OUTLINE INTRODUCTION

TO PUBLIC
INTERNATIONAL LAW

ANTONIO E. B. NACHURA
and

JEMY GATDULA

Published & Distributed by

’REX Book Store

856 Nicanor Reyes, Sr. St.
Tel. Nos. 736-05-67 ■ 735-13-64
1977 C.M. Recto Avenue
Tel. Nos. 735-55-27 * 735-55-34
Manila, Philippines
www.rexpublishing.com.ph

UNIVERSITY OF THE CORDILLEk, .

LIBRARIES
 ACKNOWLEDGMENT

For the performance of my role in the production of

this work, I acknowledge the full support of the Arellano
University School of Law (AUSL), the inspiration of
my wife, Chit, the encouragement of my children,
Annalou and John, Joy and Andree, Ryan and Aby,
Andy and Luzette, and the indispensable participation
of my godson and co-author, Atty. Jemy Gatdula, one
of few very promising scholars in the field of Public
International Law in this country. Without them, this
book would never have been born.

A. E. B. Nachura

To Karen and Cio, my parents Lito and Juliet,

will always be grateful.
Also, David Rosario and Cristina Montes, for
their invaluable support. — Jemy Gatdula
 CONTENTS

CHAPTER I. GENERAL PRINCIPLES............................................. 1

CHAPTER II. SUBJECTS OF INTERNATIONAL LAW.... 22
CHAPTER III. FUNDAMENTAL RIGHTS OF STATES .... 48
CHAPTER IV. TERRITORY OF STATES....................................... 61
CHAPTER V. JURISDICTION...................................................... 71
CHAPTER VI. RIGHT OF LEGATION........................................... 85
CHAPTER VII. TREATIES........................................................... 97
CHAPTER VIII. NATIONALITY AND STATELESSNESS.... 119
CHAPTER IX. STATE RESPONSIBILITY.................................... 124
CHAPTER X. TREATMENT OF ALIENS.................................... 132
CHAPTER XI. 1982 UNITED NATIONS CONVENTION
ON THE LAW OF THE SEA (UNCLOS).... 144
CHAPTER XII. HUMAN RIGHTS............................................... 170
CHAPTER XIII. INTERNATIONAL ENVIRONMENTAL
LAW............................................................ 177
CHAPTER XIV. INTERNATIONAL ECONOMIC LAW................ 187
CHAPTER XV. ASSOCIATION OF SOUTHEAST
ASIAN NATIONS.......................................... 231
CHAPTER XVI. INTELLECTUAL PROPERTY............................. 244
CHAPTER XVII. SETTLEMENT OF DISPUTES......................... 248
CHAPTER XVIII. WAR AND NEUTRALITY................................ 262

ANNEXES
CHARTER OF THE UNITED NATIONS............................. 277
STATUTE OF THE INTERNATIONAL COURT
OF JUSTICE........................................................... 311
 I. GENERAL PRINCIPLES

A. International Law Defined.

1. Origins. The intellectual origins of international law
run concurrently with the development of sovereignty.
Initially, Hugo Grotius and Alberico Gentili (16th
century), both of competent theological training,
characterized international law as municipal law writ
large.
2. Breakthrough. By the early 19th century, following
the Napoleonic wars, the first major peace summit
took place (Congress of Vienna, 1814-15), followed
by the early versions of several important treaties
including those establishing rules for the navigation
of rivers (1815), those establishing the neutrality
of Switzerland (1831) and Belgium (1831), the first
codified law on maritime warfare (Declaration of Paris,
1856), and, much later, the Kellogg-Briand Pact (1928)
which sought to limit or abolish war. Notably, these
years also saw the creation of an early framework of
rules regarding the recognition of States, and State
responsibility.
3. Terminology. The term international law was first
formally used by Jeremy Bentham in 1870. [See: J.
Bentham, Introduction to the Principles of Morals and
Legislation, 1789]
4. Traditional Definition. That branch of public law
which regulates the relations of States and of other
entities which have been granted international
personality. [This definition focuses on subjects, which
are entities that possess international personality
and have rights and obligations recognized under
international law, as against objects, which are
persons or things in respect of which rights are

1
 OUTLINE INTRODUCTION TO PUBLIC
INTERNATIONAL LAW

held and obligations assumed by the subjects of

international law.] Another traditional definition is
that of Oppenheim, who refers to international law as
"a body of customary and conventional rules which are
considered legally binding by civilized States in their
intercourse with each other.” This definition appears
to exclude general principles of law and seems to make
a subjective distinction between so-called civilized and
non-civilized States. [See: L. Oppenheim, International
Law: A Treatise, 1912]
5. Modem Definition. The law that deals with the
conduct of States and international organizations,
their relations with each other and, in certain
circumstances, their relations with persons, natural
or juridical [American Third Restatement], In a sense,
the broadening scope and breadth of international law
means that in contemporary times, it affects almost
every aspect of our lives.

Basis of International Law.

1. The Natural Law School There is a natural and
universal principle of right and wrong, independent
of mutual intercourse or compact, which can be
discovered and recognized by every individual through
the use of his reason and conscience. Since individuals
compose the State whose will is but the collective will
of the inhabitants, the State also becomes bound by
the natural law.
2. The Positivist School. The binding force of
international law is derived from the agreement of the
States to be bound by it. In this context, international
law is not a law of subordination but of coordination.
3. The Eclectic or Grotian School. In so far as it
conforms to the dictates of right reason, the voluntary
law may be said to blend with the natural law and
be, indeed, an expression of it. In case of conflict, the
natural law prevails, being the more fundamental law.
4. Other suggested basis: Ubi Societas Ibi Jus. Under
this concept, law is considered as the hallmark of any
political community which intends to act together
 I. GENERAL PRINCIPLES 3

for the common good. Law is therefore considered

necessary for the society to function and, because it is
necessary, it is ex hypothesi binding.
5. Belief of States. Another cogent argument for
international law is simply that it exists because
States believe it exists. This belief can be seen from
the communications the States make to each other,
communications which notably contain substantial
references to law and other legal references.

C. Theories of International Relations.

1. Realist Theoru. This theory provides that States
are in a constant struggle for power; therefore, each
State can be reasonably assumed to be acting only in
pursuit of their individual interests.
2. Institutionalist Theoru. This theory is more interested
with understanding international relations through
the interplay of States in the different institutions.
As such, the relations of States are a product of their
interaction not only among themselves, but also with
the various institutions and hierarchical structures in
the global political sphere.
3. Afeo libera list Theoru. This theory proceeds from
an assumption that States are geared towards gains
and profit, therefore, relations are often dependent on
whether the same would be profitable or not.
4. Democratic Peace Theory. This theory provides that
democratic States are generally hesitant to go to war
with other democratic States. [See also: Golden Arches
Theory of Conflict Prevention]
5. Hegemonic Stability Theoru. This provides that the
global system is likely to be stable when controlled by
a single State which would be known as the Hegemon.

D. Public International Law Distinguished from:

1. Private International Law. As to nature, international
not municipal; as to remedies, international modes
vs. local tribunals; as to parties, international entities
not private persons; as to enforcement, international
4 OllTUNK INTRODUCTION TO I'UHLIC
INTHKNATIONAL l-AW

sanctions not local sheriff/police. Furthermore,

Private International Law (or Conilicts of Laws) is not
really a branch of international law but is rather a part,
of domestic law dealing with disputes that arise from
private transactions between individuals or companies
and corporations from one country vis-a-vis their
counterparts in another country.

2. International Morality or Ethics. Principles which

govern relations of States from the standpoint of
conscience, morality, justice, and humanity.

3. International Comitu. Rules of politeness/courtesy

observed by States in their relations with other States.
4. International Diplomacy. Objects of international
policy and the conduct of foreign affairs.
5. International Administrative Law. Body of laws
which regulate the relations and activities of national
and international agencies with respect to their
material and intellectual interests which have received
international recognition.

