Political Law} PIL} Memory Aid} Made 2002} by Ateneo} 11 Pages

7/27/2019 Political Law} PIL} Memory Aid} Made 2002} by Ateneo} 11 Pages

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P O L I T I C A L L A WPUBLIC INTERNATIONAL LAW REVIEWER&MEMORYAID

ATENEO CENTRAL BAR OPERATIONS 2002Carrie, Aldrich, Evelyn, Thel, Gem, Ronald

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PUBLIC INTERNATIONAL LAW

International law is that branch of public law which regulates the relations ofStates and of other entities which have been granted international personality (e.g. the

UN). Modern international law after World War II, however, now deals not only with therelations between states, but also their relations with persons, natural or juridical (e.g.intl human rights law).

Distinction between a subject and object of international law

A subject is an entity that has rights and responsibilities under international law; itcan be a proper party in transactions involving the application of international law amongmembers of the international community. Subjects include: states, colonies, the HolySee, the United Nations.

An object is a person or thing in respect of which rights are held and obligations

assumed by the subject; it is not directly governed by the rules of international law; itsrights are received, and its responsibilities imposed, indirectly through the instrumentalityof an international agency. Traditionally, individuals have been considered merely asobjects, not subjects, of international law; however, modern IL now grants, primarilythrough treaties, a certain degree of international personality to individuals (e.g.individuals are granted by treaty the power to sue before the European Court of HumanRights).

Divisions of International Law

1) LAWS OF PEACE- governs the normal relations of States

2) LAWS OF WAR- rules during periods of hostility

3) LAWS OF NEUTRALITY- rules governing States not involved in the hostilities

Relation to Municipal Law

2 VIEWS:

1) DOCTINE OF INCORPORATION - rules of international law form part of the law ofthe land and no further legislative action is needed to make such rules applicable in

the domestic sphere.

a) Such is recognized in art. 2, sec. 2, as the Philippines "adopts thegenerally accepted principles of international law as part of the law of theland."

b) Rules of international law are given equal standing with, but are notsuperior to, national legislative enactments. Thus, the Constitution, asthe highest law of the land, may invalidate a treaty in conflict with it.

(Secretary of Justice v. Hon. Lantion and Mark Jimenez, Jan. 18,2000)

2) DOCTRINE OF TRANSFORMATION - the generally accepted rules of int'l law arenotper sebinding upon the State but must first be embodied in legislation enactedby the lawmaking body and so transformed into municipal law. Only when sotransformed will they become binding upon the State as part of its municipal law.


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2 THEORIES:

1) DUALISMdomestic and international law are independent of each other, as theyregulate different subject matters. IL regulates the relations of sovereign states,

while municipal law regulates the internal affairs of a state. Thus, no conflict canever arise between international and municipal law, because the two systems aremutually exclusive. If IL is applied within a state, it is only because it has beenexpressly incorporated by municipal law. The Philippines is a dualist state.

2) MONISMMonists have a unitary concept of law and see all law including bothinternational and municipal lawas an integral part of the same system. If conflictexists between international law and municipal law, international law must prevail.Germany is a monist state.

Sources of International Law

Article 38 of the Statute of the International Court of Justice (ICJ) is consideredthe authoritative enumeration of the sources of International Law.

A) PRIMARY

1. TREATY / INTERNATIONAL CONVENTIONS - Generally, a treaty only binds theparties. However, treaties may be considered a direct source of Int'l law whenconcluded by a sizable no. of States, and is reflective of the will of the family ofnations (in which case, a treaty is evidence of custom).

2. CUSTOM - Practices which, through persistent usage, have grown to be accepted byStates as legally binding.

2 Elements:

1. STATE PRACTICE a consistent and uniform external conduct of States.Generally, both what states say and what they do are considered statepractice.

2. OPINIO JURIS - State practice must be accompanied with the convictionthat the State is legally obligated to do so by int'l law, and not through merecourtesy or comity, or because of humanitarian considerations.

Q: What is 'INSTANT' CUSTOM?

A :Customary law may emerge even within a relatively short passage of time, if withinthat period, State Practice has been uniform and extensive. (ex. Law on the ContinentalShelf) Thus, int'l law does NOT always require a long period of time to elapse beforeconduct is considered customary.

