NOTES IN

PUBLIC
INTERNATIONAL
LAW

JUDGE CHARITO M. MACALINTAL-SAWALI, DCL

Professor, Public International Law
Faculty of Civil Law
University of Santo Tomas

1
 TABLE OF CONTENTS

1. General Principles ……………………………………………………………. 3

2. Sources of International Law ………………………………………………. 8

3. International Law and Municipal Law ……………………………………... 15

4. Treaties …………………………………………………………………………. 19

5. States as Subject of International Law …………………………………… 32

6. Other Subjects of International Law ………………………………………. 41

7. Recognition ……………………………………………………………………. 60

8. Treatment of Aliens …………………………………………………………... 65

9. Territory ………………………………………………………………………… 73

10. Jurisdiction of States ………………………………………………………… 85

11. Immunity from Jurisdiction …………………………………………………. 95

12. International Human Rights Law …………………………………………… 111

13. Peaceful Settlement of International Disputes …………………………… 121

14. Use of Force Short of War ……………………………………………………. 132

15. The Law of War (International Humanitarian Law) ………………………. 142

16. International Environmental Law ……………………………………………. 156

17. International Economic Law …………………………………………………. 161

SUPPLEMENTAL NOTES: Rights of Refugees …………………………………164

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 CHAPTER 1

GENERAL PRINCIPLES

Public International Law, Defined

Traditional - A body of rules and principles of action which are binding upon civilized
states in their relation with one another.

Schwarzenberger’s - The body of legal rules which apply between sovereign states and
such other entities as have been granted international personality.

Restatement (3rd) of Foreign Relations Law of the US - 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. The term
“international law” was first used in 1870 by Jeremy Bentham in his Introduction to the
Principles of Morals and Legislation.
Considered broadly, international law may include “public” and “private”
international law although the term is generally understood to cover only public
international law.

Scope of International Law

▪ expansion of scope of international law is revolutionary
▪ the expansion is affected by many factors

Is International Law a Law?

Challenges to international law as law
▪ Basic challenge
▪ Absence of international legislative, executive and judicial body

In the final analysis, there is a general respect for law because of the possible
consequences of defiance either to oneself or to the larger society.

Theoretical Basis of International Law

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What is it that gives binding force to international law has been explained by different
schools of thought:
▪ Naturalist
▪ Positivist
▪ Eclectic or Grotian

Sanctions of international law

▪ The belief shared by many states in the inherent reasonableness of international
law and in their common conviction that its observance will redound to the welfare
of the whole society of nations
▪ The normal habits of obedience ingrained in the nature of man as a social being
▪ Respect for world opinion held by most states or their desire to project an
agreeable public image
▪ The constant and reasonable fear that violations of international law might visit
upon the culprit the retaliation of other states
▪ The machinery of UN

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

Distinctions with 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.
▪ 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

4
 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 is usually collective.

Distinction between Public and 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.

Brief historical Development of International law

From ancient law to League of Nations

▪ Ancient international law was characterized by exchange of diplomatic emissaries,
peace treaties, in the world of ancient Romans and even earlier.
▪ Evidence established that treaties of peace and alliances were concluded between
Jews and Romans, Syrians and Spartans.
▪ The progressive rule of jus gentium, seen as a law “common to all men”, became
the law of the vast Roman Empire.
▪ Modern international law started with the emergence of nation-states in the
Medieval Age when the governing principles were derived from Roman Law or
Canon Law which originated from Natural Law.

● Hugo Grotius (Dutch) became known as the Father of Modern International

Law.

• Authored De Jure Belli ac Pacis

• What he called then as “law of nations” was later renamed “international
law” by British philosopher Jeremy Bentham.
• Prior to Grotius were the following Naturalists:
• Alberico Gentili, Oxford Professor of Roman Law (De Jure Belli)
• Francisco de Vitoria, Spanish theologian
• Francisco Suarez, Jesuit theologian
• Samuel Pufendorf, German (DE Jure Naturae Gentium)
• Emmerich de Vattel, Swiss (The Law of Nations)

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 ▪ The positivist approach made a new interpretation of international law not on the
basis of concepts derived from reason but rather on the basis of what actually
happened in the conflict between states.
▪ The birth of the notion of sovereignty of states ushered the view that law are
commands originating from a sovereign and backed up by threats of sanction if
disobeyed.

● Under this view, IL is not a law.

Significant Milestones in the Development of IL

▪ The Peace of Westphalia that ended the Thirty Years War (1618-1648) and
established a treaty-based framework for peace cooperation. It was at this time
that pacta sunt servanda arose.
▪ Congress of Vienna (1815) that ended the Napoleonic Wars and created a
sophisticated system of multilateral political and economic cooperation.
▪ Covenant of the League of Nations (1920) which included the Treaty of Versailles
that ended WWI

After the first world war, the winning countries established an institution designed
to prevent the happening of another world war, and that is the League of Nations.
▪ Consisted of 43 states including the five British dominions of India, Canada, South
Africa, Australia and New Zealand.
▪ U.S. was not a member
▪ The League created the PCIJ

From the end of WWII to the end of Cold War

▪ Since the League of Nations (LON) failed to prevent the recurrence of a world
conflagration, the winning countries in the second world war created UN in 1945.
▪ This marked the shifting of power away from Europe and the start of a truly
universal institution.
▪ The universalization was advanced by decolonization which resulted in the
expansion of membership of the UN.
▪ This period witnessed the rise of three major groupings:
● Western states
● Socialist states
● Developing countries
▪ This period was the Cold War period when peace was maintained through the
balancing of the two super powers, US and its allies on the one hand and the
Soviet Union.

6
The End of the Cold War
▪ Resulted from the dissolution of the Soviet Union with the re-emergence of
international relations based on multiple sources of power and not mainly on
ideology.
▪ At present, there is only one super power, the US, which acts both as world
policeman and as a global mediator.
▪ Socialist countries are no longer united with some of them depending on the
support of Western states.
▪ Developing countries seem to veer away from ideological orientation and towards
market orientation instead and towards fighting poverty and backwardness. UN
seems to have declined as an international agency for the maintenance of peace.

7
 CHAPTER 2

SOURCES OF INTERNATIONAL LAW

Classification of the Sources of International Law

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.

C. Treaties
▪ 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.
▪ 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.

8
 ● The treaty need not be entered into at the outset by a majority of states
forming the international community.
● Even if originally agreed upon only by a few states, the treaty may become
binding upon the whole world if it is intended to lay down rules for
observance by all and it is subsequently signed or acceded to by other
states which thereby submit to its provisions.
▪ Examples of “law-making treaties”
- Peace of Westphalia of 1648
- The Congress of Vienna of 1815
- The Declaration of Paris of 1856
- The Geneva Red Cross Convention of 1864
- The United Nations Charter of 1945

D.Custom or Customary law

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

Two basic elements:

I. Material factor - how states behave

II. 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
A. Duration
 The required duration can either be short or long
- The Paquete Havana Case
- North Sea Continental Shelf Cases

B. Consistency
 Continuity and repetition of practice
 The rule laid down in the Asylum case

C. Uniformity and generality

 Need not be complete but must be substantial
 In Nicaragua v US (ICJ Reports 1986), the Court said that the practice need
not be “in absolute conformity” with the purported customary rule and held
that:
- In order to deduce the existence of customary rules, the
Court deems it sufficient that the conduct of states should,
in general, be consistent with such rules, and that

9
 instances of state conduct inconsistent with a given rule
should generally have been treated as breaches of that
rule, not as indications of the recognition of a new rule.

▪ Opinio juris
- The belief that a certain form of behavior is obligatory that makes practice an
international rule.
- Without it, practice is not law.
- It is also possible for customary law to develop which will bind only several
states, or even only two states but the party claiming it must prove that it is also
binding on the other party.

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).

What would a contrary practice arising after a practice has been accepted as law
have?

In the Fisheries Jurisdiction case (1974 ICJ Reports), the opinion was expressed
that such contrary practice can cast doubt on the alleged law and noted great uncertainty
to the existing customary law on account of the conflicting and discordant practice of
States. It concluded that such uncertainty had a prejudicial effect to the stability of a still
developing or evolving customary law on the subject. Over time, if the contrary practice
should gain general acceptance, it might instead become the law.

The existence of opinio juris is a matter of proof and the burden of proving its existence
falls on the state claiming it.
▪ In Nicaragua v. US, where one of the issues was whether the prohibition of the use
of force was customary law, the ICJ said that consent of the parties to GA
Resolution 2625 (Declaration on Principles of International Law concerning
Friendly Relations and Co-operations among States in Accordance with the
Charter of the UN), is one of the forms of expression of an opinio juris with regard
to the principle of non-use of force, regarded as a principle of customary
international law, independently of the provisions, especially those of an
institutional kind, to which it is subject on the treaty-law plane of the Charter.

Is “instant custom” possible?

10
 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.

The Martens Clause

▪ A paragraph found in the 1899 Hague Peace Convention
▪ First inserted by the Russian publicist Fyodor Martens
▪ Was also included in the 1949 Vienna Convention and the First Additional Protocol
of 1977
▪ The clause puts the “laws of humanity” and the “dictates of public conscience” on
the same level as “usages of states” or usus, thus suggesting that even without
practice or usus or at least without consistent practice there can emerge a principle
of law based on laws of humanity and the dictates of public conscience.

What if a treaty is in conflict with a customary law? How can the conflict be
resolved?
▪ If a treaty comes later than a particular custom, as between the parties to the treaty,
the treaty should prevail.
● A treaty manifests a deliberate choice of the parties and the principle of
pacta sunt servanda should be followed.
● Wimbledon case (PCIJ 1932)
● If a later treaty is contrary to a customary rule that has a status of jus
cogens, custom will prevail.
- Pursuant to Article 53 of the Vienna Convention where it is provided
that a treaty is void if at the time of its conclusion, it conflicts with a
peremptory norm of general international law.

▪ Where custom develops after a treaty, though the rule is not clear, it is more logical
that the later custom, being the expression of a later will, should prevail.
● Though this practice will militate against treaties.
● In practice, however, efforts are made to keep treaty alive by reconciling it
with the developing custom (Anglo-French Continental Shelf Case, 1979).

General Principles of Law (recognized by civilized nations)

▪ Restatement referred to it as “general principles of law recognized by or common
to the world’s major legal systems”.

11
 ▪ They are actually principles of municipal law common to the legal systems of the
world.
▪ In a sense, they may be said to belong to no particular system but are evidence
rather of the fundamental unity of law.
▪ Most of these principles have either become part of customary law or have been
incorporated into conventional international law.
• Examples of general principles of law are:
● The general conception of law that every violation of an engagement
involves an obligation to make reparation.
● The affirmation that private rights acquired under one regime does not
cease upon the change of government.
● The principle of estoppel
 The affirmation of general principles of law found in domestic
systems as a source of international law makes up for the fact that
there is no international legislative system.
 It is to rules generally accepted by municipal systems ... And not to
the municipal law of a particular State, that international law refers.

D. Judicial decisions
▪ Article 38 of the Statute directs the Court to apply judicial decisions as subsidiary
means for the determination of the rules of law.
▪ But this is subject to Article 59 which says that “the decisions of the court have no
binding force except between the parties and 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.
▪ Examples of international law principles that originated from the ICJ
 The principle recognizing the international personality of international
organizations
 The doctrine on “genuine link” between a person and a state for purposes
of jurisdiction
 The straight baseline method in drawing baselines for archipelagos
o Arbitral decisions have been also instrumental on the formation of
international law principles.
o In considering the decisions of courts as subsidiary means for the
determination of the rules of law, Article 38 does not distinguish
between those rendered by international tribunals like the ICJ and
arbitration bodies and those promulgated by national courts.

12
 o Both kinds of decisions are acceptable as long as they are a correct
application and interpretation of the law of nations or, as Fenwick
says, “undertake to establish the true rule of international law”.

E. Teachings of the Most Highly Qualified Publicists of the Various Nations

▪ In many cases of first impression, the only authorities that can be cited are writers.
▪ The tradition of the court or of individual judges determine the extent to which they
are referred to.
 In common law jurisdictions, there is reluctance to use them, more so in the
US than in Britain.
 In civil law jurisdictions, there is more ready reference to writers.
 The ICJ is generally reluctant to refer to writers but they are often taken into
consideration.

F. Publicists are Institutions which Write on International Law.

▪ The more significant ones are the following:
 The International Law Commission, an organ of the UN;
 The Institut de Droit International, The International Law Association, a
multinational body;
 The (Revised) Restatement of Foreign Relations Law of the United States;
and
 The annual publication of the Hague Academy of International Law.

- It should be noted, that these institutions are generally

government sponsored; hence they bear within themselves a
potential for national bias.

▪ 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.

G. Equity

▪ The PCIJ had occasion to use equity as a source of law in the case of Netherlands
v. Belgium where Judge Hudson made the following pronouncements:
- It would seem to be an important principle of equity that where two
parties have assumed an identical or a reciprocal obligation, one party
which is engaged in a continuing non-performance of that obligation
should not be permitted to take advantage of a similar non-performance
of that obligation by the other party.

13
 ● Judge Hudson justified his use of equity on the basis of Article
38 of the Statute of the ICJ that expressly directs the
application of “general principles of law recognized by civilized
nations”, and in more than one nation principles of equity have
an established place in the legal system.

Equity, when accepted, is an instrument whereby conventional or customary law

may be supplemented or modified in order to achieve justice.

H. 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
 Not included among the sources
 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.

14
 CHAPTER 3

INTERNATIONAL LAW AND MUNICIPAL

LAW
What are the two schools of thought that explained the relationship between
international law and municipal law?
Monism – law is viewed as a single entity of which “national” and “international”
versions are merely particular manifestation; believes in the oneness and unity of all law;
posits that IL and ML are simply two components of a single body of knowledge called
‘law”.
Two monist theories
1. First monist theory – holds that municipal law subsumes and is superior to
international law.
2. Second monist theory – holds that international law is superior to domestic law.

Dualism – believes in the dichotomy of the law; posits that there are certain well-
established differences between international law and municipal law; considers IL and ML
as independent of each other, and both systems are regarded as mutually exclusive and
independent as they exist side by side within different spheres of action-the international
plane and the domestic plane.

Municipal Law in International Law

What are the indications of the recognition of the existence of two legal systems,
i.e. municipal and international law?
1. Article 27 of the Vienna Convention on the Law of Treaties
- “A party may not invoke the provisions of its internal law as justification for
its failure to perform a treaty.”

2. Article 13 of the Declaration of Rights and Duties of States adopted by the

International Law Commission in 1949

15
 - “Every State has the duty to carry out in good faith its obligations arising
from treaties and other sources of international law, and it may not invoke
provisions in its constitution or its laws as an excuse for failure to perform
this duty.”

3. Article 38 of the ICJ Statute

- recognizes the common teachings of domestic law as part of international
law

International Law in Domestic Law

How does international law become part of domestic law for “dualists”?
There are two theories:
1. Doctrine of Transformation - since there is distinction between municipal law and
international law, considering that they operate separately, for international law to
become part of domestic law, it must be expressly and specifically transformed into
domestic law through the appropriate constitutional machinery such as an act of
Congress or Parliament. This doctrine flows by analogy from what is applicable to
treaties. Treaties do not become part of the law of a state unless it is consented to by
the state.

2 Types of Transformation theories

a. Hard transformation theory – holds that only legislation can transform IL

into DL; courts may apply IL only where authorized by legislation.
b. Soft transformation theory – holds that either a judicial or legislative act
of a state can transform IL into DL

2. Doctrine of Incorporation - as an inevitable consequence of membership in the

international community, with or without an express declaration to this effect, states
admitted to the family of nations are bound by the rules prescribed by it for the
regulation of international intercourse. A specific rule of international law becomes
part of the national law without the need for express adoption. However, other states
like Austria, Germany, Korea and the Philippines deemed it fit to include in their
respective constitution a provision affirming recognition of the principles of
international law. As a result, as in the case of the Philippines, since treaties become
a part of Philippine law only by ratification, the principle of incorporation made possible
through Article II, Section 2 of the 1987 Constitution applies only to customary law and
to treaties which have become part of the customary law.

16
What is the nature of the incorporation theory that is applied by the 1987
Constitution?
The 1987 Constitution follows the “restrictive and automatic” incorporation theory.
Restrictive, since only generally accepted principles of IL become part of the law of the
land, and automatic, in the sense that generally accepted principles of IL automatically
become part of the law of the land without need of an act of Congress expressly adopting
them or incorporating them as part of domestic law.
What then is the difference between the doctrine of transformation and doctrine of
incorporation?
The difference lies in the fact that incorporation adopts IL into NL just because it is
IL, whereas transformation requires a deliberate act on the part of the State concerned.
What is the “Fitzmaurice Compromise”?
This was explained by Sir Gerald Fitzmaurice. According to him, since IL and NL
(ML) operate in different fields, they can never be in conflict. Each one of them is supreme
in its own domain, thus any conflict or question in the domestic sphere is resolved by
domestic rules while any conflict or question in the international field is settled by
international law.
If there is conflict between IL and DL, how can the conflict be resolved under the
international rule?
The question on which law should prevail depends on whether the case goes to a
domestic court or to an international tribunal. It is an established principle that, before an
international tribunal, a state may not plead its own law as an excuse for failure to comply
with international law.
This principle of the Vienna Convention has long been established and is generally
recognized. However, an exception is made to the rule by Article 46 of the same
Convention in cases where the constitutional “violation was manifest and concerned a
rule of its internal law of fundamental importance.” The same article defines the violation
as “manifest if it would be objectively evident to any State conducting itself in the matter
in accordance with normal practice and in good faith.”
If the treaty that is declared unconstitutional, however, does not come under the
exception, the treaty can be ignored domestically but only at the risk of international
repercussions before an international court.
How can the same conflict be resolved under the municipal rule?
When the conflict comes before domestic courts, domestic courts are bound to
apply the local law. Thus, should a conflict arise between an international agreement and
the Constitution, the treaty would not be valid and operative as domestic law.
Article VIII, Section 5, 2(a) of the 1987 Constitution recognizes the power of the
Supreme Court to declare a treaty unconstitutional.

17
Does a treaty declared as unconstitutional lose its character as an international
law?
No, under the “dualist” theory, which the Constitution accepts, the
unconstitutionality of a treaty is purely a domestic matter. As Article 27 of the Vienna
Convention on the Law of Treaties says, “A party may not invoke the provisions of its
internal law as justification for its failure to perform a treaty” (Tanada vs Angara, MPH vs
GSIS).
When there is conflict between international agreement and legislation, how shall
the conflict be resolved under the municipal rule?
The rule followed in the US and the Philippines is that treaties and statutes are
equal in rank and that, since neither is superior to the other, the rule followed is that as
between an earlier treaty and a later law, the later one prevails.
However, the rule applies only in the domestic sphere. The treaty, even if contrary
to later statute, remains as international law; while an international tribunal would not have
the power to reverse the nullification of the treaty in domestic law, it can take appropriate
action in favour of an aggrieved state.

18
 CHAPTER 4

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.
What are the other names of treaties?
Treaties can assume various names such as conventions, pacts, covenants,
charters, protocols, concordat, modus vivendi, etc.
What is a concordat?
It is a treaty or agreement between the Pope and a State or Government that deals
with religious matters, as well as the recognition and privileges of the Holy See in other
States.
What is the law on treaties?
The law on treaties can be found in the 1969 Vienna Convention on the Law of
Treaties. It governs treaties between states. It entered into force in January 1980. While
the document is not retroactive in effect, it does contain customary law precepts
antedating 1969.
A Convention on the Law of Treaties Between States and International
Organizations or Between International Organizations was adopted on March 26, 1986.
It should enter into force 30 days after the 35th ratification or accession of states.
How are treaties defined?
A treaty may be defined as a formal agreement, usually but not necessarily in
writing, which is entered into by states or entities possessing the treaty-making capacity,
for the purpose of regulating their mutual relations under the law of nations. Though,
treaty may be known by other names, all agreements, when intended to create legal as
distinguished from moral obligations, are binding on the parties.

19
 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?
While treaties are generally in written form, there are writers who hold that even
an oral agreement can be binding. However, only written agreements that are new, come
under the provisions of the Vienna Convention.
No particular form is prescribed. Thus, it was held that the exchange of notes
between the two heads of state was considered an international agreement in Qatar v.
Bahrain.
What are the functions of treaties?
There are four important functions that treaties perform, according to
Schwarzenberger, to wit:
1. Treaties enable parties to settle finally actual and potential conflicts.
2. They make it possible for the parties to modify the rules of international
customary law by means of optional principles or standards.
3. They may lead to a transformation of unorganized international society into one
which may be organized on any chosen level of social integration.
4. They frequently provide the humus for the growth of international customary
law.

Treaties are sources of international law, they serve as the charter of international
organizations, they are used to transfer territory, regulate commercial relations, settle
disputes, protect human rights, guarantee investments, etc.
What are the kinds of treaties classified from the standpoint of their relevance as
source of international law?
The following are the kinds of treaties:
1. Multilateral treaties
- These are treaties open to all states of the world. They create norms which
are the basis for a general rule of law. They are either codification treaties
or “law-making” treaties or they may have the character of both.

2. Treaties that create a collaborative mechanism

20
 - These can be of universal scope (e.g. regulation of allocation of radio
frequencies) or regional (e.g. fishing agreements). They operate through
the organs of the different states.

3. Bilateral treaties
- This is the largest category of treaties. Many of these are in the nature of
contractual agreements which create shared expectations such as trade
agreements of various forms. They are sometimes called “contract
treaties.”

What are the essential requisites of a valid treaty?

To be valid, a treaty must: be entered into by parties with the treaty-making
capacity; through their authorized representatives; without the attendance of duress,
fraud, mistake, or other vice of consent; on any lawful subject-matter in accordance with
their respective constitutional processes. Thus, the following are the essential requisites
of a valid treaty:
1. Treaty-making capacity

All states have full treaty-making capacity unless limited by reason of their
status or by previous self-imposed inhibitions.
The protectorate is restricted in the control of its external affairs by the
protector-state; a neutralized state may not agree to a defensive or offensive
alliance.
However, there are instances, when even mere colonies have been allowed
to sign treaties or join international conferences as full-fledged members along with
sovereign states.
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.

What is the legal effect of a treaty concluded by an organ of the state without
constitutional authority to undertake this function?

21
 The Harvard Research on International Law declared that, “A state is not
bound by a treaty made in its behalf by an organ or authority not competent under
the law to conclude the treaty; however, a state may be responsible for an injury
resulting to another state for reasonable reliance by the latter upon a
representation that such organ or authority was competent to conclude the treaty.”
This view is disputed by writers such as Hackworth, Hyde and Willoughby.
McNair wrote that if a party negotiating a treaty produces an authorization
which appears to be complete and regular although in fact constitutionally
defective, “the other party, if it is ignorant and reasonably ignorant of the defect, is
entitled to assume that the instrument is in order and to hold the former to the
obligation of the latter.”
3. Freedom of consent

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

would an ordinary contract.
With regard to the effect of duress to the validity of treaty, Lauterpacht stated a
rule to the effect that, “The position has now probably changed insofar as war has
been prohibited by the charter of the UN and the General Treaty for the
Renunciation of War. The state which has resorted to war in violation of its
obligations under these instruments cannot be held to apply force in a manner
permitted by law. Accordingly, duress in such cases must, it is submitted, be
regarded as vitiating the treaty.”
4. Lawful Subject-Matter

Treaties with unlawful subject-matter and purposes are regarded as null and
void.
5. Compliance with constitutional processes

The treaty-making process is governed by IL except with respect to the method

of ratification as required by the municipal law of most states at present. Non-
compliance with this requisite will prevent enforcement of the treaty even if already
signed by the authorized negotiators.

Treaty-making Process
What are the usual steps in the treaty-making process?
They are: negotiation, signature, ratification and exchange of the instruments of
ratification. The treaty may then be submitted for registration and publication under the
UN Charter, although this step is not essential to the validity of the agreement as between
the parties.

22
 Negotiation may be undertaken directly of head of state but he may assign this
task to his authorized representatives who are provided with credentials known as full
powers. It is standard practice for one of the parties to submit a draft of the proposed
treaty which, together with the counter-proposals, becomes the basis of the subsequent
negotiations. The negotiations may be brief or protracted, depending on the issues
involved, and may even “collapse” in case the parties are unable to come to an agreement
on the points under consideration.
When is a person considered as representing a State for the purpose of adopting
or authenticating the text of a treaty or for the purpose of expressing the consent
of the State to be bound by a treaty?
He is considered as representing the State for said purposes if:
1. He produces appropriate plein pouvoir (full powers); or,

2. It appears from the practice of the States concerned or from other

circumstances that their intention was to consider that person as representing
the State for such purposes and to dispense with full powers (Article 7{1},
Vienna Convention).

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:
1. 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;

2. 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,

3. 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).

If and when the negotiators finally decide on the terms of the treaty, the same is
opened for signature. This step is intended as a means of authenticating the instrument
and for the purpose of symbolizing the good faith of the parties. However, it does not
indicate the final consent of the state in cases where ratification of the treaty is required.
The document is ordinarily signed in accordance with the alternat, that is, each of the
several negotiators is allowed to sign first on the copy which he will bring home to his own
state.
What are the means of expressing consent to be bound by a treaty under the Vienna
Convention?

23
 The consent of a State to be bound by a treaty may be expressed by signature,
exchange of instruments constituting a treaty, ratification, acceptance, approval or
accession, or by any other means if so agreed (Article 11, Vienna Convention).
Ratification is 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.
While most treaties now expressly provide that they shall be subject to ratification
according to the constitutional processes of the negotiating states, the weight of authority
is that the requirement would still hold true even without a provision to this effect in the
instrument. Thus, in the absence of a stipulation to the contrary, and more so if ratification
is expressly required, an unratified treaty cannot be a source of obligations between the
parties.
What is the legal effect of an act relating to the conclusion of a treaty performed by
a person who cannot be considered under Article 7 of the Vienna Convention as
authorized to represent a State for that purpose?
It is without legal effect unless afterwards confirmed or ratified by that State (Article
8, Vienna Convention).
What is 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.
What if the treaty is ratified in violation of the constitution of the ratifying state, as
when it has not previously received the required approval of the legislature?
The majority view on this question is that “foreign governments should be held to
a knowledge of the constitutional prerequisites for ratification in each country with which
they are dealing; and that a treaty which has been ratified without proper observance of
these requisites is ipso facto invalid, whatever the proclamation of the head of the state
may assert in that respect” (Fenwick,436).
Is there a legal obligation to ratify a treaty?
There is none but the refusal to ratify must be based on substantial grounds and
not on superficial or whimsical reasons otherwise the other state would be justified in
taking offense.

24
 At times, to avoid total rejection of a treaty, the ratification is qualified or made
conditional, i.e. with reservations, in which event the same must be accepted by the other
party if these would constitute a modification of the original agreement.
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:
1. The reservation is prohibited by the treaty;

2. The treaty provides that only specified reservations, which do not include the
reservation in question, may be made; or,

3. In cases not falling under sub-paragraphs (a) and (b), the reservation is
incompatible with the object and purpose of the treaty.

Under the Philippine Constitution, who has the power to ratify treaties?
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.
For that matter, it is competent for the President to refuse to submit a treaty to the
Senate or, having secured its consent for its ratification, to refuse to ratify it. But as a rule,
he cannot ratify a treaty without the concurrence of two-thirds of all members of the
Senate.
The last step in the treaty-making process is the exchange of the instruments of
ratification, which usually also signifies the effectivity of the treaty unless a different date
has been agreed upon by the parties.
Where ratification is dispensed with and no effectivity clause is embodied in the
treaty, the instrument is deemed effective upon its signature.
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.

25
 Nevertheless, the treaty does not cease to be binding between the parties and may
be the basis of a litigation before some other arbitral or judicial body not connected with
UN.

Binding Effect of Treaties

Who are bound by treaties?
A treaty is binding only on the contracting parties, including not only the original
signatories but also other states which, although they may not have participated in the
negotiation of the agreement, have been allowed by its terms to sign it later by a process
known as accession.
Non-parties are usually not bound under the maxim pacta tertiis nec nocent nec
prosunt.
What are the instances when third states may be validly held to the observance of
or benefit from the provisions of a treaty?
The following are the instances:
1. The treaty may be merely a formal expression of customary international law
which, as such, is enforceable on all civilized states because of their
membership in the family of nations. Ex.: Hague Conventions of 1899 and 1907

2. It is provided under Article 2 of the UN Charter that the Organization “shall

ensure that non-member States act in accordance with the principles of the
Charter so far as may be necessary for the maintenance of international peace
and security,” and under Article 103 that the obligations of member-states shall
prevail in case of conflict with “any other international agreement,” including
those concluded with non-members.

3. The treaty itself may expressly extend its benefits to non-signatory states, such
as the Hay-Pauncefote Treaty of 1901, which, although concluded only by the
US and Great Britain, opened the Panama Canal “to the vessels of commerce
and war of all nations observing these Rules, on terms of entire equality.”

What is the “most-favored-nation clause”?

It is by which parties to apparently unrelated treaties may also be linked. Under
such clause, a contracting state entitled to most-favored-nation treatment from the other
may claim the benefits extended by the latter to another state in a separate agreement.
Illustration: If X agrees to extend most-favored-nation treatment to Y and
thereafter grants tariff preferences to Z under another treaty, Y will be entitled, by virtue
of its treaty with X, to enjoy the same advantages conceded to Z.

26
Interpretation and Observance of Treaties
How are treaties interpreted?
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:
1. Specific provisions must be read in light of the whole instrument and especially
of the purposes of the treaty.

2. 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.

3. Doubts should be resolved against the imposition of obligations and in favour

of the freedom and sovereignty of the contracting parties.

4. At all events, an interpretation that will lead to an absurdity is to be avoided and

a more rational result preferred.

5. 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.
Willful disregard of a treaty is frowned upon by the society of nations and is likely
to stigmatize the erring state, especially if the other contracting parties see fit to invoke

27
the influence of world opinion as a means of enforcing compliance. Violations of treaties
can lead to more drastic consequences, including war.
What may a State do when its constitution conflicts with a treaty?

The State may:

1. Ask for revision of the treaty;
2. Amend its constitution to make it conform to the treaty requirement; and,
3. Pay damages to the other parties for its inability to comply with its
commitments.

What is the doctrine of rebus sic stantibus?

It is the equivalent exception to the maxim pacta sunt servanda. Jessup said that
“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.”

Illustration: If State A and State B agree upon a reciprocal use of their respective
port facilities and B’s only important port is thereafter ceded to State C, A should be
released from continuing to accord the treaty privileges to B, which is no longer able to
perform its obligation.

What are the limitations to which the doctrine of rebus sic stantibus is subject to?
They are as follows:
1. It applies only to treaties of indefinite duration;
2. The vital change must have been unforeseen or unforeseeable and should not
have been caused by the party invoking the doctrine;
3. The doctrine must be invoked within a reasonable time; and
4. It cannot operate retroactively upon the provisions of the treaty already
executed prior to the change of circumstances.

Invalidation, Amendment and Modification, Suspension and

Termination of Treaties
What are the usual grounds for invalidation of treaties?
The usual ground for invalidation of contracts can also invalidate a treaty: error of
fact, fraud, corruption or duress. A violation of jus cogens (a peremptory norm of general
international law) invalidates a treaty (Article 53, Vienna Convention).
When may a State invoke error in a treaty as invalidating its consent to be bound?

28
 It may be invoked if the error relates to a fact or situation which was assumed by
that State to exist at the time when the treaty was concluded and formed an essential
basis of its consent to be bound by the treaty.
When can a State lose the right to assert the invalidity of a treaty?
If after becoming aware of the facts:
1. it shall have expressly agreed that the treaty is valid or remains in force or
continues in operation, as the case may be; or
2. it must by reason of its conduct be considered as having acquiesced in the
validity or in its maintenance in force or in operation.

A state, moreover, with limited exception, may not plead its municipal law as a
ground for invalidating a treaty that has been entered.
What is the difference between amendment and modification?
Amendment is a formal revision done with the participation, at least in its initial
stage, by all the parties to the treaty while modification involves only some of the parties.
How are treaties amended?
A “treaty may be amended by agreement of the parties.” The procedure that is
followed is the same as that for the formation of treaties (Article 39, Vienna Convention).
How are treaties modified?
Article 41 of the Vienna Convention provides that:
1. Two or more of the parties to a multilateral treaty may conclude an agreement
to modify the treaty as between themselves alone if:

a. The possibility of such modification is provided for by the treaty; or

b. The modification in question is not prohibited by the treaty and:

i. Does not affect the enjoyment by the other parties of their

rights under the treaty or the performance of their obligations;

ii. Does not relate to a provision, derogation from which is

incompatible with the effective execution of the object and
purpose of the treaty as a whole.

2. Unless in a case falling under paragraph 1(a), the treaty otherwise provides
that the parties’ intention to conclude the agreement and of the modification to
the treaty for which it provides.

How may treaties be terminated?

