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PUBLIC INTERNATIONAL LAW

(Notes based on the PPT lectures of Atty. John Ray Libiran, and International Law Books by Salonga &
Yap, MDS, and Bernas. Caveat: Read at your own risk!)

January 14, 2017 INTERNATIONAL LAW

INTER among

NATION States

INTERNATIONAL LAW the unique system of law which primarily governs relations among states and other
actors in the international system.

NATION vs. STATE (not the same concept)

Nation with sense of belongingness
State requires the four elements of Statehood
a. Inhabitants or people
b. Territory
c. Government
d. Sovereignty or Independence

History on how PH was created.

Q: Is international law really a law?

PROBLEM AREAS:

No international legislature/legislative body Even the resolution of the GA of UN are generally not
binding on anybody.
No true international court the ICJ can bind states only when states consent to be bound.
No international President the UNSC was intended to be that entity BUT it is often effectively
hamstrung by the veto power.
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ANS 1: [Source: Introduction to Public International Law by Bernas, S. J. (2009 Ed.)]

YES.

When speaking about international law, the general notion is that there can be no law binding sovereign states.
National policy is often preferred over international law [They say] International law is NOT a law because it is
commonly disregarded.

The reality is that States are bound by many rules NOT promulgated by them There is a general respect for law
because of the possible consequences of defiance either to oneself or to the larger society.

Theories supporting international law as a law:

Command Theory laws consists of commands originating from a sovereign and backed up by threats of
sanctions if disobeyed. (Discredited view since in reality, nations sees international law not as command but as
principles for free and orderly interaction.)

Consensual Theory IL derive its binding force from the consent of States. Treaties are the expression of
consent. Likewise, customs as voluntary adherence to common practice is seen as expression of consent. In reality,
however, there are many binding rules which do NOT derive from consent.

Natural Law Theory law is derived by reason from the nature of man. IL is said to be an application of natural
reason to the nature of the state-person, i.e. customary law and what are regarded as generally accepted principles of
law are an expression of what traditionally was called natural law.

In the ultimate analysis, however, the best answer is pragmatic. Fundamentally, there is a general respect for law and
also there is concern about the consequences of defiance either to oneself or to the larger society. International law
is law because it is seen as such by States and other subjects of international law.

ANS 2: (Source: Public International Law, 5th Ed. by Salonga & Yap)

International Law lacks the formal legal process, as in the domestic legal system, for settlement of disputes or the
enforcement of the law.

The popular view is that International Law CANNOT be regarded as real law, since it is commonly disregarded
by States UNLESS obeying it would suit their interests. But this popular misconception is belied by the practice of
States. It CANNOT be denied that International Law is constantly recognized as a law. It would be wrong to
assume that the rules of international law are more honoured in their breach that in their observance. As Dag
Hammarskjold pointed out, By and large States, like individuals, quietly obey the law in their activities because
obedience to law is a habit, from which for many reasons it is unwise to depart [Dag Hammarskjold, Liberty and
Law, in International Law in a Changing World (1963), 22, 26.]

ANS 3: (Source: International Law with Philippine Cases and Materials and ASEAN Instrument by Mirriam
Defensor Santiago, 2015 Ed.)

International law is a law in reality because it is accepted as law by states, and it is usually obeyed.

State observes IL under the CONSENSUS DOCTRINE. In a broad sense, states accept or consent to
the general system of international law, for in reality, without them, no such system could possibly operate. It is this
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approach which may be characterized as consensus of the essential framework within the demand for individual
state consent.

States consistently obey the majority of the rules within the international legal system. If international law
fails to resolve any dispute, this is no argument against its validity as a system of law. IL is different from National
law because the former (IL) depends upon the voluntary acceptance of states and other international subjects. This
voluntary character does NOT result in a disqualification from being called law. If the essence of law is obligation,
then, since it imposes obligations on states, IL is law, even if it does NOT completely conform to the configuration
of national law.

Assured enforcement is NOT a fair test of the binding quality of law. Thus, national law is law NOT
because of its capability for enforcement but because of its capability for acceptance or tolerance. International law
is law because its rules are promulgated in a manner accepted and recognized by the State as authoritative.

NOTE: INTERNATIONAL LAW is regarded as a SOFT LAW (Non-Treaty Agreement)

International Agreement not concluded as treaties and therefore NOT covered by the Vienna Convention
on the Laws of Treaties.
Most administrative procedure carried out with varying degree of CONSISTENCY and UNIFORMITY
that may eventually ripen into customary laws or become formalized later on in treaties.
Non-treaty obligation simpler and more flexible foundation for future relations among states.
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DISTINCTION BETWEEN PRIVATE INTERNATIONAL LAW and PUBLIC INTERNATTTIONAL LAW

PRIVATE
Conflict of Laws
Set of Procedural Rules that determines which
legal system and which jurisdiction apply to a
given dispute
Municipal Law
ADDITIONAL NOTE FOR DISTINCTION
Domestic law which deals with cases where
foreign law intrudes in the domestic sphere
where there are questions of the applicability of
foreign law or the role of foreign courts. (Bernas,
2009)
PUBLIC
Law of Nations
Body with Legal rule which apply between
sovereign States and such other entities as have
been granted international personality
Proper International Law
Governs the relationships between and among
states and also their relations with international
organizations and individual persons. (Bernas,
2009)

LAWS OF PEACE LAWS OF NEUTRALITY LAWS OF WAR

Governs normal relations Does not involve oneself to Governs warring states
between states conflicts or one which does not
take sides
Quiz Question: Enumeration)

SOURCES OF INTERNATIONAL LAW (Quiz Question: Enumeration)

1. Primary sources the Statute of the International Court of Justice directs the Court, in Article 38 (1), to
apply the following in deciding a case before it.
a. International convention, whether general or particular, establishing rules expressly recognized by
contesting states;
b. International custom, as evidence of a general practice accepted as law;
c. The general principles of law recognized by civilized nations;
d. Subject to the provision of Article 59, (1) judicial decisions and (2) teachings of the most
highly qualified publicist of the various nations, as subsidiary means for the determination of
rule of law. (Note: Secondary sources)

NOTE: Article 38 does NOT speak of sources. Rather, it is primarily a directive to the Court on how it should
resolve a conflict brought before it.

QUIZ QUESTION: What is the reason behind the hierarchy of sources of IL under Article 38 (1) of SICJ?
(MCQ)

My Answer: It contains secondary sources.

Answer: In International Law by MDS, Akehurst concludes: The different sources of IL are NOT arranged in a
strict hierarchical order. Supplementing each other, in practice they are often applied side by side. However, if
there is a clear conflict, treaties prevail over custom and custom prevails over general principles (intended to fill the
gap in treaty law and customary law) and the subsidiary sources. As to subsidiary sources, which prevails between a
decision and a writing would likely be resolved by the substantive merits of reasoning employed.
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Relationship between National and International Law: Two Schools of Thoughts

MONIST DUALIST
No distinction; National Law and IL are There is a distinction; Claims IL is NOT
based on one fundamental principle. This binding on states without its consent. (MDS,
principle is either the concept of right, or 2015)
social solidarity, or the rule that agreements must It believes that there is a distinction between IL
be carried out (pacta sunt servanda) (MDS, 2015) and Municipal or National law or that both are
two separate realms. (Salonga & Yap, 1992)
According to this monistic doctrine, IL is
superior to municipal law; it is international law IL can never operate as the law of the land save
which determines the jurisdictional limits of the through municipal custom, judicial decisions, or
personal and territorial competence of States legislative enactment. An enabling legislation, for
(Salonga & Yap, 1992) example is required before a treaty or its
provisions can be made operative. The rule of
international law would become by adoption
rules of municipal law. (id.)

Q: How does IL becomes part of domestic law for DUALISTS?

There are two theories to consider.

First is the Doctrine of Transformation. Since the two system is distinct and operates separately (under this view),
for IL to become part of DL/ML, it must expressly and specifically be transformed into domestic law through the
appropriate constitutional machinery, such as an act of Congress or Parliament (e.g. Philippines enacted RA 10353
in compliance with ICPAPED; RA 9262 in compliance with the CEDAW).

Second is the Doctrine of Incorporation. In the Philippines, in case of treaties as international law, they become
part of the law of the land when concurred by the Senate in accordance with Article VII, Section 21 of the 1987
Constitution which sets down the mechanism for transforming treaty into binding municipal law. With regards to
customary law and treaties which have been customary law, by saying that the Philippines adopts the generally
accepted principles of international law as part of the law of the land , the Constitution manifests its adherence to the
dualist theory and at the same time adopts the incorporation theory and thereby makes international law part of
domestic law.

DUALISTS PERSPECTIVE (Based from the book of Salonga & Yap, 1992)
INTERNATIONAL LAW (IL) MUNICIPAL LAW (ML)
Sources of IL are custom grown up among Sources of ML are customs and precedents
States and treaties concluded by them grown up with the States jurisdiction and
legislation enacted by the States lawmaking
authority.
IL regulates relations between States ML is concerned with individuals in their
relations with each other and with the State.
IL is NOT a law above, but between Sovereign ML is a law of a sovereign over individuals
States subject to its authority.

Based from Atty. Libirans Lecture

INTERNATIONAL LAW (IL) MUNICIPAL LAW (ML)

International level Domestic level
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No political superior Existence of political superior

Law between and among States
Has several sources of IL
Violations are submitted to State-to-State
transaction
Liability is state-wide
Laws of sovereign over its subjects
Mainly from enactment or by legislation
Violations are redress through local process
Liability is individual

Relation between IL and ML

MONISTIC PERSPECTIVE
According to this monistic doctrine, IL and ML, far from being essentially different, must be regarded as
part of the same juristic conception. IL is superior to municipal law; it is international law which
determines the jurisdictional limits of the personal and territorial competence of States (Salonga & Yap,
1992).
In the jurisprudence of international tribunals, the principle of the supremacy of international
obligations over national law has found repeated expressions.
Examples:
1. Advisory Opinion in the Greco-Bulgarian Communities case [P.C.I.J. Rep., Ser. B, No. 17 (1930)] the
Permanent Court of International Justice held that it is generally accepted principle of IL that in the relations
between Powers who are contracting Parties to a treaty, the provision of ML CANNOT prevail over those of the treaty.
2. Advisory Opinion (Treatment of Polish Nationals in Danzig) [P.C.I.J. Rep, Ser. A/B, No. 44] A State
CANNOT adduce against another State its own constitution in order to evade obligations incumbent
upon it under IL.
3. In a case involving Great Britain and Venezuela, the arbitration tribunal held that there could be no question
that national laws must yield to the law of nations if there was a conflict.
In International Sphere, a State is legally bound to observe its obligations under a treaty once it is duly
signed and ratified in accordance with its constitutional system. It does NOT matter that the treaty is
ineffective in the municipal sphere on account of lack of implementing legislation. The Vienna Convention
in the Law of Treaties provides that in Article 27 that a State may NOT invoke the provisions of its internal law as
justification for its failure to perform a treaty.
In the municipal sphere, the relationship between IL and ML is determined by the constitutional law of the
individual States. [Salonga & Yap, 5th Ed. (1992)]
Doctrine of Transformation requires legislative action to make the treaty enforceable in the municipal
sphere. Any international law must be transformed through legislation before the said international law
could be implemented locally.
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.
Section 2, Article II of the 1987 Constitution provides: The Philippines renounces war as an instrument of
national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the
policy of peace, equality, justice, freedom, cooperation, and amity with all nations.
In making such principles of international law part of the law of the land, no primacy is implied. Thus, a later
law would prevail over a generally accepted principle of international law insofar as the national and
domestic court is concerned.
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Under the doctrine of incorporation as applied in most countries, rule of international law are given a
standing equal, not superior to, the national legislative enactment. Hence, in accordance with the principle,
lex posterior derogate priori, a treaty may repeal a statute and a statute may repeal a treaty.
In a State where the constitution is the highest law of the land, both statute and treaties may be invalidated if
they are in conflict with the constitution.

Q: In case of conflict, which would prevail?

ANS:

Practically, all municipal tribunal concurs in the proposition that the statutes of the State should be
presumed to conform to the generally accepted principles of international law and that courts, therefore,
should NOT violate the laws of nations.
A municipal law which is in conflict with a rule of international law will often be 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 by any
means imply the primacy of IL over MLa standing equal to the national legislative enactments. (Salonga &
Yap)
Should a conflict arise between an international agreement and the Constitution, the treaty would not be
valid and operative as domestic law. The Constitution in Article VIII, Section 5, 2(a) explicitly recognizes
the power of the Supreme Court to declare a treaty unconstitutional. This does not mean, however, that a
treaty that has been declared unconstitutional loses its character as international law. Under the dualists
theory, which the Constitution accepts, the unconstitutionality of a treaty is purely domestic matter. As
Article 27 of the Vienna Convention of the Law on Treaties says, A party may NOT invoke the provision
of its internal law as justification for its failure to perform a treaty. (Bernas, 2009 Ed.)

BASIS: Section 5, Article VIII of the 1987 Constitution.

Power of Judicial Review over all cases in which the constitutionality or validity of any treaty,
international or executive agreement
But in international sphere, IL is favoured over ML (as earlier discussed).

Constitution vs. Treaty

Treaty a contract in writing between two or more political authorities (as states or sovereigns) formally
signed by representatives duly authorized and usually ratified by the lawmaking authority of the state.

Q: In case of conflict, which prevails?

ANS: (It seems Municipal Law is the answer based on the Municipal law principle).

Power of Judicial review over all cases in which the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in
question. [Section 5, Article VIII]

NOTE: (However)
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Municipal Law in International law

According to international law principles, int. law should have supremacy over national laws. This was clearly
manifested by Treaty Provisions:

Article (13) of the 1949 Draft Declaration on Rights and Duties of States (ILC, 1949) provides that:
Each State has the duty to carry out in good faith its obligations arising from treaties and other sources of
international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform
this duty.

