PUBLIC INTERNATIONAL LAW NOTES

COURSE OUTLINE
I. PRELIMINARY CONSIDERATIONS
A. Brief history of Public International Law
B. Definition of International Law
- body of rules & principles which are recognized as legally binding and governs
the relations of states and other entities with one another (as between international
organizations, between international organizations and states, between international
organizations and states and the people).
C. Functions of International Law
1.
2.
3.
4.
5.
6.

defines the existence of states

provides framework of diplomatic relations
governs international agreements
sets forth rules for international commerce
governs individual human rights
regulates protection of the global environment (air, land, sea and global
resources)
7. VITAL FUNCTION: eliminates elements of unlawful force in the solution of
human conflicts and provides basis for the orderly management of
international relations; social progress
D. Foundations of International Law
1. Principle of comity
2. Principle of reciprocity/mutuality
3. Principle of independence
4. Principle of equality of states
E. Theories About International Law
1. Natural Law School
- there are certain normative principles that are true or self evident and which
exists independently of their codification or enforcement by human beings.
- naturalists maintain that the law of nations is binding upon states because it is a
branch of great law of nature, the sum of those principles which ought to control human
conduct, being founded on the very nature of man as a rational and social being.
2. Positivist School

- the basis of obligation of international law is founded in the CONSENT OF

STATES.
- This school of thoughts provides that consent of states is given:
a. Tacitly in case of customary international law
b. Expressly in case of conventional law
c. Presumed in case of General Law of Nations
3. Eclectic/Groatian School
- occupy middle position between the natural and positivist school
- recognizes that international law is in part a product of natural law and at the
same time the positive consent of states to be bound by its rules.
F. Basis of International Law/Schools or Theories in the Study of International Law
The schools of study of international law are the basis of the obligation in
international law.
G. Theories as to the Basis of International Law
1. Direct Consent
- international law is based upon the direct consent of States upon their individual
acceptance of its principles and rules.
2. Implied Consent
-

a fiction to account for the acceptance of the great body of general principles
and specific rules that had come to form the body of customary law.

3. Mutuality of Interest
-

international law is a subjective law; its binding force depends upon mutuality
of interest which could only be maintained by altering from time to time such
rules as it might be no longer to the interest of the parties to observe.

4. Necessity
-

the fact that nations have common interest constitutes the actual community of
states and at the same time imperatively demands a rule of law so that
international law may be said to be based upon the very necessity for its
existence.

H. Two Main Branches of International Law

1. Public International Law (Law of Nations)

2. Private International Law (Conflicts of Law)
I. Branches of International Law
1. Human rights law
2. Humanitarian law
3. Refugee law
4. Criminal law
5. Economic law
6. Environmental law
J. General Classifications of Public International Law
1. Consular law
2. Diplomatic law
3. International Aviation law
4. International criminal law
5. International environmental law
6. International human right law
7. International humanitarian law
8. International space law
9. International trade law
10. law of state responsibility
11. Rules according to higher law
12. UN Conventions on the law of the Sea
13. Use of force continuum
K. Public International Law vs Private International Law
Public International Law (Law of Nations)
- regulates the relationship between states and international entities
- concerned with questions of rights between nations.
Private International Law (Conflicts of Law)
- regulates comity of states in giving effect in one to the municipal laws of another
relating to private persons.
- PRINCIPLE: One country gives respect and give effect to the laws of
another so far as can be done consistently with its own interest.
L. Is International Law a True Law?
- based on popular views it is not a true law because:

 law of nation lacks the equality of positive authority or command.

no legal duty/obligation of obedience on the part of those whom it is
addressed with no courts to interpret and enforce international law.
no penalty prescribed for disobedience with lack of physical power to
enforce obedience.
-

International law is recognized as law of practice

sanctions for failure to comply though indirect is similar to municipal
law.
includes force of public opinion, self help, intervention by third party
states, sanctions of international organizations such as the UN and as a
last resort WAR.

M. Classification of International Law

1. Customary
2. Conventional
3. General International Law
N. Public International Law vs Municipal Law
PUBLIC INTERNATIONAL LAW
- deals with states relations
- sources are customs and treaties
- law is not a law above but between
sovereign states
- laws not codified except on particular
subjects
- penalty/sanction is addressed by pressure
put upon a state to behave in good faith,
diplomacy, retaliations or severance of
economic ties, war as an act of self defense
(as recognized by the UN). Only strong
countries may impose these sanctions to
weak countries in reality.

MUNICIPAL LAW
- deals with internal affairs of a state
- sources are customs and precedents
grown within the states jurisdiction and
legislation enacted by its law making body.
- law of sovereign over individuals subject
to state authority.
- laws are codified
- penalty may be in the form of
imprisonment (in violation of the penal
code) or sanctions of damages and
administrative sanctions.

