PUBLIC INTERNATIONAL LAW

A. Concepts

1. Obligation erga omnes
2. Jus cogens

What is a jus cogens norm?

Article 53 of the Vienna Convention on the Law of Treaties defines a jus
cogens norm, thus: a peremptory norm of general international law/is a norm
accepted and recognized by the international community of States as a whole/ as a
norm from which no derogation is permitted/ and which can be modified only by a
subsequent norm of general international law having the same character.

A jus cogens or peremptory norm is a norm which States cannot derogate or
deviate from in their agreements. It is a mandatory norm and stands on a higher
category than a jus dispositivum norm which States can set aside or modify by
agreement. Jus cogens norms are recognized in the Vienna Convention on the Law of
Treaties as a ground for invalidity and termination of treaties, when they are in
conflict with such norms. (Magallona, Fundamentals of Public International Law
[2005 ed.])

What norms, for example, are considered jus cogens in character?

1. The prohibition against the use of force under the UN Charter;
2. The law on genocide;
3. The principles of self-determination;
4. Crimes against humanity;
5. Prohibition against slavery and slave trade; and
6. Piracy
(Magallona, Fundamentals of Public International Law [2005 ed.])

What is an obligation erga omnes?

It is an obligation of every State towards the international community as a
whole. All States have a legal interest in its compliance, and thus all States are
entitles to invoke responsibility for breach of such an obligation. The distinctive
character of this obligation is pointed out by the ICJ in the Barcelona Traction Case
by distinguishing it from an obligation inter se which a State owes to another state:
An essential distinction should be drawn between the obligation of a state towards
the international community as a whole, and those arising vis--vis another State
By their nature x x x they are the concern of all States. In view of the importance of
the rights involved, all States can be held to have a legal interest in their protection;
they are obligations erga omnes (Magallona, Fundamentals of Public
International Law [2005 ed.])

Give examples of obligations erga omnes

The ICJ gives examples in the Barcelona Traction Case, as follows: Such
obligations, derive, for example, in contemporary international law, from the
outlawing of acts of aggression, and of genocide, as also from the principles and
rules concerning the basic right of the human person, including protection from
slavery and racial discrimination (Magallona, Fundamentals of Public
International Law [2005 ed.])

3. Concept of ex aequo et bono

Article 38, par. 2, of the Statute of International Court of Justice states
that if both parties to a dispute agree, the court can decide a case ex aequo et bono,
ie., the court can apply equity in precedence to all other legal rules.

B. International and National Law

1. The Doctrine of Incorporation

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 rule of international law are given equal standing with, but are not
superior to, national legislative enactments. Accordingly, the principle of lex
posterior derogate 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])

The Right to Self-determination of Peoples as a Generally Accepted Principle
of International Law
This right to self-determination of peoples has gone beyond mere treaty or
convention; in fact, it has now been elevated into the status of a generally accepted
principle of international law. (The Province of North Cotabato v. The Governemnt
of the Republic of the Philippines Peace Panel, G.R. No. 183591, October 14,
2008, En Banc [Carpio-Morales])

Distinction between Internal and External Self-Determination

However, in international law, the right to self-determination of peoples
should not be understood as extending to a unilateral right of secession. A
distinction should be made between the right of internal and external self-
determination. The right of self-determination of a people is normally fulfilled
through internal self-determination a peoples pursuit of its political, economic,
social and cultural development within the framework of an existing state. A right to
external self-determination (which takes form of the assertion of a right to unilateral
secission) arises in only the most extreme of cases and, even then, under carefully
defined circumstances. The right to external self-determination can arise only in
exceptional cases, namely, where a people is under colonial rule, is subject to foreign
domination or exploitation outside of a colonial context, and is blocked form the
meaningful exercise of its right to internal self-determination. (The Province of
North Cotabato v. The Governemnt of the Republic of the Philippines Peace
Panel, G.R. No. 183591, October 14, 2008, En Banc [Carpio-Morales])

2. The Doctrine of Transformation

C. Sources

Article 38 (1) of the Statute of International Court of Justice

D. Subjects

1. States

Sovereignty as an Element of a State in International Law
Is sovereignty really absolute and all-encompassing? If not, what are its
restrictions and limitations?

