Ateneo Society of International Law PUBLIC INTERNATIONAL LAW BAR REVIEWER 2019* * This reviewer is based on the Public International Law (PIL) syllabus of the 2019 Bar Examinations. The reference materials used were the following: the PIL Bar Reviewer (2009) of Atty. Sarmiento, Introduction to PIL (2009) of Father Bernas, the Handbook of International Law by Anthony Aust (2010), Principles of International Environmental Law by Philippe Sands (2012), notes from the lectures of Atty. Abad, Atty. Arriola, Ally. Magante, Atty. Aguinaldo and Atty. Sta. Maria, the Powerpoint presentation of Justice Carpio on the West Philppine Sea, the ASIL PIL reviewer of Atty. Macaraeg, the Nationality and Statelessness Handbook (2005) by the Inter, Paliamentary Union with the UNHCR, the Intemational Justice Resource Center commentaries, and previous ASIL PIL. Bar Reviewers of past members of the ASIL Executive Committee. This is dedicated to all ASIL bar takers. One Team. One Dream. 2019 edition by: Bernadette Gabrielle R. Encarnacion, Deric Robert E. Siquian, Rohnwald T. Marcelo, Kolleen Yvonne B. Ricaro, Luis Gonzaga S. Bonoan ur., Jesse John M. Hermaso, Atty. Mark EnojoAteneo Society of International Law PROTECTED MATERIAL The following material is the intellectual property of the Ateneo Society of International Law (“the Society”) and its authors. As such, it is protected by Pertinent laws. The Society and the authors reserve all their rights regarding the reproduction and dissemination of this material. No unauthorized use, storage, or reproduction of this material by any means is allowed unless with the express written authorization of the Society and the authors. The material is sensitive and confidential, and shall be kept within the membership of the Society. By downloading, acquiring Possession, and / or using this document, whether by electronic or other means, the member of the Society agrees to protect the confidentiality of the material, refraining from any and all actions which may lead to its Possession, duplication, or use by non-members of the Society.m. It. Iv. VI. VII. VIII. TABLE OF CONTENTS Concepts of Public International Law. International Law & National Law. Sources of International Law... Subjects of International Law...... Jurisdiction of States. Treaties... State Responsi International Refugee Law... Extradition International Human International Humanitarian Law & Neutrality Law of the Sea. International Environmental Law... Case Doctrines of Philippine PIL Cases.. Current Events... A Digest of The South China Sea Arbitration Case ... Previous Bar Questions ...Ateneo Socie' of International Law I. CONCEPTS OF PUBLIC INTERNATIONAL LAW A. OsuicaT GA Q. What are obligations erga omnes? A. According to the Barcelona Traction case, obligations erga omnes are those obligations of a State towards the international community as a whole. These concern those rights which, by virtue of their importance, interest all States. Since critical rights are involved, any state has the right to bring a complaint against a breach of such obligations. Q. What are some examples of obligations erga omnes? A, Such obligations relating to prevention and punishment of genocide, obligations requiring respect for the right to self-determination and obligations determined by international humanitarian law. B. Jus CoceNs Q. What is jus cogens? (Bar 2012) A. According to Art. 53 of the Vienna Convention on the Law of Treaties (VCLT), it is a peremptory norm of international law which Is a norm accepted and recognized by the international community of states as a norm from which no derogation is permitted and which can only be modified only by a subsequent norm of general international law having the same character. Q, What happens when a treaty conflicts with a jus cogens norm? A. According to Art. 53 of the VCLT, the treaty Is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. Q. What are the rules considered to be jus cogens? A. While there Is a wide acceptance of the existence of jus cogens, there is a wide dispute as to what principles rank as jus cogens. According to a 2006 Report of the International Law Commission (ILC), however, the most frequently cited examples of jus cogens norms are the Prohibition against aggression, crimes against humanity, war crimes, maritime piracy, slavery and slave trade, genocide, racial discrimination apartheid and torture, and the right to self- determination. C, EX AEQUO ET BONO Q. Explain the concept of ‘ex aequo et bono’ (according to right or good / from equity or conscience), A. This principle is found in Art. 38(2) of the Statute of the International Court of Justice (IC3). According to this provision, the parties to a case before the IC) may stipulate and therefore ask the Court to decide their dispute based solely on equity and outside the recognized set of rules under international law. Q. What is its difference from equity? A. Equity, as a generally accepted principle [Art. 38(1)(c), IC} Statute], is also a source of obligation under international law.Ateneo Soci of International Law U1, INTERNATIONAL Law & NATIONAL LAW Q. What is International Law? ‘A: Classic DEFINITION - It is a body of rules and principles of action which are binding upon civilized states in their relations to one another. 'B, 3" RESTATEMENT OF FOREIGN RELATIONS DEFINITION - The law concerned with the Conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical, Q. What is Municipal Law? A. Municipal Law is a product of local custom or legislation that regulates relations between \dividual persons under the state. It is the law of the sovereign over individuals. Q. Explain the dualist and monist theories. A. The dualist theory maintains that international law and municipal law belong to different systems of law. The monist theory maintains that both belong to only one legal system. Q. Is the Philippines a dualist or a monist? A. Bernas and Magallona consider the Philippines to manifest adherence to the dualist theory, and at the same time adopts the doctrine of incorporation with regard to customary laws and treaties which had become customary law. Treaties only become part of the law of the land when concurred in by the Senate in accordance with Article VII, Section 21 of the Constitution, which sets down the mechanism for transforming a treaty into binding municipal law. In Govt of the USA v. Purganan, the Court ruled that the established pattern in jurisprudence in reconciling treaties and the acts of Congress show that the Philippines “lean towards the dualist model." However, in Kuroda v. Jalandoni, the Court applied the two treaties even when the country was not a party thereto under the justification that said treaties were based on the generally accepted principles of international law. Further, Article Il, Section 2 of the Constitution reads: “[t]he Philippines renounces war as an instrument of national policy, adopts the generally accepted Principles of International