DIPLOMATIC & CONSULAR LAW 3.

Diplomatic Immunities and Privileges

1. Personal Inviolability
A.DIPLOMATIC LAW GR: The person of a diplomatic agent shall be inviolable. He
shall not be liable to any form of arrest or detention. (Art. 29,
Definition: Rules regulating the variousaspects of diplomatic relations. VCDR)

Nature: The rules of diplomatic law “constitute a self-contained regime, which
on the one hand, lays down the receiving state’s obligations regarding the
facilities, privileges and immunities to be accorded to diplomatic missions and,
on the other, foresees their possible abuse by members of the mission and
specifies the means at the disposal of the receiving state to counter any such
abuse.”
Relevant Convention: Vienna Convention on Diplomatic Relations (“VCDR”)
XPN: The diplomatic envoy may be arrested temporarily in case
of urgent danger, such as when he commits an act of violence
which makes it necessary to put him under restraint for the
purpose of preventing similar acts.
The receiving State shall treat him with due respect and shall take
all appropriate steps to prevent any attack on his person, freedom
or dignity. (Art. 29, VCDR)

Diplomatic Intercourse/Right of legation- The right of a state to send and The duty to treat him with due respect and protect his person,
receive diplomatic missions, which enables states to carry on friendly freedom or dignity from physical interference by other persons
intercourse. (Art. 22, VCDR).

Diplomatic relations and diplomatic missions are separately established by Scope

mutual consent. a. The private residence of a diplomatic agent shall
enjoy the same inviolability and protection as the
1. Agents of Diplomatic Relations premises of the mission.
b. His papers, correspondence and, except as provided
1. Diplomatic Corps- This refers to the collectivity of all in paragraph 3 of article 31
diplomatic envoys accredited to a state composed of: c. His property shall likewise enjoyinviolability. (Art.
a. Head of mission, classified into: 30 VCDR)
i. Ambassadors or nuncios accredited to
the heads of State, and other heads 2. Inviolability of Premises of the Mission and the Archives- The
ofmission of equivalent rank; term “premises of the mission” means the buildings or parts of
ii. Envoys, ministers, and internuncios the buildings and the land ancillary thereto used for the purposes
accredited to theheads of State; of the mission including the residence of the diplomatic agent
iii. Charges d’affaires accreditedto (Art. 1(i), VCDR). This is irrespective of the ownership of the
Ministers of Foreign Affairs(Art. 14, premises.
VCDR)
b. Diplomatic staff, engaged in diplomaticactivities Rule:
and are accorded diplomaticrank (Art. 1(d), VCDR) a. The premises of the mission shall be inviolable.
c. Administrative and technical staff,those The agents of the receiving State may not enter
employed in the administrative and technical them, except with the consent of the head of the
service of the mission (Art. 1(f), VCDR) mission.
d. Service staff, engaged in the domestic service of b. The receiving State is under a special duty to take
the mission (Art. 1(g), VCDR) all appropriate steps to protect the premises of the
mission against any intrusion or damage and to
In the Philippines, the President appoints, sends, and instructs the prevent any disturbance of the peace of the mission
diplomatic and consular representatives (Sec. 16, Art. VII, 1987 or impairment of its dignity.
Constitution). c. The premises of the mission, their furnishings and
other property thereon and the means of transport of
2. Heads of State- The head of State represents the sovereignty of the mission shall be immune from search,
the State and enjoys the right to special protection for his physical requisition, attachment or execution. (Art. 22,
safety and the preservation of his honor and reputation. VCDR)
The head of State is immune from criminal and civil jurisdiction,
except when he himself is the plaintiff, and is not subject to tax or 2. Right to Official Communication
exchange or currency restrictions. Upon the principle of Rule: The envoy is entitled to fully and freely communicate with
extraterritoriality, his quarters, archives, property, and means of his government.
transportation are inviolate. a. The receiving state shall permit and protect free
communication on the part of the mission for all
3. Foreign Office- This is the body entrusted with the conduct of official purposes;
actual day-to-day foreign affairs. It is headed by a secretary or a b. The mission may employ all appropriate means to
minister who, in proper cases, may make binding declarations on send and receive messages by any of the usual
behalf of his government. modes of communication or by diplomatic courier,
which shall enjoy inviolability;
2. Functions and Duties of Agents c. The official correspondence of the mission is
inviolable; and
1. Represent the sending State in the receiving State. d. The diplomatic bag shall not be opened or detained
2. Protect in the receiving State the interests of the sending State (Art. 27, VCDR).
and its nationals, within the limits allowed by international law.
3. Negotiate with the government of the receiving State. 3. Immunity from Local Jurisdiction
4. Ascertain, by all lawful means, the conditions and developments Persons Entitled
in the receiving State and reporting the same to the sending State. a. Diplomatic agent and family: Diplomatic agent
5. Promote friendly relations between the sending State and and members of the family of the diplomatic agent
receiving State, and developing their economic, cultural and forming part of his household, who are not
scientific relations. nationals of the receiving state (Art. 31, VCDR);
6. If diplomatic relation is severed, entrust the protection of its b. Administrative and technical staff:
nationals to the diplomatic mission of a third state acceptable to i. As to criminal jurisdiction,
the receiving state; and members of the administrative and
7. May protect the interest of a third State by agreement with the technical staff of the diplomatic
receiving State, if there are no diplomatic relations between the mission, as well as members of their
third state and the receiving state. families forming part of their
respective households, who are not
nationals of or permanent residents in
the receiving state;
ii. As to civil and administrative
jurisdiction, immunity shall not
extend to acts performed outside the
course of their duties (Art. 37, VCDR)
and
c. Service staff: Members of the service staff of the
diplomatic mission, who are not nationals of or
permanent residents in the receiving state, with
respect to acts performed in the course of their
duties (Art. 37, VCDR).