** In International Tribunal the international law will prevail over Municipal law.
** In a municipal tribunal, one must distinguish if conflicts involve international
law and foreign international law in which case international law prevails;

** Municipal law prevails if conflicts involve conflicts between municipal law and
international law.
O. Relation Between International Law & Municipal Law
1. Monism
- views international law and national law as part of single legal system with
domestic law derived from the broader framework provided by international law.
2. Dualism
- considers international law and internal law of states as wholly separate legal
systems, the former creating obligations only among sovereign nations and the latter
allowing each state to determine the means and form by which it carries our its
obligations.
P. Relation between Public International law and Philippine Municipal Law
Q. Conflicts between Public International Law and Municipal Law
- Municipal law, when in conflict with PIL is given effect in municipal courts, the
reason being that such courts are organs of municipal law and are accordingly bound by it
in all circumstances.
- the fact that international law has been made part of the law of the land does not
mean to imply it is primary over national or municipal law.
- in Doctrine of Incorporation, PIL is given standing equal but not superior to
national legislative enactments.
PRINCIPLES AND DOCTRINES:
DOCTRINE OF TRANSFORMATION
-

requires legislative action to make the treaty enforceable in the municipal

sphere.
Municipality law expressly adopts an international law thru an act of
legislation.
The doctrine observed in treaties

DOCTRINE OF INCORPORATION
- Considers rules of international law as forming part of the law of the land and no
further legislative action is needed to make such rules applicable in the domestic sphere.
- the doctrine observed in customary international law.

ADOPTION DOCTRINE
- Municipality law impliedly adopts an international law.
HARMONIZATION DOCTRINE
-International law is applied only when appropriate.
RESTRICTED AUTOMATIC DOCTRINE
- Based on Article 2, section 2 of Constitutional provision in the Philippines,
Philippines adopts the generally accepted principles of international law as part of the
law of the land. It stresses the automatic adoption of international law but involves
restriction that such automatic adoption of international law is only as to generally
accepted principles of international law.
R. Conflict between a Treaty and a Constitution
-

in states where Constitution is the highest law of the land, both statutes and
treaties may be invalidated if they are in conflict with the Constitution.
In the Philippines, the Supreme Court may declare a treaty unconstitutional if
it is in conflict with the Constitution.

S. Structure of Public International law

1. Law of Treaties and other international agreements
2. Law on Armed Conflicts
3. Rubrics of international delinquencies or torts
4. International responsibilities of States
T. the Role of Public International Law
U. World Politics
V. Related Cases
i.

The Interhandel Case (Decision of the International Court of Justice,

March 21, 1949)

ii.

Kuroda v Jalandoni, 83 Phil 171

Facts
Shinegori Kuroda, a former Lieutenant-General of the Japanese Imperial
Army and Commanding General of the Japanese Imperial Forces in the
Philippines was charged before the Philippine Military Commission for war

crimes. As he was the commanding general during such period of war, he was
tried for failure to discharge his duties and permitting the brutal atrocities and
other high crimes committed by his men against noncombatant civilians and
prisoners of the Japanese forces, in violation of of the laws and customs of
war.
Kuroda, in his petition, argues that the Military Commission is not a valid
court because the law that created it, Executive Order No. 68, is
unconstitutional. He further contends that using as basis the Hague
Conventions Rules and Regulations covering Land Warfare for the war crime
committed cannot stand ground as the Philippines was not a signatory of such
rules in such convention. Furthermore, he alleges that the United States is not
a party of interest in the case and that the two US prosecutors cannot practice
law in the Philippines.
Issue
1.Whether or not Executive Order No. 68 is constitutional
2.Whether or not the US is a party of interest to this case
3.Whether or not Atty. Melville S. Hussey and Robert Port is allowed to
practice law profession in the philippines.
Ruling
The Supreme Court ruled that Executive Order No. 68, creating the National
War Crimes Office and prescribing rules on the trial of accused war criminals,
is constitutional as it is aligned with Sec 3,Article 2 of the Constitution which
states that The Philippines renounces war as an instrument of national policy
and adopts the generally accepted principles of international law as part of the
law of the nation. The generally accepted principles of international law
includes those formed during the Hague Convention, the Geneva Convention
and other international jurisprudence established by United Nations. These
include the principle that all persons, military or civilian, who have been
guilty of planning, preparing or waging a war of aggression and of the
commission of crimes and offenses in violation of laws and customs of war,
are to be held accountable. In the doctrine of incorporation, the Philippines
abides by these principles and therefore has a right to try persons that commit
such crimes and most especially when it is committed againsts its citizens. It
abides with it even if it was not a signatory to these conventions by the mere
incorporation of such principles in the constitution.
The United States is a party of interest because the country and its people have
been equally, if not more greatly, aggrieved by the crimes with which the
petitioner is charged for. By virtue of Executive Order No. 68, the Military
Commission is a special military tribunal and that the rules as to parties and

representation are not governed by the rules of court but by the very
provisions of this special law.
On the 3rd issue, the court ruled that the appointment of the two American
attorneys is not violative of our national sovereignty. It is only fair and proper
that the U.S. which has submitted the vindication of crimes against her
government and her people to a tribunal of our nation should be allowed
representation in the trial of those very crimes. The lest that we could do in the
spirit of comity is to allow this representation in said trial.
iii.

Ichong v Hernandez, May 31, 1957

Facts: RA 1180 An Act to Regulate The Retail Business prohibits foreigners
and foreign owned corporations to engage in the retail business/trade in the
Philippines. Petitioner assails the Act contending it violates the Treaty of
Amity between the Philippines and China and is unconstitutional.
Issue: Whether or not RA 1180 a valid exercise of police power of the State.
Held: The court held that RA 1180 is a valid exercise of the police power of
the State since such sovereign power of the State could not be bargained
through any Treaty or contract especially when the intent of such legislation is
to remedy a real and actual danger to the national economy due to the
increasing dominance and control of aliens in the retail trade in the country.

iv.

