Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
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by the very nature of membership in the family of nations and (2) limitations imposed by treaty
stipulations.
Concept of Auto-limitation
Reagan v. CIR, G.R. No. L-26379, December 27, 1969: Under the principle of auto-limitation,
any state may by its consent, express or implied, submit to a restriction of its sovereign rights.
There may thus be a curtailment of what otherwise is a plenary power.
G. STATE RESPONSIBILITY
1. Scope of State Responsibility
Read Draft Articles on Responsibility of States for Internationally Wrongful Acts
Article 1: Responsibility of a State for wrongful acts
Article 2: Elements of internationally wrongful act: act is attributable to the State; and it
constitutes a breach of an international obligation of the State.
Attribution: The act of an organ or official of the State is attributed to the State as its own act to
determine state responsibility for a wrongful act.
Objective responsibility: one arising from breach of duty by reason of result alone of the act or
omission as the cause, without regard as to whether there is fault or culpa.
Articles 4, 5, 6, 7, 8, 9, 10(1) and 11: Acts attributable to the State and are considered its own
acts.
2. Legal Consequences of Wrongful Acts
Full reparation: restitution, compensation and satisfaction
Obligation breached continues to exist and performance of obligation subsists.
State must cease the wrongful act and if continues to do so, it must offer assurances and
guarantees not to repeat the same.
3. Acts of Aggression
Read Article 1of U.N. GA Resolution 3314(XXXIX) for Definition;
Read Article 3 for prima facie acts of aggression.
4. Remedies of Parties
Reprisal distinguished from retorsion (Naulilaa Case, 2 RIAA 1102, 1026 (1928) cited in
Magallona, Fundamentals of Public International Law (2005), pp.71-72.
Countermeasures (Air Services Agreement Case, 54 ILR 304, 337 (1979) cited in Magallona,
Fundamentals of Public International Law (2005), p. 73.
4. Belligerency
Two Senses of Belligerency
1. State of War between two or more States
2. Actual Hostilities amounting to Civil War within a State
Requisites of Belligerency:
1. An organized civil government that has control and direction over the armed struggle launched
by the rebels;
2. Occupation of a substantial portion of the state’s territory by an aggressor;
3. Seriousness of the struggle, which must be so widespread thereby leaving no doubt as to the
outcome in case of internal hostilities.
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It is a source of “General International Law.”
Stages in the Adoption of a Treaty:
Negotiation
Execution/Signing
Ratification
Exchange of Instrument/ Deposit of Instrument
Case:
Bayan v Zamora, 342 SCRA 449 [2000]: The Court held: “The Executive Agreement is also
binding from the standpoint of international law. x x x 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.
Anglo Norwegian Fisheries Case, ICJ Reports, 1951, pp. 108, 109: When a State continues to
object to a customary norm at the time when it is yet in the process of formation, by such
persistent objection the norm will not be applicable as against that state.
Asylum Case, ICJ Reports, 1950, p.277: Conduct must not only be constant and uniform usage
but also be the “expression of right appertaining to the State granting the asylum and duty upon
the territorial State.”
Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010: In dismissing the petition, the
Supreme Court said: “The State, therefore, is the sole judge to decide whether its protection will be
granted, to what extent it is granted, and when will it cease. It retains, in this respect, a discretionary power
the exercise of which may be determined by considerations of a political or other nature, unrelated to the
particular case.
The International Law Commission’s (ILC’s) Draft Articles on Diplomatic Protection fully support this
traditional view. They (i) state that "the right of diplomatic protection belongs to or vests in the State,”1(ii)
affirm its discretionary nature by clarifying that diplomatic protection is a "sovereign prerogative" of the
State; and (iii) stress that the state "has the right to exercise diplomatic protection on behalf of a national.
It is under no duty or obligation to do so."
It has been argued, as petitioners argue now, that the State has a duty to protect its nationals and act on
his/her behalf when rights are injured. However, at present, there is no sufficient evidence to establish a
general international obligation for States to exercise diplomatic protection of their own nationals abroad.
Though, perhaps desirable, neither state practice nor opinio juris has evolved in such a direction. If it is a
duty internationally, it is only a moral and not a legal duty, and there is no means of enforcing its
fulfillment.”
Read the text of the original decision for references used by the Supreme Court in the resolution of
the case.
Ladlad v. COMELEC, G.R. No. 190582, April 8, 2010: The Supreme Court said: “Using even
the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated by
various international law professors, are – at best – de lege ferenda – and do not constitute
binding obligations on the Philippines. Indeed, so much of contemporary international law is
characterized by the “soft law” nomenclature, i.e., international law is full of principles that
promote international cooperation, harmony, and respect for human rights, most of which
amount to no more than well-meaning desires, without the support of either State practice or
opinio juris.”
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Norm can be both a treaty rule and a customary norm at the same time.
Nicaragua Case, ICJ Reports, 1986, para 179: ICJ clarifies that even if customary international
norms have been codified or embodied in conventions, this does not mean that they cease to exist
or apply as customary law, even with respect to States which are parties to those conventions.
Read Article 38 of the Vienna Convention on the Law of Treaties.
Norms honoured in international law:
Jus cogens norm: a norm which States cannot derogate or deviate from in their agreements.
Nicaragua Case, ibid.
Examples of jus cogens norm: prohibition against the use of force, law on genocide, the
principle of self-determination, principle of racial non-discrimination, crimes against humanity,
prohibition against slavery and slave trade and piracy, (Brownlie, Principles of Public
International Law (1998), p. 515.
Jus dispositivum norm: a norm which allows States to set aside or modify by agreements.
Obligation erga omnes: an obligation every State “towards the international community as a
whole.” All States have a legal interest in its compliance.
Obligations inter se: an obligation that a State must comply with to a particular State under an
agreement.
Barcelona Traction Case, ICJ Reports, 1970, pp.3, 32:”Such obligations derive, for example in
contemporary international law, from outlawing acts of aggression, genocide, also from
principles and rules concerning the basic rights of the human person, including protection from
slavery and racial discrimination.”
Order of Precedence in the application of rules of norms of international law:
Lex superior derogat inferiori: Rules from one source of law prevail over those derived from
another source.
Lex posterior derogat priori: Later rules prevail from the earlier rules.
Lex specialis derogat generali: Particular or special rules prevail over general rules.
