PIL - REVIEWER
Modes of Acquisition of Territory
(1) By Original Title a. Discovery and Occupation b. Accretion c. "Sector Principle" (2) By Derivative Title a. Prescription b. Cession c. Conquest/Subjugation Other Modes (a) Dereliction/Abando nment (b) Erosion (c) Revolution (d) Natural Causes Cession - a derivative mode of acquisition by which territory belonging to 1 State is transferred to the sovereignty of another State in accordance with an agreement between them Conquest ★ derivative mode of acquisition whereby the territory of 1 State is conquered in the course of war and thereafter annexed to and placed under the sovereignty of the conquering State Accretion ★ the increase in the land area of a State caused by the operation of the forces of nature, or artificially, through human labor
On 31 October 2001, members of Ali Baba, a political extremist organization based in and under the protection of Country X and espousing violence worldwide as a means of achieving its objective, planted high-powered explosives and bombs at the International Trade Tower (ITT) in Jewel City in Country Y, a member of the United Nations. As a result of the bombing and the collapse of the 100-story twin towers, about 2000 people, including women and children were killed or injured and billions of dollars in property were lost. Immediately after the incident, Ali Baba, speaking through its leader Bin Derdandat, admitted and owned responsibility for the bombing of ITT, saying that it was done to pressure Country Y to release captured members of the terrorist group. Ali Baba threatened to repeat its terrorist acts against Country Y if the latter and its allies failed to accede to Ali Baba's demands. In response, Country Y demanded that Country X surrender and deliver Bin Derdandat to the government authorities of Country Y for the purpose of trial and "in the name of justice." Country X refused to accede to the demand of Country Y. What action or actions can Country Y legally take against Ali Baba and Country X to stop the terrorist activities of Ali Baba and dissuade Country X from harboring and giving protection to the terrorist organization? Support your answer with reasons. (2002 Bar)
(1) Country Y may exercise the right of self- defense, as provided under Article 51 of the UN Charter "until the Security Council has taken measure necessary to maintain international peace and security." Self-defense enables Country Y to use force against Country X as well as against the Ali Baba organization. (2) It may bring the matter to the Security Council which may authorize sanctions against Country X, including measure invoking the use of force. Under Article 4 of the UN Charter, Country Y may use force against Country X as well as against the Ali Baba organization by authority of the UN Security Council.
Distinguish recognition of State from recognition of Government. (1975 Bar)
(1) Recognition of state carries with it the recognition of government since the former implies that a state recognized has all the essential requisites of a state at he time recognition is extended. (2) Once recognition of state is accorded, it is generally irrevocable. Recognition of government, on the other hand, may be withheld from a succeeding government brought about by violent or unconstitutional means.
2 kinds of government
1. De jure - The one with a legal title but not power of control 2. de facto - the one with power of control but without legal title.
Principal organs of UN
1. General Assembly (GA) This is the central organ of the UN. The principal deliberative body of the organization and is vested with jurisdiction over matters concerning the internal machinery and operations of the UN. Some Important Functions of the GA 1. Deliberative - discuss principles regarding maintenance of international peace and security and may take appropriate measures toward this end. 2. Supervisory - receives and considers reports from the other organs of the UN. 3. Elective - important voting functions are also vested in the GA, such as the election of the non-permanent members of the SC, some members of the TC and all the members of the ESC, and with the SC selects the judges of the ICJ; also participates in the amendment of the Charter. 4. Budgetary - controls the finances of the UN 5. Constituent - amendment of the charter. 2. Security Council (SC) 3. Economic and Social Council (ESC) 4. Trusteeship Council (TC) 5. International Court of Justice (ICJ) 6. Secretariat
WHEN INTERVENTION ALLOWED, Exceptions
1. Intervention as an Act of Individual and Collective Self-Defense 2. Intervention by Treaty Stipulation or by Invitation "Intervention by Invitation" ★ Presupposes that the inviting State is not a mere puppet of the intervening State ★ EX.: Hungary In 1956, Hungary was in internal turmoil, and asked the Soviet forces to intervene While the intervention was upon invitation, it was still condemned because the Hungarian government was a mere Soviet puppet 3. By UN Authorization and Resolution ★ EX.: 1. Korean War In fact, it is UN itself that intervened 4. On Humanitarian Grounds
3 GRAND DIVISIONS
1. Laws of Peace - normal relations between states in the absence of war. 2. Laws of War - relations between hostile or belligerent states during wartime. 3. Laws of Neutrality - relations between a non- participant state and a participant state during wartime. This also refers to the relations among non-participating states.
Qualifications for Membership
1. Must be State 2. Must be Peace-loving 3. Must accept the obligations as member 4. In the judgment of the Organization, be able and willing to carry out such obligation.
BASIS OF PIL - 3 SCHOOLS OF THOUGHT [Why are rules of international law binding?]
1. Naturalist - ★PIL is a branch of the great law of nature - the sum of those principles which ought to control human conduct, being founded on the very nature of man as a rational and social being. [Hugo Grotius] ★ PIL is binding upon States 2. Positivist - ★ Basis is to be found in the consent and conduct of States. ★ Tacit consent in the case of customary international law. ★ Express in conventional law. ★ Presumed in the general law of nations. [Cornelius van Bynkershoek] 3. Groatians or Eclectics - ★Accepts the doctrine of natural law, but maintained that States were accountable only to their own conscience for the observance of the duties imposed by natural law, unless they had agreed to be
Public International Law Distinguished From Private International Law/Conflict of Laws
1. Nature - Public is international in nature Private International Law is domestic or municipal in nature 2. Source - PIL - International customs, international conventions, general principles of law, judicial decisions, writings of most qualified authority. PRIL - Consists mainly from the lawmaking authority of each state 3. Subject - PIL - Applies to relations states inter se and other international persons. PRIL - Regulates the relations of individuals whether of the same nationality or not 4. Settlement of dispute - PIL - disputes are resolved through international modes of settlement such as negotiations, reprisals or even war. PRIL - recourse is with municipal tribunals through local administrative and judicial processes. 5. Responsibility for violation PIL - collective in a sense that it attaches to the state and its nationals PRIL - generally only entails individual responsibility
EFFECTS OF A CHANGE IN SOVEREIGNTY
1. Political Laws are deemed ABROGATED. Q: Why? A: They govern relations between the State and the people. 2. Non-Political Laws generally continue in operation. Q: Why? A: Regulates only private relations XPN: (a) Changed by the new sovereign (b) Contrary to institutions of the new sovereign
RIGHTS OF THE STATE
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 1. Right to Existence and Self-Defense - ★ The most elementary and important right of a State ★ All other rights flow from this right ★ Art. II, Sec. 2 - "The Philippines renounces war as an instrument of national policy..." ★ This prohibits an offensive/aggressive war ★ But, it allows DEFENSIVE WAR!
