Bernas + Brownlie + Cruz + Shaw + Lecture Notes

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What is international law? It is the law governing the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical. 1 What is the scope of international law? Generally, international law covers a wide range of matters involving maintenance of peace, protection of the environment, human rights, war, and space expeditions among other things.2 Under international law, there are subjects and objects. Who are the subjects and objects of international law? According to the Reparations Case, a subject of international law is an entity capable of possessing international rights and duties and having the capacity to maintain its rights by bringing international claims. Objects of international law, on the other hand, are those who indirectly have rights under, or are beneficiaries of, international law through subjects of international law. Is international law a law? Strictly speaking, there can be no law binding all sovereign states. However, according to Henkin, there remains a general respect for law, by virtue of which the States observe the principles of international law.

Public International Law governs the relationship among States and also their relations with international organizations and individual persons. Private International Law (Conflict of Laws) is domestic law which deals with cases wherein foreign law intrudes into the domestic sphere. It concerns: first, in which legal jurisdiction may a case be heard; and second, the law concerning which jurisdiction applies to the issues in a case.

What is jus gentium? Jus gentium was originally part of Roman Law that the Romans applied to its dealings with foreigners, especially provincial subjects. Presently, it is used to refer to the natural or common law among nations considered as States within a larger human society, especially governing the rules of peace and war, national bounderies, diplomatic exchanges, and extradition. Together with jus inter gentes, jus gentium makes up Public International Law. What is jus inter gentes? Jus inter gentes consists of agreements between nations and includes the body of treaties, UN conventions, international agreements, and internationally recognized human rights.

• • Jus gentium (“law common to all men”) evidenced from treaties between Jews and Romans Hugo Grotius authored De Jure Belli ac Pacis and coined the term “law of nations”. Later given the name “international law by Jeremy Bentham Peace of Westphalia (1648) o Ended the Thirty Years war (1618-1648) and established a treaty based framework for cooperation. o Gave birth to pacta sunt servanda3 Congress of Vienna (1815) o Ended the Napoleonic Wars and created a sophisticated system of multilateral and economic cooperation. Covenant of the League of Nations (1920) o Ended World War 1 and included the Treaty of Versailles4

• 1. Command Theory (John Austin)– “law consists of command emanating from a sovereign.” Under this theory, international law is not law because it does not emanate from a sovereign. Consensual Theory – international law derives its binding force from the consent of the States. (ex: treaties, custom) Natural Theory – law is derived by reason from the nature of man. International law is derived from the application of natural reason to the nature of the state-person.

2. 3.

What is the difference between Public International Law and Private International Law?
1 2

Restatement of Foreign Relations Law of the United States Bernas; Public International Law, 2010.


pacta sunt servanda simply means that agreements made must be complied with in good faith. This principle is found in Article 26 of the VCLT.

Kat Aguila

Kach H irang-O lave

Bernas + Brownlie + Cruz + Shaw + Lecture Notes
• League of Nations (1920) o The LoN was created as a result of the Treaty of Versailles, and was the precursor to the United Nations, at most it had 58 member states. o The League also created the Permanent Court of International Justice (PCIJ), which is the precursor to the current International Court of Justice (ICJ). o The United States was not a member of the League of Nations o The problem was that the League of Nations was not able to prevent World War II. This was because the mechanism of the League of Nations provided not for the prevention of war, but merely for a ‘cool off’ period. If after such time, they still desired to make war with each other, there was no obligation for them not to do so. World War II (1939-1945) United Nations (1945) o The LON was unable to prevent World War II from occurring. There arose a need to establish a new international institution that shifted power away from Europe. Hence, the UN was born. Cold War (1947-1991) o Primarily a war between the Soviet Union and the US and its allies. o During this period, three factions arose in the inernational community: the Western States, the socialist states and the developing countries. 1995 was a very important year for the development of international law, as this was the year that the WTO was created. WTO had, and still has, the most effective dispute settlement system, even more effective than the ICJ.5

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• •

4 The Treaty of Versailles was entered into in June 28, 1919. It was primarily for the purpose of ending World War 1 and charged former German Emperor, Wilhelm II, with supreme offense against international morality. He is to be tried as a war criminal. 5 Lecture, November 18, 2010

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may emerge. Opinio Juris Opinio Juris is the belief that a certain form of behavior constitutes a legal obligation. the passage of time can also be evidence of generality and uniformity. as subsidiary means for the determination of the rules of law.7 II. In this case. as evidence of general practice accepted as law (3) Generally accepted principles of law recognized by civilized nations (4) Judicial decisions and works of the most highly qualified publicists of various nations. What is wrong with this definition of opinio juris?8 Lecture. o Universality is not required. According to the ICJ in the North Sea Continental Shelf Cases. 2010 Kat Aguila Kach H irang-O lave . (c) Generality o Practice need not be exactly the same throughout States. Provided that the principles of consistency and generality are proven. There are. o Consistency was discussed in the Asylum Case. an instant custom. it is the recognition by States that a certain practice is obligatory and that it requires a conception that the practice is required by or consistent with prevailing international law. this is the most widely accepted statement with regard to the sources of international law. two elements of custom: 1. so long as consistency and generality are proven. What is the implication of this enumeration? It is not exclusive. However. 2.6 I. involving a fairly quick maturing of practice. whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. According to Brierly. or a practice present and binding only to a particular region. In any event. according to the Asylum Case. it only needs to be substantial. As already discussed above. Consistency and generality are sufficient to evidence a general recognition for a legal obligation. whether general or particular. fairness. state practice need not be extant for long periods of time. o Example: exemption of fishing vessels from being captured as prize of war (Paquete Havana case) o Is there such a thing as instant custom? YES. 2010 7 Article 2(1)a.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes Page 3 of 25 CHAPTER 2 THE SOURCES OF INTERNATIONAL LAW SOURCES OF INTERNATIONAL LAW What are the sources of international law? According to Article 38(1) of the Statute of the International Court of Justice. therefore there can be other sources of international law. it consists of unwritten rules evinced from the generality and uniformity of the practice of States and is adhered to by such states out of a sense of legal obligation or opinio juris. it does not speak of sources. however. the sources of international law are: (1) International conventions. November 25. State Practice 6 State practice has three elements: (a) Duration o There is no required length of time before a particular state practice may be considered custom. Note. therefore. the Court held that Colombia was not able to prove the constant and uniform practice of unilateral right of refuge of a State and an obligation upon the territorial state. As a matter of fact. It means that a State abides by a practice because of a sense of legal obligation. CUSTOM What is custom? According to the North Sea Continental Shelf Cases. (b) Consistency o State practice must be continuous and repetitive. may arise. INTERNATIONAL CONVENTIONS What is a treaty? A treaty is defined an international agreement concluded between states in written form and governed by international law. however. as opposed to motives of courtesy. establishing rules expressly recognized by contesting states (2) International custom. or morality. November 25. that what the Statute provides is a directive to the court in resolving conflicts. there are instances when a regional custom. there is no necessity of passage of a long period of time. VCLT 8 Lecture.

(self-defense will be discussed in greater detail in later chapters) Page 4 of 25 parties’ ratification of that treaty is an expression of their consent to be bound by such. the solution to this situation would be to reconcile custom with treaty provisions. International tribunals must have recourse to rules typically found in domestic courts and domestic legal systems in order to address procedural and other issues. meaning that the decisions have no binding effect except as regards State-parties that gave their consent. therefore. should prevail. It is not bound by virtue of the fact that it did not consent to the custom and therefore such custom is not binding on the New State in any respect. 2010 will be discussed in greater detail later. UN reporters and special rappertours. the ICJ has no jurisdiction at all to determine the rights and obligations of States. GENERALLY ACCEPTED PRINCIPLES OF LAW Generally accepted principles of law are principles of municipal law common to the legal systems of the world. serve as evidence of opinio juris. would run counter to the very nature of a treaty. 11 bombing which gave rise to an instant custom. Is custom binding on all States? Generally. in that opinio juris is a belief that a behavior is a legal obligation. in a region of States. What this means is that they are subject to the Statute provision on consent11. States are bound by custom. CUSTOM What is the relationship between treaty and custom? Treaties can generally. it cannot be in the strict sense considered a ‘ legal obligation’ if it arises from mere belief. Exception: when the state. In that sense. ICJ Statute Kat Aguila Kach H irang-O lave . Second. An example would be the Sept. there has already been a long-standing custom and there emerges a new State. Lecture. it can be said that the treaty will govern as regards the parties who entered into it. Without this consent. MHQPs are generally authorities such as writers and publicists. Is the New State bound to comply with the existing customs?9 NO. the State9 THERE IS NO STARE DECISIS IN INTERNATIONAL LAW. and submitting themselves to the jurisdiction of the Court. it will not be bound by such custom. but rather the concurrence the elements of generality and uniformity.10 Note that what matters in determining the existence of custom is not so much the lapse of time (while in most instances. In practice. has expressly objected to the applicability of the said customary behavior to its own State. the court attempted to reconcile treaties with custom. an armed attack situation is the ONLY valid justification for a State to violate the provision against the use of force under Article 2(4) of the UN Charter. but for the purposes of instant custom. however.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes The definition seems to be circular. This. Situation 1: If a treaty was entered into after a custom has been established. Examples are: principles of estoppel and equity IV. What about when. There is really no specific qualification. 10 11 Article 59. NOT because it was a persistent objector. being the latter intention. the ICJ only derives its jurisdiction from the consent of the Stateparties coming before it. The moment that the September 11 bombing happened. but the acceptance of the writings of these MHQPs depend on the judges themselves and the court’s tradition. November 25. This is so because. Article 59 of the Statute expressly provides so. In the Continental Shelf case. classifying the attack on the WTC as an armed attack under Article 51 of the UN Charter. Does a treaty override custom? It depends. Examples of MHQPs: Brownlie (wrote on everything about basic international law). the rules are not clear. this may be strong evidence of proving custom). from the very beginning. because obviously it was a nonexistent State at the time the custom began. and therefore would warrant the US’s valid exercise of self defense. Malcolm Shaw TREATY VS. III. Situation 2: If a treaty was entered into before a custom develops. It would seem that custom. a substantial number of States have concurred in the opinion that such constituted an armed attack. JUDICIAL DECISIONS AND WORKS OF THE MOST HIGHLY QUALIFIED PUBLICISTS Judicial Decisions under municipal law and works of MHQP are regarded as subsidiary sources of international law. This is so because first. This is called the principle of persistent objector. and the principle of pacta sunt servanda should be observed. but not always. Is there such a thing as instant custom? YES.

