Allied Political Laws Reviewer 2012 (1)

8/12/2019 Allied Political Laws Reviewer 2012 (1)

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USC SCHOOL OF LAW AND GOVERNANCE

ALLIED POLITICAL LAWS review 2012PUBLIC INTERNATIONAL LAW ELECTION LAWS PUBLIC OFFICERS

Sources: Sl ides and Discus sion o f At ty. DBL.

FOR DIAMOND BATCH USE page 1

PUBLIC INTERNATIONAL LAW

Public International Law (PIL)

Definition: rules and principles of generalapplication dealing with the conduct of states and ofinternational organizations and with their relationsinter se, as well as with some of their relations withpersons, whether natural or juridical (Akehurst,citing Restatement [Third] by the American LawInstitute of Foreign Relations Law of the UnitedStates)

Subjects of International Law Subjects: those that enjoy international legal

personality and being capable of possessinginternational rights and duties, including the right tobring international claims.

Primarily: STATES

Secondarily: International Organizations (e.g. UN,WTO), individuals (protected persons of IHL,insurgents and national liberation movements,minorities), juridical persons (multinationalcompanies), and NGOs (e.g. ICRC, Greenpeace,

Amnesty Intl.)

States, still primarily the subjects of PIL International law is still predominantly made and

implemented by states; International Organizations are still dependent to a

large extent on the willingness of states to supportthem;

Only states can be members of the UN; Only states are entitled to call upon the UN Security

Council in case of threat to peace and security; Only states may appear contentious proceedings

before the ICJ; Only states can present a claim on behalf of a

national who has been injured by another state, ifthere is no treaty to the contrary;

An individual has no individual rights undercustomary international law and is dependent onthe political discretion of the home state

Basic Characteristics of PIL PIL is a horizontal legal system; PIL lacks a supreme authority; Self-help, unlike in domestic sphere applying

domestic law, is normally the means by whichstates enforce their rights: e. g. retorsion (a lawfulact designed to injure the wrongdoing of anotherstate), reprisal (act that is normally illegal butrendered legal by a prior illegal act committed byanother state)

SOURCES (Formal or Legal) OF PIL Art. 38 (1), Statute of ICJ:

Primary:(a) international conventions(b) international custom(c) general principles of law

Subsidiary:(d) judicial decisions and teachings of most highly

qualified publicists

International Conventions/Treaties Whether general or particular and establishing rules

expressly recognized by the contesting States; The term convention includes (and actually

means) treaty Other terms: agreement, pact, understanding,

protocol, charter, statute, act, covenant,declaration, engagement, arrangement, accord,regulation and provision.

Law-making treaties vs. contract treaties

Custom As evidence of a general practice accepted as law; Two elements:

(a) Objective Element [general practice](b) Subjective Element [accepted as law(opiniojuris)]

General Principles of Law Recognized by civilized (peace-loving) nations; Aimed at providing solutions to controversies where

treaty law or customary law provides no guidance; Law refers to both international law and

municipal law (common municipal law) Examples: estoppel, good faith, exhaustion of local

remedies, prescription, etc.

Judicial Decisions and Publicists Subsidiary means only

Subject to Article 59 of the Statute of the ICJ (thedecision of the Court has no binding force exceptbetween the parties and in respect of that particularcase); in other words, there is no doctrine of staredecisis in ICJ decisions;

ICJ decisions are independent of judicial decisionsof other newly created tribunals such as the ICC,etc. for lack of formal relationship between thesetribunals.

Other Possible Sources of PIL: Acts of International Organizations(e.g. UN and

its Organs like GE, IMF, ICAA) Soft Law (guidelines of conduct which are neither

strictly binding norms of law nor completelyirrelevant political maxims)

Equity (Justice) See: -The River Meuse Case(Netherlands vs. Belgium, PCIJ Reports, 1937)-Ex aequo et bono Art. 38 (2), ICJ Statute

Ex aequo et bonomeans court will apply what is goodand equitable.

Hierarchy of the Sources of PIL In the travaux preparatoires (preparatory work) of

Art. 38, it was suggested that the sources as listedshould indicate hierarchy of sources but it was notcarried out. There was only the agreement tocategorize these sources as either primary (3) orsubsidiary (2)

Hence, except forjus cogens (peremptory norms ofgeneral international law), one source is not to betreated as always superior to the other. Thesources of international law are not thereforearranged in a strict hierarchical order.

Guidelines in determining which source of PIL prevailsover the other:

Jus Cogens norms always prevail (see: Art. 53 ofthe Convention on the Law of Treaties, 1969)

Lex posterior derogat priori Lex posterior generalis non derogat priori speciali Lex specialis derogat legi generali Consider Desuetude

Bernhardt (1992): If there is a clear conflict,treaties prevail over custom and custom prevailsover general principles and the subsidiary sources

Jus Cogens Art. 53, Convention on the Law of Treaties (Vienna,

1969): A treaty is void if it conflicts with aperemptory norm of general international law, anorm accepted and recognized by theinternational community of States as a whole asa norm from which no derogation is permittedand which can be modified only by a


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subsequent norm of general international lawhaving the same character.

Examples: prohibition on the use of force, ofgenocide, slavery, gross violation of the right of

people to self-determination, racial discrimination,and torture. Erga Omnes obligations of a state to the

international community (ex. Not to commit/fail topunish International cr imes; not to violate peoplesright to self-determination)

International Law and Municipal Law Which law prevails in case of conflict?

-Theories: Dualism &Monism Monism Intl and mun. legal systems are

fundamentally part of one legal order. this viewconsiders intl law to be superior with mun. lawbeing a mere subset of intl law

Dualist View - Intl Law and Mun. Law are

separate systems. How do rules of international law take effect in

domestic legal system?- Theories: Incorporation& Transformation- Incorporation norms of intl law are deemed

part of national law- Transportationdefines the requisite act which

must be fulfilled before they become part ofnational law

What is the status of PIL in national legal systems?-UK Practice (on treaties and customary IL)-US Practice (on treaties and customary IL)-Dutch Practice (on treaties and decisions of intl.

courts-Philippine Practice (on treaties and GAPIL)

States and Governments Elements of State:

1. permanent population2. defined territory3. government4. capacity to enter into relations with

other States(Art. 1, 1933 Montevideo Convention on the Rights andDuties of States)

Territory Island of Palmas Case (Netherlands vs. US,

Arbitrator Max Huber of PCIJ, 1928)on TerritorialSovereignty;

See again North Sea Continental Shelf Cases onwhether definition of borders is a requirement;

Extent of and jurisdiction over Territory:1. Modes of Acquiring Territory

a) CessionTRANSFER of territory usuall by a treatyfrom one state to another.

- Note: if there were defects in the ceding states titleof the state to which territory is ceded will bevitiated by the same defects applying nemo datquod non habet )see Palmas Case).

b) Occupation acquisition of terra nullius, that isterritory which immediately before the acquisition,belonged to no state.

- Note: a territory is terra nullius either because it

reall did not belong to any state or may have beenabandoned by previous soverign. there isabandonment if there is failure to exercise authority.

c) Discovery of territory is not sufficient to acquire aterra nullius territory as it merely gives inchoatetitle that is an option to occupy the territory within areasonable time, during which time other stateswere not allowed to occupy territory. Thusoccupation requires, effective control amdintention and will to act as sovereign.

d) Conquestnow illegal.2. Law of the Sea (1982 UNCLOS)

Governed by the 1982 UNCLOS III(UNCLOS I-1958)

- Basic Zones: 1. Internal Waters; 2. Territorial Sea,3. Contiguous Zone, 4. Exclusive Economic Zone

and 5. High Seas

Internal Waters- include ports, harbors, rivers, lakes and canals- the coastal state can prohibit entry into its internal

waters by foreign ships, except for ships in distress- when already within internal waters, different legal

questions arise depending on the kind of vesselthat is within the internal water: merchant ships,warships, other foreign non-commercial ships.

- Baseline: (Low Water Mark Method vs StraightBaseline Method)

- the latter use for archipelagic state; we imagine astraight line

- for the former; we compute from low water mark;

we dont imagine a straight line

Territorial Sea- not exceeding 12 nm from the baseline- baseline: 1. normal baseline (low water mark

method and 2. straight baseline method- limitation: right of innocent passage: by

foreignshipps

Contiguous Zone- 24nm from the baseline- coastal state is limited to protective jurisdiction only,

that is to prevent infringement of its customs, fiscal,immigration or sanitary regulations

Exclusive Economic Zone

- 200 nm from baseline- coastal state has sovereign rights over all the

economic resources of the sea, seabed, andsubsoil which includes not only fish but alsominerals beneath the seabed

High Seas- beyond 200 nm from the baseline- as a rule, ships in high sease are government only

by.I. international lawII. law of flag state

- Flag of the State: refers to the nationality of the flag,which is determined by the place of registration

3. Airspace

- COMMON HERITAGE OF MANKIND PRINCIPLE

- aPPlicable to the air space, outer spaceand even the high seas, the term meansthat the exploration and use or utilizationof resources in areas beyond national

jurisdiction shall be the province of allmankind and shall be carried out for thebenefit and in the interests of all countries,irrespective of their degree of economic ofscientific

4. Criminal Jurisdiction, etc.; Extradition

HUMAN RIGHTS OF LAW

the Three Generations or CategoriesA: UN UNIVERSAL DECLARATION OF HUMANRIGHTS1. Civil and Political Rights2. Economic, Social and Cultural RightsB. Opinion of Publicist3. Right to Peace Self-Determinations, common

heritage of mankind principle, environment,development, minority rights.

