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183617213 Public International Law Reviewer

Accounting what does number means (Macau University of Science and Technology)

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International Law 1

OUTLINE

I. General Principles
 Definition of International Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
 Constitutional provisions related to Int‘l Law. . . . . . . . . . . . . . . . . . . . . . 3
 Basis of International Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
 Sources of International Law. . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . 4
 The United Nations Charter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . … . 5
 International Court of Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
 International Criminal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 10

II. Subject of International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 13

III. States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

IV. Recognition
 Rights of a state
 Right of existence and self-defense . . . . . . . . . . . . . . . . . . . . . .. 15
 Right of sovereignty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
 Right to equality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
 Right to property and territory . . . . . . . . . . . . . . . . . . . . . . . . . 17
 Right to legation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
- Diplomats . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
- Consuls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
- Asylum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 25
- Extradition . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . 26
V. Treaties
 Interpretation of treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 27

VI. Nationality, Treatment of Aliens, Statelessness . . . . . . . . . . . . . . . . . . . .. 29

VII. International Postlominium

 War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

VIII. Pacific Settlement of Disputes

 Peaceful methods . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
 Hostile Methods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 35

IX. Neutrality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

1 The contents of this note were lifted from Justice Isagani Cruz’s book [International law]; some are transcribed
lectures of Atty. Eduardo Rillorta (SLU-Baguio) in International Law.

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Disclaimer: This note was the result of pooled present at hand legal resources; hence for omitted topics, it is incumbent upon you to supply the same.

THESE PRINCIPLES PERMEATE THE BULK OF themselves or with persons

INTERNATIONAL LAW: their own states
5. Questions of public
1. Par in parem non habet imperium international law are
o Means: an equal cannot have dominion over 4. violations of resolved through
an equal. municipal law are state-to-state
redressed through transactions ranging
o In international law, all states are treated as local from peaceful
equals, regardless of population, size of administrative and methods like
territory, and economic status. judicial processes negotiations and
arbitration to the
2. Pacta sunt servanda hostile arbitrament of
o Pacts are to be complied with in good faith. force like war
4. Responsibility for
o Once a state had entered into a pact with infractions of
other states, both must comply with the pact 6. breaches of
international law is
in good faith. Breach of such pact may cause municipal law
usually collective in
hostile relation between both states. It can generally entail
the sense that it
also be a ground for a sanction under the only individual
attaches directly to
United Nation‘s Charter. responsibility
the state and not to
its nationals

PART ONE: DEFINITION OF INT‟L LAW Can international law be made part of
municipal/domestic law? Yes pursuant to the
Public International Law following doctrines:
o Is the body of legal rules, which apply to
sovereign states and such other entities that A. Doctrine of Incorporation
have been granted international personality. o By mere constitutional declaration,
international law is deemed to have the
o Continuing process of authoritative decisions force of municipal or domestic law.
which include policy considerations forming an
integral part of the decision making process. o Applicable to customary rules accepted as
[Jocelyn Higgins] binding to all states-has the character of
opinion juris sive necessitates (opinion as to
Private International Law contra Public law or necessity).
International Law
Private International Public International Art. II, Sec. 2 1987 Phil. Const‟n: The
Law Law Philippines renounces war as an instrument of
1. issued by a national policy, adopts the generally accepted
1. Is not imposed upon
political superior principles of international law as part of the law
but simply adopted by
for observance by of the land and adheres to the policy of peace,
states as a common
those under its equality, justice, freedom, cooperation, and
rule of action among
authority amity with all nations. (JEF, PACo)
themselves.
2. Is derived not from B. Doctrine of Transformation
any particular o The generally accepted rules of international
2. consists mainly of
legislation but from law are not per se binding upon the state
enactments from
such sources as but must first be embodied in the legislation
the lawmaking
international customs, enacted by the lawmaking body and so
authority of each
international transformed into municipal law. Only when
state
conventions and the so transformed will they become binding
general principles of upon the state as part of its municipal law.
law
3. regulates the 3. Applies to the relations Art. VII, Sec. 21 of Phil. Const‟n: No treaty
relations of inter se of states and or international agreement shall be valid and
individuals among other international effective unless concurred in by at least two-
thirds of all members of the senate.
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Corollary to the two doctrines is the 2. Art. I- The National territory of the
Principle of Pacta sunt servanda - In Philippines
International law, treaties and executive o The delineation of the Philippine territory
agreements are equally binding commitments of was based on the Treaty of Paris where
the contracting states under the maxim pacta Spain had sold the Philippines to the US
sunt servanda. Every state has the duty to carry for the consideration of $20,000.
out in good faith its obligations arising from
treaties or other sources of international law, o It was also based on the UN Convention
and it may not invoke provisions in its on the Law of the Seas (UNCLOS). Thus it
constitution or its laws as an excuse for failure adopts the ARCHIPELAGIC DOCTRINE.
to perform this duty.
Take Note!
CONSTIUTIONAL PROVISIONS RELATED TO A. The meaning of the word “internal
INTERNATIONAL LAW waters” as used in the Philippine
1. Art. II, Sec. 2- “The Philippines Constitution is different from that of
renounces war as an instrument of the UNCLOS.
national policy, adopts the generally
accepted principles of international law as UNCLOS- internal waters means those
part of the law of the land and adheres to waters from the baseline (seashore)
the policy of peace, equality, justice, landwards.
freedom, cooperation, and amity with all
nations.” PHIL. CONST‟N- Internal waters
include those waters between two
Applied in Kuroda versus Jalandoni (83 P islands.
171).
B. No international law that requires a
FACTS: Kuroda was a Japanese general state to delineate its territory. Thus,
stationed in the Philippines. He was being even if a state delineates its territory it
prosecuted for committing atrocities during cannot enforce it to other states.
World War II pursuant to the Geneva
Convention. He interposed the defense that he EXCEPT, when such delineated
cannot be tried because there is no Philippine territory is recognized by other states
law punishing war crimes and the Philippines or such delineation was made in
was not a signatory to the said convention. pursuance of a treaty with other states.

ISSUE: WON Kuruda can be tried in the REASON: The one creating the
Philippines. territory is a municipal law which is not
binding to international law.
HELD: Yes, pursuant to the doctrine of
incorporation. It cannot be denied that the rules 3. Art. VII, Sec. 21- “No treaty or
and regulations of The Hague and Geneva international agreement shall be valid and
Conventions form part of Philippine law since it effective unless concurred in by at least
is wholly based on the generally accepted two-thirds of all members of the senate.”
principles of international law. In fact these rules
and principles were accepted by the two Tanada vs. Angara
belligerent nations, the United States and Japan, Facts: The President had entered into a
who were signatories to the convention. Such treaty regarding the free trade among
rules and principles, therefore, form part of the countries as enunciated in the General
law of our nation even if the Philippines was not Agreement on Tariffs and Trade. The treaty
a signatory to the convention embodying them, was concurred by the Senate. Subsequently it
for our constitution has been deliberately was challenge on the ground that it violates
general and extensive in its scope and is not the constitutional provisions on national
confined to the recognition of rules and patrimony specifically the Filipino first concept.
principles of international law as contained in Moreover, the treaty was invalid because it
treaties to which our government may have was not ratified by the senate.
been or shall be a signatory.
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Issue: WON the treaty is invalid because it BASIS OF INTERNATIONAL LAW

was not ratified by the senate.
Question: Is International Law a true law? It
Held: No! The constitutional requirements depends on the school of thought which one follow.
were complied. The treaty was ratified by the A. Law of Nature- There is a natural and universal
president in his treaty making capacity and it principle of right and wrong, independent of any
was concurred by the Senate. Ergo, it became mutual intercourse or compact.
a valid law in the Philippine jurisdiction.
Ratification is reserve to the President of the B. Positivist Theory- The binding force of
Philippines and not to the Senate. The senate international law is derived from the agreement of
will only concur. sovereign states to be bound by it. It is not a law
of subordination but of coordination.
Note:
o In cases of treaties- ratification is C. Eclectic Theory- Proposes that both the law of
only made by the president; while nature and the consent of States serve as basis of
concurrence is for the senate. international law; to the effect that the system of
international law is based on the dictate of right
o In executive agreements- the reason as well as the practice of states.
concurrence of the senate is not needed
(Commissioner of Custom vs. Eastern Why is Public International Law observed?
Trading, 3 SCRA 351). Answer: States observed Public International
Law because of their:
4. Art. VII, Sec. 4- Supreme Court can 1. Belief in the reasonableness of the Law of
declare a treaty unconstitutional. Nations.
2. Fear of being unconventional.
3. Fear of reprisal from other states.
In case of irreconcilable conflict between a
treaty and a municipal law, which should What the functions of Public International Law?
prevail? A. The maintenance of international peace and
o First, an effort must be made to order;
reconcile the differences so as to make B. The protection of State rights and of
the two conflicting laws applicable. fundamental human rights thru sanctions, both
peaceful and coercive;
o Second, if it cannot be harmonize, the C. The economic, social, cultural and technological
law that should prevail depends on the development of states and such other entities as
forum where the case was filed. If it is may be possessed of an international
filed in the International Court of personality.
Justice, international law prevails;
but if it is filed in municipal courts, SOURCES OF INTERNATIONAL LAW
municipal law prevails (Philip Morris
vs. CA, 224 SCRA 576). A. Primary Sources:
1. Treaties- The general rule is that for a
Note: if filed in the municipal courts and a treaty to be considered a direct source of
treaty contravene the Constitution and international law, it must be concluded by
regulatory statutes that further police power, sizable number of states and thus reflect
the latter prevails. Treaties and ordinary the will or at least the consensus of the
legislative statutes may repeal each other. family of nations.
Apply the principle of lex posterior derogat
priori [which comes last shall prevail] Question: Are all treaties considered a
direct source of international law? No!
If the treaty was not concluded by great
body of states, such as bilateral treaties. But
a bilateral treaty is binding between the
parties especially if a dispute arose between
them.

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2. Custom- A practice which has grown up and international law, adjustment or settlement
between states and has come to be accepted of international disputes or situations which
as binding by the mere fact of persistent might lead to a breach of the peace.
usage over a long period of time. Custom is
distinguished from usage. The latter while 2. To develop friendly relations among nations
also a long established way of doing things based on respect for the principle of equal rights
by states is not coupled with the conviction and self-determination of peoples, and to take
that it is obligatory and right. other appropriate measures to strengthen
universal peace.
Requisites/Elements of International
Custom 3. To achieve international cooperation in solving
1. Duration or long state practice. international problems if an economic, social,
2. Consistency of the state practice or cultural, or humanitarian character, and in
the widespread repetition by states of promoting and encouraging respect for human
similar international acts over time. rights and for fundamental freedoms for all
3. Generality of the state practice or that without distinction as to race, sex, language, or
the acts are taken by a significant religion.
number of states and not rejected by
a significant number of states. 4. To be center for harmonizing the actions of
4. Opinio juris sive necessitates or the nations in the attainment of these common
requirement that the acts must occur ends.
out of a sense of obligation.
Principles of the UN [Article 2, UN Charter]
3. General Principles of Law- Mostly derived 1. The organization is based on the principle of the
from the law of nature and are observed by the sovereign equality of all its members.
majority of states because they are believed to
be good and just (e.g. prescription, estoppel, 2. All members in order to ensure to all of them
consent, res judicata and pacta sunt servanda). the rights and benefits resulting from
membership, shall fulfill in good faith the
B. Secondary Sources: These sources are not obligations assumed by them in accordance with
authorities in deciding a case but only have a the present charter.
persuasive effect because it only shows the
interpretation of a state to a particular 3. All members shall settle their international
international law. dispute by peaceful means is such manner that
1. Decisions of international tribunals international peace and security, and justice, are
2. Writings and teachings of the most highly not endangered.
qualified publicists
4. All members shall refrain in their international
relations from the threat or use of force against
THE UNITED NATIONS CHARTER the territorial integrity or political independence
of any state, or in any other manner inconsistent
Amendments to the charter shall come into force with the purposes of the UN.
for all members of the UN when they have been
adopted by a vote of 2/3rds of the members of the 5. All members shall give the UN every assistance
General assembly and ratified in accordance with their in any actions it takes in accordance with the
respective constitutional processes by 2/3rds of the present Charter, and shall refrain from giving
members of the UN, including all the permanent assistance to any state against which the UN is
members of the Security Council. taking preventive or enforcement action.