depending on the subject of the Resolution. they serve as highly persuasive evidence of the States’ consent to the subject of the Resolution and may therefore be evidence of customary law. Example: UN SC Resolution 167415 12 13 Lecture. but can only serve as evidence of customary international law • As a general rule. then why would we still need to look at previous decisions of the ICJ? Why do we still study them if they have no effect on future decisions anyway?12 Because it’s convenient. and Belgium having built canals obstructing water flow of the Meuse River. laws have already been interpreted and facts already appreciated. Example: duty to protect the environment16 EQUITY AS A SOURCE OF INTERNATIONAL LAW The court is not precluded from applying equity as part of international law. Page 5 of 25 “Soft Law” These are international agreements not concluded as treaties but are actually practiced with consistency and uniformity.13 Since past ICJ cases have already been decided. these decisions are highly persuasive but not binding upon the Courts. evincing the doctrine of unclean hands. there is nothing precluding the ICJ from looking into these past decisions for purposes of assisting them in resolving cases before the court. Then what purpose do they serve in the international community? At most. UN Resolutions are NOT binding. and Acts of Aggression) of the Charter. They have not. Gatdula 14 The Meuse River Case. the effect of this would be that State-parties cannot oblige the court to decide on their case in the same manner that the Court decided in previous similar cases. 2010 Atty. When made under Article VII of the UN Charter (Action with Respect to Threats to the Peace. OTHER SUPPLEMENTARY EVIDENCE (OTHER SOURCES OF INTERNATIONAL LAW) U. commiting the Council to protect civilians in cases of armed conflicts. The principle of equity was applied in the case of Netherlands v. 2006. Breaches of the Peace. At most. what the Court held in this case. Basically. when the needs of justice so require.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes Therefore. resolutions are binding. Netherlands having built a lock. December 2. was that Netherlands cannot claim nor can Belgium counter-claim when both of them come to court with unclean hands. Resolutions UN Resolutions have NO binding effect. Note that equity falls under Generally Accepted Principles of Law which. Exception: There are certain UN Resolutions that are binding.N. If there is no stare decisis. 16 1992 Rio Declaration Kat Aguila Kach H irang-O lave . Belgium14. but are in the process of. 15 Adopted April 28. is a valid source of international law. achieving the status of custom. under Article 38 of the Statute.

in whatever designation it may be given. ! The United Nations and its organs (i. among other things. must at least be in writing. The Constitution authorizes the President to make treaties subject to a concurrence of twothirds of all the members of the Senate). for the purpose of regulating their mutual relations under the law of nations. (i. and governed by international law. which is entered into by the states or entities possessing the treaty-making capacity.17 TREATY. the Security Council. Rome Statute20 17 18 ESSENTIAL REQUISITES TO A VALID TREATY (1) Treaty-making capacity ! A treaty to be valid must be entered into by parties with treaty making capacity. Bahrain. the commitment is very specific. there is clear intent to be bound by the declaration. (2) Authorized representatives ! It is for municipal law to determine which organ of the state shall be empowered to enter into treaties in its behalf. Bilateral treaties o Only binding between the State-parties. DEFINED. usually but not necessarily in writing. governed by international law. Exception: A state may be responsible for an injury resulting to another state for reasonable reliace by the latter upon the misrepresentation of the former. however such treaties would not come within the contemplation of the VCLT and therefore would not be governed by the VCLT. 1988 Harvard Research on International Law cited by Isagani Cruz Kat Aguila Kach H irang-O lave . In Qatar v. FUNCTION OF TREATIES Generally. Philippine-Indonesia Extradition Treaty Page 6 of 25 CHAPTER 3 THE LAW OF TREATIES The primary law governing treaties is the 1969 Vienna Convention on the Law of Treaties. agreed to by the States. to come under the definition of the VCLT. Treaties that create collaborative mechanisms 3. o Examples: JPEPA. (4) Lawful Subject Matter ! When the subject matter of a treaty is illegal. and Indian Oceans which are opean seas. ! All states have full treaty-making capacity unless limited by reason of their status and previous self-imposed inhibitions. ! Example: The Treaty of Tordesillas of 1949 is invalid for illegality of the subject matter insofar as it sought to divide between Spain and Portugal parts of theAtlantic.e. charters of international organizations.e. 1(b) VCLT 19 Cruz 20 July 17. but the treaty. it is rendered null and void. VCLT Art. KINDS OF TREATIES 1. 19 Is there such a thing as an oral treaty? YES. the Economic and Social Council) and international bodies like the World Health Organization may enter into treaties. 2 par. the ICJ held that a mere exchange of letters constitutes a valid treaty between the two States. There is really no required form.21 (3) Freedom to consent ! Fraud or mistake will invalidate a treaty as it would an ordinary contract.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes 2. Multilateral treaties o Multilateral treaties are generally open to all States o Examples: o Geneva Convention. and second. treaties serve as sources of international law. means of settling disputes. (5) Compliance with the Constitutional Processes ! Ratification processes are governed by municipal law. ! ! It is a written agreement between States. Non-compliance with this requisite will prevent the enforcement of the treaty even if already signed by the negotiators. ! General Rule: A state is not bound by a treaty made in its behalf by an organ or authority not competent under the law to conclude the treaty. What is the effect of unilateral declarations? The Court held in the Nuclear Test Cases that unilateral declarations can have the effect of creating legal obligations when two elements are present: first. Pacific. THE MAKING OF TREATIES Steps in the making of treaties: Negotiation " Authentication of Text " Consent to be bound " Reservations (if any) " Entry into Force 21 Hereinafter.18 It is a formal agreement. and embodied in a single instrument or a series of related instruments.

Article 19 Generally. or when it is otherwise established that the States agreed that the exchange would produce that effect. Signing • The act of signing will have the effect of binding a state to the treaty when the treaty so provides. whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to the State. 19. (4) In cases not falling within the preceding paragraphs and unless the treaty otherwise provides: Articles 9 and 10. the States agreed to give it that effect. 1. 2. VCLT 24 Article 13. • Who are empowered to enter into treaties as representatives of their States? (1) Heads of States (2) Ministers of Foreign Affairs (3) heads of diplomatic missions (4) accredited representatives of States to international conferences or to an international organization. VCLT Art. approval or accession. it does not in any way constitute derogation from the treaty.24 3. (2) A reservation requires the acceptance of all the parties when it appears that the application of the treaty is an essential condition of the consent of each State-party to be bound by the treaty. VCLT 27 Art. • The manner by which such authentication is primarily guided by the procedures set forth in the treaty itself. ratification. VCLT Kat Aguila Kach H irang-O lave . EXCEPT WHEN: (1) Reservation is prohibited by the treaty (2) The treaty provides for only specified reservations (3) When the reservation would be contrary to the object and purpose of the treaty. VCLT 25 26 Article 14. 27 Article 20 (1) A reservation expressly authorized by a treaty does not need subsequent acceptance by the other State-parties. approval or acceptance 22 23 4. the representative of the State signed it subject to ratification.25 • Ratification is followed by either an exchange of ratification or deposit of ratification. • Two elements must be present for someone to be considered with full powers to represent a state: (1) he produces appropriate full powers (2) The practice of States so provide for evidence that there is an intention to consider that person a representative of the State. Accession • This applies to States that did not participate in the initial negotiations. If not followed. or when the parties agree that the signature would have that effect. States may make reservations. naturally. ratifying. then the signature ad referendum or initialing of representatives will serve as sufficient authentication. a reservation requires the acceptance of the competent organ of that organization. • Negotiators have the power to negotiate. (3) When a treaty is a constituent instrument of an international organization and unless it otherwise provides. or other means if so agreed. VCLT Article 12. a treaty entered into by one who is not authorized to do so is invalid and without effect. approving or acceding to a treaty. exchange of instruments. acceptance.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes • Page 7 of 25 Step 1: Negotiation • Negotiations are usually done through foreign ministries. accepting.26 A reservation is different from an interpretative declaration. made by a State when signing. • Accession binds a state when the treaty so provides. however phrased or named. Ratification.22 Step 3: Consent to be bound There are several means of expressing consent: signing. Exchange of Instruments • The exchange of instruments will have the effect of binding a state to the treaty when the instruments themselves provide for such effect. approval or acceptance will have the effect of binding a state to a treaty when the treaty so provides. The latter refers merely to the expression or the interpretation of the State of the treaty. or when all the subsequent parties have agreed that consent is expressed by accession. or the States so intended.23 2. when the negotiating parties have agreed that such consent may be expressed by accession. or when it is the intention of the parties that the signature would have that effect. Step 2: Authentication • This is evidenced by the signing of the document. The ratification. Step 4: Reservations A reservation is a unilateral statement.

