PUBLIC INTERNATIONAL LAW

FINALS EXAMINATION
I.

CONCEPT OF SUBJECT AND OBJECT OF INTERNATIONAL LAW

(DIFFERENTIATE AND GIVE AN EXAMPLE)

How can subject and object of international law be distinguished?

A subject of international law is an entity that has rights and responsibilities
under the law. It has an international personality in that it can directly assert rights and
be held directly responsible under the law of nations. It has the faculty of motivation
which means that it can be a proper party in transactions involving the application of the
law of nations among members of the international community. On the other hand, an
object of international law is the person or thing in respect of which rights are held and
obligations assumed by the subject. It is not directly governed by international law. Its
rights are received and its responsibilities imposed indirectly, through the instrumentality
of an intermediate agency.(Cruz,2000)
Not all subjects of international law enjoy the same rights and obligations. States
remain the predominant actors, but other actors have come to be recognized.
(Bernas,2009)

II.

APPLICATION OF PROTOCOL II. DISCUSS IN DETAIL THE SPECIFIC

PROVISIONS, THE MOST SIGNIFICANT ONE

What is Protocol II?

It is the first and only international agreement exclusively regulating the conduct
of parties in a non-international armed conflict promulgated in 1977. It develops and
supplements Article 3 common to the Geneva Conventions of 12 August 1949 without
modifying its existing conditions or application. A definition of a non-international
armed conflict covered by this expanded guarantee is found in Article 1. It states:
A non-international armed conflict are armed conflicts which take place in the
territory of a High Contracting Party between its armed forces and dissident armed
forces or other organized armed groups which, under responsible command, exercise
such control over a part of its territory as to enable them to carry out sustained and
concerted military operations and to implement this Protocol. (Bernas, 2009)
Is Protocol II applicable to situations of internal disturbances and tensions?
No, Protocol II shall not apply to situations of internal disturbances and tensions,
such as riots, isolated and sporadic acts of violence and other acts of a similar nature,

as not being armed conflicts. (Art 1 of the Protocol II) This is true even if the armed
forces of the territory may have been called upon to suppress the disorder.

III.

JURE IMPERII AND JURE GESTIONI(ON IMMUNITY OF STATES, STATE

HEADS, AND INTERNATIONAL ORGANIZATIONS)

What is the restrictive application of State Immunity?

There is a need to distinguish the activities of states into sovereign and
governmental acts (jure imperii) and private, commercial and proprietary acts (jure
gestionis). State immunity now extends only to acts jure imperii. This application of
State immunity is now the rule in the US, UK and other states in western Europe.
The restrictive application of State immunity is proper only when the proceedings
arise out of commercial transactions of the foreign sovereign, its commercial activities or
economic affairs. It does not apply where the contract relates to the exercise of its
sovereign functions. (Ibid)
May the mere entering into a contract by a foreign State with a private party
be construed as the ultimate test of whether or not it is an act jure imperii or jure
gestionis?
The act of entering into a contract by a foreign state with a private party cannot
be construed as the ultimate test of whether or not it is an act jure imperii or jure
gestionis. Such act is only the start of the inquiry if the foreign state is engaged in the
regular conduct of a business. If the foreign state is not engaged regularly in a business
or commercial activity, the particular act or transaction must then be tested by its nature.
If the act is in pursuit of a sovereign activity, or an incident thereof, then it is an act jure
imperii. (Republic of Indonesia vs Vinzon June 26, 2003)
What are the examples of acts of foreign states that had been considered
as an act jure imperii by the Supreme Court?
a) The conduct of public bidding for the repair of a wharf at a US Naval station.
The projects are an integral part of the naval base which is devoted to the
defense of both the US and the Philippines, a function of the government of
the highest order; they are not utilized for nor dedicated to commercial or
business purposes.(USA vs Ruiz, 136 SCRA 487, 1987)
b) Entering into a Maintenance Agreement by Indonesia for specified equipment
at its Embassy like air conditioning units, generator sets, electrical facilities,
water heaters, and water motor pumps. The SC held that the establishment
of a diplomatic mission is an act jure imperii. The State may enter into
contracts with private entities to maintain the premises, furnishings and
equipment of the embassy and the living quarters of its agents and officials.
(Republic of Indonesia vs Vinzon, June 26, 2003)

IV.