Article (27) of the Vienna Convention on the Law of Treaties (1969) provides that:
A party may not invoke the provisions of internal law as justification for its failure to perform a treaty

Article (46) of the Vienna Convention on the Law of Treaties (1969) provides that:
A State, in regard of invoking its competence to conclude treaties, may not
invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provisions of its
internal law .-in order to - invalidate its consent , unless that violation was manifest and concerned a rule of its
internal law of fundamental importance.

January 17, 2017 General Principles

Why is IL recognized and obeyed as law?

The three theories to consider are:

1. Law of Nature
2. Positivist Theory
3. Eclectic Theory

LAW OF NATURE
Law are created by God
It must absolutely be maintained that the obligation of the natural law is from God himself, the creator and
supreme governor of the human race, who by virtue of his sovereignty over men, his creature, has bound
them to its observance. He formed the nature of things and of man in such a way that the latter cannot be
preserved without a social life. Proposed by Samuel Pufendorf, On the Law of Nature and of
Nations. (He gave natural law a theological foundation and applied it to government and international law)

(Personal note: Its like saying close to a moralistic system suggesting absolute value of obedience and observance as
a natural way of being man of God.)

Social Contract Theory

o According to John Locke, man is inherently good.
The ability to extend my hand and know where it will hit.
o Agreement to be bound by authority to restrict or limit freedom in exchange for protection.
o Nature of Man Law of Nature Social Contract
Natural and Universal principle of right and wrong, independent of any mutual intercourse or compact.
Every individual can act within reason and with conscience.
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International law is a law above states

Law need NOT be enacted, but merely discovered. Law is a product of reason. (Personal Note: Close to
Thomas Hobbess naturalist view that men are rational and social beings).

POSITIVIST THEORY
Laws are created by men.
IL becomes binding because of the consent of sovereign states.
Consent is express in case of conventional law, implied in case of customary law, and presumed in case of
general principles of law.
IL is the law of coordination. (Proposed by Richard Zouche)

ECLECTICS or GROTIANS
Compromise position
IL is binding because of the law of nature and consent of states
It is based on right reason and practice of states (Proposed by Hugo Groitus)

NOTE: Law of Nature (Quiz Question: Choices did NOT include Thomas Hobbes, but included John
Locke and Groitus, Groitus adopted both law of nature (not man) and consent of State. Groitus was the
answer in the MCQ question)

As used by Thomas Hobbes in his treatises Leviathan and De Cive, natural law is "a precept, or general rule, found
out by reason, by which a man is forbidden to do that which is destructive of his life, or takes away the means of
preserving the same; and to omit that by which he thinks it may best be preserved."

(Personal Note: combination of the naturalist positivist theory. PIL is accepted as a good law based on rationality
and through the states consent.)
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SANCTIONS IN INTERNATIONAL LAW

1. General Welfare of the society of nations.
a. Example: US vs. USSR on Mutual Assistance Destruction
b. NOTE: Watch Stanislov Petrov (2014)
2. Normal habits of obedience ingrained in the nature of man as a social being. (Personal note: Watch Most
humans are sheep study on Youtube.com)
3. Respect for world opinion and the desire to project an agreeable public image.
4. Constant and reasonable fear of retaliation from other states.
5. Coercive machinery of the United Nations.
a. Example: East Timor vs. Indonesia, Timor Leste

ENFORCEMENT OF INTERNATIONAL LAW

1. Through international organization or regional groups
2. Inter-State
a. Diplomatic relations
b. Retorsion and reprisal
c. War
3. Intra-state through municipal law
a. Rome State: creating the ICC
b. RA 9851: Act defining and penalizing crimes against IHL

FUNCTIONS OF INTERNATIONAL LAW

1. Promote international peace and security.
2. Foster friendly relations among nations and to discourage the use of force in the solution of differences
among them.
3. Provide for orderly regulations of the conduct of states in their mutual dealings.
4. Ensure international cooperation in the pursuit of certain common purpose of an economic, social, cultural
or humanitarian character.

January 21, 2017 Sources of International Law

SOURCE DU DROIT
(Where law came from vs. Criteria under which a rule is accepted as valid in the given legal system at issue)

Statute of the International Court of Justice directs the Court, in Article 38 (1), to apply the following in deciding a
case before it.

1. The Court whose function is to decide in accordance with international law such dispute as submitted to it
shall apply:
a. International convention, whether general or particular, establishing rules expressly recognized by
contesting states;
b. International custom, as evidence of a general practice accepted as law;
c. The general principles of law recognized by civilized nations;
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d. Subject to the provision of Article 59, (1) judicial decisions and (2) teachings of the most
highly qualified publicist of the various nations, as subsidiary means for the determination of
rule of law.

NOTE: Article 38 does NOT speak of sources. Rather, it is primarily a directive to the Court on how it should
resolve a conflict brought before it.

DEFINITION OF TREATY
Treaty is defined as a contract in writing between two or more political authorities (as states or
sovereign) formally signed by representative duly authorized and usually ratified by the lawmaking
authority of the state. (Atty. Libirans lecture)
The 1969 Vienna Convention on the Law on Treaties defines a treaty as an international agreement
concluded between States in written form and governed by international law, whether embodied in
a single instrument or in two or more related instruments and whatever its particular designation.
(Bernas, 2009 Ed.)

REQUISITES BEFORE A TREATY CAN BE CONSIDERED A SOURCE OF INTERNATIONAL LAW

1. Must be signed by a considerable number of states
2. Must be of the same nature, and contain practically uniform provisions
3. Intend to lay down rules for observance by all.
Example: ICRC, United Nations

NOTE: Bilateral Treaties (Those between two states particular international law

ESSENTIAL CONDITION FOR THE VALIDITY OF A TREATY (Quiz Question: Enumeration)

1. Capacity of the parties
2. Competence of the particular organs concluding the treaty
3. Reality of consent
4. Legality of the object of the treaty.

NOTE: Doctrine of consideration, which plays an important role in law of contracts, has no application to treaties.
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INTERNATIONAL CUSTOMARY LAW/ CUSTOMARY INTERNATIONAL LAW

CUSTOM USAGE
Practice has grown up between states and has come to Not as obligatory and right as custom (Conviction to
be accepted as binding by mere fact of persistent usage bind other states)
over a long period of time
Example: State Immunity, State Responsibility Example: Use of French or English Rule as language of
diplomacy
NOTE: See Objective and Subjective element for the application of ICL.

Problem areas:

1. Proof
2. Inflexibility

CASE: The Lotus Case (France v. Turkey, ICJ 1927)

ISSUE: WON Turkey has jurisdiction to try the French officer or not.

RULING: YES. Turkey may also prosecute

1. Although there were a few cases in which states in Turkeys position had instituted prosecution, the other
states concerned had NOT protested.
2. Although most states in Turkeys position had refrained from instituting prosecutions, there was no
evidence that they have done so out of a sense of legal obligation.

THE LOTUS CASE (FRANCE vs. TURKEY)

Permanent Court of International Justice (1927)

FACTS: A collision occurred on the high seas between a French vessel Lotus and a Turkish vessel Boz-
Kourt. The Boz-Kourt sank and killed eight Turkish nationals on board the Turkish vessel. The 10 survivors of the
Boz-Kourt (including its captain) were taken to Turkey on board the Lotus. In Turkey, the officer on watch of the
Lotus (Demons), and the captain of the Turkish ship were charged with manslaughter. Demons, a French national,
were sentenced to 80 days of imprisonment and a fine. The French government protested, demanding the release of
Demons or the transfer of his case to the French Courts. Turkey and France agreed to refer this dispute on the
jurisdiction to the Permanent Court of International Justice (PCIJ).

ISSUE: Whether or not Turkey violated international law when Turkish courts exercised jurisdiction over a crime
committed by a French national, outside Turkey?

RULING: A rule of international law, which prohibits a state from exercising criminal jurisdiction over a foreign
national who commits acts outside of the states national jurisdiction, does not exist. Turkey, by instituting criminal
proceedings against Demons, did not violate international law. First, a State cannot exercise its
jurisdiction outside its territory unless an international treaty or customary law permits it to do so. This is
what we called the first Lotus Principle. Second, within its territory, a State may exercise its jurisdiction, on any
matter, even if there is no specific rule of international law permitting it to do so. In these instances, States have a
wide measure of discretion, which is only limited by the prohibitive rules of international law. This applied to civil
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and criminal cases. If the existence of a specific rule was a pre-requisite to exercise jurisdiction, PCIJ argued, then it
wouldin many cases result in paralyzing the action of the courts, owing to the impossibility of citing a universally accepted rule on
which to support the exercise of their [States] jurisdiction. The PCIJ held that a ship in the high seas is assimilated to
the territory of the flag State. This State may exercise its jurisdiction over the ship, in the same way as it exercises
its jurisdiction over its land, to the exclusion of all other States. In this case, the Court equated the Turkish
vessel to Turkish territory. In this case, the PCIJ held that the offence produced its effects on the Turkish
vessel and consequently in a place assimilated to Turkish territory in which the application of Turkish
criminal law cannot be challenged, even in regard to offences committed there by foreigners. Turkey had
jurisdiction over this case.

NICARAGUA vs. US
1986 ICJ 1 (27 June 1986)

Q: How is customary law determined?

ANS:

1. General practice or material factor

a. Non-intervention is found in Charter of the Organization of American States
2. Accepted as Law or Subject Factor
a. Assent to the Declaration on Principles of International Law concerning friendly relations and
Cooperation among States in accordance with the Charter of the United Nations.

FACTS: There were series of rebellion that happened in Nicaragua and there were allegations that the United States
was supporting these rebels through financing, equipping and training these rebels. The Nicaraguan government
demanded the United States to cease such operations and to pay damages. The United States was contending that
such intervention was valid based on a multilateral treaty reservation of the United States, the
Vandenberg reservation, such that the intervention was valid and was based on international customary law.

ISSUE: Whether or not the intervention of the United States was valid?

RULING: The court held that the principles of non-use of force, non-intervention, respect for the independence
and territorial integrity of States, right of collective self-defense and the freedom of navigation; continue to be
binding as part of customary international law, despite the operation of provisions of conventional law in which
they have been incorporated. In this case, there was no basis of the intervention of the United States. The act of
United States was invalid as it is in contrary with international customary law.

OPINION JURIS (Quiz Question: Definition)

A sense on behalf of a state that is bound to the law in question.
Conviction felt by states that certain form of conduct is required by international law.

GENERAL PRINCIPLES OF LAW

The general principles of law recognized by peace-loving nations
Those which, because they are good and just, have been accepted and are being observed by the majority of
civilized states.
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Based on reason and conscience.

Example: Prescription, estoppel, pacta sunt servanda, good faith.

DECISIONS OF COURT
No distinction whether international or local court as long as they establish rules of international law

NOTE!!! Doctrine of Stare Decisis is NOT applicable in international law.

See Article 59, SICJ: Decisions of the ICJ have binding force only between the parties in respect to particular cases.
[in relation to Article 38 (1)(d), SICJ]

Examples: Nuremberg Trial, ICTY, ICTR, Yamashita (Source of Yamashita Standards)

WRITINGS OF HIGHLY QUALIFIED PUBLICISTS

Requisites:

1. Publicist must be highly qualified

2. Writing must be fair and unbiased representation of international law
Examples: Writings of Ian Brownlie, Publications from International Organizations

OTHER SOURCES
1. Acts of international organizations
2. Soft law, such as Declarations and Conferences
3. Equity, Justice and Natural law

JUS COGENS
Compelling law a.k.a. peremptory norms
o Elements of Peremptory norm (Article 53 of the Vienna Convention of the Laws of Treaties:
1. Peremptory norm of general international law
2. Accepted and recognized by the International community
3. No derogation therefrom
4. Modified only by a subsequent norm of general international law having the same
character. (Petralba, Hornbook on International and Philippine Human Rights Law, 2013
Ed.)
Technical terms given to those norms of general international law that are argued as hierarchically superior.
These are, in fact, a set of rules, which are peremptory in nature and from which no derogation is allowed
under any circumstances.
This group of fundamental norms is superior to other sources of international law and need NOT be agreed
upon by the State in a treaty to form part of the jurisprudence. They are deemed inderogable, as well.
(Petralba, Hornbook on International and Philippine Human Rights Law, 2013 Ed.)
Likened to a Constitution where all treaties, agreements, or application of international law must conform
to.
Example: prohibition on the use of force; the law on genocide; principle of racial non-discrimination; crime
against humanity; and the rules prohibiting trade in slave or human trafficking.
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ERGA OMNES (Quiz Question: Define)

Towards everyone
Obligatio erga omnes are obligations that are owed by the States to all, regardless of the presence or absence
of their assent to be bound thereby. (Petralba, Hornbook on International and Philippine Human Rights
Law, 2013 Ed.)
Violations of certain international laws are NOT only an offense against a state directly affected by the
breach, but also against all members of the international community.
Example:
o Piracy (take the case of People v. Lol-lo and Saraw); and
It is a robbery or forcible depravation on the high seas, without lawful authority and done
with animus furandi and in the spirit and intention of universal hostility. Piracy is a crime
against mankind.
o Genocide (Prosecutor v. Akeyasu; Prosecutor v. Rutaganda)

January 31, 2017 Concept of a State

The State
Principal Subject of International Law: State

Definition:

A group of people, more or less numerous, permanently living in a definite territory, under an independent
government organized for political ends and capable of entering into legal relations with other states.
Basic unit of the international community
International person
Has rights and obligations under international law

Concept of a State
The Montavideo Convention on the Rights and Duties of States (IMPORTANT!)
o Agreement signed at Montevideo, Uruguay on December 26, 1933 (and entered into force the
following year)
o It established a standard definition of a state under international law. It stipulated that all states were
equal sovereign units consisting of a:
Permanent population;
Defined territorial boundaries;
A government; and
An ability to enter into agreements.
o Among the conventions provisions were that signatories would not intervene in the domestic or
foreign affairs of another state, that they would NOT recognize territorial gains made by force, and
that all disputes should be settled peacefully.
o The agreement was signed by the US, Argentina, Brazil, Chile, Columbia, the Dominican Republic,
Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicagarua, Panama, Paraguay, Peru,
Uruguay, and Venezuela. Bolivia was the only country attending the conference that refused to sign
the agreement.
 Page 16 of 61

In the case of North Cotabato vs. GRP Peace Panel, the concept was used to justify the establishement of
an independent Bangsamoro. It argued, Indeed, BJE is a state in all but name as it meets the criteria of a
state laid down in the Montevideo Convention, namely, a permanent population, a defined territory, a
government, and a capacity to enter into relations with other states.