29
Treaties may be terminated in any of the following ways:
1. By expiration of the term, which may be fixed or subject to a resolutory
condition.

2. By accomplishment of the purpose

3. By impossibility of performance.

4. By loss of the subject-matter.

5. By desistance of the parties, through express mutual consent; desuetude, or

the exercise of the right of denunciation (or withdrawal), when allowed.

6. By novation.

7. By extinction of one of the parties if the treaty is bipartite.

8. By vital change of circumstances under the doctrine of rebus sic stantibus.

9. 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.

10. By voidance 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.

What is material breach of treaty? May it lead to the termination or suspension of

the operation of the treaty?
A material breach of a treaty, consists in:
a. A repudiation of the treaty not sanctioned by the present convention; or

b. The violation of a provision essential to the accomplishment of the object or

purpose of the treaty (Article 60, Vienna Convention).

A material breach of a bilateral treaty by one of the parties entitles the other to
invoke the breach as a ground for terminating the treaty or suspending its operation in
whole or in part.
A material breach of a multilateral treaty by one of the parties entitles:
a. The other parties by unanimous agreement to suspend the operation of the
treaty in whole or in part or to terminate it either:

i. In the relations between themselves and the defaulting State, or

30
 ii. As between all the parties.

b. A party specially affected by the breach to invoke it as a ground for suspending

the operation of the treaty in whole or in part in the relations between itself and
the defaulting State;

c. Any party other than the defaulting State to invoke the breach as a ground for
suspending the operation of the treaty in whole or in part with respect to itself
if the treaty is of such a character that a material breach of its provisions by one
party radically changes the position of every party with respect to the further
performance of its obligations under the treaty (Sections 1 & 2, Article 60,
Vienna Convention).

Who has the authority to terminate the treaty?

Logically, the authority to terminate should also belong to the one who has the
authority to enter into the treaty.

Succession to Treaties
When one State ceases to exist and is succeeded by another on the same territory,
is the new State bound by the commitments made by its predecessor?
Article 16 of the 1978 Vienna Convention on the Succession of States with Respect
to Treaties that entered into force on November 6, 1996, provides:
A newly independent State is not bound to maintain in force, or to become
a party to, any treaty by reason only of the fact that at the date of the
succession of States the treaty was in force in respect of the territory to
which the succession of States relates.
This is the so-called “clean slate” rule. This rule, however, does not apply to
treaties affecting boundary regimes. Article 11 provides that a succession of States does
not as such affect:
a. a boundary established by a treaty; or,
b. obligations and rights established by a treaty and relating to the regime
of a boundary.

31
 CHAPTER 5

STATES AS SUBJECT OF INTERNATIONAL

LAW
How can subject and object of international law be distinguished?

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

Commencement of existence
What are the qualifications that make an entity a state as enumerated in the
Montevideo Convention of 1933 on Rights and Duties of States?
The Montevideo Convention of 1933 on Rights and Duties of States contains
the traditional statement of the characteristics which make an entity a state. Thus, “The
state as a person of international law should possess the following qualifications: a) a
permanent population; b) a defined territory; c) government; d) the capacity to enter into
relations with other States.”
Hence, Philippines writers define “state” as a community of persons more or less
numerous, permanently occupying a definite portion of territory, independent of external
control, and possessing an organized government to which the great body of inhabitants
render habitual obedience (Bernas, 2009).
How are states created?
An entity acquiring the four essential elements of people, territory, government and
sovereignty is regarded in law as having achieved the status of a state and may be treated
as an international person. The generally accepted methods by which this status is

32
acquired are revolution, unification, secession, assertion of independence, agreement
and attainment of civilization. The US was created as a result of the revolution against
British rule of the thirteen original colonies that first formed a confederation in 1781 and
then a federation in 1789. The state of Italy grew out of the unification of the independent
city states of Sardinia, Florence, Naples, Rome and others in 1870 under the so-called
“principle of nationalities.” Bangladesh became a separate state when it seceded from
Pakistan in 1971. The Philippines became a state by assertion of its independence
following the formal withdrawal therefrom of American sovereignty in 1946. The
Kingdom of the Netherlands was created by the Congress of Vienna of 1815, and
Poland, more recently, was revived as a separate state by agreement of the victorious
powers after WWII. Japan became an international person by attainment of civilization
(Cruz,2000).
What are the elements of a state?
The following are the elements of a state:
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.

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 (Cruz, 2000).

May a state exist without the control of an effective government?

No, it must have an effective government that is able to carry out its duties and
able to assert itself without the aid of foreign troops. Exceptions:
1. A state may temporarily lack an effective government as a result of civil war, newly
gained independence or similar upheavals;

33
 2. A simple change in regime and even conflicting claims of governmental authority
alone will not disqualify an entity from statehood;

3. A state occupied by an enemy in times of war continues to be a state as long as

allies are fighting on its behalf against its enemy (Malone, 47; Sarmiento, 2007).

How are de facto and de jure government distinguished?

A de jure government is lawfully in power even though it retains little actual power.
Conversely, a de facto government is impliedly a government which is in control but
illegally so (Sarmiento, 2007).
What are the three kinds of de facto government?
The following are the three kinds of government:
1. Government de facto is that government that gets possession and control of, or
usurps, by force or by the voice of the majority, the rightful legal government and
maintains itself against the will of the latter, such as the government of England
under the Commonwealth, first by Parliament and later by Cromwell Protector;

2. Government of paramount force which is established and maintained by military

forces who invade and occupy a territory of the enemy in the course of war, as the
cases of Castine, in Maine, which was reduced to British possession in the war of
1812, and Tampico, Mexico, occupied during the war with Mexico by the troops of
the US;

3. That established as an independent government by the inhabitants of a country

who rise in insurrection against the parent state, such as the government of the
Southern Confederacy in revolt against the Union during the war of secession (Co
Kim Cham v. Valdez Tan Keh and Dizon, 75 Phil 113; Sarmiento, 2007).

How can nation be distinguished from state?

Though used popularly as synonymous with state, nation was restricted by many
writers to mean a body of people more or less of the same race, language, religion and
historical traditions (Fenwick, 104; Sarmiento, 2007).
How are states classified?
States may be classified as follows:
1. Sovereign states refer to those enjoying full membership in the international
community. They exercise undivided authority over all persons and property within
its borders and are independent of direct control by any other power (Fenwick,
106).

34
2. Neutralized states refer to those upon which the status of permanent neutrality in
all future wars was formally imposed by a group of great powers. Examples:
Switzerland under the Article 84 of the 1815 Treaty of Vienna; Belgium under
Article 7 of the 1839 Treaty of London (Fenwick, 107-108).

3. Dependent states refer to those that have practically complete control of their
domestic affairs, while being dependent upon another state in respect of their
control over their relations with third states (Fenwick, 115).

a. Vassal states or states under suzerainty refer to those subjects to a bond of

vassalage and were in respect to their foreign affairs dependent upon their
suzerain state, to which they pay a formal homage. Romania was a vassal
state subject to the suzerainty of Turkey from 1829 to 1878 (Ibid).

b. Protectorates are states which have, by formal treaty, placed itself under the
protection of a stronger power, surrendering to the latter control over its foreign
affairs. Morocco came under the protection of France and Germany in 1906
until 1911 while Ethiopia came under the protection of Great Britain, France
and Italy in 1906 (Fenwick, 119).

4. Confederation and unions are those states which are associated for certain
specific purpose.

a. Real union is a special form of confederation which exists when two or more
severally sovereign states have the same monarch and for international
purposes act as one state. Some examples are the Union of Sweden and
Norway until its dissolution in 1905 by the Treaty of Karlstad; Union of Austria
and Hungary from 1867 to 1918; Union of Denmark and Iceland from 1918 to
1944 (Fenwick, 121),

b. Federal state is a union of states in which the control of the external relations
of all the member states has been permanently surrendered to a central
government so that only state which exists for international purposes is the
state formed by the union. Examples are USA and Swiss confederation (Brierly,
120).

c. Confederation is a union of states in which, though a central government exists

and exercises certain powers, it does not control the external relations of the
member states, and therefore for international purposes there exists not one
but a number of states. Examples are US from 1778 to 1787 and the German
Confederation from 1820 to 1866 (Ibid.) [Sarmiento, 2007].

35
What determines the capacity of states?
An entity possessed with the requisite elements is ordinarily regarded as an
international person entitled to membership in the family of nations so long as it is
recognized by other states and it does not possess restricted capacity on account of either
treaty obligations or its limited resources (Cruz, 2000).
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) [Cruz, 2000].
How may a state be extinguished?
The radical impairment or actual loss of one or more of the essential elements of
the state will result in its extinction (Ibid).
What is the concept of succession of states?
In the event that a state is extinguished or is created as a result of any of the
methods, state succession takes place when one state assumes the rights and some of
the obligations of another because of certain changes in the condition of the latter (Ibid).
What are the two kinds of state succession?
There is universal succession when a state is annexed to another state or is
totally dismembered or merges with another state to form a new state. In all of these
cases, the international personality of the former state is completely absorbed by the
successor. Partial succession takes place when a portion of the territory of a state
secedes or is ceded to another or when an independent state becomes a protectorate or
a suzerainty or when a dependent state acquires full sovereignty (Ibid).
What are the consequences of state succession?
The following are the consequences of state succession:
1. The allegiance of the inhabitants of the predecessor state in the territory affected
is transferred to the successor state.
2. Inhabitants are naturalized en masse as when Philippine citizenship was conferred
on the inhabitants in general of the Philippine Islands under the provisions of the treaty
of cession between Spain and the US.
3. The political laws of the former sovereign are automatically abrogated and may be
restored only by a positive act on the part of the new sovereign. But, non-political
laws, such as those dealing with familial relations, are deemed continued unless they
are changed by the new sovereign or are contrary to the institutions of the successor
state.

36
 4. Treaties of a political and even commercial nature, as well as treaties of extradition,
are also discontinued, except those dealing with local rights and duties, such as those
establishing easements and servitudes. Sometimes the successor state stipulates in
appropriate treaties or by formal proclamation the international commitments it is
willing to respect.
5. All the rights of the predecessor state are inherited by the successor state but this
is not so where liabilities are concerned. The successor state, in fact, can determine
which liabilities to assume and which to reject solely on the basis of its own discretion.
Generally, contractual and tort liabilities do not devolve on the successor state,
although there certainly is nothing to prevent it from assuming them (Cruz, 2000).
What is the concept of succession of governments?
There is succession of governments, where one government replaces another
either peacefully or by violent methods. In both instances, the integrity of the state is not
affected; the state continues as the same international person except only that its lawful
representative is changed. Questions of succession will, therefore, involve only the
former and subsequent governments and third parties which may be affected by their
relations (Cruz, 2000).
What are the consequences of succession of governments?
The following are the consequences of succession of governments:
1. The rights of the predecessor government are inherited, in toto by the
successor government.
2. Where the new government was organized by virtue of a constitutional reform
duly ratified in a plebiscite, the obligations of the replaced government also are
completely assumed by the former. Where the new government was
established through violence, as by a revolution, it may lawfully reject the purely
personal or political obligations of the predecessor government but not those
contracted by it in the ordinary course of official business (Cruz, 2000).
What are the fundamental rights of states?
The following are the fundamental rights of states:
1. Independence 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. 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 (Bernas, 2009).
What are the two kinds of independence?

37
 They are internal independence or right of national self-government and external
independence. The former refers to the supreme authority or jurisdiction of the state to
control all persons or property within its territorial domain. The latter 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.
What is the right to self-determination?
Sovereignty or independence from outside control is related but not identical with
the concept of the right to self-determination. The various levels of claims to self-
determination may be broken into two main categories: first is the establishment of new
states – that is the claim by a group within an established state to break away and form
a new entity. Second, 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.
International Law has not recognized a right of secession from a legitimate existing
state (Bernas, 2009).
2. Equality refers to equality of legal rights irrespective of the size or power of the
state.(Ibid)
What is the 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 (Sarmiento,
2007).
What are the consequences that follow from the above doctrine?
Oppenheim enumerates four consequences that follow from the doctrine of
equality of states:
a. When a question arises, which has to be settled by consent, every state has a right
to a vote and to one vote only.
b. The vote of the weakest state has as much weight as the vote of the most powerful;
c. No state can claim jurisdiction over another; and,
d. 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 [Oppenheim, International Law, 6th Ed., Vol.1, p.238] (Sarmiento,
2007).
3. The theory of the right to peaceful co-existence was elaborated in 1954 as the Five
Principles of Co-existence by India and China and includes mutual respect for each
other’s territorial integrity and sovereignty, mutual non-aggression, non-interference
in each other’s affairs and the principle of equality. This has also been expressed in

38
 other documents such as the 1970 Declaration on Principles of International Law
Friendly Relations and Cooperation Among States (Bernas, 2009).
What are the duties of states?
1. To refrain from intervention in the internal or external affairs of any other state (Art.
3).

2. To refrain from fomenting civil strife in the territory of another state, and to prevent
the organization within its territory of activities calculated to foment such civil strife
(Art. 4).

3. To treat all persons under its jurisdiction with respect for human rights and
fundamental freedoms, without distinction as to race, sex, language, or religion (Art.
6).

4. To ensure that conditions prevailing in its territory do not menace international peace
and order (Art. 7).

5. To settle its disputes with other States by peaceful means in such a manner that
international peace and security, and justice, are not endangered (Art. 8).

6. To refrain from resorting to war as an instrument of national policy, and to refrain

from the threat or use of force against the territorial integrity or political
independence of another State, or in any other manner inconsistent with
International Law and order.

7. To refrain from giving assistance to any State which is acting in violation of Article 9,
or against which the UN is taking preventive or enforcement action (Art.10).

8. To refrain from recognizing any territorial acquisition by another State acting in

violation of Article 9 (Art.11).

9. To carry out in good faith its obligations arising from treaties and other sources of
International Law, and it may not invoke provisions in its constitution or its laws as
an excuse for failure to perform this duty (Art. 13).

10. To conduct its relations with other States in accordance with International Law and
with the principle that the sovereignty of each State is subject to the supremacy of
International Law (Art. 14) [Sarmiento, 2007].

What are some incomplete subjects of International Law?

The following are some incomplete subjects:

39
1. Protectorates are dependent states which have control over their internal affairs but
whose external affairs are controlled by another state. They are sometimes referred
to as autonomous states, vassal states, semi-sovereign or dependent states.
2. Federal state is a union of previously autonomous entities. It may be an
arrangement that may involve placing full authority in a central organ while another
arrangement might lodge authority in the individual entities to the detriment of the
central organ. The central organ will have personality in international law; but the
extent of international personality of the component entities can be a problem.
3. Mandated and trust territories - Mandated territories were territories placed by the
League of Nations under one or other of the victorious allies of World War I. The
mandate system was replaced by the trusteeship system after World War II under
the Trusteeship Council. The Carolines, Marianas and Marshall Islands were placed
under the trusteeship of the US. These have been in the process of evolution and
self-determination since 1986.
4. Taiwan seems to be a non-state territory which de jure is part of China. But it is too
affluent and strategically located to be overlooked by international actors. It is
interesting that when Taiwan sought accession to the GATT treaty it did not do so as
a state but as part of a “customs territory.”
5. The Sovereign Order of Malta has diplomatic relations with over forty states. There
was a time when the order had sovereignty over Malta. This has since been lost but
the Italian Court of Cassation in 1935 recognized its international personality.
6. The Holy See and Vatican City. IN 1929, the Lateran Treaty was signed with Italy
which recognized the state of the Vatican City and "the sovereignty of the Holy See
in the field of international relations as an attribute that pertains to the very nature of
the Holy See, in conformity with its traditions and the demands of its mission in the
world.” It has no permanent population (Bernas, 2009).

40
 CHAPTER 6

OTHER SUBJECTS OF INTERNATIONAL

LAW
What are 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. The constituent document of international organizations therefore
is a treaty. For this reason, only states are members of international organizations.
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 (Bernas, 2009).
What is the League of Nations?
It was an international organization created after World War 1 (WW1). It was
established after the Paris Peace Conference of 1919 which was organized by the victors
of First World War to negotiate peace treaties between the Allied and Associated Powers
and the defeated Central Powers. The Covenant establishing the League was part of the
Treaty of Versailles. The League of Nations formally came into existence on January 10,
1920 with headquarters at Geneva, Switzerland. Its organization included the Council,
the Assembly and the Secretariat. Autonomous but closely connected to the League of
Nations were the Permanent Court of International Justice and the International Labor
Organization (Sarmiento, 2007).
What factors led to its demise?
The outbreak of the Second World War was the immediate cause of its demise.
Other factors are:
1. While it was supported by US President Woodrow Wilson, the US Senate did
not ratify the Versailles Treaty mainly objecting to Article 16 that says in part:
“Should any member of the League resort to war in disregard of its
covenants, it shall ipso facto be deemed to have committed an act of war
against all other members of the League xxx. It shall be duty of the Council

41
 in such case to recommend to the several governments concerned what
effective military, naval, or air force the members of the League shall
severally contribute to the armed forces to be used to protect the
covenants of the League.”
2. The League was generally weak because even the military sanctions that may
be taken pursuant to the second sentence of Article 16 were not considered to
be legally binding obligations.
3. Difficulty of the Council in enacting resolutions because of the required
unanimous vote of all its members, so conclusive and effective action was
difficult, if not impossible (Sarmiento, 2007).
What is the United Nations Organization?
The United Nations (UN) is a public organization of states that was established by
the intergovernmental cooperation after the end of World War II (WWII). It was
established on October 24, 1945 by 51 countries as an outcome of the initiatives taken
by the US, USSR, Great Britain and China (Ibid).
Does the UN have juridical personality?
Yes, the UN shall possess juridical personality. It shall have the capacity: a) to
contract; b) to acquire and dispose of immovable and movable property; and c) to institute
legal proceedings (Article 1, Convention on the Privileges and Immunities of the UN)
[Sarmiento, 2007].
What is the legal capacity of the UN in the territory of its Members?
The UN shall enjoy in the territory of each of its Members such legal capacity as
may be necessary for the exercise of its functions and the fulfilment of its purposes (Article
104, UN Charter) [Ibid].
What is the UN charter?
The UN Charter is a lengthy document consisting of 111 articles besides the
Preamble and the concluding provisions. It also includes the Statute of the International
Court of Justice (ICJ) which is annexed to and made an integral part of it.
The Charter may be considered a treaty because it derives its binding force from
the agreement of the parties to it. It may also be regarded as a constitution in so far as it
provides for the organization and operations of the different organs of the UN and for the
adoption of any change in its provisions through a formal process of amendment (Cruz,
2000).
Is the UN Charter applicable only to UN members?
The Charter is intended not only to the members but also to non-member states
“so far as may be necessary for the maintenance of international peace and security”
(Ibid).

42
What is the principle of Charter Supremacy?
In the event of conflict between the obligations of the members of UN under the
Charter and their obligations under any other international agreement, their obligations
under the Charter shall prevail (Article 103, UN Charter) [Sarmiento, 2007].
How may amendments to the Charter come into force?
Amendments to the Charter shall come into force when they have been adopted
by a vote of two-thirds of the members of the General Assembly and ratified in accordance
with their respective constitutional processes by two-thirds of the members of the UN,
including all the permanent members of the Security Council (Article 108, UN Charter).
What is the Preamble to the Charter?
It introduces the Charter and sets the common intentions that moved the original
members to unite their will and efforts to achieve their common Purposes (Cruz, 2000).
What are the Purposes of UN?
According to the UN Charter, it has four purposes: to maintain international peace
and security, to develop friendly relations among nations, to cooperate in solving
international problems and in promoting respect for human rights and to be a center for
harmonizing the actions of nations (Article 1, UN Charter) [Ibid].
What are the Principles of UN?
Under Article 2 of the Charter, the Principles deal with the methods and the
regulating norms according to which the UN and its members shall discharge their
obligations and endeavor to achieve their common ends. The seven cardinal principles
are the following:
1. The organization is based on the principle of the sovereign equality of all its
Members.
2. All Members, in order to ensure to all of them the rights and benefits resulting
from membership, shall fulfill in good faith the obligations assumed by them in
accordance with the present Charter.
3. All Members shall settle their international disputes by peaceful means in such
a manner that international peace and security, and justice, are not
endangered.
4. All members shall refrain in their international relations from the threat or use
of force against the territorial integrity or political independence of any state, or
in any other manner inconsistent with the Purposes of the United Nations.
5. All Members shall give the UN every assistance in any action it takes in
accordance with the present Charter and shall refrain from giving assistance to
any state against which the UN is taking preventive or enforcement action.

43
 6. The Organization shall ensure that states which are not Members of the UN act
in accordance with these Principles so far as may be necessary for the
maintenance of international peace and security.
7. Nothing contained in the present Charter shall authorize the UN to intervene in
matters which are essentially within the domestic jurisdiction of any state or
shall require the Members to submit such matters to settlement under the
present Charter; but this principle shall not prejudice the application of
enforcement measures under Chapter VII (Cruz, 2000).
What are the classes of members in the UN?
They are the original and non-original members. The former refers to those states
which participated in the UN Conference on International Organization at San Francisco,
pre-signed the Declaration by the UN of January 1, 1942, signed and duly ratified the
Charter. There were 51 original members, including the Philippines. The latter refer to
those states which were admitted to membership by a decision of two-thirds majority vote
in the General Assembly upon the recommendation of a qualified majority in the Security
Council (Article 3, UN Charter) [Sarmiento, 2007].
What are the qualifications for membership in the UN?
Membership to UN is open to peace-loving states which accept the obligations
contained in the Charter and, in the judgment of the Organization, are able and willing to
carry out these obligations (Article 4, UN Charter,) [Ibid].
How is the admission of a State to the UN effected?
The admission of state to membership in the UN is effected by two-thirds majority
of the members voting and present in the General Assembly upon the recommendation
of a qualified majority in the Security Council (Section 18 {2}, Article 4, UN Charter) [Ibid].
May a member of UN be suspended?
Yes, a member against which preventive or enforcement action has been taken by
the Security Council may be suspended from the exercise of the rights and privileges of
membership by two-thirds majority of the members present and voting in the General
Assembly upon the recommendation of a qualified majority in the Security Council.
However, the member will not actually be suspended from its membership, but only from
the exercise of the rights and privileges of membership. The exercise of these rights and
privileges may be restored by the Security Council (Section 18 {2}, Article 5, UN Charter)
[Ibid].
May a member be expelled from the UN?
Yes, a member which has persistently violated the Principles contained in the
Charter may be expelled from the Organization by two-thirds majority of the members
present and voting in the General Assembly upon the recommendation of a qualified
majority in the Security Council (Section 18 {2}, Article 6, UN Charter)

44
Can members withdraw from UN?
No provision on withdrawal from membership was included in the Charter because
of the fear that it might encourage successive withdrawals that would weaken the
Organization. Nevertheless, the San Francisco Conference approved a special
committee report which, while not categorically permitting or prohibiting withdrawal,
expressed the view that a member might withdraw from the UN if:
a) the Organization was revealed to be unable to maintain peace or could do so
only at the expense of law and justice;
b) the member’s rights and obligations as such were changed by a Charter
amendment in which it had concurred or which it finds itself unable to accept; or
c) an amendment duly accepted by the necessary majority either in the General
Assembly or in a general conference is not ratified (Cruz, 2000).
What are the principal organs of the UN?
They are the General Assembly, Security Council, Economic and Social Council,
Trusteeship Council, ICJ and Secretariat.
What is the composition of the General Assembly (GA)?
It shall consist of all members of the UN, each of which is entitled to send not more
than five representatives and five alternates as well as such technical staff as it may need.
(Ibid)
How are the functions of the GA classified?
1. Deliberative – initiating studies and making recommendations toward the
progressive development of IL and its codification and recommending
measures for the peaceful adjustment of any situation which it deems likely to
impair the general welfare or friendly relations among nations.
2. Supervisory – receiving and considering annual and special reports from the
other organs of the UN, making recommendations for the coordination of their
various functions, and approving trusteeship agreements in non-strategic
areas.
3. Financial – consideration and approval of the budget of the Organization, the
apportionment of expenses among its members and the approval of financial
arrangements with specialized agencies.
4. Elective – election of the non-permanent members of the SC, all the members
of the Economic and Social Council, and some of the members of the
Trusteeship Council, as well as, in concurrence with the SC, the Secretary-
General and the judges of the ICJ.

45
 5. Constituent – admission of members and the amendment of the Charter of the
UN (Ibid).
What are the rules on voting in the GA?
Each member of the GA shall have one vote. However, a member which is in
arrears in the payment of its final contributions to the Organization shall have no vote if
the amount of its arrears equals or exceeds the amount of the contributions due from it
for the preceding two full years. But the GA may, nevertheless, permit such a member to
vote if it is satisfied that the failure to pay is due to conditions beyond the control of the
member (Articles 18 & 19, UN Charter).
Distinction is also made between “important questions” and all other questions.
Decisions on important questions shall be made by a two-thirds majority of the members
present and voting, while decisions on other questions shall be made by a majority of the
members present and voting. (Article 18, UN Charter) [Sarmiento, 2007]
What are the “important” questions that require two-thirds majority vote in the GA?
Important questions shall include:
1. Recommendations with respect to the maintenance of international peace and
security;
2. Election of non-permanent members of the Security Council;
3. Election of members of the UN Economic and Social Council (ECOSOC);
4. Election of members of the Trusteeship Council;
5. Admission of new members to the UN;
6. Suspension of the rights and privileges of membership;
7. Expulsion of members;
8. Questions relating to the operation of the trusteeship system;
9. Budgetary questions (Section 18 {2}, Article 18, UN Charter) [Sarmiento, 2007]
What is the Security Council?
It is the principal organ of the UN that has been conferred by the members of UN
with the primary responsibility for the maintenance of international peace and security.
(Article 24, UN Charter)
What is the composition of the Security Council (SC)?
The SC shall consist of 15 members. Five of these members are permanent
members (Republic of China, France, Russia, UK of Great Britain and Northern
Ireland, and the USA) and the other 10 are elected by the GA as non-permanent

46
members for a term of 2 years without eligibility for immediate reelection (Article 23, UN
Charter).
The presidency of the SC shall be held in turn by the members of the Council in
the English alphabetical order of their names. Each President shall hold office for one
calendar month (Rule 18, Provisional Rules of the SC) [Sarmiento, 2007].
Are the decisions of the SC binding on the members of the UN?
Under Art. 25 of the UN Charter, all members agree to accept and carry out the
decisions of the SC. While other organs of the UN make recommendations to
Governments, the SC alone has the power to take decisions which member States are
obligated to carry out.
Explain the Yalta Voting Formula?
It resulted from a compromise between the US, the Soviet Union and the UK at the
conference of Yalta in February 1945. This proposal subjected voting in the SC to
unanimity of the permanent members, both with regard to enforcement action and the
peaceful settlement of disputes, although in the latter case States party to the dispute
were obliged to abstain (Wouters, 5) [Sarmiento, 2007].
Under this formula, codified in Art 27, each member of the SC shall have one vote,
but distinction is made between the permanent members and the non-permanent
members in the resolution of non-procedural questions.
Procedural questions are to be decided by the affirmative vote of any nine or more
members. Non-procedural or substantive questions are to be decided by an affirmative
vote of nine members including the concurring votes of the permanent members. This is
the rule of “Great Power Unanimity”, often referred to as “Veto Power.”
Is the so-called “double veto” still in practice?
As the determination of whether a question is procedural or substantive is
considered as non-procedural, it allowed any permanent of the Council to exercise its
“veto power” twice, thus the practice known as “double veto”. A veto is first used to
establish that a given question is non-procedural, and then on the vote on the question
itself.
This procedural manipulation was soon overcome procedural maneuver. The
President of the Council could rule that the procedural/non-procedural question is itself
procedural and not subject to veto; presidential rulings in this regard are final unless
reversed by nine votes, with no state having a veto power (Sarmiento, 2007).
What is the composition and function of the Economic and Social Council?
It shall consist of 54 members elected by the General Assembly (Article 61, UN
Charter).

47
 It may make or initiate studies and reports with respect to international economic,
social, cultural, educational, health, and related matters and may make
recommendations with respect to any such matters to the General Assembly, to the
Members of UN, and to the specialized agencies concerned. It may also make
recommendations for the purpose of promoting respect for, and observance of, human
rights and fundamental freedoms for all, prepare draft conventions for submission to the
General Assembly and call international conferences on matters falling within its
competence (Article 62, UN Charter) (Ibid)
What is the Trusteeship Council (TC)?
It is the organ that is responsible for administering trusteeship territories that are
not yet self-governing. The TC shall consist of the following:
1. Members that are administering trust territories;
2. Permanent members of the SC;
3. As many other members as the GA may determine as may be necessary to
ensure that the total number of members of the TC is equally divided between
those Members of the UN which administer trust territories and those which do
not.
What are mandates and trust territories?
Mandates are colonies and territories which as a consequence of WWI have
ceased to be under the sovereignty of the States which formerly governed them and which
were inhabited by peoples not yet able to stand by themselves and placed under a system
of mandates under Article 22 of the Covenant of the League of Nations (Treaty of
Versailles).
Trust territories are those which have been placed under the international
trusteeship system established by Chapters 11-13 of the UN Charter that include:
a) territories held under mandate;
b) territories which maybe detached from enemy states as a result of WWII; and
c) territories voluntarily placed under the system by states responsible for their
administration.
What is the International Court of Justice (ICJ)?
It is the principal judicial organ of the UN and the successor of the Permanent
Court of International Justice (PCIJ) of the League of Nations. It functions in accordance
with its Statute that is annexed to the Charter of the UN and patterned upon the Statute
of the PCIJ (Article 92, UN Charter) [Sarmiento, 2007].
What is the primary function of the Court?

48
 The primary function of the Court is to decide international legal disputes submitted
to it by states in accordance with International Law.
Is being a party to the Statute of the ICJ tantamount to the acceptance of the
jurisdiction of the court?
Being party to the Statute, does not mean acceptance of the jurisdiction of the
Court. It simply means that the state may accept the jurisdiction of the court. The Statute
opens the court’s door to member states. Only states may be parties in the court (Bernas,
2009).
What is the cardinal rule in international courts?
The cardinal rule in international courts is that states cannot be compelled to
submit disputes to international adjudication unless they have consented to it either
before a dispute has arisen or thereafter. States are also free to limit their acceptance to
certain types of disputes and to attach various conditions or reservations to their
acceptance (Ibid).
What is an international legal dispute?
An international legal dispute is a disagreement between states on a question of
law or fact, a conflict, a clash of legal views or of interests (The Mavrommatis Palestine
Concessions, Greece v. Great Britain, August 30, 1924, PCIJ, Ser B, No.3, 1924).
Where is the seat of the ICJ? How many are its members? What is the term of their
office?
a. The Seat of the Court is at the Peace Palace in the Hague, Netherlands. This shall
not prevent the Court from sitting and exercising its functions elsewhere whenever
the Court considers it desirable (Article 22, ICJ Statute).
b. The Court shall consist of fifteen members, no two of whom maybe nationals of
the same state (Article 3, Ibid).
c. The members of the Court shall be elected for nine years and may be re-elected
(Article13, Ibid) [Sarmiento, 2007].
What are the qualifications of its members?
Members shall be independent judges, elected regardless of their nationality from
among persons of high moral character, who possess the qualifications required in their
respective countries for appointment to the highest judicial offices, or are jurisconsults of
recognized competence in International Law (Article 2, Ibid).
Do the members of the Court represent their governments?
No, the members of the Court do not represent their governments but are
independent magistrates (Article 2, Ibid).
Who may be parties to contentious cases?