Requisites of Belligerency [COWS]
1. an organized civil government that has control and direction over the armed struggle launched by the rebels; ★ a "provisional government" 2. o ccupation of a substantial portion of the state's territory; ★ more or less permanent occupation ★ legitimate government must use superior military force to dislodge the rebels 3. s eriousness of the struggle, which must be so widespread thereby leaving no doubt as to the outcome; and ★ must be so widespread, leaving no doubt as to the outcome ★ Q: Has the CPP/NPA and MILF complied with these conditions? A: NO! BUT, there are some indications they are striving to meet the conditions. They executed common criminals, after a trial. It is like saying they have a government
SUBJECTS OF INTERNATIONAL LAW
2 Concepts: 1. Traditional concept ★ Only States are considered subjects of international law. 2. Contemporary concept ★ Individuals and international organizations are also subjects because they have rights and duties under international law. (Liang vs. People, GRN 125865 [26 March 2001]) The STATE as subject of International Law State is a community of persons more or less numerous, permanently occupying a definite portion of territory, independent of external control, and possessing an organized government to which the great body of inhabitants render habitual obedience.
RECOGNITION OF STATE
2 Schools of Thought Constitutive School - recognition is the act which gives to a political entity international status as a State; - it is only through recognition that a State becomes an International Person and a subject of international law - thus, recognition is a legal matter—not a matter of arbitrary will on the part of one State whether to recognize or refuse to recognize another entity but that where certain conditions of fact exist, an entity may demand, and the State is under legal duty to accord recognition Declaratory School - recognition merely an act that declares as a fact something that has hitherto been uncertain - it simply manifests the recognizing State's readiness to accept the normal consequences of the fact of Statehood - recognition is a political act, i.e., it is entirely a matter of policy and discretion to give or refuse recognition, and that no entity possesses the power, as a matter of legal right, to demand recognition - there is no legal right to demand recognition - followed by most nations
BELLIGERENCY
2 Senses of Belligerency 1. State of War between 2 or more States☀ Belligeren cy☀ the States at war are called "Belligerent States" 2. Actual Hostilities amounting to Civil War within a State ☀ Insurgency ☀ there is just 1 State ☀ presuppos es the existence of a rebel movement
Q: A treaty was concurred between RP and China. Later, a law was passed which has conflicting provisions with the treaty. Rule.
A treaty is part of the law of the land. But as internal law, it would not be superior to a legislative act, rather it would be in the same class as the latter. Thus, the latter law would be considered as amendatory of the treaty, being a subsequent law under the principle lex posterior derogat priori. (Abbas vs. COMELEC)
ELEMENTS OF A STATE:
A. People - the inhabitants of the State ★ must be numerous enough to be self-sufficing and to defend themselves and small enough to be easily administered and sustained. ★ the aggregate of individuals of both sexes who live together as a community despite racial or cultural differences B. Territory - the fixed portion of the surface of the earth inhabited by the people of the State C. GOVERNMENT - the agency or instrumentality of which the will of the people are expressed and realized D. SOVEREIGNTY - The supreme and uncontrollable power inherent in a State by which the state is governed.
SOURCES
A. Primary I. Treaties or International Conventions - 2 KINDS: 1. Contract Treaties [Traite-Contrat] - ★ Bilateral arrangements concerning matters of particular or special interest to the contracting parties ★ Source of "Particular International Law" ★ BUT: May become primary sources of international law when different contract treaties are of the same nature, containing practically uniform provisions, and are concluded by a substantial number of States EX.: Extradition Treaties 2. Law-Making Treaty [Traite-Loi] - ★Concluded by a large number of States for purposes of: 1. Declaring, confirming, or defining their understanding of what the law is on a particular subject; 2. Stipulating or laying down new general rules for future international conduct; 3. Creating new international institutions ★ Source of "General International Law" II. International Custom - Matters of international concern are not usually covered by international agreements and many States are not parties to most treaties; international custom remains a significant source of international law, supplementing treaty rules. Custom is the practice that has grown up between States and has come to be accepted as binding by the mere fact of persistent usage over a long period of time It exists when a clear and continuous habit of doing certain things develops under the CONVICTION that it is obligatory and right. (Opinio Juris) III. General Principles of Law Recognized by Civilized Nations Salonga opines that resort is taken from general principles of law whenever no custom or treaty provision is applicable. The idea of "civilized nations" was intended to restrict the scope of the provision to European States, however, at present the term no longer have such connotation, thus the term should include all nations. Examples of general principles are: estoppel, pacta sunt servanda, consent, res judicata and prescription; including the principles of justice, equity and peace. IV. Judicial decisions The doctrine of stare decisis is not applicable in international law per Art.59 of the ICJ which states that "The decision of the Court has no binding force except between the parties and in respect to that particular case." This means that these decisions are not a direct source, but they do exercise considerable influence as an impartial and well-considered statement of the law by jurists made in the light of actual problems which arise before them, and thus, accorded with great respect. This includes decisions of national courts, although they are not a source of law, the cumulative effect of uniform decisions of the courts of the most important States is to afford evidence of international custom. V. Teachings of authoritative publicists - including learned writers Such works are resorted to by judicial tribunals not for the speculation of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is. [Mr. Justice Gray in Paquete Habana case, 175 U.S. 677.]
