Anda di halaman 1dari 17

Midterms Reviewer in Public International Law

Mark Anthony N. Manuel

ARELLANO UNIVERSITY SCHOOL OF LAW PUBLIC INTERNATIONAL LAW Part I. Basic Concepts in International Law 1. Concepts Q: Does International Law qualify as law? Is it binding? YES: International law is law because it is seen as such by states and other subjects of international law. (Bernas 2002, pg. 5) NO: International law is not law because it is commonly disregarded. (Bernas 2002, pg. 3) BINDING? Yes, because of the possible consequences of defiance either to oneself or to the larger society. The ultimate explanation of the binding force of all law is that man, whether he is single individual or whether he is associated with other men in a state, is constrained, in so far as he is a reasonable being, to believe that order and not chaos is the governing principle of the world on which he lives. (Brierly, The Law of Nations, pg. 55 to 56) Q: Are there similarities (or differences) between Philippine law and International Law?

The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. (Section 2, Article II, 1987 Constitution). For this reason, it is clear that the generally accepted principles of PIL are now part of our municipal law. Despite this constitutional provision, however, a treaty or treaties may be declared unconstitutional by our courts on the basis of Section 21, Article VII, of the 1987 Constitution which clearly provides as follows: No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate. Other distinctions: In IL the principal sanctions are reprisals and war, where as in PL, the law is enforced through criminal punishment or execution of judgment. In IL collective responsibility is the rule for failures or omissions, while in PL individual responsibility generally prevails. (Suarez, Political Law Reviewer) Q: Is Philippine law part of the international legal system?

No. IL is created by the cooperation of two or more States while the PL is created by only one State through its centralized government. States cannot be obligated to follow the laws of an equally sovereign state. (Cruz, International Law) 1. Definition of International Law International Law deals with the conduct of states and of the international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical. 2. Theories of International Law BERNAS Command Theory Law consists of commands originating from a sovereign and backed up by threats of sanctions if disobeyed. 1

Midterms Reviewer in Public International Law

Mark Anthony N. Manuel

Consensual Theory IL derives its binding force from the consent of the state. Treaties are expression of consent. Natural Law Theory Law is derived by reason from the nature of man. Application of natural reason to the nature of the state-person. Feminist Theory Contribution and influence of women. ATTY. RAMOS Natural Law School of Thought claims that the basis of IL is the natural common law, which in turn, is based on the rule of human conduct implanted by the Creator in the very nature of man and in his conscience to do what is right and to avoid what is evil. Positivist School of Thought the basis is the common consent of States. Eclectic School of Thought PIL is premised both on the natural moral law and on common consent.

A. Monism and Dualism Monism IL and DL belongs to only one system with international law considered as superior to domestic law. Dualism IL and DL are two different spheres. They would favor state law.

B. Status of national law in the international legal system According to the Monistic View, both laws depend on each other and both are ultimately directed to the same individual because a state is composed of individuals. While ostensibly, IL deals with foreign affairs and national law concerns itself with domestic affairs, every so-called domestic affair of a State can be made the subject matter of an international agreement, hence, it is transformed into a foreign affair. Meanwhile, according to the Dualistic View, IL is completely distinct from municipal law and IL and NL are mutually independent of each other because the subject matter of IL is foreign affairs, whereas the subject matter of NL is domestic affairs.

2.

Sources of International Law Q: How are rules of International Law created?

Section 102 of the ALI Restatement (Third) of Foreign Relations Law of the United States sets forth the "sources" of international law, i.e., the ways in which a rule or principle becomes international law. This section indicates the means of proving, for example, in a court or other tribunal, which a rule has become international law by way of one or more of the sources indicated in Section 102. Under Subsection (1), the process of determining whether a rule has been accepted as international law depends on the particular source of international law indicated in Section 102 from which the rule is alleged to derive. Thus, for customary law the "best evidence" is proof of state practice, ordinarily by reference to official documents and other indications of governmental action. Law made by international agreement is proved by reference to the text of the agreement, but appropriate supplementary means to its interpretation are not excluded. Subsection (2) refers to secondary evidence indicating what the law has been found to be by authoritative reporters and 2

Midterms Reviewer in Public International Law

Mark Anthony N. Manuel

interpreters; the order of the clauses is not meant to indicate their relative importance. Such evidence may be negated by primary evidence, for example, as to customary law, by proof as to what state practice is in fact. A determination as to whether a customary rule has developed is likely to be influenced by assessment as to whether the rule will contribute to international order. Q: How does one know what a particular rule of international law allows (or prohibits)? By determining if the rule is binding in his country. The source of the rule should also be identified if it is either formal or material. See discussions below. Q: Is a treaty superior to customary law? No. See discussions below.

