PUBLIC INTERNATIONAL LAW Atty. Cecilio D. Duka, Ed.D.

* Associate Dean, College of Law San Sebastian College, Manila International Law Defined International law is the body of legal rules which apply between sovereign states and such other entities as have been granted international personality. Basis of International Law 1. The Law of Nature School - There is a natural and universal principle of right and wrong, independent of mutual intercourse or compact, which can be discovered and recognized by every individual through the use of his reason and conscience. Since individual compose the state whose will is but the collective will of the inhabitants, the state also becomes bound by law of nature. 2. The Positivist School - The binding force of international law is derived from the agreement of the states to be bound by it. In this context, international law is not a law of subordination but of coordination. 3. The Eclectic/Grotian School - It represents the compromise between the first two schools of thought and submits that international law is binding partly because it is good and right and partly because states have agreed to be bound by it. International Community The international community maybe described as the body of judicial entities which are governed by international law. It is often and traditionally called the family of nations. Colonies and Dependencies A colony is a dependent political community consisting of a number of citizens of the same country who have migrated therefrom to inhabit another country but remain subject to the mother state. A dependency is a territory distinct from country in which the supreme sovereign power resides, but belongs rightfully to it and subject to the laws and regulations which the sovereign may prescribe. Bellingerent Community It may be described as a group of rebels under as organized civil government who has taken up arms against the legitimate government. When recognized, it is considered separate state for purposes of the conflict and is entitled to all the rights and subjected to all the obligations of a full-fledged belligerent under the laws of war. It may exercise the rights of visit and search, siege contraband and establish blockades. Any injury it may cause third states or their nationals is imputable to it and not to the legitimate governmental which it is resisting. International Administrative Bodies They may be considered as a subject of international law when they are autonomous, i.e. they are not subject to the control of any single state and their purposes are mainly non-political.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -----* Associate Dean, San Sebastian College of Law, Author – Labor Laws and Social Legislation: A Barrister’s Companion, Bar Reviewer in Political Law and Labor Laws, Recoletos Law Center, Jurists Bar Review Center, Legal Advantage Bar Review Center, Cosmopolitan Review Center, University of Nueva Caceres, University of Pangasinan, MCLE Lecturer in Political and Public International Law and Labor Laws and Social Legislations, Reviewer, Licensure Examination for Teachers, Manila Review Institute. Partner – Lameyra Law Office.

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It is the principal deliberative body of the organization and is vested with jurisdiction over matters concerning the internal machinery and operations of the United Nations.N. By a vote of 2/3 of the members of the General Assembly and ratified in accordance with their respective constitutional processes by 2/3 of the members of the U. B. on ground of persistently violating the principles contained in the Charter. Membership i.. the development of friendly relations among the members of the international community. Accept the obligations under the charter. CHARTER a. THE U. A general conference. To lift the suspension a qualified majority vote of the Security Council is needed. Expulsion 2/3 vote of those present and voting in the General Assembly. the maintenance of international peace and security. the attainment of international cooperation and harmony in the actions of nations. Elective ii. All members are represented in it and it exercises powers and functions with respect to the other organs. C. 1945. including the permanent members of the Security Council. c.United Nations It is an international organization vested at the San Francisco Conference which was held in the United Sates from April 25 to June 26.N.N. succeeded the League of Nations and is governed by a charter which came into force on October 24. -. Purpose The principal objectives of the U. PRINCIPAL ORGANS 1. Suspension The same vote required as in admission. upon recommendation of a majority of the Security Council. v. Qualifications A. UN General Assembly It is the central organ of the United Nations.N. including all the permanent members of the Security Council. Admission Decision of 2/3 of those present and voting in the General Assembly upon recommendation of at least 9 members of the Security Council. Participating in the meeting of the General Assembly B. the Trusteeship Council. b. the Economic and Social Council. Original B. Peace loving. The suspended member is prohibited from: A. may propose amendments by a 2/3 vote of the conference and shall take effect when ratified by 2/3 of the members of the U. Is able and willing to carry out these obligations. Composed originally of only 51 members. D. called by a majority vote of the General Assembly and any 9 members of the Security Council. iii.But nationals may continue serving in the Secretariat and the International Court of Justice and still subject to discharge it's obligations under the Charter. Must be a state. ii. Be elected to or continue to serve in the Security Council. iv. The U. Classes A. Amendment i. are the prevention of war..N. 2 . 1945.