PROHIBOTION ON THE USE OF FORCE AND RECOGNIZED

EXCEPTIONS TO THIS GENERAL RULE

Use of Force Short of War

What is the basic principle found in the UN Charter with respect to the
recognition of the autonomy of individual states and their right to freedom from
coercion and to the integrity of their territory?
Article 2(4) provides that, All Members shall refrain in their international relations
from the threat or use of force against the territorial integrity or political independence of
any state, or in any other manner inconsistent with the Purposes of the United Nations.
(Bernas, 2009)
This same provision is considered the legal prohibition against the use of force in
International Law. (Sarmiento, 2007).
Does Article 2(4) of the UN Charter absolutely outlaw the threat or use of force
outside the UN Charter?
There are two conflicting views on this matter:
a) The restrictive view, which is based on interpretation of the principles
underlying Article 2(4) of the UN Charter. Its proponents claim that Article 2(4) was
written with the view of abolishing war entirely.
b) the qualified prohibition view, which is based on the plain meaning of Article
2(4). Its proponents argue that Article 2(4) only prohibits certain end results, i.e. when
force is used against the territorial integrity or political independence of any state. (Ibid)
What is the nature of the prohibition of the use of force as an international law?
The prohibition is not just conventional law. It is a customary international law.
(Bernas, 2009)
Is the threat of force also prohibited by the UN Charter?
In the discussion by the ICJ in the case of the Legality of the Threat or Use of
Nuclear Weapons, it declared that, The notions of threat and use of force under
Article 2, paragraph 4 stands together in the sense that if the use of force itself in a
given case is illegal for whatever reason - the threat to use such force will likewise be
illegal (Ibid)
What are the two considered exceptions to the general prohibition of the use of
force in Art. 2, par. 4 of the UN Charter?

a) Article 51 where the Charter recognizes the inherent right of individual or

collective self-defense if an armed attack occurs;
b) Article 42, whereby the Security Council may take military enforcement
measures in conformity with Chapter VII of the Chapter. (Sarmiento, 2007)
Does the general prohibition of the use of force preclude the right to selfdefense?
Article 51 provides that the Charter shall not impair the inherent right of individual
or collective self-defense if an armed attack occurs against a Member of the UN, until
the Security Council has taken measures necessary to maintain international peace and
security.
Measures taken by Members in the exercise of this right of self-defense shall be
immediately reported to the Security Council and shall not in any way affect the
authority and responsibility of the Security Council under the present Charter to take at
any time such action as it deems necessary in order to maintain or restore international
peace and security. (Bernas, 2009)

V.

NEUTRALITY AND NEUTRALIZATION

(WHAT CAN BE ALLOWED TO BE DONE OR CONDUCTED IN NEUTRAL
TERRITORIES)

When is a state said to be neutral?

A state is neutral if it does not take part, directly or indirectly, in a war between
other states.
How does neutrality differ from neutralization?
Neutrality is dependent solely on the attitude of the neutral state, which is free to
join any of the belligerents anytime it sees fit, while neutralization is the result of a
treaty wherein the duration and the other conditions of the neutralization are agreed
upon by the neutralized state and other powers. This agreement governs the conduct
of the signatories whereas neutrality is governed by the general law of nations.
Neutrality obtains only during war while neutralization is intended to operate in time of
peace as well as in time of war. Only states may become neutral but portions of states,
like islands, rivers and canals, may be neutralized.
May there be neutrality among members of the UN?
Yes, a state can become a member of the UN and still maintain its neutrality. At
present, several neutral states, like Austria, Finland, Ireland, Sweden, and recently
Switzerland in 2002, are members of the UN. (sarmiento, 2007)

What are the rights and duties of a neutral state?