Q: Are there rules of customary law that are superior to treaties? No. See discussions below.

1. Formal sources (processes):(a) treaty, (b) custom, (c) general principle of law Formal Sources can refer to the various processes by which rules comes to existence. Treaty an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an (international) agreement, protocol, covenant, convention or exchange of letters, among other terms. It determines the rights and duties of states just as individual rights are determine by contracts. Custom a general and consistent practice of states followed by them from a sense of legal obligation. (Restatement) General Principles of International Law principles of municipal law common to the major legal systems of the world. 2. Material sources (content) Material Sources are not concerned with how rules come into existence but rather with the substance and content of the obligation. They identify what obligations are. Examples: UN Resolutions, Judicial Decisions, Writings of Jurists 3. Evidence of existence and content: (a) principal means (text of treaty and state practice) (b) subsidiary means (judicial decisions and teachings of highly qualified publicists) 4. Treaty A treaty (meaning as a material source) is an official, express written agreement that states use to legally bind themselves. A treaty is that official document which expresses that agreement in words; and it is also the objective outcome of a ceremonial occasion which acknowledges the parties and their defined relationships. 5. Custom (a) state practice and opinio juris State Practice: the initial factor for determining the existence of custom. These include several elements: Duration (most important), Necessity, and Generality of the practice of states. 3

Midterms Reviewer in Public International Law

Mark Anthony N. Manuel

Opinio Juris is the belief that a certain form of behavior is obligatory, is what makes practice an international rule. Without it, practice is not a law. (b) obligations erga omnes Erga Omnes is a legal term describing obligations owed by states towards the community of states as a whole. An erga omnes obligation exists because of the universal and undeniable interest in the perpetuation of critical rights (and the prevention of their breach). 6. General principle of law General Principles of Laws belong to no particular system of law but are evidence of the fundamental unity of all laws. 7. ICJ: concept of ex aequo et bono Ex aequo et bono (Latin for "according to the right and good" or "from equity and conscience") is a legal term of art. In the context of arbitration, it refers to the power of the arbitrators to dispense with consideration of the law and consider solely what they consider to be fair and equitable in the case at hand. Article 38(2) of the Statute of the International Court of Justice provides that the court may decide cases ex aequo et bono, but only where the parties agree thereto. Through 2007, ICJ has never decided such a case. It reads as Article 38(2) This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto. 8. Treaty v. Custom (a) is there a hierarchy?NO. Rules (Bernas): 1. Whether or not treaties override custom depends on the intention of the parties. If the treaty is intended to be declaratory of customary law, it may be seen as evidence of customary law. 2. If Treaty comes later than a particular custom, as between the parties to the treaty, the treaty should prevail. 3. If a later treaty is contrary to a customary rule that has the status of jus cogens, the custom prevail. 4. In a situation, where custom develops after a treaty, the rule is not clear. The logical rule should be that the later custom, being expression of a later will, should prevail. (b) jus cogens A peremptory norm or jus cogens (Latin for "compelling law" or "strong law") is a principle of international law considered so fundamental that it overrides all other sources of international law, including even the Charter of the United Nations. The principle of jus cogens is enshrined in Article 53 of the Vienna Convention on the Law of Treaties: It is a norm accepted and recognised 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. Rules of jus cogens generally require or forbid the state to do particular acts or respect certain rights. However, some define criminal offences which the state must enforce against individuals. Generally included on lists of such norms are prohibitions of such crimes and internationally 4

Midterms Reviewer in Public International Law

Mark Anthony N. Manuel

wrongful acts as waging aggressive war, war crimes, crimes against humanity, piracy, genocide, apartheid, slavery and torture.

