PUBLIC INTERNATIONAL LAW CASE OUTLINE

 

PIL

  1. Definition of Public International Law

-set of rules and principles that governs the relationships between states and other international actors, whether natural or juridical.

 

  1. Distinctions
  2. With Private IL
  3. With Municipal Law
  4. Theories on relation between PIL and ML
  5. Monism
  6. Dualism
  7. Mixed
  8. Sources of IL

-(Art 38 of ICJ statute) –widely accepted

  1. Primary Sources
  2. Treaty and international Conventions
  3. Customary International Law
  4. Requisites:
  5. state Practice
  6. Opinio Juris
  7. Jus Cogens

iii. General Principles of Law recognized by civilized states

  1. Secondary Sources
  2. Judicial Decisions and Teachings of highly-qualified and well-known publicists
  3. Ex Aequo et bono (Philippine Equity)

>In justice and fairness, according to what is just and good.

It is more of ethical rather than jural.

> Equity is available only in absence of law and not its replacement.

> In ICJ, the parties may apply equitable considerations, if the parties agreed that the dispute be resolved according to equity.

CASES:

  1. Nicaragua vs US (1986)
  2. North Sea Continental Shel Cases (1969) ICJ

 

  1. Subjects of IL
  2. Traditional subjects states
  3. Additional (modern) subjects
  4. Scope of IL

– it covers all the interests of contemporary international and even domestic life.

 

  1. Foundations of IL
  2. Reciprocity/mutuality
  3. comity
  4. Independence/sovereign (legal) equality of States
  5. Obligatory Force of IL

– International law is not binding as a municipal law is binding on its citizens.

EXCEPT: when rules of international law have been embodied in treaties or conventions unqualified adhered to by sovereign states, in which case they are of the same level as domestic laws.

 

  1. Add: the United Nations in IL
  2. Salient Points of the UN Charter
  3. Principal Organs
  4. Membership

CASES:

  1. Sison vs Board of Accounatncy
  2. Bank of America v Amrican Realty (1999)
  3. Hilton v Guyot (1895)

CHAPTER II (STATEHOOD)

  1. State Defined
  • A people permanently occupying a fixed territory bound together by common-law habits and custom into one body politic exercising, through the medium pf an organized government, independent sovereignty and control over persons and things within its boundaries, capable of making war and peace and of entering into international relations with other communities of the globe. (United states vs Kusche)
  • The organization of social life which exercises sovereign power in behalf of the people.
  • In its largest sense, A body of politic or a society of men

 

  1. An entity is considered a state when it meets its requirements, namely,
  2. Defined territory
  3. Permanent population
  4. Control of its own government
  5. That it engages in or has the capacity to engage in formal relations with other states.

NOTE: Recognition does not create a state.

 

  1. ELEMENTS OF STATEHOOD
  2. People
  3. Territory
  • A sovereign state may acquire territories by:
  1. Discovery and Occupation
  2. Conquest and Occupation
  3. Cession and annexation
  4. Combination of the above modes

 

  1. Mode of Acquiring Territory

 

  • (Clipperton Island Arbitration Case)
  1. Principle of uti possidetis
  • (Burkina Faso case)

 

  1. Government
  2. Sovereignty

 

  1. Recognition of statehood
  2. Definition:
  • Art 1 of the Institute of International Law, 1936:
    • The recognition of a new State is the free act by which one or more States acknowledge the existence on a definite territory of a human society politically organized, independent of any other existing State, and capable of observing the obligations of international law, and by which they manifest therefore their intention to consider it as a member of the international community.

 

  • NOTE: recognition is a political question, decided by the executive branch of government, particularly the President, whose decision to recognize BINDS the JUDGES as well as other OFFICERS and CITIZENS of the government.
  1. Effect

 

  1. Source
  2. Forms
  3. Types
  4. Consequences:

 

  • Has a declaratory effect. A recognized state enjoys a rights and privileges of a sovereign state under international law, in its relations with recognizing state. Conversely, a non-recognized state may not claim any of such rights and benefits, and other state has no obligation to extend such rights or benefits.

