Allied Political Laws Reviewer 2012

USC SCHOOL OF LAW AND GOVERNANCE
ALLIED POLITICAL LAWS review 2012

PUBLIC INTERNATIONAL LAW ELECTION LAWS PUBLIC OFFICERS
Sources: Slides and Discussion of Atty. DBL.
PUBLIC INTERNATIONAL LAW Public International Law (PIL) Definition: rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical (Akehurst, citing Restatement [Third] by the American Law Institute of Foreign Relations Law of the United States) Subjects of International Law Subjects: those that enjoy international legal personality and being capable of possessing international rights and duties, including the right to bring international claims. Primarily: STATES Secondarily: International Organizations (e.g. UN, WTO), individuals (protected persons of IHL, insurgents and national liberation movements, minorities), juridical persons (multinational companies), and NGOs (e.g. ICRC, Greenpeace, Amnesty Intl.) States, still primarily the subjects of PIL International law is still predominantly made and implemented by states; International Organizations are still dependent to a large extent on the willingness of states to support them; Only states can be members of the UN; Only states are entitled to call upon the UN Security Council in case of threat to peace and security; Only states may appear contentious proceedings before the ICJ; Only states can present a claim on behalf of a national who has been injured by another state, if there is no treaty to the contrary; An individual has no individual rights under customary international law and is dependent on the political discretion of the home state Basic Characteristics of PIL PIL is a horizontal legal system; PIL lacks a supreme authority; Self-help, unlike in domestic sphere applying domestic law, is normally the means by which states enforce their rights: e. g. retorsion (a lawful act designed to injure the wrongdoing of another state), reprisal (act that is normally illegal but rendered legal by a prior illegal act committed by another state) SOURCES (Formal or Legal) OF PIL Art. 38 (1), Statute of ICJ: Primary: (a) international conventions (b) international custom (c) general principles of law Subsidiary: (d) judicial decisions and teachings of most highly qualified publicists International Conventions/Treaties Whether general or particular and establishing rules expressly recognized by the contesting States; The term convention includes (and actually means) treaty Other terms: agreement, pact, understanding, protocol, charter, statute, act, covenant, declaration, engagement, arrangement, accord, regulation and provision. Law-making treaties vs. contract treaties
FOR DIAMOND BATCH USE
Custom As evidence of a general practice accepted as law; Two elements: (a) Objective Element [general practice] (b) Subjective Element [accepted as law(opinio juris)] General Principles of Law Recognized by civilized (peace-loving) nations; Aimed at providing solutions to controversies where treaty law or customary law provides no guidance; Law refers to both international law and municipal law (common municipal law) Examples: estoppel, good faith, exhaustion of local remedies, prescription, etc. Judicial Decisions and Publicists Subsidiary means only Subject to Article 59 of the Statute of the ICJ (the decision of the Court has no binding force except between the parties and in respect of that particular case); in other words, there is no doctrine of stare decisis in ICJ decisions; ICJ decisions are independent of judicial decisions of other newly created tribunals such as the ICC, etc. for lack of formal relationship between these tribunals. Other Possible Sources of PIL: Acts of International Organizations (e.g. UN and its Organs like GE, IMF, ICAA) Soft Law (guidelines of conduct which are neither strictly binding norms of law nor completely irrelevant political maxims) Equity (Justice) See: -The River Meuse Case (Netherlands vs. Belgium, PCIJ Reports, 1937) -Ex aequo et bono Art. 38 (2), ICJ Statute Ex aequo et bono means court will apply what is good and equitable. Hierarchy of the Sources of PIL In the travaux preparatoires (preparatory work) of Art. 38, it was suggested that the sources as listed should indicate hierarchy of sources but it was not carried out. There was only the agreement to categorize these sources as either primary (3) or subsidiary (2) Hence, except for jus cogens (peremptory norms of general international law), one source is not to be treated as always superior to the other. The sources of international law are not therefore arranged in a strict hierarchical order. Guidelines in determining which source of PIL prevails over the other: Jus Cogens norms always prevail (see: Art. 53 of the Convention on the Law of Treaties, 1969) Lex posterior derogat priori Lex posterior generalis non derogat priori speciali Lex specialis derogat legi generali Consider Desuetude Bernhardt (1992): If there is a clear conflict, treaties prevail over custom and custom prevails over general principles and the subsidiary sources Jus Cogens Art. 53, Convention on the Law of Treaties (Vienna, 1969): A treaty is void if it conflicts with a peremptory norm of general international law, a norm 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
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subsequent norm of general international law having the same character. Examples: prohibition on the use of force, of genocide, slavery, gross violation of the right of people to self-determination, racial discrimination, and torture. Erga Omnes obligations of a state to the international community (ex. Not to commit/fail to punish International crimes; not to violate peoples right to self-determination)
Governed by the 1982 UNCLOS III (UNCLOS I-1958) Basic Zones: 1. Internal Waters; 2. Territorial Sea, 3. Contiguous Zone, 4. Exclusive Economic Zone and 5. High Seas
International Law and Municipal Law Which law prevails in case of conflict? -Theories: Dualism & Monism Monism Intl and mun. legal systems are fundamentally part of one legal order. this view considers intl law to be superior with mun. law being a mere subset of intl law Dualist View - Intl Law and Mun. Law are separate systems. How do rules of international law take effect in domestic legal system? Theories: Incorporation & Transformation Incorporation norms of intl law are deemed part of national law Transportation defines the requisite act which must be fulfilled before they become part of national law What is the status of PIL in national legal systems? -UK Practice (on treaties and customary IL) -US Practice (on treaties and customary IL) -Dutch Practice (on treaties and decisions of intl. courts -Philippine Practice (on treaties and GAPIL) States and Governments Elements of State: 1. permanent population 2. defined territory 3. government 4. capacity to enter into relations with other States (Art. 1, 1933 Montevideo Convention on the Rights and Duties of States) Territory Island of Palmas Case (Netherlands vs. US, Arbitrator Max Huber of PCIJ, 1928) on Territorial Sovereignty; See again North Sea Continental Shelf Cases on whether definition of borders is a requirement; Extent of and jurisdiction over Territory: 1. Modes of Acquiring Territory a) Cession TRANSFER of territory usuall by a treaty from one state to another. Note: if there were defects in the ceding states title of the state to which territory is ceded will be vitiated by the same defects applying nemo dat quod non habet )see Palmas Case). b) Occupation acquisition of terra nullius, that is territory which immediately before the acquisition, belonged to no state. Note: a territory is terra nullius either because it reall did not belong to any state or may have been abandoned by previous soverign. there is abandonment if there is failure to exercise authority. c) Discovery of territory is not sufficient to acquire a terra nullius territory as it merely gives inchoate title that is an option to occupy the territory within a reasonable time, during which time other states were not allowed to occupy territory. Thus occupation requires, effective control amd intention and will to act as sovereign. d) Conquest now illegal. 2. Law of the Sea (1982 UNCLOS)
Internal Waters include ports, harbors, rivers, lakes and canals the coastal state can prohibit entry into its internal waters by foreign ships, except for ships in distress when already within internal waters, different legal questions arise depending on the kind of vessel that is within the internal water: merchant ships, warships, other foreign non-commercial ships. Baseline: (Low Water Mark Method vs Straight Baseline Method) the latter use for archipelagic state; we imagine a straight line for the former; we compute from low water mark; we dont imagine a straight line Territorial Sea not exceeding 12 nm from the baseline baseline: 1. normal baseline (low water mark method and 2. straight baseline method limitation: right of innocent passage: by foreignshipps Contiguous Zone 24nm from the baseline coastal state is limited to protective jurisdiction only, that is to prevent infringement of its customs, fiscal, immigration or sanitary regulations Exclusive Economic Zone 200 nm from baseline coastal state has sovereign rights over all the economic resources of the sea, seabed, and subsoil which includes not only fish but also minerals beneath the seabed High Seas beyond 200 nm from the baseline as a rule, ships in high sease are government only by. I. international law II. law of flag state - Flag of the State: refers to the nationality of the flag, which is determined by the place of registration 3. Airspace COMMON HERITAGE OF MANKIND PRINCIPLE aPPlicable to the air space, outer space and even the high seas, the term means that the exploration and use or utilization of resources in areas beyond national jurisdiction shall be the province of all mankind and shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic of scientific Criminal Jurisdiction, etc.; Extradition
4.
HUMAN RIGHTS OF LAW the Three Generations or Categories A: UN UNIVERSAL DECLARATION OF HUMAN RIGHTS 1. Civil and Political Rights 2. Economic, Social and Cultural Rights B. Opinion of Publicist 3. Right to Peace Self-Determinations, common heritage of mankind principle, environment, development, minority rights. Government
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-Effective Control (sovereignty, not legitimacy), required; mere existence of government is not sufficient; -Kinds of control: Internal and External -The case of Palestine (State of Palestine as declared in 1988 by PLO) -However, in case of temporary deprivation of effective control, the state does not cease to exist. Capacity to enter into relations with other states Article 3, Montevideo Convention: The political existence of the State is independent of recognition by the other States. Even before recognition, the State has the right to defend its integrity and independence. Limited Capacity to enter into international relations does not prevent the existence of a State, like in the cases of Protectorates, Trusteeships and Associated States. Recognition of State and Government o Recognition will have legal effects in both international law and domestic law; o Recognition of State must be distinguished from Recognition of Government; o Recognition of State is suggested to be an additional requisite for statehood along with Sufficient Degree of Civilization; Recognition of State -Theories on Legal Effects of Recognition of State: (1) Constitutive - (minority view) posits that political act of recognition is a precondition to the existence of legal rights of a state. (2) Declaratory (prevailing view) posits that recognition is a mere declaration or acknowledgment of an existing state of law and fact, legal personality having been previously conferred by operation of law. -Article 3 of Montevideo Convention acknowledges Declaratory Theory Recognition of Government Doctrines in Recognition of Government: 1. Tobar or Wilson Doctrine precludes recognition of government established by revolution, civil war, cuop detat or other forms of internal violence until freely elected representatives of the people have organized a constitutional government 2. Stimson Doctrine precludes recognition of any government as a result of external agression 3. Estrada Doctrine - dealng or not dealing with the government established through a political upheaval is not a judgment on the legitimacy of the said government. 5. 6. De jure Recognition vs. De facto Recognition; Traditional Effects of Recognition But, the European Community stipulated on certain common guidelines on recognition of governments.
Diplomatic Immunity -Immunity from Jurisdiction of courts -Other privileges and immunities Consular Immunity Immunities of International Organizations Waiver of Immunity
Treaties Read: 1969 Vienna Convention on the Law of Treaties (VCLT) [took effect on Jan. 27, 1980] VCLT applies only to treaties after entry into force (Article 4) The travaux preparatoires was carried out by the International Law Commission (ILC), so its commentary is one of the best sources of interpretation of the VCLT A treaty per VCLT is an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments, and whatever its particular designation. Conclusion/Entry Into Force of Treaties A. Adoption of the Text of a Treaty: Article 9: 1. takes place by the consent of all the States, or 2. in case of treaty at an international conference, it takes place by the vote of 2/3 of the States present and voting, unless by the same majority they shall decide to apply a different rule. B. Consent to be bound: Article 11: Consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed. -Ratification occurs only when instruments of ratification are exchanged between the contracting states or are deposited with the depositary. (Arts. 2 (1)(b) and 16.) C. Entry Into Force -As a rule: as soon as all negotiating states have expressed their consent to be bound by it, unless otherwise stipulated. - Article 18: A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed. D. Reservation -Article (2)(1)(d): defines reservation as a unilateral statement.. made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to the State. -Allowed only when the reservation is accepted by all the states which had signed (not necessarily ratified) or adhered to the treaty. Case: Reservations to the Genocide Convention Case (ICJ Advisory Opinion, 1951) E. Registration: Article 102 (1) of the UN Charter: every treaty entered into by any Member of the UN after the Charter comes into force shall as soon as possible be registered with the Secretariat and published by it. Effect of Non-registration: Art. 102 (2), UN Charter
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Jurisdiction Forms: over Persons, Property, or Events/Acts Case: -Nottebohm Case (Liechtenstein vs. Guatemala, ICJ,1955) on Nationality Theory Criminal Jurisdiction of national courts -Territorial Principle (see: SS Lotus Case) -Nationality Principle -Protective Principle -Universality Principle Extradition and Asylum Immunity from Jurisdiction Sovereign or State Immunity -Doctrine of Qualified Immunity -The Act of State Doctrine

Municipal Law and Competence to Conclude Treaties Article 46, VCLT: 1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance. 2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith. Authorized Representative of the State Article 7, VCLT: 1. A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if: (a) he produces appropriate full powers; or (b) it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers. 2. In virtue of their functions and without having to produce full powers, the following are considered as representing their State: (a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty; (b) heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited; (c) representatives accredited by States to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ. Defective Treaties Head of State disregards constitutional requirement for ratification (theory) vs. Art. 46 Unauthorized representative Ultra Vires (Art. 47), when restriction had been made known the the other party Error (Art. 48) Fraud (Art. 49) Corruption of Representative (Art. 50) Coercion of Representative (Art. 51) Coercion by the threat or use of force (Art. 52) Contravenes Jus Cogens (Art. 53) Termination of Treaties Pacta Sunt Servanda (Art. 26) Grounds for Termination, Denunciation, Withdrawal, or Suspension: (1) Application of the Treaty (Art. 42) (2) Application of the VCLT (Art. 42) (3) Consent of all the parties, e.g.Desuetude (Art. 54) (4) Discharge through Material Breach (Art. 60) (5) Impossibility of Performance (Art. 61) (6) Rebus Sic Stantibus (Art. 62) (7) Emergence of new Jus Cogens (Art. 64) (8) Outbreak of War (for bilateral treaties) State Succession vs. Government Succession In State succession, all political laws are abrogated unless retained by affirmative act of the new sovereign while non-political laws continue; The successor State inherits all the rights, but not the obligations of predecessor State;
The successor Government inherits all the rights of the predecessor Government, but not necessarily the obligations.
The Law of the Sea 1982 UNCLOS Baseline (Low-water mark Method vs. Straight Baseline Method) Territorial Sea vs. Contiguous Zone vs. Exclusive Economic Zone State Responsibility Internationally wrongful act Draft Article 3 of the ILC: (a) action or omission attributable to the State under International Law; (b) breach of international obligation of State. Scope of Liability: (1) liable for reparation or compensation, and (2) may be the object of lawful countermeasures by the victim (e.g. reprisals or retortion) Imputability Doctrine (Principle of Attribution) A State is liable only for its own acts and omissions, and in this context, the State is identified with its governmental organs and apparatus, not with the population (nor with private [vs. ultra vires] acts of government agents). Cf: ILC Draft Articles on State Responsibility Case: Youmans Claim (U.S. vs. Mexico, General Claims Commission, 1926) Facts: Mexico , through a Mayor of the town, sent.. (see case) Held: Mexico was held liable because the troops had been acting as an organized military unit, under the command of an officer. When State becomes liable for Acts of Private Individuals: 1. Encouraging individuals to attack foreigners 2. Failing to take reasonable care (due diligence) to protect foreigners 3. Obvious failure to punish individuals 4. Failure to provide injured foreigner opportunity of obtaining compensation 5. Obtaining some benefit from the individuals act 6. Express Ratification of the individuals act. Case: Tehran Hostages Case (United States vs. Iran, ICJ 1980) FACTS: hundred of iranian students and demonstrators took the US Embassy in Tehran by force in protest at the admission of deposed leader Shah Reza Pahlevi of Iran into US for medical treatment. The Iraninan Security forces did nothing to either prevent this pr address the situation afterwards. the demonstrators seized archives and documents held. Held: Iran violated provisions of Vienna Convention on Diplomatic and Consular Relations as it fail to take appropriate steps to protection. Minimum International Standard Doctrine: While it is true that when a person resides in a foreign country, he is deemed to accept the laws and customs of that country, such that his national state cannot base a claim on the fact that he would have been better treated in his home country, he may however make such a claim if the foreign countrys laws or behavior fall below the minimum international standard. Preliminary objections: 1. Non-compliance with rules concerning nationality of claims. [see: Nottebohm and Barcelona Traction cases]; 2. Failure to exhaust local remedies (ILC Draft Article 22) [see: Interhandel Case (Switzerland vs. U.S., ICJ Report, 1959)] 3. Waiver by the State (vs. Calvo Clause)
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4. Unreasonable Delay and Improper Behaviour of injured alien International Wars, Civil Wars & Right to SelfDetermination: Jus Ad Bellum Jus Ad Bellum: Rules Governing the Resort to Armed Conflict (Lawful War). Jus In Bello: Rules Governing the Actual Conduct of Armed Conflict (Lawful Acts in times of War). [International Humanitarian Law (IHL)] Means of Waging War and Criminal Responsibility: Jus In Bello International Humanitarian Law (IHL) governs the laws of armed conflict or law of war. It primarily seeks to protect civilian population and objects. It covers international or noninternational armed conflict, but not mere internal disturbances. E.g. The 1949 Geneva Conventions and Additional Protocols prohibit the attack on civilian population or object as such during armed conflict International Criminal Court (ICC), governed by the Rome Statute (July 1, 2002) has jurisdiction over the following crimes: 1. Genocide 2. Crimes Against Humanity 3. War Crimes 4. Crime of Aggression United Nations (UN) Statute of the International Court of Justice Jurisdiction: -Contentious Cases and Advisory Opinions involving interpretation of treaties, any question of international law, breaches of international law -Only States, including non-members of the N can be parties -Jurisdiction is based on consent [Optional Jurisdiction Clause] -No stare decisis in ICJ Decisions
E.G. correction of manifest errors is purely admin (includes mere mathematical calculation), hence, en banc may decide. But not in SANDOVAL CASE (where the issue was not the correction of manifest error but foremost whether or not there was manifest error) where the Supreme Court said it requires adjudicative function, hence, must be decided in division by the COMELEC. COMELEC & HRET/SET LIMKAICHONG VS. COMELEC (2009): Once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of Rep., the jurisdiction of the HRET begins over election contests relating to his election, returns, and qualifications, and mere allegation as to the invalidity of her proclamation does not divest the Electoral Tribunal of its jurisdiction. Limkaichong (2009) vs.Codilla (2002) IN LIMKAICHONG, THE SC DID NOT FIND THE PROCLAMATION VOID AS THE ORDER DISQUALIFYING THE WINNING CANDIDATE WAS NOT YET FINAL AND THE PROCLAMATION WAS LEGALLY AND PROCEDURALLY CALLED FOR. IN CODILLA, PROCEDURAL LAPSES THAT RESULTED TO DENIAL OF DUE PROCESS RENDERED THE PROCLAMATION OF THE WINNING CANDIDATE VOID, THUS THE COMELEC RETAINED JURISDICTION DESPITE THE PROCLAMATION IN CODILLA. Pre-proclamation Controversies in National Positions: General Rule: NO PRE-PROC CONTROVERSIES Exceptions: 1) Correction of manifest errors; 2) Questions affecting the composition or proceeding of the board of canvassers; and 3) Determination of the authenticity and due execution of certificates of canvass (see: R.A.9369 and Banat vs. Comelec, August, 2009) Exclusive power to investigate and prosecute election offenses: NOT A CONSTITUTIONAL REQUIREMENT! HENCE, THE COMELEC MAY, BY LAW, EXERCISE CONCURRENT JURISDICTION WITH OTHER PROSECUTORY ARMS OF THE GOVERNMENT IN THE INVESTIGATION AND PROSECUTION OF ELECTION OFFENSES AS PROVIDED FOR IN R.A.9369 (See: Banat vs. Comelec, August 2009) Effect of Registration and Voting in Residence -Will registration of a voter in a place other than his residence of origin result to abandonment of residence? (No, according to Perez vs. Comelec, 317 SCRA 641) -Will the act of voting by a voter in a place other than his residence of origin result to abandonment of residence? (Not necessarily, according to Domino vs. Comelec, 310 SCRA 641) What about Reacquisition of lost citizenship under R.A. 9225? R.A. 9225 only provides for re-acquisition of citizenship, not residence. Thus, the candidate must still show overt acts constituting reacquisition of residency in the Philippines (e.g. application of Philippine Passport, paying taxes, etc.) [Japzon vs. COMELEC, Jan. 19, 2009]
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ELECTION LAWS Jurisdiction of the COMELEC ELECTION CONTESTS
Original: Regional, Provincial, City Official Appellate: Mun. (RTC); Barangay (MTC) [Note: Decision is Final and Executory, hence, remedy is Certiorari (Rule 64; 30 days) Comelec does not exercise supervision over SK elections. It is with DILG. Comelec only gives technical assistance to DILG in the conduct of SK elections. (Alunan case) Comelec can issue writs of Certiorari, Prohibition, and Mandamus but only in the exercise of its exclusive appellate jurisdiction. This power is concurrent with the SC, so, the tribunal that takes jurisdiction first shall exercise exclusive jurisdiction over the case. But, note now of SCs mandate to observer hierarchy of courts. (Relampagos case) IN DIVISION FIRST, BEFORE EN BANC RULE Applicable only when COMELEC is asked to exercise adjudicatory function (QJ). Hence, when exercising purely admin function, need not be in division.