49
 Only states may be parties in contentious cases before the Court (Article 34, Ibid)
Is the Court open to states that are not members of the UN?
Yes, but the conditions under which the Court shall be open to other states which
are not members of the UN shall, subject to the special provisions contained in treaties in
force, be laid down by the Security Council, but in no case shall such conditions place the
parties in a position of inequality before the court. When a state which is not a member
of the UN is a party to a case, the Court shall fix the amount which that party is to
contribute towards the expenses of the Court, except if such state is bearing a share of
the expenses of the Court (Article 34, Ibid).
Who may request for an advisory opinion?
Under Article 96 of the UN Charter, only the principal organs of the organization
and other specialized agencies, which may be so authorized by the General Assembly,
may request the ICJ to give an advisory opinion on any legal question (Sarmiento, 2007).
What are the preconditions before the ICJ may give advisory opinions?
They are as follows:
a. The advisory opinion must be requested by an organ duly authorized to seek it
under the UN Charter;
b. It must be requested on a legal function; and,
c. Except in the case of the General Assembly or the Security Council, that question
should be one arising within the scope of the activities of the requesting organ
(Application for Review of Judgment No. 273 of the UN Administrative Tribunal,
Advisory Opinion, ICJ Reports 1982) [Ibid].
What is the bearing of the lack of consent of States, parties to a dispute, on the
jurisdiction of the ICJ to give an advisory opinion?
The consent of States, parties to a dispute, is the basis of the Court’s jurisdiction
in contentious cases. However, the situation is different in regard to advisory proceedings
even where the Request for an Opinion relates to a legal question actually pending
between States. The Court’s reply is only an advisory character: as such, it has no binding
force.
It follows that no State, whether a member of the UN or not, can prevent the giving
of an advisory opinion which the UN considers to be desirable in order to obtain
enlightenment as to the course of action it should take.
The Court’s opinion is given not to the States, but to the organ which is entitled to
request it; the reply of the Court, itself an “organ of the UN’s, represents its participation
in the activities of the Organization, and in principle, should not be refused (Interpretation
of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, advisory Opinion,

50
ICJ Reports 1950, p. 71; See also Western Sahara, ICJ Reports 1975, p. 24, par.31)
[Ibid].
What is the legal status of advisory opinions of the ICJ?
In principle, the Court’s advisory opinions are consultative in character and are
therefore not binding as such on the requesting bodies. Certain instruments or
regulations can, however, provide in advance that the advisory opinion shall be binding
(Ibid).
What is the Secretariat?
It is the chief administrative organ of the United Nations and which is headed by
the Secretary-General. The Secretary-General is chosen by the General Assembly upon
recommendation of the Security Council. His term is fixed at five years by resolution of
the General Assembly, and he may be re-elected. (Article 97, UN Charter)
What are the functions of the Secretary-General?
The Secretary-General shall be the chief administrative officer of the UN. He shall
act in that capacity in all meetings of the General Assembly, of the Security Council, of
the Economic and Social Council, and of the Trusteeship Council, and shall perform such
other functions as are entrusted to him by these organs.
The Secretary-General shall make an annual report to the General Assembly on
the work of the Organization. He may also bring to the attention of the Security Council
any matter which in his opinion may threaten the maintenance of international peace and
security. (Articles 98 & 99, UN Charter)
What are the other agencies of UN?
These are the so-called specialized agencies which include: United Nations
Educational, Scientific and Cultural Organization (UNESCO); the International Civil
Aviation Organization (ICAO), the World Health Organization (WHO), the Food and
Agricultural Organization (FAO), the World Bank and the International Monetary Fund
(IMF).
What are regional organizations?
They are neither organs nor subsidiary organs of the UN. They are autonomous
international organizations having an institutional affiliation with the UN by concluding
agreements with the UN. They are international institutions created by international
agreements for the purpose of dealing with regional problems in general or with specific
matters be they economic, military or political. Example is the Association of Southeast
Asian Nations (ASEAN).
What is the ASEAN?
It is the regional organization of South East Asian nations and was established on
August 8, 1967 in Bangkok, Thailand with the signing of the Bangkok Declaration by the

51
5 original member countries namely Indonesia, Malaysia, Philippines, Singapore and
Thailand.
Brunei Darussalam joined the Association on January 8, 1984 while Vietnam
became the 7th member on July 28, 1995. Laos and Myanmar were admitted on July 23,
1997. Cambodia also became a member in 1999 (Bernas, 2009).
What are the 3 main objectives of the ASEAN Nations?
They are as follows:
a. To promote the economic, social and cultural development of the region through
cooperative programs;
b. To safeguard the political and economic stability of the region against big power
rivalry; and,
c. To serve as a forum for the resolution of intra-regional differences (Ibid).
What are the aims and purposes of the Association as stated in its Declaration?
They are as follows:
a. To accelerate economic growth, social progress and cultural development in the
region; and,
b. To promote regional peace and stability through abiding respect for justice and the
rule of law in the relationship among countries in the region and adherence to the
principles of the UN Charter (Ibid).
Enumerate the fundamental principles of the ASEAN.
The fundamental principles of the ASEAN as contained in the Treaty of Amity and
Cooperation in Southeast Asia are as follows:
a. Mutual respect for the independence, sovereignty, equality, territorial integrity, and
national identity of all nations;
b. The right of every State to lead its national existence free from external
interference, subversion or coercion;
c. Non-interference in the internal affairs of one another;
d. Settlement of differences or disputes by peaceful manner;
e. Renunciation of the threat or use of force; and,
f. Effective cooperation among themselves (Ibid).
What is the ASEAN Vision 2020?

52
 The ASEAN Vision 2020, adopted by the ASEAN Leaders on the 30th anniversary
of ASEAN, agreed on a shared vision of ASEAN as a concert of Southeast Asian Nations,
outward looking, living in peace, stability and prosperity, bonded together in partnership
in dynamic development and in a community of caring societies.
In 2003, the ASEAN leaders resolved that an ASEAN Community shall be
established comprising 3 pillars, namely:
a) ASEAN Security Community;
b) ASEAN Economic Community; and,
c) ASEAN Socio-Cultural Community
What is the ASEAN Regional Forum?
In recognition of security interdependence in the Asia-Pacific Region, ASEAN
established the ASEAN Regional Forum (ARF) in 1994. The ARF’s agenda aim to evolve
in three broad stages, namely the promotion of confidence building, development of
preventive diplomacy and elaboration approaches to conflicts.
The present participants in the ARF include: Australia, Brunei Darussalam,
Cambodia, Canada, China, European Union, India, Indonesia, Japan, Democratic
Republic of Korea, Republic of Korea, Lao PDR, Malaysia, Mongolia, Myanmar, New
Zealand, Pakistan, Papua New Guinea, the Philippines, the Russian Federation,
Singapore, Thailand, the US and Vietnam.
The ARF discusses major regional security issues in the region, including the
relationship amongst the major powers, non-proliferation, counter-terrorism, transnational
crime, South China Sea and the Korean Peninsula, among others.
What is the ASEAN Free Trade Area (AFTA)?
The AFTA which was launched in 1992, aims to promote the region’s competitive
advantage as a single production unit. The elimination of tariff and non-tariff barriers
among Member Countries is expected to promote greater economic efficiency,
productivity and competitiveness (Sarmiento, 2007).
What are International Administrative Bodies?
These are administrative bodies created by agreement among states which may
be vested with international personality when two conditions concur, to wit:
a) Their purposes are mainly non-political; and,
b) That they are autonomous or not subject to the control of any state.
Examples are the European Commission of the Danube and the Central Commission
for the Navigation of the Rhine (Cruz, 2000).

53
Insurgents
What is the 1977 Protocol II to the Geneva Conventions?
It is the first and only international agreement exclusively regulating the conduct of
parties in a non-international armed conflict. It “develops and supplements Article 3,
common to the Geneva Conventions of August 12, 1949 without modifying its existing
conditions or application” (Bernas, 2009).
What is a non-international armed conflict under Protocol II?
It is an armed conflict that takes place in the territory of a High Contracting Party
between its armed forces and dissident armed forces or other organized armed groups
which, under responsible command, exercise such control over a part of its territory as to
enable them to carry out sustained and concerted military operations and to implement
this Protocol (Article 1, Protocol II) [Ibid].
Does Protocol II apply to internal disturbance and tensions?
Article 1 provides that the “Protocol shall not apply to situations of internal
disturbances and tensions, such as riots, isolated and sporadic acts of violence and other
acts of a similar nature, as not being armed conflicts.” This holds true even if the armed
forces of the territory may have been called upon to suppress the disorder [Ibid].
What then are the requirements for the “material field of application” of Protocol
II?
They are as follows:
a) The armed dissidents must be under responsible command.
b) They must exercise such control over a part of its territory as to enable them to
carry out sustained and concerted military operations.
Does Protocol II apply to the conflict between Philippine government and the NDF
and its NPA and that between the government and the MNLF and MILF in
Mindanao?
No, considering that the government has been able to maintain consistently that
the NDF and its NPA have not crossed the threshold requiring control over the territory
and thus, what applies to them as well as the MNLF and MILF in Mindanao is Common
Article 3 and not Protocol II [Ibid].
What then is the status of the insurgent groups that satisfy the material field of
application of Protocol II?
These groups may be regarded as “para-statal entities possessing definite if
limited form of international personality” [Ibid].
What are the two specific attributes of this “personality”?

54
 They are as follows:
a) They are recognized as having belligerent status against the de jure government
thus other states are required to maintain neutrality regarding them.
b) They are seen as having treaty making capacity [Ibid].
What is Common Article 3?
It is an Article 3 common to all Geneva Conventions that assures the promulgation
of minimum protection to cover internal conflict. It says:
Art. 3. In the case of armed conflict not of an international character
occurring in the territory of one of the High Contracting Parties, each Party
to the conflict shall be bound to apply, as a minimum, the following
provisions:
1) Persons taking no active part in the hostilities, including members of the
armed forces who have laid down their arms and those placed hors de
combat by sickness, wounds, detention, or any other cause, shall in all
circumstances be treated humanely, without any adverse distinction
founded on race, color, religion or faith, sex, birth or wealth, or any other
similar criteria.
To this end, the following acts are and shall remain prohibited at any time
and in any place whatsoever with respect to the above-mentioned persons:
a) Violence to life and person, in particular murder of all kinds,
mutilation, cruel treatment and torture;
b) Taking of hostages;
c) Outrages upon personal dignity, in particular humiliating and
degrading treatment;
d) The passing of sentences and the carrying out of executions
without previous judgment pronounced by a regularly constituted
court, affording all the judicial guarantees which are recognized
as indispensable by civilized peoples.
2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red
Cross, may offer its services to the parties to the conflict.
The Parties to the conflict should further endeavor to bring into force, by means of
special agreements, all or part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the
Parties to the conflict [Ibid].

55
What does the last sentence of the Article 3 mean?
It means that the application does not convert the conflict into an international one
and therefore does not preclude the possibility that any participant in the conflict may be
prosecuted for treason. Further, although rebels have the protection of Common Article
3, they do not thereby gain the status of subjects of international law unless they satisfy
the “material field of application” of Protocol II [Ibid].
What are National Liberation Movements?
They are organized groups fighting in behalf of a whole people for freedom from
colonial powers. According to the First Protocol of the 1977 Geneva Convention, they
are “peoples (sic) fighting against colonial domination and alien occupation and against
racist regimes in the exercise of their right of self-determination, as enshrined in the
charter of the UN” [Ibid].
What are the characteristics of national liberation movements?
a. They can be based within the territory which they are seeking to liberate or they
might find a base in a friendly country
b. Although control over a territory and people is not essential to their legitimacy, the
ultimate goal of controlling a definite territory is necessary for them to be
recognized as international subjects.
c. They must have an organization capable of coming into contact with other
international organizations.
What is the status of Individuals in International Law?
Before, human beings were exclusively under the control of states. They were
mere objects or at best “beneficiaries” of international law. With the greater global
awareness of human rights individuals have now come to be recognized as possessing
albeit limited rights and obligations in international law. Antonio Cassese described this
status of individuals with reference to states, in international law, as follows:
To differentiate the position of individuals from that of States, it can be maintained
that while States have international legal personality proper, individuals have a
limited locus standi in international law. Furthermore, unlike States, individuals
have a limited array of rights and obligations: on this score, one can speak of a
limited legal capacity (in this respect they can be put on the same footing as other
non-State international subjects: insurgents, international organizations, and
national liberation movements).
What is Nationality? (Cruz, 2000)
It is the tie that binds an individual to his state, from which he can claim protection
and whose laws he is obliged to obey. It is membership in a political community with all
its concomitant rights and obligations.

56
What are the modes of acquisition of nationality?
They are as follows:
a) Birth
1) Jure soli where the individual acquires the nationality of the state where he is
born.
2) Jure sanguinis where the individual acquires the nationality of his parents.
b) Naturalization is a process by which a foreigner acquires, voluntarily or by
operation of law, the nationality of another state.
1) Direct naturalization which is effected through any of the following:
a. By individual proceedings, usually judicial, under general naturalization
laws;
b. By special act of the legislature, often in favor of distinguished foreigners
who have rendered some notable service to the local state;
c. By collective change of nationality (naturalization en masse) as a result of
cession or subjugation; and,
d. In some cases, by adoption of orphan minors as nationals of the state where
they are born.
2) Derivative naturalization in turn is conferred:
a. on the wife of the naturalized husband
b. on the minor children of the naturalized parent; and,
c. on the alien woman upon marriage to a national.
Derivative naturalization does not always follow as a matter of course, for it is
usually made subject to stringent restrictions and conditions.
What is multiple nationality?
It is the status where one individual finds himself in possession of more than one
nationality because of the concurrent application to him of the municipal laws of the states
claiming him as their national.
What is the doctrine of indelible allegiance?
Under this doctrine, an individual may be compelled to retain his original nationality
notwithstanding that he has already renounced or forfeited it under the laws of a second
state whose nationality he has acquired.
How may nationality be lost?

57
 It may be lost voluntarily or involuntarily. Voluntary methods include
renunciation (express or implied) and request for release, both of which usually
precede the acquisition of a new nationality. Involuntary methods are forfeiture as a
result of some disqualification or prohibited act like enlistment in a foreign army or long
continued residence in a foreign state, and substitution of one nationality for another
following a change of sovereignty or any act conferring derivative naturalization.
How does the Hague Convention of 1930 on the Conflict of Nationality Laws provide
against conflicts arising from divergent municipal laws on nationality?
The said convention provides as follows:
Article 1. It is for each State to determine under its law who are its nationals. This law
shall be recognized by other States in so far as it is consistent with international
conventions, international customs, and the principles of law generally recognized with
regard to nationality
Article 2. Any question as to whether a person possesses the nationality of a particular
State shall be determined in accordance with the law of the State.
Article 3. Subject to the provisions of the present Convention, a person having two or
more nationalities may be regarded as its national by each of the States whose nationality
he possesses.
Article 4. A State may not afford diplomatic protection to one of its nationals against a
State whose nationality such person also possesses.
Article 5. Within a third State, a person having more than one nationality shall be treated
as if he had only one. Without prejudice to the application of its laws in matters of personal
status and of any convention in force, a third State shall, of the nationalities which any
such person possesses, recognize exclusively in its territory either the nationality of the
country in which he is habitually and principally resident or the nationality of the country
with which in the circumstances he appears to be in fact most closely connected.
(Principle of Effective or Active Nationality).
Article 6. Without prejudice to the liberty of a State to accord wider rights to renounce its
nationality, a person possessing two nationalities acquired without any voluntary act on
his part may renounce one of them with the authorization of the State whose nationality
he desires to surrender. This authorization may not be refused in the case of a person
who has his habitual and principal residence abroad, if the condition laid down in the law
of the State whose nationality he desires to surrender are satisfied.
What is the Doctrine of Nemo Potest Exuere Patriam? (Sarmiento, 2007)
This is the doctrine that the bond of nationality once forged could never be broken.
This is the basis of the doctrine of indelible allegiance. The US used this common law
doctrine in the early decades of its national life. Born a citizen of the US, no one might
transfer his allegiance to another state without the consent of the state which had first
claim upon him.

58
What is the Right of Expatriation? (Ibid)
It is the right of a person to renounce his nationality or allegiance to his original
State. It finds support in Article 15 of the Universal Declaration of Human Rights which
states that, “No one shall be arbitrarily deprived of his nationality nor denied the right to
change his nationality.”
When may an act of an individual become an Act of State?
An act of an individual becomes an Act of State if it may be imputed on the State.
This is usually determined on the basis of the national legal order, the law of the state
whose act is in question. An act the performance of which is not prescribed or permitted
by the law of the state cannot be imputed on the state, i.e., interpreted as an act of state.
However, such an act may, according to International Law, have the same legal effect as
an act imputable to the state, especially if the act is performed by an individual who, as
an organ of the state, is competent under the law to represent the state in relation to other
states, such as Head of State (Kelsen, 117) [Sarmiento, 2007].
Can private individuals be regarded as subjects of IL?
Yes, especially in the field of the recognition of fundamental human rights, the
individual has come to be a subject, rather than an object of IL (Fenwick, 134). Rights are
now assumed and obligations imposed directly upon individuals.
In the field of international human rights, the rights of individuals as against states
are now protected and their violation afforded remedies. In international humanitarian
law, individual criminal responsibility is now imposed for the commission of the crimes of
genocide, war crimes, and crimes against humanity, among others. In international
criminal court, victims of international crimes are now given legal personality before the
court, not as mere witnesses for the prosecution, but as parties who may directly
participate in the proceedings [Ibid].
What is Statelessness? (Cruz, 2000)
It is the condition or status of an individual who is born without any nationality or
who loses his nationality without retaining or acquiring another.
In such case, from the traditional viewpoint, the individual is powerless to assert
any right that otherwise would be available to him under international law were he a
national of a particular state.
Any wrong suffered by him through the act or omission of a state would be damnum
absque injuria for in theory no other state had been offended and no international
delinquency committed as a result of damage caused upon him.
This is so because any injury to the individual by a foreign jurisdiction is, legally
speaking, not a violation of his own right but of the right of his state to the protection of its
nationals; the right to complain belongs not to him but to the state of which he is a national.

59
 CHAPTER 7

RECOGNITION
What are the Objects of recognition?
Recognition may be extended to a state, to a government, or to a belligerent
community. Recognition of a state is generally held to be irrevocable and imports the
recognition of its government. Recognition of a government, on the other hand, may
be withdrawn and does not necessarily signify the existence of a state as the government
may be that of a colony. (Hackworth, 166; Fenwick, 157) Recognition of belligerency
does not produce the same effects as the recognition of states and governments because
the rebels are accorded international personality only in connection with the hostilities
they are waging. (Wilson and Tucker, 69-72) [Cruz, 2000]
What are the Kinds of Recognition?
It may be either express or implied. Express recognition may be verbal or in
writing. It may be extended through a formal proclamation or announcement, a stipulation
in a treaty, a letter or telegram, or on the occasion of an official call or conference.
Examples: the state of Israel and its provisional government were recognized by the US
in a statement released to the press by President Harry S. Truman on May 14, 1948; The
Communist Government of Russia, was recognized by Italy in a treaty concluded between
the two countries in 1924; and a simple telegram sufficed to extend American recognition
to Poland after WW1
Recognition is implied when the recognizing state enters into official intercourse
with the new member by exchanging diplomatic representatives with it, concluding with it
a bipartite treaty dealing comprehensively with their relations in general or,
acknowledging its flag or otherwise entering into formal relations with it. (Fenwick, 137).
In the case of a belligerent community, recognition is implied when the legitimate
government blockades a port held by the former or when other states observe neutrality
in the conflict. (Bishop, 261) [Ibid]
What is required of an act for it to be considered as an act constituting recognition?
The act constituting recognition shall give a clear indication of an intention:

60
 a) To treat with the new state as such; or
b) To accept the new government as having authority to represent the state it purports
to govern and to maintain diplomatic relations with it; or
c) To recognize in the case of insurgents that they are entitled to exercise belligerent
rights. (Hackworth, 166) [Ibid]
What is the effect of common membership in an international organization of states
that have not previously recognized each other?
They are deemed to recognize each other only within the said body and not
elsewhere. Example: The Phil and Soviet Union for many years dealt officially with each
other in the UN, of which they are both charter members, but did not otherwise maintain
relations outside the Organization until they exchanged diplomatic recognition in 1975.
[Ibid]
What is Recognition of States?
The recognition of a new state is the free act by which one or more states
acknowledge the existence on a definite territory of a human society politically organized,
independent of any existing state, and capable of observing the obligations of
international law, and by which they manifest therefore their intention to consider it a
member of the international community. (Art 1, Institute de Droit International)
The recognition of a new state comes easy when it is established through peaceful
methods such as plebiscite or agreement. Examples: Norway and Sweden, upon their
formal separation in 1905 were unhesitatingly extended recognition; same is true with
Egypt, when it was declared independent by Great Britain in 1922 and also to the
Philippines upon the withdrawal of American sovereignty there from in 1946. But the act
of France in recognizing the newly established USA in 1778 was resented by Great Britain
which shortly thereafter declared war against the French. The recognition made by US
to Brazil was not received with much antagonism by parent state Portugal which had
evidently lost interest in its former colony. [Ibid]
What is the Recognition of Governments?
The recognition of the new government of a state which has been already
recognized is the free act by which one or several states acknowledge that a person or a
group of persons is capable of binding the state which they claim to represent and witness
their intention to enter into relations with them. (Art. 9, Ibid)
Similar to the recognition of states, the recognition of governments is usually
decided mainly on the basis of political considerations. Premature recognition may lead
to international misunderstanding if the new government has been established through
violent methods. There is no problem if the change of government is caused through
peaceful means but in the case the new government is installed through violent means
and it claims the right to represent the state to the exclusion of the former, the former or

61
de jure government might have a cause for complaint if recognition is extended by other
governments to the de facto government. [Cruz, 2000]
What is the Tobar or Wilson principle?
Under this principle, which was expressed in a treaty of the Central American
Republics in 1907 at the suggestion of Foreign Minister Tobar of Ecuador and reiterated
in 1913 by President Woodrow Wilson of the US, recognition shall not be extended to any
government established by revolution, civil war, coup d’état or other forms of internal
violence until the freely elected representatives of the people have organized a
constitutional government. [Ibid]
What is Stimson Principle?
This principle was formulated by US Secretary of State Stimson and was adopted
by the League of Nations in a resolution declaring that it was “incumbent upon the
members of the League of Nations not to recognize any institution, treaty or agreement
which may be brought about by means contrary to the Covenant of the League of Nations
or to the Pact of Paris.” [Ibid]
What is Estrada Doctrine?
Minister Genaro Estrada of Mexico announced in 1930 a doctrine that now bears
his name. Under this doctrine, the Mexican government declared that it would, as it saw
fit, continue or terminate its relations with any country in which a political upheaval had
taken place “and in so doing does not pronounce judgment, regarding the right of foreign
nations to accept, maintain, or replace their governments or authorities.” [Ibid]
What are the criteria in recognizing a new government based on the present
practice of most states?
They are as follows:
a) That the government must be able to maintain order within the state and to repel
external aggression known as the objective test; and
b) That the government is willing to comply with its international obligations known as
the subjective test. (Fenwick, 159-162)[Ibid]
What are the distinctions between recognition de jure and recognition de facto?
They are the following:
a) Recognition de jure is relatively permanent while recognition de facto is
provisional;
b) Recognition de jure vests title in the government to its properties abroad while
recognition de facto does not;
c) Recognition de jure brings about full diplomatic relations while recognition de facto
is limited to certain juridical relations. (Oppenheim-Lauterpacht, 136-137)[Ibid]

62
What are the effects of Recognition of States and Governments?
The following are the consequences of the recognition of state and governments:
a) Full diplomatic relations are established except where the government recognized
is de facto.
b) The recognized state or government acquires the right to sue in the courts of the
recognizing state.
c) The recognized state or government has a right to the possession of the properties
of its predecessor in the territory of the recognizing state.
d) All acts of the recognized state or government are validated retroactively,
preventing the recognizing state from passing upon their legality in its own courts.
[Ibid]
What is Recognition of Belligerency?
A belligerency is supposed to be a merely internal affair of the state and does not
produce international repercussion. But when the conflict widens and aggravates, it may
be necessary, for practical reasons, to consider the formal recognition of the belligerent
community. Such recognition is usually extended where the following conditions are
established:
a) There must be an organized civil government directing the rebel forces.;
b) The rebels must occupy a substantial portion of the territory of the state.
c) The conflict between the legitimate government and the rebels must be serious,
making the outcome uncertain.
d) The rebels must be willing and able to observe the laws of war. [Ibid]
What are the consequences of recognition of belligerency?
They are as follows:
a) Upon recognition by the parent state, the belligerent community is considered a
separate state for purposes of the conflict it is waging against the legitimate
government. Thus:
1) their relations with each other shall, for the duration of hostilities, be
governed by the laws of war, and their relations with other states shall
be subject to the laws of neutrality;
2) the troops of either belligerent, when captured, shall be treated as
prisoners of war;
3) the parent state shall no longer be liable for any damage that may be
caused to third states by the rebel government;

63
 4) both belligerents may exercise the right of visit and search upon neutral
merchant vessels;
5) the rebel government, equally with the legitimate government, shall be
entitled to full war status as regards all other states and may establish
blockades, maintain prize courts and take other allowable war
measures.
b) Where recognition is extended by third states, the above consequences are
effective only as to them and do not bind other states not extending recognition.
It is only where the recognition is made by the parent state that the effects thereof
become general and are legally applicable to all other states. [Ibid]

64
 CHAPTER 8

TREATMENT OF ALIENS

What is the concept of protection of aliens?

No states are obliged to admit aliens into its territory unless there is a treaty
requiring it. This springs from sovereignty of the state. Though, it is difficult to deny
admission to all. Hence, states impose legal standards for admission and once admitted,
at least under democratic regimes, aliens may not be expelled without due process.
From the perspective of the state of their nationality, aliens are “nationals abroad”.
Therefore, they remain important for the state of their nationality. Thus, states have
common interest in the protection of aliens. [Bernas, 2009]
What is the doctrine of state responsibility?
Under this doctrine, a state may be held responsible for:
a) An international delinquency,
b) directly or indirectly imputable to it,
c) which causes injury to the national of another state.
Under this doctrine, liability will attach to the state where its treatment of the aliens fall
below the international standard of justice or where it is remiss in according him the
protection or redress that is warranted by the circumstances. (Cruz, 2000)
What are the two kinds of state responsibility?
a) Direct state responsibility attaches where the international delinquency was
committed by superior government officials or organs like the chief of state or the
national legislature as their acts may not be effectively prevented or reversed
under the constitution and laws of the state.
b) Indirect state responsibility results where the offense is committed by inferior
government officials or, more so, by private individuals, although the state will be
held liable if, by reason of its indifference in preventing or punishing it, it can be
considered to have connived in effect in its commission. [Ibid]
What is an international wrongful act?

65
 There is an internationally wrongful act of a State when conduct consisting of an
action or omission:
a) is attributable to the State under international law; and
b) constitutes a breach of an international obligation of the State. (Art. 2, Articles on
Responsibility of States for Internationally wrongful Acts, International Law
Commission, 2001) [Bernas, 2009]
What is international standard of justice?
It has no precise definition. It is described as the standard of the reasonable states,
as referring to the ordinary norms of official conduct observed in civilized jurisdictions.
[Cruz, 2000]
What is the concept of diplomatic protection?
It is the instrument used for the protection of aliens which is based on the traditional
notion that the individual is an inappropriate subject of international law and must have
recourse to his or her state of nationality for protection. The theory underlying the system
is that injury to a national abroad is injury to the individual’s state of nationality. Thus, the
interest of the state is in the redress of the injury to itself and not of the injury to the
individual. [Bernas, 2009]
What are the two standards for the protection of aliens?
They are as follows:
a) “national treatment” or “equality of treatment”
Aliens are treated in the same manner as nationals of the state where they reside.
Here, aliens would enjoy the same benefits as local nationals but if the state is tyrannical
and its municipal laws are harsh and violative of human rights even to its citizens, then
aliens would likewise be subject to such harsh laws.
b) minimum international standard
However harsh the municipal laws might be against a state’s own citizens, aliens
should be protected by certain minimum standards of humane protection.
What conducts are attributable to the state?
In Chapter 2 of the Responsibility of States for Internationally Wrongful Acts, the
following conducts are considered as acts of state; to wit:
a) The conduct of any of its organs, whether exercising legislative, executive, judicial
or any other functions. (Art.4)
b) The conduct of a person or entity which is empowered by the law of that State to
exercise governmental authority provided the person or entity is acting in that
capacity in the particular instance. (Art.5)

66
 c) The conduct of a person or group of persons that is in fact acting on the instructions
of, or under the direction or control of, that State in carrying out the conduct. (Art.8)
d) The conduct of a person or group of persons that is in fact exercising governmental
authority in the absence or default of the official authorities and in circumstances
such as to call for the exercise of that authority. (Art. 9)
e) The conduct of an insurrectional movement which becomes the new Government
of a State. (Art.10[1])
f) The conduct of a movement, insurrectional or otherwise, which succeeds in
establishing a new State in part of the territory of a pre-existing State or in a territory
under its administration, shall be considered an act of the new State. (Art.10[1])
g) Conduct which the State acknowledges and adopts as its own. (Art.11) [Sarmiento,
2007]
What is the concept of failure of protection or redress?
Under this concept, a state may still be held liable even if its laws conform to the
international standard of justice if:
a) It does not make reasonable efforts to prevent injury to the alien; and
b) having done so unsuccessfully, fails to repair such injury. [Cruz, 2000]
What is the concept of exhaustion of local remedies?
Under this concept, even when the liability of the state has already been
established, its enforcement cannot be claimed by the injured foreigner unless he first
exhausts all available local remedies for the protection or vindication of his rights.
(Schwarzenberger, 166) [Ibid]
It is generally accepted that the state must be given an opportunity to do justice in
its own regular way and without unwarranted interference with its sovereignty by other
states. [Ibid]
“…where there is a judicial remedy, it must be sought; and only if it is sought in
vain does diplomatic interposition become proper.” (Harvard Research Draft on the
Responsibility of States, 23 A.J.I.L., Sp. Supp.133) [Ibid]
What are the exceptions to the adherence to the concept of exhaustion of local
remedies?
They are as follows:
a) there are no remedies to exhaust;
b) where the laws are intrinsically defective;
c) where there is laxity or arbitrariness in their enforcement;

67
 d) where the courts are corrupt;
e) where there is no adequate machinery for the administration of justice; or
f) “acts of state” which are not subject to judicial review. [Ibid]
When may an injured foreigner resort to diplomatic protection?
If he has exhausted all local remedies but without success, he may then avail
himself of the assistance of his state – but only if he has a state. If he has no state, he
will have no party to represent him, and he by himself, being a mere individual, cannot
institute his claim in his own name. [Ibid]
How important is the tie of nationality in seeking diplomatic protection?
The tie of nationality is required to exist from the time of the injury until the time the
international claim is finally settled. (Schwarzenberger, 169) When this tie is broken, the
claim itself is deemed automatically abated. If, therefore, the injured national dies while
the claim is under consideration and it should happen that his heirs are not nationals of
the claimant state, the claim will lapse.
Though this requirement may now yield to the view that the individual as such
should be allowed to institute an international claim against a foreign state for violation of
his own personal rights. [Ibid]
What constitutes enforcement of claim?
An international claim for damages may be resolved through negotiation or, if this
fails, any of the other methods of settling disputes, like good offices, arbitration, and
judicial settlement. There have been cases also where hostile and forcible measures
have been employed and when war itself has been resorted to as means of compelling
compliance with the demands of the injured state.
When state responsibility is established or acknowledged, the duty to make
reparation will arise which may either take the form of restitution (an obligation to re-
establish the situation which existed before the wrongful act was committed, provided it
is not materially impossible- Responsibility of States for Internationally Wrongful Acts,Art.
35 ) or, where this is not possible, satisfaction (When the injury cannot be made good
by restitution or compensation, it may consist in an acknowledgement of the breach, an
expression of regret, a formal apology or another appropriate modality, but it shall not be
out of proportion to the injury and may not take a form humiliating to the responsible State-
Ibid, Art. 37) or compensation (an obligation to compensate for the damage caused
thereby, insofar as such damage is not made good by restitution; shall cover any
financially assessable damage including loss of profits insofar as it is established-Ibid,
Art. 36), , or all three of these together. Thus, the settlement may consist of the
restoration or replacement of the object of the offense, a formal apology by the
delinquent state and payment of damages as well. [Ibid]
How can state responsibility be avoided?