3. GENERAL PRINCIPLES OF LAW - Principles common to most national systems oflaw; rules based on natural justice. Ex. good faith, estoppel, exhaustion of localremedies

B) SECONDARY

1. JUDICIAL DECISIONS - a subsidiary means for the determination of rules of law(e.g., determining what rules of customary IL exist) that is acceptable so long as theycorrectly interpret and apply int'l law.

Note: Even decisions of national courts, when applying int'l law, are acceptable. Ex.Principles on diplomatic immunity have been developed by judgments of nationalcourts.


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2. TEACHINGS OF PUBLICISTS -- The word 'Publicist' means 'learned writer.'Learned writings, like judicial decisions, can be evidence of customary law, and canalso play a subsidiary role in developing new rules of law.

2 Requisites:

1. Fair and impartial representation of law.

2. By an acknowledged authority in the field.

State

A ) ELEMENTS OF A STATE:A State should possess the following qualifications (Art. 1, Montevideo

Convention):

1) a permanent population;

2) a defined territory;

3) government;

4) capacity to enter into relations with other States

B) DISTINCTIONS BETWEEN SOVEREIGNTY AND INDEPENDENCE

A. SOVEREIGNTY is the broader term. It refers to the supreme and

uncontrollable power inherent in the State by which such State is governed.

It has 2 aspects :

1. INTERNAL- freedom of the State to manage its own affairs.

2. EXTERNAL- freedom of the State to direct its foreign affairs.

B. INDEPENDENCE is synonymous with external sovereignty. It is defined asthe power of a State to manage its external affairs without direction or interference fromanother State.

C) PRINCIPLES OF STATE SUCCESSION

A. STATE SUCCESSION is the substitution of one State by another, thelatter taking over the rights and some of the obligations of the former.

B. 2 types of State Succession:

1. UNIVERSAL- takes place when a State is completely annexed byanother, or is dismembered or dissolved, or is created as a result ofmerger of 2 or more States.

2. PARTIAL - takes place when a portion of the territory of a State loses

part of its sovereignty by joining a confederation or becoming aprotectorate or suzerainty.

C. Effects o f State Succession

1. The allegiance of the inhabitants of the predecessor State istransferred to the successor State.


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2. The political laws of the predecessor State are automaticallyabrogated but the non-political laws are deemed continued unlessexpressly repealed or contrary to the institutions of the new sovereign.

3. The public property of the predecessor State is acquired by thesuccessor State but not the tort liability of the former.

4. Treaties entered into by the predecessor State are not consideredbinding on the successor State except those dealing with local rightsand duties such as servitudes and boundaries.

D) SUCCESSION OF GOVERNMENT

1. In succession of government, the integrity of the original State is not affectedas what takes place is only a change in one of its elements, the government.

2. Effects of a change in government:

a. If effected by peaceful means, the new government inherits all rightsand obligations of the old government.

b. If effected by violence, the new government inherits all the rights ofthe old government. However, the new government may reject theobligations of the old government if they are of a political complexion.If the obligations are the consequence of the routinary act ofadministration of the old government, they should be respected.

E) TERRITORY

1. Methods us ed in defining the terr i toria l sea

a. Normal baseline method

Under this method, the territorial sea is drawn from the low-watermark of the coast to the breadth claimed, following its sinuositiesand curvatures but excluding the internal waters in bays and gulfs.

b. Straight baseline method

Straight lines are made to connect appropriate points on the coast

without departing radically from its general direction. The watersinside the lines are considered internal.

2. Some modes of acquisition:

a. Cession

It is a derivative mode of acquisition by which territory belonging toone state is transferred to the sovereignty of another state inaccordance with an agreement between them.

b. Subjugation

It is a derivative mode of acquisition by which the territory of onestate is conquered in the course of war and thereafter annexedand placed under sovereignty of the conquering state.

c. Prescription


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It is a derivative mode of acquisition by which territory belonging toone state is transferred to the sovereignty of another state byreason of the adverse and uninterrupted possession thereof bythe latter for a sufficiently long period of time.