E. International Law as True Law.

1. The Austinian Dilemma. John Austin (1 Qth century
positivist) States that laws are commands of a sovereign
which receive the habitual obedience of the members
of an independent political society. International law,
according to Austin, does not follow this precept.
International law, furthermore, lacks an effective
enforcement mechanism.
2. Command Theoru. Similar to the Austinian Dilemma,
the “command theory” States that laws are commands
of the sovereign authority and are backed by sanction.
Those who subscribe to this theory therefore see
international law as merely a “code of rules of conduct
of moral force” and is simply “positive international
morality”.
3. International law as law. Although it may not
comply with John Austin’s concept of law, i.e., enforced
by sovereign political authority, nonetheless it is
still true law. This is because despite the prevailing
 1. CiENICRAl. PRINCIIMJSS 5

belief that international law does not comply with the

requirements of sovereign issuance, compulsion, and
penalty, it still has such mechanisms for enforcement
such as self-help, force, collective action, and resort to
the UN.
4. Amendment and adjudication. Amendments (rules
of change) are needed by legal systems. International
law, unlike legislation, has rules based on consent
(treaties and customs). Thus, the focus here is on
self-interest rather than common good. Notably,
adjudication is also with consent.
5. Application, enforcement, and compliance. The
absence of a central lawmaking authority and the
debilitating jurisdictional defects weaken the expecta­
tion of compliance in comparison with the situation in
the domestic plane. Enforcement is therefore decen­
tralized, unlike that of municipal law, and can be done
either through peaceful measures or otherwise. These
considerations are, however, balanced by the risk of
political/economic retaliation and other sanctions,
such as adverse public opinion, retorsions, reprisals,
the UN machinery, and the conviction that obedience
will redound to the public good.
6. Enforcement v. Enforceabilitu. Actual enforcement
is irrelevant to the binding quality of international
law, as enforcement is not what is meant by the
term law. What is material is that international law
is “enforceable” even though it lacks a police force or
compulsory court.

Relationship with Municipal Law.

1. Horizontal v. Vertical. International Law is
“horizontal” by nature whereas domestic or municipal
law is “vertical”. This means that in international law,
all States are more or less on equal footing and are
generally unable to compel each other to act, whereas
under municipal law, a hierarchy exists whereby
those on top can give commands to those lower in the
system.
2. Monist v. Dualist. To monists, there is no substantial
distinction between international law and municipal
 OUTLINE INTRODUCTION TO PUBLIC
INTERNATIONAL LAW

law. But to dualists, the distinctions lie in that ML is

issued by a political superior for observance by those
under its authority, while IL is not imposed but adopted
by States as a common rule of action; ML consists of
enactments of the lawmaking authority, while IL is
derived from such sources as international customs,
conventions or general principles of law; ML regulates
relations of individuals among themselves, while IL
applies to relations between States and international
persons; violations of ML are redressed through local
judicial and administrative processes, while in IL, they
are resolved through State-to-State transactions; and
breaches of ML entail individual responsibility, while
in IL there is collective responsibility. The Monist
theory has been criticized due to the fact that States,
in practice, do not follow this theory and instead follow
international law only when it pleases them.
3. Written in the Law. States that have written
constitutions usually indicate the manner in which
international law is treated in domestic courts:
Federal Republic of Germany (Basic Law, Article 15
- “The general rules of international law shall form
part of federal law. They shall take precedence over
the law and create rights and duties directly for the
inhabitants of the Federal territory”); Article 15 of the
Russian Constitution makes reference to “generally
recognized principles and norms of international law
and international treaties”; The 1996 Constitution of
the Republic of South Africa: “Customary international
law is the law in the Republic unless it is inconsistent
with the Constitution or an Act of Parliament.” (Note
that this generally covers only customs and principles
but not treaties, since the latter usually still needs
transformation.]
4. The Prism of State Practice. The application of
international law in the municipal system is better
understood through the prism of State practice. For
example, in the UK and the US, domestic legislation
or judgments trump customary international law;
while in Malaysia, customary law is already deemed
incorporated in their jurisdiction.
 I. cTWfcRAI. I'KiM 111 7

The Theory of Coordination. This Dix lnnr States

'li.it .ilitu-ui'.h rimiirstit l.iw .mil ininimtioniil law me
■in two si-p,ir.itc plant's, they may nevertheless affect
each other with regard to obligations. However, it is
argued by Kitzmuurice that since the two systems lie
on different fields, then interaction should not bring
them into contliri with each other since they operate
in two different spheres, with each being supreme
in its mm field. |Also see: H. Thirlwuv. The Unv and
f'-e. edun.- of the International Court of Justice. 2013)
Incorporation y. Transformation.
i Incorporation. The doctrine of incorporation is
expressed in Sec. 2. Art. II. Philippine Constitu­
tion. as follows: “The Philippines renounces war
as an instrument of national policy, adopts the
acnerallu accepted principles of international law
os part of the law of the land, and adheres to the
policy of peace, equality, justice, freedom, cooper­
ation and amity with all nations”. (Underscoring
supplied) See: Kuroda vs. Jalandoni, 83 Phil. 171
(although the Philippines was not a signatory to
the Hague and Geneva Conventions, internation­
al jurisprudence is automatically incorporated in
Philippine law, thus making war crimes punish­
able in the Philippines); Lo Ching vs. Archbishop
of Manila, 81 Phil. 601; Borovsky vs. Commission­
er of Immigration, G.R. No. L-4362 (1951) (where
prolonged detention of a Stateless alien pending
deportation was deemed illegal, citing the Univer­
sal Declaration of Human Rights which is incor­
porated in Philippine law).
b. Transformation. The doctrine of transformation
requires the enactment by the legislative body of
such international law principles as are sought
to be part of municipal law. See: Laguna Lake
Development Authority vs. Court of Appeals, 231
SCRA 292 (where it was declared that Sec. 6, Art.
II, Philippine Constitution, which reads: “The State
shall protect and advance the right of the people
to a balanced and healthful ecology in accord with
the rhythm and harmony of nature”, was taken
8 OUTLINE INTRODUCTION TO PUBLIC
INTERNATIONAL I .AW

from the Universal Declaration of Human Rights

and the Alma Conference Declaration of 1978
recognizing health as a fundamental human right.
Thus, the authority of LLDA to issue a cease and
desist order to prevent the pollution of Marilao
River was upheld on the basis of the principle of
necessary implication.
c. Caution. Internationally speaking, the fact that
a country follows the incorporation doctrine
for customary international law does not
automatically mean that the same follows for
conventional international law or treaties (e.g.,
United Kingdom). Likewise, some States make a
distinction between treaties which they deem are
self-executing from those they deem are not (e.g.,
United States). However, the Philippines does not
seem to make such distinctions in employing
the incorporation doctrine, the only qualification
being that in the case of treaties the same must
be in conformity with the Constitution. (Art. VIII,
Sec. 5[2][a]; Secretary of Justice vs. Judge Lantion,
G.R. No. 139465, January 18, 2000)
7. Conflict Between International Law and Municipal
Law.
a. On the domestic sphere, with a local court
deciding:
i. If the conflict is with the Constitution:
uphold the Constitution. [See Sec. 5(2)(a),
Art. VIII, Philippine Constitution, which pro­
vides that the Supreme Court has the power
to declare a treaty or executive agreement
unconstitutional.] In Secretary of Justice vs.
Judge Lantion, G.R. No. 139465, January 18,
2000, it was held that in States where the
Constitution is the highest law of the land,
such as the Republic of the Philippines, both
statutes and treaties may be invalidated if
they are in conflict with the Constitution.
ii. If the conflict is with a statute: The doc­
trine of incorporation, as applied in most
 I liKNKKAI. I'UINI'ICUtll

countries, decrees I tint i u|i:m of mlerri.-itionol

law arc given c(|ual slmiding with, hut ore not,
supci'ior to, nalional legislative enactment.::.
A treaty may repeal a statute, and a stat­
ute may repeal a treuty; thus, the principle
of lex posterior derogat priori, which favors
that which comes last in time will usually be
upheld by the municipal tribunal. |See also
Ichong vs. Hernandez, 101 Phil. 115, where
it was held that the Retail Trade National­
ization Law prevails over the Treaty of Amity
with China and the Universal Declaration of
Human Rights, because the law was passed
in the exercise of the police power of the
State, and police power cannot be bargained
away through the medium of a treaty or a
contract.]
b. On the international sphere, with an interna­
tional tribunal deciding:
i. Superiority. International law is superior
to municipal law, because international law
provides the standard by which to determine
the legality of a State’s conduct. (See:
Alabama Claims Arbitration Case 1872 [John
Bassett Moore, History and Digest of the
International Arbitrations to which the United
States Has Been a Party, 1898], where it was
decided that the UK must take care that its
municipal law conform with its international
obligations; see Polish Nationals in Danzig
Case 1932 [225 C.T.S. 188], where the PCIJ
ruled that a State cannot adduce as against
another State its own domestic laws with a
view to evading obligations incumbent upon
it under international law; UN Headquarters
Case 1988 [I.C.J. Reports 1988, p. 12],
where the ICJ affirmed that international
law prevails over municipal law).
ii. Application of Vienna Convention on
the Law of Treaties IVCLTI. International
law does not entirely ignore municipal
10 OUTl.INK INTROinicri'HJN TO I'llllUi:
INTISKNATIONAI, 1,AW

law, (lie latter being used as evidence

either of custom or general principle') of
law. However, following Article 27 of the
VCLT, which States that “a party may not
invoke the provision of its internal law a->
justification for its failure to perform a
treaty”, municipal law (or a gap within it)
cannot be used by a State as an excuse for
non-compliance with an obligation under
international law. (See: Free Zones of Upper
Savoy Case 1932 [PCIJ Series A/B No. 46],
where the PCIJ ruled that France could not
rely on its domestic law to override its treaty
obligations; Alabama Claims Arbitration
Case 1872; Polish Nationals in Danzig Case
1932; LaGrand Case 2001. [(2001) ICJ Rep
466, where the ICJ ruled that the US had
violated its treaty obligations when it failed
to inform an alien arrested locally of his
rights under international law.]

