PUBLIC INTERNATIONAL LAW

Dean Hilario Justino F. Morales01.What is Public International Law?

ANSWER: Public International law is that branch of public law consisting of a body of legal principles, norms and processes which regulates the relations of States and other international persons and governs their conduct affecting the interest of the international community as a whole. It is used interchangeably with law of nations.02.Distinguish International law from Municipal law

ANSWER:

1.-IL is not imposed but adopted by states as a common rule of action among themselves.

-ML is issued by a political superior for observance by those under its authority;

2.-IL is derived from such sources as international customs, conventions or general principles of law.

-ML consists mainly of enactments from law-making authority of the state;

3.-IL applies to relations inter se of states and other international persons.

-ML regulates the relations of individuals among themselves or with their own state;

4.-in IL they are resolved through state-to-state transactions.

-Violations of ML are redressed through local administrative and judicial processes;

5.-in IL there is collective responsibility because it attaches directly to the state and not to its nationals.

-Breaches of ML entail only individual responsibility;

Concepts

03.What is a Jus Cogens norm?ANSWER: A Jus Cogens norm is a peremptory norm of general international law accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law of the same character. It is by its nature binding on every State. The following are norms considered jus cogens in character: 1) Laws on genocide 2) Principle of non-racial discrimination 3) Principle of self determination 4) Laws penalizing crimes against humanity 5) prohibition against slavery, slave trade 6) Laws penalizing piracy.

04.What is obligation erga omnes?

Erga Omnes is an obligation of every State towards the international community as a whole. All states have a legal interest in its compliance, and thus all States are entitled to invoke responsibility for breach of such an obligation. By the nature of jus cogens norms they embody erga omnes obligations. Even as all erga omnes obligations may not be in the nature of jus cogens norms, jus cogens norms necessarily embody erga omnes obligations. Examples of erga omnes obligations are outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.05.What is the concept of Aeguo Et Bono?

ANSWER: This for the application of the principle of what is good and just also known as the rule on equity. It is subject to the requirement that parties to the dispute have to agree thereto as provided in Article 38 (1) of the Statute of the international Court of Justice. 06.What is the Supremacy Clause under Article 103 of the UN Charter?

ANSWER: The Supremacy Clause under Article 103 of the UN Charter provides that in the event of a conflict between the obligations of the Members of the UN under the present UN Charter and their obligations under any other international agreements, their obligation under the present Charter shall prevail.

Examples of obligations of Members of the UN under the present UN Charter are: sovereign equality of States, the duty to settle international disputes in a peaceful manner, prohibition against the threat or use of force against the territorial integrity or political independence of any state, duty to fulfill in good faith the obligations assumed by them in accordance with the present Charter, universal respect for, and observation of, human rights and fundamental freedoms without distinction as to race, sex, language or religion.

07. Distinguish hard law from soft law.

ANSWER: Hard law is used to designate a norm or rule of conduct accepted and recognized by the international community of states as a whole, as a source of law binding on them. It produces obligations which when breached gives rise to international responsibility and, consequently, to reparation.

PUBLIC INTERNATIONAL LAW /P 02Soft law has no binding force and pertains to a statement or declaration of principles with moral force on the conduct of states but no normative character and without intent to create enforceable obligations. Soft law is an expression of non-binding norms, principles and practices that influences state behavior. It does not fall into any of the categories of international law set forth in Article 38, Chapter III of the 1946 Statute of the International Court of Justice. Certain declarations and resolutions of the UN General Assembly fall under this category. Most notable is the UN Declaration of Human Rights which the Supreme Court enforced in various cases. It is resorted to in order to reflect and respond to the changing needs and demands of constituents of certain international organizations like the World Health Organization. (Pharmaceutical and Health care Association of the Philippines vs. Duque III, 535 SCRA 265)

08.Is the World Health Assembly (WHA) Resolutions, absolutely prohibiting advertisements and promotions of breast milk substitutes considered as part of the law of the land?

ANSWER: NO. Unlike what has been done with the International Code of Marketing of Breastmilk Substitutes (ICMBS) whereby the legislature enacted most of the provisions into law which is the Milk Code, the subsequent WHA Resolutions have not been adopted and cannot be considered as part of the law of the land that can be implemented by executive agencies without the need of a law enacted by the legislature. Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into domestic law. (Ibid.)

09.What is customary international law?

ANSWER: Custom or customary international law means "a general and consistent practice of states followed by them from a sense of legal obligation (opinion juris)," which statement contains the two basic elements of custom: the material factor, that is, how states behave, and, the psychological or subjective factor, that is, why they behave the way they do. Customary international law is deemed incorporated in our domestic system. (Ibid.)

10.What do you understand by the phrase "generally accepted principles of international law"?

ANSWER: "Generally accepted principles of international law" refers to the norms of general or customary international law which are binding on all states, i.e., renunciation of war as an instrument of national policy, the principle of sovereign immunity, a person's right to life, liberty and due process, and pacta sunt servanda, among others. They are primary sources of international law because they have the character of jus rationale and are valid through all kinds of human societies(Ibid.)

Sources of International Law

11.What are the sources of international law?

ANSWER:

1.Primary Sources -They are formal sources because they are the methods by which norms of international law are created and recognized.

a.International Treaties and Conventions, whether general or particular, establishing rules expressly recognized by the contesting state. They are sources of international law only when they have been concluded by numerous states for the purpose of confirming, establishing or abolishing a rule of international law. Example: Vienna Convention on the Law of Treaties.

*Treaties may be considered as direct source of international law when concluded by a sizeable number of states, and is reflective of the will of the family of nations.

*Bilateral treaties are sources of particular international law but may become primary sources when different contract treaties are of the same nature, containing practically uniform provisions, and are concluded by substantial number of States.

b.International Customs, as evidence of a general practice accepted as law. It is a set of practices which has grown up between states and has come to be accepted as binding by mere fact of persistent usage over a long period of time. They preclude rules which are binding only on a few or a small number of States. Examples: prohibition against slavery and the prohibition against torture

*Elements of International Customs:

1) General practice by a number of states, characterized by uniformity and consistency

2) Opinio juris, or recognition of that practice as a legal norm and therefore obligatory.

3) Duration- repeated over a considerable period of time

c.General Principles of Law - these are rules derived mainly from natural law, which are observed by the majority of civilized states because they are believed to be good and just. Examples: due process, res judicata, prescription, estoppel, pacta sunt servanda

2. Secondary Sources they are subsidiary means for the determination of rules of law. They are to be regarded merely as authoritative evidence of the state of law.

a. Decisions of International Tribunals, and

b.Teachings and writings of highly qualified publicists

Requisites: 1) writings must be fair and impartial, and

2) must be an acknowledged authority in the field.

PUBLIC INTERNATIONAL LAW /P 03The application of judicial decisions and teachings of publicists by the International Court of Justice is subject to two limitations:

1)it is restricted to the parties to the dispute and is not extended to any other case, including a case involving the same parties, and

2)these decisions may also be applied as subsidiary means for the determination of rules of law, which is quite distinct from the status of sources of law. They serve to evidence or ascertain the existence or status of a principle as law.