Purposes of the UN [Article 1, UN Charter]: 6. The organization shall ensure that states which
1. To maintain international peace and security, are not members of the UN act in accordance
and to that end: and to take effective collective with these principles so far as may be necessary
measure for the prevention and removal of for the maintenance of international peace and
threats to the peace, and for the suppression of security.
acts of aggression or other breaches of the
peace, and to bring about by peaceful means, 7. Nothing contained in the present charter shall
and in conformity with the principles of justice authorize the UN to intervene in matters which
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are essentially within the domestic jurisdiction of of members, questions relating to the
any estate or shall require the members to trusteeship system, and budgetary
submit such matters to settlement under the matters, are taken by 2/3rds of those
present charter, but this principle shall not present and voting. All other matters,
prejudice the application of enforcement including the determination of whether
measure under Chapter VII [Domestic a question is important or not, are
Jurisdiction Clause]. decided by a majority of those present
and voting.
Rules on Membership in the UN
1. Membership 2. The Security Council
o Can the General Assembly admit an o It consists of 5 permanent members and
applicant for membership without the 10 elective members.
favorable recommendation of the
Security Council? NO! Art. 4 par 2 of o In order to ensure prompt and effective
the UN charter states: ―The admission of action by the United Nations, its Members
any such state to membership in the UN confer on the Security Council primary
will be effected by a decision of the responsibility for the maintenance of
General Assembly upon the international peace and security, and
recommendation of the Security Council.‖ agree that in carrying out its duties under
this responsibility the Security Council acts
2. Suspension of members- A member of the on their behalf.
UN against which preventive or enforcement
action has been taken by the Security Council o It is task also for the regulation of
may be suspended from the exercise of its rights armaments. As such it can provide four
and privileges. It is effected by 2/3rds of those guidelines for the establishments and
present and voting in the General Assembly regulations of armaments.
upon the favorable recommendation of at least a
member of the Security Council, including all its Can the general Assembly on its own
permanent members. The suspension may be make recommendations to the Security
lifted alone by the Security Council, also by a Council with regard to dispute or
qualified majority vote. situation? No! ―The General assemble shall
not make any recommendations with regard
3. Expulsion of members- A member which has to that dispute or situation unless the Security
persistently violated the principles contained in Council so requests.‖ [Article 12, UN Charter]
the charter may be expelled by 2/3rds of those
present and voting in the General Assembly Regional Arrangements- to further
upon the recommendation of the Security international peace and security, the Security
Council by a qualified majority vote. Council shall encourage the development of
Regional Arrangements or agencies that deal
Organs of the United Nations with matters relating to the maintenance of
1. The General Assembly– is the most international peace and security as are
representative of the organs of the UN. It appropriate for regional action, provided that
consists of all the members of the Organization, such arrangements or agencies and their
each of which is entitled to send not more than activities are consistent with the purposes and
5 representatives and 5 alternates as well as principles of the UN.
such technical staff as it may need.
What are the actions the Security
What are the functions and powers of the Council may enforce to contain a
General Assembly? situation or dispute? In settling disputes,
o Each member of the General the Security Council will avail of the following
Assembly has one vote. methods successively:
1. Pacific settlement of dispute
o Decisions on ―important questions,‖ [peaceful settlement]- Article 33,
such as recommendations concerning UN Charter- The parties to any dispute,
international peace and security, the continuance of which is likely to
election of members of the councils, endanger the maintenance of
admissions, suspensions and expulsion international peace and security, shall
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first of all, seek a solution by negotiation, d. US

enquiry, mediation, conciliation, e. Russia
arbitration, judicial settlement.
The permanent members of the Security
Mediation- means that third party Council were given a preferred position
states participate in the resolution of the because of the feeling that they were the
conflicts. Third party states acts as states that, in view of their prestige and
mediator. power, would be called upon to provide the
leadership and physical force that might be
Judicial settlement- means that the needed to preserve the peace of the world.
disputing states agree to settle their
disputes through elevating their issues in Yalta Formula- voting in the Security Council
the ICJ. is governed by the Yalta formula as devised at
the Crimea Conference and subsequently
2. Enforcement measure [Article 41, UN incorporated in Art. 27 of the Charter.
Charter] According to this formula, each member shall
o The Security Council may decide have one vote. But distinction is made
what measures not involving the use between the Big Five and the non-permanent
of armed force are to be employed to members in the resolution of substantive
give effect to its decisions, and it questions. Procedural matters are to be
may call upon the Members of the decided by the affirmative vote of any nine or
United Nations to apply such more members. Decision on non-
measures. These may include procedural matters, on the other hand,
complete or partial interruption of requires the concurrence of also at least
economic relations and of rail, sea, nine (9) members, but including all the
air, and the severance of diplomatic permanent members. However, no
relations. member, permanent or not, is allowed to
vote on questions concerning the pacific
o Isolate the state which does not settlement of a dispute to which it is a
succumb to the settlement of party.
dispute. Cut all ties, especially
economic and political affiliations. “Characterization” of a question is
Tingnan mo kung mabubuhay pa ang considered a non-procedural matter in the
bansang yan! Security Council.

3. Defensive war [Article 42, UN 3. The Economic and Social Council

Charter] o The economic and social council may make
o Should the Security Council consider or initiate studies and reports with respect to
that measures provided for in Article international economic, social, cultural,
41 would be inadequate or have educational, health, and related matters and
proved to be inadequate, it may take may make recommendations with respect to
such action by air, sea, or land forces any such matters to the General Assembly, to
as may be necessary to maintain or the members of the UN, and to the
restore international peace and specialized agencies concerned.
security. Such action may include
demonstrations, blockade, and other o It may make recommendations for the
operations by air, sea, or land forces purpose of promoting respect for, and
of members of the UN. observance of, human rights and
fundamental freedoms for all.
o East Timor Situation- where
members of the UN interfered. Syria- o It may prepare draft conventions for
Gaddafi case. submission to the General Assembly, with
respect to matters falling within its
Big Five: (FUR CU) competence.
a. China
b. France o It may call, in accordance with the rules
c. UK prescribed by the UN, international
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conferences on matters falling within its Security Council. One of his duties is to bring to
competence. the attention of the Security Council any matter,
which in his opinion may threaten international
4. The Trusteeship Council peace and security.
o The UN shall establish under its authority an
international trusteeship system for the Does the Charter of the UN allow war as a
administration and supervision of such method of maintaining international peace? NO!
territories as may be placed thereunder by war is to be employed only in the following instances:
subsequent individual agreements. These
territories are hereinafter referred to as trust 1. Article 42- Defensive War: Should the
territories. Security Council consider that Enforcement
Actions would be inadequate, it may take such
o The basic objective of the trusteeship system action by sea, air, or land forces as may be
are the following: necessary to maintain or restore international
1. To further international peace and peace and security. Such action may include
security; demonstrations, blockade, and other operation
by air, sea, or land forces of members of the
2. To promote the political, economic, UN.
social and educational advancement of
the inhabitants of the trust territories, 2. Article 51- Individual or Collective Self-
and their progressive development defense: Nothing in the present charter shall
towards self-government or impair the inherent right of individual or
independence as may be appropriate to collective self-defense if an armed attack occurs
the particular circumstances of each against a Member of the UN, until the Security
territory and its peoples and the freely Council has taken measures necessary to
expressed wishes of the peoples maintain the international peace and security.
concerned, and as may be provided by
the terms of each trusteeship Requisites of Self-defense
agreement. 1. There is an armed attack against any
member of the UN
3. To encourage respect for human rights 2. The Security Council initiated measures
and for fundamental freedoms for all to prevent it but it failed.
without distinction as to race, sex,
language, or religion, and to encourage
recognition of the independence of the INTERNATIONAL COURT OF JUSTICE
peoples of the world; and
What is International Court of Justice? The ICJ is
4. To ensure equal treatment in social, a judicial organ of the UN. The Court is composed of
economic, and commercial matters for 15 members who are elected by absolute majority
all members of the United Nations and vote in the General Assembly and the Security Council.
their nationals, and also equal treatment No two of them may be nationals of the same State.
for the latter in the administration of All questions are decided by a majority of the judges
justice, without prejudice to the present, the quorum being nine when the full court is
attainment of the foregoing objectives. sitting.

o The trusteeship system shall not apply to What is the jurisdiction of the ICJ, is it only for
territories which have become members of adversarial cases?
the UN, relationship among which shall be o No! The ICJ is not only an adversarial/
based on respect for the principle of contentious court but also an advisory
sovereign equality. opinion court. However not all states can ask
for advisory opinion. As such issues concerning
5. The International Court of Justice social, political, and economic are cognizable by
the ICJ.
6. The Secretariat- the chief administrative organ
of the UN, headed by the Secretary-General. The o Optional Jurisdiction Clause [Article 36(1)
Secretary-General is chosen by the General ICJ Statute]- The jurisdiction of the Court
Assembly upon the recommendation of the comprises all cases that the parties refer to it
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and all matters specially provided for in the What are the official languages of the ICJ?
Charter of the UN or in treaties and conventions o French and English
in force.
o If the parties agree that the case shall be
What the inherent limitations to the ICJ in conducted in French, the judgment shall be
deciding a case? delivered in French. If the parties agree that the
1. If one of the parties did not consent to elevate case shall be conducted in English, the
the case to the ICJ. The ICJ will have judgment shall be delivered in English.
jurisdiction over the case only if both the
parties agree to elevate their case before it. The o In the Absence of an agreement as to which
agreement is put in the “compromis” [French language shall be employed, each party may, in
word kaya pronounce it without ―s‖]. the pleadings, is the language which it prefers;
the decision of the court shall be given in French
2. Art. 59 of ICJ Statute: The decision of the and English. In this case the court shall at the
court has no binding force except between the same time determine which of the two texts
parties and in respect of that particular case. No shall be considered as authoritative.
stare decisis in international law. This is a
limitation because the ICJ cannot apply their o The court shall, at the request of any party,
decision in a previous case to a present case authorize a language other than French or
which has similar facts and issues. English to be used by that party.

What is the process of deciding a case in the

ICJ? [Article 38, ICJ Statute] In deciding a case the Do the members of the ICJ enjoy diplomatic
court will apply the following sources of international immunity? Yes. The members of the court, when
law in order: engaged in the business of the court, shall enjoy
1. International conventions, whether general or diplomatic privileges and immunities.
particular, establishing rules expressly
recognized by the contesting states. Who can be Parties to the ICJ? Only international
persons can be parties before the ICJ. Private persons
[Priority: Titingnan muna ng hukuman kung are not allowed.
may applicable treaty na nilahokan ng dalawang
magkatunngali. Kung wala, gamitin ang mga Illustration: Santiago Wakas went to Mexico for a
sumusunod] vacation. He was so inlove with the front desk clerk of
the hotel where he stayed. He went directly to the
2. International custom, as evidence of a general clerk and said, ―Hola Senora, yo te amo con todo mi
practice accepted as law; Corazon!‖ (Hi! Miss, I love you with all my heart) the
lady politely answered ――no senor, yo ya estoy
3. The general principles of law recognized by comprometido a Guillermo Lawagan…..y yo estoy
civilized nations. locamente elogiar a Francisco‖ [No sir it cannot be I
am engaged to Guillermo Lawagan and I am madly
4. Judicial decisions and the teachings of the most inlove to Francisco]. Santiago did not heed the plea,
highly qualified publicists of the various nations so he insisted on hugging the clerk. The Policia came
as subsidiary means for the determination of and arrested Santiago. He was brought to the police
rules of law. [These sources have no binding station where he was tortured. He escaped and went
effect but only persuasive to the court.] back to the Philippines.

Note: The ICJ has the power to decide a case ex Questions:

aeqou et bono, if the parties agree thereto. 1. Can Santiago file a case against the state of
Mexico in Philippine courts?
 Ex aequo et bono – this is the basis for a 2. Can Santiago file a case against the state of
decision by an international tribunal on the Mexico in Mexico?
grounds of justice and fairness.
3. Can he file a case against the state of Mexico
 The ICJ can disregard procedural matters in before the ICJ?
deciding a case and decide the case according
to what is fair and equitable to the parties if
the parties agree thereto.
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Answer: enemy alien. Once released, Nottebohm applied for

1. No. It is violative of the Principle of par in readmission to Guatemala, but his application was
panem non- habet imperium. A state cannot be refused. Nottebohm moved his residence to
sued in the courts of another state. It is also Liechtenstein (where he was a citizen), but Guatemala
violative of the territoriality principle of criminal had already taken steps to confiscate Nottebohm‘s
law of the Philippines. property in Liechtenstein. Guatemala succeeded in
1949. Liechtenstein instituted legal proceedings
2. Kalokohan pag ginawa mo ito! Do you think the against Guatemala in the International Court of Justice
action will proper? Never! (ICJ), requesting the court declare Guatemala had
violated international law ―in arresting, detaining,
3. No! Only international persons and states can be expelling and refusing to readmit Mr. Nottebohm and
a party before the ICJ. The remedy of Santiago in seizing and retaining his property.‖ Additionally,
is to petition his government to file a case in his Liechtenstein requested the ICJ to order Guatemala to
favor against the state of Mexico. pay compensation as reparation. Guatemala defended
by contesting Nottebohm‘s Liechtenstein nationality.
What then is the remedy of Santiago? Ask his
government to represent him [under the principle of HELD: Applying the principle of effective
diplomatic protection], so that they can file a cases nationality, Nottebohm has only a tenuous
against Mexico before the ICJ. This is subject to the relationship with Lichtenstein. As such he is still a
consent of Mexico, because if it does not consent to German national, considered an enemy of the US at
be sued in the ICJ, the case will not prosper. that time. Lichtenstein cannot have diplomatic
protection over his person.
Question: Who will determine the nationality of
an individual?
o As a general rule, it is the law of the state INTERNATIONAL CRIMINAL COURT [Rome
where the person is considered to be a national Statute]
[Hague Convention].
The ICC shall have the power to exercise jurisdiction
o Exception: principle of effective over persons [take note!] for the most serious
nationality- it provides that a person is bound crimes of international concerns, and shall be
by the state where he has habitual, usual, and complementary to national criminal jurisdictions. [Art.
principal social, political and economic affiliation. 1, ICC Statute]

Illustrative case: Liechtenstein v. Guatemala

ICJ Organs of the Court [Article 34, Rome Statute]
o The Presidency
FACTS: Pursuant to the principle of diplomatic o An Appeals Division, A Trial Division and a Pre-
protection this case was brought by Liechtenstein to trial Division
the ICJ on behalf of Nottebohm as its alleged national o The Office of the Prosecutor
which it ought to protect. o The Registry

Nottebohm was born a German national in 1881. He Judges of ICC- 18 judges, but may be increased by
received citizenship through naturalization from the Presidency. [Article 36, Rome Statute].
Liechtenstein (plaintiff) in 1939. Prior to this date, in
1905, Nottebohm lived and performed substantial Seat of the Court [Article 3, Rome Statute]
business dealings in Guatemala (defendant), and o The seat of the court shall be established at The
returned frequently to Germany to visit family. Once Hague in Netherlands [the host state]
Nottebohm received his citizenship from Liechtenstein,
he returned to Guatemala and Guatemalan authorities o The court shall enter into a headquarters
updated his nationality in the Register of Aliens. On agreement with the host State, to be approved
July 17, 1941, the United States blacklisted Nottebohm by the Assembly of the States Parties and
and froze all his assets which were located in the thereafter concluded by the president of the
United States. War broke out between the United Court on its behalf.
States and Germany, and between Guatemala and
Germany, on December 11, 1941. Nottebohm was o The Court may sit elsewhere, whenever it
arrested in Guatemala in 1943 and deported to the considers it desirable.
United States, where he was held until 1946 as an
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Legal Status and Powers of the Court [Article 4, person being investigated, prosecuted or
Rome Statute] convicted shall apply.
o The Court shall have international legal
personality. It shall also have such legal capacity 4. Individual criminal responsibility.
as may necessary for the exercise of its o The court shall have jurisdiction over natural
functions and the fulfillment of its purposes. persons.

o The Court may exercise its functions and o A person who commits a crime within the
powers, as provided in this statute, on the jurisdiction of the court shall be individually
territory of any State Party and, by special responsible and liable for punishment in
agreement, on the territory of any other State. accordance with the Rome Statute.

