PIL

Question 1

Defined a Treaty

Answer 1

A treaty, as defined by the Vienna Convention on the Law of Treaties, is “an international instrument 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.

Question 2

How does a treaty differ from an executive agreement?

Answer 2

From the standpoint of Philippine constitutional law, a treaty is to be distinguished from an executive agreement, as the Supreme Court has done in Commissioner of Customs vs Eastern Sea Trading (3 SCRA 351) where it declares that “the concurrence of the Senate is required by our fundamental law in the making of ‘treaties’ which are, however, distinct and different from ‘executive agreement’, which may be validly entered into without such concurrence.

Thus the distinction rests on the application of Senate concurrence as a constitutional requirement. However, from the standpoint of international law, no such distinction is drawn. Note for purposes of the Vienna Convention on the law of Treaties, in Article 2(1) the term ‘treaty’ is understood as “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 instrument and whatever its particular designation.” The Philippines is a party to the Convention which is already in force.

Question 3

Right of legation

Answer 3

The right of legation is the right of every state to enter into diplomatic relations with other states. This right is a sovereign right that can only be exercised legally
by those vested with international personality. The right of legation is governed by the 1961 Convention on Diplomatic Relations. The right of legation is both an active and a passive right. Active right of legation
is the act of sending diplomatic representatives to another states. The passive right of legation is the right of a state to receive diplomatic envoys from other states.

Question 4

To be considered an executive agreement, the following three requisites provided under the Vienna Convention must nevertheless concur:

Answer 4

(a) the agreement must be between States
(b) it must be written and
(c) it must be governed by international law (China National Machinery & Equipment Corporation vs Sta
Maria, G.R. No. 185572, 07 February 2012)

Question 5

What are the essential requisites of a valid treaty?

Answer 5

To be valid, a treaty must be:
(1) entered into by parties having the treaty-making capacity
(2) Through their authorized organs or representatives
(3) without the attendance of duress, fraud, mistake or other vice of consent
(4) on a lawful subject
(5) In accordance with their respective constitutional processes

Question 6

What are the two types of executive agreements?

Answer 6

There are two types. In USAFFE Veterans Association, the Supreme Court
adopts the following statement with approval:
Executive agreements fall into two classes:
(1) agreements made purely as executive acts affecting external relations and
independent of or without legislative authorization which may be termed as sole
executive agreement
(2) agreements entered into in pursuance of acts of Congress, which have been
designated as Congressional-Executive Agreements

Question 7

Who is authorized to represent the state in the conclusion of treaties?

Answer 7

It is for the municipal law to determine which organ of the state shall be empowered to enter into treated on its behalf. In the Philippines, it is the President who is vested with this power, but “no treaty or international agreement shall be valid and effective unless concurred in by at least 2/3 of all members of
the Senate.

Negotiation
Signature
Alternat
Ratification
Reservation

Question 8

Define Refugee

Answer 8

A refugee is a person who is outside his home country because he has suffered (or feared) persecution on account of race, religion, nationality or political
opinion, or because he is a member of a persecuted social category of persons, or because he is fleeing a war. Article 1 of the Convention Relating to the Status of Refugees, also known as the 1951 Refugee Convention as amended by the 1967 Protocol, defines refugee as “ a person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. Or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

Question 9

Non-refoulement

Answer 9

Non-refoulement is a principle of International Law which forbids the states from expelling from their territories and returning refugees to places where their lives or freedoms could be threatened. Unlike political asylum, which applies to those
who can prove of well grounded fear of persecution based on certain category of
persons, non-refoulement refers to the generic repatriation of people, including
refugees into war zones and other disaster areas.
The principle of “refoulement” was officially enshrined in Article 33 of the 1951
Convention Relating to the Status of Refugees and is also contained in the 1967
Protocol Relating to the Status of Refugees and Article 3 of the 1984 Convention
against Torture

Question 10

Asylum

Answer 10

Asylum is a refuge granted to an alien by a state on its own territory. It is a protection given by a government to someone who has left another country in
order to escape being harmed.