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Duration of Immunities and Privileges
Immunities and privileges begin from the moment the person enters the
territory of the receiving state to take up his post or, if already in its territory,
from the moment when his appointment is notified to the Ministry of Foreign
Affairs.
They come to an end when he:
1. exits the country, or
2. upon expiration of a reasonable period inwhich to leave the
country (Art. 39, VCDR).
Waiver of Immunity from Jurisdiction
In proceedings, whether criminal, civil or administrative, the waiver must be:
1. made by the sending State itself; and
2. express (Art. 32, VCDR).
State practice indicates that the authority to exercise the waiver rests with the
sovereign organs, and not the diplomatic agent or official himself.
A diplomatic agent is not obliged to give evidence as a witness. (Art. 31,
VCDR)
Criminal Jurisdiction
Rule: A diplomatic agent enjoys immunity from criminal jurisdiction of the
receiving State (Art. 31, VCDR). He may not be arrested, prosecuted,
prosecuted or punished for any offense he may commit, unless his immunity is
waived.
4BLUE 95 NOTE: The immunity of a diplomatic agent from the jurisdiction
of the receiving State does not exempt him from the jurisdiction of the sending
State. (Art. 31(4) VCDR)
Civil and Administrative Jurisdiction
GR: An agent shall enjoy immunity from its civil and administrative
jurisdiction. (Art. 31, VCDR)
XPNs:
1. A real action relating to private immovable property situated in
the territory of the receiving State, unless he holds it on behalf of
the sending State for the purposes of the mission;
2. An action relating to succession in which the diplomatic agent is
involved as executor, administrator, heir or legatee as a private
person and not on behalf of the sending State;
3. An action relating to any professional or commercial activity
exercised by the diplomatic agent in the receiving State outside
his official functions. (Art. 31, VCDR)
No measures of execution may be taken in respect of a diplomatic agent except
in the cases where he comes under the above exceptions and provided that the
measures concerned can be taken without infringing the inviolability of his
person or of his residence. (Art. 31, VCDR)
Q: What is the right of legation, and how is it undertaken between states? Explain
your answer. (2017 BAR)
A: Right of legation or the right of diplomatic intercourse is the right of the state to
send and receive diplomatic missions, which enables states to carry on friendly
intercourse. It is governed by the Vienna Convention on Diplomatic Relations (1961).
The exercise of this right is one of the most effective ways of facilitating and
promoting intercourse among nations. Through the active right of sending diplomatic
representatives and the passive right of receiving them, States are able to deal more
directly and closely with each other in the improvement of their mutual intercourse.
Q: Dr. Velen, an official of the World Health Organization (WHO) assigned in the
Philippines, arrived at the Ninoy Aquino International Airport with his personal
effects contained in twelve crates as unaccompanied baggage. As such, his personal
effects were allowed free entry from duties and taxes, and were directly stored at
Arshaine Corporation's warehouse at Makati, Political Law 130 pending Dr. Velen's
relocation to his permanent quarters. At the instance of police authorities, the
Regional Trial Court (RTC) of Makati issued a warrant for the search and seizure of
Dr. Velen's personal effects in view of an alleged violation of the Tariff and Custom's
Code. According to the police, the crates contained contraband items. Upon protest of
WHO officials, the Secretary of Foreign Affairs formally advised the RTC as to Dr.
Velen's immunity. The Solicitor General likewise joined Dr. Velen's plea of immunity
and motion to quash the search warrant. The RTC denied the motion. Is the denial of
the motion to quash proper? (2001 BAR)
A: The denial of the motion is improper. As held in World Health Organization v.
Aquino, 48 SCRA 242, as an official of the World Health Organization, Dr. Velen
enjoyed diplomatic immunity and this included exemption from duties and taxes.
Since diplomatic immunity involves a political question, where a plea of diplomatic
immunity is recognized and affirmed by the Executive Department, it is the duty of
the court to accept the claim of immunity.
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Q: 1. Discuss the differences, if any, in the privileges or immunities of diplomatic
envoys and consular officers from the civil or criminal jurisdiction of the receiving
state. 2. A consul of a South American country stationed in Manila was charged with
serious physical injuries. May he claim immunity from jurisdiction of the local court?
Explain. 3. Suppose after he was charged, he was appointed as his country’s
ambassador to the Philippines. Can his newly-gained diplomatic status be a ground for
dismissal of his criminal case? Explain. (1995 BAR)
A:
1. Under Article 32 of the Vienna Convention on Diplomatic Relations, a
diplomatic agent shall enjoy immunity from the criminal jurisdiction of the
receiving State. He shall also enjoy immunity from its civil and administrative
Jurisdiction except in the case of:
a. A real action relating to private immovable property situated in the territory
of the receiving State, unless he holds it on behalf of the sending State for the
purposes of the mission;
b. An action relating to succession in which the diplomatic agent is invoked as
executor, administrator, heir or legatee as a private person and not on behalf of
the sending State;
c. An action relating to any professional or commercial activity exercised by the
diplomatic agent in the receiving State outside his official functions. On the
other hand, under Article 41 of the Vienna Convention on Consular Relations, a
consular officer does not enjoy immunity from the Criminal jurisdiction of the
receiving State. Under Article 43 of the Vienna Convention on Consular
Relations, consular officers are not amenable to the jurisdiction of the judicial or
administrative authorities of the receiving State in respect of acts performed in
the exercise of consular functions. However, this does not apply in respect of a
civil action either: a. arising out of a contract concluded by a consular officer in
which he did not contract expressly or impliedly as an agent of the sending
State; or b. by a third party for damage arising from an accident in the receiving
State caused by a vehicle, vessel, or aircraft.
2. NO, he may not claim immunity from the jurisdiction of the local court.
Under Article 41 of the Vienna Convention of Consular Relations, consuls do
not enjoy immunity from the criminal jurisdiction of the receiving State. He is
not liable to arrest or detention pending trial unless the offense was committed
against his father, mother, child, ascendant, descendant or spouse. Consuls are
not liable to arrest and detention pending trial except in the case of a grave
crime and pursuant to a decision by the competent judicial authority. The crime
of physical injuries is not a grave crime unless it be committed against any of
the abovementioned persons (Schneckenburger v. Moran, 63 Phil. 249).
3. YES, the case should be dismissed. Under Article 40 of the Vienna
Convention on Diplomatic Relations, if a diplomatic agent is in the territory of a
third State, which has granted him a passport visa if such visa was necessary,
while proceeding to take up his post, the third State shall accord him
inviolability and such other immunities as may be required to ensure his transit.
Q: A foreign ambassador to the Philippines leased a vacation house in Tagaytay for
his personal use. For some reason, he failed to pay rentals for more than one year. The
lessor filed an action for the recovery of his property in court. a. Can the foreign
ambassador invoke his diplomatic immunity to resist the lessor’s action? b. The lessor
gets hold of evidence that the ambassador is about to return to his home country. Can
the lessor ask the court to stop the ambassador’s departure from the Philippines?
(2000 BAR)
A:
a. No, the foreign ambassador cannot invoke his diplomatic immunity to resist the
action, since he is not using the house in Tagaytay City for the purposes of his
mission but merely for vacation. Under Article 3(1)(a) of the Vienna Convention on
Diplomatic Relations, a diplomatic agent has no immunity in case of a real action
relating to private immovable property situated in the territory of the receiving State
unless he holds it on behalf of the sending State for purposes of the mission.
b. No, the lessor cannot ask the court to stop the departure of the ambassador from the
Philippines. Under Article 29 of the Vienna Convention, a diplomatic agent shall not
be liable to any form of arrest or detention
Q: A group of high-ranking officials and rankand-file employees stationed in a
foreign embassy in Manila were arrested outside embassy grounds and detained at
Camp Crame on suspicion that they were actively collaborating with “terrorists" out
to overthrow or destabilize the Philippine Government. The Foreign Ambassador
sought their immediate release, claiming that the detained embassy officials and
employees enjoyed diplomatic immunity. If invited to express your legal opinion on
the matter, what advice would you give? (2003 BAR)
A: I shall advice that the high-ranking officials and rank-and- file employees be
released because of their diplomatic immunity. Article 29 of the Vienna Convention
on Diplomatic Relations provides: “The person of a diplomatic agent shall be
inviolable. He shall not be liable to any form of arrest or detention.” Under Article 37
of the Vienna Convention on Diplomatic Relations, members of the administrative
and technical staff of the diplomatic mission shall, if they are not nationals of or
permanent residents in the receiving State, enjoy the privileges and immunities
specified in Article 29. Under Article 9 of the Vienna Convention on Diplomatic
Relations, the remedy is to declare the high-ranking officials and rank-and-file
employees personae non gratae and ask them to leave.
ALTERNATIVE ANSWER: Under the Vienna Convention on Diplomatic Relations,
a diplomatic agent “shall not be liable to any form of arrest or detention (Article 29)
and he enjoys immunity from criminal jurisdiction (Article 31).This immunity may
cover the “high-ranking officials” in question, who are assumed to be diplomatic
officers or agents. With respect to the “rank-and-file employees” they are covered by
the immunity referred to above, provided they are not nationals or permanent
residents of the Philippines, pursuant to Article 37(2) of the said Convention. If the
said rank-and-file employees belong to the service staff of the diplomatic mission
(such as drivers) they may be covered by the immunity (even if they are not
Philippine nationals or residents) as set out in Article 37(3), if at the time of the arrest
they were in “acts performed in the course of their duties.” If a driver was among the
said rank-and-file employees and he was arrested while driving a diplomatic vehicle
or engaged in related acts, still he would be covered by immunity.
 Q: MBC, an alien businessman dealing in carpets and caviar, filed a suit against
policemen and YZ, an attache of XX Embassy, for damages because of malicious
prosecution. MBC alleged that YZ concocted false and malicious charges that he was
engaged in drug trafficking, whereupon narcotics policemen conducted a "buy-bust"
operation and without warrant arrested him, searched his house, and seized his money
and jewelry, then detained and tortured him in violation of his civil and human rights
as well as causing him, his family and business serious damages amounting to two
million pesos. MBC added that the trial court acquitted him of the drug charges.
Assailing the court's jurisdiction: YZ now moves to dismiss the complaint, on the
ground that: 1. he is an embassy officer entitled to diplomatic immunity; and, 2. the
suit is really a suit against his home state without its consent. He presents diplomatic
notes from XX Embassy certifying that he is an accredited embassy officer
recognized by the Philippine government. He performs official duties, he says, on a
mission to conduct surveillance on drug exporters and then inform local police
officers who make the actual arrest of suspects. Are the two grounds cited by YZ to
dismiss the suit tenable? (2004 BAR)
A: The claim of diplomatic immunity of YZ is not tenable, because he does not
possess an acknowledged diplomatic title and is not performing duties of a diplomatic
nature. However, the suit against him is a suit against XX without its consent. YZ was
acting as an agent of XX and was performing his official functions when he
conducted surveillance on drug exporters and informed the local police officers who
arrested MBC. He was performing such duties with the consent of the Philippine
government, therefore, the suit against YZ is a suit against XX without its consent
(Minucher v. Court of Appeals, 397 SCRA 244).
Q: Italy, through its Ambassador, entered into a contract with Abad for the
maintenance and repair of specified equipment at its Embassy and Ambassador's
Residence, such as air conditioning units, generator sets, electrical facilities, water
heaters, and water motor pumps. It was stipulated that the agreement shall be effective
for a period of four years and automatically renewed unless cancelled. Further, it
provided that any suit arising from the contract shall be filed with the proper courts in
the City of Manila. Claiming that the Maintenance Contract was unilaterally,
baselessly and arbitrarily terminated, Abad sued the State of Italy and its Ambassador
before a court in the City of Manila. Among the defenses, they raised were "sovereign
immunity" and "diplomatic immunity." a. As counsel of Abad, refute the defenses of
"sovereign immunity" and "diplomatic immunity" raised by the State of Italy and its
Ambassador. b. At any rate, what should be the court's ruling on the said defenses?
(2005 BAR)
A:
a. As counsel for Abad, I will argue that sovereign immunity will not lie as it is an
established rule that when a State enters into a contract, it waives its immunity and
allows itself to be sued. Moreover, there is a provision in the contract that any suit
arising therefrom shall be filed with the proper courts of the City of Manila. On the
issue of diplomatic immunity, I will assert that the act of the Ambassador unilaterally
terminating the agreement is tortuous and done with malice and bad faith and not a
sovereign or diplomatic function.
b. The court should rule against said defenses. The maintenance contract and repair of
the Embassy and Ambassador's Residence is a contract in jus imperii, because such
repair of said buildings is indispensable to the performance of the official functions of
the Government of Italy. Hence, the contract is in pursuit of a sovereign activity in
which case, it cannot be deemed to have waived its immunity from suit. On the matter
of whether or not the Ambassador may be sued, Article 31 of the Vienna Convention
on Diplomatic Relations provides that a diplomatic agent enjoys immunity from the
criminal, civil and administrative jurisdiction of the receiving state except if the act
performed is outside his official functions, in accordance with the principle of
functional necessity. In this case, the act of entering into the contract by the
Ambassador was part of his official functions and thus, he is entitled to diplomatic
immunity (Republic of Indonesia v. Vinzons, G.R. No. 154705 [2003]).
Q: Ambassador Gaylor is State Juvenus diplomatic representative to State
Hinterlands. During one of his vacations, Ambassador Gaylor decided to experience
for himself the sights and sounds of State Paradise, a country known for its beauty and
other attractions. While in State Paradise, Ambassador Gaylor was caught in the
company of children under suspicious circumstances. He was arrested for violation of
the strict anti-pedophilia statute of State Paradise. He claims that he is immune from
arrest and incarceration by virtue of his diplomatic immunity. Does the claim of
Ambassador Gaylor hold water? (2014 BAR)
A: Ambassador Gaylor cannot invoke his diplomatic immunity. In accordance with
Paragraph 1, Article 31 of Vienna Convention of Diplomatic Relations, since State
Paradise is not his receiving state, he does not enjoy diplomatic immunity within its
territory. Under Paragraph 1, Article 40 of the Vienna Convention of diplomatic
Relations, he cannot be accorded diplomatic immunity in State Paradise, because he is
not passing through it to take up or return to his post or to return to State Paradise.
Q: Andreas and Aristotle are foreign nationals working with the Asian Development
Bank (ADS) in its headquarters in Manila. Both were charged with criminal acts
before the local trial courts. Andreas was caught importing illegal drugs into the
country as part of his "personal effects" and was thus charged with violation of
Comprehensive Dangerous Drugs Act of 2002. Before the criminal proceedings could
commence, the President had him deported as an undesirable alien. Aristotle was
charged with grave oral defamation for uttering defamatory words against a colleague
at work. In his defense, Aristotle claimed diplomatic immunity. He presented as proof
a communication from the Department of Foreign Affairs stating that, pursuant to the
Agreement between the Philippine Government and the ADS, the bank's officers and
staff are immune from legal processes with respect to acts performed by them in their
official capacity. Is Aristotle's claim of diplomatic immunity proper? (2018 BAR)
A: The claim of diplomatic immunity is improper. Courts cannot blindly adhere to
and take on its face the communication from the DFA that Aristotle is covered by an
immunity. The DFA’s determination that a certain person is covered by immunity is
only preliminary and has no binding effect on courts. Besides, slandering a person
cannot possibly be covered by the immunity agreement because our laws do not allow
the commission of a crime, such as defamation, under the guise of official duty. Under
the Vienna Convention on Diplomatic Relations, a diplomatic agent enjoys immunity
from criminal jurisdiction of the receiving state except in the case of an action relating
to any professional or commercial activity exercised by the diplomatic agent outside
his official functions in the receiving state. The commission of a crime is not part of
official duty. (Liang vs. People, G.R. No. 125865, January 28, 2000)