law as part of the law of the land x x x." This is a monist theory. Q In case of conflict between international & domestic law, which prevails? A. It depends on the theory adhered to by the State in whose jurisdiction the conflict appears. Those who maintain the dualist theory hold that in case of conflict, municipal law prevails. Those Who adhere to the monist theory tend to fall to two categories: one group holds the supremacy of international law (Kelsen), the other group holds the supremacy of domestic law (Lauterpacht), Q. Differentiate Public International Law (PIL) & Private International Law (PRIL). . PIL governs the relationships between and among states and also their relations with international organizations and individual persons. PRIL otherwise known as Conflicts of Law, Is that part of municipal law which determines whether in dealing with a legal situation, the law or Judgment of another state will be recognized and given effect or applied (Coquia). Q Differentiate the doctrine of transformation & doctrine of incorporation. A: Under the 1987 Constitution, international law can become part of the sphere of domestic law either by transformation or incorporation. The transformation method requires that an international law be transformed into a domestic law through a constitutional mechanism (Article VII, Section 21, PHIL CONST.) such as local legislation. The incorporation method applies when, by ‘mere constitutional declaration (Article II, Section 2, PHIL CoNsT.), international law Is deemed toAteneo Soci of International Law have the force of domestic law (Pharmaceutical & Health Care Assn. of the Phil. v. Health Secretary Duque, et al., G.R. No. 173034, October 19, 2007). III. Sources oF INTERNATIONAL LAW Q. What are the sources of International Law? (Bar 2012) A. According to Art. 38(1) of the Statute of the International Court of Justice (102), the sources of international law include: (1) international treaties and conventions; (2) customary international Gu; () generally accepted principles of law (GAPL); and (4) judicial decisions and teachings of the most highly qualified publicists (MHQPs). Q. What is the difference between formal and material sources of IL? &. Formal sources are those legal procedures and methods for the creation of rules of general application which are legally binding on the addressees. Examples of formal sources include {eaislation, treaty making, judicial decision making, and practice of states. Material sources, on the other hand, provide evidence for the existence of rules, which, when proved, have the status of legally binding rules of general application. As such, state practice, UN Resolutions, judicial decisions, treaties, and the writings of most highly qualified publicists are considered’ rmatericl sources in so far as they provide what the obligations are. Q. Is there a hierarchy among the sources? A. No. The sources mentioned in Art. 38(1) of the IC} Statute simply prescribes the order rather than the hierarchy of the sources that the IC) must adhere to. Thus, a distinction must be made between the first three sources as against the fourth source. While the first three (i.e. treaty, custom, GAPL) are primary sources, the fourth (i.e. judicial decisions, teachings of MHQPs) arg subsidiary In nature. As such, judicial decisions and teachings of MHQPs have persuasive value before the court insofar as they aid the interpretation of the primary sources. ‘A. TREATIES Q. What is a Treaty? A: A treaty is an: (a) international agreement; (b) conducted between states; (c) in written form; and (d) governed by international law; (e) whether embodied in a single instrument or In two o- more related instruments, and whatever particular designation they may be given. [VCLT, art. 2(4)(@)] Q. How can one bind his State in entering a treaty? A. Two ways: either (1) the person is a representative of a State; or (2) s/he possesses full powers. (VCLT, art. 7) Q. How are treaties interpreted? Treaties must be interpreted in good faith and in accordance with the ordinary meaning given to the terms of the treaty in thelr context and in light of its object and purpose (VCLT, art. 31). Supplementary means of interpretations include: (a) preparatory works of the treaty; and (b) circumstances to the treaty's conclusion. (VCLT, art. 32) Q. What is the difference between a State-party and a signatory to a treaty? . A State-party is bound to abide by all the provisions of the treaty. A signatory, according to Art, 18 of the VCLT, Is only bound to refrain from doing acts which defeat the object and purpose of the treaty.Ateneo Socie' of International Law Q. What if treaty and custom contradict each other? A. The answer varies. In the Wimbledon case, a treaty that came later than a particular custom prevailed since it manifested the deliberate choice of the parties and the principle of pacta sunt servanda. Article 53 of the VCLT however, emphasizes that a later treaty is "void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.” Q. What is the Philippine practice with regard to treaties? A. The following are the relevant Constitutional provisions: + Foreign loans: Art. VII, Sec. 20 (with prior concurrence of the Monetary Board) + Treaties: Art. VII, Sec, 21 (with concurrence of at least two-thirds of the Senate) + Military bases: Art. XVIII, Sec. 25 (with the U.S.; when the Congress requires, majority of votes cast by the people in a national referendum) + Constitutionality of treaties: Art. VII, Sec. 4 (concurrence of majority of members of the Supreme Court who actually took part in the deliberations) B. CUSTOMARY INTERNATIONAL LAW Q. What is Customary International Law? A. According to the North Sea Continental Shelf Case, it consists of unwritten rules evinced from the generality and uniformity of the practice of States and is adhered to by such states out of a sense of legal obligation or opinio juris. Q. What are the requisites of Custom? ‘A. According to the North Sea Continental Shelf Case, the following are the requisites for a certain practice to achieve customary status: (a) duration; (b) uniformity and consistency of practice; (c) generality of practice; and (d) a sense of legal obligation or opinio juris et necessitates, Q. How long should a practice be before it is considered customary? A. There is no “numerical” requirement. According to the North Sea Continental Shelf Case, although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary law, state practice within the period, no matter how short it might be, should have been both extensive and virtually uniform. Q, Should there be total uniformity for a practice to be considered customary? A. Total uniformity is not required. The IC) in the North Sea Continental Shelf Cases and MHQP Jan Brownlie are one in saying that what is needed is virtual uniformity or consistency. The IC) has recognized in the Asylum Case and in Nicaragua v. United States that uniformity and generality of