Effect of Filing of Certificate of Candidacy NOT DEEMED RESIGNED; ONLY APPOINTIVE OFFICIAL WHO FILED CERTIFICATE OF CANDIDACY WILL BE DEEMED TO HAVE RESIGNED! Sec. 13, R.A. 9369: Any person holding a public appointive office or position, including active members of the armed forces, and officers, and employees in government-owned or-controlled corporations, shall be considered ipso factor resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certification of candidacy. Quinto vs. Comelec (2009; 2010) 2009: The Supreme Court ruled that the differential treatment of persons holding appointive offices as opposed to those holding elective ones is not germane to the purposes of the law, and thus violated the equal protection clause. 2010: THERE ARE SUBSTANTIAL DISTINCTIONS BETWEEN ELECTIVE AND APPOINTIVE OFFICIALS. Quinto vs. Comelec (2010): Substantial distinctions exist between elective and appointive officials. The former occupy their office by virtue of the mandate of the electorate while the latter by virtue of their designation thereto by an appointing authority. The former are obviously engaged in partisan political activities while the latter are strictly prohibited from engaging in partisan political activity. R.A. 9369, in relation to Infomercials The Commission shall set the deadline for the filing of certificate of candidacy or petition of registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall effect only upon that start of the aforesaid campaign period. Penera vs. Comelec (Sept. 2009) A person, after filing his/her COC but prior to his/her becoming a candidate (thus, prior to the start of the campaign period), can already commit the acts described under Section 79(b) of the Omnibus Election Code as election campaign or partisan political activity. However, only after said person officially becomes a candidate, at the beginning of the campaign period, can said acts be given effect as premature campaigning under Section 80 of the Omnibus Election Code. Only after said person officially becomes a candidate, at the start of the campaign period, can his/her disqualification be sought for acts constituting premature campaigning. SUBSTITUTE CANDIDATE IF THE OFFICIAL CANDIDATE DIES, WITHDRAWS OR IS DISQUALIFIED FOR ANY CAUSE, ANY PERSON BELONGING TO SAME PARTY AND CERTIFIED BY SAID PARTY MAY REPLACE THE CANDIDATE. WHAT IF INDEPENDENT CANDIDATE? RULLODA vs. (COMELEC) 2003 Jan 20 (En Banc) Contrary to respondents claim, the absence of a specific provision governing substitution of candidates in barangay elections can not be inferred as a prohibition against said
substitution. Such a restrictive construction cannot be read into the law where the same is not written. Indeed, there is more reason to allow the substitution of candidates where no political parties are involved than when political considerations or party affiliations reign, a fact that must have been subsumed by law. [Note: BARANGAY ELECTION IS NON-PARTISAN] LONE CANDIDATE LAW Upon the expiration of the deadline for the filing of the certificates of candidacy in a special election called to fill a vacancy in an elective position other than for President and Vice President, when there is only one (1) qualified candidate for such position, the lone candidate shall be proclaimed elected to the position by proper proclaiming body of the Commission on Elections without holding the special election upon certification by the Commission on Elections that he is the only candidate for the office and is thereby deemed elected. MULTIPLE FILING OF CERTIFICATES OF CANDIDACY IF HE FILES CERT OF CANDIDACY FOR MORE THAN ONE OFFICE, HE SHALL NOT BE ELIGIBLE FOR ANY OF THEM. BUT, BEFORE EXPIRATION OF THE PERIOD FOR FILING OF CERTIFICATE OF CANDIDACY, THE PERSON WHO HAS FILED MORE THAN ONE CERT OF CANDIDACY MAY DECLARE UNDER OATH THE OFFICE FOR WHICH HE DESIRES TO BE ELIGIBLE. MISREPRESENTATION IN CERTIFICATE OF CANDIDACY 1. MUST BE MATERIAL: MUST REFER ONLY TO MATTERS THAT AFFECT ELEGIBILITY OR QUALIFICATIONS! 2. THERE MUST BE DELIBERATE ATTEMPT MISLEAD, MISINFORM OR HIDE A FACT. Effect of Proclamation on Pre-Proc A pre-proclamation case before the COMELEC is no longer viable; the more appropriate remedies being a regular Election protest or a petition for Quo Warranto. Exceptions: 1) the BOC was improperly constituted; (2) quo warranto was not the proper remedy; (3) what was filed was not really a petition for quo warranto or an election protest but a petition to annul the proclamation; (4) the filing of a quo warranto petition or an election protest was expressly made without prejudice to the pre-proclamtion controversy or was made ad cautelam, and (5) the proclamation was null and void. Failure of Elections; 2 Conditions (1) No voting has been held (or, held but suspended and did not resume or resulted in failure to elect) in any precinct or precincts due to fraud, force majeure, violence or terrorism; and (2) The votes not cast therein are sufficient to affect the results of the election. The cause of such failure may arise before or after the casting of votes or on the day of the election. [ASKED IN THE BAR MANY TIMES!] Failure of Elections; to be strictly construed! The power to declare a failure of elections should be exercised with utmost care and only under circumstances which demonstrate beyond doubt that the disregard of the law has been so fundamental or so persistent and continuous that it is impossible to distinguish what votes are lawful and what are unlawful, or to arrive at any certain result whatsoever; or that the great body of voters have been
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prevented by violence, intimidation and threats from exercising their franchise. There is failure of elections only when the will of the electorate has been muted and cannot be ascertained. If the will of the people is determinable, the same must as far as possible be respected. Opening of Ballots in Election Contest In election contests, is the tribunal required to open the ballot boxes? ANS: Yes, for as long as the controversy can only be resolved by the perusal, examination, or counting of ballots as evidence, especially when there is averment of fraud or irregularity affecting the ballots. Effect of the death of the protestant during the pendency of an election contest: Considering that elec tion contest is imbued with public interest, unlike in an ordinary suit, the death of the protestant does not extinguish an election contest. The candidate who is likely to succeed had the protestant been declared the winner, like a vice-elect, will be the real party in interest. (Poe vs. GMA) Execution pending appeal allowed in election cases It is allowed if there are valid and special reasons to grant the motion for execution pending appeal, and provided that the motion for execution is filed within the period to appeal. Besides, the pendency of an election contest is not a sufficient basis to enjoin one who has been proclaimed as duly elected from assuming office as required of him by law, otherwise the efficiency of public administration would be impaired. Best evidence in election contest cases Where what is involved is the correctness of the number of votes of each candidate, the best and most conclusive evidence are the ballots themselves. But, where the ballots cannot be produced or are not available, the election returns would be the best evidence, as they are used in the canvass of votes. Second Placer Rule There is no law that allows a second placer to be declared the candidate elect if the proclaimed winner is adjudged disqualified or ineligible. [ASKED IN THE BAR MANY TIMES!] Will of the Electorate Rule Mandatory provisions requiring certain steps before elections will be construed as directory after the elections, to give effect to the will of the electorate. Technicalities and procedural niceties in election cases should not be made to stand in the way of the true will of the electorate. Laws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections. LAW ON PUBLIC OFFICERS Characteristics of PUBLIC OFFICE: Delegation of sovereign functions Creation by law and not by contract An oath Salary/Compensation (but, incl. honorary) Continuance of the position Scope of duties Designation of the position as an office. Public Office, not a Property! "Public office is personal to the incumbent and is not a property which passes to his heirs" De la Victoria vs. Comelec, 199 SCRA 561 [1991]). The heirs may no longer prosecute the deceased protestee's counterclaim for
damages against the protestant for that was extinguished when death terminated his right to occupy the contested office. Public Office, not a Property; Exception A public office is not property within the sense of the constitutional guaranties of due process of law, but is a public trust or agency; However, an incumbents right to office may be considered property within the protection of due process in controversies relating to the question as to who of two (2) persons is entitled thereto. (Libanan vs. Sandiganbayan [1994]) De Facto Officer vs. Usurper A de facto officer has color of right or title to the office or has apparent authority to hold the office and has done so in good faith, while a usurper has neither lawful title nor color of right or title to the office; the act of a de facto officer is valid as if it was done by a de jure officer but that of a usurper is absolutely null and void; the former may be removed through a direct proceeding only. Salary of De Facto Officer A de facto public officer cannot be made to reimburse funds disbursed during his term of office because his acts are as valid as those of a de jure officer. Moreover, as a de facto officer, he is entitled to emoluments for actual services rendered. [Sampayan vs. Daza] But, the incumbent can recover! An incumbent of a public office may recover from a de facto officer the salary received by the latter during the time of his wrongful tenure, even though he (the de facto officer) occupied the office in good faith and under color of title. A de facto officer, not having a good title, takes the salaries at his risk and must, therefore, account to the de jure officer for whatever salary he received during the period of his wrongful tenure. The Supreme Court has allowed a de facto officer to receive emoluments for actual services rendered but only when there is no de jure officer. Who can recover and from whom? -As a rule, the de jure officer cannot recover from the government, but only from the de facto officer, the salary it had paid to the latter. But, he can recover the salary from the government or the de facto officer, if the government continues to pay the de facto officer even after notice of adjudication of the title to the de jure officer, the amount so paid after the adjudication and notice. (Mechem) Salary of officer whose appointment is later disapproved by the CSC: -If the basis for disapproval is not violation of civil service law, say lack of qualification, the appointee is entitled to a salary. -However, if the disapproval by the CSC is on the ground that the appointment was made in violation of civil service law, the appointing authority shall be personally held liable for the salary of the appointee. (Nazareno vs. City of Dumaguete, June 2009) WHO MAY PRESCRIBE QUALIFICATIONS: CONSTITUTION CONGRESS, BUT: CONGRESS CANNOT IMPOSE CONDITIONS OF ELIGIBILITY INCONSISTENT WITH CONSTITUTIONAL PROVISIONS;
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QUALIFICATION MUST BE GERMANE TO THE POSITION (REASONABLE RELATION RULE) CANNOT PRESCRIBE QUALIFICATIONS SO DETAILED AS TO AMOUNT TO MAKING AN APPOINTMENT IN USURPATION OF EXECUTIVE POWER; CANNOT PRESCRIBE QUALIFICATIONS IN ADDITION TO THOSE PRESCRIBED EXCLUSIVELY BY THE CONSTITUTION DELEGATE OF CONGRESS SJS vs. PDEA (2008) The Congress cannot validly amend or otherwise modify the qualification standards for Senators, as it cannot disregard, evade, or weaken the force of a constitutional mandate, or alter or enlarge the Constitution. Accordingly, Sec. 36(g) of RA 9165 [Mandatory Drug Test] should be, as it is hereby declared as, unconstitutional. Frivaldo Doctrine Unlike residence and age qualifications, the qualification of citizenship for local elective officials under the Local Government Code of 1991 must only be possessed at the time the candidate becomes elective official by his valid proclamation and at the start of his term. (Frivaldo vs. Comelec [1996) Is property qualification valid? Maquera vs. Borra (1965): Property qualification is inconsistent with the essence and nature of a republican system ordained in the Constitution and the principles of social justice underlying the same. This implies necessarily that the right to vote and to be voted for shall not be dependent upon wealth of the individual concerned. Social justice presupposes equal opportunity for all. May a person be compelled to accept an office? Generally, no. But an elected official who refuses without valid motive to be sworn in shall be held criminally liable under Sec. 334 of the RPC. Exception: Compulsory military and civil service under Sec. 4., Art. II of the 1987 Constitution. Effects of PARDON: On right to hold public office RPC: Art. 36. Pardon; its effect. A pardon shall not work the restoration of the right to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon. Monsanto vs. Factoran: The pardon granted to petitioner has resulted in removing her disqualification from holding public employment but it cannot go beyond that. To regain her former post as assistant city treasurer, she must re-apply and undergo the usual procedure required for a new appointment. Exception (Clemency in Administrative case): When a person is given pardon because he did not truly commit the offense, the pardon relieves the party from all punitive consequences of his criminal act, thereby restoring to him his clean name, good reputation and unstained character prior to the finding of guilt. This signifies that petitioner need no longer apply to be reinstated to his former employment; he is restored to his office ipso facto upon the issuance of the clemency. Petitioner's automatic reinstatement to the government service entitles him to back wages. Effects of PARDON: On Benefits attached to the office A pardon looks to the future. It is not retrospective. It affords no relief for what has been suffered by the offender. It does not impose upon the government any obligation to make reparation for what has been suffered. This would
explain why petitioner, though pardoned, cannot be entitled to receive backpay for lost earnings and benefits. (Monsanto vs. Factoran). Appointing Authoritys Discretion The appointing authority is given ample discretion in the selection and appointment of qualified persons to vacant positions, provided that the exercise thereof is in good faith for the advancement of the employer's interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements and provided further that such prerogatives are not exercised in a malicious, harsh, oppressive, vindictive or wanton manner, or out of malice or spite. Role of CSC in Appointment: Attestation only Civil Service Commission has no power of appointment except over its own personnel. Neither does it have the authority to review the appointments made by other offices except only to ascertain if the appointee possesses the required qualifications. The determination of who among aspirants with the minimum statutory qualifications should be preferred belongs to the appointing authority and not the Civil Service Commission. It cannot disallow an appointment because it believes another person is better qualified and much less can it direct the appointment of its own choice. Next-in-Rank Rule One who is next-in-rank is entitled to preferential consideration for promotion to the higher vacancy but it does not necessarily follow that he and no one else can be appointed. The rule neither grants a vested right to the holder nor imposes a ministerial duty on the appointing authority to promote such person to the next higher position. Thus, an officer lower in rank but of superior qualification may be promoted instead. Appointment vs. Designation Appointment is the selection by the proper authority of an individual who is to exercise the functions of a given office; Designation, on the other hand, connotes merely the imposition of additional duties, usually by law, upon a person already in the public service by virtue of an earlier appointment (or election). = No Security of Tenure! Permanent vs. Temporary Appointment in Civil Service Permanent the appointee meets all the qualifications and requirements including the appropriate eligibility requirement (civil service eligibility requirement); it lasts until lawfully terminated. Temporary the appointee meets all the requirements for the position except the appropriate civil service eligibility. It shall not exceed 12 months. Is MIDNIGHT APPOINTMENT prohibited in LOCAL APPOINTMENTS? Items No. 3(d) and 4 of CSC Resolution No. 010988 dated 4 June 2001, prohibits the outgoing chief executive from making mass appointments after electi ons. The term mass appointments refers to those issued in bulk or in large number after the elections by an outgoing local chief executive and there is no apparent need for their issuance. (Nazareno vs. City of Dumaguete, June 2009). Career vs. Non-career Service Career characterized by: (1) merit and fitness test [competitive exam] or highly technical qualification; (2) Security of Tenure; and (3) Opportunity for Advancement to higher career position. Non-career characterized by (1) not based on competitive exam nor highly technical qualification; (2) Tenure is limited by law or co-terminus with appointing authority.
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Competitive Examination The Constitutional provisions merely constitute the policydetermining, primarily confidential, and highly technical positions as exceptions to the rule requiring appointments in the Civil Service to be made on the basis of merit a fitness as determined from competitive examinations. Although exempt from competitive exam, they cannot also be removed without cause. Career Executive Service [CES] Third Level positions such as Undersecretary, Asst. Secretary, Bureau Director, Asst. Bureau Director, Chief of Dept. Service and other officers of equivalent rank as identified by the Career Executive Service Board [CESB], all of whom are appointed by the President. They have NO SECURITY OF TENURE, may be removed anytime unless they have been issued CESO rank by the President. HOLD-OVER PRINCIPLE A PUBLIC OFFICER WHOSE TERM OF OFFICE HAS EXPIRED OR WHOSE SERVICES HAVE BEEN TERMINATED IS ALLOWED TO CONTINUE HOLDING OFFICE UNTIL HIS SUCCESSOR IS APPOINTED OR CHOSEN AND HAS QUALIFIED RATIONALE: PUBLIC INTEREST; PREVENT HIATUS IN PUBLICSERVICE RULES: WHEN LAW PROVIDES FOR IT: INCUMBENT WILL HOLD OVER EVEN IF BEYOND THE TERM FIXED BY LAW UNTIL SUCCESSOR IS CHOSEN/ APPOINTED WHEN LAW IS SILENT: UNLESS EXPRESSLY OR IMPLIEDLY PROHIBITED, INCUMBENT MAY HOLD OVER CIVIL LIABILITY (DAMAGES) WHEN PERFORMING OFFICIAL FUNCTIONS, PUBLIC OFFICERS ARE LIABLE ONLY IN CASE OF MALICE, BAD FAITH, GROSS NEGLIGENCE; NOT LIABLE FOR WRONG INTERPRETATION OF LAW; HEADS ARE LIABLE FOR ACTS OF SUBORDINATES ONLY WHEN HE HAS AUTHORIZED BY WRITTEN ORDER THE ACT COMPLAINED OF BUT: Section 24 OF LCG OF 1991 provides: Liability for Damages. - Local government units and their officials are not exempt from liability for death or injury to persons or damage to property. LIABILITY FOR ACTS OF SUBORDINATES ARIAS DOCTRINE (1989): We would be setting a bad precedent if a head of office plagued by all too common problems-dishonest or negligent subordinates, overwork, multiple assignments or positions, or plain incompetence is suddenly swept into a conspiracy conviction simply because he did not personally examine every single detail, painstakingly trace every step from inception, and investigate the motives of every person involved in a transaction before affixing, his signature as the final approving authority. ALFONSO DOCTRINE (2007); Reiterated in CESA (2008): A public official's foreknowledge of facts and circumstances that suggested an irregularity constitutes an added reason to exercise a greater degree of circumspection before signing and issuing public documents. By failing to prevent the irregularity that a superior had reason to suspect all along or to take immediate steps to rectify, the superior will be held liable.
