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POLITICAL LAW (PUBLIC INTERNATIONAL LAW) REVIEWER & MEMORY AID

PUBLIC INTERNATIONAL LAW International law is that branch of public law which regulates the relations of States and of other entities which have been granted international personality (e.g. the UN). Modern international law after World War II however now deals not only with the relations between states but also their relations with persons natural or !uridical (e.g. int"l hu#an rights law). Distin tion !etween a s"!#e t an$ o!#e t o% international law $ s"!#e t is an entity that has rights and responsibilities under international law% it can be a proper party in transactions involving the application of international law a#ong #e#bers of the international co##unity. Sub!ects include& states colonies the 'oly See the United Nations. $n o!#e t is a person or thing in respect of which rights are held and obligations assu#ed by the sub!ect% it is not directly governed by the rules of international law% its rights are received and its responsibilities i#posed indirectly through the instru#entality of an international agency. (raditionally individuals have been considered #erely as ob!ects not sub!ects of international law% however #odern I) now grants pri#arily through treaties a certain degree of international personality to individuals (e.g. individuals are granted by treaty the power to sue before the *uropean +ourt of 'u#an ,ights). Di&isions o% International Law 1) )$WS -. /*$+*' 0overns the nor#al relations of States 1) )$WS -. W$, ' ,ules during periods of hostility () )$WS -. N*U(,$)I(2' rules governing States not involved in the hostilities Relation to M"ni i)al Law 2 VIEWS: 1) DOCTINE O* INCORPORATION 3 rules of international law for# part of the law of the land and no further legislative action is needed to #a4e such rules applicable in the do#estic sphere. a) Such is recogni5ed in art. 1 sec. 1 as the /hilippines 6adopts the generally accepted principles of international law as part of the law of the land.6 b) ,ules of international law are given e7ual standing with but are not superior to national legislative enact#ents. (hus the +onstitution as the highest law of the land #ay invalidate a treaty in conflict with it. 8Secretary of 9ustice v. 'on. )antion and Mar4 9i#ene5 9an. 1: 1;;;< 1) DOCTRINE O* TRAN+*ORMATION ' the generally accepted rules of int=l law are not per se binding upon the State but #ust first be e#bodied in legislation enacted by the law#a4ing body and so transfor#ed into #unicipal law. -nly when so transfor#ed will they beco#e binding upon the State as part of its #unicipal law. 2 THEORIES: 1) DUALI+M > do#estic and international law are independent of each other as they regulate different sub!ect #atter. I) regulates the relations of sovereign states while #unicipal law regulates the internal affairs of a state. (hus no conflict can ever arise between international and #unicipal law because the two syste#s are #utually e?clusive. If I) is applied within a state it is only because it has been e?pressly incorporated by #unicipal law. (he /hilippines is a dualist state. 1) MONI+M > Monists have a unitary concept of law and see all law > including both international and #unicipal law > as an integral part of the sa#e syste#. If conflict e?ists between international law and #unicipal law international law #ust prevail. 0er#any is a #onist state.