Jurisdiction of the Court [Article 5, Rome 5. Exclusion of Jurisdiction over persons

Statute] - The jurisdiction of the Court shall be under eighteen- The court shall have no
limited to the most serious crimes of concern to the jurisdiction over any person who was under the
international community as a whole. The Court has age of 18 at the time of the alleged commission
jurisdiction in accordance with respect to the following of a crime.
crimes:
1. Genocide 6. Irrelevance of official capacity
2. War crimes o This statute shall apply equally to all
3. Wars of aggression persons without any distinction based on
4. Crimes against humanity official capacity. In particular, official
capacity as Head of State or Government, a
GENERAL PRINCIPLES OF CRIMINAL LAW member of a Government or parliament,
APPLICABLE IN THE ICC [ARTICLES 22-33, and elected representative or a government
ROME STATUTE] official shall in no case exempt a person
from criminal responsibility under this
1. Nullum crimen sine lege Statute, nor shall it, in and of itself,
o A person shall not be criminally responsible constitute a ground for reduction of
under this Statute unless the conduct in sentence.
question constitutes, at the time it takes
place, a rime within the jurisdiction of the o Immunities or special procedural rules which
Court. may attach to the official capacity of a
o The definition of a crime shall be strictly person, whether under national or
construed and shall not be extended by international law, shall not bar the Court
analogy. In case of ambiguity, the definition from exercising its jurisdiction over such
shall be interpreted in favor of the person person.
being investigated, prosecuted or convicted.
7. Responsibility of commanders and other
o This article shall not affect the superiors for the act of their subordinates
characterization of any conduct as criminal as long as they are under their effective
under international law independently of this authority and control.
Statute.
8. Non- applicability of the statute of
2. Nulla poena sine lege- A person convicted by limitations- The crimes within the jurisdiction
the court may be punished only in accordance of the court shall not be subject to any statute
with the Rome Statute. of limitations.

3. Non- retroactivity ratione personae 9. Mental element

o No person shall be criminally responsible o Unless otherwise provided, a person shall be
under this Statute for conduct prior to the criminally responsible and liable for
entry into force of the Statute. punishment for a crime within the
jurisdiction of the court only if the material
o In the event of a change in the law elements are committed with intent and
applicable to a given case prior to a final knowledge.
judgment, the law more favorable to the

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o For purposes of this article, a person has REFERRAL OF A SITUATION BY A STATE PARTY
intent where: [ARTICLE 14 OF ROME STATUTE]
a. In relation to conduct, that person 1. A State Party may refer to the Prosecutor a
means to engage in the conduct; situation in which one or more crimes within
b. In relation to consequence, that person the jurisdiction of the court appear to have
means to cause that consequence or is been committed requesting the prosecutor to
aware that it will occur in the ordinary investigate the situation for the purpose of
course of events. determining whether one or more specific
persons should be charged with the
o For purposes of this article, „knowledge‟ commission of such crimes.
means awareness that a circumstance exists
or a consequence will occur in the ordinary 2. As far as possible, a referral shall specify the
course of events. ‗Know‘ and ‗knowingly‘ relevant circumstances and be accompanied
shall be construed accordingly. by such supporting documentation as is
available to the State referring the situation.
PRECONDITIONS TO THE EXERCISE OF
JURISDICTION [ARTICLE 12, ROME STATUTE] ISSUES OF ADMISSIBILITY [ARTICLE 17 OF
1. A state which becomes a Party to this Statue ROME STATUTE]
thereby accepts the jurisdiction of the Court with o The Court shall determine that a case is
respect to the crimes under the jurisdiction of inadmissible where [Titingnan ng ICC kung
the ICC. admissible sa kanyang forum ang mga
sumusunod o hindi]:
2. In the case of Article 13 paragraph [a] or [c], a. The case is being investigated or
the court may exercise its jurisdiction if one or prosecuted by a State which has
more of the following States are parties to this jurisdiction over it, unless the State is
Statue or have accepted the jurisdiction of the unwilling or unable genuinely to carry out
Court in accordance with paragraph 3. the investigation or prosecution.
[a] the state territory of which the conduct in
question occurred or, if the crime was b. The case has been investigated by a state
committed on board a vessel or aircraft, the which has jurisdiction over it and the state
state of registration of that vessel or aircraft. has decided not to prosecute the person
[b] The state of which the person accused concerned, unless the decision resulted
of the rime is a national. from the unwillingness or inability of the
State genuinely to prosecute.
3. If the acceptance of a state which is not a party to c. The person concerned has already been
this statute is required under paragraph 2, the tried for conduct which is the subject of
state may, be declaration lodged with the the complaint and a trial by the court is
registrar; accept the exercise of jurisdiction by the not permitted.
court with respect to the crime is question. The
accepting state shall cooperate with the court d. The case is not of sufficient gravity to
without any delay or exception. justify further action by the Court.

EXERCISE OF JURISDICTION [ARTICLE 13, o In order to determine unwillingness in a

ROME STATUTE] - The court will have jurisdiction particular case, the court shall consider, having
over the 5 aforementioned crimes if: regard to the principles of due process
a. A situation in which one or more of such recognized by international law, whether one or
crimes appears to have been committed is meore of the following exists, as applicable:
referred to the prosecutor by a State party. 1. The proceedings were or are being
undertaken or the national decision was
b. A situation in which one or more of such made for the purpose of shielding the
crimes appears to have been committed is person concerned from criminal
referred to the prosecutor by the Security responsibility for crimes within the
Council. jurisdiction of the Court.

c. The prosecutor has initiated an investigation 2. There has been an unjustified delay in
in respect of such a crime. the proceedings which in the

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circumstances is inconsistent with intent indicates a relation of birth or origin and implies
to bring the person concerned to justice. a common race, usually characterized by
community of language and customs.
3. The proceedings were not or are being
conducted independently or impartially, The State (or nation) should possess the
and they were or are being conducted in following elements in order to be regarded as an
a manner which, in the circumstances, is international person: (P GIST)
inconsistent with intent to bring the 1. A permanent population
person concerned to justice. 2. A defined territory
3. Government
o In order to determine inability in a particular case, 4. Sovereignty or independence
the court shall consider whether, due to a total or
substantial collapse or unavailability of its national GOVERNMENT is defined as the agency
judicial system, the State is unable to obtain the through which the will of the state is formulated,
accused or the necessary evidence and testimony expressed and realized.
or otherwise unable to carry its proceedings.
II. International persons
INTERNATIONAL TRIBUNAL FOR RWANDA AND
BOSNIA o Belligerent communities if recognized
o Both the Bosnia and Rwandan war crimes
tribunals were authorized by U.N. Security Pending determination of whether or not the
Council resolutions. Legal bases of jurisdiction belligerent community should be fully
include the U.N. Charter, and the Geneva, recognized as a state, it is treated as an
Hague and Genocide conventions. These are international person and becomes directly
the first two international war crimes tribunals subject to the laws of war and neutrality.
since Nuremberg.
o The Vatican/ Holy See

PART TWO: SUBJECTS OF INTERNATIONAL Question: Is the Vatican or Holy See a

LAW State? Answer: Yes.
1. There are around 1,000 people, almost
A SUBJECT of international law is an entity that has all of whom are individuals residing
rights and responsibilities under that law. It has an therein by virtue of their office;
international personality in that it can directly assert 2. There is a definite territory –
rights and be held directly responsible under the law approximately 100 acres;
of nations. 3. There is a government – under the Pope
himself;
An OBJECT of international law is merely indirectly 4. There is independence. The State of the
vested with rights and obligations in the international Vatican City was created by the Lateran
sphere [e.g., a Filipino private citizen is generally Treaty of Feb. 1, 1922 between Italy and
regarded not as a subject but as an object] the Holy See. As of January 1, 1994, over
100 states maintain diplomatic relations
Different Subjects of International Law: with the Vatican, an undeniable proof of
its wide acceptance
I. State
An independent state may be neutralized
A STATE may be defined as a group of people through agreement with other states by virtue
living together in a definite territory under an of which the latter will guarantee its integrity
independent government organized for political and independence provided it refrains from
ends and capable of entering into international taking any act that will involve it in war or other
relations. hostile activity except for defensive purposes.

The state is a legal concept; nation is only a III. International Administrative Bodies-
racial or ethnic concept. Certain Administrative Bodies created by
agreement among states may be vested with
The term ‗nation‘, strictly speaking, as international personality when two conditions
evidenced by its etymology (nasci, to be born), concur, to wit:
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1. That their purposes are mainly non- PART FOUR: RECOGNITION

political;
2. That they are autonomous, i.e., not Recognition- Is a political act of the executive
subject to the control of any state (e.g. branch of the government wherein acknowledgement
ILO, IMF, FAO) of the claims to governmental authority of foreign
entities is made and the legal consequences flowing
IV. The United Nations from such acknowledgement is admitted.

Question: Who has the prerogative of making

PART THREE: STATES recognition? The president, as the architect of the
foreign affairs and relations of the Philippines. Ergo,
The Principle of State Continuity - From the recognition is an executive and not a legislative
moment of its creation, the state continues as a act!
juristic being notwithstanding changes in its
circumstances, provided that they do not result in the Objects of Recognition:
loss of any of its essential elements (people, territory, 1. State
government, sovereignty). Once its identity as an 2. Government
international person has been fixed and its position in 3. Belligerent community
the international community established, the state
continues to be the same corporate person whatever In every case, it is important that the act
changes may take place in its international operation constituting recognition shall give a clear
and government. (Fenwick) indication of an intention:
1. To treat the new state as such;
Succession of States- Takes place when one state 2. To accept the new government as having
assumes the rights and some of the obligations of authority to represent the state it purports to
another because of certain changes in the condition of govern and to maintain diplomatic relations with
the latter. The political laws of the former sovereign it;
are automatically abrogated and may be restored only 3. To recognize in the case of insurgents that they
by a positive act on the part of the new sovereign. But are entitled to exercise belligerent rights.
non-political laws, such as those dealing with familial
relations, are deemed continued unless they are Recognition of States - The recognition of a new
changed by the new sovereign or are contrary to the state is the free act by which one or more states
institutions of the Successor State. All the rights of the acknowledge the existence on a definite territory of a
predecessor state are inherited by the successor state human society politically organized, independent of
but this is not so where liabilities are concerned. The any existing state, and capable of observing the
Successor State, in fact, can determine which liabilities obligations of international law, and by which they
to assume and which to reject solely on the basis of its manifest therefore their intention to consider it a
own discretion. member of the international community.

Succession of Governments- One government

replaces another either peacefully or by violent Recognition of Governments- De Jure or De
methods. As far as the rights of the predecessor Facto: The recognition of the new government of a
government are concerned, they are inherited in toto State which has been already recognized is the free
by the successor government. Regarding the act by which one or several states acknowledge that a
obligations, distinction is made according to the person or a group of persons is capable of binding the
manner of the establishment of the new government. state which they claim to represent and witness their
The rule is that where the new government was intention to enter into relations with them.
organized by virtue of a constitutional reform duly
ratified by a plebiscite, the obligations of the replaced Recognition De Jure Recognition De Facto
government are also completely assumed by the 1. Relatively 1. Provisional.
former. Conversely, where the new government was permanent. 2. Does not vest title
established through violence, as by a revolution, it 2. Vests title in the in the government
may lawfully reject the purely personal or political government to its to its properties
obligations of the predecessor government but not properties abroad. abroad.
those contracted by it in the course of official 3. Bring about full 3. Limited to certain
business. diplomatic relations. juridical relations.

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Three Kind of De Facto Government: Recognition of Belligerency

1. That which is established by the inhabitants who o Belligerency exists when the inhabitants of a
rise in revolt against and depose the legitimate state rise up in arms for the purpose of
regime; overthrowing the legitimate government.
2. That which is established in the course of war by
the invading forces of one belligerent in the Distinctions between Belligerency and
territory of the other belligerent, the Insurgency
government of which is also established; Belligerency Insurgency
3. That which is established by the inhabitants of a 1. more serious and
state who secede therefrom without 1. initial stage of
widespread than
belligerency
overthrowing its government. insurgency
2. directed by a civil 2. directed by
Under the TOBAR or WILSON Principle, which government military authorities
was expressed in a treaty of the Central American 3. there are settled rules 3. usually not
Republics in 1907 at the suggestion of Foreign regarding its recognition recognized
minister Tobar of Ecuador and reiterated in 1913 by
Pres. Woodrow Wilson of the US, recognition shall CONDITIONS FOR THE RECOGNITION OF
not be extended to any government established by BELLIGERENCY
revolution, civil war, coup d‘etat or other forms of 1. There must be an organized civil government
internal violence until the freely elected directing the rebel forces;
representatives of the people have organized a 2. The rebels must occupy a substantial portion of
constitutional government. the territory of the state;
3. The conflict between the legitimate government
A similar inhibition was applied by the STIMSON and the rebels must be serious, making the
Principle against governments established as a outcome uncertain;
result of external aggression. It was incumbent upon 4. The rebels must be willing and able to observe
the members of the League of Nations not to the laws of war.
recognize any situation, treaty or agreement, which
may be brought about by means contrary to the Upon recognition by the Parent State, the belligerent
covenant of the League of Nations or to the Pact of community is considered a separate state for the
Paris. purposes of the conflict it is waging against the
legitimate government. Their relations with each
Under the ESTRADA Doctrine, the Mexican other shall, thenceforth and for the duration of the
government declared that it would, as it saw fit, hostilities, be governed by the laws of war, and their
continue or terminate its relations with any country relations with other states shall be subject to the
in which a political upheaval had taken place and in laws of neutrality. The parent state shall no longer
so doing it does not pronounce judgment, either be liable for any damage that may be caused to
precipitately or a posteriori, regarding the right of third states by the rebel government.
foreign nations to accept, maintain, or replace their
governments or authorities. Rights of a State- These rights attaches upon the
recognition of a state.
EFFECTS OF RECOGNITION OF STATES AND 1. Right of existence and self-defense
GOVERNMENT 2. The right of sovereignty and independence
1. Full diplomatic relations are established except 3. Right of equality
where the government recognized is de facto. 4. Right of property and jurisdiction
2. The recognized state or government acquires 5. Right of legation or diplomatic intercourse
the right to sue but not to be sued in the
courts of the recognizing state.
3. The recognized state or government has a right THE RIGHT OF EXISTENCE AND SELF-DEFENSE:
to the possession of the properties of its
predecessor in the territory of the recognizing RIGHT TO EXISTENCE
state.
4. All acts of the recognized state or government Gen. Rule: Art 2, pars 3 & 4 (UN Charter) - All
are validated retroactively, preventing the members shall settle their international disputes by
recognizing state from passing upon their peaceful means in such a manner that international
legality in its own courts. peace and security, and justice, are not endangered.

