2. BASES TEÓRICAS
2.1 ESTADO DEL ARTE
DEFINITIONS:
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AMENDMENT: an alteration of one or a few specific provisions of the Constitution. Its main purpose is to improve specific provisions of the Constitution.
The changes brought about by amendments will not affect the other provisions of the Constitution.
REVISION: An examination of the entire Constitution to determine how and to what extent it should be altered. A revision implies substantive change, affecting the Constitution as a whole.
Constituent power Legislative power 1. The power to formulate
a Constitution or to propose amendments to or revisions of the Constitution and to ratify such proposal
1. The power to pass, repeal or amend
ordinary laws or statutes (as opposed to organic law)
2. It is exercised by Congress (by special constitutional
conferment), by a
Constitutional Convention or Commission, by the people through initiative and referendum, and ultimately, by the sovereign electorate
2. It is an ordinary power of Congress and of the people, also through initiative and
referendum.
3. The exercise of constituent power does not need the approval of the Chief Executive
the exercise of legislative power ordinarily needs the approval of the Chief Executive, except when done by people through initiative and
referendum.
Three (3) steps necessary to give effect to amendments and revisions:
1. Proposal of amendments or revisions by the proper constituent assembly;
2. Submission of the proposed amendments or revisions; and
3. Ratification.
Proposal of amendments:
Amendments may be proposed by:
1. Congress, acting as a constituent assembly, by a 3/4 vote of all its members.
a. The power of Congress to propose amendments is NOT part of its ordinary legislative power.
b. The only reason Congress can exercise such power is that the Constitution has granted it such power.
2. Constitutional Convention:
a. How a Constitutional Convention may be called
i. Congress may call a ConCon by a 2/3 vote of all its members; or
ii. By a majority vote of all its members, Congress may submit to the electorate the question of whether to call a ConCon or not.
b. Choice of which constituent assembly (either Congress or ConCon) should initiate amendments and revisions is left to the discretion of Congress. In other words, it is a political question.
c. BUT: The manner of calling a ConCon is subject to judicial review, because the Constitution has provided for voting requirements.
d. If Congress, acting as a constituent assembly, calls for a ConCon but does not provide the details for the calling of such ConCon, Congress - exercising its ordinary legislative power - may supply such details. But in so doing, Congress (as legislature) should not transgress the resolution of Congress acting as a constituent assembly.
e. Congress, as a constituent assembly and the ConCon have no power to appropriate money for their expenses.
Money may be spent from the treasury only pursuant to an appropriation made by law.
3. People’s Initiative
a. Petition to propose such amendments must be signed be at least 12% of ALL registered voters.
b. Every legislative district represented by at least 3% of the registered voters therein.
c. Limitation: It cannot be exercised more often than once every 5 years
Defensor-Santiago v. COMELEC, G.R. 127325 Requires implementing legislation: The Supreme Court held that RA 6735, the Initiative and Referendum law is insufficient. Therefore, amendment by initiative and referendum must still await a valid law.
NOTE:
1. While the substance of the proposals made by each type of constituent assembly is not subject to judicial review, the manner the proposals are made is subject to judicial review.
2. Since these constituent assemblies owe their
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existence to the Constitution, the courts may determine whether the assembly has acted in accordance with the Constitution.
3. Examples of justiciable issues:
a. Whether a proposal was approved by the required number of votes in Congress (acting as a constituent assembly).
b. Whether the approved proposals were properly submitted to the people for ratification.
Proposal of Revisions
By Congress, upon a vote of 3/4 of its members By a constitutional convention
Ratification
Amendments and revisions proposed by Congress and/or by a ConCon:
Valid when ratified by a MAJORITY of votes cast in a plebiscite.
Plebiscite is held not earlier than 60 days nor later than 90 days from the approval of such amendments or revisions.
Amendments proposed by the people via initiative:
Valid when ratified by a MAJORITY of votes cast in a plebiscite.
Plebiscite is held not earlier than 60 days nor later than 90 days after the certification by COMELEC of the petition's sufficiency.
Requisites of a valid ratification:
1. Held in a plebiscite conducted under the election law;
2. Supervised by the COMELEC; and 3. Where only franchised voters (registered)
voters take part.