5 of which are permanent. Composition: 15 members. The right of existence and self-defense. 3. 4. By Unification.called big five and the other ten members are elected for 2-year terms by the General Assembly. 5 from the African and Asian states. By Succession. UN Economic and Security Council Recognizing that the promotion of social progress and better standards of life in larger freedom is indispensable to world harmony and order. By Revolution. His term is fixed at 5 years by resolution of the General Assembly and he may be re-elected. By Agreement. The SecretaryGeneral is chosen by the General Assembly upon recommendation of the Security Council. Composition: 54 members elected by the General Assembly for a staggered term of 3 years with right to run for re-election. 5. UN Security Council It is an organ of the United Nations primarily responsible for the maintenance of international peace and security. 3 . By Attainment of Civilization. 2 from Latin American states and 2 from western European and other states. UN Secretariat The chief administrative organ of the United Nation is the Secretariat. Fundamental Rights of a State 1. Composition: 15 members who must be of high moral character and possess the qualifications required in their respective countries for appointment to the highest judicial office or are jurisconsults of recognized competence in international law. International Court of Justice It is a judicial organ of the United Nations.2. By Assertion of Independence. These members are not eligible for immediate re-election. the United Nations Charter has created an organ charged with the particular duty of pursuing this objective. 6. Many members of the United Nations elected for 3 year terms by the General Assembly 5. one from the eastern European states. Composition: A. UN Trusteeship Council It is the principal organ of the United Nations which is directly charged with the administration of the international trusteeship system. 2. 3. 4. which is headed by a Secretary-General. Creation of States 1. Members of the big five not administering trust territories C. 6. Their term is so staggered as to provide for the retirement of onehalf of them every year. Members of the United Nations administering trust territories B. The so.

The right of property and jurisdiction. The recognition is relatively permanent. It may be made through a formal proclamation. 3. Declarative (Majority View) . Constitutive (Minority View) . recognition is generally considered as de jure. 2. 2. 2. 2. The right of equality.Extended by the recognizing state which believes that some of the requirements for recognition are absent. The recognition is generally provisional and limited to certain judicial relations. a letter or telegram. 3. a stipulation in a treaty. That which is established by the invading forces of one belligerent in the territory of the other belligerent. 3. The government is stable and effective with no substantial resistance to its authority. on the occasion of an official call. whether as de facto or de jure. a Government. a belligerent community. Kinds of Recognition: 1. Under this view. 2. The government must enjoy popular consent or approval of the people..Recognition is the act which constitutes the entity into an international person.it is affected when the recognizing and recognized states enter into a treaty regulating their relations in general or when they exchange diplomatic representatives. Theories on Recognition 1. 4. It is discretionary and political. It does not bring about full diplomatic intercourse and does not give title to assets of the state held or situated abroad.Recognition merely affirms an existing fact.may be verbal or in writing. The right of legation or diplomatic intercourse. like the possession by the state of the essential elements. When there is no specific indication. 4 . 2. That which is established by the inhabitants of a state who secede therefrom without overthrowing its government. etc. recognition is compulsory and legal.Extended to a government fulfilling the requirements for recognition. It may be compelled once the elements of a state are established. The government must show willingness and ability to discharge its international obligations. Requirements for Recognition of Government: 1. Kinds of De facto government: 1. brings about full diplomatic intercourse and observance of diplomatic immunities and confers title to assets abroad. Express. 5. Recognition to a De Facto Government: . a state. That which is established by the inhabitants who rise in revolt and depose the legitimate regime. 3. the government of which is also displaced. Objects of Recognition: Recognition is extended to: 1. Recognition It is an act by which a state acknowledges the existence of another state. Recognition to a De Jure government: .The right of independence. Implied. a government or belligerent community and indicates its willingness to deal with the entity as such under the rules of international law.

2. The Aerial Domain – it is the airspace above the territorial domain and the maritime and fluvial domain of the state. Possession – it must be claimed in 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. *Requisites of discovery and occupation: 1. between and connecting the islands of the archipelago. to the limits of the atmosphere.No recognition of a government established through external aggression. bays and straits and the territorial sea.Precludes recognition of any government established by revolutionary means until constitutional reorganization by free election of representatives. It includes land-locked lakes.Wilson . like Burma. Section 1 of the 1987 Constitution) 5 . It may be integrated. like Iceland. (Article 1. 3. regardless of their breadth or dimension. or may be partly bounded by water. Dealing or not dealing with the government is not a judgment on the legitimacy of the said government. The Maritime and Fluvial Domain – it consists of the bodies of water within the land mass and waters adjacent to the coasts of the state to a specified limit. Terrestrial Domain – it is the landmass on which the people live. Modes of Acquisition of Territory: 1. a state may not issue a declaration giving recognition to such government. Components of Territory: 1. which provided that the contracting powers agree not to have recourse to armed force for the recovery of contract debts claimed from the government of one country by the government of another country as being due its nationals. 2. are to be treated as internal waters. but merely accept whatever government is in effective control without raising the issue of recognition.Since recognition has been construed as approval of a government established through a political upheaval. Stimson Doctrine . The territory need not be uninhabited provided it can be established that the natives are not sufficiently civilized and can be considered as possessing not rights of sovereignty but only rights of habitation. Archipelagic Waters * THE ARCHIPELAGIC DOCTRINE – The waters around. or completely surrounded. as in the case of United States. 6. as in the case of Iran. The Drago Doctrine .The Drago doctrine embodied in the Hague Convention of 1907. Administration Both requisites must concur. like the Philippine Archipelago. rivers. or dismembered. or may consist of several islands. Discovery and Occupation – it is an original mode of acquisition by which territory not belonging to any state or terra nullius.Tobar Doctrine . man-made canals. is placed under the sovereignty of the discovering state. This does not include outer space. Estrada Doctrine . Absence of one will not give rise to acquisition of territory. the waters in certain gulfs.

