SAN SEBASTIAN COLLEGE-RECOLLETOS Institute of Law 2nd Sem, 2015-2016 Course Title: PUBLIC INTERNATIONAL LAW Course Unit: 2 units Lecturer: DR. RODEL A. TATON, LL.M., DCL1
The course is devoted to a study of the detailed contents of the international law, in substantive and procedural aspects and its role in the international community. It expounds on the important principles and case law which should be considered by the law students. This course examines the subject matter of international law particularly the areas most frequently asked and with the current trends in the international community, can be possible sources in the preparation for the bar examinations. The course will discuss the nature of international law, the subjects of international law, the law of treaties, the jurisdiction of states, state responsibility and international human rights. Further, international dispute resolution will be tackled as war and peace must be focused in this current times. POLICIES/REQUIREMENTS
Students are expected to participate in discussions. Grades will be based on class standing and two (2) major examinations. MATERIALS A. The standard book will be BERNAS, JOAQUIN G. (2009) AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW, Rex Printing Company: Quezon City Philippines. B. Students may utilize other sources/materials to answer the Guide Questions indicated in every topic, using relevant case law and materials from their personal research. C. Students are required to read the cases cited and those that are listed in the items below. D. The text of foreign cases may be downloaded from the following: http://www.echr.coe.int/Eng/judgments.htm http://www.supremecourt.gov.ph http://www.icj-cij.org/icjwww/decisions.htm http://www.worldbank.org/icsid/cases/awards.htm
1 Dr. Taton is currently the Dean of the Graduate School of Law, San Sebastian College-Recoletos Manila, a Graduate School of Law Professorial Lecturer at the University of Santo Tomas Graduate School of Law (Master of Laws and Doctor of Civil Law), UST-University of San Agustin Master of Laws Consortium. He is also a professorial lecturer at the SSC-R Institute of Law on Persons and Family Relations, International Human Rights and Public International Law. He is an MCLE lecturer at the University of the Philippines Law Center, San Beda College and Manila Law Center, Integrated Bar of the Philippines and other accredited MCLE providers on Updates and Trends in International Dispute Resolution and International Commercial Arbitration. He has degrees in Bachelor of Arts in Political Science, Bachelor of Laws, Master of Laws and Doctor of Civil Law. He manages Taton Law and Notarial Office. Email may be sent to:
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COURSE OUTLINE: I.
THE NATURE OF INTERNATIONAL LAW
Fr. Joaquin G. SJ., 2009, “Chapter 1: The Nature of International Law” “Chapter 2: Source of International Law” 4: International Law and Municipal Law” , in An Introduction to Public International Law, (Rex Printing Company, Inc.).
Dean Merlin Magallona, “The Concept of Jus Cogens in the Vienna Convention on the Law of Treaties,’’ in International Issues in Perspective (1996)
Kuroda vs. Jalandoni, 83 Phil. 171 (1979). Co Kim Cham vs. Valdez Tan Keh, 75 phil. 113 (1945). Mejoff vs. Director of Prisons, 90 Phil. 70 (1951). Baer vs. Tizon, 57 SCRA 1 (1974). Tanada vs. Angara, 272 SCRA 18. Arthur Lim et.al., vs. Executive Secretary, GR #151445, April 11, 2002. II. SUBJECTS OF INTERNATIONAL LAW
Fr. Joaquin G. Bernas, S.J., 2009, “Chapter 5: Subjects of International Law”, in An Introduction to Public International Law, (Rex Printing Company, Inc.), p. 71-85, In Re: Letter of associate Justice Puno, 210 SCRA 589 (1992). Holy See vs. Hon. Eriberto Rosario, Jr., 238 SCRA 524 (1994). Lawyers League for a Better Philippines vs. Corazon Aquino, G.R.No. 73748, May 22, 1986. People vs. Perfecto, 43 Phil. 887. (Tinoco Case) Great Britain v. Costa Rica, Arbitral Tribunal, 18 October 1923. Mexico vs. US (2004), available at: http://www.icj-cij.org/icjwww/idocket/imus/imusframe.htm Republic of the Philippines vs. Ferdinand Marcos, 806 Fd. 344, US Court of Appeals. SGS Societe Generale de Surveillance S.A v. Republic of the Philippines (ICSID Case No. ARB/02/6 – January 29, 2004), available at: http://www.worldbank.org/icsid/cases/awards.htm III. THE LAW OF TREATIES
Fr. Joaquin G. Bernas, S.J., 2009 “Chapter 3: The Law of Treaties”, in An Introduction to Public International Law, (Rex Printing Company, Inc.), pp. 22-56. Santos III vs. Northwest Orient Airlines, 210 SCRA 256. Tanada III vs. Angara, 272 SCRA 18. Arthur Lim et.al., vs. Executive Secretary, GR # 151445, April 11,2002. BAYAN et al., vs. Executive Secretary, G.R #138570, October 10, 2000. Pimentel vs. Executive Secretary , G.R No. 158088. July 6, 2005. Constantino vs. Cuisia, G.R. No. 106064. October 13, 2005.