Government


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-Effective Control (sovereignty, not legitimacy), required;mere existence of government is not sufficient;-Kinds of control: Internal and External-The case of Palestine (State of Palestine as declared in

1988 by PLO)-However, in case of temporary deprivation of effectivecontrol, the state does not cease to exist.

Capacity to enter into relations with other states Article 3, Montevideo Convention: The political

existence of the State is independent of recognitionby the other States. Even before recognition, theState has the right to defend its integrity andindependence.

Limited Capacity to enter into internationalrelations does not prevent the existence of a State,like in the cases of Protectorates, Trusteeshipsand Associated States.

Recognition of State and Governmento Recognition will have legal effects in both

international law and domestic law;o Recognition of State must be distinguished from

Recognition of Government;o Recognition of State is suggested to be an

additional requisite for statehood along withSufficient Degree of Civilization;

Recognition of State-Theories on Legal Effects of Recognition of State:(1) Constitutive - (minority view) posits that

political act of recognition is a precondition to the existenceof legal rights of a state.

(2) Declaratory (prevailing view) posits that

recognition is a mere declaration or acknowledgment of anexisting state of law and fact, legal personality having beenpreviously conferred by operation of law.

-Article 3 of Montevideo Convention acknowledgesDeclaratory Theory

Recognition of Government

Doctrines in Recognition of Government:1. Tobar or Wilson Doctrineprecludes recognition

of government established by revolution, civil war, cuopdetat or other forms of internal violence until freely electedrepresentatives of the people have organized a constitutionalgovernment

2. Stimson Doctrine precludes recognition of anygovernment as a result of external agression

3. Estrada Doctrine - dealng or not dealing with thegovernment established through a political upheaval is not a

judgment on the legitimacy of the said government.

5. De jure Recognition vs. De facto Recognition;Traditional Effects of Recognition

6. But, the European Community stipulated on certaincommon guidelines on recognition ofgovernments.

Jurisdiction Forms: over Persons, Property, or Events/Acts

Case: -Nottebohm Case (Liechtenstein vs.

Guatemala, ICJ,1955) on Nationality Theory Criminal Jurisdiction of national courts-Territorial Principle (see: SS Lotus Case)-Nationality Principle-Protective Principle-Universality Principle

Extradition and Asylum

Immunity from Jurisdiction Sovereign or State Immunity

-Doctrine of Qualified Immunity-The Act of State Doctrine

Diplomatic Immunity-Immunity from Jurisdiction of courts-Other privileges and immunities

Consular Immunity

Immunities of International Organizations Waiver of Immunity

Treaties Read: 1969 Vienna Convention on the Law of

Treaties (VCLT) [took effect on Jan. 27, 1980] VCLT applies only to treaties after entry into force

(Article 4) The travaux preparatoires was carried out by the

International Law Commission (ILC), so itscommentary is one of the best sources ofinterpretation of the VCLT

A treaty per VCLT is an international agreementconcluded between States in written form andgoverned by international law, whether embodied in

a single instrument or in two or more relatedinstruments, and whatever its particulardesignation.

Conclusion/Entry Into Force of Treaties

A. Adoption of the Text of a Treaty: Article 9:1. takes place by the consent of allthe States, or2. in case of treaty at an international conference, it takesplace by the vote of 2/3 of the States present and voting,unless by the same majority they shall decide to apply adifferent rule.

B. Consent to be bound:Article 11:

Consent of a State to be bound by atreaty may be expressed by signature, exchange ofinstruments constituting a treaty, ratification, acceptance,approval or accession, or by any other means if so agreed.-Ratification occurs only when instruments of ratification areexchanged between the contracting states or are depositedwith the depositary. (Arts. 2 (1)(b) and 16.)

C. Entry Into Force-As a rule: as soon as all negotiating

states have expressed their consent to be bound by it,unless otherwise stipulated.

- Article 18: A State is obliged to refrain from acts whichwould defeat the object and purpose of a treaty when: (a) ithas signed the treaty or has exchanged instrumentsconstituting the treaty subject to ratification, acceptance orapproval, until it shall have made its intention clear not tobecome a party to the treaty; or (b) it has expressed itsconsent to be bound by the treaty, pending the entry intoforce of the treaty and provided that such entry into force isnot unduly delayed.

D. Reservation-Article (2)(1)(d): defines reservation as a unilateral

statement.. made by a State, when signing, ratifying,accepting, approving or acceding to a treaty, whereby itpurports to exclude or to modify the legal effect of certainprovisions of the treaty in their application to the State.

-Allowed only when the reservation is accepted byall the states which had signed (not necessarily ratified) oradhered to the treaty.

Case: Reservations to the Genocide ConventionCase (ICJ Advisory Opinion, 1951)

E. Registration:Article 102 (1) of the UN Charter: every treaty

entered into by any Member of the UN after the Chartercomes into force shall as soon as possible be registered withthe Secretariat and published by it.Effect of Non-registration: Art. 102 (2), UN Charter


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Municipal Law and Competence to Conclude TreatiesArticle 46, VCLT:

1. A State may not invoke the fact that its consent

to be bound by a treaty has been expressed in violation of aprovision of its internal law regarding competence toconclude treaties as invalidating its consent unless thatviolation was manifest and concerned a rule of its internallaw of fundamental importance.

2. A violation is manifest if it would be objectivelyevident to any State conducting itself in the matter inaccordance with normal practice and in good faith.

Authorized Representative of the State

Article 7, VCLT:1. A person is considered as representing a State for thepurpose of adopting or authenticating the text of a treaty orfor the purpose of expressing the consent of the State to be

bound by a treaty if:(a) he produces appropriate full powers; or(b) it appears from the practice of the States concernedorfrom other circumstances that their intention was to considerthat person as representing the State for such purposes andto dispense with full powers.2. In virtue of their functions and without having toproduce full powers, the following are considered asrepresenting their State: (a) Heads of State, Heads ofGovernment and Ministers for Foreign Affairs, for thepurpose of performing all acts relating to the conclusion of atreaty;

(b) heads of diplomatic missions, for thepurpose of adopting the text of a treaty between theaccrediting State and the State to which they are accredited;

(c) representatives accredited by States toan international conference or to an internationalorganization or one of its organs, for the purpose of adoptingthe text of a treaty in that conference, organization or organ.

Defective Treaties Head of State disregards constitutional requirement

for ratification (theory) vs. Art. 46 Unauthorized representative Ultra Vires (Art. 47), when restriction had been

made known the the other party Error (Art. 48) Fraud (Art. 49) Corruption of Representative (Art. 50) Coercion of Representative (Art. 51) Coercion by the threat or use of force (Art. 52) Contravenes Jus Cogens(Art. 53)

Termination of Treaties Pacta Sunt Servanda(Art. 26) Grounds for Termination, Denunciation,

Withdrawal, or Suspension:(1) Application of the Treaty (Art. 42)(2) Application of the VCLT (Art. 42)(3) Consent of all the parties, e.g.Desuetude(Art. 54)(4) Discharge through Material Breach (Art. 60)(5) Impossibility of Performance (Art. 61)(6) Rebus Sic Stantibus(Art. 62)(7) Emergence of new Jus Cogens (Art. 64)

(8) Outbreak of War (for bilateral treaties)

State Succession vs.Government Succession

In State succession, all political laws are abrogatedunless retained by affirmative act of the newsovereign while non-political laws continue;

The successor State inherits all the rights, but notthe obligations of predecessor State;

The successor Government inherits all the rights ofthe predecessor Government, but not necessarilythe obligations.

The Law of the Sea 1982 UNCLOS Baseline (Low-water mark Method vs. Straight

Baseline Method) Territorial Sea vs. Contiguous Zone vs. Exclusive

Economic Zone

State Responsibility Internationally wrongful act

Draft Article 3 of the ILC: (a) action oromission attributable to the State under International Law;(b) breach of international obligation of State.Scope of Liability: (1) liable for reparation or compensation,and (2) may be the object of lawful countermeasures by thevictim (e.g. reprisals or retortion)

Imputability Doctrine(Principle of Attribution)A State is liable only for i ts own acts and

omissions, and in this context, the State is identified with itsgovernmental organs and apparatus, not with the population(nor withprivate [vs. ultra vires]acts of government agents).

Cf: ILC Draft Articles on State ResponsibilityCase: Youmans Claim (U.S. vs. Mexico, General

Claims Commission, 1926)- Facts: Mexico , through a Mayor of the town, sent..

(see case)- Held: Mexico was held liable because the troops

had been acting as an organized military unit, underthe command of an officer.