12.Are resolutions and declarations of the UN General Assembly a source of international law?

ANSWER: YES. The emerging view is that resolutions and declarations of the General Assembly have obligatory effect upon member States and are thus considered a source of international law.. This thesis finds support in Article 3(10 of the UN Charter empowering the General Assembly, inter alia, to initiate studies and make recommendations for the purpose of encouraging the progressive development of international law or its codification. Thus, if a resolution or declaration of the General Assembly is accepted by the majority of the UN members, then the resolution or declaration develops into a customary law which under Article 38 of the Statute of the ICJ, is considered as primary source of international law.

13.How may international law become a part of domestic law?

ANSWER:

1.Doctrine of Incorporation- The Incorporation Clause (Article II, Section 2, PC) prescribes that the Philippines adopts the generally accepted principles of international law as a part of the law of the land. It is a formal recognition of general international law a part of the law of the land. The incorporation method applies when, international law is deemed to have the force of domestic law. No further legislative action is needed to make such rules applicable in the domestic sphere.

For these principles of international law to become part of national law they must be of customary or general international law, i.e. binding on all States. It further decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments.

"Generally accepted principles of international law" refers to the norms of general or customary international law which are binding on all states, i.e., renunciation of war as an instrument of national policy, the principle of sovereign immunity, a person's right to life, liberty and due process, and pacta sunt servanda, among others. They are primary sources of international law because they have the character of jus rationale and are valid through all kinds of human societies. (Pharmaceutical, supra )

2.Doctrine of Transformation- (either through legislative enactment or under the Treaty Clause) This doctrine holds that the generally accepted rules of international law are not per se binding upon the state but must first be transformed into domestic law through a constitutional mechanism such as local legislation by the lawmaking body. Treaties may also become part of the law of the land pursuant to the Treaty Clause (Article VII, Section 21, PC) which is a process of transforming a treaty or international convention into national law.

*A customary norm becomes part of the law of the land by virtue of the Incorporation Clause. A customary norm is incorporated into the national law under the Incorporation Clause.

*A conventional rule is transformed into a valid and effective domestic clause under the Treaty Clause of the Constitution.

To be internalized into national law and before they may be applied in Philippine jurisdiction, norms and principles of objective international law must comply with the foregoing methods of internalization. Thus, treaties or conventional international law must go through a process prescribed by the Constitution for it to be transformed into municipal law that can be applied to domestic conflicts.In Pharmaceutical, supra, it was ruled that the World Health Assembly (WHA) Resolutions, absolutely prohibiting advertisements and promotions of breast milk substitutes are not considered as part of the law of the land. Unlike what has been done with the International Code of Marketing of Breastmilk Substitutes (ICMBS) whereby the legislature enacted most of the provisions into law which is the Milk Code, the subsequent WHA Resolutions have not been adopted and cannot be considered as part of the law of the land that can be implemented by executive agencies without the need of a law enacted by the legislature. Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into domestic law. 14.How are conflicts between International law and Municipal Law resolved?ANSWER:

1. The basic rule is to reconcile or harmonize the apparent conflict, thereby giving effect to both.

2. If the conflict is irreconcilable, apply the law of the forum (lex forei): a) where the conflict is elevated to an international tribunal, then international law is more paramount because international law provides the standard by which to determine the legality of a States conduct;

b) where the controversy is brought before a local tribunal, the tribunal will uphold the superiority of its municipal law.PUBLIC INTERNATIONAL LAW /P 04

3. In Philippine jurisdiction:

a. Philippine Constitution vs international law principle: the Constitution prevails.

Rationale: Art. VIII, Sec 5(2) (a) of the Philippine Constitution empowers the Supreme Court to declare a treaty or executive agreement unconstitutional. Also in Secretary of Justice vs. Lantion, GR No.139465, January 18, 2000, it was held that in states where the Constitution is the highest law of the land, both statutes and treaties may be invalidated if they are in conflict with the Constitution.

b. Exercise of police power: the municipal law prevails.

c. If International Law (treaties or conventions) is in conflict with a statute: A treaty has two aspects- as an international agreement between states, and as a municipal law for the people of each state to observe. Under the Doctrine of Incorporation the rules of international law are given equal standing with, but are not superior to, national legislative enactments in the municipal sphere. Hence, a treaty may repeal a statute and a statute may repeal a treaty. Thus, the principle of lex posterior derogat priori, that which comes last in time will be upheld by the local tribunal. The Constitution also authorizes the nullification of a treaty not only when it conflicts with the fundamental law, but also when it runs counter to an act of Congress. (Lim vs Arroyo, GR No. 151455 April 11, 2002)

15. What may be subject of Public International Law?ANSWER: A subject of international law is an entity that has rights and responsibilities under the law. It has an international personality that it can directly assert rights and be held directly responsible under the law of nations. It can be a proper party in transactions involving the application of the law of nations among members of international communities. The subjects are:

1.Direct subjects- a) States b) colonies and dependencies c) mandates and trust territories; belligerent communities d) The Vatican e) the United nations; international administrative bodies and f) to a certain extent, individuals.

While international law recognizes the individual natural person as subject, it is not however by reason of general international law or international custom. His personality is derived from the collective will of States expressed in an international convention. The individual becomes a subject of international law by reason of conventional international law, not on account of customary international law. (Magallona, Merlin M., The Supreme Court and International Law: Problems and Approaches in Philippine Practice. UP Law Center Institute of International Legal Studies, 2010)2.Indirect subjects a) international organizations b) individuals; and c) corporations.

3.Incomplete subjects a) protectorates b) federal states c) mandated and trust territories

16. What are objects of international law?

ANSWER: A person or thing in respect of which rights are held and obligations assumed by the subject. It is not directly governed by the rules of international law. Its rights are received and its responsibilities imposed indirectly through the instrumentality of an intermediate agency.17. What is the concept of association under international law? What are the requisites for an association to be lawful?

ANSWER: An association under international law is a formal arrangement between a non-self-governing territory and an independent State whereby such territory becomes an associated State with internal self-government, but the independent state is responsible for foreign relations and defense. An association is formed between two states of unequal power voluntarily establish durable links. The associate delegates certain responsibilities to the other, the principal, while maintaining its status as a state. It is an association between sovereigns. The associated state arrangement has usually been used as a transitional device of former colonies on their way to full independence. (Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain, 568 SCRA 402)

For an association to be lawful, it must be subject to UN approval upon compliance with the following general conditions prescribed in a UN General Assembly Resolution: 1) the population must consent to the association and 2) the association must promote the development and well-being of the dependent state or the non-self governing territory.

