PIL

Sources of International Law

International v. Domestic Law

Where to find international law

The UN is created by treaty, it is a product of
content of states. The Secretary General is not
a president.
States have to recognize the ICJ.
- unlike local courts, where there is
compulsory jurisdiction over persons.
There is no unifying rule of recognition in
international law
Ex. No constitution
International law is a SET OF PRIMARY
RULES OF OBLIGATIONS
- Consent is the basis of binding effect in
international law, because states cannot be
bound unless they give consent
Customs are basis of international law

Sources of International Law

1. Treaties are international agreements

entered into between states, in writing,
and governed by international law.
- There may be oral agreements
- If the agreement is not governed by
international law, it is not a treaty
proper
- Treaty proper requires concurrence of
Congress, 2/3.
- Loan agreements between states are
still treaties but the only the consent
of the monetary board is required
- FTAA can be entered into by
president
In signing a treaty you need the
Full powers authority a document
which shows that a person is
authorized to enter into a treaty which
will bind the state.

- But the Vienna convention allows

some people so sign treaties without
full powers authority
Ex. President. Prime Minister.
Secretary of State.
In some treaties, like ROME statute
creating the ICJ, the statute requires a
number of member-states to be
effective.
Ex. 6 States.
2. Philippine Constitution
Memorize
a. Article 7 Sec 20 Loan with
concurrence of Monetary Board
- A debt by back scheme is a loan.
SC
b. Article 7 Sec 21 Treaty with 2/3
Senate vote
- Tanada case
- WTO was created by treaty.
- This treaty needed concurrence
by Senate
Determination of treaties
- Content it usually has massive
impact on domestic law. Long Term
Executive Agreements
- Are usually short term and
commercial in character.
- It is determined by the executive
- But in some cases, it is brought
to SC for determination like EDCA.
- If it is a mere implementation
agreement, president alone can
agree to it.
c. Article 8 Sec 4 Constitutionality
of Treaty is heard en banc by SC
d. Article 18 Sec 25 Treaty on new
military bases, troops or facilities

- 2/3 Vote of Senate

- Congress may allow it to go to a
National Referendum
- Concurrence of other States
- In VFA, a letter was given, not an
actual concurrence
- It was stated that the treaty was
considered as a treaty in the U.S, thus,
even if Senate disagreed to it, it was
upheld by SC
- Constitutional
Balikatan exercises
- terms of reference were in relation to
VFA
- It is mere implementation of VFA.
- It can be done through exchange of
notes or by executive agreement
Pimentel
- When president does not submit the
treaty to Senate, can you compel him
by mandamus?
- No
- The can president can sign it.
However it must be distinguished of
ratifying.
- Signing without ratifying it means
the minimum duty of the state is to
refrain from acts that will prejudice the
treaty,
Pharmateutical (Soft Law)
- World Organization which promotes
breast milk and discourages breast
milk substitutes
- Cory Code or Milk Code did not have
the ban
- the DOH then drew it from the World
Health guidelines
- Milk Corps said non-delegability of
legislative power. You cannot draw
from the Milk Code something that is
not there.
- World Organization Rules is not a

treaty. If it was a treaty, pwede sana

yung guidelines ng DOH.
- Because treaties have the force and
effect of international law.
- International Law, soft law, are
merely guidelines
Exchange of Notes
- Notes lang
- But it may take form of international
agreement
Province of North Cotabato
- MOA-AD
- An agreement between the State and
an insurgent group which does not
recognize the constitution of the
Philippines
- Is the agreement a treaty?
MOA-AD is unconstitutional
- MILF wanted a negotiating state
- Associative character in the MOA-AD
(Bangsamoro)
- Unconstitutional because it had the
semblance of equal character
- The agreement is a contract, a sui
generis contract. Governed by lex
pacificatoria (law of peace) -> Which
has the semblance of a treaty.
Bayan Muna v. Romulo (BAR)
- PH signed the Rome Statute and
eventually ratified
- Under Rome statute, any member
state may acquire jurisdiction over
jurisdictional offenses (Genocide,
Warcrimes, Crimes against humanity,
Crimes of Agression)
- The state can prosecute domestically,
any person who is guilty of such
crimes.
- State has primary jurisdiction before
the ICC