Q: Adams and Baker are American citizens residing in the Philippines. Adams
befriended Baker and became a frequent visitor at his house. One day, Adams arrived
with 30 members of the Philippine National Police, armed with a search warrant
authorizing the search of Baker's house and its premises for dangerous drugs being
trafficked to the United States of America. The search purportedly yielded positive
results, and Baker was charged with Violation of the Dangerous Drugs Act. Adams
was the prosecution's principal witness. However, for failure to prove his guilt beyond
reasonable doubt, Baker was acquitted. Baker then sued Adams for damages for filing
trumped-up charges against him. Among the defenses raised by Adams is that he has
diplomatic immunity, conformably with the Vienna Convention on Diplomatic
Relations. He presented Diplomatic Notes from the American Embassy stating that he
is an agent of the United States Drug Enforcement Agency tasked with "conducting
surveillance operations" on suspected drug dealers in the Philippines believed to be
the source of prohibited drugs being shipped to the U.S. It was also stated that after
having ascertained the target, Adams would then inform the Philippine narcotic agents
to make the actual arrest. a. As counsel of plaintiff Baker, argue why his complaint
should not be dismissed on the ground of defendant Adams' diplomatic immunity
from suit. b. As counsel of defendant Adams, argue for the dismissal of the complaint.
(2005 BAR)
A:
a. As counsel for Baker, I would argue that Adams is not a diplomatic agent
considering that he is not a head of mission nor is he part of the diplomatic staff that is
accorded diplomatic rank. Thus, the suit should not be dismissed as Adams has no
diplomatic immunity under the 1961 Vienna Convention on Diplomatic Relations.
b. As counsel for Adams, I would argue that he worked for the United States Drug
Enforcement Agency and was tasked to conduct surveillance of suspected drug
activities within the country with the approval of the Philippine government. Under
the doctrine of State Immunity from Suit, if the acts giving rise to a suit are those of a
foreign government done by its foreign agent, although not necessarily a diplomatic
personage, but acting in his official capacity, the complaint could be barred by the
immunity of the foreign sovereign from suit without its consent. Adams may not be a
diplomatic agent but the Philippine government has given its imprimatur, if not
consent, to the activities within Philippine territory of Adams and Political Law 132
thus he is entitled to the defense of state immunity from suit (Minucher v. CA, G.R.
No. 142396, [2003]).

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B.CONSULAR RELATIONS

Definition: These are the relations which come into existence between two IMMUNITIES AND PRIVILEGES
States by reason of the fact that consular functions are exercised by
authorities of one State in the territory of the other. a. Personal Inviolability Rule
i. They are not liable to arrest or detention
Relevant Convention: Vienna Convention on Consular Relations (VCCR) pending trial, except in case of a grave
crime and pursuant to a decision of a
Consular relations are established by mutual consent. The consent given to the competent judicial authority; and
ii. shall not be committed to prison nor be
establishment of diplomatic relations between two States implies consent to the
subject to any other form of restriction to
establishment of consular relations, unless otherwise stated but the severance of personal freedom, except in the case of
diplomatic relations shall not ipso facto involve the severance of consular grave crime pursuant to a decision of
relations. (Art. 2, VCCR) competent judicial authority, or in the
execution of a final judicial decision
Consuls- Consuls are state agents residingabroad with certain functions. iii. If criminal proceedings are instituted
against a consular officer, he must appear
Ranks: before the competent authorities but the
a. Consul general – heads several consular districts, or one proceedings shall be conducted with the
exceptionally large consular district; respect due to him by reason of his
b. Consul – in charge of a small district or town or port; official position and, except in par. 1, in
c. Vice Consul – assists the consul; a manner which will hamper the exercise
of consular functions as little as possible.
d. Consular agent – one entrusted with the performance of
iv. When, in the circumstances mentioned in
certain functions by theconsul. paragraph 1 it has become necessary to
detain a consular officer, the proceedings
Functions and Duties- The functions and duties of Consuls include but are not against him shall be instituted with the
limited to the ff: minimum of delay. (Art. 41, VCCR).
a. protecting in the receiving State the interests of the sending State and b. Inviolability of Consular Premises- The term
of its nationals, both individuals and bodies corporate, within the limits “consular premises” refers to “the buildings or parts of
permitted by international law; buildings and the land ancillary thereto, irrespective of
b. issuing passports and travel documents to nationals of the sending ownership, used exclusively for the purposes of
State, and visas or appropriate documents to persons wishing to travel consular post” (Art. 1(j), VCCR).
to the sending State; Rule
c. helping and assisting nationals, both individuals and bodies corporate, i. The authorities of the receiving State
shall not enter that part of the consular
of the sending State;
premises which is used exclusively for
d. acting as notary and civil registrar and in capacities of a similar kind, the purpose of the work of the consular
and performing certain functions of an administrative nature, provided post except with the consent of the head
that there is nothing contrary thereto in the laws and regulations of the of the consular post or of his designee or
receiving State; of the head of the diplomatic mission of
e. safeguarding the interests of nationals, both individuals and bodies the sending State. The consent of the
corporate, of the sending States in cases of succession mortis causa in head of the consular post may, however,
the territory of the receiving State, in accordance with the laws and be assumed in case of fire or other
regulations of the receiving State; disaster requiring prompt protective
f. performing any other functions entrusted to a consular post by the action.
sending State which are not prohibited by the laws and regulations of ii. The receiving State is under a special
the receiving State or to which no objection is taken by the receiving duty to take all appropriate steps to
protect the consular premises against any
State or which are referred to in the international agreements in force
intrusion or damage and to prevent any
between the sending State and the receiving State. (Art. 5, VCCR) disturbance of the peace of the consular
post or impairment of its dignity.
iii. The consular premises, their furnishings,
The Consular Bag the property of the consular post and its
means of transport shall be immune from
GR: The consular bag shall neither be opened nor detained. (Art. 35 VCCR) any form of requisition for purposes of
national defense or public utility. If
XPN: The receiving state may, however, request that the consular bag be expropriation is necessary for such
opened if the authorities have serious reasons to believe that the bag contains purposes, all possible steps shall be taken
something other than correspondence, documents or articles intended to avoid impeding the performance of
exclusively for official use. If the request is accepted, the bag may be opened in consular functions, and prompt, adequate
and effective compensation shall be paid
the presence of the authorized representative of the sending state; If the request
to the sending State. (Art. 31, VCDR)
is refused, the bag shall be returned to its place of origin (Art. 35, VCCR).
c. Inviolability of Archives- The inviolability of archives
Immunity from Local Jurisdiction is unconditional. They shall be inviolable at all times
GR: Consular officers and employees are entitled to immunity from the and wherever they may be (Art. 33, VCCR)
jurisdiction of administrative and judicial authorities in the receiving
state. (Art. 43, VCCR) d. Freedom of Communication
Rule
XPNs: This immunity shall not apply to a civil action either: i. The receiving State shall permit and
protect freedom of communication on the
A.Arising out of a contract by a consular officer or employee, which he part of the consular post for all official
did not conclude expressly or impliedly as an agent of the sending state; purposes.
ii. In communicating with the Government,
or
the diplomatic missions and other
consular posts, wherever situated, of the
B.By a third party for damage arising from an accident caused by vehicle, sending State, the consular post may
vessel or aircraft in the receiving state (Art. 43, VCCR). employ all appropriate means, including
diplomatic or consular couriers,
diplomatic or consular bags and
Right to Consular Assistance messages in code or cipher.
iii. Theofficialcorrespondenceoftheconsular
Diplomatic Protection- Right of a state to claim rights for its nationals abroad. post shall be inviolable. Official
correspondence means all
States have a positive duty to accord consular privileges to sending states correspondence relating to the consular
whose nationals have run into trouble in the jurisdiction of the receiving post and its functions.
states.