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(a). Discovery and Occupation
(b). Accretion
(2). Derivative Title
(a). Prescription
(b). Cession
(c). Conquest/Subjugation
(3). Other Modes
(a). Dereliction/Abandonment
(b). Erosion
(c). Revolution
(d). Natural Causes
Political and legal results of secession:
The new state does not have to recognize the government of the state from which it broke
The new state has the right to govern its own citizens
The new state can independently enter into treaties
The new state can have membership in organizations that were previously closed to it, as
some international organizations are open only to certain states.
The new state can be a party to an ICJ case
2.2 Sovereignty
Sovereignty in the relations between States signifies independence. Independence in regard to a
portion of the globe is the right toe exercise therein, to the exclusion of other States, the
functions of a State. (Island of Palmas Case, 2 UNRIAA, 1928, 829 at 838-9).
PRINCIPLE OF SOVEREIGN IMMUNITY: a State on account of its status requiring
sovereign equality is not subject to judicial process of another state without its consent.
Two Theories of Sovereign Immunity:
Theory of Absolute Immunity: all acts of a State are immune from judicial process by other
States.
Theory of Restrictive Immunity: acts may be distinguished to determine suability of a State (jure
imperii and jure gestionis)
PRINCIPLES GOVERNING THE PRINCIPLE OF EQUALITY AMONG STATES:
(a): States are juridically equal;
(b) Each State shall enjoy the rights inherent to full sovereignty;
(c) Each State has the duty to respect the personality of other States;
(d) The territorial integrity and political integrity and political independence of the State
are inviolable;
(e) Each State has the right freely to choose and develop its political, social, economic
and cultural systems; and
(f) Each State has the duty to comply fully and in good faith its international obligations
and to live in peace with other States.
State Jurisdiction: competence of the State to prescribe rules of conduct, to enforce its legal
processes and to adjudicate controversies and claims.
Bases for State’s Exercise of Criminal Jurisdiction:
(a) territoriality principle
(b) nationality principle
(c) protective or security principle
(d) universality principle
Extradition of Natural Persons, how executed:
(a) through diplomatic negotiations based on comity or friendly relations between two
States concerned; or (b) by means of an extradition treaty.
FUNDAMENTAL RIGHTS OF STATES [S P E E D]
1. Right to Sovereignty and Independence;
2. Right to Property and Jurisdiction;
3. Right to Existence and Self-Defense
4. Right to Equality
5. Right to Diplomatic Intercourse
2.3. People are those who inhabit the territory from whom the state derives its powers. They are:
(a). the inhabitants of the State
(b). must be numerous enough to be self-sufficing and to defend themselves and small
enough to be easily administered and sustained.
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(c). the aggregate of individuals of both sexes who live together as a community despite
racial or cultural differences
(d). groups of people which cannot comprise a State:
i. Amazons – not of both sexes; cannot perpetuate themselves
ii. Pirates – considered as outside the pale of law, treated as an enemy of all mankind;
“hostis humani generis”
iii. Nomadic tribes -will not constitute a State
2.4. Government: Political structure/organs, through which the will of the State is formulated,
expressed and realized.
Difference between a “state” and a “government”
States, not governments, are the bearers of rights and obligations under international law.
However, how a state governs internally may be relevant to statehood and recognition of
governments
3. Recognition of States
3.1. Theories on nature and effect of recognition
Constitutive Theory: maintains that it is the act of recognition which constitutes or creates the
statues of a State as a subject of public international law and thus gives it a legal personality.
Declaratory Theory: asserts that recognition merely confirms the acceptance of the States of the
status of the entity as a State.
3.2. Functions of Recognition:
First, the determination of statehood is a question of law.
Second, the act of recognition is a condition for the establishment of formal, optional and
bilateral relations including diplomatic relations and the conclusion of treaties.
Three different approaches to recognition of governments by other states:
(a) Traditional approach: States consider four factors in deciding whether to recognize a state:
(1) effectiveness of control
(2) stability and permanence
(3) popular support
(4) ability and willingness to fulfill obligations
(b) ESTRADA DOCTRINE: when a new government comes to power either through
constitutional means or otherwise, its relations with other states remain unchanged.
This was created by the Mexican government, which found that it would be insulting to make
determinations about recognition of governments because it would involve passing judgment on
the internal affairs of other states.
(c) TOBAR DOCTRINE: States will not recognize governments which come into power as a
consequence of a coup or of a revolution against the government, so long as the freely elected
representatives of the people thereof have not constitutionally reorganized the country.
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Nuremberg and Tokyo trials after World War II resulted in the unprecedented spectacle of
individual defendants for acts characterized as violations of the laws of war, crimes against
peace, and crimes against humanity. Recently, under the Nuremberg principle, Serbian leaders
have been persecuted for war crimes and crimes against humanity committed in the former
Yugoslavia. These significant events show that the individual person is now a valid subject of
international law.”
C. INTERNATIONAL ORGANIZATIONS
Although previously the main subject of international law was the State, international law has
evolved in the last century to include other subjects, such as international organizations, in
particular the United Nations
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Security Council Voting Rules
Each member of the SC has 1 vote, but distinction is made between the permanent
and the non-permanent members in the decision of substantive questions.
Yalta Voting Formula
(a. Procedural matters – 9 votes of any of SC members
b. Substantive matters – 9 votes including 5 permanent votes.
No member, permanent or not, is allowed to vote on questions concerning the
pacific settlement of a dispute to which it is a party.
Rule of Great-Power Unanimity: a negative vote by any permanent member on
a non-procedural matter often referred to as “veto”, means rejection of the draft
resolution or proposal, even if it has received 9 affirmative votes.
- Abstention or absence of a member is not regarded as veto
Economic and Social Council (ESC)
Trusteeship Council (TC)
International Court of Justice (ICJ)
Secretariat
2. Subsidiary Organs – those which was created by the Charter itself or which it allows to be
created whenever necessary by the SC or GA.
Little Assembly – Interim Committee created in 1947 for a term of one year and re-
established in 1949 for an indefinite term. Composed of one delegate for each member-
state, it meets when the General Assembly is in recess and assists this body in the
performance of its functions.
Military Staff Committee
Human Rights Commission
3. Specialized Agencies – not part of the UN, but have been brought into close contact with it
because of their purposes and functions, such as:
World Health Organization
International Monetary Fund
Technical Assistance Board
UNICEF
UNDP
UN High Commissioner for Refugees
FAO
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(b). by virtue of a jurisdictional clause, i.e., typically, when they are parties to a treaty
containing a provision whereby, in the event of a disagreement over its interpretation or
application, one of them may refer the dispute to the Court. Several hundred treaties or
conventions contain a clause to such effect; or
(c). through the reciprocal effect of declarations made by them under the Statute whereby
each has accepted the jurisdiction of the Court as compulsory in the event of a dispute
with another State having made a similar declaration. The declarations of 65 States are at
present in force, a number of them having been made subject to the exclusion of certain
categories of dispute.