Phil. Association of Free Labor Unions (PAFLU) et al. v Secretary of

Labor et al., February 27, 1969

v.

Paquete Habana case, 125 US 677 (1900)

Paquete Habana.; The Lola, 175 U.S. 677 (1900), was a landmark United
States Supreme Court case that reversed an earlier court decision allowing the
capture of fishing vessels under Prize (law). Its importance rests on the fact
that it integrated Customary international law with American law, perhaps the
quintessential position of those who hold a monist perspective of international
law.
Background of the case
In April 1898 two fishing vessels, the Paquete Habana, and the Lola separately
left Cuban ports in Havana in order to fish. The two vessels were eventually
captured by US Naval vessels as part of Admiral William T. Sampson's
blockade of Cuba, who was ordered to execute the blockade 'in pursuance of
the laws of the United States, and the law of nations applicable to such cases.'
The vessels were placed within Cuba's territorial waters at the onset of the

Spanish-American War and then taken to Key West, where both vessels were
eventually auctioned by the district court.
Admiral Sampson justified the seizures by stating that most fishing vessels,
flying under the Spanish banner were manned by excellent seamen, "liable for
further service" as naval reserves, an asset that could eventually be used
against US interests in the Spanish-American War.
The owners of the vessels however made an appeal to the circuit courts, citing
a long held tradition by nations of exempting fishing vessels from prize
capture in times of war. This "tradition", a primary example of customary
international law, dates back from an order by Henry IV in 1403, and has
more or less been observed by a large majority of States ever since.
At the time of capture both vessels had no evidence of aiding the enemy, and
were unaware of the US naval blockade. No arms were found on board, and
no attempts were made to either run the blockade or resist capture.
The court's decision
The United Supreme Court, which cited lengthy legal precedents established
to support the existence of a customary international law that exempted
fishing vessels from prize capture eventually found the capture of both vessels
as "unlawful and without probable cause", reversed the District Court's
decision, and ordered the proceeds of the auction as well as any profits made
from her cargo to be restored to the claimant, "with damages and costs".
vi.

Mejoff v Director of Prisons 90 PHIL 70 (1951)

Facts:
This is a second petition for habeas corpus by Boris Mejoff, the first having
been denied in a decision of this Court on July 30, 1949. "The petitioner Boris
Mejoff is an alien of Russian descent who was brought to this country from
Shanghai as a secret operative by the Japanese forces during the latter's regime
in these Islands. Upon liberation, he was arrested as a Japanese spy by U. S.
Army Counter Intelligence Corps. Thereafter, the People's Court ordered his
release. But the Deportation Board taking his case up found that having no
travel documents, Mejoff was an illegal alien in this country, and consequently
referred the matter to the immigration authorities. After the corresponding
investigation, the Immigration Board of Commissioners declared on April 5,
1948 that Mejoff had entered the Philippines illegally in 1944, without
inspection and admission by the immigration officials at a designated port of
entry and, therefore, it ordered that he be deported on the first available
transportation to Russia. The petitioner was then under custody, he having
been arrested on March 18, 1948. In October 1948, after repeated failures to
ship this deportee abroad, the authorities moved him to Bilibid Prison at
Muntinglupa where he has been confined up to the present time, inasmuch as
the Commissioner of Immigration believes it is for the best interests of the

country to keep him under detention while arrangements for his departure are
being made. Two years having elapsed since the aforesaid decision was
promulgated, the Government has not found ways and means of removing the
petitioner out of the country, and none are in sight, although, it should be said
in fairness to the deportation authorities that it was through no fault of theirs
that no ship or country would take the petitioner.
Issue:
Whether or not Boris Mejoff should be released from prison pending his
deportation.
Ruling:
The protection against deprivation of liberty without due process of law, and
except for crimes committed against the laws of the land, is not limited to
Philippine citizens but extends to all residents, except enemy aliens, regardless
of nationality. Moreover, Sec. 3, Art. II of the Constitution of the Philippines
"adopts the generally accepted principles of international law as part of the
law of the Nation." And in a resolution entitled, "Universal Declaration Of
Human Rights," and approved by the General Assembly of the United
Nations, of which the Philippines is a member, at its plenary meeting on
December 10, 1948, the right to life and liberty and all other fundamental
rights as applied to all human beings were proclaimed. It was there resolved
that "all human beings are born free and equal in degree and rights" (Art. 1);
that "everyone is entitled to all the rights and freedom set forth in this
Declaration, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, nationality or social origin,
property, birth, or other status" (Art. 2); that "every one has the right to an
effective remedy by the competent national tribunals for acts violating the
fundamental rights granted him by the Constitution or by law" (Art. 8); that
"no one shall be subjected to arbitrary arrest, detention or exile" (Art. 9 ); etc.
Premises considered, the writ will issue commanding the respondents to
release the petitioner from custody upon these terms: that the petitioner shall
be placed under the surveillance of the immigration authorities or their agents
in such form and manner as may be deemed adequate to insure that he keep
peace and be available when the Government is ready to deport him. The
surveillance shall be reasonable and the question of reasonableness shall be
submitted to this Court or to the Court of First Instance of Manila for decision
in case of abuse. No costs will be charged.
source: http://rabbit-icecold.blogspot.com/
vii.

