1 PUBLIC INTERNATIONAL LAW

Public International Law body of rules and principles which govern the relations of states and other entities invested with international legal personality. Private International Law part of the law of each State which determines whether the law of some other State will be recognized. Doctrine of Incorporation Rules of international law form part of the law of the land and no further legislative action is needed to make such rules applicable in the domestic sphere. It is applied whenever local courts are confronted with situations in which there appears to be a conflict between a rule of international law and the provisions of the local states constitution/statute. Efforts should first be exerted to harmonize them, so as to give effect to both. If the conflict is irreconcilable and a choice has to be made, jurisprudence dictates that the municipal courts should uphold municipal law. The fact that international law was made part of the law of the land does not pertain to or imply the primacy of international law over national/municipal law in the municipal sphere. Doctrine of Transformation Legislative action is required to make the treaty enforceable in the municipal sphere. Pacta Sunt Servanda International agreements must be performed in good faith. A state which has contracted 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. Contract Treaties Bilateral arrangements concerning matters of particular or special interest to the contracting parties but may become primary sources of international law when different contract treaties are of the same nature, containing practically uniform provisions, and are concluded by a substantial number of States. Law-making Treaty Concluded by a large number of States for purposes of: 1. Declaring, confirming, or defining their understanding of what the law is on a particular subject; 2. Stipulating or laying down new general rules for future international conduct; 3. Creating new international institutions International Customs supplements treaty rules. It has come to be accepted as binding by the mere fact of persistent usage over a long period of time. It exists when a clear and continuous habit of doing certain things develops under the CONVICTION that it is obligatory and right. General Principles of Law Recognized by Civilized Nations resorted to whenever no custom or treaty provision is applicable. Judicial Decisions A secondary source of international law having considerable influence as an impartial and well-considered statement of the law. The cumulative effect of uniform decisions of the courts of the most important States is to afford evidence of international custom. Teachings of the most highly qualified publicists Such works are resorted to by judicial tribunals not for the speculation of authors concerning what the law ought to be, but for trustworthy evidence of what the law really is. Subject An entity that has an international personality, can directly enforce its rights and duties under international law, and may be held directly accountable for its obligations. Object A person or thing in respect of which rights are held and obligations assumed by the subject. An intermediate agency is required for the enjoyment of its rights and for the discharge of its obligations. State (persons, territory, government, sovereignty) a group of people living together in a definite territory under an independent government organized for political ends and capable of entering into international relations. De Jure Government One with rightful title but not power or control. De Facto Government A government of fact that exercises power or control, but has no legal title. Constituent constitutes the very bonds of society (compulsory). Minisrant undertaken to advance the general interests of society (merely optional). Change of Government by Constitutional Reform rights and obligations of the former government are inherited by the successor government. Change of Government by Extra-Constitutional Means rights of the former government are inherited, but may lawfully reject the purely personal or political obligations of the former government but not those contracted by it in the ordinary course of official business. Legal Sovereignty the authority which has the power to issue final commands. Political Sovereignty the power behind the legal sovereign, or the sum of the influences that operate upon it. Internal Sovereignty the power of a State to control its internal affairs. External Sovereignty the power of the State to direct its relations with other States. Jus Postliminium once the legitimate authority returns, the political laws are revived. If the acts of authority cannot be exercised by the legitimate authority, the sovereignty is not suspended. Generally, only the political laws are suspended. The laws of treason and those that apply to combatants remain in force. Civil laws likewise remain in force except if amended or superseded by affirmative act of belligerent occupant. Principle of State Continuity State is not lost when one of its elements is changed; it is lost only when at least one of its elements is destroyed. State does not lose its identity but remains one and the same international person despite changes in the form of government, territory, people, or sovereignty. Change of Sovereignty Political Laws are deemed abrogated because they govern relations between the State and the people. Non-political laws generally continue in operation because they regulate only private relations, unless they are changed by the new sovereign, or contrary to institutions of the new sovereign. Simple Sate one which is placed under a single and centralized government exercising power over both its internal and external affairs. Composite Sate one which consists two or more states, each with its own separate government but bound under central authority exercising, to a greater or less degree, control over their external relations. Real Union two or more states are merged forming a single international person through which they act as one entity. Federal Union/Federation a combination of two or more sovereign states resulting in the creation of a new state with full international personality. Confederation an organization of states which retain their internal and external sovereignty, while delegating to the collective body power to represent them as a whole for certain limited and specified purposes. Personal Union two or more independent states are brought together under the rule of the same monarch, who nevertheless does not constitute one international person for the purpose of representing any or all of them. It is not a composite state because no new international person is created to represent it in international relations.