When State becomes liable for Acts of PrivateIndividuals:1. Encouraging individuals to attack foreigners2. Failing to take reasonable care (due diligence) to protectforeigners3. Obvious failure to punish individuals4. Failure to provide injured foreigner opportunity ofobtaining compensation5. Obtaining some benefit from the individuals act6. Express Ratification of the individuals act.

Case: Tehran Hostages Case (United States vs. Iran, ICJ1980)FACTS: hundred of iranian students and demonstrators tookthe US Embassy in Tehran by force in protest at theadmission of deposed leader Shah Reza Pahlevi of Iran intoUS for medical treatment. The Iraninan Security forces didnothing to either prevent this pr address the situationafterwards. the demonstrators seized archives anddocuments held.Held: Iran violated provisions of Vienna Convention onDiplomatic and Consular Relations as it fail to takeappropriate steps to protection.

Minimum International Standard Doctrine:While it is true that when a person resides

in a foreign country, he is deemed to accept the laws andcustoms of that country, such that his national state cannotbase a claim on the fact that he would have been better

treated in his home country, he may however make such aclaim if the foreign countrys laws or behavior fall below theminimum international standard.

Preliminary objections:1. Non-compliance with rules concerning nationality ofclaims. [see: Nottebohm and Barcelona Traction cases];2. Failure to exhaust local remedies (ILC Draft Article 22)[see: Interhandel Case (Switzerland vs. U.S., ICJ Report,1959)]3. Waiver by the State (vs. Calvo Clause)


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4. Unreasonable Delay and Improper Behaviour of injuredalien

International Wars, Civil Wars & Right to Self-

Determination: Jus Ad B ellum Jus Ad Bellum:- Rules Governing the Resort to Armed

Conflict (Lawful War). Jus In Bello:

- Rules Governing the Actual Conduct ofArmed Conflict (Lawful Acts in times ofWar). [International Humanitarian Law(IHL)]

Means of Waging War andCriminal Responsibility: Jus In BelloInternational Humanitarian Law (IHL) governs the laws ofarmed conflict or law of war. It primarily seeks to protectcivilian population and objects. It covers international or non-

international armed conflict, but not mere internaldisturbances.E.g. The 1949 Geneva Conventions and Additional Protocolsprohibit the attack on civilian population or object as suchduring armed conflict

International Criminal Court (ICC), governed by theRome Statute (July 1, 2002) has jurisdiction overthe following crimes:

1. Genocide2. Crimes Against Humanity3. War Crimes4. Crime of Aggression

United Nations (UN) Statute of the International Court of Justice

Jurisdiction:-Contentious Cases and Advisory Opinions

involving interpretation of treaties, any question ofinternational law, breaches of international law

-Only States, including non-members of the N canbe parties

-Jurisdiction is based on consent [OptionalJurisdiction Clause]

-No stare decisis in ICJ Decisions

ELECTION LAWS

Jurisdiction of the COMELEC

- ELECTION CONTESTS

Original: Regional, Provincial, City OfficialAppellate: Mun. (RTC); Barangay (MTC)

[Note: Decision is Final and Executory, hence, remedy isCertiorari (Rule 64; 30 days)

Comelec does not exercise supervision over SKelections. It is with DILG. Comelec only gives technicalassistance to DILG in the conduct of SK elections. (Alunancase)

Comelec can issue writs of Certiorari, Prohibition, and

Mandamus but only in the exercise of its exclusive appellatejurisdiction. This power is concurrent with the SC, so, thetribunal that takes jurisdiction first shall exercise exclusive

jurisdiction over the case. But, note now of SCs mandate toobserver hierarchy of courts.(Relampagos case)

IN DIVISION FIRST, BEFORE EN BANC RULE

Applicable only when COMELEC is asked to exerciseadjudicatory function (QJ). Hence, when exercising purelyadmin function, need not be in division.

E.G. correction of manifest errors is purely admin(includes mere mathematical calculation), hence, en bancmay decide. But not in SANDOVAL CASE (where the issue

was not the correction of manifest error but foremostwhether or not there was manifest error) where the SupremeCourt said it requires adjudicative function,hence, must bedecided in division by the COMELEC.

COMELEC & HRET/SET

LIMKAICHONG VS. COMELEC (2009):

Once a winning candidate has been proclaimed, taken hisoath, and assumed office as a Member of the House ofRep., the jurisdiction of the HRET begins over electioncontests relating to his election, returns, and qualifications,and mere allegation as to the invalidity of her proclamationdoes not divest the Electoral Tribunal of its jurisdiction.

Limkaichong (2009) vs.Codilla (2002)

IN LIMKAICHONG, THE SC DID NOT FIND THEPROCLAMATION VOID AS THE ORDER DISQUALIFYINGTHE WINNING CANDIDATE WAS NOT YET FINAL ANDTHE PROCLAMATION WAS LEGALLY ANDPROCEDURALLY CALLED FOR. IN CODILLA,PROCEDURAL LAPSES THAT RESULTED TO DENIAL OFDUE PROCESS RENDERED THE PROCLAMATION OFTHE WINNING CANDIDATE VOID, THUS THE COMELECRETAINED JURISDICTION DESPITE THEPROCLAMATION IN CODILLA.

Pre-proclamation Controversies in

National Positions:

General Rule: NO PRE-PROC CONTROVERSIESExceptions:

1) Correction of manifest errors;2) Questions affecting the composition or proceeding

of the board of canvassers; and3) Determination of the authenticity and due execution

of certificates of canvass (see: R.A.9369 and Banatvs. Comelec, August, 2009)

Exclusive power to investigate andprosecute election offenses:NOT A CONSTITUTIONAL REQUIREMENT! HENCE, THECOMELEC MAY, BY LAW, EXERCISE CONCURRENTJURISDICTION WITH OTHER PROSECUTORY ARMS OFTHE GOVERNMENT IN THE INVESTIGATION ANDPROSECUTION OF ELECTION OFFENSES ASPROVIDED FOR IN R.A.9369 (See: Banat vs. Comelec,

August 2009)

Effect of Registration and Voting inResidence -Will registration of a voter in a place other than hisresidence of origin result to abandonment of residence? (No,according to Perez vs. Comelec, 317 SCRA 641)

-Will the act of voting by a voter in a place other than his

residence of origin result to abandonment of residence? (Notnecessarily, according to Domino vs. Comelec, 310 SCRA641)

What about Reacquisition of lostcitizenship under R.A. 9225?

R.A. 9225 only provides for re-acquisition of citizenship,not residence. Thus, thecandidate must still show overt actsconstituting reacquisition of residency in the Philippines(e.g. application of Philippine Passport, paying taxes, etc.)[Japzon vs. COMELEC, Jan. 19, 2009]


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Effect of Filing of Certificate of Candidacy

NOT DEEMED RESIGNED; ONLY APPOINTIVE

OFFICIAL

WHO FILED CERTIFICATE OF CANDIDACY WILL BEDEEMED TO HAVE RESIGNED!

Sec. 13, R.A. 9369: Any person holding a public appointiveoffice or position, including active members of the armedforces, and officers, and employees in government-ownedor-controlled corporations, shall be considered ipso factorresigned from his/her office and must vacate the same at thestart of the day of the filing of his/her certification ofcandidacy.

Quinto vs. Comelec (2009; 2010)2009: The Supreme Court ruled that the differential

treatment of persons holding appointive offices as opposedto those holding elective ones is not germane to thepurposes of the law, and thus violated the equal protectionclause.

2010: THERE ARE SUBSTANTIAL DISTINCTIONSBETWEEN ELECTIVE AND APPOINTIVE OFFICIALS.

Quinto vs. Comelec (2010):

Substantial distinctions exist between elective andappointive officials. The former occupy their office by virtueof the mandate of the electorate while the latter by virtue oftheir designation thereto by an appointing authority. Theformer are obviously engaged in partisan political activities

while the latter are strictly prohibited from engaging inpartisan political activity.

R.A. 9369, in relation to Infomercials The Commission shall set the deadline for the filing ofcertificate of candidacy or petition ofregistration/manifestation to participate in the election. Anyperson who files his certificate ofcandidacy within this period shall only be considered as acandidate at the start of the campaign period for which hefiled his certificate of candidacy: Provided, That, unlawfulacts or omissions applicable to a candidate shall effect onlyupon that start of the aforesaid campaign period.

Penera vs. Comelec (Sept. 2009)A person, after filing his/her COC but prior to his/herbecoming a candidate (thus, prior to the start of thecampaign period), can already commit the acts describedunder Section 79(b) of the Omnibus Election Code aselection campaign or partisan political activity.

However, only after said person officially becomes acandidate, at the beginning of the campaign period, can saidacts be given effect as premature campaigning underSection 80 of the Omnibus Election Code. Only after saidperson officially becomes a candidate, at the start of thecampaign period, can his/her disqualification be sought foracts constituting premature campaigning.

