PPT1 - Article 1 to 5 Flashcards
LAW OF PREFERENTIAL APPLICATION
- International Laws: Customs, Treaties, Customary
- International Law/Practice, MHQPs (Most Highly Qualified Publicists)
- Special Laws - Law that punishes crimes or acts not included in the Revised Penal Code.
- Laws that grant criminal immunity or some privilege-class of preferred people
INTERNATIONAL LAW
- The law governing the conduct of states and of international organizations and with their relations amongst themselves, and relations with persons.
- Covers matters involving maintenance of peace, protection of the environment, human rights, war, and space expeditions among other things.
- Subject: entity possessing international rights, having the capacity to maintain its rights by bringing international claims.
- Object: the beneficiaries of international law.
SOURCES OF INTERNATIONAL LAW
- International conventions that establish rules expressly recognized by contesting states.
- International custom, as evidence of general practice accepted as law,
- Generally accepted principles of law recognized by civilized nations.
- Judicial decisions and works of the most highly qualified publicists of various nations, as subsidiary means for the determination of the rules of law.
TREATIES
- International agreements entered into between States in written form and governed by international law (1969 Vienna Convention on the Law of Treaties).
- Formal agreement, usually, but not necessarily in writing, entered into by the states for the purpose of regulating their mutual relations under the law of nations.
1969 VIENNA CONVENTION OF THE LAW OF TREATIES (VCTL)
An international agreement regulating treaties between states. It establishes comprehensive rules, procedures, and guidelines for how treaties are defined, drafted, amended, interpreted, and generally operated.
ORAL TREATY
Does not come within the contemplation of the Vienna Convention on the Law of Treaties, therefore would not be governed by the convention.
CUSTOMS
- Consists of unwritten rules evinced from the generality and uniformity of the practice of the States and is adhered to by such states out of a sense of legal obligation or opinio juris.
- OPINIO JURIS = belief that a certain form of behavior constitutes a legal obligation.
TREATY V. CUSTOM
Treaties can generally, but not always, serve as evidence of opinio juris or legal obligation.
TREATIES OVERRIDE CUSTOMS
if treaty was entered after the custom, the treaty will govern since it is an expression of the party’s consent to be bound by the treaty
GENERALLY ACCEPTED PRINCIPLES OF LAW
Principles of municipal law that are common to the legal systems of the world.
MOST HIGHLY QUALIFIED PUBLICISTS (MHQP)
- authorities such as writers and publicists
- subject to approval of judges themselves
- their judicial decisions and work are highly regarded as subsidiary resources of international law.
- there is no binding effect except as regards to state parties that give their consent
MAKING OF TREATIES
NACRE N = egotiation A = uthentication of Text C = onsent to be bound R = eservations, if any E = ntry into Force
CUSTOMARY INTERNATIONAL LAW
To prove that a certain rule is customary, one has to show that it is reflected in state practice and that the international community believes that such practice is required as a matter of law.
CONSULS
- Government official who lives or sojourns in a foreign country to look over his countrymen.
- Performs administrative and notarial duties.
- Not entitled to privileges and immunities mainly because they are not charged with the duty of representing their states in political matters.
EXTRA-TERRITORIALITY
exceptions (enforced outside jurisdiction of the PH)
- flag state rule
- forgery
- crimes against public officers
- crimes against national security
- crimes against the law of nations
FLAG STATE RULE
- refers to the country where a vessel is registered
- the ship carries the flag of the country where it is registered
FORGERY
- article 2, paragraph 2
- or counterfeit any coin or currency note
CRIMES COMMITTED BY PUBLIC OFFICERS
- Title 7 of the RPC.
- bribery, indirect bribery, qualified bribery, corruption of public officials, frauds against public treasury and similar offenses, other frauds, prohibited transactions, possession of prohibited interests, malversation of public funds, etc.
CRIMES AGAINST NATIONAL SECURITY/ LAW OF NATIONS
- Articles 114-130 of the RPC
- treason, conspiracy and proposal to commit treason, misprision of treason, espionage, inciting to war or giving motives for reprisals, violation of neutrality, correspondence with a hostile country, flight to enemy’s country, etc.
ARTICLE 2: TERRITORIALITY PRINCIPLE
- takes the position that criminal jurisdiction depends upon the place of perpetration.
- penal laws of a country are only enforceable within its territory
ARTICLE 2 - EXTRATERRITORIALITY
- diplomatic immunity
- immunities enjoyed by foreign states or international organizations and their official representatives from the jurisdiction of the country in which they are present.
ABSOLUTE/ TOTAL REPEAL
because of the repeal, the act or omission which used to be a crime is no longer a crime.
PARTIAL/ RELATIVE REPEAL
repeal merely modified the conditions affecting the crime, favorable to the accused
GENERAL REPEAL
the criminal law of the country governs all persons within the country regardless of their race, belief, sex, or creed.
STATUATORY CONSTRUCTION
- in dubio pro reo = when in doubt, for the accused
- Spanish text is controlling, to ascertain and give effect to the intent of law, to determine legislative intent
REVISED PENAL CODE
contains the general penal laws of the Philippines, first enacted in 1930
SPECIAL LAWS
- no criminal intent is needed, as long as it is committed
- Penal law which punishes acts not defined and penalized by the Penal Code.
CRIMINAL LAW
branch or division of law which defines crimes, treats of their nature, and provides for their punishment.
CLASSICAL THEORY V. POSITIVIST THEORY
classical theory
- basis of criminal liability is human free will
- purpose of the penalty is retribution.
- man is a moral creature with a free will to choose between good and evil.
- scant regard to the human element (not enough)
positivist theory
- man is subdued occasionally to do wrong, in spite of contrary to his volition
- crime is essentially a social and natural phenomenon
- views the criminal as a sick person which should be treated or rehabilitated (reformative).
CRIMINALIZATION OF WRONGFUL ACT IS LEGISLATIVE IN CHARACTER
exceptions:
- ex post facto law = makes an act illegal despite it being legal when committed
- bill of attainder = special acts of legislature, inflicting punishments without trial
- not cruel or degrading = extends only to situations of extreme corporeal or psychological punishment that strips the individual of his humanity.
- due process = substantive (rights of person to life, liberty, and property), procedural (trial and hearing)
ENGLISH V. FRENCH RULE
English rule
- such crimes are triable in that country unless they merely affect things within the vessel or they refer to the internal management thereof.
French rule
- such crimes are not triable in courts of that country unless their commission affects the peace and security of the territory or the safety of the state is endangered.
