Public International Law Green Notes 2015
Public International Law Green Notes 2015
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llustrations:
(1) The prohibition against the use of force
under the U.N. Charter (Nicaragua Case)
(2) Law on genocide
(3) Principle of Self-Determination
(4) Prohibition against apartheid
(5) Crimes against humanity
(6) Prohibition against slavery and slave trade
(7) Piracy (Brownlie, Magallona)
In the 2012 case Questions Concerning
the Obligation to Prosecute or Extradite
[Belgium v. Senegal (2012)], the ICJ affirmed
the obligation of states parties to the
Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or
Punishment (CAT) to either prosecute alleged
perpetrators or extradite them to another
country with jurisdiction for prosecution (the
Grotian aut dedere, aut punire principle).
The case involved Hissne Habr, the
former president of Chad, who stands charged
in Belgian courts for torture, war crimes, and
crimes against humanity against thousands of
victims during his term in office from 1982
1990. Habr, who has been residing in Senegal
as a political asylee since he was ousted from
power two decades ago, was being sought for
extradition by Belgium.
The ICJ in this case observed that the
prohibition on torture is part of customary
international law and has become a
peremptory norm (jus cogens). However, the
obligation to prosecute alleged perpetrators of
torture only arises after the Convention has
entered into force for that state party. The ICJ
said, after noting that a number of complaints
regarding serious offenses committed by Habr
after that date for which Senegal is obligated
to prosecute, said Belgium is entitled to invoke
Senegals compliance with the Convention
beginning in 1999; in fact, Beligum has been
requesting Senegals compliance since 2000
when the first complaint against Habr was
filed in Senegal.
The ICJ, in this landmark decision,
affirms that memberstates to the CAT may
demand performance of obligations under the
the same, even if the alleged torture occurred
before the applicant state joined the
Convention and even if the alleged torturer or
victims have no connection with the applicant
state. The ruling therefore allows the
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argue
otherwise.
A
Motion
for
Reconsideration and a Supplemental Motion
for Reconsideration subsequently filed by
lawyers on behalf of the Malaya Lolas
highlighting the alleged plagiarism and twisting
of sources are pending with the Court. The
Malaya Lolas, in their Supplemental Motion
for Reconsideration said the High Courts
ruling, penned by Justice Mariano Del Castillo,
"made it appear that these sources support the
assailed judgment's arguments for dismissing
instant petition when, in truth, the plagiarized
sources even make a strong case for the
petition's claims."
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2 Views:
1. Doctine Of Incorporation - rules of
international law form part of the law of the
land and no further legislative action is needed
to make such rules applicable in the domestic
sphere.
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Elements of a state:
Art. 1, Montevideo Convention:
1.
2.
3.
4.
a permanent population;
a defined territory;
government;
capacity to enter into relations with
other States
C. Sources
Primary Sources (Article 38, ICJ Statute)
(1) International Conventions, whether general
or particular, establishing rules expressly
recognized by the contracting states (Treaties);
(2) International Custom, as evidence of a
general custom accepted as law;
(3) General Principles of Law recognized by
civilized nations;
Subsidiary Sources
general principles.
D. Subjects
Foreign State:
1. States
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2. International organizations
The status and powers of an IO is
determined by agreement and not by general
or customary international law.
IOs are considered subjects of
international law if their legal personality is
established by their constituent instrument
(charter).
Further, its constituent rights and
duties, or capacities and immunities, are
limited to those set forth in the treaty creating
the international organization. Thus, legal
personality in this context is a relative concept.
(Magallona)
PRECONDITIONS
PERSONALITY
FOR
3. Individuals
While States have traditionally been
deemed to be subject of international law,
individuals have likewise become in some
degree subjects of that law. However,
individuals may assume the status of subjects of
international law only on the basis of
agreement by states and in specific context,
not in accordance with general or customary
IL.
Illustrations:
(1) Art. 187(c), (d) and (e), UNCLOS:
INTERNATIONAL
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to
all
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(a)
(b)
(c)
A 'treaty' is:
(1)
(2)
(3)
(4)
(5)
an international agreement;
concluded between States;
in written form;
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Invalid Treaties
(1) If the treaty violates a jus cogens
norm of international law (void);
Reservations
fundamental importance.
Grounds for Termination
(1) Expiration
(2) Where
the
treaty
expressly
prohibits that specific reservation
being made; or
(3) Where
the
reservation
is
incompatible with treatys object
and purpose (Reservation to the
term,
or
of a party
accordance with the treaty;
in
withdrawal
of
the
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(5) Supervening
performance;
(6) Conclusion
impossibility
of
inconsistent treaty;
of
subsequent
BAYAN v. Zamora,
G.R. No. 138570, October 10, 2000
Change
of
Circumstance (Rebus sic stantibus)
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Nicolas v. Romulo,
G.R. No. 175888, February 11, 2009
(These are petitions for certiorari, etc.
as special civil actions and/or for review of the
Decision of the Court of Appeals in Lance
Corporal Daniel J. Smith v. Hon. Benjamin T.
Pozon, et al., in CA-G.R. SP No. 97212, dated
January 2, 2007)
The rule in international law is that a
foreign armed forces allowed to enter ones
territory is immune from local jurisdiction,
except to the extent agreed upon. The Status
of Forces Agreements involving foreign
military units around the world vary in terms
and conditions, according to the situation of
the parties involved, and reflect their
bargaining power. But the principle remains,
i.e., the receiving State can exercise jurisdiction
over the forces of the sending State only to the
extent agreed upon by the parties.