practice need not be in “in absolute conformity” with the forwarded custom, but the same must be substantial. Q. Should ALL states adhere to a practice for it to be customary? A. No, according to the North Sea Continental Shelf Cases, for a practice to be general, it must be adhered to by majority of ‘specially affected’ states, This means that customary law may even bind only two states, for as long as the party claiming it must prove that the purported custom also binds the other parts, as shown in Right of Passage over Indian Territory. Q. What is opinio juris? (Bar 2008) A. According to the Lotus case and the North Sea Continental Shelf Cases, it is the recognition and feeling of a State that they are conforming to what amounts to a /egal obligation, rather than something that is just done out of courtesy, fairness or morality.Ateneo Socie' of International Law Q. What is the value of Resolutions adopted by the U.N. General Assembly? A. Generally, resolutions and declarations of the UNGA are not considered binding. However, this is not the case when: (a) it concerns internal administrative matters (e.g. finances, admission of new members, etc.); or (b) when such documents are unanimously adopted by all States. Under the second case, such occurrence is usually considered as evidence of opinio. Juris. Q. What is the concept of “persistent objector”? A. A state may not be bound by custom if since the process of formation and development of the Custom, such state has expressed its objection to the practice. The evidence of objection must be clear and unequivocal. Q. How is custom proven? A: State practice may be evidenced by various forms such as treaties, diplomatic correspondence, statements of national leaders and political advisers, and the conduct of states. It must be noted however, that these only arise as customary law if they are characterized by opinio juris, the existence of which is subject to the proof discharged by the state claiming it. Q What is the Philippine practice with regard to customary international law? (Bar 2012) A. According to Art. Il, Sec. 2 of the Constitution, the Philippines “adopts the generally accepted Principles of international law as part of the law of the land.” This provision, more popularly known as the incorporation clause, considers both norms under customary international law and generally accepted principles of law as part of the law of the land. c Ly D -RNATIONAL Q. What are Generally Accepted Principles of International Law? A. General principles of law are principles of municipal law common to the legal systems of the world. These are concepts such as estoppel, reparation, and due process of law. D. JUDICIAL DECISIONS AND MosT HIGHLY QUALIFIED PUBLICISTS, Q. Is the IC3 bound by its prior decisions? (Bar 2013) A. No, according to Art. 59 of the IC) Statute, decisions of the Court have no binding force except as between the parties and in respect of a particular case. The Court does not adhere to the doctrine of stare decisis. @. Can the Court apply decisions of national courts, or other international tribunals (e.g. ICC, ICSID, ITLOS)? A. Yes, Art. 38(1)(d) of the IC} Statute does not distinguish between cases decided by the IC) as against those decided by other courts, whether international or local. Q. Who is a most highly qualified publicist? A. A most highly qualified publicist is one who Is: (a) published; and (b) recognized as an expert in the field of international law he/she is writing about. IV. SuBJECTS OF INTERNATIONAL LAW Q. Who are the subjects of International Law? A. Subjects of international law are those recognized as capable of possessing rights and duties and of bringing international claims. Generally, only States are recognized to be subjects of international law because: (1) it possesses rights anchored on State responsibility; and (2) itsAteneo Socie of International Law ability to bring forth claims against other States. However, as will be shown, other entities such as corporations, international organizations, and individuals now have certain mechanisms by which their claims may be brought forth international tribunals or courts. A. STATES Q. What is a State? A. According to Art. 1 of the Montevideo Convention, a state is one with the following gualifications: (a) a permanent population; (b) defined territory; (c) government; and (d) capacity to enter into relations with other states. Q. Is recognition a criterion for statehood? A. There are two theories: (1) declaratory theory of statehood; and (2) constructive theory of statehood. (1)Declaratory Theory of Statehood Under this theory, recognition is not a criterion for statehood. Article 3 of the Montevideo Convention provides that “[t]he political existence of the state is independent of recognition by the other states.” Provided that the four requisites of statehood concur and that sovereignty was not gained by military force (Art. 11 of the Montevideo Convention), is a state, without the need for other states’ recognition. Oppenheim states that “[)nternational [!]aw does not say that a State is not in existence as long as it isn't recognized.” (2)Constructive Theory of Statehood Constructive theory includes recognition as an additional criterion for statehood. This theory could be traced back as early as 1815, at the Peace Congress of Vienna; the final act of this congress recognized only 39 sovereign states in Europe, and It also established that any future state could be recognized as such only through the acceptance of prior existing states. Q. What are the standards for each requisite of Statehood? A. (a) Population: no numerical requirement; so long as they are capable of maintaining and governing themselves, a population may be had. (b) Defined territory: there is no minimum amount of territory required; so long as there is a place where the population could occupy and function in, a defined territory is present (c) Government: there is no specified kind or type of government required; so long as it exercises sovereignty and supremacy within, a government is Present (4) Capacity to enter into relations with other states: power and right to enter into foreign relations without restraint from another entity. Q. What are the theories of recognition of States? A. There are two: (1) constitutive; and (2) declaratory. On one hand, the constitutive theory states that when a State is recognized by the international community as a state, then it is res of State. The declaratory theory, on the other hand, requires compliance with the four req Statehood as laid down in the Montevideo convention for one to be recognized as a state. B. Inn RGAN] Q. How are International Organizations subjects of international law?Ateneo Soci of International Law A. International organizations are those set up by treaty among two or more states. Some international organizations have the ability to make claims under international law. However, such ability is limited by the