SUBSTITUTE CANDIDATE

IF THE OFFICIAL CANDIDATE DIES, WITHDRAWS ORIS DISQUALIFIED FOR ANY CAUSE, ANY PERSONBELONGING TO SAME PARTY AND CERTIFIED BY SAIDPARTY MAY REPLACE THE CANDIDATE.

WHAT IF INDEPENDENT CANDIDATE? RULLODA vs.(COMELEC) 2003 Jan 20 (En Banc)Contrary to respondents claim, the absence of a specificprovision governing substitution of candidates in barangayelections can not be inferred as a prohibition against said

substitution. Such a restrictive construction cannot be readinto the law where the same is not written. Indeed, there ismore reason to allow the substitution of candidates where nopolitical parties are involved than when political

considerations or party affiliations reign, a fact that musthave been subsumed by law. [Note: BARANGAYELECTION IS NON-PARTISAN]

LONE CANDIDATE LAW Upon the expiration of the deadline for the filing of thecertificates of candidacy in a special election called to fill avacancy in an elective position other than for President andVice President, when there is only one (1) qualifiedcandidate for such position, the lone candidate shall beproclaimed elected to the position by proper proclaimingbody of the Commission on Elections without holding thespecial election upon certification by the Commission onElections that he is the only candidate for the office and isthereby deemed elected.

MULTIPLE FILING OF CERTIFICATES OF CANDIDACY

IF HE FILES CERT OF CANDIDACY FOR MORE THANONE OFFICE, HE SHALL NOT BE ELIGIBLE FOR ANY OFTHEM. BUT, BEFORE EXPIRATION OF THE PERIOD FORFILING OF CERTIFICATE OF CANDIDACY, THE PERSONWHO HAS FILED MORE THAN ONE CERT OFCANDIDACY MAY DECLARE UNDER OATH THE OFFICEFOR WHICH HE DESIRES TO BE ELIGIBLE.

MISREPRESENTATION INCERTIFICATE OF CANDIDACY

1. MUST BE MATERIAL: MUST REFER ONLY TO

MATTERS THAT AFFECT ELEGIBILITY ORQUALIFICATIONS!

2. THERE MUST BE DELIBERATE ATTEMPT TOMISLEAD, MISINFORM OR HIDE A FACT.

Effect of Proclamation on Pre-Proc

A pre-proclamation case before the COMELEC is no longerviable; the more appropriate remedies being a regularElection protest or a petition for Quo Warranto.

Exceptions: 1) the BOC was improperly constituted; (2) quowarranto was not the proper remedy; (3) what was filed wasnot really a petition for quo warranto or an election protestbut a petition to annul the proclamation; (4) the filing of a quowarranto petition or an election protest was expressly madewithout prejudice to the pre-proclamtion controversy or wasmade ad cautelam, and (5) the proclamation was null andvoid.

Failure of Elections; 2 Conditions (1) No voting has been held (or, held but suspended anddid not resume or resulted in failure to elect) in any precinctor precincts due to fraud, force majeure, violence orterrorism; and

(2) The votes not cast therein are sufficient to affect theresults of the election. The cause of such failure may arise

before or after the casting of votes or on the day of theelection. [ASKED IN THE BAR MANY TIMES!]

Failure of Elections; to be strictlyconstrued!

The power to declare a failure of elections should beexercised with utmost care and only under circumstanceswhich demonstrate beyond doubt that the disregard of thelaw has been so fundamental or so persistent andcontinuous that it is impossible to distinguish what votes arelawful and what are unlawful, or to arrive at any certain resultwhatsoever; or that the great body of voters have been


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prevented by violence, intimidation and threats fromexercising their franchise. There is failure of elections onlywhen the will of the electorate has been muted and cannotbe ascertained. If the will of the people is determinable, the

same must as far as possible be respected.

Opening of Ballots in Election Contest In election contests, is the tribunal required to open theballot boxes?

ANS: Yes, for as long as the controversy can only beresolved by the perusal, examination, or counting of ballotsas evidence, especially when there is averment of fraud orirregularity affecting the ballots.

Effect of the death of the protestant during the pendency ofan election contest:

Considering that elec tion contest is imbued with publicinterest, unlike in an ordinary suit, the death of the protestant

does not extinguish an election contest. The candidate whois likely to succeed had the protestant been declared thewinner, like a vice-elect, will be the real party in interest.(Poe vs.GMA)

Execution pending appeal allowed inelection cases It is allowed if there are valid and special reasons to grantthe motion for execution pending appeal, and provided thatthe motion for execution is filed within the period to appeal.Besides, the pendency of an election contest is not asufficient basis to enjoin one who has been proclaimed asduly elected from assuming office as required of him by law,otherwise the efficiency of public administration would beimpaired.

Best evidence in election contest cases Where what is involved is the correctness of the number ofvotes of each candidate, the best and most conclusiveevidence are the ballots themselves. But, where the ballotscannot be produced or are not available, the election returnswould be the best evidence, as they are used in the canvassof votes.

Second Placer Rule There is no law that allows a second placer to be declaredthe candidate elect if the proclaimed winner is adjudgeddisqualified or ineligible. [ASKED IN THE BAR MANYTIMES!]Will of the Electorate Rule Mandatory provisions requiring certain steps beforeelections will be construed as directory after the elections, togive effect to the will of the electorate.

Technicalities and procedural niceties in election casesshould not be made to stand in the way of the true will of theelectorate. Laws governing election contests must beliberally construed to the end that the will of the people in thechoice of public officials may not be defeated by meretechnical objections.

LAW ON PUBLIC OFFICERS

Characteristics of PUBLIC OFFICE: Delegation of sovereign functions

Creation by law and not by contractAn oath Salary/Compensation (but, incl. honorary) Continuance of the position Scope of duties Designation of the position as an office.

Public Office, not a Property! "Public office is personal to the incumbent and is not aproperty which passes to his heirs" De la Victoria vs.Comelec, 199 SCRA561 [1991]). The heirs may no longerprosecute the deceased protestee's counterclaim for

damages against the protestant for that was extinguishedwhen death terminated his right to occupy the contestedoffice.

Public Office, not a Property; Exception A public office is not property within the sense of theconstitutional guaranties of due process of law, but is apublic trust or agency;

However, an incumbents right to office maybe consideredproperty within the protection of due process incontroversies relating to the question as to who of two (2)persons is entitled thereto. (Libanan vs.Sandiganbayan [1994])

De Facto Officer vs. UsurperA de facto officer has color of right or title to the office orhas apparent authority to hold the office and has done so ingood faith, while a usurper has neither lawful title norcolor

of right or title to the office; the act of a de facto officer isvalid as if it was done by a de jure officer but that of ausurper is absolutely null and void; the former may beremoved through a direct proceeding only.

Salary of De Facto Officer A de facto public officer cannot be made to reimbursefunds disbursed during his term of office because his actsare as valid as those of a de jure officer. Moreover, as a de facto officer, he is entitled toemoluments for actual services rendered.[Sampayan vs. Daza]

But, the incumbent can recover!An incumbent of a public office may recover from a de facto

officer the salary received by the latter during the time of hiswrongful tenure, even though he (the de facto officer)occupied the office in good faith and under color of title.

A de facto officer, not having a good title, takes the salariesat his risk and must, therefore, account to the de jure officerfor whatever salary he received during the period of hiswrongful tenure.

The Supreme Court has allowed a de facto officer toreceive emoluments for actual services rendered but onlywhen there is no de jure officer.

Who can recover and from whom?-As a rule, the de jure officer cannot recover from thegovernment, but only from the de facto officer, the salary ithad paid to the latter. But, he can recover the salary from thegovernment or the de facto officer, if the governmentcontinues to pay the de facto officer even after notice ofadjudication of the title to the de jure officer, the amount sopaid after the adjudication and notice. (Mechem)

Salary of officer whose appointment is later disapprovedby the CSC:-If the basis for disapproval is not violation of civil servicelaw, say lack of qualification, theappointee is entitled to asalary.

-However, if the disapproval by the CSC is on the ground

that the appointment was made in violation of civil servicelaw, the appointing authority shall be personally held liablefor the salary of the appointee. (Nazareno vs. City ofDumaguete, June 2009)

WHO MAY PRESCRIBE QUALIFICATIONS: CONSTITUTION CONGRESS, BUT:

CONGRESS CANNOT IMPOSE CONDITIONS OFELIGIBILITYINCONSISTENT WITH CONSTITUTIONAL PROVISIONS;


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QUALIFICATION MUST BE GERMANE TO THEPOSITION(REASONABLE RELATION RULE)

CANNOT PRESCRIBE QUALIFICATIONS SO DETAILED

AS TO AMOUNT TO MAKING AN APPOINTMENT INUSURPATION OF EXECUTIVE POWER; CANNOT PRESCRIBE QUALIFICATIONS IN ADDITIONTO THOSE PRESCRIBED EXCLUSIVELY BY THECONSTITUTION DELEGATE OF CONGRESS

SJS vs. PDEA (2008) The Congress cannot validly amend or otherwise modifythe qualification standards for Senators, as it cannotdisregard, evade, or weaken the force of a constitutionalmandate, or alter or enlarge the Constitution. Accordingly,Sec. 36(g) of RA 9165 [Mandatory Drug Test] should be, asit is hereby declared as, unconstitutional.

