Eneral Rinciples: Political Law

Political Law
G ENERAL P RINCIPLES
Remedies in case of breach:
1. Cessation of the internationally wrongful act;
Public International Law 2. Performance of the obligation of reparation in the
This deals with the conduct of States and international interest of the state, entity or individual which is
organizations, their relations with each other and, in specially affected by the breach;
certain circumstances, their relations with persons, natural 3. Restitution must be effected unless materially
or juridical. (American Third Restatement). impossible(Id., Art. 2)
Private International Law (Conflict of Laws) The body of B. JUS COGENS

rules of the domestic law of a State that is applicable A norm accepted and recognized by the international
when a legal issue contains a foreign element, and it has community of states as a rule from which no derogation is
to be decided whether a domestic rule should apply permitted and can be modified only by a subsequent norm
foreign law or relinquish jurisdiction to a foreign court. having the same character e.g. unlawful use of force,
(Aust, Handbook on International Law, 2010, p.1). genocide, slave trading and piracy (Article 53,Vienna
Convention on the Law of Treaties).
Three main schools of International Law
1. Natural Law School – based on rules of conduct Three groups of jus cogens norms:
discoverable by every individual in his own conscience a. Maxims of International Law which protect the
and through application of right reasons. (Lynch, foundations of law, peace and humanity in the
Human Rights, Environment and Economic international order and which at present are considered
Development: Existing and Emerging Standards in by nations as the minimum standard for their mutual
International Law and Global Society). relations;
2. Positivist School – holds that norms are valid only b. Rules of peaceful cooperation in the sphere of
insofar as they have been created according to a International Law which protects fundamental common
definite and discernible rule. (Id.) interests;
3. Eclectic or Groatian School – a compromise between c. Protection of humanity, especially of the most essential
the first two schools and submits that international law human rights.
is binding partly because it is good and right and partly (Sarmiento, Public International Law Bar Reviewer, p. 14)
because states agreed to be bound by it. (Id.)
Jus cogens v. jus dispositivum
CONCEPTS IN INTERNATIONAL LAW Jus cogens Jus dispositivum
As to binding power
A. OBLIGATIONS ERGA OMNES
It literally means towards all; those which seek to protect known as peremptory law subject to the
and promote basic values and common interests of all norm / compelling law dispensation of the parties
states. As to nature
duties which every norms of Customary
They refer to those obligations of a State towards the state owes to the International Law founded on
international community as a whole which are ‘the international self-interest of participating
concern of all States’ and for whose protection all States community states
have a ‘legal interest’ (Barcelona Traction Case (Belgium Whether subject to waiver
v Spain) ICJ Rep 1970 3 [Feb 5]). rules are absolutely waivable; binds only those
binding on all states in states consenting to be
Effect of a breach of an obligation under a multilateral the world at all times governed by it
treaty: As to effect of non-compliance
An obligation under a multilateral treaty that a State Party
to the treaty owes in any given case to all the other States inter se agreements nothing, in principle, precludes
Parties to the same treaty, in view of their common values derogating from states from acting in disregard
and concern for compliance, so that a breach of that peremptory norms are of ordinary norms of
obligation enables all these States to take action prohibited and are null international law, provided
(Obligations and Rights Erga Omnes in International Law, and void and to the extent that the
Resolution of the Institute de Droit International, Fifth constituent instrument
Commission, Krakow Session, August 27, 2005, Art.1). evidences the intention of
member states to act in such
manner while exercising its G. INTERNATIONAL COMITY
functions, but if a relevant This refers to rules of politeness, convenience and
norm is peremptory, states goodwill observed by States in their mutual intercourse
cannot derogate from it without being legally bound by them. Neighborliness,
mutual respect and friendly waiver of technicalities are
As to the changes of the rules involved and the practice is exemplified by the exemption
can be modified only of diplomatic envoys from custom duties. (Brownlie,
capable of being modified by
by a subsequent norm Principles of Public International Law 1998, p. 29)
contrary, consensual, legal
having the same
agreements such as by treaty
character
I NTERNATIONAL AND N ATIONAL
Note: If a new peremptory norm of general international
law emerges, any existing treaty which is in conflict with
L AW
that norm becomes void and terminates. (Article
64,Vienna Convention on the Law of Treaties)
International law v. municipal law
C. EX AEQUO ET BONO International Law Municipal Law
This literally means "according to the right and good" or As to nature
"from equity and conscience." Law of coordination Law of subordination
(consent) (issued by political
Article 38(2) of the Statute of the International Court of superior)
Justice provides that the list of sources in Article 38(1)
As to applicability
shall not prejudice the power of the court to decide cases
Regulates relation of Regulates relations of
ex aequo bono, but only et where the parties agree
states and other individuals among
thereto.
international persons themselves or with their
own states
Note: As illustrated in the North Sea Continental Shelf
As to composition
Cases (ICJ Reports, 1969), the ICJ resorted to principles
concerning the formulations of just and equitable Derived principally from Consists mainly of
principles concerning the dispute over a certain treaties, international statutory enactments, and
continental shelf, when the court opined no treaty or customs and general to a lesser extent
custom bound the state-parties to the dispute. principles of law executive orders and
judicial pronouncements
D. HARD LAW As to remedy
This refers to binding international legal norms or those Resolved through state- Redressed through local
which have coercive character, e.g. provisions of the UN to-state transactions administrative and judicial
Charter, Vienna Convention on Diplomatic Relations, processes
Geneva Conventions of 1949. (Sarmiento, Public As to entity held responsible
International Law Bar Reviewer, p.4) Collective responsibility Breach of which entails
because it attaches individual responsibility
E. SOFT LAW directly to the state and
This are guidelines of conduct which are neither strictly not to its nationals
binding norms of law, nor completely irrelevant political
maxims, and operate in a grey zone between law and Two theoretical approaches to the relationship between
politics,e.g. declarations of international organizations. international law and national law (Nachura, Outline
(Malanczuk, Akekurt’s Modern Introduction to Reviewer in Political Law, 2009 ed., p. 646):
International Law 1997, p. 54). DIFFERENCE
Monism Dualism
It is not law but its importance within the general There is no substantial International law and
framework of international legal development is such that distinction between national law are
particular attention requires to be paid to it, e.g. international law and independent of each other
resolutions of the UN General Assembly and draft articles municipal law. It supposes and both systems are
of International Law Commission. (Shaw, International that international law and regarded as mutually
Law 2008, p 117) national law are simply two exclusive and
San Beda College of Law
2010 Centralized Bar Operations
components of a single independent. They exist and shall become valid and effective upon the
body called “law’. “side by side within concurrence of 2/3 of all members of the Senate
different spheres of action (Sarmiento, Public International Law Bar Reviewer, 2009,
– the international plane p. 36).
and the domestic plane.”
Criteria to resolve conflict between International Law and
Two theories as to manner of adopting international law Municipal Law
as part of the law of the local state: Basic Rule: Attempt to reconcile apparent contradiction
1. Doctrine of Incorporation — international laws are and thereby give effect if possible to both systems of law.
adopted as part of a state’s municipal law, by a Presume that municipal law is always enacted by each
general provision or clause usually in its Constitution. state with due regard for and never in defiance of the
(Sec. 2, Art. II, 1987 Constitution). generally accepted principles of international law.
Military Commission created by EO No. 68 has If the conflict cannot be resolved, the following rules shall
jurisdiction to try a member of the Japanese Imperial apply:
Army for violations of the Hague and Geneva 1. On the domestic sphere, with a local court deciding:
Conventions on the Laws of War even though the a. International Law v. Constitution – uphold the
Philippines is not a signatory to these conventions. Constitution. The SC has the power to declare a
The legality and constitutionality of the acts of the treaty or executive agreement unconstitutional
Military Commission is based on Art. 2, Sec. 3 of the (Sec. 5(2)(a), Art. VIII, Philippine Constitution).
Constitution which states that “the Philippines adopts
the generally accepted principles of international law b. Constitution v. Treaty
as part of the law of the nation”. (Kuroda v. Jalandoni, Generally: The treaty is rejected in the local
G.R. No. L-2662, March 26, 1949) forum but is upheld by international tribunals as a
demandable obligation of the signatories under
2. Doctrine of Transformation — requires the enactment the maxim pacta sunt servanda.
by the legislative body of such international law
principles as are sought to be part of municipal law. The treaty is always subject to qualification or
(Coquia and Defensor, International Law and World amendment by a subsequent law, and the same
Organizations, 2005, pp. 13-14) may never curtail or restrict the scope of the
police power of the State. (Ichong v. Hernandez,
Types of Transformation Doctrines: G.R. No.L-7995, May 31, 1957).
a. Hard Transformation – it holds that only
legislation can transform International Law into c. International Law v. Local Statute –The doctrine
domestic law. Courts may apply International of incorporation decrees that rules of
Law only where authorized by legislation international law are given equal standing with,
but are not superior to, national legislative
b. Soft Transformation – holds either a judicial or enactments. (Philip Morris, Inc v. Court of
legislative act of a State can transform Appeals, 224 SCRA 576, 593 [1993])
International Law into domestic law. (Sarmiento,
Public International Law Bar, Reviewer, 2009, Principle of lex posterior derogate priori – that
p.36) which comes last in time will usually be upheld
by the municipal tribunal. (Aust, Modern Treaty
Note: The Philippines applies both theories. Following the Law and Practice 2nd Edition, pp. 248–249)
doctrine of incorporation embodied under Sec. 2, Art. II of
the 1987 Constitution, the Philippines “adopts the 2. On the international sphere, with an international
generally accepted principles of international law as part tribunal deciding: International law is superior to
of the law of the land.” However, all other forms of municipal law, because international law provides the
international law i.e. treaties, executive agreements, etc. standard by which to determine the legality of a
require some other positive act form the government. State’s conduct (Paras, International Law and World
Politics, p. 23).
The transformations theory is applied in the Philippines
through the treaty-making power of the President.
Through this power, rules and principles embodied in a
treaty in force would be transformed into Philippine law
3
The sources of international law are provided, by publicists or writers, but also includes entities such as
implication under Art. 38 Statute of the International Court the International Law Commission (ILC) which was
of Justice which provides that: established by the UN to encourage the progressive
development of international law and its codification.
“The Court, whose function is to decide in accordance (UN Charter, Art 12(1)(a))
with international law such disputes as are submitted to it,
shall apply international conventions, international custom, Non-applicability of Stare Decisis
general principles of law, judicial decisions and the ICJ is not bound by the doctrine of stare decisis. The
teachings of highly qualified publicists.” decisions of the Court have no binding force except
between the parties and in respect of that particular
1. International conventions, whether general or case. (ICJ Stature, Article 59)
particular, establishing rules expressly recognized by
the contesting states; Nonetheless, the Court does look to prior holdings as
a. Lawmaking treaty (traite-loi) being highly persuasive. (Sarmiento, Public
International Law Bar Reviewer,p. 32)
b. Contract treaty (traite-contract) – e.g. Vienna
Convention on the Law of Treaties, Hague
Convention C USTOMARY I NTERNATIONAL
2. International custom, as evidence of a general L AWS
practice accepted as law;
Customary International Law
Elements: This consists of rules of law derived from the consistent
a. State Practice, conduct of States acting out of the belief that the law
b. Opinio Juris required them to act that way (Aust, Handbook of
(S.S. Lotus [France. v. Turkey], 1927 P.C.I.J. (ser. A) International Law, 2nd ed., 2010, p. 6).
No. 10, Sept. 7, 1927)
ICJ has been constant in stating that a customary rule
3. General principles of law recognized by civilized requires the presence of the two elements the two (2)
nations; elements: (S.S. Lotus [France. v. Turkey], 1927 P.C.I.J.
Concepts from domestic law if they can be applied to (ser. A) No. 10, Sept. 7, 1927)
relations between States, and by this means, have
developed international law by filling gaps and 1. State Practice (Objective) - there must first be
strengthening weak points, ) e.g. pacta sunt evidence of substantial uniformity of practice by a
servanda, res judicata, due process, estoppel, substantial number of States (Aust, Handbook on
prescription.(Aust, Handbook on International Law, International Law 2010,p. 6 ).
2010, p.8
2. Opinion jurisS UBJECTS OF I NTERNATIONAL
sive necessitates - this is the
4. Judicial decisions and the teachings of the most psychological factor, the beliefL AW by a state that
highly qualified publicists of the various nations, as behaved in a certain way that it was under a legal
subsidiary means for the determination of rules of obligation to act that way; states will behave a certain
law. way because they are convinced it is binding upon
them to do so (Shaw, International Law 2008, p. 84).
Highly-qualified publicists are writers whose main
value depends on the extent to which the books and Note: No particular duration is required. However, a
articles cited are works of scholarship, that is to say, passage of time will be part of evidence of generality
based on thorough research into what the law is said and consistency of the practice. (e.g. prohibition
to be (lex lata) rather than comparing the views of against genocide, torture, slavery, crimes against
other writers as to what they think the law ought to be humanity)
(lex ferenda). (Aust, Handbook on International Law, (Case Concerning the Continental Shelf; Libyan Arab
2010) e.g. Hugo Grotius, Vaughan Lowe, Lawrence Jamahiriya v Malta) (Judgment) [1985] ICJ Reports
Oppenheim, Hersch Lauterpact, Hans Kelsen, Ian 13 at 29)
Brownlie, Malcolm N. Shaw
Instant Custom (Diritto Spontaneo)
Note: “Reference to the “teachings of the most highly A binding rule established by the spontaneous activity of a
qualified publicists” is not limited to individual great number of states and need not be observed for a
S OURCES
considerable period. (Malanczuk, Akehurst’s Modern and obligations

under that law
Introduction to International Law. 1997 p.45) assumed by the subject
Applicability of international law
Persistent Objector Rule
Has international
A State, which has persistently objected to the status as
personality that it can Not directly governed
custom of a particular practice in the process of evolving
directly assert rights by the rules of
into a custom, is not bound by that customary rule.
and can be held international law
‘Evidence of objection must be clear and there is probably
responsible under the
a presumption of acceptance [of the status of the practice
law of nations
as custom which is to be rebutted. Whatever the
theoretical underpinnings of the principle, it is well Participation in international transactions
recognized by international tribunals, and in the practice of It can be a proper party
states’ (North Sea Continental Shelf Cases 1969 ICJ Rep Its rights are received
in transactions involving
3). and its responsibilities
the application of the
imposed indirectly
law of nations among
Notes: through the
members of
The main evidence of customary law is found in the actual instrumentality of an
international
practice of states, and a rough idea of a state’s practice intermediate agency
communities
can be gathered from published material (news reports, (Nachura, Outline Reviewer in Political Law, 2009 ed., p.
government statements, press and conferences), and 646)
from the state’s laws and judicial decisions. (Malanczuk,
Akehurst’s Modern Introduction to International Law. 1997 A. STATE – It is an entity that has a defined territory and
p.39) permanent population, under the control of its own
government, and engages in, or has the capacity to
The classical formulation in international law sees those engage in, formal relations with other such entities.
customary rules accepted as binding result from the (Art. 1, Montevideo Convention)
combination of two elements: the established, Elements:
widespread, and consistent practice on the part of States; 1. Permanent Population
and a psychological element known as the opinion juris 2. Defined Territory
sive necessitates (opinion as to law or necessity). Implicit 3. Government
in the latter element is a belief that the practice in question 4. Capacity to enter into relations with other States
is rendered obligatory by the existence of a rule of law (Art. 1, Montevideo Convention).
requiring it (Razon v. Tagitis, G.R. No. 182498, December
3, 2009). Classifications:
1. Independent – has
Entity that has rights and responsibilities under freedom to direct and control foreign relations
international law and having the capacity to maintain its without restraint from other states.
rights by bringing international claims includes: a. Simple
1. States; b. Composite
2. Colonies and dependencies; i. Rea
3. Mandates and trust territories; l Union – two or more states merged
4. Belligerent communities; under a unified authority so that they form
5. International administrative bodies; and a single international person through
6. The United Nations; which they act as one entity
7. The Vatican and the Holy See; and ii. Fed
8. Individuals, to a certain extent eral Union – combination of two or more
(Nachura, Outline Reviewer in Political Law, 2009 states resulting in the creation of a new
ed., p. 646). state with full international personality
Subject v. Object 2. Dependent – an entity

Subject Object which, although theoretically a state, does not
Existence of rights and obligations under have full freedom in the direction of its external
international law affairs.
Entity that has rights Person/thing in respect
and responsibilities of which rights are held
5
a. Protectorate person except only that its lawful representative is
– established at the request of the weaker changed (Nachura, Outline Reviewer in Political Law,
state for the protection by a strong power 2009 ed., p. 649).
b. Suzerainty – .
the result of a concession from a state to a B. COLONIES AND DEPENDENCIES
former colony that is allowed to be From the viewpoint of international law, they are
independent subject to the retention by the considered as part and parcel of the parent state, through
foreign sovereign of certain powers over the which all its external relations are transacted with other
external affairs of the latter. states.
3. Neutralized – It has no legal standing in the family of nations.

