Arlene Canyownes •Diplomatic Immunity 1990, 1995, 1997, 2000, 2001, 2002,

JD 2 2003, 2004, 2005

PIL •Flag State vs. Flag of Convenience 2004
•International Convention, Law of the Sea 2004
Public International Law •International Law vs. Municipal Law 2003, 2005
HOUSE WARMING •Neutrality of States 1988

Off-guarded question
OUR APPROACH OF LEARNING
•Outer Space; Jurisdiction (2003) 5%
•BAR EXAM
•No XIX - What is outer-space? Who or which can exercise
•PIL is among the favorites among the many components of Political Law
jurisdiction over astronauts while in outer space?
•Style/Thread of questions
•Recognition of States (de facto vs. de jure) 1998
•Definition
•Right of Innocent passage 1994, 2004
•Problem/Essay
•Use of force 1988, 1993, 1994, 1998, 2003, 2004
•Wilson Doctrine vs. Estrada Doctrine 2004
SUMMARY OF TOPICS (ALL TIME FAVORITE FOR P.I.L) •Jus cogens 2019
•Basic Principles; Reparation 1991, 2007 •Principle of Double criminality 2019
•Concept of Association 2010 •Act of state doctrine 2019
•Extradition: Double Criminality Deportation 1993, 1996, 2002,
2005, 2007 Surprising questions
•Genocide 1988, 2010 Political law 2017
•Hard Law vs. Soft Law 2008 State A and State B, two sovereign states, enter
•Human Rights; Civil and Political Rights 1992, 1996, 2007, 2010 into a 10-year mutual defense treaty. After five years,
•Int’l Court of Justice vs. Int’l Criminal Court 1994, 1999, 2006,
State A finds that the more progressive State B did not
2010
•International Law Violation; Treaty 2008 go to the aid of State A when it was threatened by its
•Opinio Juris 2012 strong neighbor State C. State B reasoned that it had to
•Opinio Juris 2008 be prudent and deliberate in reacting to State C because
•Principle of Attribution or Imputation 2010
of their existing trade treaties.
•Principle of Auto-Limitation 2006, 2009
•Retorsion 2010
(a) May State A now unilaterally withdraw from its
•Use of Force; Self-Defense 2009
•Verbal Agreement; Source of Int’l Law 2012 mutual defense treaty with State B? Explain your answer.
•Constitutive Theory vs. Declaratory Theory 2004 (2.5%)
•Contiguous Zone vs. Exclusive Economic Zone 2000, 2004, 2019
 (b) What is the difference between the principles of Hence, the dismissal order of the Regional Trial Court
pacta sunt servanda and rebus sic stantibus in was not correct. (C re-stated)
international law? (2.5%)
CHAPTER 1
(c) Are the principles of pacta sunt servanda and rebus GENERAL PRINCIPLE
sic stantibus relevant in the treaty relations between
PUBLIC INTERNATIONAL LAW
State A and State B? What about in the treaty relations
is essentially the law which governs the
between State B and State C? Explain your answer. relationship between nation-states, although the
(2.5%) subjects of international law now also extend to
How to answer bar questions individuals, international organizations and other actors
•RESPONSIVE (If answerable by a Yes or No) then begin with a Arigo et al. vs. Scott (G.R No. 206510, 2014)
Yes or No. Bayan Muna vs. Romulo (G.R. No. 159618, 2011)
•LOGICAL (lawyerly like arguments)
•ORGANIZED (polished, grammar, syntax) BASIS OF PIL
•LITERATE (use of legal terminologies)
•BRIEF (max of 4 paragraphs) 1. Naturalist: Natural Law controls the relations of
•Par 1: Response to the call (conclusion) states
•Part2: Legal Basis (avoid saying; “Under the Law” rather say 2. Positive: Basis of relations of states is consent (tacit,
“Based on the doctrine of…….. In Public International Law, it express or presumed)
provides that…..” 3. Groatians or Eclectics: Middle ground between
•Par 3: Application Naturalist and Positive
•Par 4: Conclusion re-stated
•A.k.a CRAC (Conclusion, Rule, Application, Conclusion re- PUBLIC INTERNATIONAL LAW AND PRIVATE
stated) INTERNATIONAL LAW

Public International Law governs the activities of

CONCLUSION (SOMETIMES EMPLOY AN ECHO METHOD)
governments in relation to other governments while
•Was the dismissal order of the Regional Trial Court
Private International Law governs the activities of
correct?
individuals, corporations, and other private entities when
No, the dismissal order of the Regional Trial Court was
they cross national borders.
not correct (C).
Based on the doctrine of jus cogens, ……(R)
In the case at the bar, XYZ committed…… (A)
Entities that create international law: States and Senator Tanada opposed the terms of reference under
international organizations (which are composed of this treaty (Angara being the Executive Secretary of
states) FVR)

RELATIONSHIP WITH MUNICIPAL LAW Concept of Auto-limitation

Reagan v. CIR, G.R. No. L-26379, December 27,
International Law is horizontal 1969:
Municipal law is vertical Under the principle of auto-limitation, any state may by
its consent, express or implied, submit to a restriction of
DOCTRINES GOVERNING RELATIONS IN its sovereign rights. There may thus be a curtailment of
INTERNATIONAL LAW what otherwise is a plenary power.