While sovereignty has traditionally been deemed absolute and all
encompassing on the domestic level, it is however subject to restrictions and
limitation 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 pacts 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 form 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])

2. International organizations
3. Individuals

Discuss the contemporary view on the rightful place of an individual in International
Law. Does he remain a mere object of International Law, or is he now a proper
subject of International Law?

Then came the long and still ongoing debate on what should be the subject of
international law. The 20
th
century saw the dramatic rise and fall of different types
and hues of authoritarianism the facism of Italys Mussolini and Germanys Hitler,
the militarism of Japans Hirohito and the communism of Russias Stalin, etc. The
sinking of the isms led to the elevation of the rights of the individual against
the state. Indeed, some species of human rights have already been accorded
universal recognition. Today, the drive to internationalize rights of women and
children is no longer on high gear. The higher rating given to human rights on the
hierarchy of values necessarily lead to the re-examination of the rightful place of the
individual in international law. Given the harshest eye is the moss-covered doctrine
that international law deals only with States and that individuals are not its
subject. For its undesirable corollary is that sub-doctrine that an individuals right
in international law is a near cipher. Translated in extradition law, the view that
once commanded a consensus is that since a fugitive is a mere object and not a
subject of international law, he is bereft of rights. An extraditee, so it was held, is a
mere object transported from one state to other as an exercise of the sovereign will
of the two states involved. The re-examination consigned this pernicious doctrine
to the museum of ideas. The new thinkers of international law then gave a
significant shape to the role and rights of the individual in state-concluded treaties
and other international agreements. (Concurring Opinion, Puno J., in Jeffrey Liang
[Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1
st
Div. [Motion for
Reconsideration])

The modern trend in public international law is the primacy placed on the
worth of the individual person and the sanctity of human rights. Slowly, the
recognition that the individual person may properly be a subject of international
law is now taking root. The vulnerable doctrine that the subjects of international
law are limited only to states was dramatically eroded towards the second half of
the past century. For one, the Nuremberg and Tokyo trials after the WWII resulted
in the unprecedented spectacle of individual defendants (prosecuted) for acts
characterized as violations of the laws of war, crimes against peace, and crimes
against humanity. Recently, under the Nuremberg principle, Serbian leaders have
been prosecuted for war crimes and crimes against humanity committed in the
former Yugoslavia. These significant events show that the individual person is now a
valid subject of international law. (Government of Hong Kong Special
Administrative Region, represented by the Philippine DOJ v. Hon. Felixberto T.
Olalia, Jr., et al., G.R. No. 153675, April 19, 2007, En Banc [Sandoval-Gutierrez])

E. Diplomatic and Consular Law

Vienna Convention on Diplomatic Relations
Vienna Convention on Consular Relations
F. Treaties

Vienna Convention on the Law of Treaties
The Rome Statute (that established the International Criminal Court)

The Rome Statute established the International Criminal Court which shall
have the power to exercise its jurisdiction over persons for the most serious crimes
of international concern x x x and shall be complementary to the national criminal
jurisdictions. (Article I, Rome Statute). Its jurisdiction covers the crime of genocide,
crimes against humanity, war crimes and the crime of aggression as defined in the
Statute (Article 5, Rome Statute). The Statute was opened for signature by all the
States in Rome on July 17, 1988 and had remained open for signature until
December 31, 2000 at the United Nations Headquarters in New York. The
Philippines signed the Statute on December 28, 2000 x x x. Its provisions, however,
require that it be subject to ratification, acceptance or approval of the signatory
states ( Article 25, Rome Statute).
(Pimentel, Jr. v. Office of the Executive Secretary, 462 SCRA 622, July 6, 2005, En
Banc [Puno])

What offenses fall under the jurisdiction of the International Criminal Court
(ICC)?

The International Criminal Court (ICC) shall have the power to exercise
jurisdiction over persons for the most serious crimes of international concern. Its
jurisdiction covers the crime of genocide, crimes against humanity, war crimes and
the crimes of aggression as defined in the Statute (Article 5, Rome Statute).
(Pimentel, Jr. v. Office of the Executive Secretary, 462 SCRA 622, July 6, 2005, En
Banc [Puno])

What is the Principle of Complementarity in the Statute of the International
Criminal Court (ICC)?