G. Sources of International Law.

1. In the domestic sphere, the constitution, legislative
enactments, and case law (stare decisis) constitute
such sources. On the international plane, it is a bit
complicated because there is no body likened to a
national legislature, no fundamental law, and the
doctrine of precedents is not applicable.
2. Material and Formal Sources. Material sources are
distinguished from formal sources insofar as it is the
material sources from which the substance of the law
is derived, while it is the formal sources that become
the basis of the validity and force of law. An example
of this can be seen in the case of custom: while custom
itself is a formal source of law, the State practice that
was taking place even before such practice crystallized
into custom can be considered as the material source.
3. Given the wide range of possible sources of interna­
tional law, the most authoritative enumeration is
found in Article 38, Statute of the International Court of
Justice, which provides that the Court, whose function
 I. UKNKRAl. I'KINCIIM.KS II

is to decide in accordance with International Law such

disputes as are submitted to it, shall apply:

As Primary Sources:

a. International Treaties and Conventions, whether

general or particular, establishing rules expressly
recognized by the contesting States.
i. Treaties may codify, crystallize, or create
obligations. Codification is done where the
treaty merely compiles existing obligations
to facilitate simplicity, as in the case of the
1982 UNCLOS. Crystallization is done to
formalize as an obligation existing State
practice, as in the case of the 1958 Geneva
Continental Shelf Convention. Creation is
done where the treaty itself is the first time
wherein such obligation was created between
the parties, as is usually the case in bilateral
trade agreements.
ii. Treaties, just like domestic law, are
governed by the rules on Lex Posterior and
Lex Specialis. Lex posterior provides that a
later treaty overrides a prior treaty in case of
incompatibility, while lex specialis provides
that a more specific treaty should be followed
if in conflict with a more general treaty.
iii. Treaties may be bilateral or multilateral,
depending on how many parties are involved.
Multilateral treaties are usually general in
nature and establish common principles of
law, while bilateral treaties are usually for
the regulation of particular conduct such as
trade.
iv. Law between the parties. Regardless of how
many States are involved, it must always be
remembered that a treaty becomes the law
between the parties who gave their consent
thereto. Although there are instances
where States who do not give their consent
are bound by treaties, such as situations
wherein a treaty is merely meant to codify
 12 OU'I UNK INTKOOIJCTIOH JO HJJlUO
INTliKNATIONAJ, IAW

existing practices regarding /'as coverts,

generaJ rule still stands that States are os!/
bound to the treaties they gave their censer.-;
to, and only to the extent by which they
allowed themselves to be bound.

b. International Customs, as evidence of a genera:

practice accepted as binding law through
persistent usage over a long period of time, e//.p
angary, exemption of unarmed fishing vessel
from capture. It is necessary, however, that the
custom be: [i] prevailing practice by a number of
States; [ii] repeated over a considerable period of
time; and [iii] attended by opinio juris or a sense
of legal obligation.
i. Definition. In the Asylum Case [(1950J, ICJ
Rep 266], the ICJ held that custom is defined
as “constant and uniform usage, accepted
as law”.
ii. Scope. Custom may be general or regional.
In either case, the elements of custom must
both exist and be proven. See: Asylum Case
1950, where the Court ruled that although
a regional custom can exist, the same must
still be proven; Right of Passages Case 1960
[(I960) ICJ Rep 6], where the ICJ again
affirmed the possibility of a regional custom
but denied Portugal’s claim since it failed to
prove that such a custom existed.
iii. Elements. The two main elements of custom
which must concur are State practice
and opinio juris. As sub-elements of State
practice, the practice in question must
be demonstrated to have been general,
uniform, and over a long enough period of
time to enable it to crystallize (duration).
See: Nicaragua Case [(1986) ICJ Rep 14],
where the ICJ discussed custom and its
elements extensively; North Sea Continental
Shelf Case 1969 [(1969) ICJ Rep 3], where
the sub-elements of State practice were
discussed extensively.]

/
 1. I'.KNKK'Al, 1'KlNl’IPUCS 13

iv. Evidence of Custom. According to Brownlie,

custom can be proven using a wide range
of instruments including diplomatic corre­
spondence, press releases, opinion of offi­
cial legal advisers, executive decisions and
practices, judicial decisions, legislation, and
resolutions of the United Nations General
Assembly, among others. Although a large
number of States performing the same con­
duct may create a presumption that there
is in fact a custom in existence, such a pre­
sumption is not conclusive and may be re­
butted with a wide range of evidence. (See:
J. Crawford, Brownlie’s Principles of Public
International Law, 2012)
a) The Baxter Paradox. Under the Baxter
Paradox, named after Professor R.R.
Baxter, it is believed that as more and
more States subscribe to a treaty, the
understanding of the contemporary
status of customary international law
will decrease because the actions of
States are already expressly guided by
a real obligation under the treaty and
not a mere sense of opinio juris. Thus,
Baxter posits that if a treaty becomes
so popular as to only have a handful of
States not party to it, those handful of
States would be the only ones capable of
generating custom, but simultaneously
their task appears to be Herculean since
custom requires a wider and much
more general application or observance
of conduct.
v. State Practice. State practice consists not
only of what States say or do but also of what
they fail to say or do. As mentioned earlier,
State practice has three sub-elements which
are generality, uniformity, and duration.
(See: North Sea Continental Shelf Case 1969)
a) Uniformity. According to the Nicaragua
Case 1986, although uniformity is
OUTLINU INTRODUCTION TO PUBLIC
INTICRNATIONAL LAW

required, absolute uniformity by all

States is not. As such, substantial
uniformity of a given practice among
States is enough. Following the North
Sea Continental Shelf Case 1969, actual
uniformity is not required provided that
the practices of the States are extensive
and virtually uniform with one another.
(Also see: Anglo-Norwegian Fisheries
Case 1951 [(1951) ICJ Rep 116], where
the ICJ niled that some degree of
uniformity amongst State practices is
essential before a custom can exist).
b) Generality. Given that a custom can
be either general or regional, the
practice under consideration must be
widespread among the States that are
particularly involved in the relevant
activity. Thus, universality of a given
practice is not a requirement. (See:
Asylum Case 1950)
c) Duration. Although the length of time
required for a practice to crystallize
into State practice varies from situation
to situation, the ICJ in the North Sea
Continental Shelf Case (1969) stated
that the time period must be long
enough to show that other requirements
are satisfied.
d) Instant Custom. Although scholars
have been arguing for the existence of
an instant custom, especially in the
aftermath of the 9/11 terrorist attacks,
the ruling of the ICJ in North Sea
Continental Shelf Case 1969 should still
be controlling insofar as it prescribes
that a length of time, regardless of how
short, within which the other elements
of uniformity and generality are shown
to exist, must still take place before
a practice can crystallize into State
practice.
 1. lilCNHRAl. PKINCIIM.KS 15

vi. Opinio Juris. According to the Lotus Case

([1927] PC1J Series A, No. 10), opinio juris
constitutes a State’s belief that it is acting
due to a legal obligation. The fact that a State
is acting in accordance with opinio juris is
never presumed and must always be proven.
vii. Legal Conundrum. Should opinio juris
precede State practice or should it already
be present when the practice is performed?
Although this question has not yet been
formally resolved, it must nevertheless be
understood that custom can only arise once
both elements concur.
viii. Persistent Objector. The mere existence of a
custom may not necessarily be enough to
bind States, particularly those who qualify
as persistent objectors. Following the Anglo-
Norwegian Fisheries Case 1951, a persistent
objector is one who objects to the practice
from the early stages of the practice and
maintains the said objection consistently.
ix. Exception to Persistent Objector. As an
exception, mere objection at the beginning
is not enough for a State to claim it is a
persistent objector: a State cannot claim to
be a persistent objector when the practice
being objected to has already attained the
status of jus cogens.
x. Relationship between Treaty and Custom.
Generally, if there is a conflict between a
treaty and a custom, a treaty is superior.
The exception to this rule is if the custom
involved is jus cogens. Also, a treaty may
create custom, provided, it was intended to
be norm-creating, and a State may be bound
by both a treaty and a custom at the same
time insofar as they do not conflict with each
other. (See: North Sea Continental Shelf Case
1969, where the ICJ examined whether the
equidistant principle contained in the 1958
 OUTLINE INTRODUCTION TO PUBLIC
16
INTERNATIONAL LAW