independence and integrity are guaranteed in an Nevertheless, such entities have been allowed on
international treaty on the condition that such state occasion to participate in their own right in international
obligates itself never to take up arms against any undertakings and granted practically the status of a
other state, or to enter into an international sovereign state. It is when acting in this capacity that
obligation as would indirectly involve it in war colony and dependencies are considered international
persons.
Principle of State Continuity
The principles states that a State’s identity as an Colony
international legal person persists notwithstanding It is a dependent political community consisting of a
unconstitutional or even violent changes in its number of citizens of the same country who have
government. As a result, a state generally continues migrated therefrom to inhabit in another country, but
to owe and accrue international legal obligations remain subject to the mother state (Nachura, Outline
notwithstanding such changes (Currie, Public Reviewer in Political Law, 2009 ed., p. 651).
International Law, 2nd ed).
Succession of States Dependency
This takes place when one state assumes the rights It is a territory distinct from the country in which the
and some of the obligations of another state because supreme sovereign power resides but belongs rightfully to
of certain changes in the condition of the latter. it, and subject to the laws and regulations which the
1. Universal Succession – a state is annexed to sovereign may prescribe (Nachura, Outline Reviewer in
another state, or is totally dismembered or Political Law, 2009 ed., p. 651).
merges with another state to form a new state. C.MANDATES AND TRUST TERRITORIES
International personality of the former state is These are non-self-governing territories which have been
completely absorbed by the successor. placed under international supervision to insure their
(Nachura, Outline Reviewer in Political Law, political, economic, social and educational advancement.
2009 ed., p. 649)
Kinds of Trust Territories
2. Partial Succession – takes place when a portion 1. Those held under the mandate of the League of
of the territory of a state secedes or is ceded to Nations
another, or when an independent state becomes 2. Territories detached from the defeated states
a protectorate or suzerainty, or when a after World War II
dependent state acquires full sovereignty. (Id.) 3. Those voluntarily placed under the system by the
states responsible for their administration
Consequences of State Succession
The consequences are: political laws are abrogated while D. BELLIGERENT COMMUNITY
municipal laws remain in force; treaties are discontinued, A group of rebels under an organized civil government
except those dealing with local rights and duties, such as who have taken up arms against the legitimate
those establishing easements and servitudes; all rights of government. When recognized, it is considered as a
the predecessor state are inherited (Nachura, Outline separate state for purposes of conflict and entitled to all
Reviewer in Political Law, 2009 ed., p. 649). the rights and subjected to all the obligations of a full-
pledged belligerent under the laws of war.
Succession of Governments
Where one government replaces another either peacefully Belligerent occupation effects no change in sovereignty,
or by violent means, the integrity of the state is not but the exercise of the powers of sovereignty is
affected; the state continues as the same international suspended. Political laws, except the law on treason,
are suspended; municipal laws remain in force (Laurel not individuals. This limitation of the personal sphere of
v. Misa, 77 Phil 856). validity constitutes, according to the doctrine, an essential
characteristic of international law. Individuals are
E. INTERNATIONAL ORGANIZATIONS considered merely as objects, not subjects of international
Refer to public or intergovernmental organizations, in law (Nachura, Outline Reviewer in Political Law, 2009,
contrast to private or non-governmental organizations p.656).
such as Amnesty International or the Red Cross
(Sarmiento, Public International Law Bar Reviewer, 2009, Opposing View
p.152). The statement that a States are subjects of international
They are typically: law means that individual human beings are indirectly and
1. Institutions established by a treaty collectively, in their capacity as organs of the State,
2. Composed of members that are states or subjects of the obligations, responsibilities and rights of
international organizations the State (Coquia, International Law, p. 80).
3. Regulated by International Law; and
4. Endowed with a legal personality and thus
generally can engage in contracts, and can sue R ECOGNITION
and be sued in national courts subject to certain
immunities It is an act by which a state acknowledges the existence
of another state, government or belligerent community
F. INTERNATIONAL ADMINISTRATIVE BODIES and indicates its willingness to deal with the entity as such
International Administrative Bodies are certain under the rules of international law (Nachura, Outline
administrative bodies created by agreement among states Reviewer in Political Law, 2009 ed., p. 647).
which may be vested with international personality when
two conditions concur: First, their purposes are mainly Theories on Recognition
non-political, and second, they are autonomous and not 1. Declaratory (majority view) — merely affirms an
subject to the control of any state e.g. International Labor existing fact like the possession by the state of the
Organization (ILO), Food and Agriculture Organization essential elements. Discretionary and political;
(FAO), World Health Organization (WHO) (Southeast 2. Constitutive (minority view) — it is the act of
Asian Fisheries Development Center v. Acosta G.R. Nos. recognition that constitutes the entity into an
97468-70 September 2, 1993). international person. Compulsory and legal; may be
G. UNITED NATIONS compelled once the elements of a state are
Although not a state or a super-state but a mere established (Nachura, Outline Reviewer in Political
organization of states, it is regarded as an international Law, 2009 ed., p. 647).
person for certain purposes.
Basic rules in recognition of States
H. THE VATICAN AND THE HOLY SEE 1. It is a political act and mainly a matter of policy on the
Inasmuch as the Pope prefers to conduct foreign relations part of each state;
and enter into transactions as the Holy See and not in the 2. It is discretionary on the part of the recognizing
name of the Vatican City, one can conclude that in the authority; and
Pope's own view, it is the Holy See that is the 3. It is exercised by the political (executive) department
international person. (Holy See v. Rosario, G.R. No. of the state (Nachura, Outline Reviewer in Political
101949, December 1, 1994) Law, 2009 ed., p. 647).
The Republic of the Philippines has accorded the Holy Kinds of recognition
See the status of a foreign sovereign. The Holy See, Recognition may either be express or implied. It may also
through its Ambassador, the Papal Nuncio, has had be de facto or de jure (Nachura, Outline Reviewer in
diplomatic representations with the Philippine government Political Law, 2009 ed., p. 648).
since 1957. This appears to be the universal practice in
international relations. (Id.) Recognition de jure v. Recognition de facto
Recognition Recognition
I. INDIVIDUALS De Jure De Facto
Traditional Doctrine As to duration of recognition
Only States, not individuals are subjects of international
law. According to this doctrine, the norms of international Relatively permanent Provisional
law impose obligations and responsibilities upon States (duration of armed
7
struggle)
As to effect of recognition on ownership of 3. Belligerent community – rebels are accorded
properties international personality only in connection with the
Vests title to Does NOT vest title to hostilities they are waging.
properties of properties of
government abroad government abroad Conditions for Recognition of Belligerency: (OSCW)
As to effect of recognition in relation to other a. Organized civil government;
states b. Rebels occupy a substantial portion of territory;
Brings about full Limited to certain c. Conflict is serious and outcome is uncertain;
diplomatic relations juridical relations d. Rebels are willing to observe the laws of war.
(Nachura, Outline Reviewer in Political Law, 2009 ed., p. Absence of one element means state of
648). insurgency.
Requisites for recognition of government: Effects of Recognition of Belligerency:

1. Government is stable and effective; a. Responsibility for acts of rebels resulting to injury
2. No substantial resistance to its authority; to nationals of recognizing state shall be shifted
3. The government must show willingness and ability to to rebel government;
discharge its international obligations; and b. The legitimate government recognizing the rebels
4. The government must enjoy popular consent or as belligerents shall observe laws or customs of
approval of the people. (Nachura, Outline Reviewer war in conducting hostilities;
in Political Law, 2009 ed., p. 648) c. Third states recognizing belligerency should
maintain neutrality;
Objects of Recognition Recognition is only provisional and only for
1. State – generally held to be irrevocable and imports purposes of hostilities.
the recognition of its government.
Landmark case doctrines in recognition of states
2. Government – may be withdrawn and does not Wilson/Tobar Doctrine
necessarily signify the existence of a state, as the This precludes recognition of government established by
government may be that of a mere colony. revolution, civil war, coup d’etat or other forms of internal
violence until the freely elected representatives of the
Conditions for Recognition of new government: people have organized a constitutional government
a. Government must be effective and stable (Ecuadorian Foreign Minister Tobar and US Pres.
(objective test) Woodrow Wilson).
b. Government must show willingness and ability to
discharge international obligations (subjective Kelsen Doctrine
test) A state violates International Law and thus infringes upon
the rights of other states if it recognizes as a state a
Effects of Recognition of a State or Government: community which does not fulfill the requirements of
a. Full Diplomatic relations; International Law.
b. Right to sue in
courts of recognizing state; Betancourt Doctrine
c. Right to possession This came as a reflection of Venezuelan President
of properties of predecessor on the recognizing Romulo Betancourt’s antipathy for non-democratic rule,
state; which denied diplomatic recognition to any regime, right or
d. All acts of the left, which came to power by military force.
recognized state or government are validated
retroactively, preventing the recognizing state Lauterpacht Doctrine
from passing upon their legality in its own courts It is the recognition of an entity which is not legally a state
(Act of State Doctrine). is wrong because it constitutes an abuse of the power of
recognition. It acknowledges a community which is not, in
Recognition of State versus Recognition of law, independent and which does not therefore fulfill the
Government essential conditions of statehood as an independent state.
a. Recognition of the State carries with it recognition It is, accordingly, a recognition which an international
of government tribunal would declare not only to constitute a wrong but
b. Recognition of State is irrevocable probably also to be in itself invalid.
The right of states to come to the defense of a state

Stimson Doctrine whose situation meets the condition of legitimate
This precludes recognition of any government established individual self- defense under the UN Charter (Art.
as a result of external aggression (US Sec of State Henry 51, UN Charter).
Lewis Stimson).
The ICJ rejected the justification of collective self-
Estrada Doctrine defense maintained by the United States in
This refers to dealing or not dealing with the government connection with the military and paramilitary activities
established through a political upheaval is not a judgment in and against Nicaragua. Self-defense, whether
on the legitimacy of the said government (Mexican individual or collective, can only be exercised in
Minister Genaro Estrada). response to an armed attack. There is no rule
permitting the exercise of collective self-defense in
the absence of request by the State which is a victim
F UNDAMENTAL R IGHTS OF THE of an alleged attack (Nicaragua v. United States 1986
S TATES ICJ Rep).
Preventive/Anticipatory self-defense
A. RIGHT TO EXISTENCE AND SELF-DEFENSE The use of force in anticipation of an attack is legal if
This is the most comprehensive as all other rights of made in good faith-depends on circumstances of
state flow from it. A State may take measures including imminent danger.
the use of force as may be necessary to counteract
any danger to its existence. (Art. 51, UN Charter) A threatened State, according to long established
international law, can take military action as long as
Aggression the threatened attack is imminent, no other means
The use of armed force by a state against the would deflect it and the action is proportionate. (UN
sovereignty, territorial integrity or political High-level Panel on Threats, Challenges and Change
independence of another state, or in any other by Hanspeter Neuhold 2003 at para. 188).
manner inconsistent with the Charter of the United
Nations, as set out in this definition (Art. 1, UN Abatement doctrine / (Responsibility to Protect R2P)
General Assembly Resolution 3314). State sovereignty implies responsibility, and the
primary responsibility for the protection of its people
Acts of aggression lies with the state itself; (2) Where a population is
1. Invasion or attack of a state suffering serious harm, as a result of internal war,
2. Bombardment of state insurgency, repression or state failure, and the state
3. Blockade of ports or coasts in question is unwilling or unable to halt or avert it, the
4. Use of armed forces within a state in principle of non-intervention yields to the international
contravention to any agreement responsibility to protect’. (International Commission
5. Action of state in allowing the use of its territory on Intervention and State Sovereignty (2001)
for an act of aggression against a third state Sections 4.18-4.21)
6. Sending of armed groups or mercenaries which
carry an act of armed force against another state B.RIGHT OF SOVEREIGNTY AND INDEPENDENCE
(Art. 3, UN General Assembly Resolution 3314). Sovereignty
The totality of the powers, legal competence, and
Requisites for proper exercise of right of self-defense: privileges arising from customary international law,
(ASA) (Art. 51, UN Charter) and not dependent on the consent of another state
1. Armed attack; (Nachura, Outline Reviewer in Political Law, 2009
2. Self-defensive action taken by the attacked state ed., p. 658).
must be reported immediately to the Security .
Council; and Independence
3. Such action shall not in any way affect the right This means freedom from control by other state or
of the Security Council to take at any time action group of states and not freedom from the restrictions
as it deems necessary to maintain or restore that are binding on all states forming the family of
international peace and security. nations; carries with it by necessary implication the
correlative duty of non-intervention Nachura, Outline
Collective self-defense Reviewer in Political Law, 2009 ed., p. 658).
9
3. Voluntarily submitted to the jurisdiction of the
Intervention court concerned (Nachura, Outline Reviewer in
It is an act by which a state interferes with the Political Law, 2009 ed., p. 660).
domestic or foreign affairs of another state through
the employment of force or threat of force which may Restrictive application of the doctrine
be physical, political or economic (Nachura, Outline This immunity, however, is recognized only with
Reviewer in Political Law, 2009 ed., p. 658). respect to sovereign or public acts of the state and
cannot be invoked with respect to private or
Nothing contained in the present charter shall authorize proprietary acts (Nachura, Outline Reviewer in
the United Nations to intervene in matters which are Political Law, 2009 ed., p. 660). Neither may this
essentially within the domestic jurisdiction of any state or immunity be invoked when the foreign state sues in
shall require the members to submit such matters to the courts of another state, for then it is deemed to
settlement under the present charter; but this principle have submitted itself to the ordinary incidents of
shall not prejudice the application of enforcement procedure and thus, a counterclaim may be validly
measures under chapter 7 (Art. 2 par. 7 of the UN set up against it (Nachura, Outline Reviewer in
Charter). Political Law, 2009 ed., p. 660).
.
When intervention is sanctioned: (ADAR) The State is deemed to have waived its immunity:
1. As an act of self-defense; 1. When it gives consent at the time the proceeding
2. When decreed by the Security Council as a preventive is instituted;
or enforcement action for the maintenance of 2. When it takes steps relating to the merits of the
international peace and security; and case before invoking immunity;
3. When such action is agreed upon in a treaty; or 3. When by treaty or contract it had previously
4. When requested from fellow states or from the United given consent;
Nations by the parties to a dispute or a state beset by 4. When by law or regulation in force at the time
rebellion. Nachura, Outline Reviewer in Political Law, complaint arose it has indicated that it will
2009 ed., p. 659). consent to the institution of the proceedings
(Nachura, Outline Reviewer in Political Law,
Drago Doctrine 2009 ed., p. 661).
Intervention is not allowed for the purpose of making a
state pay its public debts. D. RIGHT TO TERRITORIAL INTEGRITY AND
(Art. 1 1907 Hague Convention II/ Drago-Porter JURISDICTION
Convention) Components of the territory of a State:
1. Terrestrial – land mass on which the inhabitants
C. RIGHT OF EQUALITY live;
Every state is entitled to the same protection and 2. Martime and fluvial
respect as are available to other states under the 3. Aerial and space (Nachura, Outline Reviewer in
rules of international law (Nachura, Outline Reviewer Political Law, 2009 ed., pp. 662-667).
in Political Law, 2009 ed., p. 659).
Act of State Doctrine T ERRITORY

A state should not inquire into the legal validity of the
public acts of another state done within the territory of
the latter. For this purpose, considerations such as As a requirement under the Montevideo Convention, a
motive are immaterial (Underhill v. Hernandez, 168 state must have reasonably stable political community and
U.S. 250). this must be in control of a certain area. The existence of
fully defined frontiers is not required and that what matters
Doctrine of State Immunity is the effective establishment of a political community
As a consequence of the independence, territorial (Brownlie, 2008).
supremacy and equality, a state enjoys immunity from
the exercise of jurisdiction (legislative, executive or IMPORTANT CONCEPTS RELATING TO TERRITORY:
judicial) by another state EXCEPT:
1. It has given consent Delimitation
2. Waived its immunity or The process of determining the land or maritime
boundaries of a State, including that of any continental
shelf or exclusive economic zone, and is generally done

by means of geographical coordinates of latitude and 3. Cession (by treaty)
longitude (Aust, Handbook on International Law, 2010, p. Territory is transferred from one state to another by
288). agreement between them (sale, donation,
barter/exchange and testamentary disposition) (Id.).
Demarcation
The further process and separate procedure of marking a 4. Subjugation
line of delimitation with physical objects such as concrete Having been previously conquered or occupied in the
posts, stone cairns, etc (Aust, Handbook on International course of war of the enemy, is formally annexed to it at
Law2010, p34. ). the end of the war. Conquest alone gives rise only to an
inchoate right since it is the formal act of annexation that
Inter-temporal Rule completes acquisition (Shaw, International Law, p. 500).
In deciding territorial disputes, one must assess the facts
in light of the international law at the ‘relevant time’, not Note: This mode of acquisition is no longer recognized
the law at the time the issue falls to be decided (Islands of inasmuch as the UN Charter prohibits resort to threat or
Palmas Case, US v. Netherlands, 1928). use of force against the territorial integrity or political
independence of any State (Article 5(3) of the Consensus
Critical Date Rule Definition of Aggression adopted in 1974 by the UN
It is the date by which the rights of the parties to a General Assembly).
territorial dispute have so crystallized that what they do
afterwards does not affect the legal position (Aust, 5. Accretion
Handbook on International Law, p. 35). Based on accessio cedat principali accomplished through
both natural or artificial processes as by the gradual and
MODES OF ACQUISITION OF TERRITORY imperceptible deposit of soil on the coasts of the country
1. Discovery and occupation through the action of the water or by reclamation projects
This is the original mode by which territory not belonging (Shaw, International Law, p. 498).
to any state or terra nullius is placed under the
sovereignty of the discovering state (Aust, Handbook on
International Law, p. 36).
The land need not be uninhabited provided that it can be

established that the natives are not sufficiently civilized Modes of Acquiring Modes of Losing
and can be considered possessing not rights of Territory Territory
sovereignty but only rights of habitation 1. Discovery and 1. Dereliction
Requisites: occupation 2. Cession
a. Possession; and 2. Cession 3. Erosion, or
b. administration. 3. Prescription other natural
4. Conquest and causes
Inchoate title of discovery subjugation 4. Prescription
Title is acquired by the claimant state pending compliance
with the second requirement which is administration. It
An international organization created at San Francisco
performs the function of barring other states from entering
Conference held in the US from April 25 to June 26, 1945.
the territory until the lapse of a reasonable period within
UN succeeded the League of Nations and is governed by
which the discovering state may establish a settlement
a charter that came into force on October 24, 1945.
thereon and commence to administer it.
Principal purposes of UN: (Art. 1, UN Charter)
2. Prescription
1. Maintain international peace and security;
The continuous and uninterrupted possession over a long
2. Develop friendly relations among nations;
period of time, just like in civil law. In international law,
3. Achieve international cooperation: and
however, there is no rule of thumb as to the length of time
4. Center for harmonizing actions of nations for
needed for acquisition of territory through prescription
attainment of these common goals.
(Aust, Handbook on International Law, p. 37).
Fundamental principles of UN (Art. 2, UN Charter)
Grotius Doctrine of Immemorial Prescription
Uninterrupted possession going beyond memory .
11
1. The organization is based on the sovereign equality
of all its members. The UN Charter
2. All members, in order to insure to all of them the Technically a treaty which parties must respect under the
rights and benefits resulting from membership, shall doctrine of pacta sunt servanda. It consists of 111 articles
fulfill in good faith the obligations assumed by them in besides the Preamble and concluding provisions.
accordance with the Charter.
3. All members shall settle their international disputes Amendment of the UN Charter:
by peaceful means in such manner that international It is done by 2/3 vote of the members of the General
peace, security and justice, are not endangered. Assembly and ratified in accordance with their respective
4. All members shall refrain in their international constitutional processes by 2/3 members of the United
relations from the threat or use of force against the Nations, including all permanent members of the Security
territorial integrity or political independence of any Council (Art. 108, UN Charter).
state, or in any manner inconsistent with the
purposes of the UN. A general conference called by a majority vote of General
5. Occasions when use of armed forces is allowed by Assembly and any nine members of Security Council may
UN Charter: propose amendments following the first procedure. (Art.
a. Maintain or restore international peace and 109, UN Charter)
security through demonstrations, blockade and
other operations by air, sea or land forces by UN Qualifications of member-States (SPAC): (Art. 4[1], UN
members Charter)
b. Inherent right to collective self defense if an 1. Must be a state;
armed attack occurs against a member state 2. Must be peace loving;
until Security Council has taken measures 3. Must accept obligations of member-states
necessary to maintain international peace and contained in the Charter; and
security. 4. Must be able and willing to carry out such
6. All members shall give the UN every assistance in obligation.
any action it takes in accordance with the Charter,
and shall refrain from giving assistance to any state Admission and suspension of members
against which the UN is taking preventive or Admission: Two-thirds (2/3) of those present and voting in
enforcement action. GA upon favorable recommendation of at least 9
7. The organization shall insure that states which are members of Security Council including permanent
not members of the UN shall act in accordance with members.
these principles so far as may be necessary for the
maintenance of international peace and security. To effect an admission, a recommendation of the Security
8. Nothing contained in the present Charter shall Council and a decision of the General Assembly, is
authorize the UN to intervene in matters which are required. Recommendation is the foundation of the
essentially within the domestic jurisdiction of any decision to admit. (Art. 4[2], UN Charter)
state or shall require the members to submit such
matters to settlement under the Charter; but this Suspension:
principle shall not prejudice the application of Same vote as required in admission; may be lifted alone
enforcement measures. by Security Council also by qualified majority vote.
Domestic Jurisdiction Clause Effects of suspension:

As U NITED
long N ATIONS
as the matter remains internal, the same cannot 1. Prevented from participating in meetings of
be the subject of intervention by the UN. The dispute must the GA
be international in character, not domestic. Rebellion is 2. Prevented from being elected to or
NOT under the Organization’s jurisdiction. continuing to serve in the SC, Economic and
Social Council or Trusteeship Council
Exceptions: 3. Nationals of suspended member may
1. Where internal conflict aggravates into a threat to continue serving the secretariat and ICJ as they
or an actual breach of international peace and are regarded as international officials or civil
security; servants acting for the Organization itself
2. Parties voluntarily invoke and submit to the
jurisdiction of the UN for the settlement of their Expulsion of Members
dispute.
Members may be expelled if they persistently violated 4. Decisions on important questions shall be made
principles by the vote of two-thirds (2/3) of those present by a two-thirds majority of the members present
and voting in the GA upon recommendation of the and voting, while decisions on other questions
Security Council by a qualified majority vote, to provide for shall be made by a majority of the members
a stronger penalty than mere suspension against a present and voting.
member.
Important questions that require two-thirds majority
Withdrawal of Members vote of the members:
No provision on withdrawal from membership was a. Recommendations with respect to the
included in the Charter. However, a member might maintenance of international peace and security;
withdraw from the United Nations if: b. Election of non-permanent members of the
1. The UN was revealed to be unable to maintain peace Security Council;
or could do so only at the expense of law and justice. c. Election of members of the Economic and Social
2. Members’ rights and obligations as such were Council;
changed by a charter amendment in which it had not d. Election of members of the Trusteeship Council;
concurred or which it finds itself unable to accept. e. Admission of new members to the United
3. Amendment duly accepted by the necessary majority Nations;
either in the GA or in a general conference is not f. Suspension of the rights and privileges of
ratified. membership;
g. Expulsion of members;
PRINCIPAL ORGANS OF THE UNITED NATIONS h. Questions relating to the operation of the
(Art. 7[1], UN Charter) trusteeship system; and
1. General Assembly – central organ where all i. Budgetary questions.
members are represented. The General Assembly is
not a legislative body; it can only recommend. (Art. 9, 2. Security Council – organ responsible for the
UN, Charter) maintenance of peace and security; undertakes
preventive and enforcement actions. (Art. 23, UN
Functions of the General Assembly: (SBCDE) Charter)
(Art. 10-17, UN Charter)
a. Supervisory – receives and considers reports Membership
from other organs of the United Nations. a. Permanent Members (CUFRU)
b. Budgetary – controls the finances of the United China, United Kingdom, France, Russia, and
Nations. United States of America
c. Constituent – participates in the amendment of b. Non-permanent Members
the UN Charter. 5 – from African and Asian States
d. Deliberative – discusses principles regarding 2 – from Latin American States
maintenance of international peace and security. 2 – from Western European and other states
e. Elective – elects non-permanent members of the 1 – from Eastern European States
Security Council, some members of the
Trusteeship Council and all members of the Voting Procedure (Art.28-32, UN Charter)
Economic and Social Council.
Yalta Formula – each member shall have 1 vote but
Voting Procedure (Art. 18-22, UN Charter) distinction is made between the Big 5 and the non-
1. Each member of the General Assembly shall permanent members in the resolution of substantive
have one vote. questions.
2. However, a member which is in arrears in the Procedural matters are to be decided by the
payment of its financial contributions to the affirmative vote of any 9 or more members (questions
Organizations shall have no vote if the amount of regarding organization and meetings of SC,
its arrears equals or exceeds the amount of the establishment of subsidiary organs and participation
contributions due from it for the preceding two of states parties to a dispute in the discussions of the
full years. organ).
3. But, the General Assembly may, nevertheless,
permit such member to vote if it is satisfied that Decision on non-procedural matters requires the
failure to pay is due to conditions beyond the concurrence of also at least 9 members but including
control of the member. all permanent members (matters requiring SC under
13
its responsibility of maintaining or restoring world questions referred to it by authorized United Nations
peace, to invoke measures of enforcement and unlike organs and specialized agencies. (Id.)
in GA, characterization of a question is considered
non- procedural in SC) It is assisted by a Registry, its administrative organ,
and uses English and French as its official
No member, permanent or not, is allowed to vote on languages.
questions concerning the pacific settlement of a
dispute to which it is a party. Membership of the ICJ:
15 members, who are elected by absolute majority
Formula to ensure unity of permanent members in vote in both the General Assembly and the Security
the measures to be taken in the pursuit of its primary Council. These organs vote simultaneously but
function of maintaining international peace and separately. (Art. 3 -4, ICJ Statute)
security
No two of them may be nationals of the same state,
The above rules enable a permanent member to cast and in the event that more than one national of the
a veto and thereby prevent agreement on a non- same state obtain the required majority, only the
procedural question even if it is supported by all eldest shall be considered elected. (Art. 3, ICJ
other members of the Security Council. Statute)
It can also exercise a double veto by means of which Judges must be of high moral character, and possess
it can disapprove any proposal to consider a the qualifications required in their respective
question merely procedural and thereafter vote countries for appointment to their highest judicial
against the question itself on the merits. offices, or are jurisconsults of recognized
Significantly, the abstention or absence of any competence in international law.
permanent member in connection with a voting on a
non-procedural question is not considered a veto, Members of the Court have a term of nine (9) years,
and the proposal is deemed adopted if approved by and may be re-elected. (Art. 9, ICJ Statute)
at least nine members of the Security Council, Should a judge die or resign during his or her term of
including the rest of the permanent members office, a special election is held as soon as possible
to choose a judge to fill the unexpired part of the
3. Economic and Social Council – serves as the central term.
forum for discussing international economic and Once elected, a Member of the Court is a delegate
social issues, and for formulating policy neither of the government of his own country nor that
recommendations addressed to Member States and of any other state.
the United Nations system. (Art. 61, UN Charter) No judge can be removed unless, in a unanimous
opinion of the other members, he has ceased to fulfill
It exerts efforts towards higher standards of living, the required conditions. (Art. 18, ICJ Statute)
solutions of international economic, social, health and
related problems, facilitating international cultural and A Member of the Court, when engaged on the
educational cooperation, universal respect for and business of the Court, enjoys privileges and
observance of human rights and fundamental immunities comparable with those of the head of a
freedoms. (Id,) diplomatic mission. (Art. 19, ICJ Statute)
4. Trusteeship Council – organ charged with the The Court shall elect its President and Vice
administration of the International Trusteeship President, who shall serve for three years and may
System (idle council); (Art. 86, UN Charter) be re-elected. All questions are decided by majority
of the judges present, the quorum being nine when
5. International Court of Justice – principal judicial organ the full Court is sitting.
of UN; World Court governed by the Statute which is
annexed to and made part of the UN Charter; (Art. Jurisdiction (Art. 36, ICj Statute)
92, UN Charter) a. Interpretation of treaty;
b. Question of international law;
The Court’s role is to settle, in accordance with c. Existence of fact constituting a breach of
international law, disputes of legal nature, submitted international obligation;
to it by States and to give advisory opinions on legal
d. Nature or extent of the reparation to be made for a. Only states may be parties in cases before it
the breach of an international obligation; and b. Consent of the parties needed for the court
e. To render advisory opinions to acquire jurisdiction over a case
Contentious Cases – ONLY States (Members of the 5. Secretariat – chief administrative organ of the UN.
UN and other States which have become parties to The main officers of the Secretariat are:
the Statute of the Court or which have accepted his (Art. 97- 101, UN Charter)
jurisdiction under certain conditions) may be parties to a. The Secretary General is chosen by the General
such cases. Assembly upon recommendation of the Security
Council.
The Court is competent to entertain a dispute only if b. His term is fixed at five years, and he may be re-
the States concerned have accepted or recognized its elected.
jurisdiction in one or more of the following ways: c. He shall be the highest representative of the UN,
1. By entering and is authorized to act in its behalf.
into a special agreement to submit the dispute to d. When acting in his capacity, he is entitled to full
the Court diplomatic immunities and privileges, which only
2. By virtue of the Security Council may waive.
a jurisdictional clause, when they are parties to a e. The Secretary General also acts as
treaty concerning a provision whereby in the SECRETARY in all meetings of the General
event of a dispute of a given type or Assembly, Security Council, Economic and
disagreement over the interpretation of the Social Council and the Trusteeship Council; and
treaty, one of them may refer the dispute to the perform such other functions as may be
Court assigned to him by these organs.
3. Through f. The Secretary General and members of his staff
reciprocal effect of declarations made by them are INTERNATIONAL OFFICERS solely
under the Statute whereby each has accepted responsible to the Organization, and are
the jurisdiction of the Court as compulsory in the PROHIBITED from seeking or receiving
event of a dispute with another State having instructions from any government or authority
made a similar declaration. external to the UN.
a. No State can therefore be a party to g. The Secretary General enjoys the RIGHT OF
proceedings before the Court unless it has POLITICAL INITIATIVE and may bring to the
in some manner or other consented thereto. attention of the Security Council any matter,
which in his opinion, may threaten international
Advisory Proceedings – are open solely to the five peace and security.
organs of the United Nations, and to the 16
specialized agencies of the United Nations. (Art. 65- D IPLOMATIC AND C ONSULAR
68, ICJ, Statute) L AWS
b. The General Assembly and Security Council may
request advisory opinions on “any legal
question”. Other United Nations organs and AGENTS OF DIPLOMATIC INTERCOURSE
specialized agencies which have been 1. Head of state
authorized to seek advisory opinions can only do He is the embodiment of, and represents, the
so with respect to “legal questions arising within sovereignty of the State. He enjoys the right to
the scope of their activities.” special protection for his physical safety and the
c. It is of the essence of such opinions that they are preservation of his honor and reputation. His
advisory, unlike the Court’s judgments, they have quarters, archives, property and means of
NO binding effect. transportation are inviolate (Principle of
d. The requesting organ, agency or organization Exterritoriality)
remains free to give effect to the opinion, or not 2. Foreign secretary or minister;
to do so. 3. Members of diplomatic service;
e. However, certain instruments and regulations 4. Special diplomatic agents appointed by head of the
can provide beforehand that an advisory opinion state
by the Court shall have a binding force. 5. Envoys ceremonial
Limitations on Jurisdiction under its statute: Diplomatic Corps
15
A body consisting of all diplomatic envoys accredited to b. Actions relating to succession- diplomat is
the same local or receiving state executor, administrator, heir/legatee; and
The doyen du corps or the head of this body is the c. Actions relating to professional or commercial
Papal Nuncio, if there is one, or the oldest activity in the receiving state outside of official
ambassador, or in the absence, the oldest Minister functions.
Plenipotentiary. (Nachura, Outline Reviewer in 4. Personal inviolability;
Political Law, p. 676) Subject to the rules of reciprocity and except in
cases of self-defense and reasonable physical
Appointment of Envoys restraint, R.A. 75 penalizes a person who
In the Philippines, it is the President who appoints (Sec. assaults, strikes, wounds, or offers violence to
16, Art. VII Philippine Constitution), sends and instructs the person of an Ambassador.
the diplomatic and consular representatives, and his 5. Exemption from subpoena;
prerogative to determine the assignment of the country’s 6. Exemption from taxation or custom duties.
diplomatic representatives cannot be questioned (De Exceptions:
Perio-Santos v. Macaraig, G.R. No. 94070, April 10, a. Indirect taxes;
1992). b. Dues or taxes on private real property in the
receiving state unless being held on behalf of
Functions of diplomatic missions (RPN-PAR): sending state for the purpose of the mission;
1. Representing sending state in receiving state; c. Taxes on estate, inheritance, succession;
2. Protecting in receiving state interests of sending d. Taxes on private income and source from
state and its nationals; receiving state and capital taxes on investments
3. Negotiating with government of receiving state; in commercial ventures in receiving state;
4. Promoting friendly relations between sending and e. Charges levied for specific services; and
receiving states and developing their economic, f. Registration, court or record fees, mortgage
cultural and scientific relations; dues, stamp duty with respect to immovables,
5. Ascertaining by all lawful means conditions and
developments in receiving state and reporting thereon Waiver of immunities
to government of sending state; and Diplomatic privileges can be waived, but the waiver
6. In some cases, representing friendly governments at cannot be made by the individual concerned since
their request. such immunities are not personal to him.
Agreation Waiver may be made only by the government of the

The process in the appointment of diplomatic envoy where sending state if it concerns the immunities of the head
States resort to an informal inquiry (enquiry) as to the of mission.
acceptability of a particular envoy, to which the receiving
state responds with an informal conformity (agreement). In other cases, the waiver may be made either by the
(Coquia and Defensor, International Law and World government or by the chief of mission.
Organizations 2005, p. 291)
Waiver of this privilege does not include waiver of the
Letre De Creance (Letter of Credence) immunity in respect of the execution of judgment; a
This contains the name, rank and general character of his separate waiver for the latter is necessary.
mission, and a request for favorable reception and full
credence. Duration of immunities
Enjoyed by the envoy from the moment he enters the
Privileges and immunities accorded to diplomatic envoy territory of the receiving state, and shall cease only
(PC-LISTO): (Nachura, Outline Reviewer in Political Law, the moment he leaves the country
p. 675)
1. Inviolability of premises and archives; With respect to official acts, immunity shall continue
Inviolability of premises cannot be invoked if the indefinitely.
Ambassador requests for local police assistance.
2. Right of official communications; Privileges are available even in transitu, when
3. Exemption from local jurisdiction; traveling through a third State on the way to or from
Exceptions: the receiving state.
a. Real action relating to private immovables found
in the receiving state; Consuls
They are state agents residing abroad for various The definition excludes agreements between states which
purposes but mainly in the interest of commerce and are governed by municipal law and agreements between
navigation and not in political matters states which are not intended to create legal relations at
all (Malanczuk Peter, Akehurst’s Modern Introduction to
Duties: (PPOIS) International Law, 1997).
1. Protection of the interests of the sending state and its
national in the receiving state. A U.N. Declaration is, according to one authoritative
2. Promotion of the commercial, economic, cultural and definition, "a formal and solemn instrument, suitable for
scientific relations of the sending and receiving rare occasions when principles of great and lasting
states. importance are being enunciated." Accordingly, it has
3. Observation of conditions and developments in the been observed that the Universal Declaration of Human
receiving state and report thereof to the sending Rights "no longer fits into the dichotomy of ‘binding treaty’
state. against ‘non-binding pronouncement,' but is rather an
4. Issuance of passports and other travel documents to authoritative statement of the international community
nationals of the sending state and visas or (Razon v. Tagitis, G.R. No. 182498, December 3, 2009).
appropriate documents to persons wishing to travel to Where a party to an agreement is just an entity within a
the sending state. state, no binding international law obligation is created
5. Supervision and inspection of vessels and aircraft of notwithstanding that said agreement includes foreign
the sending state. dignitaries as signatories and that its signing was
witnessed by representatives of foreign nations. Thus, the
Appointment of consuls Memorandum of Agreement on the Ancestral Doman
Two or more documents are necessary before the (MOA-AD) between the government of the Republic of the
assumption of consular functions, namely: Philippines and the MILF is not an internationally binding
1. Letters patent (letter de provision) – letter of agreement nor does it constitute a unilateral declaration
appointment or commission which is transmitted by on the part of the Government of the Republic of the
the sending state to the Secretary of Foreign Affairs Philippines because the commitments in the MOA-AD
of the country where the consul is to serve; and were not addressed to States and not complying thereto
2. Exequatur – the authorization given to the consul would not be detrimental to the security of international
by the sovereign of the receiving state, allowing him intercourse (The Province of North Cotabato et al. v. The
to exercise his function within the territory. Government of the Republic of the Philippines Peace
Panel on Ancestral Domain, G.R. No. 183591, October
Immunities and Privileges: (CMJT) 14, 2008).
1. Inviolability of their correspondence, archives and
other documents; Requisites: (PAW-LR)
2. Freedom of movement and travel; 1. Entered into by parties having treaty-making capacity;
3. Immunity from jurisdiction for acts performed in 2. Through their authorized organs or representatives;
official capacity; 3. Without attendance of duress, fraud, mistake or other
4. Exemption from certain taxes and customs duties. vices of consent;
Notes: 4. Lawful subject matter and object; and
Immunities and privileges are also available to the 5. Ratification in accordance with their respective
members of the consular post, their families and their constitutional processes.
private staff.
Effect of unwritten treaty: (LMR)
Waiver of immunities may be made by the appointing 1. Has legal force;
state. 2. Convention rules on matters governed by
international law independently of convention shall
apply; and
T REATIES 3. Convention rules apply to the relations of states as
between themselves under international agreement
An international agreement concluded between states in with other subjects as parties.
written form and governed by international law whether
embodied in a single instrument or in two or more related Steps in the Treaty-Making Process: (NSRER)
instruments (Art. 2, Vienna Convention on the Law of (Nachura, Outline Reviewer in Political Law, pp.684-686)
Treaties, 1969). 1. Negotiation – discussion of the provisions of the
proposed treaty, undertaken by the representatives of
17
the contracting parties who are provided with as full Pacta Tertiis Nec Nocent Nec Prosunt – a State
powers or pleins pouvoirs. is not bound to act in accordance with a treaty if
Full Powers — the authority granted unto a it is not a party to a treaty, except if that treaty
representative of the state to enter into, negotiate, codifies customary international law
sign and seal a treaty. This shall be made by the
President or the Secretary of Foreign Affairs, when Exceptions: (EVEN)
delegated (Sec.4, E.O. No. 459, Guidelines in the 1. Treaty is merely an expression of customary
Negotiation of International Agreements and its international law
Ratification). 2. By virtue of the most favored nation clause
3. Treaty expressly extends its benefits to non-
Persons exempted from producing full powers: signatories
(Sec.4, EO No. 459) 4. Treaty is necessary for the maintenance of
a. Secretary of Foreign Affairs international peace
b. Heads of Philippine diplomat missions, for the
purpose of adopting the next of a treaty or an Reservation
agreement between the Philippines and the A unilateral statement, made by a state when signing,
State to which they are accredited; ratifying, accepting, approving or acceding to a treaty,
c. Representative accredited by the Philippines to whereby it purports to exclude or modify the legal effect of
an international conference or to an certain provisions of the treaty in their application to the
international organization or one of its organs, state. The state making the reservation remains a party to
for the purpose of adopting the text of a treaty a treaty, provided that the reservation is compatible with
in that conference, organization or organ. the object and purpose of the treaty ( Page 12, Treaty
2. Signature – primarily intended as a means of Handbook – United Nations Publication, 2012).
authenticating the instrument and symbolizing the
good faith of the contracting parties. Rules pertaining to reservations
Practice of Alternat – arrangement under which (Art. 19-23, Vienna Convention on the Law of Treaties)
each negotiator is allowed to sign first on the copy 1. A State may make a reservation unless:
of the treaty which he will bring home to his own a. The reservation is prohibited by the treaty;
country, the purpose being to preserve the formal b. The treaty only provides specified reservations;
appearance of equality among the contracting c. When the reservation is incompatible with the
states and to avoid delicate questions of purpose and objective of the treaty;
precedence among the signatories. 2. A reservation does not require acceptance unless it is
otherwise provided by the treaty itself;
Note: Signature DOES NOT create an obligation to
ratify. 3. When it appears from the limited number of the
3. Ratification – Act by which the state formally accepts negotiating States and the object and purpose of a
the provisions of a treaty concluded by its treaty that the application of the treaty in its entirety
representative. between all the parties is an essential condition of the
4. Exchange of instruments of ratification consent of each one to be bound by the treaty, a
5. Registration with UN. reservation requires acceptance by all the parties. In
special cases, a competent organ or organization to
Form of treaties which the treaty is an integral instrument must give its
There are no substantive requirements as to the form of acceptance.
treaties, and thus, an agreement may be recorded in
various ways such as exchange of letters or minutes of a 4. Unless the treaty otherwise provides:
conference (Art. 2, Vienna Convention on the Law of a. acceptance by another contracting State of a
Treaties) reservation constitutes the reserving State a
party to the treaty in relation to that other State if
Binding effects of treaty or when the treaty is in force for those States;
General Rule: Only the following contracting parties are b. an objection by another contracting State to a
bound: reservation does not preclude the entry into force
1. Original signatories of the treaty as between the objecting and
2. Other states allowed, reserving States unless a contrary intention is
by terms of the treaty, to sign it later (accession) definitely expressed by the objecting State;
c. an act expressing a State’s consent to be bound Airlines, G.R. No. 101538, June 23, 1992). There is a
by the treaty and containing a reservation is necessity for a formal act of rejection, usually by the Head
effective as soon as at least one other of State, with the statement of the reasons why
contracting State has accepted the reservation. compliance with the treaty is no longer required.
5. A reservation is considered to have been accepted by Purpose of exception:

a State if it shall have raised no objection to the ‘If the other party were obdurate in opposing any change,
reservation by the end of a period of twelve months the fact that international law recognized no legal means
after it was notified of the reservation or by the date of terminating or modifying the treaty otherwise than
on which it expressed its consent to be bound by the through a further agreement between the same parties
treaty, whichever is later. might impose a serious strain on the relations between the
States concerned; and the dissatisfied State might
6. A reservation is only personal and effective to the
ultimately be driven to take action outside the law’
state-party who made the reservation. It does not
(International Law Commission, 1966 YBILC 258 para. 6).
alter the provisions of the treaty with respect to the
other state-parties inter se.
Requisites for rebuc sic stantibus to apply: (SUCIDO)
7. A reservation is done in writing and communicated to (Nachura, Outline Reviewer in Political Law, p. 687)
the state-parties. 1. The change must be so substantial that the
PRINCIPLES OF TREATY LAW foundation of the treaty must have altogether
Doctrine of Unequal Treaties disappeared;
Treaties which have been imposed through coercion or 2. The change must have been unforeseen or
duress by a State of unequal character are void. unforeseeable at the time of the perfection of the
treaty;
Accession 3. The change must not have been caused by the
Also known as adhesion, this is the process by which a party invoking the doctrine;
non-signatory state becomes a party to a treaty (Art. 2(b), 4. The doctrine must be invoked within a
VCLT). reasonable time;
5. The duration of the treaty must be indefinite; and
OBSERVANCE OF TREATIES 6. The doctrine cannot operate retroactively, i.e., it
General Rule: must not adversely affect provisions which have
Pacta Sunt Servanda — every treaty in force is binding already been complied with prior to the vital change in
upon the parties to it and must be performed by them in the situation.
good faith (Art. 26, Vienna Convention on the Law of
Treaties). Amendment or modification of a treaty
General Rule: The consent of all the parties is required.
Note: The Gabčíkovo-Nagymaros Case clarified other
issues concerning the law of treaties, particularly as Exception: If allowed by the treaty itself, two States may
regards the plea of fundamental change of circumstances modify a provision only insofar as they are concerned
and the material breach of treaties. Most importantly, (Shaw, International Law, p. 930).
however, the ICJ took a firm stance in support of the
principle of stability of treaty relationships, limiting the Termination of treaty (TAIL-DEN-VOV-RJ):
possibility of the unilateral denunciation of treaties to (Nachura, Outline Reviewer in Political Law,p.688)
exceptional cases. By rejecting that reciprocal wrongful 1. Expiration of term;
conduct by both parties to a bilateral treaty could lead to 2. Accomplishment of purpose;
its unilateral termination, the ICJ emphasized the strict 3. Impossibility of performance;
observation of the principle of pacta sunt servanda. 4. Loss of subject matter;
5. Desuetude – desistance of parties by express mutual
Exception: consent or exercise of right of renunciation when
Rebus Sic Stantibus — a legal principle which would allowed;
justify non-performance of treaty obligations where 6. Extinction of one of parties, if treaty is bipartite;
unforeseen or substantial changes occur which would 7. Novation;
render one of the parties thereto unable to undertake 8. Occurrence of vital change of circumstance;
treaty obligations as stipulated therein. This doctrine does 9. Outbreak of war;
not operate automatically (Santos III v. Northwest Orient 10. Voidance of treaty because of:
a. Defects in constitution
19
b. Violation of its provision by one party US Armed Forces through the VFA is a presence "allowed
c. Incompatibility with international law under" the RP-US Mutual Defense Treaty. Since the RP-
11. Application of the doctrine of rebus sic stantibus US Mutual Defense Treaty itself has been ratified and
12. The doctrine of jus cogens (or the emergence of a concurred in by both the Philippine Senate and the US
new peremptory norm of general international law Senate, there is no violation of the Constitutional provision
which renders void any existing treaty conflicting with resulting from such presence. The VFA being a valid and
such norm) binding agreement, the parties are required as a matter of
international law to abide by its terms and provisions
Invalid treaties: (CoCo-JUCAFE) (Simbolon v. Romulo G.R. No. 175888, February 11,
1. Those which are contrary to the provisions of a 2009).
country’s internal law (Unconstitutionality Rule).
Art. 46 of the VCLT: “A state may not invoke the N ATIONALITY
AND
fact that its consent to be bound by a treaty has
STATELESSNESS
been expressed in violation of a provision of its
internal law regarding competence to conclude
treaties as invalidating its consent unless that Nationality
violation was manifest and concerned a rule of A legal bond having as its basis a social fact of
fundamental importance.” attachment, a genuine connection of existence, interests
2. Representative’s lack of authority; and sentiments, together with the existence of reciprocal
3. Corruption of a state representative; rights and duties. It may be said to constitute the juridical
4. Error expression of the fact that the individual upon whom it is
Art. 48 of the VCLT: Error may be invoked if such conferred, either directly by the law or as a result of an act
relates to a fact or situation which was assumed of the authorities, is in fact more closely connected with
by that state to exist at the time when the treaty the population of the State conferring nationality than with
was concluded and formed an essential basis of that of any other State (Nottebohm Case, Liechtenstein v.
its consent to be bound by the treaty, except, if Guatemala, April 6, 1955).
the state in question contributed by its own
conduct to the error or if the circumstances were Citizenship
such as to put that State on notice of a possible A more exclusive meaning in that it applies only to certain
error. members of the state accorded more privileges than the
5. Fraud; rest of the people who owe it allegiance. Its significance is
6. Coercion of State representatives; municipal, not international (Coquia and Defensor,
7. Coercion of a state International Law and World Organizations, 2005, p. 264).
8. Violation of a peremptory norm of international law
(Jus Cogens) Rules in determination of nationality:
The 1930 Hague Convention on Conflict of Nationality
Validity of the Visiting Forces Agreement provides for the following rules in determining a person’s
Joint RP-US military exercises for the purpose of nationality:
developing the capability to resist an armed attack fall 1. It is for each State to determine under its own rules
squarely under the provisions of the RP-US Mutual who are its nationals. This law shall be recognized by
Defense Treaty. The VFA, which is the instrument agreed other States in so far as it is consistent with
upon to provide for the joint RP-US military exercises, is international conventions, international custom, and
simply an implementing agreement to the main RP-US the principles of law generally recognized with regard
Military Defense Treaty. Accordingly, as an implementing to nationality (Article 1); and
agreement of the RP-US Mutual Defense Treaty, it was 2. Any question as to whether a person possesses the
not necessary to submit the VFA to the US Senate for nationality of a particular State shall be determined in
advice and consent, but merely to the US Congress under accordance with the law of that State (Article 2).
the Case–Zablocki Act within 60 days of its ratification. It
is for this reason that the US has certified that it Acquisition of nationality:
recognizes the VFA as a binding international agreement 1. birth,
(Simbolon v. Romulo G.R. No. 175888,February 11, 2. naturalization,
2009). 3. repatriation,
4. subjugation, and
The provision of Art. XVIII, Sec. 25 of the Constitution, is 5. cession (Nachura, Outline Reviewer in Political Law,
complied with by virtue of the fact that the presence of the 2009, pp. 689-690).
rationing of products in short supply and treatment of no

Loss of nationality: less favorable than that accorded aliens in general.
1. release,
2. deprivation, Treatment of Stateless Individual
3. renunciation, and International conventions provide that stateless individuals
4. substitution (Nachura, Outline Reviewer in Political are to be treated more or less like the subjects of a foreign
Law, 2009, pp. 690). state.
Multiple nationality Consequence of Statelessness

It is the possession by an individual of more than one Any wrong suffered by him through the act or omission of
nationality. It is acquired as the result of the concurrent a state would be damnum absque injuria for in theory no
application to him of the conflicting municipal laws of two state has been offended and no international delict
or more states claiming him as their national (Nachura, committed (Simperingham, The International Protection of
Outline Reviewer in Political Law, 2009, p. 690). Stateless individuals: A Call for Change, June 2003).
Doctrine of Indelible Allegiance Measures to be taken to prevent statelessness

An individual may be compelled to retain his original 1. A contracting state shall grant its nationality to a person
nationality notwithstanding that he has already renounced born in its territory who would otherwise be Stateless
it under the laws of another state whose nationality he has (Art.1, Convention on the Reduction of Statelessness);
acquired (Boczek, International Law: A Dictionary, and
Chapter 3, Page 190). 2. A contracting state shall grant its nationality to a
person, not born in the territory of a contracting state, who
Doctrine of Effective Nationality (Nottebohm Principle) would otherwise be stateless, if the nationality of one of
This is expressed in Art. 5 of the Hague Convention of his parents at the time of the person’s birth was that of
1930 on the Conflict of Nationality Laws that a person that State (Art. 4, Convention on the Reduction of
having more than one nationality shall be treated as if he Statelessness).
had only one – either the nationality of the country in
which he is habitually and principally resident or the
nationality of the country with which in the circumstances S TATE R ESPONSIBILITY
he appears to be in fact most closely connected (Frivaldo
v. COMELEC, G.R. No. 87193, June 23, 1989, citing Concept of State Responsibility
Nottebohm Case). It is a fundamental principle of international law, arising
The doctrine of implied election will apply only if the out of the nature of the international legal system and the
elector has already become a Filipino at the time of doctrines of state sovereignty and equality of states. It
reaching the age of majority by the other modes of provides that whenever one state commits an
acquiring citizenship and the only issue is whether or internationally unlawful act against another state,
not he can be considered a natural born citizen. If the international responsibility is established between the two.
issue is whether or not he is a Filipino by election, the A breach of an international obligation gives rise to a
doctrine of implied election will not apply. requirement for reparation (Shaw, International Law,
p.778; J. Crawford, The International Law Commission’s
Statelessness Articles on State Responsibility).
A condition or status of an individual who is born without
any nationality or who loses his nationality without Internationally Wrongful Act
retaining or acquiring another. There is an internationally wrongful act of a state when
conduct consisting of an action or omission is attributable
The status of having no nationality, as a consequence of to the state under international law and constitutes a
being born without any nationality or as a result of breach of an international obligation of the state
deprivation or loss of nationality (Nachura, Outline (Yearbook of the ILC, 1976, vol. II, pp. 75; Chozrow
Reviewer in Political Law, 2009, p. 691). Factory Case, PCIJ, Series A. No.9, p. 21).
Rights of Stateless Persons Elements of an Internationally Wrongful Act:

The stateless person is entitled to, among others, the right
to religion and religious instruction, access to courts, 1. Act that is attributable to the state under international
elementary education, public relief and assistance, law;
21
2. Must constitute a breach of international obligation by direction or control of, that State in carrying out the
a state (Art. 2, Responsibility of States for conduct. (Art. 8)
Internationally Wrongful Acts). 4. The conduct of a person or group of persons that is
in fact exercising governmental authority in the
Views on State Responsibility: absence or default of the official authorities and in
1. Objective Responsibility –this principle maintains that circumstances such as to call for the exercise of that
the liability of the state is strict. Once an unlawful act authority (Art. 9)
has taken place, which has caused injury and which 5. The conduct of an insurrectional movement which
has been committed by an agent of the state, that becomes the new Government of a State (Art. 10[1])
state will be responsible in international law to the 6. The conduct of a movement, insurrectional or other,
state suffering the damage irrespective of good or which succeeds in establishing a new State in part of
bad faith (Shaw, International Law, p.783). the territory of a pre-existing State or in a territory
2. Subjective Responsibility (fault theory) - this principle under its administration, shall be considered an act of
emphasizes that an element of intentional (dolus) or the new State (Art. 10[2])
negligent (culpa) conduct on the part of the person 7. Conduct which the State acknowledges and adopts
concerned is necessary before his state can be as its own (Art. 11) (Chapter 2, of the Responsibility
rendered liable for any injury caused. (Crawford, The of States for Internationally Wrongful Acts).
International Law Commission’s Articles on State
Responsibility, p.12) Jurisdiction
The power or authority exercised by a State over land,
Note: In the Corfu Channel case, the International Court persons, property, transactions and events. The basic
appeared to lean towards the fault theory by saying that: question of jurisdiction centers upon which State has
“it cannot be concluded from the mere fact of the control sovereignty or legal control over land, persons, ships at
exercised by a state over its territory and waters that that sea, airships in flight, property, transactions or events, in
state necessarily knew, or ought to have known, of any various situations (Nachura, Outline Reviewer in Political
unlawful act perpetrated therein, nor yet that it necessarily Law, 2009, p. 667).
knew, or should have known, the authors. This fact, by
itself and apart from other circumstances, neither involves Bases of Jurisdiction
prima facie responsibility nor shifts the burden of proof.” 1. Territorial Principle — the State may exercise
(Corfu Channel Case, ICJ Reports, 1949, p. 4,18) jurisdiction only within its territory. Exceptionally, it
may have jurisdiction over person and acts done
Attribution outside its territory depending on the kind of
It is a legal construct whereby an internationally unlawful jurisdiction it invokes (Nachura, Outline Reviewer in
conduct of State organ acting in that capacity is regarded Political Law, 2009, p. 668).
as the conduct of the State itself, making that State
responsible for it as an internationally wrongful act. A A State has criminal jurisdiction only over offenses
State is internationally responsible for its own acts or committed within its territory, except: (i) continuing
omissions, but as an abstract entity it can physically act offenses; (ii) acts prejudicial to the national security or
only through individuals or groups of individuals vital interests of the States; (iii) universal crimes; and
performing “acts of the State” on its behalf ( Differences (iv) offenses covered by special agreement (Id.)
Relating to Immunity from Legal Processes of a Special
Rapporteur of the Commission of Human Rights [38 ILM 2. Nationality Principle — the State has jurisdiction over
873,1999]). its nationals anywhere in the world, based on the
theory that a national is entitled to the protection of
Conducts Attributable to the State: the State wherever he may be, and this, is bound to it
1. The conduct of any of its organs, whether exercising by duty of obedience and allegiance, unless he is
legislative, executive, judicial or any other functions prepared to renounce his nationality (Id.).
(Art. 4)
2. The conduct of a person or entity which is 3. Protective Principle — the State has jurisdiction over
empowered by law of that State to exercise acts committed abroad (by nationals or foreigners)
governmental authority provided the person or entity which are prejudicial to its national security or vital
is acting in that capacity in that particular instance interest (Id.).
(Art. 5)
3. The conduct of a person or group of persons that is Note: Art 2 of the RPC, the Philippines has
in fact acting on the instructions of, or under the jurisdiction over: (i) offenses committed on board a
Philippine ship or airship; (ii) forgery/counterfeiting of A State may, by virtue of customary or conventional law,
Philippine coins or currency notes; (iii) introduction extend its jurisdiction to territory not within its sovereignty
into the Philippines of such forged or counterfeit coins in the following cases:
or notes; (iv) functions; and (v) crimes against 1. Assertion of personal jurisdiction over its national
national security and the law of nations (Id.). abroad; and
2. By virtue of its relations with other States, as
4. Principle of Universality — the State has jurisdiction when it establishes protectorate, or
over offenses considered as universal crimes condominium, or administers trust territory, or
regardless of where committed and who committed occupies enemy territory in the course of war.
them (Id.). 3. As a consequence of a waiver of jurisdiction by
the local State over persons and things within the
5. Principle of Passive Personality — then State latter’s territory, eg. foreign army stationed in the
exercise jurisdiction over crimes against its own local State (Nachura, Outline Reviewer in
nationals even of committed outside its territory. This Political Law, 2009, p. 673).
may be resorted to if the others are not applicable
(Id.). Rule on the Treatment of Aliens
Flowing from its right to existence and as an attribute of
Jurisdiction over land territory sovereignty, no State is under obligation to admit aliens.
The State exercises jurisdiction over everything found The State can determine in what cases and under what
within its terrestrial domain (Nachura, Outline Reviewer in conditions it may admit aliens (Nachura, Outline Reviewer
Political Law, 2009, p. 671). in Political Law, 2009 p. 692).
Jurisdiction over Maritime Territory 1. The State has the right to expel aliens from its
1. Over internal waters — the same jurisdiction over the territory through:
land area, since the internal waters are deemed a. Deportation — expulsion of an alien considered
assimilated in the land mass (Id.). undesirable by local state, usually but not
2. Over archipelagic waters — the same rule as internal necessarily to his own state (Id.).
waters, save for innocent passage of merchant b. Reconduction — forcible conveying of aliens
vessels through archipelagic sea lanes. Nachura, back to their home state without any formalities
Outline Reviewer in Political Law, 2009, p. 672) (Id.).
3. Over Territorial sea — criminal jurisdiction over 2. The alien must accept the institutions of local states
foreign merchant vessels shall be determined by the as he finds them (Id.).
application of either the English Rule or the French
rule. Innocent passage and involuntary entrance, the Responsibility of States in case of improper treatment of
distress on the vessel must be real. (Id) aliens
4. Over Contiguous Zone — the coastal State may State may be held liable for injuries and damages
exercise the control necessary to prevent sustained by the alien while in the territory of the state
infringement of its customs, fiscal, immigration and provided:
sanitary regulations and punish the said infringement. 1. The act or omission constitutes an international
(UNCLOS, Art. 2) delinquency (Nachura, Outline Reviewer in Political
5. Over EEZ — the coastal State has sovereign rights Law, 2009, p. 692;)
over the exclusive economic zone for purposes of 2. The act or omission is directly or indirectly
exploring and exploiting, conserving and managing imputable to the state(Nachura, Outline Reviewer in
the natural resources, whether living or non-living, of Political Law, 2009, p. 693);
the sea bed, the sub –soil and superjacent waters, as
well as the production of energy from the water, Direct Imputability — where the international
currents and winds. (UNCLOS, Art. 56) delinquency was committed by superior government
6. Over the continental shelf — the coastal State enjoys officials or organs like the chief of state or the national
the right of exploitation of oil deposits and other legislature, liability will attach immediately as their
resources in the continental shelf. acts may not be effectively prevented or reversed
under the constitution or laws of the state.
Jurisdiction over other territories (extra-territorial
jurisdiction) Indirect Imputability — where the offense is
committed by inferior government officials or by
private individuals, the state will be held liable only if,
23
by reason of its indifference in preventing or A fugitive from justice may be extradited only upon the
punishing it, it can be considered to have connived in authority of an extradition treaty between the requesting
effecting its commission. authority and the requested States.
3. Injury to the claimant state indirectly because Persons subject to extradition

of damage to its national (Id.). Those charged or convicted of offenses that are
extraditable under the terms of the extradition treaty
Conditions required for the enforcement of the Doctrine of between the requesting States where the crime was
State Responsibility committed and the requested State where the person
requested to be extradited has sought refuge.
1. The injured subject must first exhaust all local
remedies, except: Offenses subject to extradition
a. No remedies to exhaust (laws are intrinsically Those which are specifically listed in the extradition treaty
defective) to be extraditable (list-type extradition treaty) or which are
defined and punished as crimes under the laws of both
T REATMENT OF A LIENS the requesting and requested States (double criminality
clause).
b. Courts are corrupt Principle of Specialty

c. No adequate machinery A fugitive who is extradited may be tried only for the
d. Involves acts of states not subject to judicial crime specified in the request for extradition and
review included in the list of offenses in the treaty.
Calvo Clause — provision frequently inserted in
contracts where nationals of another state Non-list Type of Treaty
renounce any claim upon his national state for Offenses punishable under the laws of both states by
protection. But such waiver can be legally made imprisonment of one year or more are included
only by alien’s state (Nachura, Outline Reviewer among the extraditable offenses.
in Political Law, 2009, p. 694).
2. He must resort to diplomatic protection
EXTRADITION
The removal of an accused from the Philippines with the
object of placing him at the disposal of foreign authorities
to enable the requesting state or government to hold him
in connection with any criminal investigation directed
against him or the execution of a penalty imposed on him
under the penal or criminal law of the requesting state or
government (P.D. 1069 The Philippine Extradition Law,
Sec. 2 (a)).
Elements for the exercise of extradition:

1. Acts of sovereignty on the part of two States
2. A request by one State to another State for the
delivery to it of an alleged criminal; and
3. The delivery of the person requested for the purposes
of trial or sentence in the territory of the requesting
state.
Fundamental principles relating to extradition