SANTILLANO VS. PEOPLE (2010): Arias doctrine was not appied because the documents the superior had to approve were not so voluminous so as to preclude him from studying each one carefully. If he had the best interest of his constituents in mind, he should have examined all the project documents, as a good deal of taxpayers money was involved. DISCIPLINE: Dishonesty committed outside of duty Dishonesty, in order to warrant dismissal, need not be committed in the course of the performance of duty by the person charged. The private life of an employee cannot be segregated from his public life. Dishonesty inevitably reflects on the fitness of the officer or employee to continue in office and the discipline and morale of the service. (Remolona vs. CSC [2001]. PUBLIC INTL LAW TRANSCRIPTIONS SUBJECTS OF INTERNATIONAL LAW What can be the subjects of International Law? Traditionally and primarily, of course, states are the subjects of International law. When we say subjects of International law, we are referring to 'persons', juridical or natural persons, who can avail of remedies available in International Law and can possess rights and privileges. So, as a rule, only states are recognized as subjects of International Law but modern International law has already welcomed the treatment of other persons which are not juridical even including individual persons as can be the subjects of International Law. Especially with the advent of International Humanitarian Law (IHL), where international force specifically the International Criminal Court, that took effect in 2002 under the Rome Statute creating it, it deals with punishment of crimes committed by individuals, crimes such as genocide, crimes against humanity and even war crimes. Also, international organizations are also conferred the status of being subjects of International Law. States are primarily the subjects of International Law for certain reasons. You can mention at least one or two of these reasons: 1) only states can be members of the UN, that is a manifestation that states are primarily the subjects of International Law; 2) claims of individuals against other states can only be enforced through the instrumentality of national's own state. And international organizations are also dependent on the cooperation of their own states before they can enforce their claims internationally. But that is a theoretical concern in International Law. BASIC CHARACTERISTICS OF PIL PIL is a horizontal legal system; PIL lacks a supreme authority; Self-help, unlike in domestic sphere applying domestic law, is normally the means by which states enforce their rights: e. g. retorsion (a lawful act designed to injure the wrongdoing of another state), reprisal (act that is normally illegal but rendered legal by a prior illegal act committed by another state)
It is a different kind of legal system it is a legal system but of different kind, unlike in a domestic legal system where a system of law may be recognized as higher than other systems of law. For example, there is a supreme legal authority in a domestic set-up but not in international law. Even the International Court of Justice (ICJ) cannot be considered as a supreme body for at least 2 reasons: 1) its jurisdiction is based on consent. OPTIONAL JURISDICTION CLAUSE the state cannot be compelled to submit itself to the jurisdiction of the ICJ not unless it consents to be a
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subject of the jurisdiction of the ICJ. So, there's no international police. retorsion and reprisal You ask the question: if we cannot sue them with legal effects similar to the domestic sphere and if there is no 'international police' in international law, what are the remedies available to aggrieved states? You have the concepts of retorsion and reprisal. Retorsion is one way of implementing or enforcing a legal claim when it cannot be enforced through a police authority. There may be decisions but the problem is with the implementation or execution of the decision and so sometimes it cannot be executed so states resort to commonly either retorsion or reprisal. Retorsion is a lawful act designed to injure the wrong doing of another state. A good example of retorsion is the withdrawal of economic aid. If state A had been receiving economic aid by state B and for an established wrongful act of state A, state B may withdraw its economic aid. It's not wrongful to withdraw an economic aid because no state is bound to give economic aid to other states. It's not wrongful to withdraw an economic aid because no state is bound to give economic aid to other states. Reprisal, on the other hand, is normally an illegal act but it is recognized as a valid means of enforcing a claim when it is based on a prior illegal act committed by another state. 3 conditions should be complied with, generally, before reprisal can be availed of: 1) there should be a prior illegal act committed by the other state; 2) the one making the reprisal should follow the principle of proportionality that the act done should be proportionate to the illegal act committed by the other state; 3) the state making reprisal must be able to establish that it has already exerted other efforts domestically in the other state or by other means such that reprisal in international law is considered as a remedy of last resort. Example: if the national of state A who is residing in state B had been a victim of injustice because the private property of this national of state A residing in state B had been expropriated by the government of state B without payment of just compensation, what is if possible reprisal following the principle of proportionality in state A? State A also may do the same to a national of state B. that is illegal because when you expropriate, you have to pay just compensation but state A is not paying just compensation because that is actually reprisal involving this prior illegal act of sate B. SOURCES (Formal or Legal) OF PIL Art. 38 (1), Statute of ICJ: Primary: (a) international conventions (b) international custom (c) general principles of law Subsidiary: (d) judicial decisions and teachings of most highly qualified publicists Primary and subsidiary, this is taken from the Statute of International Court of Justice, Art. 38, par.1: international conventions, international customs, general principles of law and subsidiary sources, judicial decisions and teachings of most highly qualified publicists.
The Statute of ICJ Art 38 mentions of international conventions. It compasses treaties as well not just conventions because normally if you talk about treaty, it's normally entered into by states, of course, by just 2 or even more but a few number of states. So that if it's entered by 2 states, then it's a bilateral treaty. If more than 2 could be multilateral treaty. If it's entered into by a large number of states, normally it's not called treaty anymore, it's called convention. There is no legal difference in international law if you speak of a condition or a treaty. They are treated under the same source: international convention. International custom. We ask the question: what is a custom in international law? Custom is regarded as the evidence of general practice accepted as law. It's not law but it had been accepted by states that kind of practice as binding, meaning non-compliance or non-observance of that practice may result to some adverse consequences or even liabilities in international law. For a practice to be considered as a customary norm, the following are the elements: 1) objective element; and 2) subjective element. Objective element, called objective because you refer to the acts of states, whether or not they have been practicing such norms or principle. The second one is subjective because it is based on judgment, that is, the judgment of states whether or not a particular practice had been accepted as a legally binding norm. we call it opinio juris. Objective element or the general practice, that's easy for international courts to determine. You could just look at actual practices of states. The difficulty is the determination of opinio juris. The ICJ does not only render decision in contentious cases, unlike our SC which does not render advisory opinion. ICJ of the UN renders advisory opinion. So, in 1996, a resolution was passed submitted to ICJ by the general assembly on the issue of whether or not the use or the threat of use of nuclear weapons may be valid in any circumstances. According to the ICJ in its advisory opinion, resolution passed by the general assembly may be considered as basis for saying that a particular practice had been accepted by the states as a binding norm. Where to look for evidence that a particular practice or norm had been accepted by states as binding? A good example according to the ICJ is resolution of the general assembly that consist of plenary assembly of all member states of the UN. They agreed to that resolution. In this case, there were about 50 states which agreed that the use or even the threat of use of nuclear weapon as illegal. So, with 50 states, it was accepted as a binding norm. there were, of course, which did not agree with the resolution of the general assembly declaring the use or even the threat of use of nuclear weapon as illegal. But with 50 states according to the ICJ, that is opinio juris. General principles of law are recognized by civilized nations and they are aimed at providing solutions to controversies where treaty law or customary law provides no guidance. Sometimes, conventions, treaties or even customary norms cannot provide for definitive opinions or principles on a given controversy. An international tribunal that is confronted with such a problem may resort to general principles of law. The statute of ICJ provided for this one in order to fill in gaps between treaties and customary norms. Examples, of course, are mostly practiced domestically like your principle of estoppel, good faith, exhaustion of local remedies. Before you can make the state responsible for the acts of its agents in dealing with aliens, exhaustion of local remedies is still a prerequisite. In our case, Mendoza died. So perhaps the heirs of the victims may not have any local remedies at all not unless it will sue the alleged incompetent policemen. Then again it will post another international law issue like the doctrine of act of state.
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Judicial decisions and writings of publicists. Take note, subsidiary only, meaning international courts can make use of them in the absence of clear and categorical conventions or treaties, customs and general principles of law. But judicial decisions of the ICJ, Art 59 of the statute, are binding only between the parties and in respect of that particular case. But decisions of ICJ will provide some guiding principles when ICJ is confronted with more or less similar issues. But that is not to say that it following stare decisis. Unlike in our local courts where the SC can always say 'this issue is not novel'. Stare decisis in ICJ decisions, not practiced. Decisions of ICJ are also independent of decisions of other tribunals. Maybe because of the fact that international crimes have become complicated, there's also the recent development in international law, especially international criminal law. After the adoption of the 1949 Geneva Convention and the additional protocols in 1977, I and II, there has been attempts by states to form ad hoc courts to deal with international crimes. You have the ad hoc courts of the international court tribunal of the former Yugoslavia known in IHL as ICTY and you had also the ad hoc criminal court of Rwanda dealing with certain atrocities committed in Rwanda but noting that it may perhaps encounter difficulties in international law on matters of jurisdiction, states have agreed to create an international criminal court to deal with international crimes. So, we have now, which took effect on July 1, 2002, the International Criminal Court or the Rome Statute. What would be the effect of the decisions of the ICJ? Opinions are saying that these decisions are independent of this newly created tribunal. So, you cannot say that the decision of international criminal court should be made on the ICJ or vice versa because there is no formal relationship between these tribunals, these are independent tribunals. Other Possible Sources of PIL Acts of International Organizations (e.g. UN and its Organs like GE, IMF, ICAA) Soft Law (guidelines of conduct which are neither strictly binding norms of law nor completely irrelevant political maxims) Equity (Justice)
The ICJ is not prohibited or barred from invoking or using equity principle in resolving certain cases, even while this equity principle may not actually conform to certain norms in international law. HIERARCHY OF THE SOURCES OF PIL Is there a hierarchy of the sources of PIL? In the preparatory work in international law language from one repertoire, the preparatory work (like record of the deliberations on the preparation of the statute) are the sources of analyzing the true meanings/interpretations of certain provisions of international conventions. How do you interpret provisions of international convention? You can make use of the preparatory work, the history why there is a particular provision or even convention. It was found out that the international law commission suggested that there should be hierarchy among the 3 but later on they agreed that that shouldn't be the case because international law is dynamic field of law. They should only categorize the sources as primary or subsidiary. Therefore, if you are asked the question whether there is a hierarchy of the sources of PIL, there is none except for jus cogens norms. Jus cogens norms are always superior to any customary norm or even convention. Even constitutions of states may be assailed or questioned if a provision of that constitution contradicts jus cogens norms. You remember the case of the comfort women, they were denied representation by the Philippine government when they wanted the Philippine government to take the cudgels for them because that is exactly the idea, you have to ask the support of your government if you want to enforce a claim against another state. But SC said rape at the time these acts were committed was not considered yet categorically as jus cogens or perhaps erga omnes obligation. So, dili mandated ang Philippine government to represent the victims (the comfort women) in asking for compensation from those who committed the act. My point is, that is the issue involving Justice Del Castillo. Even the Supreme Court committed plagiarism, and it came out in newspapers, and maybe, who knows the bar examiner can think of this kay gwapo ni nga pangutana dah sa international law Jus Cogens and Erga Omnes. This is one issue here. How do you deal with the different sources; Guidelines in determining which source of PIL prevails over the other. How do you deal with the different sources? Pananglitan class, you have different treaties or conventions dealing with the same subject matter, but adopted in different times, which treaty or convention will prevail? Whenever there is a conflict between a treaty provision and a particular norm, which would prevail, nga wala man kaha nay hierarchy? In conflict, then there should be a rule. These are principles that we also follow when we are confronted with problems dealing with public international law or what we call as general accepted principles of international law, and our statute. And these are also the same principles that you also observed in statutory constructions. What are these principles? We have: Lex posterior derogat priori Lex posterior generalis non derogat priori speciali Lex specialis derogat legi generali
See: -The River Meuse Case (Netherlands vs. Belgium, PCIJ Reports, 1937) -Ex aequo et bono Art. 38 (2), ICJ Statute There are, however, other possible sources of PIL. Those are the main sources and these are the sources of international law in so far as the ICJ is concerned. But then again, the ICJ is not the only international court in international law, there are other international courts. There are even ad hoc arbitration committees or tribunals. There are also inter-regional or even regional commissions created by some states like in Europe. So, there may actually be other possible sources of PIL. So, you can take note of: 1) acts of international organizations. SOFT LAW- set of guidelines of conduct which are neither strictly binding norms of law nor completely irrelevant political maxims. States observe them but if they don't, there isn't much repercussion if they do not comply with the rules. Example: resolutions issued by some international organizations like World Trade Organization. Like the policy of non-adoption of too-nationalistic-economic policy under World Trade Organization. The rule requiring the members of the WTO not to provide for too restrictive economic policies that would affect the flow of goods and even services. These are guidelines. In fact, non-compliance with these rules would only result to, perhaps, arbitration and not necessarily actual contentious cases.
Nganong dili nalang nato ni ininglison. A later norm prevails over prior or earlier norm or law. A general law that is later in
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adoption cannot abolish or set aside a prior special or specific law Lex posterior generalis non derogat priori speciali. And your famous of course special law or norm cannot set aside a general norm or law. You will notice that these are the same principles that we observe in statutory construction that a special law prevails over a special law, etc. Mao ra na sila class. So there are treaties or conventions that are general and there are also treaties or conventions that are specific. So you have also to analyze their characteristics. JUS COGENS So here, Jus Cogens. What is Jus Cogens? Dont you know that this principle is actually found in the Convention on the Law of Treaties. The Vienna Convention on the Law of Treaties in 1969 recognizes the acceptance of Jus Cogens when it says in Article 53: A treaty is void if it conflicts with a peremptory norm of general international law Therefore, jus cogens are peremptory norms of general international law. What do you mean by peremptory norms of general international law? These are norms that are 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 having the same character. So what are the examples of Jus Cogens? So wala na-apil ang rape. Sakto guro and Supreme Court, nag-plagiarize lang. Based on the listing of the highly-publicists, these are accepted as jus cogens: Examples: prohibition on the use of force. That is in fact embodied, it is not just a norm, in the Unite Nations Charter. The UNs Charter is specific that it prohibits the use of force. The prohibition on the commission on the use of genocide, slavery, even the gross violation of the right of people to self-determination, racial discrimination, and even torture. Jus Cogens vs. Erga Omnes How is Jus Cogens, as a concept, related to Erga Omnes norm? Jus Cogens only refers to the general idea that there are norms that the states or the nations as a whole, cannot violate or disregard. Mao ra na ang meaning sa jus cogens. Therefore, it says for example, that states are bound not to enact laws that would violate the right of people to selfdetermination because respecting the right of the people to self-determination has already ripen into jus cogens. Erga Omnes norm, on the other hand, specifically deals with the obligation of the state. So unsa may kalahian? Jus Cogens is general, ang Erga Omnes norm is specific because it specifically refers to the obligation of the state towards the international community. Although paryente ra ni sila class, murag half-brother half-sister. bar exam question In the first question in the recent bar exam, it came out. What happened there? I think the government granted amnesty to those who committed crimes of killing the members of the indigenous community. Gi grantan ug amnesty, those who killed the indigenous cultural communities. Then the question was: whether the grant of amnesty violated certain international law? If you argue that the killing amounted to genocide, because genocide is the killing of national, ethnic, racial, or religious group as such, then you can say that the amnesty granted by the government contravenes the erga omnes norm. Unsa
man diay nang erga omnes norm it is the obligation of state towards the international community. What is the obligation in so far as genocide is concerned? It is to prosecute violators of the jus cogens prohibiting the commission of genocide. Mao na ang erga omnes norm your duty is to prosecute those who committed genocide. There is a note there on the examples of erga omnes norm: Erga Omnes obligations of a state to the international community (ex. Not to commit/fail to punish International crimes.) If you fail to punish, that is a violation of erga omnes obligation. Ingun-anion nalang nato ni pag distinguish, for example. The right of people to self-determination is jus cogens, the duty not to violate this right of people to self-determination is erga omnes norm. Nakuha na niyo ang distinction class? (Question from Batits: Sir, unsay literal english translation sa erga omnes? Ngano kana man nga language ang gigamit sa international community, taking into consideration that English language is considered as the universal language?) (Sir: Good question. I will research on that.) (Pak-pak ang tibuok class.) INTERNATIONAL LAW AND MUNICIPAL LAW These are fundamental matters in the international law. Relationship between the international law and municipal law. Which law prevails in case of conflict. By municipal law, we are referring to the Constitution and other local laws. In case of conflict, will international law prevail, or the constitution or a municipal law prevail over international law? There are two theories here. One is the Dualist Theory, and second, is the Monist Theory. Dualism Theory first. In Dualism, we categorize or dichotomize the tribunal deciding the case. Because in dualism, there is a recognition that there are two sets of legal systems in the world. One is the international legal system, and the other is the domestic legal system. And they are not necessarily related. Such that, we make a distinction if the tribunal or forum deciding the case is domestic, then it is expected to uphold the domestic law or municipal law. But if it is an international tribunal or international court that is asked to render a decision, then we expect the international court to uphold international law over domestic law. In Monism, the understanding is there is only one legal system in the world. Such that domestic laws or constitutions of states are mere manifestations or expressions of international law. So international law, perhaps under Monism, should always prevail over domestic laws for domestic laws are only expressions or manifestations of international law. INCORPORATION & TRANSFORMATION The same theories on Dualism and Monism would also point to another theories dealing with the rules of making the international law forming part of the domestic legal system. We have Incorporation and Transformation. How do you distinguish one from the other? In Incorporation, international law forms part of the municipal law automatically because of a provision usually found in the constitution, saying that principles of international automatically form part of the domestic law. The best example, of course, is our very own Section 2 of Article II when we declare that general accepted principles of international law (GAPIL) form part of the law of the land. By that specific provision, with or without any positive or affirmative act on the part of the government, after the effectivity of Section 2 of Article II of our Constitution, then
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the generally accepted principles of international law will form part of the law of the land. Sir, lain lagi ang statute sa ICJ kay wala lagiy GAPIL, kuan ra lagi to sir - Conventions, Customs, General Principles of Law. Former Justice Azcuna explained during the deliberation of the members of the Constitutional Commission that they deliberately use the phrase generally accepted principles of international law so that it could cover treaties, conventions, customs, and general principles of law. Kay kung imo ra gud ingnon nga customary law or general principles of law unya naa man poy customary norm, naa pay treaties and conventions. Para karga tanan, ingon si Justice Azcuna,ato ning gamitan ug our own word generally accepted principles of international law, covering therefore conventions, customs and general principles of law kadtong primary sources. Transformation on the other hand, requires a positive or affirmative act on the part of the organs of the government before an international becomes part of the domestic law. This would, for example, require that before an international law becomes part of the law of the land, there must be a legislation on the matter. Or perhaps, a general principle of international law becomes part of the law of the land because it has been used by our own Supreme Court. Remember, decisions of Courts form part of our legal system. So international law can be transformed into a domestic law through the instrumentality of the decisions of the Supreme Court, or in many cases through the instrumentality of our law-making body when a law is passed dealing with the same general principle of international law. In fact, in some international law books, even the recognition by the Executive Department of a particular international norm may actually constitute transformation. So unsay kalahian sa Incorporation ug Transformation. Incorporation is automatic ang formation of international law in the domestic sphere. This supports what theory Dualism or Monism? This actually reflects the thinking of the Monist since domestic laws are just reflections or manifestations or expressions of international law, then international law should likewise form part of the domestic law automatically. Dualist would espouse for Transformation before an international law will become part of our domestic law. Precisely because of the thinking that there are two sets of legal systems in the world. One is independent from the other and it can only be part of the other if there is transformation, under the Dualist view. Later on we will talk about UK, US practice, Dutch practice and Philippine practice after the mockbar exam. STATES AND GOVERNMENTS Lets go States and Governments. In some books, they would refer to opinions and writings of experts and authors as to the definition of the state. So normally, if state is to be defined from the perspective mostly of political science or social science. That is why the enumeration of the elements of the state would be: population, territory, government and sovereignty. But then again, kanang mga opinion of authorspublicists, subsidiary man gud na siya class under Article 38 of the ICJ. So my opinion is it would be better to just refer to something that is very clear. And there is the enumeration of the elements of state in Article 1 of the 1933 Montevideo Convention on the Rights and Duties of States. And the following are the elements: 1. permanent population; 2. defined territory;3. government; and 4. this one is a little different from the usual enumeration by authors - capacity to enter into relations with other States.