Geneva Convention on the Continental Shelf

had already become custom; Nicaragua
Case 1986, where the ICJ ruled that the
mere fact that a custom is enshrined in a
treaty does not prohibit the Court from
entertaining a claim seeking relief based on
violation of custom; Fisheries Jurisdiction
Case [(1974) ICJ Rep 3], where the ICJ ruled
that Iceland was still bound by a treaty it
had earlier signed despite the emergence of
newer practices among States provided the
obligation in the treaty had not radically
changed.)
c. General Principles of Law. These are rules
derived mainly from natural law, observed and
recognized by civilized nations, e.g., res judicata,
prescription, pacta sunt servanda and estoppel.
See Agustin vs. Edu, where the doctrine of pacta
sunt servanda was applied by the Court relative
to the validity of the administrative rule requiring
the use of early warning device, as part of the
Vienna Convention on Road Signs and Signals.
i. Definition. General principles of law are
propositions of law that are so fundamental
that they are found in almost all legal
systems. Notably, general principles of law
are a separate source of law from both treaty
and custom.
ii. Purpose. General principles of law were
introduced as a source of law in order to
combat the problem of non-liquet (or the
absence of any source of law or obligation
to point to in order to resolve the conflict).
As such, even absent a particular treaty or
custom, the Court may not renege on its
duty to decide a case since it is allowed to
rule on the matter on the basis of general
principles of law.
iii. Scope. Although it is unclear what the formal
scope of general principles of law is, the
decisions of the ICJ seem to lean towards

;
 1. CRN KRAI. PKINOiri.RS 17

general principles of law encompassing both

private law and public law concepts. See:
Advisory Opinion on the Effect of Awards of
Compensation Made by the United Nations
Administrative Tribunal [(1954) 1CJ Rep 47|,
where the 1CJ acknowledged the principle
of res judicata; Temple of Preah Vihear Case
[(1962) 1CJ Rep 6], where the ICJ used the
principle of estoppel in finding Thailand to
have recognized Cambodia’s sovereignty
over disputed territory; Corfu Channel Case
[(1949) ICJ Rep 4], where circumstantial
evidence, in the absence of direct evidence,
was used to ascertain whether or not Albania
was liable for the sinking of British ships;
Status of Eastern Carelia Case [(1923) PCIJ
Series B no. 5], where the PCIJ ruled that
it could not rule on the matter because it
did not have jurisdiction over Russia who
was the respondent; Chorzow Factory Case
[(1927) PCIJ Series A, No. 9], where the
PCIJ used the principle that taking requires
compensation to be valid when it decided a
case involving damages; The Separate Opinion
of Justice McNair in the Advisory Opinion on
the International Status of the South West
Africa 1950 [(1950) ICJ Rep 128], where the
general principle of trusts was discussed in
relation to the advisory opinion; LIAMCO v.
Libya 1981 (20 ILM 1), where the general
principle of equity was used in determining
the amount of damages.
[Note: To these may be added the
principle of ex aequo et bono (what is good
and just), provided that the parties to the
dispute agree thereto, as provided in Art.
38(1), Statute of the International Court of
Justice. This must not, however, be confused
with the principle of equity since equity is
a part of the judicial function and can be
applied at any time, whereas the principle
of ex aequo et bono, which considers only
18 OUTLINE INTRODUCTION TO PUBLIC
INTERNATIONAL LAW

socio-economic and political considerations,

may only be applied when asked for by the
parties.]

As Secondary Sources:

a. Judicial Decisions, generally of international

tribunals, the most authoritative being the
International Court of Justice. They are not really
sources, but “subsidiary means” for finding what
the law is, and whether a norm has been accepted
as a rule of international law. The decision of a
national court may be used depending upon the
prestige and perceived impartiality of the domestic
court, not being in conflict with the decisions of
international tribunals, and its admissibility in
the forum where it is cited.
i. Binding Effect. Following Article 59 of the
ICJ Statute, the decisions of the ICJ have no
binding effect except as to the State parties
and only in respect of that particular case.
ii. Judicial Legislation. Despite res judicata
being generally inapplicable with regard to
decisions by international tribunals, a rule
which the tribunal adopts, when the same
is not based on any existing rule at the time
of the decision, results - by such decision of
the tribunal - a new, provisional rule being
followed. (See: Anglo-Norwegian Fisheries
Case 1951, where the ICJ decision fixing
Norway’s baselines were based more on
historic and economic considerations rather
than a formal source of international law;
Reparations Case [(1949) ICJ Rep 1740],
where the ICJ created the guidelines to be
used by the United Nations in presenting
international claims against both members
and non-members of the UN, in order to
seek reparations for damages sustained by
the UN or any of its agents.)
iii. Judicial Legislation and Custom. When judi­
cial legislation occurs, and its basis is the
 I. GENERAL PRINCIPLES 19

practice of States, does this mean that such

a practice is now custom? Likewise, can a
judicial decision which has all the elements
of custom be considered customary? Al­
though these questions appear to be purely
academic, they could have an effect on the
future understanding of the sources of inter­
national law.
iv. Judicial Consistency. Despite the general
inapplicability of res judicata with regard to
decisions of international tribunals, these
tribunals nevertheless follow the rule on
judicial consistency. This rule provides that,
as much as possible, rulings should not
deviate from already settled matters except
when necessary.
v. Local Jurisprudence. Accordingto the German
Interests in Polish Upper Silesia Case [(1926)
PCIJ Series A no. 7], the PCIJ remarked
that from the viewpoint of international law,
municipal law, including legal decisions of
domestic courts, are merely facts from which
can be inferred the will of the State and its
activities.
vi. Judicial Courtesy. In the Advisory Opinion
on the Interpretation of Peace Treaties with
Bulgaria, Hungary, and Romania [(1950) ICJ
Rep 221], the ICJ clarified that when it is
requested for an opinion regarding a matter
that is subject of a pending case, if the
result will materially affect the decision in
the pending case, the ICJ will not hesitate to
decline the request for an opinion.
Writings of Publicists, which must be fair and
unbiased representation of international law by
acknowledged authorities in the field.
i. Publicists are a particular class of learned
scholars whose writings are regarded as
being persuasive sources of international
law. Although they are merely considered
20 OUTLINE INTRODUCTION TO PUBLIC
INTERNATIONAL LAW

as subsidiary sources of international

law, they play a primary role in helping
practitioners and non-practitioners alike
in better understanding various concepts
of international law. Examples of these
publicists are Grotius, Vattel, Oppenheim,
Rousseau, and Lauterpacht.
ii. Caution. Despite their role in the under­
standing and development of international
law, such writings are not immune from
losing their value over time. As such, while
some writings are of great importance today,
unless they are updated, they could be sig­
nificantly less important in the future.
4. Interpretation of Article 38. Although the provision is
silent on the question of whether the three primary
sources have the same hierarchic value, by practice,
treaties take precedence over customs, and customs
over general principles of law, except:
a. The Principle of Jus Cogens. Jus cogens is defined
as that part of customary international law
which has the status of a peremptory (absolute,
uncompromising, certain) norm of international
law. A peremptory norm is a norm accepted
and recognized by the international community
of States as a rule, from which no derogation is
permitted and which can be modified only by a
subsequent norm having the same character.
Examples are slave trade, piracy, and terrorism.
See Hilao v. Estate of Marcos (25 F.3d 1467),
where it was held that official torture of prisoners /
dissenters was a violation of the principle of jus
cogens.

i. Following Article 53 of the VCLT, a treaty is

void if it comes into conflict with a peremptory
norm of international law. Furthermore,
Article 64 of the VCLT provides that if a new
peremptory norm emerges, all treaties in
conflict with it are rendered void. As such, it
becomes clear that States cannot evade their
 I OKNKK.M. I'KINl'll'l KS 1

jus cx);/t'iis obligations bv (.Touting a tmily or

pointing to one already in existence.
5. Other Sources of Lute. Although not explicitly
mentioned under Article 38, other possible sources of
law are resolutions of international organizations, soft
laws, and equity. In the Nicaragua Case 1986, the 1CJ,
despite much criticism, examined, and appreciated a
resolution by the UN General Assembly as a possible
evidence of obligation.
a. Soft laws. Soft laws are mere guidelines for
conduct. With regard to the Philippines, these are
not considered as binding. (See: Pharmaceutical
and Health Care Association of the Philippines
vs. Health Secretary Francisco T. Duque [G.R. No.
173034], where the Supreme Court ruled that
although soft laws can influence the behaviour of
States, they are still considered as non-binding
norms, principles, and practices)
b. Lex Mercatoria. Although not strictly a law which
is imposed by a sovereign, lex mercatoria, which
has evolved through the practice of businessmen,
is still hugely a part of international commercial
law.
 II. SUBJECTS OF INTERNATIONAL LAW

