Professional Documents
Culture Documents
Kuroda vs Jalandoni
Doctrine of Incorporation
Doctrine of Transformation rules of international
law are not per se binding
Tanada vs Angara 272 SCRA 18: Philippine
membership in the WTO is not an impairment of
our sovereignty. Applicable principles are the
doctrine of incorporation and pacta sunt
servanda. The sovereignty of the Philippines is
subject to restriction by its membership in the
family f nations and limitations imposed by treaty
limitations. The constitution did not envision our
hermitlike isolation from the rest of the world.
*LOI 229 requiring motor vehicle owners to have
reflectorized triangular early warning devices
pursuant to 1968 Vienna Convention on Road
Signs and Signals.
CONFLICT BET PIL AND MUNICIPAL LAW
McArthurs proclamation declaring null and
void all laws and processes of any
government
other
than
that
of
Commonwealth does not invalidate all
judicial proceedings during the Japanese
belligerent
occupation.
Only
judgments/judicial proceedings of political
nature are invalidated (Co Kim Chan vs
Valdez Tan Keh)
From International Viewpoint, uphold PIL
Act. 7, Sec. 21, 1987 Constitution. An
instance where our constitution upholds
the supremacy of our law [ where 2/3 of
the votes cast in the congress for
concurrence]
Independent foreign policy should be free
from foreign dictates
CONFLICT
BETWEEN
TREAT
AND
CONSTITUTION
Demandable obligation under pacta sunt
servanda
PIL: every state has the duty to carry out
in good faith its obligations arising form
treaties and other sources of international
law, and it may not invoke its constitution
or laws as an excuse not to perform this
duty (Declaration of Rights and Duties of
States adopted by the ILC)
Gonzales vs Hechanova
Importation of rice by executive agreement:
Pres. May not defeat the law by indirectly
repealing the same thru EA
Factors
that
induce
observance;
sanctions of PIL
1. Inherent
reasonableness
of
PIL;
conviction that it will redound to
welfare of community
2. Normal Habits of Obedience
3. Respect for world opinion
4. Fear of Retaliation by more powerful
states
5. Machinery of UN
o During wwii, the league of nations
failed as an institution because it
did not have provision on what
what thats why the UN was formed
How is international law enforced?
1. Thru
international
organizations/regional groups
2. Settle differences between themselves
either through amicable methods or
hostile measures like retorsions or
reprisals
3. Prosecution of war criminals and
collection of reparations
4. PIL treated as part of municipal law
Usage
Does not have belief
that it is right and
proper
International Community
Distinction between subject and object
of international law
Subject
Object:
: entity that can
person or thing in
directly assert rights
which rights are
and assume
asserted and
obligations in
obligations assumed
international law; a
through the
direct participant in
intercession or
international relations.
intervention of the
subject or his own
State.
Elements of a State
1. People/population
2. Territory
3. Government which has control to
administrative machineries
4. Sovereignty the competence of a state
to pursue external relations with other
states or entities
o
o
of
by
to
Concept of State
- Methods of acquiring the status of a State:
- Revolution
- Unification
- Secession
- Assertion of independence
- Agreement and attainment of civilization
-
Succession of Governments
- One government replaces another either
peacefully or by violent means
- Rights inherited by successor government
- On obligations, dependent on manner of
establishing new government whether
peaceful or violent
Do citizens of the defunct state have the
right to resort to Intl law against the
actions taken by the annexing state?
No. it is a purely internal matter. They are
merely objects. One consequence is that
the allegiance of the citizens are
transferred to the succeeding state.
Can the successor state try crimes
committed even before the change of
sovereignty?
Ex. Israel merely acquired the status of a
State after WWII.
Power to punish continues w/o lapse from
authority to authority; laws continue
despite changes of govt or sovereignty,
the only exception being in case of laws
incompatible w/ the constitution and laws
of new sovereign
Case of Adolf Eichmann Mossad
Escapee and went to Argentina in a new
identity. For 10 years, he was nameless.
But the Israeli agents found him and
abducted him. He was tried for warcrimes,
and there were a hundred jews who
testified against him, and he was hanged.
1963 2 years after capture.
Recognition
2 theories
1. Declaratory theory
If an entity already possess the essential
elements of a state, it does not follow that it
should already be considered a state. Because
recognition is political and thus maybe
extended not as a matter of a legal right even
if entity is able to show it has already in its
favor essential elements, recognition is
dependent upon other states, if they would
recognize this entity as a state
2. Constitutive theory
Declares that if an entity is able to show these
elements, it becomes a demandable right
Recognition is an act of state, cannot be
questioned before the court for not being a legal
issue. The authority to extend recognition is
Distinctions
Belligerency
Recognition of PLO
Objects of Recognition
- Maybe extended to a government like if a
new ruler assumes office
- Recognition of state itself
- Recognition of a status of a belligerent
community when there is a conflict
3 kinds of de facto governments
1. Whenever a population overthrows the
legitimate government (successful revolution,
rebels establish their own government)
2. Without overthrowing, a portion of inhabitants
secede
---(ex.
Moro
rebels
assert
independences so they secede from the
government
3. Assumes power in the course of war
Wilson or Tobar principle- prevents recognition
of a govt established by revolution, civil war, coup
detat or other forms of internal violence.
between
Insurgency
and
and
actual
In
1990,
the
NATO
intervention to protect
authorized
military
Right of Equality
Recognized in Art. 2(1) of Charter
Essence of Equality: not equality in no. of
rights or parity in physical power, political
influence or economic status, or prestige, but
all rights of a state, regardless of number,
must be observed and respected by
international community, right to enjoyment
of all its attributes as a member of family of
nations
Ex. Right to acquire territory or make use of
open sea or seize contraband
Rule of par in parem non habet imperium: even
the strongest state cannot assume jurisdiction
sans
o Thalweg Doctrine
UN conference on the law of the Sea