Article 38(1), Statute of the International Court of Justice (ICJ) The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. Section 102, ALI Restatement (Third) of Foreign Relations Law of the United States (1) A rule of international law is one that has been accepted as such by the international community of states (a) in the form of customary law; (b) by international agreement; or (c) by derivation from general principles common to the major legal systems of the world. (2) Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation. (3) International agreements create law for the states parties thereto and may lead to the creation of customary international law when such agreements are intended for adherence by states generally and are in fact widely accepted. (4) General principles common to the major legal systems, even if not incorporated or reflected in customary law or international agreement, may be invoked as supplementary rules of international law where appropriate. Case: Nicaragua v. USA The Republic of Nicaragua v. The United States of America was a 1984 case of the International Court of Justice (ICJ) in which the ICJ ruled in favor of Nicaragua and against the United States and awarded reparations to Nicaragua. The ICJ held that the U.S. had violated international law by supporting the Contras in their rebellion against the Nicaraguan government and by mining Nicaragua's harbors. The United States refused to participate in the proceedings after the Court rejected its argument that the ICJ lacked jurisdiction to hear the case. The U.S. later blocked enforcement of the judgment by the United Nations Security Council and thereby prevented Nicaragua from obtaining any actual compensation. The Nicaraguan government finally withdrew the complaint from the court in September 1992 (under the later, post-FSLN, government of Violeta Chamorro), following a repeal of the law requiring the country to seek compensation. The Court found in its verdict that the United States was "in breach of its obligations under customary international law not to use force against another State", "not to intervene in its affairs", "not to violate its sovereignty", "not to interrupt peaceful maritime commerce", and "in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956." The Court had 16 final decisions upon which it voted. In Statement 9, the Court stated that the U.S. encouraged human rights violations by the Contras by the manual entitled Psychological Operations in Guerrilla Warfare. However, this did not make such acts attributable to the U.S 5

Midterms Reviewer in Public International Law

Mark Anthony N. Manuel

July 2, 2011 3. Q: Subjects of International Law Do non-state entities (e.g., natural persons) have rights under the law of nations?

Yes. As objects of international law, non-state entities indirectly have rights, or are beneficiaries of international law through subjects of IL. For example, natural persons have rights which owe to be respected by other States but if they have some grievances, they have to course the same through their Government and their diplomatic offices. Q: Q: Q: How does an entity become a state? See below. What are the fundamental rights of a state? See below. What are the basic obligations of a state? See below.

1. In general (a) States A state may be defined as a group of people living together in a definite territory under an independent government organized for political ends and capable of entering into international relations. (b) Non-states - International organizations IO may be vested with international personality when two conditions concur: 1. Their purpose is mainly non-political 2. That they are autonomous (Not subject to the control of any State) - Natural persons Natural persons are regarded as objects of IL who can act through the instrumentality of their own states in matters involving others states. - Juridical persons Also regarded as mere objects of IL. 2. States 2.1. Qualifications (PTGS) 1. People Human beings in the states that should be of both sexes and sufficient in number to maintain and perpetuate themselves. 2. Territory the fixed portion of the surface of the earth on which the people of the state resides. It should be big enough to be self-sufficient and small enough to be easily administered and defended. 3. Government the agency through which the will of the state is formulated, expressed, and realized. 4. Sovereignty The power of the state to direct its own external affairs without interference or dictation of other states. 2.2. Recognition of states vs. recognition of governments Recognition of States is the act of acknowledging the existence of a state. It a political act, which is exercised by the political department of the State.

Midterms Reviewer in Public International Law

Mark Anthony N. Manuel

Recognition of Government is when a government is recognized by other states because it already enjoys the support and popular consent or approval of the people and has shown willingness and ability to discharge its international obligations. Majority Views in Recognition of States: a. Declarative/Affirmative View The recognition merely affirms an existing fact. b. Constitutive View Recognition is compulsory and legal. Kinds of Recognition: 1. Express 2. Implied 3. De facto (Provisional because some requirements are lacking) 4. De jure (Full economic intercourse and observance) Doctrines Regarding Recognition of any government (As discussed by Atty. Ramos) 1. Stimson Doctrine No recognition shall be extended to a government established by and through external aggression. 2. Tobar/Wilson Doctrine recognition of government which is established by revolutionary means shall not be extended until the said government shall have established a constitutional reorganization and shall have freely elected its representative. 3. Estrada Doctrine a recognizing State will not issue a declaration giving recognition to another government which is established through political upheaval. Instead, it will merely accept whatever government has effective control without making a judgment on whether the government that is recognized is legitimate or not. How are States created? (RUS-AAA) 1. Revolution 2. Unification 3. Secession 4. Assertion of Independence 5. Agreement 6. Attainment of Civilization Extinguishment of States (MADUP) 1. Merger 2. Annexation after conquest in war 3. Division into several States 4. Union with several States 5. Partial extinction a. It places itself under the protectorate or suzerainty of a strong State b. Joins a confereancy 2.3. Rights of states (JESI) - Jurisdiction over its territory and persons and things therein - Equality in law Rights of the state regardless of its size, population, power, degree of civilization, wealth, etc. must be respected, and if a state has obligations, it has to respect and comply with them.

