GENERAL PRINCIPLES

Green Hackworth has defined Public International Law as a branch of public

law that regulates the relationship of states and other entities that have been
granted legal or international personality.

The conflict between states gave rise to the creation of institutions to prevent
the recurrence of war. Though every nation has sovereignty, there must still be a
rule of conduct in the international sphere. This led to the creation of the United
Nations after World War II as an international agency for the maintenance of peace.

The Philippine Constitution recognizes Public International Law particularly

with possible conflicts between the two. For instance, when the Convention on the
Law of the Sea was ratified, the government included a reservation. Most notably,
however, is the Incorporation Clause under Article II, Section 2 of the 1987
Constitution stating that The Philippines x x x adopts the generally accepted
principles of international law as part of the law of the land x x x.
A distinction should be made between public international law, sometimes
referred to only as international law, and private international law, more commonly
called conflict of laws.

Public international law governs the relationships between and among states
and also their relations with international organizations and individual persons.
Private international law is really domestic law which deals with cases where
foreign law intrudes in the domestic sphere where there are questions of the
applicability of foreign law or the role of foreign courts.

There are three philosophical basis of Public International law, namely, the
Naturalist Theory, the Positivist Theory, and the Eclectic or Glotian Theory. The
Naturalist Theory posits that law is derived by reason from the nature of man
International law is said to be an application of natural reason to the nature of the
state-person. 1

The Positivist Theory states that all acts of states under Public International
Law should be supported by voluntary consent. There are 3 key assumptions of
positivism as explanation for laws legitimacy: positive declaration i.e. law must be
1 Bernas, J. G. (2009). INTRODUCTION TO PUBLIC INTERNATIONAL LAW. Quezon City, Philippines: REX Printing Co.,
Inc. 84 P.
expressed; International Law is created by sovereign states which are the subject of
international law; and it holds that law is effective even if it is unjust when
measured against some moral standard i.e. there is no necessary conformity of
international law to morality.2

The Eclectic Theory is a combination of the Naturalist and the Positivist

Theories, that state actions are motivated by rationality and voluntary consent.

The three grand divisions of Public International law are the Laws of Peace,
the Laws of War, and the Laws of Neutrality. The Laws of Peace deals with normal
relations between states in the absence of war. The Laws of War refers to laws on
relations between hostile or belligerent states during wartime. The Laws of
Neutrality defines the relations between a non-participant state and a participant
state during wartime. This also refers to the relations among non-participating
states.

The relationship of Public International Law and Municipal Law are

governed by two theories. The Monist Theory states that there is no difference
between the two laws, however if there is a perceived conflict, there must an effort
to harmonize the two. On the other hand, the Dualist Theory posits that there is a
dichotomy of the two laws.

The constitutional policy of a self-reliant and independent national economy does not necessarily
rule out the entry of foreign investments, goods and services. It contemplates neither economic
seclusion nor mendicancy in the international community. 3

With respect to right reserved to the State, the treaty-making power is not limited to what may be
done by an unaided act of Congress.

It is said that a treaty cannot be valid if it infringes the Constitution, that there are limits,
therefore, to the treaty-making power, and that one such limit is that what an act of Congress
could not do unaided, in derogation of the powers reserved to the States, a treaty cannot do. 4

2 Two main approaches to international law: positivism and naturalism. (2014, March 27). Retrieved March 5, 2017,
from http://anonymouslawstudent.com/2014/03/a-history-two-main-approaches-to-international-law-positivism-and-
naturalism/

3 SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila,
Branch 25, and MARK B. JIMENEZ, respondents. [G.R. No. 139465. January 18, 2000]

4 Missouri vs. Holland

 A rule of equality thus established stands on the same footing of supremacy as the federal
Constitution and laws, cannot be rendered nugatory in any part of the United States by municipal
ordinances or state laws, operates without the aid of legislation, state or national, and is to be
applied and given authoritative effect by the courts. 5

If, however, the court has no option to refuse the enforcement of legislation in contravention of
principles of international law, it does not follow that in construing the terms and provisions of a
statute it may not assume that such principles were on the national conscience and that the
congressional act did not deliberately intend to infringe them. In other words, unless it
unmistakably appears that a congressional act was intended to be in disregard of a principle of
international comity, the presumption is that it was intended to be in conformity with it. 6

There is an absence of a centralized legislative, executive and judicial structure in

public international law, there is no single body able to legislate and there is no
system of courts with compulsive power to decide what the law is nor is there a
centralized repository of international law.7 Despite such absence, sources of the
law can be found which can be classified as either formal sources, those arising
from treaties or international conventions, international customary law, and general
principles of law, or material sources, such as decisions of courts and writings of
notable publicist.