Doctrine of Incorporation DOCTRINE OF TRANSFORMATION

Sec. of Justice v. Lantion G.R.No. 139465, Jan. Requires the enactment by the legislative body of
18, 2000: Rules of international law form part of the law such international law principles as are sought to be part
of the land; and no further legislative action is needed to of municipal law.
make such rules applicable in the domestic sphere Process: concurred by at least 2/3 of all the members of
Expressed in Sec. 2, Art. II of the 1987 Constitution the Senate (at least 16 Senators)
“the Philippines renounces war as an instrument of Laguna Lake Development Authority vs. CA (in Remedial
national policy, adopts the generally accepted principles Law: Writ of Kalikasan)
of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, CONFLICT BETWEEN INTERNATIONAL LAW AND
freedom, cooperation and amity with all nations. MUNICIPAL LAW
Kuroda vs. Jalandoni If the conflict is with the Constitution, uphold
the Constitution
Tanada v. Angara, 272 SCRA 18: The sovereignty Sec. Justice vs. Judge Lantion
of a state therefore cannot in fact and in reality be If the conflict is with the statute, Apply the
considered absolute. Certain restrictions enter into the doctrine of incorporation.
picture: (1) limitations imposed by the very nature of Rules of international law are given equal standing
membership in the family of nations and (2) limitations with but are not superior to national legislative
imposed by treaty stipulations enactments (lex posterior derogat priori; which favors
This is the issue involving GATT that which comes last in time will usually be upheld by the
municipal tribunal
Ichong vs. Hernandez slave trade and piracy, (Brownlie, Principles of Public
Retail Trade Nationalization Law prevails over the International Law (1998), p. 515.
Treaty of Amity with China because the law was passed in It designates norms from which no derogation is
the exercise of the police power of the State, and police permitted by way of particular agreements. It stems
power cannot be bargained away through the medium of a from the idea already known in Roman law that certain
treaty or a contract legal rules cannot be contracted out, given the
fundamental values they uphold
BAR QUESTION
X a Filipino-Chinese is an importer of rice, doing business EXAMPLES OF JUS COGENS
in the Philippines. Later, Congress enacted a law which Genocide
regulated the importation of rice in favor of local Slavery
farmers. X questioned the legality of the law invoking Aggression
the doctrine of incorporation in international law. Is X’s Meaning, this is under the doctrine of incorporation
petition meritorious? No need to enact enabling laws
Using CRAC
MISNOMER ABOUT TREATIES
NO, X’s petition is not meritorious. General rule:
When conflict arise between international law and Treaties create general international law (if multilateral;
municipal law, the later prevails over the former. This is ex. WTO, UN)
in adherence to the principle of lex posterior derogate Exception:
priori espoused under the doctrine of incorporation. Bilateral; JPEPA, NAFTA,
In the instant case, the law which allegedly HOW ABOUT ASEAN?
transgressed the rights of the petitioner is an exercise This is multilateral
of the State’s police power which cannot be bargained. How about the Yogyakarta Principles?
Hence, X petition gains no legal support. Regarded as soft law, hence no binding effect to the
Philippines
JUS COGENS
Jus cogens (or ius cogens) is a latin phrase that It must be remembered that a treaty becomes
literally means “compelling law.” the law only between the parties who gave their consent
Examples of jus cogens norm: prohibition against the use thereto.
of force, law on genocide, the principle of self- Exception 1: Jus cogens (consent not needed, everyone
determination, principle of racial non-discrimination, is duty-bound to follow)
crimes against humanity, prohibition against slavery and
Exception 2: Persistent objector (objections from the SUBJECTS OF INTERNATIONAL LAW
early stages of the practice and maintains the said International law developed to regulate states because
objection consistently of:
Exception to the 2nd Exception: when the practice the emergence of states, state interaction and the
being objected to has already attained the status of jus development of the laws of war
cogens ❖ States
How about North Korea? ❖ Institutions
❖ Individual
Another illustration of Jus Cogens ❖
The refoulement doctrine
the forcible return of refugees or asylum seekers CHAPTER 2
SUBJECTS OF INTERNATIONAL LAW
to a country where they are liable to be subjected to
persecution MODES OF ACQUISITION OF TERRITORY