NOTE: Republic of the Philippines State-owned; name of agency government owned.

DISTINCTION: STATE v. NATION

STATE NATION
Juridical/juristic concept/legal concept Ethnic or racial concept (Non-legal concept)

A group of people, living together in a fixed territory,
organized for political ends under independent
Government, and capable of entering into international
relations with other States. [Salonga & Yap, 5th Ed.
(1992)]
STATE
Includes government as element
A nation is said to exist when a group of people are
aware of, and feel bound by, common racial, or ethnic
ties. [Salonga & Yap, 5th Ed. (1992)]
GOVERNMENT
Instrumentality though which the will of the state is
exercised

Q: How states are created?

ANS: (RUSIA-A)

1. Revolution refers to a movement, often violent to overthrow an old regime and effect a complete
change in the fundamental institution of society.
a. EXAMPLE:
i. American Revolution
ii. EDSA Revolution (Why are we still called Philippines?)
2. Unification (e.g. Germany)
3. Secession act of separating from a nation or state and become independent (e.g. Timor-Leste
4. Assertion of Independence (e.g. former Yugoslavia, Kosovo)
5. Agreement (e.g. Netherlands)
6. Attainment of Civilization process by which society or place reach an advance stage of social
civilization.

Element of a State:

1. People
2. Territory
3. Government
4. Sovereignty (according to the PPT. But in our discussion, we apply the Montevideo Convention definition)

PEOPLE
More or less numerous for defense.
Both sexes for perpetuity.
 Page 17 of 61

o EXAMPLE: Japan, Vatican

TERRITORY
An area over which territory has effective control.
Fixed portion of the surface of the earth in which the people of the state reside
Must be sufficient to provide the needs of the inhabitants
Big enough to be self-sufficient and small enough to be easily administered and defended

GOVERNMENT
Agency or instrumentality, through which the will of the state is formulated, expressed, and realized.
Inhabitants must have an organized government exercising control over, and capable of maintaining law and
other within, the territory. [Salonga & Yap, 5th Ed. (1992)]
Functions of the Government:
o Constituent exercise of sovereignty; compulsory
o Ministrant exercise of proprietary functions; optional
Added notes discussed in the book Recognition of government:
o 1. Must be effective and stable (means must be in possession of the machinery of state and without
substantial resistance to its authority).
o 2. Must show willingness and ability to discharge international obligations.
o 3. In the former years, a third requirement was laid down government should enjoy popular
consent or approval of the people. This is also known as the Tobar and Wilson Doctrine. This
precludes recognition to any government coming into existence by revolutionary means so long as
the freely elected representatives of the people thereof have not constitutionally reorganized the
country. (e.g. EDSA Revolution)
o Estrada Doctrine It presupposes that there is the presence of a political upheaval in the
country. In the course of political upheaval, to deal or not to deal with the government or anyone
who has control of the state cannot be construed or be taken as an implied recognition of that
government. Since the non-recognition of a foreign government has often been construed as mark
of disapproval and recognition, as a sign of approval, some States have adopted a policy of never
issuing any declaration giving recognition to governments and of accepting whatever the
government is in effective control without raising the issue of recognition. This policy originated in
Mexico in 1930 and was enunciated by its Foreign Minister Estrada. (Salonga & Yap)

CAPACITY TO ENTER INTO RELATIONS WITH OTHER STATES

An entity is NOT a state UNLESS it has competence, within its own constitutional system, to conduct
international relations with other states, as well as the political, technical, and financial capabilities to do so.
The only aspect of freedom that is material is the capacity of a State to deal with other States (foreign
affairs) free from external restraint.

Soverignty (included and discussed in The State: Reduced Size PPT)

The supreme and uncontrollable power inherent in a state by which that state is governed.

Internal External
Power of the state over its people Relationship of a state with other states
 Page 18 of 61

January 25, 2017 SUBJECTS OF INTERNATIONAL LAW

The International Community

Body of juridical entities which are governed by the law of nations.

SUBJECT v. OBJECT of INTERNATIONAL LAW

SUBJECT
o An entity that has rights and responsibilities under that law.
o It has an international personality and can assert rights and be the obligations assumed by the
subject. Not directly governed by the rules of international law.
OBJECT
o Person or thing in respect of which rights are held and obligations assumed by the subject. Not
directly governed by the rule of international law.
o Rights are received and responsibilities imposed through the instrumentality of an intermediate
agency.

Subjects

Non-state
State
Actors

International Multinational
Individuals
Organizations Companies

INTERNATIONAL PERSONALITY

International Personality
Absoulute Functional Limited
e.g. States e.g. e.g. Individuals
International and
Organizations corporations

QUIZ QUESTION: What are the kinds of State?

 Page 19 of 61

Independent
With full international
personality

Dependent
Do not have full control of
their external relations

ASPECTS OF GOVERNANCE

Internal
Affairs

State
External
Affairs

CLASSES OF STATES
INDEPENDENT STATES

1. Simple States under a single and centralized government that takes care of its internal as well as external
affairs
2. Composite States Consists of two or more states, each with its own separate government but bound by a
central authority which manages the external affairs.
a. Federation 2 or more states unite to abandon their individual statehood. The federal government
takes care of foreign affairs while member states take care of their internal affairs (e.g. USA)
b. Confederation two or more states unite but do NOT abandon their individual statehood
c. Personal Union Where two or more states decide to have a common head of state while retaining
their individual distinct international personality
d. Real Union two or more states share one or more state organs (e.g. Egypt and Syria)
e. Incorporate Union Union of two or more states under a central authority empowered to
administer both its internal and external affairs and possessed with separate international personality.
The union itself has no international personality (e.g. UK)

DEPENDENT STATES

States subject to the authority of one or more other states (in the conduct of external affairs). [Salonga &
Yap, 5th Ed. (1992)]

Kinds:
 Page 20 of 61

1. Colonies Internal and external affairs are controlled by colonial power.

2. Protectorates and suzerainties internal affairs are controlled by local leaders but external affairs are
administered by protecting power usually through a treaty or agreement. For academic discussion only as
there are no more protectorates or suzerainties. This is also considered as International guardship.
a. We speak of suzerainty where, as in a feudal system, there is a vassal. The vassal State, under
international guardianship, may be absolutely or mainly represented internationally by the suzerain
State. To the extent that vassal State is allowed to retain a degree of control over the management of
its foreign relations.
b. A protectorate as distinguished from suzerainty always retains, for some purpose, a position of its
own within the international community, and for that reason is always consideredto certain
degreean international person and a subject of international law.

NOTE: Atty. Libiran found some which still exist, if I recall correctly.

NEUTRALIZED STATES

A state which, in return for a permanent guarantee of its territorial integrity by third powers, is obligated to
maintain permanent neutrality, EXCEPT for situations for its own defense. (e.g. Switzerland)
Whether simple or composite, a State is said to be personalized where its independence and integrity are
guaranteed by an international treaty on the condition that such State obligates itself never to take up arms
against any other State, except for self-defense, or to enter into such international obligations as would
indirectly involve it in war. [Salonga & Yap, 5th Ed. (1992)]
Differentiate with neutrality Does not involve oneself to conflicts or one which does not take sides

INSURGENTS, BELLIGERENTS, and NATIONAL LIBERATION MOVEMENTS

Requirement for them to be granted limited international personality:

o They must exercise de facto control over substantial part of national territory.
Insurgents rebels who occupy a substantial portion of the territory, and are well organized under some
form of civil government.
Belligerents if with the above description, the hostilities assume widespread proportions.
Certain conditions before the right of belligerency is accorded:
1. An organized civil government that has control and direction over the armed struggle launched by the
rebels;
2. Occupation of a substantial portion of the national territory;
3. Seriousness of the struggle, which must be so widespread thereby leaving no doubt as to the outcome;
4. Willingness on the part of the rebels to observe the rules and custom of war.

The recognition of belligerency may be accorded, expressly or impliedly, by the parent State (e.i. proclamation by
the parent State of a blockade of the portion held by the rebels is implied recognition) or by third States
(proclamation of neutrality by third States). It is very rare for government to explicitly extend recognition to rebels.

INTERNATIONAL ORGANIZATIONS
May be granted international personality if:
1. Their purposes are mainly non-political.
2. They are autonomous.
 Page 21 of 61

e.g. ILO, FAO, WHO, IMF

INDIVIDUALS
1. UN Charter Dignity and worth of the human person
2. UDHR inherent dignity and equal and inalienable rights of all members of the human family
3. Treaties authorizing persons to bring suits before internationall tribunals
4. Rules against Pirates hostes humani generis

February 1, 2017 Territory

Definition
Fixed portion of the surface of the earth inhabited by the people of the state.
Area over which a state has effective control
o Right to acquire territories is one of the fundamental attributes of a state, but subject to the generally
accepted principles of international law

Components of Territory
1. Terrestrial Domain
2. Maritime and Fluvial Domain
3. Aerial Domain

Meets and bound: Two Schools of Thoughts

Must be permanent and
indicated with precision
because they generally
define jurisdiction of states.

Must NOT be certain but

definitive core must be
identified.

Other school of thought: Sovereignty must be exercised.

The case of Principality of Sealand a micronation

September 2, 1967 Sealand declared independent.

MODE OF ACQUIRING TERRITORY

Discovery and Occupation

Acquisition of territory which is terra nullius (land belonging to no one).
a. Philippines NOT terra nullius because we were not really uninhabited, but our territory was
already occupied by people whose civilization falls below the European standard. Cannot be claimed
 Page 22 of 61

as terra nullius open to colonization by states. Islands occupied by native tribes were acquired by
agreement, not discovery, because they are NOT terra nullius.
b. Western Sahara Case (ICJ Rep. (1975) 12. An advisory opinion on the case where ICJ rejected
the claim of Spain over Western Sahara based on alleged discovery, since at that time the territory
was already occupied by nomadic tribes with ties to Morocco and Mauritania.
c. Requisites:
i. Possession claimed on behalf of the State represented by the discoverer and may be
effected through a formal proclamation and the symbolic act of raising the national flag in
the territory.
ii. Administration Inchoate title of discovery will bar other states from entering the territory
until the lapse of a reasonable period within which the discovering state may establish a
settlement thereon and commence to administer it. As soon as sovereign rights are exercised,
inchoate title ripens into a full title.

THE ISLAND OF PALMAS CASE (US v. Netherlands)

Decision: (based on the PPT) (EXAM QUESTION: Midterms)
o Title based on Contiguity has NO STANDING in INTERNATIONAL LAW (sit down lang
hehe)
o Title by discovery is only an inchoate title.
o If another sovereign begins to exercise continuous and actual sovereign, (and the arbitrator required
that the claim had to be open and public and with good title), and the discoverer does NOT contest
this claim, the claim by the sovereign that exercise authority is greater than a title based on mere
discovery. In other words, there is a need to administer it.
Discovery alone of a territory which is terra nullius gives only an inchoate title, and must be followed
within a reasonable time by effective occupation. [Salonga & Yap, 5th Ed. (1992)]
Arbitrator Max Huber sustained the territorial claim of the Netherlands (held that Netherlands held actual
title to Palmas; it is now a part of Indonesia). US claimed title on the discovery of the Island by Spain (from
whom US derived its title) in the sixteenth century. Arbitrator held that even if the international law of that
century recognized mere discoveryas sufficient to confer title, such a title could not survive today, since
discovery alone without any subsequent act does not establish sovereignty; and although the title originally
acquired was inchoate, it was NOT turned into a real title by an actual and durable taking of possession
within a reasonable time and could not therefore prevail over the continuous and peaceful display of
authority over the islands by Holland. Discovery alone of a territory which is terra nullius gives only an
inchoate title, and must be followed within a reasonable time by effective occupation. [Salonga & Yap, 5th
Ed. (1992)]

THE PASSION ISLAND CASE (Clipperton Island)

Clipperton uninhabited 9 sq. km coral atoll in the eastern Pacific Ocean, southwest of Mexico and west of
Costa Rica
French discoverers Martin de Chassiron and Michel Du Bocage, commanding the Frenh ships La Princesse
and La Dcouverte discovered the island in 1711; they drew up the first map of the island and annexed it to
France.
Mexico reassered its claim over Clipperton Island late in the 19th Century, and on December 13, 1897, it sent
the gunboat La Democrata to occupy and annex it. A colony was established, and a series of military
 Page 23 of 61

governors were posted to Clipperton, and a lengthy diplomatic correspondence between the two nations led
to the conclusion of a treaty on March 2, 1909, to seek the arbitration of King Victor Emmanuel III of Italy,
with each nation promising to abide by that monarchs final determination. His decision would not be
rendered until 1931.
On January 28, 1931 King Victor Emmanuel declared Clipperton to be of French possession. They
annexed it to France.
If a territory, by virtue of the fact that it was completely uninhabited, is, from the first moment when the
occupying state makes appearance there, at the absolute and undisputable possession of that state, from that
moment the taking of possession is considered accomplished and the occupation is formally completed.
(EXAM QUESTION: Midterms)

PRESCRIPTION
Long, continued, and adverse possession to vest acquisitive title in the claimant.
No fixed period of possession yet in IL
Las Palmas case: even if Spain discovered and occupied the territory, the Netherlands acquires the same by
virtue of prescription as it exercised sovereign rights over the islands for more than two hundred years after
its discovery by Spain. (PPT)
Hugo Grotius adopted the concept of prescription that the territory may be acquired through uninterrupted
and uncontested possession going beyond memory.
The acquisition of territory by an adverse holding continued through a long term of years. It requires two
essential facts: (a) continuous; and (b) undisturbed possession.