24. The signing shall not impair the sovereign rights of the Philippines as a successor of the United States. modifies those provisions to the same extent for that other party in relation to the reserving State. 4. Legal effects of reservation: 1.29 • A treaty may be provisionally applied when the treaty itself provides. modifies for the reserving state in its relations with that other party the provisions of the treaty b. • Withdrawal of an objection may be made at any time. 3. Withdrawal of reservations and of objections • Withdrawal of a reservation may be made at any time. the provisions to which the reservation relates do not apply as between two States to the extent of the reservation. 2. and formally confirmed by the reserving State • The acceptance of the reservation DOES NOT itself require confirmation • Withdrawal of a reservation or objection must be in writing Step 5: Entry into Force • A treaty enters into force on the date the parties agreed to. upon its ratification of the Convention of the Law of the Sea. made a reservation. particularly when necessary to protect its sovereignty. When a State objecting to a reservation does not oppose the treaty’s entry into force between itself and the reserving State. The signing shall not affect the rights and obligations of the Contracting Parties under the Mutual Defense Treaty28 and its related instruments. interest. or when the negotiating parties so agree. acceptance by another contracting State of the reserving State’s reservation makes the reservaing State a party to that treaty in relation to the accepting State. and security. on the August 5. or other treaties to which the Philippines is a party. If there is no such agreement.30 APPLICATION OF TREATIES • • Treaties must be complied with in good faith. VCLT 30 Art. The concept of archipelagic waters is deemed similar to the concept of internal waters under the Philippine Constitution. it removed straits connecting these waters with the economic zone or high sea from the rights of foreign vessels to transit passage for international navigation. 2. The provisions on archipelagic passage do not nullify or impair the Philippines’ sovereignty as an archipelagic state. • As to effectivity: o The withdrawal of a reservation becomes operative in relation to another contracting State only when it receives notice thereof o The withdrawal of an objection becomes operative only when notice thereof has been received by the State which formulated the objection. A reservation established with regard to another party: a. The signing of said Convention shall not in any manner impair or prejudice the sovereign rights of the Philippines. Page 8 of 25 THE PHILIPPINES AND THE 1982 CONVENTION OF THE LAW OF THE SEA • The Philippines.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes a. A reservation is effective as soon as at least one other contracting State has accepted the resrervation. An objection by another contracting State does not preclude entry into force of that treaty as between the reserving State and the objecting State. 1951 Art. 25. When there is conflict between Municipal Law and International Law (further discussed in Chapter 4) 28 29 entered into between the Philippines and the U. Form and Procedure of Reservation: • Reservations must be in writing. more importantly. unless a contrary intention is definitely expressed by the objecting State. 1984. This is so because there is a conflict between Article I of the Philippine Constitution and the provision of the Conveneion on ‘archipelagic waters’. What this means is that it remains with authority to enact legislation over sea lanes. then the treaty enters into force on the date of consent. c. The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se. and the consent of the accepting State is not required. pursuant to the principle of pacta sunt servanda. whichever is later. • (5) A reservation is deemed accepted by a State if it did not raise any objection to the reservation by the end of the period of 12 months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty. 3. on August 30. 5. VCLT Kat Aguila Kach H irang-O lave . b.S. The reservations are as follows: 1.

• These States shall take part in the decision-making. The contested term here is “accident” within the meaning of Article 17 of the Warsaw Convention. • A treaty may expressly extend benefit to non-signatory states (i. duress 5. BINDING EFFECT OF TREATIES General Rule: Treaties are binding only on the contracting parties Exception: Third states may be validly held to the observance of or benefit from the provisions of a treaty. Held: Air France is not liable. alleging that her deafness was due to Air France’s negligence in maintaining their pressurization system. Rules on amending treaties: (Art. INVALIDITY OF TREATIES Grounds for invalidating a treaty are: 1. Liability under Article 17 arises only when the passenger’s injury is caused by an unexpected or unusual event or happening that is external to the 31 32 AMENDMENT AND MODIFICATION OF TREATIES Amendment – formal revision done with the participation of all the parties to the treaty. the purpose of the treaty. the treaty to which both States are parties governs their mutual rights and obligations. 4 (b) as between a State party to both treaties and a State party to only one of the treaties. Kat Aguila Kach H irang-O lave . When a treaty is entered into in two or more languages. recourse may be had to supplementary sources. 40) • Proposal to amend must be made known to all the contracting States. but if a difference arises. INTERPRETATION OF TREATIES • Treaties are to be interpreted taking into consideration three elements: the ordinary meaning of the words.33 When there are ambiguities. District Court ruled in favor of Air France. 31. EXCEPT when the State expressly agrees that it remains effective. the treaty applies to the entire territory of the State-party. 4(b) governs. and not when the injury is a result of the passenger’s own internal reaction to the normal expected operation of an aircraft. CA reversed. error of fact 2. VCLT 33 Art. a State may invoke the aforesaid grounds to invalidate a treaty. except when the parties agree to making a particular text prevail. then the meaning that will best reconcile both shall be adopted. 46. then Article 30 par. or when the state acquiesces. The terms are presumed to be of the same meaning. • The treaty may be merely a formal expression of customary international law which is enforceable in all civilized states. • Parties to the pre-amendment treaty are entitled to be parties to the amended treaty. fraud 3. VCLT Art. Modification – formal amendment involving some of the parties Rules on modifying treaties: (Art.e.31 Unless otherwise provided.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes A State may NOT its domestic laws as a justification for violation of its obligations under international law. She filed a case in a California State Court against Air France. ruled in favor of Saks. 41) • A treaty can only be modified when: o Modification is provided for by the treaty 34 • • • Art. and the special meaning given to it by parties. the HayPauncefote Treaty of 1901). 30 par. • If the State is a party to one treaty but is no a party to the amended treaty. VCLT Art. negotiation and conclusion of any agreement for the amendment of the treaty. the treaty is a violation of jus cogens Generally. Saks Facts: Saks was a passenger of Air France who later on suffered permanent deafness in her left ear after landing in LA. 32 Page 9 of 25 passenger. the provision of the Montreal Agreement imposing absolute liability for injuries cannot deemed a waiver of the ‘accident’ requirement under the Warsaw Convention. Moreover.34 • Any State which becomes party to a treaty after entry into force of the amending agreement shall: o be considered a party to the amended treaty o be considered a party to the unamended treaty in relation to any party not bound by the amended treaty. corruption of the State’s representative 4. Air France v. the general rule is that the treaties are equally authoritative in all languages. 29.

the provisions of the VCLT on breach of treaty provisions can be considered as evidence of customary international law. 36 35 38 Par. I just learned and mapped this out from our previous discussions on treaty law. by virtue of Resolution 276 (1970) to withdraw its administration over Namibia. The change must have increased the burden of the obligations to be executed to the extent of rendering the performance of something essentially different from that originally undertaken. thereby violating its obligation to UK. Therefore. it can be said that the general rule is pacta sunt servanda and rebus sic statibus is one exception.36 • Rebus Sic Stantibus o Rebus sic stantibus is the principle of fundamental change in circumstances allowing States to suspend or terminate the application of a treaty o Basically. si Namibia sought advisory opinion from the Court requesting that the Court determine what the legal consequences are of South Africa’s continued stay. the impossibility must result from the permanent disappearance or destruction of an object indispensable for the execution of the treaty. 43 Kat Aguila Kach H irang-O lave . Iceland) Facts: UK and Iceland bring this case before the Court in order to settle their dispute regarding the extension of Iceland’s exclusive fisheries jurisdiction from 12 nautical miles to 50 nautical miles. VCLT 37 I don’t have a legal basis for this. 60. it must at least be an act in repudiation of a treaty. What is important to note here is that the Mandate by the Resolution is considered by the court to have the same binding effect as an international agreement. VCLT Art. or a violation of a treaty provision essential to the accomplishment of the object or purpose of the treaty. Held: The Court held that South Africa was under an obligation to withdraw from Namibia and that other States have an obligation not to recognize South Africa’s administration in Namibia. 38 Namibia Case (Namibia v. but it nevertheless did.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes o o o Modification is not prohibited by the treaty Modification does not affect the rights and obligations of other States Modification is not incompatible with the object and purpose of the treaty. the General Assembly’s resolution is the exercise of its right to terminate the relationship in view of the outright violation of its international obligations. but the relevant part of rebus sic stantibus is discussed in the ratio) Held: The Court ruled that it had jurisdiction. Page 10 of 25 Issue: W/N the Court had jurisdiction (this is the primary issue. an outright repudiation of the Mandate and a violation of a provision essential to the Mandate’s purpose are means by which we can determine whether a State has violated its obligations under international law. South Africa) Facts: South Africa is being mandated by the Security Council. In order for a State to validly invoke rebus sic stantibus. 61. 35 • Impossibility of performance o In order to constitute impossibility of performance. Art. Applying this same view to the Mandate. Iceland previously entered into an agreement (through an Exchange of Notes) with UK NOT to extend its fisheries jurisdiction. It refused to do so. The change should have resulted in a radical transformation of the extent of the obligations still to be performed. TERMINATION OF TREATIES Treaties are terminated by: • Lapse of definite period provided for by the treaty • Purpose for which it was established has already been achieved • Material Breach o In order to constitute material breach.37 Fisheries Jurisdiction Case (United Kingdom v. the change must have been fundamental. Article 62 constituted customary international law. Having committed these two outright breaches of the Mandate.