Q: The State of Nova, controlled by an authoritarian government, had unfriendly relations with its neighboring state, America; Bresia, another neighboring state, had been shipping arms and ammunitions to Nova for use in attacking America. To forestall am attack, America placed floating mines on the territorial waters surrounding Nova. America supported a group of rebels organized to overthrow the government of Nova and to replace it with a friendly government. Nova decided to file a case against America in the International Court of Justice. 1) What grounds may Nova's cause of action against America be based? 2) On what grounds may America move to dismiss the case with the ICJ? 3) Decide the case. (1994 Bar)
A: 1) If Nova and America are members of the UN, Nova can premise its cause of action on a violation of Art. 2(4) of the UN Charter, which requires members to refrain from threat or use of force against the territorial integrity of political independence of any state. If either or both America and Nova are not members of the UN, Nova may premise its cause of action of violation of the non-use of force principle in customary international law which exist parallel as to Art. 2(4) of the UN Charter. In the case concerning the Military and Parliamentary activities in and against Nicaragua (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. Aggression is the use of armed force by a state against the sovereignty or territorial integrity or political independence of another state or in any other manner inconsistence with the UN Charter. 2) By virtue of the principle of sovereign immunity, no sovereign state can be made a party to a proceeding before the ICJ unless it has given its consent. If America has not accepted the jurisdiction of the ICJ, it can invoke the defense of lack of jurisdiction. Even if it has accepted the jurisdiction of the ICJ but the acceptance limited and the limitation applies to the case, it may invoke such limitations of its consent as a bar to the assumption of jurisdiction. If the jurisdiction has been accepted, America can involve the principle of anticipatory self-defense recognized under customary international law because Nova is planning to launch an attack against America by using the arms it brought from Bresia. 3) If jurisdiction over America is established, the case should be decided in favor of Nova, because America violated the principle against the use of force and the principle of non-intervention. The defense of anticipatory self-defense cannot be sustained because there is no showing that Nova had mobilized to such an extent that if America were to wait for Nova to strike first it would not be able to retaliate. However, if jurisdiction over America is not established, the case should be decided in its favor because of the principle of sovereign immunity.
What are the effects when Congress declares a state of war?
A: 1. Art. VI, Sec. 23 - "In times of war...the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof." 2. Art. VII, Sec. 18 - "The President shall be the Commander-in-Chief of all armed forces...and whenever it becomes necessary, he may call out such armed forces to prevent or suppress... invasion...In case, invasion...when the public safety requires it, he may, for a period not exceeding 60 days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law..." ☀ This is in line with the UN Charter, which also renounces war ☀ As charter-member of the UN, our Constitution also renounces war as an instrument of national policy
Who can declare war?
A: No one! The Constitution has withheld this power from the government. What the Constitution allows is a declaration of a "State of War". Under Art. VI, Sec. 23(1) - "Congress, by a vote of 2/3 of both Houses, in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war. This means that we are already under attack
Q: Was there a case of suspended allegiance during the Japanese occupation?
A: None. Adoption of the petitioner's theory of suspended allegiance would lead to disastrous consequences for small and weak nations or states, and would be repugnant to the laws of humanity and requirements of public conscience, for it would allow invaders to legally recruit or enlist the quisling inhabitants of the occupied territory to fight against their own government without the latter incurring the risk of being prosecuted for treason. To allow suspension is to commit political suicide.
Q: What are these generally accepted principles?
A: Pacta sunt servanda, sovereign equality among states, principle of state immunity; right of states to self-defense
What is the effect of Japanese occupation to the sovereignty of the U.S. over the Philippines?
A: Sovereignty is not deemed suspended although acts of sovereignty cannot be exercised by the legitimate authority. Thus, sovereignty over the Philippines remained with the U.S. although the Americans could not exercise any control over the occupied territory at the time. What the belligerent occupant took over was merely the exercise of acts of sovereignty.
Distinguish between Spanish secession to the U.S. and Japanese occupation during WWII regarding the political laws of the Philippines.
A: There being no change of sovereignty during the belligerent occupation of Japan, the political laws of the occupied territory are merely suspended, subject to revival under jus postliminium upon the end of the occupation. In both cases, however, non-political laws, remains effective.
What comprises the Philippine Archipelago?
A: §1, Article 1, 1987 Philippine Constitution. "The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines."
Q: What is the status of an individual under public international law? (1981 Bar)
According to Hanks Kelson, "while as a general rule, international law has as its subjects states and obliges only immediately, it exceptionally applies to individuals because it is to man that the norms of international law apply, it is to man whom they restrain, it is to man who, international law thrusts the responsibilities of law and order."
State B, relying on information gathered by its intelligence community to the effect that its neighbor, State C, is planning an attack on its nuclear plan and research institute, undertook a "preventive" attack in certain bases on State C located near the border of the two states. As a result, State C presented the incident to the UN General Assembly but the latter referred it to the UN Security Council as a matter, which disturbs or threatens "international peace and security". State B argued that it was acting within the legal bounds of Article 51 of the UN Charter and that it was a permitted use of force in self-defense and against armed attack. Is State B responsible under International Law? Did State B act within the bounds set forth in the UN Charter on the use of force in self- defense? (1985 Bar)
An armed attack is not a requirement for the exercise of the right of self-defense. However, the attack of State B on State C cannot be justified as an act of self-defense under Art. 51 of the UN Charter considering that the danger perceived by State B was not imminent. State B ought to have exhausted peaceful and pacific methods of settlements instead of resorting to the use of force.
When Use of Force is Allowed under the UN Charter By UNSC Resolution - Arts. 41 and 42
Art. 41 - "The SC may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the UN to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations." Art. 42 - "Should the SC consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the UN." In the exercise of right of self-defense, against armed attacks - Art. 51: "Nothing in the present charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the UN, until the SC has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self- defense shall be immediately reported to the SC and shall not in any way affect the authority and responsibility of the SC under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security."
Discuss the Status of the Vatican and the Holy See in International Law. Held:
Before the annexation of the Papal States by Italy in 1870, the Pope was the monarch and he, as the Holy See, was considered a subject of International Law. With the loss of the Papal States and the limitation of the territory under the Holy See to an area of 108.7 acres, the position of the Holy See in International Law became controversial. In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy recognized the exclusive dominion and sovereign jurisdiction of the Holy See over the Vatican City. It also recognized the right of the Holy See to receive foreign diplomats, to send its own diplomats to foreign countries, and to enter into treaties according to International Law. The Lateran Treaty established the statehood of the Vatican City "for the purpose of assuring to the Holy See absolute and visible independence and of guaranteeing to it indisputable sovereignty also in the field of international relations." In view of the wordings of the Lateran Treaty, it is difficult to determine whether the statehood is vested in the Holy See or in the Vatican City. Some writers even suggested that the treaty created two international persons - the Holy See and Vatican City. The Vatican City fits into none of the established categories of states, and the attribution to it of "sovereignty" must be made in a sense different from that in which it is applied to other states. In a community of national states, the Vatican City represents an entity organized not for political but for ecclesiastical purposes and international objects. Despite its size and object, the Vatican City has an independent government of its own, with the Pope, who is also head of the Roman Catholic Church, as the Holy See or Head of State, in conformity with its traditions, and the demands of its mission in the world. Indeed, the world- wide interests and activities of the Vatican City are such as to make it in a sense an "international state." One authority wrote that the recognition of the Vatican City as a state has significant implication - that it is possible for any entity pursuing objects essentially different from those pursued by states to be invested with international personality. Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy See and not in the name of the Vatican City, one can conclude that in the Pope's own view, it is the Holy See that is the international person. The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The Holy See, through its Ambassador, the Papal Nuncio, has had diplomatic representations with the Philippine government since 1957. This appears to be the universal practice in international relations. (Holy See, The v. Rosario, Jr., 238 SCRA 524, 533-534, Dec. 1, 1994, En Banc [Quiason])
GA Voting Rules
Each member or delegation has 1 vote in the GA. Important Questions are decided by 2/3 majority of those present and voting. All other matters, including the determination of whether a question is important or not, are decided by simple majority.Important Questions include: a) peace and security b) membership c) election d) trusteeship system e) budget
Will the subsequent discovery of weapons of mass destruction in Iraq after its invasion by the US justify the attack initiated by the latter?
