Public International Law
the Philippine extradition law.
I. Preliminaries / Concepts / Definition / Constitutional
Provisions related to Public International law
 Obligation erga omnes
- Concerns with the enforceability of norms not only
against the state directly affected by the breach, but also
against all members of the international community.
 Jus Cogens
- Is a peremptory norm of general international law which
is 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 IL having the same
character. A treaty does not prevail over jus cogens,
regardless of whether the rule pf jus cogens developed
before or after the treaty came into force. Any treaty
provision conflicting with a rule of jus cogens is void.
 Concept of Aequo et bono (or Ex Aequo Et Bono)
- is a Latin term which means what is just and fair or
according to equity and good conscience. A case to be
decided ex aequo et bono, overrides the strict rule of law
and requires instead a decision based on what is fair and
just under the given circumstances.
 Important Terms and Definitions in International Law vs.
Municipal Law
o Doctrine of Incorporation Clause
o Doctrine of Transformation
o Doctrine of Autolimitation
CASES:
A. Secretary of Justice vs. Hon. Ralph C. Lantion G.R. No.
139465, January 18, 2000
Facts:
1) Receiving from the DOF the US Note (attached to it were
indictment, warrant of arrest, etc.) containing a request
for the extradition of private respondent Mark Jimenez
to the US, the Secretary of Justice (petitioner) issued an
order designating and authorizing a panel of attorneys to
handle the case pursuant to the PD 1069, "Prescribing
the Procedure for the Extradition of Persons Who Have
Committed Crimes in a Foreign Country".
2) Due to petitioner’s denial of private respondent’s letter
requesting for copies of the official extradition request
with its supporting documents while pending its
evaluation, the latter filed a petition for mandamus (to
compel petitioner to furnish the documents, prohibition
(to restrain petitioner from considering the extradition
request and from filing the extradition petition), and
certiorari (to set aside petitioner’s letter).
3) The RTC favored private respondent prompting
petitioner to file the present petition contending, among
others, that he is unqualifiedly prevented from
performing legal duties under the extradition treaty and
Issue: WON private respondent’s right to notice and hearing
during the evaluation stage of the proceedings constitute breach
of the legal duties of the Philippine Government under the treaty.
Ruling: No.
Clearly, there is an impending threat to a prospective extraditee's
liberty as early as during the evaluation stage. It is not only an
imagined threat to his liberty, but a very imminent one.
True to the mandate of the due process clause, the basic rights of
notice and hearing pervade not only in criminal and civil
proceedings, but in administrative proceedings as well. Non-
observance of these rights will invalidate the proceedings.
Individuals are entitled to be notified of any pending case
affecting their interests, and upon notice, they may claim the right
to appear therein and present their side and to refute the position
of the opposing parties.
The "accused" (as Section 2[c] of Presidential Decree No. 1069
calls him), faces the threat of arrest, not only after the extradition
petition is filed in court, but even during the evaluation
proceeding itself by virtue of the provisional arrest allowed under
the treaty and the implementing law.
The rule of pacta sunt servanda, one of the oldest and most
fundamental maxims of international law, requires the parties to
a treaty to keep their agreement therein in good faith. The
observance of our country's legal duties under a treaty is also
compelled by Section 2, Article II of the Constitution which
provides that "[t]he Philippines renounces war as an instrument
of national policy, adopts the generally accepted principles of
international law as part of the law of the land, and adheres to
the policy of peace, equality, justice, freedom, cooperation and
amity with nations." Under the doctrine of incorporation, rules of
international law form part of the law of the and land no further
legislative action is needed to make such rules applicable in the
domestic sphere. xxx The doctrine of incorporation is applied
whenever municipal tribunals (or local courts) are confronted
with situations in which there appears to be a conflict between a
rule of international law and the provisions of the constitution or
statute of the local state. Efforts should first be exerted to
harmonize them, so as to give effect to both since it is to be
presumed that municipal law was enacted with proper regard for
the generally accepted principles of international law in
observance of the doctrine of the Incorporation Clause in the
above-cited constitutional provision. In a situation, however,
where the conflict is irreconcilable and a choice has to be made
between a rule of international law and municipal law,
jurisprudence dictates that municipal law should be upheld by the
municipal courts for the reason that such courts are organs of
municipal law and are accordingly bound by it in all
circumstances. xxx The fact that international law has been made
part of the law of the land does not pertain to or imply the
primacy of international law over national or municipal law in the
municipal sphere. The doctrine of incorporation, as applied in
most countries, decrees that rules of international law are given
equal standing with, but are not superior to, national legislative
enactments. Accordingly, the principle lex posterior derogat
priori takes effect — a treaty may repeal a statute and a statute
may repeal a treaty. In states where the constitution is the highest