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All members shall refrain in the international relations

from the threat or use of force against the territorial d. An attack by the armed forces of a State on the
integrity or political independence of any state, or in land, sea or air forces, or marine and air fleets
any other manner inconsistent with the purposes of of another State;
the UN.
e. The use of armed forces of one State which are
Exceptions: Art 51- Nothing shall impair the within the territory of another State with the
inherent right of individual or collective self-defense if agreement of the receiving State, in
an armed attack occurs against a member of the UN, contravention of the condition provided for in
until the Security Council has taken measures the agreement or any extension of their
necessary to maintain international peace and presence in such territory beyond the
security. termination of the agreement;

Art. 42- If pacific settlement methods are inadequate f. The action of a State in allowing its territory,
the Security Council ―...may take action by air, sea, or which it has placed at the disposal of another
land forces as may be necessary to maintain or restore State, to be used by that other State for
international peace and security. Such action may perpetrating an act of aggression against a third
include demonstrations, blockade, and other State;
operations by air, sea, or land forces of members of
the UN. [Enforcement Action]. g. The sending by or on behalf of a State of armed
force against another State of such gravity as to
amount to the acts listed above, or its
RIGHT TO SELF-DEFENSE: requisites substantial involvement therein.
1. Presence of an armed attack – the mere
apprehended danger or any direct threat to the
state does not, by itself alone, warrants the RIGHT TO SOVEREIGNTY
employment by the state of any force against a Principle: sovereign equality and internal
suspected or potential enemy. sovereignty.

2. The right may be resorted to only upon a clear Gen. Rule: A state has the right to sovereignty and
showing of a grave or actual danger to the independence.
security of the state.
Exceptions:
3. The self-defensive measures must be limited by 1. Principle of auto-limitation: self-imposed
necessity and kept clearly within it. limitation or the limiting of the state of its own
self, such as entering into treaties.
AGGRESSION is the use of armed force by a state 2. Membership in the UN.
against the sovereignty, territorial integrity or political 3. Valid interventions- an act by which a state
independence of another state, or in any other interferes with the domestic or foreign affairs of
manner inconsistent with the charter of the UN. another state or states through employment of
force or threat of force. This includes:
Article 3, UN Charter- Any of the following acts, o Principle of Refoulement [its French so
regardless of a declaration of war shall, subject to and pronounce it as ―re-fo-me‖] - refugees
in accordance with the provisions of Article 2, qualify cannot be compelled to return to their
as an act of aggression: own state if civil unrest did not subside.
a. The invasion or attack by the armed forces of
a State of the territory of another State, or any o Principle of Abatement- where a civil
military occupation, however temporary, war occurs and there is a spilling out of
resulting from such invasion or attack or any refugees in the boundaries of two states,
annexation by the use of force of the territory of the troops of the other state near the
another State of part thereof; boundary may intrude to prevent the
violations of human rights.
b. Bombardment by the armed forces of a State
against the territory of another State; o Principle of hot pursuit

c. The blockade of the ports or coasts of a State o Principle of the right of visit
by the armed forces of another State;
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o When it is decreed by the Security o Immunity is only for purely governmental

Council as a preventive or functions (jure imperii) and not for purely
enforcement action for the proprietary acts (jure gestionis).
maintenance of international peace and
security. o Note also that the execution of contracts
o When requested from sister states or in furtherance of sovereign functions
from the UN by the parties to a shall not result to an implied waiver of
dispute or by a state beset by rebellion. immunity from suit (U.S. vs. Ruiz) - The
government of the US rented private
Drago Doctrine: This doctrine was properties for board and lodging of their
embodied in the Hague Convention of 1907 armed forces.
through the provision that ―the contracting
powers agree not to have recourse to armed o Mere entering into a contract does not
force for the recovery of contract debts divest the state from its immunity. It is
claimed from the government of one country the nature of the contract that
by the government of another country as determines the liability of the state
being due to its nationals.‖ (Syqia vs. Lopez, 84 SCRA 312).

Independence– freedom from external control in the 3. Act of state doctrine-

conduct of external and internal affairs o The courts of one country will not sit in
judgment on the acts of the government
Sovereignty– is the supreme power of the state to of another country done within the
command and enforce obedience; it is the power to latter‘s territory (Underhill vs.
which, legally speaking, all interests are practically Hernandez).
subject and all wills subordinate.
o It is considered as an act of state if these
Principle of Contingent Sovereignty- sovereignty requisites concur: the act is public in
is dependent upon the fulfillment of the state of nature, official in character, sovereign in
certain fundamental obligations particularly to its own purpose.
people.
o EXCEPTION: The Sabatino
2 Aspects of Sovereignty amendment- the Cuban government
1. Internal Sovereignty– refers to the power of confiscated all properties of American
the state to direct its domestic affairs, as when nationals in Cuba without paying just
it establishes its government, enacts laws for compensation. The US court pronounced
observance within its territory, or adopts that when international laws are blatantly
economic policies. violated, a state may disregard the Act of
State Doctrine and rule on the acts of
2. External Sovereignty– signifies the freedom another state.
of the state to control its own foreign affairs, as
when it concludes treaties, makes war or peace,
and maintains diplomatic and commercial THE RIGHT OF PROPERTY AND JURISDICTION
relations. (also referred to as independence)

TERRITORY- The fixed portion of the surface of the

RIGHT TO EQUALITY earth inhabited by the people of the state. The
Principle: territory must be permanent and indicated with
1. Sovereign Equality [par in parem non habet precision because its limits generally define the
imperium]- All the rights of a state, regardless jurisdiction of the state. The territory must be big
of their number, must be observed and enough to provide for the needs of the population but
respected by the international community in the should not be so extensive as to be difficult to
same manner that the rights of other states are administer or defend from external aggression.
observed and respected.
Territory may be acquired through:
2. Principle of sovereign immunity- A state is 1. Discovery and occupation
immune from the exercise of jurisdiction by 2. Prescription
another. 3. Cession
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4. Subjugation Prescription– it requires long, continued and adverse

5. Accretion possession to vest acquisitive title in the claimant.
Significantly, however, there is as yet no rule in
Territory may be lost through: international law fixing the period of possession
1. abandonment or dereliction necessary to transfer title to the territory from the
2. cession former to the subsequent sovereign.
3. subjugation
4. prescription Cession– is a method by which territory is transferred
5. erosion form one state to another by agreement between
6. revolution them. (Sale, donation, barter or exchange and
7. natural causes testamentary disposition)

Discovery and Occupation is an original mode of Subjugation– territory is deemed acquired by

acquisition by which territory not belonging to any subjugation when, having been previously conquered
state, or terra nullius, is placed under the sovereignty or occupied in the course of war by the enemy, it is
of the discovering state. The territory need not be formally annexed to it at the end of that war.
uninhabited provided it can be established that the
natives are not sufficiently civilized and can be Accretion– is a mode of acquiring territory based on
considered as possessing not the rights of sovereignty the principle of accessio cedat principali. It is
but only rights of habitation. accomplished through both natural and artificial
processes.
Requisites: (1.)Possession (2.)administration a. gradual and imperceptible deposit of soil on
the coasts of the country through the action
Open seas and outer space are res communes of the water
and not susceptible to discovery and b. reclamation projects
occupation. c. formation of islands

The Inchoate title of discovery performs the

function of barring other states from entering the COMPONENTS OF TERRITORY:
territory until the lapse of a reasonable period within 1. Terrestrial domain – land mass
which the discovering state may establish a settlement 2. Maritime and fluvial domain – consists of
thereon and commence to administer it; the bodies of water within the land mass and
the waters adjacent to the coasts of the state up
Discovery alone, without any subsequent act, cannot to a specified limit.
at the present time suffice to prove sovereignty over
the Island of Palmas, on Miangas (Island of Palmas o Territorial Sea– may be described as the
Case). belt of waters adjacent to the coasts of the
Title was deemed acquired by France over an island it state, excluding the internal waters in bays
had formally claimed but had never administered. If a and gulfs, over which the state claims
territory, by virtue of the fact that it was completely sovereignty and jurisdiction. Traditionally,
uninhabited, is, from the first moment when the the breadth of the territorial sea was
occupying state makes its appearance there, at the reckoned at 3 nautical miles, or a marine
absolute and undisputed possession of that state, from league, from the low-water mark.
that moment the taking of possession is considered
accomplished and the occupation is formally o Internal waters- all waters from the
completed (Clipperton Island Case). coastline landwards. It includes bays where
the measurement of its mouth is 24 miles.
Dereliction– territory is lost by dereliction when the Historical bays are not covered because
state exercising sovereignty over it physically international law considers them as internal
withdraws from it with the intention of abandoning it waters regardless of its mouth‘s width.
altogether.
o Convention on the law of the Sea
Two Conditions: (1994) – the new convention provides
a. Act of withdrawal among others for a uniform breadth of 12
b. Intention to abandon miles for the territorial sea, a contiguous
zone of 12 miles from the outer limits of the
territorial sea, an economic zone or
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patrimonial sea extending 200 miles from 6. Such other persons or property, including
the low-water mark of the coastal state. organizations like the UN, over which it may,
by agreement waive jurisdiction.
o The Archipelagic Doctrine: Draw
baselines around islands to form one unit. 2. Nationality Principle of Jurisdiction- a state
has jurisdiction if a national resides in a foreign
3. The aerial domain – is the airspace above the state.
terrestrial domain and the maritime and fluvial o Nationality principle: Laws relating to
domain of the state, to an unlimited altitude but family rights and duties, or to the status,
not including outer space. condition and legal capacity of persons are
binding upon citizens of the Philippines,
even though living abroad [Art 15 NCC].
JURISDICTION- It is the authority exercised by a
state over persons and things within or sometimes o Also, intestate and testamentary
outside its territory, subject to certain exceptions. succession, both with respect to the order
of succession and to the amount of
Principles of Jurisdiction successional rights and to the intrinsic
1. Territorial Jurisdiction- validity of testamentary provisions shall be
regulated by the national law of the person
General Rule: As state has jurisdiction over whose succession is under consideration,
property, persons and acts occurring within a whatever maybe the nature of the property
state‘s territory. and regardless of the country wherein said
property may be found [Art. 16, par.2
o Subjective territorial principle- a state NCC].
has the jurisdiction to prosecute and punish
crimes commenced within its territory but 3. Protective Principle of Jurisdiction- a state
is completed in the territory of another has a significant interest in protecting itself against
state. acts performed outside its territory by non-
nationals that threaten the existence/functioning
o Objective territorial principle- a state of the state.
has jurisdiction over acts commenced in
another state and completed within the 4. Passive Personality Jurisdiction- a state
state asserting jurisdiction or producing assumes jurisdiction to protect its nationals from
substantial effects inside its territory. injury.

o Personal Jurisdiction- the power 5. Universal Jurisdiction- a state assume criminal

exercised by a state over its nationals. jurisdiction over a person for a crime even if it was
Rendered passé by territorial jurisdiction. committed outside the territory of the prosecuting
state, regardless of the nationality, residence or
Exceptions: the state cannot have jurisdiction other relationship of the accused with the
over the following even if within its territory prosecuting state.
[Principle of Ex-territoriality]:
In relation to Article 2 of the RPC: Article 2.
1. Foreign states, heads of states, diplomatic Application of its provisions. - Except as provided
representatives, and consuls to a certain in the treaties and laws of preferential application,
degree. the provisions of this Code shall be enforced not
2. Foreign state property, including embassies, only within the Philippine Archipelago, including its
consulates, and public vessels engaged in atmosphere, its interior waters and maritime zone,
non-commercial activities. but also outside of its jurisdiction, against those
3. Acts of state. who:
4. Foreign merchant vessels exercising the 1. Should commit an offense while on a
rights of innocent passage or arrival under Philippine ship or airship;
stress. 2. Should forge or counterfeit any coin or
5. Foreign armies passing through or stationed currency note of the Philippine Islands or
in its territories with its permission obligations and securities issued by the
Government of the Philippine Islands;

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3. Should be liable for acts connected with the but only insofar as the same are incidental
introduction into these islands of the to ordinary navigation or are rendered
obligations and securities mentioned in the necessary by force majeure or distress or
preceding number; for the purpose of rendering assistance to
4. While being public officers or employees, persons, ships, or aircraft in danger or
should commit an offense in the exercise of distress. Not applicable to airplanes.
their functions; or
5. Should commit any of the crimes against Philippine situation- Philippine
national security and the law of nations, sovereignty extends to the archipelagic
defined in Title One of Book Two of this waters subject to the right of innocent
Code. passage and archipelagic sealanes
and air route passage. Innocent
passage through archipelagic waters may
MARITIME AND FLUVIAL JURISDICTION be suspended by the state but the same
must first be published.
UNCLOS: Principles on maritime jurisdiction
1. Internal waters Archipelagic sealanes- As stipulated in
o Includes rivers, lakes, canals, bays Part IV, Sec. 53, par 12 of UNCLOS,
(mouth‘s width of 24 miles and historical an archipelagic state that fails to define
bays regardless of mouth‘s width), and sea lanes opens itself to archipelagic
gulfs. For archipelagic states their waters passage ―through the routes normally
are all waters inside the baseline. used for international navigation‖. The
absence of clear-cut parameters for what
o Coastal state has absolute jurisdiction. No constitutes ―normal‖ routes complicates
right of innocent passage. territorial enforcement.

o Boundary rivers- Gen. Rule: Question: Who has jurisdiction of a

demarcation of boundary is the agreement crime committed aboard a foreign
of the parties. Exception: if no vessel while traversing territorial
agreement, adopt Thalweg doctrine: it waters?
is the deepest part of the river where the
demarcation of the boundary will be made Gen. Rule: flag state rule will apply.
and not at the center of the river itself.
Exceptions: coastal state law applies
2. Territorial Sea o When the vessel is involve in
o 12 nautical miles from the low water mark psychotropic activities.
or archipelagic baselines.
o General Rule: Full jurisdiction. o When the crime committed disturbs
or has the tendency of disturbing the
Exception: Innocent Passage. peace and security of the coastal
state.
PASSAGE means navigation through the
territorial sea for the purpose of: o When the captain of the ship ask for
1. Traversing that sea without entering the assistance of the coastal state.
internal waters or calling at a
roadstead (used for loading, 3. Contiguous zone- 24 nautical miles from the low
unloading, anchoring) or port facility water mark or archipelagic baselines. Limited
outside; jurisdiction (only for enforcement of Customs,
2. Proceeding to or from internal Immigration, Fiscal, and Sanitation Laws).
waters as a call at such roadstead
or port facility. 4. Exclusive Economic Zone- 200 nautical miles
from low water mark or archipelagic baselines.
INNOCENT PASSAGE – not prejudicial Only for exploitation of natural resources. Coastal
to the peace, good order, or security of state has exclusive jurisdiction.
the coastal state. Passage shall be
continuous and expeditious. However, Rights of other states- In the exclusive
passage includes stopping and anchoring economic zone, all States, whether coastal or
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land-locked, enjoy, subject to the relevant may pursue the offending vessel into the open sea
provisions of this Convention, the freedom of and upon capture bring it back to its territory for
navigation and overflight and of the laying of punishment. To be lawful, the pursuit must be begun
submarine cables and pipelines, and other before the offending vessel has left the territorial
internationally lawful uses of the sea related to waters or the contiguous zone of the coastal state with
these freedoms, such as those associated with the respect to violation of rights enforceable thereon.
operation of ships, aircraft and submarine cables Moreover, the pursuit must be continuous or
and pipelines, and compatible with the other unabated; otherwise, it will be deemed to have
provisions of this Convention. ―cooled‖ and can no longer be resumed.