 

GR: A foreign state may not sit in judgement on the acts of another sovereign state performed within its territory.

EXCEPT:

  1. Acts done outside its territorial jurisdiction
  2. Involving Proprietary transactions

 

GR: A recognized state cannot be sued in courts in the recognizing state, in view of its right to immunity to suit.

EXCEPT:

  1. When it files suits in the courts of recognizing state, which may amount to waiver of its rights to immunity from suit, as it opens itself to counterclaims.

 

  1. Recognition of a state vs Recognition of a government
  2. Privilege to sue in courts of non-recognizing state

 

CASES:

  • (Banco v Sabbatino)
    • Q: WON a non-recognized state may be allowed to file suit in the courts of the non-recognizing state. US and Cuban had severance of diplomatic relations although Cuban was recognized by US.
    • HELD: the US Supreme Court ruled that the absence of recognition of the government, being a political question, did not preclude the filing of a suit by a foreign state.

 

There is a distinction between recognition of a state and recognition of a government of that state.

 

The recognition of a state is an acknowledgement that the state has complied with all the requirements of a state, and it continues to be a state even though its form of government has been changed.  Thus, even if the government of the state has not been recognized by another, that government cannot sue in the recognizing state, but the state or its instrumentality may be allowed to sue.

 

The privilege to sue is denied only to:

  1. Governments at war with the other state
  2. To those which are not recognized by the latter.

 

Guaranty v US

 

  1. Right to SELF-DETERMINATION
  2. Distinguished from right to political separation
  3. Aspects
  4. Negative
  5. Positive

CASES:

Western Sahara (Advisory Opinion, 1975)

what is terra nullus?

this place is one of the colonies of Spain

HELD: There were legal ties but only legal ties of allegiance and not of sovereignty.

 

Accordance with IL of the Unilateral Declarion of Independece in Respect of Kosovo (Request for Advisory Opinion) (2010)

 

  1. Binding Effect of the Executive’s position in foreign relations to the courts

CASE:

  • Mingtai Fire and Marine Insurance Co v US (1999)
    • WON the executive’s position in foreign relations binds the court.
    • HELD: Yes. The Supreme Court has repeatedly held that the Constitution commits to the Executive Branch alone the authority to recognize, and to withdraw recognition from, foreign regimes. Similarly, “governmental action must be regarded as of controlling importance” in determining the status of treaties.

 

The Warsaw convention in this case does not apply to Taiwan hence the Dc properly upheld the limitation of liability in the airway bill.

The Convention only applies to shipments between territories of signatories, otherwise referred to as “High Contracting Parties.” The parties do not dispute that Taiwan is not a High Contracting Party, nor that China is a High Contracting Party.

 

 

  1. Rights and Obligations of a state
    1. Right to sovereignty
    2. Right to equality of states
    3. Right to self-defense
    4. Right to international discourse
  2. Succession of states
  3. Examples
    1. The former USSR
    2. The former Socialist Federal Republic of Yugoslavia
    3. China (ROC vs PRC)

Mingtal Fire and Marine Insurance Co vs United Parcel Service (1999)

 

 

CHAPTER III. DE FACTO AND REVOLUTIONARY GOVERNMENTS

 

  1. Definitions
    1. De jure
    2. De facto
  2. Types of de facto governments

CASE: Co Kim Cham v. Valdez Tan Keh, G.R. No. L-5, September 17, 1945

  1. De facto government in pure legal sense
    1. Examples
  2. De facto government of paramount force
  3. De facto government established by a secessionist movement
  1. Validity of obligations incurred by de facto government

CASES:

  1. Great Britain-Costa Rica Arbitral Tribunal (Tinoco Arbitration case), 18 October, 1923
  2. George W. Hopkins (USA) v. United Mexican States, March 21, 1926
  3. Acts of belligerent state as acts of war

