PUBLIC INTERNATIONAL LAW (BERNAS)

Q. What is International Law? A. International Law is a body of rules and principles of action which are binding upon civilized states in their relations to one another.

Q. Is international law a law? A. No. The basic challenge to international law as law is the claim that there can be no law binding the sovereign states. While there is the General Assembly of the United Nations; its resolutions are generally not binding on anybody. (Suggested ans.) (Alternative ans.) Yes. In the ultimate analysis, although the final enforcer is power, fundamentally, there is general respect for law because of the possible consequences of defiance either to oneself or to the larger society. Q. Distinguish Public and Private International law. A. Public international law governs the relationships between and among states and also their relations with international organizations and individual persons while private international law is really a domestic law which deals with cases where foreign law intrudes in the domestic sphere where there are questions of the applicability of foreign courts.

Q. What are the sources of Public International Law? A. 1. Custom or customary law - a general and consistent practice of states followed by them from a sense of legal obligation. 2. Treaties determines the rights and duties of states just as individual rights are determined by contracts. Their binding force comes from the voluntary decision of sovereign states to obligate themselves to a mode of behavior. 3. General principles of law recognized by civilized nations- this is also referred to by the restatement as general principles of law recognized by or common to the worlds major legal systems. This has reference not to principles of international law but to principles of municipal law common to the legal systems of the world. 4. Judicial decisions- article 38 of the Statute directs the Court to apply judicial decisions as subsidiary means for the determination of the rules of law. 5. The teachings of highly qualified writers and publicists- Publicist are institutions which write on international law.

6. Equity-The permanent Court of Justice had occasion to use equity as a source of law in the case of diversion of water from the Meuse. Q. Define Treaty A. It is an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. Q. What is Soft Law? A. Others prefer to call this category non treaty agreements. They are international agreements not included as treaties and therefore not covered by the Vienna Convention on the Law of Treaties. Other sources of Soft law are administrative rules which guide the practice of states in relation to international organizations. Soft law plays an important relation because often, states prefer non-treaty obligations as simpler and more flexible foundation for their future relations. Q. When there is a conflict between an international law and a domestic law, which is to prevail? A. It will depend on whether the case goes to a domestic court or to an international tribunal. It is an established principle that, before an international tribunal, a state may not plead its own law as an excuse for failure to comply with international law. Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitutions or its laws as an excuse for failure to perform this duty. LISTS OF CASES: 1. Nicaragua v. United States (ICJ Reports 1986) 2. Quatar v. Bahrain (ICJ 1994) 3. Vienna Convention

Q. Distinguish subject and object of international law A. Subject is an entity directly endowed with rights as well as obligations in the international legal order while object is a person or thing indirectly vested with rights and obligations in the international order. Q. What are subjects of international law? a. states b. colonies c. dependencies d. belligerent Q. Are private individuals regarded as subjects of international law? A. The rights of individuals as against States are now protected. In fact, in case of crimes against humanity like genocide, victims are afforded the opportunity to participate in the proceedings. Q. What is the status of an individual under international law? A. Individuals may be regarded as true subjects of international law. They are also directly and indirectly subjects of obligations, responsibilities and rights established by international law. Q. What is the Doctrine of State Continuity? A. It means that a state does not lose its identity but remains one and the same international person notwithstanding changes in the form of its government, in its headship, in its rank and title, and in its dynasty. Q. Who are referred to as insurgents or rebels? A. They are regarded as organized groups who are in a state of armed hostility towards an established government on account of political reasons or purposes.

Q. What is the International Court of Justice? A. It is the primary judicial branch of the United Nations. Its main functions are to settle legal disputes submitted to it by states and to provide advisory opinions on legal

questions submitted to it by duly authorized international branches, agencies, and the UN General Assembly. Q. How many are its members? A. 15 members, no two of whom may be nationals of the same State Q. What is the term of office? A. ICJ are elected for 9 years and may be re-elected. Q. What are the fundamental rights of the states? a. Rights of existence, integrity and self-preservation b. Right of sovereignty and independence c. Right of equality d. Right of property and jurisdiction e. Right of legation and diplomatic intercourse Q. Is the sovereignty and independence of the state absolute? A. No. it is subject to the limitations imposed by treaty stipulations or those arising from membership in the UN. Q. What is the principle of auto limitation? A. Any state may, by its consent, express or implied, submit to a restriction of its sovereign rights. It may, if it chooses to, refrain from the exercise of what otherwise is illimitable competence. Q. What are the modes of acquiring territories? 1. Discovery and occupation 2. Prescription 3. Cession 4. Conquest and subjugation 5. Accretion Q. Is physical conquest enough for the title to ripen into real ownership? A. Its not enough. Annexation or subjugation must follow. Q. What is the archipelagic doctrine? A. The Philippine archipelago is considered as one integrated unit instead of being divided into more than seven thousand islands. This assertion, together with the application of the straight baseline method is what is referred to as the Archipelagic Doctrine.

