, and amity with all
- IN REALITY: There are many binding rules which do nations.
not derive from consent.
c. Natural Law ART. VIII SECTION 5. The Supreme Court shall have the following
- Law is derived by reason from the nature of man. powers:
- International law is said to be an application of natural (1) Exercise original jurisdiction over cases affecting ambassadors,
reason to the nature of the state-person. other public ministers and consuls, and over petitions for certiorari,
- Finds little support now, but much of customary law prohibition, mandamus, quo warranto, and habeas corpus.
and what are regarded as generally accepted (2) Review, revise, reverse, modify, or affirm on appeal or certiorari,
principles of law are in fact an expression of what as the law or the Rules of Court may provide, final judgments and
traditionally was called natural law. orders of lower courts in:
(a) All cases in which the constitutionality or validity of any
Public International Law treaty, international or executive agreement, law,
- Governs relationships between and among states presidential decree, proclamation, order, instruction,
and also their relations with international ordinance, or regulation is in question.
organizations and individual persons. (b) All cases involving the legality of any tax, impost,
assessment, or toll, or any penalty imposed in relation
Private International Law thereto.
- Is really domestic which deals with cases where (c) All cases in which the jurisdiction of any lower court is
foreign law intrudes in the domestic sphere where in issue.
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(d) All criminal cases in which the penalty imposed is national referendum held for that purpose, and recognized as a treaty
reclusion perpetua or higher. by the other contracting State.
(e) All cases in which only an error or question of law is
involved.
(3) Assign temporarily judges of lower courts to other stations as public
interest may require. Such temporary assignment shall not exceed six
months without the consent of the judge concerned.
(4) Order a change of venue or place of trial to avoid a miscarriage of
justice.
(5) Promulgate rules concerning the protection and enforcement of RECIT QUESTION:
constitutional rights, pleading, practice, and procedure in all courts, Q: Can the lower courts decide on cases of treaties or international or
the admission to the practice of law, the Integrated Bar, and legal executive agreements?
assistance to the underprivileged. Such rules shall provide a simplified A: Yes!
and inexpensive procedure for the speedy disposition of cases, shall Q: Legal basis?
be uniform for all courts of the same grade, and shall not diminish, A: Article VIII Section 5 (2)(a).
increase, or modify substantive rights. Rules of procedure of special
courts and quasi-judicial bodies shall remain effective unless
disapproved by the Supreme Court.
(6) Appoint all officials and employees of the Judiciary in accordance
with the Civil Service Law. II.
Sources of Obligation of International Law
ART. XIII SECTION 18. The Commission on Human Rights shall have
the following powers and functions: ARTICLE 38 of ICJ.
… 1. The court, whose function is to decide in accordance with
7) Monitor the Philippine Government’s compliance with international international law such disputes as are submitted to it, shall apply:
treaty obligations on human rights; a. International conventions, whether general or particular,
establishing rules expressly recognized by contesting states
ART. XVIII SECTION 25. SECTION 25. After the expiration in 1991 of b. International custom, as evidence of a general practice
the Agreement between the Republic of the Philippines and the United accepted as law
States of America concerning Military Bases, foreign military bases, c. General principles of law recognized by civil nations
troops, or facilities shall not be allowed in the Philippines except under d. Subject to the provisions of Article 59, judicial decisions and
a treaty duly concurred in by the Senate and, when the Congress so the teachings of most highly qualified publicists of various
requires, ratified by a majority of the votes cast by the people in a nations, as subsidiary means for the determination of rules of
law
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FACTS: RULING:
2. This provision shall not prejudice the power of the court to decide Malaya Lolas compels the They cannot compel the
ex aequo et bono, if the parties agree thereto. government to espouse their Executive Department to
claims for official apology and espouse their claims for official
ARTICLE 59 of ICJ. forms of reparations against apology and other forms of
The decision of the Court has no binding force except between parties Japan before ICJ. reparations against Japan.
Petitioners argue state has duty
and in respect to that particular case.
to protect its nationals and act on
his/her behalf when rights are
CUSTOMARY LAW injured.
HOWEVER, no sufficient
CUSTOM evidence a general international
- General and consistent practice of states followed by them obligation for states to exercise
from a sense of legal obligation. diplomatic protection of their own
nationals abroad.
Article 53 of Vienna Convention - No opinion juris
Treaties conflicting with a peremptory norm of general international has evolved in
law (jus cogens) such. ONLY
A treat is void if, at the time of its conclusion, it conflicts with a MORAL.
peremptory norm of general international law. For the purposes of the DOCTRINE/S:
present convention, a peremptory norm of general international is a - International Agreements generally wipe out claims
terminating any recourse under domestic law.
norm accepted and recognized by international community of states
- In international sphere, only government may bring a
as a whole as a norm from which no derogation is permitted and which claim to an individual’s behalf. It may assert such on
can be modified only by a subsequent norm of general international its own right.
law having the same character. - If Japan were to pay reparations to all its victims, it will
affect their economy and might create a problem.
JUS COGENS vis-a-vis ERGA OMNES (NOT SURE SA WORDING. Pero parang ganito
Jus Cogens sinabi ni Sir bakit nabanggit yung Jus cogens and
- Compelling norms of international law which cannot erga omnes)
be set side.
Erga Omnes
- Obligation of state to the international law. RECIT QUESTION
Q: How did/Did the court decide on the case?
Vinuya v. Romulo A: No. It is because the president or the executive has better
knowledge regarding international relations.
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Q: What do you call that? the premise that there is a rule of
A: Political question. law obliging states to allow for,
however generally, the
recognition and enforcement of a
foreign judgment. The bare
principle, to our mind, has
attained the status of opinio juris
Mijares v. Ranada in international practice.
FACTS: RULING: DOCTRINE/S:
Complaint was filed with US Judge erred when he concluded - There is no obligatory rule derived from treaties or
District Court against the Marcos that filing fees should be conventions that requires the Philippines to recognize
Estate. computed on basis of Sec. 7(a). foreign judgments, or allow a procedure for the
US awarded 1.9B. Final judgment Petitioners’ claim is based on enforcement thereof. However, generally accepted
was affirmed. foreign judgment. principles of international law, by virtue of the
Petitioners filed complaint with It is indubitable that the procedure incorporation clause of the Constitution, form part of
RTC for enforcement of Final for recognition and enforcement the laws of the land even if they do not derive from
Judgment. is embodied in the rules of law, treaty obligations.
whether statutory or - The classical formulation in international law sees
jurisprudential, adopted in various those customary rules accepted as binding result
foreign jurisdictions. In the from the combination two elements:
Philippines, this is evidenced 1. the established, widespread, and consistent
primarily by Section 48, Rule 39 practice on the part of States; and
of the Rules of Court which has 2. a psychological element known as the opinion
existed in its current form since juris sive necessitates (opinion as to law or
the early 1900s. Certainly, the necessity). Implicit in the latter element is a belief
Philippine legal system has long that the practice in question is rendered obligatory
ago accepted into its by the existence of a rule of law requiring it.
jurisprudence and procedural - The fact that there is no binding universal treaty
rules the viability of an action for governing the practice is not indicative of a
enforcement of foreign judgment, widespread rejection of the principle, but only a
as well as the requisites for such disagreement as to the imposable specific rules
valid enforcement, as derived governing the procedure for recognition and
from internationally accepted enforcement.
doctrines. Again, there may be
distinctions as to the rules
Other cited cases:
adopted by each particular
state,69 but they all prescind from Tanada v. Angara
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Poe-Llamanzares v. COMELEC that coast fishing vessels with their implements and
Q: difference between generally accepted principles of law (ART. 2) supplies, cargoes and crews, unarmed and honestly
and general principles of law recognized by civil nations pursuing their peaceful calling and of catching and
A: Generally accepted principles of international law include bringing fresh fish are EXEMPT from capture as prize
international custom as evidence of a general practice accepted as of war.
law and general principles of law recognized by civilized nation. Si
b. Consistency and Generality.
former based sa custom and kay LATTER.
North Continental Shelf Cases
FACTS: RULING:
Delimitation of continental shelf 1. The Court held that the
Elements of Custom between Germany and Denmark principle of equidistance,
1. Material Factor and Germany and Netherlands. as contained in Article 6
- How states behave did not form a part of
existing or emerging
State Practice: customary international
The initial factor for determining the existence of custom is actual law at the time of drafting
behavior of states. This includes: the Convention.
a. Duration – can be either short or long. 2. The Court held that
Article 6 of the
Paquete Habana Convention had not
attained a customary law
FACTS: RULING:
status.
At the breaking of recent war with Both captures were unlawful and
3. The Court concluded that
Spain, 2 fishing smacks with a without probable cause.
the equidistance principle
crew of 3 men and other schooner
was not binding on
with crew of 6 men were regularly
Germany by way of treaty
engaged in fishing on coast of
or customary
Cuba, sailing under Spanish flag
international law. In the
and owned by a Spanish subject,
case of the latter, the
residing in Havana.
principle had not attained
Upon return, vessels were
a customary international
captured by US blockading
law status at the time of
squadron.
the entry into force of the
DOCTRINE/S:
Geneva Convention or
- By general consent of civilized nations of the world
thereafter. As such, the
and independently of any express treaty or other
Court held that the use of
public act, it is an established rule of international law
the equidistance method
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is not obligatory for the FACTS: RULING:
delimitation of the areas Government of President - United States of America, by
concerned in the present Somoza was replaced by the training, arming, equipping,
proceedings. government installed by FSLN. financing and supplying the
DOCTRINE/S: Supporters opposed new contra forces or otherwise
- For a customary rule to emerge the Court held that it government. U.S. initially encouraging, supporting and
needed: supported but change when U.S. aiding military and paramilitary
(1) very widespread and representative participation found that Nicaragua was activities in and against
in the Convention, including States whose interests providing logistical support and Nicaragua, has acted, against
were specially affected (in this case, they were weapons to guerrillas in El the Republic of Nicaragua, in
coastal States) (i.e. generality); and [NOT MET] Salvador. breach of its obligation
(2) virtually uniform practice (i.e. consistent and Armed activities against the new under customary
uniform usage) undertaken in a manner that government was carried out with international law not to
demonstrates US support. intervene in the affairs of
(3) a general recognition of the rule of law or legal another State;
obligation (i.e. opinio juries). In the North Sea - By certain attacks on
Continental Shelf cases the court held that the Nicaraguan territory has
passage of a considerable period of time was acted, against the Republic of
unnecessary (i.e. duration) for the formation of a Nicaragua, in breach of its
customary law. obligation under customary
- The Court held that the duration taken for a customary international law not to use
law rule to emerge is not as important as widespread force against another State;
and representative participation, uniform usage, and - By directing or authorizing
the existence of an opinio juris. over Rights of Nicaraguan
- TIME ELEMENT: Although the passage of only territory, and by the acts
period of time was not necessarily a bar to the imputable to the United States
formation of new rule of customary international law referred to in subparagraph (4)
on the basis of what was originally a purely hereof, has acted, against the
conventional rule, it was indispensable that state Republic of Nicaragua, in
practice during that period, including that of states breach of its obligation
whose interests were specially affected, should have under customary
been extensive and virtually uniform in the sense of international law not to
the provision invoked and should have occurred in the violate the sovereignty of
such a way as to show a general recognition that rule another State;