State Sovereignty

18.What is the Doctrine of Sovereign Immunity of States? What are the basis of immunity from suits of a foreign state?ANSWER: The Doctrine of Sovereign Immunity of States is a universally recognized principle which exempts a state from the jurisdiction of other States including the right not to be sued in the courts of another without its consent or unless consent is waived. State immunity includes not only exemption of the States property from taxation or attachment wherever the property is located but also the exemption of its public vessels from being searched, detained, seized by any State. The basis of immunity from suits of a foreign state are the twin principles of independence and equality of states pursuant to the maxim par parem habet non imperium (an equal has no dominion over an equal)

(Republic of Indonesia vs. Vinzon, 405 SCRA 126) PUBLIC INTERNATIONAL LAW /P 05State Immunity from Suit

19.What is State Immunity from Suit? Does it apply to foreign governments? Can the right to state immunity be waived?ANSWER: State immunity from suit means that the state may not be sued without its consent. But consent to suit does not include consent to attachment of property for foreign sovereign. The doctrine applies to foreign government. When a foreign state wishes to invoke sovereign immunity, it secures an executive endorsement of its claim of immunity from the Department of Foreign Affairs, and the determination made by the Executive Department is a political question which is conclusive on Philippine courts. It may also file a motion to dismiss on the ground of lack of jurisdiction over its person. The right to state immunity may be waived but it does not mean that it is admitting liability. (Philippine Rock Industries, Inc. vs. Board of Liquidators, 180 SCRA 71) It means that the State in allowing itself to be sued is merely giving the plaintiff the opportunity to prove its case but the State does not waive its lawful defenses.20.What are the two kinds of sovereign immunity?

ANSWER: The two kinds of sovereign immunity are 1) absolute immunity and 2) restrictive immunity. Under absolute immunity, all acts of state, be they governmental or proprietary, are protected by sovereign immunity. Under restrictive immunity, a State liable to suit only in the exercise of its proprietary acts and does not apply to acts performed in its sovereign or governmental function. 21.What do you understand by the principle of Restrictive State Immunity from Suit?

ANSWER: State immunity from suit extends only to governmental acts (jure imperii) and does not cover private, commercial and proprietary act (jure gestiones). The restrictive application of State immunity is proper only when the proceedings arise out of commercial transaction of the foreign sovereign, its commercial activities or economic affairs. Stated differently, a State may be said to have descended to the level of an individual and can thus be deemed to have tacitly given its consent to be sued only when it enters into business contracts. It does not apply where the contracts relate to the exercise of its sovereign function. Thus, where the questioned transaction dealt with the improvements on the wharves in the naval station at Subic Bay, the projects are an integral part of the naval base which is devoted to the defense of both the US and the Philippines, indisputably a function of government of the highest order; they are not utilized for, nor dedicated to commercial or business purposes. (USA vs. Ruiz, 136 SCRA 487 and DA vs. NLRC, 227 SCRA 693)

22.Who are covered by the Doctrine of State Immunity? State its rationale.ANSWER: A state enjoys immunity from the exercise of jurisdiction (legislative, executive, judicial) by another state, unless it has given consent, waived its immunity, or voluntarily submitted to the jurisdiction of the court concerned. Also, the states immunity extends to the Head of State, who is the personification of the state, and to diplomatic representatives, in order to uphold their dignity as representatives of their respective states and to allow them free and unhampered exercise of their functions. Likewise, under Article 105 of the UN Charter, the United Nations, its Organs, Specialized Agencies and other International organizations and its Officers shall enjoy privileges and immunities as are necessary for the independent exercise of their functions. Rationale: to secure them legal and practical independence in fulfilling their duties (Lasco vs. UN revolving Fund for Natural Resources Exploration, 241 SCRA 681) and to shield the affairs of international organizations, in accordance with international practice, from political pressure or control by the host country, and to ensure the unhampered performance of their functions. (International Catholic Migration vs. Calleja, 190 SCRA 130)23. When is a suit against a public official deemed to be a suit against the State?

ANSWER: While the doctrine of state immunity appears to prohibit only suits against the state without its consent, it is also applicable to complaints filed against public officials for acts allegedly done in the performance of their official duties. The rule is that the suit must be regarded as one against the State where the satisfaction of the judgment against the public official concerned will require the State to perform a positive act, such as appropriation of the amount necessary to pay the damages awarded to the plaintiff.

The rule does not apply where the public official is clearly being sued for acts that are unlawful and injurious to the rights of others. Public officials are not exempt, in their personal capacity, from liability arising from the acts committed in bad faithNeither does it apply where the public official is clearly being sued not in his official capacity but in his personal capacity, although the acts complained of may have been committed while he occupied a public position.

As regards petitioner DOH, the defense of immunity from suit will not avail despite its being an unincorporated agency of the government, for the only causes of action directed against it are preliminary injunction and mandamus. Under Section 1, Rule 58 of the Rules of Court, preliminary injunction may be directed against a party or a court, agency or a person. Moreover, the defense of state immunity does not apply in causes of action which do not seek to impose a charge or financial liability against the State. (Lansang vs. CA, 326 SCRA 259 and DOH vs. Pharmawealth, Inc., GR No. 169304, March 13, 2007)

PUBLIC INTERNATIONAL LAW /P 0624. The Republic of Indonesia represented by its Minister Counsellor entered into a Maintenance Agreement with JV, sole proprietor of Vinzon Trade and Services. The agreement stated that JV

maintain specified equipment at the embassy Main Building, including the official residence of the Ambassador. But prior to the expiration of the 4-year contract, the Indonesian Embassy terminated the agreement. JV filed a complaint against the Republic of Indonesia, the Ambassador and the Minister Counsellor, who in turn filed a motion to dismiss invoking sovereign immunity from suit. JV filed an Opposition contending that: (1) the Republic of Indonesia expressly waived its immunity because of a paragraph in the contract stating that any legal action arising out of the agreement shall be settled according to the laws of the Philippines and by a specified court in the Philippines; (2) that the actual physical maintenance of the premises of the diplomatic mission is no longer a sovereign function of the State; and (3) that the Ambassador and the Minister Counsellor can be sued and held liable in their private capacity for tortuous acts done with malice and bad faith. Decide.

ANSWERS: (1) The existence alone of the paragraph in the contract is not necessarily a waiver of sovereign immunity from suit. The aforesaid provision contains language not necessarily inconsistent with sovereign immunity. On the other hand, such provision may also be meant to apply where the sovereign party elects to sue in the local courts, or otherwise waives its immunity by any subsequent acts. The applicability of Philippine laws must be deemed to include Philippine laws in its totality, including the principle recognizing sovereign immunity. Hence, the proper court may have no proper action, by way of settling the case, except to dismiss it. Likewise, the Solicitor General states that it was not a waiver of their immunity from suit but mere stipulation that in the event they do waive their immunity, Philippine laws shall govern the resolution of any legal action arising out of the agreement and the proper court in Makati City shall be the agreed venue thereof.