In this case, the US wanted a nonsurrender agreement

- Is the non-surrender agreement
violation of Rome Statute?
- SC: it can be reconciled
- RA 9851 complementary to Rome
Statute
- Our Courts are given primary
jurisdiction, even over foreigners.
Ex. US marine, commited crime in
Afghan. Sojourned here.
- He can be prosecuted.
- Does not violate non-surrender
agreement
Deutsche Bank
- Tax treaty with preferential tax rate.
- BIR issued a regulation requiring
registration
- SC: BIR cannot go above the treaty,
there is no procedural restriction in
the treaty. It must automatically be
allowed.
- EDCA almost had all the features of
this kind of treaty.

Reservations

A state is allowed reservations in treaties

But there are treaties where No reservations
are allowed
Reservations must not be incompatible with

How to interpret treaty?

purpose of treaty
Interpret in good faith
Ordinary meaning of word in context
Relate to object and Purpose
Parallel principles in domestic law

1.
2.
3.
4.

Due Process
Pacta cunt servanda
Criminal Responsibility
Rebus sic Stantibus

Jus Cogens
- No treaty that may be entered against jus
cogens
- Jus Cogens are norms recognized and
accepted by the international community
In international law (Rebus Sic Stantibus)
- Mere fundamental change does not result in
termination or suspension of the treaty
Exception:
1. Change is basis of consent
2. AND transformation of obligation
under the treaty
Exception to Exception
1. Treaty establishing territorial
boundaries uti possidetis
2. Fundamental change was brought
about by invoking party (You cannot go
to court with unclean hands)
- But you can always withdraw from treaty
What Prevails between treaties?
- Try to reconcile; if not, latter treaty will
prevail.
What governs between treaty and a domestic
law
a. Constitution and Treaty Constitution.
- But there is a rule in internation law
of fundamental importance, you can
deviate from treaty.
Ex. Tanada v. Angara WTO
- WTO states that there is an exchange
of goods and services
- Some professions are exclusive to
Filipinos

- SC: The constitution is a

fundamental law of the land. The State
may deviate from the treaty.
- Note: State cannot invoke internal
law as justification for failure to comply
with treaty obligation. But in this case,
only limited to domestic, not
Constitution.
b. Treaty v. Domestic Law
- Attempt to reconcile
- If you cannot reconcile, rule on later
in point prevails.
Customs

Evidence of a general practice accepted as law.

These are now codified in treaties.
Ex. Leave high seas free for navigation. It is
accepted since time immemorial.
Ex. Diplomatic immunity.
Ex. Rules of Engagement
Vienna Convention on Diplomatic Immunities
and Privileges
Opinio Juris Customs contains settled
practice and obligatory elements.
Subjective Element When you accept a
norm, it must mean that you accept a legal

UN General Assembly

obligation. Not mere courtesy or fairness.

1 Nation = 1 Vote
General Assembly resolutions may later evolve
to customary principles which may be
codified.
- GR Merely recommendatory
Resolution are binding on

Security Council

1. Admission of new members

2. Budget
3. Apportionment
Most powerful organ

If it issues a resolution which pertains to

international peace and security
- It is an obligatory resolution
- It has sanctions for failure to comply
Persistent Objector Some states who
persistently object to UN resolution may not
General Principles of Law derived from
Municipal law
Domestic Courts

be bound by the resolution

Ex. Reparation. Criminal Responsibility. Good
Faith. Prescription. Administrative law.
Indemnity. Expropriation. Estoppel.
Filartiga v. Pena-Irala
- US Alien Tort Law

Doctrine of Incorporation
Mijares

Enforcement of foreign judgment is a

internationally accepted principle of

Theory on Municipal and Intenrational Law

international law.
Even if voided locally, it remains valid in
international law.

Persons in International Law

States

Elements
1.
2.
3.
4.