of law was involved. - By laying mines in the internal
or territorial waters of the
Nicaragua v. US Republic of Nicaragua during
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the first months of 1984, the determine whether or not in the absence of the
United States of America has practice that actually prevailed, general international
acted, against the Republic of customs or general principles of law recognized by
Nicaragua, in breach of its civil nations.
obligations under customary
international law not to use Customary law may develop to that which may bind only several states
force against another State, or even only 2 states. BUT party claiming it must prove that it is also
not to intervene in its affairs, binding on the other party.
not to violate its sovereignty
and not to interrupt peaceful Persistent Objector Rule
maritime commerce;
- sovereign state which has consistently and clearly
objected to a norm of customary international law
DOCTRINE/S:
- Court does not consider that for a rule to be since the norm's emergence, and considers itself not
established as customary, the corresponding practice bound to observe the norm.
must be in absolute conformity with the rule.
- In determining the existence of customary rules, Asylum Case
courts deem it sufficient that the conduct of states FACTS: RULING:
should be consistent with such rules. That conduct Military rebellion broke out in - Colombia had not proved the
inconsistent with a given rule should generally have Peru. A decree was published existence, either regionally or
been treated as breaches of that rule. charging a political party with locally, of a constant and
having prepared and directed the uniform practice of unilateral
Right of Passage over Indian Territory rebellion. Head of the party, Victor qualification as a right of the
FACTS: RULING: Raul Haya de la Torre was state of refuge and an
Portugal sate its territory in the Portugal has right of passage as denounce as being responsible. obligation upon the territorial
Indian peninsula included 2 to civilians. Colombian Ambassador informed state.
enclaves surrounded by India. that Peruvian Government - Court found for Peru on this
Question arose of right of granted asylum to Haya de la issue, holding that Colombia
passage in favor of Portugal Torre and asked for safe conduct had not established the
through Indian territory and of to enable refugee to leave the existence of a custom
correlative obligation binding country. It also stated refugee is permitting the state granting
upon India. political refugee. diplomatic asylum to define
DOCTRINE/S: unilaterally the offense as
- Practice established between parties had required "political." For various
for the passage of armed forces, police and arms and reasons, the treaties cited by
ammunition the permission of the british/Indian both sides in support of their
authority rendered it unnecessary for the court to respective arguments did not
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apply. The court alluded to the - An exception to the rule that “asylum should not be
persistent objector doctrine granted to those facing regular prosecutions” can
while discussing a treaty occur only if, in the guise of justice, arbitrary action is
Colombia cited in support of substituted for the rule of law. Such would be the case
its argument. The if the administration of justice were corrupted by
International Court stated that measures clearly prompted by political aims.
Peru had not only failed to
ratify the treaty in question, it RECIT QUESTION:
had specifically repudiated Q: Difference of territorial asylum v. diplomatic asylum.
the asylum provisions. A:
Therefore, Peru was not
Territorial asylum is about giving permission for foreigners to enter
bound by the treaty
provisions, even if they had and stay in the country, since they are prosecuted and discriminated
attained the status of custom. for their religious, political or cultural views or activities. A person is
guaranteed that he or she would not be handed back at a request of
DOCTRINE/S: the state of their citizenship
- “But even if it could be supposed that such a custom Diplomatic asylum is about giving a protection in the buildings of the
existed between certain Latin-American States only, diplomatic representatives in a foreign country.
it could not be invoked against Peru which, far from A person who applies for the asylum stays outside the country, where
having by its attitude adhered to it, has, on the he or she committed a crime or is prosecuted because of racism or
contrary, repudiated it by refraining from ratifying the his/her political and religious views. Granting the asylum does not
Montevideo Conventions of 1933 and 1939, which mean excluding an individual from the jurisdiction of the state,
were the first to include a rule concerning the because at that moment he stays on the
qualification of the offence in matters of diplomatic territory of a country that gives it.
asylum.”
A procedure of providing a shelter in diplomatic establishments.
- The court held that there was no expressed or implied
right of unilateral and definitive qualification of the
State that grants asylum under the Havana Domingues v. US
Convention or relevant principles of international law. FACTS: RULING:
The Montevideo Convention of 1933, which accepts The Petitioner states that Mr. - As noted above, nearly every
the right of unilateral qualification, and on which Domingues had been convicted nation state has rejected the
Colombia relied to justify its unilateral qualification, and sentenced to death in respect imposition of capital punishment
was not ratified by Peru. The Convention, per say, of two homicides that occurred in to individuals under the age of 18.
was not binding on Peru and considering the low the state of Nevada in 1993. Mr. They have done so through
numbers of ratifications the provisions of the latter Domingues was 16 years old ratification of the ICCPR, U.N.
Convention cannot be said to reflect customary when the crimes were committed. Convention on the Rights of the
international law. The Petitioner further states that Child, and the American
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on November 1, 1999 the Convention on Human Rights, by treaty or by the objection of a state, persistent or
Supreme Court of the United treaties in which this proscription otherwise
States declined to review a ruling is recognized as non-derogable,
by the Supreme Court of the State as well as through corresponding
of Nevada permitting the amendments to their domestic
execution of a person convicted laws. The acceptance of this RECIT QUESTION:
of a crime committed while a norm crosses political and Q: Can the US invoke that they persistently objected on having under
juvenile. As of the date of this ideological boundaries and efforts 18 juvenile criminal be on death row? (Domingues v. CA)
report, no date for Mr. to detract from this standard have A: No. Kasi may jus cogens norm that children of below 18 who have
Domingues’ execution had been been vigorously condemned by committed crimes cannot be put on death row.
scheduled. members of the international
community as impermissible
under contemporary human For a state to become a persistent objector, the state must:
rights standards. Indeed, it may
be said that the United States 1. Object to the practice at the initial stages of the formation of
itself, rather than persistently customary law and continue to object in a sustained manner;
objecting to the standard, has in or
several significant respects 2. Adopt a contrary practice at the initial stages of the formation
recognized the propriety of this of customary law and continue to do so a sustained manner.
norm by, for example, prescribing
the age of 18 as the federal 2. Subjective Factor
standard for the application of - Why they behave the way they do.
capital punishment and by
ratifying the Fourth Geneva
Opinio Juris Sive Necessitatis (an opinion of law or necessity)
Convention without reservation to
this standard. The Commission - It is the belief that an action was carried out because
considers that the United it was a legal obligation.
States is bound by a norm of
jus cogens not to impose
capital punishment on North Continental Shelf Cases
individuals who committed FACTS: RULING:
their crimes when they had not Delimitation of continental shelf REFER TO ABOVE
yet reached 18 years of age. . between Germany and Denmark
DOCTRINE/S: and Germany and Netherlands.
- As a jus cogens norm, this proscription binds the
community of States, including the United States.
The norm cannot be validly derogated from, whether
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DOCTRINE/S:
- To achieve opinion juris: ARTICLE 59 of ICJ.
1. Acts concerned amount to a settled practice The decision of the Court has no binding force except
2. Acts must be carried out in a way as to be between parties and in respect to that particular case.
evidence of a belief that this practice is rendered
obligatory by the existence of a rule of law Such decisions of the Court do not constitute stare decisis.
requiring it.
- The need for such a belief, i.e, the existence of a
subjective element, is implicit in the very notion of the RECIT QUESTION:
opinio juris sive necessitatis. Q: What is stare decisis?
- The States concerned must therefore feel that they A: It is a legal doctrine that obligates courts to follow historical cases
are conforming to what amounts to a legal obligation. when making a ruling on a similar case. To stand by things decided.
The frequency, or even habitual character of the acts
is not in itself enough. There are many international
acts, e.g., in the field of ceremonial and protocol, Teachings of Highly Qualified Writers and “Publicists.”
which are performed almost invariably, but which are
motivated only by considerations of courtesy, Publicists – are institutions which write on international law.
convenience or tradition, and not by any sense of
legal duty.”
Ex aequo et bono v. Equity
GENERAL PRINCIPLES OF LAW RECOGNIZED BY CIVIL
Ex aequo et bono (According to what is just and fair)
NATIONS
- Judicial discretion on the basis of which the judge
decides about the matter
Poe-Llamanzares v. COMELEC
- Consent is needed.
Q: difference between generally accepted principles of law (ART. 2)
and general principles of law recognized by civil nations
Equity
A: Generally accepted principles of international law include
- Is an instrument whereby conventional or customary
international custom as evidence of a general practice accepted as
law may be supplemented or modified in order to
law and general principles of law recognized by civilized nation. Si
achieve justice.
former based sa custom and kay LATTER.
- Procedural aspect: it means a mandate given to a
judge to exercise discretion in order to achieve a
determination that is more equitable and fair.
JUDICIAL DECISIONS AND TEACHINGS OF HIGHLY QUALIFIED
PUBLICISTS Different Kinds of Equity:
Judicial Decision
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1. Intra legem (within the law) – the law is adapted to the facts DOCTRINE/S:
of the case Individual Concurring Opinion of J. Hudson:
2. Praeter legem (beyond the law) – used to fill the gaps within - The question here is of a general principle of law re-
the law cognized by civilized nations in the sense of Article 38
3. Contra legem (against the law) – refusal to apply the law of the Statute, and the Court's recognition of equity as
which is seen as unjust. part of international law is in no way restricted by the
special power conferred on it to decide a case ex
aequo et bono if the Parties so agree.
- "It would seem to be an important principle of equity
that where two parties have assumed an identical or
Diversion of Water from the Meuse a reciprocal obligation; one party which is engaged in
FACTS: RULING: a continuing non-performance of that obligation
The construction of certain canals Court rejects both contention of should not be permitted to take advantage of a similar
by Belgium did not go down well parties. non-performance of that obligation by the other party.
with the Netherlands because the Nothing prevents either Belgium A tribunal, bound by international law, ought not to
construction could alter the water or the Netherlands from making shrink from applying a principle of such obvious
level of the Meuse River in such use as they may see fit of fairness.
violation of an earlier agreement. the canals covered by the Treaty, - In equity, the Netherlands cannot ask Belgium to
Belgium counterclaimed on the when the canals do not leave their discontinue the operation of the Neerhaeren Lock
grounds of the construction of a own territory. Each of the two when the Netherlands remain free to continue the
lock by Netherlands at an earlier States is at liberty in its own operation of the Bosscheveld Lock.
date. territory to modify such canals, to - Neither of these two requests should be granted
enlarge them, to trans-form them, where the circumstances are such that the judgment
to fill them in and even to increase would disturb that equality which is equity.
the volume of water in them, - If it preserves the equality between the Parties, the
provided that the diversion of judgment may better serve to facilitate their
water at the feeder mentioned in negotiations on the conclusion of a new treaty to
the Treaty and the volume of replace that of 1863.
water to be discharged therefrom MAXIMS:
is not affected. The same - A Court of equity refuses belief to a plaintiff whose
reasoning applies to the conduct in regard to the subject matter of litigation has
Netherlands' criticism of the been improper.
proposed supply by Belgium to a - Equality is equity.
section of another canal of water - He who seeks equity must do equity.
taken from the Meuse elsewhere
than at Maestricht.
RECIT QUESTION:
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Q: What do you call the situation in the case of Diversion? It is, however, an expression of non-binding norms,
A: In pari delicto. principles, and practices that influence state behavior.
OTHER SOURCES:
UN Resolution RECIT QUESTION:

- Considered as merely recommendatory. Q: Why is the RIRR not valid as to the absolute prohibition of
- But if supported by all the states, they are an advertisements and promotions of breastmilk substitutes?
expression of opinion juris communis. A: The RIRR was adopted from WHA resolution which is merely
recommendatory and legal non-binding.
Soft Law
- Agreement is not formally binding
- Binding but vague Ang Ladlad LGBT Party v. COMELEC
- Does not delegate any authority to a third party to FACTS: RULING:
monitor its implementation and enforce it. COMELEC refuses to accredit Court decided in favor of Ang
Ang Ladlad as a party list Ladlad.
organization under the Party List
Hard Law
System Act.
- Legal obligations that are binding on parties involved
DOCTRINE/S:
and which can be legally enforced before a court. - Decision of the court is in accord with international
obligations to protect and promote human rights.
Pharmaceutical v. Duque III - Although this Court stands willing to assume the
FACTS: RULING: responsibility of giving effect to the Philippines’
Petition posits that RIRR of E.O. Only provisions of the Milk Code international law obligations, the blanket invocation of
51 Milk Code is not valid as it can be validly implemented by international law is not the panacea for all social ills.
contains provisions that are not DOH through the subject RIRR. - We refer now to the petitioner’s invocation of the
constitutional and go beyond the Yogyakarta Principles (the Application of International
law it is supposed to implement. Human Rights Law In Relation to Sexual Orientation
DOCTRINE/S: and Gender Identity),51 which petitioner declares to
- It is propounded that WHA Resolutions may reflect binding principles of international law.
constitute "soft law" or non-binding norms, principles - At this time, we are not prepared to declare that
and practices that influence state behavior. these Yogyakarta Principles contain norms that
- "Soft law" does not fall into any of the categories of are obligatory on the Philippines. There are
international law set forth in Article 38, Chapter III of declarations and obligations outlined in said
the 1946 Statute of the International Court of Justice. Principles which are not reflective of the current
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state of international law, and do not find basis in affect their provinces and and will
any of the sources of international law amend or revise the constitution.
enumerated under Article 38(1) of the Statute of
the International Court of Justice.
- Using even the most liberal of lenses, these DOCTRINE/S:
Yogyakarta Principles, consisting of a declaration - Public statements of a state representative may be
formulated by various international law professors, construed as a unilateral declaration only when the
are – at best – de lege ferenda – and do not following conditions are present:
constitute binding obligations on the Philippines. 1. The statements were clearly addressed to the
- Indeed, so much of contemporary international law is international community,
characterized by the "soft law" nomenclature, i.e., 2. The state intended to be bound to that community
international law is full of principles that promote by its statements,
international cooperation, harmony, and respect for 3. That not to give legal effect to those statements
human rights, most of which amount to no more than would be detrimental to the security of
well-meaning desires, without the support of either international intercourse.
State practice or opinio juris. - Assessing the MOA-AD in light of the above criteria,
it would not have amounted to a unilateral declaration
RECIT QUESTION: on the part of the Philippine State to the international
community. The Philippine panel did not draft the
Q: What is de lege ferenda?
same with the clear intention of being bound thereby
A: "with a view to the future law" or future law used in a sense what
to the international community as a whole or to any
the law should be. State, but only to the MILF. While there were States
Q: Sino may gawa ng Yogyakarta Principles? and international organizations involved, one way or
A: Professors. another, in the negotiation and projected signing of
the MOA-AD, they participated merely as witnesses
UNILATERAL ACTIONS or, in the case of Malaysia, as facilitator. As held in
the Lomé Accord case, the mere fact that in addition
A unilateral act of State may be defined as an expression of will to the parties to the conflict, the peace settlement is
emanating from one State or States which produces legal effects in signed by representatives of states and international
conformity with international law organizations does not mean that the agreement is
internationalized so as to create obligations in
international law.
Province of North Cotabato v. GRP Peace Panel
FACTS (SHORT LANG RULING:
PARANG CLUE LANG SO I MOA-AD is not a unilateral act.
CAN REMEM: Nuclear Test Case
Petitioners raised the issue
regarding the MOA-AD which will
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FACTS: RULING: Applicant, its intention effectively to terminate
Australia challenged before the The ICJ held, amounted to a legal these tests. It was bound to assume that other
ICJ the legality of France's undertaking addressed to the States might take note of these statements and
nuclear tests in the South Pacific. international community, which rely on their being effective. The validity of these
France refused to appear in the required no acceptance from statements and their legal consequences must be
case, but public statements from other States for it to become considered within the general framework of the
its President, and similar effective. security of international intercourse, and the
statements from other French Unilateral acts/declarations are confidence and trust which are so essential in the
officials including its Minister of binding legal obligations. relations among States. It is from the actual
Defence, that its 1974 series of substance of these statements, and from the
atmospheric tests would be its circumstances attending their making, that the
last, persuaded the ICJ to dismiss legal implications of the unilateral act must be
the case. deduced. The objects of these statements are
DOCTRINE/S: clear and they were addressed to the international
- It is well recognized that declarations made by way of community as a whole, and the Court holds that
unilateral acts, concerning legal or factual situations, they constitute an undertaking possessing legal
may have the effect of creating legal obligations. effect.
Declarations of this kind may be, and often are, very
specific. When it is the intention of the State making
the declaration that it should become bound Burkina Faso v. Mali
according to its terms, that intention confers on the FACTS: RULING:
declaration the character of a legal undertaking, the The public declaration subject of The ICJ held that the statement of
State being thenceforth legally required to follow a that case was a statement made Mali's President was not a
course of conduct consistent with the declaration. An by the President of Mali, in an unilateral act with legal
undertaking of this kind, if given publicly, and with an interview by a foreign press implications. It clarified that its
intent to be bound, even though not made within the agency, that Mali would abide by ruling in the Nuclear Tests case
context of international negotiations, is binding. In the decision to be issued by a rested on the peculiar
these circumstances, nothing in the nature of a quid commission of the Organization circumstances surrounding the
pro quo nor any subsequent acceptance of the of African Unity on a frontier French declaration subject.
declaration, nor even any reply or reaction from other dispute then pending between
States, is required for the declaration to take effect, Mali and Burkina Faso.
since such a requirement would be inconsistent with DOCTRINE/S:
the strictly unilateral nature of the juridical act by - Here, there was nothing to hinder the Parties from
which the pronouncement by the State was made. manifesting an intention to accept the binding
- In announcing that the 1974 series of atmospheric character of the conclusions of the Organization
tests would be the last, the French Government of African Unity Mediation Commission by the
conveyed to the world at large, including the normal method: a formal agreement on the basis
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of reciprocity. Since no agreement of this kind was
concluded between the Parties, the Chamber finds Article 2 of Vienna Convention
that there are no grounds to interpret the declaration For the purposes of the present Convention:
made by Mali's head of State on 11 April 1975 as a a) “treaty” means an international agreement concluded between
unilateral act with legal implications in regard to the States in written form and governed by international law, whether
present case. embodied in a single instrument or in two or more related instruments
and whatever its particular designation;
RECIT QUESTION: b) “ratification”, “acceptance”, “approval” and “accession” mean in
Q: What is the difference between Nuclear Tests Case and Burkina each case the international act so named whereby a State establishes
Faso v. Mali? Bakit kay Nuclear unilateral? Bakit kay Burkina hindi? on the international plane its consent to be bound by a treaty;
A: Kay Nuclear, the Court took the view that since the applicant States c) “full powers” means a document emanating from the competent
were not the only ones concerned at the possible continuance of authority of a State designating a person or persons to represent the
atmospheric testing by the French Government, that Government's State for negotiating, adopting or authenticating the text of a treaty, for
unilateral declarations had ‘conveyed to the world at large, including expressing the consent of the State to be bound by a treaty, or for
the Applicant, its intention effectively to terminate these tests‘. In the accomplishing any other act with respect to a treaty;
particular circumstances of those cases, the French Government d) “reservation” means a unilateral statement, however phrased or
could not express an intention to be bound otherwise than by unilateral named, made by a State, when signing, ratifying, accepting, approving
declarations. It is difficult to see how it could have accepted the terms or acceding to a treaty, whereby it purports to exclude or to modify the
of a negotiated solution with each of the applicants without thereby legal effect of certain provisions of the treaty in their application to that
jeopardizing its contention that its conduct was lawful. State;
Kay Burkina Faso, Here, there was nothing to hinder the Parties from
manifesting an intention to accept the binding character of the Article 11
conclusions of the Organization of African Unity Mediation Means of Expressing Consent to be bound by a treaty
Commission by the normal method: a formal agreement on the basis
of reciprocity. Since no agreement of this kind was concluded between The consent of a State to be bound by a treaty may be expressed by
the Parties, the Chamber finds that there are no grounds to interpret signature, exchange of instruments constituting a treaty, ratification,
the declaration made by Mali's head of State on 11 April 1975 as a acceptance, approval or accession, or by any other means if so
unilateral act with legal implications in regard to the present case. agreed.
Q: Ano yung hindrance?
A: ‘Yung mapapahiya daw ang French Government. Kasi parang Article 26
inaamin nya yung mali nya.** “Pacta sunt servanda”
** NOT SURE
Every treaty in force is binding upon the parties to it and must be
III. performed by them in good
Law of Treaties
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faith. DOCTRINE/S:
- International agreements do not take a single form
under the Vienna Convention on the Law of Treaties,
Qatar v. Bahrain and the Court has enforced this rule in the past. In this
FACTS: RULING: case, the Minutes not only contain the record of the
A dispute concerning sovereignty Yes. An international agreement meetings between the parties, it also contained the
over certain islands and shoals, creating rights and obligations reaffirmation of obligations previously agreed to and
including the delimitation of a can be constituted by the agreement to allow the King of Saudi Arabia to try to
maritime boundary were issues signatories to the minutes of find a solution to the dispute during a six-month
upon which Qatar and Bahrain meetings and letters exchanged. period, and indicated the possibility of the
sought to resolve for 20 years. Though Bahrain argued that the involvement of the I.C.J. The Minutes stipulated
During this period of time, letters Minutes were only a record of commitments to which the parties agreed, thereby
were exchanged and negotiation and could not serve creating rights and obligations in international law.
acknowledged by both parties as a basis for the I.C.J.’s
heads of state. A Tripartite jurisdiction, both parties agreed Grounds for Invalidity of Treaties
Committee “for the purpose of that the letters constituted an
approaching the International international agreement with INVALIDITY OF TREATIES
Court of Justice…..” was formed binding force. Article 46
by representatives of Qatar, This is the basis therefore of the Provisions of internal law regarding competence to conclude treaties
Bahrain and Saudi Arabia. existence of international
Though the committee met agreement. 1. A State may not invoke the fact that its consent to be bound by a
several times, it failed to produce treaty has been
an agreement on the specific
expressed in violation of a provision of its internal law regarding
terms for submitting the dispute to
competence to conclude
the Court. Eventually, the
meetings culminated in “Minutes”, treaties as invalidating its consent unless that violation was manifest
which reaffirmed the process and and concerned a rule
stipulated that the parties “may” of its internal law of fundamental importance.
submit the dispute to the I.C.J. 2. A violation is manifest if it would be objectively evident to any State
after giving the Saudi King six conducting itself in
months to resolve the dispute. the matter in accordance with normal practice and in good faith.
The Court’s jurisdiction was
disputed by Bahrain when Qatar Article 47
filed a claim in the I.C.J. Specific restrictions on authority to express the consent of a State
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If the authority of a representative to express the consent of a State to indirectly by another negotiating State, the State may invoke such
be bound by a particular treaty has been made subject to a specific corruption as invalidating its consent to be bound by the treaty.
restriction, his omission to observe that restriction may not be invoked
as invalidating the consent expressed by him unless the restriction Article 51
was notified to the other negotiating States prior to his expressing such Coercion of a representative of a State
consent.
The expression of a State’s consent to be bound by a treaty which has
Article 48 been procured by the coercion of its representative through acts or
Error threats directed against him shall be without any legal effect.
1. A State may invoke an error in a treaty as invalidating its consent to Article 52