5. Continental Shelf/ Insular shelf- refers: ILLUSTRATIVE CASE: MV Paula, a cargo ship sailing
a. the seabed and the subsoil of the submarine on the flag of France, while on the high seas collided
areas adjacent to the coast but outside the with MB Athena. Who will have criminal jurisdiction
area of the territorial sea, to a depth of 200 over the person of X, a Filipino national?
meters or, beyond that limit, to where the
depth of the superjacent waters admits of Answer: Art 11 of the Geneva Convention
the exploitation of the natural resources of on the High Seas: In the event of a collision or of
the said areas; and any other incident of navigation concerning a ship on
b. To the seabed and subsoil of similar areas the high seas, involving the penal or disciplinary
adjacent to the coasts of islands. responsibility of the master or of any other person in
the service of the ship, no penal or disciplinary
Rights of the coastal state- allowed to proceeding maybe instituted against such persons
establish on the open seas immediately above the except before the judicial or administrative authorities
installations a safety zone with a radius of 500 either of the flag state or of the state of which
meters over which it may exercise jurisdiction for such person is a national.
the protection of its properties underneath. This
right is exclusive. However, in the Lotus Case, a French steamer and
a Turkish vessel collided in the Aegean Sea, the
Rights of third states- if the coastal state did captain a French national was convicted by Turkish
not explore the continental shelf or exploit its courts. France questioned that turkey has no
natural resources, no one may undertake these jurisdiction.
activities or make a claim to the continental shelf
without the consent of the coastal state. But the ICJ decided that the negligence of the captain
resulted in a damage to both states therefore it is a
6. Open Seas- Are res communes and available for case of concurrent jurisdiction.
the use of all states for purposes of navigation,
flying over them, laying submarine cables or
fishing. AERIAL JURISDICTION- No foreign aircraft, civil or
military, may pass through the aerial domain a state,
No jurisdiction except for universal crimes, and without its consent.
crimes and events on board a ship which fly the
flag of the state claiming jurisdiction. Five Air Freedoms:
1. the freedom to fly across foreign territory
Pirates are enemies of all mankind and may be without landing;
captured on the open seas by the vessels of any state, 2. the freedom to land for non-traffic purposes;
to whose territory they may be brought for trial and 3. the freedom to put down traffic originating in
punishment. the State of the aircraft;
4. the freedom to embark traffic destined for the
Under the laws of neutrality, the public vessels or State of the aircraft;
aircraft of a belligerent state may visit and search any 5. The freedom to embark traffic destined for or to
neutral merchant vessel on the open seas and capture put down traffic originating in a third State.
it if it is found or suspected to be engaged in activities
favorable to the other belligerent. It is the State of registration of the aircraft that
has jurisdiction over offenses and acts
DOCTRINE OF HOT PURSUIT- If an offense is committed on board while it is in flight or over
committed by a foreign merchant vessel within the the high seas or any other area outside the
territorial waters of the coastal state; its own vessels territory of any state.
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o Agreation- by means of which informal

No other state may exercise jurisdiction over inquiries are addressed to the receiving state
such aircraft except when: regarding a proposed diplomatic representative
1. the offense has effect on the territory of such of the sending state. It is only when the
state; receiving state manifests its agrément or
2. the offense has been committed by or against a consent, also informally, that the diplomatic
national or permanent resident of such state; representative is appointed and formally
3. the offense is against the security of such state; accredited.
4. the offense consists of a breach of any rules or
regulations relating to the flight or maneuver of Rationale: To avoid diplomatic faux pas
aircraft in force in such state; [diplomatic embarrassment] [French ito kaya
5. The exercise of jurisdiction is necessary to pronounce pas without ‗s‘].
ensure the observance of any obligation of such
state under a multilateral international
agreement. DIPLOMATS

DIPLOMATS-Ito ang kulay blue ang plate

number ng sasakyan sa Pinas!
RIGHT TO LEGATION
o The right to send and receive diplomatic Diplomatic Envoys refers to-
representatives. 1. Ambassadors or nuncios accredited to
heads of state.
Active Right of Legation- the right to send envoys 2. Envoys, ministers or internuncios
or establish diplomatic mission accredited to heads of state.
3. Chargés d‘affaires accredited to ministers
Passive Right of Legation- the right to receive such for foreign affairs.
envoys or missions.
The diplomatic corps is a body consisting of
Diplomatic relations are normally conducted through the different diplomatic representatives who
the head of state, the foreign secretary or minister have been accredited to the same local or
and the members of the diplomatic service. receiving state. It is headed by a doyen du
corps, who, by tradition, is the oldest member
The head is the embodiment of or at least represents with the highest rank or, in Catholic countries,
the sovereignty of his state. He is entitled to certain the Papal Nuncio. The appointment of
immunities and honors befitting his status. diplomats is not merely a matter of municipal
law because the receiving state is not obliged
The foreign secretary is the immediate representative to accept any representative who is persona
of the head of state and directly under his control as non grata to it.
such, he can make binding declarations on behalf of
his state on any matter falling within his authority The envoy is generally armed with the following
(e.g. recognition of states or governments and the papers which they should show to Philippine
settlement of international claims against the state). Authorities:
1. A Letter of Credence (lettre de creance) -
Note: this gives the name of the representative, his
o The appointment of diplomats is not merely a rank, the character and general object of his
matter of municipal law because the receiving mission; it also contains a request for favorable
state is not obliged to accept any representative reception and full credence; it is sealed, but the
who is persona non-grata to it. ambassador is furnished several carbon copies
(or photocopies thereof).
o Persona non grata- in International Law and
diplomatic usage, a person not acceptable (for 2. A Diplomatic Passport (this authorizes his
reasons peculiar to himself) to the court or travel and describes both his person and his
government to, which it is proposed to accredit office);
him in the character of an ambassador or
minister. 3. Instructions- special diplomatic agents receive
a document of general full powers (pleins

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pouvoirs) with authority to negotiate on of diplomatic immunity is recognized and

extraordinary or special business; affirmed by the executive branch of the
government, it is then the duty of the courts to
4. Cipher/Code/ Secret Key- (for accept the claim of immunity upon appropriate
communication with his country). suggestion by the principal law officer of the
government [World Health organization vs.
Aquino,48 SCRA 242].
DIPLOMATIC FUNCTIONS:
1. Representing the sending state in the receiving DIPLOMATIC IMMUNITIES AND PRIVILEGES
state. 1. Personal Inviolability- the person of a
2. Protecting in the receiving state the interests of diplomatic agent shall be inviolable. He shall not
the sending state and its nationals. be liable to any form of arrest or detention. The
3. Negotiating with the government of the receiving state shall treat him with due respect
receiving state. and shall take all appropriate steps to prevent
4. Ascertaining by all lawful means conditions and any attack on his person, freedom or dignity.
developments in the receiving state and
reporting thereon to the government of the 2. Immunity from jurisdiction of receiving
sending state. state- the Diplomatic Convention provides: ―A
5. Promoting friendly relations between the diplomatic agent shall enjoy immunity from the
sending and receiving states and developing criminal jurisdiction of the receiving state. He
their economic, cultural and scientific relations. shall also enjoy immunity from its civil and
administrative jurisdiction, except in the case
Diplomatic Immunity- The customary international of:
law granting immunity in favor of diplomatic persons a. a real action relating to private
to uphold their dignity and to allow the free and immovable property situated in the
unhampered exercise of their functions [Vienna territory of the receiving state, unless he
Convention on Diplomatic Relations]. holds it on behalf of the sending state for
the purposes of the mission;
Diplomatic Immunity Diplomatic Protection
It is the immunity of It is the protection given b. an action relating to succession in
diplomats from the by a state to its citizens which the diplomatic agent is involved as
jurisdiction of the living or sojourning in executor, administrator, heir or legatee
receiving state. another state. as a private person and not on behalf of
the sending state;
Diplomatic Protocols- The totality of norms and
rules which determine the external forms of relations c. An action relating to any professional
between states, of diplomatic intercourse; it is a or commercial activity exercised by
political instrument of diplomacy and creates a the diplomatic agent in the receiving
framework within which diplomatic activities are state outside of his official functions.
realized.
Note:
Who recognizes diplomatic immunity? The o Under our Constitution, it is the
President. President who is empowered to appoint
ambassadors, other public ministers and
Principle of Suggestion consuls, subject to the consent of the
o If the president recognizes the diplomatic Commission on Appointments.
immunity of an alien and he communicates the
same to the court, the court should follow by o Immunity from jurisdiction may be
dismissing cases filed against the diplomat, if waived expressly or impliedly.
any. However for the waiver to be valid it
must be clear and must be made by the
o It is a recognized principle of international law highest official of the organization.
and under our system of separation of powers
that diplomatic immunity is essentially a o However, waiver of immunity from
political question and courts should refuse to jurisdiction in respect of civil or
look beyond a determination by the executive administrative proceedings shall not be
branch of the government, and where the plea held to imply waiver of immunity in
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respect of the execution of the

judgment, for which a separate waiver NO. The Philippines cannot have jurisdiction over his
shall be necessary. person because of diplomatic immunity.
However the Philippines may declare him as persona
3. Inviolability of Diplomatic Premises non grata and shall communicate the same to the
state of Thailand. If Thailand will not act on the matter
4. Inviolability of Archives within a reasonable time, the Philippines may arrest
the ambassador as an ordinary alien.
5. Inviolability of Communication-even the
diplomatic courier carrying the diplomatic bag Or the Philippines may just opt to dismiss the
shall be protected by the receiving state in the diplomat. The diplomat is asked to return to his own
performance of his functions. state.

6. Exemption from Testimonial Duties The erring diplomat maybe prosecuted in his own
state if the crime he committed is punishable under its
laws.
7. Exemption from taxation- the diplomatic
envoy is also exempt from taxes, customs Situation #2: Santiago Wakas, a Filipino citizen went
duties, and other dues, subject to the exception to Thailand for a vacation. He was ganged up and was
listed in the Diplomatic Convention and as well beaten to death by Thai nationals. The Thai
as from social security requirements under government did not do anything to help Santiago
certain conditions. His personal baggage is also either by arresting the culprits or others methods.
free from inspection unless there are serious What is the remedy of the Philippines to express its
grounds for presuming that it contains articles displeasure to the incidence?
not exempt from customs duties or not
admissible into the receiving state. Recall the Ambassador or the Philippines to Thailand.
And if matters come to worst, close the Philippine
8. Other Privileges embassy in Thailand.
a. Freedom of movement and travel in the
territory of receiving state.
b. Exemption from personal services, public CONSULS
services and from military obligation.
c. The right to use the flag and emblem of o They are State agents residing abroad for various
the sending state on the premises of the purposes but mainly in the interest of commerce
mission. and navigation.

TERMINATION OF DIPLOMATIC MISSION: o They have limited immunity compared to

Usual methods: diplomats because their immunity is usually
1. Death covered by a treaty.
2. Resignation
3. Removal 2 Kinds of Consuls:
4. Abolition of the office, etc. 1. Consules missi- professional or career consuls
who are nationals of the appointing state and
Under International Law, the more important modes are required to devote their full time to the
are recall and dismissal. discharge of their consular duties.

Note: The severance of diplomatic relations shall not 2. Consules electi- they may or may not be
ipso facto involve the severance of consular relations nationals of the appointing state and perform
and vice versa. their consular functions only in addition to their
regular callings.
Illustrative Case:
Heads of consular posts are classified according
Situation #1: Santiago Wakas, an ambassador of to importance into:
Thailand to the Philippines committed the crime of 1. consul-general
rape while in the Philippines. Can the Philippines have 2. consul
jurisdiction over his person? What are the remedies 3. vice-consul
available to the Philippines? 4. consular agent
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1. removal
Consuls derive their authority from 2 principal 2. resignation
sources: 3. death
1. Letter Patent or lettre de provision – the 4. expiration of the term
commission issued by the sending state. 5. outbreak of war between the sending and
2. Exeqautor-the authority given to them by the receiving state
receiving state to exercise their duties therein. 6. withdrawal of the exequatur

FUNCTIONS OF CONSULS: In the event of war, the consulate is closed and the
1. Promote the commercial interests of their archives are sealed and left in the custody of a
country in the receiving state and to observe caretaker, usually a consul from a neutral state. The
commercial trends and developments therein for consul from the belligerent state is allowed to depart
report to their home government. for his own country as soon as possible and w/o
unnecessary molestation.
2. They also perform duties relating to navigation,
such as visiting and inspecting vessels of their
own states which may be in the consular district, Question: If a consul of Thailand to the
exercising a measure of supervision over such Philippines committed a crime in the Philippines
vessels, adjusting matters pertaining to their can he be prosecuted? Answer: It depends,
internal order and discipline, as well as visiting o If the crime was committed while discharging
and inspecting foreign vessels destined for a his duties. If it is, he is immune from the
port of the sending state. jurisdiction of the receiving state.