Reyes v Bagatsing GR no. 65366, October 25, 1983

Facts

Retired Justice Jose B.L. Reyes, in behalf of the Anti-Bases Coalition, sought
for a permit from the City of Manila to hold a peaceful march and rally on
October 26, 1983 starting from Luneta to the gates of the United States
embassy. The objective of the rally was to peacefully protest the removal of
all foreign military bases and to present a petition containing such to a
representative of the Embassy so it may be delivered to the United States
Ambassador. This petition was to initially compel the Mayor of the City of
Manila to make a decision on the application for a permit but it was
discovered that a denial has already been sent through mail. It also included a
provision that if it be held somewhere else, permit may be issued. The
respondent mayor alleges that holding the rally in front of the US Embassy is
a violation of the resolutions during the Vienna Convention on Diplomatic
Relations adopted in 1961 and of which the Philippines is a signatory. In the
doctrine of incorporation, the Philippines has to comply with such generally
accepted principles of international law as part of the law of the land. The
petitioner, on the other hand, contends that the denial of the permit is a
violation of the constitutional right of the freedom of speech and expression.
Issue
Whether or not the Anti-Bases Coalition should be allowed to hold a peaceful
protest rally in front of the US Embassy
Ruling
The Supreme Court ruled to allow the rally in front of the US Embassy to
protect the exercise of the rights to free speech and peaceful assembly and on
the ground that there was no showing of the existence of a clear and present
danger of a substantive evil that could justify the denial of the permit. These
rights are not only assured by our constitution but also provided for in the
Universal Declaration of Human Rights. Between the two generally accepted
principles of diplomatic relations and human rights, the former takes higher
ground. The right of the freedom of expression and peaceful assembly is
highly ranked in the scheme of constitutional values.
Source: http://pil-rizalyn.blogspot.com/2008/06/jbl-reyes-vs-bagatsing-gr-no65366.html
viii.

Head Money cases, Edye v Robertson 112 US 580 (1884)

Facts:
In 1882 the Congress passed an act providing that a duty of fifty cents should
be collected for each and every passenger who was not a citizen of the United
States, coming from a foreign port to any port within the United States.
Individuals and steamship companies brought suit against the collector of

customs at New York, Mr. WH Robertson, for the recovery of the sums of
money collected. The act was challenge on the grounds that it violated
numerous treaties of the US government with friendly nations.
Issue:
WON the act is void because of the conflict with the treaty.
Ruling:
A treaty is a compact between independent nations, which depends for its
enforcement upon the interest and honor of the governments that are parties to
a treaty. Treaties that regulate the mutual rights of citizens and subjects of the
contracting nations are in the same category as acts of Congress. When these
rights are of such a nature as to be enforced by a court of justice, the court
resorts to the treaty as it would to a statute. However, a constitution gives a
treaty no superiority over an act on congress. In short, so far as a treaty made
by the United States with any foreign nation can become the subject of
judicial cognizance in the courts of this country, it is subject to such acts as
Congress may pass for its enforcement, modification, or repeal.
ix.

Whitney v Robertson 124 US 190 (1888)

Facts:
Merchants were importing sugar from San Domingo, and when they arrived at
the custom house in NY, they claimed b/c of the treaty btwn US & San
Domingo, that the goods should be admitted duty free. The collector at the
port refused, and the merchants were made to pay $21,936 in duties.
Merchants then brought this claim to get back the duties paid. Merchants (P)
argued that the treaty btwn US and San Domingo promised to provide most
favored nation treatment to imports from San Domingo. The most favored
nation treatment was from a treaty btwn US and the Hawaiian Islands, where
certain goods, including sugar, were exempt from dutycollection. Collector of
the port (D) argued that he treated the goods as dutiable articles under the acts
of Congress.
Issue:
Whether a treaty supersedes conflicting acts of Congress. -Not necessarily,
both are binding.
Holding: Affirmed for D.

Reasoning: Both self-executing treaties and acts of Congress are considered

supreme laws of the land, and both should have effect. Justice Fields says that
when they conflict with each other, "the one last in date will control the other."
Since the acts of Congress were dated last, they control. He also says that if
the country with which the treaty is made is dissatisfied with the action of the
US legislative dept, then they may present a complaint to the executive had of
the govt. RULE: In the case of a conflict btwn a federal statute and a treaty,
the one last in date will control.
Notes Hierarchy - last in time rule Here the act of congress has trumped an
earlier treaty Dualism again Domestically, we care about checks and
balances, that treaty no longer has any effect But in international realm, this
is a problem, b/c we are not honoring the treaty with Dominican Republic
Breaching treaty - can be taken to ICJ, etc. Example of dualist - domestic vs.
international obligations
Source http://dcomfortroom.blogspot.com/2009/12/whitney-v-robertson-124us-190-1888.html
II. SOURCES OF PUBLIC INTERNATIONAL LAW
A. Sources of Public International Law as applied by the International Court of
Justice
Direct Sources
i.
International Conventions and Treaties
- most abundant sources of PIL
- between parties of treaties, the stipulations constitute the law between
them.
- ex: Vienna Convention on the Law of Treaty
ii.
International Customs
- custom exists when there is a clear and continuous habits of doing
certain things develop under the conviction that it is obligatory and right.
- International Court of Justice held that customary rule mist be based on
constant and uniform usage.
iii.
General Principles of law
- recognized by civilized nations
- Ex: Res judicata, prescriptions, due process, law of nature, estoppel, ex
aequo et bono (fair and equity).
Secondary Sources (Subsidiary means for determining rules of law)
iv.
Teaching of most highly qualified publicists of the various nations
v.
Judicial Decisions
B. Equity in International Law

Principle of Ex Aequo et Bono

- means what is fair and good
- falls under the general principle of law
- equitable principle of law
C. Classification of sources of Public International Law
i.
ii.