As a result, the situation involved is
not one in which the power of this Court to
adopt rules of procedure is curtailed or
violated, but rather one in which, as is
normally encountered around the world, the
laws (including rules of procedure) of one
State do not extend or apply except to the
extent agreed upon to subjects of another
State due to the recognition of extraterritorial
immunity given to such bodies as visiting
foreign armed forces.
Nothing in the Constitution prohibits
such agreements recognizing immunity from
jurisdiction or some aspects of jurisdiction
(such as custody), in relation to long
recognized subjects of such immunity like
Heads of State, diplomats and members of the
Ichong v. Hernandez
101 Phil. 1155 (1957)
Another subordinate argument against
the validity of the law is the supposed
violation thereby of the Charter of the United
Nations and of the Declaration of the Human
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Gonzales v. Hechanova
9 SCRA 230 (1963)
It is contended that the Government of
the Philippines has already entered into two
(2) contracts for the Purchase of rice, one with
the Republic of Vietnam, and another with the
Government of Burma; that these contracts
constitute valid executive agreements under
international law; that such agreements
became binding effective upon the signing
thereof by representatives the parties thereto;
that in case of conflict between Republic Acts
Nos. 2207 and 3452 on the one hand,
and aforementioned contracts, on the other,
the latter should prevail, because, if a treaty
and a statute are inconsistent with each other,
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Taada v. Angara,
G.R. No. 118295, May 2, 1997
Third issue (WTO Agreement and Legislative
Power)
The Constitution has not really shown
any unbalanced bias in favor of any business
or enterprise, nor does it contain any specific
pronouncement that Filipino companies
should be pampered with a total proscription
of foreign competition. On the other hand,
respondents claim that WTO/GATT aims to
make available to the Filipino consumer the
best goods and services obtainable anywhere
in the world at the most reasonable prices.
Consequently, the question boils down to
whether WTO/GATT will favor the general
welfare of the public at large.
This Court notes and appreciates the
ferocity and passion by which petitioners
stressed their arguments on this issue.
However, while sovereignty has traditionally
been deemed absolute and all-encompassing
on the domestic level, it is however subject to
restrictions and limitations voluntarily agreed
to by the Philippines, expressly or impliedly, as
a member of the family of nations.
Unquestionably, the Constitution did not
envision a hermit-type isolation of the country
from the rest of the world. In its Declaration of
Principles and State Policies, the Constitution
"adopts the generally accepted principles of
international law as part of the law of the
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Negotiation
may be undertaken
directly by the head of state but he now
usually assigns this task to his authorized
representatives. These representatives are
provided with credentials known as full
powers, which they exhibit to the other
negotiators at the start of the formal
discussions. It is standard practice for one of
the parties to submit a draft of the proposed
treaty which, together with the counterproposals, becomes the basis of the subsequent
negotiations. The negotiations may be brief or
protracted, depending on the issues involved,
and may even collapse in case the parties are
unable to come to an agreement on the points
under consideration. If and when the
negotiators finally decide on the terms of the
treaty, the same is opened for signature. This
step is primarily intended as a means of
authenticating the instrument and for the
purpose of symbolizing the good faith of the
parties; but, significantly, it does not indicate
the final consent of the state in cases where
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Status
Legal rights
Accident of birth
Free choice
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H. State responsibility
1.
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.
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e.
1. Extradition
f.
a) Fundamental principles
g.
1.
h.
3. Principles:
a. Principle of Specialty - a fugitive
who is extradited may be tried
only for the crime specified in the
request for extradition and such
crime is included in the list of
extraditable offenses in the treaty.
b.
SCRA 341)
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broad
social,
and
on
Civil
and
The UDHR
category of rights:
Covenant
cultural
1.
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Humanitarian
Law
and
It applies to:
(1) all armed conflicts which take
place in the territory of a State
Party,
(2) between its armed forces and
dissident armed forces or other
organized groups
(3) which,
under
responsible
command, exercise such control
over a part of its territory
(4) as to enable to carry out sustained
and concerted military operations
and to implement the Protocol.
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the
sick,
and
(1)
Distinction
Distinguish between civilian population
and combatants.
Proportionality
Action must be focused on attainment
of military objective. No unlimited choice of
means and methods.
(1)
(2)
(3)
(4)
(5)
a) Treatment of civilians
b) Prisoners of war
Article
4,
Geneva
Convention:
4. Law on neutrality
Neutrality is the legal status of a State
in times of war, by which it adopts impartiality
in relation to the belligerents with their
recognition.
The Hague Convention Respecting the Rights
and Duties of Neutral Powers (Oct. 18, 1907)
governs the status of neutrality by the
following rules:
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(Magallona)
UNCLOS)
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2. Archipelagic states
It is a state made up of wholly one or
more archipelagos. It may include other
islands. An archipelago is a group of islands,
including parts of islands, interconnecting
waters and other natural features which are so
closely related that such islands, waters and
natural features form an intrinsic geographical,
economic and political entity, or which
historically have been regarded as such.
Two Kinds of Archipelagos:
(1)
continuous,
expeditious,
and
unobstructed passage in sea lanes
and air routes through or over
archipelagic waters and the
with
Respect
to
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waters.
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State
over
the
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