organization’s charter. For example, the U.N., in Reparations for Injuries Suffered in the Service of the United Nations, was able to sue for damages caused to an agent through an international claim. While it does not have the same rights and duties as States, it has the legal capacity to do “what Is necessary” in the exercise of its functions and fulfilment of its purposes. (UN Charter, art. 104) Q. What is the principle of specialty? A. According to the Advisory Opinion on the Use of Nuclear Weapons, it is the principle of that governs international organizations wherein they are invested by the State which created them with powers, the limits of which are a function of the common interests whose promotion those states entrust to them, C, ConporaTions Q. How are corporations subjects of international law? A. Corporations, in certain instances, now have the ability to make international claims before tribunals. This is the case when what is entered into is an internationalized contract. When such contracts are entered into by corporations, it acquires a limited capacity, by invoking the rights derived from the contract, Usually, the medium by which these corporations may enforce thelr rights Is arbitration. Q. What are the Ruggie Principles? A. On 24 March 2011, Special Representative Ruggle issued "Guiding Principles on Busienss and Human Rights", for the consideration of the UN Human Rights Council at its June 2011 session ‘The Council endorsed the Guiding Principles on 16 June 2011. The principles are framed in three main pillars: the state duty to protect against human rights abuses, the corporate responsibility to respect human rights, and the need to help victims achieve remedy. These do not create new international obligations nor do they limit or undermine any existing legal obligations a State may have been subject to. Rather, they elaborate the implications of existing standards and practices for States and businesses. They apply to all states and to all business enterprises regardless of location, origin, or nationality. D. Inpiviouais Q. How do individuals become subjects of international law? A. While the classical rule states that humans are mere objects of international law (beneficiaries of rights provided by instruments such as international human rights treaties), they are now considered as subjects, although in a limited way. As a subject, not only may one bring claims, he/she also may be held accountable under international law. In the International Criminal Court, for example, individuals may be tried for the commission of the core crimes, which are: (a) genocide; (b) crimes against humanity; (c) war crimes; and (d) crimes of aggression. V. JURISDICTION OF STATES Q. What is jurisdiction? A. Jurisdiction is the power of the state under international law to regulate or otherwise impact upon people, property and circumstances and reflects the basic principles of state sovereignty, equality of states and non-interference in domestic affairs. It may be achieved by means of three ways: legislative action (prescriptive jurisdiction - i.e. creating, amending or repealing a rule ofAteneo Socie of International Law law), executive action (enforcement jurisdiction ~ i.e. enforcing this rule of law through police power or investigative measures, among others) or judicial action (adjudicatory jurisdiction — i.e. hearing and deciding matters in its national courts and tribunals). Jurisdiction, although primarily territorial, may be based on other grounds recognized under international law that warrant ite extraterritorial exercise; for example, the principle of nationality, Q. What are the 5 principles of jurisdiction under international law? As will be discussed below, a State can lawfully exercise jurisdiction over a certain property, Person or conduct when the following accepted bases of jurisdiction exist: (a) territoriality; (b) nationality; (c) protective principle; (d) universality; and (¢) passive personality. A. TERRITORIALITY PRINCIPLE - A state has absolute, but not necessarily exclusive, power to prescribe, adjudicate and enforce rules for conduct that occurs within its territory, This principle serves as the basic principle of jurisdiction in international law and bars a state from exercising jurisdiction beyond its borders, unless it has jurisdiction under other principles that apply extraterritorially. i. Effective control must be established. (Las Palmas Case) li. Effects doctrine - A state has jurisdiction over acts occurring outside Its territory but having effects within it. (Lotus Case) Q. What are the two principles of the “effects doctrine”? A. SUBJECTIVE TERRITORIAL PRINCIPLE - a state has jurisdiction to prosecute and punish for crimes commenced within the state but completed or consummated abroad. OBJECTIVE TERRITORIAL PRINCIPLE - a state has jurisdiction to prosecute and punish for crimes commenced outside the state but’ consummated within its territory. (Trail Smelter Arbitration) Q, What are the rules on boundaries where states are not islands but parts of a larger land mass? A. According to the Third Restatement: 1. The boundary separating the land areas of two states is determined by acts of the states expressing their consent to its location. 2. Unless a consent to a different rule has been expressed, (a) when the boundary between two states is a navigable river, its location is the middle of the channel of navigation (Thalweg Doctrine); or () when the boundary between two states is a non-navigable river or a lake, its location is the middle of the river or lake. Q. Explain the French and the English Rule over questions of jurisdiction over foreign vessels in the Philippines. ‘A. FRENCH RULE ~ crimes committed aboard a foreign merchant vessel should not be Prosecuted in the courts of the country within whose territorial jurisdiction they were committed, unless their commission affects the peace and security of the territory. ENGLISH RULE ~ crimes perpetrated under such circumstances are in general triable in the courts of the country within whose territory they were committed. The Philippines adheres to this rule,c Ateneo Socie' of International Law Q: Which rule does the UNCLOS apply to determine the nationality of ships? A. Under Article 91(1) of the UNCLOS, ships carry with them the nationality of the State whose flag they are entitled to fly. These states are called flag-States and are empowered to grant their nationality to ships and register such ships in thelr territories, thereby granting them the right to fly their flags. However, the UNCLOS requires @ genuine link between the State and the ship. According to Article 92(1) of the same, the flag-state has exclusive jurisdiction over its vessels on the high seas. NATIONALITY PRINCIPLE - Every state has jurisdiction over its nationals, even when those nationals are found outside of the state. Example: X is a US Citizen living in France, and he failed to respond to a subpoena