be bound by the treaty if the error relates to a fact or situation which Coercion of a State by the threat or use of force
was assumed by that State to exist at the time when the treaty was
concluded and formed an essential basis of its consent to be bound A treaty is void if its conclusion has been procured by the threat or use
by the treaty. of force in violation of the principles of international law embodied in
2. Paragraph 1 shall not apply if the State in question contributed by the Charter of the United Nations.
its own conduct to the error or if the circumstances were such as to
put that State on notice of a possible error. Article 53
3. An error relating only to the wording of the text of a treaty does not Treaties conflicting with a peremptory norm of general international
affect its validity; article 79 then applies. law (“jus cogens”)
A treaty is void if, at the time of its conclusion, it conflicts with a

Article 49 peremptory norm of general international law. For the purposes of the
Fraud present Convention, a peremptory norm of general international law is
a norm accepted and recognized by the international community of
If a State has been induced to conclude a treaty by the fraudulent States as a whole as a norm from which no derogation is permitted
conduct of another negotiating State, the State may invoke the fraud and which can be modified only by a subsequent norm of general
as invalidating its consent to be bound by the treaty. international law having the same character.
Article 50 AMENDMENT v. MODIFICATION

Corruption of a representative of a State
Amendment is a formal revision done with the participation at least in
If the expression of a State’s consent to be bound by a treaty has been its initial stage, by all parties to the treaty.
procured through the corruption of its representative directly or
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Modification involves only some parties. 2. A party shall give not less than twelve months’ notice of its intention
to denounce or withdraw from a treaty under paragraph 1.
According to article 39, treat may be amended by agreement of parties.
Article 57
Termination of a Treaty Suspension of the operation of a treaty under its provisions or by
consent of the parties
Article 54
Termination of or withdrawal from a treaty under its provisions The operation of a treaty in regard to all the parties or to a particular
or by consent of the parties party may be suspended:
a) in conformity with the provisions of the treaty; or
The termination of a treaty or the withdrawal of a party may take place: b) at any time by consent of all the parties after consultation with the
a) in conformity with the provisions of the treaty; or other contracting States.
b) at any time by consent of all the parties after consultation with the
other contracting States. Article 58
Suspension of the operation of a multilateral treaty by agreement
Article 55 between certain of the parties only
Reduction of the parties to a multilateral treaty below the number
necessary for its entry into force 1. Two or more parties to a multilateral treaty may conclude an
agreement to suspend the operation of provisions of the treaty,
Unless the treaty otherwise provides, a multilateral treaty does not temporarily and as between themselves alone, if:
terminate by reason only of the fact that the number of the parties falls a. the possibility of such a suspension is provided for by the treaty; or
below the number necessary for its entry into force. b. the suspension in question is not prohibited by the treaty and:
i. does not affect the enjoyment by the other parties of their rights
Article 56 under the treaty or the performance of their obligations;
Denunciation of or withdrawal from a treaty containing no provision ii. is not incompatible with the object and purpose of the treaty.
regarding termination, denunciation or withdrawal 2. Unless in a case falling under paragraph 1 (a) the treaty otherwise
provides, the parties in question shall notify the other parties of their
1. A treaty which contains no provision regarding its termination and intention to conclude the agreement and of those provisions of the
which does not provide for denunciation or withdrawal is not subject treaty the operation of which they intend to suspend.
to denunciation or withdrawal unless:
a. it is established that the parties intended to admit the possibility of Article 59
denunciation or withdrawal; or Termination or suspension of the operation of a treaty implied by
b. a right of denunciation or withdrawal may be implied by the nature conclusion of a later treaty
of the treaty.
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1. A treaty shall be considered as terminated if all the parties to it 3. A material breach of a treaty, for the purposes of this article,
conclude a later treaty relating to the same subject matter and: consists in:
a. it appears from the later treaty or is otherwise established that the a. a repudiation of the treaty not sanctioned by the present Convention;
parties intended that the matter should be governed by that treaty; or or
b. the provisions of the later treaty are so far incompatible with those b. the violation of a provision essential to the accomplishment of the
of the earlier one that the two treaties are not capable of being applied object or purpose of the treaty.
at the same time. 4. The foregoing paragraphs are without prejudice to any provision in
2. The earlier treaty shall be considered as only suspended in the treaty applicable in the event of a breach.
operation if it appears from the later treaty or is otherwise established 5. Paragraphs 1 to 3 do not apply to provisions relating to the
that such was the intention of the parties. protection of the human person contained in treaties of a humanitarian
character, in particular to provisions prohibiting any form of reprisals
Article 60 against persons protected by such treaties.
Termination or suspension of the operation of a treaty as a
consequence of its breach Article 61
Supervening impossibility of performance
1. A material breach of a bilateral treaty by one of the parties entitles
the other to invoke the breach as a ground for terminating the treaty 1. A party may invoke the impossibility of performing a treaty as a
or suspending its operation in whole or in part. ground for terminating or withdrawing from it if the impossibility results
2. A material breach of a multilateral treaty by one of the parties from the permanent disappearance or destruction of an object
entitles: indispensable for the execution of the treaty. If the impossibility is
a. the other parties by unanimous agreement to suspend the operation temporary, it may be invoked only as a ground for suspending the
of the treaty in whole or in part or to terminate it either: operation of the treaty.
i. in the relations between themselves and the defaulting State; or 2. Impossibility of performance may not be invoked by a party as a
ii. as between all the parties; ground for terminating, withdrawing from or suspending the operation
b. a party specially affected by the breach to invoke it as a ground for of a treaty if the impossibility is the result of a
suspending the operation of the treaty in whole or in part in the breach by that party either of an obligation under the treaty or of any
relations between itself and the defaulting State; other international obligation owed to any other party to the treaty.
c. any party other than the defaulting State to invoke the breach as a
ground for suspending the operation of the treaty in whole or in part Article 62
with respect to itself if the treaty is of such a character that a material Rebus Sic Stantibus ("things thus standing")
breach of its provisions by one party radically changes the position of - is the legal doctrine allowing for a contract or a treaty
every party with respect to the further performance of its obligations to become inapplicable because of a fundamental
under the treaty. change of circumstances.
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Fundamental change of circumstances If a new peremptory norm of general international law emerges, any
existing treaty which is in conflict with that norm becomes void and
1. A fundamental change of circumstances which has occurred with terminates.
regard to those existing at the time of the conclusion of a treaty, and
which was not foreseen by the parties, may not be invoked as a SUCCESSION TO TREATIES
ground for terminating or withdrawing from the treaty unless:
(a) the existence of those circumstances constituted an essential GENERAL RULE:
basis of the consent of the parties to be bound by the treaty; and Article 16
(b) the effect of the change is radically to transform the extent of Clean Slate Rule
obligations still to be performed under the treaty. Position in respect of the treaties of the predecessor State
2. A fundamental change of circumstances may not be invoked as a A newly independent State is not bound to maintain in force, or to
ground for terminating or withdrawing from a treaty: become a party to, any treaty by reason only of the fact that at the date
(a) if the treaty establishes a boundary; or of the succession of States the treaty was in force in respect of the
(b) if the fundamental change is the result of a breach by the party territory to which the succession of States relates.
invoking it either of an obligation under the treaty or of any other
international obligation owed to any other party to the treaty. EXCEPTION:
3. If, under the foregoing paragraphs, a party may invoke a Uti possidetis (as you possess)
fundamental change of circumstances as a ground for terminating or - was established to ensure the stability of newly
withdrawing from a treaty it may also invoke the change as a ground independent states whose colonial boundaries were
for suspending the operation of the treaty. often drawn arbitrarily.
Article 63 Article 11
Severance of diplomatic or consular relations Boundary regimes
A succession of States does not as such affect:
The severance of diplomatic or consular relations between parties to a. a boundary established by a treaty; or
a treaty does not affect the legal relations established between them b. obligations and rights established by a treaty and
by the treaty except insofar as the existence of diplomatic or consular relating to the regime of a boundary
relations is indispensable for the application of the treaty.
Article 64
Emergence of a new peremptory norm of general international law Tanada v. Angara
(“jus cogens”) FACTS: RULING:
Petitioners contest the validity of The Senate did not commit grave
WTO agreement entered into by abuse of discretion when they
the Philippines. concurred with the WTO.
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DOCTRINE/S: 1. limitations imposed by the very nature of
- By the doctrine of incorporation, the country is membership in the family of nations and
bound by generally accepted principles of 2. limitations imposed by treaty stipulations.
international law, which are considered to be
automatically part of our own laws.
- One of the oldest and most fundamental rules in RECIT QUESTION:
international law is pacta sunt servanda — Q: Bakit binding yung minutes sa Burkina case? Bakit yung final act
international agreements must be performed in good Tanada hindi?
faith. "A treaty engagement is not a mere moral A: Final act is rather a summary of the proceedings of a protracted
obligation but creates a legally binding obligation on conference which may have taken place over several years. It is not
the parties . . . A state which has contracted valid
the treaty itself but the proceedings.
international obligations is bound to make in its
legislations such modifications as may be necessary
to ensure the fulfillment of the obligations
undertaken." Pimentel v. Executive Secretary
- By their inherent nature, treaties really limit or FACTS: RULING:
restrict the absoluteness of sovereignty. By their Petition for mandamus filed by DFA has no duty to transmit copy
voluntary act, nations may surrender some aspects of petitioner to compel the Office of of Rome Statute to the Senate.
their state power in exchange for greater benefits Executive Secretary and DFA to It should be emphasized that
granted by or derived from a convention or pact. After transmit the signed copy of Rome under our Constitution, the power
all, states, like individuals, live with coequals, and in Statute of ICC to the Senate for to ratify is vested in the President,
pursuit of mutually covenanted objectives and concurrence in accordance with subject to the concurrence of the
benefits, they also commonly agree to limit the Sec. 21 Article VII of 1987 Senate. The role of the Senate,
exercise of their otherwise absolute rights. Thus, Constitution. however, is limited only to giving
treaties have been used to record agreements or withholding its consent, or
between States concerning such widely diverse concurrence, to the ratification.20
matters as, for example, the lease of naval bases, the Hence, it is within the authority of
sale or cession of territory, the termination of war, the the President to refuse to submit
regulation of conduct of hostilities, the formation of a treaty to the Senate or, having
alliances, the regulation of commercial relations, the secured its consent for its
settling of claims, the laying down of rules governing ratification, refuse to ratify it.
conduct in peace and the establishment of DOCTRINE/S:
international organizations. - TREATY MAKING PROCESS
- The sovereignty of a state therefore cannot in fact and 1. Negotiation may be undertaken directly by the head of
in reality be considered absolute. Certain restrictions state but he now usually assigns this task to his authorized
enter into the picture: representatives. These representatives are provided with
credentials known as full powers, which they exhibit to the
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other negotiators at the start of the formal discussions. It state’s authorized representative in the diplomatic
is standard practice for one of the parties to submit a draft mission.
of the proposed treaty which, together with the counter- - Ratification, on the other hand, is the formal act by
proposals, becomes the basis of the subsequent which a state confirms and accepts the provisions of
negotiations. The negotiations may be brief or protracted, a treaty concluded by its representative. It is generally
depending on the issues involved, and may even held to be an executive act, undertaken by the head
"collapse" in case the parties are unable to come to an of the state or of the government
agreement on the points under consideration.
2. If and when the negotiators finally decide on the terms of
the treaty, the same is opened for signature. This step is Bayan Muna v. Romulo
primarily intended as a means of authenticating the FACTS: RULING:
instrument and for the purpose of symbolizing the good Petitioner seeks to nullify the Agreement is valid even without
faith of the parties; but, significantly, it does not indicate Non-surrender Agreement concurrence of senate.
the final consent of the state in cases where ratification of between PH and US.
the treaty is required. The document is ordinarily signed in
accordance with the alternat, that is, each of the several DOCTRINE/S:
negotiators is allowed to sign first on the copy which he - International agreements may be in the form of
will bring home to his own state. 1. treaties that require legislative concurrence after
3. Ratification, which is the next step, is the formal act by executive ratification; or
which a state confirms and accepts the provisions of a 2. executive agreements that are similar to treaties,
treaty concluded by its representatives. The purpose of except that they do not require legislative
ratification is to enable the contracting states to examine concurrence and are usually less formal and deal
the treaty more closely and to give them an opportunity to with a narrower range of subject matters than
refuse to be bound by it should they find it inimical to their treaties.
interests. It is for this reason that most treaties are made - Under international law, there is no difference
subject to the scrutiny and consent of a department of the between treaties and executive agreements in terms
government other than that which negotiated them. of their binding effects on the contracting states
4. The last step in the treaty-making process is the exchange concerned, as long as the negotiating functionaries
of the instruments of ratification, which usually also have remained within their powers. Neither, on the
signifies the effectivity of the treaty unless a different date domestic sphere, can one be held valid if it violates
has been agreed upon by the parties. Where ratification is the Constitution. Authorities are, however, agreed
dispensed with and no effectivity clause is embodied in the that one is distinct from another for accepted reasons
treaty, the instrument is deemed effective upon its apart from the concurrence-requirement aspect. As
signature. has been observed by US constitutional scholars, a
- The signature is primarily intended as a means of treaty has greater "dignity" than an executive
authenticating the instrument and as a symbol of the agreement, because its constitutional efficacy is
good faith of the parties. It is usually performed by the beyond doubt, a treaty having behind it the authority
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of the President, the Senate, and the people; a DOCTRINE/S:
ratified treaty, unlike an executive agreement, We have to distinguish between treaties and international agreements,
takes precedence over any prior statutory which require the Senate's concurrence, on one hand, and executive
enactment. agreements, which may be validly entered into without the Senate's
- The categorization of subject matters that may be concurrence. Executive Order No. 459, Series of 1997, notes the
covered by international agreements mentioned in following definitions, to wit:
Eastern Sea Trading is not cast in stone. There are
no hard and fast rules on the propriety of entering, on Sec. 2. Definition of Terms.
a given subject, into a treaty or an executive a. International agreement - shall refer to a contract or
agreement as an instrument of international relations. understanding, regardless of nomenclature, entered into between the
The primary consideration in the choice of the form of Philippines and another government in written form and governed by
agreement is the parties’ intent and desire to craft an international law, whether embodied in a single instrument or in two or
international agreement in the form they so wish to more related instruments.
further their respective interests. Verily, the matter of
form takes a back seat when it comes to effectiveness b. Treaties - international agreements entered into by the Philippines
and binding effect of the enforcement of a treaty or an which require legislative concurrence after executive ratification. This
executive agreement, as the parties in either term may include compacts like conventions, declarations, covenants
international agreement each labor under the pacta and acts.
sunt servanda principle.
- Therefore, even with the current lack of domestic c. Executive Agreements - similar to treaties except that they do not
legislation on the part of the US, it still has both the require legislative concurrence.
doctrine of incorporation and universal jurisdiction to
- International agreements involving political issues or changes of
try these crimes.
national policy and those involving international arrangements of a
permanent character usually take the form of treaties. But international
**SKIPPED BAYAN V. ZAMORA, NICOLAS AND SAGUISAG CASES! agreements embodying adjustments of detail carrying out well-
Wala ng EDCA anek? Pero di ako sure kung isasama pa to. Basta di established national policies and traditions and those involving
ko na lalagay dito. Finull text ko naman. arrangements of a more or less temporary nature usually take the
form of executive agreements.
IPAP v. Ochoa
FACTS: RULING: - In the Philippines, the DFA, by virtue of Section 9, Executive Order
Petitioner challenges the NO NEED FOR No. 459, is initially given the power to determine whether an
President’s accession to Madrid CONCURRENCE OF SENATE. agreement is to be treated as a treaty or as an executive agreement.
Protocol without concurrence of x x x The concurrence of said House of Congress is required by our
Senate. fundamental law in the making of "treaties" (Constitution of the
Philippines; Article VII, Section 10[7]), which are, however, distinct and
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different from "executive agreements," which may be validly entered The Resolution 2145 (XXI) resolutions and decisions of the
into without such concurrence. terminating the Mandate of South Security Council in enforcing
Africa was adopted by the U.N termination of this nature are
"Treaties are formal documents which require ratification with the and the Security Council adopted binding on the Member States,
approval of two thirds of the Senate. Executive agreements become Resolution 276 (1970) which regardless of how they voted on
binding through executive action without the need of a vote by the declared the continuous the measure when adopted.
Senate or by Congress. presence of South Africa in South Africa is therefore bound to
the right of the Executive to enter into binding agreements without the Namibia as illegal and called obey the dictates of the Mandate,
necessity of subsequent Congressional approval has been confirmed upon other Member States to act the resolution terminating it as to
by long usage. From the earliest days of our history we have entered accordingly. An advisory opinion South Africa, and the
into executive agreements covering such subjects as commercial was however demanded from the enforcement procedures of the
and consular relations, most-favored-nation rights, patent rights, International Court of Justice. Security Council.
trademark and copyright protection, postal and navigation DOCTRINE/S:
arrangements and the settlement of claims. The validity of these has - As Member States, the obligation to keep intact and
never been seriously questioned by our courts. preserve the rights of other States and the people in
them has been assumed. So when a Member State
RECIT QUESTION: does not toll this line, that State cannot be recognized
Q: Difference ng treaty, executive agreement and international as retaining the rights that it claims to derive from the
agreement. relationship.
- Once the Mandate has been adopted by the United
A: *** CANT REMEMBER THE ANSWER HUHUH
Nations, it becomes binding upon all Member States
and the violations or breaches of this Mandate result
Namibia Case (MATERIAL BREACH) in legal obligations on the part of the violator to rectify
FACTS: RULING: the violation, and upon the other Member States to
Under a claim of right to annex In this particular case, the recognize the conduct as a violation and to refuse to
the Namibian territory and under General Assembly discovered aid in such violation.
the claim that Namibia’s nationals that South Africa contravened the
desired South Africa’s rule, South Mandate because of its deliberate RECIT QUESTION:
Africa began the occupation of actions and persistent
Q: What is a mandate?
Namibia. South Africa was violations of occupying Namibia.
subject to a U.N. Mandate A: it refers to a mode of external territorial administration, in which
prohibiting Member States from Hence, it is within the power of the some or all administrative authority over a designated territory is
taking physical control of other Assembly to terminate the delegated to a given party, usually a sovereign state, to be exercised
territories because it was a Mandate with respect to a on behalf of an international alliance or institution.
Member State of the United violating Member State, which - binding obligation issued from an inter-governmental organization
Nations. was accomplished by resolution (e.g. the United Nations) to a country which is bound to follow the
2145 (XXI) in this case. The instructions of the organization
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Danube Dam Case