A. Distinction between Subject and Object of International

Law.
1. Subjects and Objects of International Law. A subject
is an entity that has rights and responsibilities
under international law; it can be a proper party in
transactions involving the application of the law
of nations among members of the international
community. An object is a person or thing in respect
of which rights are held and obligations assumed by
the subject; it is not directly governed by the rules
of international law; its rights are received, and
its responsibilities imposed, indirectly through the
instrumentality of an international agency.
a. Purpose of Distinction. The separation between
those clothed with personality, and those
that are not, is meant to denote which entities
are ultimately given legal personality in the
international arena. Such a conferment of legal
personality is an acknowledgment of that entity
being party to several rights and duties that may
be found in the international sphere (i.e., suing
before the ICJ, entering into treaties and other
similar instruments).
b. Traditional View. Traditionally, scholars have
taken the view that only States should be
considered as the proper subjects of international
law. This traditional view has its justifications in
the belief that when it comes to the international
sphere, it is relationship between States alone that
can create a fundamental change in the system,
regardless of whether that change is positive or
negative. Furthermore, some scholars adhering to

22

/
 II. SUBJECTS OF INTERNATIONAL LAW 23

the traditional view often point out that States are

the ultimate representatives of all other entities
including individuals, whole territories, and
entire communities. [See: J. Crawford, Brownlie’s
Principles of International Law, 2012]
2. The subjects of international law include States, colo­
nies, and dependencies, mandates and trust territo­
ries, the Holy See (Vatican City), the United Nations,
belligerent-communities, international administra­
tive bodies, and, to a certain extent, individuals. This
much broader view is based on contemporary defini­
tions.

B. States.
1. Defined. A State is a group of people, living together in
a fixed territory, organized for political ends under an
independent government, and capable of entering into
international relations with other States.
2. Elements. As Stated in Article 1 of the 1933 Montevideo
Convention on the Rights and Duties of States, the
elements of Statehood are:
a. Permanent Population. A group of individuals,
of both sexes, living together as a community.
They must be sufficient in number to maintain
and perpetuate themselves. A casual gathering
(stranded), or a society of pirates would not
constitute a State. Note that a degree of
permanence is required before this element can
be found present.
b. Defined Territory. The fixed portion on the earth’s
surface occupied by the inhabitants. It may be as
large as China, or as small as Monaco (1/2 sq.
mile) or San Marino (38 sq. miles).
i. Substantial Compliance. In the Deutsche
Continental Gas-Gesellschaft Case 1929
[5 AD 11], it was provided that in order to
satisfy the requirement of territory, it is
enough that the State possesses the land
it claims as its territory, even if the formal
24 OUTLINE INTRODUCTION TO PUIJLIC
INTERNATIONAL LAW

boundaries of such territory have yet to be

settled.
c. Government. Must be organized, exercising control
over and capable of maintaining law and order
with the territory. It can be held internationally
responsible for the acts of the inhabitants. The
identity of the State is not affected by changes in
government.
d. Capacity to Enter into Relations with Other States
(wrongly attributed bv others as “independence”
or “sovereignty”!. This includes freedom from out­
side control in the conduct of its foreign (and in­
ternal) affairs. Generally, only independent States
can enter into free relations with other indepen­
dent States. There are, however, exceptions; see
the Philippines becoming a party to the UN Char­
ter in 1945, and Hong Kong, Macau, and Taiwan
being members of the WTO.
i. Non Self-Governing Territories. These include
protectorates, trusteeship territories, prin­
cipalities, and various colonies which have
a restricted amount of control over their re­
lation with other States. By technical defi­
nition, though possessed of international
personality, they are not be considered as
States since their affairs to a certain but
substantial extent are being controlled by
another entity.
a) Historically, a good example of a non
self-governing territory purporting to
be a State is Manchukuo. Now part
of modern day China, Manchukuo -
formerly Manchuria - was conquered
by the Japanese in 1931 and recognized
as a province in 1932. Being called the
new independent State of Manchukuo,
the League of Nations sent the Lytton
Commission to observe proceedings in
the new State. The Lytton Report spoke
of the State of Manchukuo being a mere
 II. SUBJECTS OF INTERNATIONAL LAW 25

puppet of the Japanese, and this is why

the League of Nations never recognized
Manchukuo as a State. [See: V.N.
Khanna, International Relations, 5th
Edition, 2016.]
b) Exception. If a non self-governing terri­
tory, through a valid exercise of external
self-determination, is able to seize con­
trol of its affairs and is now free to chart
its own future, that territory, which was
formerly non self-governing, may possi­
bly be considered a State. Likewise, if a
colony is granted real independence by
its colonizer, it may possibly be consid­
ered a State. [Contrast: the case of the
Philippines, which is now a State, being
granted independence by the USA, with
the case of Manchukuo, which is not a
State, being granted independence by
Japan.]
Achieving Statehood. Although the elements of
Statehood as found in Article 1 of the 1933 Montevideo
Convention on the Rights and Duties of States
has already been widely accepted as customary
international law, a question worth pondering on is
whether Statehood is achieved automatically upon
acquisition and concurrence of the elements of
Statehood, or whether a further act still needs to be
done after concurrence of the elements. For those who
are of the School of Thought that a further act needs
to be done before Statehood is achieved, a further
question would be what that act is, and who would
be in charge of deciding whether such act has been
satisfactorily completed.
a. Characteristics of Statehood. Although the legal
consequences of Statehood are still being explored
and developed even in current times, there are
nevertheless characteristics of Statehood which
can no longer be denied. Among these are the
ability to enter into treaties and other agreements
with other States, exclusive competence with
 du'iijni', i: n v < ■ \ < > public
IIn IvBIM'l \(J.'IAL I./■:>/

icipcci to purely domestic affairs, freedom from

the jurisdiction ol inlernationaJ tribunaJs such
as llio IC.J unless they give their consent, and
I hour eiical equality, among others. Furthermore,
insofar as the international sphere is concerned,
there appears to be a presumption in favor of
Stales that unless a certain matter is outlawed,
the same is allowed. [See: J. Crawford, The
Creation of States in International Law, 2006;
Lotus Case 1 027, where the PCIJ Stated that in
the international sphere, all acts not expressly
forbidden under international law are allowed.)
b. Statehood and Governments. Under international
law, a government is merely an element of a
State. As such, regardless of how many times a
government changes, such changes generally have
no effect on Statehood. [See: Tinoco Arbitration
([1923] 1 RIAA 269), where there was a discussion
on the interplay between changes in government
and Statehood; Republic vs. Sandiganbayan
(2003) [G.R. No. 104768], where the Supreme
Court discussed the continuity of the State and
its commitments under international law even
during times where the constitution was not in
effect.)
4. Other Suggested Elements of a State Are:
a. Civilization.
b. Recognition: The act by which a State acknowl­
edges the existence of another State, a govern­
ment or a belligerent community, and indicates
its willingness to deal with the entity as such un­
der international law. [Note: The importance of
recognition has been substituted to a large extent
by the act of admission to the UN. UN members
must treat the new member as an equal partner
in all matters relating to the application of the
UN Charter. However, recall that the UN General
Assembly refused recognition to Transkei (South
Africa), and the UN Security Council called upon
all States not to recognize Southern Rhodesia.]
It. SUBJECTS OF INTERNATIONAL LAW 27

