Table of Contents

General Principles………………………………………………………………………… 2

Sources of International Law………………………………………………………….. 4

States as Subjects of International Law……………………………………………. 8

Other Subjects of International Law………………………………………………… 9

Fundamental Rights of States…………………………………………………………11

Territory of States……………………………………………………………………….. 13

Jurisdiction…………………………………………………………………………………18

Treaties……………………………………………………………………………………….21

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CHAPTER I. GENERAL PRINCIPLES

Definition of International Law

Traditional- It is a body of rules and principles of action which are binding

upon civilized states in their relations to one another. States are the sole actors
in this definition, and, in the past, public international law dealt almost
exclusively with regulating the relations between states in diplomatic matters
and in the conduct of war.

Modern- It is the law which deals “with the conduct of states and of
international organizations and with their relations inter se, as well as with
some of their relations with persons, whether natural or juridical.

Scope of International Law

The expansion of the scope of international law is nothing short of

revolutionary. Beyond the primary concern for the preservation of peace, it now
covers all the interests of contemporary international and even domestic life.

The topics that are covered by international law today include the regulation of
space expeditions, the division of the ocean floor, the protection of human
rights, the management of the international financial system, and the
regulation of the environment.

Is International Law a Law?

In the view of John Austin, a renowned legal philosopher, law consists of

commands originating from a sovereign and backed up by threats of sanction if
disobeyed. In this view, international law is not law because it does not come
from a command of a sovereign.

Moreover, there exists no international legislative body. There is, of course, the
General Assembly of the United Nations; but its resolutions are generally not
binding on anybody. There is no international executive. The Security Council
was intended to be that entity, but it is often effectively hamstrung by the veto
power. Neither is there a central authority that can make judgments binding on
states. The International Court of Justice can bind states only when states
consent to be bound.

However, there are those who argue International law is law because it is seen
as such by states and other subjects of international law.

Theoretical Basis of International Law

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  Naturalist- posits that law is derived by reason from the nature of man
International law is said to be an application of natural reason to the
nature of the state-person.
 Positivist- the binding force of international law is derived from the
agreement of the states to be bound by it.
 Eclectic or Grotian- 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.

Public vs Private International Law

Public international law governs the relationships between and among states
and also, their relations with international organizations and individual
persons. On the other hand, private international law is really 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.

Functions of International Law

 To establish peace and order in the community of nations and to prevent

the use of force in all international relations
 To promote world friendship by levelling the barriers
 To encourage and ensure international cooperation in the solution of
certain common problems of a political, economic, cultural or
humanitarian character
 To provide for the orderly management of the relations of states on the
basis of the substantive rules they have agreed to observe as members of
the international community

International law Distinguished from Municipal Law

 Municipal Law (ML) is issued by a political superior for observance by

those under its authority whereas International Law (IL) is not imposed
upon but simply adopted by states as a common rule of action among
themselves.
 ML consists mainly of enactments from the lawmaking authority of each
state whereas IL is derived not from any particular legislation but from
such sources as international customs, international conventions and
the general principles of law.

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  ML regulates the relations of individuals among themselves or with their
own states whereas IL applies to the relations inter se of states and other
international persons.
 Violations of ML are redressed through local administrative and judicial
processes whereas questions of IL are resolved through state-to-state
transactions ranging from peaceful methods like negotiations and
arbitration to the hostile arbitrament of force of reprisals and even war.
 Breaches of ML entail only individual responsibility whereas
responsibility for infractions of IL are usually collective.

Incorporation vs Transformation

▪ Incorporation- this doctrine is expressed in Sec. 2, Art. II of the Philippine

Constitution, as follows: “The Philippines renounces war as an instrument of
national policy, adopts 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”.

▪ Transformation- this doctrine requires the enactment by the legislative body

of such international law principles as are sought to be part of municipal law.

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 (Sec. of

Justice vs Judge Lantion, G.R. No. 139465, January 18, 2000)

ii. If the conflict is with a statute: apply the principle of lex posterior
derogat priori, which favors that which comes last in time will usually
be upheld by the municipal tribunal.

b. On the international sphere, with an international tribunal deciding:

International law is superior to municipal law because international law

provides the standard by which to determine the legality of the states
conduct.

CHAPTER II. SOURCES OF INTERNATIONAL LAW

Classification of the Sources of International Law

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A. Formal and Material Sources

i. Formal sources can refer to the various processes by which rules

come into existence. (treaty making, legislation, etc.).
ii. Material sources are concerned with the substance and content of the
obligation. (treaty, state practice, etc.)

B. Primary and Secondary Sources

i. Primary or direct sources are treaties or conventions, customs, and

the general principles of law.
ii. Secondary or indirect sources are the decisions of courts and the
writings of publicists.