Even if Iraq's hidden arsenal is discovered - or actually used - and the United States is justified in its suspicions, that circumstance will not validate the procedure taken against Iraq. It is like searching a person without warrant and curing the irregularity with the discovery of prohibited drugs in his possession. The process cannot be reversed. The warrant must first be issued before the search and seizure can be made. The American invasion was made without permission from the Security Council as required by the UN Charter. Any subsequent discovery of the prohibited biological and chemical weapons will not retroactively legalize that invasion, which was, legally speaking, null and void ab initio. (Justice Isagani A. Cruz, in an article entitled "A New World Order" written in his column "Separate Opinion" published in the March 30, 2003 issue of the Philippines Daily Inquirer)
Q: Distinguish briefly but clearly between the flag state and the flag of convenience. (2004 Bar)
Flag state means a ship has the nationality of the flag state it flies, but there must be a genuine link between the state and the ship. (Article 91 of the Convention of the Law of the Sea.) 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, Cases and Materilas on International Law, 5th ed., 1998, p. 425.)
RELATIONS BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW
From the Viewpoint of Doctrine 1. Dualists - ★International Law and Municipal Law are two completely separate realms. 2. Monists - ★Denies that PIL and Municipal Law are essential different. ★In both laws, it is the individual persons who in the ultimate analysis are regulated by the law. That both laws are far from being essentially different and must be regarded as parts of the same juristic conception. For them there is oneness or unity of all laws. ★PIL is superior to municipal law— international law, being the one which determines the jurisdictional limits of the personal and territorial competence of States. From the Viewpoint of Practice International Tribunals ★PIL superior to Municipal Law ★Art. 27, Vienna Convention in the law of Treaties - A state "may not invoke the provisions of its internal law as justification for its failure to perform a treaty" ★State legally bound to observe its treaty obligations, once signed and ratified 2. Municipal Sphere - depends on what doctrine is followed: Doctrine of Incorporation - Rules of international law form part of the law of the land and no further legislative action is needed to make such rules applicable in the domestic sphere. [Sec. of Justice v. Lantion GRN 139465, Jan. 18, 2000] This is followed in the Philippines: Art. II, Sec. 2 - "The Philippines...adopts the generally accepted principles of international law as part of the law of the land..." However, no primacy is implied.
FACTS: A possible conflict between the US-RP Extradition Treaty and Philippine law ISSUE: WON, under the Doctrine of Incorporation, International Law prevails over Municipal Law
HELD: NO. Under the doctrine of incorporation, rules of international law form part of the law of the land and no further legislative action is needed to make such rules applicable in the domestic sphere. The doctrine of incorporation is applied whenever local courts are confronted with situations in which there appears to be a conflict between a rule of international law and the provisions of the local state's constitution/statute. First, efforts should first be exerted to harmonize them, so as to give effect to both. This is because it is presumed that municipal law was enacted with proper regard for the generally accepted principles of international law in observance of the incorporation clause. However, if the conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law, jurisprudence dictates that the municipal courts should uphold municipal law. This is because such courts are organs of municipal law and are accordingly bound by it in all circumstances. The fact that international law was made part of the law of the land does not pertain to or imply the primacy of international law over national/municipal law in the municipal sphere. The doctrine of incorporation, as applied in most countries, decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments. In case of conflict, the courts should harmonize both laws first and if there exists an unavoidable contradiction between them, the principle of lex posterior derogat priori - a treaty may repeal a statute and a statute may repeal a treaty - will apply. But if these laws are found in conflict with the Constitution, these laws must be stricken out as invalid. In states where the constitution is the highest law of the land, such as in ours, both statutes and treaties may be invalidated if they are in conflict with the constitution. Supreme Court has the power to invalidate a treaty - Sec. 5(2)(a), Art. VIII, 1987 Constitution
What is the doctrine of incorporation? How is it applied by local courts?
Held: Under the doctrine of incorporation, rules of international law form part of the law of the land and no further legislative action is needed to make such rules applicable in the domestic sphere. The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted with situations in which there appears to be a conflict between a rule of international law and the provisions of the Constitution or statute of the local state. Efforts should first be exerted to harmonize them, so as to give effect to both since it is to be presumed that municipal law was enacted with proper regard for the generally accepted principles of international law in observance of the Incorporation Clause in Section 2, Article II of the Constitution. In a situation however, where the conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law, jurisprudence dictates that municipal law should be upheld by the municipal courts for the reason that such courts are organs of municipal law and are accordingly bound by it in all circumstances. The fact that international law has been made part of the law of the land does not pertain to or imply the primacy of international law over national or municipal law in the municipal sphere. The doctrine of incorporation, as applied in most countries, decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments. Accordingly, the principle of lex posterior derogat priori takes effect - a treaty may repeal a statute and a statute may repeal a treaty. In states where the Constitution is the highest law of the land, such as the Republic of the Philippines, both statutes and treaties may be invalidated if they are in conflict with the Constitution. (Secretary of Justice v. Hon. Ralph C. Lantion, G.R. No. 139465, Jan. 18, 2000, En Banc [Melo])
Q: Is sovereignty really absolute and all- encompassing? If not, what are its restrictions and limitations?