Theories on Recognition:
a) Constitutive (Minority viewl: Recognition
is the act which constitutes the entity
into an international person. Under
this view, recognition is compulsory
and legal; it may be compelled once the
elements of a State are established.
b) Declarative (Majority viewl: Under the
majority view, recognition merely affirms
an existing fact, like the possession by
the State of the essential elements. It is
discretionary and political.
ii. Basic Rules on Recognition. It is a political act
and mainly a matter of policy on the part of
each State; it is discretionary on the part of
the recognizing authority; and it is exercised
by the political (executive) department of
the State. Thus, the legality and wisdom of
recognition is not subject to judicial review.
iii. Requirements for Recognition of Government:
The government is stable and effective, with
no substantial resistance to its authority;
the government must show willingness
and ability to discharge its international
obligations; and the government must enjoy
popular consent or approval of the people.
a) Tobar/ Wilson Doctrine: precludes rec­
ognition of any government established
by revolutionary means until constitu­
tional reorganization by free election of
representatives.
b) Stimson Doctrine: No recognition of a
government established through exter­
nal aggression.
c) Estrada Doctrine: Since recognition
has been construed as approval (and
non-recognition, disapproval) of a gov­
ernment established through a politi­
cal upheaval, a State may not issue a
28 OUTLINE INTRODUCTION TO PUBLIC
INTERNATIONAL LAW

declaration giving recognition to such

government, but merely accept what­
ever government is in effective control
without raising the issue of recognition.
Dealing or not dealing with the govern­
ment is not a judgment on the legitima­
cy of the said government. [Note: Recall
the recognition of the People’s Republic
of China, based on the one China poli­
cy.]
iv. Kinds of Recognition. May be express or
implied: may also be:
a) De facto: Extended by the recognizing
State, which believes that some of
the requirements for recognition are
absent. The recognition is generally
provisional and limited to certain
juridical relations; it does not bring
about full diplomatic intercourse and
does not give title to assets of the State
held/situated abroad.
b) De jure: Extended to a government ful­
filling the requirements for recognition. y
When there is no specific indication,
recognition is generally considered as
de jure. The recognition is relatively
permanent; brings about full diplomat­
ic intercourse and observance of diplo­
matic immunities; and confers title to
assets abroad. [See: Lawyers League for
a Better Philippines vs. Corazon Aquino,
G.R. No. 73748, May 22, 1986\
v. Effects of Recognition: Diplomatic relations;
right to sue in the courts of the recognizing
State. [See: Banco National de Cuba v.
Sabbatino, 376 U.S. 398, where unfriendly
relations or the lack of reciprocity was held
immaterial!; immunity from jurisdiction;
entitlement to property within the recognizing
State; retroactive validation of the acts of
ii. suiui'-ci:; oi> \j-:u

the recognized State/goverrirnem, v-ch

acts of State, arid thus, w/ereign imm ^r ity
covers past, present and future acts YOet/en
vs. Centrul Leather Co.. 24 L rj.S. 297j.\

vi. Recognition of Belligerency; CrjnrJitwns. The

usual conditions for the recognition of the
status of belligerency are: organized civil
government having control and super/i-
sion over the armed struggle; serious and
widespread struggle with the outcome un­
certain; occupation of a substantial portion
of the national territory; and willingness on
the part of the rebels to observe the rules/
customs of war. [Note: (1) Absence of any of
the foregoing conditions will result merely
in insurgency which is rarely recognized.
(2) Recognition may be either express or im­
plied; the proclamation by the parent State
of a blockade of a port held by the rebels is
implied recognition of belligerency; so is the
proclamation of neutrality by a third State.]
vii. Effects of Recognition of Belligerency. Res­
ponsibility for acts of rebels resulting in
injury to nationals of the recognizing State
shall be shifted to the rebel government; the
legitimate government recognizing the reb­
els shall observe the laws of war in conduct­
ing hostilities; third States recognizing the
belligerency shall maintain neutrality; and
recognition is only provisional (for the dura­
tion of the armed struggle) and only for the
purpose of the hostilities.
Willingness to Observe International Law. This
suggested element exists due to the point of view
of certain writers like John Dugard who are of
the opinion that the international community is
empowered to refrain from recognizing the legal
personality of States and other entities purporting
to be States when the same have achieved their
Statehood through means that would be in conflict

UNIVERSITY of the cordilleras

____ LIBRARIES ___________
 OUTLINE INTRODUCTION TO PUBLIC
INTERNATIONAL LAW

with jus cogens. [See: J. Dugard, International

Law, 1994]
i. An example of this can be seen in the case
of Transkei, Ciskei, Bophuthatswana, and
Venda. These South African homelands
claimed they were States in the late 70’s
and were recognized only by each other
and by South Africa despite having all the
elements Stated under Article 1 of the 1933
Montevideo Convention. The reason for this
non-recognition can be strongly linked to the
UN Security Council, which essentially called
upon States to refrain from recognizing the
said homelands and effectively acted to deny
these entities personality under international
law on account of their extensive violation of
human rights. [See: David Raic, Statehood
and the Law of Self-Determination, 2002]
ii. Effect of Unilateral Declaration of Statehood.
In the case of the Apartheid Regime of
Southern Rhodesia, they attempted to
achieve Statehood by unilaterally declaring
themselves to be a new and independent State
in the 1960’s. This unilateral declaration
was condemned by the UN Security Council
through a Resolution which imposed a
legal duty on States not to recognize the
illegal regime. Thus, it appears that a State
may not circumvent the requirements of
Statehood by unilaterally declaring itself a
State. [See: D. Raic, Statehood and the Law
of Self-Determination, 2002]
Others Possible Elements. Crawford, a leading
expert on Statehood and the creation of States,
adds to the list by including the elements of
permanence, willingness to observe international
law, and existence of legal order within the State.
Interestingly, in some cases, degree of civilization
has also been thought of as an element of
Statehood. (See: J. Crawford, The Creation of
States in International Law, 2006]
 II. SllKIWI'S ()!• IN’IKkNATIONAI. I.AW !l

CreationoJStates. Hy revolution, unification, :k-ies'iion,

assertion of independence, agreement, mill ailninmenl
of civilization.

Extinction of States. Uy extinction or emigration an

masse of its population, loss of territory, overthrow of
government resulting in anarchy.
Principle of State Continuity. The State continues
as a juristic being notwithstanding changes in its
circumstances, provided only that such changes do not
result in the loss of any of its essential elements. See
Sapphire Case where, after Emperor Louis Napoleon
filed a damage suit on behalf of France in an American
court, he was deposed. Nonetheless, the action was
not abated and could continue upon recognition of the
duly authorized representative of the new government
of France.
a. Succession of States. May be universal or partial.
Consequences are: political laws are abrogated
[People vs. Perfecto, 43 Phil. 887] while municipal
laws remain in force [Vilas vs. City of Manila, 229
U.S. 345]; treaties are discontinued, except those
dealing with local rights and duties, such as
those establishing easements and servitudes; all
rights of the predecessor State are inherited, but
successor State can assume and reject liabilities
at its discretion. [Note: In Haile Selassie v. Cable
Wireless, it was ruled that a conquered State has
no personality in international law].
b. Succession of Governments. The integrity of the
State is not affected; the State continues as the
same international person except that its lawful
representative is changed. The consequences
are: all rights of the predecessor government
are inherited by the successor; and where the
new government was organized by virtue of
constitutional reform duly ratified in a plebiscite,
all obligations of the predecessor are likewise
assumed. However, where the new government is
established through violence, the new government
may lawfully reject purely personal or political
 OUTLINE INTRODUCTION TO PUBLIC
INTERNATIONAL LAW

obligations of the predecessor but not those

obligations contracted by it in the ordinary course
of official business. [See: Tinoco Arbitration 1923;
Republic vs. Sandiganbayan (2003) (G.R. No.
104768)\
Classes of States.
a. Independent. Has freedom to direct and control
foreign relations without restraint from other
States. May be:
i. Simple. Single central government, with
power over internal and external affairs.
ii. Composite. Two or more sovereign States
joined together to constitute one interna­
tional person, which may be:
a) Real Union: two or more States are
merged under a unified authority so
that they form a single international
person through which they act as one
entity. The States retain their separate
identities, but their respective interna­
tional personalities are extinguished
and blended in the new international
person. E.g., the former United Arab
Republic, with Egypt, and Syria.
b) Federal Union: combination of two or
more States which, upon merger, cease
to be States, resulting in the creation
of a new State with full international
personality to represent them in their
external relations as well as a certain
degree of power over their domestic
affairs and their inhabitants. Authority
over internal affairs: divided between
federal authorities and the member-
States; authority over external affairs:
handled solely by federal authorities.
b. Dependent: an entity which, although theoretically
a State, does not have full freedom in the direction
of its external affairs, such as a protectorate (which
 II. SUBJECTS OF INTERNATIONAL LAW 33

is established at the request of the weaker State

for the protection by a strong power, e.g., Panama,
Andorra, Monaco) or a suzerainty (which is the
result of a concession from a State to a former
colony that is allowed to be independent subject
to the retention by the former sovereign of certain
powers over the external affairs of the latter, e.g.,
Bulgaria and Rumania, both suzerainties of the
Sultan of Turkey by virtue of the Treaty of Berlin
of 1878).
c. Neutralized: whose 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
in self-defense) or to enter into an international
obligation as would indirectly involved it in war,
e.g., Switzerland, Austria.

The Vatican City and the Holy See.