to which Czechoslovakia responded by carrying out unilateral measures. mediation. On the state of necessity. at most. Hungary suspended the construction due to environmental concerns. 67. The investment was no longer possible because Hungary itself did not carry out the works. then the termination may be carried out in accordance with Art. the power to enter into treaties is shared between the President and the Senate. those empowered to enter into them can be deemed the same ones empowered to terminate them. 39 o If no solution has been reached after 12 months following the date of the objection: 39 What Art. 40 Art.) are not of such nature so as to warrant a termination of the treaty. the Court ruled that this ground is not a valid ground for the termination of a treaty. AUTHORITY TO TERMINATE Who can terminate treaties? The Convention does not provide. however. # Page 11 of 25 • Any one of the parties may submit it to the ICJ for a decision unless the parties agree to submit to arbitration # Any one of the parties may set in motion the procedure laid down in the Convention by submitting a request to the SecretaryGeneral of the United Nations. but NOT termination thereof. The law does not specify who has the authority to terminate. 33 requires is that States settle their dispute through negotiation. Held: In order to justify its unilateral termination of the said treaty. This is called the clean slate rule. Boundary Regimes – succession does not affect boundaries already set by a treaty. On fundamental change of circumstances.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes Danube Dam Case (Hungary v. The instruments containing the declaration of termination of the treaties should be in writing. it could be a justification for failure to implement treaty provisions. the Court held that the changed circumstances invoked by Hungary (changes political in nature. resort to Art. (2) impossibility of performance. Other territorial regimes – succession does not affect use of any territory. the Court ruled that Hungary cannot invoke this ground as if Slovakia’s breach is only the result of Hungary’s corollary breach of its obligations. and other peaceful means.40 TERMINATION OF TREATIES Procedure: • A party invoking any of the grounds for termination must notify all the parties • If after the expiry of the period. progress of environmental knowledge. but as a corollary. and must be communicated to other parties. Slovakia) Facts: Slovakia succeeds Czechoslovakia in the 1977 Treaty entered into between Czechoslovakia and Hungary regarding the building of dams on the Danube River. VCLT Kat Aguila Kach H irang-O lave . 2. The treaty does not contain any provision regarding its termination. and (3) fundamental change of circumstances. SUCCESSION TO TREATIES A new State succeeding another State previously a party to a treaty is not obliged to maintain in force that treaty or to become a party thereto. or restrictions thereof. etc. • If a State objects. which shall not be less than three months after the receipt of the notification. Exceptions to the clean slate rule: 1. 12. • The provisions on other territorial regimes do NOT apply to treaty obligations of the predecessor State providing for establishment of foreign military bases. 33 of the UN Charter is necessary. In the Philippines. arbitration. All of which have been deemed unmeritorious by the Court. or rights established by a treaty for the benefit of any territory. On the impossibility of performance. or obligations and rights established relating to the regime of a boundary. Hungary invokes the grounds of: (1) state of necessity. no State objects.

There are two primary divisions with regard to the monist theory43: 1. They are both the legal element contained within the domestic and international systems respectively. and they exist within different juridical orders.44 2. one not being superior over the other.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes Page 12 of 25 CHAPTER 4 MUNICIPAL LAW AND INTERNATIONAL LAW DUALISM AND MONISM In international law. but between states. 8th ed. Law is regarded as constituting an order which lays down patterns of behavior that ought to be followed. Dualists are positivists who put strong emphasis on sovereignty. and advocates that international law is the best way of achieving this well-being. Emerging third approach: the “no common field” approach (supported by Fitzmaurice and Rosseau) There arises a third approach. State-person relations and person-person (interpersonal) relations The law of the sovereign is over individuals International Law Custom grown up among States and law-making treaties entered into by them State – State relations The law is not over. and therefore is the weaker law Under this theory. international law and municipal law are two distinct systems of law. municipal law prevails. and because states owe their legal relationship to one another to the rules of international law. VCLT Kat Aguila Kach H irang-O lave . the dualist theory holds international law and municipal law to be two distinct and separate laws. Cited in Bernas. Monist Theory MUNICIPAL LAW IN INTERNATIONAL LAW The general rule is that a State may not invoke provisions of its own laws as a justification for the violation of its obligations under international law. It considers municipal law and domestic law as distinct laws. Since the same definition appertains within both the internal sphere and the international sphere. Dualist Theory Under this theory. 45 1. As to substance According to most dualists42 . 1. There are two theories that attempt to address this conflict: the dualist theory and the monist theory. 1958 46 Art. Why? Positivism stresses the overwhelming importance of the state and tends to regard international law as founded upon the consent of states. Cases and Materials in International Law Shaw. much like the French Rule and the English Rule are different systems of law. International Law. As to the relations they regulate 3. It is an approach characterized by deep suspicion of an international system based upon the sovereignty and absolute independence of states. The differ in several ways:41 Municipal Law Arises from custom grown up within the boundaries of the State concerned and statutes enacted by lawmaking authority. under which there is no common field between International Law and Municipal Law. The formalistic logical approach (supported by Kelsen) This approach finds its basis on Kant’s philosophy. it follows that inter-national law is superior to or more basic than municipal law. The ethical position on “human rights” (supported by Lauterpacht) The 'naturalist' strand sees the primary function of all law as concerned with the well-being of individuals. such as the one positing equality. municipal law and international law are essentially the same. since states cannot be equal before the law without a rule to that effect. 2003. 45 Oppenheim's International Law. Under this approach. Basically. 1958 Dixon and Mccirquidale. 27. The monist theory considers international law and municipal law to constitute only one system of law. Vol. a logical unity is forged. conflict between municipal law and international law often arise.. coupled with provision for sanctions which are employed once an illegal act or course of conduct has occurred. Vol. 8th ed. 1. international law is superior to municipal law..46 Neither may it claim that its consent to be bound by a treaty has been expressed in violation of a provision of its 43 44 41 42 Oppenheim's International Law. 5th ed. As to source 2. and by faith in the capacity of the rules of international law to imbue the international order with a sense of moral purpose and justice founded upon respect for human rights and the welfare of individual.