FACTS: RULING:
Hungary and Czechoslovakia Termination was premature.
signed a Treaty for the
construction of dams and other
Fisheries Jurisdiction projects along the Danube River
FACTS: RULING: that bordered both nations.
Iceland’s claim to a 12-mile Change of circumstances may Czechoslovakia began to work
fisheries limit was recognized by give rise to the termination of a on damming the river in its
the United Kingdom in 1961 in treaty. territory when Hungary stopped
return for Iceland’s agreement working on the project and
that any dispute concerning RES SIC STANTIBUS. negotiation could not resolve the
Icelandic fisheries jurisdiction - NOT SATISFIED matter which led Hungary to
beyond the 12-mile limit be IN THIS CASE. terminate the Treaty. Hungary
referred to the International Court based its action on the fact that
of Justice. An application was the damming of the river had
filed before the I.C.J. when been agreed to only on the
Iceland proposed to extend its ground of a joint operation and
exclusive fisheries jurisdiction sharing of benefits associated
from 12 to 50 miles around its with the project, to which
shores in 1972. By postulating Czechoslovakia had unlawfully
that changes in circumstances unilaterally assumed control of a
since the 12-mile limit was now shared resource.
generally recognized was the DOCTRINE/S:
ground upon which Iceland stood - Even if state necessity is found to exist, it is not a
to argue that the agreement was ground for termination of a treaty. It may only be
no longer valid. invoked to exonerate from its responsibility a State
DOCTRINE/S: which has failed to implement a treaty.
- There must be a radical transformation of the extent - It is only material breach of the treaty itself which
of the obligations still to be performed. entitles other party to rely on it as a ground for
- Change must have increased burden of the terminating the treaty/
obligations to be executed to the extent of rendering
the performance something essentially different from
the originally undertaken. IV.
INTERNATIONAL LAW AND MUNICIPAL LAW
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Dualist Theory adopted in its full extent by common law, and it is held
- International Law and Municipal Law are different to be part of the law of the land.
from each other.
- As to source: By virtue of Art. VII Sec. 21 and Art. II Sec. 2, the Constitution
o ML is product of local custom or legislation. manifests its adherence to the dualist theory and at the same
o IL is product or treaties and custom. time adopts the incorporation theory.
- As to relations they regulate:
o ML regulate relations between individual Municipal Law in International Law
persons under the state.
o IL regulates relations between States. Article 27 Vienna Convention on Law of Treaties
- As to their substance: Internal law and observance of treaties
o ML is the law of sovereign over individuals A party may not invoke the provisions of its internal law as justification
o IL is a law between sovereign states. for its failure to perform a treaty. This rule is without prejudice to article
- For dualists, When IL and ML conflict, ML prevails. 46.
Monistic Theory Article 13 of Declaration of Rights and Duties of States Adopted