Issues regarding ratification:
The Constitution does not require that amendments and revisions be submitted to the people in a special election. Thus, they may be submitted for ratification simultaneously with a general election.
The determination of the conditions under which proposed amendments/revisions are submitted to the people falls within the legislative sphere. That
Congress could have done better does not make the steps taken unconstitutional.
All the proposed amendments/revisions made by the constituent assemblies must be submitted for
ratification in one single plebiscite. There cannot be a piece-meal ratification of amendments/revisions.
Presidential proclamation is NOT required for effectivity of amendments/revisions, UNLESS the proposed amendments/revisions so provide.
ARTICLE XVIII - TRANSITORY PROVISIONS
Effectivity of the 1987 Constitution
The 1987 Constitution took effect immediately upon its ratification.
According to the SC, this took place on February 2, 1987, which was the day the
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Page 72 of 125 PUBLIC INTERNATIONAL LAW
THE NATURE OF INTERNATIONAL LAW
International Law – Set of rules and principles that governs the relationships between States and other international actors which under Modern International Law includes International Organizations, Transnational Corporations and Individuals.
Distinction between a subject and object of international law
1. Subject - An entity that has rights and responsibilities under international law; it can be a proper party in transactions involving the application of international law among members of the international community.
2. Object - A person or thing in respect of which rights are held and obligations assumed by the subject; it is not directly governed by the rules of international law; its rights are received, and its responsibilities imposed, indirectly through the instrumentality of an international agency.
NOTE: Given the trend in International Law today, with the birth of the ICC and Arbitration Courts, the line between a Subject and Object of International is increasingly being blurred.
Divisions of International Law
1. Laws Of Peace- governs the normal relations of States
2. Laws Of War - rules during periods of hostility
3. Laws Of Neutrality- rules governing States not involved in the hostilities
SOURCES OF INTERNATIONAL LAW
Article 38 of the Statute of the International Court of Justice (ICJ).
1. Primary
a. Treaty / international conventions - Generally, a treaty only binds the parties.
However, treaties may be considered a direct source of Int'l law when concluded by a sizable no. of States, and is reflective of the will of the family of nations (in which case, a treaty is evidence of custom).
b. Custom – General and consistent practice of states followed by them from a sense of legal obligation. 2 Elements:
i. State Practice – a consistent and uniform external conduct of States.
Generally, both what states say and what they do are considered state practice.
ii. Opinio Juris - State practice must be accompanied with the conviction that the State is legally obligated to do so by int'l law, and not through mere courtesy or comity, or because of humanitarian considerations.
c. General Principles Of Law - Principles common to most national systems of law;
rules based on natural justice. Ex. good faith, estoppel, exhaustion of local remedies
2. Secondary
a. Judicial Decisions - a subsidiary means for the determination of rules of law (e.g., determining what rules of customary IL exist) that is acceptable so long as they correctly interpret and apply int'l law.
NOTE: Even decisions of national courts, when applying int'l law, are acceptable. Ex. Principles on diplomatic immunity have been developed by judgments of national courts.
b. Teachings Of The Most Highly Qualified Publicists -- The word 'Publicist' means 'learned writer.' Learned writings, like judicial decisions, can be evidence of customary law, and can also play a subsidiary role in developing new rules of law.
Requisites for Highly Qualified Publicist 1. Fair and impartial representation of law.
2. By an acknowledged authority in the field.
Q: What is 'INSTANT' CUSTOM?
A: Customary law may emerge even within a relatively short period of time, if within that period, State Practice has been uniform and extensive. It comes about as a spontaneous activity of a great number of states supporting a specific line of action.
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Page 73 of 125 TREATIES
A treaty is an International Agreement in written form concluded between States that may be embodied in one or more instrument, and is governed by International Law. (Art. 2, Vienna Convention on the Law of Treaties).
Q: If not in writing, is it still considered a treaty?
A: Yes. Oral agreements between States are recognized as treaties under customary international law (but are extremely rare nowadays).