Authority from which a fugitive from justice may be
extradited
Procedure for Extradition (Judicial and diplomatic process Entitlement to bail

of request and surrender) (RD-DUH-ADI): The time honored principle of pacta sunt servanda
demands that the Philippines honor its obligations under
Request through diplomatic representative
the Extradition Treaty entered into with the Hongkong
Special Administrative Region. Failure to comply with
these obligations is a setback in our foreign relations and
defeats the purpose of extradition. However, it does not
DFA forwards request to DOJ; necessarily mean that in keeping with its obligations, the
Philippines should diminish a potential extraditee’s rights
to life, liberty and due process. More so, where these
rights are guaranteed, not only by our Constitution, but
also by international conventions, to which the Philippines
DOJ files petition for extradition with RTC; is a party. We should not, therefore, deprive an extraditee
of his right to apply for bail, provided that a certain
standard for the grant is satisfactorily met (Government of
Hongkong Special Administrative Region v. Olalia, Jr,
G.R. No. 153675, April 19, 2007).
The judge must study the petition for
extradition and its supporting documents and An extradition proceeding being sui generis, the standard
make, as soon as possible, a prima facie
finding whether they are sufficient, in of proof required in granting or denying bail can neither be
compliance with the Extradition Treaty and the proof beyond reasonable doubt in criminal cases nor
Law and that the person sought is the standard of proof of preponderance of evidence in civil
extraditable.
cases – the potential extradite must prove by clear and
convincing proof that he is not a flight risk and will abide
with all the orders and processes of the extradition court.
(Government of Hongkong Special Administrative Region
Hearing (provide counsel de officio if v. Olalia, Jr, G.R. No. 153675, April 19, 2007).
necessary);
Rights of a person arrested and detained in another State:
(RCI)
1. Right to have his request complied with by the
receiving State to so inform the consular post of his
Appeal to CA within ten days whose decision
shall be final and executory; condition
2. Right to have his communication addressed to the
consular post forwarded by the receiving State
accordingly
3. Right to be informed by the competent authorities of
the receiving State without delay his rights as
Decision forwarded to DFA through the DOJ;
mentioned above (Article 36 par. 1, Vienna
Convention on Consular Relations).
The International Court of Justice has determined that

Article 36 par. 1 of the Vienna Convention on Consular
Individual placed at the disposal of the Relations, creates individual right for the detained person
authorities of requesting state costs and
expenses to be shouldered by requesting in addition to the rights accorded the sending States (La
state. Grand Case [Germany v. United States]).
(P.D. 1069)
REFUGEE
A person who, owing to a well-founded fear of being
persecuted for reasons of race, religion, nationality,
membership of a particular social group or political
opinion, is outside the country of his nationality, and is
unable or owing to such fear, ,is unwilling to avail himself
of the protection of that country; or who, not having a
nationality and being outside the county of his former
25
habitual residence, is unable, or owing to such fear, is within the territory and under its protection (Nachura,
unwilling to return to it (Convention Relating to the Status Outline Reviewer in Political Law, 2009,p. 697).
of Refugees, Art. 1.A[2]).
Principle on Asylum
Rights of refugees 1. Territorial Asylum — It exists only when stipulated in
1. Non-discrimination in relation to the nationals of the a treaty or justified by established usage (Id.)
State with respect to public relief and assistance (Art. 2. Diplomatic Asylum — This refers to the idea that a
23 Refugee Convention) or relating to aspects of diplomatic mission of a sending State has the right to
labour legislation and social security (Art. 24); offer protection to refugees present in the premises of
2. Right to association (Art. 15); the mission (Shah, Max Planck Encyclopedia of
3. Right to wage-earning employment (Art. 17); International Law, Diplomatic Asylum, 2007, par. 1).
4. Right to self-employment (Art. 18); Note: Generally, diplomatic aylum cannot be granted
5. Right to exercise liberal professions (Art. 19); except to members of the official or personal household of
6. Right to housing (Art. 21); diplomatic representatives. On humanitarian grounds,
7. Refugees having their habitual residence in the State however, refuge may be granted to fugitives whose lives
possess a non-discriminatory position concerning are in imminent danger from mob violence but only during
artistic rights and intellectual property (Art. 14); the period when active danger persist) (Nachura, Outline
8. Freedom of religion (Art. 4); Reviewer in Political Law, 2009 ed., p. 697).
9. Right to be issued identity papers (Art. 27);
10. They shall not be expelled save on grounds of
national security or public order (Art. 32 (1)); I NTERNATIONAL D ISPUTES AND
11. Free access to courts (Art. 16); S ETTLEMENTS
12. Right to same treatment as accorded to nationals with
respect to elementary education (Art. 22), and Dispute
13. The duty of non-refoulement obliges States not to A disagreement on point of law or fact, a conflict of legal
return refugees to a place where they risk being views or of interest or of interests between two
persecuted for a reason laid down in the Refugee international persons (Mavrommatis Palestine
Convention (Art. 33). Concessions Case [PCIJ, Series A. No. 2, pp. 11-12
(1924)]).
Principle of Non-Refoulement
This prohibits a state to return or expel a refugee to the Art. 33 of the UN Charter provide that the parties to any
territory where he escaped because his life or freedom is dispute shall first seek a solution through pacific or
threatened. The state is under obligation to grant amicable methods.
temporary asylum (Refugee Convention of 1951).
Classes of international disputes
Exception to the Principle of Non- Refoulment 1. Legal — if it involves justiciable rights based on law
The only circumstances in which the requested State may and fact, and
extradite a refugee within its jurisdiction to a country 2. Political — if it cannot be decided by an international
where they have a well-founded fear of persecution are arbitral or judicial tribunal under the rules of
those provided for in Article 33(2) of the 1951 Convention. international law (Coquia and Defensor, International
Law, 1998, p. 556).
In exceptional circumstances, the requested State may
also be justified in extraditing a person determined to be a Amicable methods of settling disputes: (MJN TRACE)
refugee in another State, if he or she manifestly comes (Art. 33 UN Charter)
within the scope of an exclusion clause of Article 1F of the 1. Mediation
1951 Convention, particularly commission of a serious 2. Judicial Settlement
crime which constitutes a danger to the community. The 3. Negotiation
application of Article 33(2) does not, however, entail the 4. Tender Of Good offices
loss of refugee status (Kapferer, The Interface Between 5. Resort to Regional Organizations
Extradition and Asylum, UNHCR Publications, 2003, Par 6. Arbitration
233 – 239). 7. Conciliation
8. Enquiry
Asylum
It is the power of the state to allow an alien who has Mediation
sought refuge from prosecution or persecution to remain
It is a process of settlement of a dispute undertaken by a agreement, binding on the parties to the dispute (Coquia
third State, a group of States, an individual, an agency, or and Defensor, International Law, 1998, p. 562).
an international organization (Coquia and Defensor,
International Law, 1998, p. 560). Conciliation
The process of conciliation involves a third-party
It is a means of peaceful settlement of disputes with the investigation of the basis of the dispute and the
Security Council, or the General Assembly, submission of a report embodying suggestions for a
recommending any member or agency as mediator (Art. settlement. As such it involves elements of both inquiry
10, 14, 36, UN Charter). and mediation, and in fact the process of conciliation
emerged from treaties providing for permanent inquiry
The mediator usually offers concrete proposals for commissions. Conciliation reports are only proposals and
settlement of substantive questions. The offer for solution as such do not constitute binding decisions. Conciliation
is no more than an advice, and under no condition shall it commissions have similar functions of investigating the
be considered as binding on the parties ( Coquia and dispute and suggesting terms of a possible settlement
Defensor, International Law, 1998, p.560). (International Dispute Settlement, p. 66)
Judicial Settlement Enquiry

Similar to the nature of proceedings and the binding The ascertainment of pertinent facts and issues in a
character of an arbitration proceeding, and the disputes dispute. However, the findings of the party making the
submitted for adjudication are legal, rather than political enquiry are not conclusive upon the disputing states but
(Coquia and Defensor, International Law, 1998, p.565). they nevertheless may exert a strong moral influence in
the settlement of the conflict. (Coquia and Defensor,
Negotiation International Law, 1998, p. 562).
The discussion undertaken by the parties themselves of
their respective claims and counterclaims with a view to
their just and orderly adjustments (Coquia and Defensor, Hostile methods of settling disputes: (SRR)
International Law, 1998, p. 559). (Nachura, Outline Reviewer in Political Law, 2009,p. 700)
1. Severance of diplomatic relations
The Court held in the North Sea Continental Shelf cases 2. Retorsion
that: “the parties are under an obligation to enter into Retaliation where acts complained of do not constitute
negotiations with a view to arriving at an agreement, and legal ground of offense but are rather in the nature of
not merely to go through a formal process of negotiation unfriendly acts done in pursuance of a legitimate state
as a sort of prior condition…they are under an obligation interest but indirectly hurtful to other states.
so to conduct themselves that the negotiations are 3. Reprisal
meaningful, which will not be the case when either of them Unlawful acts taken by one state in retaliation for
insists upon its own position without contemplating any reciprocal unlawful acts of another state.
modification of it” (North Sea Continental Shelf cases, ICJ
Reports, 1969, p. 3). Forms of reprisals:
a. Freezing the assets of the nationals of the other
Art. 40 of the United Nations require negotiation between state
the parties before the jurisdiction of the Security Council b. Embargo — the forcible detention or
can be invoked. sequestration of the vessels and other property
of the offending state
Tender of Good offices c. Pacific blockade — the intervention of entry to or
Where a third party, either alone or in collaboration with exit from the ports of the offending state of
others, offers to help in the settlement of a dispute. When means of communication and transportation
the offer is accepted there is supposed to be an exercise d. Non-intercourse — suspension of all intercourse
of good offices (Coquia and Defensor, International Law, with the offending state, particularly in matters of
1998, p.561). trade and commerce
e. Boycott — concerted suspension of commercial
Arbitration relations with the offending state, with particular
The solution of a dispute by an impartial third party usually reference to a refusal to purchase goods
a tribunal created by the parties themselves under a
charter known as a compromis. The proceedings are Role of the United Nations in case of reprisals
essentially judicial and the award is, by previous
27
In the event that none of the methods succeeds in settling representatives are allowed to return to their own
the dispute, or even if they are not employed, the countries;
Organization may be asked or may decide on its own 2. Treaties of political nature, such as treaties of
authority to take a hand in the settlement – it being alliance, are automatically cancelled, but those which
principally addressed to the Security Council, but may be are precisely intended to operate during war, such as
taken over by the General Assembly under conditions one regulating the conduct of hostilities, are activated.
(Nachura, Outline Reviewer in Political Law, 2009,p. 700- 3. Enemy public property found in the territory of
701). other belligerent at the outbreak of the hostilities is,
with certain exceptions, subject to confiscation.
Steps in settling disputes under the jurisdiction of Security Enemy private property may be sequestered, subject
Council to return or reimbursement after the war in
1. Security Council shall call on the parties to settle accordance with the treaty of peace.
disputes by peaceful means 4. Individuals are impressed with enemy character
2. If they are unable to settle their differences, Security (Nachura, Outline Reviewer in Political Law, 2009,p.
Council may recommend appropriate measures 702-703).
considering amicable measures already adopted by
the parties Participants in War
3. If the former fails, the Security Council may 1. Combatants — those
recommend such actual terms of settlement. This is who engage directly in the hostilities
in the nature of compulsory settlement. a. Non-Privileged — like spies, who, under false
4. When the terms are still rejected by the parties, the pretenses try to obtain vital information from
Security Council is empowered to take: enemy ranks, and who, when caught, are not
a. Preventive action — does not involve the use of considered as prisoners of war (Nachura, Outline
armed force; e.g. complete or partial interruption Reviewer in Political Law, 2009, p. 703).
of economic relations b. Privileged — when captured, enjoys the privilege
b. Enforcement action — action by air, sea or land of a prisoner of war (Id.).
forces such as demonstrations and blockades 2. Non-Combatants —
(Nachura, Outline Reviewer in Political Law, those who are not, such as women and children
2009,p. 701).
BASIC PRINCIPLES OF WAR
Doctrine of Military Necessity
W AR Belligerents may employ any amount and kind of force to
compel the complete submission of the enemy with the
Armed contention between two or more States, through least possible loss of lives, time and money; (Nachura,
their armed forces for the purpose of overpowering each Outline Reviewer in Political Law, 2009, p. 704).
other and imposing such conditions of peace as the
pleases (II Oppenheim- Lauterpacht, p.202). Limitations on Targets of Attack
Only military objectives are subject to attack by the armed
The policy of the Philippines as regards war: forces of a belligerent as a basic rule of warfare.
The Philippine renounces war as an instrument of national Likewise, certain places and objectives are not subject to
policy (Art. 2, par. 2 of the 1987 Constitution). attack, such as:
1. Neutralized areas or zones — these are zones in
Commencement of war the theater of operations established by special
1. With the declaration of war; agreement between the belligerents for treatment
2. With the rejection of an ultimatum; of the wounded and civilians (Article 15, Fourth
3. With the commission of an act of force regarded Geneva Convention).
by at least one of the parties as an act of war 2. Non-defended localities — inhabited places near
(Nachura, Outline Reviewer in Political Law, 2009,p. or in a zone where armed forces are in contact
702). and which are open for occupation by the
adverse party to avoid hostilities and destruction
Effects of outbreak of war (Articles 59 and 85(3) of Additional Protocol I).
The laws of peace cease to regulate the relations of the 3. Cultural property and places of worship (Article
belligerents and are superseded by the laws of war; 53 of Additional Protocol I for IAC, Article 16 of
1. Diplomatic and consular relations between the Additional Protocol II for NIAC and ICRC
belligerents are terminated, and their respective Customary Rule 38).
4. Civil defense — includes personnel, buildings treason, are suspended; municipal law remain in force
and assets, clearly indicated by a blue triangle on (Laurel v. Misa, G.R. No. L-409 August 30, 1947).
an orange background distinctive sign.
5. Dangerous installations — dams, dikes, or Rights and duties of belligerent occupant:
nuclear electric plants (Articled 56 of Additional 1. Re-establish or continue the processes of orderly
Protocol I and Article 15 of Additional Protocol administration, including enactment of laws
II). 2. Adopt measures to protect inhabitants
6. Civilians and persons hors de combats — 3. Requisition of goods and services in non-military
persons hors de combat are those who are either projects
wounded or, for other reasons, have permanently 4. Demand taxes and contributions to finance military
joined the civilian population. and local administrative needs
7. Parachutists — those who bail out from aircrafts 5. Issue legal currency
in distress. Must only be treated as POW. 6. Use enemy property, whether public or private, but
8. Hospitals, hospital ships and medical units – a private property is subject to indemnification or return
clear marking or a Red Cross to show their at the end of the war
status. (Republic v. Lara, G.R. No. L-5080, November 29,
9. Objects indispensable to the survival of the 1954).
Civilian Population — areas for the production of
foodstuffs, crops, raising of livestock, drinking Right of Angary
water installations and supplies and irrigation The right of a belligerent state, in cases of extreme
woks are protected against attacks (Article 54.2 necessity, to destroy or use neutral property on its own or
of Additional Protocol I for IAC and Article 14 of on enemy territory, or on the high sea (Nachura, Outline
Additional Protocol II for NIAC. Reviewer in Political Law, 2009,p. 705.)
Principle of Military Necessity NON-HOSTILE INTERCOURSE

The belligenrent may employ any amount of force to 1. Flag of Truce — white in color, indicates the desire to
compel the complete submission of the enemy with the communicate with the enemy; the agent, called
least possible loss of lives, time and money (Nachura, parlementaire, enjoys inviolability and is entrusted
Outline Reviewer in Political Law, 2009,p. 704). with the duty of negotiating with the enemy.
2. Cartels — agreements to regulate the intercourse
Principle of Humanity during the war, usually the exchange of prisoners of
Prohibits the use of weapons which cause indiscriminate war.
destruction or injury or inflict unnecessary pain or suffering 3. Passport — written permission given by the
(Id.). belligerent government to the subjects of the enemy
to travel generally in belligerent territory.
Principle of Chivalry 4. Safe-Conduct — permission given to an enemy
This principle requires the belligerents to give proper subject or to an enemy vessel allowing passage
warning before launching a bombardment or prohibit the between defined points.
use of perfidy in the conduct of hostilities. This principle 5. License to Trade — permission given by competent
does not prohibit espionage (Nachura, Outline Reviewer authority to individuals carry on trade through there is
in Political Law, 2009,p. 705.) a state of war (Nachura, Outline Reviewer in Political
Law, 2009,p. 706).
Belligerent occupation
It is the temporary military occupation of the enemy’s Termination of war
territory during the war. The occupant need not have its 1. Simple cessation of hostilities;
feet planted on every square foot of territory, provided it 2. Conclusion of a negotiated treaty of peace; and
maintains effective control and military superiority therein, 3. Defeat of one of the belligerents, followed by a
being able to send, in case of attack, sufficient forces to dictated treaty of peace or annexation of conquered
assert its authority within reasonable time (Tan Se Chiong territory (Nachura, Outline Reviewer in Political Law,
v. Director of Prisons, L-5920, June 25, 1955). 2009,p. 706-707).
Effect of belligerent occupation Postliminium

No change in sovereignty, but the exercise of the powers The revival or reversion to the old laws and sovereignty of
of sovereign is suspended. Political law, except the law on territory which has been under belligerent occupation
once control of the belligerent occupant is lost over the
29
territory affected (Co Kim Chan v. Valdez Tan Keh, G.R. (Nachura, Outline Reviewer in Political Law,
No. L-5, September 17, 1945). 2009,p. 708)
War criminal b. Doctrine of
He is any person, whether a civilian or a member of the Ultimate Consumption — goods intended for
armed forces of the state, who commits an act that civilian use which may ultimately find their way to
violates a rule of international law governing, armed and be consumed by belligerent forces, may be
conflicts (Id.). seized on the way (Id.).
c. Doctrine of
The Philippines had the authority to try war criminals after Infection — innocent goods shipped with
World War II (Kuroda v. Jalandoni, No. L-2662, March 26, contraband may also be seized (Id.).
1949). d. Doctrine of
Continuous Voyage/Continuous Transport —
It is the condition of a State that does not take part, goods immediately reloaded at an intermediate
directly or indirectly, in war between other states. port on the same vessel, or reloaded on another
vessel or other forms of transportation may also
be seized on the basis of doctrine of ultimate
N EUTRALITY consumption (Id.).
e. Unneutral
Neutrality v. Neutralization Service — acts of a more hostile character than
Neutrality Neutralization carriage of contraband or breach blockade,
Under what circumstances will it exist undertaken by a merchant vessel of a neutral
Dependent on state in the aid of any of the belligerents (Id.).
Result of treaty wherein 2. To prevent its territory from being used
attitude of neutral
duration and other by the belligerents in the conduct of hostilities
state, which is free to
conditions are agreed (Nachura, Outline Reviewer in Political Law,
join either of
upon by neutralized state 2009,p.709); and
belligerents any time
and other states 3. To acquiesce in certain restrictions and
it sees fit
What laws will govern limitations that the belligerents may find necessary to
impose, especially in connection with international
Governed by laws of Governed by
commerce (Id.).
nations agreements neutralization agreement
When applicable
Duties of belligerents
Obtains only during Intended to operate in
1. To respect the status of the neutral state;
war times of peace and war
2. To avoid any act that will directly or indirectly
(Nachura, Outline Reviewer in Political Law, 2009,p. 707) involve it in their conflict and submitting to any lawful
measure it may take to maintain or protect its
Duties of neutral states neutrality.
1. To abstain from taking part in the
hostilities and from giving assistance to either Blockade
belligerent; It is a hostile operation by which the vessels and aircraft of
a. Contraband one belligerent prevent all other vessels, including those
— refers to goods which, although neutral of neutral states, from entering or leaving the ports or
property, may be seized by a belligerent because coasts of the other belligerent, the purpose being to shut
they are useful for war and are bound for a off the place from international commerce and
hostile destination. communication with other states (Coquia and Defensor,
i. Abs International Law, 1998, p. 597).
olute — useful for war under all
circumstances (guns, ammunition) To be valid, the blockade must be: (BEELI)
ii. Con 1. Binding and duly communicated to neutral states;
ditional — have both civilian and military 2. Effective and maintained by adequate forces;
utility (clothing, food) 3. Established by a competent authority of the
iii. Fre belligerent government;
e list — exempted from the law on 4. Limited only to the territory of the enemy; and
contraband for humanitarian purposes 5. Impartially applied to all states
(medicine)
e. Right to equal protection of the law