- IL and ML belong to one system of law. by International Law Commission in 1949.
o Two monist theories
▪ ML subsumes and is superior to IL. Every State has the duty to carry out in good faith its obligations arising
▪ IL is superior to domestic law. from treaties and other sources of international law, and it may not
invoke provisions in its constitution or its laws as an excuse for failure
International Law in Municipal Law to perform this duty
International law unless it is made part of the domestic system has no - This follows a dualist tradition. Thus, a state which
role in the settlement of domestic conflicts. has violated a provision of international law cannot
justify itself by recourse to its domestic law.
Two theories how international law becomes part of domestic law: - A state which has entered into an international
1. Transformation agreement must modify its laws to make it conform to
- It must be expressly and specifically transformed into the agreement.
domestic law through the appropriate constitutional - Article 38 recognizes teachings of domestic law as
machinery such as an act of Congress or parliament. part of international law.
2. Incorporation
- The law of nations, wherever any question arises Where the court must decide a dispute which turns not upon
which is properly the object of its jurisdiction, is here international law but upon domestic, Once the court has arrived at the
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conclusion that it is necessary to apply the municipal law of particular o The rule followed is that as between an
country, it must seek to apply it as it would be applied in that country. earlier treaty and later law, the later one
prevails.
Conflict: Ichong v. Hernandez
FACTS: RULING:
International Rule Republic Act No. 1180 is entitled Another subordinate argument
- Depends on whether the case goes to a domestic "An Act to Regulate the Retail against the validity of the law is
court or to an international tribunal. Business." the supposed violation thereby of
- In international tribunal, a state may not plead its own the Charter of the United Nations
law as an excuse for failure to comply with and of the Declaration of the
Human Rights adopted by the
international law.
United Nations General
o EXCEPT: Article 46 Provisions of internal law
Assembly. We find no merit in the
regarding competence to conclude treaties Nations Charter imposes no strict
1. A State may not invoke the fact that its or legal obligations regarding the
consent to be bound by a treaty has been rights and freedom of their
expressed in violation of a provision of its subjects and the Declaration of
internal law regarding competence to Human Rights contains nothing
conclude treaties as invalidating its consent more than a mere
unless that violation was manifest and recommendation or a common
concerned a rule of its internal law of standard of achievement for all
fundamental importance. peoples and all nations. That
2. A violation is manifest if it would be such is the import of the United
objectively evident to any State Nations Charter aid of the
Declaration of Human Rights can
conducting itself in the matter in
be inferred the fact that members
accordance with normal practice and in of the United Nations
good faith. Organizations, such as Norway
and Denmark, prohibit foreigners
Municipal Rule from engaging in retail trade, and
- As between International Agreement and in most nations of the world laws
Constitution: against foreigners engaged in
o The treaty is INVALID AND INOPERATIVE. domestic trade are adopted.
▪ Treaty does not lose its character as The Treaty of Amity between the
international law. Republic of the Philippines and
- As to international agreement and legislation: the Republic of China of April 18,
1947 is also claimed to be
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violated by the law in question. All command, permitting them to
that the treaty guarantees is commit brutal atrocities and other
equality of treatment to the high crimes against
Chinese nationals "upon the noncombatant civilians and
same terms as the nationals of prisoners of the Imperial
any other country." But the Japanese Forces in violation of
nationals of China are not the laws and customs of war" —
discriminating against because comes before this Court seeking
nationals of all other countries, to establish the illegality of
except those of the United States, Executive Order No. 68 of the
who are granted special rights by President of the Philippines: to
the Constitution, are all prohibited enjoin and prohibit respondents
from engaging in the retail trade. Melville S. Hussey and Robert
Port from participating in the
DOCTRINE/S: prosecution of petitioner's case
- But even supposing that the law infringes upon the before the Military Commission
said treaty, the treaty is always subject to qualification and to permanently prohibit
or amendment by a subsequent law and the same respondents from proceeding
may never curtail or restrict the scope of the police with the case of petitioners.
power. DOCTRINE/S:
- It cannot be denied that the rules and regulation of the
Hague and Geneva conventions form, part of and are
Kuroda v. Jalandoni wholly based on the generally accepted principals of
FACTS: RULING: international law. In facts these rules and principles
Shigenori Kuroda, formerly a The Military Commission having were accepted by the two belligerent nation the
Lieutenant-General of the been convened by virtue of a valid United State and Japan who were signatories to the
Japanese Imperial Army and law with jurisdiction over the two Convention, Such rule and principles therefore
Commanding General of the crimes charged which fall under form part of the law of our nation even if the
Japanese Imperial Forces in The the provisions of Executive Order Philippines was not a signatory to the conventions
Philippines during a period No. 68, and having said petitioner embodying them for our Constitution has been
covering 19433 and 19444 who is in its custody, this Court will not deliberately general and extensive in its scope and is
now charged before a military interfere with the due process of not confined to the recognition of rule and principle of
Commission convened by the such Military commission. international law as continued inn treaties to which our
Chief of Staff of the Armed forces government may have been or shall be a signatory.
of the Philippines with having - Furthermore when the crimes charged against
unlawfully disregarded and failed petitioner were allegedly committed the Philippines
"to discharge his duties as such was under the sovereignty of United States and thus
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we were equally bound together with the United PCGG with the power "(a) to
States and with Japan to the right and obligation conduct investigation as may be
contained in the treaties between the belligerent necessary in order to accomplish
countries. These rights and obligation were not and carry out the purposes of this
erased by our assumption of full sovereignty. If at all order" and the power "(h) to
our emergency as a free state entitles us to enforce promulgate such rules and
the right on our own of trying and punishing those who regulations as may be necessary
committed crimes against crimes against our people. to carry out the purpose of this
In this connection it is well to remember what we have order."
said in the case of Laurel vs. Misa (76 Phil., 372):
. . . The change of our form government from Based on its mandate, the AFP
Commonwealth to Republic does not affect the Board investigated various
prosecution of those charged with the crime of reports of alleged unexplained
treason committed during then Commonwealth wealth of respondent Major
because it is an offense against the same General Ramas.
sovereign people. . . . DOCTRINE/S:
- By the same token war crimes committed against our - The revolutionary government did not repudiate the
people and our government while we were a Covenant or the Declaration during the interregnum.
Commonwealth are triable and punishable by our Whether the revolutionary government could have
present Republic. repudiated all its obligations under the Covenant or
the Declaration is another matter and is not the issue
Republic v. Sandiganbayan here. Suffice it to say that the Court considers the
FACTS: RULING: Declaration as part of customary international law,
Immediately upon her Bill of Rights under 1973 and that Filipinos as human beings are proper
assumption to office following the Constitution was inoperative subjects of the rules of international law laid down in
successful EDSA Revolution, during the interregnum. However, the Covenant. The fact is the revolutionary
then President Corazon C. protection accorded to individuals government did not repudiate the Covenant or the
Aquino issued Executive Order under Covenant and Declaration Declaration in the same way it repudiated the 1973
No. 1 ("EO No. 1") creating the remained in effect during the Constitution. As the de jure government, the
Presidential Commission on interregnum. revolutionary government could not escape
Good Government ("PCGG"). EO responsibility for the State’s good faith compliance
No. 1 primarily tasked the PCGG with its treaty obligations under international law.
to recover all ill-gotten wealth of - During the interregnum when no constitution or Bill of
former President Ferdinand E. Rights existed, directives and orders issued by
Marcos, his immediate family, government officers were valid so long as these
relatives, subordinates and close officers did not exceed the authority granted them by
associates. EO No. 1 vested the the revolutionary government. The directives and
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orders should not have also violated the Covenant or a. the established, widespread, and
the Declaration. In this case, the revolutionary consistent practice on the part of States;
government presumptively sanctioned the warrant and
since the revolutionary government did not repudiate b. a psychological element known as the
it. The warrant, issued by a judge upon proper opinionjuris sive necessitates (opinion as
application, specified the items to be searched and to law or necessity). Implicit in the latter
seized. The warrant is thus valid with respect to the element is a belief that the practice in
items specifically described in the warrant. question is rendered obligatory by the
existence of a rule of law requiring it.
Poe-Llamanzares v. COMELEC c.
FACTS: RULING: - "General principles of law recognized by civilized
ALAM MO NA TO. SC declared her qualified to run nations" are principles "established by a process of
More than 10 times ko na ata for presidency. reasoning" or judicial logic, based on principles which
nabasa to. KKLK. are "basic to legal systems generally," such as
DOCTRINE/S: "general principles of equity, i.e., the general
- Foundlings are likewise citizens under international principles of fairness and justice," and the "general
law. principle against discrimination" which is embodied in
- Under the 1987 Constitution, an international law can the "Universal Declaration of Human Rights, the
become part of the sphere of domestic law either by International Covenant on Economic, Social and
transformation or incorporation. Cultural Rights, the International Convention on the
1. The transformation method requires that an Elimination of All Forms of Racial Discrimination, the
international law be transformed into a domestic Convention Against Discrimination in Education, the
law through a constitutional mechanism such as Convention (No. 111) Concerning Discrimination in
local legislation. Respect of Employment and Occupation." These are
2. On the other hand, generally accepted principles the same core principles which underlie the Philippine
of international law, by virtue of the incorporation Constitution itself, as embodied in the due process
clause of the Constitution, form part of the laws of and equal protection clauses of the Bill of Rights.
the land even if they do not derive from treaty - Our approach in Razon and Mijares effectively takes
obligations. into account the fact that "generally accepted
- Generally accepted principles of international law principles of international law" are based not only on
include international custom as evidence of a general international custom, but also on "general principles
practice accepted as law, and general principles of of law recognized by civilized nations," as the phrase
law recognized by civilized nations. is understood in Article 38.1 paragraph (c) of the ICJ
- International customary rules are accepted as binding Statute. Justice, fairness, equity and the policy
as a result from the combination of two elements: against discrimination, which are fundamental
principles underlying the Bill of Rights and which are
"basic to legal systems generally,"136 support the
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notion that the right against enforced disappearances which is presumed to verbalize the parties' intentions.
and the recognition of foreign judgments, were The Convention likewise dictates what may be used
correctly considered as "generally accepted principles as aids to deduce the meaning of terms, which it
of international law" under the incorporation clause. refers to as the context of the treaty, as well as other
elements may be taken into account alongside the
Lim v. Executive Secretary aforesaid context.
FACTS: RULING: - From the perspective of public international law, a
This case involves a petition for treaty is favored over municipal law pursuant to the
certiorari and prohibition as well principle of pacta sunt servanda. Hence, "[e]very
as a petition-in-intervention, treaty in force is binding upon the parties to it and
praying that respondents be must be performed by them in good faith."14 Further,
restrained from proceeding with a party to a treaty is not allowed to "invoke the
the so-called "Balikatan 02-1" and provisions of its internal law as justification for its
that after due notice and hearing, failure to perform a treaty."
that judgment be rendered - In Ichong v. Hernandez, we ruled that the
issuing a permanent writ of provisions of a treaty are always subject to
injunction and/or prohibition qualification or amendment by a subsequent law,
against the deployment of U.S. or that it is subject to the police power of the State.
troops in Basilan and Mindanao - In Gonzales v. Hechanova,
for being illegal and in violation of As regards the question whether an
the Constitution. international agreement may be
DOCTRINE/S: invalidated by our courts, suffice it to say
- Not much help can be had therefrom, unfortunately, that the Constitution of the Philippines
since the terminology employed is itself the source of has clearly settled it in the affirmative, by
the problem. The VFA permits United States providing, in Section 2 of Article VIII
personnel to engage, on an impermanent basis, in thereof, that the Supreme Court may not
"activities," the exact meaning of which was left be deprived "of its jurisdiction to review,
undefined. The expression is ambiguous, permitting a revise, reverse, modify, or affirm on
wide scope of undertakings subject only to the appeal, certiorari, or writ of error as the
approval of the Philippine government.8 The sole law or the rules of court may provide, final
encumbrance placed on its definition is couched in the judgments and decrees of inferior courts
negative, in that United States personnel must in
"abstain from any activity inconsistent with the spirit of (I) All cases in which the
this agreement, and in particular, from any political constitutionality or validity of any treaty,
activity. law, ordinance, or executive order or
- It is clear from the foregoing that the cardinal rule of regulation is in question."
interpretation must involve an examination of the text,
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- In other words, our Constitution authorizes the Hence, the definition of the concept “state” which has found currency
nullification of a treaty, not only when it conflicts among Philippine writers is this: “It is a community of persons more or
with the fundamental law, but, also, when it runs less numerous, permanently occupying a definite portion of territory,
counter to an act of Congress. independent of external control, and possessing an organized
government to which the great body of inhabitants render habitual
obedience.
1. People – Means a community of persons sufficient in number