So dili jud na actually sovereignty that is required. Just the mere capacity to enter into relations with other states. We will go to that later on. Very quickly, permanent population. There is no requirement as to sex - whether male or female. But one interesting question is, what is the requirement of population as an element of state it must be sufficient. Meaning, that it can continue to exist. Otherwise, without population, there is no more state. So comes the issue whether or not all males, for example constituting population can be considered population as an element of state, considering that biologically of course males cannot reproduce on their own? How do these people continue the existence of the state? That is not a legal question because the Vatican City which is recognized as a state is composed of people not by reason of reproduction. The people there go to Vatican City not because they have been born of certain individuals but they were send there by Catholic Church. What is important is it is able to continue its existence as a population in any way. Either naturally, scientifically, by migration, or whatever, for as long as there is permanence of that population. Defined Territory. In international law, the idea of defined territory does not require the metes and bounds of the territory unlike when you create a local government unit. In fact, for so many years, we have not even defined our archipelagic baseline, not until last year when we passed RA 9255 on the definition our archipelagic baseline. So it does not matter whether or not it is not clear in our constitution. Even if you look at our constitution, Article 1. It is not very clear. In fact, the national territory of the Philippines consist not just the Philippine archipelago but al other territories over which the Philippines has exercised jurisdiction or has sovereignty. So in international law, it is not required that there should be metes and bounds, area, etc. Government. There is no required form. What is important is that the government is able to command obedience from the inhabitants. Meaning, it is able to enact laws, it is able to implement the laws, and whenever there is a violation to the law, it is able to punish the violators. In some books, it is referred to as the internal sovereignty of the state. It is part of the internal sovereignty of the state the ability to command obedience. Capacity to enter into relations with other states. Its not really, as some author would suggest, that it is really free from external control. But that is of course given that it should be free from external control. But under the Montevideo Convention, mere capacity to enter into relations with other states would already be sufficient to make that group of people in a territory a state. That is why you have the associated states, which came out in the bar exam, protectorates, trusteeships. Limited capacity to enter into international relations does not prevent the existence of the state. Montevideo Convention So under the Montevideo convention they may be referred.. they may be considered as states for the purpose of determining rights and duties for this group of people. Islands of Palmas Case Later on we will study the island of palmas case in Netherlands versus the United States. Theres a good discussion by Max Hubert on the concept of territorial sovereignty. This involves the island of palmas case that was disputed by the US and Netherlands after the cession of the Philippines by Spain to the United States ok? There was this island, i think its in the eastern part of the i mean
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southeastern part of the Philippines. Well discuss that later on METHODS OF ACQUIRING TERRITORIES And then territory and the area of territory which is one subject of bar exam the idea of terra nullius. You know there are different methods of acquiring territories. Aside from prescription, you have occupation. Occupation A territory may be considered part of another state by occupation. But one important requirement as also discussed in the island of palmas case is the requirement that the territory must be terra nullius. What do we mean by terra nullius? Immediately prior to occupation, discovery and occupation are actually required? What is terra nullius? By terra nullius we mean that the territory must not have been owned by another state at the time it was discovered and occupied by the acquiring territory. There are may be two situations where a territory is terra nullius. 1. When ever since it has not really been discovered and occupied by another state. 2nd when it had been discovered, or perhaps, it was not acquired because there was no subsequent occupation by another state. Remember that when you study occupation, it requires also continuity in the exercise of territorial sovereignty as discussed in this case. So, continuity, in the exercise of territorial sovereignty will comply with the requirements of occupation because what is occupation as mode of acquiring territory it requires effective occupation. Effective Occupation. Ok, Island of palmas case, suwayi nag check on territory. Government Government. So as what Ive said as I mentioned earlier, the idea of ability to command obedience, this is what is meant by effective control in this presentation. So mere existence of government is not sufficient to confer a group of people the status of state. There must be effective control and by effective control we mean ability to command obedience. In 1988, the DNO declared Palestine as a state of, how do you pronounce it Palestine? Palestine. Others criticized this because the state of Palestine or Palestine quote and quote does not actually have a definite territory. Oh di bah? How can this be considered a state? So you must have effective control over a particular territory as well. Under the Article 3 of the Montevideo convention, the political existence of the state is independent of recognition by other states. Constitutive and Declarative Theory Ok the recognition of state and government ah kani basic ni sa inyong kuan no reviewer constitutive and declaratory theory ok very quickly lang you know it already. Di ba there were four elements of state. One two three four some books would suggest two more. 1. Possession of a certain degree of civilization and the 2. one recognition by the family of nations. But under the Montevideo convention wala na gibutang ang additional two, authors lng na. In fact, contrary to the requirements nga there should be recognition as an element of statehood. Article 3 of the Montevideo convention even acknowledges declaratory theory so lets distinguish one from the other.
By constitutive theory we mean that it is the recognition given by the family of nations that will make the state a state or that will make a group of people in a territory considered a state. So statehood is dependent on recognition by the family of nations. That is called constitutive theory. In the declaratory theory, recognition has no other legal effect than just recognizing the already acquired statehood of a group of people in a given territory. It has no effect it does not make that group of people a state but it merely recognizes that fact or declares the fact that it is a state. That is the idea of declaratory. So under Article 3 if you have time kindly take a look at Montevideo convention it supports declaratory theory meaning a state can be considered a state with or without the recognition of the family of nations and that this recognition will not make a group of people in a given territory a state, ok? Tobar or Wilson Doctrine, Stimson Doctrine, Estrada Doctrine Then you have usahay ig pangutana sa bar exam mga doctrine2x? Tobar or Wilson Doctrine, Stimson Doctrine, Estrada Doctrine I think four or five years ago wa na gyuy laing ipangutana at any rate these are doctrines in recognition of government. These are actually unnecessary questions because these are not international norms. These are just actually practices of some leaders in the past. Anyway, Tobar or Wilson doctrine on recognition of government this time, dili ni recognition of state. So ug mag recognition of state ta, ang principal theories ang constitutive ug declaratory. Kung recognition of governments we have the three doctrines known in International Law. Tobar or Wilson Doctrine exposes that the family of nations not or any state for that matter will recognize a government that has been established through revolution. Tobar Revolution, ana na lang na para dali mahinumduman. Tobar revolution. Stimson doctrine on the other hand, exposes that , a state or the family of nations should not recognize a government that established through paramount force or by or by occupation for example, by military occupation, dili mu recognize. The Estrada doctrine of course, presupposes that it may, a state for that matter, may recognize another government but it should not be interpreted as a judgment on the legitimacy of the government because if we have time we will discuss the different effects of recognition of government. So Estrada doctrine says considering that there are international legal consequences if a state recognizes a government, Estrada doctrine exposes a mere recognition should not automatically be considered as a recognition on the legitimacy of the government. Whether it is legitimate or not, the fact that it is being recognized it only refers to the dealing within government with judgment without judgment on its legitimacy. I think that those are the doctrines that we should take note. EFFECTIVE NATIONALITY THEORY Jurisdiction over persons, property, events, ambot di naman siguro ni ipangutana but youve learned from Judge Singco the nationality theory, the effective nationality theory in the and from I think Atty. Torregosa no, may jud kaayo mong pagkabahin ani class. Anyway, well talk about this later on when we have the time to discuss them extensively. PRINCIPLES IN JURISDICTION
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So you have also different principles in jurisdiction. Territorial principle that the state has jurisdiction to try criminal acts committed within its territory. Nationality principle that it has jurisdiction over its nationals. Protective principle that even states, these are just principles but we are not saying these are international law principles. These are just actually practices of some states. In some states in fact, they have laws that entitle or allow their governments to have jurisdiction over acts committed by, foreigners against their own citizens who are residing in another territory. Tan-aw ra, sa ato pa ang Hong Kong government is following protective principle. Naa pa silay jurisdiction over the acts committed by our police their own national. And of course the universality principle will go to this later on. RESERVATION IN TREATY RATIFICATION What is reservation in treaties? Treaty ratification? A reservation in a unilateral statement made by a state when signing, ratifying, accepting, approving or acceding to a treaty whereby it purports to exclude or to modify the legal effects of certain provisions of the treaty in their application to the state. Now what is important here is that, reservation is effective only when it is accepted by all the states which had already signed the treaty. Not those who already ratified, remember in international law lahi ang signing lahi sad ang ratification. Ratification is local signing can actually be done anywhere. Ok? Its because of the issue involving the new definition of our archipelagic baseline. RA 9255 Whats the dispute there involving RA 9255? Was it discussed by Judge Singco? Di ba in defining our new archipelagic baseline there was this contention, it is now pending in court, that the definition violated the treaty of Paris kay consider naman lng as spratly islands, sori the kalayaan. Sorry lahi ng spratly lahi ng kalayaan. Spratly Islands that is the International name referring to about 50 more or less islands and islets there. Philippines is occupying eight we call it the kalayaan group of islands. So thats the local name. Kalayaan mao bitaw ng tagalog di raba ta kabaw mutagalog, Kalayaan. Instead of being actually part of the phrase whereas, the Philippines has jurisdiction of these territories considered na na sila as mere regimes of islands. Unya ang definition sa treaty of Paris kuno class, niabot gyud na sa spratly isalnds. Naa pay scarborough shoal nga part gyud siya sa Philippine archipelago in other words. Based on the Treaty of Paris according to Harry Roque and company ok? So ingon ang, what issue is thought? The Philippines signed the UNCLOS the 1982 UNCLOS sometime I think in 1994. Being a member of the UNCLOS, the Philippines is duty bound to follow the archipelagic baseline definition. So dunay dispute karon class mu follow ta sa archipelagic baseline required by UNCLOS or should we follow the Treaty of Paris. Ingon dayon ang silang Professor Harry Roque, true ni sign ta sa UNCLOS but we made a reservation. So at least, idea of reservation is relevant at least beginning last year ug way idea ana ang examiner it will not come out on Sunday. EFFECT OF NON REGISTRATION OF TREATY What is the effect of non registration of a treaty because it should be registered? It will not make the treaty void take
note ha? Every treaty has under article 102 every treaty entered into by any member of the UN shall be registered with the secretariat and be published by the secretariat. So your concern is what is the effect of the non registration of the treaty? It will not make the treaty of course void but it will only bar the party that failed to register the treaty to invoke that treaty on convention entered into by this state. So not void but will only bar or prohibit the party that fail to register to invoke any provision of the treaty that was not registered with the United Nations. I think you can see this in your reviewers. Effective treaties, termination of treaties, we can discuss this later on. STATE SUCCESSION AND GOVERNMENT SUCCESSION State succession versus government succession. Theres a difference between state succession and government succession. State succession If there is succession in state, this happens usually when a territory is ceded to another sovereign state then there is a consequent change in sovereignty there. So you have learned in perhaps in political law that all political laws are abrogated. In fact, automatically, whether or not they are compatible with the laws of the new sovereign until and unless they are maintained by affirmative acts of the new sovereign. The non political laws will continue that is basic in international law. The successor state inherits all rights of the predecessors sTate but not the obligations. So there is therfore discretion on the part of the successor state to honor the obligations of the predecessor state. Government Succession But that is not the same in succession of government. There is a difference the matter of whether or not obligations of predecessor of state of government whether they will be assumed by the successor state or government. So again, if it is state succession the successor state will inherit all the rights of the predecessor state. Obligations its merely has discretion whether or not to assume the obligation of the predecessor state. In the case of government succession like what happened in 1986, or like what happens each time we change our government by constitutional means. When we take government from presidential to parliamentary we are changing governments there. Whats the rule? All the rights of the predecessor government will be inherited by the successor government so sayon kaayo hunahunaon kung rights, always inherited. But insofar as obligations are concerned, obligations of the predecessor government will dichotomize between a change in government within constitutional framework and a change of in governments outside of the constitutional procedure or framework. Soold books imong basahon class kanang mga karaan nga author ang ila lang distinction ana change of government by peaceful means and violent means. Pero di man mu follow because you can actually change governments peacefully but still outside of the constitutional framework like what happened in 1986. Di man to violent means, may be ang idea sa violence there is not in accordance with the constitution. So modern international law books would refer only to change in government within the constitutional framework and change in government outside the constitutional framework like in the case of a revolution, that is outside constitutional framework. In the first situation, if the change of government is within constitutional framework, the obligations of the predecessor government will have to be assumed by the successor government. But in the change in government if outside of constitutional framework or by violent
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means as in the case of revolution, the successor government will only inherit or rather assume obligations of the predecessor government that were incurred in the ordinary course of running the government but as for personal and political obligations of the predecessor government the successor government has merely a discretion whether or not to assume the obligations. So personal and political obligations, may not be assumed by the successor government and this is true only when the change in government is outside the constitutional framework. UNCLOS The law of the sea, you read. But i dont think you have much time 1982 UNCLOS, the United Nations law on the law sea which was actually signed in Jamaica. There was predecessors UNLCOS actually. Two of them. One in 1950 and one 1955 finally in 1982 signed UNCLOS. The issue here that is relevant in international law is the determination of our territorial sea. How do we determine our territorial sea? Determination of territorial sea We know that we have to measure it but what is the reckoning point or where is the reckoning point in the counting the.. how many miles? 12 nautical miles. 12 nautical miles will have an equivalent of 19 km more or less. Taas ang nautical miles compared sa km. If Im not mistaken its 1.856. Methods of determining territorial sea there are 2 methods of determining our territorial sea, contiguous zone and the exclusive economic zone. The low water mark method. Is used when the state is a non archipelagic state while the straight base line method also known as the archipelagic base line method is applicable in archipelagic states. Partly Archipelagic and Partly nonarchipelagic But this not black and white. A state may be non archipelagic in part and non archipelagic in another. In which case according to UNCLOS, you follow low water mark for areas that dont have islands and islets and you follow str aight base line method for that part has islands and islets. You imagine half straight half shore other side there are many islands. In one side you apply straight base line method. In the other side where there are islands and islets low water mark method. Low-water mark method It is called low water mark because you compute the low water mark during low tide. The low water mark is that part between the sea and the land during low tide. Straight base line method The straight base line method is used for purposes for archipelagic base line. The rule is draw and imaginary line connecting the outermost points of the outer most islands and dry reefs in an archipelago. And of course its from imaginary line you compute the 12 nautical miles. The you have the contiguous zone which is 24 nautical miles from the law water mark or baseline or straight base line if it is an archipelago. So 12 natucal miles territorial sea, 24 nautical miles if contigous zone, 200 nautical miles exclusive economic zone.
Territorial Sea, economic zone
Contiguous
zone
and
Exclusive
Distinction between the three. The territorial sea is part of the territory of the state. The contiguous zone is not however the coastal state still exercises limited jurisdiction over the contiguous zone. We call it in international law protective jurisdiction. It is limited because a coastal state or given the right to exercise limited or protective jurisdiction over the following matters: Implementation of a. Sanitary laws b. Immigration c. Currency d. Customs The coastal state can sent out something that is similar to check point. I dont know if it is called a check point in the contiguous zone. So it is able to exercise jurisdiction on matters affecting customs, sanitation, currency and immigration. Exclusive economic zone is obviously not part of the territory of the state but the coastal state is given exclusive privilege to exploit the marine and natural resources within 200 nautical miles. Well of course after the exclusive economic zone will be the high seas. STATE RESPONSIBILITY State responsibility is when the state is liable or responsible for what is known as the internationally wrongful act. That is defined in the draft in article of International Law provision. This internationally wrongful act may be considered so when there is action or omission that is attributable to the state in international law and there is breach in international obligation. Scope of Liability of state responsibility What is the scope of the liability of the state when it is held responsible? It is liable for reparation or compensation and may in fact object of lawful countermeasures of the victim states like reprisal or retorsion. Compensation or countermeasures. Principle of attribution or imputability doctrine But we have the principle of attribution or imputability doctrine that should be observed. Which means that the state is liable only for it own acts and omissions and in this context the state is identified with in governmental organ and apparatus. Not with the population nor with private acts of government agents. As understood, the state is liable only for acts of the governmental orders or apparatus or government officials but not with the acts private individuals. There are two cases which deals with the state responsibility that i would like you to read later on. Just take note of the Human case and the teran Hostage case involving the US and Iraq. Again, as a rule states are responsible for acts attributable to it or to the state. Doctrine of Attribution or Imputability. What do we mean by acts that can be imputed on the state? according to the Draft Art. 3 of the International Law Commission it refers to the acts of the state for the omission of the state and the State is identifiably of governmental organ or apparatus and not with the population. But an interesting question is, May a state be held responsible for private acts? Answer of course under imputabilty doctrine is no, as a general rule. Exceptions to the doctrine of Imputability But there are exceptions. Meaning it is till is possible for the state to be held responsible for the acts committed of private
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individuals. This even includes acts committed by public officials but outside the authority of the public officials. Examples of instances where a State maybe held responsible for acts of private individuals. Obvious instance where the state encourages private individual to attack foreigners. Liability of state in so far as private acts or acts of private individuals are concern would be very relevant in the area of treatment of aliens incurring liability in foreign shores. These are instances of making the state still responsible even though the act is committed by private individuals. Obviously 1st encouraging individuals to attack foreigners, 2nd failing to take reasonable care or due diligence to protect foreigners 3rd obvious failure to punish individuals who committed the act against the foreigners, 4th failure to provide injured foreigners the opportunity to obtain compensation. Rail roading a decision process that in the end the victims will not be able to get anything the supposed accused or respondent in a case. Or the state obtain benefits from the acts of the individuals or there is express ratification of the individuals act. CASES ON STATE RESPONSIBILITY The tenor of this case in the landmark case of State responsibility . if you have time read this along with Huberts case. In huberts case there was a group of people in this case there was a mob actually trying to attack an American national. The Mexican police went there upon the order of their superior. But instead of protecting the foreigner from the Mob, the Mexican police even shot at the foreigner. Mexico was held liable. The state was held liable because while there were police officers they acted beyond the authority or the scope of their authority. The instruction was for them to go to the place of the incident to protect the foreigners. The foreigners were supposedly were attacked by the Mob but the police officers themselves shot the American national. Tehran Case In the case of Tehran, this is a good case to study. For several months, if im not mistaken around 14 months, 13 hostages American nationals were detained in the embassy. There were demonstrators and the police did not do anything. And because the police did not do anything, gitan-aw lng ang demonstrators, wla sila gihumo and the demonstrators held hostage amercian nationals when they attacked the American Embassy in Tehran. Gi-tan-aw ra ang Iranian Nationals by the Iranian Police. In this case the court ICJ ruled, this omission on the part of the police and therefore the State would render the Iran state liable. Take note of this. Minimum International Standard Doctrine There is such thing as Minimum International Standard Doctrine. While it is true that when a person resides in a foreign country he is deemed to observe the laws and customs of the country such as the national state cannot claim on the fact that he would have been better treated in his home country, he may however make a claim if the foreign country laws or behavior fall below the minimum international standard. Of course it is for the ICJ to determine that. Defenses to the State Responsibility doctrine These are the preliminary objections meaning in claiming that the state is responsible for Certain acts, the following may be preliminary objections. These are the term in international law, in our language we call it the defenses.
1.
2. 3.
4.
and it is State A that claims in the ICJ. Noncompliance with the rules on nationality. The respondent state can question whether or not the state can bring the claim of its alleged national when in fact it is not their national. You also recall the Nottebohm case here. Failure to exhaust local remedies, i already mentioned that earlier. Waiver by the State. you have the famous Tanggub clause(not clear). This is different form the tanngub (not clear) clause. You know the tanngub clause here in relation to state responsibility is an undertaking or declaration of the foreigner that he will not seek help or the representation of the foreign state against making a claim against the home state. State usually disregards the tanggub clause provision. But if it is the state which waives the right then we can do nothing. Because of you are an individual, you can have a personality of your state will bring your claim before the ICJ. Remember ICJ will accept as proper parties, state, including non members of the UN. And for the unreasonable delay and improper behavior of the injured alien.