Primary Sources:

a. International Treaties and Conventions

 Determine the rights and duties of states just as individual rights are
determined by contracts.
 Their binding force comes from the voluntary decision of sovereign states
to obligate themselves to a mode of behavior.
 Treaties are governed by the rules on Lex Posterior (a later treaty
overrides a prior treaty in case of incompatibility) and Lex Specialis (a
more specific treaty should be followed in case of conflict)
 Treaties may be bilateral or multilateral, depending on how many parties
are involved.
 While treaties are generally binding only on the parties, the number of
the contracting parties and the generality of the acceptance of the rules
created by the treaty can have the effect of creating a universal law in
much the same way that general practice suffices to create customary
law.
 All treaties must be observed by the parties under the principle of pacta
sunt servanda.
 The general rule is that the treaty, to be considered a direct source of
international law, must be concluded by a sizeable number of states and
thus reflect the will or at least the consensus of the family of nations.

b. International Customs

A general and consistent practice of states followed by them from a sense

of legal obligation.

Two basic elements:

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 1. Material factor - how states behave
2. Psychological or subjective factor – why they behave the way they do

 The Material Factor: practice of states or usus has three elements:

duration, consistency, and generality of practice of states

 Opinio juris- The belief that a certain form of behavior is obligatory

that makes practice an international rule. Without it, practice is not
law.

 Would dissenting states be bound by custom?

Yes, unless they had consistently objected to it while the custom was
merely in the process of formation (Anglo-Norwegian Fisheries case,1951
ICJ Reports).

 Is “instant custom” possible?

It is suggested that “instant custom” is possible. The united action of

forces that arose in a matter of months after the attack of the World
Trade Center in New York City supportive of the action taken by US
against Osama Bin Laden may have given birth to instant customary law
classifying the attack as an armed attack under Article 51 of the UN
Charter justifying collective self-defense. Though the subject of this
collective self-defense was not an attack from a state but from a non-
state organization.

 Conflict between treaty and custom

Generally, a treaty is superior. The exception to this rule is if the custom

involved is jus cogens.

*Jus Cogens- part of customary international law which has the status of
a peremptory norm. A peremptory norm is a norm accepted and
recognized by the international community of States as a rule, from
which no derogation is allowed.

c. General Principles of Law

These are propositions of law that are so fundamental that they are
found in almost all legal systems. Examples are the principles of
estoppel, prescription, res judicata, and pacta sunt servanda.

Secondary Sources:

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 a. Judicial Decisions

 They are not really sources, but subsidiary means for finding what the
law is, and whether a norm has been accepted as rule of international
law.

 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.

 Though ICJ’s decision does not constitute stare decisis, these

decisions are not only regarded as highly persuasive in international
law circles; they have also contributed to the formulation of principles
that have become international law.

b. Writings of Publicists

 Publicists are a particular class of learned scholars whose writings are

regarded as persuasive sources of international law. Examples of
these publicists are Grotius, Vattel, Oppenheim, Rousseau, and
Lauterpacht.

 To qualify as a subsidiary means for the determination of rules of law,

the writings of publicists, must also be a fair and unbiased
representation of international law, and by an acknowledged authority
in the field.

Other Supplementary Evidence:

 UN resolutions - merely recommendatory but if they are supported by all

states, they are an expression of opinio juris communis.

 Soft law

- They are international agreements not concluded as treaties and

therefore not covered by the Vienna Convention on the Law of
Treaties.
- Soft law can also come from administrative rules which guide the
practice of states in relation to international organization. These
are mostly administrative procedures that are carried out with
varying degrees of consistency and uniformity that may eventually
ripen into customary law or become formalized later on in treaties.

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CHAPTER III. STATES AS SUBJECTS OF INTERNATIONAL LAW

Distinction between Subject and Object of International Law

A subject of international law is an entity that has rights and responsibilities

under the law. It has an international personality in that it can directly assert
rights and be held directly responsible under the law of nations. It has the
faculty of motivation which means that it can be a proper party in transactions
involving the application of the law of nations among members of the
international community. On the other hand, objects of international law are
those who indirectly have rights under or are beneficiaries of international law
through subjects of international law. It is not directly governed by
international law. Its rights are received, and its responsibilities imposed
indirectly, through the instrumentality of an intermediate agency.

Not all subjects of international law enjoy the same rights and obligations.
States remain the predominant actors, but other actors have come to be
recognized.

What is a State?

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.

Essential Elements of a State

As stated in Article 1 of the 1933 Montevideo Convention on the Rights and

Duties of States, the elements of Statehood are:

1. People as an element of the state refers to the human person

living within its territory; should be of both sexes and sufficient
in number to maintain and perpetuate themselves.