Direct sources
Indirect, secondary, subsidiary sources

D. Related Cases
i. Agustin vs Edu, February 2, 1979 (88 SCRA 195)
III. THE INDIVIDUAL AND INTERNATIONAL LAW
A. Individual under International Law
i.

The Law on Nationality

NATIONALITY
- the bond that unites a person to a given state which constitutes his membership in
the particular state, giving him a claim to the protection of that state and subjects him
to the obligations created by the laws of that state.
- in International Law, the term nationality is used in place of citizenship which is
understood in municipal law as being possessed of the full rights and privileges of
membership in a political community.
ii.

Rules on Multiple Nationalities (1930 Hague Convention on Conflict of

Nationality Laws)

1930 HAGUE CONVENTION ON CONFLICT OF NATIONALITY LAWS

- Provides the following rules:
A. RULES IN DETERMINING A PERSON'S NATIONALITY
ARTICLE I. It is for each state to determine under it's own law who are its
nationals. This law shall be recognized by other States in so far as it is consistent with
international conventions, international customs, and the principles of law generally
recognized with regards to nationality.

ARTICLE II. Any questions as to whether a person possesses the nationality of a

particular State shall be determined in accordance with the law of that State.
B. RULES ON MULTIPLE NATIONALITIES
ARTICLE III. A person having 2 or more nationalities may be regarded as it's
national by each of the States whose nationality he possesses.
ARTICLE IV. S State may not afford diplomatic protection to one of its nationals
against a State whose nationality such person also possesses.
ARTICLE V. Within a Third State, a person having multiple nationalities shall be
treated as if he had only one. The Third State State shall, of the nationalities which
any such person possesses, recognize exclusively in it's territory either:
1. The nationality of the country in which he is habitually and principally
resident, or
2. The nationality of the country with which in the circumstances he
appears to be in fact most closely connected - DOCTRINE OF EFFECTIVE
NATIONALITY.
ARTICLE VI. A person possessing two nationalities acquired without any
voluntary act on his part. May renounce on of them with the authorization of the State
whose nationality he desires to surrender. This authorization may not be refused in the
case of a person who has his habitual and principal residence abroad, if the conditions
laid down in the law of the State whose nationality he desires to surrender are
satisfied.
iii.

DOCTRINE OF EFFECTIVE NATIONALITY

- Within a Third State, a person having multiple nationalities shall be treated as if he

had only one. The Third State State shall, of the nationalities which any such person
possesses, recognize exclusively in it's territory either:
1. The nationality of the country in which he is habitually and principally
resident, or
2. The nationality of the country with which in the circumstances he
appears to be in fact most closely connected
iv.

DOCTRINE OF INDELIBLE ALLEGIANCE

-

a State may prohibit its nationals from changing their nationality under certain
circumstances.

ex: C.A. No. 63 (Act providing for the ways in which Philippine Citizenship
may be lost or re-acquired) which provides that Filipino citizen may lose his
citizenship by subscribing to an oath of allegiance to support the constitution
or laws of a foreign country upon attaining 2 years of age or more; Provided

however that a Filipino may not divest himself of Philippine citizenship in any
manner while the Republic of the Philippines is at war with any country.
-

v.

THE EXEMPTION TO THE GENERAL RULE PROVIDED BY

ARTICLE 15 OF THE UNIVERSAL DECLARATION OF HUMAN
RIGHTS " that no one shall be arbitrarily deprived of his nationality nor
denied the right to change his nationality."
DOCTRINE OF NEMO POTEST EXUERE PATRIAM

- doctrine providing that the bond of nationality could never be broken.

- no one might transfer his allegiance to another state without the consent of the
state which had first claim upon him.
- the basis of the Doctrine of Indelible Allegiance
B. Individual as subject of International Law
i.

Subjects and objects of international law defined

Subject of Public International Law

- an entity directly possessed with personality with the rights and obligations in the
international legal order
- ex: sovereign state as Philippines ( with capacity to sue in the International Court of
Justice or may be sued in international tribunal)
2 KINDS OF SUBJECTS IN PUBLIC INTERNATIONAL LAW:
1. COMPLETE INTERNATIONAL PERSONALITY
- ex: a state which may be divided into categories:
A. Single or Simple State (ex. Philippines)
B. Composite state
B.1. Federal States (United States of America, united states of Switzerland)
- exists when the central or federal government exercises authority over both
the various states in the Union and the
citizens thereof.
- regarded as an INTERNATIONAL PERSON
- have its own governmental machineries and absorbs all individual states
associated together.
B.2. Confederation
- has some power over it's individual state but not over the individual citizens
of the member states.