IV. JURISDICTION OF A STATES
Fr. Joaquin G. Bernas, S.J., 2009, “ Chapter 7: Territory: Land, Air, Outer Space”, “ Chapter 8: Territory: Law of the Sea”, Chapter 9: Jurisdiction of States and Chapter 10: Immunity from Jurisdiction”, in An Introduction to Public International Law, (Rex Printing Company, Inc.), pp. 103-116; 120-131; 133-219. The Province of North Cotabato et al. v. The Government of the Republic of the Philippines et al. G.R. Nos. 183591, 183752, 183893, 183951 and 183962, 14 October 2008 Western Sahara Advisory Opinion, 1975 I.C.J. 12 Island of Palmas, 2 R.I.A>A. 829, 844 (1928)
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Eastern GreenlND Case, PCIJ, Ser A/B, No. 53 (1933), 16 Case Concerning Sovereignty over Pulua Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment ICJ Reports (2001), 15. Clipperton Island Case, 26 Am. J. Int’l L. 390, 394 (1932), 394 Case Concerning Kasikili/Sedudu Island (Botswana/Namibia) 1999 WL 1693057 (ICJ), 1999 ICJ 1045 Attorney General of Israel v. El-Turani, ILR 18 (1951), no. 39 United States vs. Hon. V.M. Ruiz, 136 SCRA 487 (1985). United States vs. Hon. Luis Reyes, 219 SCRA 192 (1993). Paul Joseph Wright v. Court od Appeals, G.R. No. 113213. August 15, 1994. Khosrow Minucher vs. Court of Appeals, GR #142396, February 11, 2003. Republic of Indonesia vs. James Vinzon, GR #154705, June 26, 2003. United States vs. Hon. Judge Purganan, GR #148571, Domingo v. Scheer, G.R. No. 154745. January 29, 2004. Soering vs. UK, 11 European Human Rights Report 439 (1989). Chalal vs. UK, 23 EHRR 413 (1996). D vs. UK, 24 EHRR 423 (1997).
V. STATE RESPONSIBILITY AND INTERNATIONAL HUMAN RIGHTS
Fr. Joanquin G. Bernas, S.J., 2009, “Chapter 11: State Responsibilty”, and Chapter 12: International Human rights Law”, in An Introduction to Public International Law, (Rex Printing Company, Inc.). pp. 223-247;248-265. Smith and Grady vs. UK, 29 EHRR 493 (1999). Johansen vs. Norway, 23 EHRR 33 (1996). USA vs. Iran (December 15, 1979), available at: http://www.icjcij.org/icjwww/icases/iusir/iusi_iorders/iusir_19791215.pdf Iran vs. USA (November 6, 2003), available at: http://www.icj-cij.org/icwww/ipresscom/ipress2003/ipresscom200338_op_20031106.htm (La Grand Case) Germany vs. USA (2001), available at: http://www.icj-cij.org/icjwww/ipresscom/ipress2001/ipresscom2001-16_20010627.htm (Abu Ghraid Prison Case) Human Rights Abuses by the USA (2004), at: http://www.publicintegrity.org/report.aspx?aid=396&sid=100 Ireland vs. UK, 2EHRR 25 (1978). Aksoy vs. Turkey, 23 EHRR 553 (1996). Aydin vs. Turkey, 25 EHRR 251 (1997).
