INTRODUCTION TO PUBLIC INTERNATIONAL LAW

(Atty. Mary Ellen S. Cabuhat)

FUNDAMENTAL PRINCIPLES

➢ Pacta Sunt Servanda: Every treaty in force is binding upon the parties to it and must be
performed by them in good faith. (Vienna Convention on the Law of Treaties, Art. 26)

➢ Rebus sic stantibus: where there has been a fundamental change of circumstances, a party may
withdraw from or terminate the treaty in question. This is an exception to the Pacta Sunt
Servanda Rule. (Vienna Convention on the Law of Treaties, Art. 62)

➢ Jus cogens norms: A peremptory norm or jus cogens is a principle of international law considered
so fundamental that it overrides all other sources of international law, including even the Charter
of the United Nations. (Vienna Convention on the Law of Treaties, Art. 53)

➢ Obligations ergo omnes: Obligations ergo omnes as obligations of a State towards the
international community as a whole which are the concern and responsibility of all States and for
whose protection all States have a legal interest. (Barcelona Traction Case, 1970 ICJ Rep. 1; East
Timor Case, 1995 ICJ Rep. 1995 91; Articles on State Responsibility, Art. 48, ¶1 [b]) Examples:
outlawing genocide, slavery, arbitrary detention, racial discrimination, etc.)

CUSTOMARY INTERNATIONAL LAW

➢ Sovereign immunity from suit: The principle that a sovereign is immune from suit is a principle of
customary international law.

A) Absolute Theory on Sovereign Immunity

B) Restrictive Theory on Sovereign Immunity (Philippines adheres to the Restrictive Theory)

➢ A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but
on the logical and practical ground that there can be no legal right as against the authority that
makes the law on which the right depends. (Kawanakoa v. Polyblank, 205 U.S. 349 (1907)

➢ Where the plea of immunity is recognized and affirmed by the executive branch, it is the duty of
the courts to accept this claim so as not to embarrass the executive arm of the government in
conducting the country’s foreign relations (World Health Organization v. Aquino, G.R. No. 35131,
29 November 1972, 48 SCRA 242).

➢ In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and
administrative jurisdiction of the receiving state over any real action relating to private
immovable property situated in the territory of the receiving state which the envoy holds on
behalf of the sending state for the purposes of the mission. If this immunity is provided for a
diplomatic envoy, with all the more reason should immunity be recognized with regard to the
sovereign itself. (The Holy See v. Rosario, Jr., G.R. No. 101949, 1 December 1994, 238 SCRA 524)
➢ The mere entering into a contract by a foreign State with a private party cannot be construed as
the ultimate test of whether or not it is an act jure imperii or jure gestionis. Such act is only the
start of the inquiry. Is the foreign State engaged in the regular conduct of a business? If the foreign
State is not engaged regularly in a business or commercial activity, and in this case it has not been
shown to be so engaged, the particular act or transaction must then be tested by its nature. If the
act is in pursuit of a sovereign activity, or an incident thereof, then it is an act jure imperii. There
is no dispute that the establishment of a diplomatic mission is an act jure imperii. (Republic of
Indonesia v. Vinzon, G.R. No. 154705, 26 June 2003, 405 SCRA 126)

➢ 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. Hence, the
State may enter into contracts with private entities to maintain the premises, furnishings and
equipment of the embassy and the living quarters of its agents and officials. It is therefore clear
that petitioner Republic of Indonesia was acting in pursuit of a sovereign activity when it entered
into a contract with respondent for the upkeep or maintenance of the air conditioning units,
generator sets, electrical facilities, water heaters, and water motor pumps of the Indonesian
Embassy and the official residence of the Indonesian ambassador. (supra, Republic of Indonesia
v. Vinzon, G.R. No. 154705, 26 June 2003, 405 SCRA 126)

➢ The VFA is an agreement which defines the treatment of United States troops and personnel
visiting the Philippines to promote “common security interests” between the US and the
Philippines in the region. It provides for the guidelines to govern such visits of military personnel,
and further defines the rights of the United States and the Philippine government in the matter
of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of
equipment, materials and supplies. As it is, the waiver of State immunity under the VFA pertains
only to criminal jurisdiction and not to special civil actions such as the present petition for
issuance of a Writ of Kalikasan. (Arigo v. Swift, G.R. No. 206510, 16 September 2014, 735 SCRA
102)