served by requiring him to be a witness on behalf of the US. By this principle, X can be held in contempt because the US retained its authority over X. (Blackmer v. US) Q. What is the doctrine on effective nationality link? A. Espoused in the Nottebohm Case, this doctrine is used to determine which of the two states of which a person is a national will be recognized as having the right to give diplomatic protection to the holder of dual nationality. Nottebohm states that it is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. Shaw provides that it was a legal manifestation of the link between the person and the state granting nationality and recognition that the person was more closely connected with that state than with any other. Q. Discuss the jurisdiction of a state over corporations and maritime vessels under the nationality principle. A. As to corporations, a state has jurisdiction over corporations organized under its laws. Many states assert jurisdiction over corporations whose principal place of business or registered office is located in their territories. States have also sought to regulate corporations organized or having their principal place of business abroad when these corporations are owned or controlled by their nationals; however, such nationality has been controversial. More controversial still are multi-national corporations which register various addresses for different purposes. As to maritime vessels, the state has jurisdiction over vessels flying its flag (Lotus Case). Each state determines requirements for registration. But flags of convenience might be challenged on the ground of a lack of sufficient / genuine link between the flag-states and their vessels. The same principle is generally applicable to aircrafts and spacecrafts. PROTECTIVE PRINCIPLE - This principle provides that a state may exercise jurisdiction over aliens who have committed acts abroad which threaten the national security or the governmental functions of the particular state concerned. Examples: Plotting to overthrow the government, forging its currency, plotting to break its immigration regulations. UniversALTy PRINCIPLE - This principle refers to a state's exercise of jurisdiction over certain serious offenses, universally regarded as the most heinous by the international community, Irrespective of the location of the crime and even absent any link between 10Ateneo Society of International Law the victim-state and the perpetrators or offenses in question. Examples: Genocide, Crimes against Humanity, War Crimes, Piracy, Terrorism. E, PASSIVE PERSONALITY PRINCIPLE ~ It asserts that a state may apply law ~ particularly criminal law - to an act committed abroad by an alien where the victim of the act was {ts national. The principle is more accepted when applied to terrorist and other organized attacks on a state's nationals by reason of their nationality, or to the assassination of a state's diplomatic representatives or other officials. Example: the U.S. Court had jurisdiction over a criminal proceeding against the several Arab men jacked a Jordanian airline on the basis that some of the nationals taken hostage were Americans. (U.S. v. Yunis) Q. What does a ‘conflict of jurisdiction’ contemplate? Since there are various accepted principles for assuming jurisdiction, more than one state may have a valid claim to jurisdiction. In order to develop more sophisticated modes of resolving conflicts of jurisdiction, U.S. courts developed three modes: “The balancing test,” “international comity,” and "forum non conveniens.” Q. What are the principles governing conflicts of jurisdiction? A. There are different modes to deal with such issue, such as the balancing test, International comity, and forum non conveniens. Q. What is the "balancing test’? A. If the answer is yes to all the following questions, the Court.will have jurisdiction: a. Was there.an actual or intended effect on a state's foreign commerce? b. Is the effect sufficiently large to present a cognizable injury to the plal a violation of the anti-trust law? ©. Are the interests of the state sufficiently strong, vis-8-vis those of other nations, to justify an assertion of extraordinary authority? (Timberlane Lumber Co. v. Bank of America) and, therefore, Q. What is ‘international comity’? A. Even when a state has basis to exercise jurisdiction, it will refrain from doing so if its exercise will be unreasonable. Q. What is ‘forum non conveniens’? A. The application is discretionary with the court - if In the whole circumstances of the case it be discovered that there is real unfairness to one of the suitors in permitting the choice of a forum which is not the natural or proper forum, either on the ground of convenience of trial or the residence / domicile of parties or of its being the focus contractus or locus solutionis (Piper Aircraft Co. v. Reyno). Q. What are the exemptions from the exercise of jurisdiction by states? 1. Act oF State DocTRINE - This common law principle prevents the forum court from examining the legality of certain acts performed in the exercise of sovereign authority within a foreign country (Pinochet Case). This doctrine, a judicially fashioned rule peculiar to American and British law, provides that local courts may not question the legal effect of a recognized foreign sovereign state’s public acts fully executed within such courts’ own territory, and has been described variously as a doctrine of judicial prudence/deference, Judicial restraint, judicial abstention, issue preclusion, conflict of laws, and choice of law. Ex. U.S. courts should decline to rule on the acts of non-U.S. sovereigns that are committed within their own territories. 1Ateneo Society of International Law INTERNATIONAL ORGANIZATIONS AND THEIR OFFICIALS ~ When international organizations and their officials come into contact with a municipal legal system, as a result of their relations with States In which they operate, or with private persons whose activities are subject to the jurisdiction of Such States, they are entitled to jurisdictional immunity and are not subject to local jurisdictions. ‘Such immunity is primarily derived from treaty law, the provisions of which may appear in the constitutive instrument of the organization, and / or a further treaty between the member States which more specifically define the immunities and privileges, and/or in the Headquarters Agreement between the organization and its host State. Said provisions make broad reference to “immunity from jurisdiction”, or “immunity from every form of legal process.” These immunities serve as procedural bars to the jurisdiction of national courts, rather than exemptions from substantive law. Substantively, when an international organization comes into contact with a municipal legal system, usually that of one of its member States, the local law remains the applicable law, but simply that the local court is the wrong forum to apply it. Ex. The World Bank, as an