Held: While sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly or impliedly, as a member of the family of nations. By the doctrine of incorporation, the country is bound by generally accepted principles of international law, which are considered to be automatically part of our own laws. One of the oldest and most fundamental rules in international law is pacta sunt servanda - international agreements must be performed in good faith. A state which has contracted valid international obligations is bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of the obligations. By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their voluntary act, nations may surrender some aspects of their state power in exchange for greater benefits granted by or derived from a convention or pact. After all, states, like individuals, live with coequals, and in pursuit of mutually covenanted objectives and benefits, they also commonly agree to limit the exercise of their otherwise absolute rights. Thus, treaties have been used to record agreements between States concerning such widely diverse matters as, for example, the lease of naval bases, the sale or cession of territory, the termination of war, the regulation of conduct of hostilities, the formation of alliances, the regulation of commercial relations, the settling of claims, the laying down of rules governing conduct in peace and the establishment of international organizations. 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. (Tanada v. Angara, 272 SCRA 18, May 2, 1997 [Panganiban])
Distinguish briefly but clearly between the Wilson doctrine and the Estrada doctrine regarding recognition of governments. (2004 Bar)
In the Wilson or Tobar doctrine, a government established by means revolution, civil war, coup d' etat or other forms of internal violence will not be recognized until the freely elected representatives of the people have organized a constitutional government, while in the Estrada doctrine any diplomatic representatives in a country where an upheaval has taken place will deal or not deal with whatever government is in control therein at the time and either action shall not be taken as a judgment on the legitimacy of the said government.
Q: Is sovereignty really absolute?
In the domestic sphere - YES! In international sphere - NO! While sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly or impliedly, as a member of the family of nations. By the doctrine of incorporation, the country is bound by generally accepted principles of international law, which are considered to be automatically part of our own laws. One of the oldest and most fundamental rules in international law is pacta sunt servanda - international agreements must be performed in good faith. A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the parties. By their inherent nature, treaties limit or restrict the absoluteness of sovereignty. By their voluntary act, nations may surrender some aspects of their state power in exchange for greater benefits granted by or derived from a convention or pact. States, like individuals, live with coequals, and in pursuit of mutually covenanted objectives and benefits, they also commonly agree to limit the exercise of their otherwise absolute rights. Thus, a state's sovereignty cannot in fact and in reality be considered absolute. Certain restrictions enter into the picture: Limitations imposed by the very nature of membership in the family of nations; and Limitations imposed by treaty stipulations. Thus, when the Philippines joined the UN as one of its 51 charter members, it consented to restrict its sovereign rights under the "concept of sovereignty as AUTO-LIMITATION."
Right of Innocent Passage
Innocent passage means the right of continuous and expeditious navigation of a foreign ship through the territorial sea of a State for the purpose of traversing that sea without entering the internal waters or calling at a roadstead or port facility outside internal water or proceeding to or from internal waters or a call at such roadstead or port facility. The passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State.
Pacta Sunt Servanda
International agreements must be performed in Good Faith. A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the [arties. A state which has contracted a valid international obligation is bound to make in its legislation such modifications as may be necessary to ensure the fulfillment of the obligations undertaken.
Intervention
It is "the dictatorial interference by a State in the internal affairs of another State, or in the relations between other States, which is either forcible or backed by the threat of force." Intervention is Different from "Intercession" ☀ Intercession is allowed! ☀ EX.: Diplomatic Protest, Tender of Advice
Who has the authority to recognize
It is a matter to be determined according to the municipal law of each State. In the Philippines, there is no explicit provision in the Constitution which vests this power in any department. But since under the Constitution, the President is empowered to appoint and receive ambassadors and public ministers, it is conceded that by implication, it is the Executive Department that is primarily endowed with the power to recognize foreign governments and States. [Art. VII, 1987 Constitution] The legality and wisdom of recognition accorded any foreign entity is not subject to judicial review. The courts are bound by the acts of political department of the government. The action of the Executive in recognizing or refusing to recognize a foreign State or government is properly within the scope of judicial notice.
DEFINITION OF Public International Law
It is the body of rules and principles that are recognized as legally binding and which govern the relations of states and other entities invested with international legal personality. Formerly known as "law of nations" coined by Jeremy Bentham in 1789.
EFFECTS OF A CHANGE IN GOVERNMENT
It is well settled that as far as the rights of the predecessor government are concerned, they are inherited in toto by the successor government. Regarding obligations, distinction is made according to the manner of the establishment of the new government. The rule is that where the new government was organized by virtue of a constitutional reform duly ratified in a plebiscite, the obligations of the replaced government are also completely assumed by the former. Conversely, where the new government was established through violence, as by a revolution, it may lawfully reject the purely personal or political obligations of the predecessor government but not those contracted by it in the ordinary course of official business.
Doctrine of Transformation
Legislative action is required to make the treaty enforceable in the municipal sphere. Generally accepted rules of international law are not per se binding upon the state but must first be embodied in legislation enacted by the lawmaking body and so transformed into municipal law. This doctrine runs counter Art. II, Sec. 2, of the 1987 Constitution. A reading of the case of Kuroda v Jalandoni, [GRN L-2662 March 26, 1949], one may say that Supreme Court expressly ruled out the Doctrine of Transformation when they declared that generally accepted principles of international law form a part of the law of our nation even if the Philippines was not a signatory to the convention embodying them, for our Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rules and principles of international law as contained in treaties to which our government may have been or shall be a signatory.
What is the boundary between the air space and the outer space?
No accepted answer yet! There are different opinions: 1. That it should be near the lowest altitude (perigee) at which artificial earth satellites can remain in orbit without being destroyed by friction with the air around 190 km from earth's surface 2. Theoretical limit of air flights is 90 km above the earth 3. Functional Approach The legal regime governing space activities are based, not on a boundary line, but on the nature of the activities
A, a citizen of State X, was arrested and detained for several years without charges or trial. He brings his case to the courts of State X, but to no avail. He desires to seek redress from any international forum. He goes to you as counsel to file his case with the International Court of Justice. Will the action prosper?
No! Only States may be parties in contentious cases before the International Court of Justice. In fact, only States which are parties to the statute of the ICJ and other states on conditions to be laid down by the Security Council may be such parties. Therefore, a private individual like A cannot bring an action before it. Q: May the United States be sued in our courts for the value of private properties requisitioned by its Army during the last World War, as well as Japan for the "Mickey Mouse" money in payment for private properties, which have not been redeemed until now? May the suit be brought to the ICJ? (1979 Bar) A: No! Even foreign states are entitled to the doctrine of state immunity in the local state. The suit may not be brought before the ICJ without the consent of the United States as jurisdiction of the ICJ in contentious cases is based upon the consent of the parties.
What is outer space? Who or which can exercise jurisdiction over astronauts while in outer space? (2003 Bar)
Outer space is the space beyond the airspace surrounding the Earth or beyond the national airspace. In law, the boundary between outer space and airspace has remained undetermined. But in theory, this has been estimated to be between 80 to 90 kilometers. Outer space in this estimate begins from the lowest altitude an artificial satellite can remain in orbit. Under the Moon Treaty of 1979, the moon and the other celestial bodies form part of outer space. In outer space, the space satellites or objects are under the jurisdiction of States of registry which covers astronauts and cosmonauts. This matter is covered by the Registration of Objects in Space Convention of 1974 and the Liability for Damage Caused by Spaced Objects Convention of 1972.