CESSION
Transfer of territory from one state to another by agreement. (PPT)
Transfer of title is effected upon the meeting of the minds of the parties and does NOT have to involve
actual delivery of the ceded territory to the acquiring state. (PPT)
A bilateral agreement whereby one State transfers sovereignty over a definite portion of territory to another
State. [Salonga & Yap, 5th Ed. (1992)]
It may be (a) voluntary or (b) forced cession.
It may be a portion of the territory, or the entirely of its domain. The agreement is usually embodied in a
treaty between the ceding State and the acquiring State who absorbs the territory. [Salonga & Yap, 5th Ed.
(1992)]

SUBJUGATION/CONQUEST
Formal annexation of a territory after it has been conquered or occupied in the course of war.
Conquest acquisition of territory by force of arms.

ACCRETION
Accomplished through both natural and artificial processes, as by the gradual and imperceptible deposite of
soil on the coasts of the country through the action of water or more effectively, by reclamation projects.
(PPT)
 Page 24 of 61

Increase in the land area of a State caused by the operation of the forces of nature or, artificially, through
human labor. [Salonga & Yap, 5th Ed. (1992)]
Doctrine of accessio cedat principali (Accessory follows the principal).

February 4, 2017

The Spratly Islands and the Scarborough Shoal (Kalayaan Group of Islands)
Discovered by Tomas Cloma

Q: What are we claiming?

1. Territory
2. Sovereignty
3. Both

PH claimed 60, Occupied 8, facility=1300m runway

China claimed=All, occupied=7, facility=military facility

The Philippines is outnumbered and outpowered (as shown in the pictures).

Resources:

Marine Resources
Gas and Oil
Archipelagic Sea Lane

Q: Why the Philippines?

ANS: Control over the Pacific equates to power.

HISTORY OF THE DISCOVERY OF KIGS

1947 Tomas Cloma discovered KIGS

1956 Cloma issued a proclamation to the whole world asserting ownership by discovery and occupation of 33
islands of the Spratlys. PROC and Vietnam immediately opposed.

NOTE: Did not annexed it to the Philippines.

1971 PH sent a diplomatic note to Taipei demanding the removal of their garrison at Itu Aba

1974 Cloma executed a Deed of Assignment and Waiver of Rights in favour of the Republic of the Philippines.

1978 PD 1596 declaring most of the islands as PH territory and annexing them to Palawan province as
Kalayaan Island Group (KIG).

1979 Philippines release a map enclosing KIGs within the archipelago.

American counsel defended Philippines in PCA.

 Page 25 of 61

Contiguity and propinquity (weak argument because of the HINTERLAND THEORY wherein a state
is considered an island or group of island as its natural Hinterlands must be preferred as between
claimant whose claims are uncertain
o NOTE: This was discussed in Haydee Yoracs article during NatRes with Atty. Andrada
Abandonment and Occupation Japan renounced the islands in the Treaty of Peace with all their allies
and their Bilateral Treaty of Peace with China (However, the treaty did NOT mention any beneficiary, this
converted the island groups into terra nullius. Japan owned it by subjugation. But in 1952, it became terra
nullius (means nobody's land, which is used in international law to describe territory which has never
been subject to the sovereignty of any state, or over which any prior sovereign has expressly or implicitly
relinquished.)
PCA UNCLOS Arbitration. No ruling since no territory but only rocks (LTEs)
Remedy: ITLOS to settle.

February 7, 2017

JURISDICTION
Power to hear and decide cases.
Presupposes the different powers of the departments of the government
o Jurisdiction to legislate
o Jurisdiction to try
o Jurisdiction to enforce
In IL, Jurisdiction is different.

PERSONAL JURISDICTION

BASES OF JURISDICTION (Salonga & Yap)

Jurisdiction has been claimed by States based on the following principles:
1. Territorial Principle
2. Nationality Principle
3. Protective Principle
4. Universality Principle generally forbidden in international law, except with respect to crimes which
threaten the international community as a whole and which are considered criminal offenses in all
countries, such as war crimes, genocide, piracy, slavery, hijacking, terrorism, and the like.

NOTE: Possible question on enumeration.

NATIONALITY PRINCIPLE
A state may prosecute its nationals for crimes committed anywhere in the world.
Under this principle, a State may punish offenses committed by its nationals anywhere in the world.
Doctrine of Indelible Allegiance an individual may be compelled to retain his original nationality
notwithstanding that he has already renounced or forfeited it under the laws of the second state whose
nationality he has acquired.

Some manifestation of personal jurisdiction

 Page 26 of 61

Art. 15 of the NCC: Laws relating to family rights and duties or to the status, condition and legal capacity of persons are
binding upon citizens of the Philippines, even though living abroad.
Art. 16 of the NCC: REAL PROPERTY as well as PERSONAL PROPERTY is subject to the law of the country where
it is situated.
Income Tax laws under the National Internal Revenue Code (NICR) income within and outside the
country may be taxed (e.g. Pacquiaos Fight money).

JURISDICTION OVER FOREIGNERS ABROAD

PROTECTIVE PRINCIPLE UNIVERSALITY PRINCIPLE

Allows a state to punish acts committed abroad which
are prejudicial to their national security or vital interests,
even where the offenses are perpetrated by non-
nationals/foreigners abroad. (e.g. Article 2 of RPC)
Extraterritorial criminal jurisdiction
Allows state to exercise universal jurisdiction over
certain acts which threatens international community as
a whole and which are criminal in all countries.
Extraterritorial jurisdiction is also claimed by the States
over all crimes regardless of where they are committed
or who committed them, whether nationals or non-
nationals. This is generally considered forbidden in
international law, except with respect to crimes which
threatens the international community as a whole and
which are considered offenses in all countries, such as
war crimes, genocide, piracy, slavery, hijacking, terrorism
and the like.

The Case of Edward Snowden

Extradition individuals are extradited (handed over) by one state to another state in order that they may
be tried in the latter state for offenses against its laws.
Also includes the surrender of convicted criminals who have escaped before completing their punishment.
Without a treaty, there is NO DUTY to extradite; but there is also no law that prohibits extradition if a state
wants to do so.
Asylum ends where extradition begins.
Additional Information on Extradition:
o Surrendering custody of a fugitive by one state to another where he is wanted for prosecution,
or if already convicted for or tried for punishment.
o This is based on a treaty (bilateral or multilateral) between states, for without such, extradition
cannot be demanded, as it is not a matter of right, as it is a privilege given to state parties to the
agreement.
o Sue generisa class of its own. ORDINARILY, the right to criminal due process and the right to
bail do not apply. (Case of Gov. of HK vs. Olalia) where the right to criminal due process and
right to bail was made available even in an Extradition case because of recognition of
human rights, overriding USA v. Purganan case.
Extradition by the government.
GENERAL RULE: No extradition if no duty to extradite.
EXCEPTION: One can extradite by reason of customary law.
One can apply for asylum if you are persecuted, but not when prosecuted.
o Asylum (Political Asylum/Territorial Asylum) - A sanctuary or place of refuge and protection
 Page 27 of 61

Nature of Asylum: All States have the right to grant asylum, but an individual has no right
to demand asylum for it is not a demandable right. It may be granted or withheld at will of
the grantor.
Article 14 of UDHR states that:
Everyone has the right to seek and enjoy in other countries asylum from
persecution. This right may NOT be invoked in the case of prosecutions
genuinely arising from (1) non-political crimes or from (2) acts contrary to the
purposes and principles of the United Nations.

TERRITORIAL JURISDICTION
Land and Sea
General rule: A state has jurisdiction over all persons within its territorial jurisdiction.
o Easier to enforce than personal jurisdiction
o Subject to limitations
Exception to the rule on territorial jurisdiction:
1. Foreign State, Heads of State, Diplomatic Representatives Consuls (engaged in official function) to a
certain degree.
2. Foreign State properties, including embassies, consulates, and public vessels engaged in non-commercial
activities.
3. Acts of State Doctrine [Underhill v. Hernandez, 168 US 250 (1897)] the courts of one country will
not sit in judgment of the acts of the government of another country within its territory. Par in parem
not habet imperium means that all States are sovereign equals and cannot assert jurisdiction over
one another. (US vs. Guinto, GR 76607, Feb. 26, 1990)
4. For Merchant Vessels exercising the right of innocent passage or arrival under stress.
5. For armies passing through or stationed in its territory with its permission.
6. Such other persons/property, including organization like the UN, over which it may, by agreement,
waives jurisdiction.

February 8, 2007

Jurisdiction over land

Everything found within the terrestrial domain of state is under its jurisdiction.
Nationals and aliens, including non-residents, are bound by the laws of the country where they are located,
and no process from a foreign government can take effect for or against them within the territory of the
local state without its permission.
Local states have exclusive title over all property within its territory.

Traditional Division of Sea

1. Internal waters within baseline
2. Territorial seas 12 nm from baseline
3. High Seas beyond EEZ

BaselineTerritorial SeaContiguous ZoneEEZHigh Seas

 Page 28 of 61

Maritime and Fluvial Jurisdiction

Internal waters of a state are an integral part of the land mass and subjected to the same degree of
jurisdiction exercised over the terrestrial domain. (Includes: land locked lakes, national rivers, manmade
canals)
Internal waters regardless of depth is to be treated as land mass.

Public Vessels v. Merchant Vessels

Public Vessels Merchant Vessels
Civil, criminal and administrative jurisdiction is exercised Foreign merchant vessels docked in a local port or bay is
by the flag State over its public vessels wherever they under the jurisdiction of the local state in civil matters.
may be, provided they are NOT engaged in commerce. Criminal jurisdiction is determined according to either
the English and French Rule

ADDITIONAL NOTE: (Since a lot were asking about it)

Q: If a crime was committed over a maritime vessel while sojourning over the open seas/high seas (res communes), who
exercises jurisdiction?

A: [Qualify first as to what kind of vessel, i.e. public or private vessel (merchant, cargo, commercial, military)]

We have to qualify as to what kind of vessel is involved. If the crime is committed in a PUBLIC VESSEL, e.g. WARSHIPS, the same
considered an extension of the Flag States territory, and hence, the State who owns the same has jurisdiction.

Principle of Ex-Territoriality Penal laws apply to offenses committed within the premises of the PH which are considered EXTENSION
of PHs sovereignty, i.e. a PH Warship, assuming we have one.

If the crime is committed in a PRIVATE VESSEL, consider the place or country where it is registered or the flag of the vessel.

Q: What if the ship is within the internal waters or territorial waters of a State? Who exercises jurisdiction?

A: We have to qualify (again).

If the vessel is a public vessel, ex-territoriality rule applies since the vessel is a public one and is considered as the extension of the States
territory.

If the vessel is a private one and within our internal waters, we have to consider two (2) rules (theyre basically the same so just cite the
English rule since it is the one adopted by PH).

The English Rule provides that the LOCAL STATE (PH) ASSUMES JURISDICTION over ALL OFFENSES committed on board a
merchant vessel within its port EXCEPT those of a PETTY NATURE or AFFECTING the DISCIPLINE OF THE SHIP (INTERNAL
IN NATURE).

If petty in nature, the flag of the ship acquires jurisdiction

The French Rule provides that the FLAG STATE (referring to owner of vessel) has JURISDICTION over ALL OFFENSES
COMMITTED ON BOARD its merchant vessel UNLESS such crimes are of such a GRAVE NATURE.

If grave, the local States court assumes jurisdiction

Examples:

PP. vs. Wong Cheng (Smoking Opium aboard a foreign merchant ship within the PH territory constitutes a felony against the RPC).
 Page 29 of 61

US vs. Look Chaw mere possession of opium doesnt constitute a felony or breach of public order thus it is not triable in our courts.
However, if such opiums are landed from the vessel unto the Philippine ports or soil, this shall constitute an open violation against the laws
of the PH.

US vs. Ah Sing If the ship is not in transit and the PH is its port of destination, the mere possession of opium on board the vessel
constitutes an offense and the actor is liable because he may be held guilty of illegal importation of opium.

The Wildenhus Case (120 U.S. 1 (1887) A Belgian national stab and killed a crew member on board a Belgian ship docked at Jersey
City in the US. The Court held that the accused is subject to the local laws and may be punished for the crime committed on board a vessel
within the port of that State. The sovereignty of the home of the ship deals with disorders that disturb only the peace of the ship or those
on board, BUT the proper authorities of the local jurisdiction punish those that disturb the public peace. Felonious homicide is a subject
for the local jurisdiction.

ENGLISH vs. FRENCH RULE (General Rule)

ENGLISH Coastal states have jurisdiction
FRENCH Flag State have jurisdiction.

The Case of Wong Cheng (People v. Wong Cheng, G.R. No. L-18934, October 19, 1922)
Smoking Opium aboard a foreign merchant ship within the PH territory constitutes a felony against the
RPC.

Q: What are included in internal waters?

The waters Around Between and Connecting the islands of the archipelago, regardless of their Breadth And
Dimensions, forms part of the internal waters of the Philippines.
As internal waters, they are subject to exclusive jurisdiction
Except: archipelagic sea lane where the right of passage may be given to vessels as if they were open seas

Contiguous Zone
24 nm from outermost point of outermost island (12M from outer limit of territorial sea)
States exercise protective jurisdiction over contiguous zones
 Page 30 of 61

Convention on the Territorial Sea and the Contiguous Zone

Protective Jurisdiction

Prevent infringement of its

Punish infringement of the
customs, fiscal, immigration,
above regulations within its
pr sanitary regulations within
territory or territorial sea.
its territory or territorial sea

Q: What is referred to as the Continental Shelf?

1. The seabed and the subsoil of the submarine areas adjacent to the coast but outside the area of the territorial
sea, to a depth of two hundred meters, or beyond that limit, to where the depth of the superadjacent waters
admit of the exploitation of the natural resources of the said areas.
2. The seabed and subsoil of similar areas adjacent to the coast of islands.

Continental Shelf
Coastal state has sovereign and exclusive right to explore the continental shelf and to exploit its natural
resources.
Coastal state may erect installations and equipment as may be necessary.
Coastal states are allowed to establish on the open seas immediately above the installation a safety zone with
a radius of five hundred meters over which it may exercise jurisdiction for the protection of its properties
underneath

Patrimonial Sea (EEZ)

Also referred to as the EEZ.
All living and non-living resources found therein belong exclusively to the coastal state.