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 Under the Calvo clause, which is sometimes incorporated by local states in
contracts, an alien waives or restricts his right to appeal to his own state in connection
with any claim arising from the contract and agrees to limit himself to the remedies
available under the laws of the local state. [Ibid]
But this was rejected in North American Dredging Company Claim (1926)
by the Mexico-US General Claims Commission. Accordingly, the right to seek
redress is a sovereign prerogative of a state and a private individual has no right
to waive the state’s right.
Distinguish Calvo Doctrine from the Calvo Clause.
The Calvo doctrine makes the state not responsible for losses suffered by aliens
in time of civil war. This doctrine is named after Argentine jurist Carlos Calvo who argued
in his treatise on International Law (Derecho internacional teurico y practico de Europa y
America [1868]) that a state could not accept responsibility for losses suffered by
foreigners as a result of civil war or insurrection, on the ground that to admit responsibility
in such cases would be to menace the independence of weaker states by subjecting them
to the intervention of strong states, and would “establish an unjustifiable inequality
between nationals and foreigners.”
Calvo clause on the other hand, is used chiefly in contracts between a government
and aliens. It prevents appeals by aliens to their home governments for diplomatic
intervention in behalf of their contract rights. Its general tenor is that the alien agrees that
any dispute that might arise out of the contract is to be decided by the national courts in
accordance with national law and is not to give rise to any international reclamation. In
some cases, the alien is to be “considered a national” for the purpose of the contract.
(Fenwick, 292) [Sarmiento, 2007]
What are the preliminary objections which if not answered may lead to the loss of
the claim of denial of justice?
The claim of denial of justice in cases founded on diplomatic protection or on injury
to aliens, may be lost due to failure to answer some preliminary objections which include
lack of nationality link and failure to exhaust national remedies. [Bernas, 2007]
How is expropriation of alien property done to avoid committing an international
wrong?
The expropriation “shall be based on grounds or reasons of public utility, security
or the national interest which are recognized as overriding purely individual or private
interests, both domestic and foreign. In such cases the owner shall be paid appropriate
compensation in accordance with the rules in force in the state taking such measures in
the exercise of its sovereignty and in accordance with international law.”
What is the concept of exclusion of aliens?
State liability to aliens may also be avoided by refusing their admission. Though,
this is not regarded as sound policy since it would provoke retaliation in kind and ultimately

69
isolate its nationals from the rest of the international community. Conversely, it would not
be advisable either if the entry of aliens were allowed indiscriminately because they might
pose a danger to the welfare and especially the security of the admitting country. Thus,
the practice of most states now is to regulate the immigration and stay of aliens and to
provide for their deportation whenever warranted. In proper cases, arrangements may
also be made for the extradition of alien fugitives. [Cruz, 2000]
What is the difference between deportation and exclusion?
Deportation is the removal of an alien out of the country, simply because his
presence is deemed inconsistent with the public welfare, and without any punishment
being imposed or contemplated, either under the laws of the country out of which he is
sent, or under those of the country to which he is taken. While exclusion is the denial of
entry to an alien. [Ibid]
What is the concept of Extradition?
It is the surrender of a person by one state to another state where he is wanted for
prosecution or, if already convicted, for punishment.
It differs from deportation because it is effected at the request of the state of origin
whereas deportation is the unilateral act of the local state; it is based on offenses
generally committed in the state of origin whereas deportation is based on causes arising
in the local state; and it calls for the return of the fugitive to the state of origin whereas an
undesirable alien may be deported to a state other than his own or the state of origin.
[Ibid]
What is the basis of extradition?
It is based on treaty between the state of refuge and the state of origin. In the
absence of such treaty, the local state has every right to grant asylum to the fugitive and
to refuse to deliver him back to the latter state even if he is its national. If, notwithstanding
this right, the surrender requested is still effected by the state of asylum, it is not because
of a demandable duty on its part but in pursuance of policy or as a gesture of comity.
[Ibid]
What are the fundamental principles of extradition?
They are as follows:
1) Extradition is based on the consent of the state of asylum as expressed in a treaty
or manifested as an act of goodwill. (Fenwick, 331]
2) Under the principle of specialty, a fugitive who is extradited may be tried only for
the crime specified in the request for extradition and included in the list of offenses
in the extradition treaty. (US vs Rauscher, 119, US 407) If he is charged with any
other offense committed before his escape, the state of refuge- and not the
accused- has a right to object; nevertheless, the prosecution will be allowed if the
extraditing state agrees or does not complain.

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 3) Any person may be extradited, whether he be a national of the requesting state, of
the state of refuge or of another state. (Oppenheim-Lauterpacht,698) The practice
of many states now, is not to extradite their own nationals but to punish them under
their own laws in accordance with the nationality principle of criminal jurisdiction.
4) Political and religious offenders are generally not subject to extradition. It has been
held that “in order to constitute an offense of a political character, there must be
two or more parties in the state, each seeking to impose the government of their
own choice on the other.” (In re Meunier, 2 Q.B. 415, 1984)
What is attentat clause?
Under this clause, the murder of the head of state or any member of his family is
not to be regarded as a political offense for purposes of extradition.
5) In the absence of special agreement, the offense must have been committed within
the territory or against the interests of the demanding state.
6) The act for which the extradition is sought must be punishable in both the
requesting and requested states under what is known as the rule of double
criminality.
What are the differences between an extradition proceeding and a criminal
proceeding?
They are as follows:
1) extradition proceeding (ep) is summary in nature while criminal proceedings (cp)
involve a full-blown trial;
2) in contradistinction to a cp, the rules of evidence in ep allow admission of evidence
under less stringent standards;
3) a criminal case requires proof beyond reasonable doubt for conviction while a
fugitive may be ordered extradited “upon showing of the existence of a prima facie
case.”
4) In a criminal case, judgment becomes executory upon being rendered final, while
in ep, our courts may adjudge an individual extraditable but the President has the
final discretion to extradite him. (Secretary of Justice vs Lantion, Oct 17, 2000)
Is the right to bail applicable in extradition cases?
In Rodriguez vs Judge (Feb 27, 2006), the Court held that bail may be granted to a
possible extradite only upon a clear and convincing showing:
a) That he will not be a flight risk or a danger to the community; and
b) That there exist special, humanitarian and compelling circumstances.
What is reconduction to the border?

71
 Reconduction to the border is the forcible expulsion of undesirable aliens by
arresting them and reconducting them to the border of their home state. It is a police to
police expulsion without any conditions and without judicial intervention. [Sarmiento,
2007]
What is “disguised extradition?
There is “disguised extradition” where deportation is used to achieve extradition.
[Ibid]
What is irregular rendition?
Irregular rendition is a practice of some states that is borne of frustration caused
by the unwillingness of a country upon which a valid extradition request has been made
to carry out its international obligation. Example: When US retrieved John Surratt, who
was accused of conspiracy in the assassination of Abraham Lincoln. Surrat was snatched
forcibly by US agents from Alexandria, Egypt, where he had fled following the
assassination. (Newhouse) [Sarmiento, 2007]
What are the different varieties of irregular renditions?
They are as follows:
a) Transnational forcible abduction
- One sovereign may simply kidnap the culprit seeking refuge in a foreign land,
an action that is invariably against the law of the foreign jurisdiction.
- Example is the 1960 kidnapping of Adolph Eichmann by Israeli agents in
Argentina. Eichmann was one of the principal participants in Hitler’s Final
Solution.
b) Informal surrender or “disguised extradition”
- Without process, the foreign jurisdiction may simply grant permission or silently
accede to the requesting state’s demand for the surrender of the fugitive or it
may affirmatively move to deport or expel him or her.
c) Lures
- Tricked by subterfuge or deception, the fugitive may be lured from an
extradition refuge to the territory of the pursuing State, international waters, or
to another country permitting extradition to the pursuing State. (Newhouse)
[Sarmiento, 2007]
What is the Ker-Frisbie Doctrine
It is a doctrine that holds that criminal defendants may be tried regardless of
whether their presence before the court was secured from outside its territorial jurisdiction
by means other than pursuant to a valid extradition. [Ibid]

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 CHAPTER 9

TERRITORY

Acquisition and Loss of Territory

What are the modes of acquiring and losing territory?
They are as follows:
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. (Cruz, 2000)

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) [Bernas, 2009]

Effective control is relative and may depend on the nature of the case – e.g.
whether the territory is inhabited or not and how fierce the occupants are. Where
there are two or more claimants to a territory, effective control is also relative to the
strength of claims. (Eastern Greenland Case PCIJ 1933) [Bernas, 2009]

What is hinterland doctrine?

Under the hinterland doctrine, the state that discovers and occupies the coast shall
also have an exclusive right to occupy the hinterland, i.e. the inland region lying behind a
port. [Sarmiento, 2007]

What is the doctrine of inchoate title?

It means that since an effective occupation must usually be a gradual process it is

considered that some weight should be given to mere discovery, and it is regarded
therefore as giving an “inchoate title”, that is to say, a temporary right to exclude other

73
states until the State of the discoverer has had a reasonable time within which to make
an effective occupation, or a sort of option to occupy which other states must respect
while it lasts. (Briely, 154) [Ibid]

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)
[Bernas, 2009]
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.
Sovereigns can effect cession only in a treaty between the ceding and acquiring
sovereigns. Cession requires possession or occupation by the acquiring
sovereign. When such occupation takes place, the subjects domiciled in the newly
acquired insular area become nationals of the acquiring sovereign. (Perl, 13)
[Sarmiento, 2007]
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.
(Cruz, 2000)
e. Accretion and Avulsion
These can also lead to sovereignty over territory. 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. [Bernas, 2009]
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

74
 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
g. Natural causes (Cruz, 2000)
What are the components of territory?
They are the following:
1. Terrestrial domain
It refers to the land mass, which may be integrate, as in the case of Iran, or
dismembered, as in the case of the US, or partly bounded by water like Burma, or consist
of one whole island like Iceland. It may also be composed of several islands, like the
Philippines and Indonesia, which are known as mid-ocean archipelagoes, as
distinguished from the coastal archipelagoes like Greece. [Ibid]
What are State boundaries or frontiers?
They are the barriers distinguishing one state’s territory from another state’s
territory. They extend not only across but both upwards and downwards into the
airspace and subsurface areas. Boundaries are most often determined by agreements
between parties, rather than being dictated by principles of International Law. (Malone,
48) [Sarmiento, 2007]
2. Maritime and fluvial domain
It consists of the bodies of water within the land mass and the waters adjacent to
the coasts of the state up to a specified limit. This includes the internal waters in the land-
locked lakes, the rivers and man-made canals within the land mass, and in certain
bays, gulfs and straits, as well as the external waters in the territorial sea. [Ibid]
a. Rivers
They may be classified into national, multi-national, international, and boundary.
National rivers are those that are situated completely in the territory of one state (Pasig
River) as distinguished from the multinational rivers (Congo River in Africa, Mekong
River in Asia) that flow through the territories of several states. An international river is

75
one that is navigable from the open sea and is open to the use of vessels from all states
(Rhine and Danube). Boundary river divides the territories of the riparian states (St.
Lawrence River between Canada and the US). [Ibid]
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. An indentation shall not, be regarded as a bay unless its area is
as large as or larger than that of a semi-circle whose diameter is a line drawn across the
mouth of that indentation. [Ibid]
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. Examples: Bay of Cancale in France; the Bay of El Arab in Egypt; Chesapeake Bay
in the US, Hudson Bay in Canada and the Zuyder Zee in Holland. [Ibid]
What is the Thalweg doctrine?
It aims to resolve water boundary disputes. According to this doctrine, the
boundary between two states divided by a flowing body of water should be drawn along
the thalweg, which is the deepest portion of the channel. [Sarmiento, 2007]
c. 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. [Ibid]
What were the three (3) UN Conferences on the Law of the Sea?
1. The First Conference was held in 1958 at Geneva, Switzerland and resulted in the
adoption of the Convention on the Territorial Sea and the Contiguous Zone, the
Convention on Fishing and the Living Resources of the High Seas, and the
Convention on the Continental Shelf.
But it failed to define the breadth of the territorial sea; and, moreover, the Conventions
adopted therein were ratified by only forty states. The Philippines did not ratify because
of the absence of provisions recognizing the archipelago doctrine it was advocating.
2. The Second Conference was held in 1960, again at Geneva, but it also left
unresolved the question of the breadth of the territorial sea.
3. The Third Conference in 1970 by the UN, led to the adoption of a new Convention
on the Law of the Sea, which was signed in Jamaica in 1982 by 119 of the 150
conferee-states. This Convention took effect on November 16, 1994, after its
ratification by more than the required 60 of the signatory states. (Cruz, 2000)

76
 Also known as the Convention on the Law of the Sea of 1982, it is now the
prevailing law on maritime domain. Many of its provisions are a repetition of earlier
convention law or a codification of customary law. Territorial sea is now the belt of sea
outwards from the baseline and up to 12 nautical miles beyond. Where the application of
the 12-mile rule to neighboring littoral states would result in overlapping, the rule now
established is that the dividing line is a median line equidistant from the opposite
baselines. But the equidistance rule does not apply where historic title or other special
circumstances require a different measurement, Article 15, 1982 LOS. [Bernas, 2009]
What is baseline?
It is the low-water mark along the coast from which the belt of the territorial sea is
measured. (UNCLOS, Art 3) [Sarmiento 2007]
What determines the validity of baseline delineations?
The validity of baseline delineations is determined by International Law.(Fisheries
Case) [Ibid]
Two ways to draw the baseline:
1. Normal baseline is one drawn following the “low-water line along the coast as
marked on large-scale charts officially recognized by the coastal State.” This
line follows the curvatures of the coast and therefore would normally not consist
of straight lines.
2. Straight baseline method uses straight lines which are drawn connecting
selected points on the coast without appreciable departure from the general
shape of the coast. [Bernas, 2009]
What are the limitations on the use of straight-baseline method?
The ICJ imposed the following limitations on the use of the straight-baseline
method:
a) The baseline must not depart to any appreciable extent from the general direction
of the coast;
b) The areas lying within these lines must be particularly closely linked to the land
formations which divide or surround them;
c) Account should be taken of certain economic interests peculiar to a region when
their reality and importance are clearly evidenced by a long usage. (UK vs Norway,
UNCLOS, Art.7) [ Sarmiento, 2007]
Distinguish the territorial sea and the internal waters of the Philippines.
The territorial sea is an adjacent belt of sea which may extend up to a breadth of
12 nautical miles from the baseline over which the sovereignty of a coastal State extends.
(UNCLOS, Arts. 2,3)

77
 Article 1 of the 1987 Constitution defines the internal waters of the Philippines as
“the waters around, between, and connecting the islands of the archipelago, regardless
of their breadth and dimensions.” Under Article 7 of the LOS Convention, waters on the
landward side of the baseline of the territorial sea form part of the internal waters of the
State. [Sarmiento, 2007]
What is the concept of sovereignty over territorial sea?
The sovereignty of the coastal state over its territorial sea and the airspace above
it as well as the seabed under is the same as its sovereignty over its land territory. (Art 2,
LOS)
However, the sea is subject to the right of innocent passage by other states. The
rule on innocent passage applies to ships and aircraft. Submarines must surface.
[Bernas,2009]
May a foreign nuclear-powered ship and the ships carrying nuclear or other
inherently dangerous or noxious substances exercise the right of innocent
passage through the territorial sea of another state?
Yes, however, they should carry documents and observe special precautionary
measures established for such ships by international agreements. (UNCLOS, Art 23)
[Sarmiento,2007]
What is innocent passage?
It is passage that is not prejudicial to the peace, good order or security of the
coastal state. Coastal states have the unilateral right to verify the innocent character of
passage, and it may take the necessary steps to prevent passage that it determines to
be not innocent. The rule on innocent passage is also applicable to channels. Corfu
Channel Case (UK vs Albania, 1949, ICJ Rep). [Ibid]
When is delayed or discontinuous passage allowed?
The passage shall be continuous and expeditious. However, passage may include
stopping and anchoring, but only in the following cases:
a) The delayed passage is incidental to ordinary navigation;
b) It is rendered necessary by force majeure or distress; or
c) For the purpose of rendering assistance to persons, ships or aircraft in danger or
distress. (UNCLOS, Article 18{2}) [Ibid]
What is the right of transit passage?
It means the exercise of the freedom of navigation and overflight solely for the
purpose of continuous and expeditious transit of the strait between one part of the high
seas or an exclusive economic zone and another part of the high seas or an exclusive
economic zone.

78
 This requirement of continuous and expeditious transit does not preclude passage
through the strait for the purpose of entering, leaving or returning from a State bordering
the strait, subject to the conditions of entry to that State. (UNCLOS, Art 38{2}) [Ibid]
Differentiate transit passage from innocent passage.
a) Transit passage applies through straits, while innocent passage applies
through territorial seas;
b) Transit passage covers navigation and overflight by aircrafts, while innocent
passage covers navigation only;
c) Transit passage may not be unilaterally suspended while innocent passage
may be unilaterally suspended. (UNCLOS, Art. 25{3}) [Ibid]
What are internal waters?
They are all waters (part of the sea, rivers, lakes, etc.) landwards from the baseline
of the territory. Sovereignty over these waters is the same extent as sovereignty over
land, and it is not subject to the right of innocent passage. [Ibid]
Do merchant vessels have a right of access to the ports of another state?
Yes, the freedom of access to ports by foreign merchant vessels is a rule of custom
conditioned upon reciprocity. But, landlocked nations may not be denied freedom on
access to ports of another solely because of their inability to reciprocate. (UNCLOS, Art
131) [Ibid]
May a coastal state deny access to its ports to foreign vessels?
The ports of every coastal state must be open to foreign vessels, as a rule. Though
their ports may be closed but only when the vital interest of the state so require. (Saudi
Arabia v. ARAMCO, Award of August 23, 1938)
What are the principal theories on the jurisdiction of authorities of a coastal state
over crimes committed on board foreign merchant ships which enter or dock in its
ports? Which of the theories is followed in this jurisdiction?
a) Under the English rule, the coastal state shall have jurisdiction over all offenses
committed on board such vessels, except only where they do not compromise
the peace of the port.
b) Under the French rule, the flag state shall have jurisdiction over all offenses
committed on board such vessels, except only where they compromise the
peace of the port. (Cruz, 2000)
It is the English rule that is applicable in this jurisdiction. (People v. Wong Cheng,
G.R. No. L-18924, October 19, 1922)
What are archipelagic waters?

79
 They are internal waters areas enclosed after the straight baseline, pursuant to the
method set forth in Article 7 (Law of the Sea) has been established. [Ibid]
Is there a right of innocent passage through archipelagic waters?
Yes. Article 52 of the LOS Convention provides that ships of all states enjoy the
right of innocent passage through archipelagic waters. But this right cannot be invoked
inside the closing lines within the archipelagic waters which had been drawn for the
delimitation of internal waters. (UNCLOS, Art.50) [Ibid]
What are the limitations on the right of an archipelagic state to suspend the right
of innocent passage of foreign ships in archipelagic waters?
They are as follows:
a) The suspension is made without discrimination in form or in fact among foreign
ships;
b) The suspension is only temporary;
c) It must specify the areas of its archipelagic waters where innocent passage shall
not be allowed;
d) Such suspension is essential for the protection of its security; and
e) Such suspension shall take effect only after having been duly published.
(UNCLOS, Art. 52{2}) [Ibid]
What is archipelagic sea lanes passage?
Under Article 53(3) of the UNCLOS, it means the exercise in accordance with the
LOS Convention of the rights of navigation and over flight in the normal mode solely for
the purpose of continuous, expeditious and unobstructed transit between one part of the
high seas or an exclusive economic zone. [Ibid]
Is there a right of archipelagic sea lanes passage?
Yes, under UNCLOS Article 53 (1, 2) an archipelagic state may designate sea
lanes and air routes above, suitable for the continuous and expeditious passage of foreign
ships and aircraft through or over its archipelagic waters and the adjacent territorial sea.
All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes
and air routes. [Ibid]
Define archipelago and archipelagic state.
An archipelago means a group of islands, including parts of islands,
interconnecting waters and other natural features which are so closely interrelated that
such islands, waters and other natural features form an intrinsic geographical, economic
and political entity, or which historically have been regarded as such.

80
 An archipelagic state means a state constituted wholly by one or more
archipelagos and may include other islands. (UNCLOS, Art 46) [Sarmiento, 2007]
What is the archipelagic theory?
The archipelagic theory considers a group of islands which are so closely
interrelated and their interconnecting waters as one geographical unit. The theory allows
archipelagic baselines joining the outermost points of the outermost islands and drying
reefs of the archipelago. The waters regardless of their depth or distance from the coast,
and within these archipelagic waters, the archipelagic state may draw closing lines for the
delimitation of its internal waters. (UNCLOS, Arts. 46, 47, 50) [Ibid]
What is 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. (Article 33, 1 & 2) [Ibid]
What is exclusive economic zone or “patrimonial sea”?
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. This is
a compromise between those who wanted a 200-mile territorial sea and those who
wanted to reduce the powers of coastal states.
The provisions on the exclusive economic zone are both a grant of rights to and
an imposition of obligations on coastal states relative to the exploitation, management
and preservation of the resources found within the zone. [Ibid]
What are the two primary obligations of the coastal states?
1. They must ensure through proper conservation and management measures that
the living resources of the EEZ are not subjected to over-exploitation which
includes the duty to maintain and restore populations of harvested fisheries at
levels which produce a “maximum sustainable yield.”
2. They must promote the objective of “optimum utilization” of the living resources
thus they should determine the allowable catch of living resources. If the coastal
state does not have the capacity to harvest the allowable catch, it must grant
access to other states. (Arts. 55 to 75) [Ibid]
The delimitation of the overlapping exclusive economic zone between
adjacent states is determined by agreement.
What is continental shelf?

81
 Otherwise known as archipelagic or insular shelf for archipelagos refers to a) 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 b) the seabed and subsoil of areas adjacent to islands.
The coastal state has the right to explore and exploit its natural resources, to erect
installations needed, and to erect a safety zone over its installations with a radius of 500
meters. The right does not affect the right of navigation of others. Moreover, the right
does not extend to non-resource materials in the shelf area such as wrecked ship and
their cargoes. [Ibid]
What are the three competing views regarding the legal regime governing the
exploitation of the mineral resources of the deep sea bed?
They are as follows:
a) “Common heritage of mankind” view is adopted by the UN General Assembly in
the Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the
Subsoil Thereof Beyond the Limits of National Jurisdiction (Resolution No. 2749
[XXV], December 17, 1970.) It declared that:
1) The sea-bed and ocean floor, and the subsoil thereof, beyond the limits of
national jurisdiction (referred to as area), as well as the resources of the area,
are the common heritage of mankind;
2) The area shall not be subject to appropriation by any means by states of
persons, natural or juridical, and no state shall claim sovereignty or sovereign
rights over any part thereof;
3) The area shall be open to use exclusively for peaceful purposes by all states,
whether coastal or landlocked, without discrimination;
4) The exploration of the area and the exploitation of its resources shall be carried
out for the benefit of mankind as a whole.
b) “Freedom of the high seas” view considers the deep seabed and the subsoil as
part of the freedom of the high seas that are open for exploration and exploitation
by any state but not subject to exclusive claims or appropriation;
c) “Res nullius view” regards the sea bed and the subsoil as owned by no one and
may be explored and exploited by the first state which claims the area to the
exclusion of other states. [Sarmiento, 2007]
What is an island?
Under Article 121 of the LOS, an island is a naturally formed area of land,
surrounded by water, which is above water at high tide. It can have its own territorial sea,
exclusive economic zone and continental shelf. However, rocks “which cannot sustain
human habitation or economic life” only have a territorial sea.

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 Artificial islands or installations are not islands in the sense of Article 121. But
coastal states may establish safety zones around artificial islands and prescribe safety
measures around them. (Art. 60{4} and {5}) [Bernas, 2009]
What are high seas?
They are all parts of the sea that are not included in the territorial sea or in the
internal waters of a State. (Article 1, Geneva Convention)
The high seas are subject to six freedoms:
a) Freedom of navigation;
b) Freedom of overflight;
c) Freedom of fishing;
d) Freedom to lay submarine cables and pipelines;
e) Freedom to construct artificial islands and structures; and
f) Freedom of scientific research.
What is hot pursuit?
Under Article 111 of the LOS, hot pursuit of a foreign vessel is allowed where there
is good reason to believe that the ship has violated laws or regulations of a coastal state.
The pursuit must start when the foreign vessel is within the internal waters, the
archipelagic waters, the territorial waters or the contiguous zone of the pursuing state.
Without being interrupted, the pursuit may continue into the high seas. If the foreign
vessel is in the contiguous zone, it may be pursued only for violations of the rights of the
coastal state in the contiguous zone.
Hot pursuit also applies to violations of applicable laws and regulations of the
coastal state in the exclusive economic zone of the continental shelf including the safety
zones of the shelf.
It must stop as soon as the ship pursued enters the territorial waters of its own
state or of a third state.
It may be carried out only by warships or military aircraft, or any other ship or
aircraft properly marked for that purpose. [Bernas, 2009]
What is the 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) [Cruz, 2000]

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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. [Sarmiento, 2007]
What are the 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;
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. [Ibid]
What is 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. [Cruz, 2000]
Which state shall retain jurisdiction and control over launched objects into outer
space?
The State launching an object into outer space shall retain jurisdiction and control
over such object, and over any personnel thereof, while in outer space or on a celestial
body. [Ibid]
Which State shall be internationally liable for any damage that may be caused by
such object to another state or to any person?
It shall be the state launching the object into outer space.

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 CHAPTER 10

JURISDICTION OF STATES
What is jurisdiction?
It is the authority exercised by a state over persons and things within or sometimes
outside its territory, subject to certain exceptions. (Cruz, 2000)
Jurisdiction also means the authority to affect legal interests. With respect to the
powers of the government, jurisdiction can be: 1) jurisdiction to prescribe norms of
conduct (legislative jurisdiction; 2) jurisdiction to enforce the norms prescribed (executive
jurisdiction), and 3) jurisdiction to adjudicate (judicial jurisdiction). [Bernas, 2009]
What may be subject to the jurisdiction of a state?
Jurisdiction may be exercised by a state over:
1) its nationals;
2) the terrestrial domain;
3) the maritime and fluvial domain;
4) the continental shelf;
5) the open seas;
6) the aerial domain;
7) outer space; and
8) other territories. (Cruz, 2000)
What are the two kinds of jurisdiction? (Cruz, 2000)
It can be generally classified as personal and territorial.
1. Personal jurisdiction
It is the power exercised by a state over its nationals and is based on the theory
that a national is entitled to the protection of his state wherever he may be and is,
therefore, bound to it by a duty of obedience and allegiance.
Such duty follows the national even when he is outside the territory of his state and
he may not ordinarily be excused from it unless he is prepared to renounce his own
nationality.
The fact that personal jurisdiction is not easy to enforce does not detract from the
legal power possessed by the state over its nationals abroad.

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 Examples of the assertion of its personal jurisdiction by the Philippines are found
in the following provisions of laws:
Article 15 of the New Civil Code which provides that “laws relating to family rights
and duties, or to the status, condition and legal capacity of persons, are binding upon
citizens of the Philippines, even though living abroad.”
Article 16 of the New Civil Code which states that “intestate and testamentary
succession, both with respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary provisions, shall be
regulated by the national law of the person whose succession is under consideration,
whatever may be the nature of the property and regardless of the country wherein said
property may be found.”
Section 21 of the Revised Internal Revenue Code provides for jurisdiction to tax
Filipino citizens, even if not residing in the Philippines for income received by them from
all sources. (Cruz, 2000)
However, international law limits itself to criminal rather than civil jurisdiction which
is a subject for private international law or conflicts of law.
What are the principles of criminal jurisdiction? (Bernas, 2009)
The following are the five principles of criminal jurisdiction:
1. The Territoriality Principle
Sovereignty over territory is the fundamental source of jurisdiction. A state has
absolute, but not necessarily exclusive, power to prescribe, adjudicate and enforce
rules for conduct that occurs within its territory. Thus, it is vital that boundaries be
determined.
How does the Third Restatement summarize the rules on boundaries where states
are not islands but parts of a larger land mass?
The rules are summarized as follows:
1. The boundary separating the land areas of two states is determined by acts of the
states expressing their consent to its location.
2. Unless a consent to a different rule has been expressed,
a) When the boundary between two states is a navigable river, its location
is the middle of the channel of navigation (Thalweg doctrine);
b) When the boundary between two states is a non-navigable river or a
lake, its location is the middle of the river or lake.
What is the so-called “effects doctrine”?

86
 It is an aspect of the territoriality principle. Under this doctrine, a state also has
jurisdiction over acts occurring outside its territory but having effects within it. This
doctrine consists of two principles:
1) Subjective territorial principle
Under this principle, a state has jurisdiction to prosecute and punish for crime
commenced within the state but completed or consummated abroad.
2) Objective territorial principle
It says that a state has jurisdiction to prosecute and punish for crime commenced
outside the state but consummated within its territory.
2. The Nationality Principle
Under this principle, every state has jurisdiction over its nationals even when
those nationals are outside the state.
As to corporations, a state has jurisdiction over corporations organized under its
laws. Many states assert jurisdiction over corporations whose principal place of business
or registered office is located in their territories. Although still a controversial practice,
states have also sought to regulate corporations organized or having their principal place
of business abroad when these corporations are owned or controlled by nationals. Still
more controversial, are multi-national corporations which register various addresses for
different purposes.
A state has jurisdiction over vessels flying its flag. But flags of convenience might
be challenged on the ground of lack of sufficient link. This principle is generally applicable
to aircraft and spacecraft.
Stateless persons or those who do not have a nationality are either de jure or de
facto. De jure stateless persons are those who have lost their nationality, if they had one,
and had not acquired a new one. De facto stateless are those who had nationality but to
whom protection is denied by their state when out of the state.
Though not protected by any state, stateless persons are protected against
violation of their human rights through adherence to generally accepted principles of
international law and observance of treaty obligations. (Mejoff vs Director of Prisons, 90
Phil 70, 1951)
3. The Protective Principle
In accordance with this principle, a state may exercise jurisdiction over conduct
outside its territory that threatens its security, as long as that conduct is generally
recognized as criminal by states in the international community. (Restatement 402{3})
This conditional clause does not include acts committed in the exercise of the liberty
guaranteed an alien by the law of the place where the act was committed. [Bernas, 2009]
What are the examples of acts covered by this principle?