Frivaldo DoctrineUnlike residence and age qualifications, the qualification ofcitizenship for local elective officials under the LocalGovernment Code of 1991 must only be possessed at thetime the candidate becomes elective official by his validproclamation and at the start of his term. (Frivaldo vs.Comelec [1996)

Is property qualification valid?Maquera vs. Borra (1965): Property qualification isinconsistent with the essence and nature of a republicansystem ordained in the Constitution and the principles ofsocial justice underlying the same. This implies necessarilythat the right to vote and to be voted for shall not bedependent upon wealth of the individual concerned. Social

justice presupposes equal opportunity for all.

May a person be compelled to accept an office?Generally, no. But an elected official who refuses withoutvalid motive to be sworn in shall be held criminally liableunder Sec. 334 of the RPC.Exception: Compulsory military and civil service under Sec.4., Art. II of the 1987 Constitution.

Effects of PARDON: On right to hold public office RPC:

Art. 36. Pardon; its effect. A pardon shall not work therestoration of the right to hold public office, or the right ofsuffrage, unless such rights be expressly restored by theterms of the pardon.

Monsanto vs. Factoran: The pardon granted to petitioner has resulted in removingher disqualification from holding public employment but itcannot go beyond that. To regain her former post as assistant city treasurer, shemust re-apply and undergo the usual procedure required fora new appointment.

Exception (Clemency in Administrative case): When a person is given pardon because he did not trulycommit the offense, the pardon relieves the party from allpunitive consequences of his criminal act, thereby restoringto him his clean name, good reputation and unstained

character prior to the finding of guilt. This signifies that petitioner need no longer apply to bereinstated to his former employment; he is restored to hisoffice ipso facto upon the issuance of the clemency. Petitioner's automatic reinstatement to the governmentservice entitles him to back wages.

Effects of PARDON: On Benefits attached to the office A pardon looks to the future. It is not retrospective. Itaffords no relief for what has been suffered by the offender.It does not impose upon the government any obligation tomake reparation for what has been suffered. This would

explain why petitioner, though pardoned, cannot be entitledto receive backpay for lost earnings and benefits. (Monsantovs. Factoran).

Appointing Authoritys Discretion The appointing authority is given ample discretion in theselection and appointment of qualified persons to vacantpositions, provided that the exercise thereof is in good faithfor the advancement of the employer's interest and not forthe purpose of defeating or circumventing the rights of theemployees under special laws or under valid agreementsand provided further that such prerogatives are notexercised in a malicious, harsh, oppressive, vindictive orwanton manner, or out of malice or spite.

Role of CSC in Appointment: Attestation only Civil Service Commission has no power of appointmentexcept over its own personnel. Neither does it have theauthority to review the appointments made by other offices

except only to ascertain if the appointee possesses therequired qualifications. The determination of who amongaspirants with the minimum statutory qualifications should bepreferred belongs to the appointing authority and not theCivil Service Commission. It cannot disallow an appointmentbecause it believes another person is better qualified andmuch less can it direct the appointment of its own choice.

Next-in-Rank Rule One who is next-in-rank is entitled to preferentialconsideration for promotion to the higher vacancy but it doesnot necessarily follow that he and no one else can beappointed. The rule neither grants a vested right to theholder nor imposes a ministerial duty on the appointingauthority to promote such person to the next higher position.

Thus, an officer lower in rank but of superior qualificationmay be promoted instead.

Appointment vs. Designation Appointment is the selection by the proper authority of anindividual who is to exercise the functions of a given office; Designation, on the other hand, connotes merely theimposition of additional duties, usually by law, upon a personalready in the public service by virtue of an earlierappointment (or election). = No Security ofTenure!

Permanent vs. TemporaryAppointment in Civil ServicePermanent the appointee meets all the qualifications andrequirements including the appropriate eligibility requirement(civil service eligibility requirement); it lasts until lawfullyterminated.Temporarythe appointee meets all the requirements forthe position except theappropriate civil service eligibility. Itshall not exceed 12 months.

Is MIDNIGHT APPOINTMENTprohibited in LOCAL APPOINTMENTS? Items No. 3(d) and4 of CSC Resolution No. 010988 dated 4 June 2001,prohibits the outgoing chief executive from making massappointments after elections. The term massappointments refers to those issued in bulk or in largenumber after the elections by an outgoing local chiefexecutive and there is no apparent need for their issuance.

(Nazareno vs. City of Dumaguete, June 2009).

Career vs. Non-career ServiceCareer characterized by: (1) merit and fitness test[competitive exam] or highly technical qualification; (2)Security of Tenure; and (3) Opportunity for Advancement tohigher career position.

Non-careercharacterized by (1) not based on competitiveexam nor highly technical qualification; (2) Tenure is limitedby law or co-terminus with appointing authority.


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Competitive Examination The Constitutional provisions merely constitute the policy-determining, primarily confidential, and highly technicalpositions as exceptions to the rule requiring appointments

in the Civil Service to be made on the basis of merit a fitnessas determined fromcompetitive examinations. Although exempt from competitive exam, theycannot alsobe removed without cause.

Career Executive Service [CES]

Third Level positions such as Undersecretary, Asst.Secretary, Bureau Director, Asst. Bureau Director, Chief ofDept. Service and other officers of equivalent rank asidentified by the Career Executive Service Board [CESB], allof whom are appointed by the President.They have NO SECURITY OF TENURE, may be removedanytime unless they have been issued CESO rank by thePresident.

HOLD-OVER PRINCIPLE

A PUBLIC OFFICER WHOSE TERM OF OFFICE HASEXPIRED OR WHOSE SERVICES HAVE BEENTERMINATED IS ALLOWED TO CONTINUE HOLDINGOFFICE UNTIL HIS SUCCESSOR IS APPOINTED ORCHOSEN AND HAS QUALIFIED

RATIONALE: PUBLIC INTEREST; PREVENT HIATUS INPUBLICSERVICE RULES:

WHEN LAW PROVIDES FOR IT: INCUMBENT WILLHOLD OVER EVEN IF BEYOND THE TERM FIXED BY

LAW UNTIL SUCCESSOR IS CHOSEN/ APPOINTEDWHEN LAW IS SILENT: UNLESS EXPRESSLY ORIMPLIEDLY PROHIBITED, INCUMBENT MAY HOLD OVER

CIVIL LIABILITY (DAMAGES)

WHEN PERFORMING OFFICIAL FUNCTIONS, PUBLICOFFICERS ARE LIABLE ONLY IN CASE OF MALICE, BADFAITH, GROSS NEGLIGENCE; NOT LIABLE FOR WRONG INTERPRETATION OFLAW; HEADS ARE LIABLE FOR ACTS OF SUBORDINATESONLY WHEN HE HAS AUTHORIZED BY WRITTENORDER THEACT COMPLAINED OF BUT: Section 24 OF LCG OF 1991 provides: Liability forDamages. - Local government units and their officialsare notexempt from liability for death or injury topersons or damageto property.

LIABILITY FOR ACTS OF SUBORDINATESARIAS DOCTRINE (1989):We would be setting a bad precedent if a head of officeplagued by all too common problems-dishonest or negligentsubordinates, overwork, multiple assignments or positions,or plain incompetence is suddenly swept into a conspiracyconviction simply because he did not personally examineevery single detail, painstakingly trace every step frominception, and investigate the motives of every personinvolved in a transaction before affixing, his signature as the

final approving authority.

ALFONSO DOCTRINE (2007); Reiterated in CESA (2008):

A public official's foreknowledge of facts and circumstancesthat suggested an irregularity constitutes an added reason toexercise a greater degree of circumspection before signingand issuing public documents. By failing to prevent theirregularity that a superior had reason to suspect all along orto take immediate steps to rectify, the superior will be heldliable.

SANTILLANO VS. PEOPLE (2010):Arias doctrine was not appied because the documents thesuperior had to approve were not so voluminous so as topreclude him from studying each one carefully. If he had the

best interest of his constituents in mind, he should haveexamined all the project documents, as a good deal oftaxpayers money was involved.

DISCIPLINE: Dishonesty committed outside of duty Dishonesty, in order to warrant dismissal, need not becommitted in the course of the performance of duty by theperson charged. The private life of an employee cannot be segregated fromhis public life. Dishonesty inevitably reflects on the fitness ofthe officer or employee to continue in office and thediscipline and morale of the service. (Remolona vs. CSC[2001].

PUBLIC INTL LAW TRANSCRIPTIONS

SUBJECTS OF INTERNATIONAL LAW

What can be the subjects of International Law? Traditionallyand primarily, of course, states are the subjects ofInternational law. When we say subjects of International law,we are referring to 'persons', juridical or natural persons,who can avail of remedies available in International Law andcan possess rights and privileges. So, as a rule, only statesare recognized as subjects of International Law but modernInternational law has already welcomed the treatment ofother persons which are not juridical even includingindividual persons as can be the subjects of InternationalLaw. Especially with the advent of InternationalHumanitarian Law (IHL), where international force

specifically the International Criminal Court, that took effectin 2002 under the Rome Statute creating it, it deals withpunishment of crimes committed by individuals, crimes suchas genocide, crimes against humanity and even war crimes.