4. Composition, Term of Office, Voting Rules and Inhibitions of Judges
The ICJ is composed of 15 judges.
Each judge serves a term of 9 years, staggered at three yea intervals by dividing the judges first
elected into three equal groups and assigning them by lottery terms of three, six and nine years
respectively. Immediate re-election is allowed. The President and the Vice President elected by
the Court for three years may also be re-elected. Terms of office of 5 of the 15 members shall
expire at the end of every 3 years.
ICJ Voting Rules
All questions before the Court are decided by a majority of the judges present, the quorum being
nine when it is sitting en banc. In case of tie, the President or his substitute shall have cast a vote.
Rule for Inhibition of Judges
No judge may participate in the decision of a case in which he has previously taken part as agent,
counsel or advocate for one of the parties, or as a member of a national or international court, or
of a commission of injury, or in any other capacity.
Nicaragua Case (1986 ICJ Report 14), The International Court of Justice considered the planting
mines by one state within the territorial waters of another as a violation of Art. 2(4) of the UN
Charter. If the support provided by America to rebels of Nova goes beyond the mere giving of
monetary or psychological support but consist in the provision of arms and training, the acts of
America can be considered as indirect aggression amount to another violation of Art. 2(4).
In addition, even if the provision of support is not enough to consider the act a violation of the
non-use of force principle, this is a violation of the principle of non-intervention in customary
international law.
5. What is the relationship of ICJ with the International Criminal Court (ICC)? The ICC is
an independent judicial institution created by the treaty known as Rome Statute with the power
to try and punish individuals for the most serious crimes of international concern, to include the
following:
1. Genocide
2. Crimes against humanity
3. Crimes of aggression, and
4. War crimes.
ACCESSION TO THE ROME STATUTE
CASE:
Pimentel, Jr., v. Office of the Executive Secretary, 462 SCRA 622, 6 July 2005
This is a petition for mandamus to compel the Office of the Executive Secretary and the
Department of Foreign Affairs to transmit the signed copy of the Rome Statute of the
International Criminal Court to the Senate of the Philippines for its concurrence in accordance
with §21, Article VII of the 1987 Constitution. The Court held: “In our system of government,
the President, being the head of state, is regarded as the sole organ and authority in external
relations and is the country’s sole representative with foreign nations (Cortes, The Philippine
Presidency: A Study of Executive Power (1966), p. 187) As the chief architect of foreign policy,
the President acts as the country’s mouthpiece with respect to international affairs. Hence, the
President is vested with the authority to deal with foreign states and governments, extend or
withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the
business of foreign relations [Cruz, Philippine Political Law (1996 Ed.), p. 223] . In the realm of
treaty-making, the President has the sole authority to negotiate with other states.”
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Under Article 103 of the U.N. Charter, if there is a conflict between Charter obligations
and obligations under another treaty, Charter obligations prevail (Thus, the Security
Council can adopt policies that require States to abrogate other treaty obligations)
Under Chapter VII on powers of the Security Council, if it takes action with respect to a
threat to peace, breach of peace or act of aggression under Chapter VII, its action is
binding on all State parties.
2. General Assembly
General Assembly resolutions and recommendations are not binding.
Even if they are not legally binding per se, states sometimes express their
opinions about the status of customary international law through declarations and
recommendations of the General Assembly.
Therefore while they do not have inherently binding force, declarations and
recommendations may constitute opinio juris or become part of state practice.
General Assembly resolutions are binding in the following instances:
The allotment and collection of dues is a mandatory function of the General
Assembly
3. International Court of Justice (ICJ)
Article 94 of UN Charter – UN members are obligated to obey decisions of the ICJ (thus,
ICJ decisions constitute law)
Reparation for Injuries Suffered in the Service of the United Nations – advisory opinion
of the ICJ, 1949, supra.
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D. THE RIGHT OF LEGATION
It is the right to send and receive diplomatic missions. It is strictly not a right since no State can
be compelled to enter into diplomatic relations with another State. Diplomatic relations is
established by mutual consent between two States.
The right of legation is purely consensual. If it wants to, a state may shut itself from the rest of
the world, as Japan did until the close of the 19th century. However, a policy of isolation would
hinder the progress of a state since it would be denying itself of the many benefits available from
the international community.
Active right of legation – send diplomatic representatives
Passive right of legation – receive diplomatic representatives
Resident Missions
G. CONSULAR RELATIONS
1. Letter Patent (Letre d’ Provision)
The appointment of a consul is usually evidenced by a commission, known sometimes as letter
patent or letre d’ provision, issued by the appointing authority of the sending state and
transmitted to the receiving state through diplomatic channels.
Consuls belong to a class of state agents distinct from that of diplomatic officers. They do not
represent their state in its relations with foreign states and are not intermediaries through whom
matters of state are discussed between governments.
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They look mainly after the commercial interest of their own state in the territory of a foreign
state.
They are not clothed with diplomatic character and are not accredited to the government of the
country where they exercised their consular functions; they deal directly with local authorities.
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objection is taken by the receiving State or which are referred to in the international
agreements in force between the sending State and the receiving State.
Cases:
World Health Organization v. Aquino, 48 SCRA 242(1972): The Supreme Court has held that
diplomatic immunity is essentially a political question. Where the plea of diplomatic immunity is
recognized and affirmed by the executive branch, it is the duty of the courts to accept the claim
of immunity.
U.S.A. v. Iran, 74 AJIL 743 (May 24, 1980): The U.S. government instituted action against Iran
before the ICJ due to the takeover by student militants of the US Embassy in Tehran and the
American consulates in Tanriz and Shiraz and the detention of some 50 Americans. While the
ICJ ruled in favor the U.S. government, the enforcement of judgment was difficult. Under the
facts, it was believed that if diplomats were committing acts of espionage, the ultimate action of
the receiving country would only be expulsion of the diplomatic mission.
Fatemi v. United States of America (U.S. Court of Appeals, District of Columbia, 1963):
Fourteen Iranian nationals appealed their cases from convictions for “unlawful entry”. The
claim of immunity involving inviolability of premises must be invoked by a member of the
diplomatic mission.
Ali Kouni v. Nahiba Khari (wife of Kouni) Tunisia, Court of Appeals of Tunis, 1963. Mr.