(2)There is no dispute that the establishment of a diplomatic mission is an act jure imperii. A sovereign state does not merely establish a diplomatic mission and leave it at that; the establishment of a diplomatic mission encompasses its maintenance and upkeep of air conditioning units, generator sets, electrical facilities, water heaters and water pumps of the Indonesian Embassy and the official residence of the Indonesian Ambassador. (3)The acts of the Ambassador and the Minister Counsellor in terminating the agreement is not covered by the exceptions provided in Article 31 of the Vienna Convention which provides:

1.A diplomatic agent shall enjoy immunity from criminal jurisdiction of the receiving state. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:

(a)a real action relating to private immovable property situated in the territory of the receiving state, unless he holds it on behalf of the sending State for the purpose of the mission;

(b)an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;

an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.

xxx xxx xxx The said act may fall under subparagraph (c) thereof, but said provision clearly applies only to a situation where the diplomatic agent engages in any professional or commercial activity outside official functions, which is not the case herein. (The Republic of Indonesia vs. James Vinzon, GR No. 154705, June 26, 2003)25.Are officers of the Asian Development Bank, including experts and consultants performing mission for the Bank, entitled to immunity from legal process? ANSWER: YES. But the immunity granted to officers and staff of the ADB is not absolute. It is limited to acts performed in an official capacity, except when the Bank waives the immunity. The immunity cannot cover the commission of a crime such as slander or oral defamation in the name of official duty. Officials of international organizations enjoy functional immunity, that is, only those necessary for the exercise of their functions of the organization and the fulfilment of its purposes. In other words, the officials and employees of the ADB are subject to the jurisdiction of the local courts for their private acts, notwithstanding the absence of a waiver of immunity. (Liang vs. People, 355 SCRA 125)Act of State Doctrine26.What is the so-called Act of State Doctrine?ANSWER: A doctrine emanating from the right of equality among nations which means that a State cannot, in anyway, question the validity of the official acts of another state insofar as these acts are performed within the sphere of the latter States own jurisdiction and not contrary to accepted rules of public international law. The act of state doctrine is one of the methods by which States prevents their national courts from deciding disputes which relate to the internal affairs of another State, the other two being immunity and non-justiciability. It is an avoidance technique that is directly related to the State's obligation to respect the independence and equality of other States by not requiring them to submit to adjudication in a national court or to settlement of their disputes without their consent. It requires the forum court to exercise restraint in the adjudication of disputes relating to legislative or other governmental acts which a foreign State has performed within its territorial limits. The parameters of the use of the act of state doctrine were clarified in Banco Nacional de Cuba vs. Sabbatino (378 U.S. 398; 84 S.Ct. 293) There, the U.S. Supreme Court held that international law does not require the application o f this doctrine nor does it forbids the application of the rule even if it claimed that the act of PUBLIC INTERNATIONAL LAW /P 07state in question violated international law. Moreover, due to the doctrines peculiar nation-to-nation character, in practice the usual method for an individual to seek relief is to exhaust local remedies and then refer to the executive authorities of his own state to persuade them to champion his claim in diplomacy or before an international tribunal. (PCGG vs. Sandiganbayan, 530 SCRA 13)

27.What is the Principle of Auto-limitation?

ANSWER: Under the principle of auto-limitation, any State may by its consent, express or implied, submit to a restriction of its sovereign rights. There may thus be a curtailment of what otherwise is a plenary power. (Reagan v. CIR, GR No. L-2637, December 27, 1969)Right of Legation

28. What is agreationANSWER: It is a practice of the States before appointing a particular individual to be the chief of their diplomatic mission in order to avoid possible embarrassment. It consists of two acts: The inquiry, usually informal, addressed by the sending State regarding the acceptability of an individual to be its chief of mission; and the agreement also informal, by which the receiving State indicates to the sending State that such person, would be acceptable.29.What is letter of credence?

ANSWER: This is the document by which the envoy is accredited by the sending State to the foreign State to which he is being sent. It designates his rank and the general object of his mission, and asks that he be received favourably and that full credence be given to what he says on behalf of his State.

30.What is a letter patent?

ANSWER: The appointment of a consul is usually evidenced by a commission, known as letter patent, issued by the appointing authority of the sending State and transmitted to the receiving State through diplomatic channels.31.What are the privileges and immunities of diplomatic representatives?

ANSWER: 1)Personal inviolability members of the diplomatic mission shall not be liable for any form of arrest or imprisonment

2) Inviolability of premises - premises, furnishings and means of transport shall be immune from search, seizure, attachment or execution.3)Diplomatic agents are immune from criminal civil or administrative liability

4)Archives or documents shall be inviolable

5)A diplomatic agent is exempted to give evidence as a witness

6)Receiving state shall protect official communication and official correspondence of diplomatic mission

7)Exemption from general duties and taxes including custom duties with certain exceptions.

8.Receiving State shall ensure all members of diplomatic mission freedom of movement and travel.9.Use of flag and emblem of sending State on premises of receiving State

NOTE: For Exceptions to the privileges and immunities, see Question 24 (3) above.32.Are consuls entitled to immunities and privileges?

ANSWER: YES, but not to the same extent as those enjoyed by diplomatic officials. Like diplomats, consuls are entitled to: 1) inviolability of their correspondence, archives and other documents; 2) freedom of movement and travel; 3)immunity from jurisdiction for acts performed in their official capacity; and 4) exemption from certain taxes and custom duties. However, consuls are liable to: 1) arrest and punishment for grave offenses; and 2) may be required to give testimony, subject to certain exceptions. The consular offices are immune only: 1) with respect to the part where the consular work is being performed; and may be expropriated by the receiving state for purposes of national defense or public utility.Extradition & Deportation

33.What is the difference if any between extradition and deportation?

ANSWER: The following are the differences between extradition and deportation:1) According to purpose, extradition is effected for the benefit of the state to which the person being extradited will be surrendered because he is a fugitive criminal in that state, while deportation is effected for the protection of the state expelling an alien because his presence is not conducive to the public good. 2) According to basis, extradition is effected on the basis of an extradition treaty or upon the request of another state, while deportation is the unilateral act of the state expelling an alien. 3) According to its effect upon the alien, in extradition, the alien will be surrendered to the state asking for his extradition, while in deportation, the undesirable alien may be sent to any state willing to accept him.

34.What is the principle of double criminality? What id the purpose of the principle?

ANSWER: Under the principle of double criminality, extradition is available only when the act is an offense in the two countries involved in extradition. The principle of double criminality is satisfied even if the act was not punishable in the requested state at the time of its occurrence if it was criminal at the time the request was made.

The purpose of the principle of double criminality is to ensure each state that it can rely on reciprocal treatment and that no state will use its processes to surrender a person for contract which it does not characterize as criminal.

PUBLIC INTERNATIONAL LAW /P 0835.State A and State B entered into an extradition treaty, which provided that extradition may be granted irrespective of the date when the offense was committed. State A asked that the accused be extradited for swindling and perjury committed before the treaty took effect. Accused argued that his extradition for offenses committed before the effectivity of the extradition treaty violates the prohibition against ex post facto laws. Is the contention of the accused legally tenable?

ANSWER: NO. The prohibition against ex post facto law applies to penal laws only. The extradition treaty is not a criminal statute. (Wright vs. CA, 235 SCRA 341) 36.Discuss the procedure for extradition. ANSWER: Upon receipt of the petition for extradition and its supporting documents, the judge must study them and make, as soon as possible, a prima facie finding whether (a) they are sufficient in form and in substance, (b) they comply with the Extradition Treaty and Law, and (c) the person sought is extraditable. At his discretion, the judge may require the submission of further documentation, or may personally examine the affiants and witnesses of the petitioner. If, in spite of this study and examination, the petition may be dismissed at the discretion of the judge.