Also, international organizations are also conferred thestatus of being subjects of International Law.

States are primarily the subjects of International Law forcertain reasons. You can mention at least one or two ofthese reasons: 1) only states can be members of the UN,that is a manifestation that states are primarily the subjectsof International Law; 2) claims of individuals against otherstates can only be enforced through the instrumentality ofnational's own state. And international organizations are alsodependent on the cooperation of their own states before theycan enforce their claims internationally. But that is atheoretical concern in International Law.

BASIC CHARACTERISTICS OF PIL

PIL is a horizontal legal system;

PIL lacks a supreme authority; Self-help, unlike in domestic sphere applying

domestic law, is normally the means by whichstates enforce their rights: e. g. retorsion (a lawfulact designed to injure the wrongdoing of anotherstate), reprisal (act that is normally illegal butrendered legal by a prior illegal act committed by

another state)

It is a different kind of legal system it is a legal system but ofdifferent kind, unlike in a domestic legal system where asystem of law may be recognized as higher than othersystems of law. For example, there is a supreme legalauthority in a domestic set-up but not in international law.Even the International Court of Justice (ICJ) cannot beconsidered as a supreme body for at least 2 reasons: 1) its

jurisdiction is based on consent. OPTIONAL JURISDICTIONCLAUSEthe state cannot be compelled to submit itself tothe jurisdiction of the ICJ not unless it consents to be a


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subject of the jurisdiction of the ICJ. So, there's nointernational police.

retorsion and reprisal

You ask the question: if we cannot sue them with legaleffects similar to the domestic sphere and if there is no'international police' in international law, what are theremedies available to aggrieved states? You have theconcepts of retorsion and reprisal.

Retorsion is one way of implementing or enforcing a legalclaim when it cannot be enforced through a police authority.There may be decisions but the problem is with theimplementation or execution of the decision and sosometimes it cannot be executed so states resort tocommonly either retorsion or reprisal. Retorsion is a lawfulact designed to injure the wrong doing of another state.

A good example of retorsion is the withdrawal of economicaid. If state A had been receiving economic aid by state Band for an established wrongful act of state A, state B maywithdraw its economic aid. It's not wrongful to withdraw aneconomic aid because no state is bound to give economicaid to other states. It's not wrongful to withdraw an economicaid because no state is bound to give economic aid to otherstates.

Reprisal, on the other hand, is normally an illegal act but it isrecognized as a valid means of enforcing a claim when it isbased on a prior illegal act committed by another state. 3conditions should be complied with, generally, beforereprisal can be availed of: 1) there should be a prior illegalact committed by the other state; 2) the one making the

reprisal should follow the principle of proportionality that theact done should be proportionate to the illegal act committedby the other state; 3) the state making reprisal must be ableto establish that it has already exerted other effortsdomestically in the other state or by other means such thatreprisal in international law is considered as a remedy of lastresort.

Example: if the national of state A who is residing in state Bhad been a victim of injustice because the private property ofthis national of state A residing in state B had beenexpropriated by the government of state B without paymentof just compensation, what is if possible reprisal following theprinciple of proportionality in state A? State A also may dothe same to a national of state B. that is illegal becausewhen you expropriate, you have to pay just compensationbut state A is not paying just compensation because that isactually reprisal involving this prior illegal act of sate B.

SOURCES (Formal or Legal) OF PIL

Art. 38 (1), Statute of ICJ:

Primary:

(a) international conventions(b) international custom(c) general principles of law

Subsidiary:

(d) judicial decisions and teachings ofmost highly qualified publicists

Primary and subsidiary, this is taken from the Statute ofInternational Court of Justice, Art. 38, par.1: internationalconventions, international customs, general principles of lawand subsidiary sources, judicial decisions and teachings ofmost highly qualified publicists.

The Statute of ICJ Art 38 mentions of internationalconventions. It compasses treaties as well not justconventions because normally if you talk about treaty, it'snormally entered into by states, of course, by just 2 or even

more but a few number of states. So that if it's entered by 2states, then it's a bilateral treaty. If more than 2 could bemultilateral treaty. If it's entered into by a large number ofstates, normally it's not called treaty anymore, it's calledconvention. There is no legal difference in international law ifyou speak of a condition or a treaty. They are treated underthe same source: international convention.

International custom. We ask the question: what is acustom in international law? Custom is regarded as theevidence of general practice accepted as law. It's not law butit had been accepted by states that kind of practice asbinding, meaning non-compliance or non-observance of thatpractice may result to some adverse consequences or evenliabilities in international law. For a practice to be considered

as a customary norm, the following are the elements: 1)objective element; and 2) subjective element.

Objective element, called objective because you refer to theacts of states, whether or not they have been practicing suchnorms or principle. The second one is subjective because itis based on judgment, that is, the judgment of states whetheror not a particular practice had been accepted as a legallybinding norm. we call it opinio juris. Objective element or thegeneral practice, that's easy for international courts todetermine. You could just look at actual practices of states.The difficulty is the determination of opinio juris.

The ICJ does not only render decision in contentious cases,unlike our SC which does not render advisory opinion. ICJ of

the UN renders advisory opinion. So, in 1996, a resolutionwas passed submitted to ICJ by the general assembly on theissue of whether or not the use or the threat of use ofnuclear weapons may be valid in any circumstances.

According to the ICJ in its advisory opinion, resolutionpassed by the general assembly may be considered asbasis for saying that a particular practice had been acceptedby the states as a binding norm. Where to look for evidencethat a particular practice or norm had been accepted bystates as binding? A good example according to the ICJ isresolution of the general assembly that consist of plenaryassembly of all member states of the UN. They agreed tothat resolution. In this case, there were about 50 stateswhich agreed that the use or even the threat of use ofnuclear weapon as illegal. So, with 50 states, it wasaccepted as a binding norm. there were, of course, which didnot agree with the resolution of the general assemblydeclaring the use or even the threat of use of nuclearweapon as illegal. But with 50 states according to the ICJ,that is opinio juris.

General principles of law are recognized by civilizednations and they are aimed at providing solutions tocontroversies where treaty law or customary law provides noguidance. Sometimes, conventions, treaties or evencustomary norms cannot provide for definitive opinions orprinciples on a given controversy. An international tribunalthat is confronted with such a problem may resort to generalprinciples of law. The statute of ICJ provided for this one in

order to fill in gaps between treaties and customary norms.Examples, of course, are mostly practiced domestically likeyour principle of estoppel, good faith, exhaustion of localremedies. Before you can make the state responsible for theacts of its agents in dealing with aliens, exhaustion of localremedies is still a prerequisite. In our case, Mendoza died.So perhaps the heirs of the victims may not have any localremedies at all not unless it will sue the alleged incompetentpolicemen. Then again it will post another international lawissue like the doctrine of act of state.


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Judicial decisions and writings of publicists.Take note,subsidiary only, meaning international courts can make useof them in the absence of clear and categorical conventionsor treaties, customs and general principles of law. But

judicial decisions of the ICJ, Art 59 of the statute, are bindingonly between the parties and in respect of that particularcase. But decisions of ICJ will provide some guidingprinciples when ICJ is confronted with more or less similarissues. But that is not to say that it following stare decisis.Unlike in our local courts where the SC can always say 'thisissue is not novel'. Stare decisis in ICJ decisions, notpracticed. Decisions of ICJ are also independent ofdecisions of other tribunals. Maybe because of the fact thatinternational crimes have become complicated, there's alsothe recent development in international law, especiallyinternational criminal law. After the adoption of the 1949Geneva Convention and the additional protocols in 1977, Iand II, there has been attempts by states to form ad hoccourts to deal with international crimes. You have the ad hoc

courts of the international court tribunal of the formerYugoslavia known in IHL as ICTY and you had also the adhoc criminal court of Rwanda dealing with certain atrocitiescommitted in Rwanda but noting that it may perhapsencounter difficulties in international law on matters of

jurisdiction, states have agreed to create an internationalcriminal court to deal with international crimes. So, we havenow, which took effect on July 1, 2002, the InternationalCriminal Court or the Rome Statute.

What would be the effect of the decisions of the ICJ?Opinions are saying that these decisions are independent ofthis newly created tribunal. So, you cannot say that thedecision of international criminal court should be made onthe ICJ or vice versabecause there is no formal relationship

between these tribunals, these are independent tribunals.

Other Possible Sources of PIL

Acts of International Organizations (e.g. UN and itsOrgans like GE, IMF, ICAA)

Soft Law (guidelines of conduct which are neither strictlybinding norms of law nor completely irrelevant politicalmaxims)

Equity (Justice)

See: -The River Meuse Case (Netherlands vs. Belgium,PCIJ Reports, 1937)

-Ex aequo et bono Art. 38 (2), ICJ Statute

There are, however, other possible sourcesof PIL. Thoseare the main sources and these are the sources ofinternational law in so far as the ICJ is concerned. But thenagain, the ICJ is not the only international court ininternational law, there are other international courts. Thereare even ad hoc arbitration committees or tribunals. Thereare also inter-regional or even regional commissions createdby some states like in Europe. So, there may actually beother possible sources of PIL. So, you can take note of: 1)acts of international organizations.