CASES:        

  1. Underhill v. Hernandez, 168 U.S. 250 (1897)
  2. Ford v. Surget,97 U.S. 594 (1878)
  3. Civil actions pending commenced during de facto government may continue after the liberation

CASE: Co Kim Cham v. Valdez Tan Keh, supra

  1. Political acts of de facto governments or belligerents
    1. Effect after the de facto government ends
    2. Acts that are not of political or military complexion: remains valid

CASE: Alcantara v. Director of Prisons, G.R. No. L-6, November 29, 1945

  1. Revolution
    1. Definition
    2. Effect

CASES:

Republic v. Sandiganbayan, G.R. No. 104768, July 21, 2003

In re: Letter of Associate Justice Reynato S. Puno, A.M. No. 90-11-2697-CA, June 29, 1992

  1. Judicial decisions of courts of a de facto government

CASES:

  1. Etorma v. Ravelo, G.R. No. L-718, March 24, 1947
  2. Notor v. Martinez, G.R. No. L-1892, August 16, 1949
  3. Montebon v. Director of Prisons, G.R. No. L-1352, April 30, 1947
  4. Haw Pia v. China Banking Corporation, G.R. No. L-554, April 9, 1948
  5. Recognition is a political act

CASE: Oetjen v. Central Leather Co., 246 U.S. 297 (1918)

  1. Non-recognition: does not render a de facto government not de facto anymore
    1. Distinction: recognition vs. existence of de facto government
    2. Denunciation of rightful government of a de facto government as a “puppet” government

CASE: Etorma v. Ravelo, supra

 

 

CHAPTER IV. SOVEREIGNTY

 

  1. Sovereignty
    1. Definition
    2. Aspects
      1. Internal
      2. External
    3. Vested in the rightful government
  2. Attributes of a sovereign state
  3. Change of ruler/government
    1. Instances of change of ruler/government
    2. Effects of change of ruler/government
    3. What may be suspended: EXERCISE OF THE RIGHT OF SOVEREIGNTY, not sovereignty itself

CASE: Laurel v. Misa (theory of suspended allegiance), G.R. No. L-409, January 30, 1947

  1. Restrictions on sovereignty in general
    1. GR: sovereignty is absolute and supreme within its territorial domain
      1. EXC: consent to restriction of sovereignty
        1. Express
        2. Implied
      2. Waiver of criminal jurisdiction over certain offenses within territory

CASES:                

  1. People v. Gozo, G.R. No. L-36409 October 26, 1973
  2. Reagan v. CIR, G.R. No. L-26379, December 27, 1969
  3. Reid v. Covert, 354 U.S. 1 (1957) N/A
  1. Restrictions on sovereign rights by treaty stipulation
    1. Example No. 1: The World Trade Organization (WTO)

CASE: Tañada v. Angara, G.R. No. 118295, May 2, 1997

  1. Example No. 2: Extradition Treaties
    1. Extradition defined
    2. Entering into an extradition treaty is a derogation of sovereignty; no right of extradition arises apart from a treaty
  • Paramount principle in law of extradition: A state may not surrender any individual for any offense not included in the extradition treaty s
  1. Ground
  2. Obligation to extradite of the requested state: only arises after determination of the validity of the requesting state’s demand
  3. double criminality rule

CASES:        

  1. Gov’t of U.S. v. Purganan, G.R. No. 148571,September 24, 2002
  2. Gov’t of Hong-Kong v. Olalia, G.R. No. 153675, April 19, 2007
  3. Gov’t of Hong-Kong v. Muñoz, G.R. No. 207342, August 16, 2016

 

  1. Waiver of jurisdiction by adherence to conventions
    1. GR: Jurisdiction over the subject matter is defined by the Constitution and the laws
      1. EXC: concession of jurisdiction by treaty

CASE: Santos v. Northwest Airlines, G.R. No. 101538, June 23, 1992

  1. Duty of state to protect its citizen

CASES:        