POLITICAL LAW (PUBLIC INTERNATIONAL LAW) REVIEWER & MEMORY AID

+o"r es o% International Law $rticle @: of the Statute of the International +ourt of 9ustice (I+9) is considered the authoritative enu#eration of the sources of International )aw. A) PRIMARY 1. TREATY , INTERNATIONAL CONVENTION+ 3 0enerally a treaty only binds the parties. 'owever treaties #ay be considered a direct source of Int=l law when concluded by a si5able no. of States and is reflective of the will of the fa#ily of nations (in which case a treaty is evidence of custo#). 1. CU+TOM 3 /ractices which through persistent usage have grown to be accepted by States as legally binding. 1 *le#ents& 1. +TATE PRACTICE > a consistent and unifor# e?ternal conduct of States. 0enerally both what states say and what they do are considered state practice. 1. OPINIO -URI+ 3 State practice #ust be acco#panied with the conviction that the State is legally obligated to do so by int=l law and not through #ere courtesy or co#ity or because of hu#anitarian considerations. Q: What is 'INSTANT' CUSTOM? A& +usto#ary law #ay e#erge even within a relatively short passage of ti#e if within that period State /ractice has been unifor# and e?tensive. (e?. )aw on the +ontinental Shelf) (hus int=l law does N-( always re7uire a long period of ti#e to elapse before conduct is considered custo#ary. (. /ENERAL PRINCIPLE+ O* LAW 3 /rinciples co##on to #ost national syste#s of law% rules based on natural !ustice. ex. good faith estoppel e?haustion of local re#edies. B) +ECONDARY 1. -UDICIAL DECI+ION+ 3 a subsidiary #eans for the deter#ination of rules of law (e.g. deter#ining what rules of custo#ary I) e?ist) that is acceptable so long as they correctly interpret and apply int=l law. Note: *ven decisions of national courts when applying int=l law are acceptable. ex. /rinciples on diplo#atic i##unity have been developed by !udg#ents of national courts. 1. TEAC0IN/+ O* PUBLICI+T+ 33 (he word =/ublicist= #eans =learned writer.= )earned writings li4e !udicial decisions can be evidence of custo#ary law and can also play a subsidiary role in developing new rules of law. 1 ,e7uisites& 1. .air and i#partial representation of law. 1. Ay an ac4nowledged authority in the field. +tate A ) ELEMENT+ O* A +TATE1 $ State should possess the following 7ualifications ($rt. 1 Montevideo +onvention)& 1) 1) @) B) a per#anent population% a defined territory% govern#ent% capacity to enter into relations with other States.

B) DI+TINCTION+ BETWEEN +OVEREI/NTY AND INDEPENDENCE

POLITICAL LAW (PUBLIC INTERNATIONAL LAW) REVIEWER & MEMORY AID

$. S-C*,*I0N(2 is the broader ter#. It refers to the supre#e and uncontrollable power inherent in the State by which such State is governed. It has 1 aspects& 1. IN(*,N$)3 freedo# of the State to #anage its own affairs. 1. *D(*,N$)3 freedo# of the State to direct its foreign affairs. A. INE*/*NE*N+* is synony#ous with e?ternal sovereignty. It is defined as the power of a State to #anage its e?ternal affairs without direction or interference fro# another State. C) PRINCIPLE+ O* +TATE +UCCE++ION $. S($(* SU++*SSI-N is the substitution of one State by another the latter ta4ing over the rights and so#e of the obligations of the for#er. A. 1 types of State Succession& 1. UNIVER+AL3 ta4es place when a State is co#pletely anne?ed by another or is dis#e#bered or dissolved or is created as a result of #erger of 1 or #ore States. 1. PARTIAL 3 ta4es place when a portion of the territory of a State loses part of its sovereignty by !oining a confederation or beco#ing a protectorate or su5erainty. +. *ffects of State Succession 1. (he allegiance of the inhabitants of the predecessor State is transferred to the successor State. 1. (he political laws of the predecessor State are auto#atically abrogated but the non3political laws are dee#ed continued unless e?pressly repealed or contrary to the institutions of the new sovereign. @. (he public property of the successor State is ac7uired by the successor State but not the tort liability of the for#er. B. (reaties entered into by the predecessor State are not considered binding on the successor State except those dealing with local rights and duties such as servitudes and boundaries. D) +UCCE++ION O* /OVERNMENT 1. In succession of govern#ent the integrity of the original State is not affected as what ta4es place is only a change in one of its ele#ents the govern#ent. 1. *ffects of a change in govern#ent& a. If effected by peaceful #eans the new govern#ent inherits all rights and obligations of the old govern#ent. b. If effected by violence the new govern#ent inherits all the rights of the old govern#ent. 'owever the new govern#ent #ay re!ect the obligations of the old govern#ent if they are of a political co#ple?ion. If the obligations are the conse7uence of the routinary act of ad#inistration of the old govern#ent they should be respected. E) TERRITORY 1. Methods used in defining the territorial sea a. Nor#al baseline #ethod Under this #ethod the territorial sea is drawn fro# the low3water #ar4 of the coast to the breadth clai#ed following its sinuosities and curvatures but e?cluding the internal waters in bays and gulfs. b. Straight baseline #ethod