Stages in the Adoption of a Treaty: (1). Original Title

1. Negotiation (a). Discovery and Occupation
2. Execution/Signing (b). Accretion
3. Ratification (2). Derivative Title
(a). Prescription
4. Exchange of Instrument/ Deposit of Instrument
(b). Cession
(c). Conquest/Subjugation
Case: Bayan v Zamora, 342 SCRA 449 [2000]:
The Court held: “The Executive Agreement is also binding from the standpoint
Other Modes
of international law. x x x in international law executive agreements are equally
(a). Dereliction/Abandonment
binding as treaties upon the States who are parties to them.
(b). Erosion
Additionally, under Article 2{1)(a) of the Vienna Convention on the Law of
(c). Revolution
Treaties, whatever may be the designation of a written agreement between
(d). Natural Causes
States, whether it is indicated as a Treaty, Convention or Executive Agreement,
is not legally significant. Still it is considered a treaty and governed by the
Political and legal results of secession: This is the case of Taiwan
international law of treaties.
The new state does not have to recognize the government of the
state from which it broke
The new state has the right to govern its own citizens
The new state can independently enter into treaties
The new state can have membership in organizations that were Jure imperii or Jure gestionis???
previously closed to it, as some international organizations are
open only to certain states. As expressed in Section 2 of Article II of the 1987
The new state can be a party to an ICJ case Constitution,
We have adopted the generally accepted principles of
CASES: International Law. Even without this affirmation, such principles
of International Law are deemed incorporated as part of the law
MILF (a decade ago) publicized the executions of common of the land as a condition and consequence of our admission in
criminals in Mindanao the society of nations (United States of America v. Guinto, 182
CPP-NPA televised the conduct of wedding based on their laws SCRA 644 [1990]).
What are these acts? Classical or absolute theory, a sovereign cannot, without
These organizations are trying to convey a message that they its consent, be made a respondent in the courts of another
have their own government sovereign newer or restrictive theory, the immunity of the
If not controlled, this might escalate into Secession sovereign is recognized only with regard to public acts or acts
So, do we need to have visa to travel to Mindanao? jure imperii of a state, but not with regard to private acts or
How about the MOAD? This was junked by our SC for being acts jure gestionis(United States of America v. Ruiz, 136 SCRA
unconstitutional 487 [1987]; Coquia and Defensor-Santiago, Public International
Law 194 [1984]

PRINCIPLE OF SOVEREIGN IMMUNITY Examples of Jure imperii

A State on account of its status requiring sovereign (1) the lease by a foreign government of apartment
equality is not subject to the judicial process of another state buildings for use of its military officers (Syquia v. Lopez,
without its consent. 84 Phil. 312 [1949];
(2) the conduct of public bidding for the repair of a
Two Theories of Sovereign Immunity: wharf at a United States Naval Station (United States
of America v. Ruiz, supra.); and
Theory of Absolute Immunity (3) the change of employment status of base employees
: all acts of a State are immune from judicial process by (Sanders v. Veridiano, 162 SCRA 88 [1988]
other States.
Examples of Jure gestionis
(1) the hiring of a cook in the recreation center,
Theory of Restrictive Immunity consisting of three restaurants, a cafeteria, a bakery, a
: acts may be distinguished to determine suability of a store, and a coffee and pastry shop at the John Hay Air
State Station in Baguio City, to cater to American servicemen
and the general public (United States of America v.
(jure imperii and jure gestionis) Rodrigo, 182 SCRA 644 [1990]); and
 (2) the bidding for the operation of barber shops in Clark
Air Base in Angeles City (United States of America v.
Guinto, 182 SCRA 644 [1990]). So why Pemberton cannot be jailed in Bilibid?
See Article V, Section 10 of VFA
The operation of the restaurants and other facilities
open to the general public is undoubtedly for profit as a Sec. 10. The confinement or detention by Philippine
commercial and not a governmental activity. By entering into the authorities of United States personnel shall be carried out in
employment contract with the cook in the discharge of its facilities agreed on by appropriate Philippines and United States
proprietary function, the United States government impliedly authorities. United States personnel serving sentences in the
divested itself of its sovereign immunity from suit. Philippines shall have the right to visits and material assistance.
It is clear that the parties to the VFA recognized the
difference between custody during the trial and detention after
conviction, because they provided for a specific arrangement to
SO WHY JUS IMPERII AND JUS GESTIONIS MATTER? cover detention. And this specific arrangement clearly states not
Recall, a state cannot be sued without its consent only that the detention shall be carried out in facilities agreed
(pertaining only to Jus Imperii: USA vs. Guinto)hence immune on by authorities of both parties, but also that the detention
from local jurisdiction (see: Pemberton case) shall be "by Philippine authorities
the mere entering into a contract by a foreign state with a
private party cannot be the ultimate test. Such an act can only
be the start of the inquiry. The logical question is whether the Difference between a “state” and a “government”
foreign state is engaged in the activity in the regular course of States, not governments, are the bearers of rights and
business. If the foreign state is not engaged regularly in a obligations under international law. However, how a state governs
business or trade, the particular act or transaction must then be internally may be relevant to statehood and recognition of
tested by its nature. If the act is in pursuit of a sovereign governments
activity, or an incident thereof, then it is an act jure imperii, Recall the elements of a state
especially when it is not undertaken for gain or profit. People, territory, government, capacity to enter into
As held in United States of America v. Guinto relations with other state