2. Territory is the fixed portion of the surface of the earth in which

the people of the state reside. A defined territory is necessary for
jurisdictional reasons and in order to provide for the needs of
the inhabitants. It should be big enough to be self- sufficient
and small enough to be easily administered and defended.

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 3. Government is the agency through which the will of the state is
formulated, expressed and realized. It is necessary in
international law because the state must have an entity to
represent it in its relations with other states. The form of
government does not matter so long as it is able to maintain
order within the realm and comply with its responsibilities
under the law of nations.

4. Sovereignty is the external aspect or manifestation of

sovereignty or the power of the state to direct its own external
affairs without interference or dictation from other states. The
degree of its freedom in this regard determines the status of the
state as an international person.

Classes of States

1. Independent- has freedom to direct and control foreign relations

without restraint from other states.

2. Dependent- an entity which, although theoretically a state, does

not have full freedom in the direction of its external affairs.

3. Neutralized- one 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.

What is the Principle of State Continuity?

From the moment of its creation, the state continues as a juristic being
notwithstanding changes in its circumstances, provided only that they do
not result in loss of any of its essential elements (Sapphire Case, 11
Wall.164)

CHAPTER IV. OTHER SUBJECTS OF INTERNATIONAL LAW

a. International Organizations

An international organization is an organization that is set up by treaty

among two or more states. It is different from non-governmental
organizations (NGO) which are set up by private persons.

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 An international organization has international personality but its
powers and privileges are limited by the constituent instrument that created
it. It also enjoys immunity which is based on the need for effective exercise
of its functions and is derived from the treaty creating it. Examples are the
United Nations and ASEAN.

b. 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.

 Conditions for Recognition of Belligerency

1. Organized civil government having control and supervision over

the armed struggle.

2. Serious and widespread struggle with the outcome uncertain.

3. Occupation of a substantial portion of the national territory

4. Willingness on the part of the rebels to observe the

rules/customs of war.

Note: Absence of any of the foregoing conditions will result merely in

insurgency which is rarely recognized.

c. International Administrative Bodies

Certain administrative bodies, created among States, may be vested with

international personality, provided that they are non-political and are
autonomous and not subject to control by any State, e.g, ILO, FAO, WHO.

d. Individuals

Traditionally, individuals have been considered merely as objects,

however, there has been a growing tendency to admit that individuals may
have some degree of international personality, albeit limited. This can be
seen especially in the field of international human rights and with regard to
cases of trade and investment disputes.

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 Some treaties, e.g., the Treaty of Versailles, confers individuals the right
to bring suit against States before national or international tribunals.

CHAPTER V. FUNDAMENTAL RIGHTS OF STATES

a. Existence and Self-Preservation

 By far the most basic and important right.

 Criteria for valid self-defense as seen in part 3, Chapter II of the 2001

Draft Articles of State Responsibility:

1. Necessity of self-defense, which is based on how sudden and

overwhelming the conduct being defended against was.
2. Reasonableness and proportionality of the means used.

 Anticipatory Self-Defense- Although scholars have claimed that States

can resort to anticipatory self-defense, cases decided by the ICJ appear
to limit the application of the doctrine of self-defense to reactions
towards armed attacks.

 Collective Self Defense- Article 51 of the UN Charter expressly recognizes

the right of collective self-defense when an armed attack occurs and until
the UN Security Council has taken necessary measures to maintain
international peace and security.

 The use of armed force by a State against the sovereignty, territorial

integrity or political independent of another State, or in other any
manner inconsistent with the UN Charter is considered an aggression
and is a crime against international peace which will give rise to
international responsibility.

b. Right to Independence

 It is the capacity of the state to provide for its own well-being and
development free from the domination of other states, providing it does
not impair or violate their legitimate rights. As a right, it means the right
to exercise within its portion of the globe, to the exclusion of others, the
functions of a state. However, restrictions upon a state’s liberty arising
either from customary law or from treaties do not deprive a state of
independence.

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  Flowing from this right are the rights of jurisdiction over its territory and
permanent population, the right to self-defense and the right of legation.

 Two Kinds of Independence:

1. Internal- refers to the supreme authority or jurisdiction of the

state to control all persons or property within its territorial
domain.
2. External- refers to the supreme power of the state to determine
the relations it desires to maintain with other states, without
interference on the part of any third state.

 Two main categories of the various levels of claims to Self-Determination:

1. The establishment of new states – that is the claim by a group

within an established state to break away and form a new
entity.
2. It can simply be claims to be free from external coercion, or the
claim to overthrow effective rulers and establish a new
government, that is, the assertion of the right of revolution; or
the claim of people within an entity to be given autonomy.

c. Right to Equality

 Equality refers to equality of legal rights irrespective of the size or power

of the state.