For an international rule to be considered as customary law, it must be established that such rule
is being followed by states because they consider it obligatory to comply with such rules (opinio
juris). 8

Where there is no treaty and no controlling executive or legislative act or judicial decision, resort
must be had to the customs and usages of civilized nations, and, as evidence of these, to the
works of jurists and commentators, not for the speculations of their authors concerning what the
law ought to be, but for trustworthy evidence of what the law really is. 9

In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct
of states should, in general, be consistent with such rules, and that instances of state conduct
inconsistent with a given rule should generally have been treated as breaches of that rule, not as
indications of the recognition of a new rule.10

5 Asakura v. City of Seattle, 265 U.S. 332

6 THE OVER THE TOP, (D.CONN. 1925)

7 Introduction to Public International Law, Joaquin G. Bernas, S J., pg. 8

8 Pharmaceutical v. DOH

9 The Paquete Habana, 175 U.S. 677 (1900)

 Although the passage of only a short period of time is not necessarily, or of itself, a bar to the
formation of a new rule of customary international law on the basis of what was purely a
conventional rule, an indispensable requirement would be that within the period in question,
short though it might be, State practice, including that of states whose interests are specially
affected, should have been both extensive and virtually uniform in the sense of the provision
invoked and should moreover have occurred in such a way as to show a general recognition
that a rule of law or legal obligation is involved.11

The subjects of Public International Law may be considered as complete

subjects or incomplete subjects. A subject is complete when it complies with the
four basic elements of statehood, namely, people, government, territory, and
sovereignty. An incomplete subject is one which lacks any of the four elements of
statehood, examples of which are colonies, trust territories, and dependencies.
Under the Vienna Convention on Diplomatic Relations, a diplomatic agent enjoys immunity from
criminal jurisdiction of the receiving state except in the case of an action relating to any
professional or commercial activity exercised by the diplomatic agent in the receiving state
outside his official functions.12

An entity has an international personality if it can directly enforce its rights

and duties under international law. Where there is no direct enforcement of
accountability and an intermediate agency is needed, the entity is merely an object
not a subject of international law.
In a community of national states, the Vatican City represents an entity organized not for political
but for ecclesiastical purposes and international objects. Despite its size and object, the Vatican
City has an independent government of its own, with the Pope, who is also head of the Roman
Catholic Church, as the Holy See or Head of State, in conformity with its traditions, and the
demands of its mission in the world. Indeed, the world-wide interests and activities of the Vatican
City are such as to make it in a sense an "international state". 13

It bears noting that in U.S. constitutional and international practice, free association is
understood as an international association between sovereigns. x x x In international practice,

10 Nicaragua v. United States

11 North Sea Continental Shelf Cases,

12 LIANG (HUEFENG) vs. PEOPLE OF THE PHILIPPINES, G.R. No. 125865, January 28, 2000

13 Holy See vs Rosario, December 1, 1994

 the associated state arrangement has usually been used as a transitional device of former
colonies on their way to full independence. x x x The concept of association is not recognized
under the present Constitution. 14

x x x the Organization possessing as it does rights and obligations, has at the same time a large
measure of international personality and the capacity to operate upon an international plane,
although it is certainly not a super-state.15