Kouni served as counselor of the embassy of the Islamic Republic of Mauritania. He filed an
action for divorce against his wife, Nahiba Khari, a Tunisian national. The Tunis court granted
the divorce but it also awarded counterclaim of the wife by way of damages and alimony. On
appeal, Kouni invoked his diplomatic immunity. The Court rejected the appeal since the action
was purely personal in nature.
Areco Leon (minors) Chile, Second Juvenile Court of Santiago, 1955: A warrant of arrest was
issued against Don Alberto Areco Pittaluga for failure to make alimony payments for a period of
four months. He alleged that as First Secretary of the Uruguayan Embassy, he was invested with
immunity. The court ruled that he cannot invoke immunity for his personal acts.
U.S. v. City of Glen Cove, 322 Supp. 149 (1971). The U.S. District Court sustained the immunity
from local taxation of property occupied by the Permanent Representative of the Soviet Union to
the United Nations.
Bergman v. De Sieyes, 170 F. 2d. 360 (1948). The U.S. District of Appeals dismissed the case
where the defendant French diplomat was served with process in a court action in New York
while on his way to Bolivia for his diplomatic post. The Court said that the diplomat must be
granted immunity on the principle that a diplomatic in transitu would be entitled to the same
privilege as diplomatic in situ.
U.S. v. Rosal, 191 F. Supp. 663 (1961). The U.S. District Court denied the claim for immunity of
Rosal, a Guatemalan ambassador to Belgium and the Netherlands who caught with possession
with narcotics while on a personal visit to New York.
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(b) A diplomatic agent shall enjoy immunity from the criminal, civil and administrative
jurisdiction of the receiving state, except in certain cases as, for example, when the civil action
deals with property held by him in a private or proprietary capacity.
(c) The diplomatic premises shall be inviolable, and the agents of the receiving state may not
enter them without the consent of the head of the mission. Such premises, their furnishings and
other property thereon and the means of transportation of the mission shall be immune from
search, requisition, attachment or execution.
(d) The archives and documents of the mission shall be inviolable at any time and wherever they
may be.
(e) The receiving state shall permit and protect free communication on the part of the mission for
all official purposes. In communicating with the government and other missions, and consulates
of the sending state wherever situated, the mission may employ all appropriate means, including
diplomatic couriers and messages in code or cipher. The official correspondence of the mission
shall be inviolable.
(f) Subject to its laws and regulations concerning national security, the receiving state shall
insure to all members of the mission freedom of movement and travel in its territory.
(g) A diplomatic agent is not obliged to give evidence as a witness.
h) A diplomatic agent shall be exempt from all dues and taxes, personal or real, national,
regional, or municipal except in certain specified cases like the imposition of indirect taxes.
(i) The mission and its head shall have the right to use the flag and emblem of the sending state
on the premises of the mission, including the residences of the head of the mission and on his
means of transport.
Dominican Republic v. Pequero, 225 F. Supp. 342 (1963), 58 Am. J. International Law, 1012
(1964). The U.S. District Court ruled that despite the change of government, the receiving state
will continue to recognize the powers of the vice consul until such time the exequatur is
withdrawn.
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What is jus cogens?
Jus cogens is that body of peremptory principles or norms from which no derogation is
permitted; those norms recognized by the international community as a whole as being
fundamental to the maintenance of an international legal order. They also comprise elementary
rules that concern the safeguarding of peace and notably those that prohibit recourse to force or
threat of force.
Jus cogens may, therefore, operate to invalidate a treaty or agreement between states to the
extent of the inconsistency with any such principle. As a peremptory norm, jus cogens is a
fundamental principle of international law that is accepted by the international community
of states as a norm from which no derogation is permitted. Under Article 53 of the Vienna
Convention on the Law of Treaties, any treaty that conflicts with a peremptory norm is void.
Generally included are prohibitions on waging aggressive war, crimes against humanity, war
crimes, maritime piracy, genocide, apartheid, slavery, torture. As an example, international
tribunals have held that it is impermissible for a state to acquire territory through war.
Two elements of jus cogens norms: (1) it is a norm of general international law; and (2) it is
accepted and recognized by the international community of states as a whole as a norm from
which no derogation is permitted.
It exists when a clear and continuous habit of doing certain things develops under the
CONVICTION that it is obligatory and right. This conviction is called “Opinio Juris.”
Cases:
Vinuya, et. al. v. The Honorable Executive Secretary Alberto G. Romulo, et. al., (G.R. No.
162230, April 28. 2010, En Banc [Del Castillo])
The SC clarified that there is yet no consensus on the proper criteria for identifying peremptory
norms. Thus, it held:
“Even the invocation of jus cogens norms and erga omnes obligations will not alter this
analysis. Even if we sidestep the question of whether jus cogens norms existed in 1951,
petitioners have not deigned to show that the crimes committed by the Japanese army
violated jus cogens prohibitions at the time the Treaty of Peace was signed, or that the
duty to prosecute perpetrators of international crimes is an erga omnes obligation or has
attained the status of jus cogens.
The term erga omnes (Latin: in relation to everyone) in international law has been used
as a legal term describing obligations owed by States towards the community of states as
a whole. The concept was recognized by the ICJ in Barcelona Traction x x x.
Such obligations derive, for example, in contemporary international law, from the
outlawing of acts of aggression, and of genocide, as also from the principles and rules
concerning the basic rights of the human person, including protection from slavery and
racial discrimination. Some of the corresponding rights of protection have entered into
the body of general international law … others are conferred by international instruments
of a universal or quasi-universal character.
The Latin phrase, ‘erga omnes,’ has since become one of the rallying cries of those
sharing a belief in the emergence of a value-based international public order. However,
as is so often the case, the reality is neither so clear nor so bright. Whatever the relevance
of obligations erga omnes as a legal concept, its full potential remains to be realized in
practice.
The term is closely connected with the international law concept of jus cogens. In
international law, the term “jus cogens” (literally, “compelling law”) refers to norms that
command peremptory authority, superseding conflicting treaties and custom. Jus cogens
norms are considered peremptory in the sense that they are mandatory, do not admit
derogation, and can be modified only by general international norms of equivalent
authority.
Early strains of the jus cogens doctrine have existed since the 1700s, but peremptory
norms began to attract greater scholarly attention with the publication of Alfred von
Verdross’s influential 1937 article, Forbidden Treaties in International Law. The
recognition of jus cogens gained even more force in the 1050s and 1960s with the ILC’s
preparation of the Vienna Convention on the Law of Treaties (VCLT). Though there was
a consensus that certain international norms had attained the status of jus cogens, the ILC
was unable to reach a consensus on the proper criteria for identifying peremptory norms.