Question 11

Asylum v Refugee

Answer 11

A refugee is someone who has been forced to flee their home country due to persecution, war, violence, or serious human rights violations. The term “refugee” is defined by the 1951 Refugee Convention and its 1967 Protocol. Refugees have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. They are recognized under international law and receive protection and assistance from host countries and international organizations.

Asylum
Asylum refers to the protection granted by a country to foreign nationals who have fled their own country due to persecution or a well-founded fear of persecution. Asylum seekers are individuals who apply for this protection but whose claim for refugee status has not yet been determined. If granted asylum, they are recognized as refugees and are entitled to certain rights and protections.

In summary:

A refugee is someone who has already been recognized as needing protection under international law.

An asylum seeker is someone who is seeking this recognition and protection.

Question 12

Extradition

Answer 12

Extradition refers to the removal of a person from a requested state to the requesting state for criminal prosecution or punishment. In other words, to
extradite is to surrender, or obtain surrender of a fugitive from one jurisdiction to another. Extradition procedures are normally determined by reciprocal
agreements between countries or by multilateral agreements between a group of countries. The European Union, for example, shares a system of extradition laws. The act of extraditing amounts to a “delivery by the State of a person accused or convicted of a crime, to another State within whose territorial jurisdiction, actual or constructive, it was committed and which asks for his surrender with a view to execute justice. As it is an act of “surrender” of an individual found in a sovereign State to another State which demands his surrender, an act of extradition, even with a treaty rendered executory upon ratification by appropriate authorities, does not impose an obligation to extradite on the requested State until the latter has made its own determination of the validity of the requesting State’s demand, in
accordance with the requested State’s own interests (Wright vs CA, G.R. No.
113213, 15 August 1994)

Question 13

Two kinds of extradition treaties

Answer 13

1.List treaty This type of treaty which is the most common and traditional
extradition treaty in which a list of crimes is enumerated for which a state may
extradite a person upon the request of another state party to the said treaty.

2.Dual Criminality Treaty which allowed the extradition of a person if the crime
he has committed in the requesting state is also considered as a crime in the
extraditing state and that the punishment for the crime committed is more than
one-year imprisonment in both the countries

1. There must be a treaty
2. Extradition proceedings are sui generis
   Ex post facto law and Extradition
3. The requesting state will accord due process to the accused
4. Extradition is a major instrument for the suppression of crime
5. Compliance shall be in good faith

Question 14

Bail in extradition cases

Answer 14

In extradition cases, the right to bail can be quite complex and varies depending on the jurisdiction. Generally, bail is not automatically granted to individuals facing extradition2. Here are some key points:

No Automatic Right to Bail: In many jurisdictions, there is no automatic right to bail for individuals facing extradition. Bail may only be granted under specific circumstances3.

Flight Risk and Community Safety: Bail may be granted if it can be clearly shown that the individual is not a flight risk and does not pose a danger to the community.

Special Circumstances: Bail may be considered if there are special, humanitarian, and compelling circumstances.

Judicial Discretion: The decision to grant bail is often at the discretion of the court, which will consider factors such as the seriousness of the charges, the likelihood of the individual fleeing, and the potential impact on the community.

For example, in the case of Government of the United States of America vs. Mark B. Jimenez, the Philippine Supreme Court ruled that bail could be granted in extradition proceedings under certain conditions.

Question 15

The Attentat Clause

Answer 15

also known as the Clause Belge, is a provision in international extradition law. It excludes certain serious crimes, such as the assassination of a head of state or government, from being considered political offenses. This means that individuals who commit such acts cannot claim political offense as a defense to avoid extradition

Question 16

Difference between extradition and deportation and exclusion

Answer 16

Extradition
Extradition is a legal process where one country formally requests the return of an individual accused or convicted of a crime to face prosecution or punishment. It involves:

Legal Framework: Governed by treaties and international agreements.

Purpose: To prosecute or enforce a sentence for a crime committed.

Process: A formal request from the government of one country to another, often involving courts and legal procedures to determine if the request complies with legal requirements.

Deportation
Deportation is the act of removing a foreign national from a country, usually because they have violated immigration laws. Key points include:

Reason: Typically due to illegal entry, overstaying a visa, or committing a crime.

Authority: Carried out by immigration authorities.

Impact: The individual is sent back to their home country or another country that will accept them. They may face restrictions on re-entry.

Exclusion
Exclusion refers to the denial of entry to a foreign national at a country’s border or port of entry. Highlights include:

Reason: This can happen due to failure to meet entry requirements, lack of proper documentation, or suspicion of criminal intent.

Authority: Decisions are usually made by border control or immigration officers.

Impact: The individual is not allowed to enter the country and is sent back to their point of origin or another country.

Question 17

Define War

Answer 17

War is also defined as a state of armed conflict between states. It is generally characterized by extreme collective aggression, destruction and usually high mortality. The set of techniques and actions used to conduct war is known as warfare. An absence of war is usually called “peace”. Total war is warfare that is not restricted to purely legitimate military targets, and can result i massive civilian or other non-combatant casualties.

Question 18

What is Jus Ad Bellum

Answer 18

Jus Ad Bellum

This refers to the conditions under which states may resort to war or to the use of armed forces in general. The prohibition against the use of force amongst States and the exceptions to it are set out in the UN Charter of 1945 as the core ingredients of jus ad bellum.

Jus ad bellum are a set of criteria that are consulted before engaging in war, in order to determine whether entering into war is justifiable. It is sometimes considered as part of the laws on war, although the term “laws of war” can also be considered to refer to jus in bello, which concerns whether a war is conducted justly (regardless of whether the initiation of hostilities was just).

Jus ad bellum is the title given to the branch of law that defines the legitimate reasons a state may engage in war and focuses on certain criteria that render a war just. The principal modern legal source of jus ad bellum is derived from the Charter of the US, which declares in Article 2 that “All members shall refrain in their international relations from the threat or the use of force agains the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the UN.” and in Article 51 which states that “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the UN.”

Question 19

Jus in Bello

Answer 19

Agreements defining limits on acceptable conduct while already engaged in war are considered “rules of war” and are referred to as the jus in bello. Thus, the Geneva Conventions are a set of jus in bello. Doctrines concerning the protection of civilians in wartime, or the need of “proportionality” when force is used, are addressed to issues of conduct within a war, but the same doctrines can also shed light on the question of when it is lawful or unlawful to go to war in the first place. Jus in bello regulated the conduct of parties engaged in armed conflict. International Humanitarian Law is synonymous with Jus in Bello.

Question 20

1. Principle of Military Necessity

Answer 20

The belligerents may employ any amount and kind of force to compel the complete submission of the enemy with the least possible loss of lives, time and property. The principle of military necessity permits measures which are actually necessary to accomplish a legitimate military purpose and are not otherwise prohibited by International Humanitarian Law.

Question 21

The principle of proportionality

Answer 21

This prohibits attacks against military objectives which are “expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combinations thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. IN other words, the principle of proportionality seeks to limit damage caused by military operations by requiring that the effects of the means and methods of warfare used must not be disproportionate to the military advantage sought.

The principle of proportionality in war is a key concept in international humanitarian law (IHL). It aims to limit the harm caused to civilians and civilian objects during armed conflicts. The principle states that an attack against a military objective is prohibited if it is expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated1.

In simpler terms, the harm caused to civilians and civilian property must not be disproportionate to the military gain expected from the attack. This principle helps ensure that military operations are conducted with a degree of restraint to minimize unnecessary suffering and destruction.

Question 22

Archipelago doctrine

Answer 22

This doctrine states that the baseline from which the inland and territorial sea of an archipelago is to be determined consists of the straight lines joining appropriate points of the outermost islands or edge of the archipelago. Connected baselines which are drawn to enclose the entire archipelago define the internal waters while the waters from the baselines up the international treaty limits represent the territorial sea of the country.

The Archipelagic Doctrine is a principle in international law that treats an archipelago (a group of islands) as a single unit for the purposes of defining its territorial boundaries. This doctrine is particularly relevant to countries like the Philippines, Indonesia, and Fiji, which consist of numerous islands.