In this case. VCLT Shaw. This is because the Constitution explicitly provides that the Philippines “adopts generally accepted principles of international law as part of the law of the land”. Spain contends that Belgium has no locus standi. this in itself constitutes our adherence to the doctrine of transformation. How is this done? There are two ways of making international law a part of domestic law: incorporation and transformation. 46(2). VCLT Art. but pursuant to Spain’s refusal to authorize foreign currency transfers. Sec. However.51 With regard to customary law and treaties that have become customary law. just noted from one of our previous discussions. 5th ed. INTERNATIONAL LAW IN MUNICIPAL LAW Dualism also applies in this regime. Which doctrine does the Philippines adhere to? The Philippines. 21. adheres to both. 47 The exception to the general rule is when there is a manifest violation of the fundamental laws of the State concerned. 47 48 Art. it may be argued that precisely because treaties require an act of Congress before they become effective. its shareholders adversely affected. with regard to the question whether the service of these loans should be effected based on gold franc or paper franc. No legal basis for this. To reiterate: In the Philippines. VII. International Law.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes internal law regarding competence to conclude treaties as invalidating its consent. 2003. it has to be made part of the municipal law. in his Commentary said: the law of nations. Barcelona Traction was incorporated in Canada. 1987 Philippine Constitution 52 Bernas Kat Aguila Kach H irang-O lave . It is manifest where it would be objectively evident to any state conducting itself in the matter in accordance with normal practice and in good faith. The Court was required to take into account the decisions of the municipal courts of a state and apply it. The best known exponent of this doctrine is Blackstone49 who. the Philippines adopts the incorporation theory. the doctrine of incorporation applies only to customary law and treaties that have become customary law. As regards treaties. the court has jurisdiction over the case. whereas the doctrine of transformation applies to treaties. whether through an act of Congress or through an Act of Parliament. wherever any question arises which is properly the object of its jurisdiction. is here adopted in its full extent by the common law. it has to be “transformed” into municipal law by the use of the appropriate constitutional machinery.50 This is because the validity of a treaty entered into requires the concurrence of the Senate. international law had to recognize the corporate entity and its shareholders in light of the existing municipal law.” Barcelona Traction Case Facts: Belgium wants to seek damages from Spain for the losses suffered by its citizens who are shareholders in the Barcelona Traction. Brazilian Loans Case (France v/ Brazil) Facts: This is a dispute between the Brazilian Federal Government and the French holders of various Brazilian Federal loans. and it is held to be a part of the law of the land The doctrine of transformation The doctrine of transformation. the doctrine of transformation applies. 51 Art. What is the legal implication? It means that our courts can apply international law to settle disputes. international law attains the same value and effect as our municipal laws.52 Mejoff v. Held: The Court ruled in favor of Spain. 46(1). in essence. It depends on the element of international law entering the domestic sphere. thereby evincing our adherence to the incorporation theory. on the other hand.48 Page 13 of 25 The doctrine of incorporation The doctrine of incorporation simply provides that international law is automatically part of the law of the land without further need of legislation. Light and Power Company. Belgium had no locus standi. By incorporating customary law and treaties that have become customary law into “the law of the land”. the Company went bankrupt and accordingly. Director of Prisons (1951) 49 50 Exchange of Greek and Turkish Population Case “A state that enters into a valid international obligation is bound to make in its legislation such modifications as may be necessary to ensure the fulfillment of the obligations undertaken. and such would have the same binding effect as would the Civil Code or the RPC. Held: The Court ruled that even if this case involved municipal law rather than international law. provides that before international law becomes effective in the domestic sphere. In order for international law to become part of domestic law.

Such generally accepted principles. and whether it deprives the Philippines of sovereignty YES.S. Second. he was to be detained in the Bilibid Prison. 3. 68 (establishing a National War Crimes Office prescribing rule and regulation governing the trial of accused war criminals) and the participation of American attorneys Melville S. On what ground? First. that "Every one has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the Constitution or by law" (Art. such does not diminish Philippine sovereignty. and should therefore adhere to the “Universal Declaration on Human Rights”. that "No one shall be subjected to arbitrary arrest. Two years later and still. 68 valid? Whether the participation of Hussey and Port is valid. the Court took into account that Mejoff was already in detention for two years and ordered that he be released. 2). Since the law creating it has been upheld as valid. the Philippines is a member of the UN. he illegally entered the Philippines sometime in 1944 without proper admission and inspection. E. the Court decided that the detention of Mejoff pending proper deportation arrangements was valid. their participation in the proceedings is valid. that "Everyone is entitled to all the rights and freedom set forth in this Declaration. Hence.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes Facts: In the 1949 case.O. the President. without distinction of any kind. these treaties. regardless of nationality. part of our Constitution. property. Ratio: (1) Held: (1) (2) Page 14 of 25 covering 1943-1944. even if they are not qualified to practice law in the Philippines. the writ should be issued. Hussey and Robert Port in the prosecution proceedings. 8). A ship arrived and requested for him but the masters of prisons refused claiming that they had no authority to do so. It was the President’s duty to try and punish individuals who have attempted to wage war. or other status" (Art. Edu Facts: Kuroda v. but subjected to reasonable surveillance. Because of this. as the U. in the interest of safety in public highways and expressways direct owners of motorized vehicles to acquire an early warning device and present such upon registration of your vehicle. political or other opinion. Sec. requires that: All human beings are born free and equal in degree and rights" (Art. Ratio: The protection against deprivation of liberty without due process of law is not limited only to Filipino citizens. language. Agustin v. If anything. are by virtue of Article II. Our courts should respect Mejoff’s right to liberty. nationality or social origin. sex. 1974 a Letter of Instruction in accordance to the 1968 – Vienna Convention on Road Signs and Signals and the UN which was ratified by the Philippine Government under PD 207. so it follows that the said Commission has jurisdiction. in issuing EO 68. the Philippines adopts the generally accepted principle of due process.O. religion. as he posed a threat to security. these principles should be respected in our domestic courts. the Court ordered his deportation. Issue: Should the Court issue a writ of habeas corpus and order the release of Mejoff notwithstanding his status? Held: YES. (2) The Military Commission is a special tribunal governed by special law and not the Rules of Court. 9). and pending the arrival of the ship that will take him home. The UDHR among other things. and NO. The Letter of Instruction 229. Mejoff is a Russian secret operative working for the Japanese forces. such as race. Having the American lawyers in the proceedings does not in any way diminish the Philippines’ sovereignty.O. detention or exile" (Art. was merely acting pursuant to its role as Commander in Chief and clearly within his constitutional powers. YES. is an aggrieved party. Mejoff is released. questioning the legality of E. in addition international jurisprudence still evince generally accepted principles of international law. it’s the U. Kat Aguila Kach H irang-O lave . It is a fundamental right guaranteed to every individual. 1). Notwithstanding that the Philippines is not a signatory to the Hague Convention or the Geneva Conventions (not until 1947). He comes before the court. that is relinquishing its sovereignty in allowing the Philippines to prosecute the case. Therefore. Jalandoni Facts: Shigenori Kuroda is a former Lieutenant-General of the Japanese Imperial Army and Commanding General of the Japanese Imperial Forces in The Philippines during a period President Marcos issued on December 2. by the Constitutional provision on the Philippines’ adoption of generally accepted principles of law.S. no ship nor country is willing to take him. Issues: (1) (2) Is E. In this case (1951). birth. 68 is valid and constitutional. Pursuant to this LOI. colour. He is now being tried before the Military Commission for ‘having failed to discharge his duties and prevent the brutal atrocities committed against civilians and prisoners of the Imperial Japanese Forces in violation of the laws and customs of war’.

they are moreover mandated to carry out their obligations in good faith. the Philippines complies with its obligations under the VC on Road Signs. when it comes to treaties. Issue: is the LOI unconstitutional? Is it a valid delegation of police power? Held: YES. What happens then? The treaty would be invalid and unenforceable under domestic law. complying with the prescribed size. Note that just because a treaty is unconstitutional does not mean that it is no longer valid as international law. Declaration of Rights and Duties adopted by the International Law Commission in 1949. and measurements.53 (Refer to the rule laid down in page 15. it is a settled rule that a State may not invoke provisions of its own laws as justification for its failure to comply with its obligations under international law. Page 15 of 25 53 Art. the court applies domestic law. and that the EWD’s were too expensive. treaties entered into by the Philippines are somteimes incompatible with the Constitution. shape. so to adopt a uniform means of warning. usually. It is only invalid in the context of the domestic sphere. It seems that our laws cannot be in conflict with customary international law because our Constitution explicitly adopts CIL as part of the law of the land. the end goal being to reduce accidents. Conflict between International Law and Domestic Law: International Rule Before an international tribunal. as the Philippines has already ratified the Vienna Convention on Road Signs and Signals. However. Edu issued Memorandum Circular 32 requiring all vehicle owners to procure the EWD’s.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes Hon. Ratio: This is a valid exercise of police power. referring to manifest violations of the Constitution as an exception to this rule) Conflict between International Law and Domestic Law: Municipal Rule Before a domestic court. Kat Aguila Kach H irang-O lave . Agustin argues that other forms of WD’s can be used. 13. LOI is constitutional. What happens when there is a conflict of obligations? It depends on whether the case is brought before a domestic court or an international tribunal. Other forms of warning may not be universally understood. States are not only obliged to not ‘make excuses’. Moreover. It is also in keeping with the principle of pacta sunt servanda.