See Art. 36(1), VCCR, which gives consular officers the right to
communicate with nationals of the sending state and to have access to
them, and give consular officers the right to visit a national of the sending 4BLUE 95 THE BEST
state who is in prison,custody, or detention.

However, the VCCR violation does not automatically result in the partial
or total annulment of conviction or sentence.

4
NATIONALITY AND STATELESSNESS

NATIONALITY STATELESSNESS

Nationality is the tie that binds an individual to his state, from which he can Definition- For the purpose of this Convention, the term “stateless person”
claim protection and whose laws he is obliged to obey. It is membership in a means a person who is not considered as a national by any State under the
political community with all its concomitant rights and obligations. operation of its law. (Art. 1, Convention Relating to the Status of Stateless
Persons (1960))
Importance- Nationality is important in international law because an
individual ordinarily can participate in international relations only through the Statelessness is the condition or status of an individual who is born without any
instrumentality of the state to which he belongs, as when his government nationality or who loses his nationality without retaining or acquiring another.
asserts a claim on his behalf for injuries suffered by him in a foreign
jurisdiction. This remedy would not be available to a stateless individual. Rights of A Stateless Person
1. The right to religion and religious instruction
Acquisition of Nationality 2. Access to courts
1. Birth 3. Elementary education
a. Jus Sanguinis: where a person acquires the 4. Public relief and assistance and rationingof products in short
nationality of the state where he is born. supply
b. Jus Soli: where a person acquires the nationality of 5. Treatment no less favorable than thataccorded to aliens
his parents. 6. Right of Association

2. Naturalization- Naturalization is a process by which a person
acquires a nationality after birth by any means provided by the
law.
There are 2 types of naturalization
a. Direct:
i. By individual proceedings, usually
judicial, under general naturalization
laws;
ii. By special act of legislature;
iii. By collective change of nationality as
a result of cession or subrogation;
iv. By adoption.
b. Derivative, usually subject to stringent restrictions
and conditions:
i. On the wife of the naturalized
husband;
ii. On the minor children of the
naturalizedparent;
iii. On the alien upon marriage to
anational.
NOTE: That the Convention Relating to the Status of Stateless persons does
not in any way enumerate an exclusive listing of rights granted to stateless
persons.
Right to Nationality under the Universal Declaration on Human Rights
(UDHR)
1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of hisnationality nor denied
the right to change his nationality (Art. 15)
Right to Nationality under the International Convention on Civil and
Political Rights (ICCPR)
1. Every child shall have, without any discrimination as to race,
colour, sex, language, religion, national or social origin, property
or birth, the right, to such measures of protection as are required
by his status as a minor, on the part of his family, society and the
State.
2. Every child shall be registered immediately after birth and shall
have a name.
3. Every child has the right to acquire a nationality (Art. 24).

CONCEPTS ON NATIONALITY Nationality of Foundlings

Multiple Nationality- acquired as the result of the concurrent application to
an individual of the conflicting municipal laws of two or more states
claiming him as their national.
Example: Dual Citizenship in Philippine Law, such as when a child is born in
the United States of Filipino parents would be an American national under jus
soli and a Filipino national under jus sanguinis, or when a Filipino citizen
marries a foreigner and acquires derivative citizenship but does not lose
Filipino citizenship unless by act or omission they are deemed to have
renounced it.
Nationality in Philippine Law- The Philippine Constitution applies the jus
sanguinis principle which means the rule of descent or blood.
Definition- A deserted or abandoned infant or child whose parents, guardian or
relatives are unknown; or a child committed to an orphanage or charitable or
similar institution with unknown facts of birth and parentage and registered in
the Civil Register as a "foundling”
4BLUE 95: The common thread of the UDHR, UNCRC and ICCPR is to
obligate the Philippines to grant nationality from birth and ensure that no child
is stateless. This grant of nationality must be at the time of birth. These
circumstances, including the practice of jus sanguinis countries, show that it is
a generally accepted principle of international law to presume foundlings as
having been born of nationals of the country in which the foundling is found
(Poe-Llamanzares v. COMELEC, G.R. No. 221697 (2016)).

Types of Citizens Under Article IV of the 1987 Philippine Constitution

1. Those who are citizens of the Philippines at the time of the Q: Assume that the extradition request was made after the Philippines adopted its
adoption of this Constitution; antihacker legislation. Will that change your answer? (2007 BAR)
2. Those whose fathers or mothers are citizens of the Philippines; A: The Philippines will be under obligation to extradite Lawrence. Both the
Philippines and the United States have an anti-hacker law. The requirement of double
3. Those born before January 17, 1973, of Filipino mothers, who
criminality is satisfied even if the act was not criminal in the requested state at the
elect Philippine citizenship upon reaching the age of majority; time of its occurrence if it was criminal at the time that the request was made
and (Bassiouni, International Extradition, 4th ed., p. 469).
4. Those who are naturalized in accordance with law.
ALTERNATIVE ANSWER: The Philippines is under no obligation to extradite
Lawrence. There was no anti-hacker law in the Philippines when Lawrence was
Rules on Nationality charged in the United States; hence, an extradition of Lawrence is tantamount to ex
post facto application of the Philippine anti-hacker law, prohibited by Section 22,
1. Determination of Nationality– Anyquestion as to whether a Article III of the 1987 Constitution.
person possesses the nationality of a particular state shall be
determined in accordance with the law of that state. These laws Q: What is the difference if any between extradition and deportation? (1993 BAR)1
shall be recognized by other states so long as they are consistent
A: The following are the differences between extradition and deportation:
with international conventions, international customs and the
principles of law generally recognized with regard to a. EXTRADITION is effected for the benefit of the state to which the person
nationality(Art. 2, Hague Convention of 1930) being extradited will be surrendered because he is a fugitive criminal in that
2. Loss of Nationality state, while DEPORTATION is effected for the protection of the State expelling
a. Voluntary an alien because his presence is not conducive to the public good.
i. Renunciation which may beexpress or
implied b. EXTRADITION is effected on the basis of an extradition treaty or upon the
ii. Request for release request of another state, while DEPORTATION is the unilateral act of the state
b. Involuntary expelling an alien.
i. Forfeiture as the result of c. In EXTRADITION, the alien will be surrendered to the state asking for his
somedisqualification or prohibited extradition, while in DEPORTATION the undesirable alien may be sent to any
act. state willing to accept him.
ii. Substitution of one nationality
foranother.

5
GENERAL PRINCIPLES OF TREATY LAW 4. If consent was obtained through fraudulent conduct of another
negotiating state (Art. 49, VCLT).
5. If the representative of a state was corrupted to consent by another
Definition of Treaty- A treaty, under international Law is: negotiating state (Art. 50, VCLT).
6. If the representative of a State was coerced through acts or threats
1. An international agreement; directed against him (Art. 51, VCLT).
2. Concluded between states; 7. If the conclusion of a treaty is procured by threat or use of force (Art. 52,
3. In written form; VCLT).
4. Governed by international law; 8. If it violates a jus cogens norm of international law (Art. 53, VCLT).
5. Whether embodied in a single instrument or in two or more
related instruments; and Grounds for Termination of the Treaty
6. Whatever its particular designation (Art. 2 (1)(a), VCLT)
1. Termination of the treaty or withdrawal of a party in accordance with the
However, the definitions under the VCLT are “without prejudice to the use of those provisions of the treaty or by consent of all the parties (Art. 54, VCLT)
terms or to the meanings which may be given to them in the internal law of any State” 2. Denunciation or desistance by a party in accordance with the provisions of
(Art. 2(2), VCLT). the treaty, or if the treaty does not so provide:
a. The parties intended to admit thepossibility of denunciation orwithdrawal; or
Requisites for a Valid Treaty b. A right of denunciation or withdrawalmay be implied from the nature of the
1. Treaty Making Capacity treaty (Art. 56, VCLT).
2. Competence of the representative giving consent 3. Conclusion of a subsequent inconsistent treaty (Art. 59, VCLT).
3. Consent freely given 4. Material breach or termination or suspension of a treaty as a consequence of
4. Object and Subject Matter its breach (Art. 60, VCLT) Either:
5. Ratification a. A repudiation of the treaty not sanctioned by the present Convention; or
b. The violation of a provision essential to the accomplishment of the object or
In addition to the constitutional requirement, ratification is likewise necessary under purpose of the treaty.(Art. 60 (3), VCLT)
international law when: 5. Supervening impossibility of performance (Art. 61, VCLT)
1. The treaty provides for consent to beexpressed by means of GR: The impossibility results from the permanent disappearance or
ratification; destruction of an object indispensable for the execution of the treaty. If
2. It is otherwise established that the negotiating states agreed that theimpossibility is temporary, it may be invoked only as a ground for
ratificationshould be required; suspending the operation of the treaty
3. The representative of the state has signedthe treaty subject to XPN: If the impossibility is the result of a breach by that party either of an
ratification; or obligation under the treaty or of any other international obligation owed to
4. The intention of the State to sign the treaty subject to ratification any other party to the treaty.
appears from the full powers of its representative, or was expressed 6. Fundamental change of circumstances (Art. 62, VCLT)otherwise known as
during the negotiation (Art.14(1), VCLT). rebus sic stantibus