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United Nations An international person for certain purposes: 1. It enjoys certain privileges and immunities, such as non-suability, inviolability of its premises and archives, and exemption from taxation. 2. It can assert a diplomatic claim on behalf of its officials, and treaties may also be concluded by it through the General Assembly, the Security Council, and the Economic and Social Council. 3. Trust territories are supposed to be under its residual sovereignty. The Vatican City An international entity created for the purpose of assuring to the Holy See absolute and visible independence and of guaranteeing to it absolute and indisputable sovereignty in the field of international relations. Colonies part and parcel of the parent state, through which all its external relations are transacted with other states, which have been allowed on occasion to participate in their own right in international undertakings and granted practically the status of a sovereign state. Mandates and Trust Territories Territories taken from the defeated powers, whose administration is placed under some form of international supervision. These territories enjoy certain rights directly available to them under the United Nations Charter that vest them with a degree of international personality. They are not however sovereign. Belligerent Communities When a portion of the population rises up in arms against the legitimate government of the state, and such conflict widens and aggravates, it may become necessary to accord the rebels recognition of belligerency. International Administrative Bodies created by agreement among states. Requisites to vested with international personality: (1) non-political; (2) autonomous not subject to control of any state Individuals the basic unit of society, national and international, and must therefore ultimately governed by the laws of this society. RIGHTS OF THE STATE 1. Right to Sovereignty and Independence 2. Right to Property and Jurisdiction 3. Right to Existence and Self-Defense 4. Right to Equality 5. Right to Diplomatic Intercourse Right to Existence and Self-Defense The most elementary and important right of a State. All other rights flow from this right. Two occasions when the use of force is allowed under the UN Charter: 1. When it is authorized in pursuance of the enforcement action that may be decreed by the Security Council under Art. 42. 2. When it is employed in the exercise of the inherent right of selfdefense under conditions prescribed in Art. 51. Right to Sovereignty and Independence the dictatorial interference by a State in the internal affairs of another State, or in the relations between other States, which is either forcible or backed by the threat of force. Intervention vs. Intercession Intercession is allowed such as diplomatic protest and tender of advice. Generally, intervention is prohibited (Drago Doctrine). It prohibits intervention for the collection of contractual debts, public or private. Intervention is only allowed in: 1. Intervention as an act of individual and collective self-defense 2. Intervention by treaty stipulation or by invitation Presupposes that the inviting State is not a mere puppet of the intervening State. 3. By UN authorization and resolution 4. On humanitarian grounds Pacific Blockade one imposed during times of peace. Where the countries are at war, then a blockade is a legitimate measure. In fact, a blockade must not be violated by a neutral State. If breached, the neutral vessel is seized. When Use of Force is allowed under the UN Charter By UNSC Resolution: Art. 41 The SC may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the UN to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations. Art. 42 Should the SC consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the UN. Self-defense Exercise of this right is subject to the State concerned having been the victim of an armed attack. Armed Attacks an armed attack must be understood as including not merely action by regular armed forces across an international border, but also 'the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to' an actual armed attack conducted by regular forces, 'or its substantial involvement therein'. RECOGNITION OF STATE Constitutive School recognition is the act which gives to a political entity international status as a State; it is only through recognition that a State becomes an International Person and a subject of international law. Declaratory School recognition is a political act, i.e., it is entirely a matter of policy and discretion to give or refuse recognition, and that no entity possesses the power, as a matter of legal right, to demand recognition. Declaratory Theory of Recognition Principle a theory according to which recognition of a state is merely an acknowledgment of the fact of its existence. The recognized state already exists and can exist even without such recognition. Constitutive theory vs. Declaratory theory 1. The constitutive theory is the minority view which holds that recognition is the last element that converts or constitutes the entity being recognized into an international person; while the declaratory theory is the majority view that recognition affirms the pre-existing fact that the entity being recognized already possesses the status of an international person. The constitutive theory is regarded as mandatory and legal and may be demanded as a matter of right by any entity that can establish its possession of the four essential elements of a state; while the constitutive theory is highly political and discretionary.