On the other hand, if the presence of prima facie case is determined, then the magistrate must immediately issue a warrant for the arrest of the extradite, who is at the same time summoned to answer the petition and to appear at scheduled summary hearings. Prior to the issuance of the warrant, the judge must not inform or notify the potential extradite of the pendency of the petition, lest the latter be given the opportunity to escape and frustrate the proceedings.

After a potential extradite has been arrested or placed under the custody of the law, bail may be applied for and granted as an exception, only upon a clear and convincing showing (1) that, once granted bail, the applicant will not be a flight risk or a danger to the community and (2) that there exist special, humanitarian or compelling circumstances including, as a matter of reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in extradition cases therein. (Government of the United States of America vs. Hon. Purganan, GR No. 148571, September 44, 2002)

37.Is the right to due process guaranteed in extradition proceedings?

ANSWER: YES. Potential extraditees are entitled to the rights of due process and to fundamental fairness. Due process does not always call for a prior opportunity to be heard. A subsequent opportunity is sufficient due to the flight risk involved. Indeed, available during the hearings on the petition and the answer is the full chance to be heard and to enjoy fundamental fairness that is compatible with the summary nature of extradition. (Government of the United States of America vs. Hon. Purganan, GR No. 148571, September 44, 2002)Right to Bail and Due Process in Extradition Proceedings

38.Is the constitutional provision on the right to bail under Section 14 of the Constitution as well as Section 114 of the Rules of Court applicable to extradition cases? Is the right to due process available to potential extraditees?

ANSWER: In Government of the United States of America vs. Hon. Purganan, GR No. 148571, September 44, 2002, it was held that the said provisions apply only when a person has been arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings because extradition courts do not render judgments of conviction or acquittal. Extradition proceedings are separate and distinct from the trial for the offenses for which the respondent is charged. He should apply for bail before the courts trying the criminal cases against him, not before the extradition court. NEW RULING: However, in Government of Hongkong Special Administrative Region vs. Judge Olalia, GR 153675, April 19, 2007, the Supreme Court ruled that a potential extraditee may be granted bail on the basis of clear and convincing evidence that the person is not a flight risk and will abide with all the orders and processes of the extradition court. While our extradition law does not provide for the grant of bail to an extradite, there is no provision prohibiting him or her filing a motion for bail, a right guaranteed not only by the Constitution, but also by international convention, to which the Philippines is a party. The Philippines, being a signatory to the 1996 UN General Assembly which adopted the International Convention on Civil and Political Rights, is under obligation to make available to every person under detention such remedies which safeguard their fundamental rights to liberty. If bail can be granted in deportation cases, there is no justification why it should not also be allowed in extradition cases. Likewise, considering that the Universal Declaration of Human Rights applies to deportation cases, there is no reason why it cannot be invoked in extradition cases. After all, both are administrative proceedings where the innocence or guilt of the person detained is not an issue.

39.If there is no extradition treaty between the state of refuge and the state seeking the fugitives return, how may the latter acquire jurisdiction over him? Explain.ANSWER: The state may still secure his surrender, but not as a matter of right. In the interest of international comity or courtesy, the state of refuge may accede to the formers request and surrender the fugitive to it.

40.What is the principle of asylum? Does this principle apply in the Philippines?

ANSWERS: This is the power of the state to allow an alien who has sought refuge from prosecution or persecution to remain within the territory and under its protection. This has never been recognized as a principle in international law. Asylum may either be: 1) Territorial, where it exists only if stipulated in a treaty, or justified by established usage and depends on the liberal attitude of the receiving state on grounds of territorial supremacy, or 2) Diplomatic, if granted only by virtue of treaty stipulation, or where established usage allows it, or when the life or liberty of the person is threatened by imminent violence.

PUBLIC INTERNATIONAL LAW /P 09 Generally, diplomatic asylum in the Philippines cannot be granted except to members of the official or personal household of diplomatic representatives. On humanitarian grounds, however, refuge may be granted to fugitives whose lives are in imminent danger from mob violence but only during the period when active danger persists.

Treaties

41.May a treaty or conventional rule qualify as a norm of jus cogens character?

ANSWER: NO. A treaty or conventional rule may not qualify as a jus cogens because such norm is binding on all states, whereas a treaty rule binds only the states that are parties to it and even in the event that all states are parties to a treaty, they are entitled to terminate or withdraw from the treaty. A jus cogens norm is characterized as a norm of general international law which by its nature is binding on every state.

42.May a treaty violate international law?ANSWER:Yes, a treaty may violate international law if it conflicts with peremptory norm or jus cogens of international law. Jus cogens norm is defined as a norm of general international law accepted and recognized by the international community as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. Article 53 of the Vienna Convention on the Law of Treaties provides that a treaty is void if at the time of its conclusion, it conflicts with jus cogens norm. Article 54 of the same Convention, if a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes voids and terminates.43.Can a treaty or international agreement be invalidated by Philippine courts or amended by subsequent law?

ANSWER: YES. The Constitution of the Philippines has clearly settled that an international agreement may be invalidated by Philippine Courts. Sec.2 of Article VIII thereof provides that the Supreme Court may not be deprived of its jurisdiction to review, revise, reverse, modify or affirm on appeal, certiorari or writ of error as the law or the rules of court may provide, final judgments and decrees of inferior courts in all cases in which the constitutionality or validity of any treaty, law or ordinance or executive order or regulation is in question. In other words, the Court authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but, also, when it runs counter to an act of Congress. Also, the provisions of a treaty are always subject to qualification or amendment by a subsequent law, or that it is subject to the police power of the State. (Lim vs. Macapagal-Arroyo, GR No. 151445, April 11, 2002)44.May a state party to a treaty by unilateral act declare it terminated, or withdraw from it?

ANSWER: NO. Even on grounds provided for by the Vienna Convention on the Law of Treaties, either of these cannot be done unilaterally. This Convention requires a procedure, beginning with notification to the other parties to the treaty as to the measure it proposes to take. If no party has raised any objection, the proponent state may carry out the measure it has proposed by a formal instrument signed by the Head of State or of Government and the same is communicated to the other parties.45.Assuming that the other country-party to a treaty is agreeable to the termination of such treaty, can the President alone without the concurrence of the Senate abrogate the same? Can such termination be subject to judicial review?ANSWER: YES. The authority of the Senate over treaties is limited to concurrence. The Constitution is silent as to the participation of the Senate in the abrogation of a treaty. There being no express constitutional provision regulating the termination of treaties, it is presumed that the power of the President over treaty agreements and over foreign relations includes the authority to terminate treaties. The termination of a treaty by the President without the concurrence of the Senate is not subject to constitutional attack, there being no Senate authority to that effect. Moreover, the jurisdiction of the courts over a treaty is only with respect to questions of its constitutionality or validity. The question should involve the constitutionality of a treaty or its validity in relation to a statute. It does not pertain to the termination of a treaty.

46.(a)Distinguish signing of a treaty from its ratification.

(b)Does mandamus lie to compel the Office of the Executive Secretary and Department of Foreign Affairs to transmit the signed text of a treaty (Rome Statute) to the Senate of the Philippines for ratification?