Open Seas/High Seas

Not owned by anyone (res communes)
Available to the use of all states for purposes of navigation, flying over them laying submarine cables or
fishing. In times of war, hostilities may be waged on the open seas.
 Page 31 of 61

Q: When may a State exercise jurisdiction over the high seas?

1. Over the vessel
2. Pirates (Piracy)
3. Visit and Search
4. Hot pursuit (it must be continuous and uninterrupted)

Aerial Jurisdiction
Local state has jurisdiction over the airspace above it to an unlimited height, or at the most up to where
outer space begins.
No foreign aircraft, military or civil, may pass through the aerial domain of a state without its consent.

Suicide Bombings
First I will ask Allah to bless my mission with a high rate of casualties among the Americans, he says,
speaking softly in a matter-of-fact monotone, as if dictating a shopping list. Then I will ask him to purify
my soul so I am fit to see him, and I will ask to see my mujahedin brothers who are already with him. He
paused to run the list though his mind again then resumes: the most important thing is that he should let
me kill many Americans.

The 9/11 Attack

The Bojinka Plot

Five Air Freedom

1. Freedom to fly across foreign territory without landing
2. Freedom to land for non-traffic purposes
3. Freedom to put down traffic originating in the state of the aircraft
4. Freedom to embark traffic destined for the state of the aircraft
5. Freedom to embark traffic destined for or to put down traffic originating in a third state.
 Page 32 of 61

Convention on Offenses and Certain other acts committed on board aircraft

General Rule: State of registration of aircraft has jurisdiction over offenses and acts committed on board
while it is in flight or over the high seas or any other area outside the territory of any state.
No other state may exercise jurisdiction over such aircraft except:
1. The offense has effect on the territory of such state
2. The offense has been committed by or against a national or permanent resident of such state
3. The offense is against the security of such state
4. The offense consists of a breach of any rules or regulations relating to the flight or maneuver of
aircraft in force in such state.
5. The exercise of jurisdiction of such state is necessary to ensure the observance of any obligation
of such state under a multilateral international agreement.

Outer space
Region beyond the earths atmosphere.
Above the air space looms the outerspace which completely beyond the sovereignty of any State [Salonga &
Yap]
Res-communes free for exploration and use by all states without discrimination of any kind, on a basis of
equality and in accordance with international law.
o It cannot be annexed by any State; that the exploration ad use of outerspace must be carried out for
the benefit of all countries and in accordance with international law; that the moon and celestial
bodies shll be used for peaceful purposes; that nuclear weapons and other weapons of mass
destructions must NOT be placed in orbit around the Earth. (1967 Treaty on Exploration and Use
of Outer Space.)(Salonga & Yap; Introduction to PIL by Bernas, S.J. 2009 Ed.)
State launching an object into outer space shall retain jurisdiction and control over such object, and over any
personnel thereof, while in the outer space or on the celestial bodies.

Q: Where do airspace ends and outer space begin?

ANS:

No definite answers but there are several propositions.

o Many believes the boundary should be near the lowest altitude (perigee) at which artificial earth
satellites can remain in orbit without being destroyed by friction with the air
o Others woud extend the airspace up to the theoretical limit of air flight.

Q: How a state asserts jurisdiction over other territories?

1. Through assertion of its personal jurisdiction over its nationals abroad or the exercise of its right to punish
certain offenses committed outside its territory against its national interest by aliens;
2. Its relations with other states or territories, as when it establishes a colonial protectorate, or a condominium,
or administers a trust territory, or occupies enemy territory in times of war.
3. As a consequence of the waiver of jurisdiction by a local state over persons and things within its territory;
4. Through acquisition of extraterritorial rights;
5. Through enjoyment of easements or servitudes.
 Page 33 of 61

February 14, 2017

RECOGNITION
Northern Cyprus
Azawad Not recognized; agreed for peace
Somaliland once a Brit colony; wanted to maintain independence; part of Somalia; rejected by Somalia and
international community
Abkhazia Russian supports its independence; 1914 revolution
Isis
Chechen Republic unrecognized state in Russia; independence in 1990; won war in 1996 but lost its
independence
Kosovo
Taiwan unrecognized island nation
Nogorno Karabath part of Soviet Union
Donetch Republic/ Nova Russia

Concept of Recognition
Declaratory (Majority View)
o Affirmation of facts that the entity possesses the status of being an international person
o Highly political and discretionary
Constitutive (Minority View)
o An indispensable element of being an international person
o Mandatory and Legal

Object of Recognition
State
o Irrevocable
o Redounds to recognition of government
Government
o May be withdrawn
o Does not mean statehood is also recognized
Belligerent Community
o Does not mean recognition of states or government
 Page 34 of 61

State

Objects of
Recognition

Belligerent
Government
Community

Kinds of Recognition
Express
o May be verbal or in writing
o May be through formal proclamation or announcement, a stipulation treaty, letter or telegram or on
the occasion of an official call or conference.
Implied
o By entering into an official transaction with the new number.
o Changing diplomatic representatives, concluding bipartite treaty, acknowledging the flag of the new
entity, or otherwise entering into formal relations with it.
The act constituting recognition shall give a clear indication of an intention:
1. To treat the new state as such
2. To accept the new government having legitimate authority to represent the state
3. To recognize the insurgents that they are entitled to exercise rights of belligerents.

Recognition of States
Definition
o The free act by which one or more states acknowledge the existence on a definite territory of a
human society politically organized, independent of any existing state, and capable of observing the
obligations of international law, and by which they manifest before their intention to consider it a
member of the international community.

Two kinds of government

1. De Jure officially recognized by the constitution and other (neighboring) states, and sometimes even
supranational and inter-governmental institutions.
2. De Facto not recognized by the constitution, usually caused by for example a revolution within (i.e.
revolutions caused by the people of the State).
 Page 35 of 61

a. Established by Revolution
b. Established by Invading Forces during war
c. Established by Secession

De Jure vs. De Facto

Snap election inauguration during Marcoss time vs. EDSA Revolution (ousting Marcos and Cory was put in the
position)

The Tobar or Wilson Principle

Expressed in a treaty of the Central American Republics in 1907 at the suggestion of Foreign Minister
Tobar of Ecuador and reiterated in 1931 by President Woodrow Wilson of the United States.
Recognition shall NOT be extended to any government established by revolution, civil wr, coup detat or
other forms of internal violence until the freely eleted representatives of the people have organized a
constitutional government.
This precludes recognition to any government coming into existence by revolutionary means so long as the
freely elected representatives of the people thereof have not constitutionally reorganized the country.

Stimson Principle
Policy of the US Federal Government, enunciated in a note of January 7, 1932 to Japan and China, of non-
recognition of international territorial changes affected by force; named after Henry L. Stimson, US
Secretary of State.
No government established as a result of external aggression shall be recognized

Estrada Doctrine
Espoused by Mexicos Minister Genaro Estrada (1930).
States cannot pass judgment regarding the right of foreign nations. A state may not issue a declaration giving
recognition to such government, but merely accept whatever government is in effective control without
raising the issue of recognition. Dealing or not dealing with the government is not a judgment on the
legitimacy of the said government.

Modern View
States extends recognition to a new government only if it is shown that it has control of the administrative
machinery of the state with popular acquiescence and that it is willing to comply with its international
obligations.
o Objective Test
Government must be able to maintain orders within the state to repel external aggression
o Subjective Test
Employed for the purpose of justifying the withholding of recognition from a government
that is politically acceptable.

Kinds of Recognition
DE JURE DE FACTO
Relatively permanent Provisional
Vests title in the government to its properties abroad Does NOT vest title to properties
Brings about full diplomatic relations Limited to certain juridical relations
 Page 36 of 61

Consequences of Recognition
1. Full diplomatic relations are established except when government recognized is de facto.
2. The recognized state or government acquires the right to sue in the courts of the recognizing state.

RECOGNITION OF BELLIGERENCY

Belligerency
This exists when the inhabitants of a state rise up in arms for the purpose of overthrowing the legitimate
government.

INSURGENCY BELLIGERENCY
Initial stage of belligerency Serious and widespread
Directed by Military Authorities Under a Civil Government
NOT recognized May be recognized

Effects of Local (minor) Belligerency

Internal affair or a state which does not produce international repercussion
o State to state relations is still government by laws of peace
o Government vs. belligerents are governed by Municipal law
Damage caused by rebels to a third state is imputable to the legitimate government.

Widespread (Full) Belligerency

1. There must be organized civil government directed the rebel forces;
2. The rebels must occupy a substantial portion of the territory of the state;
3. The conflict between the legitimate government and the rebels must be serious, making the outcome
uncertain;
4. Rebels must be willing and able to observe the laws of war.

Consequence of recognition of belligerency

Belligerent community is considered as a separate state.
Relationship between Belligerent and legitimate government will be governed by the laws of war.
Relationship between belligerent and legitimate government and other states will be governed by the laws of
neutrality.

Right of Existence and Self-Defense

Right of Existence
Regarded as one of the most important rights
Aristotle: The proof that the state is a creation of nature and prior to the individual, when isolated, is NOT
self-sufficing.
It is most comprehensive
o Police power
STATISM ideas so good they have to be mandatory.
 Page 37 of 61

o Eminent Domain
o Taxation
An exercise of inherent rights NOT dependent on state recognition or consent

Right of Self-defense (RSD)

RSD is acknowledged in major international agreements
Part of Customary international law
Article 51, UN Charter:
o Nothing in the present Charter shall impair the inherent right of individual or collective self-
defence if an armed attack occurs against a Member of the United Nations, 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-defence shall be immediately reported to the Security
Council and shall NOT in any way affect the authority and responsibility of the Security Council
under present Charter to take at any time such actions as it deems necessary in order to maintain or
restore international peace and security.

Requisites before the exercise of the right: SELF DEFENSE

1. Armed attack
2. UNSC has NOT taken measures

General Rule: Prohibition on the use of force

1919 Convention of the League of Nations

1928 General Treaty for Renunciation of War as an Instrument of National Policy a.k.a. Kellogg-Briand
Pact
1945 UN Charter

Article 2(4) UN Charter

Requires all Members of the United Nations to refrain in their international relations from the treat 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.

Factors to consider (requisites)

Necessity and proportionality

o Forcible measure may be taken by the State only in the face of a necessity of self-defense instant ,
overwhelming and leaving no choice of means and no moment for deliberation
o Mere apprehended danger or any direct threat to the state does NOT, by itself, warrant the
employment of that state of any force against a suspected or potential enemy.
o Right may be resorted to only upon a clear showing of grave and actual danger to the security
of the state.
o A state CANNOT resort to force in response to non-military actions and threats, such as
economic coercion, no matter how damaging they may be to that States rights and interests.
Armed Attack vs. Aggression
o 1991 Gulf War Breach of Peace
 Page 38 of 61

The Iraqi invasion of Kuwait in 1990 is a breach of peace according to the UN Security
Council
o 9/11 Attack Armed attack
UNSC treated terrorist attacks on targets in the US on 11 September 2001, which took the
form of crashing hujaked civil airliners into the World Trade Center in New York and the
Pentagon, as an armed attack.
o French text of Article 51 aggression arme
o Aggression more serious than a breach of the peace

Q: What is an armed attack?

Ans: No definition given in the UN Charter

But in Nicagarua v. USA (1984 case decided by the ICJ):

An armed attack must be understood as including not merely action by the regulat armed forces across an
international border, but also the sender by or on behalf of a State of armed bands, groups, irregulars or
mercenaries, which carry out acts of armed forces against another State of such gravity as to amount to
(inter alia) an actual armed attack conducted by regular forces, or its substantial involvement therein
Scale and effect
o Use of force would NOT amount to an armed attack for the purposes of the right of self-defence
UNLESS it was of a particular scale and effect (Nicaragua v. USA)

THESIS: Democratic states will NOT fight against each other

Kant: Pacific Federation

USA: Bringing democracy to the world

US Interventions after the Cold War

Intervention Country Year Regime

Gulf War Iraq 1991 Saddam Hussein
(Dictatorship)
Battle of Mogadishu Somalia 1990 Mohamed Farrah Aidid
(Military Junta)
Afghan War Afghanistan 2003 Mohammed
Omar/Taliban
Islamic Fundamentalist)
Libyan Civil War Libya 2011 Muammar Gaddafi
(Military)
Other Relevant Events/Discussions:

Philippines: Introduced the ILOVEYOU Virus

The Cuban Missile Crisis

Collective Self-Defense
Article 52 (1) UN Charter:
 Page 39 of 61

o Nothing in the present Charter precludes the existence of regional arrangements or agencies
for dealing with such matters relating to the maintenance of international peace and security
as are appropriate for regional action provided that such arrangements or agencies and their
activities are consistent with the purpose and principles of the United Nations.
E.g. NATO (Parties agreed that an armed attack against one or more of them in Europe or
North America shall be considered an attack against them all)
Reason in allowing regional arrangement: Balance of Power

Balance of Power
Power imbalances lead to war since powerful states, unchecked, will acquire more power

International Humanitarian Law

Q: What is IHL?
Ans:

The law of war or law of armed conflict

IHL limits the effect of war
IHL protects persons who are NOT or are no longer participants in the hostilities
IHL restricts the means and method of warfare

Q: Why did IHL Originate?