Q. May the USA lay exclusive claim over the moon, having explored it and having planted her flag thereon to the exclusion of the other states? A. The USA cannot do so because the moon, the outer space and all celestial bodies therein are res communes. Q. What is the right of legation? A. This is the right of the state to send envoys or establish diplomatic missions or the right to receive such envoys or missions. The first is known as the active right of legation. The second is known as the passive right of legation. Q. Are open seas included in the maritime zone of the state? A. No. By its very nature, the sea cannot be the property of any state. Q. What is the principle of the freedom of the seas? A. It means that no part of the seas as such can be subjected to the sovereignty of any state. It cannot therefore be incorporated into the territory of any state through occupation. Q. May the United Nations be sued for unpaid rentals of the buildings used by it for its sessions in the Philippines? A. If the lease of the building is covered by the contract of lease which was entered into by the UN and signed by the latter and the owner of the building, then the UN is deemed to have waived its immunities and may be sued for unpaid rentals under and by virtue of the said contract of lease. Q. Carlos, a foreign national was charged with and convicted of a serious crime in State X and sentenced to life imprisonment. His country applied for relief with the International Court of Justice (ICJ), arguing that State X did not inform Carlos of his right under Article 36 of the Vienna Convention to be accorded legal assistance by his government. State X, as signatory to the Vienna Convention, agreed to ICJ's compulsory jurisdiction over all disputes regarding the interpretation or application of the Vienna Convention. ICJ ruled that State X violated its obligation to provide consular notification to the foreign national's country. ICJ also required State X to review and reconsider the life sentence imposed on the foreign national. State X then wrote the United Nations informing that it was withdrawing from the Optional Protocol on Vienna

Convention and was not bound by the ICJ decision. Is the contention of state X with legal merit? Answer. State X action is without merit. This is a clear violation on the principle of Pacta Sunt Servanda. (agreements must be kept)

Q. May generally accepted principles of international law form part of the law of the land even if they do not derive from treaty obligations? Explain. ANS: Yes. 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 opinion 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. (Mijares v. Ranada, G.R. No. 139325, April 12, 2005, 455 SCRA 397).

Q. Dr. Murphy, an official of the World Health Organization (WHO) assigned in the Philippines, arrived at the Ninoy Aquino International Airport with his personal effects contained in twelve crates as unaccompanied baggage. As such, his personal effects were allowed free entry from duties and taxes, and were directly stored at Arshaine Corporation's warehouse at Makati, pending Dr. Murhpy's relocation to his permanent quarters. At the instance of police authorities, the Regional Trial Court (RTC) of Makati issued a warrant for the search and seizure of Dr. Murphy's personal effects in view of an alleged violation of the Tariff and Custom's Code. According to the police, the crates contained contraband items. Upon protest of WHO officials, the Secretary of Foreign Affairs formally advised the RTC as to Dr. Murphy's immunity. The Solicitor General likewise joined Dr. Murphy's plea of immunity and motion to quash the search warrant. The RTC denied the motion. Is the denial of the motion to quash proper? Ans. The denial of the motion is improper. As held in World Health Organization vs. Aquino, 48 SCRA 242 (1972), as an official of the World Health Organization, Dr. Murphy enjoyed diplomatic immunity and this included exemption from duties and taxes. Since diplomatic immunity involves a political question, where a plea of

diplomatic immunity is recognized and affirmed by the Executive Department, it is the duty of the court to accept the claim of immunity.

Q. Under its statute, give two limitations on the jurisdiction of the International Court of Justice. A. The following are the limitations on the jurisdiction of the International Court of Justice under its Statute: 1. Only states may be parties in cases before it. (Article 34) 2. The consent of the parties is needed for the court to acquire jurisdiction over a case. (Article 36) 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 womens 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 reparation agreements signed and implemented immediately after the Second World War. Julian Iglesias, descendant of now deceased comfort woman, seeks you advice on the validity of the agreement. Advise him.

A: 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.