There is no question that the United States of America, Recognition of States

like any other state, will be deemed to have impliedly waived its ❖ Take note, recognition of state subsumed the recognition
non-suability if it has entered into a contract in its proprietary of government
or private capacity. It is only when the contract involves its ❖ This presupposes that the statehood was attained with
sovereign or governmental capacity that no such waiver may be conformance to jus cogens
implied (USA vs. Guinto) ❖ Versus Recognition of government (does not amount to
recognition of State)
 ❖ See the case of Transkei, Ciskei, Bophuthatswana, and (2) stability and permanence
Venda. They claimed they were states and were (3) popular support
recognized only by each other) (4) ability and willingness to fulfill obligations

Theories on nature and effect of recognition (b) ESTRADA DOCTRINE

When a new government comes to power either through
Constitutive Theory aka Minority view constitutional means or otherwise, its relations with other states
Maintains that it is the act of recognition which remain unchanged. This was created by the Mexican government,
constitutes or creates the statues of a State as a subject of which found that it would be insulting to make determinations
public international law and thus gives it a legal personality. about recognition of governments because it would involve
Recognition is compulsory and legal; it may be compelled passing judgment on the internal affairs of other states.
once the elements of a State are established
(c) TOBAR DOCTRINE
: States will not recognize governments which come into power as
Declaratory Theory aka Majority view a consequence of a coup or of a revolution against the
Asserts that recognition merely confirms the acceptance government, so long as the freely elected representatives of the
of the States of the status of the entity as a State. people thereof have not constitutionally reorganized the country
Recognition merely affirms an existing fact; like the
possession by the State of the essential elements
It is discretionary and political Consequences of Recognition of Government