A neutral state has the right and duty to abstain from taking part in the hostilities
and from giving assistance to either belligerent; to prevent its territory and other
resources from being used in the conduct of hostilities by the belligerents, and to
acquiesce in certain restrictions and limitations that the belligerents may find necessary
to impose, especially in connection with international commerce. (Schwarzenberger,
208, cited in Cruz, 2000)
What are the obligations of belligerents?
They are bound to respect the status of the neutral state, avoiding any act that
will directly involve it in their conflict, and to submit to any lawful measures it may take to
maintain or protect its neutrality.
Is the use of neutral territory completely barred to the belligerents?
No. The passage of sick and wounded troops is allowed through a neutral state
provided personnel and materials of war are not also carried. (HC V 1907 Art. 12.)
Persons bound for enlistment in the belligerent armies may cross the neutral frontiers if
they do so individually or separately and nota s a body. (HC V 1907 Art 6) The neutral
state itself may give refuge to troops from the belligerent forces but must intern them as
far as possible, at a distance from the theater of war. (HC V 1907 Art. 11) Escaped
prisoners of war need not be detained by the neutral state but must be assigned a place
of residence if they are allowed to remain. (HC V 1907 Art 13)
Is the neutral state obliged to prevent the export from or transit through its
territory of war supplies purchased from private traders by the belligerents in the
ordinary course of commerce?
No. But it is required to take reasonable diligence in preventing the delivery of
vessels constructed and armed in its territory for use by any of the belligerents. (in
Alabama Claims Case, Great Britain was found liable in damages to the US for violation
of this duty)
Is the neutrality of one state compromised when its nationals enlist in a
belligerent army or engage in commerce with any of the belligerents?
No. The neutrality of the state is not compromised in the absence of special
rules imposing upon the neutral state the duty of intervening in the transaction. Except
for these, international law considers the relationship as strictly between the individual
and the belligerent states and whatever hardships may be suffered by its nationals as a
result thereof must, as a rule, be acquiesced in by the neutral state.
VI.

CONCEPT OF RIGHT OF ASYLUM UNDER INTERNATIONAL LAW

Is there a right of asylum under International Law?

Articles 13 and 14 of the Universal Declaration of Human Rights and the General
Assemblys 1967 Declaration on Territorial Asylum recognize the right to leave any
country, including ones own and the right to seek and to enjoy in other countrys
asylum from persecution. Those rights, however are not coupled with a corresponding
state obligation to grant asylum.
Thus, all states have the right to grant asylum, but the individual has no right to
demand asylum. (Malone, 127 cited in Sarmiento, 2007)
What is diplomatic asylum?
It is the granting of refuge by a state in its embassies, ships or aircraft in the
territory of another state. Once diplomatic asylum is granted, there is a right of safe
conduct from the foreign state. Beyond that, the rules of asylum are generally based on
treaty rather than on Customary International Law. (Malone, 128 cited in Sarmiento,
2007)

VII.

SOURCES OF INTERNATIONAL LAW

(PRIMARY AND SECONDARY, CITE EXAMPLES)

Primary and secondary sources

Primary or direct sources - treaties or conventions, customs, and the general

principles of law.
Secondary or indirect sources - the decisions of courts and the writings of
publicists.

VIII.

THE CARDINAL RULE IN INTERNATIONAL COURTS

(MAY A STATE BE COMPELLED TO SUBMIT DISPUTES TO THE
JURISDICTION OF AN INTERNATIONAL COURT?)

What is the cardinal rule in international courts?

States cannot be compelled to submit disputes to international
adjudication unless they have consented to it either before a dispute has arisen or
thereafter. States are also free to limit their acceptance to certain types of disputes and
to attach various conditions or reservations to their acceptance.
IX.

RIGHTS OF REFUGEES

Rights of Refugees

What does the term refugee mean?

