XVI.

Public International Law

A. Concepts
1. Obligations erga omnes
*The term erga omnes (Latin: in relation to everyone) in international law has been used as
a legal term describing obligations owed by States towards the community of states as a
whole. The concept was recognized by the ICJ in Barcelona Traction:
x x x an essential distinction should be drawn between the obligations of a State towards
the international community as a whole, and those arising vis--vis another State in the
field of diplomatic protection. By their very nature, the former 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.
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 rights of the human person, including protection from slavery and racial
discrimination. Some of the corresponding rights of protection have entered into the body of
general international law others are conferred by international instruments of a
universal or quasi-universal character. Vinuya, et al. vs. Executive Secretary, et al., G.R.
No. 162230, April 28, 2010.
2. Jus cogens
*In international law, the term "jus cogens" (literally, "compelling law") refers to norms that
command peremptory authority, superseding conflicting treaties and custom. Jus cogens
norms are considered peremptory in the sense that they are mandatory, do not admit
derogation, and can be modified only by general international norms of equivalent
authority.
Early strains of the jus cogens doctrine have existed since the 1700s, but peremptory
norms began to attract greater scholarly attention with the publication of Alfred von
Verdross's influential 1937 article, Forbidden Treaties in International Law. The recognition
of jus cogens gained even more force in the 1950s and 1960s with the ILCs preparation of
the Vienna Convention on the Law of Treaties (VCLT). Though there was a consensus that
certain international norms had attained the status of jus cogens, the ILC was unable to
reach a consensus on the proper criteria for identifying peremptory norms.
After an extended debate over these and other theories of jus cogens, the ILC concluded
ruefully in 1963 that "there is not as yet any generally accepted criterion by which to
identify a general rule of international law as having the character of jus cogens." In a
commentary accompanying the draft convention, the ILC indicated that "the prudent
course seems to be to x x x leave the full content of this rule to be worked out in State
practice and in the jurisprudence of international tribunals." Thus, while the existence of
jus cogens in international law is undisputed, no consensus exists on its substance,
beyond a tiny core of principles and rules. - Vinuya, et al. vs. Executive Secretary, et al.,
G.R. No. 162230, April 28, 2010.
3. Concept of ex aequo et bono
*By what is fair and good or notwithstanding the law a doctrine of equity
*Used in the sense of considerations of fairness, reasonableness, and policy often necessary
for the sensible application of the more settled rules of law (Brownlie, 2008).
B. International and national law
*Generally accepted principles of international law, by virtue of the incorporation clause of
the Constitution, form part of the laws of the land even if they do not derive from treaty
obligations. The classical formulation in international law sees those customary rules

accepted as binding result from the combination of two elements: the established,
widespread, and consistent practice on the part of States; and a psychological element
known as the opinio juris sive necessitates (opinion as to law or necessity). Implicit in the
latter element is a belief that the practice in question is rendered obligatory by the
existence of a rule of law requiring it. Razon vs. Tagitis, G.R. No. 182498, December 3,
2009.
C. Sources
*A U.N. Declaration is, according to one authoritative definition, "a formal and solemn
instrument, suitable for rare occasions when principles of great and lasting importance are
being enunciated." Accordingly, it has been observed that the Universal Declaration of
Human Rights "no longer fits into the dichotomy of binding treaty against non-binding
pronouncement,' but is rather an authoritative statement of the international community."
- Razon vs. Tagitis, G.R. No. 182498, December 3, 2009.
D. Subjects
1. States
*Where a party to an agreement is just an entity within a state, no binding international
law obligation is created notwithstanding that said agreement includes foreign dignitaries
as signatories and that its signing was witnessed by representatives of foreign nations.
Thus, the Memorandum of Agreement on the Ancestral Domain (MOA-AD) between the
government of the Republic of the Philippines and the MILF is not an internationally
binding agreement nor does it constitute a unilateral declaration on the part of the
Government of the Republic of the Philippines because the commitments in the MOA-AD
were not addressed to States and not complying thereto would not be detrimental to the
security of international intercourse. The Province of North Cotabato, et al. vs. The
Government of the Republic of the Philippines Peace Panel on Ancestral Domain, G.R. No.
183591, October 14, 2008.
2. International organizations
* The Philippine National Red Cross (PNRC) is one of the National Red Cross and Red
Crescent Societies, which, together with the International Committee of the Red Cross
(ICRC) and the IFRC and RCS, make up the International Red Cross and Red Crescent
Movement (the Movement). They constitute a worldwide humanitarian movement.
The PNRC works closely with the ICRC and has been involved in humanitarian activities in
the Philippines since 1982. Among others, these activities in the country include:
1. Giving protection and assistance to civilians displaced or otherwise affected by armed
clashes between the government and armed opposition groups, primarily in Mindanao;
2. Working to minimize the effects of armed hostilities and violence on the population;
3. Visiting detainees; and
4. Promoting awareness of international humanitarian law in the public and private
sectors.
National Societies such as the PNRC act as auxiliaries to the public authorities of their own
countries in the humanitarian field and provide a range of services including disaster relief
and health and social programmes.
A National Society partakes of a sui generis character. It is a protected component of the
Red Cross movement under Articles 24 and 26 of the First Geneva Convention, especially in
times of armed conflict. These provisions require that the staff of a National Society shall be
respected and protected in all circumstances. Such protection is not ordinarily afforded by
an international treaty to ordinary private entities or even non-governmental organisations