Q. What must a person who feels aggrieved by the acts of a foreign sovereign do to espouse his cause? A. 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 [Quiason])

Q. What is the basis of the Philippines claim to a part of the Spratlys Islands? (2000 Bar) A. The basis of the Philippine claim is effective occupation of a territory not subject to the sovereignty of another state. The Japanese forces occupied the Spratlys Group of Islands during the Second World War. However, under the San Francisco Peace Treaty of 1951, Japan formally renounced all right and claim to the Spratlys. The San Francisco Treaty or any other international agreement, however, did not designate any beneficiary state following the Japanese renunciation of right. Subsequently, the Spratlys became terra nullius and was occupied by the Philippines in the title of sovereignty. Philippine sovereignty was displayed by open and public occupation of a number of islands by stationing military unit and awarding petroleum rights and by virtue of PD 1596.

Q. Is the Cory Aquino Government a de facto or de jure government? A: De Jure! While initially the Aquino Government was a de facto government because it was established thru extra-constitutional measures, it nevertheless assumed a de jure status when it was subsequently recognized by the international community as the legitimate government of the Republic of the Philippines. Moreover, a new Constitution was drafted and overwhelmingly ratified by the Filipino people and national elections were held for that purpose. [Lawyers League for a Better Philippines v. Aquino, G.R. No. 73748 (1986)]

Q. In the famous Sapphire Case, Emperor Louis Napoleon filed damage suit on behalf of France in an American Court, but he was deposed and replaced as head of State pendent lite. Was the action abated? (Bar)

A: No, because it had in legal effect been filed by France, whose legal existence had not been affected by change in head of its government. Napoleon had sued not in his personal capacity but officially as sovereign of France. Hence, upon recognition of the duly authorized representative of the new government, the litigation could continue.

Q. If the state concerned have accepted or recognized the jurisdiction of the court, how may it entertain a dispute? Ans. a.

By entering into a special agreement to submit the dispute to the court. By virtue of a jurisdictional clause, when they are parties to a treaty concerning a provision whereby in the event of a dispute of a given type or disagreement over the interpretation of the treaty one of them may refer the dispute to the court.

b.

Q. May a treaty violate international law? A. Yes, a treaty may violate international law when at the time of its conclusion, it conflicts with a peremptory norm of general international law (jus cogens) or if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the charter of the United Nation.

Q. Discuss the different principles of jurisdiction of states Ans. a.

b. c.

d.

e.

Territoriality principle - The fundamental source of jurisdiction is sovereignty over territory. A state has absolute, though not necessarily exclusive, power to prescribe, adjudicate, and enforce rules for conduct within its territory. Nationality principle- Every state has jurisdiction over its nationals even when those nationals are outside the state. Protective principle - A state may exercise jurisdiction over conduct outside its territory that threatens its security, as long as that conduct is generally recognized as criminal by the states in the international community. Universality principle- Recognizes that certain offenses are so heinous and so widely condemned that any state, if it captures the offender, may prosecute and punish that person on behalf of the world community regardless of the nationality of the offender or victim or where the crime was committed. Passive personality principle- A state may apply law particularly criminal law to an act committed outside its territory by a person not its national where the victim of the act was its national. This principle has not been ordinarily accepted for ordinary torts or crimes, but is increasingly accepted as applied to terrorists and other organized attacks on a states nationals by reason of their nationality, or to assassination of a states diplomatic representatives or other officials

Q. Differentiate Direct Responsibility from Indirect Responsibility. A. > Direct responsibility - attaches to the state if the wrongful act/omission was effected through any of its superior organs acting on its behalf. > Indirect responsibility - Acts of the following are attributable to the state: i. state organs ii. other persons exercising elements of governmental authority in the absence or default of the official authorities and in circumstances calling for the exercise of those elements of authority iii. insurrectional or other movement which becomes the new government

Q. What is meant by International dispute? A. Not every disagreement is a dispute. A dispute in international law is a technical term which means a disagreement on a point of law or fact, a conflict of legal views or interest between two persons. The peaceful means of settling disputes maybe classified into: a. Non-judicial methods (negotiation, enquiry, mediation, conciliation); b. Quasi-judicial method (arbitration): c. Judicial Method Q. Non-judicial or Diplomatic Methods A. Negotiation- States are generally hesitant to submit their disputes to an adjudicatory body. For this reason, negotiation is a preferred vehicle. There are no set of rules for negotiation. But for a negotiated settlement to be legally binding, the parties must agree to it. The agreement to negotiate may be formalized in a treaty or a simple exchange of notes. Mediation- Mediation involves assistance by third parties who either act as bridge between parties, who do not meet, or who may sit with the disputants to chair meetings, suggest solutions, cajole, etc. The mediator must be approved by both parties. Inquiry- Inquiry is fact finding done by a designated group of individuals or an institution. When undertaken with the consent of the parties, it frequently resolves disputes based solely on questions of fact. Conciliation- Conciliation is a more formal technique whereby the parties agree to refer controversies to an individual, a group of individuals or an institution to make findings of fact and recommendations. As a rule, parties do not agree to be bound by recommendations.