The term shall apply to any person who, owing to well-founded fear of being
persecuted for reasons of race, religion, nationality, membership of a particular social
group or political opinion, is outside the country of his nationality and is unable or, owing
to such fear, is unwilling to avail himself of the protection of that country; or who, not
having a nationality and being outside the country of his former habitual residence as a
result of such events, is unable or, owing to such fear, is unwilling to return to it. (Art 1 of
the 1951 Convention relating to the Status of Refugees [Refugee Convention], which
entered into force on April 22, 1954, and as modified by the 1966 Protocol relating to the
Status of Refugees, which entered into force on October 4, 1967 as cited in Sarmiento,
2007)
What are the obligations of refugees to the country where they find themselves?
He should conform to its laws and regulations as well as to measures taken for
the maintenance of public order. (Refugee Convention, Art 2 cited in Sarmiento, 2007)
What are the rights of refugees?
Under the 1951 Refugee Convention, the contracting states shall accord to
refugees within their territories treatment at least as favorable as that accorded tot heir
nationals with respect to:
a) freedom to practise their religion and freedom as regards the religious education of
their children; (Art 4)
b) protection of industrial property, such as inventions, designs or models, trade marks,
trade names, and of rights in literary, artistic and scientific works; (Art.14)
c) access to the courts, including legal assistance and exemption from cautio judicatum
solvi; (Art 16)
d) general distribution of products in short supply; (Art 20)
e) housing; (Art 21)
f) public elementary education; (Art 22)
g) public relief and assistance; (Art 23)
h) labor legislation and social security benefits. (Art 24)
Moreover, the contracting states shall accord to refugees treatment as favorable
as possible and, in any event, not less favorable than that accorded to aliens generally
in the same circumstances, as regards:
a) the acquisition of movable and immovable property and other rights pertaining
thereto; (Art 13)

b) participation in non-political and non-profit making associations and trade unions; (Art
15)
c) the right to engage in wage-earning employment; (Art 17)
d) the right to engage on his own account in agriculture, industry, handicrafts and
commerce and to establish commercial and industrial companies; (Art 18)
e) the practice of a liberal profession; (Art 19)
f) right to choose their place of residence and to move freely within its territory. (Art 26)
Furthermore, the contracting states shall issue identity papers and travel
documents to any refugee in their territory who does not possess a valid travel
document. (Arts 27, 28) (Ibid)

X.

WHAT ARE THE PRINCIPAL THEORIES ON THE JURISDICTION OF

AUTHORITIES OF A COASTAL STATE

What are the principal theories on the jurisdiction of authorities of a coastal state
over crimes committed on board foreign merchant ships which enter or dock in
its ports? Which of the theories is followed in this jurisdiction?
a) Under the English rule, the coastal state shall have jurisdiction over all
offenses committed on board such vessels, except only where they do not
compromise the peace of the port.
b) Under the French rule, the flag state shall have jurisdiction over all offenses
committed on board such vessels, except only where they compromise the
peace of the port. (Cruz, 2000)
It is the English rule that is applicable in this jurisdiction. (People vs Wong
Cheng, GR No. L-18924, October 19, 1922)

XI.

CONCEPTS RELATED TO WAR WHAT ARE THE CONSEQUENCES OF

THE DETERMINATION/TERMINATION OF WAR

What are the effects of the outbreak of war?

1) The laws of peace cease to regulate the relations of the belligerents and are
superseded by the laws of war. Third states are governed by the laws of neutrality in
their dealings with the belligerents.
2) Diplomatic and consular relations between the belligerents are terminated and their
respective representatives are allowed to return to their own countries.

3) Treaties of political nature, such as treaties of alliance, are automatically cancelled,

but those which are precisely intended to operate during war, such as one regulating the
conduct of hostilities between the parties, are activated. Multipartite treating dealing
with technical or administrative matters, like postal conventions, are deemed merely
suspended as between the belligerents.
4) Individuals are impressed with enemy character:
a) under the nationality test, if they are nationals of the other belligerent,
wherever they may be; b) under the domiciliary test, if they are domiciled aliens
in the territory of the other belligerent, on the assumption that they contribute to
its economic resources; and c) under the activities test, if being foreigners, they
nevertheless participate in the hostilities in favor of the other belligerent.
Corporations and other juridical persons, on the other hand, are regarded as
enemies if a majority or a substantial portion of their capital stock is in the hands
of enemy nationals or if they have incorporated in the territory or under the laws
of the other belligerent.
5) Enemy public property found in the territory of the other belligerent at the outbreak of
hostilities is, with certain exceptions, subject to confiscation. Enemy private property
may be sequestered, subject to return, reimbursement or other disposition after the war
in accordance with the treaty of peace. (Ibid)

How may war be terminated?