The doctrine of rebus sic stantibus is a principle in customary international

Important Concepts in Treaty law
1. Pacta Sunt Servanda- Every treaty in force is binding upon the parties to it
and must be performed by them in good faith (Art. 26, VCLT).
NOTE: This is considered as customary international law and applies to all
obligations contained in a treaty, whether or not the state is a party to the
VCLT.
2. Reservations- A reservation is a unilateral statement, however phrased or
named, made by a State, when signing, ratifying, accepting, approving or
acceding to a treaty, whereby it purports to exclude or to modify the legal
effect of certain provisions of the treaty in their application to that State(Art.
2 (d), VCLT)
XPNs: A reservation shall not operate to modify or exclude the provisions of
a treaty:
a. Where the treaty expressly prohibitsreservations in general;
b. Where the treaty expressly prohibits thatspecific reservation being made; or
c. Where the reservation is incompatible with the object and purpose of the
treaty (Art. 19, VCLT)
To be considered binding on the other contracting state to the treaty, that
State must accept the reservation. A reservation is presumed to be accepted.
A reservation is deemed unaccepted when another contracting state objects.
(Art. 20, VCLT)
3. Amendment and Modification of Treaties
GR for multilateral treaties:Consent of all the parties is
required.
XPN: If the treaty itself so allows, two states may modify a provision only
insofar as their relationship inter se.
law providing that where there has been a fundamental change of
circumstances since an agreement was concluded, a party to that agreement
may WITHDRAW from or TERMINATE it.
Requisites
a. The existence of those circumstances constituted an essential basis of the
consent of the parties to be bound by the treaty; and
b. The effect of the change is radically to transform the extent of obligations
still to be performed under the treaty
c. The change of circumstances was not foreseen.
When Fundamental Change of Circumstances cannot be invoked (Art.
62 (2), VCLT):
a. If the treaty establishes a boundary; or
b. If the fundamental change is the resultof a breach by the party invoking it
either of an obligation under the treaty or of any other international
obligation owed to any other party to the treaty.
7. Severance of consular or diplomatic relations if the relations were
indispensable for the application of the treaty (Art. 63, VCLT)
8. Emergence of a new peremptory norm of general international law (Art. 64,
VCLT)
Treaties under Philippine Law
Philippine law makes a distinction between treaties and executive agreements. Both
are equally binding, but treaties require the concurrence of the Senate to be effective,
while executive agreements do not.
Under international law, there is no difference between treaties and executive
agreements in terms of their binding effects on the contracting states concerned, as
long as the negotiating functionaries have remained within their powers.

4. Non-Binding on third states; exceptions Treaties have to be transformed in order to be part of Philippine law. A treaty is
A treaty does not create either obligations or rights for a third State without “transformed” when it is ratified by the Senate (Sec. 21, Art. VII, 1987 Constitution).
its consent (Art. 34, VCLT). After ratification, a treaty shall be deemed as if legislated by our legislature.
XPN:
a. When the third party accepts a provision establishing an obligation for that The Department of Foreign Affairs has the power to determine whether an
third party. (Art. 35, VCLT) international agreement is a treaty or an executive agreement (Sec. 9, E.O. 459).
b. When the third party accepts a right provided for and exercises such right in
accordance with the conditions established in the treaty. (Art. 36, VCLT) When there is Conflict between a Treaty and Municipal Law

5. Non-retroactivity- Unless a different intention appears from the treaty or is
otherwise established, its provisions do not bind a party in relation to any act
or fact which took place or any situation which ceased to exist before the
date of the entry into force of the treaty with respect to that party(Art. 28,
VCLT).
The doctrine of incorporation is applied whenever municipal tribunals are
confronted with situations in which there appears to be a conflict between a rule of
international law and the provisions of the constitution or statute of the local state.
Efforts must be done to give effect to both since it is to be presumed that municipal
law was enacted with proper regard for the generally accepted principles of
international law in observance of the Incorporation Clause.

Invalid Treaties- A treaty is invalid: In a situation, however, where the conflict is irreconcilable and a choice has to be
made between a rule of international law and municipal law, jurisprudence dictates
1. If consent was given in violation of provisions of internal law regarding that municipal law should be upheld by the municipal courts.
competence to conclude treaties, provided that:
a. The violation is manifest; and The fact that international law has been made part of the law of the land does
b. It concerned a rule of fundamental importance (Art. 46, VCLT). not pertain to or imply the primacy of international law over national or
2. If the representative consented in violation of specific restrictions on municipal law in the municipal sphere.
authority, provided the restriction was notified to the other negotiating The doctrine of incorporation, as applied in most countries, decrees that rules of
states prior to the representative expressing such consent (Art. 47, VCLT) international law are given equal standing with, but are not superior to, national
3. Error of fact or situation, provided that: legislative enactments. Accordingly, the principle lex posterior derogat priori takes
a. Such formed an essential basis of a stae’s consent to be bound; effect and a treaty may repeal a statute and a statute may repeal a treaty.
b. The State did not contribute by its own conduct to the error; and
c. The circumstances were not such as to put that State on notice of a possible In states where the Constitution is the highest law of the land, such as the Republic of
error (Art. 48, VCLT). the Philippines, both statutes and treaties may be invalidated if they are in conflict
with the constitution.