V. and capable of maintaining the permanent existence of the
SUBJECTS OF INTERNATIONAL LAW community and held together by a common bond of law. No
legal consequence if they possess diverse racial, cultural, or
Subjects of International Law economic interests nor is minimum population required.
Subjects of international law are entities endowed with rights and 2. Territory – An entity may satisfy the territorial requirement for
obligations in the international order possessing the capacity to take statehood even if its boundaries have not been finally settled,
certain kinds of action on the international plane. if one or more of its boundaries are disputed or if some of its
territory is claimed by another state.
- They are those who have international personalities. a. An entity does not necessarily cease to be a state
- They are actors in the international legal system and even if all its territory has been occupied by a foreign
are distinct from objects of international law. power or if it has otherwise lost control of its territory
temporarily.
Objects of international law are those who indirectly have rights under
or are beneficiaries of international law through subjects of 3. Government – Institution or aggregate of institutions by which
international law. an independent society makes and carries out those rules of
action which are necessary to enable men to live in a social
Montevideo Convention state or which are imposed upon the people forming that
Article 1 society by those who possess the power or authority of
The state as a person of international law should possess the following prescribing them.
qualifications: a. International law does not specify what form a
a) a permanent population; government should have.
b) a defined territory; b. National government has legal personality and is
c) government; and internationally responsible for the actions of other
d) capacity to enter into relations with the other states. agencies and instrumentalities of the state.
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c. Temporary absence of government, for instance Recognition of States
during an occupation by a foreign power, does not Recognition means acknowledging the capacity of an entity to
terminate the existence of a state. exercise rights belonging to statehood.
4. Sovereignty – Independence from outside control. 1. Declaratory Theory – Recognition is merely “declaratory” of
a. Montevideo Convention express this in positive terms the existence of the state and that its being a state depends
as including “capacity to enter into relations with other upon its possession of the required elements and not upon
States.” recognition. Recognizing state merely accepts an already
i. Dependent on recognition. existing situation.
5. Self-determination – Related to but not identical with the a. Weight of authority favors this.
broader concept of the right of self-determination.
a. ICCPR and ICESCR: “All people have the right of 2. Constitutive Theory – Recognition “constitutes” a state, that
self-determination. By virtue of that right they freely is, it is what makes a state a state and confers legal
determine their political status and freely pursue their personality on the entity. No obligation to enter into bilateral
economic, social and cultural development.” relations. But then states may decide to recognize an entity
b. Levels of self-determination (two categories): as a state even if it does not have all the elements of a state
i. Establishment of new states – claim by a found in the Montevideo Convention.
group within an established state to break
away and form a new entity. Recognition of Government
ii. Does not involve establishment of new state It is act of acknowledging the capacity of an entity to exercise powers
– claims to be free from external coercion or of government of a state.
overthrow effective rules and establish a new
government, assertion of the right of
revolution or claim of people within an entity Consequences of Recognition and Non-recognition.
to be given autonomy. Absence of formal recognition bars an entity from all these benefits or
iii. Various means to give effect to self- at least access to them may be suspended.
determination: resolution of support for
demands, sanctions for offenses against self- Recognition of a government like recognition of a state involves a
determination, helping in ascertaining will of highly political judgment.
people, etc. (p. 74)
iv. But, international law has not recognized a Does admission of a government to the UN mean recognition by all
right of secession from a legitimately existing members? NO. Recognition is only to the extent of the activities of
state. organization.
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Recognition of a state is not the same as recognition of government, power and administration and
the two often go together in the case of new states. However, within legislation over the territory as an
established states, governments come and go with no effect on integral portion of Union. It sought
recognition of the state. recognition of UN to the
integration of territory in UN.
When is recognition terminated? Recognition of a regime is terminated UN refused and placed Union to
territory under trusteeship. Union
when another regime is recognized. For as long as a state continues
refused.
to meet the qualifications of statehood, its status as a state cannot be
DOCTRINE/S:
“derecognize.”
- League was not a mandator.
- Degree of supervision by UN should not exceed which
Incomplete Subjects was applied under the Mandate system.
1. Protectorates - largely of historical importance. They are
dependent states which have no control over their internal Right of Passage over Indian Territory
affairs but whose external affairs are controlled by another FACTS: RULING:
state. They were sometimes referred to as autonomous states, Portugal sate its territory in the Portugal has right of passage as
vassal states, semi-sovereign or dependent states. Indian peninsula included 2 to civilians.
2. Federal States – union of autonomous entities. One enclaves surrounded by India.
arrangement placing full authority in a central organ will have Question arose of right of
personality in international law; but the extent of international passage in favor of Portugal
personality of the component entities can be a problem. through Indian territory and of
3. Mandated and Trust Territories – territories placed by the correlative obligation binding
League of Nations under one or other of the victorious allies upon India.
of World War I. Mandated system was replaced by trusteeship DOCTRINE/S:
- Practice established between parties had required
system after World War II under the Trusteeship Council.
for the passage of armed forces, police and arms and
ammunition the permission of the british/Indian
Status of South West Africa authority rendered it unnecessary for the court to
FACTS: RULING: determine whether or not in the absence of the
South West Africa was once of If the Mandate is still in existence. practice that actually prevailed, general international
German overseas possession in YES. SWF is still considered a customs or general principles of law recognized by
respect of which Germany by Art. territory held under Mandate. civil nations.
119 of Treaty of Versailles all her
rights and titles. Territory was Province of North Cotabato v. GRP Peace Panel
placed under a Mandate
conferred upon the Union of S.
Africa which was to have full
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FACTS (SHORT LANG RULING: independence. Examples of states that have passed
PARANG CLUE LANG SO I The MOA-AD is inconsistent with through the status of associated states as a
CAN REMEM: the Constitution and laws as transitional phase are Antigua, St. Kitts-Nevis-
Petitioners raised the issue presently worded. Anguilla, Dominica, St. Lucia, St. Vincent and
regarding the MOA-AD which will Grenada. All have since become independent states.
affect their provinces and and will - Back to the MOA-AD, it contains many provisions
amend or revise the constitution. which are consistent with the international legal
DOCTRINE/S: concept of association, specifically the following: the
- The nature of the “associative” relationship may have BJE’s capacity to enter into economic and trade
been intended to be defined more precisely in the still relations with foreign countries, the commitment of
to be forged Comprehensive Compact. Nonetheless, the Central Government to ensure the BJE’s
given that there is a concept of “association” in participation in meetings and events in the ASEAN
international law, and the MOA-AD – by its inclusion and the specialized UN agencies, and the continuing
of international law instruments in its TOR– placed responsibility of the Central Government over
itself in an international legal context, that concept of external defense. Moreover, the BJE’s right to
association may be brought to bear in understanding participate in Philippine official missions bearing on
the use of the term “associative” in the MOA-AD. negotiation of border agreements, environmental
- [a]n association is formed when two states of protection, and sharing of revenues pertaining to the
unequal power voluntarily establish durable links. In bodies of water adjacent to or between the islands
the basic model, one state, the associate, forming part of the ancestral domain, resembles the
delegates certain responsibilities to the other, the right of the governments of FSM and the Marshall
principal, while maintaining its international Islands to be consulted by the U.S. government on
status as a state. Free associations represent a any foreign affairs matter affecting them.
middle ground between integration and - These provisions of the MOA indicate, among other
independence. things, that the Parties aimed to vest in the BJE the
- The Compact of Free Association is a treaty which is status of an associated state or, at any rate, a
subordinate to the associated nation’s national status closely approximating it.
constitution, and each party may terminate the - The concept of association is not recognized
association consistent with the right of independence. under the present Constitution. No province, city,
It has been said that, with the admission of the U.S.- or municipality, not even the ARMM, is recognized
associated states to the UN in 1990, the UN under our laws as having an “associative” relationship
recognized that the American model of free with the national government. Indeed, the concept
association is actually based on an underlying status implies powers that go beyond anything ever granted
of independence. by the Constitution to any local or regional
- In international practice, the “associated state” government. It also implies the recognition of
arrangement has usually been used as a transitional the associated entity as a state.
device of former colonies on their way to full
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- The BJE is a far more powerful entity than the right to unilateral secession) arises in only the
autonomous region recognized in the most extreme of cases and, even then, under
Constitution carefully defined circumstances. x x x
- It is not merely an expanded version of the ARMM,
the status of its relationship with the national External self-determination can be defined as in
government being fundamentally different from that of the following statement from the Declaration on
the ARMM. Indeed, BJE is a state in all but name Friendly Relations, supra, as
as it meets the criteria of a state laid down in the
Montevideo Convention,[154][154] namely, The establishment of a sovereign and
a permanent population, a defined territory, independent State, the free association or
a government, and a capacity to enter into relations integration with an independent State or the
with other states. emergence into any other political status freely
- Even assuming arguendo that the MOA-AD would not determined by a people constitute modes of
necessarily sever any portion of Philippine implementing the right of self-determination by that
territory, the spirit animating it – which has betrayed people. (Emphasis added)
itself by its use of the concept of association – runs
counter to the national sovereignty and territorial 127. The international law principle of self-
integrity of the Republic. determination has evolved within a framework of
- The people’s right to self-determination should not, respect for the territorial integrity of existing
however, be understood as extending to a unilateral states. The various international documents that
right of secession. A distinction should be made support the existence of a people’s right to self-
between the right of internal and external self- determination also contain parallel statements
determination supportive of the conclusion that the exercise of such
REFERENCE RE SECESSION OF QUEBEC is again a right must be sufficiently limited to prevent threats
to an existing state’s territorial integrity or the stability
instructive: of relations between sovereign states.
“(ii) Scope of the Right to Self-determination
126. The recognized sources of international VI. Other Subjects of International Law
law establish that the right to self-determination of
a people is normally fulfilled through internal self- I. International Organizations
determination – a people’s pursuit of its political, International organization is an organization that is set up by treay
economic, social and cultural development within among 2 or more states. It is different from NGOs which are set up
the framework of an existing state. A right by private persons.
to external self-determination (which in this case
potentially takes the form of the assertion of a
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Constituent document of international organizations is a treaty. Only - Large number of subsidiary organs among them the
states are members of international organization. UNCHR and Commission on the Status of Women
Article 103 4. Trusteeship Council