Explain, using example, recognition of belligerency. (1991 Bar)
Recognition of belligerency is the formal acknowledgment by a third party of the existence of a state of war between the central government and a portion of that state. Belligerency exists when a sizable portion of the territory of a state is under the effective control of an insurgent community which is seeking to establish a separate government and the insurgents are in de facto control of a portion of the territory and population, have a political organization, and are able to maintain such control and conduct themselves according to the laws of war. For example, Great Britain recognized a state of belligerency in the United States during the Civil War.
What happens to sovereignty if the acts of authority cannot be exercised by the legitimate authority?
Sovereignty not suspended. EX.: Japanese Occupation during WWII ★ Sovereignty remained with the US★ Japanese merely took over the exercise of acts of sovereignty In this case, what are the effects on the laws? Political Laws - GR: Suspended! ★ Subject to revival under jus postliminium - i.e., once the legitimate authority returns, the political laws are revived ★ Jus Postliminium - roman law concept. If a Roman Citizen is captured, he loses his rights as a Roman citizen, but once he returns to Rome, he recovers all those rights again XPN: (a) Laws of Treason - Not suspended! ★ Preservation of allegiance to sovereign does not demand positive action, but only a passive attitude or forbearance from adhering to the enemy by giving the latter aid and comfort (Laurel v. Misa) (b) Combatants - not covered by said rule
Principle of State Continuity
State is not lost when one of its elements is changed; it is lost only when at least one of its elements is destroyed. State does not lose its identity but remains one and the same international person notwithstanding changes in the form of its government, territory, people, or sovereignty.
Q: The sovereignty over certain island is disputed between State A and State B. These two states agreed to submit their disputes to the ICJ. 1) Does the ICJ have the jurisdiction to take cognizance of the case? 2) Who shall represent the parties before the Court? 3) What language shall be used in the pleading and the oral arguments? 4) In case State A, the petitioner fails to appear at the oral argument, can State B, the respondent, move for the dismissal of the action? (1994 Bar)
The ICJ has jurisdiction because the parties have jointly submitted the case to it and have thus indicated their consent to its jurisdiction. 2) Parties to a case may appoint agents to appear before the ICJ in their behalf, and these agents need not be their own nationals. However, under Art. 16 of the Statute of ICJ, no member of the Court may appear as agent in any case. 3) Under Art. 39 of the Statute of ICJ, the official languages of the Court are English and French. In the absence of an agreement, each party may use the language it prefers. At the request of any party, the Court may authorize a party to use a language other than English or French. 4) Under Art. 51 of the Statute of ICJ, whenever one of the parties does not appear before the court or fails to defends its case, the other party may ask the Court to decide in favor of its claim. However, the Court must, before doing so, satisfy itself that it has jurisdiction and that the claim is well-founded in fact and in law.
At the United Nations, the Arab League, through Syria, sponsors a move to include in the agenda of the General Assembly the discussion of this matter: "The Muslim population of Mindanao, Philippines has expressed the desire to secede from the Republic of the Philippines in order to constitute a separate and independent state and has drawn attention to the probability that the continuation of the armed conflict in Mindanao constitutes a threat to peace." You are asked by the Philippine Government to draft a position paper opposing the move. Briefly outline your arguments supporting the Philippine position, specifically discussing the tenability of Arab League's action from the standpoint of International Law. (1984 Bar)
The Muslim secessionist movement is not an international dispute, which under Article 35(1) of the UN Charter, a member of the United Nations may bring to the attention of the Security Council or the General Assembly. Such dispute can arise only between two or more States. The attempt of the Arab League to place on the agenda of the General Assembly the Muslim problem in Mindanao can only be views as an interference with a purely domestic affair.
Not too long ago, "allied forces", led by Amercian and British armed forces, invaded Iraq to "liberate Iraqis and destroy suspected weapons of mass destruction." The Security Council of the United Nations failed to reach a consensus on whether to support or oppose the "war of liberation." Can the action taken by the allied forces find justification in International Law? Explain.
The United States and its allied forces cannot justify their invasion of Iraq on the basis of self- defense under Article 51, attack by Iraq, and there was no necessity for anticipatory self- defense which may be justified under customary international law. Neither can they justify their invasion on the ground that Article 42 of the Charter of the United Nations permits the use of force against a State if it is sanctioned by the Security Council. Resolution 1441, which gave Iraq a final opportunity to disarm or face serious consequences, did not authorize the use of armed force. Alternative A: In International Law, the action taken by the allied forces cannot find justification. It is covered by the prohibition against the use of force prescribed by the United Nations Charter and it does not fall under any of the exceptions to that prohibition. The UN Charter in Article 2(4) prohibits the use of force in the relations of states by providing that all members of the 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." This mandate does not only outlaw war; it encompasses all threats of and acts of force or violence short of war. As thus provided, the prohibition is addressed to all UN members. However, it is now recognized as a fundamental principle in customary international law and, as such, is binding on all members of the international community. The action taken by the allied forces cannot be justified under any of the three exceptions to the prohibition against the use of force which the UN Charter allows. These are: (1) inherent right of individual or collective self-defense under Article 51; (2) enforcement measure involving the use of armed forces by the UN Security Council under Article 42; and (3) enforcement measure by regional arrangement under Article 53, as authorized by the UN Security Council. The allied forces did not launch military operations and did not occupy Iraq on the claim that their action was in response to an armed attacked by Iraq, of which there was none. Moreover, the action of the alleged allied forces was taken in defiance or disregard of the Security Council Resolution No. 1441 which set up "an enhanced inspection regime with the aim of bringing to full and verified completion the disarmament process," giving Iraq "a final opportunity to comply with its disarmament obligations." This resolution was in the process of implementation; so was Iraq's compliance with such disarmament obligations.
Is the United States justified in invading Iraq invoking its right to defend itself against an expected attack by Iraq with the use of its biological and chemical weapons of mass destruction?