ANSWERS:

(a) The signing of a treaty and ratification are two separate and distinct steps in the treating-making process- the signature is primarily intended as a means of authenticating the instrument and the symbol of the good faith of the parties, usually performed by the states authorized representatives, while ratification is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives, and sis generally held to be an executive act undertaken by the head of state or of the government. Under the Constitution, the power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding concurrence its consent, or concurrence, to its ratification.

(b) NO. The Philippines is not bound under treaty law and international law to ratify a treaty which it has signed it is the ratification that binds the state to the provisions thereof. There is no legal obligation to ratify a treaty, but the refusal must be based on substantial grounds and not on superficial or whimsical reasons. The President has the discretion even after the signing of the treaty by the Philippine representative whether or not to ratify the same. It is within the authority of the President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification, refuse to ratify it. (Pimentel vs. Office of Executive Secretary, 462 SCRA 622)PUBLIC INTERNATIONAL LAW /P 1047.May a non-signatory State become a party to a treaty?

ANSWER: YES. A non-signatory State may become a party to a treaty through the process of adhesion. Thus, upon invitation or permission of the contracting parties, a third party who did not participate or who did not ratify on time, may be bound by a treaty. Other States my also be bound by the terms of a treaty if linked by the most favored nation clause, under which a contracting State entitled to the clause may claim the benefits extended by the latter to another State in a separate agreement. Also, if the treaty is merely a formal expression of customary international law, or where the treaty expressly extends benefits to non-signatory States, States not originally parties to the agreement may become bound.48. Explain the concepts of Pacta Sunt Servanda, Rebus Sic Stantibus & most favored nation clause.

ANSWER:

1) Pacta Sunt Servanda - treaties must be performed in good faith.2) Ribus Sic Stantibus (things remaining as they are) a party to a treaty is discharged in the event a change of circumstances occurs which renders the fulfilment of the treaty grossly unjust, oppressive and iniquitous.

3) Most favored nation clause a clause in the treaty that grants to the other party equal treatment (not less favourable) that has been granted or may be granted to the most favored other country.

Law of the Sea

49.What are the four conventions adopted by the UN Conference on the Law of the Sea?

ANSWER: The four conventions adopted by the UN Conference on the Law of the Sea are:

1. Convention on the High seas (1962)

2. Convention on the Continental Shelf (1964)

3. Convention on the Territorial Sea and Contiguous Zone (1964)

4. Convention on Fishing and Conservation of Living resources of the High Seas (1966)

Only the Convention on the High Seas is generally declaratory of established principles of international law; but the other three provide evidence of the generally accepted rules bearing on the subject matter, the cogency of this depending in part on the number of ratification.

50. a) What do you understand by the Archipelago Doctrine?

b)How does the Doctrine, as embodied in Article I of the Philippine Constitution, differ from the version of the 1982 UN Convention on the Law of the Sea?

ANSWERS:

a)The archipelagic doctrine emphasizes the unity of the land and waters by defining an archipelago either as a group of islands and islets or body of waters studded with islands. For this purpose, it requires that baselines be drawn by connecting the appropriate points of the outermost islands to encircle the islands within the archipelago. The waters on the landward side of the baselines regardless of breadth or dimension are considered merely internal waters.

b)Article I of the Philippine Constitution treats the vast areas of water between islands as internal waters and therefore not subject to the right of innocent passage. The 1982 UNCLOS version calls such areas archipelagic waters and are subject to the right of innocent passage through passages designated by the archipelago concerned. But, where the establishment of a straight baseline in accordance with Article 4 of the UNCLOS has the effect of enclosing as internal waters areas which previously had been considered as part of the territorial sea or of the high seas (referred to as archipelagic waters), the right of innocent passage shall exist in those waters, through passages designated by the archipelago concerned.

51.What is the right of innocent passage?

ANSWER: It is the navigation through the territorial sea for the purpose either of traversing the sea without entering the internal waters, or of proceeding to internal waters, or of making for the high seas from internal water. It includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or by distress. Passage is innocent as long as it is not prejudicial to the peace, good order or security of the coastal state. Submarines are required to navigate on the surface and to show their flag. Foreign fishing vessels must observe duly published rules and regulations of the coastal state and rules of international law relating to transport and navigation. The coastal state can prevent these vessels from fishing in the territorial sea.

52.What is transit passage?

ANSWER: It is the right to exercise freedom of navigation and overflight solely for the purpose of continuous and expeditious transit through the straits used for international navigation, i.e., between two areas of the high seas or between two exclusive economic zones. All ships and aircraft enjoy the right to transit passage.

53.What is a baseline? The straight baseline method?

ANSWERS: It is a line from which the breadth of the territorial sea, the contiguous zone and the exclusive economic zone is measured in order to determine the maritime boundary of the coastal state.

The straight baseline method is used by the Philippines in drawing its baseline from which the breadth of the territorial sea is measured. This is done by joining the appropriate points through straight lines. This method is applied in cases where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity.

PUBLIC INTERNATIONAL LAW /P 1154.What is a continental shelf? ANSWER; It comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin or to a distance of 200 nautical miles beyond the baseline from which the breadth of the territorial sea is measured if the edge of the continental margin does not extend up that that distance. However, if the coastal state succeeds in its application for an extended continental shelf, it may extend to not more than 350 nautical miles. A coastal state has the inherent right to explore its continental shelf that constitute a natural prolongation of its land territory and under the sea by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for thee purpose of exploring the seabed and exploring its natural resources. Furthermore, a coastal state shall have the exclusive right to authorize and regulate drillings on the continental shelf.55.Distinguish the territorial sea from the internal waters of the Philippines.

ANSWER: Territorial sea is an adjacent belt of sea with a breadth of twelve nautical miles measured from the baselines of a state and over which a state has sovereignty (Articles 2 and 3 of the Convention on the Law of the Sea) Ships of all states enjoy the right of innocent passage through the territorial sea. (Article 14 of the Convention on the Law of the Sea) Internal waters, on the other hand, are the waters on the landward side of baselines from which the breadth of the territorial sea is calculated. The internal waters of the Philippines consist of the waters around, between and connecting the islands of the Philippine Archipelago, regardless of their breadth and dimensions, including the waters in bays, rivers and lakes. (Section 1, Article I, Philippine Constitution)) No right of innocent passage for foreign vessels exists in the case of internal waters.56.What is the contiguous zone?

ANSWER: Contiguous zone is a zone contiguous to the territorial sea and extends up to twelve (12) nautical miles from the territorial sea and over which the coastal state may exercise control necessary to prevent infringement of its customs, fiscal immigration or sanitary laws and regulations within its territory or territorial sea. (Article 33 of the Convention on the Law of the Sea)

57.What is the Exclusive Economic Zone? ANSWER: The exclusive economic zone is a marine area, which lies between the territorial sea and the High Seas, that includes the subjacent sea-bed, the subsoil beyond and adjacent to the territorial sea, extending up to 200 nautical miles from the baseline of the territorial sea of a state. It gives the coastal state sovereign rights overall economic resources of the sea, seabed and subsoil . Sovereign rights (not of sovereignty) are the rights which fall short of absolute sovereignty because in the EEZ, all States, whether coastal or land-locked, generally enjoy freedom of navigation and overflight and of the laying of submarine cables and pipelines and other internationally lawful uses of the sea related to this freedoms.58.What are the rights of the coastal state in the Exclusive economic Zone?