The term recognition, when used in the context of recognition of States and
governments in international law, may indicate the recognizing States willingness
to enter into official relations with a new State or government, or manifest its
opinion on the legal status of a new entity or authority, or both. A de facto
government is a government wherein all the attributes of sovereignty have, by
usurpation, been transferred from those who had been legally invested with them to
others, who, sustained by a power above the forms of law, claim to act and do
really act in their stead. A de jure government, on the other hand, is the legal,
legitimate government of a state and is so recognized by other states. In contrast, a
de facto government is in actual possession of authority and control of the state.
Changes in the government or the internal policy of a state do not as a rule affect its position in
international law. x x x the nation remains, with rights and obligations unimpaired. The principle
of the continuity of states has important results. The state is bound by engagements entered into
by governments that have ceased to exist; the restored government is generally liable for the acts
of the usurper.16

The reigning sovereign represents the national sovereignty, and that sovereignty is continuous
and perpetual, residing in the proper successors of the sovereign for the time being. x x x the
sovereignty does not change, but merely the person or persons in whom it resides. x x x The
reigning Emperor or national assembly or other actual person or party in power is but the agent
and representative of the national sovereignty. A change in such representative works no change
in the national sovereignty or its rights.17

14 North Cotabato vs. GRP Peace Panel, October 14, 2008

15 REPARATIONS FOR INJURIES SUFFERED IN THE SERVICE OF THE UNITED NATIONS (ICJ)

16 The Tinoco Claims Arbitration

17 The Sapphire (U.S. Supreme Court)

 If the party seeking to dislodge the existing government succeeds, and the independence of the
government it has set up is recognized, then the acts of such government from the commencement
of its existence are regarded as those of an independent nation. 18

x x x the true principle to be derived from the recent cases is that the limitation of recognition to
recognition de facto deprives the de facto sovereign of none of the legal attributes of sovereignty.
It seems to follow that the continued recognition of a de jure sovereign as well must be regarded
as a merely political act, without juridical consequences. 19

Sovereign immunity, or crown immunity, is a legal doctrine by which the sovereign

or state cannot commit a legal wrong and is immune from civil suit or criminal
prosecution. It is a principle of international law which exempts a sovereign state
from the jurisdiction of foreign national courts.
Every sovereign state is bound to respect the independence of every other sovereign state, and the
courts of one country will not sit in judgment on the acts of the government of another done
within its own territory. Redress of grievances by reason of such acts must be obtained through
the means open to be availed of by sovereign powers as between themselves. 20

The doctrine originated in an era of personal sovereignty, when kings could theoretically do no
wrong and when the exercise of authority by one sovereign over another indicated hostility or
superiority. With the passing of that era, sovereign immunity has been retained by the courts
chiefly to avoid possible embarrassment to those responsible for the conduct of the nation's
foreign relations.21

The jurisdiction of a nation within its own territory, is exclusive and absolute. It is susceptible of
no limitation not imposed by itself. Any restriction deriving validity from an external source
would imply a diminution of its sovereignty to the extent of that restriction, and an investment of
that sovereignty to the same extent in that power which could impose such restriction. All
exceptions to the full and complete power of a nation within its own territories must be traced up
to the consent of the nation itself.22

When comparing restrictive to absolute theory of foreign sovereign immunity, a state is

immune from the jurisdiction of foreign courts as to its sovereign or public acts but not as to
18 Luther vs. Sagor (Great Britain, Court of Appeals)

19 Haile Selassie v. Cable and Wires, Ltd., (Great Britain, Court of Appeals)

20 Underhill vs Hernandez (U.S. Supreme Court)

21 Victory Transport (U.S. Court of Appeals)

22 The Schooner Exchange (U.S. Supreme Court)

 those that are private or commercial in character. Where a state exercises only those powers that
can also be exercised by private citizens, as distinct from those powers peculiar to sovereigns,
such state is said to be engaging in commercial activity under the restrictive theory. The Act
unmistakable commands to observe the distinction between the purpose of a conduct and its
nature is recognized by the Court.23

An Object is a person or thing in respect of which rights are held and obligations
assumed by the Subject. Thus, it is not directly governed by the rules of
international law. There is no direct enforcement and accountability.
It was submitted that International Law is concerned with the actions of sovereign States and
provides no punishment for individuals; and further, that where the act in question is an act of
State, those who carry it out are not personally responsible, but are protected by the doctrine of
the sovereignty of the State.24

23 Saudi Arabia v. Nelson (U.S. Supreme Court)

24 The Judgment of the Nurembeg Trial