 Doctrine of equality of states- It means that all states are equal in

international law despite of their obvious factual inequalities as to size,
population, wealth, strength, or degree of civilization.

 Consequences that follow from the doctrine:

1. When a question arises, which has to be settled by consent, every

state has a right to a vote and to one vote only.

2. The vote of the weakest state has as much weight as the vote of the
most powerful.

3. No state can claim jurisdiction over another; and

4. The courts of one state do not as a rule question the validity of the
official acts of another state in so far as those acts purport to take
effect within the latter’s jurisdiction.

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 d. State Immunity

 Doctrine of State Immunity- This is based on the principles of par in

parem habet non imperium and non-intervention. State enjoys immunity
from the exercise of jurisdiction by another state, unless it has given its
consent, waived its immunity, or voluntarily submitted to the jurisdiction
of the court concerned. Neither may its public property be attached or
taxed, nor its public vessels be boarded, arrested or sued.

Note: Under Philippines Jurisprudence, the Doctrine of State Immunity

can only be validly invoked where it is ultimately the State, and not the
official being charged, who has to bear the consequences.

CHAPTER VI. TERRITORY OF STATES

What is a territory?

The fixed portion on the surface of the Earth on which the State settles and
over which it has supreme authority.

Having one’s own territory can be seen as proof of sovereignty and interpreted
as an assertion of impendence.

Note: The right of a State to exercise sovereignty over its territory to the
exclusion of other states comes with the corresponding duty to respect the
rights of other States to exercise their sovereignty over their own territory.

National Territory of the Philippines

Section 1, Article 1 of the Philippine Constitution, defines the national territory

as follows, “The national territory comprises the Philippine archipelago, with all
the islands and waters embraced therein, and all other territories over which the
Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and
aerial domains, including its territorial sea, the seabed, the subsoil, the insular
shelves, and other submarine areas. The waters around, between, and
connecting the islands of the archipelago, regardless of their breadth and
dimensions, form part of the internal waters of the Philippines.”

Organic Acts and Issuances Affecting the National Territory

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  Treaty of Paris (cession of the Philippine islands by Spain to United
States)
 Treaty of Washington (Cagayan, Sulu, and Sibuto)
 Treaty between US and Great Britain (Turtle and Mangsee Islands)
 1935 Constitution (Batanes)
 1973 Constitution (territory belonging to the Philippines by historic right
or legal right)
 PD 1596 (Philippines officially laid claim to the Kalayaan Islands by
virtue of occupation and exercise of jurisdiction)

Components of Territory

A. Land/ Terrestrial Domain

1. Acquisition

a. Discovery and occupation

It is an original mode of acquisition by which territory not belonging

to any state, or terra nullius, is placed under the sovereignty of the
discovering state.

The territory need not be uninhabited provided it can be established

that the natives are not sufficiently civilized and can be considered as
possessing not rights of sovereignty but only rights of habitation.

Discovery of terra nullius is not enough to establish sovereignty. It

must be accompanied by effective control as held in the Las Palmas
Case (Permanent Court of Arbitration, 1928).

b. Prescription

Like occupation, it requires effective control. But unlike occupation,

the object of prescription is not terra nullius. Thus, the required
length of effective control is longer than in occupation. Prescription,
might however, be negated by a demonstrated lack of acquiescence by
the prior occupant. (Las Palmas Case)

c. Cession

It occurs when the acquiring sovereign derives its title to a new

territory by the ceding sovereign’s transferring to it the supreme
power over that territory.

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 d. Subjugation
Territory is deemed acquired by subjugation when, having been
previously conquered or occupied in the course of war by the enemy,
it is formally annexed to it at the end of that war. Conquest alone
confers only an inchoate right on the occupying state; it is the formal
act of annexation that completes the acquisition.

e. Accretion and Avulsion

This is sovereignty by operation of nature. Accretion is the gradual

increase of territory by the action of nature while avulsion is a sudden
change resulting for instance from the action of a volcano.

2. Loss

a. Abandonment or dereliction

Territory is lost by dereliction when the state exercising sovereignty

over it physically withdraws from it with the intention of abandoning
it altogether. Two conditions must concur, namely, the act of
withdrawal and the intention to abandon.

b. Cession

It is a method by which territory is transferred from one state to

another by agreement between them. It being essentially consensual,
transfer of title is effected upon the meeting of the minds of the
parties and does not have to bide the actual delivery of the ceded
territory to the acquiring state.

c. Subjugation

Territory is lost through conquest during war.

d. Prescription

It requires long, continued and adverse possession to vest acquisitive

title in the claimant.

e. Erosion
f. Revolution

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 g. Natural causes

Principle of Uti Possidetis Juris

It provides that newly formed sovereign States should have the same
borders as those of the State preceding them.