Midterms Reviewer in Public International Law

Mark Anthony N. Manuel

- Self-defense Every State has a right of individual or collective self defense. To justify the exercise of self defense there must an armed attack, the attack must be against a UN member, and the Security Council must have not acted yet. - Independence Freedom from external control in the conduct of external and internal affairs. 2.4. Duties of states(PORNN) - Pacific settlement of disputes It requires countries with disputes that could lead to war to first of all try to seek solutions through peaceful methods such as negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice." If these methods of alternative dispute resolution fail, then they must refer it to the UN Security Council. - Other duties Respect for equality Fulfillment of obligations in good faith Refraining from giving assistance to enemies of UN Respect for human rights

- Non-intervention A foreign policy which holds that political rulers should avoid alliances with other nations, but still retain diplomacy, and avoid all wars not related to direct territorial self-defense. This is based on the grounds that a state should not interfere in the internal politics of another state, based upon the principles of state sovereignty and self-determination. A similar phrase is "strategic independence". - Non-use of force All members (of UN) shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations. [UN Charter, Article 2 (4)] Montevideo Convention on the Rights and Duties of States (1933) The Montevideo Convention on the Rights and Duties of States was a treaty signed at Montevideo, Uruguay, on December 26, 1933, during the Seventh International Conference of American States. The Convention codified the declarative theory of statehood as accepted as part of customary international law. At the conference, United States President Franklin D. Roosevelt and Secretary of State Cordell Hull declared the Good Neighbor Policy, which opposed U.S. armed intervention in inter-American affairs. The convention was signed by 19 states. The acceptance of three of the signatories was subject to minor reservations. Those states were Brazil, Peru and the United States. International Law Commission Draft Declaration on the Rights and Duties of States (1949) (1) Constitutive Theory of Statehood The constitutive theory of statehood defines a state as a person of international law if, and only if, it is recognized as sovereign by other states. Under it, a state was sovereign if another sovereign state recognized it as such. Because of this, new states could not immediately become part of the international community or be bound by international law, and recognized nations did not have to respect international law in their dealings with them.

Midterms Reviewer in Public International Law

Mark Anthony N. Manuel

(2) Declarative Theory of Statehood The "declarative" theory defines a state as a person in international law if it meets the following criteria: 1) a defined territory; 2) a permanent population; 3) a government and 4) a capacity to enter into relations with other states. According to declarative theory, an entity's statehood is independent of its recognition by other states. (3) Estrada Doctrine It claims that foreign governments should not judge, positively or negatively, the governments or changes in government of other nations, in that such action would imply a breach to their sovereignty. This policy was said to be based on the principles of non-intervention, peaceful resolution of disputes and self-determination of all nations. (4) Montevideo Convention The convention sets out the definition, rights and duties of statehood. Most well-known is article 1, which sets out the four criteria for statehood that have sometimes been recognized as an accurate statement of customary international law: The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states. INTERNATIONAL ORGANIZATIONS Q: What is the difference between an inter-governmental organization (IO) and an international non-governmental organization (NGO)?

IO is an organization that is set up by treaty among two or more states. It is different from nongovernmental organizations (NGO) which are set up by private persons. Q: How are inter-governmental organizations created?

IOs are created by way of a treaty. For this reason only states are members of IO. Q: Are all states bound to recognize the personality of an inter-governmental organization created by a group of states?

No. Only those who are parties to the treaty that created such IO are bounded to recognize such personality. Q: Can a corporation which is organized and existing under the domestic laws of a state have rights under international law?

Yes, because they are considered as objects of international law. 3. Non-states 3.1. International organizations - United Nations (objective personality) The international personality of an international organization is effective vis--vis all States, and not simply Member States. The United Nations is the only international organization with objective international personality: fifty States, representing the vast majority of the members of the international community [in 1945], had the power, in conformity with international law, to bring into being an entity possessing objective international personality, and not merely personality recognized by them alone. Principle of speciality

International organizations do not, unlike States, possess a general competence, but are governed by the "principle of speciality", that is to say, they are invested by the States
9

Midterms Reviewer in Public International Law

Mark Anthony N. Manuel

which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them.
3.2. Natural persons 3.3. Juridical persons