international organization, is immune from suit by an employee alleging sexual harassment since its employment relations are within the grant of Immunity in the International Organizations Immunities Act (IOTA). VI. TREATIES Q. What are the functions of treaties? ‘A, They are sources of international law, they serve as the charter of international organizations, they are used to transfer territory, regulate commercial relations, settle disputes, protect human rights, guarantee investments, etc. But a treaty is not the only means by which a state can enter into a legal obligation. Q. What are the kinds of treaties? A. (1) Multilateral treaties are those that are open to all states of the world. They create norms Which are the basis for a general rule of law. They are either codification treaties or "law- making treaties” or they may have the character of both. (2) Another category includes treaties that create a collaborative mechanism. These can be of universal scope or regional. They operate through the organs of different states, (3) The largest category of treaties are bilateral treaties. Many of these are in the nature of contractual agreements which create shared expectations such as trade agreements of various forms. They are sometimes called “contract treaties.” Q. What are law-making treaties? A. Law-making treaties create legal obligations the observance of which does not dissolve the treaty obligation. According to McNair, such treaties are in principle binding only on parties, but the number of parties, the explicit acceptance of rules of law, and in some cases, the declaratory fature of the provisions produce a strong law-creating effect at least as great as the general practice considered sufficient to support a customary rule. Q. What is the fundamental principle of treaty law? (Bar 2011) A. PACTA SUNT SERVANDA - Treaties are binding upon the parties to them and must be performed in good faith. This principle is reaffirmed in Article 26 of the VCLT and is now customary in nature, Q. Can treaties give rise to customary international law? A. It can. While treaties are generally binding only on the parties, the number of the contracting partles and the generality of the acceptance of specific rules created by the treaty can have the 2Ateneo Societ of International Law effect of creating a universal law in the same customary law. e way that general practice suffices to creat te Q. How can international law become part of the sphere of domestic law under the 1987 Constitution? A. International law can be part of domestic law in either of two wa VII, Sec. 21, 1987 Const.]; or (b) incorporation [Art. II, Sec. Health Care Association of the Philippines v. Austria Martinez, compares and contrasts both methods in light of the Pharmaceutical Case. ys: (a) transformation [Art. 2, 1987 Const.] (Pharmaceutical and :, G.R. No. 173034). The chart below Doctrine of Transformation Doctrine of Incorporation Requires that an international law be transformed into a domestic law through a constitutional mechanism such as _ local legisiation. Thus, treaties or conventional law must go through a process prescribed by the Constitution for it to be transformed into ‘municipal law that can be applied to domestic courts, such as the ratification procedure under Article VII, Section 21 of the 1987 Constitution. ‘Applies when, by mere constitutional declaration, international law is deemed to have the force of domestic law. Thus, generally accepted principles of international law form part of the law of the land, even if they do not derive from treaty obligations, as they are adopted under Article II, Section 2 of the 1987 Constitution, Under Article VII, Section 21 of the 1987 Constitution, treaties/international agreements are transformed into valid and effective laws of the land when they are concurred in by at least two-thirds of all members of the Senate. Under “Article Il, Section 2 of the 1987 Constitution, generally accepted principles of international law are incorporated as part of the law of the land. Generally accepted Principles of international law refer to norms of general or customary international law which are binding on all states; hence, customary international law is deemed incorporate into the Philippine domestic system. ustration: In the Pharmaceutical Case, the International Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted by the World Health Assembly (WHA), an organization that advocated against the promotion of breastmilk substitutes through various WHA Resolutions, had been transformed into domestic law through the Milk Code, a local law that is almost a verbatim reproduction of the ICMBS, but did not adopt the ICMBS provision that absolutely prohibits advertising and promotion of breastmilk substitutes. Instead, the Milk Code expressly provides that advertising, promotion or other marketing materials may be allowed if such materials are duly authorized and approved by the Inter-Agency Committee (IAC). Illustration: ‘Since WHA Resolutions in the Pharmaceutical Case have not been embodied in any local legislation, they must have attained the status of customary law in order to be deemed Incorporated as part of the law of the land. However, the WHA Resolutions adopting the ICMBS and the subsequent ones urging Member States to implement the ICMBS are merely recommendatory and legally non- binding. Thus, unlike what has been done with the ICMBS whereby the legislature enacted most of the provisions into law which is the Milk Code, the subsequent WHA. Resolutions, specifically providing for exclusive breastfeeding from 0-6 months, continued breastfeeding up to 24 months, and absolutely prohibiting advertisements and promotions of breastmilk substitutes, have not been adopted as a domestic law. 13Ateneo Society of International Law WHA Resolutions may constitute “soft law" or non-binding norms, principles and practices that influence state behavior (e.g. UDHR), which do not fall into any of the sources of international law Art, 38 of the IC) Statute, Hence, failing to establish the WHA Resolutions as customary, legislation is necessary to transform their provisions into domestic law. A. 1969 VIENNA CONVENTION oN THE LaW OF TREATIES (VCLT) Q. What is the scope of the VCLT? A. It covers treaties between and among states. It excludes agreements involving international organizations. It also does not cover agreements between states which are to be governed by municipal law. Q. Do oral treaties come under the provisions of the Vienna Convention on the Law of Treaties? &. No. While no particular form is prescribed, the definition found in Article 2 of the VCLT explicitly states that a treaty is an agreement in written form. There are no specific requirements of form in international law for the existence of a treaty, although it is essential that the parties intend te create legal relations as between themselves by means of their agreement. However, an exception to