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Recognition of State vs. Recognition of Government Recognition of state carries with it the recognition of government since the former implies that a state recognized has all the essential requisites of a state at the time recognition is extended. Once recognition of state is accorded, it is generally irrevocable. Recognition of government, on the other hand, may be withheld from a succeeding government brought about by violent or unconstitutional means. Criteria for Recognition Objective Test government should be EFFECTIVE and STABLE; in possession of State machinery; there is little resistance to its authority Subjective Test WILLINGNESS and ABILITY; the government is willing and able to discharge its international obligations

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Tobar or Wilson Doctrine recognition is withheld from governments established by revolutionary means until freely elected representatives of the people have organized a constitutional government. Estrada Doctrine disclaims right of foreign states to rule upon legitimacy of a government of a foreign State. It is a policy of never issuing any declaration giving recognition to governments instead, it simply accepts whatever government is in effective control without raising the issue of recognition. Wilson doctrine vs. Estrada doctrine In the Wilson or Tobar doctrine, a government established by means revolution, civil war, coup d etat or other forms of internal violence will not be recognized until the freely elected representatives of the people have organized a constitutional government, while in the Estrada doctrine any diplomatic representatives in a country where an upheaval has taken place will deal or not deal with whatever government is in control therein at the time and either action shall not be taken as a judgment on the legitimacy of the said government. Recognition De Jure Given to a government that satisfies both the objective and subjective criteria Recognition De Facto Given to governments that have not fully satisfied objective and subjective criteria Recognition of Government 1. acquires the capacity to enter into diplomatic relations 2. acquires the right of suing 3. immune from the jurisdiction of the courts of law 4. entitled to demand and receive possession of property 5. preclude the courts of the recognizing State from assigning judgment on the legality of its acts Act of State Doctrine it is the Executive Department that is primarily endowed with the power to recognize foreign governments and States. Recognition extended by the President to a foreign government is not subject to judicial review. The courts are bound by the acts of political department of the government BELLIGERENCY Stage of belligerency the stage of insurgency becomes widespread. Insurgency vs. Belligerency Insurgency is a mere initial stage of war. It involves a rebel movement, and is usually not recognized. Its sanctions are governed by municipal law. Belligerency, on the other hand, is a more serious and widespread and presupposes the existence of war between two or more states (1st sense) or actual civil war within a single state (2nd sense). It is governed by the rules on international law as the belligerents may be given international personality. Requisites of Belligerency 1. An organized civil government that has control and direction over the armed struggle launched by the rebels; 2. Occupation of a substantial portion of the states territory more or less permanent occupation; legitimate government must use superior military force to dislodge the rebels; 3. Seriousness of the struggle, which must be so widespread thereby leaving no doubt as to the outcome; 4. Willingness on the part of the rebels. Recognition of belligerency the formal acknowledgment by a third party of the existence of a state of war between the central government and a portion of that state. Belligerency exists when a sizable portion of the territory of a state is under the effective control of an insurgent community which is seeking to establish a separate government and the insurgents are in de facto control of a portion of the territory and population, have a political organization, and are able to maintain such control and conduct themselves according to the laws of war. Territory fixed and permanent portion on the earths surface inhabited by the people of the state and over which it has supreme authority. Discovery and Occupation mode of acquisition of territory belonging to no one terra nullius. Requisites: 1. Discovery Mere discovery gives only an inchoate right of discovery. It bars other states, within a reasonable time, from entering the territory, so that the discovering state may establish a settlement therein and commence administration and occupation. Once the discovering state begins exercising sovereign rights over the territory, the inchoate right ripens and is perfected into a full title. If the discovering state fails to exercise sovereign rights, the inchoate title is extinguished, and the territory becomes terra nullius again 2. Effective Occupation Authority must be exercised as and when occasion demands. Thus, when the territory is thinly populated and uninhabited, very little actual exercise of sovereign rights is needed in the absence of competition. Doctrine of Effective Occupation discovery alone gives only an inchoate title; it must be followed within a reasonable time by effective occupation. An occupation made is valid only with respect to and extends only to the area effectively occupied. Prescription acquisition of territory by an adverse and uninterrupted possession continued for a long term of years. Requisites: 1. Continuous and undisturbed possession If there are claims or protests to the States possession, NOT undisturbed. 2. Lapse of a period of time No rule as to length of time required Cession a derivative mode of acquisition by which territory belonging to one State is transferred to the sovereignty of another State in accordance with an agreement between them. Total Cession comprises the entirety of one States domain; the ceding State is absorbed by the acquiring State and ceases to exist. Partial Cession comprises only a fractional portion of the ceding States territory. Conquest derivative mode of acquisition whereby the territory of one State is conquered in the course of war and thereafter annexed to and placed under the sovereignty of the conquering State. Conquest alone merely gives an inchoate right; acquisition must be completed by formal act of annexation. Conquest is no longer lawful as UN Charter prohibits resort to threat or use of force against a States territorial integrity or political independence. Accretion the increase in the land area of a State caused by the operation of the forces of nature, or artificially, through human labor. COMPONENTS OF TERRITORY (1) Territorial Domain (2) Maritime and Fluvial Domain a. Territorial Sea b. Contiguous Zone c. Exclusive Economic Zone (EEZ) d. Continental Shelf e. High Seas (3) Aerial Domain a. Air Space b. Outer Space Territorial Domain The landmass where the people live.