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 These include plots to overthrow the government, forging its currency, and plot to
break its immigration regulations. (Joyce vs Director of Public Prosecutions, House of
Lords 1946)
What is the limitation on the application of the protective principle?
The principle shall only be applicable to those offenses posing a direct, specific
threat to national security. (US v. Yunis 681 F. Supp.896 {1998})
4. The Universality Principle
This principle recognizes that certain activities, universally dangerous to states and
their subjects, require authority in all community members to punish such acts wherever
they may occur, even absent a link between the state and the parties or the acts in
question. This principle started with piracy.
What are the crimes covered by this principle?
These include piracy, genocide, crimes against humanity, war crimes, aircraft
piracy and terrorism. There is also a growing support for universal jurisdiction over crimes
against human rights.
What is piracy?
In international law, it means any illegal act of violence or depredation committed
for private ends on the high seas or outside the territorial control of any state.
What is genocide?
Under Article 6 of the Statute of the International Criminal Court, it means any of
the following acts committed with intent to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such:
a) Killing members of the group;
b) Causing serious bodily or mental harm to members of the group;
c) Deliberately inflicting on the group conditions of life calculated to bring about
its physical destruction in whole or in part;
d) Imposing measures intended to prevent births within the group;
e) Forcibly transferring children of the group to another group.
What are crimes against humanity?
Under Article 7 of the Statute of the ICC, it means any of the following acts when
committed as part of a wide-spread or systematic attack directed against any civilian
population, with knowledge of the attack:
a) Murder;

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 b) Extermination ;
c) Enslavement ;
d) Deportation or forcible transfer of population;
e) Imprisonment or other severe deprivation of physical liberty in violation of
fundamental rules of international law;
f) Torture ;
g) Rape; sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity;
h) Persecution against any identifiable group or collectivity on political, racial,
national, ethnic, cultural, religious, gender as defined in paragraph 3, or other
grounds that are universally recognized as impermissible under international
law, in connection with any act referred to in this paragraph or any crime within
the jurisdiction of the Court:
i) Enforced disappearance of persons;
j) The crime of apartheid;
k) Other inhumane acts of a similar character intentionally causing great suffering,
or serious injury to body or to mental or physical health.
What are war crimes?
It means grave breaches of the Geneva Conventions of August 12, 1949, which
are any of the acts enumerated under Article 8 of the ICC Statute against persons or
property protected under the provisions of the relevant Geneva Convention.
What is terrorism?
Any other act intended to cause death or serious bodily injury to a civilian, or to
any other person not taking an active part in the hostilities in a situation of armed conflict,
when the purpose of such act, by its nature or context, is to intimidate a population, or to
compel a Government or an international organization to do or abstain from doing any
act. (UN General Assembly Resolution No 54/109 adopted on February 25, 2000 entitled
The International Convention for the Suppression of the Financing of Terrorism)
[Sarmiento, 2007]
5. The Passive Personality Principle
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

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nationals by reason of their nationality, or to assassination of a state’s diplomatic
representatives or other officials.
What are the three modes of resolving conflict of jurisdiction?
They include the following:
a) The balancing test (Timberlane Lumber Co. vs Bank of America, 549 F2d 597)
b) International comity (Hartford Fire Insurance Co. vs California, 509 US 764,
1993)
c) Forum non conveniens (Piper Aircraft Co. vs Reyno, 454 US 235, 1981)

2. Territorial jurisdiction (Cruz, 2000)

As a general rule, a state has jurisdiction over all persons and property within its
territory. The jurisdiction of the nation within its own territory is necessary, exclusive and
absolute. It is susceptible of no limitation not imposed by itself.
a) Land Jurisdiction
Subject to exceptions, everything found within the terrestrial domain of the state
is under its jurisdiction. Nationals and aliens, including non-residents, are bound
by its laws, and no process from a foreign government can take effect for or against
them within the territory of the local state without its permission.
As against all other states, the local state has exclusive title to all property within
its territory, which it may own in its own corporate capacity or regulate when under
private ownership through its police power or forcibly acquire through the power of
eminent domain and be subject to its taxing power.
b) Maritime and fluvial jurisdiction
Generally, the internal waters of a state are assimilated to the land mass and
subjected to the same degree of jurisdiction exercised over the terrestrial domain.
This rule covers the so-called enclosed waters, such as the land-locked lakes,
national rivers and man-made canals.
Civil, criminal and administrative jurisdiction is exercised by the flag state over
its public vessels wherever they may be, provided they are not engaged in
commerce. Foreign merchant vessels docked in a local port or bay are under the
jurisdiction of the coastal state in civil matters but criminal jurisdiction is determined
according to either the English rule or French rule.
The jurisdiction of the state over its interior waters is more exclusive than that
which it exercises over its territorial waters. Subject only to a few exceptions, it is the
right of the coastal state to enforce all its laws to the full extent in its territorial waters
and in proper cases to bar both public and merchant foreign vessels from entering

90
the same. It may even use force, if necessary, to prevent any encroachment on its
territorial integrity.
Under the archipelago doctrine espoused by the Philippines, “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.” Being
internal waters, they are subject to the exclusive jurisdiction of the Philippines.
Although this claim has been substantially accepted in the 1982 Convention on the
Law of the Sea, it has been provided that archipelagic sea lanes are to be laid on
these waters over which foreign ships will have the right of passage as if they were
open sea.
Thus, a foreign vessel need not go around our internal waters but may use
these archipelagic sea lanes in negotiating the distance from one point of the open
sea to another.
c) “Protective jurisdiction” over contiguous zone
This claim of some states has been confirmed by the Convention on the
Territorial Sea and Contiguous Zone, where it is provided that “in a zone of the high
seas contiguous to its territorial sea, the coastal state may exercise the control
necessary to: prevent infringement of its customs, fiscal, immigration or sanitary
regulations within its territory or territorial sea; and punish infringement of the
above regulations within its territory or territorial sea.
d) Jurisdiction over continental shelf
The coastal state has the sovereign right to explore the continental shelf and to
exploit its natural resources and for this purpose it may erect on its installations
and equipment as may be necessary.
However, this right shall not affect the legal nature of the superjacent waters as
open seas or of the airspace above such waters and their use as such by other
states shall not be impaired or disturbed.
The coastal states are allowed to establish on the open seas immediately above
the installations a safety zone with a radius of 500 meters over which it may
exercise jurisdiction for the protection of its properties underneath.
What if the coastal state does not exercise its right to explore the continental
shelf or exploit its resources?
Since this right is exclusive to the coastal state, if the latter does not explore the
continental shelf or exploit its natural resources, no one may undertake these
activities or make a claim to the continental shelf without the consent of the coastal
state.
e) Jurisdiction over the EEZ or patrimonial sea

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 All living and non-living resources found therein belong exclusively to the
coastal state.
f) Jurisdiction over the open seas
Open seas or high seas are res communes and available to the use of all
states for purposes of navigation, flying over them, laying submarine cables or
fishing. In times of war, hostilities may be waged on the open seas.
In what instances may a state exercise jurisdiction on the open seas?
1) Over its vessels
The flag state has jurisdiction over its public vessel at all times, whether
they be in its own territory, in the territory of other states or on the open areas.
Such jurisdiction is exercised over merchant vessels when the latter are within its
territory, when jurisdiction is waived or cannot be exercised by the territorial
sovereign, or when such vessels are on the open seas.
2) Over pirates
Being enemies of mankind, pirates may be captured on the open seas by
the vessels of any state, to whose territory they may be brought for trial and
punishment. Where a pirate vessel attempts to escape into the territorial waters
of another state, the pursuing vessel may continue the chase but is obliged of
turning over the pirates, when captured, to the coastal state authorities. Piracy is
committed for private ends, not political motives thus insurgents, may not be
treated as pirates.
3) In the exercise of the right of visit and search
Under the laws of neutrality, the public vessels or aircraft of a belligerent
state may visit and search any neutral merchant vessel on the open seas and
capture it if it is found or suspected to be engaged in activities favorable to the
other belligerent.
4) Under the doctrine of hot pursuit
If a foreign merchant vessel committed an offense within the territorial
waters of the coastal state, its own vessels may pursue the offending vessel into
the open sea and upon capture bring it back to its territory for punishment.
The hot pursuit to be lawful must be begun before the offending vessel has
left the territorial waters, or the contiguous zone of the coastal state with respect
to violation of rights enforceable thereon. The pursuit must also be continuous or
unabated; otherwise, it will be deemed to have “cooled” and can no longer be
resumed.
g) Aerial jurisdiction

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 It is a generally accepted principle that the local state has jurisdiction over
the airspace above it to an unlimited height, or at the most up to where outer space
begins. Thus, no foreign aircraft, civil or military, may pass through the aerial
domain of a state without its consent.
What is the extent of jurisdiction of the state of registration of the aircraft?
Under the Convention on Offenses and Certain Other Acts Committed on Board
Aircraft (September 14, 1963), the state of registration of the aircraft has jurisdiction over
offenses and acts committed on board while it is in flight or over the high seas or any
other area outside the territory of any state.
What are the exceptions to this rule?
Other states may exercise jurisdiction over such aircraft when:
1) The offense has effect on the territory of such state;
2) The offense has been committed by or against a national or permanent resident
of such state;
3) The offense is against the security of such state;
4) The offense consists of a breach of any rules or regulations relating to the flight
or maneuver of aircraft in force in such state;
5) The exercise of jurisdiction is necessary to ensure the observance of any
obligation of such state under a multilateral international agreement.
h) Outer space
Outer space or the region beyond the earth’s atmosphere, like open seas,
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 the basis of
equality and in accordance with international law. But they are not subject to
national appropriation by claim of sovereignty, by means of use, occupation or any
other means.
A state launching an object into outer space shall retain jurisdiction and
control over such object, and over any personnel thereof, while in outer space or
on celestial body.
Such state shall be internationally liable for any damage that may be caused
by such object to another state or to any person.
i) Other territories

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 When may a state extend its jurisdiction beyond its territory and over
territory not falling under its sovereignty by virtue of customary or
conventional international law?
1) Through assertion of its personal jurisdiction over its nationals abroad or the
exercise of its right to punish certain offenses committed outside its territory
against its national interests even if the offenders are non-resident aliens.
2) On the basis of its relations with other states or other territories, as when it
establishes a colonial protectorate, or administers a trust territory, or occupies
enemy territory in time of war.
3) When the local state waives jurisdiction over persons and things within its
territory. Example is the jurisdiction of sending state over its army sent to foreign
shores. Another example are the exceptions to the English and French rules
on criminal jurisdiction over foreign merchant vessels.
4) Through acquisition of extraterritorial rights.
What is the distinction between exterritoriality and extraterritoriality?
Exterritoriality refers to the exemption of persons and property from the local
jurisdiction on the basis of international custom whereas extraterritoriality applies only
to persons and is based on treaty or convention. Because of the rise of nationalism and
the sovereign equality of states, extraterritoriality has become discredited. However,
exterritoriality remains a respected principle of international law as illustrated by the
immunities of the head of state in a foreign country.
5) Through the enjoyment of easements or servitudes, such as the easement of
innocent passage or the easement of arrival under stress. (Portuguese
Enclaves Case)

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 CHAPTER 11

IMMUNITY FROM JURISDICTION

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
(Bernas, 2009)
Immunity of head of state
Does the immunity of a head of state apply when the subject of the suit is a private
matter?
Yes, in the case of Mighell vs Sultan of Johore, the case for breach of promise to
marry filed against the Sultan of Johore was dismissed upon verification of his being a
sitting foreign sovereign. The immunity that is recognized is absolute for a sitting head of
state. (1 QB 148, 1894)
Is this immunity still available to an individual who is no longer a head of state?
Yes, as held in the Pinochet Case, a former head of state enjoys immunity ratione
materiae in relation to acts done by him as head of state as part of his official functions
as head of state. (March 24, 1999, House of Lords)
State Immunity
What is the traditional rule of State Immunity?
It exempts a state from being sued in the courts of another State without its consent
or waiver. This rule is a necessary consequence of the principles of independence and
equality of States. (USA vs Ruiz, May 22, 1985)
What is the restrictive application of State Immunity?
There is a need to distinguish the activities of states into sovereign and
governmental acts (jure imperii) and private, commercial and proprietary acts (jure

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gestionis). State immunity now extends only to acts jure imperii. This application of State
immunity is now the rule in the US, UK and other states in Western Europe.
The restrictive application of State immunity is proper only when the proceedings
arise out of commercial transactions of the foreign sovereign, its commercial activities or
economic affairs. It does not apply where the contract relates to the exercise of its
sovereign functions. (Ibid)
May the mere entering into a contract by a foreign State with a private party be
construed as the ultimate test of whether or not it is an act jure imperii or jure
gestionis?
The act of entering into a contract by a foreign state with a private party cannot be
construed as the ultimate test of whether or not it is an act jure imperii or jure gestionis.
Such act is only the start of the inquiry if the foreign state is engaged in the regular conduct
of a business. If the foreign state is not engaged regularly in a business or commercial
activity, the particular act or transaction must then be tested by its nature. If the act is in
pursuit of a sovereign activity, or an incident thereof, then it is an act jure imperii. (Republic
of Indonesia vs Vinzon June 26, 2003)
What are the examples of acts of foreign states that had been considered as an act
jure imperii by the Supreme Court?
a) The conduct of public bidding for the repair of a wharf at a US Naval station.
The projects are an integral part of the naval base which is devoted to the
defense of both the US and the Philippines, a function of the government of the
highest order; they are not utilized for nor dedicated to commercial or business
purposes. (USA vs Ruiz, 136 SCRA 487, 1987)
b) Entering into a Maintenance Agreement by Indonesia for specified equipment
at its Embassy like air conditioning units, generator sets, electrical facilities,
water heaters, and water motor pumps. The SC held that the establishment of
a diplomatic mission is an act jure imperii. The State may enter into contracts
with private entities to maintain the premises, furnishings and equipment of the
embassy and the living quarters of its agents and officials. (Republic of
Indonesia vs Vinzon, June 26, 2003)
Cite examples of acts of foreign states that had been considered as an act jure
gestionis by the Supreme Court?
Hiring of a cook in the recreation center catering to American servicemen and the
general public at the John Hay Air Station in Baguio City and the bidding for the operation
of barber shops in Clark Air Base in Angeles City (US vs Rodrigo, 182 SCRA 644, 1990)
Can there be a claim of immunity when the acts of a state official were committed
outside the scope of authority and contrary to law?
In US vs Reyes, it was held that immunity does not extend to a “public official who
is made to account in his capacity as such for acts contrary to law and injurious to the

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rights of plaintiff… The rationale for this ruling is that the doctrine of state immunity cannot
be used as an instrument for perpetrating an injustice.” (March 1, 1993)
How should a state claiming sovereign immunity proceed?

When a state or international agency wishes to plead sovereign or diplomatic

immunity in a foreign court, it requests the Foreign Office of the state where it is sued to
convey to the court that said defendant is entitled to immunity. (The Holy See vs RTC
December 1, 1994)

In the Philippines, the practice is for the foreign government or the international
organization to first secure an executive endorsement of its claim of sovereign or
diplomatic immunity. (Bernas, 2009)

What is the proper course of action that may be taken by a party aggrieved by the
acts of a foreign sovereign enjoying immunity?

He can ask his own government to espouse his cause through diplomatic
channels. (Ibid)

Explain the process of “suggestion”.

It is the procedure followed in the United States where the foreign state or the
international organization sued in an American court requests the Secretary of State to
make a determination as to whether it is entitled to immunity. If the Secretary of State
finds that the defendant is immune from suit, he, in turn, asks the Attorney General to
submit to the Court a “suggestion” that the defendant is entitled to immunity.

In England, a similar procedure is followed, only the Foreign Office issues a

certification to that effect instead of submitting a “suggestion”. (Sarmiento, 2007)

What is the practical justification for the doctrine of sovereign immunity?

The practical justification for the doctrine of sovereign immunity is that there can
be no legal right against the authority that makes a law on which the right depends. In
the case of foreign States, the rule is derived from the principle of the sovereign equality
of States, as expressed in the maxim par in parem non habet imperium. All states are
sovereign equals and cannot assert jurisdiction over one another. A contrary attitude
would “unduly vex the peace of nations.” (Sanders vs Veridiano II, 162 SCRA 88, 1988)

What are the 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:

1) When there is waiver of State immunity (Art. 7);

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 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,

trade mark, 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)

(Sarmiento, 2007)

Diplomatic and consular immunities

How can the diplomatic and consular immunities be described?

They are personal in the sense that they benefit the person but the purpose of the
immunities given to the diplomatic and consular representatives is functional, that is, to
enable them to perform their functions properly. (Bernas, 2009)

Who are diplomats?

They are foreign representatives concerned with the political relations of states.
(Ibid)

How does a diplomatic mission commence?

The head of the mission is considered as having taken up his functions in the
receiving state either when he has presented his credential or when he has notified his
arrival and a true copy of his credentials has been presented to the foreign ministry of the
receiving state. (Vienna Convention on Diplomatic Relations, 1961, Art VII, Sec 16)

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 The credentials of the diplomatic agent include chiefly the letter of credence, or
letter de creance, by means of which he is accredited to the receiving State with the
request that full faith and credit be given to his official acts on behalf of the sending state.
In addition to this document, the envoy usually carries his diplomatic passport, his official
instructions and a cipher or code book for use in sending secret communications to his
government.

Unless the receiving State had previously given its agreement to his appointment,
the diplomatic representative cannot claim the usual privileges and immunities of his
office until he is formally accepted. (Cruz, 2007)

What are the functions of a diplomatic mission?

1) Representing the sending State in the receiving State;

2) Protecting in the receiving State the interests of the sending State and of its
nationals, within the limits permitted by international law;

3) Negotiating with the Government of the receiving State;

4) Ascertaining by all lawful means conditions and developments in the receiving

State, and reporting thereon to the Government of the sending State;

5) Promoting friendly relations between the sending State and the receiving State,
and developing their economic, cultural and scientific relations. (Art 3, VCDR)

What is the nature of the diplomatic relations between states?

Diplomatic relations between states are purely by mutual consent. Before the head
of the mission is sent to the receiving state, an agreement must first be obtained. The
receiving state is under no obligation to give reasons for refusing an agreement. (Art. 4)
The “receiving State may at any time, and without having to explain its decision, notify the
sending State that the head of the mission or any member of the diplomatic staff of the
mission is persona non grata or that any other member of the staff of the mission is not
acceptable. In any such case, the sending State shall, as appropriate, either recall the
person concerned or terminate his functions with the mission. A person may be declared
non grata or not acceptable before arriving in the territory of the receiving State.” (Art. 9)

Who are the diplomatic representatives that can enjoy immunities?

1) The “head of the mission” who is the person charged by the sending State with the
duty of acting in that capacity;

2) The “members of the mission” are the head of the mission and the members of the
staff of the mission;

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 3) The “members of the staff of the mission” are the members of the diplomatic staff,
of the administrative and technical staff and of the service staff of the mission;

4) The “members of the diplomatic staff” are the members of the staff of the mission
having diplomatic rank;

5) A “diplomatic agent” is the head of the mission or a member of the diplomatic staff
of the mission;

6) The “members of the administrative and technical staff” are the members of the
staff of the mission employed in the administrative and technical service of the
mission;

7) The “members of the service staff” are the members of the staff of the mission in
the domestic service of the mission;

8) A “private servant” is a person who is in the domestic service of a member of the

mission and who is not an employee of the sending State;

9) The “premises of the mission” are the buildings or parts of buildings and the land
ancillary thereto, irrespective of ownership, used for the purposes of the mission
including the residence of the head of the mission. (Art. 1)

What are the privileges and immunities of diplomatic missions under the Vienna
Convention on Diplomatic Relations?

1) The right to use the flag and emblem of the sending State on the premises of the
mission, including the residence of the head of the mission, and on his means of
transport. (Art 20)

2) The premises of the mission shall be inviolable. The agents of the receiving State
may not enter them, except with the consent of the head of the mission. The
premises of the mission, their furnishings and other property thereon and the
means of transport of the mission shall be immune from search, requisition,
attachment or execution. (Art 22)

3) Exemption from all national, regional or municipal dues and taxes in respect of the
premises of the mission, whether owned or leased, other than such as represent
payment for specific services rendered. (Art 23)

4) The archives and documents of the mission shall be inviolable at any time and
wherever they may be. (Art 24)

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 5) The receiving State shall permit and protect free communication on the part of the
mission for all official purposes, including diplomatic couriers and messages in
code or cipher. (Art 27[1])

6) The official correspondence of the mission shall be inviolable. (Art 27[2])

7) The diplomatic bag shall not be opened or detained. (Art 27[3])

8) The fees and charges levied by the mission in the course of its official duties shall
be exempt from all dues and taxes. Art 28)

Does the Constitutional provision against alienation of lands to foreigners apply to

alienations of the same in favor of foreign governments to be used as chancery or
residence of its diplomatic representatives?

No, it does not. Article 21 of the Vienna Convention on Diplomatic Relations

provides that “the receiving State shall either facilitate the acquisition on its territory, in
accordance with its laws, by the sending State of premises necessary for its mission or
assist the latter in obtaining accommodation in some other way. It shall also, where
necessary, assist missions in obtaining suitable accommodation for their members.”

What are the privileges and immunities of diplomatic agents?

1) The person of a diplomatic agent shall be inviolable. He shall not be liable to any
form of arrest or detention. (Art 29);

2) The private residence of a diplomatic agent shall enjoy the same inviolability and
protection as the premises of the mission. (Art 30);

3) Immunity from the criminal jurisdiction of the receiving State (Art 31[1]);

4) A diplomatic agent is not obliged to give evidence as a witness. (Art 31[2]);

5) A diplomatic agent shall with respect to services rendered for the sending State be
exempt from social security provisions which may be in force in the receiving State.
(Art 33);

6) Exemption from all dues and taxes, personal or real, national, regional or municipal
(Art 34);

7) Exemption from all personal services, from all public service of any kind
whatsoever (Art 35);

8) Exemption from all customs duties, taxes, and related charges (Art 36).

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Are diplomatic agents also entitled to immunity from civil and administrative
jurisdiction of the receiving State?

Yes, diplomats shall enjoy immunity from its civil and administrative jurisdiction,
except in the case of:

1) A real action relating to private immovable property situated in the territory of the
receiving State, unless he holds it on behalf of the sending State for the purposes
of the mission;

2) An action relating to succession in which the diplomatic agent is involved as

executor, administrator, heir or legatee as a private person and not on behalf of the
sending State;

3) An action relating to any professional or commercial activity exercised by the

diplomatic agent in the receiving State outside his official functions. (Art. 31[1])

Can an action for recovery of property filed against a foreign ambassador who
failed to pay rentals for a leased personal vacation home, prosper?

Yes, the action can prosper. An ambassador does not enjoy immunity from civil
and administrative jurisdiction in the case of a real action relating to private immovable
property situated in the territory of the receiving State unless he holds it on behalf of the
sending State for the purposes of the mission. (Art 31) (Sarmiento, 2007)

In the same action for recovery of property, can the plaintiff ask for attachment?

No, plaintiff cannot ask for attachment. The properties of an Ambassador shall be
inviolable (Art 30). Furthermore, Section 4 of RA No 75 states that any writ or process
whereby:

The person of any ambassador or public minister of any foreign State, authorized and
received as such by the President, or any domestic servant of any such ambassador or
minister is arrested or imprisoned, or his goods or chattels are distrained, seized, or
attached, shall be deemed void. (Sarmiento, 2007)

Can the plaintiff in the above action stop the departure of the foreign ambassador
from the receiving State?

The plaintiff cannot stop the departure of the ambassador as the person of the
diplomatic agent shall be inviolable and he shall not be liable to any form of arrest or
detention. (Art 29)

What are the privileges and immunities of the members of the administrative and
technical staff of the mission?

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 Members of the administrative and technical staff of the mission, together with
members of their families forming part of their respective households, shall, if they are not
nationals of or permanently resident in the receiving State, be entitled to the same
privileges and immunities, except that the immunity from civil and administrative
jurisdiction of the receiving State shall not extend to acts performed outside the course of
their duties. (VCDR, Art 37[2]) (Sarmiento, 2007)

What are the privileges and immunities of the members of the service staff of a
diplomatic mission?

Members of the service staff of the mission who is not nationals or permanently
resident in the receiving State shall enjoy immunity in respect of acts performed in the
course of their duties. They shall also enjoy exemption from dues and taxes on the
emoluments they receive by reason of their employment. (VCDR, Art 37[3]) (Ibid)

What are the privileges and immunities of the private servants of members of a
diplomatic mission?

Private servants of members of the mission shall, if they are not nationals of or
permanently resident in the receiving State, be exempt from dues and taxes on the
emoluments they receive by reason of their employment. In other respects, they may
enjoy privileges and immunities only to the extent admitted by the receiving State.
However, the receiving State must exercise its jurisdiction over those persons in such a
manner as not to interfere unduly with the performance of the functions of the mission.
(VCDR, Art 37[4]) (Sarmiento, 2007)

What are the privileges and immunities of diplomatic agents, other members of the
staff of the mission and private servants who are nationals or permanent residents
of the receiving State?

Except in so far as additional privileges and immunities may be granted by the

receiving State, a diplomatic agent who is a national of or permanently resident in that
State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts
performed in the exercise of his functions. Other members of the staff of the mission and
private servants who are nationals of or permanently resident in the receiving State shall
enjoy privileges and immunities only to the extent admitted by the receiving State. (VCDR,
Art.38) (Ibid)

Does the immunity of a diplomatic agent from the jurisdiction of the receiving State
also exempt him from the jurisdiction of the sending State?

No, he will always be subject at all times to the jurisdiction of his State.(VCDR, Art.
31[4]) (Ibid)

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Is the personal baggage of a diplomatic agent subject to customs check and
inspections?

No, the personal baggage of a diplomatic agent shall be exempt from inspection,
unless there are serious grounds for presuming that it contains articles that are neither
for the official use of the diplomatic mission nor for the personal use of the diplomatic
agent or members of his family forming part of his household or articles the import or
export of which is prohibited by the law or controlled by the quarantine regulations of the
receiving State. In any case, such inspection shall be conducted only in the presence of
the diplomatic agent or of his authorized representative. (VCDR, Art. 36[2]) (Ibid)

May the immunity of diplomatic agents from the jurisdiction of the receiving State
be waived?

The immunity from jurisdiction of diplomatic agents and of persons enjoying

immunity under Article 37 may be waived by the sending State. (VCDR, Art 32[1])
(Bernas, 2009)

May the waiver of immunity of diplomatic agents from the jurisdiction of the
receiving State be impliedly waived?

As a general rule, waiver of diplomatic immunity must always be express.

However, the initiation of proceedings by a diplomatic agent shall preclude him from
invoking immunity from jurisdiction in respect of any counterclaim directly connected with
the principal claim. (VCDR, Art.32) (Sarmiento, 2007)

Does waiver of diplomatic immunity include consent to the execution of an adverse

judgment against the diplomatic agent?

No, a separate waiver is necessary for the execution of an adverse judgment

against a diplomatic agent. Waiver of immunity from jurisdiction in respect of civil or
administrative proceedings shall not be held to imply waiver of immunity in respect of the
execution of the judgment. (VCDR, Art. 32[4])

Are members of the family of a diplomatic agent entitled to the privileges and
immunities accorded to diplomatic agents?

Yes, provided they form part of the household of the diplomatic agent and they are
not nationals of the receiving State. (VCDR, Art 37[1])

What are the duties of all persons enjoying such privileges and immunities?

It is their duty to respect the laws and regulations of the receiving State (Art. 41)
and not to practice for personal profit any professional or commercial activity in the
receiving State (Art 42)

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When shall a person entitled to privileges and immunities enjoy them?

He shall enjoy them from the moment he enters the territory of the receiving State
on proceeding to take up his post or, if already in its territory, from the moment when his
appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be
agreed. (VCDR, Art 39[1]) (Bernas, 2009)

When shall such privileges and immunities cease?

When the functions of a person enjoying privileges and immunities have come to
an end, such privileges and immunities shall normally cease at the moment when he
leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist
until that time, even in case of armed conflict. However, with respect to acts performed
by such a person in the exercise of his functions as a member of the mission, immunity
shall continue to subsist. (VCDR, Art 39[2]) (Bernas, 2009)

Consuls and consular immunities

Who are consuls?

They are foreign representatives who attend to administrative and economic

issues such as the issuance of visas. They are not concerned with political matters. (Ibid)

How is the head of a consular mission admitted to the exercise of his functions?

After being given the letter patent or lettre de provision, which is the commission
issued by the sending State, he is admitted as head of a consular mission by an
authorization from the receiving State termed as exequatur. There is no prescribed form,
but without it, he may not enter upon his duties. The receiving State may at any time
notify the sending State that a consular officer is persona non grata or that any other
member of the consular staff is not acceptable. In that event, the sending State shall, as
the case may be, either recall the person concerned or terminate his functions with the
consular post. (Ibid)

What are the functions of consuls?

The functions of consuls may be divided into duties pertaining to commerce and
navigation, duties respecting the issuance of passports and visas, and duties of protection
of nationals. (Cruz, 2000) (VCCR, Art. 5[a-m])

What are the duties of the receiving State with respect to a consular mission?

The receiving State has the duty to protect the consular premises, archives and
interests of the sending state. (Vienna Convention on Consular Relations, Arts 27, 31, 32,

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33) The receiving State must insure the unimpeded functioning of the consular offices.
(Ibid)

What are the privileges and immunities of consular officers?

1) Consular officers shall not be liable to arrest or detention pending trial, except in
the case of a grave crime and pursuant to a decision by the competent judicial
authority. (VCCR, Art 41)

2) Consular officers and employees shall not be amenable to the jurisdiction of the
judicial or administrative authorities of the receiving State in respect of acts
performed in the exercise of consular functions, except in a civil action either:

a) Arising out of a contract concluded by a consular officer or a consular

employee in which he did not contract expressly or impliedly as an agent of
the sending State; or

b) By a third party for damage arising from an accident in the receiving State
caused by a vehicle, vessel or aircraft (VCCR, Art 43)

3) Members of a consular post are under no obligation to give evidence concerning

matters connected with the exercise of their functions or to produce official
correspondence and documents relating thereto. They are also entitled to decline
to give evidence as expert witnesses with regard to the law of the sending State.
(VCCR, Art 44)

4) Consular officers and employees shall also be exempted from registration of aliens
and residence permits, work permits, taxation, custom duties and inspections, and
from personal services and contribution. (Sarmiento, 2007)

Distinguish the privileges or immunities of diplomatic envoys and consular officers

from criminal or civil jurisdiction of the receiving State.

As to criminal jurisdiction, diplomatic envoys shall not be liable to any form of arrest
or detention and they shall enjoy immunity from the criminal jurisdiction of the receiving
State. (VCDR, Arts 29, 31) Consular officers, on the other hand, shall not enjoy immunity
from criminal jurisdiction. If criminal proceedings are instituted against a consular officer,
he must appear before the competent authorities. However, they shall not be liable to
arrest or detention pending trial, except in the case of a grave crime and pursuant to a
decision of a competent judicial authority. (VCCR, Art 41)

As to civil jurisdiction, diplomatic envoys shall enjoy immunity, except in the case
of a) a real action relating to private immovable property situated in the territory of the
receiving State, b) an action relating to succession in which they are involved as a private

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person and not on behalf of the sending State, c) an action relating to any professional or
commercial activity exercised by the diplomatic envoys in the receiving State outside their
official functions. (VCDR, Art 31) Consular officers, on the other hand, shall also enjoy
immunity from civil jurisdiction, except in respect of a civil action either: a) arising out of a
contract concluded by a consular officer in which the officer acted in his personal capacity;
or b) by a third party for damage arising from an accident in the receiving State caused
by a vehicle, vessel or aircraft. (VCCR, Art 43).

May a consul claim immunity from criminal jurisdiction of the local court ?

No, a consul is not entitled to the privileges and immunities of an ambassador or

minister but is subject to the laws and regulations of the country to which he is accredited.
A consul is not exempt from criminal prosecution for violations of the laws of the country
where he resides.

Article 41 of the Vienna Convention on Consular Relations provides that if criminal

proceedings are instituted against a consular officer, he must appear before the
competent authorities. Consular officers shall not be liable to arrest or detention pending
trial, except in case of a grave crime and pursuant to a decision by the competent judicial
authority. (Sarmiento, 2007)

Who may waive the privileges and immunities of consular officers and employees?

The sending State may waive, with regard to a member of the consular post, any
of the privileges and immunities afforded to the latter. The waiver shall in all cases be
express and shall be communicated to the receiving State in writing. However, the
initiation of proceedings by a consular officer or a consular employee in a matter where
he might enjoy immunity from jurisdiction shall preclude him from invoking immunity from
jurisdiction in respect of any counterclaim directly connected with the principal claim.
(VCCR, Art. 45) (Ibid)

May the waiver of immunity from jurisdiction for purposes of civil or administrative
proceedings deemed to imply the waiver of immunity from the measures of
execution resulting from the judicial decision?

No, a separate waiver shall be necessary for the execution of a judicial decision.
(VCCR, Art 45[4])

Immunities of International Organizations

What is the basis of immunity of international organizations?

The basis of immunity of international organizations is the need for the effective
exercise of their functions.

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What are the bases of immunities and privileges of the UN?

They are Article 105 of the UN Charter, the General Convention on the Privileges
and Immunities of the United Nations (1946) and by the Convention and Privileges of
Specialized Agencies (1947).

What are the privileges and immunities of the UN?

1) The Organization, its property and assets wherever located and by

whomsoever held, shall enjoy immunity from every form of legal process except
in so far as in any particular case it has expressly waived its immunity. It is,
however, understood that no waiver of immunity shall extend to any measure
of execution; I(Art II, Sec 2)

2) Its premises shall be inviolable. Its property and assets, wherever located and
by whomsoever held, shall be immune from search, requisition, confiscation,
expropriation and any other form of interference. (Art. II, Sec 3)

3) Its archives, and in general all documents belonging to it or held by it, shall be
inviolable wherever located. (Art. II Sec 4)

4) The Organization, its assets, income and other property shall be exempt from
all direct taxes, customs duties and prohibitions and restrictions on imports and
exports in respect of articles imported or exported by the UN for its official use
and in respect of its publications. (Art II, Sec 7) – Convention on the Privileges
and Immunities of the UN

What are the privileges and immunities of the Secretary General and other officials
of the UN?

1) Immunity from legal process in respect of words spoken or written and all acts
performed by them in their official capacity;

2) Exemption from taxation on the salaries and emoluments paid to them by the
UN;

3) Immunity from national service obligations;

4) Immunity, together with their spouses and relatives dependent on them, from
immigration restrictions and alien registration;

5) To be accorded the same privileges in respect of exchange facilities as are

accorded to the officials of comparable ranks forming part of diplomatic
missions to the Government concerned;

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 6) To be given, together with their spouses and relatives dependent on them, the
same repatriation facilities in time of international crisis as diplomatic envoys;

7) To have the right to import free of duty their furniture and effects at the time of
first taking up their post in the country in question. (Art V, Sec 18 of the
Convention on the Privileges and Immunities of the United Nations)

What are the privileges and immunities of the representatives of states to the
principal and subsidiary organs of the UN and to conferences convened by the UN?

1) Immunity from personal arrest or detention and from seizure of their personal
baggage, and, in respect of words spoken or written and all acts done by them
in their capacity as representatives, immunity from legal process of every kind;

2) Inviolability for all papers and documents;

3) The right to use codes and to receive papers or correspondence by courier or

in sealed bags;

4) Exemption in respect of themselves and their spouses from immigration

restrictions, aliens registration or national service obligations in the state they
are visiting or through which they are passing in the exercise of their functions;

5) The same facilities in respect of currency or exchange restrictions as are

accorded to representatives of foreign governments on temporary official
missions;

6) The same immunities and facilities in respect of their personal baggage as are
accorded to diplomatic envoys, and also;

7) Such other privileges, immunities and facilities not inconsistent with the
foregoing as diplomatic envoys enjoy, except that they shall have no right to
claim exemption from customs duties on goods imported (otherwise than as
part of their personal baggage) or from excise duties or sales taxes. (Art IV,
Sec 11 of the Convention on the Privileges and Immunities of the UN)

The Act of State Doctrine

May the acts of a sovereign power be impugned in the courts of another sovereign
country?

It is the doctrine that protects the sovereignty of states by judicial deference to the
public acts of a foreign state done on that state’s territory. Under this doctrine, “the courts
of one country will not sit in judgment on the acts of the government of another, done
within its own territory”. (Underhill v. Hernandez)

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What is the nature of the act of state doctrine?