(NGOs). This sui generis character is also emphasized by the Fourth Geneva Convention
which holds that an Occupying Power cannot require any change in the personnel or
structure of a National Society. National societies are therefore organizations that are
directly regulated by international humanitarian law, in contrast to other ordinary private
entities, including NGOs.
x x x. No other organisation belongs to a world-wide Movement in which all Societies have
equal status and share equal responsibilities and duties in helping each other. This is
considered to be the essence of the Fundamental Principle of Universality.
It is in recognition of this sui generis character of the PNRC that R.A. No. 95 has remained
valid and effective from the time of its enactment in March 22, 1947 under the 1935
Constitution and during the effectivity of the 1973 Constitution and the 1987 Constitution.
The PNRC Charter and its amendatory laws have not been questioned or challenged on
constitutional grounds, not even in this case before the Court now.
The Republic of the Philippines, adhering to the Geneva Conventions, established the PNRC
as a voluntary organization for the purpose contemplated in the Geneva Convention of 27
July 1929.
The PNRC, as a National Society of the International Red Cross and Red Crescent
Movement, can neither "be classified as an instrumentality of the State, so as not to lose its
character of neutrality" as well as its independence, nor strictly as a private corporation
since it is regulated by international humanitarian law and is treated as an auxiliary of the
State.
Based on the above, the sui generis status of the PNRC is now sufficiently established.
Although it is neither a subdivision, agency, or instrumentality of the government, nor a
government-owned or -controlled corporation or a subsidiary thereof, so much so that
respondent, under the Decision, was correctly allowed to hold his position as Chairman
thereof concurrently while he served as a Senator (Gordon), such a conclusion does not
ipso facto imply that the PNRC is a "private corporation" within the contemplation of the
provision of the Constitution, that must be organized under the Corporation Code. As
correctly mentioned by Justice Roberto A. Abad, the sui generis character of PNRC requires
us to approach controversies involving the PNRC on a case-to-case basis. Liban, et al. vs
Gordon, et al., G.R. No. 175352, January 18, 2011.
3. Individuals
E. Diplomatic and consular law
F. Treaties
*Re: the validity of the Visiting Forces Agreement (VFA) - The Joint RP-US military exercises
for the purpose of developing the capability to resist an armed attack fall squarely under
the provisions of the RP-US Mutual Defense Treaty. The VFA, which is the instrument
agreed upon to provide for the joint RP-US military exercises, is simply an implementing
agreement to the main RP-US Military Defense Treaty.
Accordingly, as an implementing agreement of the RP-US Mutual Defense Treaty, it was not
necessary to submit the VFA to the US Senate for advice and consent, but merely to the US
Congress under the CaseZablocki Act within 60 days of its ratification. It is for this reason
that the US has certified that it recognizes the VFA as a binding international agreement,
i.e., a treaty, and this substantially complies with the requirements of Art. XVIII, Sec. 25 of
our Constitution. Simbolon vs. Romulo, G.R. No. 175888, February 11, 2009.
* The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of the
fact that the presence of the US Armed Forces through the VFA is a presence "allowed
under" the RP-US Mutual Defense Treaty. Since the RP-US Mutual Defense Treaty itself has
been ratified and concurred in by both the Philippine Senate and the US Senate, there is no
violation of the Constitutional provision resulting from such presence.

The VFA being a valid and binding agreement, the parties are required as a matter of
international law to abide by its terms and provisions. - Simbolon vs. Romulo, G.R. No.
175888, February 11, 2009.
G. Nationality and statelessness
1. Vienna Convention on the Law of Treaties
H. State responsibility
1. Doctrine of state responsibility
I. Jurisdiction of States
1. Territoriality principle
2. Nationality principle and statelessness
3. Protective principle
4. Universality principle
5. Passive personality
6. Conflicts of jurisdiction
J. Treatment of aliens
1. Extradition
a) Fundamental principles
* The time-honored principle of pacta sunt servanda demands that the Philippines honor its
obligations under the Extradition Treaty it entered into with the Hong Kong Special
Administrative Region. Failure to comply with these obligations is a setback in our foreign
relations and defeats the purpose of extradition. However, it does not necessarily mean that
in keeping with its treaty obligations, the Philippines should diminish a potential
extraditees rights to life, liberty, and due process. More so, where these rights are
guaranteed, not only by our Constitution, but also by international conventions, to which
the Philippines is a party. We should not, therefore, deprive an extraditee of his right to
apply for bail, provided that a certain standard for the grant is satisfactorily met.
Government of Hongkong Special Administrative Region vs. Olalia, Jr., G.R. No. 153675,
April 19, 2007.
b) Procedure
*An extradition proceeding being sui generis, the standard of proof required in granting or
denying bail can neither be the proof beyond reasonable doubt in criminal cases nor the
standard of proof of preponderance of evidence in civil cases. While administrative in
character, the standard of substantial evidence used in administrative cases cannot
likewise apply given the object of extradition law which is to prevent the prospective
extraditee from fleeing our jurisdiction. In his Separate Opinion in Purganan, then
Associate Justice, now Chief Justice Reynato S. Puno, proposed that a new standard which
he termed "clear and convincing evidence" should be used in granting bail in extradition
cases. According to him, this standard should be lower than proof beyond reasonable doubt
but higher than preponderance of evidence. The potential extraditee must prove by "clear
and convincing evidence" that he is not a flight risk and will abide with all the orders and
processes of the extradition court.
c) Distinguished from deportation
K. International Human Rights Law
*The principle of equality has long been recognized under international law. Article 1 of the
Universal Declaration of Human Rights proclaims that all human beings are born free and
equal in dignity and rights. Non-discrimination, together with equality before the law and
equal protection of the law without any discrimination, constitutes basic principles in the
protection of human rights.
Most, if not all, international human rights instruments include some prohibition on
discrimination and/or provisions about equality. The general international provisions
pertinent to discrimination and/or equality are the International Covenant on Civil and
Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural

Rights (ICESCR); the International Convention on the Elimination of all Forms of Racial
Discrimination (CERD); the Convention on the Elimination of all Forms of Discrimination
against Women (CEDAW); and the Convention on the Rights of the Child (CRC).
In the broader international context, equality is also enshrined in regional instruments
such as the American Convention on Human Rights; the African Charter on Human and
People's Rights; the European Convention on Human Rights; the European Social Charter
of 1961 and revised Social Charter of 1996; and the European Union Charter of Rights (of
particular importance to European states). Even the Council of the League of Arab States
has adopted the Arab Charter on Human Rights in 1994, although it has yet to be ratified
by the Member States of the League.
The equality provisions in these instruments do not merely function as traditional "first
generation" rights, commonly viewed as concerned only with constraining rather than
requiring State action. Article 26 of the ICCPR requires "guarantee[s]" of "equal and effective
protection against discrimination" while Articles 1 and 14 of the American and European
Conventions oblige States Parties "to ensure ... the full and free exercise of [the rights
guaranteed] ... without any discrimination" and to "secure without discrimination" the
enjoyment of the rights guaranteed. These provisions impose a measure of positive
obligation on States Parties to take steps to eradicate discrimination.
In the employment field, basic detailed minimum standards ensuring equality and
prevention of discrimination, are laid down in the ICESCR and in a very large number of
Conventions administered by the International Labour Organisation, a United Nations
body. Additionally, many of the other international and regional human rights instruments
have specific provisions relating to employment.
The foregoing discussion, among others, were adopted by the Supreme Court in declaring
as unconstitutional the last proviso in Section 15(c), Article II of R.A. No. 7653 which reads:
The compensation and wage structure of employees whose positions fall under salary
grade 19 and below shall be in accordance with the rates prescribed under Republic
Act No. 6758.
The thrust of the constitutional challenge is that the above proviso makes an
unconstitutional cut between two classes of employees in the Bangko Sentral ng Pilipinas
(BSP), viz: (1) the BSP officers or those exempted from the coverage of the Salary
Standardization Law (SSL) (exempt class); and (2) the rank-and-file (Salary Grade [SG] 19
and below), or those not exempted from the coverage of the SSL (non-exempt class). It is
contended that this classification is "a classic case of class legislation," allegedly not based
on substantial distinctions which make real differences, but solely on the SG of the BSP
personnel's position.
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
1. Categories of armed conflicts
a) International armed conflicts
b) Internal or non-international armed conflict
c) War of national liberation
2. Core international obligations of states in International Humanitarian Law
3. Principles of International Humanitarian Law
a) Treatment of civilians
b) Prisoners of war
* 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 xxx and shall be complementary to the national criminal jurisdictions." Its
jurisdiction covers the crime of genocide, crimes against humanity, war crimes and the
crime of aggression as defined in the Statute. The Statute was opened for signature by all

states in Rome on July 17, 1998 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 through Charge d Affairs Enrique A. Manalo of the Philippine
Mission to the United Nations. Its provisions, however, require that it be subject to
ratification, acceptance or approval of the signatory states. Pimentel vs. Office of the
Executive Secretary, G.R. No. 158088, July 6, 2005.
4. Law on neutrality
M. Law of the sea
*The SC, in upholding the constitutionality of R.A. No. 9522 (adjusting the countrys
archipelagic baselines and classifying the baseline regime of nearby territories) stated that:
UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or,
as petitioners claim, diminution of territory. Under traditional international law typology,
States acquire (or conversely, lose) territory through occupation, accretion, cession and
prescription, not by executing multilateral treaties on the regulations of sea-use rights or
enacting statutes to comply with the treatys terms to delimit maritime zones and
continental shelves. Territorial claims to land features are outside UNCLOS III, and are
instead governed by the rules on general international law. Magallona, et al. vs. Ermita, et
al., G.R. No. 187167, August 16, 2011.
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 environmental law
1. Principle 21 of the Stockholm Declaration
P. International economic law