POLITICAL LAW (PUBLIC INTERNATIONAL LAW) REVIEWER & MEMORY AID

Straight lines are #ade to connect appropriate points on the coast without departing radically fro# its general direction. (he waters inside the lines are considered internal. 1. So#e #odes of ac7uisition& a. Cession It is a derivative #ode of ac7uisition by which territory belonging to one state is transferred to the sovereignty of another state in accordance with an agree#ent between the#. b. +"!#"2ation It is a derivative #ode of ac7uisition by which the territory of one state is con7uered in the course of war and thereafter anne?ed and placed under sovereignty of the con7uering state. c. Pres ri)tion It is a derivative #ode of ac7uisition by which territory belonging to one state is transferred to the sovereignty of another state by reason of the adverse and uninterrupted possession thereof by the latter for a sufficiently long period of ti#e. *) RI/0T O* LE/ATION a. It is the right of a state to #aintain diplo#atic relations with other states. b. (ypes& 1. A ti&e3 right to send diplo#atic representatives 1. Passi&e3 right to receive diplo#atic representatives Treaties 3) DE*INITION ( $rt. 1 Cienna +onvention on the )aw of (reaties) $ (,*$(2 is& 1) 1) @) B) F) an international agree#ent concluded between States in written for# governed by international law e#bodied in a single instru#ent or in 1 or #ore related instru#ents.

Q: If not in writin ! is it sti"" #onsi$ere$ a treat%? A& 2es. -ral agree#ents between States are recogni5ed as treaties under custo#ary international law (but are e?tre#ely rare nowadays). 4) DI+TIN/UI+0ED *ROM E5ECUTIVE A/REEMENT+ A. +"!#e t 6atter o% Treaties 7+ode1 PCI8

1. Political Issues 1. Changes in National /olicy @. Involve international arrange#ents of a per#anent character B. +"!#e t Matter o% E9e "ti&e A2ree6ents 7+ode& TAAI 8 1. 'ave Transitory effectivity 1. Ad!ust#ent of details carrying out well3established national policies and traditions @. Arrange#ents of te#porary nature B. I#ple#entation of treaties statutes well3established policies

POLITICAL LAW (PUBLIC INTERNATIONAL LAW) REVIEWER & MEMORY AID

C. Nee$ %or rati%i ation !: t;e +enate 1. (,*$(I*S $NE IN(=) $0,**M*N(S 33 While the +onstitution vests the power to N*0-(I$(* treaties with the /resident such #ust be ,$(I.I*E by the 1G@ of the Senate to beco#e valid and effective ($rt.H Sec 11) 1. *D*+U(IC* $0,**M*N(S do not need to be ratified by the Senate () PRINCIPAL RULE+ O* INTERNATIONAL LAW IN CONNECTION WIT0 TREATIE+ A. PACTA +UNT +ERVANDA 3 *very treaty in force is binding upon the parties and #ust be perfor#ed by the# in good faith. 3 this applies despite hardships on the contracting State such as conflicts between the treaty and its +onstitution. B. REBUC +IC +TANTIBU+ ' $ party is not bound to perfor# a treaty if there has been a funda#ental change of circu#stances since the treaty was concluded. 3) it has been described as the e?ception to the rule of pacta sunt servanda. 4) !ustifies the non3perfor#ance of a treaty obligation if the subse7uent condition in relation to which the parties contracted has changed so 6ateriall: an$ "ne9)e te$l: as to create a situation in which the e?action of perfor#ance would be unreasonable. () Rebus sic stantibus #ay not be invo4ed as a ground for ter#inating or withdrawing fro# a treaty& a. if the treaty establishes a boundary b. if the =funda#ental change= is the result of a breach by the party invo4ing it of an obligation under the treaty or of any other obligation owed to any other party to the treaty. C. -U+ CO/EN+ ' a rule which has the status of a pere#ptory (i.e. absolute unco#pro#ising) nor# of international law. *le#ents& 1. a nor# accepted and recogni5ed 1. by the int=l co##unity of States as a whole @. as a nor# fro# which no derogation is per#itted. B. It can only be #odified by a subse7uent nor# having the sa#e character. If a treaty at the ti#e of its conclusion conflicts with jus cogens, it is void. *?a#ples& (1) prohibition against the unlawful use of force% (1) prohibition against piracy genocide and slavery +tate Res)onsi!ilit: (1) it is the doctrine which holds a state responsible for any in!ury sustained by an alien within its !urisdiction. Aecause of an international wrong i#putable to it the state will be responsible if it is shown that it participated in the act or o#ission co#plained of or was re#iss in redressing the resultant wrong. (1) (ypes of State responsibility a. Dire t res)onsi!ilit:3attaches to the state if the wrongful actGo#ission was effected through any of its superior organs acting on its behalf b. In$ire t res)onsi!ilit:

POLITICAL LAW (PUBLIC INTERNATIONAL LAW) REVIEWER & MEMORY AID

(@) +onditions for the enforce#ent of the doctrine of state responsibility a. (he in!ured alien #ust first e?haust all local re#edies b. 'e #ust be represented in the int=l +lai# for da#ages by his own state (ordinarily individuals have no standing to bring a clai# before international law). +ettle6ent o% Dis)"tes 3) AMICABLE MET0OD+ $. N*0-(I$(I-N3 discussion by the parties of their respective clai#s and counterclai#s with a view to the !ust and orderly ad!ust#ent. A. INJUI,2 3 an investigation of the points in 7uestion with the view that this will contribute to the solution of the proble# +. 0--E -..I+*S 3 #ethod by which a @rd party atte#pts to bring the disputing states together in order that they #ay be able to discuss the issues in contention. E. M*EI$(I-N3 @rd party actively participates in the discussion in order to reconcile the conflicting clai#s. Suggestions of #ediator are #erely persuasive *. +-N+I)I$(I-N3 @rd party also actively participates in order to settle the conflict. Suggestions of conciliator are also not binding. $s distinguished fro# #ediation the services of the conciliator were solicited by the parties in dispute. .. $,AI(,$(I-N3 process by which the solution of a dispute is entrusted to an i#partial tribunal usually created by the parties the#selves under a charter 4nown as the compromis. (he proceedings are essentially !udicial and the award is by previous agree#ent binding on the parties. 4) 0O+TILE,NON'AMICABLE MET0OD+ $. ,*(-,SI-N 3 is a law%"l a t which is designed to in!ure the wrongdoing State. Ex.& cutting off econo#ic aid (this is lawful because there is no legal obligation to provide econo#ic aid). A. ,*/,IS$) 3 an act which would nor#ally be illegal but which is rendered legal by a prior illegal act co##itted by the State against which the reprisal is directed% it is a for# of retaliation against the prior illegal act. ,eprisals #ay be used only when other #eans of redress (e.g. protests and warnings) have failed. +PECIAL TOPIC+ E5TRADITION 3) E5TRADITION is the surrender of a person by one state to another state where he is wanted for prosecution or if already convicted for punish#ent. 4) Basis o% E9tra$ition1 a treaty. -utside of treaty there is no rule in international law co#pelling a State to e?tradite anyone. Such #ay be done however as a gesture of co#ity. () Prin i)les1 a) Prin i)le o% +)e ialit: 3 a fugitive who is e?tradited #ay be tried only for the cri#e specified in the re7uest for e?tradition $,* included in the list of e?traditable offenses in the treaty. b) Under the Politi al o%%ense e9 e)tion #ost e?tradition treaties provide that political and religious offenders are not sub!ect to e?tradition.