July 16, 2011 4. International Law and Philippine Law Q: Is International Law superior to the Philippine Constitution? No. Our Constitution should be upheld being the highest law of the land. Our Constitution provides that a treaty may be declared unconstitutional by the courts. From this point of view, the municipal law prevails. Example is the case of Ichong vs. Hernandez, where it was then held that the Retail Trade Naturalization Law prevails over the the Treaty of Amity with China. a Philippine statute? No. The rules of international law are given equal standing with, but are not superior to, national legislative enactments. A treaty may repeal a statute, and a statute may repeal a treaty; thus, the principle of lex posterior derogate priori, that comes last in time, will usually be upheld by the Philippine courts. (Suarez, Political Law) a Philippine executive issuance? Yes. International laws form parts of the laws of the Philippines under the doctrine of incorporation in the Constitution. Thus, an executive issuance, not being a law, shall not prevail over an international law. Q: How may one invoke rules of International Law before a Philippine court? By invoking the doctrine of incorporation in our Constitution which says that the Philippines adopts the generally accepted principles of international law as part of the law of the land For this reason, it is clear that the generally accepted principles of PIL are now part of our municipal law. Besides the said constitutional provision, the Philippines is a member of various international organizations (UN, ASEAN, SEATO). This proves that the Philippines are bound to respect the generally accepted principles of international law, particularly the commitments provided for in all treaties it has signed. Q: What are the Philippine rules on treaty-making?

To be valid, a treaty must (Dala CAR Co sa SM bili CP) : (a) be entered into by parties with the treaty making capacity; (b) through their authorized representative; (c) without the attendance of duress, fraud, mistake, or other vices of consent; (d) on any lawful subject matter; (e) in accordance their respective constitutional processes. Notes: All states have treaty-making capacity, unless limited by reason of status or by previous self-imposed prohibitions. 10

Midterms Reviewer in Public International Law

Mark Anthony N. Manuel

The Constitution authorizes the President to make treaties, subject to the concurrence of two-thirds of all the members of the Senate. (Art. VII, Sec. 21) Fraud or mistake will invalidate a contract, like an ordinary contract. The treaty-making process is governed by international law except with respect to the method of ratification as required by the municipal law of most states at present. Treaty-making process (Nasan Si Rizal? Ewan ko.): 1. Negotiation. It may be undertaken directly by the heads of state but they now usually assign this task to his authorized representative. These representatives are provided with credentials known as full powers. It is a standard practice that one party will submit a draft of the proposed treaty. 2. Signature. If and when the negotiations finally decide on the terms of the treaty, the same is opened for signature. This step is primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties but does not indicate the final consent of the state in cases where ratification of the treaty is required. 3. Ratification. It is the formal act which a state confirms and accepts the provisions of a treaty concluded by its representatives. The purpose is to enable the contracting states to examine the treaty more closely. 4. Exchange of the instrument of ratification. It usually signifies the effectivity of the treaty unless a different date has been agreed upon by the parties. Where a ratification is dispensed with and no effectivity clause is embodied in the treaty, the instrument is deemed effective upon its signature. 1. Status of international law in the Philippine legal system. See Question 2 above. 2. Transformation v. Incorporation Transformation For international law become part of domestic law it must be expressly and specifically transformed into domestic law through the appropriate constitutional machinery such as act of Congress or Parliament. It is based on a strict dualist approach. Incorporation The state shall make a specific declaration, usually in its Constitution, that IL has a force also of domestic law. (Austria, Germany, Korea, Philippines) 3. International Agreement: (a) Treaty, (b) Executive Agreement The domestic requirements for the entry into force of a treaty or an executive agreement, or any amendment thereto, shall be as follows: A. Executive Agreements. i. All executive agreements shall be transmitted to the Department of Foreign Affairs after their signing for the preparation of the ratification papers. The transmittal shall include the highlights of the agreements and the benefits which will accrue to the Philippines arising from them. ii. The Department of Foreign Affairs, pursuant to the endorsement by the concerned agency, shall transmit the agreements to the President of the Philippines for his ratification. The original signed instrument of ratification shall then be returned to the Department of Foreign Affairs for appropriate action. B. Treaties.

11

Midterms Reviewer in Public International Law

Mark Anthony N. Manuel

i. All treaties, regardless of their designation, shall comply with the requirements provided in subparagraph[s] 1 and 2, item A (Executive Agreements) of this Section. In addition, the Department of Foreign Affairs shall submit the treaties to the Senate of the Philippines for concurrence in the ratification by the President. A certified true copy of the treaties, in such numbers as may be required by the Senate, together with a certified true copy of the ratification instrument, shall accompany the submission of the treaties to the Senate. ii. Upon receipt of the concurrence by the Senate, the Department of Foreign Affairs shall comply with the provision of the treaties in effecting their entry into force. (Pimentel vs. Executive Secretary) Case Doctrines: Status of international law in the Philippine legal system Ichong v. Hernandez, 101 Phil. 1155 (1957) Police power cannot be bargained away through the medium of a treaty or a contract. RA 1180 was enacted to remedy a real and actual danger to national economy posed by alien dominance and control. If ever the law infringes upon the said treaty, the latter is always subject to qualification or amendment by a subsequent law and the same may never curtain or restrict the scope of the police power of the State.