3. Consuls are also empowered to issue passports o If it was committed not in relation to his
to nationals of the sending state, & to issue function he can be prosecuted. However he
documents relating to entry into and travel cannot be arrested and detained if the crime
within the territory of the sending state, and to committed is not a serious offense. This is so
visa invoices and certificates of origin of goods because he has duties to perform such as giving
destined for the territory of that state, and to passports.
visa invoices and certificates of origin of goods
destined for the territory of that state. ILLUSTRATIVE CASE:
Liang vs. People, Jan 28, 2000
4. It is likewise the responsibility of consuls to look
after the interests of fellow nationals and to Facts: Liang is a representative of the Asian
extend them official assistance whenever Development Bank to the Philippines. The said
needed. organization is accorded sovereign immunity which
extends to its officials as long as the erring official
CONSUL‟S IMMUNITIES AND PRIVILIGES: committed the acts in the discharge of his duties.
1. Consuls have a right to official communication. Liang defamed his co-employee. He was sued.

2. Consuls also enjoy inviolability of their archives. Issue: WON Liang is immune from prosecution.

3. Consuls are exempt from the local jurisdiction Held: No! To defame is not one of the duties of Liang.
for crimes committed by them in the discharge As such, he can be prosecuted. The immunity
of their official functions. But with regard to accorded to him pursuant to the treaty are acts done
other offenses, they are fully subject to the local in the performance if his duty.
law and may be arrested, prosecuted and
punished in proper proceedings. ASYLUM
o The ―right of asylum‖ is the authority of a State
4. Civil suits may be instituted against consuls in to allow an alien who has sought refuge from
their personal or private capacity but not in prosecution or persecution to remain within the
matters connected with their official duties. territory and under its protection.
o It covers political or religious offenses.
5. Consuls are also generally exempted from
taxation, customs duties, service in the militia, There are two (2) species of asylum:
and social security rules. 1. Territorial asylum- refuge within the territory
Termination of Consular Mission: of the sheltering state; the protection which a
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refugee obtains by escaping to, or remaining 3. A fugitive who is extradited may be tried only
upon, the territory of a State other that the for the crime specified in the request for
state that ―wants‖ him, until the protection is extradition and such crime is included in the list
terminated by his extradition. of extraditable offenses in the treaty [Principle
of Specialty].
2. Exterritorial asylum- asylum in what are
considered the ―extensions‖ of a state‘s o Exception: Principle of Double
jurisdiction. This includes: Criminality- the crime though not listed in
a. asylum in foreign public ships; the treaty is punishable by both states.
b. Diplomatic asylum- the protection afforded
by a State to a refugee by granting him an Note:
asylum in or upon its diplomatic buildings o The extradition of a person is required only if
within the territory of the State that wants there is a treaty between the state of refuge and
him. the state of origin. In the absence of such a
treaty, the local state has every right to grant
The doctrine on asylum may be summarized in asylum to the fugitive and to refuse to deliver
the following manner: him back to the latter state even if he is its
1. With reference to territorial asylum the right of a national.
state to grant asylum within its territory exists
only when it is so stipulated in a treaty or when o The crime of genocide consists of any of the
it is justified by established usage. Of course, following acts, committed with intent to destroy,
should a state rely on its ―territorial supremacy‖ in whole or in part, a national, ethnical, racial or
it can always justify the grant. religious group as such:
1. Killing members of the group.
2. With reference to diplomatic asylum- asylum 2. Causing serious bodily or mental
may be granted only if- Requisites: harm members of the group.
A. there is a treaty granting this right; 3. Deliberately inflicting on the group
B. established usage allows it but this conditions of life calculated to bring
should be confined ―within its narrowest about its physical destruction in
limits‖ whole or in part.
C. When the life, person, or liberty of the 4. Imposing measures intended to
individual seeking is threatened by prevent births within the group.
imminent violence; it is understood that 5. Forcibly transferring children of the
asylum should be temporary and should group to another group.
exist only for the duration of the
emergency. Extradition contra Deportation
Extradition Deportation
EXTRADITION 1. Effected at the 1. Unilateral act of the
o Is the surrender of a person by one state to request of the state local state
another state where he is wanted for of nation 2. Based on causes in
prosecution or, if already convicted for 2. It is based on the local state.
punishment. offense generally 3. An undesirable alien
committed in the may be deported to
o It covers common crimes. state of origin. a state other than
3. Calls for the return his own or the state
Requisites of Extradition: of the fugitive to the of origin.
1. There must be an extradition treaty. state of origin.
2. The crime committed must not be a political
offense.
o Exception: presence of Attentant PROCEDURE OF EXTRADITION:
Clause [French kaya pronounce it without 1. Request through diplomatic representative.
the ‗nt‘] in the extradition treaty- 2. DFA forwards the request to the DOJ.
assassination of head of states or any 3. DOJ files petition for extradition with the RTC.
member of his family is not regarded as 4. RTC issues summons or warrant of arrest to
political offense for purposes of extradition. compel the appearance of the individual.
Also for the crime of genocide. 5. Hearing (provide counsel de officio if necessary).

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6. Appeal to the CA within 10 days whose decision PART V: TREATIES

shall be final and executory.
7. Decision forwarded to DFA through the DOJ. Treaty- A formal agreement, usually but not
8. Individual placed at the disposal of the necessarily in writing, which is entered into by states
authorities of requesting state- costs and or entities possessing the treaty-making capacity, for
expenses be shouldered by requesting state. the purpose of regulating their mutual relations under
the law of nations.
ILLUSTRATIVE CASE:
Gov‟t of US vs. Purganan, September 24, 2002 Executive Agreement- Is not a treaty insofar as the
Facts: By virtue of an extradition treaty between the concurrence thereto of the Senate is not required
US and the Philippines, the US requested for the under our Constitution.
extradition of Mark Jimenez for violations of US tax
and election laws. During the proceeding, Jimenez Note: the distinction is purely municipal and has no
invokes his constitutional due process and his right to international significance. From the viewpoint of
bail. international law, ―treatise and executive
agreements are alike in that both constitute
Issue: Won bail as a matter of right and due process equally binding obligations upon the nation.
shall be observed in extradition proceedings.
VARIOUS APPELLATIONS GIVEN TO
Held: NO! Bail is not allowed because the extraditee is “TREATIES”:
a flight risk. There is a great possibility of flight after 1. Pact – a special treaty which is formally
bail. However as an EXCEPTION bail is allowed if: (1) sentimental;
that, once granted bail, the applicant will not be a 2. Convention– this is more or less an informal
flight risk or a danger to the community; and (2) that treaty dealing with specific subjects: sometimes
there exist special, humanitarian and compelling it does not even require ratification.
circumstances including, as a matter of reciprocity, 3. ―Agreement‖/ ―Arrangement‖/ ―Accord‖ –
those cited by the highest court in the requesting state conventions on administrative or technical
when it grants provisional liberty in extradition cases matters;
therein. 4. ―Concordats‖ – agreement entered into by the
Pope (as head of the church) with various chiefs
DUE PROCESS: Contrary to his contention, his of States;
detention prior to the conclusion of the extradition 5. Declarations – these are formal reciprocal
proceedings does not amount to a violation of his right agreements which may deal with:
to due process. We iterate the familiar doctrine that a) the rights and privileges of the national
the essence of due process is the opportunity to be of a state;
heard but, at the same time, point out that the b) principles in accordance with which
doctrine does not always call for a prior opportunity to states propose to act or
be heard. Where the circumstances -- such as those c) Grounds for mutual action on the part of
present in an extradition case -- call for it, a states.
subsequent opportunity to be heard is enough. In the 6. Protocol – this may refer either to a
present case, respondent will be given full opportunity supplemental treaty or to an amendment to a
to be heard subsequently, when the extradition court treaty
hears the Petition for Extradition. Hence, there is no
violation of his right to due process and fundamental FUNCTION OF TREATIES
fairness. 1. Treaties enable parties to settle finally actual
and potential conflicts.
By nature then, extradition proceedings are not 2. Treaties make it possible for the parties to
equivalent to a criminal case in which guilt or modify the rules of international customary law
innocence is determined. Consequently, an extradition by means of optional principles or standards.
case is not one in which the constitutional rights of the 3. They may lead to a transformation of
accused are necessarily available. It is more akin, if at unorganized international society into one which
all, to a court‘s request to police authorities for the may be organized on any chosen level of social
arrest of the accused who is at large or has escaped integration.
detention or jumped bail. Having once escaped the 4. They frequently provide the humus for the
jurisdiction of the requesting state, the reasonable growth of international customary law.
prima facie presumption is that the person would
escape again if given the opportunity.
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ESSENTIAL REQUISITES OF A VALID TREATY allowed by its term to sign it later by a process
To be valid, a treaty must: known as accession.
1. be entered into by parties with the treaty –
making capacity; Instances when Third States may be validly
2. through their authorized representatives; Held to the Observance of or Benefit from the
3. without the attendance of duress, fraud, mistake Provisions of a Treaty where it is not a member
or other vice of consent; 1. The treaty may be merely a formal expression of
4. on any lawful subject – matter; customary international law which, as such, is
5. in accordance with their respective constitutional enforceable on all civilized states because of
processes their membership in the family of nations.

The Constitution of the Philippines authorizes the 2. Under Art. 2 of the UN Charter ―The
President to make treaties, subject to the concurrence organization shall ensure that non-member
of two-thirds of all the members of the Senate. States act in accordance with the principles of
the Charter so far as may be necessary for the
TREATY – MAKING PROCESS maintenance of international peace and
1. Negotiation - it is a standard practice for one security.‖
of the parties to submit a draft of the proposed
treaty, which, together with the counter – 3. The treaty itself may expressly extend its
proposals, becomes the basis of the subsequent benefits to non-signatory states.
negotiations.
RULE ON OBSERVANCE OF TREATIES
2. If and when the negotiators finally agree on the
terms of the treaty, the same is opened for General Rule: Pacta sunt servanda –
signature. performance in good faith of treaty obligations

3. Ratification - is the formal act by which a state Exception: Rebus sic stantibus– the doctrine
confirms and accepts the provisions of a treaty constitutes an attempt to formulate a legal principle
concluded by its representatives. which would justify non-performance of a treaty
obligation if the conditions with relation to which the
 An unratified treaty cannot be a source parties contracted have changed so materially and so
of obligations between the parties. unexpectedly as to create a situation in which the
exaction of performance would be unreasonable.
4. Exchange of the instruments of ratification
or deposit with the government of one of the Requisites of rebus sic stantibus:
contracting parties or with an organ of an 1. it applies only to treaties of indefinite duration;
international organization. 2. the vital change must have been unforeseen or
unforeseeable and should not have been caused
5. Registration with and publication by the by the party invoking the doctrine;
Secretariat of the United Nations. 3. the doctrine must be invoked within a
reasonable time; and
Under Art. 102 of the UN Charter, a treaty not 4. It cannot operate retroactively upon the
registered with the Secretariat, by which it shall provisions of the treaty already executed prior to
be published, cannot be invoked before any the change of circumstances.
organ of the UN. Nevertheless, the treaty does not
cease to be binding between the parties and may be
the basis of litigation before some other arbitral or INTERPRETATION OF TREATIES
judicial body not connected with the UN. (Vienna Convention Section 3)

General Rule of Interpretation (Art. 31):

BINDING EFFECT OF TREATIES 1. A treaty shall be interpreted in good faith in
o As a rule, a treaty is binding only on the accordance with the ordinary meaning to be
contracting parties, including not only the given to the terms of the treaty in their context
original signatories but also other states which, and in the light of its object and purpose.
although they may not have participated in the
negotiation of the agreements, have been

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2. The context for the purpose of the interpretation 4. By loss of the subject-matter.
of a treaty shall comprise, in addition to the
text, including preamble and annexes: 5. By desistance of the parties, through express
o Any agreement relating to the treaty mutual consent; desuetude, or the exercise of
which was made between all the parties the right of denunciation (or withdrawal), when
in connection with the conclusion of the allowed.
treaty.
o Any instrument which was made by one 6. By novation.
or more parties in connection with the
conclusion of the treaty and accepted by 7. By extinction of one of the parties if the
the other parties as an instrument related treaty is bipartite.
to the party.
8. By vital change of circumstance under the
3. There shall be taken into account, together with doctrine of rebus sic stantibus.
the context:
o Any subsequent agreement between the 9. By outbreak of war between the parties in most
parties regarding the interpretation of the cases, except if the treaty was intended to
treaty or the application of its provision. regulate the conduct of the signatories during
o Any subsequent practice in the the hostilities, or to cede territory, or to fix
application of the treaty which boundaries. As held in Techt v. Hudges,
establishes the agreement of the parties provisions of a treaty compatible with a state of
regarding its interpretation. hostilities, unless expressly terminated, will be
o Any relevant rules of international law enforced, and those incompatible rejected.
applicable in the relations between the
parties. 10. By voidance of the treaty because of defects in
4. A special meaning shall be given to a term if its its conclusion, violation of its provisions by one
established that the parties so intended. of the parties, or incompatibility with
international law or the U.N. Charter.

SUPPLEMENTARY MEANS OF INTERPRETATION Illustrative case: The constitutionality of the VFA

(ART. 32) was upheld in Bayan vs. Zamora, as it complied with
the three requirements of Sec. 25, Art. XVII of the
Recourse may be had to supplementary means of constitution- (a) there must be a treaty, (b) concurred
interpretation including the preparatory work of the by the senate, (c) recognized as a treaty by other
treaty and the circumstances of its conclusion, in order contracting state. The third requirement was met
to confirm the meaning resulting from the application notwithstanding that there was no concurrence by the
of article 31, or to determine the meaning when the US senate as in a case of a treaty. For as long as the
interpretation according to Art. 31: US accepts or acknowledges the VFA as a treaty, and
 Leaves the meaning ambiguous or obscure; or binds itself further to comply with its obligation under
 Leads to result which is manifestly absurd or a treaty there is marked compliance with the mandate
unreasonable. of the constitution. The distinction between a treaty
and executive agreement is only for the purpose of
Note: Article 32 is not an alternative recourse in the determining compliance with internal rules. In
interpretation of a treaty; rather it must be taken in international law, an executive agreement is as
relation to Article 31. binding as a treaty.