POLITICAL LAW (PUBLIC INTERNATIONAL LAW) REVIEWER & MEMORY AID

Q: The &hi"i''ines entere$ into an e(tra$ition treat% with another #o)ntr% whi#h 'ro*i$e$ that it wo)"$ a''"% #ri+es #o++itte$ ,efore its effe#ti*it%- The #o)ntr% as.e$ the &hi"i''ines to e(tra$ite / for a #ri+e #o++itte$ ,efore the effe#ti*it% of the treat%- / ar )e$ the e(tra$ition wo)"$ *io"ate the 'rohi,ition a ainst e( 'ost fa#to "aws- Is he ri ht? A: No. (he constitutional prohibition applies to penal laws only. (he e?tradition treaty is not a penal law. (Wright v. +$ 1@F S+,$ @B1)

SECRETAR !" #$ST%CE &. '!(. )A(T%!( A(* +AR, #%+E(E- (0.,. K 1@LBIF -ct. 1H 1;;; overturning the Court.s previous decision in @11 S+,$ 1I; dated #an. /0, 1222) Ay virtue of an e?tradition treaty between the US and the /hilippines the US re7uested for the e?tradition of Mar4 9i#ene5 for violations of US ta? and election laws. /ending evaluation of the e?tradition docu#ents by the /hilippine govern#ent 9i#ene5 re7uested for copies of the US= e?tradition re7uest. (he Secetary of 9ustice denied that re7uest. ISSU*& Euring the evaluation stage of the e?tradition proceedings is private respondent entitled to the two basic due process rights of notice and hearingM '*)E& /rivate respondent is bereft of the right to notice and hearing during the evaluation stage of the e?tradition process. *?tradition is a proceeding sui generis. It is not a cri#inal proceeding which will call into operation all the rights of an accused guaranteed by the Aill of ,ights. (he process of e?tradition does not involve the deter#ination of the guilt or innocence of an accused. 'is guilt or innocence will be ad!udged in the court of the state where he will be e?tradited. *issent 3original decision45 Under the e?tradition treaty the prospective e?traditee #ay be provisionally arrested pending the sub#ission of the re7uest. Aecause of this possible conse7uence the evaluation process is a4in to an ad#inistrative agency conducting an investigative proceeding and parta4es of the nature of a cri#inal investigation. (hus the basic due process rights of notice and hearing are indispensable. $ssu#ing that the e?tradition treaty does not allow for such rights the +onstitutional right to procedural due process #ust override treaty obligations. When there is a conflict between international law obligations and the +onstitution the +onstitution #ust prevail. UNITED NATION+ OR/AN+ 3. /ENERAL A++EMBLY Composition5 $ll #e#bers of the UN (as of 1LLI& 1:F #e#ber States) "unction: (he 0$ #ay discuss any 7uestion or #atter within the scope of the +harter or relating to the powers and functions of any other organ. It is also vested with !urisdiction over #atters concerning internal #achinery ands operations of the UN. 4. +ECURITY COUNCIL Composition5 1F #e#bers& a) F /er#anent Me#bers (+hina .rance UN US ,ussia) b) 1; non3per#anent& elected for 1 year ter#s by the 0eneral $sse#bly. "unction: the #aintenance of international peace and security. Q: What is the 0$o),"e *eto0? $& In all non6procedural matters each per#anent #e#ber is given a =veto= 3 a Security +ouncil decision is ineffective if even one per#anent #e#ber votes against it. (he veto does not ordinarily apply to 7rocedural matters. 'owever a per#anent #e#ber #ay e?ercise a =double veto= when it vetoes any atte#pt to treat a 7uestion as procedural and then proceed to veto any draft resolution dealing with that 7uestion.