SOFT LAW- set of guidelines of conduct which are neitherstrictly binding norms of law nor completely irrelevantpolitical maxims. States observe them but if they don't, there

isn't much repercussion if they do not comply with the rules.Example: resolutions issued by some internationalorganizations like World Trade Organization. Like the policyof non-adoption of too-nationalistic-economic policy underWorld Trade Organization. The rule requiring the membersof the WTO not to provide for too restrictive economicpolicies that would affect the flow of goods and evenservices. These are guidelines. In fact, non-compliance withthese rules would only result to, perhaps, arbitration and notnecessarily actual contentious cases.

The ICJ is not prohibited or barred from invoking or usingequity principle in resolving certain cases, even while thisequity principle may not actually conform to certain norms ininternational law.

HIERARCHY OF THE SOURCES OF PIL

Is there a hierarchy of the sources of PIL? In the preparatorywork in international law language from one repertoire, thepreparatory work (like record of the deliberations on thepreparation of the statute) are the sources of analyzing thetrue meanings/interpretations of certain provisions ofinternational conventions. How do you interpret provisionsof international convention? You can make use of thepreparatory work, the history why there is a particularprovision or even convention. It was found out that theinternational law commission suggested that there should behierarchy among the 3 but later on they agreed that thatshouldn't be the case because international law is dynamic

field of law. They should only categorize the sources asprimary or subsidiary.

Therefore, if you are asked the question whether there is ahierarchy of the sources of PIL, there is none except for juscogensnorms.Jus cogens norms are always superior to anycustomary norm or even convention. Even constitutions ofstates may be assailed or questioned if a provision of thatconstitution contradictsjus cogensnorms.

You remember the case of the comfort women, they weredenied representation by the Philippine government whenthey wanted the Philippine government to take the cudgelsfor them because that is exactly the idea, you have to askthe support of your government if you want to enforce a

claim against another state. But SC said rape at the timethese acts were committed was not considered yetcategorically as jus cogens or perhaps erga omnesobligation. So, dili mandated ang Philippine government torepresent the victims (the comfort women) in asking forcompensation from those who committed the act.

My point is, that is the issue involving Justice Del Castillo.Even the Supreme Court committed plagiarism, and it cameout in newspapers, and maybe, who knows the bar examinercan think of this kay gwapo ni nga pangutana dah sainternational law Jus Cogens and Erga Omnes. This isone issue here.

How do you deal with the different sources; Guidelinesin determining which source of PIL prevails over theother.

How do you deal with the different sources? Pananglitanclass, you have different treaties or conventions dealing withthe same subject matter, but adopted in different times,which treaty or convention will prevail? Whenever there is aconflict between a treaty provision and a particular norm,which would prevail, nga wala man kaha nay hierarchy? Inconflict, then there should be a rule.

These are principles that we also follow when we areconfronted with problems dealing with public internationallaw or what we call as general accepted principles of

international law, and our statute. And these are also thesame principles that you also observed in statutoryconstructions. What are these principles?

We have:

Lex posterior derogat priori Lex posterior generalis non derogat priori speciali Lex specialis derogat legi generali

Nganong dili nalang nato ni ininglison. A later norm prevailsover prior or earlier norm or law. A general law that is later in


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adoption cannot abolish or set aside a prior special orspecific lawLex posterior generalis non derogat priorispeciali.And your famous of coursespecial law or normcannot set aside a general norm or law.

You will notice that these are the same principles that weobserve in statutory constructionthat a special law prevailsover a special law, etc. Mao ra na sila class.

So there are treaties or conventions that are general andthere are also treaties or conventions that are specific. Soyou have also to analyze their characteristics.

JUS COGENS

So here, Jus Cogens. What is Jus Cogens? Dont you knowthat this principle is actually found in the Convention on theLaw of Treaties. The Vienna Convention on the Law ofTreaties in 1969 recognizes the acceptance of Jus Cogens

when it says in Article 53: A treaty is void if it conflictswith a peremptory norm of general international lawTherefore, jus cogens are peremptory norms of generalinternational law.

What do you mean by peremptory norms of generalinternational law? These are norms that are accepted andrecognized by the international community of States asa whole as a norm from which no derogation ispermitted and which can be modified only by asubsequent norm of general international law having thesame character.

So what are the examples of Jus Cogens? So wala na-apilang rape. Sakto guro and Supreme Court, nag-plagiarize

lang. Based on the listing of the highly-publicists, these areaccepted as jus cogens: Examples: prohibition on the useof force. That is in fact embodied, it is not just a norm, in theUnite Nations Charter. The UNs Charter is specific that itprohibits the use of force. The prohibition on the commissionon the use ofgenocide, slavery, even the gross violationof the right of people to self-determination, racialdiscrimination, and even torture.

Jus Cogens vs. Erga Omnes

How is Jus Cogens, as a concept, related to Erga Omnesnorm? Jus Cogens only refers to the general idea that thereare norms that the states or the nations as a whole, cannotviolate or disregard. Mao ra na ang meaning sa jus cogens.Therefore, it says for example, that states are bound not toenact laws that would violate the right of people to self-determination because respecting the right of the people toself-determination has already ripen into jus cogens.

Erga Omnes norm, on the other hand, specifically deals withthe obligation of the state. So unsa may kalahian? JusCogens is general, ang Erga Omnes norm is specificbecause it specifically refers to the obligation of the statetowards the international community. Although paryente ra nisila class, murag half-brother half-sister.

bar exam question

In the first question in the recent bar exam, it came out.What happened there? I think the government grantedamnesty to those who committed crimes of killing themembers of the indigenous community. Gi grantan ugamnesty, those who killed the indigenous culturalcommunities. Then the question was: whether the grant ofamnesty violated certain international law?

If you argue that the killing amounted to genocide, becausegenocide is the killing of national, ethnic, racial, or religiousgroup as such, then you can say that the amnesty grantedby the government contravenes the erga omnes norm. Unsa

man diay nang erga omnes norm it is the obligation ofstate towards the international community. What is theobligation in so far as genocide is concerned? It is toprosecute violators of the jus cogens prohibiting the

commission of genocide. Mao na ang erga omnes norm your duty is to prosecute those who committed genocide.There is a note there on the examples of erga omnes norm:Erga Omnes obligation s of a state to the international

community (ex. Not to commit / fa i l to punish

International crimes.) If you fail to punish, that is a violationof erga omnes obligation.

Ingun-anion nalang nato ni pag distinguish, for example. Therightof people to self-determination is jus cogens, the dutynot to violate this right of people to self-determination is ergaomnes norm. Nakuha na niyo ang distinction class?

(Question from Batits: Sir, unsay literal english translation saerga omnes? Ngano kana man nga language ang gigamit

sa international community, taking into consideration thatEnglish language is considered as the universal language?)

(Sir: Good question. I will research on that.) (Pak-pak angtibuok class.)

INTERNATIONAL LAW AND MUNICIPAL LAW

These are fundamental matters in the international law.Relationship between the international law and municipallaw. Which law prevails in case of conflict. By municipal law,we are referring to the Constitution and other local laws. Incase of conflict, will international law prevail, or theconstitution or a municipal law prevail over international law?

There are two theories here. One is the Dualist Theory, andsecond, is the Monist Theory.

Dualism Theory first. In Dualism, we categorize ordichotomize the tribunal deciding the case. Because indualism, there is a recognition that there are two sets of legalsystems in the world. One is the international legal system,and the other is the domestic legal system. And they are notnecessarily related. Such that, we make a distinction if thetribunal or forum deciding the case is domestic, then it isexpected to uphold the domestic law or municipal law. But ifit is an international tribunal or international court that isasked to render a decision, then we expect the internationalcourt to uphold international law over domestic law.

In Monism, the understanding is there is only one legalsystem in the world. Such that domestic laws or constitutionsof states are mere manifestations or expressions ofinternational law. So international law, perhaps underMonism, should always prevail over domestic laws fordomestic laws are only expressions or manifestations ofinternational law.

INCORPORATION& TRANSFORMATION

The same theories on Dualism and Monism would also pointto another theories dealing with the rules of making theinternational law forming part of the domestic legal system.We have Incorporationand Transformation.

How do you distinguish one from the other? InIncorporation, international law forms part of the municipallaw automatically because of a provision usually found in theconstitution, saying that principles of internationalautomatically form part of the domestic law. The bestexample, of course, is our very own Section 2 of Article IIwhen we declare that general accepted principles ofinternational law (GAPIL) form part of the law of the land. Bythat specific provision, with or without any positive oraffirmative act on the part of the government, after theeffectivity of Section 2 of Article II of our Constitution, then


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the generally accepted principles of international law willform part of the law of the land.