- not regarded as an INTERNATIONAL PERSON, each of the member state

being represented by its own delegate.
- loose union or alliance formed through a treaty among various states, each of
which is fully sovereign and independent.
B.3. Real Union
- ex. United Arab Republic
- formed by two sovereign states linked together by a common government in
external affairs and by a common chief of state. The union then possesses a single
international personality that merges the separate personalities of the states as a unified
whole.
B.4. Personal Union
- merger of two separate states in the sense that both have the same individual
as the accidental or temporary head of state. The union however has no separate
international personality since each of the member states has its own government and its
own separate international personality.
- currently, there is no personal union in existence
B.5. Incorporate Union
- one where the internal and external organs of government of two states are
merged into one resulting in a single international personality.
- ex: United kingdom of Great Britain and Ireland
2. INCOMPLETE, IMPERFECT, QUALIFIED OR QUASI-INTERNATIONAL
PERSONALITIES
1. Dependent states
-subjected to control & sovereignty of some superior state/s in the conduct of their
external & foreign affairs.
2. Belligerent & insurgent communities
- Rebels and insurgents are organized group with no rights under the international law but
if civil strife threatens to interfere with autonomy of foreign intercourse and tends to
jeopardize sovereignty of the state over the insurgent community certain insurgent rights
may be tacitly admitted.
- if the act is piracy then it is private in character and ends are not political and no
insurgent rights arise.
- parent state still liable for acts committed by the insurgent community within the
jurisdiction of said parent state even if foreign state admits existence of insurgent rights.

- if hostile acts are committed by insurgents against a foreign state the latter may choose
to punish them or turn them over to the parent state.
- foreign states ought to refrain from interfering in hostilities between parent state and
insurgent community.
Bellingerent community rights arise when:
1. End must be political in character
2. Hostilities must be a character of war and carried out in accordance with law of war
3. Proportion of revolts must be to render the issue uncertain
4. The conduct of hostilities and general government of the revolting community must be
in the hands of a responsible organization.
Recognition of the international personality status of a bellingerent community in
the international order is ONLY FOR LIMITED PERIOD OF TIME.
3. Colonies, dependencies and possession
- they cannot be states but the international legal order grants them international
personality in a restricted degree (sign international conventions and become member of
United Nations.
- COLONY is a dependent community with a number of citizens but remain subject to
mother state.
- DEPENDENCY is a territory distinct from country in which the supreme sovereign
power resides but belonging rightfully to it subject to laws and regulations which the
sovereign may think proper to prescribe.
- POSSESSION is held by a title other than that of mere physical conquest.
4. Mandate and trust territories
MANDATES - former territorial possessions of states defeated in the First World War
and placed under control of League of Nations. They are afforded the chance to develop
economically and socially by more advanced nations.
TRUST TERRITORIES - under UN supervision, the Administering Authority
exercising sovereignty power over them.
5. Public and political corporations or companies
- private corporations fall under private international law but are also involved in public
international law when in time of war their property and other rights are impaired or
when maritime law has been infringed.

6. International administrative bodies

- vested with international personality as they are beyond the control and authority of any
particular state including the region in which seat of the organization may be situated.
Object of Public International Law
- indirectly vested with rights and obligations in the international sphere
- ex: filipino private citizen ( who while entitled to certain rights which other states ought
to respect has no recourse except to course his grievances through the Republic and its
diplomatic officers)

ii.

Status of individual under international law

- While Private individuals are regarded as objects of PIL, they are recently
accorded a NEW STATUS IN INTERNATIONAL LAW and regarded as subjects
in the international order with their importance laid down by the ff:
- Charter of the UN and Universal Declaration of Human Rights
- Nuremberg and Tokyo War Tribunals for war crimes
- norms of general international law prohibiting piracy (committed only by private
individuals and not by acts of state)
- espionage rules
-court practice of permitting foreigners to prosecute claims
- rules safeguarding rights of alines and minorities
- punishment on illegal use of flag.
- procedures in admiralty and maritime matters
- special status accorded to refugees
NOTE: INDIVIDUALS therefore are TRUE SUBJECTS IF INTERNATIONAL
LAW and STATES are only AGENTS through which they act in default of more
convenient means of giving effects to their common interests.
ACT OF AN INDIVIDUAL BECOMES AN ACT OF STATE
- when his act may be imputed on the State.
- determined on the basis of the national legal order, the law of the State whose act is in
question.
- an act or performance not permitted or prescribed by law of the State cannot be
imputable on the State.
- becomes imputable on a State when performed by an individual who is an organ of the

State and competent under the law to represent the State in relation to other States such as
the Head of State.
iii.
iv.
v.
vi.
vii.

International Organizations as subjects of International law

Non-governmental organizations
Multinational corporations
Complete international personalities
Incomplete, imperfect, qualified or quasi-international personalities

IV. STATES IN THE INTERNATIONAL SYSTEM

A. State defined
- group of people capable of procreation and sekf defense living in a definite territory
(must be a land not sea) possessed of government to which inhabitants render obedience.
B. Elements or Attributes of a State
I. According to majority school of thought
1. Group of people (man & woman capable of procreation).
2. Definite territory (fixed to settle disputes on jurisdiction; a definite space where
acts of state esp. Coercive acts can be carried out legally as allowed by the general
international law).
3. Government (machinery or instrument by which power in a state expresses its will
and exercises its functions).
4. Independence (freedom from external control in the conduct of one's external and
internal affairs).
II. According to Minority view
The majority school of thoughts and:
5. Possession of sufficient degree of civilization
6. Recognition by the Family of Nations
C. Fundamental Rights of States
i.
ii.
iii.
iv.
v.