*Freedom of Navigation – refers to the right to sail ships on the high seas. inter-connecting waters and other natural features which are closed interrelated in such islands. In case the continental shelf extends to the shores of another state. Technically. General Rule: Ships of all states enjoy the right of innocent passage through the territorial sea. the boundary shall be determined in accordance with equitable principles. the coastal state may exercise limited jurisdiction over the contiguous zone. economic and political entity or which historically has been regarded as such. seabed. 8. states that “the contracting parties recognize that every state has complete and exclusive sovereignty over the air space above its territory” but this shall not include outer space. but the coastal state may exercise sovereign rights over economic resources of the sea. are not territory of any particular state. States with overlapping exclusive economic zones are enjoined to enter into the appropriate treaty for the joint exploitation and utilization of the resources in the area. waters and other natural features which from an intrinsic geographical. The coastal state also enjoys the right of exploitation of oil deposits and other resources in the continental shelf. immigration or sanitary laws. The waters inside these baselines shall be considered internal and thus not subject to entry by foreign vessels without the consent of the local state. High Seas – The high seas are treated as res communes or res nullius. Contiguous Zone – Extends up to 12 nautical miles from the territorial sea. *Straight Baseline Method – In defining the internal waters of the archipelago. not part of the territory of the state. *Aerial Domain • International Convention on Civil Aviation. from the baselines. Other states have no right of innocent passage over the air territory of another state. 11. including parts of islands. 7. 9. Exclusive Economic Zone – Extends up to 200 nautical miles from the low-water mark or the baselines. the area beyond the territorial sea is not part of the territory of the state. which is considered as res communes. subsoil although other states shall have freedom of navigation and over flight. 1944. and the high seas on the other. The passage must be continuous and expeditious except in cases of force majure. They are outside the commerce of man and cannot be the object of any mode 6 . to prevent infringement of customs. fiscal. to lay submarine rabbles and pipelines and other lawful uses. Territorial Sea – The belt of the sea located between the coast and internal waters of the coastal state on the one hand.*Archipelago – A group of islands. 10. Submarines and other underwater craft are required to navigate on the surface and to show their flag. December 7. extending up to 12 nautical miles from the low-water mark or in the case of archipelagic states. Although technically. Continental Shelf – It comprises the seabed and the subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin or to a distance of 200 miles from the baselines from which the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance. straight baselines should be drawn to connect appropriate points of the outermost islands without departing radically from the general direction of the coast so that the entire archipelago shall be encompassed as one whole territory. or is shared with another state. • Outer space – they are res communes and belong to all mankind. subject only to international law and the laws of the flag state. or thus.

