11/12/18

What is PIL? (page 1, Sarmiento)

Law, defined – a set of rules promulgated by a competent authority, just and obligatory, for the benefit of
common good.
Municipal law is domestic law or the law of the country as opposed to international law.
Unlike in domestic law, there is no common competent authority to promulgate the international law.
Hence, we resort to the Schools of thought of international law: (page 2)
1. Naturalist – recognition of the conscience of man. The inherent capacity of man to distinguish
between right and wrong, and to do the right thing.
2. Positivist – written regulations are needed for its validity. Everything must be written and agreed
upon.
3. Eclectic – badges of naturalist and positivist points of view. This is the school of thought applicable
in the Philippine setting.
Constitutional provisions (Art. 2, Sec. 2, 1987 constitution MEMORIZE; Art. 6, Sec. 23) how do you cure
the superficial conflict between the 2 provisions? There are 2 classes of wars – art. 2, sec. 2, offensive war
– the use of force to carry out a national policy or to pursue our national interest in the international relations;
art. 6, sec. 23, defensive war – when there is a threat to our national existence, it is not a right of the state
to wage war but a solemn obligation to preserve our territorial integrity and very existence.
Hard law (page 4)
Soft law (page 5)
Modes of putting an international principle into our legal system
1. Transformation theories (page 51) – mode of introducing an international law or principle into our
legal system with a positive act from the legislative or a governing law.
2. Doctrine of Incorporation (page 50) – mode of acknowledging the existence of international law
into our legal system without the need of any positive act from our legislature. Applicable in the
Philippines.
Kuroda vs. Jalandoni
WON the Philippines could prosecute criminals of war despite not being a signatory to the Hague
Convention (which provides for the creation of war tribunals after WW II prosecute the war crimes of
Germany).
YES. By the doctrine of incorporation, the Philippines, although not a party to the Hague Convention, can
prosecute war crimes. The generally accepted principles of international law are adopted as part of the law
of the land. A state has a right to set up military tribunals. In furtherance, it is still a part of war to make
them answer for the atrocities committed in the guise of the conduct of war.
11/14/18
Incorporation – for an international law to be part of the domestic law, there is no need for a legislative act
as opposed to transformation wherein a positive legislative act is necessary for international law to be
recognized and applied in the domestic sphere.
LLAMANZAREZ vs COMELEC
Foundling – an abandoned child whose parents are unknown. Hence, it follows that its citizenship is also
unknown.
Who are natural born Filipino citizens? A citizen who does no act to perfect his Filipino citizenship
(Bengson vs HRET).
What are the principles of international law that were incorporated into our legal system? “No person shall
be stateless.” (UDHR).
Generally accepted principles of international law, defined – a product of legal reasoning and judicial logic
which are practiced by most legal systems in the world. It includes general principles of equity, fairness
and justice. (MEMORIZE THE DEFINITION OF G-A-P-I-L sa book)
Exception to the treaty-making power of the president (Art. 2, Sec. 8, 1987 Constitution) – the entry of
nuclear weapons; MEMORIZE: Art. 7, Sec. 21 no treaty or international agreement shall be valid unless
concurred in by 2/3 votes of the senate. BAYAN vs ZAMORA Art. 18, Sec. 25 requisites for the entry of
foreign military power into the country: 1) must be in the form of a treaty; 2) concurred in by the senate; 3)
accepted by the treaty by the other contracting state; and 4) there must be a plebiscite if the law so requires.
For any other kind of treaty, Art. 7, Sec. 21 is applicable but for military treaty, Art. 18, Sec. 25
Why are the requirements in A18,S25 stringent? Because foreign laws of the country to which territory was
ceded shall apply to such territory; hence, to avoid invasion, requirements are stringent.
In the case of Bayan vs Zamora, why was the letter by Hubbard deemed sufficient as acceptance of the
treaty? Because of the doctrine of pacta sunt servanda (which is the bedrock of treaties).
PIMENTEL vs EXECUTIVE SECRETARY: The discretion of the president in international relations
matters is afforded very high respect.
11/19/18
BAYAN vs ZAMORA
Ordinary treaties – A7,S21; Military treaties – A18,S25
No conflict between them under the principle of construction in pari materia.
In foreign relations, is there a participation of the congress in treaty-making process? Note that the Congress
involves both houses – HoR and Senate. The Congress, through the Senate, has a participation in concurring
into the validity of a treaty.
Ratification – act of acceding; what makes a state bound to a treaty; is an executive action according to
jurisprudence; giving of consent to the agreement by the state. The role of the Senate is merely to give
consent. It has no initiatory participation – it cannot say what treaty to enter into and why not another.
There is nothing in the constitution which expressly provide that the president is the chief architect in
Philippine international relations; but jurisprudence says that the president is given full discretionary powers
in matters of foreign relations.
Executive power – power to execute the laws and any government power which is not legislative in nature
and not judicial in nature. (putol yung recording)
11/26/18
The president is the sole authority when it comes to foreign relations.
What is foreign relations? What does it encompass? Treaties, dealings with other nations, how, where, who,
when, and what. The president has sole authority, discretion over foreign policy matters.
What is the limitation? The international law principles of jus cogens and our domestic law which is the
Constitution. In any treaty entered into by the president, the Constitution must be followed.
What is the weight that the Supreme Court gives to the president’s discretion? In a long line of cases, the
SC has held that the discretion of the president in foreign policy matter is given much weight. Why?
Because
1. His decision is instantaneous (ratification is an executive function). In the three branches of
government, his office is the fastest to decide.
2. Wide array of information, of intelligence information that he received from both domestic and
international sources meager as it may be.
In the conduct of foreign policies and other international relation engagements, the president’s discretion is
very wide and afforded very much respect.