F) RIGHT OF LEGATION

a. It is the right of a state to maintain diplomatic relations with other states.

b. Types: 1. Active- right to send diplomatic representatives

2. Passive- right to receive diplomatic representatives

Treaties

1) DEFINITION (Art. 2, Vienna Convention on the Law of Treaties)

A TREATY is:1) an international agreement2) concluded between States3) in written form4) governed by international law5) embodied in a single instrument or in 2 or more related instruments.

Q: If not in writ ing , is it st i l l considered a treaty?

A : Yes. Oral agreements between States are recognized as treaties under customaryinternational law (but are extremely rare nowadays).

2) DISTINGUISHED FROM EXECUTIVE AGREEMENTS

A. Subject matter of Treaties [Code: PCI]

1. Political Issues

2. Changes in National Policy

3. Involve international arrangements of a permanent character

B. Subject Matter of Executive Agreements [Code: TAAI ]

1. Have Transitory effectivity

2. Adjustment of details carrying out well-established national policies andtraditions

3. Arrangements of temporary nature

4. Implementation of treaties, statutes, well-established policies

C. Need for ratification by the Senate

1. TREATIES AND INT'L AGREEMENTS -- While the Constitution vests thepower to NEGOTIATE treaties with the President, such must be RATIFIED bythe 2/3 of the Senate to become valid and effective (Art.7, Sec 21)

2. EXECUTIVE AGREEMENTSdo not need to be ratified by the Senate


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3) PRINCIPAL RULES OF INTERNATIONAL LAW IN CONNECTION WITH TREATIES

A. PACTA SUNT SERVANDA- Every treaty in force is binding upon the parties andmust be performed by them in good faith.

- this applies despite hardships on the contracting State such as conflictsbetween the treaty and its Constitution.

B. REBUS SIC STANTIBUS -A party is not bound to perform a treaty if there has beena fundamental change of circumstances since the treaty was concluded.

1) it has been described as the exception to the rule ofpacta sunt servanda.

2) justifies the non-performance of a treaty obligation if the subsequent condition inrelation to which the parties contracted has changed so materially andunexpectedly as to create a situation in which the exaction of performance

would be unreasonable.

3) Rebus sic stantibus may not be invoked as a ground for terminating orwithdrawing from a treaty:

a. if the treaty establishes a boundary

b. if the 'fundamental change' is the result of a breach by the party invoking it ofan obligation under the treaty or of any other obligation owed to any other partyto the treaty.

C. JUS COGENS - a rule which has the status of a preemptory (i.e., absolute,

uncompromising) norm of international law.

Elements:

1. a norm accepted and recognized

2. by the int'l community of States as a whole

3. as a norm from which no derogation is permitted.

4. It can only be modified by a subsequent norm having the same character.

If a treaty, at the time of its conclusion, conflicts with jus cogens, it is void.

Examples:(1) prohibition against the unlawful use of force;

(2) prohibition against piracy, genocide, and slavery

State Responsibility

(1) it is the doctrine which holds a state responsible for any injurysustained by an alien within its jurisdiction. Because of an international

wrong imputable to it, the state will be responsible if it is shown that itparticipated in the act or omission complained of or was remiss in redressingthe resultant wrong.

(2) Types of State responsibility

a. Direct responsibility-attaches to the state if the wrongful act/omissionwas effected through any of its superior organs acting on its behalf


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b. Indirect responsibility

(3) Condit ions fo r the enforcem ent of the doctr ine of state responsib i l i ty

a. The injured alien must first exhaust all local remedies

b. He must be represented in the int'l Claim for damages by his own state(ordinarily, individuals have no standing to bring a claim beforeinternational law).

Settlement of Disputes

1) AMICABLE METHODS

A. NEGOTIATION- discussion by the parties of their respective claims

and counterclaims with a view to the just and orderly adjustment.

B. INQUIRY- an investigation of the points in question with the view thatthis will contribute to the solution of the problem

C. GOOD OFFICES- method by which a 3rd party attempts to bring thedisputing states together in order that they may be able to discuss theissues in contention.

D. MEDIATION- 3rd party actively participates in the discussion in orderto reconcile the conflicting claims. Suggestions of mediator aremerely persuasive

E. CONCILIATION- 3rd party also actively participates in order to settlethe conflict. Suggestions of conciliator are also not binding. Asdistinguished from mediation, the services of the conciliator weresolicited by the parties in dispute.