ANSWER:

A) Sovereign rights: 1) for the purpose of exploring and exploiting, conserving and managing the living and non-ling resources in the super adjacent waters of the seabed and the resources of the seabed and subsoil 2) with respect to the other activities for the economic exploitation an exploration of the EEZ, such as production of energy from water currents and winds

B) Jurisdictional rights: 1) with respect to establishment and use of artificial islands 2) as to protection and preservation of the marine environment and 3) over marine scientific research. C) Other rights and duties provided for in the Law of the Sea Convention.

59.What is the High Seas? What freedoms in the High Seas are accorded to all States? Can a warship board a foreign ship on the High Seas?ANSWER: It is the sea beyond the jurisdiction of any coastal State. It starts from the outer edge of the territorial sea or the outer edge of the EEZ, if the coastal State is entitled to an EEZ under the Convention. If the sea is not included in the EEZ, nor in the territorial sea, or in the internal waters of a State, or the archipelagic waters of an archipelagic State- then its belongs to the High Seas.

The High Seas is open to all States whether coastal or land-locked and all States are accorded the following freedoms in the High Seas: freedom from navigation; freedom of overflight; freedom to lay submarine cables and pipelines; freedom to construct artificial islands and other installations; freedom from fishing and freedom of scientific research.

No State may subject any part of the High Seas to its sovereignty. A warship which encounters on the High Seas a foreign ship, is not justified in boarding unless there is reasonable ground for suspecting that the ship is engaged in piracy, in the slave trade, in unauthorized broadcasting and the flag State of the warship has jurisdiction, the ship is without nationality or flying a foreign flag or refusing to show its flag. Warships on the High Seas and ships used by a government in non-commercial service are accorded immunity from the jurisdiction of any State other than the flag State.60.What is The Area?

ANSWER: It encompasses the deep seabed and subsoil beyond the national jurisdiction of any State and is administered by the International Seabed Authority, an autonomous organization of the United Nations headquartered in Kingston, Jamaica. It is tasked with administering the resources of The Area. It is the common heritage of mankind and its resources are mankinds common heritage.PUBLIC INTERNATIONAL LAW /P 1261.How are disputes resolved under the UNCLOS?

ANSWER: Parties who are signatories to the UNCLOS are obligated to resolve their disputes involving the interpretation or application of the terms of the Convention by peaceful means and to seek solutions in accordance with Section 33, paragraph ! of the UN Charter, or the parties may adopt the dispute resolution mechanism it has agreed to apply by virtue of a general, regional or bilateral agreement. If bilateral settlement fails, the dispute must be submitted for compulsory procedure to any of the following tribunals, the decision of which shall be binding on the parties. These are: The International Tribunal for the Law of the Seas, the International Court of Justice, an arbitration tribunal or a special arbitration tribunal.62.What is the new archipelagic baseline law of the Philippines?

ANSWER: The new archipelagic baseline law of the Philippines is embodied in RA 9522 which effectively amended Section 1 of RA 3046, entitled An Act to Define the Baselines of the Territorial Sea of the Philippines, as amended by Section 1 of RA 5446. RA 9522 adopts the regime of islands formula in dealing with our claim over Spratlys. 63.What is the Regime of Islands Doctrine enunciated in RA 9522, or the new archipelagic baseline law of the Philippines? What are the arguments for and against the doctrine.

ANSWER: The Regime of Islands Doctrine as embodied in the new archipelagic baseline law of the Philippines modifies the Archipelagic Principle by excluding two disputed territories, namely, the Kalayaan Islands Group and the Scarborough Shoal from the countrys archipelagic baseline but they remain as parts of Philippine territory and considered as regime of islands consistent with Article 121 of the United Nations Convention on the Law of the Seas (UNCLOS). It adopts a mix formula that combines archipelagic baselines for the main archipelago, and regime of islands for the disputed islands with the option to fix normal baselines in the islands we claim in the disputed Spratly islands group. Under the regime of islands principle, baselines will be drawn on an island-to-island basis rather than a package deal-type archipelago.

64.Is RA 9522 unconstitutional for converting internal waters into archipelagic waters and exposing the Philippine internal waters to nuclear and maritime pollution hazard?

ANSWER: NO. The conversion of internal waters into archipelagic waters will not risk the Philippines because an archipelagic state has sovereign power that extends to the waters enclosed by the archipelagic baseline, regardless of their depth or distance from the coast. The Philippines is subject to UNCLOS III which grants innocent passage rights over the territorial sea or archipelagic waters, thus, the right of innocent passage, being a customary international law is automatically incorporated in the corpus of Philippine law.

The compliance to UNCLOS III through RA 9522 will not expose Philippine waters to nuclear and maritime pollution hazard. If the Philippines did not comply with the baseline law, it will find itself devoid of internationally acceptable baselines from where the breadth of its maritime zones and continental shelf is measured and which will produce two-fronted disasters: (1) open invitation to the seafaring powers to freely enter and exploit the resources in the waters and submarine areas around the archipelago and (2) it shall weaken the countrys case in any international dispute over Philippine maritime space. (Magallona v. Ermita, GR No. 187167, July 16, 2011)

International Human Rights65. What are human rights in international relations? How may human rights be classified?ANSWERS: International human rights are liberties or freedoms, immunities and benefits accepted as guaranteed rights and giving rise to obligations under international law. Under the United Nations Charter, the international community of States has recognized the general obligation on universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. Human rights may either be individual rights or collective or national rights. They may also be classified into first generation of human rights, ie, civil and political rights, second generation, ie, economic, social and cultural rights, or third generation, ie, right to peace, healthy environment and the right to development.

66.What is the International Bill of Human Right? Does international protection of human rights entail criminal liability?

ANSWERS: International Bill of Human Rights is the designation used to refer to three instruments of the international protection of human rights, taken together, namely: (1) the Universal Declaration of Human Rights based on the human rights provisions of the UN Charter, (2) the International Covenant of Civil and Political Rights, and (3) the International Covenant on Economic, Social and Cultural Rights.

YES. Certain categories of acts of violation of human rights, such as genocide, war crimes and crimes against humanity within the jurisdiction of the International Criminal Court (ICC) are characterized as grave offenses under international law and are defined as crimes. They entail criminal liability on the part of the individual perpetrator.

67.Under international law, may a State derogate from the obligations in treaties for the protection of human rights? Does such derogation apply to all human rights?ANSWERS: YES. Article 4(1) or the Derogation Clause of the International Covenant on Civil and Political Rights, provides that in time of public emergency which threatens the life of the nation, and the existence of which is officially proclaimed, the State Parties to the present covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided such measures are not inconsistent with their obligations under international law and do not involve discrimination solely on the ground of race, color, sex, language, religion or social origin.

