The term soft law is used to denote agreements, principles and declarations that are not legally binding. Soft law instruments are predominantly found in the international sphere. ... Hard law refers generally to legal obligations that are binding on the parties involved and which can be legally enforced before a court.
INTERNATIONAL LAW BLOG
Monday, August 26, 2019
Sunday, March 29, 2015
1.What is the legal effect of decisions of the International Court of Justice in cases submitted to it for resolution? (1%)
(A) The decision is binding on other countries in similar situations.
(B) The decision is not binding on any country, even the countries that are parties to the case.
(C) The decision is binding only on the parties but only with respect to that particular case.
(D) The decision is not binding on the parties and is only advisory.
(E) The binding effect on the parties depends on their submission agreement.
2. Under the UN Convention on the Law of the Sea, the exclusive economic zone refers to an area. (1%)
(A) that is at least 100 miles from the baselines from which the outer limit of the territorial sea is measured
3. The President entered into an executive agreement with Vietnam for the supply to the Philippines of animal feeds not to exceed 40,000 tons in any one year. The Association of Animal Feed Sellers of the Philippines questioned the executive agreement for being contrary to R.A. 462 which prohibits the importation of animal feeds from Asian countries. Is the challenge correct? (1%)
(A) Yes, the executive agreement is contrary to an existing domestic law.
(B) No, the President is solely in charge of foreign relations and all his actions in this role form part of the law of the land.
(C) No, international agreements are sui generis and stand independently of our domestic laws.
(D) Yes, the executive agreement is actually a treaty which does not take effect without ratification by the Senate.
(E) Yes, the challenge is correct because there is no law empowering the President to undertake the importation.
4. Congress passed Republic Act No. 7711 to comply with the United Nations Convention on the Law of the Sea.In a petition filed with the Supreme Court, Anak Ti Ilocos, an association of Ilocano professionals, argued that Republic Act No. 7711discarded the definition of the Philippine territory under the Treaty of Paris and in related treaties; excluded the Kalayaan Islands and the Scarborough Shoals from the Philippine Archipelagic baselines; and converted internal waters into archipelagic waters. Is the petition meritorious? (6%)
6.
(B) The decision is not binding on any country, even the countries that are parties to the case.
(C) The decision is binding only on the parties but only with respect to that particular case.
(D) The decision is not binding on the parties and is only advisory.
(E) The binding effect on the parties depends on their submission agreement.
2. Under the UN Convention on the Law of the Sea, the exclusive economic zone refers to an area. (1%)
(B) that is at least 200 miles but not to exceed 300
miles from the baselines from which the outer limit of the territorial
sea is measured
(C) beyond and adjacent to a country's territorial
sea which cannot go beyond 200 nautical miles from the baselines from
which the outer limit of the territorial sea is measured
(D) that can go beyond 3 nautical miles but cannot
extend 300 nautical miles from the baselines from which the outer limit
of the territorial sea is measured
(E) None of the above.3. The President entered into an executive agreement with Vietnam for the supply to the Philippines of animal feeds not to exceed 40,000 tons in any one year. The Association of Animal Feed Sellers of the Philippines questioned the executive agreement for being contrary to R.A. 462 which prohibits the importation of animal feeds from Asian countries. Is the challenge correct? (1%)
(B) No, the President is solely in charge of foreign relations and all his actions in this role form part of the law of the land.
(C) No, international agreements are sui generis and stand independently of our domestic laws.
(D) Yes, the executive agreement is actually a treaty which does not take effect without ratification by the Senate.
(E) Yes, the challenge is correct because there is no law empowering the President to undertake the importation.
4. Congress passed Republic Act No. 7711 to comply with the United Nations Convention on the Law of the Sea.In a petition filed with the Supreme Court, Anak Ti Ilocos, an association of Ilocano professionals, argued that Republic Act No. 7711discarded the definition of the Philippine territory under the Treaty of Paris and in related treaties; excluded the Kalayaan Islands and the Scarborough Shoals from the Philippine Archipelagic baselines; and converted internal waters into archipelagic waters.
5. The Ambassador of the Republic of Kafiristan referred
to you for handling, the case of the Embassy's Maintenance Agreement
with CBM, a private domestic company engaged in maintenance work. The
Agreement binds CBM, for a defined fee, to maintain the Embassy's
elevators, air-conditioning units and electrical facilities. Section 10
of the Agreement provides that the Agreement shall be governed by
Philippine laws and that any legal action shall be brought before the
proper court of Makati. Kafiristan terminated the Agreement because CBM
allegedly did not comply with their agreed maintenance standards.
CBM contested the tennination and filed a complaint
againstKafiristan before the Regional Trial Court of Makati. The
Ambassador wants you to file a motion to dismiss on the ground of state
immunity from suit and to oppose the position that under Section 10 of
the Agreement, Kafiristan expressly waives its immunity from suit.
Under these facts, can the Embassy successfully invoke immunity from suit? (6%)6.
Sunday, March 8, 2015
During conflict, punishment for violating the laws of war may consist of a specific, deliberate and limited violation of the laws of war in reprisal.
Soldiers who break specific provisions of the laws of war lose the protections and status afforded as prisoners of war but only after facing a "competent tribunal" (GC III Art 5). At that point they become an unlawful combatant but they must still be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial", because they are still covered by GC IV Art 5.
Spies and terrorists are only protected by the laws of war if the power which holds them is in a state of armed conflict or war and until they are found to be an unlawful combatant.
Depending on the circumstances, they may be subject to civilian law or
military tribunal for their acts and in practice have been subjected to torture
and/or execution. The laws of war neither approve nor condemn such
acts, which fall outside their scope.Spies may only be punished
following a trial and if captured after rejoining their army must be
treated as a prisoner of war.[23]
Suspected terrorists who are captured during an armed conflict, without
having participated in the hostilities, may be detained only in
accordance with the GC IV and are entitled to a regular trial.[24] Countries that have signed the UN Convention Against Torture have committed themselves not to use torture on anyone for any reason.
After a conflict has ended, persons who have committed any breach of
the laws of war, and especially atrocities, may be held individually
accountable for war crimes through process of law
The Geneva Conventions are the result of a process that
developed in a number of stages between 1864 and 1949 which focused on
the protection of civilians and those who can no longer fight in an
armed conflict. As a result of World War II, all four conventions were
revised based on previous revisions and partly on some of the 1907 Hague
Conventions and readopted by the international community in 1949. Later
conferences have added provisions prohibiting certain methods of
warfare and addressing issues of civil wars.
The Geneva Conventions are:
- First Geneva Convention "for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field" (first adopted in 1864, last revision in 1949)
- Second Geneva Convention "for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea" (first adopted in 1949, successor of the 1907 Hague Convention X)
- Third Geneva Convention "relative to the Treatment of Prisoners of War" (first adopted in 1929, last revision in 1949)
- Fourth Geneva Convention "relative to the Protection of Civilian Persons in Time of War" (first adopted in 1949, based on parts of the 1907 Hague Convention IV)
In addition, there are three additional amendment protocols to the Geneva Convention:
- Protocol I (1977): Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts. As of 12 January 2007 it had been ratified by 167 countries.
- Protocol II (1977): Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts. As of 12 January 2007 it had been ratified by 163 countries.
- Protocol III (2005): Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem. As of June 2007 it had been ratified by 17 countries and signed but not yet ratified by an additional 68 countries.
Friday, January 23, 2015
opinion juris sive necessitates
There have been attempts to codify through treaties or multilateral
agreements the standards for the recognition and enforcement of foreign
judgments, but these have not borne fruition. The members of the
European Common Market accede to the Judgments Convention, signed in 1978, which eliminates as to participating countries all of such obstacles to recognition such as reciprocity and révision au fond.53 The most ambitious of these attempts is the Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, prepared in 1966 by the Hague Conference of International Law.54 While it has not received the ratifications needed to have it take effect,55 it is recognized as representing current scholarly thought on the topic.56 Neither the Philippines nor the United States are signatories to the Convention.
Yet even if there is no unanimity as to the
applicable theory behind the recognition and enforcement of foreign
judgments or a universal treaty rendering it obligatory force, there is
consensus that the viability of such recognition and enforcement is
essential. Steiner and Vagts note:
. . . The notion of unconnected bodies of national
law on private international law, each following a quite separate path,
is not one conducive to the growth of a transnational community
encouraging travel and commerce among its members. There is a
contemporary resurgence of writing stressing the identity or similarity
of the values that systems of public and private international law seek
to further – a community interest in common, or at least reasonable,
rules on these matters in national legal systems. And such generic
principles as reciprocity play an important role in both fields.57
Salonga, whose treatise on private international law is of worldwide renown, points out:
Whatever be the theory as to the basis for
recognizing foreign judgments, there can be little dispute that the end
is to protect the reasonable expectations and demands of the parties.
Where the parties have submitted a matter for adjudication in the court
of one state, and proceedings there are not tainted with irregularity,
they may fairly be expected to submit, within the state or elsewhere, to
the enforcement of the judgment issued by the court.58
There is also consensus as to the requisites for
recognition of a foreign judgment and the defenses against the
enforcement thereof. As earlier discussed, the exceptions enumerated in
Section 48, Rule 39 have remain unchanged since the time they were
adapted in this jurisdiction from long standing American rules. The
requisites and exceptions as delineated under Section 48 are but a
restatement of generally accepted principles of international law.
Section 98 of The Restatement, Second, Conflict of Laws, states that "a
valid judgment rendered in a foreign nation after a fair trial in a
contested proceeding will be recognized in the United States," and on
its face, the term "valid" brings into play requirements such notions as
valid jurisdiction over the subject matter and parties.59
Similarly, the notion that fraud or collusion may preclude the
enforcement of a foreign judgment finds affirmation with foreign
jurisprudence and commentators,60 as well as the doctrine that the foreign judgment must not constitute "a clear mistake of law or fact."61
And finally, it has been recognized that "public policy" as a defense
to the recognition of judgments serves as an umbrella for a variety of
concerns in international practice which may lead to a denial of
recognition.62
The viability of the public policy defense against
the enforcement of a foreign judgment has been recognized in this
jurisdiction.63
This defense allows for the application of local standards in reviewing
the foreign judgment, especially when such judgment creates only a
presumptive right, as it does in cases wherein the judgment is against a
person.64
The defense is also recognized within the international sphere, as many
civil law nations adhere to a broad public policy exception which may
result in a denial of recognition when the foreign court, in the light
of the choice-of-law rules of the recognizing court, applied the wrong
law to the case.65
The public policy defense can safeguard against possible abuses to the
easy resort to offshore litigation if it can be demonstrated that the
original claim is noxious to our constitutional values.
There is no obligatory rule derived from treaties or
conventions that requires the Philippines to recognize foreign
judgments, or allow a procedure for the enforcement thereof. However,
generally accepted principles of international law, by virtue of the
incorporation clause of the Constitution, form part of the laws of the
land even if they do not derive from treaty obligations.66
The classical formulation in international law sees those customary
rules accepted as binding result from the combination two elements: the
established, widespread, and consistent practice on the part of States;
and a psychological element known as the opinion juris sive necessitates
(opinion as to law or necessity). Implicit in the latter element is a
belief that the practice in question is rendered obligatory by the
existence of a rule of law requiring it.67
While the definite conceptual parameters of the
recognition and enforcement of foreign judgments have not been
authoritatively established, the Court can assert with certainty that
such an undertaking is among those generally accepted principles of
international law.68
As earlier demonstrated, there is a widespread practice among states
accepting in principle the need for such recognition and enforcement,
albeit subject to limitations of varying degrees. The fact that there is
no binding universal treaty governing the practice is not indicative of
a widespread rejection of the principle, but only a disagreement as to
the imposable specific rules governing the procedure for recognition and
enforcement.
Aside from the widespread practice, it is indubitable
that the procedure for recognition and enforcement is embodied in the
rules of law, whether statutory or jurisprudential, adopted in various
foreign jurisdictions. In the Philippines, this is evidenced primarily
by Section 48, Rule 39 of the Rules of Court which has existed in its
current form since the early 1900s. Certainly, the Philippine legal
system has long ago accepted into its jurisprudence and procedural rules
the viability of an action for enforcement of foreign judgment, as well
as the requisites for such valid enforcement, as derived from
internationally accepted doctrines. Again, there may be distinctions as
to the rules adopted by each particular state,69
but they all prescind from the premise that there is a rule of law
obliging states to allow for, however generally, the recognition and
enforcement of a foreign judgment. The bare principle, to our mind, has
attained the status of opinio juris in international practice.
Tuesday, January 20, 2015
Under the 1987 Constitution, international law can become part of the sphere of domestic law either by transformation or incorporation.
The transformation method requires that an international law be
transformed into a domestic law through a constitutional mechanism such
as local legislation. The incorporation method applies when, by mere
constitutional declaration, international law is deemed to have the
force of domestic law. [Emphasis supplied]
We characterized "generally accepted principles of
international law" as norms of general or customary international law
that are binding on all states. We held further:117
[G]enerally accepted principles of international law,
by virtue of the incorporation clause of the Constitution, form part of
the laws of the land even if they do not derive from treaty
obligations. The classical formulation in international law sees those customary rules accepted as binding
result from the combination [of] two elements: the established,
widespread, and consistent practice on the part of States; and a
psychological element known as the opinion juris sive necessitates (opinion
as to law or necessity). Implicit in the latter element is a belief
that the practice in question is rendered obligatory by the existence of
a rule of law requiring it. [Emphasis in the original]
The most widely accepted statement of sources of
international law today is Article 38(1) of the Statute of the
International Court of Justice, which provides that the Court shall
apply "international custom, as evidence of a general practice accepted
as law."118
The material sources of custom include State practice, State
legislation, international and national judicial decisions, recitals in
treaties and other international instruments, a pattern of treaties in
the same form, the practice of international organs, and resolutions
relating to legal questions in the UN General Assembly.119 Sometimes referred to as "evidence" of international law,120
these sources identify the substance and content of the obligations of
States and are indicative of the "State practice" and "opinio juris"
requirements of international law.121 We note the following in these respects:
GEN. AVELINO I. RAZON, JR., Chief, Philippine National Police (PNP); Police Chief Superintendent RAUL CASTAÑEDA, Chief, Criminal Investigation and Detection Group (CIDG); Police Senior Superintendent LEONARDO A. ESPINA, Chief, Police Anti-Crime and Emergency Response (PACER); and GEN. JOEL R. GOLTIAO, Regional Director of ARMM, PNP, Petitioners,
vs. MARY JEAN B. TAGITIS, herein represented by ATTY. FELIPE P. ARCILLA, JR., Attorney-in-Fact, Respondent.
From a Domestic Law Perspective, the Executive
Department has the exclusive prerogative to determine whether to espouse
petitioners’ claims against Japan.
Baker v. Carr39 remains the starting point for analysis under the political question doctrine. There the US Supreme Court explained that:
x x x Prominent on the surface of any case held to
involve a political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate political
department or a lack of judicially discoverable and manageable standards
for resolving it, or the impossibility of deciding without an initial
policy determination of a kind clearly for non-judicial discretion; or
the impossibility of a court's undertaking independent resolution
without expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a
political decision already made; or the potentiality of embarrassment
from multifarious pronouncements by various departments on question.
In Tañada v. Cuenco,40
we held that political questions refer "to those questions which, under
the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government. It
is concerned with issues dependent upon the wisdom, not legality of a
particular measure."
ISABELITA C. VINUYA,
vs.
THE HONORABLE EXECUTIVE SECRETARY
vs.
THE HONORABLE EXECUTIVE SECRETARY
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