6
DOCTRINE OF STATE RESPONSIBILITY
General Principles (Articles of State Responsibility (ASR))
Every internationally wrongful act of a state entails the international
responsibility of that State (Art. 1, ASR).
Elements of an Internationally Wrongful Act: There is an internationally
wrongful act of a state when the conduct consisting of an action or omission:
1. Is attributable to the State under international law; and
2. Constitutes a breach of an international obligation of a State (Art.
2, ASR).
The characterization of an act of a state as internationally wrongful is governed
by international law. Such characterization is not affected by the
characterization of the same act as lawful by internal law (Art. 4, ASR).
Theory of Objective or Strict Liability- With respect to state responsibility,
the theory provides that fault is unnecessary for State responsibility to be
incurred.
ATTRIBUTION
Attribution or imputability is a legal construct whereby an internationally
unlawful conduct ofa State organ acting in that capacity is regarded as the
conduct of the State itself, making that State responsible for it as an
internationally wrongful act.
It proceeds from the theory that as an abstract entity, the State can physically
act only through individuals or groups of individuals performing "acts of the
State" on its behalf.
1. Conduct of organs of a state(Article 4, ASR)- The conduct of
any State organ shall be considered an act of that State whether
the organ exercises legislative, executive, judicial or any other
functions, whatever position it holds in the organization of the
State.
An organ includes any person or entity which has that status in
accordance with the internal law of the State.
2. Conduct of persons or entities exercising elements of
governmental authority (Art. 5, ASR)- The conduct of a person
or entity (not falling under a) but is empowered by the law of that
State to exercise elements of the governmental authority shall be
considered an act of the State, provided the person or entity is
acting in that capacity.
3. Conduct of organs placed at the disposal of a State by another
State (Art. 6, ASR)- An act of the former State under international
law if the organ is acting in the exercise of elements of the
governmental authority of the State at whose disposal it is placed.
4. Excess of authority or contravention of instructions (Art. 7,
ASR)
If the organ, person, or entity acts in that capacity, even if it
exceeds its authority orcontravenes instructions. Unauthorized or
Ultra Vires acts.
5. Conduct directed or controlled by a State (Art. 8, ASR)- If the
person or group of persons is in fact acting on the instructions of,
or under the direction or control of, that State in carrying out the
conduct.
Effective Control- Under the law on state responsibility, a State
is responsible only for the acts of its organs and over non-state
actors over which it exercised effective control. This means that
it should have given instructions or provided the direction
pursuant to which the perpetrators of the wrongful act acted.
Overall Control- The “over-all control test” was only relevant
in so far as the question of characterization of the Yugoslav
conflict as an international armed conflict, or whether or not the
conflict has been internationalized; it is not relevant to the task of
determining whether a state is responsible for the acts of certain
non-state organs involved in that same international armed
conflict.
6. Conduct carried out in the absence or default of the official
authorities(Article 9, ASR)
7. Conduct of an insurrectional or other movement(Article10,
ASR)
8. Conduct acknowledged and adopted by a State as its
own(Article11, ASR)
7
CIRCUMSTANCES PRECLUDING WRONGFULNESS (Defenses)
Although a State which fails to act in conformity with an international obligation will
typically be subject to international responsibility for the wrongful act, the State may
be excused from performance of an international obligation if circumstances
precluding wrongfulness are present.
1. Consent (Article 20, ASR)- Valid consent by a State to the commission
of a given act by another State precludes the wrongfulness of that act in
relation to the former State to the extent that the act remains within the
limits of that consent.
2. Self-defense (Article 21, ASR)- If the act constitutes a lawful measure
of self- defense taken in conformity with the Charter of the United
Nations.
3. Countermeasures(Article 22, ASR)- If and to the extent that the act
constitutes a countermeasure taken against the latter State in
accordance with the ASR.
4. Force Majeure(Article 23, ASR)
GR: If the act is due to force majeure, that is the occurrence of an
irresistible force or of an unforeseen event, beyond the control of the
State, making it materially impossible in the circumstances to perform
the obligation.
XPN: The above rule does not apply if:
a. The situation of force majeure is due, eitheralone or in
combination with other factors,to the conduct of the State
invoking it; or
b. The State has assumed the risk of thatsituation occurring.
5. Distress (Article 24, ASR)
GR: If the author of the act in question has no other reasonable way, in
a situation of distress, of saving the author’s life or the lives of other
persons entrusted to the author’s care.
XPNs:
a. The situation of distress is due, either alone or in combination
with other factors, to the conduct of the State invoking it; or
b. The act in question is likely to create a comparable or greater
peril.
6. Necessity(Article 25, ASR)
Elements
a. It is the only way for the State to safeguard an essential interest
against a grave and imminent peril; and
b. It does not seriously impair an essential interest of the State or
States towards which the obligation exists, or of the
international community as a whole.
Q: State A and State B, two sovereign states, enter into a 10-year mutual defense
treaty. After five years, State A finds that the more progressive State B did not go to
the aid of State A when it was threatened by its strong neighbor State C. State B
reasoned that it had to be prudent and deliberate in reacting to State C because of their
existing trade treaties. a. May State A now unilaterally withdraw from its mutual
defense treaty with State B? Explain your answer. b. Are the principles of pacta sunt
servanda and rebus sic stantibus relevant in the treaty relations between State A and
State B? What about in the treaty relations between State B and State C? Explain your
answer. (2017 BAR)
A:
a. State A may unilaterally withdraw from the mutual defense treaty, State B
committed a material breach of the treaty by failing to come to the aid of State A.
(Art. 60 of the Vienna Convention on the Law of Treaties; Kolb, The Law of Treaties,
p. 220; Aust, Modern Treaty Law and Practice, pp. 236-237)
b. Yes. Pacta sunt servanda was what bound State A and State B to comply with their
obligations under their mutual defense treaty, despite the existing trade agreements
between State B and State C. Article 62 of the Vienna Convention on the Law of
Treaties, which enunciates the doctrine of rebus sic stantibus, on the other hand, can
be invoked by State B as the reason why it did not comply with its mutual defense
treaty. Treaty is concluded with the implied condition that it is intended to be binding
only as long as there is no vital change in the circumstances. To State B, compliance
with the treaty would jeopardize its vital trade development, Because of this
unforeseen change of circumstances combined with State B’s noncompliance with its
obligations under the treaty in good faith, State A may now opt to unilaterally
withdraw from the treaty.
Q: The President signs an agreement with his counterpart in another country involving
reciprocity in the treatment of each country's nationals residing in the other's territory.
However, he does not submit the agreement to the Senate for concurrence. Sec. 21,
Art. VII of the Constitution provides that no treaty or international agreement shall be
valid and effective without such concurrence. Is the agreement signed by the President
effective despite the lack of Senate concurrence? Explain your answer. (2017 BAR)
A: YES, the agreement is effective. Being in the nature of an executive agreement, it
does not require Senate concurrence for its efficacy (Bayan Muna v. Romulo G.R. No.
159618)
Q: An Executive Agreement was executed between the Philippines and a neighboring
State. The Senate of the Philippines took it upon itself to procure a certified true copy
of the Executive Agreement and, after deliberating on it, declared, by a unanimous
vote, that the agreement was both unwise and against the best interest of the country.
Is the Executive Agreement binding (a) from the standpoint of Philippine law and (b)
from the standpoint of international law? Explain. (2003 BAR)
A:
a. From the standpoint of Philippine law, the Executive Agreement is binding.
According to Commissioner of Customs v. Eastern Sea Trading, 3 SCRA 351 [1961],
the President can enter into an Executive Agreement without the necessity of
concurrence by the Senate.
b. The Executive Agreement is also binding from the standpoint of international law.
As held in Bayan v. Zamora, 342 SCRA 449 [2000], in international law executive
agreements are equally binding as treaties upon the States who are parties to them.
Additionally, under Article 2(1)(a) of the Vienna Convention on the Law of Treaties,
whatever may be the designation of a written agreement between States, whether it is
indicated as a Treaty, Convention or Executive Agreement, is not legally significant.
Still it is considered a treaty and governed by the international law of treaties.
Q: May a treaty violate international law? If your answer is in the affirmative, explain
when such may happen. If your answer is in the negative, explain why. (2008 BAR)
A: YES, a treaty may violate international law if it conflicts with a peremptory norm
or jus cogens of international law. Jus cogens norm is defined as a norm of general
international law accepted and recognized by the international community of states as
a whole as a norm from which no derogation is permitted and which can be modified
only by a subsequent norm of general international law having the same character.
Article 53 of the Vienna Convention of the Law of Treaties provides that a treaty is
void if at the time of its conclusion, it conflicts with jus cogens norm. Moreover,
under Article 54 of this convention, if a new peremptory norm of general international
law emerges, any existing treaty which is in conflict with that norm becomes void and
terminates.
Q: The President alone without the concurrence of the Senate abrogated a treaty.
Assume that the other country- party to the treaty is agreeable to the abrogation
provided it complies with the Philippine Constitution. If a case involving the validity
of the treaty abrogation is brought to the Supreme Court, how should it be resolved?
(2009 BAR)
A: The Supreme Court should dismiss the case. The jurisdiction of the Supreme Court
(or of all lower courts) over a treaty is only with respect to questions of its
constitutionality or validity (See Art. VIII, sec. 5 (2) (a) of 1987 Constitution). In
other words, the question should involve the constitutionality of a treaty or its validity
in relation to a statute (Gonzales v. Henchanova, 9 SCRA 230 [1963]). It does not
pertain to the termination (or abrogation) of a treaty. The authority of the Senate over
treaties is limited to concurrence (Art. VIII, sec. 21 of 1987 Constitution). There being
no express constitutional provision regulating the termination (or abrogation) of
treaties, it is presumed that the power of the President over treaty agreements and over
foreign relations includes the authority to “abrogate” (or more properly referred as
“terminate”) treaties. The termination of the treaty by the President without the
concurrence of the Senate is not subject to constitutional attack, there being no Senate
authority to that effect. The Philippines is a party to the Vienna Convention on the
Law of Treaties. Hence, the said Convention thus becoming part of Philippine Law
governs the act of the President in terminating (or abrogating) the treaty. Article 54 of
this Convention provides that a treaty may be terminated “at any time by consent of
all the parties.” Apparently, the treaty in question is a bilateral treaty in which the
other state is agreeable to its termination. Article 67 of the Convention adds the
formal requirement that the termination must be in an instrument communicated to the
other party signed by the Head of State or of Government or by the Minister of
Foreign Affairs.
ALTERNATIVE ANSWER: The Supreme Court should dismiss the case. The case
involved is a political question, because it involves the authority of the President in
the conduct of foreign relations and the extent to which the Senate is authorized to
negate the action of the President. Since Section 21, Article VII of the Constitution is
silent as to the participation of the Senate in the abrogation of a treaty, the question
may be answered in different ways and should be decided by political standards rather
than judicially manageable standards (Goldwater v. Carter, 444 U.S. 996 [1979J).
ALTERNATIVE ANSWER: While it is the President who negotiates and ratifies
treaties and other international agreements, it must be underscored that when the same
has been concurred by the qualified majority of the Senate, they become part of the
law of the land. Accordingly, it is submitted that the President alone cannot
unilaterally abrogate a treaty without Congressional authorization, in the same way
that she would have no authority to repeal a law. Further, even as what the
Constitution requires in the concurrence of the Senate in treaties and international
agreements entered into, not the abrogation of the same, the same should not also be
construed as empowering the President to simply render nugatory a treaty that has
already acquired the imprimatur of Political Law 134 the Senate (See Goldwater v.
Carter, 444U.S. 996 [1979J, cited in Be mas, An Introduction to Public International
Law [2002] at 53).
Q: President Black of the Republic of Pasensya (RP) had a telephone conversation
with President Blue of the People’s Republic of Conquerors (PRC). In that
conversation, both leaders agreed that they will both pull- out all their vessels, civilian
or otherwise, sea crafts and other ships from the hotly disputed Kalmado Shoal area
within eight (8) days in order to de-escalate the situation. After eight days, all RP
ships and vessels have left the area. However, several military and civilian ships
carrying the PRC flag remained in the area and began construction of a dock that
could provide fuel and other supplies to vessels passing by. a. Assuming that
President Black and President Blue both had full capacity to represent their states and
negotiate with each other under their respective systems of government, and further
assuming that both leaders acknowledge the existence of the conversation, is the
verbal agreement via telephone binding under international law? Explain. b.
Assuming the answer to (a.) is in affirmative, does that agreement constitute a Treaty
under the 1969 Vienna Convention on the Law on Treaties? (2012 BAR)
A: a. The verbal agreement by telephone is binding between the parties on the basis of
customary international law. (Aust Modern Treaty Law and Practice, p. 7) b. The
verbal agreement does not constitute a treaty under Vienna Convention on the Law of
Treaties. Article 3 requires that for an international agreement to be a treaty, it must
be in written form.
8
Q: In a raid conducted by rebels in a Cambodian town, an American businessman who
has been a long-time resident of the place was caught by the rebels and robbed of his