Gonzales v. Hechanova, 9 SCRA 230 (1963) Although the President may, under the American constitutional system enter into executive agreements without previous legislative authority, he may not, by executive agreement, enter into a transaction which is prohibited by statutes enacted prior thereto. Under the Constitution, the main function of the Executive is to enforce laws enacted by Congress. The former may not interfere in the performance of the legislative powers of the latter, except in the exercise of his veto power. He may not defeat legislative enactments that have acquired the status of law, by indirectly repealing the same through an executive agreement providing for the performance of the very act prohibited by said laws. Third issue (WTO Agreement and Legislative Power) in Tanada v. Angara, G.R. No. 118295 In its Declaration of Principles and state policies, the Constitution adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity , with all nations. By the doctrine of incorporation, the country is bound by generally accepted principles of international law, which are considered automatically part of our own laws. Pacta sunt servanda international agreements must be performed in good faith. A treaty is not a mere moral obligation but creates a legally binding obligation on the parties. Through WTO the sovereignty of the state cannot in fact and reality be considered as absolute because it is a regulation of commercial relations among nations. Such as when Philippines joined the United Nations (UN) it consented to restrict its sovereignty right under the concept of sovereignty as autolimitation. What Senate did was a valid exercise of authority. As to determine whether such exercise is wise, beneficial or viable is outside the realm of judicial inquiry and review. The act of signing the said agreement is not a legislative restriction as WTO allows withdrawal of membership should this be the political desire of a member. Also, it should not be viewed as a limitation of economic sovereignty. WTO remains as the only viable structure for multilateral trading and the veritable forum for the development of international trade law. Its alternative is isolation, stagnation if not economic self-destruction. Thus, the people be allowed, through their duly elected officers, make their free choice.

12

Midterms Reviewer in Public International Law

Mark Anthony N. Manuel

Treaty-making under Philippine law

Pimentel v. Office of the Executive Secretary, G.R. No. 158088, July 6, 2005 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 countrys sole representative with foreign nations. As the chief architect of foreign policy, the President acts as the countrys 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. In the realm of treaty-making, the President has the sole authority to negotiate with other states. Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987 Constitution provides that no treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate. The participation of the legislative branch in the treaty-making process was deemed essential to provide a check on the executive in the field of foreign relations. By requiring the concurrence of the legislature in the treaties entered into by the President, the Constitution ensures a healthy system of checks and balance necessary in the nations pursuit of political maturity and growth. Signing vs. Ratification of Treaty It should be underscored that the signing of the treaty and the ratification are two separate and distinct steps in the treaty-making process. As earlier discussed, the signature is primarily intended as a means of authenticating the instrument and as a symbol of the good faith of the parties. It is usually performed by the states authorized representative in the diplomatic mission. Ratification, on the other hand, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representative. It is generally held to be an executive act, undertaken by the head of the state or of the government. Purpose of Ratification Petitioners submission that the Philippines is bound under treaty law and international law to ratify the treaty which it has signed is without basis. The signature does not signify the final consent of the state to the treaty. It is the ratification that binds the state to the provisions thereof. In fact, the Rome Statute itself requires that the signature of the representatives of the states be subject to ratification, acceptance or approval of the signatory states. Ratification is the act by which the provisions of a treaty are formally confirmed and approved by a State. By ratifying a treaty signed in its behalf, a state expresses its willingness to be bound by the provisions of such treaty. After the treaty is signed by the states representative, the President, being accountable to the people, is burdened with the responsibility and the duty to carefully study the contents of the treaty and ensure that they are not inimical to the interest of the state and its people. Thus, the President has the discretion even after the signing of the treaty by the Philippine representative whether or not to ratify the same. The Vienna Convention on the Law of Treaties does not contemplate to defeat or even restrain this power of the head of states. If that were so, the requirement of ratification of treaties would be pointless and futile. It has been held that a state has no legal or even moral duty to ratify a treaty which has been signed by its plenipotentiaries. There is no legal obligation to ratify a treaty, but it goes without saying that the refusal must be based on substantial grounds and not on superficial or whimsical reasons. Otherwise, the other state would be justified in taking offense. President has the Power to Ratify Treaties

13

Midterms Reviewer in Public International Law

Mark Anthony N. Manuel

It should be emphasized that under our Constitution, the power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence, to the ratification. Hence, it is within the authority of the President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification, refuse to ratify it. Although the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly, such decision is within the competence of the President alone, which cannot be encroached by this Court via a writ of mandamus. This Court has no jurisdiction over actions seeking to enjoin the President in the performance of his official duties. The Court, therefore, cannot issue the writ of mandamus prayed for by the petitioners as it is beyond its jurisdiction to compel the executive branch of the government to transmit the signed text of Rome Statute to the Senate. Constitutional Provisions: (Section 2, Article II) The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. (Section 21, Article VII) No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate. (Section 5(2)(a), Article VIII) The Supreme Court shall have the following powers: (2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in: (a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. JURISDICTION 5. Jurisdiction of States and Immunities, including Diplomatic and Consular Law Q: What is meant by jurisdiction?