1. Difference between Treaty and Executive Agreement
TREATY EXECUTIVE
AGREEMENT
1. Political Issues 2. Changes in
National Policy 3. Involve
international arrangements of a permanent character
[CODE: TAAI]
1. Have Transitory effectivityAdjustment of details carrying out well-established national policies and traditions
3. Arrangements of temporary nature 4. Implementation of treaties, statutes, treaties with the President, such must be RATIFIED by the 2/3 of the Senate to become valid and effective (Art.7, Sec 21)
Do not need to be ratified by the Senate
2. Principal Rules of International Law in Connection to Treaties
a. Pacta Sunt Servanda – All parties to a Treaty must comply with their Treaty Obligation in Good Faith.
NOTE: A state can avoid PERFORMANCE if the treaty obligation collides with its Constitution, but it CANNOT escape LIABILITY it may incur as a result of such non-performance.
b. Rebus Sic Stantibus - A party is not bound to perform a treaty if there has been a fundamental change of circumstances since the treaty was concluded.
i. Described as the exception to the rule of pacta sunt servanda.
ii. justifies the non-performance of a treaty obligation if the subsequent condition in relation to which the parties contracted has changed so materially and unexpectedly as to create a situation in which the exaction of performance would be unreasonable.
iii. Rebus sic stantibus may not be invoked as a ground for terminating or withdrawing from a treaty:
a. if the treaty establishes a boundary b. if the 'fundamental change' is the
result of a breach by the party invoking it of an obligation under the treaty or of any other obligation owed to any other party to the treaty.
c. Jus Cogens - a rule which has the status of a preemptory (i.e., absolute, uncompromising) norm of international law where no derogation may be permitted.
Elements:
i. a norm accepted and recognized
ii. by the int'l community of States as a whole
iii. as a norm from which no derogation is permitted.
iv. It can only be modified by a subsequent norm having the same character.
If a treaty, at the time of its conclusion, conflicts with jus cogens, it is void.
Examples:
1. prohibition against the unlawful use of force;
2. prohibition against piracy, genocide, and slavery
Steps in treaty-making process:
1. Negotiation;
2. Signature;
3. Ratification;
4. Exchange of Instruments of Ratification;
5. Registration with UN.
Reservation
A unilateral statement made by a State when signing, ratifying, accepting, approving or acceding to a treaty,
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Page 74 of 125 whereby it purports to exclude or to modify the legal
effects of certain provisions of the treaty in their application to that State.
Invalidity of treaties: Grounds 1. Error of fact
2. Fraud 3. Corruption 4. Duress 5. Jus cogens Termination Of Treaty
1. Expiration of term;
2. Accomplishment of purpose;
3. Impossibility of performance;
4. Loss of subject matter;
5. Novation;
6. Desistance of parties;
7. Extinction of one of parties, if treaty is bipartite;
8. Occurrence of vital change of circumstances;
9. Outbreak of war; and 10. Voidance of treaty.
Succession to treaties: the “Clean Slate” rule When one state ceases to exist and is succeeded by another on the same territory, the newly independent state is not bound to maintain in force, or become a party to, any treaty although it may agree to be bound by treaties made by its predecessor.
INTERNATIONAL LAW AND MUNICIPAL LAW
Effect of Municipal Law in International Law
2 Theories:
1. Dualism – domestic and international law are independent of each other, as they regulate different subject matters. IL regulates the relations of sovereign states, while municipal law regulates the internal affairs of a state. Thus, no conflict can ever arise between international and municipal law, because the two systems are mutually exclusive. If IL is applied within a state, it is only because it has been expressly incorporated by municipal law. The Philippines is a dualist state.
2. Monism – Monists have a unitary concept of law and see all law – including both international and municipal law – as an integral part of the same system. If conflict exists between international law and municipal law, international law must prevail. Germany is a monist state.
2 Views:
1. Doctine Of Incorporation - rules of international law form part of the law of the land and no further legislative action is needed to make such rules applicable in the domestic sphere.
a. Such is recognized in art. 2, sec. 2, as the Philippines "adopts the generally accepted principles of international law as part of the law of the land."
b. Rules of international law are given equal standing with, but are not superior to, national legislative enactments.
Thus, the Constitution, as the highest law of the land, may invalidate a treaty in conflict with it. (Secretary of Justice v.
Hon. Lantion and Mark Jimenez, Jan.
18, 2000)
2. Doctrine Of Transformation - the generally accepted rules of int'l law are not per se binding upon the State but must first be embodied in legislation enacted by the lawmaking body and so transformed into municipal law. Only when so transformed will they become binding upon the State as part of its municipal law.