RELATIONSHIP BETWEEN NATIONAL (DOMESTIC) LAW AND INTERNATIONAL LAW

➢ The framers of the Constitution were aware that the application of international law in domestic
courts varies from country to country. As Ward N. Ferdinandusse states in his Treatise, Direct
Application of the International Application of International Criminal Law in National Courts,
some countries require legislation whereas others do not. It was not the intention of the framers
of the 1987 Constitution, in adopting Article XVIII, Sec. 25, to require the other contracting State
to convert their system to achieve alignment and parity with ours. It was simply required that the
treaty be recognized as a treaty by the other contracting State. With that, it becomes for both
parties a binding international obligation and the enforcement of that obligation is left to the
normal recourse and processes under international law. (Nicolas v. Romulo, G.R. No. 175888, 11
February 2009, 578 SCRA 438)

RECENT TRENDS IN INTERNATIONAL LAW

(Government of Hong Kong Special Administrative Region v. Olalia, G.R. No. 153675, 19 April 2007,
521 SCRA 470)

➢ The modern trend in public international law is the primacy placed on the worth of the individual
person and the sanctity of human rights. Slowly, the recognition that the individual person may
properly be a subject of international law is now taking root. The vulnerable doctrine that the
subjects of international law are limited only to states was dramatically eroded towards the
second half of the past century.
➢ For one, the Nuremberg and Tokyo trials after World War II resulted in the unprecedented
spectacle of individual defendants for acts characterized as violations of the laws of war, crimes
against peace, and crimes against humanity. Recently, under the Nuremberg principle, Serbian
leaders have been persecuted for war crimes and crimes against humanity committed in the
former Yugoslavia.

➢ These significant events show that the individual person is now a valid subject of international
law. On a more positive note, also after World War II, both international organizations and states
gave recognition and importance to human rights. Thus, on December 10, 1948, the United
Nations General Assembly adopted the Universal Declaration of Human Rights in which the right
to life, liberty and all the other fundamental rights of every person were proclaimed.

➢ While not a treaty, the principles contained in the said Declaration are now recognized as
customarily binding upon the members of the international community. Thus, in Mejoff v.
Director of Prisons this Court, in granting bail to a prospective deportee, held that under the
Constitution, the principles set forth in that Declaration are part of the law of the land. In 1966,
the UN General Assembly also adopted the International Covenant on Civil and Political Rights
which the Philippines signed and ratified. Fundamental among the rights enshrined therein are
the rights of every person to life, liberty, and due process.

➢ The Philippines, along with the other members of the family of nations, committed to uphold the
fundamental human rights as well as value the worth and dignity of every person. This
commitment is enshrined in Section II, Article II of our Constitution which provides: “The State
values the dignity of every human person and guarantees full respect for human rights.”

➢ The Philippines, therefore, has the responsibility of protecting and promoting the right of every
person to liberty and due process, ensuring that those detained or arrested can participate in the
proceedings before a court, to enable it to decide without delay on the legality of the detention
and order their release if justified. In other words, the Philippine authorities are under obligation
to make available to every person under detention such remedies which safeguard their
fundamental right to liberty. These remedies include the right to be admitted to bail.

TREATY DISTINGUISHED FROM EXECUTIVE AGREEMENTS

➢ In Commissioner of Customs v. Eastern Sea Trading (G.R. No. No. 14279, 31 October 1961, 3 SCRA
351), the Supreme Court distinguished treaties from executive agreements in the following
manner:

Treaties Executive Agreements

1) International agreements which involve1) International agreements involving

political issues or changes of national policy &
adjustment of details carrying out well
those involving international arrangements of a
established national policies & traditions &
permanent character take the form of a treaty.
involving arrangements of a more or less
temporary nature take the form of executive
agreements
2) In treaties, formal documents require 2) Executive agreements become binding
ratification through executive action