Jurisdiction is the authority to affect legal interests. Q: 1) 2) 3) Q: What are the three forms of a states jurisdiction? Legislative jurisdiction or the jurisdiction to prescribe norms of conduct. Executive Jurisdiction or the jurisdiction to enforce the norms prescribed. Judicial Jurisdiction or the jurisdiction to adjudicate. What principles can be used to justify a states exercise of jurisdiction (i) within its territorial borders? (ii) beyond its territorial borders?

i. The fundamental source of jurisdiction is sovereignty over territory. A state has absolute, but not necessary exclusive power to prescribe, adjudicate and enforce rules for conduct that occurs within its territory. For this reason, it is necessary that boundaries be determined. ii. See below for discussions on Nationality, Protective, Passive Personality Principles 14

Midterms Reviewer in Public International Law

Mark Anthony N. Manuel

Q:

Q:

If State A claims that State B acted without or in excess of its jurisdiction, who has the burden of proving that State B indeed acted without or in excess of its jurisdiction? The President of State A is in the territory of State B. Can the President of State A claim that State B cannot exercise jurisdiction over his person? Jurisdiction: legislative, executive, judicial (See above) Bases (i.e., arguments which are used) for asserting jurisdiction: territorial, nationality, passive personality, protective, universal

1. 2.

Nationality Principle every state has jurisdiction over its nationals even when those nationals are outside the state. Protective Principle a state may exercise jurisdiction over conduct outside its territory that threatens its security, as long as that conduct is generally recognized as criminal by states in the international community. Passive Personality a state may apply law particularly criminal law to an act committed outside its territory by a person not its national where the victim of the act was its national. 3. 4. Lotus presumption: states may do as they please unless prohibited by international law General rule: jurisdiction Exception: immunity

Doctrine of State Immunity a State enjoys immunity from the exercise of jurisdiction by another State. The courts of one State may not assume jurisdiction over another State. Note: SI applied only to acta jure imperii (governmental act) and not to acta jure gestonis (commercial act). 5. 6. Immunity of a foreign state: (a) head of foreign state (incumbent and former), (b) other high officials, government agencies, diplomats and consuls of foreign state Immunity of an international organization and its staff

CASE DOCTRINES: Foreign state United States of America, et al. v. Hon. V. M. Ruiz, G.R. No. L-35645, May 22, 1985 The traditional role of the state immunity exempts a state from being sued in the courts of another state without its consent or waiver. This rule is necessary consequence of the principle of independence and equality of states. However, the rules of international law are not petrified; they are continually and evolving and because the activities of states have multiplied. It has been necessary to distinguish them between sovereign and governmental acts and private, commercial and proprietary acts. The result is that state immunity now extends only to sovereign and governmental acts. The restrictive application of state immunity is proper only when the proceedings arise out of commercial transactions of the foreign sovereign. A state may be descended to the level of an individual and can thus be deemed to have tacitly given its consent to be sued when it enters into business contracts. However, this does not apply where the contracts relates to the exercise of its sovereign function. 15