F. ARBITRATION- process by which the solution of a dispute isentrusted to an impartial tribunal usually created by the partiesthemselves under a charter known as the compromis. Theproceedings are essentially judicial and the award is, by previousagreement, binding on the parties.

2) HOSTILE/NON-AMICABLE METHODS

A. RETORSION - is a lawful act which is designed to injure thewrongdoing State.

Ex.: cutting off economic aid (this is lawful because there is no legalobligation to provide economic aid).

B. REPRISAL - an act which would normally be illegal but which isrendered legal by a prior illegal act committed by the State againstwhich the reprisal is directed; it is a form of retaliation against the prior

illegal act.

Reprisals may be used only when other means of redress (e.g.protests and warnings) have failed.


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SPECIAL TOPICS

EXTRADITION

1) EXTRADITION is the surrender of a person by one state to another state where he iswanted for prosecution or, if already convicted, for punishment.

2) Basis of Extradition: a treaty. Outside of treaty, there is no rule in international lawcompelling a State to extradite anyone. Such may be done, however, as a gesture ofcomity.

3) Principles:

a) Principle of Speciality - a fugitive who is extradited may be tried only for thecrime specified in the request for extradition and such crime is included in the list ofextraditable offenses in the treaty.

b) Under the Political offense exception, most extradition treaties provide thatpolitical and religious offenders are not subject to extradition.

Q: The Phil ippines entered into an extradit ion treaty with another coun try wh ich

provid ed that it would apply crimes comm itted before its effect iv i ty. The coun try

asked the Phil ippines to extradite X for a crime committed before the effect iv i ty of

the treaty. X argued the extradit ion wou ld violate the prohibit ion against ex post

facto laws. Is he right?

A: No. The constitutional prohibition applies to penal laws only. The extradition treaty isnot a penal law. (Wright v. CA, 235 SCRA 341)

SECRETARY OF JUSTICE V.HON.LANTION AND MARK JIMENEZ (G.R. # 139465, Oct. 17,2000, overturningthe Courts previous decision in 322 SCRA 160 dated Jan. 18, 2000)

By virtue of an extradition treaty between the US and the Philippines, the USrequested for the extradition of Mark Jimenez for violations of US tax and election laws.Pending evaluation of the extradition documents by the Philippine government, Jimenezrequested for copies of the US' extradition request. The Secetary of Justice denied thatrequest.

ISSUE:During the evaluation stage of the extradition proceedings, is private respondententitled to the two basic due process rights of notice and hearing?

HELD: Private respondent is bereft of the right to notice and hearing during theevaluation stage of the extradition process. Extradition is a proceeding sui generis. It isnot a criminal proceeding which will call into operation all the rights of an accusedguaranteed by the Bill of Rights. The process of extradition does not involve thedetermination of the guilt or innocence of an accused. His guilt or innocence will beadjudged in the court of the state where he will be extradited.

Dissent (original decis ion): Under the extradition treaty, the prospective extraditeemay be provisionally arrested pending the submission of the request. Because of thispossible consequence, the evaluation process is akin to an administrative agencyconducting an investigative proceeding, and partakes of the nature of a criminal

investigation. Thus, the basic due process rights of notice and hearing areindispensable.

Assuming that the extradition treaty does not allow for such rights, theConstitutional right to procedural due process must override treaty obligations. Whenthere is a conflict between international law obligations and the Constitution, theConstitution must prevail.


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UNITED NATIONS ORGANS

1. GENERAL ASSEMBLY

Composi t ion:All members of the UN (as of 1996: 185 member States)

Funct ion: The GA may discuss any question or matter within the scope of theCharter or relating to the powers and functions of any other organ. It is also vested with

jurisdiction over matters concerning internal machinery and operations of the UN.

2. SECURITY COUNCIL

Composi t ion: 15 members:

a) 5 Permanent Members (China, France, UK, US, Russia)

b) 10 non-permanent: elected for 2 year terms by the GeneralAssembly.

Function: the maintenance of international peace and security.

Q: What is the "double veto"?

