November 27, 2010

International Law and its Sources*

Key questions:

Q: What is International Law?
101 International Law Defined
International law, as used in this Restatement, consists of rules and principles of general
application dealing with the conduct of states and of international organizations and with
their relations inter se, as well as with some of their relations with persons, whether natural or
juridical.
Q: Is International Law law? If it is, why is it binding?


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

(1) A rule of international law is one that has been accepted as such by the international
community of states

(a) in the form of customary law;

(b) by international agreement; or

(c) by derivation from general principles common to the major legal systems of the world.

(2) Customary international law results from a general and consistent practice of states
followed by them from a sense of legal obligation.
(3) International agreements create law for the states parties thereto and may lead to the
creation of customary international law when such agreements are intended for adherence by
states generally and are in fact widely accepted.
(4) General principles common to the major legal systems, even if not incorporated or
reflected in customary law or international agreement, may be invoked as supplementary
rules of international law where appropriate.


Q: How do we know whether a rule of International Law exists?


Q: How do know what are allowed and what are prohibited under International Law?


Q: Is a treaty superior to customary law?


Q: Are there rules of customary law that are superior to treaties?



Topics:
1. Definition of International Law
2. Formal sources (processes):(a) treaty, (b) custom, (c) general principle of law
3. Material sources (content)
4. Evidence of existence and content:
(a) principal means (text of treaty and state practice)
(b) subsidiary means (judicial decisions and teachings of highly qualified publicists)
5. Treaty
6. Custom
(a) state practice
(b) opinio juris
7. General principle of law
8. Treaty v. Custom

Readings:
Cruz, pp. 1-20 (Chapter 1), pp. 21-26 (Chapter 2)
Bernas, pp. 1-7 (Chapter 1), pp. 8-22 (Chapter 2)
Wikipedia on Sources of international law

Further Readings:
Wikipedia on Nicaragua v. USA
Paragraphs 172-182, ICJ Judgment of 27 June 1986 in Case concerning Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. USA) [*downloadable from website of class e-group] [*downloadable from ICJ
website: www.icj-cij.org. Click: English/Cases/Contentious Cases/1984 Military and
Paramilitary/Judgments/Judgment of 27 June 1986/Metis (pdf)]

Memorize:

Article 38(1), Statute of the International Court of Justice (ICJ) [*downloadable from website of class e-group]
Sections 101 and 102, ALI Restatement (Third) of Foreign Relations Law of the United States [*downloadable
from website of class e-group]


December 4, 2010

International Law and its relation to Philippine Law

Key questions:

Q: What are the similarities (and differences) between Philippine law and International Law?


Q: Is Philippine law part of the international legal system?


Q: Is International Law part of the Philippine legal system?


Q: Is the Philippine Constitution superior to International Law?


Q: How may a Philippine lawyer invoke rules of International Law before a Philippine court?


Q: Is a treaty the same as an international agreement?

Topics:

1. Status of international law in the Philippine legal system
- Monism and Dualism
2. Transformation v. Incorporation
3. International Agreement: (a) Treaty, (b) Executive Agreement

Readings:

Cruz, pp. 1-20 (Chapter 1)
Bernas, pp. 1-7 (Chapter 1), pp. 55-64 (Chapter 4)
Executive Order No. 459 dated November 25, 1997
Ichong v. Hernandez, 101 Phil. 1155 (1957)
Gonzales v. Hechanova, 9 SCRA 230 (1963)
Pimentel v. Office of the Executive Secretary, G.R. No. 158088, July 6, 2005

Memorize:

Section 2, Article II, Philippine Constitution
Section 21, Article VII, Philippine Constitution
Section 5(2)(a), Article VIII, Philippine Constitution

MEMORIZE:
Art. II. Section 2. The Philippines renounces war as an instrument of national policy, adopts
the generally accepted principles of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all
nations.
Art. VII. Section 21. No treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate.
Art. VIII. Section 5. The Supreme Court shall have the following powers:
2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules
of Court may provide, final judgments and orders of lower courts in:
a. All cases in which the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.

Jurisdiction of States and Immunities
Q: What is the meaning of the term jurisdiction?


Q: What are the three kinds of jurisdiction?


Q: What principles can be used to justify a states exercise of jurisdiction (i) within its territorial borders? (ii)
beyond its territorial borders?


Q: If State A claims that State B acted without or in excess of its jurisdiction, who has the burden of proving
that State B indeed acted without or in excess of its jurisdiction?


Q: An individual is in the territory of State X. Can said individual claim that State X cannot exercise
jurisdiction over his person?


Q: The President of State A is in the territory of State B. Can said President claim that State B cannot exercise
jurisdiction over his person?