B. Fluvial and Maritime Domain

1. Internal (National Waters)- all waters on the landward side of the

baselines of the territorial sea.

a. Rivers- may be national, boundary, or international.

i. Thalweg Doctrine- in the absence of an agreement between

riparian States, the boundary line is laid on the middle of the
main navigable channel.
ii. Middle of the bridge doctrine- where there is a bridge over a
boundary river, the boundary line is the middle of the bridge.

b. Bay- it is a well-marked indentation whose penetration is in such

proportion to the width of its mouth as to contain land-locked
waters and constitute more than a mere curvature of the coast.

What are historic bays?

They are those whose waters have always been considered internal by
the international community notwithstanding that their openings are
more than 24 miles in width.

c. Straits
d. Canals

2. External Waters- all waters extending towards the sea from the
baselines. It includes the territorial sea, contiguous zone,
exclusive economic zone, continental shelf, and other maritime
zones.

a. Territorial Sea- It may be described as the belt of waters adjacent

to the coasts of the state, excluding the internal waters in bays and
gulfs, over which the state claims sovereignty and jurisdiction.

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 b. Contiguous Zone- It is the area of water not exceeding 24 nautical
miles from the baseline. It thus extends 12 nautical miles from the
edge of the territorial sea. The coastal state exercises authority
over that area to the extent necessary to prevent infringement of its
customs, fiscal, immigration or sanitation authority over its
territorial waters or territory and to punish such infringement.

c. Exclusive Economic Zone- It is an area extending not more than

200 nautical miles beyond the baseline. The coastal state has
rights over the economic resources of the sea, seabed and subsoil –
but the right does not affect the right of navigation and overflight of
other states.

d. Continental Shelf- Otherwise known as archipelagic or insular

shelf for archipelagos refers to 1.) the seabed and subsoil of the
submarine areas adjacent to the coastal state but outside the
territorial sea, to a depth of two hundred meters or, beyond that
limit, to where the depth allows exploitation, and 2) the seabed and
subsoil of areas adjacent to islands.

C. Aerial Domain

It is the airspace above the terrestrial domain and the maritime and
fluvial domain of the state to an unlimited altitude but not including
outer space.

Every State “has complete and exclusive sovereignty over the airspace
above its territory”. (Paris Convention on Aerial Navigation; and Chicago
Convention on International Civil Aviation)

What is the authority of a State over the airspace above the high
seas?

The airspace above the high seas shall be free from the control or
sovereignty of any state.

Five Air Freedoms

1. Overflight or the privilege to fly across its territory without landing;

2. Non-traffic landing or the privilege to land for non-traffic purposes;
3. Putting down traffic or the privilege to put down passengers, mail
and cargo taken on in the territory of the State whose nationality
the aircraft possesses;

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 4. Picking up traffic or the privilege to take on passengers, mail and
cargo destined for the territory of the State whose nationality the
aircraft possesses; and
5. International traffic or the privilege to take on passengers, mail
and cargo destined for the territory of any other contracting State
and the privilege to put down passengers, mail and cargo coming
from any such territory.

Outer Space

It is the region beyond the earth’s atmosphere and is not subject to the
jurisdiction of any state.

Outer space, including the moon and other celestial bodies, shall be free
for exploration and use by all states without discrimination of any kind,
on a basis of equality and in accordance with international law.

It is not subject to national appropriation by claim of sovereignty, by

means of use or occupation or by any other means.

CHAPTER VII. JURISDICTION

What is Jurisdiction?

The power or authority exercised by a State over land, persons, property,

transactions, and events.

Types of Jurisdiction

1. Prescriptive- ability of the State to define its own laws with respect to
any matter it chooses.
2. Enforcement- ability of the State to enforce the laws it has created.

Bases of Jurisdiction

1. Territorial Principle

The State may exercise jurisdiction only within its territory. While
there is no territorial limit on the exercise of jurisdiction over civil
matter, a State, as a general rule, has criminal jurisdiction only over
offenses committed within its territory except over:

a. Continuing offenses

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 b. Acts prejudicial to the national security or vital interests of the
State
c. Universal Crimes
d. Offenses covered by special agreement (now obsolete)

Subjective vs Objective Territoriality

Subjective territoriality enables a State to take jurisdiction over an act

which began in their territory. Objective territoriality enables a State
to take jurisdiction over an act which ended in its territory.

2. Nationality Principle

The State has jurisdiction over its nationals anywhere in the world.
This applies to civil matters, e.g. Article 15, Civil Code, and also in
taxation. The principle, however, does not apply to criminal offenses.