INTERNATIONAL WARS, CIVIL WARS AND RIGHT TO SELF DETERMINATION Then you have matters of other areas in international law. Matters involving international wars, civil wars and right to self determination. What are Jus Ad Bellum and Jus in Bellum? The root word of rebellion is belle. And it is a term that actually means war. Jus Ad Bellum So Jus Ad bellum refers to the rules governing to the resort to armed conflict. There are laws that govern whether or not, before armed conflict, laws governing the resort to armed conflict. For example what would justify a state to resort to armed attack against another state? We call the rules governing that, as Jus Ad bellum. If the act of the state in shooting for example the aircraft of another purportedly or in the guise of self defense, would that be a justifiable? Or is it the justification? So we have rules governing lawful war. JUS AD BELLUM AND JUS IN BELLUM Jus Ad Bellum: War). Jus In Bello: Rules Governing the Actual Conduct of Armed Conflict (Lawful Acts in times of War). [International Humanitarian Law (IHL)] Rules Governing the Resort to Armed Conflict (Lawful
Unsa man na ang jus ad bellum and jus in bellum. You know the root word or rebellion is bell and it is a term that actually means war. So jus ad bellum refers to the rules governing the resort to armed conflict. So there are laws that govern whether or not to resort to armed conflict. Before ha. So for example what would justify a state to resort to armed attack against another state. We call the rules governing that as jus ad bellum. Is the act of the state in shooting for example the aircraft of another purportedly in the guise of self-defense a justification? So we have rules governing lawful war. Jus in bellum is different. This is the set of rules governing the actual conduct of armed conflict or the rules
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noncompliance with the rules concerning nationality of claims. If it is not established that the foreigner is the national of state A

governing the lawful conduct in times of war; this is particularly covered by the rules in International Humanitarian Law or IHL. Meaning, theres already an armed conflict, what are the rules that the combatants must observe. Ok, so ang jus ad bellum class before the war, meaning what would justify engaging in war. Jus in bellum is what are the rules when there is already war, theres already armed conflict, what are the rules that should be observed? May nalang idistinguish, kuyaw kung pangayuan tag example. Atung tagaan gamay na example. international wars, civil wars & right to selfdetermination: jus ad bellum So lets talk about jus ad bellum, use of threat or use of force. Article 2, paragraph 4 of the United Nations Charter in relation to Article 51 on self-defense; individual or collective self-defense. Article 2 (4): All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action. Article 51: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. Thats where we talk about jus ad bellum. The UN Charter prohibits it, its very clear, I think you know that already. In the legality of threats or use of force, advisory opinion of the ICJ in 1996, theres a resolution of the General Assembly that declares the use or even the threat of nuclear weapon as illegal, ok so that is clear. The issue however is, what about self-defense? In the famous Caroline case, self-defense had been understood as inherent in a state, in the same manner that a self-defense of an individual from attacks of another aggressor is also considered inherent. Remember the Caroline case when there was this revolution in Canada against the British Crown, the US was allegedly supporting the rebels against Great Britain, so nisud and British forces sa New York, this a vessel ha (Caroline), gikuha sa Brititsh forces, gisunog, 2 Amercians died, so gikiha sa US ang British forces, for doing that the British Forces invoked selfdefense; protective self-defense, we will talk about that later on. The ICJ agreed on the idea of self-defense as being inherent, so the US was not able to prosecute the British forces because what they did was in self-defense, because there was allegation that the steamship Caroline was delivering weapons to Canadian rebels at that time. Very similar to the Nicaragua vs US case, where the US also intervene by sending forces to Nicaragua on the allegation that Nicaraguan government was supporting the rebels that went against the government of El Salvador, so gipadala sa US ang ilang armed forces, support the rebels that went against El Salvador by Nicaraguan Government. So take
note on the issue of anticipatory self-defense. So Article 51, you go to that. There are two schools of thought here. From the prospective of jus cogens that that the use of force or even the threat of the use force is legal and contrary to jus cogens, then there is no such thing as anticipatory self-defense. There shouldnt be an anticipatory self-defense. Any supposed justification or any supposed reason will never justify the use of force or even the threat of the use of force. From the perspective of jus cogens, there shouldnt be anticipatory self-defense. But from the perspective of course of the characteristic of self-defense as inherent, then there should be anticipatory self-denfese, but then again it is not well-accepted because in international law, if you talk about self-defense, there are three important requirements of self-defense: 1) necessity, 2) immediacy, 3) proportionality. Because in international law, immediacy is a requirement, then anticipatory selfdefense should not be justifiable. Meaning, there should be immediate need for the resort of armed force, meaning the attack should already there, that is the idea of immediacy. So if you just anticipate, like what is going on now in North Korea, can you resort to anticipatory self-defense by attacking North Korea on the ground that it is preparing for war against South Korea. So anticipatory selfdefense is still a questionable principle in international law. Thats why the claim of the US in the case of Nicaragua vs US was not upheld there. Means of Waging War and Criminal Responsibility: Jus In Bello the laws of armed conflict or law of war. It primarily seeks to protect civilian population and objects. It covers international or non-international armed conflict, but not mere internal disturbances. E.g. The 1949 Geneva Conventions and Additional Protocols prohibit the attack on civilian population or object as such during armed conflict
Kapoy na class? Last nalang. (hehe). Means of waging war and criminal responsibility. Mao na ni ang jus in bellum. We have a modern field of international law known as International Humanitarian Law, in fact it is that field of law that elevates the status of individuals in international sphere. Supposedly, di ba States lang ang subjects pero karun class pati na individuals, so duna nay international norms that deal with protection of civilian population and subjects. International Humanitarian Law governs the laws of armed conflict or the laws of war. The objective is to protect civilian population and subject. So meaning lang sa class. It covers both international and noninternational but it does not cover what we call mere internal disturbances. An armed conflict is considered international if it is an armed conflict involving 2 states. A non-international armed conflict is considered so and even for this purpose even if it is not international, IHL will still apply, if there is an armed conflict between the regular forces of the State and an identifiable group of persons in the State. But there is a requirement on a certain degree of intensity and length of time before this kind of armed conflict can be covered by IHL. So IHL covers only international and non-international armed conflict, mere internal disturbances are not covered.
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What does it mean when they are not covered? International courts that have been created purposely to deal with IHL will not have jurisdiction over these mere internal disturbances. A mob for example killed in the process a group of civilians, you cannot go to international tribunal court in order to punish these individuals because it is not considered either as international or non-international armed conflict. Liberation movement class, although in reality it is a conflict or armed conflict between the regular armed forces of a state and an identifiable group of person in IHL, wars engaged in by liberation movement, they are considered still international armed conflict. There are crimes that are punished when there is international armed conflict and there are also certain crimes that are punished when it is only a non-international armed conflict. Example, the 1949 Geneva Conventions and Additional Protocols in 1977 prohibit the attack on civilian population or object as such during armed conflict, if you attack a civilian population, you may be charged of war crime under the Rome Statue. International Criminal Court International Criminal Court (ICC), governed by the Rome Statute (July 1, 2002) has jurisdiction over the following crimes: 1. Genocide 2. Crimes Against Humanity 3. War Crimes 4. Crime of Aggression So for purposes of enhancing the protection of civilian population and civilian objects, states entered into a convention and formed the ICC or the International Criminal Court. IHL is becoming an important field in international law. It took effect on July 01, 2012(?), it has jurisdiction over the following: genocide (Article 6 of the Rome Statute, crimes against humanity (Article 7), war crimes (article 8) and crime of aggression (Article 8). Look for the definitions of these crimes. Just so you will be familiarize with the definitions of these crimes, kana lang 6, 7 and 8. Article 6: Genocide For the purpose of this Statute, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: ( a ) Killing members of the group; ( b ) Causing serious bodily or mental harm to members of the group; ( c ) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; ( d ) Imposing measures intended to prevent births within the group; ( e ) Forcibly transferring children of the group to another group. Article 7: Crimes against humanity Crimes against humanity 1. For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
( a ) Murder; ( b ) Extermination; ( c ) Enslavement; ( d ) Deportation or forcible transfer of population; ( e ) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; ( f ) Torture; ( g ) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; ( h ) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; ( i ) Enforced disappearance of persons; ( j ) The crime of apartheid; ( k ) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. 2. For the purpose of paragraph 1: ( a ) "Attack directed against any civilian population" means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack; ( b ) "Extermination" includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population; ( c ) "Enslavement" means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children; ( d ) "Deportation or forcible transfer of population" means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law; ( e ) "Torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions; ( f ) "Forced pregnancy" means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy; ( g ) "Persecution" means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity; ( h ) "The crime of apartheid" means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime; ( i ) "Enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time. 3. For the purpose of this Statute, it is understood that the term "gender" refers to the two sexes, male and female, within the context of society. The term "gender" does not indicate any meaning different from the above. Article 8: War crimes
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1. The Court shall have jurisdiction in respect of war 1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. 2. For the purpose of this Statute, "war crimes" means: ( a ) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: i(i) Wilful killing; (ii) Torture or inhuman treatment, including biological experiments; (iii) Wilfully causing great suffering, or serious injury to body or health; (iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power; (vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; (vii) Unlawful deportation or transfer or unlawful confinement; (viii) Taking of hostages. ( b ) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; (ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives; (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; (iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, longterm and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; (v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives; (vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion; (vii) Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury; (viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory; (ix) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; (x) Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; (xi) Killing or wounding treacherously individuals belonging to the hostile nation or army;
(xii) Declaring that no quarter will be given; (xiii) Destroying or seizing the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war; (xiv) Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party; (xv) Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war; (xvi) Pillaging a town or place, even when taken by assault; (xvii) Employing poison or poisoned weapons; (xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; (xix) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions; (xx) Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123; (xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; (xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 ( f ), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions; (xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations; (xxiv) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; (xxv) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions; (xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities. ( c ) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause: (i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; (iii) Taking of hostages; (iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable. ( d ) Paragraph 2 ( c ) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. (e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
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(ii) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; (iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; (v) Pillaging a town or place, even when taken by assault; (vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 ( f ), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions; (vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities; (viii) Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand; (ix) Killing or wounding treacherously a combatant adversary; (x) Declaring that no quarter will be given; (xi) Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; (xii) Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict; ( f ) Paragraph 2 ( e ) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups. 3. Nothing in paragraph 2 ( c ) and ( e ) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.
Then finally, United Nations. Atung i-discuss ang United Nations as an international organization later on but for purposes of mockbar, well go directly to International Court of Justice. Jurisdiction: contentious and advisory opinions. So it renders decision in contentious cases and it also gives advisory opinions. In what cases? Cases involving interpretation of treaties, any question of international law and breaches of international law. Public (not clear) states can be parties to the IC.J What about non-members of UN? Can they also file a case in the ICJ? Yes, ok, no problem. But take note of the Optional Jurisdiction Clause, jurisdiction is based only on consent. Duna pay other areas, International Economic Law or Trade Law, International Environmental Law and there is also Human Rights Law. part B PUBLIC INTERNATIONAL LAW Extradition Traditio, to deliver. Ex, outside of the territory. You deliver a person to the requesting state. Bar Question: Is there an obligation for states to extradite? There is none. In fact, extradition has been consider in derogation to the right to asylum because the right to asylum is customary to international law. An extradition is not customary international law. It is right to asylum that is customary international law. So what does it mean no obligation? First condition, there can only be an obligation if there is a treaty. So it is not an international obligation to extradite. Second condition, the person to be extradited has been convicted or charged of an extraditable offense and this extraditable offense is determined by the treaty. If the treaty does not have the dual criminality clause, the dual criminality principle may still apply. What is the meaning of dual criminality principle? If the offense is punished by both states considered as a crime, it may not be necessarily be listed in the treaty of extradition. In practice, there is dual criminality clause in extradition treaties. Basic principles in extradition. As I mentioned earlier, if there is no treaty then there is no extradition. Pacta sunt servande applies if there is a treaty. Purpose and coverage of Extradition The purpose of extradition is either for prosecution- case is pending or execution- if there has already been a final judgment. Take note however, the right to asylum is the customary law and not extradition. Therefore, extradition could not cover political offenses because political offenses are covered by the right to asylum. However the attentant clause- the killing of the head of state/ government regardless of any motive, shall not be
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Basaha lang. Can you do that? Mga 5 minutes lang siguro. (Basaha ninyo ui, maluoy mo ni Sir,nihangyo raba!Sige, balik sa taas, basaha!) United Nations (UN) Statute of the International Court of Justice Jurisdiction:
-Contentious Cases and Advisory Opinions involving interpretation of treaties, any question of international law, breaches of international law -Only States, including non-members of the UN can be parties -Jurisdiction is based on consent [Optional Jurisdiction Clause] -No stare decisis in ICJ Decisions

considered as a political offense and therefore not within the exception to the extraditable offenses. The Rule of Specialty must be followed- if you are extradited for this particular crime then you can not be prosecuted for another crime. That is part of due process also. Due process is a general principle of law. You can not extradite one for a crime and prosecute the person for another crime. Ex Post Facto prohibition does not apply. Ex Post Facto prohibition does not apply although it is a general principle of law. Many criminal law principles are considered general principle of law. Kanang there is no crime if there is no law punishing it. Ex Post Facto is a general principle of law but not applicable in extradition proceeding because extradition is not a criminal proceeding. Related cases. Domestically, our case on Gov't of Hongkong vs. Olalia modifying the case of Gov't of US vs. Purganan (the one involving the case of Jimenez)- where it is said that extradition is not a criminal proceeding then there is no such thing as the right to bail. It was modified in Gov't of Hongkong vs. Olalia. Justice Puno said that thinking ignores the status of an individual in modern international law. Unlike before, individual is an object and only state is the subject. Justice Puno said oops that thinking ignores the status of an individual in modern international law, unlike before individual are mere objects of intl law and only states are subjects. Things have changed according to puno, and therefore, one may be given the right to bail, for as long as the requirements on not being a flight risks, etc. etc. will be complied with but that does not make proceeding a criminal one, so ex post facto law prohibition still does not apply, meaning if an offense had been included in a treaty and the offense was committed before the treaty of extradition, you cannot claim ex post facto law, meaning that the extradition treaty will not be applied to you. Because at the time you committed the offense, the crime was not listed in a extradition precisely because there was no extradition treaty for example. Ok, the crime was committed in 2005, States A and B then had no extradition treaty, in 2009 they entered into extradition treaty involving this kind of offense, question. Can it be applied to Mr. X who committed the offense in 2005? Answer is Yes, the only objection to that is expost facto law, but that is not applicable. TERRITORY The other topic that was not discussed before the Mock Bar was territory, the islands of Palmas case which involve that island that was included in cession by Spain to the US under the treaty of paris in 1898 define the meaning of territorial sovereignty, by territorial sovereignty we refer to the right exercise in a territory to the exclusion of any other State the functions of a state, it presupposes exclusive exercise of sovereignty over a particular territory.
This is of course inspired by the so-called Westpelian concept of sovereignty under the treaty Westpelia in Europe. That treaty of Westpelia ended the European war where European states decided to end the war and agreed on a common principle treating each state as co-equal with each other, and that no state can ever interfere with the affairs of the state and under the Westpelian concept of sovereignty, the state that has sovereignty over the territory must have the monopoly of the exercise of the power, that is also the meaning of territorial sovereignty, it is very important when you study modes of acquiring territory. BASIS FOR ACQUIRING TERRITORY In international law the following are the common or popular basis for acquiring territory: Cession, occupation, prescription, the ___(sic)conquest, subjugation, then applying civil law concept on accretion, and adjudication that is arbitral award for example or court tribunals award. Lets take a look at the first four modes of acquiring territory. Cession Cession it is a transfer of territory usually by a treaty from one state to another. Cession may be done either voluntarily or as a result of war. So, although, it is seldom and in fact hard to imagine why a territory may be ceded to another, if there is no reason for the cession, now, history would tell us that in many cases that cession had been done by a treaty pursuant to an agreement after the end of the war, we have of course cession made by Spain in favor of the US, and even by some European States, to name a few Sweden for example ceding ___ (di maklaro) to another State, that used to part of the entire island of Sweden. The interesting question here, suppose, if there is a defect in the cession, a ceding State title, would that be carried over to the recipient of the territory. Answer is Yes. In the island of Palmas case, the island of palmas was included in the Treaty of Paris, that was part of the Philippine archipelago ceded to the US under the treaty of Paris. However, when the US claimed the Island of Palmas on the ground that it was included in the cession under the treaty of paris, the Netherlands protested on the ground that they have actually been occupying the Island of Palmas. It had been observed that a the time the Netherlands occupied the Island of Palmas, Spain have not objected nor protested to the occupation, so according to the International Court of Justice, that resulted to perhaps the abandonment of the Island of Palmas by Spain, because as you will recall your rules on discovery, discovery should be coupled with occupation, and occupation is meant by international law as effective occupation. Although it may have been discovered by Spain the Island of Palmas when they occupied the Philippines, Spain failed to effectively occupy the Island of Palmas, so when it was included in the Treaty of Paris, no title was ceded actually to the US because there was no effective occupation albeit there was discovery by Spain. On the contrary, It was
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Netherlands that had occupied the Island of Palmas effectively. occupation Second, occupation. It is in here that you take note the requirement of terra nullius. What is meant by terra nullius? Terra nullius is a territory which immediately before the acquisition belonged to no State and this happens under 2 conditions. 1. It may have been a territory that have not been under any State from the very beginning. That is the pure terra nullius territory. 2. Even if the territory at one point in time actually belonged to the State but had been abandoned by the previous Sovereign. In international law abandonment has 2 elements. 1. There should be failure to exercise authority and 2. There should be intent to abandon. This was also discussed in the Island of Palmas case. What is the legal significance of discovery of territory? Sir, ngano magstudy pa man ta ana sir, naa pa diay nang terra nullius karon ???, wuie, cguro wala but there are still pending cases involving territories. Unya, diha man gud na magsugod ang basis whether one territory will be awarded to another, in fact, kanang Spratly Islands for example is still pending, dli gani na maresolve. I dont know, that would have to be resolved by the application of international law. The significance of this is that while these are discoveries were made long time ago, the controversies many of them are still pending, even if the cases im asking you to read are even recent cases, 2005 cases still about terra nullius principle. Indeed, discovery alone will not give the acquiring state the right to the territory because discovery will merely give the acquiring State inchoate title. What is meant by inchoate title? Inchoate title means that the state that discovered the territory will be given reasonable time within which to make an effective occupation which the operative fact that enables the state to fully acquire the territory. Meaning during the time that it is given the opportunity to effectively occupy the territory, it has the right to bar or prohibit other States from exercising sovereignty over the territory. In fact, again, in the island of Palmas case, that should have been done by Spain after discovering the Island of Palmas but no effective occupation was made, on the contrary, it was the Netherlands, that some sort established administration in that island and since there was no protest, there was abandonment accdg to the ICJ. So occupation requires effective control and intention and will to act as sovereign, the mere sending of people to newly discovered territory is not sufficient to constitute as effective occupation. Padala lang kag tawo didto but no establishment of any form of government for example, siguro gihimo lang ninyong unsa man ahhh beach resort ?, but there was no establishment of any form of government, so there is no
intention and will to act as sovereign in so far as the discovered territory is concerned. You take note of that. prescription The third kind or mode of acquiring territory is prescription. This is also similar to your civil law concept of acquisitive prescription but the difference is since this is international law, there is no fixed no. of years that can to be considered as the threshold in determining whether there is already acquisitive prescription or not unlike in your civil law,. It depends on different circumstance. Can we rely on the decision of the ICJ? Not also, because stare decisis is also not applicable in international law adjudication. It can be determined only on a peculiar and distinct circumstances of each cases. prescription vs. occupation But how do you distinguish prescription from occupation? In prescription, there is acquisition of territory that is not terra nullius. In occupation, the territory must be terra nullius. In prescription the acquisition of the territory is really adverse, it should be against another state, it also requires effective control and will to act as sovereign. But one important distinction here acoording to ICJ in Island of Palmas case is since prescription as a mode of acquisition of territory is adverse, longer period of time is required in so far as the requirement of control is concerned. In case of occupation, there is really no requirement of a longer period of time to be able to establish effective occupation. conquest and subjugation What about conquest and subjugation? During the 18th and 19th centuries, that have been the reasons for engaging war, acquiring territory, but at that time the rule prohibiting the use of force in acquiring territory was not yet considered as customary international law. It was only in 1970 after the Secretary of State of US Steveson who declared that it will not recognized any govt established as a result of conquest or subjugation. The UN general assembly issued a resolution in 1970 declaring that the acquisition of territory thru the use of force was already considered as illegal. Now, under also the same general assembly, a new resolution, there is apparently an understanding that the use of force in acquiring territory is now actually a customary international law. It have been there for quite some time at least since 1970 or there about. Concept of conquest will not apply to civil wars. Take note however that the rule on conquest, that it is illegal, that the acquisition thru the use of force as considered illegal will not apply to civil wars. So that if a group of inhabitants fighting against for example an abusive regime or dictatorial govt and wants to separate from that govt and establish its own set of govt - although it is thru force and as a result of which it is able to acquire property because in international law rebellion or belligerency requires at least a territory for
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this belligerents to be able to be covered by public international law. So if in the process of the belligerency the rebels are able to acquire a territory and being able to successfully separate from the national govt that is acquisition of territory. Yes, thru the use of force, correct, but according to international law, that is perfectly alright. We discuss this already, may be we go to some areas of the law of the sea. LAW OF THE SEA As mentioned earlier, if you study the law of the sea, you study the UNCLOS in 1982, there were actually 3, the latest is UNCLOS in 1982 we call it the UNCLOS 3. This time I will admit that the book of Magallona has the best presentation in so far as the law of the sea is concerned. Ug ari kang Sarmiento gamay ra iya discussion. Im using the book of ___akiherst_(ako ra gibisaya kay di ko ka kabaw sa spelling hahah) Introduction to Public International Law but its a relatively old book I think its 2001 book so I also consulted Merlyn Magallona, Sarmiento and old sad na book ni Paras. But anyway what are the important points in the law of the sea?, ayaw na lagi ug basa sa book ni paras lagi kay mao nay gitawag na ULTIMATE BOOK. You have to take note of the following zones in the study of the law of the sea, you have the internal waters, territorial sea, contiguous zone, exclusive economic zone and the high seas. Now, kinsa may wla kahibaw ani class?, how to distinguish one from the other?, aw kahibaw jud ka ani siguro noh? BASIC ZONES Lets take a look at these basic zones. First the internal waters - includes ports, harbors, rivers, lakes and canals, dli ning canal kanang diha sa.(nangatawa ang tanan, parehas kaha sila gihunahuna unsa nga canal gipasabot ni Atty.?) Canals are man-made rivers. But you dont take it literally as internal that it is really found inland, because ports and harbors are not inland waters. Now, what is the right or privilege of coastal state over internal waters? The coastal state can prohibit entry into its internal waters in so far foreign ships are concerned except ships in distress. When already within internal waters, it is important to distinguish what kind of vessel is already there, because different rules will apply, especially war ships, then you know that the coastal State cannot exercise jurisdiction over the acts committed onboard the war ship because it is considered as an extension of the foreign state. What about the territorial sea? Its 12 nautical miles from the baseline. It is used to be 3 nautical miles under the old law of the sea, now its 12 from the baseline. The baseline is determined by 2 methods. The normal baseline and straight baseline.