not to be treated as pirates. when jurisdiction is waived or cannot be exercised by the territorial sovereign or when such vessels are on the open seas. 2. However. the subsoil and the superjacent waters. immigration and sanitary regulations and punish the said infringement. Jurisdiction Over Patrimonial Sea or Exclusive Economic Zone Under the UN Convention on the law of the sea. laying submarine cables or fishing. as long as it is not prejudicial to the peace. Innocent Passage – means navigation through the territorial sea of a state for the purpose of traversing that sea without entering internal water. French Rule – flag state shall have jurisdiction over all offenses committed on board the vessel except those which compromise the peace of the port. the coastal state may exercise the control necessary to prevent infringement of its customs. In cases the continental shelf extends to the shores of another state. the boundary shall be determined in accordance with equitable principles. the public vessels or aircraft of a belligerent state may visit 7 . the local state exercises either civil or criminal jurisdiction. good order or security of the coastal state. or making for the high seas from internal waters. criminal jurisdiction is determined according to the: a. on the other hand. Jurisdiction Over Land Territory The state exercises jurisdiction over everything found within its territorial domain except from the exemption stated above. English Rule – the coastal state shall have jurisdiction over all offenses committed on board the vessel except those which do not compromise the peace of port. in the territory of other state or on the open seas. Insurgents may. 3. whether they are in its own territory. as well as the production of energy from the water. the coastal state has sovereign rights over the exclusive economic zone for purposes of exploring and exploiting. are under its jurisdiction when they are within its territory. whether living or non-living. provided they are not engaged in private business. or is shared with another state. flying over them. conserving and managing the natural resources. *Jurisdiction Over Maritime Territory Over foreign public vessels. Jurisdiction Over Open Seas The open seas or the high seas are res communes and available to the use of all states for the purposes of navigation. to whose territory they may be brought for trial and punishment. Over foreign private or merchant vessels. fiscal. currents and winds. In the exercise of the right of visit and search – under the laws of neutrality. Jurisdiction Over the Continental Shelf The coastal state enjoys the right of exploitation of oil deposits and other resources in the continental shelf. or of proceeding to internal waters. to lay submarine cables and pipes and other lawful uses. *Jurisdiction Over Contiguous Zone Under the UN Convention on the laws of the sea. b. A state may exercise jurisdiction on the open seas in the following instances: 1. the local state exercises full jurisdiction. Over pirates – pirates are enemies of all mankind and they may be captured on the open seas by the vessels of any state. Over its vessels – the flag state has jurisdiction over its public vessels at times. not political motives.of acquisition. therefore. Piracy is committed for private ends. Other states shall have the freedom of navigation and over-flight. Merchant vessels. of the seabed.

the distinction is purely municipal and has no international significance. His quarters. He is immune from criminal and civil jurisdiction. civil or military. otherwise. this refers to the right of the state to send and receive diplomatic missions. such as the negotiation of a treaty or attendance at a state function like a coronation or a funeral. To be lawful. archives. Sometimes state may appoint special diplomatic agents changed with either political or ceremonial duties. 3. except when he himself is the plaintiff. the sovereignty of the state. Also known as the right of diplomatic intercourse. the pursuit must be begun before the offending vessel has left the territorial waters or the contiguous zone of the coastal state with respect to violation of rights enforceable thereon. It is not a natural or inherent right. *Distinction Between Treaty and Executive Agreement An executive agreement is not a treaty insofar its ratification may not be required under our Constitution. for the purpose of regarding their mutual relations under the law of nations. 8 . Moreover. may pass through the aerial domain of a state without its consent. 2. Agents of Diplomatic Intercourse 1. which is entered into by states or entities possessing the treaty.He is the embodiment of. and is not subject to tax or exchange or currency restrictions. and represents. To make it possible for the parties to modify rules of international customary law by means of optional principles or standards. To provide the humus for the growth of international customary law. and enjoys the right to special protection for his physical safety and the preservation if his honor and reputation. Under the doctrine of hot pursuit – if an offense is committed by a foreign merchant vessel within the territorial waters of the coastal state. which enables states to carry on friendly intercourse. its own vessels may pursue the offending vessel into the open seas and upon capture bring it back to its territory for punishment. 2. Hence. Jurisdiction Over Aerial Domain The consensus is that the subjacent state has jurisdiction over the airspace above it to the upward limits of the atmosphere. 4. usually but not necessarily in writing. it will be deemed to have cooled and can no longer be resumed. Treaty – it is a formal agreement. the pursuit must be continuous or unabated. 4. To enable the parties to settle finally actual and potential conflicts. the foreign secretary is the immediate representative of the head of state and directly under his control. property and means of transportation are inviolate under the principle of exterritoriality.and search any neutral merchant vessel on the open seas and capture it if found to be engaged in activities favorable to the other belligerent. To pave the way for the transformation of unorganized international society into one which may be organized ion any chosen level of social integration. 3. Functions of Treaties 1. but exists only by common consent. The Members of the Diplomatic Service 4.making capacity. However. The Foreign Secretary or Minister – Under the municipal law of most states. No legal liability is incurred by the state for refusing to send or receive diplomatic representatives. no foreign aircraft. From the standpoint of international law. He can make binding declarations on behalf of his state on any matter falling within his authority. Head of State . “treaties and executive agreements are alike that both constitute equally binding obligations upon the nation. The Right of Legation It is the right of a state to maintain diplomatic relations with other states.