➢ Power of the Senate to Concur in Treaties: No treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all the Members of the Senate.
➢ The Visiting Forces Agreement (VFA) needed ratification by the Senate because Sec. 25 of Art.
XVII covers not just the presence of foreign military bases but also the presence of foreign military
troops in the country. (Bayan v. Executive Secretary, G.R. No. 138570, 10 October 2000, 342 SCRA)

➢ The Military Bases Agreement (MBA) with the United States subsisting at the time of the
formulation of the 1987 Constitution was not ratified by the U.S. Senate. The phrase under Sec.
25“ recognized as a treaty by the other contracting State” requires that the other contracting
State must go through all the steps needed to make the agreement a treaty under the law of the
foreign State before any such agreement can be recognized by the Philippines as effective.
However, we are bound to accept an official declaration by the U.S. that what is needed to make
their consent a treaty has been satisfied. (Bayan v. Executive Secretary, supra)

➢ The terms “exchange of notes” and “executive agreements” have been used interchangeably,
exchange of notes being considered a form of executive agreement that becomes binding
through executive action. On the other hand, executive agreements concluded by the President
“sometimes take the form of exchange of notes and at other times that of more formal
documents denominated ‘agreements’ or ‘protocols.’ There are no hard and fast rules on the
propriety of entering, on a given subject, into a treaty or an executive agreement as an instrument
of international relations. The primary consideration in the choice of the form of agreement is
the parties’ intent and desire to craft an international agreement in the form they so wish to
further their respective interests. (Bayan Muna v. Romulo, G.R. No. 159618, 1 February 2011, 641
SCRA 244)

➢ The Enhanced Defense Cooperation Agreement (EDCA) need not be submitted to the Senate for
concurrence because it is in the form of a mere executive agreement, not a treaty. Under the
Constitution, the President is empowered to enter into executive agreements on foreign military
bases, troops or facilities if (1) such agreement is not the instrument that allows the entry of such
and (2) if it merely aims to implement an existing law or treaty. (Saguisag v. Ochoa, G.R. No.
212426, 12 January 2016, 779 SCRA 241)

➢ The admission and presence of U.S. military and civilian personnel in Philippine territory are
already allowed under the VFA, the treaty supposedly being implemented by EDCA. What EDCA
has effectively done, in fact, is merely provide the mechanism to identify the locations in which
U.S. personnel may perform allowed activities pursuant to the VFA. As the implementing
agreement, it regulates and limits the presence of U.S. personnel in the country. (Saguisag v.
Ochoa, supra)

DOCTRINE OF INCORPORATION

➢ The phrase “generally accepted principles of international law” refers to 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. (Pharmaceutical and Health Care
Association of the Philippines v. Duque, G.R. No. 173034, 9 October 2007, 535 SCRA 265)

➢ The Constitution ‘adopts the generally accepted principles of international law as part of the law
of the land’ . . . To the extent that the Vienna Convention is a restatement of the generally
accepted principles of international law, it should be a part of the law of the land. (Reyes v.
Bagatsing, G.R. No. 65366, 9 November 1983, 125 SCRA 553)
DOCTRINE OF TRANSFORMATION

➢ Under the 1987 Constitution, international law can become the sphere of domestic law either by
transformation or by incorporation. The transformation method requires that an international
law principle be transformed into domestic law through a constitutional mechanism, such as local
legislation. The incorporation method applies when, by mere constitutional declaration,
international law is deemed to have the force of domestic law (Pharmaceutical and Health Care
Association of the Philippines v. Duque, supra)

INTERNATIONAL HUMAN RIGHTS LAW

➢ International human rights law is the body of international law that seeks the protection of rights
that are inherent to the human person. Human rights are the basic rights and freedoms that
human beings are entitled to. International human rights law seeks to guarantee human rights to
all human beings without discrimination.

➢ Under international human rights law, states are not only to refrain from interfering with the
exercise and enjoyment of human rights, so-called negative obligations, but also to take steps to
promote, protect and fulfill their enjoyment, so-called positive obligations. Positive obligations
require States to take steps to ensure that non-state actors do not impede the enjoyment of
human rights ([Link] human-rights-law).