The United States is invoking its right to defend itself against an expected attack by Iraq with the use of its biological and chemical weapons of mass destruction. There is no evidence of such a threat, but Bush is probably invoking the modern view that a state does not have to wait until the potential enemy fires first. The cowboy from Texas says that outdrawing the foe who is about to shoot is an act of self- defense. Art. 51 says, however, that there must first be an "armed attack" before a state can exercise its inherent right of self-defense, and only until the Security Council, to which the aggression should be reported, shall have taken the necessary measures to maintain international peace and security. It was the United States that made the "armed attack" first, thus becoming the aggressor, not Iraq. Iraq is now not only exercising its inherent right of self-defense as recognized by the UN Charter. (Justice Isagani A. Cruz, in an article entitled "A New World Order" written in his column "Separate Opinion" published in the March 30, 2003 issue of the Philippines Daily Inquirer)
Q: The Japanese government confirmed that during the Second World War, Filipinas were among those conscripted as "comfort women" (prostitutes) for Japanese troops in various parts of Asia. The Japanese government has accordingly launched a goodwill campaign and offered the Philippine government substantial assistance for a program that will promote through government and non-governmental organization women's rights, child welfare, nutrition and family health care. An executive agreement is about to be signed for that purpose. The agreement includes a clause whereby the Philippine government acknowledges that any liability to the comfort women or their descendants are deemed covered by the reparations agreements signed and implemented immediately after the Second World War. Julian Iglesias, descendant of now deceased comfort woman, seeks you advise on the validity of the agreement. Advise him.
The agreement is valid. The comfort woman and their descendant cannot assert individual claims against Japan. As stated in Paris Moore v. Reagan, 453 US 654, the sovereign authority of the state to settle claims of its nationals against foreign countries has repeatedly been recognized. This may be made without the consent of the nationals or even without consultation with them. Since the continued amity between the State and other countries may require a satisfactory compromise of mutual claims, the necessary power to make such compromise has been recognized. The settlement of such claims may be made by executive agreement.
What do you understand by the archipelagic doctrine? Is this reflected in the 1987 Constitution?
The archipelagic doctrine emphasizes the unity of land and waters by defining an archipelago either as a group of islands surrounded by waters or a body of water with studded with islands. For this purpose, it requires that baselines be drawn by connecting the appropriate points of the outermost islands to encircle the islands within the archipelago. The waters on the landward side of the baselines regardless of breadth, or dimensions are merely internal waters. Article I, Sec. 1 of the Constitution provides that the national territory of the Philippines includes the Philippine archipelago, with all the islands and waters embraced therein; and the waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions form part of the internal waters of the Philippines.
En route to the tuna fishing grounds in the Pacific Ocean, a vessel registered in Country TW entered the Balintang Channel north of Babuyan Island and with special hooks and nets dragged up red corrals found near Batanes. By International Convention certain corals are protected species. Just before the vessel reached the high seas, the Coast Guard patrol intercepted the vessel and seized its cargo including tuna. The master of the vessel and the owner of the cargo protested, claiming the rights of transit passage and innocent passage, and sought recovery of the cargo and the release of the ship. Is the claim meritorious or not? Reason briefly. (2004 Bar)
The claim of the master of the vessel and the owner of the cargo is not meritorious. Although their claim of transit passage and innocent passage through the Balintang Channel is tenable under the 1982 Convention on the Law of the Sea, the fact that they attached special hooks and nets to their vessel which dragged up red corrals is reprehensible. The Balintang Channel is considered part of our internal waters and thus is within the absolute jurisdiction of the Philippine government. Being so, no foreign vessel, merchant or otherwise, could exploit or explore any of our natural resources in any manner of doing so without the consent of our government.
Distinguish briefly but clearly between the constitutive theory and the declaratory theory concerning recognition of states. (2004 Bar)
The constitutive theory is the minority view which holds that recognition is the last element that converts or constitutes the entity being recognized into an international person; while the declaratory theory is the majority view that recognition affirms the pre-existing fact that the entity being recognized already possesses the status of an international person. In the former recognition is regarded as mandatory and legal and may be demanded as a matter of right by any entity that can establish its possession of the four essential elements of a state; while the latter recognition is highly political and discretionary.
Explain, using example, the Declaratory Theory of Recognition Principle. (1991 Bar)
The declaratory theory of recognition is a theory according to which recognition of a state is merely an acknowledgment of the fact of its existence. In other words, the recognized state already exists and can exist even without such recognition. For example, when other countries recognize Bangladesh, Bangladesh already existed as a state even without such recognition.
What is the effect of change of sovereignty when the Spain ceded the Philippines to the U.S.?
The effect is that the political laws of the former sovereign are not merely suspended but abrogated. As they regulate the relations between the ruler and the rules, these laws fall to the ground ipso facto unless they are retained or re-enacted by positive act of the new sovereign. Non-political laws, by contrast, continue in operation, for the reason also that they regulate private relations only, unless they are changed by the new sovereign or are contrary to its institutions.
In the Pacific Ocean, while on its way to Northern Samar to load copra, a Norweigian freighter collides with Philippine Luxury Liner resulting in the death of ten (10) Filipino passengers. Upon the Norweigian vessel's arrival in Catarman, Northern Samar, the Norweigian captain and the helmsman assisting were arrested and charged with multiple homicide through reckless imprudence. Apart from filing a protest with the Ministry of Foreign Affairs, the Norweigian Embassy, through a local counsel helps the accused in filing a motion to quash. It is pointed out that the incident happened on the high seas, the accused were on board a Norweigian vessel and only a Norweigian court can try the case even if the death occurred on a Philippine ship. Resolve the motion stating the reason for your decision. (1986 Bar)
The motion to quash should be sustained. In the Lotus case [PCIJ Pub 198i2 Series A No 10 p.25], a French mail steamer, Lotus, collided with a Turkish collier, Boz Kourt. As a result, eight (8) Turkish subjects died. The collision took place in the Aegean Sea, outside of Turkish territorial waters. The Lotus proceeded to Constantinople where its officers were tried and convicted for manslaughter. The French government protested on the ground that Turkey had no jurisdiction over an act committed on the high seas by foreigners on board foreign vessels whose flag state has exclusive jurisdiction as regards such acts. The dispute was referred by agreement to the Permanent Court of International Justice which held in a split decision that Turkey had "not acted in conflict with the principles of International Law," because the act committed produced affects on board the Boz Kourt under Turkish flag, and thus on Turkish territory. The principle that vessels on the high seas are subject to no authority except that the flag State whose flag they fly was thus affirmed.
Doctrine of Hot Pursuit
The pursuit of a foreign vessel undertaken by the coastal State which has "good reason to believe that the ship has violated the laws and regulations of that State." ☀ The pursuit must: 1. Be commenced when the ship is within the pursuing State's: a. Internal Waters; b. Territorial Sea; or c. Contiguous Zone 2. May be continued outside such waters if the pursuit has not been interrupted 3. Continuous and unabated 4. Ceases as soon as the foreign ship enters the territorial sea of: a. Its own State; or b. That of a 3rd State 5. Be undertaken by: a. Warships; or b. Military aircraft; or c. Other ships/aircraft cleared and identifiable as being in the government service and authorized to that effect ☀ Also applies to violations of laws and regulations of the coastal State applicable to the EEZ and to the continental shelf.