After an extended debate over these and other theories of jus cogens, the ILC concluded
ruefully in 1963 that “there is not as yet any generally accepted criterion by which to
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identify a general rule of international law as having the character of jus cogens.” In a
commentary accompanying the draft convention, the ILC indicated that “the prudent
course seems to be to x x x leave the full content of this rule to be worked out in State
practice and in the jurisprudence of international tribunals.” Thus, while the existence of
jus cogens in international law is undisputed, no consensus exists on its substance,
beyond a tiny core of principles and rules.”
Sate Immunity: U.S. v. Ruiz, 136 SCRA 487: The Supreme Court held that the traditional rule of
immunity excepts a State from being sued in the courts of another State without its consent or
waiver. This rule is a necessary consequence of the principles of independence and equality of
States. The activities of states have multiplied, it has been necessary to distinguish them ––
between sovereign and governmental acts (jure imperii) and private, commercial and proprietary
acts (jure gestionis). The result is that State immunity now extends only to acts jure imperii. The
restrictive application of State immunity is now the rule in the United States, the United
Kingdom and other states in Western Europe. The restrictive application of State immunity is
proper only when the proceedings arise out of commercial transactions of the foreign sovereign,
its commercial activities or economic affairs. Stated differently, a State may be said to have
descended to the level of an individual and can thus be deemed to have tacitly given its consent
to be sued only when it enters into business contracts. It does not apply where the contract
relates to the exercise of its sovereign functions. In this case the projects are an integral part of
the naval base which is devoted to the defense of both the United States and the Philippines,
indisputably a function of the government of the highest order; they are not utilized for nor
dedicated to commercial or business purposes.
Bishop Arigo et al v. SCOTT H. SWIFT in his capacity as Commander of the US. 7th Fleet,
MARK A. RICE in his capacity as Commanding Officer of the USS Guardian, et al (G.R.
No. 206510, September 16, 2014): The precept that a State cannot be sued in the courts of a
foreign state is a long-standing rule of customary international law then closely identified with
the personal immunity of a foreign sovereign from suit and, with the emergence of democratic
states, made to attach not just to the person of the head of state, or his representative, but also
distinctly to the state itself in its sovereign capacity. If the acts giving rise to a suit arc 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.
C. FORMATION OF TREATIES
The treaty-making process involves four major stages, namely: (NARE)
1. Negotiations by representatives of the states, which includes drafting of text (representatives
must be given full powers by the state);
2. Affixing of signatures of negotiators signifying provisional acceptance (adoption of the text of
the treaty after negotiations);
3. Ratification of the treaty, which is the final acceptance (state’s internal/domestic law’s
requirement on ratification. In the Philippines, the Senate must ratify a treaty); and
4. Entry into force of the treaty (the date of effectivity of the treaty as between the parties; the
manner is determined by the provisions of the treaty).
Case:
Bayan v. Executive Secretary (EDCA), January 13, 2015: “The EDCA provides for
arrangements to implement existing treaties allowing entry of foreign military troops or facilities
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under the VFA and the MDT, and thus may be in the form of an executive agreement solely
within the powers of the President and not requiring Senate concurrence...”
Actions which may affect a treaty:
1. Rejection: If a treaty requires ratification by a legislative body and if that body refuses to give
its consent, the treaty although signed may remain inoperative.
2. Reservations: A party to a treaty may make certain provisions on matters included in the treaty
unless the treaty itself prohibits them.
3. Accession and Adherence: A third party which has not signed a treaty or ratified the same may
by a formal instrument adhere to the provisions of a concluded treaty. (Art.17, Vienna
Convention)
E. INTERNATIONAL AGREEMENTS
Some international agreements have been designated by various nomenclatures, such as:
1. Act, a final act or protocol de cloture: summarizes proceedings in a diplomatic conference
2. Agreement, arrangement or accord, an instrument that covers a limited subject of lesser
importance than a formal treaty or convention
3. Compromise, an agreement that specifies a matter in dispute, the time and manner of
appointing arbitrators, the place where the tribunal shall meet, and such other procedures as may
be agreed upon.
4. Compromis d’ arbitrage, an agreement to submit a dispute to an arbitration or judicial
settlement
5. Concordant, an agreement by the Pope, with heads of State on ecclesiastical affairs
6. Convention, a multilateral treaty or agreement, usually restricted to some technical matter.
International Agreements/ Conventions
U.N. Convention on the Rights of the Child
U.N. Convention on the Protection of Migrant Workers and the Families
U.N. Convention against Transnational Organized Crimes
U.N. High Commission on Refugees
U.N. Convention against Torture
7. Covenant, an international compact which has binding effect, usually on many states
8. Declaration, an instrument which contains three parts: title and stipulations; unilateral
statement creating rights and duties for other states; and a description of an action taken when a
State communicates with other States.
Cases:
Agustin v Edu (G.R. No. L-49112, Feb. 2, 1979). The Philippines is bound by the provisions of
the 1968 Vienna Convention on Road Signs and Signals to adopt a local legislation to fulfil its
obligation.
Santos v. Northwest Airlines (G.R. No. 101538, 1992). The Philippines is bound at the Warsaw
Convention. The injured party must pursue his claim in the United States of America under Art.
28(1) of the Warsaw Convention.
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territory the alleged criminal happens to be at the time. (Oppenheim-Lauterpacht, p.696;
Terlinder v. Ames, 84 U.S. 272 (1902).
Government of Hong Kong Special Administrative Region v. Judge Olalia, Jr. and Muñoz,
G.R. No. 153675, April 19, 2007. The provisions of an extradition treaty may only be invoked by
an existing State which has the capacity to enter into a treaty.
Secretary of Justice v. Hon Ralph Lantion. The rule on pacta sunt servanda must prevail but a
Filipino citizen must also be accorded the protection of domestic law.
Case:
In Re: Castioni, Q.B. 149 (1891). This case involved a local uprising in Switzerland because the
government refused to take a popular vote on a request for a revision of the Constitution. An
armed group entered the municipal government and appointed a provisional government.
Castioni, a member of the armed group, shot a municipal officer and was charged with murder.
He fled to England and Switzerland requested his extradition. The English Court ruled that the
shooting was incidental to and formed part of political disturbances and Castioni cannot be
extradited.
2. Doctrine of Reciprocity
In many states in continental Europe and South America, States consider the factor that if a
crime committed by one of their nationals anywhere, the same constitutes a violation of their
own laws, just as much as in the place where the crime was committed. This saw the emergence
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of the doctrine of reciprocity in extradition of fugitives. This practice allows extradition through
consensual acts of the requesting state and the state where the fugitive is found.