Permanent Population
Government
Defined Territory
Capacity to Contract

Is Vatican bound by UN convention on child

sexual abuse?
- The Vatican is a State sui generis
Recognition Theory
De Facto Government

- Without recognition, you are not a State.

Can a defacto government produce legal
effects? Yes
Belligerent Occupancy
- The actions of belligerent occupant remain
valid
- Political laws are suspended but civil laws
remain
- In Japanase-Fil Era, divorce was legal, and

Mandate-System or Trust Territories

thus it remains.
Colonies and certain territories lost in the
WWI by defeated enemy powers (Germany and
Turkey) were placed under tutelage with
implied right to self-determination.

Belligerent Groups

Kapag Trusteeship WWII yan.

Are they bound by principles of international
law? Yes in a limited sense

International Organizations

Only humanitarian laws

1. UN
- International Person
- Capacity of UN to sue for damage on
behalf of an agent is allowed
- The UN however is not a state itself
2. European Communities
- It has a separate and distinct
personality separate from its members
- It can sue and be sued
- It has its currency, Euro
- Its like one big state
3. Tribunals
- ICC
- Other international criminal
- All principles in criminal law may be
invoked in the ICC
4. Corporations
- May a transnational company be
granted access to an international

Remedies

tribunal? Yes.
- As long as the treaty allows it.
State v. State
- International Court of Justice
- Subject to the condition that both states
recognize the compulsory jurisdiction of the
ICJ
Transnational company v. State
- Arbitration Body
- In Contest of Europe, European court of
justice. By express provision in thr European

Union
State to State about free exchange of goods
and services
- Under GAT-WTO
- There is an exclusive settlement body
Dispute Settlment Body (DSB)
About the Seas (State to State)
- UNCLOS
- International Tribunal for the Law of the
Seas
- EH bakit south china sea, permanent court
of arbitration? It is allowed. It is another
venue for similar cases.
State v. Non-state entities (Rebel Groups.
Context is armed conflicts)
- Can be ICJ
- If it involves the Commanders or persons of
the rebel groups, once it is an individual,
under ICC na.
- ICC for jurisdictional offenses
State-State on Human Rights
- Look for specific human rights mechanism
or treaty

Note: Ex. EJK cases

- Exhaust local remedies
- Then go to the Court which is provided in
the treaty

Jurisdiction

Jurisdiction over territory

What is jurisdiction under international law?

The capacity to enforce laws or rules and
prescribe law and rules.
To occupy, the land must be Terra Nullius.
Or you can declare a community as part of
your administrative structure.
Modes of acquiring
1. Occupation

2. Conquest (allowed before)

3. Cession and
4. Accretion
Test of Title under international Continuous
display of PEACEFUL POSSESSION over a
particular area.
Today
- Saba is under the effective jurisdiction of
Malaysia
Spratley

New Baselines law

- RA 9522
- KIG and Scarborough Shoal as regime of
islands
- A cluster outside the main fraim of the
Archipelago where you cannot necessarily
draw 100 state baselines without violating
unclos.
- 9522 is Constitutional as declared in
Magallona v. Executive Secretary
- But 9522 is not about land claims, it is
about Maritime Zones

Jurisdiction Over Air-Space

- Basis is Paris Convention
Territorial Waters
In internal waters, there is absolute
jurisdiction.
- You have absolute right to impose your
criminal and civil laws
UNCLOS
Principle of Right of Innocent Passage over

Territorial Waters
- Innocent Passage applies to territorial
waters, archipelagic waters, and navigational
ceilings
- It was then extended to international
straights
- Continental Shelf

Internal Waters Absolute

External Waters- Almost Absolute
High Seas None

Jurisdiction over persons and economic

activity

Exclusive Economic Zone

- Exclusive Right to fishery
Theories to Remember (Familiarize for Answer
support)
1. Nationality Civil law follows national
wherever he/she may be
2. Passive Personality punish aliens
abroad who injures ones citizen
- Ex. OFWs
3. Security Principle punish aliens for acts
v. a States security, independence and
territorial integrity
- Ex. Terrorism
4. Universality e.g Piracy, crimes against
humanity
5. Objective territoriality elements of crime
occurred in 2 states
Ex. Binaril mo from Canda, patay yung
nasa USA.