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Internal Waters These are bodies of water within the land boundaries of a State, or are closely linked to its land domain, such that they are considered as legally equivalent to national land. Maritime and Fluvial Domain Zones of the Sea Waters adjacent to the coasts of a State to a specified limit Territorial Sea comprises in the marginal belt adjacent to the land area or the coast and includes generally the bays, gulfs and straights which do not have the character of historic waters (waters that are legally part of the internal waters of the State). Right of Innocent Passage The right of continuous and expeditious navigation of a foreign shop through a States territorial sea for the purpose of traversing that sea without entering the internal waters or calling at a roadstead or port facility outside the internal waters, or proceeding to or from internal waters or a call at such roadstead or port facility. Extent of the territorial sea maximum limit of 12 nautical miles from the baseline. Normal Baseline Method Territorial sea is drawn from the low-water mark. Low-water mark The line on the shore reached by the sea at low tide. Otherwise known as the baseline. Straight Baseline Method A straight line is drawn across the sea, from headland to headland, or from island to island. That straight line then becomes the baseline from which the territorial sea is measured. Contiguous Zone zone adjacent to the territorial sea, over which the coastal State may exercise such control as is necessary to prevent infringement of its customs, fiscal, immigration or sanitary laws within its territory or territorial sea. It extends to a maximum of 24 nautical miles from the baseline from which the territorial sea is measured. Exclusive Economic Zone a maximum zone of 200 nautical miles from the baseline from which the territorial sea is measured, over which, the coastal State exercises sovereign rights over all the economic resources of the sea, seabed and subsoil. Contiguous zone vs. Exclusive economic zone 1. The contiguous zone is the area which is known as the protective th jurisdiction and starts from 12 nautical mile from low water mark th (baseline), while the EEZ is the area which ends at the 200 nautical mile from the baseline. In the EEZ, no state really has exclusive ownership of it but the state which has a valid claim on it according to the UN Convention on the Law of the Seas agreement has the right to explore and exploit its natural resources; while in the contiguous zone, the coastal state may exercise the control necessary to (a) prevent infringement of its customs, fiscal immigration or sanitary regulations within its territory; and (b) punish infringement of the above regulations within its territory or territorial sea. Mid-Ocean Archipelago groups of islands situated in the ocean at such distance from the coasts of firm land (mainland). High Seas belongs to everyone and to no one both res communes and res nullius. Doctrine of Hot Pursuit the pursuit of a foreign vessel undertaken by the coastal State which has good reason to believe that the ship has violated the laws and regulations of that State. Deep Sea Bed the sea-bed beyond the continental shelf. Freedom of Navigation the right to sail ships on the seas which is open to all States and land-locked countries. Flag State the State whose nationality (ships registration) the ship possesses, for it is nation. Flags of Convenience registration of any ship in return for a payment fee. Aerial Domain the airspace above the territorial and maritime domains of the State, to the limits of the atmosphere. Air Space the air space above the States terrestrial and maritime territory. Outer Space the space beyond the airspace surrounding the earth or beyond the national airspace, which is completely beyond the sovereignty of any State. 759

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Continental Shelf comprises the seabed and subsoil of the submarine areas that extend beyond the territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin; or to a distance of more than 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental shelf does not extend up to that distance. Archipelagic Doctrine Coastal Archipelago situated close to a mainland, and may be considered part of such mainland.