War may be terminated by any of the following:
1) simple cessation of hostilities
Among the wars that were terminated by simple cessation of hostilities are those
between Sweden and Poland in 1716, between France and Spain in 1720, between
Spain and its American colonies in 1825, and between France and Mexico in 1862-67.
Under this method, property or territory in the possession of the respective belligerents
upon the termination of the war is retained by them in accordance with the principle of
uti possidetis. This is to be distinguished from the usual stipulation for the status
quo ante, which calls for the complete restoration to their former owners of property or
territory that may have changed hands during the hostilities, with the exception only of
prize and booty.
2) negotiated treaty of peace
At times, belligerents may be unable to effect a decisive victory against each
other and may decide finally to settle their disagreement in what is known as a
negotiated treaty of peace. One example was the case of Great Britain and the US
when they terminated the War of 1812 with the conclusion of the Treaty of Ghent.
3) defeat of one of the belligerents

The surrender of the defeated belligerent may either be conditional or

unconditional. In the former case, a treaty of peace is concluded embodying the
condition specified in the surrender; in the latter, the victorious belligerent usually issues
a unilateral declaration announcing the end of the war, to be followed with a peace
treaty dictated by it and specifying the rules on the settlement of the obligations of the
vanquished state and the disposition of its territories.

What are the consequences of war?

1) the implied judgment that the vanquished belligerent is the guilty party in the dispute
that caused the hostilities;
2) nationals of the vanquished state may be protected and punished as war criminals
and for other violations of international law who may not escape responsibility on the
ground that they were merely acting on orders of their state; here the state itself is liable
for issuing such orders and the individuals for obeying them provided a moral choice
was possible
In Yamashita vs Styer (75 Phil 563), the Commander General of the Imperial
Japanese Forces in the Philippines was convicted of war atrocities by a military
commission and sentenced to death by hanging. He questioned his trial and conviction
on the ground that the military commission had no authority or jurisdiction to try him, but
the Philippine Supreme Court and the US Supreme Court affirmed the sentence. The
latter court declared that the acts directed against the civilian population of an occupied
country and against prisoners of war are recognized in international law as violations of
the law of war. (Cruz, 2000)

XII.

BELLIGERENT OCCUPANT, USUFRUCTUARY, ADMINISTRATOR OF

PROPERTY OF THE LEGITIMATE GOVERNMENT.

When is a territory deemed occupied by a belligerent?

It is deemed occupied when it is actually placed under the authority of the hostile
army, but this occupation is limited only to the area where such authority has been
established and can be effectively exercised. It is not necessary that every square foot
of the territory in question be actually occupied, as it doubtless suffices that the
occupying army can, within a reasonable time, send detachment of troops to make its
authority felt within the occupied district. (Hyde, Vol.2, 364 cited in Cruz, 2000)
What are the consequences of belligerent occupation?
1. It does not result in transfer or suspension of the sovereignty of the legitimate
government although it may at the moment unable to exercise it.