States are allowed to determine who their nationals are. In the

Philippines, a method known as jus sanguinis is used, wherein a child
becomes a natural-born citizen if his parents are citizens. Other
nations such as the United States use the jus soli method wherein a
child becomes a natural-born citizen if he is born on American
territory.

3. Protective Principle

State has jurisdiction over acts committed abroad which are

prejudicial to its national security, territorial integrity, political
independence, and other vital interests.

What is the Effects Doctrine?

It provides that where the effects of an act are felt within the territory
of a State, the State may take jurisdiction over the matter. This can be
invoked even in situations that do not involve national security and
other vital interests of the States.

4. Principle of Universality

State has jurisdiction over offenses considered as universal crimes

regardless of where committed and who committed them.

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 Universal Crimes- those which threaten the international community
as a whole and are considered criminal offenses in al countries, e.g.,
genocide, piracy, war crimes.

5. Principle of Passive Personality

Under this principle, a state may apply law – particularly criminal law
– to an act committed outside its territory by a person not its national
where the victim of the act was its national.

This principle has not been ordinarily accepted for ordinary torts or
crimes, but it is increasingly accepted as applied to terrorist and other
organized attacks on a state’s nationals by reason of their nationality,
or to assassination of a state’s diplomatic representatives or other
officials.

Three modes of resolving conflict of jurisdiction:

1. The balancing test (Timberlane Lumber Co. vs Bank of America, 549

F2d 597)
2. International comity (Hartford Fire Insurance Co. vs California, 509
US 764,1993)
3. Forum non conveniens (Piper Aircraft Co. vs Reyno, 454 US 235,
1981)

What is the general rule on the jurisdiction of a state within its territory?

The jurisdiction of a state within its territory is complete and absolute.

What are the two categories of exceptions to this rule?

1. Sovereign Immunity

a. Immunity of the head of state

b. Immunity of the State itself

2. Immunity of the representative of states or diplomatic and consular

immunities

Exceptions to the Doctrine of State Immunity

Under the UN Convention on the Jurisdictional Immunities of States and their

Property, the defense of State Immunity is not applicable in the following cases:

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 1. When there is waiver of State immunity (Art. 7);
2. If the State itself has instituted the proceedings (Art. 8);
3. Any counterclaim out of the same legal relationship or facts as the
claim presented by the State (Art. 9);
4. Commercial transactions with private individuals or entities (State
immunity applies to commercial transactions between States) (Art.
10);
5. Death or injury to the person, or damage to or loss of tangible
property, caused by an act or omission which is alleged to be
attributable to the State (Art.12);
6. Right or interest of the State in movable or immovable property
arising by way of succession or donation (Art. 13);
7. Alleged infringement of patent, industrial design, trade name or
business name, trademark, copyright or any other form of intellectual
or industrial property (Art.14);
8. Participation in a company or other collective body, whether
incorporated or unincorporated (Art. 15)
9. Proceeding which relates to the operation of a ship other than a
warship (Art. 16);
10. Proceedings involving the effects of an arbitration agreement (Art.
17)

CHAPTER VIII. TREATIES

What are Treaties?

They represent the most deliberate form of commitment through which

governments cooperate with one another. International agreements are the
generic term used to refer to treaties. In the absence of an international
legislative body, international agreements are a convenient tool through which
states are able to project common expectations. Treaties can assume various
names such as conventions, pacts, covenants, charters, protocols, concordat,
modus vivendi, etc.

The Vienna Convention 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.”

The Vienna Convention applies to international agreements that satisfy the

Convention’s definition, specifically that they be in writing and reflective of the
intention of the parties to be bound and governed by international law.

Are treaties not in written form valid?

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While treaties are generally in written form, there are writers who hold that
even an oral agreement can be binding. Article 3 of the Vienne Convention on
the Law of Treaties provides that the fact that a treaty is unwritten shall not
affect its legal force.

Essential Requisites of a Valid Treaty

1. Treaty-making capacity

All states have full treaty-making capacity, as an attribute of sovereignty,

unless limited by reason of their status or by previous self-imposed
inhibitions.

The UN and its organs, such as the Security Council and the Economic
and Social Council, and international bodies like the WHO, may also
enter into treaties.

2. Authorized representative

It is for municipal law to determine which organ of the state shall be

empowered to enter into treaties in its behalf.

In the Philippines, the President is authorized by the Constitution to

make treaties, subject to the concurrence of two-thirds of all the
members of the Senate. This is in consonance with the general practice
of assigning the treaty-making power to the executive department of the
government, subject to the consent of the legislature or one of its
branches.