1. The recognized government or State acquires the capacity to

Functions of Recognition enter into diplomatic relations with recognizing States and to
First, the determination of statehood is a question of make treaties with them.
law. 2. The recognized government or State acquires the right of
Second, the act of recognition is a condition for the suing in the courts of law of the recognizing States.
establishment of formal, optional and bilateral relations including 3. It is immune from the jurisdiction of the courts of law of
diplomatic relations and the conclusion of treaties. recognizing States
4. It becomes entitled to demand and receive possession of
property situated within the jurisdiction of a recognizing State,
Three different approaches to recognition of governments by which formerly belonged to the preceding government.
other states: 5. Its effect is to preclude the courts of recognizing State from
making the new State liable for any judgment on the legality of
(a) Traditional approach its acts, past and future since recognition is retroactive
: States consider four factors in deciding whether to recognize a
state: CASES:
(1) effectiveness of control Marcos v. Manglapus, G. R. No. 88211, 15 September 1989:
 The Supreme Court held that: “The Constitution limits USE CR OR CRAC MODELS IN ANSWERING
resort to the political question doctrine and broadens the scope ★ Q: The Republic of Banana (RB) was one of the
of judicial inquiry…But nonetheless there remain issues beyond
the Court’s jurisdiction the determination of which is exclusively signatories of GATT, a treaty which lowers trade
for the President…We cannot, for example, question the barriers and revitalizes free flow of goods within
President’s recognition of a foreign government, no matter how member states. To hasten the implementation of GATT,
premature or improvident such action may appear.”
The President of RB asked the House of Representatives
INDIVIDUALS AND JURIDICAL ENTITIES
to enact laws which will lower tariffs and excise taxes on
Case: imported goods. Congressman Way Kurat (WK)opposed
Government of Hong Kong v. Judge Olalia, Jr. and Muñoz, and filed a petition before the Supreme Court
GR No. 153675, 19 April 2007: The Supreme Court said that the
questioning the legality of the proposed law contending
vulnerable doctrine that the subjects of international law are
limited only to states was dramatically eroded towards the that such violates the doctrine on equality of states.
second half of the past century. For one, the Nuremberg and Will WK’s petition prosper?
Tokyo trials after World War II resulted in the unprecedented ★ Q: The Republic of Bola-bola (Bb) was carved out from
spectacle of individual defendants for acts characterized as
violations of the laws of war, crimes against peace, and crimes the Republic of Bala bala. All elements of states are
against humanity. Recently, under the Nuremberg principle, present and the secession conforms to the doctrine of
Serbian leaders have been persecuted for war crimes and crimes jus cogens. Upon learning this development; Marites-the
against humanity committed in the former Yugoslavia. These
editor in chief of Manila Clock Magazine and a bona fide
significant events show that the individual person is now a valid
subject of international law.” resident of the Republic of Apil-apilon (Aa) filed a
petition for Mandamus before the Supreme Court in
order to compel the President of Aa to accord
recognition to the Republic of Bb. The 3rd Division of
LASTLY, WHAT’S THE DIFFERENCE BETWEEN ICJ AND ICC the SC slapped her with an unfavorable ruling. Seeking
for final remedy, she filed MR before the SC en banc.
This is my 1st question for the oral recitation (a Was there merit to her petition?
departure from mock bar format)
★ Q: The United States of Disunited (USD) entered into a
When reciting, be able to
Distinguish in terms of nature, jurisdiction or its subject and the treaty with the Republic of Tilapia (RT) where the
institution which created them former can establish military bases on major
metropolitans of the latter. The engagement went well.
ORAL RECITATIONS After the lapsed of 2 years, the military bases were
 toppled by a strong typhoon. To rehabilitate, USD initiative of the President. Was the action of HHH
engaged the services of Makaguba Construction (MC) , a tenable?
legitimate firm duly organized under the laws of RT. ★ Q: State A and State B are bordered by the Himalayas.
When the job was completed, MC billed USD but the State A nationalized all industries found therein. This
latter refused to pay. Seeking for legal retributions, MC means that the government has majority stake in all
filed a collection case against USD before an RTC which corporate affairs of all domestic companies. Irked by
has jurisdiction over MC. Will MC’s case progress? this process, State B sued State A before an
★ Q: During a civil war, Mr. Hilabtanon (a military international court. Will this case prosper?
commander) committed atrocities against ethnic
minorities in Bosnia. He ordered mass killings of all CHAPTER 3
FUNDAMENTAL RIGHTS OF STATES
Muslims on the contention that these people are eyesores
to development. His act leads to the exterminations of
FUNDAMENTAL RIGHTS OF STATES
all Muslims in Bosnia. When the hostilities subside, he
Mnemonics (SPEED)
was charged for genocide and was tried before the ICJ.
1. Right to Sovereignty and Independence;
He questioned the jurisdiction of ICJ and moved for the
2. Right to Property and Jurisdiction;
dismissal of his case. Was there merit to his
3. Right to Existence and Self-Defense
contentions?
a.k.a Existence and self-preservation
★ Q: The President of the Republic of the Philippines
4. Right to Equality
extended congratulatory messages to the newly elected
5. Right to Diplomatic Intercourse
President of Afghanistan (assuming that this is a newly
created state with all the essential elements of
POPULAR DOCTRINES to magnify SPEED
statehood). Two months after, the President of
INTERVENTION
Afghanistan send diplomatic envoy to the Philippines in
Act by which a State interferes in the domestic or
order to explore possibilities of trade relations. Upon
foreign affairs of another State through the use of force or
the order of the President of the Philippines they were
threat of force whether physical, political or economics