1. Jurisdiction: legislative, executive, judicial
2. Bases (i.e., arguments to be used) for asserting jurisdiction: territoriality, nationality, passive personality, protective,
universality
3. Lotus principle: states may do as they please unless prohibited by international law
4. General rule: jurisdiction
Exception: immunity
6. Immunities:
(6.1) State (sovereign)
(6.1.1) other States
(6.1.2) head of state (incumbent and former)
(6.1.3) diplomats and consuls
(6.2) International Organizations
(6.2.1) organizations
(6.2.2) staff

Readings:

On Jurisdiction and Immunities
(1) Bernas, pp. 140-207 (Chapter 8), 228-263 (Chapter 9) [or Cruz, pp. 141-167 (Chapters 12 and 13)]

On State immunity diplomatic and consular
(2) Wikipedia on: (i) Diplomatic Immunity, (ii) Vienna Convention on Diplomatic Relations, and (iii) Vienna
Convention on Consular Relations
(3) Summary of ICJ Judgment of 24 May 1980, Case Concerning US Diplomatic and Consular Staff in Tehran
[download from class e-group website]

On State immunity sovereign and diplomatic
(4) United States of America, et al. v. Ruiz, 136 SCRA 487 (1987)
(5) Republic of Indonesia v. Vinzon, G.R. No. 154705, June 26, 2003

On International Organization immunity
(6) Liang v. People of the Philippines, G.R. No. 125856, March 26, 2001
(7) International Catholic Migration Commission v. Calleja, G.R. No. 85750, September 28, 1990
(8) DFA v. NLRC, G.R. No. 113191, September 18, 1996

Further Readings (Useful for the Midterm, but not required for class):
- Vienna Convention on Diplomatic Relations (1961), Arts. 3 (functions), 4 (agrment) 22 (premises), 24
(archives), 27(2) (correspondence), 29 (person), 30 (residence), 31 (suit), 32 (waiver)
- Vienna Convention on Consular Relations (1963), Arts. 5(a)-(e) (functions), 12 (exequatur), 29(2) (flag), 31
(premises), 33 (archives), 35(2) (correspondence), 40 (protection), 41 (person), 43 (suit), 45 (waiver)

December 11, 2010

Subjects of International Law
Q: Do individuals have rights under the law of nations?


Q: How does an entity become a state?


Q: What are the fundamental rights of a state?


Q: What are the basic obligations of a state?


Q: What is the difference between an inter-governmental organization (IO) and an international
non-governmental organization (NGO)?



1. In general
(a) States
(b) Non-states

2. States
2.1. Qualifications
2.2. Recognition of states and of governments
2.3. Rights of states
- Self-defense
- Independence
- Equality in law
- Jurisdiction over its territory and persons and things therein
2.4. Duties of states
- Non-intervention
- Non-use of force
- Pacific settlement of disputes
- Respect for human rights
- Other duties

3. Non-states
3.1. International organizations
- United Nations
- Principle of speciality
3.2. Natural persons
3.3. Juridical persons


Read:
Cruz, pp. 27-44 (Chapter 3), 72-108 (Chapter 5)
Bernas, pp. 69-76 (Chapter 5), 89-96 (Chapter 5), 312-322 (Chapter 12)
Article 2, UN Charter
Montevideo Convention on the Rights and Duties of States (1933)
ILC Draft Declaration on the Rights and Duties of States (1949)
Wikipedia on (1) Montevideo Convention, (2) Constitutive Theory of Statehood, (3) Declarative Theory of Statehood,
and (4) Estrada Doctrine
ICJ Summary of Advisory Opinion of 8 July 1996 on the Legality of the Use by a State of Nuclear Weapons in
Armed Conflict


January 8, 2011

Law of Treaties
Q: Can a state which is a party to an international agreement validly claim that as a sovereign state it
has absolute discretion as to whether or not it is bound by said international agreement?


Q: Compare the definition of treaty in VCLT and in Executive Order No. 459. Which definition is
broader?


Q: May an individual enter into a treaty?


Q: What is the difference between a signatory to a treaty and a party to a treaty?


Q: What are the stages in the treaty making process?


Q: How does one become a party to a treaty?


Q: May a state be bound by a treaty when it is not a party to such treaty?


Q: What are the grounds for invalidating a treaty?


Q: How may a treaty be terminated?










1. Pacta sunt servanda
2. Sources of the Law of Treaties (custom and VCLT)
3. VCLT definition of treaty
4. Stages of treaty making process
5. Interpretation of treaties
6. Invalidity of treaties
7. Termination of treaties

Read:
(1) Bernas, pp. 23-54 (Chapter 3)
(2) Cruz, pp. 168-180 (Chapter 14)
(3) Vienna Convention on the Law of Treaties (1969)
(4) Philippine Executive Order No. 459 dated November 25, 1997
(5) BAYAN v. Zamora, G.R. No. 138570, October 10, 2000 (focus: whether VFA is a treaty under international
law)
(6) Nicolas v. Romulo, G.R. No. 175888, February 11, 2009