Bar Q and A #44

Under Article 38 of the Statute of the International Court of Justice, the primary sources of international law are the following:

1. International conventions, e.g., Vienna Convention on the Law of Treaties.

2. International customs, e.g., cabotage, the prohibition against slavery, and the prohibition against torture.

3. General principles of law recognized by civilized nations, e.g., prescription, res judicata, and due process.

The subsidiary sources of international law are judicial decisions, subject to the provisions of Article 59, e.g., the decision in the Anglo- Norwegian Fisheries Case and Nicaragua v. United States, and teachings of the most highly qualified publicists of various nations, e.g., Human Rights in International Law by Lauterpacht and International Law by Oppenheim-Lauterpacht.

Opinio juris sive necessitates or simply opinion juris means that as an element in the formation of customary norm in international law, it is required that States in their conduct amounting to general practice, must act out of a sense of legal duty and not only by the motivation of courtesy, convenience or tradition. According to the International Court of Justice in the North Sea Continental Shelf Cases (ICJ Reports, 1969, para. 77), and quoted by the Philippine Supreme Court in Mijares v Ranada (455 SCRA 397 [2005]), “Not only must the acts amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.”

“Hard law” is used to designate a norm or rule of conduct accepted and recognized by the international community of states as a whole, as a source of law binding on them. “Hard law” produces obligations which when breached gives rise to international responsibility and, consequently, to reparation.

On the other hand, “soft law” has no binding force and pertains to a statement or declaration of principles with moral force on the conduct of states but no normative character and without intent to create enforceable obligations. In the development of international law, a number of “soft law” principles or declarations have become the basis of norm-creation in treaty-making and in general practice of states in customary-norm formation.

The following are the sources of International Law:

a. International conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. International custom, as evidence of a general practice accepted as law;
c. The general principles of law recognized by civilized nations

To establish customary international law, two elements must concur: the general state practice and opinio juris sire necessitatis. State practice refers to the continuous repetition of the same or similar kind of acts or norms by states. Opinio juris requires that the state practice or norm be carried out in such a way as to be evidence of the belief that it is obligatory by the existence of a rule of law requiring it (Bayan Muna v. Romulo, 641 SCRA 244).

The agreement is valid. The comfort women and their descendants cannot assert individual claims against Japan. As stated in Davis & Moore vs. Regan, 453 U.S. 654, the sovereign authority of a State to settle claims of its nationals against foreign countries has repeatedly been recognized. This may be made without the consent of the nationals or even without consultation with them. Since the continued amity between a State and other countries may require a satisfactory compromise of mutual claims, the necessary power to make such compromises has been recognized. The settlement of such claims may be made by executive agreement.

The following are the distinctions between de facto recognition and de jure recognition of a government:

a. De facto recognition is provisional, de jure
recognition is relatively permanent;
b. De facto recognition does not vest title in the government to its properties abroad; de Jure recognition does;
c. De facto recognition is limited to certain juridical relations; de jure recognition brings about full diplomatic relations. (Cruz. International Law. 1996 ed.. p. 83.)

According to the CONSTITUTIVE THEORY, recognition is the last indispensable element that converts the state being recognized into an international person.

According to the DECLARATORY THEORY, recognition is merely an acknowledgment of the pre-existing fact that the state being recognized is an international person (Cruz, International Law, 2003 ed.)

Right of legation or the right of diplomatic intercourse is the right of the state to send and receive diplomatic missions, which enables states to carry on friendly intercourse. It is governed by the Vienna Convention on Diplomatic Relations (1961). The exercise of this right is one of the most effective ways of facilitating and promoting intercourse among nations. Through the active right of sending diplomatic representatives and the passive right of receiving them, States are able to deal more directly and closely with each other in the improvement of their mutual intercourse.

1. Under Article 32 of the Vienna Convention on Diplomatic Relations, a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative Jurisdiction except in the case of:
a. A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
b. An action relating to succession in which the diplomatic agent is invoked as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;
c. An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.

On the other hand, under Article 41 of the Vienna Convention on Consular Relations, a consular officer does not enjoy immunity from the Criminal jurisdiction of the receiving State. Under Article 43 of the Vienna Convention on Consular Relations, consular officers are not amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions. However, this does not apply in respect of a civil action either:
a. arising out of a contract concluded by a consular officer in which he did not contract expressly or impliedly as an agent of the sending State; or
b. by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel, or aircraft.

2. NO, he may not claim immunity from the jurisdiction of the local court. Under Article 41 of the Vienna Convention of Consular Relations, consuls do not enjoy immunity from the criminal jurisdiction of the receiving State. He is not liable to arrest or detention pending trial unless the offense was committed against his father, mother, child, ascendant, descendant or spouse. Consuls are not liable to arrest and detention pending trial except in the case of a grave crime and pursuant to a decision by the competent judicial authority. The crime of physical injuries is not a grave crime unless it be committed against any of the above- mentioned persons (Schneckenburger v. Moran, 63 Phil. 249).

3. YES, the case should be dismissed. Under Article 40 of the Vienna Convention on Diplomatic Relations, if a diplomatic agent is in the territory of a third State, which has granted him a passport visa if such visa was necessary, while proceeding to take up his post, the third State shall accord him inviolability and such other immunities as may be required to ensure his transit.