Sir, lain lagi ang statute sa ICJ kay wala lagiy GAPIL, kuan

ra lagi to sir - Conventions, Customs, General Principles ofLaw. Former Justice Azcuna explained during thedeliberation of the members of the ConstitutionalCommission that they deliberately use the phrase generallyaccepted principles of international law so that it could covertreaties, conventions, customs, and general principles of law.Kay kung imo ra gud ingnon nga customary law or generalprinciples of law unya naa man poy customary norm, naapay treaties and conventions. Para karga tanan, ingon siJustice Azcuna,ato ning gamitan ug our own word generally accepted principles of international law, coveringtherefore conventions, customs and general principles of law

kadtong primary sources.

Transformation on the other hand, requires a positive or

affirmative act on the part of the organs of the governmentbefore an international becomes part of the domestic law.This would, for example, require that before an internationallaw becomes part of the law of the land, there must be alegislation on the matter. Or perhaps, a general principle ofinternational law becomes part of the law of the landbecause it has been used by our own Supreme Court.Remember, decisions of Courts form part of our legalsystem. So international law can be transformed into adomestic law through the instrumentality of the decisions ofthe Supreme Court, or in many cases through theinstrumentality of our law-making body when a law is passeddealing with the same general principle of international law.In fact, in some international law books, even the recognitionby the Executive Department of a particular international

norm may actually constitute transformation.

So unsay kalahian sa Incorporation ug Transformation.Incorporation is automatic ang formation of international lawin the domestic sphere. This supports what theory Dualism or Monism? This actually reflects the thinking of theMonist since domestic laws are just reflections ormanifestations or expressions of international law, theninternational law should likewise form part of the domesticlaw automatically.

Dualist would espouse for Transformation before aninternational law will become part of our domestic law.Precisely because of the thinking that there are two sets oflegal systems in the world. One is independent from theother and it can only be part of the other if there istransformation, under the Dualist view.

Later on we will talk about UK, US practice, Dutch practiceand Philippine practice after the mockbar exam.

STATES AND GOVERNMENTS

Lets go States and Governments. In some books, theywould refer to opinions and writings of experts and authorsas to the definition of the state. So normally, if state is to bedefined from the perspective mostly of political science orsocial science. That is why the enumeration of the elementsof the state would be: population, territory, government and

sovereignty. But then again, kanang mga opinion of authors-publicists, subsidiary man gud na siya class under Article 38of the ICJ. So my opinion is it would be better to just refer tosomething that is very clear. And there is the enumeration ofthe elements of state in Article 1 of the 1933 MontevideoConvention on the Rights and Duties of States. And thefollowing are the elements:

1. permanent population; 2. defined territory;3. government;and 4. this one is a little different from the usual enumerationby authors - capacity to enter into relations with other States.

So dili jud na actually sovereignty that is required. Just themere capacity to enter into relations with other states. Wewill go to that later on.

Very quickly, permanent population. There is norequirement as to sex - whether male or female. But oneinteresting question is, what is the requirement of populationas an element of stateit must be sufficient. Meaning, that itcan continue to exist. Otherwise, without population, there isno more state. So comes the issue whether or not all males,for example constituting population can be consideredpopulation as an element of state, considering thatbiologically of course males cannot reproduce on their own?How do these people continue the existence of the state?

That is not a legal question because the Vatican City whichis recognized as a state is composed of people not byreason of reproduction. The people there go to Vatican Citynot because they have been born of certain individuals but

they were send there by Catholic Church. What is importantis it is able to continue its existence as a population in anyway. Either naturally, scientifically, by migration, or whatever,for as long as there is permanence of that population.

Defined Territory. In international law, the idea of definedterritory does not require the metes and bounds of theterritory unlike when you create a local government unit. Infact, for so many years, we have not even defined ourarchipelagic baseline, not until last year when we passed RA9255 on the definition our archipelagic baseline. So it doesnot matter whether or not it is not clear in our constitution.Even if you look at our constitution, Article 1. It is not veryclear. In fact, the national territory of the Philippines consistnot just the Philippine archipelago but al other territories over

which the Philippines has exercised jurisdiction or hassovereignty. So in international law, it is not required thatthere should be metes and bounds, area, etc.

Government. There is no required form. What is importantis that the government is able to command obedience fromthe inhabitants. Meaning, it is able to enact laws, it is able toimplement the laws, and whenever there is a violation to thelaw, it is able to punish the violators. In some books, it isreferred to as the internal sovereignty of the state. It is partof the internal sovereignty of the state the ability tocommand obedience.

Capacity to enter into relations with other states. Its notreally, as some author would suggest, that it is really freefrom external control. But that is of course given that itshould be free from external control. But under theMontevideo Convention, mere capacity to enter into relationswith other states would already be sufficient to make thatgroup of people in a territory a state. That is why you havethe associated states, which came out in the bar exam,protectorates, trusteeships. Limited capacity to enter intointernational relations does not prevent the existence of thestate.

Montevideo Convention

So under the Montevideo convention they may be referred..they may be considered as states for the purpose of

determining rights and duties for this group of people.

Islands of Palmas Case

Later on we will study the island of palmas case inNetherlands versus the United States. Theres a gooddiscussion by Max Hubert on the concept of territorialsovereignty. This involves the island of palmas case thatwas disputed by the US and Netherlands after the cession ofthe Philippines by Spain to the United States ok? There wasthis island, i think its in the eastern part of the i mean


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southeastern part of the Philippines. Well discuss that lateron

METHODS OF ACQUIRING TERRITORIES

And then territory and the area of territory which is onesubject of bar exam the idea of terra nullius. You know thereare different methods of acquiring territories. Aside fromprescription, you have occupation.

Occupation

A territory may be considered part of another state byoccupation. But one important requirement as alsodiscussed in the island of palmas case is the requirementthat the territory must be terra nullius. What do we mean byterra nullius? Immediately prior to occupation, discovery andoccupation are actually required? What is terra nullius?

By terra nullius we mean that the territory must not havebeen owned by another state at the time it was discoveredand occupied by the acquiring territory. There are may betwo situations where a territory is terra nullius. 1. When eversince it has not really been discovered and occupied byanother state. 2nd when it had been discovered, orperhaps, it was not acquired because there was nosubsequent occupation by another state.

Remember that when you study occupation, it requires alsocontinuity in the exercise of territorial sovereignty asdiscussed in this case. So, continuity, in the exercise ofterritorial sovereignty will comply with the requirements ofoccupation because what is occupation as mode of acquiringterritory it requires effective occupation. Effective

Occupation. Ok, Island of palmas case, suwayi nag checkon territory.

Government

Government. So as what Ive said as I mentioned earlier, theidea of ability to command obedience, this is what is meantby effective control in this presentation. So mere existence ofgovernment is not sufficient to confer a group of people thestatus of state. There must be effective control and byeffective control we mean ability to command obedience.

In 1988, the DNO declared Palestine as a state of, how doyou pronounce it Palestine? Palestine. Others criticized thisbecause the state of Palestine or Palestine quote and quotedoes not actually have a definite territory. Oh di bah? Howcan this be considered a state? So you must have effectivecontrol over a particular territory as well.

Under the Article 3 of the Montevideo convention, thepolitical existence of the state is independent of recognitionby other states.

Constitutive and Declarative Theory

Ok the recognition of state and government ah kani basic nisa inyong kuan no reviewer constitutive and declaratorytheoryok very quickly lang you know it already. Di ba therewere four elements of state. One two three four some books

would suggest two more. 1. Possession of a certain degreeof civilization and the 2. one recognition by the family ofnations.

But under the Montevideo convention wala na gibutang angadditional two, authors lng na. In fact, contrary to therequirements nga there should be recognition as an elementof statehood. Article 3 of the Montevideo convention evenacknowledges declaratory theory so lets distinguish onefrom the other.

By constitutive theory we mean that it is the recognitiongiven by the family of nations that will make the state a stateor that will make a group of people in a territory considered astate. So statehood is dependent on recognition by the

family of nations. That is called constitutive theory.

In the declaratory theory, recognition has no other legaleffect than just recognizing the already acquired statehoodof a group of people in a given territory. It has no effect itdoes not make that group of people a state but it merelyrecognizes that fact or declares the fact that it is a state.That is the idea of declaratory.

So under Article 3 if you have time kindly take a look atMontevideo convention it supports declaratory theorymeaning a state can be considered a state with or withoutthe recognition of the family of nations and that thisrecognition will not make a group of people in a giventerritory a state, ok?

Tobar or Wilson Doctrine, Stimson Doctrine, EstradaDoctrine

Then you have usahay ig pangutana sa bar exam mgadoctrine2x? Tobar or Wilson Doctrine, Stimson Doctrine,Estrada Doctrine I think four or five years ago wa na gyuylaing ipangutana at any rate these are doctrines inrecognition of government. These are actually unnecessaryquestions because these are not international norms. Theseare just actually practices of some leaders in the past.

Anyway, Tobar or Wilson doctrine on recognitio

Allied Political Laws Reviewer 2012 (1)

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