3. Freedom of consent

Where consent of a party has been given in error or induced through

fraud on the party of other, the treaty is voidable. Where the consent of
the State is obtained through the corruption of its representative by
another negotiating State, the former may invoke such corruption in
invalidating its consent to be bound by the treaty.

Fraud or mistake has been uniformly recognized to invalidate a treaty as

it would an ordinary contract.

4. Lawful Subject-Matter

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 Treaties with unlawful subject-matter and purposes are regarded as null
and void.

Treaty-making Process

1. Negotiation

The representatives of parties are armed with credentials known as

full powers which is a document emanating from competent authority
of a State designating a person or persons to represent the State for
negotiating, adopting, or authenticating the text of a treaty,
expressing the State’s consent to be bound by a treaty, or
accomplishing any act with respect to a treaty.

Who are exempted from producing a “full powers”?

In virtue of their functions, the following are considered as

representing their State without having to produce full powers:

a. Heads of State, Heads of Government, and Ministers for Foreign

Affairs, for the purpose of performing all acts relating to the
conclusion of a treaty;
b. Heads of diplomatic missions, for the purpose of adopting the text
of a treaty between the accrediting State and the State to which
they are accredited; and,
c. Representatives accredited by States to an international conference
or to an international organization or one of its organs, for the
purpose of adopting the text of a treaty in that conference,
organization or organ (Article 7{2}, Vienna Convention).

2. Signing

What is the Principle of Alternat?

It refers to the principle which provides that a state’s own name will
be listed ahead of the other signatory, or signatories, in its own final
copy of the treaty. It is a practice devised to handle sensitivities over
precedence and to maintain the principle of equality between the
contracting parties.

a. Adoption and Authentication

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 Adoption takes place when States that took part in the creation of
the instrument certify that they have reached consensus to adopt
the same. Authentication, which comes after adoption, is the
process of certifying that the final copy of the document which they
are supposed to sign is the same as that which they agreed upon.

b. Types of Signature

i. Simple- where instrument was signed initially but the state is

not completely bound unless the signature is later ratified.
ii. Definitive- when the State is bound as soon as the instrument
is signed, regardless of whether it ratifies the instrument or not.

3. Ratification

The formal act by which a state confirms and accepts the provisions
of a treaty concluded by its representatives. Through ratification,
contracting parties are able to examine the treaty more closely and it
gives them the opportunity to refuse to be bound by it should they
find it inimical to their interests. It is for this reason that most treaties
are made subject to the scrutiny and consent of a department of the
government other than that which negotiated them.

In the Philippines, the power to ratify treaties is vested in the

President and not, as is commonly believed, in the legislature.

The role of the Senate is confined simply to giving or withholding its

consent to the ratification.

What are reservations?

Under Article 2 of the Vienna Convention, reservation is defined as a

unilateral statement, however phrased or named, made by a State,
when signing, ratifying, accepting, approving or acceding to a treaty,
whereby it purports to exclude or to modify the legal effect of certain
provisions of the treaty in their application to that State.

When may a State party to a treaty not be allowed to formulate a

reservation?

Under Article 19 of the Vienna Convention, a State may, when

signing, ratifying, accepting, approving or acceding to a treaty,
formulate a reservation unless:

a. The reservation is prohibited by the treaty;

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 b. The treaty provides that only specified reservations, which do
not include the reservation in question, may be made; or,
c. In cases not falling under sub-paragraphs (a) and (b), the
reservation is incompatible with the object and purpose of the
treaty.

4. Entry into Force

A treaty enters into force in such manner and on such date as it may
provide, or as the negotiating parties may agree. In the absence of
such a provision, the treaties enter into force as soon as the consent
of the parties to be bound by the treaty established.

What if a treaty is not registered with the UN Secretariat?

Under Article 102 of the UN Charter, a treaty not registered with the
Secretariat, by which it shall be published, cannot be invoked before
any organ of the UN, such as the ICJ.

When Non-signatories May be Bound by a Treaty?

As a rule, treaties cannot impose obligations upon States not parties to them:
Pacta tertiis nocent necprosunt. But non-signatories may be bound under the
following circumstances:

a. Adhesion/Accession- States not originally parties to the agreement may

become bound.
b. Most Favored Nation Clause- A contracting State entitled to the clause
may claim the benefits extended by the latter to another State in a
separate agreement.
c. If the treaty is merely a formal expression of customary international law,
or where the treaty expressly extends benefits to the non-signatory
States.

Interpretations of Treaties

The basic rule in the interpretation of treaties is to give effect to the intention of
the parties which should be discoverable in the terms of the treaty itself, which
ordinarily has an official text or texts to be used in case of conflicts in the
interpretation. Most treaties also contain a “protocol” or “agreed minutes” in
which certain terms used in the body are defined and clarified.