The normal baseline follows the low water mark method. That is you compute the 12 nautical miles from the low water mark which is actually the point where the land and the sea meet during low tide, that is the low water mark, that is where you count your 12 nautical miles. The straight baseline method is especially applicable to archipelagic states. So following the archipelagic doctrine of territoriality, we imagine the straight baseline connecting the outermost points of the outermost islands and dry reefs of the archipelago, and it is from that straight baseline that you count the 12 nautical miles. The normal baseline therefore is applicable to nonarchipelagic and straight baseline to archipelagic. But there maybe states that have the contour of both archipelagic and non-archipelagic in which case in areas that have islands in the outermost points of the state then the straight baseline method may be used. limitation to the territorial sea The important limitation to the territorial sea is the right of innocent passage. In UNCLOS, there are enumerations of instances by which you can consider it as an exercise right of innocent passage. What is the meaning? Generally, it is innocent if not prejudicial to the peace, good order or security of the coastal state. For purposes of complying with the right of innocent passage, fishing vessels must also comply with the domestic laws on fishing and for submarines, they are allowed to pass through the territorial sea but it is required that they should navigate on the surface and show their flag if they are already in the territorial sea. contiguous zone The contiguous is 24 miles from the baseline, meaning its additional 12 nautical miles from the end of territorial sea. What is the privilege or right of a coastal state over the contiguous zone? The coastal state is limited to protective jurisdiction. Meaning it can exercise control or establish control mechanism within the area to prevent infringement of its customs, fiscal, immigration or sanitary regulations. Once the acts are done inside the territorial sea, of course, the coastal state can now exercise criminal jurisdiction over the acts. exclusive economic zone The exclusive economic zone is 200 nautical miles from the baseline. What is the right of the coastal state over EEZ, the coastal state has sovereign rights over all economic resources of the sea, seabed, and subsoil which includes not only the fishes but also minerals beneath the seabed. However, if the coastal state is unable to fully exploit the resources like poor countries for example, the UNCLOS mandates it must make arrangement to share the surplus with the other states. For that purpose, you can ask certain fees for that arrangement, pwede. high seas
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Beyond 200 nautical miles from the baseline, that will now be the high seas. What is the significance of high seas? It may now be used freely by ships of all nations, including those landlock states, wla gani sila territorial sea, wla gani internal naa maybe but not complete but definitely no territorial sea, they may still enjoy the high seas. What are the freedoms on the high seas? Freedom of navigation, fishing, lay submarine cables and pipelines and fly over the high seas. For commercial flights over territorial seas and even cross borders, they are subject to agreements and the treaties by states. international law or law of the flag state Now, the ships in the high seas are governed by either international law or law of the flag state. What is the flag state? It refers to the nationality of the flag which is determined by the place of registration. As a rule in the high seas, only 1 flag is allowed. What is flag of convenience? These are the countries that allow registration of a ship for a fee. This is a some sort of practice of some states that allow registration of vessels for purposes for a fee. It may be questioned. But if you are registered in that country, then the country is the flag of the ship. Is it possible for war ships to interfere with merchant ships found in the high seas? That is another consideration in international law. Of course you dont talk about merchant ships interfering with other merchant ships. But what about war ships? Because war ships, they are acts of the states, so we can about possible liability in so far as the act of the state is concerned thru the instrument of that ships. It may be allowed. You may take note of this situations: stateless ships, hot pursuit - if the vessel had committed a crime in the territorial seas and escape all the way to the high seas, the warship may still continue the pursuit up to the high seas, or if agreed upon in a treaty, in case of piracy, that is punished as an international crime, self-defense or when authorized by UN. 3 principles in jurisdiction of municipal courts over crimes committed on the high seas. There are 3 principles in so far as jurisdiction of municipal courts over crimes committed on the high seas. This is still not very well-settled in international law. Like the Lotus case for example, that involves a French ship that collided with the Turkish ship that resulted to the death of the crew of the Turkish ship. Pag dock sa French ship sa Turkey, ah gidakop dayon ang head, it became an issue whether or not Turkey had jurisdiction. But the lotus case applied the socalled subjective territorial principle. These are just principles of international law. You can take note of nationality principle where the state has jurisdiction
over that situation if one injured is a national. Or if the other vessel is registered in that prosecuting state then you follow the subjective territorial principle. If not which is just the one actually supported by the 1958 Geneva convention on the high seas, then you follow the objective territorial principle, which is based on the flag state of the vessel where it is registered. Continental Shelf The continental shelf is different from EEZ. What is the continental shelf? It is 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. Pero if kung kana nga natural prolongation, kana atong mga land, imagine ra gud itriangle, kana imo makita na land tip lang na sa triangle, below the sea is a natural prolongation of the continent. That is the continental shelf. Now question, what is the extent of continental shelf? If it is shorter than 200, the continental shelf can still extend up to a distance of 200 nautical miles from the baseline. The state has exclusive rights over natural resources in the continental shelf. Pero kani nga natural resources if you read very carefully the UNCLOS would have to refer to non-living resources, so fish for example, you apply EEZ but for continental shelf we refer to the minerals found in the seabed and the subsoil. median line What is the median line? Where the coasts of two states are opposite or adjacent to each other, neither of them is entitled to ___ agreement between them to the contrary. Meaning if there is no agreement between this two states, possible man gud nga sikit ang duha ka state so if you insist on 12 nautical miles nya sikit ra sad wla kaabot ug 24 nautical miles so dili jud sila ka extend up to 12. What is the rule? The equidistant principle (not sure ani kay di klaro or bungol lang jud ko, Auntie Nimfa tulongan mo ako help....hehe). It refers to the median line which is beyond the median line every point of which is equidistant from the nearest points on the baseline. So half, k?. But we refer to the baseline as our basis. This is applicable to continental shelf. Kay naa may 2 states na divided by water pero nag continue lang ilang continent actually so equidistant principle. The exception to equidistant principle is historic title or other special circumstances. By historic title, one state for example had already exercised sovereignty over that continental shelf then it may be considered as an exception. The North Sea continental shelf for example, the ICJ ruled that this equidistant principle or the median line theory is not yet a customary international law. That is the suggestion of the ICJ in the North Sea Continental shelf case. The ICJ therefore suggested that issues like this would have to be settled by agreement between the states and not necessarily the application right away of the equidistant principle. AIR SPACE and OUTER SPACE
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What about air space and outer space? Maybe this is the principle that inspired Armageddon movie, COMMON HERITAGE OF MANKIND PRINCIPLE. This is applicable to the air space, outer space or even high seas. The term common heritage of mankind - this principle means that the exploration and use or utilization of resources in areas beyond national jurisdiction shall be in the province of all mankind and shall be carried out for the benefit and interest of all countries irrespective of their degree of economic or scientific development. This is not really found in a universal covenant. But there was a treaty of Moon, a treaty that covers the Moon which mentions of this meaning that it shall be in the province of all mankind and should be carried out for the benefit and interest of all countries. The RES COMMUNES, the moon, the outerspace, not subject to appropriation. What will legalize the activity is the objective of the activity. If it is for the benefit of mankind, it may be justified irrespective of how it is undertaken. HUMAN RIGHTS LAW Lets go to human rights law. When you study human rights law, you have to take note of universal declaration of human rights. This declaration mentions of 2 generations or categories, although the term generation had been criticized as improper because it might suggest that one group of rights are given preference over the other. Some authors would rather call them categories of human rights. You have 1 Civil and political rights and 2 Economic, Social and Cultural Rights. Publicists and authors would add rd a 3 category that will include right to peace, self determination, common heritage of mankind principle, even the right to clean environment should now be considered as part of human right, the right to development and even the rights of minority, belonged to the 3rd generation. But if you look at universal declaration of human rights, there are only 2 generations mentioned there. Now, we dont have to go over each of the specific rights. What is important here is the universal declaration of human rights is not a legally binding instrument. If you dont follow a provision of the declaration of human rights, there is no legal sanction, you cannot sue a state for example for violating the universal declaration of human rights because it is not legally binding instrument. This is just through a resolution by the general assembly. Its not a covenant that had been really approved by the State with intention to make them binding. These are just some sort of declaration of policies. Murag reminders that State should be guided by these basic tenets of human rights. Pero kita under our constitution, there is the Commission on Human Rights. There are prohibitions under the Universal declaration of human rights that are also customary international norms. Some even have the character of Jus cogens or Erga Omnes prohibition. Jus Cogens is more general. It is a peremptory norm where no derogation by any state is allowed. Erga Omnes still part in concept of jus cogens. But it is more specific. It is a duty of the state to the community.
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For example, prohibition against torture. It is found in universal declaration of human rights but it also an Erga Omnes norm. Same is true also on the prohibition on slavery and racial discrimination. The last part will be devoted to International Humanitarian law. It is a relatively new field of international law. So first, the documents governing IHL. You have the four Geneva Conventions and ad additional protocols. First one is in 1949, 2 in 1977, 1 in 2005. First two refers to the amelioration of the condition of the wounded and sick in the armed forces. Same thing with the second, refers to the amelioration of the condition of the wounded and sick, shipwrecked in the armed forces at sea. Treatment of prisoners of war is dealt with the third Geneva Convention. The fourth deals with the civilian in time of war. However the fourth was too general in the enumeration of protected persons and objects so states decided to add two additional protocols. There was the additional protocol in 1977 that deals with protections of victims of international armed conflicts and the second one deals with the protection of victims of non international armed conflicts. In 2005, there was additional protocol 3 about distinctive emblem. It is of little legal significance. Binuang if ipangutana sa BAR about emblems. Jus in Bello and Jus in Bellum First one refers to the rules governing the validity of engaging in war. Meaning, whether it is justifiable to engage in war. We learned that as a general rule, we cannot engage in war because the use of force or even the threat of using force is prohibited. UN charter recognizes the right of self defense. So it is possible to engage in war to exercise the right of self defense, individually or collectively. That is not the concern of IHL. WON engaging in war is lawful or unlawful from the start for as long as there is an ARMED CONFLICT then the IHL will apply. This is a misnomer. The validity or invalidity of war is irrelevant. As long as there is an ARMED CONFLICT then IHL will apply. But IHL applies only to international armed conflict and non international armed conflict. But first you have to know the meaning of Armed Conflict. (wa niya gi define) If you say IHL will apply, that means that any derogation of IHL, the Geneva Convention and protocols, then that person shall be under the jurisdiction of International Criminal Tribunal. So a person may only be subjected to the jurisdiction of the International Criminal Tribunal if there is an armed conflict. If there is armed conflict (international armed conflict or non international armed conflict) then IHL will not apply. But sir there is still a conflict in jurisdiction, it is very important here that you take note that we also have DOMESTIC criminal jurisdiction. So when a person is brought before the international criminal tribunal which by the way is created either as an ad hoc tribunal or as of now, already established international court by their own statute. Read it. So when a person is brought before the international criminal tribunal then it constitutes a limitation on the power of the state to punish criminals within its territory. So what is an armed conflict? An armed conflict exists whenever there is a resort to armed force between states (international armed conflict) or protracted armed violence between governmental authorities and organized armed groups and armed violence of such groups within a state both if which must be protracted. Protracted means conflict between the government authorities and organized armed
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groups. Unprotracted conflict between such organized armed groups within a state. These situations now refer to non international armed conflict. So what are the armed conflicts not covered by the IHL: short leave insurrections because it is not protracted, riots and other similar disturbances because they can be considered as conflict internal conflict. If you resort for example to mass killings during a riot even a short leave insurrection that will not necessarily give an International Criminal Tribunal either created as an ad hoc tribunal or the International Criminal Court for there is lack of armed conflict as an element. So let's take a look at international armed conflict an armed conflict is international if it takes place between two or more states. This is easy as long as the conflict is between two or more states it is an international armed conflict but take note however that non international armed conflicts can become internationalized armed conflicts. It is still international but for purposes of distinguishing it from the real international armed conflict it becomes internationalized by the participation of another state in such conflict. If there are two armed groups for example engaged in a protracted conflict if a third state gives support to one of the armed groups that support given by that foreign state will change the character of the non international to an internationalized armed. Hence it will be covered by IHL. Take note that wars of national liberation are considered international armed conflict because this is an exercise of the right of people to self determination. A group of people going against a racist regime if there is a war regardless of any intensity it becomes an international armed conflict as long as it is a war for national liberation because again it is an exercise of the right of people to self determination. The prohibition against any act that will suppress the right against self determination is also erga omnes prohibition. Because it is erga omnes prohibition so it is part of international customary norm. Hence because it is covered by international customary norm then it must also be covered by an international law which is IHL. This is governed by Geneva Conventions and protocol 1 Non-international armed conflict. It is not international and it is not also internal disturbance. IHL was established for protecting civilians and civilian objects in times of armed conflict. To protect civilians not the combatants because the civilians are the real victims. August 1 convention on class termination has become effective. Bombs with bomblets is not allowed. One of prohibitions of IHL is the use of unacceptable means of warfare such as use of weapons that can cause unnecessary suffering like biological weapons those are prohibited. Because indiscriminate use of such weapons will also injure innocent civilians. This is the reason for IHL protection of civilians. It is important to distinguish non-international armed and internal because we must respect the jurisdiction of the state only when it is widespread will IHL apply. Armed violence must be protracted and organized armed groups these are the 2 requirements 1.) organized armed groups 2.) Protracted. Hence riots are not non-international armed conflict because they are not organized and it is not also protracted so IHL not applicable. IHL requires two tests for distinguishing internal and non international. 1.) Intensity of Conflict 2.) Organization of parties. 1.) Intensity - consider seriousness of attack if a large number of people and a long period of time it becomes protracted. 2.) Organized - see location, ability to deliver arms, whether scattered or not. The term used if it is not or lesser than international armed conflict it is simply called "disturbance" hence "internal disturbance"
Who are protected by the IHL 1.) Civilians 2.) Civilian Objects. Civilians - persons who do not belong to armed forces and are not combatants. Combatants not wearing uniforms and killed are nuances for determination of civilians but just take note that civilians do not belong to armed force and do not act as combatants. Civilian objects are those other than military objects. Military objects are those whose location object purpose or use make contribution to military action and insure military advantage. Doctrine of proportionality when civilian object is attacked it becomes a military object example a bridge that can become a military object because of necessity if the purpose is to insure military advantage that is a military object. Example if the only entry possible is through a bridge if you destroy the bridge to insure your military advantage the bridge becomes a military object. SO even civilian objects can be considered military objects. Read ICC statutes because almost all international criminal principles are incorporated there before ICC there were ad hoc tribunals the principles of these tribunals are incorporated in the ICC. Criminal responsibility of superiors - problems were encountered in suing war criminals. When superiors were sued like the case of Yamashita prosecuted for war crimes his first line of defense were that it were the acts of his subordinates. So it becomes difficult to sue the superiors because they claim that it was not upon their order. In order to resolve this difficulty and to hold superiors liable for their failure to take measures to prevent atrocities. This gave rise to principle of superior responsibility- making superiors liable for the acts of their subordinates for failing to exercise control upon them. The term is generic which encompasses command responsibility which only applies to military commanders. For leaders of regular armed force use command responsibility for leaders not of regular armed forces use superior responsibility according to Sarmiento but to be more accurate the principle of superior responsibility also applies to the former because it is an all encompassing principle. Take note that the element of command must be exercised de jure subordinate relationship must exist. In IHL superior responsibility use only for non-military commanders. The difference is that mere authority may make civilian superiors liable under superior responsibility unlike the command responsibility that does not make them liable. But you do not really have to distinguish them that way just be able to differentiate command responsibility and superior responsibility again command-military commanders, superior- usually civilian leaders but also covers military commanders. Subordinate's liability- merely following order is not a defense this is the general rule. It only becomes a defense when 1.) legal obligation to obey superior of government 2.) he did not know the order was unlawful 3.) the order was not manifestly unlawful. However in IHL the order to commit genocide is of course manifestly unlawful. LAW ON PUBLIC OFFICERS Take note of the varying topics on law on public officers and election laws. Public Office Is Not Indeed A Property Very quickly. Public office is not indeed a property and so therefore public office cannot be inherited by the heirs. But in what instance may a public office be considered a property. To the extent that it involves the salary of the de facto and de jure officers excluding usurper. It came out many times in the bar exam. When there is a dispute between two conflicting persons as to who may be entitled to an office, to that extent you may also consider the office as a property because there has to be compliance with due process.