TERMINATION OF TREATIES
PART VI: NATIONALITY, TREATMENT OF
A treaty may be terminated in any of the following ALIENS, STATELESSNESS
ways:
1. By expiration of the term, which may be Nationality
fixed or subject to a resolutory condition. o membership in a political community with all its
concomitant rights and obligations
2. By accomplishment of the purpose.
o An individual acquires the nationality of the state
3. By Impossibility of performance. where he is born jure soli or the nationality of
his parents‘-jure sanguinis.
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DOCTRINE OF STATE RESPONSIBILITY/

Hague Convention of 1930 on the Conflict of IMPUTABILITY/ INTERNATIONAL
Nationality Laws: DELINQUENCY

Art. 1 – It is for each state to determine under its Under this doctrine, a state may be held responsible
laws who are its nationals. for:
1. an international delinquency
Art. 5 – Within a third state, a person having more 2. Directly or indirectly imputable to it.
than one nationality shall be treated as if he had 3. Which causes injury to the national of another
only one. state. Liability will attach to the state where its
treatment of the alien falls below the
Naturalization- Is a process by which a foreigner international standard of justice. Or where it is
acquires, voluntarily or by operation of law, the remiss in according him the protection or
nationality of another state. redresses that is warranted by the
circumstances.
Loss of Nationality
A. Voluntary: TYPES OF STATE RESPONSIBILITY
1. renunciation 1. Direct Responsibility- Attaches to the state if
2. request for release the wrongful act/omission was effected through
B. Involuntary: any of its superior organs acting on its behalf.
1. forfeiture as a result of some
disqualification or prohibited act like 2. Indirect Responsibility- Acts of the following
enlistment in a foreign army are attributable to the state:
2. substitution of one nationality for another o State organs
following a change of sovereignty
o Other persons exercising elements of
Statelessness governmental authority in the absence or
o Is the condition or status of an individual who is default of the official authorities and in
born without any nationality or who loses his circumstances calling for the exercise of
nationality without retaining or acquiring those elements of authority.
another.
o Insurrectional or other movement which
o A stateless individual is, from the traditional becomes the new government.
viewpoint, powerless to assert any right that
otherwise would be available to him under Note: In case of injuries inflicted upon a foreigner in
international law where he is a national of a the course of quelling rebellion, state responsibility
particular state. Any wrong suffered by him will attach only if the rebellion succeeds and the rebels
through the act of omission of a state would be will take control of the state, but not when the
damnum absque injuria for in theory no legitimate government remains in power as the act of
other state had been offended and no quelling rebellion is a valid exercise of defense. State
international delinquency committed as a result liability will attach only if it fails to observe the
of the damage caused upon him. minimum international standard for the protection of
aliens.
o It was in view of this difficulty that the Hague
Convention of 1930 adopted rules to avoid Instances of International Delinquency
the condition of statelessness and all its o Violation of a treaty
attendant inconveniences. Briefly stated, these o Denial of the injured alien to access the court
rules would condition loss of nationality by o The state where the injury happened did not
an individual upon his retention or institute measures to prevent the incident.
acquisition of another nationality, whether o The state concerned did not investigate the
such loss be by expatriation, incident.
naturalization as to the wife and minor
children or adoption. Principle of Diplomatic Protection- The state has
the obligation to protect its nationals even though they
are abroad.

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International Standard of Justice particular case, and manifestly such citizen cannot by
o The standard of the reasonable state, that is, as contract tie in this respect the hands of his
referring to the ordinary to the ordinary norms government.
of official conduct observed in civilized
jurisdictions.
PART VII: INTERNATIONAL POSTLOMINIUM
o But even assuming the liability of the state for
an international delinquency, its enforcement WAR
cannot be claimed by the injured foreigner o Armed contention between the public forces of
unless he first exhausts all available local states or other belligerent communities, implying
remedies for the protection or vindication of his the employment of violence among the parties
rights. as a means of enforcing their respective
demands upon each other.
Deportation- Removal of an alien out of country,
simply because his presence is deemed inconsistent o War may also exist even without the use of
with the public welfare, and without any punishment force as when a state formally refuses to be
being imposed or contemplated either under the laws governed by the laws of peace in its relations
of the country out of which he is sent, or under those with another state even if actual hostilities have
of the country to which he is taken. not taken place between them.

Exclusion– denial of entry to an alien War is outlawed. In only two instances is the
used of force allowed, to wit:
Enforcement of Claim- An international claim for 1. In the exercise of the inherent right of self-
damages may be resolved through: defense;
1. negotiation 2. Enforcement action that may be decreed by the
2. good offices Security Council.
3. arbritation
4. judicial settlement Commencement of War- The Hague Convention
5. war of 1907 provide that hostilities ―must not commence
without a previous and explicit warning, in the form
Such reparation may take the form of: either of a reasoned declaration of war or of an
1. restitution ultimatum with conditional declaration. War is
2. satisfaction or compensation supposed to commence on the date specified in the
3. restoration or replacement of the object of the declaration or on the date it is communicated to the
offense enemy.
4. formal apology by the delinquent state
5. payment of damages
EFFECTS of War
Calvo Clause– this is a stipulation by which the alien 1) The laws of peace cease to regulate the
waives or restricts his right to appeal to his own state relations of the belligerents and are superseded
in connection with any claim arising from the contract by the laws of war. Third states are governed by
and agrees to limit himself to the remedies available the laws of neutrality in their dealings with the
under the laws of the local state belligerents.

2) Diplomatic and consular relations between the

Q: under the rules of international law, may an, belligerents are terminated and their respective
alien lawfully make such a promise (as is representatives are allowed to return to their
embodied in the Calvo clause)? own countries.
o Principle of Internment- Nationals of
A: The Commission holds that he may, but at the the enemy state is quartered if they were
same time holds that he cannot deprive the not allowed to return to the mother state.
government of his nation of its undoubted right of
applying international remedies to violations of 3) Treatise of a political nature, such as treaties of
international law committed to his damage. Such alliance are automatically cancelled, but those
government frequently has a larger interest in which are precisely intended to operate during
maintaining the principles of international law than in war are activated. Multipartite treatise dealing
recovering damage for one of its citizens in a with technical or administrative matters, like
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postal conventions, are deemed merely 4. The officers and crew of merchant vessels who
suspended as between the belligerents. forcibly resist attack.

4) Individuals are impressed with enemy character: Note:

a. under the nationality test, if they are o When captured, combatants are entitled to
nationals of the other belligerent, wherever treatment as POWs, which includes inter alia the
they may be; rights to be accorded the proper respect
b. under the domiciliary test, if they are commensurate with their rank, to adequate food
domiciled aliens in the territory of the other and clothing, to safe and sanitary quarters, to
belligerent, on the assumption that they medical assistance, to refuse to give military
contribute to its economic resources; information or render military service against
c. Under the activities test, if, being their own state, and to communicate with their
foreigners, they nevertheless participate in families.
the hostilities in favor of the other
belligerent. o Non-combatants do not enjoy identical rights
when captured but are nevertheless protected
5) Enemy public property found in the territory of from inhumane treatment.
the other belligerent at the outbreak of
hostilities is, with certain exceptions, subject to THREE (3) BASIC PRINCIPLES UNDERLYING
confiscation. Enemy private property may be THE RULES OF WARFARE
sequestered, subject to return, reimbursement
or other disposition after the war in accordance 1. Principle of military necessity- under this
with the treaty of peace. principle, the belligerents may, subject to the
other two principles infra, employ any amount
Who are Combatants? and kind of force to compel the complete
1. Are those engage directly in the hostilities while submission of the enemy with the least possible
non-combatants are those who do not. loss of lives, time and money.

2. Only the non-combatants may lawfully wage war 2. Principle of humanity- prohibits the use of
and are thus subject to direct attack from the any measure that is not absolutely necessary for
enemy. the purposes of the war, such as the poisoning
of wells and weapons, the employment of
THE FOLLOWING ARE REGARDED AS dumdum or expanding bullets and asphyxiating
COMBATANTS: gases, the destruction of works of art and
1. The members of the armed forces, whether property devoted to religious or humanitarian
pertaining to the army, the navy or the air force. purposes, the bombarding of undefended places
and attack of hospital ships.
2. The irregular forces, such as the francs tireurs
or guerillas, provided, that: 3. Principle of Chivalry – is the basis of such
a. they are commanded by a person rules as those that require the belligerents to
responsible for his subordinates; give proper warning before launching a
b. they wear a fixed distinctive sign bombardment. Ruses and stratagems of war are
recognizable at a distance; allowed provided they do not involve the
c. they carry arms openly; and employment of treacherous methods, such as
d. They conduct their operations in the illegal use of Red Cross emblems to throw
accordance with the laws and customs of the enemy off guard prior to an attack.
war.
Theatre of War- the place where the hostilities are
3. The inhabitants of unoccupied territory who, on actually conducted, as distinguished from the
approach of the enemy, spontaneously take
arms to resist the invading troops without Region of War- Which is the greater area where the
having had time to organize themselves, provide belligerents may lawfully engaged each other. This
only that they carry arms openly and observe would comprise their own territories and the open
the laws and customs of war. This is often seas, excluding only neutral territories.
referred to as a levee en masse.

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Note: License to Trade- a permission given by the

o Belligerent occupation does not result in competent authority to individuals to carry on trade
transfer or suspension of the sovereignty of the even though there is a state of war.
legitimate government although it may be at the
moment unable to exercise it. Suspension of Arms- a temporary cessation of the
hostilities by agreement of the local commanders for
o Private property of municipalities and of such purposes as gathering of the wounded and the
institutions dedicated to religion, charity and burial of the dead.
education, and the arts and sciences, even when
state-owned, shall be treated as private Armistice- the suspension of all hostilities within a
property, and their destruction is expressly certain area (local) or in the entire region of the war
forbidden. (general) agreed upon by the belligerent
governments, usually for the purpose of arranging the
Jus Postliminium- Imports the reinstatement of the terms of the peace.
authority of the displaced government once control of
the enemy is lost over the territory affected. Armistice contra Suspension of Arms
Suspension of
Armistice
Uti Possiditis- Imports the control of a belligerent Arms
over the territory of its enemy which it acquired during 1. The purpose is
the war. 1. the purpose is political
military
2. may be concluded by the 2. May be agreed
Status Qou Ante Bellum- Imports the restoration of commanders-in-chief of the upon by the local
the condition of both belligerent states before the war. belligerent governments commanders
3. it is usually in writing 3. it may be oral
DEFINITION OF TERMS:
Cease Fire- an unconditional stoppage of hostilities
A Flag of Truce- is a white flag carried by an by order of an international body like the UN Security
individual authorized by one belligerent to enter into Council for the purpose of employing peaceful means
communications with the other. The bearer, or of settling the differences between the belligerents.
parlementaire, is entitled to inviolability as long as he
does not take advantage of his privileged position to Truce- sometimes used interchangeably with
commit an act of treachery. However, the other armistice but is now generally regarded as a cease-fire
belligerent is not obliged to receive o flag of truce. with conditions attached.

Cartels- are agreements to regulate intercourse Capitulation- the surrender of military forces, places
during war on such matters as postal and telegraphic or districts in accordance with the rules of military
communication, the reception of flags of truce, and honor.
the exchange of prisoners. A cartel ship is a vessel
sailing under a safe-conduct for the purpose of
carrying exchanged prisoners of war (POWs). CRIMES UNDER INTERNATIONAL LAW
[Excerpt from Principles of the Nuremberg Charter and
Passport- a written permission given by the Judgment]
belligerent government or its authorized agent to the
subjects of the enemy state to travel generally in a. Crimes against peace.
belligerent territory. i. planning, preparation, initiation or waging
of a war of aggression or a war in violation
Safe-conduct- a pass given to an enemy subject or of international treaties, agreements or
to an enemy vessel allowing passage between defined assurances;
points. This is given either by the belligerent
government or by the commander of the area within ii. Participation in a common plan or
which it is effective. conspiracy for the accomplishment of any
of the acts mentioned under (i).
Safeguard- a protection granted by a commanding b. War Crimes (e.g. ill-treatment of POWs, plunder
officer either to enemy persons or property within its of private or public property)
command.
c. Crimes against humanity (e.g. persecution on
political, racial or religious grounds)
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o The jurisdiction of the International Court of

Note: Complicity in the commission of a crime against Justice is not general or obligatory; its
peace, a war crime, or a crime against humanity is a competence to act is dependent on the consent
crime under International law. of the parties involved.

Questions: Are mercenaries entitled to be treated as Amicable methods of Settling Disputes:

POW when captured by enemy state? (GIN MAC JR.)
1. good offices
Answer: No because they do not belong to the armed 2. inquiry
forces of the belligerent state but they conduct their 3. negotiation
activities for personal economic gain. 4. mediation
5. arbitration
Question: A, B, C, former Filipino generals are having 6. conciliation
their vacation in Bosnia when it was invaded by 7. judicial settlement
Germany. They assisted the armed forces of Bosnia by 8. resort to regional and international
providing combat strategies. In return they are paid organizations
good amount of money. There were captured by
German troops. Are the entitled to the rights of POW? Except for negotiation, they all
involve the participation of a third
Answer: No! They are not member of the armed party, such as a state or a
forces of Bosnia but are mercenaries. They are not prestigious statesman or jurist.
nationals of Bosnia nor domiciliary to the same.
Negotiation– the discussion undertaken by the
NOTE: spies if captured are not accorded the rights of parties themselves of their respective claims and
a POW unless they belong to the armed forces of the counterclaims with a view to their just and orderly
enemy state. adjustment.

Inquiry – an investigation of the points in question,

PART VIII: PACIFIC SETTLEMENT OF DISPUTES on the theory that their elucidation will contribute to
the solution of the differences between the parties.
International Dispute- An actual disagreement The findings of the party making the inquiry are not
between states regarding the conduct to be taken by conclusive upon the disputing states but they
one of them for the protection or vindication of the nevertheless may exert a strong moral influence in the
interests of the other state. settlement of the conflict.