A: In all non-procedural matters, each permanent member is given a 'veto' - a SecurityCouncil decision is ineffective if even one permanent member votes against it. The vetodoes not ordinarily apply to Procedural matters.

However, a permanent member may exercise a 'double veto' when it vetoes any

attempt to treat a question as procedural, and then proceed to veto any draft resolutiondealing with that question.

3. SECRETARIAT-CHIEF ADMINISTRATIVE ORGAN OF THE UN

4. ECONOMIC AND SOCIAL COUNCIL -organ charged with promoting social progress andbetter standards of life in larger freedom

5. TRUSTEESHIP COUNCIL - organ charged with administration of Int'l TrusteeshipSystem.

6. INTERNATIONAL COURT OF JUSTICE-judicial organ of the UN.

USE OF FORCE

Under Article 2(4) of the UN Charter, all member States are bound to refrain fromthe threat or use of force against the territorial integrity or political independenceof a State.

Recognized exceptions:

1) self-defense

2) military action taken or authorized by the UN or competent Regional organizations(such as NATO).

CALVO CLAUSE

A CALVO CLAUSE is a provision inserted in contracts, in which the foreigneragrees in advance not to seek the diplomatic protection of his national State.


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In general, International Courts have disregarded such clauses, as the right todiplomatic protection is a right which belongs to a State, and waiver from an individualdoes not bind his State.

STATE IMMUNITY (JURE IMPERII and JURE GESTIONIS)

Originally, under customary international law the doctrine of absolute stateimmunity applied, covering all areas of State activity and recognizing only very narrowexceptions.

Nowadays, the rule is to adopt a doctr ine of qual i f ied immuni ty -- that is,immunity is granted to foreign States only in respect of their governmental acts (acts

ju re imper i i), not in respect of their commercial acts (actsju re ges tion is).

DIPLOMATIC IMMUNITY

Diplomatic Immunity is a principle of customary international law that grantsimmunity to diplomatic representatives, in order to uphold their dignity as representativesof their respective states and to allow them free and unhampered exercise of theirfunctions.

In the Philippines, immunity is claimed by request of the foreign state forendorsement by the Department of Foreign Affairs. The determination by the executivedepartment is considered a political question that is conclusive upon Philippine Courts.

INTERNATIONAL CONTRACTS

Usually, agreements between States and foreign corporations contain

stipulations as to which national legal system governs the contract. Occasionally,however, in case of powerful multinational companies, such contracts are placed notunder any single system of municipal law, but under international law, general principlesof law, or the provisions of the contract itself.

The reason for concluding these so-called internationalized contracts is toestablish a balance between the parties and prevent the State party from evading itsobligations under the contract by changing its own internal law. This is mostly securedby an arbitration clause referring disputes under the agreement to an international body.

THE INTERNATIONAL COURT OF JUSTICE

1) "Optional Clause"of the ICJ:

As a rule, the ICJ can operate only on the basis of the consent of States to itsjurisdiction. Such may take the form of a special agreement between States to submitan exist ingdispute before the Court (i.e. compromis).

However, under the 'optional clause' (art. 36(2), ICJ Statute), a State maydeclare in advancethat they recognize the jurisdiction of the Court as compulsory ipsofactoand without need of special agreement, in relation to any other State accepting thesame obligation, in all legal disputes concerning:

a. the interpretation of a treaty;

b. any question of international law

c. existence of any fact which, if established, would constitute breach ofinternational obligation; and


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d. nature or extent of reparation to be made for breach of internationalobligation.

2)STARE DECISIS does not apply to the ICJ. Under the statute of the Court, previous

decisions have no binding force; in practice, however, the Court always takes pastdecisions into account.

Q: What do es it mean to deci de a case EX AEQUO ET BONO?

A : It is to rule in justice and fairness -- equity overrides all other rules of law. The ICJhas no power to decide a case ex aequo et bono, unless all parties agree thereto[art. 38(2), ICJ Statute].

Q: Who h as standing before the ICJ?

A : Only States may be parties in contentious proceedings before the ICJ (art 34, ICJStatute).

Political Law} PIL} Memory Aid} Made 2002} by Ateneo} 11 Pages

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