the general rule on oral treaties was carved out by the Eastern Greenland case which ruled that unilateral oral declarations may bind the State whose minister made it. Here, the declaration made was by the Norwegian Minister of Foreign Affairs, M. Ihlen, to the Danish Minister of Foreign Affairs, to the effect that “plans of the Danish Government over Eastern Greenland would meet no opposition on the part of Norway.” Such has been known as the “Ihlen Declaration.” Though not registered with the Secretariat of the League of Nations, a minute of the declaration was prepared and initialed by the Norwegian Minister, and the Norwegian Government admitted as to the content of the declaration. The Danish Government contended that the declaration was in the nature of a binding agreement by which the Norwegian Government waived its objections to the extension of Danish sovereignty over Eastern Greenland, According to Judge Anzilott, the Thlen Declaration, although a “verbal” one, was a walld agreement and as such, was binding upon Norway, particularly since both parties were in agreement as to its existence and tenor and therefore no question of proof was involved. Thus, 2 unilateral oral declaration in the nature of a promise, the facts of which are admitted by the party making it, is internationally binding upon the latter party. Q. Does the 1969 VCLT constitute customary law? &, Yes: mith respect to certain provisions, the 1969 Vienna Convention on the Law of Treaties may be regarded as reflective of customary international law, such as the rules on Interpretation, material breach and fundamental change of circumstances. However, others may tot be so regarded and constitute principles binding only upon States-parties, Q, What are the steps In the creation of treaties? A. l) Negotiation, ii) Authentication of text, ili) Consent to be bound, iv) Entry into force. 14Ateneo Soci of International Law Q. What do negotiations involve? A. Negotiation Is done through foreign ministries. Larger multilateral treaties are negotiated in diplomatic conferences. Negotiators must possess powers to negotiate. An act relating to the conclusion of a treaty by one who has no proper authorization has no legal effect unless confirmed by his state. Q. Who has powers to negotiate? A. A person is considered as a representative of a State If he (a) produces appropriate full powers Or (b) it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State [VCLT, art. 7(1)]. Q. Who are considered as representatives of a State? A. The following are considered as representing their State, without having to produce full powers: (a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of Performing all acts relating to the conclusion of a treaty; (b) heads of diplomatic missions, for the Purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited; (c) representatives accredited by State to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ. [VCLT, art. 7(2)] Q. When do negotiations end? A, It concludes with the signing of the document. Article 9 of the VCLT provides that the adoption of the text of a treaty at an international conference takes place by the vote of two-thirds of the States present and voting, unless by the same majority they shall decide to apply a different rule. ‘The signatures can serve as authentication of the document, Q. How does a State express its consent to be bound? A. Article 11. provides the various ways by which consent to be bound Is expressed. These are: by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed. Q. How does the Philippines ratify a treaty? A. Article VII, Section 21 of the Constitution provides that no treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate. Q. Does treaty withdrawal require Senate concurrence? A. No, treaty withdrawal does not require concurrence of the Senate. Under the Constitution, the concurrence of the legislature is only required in the treaties entered into by the President. Section 21, Article VII of the 1987 Constitution clearly states that "no treaty or International agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate." (Pimentel v. Executive Secretary, GR No. 158088, July 6, 2005) Q. What are reservations? A. Art. 2 of the VCLT defines reservation as a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby It purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State. Q. Must a reservation be consented to by alll parties for it to be effective? 15Ateneo Soc of International Law A. According to the Reservations to the Genocide Convention (IC) Reports, 1951), a State which has made and maintained a reservation that has been objected to by one or more parties to the Convention but not by others, can be regarded as a party to the Convention if the reservation is Compatible with the object and purpose of the Convention. The Court added that compatibility could be decided by States individually since if a party to the Convention objects to a reservation which it considers incompatible with the object and purpose of the Convention, it can consider that the reserving state Is not a party to the Convention. Under this view, it is possible for different legal relationships to arise among parties to the same treaty. Q. When do treaties enter into force? A. Treaties enter into force on the date agreed upon by the parties. Where no date Is indicated, the treaty enters into force once consent has been given. Multilateral treaties generally contain a provision which says how many states have to accept the treaty before it can come into force. Q. How are treaties interpreted? A. Treaties must be interpreted in good faith in light with its object and purpose. They must be interpreted according to the ordinary meaning of the words. Where there are ambiguities in the meaning of a treaty, resort may be made to supplementary sources. (VCLT, art. 31) Thus, the Purpose of the treaty, and the special meaning given by the parties may be appreciated. In case there is conflict among “official texts,” the language that the parties agreed to as authoritative is followed. Q. What are the grounds that would make a treaty invalid? A. Error of fact, fraud, corruption of a representative of a State, and coercion of a State by the threat or use of force. Moreover, a violation of a jus cogens norm invalidates a treaty. Q, What is the difference between amendment and modification of treaties? A. Amendment is a formal revision done with the participation, at least in its initial stage, of al! the parties to the treaty. Modification involves only some of the parties. Q. How are treaties terminated? A. The following are ways in which a treaty may be terminated: (1) expiration of a period, (2) consent of all parties, (3) accomplishment of the purpose, (4) material breach (repudiation not sanctioned by the present Convention), (5) supervening Impossibility of performance, (6) fundamental change of circumstances (rebus sic stantibus), and (7) emergence of a new peremptory norm of general international law. Q. When one state ceases to exist and is succeeded by another on the same territory, is the new state bound by the commitments made by its predecessor? A, No. The “clean slate” rule applies. Article 16 of the 1978 Vienna Convention on the Succession of States with Respect to Treaties state that: “A newly independent State is not bound to maintain in force, or to become a party to, any treaty by reason only of the fact that at the date of the succession of States, the treaty was in force in respect of the territory to which the succession of States relates.” Q. Is there an exception to the “clean slate” rule? A. Yes. (1) A new state may agree to be bound by the treaties made by its predecessor, and (2) the rule does not apply to treaties affecting boundary regimes. Q. What is pacta tertiis nec nocent nec prosunt? 