The usual canons of statutory construction are employed, as follows:

a. Specific provisions must be read in light of the whole instrument and
especially of the purposes of the treaty.

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 b. Words are to be given their natural meaning unless a technical sense
was intended, and, when they have different meanings in the contracting
states, should be interpreted in accordance with the usage of the state
where they are supposed to take effect.
c. Doubts should be resolved against the imposition of obligations and in
favour of the freedom and sovereignty of the contracting parties.
d. At all events, an interpretation that will lead to an absurdity is to be
avoided and a more rational result preferred.
e. Where intrinsic aids are unavailing, resort may be made to extrinsic aids,
such as the circumstances leading to the conclusion of the treaty,
statements recorded at the time of the negotiations, the preliminary
materials used, i.e. the travaux preparatories, and the like.

How may conflict in treaty interpretation be resolved?

It can be resolved only by agreement of the parties themselves or by an

international body and not unilaterally by the national courts of the
contracting parties. Decisions of such courts are received with respect but not
as authority.

What is pacta sunt servanda?

It is a fundamental rule of international law which requires the performance in

good faith of treaty obligations. The parties must comply with their
commitments under a treaty and cannot ignore or modify its provisions without
the consent of the other signatories.

What is the doctrine of rebus sic stantibus?

The doctrine constitutes an attempt to formulate a legal principle which would

justify non-performance of a treaty obligation if the conditions with relation to
which the parties contracted have changed so materially and so unexpectedly
as to create a situation in which the exaction of performance would be
unreasonable.

Limitations to the doctrine of rebus sic stantibus

a. It applies only to treaties of indefinite duration;

b. The vital change must have been unforeseen or unforeseeable and
should not have been caused by the party invoking the doctrine;
c. The doctrine must be invoked within a reasonable time; and
d. It cannot operate retroactively upon the provisions of the treaty already
executed prior to the change of circumstances.

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Amendment/Modification

To amend or modify provisions of the treaty, the consent of all of the parties is
required. However, if allowed by the treaty itself, two States may modify a
provision only insofar as they are concerned.

Termination of Treaties

a. By expiration of the term, which may be fixed or subject to a resolutory

condition.
b. By accomplishment of the purpose
c. By impossibility of performance.
d. By loss of the subject-matter.
e. By desistance of the parties, through express mutual consent;
desuetude, or the exercise of the right of denunciation (or withdrawal),
when allowed.
f. By novation.
g. By extinction of one of the parties if the treaty is bipartite.
h. By vital change of circumstances under the doctrine of rebus sic
stantibus.
i. By outbreak of war between the parties in most cases, save specifically
when the treaty was intended to regulate the conduct of the signatories
during the hostilities, or to cede territory, or to fix boundaries.
j. By voidance of the of the treaty because of defects in its conclusion,
violation of its provisions by one of the parties, or incompatibility with
international law or the UN Charter.

Termination Procedure

Under Article 65 of the VCLT, the procedure to terminate, invalidate, withdraw

from, or suspend the application of a treaty is the same.

a. Written Notice signed by an authorized representative must first be given

to the other State parties, and they shall be afforded at least three
months to reply except in cases of special urgency.

b. If the time to reply has lapsed and no reply has been filed, the State who
gave the notice can withdraw the same and conduct the proposed
termination, suspension, invalidation, or withdrawal.

c. In case there was an unfavorable reply within the time allowed, the
parties must then resolve their differences through peaceful means.

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Consequences

a. Invalidation- Article 69 of VCLT requires parties to be restored to their

former status as if there had been no treaty.

b. Termination- Article 70 provides that the parties are released from their
obligations but no restoration to former status is needed.

Note: If termination is due to a conflict with jus cogens, Article 71

provides that the parties must modify their conduct to conform to the jus
cogens.

c. Suspension- Article 72 provides that parties are released from their

obligations under the treaty while the suspension is in effect but are still
bound to refrain from acts tending to obstruct the resumption of the
operation of the treaty.

d. Withdrawals- a withdrawal by a party will only affect the withdrawing

party and not the treaty itself unless the instrument explicitly states that
the treaty will be inoperative unless a minimum number of States are
parties to it.

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REFERENCES:

Bernas, J. (2009). Introduction to Public International Law. Quezon City: Rex

Book Store

Nachura, A. & Gatdula, J. (2017). Outline Introduction to Public International

Law. Quezon City: Rex Book Store

United Nations (2005). 1969 Vienna Convention on the Law of Treaties.

Retrieved on November 19, 2020 from

https://www.gc.noaa.gov/documents/012780-vienna_treaty.pdf

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