law of the land, such as the Republic of the Philippines, both
statutes and treaties may be invalidated if they are in conflict with
the constitution
From the procedures earlier abstracted, after the filing of the
extradition petition and during the judicial determination of the
propriety of extradition, the rights of notice and hearing are
clearly granted to the prospective extraditee. However, prior
thereto, the law is silent as to these rights. Reference to the U.S.
extradition procedures also manifests this silence.
In the absence of a law or principle of law, we must apply the
rules of fair play. An application of the basic twin due process
rights of notice and hearing will not go against the treaty or the
implementing law.
QUISUMBING, J., concurring opinion;
The human rights of person, whether citizen or alien, and the
rights of the accused guaranteed in our Constitution should take
precedence over treaty rights claimed by a contracting state.
Stated otherwise, the constitutionally mandated duties of our
government to the individual deserve preferential consideration
when they collide with its treaty obligations to the government of
another state. This is so although we recognize treaties as a
source of binding obligations under generally accepted principles
of international law incorporated in our Constitution as part of
the law of the land.
B. In Re: Arturo Garcia, 2 SCRA 984
Facts:
1) Arturo Garcia has applied admission to the practice of
law in the Philippines without submitting to bar
examination.
2) He avers, among others, that he is a Filipino born citizen
in Negros Occidental, of Filipino parentage, and that
after finishing his law course in Spain, he was allowed to
practice the law profession in Spain.
3) He contended that under the Treaty of Academic
Degrees and the Exercise of Profession between the
Republic of the Philippines and the Spanish state, he is
entitled to practice the law in the Philippines without
submitting to the required bar examinations
Issue: WON Garcia can practice law in the Philippines without
passing the bar examination by virtue of the treaty.
Ruling. No
Article I of the Treaty, in its pertinent part, provides:
The nationals of both countries who shall have obtained
degree or diplomas to practice the liberal professions in
either of the Contracting States, issued by competent
national authorities, shall be deemed competent to
exercise said professions in the territory of the
Other, subject to the laws and regulations of the latter…
It is clear, therefore, that the privileges provided in the Treaty
invoked by the applicant are made expressly subject to the laws
and regulations of the contracting State in whose territory it is
desired to exercise the legal profession; and Section 1 of Rule 127,
in connection with Sections 2,9, and 16 thereof, which have the
force of law, require that before anyone can practice the legal
profession in the Philippine he must first successfully pass the
required bar examinations; and
The aforementioned Treaty, concluded between the Republic of
the Philippines and the Spanish State could not have been
intended to modify the laws and regulations governing admission
to the practice of law in the Philippines, for the reason that the
Executive Department may not encroach upon the constitutional
prerogative of the Supreme Court to promulgate rules for
admission to the practice of law in the Philippines, the lower to
repeal, alter or supplement such rules being reserved only to the
Congress of the Philippines. (See Sec. 13, Art VIII, Phil.
Constitution).
C. Sison v. The Board of Accountancy, 8 Phil 276 (1949)
Facts:
1) J.A. Sison filed this petition for certiorari against the
Board of Accountancy and Robert Orr Ferguson ordering
the Board to revoke the certificate issued (pursuant to
Act No. 342) to Ferguson, a British admitted without
examination, on the ground that there does not exist any
reciprocity between the Philippines and the UK regarding
the practice of accountancy.
2) Sison further avers that there being no law which
regulates the practice of accountancy in England, and
that the practice of accountancy in that country being
limited only to the members of incorporated private
accountant’s societies, the certificate issued by the
Institutes of chartered accountants and other similar
societies in England and Wales cannot be considered on
a par with the public accountant’s certificates issued by
the Phil. Board of Accountancy, which is a government
entity.
Issue: WON Ferguson’s certificate should be revoked for lack of
reciprocity between the Philippines and the UK re. the practice of
accountancy.
Ruling: No
From the text of the above-quoted section 12 of the Accountancy
Law (Act No. 3105), it is inferred that the registration as certified
public accountant and the issuance of the corresponding
certificate as such certified public accountant, to a person who for
five years has been engaged in professional accountancy work in
the Philippines and is a holder of a certificate as certified public
accountant, or as a chartered accountant, or other similar
degrees in the country of his origin, is predicated on the fact that
the country of origin of such foreign applicant (a) "does not
restrict the right of the Filipino certified public accountant to
practice therein," (b) "grants reciprocal rights to the Filipinos,"
and (c) the application for registration "be filed with the Board not
later than December 31, 1938."
In the case at bar, while the profession of certified public
accountant is not controlled or regulated by the Government of
Great Britain, the country of origin of respondent Robert Orr
Ferguson, according to the record, said respondent had been
admitted in this country to the practice of his profession as