Case:
Couas v. The Supreme Court of San Joaquin County (31 Cal. 2d. 682 (1948), Supreme Court
of California).Petitioner was a native of Greece who emigrated to U.S.A. in 1907 and became a
naturalized citizen. The Greek government never consented to his foreign naturalization. He was
being prosecuted for the charges of murder and for assault upon a person and prayed that the
American court should be enjoined from trying him because she already served his sentence for
the same offenses in Greece. The Court held that the Extradition Treaty between U.S.A. and
Greece has become part of the law of the law and double jeopardy had already set in.
Double Criminality: The principle of double criminality is available only when the act is an
offense in both jurisdictions It need not have the same name, but it must be criminal in both
systems.
Extradition of War Criminals: As violators of crimes against international law, was criminals are
subject to extradition.
Attentat Clause: Extradition agreement/law may stipulate that the murder of a head of a foreign
government or a member of his family should not be considered a political offense.
Diplomatic Asylum
This practice is allowed provided there is no international that is violated.
2. Right of Refugees
Essential Elements of the term “Refugee”:
(a) The person is outside the country of nationality, or, in the case of stateless persons, outside
his habitual residence;
(b) The person lacks national protection; and
(c) The person fears persecution.
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The United Nations High Commissioner for Refugees is charged with the primary responsibility
of addressing the needs of refugees. The work of the UNHCR is entirely non-political character,
humanitarian and social.
Rights of Refugees (based on the Statute of the Office of the UNCHR)
(a) National treatment or treatment accorded to nationals of the Contracting State concerned;
(b) Most-favored nation treatment, or the most favourable treatment accorded to nationals of a
foreign country; and
(c) Treatment as favourable as possible, and in any event, not less favourable than that accorded
to aliens generally in the same circumstances.
To summarize –
A refugee is a person who, owing to a well-founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group or political opinion, is outside the
country of his nationality and is unable or owing to such fear, is unwilling to avail himself of the
protection of that country; or who, not having a nationality and being outside the country of his
former habitual residence, is unable or, or owing to such fear, is unwilling to return to it.
(Convention Relating to the Status of Refugees, Art. 1 A [2]) (Magallona, Fundamentals of
Public International Law, 2005 Ed., p. 287)
THE NON-REFOULEMENT PRINCIPLE
The right of a refugee not to be expelled or returned “in any manner whatsoever to the frontiers
of territories where his life or freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political opinion.” The prohibition of
such expulsion or return becomes an obligation of States parties to the Convention Relating to
the Status of Refugees. (Magallona, Fundamentals of Public International Law, 2005 Ed., p.
289)
THE DOCTRINE OF STATE RESPONSIBILITY TO ALIENS
An important premise for this doctrine to be validly invoked is that a State is under no legal
obligation in international law to admit an alien in its territory. However, the moment it admits
an alien, it is duty-bound to provide protection to that alien so that once the State is remiss in the
performance of this duty and the alien dies, or suffers injury or loss, this could lead to liability on
the part of the State.
REQUISITES FOR THIS DOCTRINE TO APPLY:
1. An act or omission in violation of international law;
2. Attributable to the State;
3. Causing damage or injury to a third State directly, or indirectly, to a national of the third
State.
CONDITIONS FOR THE ENFORCEMENT OF CLAIMS UNDER THIS DOCTRINE:
1. The nationality of the claim;
2. Exhaustion of local remedies;
3. No waiver;
4. No unreasonable delay in filing the claim; and
5. No improper conduct on the part of the injured alien.
B. LETTERS ROGATORY
Letters Rogatory is a formal communication from a court in which an action is pending, to a
foreign court, requesting that the testimony of a witness residing in such foreign jurisdiction be
taken under the direction of the court, addressed and transmitted to the Court making the request.
(See Rule 24, Section 12 of the Rules of Court).
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4. The manufacture, obtaining, possession or supplying of arms, ammunition, explosives or
harmful substances with a view to the commission of a terrorist act (Peter J. van Krieken, ed. ,
Terrorism and the International Law Order, 2002, pp. 17-18).
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C. AGGRESSION
Article 1 of the U.N. General Assembly Resolution 3341 defines aggression as “the use of armed
force by a State against the sovereignty, territorial integrity or political independence of another
State, or in any other manner inconsistent with the Charter of the United Nations.”
D. COMMENCEMENT OF WAR
If there is a declaration of war or the existence of a state of war, the status of war starts at the
moment specified in the declaration. If there is no formal declaration, war starts at the
commencement of the first act of force.
Clark v. Allen, 331 U.S. 503 (1974). The U.S. Supreme Court allowed the four German relatives
of a resident of California to enjoy the properties bequeathed in their favour despite the outbreak
of war between Germany and the American government. The Court held that the outbreak of war
does not necessarily suspend or abrogate treaty provisions between the two States.
Techt v. Hughes, United Nations, Court of Appeals of New York, 229 N.Y. 222128 N.E. 185
(1920). The Court was asked to resolve the right of succession of descendant Sarah Techt who
married a citizen of Austria-Hungary. Her sister Elizabeth Hughes opposed the ruling of the trial
court granting Techt a share in property of their father, James Hannigan. Her opposition is
hinged on that fact that 20 days after the death of their father, U.S. and Austria-Hungary were at
war. Speaking through Justice Cardozo, the Court held that in times of war, some treaties are
dealt with specially and apart.
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(b) All such kinds and degrees of violence as are not necessary for the overpowering of the
opponent should be permitted to a belligerent.
(c) There must be observed some fairness in offense, defense, as well as mutual respect.
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Uses of Prohibited Weapons: The use in war of asphyxiating , poisonous or other gases, and all
analogous liquids, materials or devices, and of bacteriological or biological methods of warfare,
have been prohibited since the 1925 Geneva Protocol.
2. Laws of Warfare at Sea
Sea warfare aims to serve the following objectives: to defeat the navy of the enemy, destruction
of enemy coast fortifications, cutting off intercourse with the enemy coast, prevention of carriage
of contraband, annihilation of the enemy merchant fleet, and the defense of the home coasts as
well as its own merchant fleets. (U.S. Naval War Code; II Oppenheim- Launterpacht, p. 457.)
In an obiter dictum in its 1970 judgment in the Barcelona Traction case, the International
Court of Justice identified a category of international obligations called erga omnes,
namely obligations owed by states to the international community as a whole, intended to
protect and promote the basic values and common interests of all.