VI. INTERNATIONAL ORGANIZATIONS
Fr. Joaquin G. Bernas, S.J., 2009 “Chapter 6: Other Subjects of International Law”, in an Introduction to Public International Law, (Rex Printing Company, Inc.), pp.87-101 SEAFDEC vs. Hon Acosta, 241 SCRA 681 (1995). WHO vs. Hon. Aquino, 48SCRA 242 (1972). DFA vs. NLRC, 262 SCRA 39 (1996). Tanada vs. Angara, GR No. 118295, May 2, 1997. The United Nations, available at: http://www.un.org/aboutun/index.html The World Trade Organization, available at: http://www.wto.org/english/thewto_e/whatis_e/whatis_e.htm The International Court of Justice, available at: http://www.icj-cij.org/icjwww/igeneralinformation.htm The World Bank (ICSID), available at:
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http://web.worldbank.org/WBSITE/EXTERNAL/EXTABOUTUS/O,,pagePK:5004410piPK:36602-theSitePK:29708,00.html The European Union, available at: http://european.eu.int/abc/index_en.htm The ASEAN, available at: http://www.aseansec.org/64.htm VII. WAR AND PEACE
Fr. Joaquin G. Bersan, S.J., 2009 “Chapter 13: Peaceful Settlement of International Disputes”, “Chapter 14: The Use of Force Short of War”, and Chapter 15: The Law of War”, in An Introduction to Public International Law, (Rex Printing Company, Inc.), pp. 267-294; 295-302;307-317.
Tan Se Chiong vs. Director of Prisoners, L-5920, June 25, 1955. Laurel vs. Misa, 77 Phil 856. Kim Chan vs. Valdez Tan Keh, 75 Phil.113. Ognir Vs. Director of Prisons, 80 Phil.401. Yamashita vs. Styer, 75 Phil 563. (Haya de la Torre Case) Colombia vs. Peru (June 13, 1951), at: http://www.icjcij.or/icjwww/idecisions/isummaries/ihayasummary510613.htm (ambatielos Case) Greece vs. UK (May 19, 1953), at: http://www.icjcij.org/icjwww/idecisions/isummaries/iguksummary53519.htm Nicaragua vs. USA (November 26, 1984), available at: http://www.icjcij.og/icjwww.icases/inus/inus_ijudgment_19841126.pdf ICJ advisory Opinion: Legality of the Threat or Use of Nuclear Weapons (July 8, 1996), available at: http://www.icj-cij.org/icjwww/icases/iunan/iunanframe.htm Yugoslavia vs. USA (June 2, 1999), available at: http://www.icj-cij.org/icjwww/idocket/iyus/iyusframe.htm
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GUIDE QUESTIONS Part I Is international law- law? What are the bases of International law? What is meant by “jus cogens”? What is meant by “erga omnes”? What is meant by “opinion juris”? What are the sources of International Law? Distinguish “soft law” from “hard law”? How do we distinguish Private international law from public international law? Is there collective responsibility for a breach of international law? What is the extent of a State’s freedom of action? Distinguish between the Monist and Dualist theorist of International law. Distinguish between the doctrine of incorporation and the doctrine of transformation. In case of conflict between minucipal law international law, which should prevail? What are the Calvo and Drago doctrines? What is the Doctrine of Sovereign Equality of States? What is the Doctrine of Non-Intervention? What is the Principle of Self-Determination of People? PART II What are elements of a State? Is Recognition an element of a State? What are the theories on Recognition of a State? Distinguish the following doctrines: Tobar/Wilson, Stimson, and Estrada. Distinguish de jure from de facto recognition. Is the Holy See a State? What is the Principle of Succession of States/Government? What is Belligerency? What is the “Uti Possidetis” Doctrine? What is the Doctrine of Sovereign Immunity? What is the “Act of State of Doctrine”? Part III Distinguish between Treaty and a Executive Agreement? What is meant by a peremptory norm”? How is a treaty made? What are the essential requisites of a valid treaty? What is the effect of a Reservation? What is a Protocol de Cloture? When does a treaty take effect? When may non-signatories be bound by a treaty? What is the effect of non-ratification of a treaty? What is the Principle of Effectiveness in the interpretation of treaties? What is meant by the Principle of Pacta Sunt Servanda? What is meant by the Principle of Rebus Sic Stantibus? What is the effect of a breach of a treaty? What are the grounds for invalidating a treaty? How are treaties terminated? PART IV What are the modes of acquiring territory?