I NTERNATIONAL H UMAN R IGHTS (Article 7)
L AW f. Right to an effective remedy by the
competent national tribunals (Article 8)
g. Freedom from arbitrary arrest, detention
The International Bill of Rights is composed of the: or exile (Article 9)
A. Universal Declaration of Human Rights h. Right to a fair and public hearing by an
B. International Convention on Civil and Political Rights independent and impartial tribunal (Article 10)
(ICCPR) i. Right to be presumed innocent until
C. International Convention on Economic, Social and proved guilty (Article 11)
Cultural Rights (ICESCR) j. Freedom from arbitrary interference with
his privacy, family, home or correspondence
A. UNIVERSAL DECLARATION OF HUMAN RIGHTS (Article 12)
(UDHR) k. Freedom of movement and residence
The UDHR was adopted by the United Nations General within the borders of each state, and the right to
Assembly on December 10, 1948 at Palais de Chaillot, leave any country, including his own, and to return
Paris. It is not a legally binding treaty but a mere to his country (Article 13)
declaration or statement of generally accepted principles l. Right to seek and to enjoy in other
of human rights (Humphrey, The Universal Declaration of countries asylum from persecution (Article 14)
Human Rights: Its History, Impact and Juridical Character, m. Right to a nationality (Article 15)
1979). n. Right to marry and to found a family
(Article 16)
It is proclaimed “as a common standard of achievement o. Right to own property alone as well as
for all peoples and all nations, to the end that every in association with others (Article 17)
individual and every organ of society, keeping this p. Freedom of thought, conscience and
Declaration constantly in mind, shall strive by teaching religion (Article 18)
and education to promote respect for these rights and q. Freedom of opinion and expression
freedoms and by progressive measures, national and (Article 19)
international, to secure their universal and effective r. Freedom of peaceful assembly and
recognition and observance, both among the peoples of association (Article 20)
Member States themselves and among the peoples of s. Right to take part in the government of
territories under their jurisdiction” (Preamble, UDHR). his country, directly or through freely chosen
representatives; right of equal access to public
All human beings are born free and equal in dignity and service in his country (Article 21)
rights. They are endowed with reason and conscience and
should act towards one another in a spirit of brotherhood 2. Second Generation Rights (Economic, Social and
(Article 1, UDHR). Cultural Rights)
Everyone is entitled to all the rights and freedoms set forth Everyone, as a member of society, has the right to social
in this Declaration, without distinction of any kind, such as security and is entitled to realization, through national
race, color, sex, language, religion, political or other effort and international co-operation and in accordance
opinion, national or social origin, property, birth or other with the organization and resources of each State, of the
status (Article 2, UDHR). economic, social and cultural rights indispensable for his
dignity and the free development of his personality (Article
Fundamental Rights and Freedoms 22, UDHR).
1. First Generation Rights (Civil and Political Rights)
a. Everyone has the right to life, liberty and a. Right to work, to free choice of employment, to just
security of person (Article 3) and favorable conditions of work, to protection
b. Freedom from slavery or servitude against unemployment, to equal pay for equal work,
(Article 4) to just and favorable remuneration, and the right to
c. Freedom from torture or to cruel, form and join trade unions for the protection of his
inhuman or degrading treatment or punishment interests (Article 23)
(Article 5) b. Right to rest and leisure (Article 24)
d. Right to recognition everywhere as a c. Right to a standard of living adequate for the health
person before the law (Article 6) and well-being of himself and of his family (Article 25)
31
d. Right to education (Article 26) j. Protection of minorities
e. Right freely to participate in the cultural life of the
community, to enjoy the arts and to share in scientific Limitation on the exercise of rights under the ICCPR
advancement and its benefits (Article 27) In time of public emergency which threatens the life of the
Limitations in the exercise of rights under the UDHR nation and the existence of which is officially proclaimed,
In the exercise of his rights and freedoms, everyone shall the States Parties to the present Covenant may take
be subject only to such limitations as are determined by measures derogating from their obligations under the
law solely for the purpose of securing due recognition and present Covenant to the extent strictly required by the
respect for the rights and freedoms of others and of exigencies of the situation, provided that such measures
meeting the just requirements of morality, public order and are not inconsistent with their other obligations under
the general welfare in a democratic society (Article 29 [2]). international law and do not involve discrimination solely
These rights and freedoms may in no case be exercised on the ground of race, color, sex, language, religion or
contrary to the purposes and principles of the United social origin (Article 4(1), ICCPR).
Nations (Article 29 [3]).
Rights which may NOT be derogated:
B. INTERNATIONAL CONVENTION ON CIVIL AND a. Article 6: Right to life
POLITICAL RIGHTS (ICCPR) b. Article 7: Freedom from torture and other inhuman
The ICCPR was adopted and opened for signature, punishment
ratification and accession by the UN General Assembly c. Article 8 (par. I and 2): freedom from enslavement or
Resolution 2200 (XXI) of December 16, 1966. It entered servitude
into force on March 23, 1976. d. Article 11: Protection from imprisonment for inability
to fulfill contractual obligations
Self-determination of Peoples e. Article 15: Protection from ex post facto laws
All peoples have the right of self-determination. By virtue f. Article 16: Right to recognition everywhere as a
of that right they freely determine their political status and person before the law
freely pursue their economic, social and cultural g. Article 18: Freedom of thought, conscience and
development (Article 1 (1), ICCPR). religion
Two important rights covered by the right of self- Optional Protocols to ICCPR
determination: 1. First Optional Protocol — enables the eighteen-
member Human Rights Committee set up under the
1. Right they freely determine their political status and ICCPR to receive and consider complaints from
freely pursue their economic, social and cultural individuals claiming to be victims of violations of any
development (Article 1(1)) and rights set forth in the ICCPR.
2. Right, for their own ends, freely dispose of their 2. Second Optional Protocol — aimed at the abolition of
natural wealth and resources without prejudice to any the death penalty.
obligations arising out of international economic co-
operation, based upon the principle of mutual benefit, C. INTERNATIONAL CONVENTION ON ECONOMIC,
and international law. In no case may a people be SOCIAL AND CULTURAL RIGHTS (ICESCR)
deprived of its own means of subsistence (Article The ICESCR was adopted and opened for signature,
1(2)). ratification and accession by the U. N. General Assembly
Resolution 2200 (XXI) of December 16, 1966. It entered
Substantive rights treated in the covenant are found in into force on January 3, 1976.
Article 1 and Articles 6 to 27; these include, among others: Substantive rights treated in the covenant are found in
a. Right of Self-determination Article 6 to 15; these include, among others:
b. Right to life, liberty and property a. Right to work and favorable conditions of work
c. Right to equality b. Right to form free trade union
d. Freedom from torture and ill-treatment c. Right to social security and insurance
e. Right to adequate prison conditions d. Right to special assistance for families
f. Freedom of movement e. Right to adequate standards of living
g. Recognition and protection of legal personality, f. Right to highest standard of physical and mental
and privacy health
h. Freedom of thought, conscience, religion and g. Right to education
expression h. Right to enjoyment of cultural and scientific
i. Freedom of association benefits
1. Parties to armed conflict are prohibited from

Limitation in the exercise of rights under ICESCR employing weapons or means of warfare that cause
The State may subject such rights only to such limitations unnecessary damage or excessive suffering.
as are determined by law only in so far as this may be 2. Parties to armed conflict shall distinguish between
compatible with the nature of these rights and solely for civilian populace from combatants and spare the
the purpose of promoting the general welfare in a former from military attacks.
democratic society (Article 4, ICESCR). 3. Persons hors de combat and those who do not take
part in hostilities shall be protected and treated
I NTERNATIONAL H UMANITARIAN humanely without any adverse distinction.
L AW 4. It is prohibited to kill or injure an enemy who
surrenders or who is a hors de combat.
5. The wounded and the sick shall be protected and
INTERNATIONAL HUMANITARIAN LAW (IHL) cared for by the party who is in custody of them.
The body of international rules, established by treaties or 6. Parties who captured civilians and combatants shall
custom, which are specifically intended to solve respect their right to life, dignity, conviction and other
humanitarian problems directly arising from international personal rights.
or non-international armed conflicts and which, for
humanitarian reasons, limit the right of parties to a conflict CATEGORIES OF ARMED CONFLICTS
to use the methods and means of warfare of their choice Armed conflict
or protect persons and property that are, or may be, An armed conflict exists whenever there is a resort to
affected by conflict (ICRC, Advisory Service on armed force between States or protracted armed violence
International Humanitarian Law). between governmental authorities and organized armed
groups or between such groups within a state (ICTY,
It does not apply to incidents or acts of terrorism unless Prosecutor v. Tadic, Case No. IT-94-1-AR72, AC, 2
they fall within the characterization of an international October 1995).
armed conflict under Art. 2 Common to the Four Geneva
Conventions; or of non-international or internal armed 1. International Armed Conflicts (IAC)
conflict under common Art. 3 of the Geneva Convention All cases of declared war or of any other armed conflict
and under Art. 1 of Additional Protocol II. which may arise between two or more States which are
parties to the Conventions, even if the State of war is not
International Human Rights Law v. International recognized by one of them and all cases of partial or total
Humanitarian Law occupation of the territory of a State Party, even if the said
International Human International Humanitarian occupation meets with no armed resistance.
Rights Law Law
To whom applicable International armed conflicts are governed by the Geneva
Governs armed conflict, Conventions and Additional Protocol I. (Common Article 2
regulating the means and of the Geneva Convention, 1949)
Governs the relations
methods of warfare and
between the State and the
providing protection to 2. Internal or Non-International Armed Conflict
individual.
victims of the armed These are conflicts which are restricted to the territory of a
conflict. single State, involving either regular armed forces fighting
When applicable groups of armed dissidents, or armed groups fighting each
Applies at all times (peace Applies only in times and other. They are governed by the Common Article 3 to the
and war) and in all places places of armed conflict four Geneva Conventions and by the Additional Protocol II
Purpose (Sarmiento, PIL Bar Reviewer (2009) p.266).
Aims to protect civilians
Being tailored primarily for Test for determining the existence of an internal armed
and those who do not or
peacetime, applies to all conflict: Whether there is a resort to armed force between
are no longer taking part
persons. states or protracted armed violence between
in the hostilities
governmental authorities and organized armed groups or
FUNDAMENTAL PRINCIPLES UNDER INTERNATIONAL between such groups within a State (Tadic Jurisdiction
HUMANITARIAN LAW Decision, ICTY-IT-AR72, October 2, 1995).
3. Internationalized Armed Conflict
33
In case of an internal armed conflict breaking out on the a. The civilian population as such as well as individual
territory of a State, it may become international if: civilians shall not be the object of attack. Acts or
a. Another state intervenes in that conflict through its threats of violence the primary purpose of which is
troops; and to spread terror among the civilian population are
b. Some participants of such internal armed conflict prohibited;
act on behalf of the other state (Prosecutor vs. b. Attacks against the civilian population or civilians
Tadic, ICTY 1995). by way of reprisals are prohibited (Protocol I,
4. War of National Liberation Article 51).
It is a conflict in which peoples are fighting against colonial Prisoners of War
domination and alien occupation and against racist Prisoners of war are entitled to the following basic
regimes in the exercise of their right of self-determination, protections:
as enshrined in the U.N. Charter and the Declaration of a. They may only be transferred by the Detaining
Principles of International Law concerning friendly Power to a Power which is also a party to the
relations and co-operation among States in accordance Geneva Convention III. (Geneva Convention III,
with the U.N. Charter (Sarmiento, PIL Bar Reviewer Article 12);
(2009) p.267). b. They must at all times be humanely treated. No
prisoner of war may be subjected to physical
Martens Clause mutilation or to medical or scientific experiments of
A clause which states “in cases not covered by this any kind which are not justified by the medical,
Protocol or by any other international agreements, dental or hospital treatment of the prisoner
civilians and combatants remain under the protection and concerned and carried but in his interest. They
authority of the principles of international law derived from must at all times be protected, particularly against
established custom, from the principles of humanity and acts of violence or intimidation or insults and public
from the dictates of public conscience” (Art. 1, par. 2, curiosity. Measures of reprisals against prisoners of
Protocol Additional to the Geneva Conventions of 12 war are prohibited. (Article 13);
August 1949). c. They shall be free of charge for their maintenance
and for medical attention required by their State of
A person is hors de combat if: (PIE) health (Article 15);
1. He is in the power of an adverse party [to the conflict] d. They shall be treated alike by the Detaining Power,
2. Incapable of defending himself provided he abstains without any adverse distinction based on race,
from any hostile act and does not attempt to escape. nationality, religious belief, or political opinions, or
3. He clearly expresses an intention to surrender any other distinction founded on similar criteria
(Article 16);
TREATMENT OF CIVILIANS e. Women shall be treated with all regard due to their
sex and shall in all cases benefit by treatment as
Civilian favorable as granted to men. (Article 14); and
A civilian is any person who does not belong to armed f. Women shall be held in quarters separated from
force and who is not a combatant. In case of doubt on men’s quarters. They shall be under immediate
whether a person is a civilian, that person shall be supervision of women. Nevertheless, in cases
considered to be a civilian (Art. 4Third Geneva where families are detained or interned, they shall,
Convention, 1949 and Article 43, Protocol I, 1977). whenever possible, be held in the same place and
accommodated as family units (Protocol I, Article
Civilian population 75 [5]).
The civilian population comprises all persons who are
civilians. The presence within the civilian population of Rights of a Prisoner of War:
individuals who do not come within the definition of 1. To be treated humanely;
civilians do not deprive the population of its civilian 2. Not subject to torture;
character (Protocol I, Article 50). 3. Allowed to communicate with his family;
4. Receive food, clothing, religious articles,
The civilian population and individual civilians shall enjoy medicine;
general protection against dangers arising from military 5. Bare minimum of information;
operations. To give effect to this protection, the following 6. Keep personal belongings;
rules, which are additional to other applicable rules of 7. Proper burial;
International Law, shall be observed in all circumstances: 8. Group according to nationality;
9. Establishment of an information bureau;
10. Repatriation for the sick and wounded (1949 that the gravest international crimes do not go unpunished
Geneva Convention). (Art. 1, Rome Statute).
International crime Rome Statute

It is such act universally recognized as criminal, which is It established the International Criminal Court. The
considered a grave matter of international concern and for Philippines is not yet a party to the Statutes. While then
some valid reason cannot be left within the exclusive Philippine Mission to the United Nations, through Charge
jurisdiction of the State that would have control over it d’Affairs Enrique Manalo, signed the Rome Statute on
under ordinary circumstances (US Military Tribunal at December 28, 2000, the same was however not signed by
Nuremberg, February 19, 1948). the President and submitted to the Senate for ratification.
Without ratification, the Philippines cannot be a party to
GENERAL PRINCIPLES OF ICL the Statute. In fact Art. 125(2) of the Statute provides that
1. Principle of Legality — an individual may only be it is subject to ratification, acceptance or approval by
criminally liable and punished of an act which is signatory states (Pimentel v. Office of the Executive
declared by international law as criminal offense. Secretary, G.R. No. 158088, July 6, 2005).
2. Principle of Non-Retroactivity — no person shall be Jurisdiction of the ICC

criminally responsible under a law which defines as a 1. The crimes of genocide
crime an act committed prior to its enactment. 2. Crimes against humanity
3. War crimes
3. Principle of ne bis in idem (not twice for the same) — 4. The crimes of aggression
no same individual shall be punished and tried more
than once for the same offense. MAIN JURISDICTIONAL RULES GOVERNING ICC
The Rome Statute provides for the following rules on
4. Principle of Individual Criminal Liability — an jurisdiction:
individual who commits a crime under international 1. Jurisdiction ratione material — ICC jurisdiction is only
law individually liable for punishment, without any limited to those crimes under its jurisdiction
distinction based on official capacity. 2. Jurisdiction ratione temporis — ICC has jurisdiction
only with crimes committed after the entry into force
5. Principle of Superior Responsibility (Respondeat of its Statute (July 1, 2002).
Superior) — a superior is held criminally liable for 3. Jurisdiction ratione loci — ICC has jurisdiction over
failure to prevent subordinates from committing crimes committed in the territory of States Parties,
unlawful acts, in view of his command and control without respect to the nationality of the offender.
over them and liable as well for their crimes. 4. Jurisdiction ratione personae — ICC has jurisdiction
(Prosecutor v Celebeci) over the nationals of a state party as to crimes within
the ICC’s jurisdiction.
6. Principle of Mens Rea — the material elements of a
crime must be committed with intent and knowledge Note: Trial in absentia is not allowed under the ICC rules
(Prosecutor v Tadic (1999) Case No. IT-94-1-A (ICTY (Art. 63, Rome Statute).
Appeals Chamber).
R ECOGNIZED C RIMES U NDER
A person has intent where: I NTERNATIONAL L AW
1. In relation to conduct, that person means to engage
in the conduct
2. In relation to a consequence, that person means to GENOCIDE
cause that consequence or is aware that it will occur A denial of the right of existence of entire human groups,
in the ordinary course of event. as homicide is the denial of the right to live of individual
Knowledge means awareness that a circumstance exists human beings (UN General Assembly Resolution No.
or a consequence will occur in the ordinary course of 96(1)).
events.
Elements of genocide:
INTERNATIONAL CRIMINAL COURT (ICC) 1. Intent to destroy, in whole or in part, a national,
It is the first permanent treaty based, international criminal ethnical, racial, or religious group;
court established to promote the rule of law and ensure 2. Commission of the following acts:
a. Killing members of the group;
35
b. Causing serious bodily or mental harm to members f. Torture
of the group; g. Rape and other forms of sexual violence
c. Deliberately inflicting on the group conditions of life h. persecution
calculated to bring about its physical destruction in 2. Committed against any civilian population;
whole or in part; 3. Perpetrator intentionally directs such attacks on the
d. Imposing measures intended to prevent births civilian population.
within the group;
e. Forcibly transferring children of the group to WAR CRIMES
another group. A war crime is a serious violation of the laws and customs
Notes: applicable in armed conflict which gives rise to individual
Killings committed by a single perpetrator are enough to criminal responsibility.
establish the material element of the crime of genocide
and it is possible to conceive that the accused harbored The law on war crimes is primarily hinged on the
the plan to exterminate an entire group without this intent customary laws of just war and the governing Geneva
having been supported by any organization in which other Conventions which provide rules and parameters for
individuals participated (Prosecutor vs. Jelisic, ICTY waging a war.
1999).
General acts punishable as war crimes
CRIMES AGAINST HUMANITY 1. Violence and mistreatment of non-combatants
A crime against humanity involves the commission of (including prisoners of war, civilians, the wounded,
certain inhumane acts, such as murder, torture, rape, and the sick);
sexual slavery, persecution, and other acts, under a 2. Attacks on prohibited targets;
certain context: they must be part of a widespread or
systematic attack directed against a civilian population Principle of Distinction
(Cryer, et al. An Introduction to International Criminal Law A customary rule in IHL that requires belligerents to
and Procedure. 2010). distinguish between military objectives and the
population and objects, and to direct their operations
Crimes against humanity v. War crimes only against military objectives (Article 48, 51 and 52
Crimes Against Humanity War Crimes of Additional Protocol I, ICRC Customary Rule 1).
When it may be committed
May occur even in the Military objectives
May only occur during an These include combatants, whether on or off duty, as
absence of an armed
armed conflict. well as objects, which by their nature, make an
conflict.
Additional requisite effective contribution to military action and whose
Requires a context of total or partial destruction, capture, or neutralization,
Does not require such in the circumstances ruling the time, offers a definite
widespread or systematic
context. military advantage.
commission.
Coverage
Focused on the protection Focuses on protecting 3. Inflicting excessive civilian damage
of victims regardless of ‘enemy’ nationals or
their nationality or persons affiliated with the Proportionality Principle
affiliation. other party to the conflict. Even where the attack is directed against a military
Nature objective, the anticipated incidental civilian damage
Concerns actions directed Regulates conduct even must not be disproportionate to the anticipated
primarily against civilian on the battlefield and military advantage (Article 51, 5 of Additional Protocol
populations. against military objectives. I, ICRC Customary Rule 14, Prosecutor vs.
Kupreskic, ICTY 2000).
Elements of crimes against humanity:
1. Widespread or systematic attack such as: 4. Destruction, appropriation, seizure, and pillage of
a. Murder; property; and
b. Enslavement
c. Extermination 5. Use of prohibited weapons and methods of warfare.
d. Forcible transfer
e. Imprisonment R.A. 9851
[Philippine Act on Crimes against International 1. INTERNAL OR NATIONAL WATERS — bodies of