Ans:

Modern warfare has taken an increasingly higher human toll

The use of force is NOT prohibited absolutely
International rules are need to:
1. Limit the effect of war on people and property
2. Protect certain particularly vulnerable persons

Geneva Conventions of 12 August 1949

1. Geneva Convention: Amelioration of the condition of the wounded and sick in the armed forces in the field
2. Geneva Convention: Amelioration of the condition of the wounded, sick and shipwrecked members of
armed forces at sea
3. Genera Convention: Treatment of Prisoners of War
4. Geneva Convention: Protection of Civilians in Time of War

Common Article 3
Part of Customary law
Applies specifically to non-international armed conflict
Protects every individual not or no longer actively involved in hostilities (including wounded and sick
Prohibits violence to life and persons, including cruel treatment and torture; taking hostages; degrading
treatment; passing of sentences and carrying out executions without previous judgment by a court
Applies at all times in places without exception in armed conflict
 Page 40 of 61

Additional Protocols of 8 June 1977

1. Additional Protocol I: Relating to the protection of victims of international armed conflicts
2. Additional Protocol II: Relating to the protection of victims of non-international armed conflicts

Application of IHL
The 4 Geneva Conventions and Additional Protocol I International Conflicts
Additional Protocol II Intensive non-international conflicts
Common Article 3 to the Geneva Conventions Non-international conflicts

IHL Protection for Children

Children are granted special protection
o Children shall be the object of special respect and shall be protected against any form of indecent
assault parties to the conflict shall provide them with care and aid they require (GC IV)
o Prohibits recruitment of child soldiers and participation in hostilities; child combatants entitled to
privileged treatment (Art. 77 API)

IHL Protection for Women

Special protection for women, expectant mothers, mothers of small children.
o GC IV & API:
Attack on honour, rape, enforced prostitution, or assault forbidden
o GC III, GC IV & API:
Special considerations while in detention
No death penalty

IHL vs. IHRL

IHL
Applies in situations of armed conflict
Rights are non-derogable
Seeks to protect by limiting suffering caused by war
Monitored by ICRC
Emphasizes cooperation between parties to the conflict
IHRL
Applies in war and peace
Certain rights may be suspended in emergencies
Seeks to protect the individual and promote
development by limiting state power
Monitored by various mechanisms e.g. treaty bodies,
courts, individuals

KEY MESSAGE
IHL seeks to limit suffering caused by war
IHL offers special protections to children and women
IHL applies to both international and non-international conflicts, and to all parties to conflict.
 Page 41 of 61

March 15, 2017 RIGHT OF INDEPENDENCE

Sovereignty
From Old French soverain, from Vulgar Latin superanus which means chief, principal.
Cannot be seen or felt but it exist. Atty. Libiran
It is the supreme, uncontrollable power inherent in a state by which that state is governed.
It I the supreme power of the state to command and enforce obedience, the power to which, legally
speaking, all interests are practically subject and all wills subordinate.
In international law: Attribute that enables the state to make its own decisions free from external influence
from the states.

Aspects of Sovereignty
1. Internal
a. Power of the state to direct its domestic affairs
2. External
a. Freedom of the state to control its own foreign affairs e.g. to enter into treaty

Nature of Independence
1. Independence
2. Freedom

NOTE: Your Liberty To Swing Your Fist Ends

William Edward Hall

The ultimate foundation of international law is an assumption that states possess rights and are subject to
the duties corresponding to the fact postulated

Thomas Hobbes (Leviathan)

State of Nature people could do whatever they wanted
People living in this violent state of nature will seek to create social agreements with each other. For
example, I wont steal from or kill you if you wont steal from or kill me.

Intervention (vs. Independence)

Act by which a state interferes with the domestic or foreign affairs of another state or states through the
employment of force or threat of force.
Allowed ONLY when it is exercised as an act of self-defense or when decreed by the UN Security Council.

NOTE: Intervention is tantamount to waging war

Some declarations about non-intervention

UN Declaration of the Rights and Duties of States every state has the duty to refrain from intervention
in the internal or external affairs of any other State.
Charter of the Organization of American States no State or group of States has the right to intervene,
directly or indirectly, for any reason whatsoever, in the internal or external affairs of any other State.

NOTE: See Larazabal case on Death Penalty

 Page 42 of 61

Non-intervention rules have been blurred due to Humanitarian reasons

Battle of Mogadishu in Somalia Black Hawk Down
o If we will not do it, who else will?
See: White Mans Burden

The Drago Doctrine

Announced in 1902 by the Argentine Minister of Foreign Affairs Luis Maria Drago

The Calvo Doctrine

jurisdiction in international investment disputes lies with the country in which the investment is located.
Proposed to prohibit diplomatic protection or (armed) intervention before local resources where exhausted.
An investor, under this doctrine, has NO recourse but to use the local courts, rather than those of their
home country.

March 18, 2017 Right of Equality

UN MEMBERS
G5/Nuclear Club/Permanent Members US, France, UK, China, Russia
o Only countries that can have nuclear weapons, exempt from the Prohibition on Nuclear
Proliferation.

Article 2 Charter of the UN

the Organization is based on the principle of the sovereign equality of all its members

Manifestations of right to equality

All members of the UN have each one vote in the GA, all votes having equal weight, and are generally
eligible for positions in the various organs of the UN.
Every state has the right to the protection of its nationals, to make us of the open seas, or to acquire or
dispose of territory.
All states have same rights when involve in a war (e.g. POW).
Par in parem non habet imperium an equal has no power over an equal.
Act of the State Doctrine no other state can question the legality of official acts of another state.
(Underhill vs. Hernandez [1897])

UNDERHILL vs. HERNANDEZ

168 US 250 (1897)

FACTS: Gen. Hernandez was in command of a revolutionary army in Venezuela when an engagement took place
with the government forces which resulted in his occupation of Bolivar. George Underhill was living in Bolivar,
where he had constructed a waterworks system for the city under a contract with the government, and carried on a
machinery repair business. He applied for a passport to leave the city, which was refused by Hernandez with a view
to coerce him to operate his waterworks and his repair works for the benefit of the community and the
revolutionary forces. Subsequently a passport was given him. Underhill then sued Hernandez in the Second Circuit
 Page 43 of 61

Court to recover damages caused by the refusal to grant the passport, for alleged confinement of him to his own
house, and for alleged assaults and affronts by Hernandez' soldiers.

ISSUE: Whether or not Underhill may recover damages from the acts of Hernandez?

RULING: The revolutionary government under which Hernandez was acting was recognized by the United States
as the legitimate government of Venezuela. All the acts of Hernandez, although it seems to be unlawful or illegal,
are under act of the state and cannot be questioned by another state. Thus, Underhill may not recover damages
because the acts of Hernandez were those of a military commander, representing a de facto government in the
prosecution of a war, hence, he was not civilly responsible and that the acts of Hernandez were the acts of the
government of Venezuela.

Absolute equality: Fact or Fiction?

Consider working of UNSC: non-procedural (substantive) questions

The Nuclear Club

August 2, 1990 Iraq invaded Kuwait
Rwanda Genocide of 1994
o US did not help reasoning that it is domestic disturbance.

RIGHT OF INDEPENDENCE
Sovereignty
From Old French soverain, from Vulgar Latin superanus which means chief, principal.
Supreme, uncontrollable power inherent in a state by which a state is governed.
Supreme power of state to command and enforce obedience, the power to which, legally speaking, all
interests are practically subject and all wills subordinate.
In international law (IL): Attribute that enables the state to make its own decision free from external
influence from other states

Aspects of Sovereignty
INTERNAL
o Power of state to direct its DOMESTIC AFFAIRS
o E.g. establishment of own government, enactment of own laws, adoption of economic policies
EXTERNAL
o Freedom of the State to control its own foreign affairs
o E.g. entering into treaties, declaration of war, diplomatic and commercial relations.

Nature of independence

INDEPENDENCE
FREEDOM

YOUR LIBERTY TO SWING YOUR FIRST ENDS JUST WHERE MY NOSE BEGINS
 Page 44 of 61

William Edward Hall

The ultimate foundation of IL is an assumption that states possess rights and are subject to duties
corresponding to the fact of their postulated nature. In virtue of this assumption it is held that since states
exist, and are independent beings, possessing property, they have the right to do whatever is necessary for
the purpose of continuing and developing their existence, of giving effect to and preserving their
independence, and of holding and acquiring property, subject to the qualification that they are bound
correlatively to respect these rights in others. It is also considered that their moral nature imposes upon them
the duties of good faith, of concession of redress of wrongs, of regard for the personal dignity of their
fellows, and to a certain extent of sociability.

THOMAS HOBBES (LEVIATHAN)

State of Nature people could do whatever they wanted
People living in this violent state of nature will seek to create a social agreement with each other. For
example, I wont steal from or kill you if you wont steal from or kill me.

NOTE: Remember the concept of Social Contract Theory which is an unwritten social contract or Covenant, as he
termed it, which views that humans originally lived in a state of nature or anarchy, and that humans escape to this
state is the application of reason. Humans, being rationally good, freely choose actions that maximize pleasure in
life, and minimizing pain. As a consequence, a government is established in order to surrender their personal
freedom, and give the government the authority to enforce laws and agreements for their protection. This way, each
person agrees to follow the laws of the state on the condition that everyone else does the same. This way, we are all
relatively safe from each other and we all benefit from the other social good that will result.

INTERVENTION

Independence

Intervention

Acts by which a state interferes with the domestic or foreign affairs of another state of states through
the employment of force or threat of force.
Allowed ONLY when it is exercised as an act of self-defense or when decreed by UN Security Council
(UNSC).

NOTE: Intervention is done by way of exception. The general rule is the Act of the State Doctrine wherein
the courts of one country will NOT sit in judgment of the acts of the government of another done within
its territory. [Underhill vs. Hernandez, 168 U.S. 250 (1897)]. This is a choice-of-law rule where the court
chooses to uphold the foreign States act for to hold otherwise would imperil the amicable relations between
governments and vex the peace of nation.
 Page 45 of 61

SOME DECLARATION ABOUT NON-INTERVENTION

UN Declaration of the Rights and Duties of States Every state as the duty to refrain from intervention in
the internal of external affairs of any other State.
Charter of the Organization of American State no State or group of States has the right to intervene,
directly or indirectly, for any reason whatsoever, in the internal or external affairs of any other State.

NON-INTERVENTION RULES HAVE BEEN BLURRED DUE TO HUMANITARIAN REASONS

E.g. Battle of Mogadishu Black Hawk Down

NOTE: The idea that you justify intervention because of humanitarian reasons.

DRAGO DOCTRINE
Announced in 1902 by Argentine Minister of Foreign Affairs Luis Mara Drago
HISTORY: Venezuela then was indebted to Great Britain (UK), Germany, and Italy, which threatened
armed intervention to collect. Drago advised the US Gov that the public debt CANNOT occasion
armed intervention, or even the actual occupation
Read with Calvo Doctrine - jurisdiction in international investment disputes lies with the country in which
the investment is located. Proposed to prohibit diplomatic protection or (armed) intervention before local
resources where exhausted. An investor, under this doctrine, has NO recourse but to use the local courts,
rather than those of their home country. (Named after Carlos Calvo, an Argentine jurist).

RIGHTS OF EQUALITY

Article 2 of the UN Charter

the ORG is based on the principle of the sovereign equality of all its members
o LEGAL EQUALITY
Legal relations that States maintain with each other
o POLITICAL EQUALITY
Relative distribution of economic and military power between states

MANIFESTATION OF RIGHT TO EQUALITY

All members of the UN have each one vote in the GA, all votes having equal weight, and are generally
eligible for positions in the various organs of the UN.
Every state has the right to the protection of its nationals, to make use of the open seas, or to acquire or
dispose territory.
All states have same rights when involved in a WAR (e.g. Prisoners of War or POW)
Par in parem non habet imperium An equal has no power over an equal
o NOTE: Presumed that all States are treated as equals
Act of the State Doctrine no other state can question the legality of official acts of another state. (See
previous explanation)
 Page 46 of 61

ABSOLUTE EQUALITY: FACT OR FICTION?

Consider working of UNSC: Non-procedural (substantive questions are decided by the SC ONLY with the
CONCURRENCE of the BIG FIVE
o BIG FIVE are permanent members in UNSC unlike others with a term of ONLY two years i.e. US,
UK, FRANCE, CHINA, RUSSIA. Also known as the NUCLEAR CLUB

TREATIES

DEFINITION (BREAKDOWN)
Formal agreement,
(usually but not necessarily) in writing,
which is entered into by states or entities possessing the treaty-making capacity,
for the purpose of regulating their mutual relations under the law of nations.

NOTE: PREVIOUS DISCUSSION

Treaty is defined as a contract in writing between two or more political authorities (as states or
sovereign) formally signed by representative duly authorized and usually ratified by the lawmaking
authority of the state. (Atty. Libirans lecture)
The 1969 Vienna Convention on the Law on Treaties defines a treaty as an international agreement
concluded between States in written form and governed by international law, whether embodied in
a single instrument or in two or more related instruments and whatever its particular designation.
(Bernas, 2009 Ed.)

FUNCTIONS OF TREATIES
1. Enable parties to SETTLE actual and potential CONFLICTS
2. Makes it possible for the parties to MODIFY the RULE of international customary law by means of
optional principles or standards
3. Lead to a TRANSFORMATION OF UNORGANIZED INTERNATIONAL SOCIETY into one which
may be organized on any chosen level of social integration
4. Frequently provided the HUMUS for the GROWTH of International Customary Law

ESSENTIAL REQUISITES OF A VALID TREATY

1. Entered into by PARTIES with TREATY-MAKING CAPACITY
2. Through their AUTHORIZED REPRESENTATIVES
3. WITHOUT attendance of DURESS, FRAUD, MISTAKE, or other vice of consent
4. On any LAWFUL SUBJECT MATTER
5. In accordance with their respective CONSTITUTIONAL PROCESSES

TREATY-MAKING PROCES

Exchange of
Negotiation Signature Ratification
Instruments
 Page 47 of 61

BINDING EFFECT OF TREATIES

Pacta tertiis nec nocent prosunt a treaty does NOT create either an obligation or rights for a third State
without its consent.
Treaties are ONLY binding on the contracting parties and other states that later on sign by a process known
as accession.

INSTANCES WHEN TREATIES ARE MADE APPLICABLE EVEN TO THIRD PARTIES

1. Treaty is merely a formal expression of customary international law
2. As provided in the UN Charter: Non-member states must act in accordance with the principles of the
charter in so far as may be necessary for the maintenance of international peace and security
3. Where the treaty expressly extends its benefits to non-signatories

PACTA SUNT SERVANDA

Agreement must be kept
Every treaty in force is binding upon the parties to it and must be performed by them in good faith
Despite supervening hardship, the parties must comply with their commitments and perform treaty
obligation in good faith.