Criminal Jurisdiction
UNCLOS
1. A97 - Master of the ship may only be
sued in his FLAG state or State where
such person is a national
Eichman
- Serious crimes against international law
- Universal authority to try persons found
outside of the place of the commission of the
crime

Piracy is a crime against the whole world PP

v. Tulin
- Where you can enforce your law outside
Extradition

Philippine Waters.
In Civil Law countries, the basis in
Nationality.
There is no duty to extradite under
international law.
- The basis is always a treaty.
Is the crime listed?
Exceptions
1. Even if there is a treaty, if crime is one
with political complexion, this is basis to
exempt from somebody to be extradited.
- Because they raise as defense as fleeing
due to politics or refugee status.
Ex. Sedition, treason, espionage
Exception to exception
Attentat clause assassination of heads of
States, war crimes, crimes against
humanity, genocide, terrorist acts
Note: If there is no extradition treaty,
states may still extradite by comity, which
is subject to human rights considerations
like non-refoulement
Note: Double-criminality Recent
multilateral treaties define extraditable
offenses based on a minimum level of
punishment
- Double Jeopardy applies
Ex. IRA, flee to US. He alleged that if he
was returned to Belfast, he will not face
appropriate justice.
- US denied the request of Ireland.
PH jurisprudence on extradition in the

Country
SOJ v. Lantion
- Mark Jimenez was charged in the
Florida Court
- US sought extradition of Jimenez
Process of extradition
- Request by a State
- DFA will consider the appropriate action
on the request
- No right to notice and hearing in the
evaluation stage of extradition process
Government of HK v. Olalia
- An extradite is entitled to bail
- There is a modern trend in PIL to
actually respect the rights of individuals,
especially those in detention.
- An extradite is someone similar to one
arrested under a criminal case

Immunity

Considerations to deny Bail

- Whether or not a person is a flight risk
1. State Immunity or Sovereign Immunity
- Respect for co-equal members of
international states
- The State may not be sued without its
consent
- Acts of State theory Acts of State
carried out within its own territory
cannot be challenged in the courts of
other States

Public and Private Immunity

- Most states adhere to RESTRICTIVE
Immunity
- If Jus Imperii Public IMMUNE
-If purely private in character, Juri
gestionis Not immune.
Pinochet
- Operativo Condor
- The alleged criminal acts were in
pursuit of an official act of the State in

resisting dissenters
- Is he immune?
- Only the State of the offender may waive
the immunity of its agent.
- Under existing practice, Pinochet may be
sued
1. In Chile
2. Any other country when Chile waives
immunity
3. Under ICC when jurisdictional offenses
Diplomatic Immunity

are committed
Considered in customary international
law, but nowadays, codified in
International Law conventions.
Remedy of Individual
1. Sue in home State of Diplomat
2. Waiver by the State of nationality of
Diplomat
3. Declare the diplomat persona non
grata
U.S v. Iran ICJ
- Diplomatic Pouch
- Practice is to call diplomatic staff when the
diplomatic pouch is to be opened
Holy See v. Rosario
Indonesia v. Vinzon
- Waiver must be clear and unequivocal
Note:
- High Seas, Seabed, and Outer Space, is

International Human Rights

beyond appropriation of Mankind.