plicit in the affirmation that only states are subjects of international law' 56 o In practice however. Sovereignty • Independence from outside control • The capacity to enter into relations with other states. or some of its territory is claimed by another state.60 • Levels of claims to self-determination: (1) Establishment of new states – the claim by a group within an established state to break away and form a new entity. 489. Can an entity claim to be a state before it is recognized by other states? There are two views on this: (1) The Declaratory Theory 59 60 Bernas Cruz 56 Lauterpacht. expressed and realized. Social and Cultural Rights. however. p. ! Subjects of international law are entities endowed with rights and obligations in the international order and possessing the capacity to take certain kinds of action on the international plane. • An entity may satisfy the territorial requirement for statehood even if its boundaries are disputed.55 ! The stricter definition would be Lauterpacht’s: 'the orthodox positivist doctrine has been ex. Notably. the Philippines was able to sign the United Nations Charter notwithstanding that it was still not an independent state then. DEFINED. so long as there is a consistent band of territory which is undeniably controlled by the government of the alleged state. o Defined territory • A fixed portion of the surface of the earth in which the people of the state reside. By virtue of that right. it is the national government that has legal personality and it is the national government that is internally responsible for the actions of other agencies and instrumentalities of the state. International Law. or the claim to overthrow effective rulers and establish a new government RECOGNITION OF STATES Recognition means the act of acknowledging the capacity of an entity to exercise rights belonging to statehood. 57 Article 1. Government • An agency through which the will of the state is formulated. Self determination • This is a broader concept than sovereignty. social and cultural development. namely: ! Holy See (particularly from 1871 to 1929) ! Insurgents and belligerents ! International organisations ! Chartered companies and various territorial entities such as the League of Cities o o o STATES AS SUBJECTS OF INTERNATIONAL LAW ! A state may be defined as a group of people living together in a defined territory under an independent government organized for political ends and capable of entering into international relations. they freely determine their political status and freely pursue their economic. (Cruz) ! The state as a person of international law must possess the following qualifications:57 o Permanent population (OR PEOPLE) • A community of persons sufficient in number and capable of maintaining a permanent existence of the community and held together by a common bond of law. • For purposes of international law. It has an international personality that it can directly assert rights and be held directly responsible under the law of nations. Montevideo Convention of 1993 on Rights and Duties of States 58 Restatement (Third) on the Foreign Relations Law of the United States Montevideo Convention of 1993 on Rights and Duties of States International Covenant on Civil an Political Rights and the International Covenant on Economic. also reaffirmed in the Declaration Granting Independence to Colonial Countries and Peoples (1960) and the Declaration on Principles of International Law concerning Friendly Reations and Cooperation among States (1970) Kat Aguila Kach H irang-O lave . other entities have already been considered subjects of international law. (2) Claims to be free from external coercion.54 ! A subject of international law is an entity that has rights and responsibilities under that law.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes Page 16 of 25 CHAPTER 5 SUBJECTS OF INTERNATIONAL LAW: STATES SUBJECTS OF INTERNATIONAL LAW. is dependent on recognition. • All peoples have a right to self-determination.58 • A state may be recognised as a legal person even though it is 54 55 involved in a dispute with its neighbours as to the precise demarcation of its frontiers.59 • Sovereignty.

61 Does admission of a government to the United Nations mean recognition by all members? No. local public debt and the rights and obligations of State A under contracts relating to that territory are transferred to State B. the property of A located in that territory passes to B. The Tinoco Arbitration Great Britain v. meaning that its being a state depends upon its possession of the required elements and not upon recognition. • Where part of State A becomes a separate state. • Where part of State A becomes a separate state. A’s property passes to B. Succession to public debts • Where part of the territory of State A becomes territory of State B. It merely emphasizes the point that the states are under no obligation to enter into bilateral relations.. 4. State A’s international agreements with respect to that territory ceases and the force of the treaty 61 62 Cruz Bernas Kat Aguila Kach H irang-O lave . but begins with a clean slate. it was a valid government regardless of who recognized it and who did not.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes Recognition is merely declaratory for the existence of the state. Consequences of Recognition of States and Governments: (1) Full diplomatic relations are established except where the government recognized is de facto. that is. RECOGNITION OF GOVERNMENT Recognition of government is the act of acknowledging the capacity of an entity to exercise powers of government of a state. wherever the property is located. a State may recognize another State as a state even if it does not have all the elements of a state found in the Montevideo Convention. the Government of Costa Rica was overthrown by Frederico Tinoco.62 Rules on Succession of States 1. Held: The Tinoco Government was an actual sovereign government and was in effective control of Costa Rica. • Where state A is absorbed by State B. (2) The recognized government acquires the right to sue in the courts of the recognizing state. local public debt. He eventually retired and left the country. • When State A is absorbed by State B. it is what makes a stae a state and confers legal personality on the entity. (2) Constitutive Theory Recognition constitutes a state. 3. Succession to territory • The succeeding state assumes all the capacities. Succession to contracts • When part of State A becomes territory of State B. SUCCESSION OF STATES Various views are adopted in relation to succession of States. both being British corporations. When is recognition terminated? Recognition of a regime is terminated when another regime is recognized. Others hold that succession has varying effects on states’ rights and obligations. property of the State A located in the territory of the separate state become the separated state’s. its status cannot be derecognized. (4) All acts of the recognized state or government are validated retroactively. rights and obligations of the predecessor state under contracts relating to the territory of the new state pass to the new state. Costa Rica (1923) Facts: In 1917. Page 17 of 25 preventing the recognizing state from passing upon their legality in its own courts. Succession to state property • Where a part of State A’s territory becomes territory of State B. rights and obligations of the predecessor state with respect to that territory 2. (3) The recognizing government has a right to the possession of the properties of its predecessor in the territory of the recognizing state. The non-recognition of other nations of a government claiming to be a national personality is usually appropriate evidence that it has not attained the independence entitling it under international law. rights and obligations of State A pass to State B. though it never really recognized the Tinoco government. The Tinoco Government had granted a concession to the Central Costa Rica Petroleum Company and was indebted to the Royal Bank of Canada. Great Britain is claiming on behalf of these coporation. But when recognition by such nations is determined by inquiry. In relation to the declaratory theory. which those applying the rules are concerned. Some suggest that the new state succeeds to absolutely no rights or obligations of the predecessor state. their nonrecognition loses something of evidential weight on the issue. Others claim that the successor state assumes all the rights and obligations of the predecessor state. For as long as a state continues to meet the qualifications of statehood. The recognition of states is decided mainly on the basis of political considerations. In 1922 the restored Costa Rican Government passed a law declaring all contacts entered into during the Tinoco government invalid. The recognition is only to the extent of the activities of the organization. the public debt. He assumed power in June 1917.

Marshall Islands 4. CLASSIFICATION OF STATES A. Federal State A union of previously autonomous entities. C. placing authority on the individual entities. It may either be: (1) Simple states A simple state is that which is placed under a single and centralized government exercising power over both its internal and external affairs. • Example: UN General assembly: 1 state = 1 vote. Dependent States Dependent states fall into two general categories. When there is a new state. each with its own separate government but bound under a central authority exercising to a greater or lesser degree control over their external relations.63 SOME INCOMPLETE SUBJECTS 1. (Because the new state accedes to no treaties unless those ratified by it) Uti possidentis rule: pre-existing boundary and territorial arrangements continue to be binding notwithstanding. it does not succeed to the treaties of the predecessor state unless it accepts agreements or agree to it or acquiesced to it. mutual nonaggression. 2. which is de jure part of China. B. There can be various arrangements. (c) Confederation – organization of states which retain their internal sovereignty and to some extent. Page 18 of 25 • • • act as one entity. Examples: (a) Real union – created when two or more states are merged under a unified authority so that they form a single international person through which they 63 Discussed in the Five Principles of Co-existence by India and China and the 1970 Declaration on Principles of International Law Friendly Relations and Cooperation Among States Kat Aguila Kach H irang-O lave . Mandated and Trust Territories Those placed by the League of Nations under one or other victorious allies of the World War I. resulting in the creation of a new state with full international personality to represent them in their external relations. this is called the “moving treaty rule” or “moving boundaries rule”. the protectorate and the suzerainty. Examples: Carolinas. (Basically.) When a State is absorbed by another State. the international agreements that govern the absorbed state will now be those applicable to the absorbing state. (b) Federal union – combination of two or more sovereign states which upon merger cease to be states. Marianas. the treaty follows the territory. This is called the “clean slate theory”. Neutralized States An independent state whether simple or composite may be neutralized through an agreement with other states by virtue of which the latter will guarantee the integrity and independence provided it refrains from taking any act that will involve it in war or other hostile activities except for defensive purposes. non-interference in state affairs. placing full authority in the central organ and on the other. Protectorates These are dependent states which have control over their internal affairs but whose external affairs are controlled by another state. Example: Switzerland was neutralized in 1815 and has managed to maintain its status despite the many wars that has engulfed Europe since the Congress of Vienna. Equality • Simply requires equality of legal rights irrespective of the size or power of the State. Taiwan Taiwan seems to be a non-state territory. (d) Personal union – comes into being when two or more independent states are brought together under the rule of the same monarch. As a right.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes transfers to State B. On the one hand. FUNDAMENTAL RIGHTS OF STATES Independence • The capacity if a state to provide for its own well-being and development free from the domination of other states. it means the right to exercise within its portion of the globe the functions of a state. their external sovereignty while delegating the collective body power to represent them as a whole for certain limited and specified purposes. (2) Composite states A composite state consists of two or more states. One view is that the protectorate always retains a greater measure of control over its external affairs than the suzerainty. 3. Independent States A state who is not subject from dictation from others with respect to the freedom to enter into external affairs is known as an independent state. Peaceful co-existence • Mutual respect for each other’s territory and sovereignty.

The Sovereign Order of Malta Italian Court of Cassation in 1935 recognized the international personality of Malta. it has diplomatic relations with over 40 states. Now. which recognized the Vatican City and the recognized and the Holy See’s sovereignty in the field of international relations.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes 5. Page 19 of 25 Kat Aguila Kach H irang-O lave . The Holy See and Vatican City The Lateran Treaty signed by Italy. 6.