immediately deported back to their origin contending
Nicaragua vs. US Communique
that the Philippines do not want to have any pact or
Where the US was found guilty of intervention in the
treaty with Afghanistan. On this note, Congressman
affairs of Nicaragua for sending troops to Nicaragua to aid the
HHH (a member of Philippine Congress) questioned that
contras**, in as much as there was no armed attack against the Drago Doctrine
latter. The Drago Doctrine was announced in 1902 by Argentine
The Contras were the various U.S.-backed and funded Minister of Foreign Affairs Luis María Drago in a diplomatic note
right-wing rebel groups that were active from 1979 to 1990 in to the United States
opposition to the Marxist Sandinista Junta of National Drago Doctrine, a principle of international law that
Reconstruction Government in Nicaragua which came to power in rejects the right of a country to use military force against
1979 following the Nicaraguan Revolution. another country to collect debts.
How about the case of Russia vs. Ukraine?
This falls within collective self-defense (expressed not GLARING IMPACT OF DRAGO DOCTRINE
thru physical presence of another states’ armed forces by thru In 1904, the Roosevelt Corollary was issued by the
moral and economic support) United States in response to the Drago Doctrine and asserted
NOT TO BE CONSIDERED AS INTERVENTION the right of the United States to intervene in Latin America
Protest or demand for rectification or in the interests of American business and Latin American
reparation .President Clinton discouraging Americans from independence from European powers.
investing in Burma This was further augmented by the Porter Resolution
Limitation of the employment of force for the recovery
General Rule of debts.
Intervention is frowned upon because this tantamount to BAR ITEM
bypassing the State’s right to Sovereignty and Independence Compare and contrast the following; Drago Doctrine,
EXCEPTION: Roosevelt Corollary, and Porter Resolution
If executed under the zest of preservation of the Suggested Answer:
balance of power, preemptive self-defense, enforcement of Drago Doctrine prohibits the use of military force
treaty obligations, collection of debts against another country to collect debts. Roosevelt Corollary
This was prohibited by the Drago Doctrine embodied in was issued by the United States in response to the Drago
the Hague Convention of 1907. Doctrine where it espoused the rule that the use of military
force can be justified if the intention is to protect prevailing
business interest which rendered useless due to the presence of
colonizers. Porter Resolution permits the use of military force in
order to collect debts but on a limited manner
HOW LIMITED IS LIMITED???? Until now, this is not being Please take note that what is prohibited is intervention. So the
resolved by the UN presence of the armed forces of State A within the jurisdiction
General Rule: of State B upon the latter’s request is not an intervention (THIS
Intervention is frowned upon IS A POTENT AREA FOR THE BAR EXAM)
Exception
It is done to promote peace (peace here means the end NOT AN ACT OF INTERVENTION
of the process, because how come there is peace when the means Canadian Caper in relation to the Tehran Hostage Crisis
of having it is through war?) where a joint US and Canadian covert rescue operation was
NOT Really an Exception to the Exception launched in Tehran to rescue and extract US diplomats
The Drago Doctrine which was later weakened by the Operation Entebbe where the Israel Defense Forces
Roosevelt Corollary and Porter Resolution. launched a rescue operation in Uganda where terrorists friendly
to the government of Uganda were holding Israel citizens
THE BEAUTY OF LEGAL HERMENEUTICS hostage
General Rule:
Intervention is frowned upon NOT SO SETTLED DOCTRINE
Exception Humanitarian Intervention
It is done to promote peace (peace here means the end The intervention of one State into the territory of
of the process, because how come there is peace when the means another in order to protect the nationals of the invaded state.
of having it is through war?) It remains debatable whether humanitarian intervention
NOT Really an Exception to the Exception is valid under international law given the principle of sovereignty
The Drago Doctrine which later weakened by the
Roosevelt Corollary and Porter Resolution But it becomes apparent that humanitarian intervention is valid
UN Charter Article 2.7 also concerning NATO’s Military
Restatement of the General Rule Intervention in Kosovo in 1999
Article 2 of UN Charter: UN Security Council Resolution 1973, 2011; which
Even the UN is precluded from intervening in matters authorized albeit in limited fashion NATO’s humanitarian
essentially within the domestic jurisdiction of a State, unless intervention in Libya
necessary to remove and prevent threats to the peace, breaches, BUT HOW COME NATO’S HANDS ARE TIED WITH THE
or acts of aggression. PRESENT ATROCITY IN UKRAINE?
Right of Equality ❖ Former head of State are said to possess only functional
Act of State Doctrine immunity
Every sovereign state is bound to respect the ➢ Rationae Materiae
independence of every other State, and the courts of one ■ Immunity for public acts done while still
country will not sit in judgment on the acts of the government of in office
another, done within its territory ➢ Rationae Personae
Redress of grievances by reason of such act must be ■ Immunity for private acts done while still
obtained through the means open to be availed of the sovereign in office
powers as between themselves (Underhill vs. Hernandez, 168 ❖ Immunity Rationae Personae cannot be invoked once the
US.250) leader steps down from office
➢ Republic of the Philippines vs. Marcos (806 F.2nd.
State Immunity 344 US Court of Appeals)
Par in parem non habet imperium (favorite in the BAR) ■ Where it was ruled that torture and
Latin for "equals have no sovereignty over each other“ killings are not official acts to which a
Par in parem non habet imperium is a general principle of Head of State can claim immunity
international law, forming the basis of state immunity. Because ➢ This is the reason why the International Human
of this principle, a sovereign state cannot exercise jurisdiction Rights groups wanted to corner former President
over another sovereign state RRD.