If issue is violation of fundamental human
rights, you refer to the human rights
mechanisms provided in a treaty.
Concept of International Minimum Standard
of Protection and National Treatment
- It has colonial undertones
- If aliens are within your territory, and they
have property or property rights, the aliens

must be protected similar to the protection

extended to the citizens of the state.
- it is meant to protect foreign investors
National Treatment
- The treatment and privileges extended to
citizens must also be extended to foreign
nationals.
Environmental Harm

The State is bound to protect the citizens

of another state from environmental harm
Trail Smelter
- Power plant which injured the citizens of

Environmental Latest decisions

an adjacent state
Standing of Mammals
- Stewards of the Mammals filed the
petition
- Mammals are inanimate, they are not
persons in the context of the law
Note:
- Continuing Mandamus for as long as
you have not accomplished the purpose of
the mandamus, you are continually
bound.
- Inter-generational responsibility

Jurisprudence

Venuya v. Romulo
- Comfort Women case
- Before you seek a remedy from a foreign
national, you must first exhaust local
remedies.
- Only after exhaustion may you seek
state of nationality help
- The subject matter of the claim is the
individual and his property, but the claim
is that of the State. Because in the long
run, it will accrue to the benefit of the
State.
An individual cannot waive his right to be
protected by his national state Calvo
Clause

Resolution of Disputes

1. Use of Force
- But use of force in an AGGRESSIVE
manner is Banned
- Defensive use of force is allowed
Usually, problem is anticipatory selfdefense
Ex. Israel
In peace time, it is called countermeasures
In war, belligerent reprisal

Judicial Processes - ICJ

2.
International Court of Justice
UN members are usually treaty party to ICJ
Members may provide for qualifications
regarding compulsory jurisdiction
Only STATES may be parties to the ICJ
Recognition of compulsory jurisdiction must
be declared by a member, you cannot drag
them before the ICJ
No APPEAL
Concept of newly discovered evidence,
discovery of some fact, or revision of
judgment
- must be done within 6 months from
discovery but not more than 10 years
ICJ may give ADVISORY opinions

International Arbitration
RCBC v. Banco De Oro
- Chairperson of the arbitral committee
served parties with scholarly journal article
- From the International Commercial Court
bulletin
- However it favored one party
- Such party brought the case to court

SC: Exceptional case. Violation of Due

process. Determination of Arbitral committee
UN Charter

was questioned.
Tenor of Charter is highly political in
character
- 5 permanent members, political reasons
It is a legal document but filled with political
considerations
- to promote peace and security,
harmonization of the states

Domestic Jurisdiction Principle

- As far as practicable, internal or domestic
issues must be respected by member states
Some Exceptions
a. Threat to international peace
b. Gross violation of human-rights
c. Continuing violation of international
obligations

Security Council
a.
b.
c.
d.
e.

US
China
France
UK
Russia

- Any member can veto a non-procedural

matter and the matter will not be entertained
anymore
- Double-veto to determine whether an issue
is procedural, the issue may already be killed
before it reaches deliberation in the security
council
Enforcement Action and UN forces
- Security Council
Terrorism
- Terrorists must be given same rights as that
of a prisoner of war

- Humanitarian law principles will apply

Baselines

Determination of baseline
1. Normal Baseline
2. Straight Baseline
- Archipelago are allowed to enclose its

PH v. China Arbitration Case

territory but not beyond 100 nautical miles

9-dash lines. What China wanted
PH wanted a clear delineation of the Seas,
not land.
- Freedom of Navigation
- Affirmation of EEZ and High seas
Claims
1. CH 9-dash line claim has no basis in
international law
- CH has not shown and historic rights
- CH was merely exercising high seas
freedom
- Historical claim of china, if granted, is
against the convention
2. The various maritime features relied
upon by CH as basis to assert EEZ and
continental shelf are rocks and low-tide
elevations; not islands.
3. CH has breach UNCLOS by interfering
with the PH exercise of its rights
4. CH has irreversibly damaged PH islands

Regime of Islands
- An island is a naturally formed area of land,
surrounded by water, which is above water at
high tide.
- Rock which cannot sustain life have no EEZ
- Human habitation is a critical matter
regarding Rock formations
Findings
- CH prohibited access of PH to PH EEZ
- Interfered with exercise of sovereign powers
- Interfered with exercise over petroleum

resources
- China has irreversibly damaged PH EEZ
What is CH penalty if they dont want to
submit to ICJ?
- International public opinion damage lang
- Diplomatic and Moral victory for us daw
HAHA