In case of conflict between international law and domestic law:
1. International rule: Before an international tribunal, a state may not plead its own law as an excuse for failure to comply with international law. The state must modify its laws to ensure fulfillment of its obligations under the treaty, unless the constitutional violation is manifest and concerns a rule of internal law of fundamental importance.
2. Municipal rule: When the conflict comes before a domestic court, domestic courts are bound to apply the local law. Should a conflict arise between an international agreement and the Constitution, the treaty would not be valid and operative as domestic law. It does not, however, lose its character as international law.
SUBJECTS OF INTERNATIONAL LAW
State
Elements of a state:
Art. 1, Montevideo Convention:
1. a permanent population;
2. a defined territory;
3. government;
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Page 75 of 125 4. capacity to enter into relations with other
States
Distinctions Between Sovereignty And Independence
1. SOVEREIGNTY is the broader term. It refers to the supreme and uncontrollable power inherent in the State by which such State is governed. It has 2 aspects:
a. INTERNAL- freedom of the State to manage its own affairs.
b. EXTERNAL- freedom of the State to direct its foreign affairs.
2. INDEPENDENCE is synonymous with external sovereignty. It is defined as the power of a State to manage its external affairs without direction or interference from another State.
Principles Of State Succession
1. State Succession is the substitution of one State by another, the latter taking over the rights and some of the obligations of the former.
2. 2 types of State Succession:
a. Universal- takes place when a State is completely annexed by another, or is dismembered or dissolved, or is created as a result of merger of 2 or more States.
b. Partial - takes place when a portion of the territory of a State loses part of its sovereignty by joining a confederation or becoming a protectorate or suzerainty.
3. Effects of State Succession
a. The allegiance of the inhabitants of the predecessor State is transferred to the successor State.
b. The political laws of the predecessor State are automatically abrogated but the non-political laws are deemed continued unless expressly repealed or contrary to the institutions of the new sovereign.
c. The public property of the predecessor State is acquired by the successor State but not the tort liability of the former.
d. Treaties entered into by the predecessor State are not considered binding on the successor State except those dealing with local rights and duties such as servitudes and boundaries.
Succession Of Government
1. In succession of government, the integrity of the original State is not affected as what takes place is only a change in one of its elements, the government.
2. Effects of a change in government:
a. If effected by peaceful means, the new government inherits all rights and obligations of the old government.
b. If effected by violence, the new government inherits all the rights of the old government. However, the new government may reject the obligations of the old government if they are of a political complexion. If the obligations are the consequence of the routinary act of administration of the old government, they should be respected.
Territory
1. Methods used in defining the territorial sea 2. Normal baseline method
Under this method, the territorial sea is drawn from the low-water mark of the coast to the breadth claimed, following its sinuosities and curvatures but excluding the internal waters in bays and gulfs.
3. Straight baseline method
Straight lines are made to connect appropriate points on the coast without departing radically from its general direction.
The waters inside the lines are considered internal.
4. Some modes of acquisition:
a. Cession
It is a derivative mode of acquisition by which territory belonging to one state is transferred to the sovereignty of another state in accordance with an agreement between them.
b. Subjugation
It is a derivative mode of acquisition by which the territory of one state is conquered in the course of war and thereafter annexed and placed under sovereignty of the conquering state.
c. Prescription
It is a derivative mode of acquisition by which territory belonging to one state is transferred to the sovereignty of another state by reason of the adverse and uninterrupted possession thereof by the latter for a sufficiently long period of time.
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Page 76 of 125 RIGHT OF LEGATION
1. It is the right of a state to maintain diplomatic relations with other states.
2. Types:
a. Active- right to send diplomatic representatives
b. Passive- right to receive diplomatic representatives
Functions of Diplomatic Missions:
representing sending state in receiving state;
protecting in receiving state interests of sending state and its nationals;
negotiating with government of receiving state;
promoting friendly relations between sending and receiving states and developing their economic, cultural, and scientific relations;
ascertaining by all lawful means conditions and developments in receiving state and reporting thereon to government of sending
ascertaining by all lawful means conditions and developments in receiving state and reporting thereon to government of sending