REBUS SIC STANTIBUS

Thing thus standing or things remaining as they are
A tacit condition attached to all treaties to the effect that they will no longer be binding as soon as the state
of facts and conditions upon which they were based changes to a substantial degree

NOTE: [As discussed in Public International Law by Salonga & Yap, 5th Edition] Rebus Sic Stantibus, to be applied,
must show the following requisites:

1. That a FUNDAMENTAL CHANGE IN CIRCUMSTANCES (FCIC) occurred at the time of the

conclusion of the treaty which was NOT foreseen by the parties.
2. That the existence of those circumstances constitutes the basis of the consent of parties to be bound by the
treaty.
3. That the change has radically transformed the extent of the obligations still to be performed under a treaty

A FCIC may NOT be invoked as a ground for terminating or withdrawing from a treaty or for suspending its
operation (a) IF the treaty establishes a boundary, or (b) IF the FCIC is the result of the breach by the party
invoking it of an obligation owed to any other party to the treaty.

LIMITATIONS TO THE DOCTRINE OF REBUS SIC STANTIBUS

1. Applies ONLY to treaties of INDEFINITE DURATION
2. VITAL CHANGE (FCIC) must have been UNFORSEEN or UNFORSEEABLE and should NOT have
been caused by the party invoking the doctrine
3. Must be invoked within a reasonable time
4. CANNOT OPERATE RETROACTIVELY upon the provisions of the treaty already executed prior to the
change of circumstance. (NOTE: Somewhat similar to Operative Fact Doctrine but the difference is in
operative fact, it refers to a law created despite being unconstitutional or containing an unconstitutional
 Page 48 of 61

provision, that, when finally removed or struck down as unconstitutional, the previous valid status before it
was declared null and void will still remain and be considered valid).

TERMINATION OF TREATIES [LEA V DE NIRO]

1. Expiration of terms
2. Accomplishment of the purpose
3. Impossibility of performance
4. Loss of the subject matter
5. Desistance of the parties, through EXPRESSED mutual consent, exercise of the right of denunciation
(desuetude) when allowed
6. Novation
7. Extinction of one of the parties
8. Rebus sic stantibus
9. Outbreak of War (Di kayo bati)
10. Voidance of the Treaty.

NOTE: [Based on Introduction to PIL by Bernas, 2009 Ed.]

Q: How is a treaty terminated?

The following are among the causes of termination of treaties:

1. Termination of the Treaty (Expiration or by Accomplishment of the purpose);

2. Withdrawal of the party in accordance with the terms of the treaty;
3. Extinction of one of the parties to the treaty;
4. Mutual agreement of all parties to terminate;
5. Denunciation of the treaty by one of the parties;
a. A party CANNOT denounce a treaty UNILATERALLY, but must seek the consent of the other
party or parties to the treaty, UNLESS the right of denunciation is recognized in the treaty or
implied from the nature of the treaty or it is established that the parties intended to admit the
possibility of denunciation or withdrawal.
6. Supervening Impossibility of Performance (Art. 61);
7. Conclusion of a subsequent inconsistent treaty between the same parties;
8. Violation of the treaty by one of the parties. (Art. 60. par. 3);
a. A material breach of a treaty by one party entitles the other party to terminate the treaty or suspend
its operation in whole or in part.
9. Doctrine of Rebus Sic Stantibus/Clausula Rebus Sic Stantibus (Art. 62);
10. Outbreak of War between the parties to the treaty.
 Page 49 of 61

UNITED NATION

HISTORY
St. James Palace Declaration
o The ONLY true basis of enduring peace is the willing cooperation of free peoples in a world in
which, relieved of the menace of aggression , all may enjoy economic and social security
o It is our intention to work together, and with other free peoples both in war and peace, to this
end.
Atlantic Charter on 14 August 1941
o Signed by President Roosevelt and Prime Minister Churchill on the U.S.S Augusta
...A Joint Declaration by the United States of America, the United Kingdom of Great Britain and Northern
Ireland, the Union of Soviet Socialist Republics, China, Australia, Belgium, Canada, Costa Rica, Cuba,
Czechoslovakia, Dominican Republic, El Salvador, Greece, Guatemala, Haiti, Honduras, India,
Luxembourg, Netherlands, New Zealand, Nicaragua, Norway, Panama, Poland, South Africa, Yugoslavia.
The Governments signatory hereto, Having subscribed to a common program of purposes and principles
embodied in the Joint Declaration of the President of United States of America and the Prime Minister of
the United Kingdom of Great Britain and Northern Ireland dated August 14, 1941, known as the Atlantic
Charter. Being convinced that complete victory over their enemies is essential to defend life, liberty,
independence and religious freedom, and to preserve human rights and justice in their own lands as well as
in other lands, and that they are now engaged in a common struggle against savage and brutal forces seeking
to subjugate the world, DECLARE: (1) Each Government pledges itself to employ its full resources,
military or economic, against those members of the Tripartite Pact and its adherents with which such
government is at war. (2) Each Government pledges itself to cooperate with the Governments signatory
hereto and not to make a separate armistice or peace with the enemies. The foregoing declaration may be
adhered to by other nations which are, or which may be, rendering material assistance and contributions in
the struggle for victory over Hitlerism.
DONE at Washington
January First, 1942
Moscow Declaration
o 30 October 1943, the Moscow Declaration was signed by Vyaches Molotov, Anthony Eden, Cordell
Hull and Foo Ping Shen, the Chinese Ambassador to the Soviet Union.
Teheran Declaration
o In December 1943, two months after the four-power Declaration, Roosevelt, Stalin and Churchill,
meeting for the first time at Teheran, the capital of Iran, declared that they had worked out
concerted plans for final victory.
QUOTABLE QUOTES: We are sure that our concord will win an enduring peace. We recognize fully the
supreme responsibility resting upon us and all the United Nations to make a peace which will command the
goodwill of the overwhelming mass of the peoples of the world and banish the scourge and terror of war
for many generations.
7 October 1944 - representatives of China, Great Britain, the USSR and the United States met for a
business-like conference at Dumbarton Oaks, a private mansion in Washington, D. C. Proposal for the
structure of the world organization was submitted by the four powers to all the United Nations
governments
 Page 50 of 61

25 April 25 1945 - United Nations Conference on International Organization (San Francisco)

26 June 1945 50 nations signed the UN Charter (Poland, which was unable to send a representative to the
conference due to political instability, signed the charter on October 15, 1945)
24 October 1945 charter was ratified by the Governments of the Republic of China, France, the USSR, the
United Kingdom, and the United States, and by a majority of the other 46 signatories.

MEMBERSHIP AND OFFICE

193 member states
Headquarters is situated in New York
Six official languages are used at the UN: Arabic, Chinese, English, French, Russian, and Spanish.
The current secretary general is Antonio Guterres of Portugal

OBJECTIVES OF THE UN
1. To keep peace throughout the world.
2. To develop friendly relations between nations.
3. To work together to help people live better lives, to eliminate poverty, disease and illiteracy in the world, to
stop environmental destruction and to encourage respect for each other's rights and freedoms.
4. To be a center for helping nations achieve these aims.

PRINCIPLES
1. Sovereign equality
2. Pacta Sunt Servanda
3. Settlement of international disputes by peaceful means
4. Refrain from the threat or use of force against the territorial integrity or political independence of any state
5. Assistance to UN and refrain from giving assistance to any state against which the United Nations is taking
preventive or enforcement action
6. Applicability to non-member states
7. Non-intervention in matters which are essentially within the domestic jurisdiction

Membership Qualifications
1. Must be a state
2. Must be peace-loving
3. Must accept obligations contained in the charter
4. Able and willing to carry out obligations

PERMANENT MEMBERS [THE BIG FIVE]

1. China
2. France
3. Russia
4. United Kingdom
5. United States.

ORGANS OF THE UN
General Assembly
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o The General Assembly (GA) is the main deliberative, policymaking and representative organ of the
UN.
o Composed of 193 members Decisions on important questions, such as those on peace and security,
admission of new members and budgetary matters, require a two-thirds majority.
o Decisions on other questions are by simple majority. Each country has one vote.
Economic and Social Council
o promoting higher standards of living, full employment, and economic and social progress;
o identifying solutions to international economic, social and health problems;
o facilitating international cultural and educational cooperation; and encouraging universal respect for
human rights and fundamental freedoms.
Secretariat
o International staff working in duty stations around the world carries out the diverse day-to-day
work of the Organization.
o It services the other principal organs of the United Nations and administers the programs and
policies laid down by them.
o At its head is the Secretary-General, who is appointed by the General Assembly on the
recommendation of the Security Council for a five-year, renewable term.
o The duties carried range from administering peacekeeping operations to mediating international
disputes, from surveying economic and social trends and problems to preparing studies on human
rights and sustainable development. Secretariat staffs also inform the world's communications media
about the work of the United Nations; organize international conferences on issues of worldwide
concern; and interpret speeches and translate documents into the Organization's official languages.
International Court of Justice
o The International Court of Justice (ICJ) is the principal judicial organ of the United Nations (UN).
o It was established in June 1945 by the Charter of the United Nations and began work in April 1946.
o The seat of the Court is at the Peace Palace in The Hague (Netherlands).
o The Courts role is to settle, in accordance with international law, legal disputes submitted to it by
States and to give advisory opinions on legal questions referred to it by authorized United Nations
organs and specialized agencies.
o The Court is composed of 15 judges, who are elected for terms of office of nine years by the United
Nations General Assembly and the Security Council.
o Its official languages are English and French.
Security Council
o 5 permanent members
o 10 rotating members with a term of 2 years (5 from African and Asian states, 2 from Latin American
States, 2 from Western European and other states)
o Responsible for the maintenance of international peace and security.
o FUNCTIONS OF SECURITY COUNCIL
1. to investigate any dispute or situation which might lead to international friction;
2. to recommend methods of adjusting such disputes or the terms of settlement;
3. to formulate plans for the establishment of a system to regulate armaments;
4. to determine the existence of a threat to the peace or act of aggression and to recommend
what action should be taken;
 Page 52 of 61

5. to call on Members to apply economic sanctions and other measures not involving the use
of force to prevent or stop aggression;
6. to take military action against an aggressor;
7. to recommend the admission of new Members;
8. to exercise the trusteeship functions of the United Nations in "strategic areas";
9. to recommend to the General Assembly the appointment of the Secretary-General and,
together with the Assembly, to elect the Judges of the International Court of Justice.
Functions.
Trusteeship
o Responsible for supervising the administration of Trust Territories placed under the Trusteeship
System.
o Major goals: to promote the advancement of the inhabitants of Trust Territories and their
progressive development towards self-government or independence.
o The aims of the Trusteeship System have been fulfilled to such an extent that all Trust Territories
have attained self-government or independence, either as separate States or by joining neighbouring
independent countries.
o The Council suspended operation on 1 November 1994, with the independence of Palau, the last
remaining United Nations trust territory, on 1 October 1994.

NATIONALITY AND STATELESS

NATIONALITY CITIZENSHIP
Ethnic Juristic
Innate May be changed

Citizenship
Tie that binds an individual to his state, from which he can claim protection and whose laws he is obliged to
obey.
Membership in a political community with all it concomitant rights and obligations
CASE:
o September 21, 2011 -- At least 30,000 feet above ground, baby boy Kevin Rayman Francis was born
inside a Philippine Airlines Boeing 747-400 plane, flying from Manila to San Francisco.
o The babys mom, 41-year old Aida Alamillo, was given the go-signal to fly by her obstetrician, as
well as by the medical personnel from PAL. Her expected date of delivery was September 28.
o However, while on flight, Aida started to have contractions. This mother of four asked her 13-year
old son, who was traveling with her, to inform the flight attendants that she was having stomach
pains.
o Our ever dependable and super-efficient PAL crewmembers assisted her to the Business Class
section in the upper deck of the plane. A flight attendant and three nurses, who were fortunately on
board, helped Aida deliver her baby.
o After a precipitate labor that lasted only for 15 minutes, Baby Kevin made his first cry. The
announcement of his birth through the planes PA system made all the other passengers (mostly
Pinoys) clap and cheer!
 Page 53 of 61

Acquisition of citizenship
Birth
o Jus soli
o Jus sanguinis
Naturalization

1944 Convention on International Civil Aviation

Articles 1721, all aircraft have the nationality of the state in which they are registered

1961 Convention on the Reduction of Statelessness

For the purposes of determining the obligations under the convention, a birth on a ship or aircraft in international
waters or airspace shall be treated as a birth in the country of the ship or aircraft's registration.

Citizens of the Philippines

Under the 1987 Constitution, Section 1 Article IV, the following are citizens of the Philippines:
1) Those who are citizens of the Philippines at the time of the adoption of this Constitution;
2) Those whose fathers or mothers are citizens of the Philippines;
3) Those born BEFORE January 17, 1973, of Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority; and
4) Those who are naturalized in accordance with law.
Who are citizens under Paragraph 1?
1) Those who were citizens of the Philippine Islands at the time of the adoption of the
Commonwealth Constitution on November 15, 1935;
2) Those born in the Philippine Islands of foreign parents who, prior to the adoption of the
Commonwealth Constitution, had been elected to public office in the Philippine Islands;
3) Those whose fathers were citizens of the Philippines;
4) Those whose mothers were citizens of the Philippines and, upon attaining majority age, elected
Philippine Citizenship; and
5) Those who were naturalized in accordance with law.
Who are citizens under Paragraph 2?
o Commonwealth constitution only recognized those born of Filipino Fathers
o Now we recognize those born of Filipino parents.
o Prospective in application (Those born before 17 January 1973 to Filipino mothers need to elect
Philippine Citizenship)
Who are citizens under Paragraph 3?
o Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon
reaching the age of majority
o Election was extended and made available in the new constitution until 17 January 1994 only
Who are citizens under Paragraph 4?
o Naturalization
Process by which a foreigner acquires, voluntarily or by operation of law,the citizenship of
another state
o Kinds:
Direct
 Page 54 of 61

1) By individual proceedings, usually judicial, under general naturalization laws

2) By special act of the legislature, often in favor of distinguished foreigners who have
rendered some notable service to the local state
3) By collective change of nationality (enmasse)as a result of cession or subjugation
4) By adoption of orphan minors as nationals of the state where they are born
Derivative (Conferred):
1) On the wife of the naturalized husband
2) On the minor children of the naturalized parent
3) On the alien woman upon marriage to a national (ONLY IF woman has all the
qualifications and none of the disqualifications for naturalization)

LOSS OF CITIZENSHIP
Voluntary = NEW CITIZENSHIP
o Renunciation
o Request for Release
Involutary = NEW CITIZENSHIP
o Forfeiture
o Substitution

STATELESS
Condition or status of an individual who is born without any citizenship or who loses his citizenship without
retaining or acquiring another.

e.g.