It is a rule not of international law but of judicial restraint in domestic law whereby
courts refrain from making decisions in deference to the executive who is the principal
architect of foreign relations. (Bernas, 2009)

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 CHAPTER 12

INTERNATIONAL HUMAN RIGHTS LAW

What were the earlier doctrines preceding the developing doctrine on human rights
prior to the birth of the UN?
These include doctrines on humanitarian intervention, state responsibility for injury
to aliens, protection of minorities, League of Nation’s Mandates and Minorities Systems,
and international humanitarian law (which is the human rights law in time of war).
What is the difference between the Asian and Western view on human rights?
The Western view puts emphasis on the individual while Asians give emphasis on
the community.
How did the Western tradition on human rights develop?
It has developed from the Natural Law view that certain rights exist as a result of
a law higher than positive or man-made law. This higher law itself emanates from the
nature of man which demands certain immunities or liberties.
This view flourished in the 17th century and provided recourse against arbitrary
power. Much of what the Natural Law held has already become part of customary or
conventional law and has served as a counterforce against a positivist emphasis on the
importance of the state.
What are the three (3) generations of human rights?
The first generation consists of the traditional civil and fundamental rights; the
second generation, social and economic rights; third generation, right to peace, clean
environment, self-determination, common heritage of mankind, development, minority
rights. There is still a dispute about the cultural in human rights.
What distinguishes post WWII developments from earlier human rights tradition?
It is the growing acceptance of the view that the way nations treat people under
their jurisdiction is no longer just a domestic concern but also one that calls for the
attention of the international community. This view represents a chipping away at the old
concept of sovereignty and it recognizes that individuals can be subjects of international

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law and that they can find protection and remedies within the international community
against abuses by their own government.
What is the role played by the UN in the development of the new international law
on human rights?
It became the cradle for the development of the new international law on human
rights. However, the UN Charter's own provisions on human rights were preliminary.
They did not make human rights law but they represented a beginning which later would
develop into international law.
What then are the notable defects/flaws in the provisions of the Charter?
In the charter, there are no definitions of human rights, there is no clear
commitment of members to avoid violations, and there is set down no instrument for the
correction or vindication of violations of human rights that might occur. Nations' sensitivity
to their sovereignty is reflected in Article 2(7) of the UN Charter. (provision on non-
interference of UN with domestic affairs)
What is the Universal Declaration of Human Rights?
It was adopted and proclaimed by the General Assembly on December 10, 1948.
It was not seen as a law but only as a “common standard” for nations to attempt to reach.
Its authority is primarily moral and political.
What is the distinction between a mere declaration and a covenant?
1) The core of an international covenant lies a meeting of minds of the
contracting parties on the specific duties and obligations they intend to
assume, and the agreement that the undertakings must be effectively
informed. A declaration by contrast admits the presumption that something
less than full effectiveness in terms of law is intended.
2) A covenant leaves no doubt about the legal nature of the provisions it
contains, whereas a declaration is often deemed to enunciate moral rules
only.
3) The vinculum juris created by a covenant generally absent from a
declaration, places a duty on the contracting parties to bring their laws and
practices into accord with the accepted international obligations and not to
introduce new laws or practices which would be at variance with such
obligations. (Vratislav Pechota)
How does The Covenant on Civil and Political Rights provide for right to life, liberty
and property and equality?
The Covenant's provision on the right to life in Article 6(1) and its provision on
genocide Article 6(4) and the general guarantee of liberty in Article 9(1) do not go beyond
what Article III, Section 1 of the Philippine Bill of Rights guarantees. The Covenant does

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not also say when protected life begins, whereas the Philippines protects “the life of the
unborn from conception.”
There is likewise no provision on the right to property in the Covenant though there
exists a provision in Article 17(1) in the Universal Declaration. It has been explained that
in such a time “when property rights had lost much of their previous sanctity, it was
inevitable that the Commission would find it difficult to draft a text that would command
general acceptance.” (Pechota)
The Covenant in Article 6(2) expresses a bias for the abolition of the death penalty
and allows its imposition, in countries which still have a death penalty, only after conviction
for the most serious crimes. The Covenant adds in Article 6(6) that “Nothing in this article
shall be invoked to delay or to prevent the abolition of capital punishment by any State
Party to the present Covenant.” In fact, in the Second Optional Protocol to the Covenant,
signed at the General Assembly meeting on December 15, 1989, Article 1 says: 1) No
one within the jurisdiction of a State Party to the Present Protocol shall be executed. 2)
Each State Party shall take all necessary measures to abolish the death penalty within its
jurisdiction.”
The 1987 Constitution prohibited the imposition of the death penalty unless a new
law is passed imposing death for “heinous crimes.” Congress restored the death penalty
for heinous crimes but RA 9346 has since disallowed it.
Provisions on physical liberty, and arrests and detention found in Articles 8, 9 and
11 of the Covenant are more than adequately covered by corresponding provisions of the
Bill of Rights.
The rights of an accused found in Articles 14 and 15 of the Covenant have long
been provided for in the Philippine accusatory system as found in the Constitution.
However, the Covenant in Article 14 is more restrictive in the matter of publicity of criminal
proceedings “where the interest of juvenile persons otherwise requires or the proceedings
concern matrimonial disputes or the guardianship of children.” These standards would
not easily pass the Philippine tests for publicity and free press.
The Covenant also provides in Article 9(5) that a victim of unlawful arrest or
detention shall have an enforceable right to compensation; and in Article 14(6) that a
victim of miscarriage of justice “shall be compensated according to law, unless it is proved
that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.”
The Philippine Constitution only asks compensation in Section 12(4) of the Bill of Rights
where the legislature is asked to compensate violations of rights of a person under
investigation.
The guarantee of equality found in Article 26 of the Covenant is the Bill of Rights'
more terse “equal protection” clause in Article III, Section 1. The guarantee is of legal
equality. It does not embody the aspiration towards lesser material inequality.
How does the Covenant provide for torture, ill-treatment and prison conditions?

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 Articles 7 and 10 of the Covenant prohibit torture and other forms of ill-treatment
that offend not only against bodily integrity but also against personal dignity and the
requirement of humane prison conditions.
The UN Human Rights Commission has expressed the view that imprisonment “ïn
conditions seriously detrimental to a prisoner's health” constitutes violations of Articles 7
and 10(1) of the Covenant.
What are three rights that constitute freedom of movement under the Convention
and what are the limitations to these rights?
These are found in Articles 12(1) and (2) and these include the rights to travel
within the country, the right to leave the country and the right to change one's residence.
The limitations on these three rights are found in Article 12(3) and consist of” those
provided by law, are necessary to protect national security, public order (ordre public),
public health or morals or the rights and freedoms of others and are consistent with the
other rights in the present Covenant.”
They are similar to the limitations found in the Philippine Bill of Rights except that
unlike the Philippine provision, it does not require a court order for impairment of liberty
of abode.
The Covenant unlike the Philippine Constitution, in Article 12(4) separates the right
to return to one's country from the right to leave one's country. The limit to the right to
return to one's country in the Covenant is implied in the word “arbitrarily”. “No one shall
be arbitrarily deprived of the right to enter his own country.”” The Covenant intends to
make the limitation narrower than for the right to leave the country since exile is now
prohibited by customary law and the prohibition of exile may even be jus cogens.
How did the Philippine Supreme Court interpret the separation of the right to leave
one's country and the right to return to one's country?
The Court's argument was that since the Declaration of Human Rights and the
Covenant on Human Rights separate the right to leave the country from the right to return
to one's country, the two rights are distinct and the right to return to one's country is not
guaranteed by the specific guarantees for the right to travel and liberty of abode and that
therefore President Marcos could not appeal to Section 6 of the Bill of Rights. The vote
was 8 to 7.
Distinguish “having a legal personality” from “having a capacity to act.”
Legal personality belongs to all, whether citizens or aliens while capacity to act
may not be available to some by reason, for instance of infancy, minority, or insanity.
What is meant by the guarantee to protect the right to be recognized as a person
before the law, in Article 16 of the Covenant?
The guarantee in its fullness means that state parties must “treat every human
being everywhere, male or female, young or old, alien or citizen, as a person before the

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law, enjoying the protection of the law and of the forces of the law, with power to have
rights and assume obligations: to own, acquire, and dispose of property; to make
contracts; to sue and be sued; and to invoke other legal remedies.”
No specific guarantee appears in the Constitution but that is presumed to exist
runs through the entire document.
Is there any statement in the Covenant when does one become a person?
It does not. The Philippine Constitution protects “the life of the unborn from
conception;” but it does not say that the unborn is a person. Though the Civil Code says
that for purposes beneficial to him the unborn is considered a person.
What are the limits on external exercise of freedom of thought, conscience and
religion?
External exercise of freedom of thought, conscience and religion is guaranteed
subject to the protection of public safety, order, health, or morals or the fundamental rights
of others.
What are the two-fold aspect of the concern for minorities?
The first is the fear of “a secessionist movement by minorities, threatening
territorial integrity of the state, or about the danger of interference by other states with
which the minorities are connected by ties of race, national origin, language, or religion.
The second is a genuine “concern for the human rights of minorities and the desire “that
minorities will flourish so as to preserve that diversity of the human race.”
What are the two important rights covered by the right to self-determination?
1) the right “freely to determine their political status and freely pursue their
economic, social and cultural development”;
2) the right “for their own ends, to freely dispose of the natural wealth and
resources without prejudice to any obligations arising out of international
cooperation, based upon the principle of mutual benefit, and international
law.”
But minorities do not have a right of self-determination in the sense of the right to secede.
What are the internal and external aspects of self-determination?
The internal right of self-determination consists of the right “freely to determine
their political status and freely pursue their economic, social and cultural development”
and the right, “for their own ends, to freely dispose of the natural wealth and resources
without prejudice to any obligations arising out of international cooperation, based upon
the principle of mutual benefit, and international law.” These also necessarily include the
other related political rights.

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 The external right of self-determination belongs to colonies and to non-self-
governing and trust territories.
What is the nature and significance of the Protocol to the Covenant?
It was adopted by the United Nations on December 16, 1966 as a supplement to
the Covenant on Civil and Political Rights and entered into force on March 23, 1976. The
Philippines has ratified the protocol.
This separate treaty is designed to enable private parties who are victims of human
rights violations. However, complaints may be filed only against states which have ratified
the Protocol. There is an eighteen-member Human Rights Committee created by the
Covenant which receives and handles the complaints.
Why is there a division between civil and political rights, in one hand, and
economic, social and cultural rights, on the other?
The reasons for the division are both ideological and practical.
Ideologically, the contest was between Western countries on the one hand and
socialist and Third World countries on the other. The American delegation argued that its
government would find difficulty in accepting a treaty containing economic and cultural
rights beyond those guaranteed by the Constitution. For the socialist and Third World
countries, on the other hand, the absence of economic, social and cultural guarantees
could render civil and political guarantees meaningless.
On the practical level, it became obvious that implementing civil and political
guarantees, the classical “Thou shalt nots” of the Western tradition, could be done
immediately; whereas the implementation of economic, social and cultural rights could
only be done gradually and dependently on development conditions. Thus, the decision
to divide, which would at least assure approval of a document on civil and political rights.
However, Article I of both Covenants say exactly the same thing about the right of
self-determination of people. There are substantial overlapping on other subjects of the
Covenants.
What are the rights included in the Covenant on Economic, Social and Cultural
Rights?
Included are the social welfare rights stated in detail which consist of the right to
work (Article 6); to favorable conditions of work (Article 7), to form free trade unions
(Article 8), to social security and insurance (Article 9), to special assistance for families
(Article 10), to adequate standard of living (Article 11), to the highest standard of physical
and mental health (Article 12), to education including compulsory primary education
(Article 13 & 14), and to the enjoyment of cultural and scientific benefits and international
contracts (Article 15).

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These correspond to the economic, social and cultural rights that are also found in the
Constitution, principally Article XIII (Social Justice), Article XIV (Education, Science and
Technology, Arts, Culture, and Sports), and Article XV (The Family).
What is the duty of the Philippines to implement provisions of these international
human rights law?
Since the Philippines is a party not only to the UN Charter and the Universal
Declaration of Human Rights but also to the two Covenants as well as to the Optional
Protocol to the Covenant on Civil and Political Rights, it is bound, both in its domestic
sphere and its foreign relations, “to bring its laws and practices into accord with the
accepted international obligations and not to introduce new laws or practices which would
be at variance with such obligations.” The duty of each State Party to implement the
Covenant on Civil and Political Rights is provided for in its Article 2. (Bernas, 2009)
Treaty commitments become part of domestic law. The self-executing provisions
of the Covenants must be implemented in domestic law. Those which are not, must be
attended to by “necessary steps, in accordance with its constitutional processes and with
the provisions of the present Covenant”, which may either be legislative or by executive
measures.
What principle governs the duty of each State Party to implement the provisions of
the Covenant on Economic, Social and Cultural rights?
It is the principle of progressive realization as embodied in Article 2, thereof. Each
State Party is mandated to take steps, individually and through international assistance
and cooperation, especially economic and technical, to the maximum of its available
resources, with a view to achieving progressively the full realization of the rights
recognized in the Convention by all appropriate means, including particularly the adoption
of legislative measures.
Progressive realization means “that a state is obligated to undertake a program of
activities… and to realize those rights which are “recognized” by the Economic Covenant.
While the obligation of progressive realization is limited by resource constraints, the
Economic Covenant indicates that priority should be given to social welfare and that the
level of effort should increase over time. These obligations apply to any state that has
ratified the Economic Covenant, regardless of that state’s economic resources.”
What are the other conventions on Human Rights?
These include the 1948 Genocide Convention, the 1966 Convention on the
Elimination of All Forms of Racial Discrimination, the 1979 Convention on the Elimination
of All Forms of Discrimination Against Women, the 1984 Convention Against Torture and
Other Cruel, Inhuman, or Degrading Treatment or Punishment, the 1989 Convention on
the Rights of the Child, and the 1990 Convention on Migrant Workers.
What are some human rights principles that have become customary law in the
light of state practice?

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 These include the prohibition of torture, genocide, slavery and the prohibition of
discrimination.
What are the two important procedures being adopted by the Human Rights
Commission for responding to violation of human rights?
An important UN body is the Human Rights Commission, a subsidiary organ of
ECOSOC. It is adopting two different procedures for responding to violations of human
rights.
1) Confidential consideration under ECOSOC Resolution 1503
It is also known as the 1503 Procedure or confidential procedure. It
authorizes the Sub-Commission on Prevention of Discrimination and Protection of
Minorities to appoint a working group consisting of not more than five members to
meet once a year in private meetings to consider all communications, including
replies of the government concerned, with a view to bringing to the attention of the
Sub-Commission those communications which appear to reveal a pattern of gross
and reliably attested violations of human rights.
The confidential findings of the Sub-Commission are brought to the
attention of the Commission on Human rights. The Commission on Human Rights
is expected to submit its report and recommendation to the Economic and Social
Council. The procedure is kept confidential until such time as the Commission on
Human Rights decided to make recommendation to the ECOSOC.
2) Public debate procedure under ECOSOC Resolution 1235
The Commission on Human Rights was established in 1946 as a subsidiary
organ of ECOSOC. In 1967, ECOSOC Resolution 1235 authorized the
Commission and its Subsidiary Commission on Prevention of Discrimination and
Protection of Minorities to examine reports relevant to gross violations of human
rights and to examine whether the violations revealed a consistent pattern and
thereafter make recommendations to ECOSOC.
Two types of activities are carried out by this procedure: First, it holds
annual public debates in which governments and NGOs are given the opportunity
to identify publicly country specific situations which deserve attention. Second, it
engages in studies and investigations of particular situations through the use of
various techniques the Commission might deem appropriate.
What can result from these procedures?
Results may include embarrassment of countries referred that might generate
change in policy; pressure on government to take the issue on a bilateral or multilateral
level; statements of exhortation from the Commission or call from the Commission for all
available information; the Commission might appoint a Special Rapporteur to examine

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and submit a report on the issue; the Commission might ask the Security Council to take
up the issue with a view to promulgating sanctions.
What is the International Criminal Court?
It is the first permanent, treaty based, international criminal court established to
promote the rule of law and ensure that the gravest international crimes do not go
unpunished.
It shall be a permanent institution and shall have the power to exercise its
jurisdiction over persons for the most serious crimes of international concern, as referred
to in the Rome Statute, and shall be complementary to national criminal jurisdictions.
(Rome Statute, Art. 1) (Sarmiento, 2007)
It was established by the Rome Statute of the International Criminal Court on July
17, 1998, when 120 States participating in the “United Nations Diplomatic Conference of
Plenipotentiaries on the Establishment of an International Criminal Court” adopted the
Statute. The Statute enters into force on July 1, 2002 and anyone who commits any of
the crimes under the Statute after this date will be liable for the prosecution by the Court.
What is the Rome Statute?
The Rome Statute established the ICC. The Statute was opened for signature by
all states in Rome on July 17, 1998 and had remained open for signature until December
31, 2000 at the UN Headquarters in New York. The Statute entered into force on July 1,
2002.
May the provisions of the Rome Statute be given retroactive effect?
No, the Rome Statute applies the principle of non-retroactivity ratione personae.
Article 24 of the Statute states that “no person shall be criminally responsible under this
Statute for conduct prior to the entry into force on July 1, 2002 and therefore crimes
committed prior to that date will not be liable for prosecution by the ICC.
Where is the seat of the ICC?
The seat of the Court is The Hague in The Netherlands. The Court will be
temporarily housed at “de Arc” on the outskirts of The Hague before moving to its
permanent premises at the Alexanderkazerne. (Art. 3)
Does the ICC have international legal personality?
Yes, the Court shall have international legal personality. It shall also have such
legal capacity as may be necessary for the exercise of its functions and the fulfillment of
its purposes.
What are the crimes falling under the jurisdiction of the ICC?

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 The jurisdiction of the Court shall be limited to the most serious crimes of concern
to the international community as a whole. The Court has jurisdiction in accordance with
this Statute with respect to the fo9llowing crimes:
1) The crime of genocide;
2) Crimes against humanity;
3) War crimes;
4) The crime of aggression.
Would the ICC replace national or domestic criminal courts?
No, it will not replace national or domestic courts but will be complementary to
national criminal jurisdiction. The Court will only investigate and prosecute if a State is
unwilling or unable to genuinely prosecute. This will be determined by the judges.
Unjustified delays in proceedings as well as proceedings which are merely intended to
shield persons from criminal responsibility will not render a case inadmissible before the
ICC (Art. 17)
May the accused be tried in absentia before the ICC?
No, the Rome Statute applies the principle of presence. Article 63 of the Statute
states that the accused shall be present during the trial.
However, if the accused, being present before the Court, continues to disrupt the
trial, the Trial Chamber may remove the accused and shall make provision for him or her
to observe the trial and instruct counsel from outside the courtroom, through the use of
communications technology, if required. Such measures shall be taken only in
exceptional circumstances after other reasonable alternatives have proved inadequate,
and only for such duration as is strictly required.
Is the rule on presumption of innocence applicable to the ICC?
Yes, Article 66 of the Statute affirms the rule on presumption of innocence until
proved guilty before the Court in accordance with the applicable law. The onus (burden)
is on the Prosecutor to prove the guilt of the accused and in order to convict the accused,
the Court must be convinced of the guilt of the accused beyond reasonable doubt.

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 CHAPTER 13

PEACEFUL SETTLEMENT OF
INTERNATIONAL DISPUTES
What is international dispute?
A dispute in international law is a technical term which means “a disagreement on
a point of law or fact, a conflict of legal views or interests between two persons.” A
disagreement does not amount to a dispute if its resolution would have no practical effect
on the relationship between the parties. Ex: disagreements over the interpretation of a
treaty or about state boundaries or about state responsibility (Bernas, 2009)

An international dispute is an actual disagreement between states regarding the

conduct to be taken by one of them for the protection or vindication of the interests of the
other. Where the disagreement has not yet ripened into a full-blown conflict or the issues
have not yet been sufficiently formulated and defined, there is what is known as a
situation. A situation is, therefore, the initial stage of a dispute. (Cruz, 2000)

What are the two kinds of international dispute?

1) Legal if it involves justiciable rights based on law or fact susceptible of adjudication

by a judicial or arbitral tribunal.

Ex. Conflict on the interpretation of a treaty or the ascertainment of the boundaries

of adjacent states; and

2) Political if it cannot be decided by legal processes on the basis of the substantive

rules of international law because the differences of the parties spring from
animosities in their mutual attitudes rather than from an antagonism of legal rights.

Ex. When a state, in the exercise of its sovereign rights, enacts immigration a law
discriminating against the nationals of another state over the latter’s protest. Here,
the solution cannot be found in the courts but through diplomacy. (Ibid)

Would a suit brought by a State in behalf of one of its nationals against another
State constitute an international legal dispute between the two States?
Yes, upon the filing of a suit by a State in behalf of its national, the dispute then
entered upon a new phase; it entered the domain of International Law, and became a

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dispute between two States. (Sarmiento, 2007)

Is there any obligation on the part of each state party to a dispute to settle?
There are none except those which according to Article 33 of the UN Charter, might
endanger peace and security. However, if a decision is made to settle disputes, the
obligation is to settle them by peaceful means. (Bernas, 2009)

What is the role of UN in the settlement of international disputes?

One of the principal purposes of the UN is to bring about the settlement of
international disputes by peaceful means, and in conformity with the principles of justice
and International Law. (UN Charter Art.1.1)

The UN is also based on the principle that all its members shall settle their
international disputes by peaceful means in such a manner that international peace and
security, and justice, are not endangered. (Ibid, Art 2, 3)

Article 33 of the Charter further calls for peaceful settlement of disputes by

negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to
regional agencies or arrangements, and other peaceful means of their own choice.
(Sarmiento, 2007)

May a member of the UN bring a dispute to the attention of the General Assembly?
Yes, any member of the UN may bring any dispute, or any situation which might
lead to international friction or give rise to a dispute, any situation of the nature to the
attention of the General Assembly. It may also be brought directly to the attention of the
Security Council. (UN Charter, Art. 35.1) (Ibid)

May a state which is not a member of the UN bring a dispute to the attention of the
Security Council or of the General Assembly?
Yes, a non-member state may bring to the attention of the Security Council or of
the General Assembly any dispute provided that:

1) It is a party to the dispute; and

2) It accepts in advance, for the purposes of the dispute, the obligations of
pacific settlement provided in the Charter. (Ibid)

What are the powers of the General Assembly with respect to the disputes that are
brought to its attention?
They are limited to establishing fact-finding missions and making
recommendations. But although the actions of the General Assembly may have
significant political influence, states are under no obligation to cooperate with the fact-
finding missions or to follow recommendations. (Ibid)

What are the powers of the Security Council with respect to the disputes that are
brought to its attention?
Under Article 33 of the UN Charter, the SC shall, when it deems necessary, call

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upon the parties to settle their disputes by peaceful means, like negotiation, enquiry,
mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or
arrangements, or other peaceful means of their own choice.

Under Article 34, the Security Council may investigate any dispute in order to
determine whether the continuance of the dispute or situation is likely to endanger the
maintenance of international peace and security and if so, under Article 37, it shall decide
whether to take appropriate action or to recommend such terms of settlement as it may
consider appropriate.

In making recommendations, however, the SC should also take into consideration

that legal disputes should as a general rule be referred by the parties to the ICJ. (UN
Charter, Art 36.3) (Ibid)

How may the peaceful means of settling disputes under the UN Charter be
classified?
1) Non-judicial methods- negotiation, enquiry, mediation, conciliation
2) Quasi-judicial method- arbitration,
3) Judicial method

The above means are also classified into diplomatic and judicial methods. (Bernas, 2009)

What are the amicable means of settling international disputes?

1) Negotiation – a process of bargaining between the two parties in search of a
solution of disputes (Sarmiento, 2007); it is generally the first step taken in the
settlement of an international dispute which is a discussion undertaken by the
parties themselves of their respective claims and counterclaims with a view to their
just and orderly adjustment; the conversations may be brief or protracted,
depending on the issues in contention and perhaps also on considerations of
national pride; where the talks prosper and agreement is reached, it is usually
formalized in a treaty or, more directly effected through the rectification of the injury
caused to the claimant state. (Cruz, 2000)

2) Enquiry – a method of elucidating the points of difference and agreement to both

sides in the hope that it would facilitate the understanding of the issues of the
disputes. The UN is empowered to call the parties concerned to explain their
position on a dispute and may attempt to narrow their differences, reconcile their
opposing views and if necessary recommend a just and fair solution. Ex. In 1992-
1993, US and Chile, set up an Enquiry Commission to determine the amount of
damages to be paid to the \us by Chile for allegedly killing two persons in
Washington by Chilean intelligence officers and the dispute was
settled.(Sarmiento, 2007); the findings of the party making the inquiry are not
conclusive upon the disputing states but they nevertheless may exert a strong
moral influence in the settlement of the conflict.(Cruz, 2000)

3) Good Offices – or sometime referred to as “quiet diplomacy” since the process

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 often involves entrusting the dispute to personalities with special qualification on
whom both parties agree. This might involve heads of State or the Secretary-
General of the UN, or their designees; (Sarmiento, 2007); this is usually employed
when the parties are no longer on speaking terms, or when they have severed
diplomatic relations or have actually commenced hostilities. Ex. The Russo-
Japanese War was terminated through the good offices of President Theodore
Roosevelt of the US who succeeded in bringing the parties together to the
conference table for the conclusion of a negotiated peace. (Cruz, 2000)

4) Mediation – like good offices, mediation is an adjunct of negotiation, but with the
mediator as an active participant, authorized, and even expected, to advance his
own proposals and to interpret, as well as to transmit, each party's proposals to
each other. Ex. In 1978, US President Jimmy Carter mediated between Egypt and
Israel and achieved the Camp David Agreement in March 1979. Under the
agreement, Egypt recognized diplomatically Israel and in return Israel withdrew its
troops from Sinai Peninsula, occupied by Israel in the 1967 war; (Sarmiento, 2007)
here, the third party has more active involvement and does not merely provide the
opportunity for the antagonists to negotiate but also actively participates in their
discussions in order to reconcile their conflicting claims and appease their feelings
of resentment; the suggestions of the mediator are merely persuasive, however,
and may be rejected without offense by the parties to the dispute.(Cruz, 2000)

5) Conciliation – a method that combines the characteristics of both enquiry and

mediation. While mediation is ordinarily carried out by one person, conciliation is
usually conducted by an organization (such as ASEAN or NATO). Ex. Malaysia,
Bangladesh and Pakistan were given the task by OIC to broker peace between
Iran and Iraq war during the 80's) (Sarmiento, 2007); the recommendations made
are not binding though unlike in mediation, the services of the conciliator are not
offered by the third party but solicited by the parties in dispute. (Cruz, 2000)

6) Arbitration – it is a quasi-judicial method of settlement of disputes. Here, the

parties cross a line between diplomatic methods of settling disputes and
adjudication. The contrast is sharpened by the fact that an arbitral award is a
binding decision. In choosing arbitration, the parties to a dispute invite another
entity to resolve it for them. But arbitration allows the parties to constitute and to
operate their own court. Thus, it has attracted States in disputes since they can
select individuals as arbitrators in whom they have confidence and thus can at
least influence the procedure that will be employed to resolve their conflict.
(Sarmiento, 2007)

What are the advantages and disadvantages of arbitration as a method of

settlement of disputes?
Advantages:
a) It is more conclusive than the other forms of non-judicial dispute settlement
because the decisions of the arbitral panels are binding upon the parties;
b) The disputing parties retain greater control in the arbitration process because

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 they appoint the arbitrators;
c) The parties may designate the procedures and the laws to be applied;
d) Arbitration is less formal and less contentious than adjudication; and
e) Both the arbitration proceedings and decisions can be kept confidential, a
great advantage in disputes regarding sensitive matters. (Malone, 106)
(Sarmiento, 2007)

Disadvantages:
a) If the parties do not specify procedures, arbitration may be a very
cumbersome and time-consuming process;
b) Arbitration panels do not have the authority of courts to conduct discovery or
subpoena witnesses; and
c) The parties themselves pay for the entire cost of the arbitration. (Ibid) (Ibid)

Is there an obligation to arbitrate?

There is no International Law requirement or obligation to arbitrate, unless the
parties to a dispute previously consented to submit to arbitration through an arbitral clause
or arbitration convention. (Ibid)

What is a compromise d 'árbitage?

It is an agreement expressing the consent of the parties to the dispute to submit to
arbitration and outlining the constitution of the arbitral panel, the rules of procedure, the
issues to be decided and the binding nature of the arbitral decision. (Malone, 107) (Ibid)

What are the three types of arbitral agreements?

a) An arbitration clause that is incorporated as part of a treaty, commonly found
in commercial treaties.
b) Treaties whose sole function is to establish methods for the arbitration of
disputes. Ex. The Hague Convention for the Pacific Settlement of Disputes
c) Ad-hoc arbitral agreements. Ex. The agreement for the settlement of claims
between the US and Iran (1981) (Bernas, 2009)

May arbitral decisions be challenged?

The four most commonly accepted bases of challenge are:
a) That the arbitral body exceeded its powers;
b) That there was corruption on the part of a member of the body;
c) That there was failure to state the reasons for the awards or a serious
departure from a fundamental rule of procedure;
d) That the undertaking to arbitrate or the compromise is a nullity. (Ibid)

May domestic courts refuse to give recognition to awards given by foreign arbitral
tribunals?
Yes, provided that the grounds for refusal are among those found in the UN
Convention on the Recognition and Enforcement of Foreign Arbitral Awards (The New
York Convention) adopted in June 10, 1958.(Bernas, 2009 and Sarmiento, 2007)

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7) Judicial Settlement – it is a decision by a court. In the UN system, the ICJ is an
integral part of the UN, and the court, with seat at The Hague (The Netherlands),
decides inter-states disputes. States must agree to refer to the Court for decision.
However there is reluctance of states to refer disputes to the Court. (Sarmiento,
2007)

Does being a party to the Statute of the ICJ mean acceptance of the jurisdiction of
the Court?
No. It simply means that the state may accept the jurisdiction of the court. The
Statute opens the court's doors to member states and only states may be parties in the
court. (Bernas, 2009) However, a non-member may become a party on conditions to be
determined in each case by the General Assembly upon the recommendation of the
Security Council. (ICJ Statute Art. 93.2)

What is the cardinal rule in international courts?

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

What are the similarities between arbitration and judicial settlement?

a) Nature of the proceedings;
b) Binding character of the decisions
c) The disputes submitted for adjudication are legal rather than political. (Cruz,
2000)

How do they differ?

The two methods differ in the following points:
a) The judicial tribunal is, generally, a pre-existing and permanent body whereas
the arbitral tribunal is an ad hoc body created and filled by the parties to the
dispute themselves.
b) Jurisdiction in judicial settlement is usually compulsory whereas submission
to arbitration is voluntary.
c) The law applied by the tribunal in judicial settlement is independent of the will
of the parties but may be limited by them in arbitration proceedings. (Ibid)

International Court of Justice

What is the ICJ?

It is the UN's principal judicial organ. It succeeded the Permanent Court of
International Court of Justice established by the League of Nations. It came into being in
1945 through the Statute of the Court. All members are ipso facto parties to the Statute
of the ICJ. (Ibid)

What is its composition?

ICJ is composed of fifteen members [Statute of the ICJ, Art.3(1)] who are elected

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by absolute majority vote in the General Assembly and the Security Council [Ibid, Art.4,
10(1)]. The judges must be of high moral character and possess the qualifications
required in their respective countries for appointment to their highest judicial offices or are
jurisconsults of recognized competence in international law.(Ibid, Art. 2). No two of them
may be nationals of the same state [Ibid, Art 3(1)], and in the event that more than one
national of the same state obtain the required majorities, only the eldest shall be
considered elected.[UN Charter, Art. 10(1)]. The election of the judges should assure the
representation in the Court of the main forms of civilization and the principal legal systems
of the world. (Ibid, Art. 9). (Cruz, 2000)

What is the term of the members of the Court?

They have a term of nine years and may be re-elected. The term of the original
members were staggered in such a way as to provide for the election of one-third of the
membership at three-year intervals.(UN Charter, Art. 13) No judge can be removed
unless, in the unanimous opinion of the other members, he has ceased to fulfill the
required conditions.[Ibid, Art. 18(1)] The Court shall elect its President and Vice-
President, who shall serve for three years and may be re-elected.[Ibid, Art. 21(1)]

How shall the Court hold its sessions?

It shall remain permanently in session, at the Hague or elsewhere, except during
the judicial vacations [Ibid, Arts 22(1), 23(1)], and may meet either en banc [Ibid, Art 25(1)]
or in chambers composed of three or more judges, to deal with particular categories of
cases such as those relating to labor, transit and communications [Ibid, Art 26(1)]. All
questions are decided by a majority of the judges present [Ibid, Art 55(1)], the quorum
being nine when the full Court is sitting [Ibid, Art. 25(3)].

What are the functions of the Court?

The functions of the Court are to decide contentious cases and to render advisory
opinions (UN Charter, Chapter II, IV). (Cruz, 2000).

What is the jurisdiction of the ICJ?

Its jurisdiction comprises all cases which the parties refer to it and all matters
specially provided for in the Charter of the UN or in treaties and conventions in force. [ICJ
Statute, Article 36(1)](Sarmiento, 2007)

Give two limitations on the jurisdiction of the ICJ under its Statute.
a) Only states may be parties in contentious cases before the Court (ICJ Statute,
Art. 34) and
b) The consent of the states is needed for the court to acquire jurisdiction (Ibid,
Art 36) (Ibid)

When is the Court competent to entertain a dispute between states?