certified public accountant on the strength of his membership of
the Institute of Accountants and Actuaries in Glasgow (England),
incorporated by the Royal Charter of 1855. The question of his
entitlement to admission to the practice of his profession in this
jurisdiction, does not , therefore, come under reciprocity, as this
principle is known in International Law, but it is included in the
meaning of comity, as expressed in the alternative condition of
the proviso of the above-quoted section 12 which says: such
country or state does not restrict the right of Filipino certified
public accountants to practice therein. xxx
Mutuality, reciprocity, and comity as bases or elements.
— International Law is founded largely upon mutuality,
reciprocity, and the principle of comity of nations.
Comity, in this connection, is neither a matter of
absolute obligation on the one hand, nor of mere
courtesy and good will on the other; it is the recognition
which one nation allows within its territory to the acts of
foreign governments and tribunals, having due regard
both to the international duty and convenience and the
rights of its own citizens or of other persons who are
under the protection of its laws. The fact of reciprocity
does not necessarily influence the application of the
doctrine of comity, although it may do so and has been
given consideration in some instances.
In Hilton vs. Guyot (supra), the highest court of the United States
said that comity "is the recognition which one nation allows
within its territory to the legislative, executive, or judicial acts of
another nation, having due regard both to International duty and
convenience, and to the rights of its own citizens or of other
persons who are under the protection of its laws. " Again, in Bank
of Augusta vs. Earle, 38 U.S., 13 Pet. 519, 589, Chief Justice Taney,
speaking for the court while Mr. Justice Story — well-known
author of the treatise on Conflict of Laws — was a member of it,
and largely adopting his words, said:
. . . It is needless to enumerate here the instances in
which by the general practice of civilized countries, the
laws of the one will, by the comity of nations, be
recognized and executed in another, where the rights of
individuals are concerned . . . The comity thus extended
to other nations is no impeachment of sovereignty. It is
the voluntary act of the nation by which it is offered, and
is inadmissible when contrary to its policy, or prejudicial
to its interest. But it contributes so largely to promote
justice between individuals, and to produce a friendly
intercourse between the sovereignties to which they
belong, that courts, but the comity of the nation, which
is administered and ascertained in the same way, and
guided by the same reasoning, by which all other
principles of municipal law are ascertained and guided.
Under such circumstances, and without necessarily construing
that such attitude of the British Government in the premises, as
represented by the British Minister, amounts to reciprocity, we
may at least state that it comes within the realm of comity, as
contemplated in our law.
II. Sources of International Law (Sources in general)
1. Primary Sources
a. Treaty
- A treaty 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.
- Types:
o Law-making treaties are multilateral agreement
that create legal obligations the observance of
which does no dissolve the treaty obligation.
They create general norms for the future
conduct of parties in terms of legal
propositions, and the obligations are basically
the same for all parties.
o Contract Treaties are bilateral or multi-lateral
agreements for the mutual interchange of
benefits between the parties and which create
reciprocal or concessionary obligations between
and towards particular parties only and not
towards the whole international community.
- Other terms: act, protocol, agreement, compromise d’
arbitrage, concordat, convention, declaration, exchange
of notes, pact, statute, charter and modus vivendi.
b. Customs/Customary International Law
- Consists of rules and rules of law derived from the
consistent conduct of States acting out of the belief that
the law required them to act that way.
i. Elements of Customs
a. State Practice
 Duration or long state practice
 Uniformity (Consistency? – widespread
repetition by States of similar
international acts over time
 Generality of the State Practice or that
the acts are taken by a significant
 number of States and not rejected by a CASE:
significant number of States
Inchong vs. Hernandez
 (Opinio Juris Sive Necessitatis or the
requirement that the acts must occur
out of a sense of obligation)
ii. Instant Custom
2. Secondary Sources
a. Judicial Decisions
b. Teaching of Highly Qualified Publicists
i. Requisites for a Highly Qualified Publicists
3. Other Sources
a. Hard Laws
b. Soft Law
III. International Community Actors/Subjects in
International Law
 States
 International Organizations
 Individuals
 Diplomatic and Consular Law
1. Diplomatic and Consular Relations
a. Right of Legation
i. Types
a. Diplomatic and Consular
Immunities
b. Diplomatic vs. Consular
Immunities
2. State and Diplomatic Immunity
a. Immunity in general
b. State Immunity
i. Scope of State Immunity
ii. Absolute
iii. Qualified
c. Act of State Doctrine
d. Process of Suggestion
e. Immunity of Foreign Armed Forces
3. United Nations
4. Concept of a State
5. Recognition of De Jure vs. De Facto Government

CASES:

A. Co Kim Chan vs. Valdez Tan Keh

B. Lawyers’ League for Better Philippines vs. Pres. Corazon
C. Aquino
6. Fundamental Rights of State Right of Existence and Self-
Defense Right of Independent and Sovereignty

CASES:

Tanada vs. Angara May 2, 1997

The Holy See vs. Rosario Dec. 1, 1994

People vs. Perfecto

Vilas vs. City of Manila

7. Right of Equity