The tenth preambular paragraph of the ICC Statute emphasizes that the
International Criminal Court x x x shall be complementary to national criminal
jurisdiction. This principle becomes operative in Article 1 of the Statute. This,
however, has to be correlated with the sixth preambular paragraph of the Statue
which declares that :it is the duty of every State to exercise its criminal jurisdiction
over those responsible for international crimes. The principle of complementarity
produces a correlation of the ICC jurisdiction with that of every state over
international crimes under the ICC Statute.

The principle of complementarity gives primacy to national jurisdiction x x x.

The principle of ne bis in idem in Article 20, paragraph 3, of ICC Statute
strengthens complementarity, thus; Unless the proceedings of national court is for
the purpose of shielding the person concerned from liability, or not conducted
independently or impartially, no person who has been tried by another court for
conduct [Constituting crimes within its jurisdiction] shall be tried by the Court
with respect to the same conduct x x x. (Magallona, Fundamentals of Public
International Law [2005 ed.])

G. Nationality and Statelessness

Asylum
Refugee
Stateless persons

The Right of Non Refoulement

The right of a refugee to be expelled or returned in any manner whatsoever
to the frontiers of territories where his life or freedom would be threatened on
account for his race, religion, nationality, membership of a particular social group or
political opinion. The prohibition of such expulsion or return becomes an
obligation of States parties to the Convention relating to the Status of Refugees.
(Magallona, Fundamentals of Public International Law [2005 ed.])

H. State Responsibility

1. Doctrine of State Responsibility

A state is under no legal obligation in international law to admit an alien in
its territory. However, once it admits an alien, it becomes its obligation to
afford protection to that alien so that when the State was remiss in the
performance oft his duty of affording protection and the alien dies or suffers
damage or injury, this may give rise to liability on the part of the State.

This doctrine sometimes has been referred loosely as international tort.

Requisites:

1. An act or omission in violation of International Law
2. Attributable to the state
3. Causing damage to a third State either directly or indirectly, to a national
of the third state.

Conditions for Enforcement of Claims under this Doctrine

1. Nationality of the Claim

The Doctrine of Effective Nationality (Otherwise known as The Genuine
Link Doctrine)

2. Exhaustion of Local Remedies
3. No Waiver

Calvo Clause

4. Unnecessary Delay
5. No Improper Behavior on the Part of the Injured Alien

I. Jurisdiction of States

1. Territoriality Principle
2. Nationality Principle and Statelessness
3. Protective Principle
4. Universality Principle
5. Passive Personality Principle

Passive Personality Principle

By this principle, a state may exercise jurisdiction against foreign nationals
who commit acts to the injury of its nationals within the territory of another state.

This principle may imply that a national state carries with him the authority
of its law for his protection outside its territorial jurisdiction, thereby adversely
affecting the territorial sovereignty of other states thus affected. (Magallona,
Fundamentals of Public International Law [2005 ed.])

6. Conflicts of jurisdiction

J. Treatment of Aliens

1. Extradition

a. Fundamental Principles
b. Procedure
c. Distinguish from Deportation
d.
K. International Human Rights Law

1. Universal Declaration of Human Rights
2. International Covenant on Civil and Political Rights
3. International Covenant on Economic, Social and Cultural Rights

L. International Humanitarian Law and Neutrality

International humanitarian law is the branch of public international law
which governs armed conflicts to the end that the use of violence is limited and that
human suffering is mitigated or reduced by regulating or limiting the means of
military operations and by protecting persons who do not or no longer participate
in hostilities. (Magallona, Fundamentals of Public International Law [2005 ed.])

IHL encompasses both humanitarian principles and international treaties
that seek to save lives and alleviate suffering of combatants and noncombatants
during armed conflict. Its principal legal documents are the Geneva Conventions of
1949, four treaties signed by almost every nation in the world. The Conventions
define fundamental rights for combatants removed from the fighting due to injury,
illness, or capture, and for civilians. The 1977Additional Protocols, which
supplement the Geneva Conventions, further expand those rights.