1. The Holy See ostensibly has all the constituent ele­
ments of Statehood (people: less than 1,000 individu­
als; territory: 108.7 acres; government with the Pope
as head; and independence by virtue of the Lateran
Treaty of February 11, 1929, which constituted the
Vatican as a territory under the sovereignty of the Holy
See). It has all the rights of a State, including diplo­
matic intercourse, immunity from foreign jurisdiction,
etc.
2. See, however, Holy See vs. del Rosario, 238 SCRA 524,
where the Supreme Court distinguished Vatican City
from the Holy See. The Holy See is an international
person with which the Philippines had diplomatic ties
since 1957.

Colonies and Dependencies. A colony is a dependent po­

litical community consisting of a number of citizens of the
same country who have migrated therefrom to inhabit an­
other country, but remain subject to the mother State. A
dependency is a territory distinct from the country in which
the supreme sovereign power resides, but belongs rightfully
to it, and subject to the laws and regulations which the
sovereign may prescribe. [Note: Theoretically, they belong
A4 orn ink ini'kopuoi'ion ro I’um 10
INI'KKNAI'H'NAI I AW

to the parent State and, thus, an- without any pcinonnl

ity in the international eotnmunily. However, on oeea:iioan,
colonies have been allowed to participate in their own riglil
in certain international undertakings, t\p., the Philippines
was admitted as a signatory to the UN (.’hnrlcr.|

E. Territories under International Control or Supervision.

These are non self-governing territories which have been
placed under international supervision or control to insure
their political, economic, social and educational advance­
ment. An example are mandates, which were former territo­
rial possessions of the States defeated in World War I and
placed under the control of the League of Nations. Many of
these mandates became trust territories placed under the
Trusteeship Council of the United Nations.
1. A condominium is a territory jointly administered by
two States.

F. The United Nations.

1. Historical Development of the United Nations.
a. There was the League of Nations, formed in the
aftermath of WWI by the will of the victorious
States, embodied in the 1919 Treaty of Versailles.
It was widely considered a failure in attaining its
primary objective of maintaining international
peace and order, especially after the outbreak of
World War II.
b. The London Declaration, June 12, 1941.
c. The Atlantic Charter, August 14, 1941.
d. Declaration by United Nations, January 1, 1942.
e. Moscow Declaration, October 30, 1943.
f. Dumbarton Oaks Proposal, Washington, August
to October 1944.
g. Yalta Conference, Crimea, February 11, 1945.
h. San Francisco Conference, April 25 to June
28, 1945, at which delegates from 50 nations
unanimously approved the United Nations
Charter which came into force on October 24,
1945.
 11. KUIUKCTK OK IIMTItKNATIONAI, i,AW 35

i. On April 8, 1993, the UN General Assembly

welcomed Macedonia, the 184th member, into
the community of nations.

The UN Charter. This is the closest to a constitution

that basically governs the relations of international
persons. Technically, it is a treaty, a contract which
the parties must respect under the doctrine of pacta
sunt servanda, although it actually applies even to
non-member States, at least in so far as “may be
necessary for the maintenance of international peace
and security”. It consists of a Preamble, 19 chapters,
111 articles, and the concluding provisions. Annexed
to it is the Statute of the International Court of Justice.
a. Amendment, [i] By a vote of 2/3 of the members of
the General Assembly and ratified in accordance
with their respective constitutional processes
by 2/3 of the members of the United Nations,
including all the permanent members of the
Security Council; [ii] A general conference, called
by a majority vote of the General Assembly and
any nine members of the Security Council,
may propose amendments by a 2/3 vote of the
conference, and shall take effect when ratified
by 2/3 of the members of the UN, including the
permanent members of the Security Council.
b. Purposes. The principal objectives of the UN
are the prevention of war, the maintenance of
international peace and security, the development
of friendly relations among the members of the
international community, the attainment of
international cooperation, and harmony in the
actions of nations.
3. Membership.
a. Classes: Based on the manner of admission,
members may be original or elective.
b. Qualifications: member must be a State, peace
loving, accept the obligations under the Charter,
and be able and willing to carry out these
obligations.
 Oim.INK IN I'lv'ODIICTION l < > I'Ulil.K.
INTKK'NATU JNAI. I.AW

o. Admission: decision of 2/3 of thov; pre/'v

and voting in the General Av-,ernhily y:/*:.
recommendation of at least nine (including at.
permanent) members of the Security Council.
d. Suspension: the same vote required a-- :r.
admission. When suspended, a member cannot
participate in meetings of the General Assembly;
cannot be elected to or continue to serve ir.
the Security Council, the Economic and Social
Council, the Trusteeship Council; but nationals
may continue serving in the Secretariat and the
International Court of Justice, although a member
is still subject to discharge its obligations under
the Charter. To lift the suspension, a qualified
majority vote of the Security Council is needed.
e. Expulsion: 2/3 vote of those present and voting
in the General Assembly, upon recommendation
of a qualified majority of the Security Council, on
grounds of persistently violating the principles
contained in the Charter.
f. Withdrawal: It was intended that no provision on
withdrawal be included in the Charter, although
there is actually no compulsion for continued
membership if the member feels constrained to
withdraw due to exceptional circumstances. On
March 1, 1965, Indonesia tried to withdraw in
protest over Malaysia’s election as member of
the Security Council, but it appeared later that
it was merely a cessation of cooperation, not
withdrawal — and the UN allowed resumption of
full membership of Indonesia on September 28,
1966.
4. Organs.
a. General Assembly. Consists of all the members
of the organization, each of which is entitled to
send not more than 5 representatives and 5 alter­
nates. Each member has only one vote. Its func­
tions may be classified into: [i] Deliberative, like
initiating studies and making recommendations
for the development of international law, etc.; [ii]
 II Sl'Ull-VI'S OKINI'IK'IMAI'IONAl LAW XI

Si./vm'isom/, suoli us i viviviii)', mid considering

.innu.il and special reports from oilier organs of
the UN; |iu| Mmimeiu/, ns the consideration mid
approval of the budget of the organization, the
apportionment of expenses, etc.; |iv| lilective, as
in the election of the non permanent members of
the Security Council, all members of the EcoSoc,
etc.: and |v| Constituent, such as the admission
of members and the amendment of the Char­
ter. Its regular session is held once a year and it
may hold special sessions called by the Secretary
General at the request of the Security Council or
a majority of the members. On important ques­
tions, e.g., peace, security, membership, elec­
tions, trusteeship system, budget, the vote of 2/3
of the members present and voting is required; on
other questions, a simple majority is sufficient.
To classify a question as important, the vote re­
quired is a simple majority.
i. Note that the General Assembly is not a leg­
islative body, for it can only make recom­
mendations and not binding rules.
b. Security Council. It is the key organ in the
maintenance of international peace and security.
It is composed of five permanent members,
namely: China, France, Russia, the United
Kingdom and the United States; and 10 elective
members, elected for a two-year term by the
General Assembly, five from African and Asian
States, two from Latin American States, two from
Western European and other States, and one
from Eastern European States. For the elective
members, no immediate re-election is allowed.
The Security Council is expected to function
continuously, and sessions may be called at any
time; thus, the representative of the member
States should always be available.
i. Functions. The Security Council has prima­
ry responsibility to maintain international
peace and security; investigate disputes and
call disputants to settle their differences
OLTIINE INTRODUCTION TO PUBLIC
INTERNATIONAL LAW

through peaceful means; recommend ineth-

ods of adjustment of disputes; determine
the existence of threats to peace, breach of
peace, acts of aggression, and make appro­
priate recommendations; and to undertake
preventive and enforcement actions.

a) Preventive action shall consist of pro­

visional measures to prevent a conflict
from worsening and may involve the
deployment of peacekeeping and/ or ob­
server missions. These missions shall
be established by the Security Council,
directed by the Secretary General, with
the consent of the host government;
provided that the military observers
shall be unarmed, while peace keeping
forces may be armed with light weap­
ons although they are not authorized
to use force except in self-defense, and
the operations must not interfere with
the internal affairs of the host country.
Other measures may also be undertak­
en against erring members, such as in­
terruption of economic relations, com­
munications or diplomatic relations,
e.g., the ban, except for humanitarian
reasons, on airflights for Libya because
of the bombing of PanAm Flight 103.

1) Note that these peacekeeping mis­

sions are to take place only upon
authorization by the Security
Council, and strictly with consent
of the host government. Likewise,
these missions are meant to be
neutral and defensive rather than
aggressive, and the personnel
deployed to such missions gener­
ally go on a voluntary basis.
b) Enforcement action may consist in the
deployment of air, sea, and land forces,
or in the institution of a blockade.
Kiifoimiicnl mlions in the post hud
been usually stymied by the veto power
of the permanent members of the
Security Council.
1) Domestic jurisdiction clause. The
Security Council muy take such
steps ns are necessary for the
settlement of disputes, including
preventive or enforcement action,
as mentioned above. The only
limitation is that the dispute must
be international, not domestic,
in character. Otherwise, such
action would violate the principle
that the UN shall not intervene in
any matter within the domestic
jurisdiction of any State.
2) Recommendatory Actions. The Se­
curity Council, through its reso­
lutions, may make recommen­
dations. An example is Security
Council Resolution 777, where the
Security Council recommend­
ed that the Federal Republic of
Yugoslavia apply for UN member­
ship because it could not automat­
ically inherit the UN membership
of the former Socialist Federal Re­
public of Yugoslavia.