Ships CHAPTER 4
TERRITORY OF STATES
● Right of innocent passage
● Applicable only to merchant ships TERRITORY
○ Waived if they committed criminal act ● The fixed portion on the surface of the earth on which
○ See English Rule vs. French Rule the State settles and over which it has supreme
● Cannot be invoked by war ships authority
○ Mere presence in someone’s territory is an ● The components of the territory of the State are the
intrusion terrestrial, fluvial, maritime, and aerial domains
BAR Exam Question (in the 40s) ● Only applies if the territory discovered and occupied
Can the USA claim ownership over the moon since it was falls within terra nullius (a territory without a master)
the first country to erect its flag over it? ● Discovery alone merely creates an inchoate right (a topic
Answer: in succession and even in contracts). It must be followed
Space is free for all nations to explore, and sovereign within a reasonable time by effective occupation and
claims cannot be made. Space activities must be for the benefit administration
of all nations and humans. So, nobody owns the moon. ○ This is the case of Kalayaan Island. When Cloma
discovered it and turned it over to Marcos,
Note: Marcos conducted an election in the island, this is
the suggested answer was patterned from old an act of sovereign exercise manifesting
nomenclature of answering BAR EXAMS. occupation
If the same question shall be asked during your BAR EXAM,
please answer it using CR or CRAC Model 2. Prescription
USING CR ● This presupposes the absence of any contesting State
No, the United States of America cannot claim ownership ● Hence, China cannot invoke prescription over its claim to
over the moon even if it was the first country to erect its flag Bajura di Masinloc, Spratlys and other islands where
over the moon. Indonesia, Singapore, Philippines laid their claims
Space is free for all nations to explore, and sovereign 3. Cession (by treaty)
claims cannot be made. 3.1. Treaty of Sale
BUT CRAC IS NOT APPLICABLE HERE. Alaska was once under the control of the USSR.
Clue; if the question in the BAR is straightforward But the former sold it to USA
(meaning, short and direct), the examiner also wishes that the 3.2 Treaty of Donation
candidates will respond the way he coined his question. The donation of Sabah by Borneo to the Sultan of
Meaning, short facts demand short answer Sulu
Exception: if it is all about enumerations with explanations