Humanitarian Law, Genocide and Other Crimes Against water within the land mass, among them are:
Humanity (December 11, 2009)] (Nachura, Outline Reviewer in Political Law, 2009,
The State adopts the generally accepted principles of p.664)
international law, including the Hague Conventions of a. Rivers — which may be national, boundary or
1907, the Geneva Conventions on the protection of international
victims of war and international humanitarian law, as part
of the law of our nation. Thalweg Doctrine — for boundary rivers, in the
absence of an agreement between the riparian
Jurisdiction over war crimes states, the boundary line is laid on the middle of
The State shall exercise jurisdiction over persons, whether the main navigable channel.
military or civilian, suspected or accused of a crime
defined and penalized in this Act, regardless of where the Middle of the Bridge Doctrine — where there is a
crime is committed, provided, any one of the following bridge over a boundary river, the boundary line is
conditions is met: the middle or center of the bridge.
1. The accused is a Filipino
citizen b. Bays and gulfs — a bay is a well-marked
2. The accused, regardless indentation in the coast the area of which at least
of citizenship or residence, is present in the is as large or larger than, that of the semi-circle
Philippines whose diameter is a line drawn across its mouth.
3. The accused has
committed the said crime against a Filipino c. Strait — Narrow passageways connecting two
citizen bodies of water. If the distance between the two
opposite coasts is not more than six miles, they
I NTERNATIONAL L AW ON are considered internal.
T ERRORISM d. Canals — the most famous are the Suez Canal,
which is neutralized and the Panama Canal,
Terrorism which is open to everyone in times of war or
It is any act of violence or threat thereof notwithstanding peace.
its motives or intentions perpetrated to carry out an
individual or collective criminal plan with the aim of 2. ARCHIPELAGIC WATERS — the waters enclosed by
terrorizing people or threatening to harm them or the archipelagic baselines, regardless of their depth
imperiling their lives, honor, freedoms, security or rights or or distance from the coast (Art. 49(1), drawn in
exposing the environment or any facility or public or accordance with Art. 47, UNCLOS).
private property to hazards or occupying or seizing them,
or international facilities, or threatening the stability, Sovereignty of the archipelagic state extends to
territorial integrity, political unity or sovereignty of archipelagic waters, but is subject to the right of
independent States (Article 1, Convention of Organization innocent passage for the ships of all states. Its
of Islamic Conference on Combating International sovereignty also extends to the superjacent air space
Terrorism at Ouagadougou [July 1, 1999]). of the archipelagic waters, subjacent seabed and
subsoil and the resources contained therein (Art. 49,
The international community has not yet achieved an UNCLOS).
agreement as to the generally accepted definition of
“terrorism” for the purpose of formulating it as an UNCLOS III and RA 9522 not incompatible with the
international crime under an international convention Constitution’s delineation of internal waters
(Magallona, p. 351).
Whether referred to as Philippine “internal waters” under
Terrorist acts can be prosecuted in an international court Article I of the Constitution or as “archipelagic waters”
at present only if they amount to war crimes or crimes under UNCLOS III (Article 49 [1]), the Philippines
against humanity. exercises sovereignty over the body of water lying
landward of the baselines, including the air space over it
L AW ON THE SEA and the submarine areas underneath.
37
The fact of sovereignty, however, does not preclude the shall have no exclusive economic zone or continental
operation of municipal and international law norms shelf (Art 121, UNCLOS).
subjecting the territorial sea or archipelagic waters to
necessary, if not marginal, burdens in the interest of Straight Archipelagic Baselines
maintaining unimpeded, expeditious international Archipelagic states may draw straight baselines by
navigation, consistent with the international law principle joining the outermost points of the outermost islands
of freedom of navigation. and drying reefs of the archipelago, provided that
within such baselines are included the main islands
Thus, domestically, the political branches of the Philippine and an area in which the ratio of the area of the water
government, in the competent discharge of their to the area of the land, including atolls is between 1-1
constitutional powers, may pass legislation designating and 9-1 (Art. 47 (1), UNCLOS).
routes within the archipelagic waters to regulate innocent
and sea lanes passage (Prof. Merlin M. Magallona, et al. Archipelagic sea lanes
vs. Eduardo Ermita, et al., G.R. No. 187167, August 16, It means the exercise in accordance with the Law of
2011). the Sea Convention of the rights of navigation and
over flight in the normal mode solely for the purpose
of continuous, expeditious and unobstructed transit
Archipelago between one part of the high seas or an exclusive
A group of islands, including parts of islands, inter- economic zone and another part of the high seas or
connecting waters, and other natural features which are exclusive economic zone (UNCLOS, Article 53 (3)).
closely interrelated in such islands, waters and other
natural features which form an intrinsic geographical, An archipelagic State may designate sea lanes and
economic and political entity or which historically have air routes there above, suitable for continuous and
been regarded as such (Art. 46(b), UNCLOS). expeditious passage of foreign ships and aircraft
Two kinds of archipelago: through or over its archipelagic waters and adjacent
a. Coastal — situated so close to a to its territorial sea. All ships and aircraft enjoy the
mainland that they may be considered a part right of archipelagic sea lanes passage in such sea
thereof forming more or less an outer coastline lanes and air routes (UNCLOS, Article 53 (1, 2)).
from which it is natural to measure the marginal
seas, e.g. Norwegian "Skjaergard," coasts of Limitations and rules in drawing archipelagic
Finland, Sweden, and certain stretches on the baselines:
coasts of Alaska and Canada (Ocean States: a. Ratio of the area of the water to the area of the
Archipelagic Regimes in the Law of the Se 1995, land, including atolls, is between 1-1 and 9-1;
p. 15). b. Length of such baselines shall not exceed 100
. nautical miles, except that up to 3% of the total
b. Outlying (Mid-ocean) — situated in the number of baselines enclosing any archipelago
ocean at such distance from the coasts of firm may exceed that length, up to a maximum length
land as to be considered as an independent of 125 nautical miles;
whole rather than forming part of or outer c. The drawing of such baselines shall not depart to
coastline of the mainland, e.g. Faeroes, Fiji any appreciable extent from the general
Islands, Galapagos, Hawaiian Islands, Indonesia, configuration of the archipelago;
Japan, Philippines, Solomon Islands, the d. The system of such baselines shall not be
Svalbard archipelago (Ocean States: applied by an archipelagic state in such a
Archipelagic Regimes in the Law of the Se 1995, manner as to cut off from the high seas or the
p. 22). EEZ of the territorial sea of another State (Art.47,
UNCLOS).
Archipelagic State
A state made up wholly of one or more archipelagos. 3. TERRITORIAL SEA — the belt of the sea located
It may include other islands (Art. 46(a), UNCLOS). between the coast and internal waters of the coastal
state on the one hand and the high seas on the other,
Regime of Islands Doctrine extending up to 12 nautical miles from the low-water
An island is a naturally formed area of land, mark, or in the case of archipelagic states, from the
surrounded by water, which is above water at high baselines.
tide. But under this doctrine, rocks which cannot
sustain human habitation or economic life of their own Baseline
The low-water mark along the coast from which the belt iv. May not be applied by state in such a
of the territorial sea is measured (Art. 3, UN Convention manner as to cut off the territorial sea of
on the Laws of the Sea; Fisheries Case [U.K. v. another state from the high seas or an
Norway], ICJ, December 18, 1951). It is a line from exclusive economic zone ((Art. 7(6),
which the breadth of the territorial sea, the contiguous UNCLOS); and
zone and the exclusive economic zone is measured in
order to determine the maritime boundary of the coastal v. State must clearly indicate the lines on
state. charts or lists of geographical coordinates to
which ‘due publicity’ must be given and shall
Types of Baseline: deposit a copy of each such chart or list with
a. Normal Baseline method — the territorial sea is the Secretary-General of the United Nations
simply drawn from the low-water mark of the coast, to (Art. 16, UNCLOS).
the breadth claimed, following its sinuousness and
curvatures but excluding the internal waters in the Note: As applied in the Fisheries Case (U.K. v.
bays and gulfs (Art 5, UNCLOS). Norway, December 18, 1951) culmination of a
dispute, originating in 1933, over how large an
b. Straight Baseline method — where the coastline area of water surrounding Norway was
is deeply indented and cut into, or if there is a Norwegian waters (that Norway thus had
fringe of islands along the coast in its immediate exclusive fishing rights to) and how much was
vicinity, the method of straight baselines joining 'high seas' (that the UK could thus fish). The ICJ
appropriate points may be employed in drawing decided that Norway's claims to the waters were
the baseline from which the breadth of the not inconsistent with international laws
territorial sea is measured (Art. 7, UNCLOS). concerning the ownership of local sea-space.
Limitations on the Use of Straight Baselines : Right of Innocent Passage