3) Binding Effect. Following Article 48

of the UN Charter, the decisions
of the Security Council for the
maintenance of international
peace and security is required to be
taken by those States determined
by the Security Council. Such
rhetoric suggests that with regard
to such decisions, they appear to
have a binding effect on the States
required to act.
40 OUTLINE INTRODUCTION TO PUBLIC
INTERNATIONAL U\W

4) Voting.

a) The Yalta Formula. Each

member of the Security
Council shall have one vote,
but distinction is made be­
tween the permanent mem­
bers and the non-permanent
members in the resolution of
substantive questions. Pro­
cedural matters are to be de­
cided by the affirmative vote
of any nine or more members.
Non-procedural matters are
decided by the concurrence
of at least nine members,
including all the permanent
members. The determina­
tion of whether a matter is
procedural or substantive is
non-procedural. This allows
for the so-called “double veto”
by a permanent member of
the Council. However, the
abstention or absence of any
permanent member is not
considered a “veto”.
5) Review by the ICJ. Article 34 of
the ICJ Statute provides that only
States may be parties before the
ICJ. As such, it appears that the
decisions of the Security Council,
which is an entity separate and
distinct from the States them­
selves, cannot be brought before
the ICJ on account of their resolu­
tions.
c) Economic and Social Council. Com
posed of 54 members elected by t
General Assembly for a three-ye
term. It shall exert efforts towar
higher standards of living, conditio
U SUtGl'VrS OK INl'KKNATlONAl, l AW 41

of economic and social progress and

development, solutions of international
economic, social, health and related
problems, universal respect for and
observance of human rights and
fundamental freedoms. Decisions are
reached by a simple majority vote.

d) Trusteeship Council. Charged with the

duty of assisting the Security Council
and the General Assembly in the ad­
ministration of the International Trust­
eeship System. It is composed of: [i]
members of the UN administering trust
territories; [ii] permanent members of
the Security Council not administer­
ing trust territories; and [iii] as many
other members elected by the General
Assembly as may be necessary to en­
sure that the total number of members
is equally divided between those mem­
bers of the UN which administer trust
territories and those which do not. Note
that the last trust territory'. Micronesia,
has since then become an independent
State.
e) Secretariat. The chief administrative
organ of the UN; headed by the Secretary
General who is chosen by the General
Assembly upon recommendation of
the Security Council. The Secretary
General is the highest representative
of the UN, and is authorized to act in
its behalf. He also acts as Secretary' in
all meetings of the General Assembly,
the Security Council, the Economic atrd
Social Council, and the Trusteeship
Council. The Secretary General and Iris
staff are international civil servants,
and they cannot receive instructions
from any government or source outside
the UN. The Secretary General enjoys
42 OUTLINE INTRODUCTION TO PUBLIC
INTERNATIONAL LAW

the right of political initiative, and

may bring to the attention of the UN
Security Council any matter which, in
his opinion, may threaten international
peace and security.

f) International Court of Justice. It is the

principal judicial organ of the UN; com­
posed of 15 members who are elected
for a term of nine years by absolute ma­
jority vote in the General Assembly and
the Security Council, in separate elec­
tions, no two of whom must be nation­
als of the same State. They must be of
high moral character and possess the
qualifications required in their respec­
tive countries for appointment to their
highest judicial offices. Under Article
31 of the ICJ Statute, judges are not
disqualified from hearing a case simply
because they are nationals of any party
involved.

i. Background. The ICJ was created

in 1945 and replaced the Perma­
nent Court of International Jus­
tice. Article 92 of the UN Charter
describes the ICJ as principal or­
gan of the UN.

ii. Parties. Under Article 34 of the ICJ

Statute, only States may be par­
ties to a case before the ICJ.

iii. Provisional Measures. Under Ar­

ticle 31 of the ICJ Statute, the ICJ
can grant provisional measures.
iv. Third Party Intervention. Under
Article 62 of the ICJ Statute,
the ICJ, upon a request from an
interested State, may allow such a
State to intervene in a case before
it.
 II. SUBJECTS OF INTERNATIONAL LAW 43

v. No Stare Decisis. Under Article 59

of the ICJ Statute, the decision
of the Court has no binding force
except between the parties and in
respect of that particular case.
vi. Jurisdiction. The Court decides
contentious cases, and renders
advisory opinions. Only States,
including non-members of the
UN, may be parties in conten­
tious cases. The jurisdiction of the
Court is based on the consent of
the parties in accordance with the
“optional jurisdiction clause”, and
the Court may decide on interpre­
tation of treaties, any question of
international law, the existence of
facts constituting breach of inter­
national obligations, and the na­
ture or extent of the reparation to
be made for the breach of an inter­
national obligation. Advisory opin­
ions may be given upon request of
the General Assembly, or the Se­
curity Council, or the other organs
of the UN when authorized by the
General Assembly.
a) Challenging Jurisdiction.
There is nothing prohibiting
parties from challenging the
jurisdiction of the ICJ over
any dispute.
Belligerent Communities. Liberation movements, or
insurgent communities, which have attained a belligerent
status under international law, particularly international
humanitarian law, may validly enter into legal relations
with States and conclude valid internationally recognized
agreements.
International Administrative Bodies. Certain adminis­
trative bodies, created by agreement among States, may be
vested with international personality, provided that they
44 OUTLINE INTRODUCTION TO PUBLIC
INTERNATIONAL LAW

are non-political and are autonomous and not subject to

control by any State, e.g., ILO, FAO, WHO.
1. International Law Commission. This was established
by the UN General Assembly in 1947 to promote
the codification and progressive development of
international law. One of the functions of the
Commission is to produce Draft Articles which may
codify certain customary international law or aid in
its development. Among these, of great significance,
is the Draft Articles on State Responsibility, which are
often considered as embodying generally customary
international law on the matter.
2. Reparations Case [1949]. In this case, the legal
personality of international organizations was affirmed,
but it was qualified as being limited. In discussing why
international organizations have legal personality, the
fact that these organizations were created by States
themselves was seen as a material fact. This is because
when States create an international organization,
it follows that they would have given such a created
entity the power to act in the international sphere.
However, this legal personality that has been delegated
to the international organizations by the States that
created them is limited and may only be used to
achieve the purposes for which they were created or
for acts inherent thereto.
a. Ongoing Debate. Is the legal personality of the
international organizations created by States a
personality that exists only to the eyes of those
States that took part in its creation? Or does the
existence of these created organizations make
them unavoidably and necessarily recognized by
the rest of the international community as well?
Although the Reparations Case 1949 makes it
clear that these created organizations have their
own legal personality under international law to
the extent which is necessary for them to carry out
their objectives, the general rule that recognition
is an executive function of a State gives life to the
viewpoint that if a State wishes, it may refuse to
recognize the personality of an organization that
it played no part in creating.
 II. SUBJECTS OF INTERNATIONAL LAW 45

Rules of Engagement. Given the uncertainty

that lies in the relationship between States and
international organizations, the best source of
the rules of such a relationship are the various
treaties which have been created by States on the
subject. In general, the Vienna Convention on the
Law of T reaties between States and International
Organizations is one of the most fundamental
treaties that tries to put order to the relationship
between States and international organizations. A
more specific treaty would be those which created
the organizations themselves because these
treaties would normally include guidelines which
could help understand the relationship between
the creating States and the created organization.
Domestic Application. With regard to the person­
ality of international organizations in the domes­
tic sphere, the rules for such are often already
contained in the treaty which created them. For
example, Articles 104 and 105 of the UN Charter
specifically provides for the legal capacity of the
UN in the territory of its members, and for the
enjoyment of the UN of privileges and immunities
necessary for the fulfillment of its purpose while
in the territory of its members.
Distinguishing Factors. In order to distinguish an
international organization with legal personality
in the international sphere from an ordinary
organization without such personality, a look
at the powers granted to the organization in its
charter is instructive. For example, if the charter
of an international organization allows it to bring
claims before an international tribunal, this is
material because only those with legal personality
in the international sphere may bring claims
before an international tribunal. If, on the other
hand, the organization may only bring claims
before a domestic court, this is a good indicator
that perhaps that organization does not have
legal personality in the international sphere.