  1. Dames & Moore v. Reagan, 453 U.S. 654 (1981)
  2. Case Concerning Avena and Other Mexican Nationals (Mexico v. U.S.),2004 I.C.J. 12, March 31, 2004 à Aftermath: read Medellin v. Texas, 552 U.S. 491(2008)
  3. Holy See v. del Rosario, G.R. No. 101949 December 1, 1994
  4. Extra-Judicial Application of Laws in Respect to Citizens
    1. Citizenship – link that binds a citizen to his country

CASES:

  1. Blackmer v. U.S., 284U.S.421 (1932)
  2. EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991)
  3. GR: STATUTORY TERRITORIALITY: Laws only apply in the territory of the state
    1. EXC: contrary intent clearly appears
      1. Philippine laws that apply to citizens abroad
        1. Constitutional provisions
        2. Civil Code provisions
        3. Tax laws of the Phils.
        4. The Corporation Code
        5. GR: If Phil. Law is silent, Phil. Courts are not at liberty to extend the force and effect of foreign law to our jurisdiction; EXC: Congress, by law, gives consent to the extension of a specific foreign law to the Phils.

CASE: Brownell v. Bautista, G.R. No. L-6801, September 28, 1954

  1. Problems of dual citizenship
    1. Dual citizenship defined
    2. RA 9225
  2. Sovereignty over a leased portion of the country

CASE: U.S. v. Spelar, 338 U.S. 217 (1949)

  1. Exceptions to territorial application of law by consent

CASE: Brownell v. Bautista, supra

  1. Other forms of implied waiver

CASE: U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990)

                                                                                                                                               

 

 

CHAPTER III. DE FACTO AND REVOLUTIONARY GOVERNMENTS

 

  1. Definitions
    1. De jure
    2. De facto
  2. Types of de facto governments

CASE: Co Kim Cham v. Valdez Tan Keh, G.R. No. L-5, September 17, 1945

  1. De facto government in pure legal sense
    1. Examples
  2. De facto government of paramount force
  3. De facto government established by a secessionist movement
  1. Validity of obligations incurred by de facto government

CASES:

  1. Great Britain-Costa Rica Arbitral Tribunal (Tinoco Arbitration case), 18 October, 1923
  2. George W. Hopkins (USA) v. United Mexican States, March 21, 1926
  3. Acts of belligerent state as acts of war

CASES:        

  1. Underhill v. Hernandez, 168 U.S. 250 (1897)
  2. Ford v. Surget,97 U.S. 594 (1878)
  3. Civil actions pending commenced during de facto government may continue after the liberation

CASE: Co Kim Cham v. Valdez Tan Keh, supra

  1. Political acts of de facto governments or belligerents
    1. Effect after the de facto government ends
    2. Acts that are not of political or military complexion: remains valid

CASE: Alcantara v. Director of Prisons, G.R. No. L-6, November 29, 1945

  1. Revolution
    1. Definition
    2. Effect

CASES:

Republic v. Sandiganbayan, G.R. No. 104768, July 21, 2003

In re: Letter of Associate Justice Reynato S. Puno, A.M. No. 90-11-2697-CA, June 29, 1992

  1. Judicial decisions of courts of a de facto government

CASES:

  1. Etorma v. Ravelo, G.R. No. L-718, March 24, 1947
  2. Notor v. Martinez, G.R. No. L-1892, August 16, 1949
  3. Montebon v. Director of Prisons, G.R. No. L-1352, April 30, 1947
  4. Haw Pia v. China Banking Corporation, G.R. No. L-554, April 9, 1948
  5. Recognition is a political act

CASE: Oetjen v. Central Leather Co., 246 U.S. 297 (1918)

  1. Non-recognition: does not render a de facto government not de facto anymore
    1. Distinction: recognition vs. existence of de facto government
    2. Denunciation of rightful government of a de facto government as a “puppet” government

CASE: Etorma v. Ravelo, supra

 

 