Only if the states concerned have accepted its jurisdiction in one or more of the
following ways:
a) By the conclusion between them of a special agreement (Compromis) to
submit the dispute to the Court [ICJ Statute, Art 36(1)]

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 b) By virtue of a jurisdictional clause, i.e. typically, when they are parties to a
treaty containing a provision whereby in the event of a disagreement over its
interpretation or application, one of them may refer the dispute to the Court (Ibid)
c) Through the reciprocal effect of declarations made by them under the Statute
whereby each has accepted the jurisdiction the jurisdiction of the Court as
compulsory in the event of a dispute with another State having made a similar
declaration. [Ibid, Art. 36(2)]

In cases of doubt as to whether the Court has jurisdiction, it is the Court itself which
decides. (Sarmiento, 2007)

What is the “compulsory jurisdiction” of the Court under the “optional jurisdiction”
clause?
The optional system is operative only for states that “at any time declare that they
recognize as compulsory ipso facto and without special agreement, in relation to any
other state accepting the same obligation, the jurisdiction of the Court in all legal disputes
concerning: a) the interpretation of a treaty; b) any question of international law; the
existence of any fact which, if established, would constitute a breach of an international
obligation.” [ICJ Statute, Art. 36(2)] (Bernas, 2009)

The declaration in the optional system may be made unconditionally or on

condition of reciprocity on the part of several or certain states, or for a certain time. They
shall be deposited with the Secretary-General of the UN, who shall transmit copies thereof
to the parties to the Statute and to the Registrar of the Court. [Ibid, Arts 3, 4]
(Sarmiento, 2007)

What is the Doctrine of Prorogated or Extended Jurisdiction of the ICJ?

Under this doctrine, the manifestation of consent to jurisdiction of the Court may
be made even after a case is filed, but until such consent to jurisdiction is made, the case
cannot be entered in the General List (docket of the Court). (Ibid)

What then is Forum Prorogatum?

Otherwise known as the “prorogated” jurisdiction, it is the jurisdiction of the ICJ that
is based that is based upon the consent of the defendant State that is given after the
initiation of the proceedings. The procedure for prorogated jurisdiction is found in Article
38(5) of the ICJ Rules of Court which in essence mandates that unless and until the
defendant State gives its consent, the application though transmitted to that State, shall
not be entered in the General List, nor any action be taken in the proceedings. (Ibid)

What is the legal effect of decisions of the ICJ in contentious cases?

Each member of the UN undertakes to comply with the decision of the International
Court of Justice in any case to which it is a party. [UN Charter, Art 98(1)]

However, the decision of the Court has no binding force except between the parties
and in respect of those particular cases. (ICJ Statute, Art. 59) (Ibid)

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Is the ICJ bound by the Doctrine of Stare Decisis?
No. While Article 38 of the Statute of the ICJ provides that the Court shall apply
judicial decisions as subsidiary means for the determination of rules of law in deciding
such disputes as are submitted to it, the same, however, is subject to Article 59 which
states that “the decision of the Court has no binding force except between the parties and
in respect of that particular case.” Nonetheless, the Court does look to prior holdings as
being highly persuasive. (Ibid)

What is the remedy in case a party fails to comply with the judgment of the Court?
If any party to a case fails to perform the obligations incumbent upon it under a
judgment rendered by the Court, the other party may have recourse to the Security
Council, which may, if it deems necessary, make recommendations or decide upon
measures to be taken to give effect to the judgment. (UN Charter, Art 94) (Ibid)

Is it mandatory for UN members to submit their disputes or differences for

resolution of the ICJ?
No, nothing in the Charter shall prevent Members of the UN from entrusting the
solution of their differences to other tribunals by virtue of agreements already in existence
or which may be concluded in the future. (UN Charter, Art. 95) (Ibid)

What are the provisional measures of the ICJ?

Article 41 of the ICJ Statute provides that the Court shall have the power to
indicate, if it considers that circumstances so require, any provisional measures which
ought to be taken to preserve the respective rights of either party. Pending the final
decision, notice of the measures suggested shall forthwith be given to the parties and to
the Security Council.

Is intervention allowed before the ICJ?

Article 62 of the Statute provides that should a state consider that it has an interest
of a legal nature which may be affected by the decision in the case, it may submit a
request to the Court to be permitted to intervene. It shall be for the Court to decide upon
this request. While Article 63 mandates that whenever the construction of a convention
to which states other than those concerned in the case are parties is in question, the
Registrar shall notify all such states. Every states notified has the right to intervene in the
proceedings; but if it uses this right, the construction given by the judgment will be equally
binding upon it.

Is revision of the ICJ judgment allowed?

An application for revision of a judgment may be made only when it is based upon
the discovery of some fact of such a nature as to be a decisive factor, which fact was,
when the judgment was given, unknown to the Court and also to the party claiming
revision, always provided that such ignorance was not due to negligence. The
proceedings for revision shall be opened by a judgment of the Court expressly recording
the existence of the new fact, recognizing that it has such a character as to lay the case
open to revision, and declaring the application admissible on this ground. The Court may
require previous compliance with the terms of the judgment before it admits proceedings

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in revision. The application for revision must be made at latest within six months of the
discovery of the new fact. No application for revision may be made after the lapse of ten
years from the date of the judgment. (ICJ Statute, Article 61)

What are the other international courts?

1) The Court of Justice of the European Communities
It is also called the European Court of Justice which is the Supreme Court
of the European Union and has its seat in Luxembourg. Natural or legal person
may bring action before the Court if he is the addressee of an act of a Community
institution, or he is directly and individually concerned by a legal measure taken by
one of the Community institutions. In addition, a reference for a preliminary ruling
also gives citizens the possibility of access to the Court of Justice by means of
questions put by the national courts in the context of cases brought under national
law. The primary function of the Court of Justice is to examine the legality of
Community acts and to ensure, in particular by examining references for a
preliminary ruling, that Community law is interpreted and applied uniformly. It also
applies Community law and resolves disputes between Community institutions or
between those institutions and the Member States (or even between Member
States themselves).

2) The Benelux Court of Justice

It was established by Belgium, the Netherlands and Luxembourg and is
modeled after the European Court of Justice that began its activities in 1974. Its
main function is to promote the uniform interpretation of common legal rules for
which it has become competent. When a national judge feels that a rule of Benelux
law is unclear in the case at hand, the court in question has the possibility and
sometimes the obligation to refer to the Benelux Court of Justice for a preliminary
ruling. The question referred to for a preliminary ruling is the starting point for
proceedings before the Benelux Court, in which the views of the litigating parties,
the Ministers of Justice and the Benelux public prosecution authority can be
expressed. Finally, the Court delivers a binding judgment laying down the
interpretation of the rule of law.

3) The EFTA Court of Justice

It is the Court of the EFTA States parties to the European Economic Area
Agreement (EEA) which include Iceland, Liechtenstein and Norway. It has its seat
in Luxembourg since 1996. The principal jurisdiction of the Court is on matters
involving interpretation of the law of the EEA, disputes between the contracting
parties, and between the EFTA Surveillance Authority and the addressee of a
decision of the authority or a person directly and individually concerned by such a
decision. Natural or legal person may bring an action if he is the addressee of a
decision of the EFTA Surveillance Authority, or he is directly and individually
concerned by such a decision. A reference for an advisory opinion also gives
citizens the possibility of access to the EFTA Court by means of questions put by
national courts in the context of cases brought under national law.

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4) The European Court of Human Rights
Known as the “Strasbourg Court”, it was established in November 1998
pursuant to the entry into force of Protocol No. 11 to the European Convention for
the Protection of Human Rights (1950) establishing a single court sitting fulltime
and replacing the European Commission of Human Rights (1954) and the
European Court of Human Rights (1959). It has its seat in Strasbourg, France. Its
primary function is to ensure compliance by the High Contracting Parties with their
commitments arising from the European Convention for the Protection of Human
Rights. The Court hears and decides complaints of human rights violations
allegedly committed by States Parties, and brought to the Court either by other
States Parties or by individual subject to the jurisdiction of a State Party. Any
contracting state (inter-State application) or any individual claiming to be the victim
of a breach of the Convention (individual application) may make an application
directly to the Court alleging a violation by a Contracting State of a right guaranteed
by the Convention. An application may be made to the Court by any natural person,
non-governmental organization or group of individuals claiming to be the victim of
a violation by one of the Contracting Parties of a right guaranteed by the
Convention for the Protection of Human Rights or its protocols. The Court may
deal with the matter only after all domestic remedies have been exhausted and
within six months of the final national decision. The Court will declare an individual
application inadmissible if it is anonymous or substantially the same as a matter
that has already been examined by the Court, or has already been submitted to
another procedure of international investigation or settlement, or if the Court
considers it to be contrary to the provisions of the Convention or its protocols, or
clearly unfounded or abusive. (Sarmiento, 2007)

8. Action by Regional Organizations – this may be resorted to by the parties on their

own volition or taken by the body itself at its own instance if allowed by agreement of the
members. One of these regional organizations is the ASEAN.

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 CHAPTER 14

USE OF FORCE SHORT OF WAR

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

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is illegal – for whatever reason - the threat to use such force will likewise be illegal…”
(Ibid)
What are the two considered exceptions to the general prohibition of the use of
force in Art. 2, par. 4 of the UN Charter?
a) Article 51 where the Charter recognizes the inherent right of individual or
collective self-defense if an armed attack occurs;
b) Article 42, whereby the Security Council may take military enforcement
measures in conformity with Chapter VII of the Charter. (Sarmiento, 2007)
Does the general prohibition of the use of force preclude the right to self-defense?
Article 51 provides that the Charter shall not impair the inherent right of individual
or collective self-defense if an armed attack occurs against a Member of the UN, until the
Security Council has taken measures necessary to maintain international peace and
security.
Measures taken by Members in the exercise of this right of self-defense shall be
immediately reported to the Security Council and shall not in any way affect the authority
and responsibility of the Security Council under the present Charter to take at any time
such action as it deems necessary in order to maintain or restore international peace and
security. (Bernas, 2009)
What are the limitations to the exercise of the right to individual or collective self-
defense?
a) Whether self-defense be individual or collective, it can only be exercised in
response to an “armed attack” which shall include not merely action by regular
armed forces across an international border, but also the sending by a State of
armed bands on to the territory of another State, if such an operation, because of
its scale and effects, would have been classified as an armed attack had it been
carried out by regular armed forces;
b) Collective self-defense cannot also be exercised in the absence of a request by
the State which is a victim of the alleged attack, this being additional to the
requirement that the State in question should have declared itself to have been
attacked. (Ibid)
What are the requisites of self-defense under Article 51 of the UN Charter?
a) an armed attack occurred against a member of the UN;
b) It must be “confined to cases in which the necessity of that self-defense is
instant, overwhelming, and leaving no choice of means, and no moment for
deliberation”;
c) The measures taken “must be limited by that necessity and kept clearly within
it”;

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 d) The right of self-defense must give way to measures that may be taken by the
Security Council to maintain international peace and security. (Sarmiento, 2007)
What are the requirements of “necessity and proportionality” in self-defense?
They embody the requirements for a valid act of self-defense as formulated by US
Secretary of State Daniel Webster in his letter in the Caroline Incident. According to him,
self-defense was to “be confined to cases in which the necessity of that self-defense is
instant, overwhelming, and leaving no choice of means, and no moment for deliberation”
and that such actions justified by that necessity ”must be limited by that necessity and
kept clearly within it.”
These requirements apply whether a state is acting in self-defense against an
attack which has already occurred or acting in anticipatory self-defense. (Malone, 148)
These requirements were affirmed by the ICJ in its decision in Nicaragua vs. US,
June 27, 1986. (Ibid)
What is the right of collective self-defense?
If the state is entitled to use force in self-defense under Article 51, other states are
entitled to come to the defense of the attacked state in collective self-defense. This right
exists independently of the existence of a mutual defense treaty between the attacked
state and the other states which come to its defense. (Ibid)
May a state exercise the collective right of self-defense without an explicit request
for assistance from the state on whose behalf the right is to be exercised?
In Nicaragua v. US, the ICJ concluded that the US was not entitled to come to the
defense of El Salvador, Honduras, and Costa Rica because at that time it had not been
requested to do so. It held that the exercise of the right of collective self-defense
presupposes that an armed attack has occurred; and the victim state draws general
attention to its plight and finally, the victim state makes an express request to other states
to come to its help. (Ibid)
Is anticipatory self-defense allowed?
Opinion on the subject is divided. Those who claim the existence of the right say
that the phrase “if an armed attack occurs” is not exclusive which is reminiscent of the
view that protection of “vital interests” justifies the use of force.
In practical terms, however, states do not invoke the right because they are afraid that it
might be used against them too. (Ibid)
What are the other measures of redress short of war that are used by states?
a) Severance of diplomatic relations;
b) Non intercourse;
c) Retorsion;

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 d) Embargo;
e) Reprisals;
f) Display of force;
g) Pacific blockade;
h) Armed intervention without war;
i) International organizational sanctions. (Sarmiento, 2007)
Are these methods short of war allowed under International Law?
With the adoption of the UN Charter, all measures short of war that involves the
threat or use of force against the territorial jurisdiction or political independence of any
state or in any other manner inconsistent with the purposes of the UN are no longer
allowed. (UN Charter Art. 2[4])
All members of the UN shall settle their international disputes by peaceful means
in such a manner that international peace and security, and justice, are not endangered.
(Ibid, Art. 2[3])
However, this is without prejudice to the authority of the Security Council under
Chapter VII of the UN Charter to decide what measures are to be employed to give effect
to its decisions, and it may call upon the Members of the UN to apply such measures
which may include:
a) Complete or partial interruption of economic relations and of rail, sea, air,
postal, telegraphic, radio, and other means of communication;
b) The severance of diplomatic relations;
c) Demonstrations;
d) Blockade; and
e) Other operations by air, sea or land forces. (Ibid)
What is severance of diplomatic relations?
Before resorting to one or other of the various forms of coercion, it was common
for governments to break off diplomatic relations with the offending state by recalling their
public ministers resident at the foreign capital. However, this measure was not in itself a
form of forcible procedure, but rather to serve as a warning that the issue between the
two states had reached a point where the injured party regarded normal diplomatic
relations as no longer compatible with the conduct of the other state, and that sterner
measures might possibly follow. (Fenwick, 531 as cited in Sarmiento, 2007)

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Severance should be distinguished from suspension of diplomatic relations. Suspension
involves withdrawal of diplomatic representation but not of consular representation.
(Bernas, 2009)
What is non-intercourse?
It consists of suspension of all commercial intercourse with a state.
What is retorsion?
It is any action taken in “retaliation where the acts complained of do not constitute
a legal ground of offense but are rather in the nature of unfriendly acts but indirectly hurtful
to other states.” (Fenwick, 532 as cited in Cruz, 2000) The act of retaliation is also
unfriendly but not illegal and may be in kind or of a different nature than the act that
provoked it. Examples of retorsions are severance of diplomatic or consular relations,
suspension of commercial intercourse, boycott, stoppage of travel to the other state,
denunciation of treaties, imposition of higher tariffs and other trade barriers, currency
restrictions, denial of loans and withdrawal of privileges previously enjoyed, recognition
of a rival government, and adverse propaganda.(Ibid)
Other author describes it as any of the forms of counter-measures in response to
an unfriendly act. Forms of retorsion include shutting of ports to vessels of an unfriendly
state, revocation of tariff concessions not guaranteed by treaty, or a display of naval forces
near the waters of an unfriendly state. (Bernas, 2009)
Is retorsion valid under International Law?
As long as retorsion does not involve the threat or use of force, it is valid under
International law. (Sarmiento, 2007)
What are reprisals?
They are an act of self-help on the part of the injured state, responding after an
unsatisfied demand to an act contrary to international law on the part of the offending
state. They have the effect of suspending momentarily in the relations of the two states
the observance of this or that rule of international law. They are limited by the experience
of humanity and the rules of good faith, applicable in the relation of state with state.
They would be illegal if a previous act contrary to international law had not
furnished the reason for them. They aim to impose on the offending state reparation for
Arbitration, Portuguese-German Arbitral Tribunal, 1928 as cited in Cruz, 2000)
Justice Cruz enumerated the more common forms of reprisals as to include a)
display of force, as when the US Mediterranean Fleet proceeded to and deployed along
the coasts of Turkey in 1903 pending compliance with the demand for the return of an
American national kidnapped by a Turkish bandit; b) occupation of territory, as when
Italy seized the Greek island of Corfu in 1923 for the murder of certain Italian officers in
Greece; c) embargo or the detention by the state seeking redress of the vessels of the
offending state or its nationals, whether such vessels are found in the territory of the

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former or on the high seas, as illustrated by the action taken by Holland against Venezuela
in 1908; d) pacific blockade, by which the vessels of the offending state are prevented
from entering or leaving its ports by the ships of the state seeking redress, as was done
by the Great Powers against Greece in 1886 to dissuade it from going to war against
Turkey. (2000)
When is act of reprisal legitimate?
In the Naulilaa Arbitration Case (Portugal vs Germany), 2 RIAA 1011(1928), the
Versailles Swiss arbitral panel laid down three conditions for the legitimacy of reprisals:
a) There must have been an illegal action on the part of the other state;
b) They must be preceded by a request for redress of the wrong, for the
necessity of resorting to force cannot be established if the possibility of obtaining
redress by other means is not even explored;
c) The measures adopted must not be excessive, in the sense of being out of all
proportion to the vocation received. (Sarmiento, 2007)
In the present state of IL, may reprisals still be held legitimate?
Since the Kellog-Briand Pact of 1928 (Pact of Paris) all forms of reprisals which
may involve the use of force are no longer legal. Article 2 of the Pact states that “the
settlement or solution of all disputes or conflicts of whatever nature or of whatever origin
they may be shall never be sought except by pacific means.” This prohibition was
reaffirmed by the UN Charter, Art. 2 [3,4]. (Ibid)
What is embargo?
It is the prohibition of commerce and trade with the offending state. Laying an
embargo upon all vessels of the offending state that happen at the time to be in the ports
of the state seeking redress does not contemplate confiscation (which is considered an
act of war), except in the event that the redress for injuries suffered should be finally
refused. (Fenwick, 534 cited in Sarmiento, 2007)
This can consist of seizure of vessels even in the high seas. It might also be
pacific, as when a state keeps its own vessels for fear that it might find their way in foreign
territory. There can also be collective embargo, e.g. on import of drugs or of oil. (Bernas,
2009)
What is boycott? Does it constitute a violation of IL?
It is a concerted action undertaken by the citizens of one state to suspend trade
and business relations with the citizens of the offending state. So long as the boycott is a
purely voluntary act on the part of the citizens acting individually or in concert, it is a
measure that falls outside of the scope of IL. But if any element of governmental pressure
or even of governmental persuasion should enter into boycott, there would be ground for
protest by the foreign government. (Fenwick, 535 cited in Sarmiento, 2007)

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 It is a form of reprisal which consists of suspension of trade or business relations
with the nationals of an offending state. Some claim that this is a form of economic
aggression which should be prohibited by law. (Bernas, 2009)
What is blockade?
It is any effort to cut off all maritime commerce between an enemy state and the
rest of the world. The purpose was not only to prevent goods from reaching the enemy
but also to prevent the enemy from exporting to the outside world and thereby sustaining
its war economy. (Sarmiento, 2007)
What three things must be specified in a declaration of blockade?
Article 9 of the 1909 Declaration of London concerning Laws of Naval War
enumerates the things that a declaration of blockade must specify:
a) The date when the blockade begins;
b) The geographical limits of the coastline under blockade;
c) The period within which neutral vessels may come out. (Ibid)
Is blockade lawful in international law?
A blockade is lawful if made upon the order or authority of the UN Security Council
pursuant to Article 42 of the UN Charter, that is, as a measure to maintain or restore
international peace and security. Otherwise, if not authorized by the Security Council,
then it will fall under the UN Charter’s general prohibition against the use of force under
Article 2(4). (Ibid)
In the event that none of the above-discussed methods succeeds in settling the
dispute, or even if they are not employed, may the UN be asked or decide on its
own authority to take a hand in the settlement?
Yes, this task is addressed principally to the Security Council but may, when the
occasion requires, be taken over by the General Assembly under proper conditions.
(Cruz, 2000)
What disputes are within the Security Council’s jurisdiction?
a) All disputes affecting international peace and security (UN Charter Arts. 24,
34);
b) All disputes which, although coming under the “domestic jurisdiction clause,”
have been submitted to it by the parties for settlement (Ibid, Article 2) (Cruz,
2000)
How may such disputes be brought to the attention of the SC?
a) By the SC itself, on its own motion (Ibid, Art.39);

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 b) By the GA (Arts 10 & 11);
c) By the Secretary General (Art. 99);
d) By any member of the UN (Art. 35);
e) By any party to the dispute, provided that in the case of non-members of the
UN, they should accept in advance, for purposes of the dispute, the obligations of
pacific settlement under the Charter. (Arts. 35 & 37) (Cruz, 2000)
What are the steps under the UN Charter that shall be taken by the SC in settling
disputes brought to its attention?
a) When it deems necessary, call on the parties to settle the dispute by any peaceful
means in their own choice (Art 33);
b) In case the parties are unable to adjust their differences by themselves through the
peaceful methods suggested, it may recommend appropriate measures or methods of
adjustment, taking into consideration: a) any amicable measures already adopted by the
parties; and b) that legal disputes should as a rule be referred to the ICJ (Art. 36);
c) If the above measures prove unavailing, then it may recommend such actual terms of
settlement as it may consider appropriate (Art 36) which is in the nature of a compulsory
settlement of the dispute which the parties are under obligation to abide by in the interest
of international peace and security.
d) Finally, where the terms of settlement are rejected by any of the parties, it is empowered
to take more drastic steps which include:
1) Preventive action which consists of measures not involving the use of
armed force, such as complete or partial interruption of economic relations and of
rail, sea, air, postal, telegraphic, radio and other means of communication, and
severance of diplomatic relations (Art 41);
2) Enforcement action which may be taken if the above measures would
be or have proved inadequate or such action by air, sea or land forces as may
be necessary to maintain or restore international peace and security. It may
include demonstrations, blockades, and other operations by air, sea, or land
forces of members of the UN (Art 41). (Cruz, 2000)
What is the Military Staff Committee?
It consists of the chiefs of staff of the permanent members of the SC or their
representatives. It is supposed to advise and assist the SC on all questions relating to its
military requirements for the maintenance of international peace and security, the
employment and command of forces placed at its disposal, the regulation of armaments,
and possible disarmament. It shall also be responsible under the SC for the strategic
direction of any armed forces placed at the disposal of the said Council (Art 47). (Cruz,
2000)

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What is “Uniting for Peace Resolution”?
This provides that “if the Security Council, because of lack of unanimity of the
permanent members, fails to exercise its primary responsibility for the maintenance of
peace and security in any case where there appears to be threat to the peace, breach of
peace, or act of aggression, the General Assembly shall consider the matter immediately
with a view to making recommendations to the members for collective measures,
including in the case of breach of the peace or act of aggression, the use of armed forces
when necessary, to maintain or restore international peace and security.” (Ibid)
What if the GA is not in session at the time?
The GA may meet in emergency special session within 24 hours of the request
therefor either by any nine members of the SC or by a majority of the members of the UN.
Conformably to this resolution, the General Assembly on November 4, 1956,
provided for the establishment of an international “police force” under the UN command
to supervise the area involved in the Suez Canal crisis, in which two of the permanent
members of the SC were directly involved. (Cruz, 2000)
Distinguish enforcement action from peacekeeping forces?
Enforcement action involving deployment of troops differs from peacekeeping
forces in that enforcement action is imposed without the consent of the state against
which such action is directed, while peacekeeping forces are deployed with the consent
of the state concerned like the first United Nations Emergency Forces (UNEF 1) which
was deployed by the GA with the consent of Egypt in 1956 and the ONUC (Operation des
Nations Unies au Congo) which was deployed by the SC in 1960 with the consent of
Congolese government during the Congolese civil war. (Malone, 144-145 cited in
Sarmiento, 2007).
Is the preservation and maintenance of international peace and security the
“exclusive” responsibility of the SC?
No, the preservation and maintenance of international peace and security is the
“primary”, but not the “exclusive,” responsibility of the SC. (Certain Expenses Case)
The preservation and maintenance of international peace and security is the
obligation of all members of the UN and the responsibility of the Organization itself, which
must be discharged primarily through the SC and secondarily through the GA.
(Sarmiento, 2007)
Is protection of nationals abroad an aspect of the right to self-defense in Article
51?
Though the legitimacy of such intervention is not firmly established in international
law, the proponents believe that such position can be defended since population is an
essential element of statehood. Others argue that Article 2(4) does not prohibit it because
it does not compromise the “territorial integrity or political independence” of a state.

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Examples of forcible rescue of nationals are the raid of Entebee in Uganda and the US
intrusion into Stanleyville to rescue American students. (Bernas, 2009)
When is “humanitarian intervention” permissible?
a) If the SC determines that massive violations of human rights occurring within a
country constitute a threat to the peace; and
b) SC then calls for or authorizes an enforcement action to put an end to these
violations. (Ibid)
What is intervention in international law?
Justice Cruz includes intervention along with retorsions and reprisals in the hostile
methods of settling international disputes.
It is defined as an act by which a state interferes with the domestic or foreign affairs
of another state or states through the employment of force or threat of force. Such force
may be physical or, in the present state of world affairs, even political or economic.
Lacking such pressure, the involvement of a state in the affairs of another, even if
unsolicited, cannot be considered intervention.
Intervention is not sanctioned in international relations except only when it is
exercised as an act of self-defense or when it is decreed by the SC as a preventive or
enforcement action for the maintenance of international peace and security. Others add
as exception if intervention is agreed upon in a treaty. Intervention may also be allowed
when requested from sister states or from the UN by the parties to a dispute or by a state
beset by rebellion. (Cruz, 2000)

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 CHAPTER 15

INTERNATIONAL HUMANITARIAN LAW

What is International Humanitarian Law?

It used to be known as Laws of War which provides for instances when the use of
armed force is justifiable (jus ad bellum) and it regulates the conduct of armed conflict
(jus in bello). (Bernas, 2009)
It is a set of rules which seek, for humanitarian reasons, to limit the effects of armed
conflict. It protects persons who are not or are no longer participating in the hostilities
and restricts the means and methods of warfare. (ICRC Fact Sheet, What is International
Humanitarian Law cited in Sarmiento, 2007)
Did early international law consider war as unlawful?
No. Early international law did not consider as unlawful a war waged to gain
political or other advantages over another. In fact, war was in law a natural function of
the State and a prerogative of its uncontrolled sovereignty. (Hyde, 1922 cited in Bernas,
2009)
Prior to World War II, what were the early attempts to outlaw war?
Early attempts to outlaw war were found in Hague Convention II in 1907, Covenant
of the League of Nations (1919), and in the Kellog-Briand Pact for the Renunciation of
War (1928). (Ibid)
What law formulated after the Second World War was considered more effective on
preventing war?
The UN Charter which provides: “All Members shall refrain in their international
relations from the threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with the Purposes of the
United Nations.” Art 2(4) (Ibid)
How can the paradox, that despite the prohibition of armed conflict there is the
proliferation of laws of war, be explained?

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Three facts can explain the paradox:
1) Those who resort to the use of arms do not give up until they have achieved
victory;
2) Given the first fact, humanitarian consideration dictate the need for rules which
curtail violence beyond what is necessary to achieve a state’s goal; and
3) There still remains in the hearts of the soldiery an acceptance of chivalry as a
value (Ibid)
What were the provisions of the Hague Law?
The Conventions and Declaration in 1899 and the conferences held in 1907
produced principles that constitute that part of the law of armed conflict still known as the
Law of the Hague governing land and naval warfare. Principles governing the conduct of
air warfare were to follow later. (Ibid)
What do Geneva Conventions of 1949 provide?
There were four Geneva “Red Cross” Conventions which consist of the following:
1) I – Wounded and Sick in the Field;
2) II - Wounded, Sick and Shipwrecked at Sea;
3) III - Prisoners of War;
4) IV – Civilians
The essence of the Geneva conventions is that persons not actively engaged in
warfare should be treated humanely. The rules apply to any international armed conflict,
whether a declared war or not. (Ibid)
How are non-parties to these Conventions bound by them?
Since much of what is embodied in the Hague and Geneva Conventions are
customary law, non-parties to the Convention are covered by the customary law of armed
conflict. It has become common practice, when one of the parties to the conflict is not a
party to the conventions, for such party to make a declaration that it will abide by the
terms of the Convention. (Ibid)
What are the three statements of the ICRC which sum up the basic rules governing
armed conflicts?
1. Soldier’s Rules;
2. Fundamental Rules of International Humanitarian Law Applicable to Armed Conflicts;
and
3. Non-international Armed Conflicts

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How are the agreements or conventions on the laws of war enforced?
The commonly accepted sanctions are:
1) Protest lodged by one belligerent, usually accompanied or followed by an appeal
to world opinion against the unlawful acts of warfare committed by the other
belligerent;
2) Reparation for damages caused by the defeated belligerent; and
3) Punishment of war criminals (Cruz, 2000)
How does war commence?
War may start with a declaration of war (The Hague Conventions of 1907); with
the rejection of an ultimatum, or with the commission of an act of force regarded by at
least one of the belligerents as an act of war. (Cruz, 2000)
What are the effects of the outbreak of war?
1) The laws of peace cease to regulate the relations of the belligerents and are
superseded by the laws of war. Third states are governed by the laws of neutrality in their
dealings with the belligerents.
2) Diplomatic and consular relations between the belligerents are terminated and their
respective representatives are allowed to return to their own countries.
3) Treaties of political nature, such as treaties of alliance, are automatically cancelled, but
those which are precisely intended to operate during war, such as one regulating the
conduct of hostilities between the parties, are activated. Multipartite treaty dealing with
technical or administrative matters, like postal conventions, are deemed merely
suspended as between the belligerents.
4) Individuals are impressed with enemy character:
a) Under the nationality test, if they are nationals of the other belligerent,
wherever they may be;
b) Under the domiciliary test, if they are domiciled aliens in the territory of the
other belligerent, on the assumption that they contribute to its economic resources;
and
c) Under the activities test, if being foreigners, they nevertheless participate in
the hostilities in favor of the other belligerent.
Corporations and other juridical persons, on the other hand, are regarded as
enemies if a majority or a substantial portion of their capital stock is in the hands
of enemy nationals or if they have incorporated in the territory or under the laws of
the other belligerent.

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5) Enemy public property found in the territory of the other belligerent at the outbreak of
hostilities is, with certain exceptions, subject to confiscation. Enemy private property may
be sequestered, subject to return, reimbursement or other disposition after the war in
accordance with the treaty of peace. (Ibid)
Who are combatants?
The following are regarded as combatants:
1) The members of the armed forces, whether pertaining to the army, the navy or the air
force, except those not actively engaged in combat, such as chaplains and medical
personnel;
2) The irregular forces, such as the francs tireurs or the guerillas, provided, that:
a) They are commanded by a person responsible for his subordinates;
b) They wear a fixed distinctive sign recognizable at a distance;
c) They carry arms openly; and
d) They conduct their operations in accordance with the laws and customs of
war.

3) The inhabitants of unoccupied territory who, on approach of the enemy, spontaneously

take arms to resist the invading troops without having had time to organize themselves,
provided only that they carry arms openly and observe the laws and customs of war. This
is often referred to as levee en masse.
4) The officers and crew of merchant vessels who forcibly resist attack.
What are the rights accorded to combatants when captured?
1) Right to the proper respect commensurate with their rank;
2) Right to adequate food and clothing;
3) Right to safe and sanitary quarters;
4) Right to medical assistance;
5) Right to refuse to give military information or render military service against their
own state;
6) Right to communicate with their families.
Non-combatants or those who do not engage directly in hostilities do not enjoy
identical rights when captured but are protected from inhumane treatment under the
Geneva Convention of 1949 relative to the treatment of civilian persons in time of war.
What are the three basic principles underlying the rules of warfare?
1) Principle of Military Necessity

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 Under this principle, the belligerents may, subject to the other principles, employ
any amount and kind of force to compel the complete submission of the enemy with the
least possible loss of lives, time and money. Measures such as sieges, blockades,
bombardments, and devastation of property, which may involve direct hardships on the
non-combatants within the area affected, are undertaken under this principle.
2) Principle of Humanity
This principle prohibits the use of any measure that is not absolutely necessary for
the purposes of the war, such as the poisoning of wells and weapons, the employment of
dumdum or expanding bullets and asphyxiating gases, the destruction of works of art and
property devoted to religious or humanitarian purposes, the bombarding of undefended
places, and attack of hospital ships.
When an enemy vessel is sunk, the other belligerent must see to the safety of the
persons on board. Pillage (taking of goods by force in time of war) is prohibited. The
wounded and the sick must be humanely treated without distinction of nationality by the
belligerent in whose power they are. The rule that a combatant who surrenders may not
be killed and the agreements relating to the treatment of prisoners of war also fall under
this principle.
3) Principle of Chivalry
This principle is the basis of such rules as those that require the belligerents to
give proper warning before launching a bombardment or prohibit the use of perfidy
(treachery or faithlessness) in the conduct of hostilities.
False flags are not allowed in land warfare, but war vessels may sail under a flag
not their own, subject only to the requirement that they haul it down and hoist their own
flag before attacking the other belligerent. Espionage is also prohibited. (Ibid)
When can an individual be considered a spy?
An individual can only be considered a spy if, acting clandestinely or on false
pretenses, he obtains, or seeks to obtain, information in the zone of operations of a
belligerent, with the intention of communicating it to the hostile party. Spies are subject
to the municipal law of the other belligerent except that, as provided in the Hague
Conventions of 1907, “a spy taken in the act cannot be punished without previous trial”.
A spy who succeeds in rejoining his army and is later captured incurs no responsibility for
his previous acts of espionage and is entitled to be treated as a prisoner of war. (Articles
30 & 31 as cited in Cruz, 2000)
Is booty or personal property found in the battlefield subject to confiscation?
Yes, except only the personal belongings of the individual combatants which have
no military value such as jewelry.
Distinguish theatre of war from region of war?