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For example, your office had been abolished, you no longer have your job, then you claim that you have vested right in the office, you cannot do that because public office is not a property so you cannot claim violation of your due process. But if the issue is between two contending parties as to who is entitled to that office then due process must be complied with because to the extent the office is considered a property. De Facto Officer vs. Usurper
Civil Service Law, there is such thing as midnight appointment; it is prohibited when it is mass appointment pero individual appointment even before the expiration of term is not per se prohibited unlike sa midnight appointment as a prohibition on the part of the president of the Philippines, even single midnight appointment is prohibited pero kung local,dili na siya prohibited especially if there is reason for that pero kung mass appointment is not allowed, according to the Supreme Court the appointing authority should be held liable. PARDON
A de facto officer, of course, has a color or right of title to the office, usurper, wa gyud class. For example, you have been appointed to an office but you lack one of the qualifications, until such time that you were asked to step down, you were considered a de facto officer or the office has been declared as illegally created and you have been there for five years, you have been a de facto officer. Or in an election case, you have been declared as the winner but the protest has been decided against you, then during that time that you have been holding the office, you are a de facto officer. Ang USURPER class lain, wa gyud siya colorable right or title to the office, as when somebody will just hold the office and proclaim himself as the new director without any lawful appointment, he is a usurper. Nya mumatter na class sa salary of a de facto officer because the rule is a de facto officer is entitled to the salary, either to the salary already received or salary that he will be receiving on the basis that of course had rendered a service; a usurper is not entitle to any salary, if he receive any salary then he shall reimburse the government for that. Exception to the rule that a de facto officer is entitled to the salary. Exception to the rule that a de facto officer is entitled to the salary is when there somebody who is an incumbent. So dunay situations na naay incumbent nya naa sad situations na walay incumbent. For example, you have been appointed without the necessary qualification, de facto ka, there is no incumbent there or illegally created ang office, you cannot talk of incumbent there, you are entitled to the salary, you have rendered service; the basis is equity. But in a case of elective official and the title to the office has been disputed, one is a de facto, the other is a de jure, the de facto officer is not entitled to the salary if there is an incumbent, it the incumbent who is entitled to the salary. Asa man kuhaon sa incumbent ang salary? Two situations: 1) from the de facto officer; 2) pwede sad sa government if the government still gave the de facto officer the salary after learning of the defect of the de facto officers right to hold the office. Salary of De Facto Officer Theres a distinction between salaries of officers whose appointment is later disapproved. If the basis for the disapproval is not violation of Civil Service Law, like for example it has been approved by the Civil Service Commission, on the basis that the appointee lacks qualification, the appointee is entitled to salary, he may be considered as a de facto officer there. This one is very important, if the appointment is in disregard or in violation of Civil Service Law, hala, ang appointing authority class maoy liable, dili ang government, personal liability of the appointing authority. What happened here is after election, napildi ang City Mayor, mass appointment dayon siya class, midnight mass appointment is prohibited in
What is the effect of pardon? Pardon shall not work the restoration of the right to hold public or the right of suffrage office unless it is expressly restored by the term of the pardon, that is very basic. The right to hold office, the right of suffrage is not automatically restored; it should be expressly stated in the terms of the pardon. But in law on public officers, we deal with whether, after the pardon, the pardonee can demand as a matter of right the public office that he was holding after he had been removed by reason of the conviction. Theres a famous case Monsanto vs Factoran. Pwede ba after siya gipardon, lets say, City Engineer, convicted of a crime, removed from office, pardoned, balik sa City Hall, I demand that I be restored to my position as a City Engineer, can he do that? Answer is no, he must reapply and undergo the usual procedure required for a new appointment. Kung dawaton ka then it is as if you have recovered your office, it is not automatic. Another concern is back wages. Entitled ba to back wages? Still the same case of Monsanto vs Factoran. Pardon looks to the future; you already know that, thats very basic, so not entitled to back wages. Appointing Authoritys Discretion The appointing authority has all the discretion, it means that the appointing authority is given ample discretion in the selection and appointment of qualified persons. What is the next-in-rank rule? This is the relevant topic. The next-in-rank is only a rule of preference; it will not bind the appointing authority for as long as the appointing authority followed the requirement for appointing the appointee, that is that the appointee is really qualified; it does not matter if some other candidates are more qualified; you cannot question the discretion of the appointing authority there. So what is the rule of the Civil Service Commission in the appointment? Take note that it is limited only to attestation. Came out many times in the bar exam. Unsa may meaning anang attestation? The authority of the Civil Service Commission is limited only to determination of qualification and civil service eligibility of an appointee. The Civil Service Commission cannot disapprove an appointment on the mere ground that somebody else is qualified. The only basis by which the Civil Service Commission can disapprove an appointment is when it finds that the appointee lacks qualification or eligibility. Kuha class? Appointment vs Designation. Appointment is an appointment to an office while designation is only an additional duty, job or function therefore, if you are merely designated to perform a particular function, that designation maybe revoked anytime for there is no security of tenure in designation. Career vs non-career service. Exceptions to competitive examinations. By the way dont get confused, kani sila exceptions sa civil service
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requirement on competitive examination; policy determining, primarily confidential and highly technical positions. Although they are exempt from competitive exam, they cannot also be removed without cause .You cannot remove these individuals without cause. Career executive service. No security of tenure except when issued by the President. Take note of that. ELECTION LAWS AUTOMATION SYSTEM Note: Refer to the law and related COMELEC Resolution. The AUTOMATION SYSTEM, class, is this year last May 2010 wasnt actually the first. There was already the application of the optical mark reader (OMR technology) in 1996 autonomous region elections and in muslim Mindanao. Then there was also an implementation of ___ automated system in 1998 national and local elections. In fact, under the automation law, it is required that there should first be an implementation of an automation system before we can have it nationwide. We have already complied with that one. Well go to the prerequisites of full automation later on. So, the first nationwide automation was just last May of this year. Note that there are different kinds of machine that may be used. We opted to choose the optical scan or the pcos. Lets not talk about this, theres no law involved here (shorts ui) The one in the US is different because they use touch screen. (kebs!) In our case we still make sure that our system is paper-based. There were of course two reasons why we opted for paper-based and then mere optical scan. Number one consideration, budget. Second one is, many wanted that there should be at least a back-up system in the form of manual counting in case of failure of machines. Basic Components Of The Automated Election System This is now provided for by law under the automated election system. We have the following components mandated by law: 1) the paper-based automated election system, 2) provision for electronic transmission using public telecommunication networks, and 3) overall project management. Component 1 consists of three more subcomponents in election management system, the picos, and another machine in consolidation that is used in the canvassing. These components were actually complied with, and all the bidders must have also complied with these three. These are in 9369 section 7, the so-called minimum system capabilities. If in your bar exam, if 9369 will be included, maybe for one you will be asked the basic components of the automated election system. You must be able to give three components. And maybe you will be asked to give at least 3 minimum system capabilities. There are so many of them. Lets go over them very quickly. Minimum System Capabilities Adequate security against unauthorized access. How was this complied with? Through password and the thumb mark of the chairman of the BEI. Accuracy in recording and reading of votes, as well as in the tabulation, consolidation, canvassing, electronic transmission and storage of results. How was this complied this? We had field testing before Election Day to determine accuracy.
Error recovery system in case of non-catastrophic failure of device. System integrity which ensures physical stability and functioning of the vote recording and counting process. Provision for voter verified paper audit trail (?) which specifies or records all events that transpired in the machine. So, if somebody opened or pressed the machine at this time, it will be recorded there. For purposes of election contests later on or pre proclamation controversy, to make sure whether or not the process had been followed. Accessibility to illiterates and disabled voters. That is why I asked you to read the 2010 general instruction. Data retention provision. Do you know that each time the ballot is fed in the machine, the machine will also capture and store the image. Mura na syag camera. The ballots are recorded and then archived. How will the comelec determine whether the system complies with the mandate of the law? There is a checklist whether or not a demo succeeded. Does the system allow manual feeding of the ballot into the pcos machine? Does the system scan a ballot sheet at the speed of at least 2.75 inches per second? Is the system able to capture and store in an encrypted format the digital images? (unsa naman ni ui!) Does the system require authorization and authentication of all operators, such as, but not limited to, usernames and passwords with multiple user access levels? Does the system employ error handling procedures?
According to the comelec, they were able to obtain 100% accuracy in the testing. But the minimum requirement is only 99.995% One board of election inspector for one clustered precinct has an expected maximum number of voters of 1000, or it could be less. There shall be 3 regular members: the chairman, the poll clerk and the third member. Basis or methods for establishing identity of voter. There are also basis or methods for establishing identity of voter. It could be through the photo cam (?) Why is this important? In case of challenge of the voters. The next method of proving identity is the thumb mark. Kung walai picture, walai thumb mark, which is impossible, you have the signature. Preparation, testing and sealing of machine. You remember there is one machine per cluster precinct, not per precinct. (pobre!) At least 3 days before the Election Day, the law also requires testing and sealing (?) procedure. The public shall accomplish test ballots. Before the counting by the machine, there should be manual counting of the ballots first. Kung dili mu read correctly, it should be recorded that there was no 100% accuracy reading of the votes. Only those that complied with the accuracy requirement and other requirements will be sealed and be ready for the actual voting on the election day. Voting period.
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(Im sure this will be changed in the next election. The comelec is planning to reduce the clustered precinct to 500 max. of 600 instead of 1000) ..but exercising the administrative power of the comelec in the conduct of election, last election the 6 pm period was actually moved to 7 oclock. It happened in many places. The zeroing of the machine. There should be a zero report. Meaning, before mu dawat ug ballot ang machine, there should be printing of the zero report to show that there is no entry or vote in the machines memory. The canvassing and consolidation will be done electronically. If there is failure to transmit, although it is not provided for in the rules, the comelec allows the manual delivery of the memory to the canvassing venue. In your outline I only mentioned Resolution 8739, kindly print instead Res. No. 8786, which is the revised general instructions, dated March 4, 2010. This is how manual system of canvassing is done in the past: From the precinct level, you have municipal/city board of canvassers, you have provincial board of canvassers, and you have either Congress or comelec, depending on the position. Congress for Pres and Vice Pres, and for members of the HOR, you have comelec as national board of canvassers. How is canvassing done? Of course, through the use of the election returns, which will be transported through the municipal board of canvassers physically. Thats where the stealing of the ballot boxes can happen (haha mga tikasan!) Of course the objective of automation was to reduce the possibility of human intervention. So, if you transmit the data of the election return electronically then theres no more ballot snatching (sure??) The fear then was hacking. Then from the municipal/city board of canvassers, the certificate of canvass will then be transported physically to the provincial board of canvassers. At the municipal/city levels, there will be a proclamation of the positions in their levels, and then to the provincial board of canvassers for the provincial positions. Even the certificate of canvass from the provincial board of canvassers nationwide will have to be transported physically to the national board of canvassers to Manila. There is the simultaneous transmi ssion. I dont know if it was complied with perfectly. The idea of encryption, kanang itransmit they dont travel in figures. Ang data nga i -transmit, encrypted diay na sila. So, this is the reason why they said it is hard to hack. Audit log can be made the basis for election protest if there are irregularities in the performance of the machine (aku ra ning own words ky daghan kau gi storya si sir) These are security features: the paper ballot, ballot digital image, data storage device, transmitted results and hard copies of election results. Then theres a continuity plan for those who initially feared failure of elections. d ku kasabot sa sumpai. Murag wrong grammar, or d lang jud ma dungog. Sori) Having read the law on automation, do you ever think that there will be failure of election? So, there are back up mechanisms to prevent failure of election. Number one of that of course is the fact that it is paper-based. Failure of Elections So, what is meant by failure of elections? Nobody emerged as winners. Or maybe there was no election held, or suspended and did not resume. So, it resulted in a non
declaration or proclamation of a winner. That is the essence of failure of election. But if we can determine or proclaim a winner through the ballot (that is why it has to be paperbased), then there will never be failure of election. The causes of course based on the omnibus election code: fraud, violence, terrorism, force majeure, analogous causes. The omnibus election code is still effective but in some parts of the law that have already been covered by 9369, wala na. Number one of that are the rules on the appreciation of ballots. Who says there is failure of elections? It is within the authority of the comelec en banc, because it is an administrative function on the basis of a verified petition by any interested party and after due notice and hearing. What shall be done after the declaration? There will be an election not later than 30 days after cessation of cause of failure to elect. Failure of election may be declared nationwide or in parts of the country only. Now, what are the important features the revised general instructions? So this is comelec resolution no. 8786 that amended or revised the December 29, 2009 general instructions for the board of election inspectors. In section 3 of resolution 8786, there are grounds for disqualifying members including the chairman of the BEI. You know of course the BEI is the one manning the conduct of the election at the precinct level at the polling place. Lain sd tong board of canvassers. The following are the disqualifications: No person shall serve as chairman or member of the BEI if xxx he or his spouse is related within the 4th civil degree of consanguinity or affinity to any member of the same BEI or to any candidate to be voted for or to the candidates spouse. The importance here for law students is the non observance of this disqualification rule is an election offense. Absent members may be ordered arrested. The basis however is that there should be the honest belief of the attending members of the BEI that the member who is absent did so for the purpose of frustrating or obstructing the functioning or performance of the duties of the BEI. Thats section 6 of the revised general instruction. Before the members and the chairman of the BEI can serve as such, the election officer must have already issued an appointment and that the chairman and the members have already taken oath. So, appointment plus oath before they hold the office. Why would this be important? Later on, well study the new grounds for pre proclamation controversies. You will see there that the ground for pre proc would have to be, aside from composition, illegal proceeding of the BEI. So, you have the composition for example. These members served as BEI members without the required appointment and oath. Testing and sealing shall be recorded in the minutes and in fact the minutes will have to be transmitted to the election officer and the other one shall be kept and deposited in the ballot box. Section 8. Limitation to the role of the support staff. So, the support staff shall only be limited to technical support. Take note, the support staff cannot participate in any deliberation in the BEI nor vote in any question that may arise. Section 9. The authority of the BEI includes among others, the authority to maintain order within the polling place. And in fact upon issuance of an order necessary to maintain peace and order in the polling place and a person disobeys, what can the BEI do? He may ask, if hes an officer, that the
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disobedient party be held in custody until adjournment of the meeting (?) The exception to that however, the disobedient person may still be allowed to vote even if he will be held in custody. He shall not be denied his right to vote. The maintenance of order has not been limited to voting related incident. Like the lining up for example, mag gubot, the BEI should exercise this power. The meeting of the BEI shall be public and should be held in the polling place. And the BEI decides by majority vote without delay. Section 10. Then of course, members of the BEI are prohibited from engaging in any partisan political activity. Thats also the rule before. The only way by which they can participate in political activity is when: number one, they discharge their duties and second, to vote. Section 14. There should be a Deped supervising official. Whats the role of this person? Among others, aside from supervising the setting up of voters assistance, supervise crowd management at the entrance area of polling places. Who may be given the privilege to have two watchers to serve alternatively? We have each candidate of course, the registered political parties or coalition of political parties registered with the comelec, and fielding candidates in the election. However, senators and candidates of local legislative assemblies (like members of the Sanggunian Panlungsod, Panlalawigan, Bayan..) belonging to the same slate (?) shall collectively be entitled to one watcher. Section 15. Section 17. What are the rights of the watchers? They have the right to witness and inform themselves of the proceedings. Take notes or even photographs of the proceedings or incidents during the voting and counting of votes, as well as the generated election returns and of the ballot boxes. Watchers have in fact been trained how to file protests against irregularity and obtain certificate of the filing of the protest and can even demand for the resolution of the protest. However, in the same section, the watchers are prohibited from speaking to the BEI, or to the voters, or even among themselves which would impede or disturb the proceedings. But of course when you file a protest, you have to speak to the BEI members, that is understood. The meaning here of the prohibition is any other communication that would disturb the proceedings. What happens if voting had already been closed? Will voters lining up still be allowed to vote? Answer is yes, those within 30 meters in front of the polling place may still be allowed to vote. Asa man nang end sa polling place? Kanang gate sa school. Section 23. Who may vote? Those whose names appear in the PCVL or EDCVL (?) or pwedeg wa; those whose registration records have not been cancelled or deactivated. Section 24 and 25. Grounds to challenge voters. Section 24 provides for three but you have to add Section 25. Two grounds (in general): 1) that the voter is illegal, 2) that the voter is legal, but committed illegal acts. Section 24. Ground for challenge on ground of illegal voters: 1) unregistered, 2) if you use the name of another (flying voter), 3) suffering from any disqualification. Section 25. Illegal acts: a) receives, expects to receive, paid, offered, promised to pay, contributed, offered or promised to contribute money or anything of value as consideration for his vote or for the vote of another.
Basis for identification of voter is another provision that you should consider here. Finally, the rules and prohibitions during voting. Sections 27 to 33. Special mention here is the preparation of ballots for illiterates and persons with disability. How are they going to vote? Go to section 31. No voter shall be allowed to vote as illiterate or person with disability unless such fact is indicated in the EDCVL (?) If so, he may be assisted in the preparation of his ballot by any of the th following: 1) relative within the 4 civil degree of consanguinity or affinity, 2) any person of his confidence who belongs to his household, 3) any member of the BEI. The person assisting, except the member of the BEI, is limited only to three times. You can only assist not more than three times. COMELEC RESOLUTION NO. 8804 AES DISPUTES RULES Note: Refer to the COMELEC Resolution. Question: What happens to the 1993 COMELEC RULES OF PROCEDURE, more particularly COMELEC RESOLUTION 2105, 1993? This is still applicable. You do not dispense with the 1993 COMELEC RULES OF PROCEDURE. But if it is already covered by 8804, then the latter applies. If you notice, the 1993 RULES also cover proceedings such as petition to cancel COC, annulment of list of voters, it is still there under the 1993 COMELEC RULES. But if it refers to something electronic (do not use the word COMPUTERIZED, but only automated), then we use 8804. apply only to disputes under the automated election system, insofar only as they affect the automated election system, using the PICOS and shall cover preproclamation controversies and election protests. The provisions here are very minimal affecting the 1993 RULES. the AES recognize the application now of the ROC, the 1993 COMELEC RULES OF PROCEDURE, and the rules on electronic evidence. So when there will be a hearing, and presentation of evidence, insofar as the requirement by the electronic evidence on the authentication of electronic document, the law on electronic evidence shall be applied. So there will still be authentication of electronic evidence during the trial. How shall they be applied? By analogy, suppletorily, and whenever necessary, practicable and convenient. Its for the COMELEC to decide. The old COMELEC rules of procedure refer only to the ROC recognized as applicable by analogy and by suppletory character. Two Kinds of Election Returns The first one is the electronic election return, and the second is the printed election return. So the electronic one is recognized as a kind of election return. Its somethingthat you cannot touch, but it is still an election return. The electronic election return refers to the copy of the electronic election return in electronic form, generated by the PICOS machine that is electronically transmitted to the BOC for official canvas. Simultaneously of course with the COMELEC back-up server, and the dominant majority party etc. The other one is the printed election return, which refers
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to the copy of the election return printed by the PICOS machine on a paper and authenticated by the manual signatures and thumbmarks. So the one that looks like the receipt, you call it the printed ER. Theres the electronic ER. What is a Statement of Votes or SOV? The rules do not mention of COV (Certificate of Votes). Nangutanakosa local COMELEC unsa man? Magandam mi ug COV? becauseangmga lawyers, paralegals man actually angmag prepare ug COV, paramaopirmahansa Chairman of the BEI. Andamonmanadaannimu. Silanamag fill-up. Its not a paper or a document coming from the COMELEC or the BEI. That is supposedly prepared by the candidates, unyamaonalang fill-upansa Chairman of the BEI. Inigpirmaniya, you can use that as evidence of tampering or fraud. That was before. Now, we asked the province, wala nana. Ngutana sad tasa legal department, ingnon sad ta there is no prohibition. So anyway, you dont see that in the Rules. Indeed there is no prohibition. But as it happened last election, we were not able to compel the members of the BEI to fill up the COV, kaywalanasaila guidelines. Anyway, useless mansadniang COV. Unlike before, by jurisprudence, it can be used as proof of tampering. You have only the following documents SOV, Certificate of Canvass, Certificate of Canvass and Proclamation. Apart from of course the ER. What is the SOV? It is likewise in electronic and printed form, generated by the canvassing or consolidating machines or computers during the canvass proceedings. Then you have the COC, also in electronic and printed form. This is the significance of the electronic COC: it is the official canvass result. The basis for the proclamation of the official canvass? Its the electronic form. The COCP, the official document in printed form, and it is the only document that does not come in electronic form. This is the official document in printed form, which contains the names of all candidates who obtained the highest number of votes, in a particular constituency and certifies to said candidates proclamation as winners. There are two kinds of storage device DATA STORAGE DEVICE and BACK-UP STORAGE DEVICE. The storage devices are used to verify the accuracy and correctness of election data. By the term electronic document, we refer to either of the following: a) picture-image of the ballot, b) electronic copies of the election returns, SOVs and the COCs, and c) other eelcctronic data relative to the processing done by the PCOS and the consolidation machine. The PICOS, maonaangsa precinct, the consolidation machine, maonasa canvassing. Its actually a computer. The PICOS is a machine. There is the consolidation machine. Its actually a computer that receives, its not a laptop. But it looks like one, though its only purpose is for consolidation. Pre-Proclamation Controversy
The rules now recognize only two grounds, although in an obiter dictum in BANAT vs. COMELEC in a 2009 case, the SC also added to correct manifest errors and even the authentication of election returns. The two grounds are illegal composition of the BOC, and illegal proceedings of the BOC. The grounds for correction of manifest error and even matters affecting electronic transmission and receipt of the election returns or those affecting the Certificates of Canvass seem to no longer be considered grounds for preproclamation controversies. Under the old rule, preparation, transmission, receipt, custody and appreciation of election returns. So anything that has something to do with the election returns. Karonduhana man lang. Illegal composition any of the members including the IT capable person dibaduna IT capable person nai-assign? Naa sad siyay qualifications under the general instructions if they do not possess the required qualifications and appointment. What is important here is including the IT capable person. So dililangdiay referring to the Chairman and the members, but also the IT capable person. The term illegal proceedings mean when the canvassing is a sham or a mere ceremony, the results of which are predetermined or manipulated, of the fabricated election returns, perounsaon man pag fabricate sa ER ngaang basis of the canvassing is the electronic! Unsaon man pag fabricate ana? Nagliboggyudko kung unsaniang precipitate canvassing, b) terrorism, lack of sufficient notice to the members of the BOC and improper venue. You know of course that the Meeting Of The BOC, the place is stipulated in the law. As to the process, verified petition is required, to be filed either before the BOC concerned (if you question the composition or the proceeding of the BOC) or with the Commission. When should it be filed? Immediately when the BOC begins to canvass or acts as such, at the time of the appointment insofar as qualifications of the members of the BEI and the Chairman are concerned, and immediately when the proceeding becomes illegal, when the basis is illegal proceeding. Upon the filing of the petition, the BOC shall immediately announce the fact of the filing and the ground of the filing of the petition, and shall resolve the same within 24 hours and the resolution be reduced in writing. If it is filed with the BOC, the decision may be appealed to the Commission within three days from issuance, by notifying the BOC of the intent to appeal through verbal and written verified notice of appeal. You file with the COMELEC. The notice of appeal shall not suspend the formal proclamation of the official results of the election until the final resolution of the appeal. If filed directly with the Commission, the COMELEC en banc shall decide the petition within 5 days.