POLITICAL LAW (PUBLIC INTERNATIONAL LAW) REVIEWER & MEMORY AID

(. +ECRETARIAT 3 +'I*. $EMINIS(,$(IC* -,0$N -. ('* UN <. ECONOMIC AND +OCIAL COUNCIL 3 organ charged with pro#oting social progress and better standards of life in larger freedo# =. TRU+TEE+0IP COUNCIL 3 organ charged with ad#inistration of Int=l (rusteeship Syste#. >. INTERNATIONAL COURT O* -U+TICE 3 !udicial organ of the UN. U+E O* *ORCE Under $rticle 1(B) of the UN +harter all #e#ber States are bound to refrain fro# the threat or use of force against the territorial integrity or political independence of a State. ,ecogni5ed e?ceptions& 1) self3defense 1) #ilitary action ta4en or authori5ed by the UN or co#petent ,egional organi5ations (such as N$(-). CALVO CLAU+E $ CALVO CLAU+E is a provision inserted in contracts in which the foreigner agrees in advance not to see4 the diplo#atic protection of his national State. In general International +ourts have disregarded such clauses as the right to diplo#atic protection is a right which belongs to a State and waiver fro# an individual does not bind his State. +TATE IMMUNITY (-URE IMPERII an$ -URE /E+TIONI+) -riginally under custo#ary international law the doctrine of absolute state i##unity applied covering all areas of State activity and recogni5ing only very narrow e?ceptions. Nowadays the rule is to adopt a $o#trine of 1)a"ifie$ i++)nit% 66 that is i##unity is granted to foreign States only in respect of their govern#ental acts (acts 2)re i+'erii) not in respect of their co##ercial acts (acts 2)re estionis). DIPLOMATIC IMMUNITY Eiplo#atic I##unity is a principle of custo#ary international law that grants i##unity to diplo#atic representatives in order to uphold their dignity as representatives of their respective states and to allow the# free and unha#pered e?ercise of their functions. In the /hilippines i##unity is clai#ed by re7uest of the foreign state for endorse#ent by the Eepart#ent of .oreign $ffairs. (he deter#ination by the e?ecutive depart#ent is considered a political 7uestion that is conclusive upon /hilippine +ourts. INTERNATIONAL CONTRACT+ Usually agree#ents between States and foreign corporations contain stipulations as to which national legal syste# governs the contract. -ccasionally however in case of powerful #ultinational co#panies such contracts are placed not under any single syste# of #unicipal law but under international law general principles of law or the provisions of the contract itself. (he reason for concluding these so3called internationali8ed contracts is to establish a balance between the parties and prevent the State party fro# evading its obligations under the contract by changing its own internal law. (his is #ostly secured by an arbitration clause referring disputes under the agree#ent to an international body.

POLITICAL LAW (PUBLIC INTERNATIONAL LAW) REVIEWER & MEMORY AID

T0E INTERNATIONAL COURT O* -U+TICE 3) ?O)tional Cla"se? of the I+9& $s a rule the I+9 can operate only on the basis of the consent of States to its !urisdiction. Such #ay ta4e the for# of a s)e ial a2ree6ent between States to sub#it an e(istin dispute before the +ourt (i.e. compromis). 'owever under the @o)tional la"se@ (art. @I(1) I+9 Statute) a State #ay declare in a$*an#e that they recogni5e the !urisdiction of the +ourt as co#pulsory ipso facto and without need of special agree#ent in relation to any other State accepting the sa#e obligation in all legal disputes concerning& a. the interpretation of a treaty% b. any 7uestion of international law c. e?istence of any fact which if established would constitute breach of international obligation% and d. nature or e?tent of reparation to be #ade for breach of international obligation. 4) +TARE DECI+I+ does not apply to the I+9. Under the statute of the +ourt previous decisions have no binding force% in practice however the +ourt always ta4es past decisions into account. Q: What $oes it +ean to $e#i$e a #ase E/ AEQUO ET 3ONO? A& It is to rule in !ustice and fairness 33 e7uity overrides all other rules of law. (he I+9 has no power to decide a case ex ae9uo et bono unless all parties agree thereto 8art. @:(1) I+9 Statute<. Q: Who has stan$in ,efore the IC4? A& -nly States #ay be parties in contentious proceedings before the I+9 (art @B I+9 Statute).