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What does discovery and occupation mean as a mode of acquiring territory? What is the Doctrine of Effective Occupation? What is the legal basis of the Philippine’s claim over the Kalayaan Islands? What is the Archipelago Doctrine? What is the Thalweg Doctrine? Distinguish the Territorial Sea from the High Seas. What is the Doctrine of Innocent Passage? What are the Five Freedom in a State’s Aerial Domian? What is the Principle of State Continuity? What is Recognition of States? What are the effects of Recognition of States? What are the theories on Recognition of States? Distinguish Recognition of States from Recognition of Government What is the Tobar or Wilson Doctrine? What is the Estrada Doctrine? What is Belligerency? What are the requisites in recognizing Belligerency? Distinguish insurgency from belligerency. Distinguish between Extradition and Deportation. May a State refuse to grant a request for extradition? What is meant by the “attentat clause”? What is the Nationality Doctrine? What is the Principle of Universality of Jurisdiction? What is the Principle of Territoriality and Extra-territoriality? What is the Protective Principle of Jurisdiction? What is meant by Statelessness? Distinguish Repatriation from Naturalization. What is meant by the Doctrine of Specialty? What is the Doctrine of Double Criminality? What is the Restrictive Doctrine of Immunity? What is meant by “asylum”? What is meant by the Right of Legation? Distinguish Diplomatic Immunities from Consular Immunities. PART V When will ma State be held responsible fro death or injuries suffered by aliens within its jurisdiction? What is the extent of a State’s responsibility for the acts of its officials? What is an “internationally wrongful act”? What is the notion of an “Injured State”? Distinguish Reparation from Restitution. What are the remedies for an internationally wrongful act? How many a State be precluded from liability for an internationally wrongful act? May a State be made to pay damages for violation of Human rights? What is meant by “terrorism”? Are Terrorists entitled to human rights protection? What is torture”? Distinguish Torture from inhuman or degrading treatment and punishment”. May torture be used as a legitimate policy by a State? What is an International Crime? When does individual criminal liability attach? Distinguish Command Responsibility from Superior Responsibility What is the Doctrine of Cumulative Convictions? What are the Nuremberg Principles? What crimes fall within the Jurisdiction of the International Criminal Court? Is there a Head of state Immunity in the ICC? Can the ICC order the arrest of a sitting president? May the accused be tires in absentia in the ICC? Is the rule on Presumption of innocence applicable in the ICC? What is International humanitarian Law? How is it different from Human Right Law? What is an international armed conflict? What is an international armed conflict?What are the Geneva protocols?
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What right are guaranteed under the Geneva convention? What is a war of national liberation? Who are lawful combatants? What are the rights of a Prisoner of War? What are the limitations on the means and methods of war? Distinguish Civilian targets from military targets What is the Doctrine of Military Necessity? What is the Doctrine of Proportionality? What is the Principle of Discrimination? What is perfidy? What are ruses of war? PART VI What is the extent of the immunity granted to International Organizations? How are international organizations regulated under International Law? May an international organization be held liable under International Law? Is the United Nations still relevant? What are the powers and functions of the UN Security Council? Distinguish the powers and functions of the Philippine Supreme Court and the International Court of Justice. What are the powers and functions of the International Court of Settlement of Investment Disputes (ICSID)? May an individual sue a State under International Law? How does a State procure loans? What are the legal consequences of a State’s failure to pay its loans? Compare and contrast the World Bank and the Central Bank of the Philippines. What is “economic integration”? Compare and contrast the European Union and the ASEAN. PART VII What are the traditional means of settling international disputes? Compare and contrast: Negotiation, Enquiry, Conciliation, Mediation, Good Offices, and Arbitration. May a State use force or a threat of force against another State? What is the Principle of No-Intervention? Distinguish between the “optional jurisdiction clause” and the “domestic jurisdiction clause” in the Charter of the United Nations. What is the Doctrine of Humanitarian Intervention? What is “use of force”? What is the doctrine of non-intervention? Are there exceptions? What is meant by “adherence to the jurisdiction” of the ICJ? Can the ICJ compel the attendance of witnesses or the production of documents? Does it have contempt powers? What is the remedy should parties refuse to comply with a valid order of the ICJ? Is there opinion juris to support the contention that the ICJ cannot compel states to produce “classified intelligence information”? What is the basis of the jurisdiction of the ICJ? How can the ICJ enforce its decisions or implement its legal processes? What is the Principle of Pre-emptive Strike? What is the Doctrine of Collective Self-Defense? What is Unilateralism? Distinguish Retortion from Reprisal. What is an “economic embargo”? Distinguish “non-intercourse” from boycott”. What is meant by “war”? What is the Principle of Military necessity? What is meant by the principle of “Postliminium”? Distinguish “mercenaries” from “spies”? Distinguish a neutral state from a neutralized state.
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