Examples of erga omnes norms include piracy, genocide, slavery, torture, and racial
discrimination. The concept was recognized in the International Court of Justice's decision
in the Barcelona Traction case [(Belgium v Spain) (Second Phase) ICJ Rep 1970 3 at
paragraph 33]:
"… an essential distinction should be drawn between the obligations of a State
towards the international community as a whole, and those arising vis-à-vis another
State in the field of diplomatic protection. By their very nature, the former are the
concern of all States. In view of the importance of the rights involved, all States can
be held to have a legal interest in their protection; they are obligations erga omnes.
[at 34] Such obligations derive, for example, in contemporary international law,
from the outlawing of acts of aggression, and of genocide, as also from the principles
and rules concerning the basic rights of the human person, including protection
from slavery and racial discrimination. Some of the corresponding rights of
protection have entered into the body of general international law . . . others are
conferred by international instruments of a universal or quasi-universal character."
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I. THE INTERNATIONAL CRIMINAL COURT (“ICC”)
NATURE OF ICC AND ITS HISTORY
This is an intergovernmental organization and international tribunal, has the jurisdiction to
prosecute individuals for the international crimes of genocide, crimes against humanity, and war
crimes. It sits in The Hague in the Netherlands.
The ICC is intended to complement existing national judicial systems and it may therefore only
exercise its jurisdiction when certain conditions are met, such as when national courts are
unwilling or unable to prosecute criminal also or when the United Nations Security Council or
individual states refer investigations to the Court. The ICC began functioning on 1 July 2002, the
date that the Rome Statute entered into force. The Philippines is a signatory to the Rome Statute.
The ICC has four principal organs: the Presidency, the Judicial Divisions, the Office of the
Prosecutor, and the Registry. The President is the most senior judge chosen by his or her peers in
the Judicial Division, which hears cases before the Court. The Office of the Prosecutor is headed
by the Prosecutor who investigates crimes and initiates proceedings before the Judicial Division.
The Registry is headed by the Registrar and is charged with managing all the administrative
functions of the ICC, including the headquarters, detention union, and public defense office.
IX. NEUTRALITY
A. NEUTRAL STATE: A State refraining from participating in war possesses the status of
neutrality.
Switzerland enjoys perpetual neutrality on account of the “Eight-Power Declaration” of 20
March 1815. This status was confirmed by Austria, France, Great Britain, Prussia and Russia on
20 November 2015.
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(6) Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the
Protection of Victims of Non-International Armed Conflicts (Protocol II) of 8 June 1977.
IHL is not concerned with the lawfulness or unlawfulness of armed conflict. In violation of
the prohibition against the threat or use of force under international law, a state may engage in
armed attack against another state, resulting in armed conflict between them. The application of
IHL in their conflict pertains solely to the fact of armed conflict as the use of force remains
unlawful. Armed conflict, in which IHL properly applies, may arise from a legitimate use of
force as when a multinational force of UN members engages in armed attack against a State by
authority of the UN Security Council as an enforcement measure under Article 42 of the UN
Charter. In either case, there will be victims of the conflict who must come under the protection
of IHL, and there may be methods of warfare which may come under the prohibition of IHL.
Hence, the issue of lawfulness or unlawfulness of the armed conflict is of no legal importance
from the standpoint of IHL. (Magallona, Fundamentals of Public International Law, 2005
ed., p. 293)
THE PRINCIPLE OF DISTINCTION
An important principle to be observed under IHL is the Principle of Distinction. Under this
principle, persons directly engaged in armed conflict must, at all times, distinguish between
civilians and combatants; between civilian objects and military objectives, so that only
combatants and military objectives may be subject of attack.
D. GENOCIDE AS A CRIME
Under the Convention on the Prevention and Punishment of the Crime of Genocide, genocide
means “any of the following acts committed with the intent to destroy, in whole or in part, a
national, ethnical, racial, or religious group, such as:
1. Killing of the members of the group;
2. Causing serious bodily or mental harm to members of the group;
3. Deliberately inflicting on the group, conditions of life calculated to bring about its physical
destruction in whole or in part;
4. Imposing measures intended to prevent births within the group; and
5. Forcibly transferring children of the group to another group. (Article II)
E. TORTURE
Torture is defined as “any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person as obtaining from him or a third person information or a
confession, punishing him for an act he or a third person has committed, or is suspected of
having committed, or intimidating or coercing him or a discrimination of any kind, when such
pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity.” (Article 1(1), Convention against
Torture and other Cruel, Inhuman or Degrading Treatment or Punishment)
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4. Political, civil, economic, social and cultural rights, including freedom of thought, conscience,
religion, expression, discrimination, education, access to information, minority rights, protection
from exploitation, civil and criminal procedural rights;
5. Protection during armed conflict and refugee right; and
6. Right to family environment and the right to know the parents and be cared for by them.
2. Territorial Water: Article 42(2) of UNCLOS provides that there shall be no suspension of
innocent passage through straits used for international navigation. The right of the coastal state to
suspend the same requires that the coastal nation must publish the same and without any
publication, it cannot insist to suspend the use of such body of water. A claim that suspension of
innocent passage is necessary for national security may be cited by the coastal state. Upon the
other hand, if a war ship delayed its right of innocence, the same may justified under Article
18(2) of UNCLOS if the delay was caused by rendering assistance to persons or ship in distress.
3. Contiguous zone is the zone contiguous to the territorial sea and extends up to twenty-four
nautical miles from the territorial sea and over which the coastal state may exercise control
necessary to prevent infringement of its customs, fiscal, immigration or sanitary laws and
regulations within the territory or territorial sea. (Article 33 of UNCLOS)
4. Exclusive Economic Zone is the zone extending up to 200 nautical miles from the baselines
of a state over which the coastal state has sovereign rights for the purpose of exploring
and exploiting, conserving and managing its natural resources, whether living or non-
living, of the waters super adjacent to the seabed and of the seabed and subsoil and with
regard to other activities for the economic exploitation and exploration of the zone. (Articles
56 and 57, UNCLOS)
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5. Extended Continental Shelf is that part of the seabed over which a coastal State
exercises sovereign rights with regard to the exploration and exploitation of natural
resources including oil and gas deposits as well as other minerals and biological
resources of the seabed. The legal continental shelf extends out to a distance of 200
nautical miles from its coast, or further if the shelf naturally extends beyond that limit.
It can go up to 150 nautical miles.