cash and other valuable personal belongings. Within minutes, two truckloads of
government troops arrived prompting the rebels to withdraw. Before fleeing they shot
the American causing him physical injuries. Government troopers immediately
launched pursuit operations and killed several rebels. No cash or other valuable
property taken from the American businessman was recovered. In an action for
indemnity filed by the US Government in behalf of the businessman for injuries and
losses in cash and property, the Cambodian government contended that under
International Law it was not responsible for the acts of the rebels. a. Is the contention
of the Cambodian government correct? Explain. b. Suppose the rebellion is successful
and a new government gains control of the entire State, replacing the lawful
government that was toppled, may the new government be held responsible for the
injuries or losses suffered by the American businessman? Explain. (1995 BAR)
A:
a. YES, the contention of the Cambodian Government is correct. Unless it clearly
appears that the government has failed to use promptly and with appropriate force its
constituted authority it cannot be held responsible for the acts of rebels, for the rebels
are not its agents and their acts were done without its volition. In this case,
government troopers immediately pursued the rebels and killed several of them.
b. The new government may be held responsible if it succeeds in overthrowing the
government. Victorious rebel movements are responsible for the illegal acts of their
forces during the course of the rebellion. The acts of the rebels are imputable to them
when they assumed as duly constituted authorities of the state.
Q: A, a British photojournalist, was covering the violent protests of the Thai Red-
Shirts Movement in Bangkok. Despite warnings given by the Thai Prime Minister to
foreigners, especially journalists, A moved around the Thai capital. In the course of
his coverage, he was killed with a stray bullet which was later identified as having
come from the ranks of the Red-Shirts. The wife of A sought relief from Thai
authorities but was refused assistance.
a. Is there state responsibility on the part of Thailand? b. What is the appropriate
remedy available to the victim’s family under international law?
A:
a. There is no state responsibility on the part of Thailand. The wrongful act in
question is an act of private individuals and not of an organ of the government
or a state official. Hence, it is not attributable to Thailand as its wrongful act for
the purpose of state responsibility.
b. The appropriate remedy available to the family of A is to seek diplomatic
protection from Great Britain to press a claim for reparation (Brownlie,
Principles of Public of International Law, 7th ed., pp.460 and 477-478).
However, in order that the claim will be allowable under customary
international law, the family of A must first exhaust the legal remedies available
in Thailand (Brownlie, Principles of Public of International Law, 7th ed., p.
492).
Territoriality principle
Q: Police Officer Henry Magiting of the Narcotics Section of the Western Police
District applied for a search warrant in the Regional Trial Court of Manila for
violation of Section 11, Article II (Possession of Prohibited Drugs) of Republic Act
(R.A.) No. 9165 (Comprehensive Dangerous Drugs Act of 2002) for the search and
seizure of heroin in the cabin of the Captain of the MSS Seastar, a foreign-registered
vessel which was moored at the South Harbor, Manila, its port of destination. Based
on the affidavits of the applicant's witnesses who were crew members of the vessel,
they saw a box containing ten (10) kilograms of heroin under the bed in the Captain's
cabin. The RTC found probable cause for the issuance of a search warrant;
nevertheless, it denied the application on the ground that Philippine courts have no
criminal jurisdiction over violations of R.A. No. 9165 committed on foreign-
registered vessels found in Philippine waters. Is the ruling of the court correct?
Support your answer with reasons. (2005 BAR)
A: The RTC may assert its jurisdiction over the case by invoking the territorial
principle, which provides that crimes committed within a state's territorial boundaries
and persons within that territory, either permanently or temporarily, are subject to the
application of local law. Jurisdiction may also be asserted on the basis of the
universality principle, which confers upon all states the right to exercise jurisdiction
over delicta juris gentium or international crimes, such as the international traffic
narcotics. The possession of 10 kilos of heroin constitutes commercial quantity and
therefore qualifies as trafficking of narcotics. Consequently, the denial of the search
warrant should have been anchored on the failure of the court to conduct personal
examination of the witnesses to the crime in order to establish probable cause, as
required by Sections 3 and 4 of Rule 126. In any event, there is no showing that the
requisite quantum of probable cause was established by mere reference to the
affidavits and other documentary evidence presented.
Q: William, a private American citizen, a university graduate and frequent visitor to
the Philippines, was inside the U.S. embassy when he got into a heated argument with
a private Filipino citizen. Then, in front of many shocked witnesses, he killed the
person he was arguing with. The police came, and brought him to the nearest police
station. Upon reaching the station, the police investigator, in halting English, informed
William of his Miranda rights, and assigned him an independent local counsel.
William refused the services of the lawyer, and insisted that he be assisted by a
Filipino lawyer currently based in the U.S. The request was denied, and the counsel
assigned by the police stayed for the duration of the investigation. William protested
his arrest. He argued that since the incident took place inside the U.S. embassy,
Philippine courts have no jurisdiction because the U.S. embassy grounds are not part
of Philippine territory; thus, technically, no crime under Philippine law was
committed. Is William correct? Explain your answer. (2009 BAR)
A: William is not correct. The premises occupied by the United States Embassy do
not constitute territory of the United Stated but of the Philippines. Crimes committed
within them are subject to the territorial jurisdiction of the Philippines. Since William
has no diplomatic immunity, the Philippines can prosecute him if it acquires custody
over him (Reagan v. Commissioner of Internal Revenue, 30 SCRA 968).
Q: If William applies for bail, claiming that he is entitled thereto under the
"international standard of justice" and that he comes from a U.S. State that has REFUGEES
outlawed capital punishment, should William be granted bail as a matter of right?
Reasons. (2009 BAR)
A: William should not be granted bail as a matter of right. He is subject to Philippine
criminal jurisdiction, therefore, his right to bail must be determined on the basis of
Definition- A person outside the country of his nationality owing to a well-
Section 13, Article III of the Constitution. Conflicts of jurisdiction founded fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group, or political opinion, and is unable
Q: Under its Statute, give two limitations on the jurisdiction of the International Court or, owing to such fear, is unwilling toavail himself of the protection of that
of Justice? (1999 BAR) country; or who, not having a nationality and being outside the country of his
A: The following are the limitations on the jurisdiction of the International Court of former habitual residence as a result of such events, is unable or, owing to such
Justice under its Statute: a. Only states may be parties in cases before it. (Article 34) fear, is unwilling to return to it. (Article 1A (1), 1951 Convention).
b. The consent of the parties is needed for the court to acquire jurisdiction over a case.
(Article 36) General Obligations of Refugees- Every refugee has duties to the country in
which he finds himself, which require in particular that he conform to its laws
Q: Compare and contrast the jurisdiction of the International Criminal Court and and regulations as well as to measures taken for the maintenance of public
International Court of Justice. (2010 BAR)
order. (Article 2, 1951 Convention)
A:
a. The jurisdiction of the International Court of Justice (ICJ) pertains to international
responsibility in the concept of civil liability, while that of the International Criminal
Court (ICC) pertains to criminal liability. Non-Discrimination- States shall apply the provisions of this Convention to
b. While states are the subject of law in international responsibility under the refugees without discrimination as to race, religion, or country of origin.
jurisdiction of the International Court of Justice, the criminal liability within the (Article 3, 1951 Convention)
jurisdiction of the International Criminal Court pertains to individual natural person.
[Article 34(i) of the Statute of the International Court of Justice; Articles 25 and 27of
the Statute of the International Criminal Court] Nationality and statelessness Personal Status- The personal status of a refugee shall be governed by the law
of the country of his domicile or, if he has no domicile, by the law of the
Q: country of his residence. (Article 12, 1951 Convention)
a. Who are stateless persons under International Law?
b. What are the consequences of statelessness?
Rights previously acquired by a refugee and dependent on personal status,
c. Is a stateless person entirely without right, protection or recourse under the Law of
Nations? Explain.
more particularly rights attaching to marriage, shall be respected by a
d. What measures, if any, has International Law taken to prevent statelessness? (1995 Contracting State, subject to compliance, if this be necessary, with the
BAR) formalities required by the law of that State, provided that the right in question
is one which would have been recognized by the law of that State had he not
A: become a refugee. (Article 12, 1951 Convention)
a. STATELESS PERSONS are those who are not considered as nationals by
any State under the operation of its laws.
b. The consequences of statelessness are the following: i. No State can intervene Rights of a Refugee- Among those enumerated in the 1951 Convention are:
or complain in behalf of a stateless person for an international delinquency
committed by another State in inflicting injury upon him. ii. He cannot be 1. Non-discrimination of application (for refugee status) based on
expelled by the State if he is lawfully in its territory except on grounds of race, religion, or country of origin (Art. 3)
national security or public order. iii. He cannot avail himself of the protection
2. To be treated similar to nationals with respect to the following:
and benefits of citizenship like securing for himself a passport or visa and
personal documents.
a. Right to Religion (Art. 4)
c. NO. Under the Convention in Relation to the Status of Stateless Person, the b. Rationing system (when supplies are short) (Art.
contracting states agreed to accord to stateless persons within their territories 20)
treatment at least as favorable as that accorded to their nationals with respect to c. Elementary education (Art. 22(1))
freedom of religion, access to the courts, rationing of products in short supply, d. Public relief (Art. 23)
elementary education, public relief and assistance, labor legislation and social e. Labour legislation and Social Security (Art. 24 (1))
security. They also agreed to accord to them treatment not less favorable than f. Fiscal charges (Art. 29)
that accorded to aliens generally in the same circumstances. The Convention 3. To be accorded the same treatment as an alien or foreign national
also provides for the issuance of identity papers and travel documents to with respect to the following:
stateless person. a. To have his personal status respected
d. In the Convention on the Conflict of Nationality Laws of 1930, the b. To acquire movable and immovable property
contracting states agreed to accord nationality to persons born in their territory
c. Protection of industrial property and rights in
who would otherwise be stateless. The Convention on the Reduction of
Statelessness of 1961 provides that if the law of the contracting States results in
literacy, artistic, and scientific works
the loss of nationality as a consequence of marriage or termination of marriage, d. Right of association
such loss must be conditional upon possession or acquisition of another e. Access to courts
nationality. f. Wage-earning employment
g. Self-employment
ALTERNATIVE ANSWER: Under the Convention on the Reduction of Statelessness h. To practice liberal profession
of 1961, a contracting state shall grant its nationality to a person born in its territory i. Housing
who would otherwise be stateless and a contracting state may not deprive a person or j. Education other than elementary
a group of persons of their nationality for racial, ethnic, religious or political grounds . 4. Administrative assistance
5. Freedom of movement
6. To be issued travel documents
Q: Andreas and Aristotle are foreign nationals working with the Asian Development 7. Be permitted to transfer their assets
Bank (ADS) in its headquarters in Manila. Both were charged with criminal acts 8. Sympathetic considerations as regard to the following:
before the local trial courts. Andreas was caught importing illegal drugs into the a. Extension of benefits similar to death benefits or
country as part of his "personal effects" and was thus charged with violation of
social security
Comprehensive Dangerous Drugs Act of 2002. Before the criminal proceedings could
commence, the President had him deported as an undesirable alien. Aristotle was
b. Issuance of travel documents to refugees who are
charged with grave oral defamation for uttering defamatory words against a colleague unable to obtain a travel document from the country
at work. In his defense, Aristotle claimed diplomatic immunity. He presented as proof of their lawful residence
a communication from the Department of Foreign Affairs stating that, pursuant to the c. Permission to transfer assets necessary for their
Agreement between the Philippine Government and the ADS, the bank's officers and resettlement in another country
staff are immune from legal processes with respect to acts performed by them in their 9. To not be expelled
official capacity. Can the President's act of deporting an undesirable alien be subject 10. To not be penalized for illegal entry until their status in the
to judicial review? (2018 BAR) country is regularized or they obtain admission into another
A: The power to deport aliens is an act of State, an act done by or under the authority country.
of the sovereign power. It is a police measure against undesirable aliens whose
continued presence in the country is found to be injurious to the public good and the
domestic tranquility of the people (Rosas v. Montor, G.R. No. 204105, October 14,
2015) An act of State is one done by the sovereign power of a country, or by its
delegate, within the limits of the power vested in him. An act of State cannot be Principle of Non-Refoulment
questioned or made the subject of legal proceedings in a court of law (Black’s Law
Dictionary, 4th ed., 44). With particular reference to Political Law, an act of State is GR: No State shall expel or return (“refouler”) a refugee in any manner
an act done by the political departments of the government and not subject to judicial whatsoever to the frontiers of territories where his life or freedom would be
review. threatened on account of his race, religion, nationality, membership of a
particular social group or political opinion. (Article 33, 1951 Convention)