The rights of existence, integrity and self-preservation

The rights of sovereignty and independence
The right of equality
The right of property and jurisdiction
The right of legation or of diplomatic intercourse

The rights of existence, integrity and self-preservation

Basis

- existence presupposes its right to survive which is predicated not only to physical
maintenance of its territorial integrity but also physical expansion that follows valid
acquisition of territories. When its existence is in jeopardy it has a right of self
preservation.
1. The right to acquire territories
a. Modes of acquiring territories
1. discovery and occupation
- only stateless territory could be acquired by discovery and occupation.
- Discovery should be coupled with occupation. An effective occupation is
one that would effectively take real possession of the territory and establish some kind of
administration.
2. prescription (acquisitive prescription)
- must be continuous, public and adverse whether good or bad faith of
some other states territory and there must be a lapse of reasonable period of time.
3. cession
- territory is acquired voluntarily in case of donation or sale or involuntary
as in the result of war.
- perfection of cession commences upon meeting of minds.
- mere lease effectuated by the owner in favor of another state cannot
transfer ownership. A state making the cession is a mere usurper or intruder with no
transferable right, the cession is purposeless and inefficacious.
4. conquest and subjugation
- CONQUEST is the acquisition of the sovereignty of a country by force
of arms exercised by an independent power.
- Mere physical conquest gives an INCHOATE TITLE; for this title to
ripen into ownership subjugation must follow.
- SUBJUGATION takes place if the formal cession is made in the
TREATY OF PEACE.
- TREATY OF PEACE is essentially entered into through the use of
force and intimidation.
- Under the general international law, while duress usually vitiates the
consent given to a treaty, an EXCEPTION is the TREATY OF PEACE for such treaty
is precisely entered into as a result of fear.
- Present UN Charter however the use of threat and force is considered
illegal.

5. accretion
- is the process of attaching or incorporating something to what an owner
of territory already has.
- may be natural (caused by natural force such as current of river) or
artificial (as in act of state in reclaiming part of sea in reclamation projects).
b. Modes of losing territories
1. Abandonment (must be physical abandonment of the property with the intent
never to return to the same).
2. Prescription (extinctive prescription)
3. Cession
4. Subjugation
5. forces of nature (i.e. avulsion; volcanic eruption)
6. Successful revolutions and secessions (mere declaration of independence does
not commence a new state success has to follow)
c. Space Law
i. Air space
ii. Outer space
LEGAL STATUS OF SPACE:
- space beyond the atmosphere is incapable by its very nature of
appropriation on behalf of any particular sovereignty.
- theoretically similar to the rule of freedom of the seas where
seas cant be possessed by any particular government and necessarily open to free spatial
navigation by all those who may venture into its unknown confines.
JURISDICTION OVER SPACE ACTIVITIES
- Control and supervision vested in international bodies (i.e. UN)
- It may be exercised by the country conducting the activity from
which the departure was physically made and of citizens conducting the enterprise.
2. THE RIGHT TO SELF DEFENSE
REQUISITES: (Art. 51 of UN Charter)
1. An armed attack
2. Attack must be against a member of the UN
3. Security Council must not have acted yet
DOCTRINE OF SELF-HELP

- the right to self-defense which is an extension of the right to self-preservation hence

under the general international law the right continues to exist even if attack is made
against a non-UN member state.
ALLIANCE EXISTS
- because members of UN have implicit faith in each others desire for world peace.
- some members feel the necessity of taking measures to give maximum feeling of
security either thru mutual protection or by outright combination of strength.
3. Cases
Island of Palmas Case
Facts: In the 16th Century Spain discovered an island midway between Mindanao and
Dutch East Indies. However Spain did not effectively possess the territory. It was Holland
which exercised authority over the land. As a successor of Spain, the US asked that the
island be awarded to it.
Held: The island cannot be given to the US for the inchoate title possessed by Spain
never ripened into a real title for its failure to effectively possess and administer the
territory within a reasonable period of time.
Inchoate Title discoverer must be given full opportunity to effectively possess and in
the meantime other states are legally excluded from the occupation of the territory
involved.

MIDTERM
The rights of sovereignty and independence
1. Sovereignty defined
2. Sovereignty vs Independence
3. Essential attributes of sovereignty
4. Intervention
a. Kinds of Intervention
b. Grounds of Intervention
c. The South Vietnam Case

The right of equality

1. Meaning of equality in Public International Law
2. Consequences of legal equality of states
3. Acts of State Doctrine
a. Underhill vs Hernandez
b. Banco Nacional de Cuba vs Sabbatino
The right of property and jurisdiction
1. The right of property or domain
A. Three kinds of domains
i. Territorial
ii. Maritime or Fluvial
iii. Aerial
B. The Law of the Sea
2. The right of jurisdiction
A. Jurisdiction of States
i.
Territoriality Principle
1. The Lotus Case
2. Trail Smelter Arbitration
ii.
Nationality Principle
1. Blackmer v United States
2. The Nottebohm Case
Principle of Genuine Link
- the bond of nationality must reflect a genuine connection between
the individual and the state.
3. Mejoff vs Director of Prisons 90 PHIL 70
iii.

Protective Principle
- any state has the right to punish acts even if committed outside its
territory when such act constitutes attacks against its security or
the falsification of money, stamps, seal or official marks. The

rule is applicable even when the acts in question are not punishable
in the country where they are committed.
- The principle is justified by the fact that the state exercising such
jurisdiction is the very state against which the crime is directed.
iv.