PUBLIC INTERNATIONAL LAW /P 13NO. The Derogation Clause does not apply to the following human rights (1) right to life; (2) right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment; (3) right not to be held in slavery or in servitude; (4) right to be imprisoned merely on ground of inability to fulfil a contractual obligation; (5) the right not to be held guilty under ex post facto law; (6) right to be recognized everywhere as a person before the law; and (7) right to freedom of thought, conscience and religion. These are non-derogable rights.

Settlement of International Disputes68. In international relations, does the use of war or force by a state against another violate international law? We may force be used without violating the UN Charter? ANSWER: YES. Article 2 (4) in the United Nations Charter prohibits the use of force in the relations of states by providing that all members of the UN shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.

YES. The following are instances when force may be used without violating the UN Charter: (1) Right to individual or collective defense (UN Charter, Art. 51) (2) Enforcement measure involving the use of armed force by the Security Council (Ibid., Art.42) (3) Enforcement measure by regional arrangement as authorized by the Security Council (Ibid.)69. What is the role of the International Court of Justice (ICJ) in international relations? What are the two limitations on the jurisdiction of the International Court of Justice?

ANSWERS: The International Court of Justice may decide on interpretation of treaties, any question on international law, the existence of facts constituting breach of international obligations, and the nature or extent of the reparation to be made for the breach of international obligation.

The two limitations on the jurisdiction of the International Court of Justice are: (1) Only states may be parties in cases before it (Art. 34) and (2) The consent of the parties is needed for the court to acquire jurisdiction with the optional jurisdiction clause. (Art. 36)

70. The UN Security Council has the primary responsibility to maintain international peace and security. In case of an outbreak of armed conflict between or among nations what steps may be undertaken by the UNSC to settle the dispute?

ANSWER: In case of armed conflict between or among nations, the UN Security Council may undertake preventive action and enforcement action. Preventive action consists of provisional measures to prevent a conflict from worsening and may involve the deployment of peacekeeping or observer missions. The military observers shall be unarmed, while peacekeeping forces may be armed with light weapons but they are no authorized to use force except in self-defense and the operations must not interfere with the internal affairs of the host country. Enforcement action involves the deployment of air, sea and land forces, or in the institution of a blockade. The only limitation in the exercise of the UNSC power to undertake preventive and enforcement actions is that the dispute must be international and not domestic in character.

71.What is international criminal law?

ANSWER: It is the branch of public international law which proscribes specified acts as international crimes, provides for their prosecution and punishment, and governs relations of States with respect to individual criminal liability and its enforcement.

72.What is an international crime?

ANSWER: It refers to an act or acts universally recognized as criminal, which is considered a grave matter of international concern and for some valid reason cannot be left within the exclusive jurisdiction of the State that would have control over it under ordinary circumstances.

73.State the universal jurisdiction of the International Criminal Court (ICC).

ANSWER: The jurisdiction of the International Criminal Court, in accordance with the ICC Rome Statute shall be limited to serious crimes of concern to the international community as a whole: (1) the crime of genocide or acts committed with intent to destroy, in whole or in part, a national, ethical, racial or religious, groups, such as killing members of the group, imposing measures intended to prevent births within the group & forcibly transferring children of the group to another group. (2) crimes against humanity or acts when committed as part of a widespread or systematic attack directed against any civilian population, such as murder, extermination, enslavement, apartheid torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization. (3) war crimes, such as torture or inhuman treatment and (4) the crime of aggression.

74.What is the principle of complementarity?

ANSWER: This principle would not replace national courts in criminal jurisdiction. If the national court is able and willing to take cognizance of crimes that are also cognizable by the International criminal Court, the latter would not take cognizance of the case. Only when the national court creates an unjustified delay or when its proceedings are meant to shield an individual from criminal liability may the ICC take cognizance of the case.PUBLIC INTERNATIONAL LAW /P 1475.Distinguish the jurisdiction of the International Court of Justice and the International Criminal Court.

ANSWER: The jurisdiction of the International Court of Justice pertains to the international responsibility in the concept of civil liability, while that of the International Criminal Court pertains to criminal liability. While States are the subject of law in international responsibility under the Jurisdiction of the International Court of Justice, the criminal liability within jurisdiction of the International Criminal Court pertains to individual natural person. The International Court of justice is the principal judicial organ of the United nations while the International criminal Court is independent of the United Nations.76.What is the principle of ne bis in idem under Article 20 of the Rome Statute?

ANSWER: The principle indicates that primary jurisdiction over the so-called international crimes rests, at the first instance, with the state where crime is committed and secondarily with the International Criminal Court in appropriate situations.

77.Is the Non-Surrender Bilateral Agreement between US and the Philippines prohibiting the surrender of persons committing international crimes to any international tribunal valid?

ANSWER: YES. National jurisdiction being primary is always the responsibility and within the prerogative of the Philippines either to prosecute criminal offenses equally covered by the Rome Statute or to accede to the jurisdiction of the International Criminal Court. The Philippines may decide to try persons of the US under our national criminal justice system. Or it may opt not to exercise criminal jurisdiction over its erring citizens or over US persons committing high crimes in the country and defer to the secondary criminal jurisdiction of the International Criminal Court over the. (Bayan Muna v. Romulo, GR No. 159618,February 1, 2011)

78.What is International Humanitarian Law?

ANSWER: It is a branch of public international law which governs armed conflicts to the end that the use of violence is limited and that human suffering is mitigated or reduced by regulating or limiting the means of military operation and by protecting persons who do not or no longer participate in hostilities. It is also known as the law of armed conflict or the law of war.

79.What are the two branches of IHL?

ANSWER: 1)Law of Geneva designed to safeguard military personnel who are no longer taking part in the fighting.

2)Law of the Hague establishes the rights and obligations of belligerents in the conduct of military operation, and limits the means of harming the enemy.

80.What does armed conflict not cover?

ANSWER: It does not include international disturbances or tensions such as riots; isolated and sporadic acts of violence or other acts of similar nature81.What is the Martens Clause?

ANSWER: In cases not covered by international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.

82.What is international environmental law?

ANSWER: It is a branch of public international law comprising those substantive, procedural and institutional rules which have as their primary objective the protection of the environment, the term environment being understood as encompassing both the features and the products of the natural world and those of human civilization.

83.What is Principle 21 of the Stockholm Declaration?

ANSWER: This declares that States have the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or areas beyond the limits of national jurisdiction.

84.What is the Madrid Protocol?

ANSWER: The Madrid Protocol is an international procedure which gives protection to trademark holders in several jurisdictions with only a single procedure. These regulations shall apply to international applications where the International Property Office of the Philippines is the office of origin, and where the Philippines is a designated contracting party in an international registration. If the Philippines has been designated as a contracting party in an international registration, its effect shall be as if the application for registration of the mark had been directly filed with the IPOPHIL. Further, the mark shall be considered registered directly with the IPOPHIL on the date of the international registration in cases where there is no refusal of the mark by the IPOPHIL; or in case the mark was initially refused, but such refusal was subsequently withdrawn; or if a statement of the grant of protection was sent by the IPOPHIL.--o0o--