➢ Human rights are universal and inalienable; indivisible; interdependent and interrelated. They are
universal because everyone is born with and possesses the same rights, regardless of where they
live, their gender or race, or their religious, cultural or ethnic background. Inalienable because
people’s rights can never be taken away. Indivisible and interdependent because all rights –
political, civil, social, cultural and economic – are equal in importance and none can be fully
enjoyed without the others.

INTERNATIONAL BILL OF RIGHTS

➢ Universal Declaration of Human Rights (UNDHR)

The UNDHR represents the universal recognition that basic rights and fundamental freedoms
are inherent to all human beings, inalienable and equally applicable to everyone, and that every one
of us is born free and equal in dignity and rights. Whatever our nationality, place of residence, gender,
national or ethnic origin, colour, religion, language, or any other status, the international community
on December 10, 1948 made a commitment to upholding dignity and justice for all of us. The UDHR is
the foundation of all human rights law. ([Link]
declaration/human-rightslaw/[Link])

➢ International Covenant on Civil and Political Rights (ICCPR)

The ICCPR recognizes the inherent dignity of each individual and undertakes to promote
conditions within states to allow the enjoyment of civil and political rights. Countries that have ratified
the Covenant are obligated “to protect and preserve basic human rights… [and] “compelled to take
administrative, judicial, and legislative measures in order to protect the rights enshrined in the treaty
and to provide an effective remedy.”

• Article 3 ensures the equal right of both men and women to the enjoyment of all civil and
political rights set out in the ICCPR.
• Article 6 – Right to life
• Article 7 – Freedom from torture
 • Article 8 – Right to not be enslaved
• Article 9 – Right to liberty and security of the person
• Article 10 – Rights of detainees
• Article 11 – Right to not be imprisoned merely on the ground of inability to fulfill a
contractual obligation
• Article 12 – Freedom of movement and choice of residence for lawful residents
• Article 13 – Rights of aliens
• Article 14 – Equality before the courts and tribunals. Right to a fair trial
• Article 15 – No one can be guilty of an act of a criminal offence which did not constitute a
criminal offence
• Article 16 – Right to recognition as a person before the law
• Article 17 – Freedom from arbitrary or unlawful interference
• Article 18 – Right to freedom of thought, conscience and religion
• Article 19 – Right to hold opinions without interference; right to freedom of expression
• Article 20 – Propaganda for war shall be prohibited by law
• Article 21 – Right of peaceful assembly
• Article 22 – Right to freedom of association with others
• Article 23 – Right to marry
• Article 24 – Children’s rights
• Article 25 – Right to political participation
• Article 26 – Equality before the law
• Article 27 – Minority protection

➢ International Covenant on Economic, Social and Cultural Right

The ICESCR obliges states parties to undertake steps using the maximum of their available
resources and by all appropriate means to realize economic, social and cultural human rights
([Link]
law/unhumanrightstreaties/[Link])

• Economic: Right to work, just and favorable conditions, right to strike, protection of property
• Social: Right to social security, right of families, mothers (before and after childbirth) and
children to special protection and assistance, right to an adequate standard of living, right to
health
• Cultural: Right to education and right to take part in cultural life

DOMESTIC ENFORCEMENT & IMPLEMENTATION

➢ Petition for Habeas Corpus (Mejoff v. Director of Prisons, 90 Phil. 70 [1951]; Borovsky v.
Commissioner of Immigration, 90 Phil. 107 [1951])
➢ Petition for a Writ of Amparo (Manalo v. Secretary of National Defense, G.R. No. 180906, 7
October 2008, 568 SCRA 1)

• In Manalo v. Secretary of National Defense, the Supreme Court had an opportunity to

expound on the right to the security of a person. First, the right to security of person is
“freedom from fear.”

• In its “whereas” clauses, the Universal Declaration of Human Rights (UDHR) enunciates that
“a world in which human beings shall enjoy freedom of speech and belief and freedom from
fear and want has been proclaimed as the highest aspiration of the common people.”
 • Some scholars postulate that “freedom from fear” is not only an aspirational principle, but
essentially an individual international human right. It is the “right to security of person” as
the word “security” itself means “freedom from fear.”