Universality Principle
- the universal principle of jurisdiction of any state over crimes
against international law such as piracy, slave trade, air
highjacking, genocide and terrorism.
1. Filartiga vs Pena-Irala
2. Attorney General of Israel vs Eichmann

PRINCIPLE OF PRESENCE
- Any court of state acquires jurisdiction over crimes committed where the accused is
present.
v.

Passive Personality Principle

- determines the jurisdiction of the state by reference to the
nationality of the person injured (victim) in the offense.
Active Personality Principle
- determines the jurisdiction of the state by reference to the
nationality of the accused.
1. united States vs Fawaz Yunis

vi.

Conflict of Jurisdiction

vii.

Extradition
ELEMENTS:
1. act of sovereignty of two states
2. request of one state to another for the delivery of a person
3. delivery of the person requested for the purpose of a trial
proceeding
** This requires an extradition treaty between 2 states where
there is a mutual consent between states.

1. united States vs Alvarez-Machain

2. Secretary of Justice vs Hon. Ralph Lantion, Oct. 17, 2000
B. Immunity from Jurisdiction
i.
Immunity from jurisdiction
ii.
Immunity of head of states
iii.
State immunity
1. US vs. Ruiz May 22, 1985
2. US vs. Reyes, March 1, 1993
3. Holy See vs. Rosario Jr., December 1, 1994
4. Republic of Indonesia vs. Vinzon, June 26, 2003
iv.
Diplomatic and Consular Immunities
v.
Immunity of International Organizations
1. International Catholic Migration Commission vs Calleja,
September 28, 1990
2. Southeast Asian Fisheries Development Center vs. Acosta and
Lasco vs. United Nations Revolving Fund for Natural Resources
Exploration, February 23, 1995.
3. WHO vs Aquino, November 29, 1972
4. Liang vs People, March 26, 2001
vi.
The Act of State Doctrine
3. Principle of Extraterritoriality vs Principle of Extraterritoriality
EXTERRITORIALITY PRINCIPLE
-

the fiction of international law by virtue of which certain foreign persons and
their things are exempted from the jurisdiction of a state on the theory that
they form an extension of their own states territory.
Deals with the exemption of persons and things
Premised on international customs

EXTRATERRITORIALITY PRINCIPLE
-

the exemption of foreign persons from the laws and jurisdiction of the state in
which they presently reside, an exemption which can exist only by virtue of a
treaty stipulation to this effect.
Deals with exemption of persons only
Exists by virtue of a treaty only

4. The Most Favored Nation Clause

5. Doctrine of State Imputability

The right of legation or of diplomatic intercourse

RIGHT OF LEGATION
- a.k.a. RIGHT OF REPRESENTATION
- right accorded to a state to be represented by an ambassador or diplomatic agent in
another state. The right includes the establishment of an embassy or ministry in the
receiving state.
1. Diplomatic Law/ Diplomatic Relations
ACTIVE RIGHT OF LEGATION
-

right to send diplomatic representatives

PASSIVE RIGHT OF LEGATION

- right to receive diplomatic representatives
4 CLASSES OF DIPLOMATIC REPRESENTATIVES:
1. Ambassadors, ambassador extraordinary and plenipotentiary and papal nuncio
2. ministers ministers and papal internuncios
3. ministers residents
4. charges daffaires and charges daffaires ad interim
PERSONA NON GRATA
-

expression used where a diplomat is no longer welcome to the government to

which he is accredited after he has already been received and has entered upon
his duties or before arriving in the territory of the receiving state.
A request to recall an envoy which the receiving state declares to be persona
non grata is usually granted at once. If the sending state refuses to do so the
receiving state may dismiss him.

a. Establishment of diplomatic mission

b. Classes of heads of mission
c. Diplomatic functions
d. Appointment and accreditation of heads of mission
e. Privileges and immunities of diplomatic agents

- The persons of diplomatic agents are inviolable. He is not subject to the local
laws of the receiving state.
- Reason for the immunity and privileges: to enable the diplomat to exercise his
duties and functions without the impediment from the authorities. It is also based on
function and necessity.
- Diplomatic immunity is a political question. Courts should refuse to look
beyond a determination by the executive branch of the government.
f. Termination of diplomatic functions
g. Vienna Convention on Diplomatic Relations
2. Consular Law / Consular Relations
a. Establishment of consulates
b. Classes of consular officials
c. Consular functions
d. Appointment of consular official
e. Privileges and immunities of consular officials
f. Termination of Consular functions
G. Vienna Convention on Consular Relations
3. Cases
a. US Diplomatic and Consular Staff
D. Fundamental Duties of States
E. State Responsibility
i. Caire Claim, France vs. Mexico
ii. Corfu Channel Case, UK vs. Albania
iii. Nicaragua vs. US
iv. US vs. Iran
v. home Mission Society Claim
vi. Short vs. Iran
vii. Chorzow Factory case
F. State Recognition
G. State Succession
H. Succession of Governments
I. De Facto and Revolutionary Government
V. THE LAW OF TREATIES
VI. INTERNATIONAL HUMAN RIGHTS

VII. THE LAW OF WAR AND INTERNATIONAL HUMANITARIAN LAW

A. The law of War and Armed Conflict
B. Neutrality
VIII. SETTLEMENT OF DISPUTES
A. Aerial Incidence Case
B. Nicaragua vs. US
C. Case concerning East Timor
IX. INTERNATIONAL CRIMINAL LAW
X. INTERNATIONAL ENVIRONMENTAL LAW
XI. INTERNATIONAL ECONOMIC LAW