16Ateneo Societ of International Law A. Art. 34 of the VCLT provides that: "[a] treaty does not create either obligations or rights for a third State without It consent." To Brownlie, treaties bind only States parties to it. In cases where 2 State does not want certain provisions of a treaty to apply to it, such exception must be expressed by means of a reservation, done at the time the State ratifies the treaty (Art. 2(1)(d), VcLT). VII. STATE RESPONSIBILITY Q. What is the doctrine of State responsibility? A. State responsibility is a general principle of international law, originally developed to protect the rights of aliens. It arises when a State commits an international wrong against another; hence, in order for a State's International responsibility to set in in favor of an injured State, an internationally wrongful act must first be established. An internationally wrongful act is essentially @ breach of an international obligation, which thereby gives rise to an obligation to make feparation (Chorzow Factory case). According to Shaw, the doctrine of state responsibility emanates from the twin international law doctrines of state sovereignty and equality of states, Q. What are the essential characteristics of State responsibility? A. (1) The existence of an international legal obligation in force as between two particular states; and (2) that there has occurred an act or omission which violates that obligation and which ig Imputable to the state responsible, and finally, (3) that loss or damage has resulted from the unlawful act or omission. Q. When will the international responsibility of a State arise? A. In Phosphates in Morocco, the Permanent Court of International Justice (PCL) declared that when a State commits an internationally wrongful act against another State, international responsibility is established immediately as between the two States. Q. What is the coverage of international responsibility? A. According to MHQP James Crawford, international responsibility covers relations which arise under international law from the internationally wrongful act of a State whether such relations are limited to the wrongdoing State and one injured State or whether they also extend to other States Q. When is there an internationally wrongful act? A. According to Art. 2 of the Articles on State Responsibility (AOSR), two elements are required to establish the existence of an internationally wrongful act of the state. First, the conduct in Question must be attributable to the state under international law. Second, for responsibility to attach to the act of the state, the conduct must constitute a breach of an international legal obligation in force for that state at that time. Q. What are the consequences of an internationally wrongful act? A. According to the Chorzow Factory Case, aside from the obligation of cessation and assurances or guarantees of non-repetition, the consequence of a commission of an internationally wrongful act Involves an obligation to make reparation in an adequate form. Reparation must, so far as Possible, wipe out all the consequences of the illegal act and re-establish the situation which would have existed if the wrongful act had not been committed. Q. Is the characterization of a State’s conduct as ‘internationally wrongful’ affected by that State’s internal law? vAteneo Society of International Law A. No. According to Art. 3 of the AOSR, the characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by the State’s internal law. Q. What is a State organ? A. A State organ includes entities exercising legislative, executive, judicial or any other functions, whatever position it holds in the organization of a State, and whatever its character as an organ of the central government or of a territorial unit of the State, It also includes any person or entity Which has that status in accordance with the internal law of the State. (AOSR, art. 4) Q. Are all acts of a State organ attributable to the State? A. No. However, responsibility may only be excluded in cases where the act had no connection with the official function and constituted a purely private act. Ultra vires acts of an organ are nevertheless considered as an act of the State. Q. Can the conduct of non-State organs exercising governmental functions be attributable to the State? A. Yes, According to Art. 5 of the AOSR, the conduct of any person or entity which is not an organ of a State, but which is empowered by the law of that State to exercise elements of governmental authority, shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance, Q, Can the acts of State organs or entities in excess of their authority or contravention of instructions be attributable to the State? A. Yes. It is clear from Art. 7 of the AOSR that the conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law, if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions. Q. Is conduct directed or controlled by the State attributable to the State? A. Yes. The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction and control of that State in carrying out the conduct. . What conduct can be attributable to the State in the absence or default of official authorities? A. According to Art. 9 of the AOSR, the conduct of a person or group of persons shall be considered an act of a State under international law If the person or group of persons Is in fact exercising elements of the governmental authority in the absence or default of the official authorities, In circumstances such as to call for the exercise of those elements of authority. Q. To whom shall the conduct of an insurrectional movement be attributed? A. It depends. If the movement becomes the new government of a State, then the conduct of the insurrectional movement shall be considered as an act of that State under international law. If the insurrectional movement succeeds in establishing a new State in part of the territory of the pre- existing State, then its conduct shall be considered as an act of the new State under international law. Q, Can a State subsequently ratify the acts of a private person or entity? 18