Under the principle of specialty. 2. Fundamental principles concerning treaties 1. 3. Under the Attentat Clause. such as conflicts between the treaty and its constitution or prejudice to the national interest as a result of the operation of the treaty. In order to constitute an offense of a “political character” there must be two or more parties in the state. The doctrine cannot operate retroactively upon the provisions of the treaty already executed prior to the change in circumstance. Neither is 9 . Fundamental Principle of Extradition 1. Political and religious offenders are generally not subject to extradition. Any person may be extradited. Through their authorized organs or representatives 3. a fugitive who is extradited may be tried only for the crime specified in the request for extradition and included in the list of offices in the extradition treaty. The surrender is made at the request of the latter state on the basis of an extradition treaty while deportation is the expulsion of an alien who is considered undesirable by the local state. The doctrine must be invoked within a reasonable time from the occurrence of the change asserted. Deportation is the unilateral act of the local state and is made in its own interests. Without the attendance of duress. mistake or other vice of consent. The vital change claimed as justification for the discontinuance of the treaty must have been unforeseen or unforeseeable and must not have been caused by the party invoking the doctrine. Pacta sunt servanda – it means that treaties must be observed in good faith despite hardship on the contracting state. fraud. In accordance with their respective constitutional processes. Rebus sic stantibus – according to Jessup. a party must comply with the provisions of a treaty and cannot ignore or modify it without the consent of the other signatory. a. the local state may grant asylum to the fugitive 3. of the state of refuge or of another state. 3. b. the murder of the head of state or any member of his family is not to be regarded as a political offense. Willful disregard or violation of treaties without just cause is frowned upon by the society of nations. 2. for punishment. If surrender is made. In absence of a treaty. “ would justify non-performance of a treaty obligation if the conditions in relation to which the parties contracted have changed so materially and so unexpectedly as to create a situation in which the exaction of performance would be unreasonable”. 4. Extradition . 2.Essential Requisites of Valid Treaty 1. Basis of Extradition: 1. each seeking to impose the government of their own choice on the other. Entered into by parties having the treaty-making capacity. On a lawful subject 5.The surrender of a person by one state to another state where he is wanted for prosecution or if already convicted. the same is merely a gesture of comity. whether he is a national if the requesting state. 4. A treaty 2. for punishment. It applies only to treaties of indefinite duration. Distinction between Extradition and Deportation Extradition is the surrender of a fugitive by one state to another where he is wanted for prosecution or if already convicted. Extradition is based on consent of the state of asylum as expressed in a treaty or manifested as an act of goodwill. 2. *Limitations on the Doctrine of rebus sic stantibus: 1. 4. usually but not necessarily to his own state. As a general rule.

9. state of refuge will conduct a judicial investigation to ascertain if the crime is covered by the extradition treaty and if there is a prima facie case against the fugitive delivered to the state of refuge. Manila. Rex 2. The act for which the extradition is sought must be punishable in both the requesting and requested state under what is known as the rule of double criminality. Manila Review Institute. Inc. Culture and Civilization. C and E Publishing. Manila Review Institute Inc. 1999 Reviewer for the Licensure Examination for Teachers. Duka’s Published Works 1. 10 . Philosophical and Legal Foundations of Education. the Supreme Court ruled that extradition proceedings are sui generic and are not criminal proceedings which automatically call into operation all the rights of an accused as guaranteed in the Bills of Rights. Settlement of International Disputes International Disputes It is an actual disagreement between states regarding the conduct to be taken by one of them for the protection or vindication of the interests of the other.In Secretary of Justice vs. Rex Bookstore. A situation is the initial stage of dispute. Labor Laws and Social Legislations: A Barrister’s Companion. Rex Bookstore. 3. 2008 The Struggle for Freedom: A Textbook on Philippine History. 6. Philosophy of Education. 2001 World Geography. 1997. 4. Rex Bookstore. Procedure of Extradition 1. In absence of special agreement. Manila. 2005 Reviewer for the Civil Service Examination. 2. 2008 Introduction to Asia: History. Phoenix Publishing House.com Atty. Lantion. 6. Hostile method Delight yourself in the eyes of the Lord and He will give you the desires of your heart Psalm 37:4 attycdduka@yahoo. made through diplomatic channels to the state of refuge. 2001. Modes of Settling Disputes 1. 7. . Upon receipt of the request. 8. Historical. Amicable method 2. 1998. Rex Bookstore. accompanied by the necessary papers relative to the identity of the wanted person and the crime alleged to have committed or which he has already been convicted. 2008 The Law and the Teaching Profession in the Philippines. the offense must have been committed within the territory or against the interests of the demanding state.genocide. Bookstore. 5. Extradition proceedings do not involve the question of guilt or innocence of the person to be extradited. Request. 5.