5th ed.67 (Note that the discussion on the elements of legal capacity of States as discussed in Brownlie is similar to those of international organizations. 1949 (Midterms 2010 Question) Facts: In 1948. to bring into being an entity possessing objective legal personality. There are however. two basic categories of legal personality: objective and qualified personality. Brownlie provides for the fourth. Simply put. International law. in conformity with international law.65 (d) Immunities66 . States are the subjects of international law. Count Bernadotte. Insurgents 3.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes Page 20 of 25 CHAPTER 6 OTHER SUBJECTS OF INTERNATIONAL LAW Generally.68 Having an objective personality is harder to achieve because it may require the recognition of the entire international community or at least a substantial part of it. Individuals Note that the list is NOT exclusive. But how is such legal personality determined? It is determined by several factors including: (a) capacity to enter into relations with states and other organizations. Qualified Personality • Qualified personality is easier to achieve than objective personality.69 2. (erga omnes will be discussed in detail in State Responsibility) The Court held in the Reparations Case that 50 states have the power. 89 (2009) Kat Aguila Kach H irang-O lave . while carrying out his duties as a UN Mediator in Palestine. Shaw only provides for the first three elements. Public International Law. but the need for the effective exercise of their functions. NATURE AND CONSEQUENCES OF LEGAL PERSONALITY Subjects are not necessarily identical in the nature or extent of their rights. International Organizations 2. 69 Bernas. having rights and obligations directly under international law. because as opposed to the erga omnes nature of objective personality. 241 (2003) Shaw. International Law. • What this means is that an entity has international legal personality ONLY with regard to that entity that recognizes such personality. 241 (2003) 66 Brownlie 67 erga omnes are obligations owed by States to the international community as a whole intended to protect and promote the basic values and common interests of all. (b) conclude treaties with them and (c) the status it has been given under international law. This has been recognized by the ICJ in the Barcelona Tractions Case and further cited in the East Timor Case and the Israeli Wall Advisory Opinion.) ACQUISITION. Reparations for Injuries Suffered in the Service of the United Nations ICJ Advisory Opinion. • But how many States do you really need to vest an entity with objective international personality? 50. 64 65 Shaw. 5th ed. As international law evolved. will operate erga omnes. qualified personality is in personam. INTERNATIONAL ORGANIZATIONS In principle. There are other recognized subjects of international law namely recognized to have international legal personality.note that the basis for the immunities of international organizations is NOT sovereignty. National Liberation Movements 4. namely64 : ! ! ! ! International Committee of the Red Cross Holy See International Public Companies Transnational Corporations 1. it is established that international organizations possess objective international legal personality. however. the following have become recognized as subjects of international law: 1. The General Assembly then requested for the Court’s advisory opinion on the matter in determining two questions: (1) Does the UN have a capacity to bring an international claim against the responsible government with a view to obtaining reparation due to respect of the damage caused (a) to the United Nations and (b) to the victim or persons entitled through him? (2) If 1(b) is in the affirmative. how is the action of the UN reconciled with the rights possessed by the State of which the victim is a national? Held: 68 1. Objective Personality • The entity is subject to a wide range of international rights and duties and will be entitled to be accepted as an international legal person by any other international person with which it has relations. a Swedish national was murdered in Jerusalem (which at that time was under the control of Israel).

Israel paid for the UN claim of $54. signed and ratified the Charter. but has equipped it with organs and designated them with special tasks. As such.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes (1) The ICJ ruled unanimously regarding 1(a).628 arising from the murder of Count Bernadotte. it cannot carry out its functions if it was devoid of international personality. Membership o 2 kinds of members in the UN: (1) original or charter members • Those states which having participated in the UN Conference on International Organization or having previously signed the Declaration by the United Nations. is a necessary implication as being essential to the performance of its duties. 1 (4)]. The UN is a supreme time of international organization intended to exercise and enjoy functions and rights. What is the U. answering it in the affirmative. and be able to carry out the obligations of the Charter. o To be a center for harmonizing the actions of nations in the attainment of these common ends. In answering the question of whether or not a certain entity has international legal personality. Seven Cardinal Principle (Art. o May be considered a treaty because it derives it binding force from the agreement of the parties to it. (In 1950. The U. and by bringing about peaceful settlement of disputes.N. came into force on October 25. the UK. Soviet Union and China recognized the necessity of establishing a general international organizations based on principles of sovereign equality of States for the maintenance of international peace and security. and in promoting respect for human rights and fundamental freedoms. the characteristics of that entity (as conferred to it by its Charter) must be considered. o Qualifications to be eligible for elective membership: (1) It must be a state (2) It must be peace-loving (3) It must accept. Under international law. citing Oppenheim-Lauterpacht. which is an integral part of it. It does not mean that the UN is a State. the UN must be deemed to have those powers which though not expressly provided for in its Charter. • THE UNITED NATIONS What is the United Nations? It is a body which possesses juridical and international personality and is vested with prerogatives normally granted only to sovereign states. Annotation by Isagani Cruz Kat Aguila Kach H irang-O lave . Lebanon and Syria were included as original members although they were not yet states at the time. 1945 and upon 71 70 • • ratification by the five permanent members of the Security Council. 2.N Charter was signed on June 26. cultural and humanitarian character. US. UN Charter)72 : Coquia. Purpose of the UN (Art.) Page 21 of 25 • Court’s Opinion: The UN has international legal personality. 72 Annotation from International Law by Jorge Coquiat & Miriam Defensor-Santiago. Charter? o It consists of 111 articles besides the Preamble and concluding provisions. conclude treaties and govern territories. While not a stare or a superstate. • Brief history of the UN: o In the Moscow Declaration of General Security on November 1.70 o The initial blueprint of the organization was the Dumbarton Oaks Proposals which contained the tentative proposals for a General International Organization. what it simply means is that it is a subject of international law capable of possessing international rights and duties and that it has capacity to maintain rights by bringing international claims. Note: The Philippines. which can only be explained on the basis of the possession of a large measure of international personality and capacity to operate upon the international plane. 1945. (2) elective members o Other members may be admitted to the UN through the discretion of the General Assembly upon a favorable recommendation by the Security Council. social. It also includes the Statute of the International Court of Justice. be willing. 1943. the UN has such powers as to enable it to send and receive diplomatic agents. 1(b) was also upheld in the affirmative. What rights was it intended to possess? What functions was it obliged to carry out? The Charter not only intended the UN to be a “center for harmonizing actions of nations” [art. o It is intended to apply not only to the members of the Organization but also to non-Member states so far as may be necessary for the maintenance of peace and security. The UN has capacity to bring an international claim. o To develop friendly relations based on respect for the principle of equal rights and self-determination of peoples o To achieve cooperation in solving international problems of an economic. 1 of the UN Charter)71: o To maintain peace and security by taking collective measures to suppress acts of aggression.

The exceptions are: (1) where the international conflict aggravates into a threat or to an actual breach of international peace and security (2) where parties voluntarily invoke and submit to the jurisdiction of the UN for the settlement of the dispute.e. Union of Soviet Socialists Republics. which are elected by the General Assembly for 3-year terms and may be re-elected immediately. • Voting method: Each member has one vote74 .75 (2) The Security Council • The key organ of the UN in the maintenance of international peace and security. • The Security Council may take steps for the pacific settlement of disputes or when necessary even preventive or enforcement action. Decisions on matters such as recommendations concerning international peace and security. Efforts to settle disputes must not endanger international peace. questions relating to the trusteeship system. Peaceful settlement of disputes The most common amicable methods of settlement of disputes include the active participation of the ICJ and Security Council. the right to equality) Good faith The UN Charter partakes in the nature of a treaty. but distinction is to be made between the Big Five and the other members in the resolution of substantive questions. each of which is entitled to send not more than 5 representatives73. o Procedural matters affirmative vote of any of any nine or more members (3) The Economic and Social Council • Composed of 54 members. 9(1). (4) The Trusteeship Council • The organ charged with the duty of assisting the Security Council and the general assembly in the administration of the international trusteeship system. Inclusion of non-members into the UN Charter coverage (discussed elsewhere in this reviewer) Domestic jurisdiction clause The rule is. Page 22 of 25 o o o o What are the six principal organs of the United Nations? (1) General Assembly • The most representative of the organs of the UN which consists of all the members of the Organization. • It meets in regular annual session beginning on 3rd Tuesday of September or in a special session upon the call of a majority of its members or at the request of the Security Council. 74 Art. • Composition: o The members of the UN administering trust territories o The permanent members of the Security Council not administering trust territories UN Charter. and the US or the “Big Five”).e. 18(1). UN Charter. it cannot be the subject of intervention by the United Nations. • Voting method: Each member has one vote and decisions are reached by the majority of those present and voting. and must be complied with in good faith in accordance with the principle of pacta sunt servanda. unless parties themselves submit the matter to the UN. that is. This categorical outlawry of war is the most important principle. security and justice. admission. UN Charter The elective members are elected for two-year terms by the General Assembly. Art. under the authority of the General Assembly is vested with responsibility for the promotion of international and social cooperation. Mutual assistance The efficacy of the UN will depend upon the cooperation extended to it by the member-states. • Voting method: o Substantive questions Each member shall have one vote. as long as the matter remains internal. • The Council. suspension and expulsion of 75 73 members. 18(2). • The Council meets in regular session in accordance with its rules and in special session at the request of a majority of its members. Prohibition on threat and the use of force This principle prohibits threat or force upon the territorial integrity or political independence of states with certain exceptions.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes o o o Sovereign equality Based on one of the fundamental rights of states (i. civil war 76 Kat Aguila Kach H irang-O lave . it must not be an internal dissention77. UK. • The Council approves trusteeship agreements in strategic areas. election of members of the Councils. France. Art. • It consists of 5 permanent members (China. and 10 elective members76 . 77 i. The only limitation is that the dispute must be international. and budgetary matters require two-thirds of those present and voting.