Midterms Reviewer in Public International Law

Mark Anthony N. Manuel

Diplomats and consuls of a foreign state Republic of Indonesia v. Vinzon, G.R. No. 154705, June 26, 2003 Waiver of the immunity must be clear and unequivocal, and should not only be gleaned impliedly. Hence, the existence alone of a paragraph in a contract stating that any legal action arising out of the agreement shall be settled according to the laws of the Philippines and by a specified court of the Philippines is not necessarily a waiver of sovereign immunity from suit. The aforesaid provision contains language not necessarily inconsistent with sovereign immunity. On the other hand, such provision may also be meant to apply where the sovereign party elects to sue in the local courts, or otherwise waives its immunity by any subsequent act. The applicability of Philippine laws must be deemed to include Philippine laws in its totality, including the principle recognizing sovereign immunity. Hence, the proper court may have no proper action, by way of settling the case, except to dismiss it. Submission by a foreign state to local jurisdiction must be clear and unequivocal. It must be given explicitly or by necessary implication. There is no such waiver in this case. Moreover, the rule that a State may not be sued without its consent is a necessary consequence of the principles of independence and equality of States. The mere entering into a contract by a foreign State with a private party cannot be construed as the ultimate test of whether or not it is an act jure imperii or jure gestionis. Such act is only the start of the inquiry. A sovereign State does not merely establish a diplomatic mission and leave it at that; the establishment of a diplomatic mission encompasses its maintenance and upkeep. Hence, the State may enter into contracts with private entities to maintain the premises, furnishings and equipment of the embassy and the living quarters of its agents and officials. It is therefore clear that petitioner Republic of Indonesia was acting in pursuit of a sovereign activity when it entered into a contract with respondent for the upkeep or maintenance of the air conditioning units, generator sets, electrical facilities, water heaters, and water motor pumps of the Indonesian Embassy and the official residence of the Indonesian ambassador. International organizations and staff Liang v. People of the Philippines, G.R. No. 125856, March 26, 2001 The immunity mentioned therein is not absolute, but subject to the exception that the act was done in official capacity. The prosecution should have been given the chance to rebut the DFA protocol and it must be accorded the opportunity to present its controverting evidence.

Slandering a person could not possibly be covered by the immunity agreement because our laws do not allow the commission of a crime, such as defamation, in the name of official duty. It is a well-settled principle of law that a public official may be liable in his personal private capacity for whatever damage he may have caused by his act done with malice or in bad faith or beyond the scope of his authority or jurisdiction. Under the Vienna Convention on Diplomatic Relations, the commission of a crime is not part of official duty.
International Catholic Migration Commission v. Calleja, G.R. No. 85750, September 28, 1990 The grant of diplomatic privileges and immunities to ICMC extends to immunity from the application of Philippine labor laws, because it is clearly necessitated by their international character and respective purposes which is to avoid the danger of partiality and interference by the host country in their internal workings. 16

Midterms Reviewer in Public International Law

Mark Anthony N. Manuel

Employees are not without recourse whenever there are disputes to be settled because each specialized agency shall make provision for appropriate modes of settlement of disputes out of contracts or other disputes of private character to which the specialized agency is a party. Moreover, pursuant to article IV of memorandum of abuse of privilege by ICMC, the government is free to withdraw the privileges and immunities accorded. DFA v. NLRC, G.R. No. 113191, September 18, 1996 Certainly, the mere entering into a contract by a foreign state with a private party cannot be the ultimate test. Such an act can only be the start of the inquiry. The logical question is whether the foreign state is engaged in the activity in the regular course of business. If the foreign state is not engaged regularly in a business or trade, the particular act or transaction must then be tested by its nature. If the act is in pursuit of a sovereign activity, or an incident thereof, then it is an act jure imperii, especially when it is not undertaken for gain or profit. The service contracts referred to by private respondent have not been intended by the ADB for profit or gain but are official acts over which a waiver of immunity would not attach. With regard to the issue of whether or not the DFA has the legal standing to file the present petition, and whether or not petitioner has regarded the basic rule that certiorari can be availed of only when there is no appeal nor plain, speedy and adequate remedy in the ordinary course of law, we hold both in the affirmative. The DFA's function includes, among its other mandates, the determination of persons and institutions covered by diplomatic immunities, a determination which, when challenged, entitles it to seek relief from the court so as not to seriously impair the conduct of the country's foreign relations. The DFA must be allowed to plead its case whenever necessary or advisable to enable it to help keep the credibility of the Philippine government before the international community. When international agreements are concluded, the parties thereto are deemed to have likewise accepted the responsibility of seeing to it that their agreements are duly regarded. In our country, this task falls principally on the DFA as being the highest executive department with the competence and authority to so act in this aspect of the international arena.

GTZ vs. CA
There is some mystery surrounding the question if GTZ is an incorporated agency of the German government. Neither GTZ nor the OSG go beyond the claim that petitioner is the implementing agency of the Government of the Federal Republic of Germany. On the other hand, private respondents asserted before the Labor Arbiter that GTZ was a private corporation engaged in the implementation of development projects. The term by itself does not supply whether GTZ is incorporated or unincorporated, whether it is owned by the German state or by private interests, whether it has juridical personality independent of the German government or none at all. It is entirely possible that under German law, an entity such as GTZ or particularly GTZ itself has not been vested or has been specifically deprived the power and capacity to sue and/or be sued. Yet in the proceedings below and before this Court, GTZ has failed to establish that under German law, it has not consented to be sued despite it being owned by the Federal Republic of Germany. We adhere to the rule that in the absence of evidence to the contrary, foreign laws on a particular subject are presumed to be the same as those of the Philippines.

17