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 The first is the place where the hostilities are actually conducted while the second
is the greater area where the belligerents may lawfully engage each other.
When is a territory deemed occupied by a belligerent?
It is deemed occupied when it is actually placed under the authority of the hostile
army, but this occupation is limited only to the area where such authority has been
established and can be effectively exercised. It is not necessary that every square foot
of the territory in question be actually occupied, as it doubtless suffices that the occupying
army can, within a reasonable time, send detachment of troops to make its authority felt
within the occupied district. (Hyde, Vol.2, 364 cited in Cruz, 2000)
What are the consequences of belligerent occupation?
1. It does not result in transfer or suspension of the sovereignty of the legitimate
government although it may at the moment unable to exercise it.
2. The belligerent occupant cannot perform such acts as declaring the independence of
the occupied territory or requiring its inhabitants to renounce their allegiance to the lawful
government.
3. The belligerent is required to restore and ensure public order and safety while
respecting, unless absolutely prevented, the laws in force in the country more particularly
with regard to family honor and rights, the lives of persons, private property, and religious
convictions and practice. (Hague Convention No. IV, 1907, Reg., Arts 53-56)
4. Whenever necessary, the belligerent occupant may promulgate new laws, non-political
as well as political, provided they do not contravene the generally accepted principles of
international law. Political laws are automatically abrogated upon the end of the
occupation but the non-political laws may continue even beyond the occupation unless
they are expressly repealed or modified by the legitimate government. (Hilado v. Dela
Costa, April 30, 1949)
5. The belligerent occupant is permitted to exact from the populace contributions over and
above the regular taxes for the needs of the army of occupation or for the administration
of the territory. (HC No. IV, 1907, Reg., Arts 49-51) It may also, for valuable consideration,
make requisitions of things or services for the needs of the occupying forces. (Ibid, Art.52)
6. The belligerent occupant is permitted to introduce military currency, provided the
purpose is not to debase the country’s economy. Thus, in Haw Pia v. China Banking
Corporation (80 Phil 604), the Supreme Court upheld the validity of the payments made
by the plaintiff in Japanese military notes to settle a loan extended to her in Philippine
currency before the outbreak of the Pacific war.
7. Private property cannot be confiscated, but those susceptible of military use may be
seized, subject to restoration or compensation when peace is made. (HC No. IV, Reg.,
Arts 53-56) The property of municipalities and of institutions dedicated to religion, charity
and education, and the arts and sciences, even when state-owned, shall be treated as
private property, and their destruction is expressly forbidden. (Ibid)

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8. The army of occupation can only take possession of cash, funds and realizable
securities which are strictly the property of the state, depots of arms, means of transport,
stores and supplies, and generally movable property of the state, belonging to the state
which may be used for military operations. (Ibid) All appliances, whether on land, at sea,
or in the air, adapted for the transmission of news, or for the transport of persons or things,
exclusive of cases governed by naval law, depots of arms and generally all kinds of
ammunition of war may be seized but must be restored and compensation fixed when
peace is made.(Ibid)
9. The occupying state shall be regarded only as administrator and usufructuary of public
buildings, real estate, forests, agricultural estates belonging to the hostile state and
situated in the occupied territory. (Ibid, Art 55)
This rule was applied in Banaag v. Singson Encarnacion (April 19, 1949), where a lease
of five years granted by Philippine Executive Commission in 1942 over certain municipal
fisheries was deemed automatically canceled upon the re-establishment of the
Commonwealth government. (Ibid)
What is the right of postliminy or postliminium?
It “is that in which persons or things taken by the enemy are restored to the former
state on coming actually into the power of the nation to which they belong”. (Vattel in
Leitensdorfer vs Webb, 1 N.M. 34, 44 cited in Cruz, 2000) In its broadened concept, the
jus postliminium also imports the reinstatement of the authority of the displaced
government once control of the enemy is lost over the territory affected.
Thus, upon the end of a belligerent occupation, the laws of the re-established
government are revived and all acts taken by the belligerent occupant which it could not
legally do under the law of nations, as well as lawful acts of a political complexion, are
invalidated.
What are the non-hostile intercourse?
1. A flag of truce is a white flag carried by an individual authorized by one belligerent to
enter into communications with the other. The bearer, or parlementaire, is entitled to
inviolability as long as he does not take advantage of his privileged position to commit an
act of treachery. But the other belligerent is not obliged to receive a flag of truce. (HC No.
IV, 1907, Reg., Arts. 32, 34; Fenwick, 578; Wilson and Tucker, 294 cited in Cruz, 2000)
2. Cartels are agreements to regulate intercourse during war on such matters as postal
and telegraphic communication, the reception of flags of truce, and the exchange of
prisoners. A cartel ship is a vessel sailing under a safe-conduct for the purpose of carrying
exchanged prisoners of war.(Fenwick, 575; Wilson and Tucker, 295 cited in Cruz, 2000)
3. A passport is a written permission given by the belligerent government or its authorized
agent to the subjects of the enemy state to travel generally in belligerent territory. (Wilson
and Tucker, 295 cited in Cruz, 2000)

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4. A safe-conduct is a pass given to an enemy subject or to an enemy vessel allowing
passage between defined points. This is given either by the belligerent government or by
the commander of the area within which it is effective. (Ibid)
5. A safeguard is a protection granted by a commanding office either to enemy persons
or property within his command. When it is enforced by a detail of men, they must use
extreme measures, if necessary to fulfill their trust, and are themselves exempt from
attack or capture by the enemy.
6. A license to trade is a permission given by the competent authority to individuals to
carry on trade even though there is a state of war. A general license grants to all the
subjects of the enemy state or to all its own subjects the right to trade in specified places
or in specified articles. A special license grants to a certain person the right to trade in
the manner specified in his license. (Ibid, 296)
Distinguish suspension of arms from armistice.
A suspension of arms is a temporary cessation of the hostilities by agreement of
the local commanders for such purposes as the gathering of the wounded and the burial
of the dead. (Fenwick, 579; Wilson and Tucker, 297)

Whereas, armistice is the suspension of all hostilities within a certain area (local)
or in the entire region of the war (general) agreed upon by the belligerent governments,
usually for the purpose of arranging the terms of the peace. The purpose of the armistice
is political while that of suspension of arms is military; armistice may be concluded only
by the commanders-in-chief of the belligerent governments while suspension of arms may
be agreed upon by the local commanders; and armistice is usually in writing while
suspension of arms may be oral. (Cruz, 2000)

What is a cease-fire?
A cease-fire is an unconditional stoppage of hostilities by order of an international
body like the UN Security Council for the purpose of employing peaceful means of settling
the differences between the belligerents. (Salonga and Yap, 451-452 cited in Cruz, 2000)
What is a truce?
A truce is sometimes used interchangeably with armistice but is now generally
regarded as a cease-fire with conditions attached. (Fenwick, 579 cited in Cruz, 2000)
What is a capitulation?
It is the surrender of military forces, places or districts in accordance with the rules
of military honor. (HC No. IV, 1907, Reg. Art. 35)
How may war be terminated?
War may be terminated by any of the following:
1) Simple Cessation of Hostilities

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 Among the wars that were terminated by simple cessation of hostilities are those
between Sweden and Poland in 1716, between France and Spain in 1720, between Spain
and its American colonies in 1825, and between France and Mexico in 1862-67. Under
this method, property or territory in the possession of the respective belligerents upon the
termination of the war is retained by them in accordance with the principle of uti
possidetis. This is to be distinguished from the usual stipulation for the status quo
ante, which calls for the complete restoration to their former owners of property or territory
that may have changed hands during the hostilities, with the exception only of prize and
booty.
2) Negotiated Treaty of Peace
At times, belligerents may be unable to effect a decisive victory against each other
and may decide finally to settle their disagreement in what is known as a negotiated treaty
of peace. One example was the case of Great Britain and the US when they terminated
the War of 1812 with the conclusion of the Treaty of Ghent.
3) Defeat of one of the Belligerents
The surrender of the defeated belligerent may either be conditional or
unconditional. In the former case, a treaty of peace is concluded embodying the condition
specified in the surrender; in the latter, the victorious belligerent usually issues a unilateral
declaration announcing the end of the war, to be followed with a peace treaty dictated by
it and specifying the rules on the settlement of the obligations of the vanquished state and
the disposition of its territories.
What are the consequences of war?
1) The implied judgment that the vanquished belligerent is the guilty party in the dispute
that caused the hostilities;
2) Nationals of the vanquished state may be protected and punished as war criminals and
for other violations of international law who may not escape responsibility on the ground
that they were merely acting on orders of their state; here the state itself is liable for
issuing such orders and the individuals for obeying them provided a moral choice was
possible
In Yamashita v. Styer (75 Phil 563), the Commander General of the Imperial
Japanese Forces in the Philippines was convicted of war atrocities by a military
commission and sentenced to death by hanging. He questioned his trial and conviction
on the ground that the military commission had no authority or jurisdiction to try him, but
the Philippine Supreme Court and the US Supreme Court affirmed the sentence. The
latter court declared that the acts directed against the civilian population of an occupied
country and against prisoners of war are recognized in international law as violations of
the law of war. (Cruz, 2000)
When is a state said to be neutral?

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 A state is neutral if it does not take part, directly or indirectly, in a war between
other states.
How does neutrality differ from neutralization?
Neutrality is dependent solely on the attitude of the neutral state, which is free to
join any of the belligerents anytime it sees fit, while neutralization is the result of a treaty
wherein the duration and the other conditions of the neutralization are agreed upon by
the neutralized state and other powers. This agreement governs the conduct of the
signatories whereas neutrality is governed by the general law of nations. Neutrality
obtains only during war while neutralization is intended to operate in time of peace as well
as in time of war. Only states may become neutral but portions of states, like islands,
rivers and canals, may be neutralized.
May there be neutrality among members of the UN?
Yes, a state can become a member of the UN and still maintain its neutrality. At
present, several neutral states, like Austria, Finland, Ireland, Sweden, and recently
Switzerland in 2002, are members of the UN. (Sarmiento, 2007)
What are the rights and duties of a neutral state?
A neutral state has the right and duty to abstain from taking part in the hostilities
and from giving assistance to either belligerent; to prevent its territory and other resources
from being used in the conduct of hostilities by the belligerents, and to acquiesce in certain
restrictions and limitations that the belligerents may find necessary to impose, especially
in connection with international commerce. (Schwarzenberger, 208, cited in Cruz, 2000)
What are the obligations of belligerents?
They are bound to respect the status of the neutral state, avoiding any act that will
directly involve it in their conflict, and to submit to any lawful measures it may take to
maintain or protect its neutrality.
Is the use of neutral territory completely barred to the belligerents?
No. The passage of sick and wounded troops is allowed through neutral state
provided personnel and materials of war are not also carried. (HC V 1907 Art. 12.)
Persons bound for enlistment in the belligerent armies may cross the neutral frontiers if
they do so individually or separately and not as a body. (HC V 1907 Art 6) The neutral
state itself may give refuge to troops from the belligerent forces but must intern them as
far as possible, at a distance from the theater of war. (HC V 1907 Art. 11) Escaped
prisoners of war need not be detained by the neutral state but must be assigned a place
of residence if they are allowed to remain. (HC V 1907 Art 13)
Is the neutral state obliged to prevent the export from or transit through its territory
of war supplies purchased from private traders by the belligerents in the ordinary
course of commerce?

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 No. But it is required to take reasonable diligence in preventing the delivery of
vessels constructed and armed in its territory for use by any of the belligerents. (in
Alabama Claims Case, Great Britain was found liable in damages to the US for violation
of this duty)
Is the neutrality of one state compromised when its nationals enlist in a belligerent
army or engage in commerce with any of the belligerents?
No. The neutrality of the state is not compromised in the absence of special rules
imposing upon the neutral state the duty of intervening in the transaction. Except for
these, international law considers the relationship as strictly between the individual and
the belligerent states and whatever hardships may be suffered by its nationals as a result
thereof must, as a rule, be acquiesced in by the neutral state.
What is contraband?
It refers to goods which, although neutral property may be seized by a belligerent
because they are useful for war and are bound for a hostile destination. Absolute
contraband are necessarily useful for war under all circumstances, like rifles and
ammunition (Declaration of London, Articles 22, 24), whereas conditional contraband,
like food and clothes, have both civilian and military purposes. “Free list” includes goods
useful for war and bound for the belligerents but exempted from the law on contraband
for humanitarian reasons like medicines and medical supplies for the use of the sick and
the wounded.
Absolute contraband are subject to seizure so long as they are bound for enemy
or enemy-held territory, (Ibid, Art 29) but conditional contraband may be seized only when
it can be shown that they are destined for the armed forces or the authorities of the
belligerent government. (Ibid, Art. 33)
What is the doctrine of ultimate consumption?
Under this doctrine, goods intended for civilian use which may ultimately find their
way to and be consumed by the belligerent forces are also liable to seizure on the way.
(Cruz, 2000)
What is the doctrine of infection?
Under this doctrine, if innocent goods belonging to the same owner are shipped
together with contraband which are subject to condemnation, innocent goods may also
be confiscated. (Declaration of London, Art. 42)
Is the vessel carrying the contraband subject also to confiscation?
Only if the contraband are more than one-half of the total cargo by weight, value,
freight or volume (Ibid, Art 40)
What is the doctrine of ultimate destination?

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 Under this doctrine, the liability of contraband to capture is determined not by their
ostensible but by their real destination. (Cruz, 2000)
This doctrine is called the doctrine of continuous voyage when the goods are
reloaded at the intermediate port on the same vessel and the doctrine of continuous
transport when they are reloaded on another vessel or other form of transportation. (Ibid)
What is unneutral service?
It consists of acts, of a more hostile character than carriage of contraband or
breach of blockade, which are undertaken by merchant vessels of a neutral state in aid
of any of the belligerents. (Ibid)
When is a neutral vessel liable to condemnation for unneutral service?
a) if it is making a voyage special with a view to the transport of individual
passengers who are embodied in the armed forces of the enemy or with a view to
the transmission of information in the interest of the enemy; or
b) if with the knowledge of the owner, or the one who charters the entire vessel, or
of the master, it is transporting a military detachment of the enemy or one or more
persons who, during the voyage, lend direct assistance to the operations of the
enemy. The cargo, if belonging to the owner of the vessels, is likewise confiscable.
(Declaration of London, Art. 45)
When is a neutral vessel liable to condemnation and to be treated as a merchant
vessel of the enemy?
a) If it takes a direct part in the hostilities;
b) If it is under the orders or control of an agent placed on board by the enemy
government;
c) If it is chartered entirely by the enemy government; or
d) If it is at the time and exclusively either devoted to the transport of enemy
troops or the transmission of information in the interest of the enemy. The goods
belonging to the owner of the vessel are likewise liable to condemnation. (Ibid,
Art 46)
What is angary?
By the right of angary, a belligerent may, upon payment of just compensation,
seize, use or destroy, in case of urgent necessity for purposes of offenses or defense,
neutral property found in its territory, in enemy territory, or on the high seas. (Oppenheim-
Lauterpacht, Vol 2, 28 cited in Cruz, 2000)
Thus, the exercise of this right is conditioned upon three requisites:
a) That the property is in the territory under the control or jurisdiction of the
belligerent;

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 b) That there is urgent necessity for the taking; and
c) That just compensation is paid to the owner. (Cruz, 2000)
What is a prize court? What are its duties and jurisdiction?
Prize courts are domestic tribunals of a belligerent state that determined the
legality of the capture by a belligerent enemy or neutral merchant vessels and of their
liability to confiscation.
Although the authority and the jurisdiction of prize courts were derived from
national law, the rules which they applied were the rules of International Law, except in
so far as special national legislation might have prescribed a particular interpretation of
these rules. (Fenwick, 644 cited in Sarmiento, 2007)
How is neutrality terminated?
1) When the neutral state itself joins the war;
2) Upon the conclusion of peace (Cruz, 2000)
Do civil wars or rebellion violate international law?
No, Article 2(4) of the UN Charter does not apply to internal conflicts. (Bernas,
2009)
Is outside help for governments experiencing rebellion legitimate?
Generally, yes, provided requested by the government. However, aid to rebels is
contrary to international law.
What international law on armed conflict is applicable to internal conflicts?
Common Article 3 of each of the four Geneva Conventions provides for minimum
humanitarian protection in cases of internal conflict.
What is Protocol II?
It is the first and only international agreement exclusively regulating the conduct of
parties in a non-international armed conflict promulgated in 1977. It “develops and
supplements Article 3 common to the Geneva Conventions of 12 August 1949 without
modifying its existing conditions or application.” A definition of a non-international armed
conflict covered by this expanded guarantee is found in Article 1. It states:
A non-international armed conflict are armed conflicts which take place in the
territory of a High Contracting Party between its armed forces and dissident armed forces
or other organized armed groups which, under responsible command, exercise such
control over a part of its territory as to enable them to carry out sustained and concerted
military operations and to implement this Protocol. (Bernas, 2009)
Is Protocol II applicable to situations of internal disturbances and tensions?

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 No, Protocol II shall not apply to situations of internal disturbances and tensions,
such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as
not being armed conflicts. (Art 1 of the Protocol II) This is true even if the armed forces
of the territory may have been called upon to suppress the disorder. (Ibid)
May terrorist attacks be the subject of an enforcement action by the UN Security
Council?
Yes, terrorist attacks may be considered as threats to international peace and
security which would justify the calling of enforcement actions under Chapter VII of the
UN Charter. (Sarmiento, 2007)
Are terrorist acts subject to IHL?
No. Banditry, unorganized and short-lived insurrections, and terrorist activities are
not subject to IHL. (Ibid)

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 CHAPTER 15

INTERNATIONAL ENVIRONMENTAL LAW

How does the Philippine Constitution express the concern about the environment?
Article II, Section 16 provides that, “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.”
The discussions in the 1986 Constitutional Commission manifested a clear desire
to make environmental protection and ecological balance conscious objects of police
power. (4 Record of the Constitutional Commission 912-916 cited in Bernas, 2009)
What are the foremost environmental cases decided by the Supreme Court
upholding the constitutional provisions on environmental concerns?
1. Oposa v. Factoran 224 SCRA 792 (1993)
2. LLDA v. CA 231 SCRA 292 (1994)
3. Social Justice Society v. Atienza February 13, 2008
4. MMDA v. Residents of Manila Bay December 18, 2008
Why is the protection of the environment considered a challenge to the
development of international law?
The protection of the environment is considered a challenge to the development
of international law because its demands cannot be met without intrusion into the
domestic jurisdiction and sovereignty of states. The nature and magnitude of the
challenge are such that they require not only the joint action of states but also the
involvement of non-state actors. (Bernas, 2009)
What consist concern of environmental protection?
The concern of environmental protection is not just about the atmosphere, the sea,
the land, flora and fauna. It is also about the preservation of the cultural heritage of
mankind as found in archeological and artistic remains. (Ibid)

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What is the goal of environmental protectionists?
Their goal is the rational use of the elements that make up the environment through
control, reduction and, wherever possible, elimination of the causes of environmental
degradation. (Ibid)
Are environmental concerns related to human rights issues?
Yes, they are inseparably related. In the Danube Dam Case, the ICJ held that,
“The protection of the environment is a …vital part of contemporary human rights doctrine,
for it is a sine qua non for numerous human rights such as the right to health, and the
right to life itself.” (ICJ Rep 1997 cited in Bernas, 2009)
Who have environmental rights?
The real object of protection in protecting the environment is persons capable of
having rights. (Ibid)
What is sustainable development?
It is an important concept in the field both of economics and environmental rights.
The concept of sustainable development encourages development in a manner and
according to methods which do not compromise the ability of future generation and other
states to meet their needs. (Ibid)
What is long-range transboundary air pollution?
It means air pollution whose physical origin is situated wholly or in part within the
area under the national jurisdiction of one State and which has adverse effects in the area
under the jurisdiction of another State at such a distance that it is not generally possible
to distinguish the contribution of individual emission sources or groups of sources. (1979
Convention on Long-Range Transboundary Air Pollution, Art. 1[b] cited in Sarmiento,
2007)
What is the Good Neighborliness principle?
This principle prohibits States from using or permitting the use of its territory in a
manner that is injurious to another State, or that other State’s persons or property. This
principle is now codified in Principle 21 of the Stockholm Declaration and in principle 2 of
the Rio Declaration (Earth Summit). (Sarmiento, 2007)
What Roman law principle underlies the Good Neighborliness Principle?
Sic utere tuo ut alienum non laedas. So use your own as not to injure the rights of
others. (Ibid)
What are the possible bases of liability for transboundary pollution under
International Law?
There are several theories of liability for transboundary pollution:

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 a) An absolute duty to protect against harm from ultra-hazardous activities,
which if violated, results in a state being held strictly liable;
b) “Abuse of Rights” Theory: responsibility for negligent or intentional acts;
c) “Good Neighborliness” Principle: liability for a State which permits
transboundary pollution to exceed that which neighbors can reasonably be
expected to endure. (Malone, 217 cited in Sarmiento, 2007)
What are the major instruments that have shaped the modern development of
international environmental law?
a) The Stockholm Declaration on the Human Environment which was adopted at the 1972
UN Convention on the Human Environment, held in Stockholm, Sweden;
b) The Rio Declaration on Environment and Development, which was adopted at the 1992
Rio Conference on Environment and Development, also known as the “Earth Summit” –
it reaffirms the Stockholm Declaration with the goal of establishing a new and equitable
global partnership through the creation of new levels of cooperation among States, key
sectors of societies and people. (Ibid)
What are the important principles contained in the Stockholm Declaration on the
Human Environment?
a) Principle 1: Man has the fundamental right to freedom, equality and adequate
conditions of life, in an environment of a quality that permits a life of dignity and well-
being, and he bears a solemn responsibility to protect and improve the environment for
present and future generations.
b) Principle 21 (Principle of Good Neighborliness) States have the sovereign right to
exploit their own resources pursuant to their own environmental policies, and the
responsibility to ensure that activities within their jurisdiction or control do not cause
damage to the environment of other states or of areas beyond the limits of national
jurisdiction.
c) Principle 22: States shall cooperate to develop further the International Law regarding
liability and compensation for the victims of pollution and other environmental damage
caused by activities within the jurisdiction or control of such states to areas beyond their
jurisdiction. (Ibid)
What are some of the important principles contained in the 1982 Rio Declaration
(Earth Summit)?
a) Principle 2: States have the sovereign right to exploit their own resources pursuant to
their own environmental and developmental policies, and the responsibility to ensure that
activities within their jurisdiction or control do not cause damage to the environment of
other States or of areas beyond the limits of national jurisdiction.
b) Principle 3: The right to development must be fulfilled so as to equitably meet
developmental and environmental needs of present and future generations.

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c) Principle 13: States shall develop national law regarding liability and compensation
for the victims of pollution and other environmental damage.
d) Principle 18: States shall immediately notify other States of any natural disasters or
other emergencies that are likely to produce sudden harmful effects on the environment
of those States. Every effort shall be made by the international community to help States
so afflicted.
e) Principle 24: warfare is inherently destructive of sustainable development. States shall
therefore respect International Law providing protection for the environment in times of
armed conflict and cooperate in its further development, as necessary.
f) Principle 26: States shall resolve all their environmental disputes peacefully and by
appropriate means in accordance with the Charter of the UN. (Ibid)
What is the Principle of Common but Differentiated Responsibility?
This principle is embodied in Principle 7 of the Rio Declaration which states:
“States shall cooperate in a spirit of global partnership to conserve, protect and
restore the health and integrity of the earth’s ecosystem. In view of the different
contributions to global environmental degradation, States have common but differentiated
responsibilities. The developed countries acknowledge the responsibility that they bear
in the international pursuit to sustainable development in view of the pressures their
societies place on the global environment and of the technologies and financial resources
they command.” (Ibid)
What is the Precautionary Approach?
This approach is contained in Principle 15 of the Rio Declaration, which states:
“In order to protect the environment, the precautionary approach shall be widely
applied by States according to their capabilities. Where there are threats of serious or
irreversible damage, lack of full scientific certainty shall not be used as a reason for
postponing cost-effective measures to prevent environmental degradation.” (Ibid)
May a State be held responsible by another State for transboundary pollution
caused by private parties within its jurisdiction?
Yes. The Trail Smelter Case (US v. Canada, 1941) established the two
fundamental principles of liability for transboundary pollution under International Law:
a) First, a state must show material damage and causation to be entitled to legal
relief; and
b) Second, a state has a duty to prevent, and may be held responsible for pollution
by private parties within its jurisdiction if such pollution results in demonstrable
injury to another state.

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 In the said case, the Arbitration Tribunal held that Canada was legally responsible
for the actions of the privately-owned smelter near Trail, Canada, ordered Canada to pay
damages, and required the smelter to refrain from causing further damage in the US.
(Ibid)
May a downstream state object to the use of the water by an upstream state?
A downstream state may not oppose the upstream state’s use of the water
provided the upstream state will not alter the waters of a river or lake. (Lake Lanoux
Arbitration, France vs Spain cited in Sarmiento, 2007)

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 CHAPTER 17

INTERNATIONAL ECONOMIC LAW

What is international economic law?

“The law of international economic relations in its broadest sense includes all the
international law and international agreements governing economic transactions that
cross state boundaries or that otherwise have implications for more than one state, such
as those involving the movement of goods, funds, persons, intangibles, technology,
vessels or aircraft.”(The 3rd Restatement of Foreign Relations Law cited in Bernas, 2009)
What are the four characteristics of IEL?
1. IEL is part of international law as treaties make this so.
2. IEL is intertwined with municipal law since the balancing of economic treaty law
with municipal law is important.
3. IEL requires multi-disciplinary thinking involving not only economics but also
political science, history, anthropology, geography, and other disciplines.
4. Empirical research is very important for understanding its operation. (Ibid)
What were the two main objectives of the Bretton Woods Conference of 1944?
1. To advance the reduction of tariffs and other trade barriers; and
2. To create a global framework designed to minimize economic conflicts (Ibid)
What were the economic institutions established out of the mentioned conference?
1. International Monetary Fund
Its function was to provide short-term financing to countries in balance of payments
difficulties.
2. International Bank for Reconstruction and Development (World Bank)
It was designed to provide long-term capital to support growth and development.

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3. International Trade Organization (ITO)
It was intended to promote a liberal trading system by proscribing certain
protectionist trade rules.
The intended function of the ITO was eventually taken over by the General
Agreement on Tariff and Trade (GATT) and its successor the World Trade Organization.
(Ibid)
What are the most important trade oriented institutions?
The GATT and the WTO are the most important trade oriented institutions. They
shape domestic import and export laws which impact on international trade on goods and
services.
GATT went through a series of modifications Rounds with the Uruguay Round of
1994 as the final one. The final agreement proposed the establishment of a World Trade
Organization which would oversee the operation of GATT and a new General Agreement
on Trade and Services. (Ibid)
What are the key principles of international trade law?
1. Agreed tariff levels
The GATT contains specified tariff levels for each state and each state agrees not
to raise tariff levels above those contained in the schedule though these can be
renegotiated.
2. The Most Favored Nation principle (MFN)
This clause embodies the principle of non-discrimination. This means that any
special treatment given to a product from one trading partner must be made available for
like products originating from one trading partner must be made available for like products
originating from or destined for other contracting partners. In practice, this generally refers
to tariff concessions.
3. Principle of National Treatment
This prohibits discrimination between domestic producers and foreign producers.
In practice, this means that once foreign producers have paid the proper border charges,
no additional burdens may be imposed on foreign products.
4. Principle of Tariffication
The principle prohibits the use of quotas on imports or exports and the use of
licenses on importation or exportation. The purpose of the principle is to prevent the
imposition of non-tariff barriers. But GATT provides for exceptions on a quantitative and
temporary basis for balance of payments or infant industry reasons in favor of developing
states. (Ibid)
What are the exceptions to key principles?

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1. Exceptions which are general in nature such as those referring to public morals, public
health, currency protection, products of prison labor, national treasures of historic, artistic
or archeological value, and protection of exhaustible natural resources;
2. Security exceptions and regional trade exceptions; and
3. Exceptions for developing nations. (Ibid)
How does WTO provide for dispute resolution?
A Dispute Settlement Body (DSB) has been established by the WTO Agreement
which consists of the General Council of the WTO and operates under the Understanding
on Rules and Procedures Governing the Settlement of Disputes 1994 (DSU). Each state
has a right to the establishment of a Panel. The DSU has also provided for a permanent
Appellate Body, consisting of persons with recognized expertise in law, to handle appeals
from a Panel decision. (Ibid)
What consist the expanded scope of the multilateral trade regime of the Uruguay
Round of 1994?
It now includes intellectual property, services, sanitary and physiosanitary
measures and investment, as well as the strengthening of the rules on subsidies,
countervailing duties and antidumping.
Thus, IEL has become a very specialized field and it is affecting the sovereignty of
states and their capacity to give force to national policy objectives. (Ibid)

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 SUPPLEMENTAL NOTES

RIGHTS OF REFUGEES

What does the term “refugee” mean?

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

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 g) Public relief and assistance; (Art 23)
h) Labor legislation and social security benefits. (Art 24)

Moreover, the contracting states shall accord to refugees’ treatment as favorable

as possible and, in any event, not less favorable than that accorded to aliens generally in
the same circumstances, as regards:
a) The acquisition of movable and immovable property and other rights pertaining
thereto; (Art 13)
b) Participation in non-political and non-profit making associations and trade
unions; (Art 15)
c) The right to engage in wage-earning employment; (Art 17)
d) The right to engage on his own account in agriculture, industry, handicrafts
and commerce and to establish commercial and industrial companies; (Art 18)
e) The practice of a liberal profession; (Art 19)
f) Right to choose their place of residence and to move freely within its territory.
(Art 26)

Furthermore, the contracting states shall issue identity papers and travel
documents to any refugee in their territory who does not possess a valid travel document.
(Arts 27, 28) (Ibid)
May a state party to the 1951 Refugee Convention expel a refugee from its territory?
As a state party to the 1951 Refugee Convention, it shall not expel a refugee in
their territory save on grounds of national security or public order. In any event, the
expulsion of such a refugee shall be only in pursuance of a decision reached in
accordance with due process of law.
Except where compelling reasons of national security otherwise require, the
refugee shall be allowed to submit evidence to clear himself, and to appeal to and be
represented for the purpose before competent authority or a person or persons specially
designated by the competent authority.
The state party shall also allow such a refugee a reasonable period within which
to seek legal admission into another country. (Art 32) (Ibid)
Is there a right of asylum under International Law?
Articles 13 and 14 of the Universal Declaration of Human Rights and the General
Assembly’s 1967 Declaration on Territorial Asylum recognize the “right to leave any
country, including one’s own” and the “right to seek and to enjoy in other country’s asylum
from persecution.” Those rights however are not coupled with a corresponding state
obligation to grant asylum.
Thus, all states have the right to grant asylum, but the individual has no right to
demand asylum. (Malone, 127 cited in Sarmiento, 2007)

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What is diplomatic asylum?
It is the granting of refuge by a state in its embassies, ships or aircraft in the territory
of another state. Once diplomatic asylum is granted, there is a right of safe conduct from
the foreign state. Beyond that, the rules of asylum are generally based on treaty rather
than on Customary International Law. (Malone, 128 cited in Sarmiento, 2007)
What is the Principle of Non-refoulement?
No contracting state shall expel or return a refugee in any manner whatsoever to
the frontiers of territories where his life or freedom would be threatened on account of his
race, religion, nationality, membership of a particular social group or political opinion.
However, this would not apply where there are reasonable grounds for regarding
the refugee as a danger to the security of the country in which he is, or who, having been
convicted by a final judgment of a particular serious crime, constitutes a danger to the
community of that country. (Refugee Convention, Art.33 cited in Sarmiento, 2007)

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