as well as to not commit international crimes such as aggression. 4. NATIONAL LIBERATION MOVEMENTS NLMs are organized groups fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination. o He also acts as a secretary in all meetings of the other organs and performs such other functions as may be assigned to him by these organs. the ‘material field of application’ must be met: First. Its jurisdiction is based on the consent of the parties as manifested under the “optional jurisdiction clause” under Art. 13. 165 Kat Aguila Kach H irang-O lave . they are subjected to the jurisdiction of the ICC or the International Criminal Court. Insurgents may enter into valid arrangements in certain instances but this would depend on the administration 78 79 Art. there has to be control over a part of its territory as to enable them to carry out sustained and concerted military operations. with reelection. (5) The International Court of Justice • The judicial organ of the UN which functions in accordance with the Statute. 18(1). o No two of the judges may be nationals of the same state79 . p. No judge can be removed unless. in the unanimous opinion of the other members. These international obligations of individuals may include the obligation to comply with regulations of armed conflict. o The members has a term of 9 years80 and may be re-elected. What happens when these requisites are met? First. not the ICJ!) 2. INDIVIDUALS Individuals have now come to be recognized as possessing rights and obligations under international law albeit these rights are limited. they are seen as having treaty-making capacity. INSURGENTS Insurgents become subjects of international particularly in instances wherein a noninternational armed conflict exists (NIAC will be discussed in later chapters). Page 23 of 25 of specific territory. (If they do commit these crimes. genocide. 80 Art. and other crimes against humanity. he has ceased to fulfill the required conditions. Term: 5 years. o The Sec-Gen is the highest representative of the UN and is authorized to act on its behalf. He is entitled to full diplomatic immunities and priveleges. which is headed by the Secretary-General.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes o As many other members elected for 3-year terms by the General Assembly as may be necessary. 36 of the Statute. AP II applies. 3(1). terrorism.81 • The functions of the Court are to decide contentious cases and to render advisory opinions. the armed dissidents have armed command Second. the insurgents will be recognized of belligerent status and second. The elements of NLMs are: (1) they are based on territories which they are seeking to liberate and (2) a goal of self-determination. Statute of the ICJ Ibid. Statute of the ICJ 82 Oppenheim’s International Law. 3. o The judges must be of high moral character and possesses the qualifications required in their respective countries for appointment to the highest judicial offices. He also prepares the budget of the UN. o The Sec-Gen is chosen by the General assembly upon recommendation of the Security Council. to be submitted to the General Assembly. Statute of the ICJ 81 Art. • The Court is composed of 15 members78 who are elected by absolute majority vote in the General Assembly and the Security Council. (6) The Secretariat • The chief administrative organ of the UN. And in order for insurgents to be considered as being part of a non-international conflict. They may also give advisory opinions upon the request of the General assembly or the Security Council.82 In NIAC.

• What is the territorial sea? The territorial sea may be described as the belt of waters adjacent to the coasts of the state. 85 This doctrine has been embodied in the 1982 Convention of the Law of the Sea with the modificatioin that archipelagic sealanes shall be designated over the internal waters of the archipelago through which foreign vessels shall have the right of passage. gulfs. cession. 5446. 86 83 84 Cruz The new convention on the law of the swas 87 Kat Aguila Kach H irang-O lave . or consist of one whole island. not subject to entry by foreign vessels without the consent of the local state. Basis of this article: RA no. but must not be so extensive as to be difficult to administer or defend from external aggression. 1 of the 1987 Constitution86. and other submarine areas. the claim of the Philippines to its territorial sea was based on historic right or title which embraces all non-internal waters comprised within the limits set forth in the Treaty of Paris. Chicago Convention on International Civil Aviation (1944). man-made canals within the land mass. Sec. prescription. as well as external waters in the territorial sea. It must also be big enough to provide for the needs of the population. Art. in defining the internal waters of the archipelago. natural causes.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes • Page 24 of 25 CHAPTER 7 TERRITORY What is the definition of territory? It is the fixed portion of the surface of the earth inhabited by the people of the state. This doctrine puts forth the view that all the 7. 3046 as amended by R. form part of the internal waters of the Philippines. consisting of its terrestrial. I. erosion. • Includes internal waters in the land-locked lakes. the subsoil. Sec. revolution. • Every state has complete and exclusive sovereignty over the airspace above its territory. • Lost by: abandonment or dereliction. What is the Archipelago Doctrine?85 The Philippine position on the definition of its internal waters is commonly known as the archipelago doctrine. and straits. regardless of their breadth and dimensions. What are the components of territory? (1) The terrestrial domain • Refers to land mass which may be integrated or dismembered or partly bounded by water. and all other territories over which the Philippines has sovereignty or jurisdiction. straight baselines should be drawn to connect appropriate points of the outermost islands without departing radically from the general direction of the coast.87 How is territory acquired or lost? • Acquired by: discovery and occupation.100 islands should be considered one integrated whole instead of being fragmented into separate units. The waters around. including its territorial sea. cession. fluvial and aerial domains. which is articulated in Art. with all the islands and waters embraced therein. subjugation. Paris Convention on Aerial Navigation (1919). Hence. rivers. 1 states: “The national territory comprises the Philippine archipelago. accretion. and certain bays. prescription. the insular shelves. (2) The maritime and fluvial domain • Consists of bodies of water within the land mass and the waters adjacent to the coasts of the state up to a specified limit.A no.83 It must be permanent and indicated with precision because jurisdiction is determined on the basis of such. Previously. The waters inside the baseline shall be considered internal and thus. excluding the internal waters in bays and gulfs. the seabed. according either to the normal baseline method or the straight baseline method. each with its own territorial sea. (3) The aerial domain • The airspace above the terrestrial domain and the maritime and fluvial domain of the state to an unlimited altitude but not including outer space. o Normal baseline method – the territorial sea is drawn from the low-watermark of the coast to the breadth claimed following its sinuosity and curvatures but excluding internal waters in bays and gulfs. • The territorial sea may be defined regardless of its breadth. I. between. subjugation. and all applicable laws. and connecting the islands of the archipelago.”. o Straight baseline method – straight lines are made to connect appropriate points on the coast without departing radically from its general direction. • The Philippine territorial sea is now limited to 12 miles from the low-water mark of our coasts84.

Prescription • Prescription requires long. Rep. • Example: purchase by the US of Alaska from Russia in 1867. as by the gradual and imperceptible deposit of soil on the coasts of the country through the action of water or by reclamation projects. because the annexation is the act that completes the acquisition. • Conquest alone confers only inchoate rights. of Int. The Island of Palmas Case88 Title was disputed between the US and the Netherlands to an island situatied between the boundaries of the Philippine archipelago as ceded to the former Spain under the Treaty of Paris. 231 Kat Aguila Kach H irang-O lave . continued and adverse possession to vest acquisitive title in the claimant. sovereignty in our country did not pass from US due to its inability to exercise it. gift by Austria of Lombardy to France in 1859. 88 2 U. • Illustration: during the Japanese occupation in the Philippines. • Transfer of title is effected upon the meeting of the minds of the parties. The arbitrator held that discovery alone without any subsequent act cannot suffice to prove sovereignty. and is effected through transactions such as sale. Cession • It is a method by which territory is transferred from one state to another by agreement between them. Dereliction • This occurs when the state exercising sovereignity over it physically withdraws from it with the intention of abandoning it altogether. Arb. and testamentary disposition. and the Netherlands asserted that it had possessed and exercised sovereignty.P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER Bernas + Brownlie + Cruz + Shaw + Lecture Notes Page 25 of 25 Discovery and Occupation • It is an original mode of acquisition by which a territory not belonging to any state or terra nullius is placed under the sovereignty of the discovering state (except. barter or exchange. The US primarily based its claim on the right of discovery of the island by Spain. However. (2) Administration of the territory Subjugation • Territory is deemed acquired by subjugation when having been previously conquered or occupied in the course of war by the enemy. donation. no rule on the period of possession necessary to transfer title have yet been established. it is formally annexed to it at the end of the war. • Requisites: (1) Possession must be claimed on behalf of the state represented by the discoverer and may be effected through a formal proclamation and the symbolic act of raising the national flag in the territory. Accretion • Accomplished through both natural and gradual processes. Awards.N. since cession is essentially consensual. the exchange between Great Britain and Germany of the island of Helgoland in 1890. the open seas or outer space which is res communes and not susceptible to discover and occupation).

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