You think the president did something wrong, to what extent will you question his discretion?
The remedy there is political (ballot, no legal remedy). Whether we like it or not, we just hope that he is
right in chartering our foreign policy.
Was the president (Duterte) correct in unilaterally, by himself, withdrawing from the treaty in the ICC?
Granting arguendo that all the technicalities, the procedures in the ICC in the treaty was followed, would it
be valid here in the Philippines? If you are arguing in the affirmative, see page 24
The discretion of the president is given a wide array in foreign relations cases. The remedy is political and
not legal.
If arguing in the negative, possible arguments: Doctrine of Necessary Implications. The grant of express
power grants with it all other implied powers necessarily included in the grant of the express one. If you
could create a treaty by the ratification of the president and the concurrence of 2/3 vote of the Senate, then
withdrawal must be made with the concurrence of 2/3 vote of the Senate.
SAGUISAG vs EXECUTIVE SECRETARY:
May an executive agreement modify, enhance, or change a treaty? No.
In the context of international law, the difference between an EO and a treaty does not matter because under
the doctrine of pacta sunt servanda, a contracting state shall follow and implement the content of the treaty
once it has agreed to its terms. In domestic law, there is a distinction – the EO does not have to be concurred
in by the Senate while a treaty has to be.
Academically, a treaty is more permanent in nature while an EO deals with the detail of mere
implementation and adjustments in the treaty. Hence, an EO shall not modify a treaty because the treaty is
more or less permanent (See page 33)
Saguisag vs Exec Sec: Read discussion on “activities”
Lim vs Exec Sec: Did the SC allow the non-submission of the VFA defining the scope of “activities” to the
Senate? No. An EO could fill out the minor details in a treaty but it shall not modify, change, or violate the
provisions of the latter. It is only an implementing machine.
12/03/18
Lim vs Exec Sec: VFA is sanctioned by the mutual defense treaty so we need not go to the Senate for
concurrence. The president could come into an EO when it comes to military treaty for as long as the EO
is in compliance with the treaty.
In Nicolas vs Romulo: when EO contradicts the treaty, the former shall be declared null and void. The
criminal jurisdiction in the VFA and the mutual defense treaty provided that pending trial, custody of the
accused shall be with the Philippines. However, in the Romulo-Kenny agreement entered into by
representatives from the Philippines and the US in the form of an EO, it was provided that pending litigation,
custody of the foreign person accused shall be with the US. This is void because a treaty could not be
modified or changed by an EO. The remedy should have been to amend the treaty with the concurrence of
Senate.
Is the provision that the US shall have custody over the accused after trial a violation of the treaty? No by
the concept of abdication of jurisdiction.
It is a widely-recognized principle in international law that you only have jurisdiction up to what you have
bargained in a treaty regarding foreign members of the military who sojourn in the Philippines. You can
waive jurisdiction up to the extent that you have bargained it in the treaty. We cede a portion of our
sovereignty of our jurisdiction when it comes to a foreign military to which we have a defense treaty with.
(Article 18 section 25 constitution)
Is there a violation of the equal protection clause?
It did not also violate the equal protection clause because there is a substantial distinction between a
foreigner and a local military. Through the treaty, we shed our jurisdiction for the protection that we get
from the military treaty.
What are the sources of international law? See book
What are the challenge in international law: 1) legislation and 2) enforcement since “there is no foreign
force or force in a state who could enforce that (international) law.”
Customs: divide the requirements into objective and subjective phase. (see page 34)
In the objective phase, there is – generality (number of states who practice that custom), consistency (has
it always been practiced?), duration (how long is it practiced?)
Subjective requirement – opinion juris sive neccesitatis – you do it not out of practice but because you
believe that it ought to be done. It has a psychological factor that you are doing it because it is a law.
Persistent objector doctrine (page 36) a state cannot be bound if it is a persistent objector unless the matter
objected to is jus cogens.
General principles of international law – product of legal reasoning and judicial process which is prevalent
or existing in the legal system of the states.
Ex aequo et bono (page 46) – “of what is right and what is just”; the courts shall apply this principle when
there is an agreement between the parties to let the ICJ decide the case based on such principle, or if the
law is silent, or in the absence of any treaty, custom, or general principles of law.
When it comes to an international agreement regarding contracting/guaranteeing foreign loans, the
concurrence of the senate is not needed, but only that of the monetary board (page 24).
12/12/18
Akbayan vs Aquino – in any negotiation, parties must have the right to say something without fear of being
judicially ostracized by reason of what he said in the negotiation.
Some degree of our right to information is limited by the confidentiality of matters discussed in the
construction of a treaty by reason of national security and military and political considerations (page 21).
Right of the president to withdraw from a treaty – power to create includes the power to destroy under the
doctrine of necessary implications. The president may be given discretion but the constitution did not deem
it fit by providing that in entering into a treaty, there must be a concurrence of 2/3 of the senate such that if
you are to withdraw, you must also follow the same process.
Note: change in ownership is not rebus sic stantibus (fundamental change)
VCLT Art. 46 (page 28) – could you invoke internal or domestic laws to invalidate a treaty provision? No,
unless the violation was manifest and a concern of internal law which is of fundamental importance.
VCLT Art. 48-52 (pages 28-29)
VCLT Art. 61 (page 31)
VCLT Art. 62 (page 31)
VCLT Art. 60 (page 31)
VCLT Art. 63 (page 32) severance of diplomatic relations is not a grounds for the extinguishment of treaties
because diplomatic relations and treaties are different sources of obligations under international law. It
could continue despite the non-existence of diplomatic relations and a treaty can even be conducted between
nations without having diplomatic relations. Exception: if it is a treaty which has for its object the diplomatic
or consular relations for the application of treaty.