These are:

1. Geneva Convention for the Amelioration of the Condition of the wounded
and sick in armed forces in the field of August 12, 1949 (First Geneva
Convention)
2. Geneva Convention for the Amelioration of the Condition of Wounded,
Sick and Shipwrecked Members of Armed Forces at Sea of August 12,
1949 (Second Geneva Convention)
3. Geneva Convention Relative to the Treatment of Prisoners of War of
August 12, 1949 (Third Geneva Convention);
4. Geneva Convention Relative to the Protection of Civilian Persons in Time
of War of August 12, 1949 (Fourth Geneva Convention);
5. Protocol Additional to the Geneva Conventions of August 12, 1949 and
Relating to the Protection of Victims of International Armed Conflicts
(Protocol I) of 8 June 1977; and
6. Protocol Additional to the Geneva Conventions of August 12, 1949 and
Relating to the Protection of Victims of Non-International Armed Conflicts
(Protocol I) of 8 June 1977


IHL is not concerned with the lawfulness or unlawfulness of armed
conflict. In violation of the prohibition against the threat or use of force under
international law, a state may engage in armed attack against another state,
resulting in armed conflict between them. The application of IHL in their conflict
pertains solely to the fact of armed conflict as the use of force remains unlawful.
Armed conflict, in which IHL properly applies, may arise from a legitimate use of
force as when a multinational force of UN members engages in armed attack against
a State by authority of the UN Security Council as an enforcement measure under
Article 42 of the UN Charter. In IHL, and there may be methods of warfare which
may come under the prohibition of IHL. Hence, the issue of lawfulness or
unlawfulness of the armed conflict is of no legal importance form the standpoint of
IHL. (Magallona, Fundamentals of Public International Law [2005 ed.])

1. Categories of Armed Conflicts
a. International Armed Conflicts
b. Internal or Non-international Armed Conflicts
c. War of National Liberation

War of National Liberation

An armed conflict may be of such nature in which peoples are fighting
against colonial domination and alien occupation and against racist regimes in the
exercise of their right of self-determination.

This conflict involving the right of peoples to self-determination is an
international armed conflict. It is so classified under Article I, paragraph 3 and 4 of
Protocol I. Under these provisions, this conflict which may be referred to as war of
national liberation, is included in the classification set out in Article 2 common to
the four Geneva Convention of 1949 x x x. (Magallona, Fundamentals of Public
International Law [2005 ed.])

The Martens Clause

In cases not covered by this Protocol (I) or by any other international
agreements, civilians and combatants remain under the protection and authority of
the principles of international law derived from established custom, from the
principles of humanity and from the dictates of public conscience.

The Martens Clause originally formed party of the Hague Convention II with
respect to the Laws and Customs of War on Land of 1899. It was also one of the
preambular paragraphs of Hague Convention No. IV which provides that in cases not
covered by the rules of law, the inhabitants and belligerents remain under the
protection and the rule of the principles of the law of nations, as they result from the
usages established by civilized people, from the laws of humanity and the dictates of
public conscience. Its modern version x x x is Article I, paragraph 2, of Additional
Protocol I of 1977.

Where lacunae or loopholes arise in the interpretation and application of
international agreements or treaties of humanitarian law, resort may be made to the
Martens Clause. (Magallona, Fundamentals of Public International Law [2005
ed.])


2. Core international obligations of states in International Humanitarian Law

a. Treatment of civilians
b. Prisoners of war

3. Law on Neutrality

M. Law of the Sea

The UNITED NATIONS CONVENTION ON THE LAW OF THE SEA (UNCLOS) III

1. Baselines
2. Archipelagic states

a. Straight archipelagic baselines
b. Archipelagic waters
c. Archipelagic sea lanes passage

3. Internal waters
4. Territorial sea
5. Exclusive economic zone
6. Continental shelf

a. Extended continental shelf

7. International Tribunal for the Law of the Sea

N. Madrid Protocol and the Paris Convention for the Protection of Industrial
Property

O. International Environment Law

1. Principle 21 of the Stockholm Declaration

The Stockholm Declaration is the Declaration of the United Nations
Conference on the Human Environment made in Stockholm Sweden on June 16,
1972. It has 26 principles. Principle 21 thereof states that:

States have, in accordance with the Charter of the United Nations and
the principles of international law, the sovereign right to exploit their own
resources pursuant to their own environmental policies, and the
responsibility to ensure that activities within their jurisdiction or control do
not cause damage to the environment of other States or of areas beyond the
limits of national jurisdiction.

P. International Economic Law