LAND TERRITORY (TERRESTRIAL DOMAIN)

Modes of acquisition
1. Discovery and occupation
HOW ABOUT THE PHILIPPINES? ■ Merchant ships without any flag is
❖ We gain our independence from the Spaniards when the regarded as pirate ship
latter sold us to the US, together with Puerto Rico,
Marianas, and Guam for $20M AIR TERRITORY (Aerial Domain)
➢ Take note that until now, among these States, ❖ State can impose no fly zone
only the Philippines is out from the control of the ❖ Other states have no right of innocent passage over the
“commonwealth” style of AMERICA air territory of another State (Chicago Convention in
➢ The rest remain as American territory, and its 1944)
inhabitants enjoyed the American “milk and ➢ Applies only to State aircraft (military aircrafts,
honey” drones)
4. Conquest ■ Exception: Aircraft in distress
5. Accretion ➢ Commercial aircrafts are allowed
● CONTEMPORARY STANDARDS FOR MODES OF ■ How about the case of KAL 007 in 1983
ACQUISITION when it was shot down by the Russians?
1. Consent Until now, no one is held liable
1.1 Direct ❖ Except for outer space which is regarded as res
1.2 indirect (estoppel) communes
● India took over territories of Portugal
namely; Goa, Damao, and Diu) JURISDICTION OF STATES
● The silence of international community is Jurisdiction means the power of a state under
an implied consent over the acts of India international law to govern persons and property by its municipal
MARITIME TERRITORY (Fluvial and Maritime Domain) law. This may be criminal or civil, and may be exclusive or
● This is well defined under UNCLOS concurrent with other states [HARRIS]
● Mnemonics (ABC) Types of Jurisdiction:
○ Around, Between, Connecting A. Prescriptive Jurisdiction:
○ Warships cannot invoke the right to innocent ● This refers to the power of a State to make its law
passage applicable to the activities, relations, or status of
○ Merchant ships are allowed entry after thorough persons, or the interests of persons in things, whether
inspections by legislation, by executive act or order, by
 administrative rule or regulation, or by determination by c. Protective Principle:
a court ● A State may exercise jurisdiction over an offense
B. Adjudicative Jurisdiction: committed outside its territory by its national or non-
● This refers to the State’s jurisdiction to subject persons national, by reason of protecting its security or vital
or things to the process of its courts or administrative interests
tribunals, whether in civil or in criminal proceedings, d. Universality Principle:
whether or not the state is a party to the proceedings. ● A State may exercise jurisdiction over crimes committed
C. Enforcement Jurisdiction: without respect to the nationality of the offender, on
● This refers to the State’s jurisdiction to enforce or the ground that such crimes are declared as international
compel compliance or to punish noncompliance with its crimes by the international community as a whole and
laws or regulations, whether through the courts or by use thus are prohibited by international law [MAGALLONA].
of executive, administrative, police, or other nonjudicial Example: Jurisdiction is asserted with respect to acts
action considered committed against the whole world [e.g.
Basis of Jurisdiction piracy, see People v. Lol-lo and Saraw, G.R. No. 17958
a. Territoriality Principle: (1922)].
● Jurisdiction is determined by reference to the place
where the act occurred or was committed. A State takes e. Passive Personality Principle:
jurisdiction over persons or events within its territory. ● A State may exercise jurisdiction against foreign
[MAGALLONA] Usually refers to criminal jurisdiction. nationals who commit acts to the injury of its nationals
● Lotus Case 1927 within the territory of another State [MAGALLONA]. A
b. Nationality Principle: court has jurisdiction if the offended party of the act is
● A State may exercise jurisdiction over an offender by a national of the forum state [S.S. Lotus Case (PCA,
virtue of his being its national, without regard as to 1927)]
where he was at the time the offense was committed and
without respect to the nature of the offense
[MAGALLONA].
 Exemptions from Jurisdiction 2. Ratione Personae:
a. Acts of State Doctrine ● Attaches to the office itself. However, in contrast, it
State Immunity General Rule: covers official and personal acts
● This refers to a principle by which a state, its The Nature of State Immunity
agents, and property are immune from the 1. It is preliminary in nature and does not depend on the
jurisdiction of another state [MAGALLONA] obligation breached by the State.
● This principle is premised on the juridical equality 2. It is a customary norm
of states, according to which a state may not 3. Such immunity applies even if the claim against the state is for
impose its authority or extend its jurisdiction to violation of a jus cogens norm in international law.
another state without the consent of the latter,
through a waiver of immunity. “Immunity from jurisdiction is an immunity not merely
● Thus, domestic courts must decline to hear cases from being subjected to an adverse judgment but from being
against foreign sovereigns out of deference to subjected to the trial process. It is, therefore, necessarily
their role as sovereigns. preliminary in nature. […]
○ Exception: When a state waives the In addition, there is a substantial body of State practice
immunity or consents to being sued from other countries which demonstrates that customary
Types of State Immunity international law does not treat a State’s entitlement to
1. Rationae Materiae: immunity as dependent upon the gravity of the act of which it is
● Attaches to the official acts of State officials and is accused or the peremptory nature of the rule which it is alleged
determined by reference to the nature of the acts in to have violated.” [Jurisdictional Immunities of the State,
question rather than by reference to the particular Germany v. Italy (ICJ, 2012)
office of the official.
● a. Doctrine of Restrictive Immunity divides this immunity
into two categories: b. International Organizations and their Officers
i . Acts performed jure imperii: that is, private or There are 3 propositions underlying the grant of
commercial transactions of States, are subject to foreign international immunities to international organizations. These
jurisdiction. principles, contained in the ILO Memorandum are stated thus:
ii. Acts performed jure gestionis: the foreign State in its (1) International institutions should have a status which
capacity as a sovereign, are immune protects them against control or interference by any one
government in the performance of functions for the effective DIPLOMATIC IMMUNITY
discharge of which they are responsible to democratically-
constituted international bodies in which all the nations Diplomatic Immunity is not an inherent right but rather one
concerned are represented; established by mutual consent of States (THIS IS A POTENT
(2) No country should derive any national financial advantage by GROUND FOR BAR EXAM QUESTION because this is doctrinal)
levying fiscal charges on common international funds; and See the compelling points raised by Justice Nachura (p. 88 of his
(3) The international organization should, as a collectivity of book)
States members, be accorded the facilities for the conduct of
its official business customarily extended to each other by its
individual member States

JURISPRUDENCE WORTH PONDERING

International immunity is not concerned with the status,
dignity or privileges of individuals, but with the elements of
functional independence necessary to free international
institutions from national control and enable them to discharge
their responsibilities impartially on behalf of all their members.
The raison d’etre for these immunities is the assurance
of unimpeded performance of their functions by the agencies
concerned [International Catholic Immigration Commission v.
Calleja, G.R. No. 85750 (1990)]