Q. Quasi-judicial Method A. Arbitration- Arbitration is the binding settlement of a dispute or the basis of law by a non- permanent body designated by the parties. States cannot be required to submit to arbitration unless there is previous agreement making arbitration compulsory.

Q. Judicial Method: The International Court of Justice (ICJ) A. All members of the UN are ipso facto parties to the statute of the International Court of Justice. Being party to the statute, however, does not mean acceptance of the jurisdiction of the court. It simply means that the state may accept the jurisdiction of the court. The statute may open the courts door to member states. Only states may be parties in the court.

Q. Jurisdiction of the ICJ: Contentious Jurisdiction A. From Article 36, the following should be noted: jurisdiction of the ICJ is applicable only to disputes between states and disputes are settled by international law and not by domestic law. But a court has jurisdiction only when a case is referred to it by the parties. Three ways where States may accept jurisdiction of the court: a. The first comes about on an ad hoc basis. This can happen when one applies unilaterally to the court and this application is followed by consent by the other states. b. A second way is when parties adhere to a treaty which accepts the jurisdiction of the court on matters of interpretation or application of the treaty. c. Finally, acceptance of jurisdiction can take place by a unilateral declaration on recognition of jurisdiction in relation to any other state accepting the same jurisdiction in all legal disputes. This creates the Optional System of submitting to the jurisdiction of the court.

Q. The Use of Force. A. The general principle is that international law recognizes the autonomy of individual states and their right to freedom from coercion and to the integrity of their territory.

Q. The Threat of Force A. The Charter prohibits not just the use of force but also the threat of force. The most typical form of this threat is the ultimatum in which the State to which it is addressed is given a time limit within which to accept the demands made upon it and is told that, if it rejects the demands, war will be declared on it or certain coercive measures such as naval blockade, bombardment, or occupation of a given territory, will be taken.

Q. Traditionally Allowable Coercive Measures A. Under international law, certain forms of coercive measures or self-help have been traditionally allowed. These include: Severance of diplomatic relations- is not prohibited since there is no obligation to maintain diplomatic relations. Severance should be distinguished from suspension of diplomatic relations. Suspension involves withdrawal of diplomatic representation but not of consular representation. Retorsion- includes shutting of ports to vessels of an unfriendly state, revocation of tariff concessions not guaranteed by treaty, or the display of naval forces near the waters of an unfriendly state. Reprisal- denotes any kind of forcible or coercive measures whereby one State seeks to exercise a deterrent effect or obtain redress or satisfaction, directly or indirectly, for the consequences of the illegal act of another state which has refused to make amends for such illegal acts. Embargo- consists of seizure of vessels even in the high seas. Boycott- consists of suspension of trade or business relations with the nationals of an offending state. Non-intercourse- consists of suspension of all commercial intercourse with a state. Pacific Blockade- is a naval operation carried out in time of peace whereby a state prevents access to or exit from particular ports or portions of the coast of another state for the purpose of compelling the latter to yield the demands made by the blockading state.

Q. What are the two standards followed for the protection of aliens? Explain. ANS. DOCTRINE OF NATIONAL TREATMENT or EQUALITY OF TREATMENTAliens are treated in the same manner as nationals of the state where they reside. MINIMUM INTERNATIONAL STANDARD It says that, however harsh the municipal laws might be against a states own citizens, aliens should be protected by certain minimum standards of humane protection.

Q. What are the elements of internationally wrongful act of a State? ANS. There is an internationally wrongful act of a State when conduct consisting of an action or omission: a.) Is attributable to the State under international law; and b.) Constitutes a breach of an international obligation of the State. Q. Discuss the bright side and dark side of the doctrine of national treatment or equality of treatment. ANS. The bright side is that aliens would enjoy the same benefits as local nationals. The dark side is that, if the state is tyrannical and its municipal laws are harsh and violative of human rights even of its own citizens, then aliens would likewise be subject to such harsh laws. Q. What is International Standard of Justice? ANS. The standard of the reasonable state that is, as referring to the ordinary norms of official conduct observed in civilized jurisdiction; thus, to constitute an international delinquency, the treatment of an alien should amount to an outrage, bad faith, willful neglect of duty, and insufficiency of governmental action that every reasonable and impartial man would readily recognize its insufficiency.