Good Offices – a method by which a third party

Sitaution– initial stage of a dispute attempts to bring the disputing states together in
order to enable them to discuss the issues in
A dispute is legal if it involves justiciable rights based contention and arrive at an agreement
on law or fact susceptible of adjudication by a judicial
or arbitral tribunal. Mediation – a third party does not merely provide
the opportunity for the antagonists to negotiate but
It is political if it cannot be decided by legal also actively participates in their discussions in order
processes on the basis of the substantive rules of to reconcile their conflicting claims and appease their
international law because the differences of the parties feelings of resentment. The suggestions of the
spring from animosities in their mutual attitudes rather mediator are merely persuasive, however, and may be
than antagonism of legal rights. The solution to such a rejected without offense by the parties to the dispute.
dispute lies not in the councils of the courts but in the
corridors of diplomacy. Concilaition– calls for the active participation of a
third party in the attempt of the disputant to settle
Note: their conflict, and the recommendations made by it
o Disputes are required to be settled, conformably are likewise not binding. But unlike in mediation, the
to one of the basic principles of the UN, by services of the conciliation are not offered by the third
peaceful means in such manners that party but solicited by the parties in dispute.
international peace and security, and justice, are
not endangered. Arbitration– the solution of a dispute by an impartial
third party, usually a tribunal created by the parties
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themselves. The proceedings are essentially judicial Reprisals- are arts of self-help on the part of the
and the award is, by previous agreement, binding on injured state, responding after an unsatisfied demand
the parties to the dispute. to an act contrary to international law on the part of
the offending state. (e.g. display of force, occupation
Judicial settlement- substantially similar to of territory, embargo and pacific blockade)
arbitration. However, arbitration and judicial
settlement differ in the following points Embargo- detention by the state seeking redress of
the vessels of the offending state or its nationals,
Arbitration Judicial Settlement whether such vessels are formed in the territory of the
1. The arbitral tribunal 1. The judicial tribunal former or the high seas.
is an ad hoc body is generally
created and filled speaking, a pre- THE SECURITY COUNCIL SHALL HAVE
by the parties to existing and JURISDICTION TO INTERVENE IN: All disputes
the dispute permanent body. affecting international peace and security all dispute
themselves. 2. Jurisdiction is which, although coming under the ―domestic
2. Submission to compulsory jurisdiction clause‖, have been submitted to it by
arbitration is 3. The law applied by the parties for settlement. Such disputes may be
voluntary the tribunal is brought to it by:
3. In substitution independent of the 1. The Security Council itself, on its own motion.
proceedings the will of the Parties. 2. The General Assembly
law may be limited 3. The Secretary-General
by the parties. 4. Any member of the UN
5. Any party to the dispute, provided that in the
case of non-members of the UN, they should
Another peaceful method of settling disputes is accept in advance, for the purpose of the
action by regional organizations, which may be dispute, the obligations of pacific settlement
resorted to by the parties on their own volition or under the charter.
taken by the body itself at its own instance if allowed
by agreement of the members. UNITING FOR PEACE RESOLUTION (1950)- it
provides that if the Security Council, because of lack of
Art. 52 of the UN Charter, regional unanimity of the permanent members, fails to exercise
arrangements or agencies may be established its primary responsibility for the maintenance of peace
to maintain international peace (thru regional and security in any case where there appears to be
action and to peacefully settle local disputes threat to the peace, breach of peace, or act of
before referring them to the Security Council. aggression, the General Assembly shall consider the
Their activities ought to be reported to the matter immediately.
Council. Parenthetically, it should be noted that
the existence of these agencies will NOT
prevent the Security Council from itself PART IX: NEUTRALITY
investigating and setting these disputes.
A state is said to be neutral if it does not take part,
directly or indirectly, in a war between other states.
HOSTILE METHODS:
1. retorsions Neutrality contra Neutralization
2. reprisals Neutrality Neutralization
3. intervention 1. Dependent solely on 1. It is the result of a
the attitude of the treaty wherein the
Retrosion– any action taken in retaliation where the neutral state, which duration and other
acts complaint of do not constitute a legal ground of is free to join any conditions of the
offense but are rather in the nature of unfriendly acts belligerent any time neutralization
but indirectly hurtful to other states. The act of it sees fit. conditions are
retaliation is also unfriendly but not illegal and may be 2. Neutrality is agreed upon by the
in kind or of a different nature than the act that governed by the neutralized state and
provoked it. general law of other powers.
E.g. severance of diplomatic or consular nations. 2. The agreement
relations 3. Neutrality obtains governs the conduct
only during war. of the signatories.
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4. Only states may 3. It is intended to provisions, or stress of weather. The vessel

become neutral. operate in time. must leave as soon as it has been re-
4. Portions of states. provisioned; it can take only so much fuel or
Like islands, rivers, supplies as it will need until it reaches the
and canals. May be nearest of its own parts.
neutralized.
6. Repairs should be permitted so long as they are
RELATIONS OF BELLIGERENT STATES AND not intended to increase the fighting force of the
NEUTRAL STATES: vessel. Neutral states are free to allow their
1. A neutral state has the right and duty to abstain nationals to deal, in their private capacity, with
from taking part in the hostilities and from any of the belligerents. International law
giving assistance to either belligerent; considers the relationship [in the absence of
special rules imposing upon the neutral state the
2. to prevent its territory and other resources from duty of intervening in the transaction] as strictly
being used in the conduct of hostilities by the between the individual and the belligerent states
belligerents; and whatever hardships may be suffered by its
nationals as a result thereof must, as a rule, be
3. to acquiesce in certain restriction and limitations acquiesced in the neutral state.
that the belligerents may find necessary to
impose, especially in connection with Belligerent warships and aircraft have the right to visit
international commerce; and search neutral merchant vessels on the high seas
for the purpose of determining whether they are in
4. The belligerents, on the other hand, are bound any way connected with the hostilities. These vessels
to respect the status of the neutral state, may be captured as prize if 1) they are liable
avoiding any act that will directly or indirectly engaged in hostile activities; 2) if they resist
involve it in their conflict, and to submit to any visit and search; or 3. if there is reasonable
lawful measures it may take to maintain or suspicion that they are liable to confiscation.
protect its neutrality.
Prize is not confiscated summarily but must be
brought to a prize court for adjudication.
General Rule: War activities by or on behalf of any of
the belligerents may not be undertaken in the territory TREATMENT OF SEA-BORNE GOODS IN TIME OF
of the neutral state without infringement of its WAR
neutrality. Neutral territory is inviolable. [Declaration of Paris of 1856]

Exceptions: 1. Enemy goods under a neutral flag are not subject

1. passage of sick and wounded troops is allowed to capture, except contraband of war.
through a neutral state provided personnel and
materials of war are not also carried; 2. Neutral goods under an enemy flag are not
subject to capture, except contraband of war.
2. persons bound for enlistment in the belligerent
armies may cross the neutral frontiers if they do o Contraband- the term applied to goods
so individually or separately and not as a body; which, although neutral property, may be
seized by a belligerent because they are
3. The neutral state itself may give refuge to useful for war and are bound for a hostile
troops from the belligerent forces but must destination.
intern them as far as possible, at a distance
from the theater of war; o Doctrine of Ultimate Consumption-
goods intended for civilian use which may
4. Escaped prisoners of war need not be detained ultimately find their way to and be
by the neutral state but must be assigned a consumed by the belligerent forces are also
place of residence if they are allowed to remain; liable to seizure on the way.

o Contraband are subject to condemnation. If

5. Warships belonging to belligerents may enter they are shipped together with innocent
neutral ports, harbors and roadsteads only in goods belonging to the same owner, the
cases of unseaworthiness, lack of fuel or
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latter may also be confiscated under the

doctrine of infection. 3. established by the proper authorities
of the belligerent government,
As for the disposition of the vessel carrying generally the head of state;
the contraband, some states consider it
confiscable if the contraband are more than 4. limited only to the territory of the
½ of the total cargo by weight, value, enemy and not extended to neutral
freight or volume. places or international rivers; and

o Absolute Contraband-consists of articles 5. Impartially applied to all states alike.

of war (arms, munitions) destined for
belligerent territory. The liability of a neutral vessel to
capture for breach of blockade is
o Conditional/Relative Contraband- contingent on its knowledge, actual or
consists of materials useful both in war and presumptive, of the blockade and
in peace (food, clothing) and is destined for continues as long as it is pursued by
the military authorities of the belligerent the ships of the blockading force after
territory. Under the doctrine of usus it has left or tried to enter the
anticipitis, articles of ambiguous use may blockaded port.
sometimes be regarded as contraband if
used for war purposes. A vessel found guilty of breach of
blockade is liable to condemnation,
o ―Free List‖- includes goods useful for war and so is the cargo unless it is proved
and bound for the belligerents but exempted that at the time it was shipped the
from the law on contraband for owner neither knew nor could have
humanitarian reasons (medicines, medical known of the intention to violate the
supplies). blockade.

o Under the Doctrine of Ultimate Unneutral Service- consists of acts, of a more

Destination, the liability of contraband to hostile character than carriage of contraband or
capture is determined not by their ostensible breach of blockade, which are undertaken by
but by their real destination. merchant vessels of a neutral state in aid of any of the
belligerents.
This doctrine is called the doctrine of
continuous voyage when the goods are According to the Declaration of London, and as
reloaded at the intermediate port on the generally accepted, a neutral vessel is liable to
SAME vessel and the doctrine of condemnation for unneutral service:
continuous transport when they are 1. if it is making a voyage special with a view to
reloaded on ANOTHER vessel or other form the transport of individual passengers who are
of transportation. embodied in the armed forces of the enemy or
with a view to the transmission of information in
o Blockade- is a hostile operation by means the interest of the enemy;
of which the vessels and aircraft of one
belligerent prevent all other vessels, 2. If with the knowledge of the owner, or the one
including those of neutral states, from who charters the entire vessel,or of the master,
entering or leaving the ports or coasts of the it is transporting a military detachment of the
other belligerent, the purpose being to shut enemy or one or more persons who, during the
off the place from international commerce voyage, lend direct assistance to the operations
and communication with other states. of the enemy. The cargo, if belonging to the
owner of the vessels, is likewise confiscable.
To be valid, a blockade must be:
1. binding, i.e., duly communicated to A neutral vessel is also liable to condemnation
the neutral states; and to be treated as a merchant vessel of the
2. effective, meaning that it is enemy:
maintained by adequate force so as to 1. if it takes a direct part of the hostilities;
make ingress to or egress from the 2. if it is under the orders or control of an agent
port dangerous; placed on board by the enemy government;
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3. it is chartered entirely by the enemy While some authorities are of the opinion that the
government; or same purpose can be achieved through the exercise of
4. If it is at the time and exclusively either the right of eminent domain, it is claimed that
devoted to the transport of enemy troops or expropriation cannot be exercised over property that is
the transmission of information in the interest only temporarily and usually over the owner‘s
of the enemy. objection, under the control of the belligerent.
Moreover, the expropriated property is never taken for
Angary- By the right of angary, a belligerent may, the purpose of destroying it.
upon payment of just compensation, seize, use or
destroy, in case of urgent necessity for purposes of TERMINATION OF NEUTRALITY
offense or defense, neutral property found in its 1. when the neutral state itself joins the war;
territory, in enemy territory, or on the high seas. 2. Upon the conclusion of peace.

As will be noted, the exercise of the right is In the first case, the hitherto neutral state will be
conditioned upon three requisites, to wit: governed by the laws of war in its relations with the
1. that the property is in the territory under the other belligerents and by the laws of neutrality in its
control or jurisdiction of the belligerent; relations with all other states; and in the second, all
2. that there is urgent necessity for the taking; and states will again be governed by the laws of peace.
3. That just compensation is paid to the owner.

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This article is an offshoot of the incident which happened on April 23 2004, where a member of the
Panamanian diplomatic envoy to the Philippines allegedly forced a Filipina to sniff a drug causing her to
be unconscious and thereafter, raped her in his apartment. The issue is whether or not Erick Schcks
Bairnals, a technical officer of the Panama Maritime Authority, enjoys protection under the 1961 Vienna
Convention.

RAPE!
Rev. Fr. Ranhilio Callagan Aquino

A Panamian diplomat, it has been alleged, raped a Filipina — and in the aftermath of that
dastardly incident, international law has been ―raped‖ by irate but hardly informed legislators, each with
his or her own version of diplomatic immunity. We did not invent diplomatic immunity. States, for
centuries, have always recognized that immunities attend the representatives of other States and history
records the fact that breach of these immunities has, in several cases, been ―casus belli‖ —a cause of a
war. The proposition advanced by one female senator was therefore not accurate: that diplomatic
immunities only go so far as to allow a diplomat to perform his or her duties. The privilege of liberty
from arrest, apprehension, prosecution and trial also have to do with the very dignity of the entity
represented by a diplomat —an elite in the world-stage (where elite is a matter neither of wealth nor of
size but of international juridical personality)!
The present law on diplomatic immunity is the Vienna Convention on Diplomatic Relations. In
fact, it did not create the law. In many respects, it only codified customary international law. The
immunity of diplomats has long been part of general international law, or international common law. In
respect to diplomats, the immunity from criminal jurisdiction is absolute: no ifs, no buts. All the rhetoric
then about rape never being part of one‘s official functions and therefore lying beyond the shield of
immunity should be reserved for sophomoric declamation contests. That simply is not the law. An
ambassador is a diplomat, but one need not be an ambassador to be a diplomat. The determination of
diplomatic status is a matter that, by constitutional allocation of powers, belongs to the Executive, since it
is the latter that conducts foreign relations in behalf of the Republic of the Philippines. However, in
Liang v. People of the Philippines (2001), the Supreme Court maintained that Executive
determinations did not necessarily preclude courts from inquiring into the status of one who pleads his
diplomatic immunity as an exempting circumstance. It is for the person who claims immunity to prove it,
and for the courts to examine the proof. But it is one thing to demand proof of immunity, and it is quite
another to misstate the law, no matter that done so with unction and fervor! In fact, the same full
immunity from criminal jurisdiction can rightly be claimed by members of the administrative and technical
staff of a diplomatic mission!
Some who spoke first and researched later must have mixed up the rules on diplomatic immunity
with the immunities of agents representing international organizations: the International Red Cross, the
World Health Organization or even such entities as the World Bank and the Asian Development
Bank. Most of the time, the scope of immunity will be the result of treaty provisions. (International law
provides for treaties between States and international organizations.) In their regard, immunity is
―functional‖, meaning principally that the breadth of immunity is determined by the functions they
perform—and only to that extent.
So, what happens when a diplomat goes berserk and hurts and maims indiscriminately? Such
restraint as may be necessary to prevent him from visiting more harm and injury may, as dictated by
reason, be used on him. However, this should not result in detention or apprehension. And amid
demands of militants that the diplomat concerned waive his immunity, it will be well to remind the
delirious mob that diplomatic immunity, enjoyed not for the diplomat‘s sake, but for the sake of the State
he represents, can be waived only by the sending State. It cannot be presumed; it must be express, and
a waiver of immunity from prosecution is a different thing from a waiver of immunity from the execution
of whatever penalty may be imposed.
Things have turned out as they should—the Philippines has declared the person concerned
―persona non grata‖ (unacceptable, we are not happy [non grata] to have him), which is a diplomatic-
speak for ―shoo, shoo!‖ The sending State then has the obligation to recall him or risk his apprehension
by Philippine authorities after the government declares that it no longer recognizes his diplomatic status.
Rape is always a terrible crime, but ignorance displayed in high places is despicable, indeed!

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