1. Child born in a state where only jus sanguinis is recognized to parents whose state only observe jus soli rule
2. Person who renounced original citizenship in order to be naturalized in another state which subsequently
denaturalized him and the former state denied repatriation

NATURAL-BORN CITIZENS
Section 2 Article IV: Natural-born citizens are those who are citizens of the Philippines from birth without
having to perform any act to acquire or perfect their Philippine citizenship. Those who elect Philippine
citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens

TREATMENT OF ALIENS

State Responsibility
Ex. Trumps temporary travel ban

Minimum international standard

States are not obliged to admit aliens to their territory, but, if they permit aliens to come, they must treat
them in a civilized manner.
If an alien gets injured in the local state, his home state may exercise the right of diplomatic protection.
An alien may not demand more than what a country can provide
 Page 55 of 61

DOCTRINE of IMPUTABILITY
A STATE is LIABLE ONLY for its OWN ACTS AND OMISSION; and, in this context, the state is
identified with its governmental apparatus, NOT with the population as a whole.

STATE IS NOT LAIBLE FOR ACTS OF INDIVIDUALS, except:

1. Encouraging individuals to attack foreigners
2. Failing to take reasonable care to prevent the individuals
3. Obvious failure to punish the individuals
4. Failure to provide the injured foreigner with an opportunity of obtaining compensation from the
wrongdoers in the local courts
5. Obtaining some benefit from the individuals actfor example, keeping looted property
6. Express ratification of the individuals actthat is, expressly approving it and stating that that person
was acting in the name of the state

NATIONALITY OF CLAIMS
A claim in respect of damage against another state will fail UNLESS it can be proved that the injured
individual is a citizen of the claimant state.

NEUTRALITY

DEFINITION
The STATUS of a third state in NOT TAKING SIDE in any way whatsoever when other states are at war
Absolute neutrality virtually impossible in the modern world.
QUOTE: The Hottest Place in Hell is Reserved for Those Who Remain Neutral in Times of Great Moral
Conflict

NEUTRALITY
Dependent solely on the attitude of the neutral state,
which is free to join any of the belligerents at any time it
sees fit
Governed by the general law of nations
Obtains ONLY during WAR
ONLY STATES may become neutral
NEUTRALIZATION
Result of a treaty wherein the duration and the other
conditions of the neutralization are agreed upon by the
neutralized state and other powers
Governed by the neutralization agreement
Intended to operate in time of peace as well as in time
of war
Portions of states, like islands, rivers, and canals may
be neutralized

LAWS OF NEUTRALITY
Define:
1. The relations of the belligerent states with the neutral state
2. The relations of the belligerent states with the nationals of the neutral state
a. International Customary law
b. Declaration of Paris of 1856
c. Hague Conventions of 1907
d. Unratified declaration of London of 1909
 Page 56 of 61

Relations of Belligerent States and Neutral States

Neutral State
o Right and duty to ABSTAIN from taking part in the hostilities and from giving assistance to either
belligerent
o PREVENT its territory and other resources from being used in the conduct of the hostilities
o ACQUIESCE in certain restrictions and limitations that the belligerents may find necessary to
impose, especially in connection with international commerce
Belligerents
o Bound to respect the status of the neutral state, avoiding any act that will directly or indirectly
involve in in their conflict
o Submit to any lawful measures it may take to maintain or protect its neutrality

USE OF NEUTRAL TERRITORIES

War activities by or on behalf of any of the belligerents may NOT be undertaken in the territory of the
neutral state WITHOUT infringement of its neutrality
Neutral territory is inviolable and CANNOT be used by the belligerents for the movement of their
troops, the transport of war supplies, the erection of wireless stations for exclusively military purposes,
recruiting of soldiers, and the undertaking of military operations in general
Passage of sick and wounded troops is ALLOWED through a neutral state, provided personnel and
materials of war are not also carried

USE OF NEUTRAL TERRITORIES

Persons bound for enlistment in the belligerent armies may cross the neutral frontiers IF they do so
individually or separately, and NOT as a body.
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 theatre of war.
Escaped POW need NOT be detained by the neutral state but must be assigned a place of residence
IF they are allowed to remain.
Neutrality of a state is NOT affected by the mere passage through its territorial waters of warships or
prizes belonging to belligerents; HOWEVER, they may NOT enter neutral ports, harbors, and
roadsteads EXCEPT ONLY in cases of:
1. Unseaworthiness;
2. lack of fuel or provisions; or
3. stress of weather.
Where vessels from both belligerents are in neutral waters at the same time, a period of 24 hours
must elapse between the departure of the first vessel and the departure of the second, the order being
their time of arrival. Not more than 3 vessels from any belligerent shall be allowed. (Give-chance-to-
run doctrine. LOL)
Territorial waters of a neutral state must NEVER be used as asylum for belligerent vessels under pursuit
or attack by the enemy
Passage of military aircraft belonging to the belligerents is NOT allowed across the airspace of a
neutral state.
 Page 57 of 61

Where a belligerent aircraft is forced to land on neutral territory, the same should be detained and its
officers and crew interned

USE OF NEUTRAL FACILITIES AND SERVICES

Neutral state CANNOT give any form of direct assistance to any of the belligerents in the conduct of
the hostilities
o e.g. Sending of military contingents, extension of loans, sale of supplies of war
Neutral state is NOT 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

RELATIONS OF BELLIGERENT STATES WITH NATIONALS OF NEUTRAL STATES

Neutral states are free to allow their nationals to deal, in their private capacity, with any of the
belligerents
Individuals dealing with belligerents will not affect the neutrality of their state

VISIT AND SEARCH

Belligerent warships and aircraft have the right to visit and search neutral merchant vessels on the
high seas for the purpose of determining whether they are in any way connected with the hostilities

CONTRABAND
Term applied to goods which, although neutral property, may be seized by a belligerent because they are
useful for war and are bound for a hostile destination
May be absolute or conditional or free list
o E.g. PS2 used by IRAQIS to build explosives\

Contrabands are subject to condemnation

Doctrine of ultimate consumption goods intended for civilian use which may ultimately find their
way to and be consumed by the belligerent forces are also liable to seizure on the way
Doctrine of infection if contraband is shipped together with innocent goods belonging to the same
owner, they may also be seized
Doctrine of ultimate destination liability of contraband to capture is determined not by their
ostensible but their real destination
Doctrine of continuous voyage when goods are reloaded at the intermediate port on the same
vessel
Doctrine of continuous transport when goods are reloaded on another vessel or other form of
transportation

BLOCKADE
Hostile operation by means of which the vessels and aircraft of one belligerent prevent all other vessels,
including those of neutral states, from entering or leaving the ports or coasts of the other belligerent, the
purpose being to shut off the place from international commerce and communication with other states
o E.g. Pacific Blockade Applies ONLY to the vessels of the blockaded state and not the vessels of
other states
 Page 58 of 61

REQUISITES FOR A VALID BLOCKADE

1. Binding (communicated to the neutral states)
2. Effective (maintained by adequate force so as to make ingress to or egress from the port dangerous)
3. Established by the proper authorities of the belligerent government (usually the head of state)
4. Limited ONLY to the territory of the enemy (not extended to neutral places or international rivers
5. Impartially applied to all states alike

UNNEUTRAL SERVICE
Consists of acts, of a more hostile character than carriage of contraband or breach of blockade which are
undertaken by merchant vessels of a neutral state in aid of any of the belligerents

Right of Angary
A belligerent may, upon payment of just compensation, seize, use or destroy, in case of urgent necessity for
purposes of offenses or defense, neutral property found in its territory, in enemy territory, or on the high
seas
Requisites:
a. Property is in the territory under the control and jurisdiction of the belligerent
b. There is urgent necessity for the taking
c. Just compensation is paid to the owner

TERMINATION OF NEUTRALITY
Neutral State joins the WAR
Upon conclusion of PEACE\

WAR

MEANING OR CONCEPT OF WAR

As ACTION
o Armed contention between the public forces of states or other belligerent communities, implying
the employment of violence among the parties as a means of enforcing their respective demands
upon each other
As STATUS
o War may exist even without the use of force as when one state formally refuses to be governed by
the laws of peace in its relations with another state even if actual hostilities have not taken place
between them

BELLUM JUSTUM
War may be a just war IF it is a reaction to an international delict or crime.

NOTE: Outlawed already by the UN Charter which expressly prescribes the abstinence from the use of force in
the solution of international disputes.

Laws of War
Declaration of Paris of 1856 Warfare at Sea
Hague Conventions of 1899 Use of dumdum or expanding bullets and
 Page 59 of 61

asphyxiating gases
Hague Conventions of 1907 Opening of hostilities, laws and customs of warfare
on land, conversion of merchant ships into warships etc.
Geneva Convention of 1925 Use of asphyxiating, poisonous, and other gases and
of bacteriological methods of warfare
Geneva Convention of 1929 Treatment of the sick and wounded and of prisoners of
war
Declaration of London of 1936 Use of submarines against merchant vessel
Geneva Convention of 1949 Amelioration of the sick and wounded on land on sea
and treatment of POW and protection of civilians

Q: How are violations of the laws of war sanctioned?

1. Protest lodged by one belligerent, usually accompanied or followed by an appeal to world opinion against
the unlawful acts of warfare committed by the other belligerent
2. Reparation for damages caused by the defeated belligerent
3. Punishment of war criminals

COMMENCEMENT OF WAR
Hague Conventions of 1907: Hostilities must NOT commence WITHOUT a previous and explicit
warning, in the form either (a) reasoned declaration of war or (b) an ultimatum with conditional
declaration
War is supposed to commence on the date specified to the enemy.
War is deemed to have commenced upon the commission of an act of force by at least one of the
belligerents as an act of war.

EFFECT OF OUTBREAK OF WAR

1. Laws of peace cease to regulate the relations of the belligerents and are superseded by the laws of war
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 canceled, but those which are
precisely intended to operate during war are activated. Treaties of technical or administrative matters are
suspended.
4. Individuals are impressed with enemy character: As nationals, as domiciliary, and as participants in the
activities
5. Enemy public property found in the territory of the other belligerent at the outbreak of the hostilities
is, with certain exceptions, subject to confiscation

COMBATANTS
1. Members of the armed forces, EXCEPT those NOT engaged in combat like chaplains and medical
personnel
2. Irregular forces, provided that: a) They have a commander responsible for them; b)They wear a fixed
distinctive sign recognizable at a distance; c) Carry arms openly; d) Conduct their operations in
accordance with the laws and customs of war
3. Inhabitants of unoccupied territory who, on approach of the enemy, spontaneously take arms to resist the
invading troops without having time to organize themselves
4. Officers and crew of merchant vessels who forcibly resist attack
 Page 60 of 61

Treatment of POW
1. Right to be accorded the proper respect commensurate with their rank
2. Right to adequate food and clothing
3. Right to safe and sanitary quarters
4. Right to medical assistance
5. Right to refuse to give military information or render military service against their own state
6. Right to communicate with their families

Basic principles of the rules of warfare

Military Necessity
o Belligerents may, subject to the other two principles, employ any amount and kind of force to
compel the complete submission of the enemy with the least possible loss of lives, time and
money
Principle of Humanity
o Prohibits the use of any measure that is NOT absolutely necessary for the purposes of the
war, such as poisoning of wells and weapons, the employment of dumdum or expanding bullets and
asphyxiating gases, the destruction of works of art and property devoted to religious or humanitarian
purposes, the bombing of undefended places, and attack of hospital ships
Principle of chivalry
o Basis of such rules as those that require the belligerents to give proper warning before launching
a bombardment or prohibit the use of perfidy in the conduct of hostilities

Kinds of warfare
1. Land
2. Sea
3. Air - Separately or simultaneously

THEATRE OF WAR REGION OF WAR

Place where the hostilities are actually conducted Greater area where the belligerents may lawfully engage
each other

Belligerent Occupation
Territory 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
Belligerent occupation does NOT result in transfer or suspension of the sovereignty of the legitimate
government although it may at the moment be unable to exercise it

POSLIMINIUM
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 in which they belong
Jus postliminuim: reinstatement of the authority of the displaced government once control of the enemy is
lost over the territory affected.
 Page 61 of 61

NON-HOSTILE INTERCOURSE
1. Flag of truce white flag carried by an individual authorized by one belligerent to enter into
communications with the other
2. Cartels agreements to regulate intercourse during war on such matters as postal and telegraphic
communications, the reception of flags of truce, and the exchange of prisoners
3. Passport written permission given by the belligerent government or its authorized agent to the subjects of
the enemy state to travel generally in belligerent territory.
4. Safe-conduct pass given to an enemy subject or to an enemy vessel allowing passage between defined
points.
5. Safeguard protection granted by a commanding officers either to enemy persons or property within his
command.
6. License to trade permission given by the competent authority to individuals to carry on trade even
though there is a state of war

Suspension of Hostilities
Suspension of arms temporary cessation of the hostilities by agreement of the local commanders for the
purpose of gathering the wounded and the burial of the dead
Armistice suspension of all hostilities within a certain area in the entire region of the war for the purpose
of arranging the terms of peace
Cease-fire unconditional stoppage of hostilities by order of an international body for the purpose of
employing peaceful means of settling the differences between the belligerents
Truce Cease-fire with conditions attached
Capitulation surrender of military forces, places, or districts in accordance with the rules of military
honor (Hara Kiri)

Termination of War
Simple cessation of hostilities
Treaty of Peace
Defeat of one of the belligerents