CHAPTER IV. SOVEREIGNTY

 

  1. Sovereignty
    1. Definition
    2. Aspects
      1. Internal
      2. External
    3. Vested in the rightful government
  2. Attributes of a sovereign state
  3. Change of ruler/government
    1. Instances of change of ruler/government
    2. Effects of change of ruler/government
    3. What may be suspended: EXERCISE OF THE RIGHT OF SOVEREIGNTY, not sovereignty itself

CASE: Laurel v. Misa (theory of suspended allegiance), G.R. No. L-409, January 30, 1947

  1. Restrictions on sovereignty in general
    1. GR: sovereignty is absolute and supreme within its territorial domain
      1. EXC: consent to restriction of sovereignty
        1. Express
        2. Implied
      2. Waiver of criminal jurisdiction over certain offenses within territory

CASES:                

  1. People v. Gozo, G.R. No. L-36409 October 26, 1973
  2. Reagan v. CIR, G.R. No. L-26379, December 27, 1969
  3. Reid v. Covert, 354 U.S. 1 (1957) N/A
  1. Restrictions on sovereign rights by treaty stipulation
    1. Example No. 1: The World Trade Organization (WTO)

CASE: Tañada v. Angara, G.R. No. 118295, May 2, 1997

  1. Example No. 2: Extradition Treaties
    1. Extradition defined
    2. Entering into an extradition treaty is a derogation of sovereignty; no right of extradition arises apart from a treaty
  • Paramount principle in law of extradition: A state may not surrender any individual for any offense not included in the extradition treaty s
  1. Ground
  2. Obligation to extradite of the requested state: only arises after determination of the validity of the requesting state’s demand
  3. double criminality rule

CASES:        

  1. Gov’t of U.S. v. Purganan, G.R. No. 148571,September 24, 2002
  2. Gov’t of Hong-Kong v. Olalia, G.R. No. 153675, April 19, 2007
  3. Gov’t of Hong-Kong v. Muñoz, G.R. No. 207342, August 16, 2016

 

  1. Waiver of jurisdiction by adherence to conventions
    1. GR: Jurisdiction over the subject matter is defined by the Constitution and the laws
      1. EXC: concession of jurisdiction by treaty

CASE: Santos v. Northwest Airlines, G.R. No. 101538, June 23, 1992

  1. Duty of state to protect its citizen

CASES:        

  1. Dames & Moore v. Reagan, 453 U.S. 654 (1981)
  2. Case Concerning Avena and Other Mexican Nationals (Mexico v. U.S.),2004 I.C.J. 12, March 31, 2004 à Aftermath: read Medellin v. Texas, 552 U.S. 491(2008)
  3. Holy See v. del Rosario, G.R. No. 101949 December 1, 1994
  4. Extra-Judicial Application of Laws in Respect to Citizens
    1. Citizenship – link that binds a citizen to his country

CASES:

  1. Blackmer v. U.S., 284U.S.421 (1932)
  2. EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991)
  3. GR: STATUTORY TERRITORIALITY: Laws only apply in the territory of the state
    1. EXC: contrary intent clearly appears
      1. Philippine laws that apply to citizens abroad
        1. Constitutional provisions
        2. Civil Code provisions
        3. Tax laws of the Phils.
        4. The Corporation Code
        5. GR: If Phil. Law is silent, Phil. Courts are not at liberty to extend the force and effect of foreign law to our jurisdiction; EXC: Congress, by law, gives consent to the extension of a specific foreign law to the Phils.

CASE: Brownell v. Bautista, G.R. No. L-6801, September 28, 1954

  1. Problems of dual citizenship
    1. Dual citizenship defined
    2. RA 9225
  2. Sovereignty over a leased portion of the country

CASE: U.S. v. Spelar, 338 U.S. 217 (1949)

  1. Exceptions to territorial application of law by consent

CASE: Brownell v. Bautista, supra

  1. Other forms of implied waiver

CASE: U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990)

 

 

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