In the event of a conflict between the obligations of the Members of - Supervises non-self-governing territories.
the United Nations under the present Charter and their obligations - Jurisdiction has already become very limited.
under any other international agreement, their obligations under the
present Charter shall prevail. 5. Secretariat
- Shall comprise a Secretary General and such staff as
Principal Organs: the Organization may require.
1. General Assembly - Secretary General is elected a five year term by the
- All members are represented. It has plenary powers GA upon the recommendation of the Security Council,
in the sense that it “may discuss any question or any subject to veto power.
matters within the scope of the. . . Charter.” o Chief administrator of the organization and
- Distinguishes important questions and other has the power to “bring to the attention of the
questions. Security Council any matter which in his
o Important questions are decided by 2/3 opinion may threaten the maintenance of
majority of the members voting and present. international peace and security.
o Other questions require only majority.
6. ICJ
2. Security Council - Principal judicial organ of UN.
- Has primary responsibility for the maintenance of
international peace and security. 7. Other Agencies
- Distinguishes between procedural matters and all a. UNESCO
other matters. b. ICAO
o Matters that are not procedural require nine c. WHO
affirmative votes. d. FAO
o Council practice is that a decision on whether e. World Bank
a matter is procedural or not also requires the f. IMF
concurrence of the permanent.
3. ECOSOC
- 54 members elected for 3 years.
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Regional Organizations: ASEAN while respondent is Chairman of
the Philippine National Red Cross
They are autonomous international organizations having an (PNRC) Board of Governors.
institutional affiliation with the UN. They are created by international
agreements for the purpose of dealing with regional problems in During respondent’s incumbency
general or with specific matters be they economic, military or political. as a member of the Senate of the
Philippines,1 he was elected
Chairman of the PNRC during the
Legality of the Use by a State of Nuclear Weapons in Armed 23 February 2006 meeting of the
Conflict.
PNRC Board of Governors.
FACTS: RULING: Petitioners allege that by
A request for an advisory opinion Yes. Threats or use of nuclear accepting the chairmanship of the
as to whether states are permitted weapons are permitted under PNRC Board of Governors,
to use nuclear weapons under international law. respondent has ceased to be a
international law was laid on the member of the Senate as
table of the International Court of provided in Section 13, Article VI
Justice by the U.N. General of the Constitution.
Assembly. DOCTRINE/S:
DOCTRINE/S: - closer look at the nature of the PNRC would show that
- International orgs don’t possess a general there is none like it not just in terms of structure, but
competence but are governed by principle of also in terms of history, public service and official
specialty. status accorded to it by the State and the international
- WHO cannot encroach outside of competence of UN community. There is merit in PNRC’s contention that
and specialized agencies. its structure is sui generis.
- It is not within the scope of activities of WHO. - The PNRC succeeded the chapter of the American
Red Cross which was in existence in the Philippines
Liban v. Gordon since 1917. It was created by an Act of Congress after
FACTS: RULING: the Republic of the Philippines became an
Petitioners Dante V. Liban, PNRC is sui generis in character. independent nation on July 6, 1946 and proclaimed
Reynaldo M. Bernardo, and on February 14, 1947 its adherence to the Convention
Salvador M. Viari (petitioners) of Geneva of July 29, 1929 for the Amelioration of the
filed with this Court a Petition to Condition of the Wounded and Sick of Armies in the
Declare Richard J. Gordon as Field (the "Geneva Red Cross Convention"). By that
Having Forfeited His Seat in the action the Philippines indicated its desire to
Senate. Petitioners are officers of participate with the nations of the world in mitigating
the Board of Directors of the the suffering caused by war and to establish in the
Quezon City Red Cross Chapter Philippines a voluntary organization for that purpose
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and like other volunteer organizations established in change in the personnel or structure of a National
other countries which have ratified the Geneva Society. National societies are therefore
Conventions, to promote the health and welfare of the organizations that are directly regulated by
people in peace and in war. international humanitarian law, in contrast to other
- PNRC act as auxiliaries to the public authorities of ordinary private entities, including NGOs.
their own countries in the humanitarian field and - The auxiliary status of [a] Red Cross Society means
provide a range of services including disaster relief that it is at one and the same time a private
and health and social programmes. institution and a public service organization
- The International Federation of Red Cross (IFRC) and because the very nature of its work implies
Red Crescent Societies (RCS) Position Paper,17 cooperation with the authorities, a link with the
submitted by the PNRC, is instructive with regard to State.
the elements of the specific nature of the National - So must this Court recognize too the country’s
Societies such as the PNRC, to wit: adherence to the Geneva Convention and respect
National Societies, such as the Philippine the unique status of the PNRC in consonance with
National Red Cross and its sister Red its treaty obligations. The Geneva Convention has
Cross and Red Crescent Societies, have the force and effect of law.21 Under the Constitution,
certain specificities deriving from the 1949 the Philippines adopts the generally accepted
Geneva Convention and the Statutes of principles of international law as part of the law of the
the International Red Cross and Red land.22 This constitutional provision must be
Crescent Movement (the Movement). reconciled and harmonized with Article XII, Section 16
They are also guided by the seven of the Constitution, instead of using the latter to
Fundamental Principles of the Red Cross negate the former.
and Red Crescent Movement: Humanity, - Although it is neither a subdivision, agency, or
Impartiality, Neutrality, Independence, instrumentality of the government, nor a government-
Voluntary Service, Unity and Universality. owned or -controlled corporation or a subsidiary
- A National Society partakes of a sui generis thereof, as succinctly explained in the Decision of July
character. It is a protected component of the Red 15, 2009, so much so that respondent, under the
Cross movement under Articles 24 and 26 of the First Decision, was correctly allowed to hold his position as
Geneva Convention, especially in times of armed Chairman thereof concurrently while he served as a
conflict. These provisions require that the staff of a Senator, such a conclusion does not ipso facto imply
National Society shall be respected and protected in that the PNRC is a "private corporation" within the
all circumstances. Such protection is not ordinarily contemplation of the provision of the Constitution, that
afforded by an international treaty to ordinary private must be organized under the Corporation Code.
entities or even non-governmental organisations - Although the PNRC is called to be independent under
(NGOs). This sui generis character is also its Fundamental Principles, it interprets such
emphasized by the Fourth Geneva Convention which independence as inclusive of its duty to be the
holds that an Occupying Power cannot require any government’s humanitarian partner. To be recognized
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have faith
in the International Committee, the PNRC must have or statutory law providing that a
an autonomous status, and carry out its humanitarian potential extraditee has a right to
mission in a neutral and impartial manner. bail, the right being limited solely
- It is the main characteristic of National Societies that to criminal proceedings.
they "are not inspired by the desire for financial gain
but by individual commitment and devotion to a In his comment on the petition,
humanitarian purpose freely chosen or accepted as private respondent maintained
part of the service that National Societies through its that the right to bail guaranteed
volunteers and/or members render to the Community. under the Bill of Rights extends to
- The PNRC, as a National Society of the International a prospective extraditee; and that
Red Cross and Red Crescent Movement, can neither extradition is a harsh process
"be classified as an instrumentality of the State, so as resulting in a prolonged
not to lose its character of neutrality" as well as its deprivation of one’s liberty.
independence, nor strictly as a private corporation DOCTRINE/S:
since it is regulated by international humanitarian law - However, this Court cannot ignore the following
and is treated as an auxiliary of the State trends in international law:
- (1) the growing importance of the
individual person in public international
law who, in the 20th century, has
II. Insurgents gradually attained global recognition;
(2) the higher value now being given to
III. National Liberation Movements human rights in the international sphere;
(3) the corresponding duty of countries
to observe these universal human rights
in fulfilling their treaty obligations; and
IV. Individuals (4) the duty of this Court to balance the
rights of the individual under our
Government of HK v. Olalia fundamental law, on one hand, and the
FACTS: RULING: law on extradition, on the other.
Munoz is charged of crimes in Bail is allowed in extradition. - The modern trend in public international law is the
Hongkong. primacy placed on the worth of the individual
Petitioner alleged that the trial person and the sanctity of human rights. Slowly,
court committed grave abuse of the recognition that the individual person may
discretion amounting to lack or properly be a subject of international law is now taking
excess of jurisdiction in admitting root. The vulnerable doctrine that the subjects of
private respondent to bail; that international law are limited only to states was
there is nothing in the Constitution
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dramatically eroded towards the second half of the those detained or arrested can participate in the
past century. proceedings before a court, to enable it to decide
- the Nuremberg and Tokyo trials after World War II without delay on the legality of the detention and order
resulted in the unprecedented spectacle of individual their release if justified. In other words, the Philippine
defendants for acts characterized as violations of the authorities are under obligation to make available
laws of war, crimes against peace, and crimes against to every person under detention such remedies
humanity. Recently, under the Nuremberg principle, which safeguard their fundamental right to liberty.
Serbian leaders have been persecuted for war crimes These remedies include the right to be admitted
and crimes against humanity committed in the former to bail.
Yugoslavia. These significant events show that the - Reexamination of Court’s Ruling in Purganan:
individual person is now a valid subject of o First, we note that the exercise of the State’s
international law. power to deprive an individual of his liberty is
- also after World War II, both international not necessarily limited to criminal
organizations and states gave recognition and proceedings. Respondents in administrative
importance to human rights. Thus, on December 10, proceedings, such as deportation and
1948, the United Nations General Assembly adopted quarantine, have likewise been detained.
the Universal Declaration of Human Rights in which o Second, to limit bail to criminal proceedings
the right to life, liberty and all the other fundamental would be to close our eyes to our
rights of every person were proclaimed. While not a jurisprudential history. Philippine
treaty, the principles contained in the said jurisprudence has not limited the exercise of
Declaration are now recognized as customarily the right to bail to criminal proceedings only.
binding upon the members of the international This Court has admitted to bail persons who
community. are not involved in criminal proceedings. In
- Mejoff v. Director of Prisons,2 this Court, in granting fact, bail has been allowed in this
bail to a prospective deportee, held that under the jurisdiction to persons in detention during
Constitution,3 the principles set forth in that the pendency of administrative
Declaration are part of the law of the land. proceedings, taking into cognizance the
- The Philippines, along with the other members of the obligation of the Philippines under
family of nations, committed to uphold the international conventions to uphold
fundamental human rights as well as value the worth human rights.
and dignity of every person. This commitment is - If bail can be granted in deportation cases, we see no
enshrined in Section II, Article II of our Constitution justification why it should not also be allowed in
which provides: "The State values the dignity of every extradition cases. Likewise, considering that the
human person and guarantees full respect for human Universal Declaration of Human Rights applies to
rights." The Philippines, therefore, has the deportation cases, there is no reason why it
responsibility of protecting and promoting the right of cannot be invoked in extradition cases. After all,
every person to liberty and due process, ensuring that both are administrative proceedings where the
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innocence or guilt of the person detained is not in A: The nuremberg trials show us that di lang states ang subject of
issue. international law. May primacy na binibigay kay individual at sa worth
- Clearly, the right of a prospective extraditee to apply niya.
for bail in this jurisdiction must be viewed in the light A: However kahit ganun ang trend and nangyayare, makikita natin sa
of the various treaty obligations of the Philippines Vinuya na kahit dapat ipaglaban ng state ang karapatan ng mga
concerning respect for the promotion and protection citizens niya hindi pwedeng pwersahin ng korte ang executive
of human rights. Under these treaties, the department.
presumption lies in favor of human liberty. Thus,
A: Jus cogens ba na bawal manggahasa sa giyera, the answer is yes.
the Philippines should see to it that the right to liberty
of every individual is not impaired. A: Pero sabi ni Vinuya dapat prinove mo which is di ako gaano nag
- The time-honored principle of pacta sunt aagree. If ever, the real issue kasi is whether may duty to prosecute
servanda demands that the Philippines honor its ba ng violators ng international crimes? And sa Vinuya makikita na
obligations under the Extradition Treaty it entered into hindi daw nag effort to show it.
with the Hong Kong Special Administrative Region. A: In any case in vinuya sa pangalawang decision ng SC makikita mo
Failure to comply with these obligations is a setback dun na, ang procedural grounds na-deny yung gustong mangyari ng
in our foreign relations and defeats the purpose of petitioners.
extradition. However, it does not necessarily mean
that in keeping with its treaty obligations, the
Philippines should diminish a potential extraditee’s
rights to life, liberty, and due process. More so, where
these rights are guaranteed, not only by our
Constitution, but also by international conventions, to
which the Philippines is a party. We should not,
therefore, deprive an extraditee of his right to apply
for bail, provided that a certain standard for the grant
is satisfactorily met.
In relation to Vinuya:
From Sir (Tinanong ko na! HAHAHA)

A: kasi, parang walang basis ang Nuremberg Trials at ang iniisip ng
lahat ay nullum crimen nulla poena sine lege
A: Which leads us to the other aspect
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Public International Law 2019-2020

If you cannot find recit questions to all cases or topics, it is because

UN Resolution RECIT QUESTION:

1. A State may invoke an error in a treaty as invalidating its consent to Article 52

A treaty is void if, at the time of its conclusion, it conflicts with a

Article 50 AMENDMENT v. MODIFICATION

Danube Dam Case

Monistic Theory Article 13 of Declaration of Rights and Duties of States Adopted

1. People – Means a community of persons sufficient in number

“(ii) Scope of the Right to Self-determination

Article 103 4. Trusteeship Council

From Sir (Tinanong ko na! HAHAHA)

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