Flag state means a ship has the nationality of the flag of the state it flies, but there must be a
genuine link between the state and the ship. (Article 91, UNCLOS)
Flag of convenience refers to a state with which a vessel is registered for various reasons such as
low or non-existent taxation or low-operating costs although the ship has no genuine link with
that state. (Harris, ibid. p.425)
D. OUTER SPACE
Principles that govern the activities of States in outer space
1. Exploration and use of “outer space shall be for the benefit and in the interest of all
countries… and shall be the province of all mankind.”
2. Outer space “shall be free for exploration and use by all states without discrimination of any
kind on the basis of equality.”
3. Outer space is not subject to “national appropriation by claim of sovereignty, by means of use,
or occupation, or any other means.”
4. The exploration and use of outer space “shall be carried out in accordance with international
law including the charter of the United Nations.”
5. There shall be no installation of nuclear weapons or any other weapons of mass destruction in
outer space.
6. A State party that launches an object to outer space “is internationally liable for damage to
another state party… or its natural or juridical persons by such objects or its components part, on
the Earth, in the air or in outer space…”
7. Ownership of space objects is not affected by their presence in outer space or on celestial
bodies or by return on Earth.
8. The exploration of outer space shall be conducted so as to avoid its harmful contamination as
well as changes in the environment of the earth resulting from the introduction of extraterritorial
matter.
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Method of determining baselines under R.A. No. 3046, June 17, 1961, R.A.
No.5446, September 8, 1968; and R.A. No. 9522( Philippine Archipelagic
Baselines Law) , March 10, 2009, using the straight line approach
Other territories over which the Philippines has sovereignty or jurisdiction
P.D. No. 1596, June 11, 1978
Two Hundred-Mile Exclusive Economic Zone under the following:
P.D. No. 1599, June 11, 1978
Frivaldo v. COMELEC, 257 SCRA 727: The right to govern by virtue of a mandate from the
people is not absolute. The Court held that” the will of the people as expressed through the
ballot cannot cure the vice of ineligibility, especially if they mistakenly believed, as in this case,
that the candidate was qualified. Obviously, this rule requires strict application when the
deficiency is lack of citizenship. If a person seeks to serve in the Republic of the Philippines, he
must owe his total loyalty to this country only, abjuring and renouncing all fealty and fidelity to
any other state.”
Rationale for the Act of State Doctrine:
– Respect for sovereignty of foreign states
Underhill v. Hernandez, 168 US 250 (1897) p. 619: “Every sovereign State is bound to
respect the independence of every other sovereign State, and the courts of one country
will not sit in judgment on the acts of the government of another done within its own
territory. Redress of grievances by reason of such acts must be obtained through the
means open to be availed of by sovereign powers as between themselves.”
Basis of State Immunity, Art. XVI, Sec. 3. The state cannot be sued without its consent.
Department of Agriculture v. NLRC, 227 SCRA: The state cannot be sued without its consent.
The assets of the government cannot be held liable for liabilities of a private person.
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Legality of the Use by a State of Nuclear Weapons, ICJ Reports, 1996
Nuclear Test Cases: ICJ Reports
New Zealand v. France, 1974
Australia v. France, 1974
See also Request for Examination (par. 63 of 1974 judgment), New Zealand v. France, 1995
Paquete Habana, 175 US 677, 1900
D. RESPECT FOR HUMAN DIGNITY AND HUMAN RIGHTS (ART. II, SEC. 11, ART.
III, SECTIONS 17-19, AND ART. XVI, SEC. 5(2))
The Universal Declaration of Human Rights (UDHR) is a declaration adopted by the United
Nations General Assembly as an offshoot of the aftermath of World War II. The International
Bill of Human Rights consists of the Universal Declaration of Human Rights, the International
Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and
Political Rights and its two Optional Protocols.
In a strict sense, the Declaration is not treaty but it has been considered as a constitutive
document for the purpose of defining “fundamental freedoms “ and human rights.”
Government of Hongkong Special Administrative Region v. Judge Olalia, supra. The decision
of the SC in Government of the USA v. Judge Purganan which says that “no bail rule applies in
extradition since bail is available only to one who had arrested and detained for violation of
Philippine criminal laws” was re-examined and, after re-examination, the rule now is that an
extraditee may be allowed to post bail during the pendency of an extradition proceeding.
However, for him to be allowed to post bail, still he must prove that (1) once granted bail he will
not be a flight risk or a danger to the community; and (2) that there exists special, humanitarian
and compelling circumstances that will justify the grant of bail to him, by a clear and convincing
evidence.
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Juan Ponce Enrile v. Sandiganbayan (3rd Div.), G.R. No. 213847, August 18, 2015, En Banc
(Bersamin): A close reading of the ruling of the SC in this case allowing former Senator Juan
Ponce Enrile to post bail although he was charged of plunder, a non-bailable offense, was
because of the Olalia ruling.
In this case, former Senator Enrile was shown not to be a flight risk or a danger to the
community (his voluntary surrender to the authorities and his record of respect for court
processes in earlier cases), and that there exist special, humanitarian and compelling
circumstances (his advanced age, fragile state of health and medical predicament that will require
the services of doctors of his choice) that will justify the grant of bail to him.
The Court is further mindful of the Philippine’s responsibility in the international community
arising from the national commitment under the Universal Declaration of Human Rights x x x.
“This national commitment to uphold the fundamental human rights as well as value the
worth and dignity of every person has authorized the grant of bail not only to those
charged in criminal proceedings but also to extraditees upon a clear and convincing
showing: (1) that the detainee will not be a flight risk or a danger to the community; and
(2) that there exist special, humanitarian and compelling circumstances.”
Case: RIGHT TO SELF-DETERMINATION
The Province of North Cotabato v. The Government of the Republic of the Philippines Peace
Panel, G.R. No. 183591, 568 SCRA 402, October 14, 2008, En Banc (Carpio-Morales): The
right to self-determination of peoples has gone beyond mere treaty or convention; in fact, it has
now been elevated into the status of a generally accepted of international law. However, this
right to self-determination of peoples may be understood in two senses, i.e., the right to internal
self-determination (a people’s pursuit of its own political, economic, social and cultural
development within the framework of an existing State), and the right to external self-
determination (which consists of the assertion of a right to unilateral secession). But, as
normally understood in international law, this right to self-determination merely refers to the
right to internal self-determination. The right to external self-determination, may be invoked
only in extreme cases, i.e., in case of people under colonial rule, or in case of people under
foreign domination or exploitation outside of a colonial context.
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The sovereignty of a state therefore cannot in fact and in reality be considered absolute. Certain
restrictions enter into the picture:
(1) limitations imposed by the very nature of membership in the family of nations; and
(2) limitations imposed by treaty stipulations.
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