Q: State the occasions when the use of force may be allowed under the UN Charter.
There are only two occasions when the use of force is allowed under the UN Charter. The first is when it is authorized in pursuance of the enforcement action that may be decreed by the Security Council under Art. 42. The second is when it is employed in the exercise of the inherent right of self-defense under conditions prescribed in Art. 51. (Justice Isagani A. Cruz, in an article entitled "A New World Order" written in his column "Separate Opinion" published in the March 30, 2003 issue of the Philippines Daily Inquirer)
What happens to judicial decisions made during the occupation?
Those of a Political Complexion - ★ automatically annulled upon restoration of legitimate authority ★ conviction for treason against the belligerent Non-political ★ remains valid ★ EX.: Conviction for defamation
Q: State your general understanding of the primary sources and subsidiary sources of international law, giving an illustration of each.
Under Article 38 of the Statute of International Court of Justice, the primary sources of international law are the following: 1. International conventions, e.g. Vienna Convention on the Law of Treaties. 2. International customs, e.g. cabotage, the prohibition against slavery, and the prohibition against torture. 3. General principles of law recognized by civilized nations, e.g. prescription, res judicata, and due process. The subsidiary sources of international law are judicial decisions, subject to the provisions of Article 59, e.g., the decision in the Anglo- Norwegian Fisheries Case and Nicaragua v. US, and teachings of the most highly qualified publicists of various nations, e.g., Human Rights in International Law by Lauterpacht and International Law by Oppenheim-Lauterpacht.
What must a person who feels aggrieved by the acts of a foreign sovereign do to espouse his cause? Held:
Under both Public International Law and Transnational Law, a person who feels aggrieved by the acts of a foreign sovereign can ask his own government to espouse his cause through diplomatic channels. Private respondent can ask the Philippine government, through the Foreign Office, to espouse its claims against the Holy See. Its first task is to persuade the Philippine government to take up with the Holy See the validity of its claims. Of course, the Foreign Office shall first make a determination of the impact of its espousal on the relations between the Philippine government and the Holy See. Once the Philippine government decides to espouse the claim, the latter ceases to be a private cause. According to the Permanent Court of International Justice, the forerunner of the International Court of Justice: "By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights - its right to ensure, in the person of its subjects, respect for the rules of international law." (The Mavrommatis Palestine Concessions, 1 Hudson, World Court Reports 293, 302 [1924]) (Holy See, The v. Rosario, Jr., 238 SCRA 524, 533-534, Dec. 1, 1994, En Banc
When is a territory "terra nullius?"
Under the Old Concept a territory is not necessarily uninhabited! A territory is terra nullius, if, even if occupied, the people occupying it has a civilization that falls below the European standard. This was the justification for the Spanish colonization of the Philippines, and the European colonization of Africa. However, this old concept is no longer valid under contemporary international law! 2 REQUISITES (1) Discovery/ Possession ☀ Mere discovery gives only an Inchoate Right of Discovery ☀ Q: What is the effect of this right? A: It bars other states, within a reasonable time, from entering the territory, so that the discovering state may establish a settlement therein an commence administration and occupation. Once the discovering state begins exercising sovereign rights over the territory, the inchoate right ripens and is perfected into a full title ☀ Q: What if the discovering state fails to exercise sovereign rights? A: The inchoate title is extinguished, and the territory becomes terra nullius again.
Concept of Sovereignty as Autolimitation
When the Philippines joined the United Nations as one of its 51 charter members, it consented to restrict its sovereign rights under the "concept of sovereignty as autolimitation.
May an inhabitant of a conquered State be convicted of treason against the legitimate sovereign committed during the existence of belligerency?
YES. Although the penal code is non-political law, it is applicable to treason committed against the national security of the legitimate government, because the inhabitants of the occupied territory were still bound by their allegiance to the latter during the enemy occupation. Since the preservation of the allegiance or the obligation of fidelity and obedience of a citizen or subject to his government or sovereign does not demand from him a positive action, but only passive attitude or forbearance from adhering to the enemy by giving the latter aid and comfort, the occupant has no power, as a corollary of the preceding consideration, to repeal or suspend the operation of the law of treason.
The Federation of Islamabad concluded an agreement with the republic of Baleria when the leaders of Islamabad made a state visit to the latter. The agreement concerns the facilitation of entry of Balerian contract workers in Islamabad. Thereafter, a revolution broke out in Islamabad which is now governed by a revolutionary junta. Most of Balerian contract workers were arrested by Islamabad Immigration officers for not having with them the necessary papers and proper documents. Upon learning of the incident, the government of Baleria lodged a formal protest with the Islamabad revolutionary government invoking certain provisions of the aforementioned agreement. The latter replied, however that the new government is not internationally bound by the agreement that was concluded by the former government of Islamabad and Baleria. Moreover, Islamabad further contended that the agreement was contrary to its plasmatic law. Is the Islamabad revolutionary government under obligation pursuant to international law, to comply with what was agreed upon and set forth in the agreement concluded between Baleria and its former government? Reasons. (1985 Bar)
Yes. A new government is exempt from obligation of treaties entered into by the previous government only with respect to those whose subject matter is political in nature. The facilitation of entry by Balerian contract workers to Islamabad is non political. Hence, the treaty embodying such agreement is binding on the new government of Islamabad. Nor may the new government evade its international obligation on the ground that the agreement is contrary to its Plasmatic law. The rule is settled that a state cannot evade its international obligation by invoking its internal law. It is presumed that the treaty is in conformity with its internal law.
ICJ Jurisdiction
he Court is competent to entertain a dispute only if the States concerned have accepted its jurisdiction in one or more of the following ways: a. by the conclusion between them of a special agreement to submit the dispute to the Court; 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. In cases of doubt as to whether the Court has jurisdiction, it is the Court itself which decides.
Doctrine of Effective Occupation
☀ discovery alone gives only an inchoate title; it must be followed within a reasonable time by effective occupation ☀ effective occupation does not necessarily require continuous display of authority in every part of the territory claimed ☀ an occupation made is valid only with respect to and extends only to the area effectively occupied. ☀ under the "Principle of Effective Occupation," the following doctrines/principles are no longer applicable today:
