PUBLIC INTERNATIONAL LAW

1987 Philippine Constitution

Doctrine of Incorporation

The doctrine of incorporation is expressed in Sec. 2, Art. II,

Philippine Constitution, as follows: “The 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 all
nations”.
Doctrine of Transformation

The doctrine of transformation requires the enactment by the

legislative body of such international law principles as are
sought to be part of municipal law.
Conflict of Laws

On the domestic sphere, with a local court deciding:

i) If the conflict is with the Constitution: uphold the

Constitution. [See Sec. 5(2)(a), Art. VIII, Philippine
Constitution, which provides that the Supreme Court has the
power to declare a treaty or executive agreement
unconstitutional.]
ii) If the conflict is with a statute: 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. A treaty may
repeal a statute, and a statute may repeal a treaty; thus, the
principle of lex posterior derogat priori, that which comes last in
time, will usually be upheld by the municipal tribunal.
b) On the international sphere, with an international tribunal
deciding: international law is superior to municipal law,
because international law provides the standard by which to
determine the legality of a State’s conduct.
Sources

On the domestic sphere, the constitution, legislative enactments and case

law (stare decisis).

On the international plane, it is a bit complicated because there is no body

likened to a national legislature, no fundamental law, and the doctrine of
precedents is not applicable.

1. However, the most authoritative enumeration is found in Art. 38,

Statute of the International Court of Justice, which provides that the
Court, whose function is to decide in accordance with International Law
such disputes as are submitted to it, shall apply:
As Primary Sources:

a) International Treaties and Conventions, whether general or

particular, establishing rules expressly recognized by the
contesting states.
b) International Customs, as evidence of a general practice
accepted as binding law through persistent usage over a long
period of time, e.g., angary, exemption of unarmed fishing
vessel from capture. It is necessary, however, that the custom
be—

[i] prevailing practice by a number of states;

[ii] repeated over a considerable period of time; and

[iii] attended by opinio juris or a sense of legal obligation.

c) General Principles of Law. These are rules derived mainly
from natural law, observed and recognized by civilized
nations, e.g., res judicata, prescription, pacta sunt servanda
and estoppel. Too, the principle of ex aequo et bono (what is
good and just), provided that the parties to the dispute agree
thereto, as provided in Art. 38 (1), Statute of the International
Court of Justice.]
As Secondary Sources:

a) Judicial Decisions, generally of international tribunals, the

most authoritative being the International Court of Justice.
b) Writings of publicists, which must be fair and unbiased
representation of international law by acknowledged
authorities in the field.
Interpretation

2. Interpretation of Art. 38. Although the provision is silent on

the question of whether the three primary sources have the
same hierarchic value, by practice, treaties take precedence
over customs, and customs over general principles of law,
except:
a) The principle of jus cogens: Customary international law
which has the status of a peremptory (absolute,
uncompromising, certain) norm of international law. A
peremptory norm is a norm accepted and recognized by the
international community of states as a rule, from which no
derogation is permitted and which can be modified only by a
subsequent norm having the same character. Examples are
slave trade, piracy, and terrorism.
United Nations

The UN Charter. This is the closest to a constitution that

basically governs the relations of international persons.
Technically, it is a treaty, a contract which the parties must
respect under the doctrine of pacta sunt servanda, although it
actually applies even to non-member States, at least in so far as
“may be necessary for the maintenance of international peace
and security”. It consists of 111 articles, besides the Preamble
and the concluding provisions. Annexed to it is the Statute of
the International Court of Justice.
International Court of Justice

It is the principal judicial organ of the UN; composed of 15

members who are elected for a term of nine years by absolute
majority vote in the General Assembly and the Security
Council, in separate elections, no two of whom must be
nationals of the same state. They must be of high moral
character and possess the qualifications required in their
respective countries for appointment to their highest judicial
offices.
 “(...) the most serious crimes of concern to the
international community as a whole must not go
unpunished (...)”

–Preamble to the Rome Statute of the International Criminal Court.

Consider:
https://www.icc-cpi.int/iccdocs/PIDS/publications/UICCEng.p
df
—

On 17 July 1998, 120 States adopted a statute in Rome - known

as the Rome Statute of the International Criminal Court (“the
Rome Statute”) - establishing the International Criminal
Court. For the first time in the history of humankind, States
decided to accept the jurisdiction of a permanent international
criminal court for the prosecution of the perpetrators of the
most serious crimes committed in their territories or by their
nationals after the entry into force of the Rome Statute on 1
July 2002.
The International Criminal Court is not a substitute for
national courts. According to the Rome Statute, it is the duty
of every State to exercise its criminal jurisdiction over those
responsible for international crimes. The International
Criminal Court can only intervene where a State is unable or
unwilling genuinely to carry out the investigation and
prosecute the perpetrators.
The primary mission of the International Criminal Court is to
help put an end to impunity for the perpetrators of the most
serious crimes of concern to the international community as a
whole, and thus to contribute to the prevention of such
crimes.
A well-informed public can contribute to guaranteeing lasting
respect for and the enforcement of international justice. The
purpose of this booklet is to promote a better understanding
of the International Criminal Court by providing answers to
the most frequently asked questions about the Court.
What is the International Criminal Court?

The International Criminal Court (“the ICC” or “the Court”) is

a permanent international court established to investigate,
prosecute and try individuals accused of committing the most
serious crimes of concern to the international community as a
whole, namely the crime of genocide, crimes against
humanity, war crimes and the crime of aggression.
Why was the ICC established?

Some of the most heinous crimes were committed during the

con icts which marked the twentieth century. Unfortunately,
many of these violations of international law have remained
unpunished. The Nuremberg and Tokyo tribunals were
established in the wake of the Second World War. In 1948,
when the Convention on the Prevention and Punishment of
the Crime of Genocide was adopted, the United Nations
General Assembly recognised the need for a permanent
international court to deal with the kinds of atrocities which
had just been perpetrated.
The idea of a system of international criminal justice re-
emerged after the end of the Cold War. However, while
negotiations on the ICC Statute were underway at the United
Nations, the world was witnessing the commission of heinous
crimes in the territory of the former Yugoslavia and in
Rwanda. In response to these atrocities, the United Nations
Security Council established an ad hoc tribunal for each of
these situations.

These events undoubtedly had a most signi cant impact on the

decision to convene the conference which established the ICC
in Rome in the summer of 1998.
What is the Rome Statute?

On 17 July 1998, a conference of 160 States established the rst treaty-based

permanent international criminal court. The treaty adopted during that
conference is known as the Rome Statute of the International Criminal Court.
Among other things, it sets out the crimes falling within the jurisdiction of the
ICC, the rules of procedure and the mechanisms for States to cooperate with
the ICC. The countries which have accepted these rules are known as States
Parties and are represented in the Assembly of States Parties.

The Assembly of States Parties, which meets at least once a year, sets the
general policies for the administration of the Court and reviews its activities.
During those meetings, the States Parties review the activities of the working
groups established by the States and any other issues relevant to the ICC,
discuss new projects and adopt the ICC’s annual budget.
How many countries have rati ed the Rome Statute?

Over 120 countries are States Parties to the Rome Statute,

representing all regions: Africa, the Asia- Paci c, Eastern
Europe, Latin America and the Caribbean, as well as Western
European and North America.
Where is the seat of the Court?

The seat of the Court is in The Hague in the Netherlands. The

Rome Statute provides that the Court may sit elsewhere
whenever the judges consider it desirable. The Court has also
set up of ces in the areas where it is conducting investigations.
How is the Court funded?

The Court is funded by contributions from the States Parties

and by voluntary contributions from governments,
international organisations, individuals, corporations and
other entities.
How does the ICC differ from other courts?

The ICC is a permanent autonomous court, whereas the ad

hoc tribunals for the former Yugoslavia and Rwanda, as well
as other similar courts established within the framework of
the United Nations to deal with speci c situations only have a
limited mandate and jurisdiction. The ICC, which tries
individuals, is also different from the International Court of
Justice, which is the principal judicial organ of the United
Nations for the settlement of disputes between States. The ad
hoc tribunal for the former Yugoslavia and the International
Court of Justice also have their seats in The Hague.
Is the ICC an of ce or agency of the United Nations?

No. The ICC is an independent body whose mission is to try

individuals for crimes within its jurisdiction without the need
for a special mandate from the United Nations. On 4 October
2004, the ICC and the United Nations signed an agreement
governing their institutional relationship.
Is the ICC meant to replace national courts?

No. The ICC does not replace national criminal justice

systems; rather, it complements them. It can investigate and,
where warranted, prosecute and try individuals only if the
State concerned does not, cannot or is unwilling genuinely to
do so. This might occur where proceedings are unduly
delayed or are intended to shield individuals from their
criminal responsibility. This is known as the principle of
complementarity, under which priority is given to national
systems. States retain primary responsibility for trying the
perpetrators of the most serious of crimes.
Under what conditions does the ICC exercise its jurisdiction?

When a State becomes a party to the Rome Statute, it agrees to

submit itself to the jurisdiction of the ICC with respect to the
crimes enumerated in the Statute. The Court may exercise its
jurisdiction in situations where the alleged perpetrator is a
national of a State Party or where the crime was committed in
the territory of a State Party. Also, a State not party to the
Statute may decide to accept the jurisdiction of the ICC. These
conditions do not apply when the Security Council, acting
under Chapter VII of the United Nations Charter, refers a
situation to the Of ce of the Prosecutor.
Is the ICC’s jurisdiction time bound?

The ICC has jurisdiction only with respect to events which occurred
after the entry into force of its Statute on 1 July 2002. If a State
becomes a party to the Statute after its entry into force, the Court
may exercise its jurisdiction only with respect to crimes committed
after the entry into force of the Statute for that State, unless that
State has made a declaration accepting the jurisdiction of the ICC
retroactively. However, the Court cannot exercise jurisdiction with
respect to events which occurred before 1 July 2002. For a new State
Party, the Statute enters into force on the rst day of the month after
the 60th day following the date of the deposit of its instrument of
rati cation, acceptance, approval or accession.
Who can be prosecuted before the ICC?

The ICC prosecutes individuals, not groups or States. Any

individual who is alleged to have committed crimes within
the jurisdiction of the ICC may be brought before the ICC. In
fact, the Of ce of the Prosecutor’s prosecutorial policy is to
focus on those who, having regard to the evidence gathered,
bear the greatest responsibility for the crimes, and does not
take into account any of cial position that may be held by the
alleged perpetrators.
Can the ICC try children?

No. The Court has no jurisdiction with respect to any person

who was under the age of 18 when the crimes concerned were
committed.
If those who bear the greatest responsibility hold high political or military of ce, are
they not exempt from prosecution? Can they not be granted immunity or amnesty?

No one is exempt from prosecution because of his or her current functions or

because of the position he or she held at the time the crimes concerned were
committed.

Acting as a Head of State or Government, minister or parliamentarian does not

exempt anyone from criminal responsibility before the ICC.

In some circumstances, a person in a position of authority may even be held

responsible for crimes committed by those acting under his or her command or
orders.

Likewise, amnesty cannot be used as a defence before the ICC. As such, it cannot
bar the Court from exercising its jurisdiction.
If the ICC issues an arrest warrant against a current or former
head of state, is it for political reasons?

No. The ICC is a judicial institution with an exclusively

judicial mandate. It is not subject to political control. As an
independent court, its decisions are based on legal criteria and
rendered by impartial judges in accordance with the
provisions of its founding treaty, the Rome Statute, and other
legal texts governing the work of the Court.
There are allegations that the ICC is only targeting African countries. Is
that true?

No. The ICC is concerned with countries that have accepted the Court’s
jurisdiction and these are in all continents.

African countries made great contributions to the establishment of the

Court and in uenced the decision to have an independent Of ce of the
Prosecutor. In 1997, the Southern African Development Community
(SADC) was very active in supporting the proposed Court and its
declaration on the matter was endorsed in February 1998, by the
participants of the African Conference meeting in Dakar, Senegal,
through the “Declaration on the Establishment of the International
Criminal Court”.
At the Rome Conference itself, the most meaningful declarations about the Court
were made by Africans. Without African support the Rome Statute might never
have been adopted. In fact, Africa is the most heavily represented region in the
Court’s membership. The trust and support comes not only from the governments,
but also from civil society organisations. The Court has also bene ted from the
professional experience of Africans and a number of Africans occupy high-level
positions in all organs of the Court.

The majority of ICC investigations were opened at the request of or after

consultation with African governments. Other investigations were opened
following a referral by the United Nations Security Council, where African
governments are also represented.

Finally, in addition to its formal investigations, the Court’s Of ce of the Prosecutor is

conducting preliminary examinations in a number of countries across four
continents.
Which crimes fall within the jurisdiction of the ICC?

The mandate of the Court is to try individuals (rather than

States), and to hold such persons accountable for the most
serious crimes of concern to the international community as a
whole, namely the crime of genocide, war crimes, crimes
against humanity, and the crime of aggression, when the
conditions for the exercise of the Court’s jurisdiction over the
latter are ful lled.
What is genocide?

According to the Rome Statute, “genocide” means any of the following acts
committed with the intent to destroy, in whole or in part, a national, ethnical,
racial or religious group:

• killing members of the group;

• causing serious bodily or mental harm to members of the group;

• deliberately in icting on the group conditions of life calculated to bring about

its physical destruction in whole or in part;

• imposing measures intended to prevent births within the group;

• forcibly transferring children of the group to another group.

What are crimes against humanity?

“Crimes against humanity” include any of the following acts committed

as part of a widespread or systematic attack directed against any civilian
population, with knowledge of the attack:

• murder;

• extermination;

• enslavement;

• deportation or forcible transfer of population;

• imprisonment;
• torture;

• rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization,

or any other form of sexual violence of comparable gravity;

• persecution against an identi able group on political, racial, national, ethnic, cultural,

religious or gender grounds;

• enforced disappearance of persons;

• the crime of apartheid;

• other inhumane acts of a similar character intentionally causing great suffering or

serious bodily or mental injury.

What are war crimes?

“War crimes” include grave breaches of the Geneva Conventions and

other serious violations of the laws and customs applicable in
international armed con ict and in con icts “not of an international
character” listed in the Rome Statute, when they are committed as
part of a plan or policy or on a large scale. These prohibited acts
include:

• murder;

• mutilation, cruel treatment and torture;

• taking of hostages;
• intentionally directing attacks against the civilian population;

• intentionally directing attacks against buildings dedicated to religion,

education, art,

science or charitable purposes, historical monuments or hospitals;

• pillaging;

• rape, sexual slavery, forced pregnancy or any other form of sexual violence;

• conscripting or enlisting children under the age of 15 years into armed forces
or

groups or using them to participate actively in hostilities.

29. What is a crime of aggression?

As adopted by the Assembly of States Parties during the Review Conference of the
Rome Statute, held in Kampala (Uganda) between 31 May and 11 June 2010, a “crime of
aggression” means the planning, preparation, initiation or execution of an act of using
armed force by a State against the sovereignty, territorial integrity or political
independence of another State.

The act of aggression includes, among other things, invasion, military occupation, and
annexation by the use of force, blockade of the ports or coasts, if it is considered being,
by its character, gravity and scale, a manifest violation of the Charter of the United
Nations.

The perpetrator of the act of aggression is a person who is in a position effectively to

exercise control over or to direct the political or military action of a State.
When will the Court have jurisdiction over the crime of
aggression?

The Court may exercise jurisdiction over the crime of

aggression, subject to a decision to be taken after 1 January
2017 by a two-thirds majority of States Parties and subject to
the rati cation of the amendment concerning this crime by at
least 30 States Parties.
Under which conditions would the Court be able to exercise
its jurisdiction over the crime of aggression?

The Court will be able to exercise jurisdiction over a crime of

aggression, arising from an act of aggression committed by a
State Party, unless that State Party has previously declared
that it does not accept such jurisdiction.
Except when the situation is referred to the Court by the
United Nations Security Council, the Court has no jurisdiction
over crimes of aggression committed in the territory of a State
which is not party to the Rome Statute or by its citizens.

The Court will have jurisdiction only over crimes of

aggression committed one year after 30 States Parties ratify or
accept the amendments of the Rome Statute in relation with
the crime of aggression, which were adopted by the Assembly
of States Parties in June 2010.
How would an investigation into a crime of aggression be
opened?

If the United Nations Security Council determines that an act

of aggression has been committed, the ICC Prosecutor can
decide to open an investigation, under the conditions
mentioned above.
Otherwise, the Prosecution may examine the situation and,
based on its assessment, may notify the United Nations
Secretary General of the situation.

If, within six months of being noti ed by the Prosecution, the

United Nations Security Council does not make a
determination on whether or not an act of aggression has been
committed, the Prosecutor may still proceed with an
investigation into a crime of aggression, subject to
authorisation by the ICC’s Pre-Trial Division.
What penalties may be imposed by the Court?

The judges may impose a prison sentence, to which may be

added a ne or forfeiture of the proceeds, property and assets
derived directly or indirectly from the crime committed. The
Court cannot impose a death sentence. The maximum
sentence is 30 years. However, in extreme cases, the Court
may impose a term of life imprisonment.
Where are the sentences served?

Convicted persons serve their prison sentences in a State

designated by the Court from a list of States which have indicated
to the Court their willingness to accept convicted persons.

The conditions of imprisonment are governed by the laws of the

State of enforcement and must be consistent with widely accepted
international treaty standards governing the treatment of
prisoners. Such conditions may not be more or less favourable
than those available to prisoners convicted of similar offences in
the State of enforcement.
RIGHTS

Existence and Self-Preservation.

Right to Sovereignty and Independence.

The Right of Equality.

Territory.

Legation.
TREATIES

A treaty is defined 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 instruments and whatever its particular designation”
[Vienna Convention on the Law of Treaties, 1969].
An executive agreement may, within the context of municipal
law, not be considered as a treaty [Commissioner of Customs
v. Eastern Sea Trading, 3 SCRA 351].
Ratification in accordance with constitutional processes of the
parties concerned. Sec. 21, Art. VII, Philippine Constitution,
provides: “No treaty or international agreement shall be valid
and effective unless concurred in by at least 2/3 of all the
members of the Senate”.
Treaties and Executive Agreements. In Commissioner of
Customs v. Eastern Sea Trading, supra., the Supreme Court
held that treaties (which will require Senate concurrence for
validity) generally refer to basic political issues, changes in
national policy and permanent international arrangements;
while executive agreements (which do not require such
concurrence) refer to adjustments of detail carrying out well-
established national policies, and temporary arrangements.
See USAFFE Veterans v. Treasurer of the Philippines, where
the Court held that the Romulo-Snyder Agreement, involving
a loan of $35M, was a purely executive act which the President
may validly enter into by virtue of the authority granted to
him under existing law.
In Bayan v. Executive Secretary, G.R. No. 138570, October 10,
2000, the Supreme Court held that the Visiting Forces
Agreement (VFA) is constitutional, having been duly
concurred in by the Philippine Senate. The Republic of the
Philippines cannot require the United States to submit the
agreement to the US Senate for concurrence, for that would be
giving a strict construction to the phrase “recognized as a
treaty”. Moreover, it is inconsequential that the US treats the
VFA as merely an executive agreement because, under
international law, an executive agreement is just as binding as
a treaty.
c) Exchange of Notes. An “exchange of notes” is a record of a
routine agreement that has many similarities with the private
law contract. The agreement consists of the exchange of two
documents, each of the parties being in the possession of the one
signed by the representative of the other. The usual procedure is
for the accepting State to repeat the text of the offering State to
record its assent. The signatories of the letters may be
government Ministers, diplomats or department heads. The
technique of exhange of notes is frequently resorted to either
because of its speedy procedure, or sometimes, to avoid the
process of legislative approval [Abaya v. Ebdane, G.R.No.
167919, February 14, 2007].
While the final text of the Japan-Philippines Economic
Package Agreement (JPEPA) may not be kept perpetually
confidential, the offers exchanged by the parties during
negotiations continue to be privileged even after the JPEPA is
published. It is reasonable to conclude that the Japanese
representatives submitted their offers with the understanding
that “historic confidentiality” would govern the same.
Disclosing these offers could impair the ability of the
Philippines to deal not only with Japan but with other foreign
governments in future negotiations [AKBAYAN v. Aquino,
G.R. No. 170516, July 16, 2008].
In the Philippines, the power to ratify a treaty is vested in the
President, subject to concurrence by 2/3 of all the members of
the Senate [Sec. 21, Art. VII, Philippine Constitution], In
Pimentel v. Office of the Executive Secretary, G.R. No. 158088,
July 6, 2005, the Supreme Court said that in our system of
government, the President, being the head of State, is
regarded as the sole organ and authority in external relations
and is the country’s sole representative with foreign nations.
As the chief architect of foreign policy, the President acts as the
country’s mouthpiece with respect to international affairs. The
President is vested with the authority to deal with foreign states
and governments, extend or withhold recognition, maintain
diplomatic relations, enter into treaties, and otherwise transact
the business of foreign relations. Thus, the President has the
discretion, even after the signing of the treaty by the Philippine
representative, whether or not to ratify the same. Accordingly,
without the President’s consent, the Executive Secretary and the
Secretary of Foreign Affairs may not be compelled by mandamus
to transmit a copy of the Rome Statute signed by a member of the
Philippine mission to the UN to the Senate for concurrence.
NATIONALITY/STATELESSNESS/ALIENS

However, there is no obligation on the part of the State of his nationality to

recognize a person’s newly acquired nationality. Municipal law may even
prohibit the renunciation of one’s nationality under certain circumstances,
as in the application of the doctrine of indelible allegiance. An example is
Commonwealth Act No. 63 which provides that one of the modes of losing
Philippine citizenship is by subscribing to an oath of allegiance to support
the Constitution or the laws of a foreign country, but a Filipino may not
divest himself of Philippine citizenship in this manner while the Republic
of the Philippines is at war with any country. See also Joyce v. Director of
Public Prosecution. House of Lords, December 18, 1945.
Statelessness. The status of having no nationality, as a
consequence of being born without any nationality, or as a
result of deprivation or loss of nationality. See Labo v.
Comelec, 176 SCRA 1.
In Government of Hongkong v. Hon. Felixberto T. Olalia, Jr., G.R. No.
153675, April 19, 2007, the Supreme Court modified its earlier ruling (in
Government of the U.S. v. Purganan) that the constitutional right to bail does
not apply to extradition proceedings. The Court said that it cannot ignore the
modern trend in public international law which places primacy on the worth
of the individual person and the sanctity of human rights. While the
Universal Declaration of Human Rights (which proclaims the right to life,
liberty and all the other fundamental rights of every person) is not a treaty,
the principles contained therein are now recognized as customarily binding
on all members of the international community. If bail can be granted in
deportation cases, considering that the Universal Declaration of Human
Rights applies to deportation cases, there is no reason why it cannot be
invoked in extradition cases. After all, both are administrative proceedings
where the innocence or guilt of the person detained is not in issue.
Refugees. A refugee is any person who is outside the country
of his nationality, or if he has no nationality, the country of his
former habitual residence, because he has or had well-
founded fear of prosecution by reason of his race, religion,
nationality or political opinion and is unable or, because of
such fear, is unwilling to avail himself of the protection of the
government of the country of his nationality, or if he has no
nationality, to return to the country of his former habitual
residence.
1. Essential elements: [a] outside the country of his nationality, or
if stateless, outside the country of his habitual residence; [b] lacks
national protection; and [c] fears persecution.

2. A refugee is treated as a stateless individual, which he is, either

de jure or de facto.

3. The Refugee Convention of 1951 does not deal with admission,

but with non-refoulement, i.e., that no contracting state shall
expel or return a refugee in any manner whatsoever, to the
frontiers of territories where his life or freedom is threatened. The
state is under obligation to grant temporary asylum to refugees.
DISPUTES

Pacific or amicable modes. Article 3 of the UN Charter

provides that the parties to any dispute, the continuance of
which is likely to endanger the maintenance of international
peace and security, shall, first of all, seek a solution by
negotiation, enquiry, mediation, conciliation, arbitration,
judicial settlement, resort to regional agencies or
arrangements, or other peaceful means of their own choice.
The judicial settlement of the international disputes is now
lodged in the International Court of Justice.

The optional jurisdiction clause. Although the ICJ’s

jurisdiction is based on the consent of the parties, nonetheless,
Art. 36 of the Statute of the International Court of Justice
provides that the states/parties to the Statute recognize the
jurisdiction of the Court over disputes concerning
interpretation of a treaty, any question of international law,
the existence of any fact which would constitute a breach of
international obligations, and the nature or extent of the
reparation to be made for such breach.
WAR AND NEUTRALITY

A. War. War is the contention between two states, through

their armed forces, for the purpose of overpowering the other
and imposing such conditions of peace as the victor pleases.
War does not mean the mere employment of force; if a nation
declares war against another, war exists, though no force has
yet been used. On the other hand, in case of reprisal, force
may already be used, but no state of war may yet exist.
War Crimes. They are acts for which soldiers or other individuals
may be punished by the enemy on capture of the offender.

1. War criminal. Any person, whether a civilian or a member of

the armed forces of the state, who commits an act that violates
a rule of international law governing armed conflicts.

2. The Philippines had the authority to try war criminals after

World War II

[Kuroda v. Jalandoni, 42 O.G. 4282; Yamashita v. Styer, 75 Phil

563].
Neutrality is non-participation, directly or indirectly, in a war
between contending belligerents.

Neutrality under the UN Charter. In view of the enforcement

action which the UN may take, absolute neutrality cannot
exist among UN members.
CASES

The West Philippine Sea Case of Philippines v. China. Full

text:
https://pca-cpa.org/wp-content/uploads/sites/175/2016/07/PH-
CN-20160712-Award.pdf
X. DISPOSITIF

1202. The Tribunal recalls and incorporates the following findings reached
unanimously in its Award on Jurisdiction and Admissibility of 29 October 2015:

A. that the Tribunal was properly constituted in accordance with Annex VII to
the Convention.

B. that China’s non-appearance in these proceedings does not deprive the

Tribunal of jurisdiction.

C. that the Philippines’ act of initiating this arbitration did not constitute an
abuse of process.

D. that there is no indispensable third party whose absence deprives the

Tribunal of jurisdiction.
E. that the 2002 China–ASEAN Declaration on Conduct of the Parties in the
South China Sea, the joint statements of the Parties referred to in paragraphs
231 to 232 of the Tribunal’s Award on Jurisdiction and Admissibility of 29
October 2015, the Treaty of Amity and Cooperation in Southeast Asia, and the
Convention on Biological Diversity, do not preclude, under Articles 281 or 282
of the Convention, recourse to the compulsory dispute settlement procedures
available under Section 2 of Part XV of the Convention.

F. that the Parties have exchanged views as required by Article 283 of the
Convention.

G. that the Tribunal has jurisdiction to consider the Philippines’ Submissions

No. 3, 4, 6, 7, 10, 11, and 13, subject to the conditions noted in paragraphs 400,
401, 403, 404, 407, 408, and 410 of the Tribunal’s Award on Jurisdiction and
Admissibility of 29 October 2015.
1203. For the reasons set out in this Award, the Tribunal
unanimously, and without prejudice to any questions of
sovereignty or maritime boundary delimitation, decides as
follows:

A. In relation to its jurisdiction, the Tribunal:

(1) FINDS that China’s claims in the South China Sea do not
include a claim to ‘historic title’, within the meaning of Article
298(1)(a)(i) of the Convention, over the waters of the South
China Sea and that the Tribunal, therefore, has jurisdiction to
consider the Philippines’ Submissions No. 1 and 2;
(2) FINDS, with respect to the Philippines’ Submission No. 5:

a. that no maritime feature claimed by China within 200 nautical miles of

Mischief Reef or Second Thomas Shoal constitutes a fully entitled island for
the purposes of Article 121 of the Convention and therefore that no maritime
feature claimed by China within 200 nautical miles of Mischief Reef or
Second Thomas Shoal has the capacity to generate an entitlement to an
exclusive economic zone or continental shelf;

b. that Mischief Reef and Second Thomas Shoal are low-tide elevations and,
as such, generate no entitlement to maritime zones of their own;

c. that there are no overlapping entitlements to an exclusive economic zone

or continental shelf in the areas of Mischief Reef or Second Thomas Shoal;
and
d. that the Tribunal has jurisdiction to consider the Philippines’
Submission No. 5;

(3) FINDS, with respect to the Philippines’ Submissions No. 8 and 9:

a. that no maritime feature claimed by China within 200 nautical miles

of Mischief Reef or Second Thomas Shoal constitutes a fully entitled
island for the purposes of Article 121 of the Convention and therefore
that no maritime feature claimed by China within 200 nautical miles of
Mischief Reef or Second Thomas Shoal has the capacity to generate an
entitlement to an exclusive economic zone or continental shelf;

b. that Mischief Reef and Second Thomas Shoal are low-tide elevations
and, as such, generate no entitlement to maritime zones of their own;
c. that Reed Bank is an entirely submerged reef formation that cannot
give rise to maritime entitlements;

d. that there are no overlapping entitlements to an exclusive economic

zone or continental shelf in the areas of Mischief Reef or Second Thomas
Shoal or in the areas of the Philippines’ GSEC101, Area 3, Area 4, or
SC58 petroleum blocks;

e. that Article 297(3)(a) of the Convention and the law enforcement

exception in Article 298(1)(b) of the Convention are not applicable to this
dispute; and

f. that the Tribunal has jurisdiction to consider the Philippines’

Submissions No. 8 and 9;
(4) FINDS that China’s land reclamation and/or construction
of artificial islands, installations, and structures at Cuarteron
Reef, Fiery Cross Reef, Gaven Reef (North), Johnson Reef,
Hughes Reef, Subi Reef, and Mischief Reef do not constitute
“military activities”, within the meaning of Article 298(1)(b) of
the Convention, and that the Tribunal has jurisdiction to
consider the Philippines’ Submissions No. 11 and 12(b);
(5) FINDS, with respect to the Philippines’ Submissions No.
12(a) and 12(c):

a. that no maritime feature claimed by China within 200

nautical miles of Mischief Reef or Second Thomas Shoal
constitutes a fully entitled island for the purposes of Article
121 of the Convention and therefore that no maritime feature
claimed by China within 200 nautical miles of Mischief Reef or
Second Thomas Shoal has the capacity to generate an
entitlement to an exclusive economic zone or continental shelf;
b. that Mischief Reef and Second Thomas Shoal are low-tide
elevations and, as such, generate no entitlement to maritime
zones of their own;

c. that there are no overlapping entitlements to an exclusive

economic zone or continental shelf in the areas of Mischief
Reef or Second Thomas Shoal; and

d. that the Tribunal has jurisdiction to consider the

Philippines’ Submissions No. 12(a) and 12(c);
(6) FINDS with respect to the Philippines’ Submission No. 14:

a. that the dispute between China and the Philippines concerning the stand-off
between the Philippines’ marine detachment on Second Thomas Shoal and
Chinese military and paramilitary vessels involves “military activities”, within
the meaning of Article 298(1)(b) of the Convention, and that the Tribunal has
no jurisdiction to consider the Philippines’ Submissions No. 14(a) to (c); and

b. that China’s land reclamation and/or construction of artificial islands,

installations, and structures at Cuarteron Reef, Fiery Cross Reef, Gaven Reef
(North), Johnson Reef, Hughes Reef, Subi Reef, and Mischief Reef do not
constitute “military activities”, within the meaning of Article 298(1)(b) of the
Convention, and that the Tribunal has jurisdiction to consider the Philippines’
Submission No. 14(d);
(7) FINDS, with respect to the Philippines’ Submission No. 15,
that there is not a dispute between the Parties such as would
call for the Tribunal to exercise jurisdiction; and

(8) DECLARES that it has jurisdiction to consider the matters

raised in the Philippines’ Submissions No. 1, 2, 3, 4, 5, 6, 7, 8,
9, 10, 11, 12, 13, and 14(d) and that such claims are admissible.
B. In relation to the merits of the Parties’ disputes, the Tribunal:

(1) DECLARES that, as between the Philippines and China, the Convention
defines the scope of maritime entitlements in the South China Sea, which
may not extend beyond the limits imposed therein;

(2) DECLARES that, as between the Philippines and China, China’s claims
to historic rights, or other sovereign rights or jurisdiction, with respect to
the maritime areas of the South China Sea encompassed by the relevant
part of the ‘nine-dash line’ are contrary to the Convention and without
lawful effect to the extent that they exceed the geographic and substantive
limits of China’s maritime entitlements under the Convention; and further
DECLARES that the Convention superseded any historic rights, or other
sovereign rights or jurisdiction, in excess of the limits imposed therein;
(3) FINDS, with respect to the status of features in the South China Sea:

a. that it has sufficient information concerning tidal conditions in the South China
Sea such that the practical considerations concerning the selection of the vertical
datum and tidal model referenced in paragraphs 401 and 403 of the Tribunal’s
Award on Jurisdiction and Admissibility of 29 October 2015 do not pose an
impediment to the identification of the status of features;

b. that Scarborough Shoal, Gaven Reef (North), McKennan Reef, Johnson Reef,
Cuarteron Reef, and Fiery Cross Reef include, or in their natural condition did
include, naturally formed areas of land, surrounded by water, which are above
water at high tide, within the meaning of Article 121(1) of the Convention;

c. that Subi Reef, Gaven Reef (South), Hughes Reef, Mischief Reef, and Second
Thomas Shoal, are low-tide elevations, within the meaning of Article 13 of the
Convention;
d. that Subi Reef lies within 12 nautical miles of the high-tide
feature of Sandy Cay on the reefs to the west of Thitu;

e. that Gaven Reef (South) lies within 12 nautical miles of the

high-tide features of Gaven Reef (North) and Namyit Island;
and

f. that Hughes Reef lies within 12 nautical miles of the high-

tide features of McKennan Reef and Sin Cowe Island;
(4) DECLARES that, as low-tide elevations, Mischief Reef and
Second Thomas Shoal do not generate entitlements to a
territorial sea, exclusive economic zone, or continental shelf
and are not features that are capable of appropriation;
(5) DECLARES that, as low-tide elevations, Subi Reef, Gaven
Reef (South), and Hughes Reef do not generate entitlements to
a territorial sea, exclusive economic zone, or continental shelf
and are not features that are capable of appropriation, but
may be used as the baseline for measuring the breadth of the
territorial sea of high-tide features situated at a distance not
exceeding the breadth of the territorial sea;
(6) DECLARES that Scarborough Shoal, Gaven Reef (North),
McKennan Reef, Johnson Reef, Cuarteron Reef, and Fiery
Cross Reef, in their natural condition, are rocks that cannot
sustain human habitation or economic life of their own, within
the meaning of Article 121(3) of the Convention and
accordingly that Scarborough Shoal, Gaven Reef (North),
McKennan Reef, Johnson Reef, Cuarteron Reef, and Fiery
Cross Reef generate no entitlement to an exclusive economic
zone or continental shelf;
(7) FINDS with respect to the status of other features in the South China Sea:

a. that none of the high-tide features in the Spratly Islands, in their natural
condition, are capable of sustaining human habitation or economic life of their
own within the meaning of Article 121(3) of the Convention;

b. that none of the high-tide features in the Spratly Islands generate entitlements
to an exclusive economic zone or continental shelf; and

c. that therefore there is no entitlement to an exclusive economic zone or

continental shelf generated by any feature claimed by China that would overlap
the entitlements of the Philippines in the area of Mischief Reef and Second
Thomas Shoal; and

DECLARES that Mischief Reef and Second Thomas Shoal are within the exclusive
economic zone and continental shelf of the Philippines;
(8) DECLARES that China has, through the operation of its marine
surveillance vessels in relation to M/V Veritas Voyager on 1 and 2
March 2011 breached its obligations under Article 77 of the
Convention with respect to the Philippines’ sovereign rights over the
non-living resources of its continental shelf in the area of Reed Bank;

(9) DECLARES that China has, by promulgating its 2012 moratorium

on fishing in the South China Sea, without exception for areas of the
South China Sea falling within the exclusive economic zone of the
Philippines and without limiting the moratorium to Chinese flagged
vessels, breached its obligations under Article 56 of the Convention
with respect to the Philippines’ sovereign rights over the living
resources of its exclusive economic zone;
(10) FINDS, with respect to fishing by Chinese vessels at Mischief Reef and
Second Thomas Shoal:

a. that, in May 2013, fishermen from Chinese flagged vessels engaged in fishing
within the Philippines’ exclusive economic zone at Mischief Reef and Second
Thomas Shoal; and

b. that China, through the operation of its marine surveillance vessels, was aware
of, tolerated, and failed to exercise due diligence to prevent such fishing by
Chinese flagged vessels; and

c. that therefore China has failed to exhibit due regard for the Philippines’
sovereign rights with respect to fisheries in its exclusive economic zone; and

DECLARES that China has breached its obligations under Article 58(3) of the
Convention;
(11) FINDS that Scarborough Shoal has been a traditional
fishing ground for fishermen of many nationalities and
DECLARES that China has, through the operation of its
official vessels at Scarborough Shoal from May 2012 onwards,
unlawfully prevented fishermen from the Philippines from
engaging in traditional fishing at Scarborough Shoal;
(12) FINDS, with respect to the protection and preservation of the marine
environment in the South China Sea:

a. that fishermen from Chinese flagged vessels have engaged in the

harvesting of endangered species on a significant scale;

b. that fishermen from Chinese flagged vessels have engaged in the

harvesting of giant clams in a manner that is severely destructive of the
coral reef ecosystem; and

c. that China was aware of, tolerated, protected, and failed to prevent the
afore- mentioned harmful activities; and

DECLARES that China has breached its obligations under Articles 192 and
194(5) of the Convention;
(13) FINDS further, with respect to the protection and preservation of the marine
environment in the South China Sea:

a. that China’s land reclamation and construction of artificial islands, installations, and
structures at Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North), Johnson Reef, Hughes
Reef, Subi Reef, and Mischief Reef has caused severe, irreparable harm to the coral reef
ecosystem;

b. that China has not cooperated or coordinated with the other States bordering the South
China Sea concerning the protection and preservation of the marine environment
concerning such activities; and

c. that China has failed to communicate an assessment of the potential effects of such
activities on the marine environment, within the meaning of Article 206 of the Convention;
and

DECLARES that China has breached its obligations under Articles 123, 192, 194(1), 194(5),
197, and 206 of the Convention;
(14) With respect to China’s construction of artificial islands, installations,
and structures at Mischief Reef:

a. FINDS that China has engaged in the construction of artificial islands,

installations, and structures at Mischief Reef without the authorisation of the
Philippines;

b. RECALLS (i) its finding that Mischief Reef is a low-tide elevation, (ii) its
declaration that low-tide elevations are not capable of appropriation, and (iii)
its declaration that Mischief Reef is within the exclusive economic zone and
continental shelf of the Philippines; and

c. DECLARES that China has breached Articles 60 and 80 of the Convention

with respect to the Philippines’ sovereign rights in its exclusive economic
zone and continental shelf;
(15) FINDS, with respect to the operation of Chinese law enforcement
vessels in the vicinity of Scarborough Shoal:

a. that China’s operation of its law enforcement vessels on 28 April 2012

and 26 May 2012 created serious risk of collision and danger to
Philippine ships and personnel; and

b. that China’s operation of its law enforcement vessels on 28 April 2012

and 26 May 2012 violated Rules 2, 6, 7, 8, 15, and 16 of the Convention
on the International Regulations for Preventing Collisions at Sea, 1972;
and

DECLARES that China has breached its obligations under Article 94 of

the Convention; and
(16) FINDS that, during the time in which these dispute resolution
proceedings were ongoing, China:

a. has built a large artificial island on Mischief Reef, a low-tide elevation

located in the exclusive economic zone of the Philippines;

b. has caused—through its land reclamation and construction of artificial

islands, installations, and structures—severe, irreparable harm to the coral
reef ecosystem at Mischief Reef, Cuarteron Reef, Fiery Cross Reef, Gaven
Reef (North), Johnson Reef, Hughes Reef, and Subi Reef; and

c. has permanently destroyed—through its land reclamation and

construction of artificial islands, installations, and structures—evidence of
the natural condition of Mischief Reef, Cuarteron Reef, Fiery Cross Reef,
Gaven Reef (North), Johnson Reef, Hughes Reef, and Subi Reef; and
FINDS further that China:

d. has aggravated the Parties’ dispute concerning their

respective rights and entitlements in the area of Mischief Reef;

e. has aggravated the Parties’ dispute concerning the

protection and preservation of the marine environment at
Mischief Reef;
f. has extended the scope of the Parties’ dispute concerning the protection
and preservation of the marine environment to Cuarteron Reef, Fiery Cross
Reef, Gaven Reef (North), Johnson Reef, Hughes Reef, and Subi Reef; and

g. has aggravated the Parties’ dispute concerning the status of maritime

features in the Spratly Islands and their capacity to generate entitlements to
maritime zones; and

DECLARES that China has breached its obligations pursuant to Articles 279,
296, and 300 of the Convention, as well as pursuant to general international
law, to abstain from any measure capable of exercising a prejudicial effect in
regard to the execution of the decisions to be given and in general, not to
allow any step of any kind to be taken which might aggravate or extend the
dispute during such time as dispute resolution proceedings were ongoing.
LGBT V. COMELEC (2010)

In an age that has seen international law evolve geometrically in scope and promise,
international human rights law, in particular, has grown dynamically in its attempt
to bring about a more just and humane world order. For individuals and groups
struggling with inadequate structural and governmental support, international
human rights norms are particularly significant, and should be effectively enforced
in domestic legal systems so that such norms may become actual, rather than ideal,
standards of conduct.

Our Decision today is fully in accord with our international obligations to protect
and promote human rights. In particular, we explicitly recognize the principle of
non-discrimination as it relates to the right to electoral participation, enunciated in
the UDHR and the ICCPR.
The principle of non-discrimination is laid out in Article 26 of
the ICCPR, as follows:

Article 26

All persons are equal before the law and are entitled without
any discrimination to the equal protection of the law. In this
respect, the law shall prohibit any discrimination and
guarantee to all persons equal and effective protection against
discrimination on any ground such as race, colour, sex,
language, religion, political or other opinion, national or social
origin, property, birth or other status.
In this context, the principle of non-discrimination requires
that laws of general application relating to elections be
applied equally to all persons, regardless of sexual orientation.
Although sexual orientation is not specifically enumerated as
a status or ratio for discrimination in Article 26 of the ICCPR,
the ICCPR Human Rights Committee has opined that the
reference to sex in Article 26 should be construed to include
sexual orientation. Additionally, a variety of United Nations
bodies have declared discrimination on the basis of sexual
orientation to be prohibited under various international
agreements.
We stress, however, that although this Court stands willing to
assume the responsibility of giving effect to the Philippines
international law obligations, the blanket invocation of
international law is not the panacea for all social ills. We refer
now to the petitioners invocation of the Yogyakarta Principles
(the Application of International Human Rights Law In
Relation to Sexual Orientation and Gender Identity), which
petitioner declares to reflect binding principles of
international law.
At this time, we are not prepared to declare that these
Yogyakarta Principles contain norms that are obligatory on the
Philippines. There are declarations and obligations outlined in
said Principles which are not reflective of the current state of
international law, and do not find basis in any of the sources
of international law enumerated under Article 38(1) of the
Statute of the International Court of Justice. Petitioner has not
undertaken any objective and rigorous analysis of these
alleged principles of international law to ascertain their true
status.
We also hasten to add that not everything that society or a
certain segment of society wants or demands is automatically
a human right. This is not an arbitrary human intervention
that may be added to or subtracted from at will. It is
unfortunate that much of what passes for human rights today
is a much broader context of needs that identifies many social
desires as rights in order to further claims that international
law obliges states to sanction these innovations. This has the
effect of diluting real human rights, and is a result of the
notion that if wants are couched in rights language, then they
are no longer controversial.
Using even the most liberal of lenses, these Yogyakarta
Principles, consisting of a declaration formulated by various
international law professors, are at best de lege ferenda and
do not constitute binding obligations on the Philippines.
Indeed, so much of contemporary international law is
characterized by the soft law nomenclature, i.e., international
law is full of principles that promote international
cooperation, harmony, and respect for human rights, most of
which amount to no more than well-meaning desires, without
the support of either State practice or opinio juris.
As a final note, we cannot help but observe that the social
issues presented by this case are emotionally charged, societal
attitudes are in flux, even the psychiatric and religious
communities are divided in opinion. This Courts role is not to
impose its own view of acceptable behavior. Rather, it is to
apply the Constitution and laws as best as it can, uninfluenced
by public opinion, and confident in the knowledge that our
democracy is resilient enough to withstand vigorous debate.
VINUYA V. EXECUTIVE SECRETARY
(2010)
In the international sphere, traditionally, the only means available for individuals to bring a claim
within the international legal system has been when the individual is able to persuade a government
to bring a claim on the individuals behalf.[55] Even then, it is not the individuals rights that are being
asserted, but rather, the states own rights. Nowhere is this position more clearly reflected than in the
dictum of the Permanent Court of International Justice (PCIJ) in the 1924 Mavrommatis Palestine
Concessions Case:

By taking up the case of one of its subjects and by resorting to diplomatic action or international
judicial proceedings on his behalf, a State is in reality asserting its own right to ensure, in the person
of its subjects, respect for the rules of international law. The question, therefore, whether the present
dispute originates in an injury to a private interest, which in point of fact is the case in many
international disputes, is irrelevant from this standpoint. Once a State has taken up a case on behalf
of one of its subjects before an international tribunal, in the eyes of the latter the State is sole
claimant.
Since the exercise of diplomatic protection is the right of the State, reliance on the
right is within the absolute discretion of states, and the decision whether to exercise
the discretion may invariably be influenced by political considerations other than the
legal merits of the particular claim. As clearly stated by the ICJ in Barcelona Traction:

The Court would here observe that, within the limits prescribed by international
law, a State may exercise diplomatic protection by whatever means and to
whatever extent it thinks fit, for it is its own right that the State is asserting. Should
the natural or legal person on whose behalf it is acting consider that their rights are
not adequately protected, they have no remedy in international law. All they can do
is resort to national law, if means are available, with a view to furthering their
cause or obtaining redress. The municipal legislator may lay upon the State an
obligation to protect its citizens abroad, and may also confer upon the national a
right to demand the performance of that obligation, and clothe the right with
corresponding sanctions. However, all these questions remain within the province
of municipal law and do not affect the position internationally.
The State, therefore, is the sole judge to decide whether its
protection will be granted, to what extent it is granted, and
when will it cease. It retains, in this respect, a discretionary
power the exercise of which may be determined by
considerations of a political or other nature, unrelated to the
particular case.
We fully agree that rape, sexual slavery, torture, and sexual violence are
morally reprehensible as well as legally prohibited under contemporary
international law. However, petitioners take quite a theoretical leap in
claiming that these proscriptions automatically imply that that the
Philippines is under a non-derogable obligation to prosecute international
crimes, particularly since petitioners do not demand the imputation of
individual criminal liability, but seek to recover monetary reparations
from the state of Japan. Absent the consent of states, an applicable treaty
regime, or a directive by the Security Council, there is no non-derogable
duty to institute proceedings against Japan. Indeed, precisely because of
states reluctance to directly prosecute claims against another state, recent
developments support the modern trend to empower individuals to
directly participate in suits against perpetrators of international crimes.
Nonetheless, notwithstanding an array of General Assembly
resolutions calling for the prosecution of crimes against
humanity and the strong policy arguments warranting such a
rule, the practice of states does not yet support the present
existence of an obligation to prosecute international crimes. Of
course a customary duty of prosecution is ideal, but we cannot
find enough evidence to reasonably assert its existence. To the
extent that any state practice in this area is widespread, it is in
the practice of granting amnesties, immunity, selective
prosecution, or de facto impunity to those who commit crimes
against humanity.
Even the invocation of jus cogens norms and erga omnes
obligations will not alter this analysis. Even if we sidestep the
question of whether jus cogens norms existed in 1951,
petitioners have not deigned to show that the crimes
committed by the Japanese army violated jus cogens
prohibitions at the time the Treaty of Peace was signed, or that
the duty to prosecute perpetrators of international crimes is an
erga omnes obligation or has attained the status of jus cogens.
The Latin phrase, erga omnes, has since become one of the rallying cries
of those sharing a belief in the emergence of a value-based international
public order. However, as is so often the case, the reality is neither so
clear nor so bright. Whatever the relevance of obligations erga omnes as
a legal concept, its full potential remains to be realized in practice.

The term is closely connected with the international law concept of jus
cogens. In international law, the term jus cogens (literally, compelling
law) refers to norms that command peremptory authority, superseding
conflicting treaties and custom. Jus cogens norms are considered
peremptory in the sense that they are mandatory, do not admit
derogation, and can be modified only by general international norms of
equivalent authority.
Early strains of the jus cogens doctrine have existed since the 1700s, but peremptory
norms began to attract greater scholarly attention with the publication of Alfred von
Verdross's influential 1937 article, Forbidden Treaties in International Law. The
recognition of jus cogens gained even more force in the 1950s and 1960s with the ILCs
preparation of the Vienna Convention on the Law of Treaties (VCLT). Though there was a
consensus that certain international norms had attained the status of jus cogens, the ILC
was unable to reach a consensus on the proper criteria for identifying peremptory norms.

After an extended debate over these and other theories of jus cogens, the ILC concluded
ruefully in 1963 that there is not as yet any generally accepted criterion by which to
identify a general rule of international law as having the character of jus cogens. In a
commentary accompanying the draft convention, the ILC indicated that the prudent
course seems to be to x x x leave the full content of this rule to be worked out in State
practice and in the jurisprudence of international tribunals. Thus, while the existence of
jus cogens in international law is undisputed, no consensus exists on its substance,
beyond a tiny core of principles and rules.
Of course, we greatly sympathize with the cause of petitioners,
and we cannot begin to comprehend the unimaginable horror
they underwent at the hands of the Japanese soldiers. We are
also deeply concerned that, in apparent contravention of
fundamental principles of law, the petitioners appear to be
without a remedy to challenge those that have offended them
before appropriate fora. Needless to say, our government should
take the lead in protecting its citizens against violation of their
fundamental human rights. Regrettably, it is not within our
power to order the Executive Department to take up the
petitioners cause. Ours is only the power to urge and exhort the
Executive Department to take up petitioners cause.
DEL SOCORRO V. VAN WILSEM
(2014)
In international law, the party who wants to have a foreign law applied to a
dispute or case has the burden of proving the foreign law.  In the present case,
respondent hastily concludes that being a national of the Netherlands, he is
governed by such laws on the matter of provision of and capacity to support.
While respondent pleaded the laws of the Netherlands in advancing his
position that he is not obliged to support his son, he never proved the same.

It is incumbent upon respondent to plead and prove that the national law of
the Netherlands does not impose upon the parents the obligation to support
their child (either before, during or after the issuance of a divorce decree),
because Llorente v. Court of Appeals, has already enunciated that:
True, foreign laws do not prove themselves in our jurisdiction and our
courts are not authorized to take judicial notice of them.  Like any other
fact, they must be alleged and proved.

In view of respondent’s failure to prove the national law of the

Netherlands in his favor, the doctrine of processual presumption shall
govern. Under this doctrine, if the foreign law involved is not properly
pleaded and proved, our courts will presume that the foreign law is the
same as our local or domestic or internal law. Thus, since the law of the
Netherlands as regards the obligation to support has not been properly
pleaded and proved in the instant case, it is presumed to be the same
with Philippine law, which enforces the obligation of parents to support
their children and penalizing the non-compliance therewith.
We likewise agree with petitioner that notwithstanding that the national law of respondent states that
parents have no obligation to support their children or that such obligation is not punishable by law,
said law would still not find applicability, in light of the ruling in Bank of America, NT and SA v.
American Realty Corporation, to wit:

In the instant case, assuming arguendo that the English Law on the matter were properly pleaded
and proved in accordance with Section 24, Rule 132 of the Rules of Court and the jurisprudence laid
down in Yao Kee, et al. vs. Sy-Gonzales, said foreign law would still not find applicability.

Thus, when the foreign law, judgment or contract is contrary to a sound and established public
policy of the forum, the said foreign law, judgment or order shall not be applied.

Additionally, prohibitive laws concerning persons, their acts or property, and those which have for
their object public order, public policy and good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions agreed upon in a foreign country.

The public policy sought to be protected in the instant case is the principle imbedded in our
jurisdiction proscribing the splitting up of a single cause of action.
Section 4, Rule 2 of the 1997 Rules of Civil Procedure is pertinent
—

If two or more suits are instituted on the basis of the same cause
of action, the filing of one or a judgment upon the merits in any
one is available as a ground for the dismissal of the others.

Moreover, foreign law should not be applied when its application

would work undeniable injustice to the citizens or residents of the
forum. To give justice is the most important function of law;
hence, a law, or judgment or contract that is obviously unjust
negates the fundamental principles of Conflict of Laws.
Applying the foregoing, even if the laws of the Netherlands
neither enforce a parent’s obligation to support his child nor
penalize the non-compliance therewith, such obligation is still
duly enforceable in the Philippines because it would be of
great injustice to the child to be denied of financial support
when the latter is entitled thereto.

We emphasize, however, that as to petitioner herself,

respondent is no longer liable to support his former wife, in
consonance with the ruling in San Luis v. San Luis, to wit:
As to the effect of the divorce on the Filipino wife, the Court ruled that
she should no longer be considered married to the alien spouse.
Further, she should not be required to perform her marital duties and
obligations. It held:

To maintain, as private respondent does, that, under our laws,

petitioner has to be considered still married to private respondent and
still subject to a wife's obligations under Article 109, et. seq. of the Civil
Code cannot be just . Petitioner should not be obliged to live together
with, observe respect and fidelity, and render support to private
respondent. The latter should not continue to be one of her heirs with
possible rights to conjugal property. She should not be discriminated
against in her own country if the ends of justice are to be served.
Under the aforesaid special law, the deprivation or denial of
financial support to the child is considered an act of violence
against women and children.

In addition, considering that respondent is currently living in

the Philippines, we find strength in petitioner’s claim that the
Territoriality Principle in criminal law, in relation to Article 14
of the New Civil Code, applies to the instant case, which
provides that:“[p]enal laws and those of public security and
safety shall be obligatory upon all who live and sojourn in
Philippine territory, subject to the principle of public
international law and to treaty stipulations.” 
 On this score, it is indisputable that the alleged continuing
acts of respondent in refusing to support his child with
petitioner is committed here in the Philippines as all of the
parties herein are residents of the Province of Cebu City.  As
such, our courts have territorial jurisdiction over the offense
charged against respondent. It is likewise irrefutable that
jurisdiction over the respondent was acquired upon his arrest.
The act of denying support to a child under Section 5(e)(2) and
(i) of R.A. No. 9262 is a continuing offense, which started in
1995 but is still ongoing at present. Accordingly, the crime
charged in the instant case has clearly not prescribed.

Given, however, that the issue on whether respondent has

provided support to petitioner’s child calls for an examination
of the probative value of the evidence presented, and the truth
and falsehood of facts being admitted, we hereby remand the
determination of this issue to the RTC-Cebu which has
jurisdiction over the case.
OBERGEFELL V. HODGES (2015)

Persuasive effect of US SC decisions in our jurisdiction,

consider this:

https://www.supremecourt.gov/opinions/14pdf/14-556_3204
.pdf
—landmark case allowing same-sex marriage in the entire
U.S.A. based on equality and dignity.
UNITED NATIONS

Visit:
http://www.un.org/en/sections/what-we-do/uphold-internatio
nal-law/
INTERNATIONAL CRIMINAL
COURT
VIST: https://www.icc-cpi.int/about

Commentary on ICC performance:

http://www.economist.com/node/21553010/comments#comme
nts

Background of ICC:
https://www.theguardian.com/world/2009/jan/26/internationa
l-criminal-court

Powers of ICC: http://www.bbc.com/news/world-11809908

“"This cause … is the cause of all humanity "

– Former United Nations Secretary-General Kofi Annan.

FULL TEXT COMPLAINT OF SABIO AGAINST PRESIDENT
DUTERTE:
http://www.philstar.com/headlines/2017/04/24/1693506/full-te
xt-criminal-complaint-filed-vs-duterte-international-criminal
Statement : 13 October 2016—Statement of the Prosecutor of
the International Criminal Court, Fatou Bensouda concerning
the situation in the Republic of the Philippines

https://www.icc-cpi.int/legalAidConsultations?name=1610
13-otp-stat-php
The Statement:

My Office is aware of worrying reported extra-judicial

killings of alleged drug dealers and users in the Philippines,
which may have led to over 3,000 deaths in the past three
months.  I am deeply concerned about these alleged killings
and the fact that public statements of high officials of the
Republic of the Philippines seem to condone such killings
and further seem to encourage State forces and civilians
alike to continue targeting these individuals with lethal
force.
Extra-judicial killings may fall under the jurisdiction of the
International Criminal Court ("ICC" or "Court") if they are
committed as part of a widespread or systematic attack
against a civilian population pursuant to a State policy to
commit such an attack. 

The Republic of the Philippines is a State Party to the ICC

and as such, the Court has jurisdiction over genocide,
crimes against humanity and war crimes committed on the
territory or by nationals of the Philippines since 1
November 2011, the date when the Statute entered into
force in the Philippines.
Let me be clear: any person in the Philippines who incites or
engages in acts of mass violence including by ordering,
requesting, encouraging or contributing, in any other manner, to
the commission of crimes within the jurisdiction of the ICC is
potentially liable to prosecution before the Court.
My Office, in accordance with its mandate under the Rome Statute,
will be closely following developments in the Philippines in the
weeks to come and record any instance of incitement or resort to
violence with a view to assessing whether a preliminary
examination into the situation of the Philippines needs to be
opened. [Emphasis supplied.]
The Office of the Prosecutor of the ICC conducts independent and
impartial preliminary examinations, investigations and prosecution
of the crimes of genocide, crimes against humanity and war crimes.
The Office has been conducting  investigations in: Uganda; the
Democratic Republic of the Congo; Darfur, Sudan; the Central
African Republic (two separate investigations); Kenya; Libya; Côte
d'Ivoire, Mali and Georgia. The Office is also conducting
preliminary examinations relating to the situations in Afghanistan;
Burundi; the registered vessels of Comoros, Greece and Cambodia;
Colombia; Gabon; Guinea; Iraq/UK; Palestine, Nigeria and Ukraine.
[email protected]. Source : Office of the Prosecutor.