2. The belligerent occupant cannot perform such acts as declaring the independence of
the occupied territory or requiring its inhabitants to renounce their allegiance to the
lawful government.
3. The belligerent is required to restore and ensure public order and safety while
respecting, unless absolutely prevented, the laws in force in the country more
particularly with regard to family honor and rights, the lives of persons, private property,
and religious convictions and practice. (Hague Convention No. IV, 1907, Reg., Arts 5356)
4. Whenever necessary, the belligerent occupant may promulgate new laws, nonpolitical as well as political, provided they do not contravene the generally accepted
principles of international law. Political laws are automatically abrogated upon the end
of the occupation but the non-political laws may continue even beyond the occupation
unless they are expressly repealed or modified by the legitimate government. (Hilado vs
Dela Costa, April 30, 1949)
5. The belligerent occupant is permitted to exact from the populace contributions over
and above the regular taxes for the needs of the army of occupation or for the
administration of the territory. (HC No. IV, 1907, Reg., Arts 49-51) It may also, for
valuable consideration, make requisitions of things or services for the needs of the
occupying forces. (Ibid, Art.52)
6. The belligerent occupant is permitted to introduce military currency, provided the
purpose is not to debase the countrys economy. Thus, in Haw Pia vs China Banking
Corporation (80 Phil 604), the Supreme Court upheld the validity of the payments made
by the plaintiff in Japanese military notes to settle a loan extended to her in Philippine
currency before the outbreak of the Pacific war.
7. Private property cannot be confiscated, but those susceptible of military use may be
seized, subject to restoration or compensation when peace is made. (HC No. IV, Reg.,
Arts 53-56) The property of municipalities and of institutions dedicated to religion,
charity and education, and the arts and sciences, even when state-owned, shall be
treated as private property, and their destruction is expressly forbidden. (Ibid)
8. The army of occupation can only take possession of cash, funds and realizable
securities which are strictly the property of the state, depots of arms, means of
transport, stores and supplies, and generally movable property of the state, depots of
arms, means of transport, stores and supplies, and generally movable property
belonging to the state which may be used for military operations. (Ibid) All appliances,
whether on land, at sea, or in the air, adapted for the transmission of news, or for the
transport of persons or things, exclusive of cases governed by naval law, depots of
arms and generally all kinds of ammunition of war may be seized but must be restored
and compensation fixed when peace is made.(Ibid)
9. The occupying state shall be regarded only as administrator and usufructuary of
public buildings, real estate, forests, agricultural estates belonging to the hostile state
and situated in the occupied territory. (Ibid, Art 55)

This rule was applied in Banaag vs Singson Encarnacion (April 19, 1949), where a
lease of five years granted by Philippine Executive Commission in 1942 over certain
municipal fisheries was deemed automatically canceled upon the re-establishment of
the Commonwealth government. (Ibid)

XIII.

RELATION OF ENVIRONMENTAL RIGHTS TO HUMAN RIGHTS

Are environmental concerns related to human rights issues?

Yes, they are inseparably related. In the Danube Dam Case, the ICJ held that,
The protection of the environment is a vital part of contemporary human rights
doctrine, for it is a sine qua non for numerous human rights such as the right to health,
and the right to life itself. (ICJ Rep 1997 cited in Bernas, 2009)

XIV.

INTERNATIONAL ECONOMIC LAW (SCOPE AND CHARACTERISTICS)

What are the four characteristics of IEL?

1. IEL is part of international law as treaties make this so.
2. IEL is intertwined with municipal law since the balancing of economic treaty law with
municipal law is important.
3. IEL requires multi-disciplinary thinking involving not only economics but also political
science, history, anthropology, geography, and other disciplines.
4. Empirical research is very important for understanding its operation.
What consist the expanded scope of the multilateral trade regime of the Uruguay
Round of 1994?
It now includes intellectual property, services, sanitary and physiosanitary
measures and investment, as well as the strengthening of the rules on subsidies,
countervailing duties and antidumping.
Thus, IEL has become a very specialized field and it is affecting the sovereignty
of states and their capacity to give force to national policy objectives. (Ibid)

XV.

JUS POSTLIMINIUM

What is the right of postliminy or postliminium?

It is that in which persons or things taken by the enemy are restored to the
former state on coming actually into the power of the nation to which they belong.
(Vattel in Leitensdorfer vs Webb, 1 N.M. 34, 44 cited in Cruz, 2000) In its broadened
concept, the jus postliminium also imports the reinstatement of the authority of the
displaced government once control of the enemy is lost over the territory affected.
Thus, upon the end of a belligerent occupation, the laws of the re-established
government are revived and all acts taken by the belligerent occupant which it could not
legally do under the law of nations, as well as lawful acts of a political complexion, are
invalidated.