• Article 3 of the UDHR provides, viz.: Everyone has the right to life, liberty and security of
person. Second, the right to security of person is a guarantee of bodily and psychological
integrity or security. Article III, Section II of the 1987 Constitution guarantees that, as a
general rule, one’s body cannot be searched or invaded without a search warrant. Physical
injuries inflicted in the context of extralegal killings and enforced disappearances constitute
more than a search or invasion of the body. It may constitute dismemberment, physical
disabilities, and painful physical intrusion. As the degree of physical injury increases, the
danger to life itself escalates.

• Notably, in criminal law, physical injuries constitute a crime against persons because they are
an affront to the bodily integrity or security of a person. Third, the right to security of person
is a guarantee of protection of one’s rights by the government. In the context of the writ of
Amparo, this right is built into the guarantees of the right to life and liberty under Article III,
Section 1 of the 1987 Constitution and the right to security of person (as freedom from threat
and guarantee of bodily and psychological integrity) under Article III, Section 2. The right to
security of person in this third sense is a corollary of the policy that the State “guarantees full
respect for human rights” under Article II, Section 11 of the 1987 Constitution.

• As the government is the chief guarantor of order and security, the Constitutional guarantee
of the rights to life, liberty and security of person is rendered ineffective if government does
not afford protection to these rights especially when they are under threat. Protection
includes conducting effective investigations, organization of the government apparatus to
extend protection to victims of extralegal killings or enforced disappearances (or threats
thereof) and/or their families, and bringing offenders to the bar of justice. (Manalo v.
Secretary of National Defense, supra)

➢ Petition for a Writ of Habeas Data

• Remedy available to any person whose right to privacy in life, liberty or security is violated or
threatened by an unlawful act or omission of a public official or employee, or of a private
individual or entity engaged in the gathering, collecting or storing of data or information
regarding the person, family, home and correspondence of the aggrieved party)

➢ Petition for a Writ of Kalikasan

• Climate Justice and Human Rights Case filed by Greenpeace in 2019 – In Re: National Inquiry
on the Impact of Climate Change on the Human Rights of the Filipino People and the
Responsibility therefor, if any, of the “Carbon Majors”)

➢ Applicable Laws
• RA 9745 (Anti-Torture Act of 2009)
• RA 9851 (Philippine Act on Crimes Against International Humanitarian Law, Genocide, and
Other Crimes Against Humanity)
• RA 10368 (Human Rights Victims Reparation and Recognition Act)
• RA 7438 (Rights of Persons under Custodial Investigation)
• RA 101745 (Cybercrime Prevention Act)
• Convention on the Elimination of All Forms of Discrimination Against Women
• Magna Carta of Women
• Anti-Violence Against Women and their Children Law
 • Anti-Trafficking Law
• Anti-Rape Law; Assistance to Rape Victims Law
• Anti-Mail Order Bride Law
• Anti-Bullying Act
• Laws Protecting Persons with Disabilities
• Magna Carta on Persons with Disabilities
• Anti-Child Pornography Law
• Migrant Workers Act
• Indigenous Peoples’ Rights Act (IPRA)
• Rep. Act No. 10353 (An Act Defining and Penalizing Enforced or Involuntary Disappearances)
• Senior Citizens’ Law
• Generics Act
• Labor Code

INTERNATIONAL HUMAN RIGHTS ISSUES IN THE POST-PANDEMIC WORLD

➢ Weaponization of the Internet: Propagation of Fake News

➢ Human Rights and Technology

“Data rights are human rights”
“Privacy is a human right”
“The right to a private life”
“The same rights that people have offline must also be protected online”
“The emergence of Artificial Intelligence”

➢ Human Rights Violations in Cyberspace

ICCPR, Art. 19 The United Nations Human Rights Council (UNHRC) has stated that the
freedoms of expression and information under Article 19(2) of the ICCPR include the freedom to
receive and communicate information, ideas and opinions through the Internet (UNHRC General
Comment No. 34, note 4, ¶12, on Freedom of Expression on the Internet)

• Hate speech
• Privacy
• Cyber bullying
• Cyber harassment
• Cyber stalking
• Cyber security breaches
• Cyber racism