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The Rights Of The Candidates And Political Parties The rights of the candidates and political parties during the canvassing are: a) to be present and b) represented by counsel. If there are several lawyers, only one counsel is allowed to argue for the candidate or the party and the BOC may impose time limits for the oral arguments. The basis of the canvass shall only be the electronically transmitted result. Even if there will be discrepancies in the transmitted results and the printed ER shown to the BOC, it cannot stop nor suspend the canvassing or the proclamation. The filing of the pre-proclamation shall not suspend the receipt by the BOC of the electronically transmitted result from the precinct. It would seem that nothing can stop the proclamation. The most that you can do is perhaps file a petition to annul, but that would still not prevent precisely there has to be a proclamation first before you can file the petition to annul on ground of irregularities. Election Protests The COMELEC is exercising not even quasi-judicial functions. Realistically speaking, it is exercising judicial function. If it is exercising quasi-judicial or judicial function, the COMELEC in division shall have jurisdiction to entertain the election protest or any action that is either judicial or quasi-judicial. It is a requirement that it should be in division first. A decision rendered by the COMELEC en banc may be had only after an M/R from the decision of the division. However, in certain cases that do not require the exercise of judicial or quasi-judicial functions of the COMELEC, it may be decided by the COMELEC en banc. For election protests, kay judicial or at least quasi-judicial, then it is by division. Jurisdiction is regional, provincial, and city officials. Regional we refer to the Autonomous Region, so COMELEC has exclusive original jurisdiction over positions in the AR of Muslim Mindanao, provincial and city officials. The subject of the contest may either be elections or returns of the elected officials. The new COMELEC rules do not mention grounds, leaving us to refer to the 1993 Rules such as a) fraud, b) irregularities, c) terrorism committed before, during or after the casting or counting of votes. Those are the same rules.
Verified, certificate of non-forum shopping, directly filed with the COMELEC and done personally, and payment of filing fee within the period within which to file the protest, which is ten days from proclamation. Full payment. It is jurisdictional, according to jurisprudence. Non-payment is grounds for dismissal. Then answer should be verified. Effect of failure to answer, very much similar to ROC in Remedial Law, but take note of two situations if the protest does not involve ballot recount, the protestant may present evidence ex parte. But if the protest involves a ballot recount, with or without the answer, the Commission shall order the recount of ballot or retabulation of election returns. Preliminary conference is mandatory, and there are adverse consequences of non-appearance by either the party or the lawyer. In the case of the protestant, the protest will be dismissed motuproprio. In case of the protestee, the protestant will be allowed to present evidence ex parte. Decision shall be rendered 30 days from time it is submitted for decision, and the usual rules, it is submitted for decision upon the filing of the last pleading, if for example a memorandum has been asked to be submitted, then upon the filing of the last memorandum. The winner shall be the candidate who obtained the plurality of the valid votes cast. The COMELEC in deciding election protests, is also guided by two principles every ballot is presumed to be valid unless there is clear and good reason to justify its rejection. This is the presumption of regularity and validity of the ballot. The object of election is to obtain the true expression of the voters. IMPORTANT AREAS OR BASICS IN ELECTION LAW Construction of Election Laws. Remember the will of the electorate principle? I think that one important principle here is the one mentioned in (sic) vs. COMELEC 2003. There are rules in election laws that are either mandatory or directory. But this may be changed upon the determination of the will of the voters, and that is when somebody has already been proclaimed or that the votes had already been ascertained. Mandatory provisions should be construed strictly before the determination of the will of the voters. But the moment we determine already the results of the election and therefore the will of the electorates, the mindset of the court is to relax what are supposed to be rigid rules in the elections. Like in the case above-mentioned. Defects even in the COC, they should have been questioned before the people cast their votes. If you question any defect in the COC of a person who had received the plurality of the votes, it will not be entertained. The people have already spoken. This must always be after election, not before. Certain provisions independence: that ensure the COMELECs
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Who can be a protestant? This one is very interesting under the new rules remember the old rule? Who can be a protestant? A candidate who has filed a COC and had been voted for in the election. Under the new rules, a protestant is any candidate who was voted for in the same office and who received the second or third highest number of votes. - not any candidate in other words among the next four candidates following the last rank winner duly proclaimed, as reflected in the SOV. This one is clearer, dililang anyone can file. In the case of single slot positions the second or third highest number of votes and in multi-slot, the next four candidates following the last rank winner duly proclaimed, Procedural and formal requirements

a) b) c) d) e) f)
fixed term of seven years. This is after the appointment of 753. After this, seven years nasilatanan without re-appointment. None of the members can be appointed in a temporary or acting capacity. Once appointed, it should be permanent. Salaries shall not be decreased during their tenure even if fixed by law to prevent undue influence on the part of Congress. Cannot be removed except by impeachment. Only the COMELEC appoints their own officials and employees. Fiscal autonomy. Approved appropriation shall be automatically released.
original jurisdiction. But if it is quasi-judicial, tanan class. Even the position of the President, VP, members of Congress questions affecting elections, bastadilang election contests. COMELEC has jurisdiction. So for example, petition to cancel COC of a presidential candidate. Election contests presuppose that the proclamation is over, so all matters affecting elections and affecting any candidate, before they become election contests, COMELEC has jurisdiction. Before the controversy becomes a contest, the COMELEC has jurisdiction over all questions affecting the elections and all candidates. If you look at Article IX of the Constitution, what is the remedy available to the aggrieved party of a final order, ruling or decision of the Constitutional Commissions? In the case of COMELEC, what is the remedy? It is certiorari under the concept of Rule 65, but governed by Rule 64. Concept the same, meaning grave abuse of discretion amounting to lack or excess of jurisdiction, but if you follow Rule 65, how many days? 60? But if you follow Rule 64, which is the applicable rule, 30 days. Where is that applicable? Only orders, rulings and decisions rendered in actions and proceedings before the COMELEC, in the exercise of its adjudicatory or quasi-judicial power. So if administrative siya, dili certiorari, Rule 64 to the SC. You go to the trial courts below. Okay, so administrative decision. -------------------------------------------------------------------------------We already mentioned the cases of Salva and Brillantes last meeting. Lets go to some of the cases here in the outline, original jurisdiction over election contests involving elective regional, provincial and city officials. Jurisdiction of Election Contests Of course jurisdiction of election contests by election contest, we refer to that situation where one called the contestant or the protestant files a case against the protestee or contestee, I dont know if there is such a term. The objective of which is to claim the seat or post possessed by the proclaimed winner. There should be proclamation before there can be considered an election contest. elective officials covered It depends on the elective officials that we are talking about. If we talk about Barangay officials excluding SK, if we talk about Barangay officials we dont include the SK officials. If you look at them, they really look like Barangay politicians but they are not really Barangay officials legally speaking. In fact election for SK is not within the jurisdiction of COMELEC. The COMELEC only gives technical assistance. It is the DILG that has jurisdiction. Why? Because the COMELEC has jurisdiction over elections among others but if you talk about election, you are talking about that exercise of the people of their right of suffrage. Who will participate in SK elections? They are not yet qualified voters because they are below 18 pa man. So, they are not legally speaking exercising the right of suffrage. Because if you look at the meaning of the right of suffrage, you must have been qualified already as a voter. That means among others you are at least 18 years old. If you are not 18, although you vote, you are not legally exercising the right of suffrage so there is no election so to speak in SK elections.
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Provisions that prohibit and disqualify, if the candidate had participated in the last preceding elections, he is disqualified, and others. The powers and functions of the COMELEC. Our basis here is the provision in the Constitution. We have executive, quasi-legislative, quasi-judicial and judicial. On election contests, remember they are exercising judicial functions. The executive or administrative powers are Section 2 (1), (4), (5), (6), and (8) of Article IX (c). In quasilegislative powers, it is implied in the power to implement regulations and also found in Article IX-A, Section 6, that all constitutional commissions have the power to promulgate or issue rules to implement the mandate of the Constitution. Congress has the primary authority to regulate election, but insofar as IRR is concerned *MACALINTAL vs. COMELEC on absentee-voting law. Diba one of the questions there was about Congressional Oversight Function which has three types SCRUTINY like budget hearing, the second is ---- naputol. VETO is a violation of the doctrine of the separation of powers. Remember legislative veto? It may be done in two ways (1) Congress will provide for a system whereby the implementing rules of administrative agencies will only be valid if approved by Congress or (2) the IRR to be issued by the administrative agency will only be invalid if not approved by Congress within a certain period of time. In the case of MACALINTAL vs. COMELEC, the SC ruled that this cannot be done insofar as the COMELEC is concerned because COMELEC is an independent body. So that provision in the absentee-voting law that requires approval of the Congressional Oversight Committee of the IRR of the COMELEC was declared unconstitutional. Quasi-judicial function involves the duty of the COMELEC to decide except those involving the right to vote, all questions affecting elections. On questions involving the right to vote, the courts have jurisdiction to entertain this. Insofar as judicial function is concerned, the jurisdiction of the COMELEC, original refers to regional, provincial, city officials. You have to always be aware of the kind of function exercised by the COMELEC in a given controversy. Different rules will apply, especially appeal or certiorari to the SC. If we talk about election contests, COMELEC has jurisdiction over regional, provincial and city officials only,

Jurisdiction exclusive):
over
Election
Contests
(original
and
mentioned during the first meeting we had before the mock bar, about the 2 cases of Codilla and Limkaichong. In the case of Codilla, the general rule on the effect of proclamation was not applied because there was in reality no proclamation, while there was physical proclamation but the proclamation was considered invalid because there was non compliance of due process. Take note that a petition for disqualification would require the exercise of the quasi-judicial function of the COMELEC, and if its quasi-judicial, then you apply the basic rules of administrative due process. And of course opportunity to be heard is a requirement, since there was no notice on the respondent of the petition or decision. The SC said the proclamation was not actually valid although there was a proclamation. Therefore, it did not vest upon the electoral tribunal concern the jurisdiction over the issue. Because you remember, the jurisdiction of the electoral tribunal involves the election, qualification, and returns. This of course will come in only after a valid proclamation. In the case of Limkaichong, SC said the Codilla doctrine is not applicable because there is really need to go back to the general rule that mere allegation of the nullity of the proclamation will not divest the electoral tribunal of its jurisdiction upon proclamation. So if its only a mere allegation, meaning it cannot be substantiated with clarity that the proclamation is null and void so upon proclamation the Comelec will lose its jurisdiction. It will now be the electoral tribunal. So this is the one I mentioned earlier, the Alunan case. The COMELEC does not have jurisdiction over SK elections. Comelecs role in SK election is only supervision not jurisdiction. The Comelec only gives technical assistance to the DILG in the conduct of SK elections. The Relampagos and Angeles cases both deal on whether or not the Comelec can issue writs of mandamus, prohibition, certiorari in election cases. Has this been affected by the 2010 rules of procedure of the Comelec? Now take note, the 1993 rules of procedure of the Comelec was also considered as applicable either by analogy or suppletorily to the 2010 rules of procedure.
MTC for Barangay officials. RTC for Municipal officials. By officials we are referring to both the executive and legislative local elective officials. COMELEC for Regional, Provincial, City officials. Im talking about original and exclusive jurisdiction. For regional, provincial, city officials. By regional we refer to ARMM and if there would be CAR that should be included as well, we have the COMELEC. Im talking about original and exclusive jurisdiction. HRET for members of the lower house of the House of Representatives. For the senators, the Senate Electoral Tribunal. For president and vice president, we Presidential Electoral Tribunal which is actually the SC sitting en banc. The SC will exercise here a different function as an electoral tribunal, but we are talking of the same tribunal.
This is original, exclusive jurisdiction. For appellate, there is only one tribunal that exercises appellate jurisdiction and that is the COMELEC. The COMELEC has appellate jurisdiction over decisions of MTC and RTC in election contests. Now dont get confused. Decisions of MTC involving Barangay officials they are elevated on appeal to the COMELEC right away. Do not apply your remedial law procedure where decisions of the MTC will have to be appealed to the RTC. That is not the process. The decision of the MTC involving Barangay officials are appealed directly to the COMELEC. And then the decisions of course of the RTC involving municipal officials are likewise appealed to the COMELEC . The decisions of the COMELEC here are already final and executory, meaning final and unappealable. Meaning there is no more mode of appeal from the COMELEC to any higher court. So that tells you that the decision of the COMELEC can only be elevated not by appeal but by other means, and if there is no more mode of appeal, you know what we are talking about, it could only be certiorari to the SC under the concept of rule 65 although the governing rule is 64. In which case, instead the of the 60 day period under rule 65, you follow the 30 day period under rule 64. That is the jurisdiction as far as election contests are concerned. Of course, the decisions of the HRET and the senate electoral tribunal there is no mode of appeal also, it is still by certiorari to the SC. If there is an ongoing petition for disqualification, how will that affect the case upon proclamation? Or rather, if there is a pending petition for disqualification and the candidate had already been duly proclaimed, what is the effect on the pending petition for disqualification? The SC made an advice in the case of Faderanga and Aguinaldo, that it should be dismissed after the proclamation. But there is a caveat as always, without prejudice to an election contest that may be considered now as the proper remedy after proclamation. That is why I
authority to issue writs of mandamus, or certiorari
prohibiton
If there is no mention by that 2010 COMELEC Rules of Procedure about the authority to issue writs of mandamus, prohibiton or certiorari then the 1993 COMELEC Rules will apply. Meaning the COMELEC can exercise or issue writs of mandamus, prohibiton or certiorari in election cases. But only, and this is in the ruling of the Court, in the exercise of its exclusive appellate jurisdiction which refers to election contest coming from MTC and RTC. This is of course concurrent with the SC. According to the SC, the tribunal that takes jurisdiction first shall exercise exclusive jurisdiction over the case. SC normally mandates that there should be observance of the heirarchy of courts.
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What is the effect of the filing of an election contest if there is a pending pre-proc controversy? This one (may be referring to a pp slide) I think is not anymore relevant considering the changes in the concept and grounds of pre-proc controversy. I don't even find this relevant anymore: What is the effect of the filing of an election contest if there is a pending pre-proc controversy? As what i've said, pre-proc now does not cover any of those concerns involving preparation, transmission, receipt, custody and appreciation of election returns. Wa naman na. These are the concerns of candidates d ba? Not so much on composition or proceeding. Not unless you can also prove that the illegal composition or the illegal proceeding resulted to you losing in the election. But still very difficult to establish that. There's one though, Precipitate Canvassing. Pero unsa man meaning sa Precipitate Canvassing nga as I mentioned last time, the official basis for canvass is the electronic form. Unsaon man na nimo pag precipitate. Hacking but tell me if it can be done then maybe pwede na. MTC decisions involving barangay officials, as I mentioned earlier, will be appealed directly to the COMELEC and not to the RTC but this rule does not apply in the case of SK election. Meaning decisions of the BES(supervisor) are appealable to the RTC and not directly to the COMELEC. Members of the SK are not technically and legally considered barangay officials. Notwithstanding that the SK Chairman becomes ex-officio member of the Council. That does not make SK officials barangay officials. The very strict payment of the correct amount of appeal fee is jurisdictional. Non-payment during the period to file appeal or file an election protest is fatal. Party-List (gi discuss na ni ni Juge S.) I don't expect the examiner to ask you how to compute. Just take note of the basic rules governing allocations for the party-list seat. Of course the 4 parameters... the 20% allocation in Veterans had already been modified by Banat. In what sense? Instead of the OFW labor party case that its just a ceiling and need not be filled up, Banat said 'I fill-up na. Unsa may pulos if dili na I occupy and remaining seats dira.' Then the 2% threshold in so far as it will affect the computation of additional seats, under Banat there is already a declaration of unconstitutionality in so far as it will disallow the filling-up of all the seats for the party-list. 3 seat limit rule, this has not been changed. Its still the same. The concept of proportional representation has been changed by Banat. The Veterans formula as modified by Banat Let's take a look at the manner that this has been done. The Veterans formula as modified by Banat. You have to compute the 20% allocation, that is the first step. We still use the Veterans formula in order to get the 20% allocation. The formula is: # of dist rep X 20% / 80%. That's when you know the maximum seats for all party-list. The next step is to rank all the party-list based on the ratio but there is little significance to the ranking as enunciated in Banat. # of votes of the party-list / total votes cast for all the party-list. The rule is that those who have garnered at leat 2% shall be entitled to 1 (one) guaranteed seat and those garnering more that 2% shall be entitled to additional
seats in proportion to their total votes. But the meaning of in proportion to their total votes had been modified by Banat. Third rules is, determine the # of seats for the first party but not for the purpose of determining, according to Banat, the proportional representationfor those parties under the first party. Just determine the first party. If the first party gets 6%, then it is entitled to a maximum of 3 seats. This is now the Banat formula: % of the party concerned below the first party X remaining seat= share in the remaining seats. This rule applies presumably when the first party had already been given the 3 seats. There's no point including the first party here. What if the first party is not able to get the 3 seats, will it be included? It should be included according to Banat because the first party should likewise deserve an additional seat after all guranteed seats had been distributed. After that, assign 1 additional seat to all party-list groups. If there are still remaining seats after full distribution of 1 seat each, distribute the remaining seats to all but not give more than 3 until all reamining seats are allocated. Ang ako ra jud nabaw-an aning Banat class is the idea nga after the guaranteed seats, idistribute and remaining seats until ang 20% ma fill-up. I don't know how it is done mathematically. It is there in Banat. (basaha nlng ang case) Registered Political Parties As to the registered political parties, those parties that participated in the regular election, whether they can still be registered and participate in the party-list system the SC in the case of Bayan Muna suggested that registered political parties even coalitions can participate under the party-list system provided that they are able to register as representing these sectors contemplated by the party-list system law. Meaning if they represent the under-represented and the marginalized sectors in the society. In reality it is hard for these political parties to represent the interest of underrepresented and the marginalized sectors because these parties espouse on ideologies so its hard for the Liberal Party for example to represent what kind of sector. In Ang Ladlad LGBT Party vs. COMELEC, the COMELEC denied the registration of Ang Ladlad LGBT. Na sayop lang ang reason kay ni argue man on morality. Although duna kuno silay legal basis because under the paty-list law one of the disqualification is that you must not espouse or practice immorality. But it's highly questionable whether your sexual preference could be a subject of issues dealing with morality. Is it immoral to have a sexual preference that is not common to many? According to the SC, the way the COMELEC ruled against the Ang Ladlad is even evidence of them being marginalized and under-represented. Ang question sa COMELEC was: How may the group contribute to the national development in the crafting of national policies? Sayop sad ni nga question class kay for example in the area of Family Law they also have interest...
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What is the importance of this case? Before the understanding was the so-called marginalized and underrepresented are considered those enumerated under Sec 5 of the party-list law namely peasants, laborers, fishermen, women, youth, professionals and others. Before, Inclusio unius est exclsuio alterius. Ngano mag enumerate man ang law kung dili man na meant to exhaust ang marginalized sectors. That had been chaged. SC said, dili na limited to only the sectors enumerated under Sec 5 of the party-list system law. It's not the enumeration of all the sectors. It;s just samples of the marginalized sectors.
_end 0_o_
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