XPN: The benefit be claimed by a refugee whom there are reasonable grounds
for regarding as a danger to the security of thecountry in which he is, or who,
having been convicted by a final judgment of a particularly serious crime,
constitutes a danger to the community of that country. (Article 33, 1951
Convention)

9
TREATMENT OF ALIEN
EXTRADITION
Extradition is the surrender by one nation to another of an individual accused or
convicted of an offense outside of its own territory, and within the territorial
jurisdiction of the other, which, being competent to try and to punish him,
demands the surrender.
a. FUNDAMENTAL PRINCIPLES
1. The duty to extradite must be based on treaty- It is not part of
customary international law, although the duty to extradite exists
only for some international crimes. Thus, a state must extradite
only when obliged by treaty to do so.
Principle of specialty- A fugitive who is extradited may be tried
only for the crime specified in the request for extradition and
included in the list of offenses in the extradition treaty.
Rule of Double Criminality- The act for which extradition is
sought must be punishable in both the requesting and requested
states.
2. It is a sui generis proceeding- An extradition proceeding is sui
generis. It is not a criminal proceeding which will call into
operation all the rights of an accused as guaranteed by the Bill of
Rights
3. Bail may be granted to the extradite on the basis of clear and
convincing evidence that he is not a flight risk- The potential
extraditee must prove by “clear and convincing evidence” that he
is not a flight risk and will abide with all the orders and processes
of the extradition court.
4. There must be a compliance with procedural due process
b. PROCEDURE
1. A request for extradition is presented through diplomatic
channels to the state of refuge with the necessary papers for
identification.
2. The request is received by the state of refuge.
3. A judicial investigation is conducted by the state of refuge to
ascertain if the crime is covered by the extradition treaty and
if there is a prima facie case against the fugitive according to
its own laws.
4. If there is a prima facie case, a warrant of surrender will be
drawn and the fugitive will be delivered to the state of origin.
The evaluation process partakes the nature of a criminal
investigation, having consequence which will result in
deprivation of liberty of the prospective extradite. A
favorable action in an extradition request exposes a person to
eventual extradition to a foreign country, thus exhibiting the
penal aspect of the process.
Q: The Extradition Treaty between France and the Philippines is silent as to its
applicability with respect to crimes committed prior to its effectivity. a. Can France
demand the extradition of A, a French national residing in the Philippines, for an
offense committed in France prior to the effectivity of the treaty? Explain. b. Can A
contest his extradition on the ground that it violates the ex post facto provision of the
Philippine Constitution? Explain. (1996 BAR)
A:
a. YES, France can ask for the extradition of A for an offense committed in France
before the effectivity of the Extradition Treaty between France and the Philippines. In
Cleugh v. Strakos109 Fed. 330, it was held that an extradition treaty applies to crimes
committed before its effectivity unless the extradition treaty expressly exempts them.
As Whiteman points out, extradition does not define crimes but merely provides a
means by which a State may obtain the return and punishment of persons charged
with or convicted of having committed a crime who fled the jurisdiction of the State
whose law has been violated. It is therefore immaterial whether at the time of the
commission of the crime for which extradition is sought no treaty was in existence. If
at the time extradition is requested there is in force between the requesting and the
requested State a treaty covering the offense on which the request is based, the treaty
is applicable (Whiteman, Digest of International Law, Vol. 6, pp. 753- 754.).
b. NO, A cannot contest his extradition on the ground that it violates the ex post facto
provision of the Constitution. As held in Wright v. Court of Appeals, 235 SCRA 341,
the prohibition against ex post facto laws in Section 22, Article III of the Constitution
applies to penal laws only and does not apply to extradition treaties.
Q: John is a former President of the Republic X, bent on regaining power which he
lost to President Harry in an election. Fully convinced that he was cheated, he set out
to destabilize the government of President Harry by means of a series of protest
actions. His plan was to weaken the government and, when the situation became ripe
for a take- over, to assassinate President Harry. William, on the other hand, is a
believer in human rights and a former follower of President Harry. Noting the
systematic acts of harassment committed by government agents against farmers
protesting the seizure of their lands, laborers complaining of low wages, and students
seeking free tuition, William organized groups which held peaceful rallies in front of
the Presidential Palace to express their grievances. On the eve of the assassination
attempt, John's men were caught by members of the Presidential Security Group.
President Harry went on air threatening to prosecute plotters and dissidents of his
administration. The next day, the government charged John with assassination attempt
and William with inciting to sedition. John fled to Republic A. William, who was in
Republic B attending a lecture on democracy, was advised by his friends to stay in
Republic B. Both Republic A and Republic B have conventional extradition treaties
with Republic X. If Republic X requests the extradition of John and William, can
Republic A deny the request? Why? State your reason fully. (2002 BAR)
A: Republic A can refuse to extradite John, because his offense is a political
offense. John was plotting to take over the government and the plan of John to
assassinate President Harry was part of such plan. However, if the extradition
treaty contains an attentat clause, Republic A can extradite John, because under
the attentat clause, the taking of the life or attempt against the life of a head of
state or that of the members of his family does not constitute a political offense
and is therefore extraditable.
ALTERNATIVE ANSWER: Republic A may or can refuse the request of
extradition of William because he is not in its territory and thus it is not in the
position to deliver him to Republic X. Even if William were in the territorial
jurisdiction of Republic A, he may not be extradited because inciting to
sedition, of which he is charged, constitutes a political offense. It is a standard
provision of extradition treaties, such as the one between Republic A and
Republic X, that political offenses are not extraditable.
ALTERNATIVE ANSWER: Republic B can deny the request of Republic X to
extradite William because his offense was not a political offense. On the basis
of the pre-dominance or proportionality test his acts were not directly connected
to any purely political offense.

c. DISTINGUISHED FROM DEPORTATION
Extradition
Effected at the request of another
State
Based on offenses committed in the
state of origin
Calls for the return of the fugitive to
the requesting state
Deportation
Unilateral Act of the State
Based on causes arising in the local
state
An undesirable alien may be deported
to a state other than his own or his
state of origin.
Q: The Philippines and Australia entered into a Treaty of Extradition concurred in by
the Senate of the Philippines on September 10, 1990. Both governments have notified
each other that the requirements for the entry into force of the Treaty have been
complied with. It took effect in 1990. The Australian government is requesting the
Philippine government to extradite its citizen, Gibson, who has committed in his
country the indictable offense of Obtaining Property by Deception in 1985. The said
offense is among those enumerated as extraditable in the Treaty. For his defense,
Gibson asserts that the retroactive application of the extradition treaty amounts to an
ex post facto law. Rule on Gibson's contention. (2005 BAR)
A: Gibson is incorrect. In Wright v. Court of Appeals, G.R. No.113213 (1994), it was
held that the retroactive application of the Treaty of Extradition does not violate the
prohibition against ex post facto laws, because the Treaty is neither a piece of criminal
legislation nor a criminal procedural statute. It merely provided for the extradition of
persons wanted for offenses already committed at the time the treaty was ratified.

Q: Extradition is the process pursuant to a treaty between two State parties for the
surrender by the requested State to the custody of the requesting State of a fugitive
criminal residing in the former. However, extradition depends on the application of
two principles –the principle of specialty and the dual criminality principle. Explain
these principles. (2017 BAR)
A: The principle of specialty bars the requesting State from prosecuting the extraditee
for any offense other than that for which the extraditee was surrendered. Here, the
extraditee cannot be tried for offenses not included in the list of extraditable offenses
between states. On the other hand, the dual criminality principle is a rule which states
that the crime for which extradition is requested must be a crime in both the
requesting state and state to which the fugitive has fled.
Q: Lawrence is a Filipino computer expert based in Manila who invented a virus that
destroys all the files stored in a computer. Assume that in May 2005, this virus spread
all over the world and caused $50 million in damage to property in the United States,
and that in June 2005, he was criminally charged before the United States courts
under their anti-hacker law, Assume that in July 2005, the Philippines adopted its own
anti-hacker law, to strengthen existing sanctions already provided against damage to
property. The United States has requested the Philippines to extradite him to US
courts under the RP- US Extradition Treaty. Is the Philippines under an obligation to
extradite Lawrence? State the applicable rule and its rationale. (2007 BAR)
A: If there was no anti-hacker law in the Philippines when the United States requested
the extradition of Lawrence, the Philippines is under no obligation to extradite him.
Under the principle of double criminality, extradition is available only when the act is
an offense in both countries (Cruz, International Law, 2003 ed., p. 205; Coquia and
Santiago, International Law and World Organizations, 2005 ed., 342). Double
criminality is intended to ensure each state that it can rely on reciprocal treatment and
that no state will use its processes to surrender a person for conduct which it does not
characterize as criminal. (Bassiouni, International Extradition, 4th ed., p. 467)

10