(UNCLOS 1982, as Churchhill & Lowe, The Law of This allows a foreign merchant or public vessel to pass
the Sea, 1988 p. 30) thru the maritime zone of the littoral state provided:
a. That the passage is really “innocent” (i.e. there
i. Must not depart to any appreciable extent must be no ulterior motive for the passage, it is not
from the general direction of the coast; The prejudicial to the peace, good order or security of
sea areas lying within the straight baselines the coastal state and all the regulations of state
must be sufficiently close to the land domain concerned are complied with);
to be subject to the regime of internal waters b. That there in only a “passage”
(Art 7[3]; i. traversing that sea without entering internal
waters or calling at a roadstead or port facility
ii. Straight baselines shall not be drawn to and outside internal waters; or
from low-tide elevations, unless lighthouses ii. proceeding to or from internal waters or a call
or similar installations which are at such roadstead or port facility (Art. 18(1),
permanently above sea level have been built UNCLOS; Paras, International Law and World
on them, and unless the baselines to and Politics, p. 304).
from low-tide elevations have received
general international recognition (Art. 7(4), Delayed or continuous passage:
UNCLOS); As a rule, passage must be continuous and expeditious,
although a ship is allowed to stop and anchor if:
iii. Where the method of straight baselines is a. it is incidental to ordinary navigation,
used in case of localities where the coastline b. it is rendered necessary by force majeure or
is indented and cut into, or if there is a fringe distress, and
of islands along the coast in its immediate c. It is required in order to assist persons, ships or
vicinity (Art. 7(1), UNCLOS), account may aircraft in danger or distress (Art. 18(2),
be taken, in determining particular baselines, UNCLOS).
of economic interests peculiar to the region
concerned, the reality and the importance of Right of innocent passage through archipelagic waters
which are clearly evidenced by long usage Ships of all States enjoy the right of innocent passage
(Art. 7(5), UNCLOS); through archipelagic waters, in accordance with Part II,
section 3 (Art.52(1), UNCLOS). However, this right is
39
not available inside the closing lines within the Innocent passage v. transit passage
archipelagic waters which had been drawn for the Innocent Passage Transit Passage
delimitation of internal waters. Coverage
Pertains only to Includes right of over
Prohibited acts or activities during innocent passage navigation of ships flight
Passage of a foreign ship shall be considered to be
prejudicial to the peace, good order or security of the Applicability
coastal State if in the territorial sea it engages in any of Requires submarine and
the following activities: other underwater No requirement
a. any threat or use of force against the vehicles to navigate on specially applicable to
sovereignty, territorial integrity or political the surface and to show submarines
independence of the coastal State, or in any their flag
other manner in violation of the principles of Subject to suspension
international law embodied in the Charter of the Can be suspended Cannot be suspended
United Nations; Recommendations for designation of sea lanes
b. any exercise or practice with weapons of any Designation of sea
kind; In designation of sea lanes and traffic
c. any act aimed at collecting information to the lanes and traffic separation schemes is
prejudice of the defence or security of the coastal separation schemes, the subject to adoption by
State; coastal state shall only competent
d. any act of propaganda aimed at affecting the take account of the international
defence or security of the coastal State; recommendations of the organization upon
e. the launching, landing or taking on board of any competent international proposal and
aircraft; organization agreement of states
f. the launching, landing or taking on board of any bordering the straits.
military device;
g. the loading or unloading of any commodity, Note: The coastal State may, without discrimination in
currency or person contrary to the customs, form or in fact among foreign ships, suspend temporarily
fiscal, immigration or sanitary laws and in specified areas of its territorial sea the innocent
regulations of the coastal State; passage of foreign ships if such suspension is essential
h. any act of wilful and serious pollution contrary to for the protection of its security, including weapons
this Convention; exercises. Such suspension shall take effect only after
i. any fishing activities; having been duly published (Art. 25 (3), UNCLOS).
j. the carrying out of research or survey activities;
k. any act aimed at interfering with any systems of Suspension of the right of innocent passage of
communication or any other facilities or foreign ships in archipelagic waters
installations of the coastal State; Requisites:
l. any other activity not having a direct bearing on a. The suspension is made without discrimination in
passage (Part II, Section 3, Art. 19(2), UNCLOS). form or in fact among foreign ships;
b. The suspension is only temporary;
Right of Transit Passage c. It must specify the areas of its archipelagic
It is the right to exercise freedom of navigation and over waters where innocent passage shall not be
flight solely for the purpose of continuous and expeditious allowed;
transit through the straits used for international navigation, d. Such suspension is essential for the protection of
i.e., between two areas of the high seas or between two its security; and
exclusive economic zones (Art. 38(2), UNCLOS). e. Such suspension shall take effect only after
having been duly published (Art.52[2], UNCLOS).
All ships and aircraft enjoy the right of transit passage
except that, if the strait is formed by an island of a State 4. CONTIGUOUS ZONE — extends up to 12 nautical
bordering the strait and its mainland, transit passage shall miles from the territorial sea. The coastal state may
not apply if there exists seaward of the island a route not extend it beyond 24 nautical miles from the
through the high seas or through an exclusive economic baseline. It is a maritime zone adjacent to the
zone of similar convenience with respect to navigational territorial sea where, although technically, not part of
and hydrographical characteristics (Art. 38(1), UNCLOS). the territory of the State, the coastal State may
exercise limited jurisdiction over the contiguous zone The Coastal state has the right to enforce all laws
to (a) prevent infringement of customs, fiscal and regulations enacted to conserve and manage
immigration or sanitary laws and regulations within its the living resources in the EEZ. It may board and
territory or territorial sea and (b) punish infringement inspect a ship, arrest a ship and its crew and
of the above laws and regulations committed within institute judicial proceedings against them.
its territory (Art.33, UNCLOS). Arrested vessels and their crews may be required
to post reasonable bond or any other form of
5. EXCLUSIVE ECONOMIC ZONE (EEZ) — it is an security. However, they must be promptly released
area beyond and adjacent to the territorial sea, not upon posting of bond (Art. 1 and 2, UNCLOS).
extending beyond 200 nautical miles from the
baselines from which the territorial sea is measured, In the absence of agreement to the contrary by the
not part of the national territory but exclusive states concerned, the UNCLOS does not allow
economic benefit is reserved for the country. In case imprisonment or any other form of corporal
of archipelagic states, its breadth shall be measured punishment. However, in cases of arrest and
from the archipelagic baseline (Arts. 55, 57, 48, detention, of foreign vessels, it shall promptly notify
UNCLOS). the flag state of the action taken (Art. 73(3),
UNCLOS).
PD No. 1599 (June 11, 1978) — established the
exclusive economic zone of the Philippines which Coastal state has the exclusive right to construct,
shall extend to a distance of beyond and from the authorize and regulate the construction, operation
baselines from which the territorial sea is measured. and use of structures and artificial islands.
However, they may not be established where
Rights of the coastal state in the exclusive economic interference may be caused to the use of
zone recognized sea lanes essential to international
a. Sovereign rights for the purpose of exploring and navigation (Art. 60(1), UNCLOS).
exploiting, conserving and managing the natural
resources, whether living or non-living, of the Coastal state may establish safety zones around
waters superjacent to the seabed and subsoil, such artificial islands provided it shall not exceed
and with regard to other activities for the 500 meters around the artificial islands and
economic exploitation and exploration of the installations, unless otherwise authorized by
zone, such as the production of energy from the generally accepted international standards or
waters, currents and winds; recommended by the competent international
b. Jurisdiction with regard to the establishment and organization (Art. 60(5), UNCLOS).
use of artificial islands, installations and
structures; marine scientific research; the 6. CONTINENTAL SHELF — is the seabed and subsoil
protection and preservation of marine of the submarine areas that extend beyond its
environment; territorial sea throughout the natural prolongation of
c. Other rights and duties provided for in (Art. 56 its land territory to the outer edge of the continental
[1] of the UN Convention on the Law of the Sea). margin, or to a distance of 200 nautical miles from the
baselines from which the breadth of the territorial sea
Land-locked states — States which do not border is measured where the outer edge of the continental
the seas (Art. 124(1)(a), UNCLOS and therefore do margin does not extend up to that distance ( Art. 76
not have EEZ. (1) UNCLOS).
Basis for the resolution of conflicts regarding the Continental margin — comprises the submerged
attribution of rights and jurisdiction in the exclusive prolongation of the land mass of the coastal State,
economic zone: and consists of the seabed and subsoil of the shelf,
Conflict should be resolved on the basis of equity the slope and the rise. It does not include the deep
and in the light of all the relevant circumstances, ocean floor with its oceanic ridges or the subsoil
taking into account the respective importance of the thereof (Art. 76 (3) UNCLOS).
interests involved to the parties as well as to the
international community as a whole (Art. 59, Rights if a Coastal State over its continental margin:
UNCLOS). a. The Coastal state has sovereign rights over the
continental self for the purpose of exploring and
41
exploiting its natural resources. However, it does d. Freedom to construct artificial Islands and
not form part of the territory of the coastal state. other installations permitted under international
law
b. The rights are exclusive in the sense that if the e. Freedom of fishing
coastal State does not explore the continental f. Freedom of scientific research (Art. 87,
shelf or exploit its natural resources, no one may UNCLOS).
undertake these activities without the express
consent of the coastal State. INTERNATIONAL TRIBUNAL OF THE LAW OF THE SEA
(ITLOS)
c. The rights of the coastal State over the An independent judicial body established by the Third UN
continental shelf do not depend on occupation, Convention on the Law of the Sea to adjudicate disputes
effective or notional, or on any express arising out of the interpretation and application of the
proclamation. convention (Art. 1, ITLOS). It is Composed of 21
independent members elected by the States parties to the
d. The natural resources referred to in this Part UNCLOS from among persons with recognized
consist of the mineral and other non-living competence in the field of the law of the sea and
resources of the seabed and subsoil together representing the principal legal systems of the world (Art.
with living organisms belonging to sedentary 2, ITLOS).
species, that is to say, organisms which, at the
harvestable stage, either are immobile on or Jurisdiction of ITLOS
under the seabed or are unable to move except This comprises all disputes and all applications submitted
in constant physical contact with the seabed or to it in accordance with the UNCLOS. It also includes all
the subsoil (Art. 77, UNCLOS) matters specifically provided for in any other agreement
which confers jurisdiction on the Tribunal (Art. 21, ITLOS
e. The coastal State shall have the exclusive right Statute). The Tribunal has jurisdiction to deal with
to authorize and regulate drilling on the disputes (contentious jurisdiction) and legal questions
continental shelf for all purposes (Art. 81, (advisory jurisdiction) submitted to it.
UNCLOS).
Note: In the event of a dispute as to whether a court or
7. HIGH SEAS — means all parts of the sea that are not tribunal has jurisdiction, the matter shall be settled by
included in the territorial sea or in the internal waters decision of that court or tribunal (Art. 288(4)).
of any state (Art. 1, 1958 Convention on the High
Seas). They are open to all states, whether coastal or Contentious jurisdiction
land-locked; and no state may validly purport to The Tribunal has jurisdiction over all disputes concerning
subject any part of them to its sovereignty (Id., Art. 2; the interpretation or application of the UNCLOS and other
Art. 89, UNCLOS). Moreover, the high seas shall be international agreements related to the convention,
reserved for peaceful purposes (Art. 88, UNCLOS). subject to the provisions of Art. 297 and to the
declarations made in accordance with Art. 298 of the
Mare Liberium principle — principle espoused by UNCLOS (Art. 288(1) and (2), UNCLOS).
Hugo Grotius in 1609 which put forth the following
reasons why the sea couldn’t be occupied: Consent to contentious jurisdiction
a. its resources were inexhaustible General rule: Consent to the tribunal's jurisdiction must
b. physical occupation is impossible be given expressly.
c. demarcation of boundaries is impossible; and However,
d. the oceans are so immense that conflicting 1. ITLOS enjoys mandatory jurisdiction overall States
resource use is impossible (Sarmiento, Public party to the UNCLOS in some specific cause of
International Law Bar Reviewer, p. 345) actions, e.g. prompt release of detained vessels
and crews and requests for provisional measures
Main Constituents of the Freedom of the High in certain circumstances (Art. 292(1), UNCLOS),
Seas: unless the parties agree otherwise; also see Art.
a. Freedom of navigation 290(5), UNCLOS) and may receive cases on the
b. Freedom of over-flight basis of international agreements other than the
c. Freedom to lay submarine cables and UNCLOS.
pipelines
2. SBDC has mandatory jurisdiction under Part XI of mechanisms from a menu of four procedures
the UNCLOS and the Annexes relating thereto in enumerated in article 287 of the UNCLOS, the
disputes with respect to activities in the Area falling "choice of procedure" clause. The four alternatives
within the following categories: are: the International Court of Justice, the ITLOS,
a. disputes between States Parties concerning arbitration or special arbitration. In the event two
the interpretation or application of this Part States have selected the same procedure, it will
and the Annexes relating thereto; apply in disputes between them (Art. 287(4),
UNCLOS)
b. disputes between a State Party and the Authority
concerning: In the absence of agreement concerning the
i. acts or omissions of the Authority or of a adjudication forum, the disputes will be referred to
State Party alleged to be in violation of arbitration in accordance with Annex VII (Art.
this Part or the Annexes relating thereto or 287(3) and 287(5), UNCLOS).
of rules, regulations and procedures of the
Authority adopted in accordance 5. Part XV of UNCLOS, concerning the settlement of
therewith; or disputes, does not apply if the States Parties to the
ii. acts of the Authority alleged to be in disputes agree to submit the dispute to another
excess of jurisdiction or a misuse of procedure (Art. 282, UNCLOS).
power; 6. The UNCLOS also provides that a States party
c. disputes between parties to a contract, being may only have recourse to the procedures provided
States Parties, the Authority or the Enterprise, for by section 2 of Part XV "only after local
state enterprises and natural or juridical persons remedies have been exhausted where this is
referred to in article 153, paragraph 2(b), required by international law." (Art. 295, UNCLOS).
concerning:
i. the interpretation or application of a Advisory jurisdiction
relevant contract or a plan of work; or The Seabed Disputes Chamber of the ITLOS is
ii. acts or omissions of a party to the contract competent to give an advisory opinion on legal questions
relating to activities in the Area and arising within the scope of the activities of the Assembly or
directed to the other party or directly Council of the International Seabed Authority (Art. 191,
affecting its legitimate interests. UNCLOS). The Tribunal may also give an advisory
d. disputes between the Authority and a prospective opinion on a legal question if this is provided for by "an
contractor who has been sponsored by a State international agreement related to the purposes of the
as provided in article 153, paragraph 2(b), and Convention (Art. 138, Rules of the Tribunal).
has duly fulfilled the conditions referred to in
Annex III, article 4, paragraph 6, and article 13, Two treaties governing the system of International
paragraph 2, concerning the refusal of a contract Registration of marks
or a legal issue arising in the negotiation of the
contract; 1. Madrid Agreement Concerning the International
e. disputes between the Authority and a State Registration of Marks, which dates from 1891, and
Party, a state enterprise or a natural or juridical 2. Protocol Relating to the Madrid Agreement, which
person sponsored by a State Party as provided was adopted in 1989 - entered into force on
for in article 153,paragraph 2(b), where it is December 1, 1995, and came into operation on April
alleged that the Authority has incurred liability as 1, 1996 (World Intellectual Property Organization).
provided in Annex III, article 22;
f. any other disputes for which the jurisdiction of Madrid system
the Chamber is specifically provided in this This provides one single procedure for the registration of a
Convention (Art. 187, UNCLOS). mark in several territories. It is governed by two treaties,
the Madrid Agreement and the Madrid Protocol, and is
3. Disputes arising under the UNCLOS between administered by the International Bureau of WIPO in
States Parties are subject to compulsory Geneva, Switzerland (World Intellectual Property
procedures that entail binding decisions (with the Organization).
exception of a few specific categories of disputes
(Art. 284(1), 285 and 298(1), UNCLOS). Who is entitled to file an International Registration
4. States Parties may select, upon ratification of the application under the Madrid Protocol?
UNCLOS, one or more dispute settlement
43
Applicants from one of the countries party to the Madrid contravene the regulations of the Paris Convention (Art.
Protocol can file an International Registration if they are 19).
nationals of, have a real and effective industrial or
commercial establishment in, or have a domicile in one of Most important special agreements in relation to the
the Contracting Parties (Art. 2(1), Madrid Protocol). protection of trademarks are:
a. Madrid Agreement
The International Registration application shall be filed at b. Protocol relating to the Madrid Agreement
the International Bureau of WIPO through the office of c. Agreement on Trade-Related Aspects of Intellectual
origin of the basic application or registration. It cannot be Property Rights(TRIPS)
filed directly at the Bureau (Art. 2(2), Madrid Protocol). d. NICE Agreement
e. Vienna Agreement
Paris Convention for the Protection of Industrial Property f. Trademark Law Treaty
The Paris Convention provides for the following: g. Madrid Agreement on Indications of Origin
1. Creation of a legal entity recognized
under international law comprised of the following I NTERNATIONAL
administrative bodies: the World Intellectual Property E NVIRONMENTAL L AW
Organization (WIPO), the Assembly (which comprises
all member nations) and the Executive Committee
(Articles 13 to 17, Paris Convention for the Protection International Environmental Law
of Industrial Property, March 20, 1883). The branch of public international law comprising “those
substantive, procedural and institutional rules which have
2. National treatment and reciprocity: Nationals of any as their primary objective the protection of the
country of the Union shall, as regards the protection environment;” the term ‘environment’ being understood as
of industrial property, enjoy in all the other countries encompassing “both the creatures and products of the
of the Union the advantages that their respective laws natural world and those of human civilization” (Sands,
now grant, or may hereafter grant, to nationals; all Principles of International Environmental Law 2003, p.
without prejudice to the rights specially provided for 15).
by this Convention. Consequently, they shall have the
same protection as the latter, and the same legal MAJOR INSTRUMENTS THAT HAVE SHAPED THE
remedy against any infringement of their rights, MODERN DEVELOPMENT OF INTERNATIONAL
provided that the conditions and formalities imposed ENVIRONMENTAL LAW
upon nationals are complied with. Nationals of
countries outside the Union who are domiciled or who 1. The Stockholm Declaration on the Human Environment,
have real and effective industrial or commercial held in Stockholm, Sweden
establishments in the territory of one of the countries 2. The Rio Declaration on Environment and Development,
of the Union shall be treated in the same manner as which was adopted at the 1992 Rio Conference on
nationals of the countries of the Union (Article 2[1] Environment and Development, also known as the ‘Earth
and 3, Paris Convention for the Protection of Summit”
Industrial Property, March 20, 1883).
STOCKHOLM DECLARATION ON HUMAN
3. Convention priority: Any person who has filed a ENVIRONMENT
trademark application in one of the signatory
countries possesses a right to claim that filing date for Important principles contained in the Stockholm
priority purposes for trademark applications filed Declaration (Sarmiento, PIL Bar Reviewer (2009) p.359)
within six months in other signatory countries (Art. 4). 1. Principle 1 — Man has the fundamental right to
freedom, equality and adequate conditions of life, in an
Notes: environment of a quality that permits a life of dignity and
The Paris Convention [is] self-executing in some well-being, and he bears a solemn responsibility to
countries. The Convention becomes enforceable by the protect and improve the environment for present and
signatory's mere accession and no further implementing future generations.
legislation is required (Art. 20). 2. Principle 21 — States have the sovereign right to exploit
their own resources pursuant to their own
Paris Convention allows signatories to conclude special environmental policies, and the responsibility to ensure
agreements in the field of protection of intellectual that activities within their jurisdiction or control do not
property, as long as these agreements do not
cause damage to the environment of other States or of Note: This is also an embodiment of the Principle of
areas beyond the limits of national jurisdiction. Good Neighborliness.
Principle of Good Neighborliness — prohibits States 3. Principle 3 (Right to Development) — The right to
from using or permitting the use of its territory in a development must be fulfilled so as to equitably meet
manner that is injurious to another State, or that other developmental and environmental needs of present
State’s persons or property. Sic utere tuo ut alienum and future generations.
non laedas. So use your own so as not to injure others. .
Principle of Intergenerational Equity
3. Principle 22 — States shall cooperate to develop further This stresses that in making choices about meeting
the International Law regarding liability and the needs of present generations, the needs of
compensation for the victims of pollution and other present generations should not be sacrificed.
environmental damage caused by activities within the
jurisdiction or control of such States to areas beyond Notes:
their jurisdiction. Petitioner minors assert that they represent their
generation as well as generations yet unborn. We find
Notes: no difficulty in ruling that they can, for themselves, for
There are two fundamental principles of liability for others of their generation and for the succeeding
transboundary pollution under International Law: generations, file a class suit. x x x Needless to say,
a. first, a State must show material damage and every generation has a responsibility to the next to
causation to be entitled to legal relief; and preserve that rhythm and harmony for the full
b. second, a State has a duty to prevent, and may be enjoyment of a balanced and healthful ecology. Put a
held responsible for pollution by private parties within little differently, the minors' assertion of their right to a
its jurisdiction if such pollution results in demonstrable sound environment constitutes, at the same time, the
injury to State (Trail Smelter Case (U.S. v. Canada), performance of their obligation to ensure the
3 R.I.A.A. 1905 (1941). protection of that right for the generations to come
(Oposa v. Factoran, G. R. No. 101083, July 30,
RIO DECLARATION ON ENVIRONMENT AND 1993).
DEVELOPMENT
This was adopted at the 1992 Rio Conference on 4. Principle 7 (State Cooperation to Protect Ecosystem)
Environment and Development (otherwise known as the — States shall cooperate in a spirit of global
Earth Summit). partnership to conserve, protect and restore the
It reaffirms the Stockholm Declaration with the goal of health and integrity of the Earth's ecosystem. In view
establishing a new and equitable global partnership of the different contributions to global environmental
through the creation of new levels of cooperation among degradation, States have common but differentiated
States, key sectors of societies and people (Sarmiento, responsibilities. The developed countries
PIL Bar Reviewer (2009) p.360). acknowledge the responsibility that they bear in the
international pursuit of sustainable development in
Important principles contained in the Rio Declaration view of the pressures their societies place on the
(Earth Summit) (Sarmiento, PIL Bar Reviewer (2009) global environment and of the technologies and
p.361) financial resources they command.
1. Principle 1 (The role of humans) — Human beings Principle of Common but Differentiated Responsibility
are at the centre of concern for sustainable This recognizes that because developed States have
development contributed disproportionately to global environmental
2. Principle 2 (State sovereignty) — States have, in degradation, and because they command greater
accordance with the Charter of the United Nations financial and technological resources, those States
and the principles of international law, the sovereign have a special responsibility in shouldering the burden
right to exploit their own resources pursuant to their of pursuing global sustainable development.
own environmental and developmental policies, and 5. Principle 13 (Compensation for Victims of Pollution
the responsibility to ensure that activities within their and other Environmental Damage) — States shall
jurisdiction or control do not cause damage to the develop national law regarding liability and
environment of other States or of areas beyond the compensation for the victims of pollution and other
limits of national jurisdiction. environmental damage.
45
6. Principle 15 (Precautionary Principle) — In order to 1. International Trade Law — the international regulation
protect the environment, the precautionary approach of the exchange of goods and services across
shall be widely applied by States according to their borders is a major sector of international economic
capabilities. Where there are threats of serious or law. It is predominantly based on the reciprocal
irreversible damage, lack of full scientific certainty character of the respective rights and obligations of
shall not be used as a reason for postponing cost- all parties and considered to achieve mutual benefits
effective measures to prevent environmental for all of them provides the institutional basis for
degradation. global trade relations and is built on pre-existing
7. Principle 16 (Internalization of Environmental Costs) structures (Marrakesh Agreement Establishing the
— National authorities should endeavor to promote World Trade Organization; WTO Agreement
the internalization of environmental costs and the use preamble).
of economic instruments, taking into account the 2. International Antitrust and Competition Law --governs
approach that the polluter should, in principle, bear the interplay of domestic competition (antitrust) rules
the cost of pollution, with due regard to the public concerning the issue of undertakings. WTO law
interest and without distorting international trade and contains rudimentary rules sanctioning the abuse of
investment. regulatory powers and practices restraining
competition (Mexico: Measures Affecting
“Polluter Pays” Principle Telecommunication Services, Report of the Panel). In
The polluter who creates an environmental harm the absence of a truly international regime for
generally should be forced to pay the costs of competition, the establishment and application of
remedying that harm. competition rules lie with the competent domestic
8. Principle 18 (Notification of Natural Disaster) — bodies. International agreements provide for mutual
States shall immediately notify other States of any assistance and co-operation among competition
natural disasters or other emergencies that are likely authorities (Agreement between the Government of
to produce sudden harmful effects on the the United States of America and the Commission of
environment of those States. Every effort shall be the European Communities regarding the Application
made by the international community to help States of Their Competition Laws 23 September 1991;
so afflicted. Agreement between the European Communities and
9. Principle 24 (Warfare) — Warfare is inherently the Government of the United States of America on
destructive of sustainable development. States shall the Application of Positive Comity Principles in the
therefore respect international law providing Enforcement of Their Competition Laws 4 June
protection for the environment in times of armed 1998).
conflict and cooperate in its further development, as 3. International Investment Law — covers the promotion
necessary. of foreign investments and their protection against
10. Principle 26 (Resolution of Environmental Disputes) interferences by the host State. (Fraport v.
— States shall resolve all their environmental Philippines ICSID Case No. ARB/03/25, para. 402).
disputes peacefully and by appropriate means in
accordance with the Charter of the United Nations Notes:
(Sarmiento, PIL Bar Reviewer (2009) p.361). Under some agreements, customary rules still
provide the standard of reference for fair and
I NTERNATIONAL E CONOMIC L AW equitable treatment.
On the other hand, treaty standards shape the

International Economic Law modern minimum standards for the treatment of
This stands for a complex regulatory framework flowing foreign investors in general. Recent treaty practice
from different sources of law governing international tends to avoid undue limitations on political choices,
economic relations and transboundary economic conduct leaving considerably more room for standards
by States, international organizations, and private actors. concerning national environment, health, or labor.
In the interest of tangible contours, this notion is confined Nowadays, respect for the integrity of the law of the
to the regulation of cross-border transactions in goods and host State is also perceived as ‘a critical part of
capital and the international protection of intellectual development and a concern of international
property (Matthias Herdegen, Max Planck Encyclopedia investment law’ (Fraport v. Philippines ICSID Case
of Public International Law). No. ARB/03/25, para. 402).
Different areas of International Economic Law

4. International Monetary Law — the Articles of

Agreement of the International Monetary Fund
provides the rules for surveillance of currency
arrangements and assistance to Member States in
case of balance of payment deficits (Art. IV (1) (iii)
IMF Agreement). A major weakness of the actual
monetary system lies in the lack of a truly effective
control of exchange rate manipulations.
Most-Favored Nation Clause

This is usually found in trade treaties or agreements
requires that the States Parties shall accord to each other
whatever privileges, concessions or benefits that they
accord to other States. An example of an MFN Clause is
found in Article 1 of the General Agreement on Tariffs and
Trade (GATT) (Tanada v. Angara, G.R. No.
118295. May 2, 1997).
International Investment Law — covers the promotion of

foreign investments and their protection against
interferences by the host State (Fraport v. Philippines
ICSID Case No. ARB/03/25, para. 402).
Notes:
Under some agreements, customary rules still provide the
standard of reference for fair and equitable treatment.
On the other hand, treaty standards shape the modern

minimum standards for the treatment of foreign investors
in general. Recent treaty practice tends to avoid undue
limitations on political choices, leaving considerably more
room for standards concerning national environment,
health, or labor. Nowadays, respect for the integrity of the
law of the host State is also perceived as ‘a critical part of
development and a concern of international investment
law’ (Fraport v. Philippines ICSID Case No. ARB/03/25,
para. 402).
47

Eneral Rinciples: Political Law

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Political Law

Private International Law (Conflict of Laws) The body of B. JUS COGENS

considerable period. (Malanczuk, Akehurst’s Modern and obligations

Subject v. Object 2. Dependent – an entity

3. Neutralized – It has no legal standing in the family of nations.

Requisites for recognition of government: Effects of Recognition of Belligerency:

The right of states to come to the defense of a state

Act of State Doctrine T ERRITORY

shelf or exclusive economic zone, and is generally done

The land need not be uninhabited provided that it can be

Domestic Jurisdiction Clause Effects of suspension:

Limitations on Jurisdiction under its statute: Diplomatic Corps

Agreation Waiver may be made only by the government of the

5. A reservation is considered to have been accepted by Purpose of exception:

rationing of products in short supply and treatment of no

Multiple nationality Consequence of Statelessness

Doctrine of Indelible Allegiance Measures to be taken to prevent statelessness

Rights of Stateless Persons Elements of an Internationally Wrongful Act:

3. Injury to the claimant state indirectly because Persons subject to extradition

b. Courts are corrupt Principle of Specialty

2. He must resort to diplomatic protection

Elements for the exercise of extradition:

Fundamental principles relating to extradition

Procedure for Extradition (Judicial and diplomatic process Entitlement to bail

The International Court of Justice has determined that

Judicial Settlement Enquiry

Principle of Military Necessity NON-HOSTILE INTERCOURSE

Effect of belligerent occupation Postliminium

e. Right to equal protection of the law

1. Parties to armed conflict are prohibited from

3. Internationalized Armed Conflict

International crime Rome Statute

2. Principle of Non-Retroactivity — no person shall be Jurisdiction of the ICC

[Philippine Act on Crimes against International 1. INTERNAL OR NATIONAL WATERS — bodies of

Limitations on the Use of Straight Baselines : Right of Innocent Passage

On the other hand, treaty standards shape the

Different areas of International Economic Law

4. International Monetary Law — the Articles of

Most-Favored Nation Clause

International Investment Law — covers the promotion of

On the other hand, treaty standards shape the modern

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