You are on page 1of 10

PUBLIC INTERNATIONAL LAW

Atty. Rodolfo Elman


Art. II Sec. 2, Constitution. Assurance of our
willingness

(BQ) Basing of foreign troops under a defense of


treaty for military exercises conflicts with
Constitution of the State. Which prevails?

Kuroda vs Jalandoni

Doctrine of Incorporation
Doctrine of Transformation rules of international
law are not per se binding
Tanada vs Angara 272 SCRA 18: Philippine
membership in the WTO is not an impairment of
our sovereignty. Applicable principles are the
doctrine of incorporation and pacta sunt
servanda. The sovereignty of the Philippines is
subject to restriction by its membership in the
family f nations and limitations imposed by treaty
limitations. The constitution did not envision our
hermitlike isolation from the rest of the world.
*LOI 229 requiring motor vehicle owners to have
reflectorized triangular early warning devices
pursuant to 1968 Vienna Convention on Road
Signs and Signals.
CONFLICT BET PIL AND MUNICIPAL LAW
McArthurs proclamation declaring null and
void all laws and processes of any
government
other
than
that
of
Commonwealth does not invalidate all
judicial proceedings during the Japanese
belligerent
occupation.
Only
judgments/judicial proceedings of political
nature are invalidated (Co Kim Chan vs
Valdez Tan Keh)
From International Viewpoint, uphold PIL
Act. 7, Sec. 21, 1987 Constitution. An
instance where our constitution upholds
the supremacy of our law [ where 2/3 of
the votes cast in the congress for
concurrence]
Independent foreign policy should be free
from foreign dictates
CONFLICT
BETWEEN
TREAT
AND
CONSTITUTION
Demandable obligation under pacta sunt
servanda
PIL: every state has the duty to carry out
in good faith its obligations arising form
treaties and other sources of international
law, and it may not invoke its constitution
or laws as an excuse not to perform this
duty (Declaration of Rights and Duties of
States adopted by the ILC)

Const. Art. VIII, Sec. 4(2)1 and Art. VII, Sec.


212

Consistent with national interest, PH adopts a


policy of freedom from nuclear weapons in its
territory. (Sec. 8, Art. VIII)
Policy does not prohibit peaceful uses of
nuclear energy
Any agreement on bases must embody basic
policy of freedom from nuclear weapons. Ph
can demand ocular inspection and removal of
nuclear arms.
The Retail Trade Nationalization Law was
challenged on ground that it violated Treaty of
Amity, the UN Charter and the Universal
Declaration of Human Rights

Sec. 5(2)(A) Art. VIII of the Constitution


authorizes the nullification of a treaty
when it conflicts with the Constitution
State policy in Sec. Art. II is pursuit of
independent foreign policy; paramount
consideration
shall
be
national
sovereignty, territorial integrity, national
interest,
and
the
right
to
selfdetermination.

Law is within the scope of police power of


State. It is not a violation of PIL (Ichong vs
Hernandez)

NB Foreigners are now allowed subject to


limitations under 8762

Gonzales vs Hechanova
Importation of rice by executive agreement:
Pres. May not defeat the law by indirectly
repealing the same thru EA

Art. VIII, Section 4(2): SC to decide all cases


involving the constitutionality of treaty,
international or executive agreement, which
shall be heard en banc and decided with
concurrence of majority of the members who
took part in deliberations and voted thereon.

Law practice by Spanish national under Treast


of Academic Relations (re Arturo Efren Garcia).

1 Authority of the SC to decide on the constitutionality of a treaty,


international, or executive agreement. Issue may be heard by SC En
Banc

2 Concurrence of the senate to a treaty 2/3 of the members of the


Senate

Power to admit to practice of law is vested in


SC under Sec. 5, Art. VIII which authority may
not be abrogated by a treaty.

Is international law a true law?


o Austinian concept vs more acceptable
view
o Austinian view holds that it is not for
lack of political superior;

Basis of international law: What gives it


binding force?
1. Law of nature: a natural principle of
right and wrong discovered thru use of
reason and conscience. PIL is above
states, a law of subordination
2. Positivist
Theory:
derived
from
agreement of states to be bound; it is
a law of coordination
3. Grotian Theory: prevailing theory which
is a combination of the law of nature
and the positivist theory.

Primary and Secondary sources of PIL under


Art. 38 ICJ Statute
Not every treaty is a direct source
1. Bilateral Treaty
2. Customs
Example of customs: practice of granting
immunity of foreign heads or diplomats
(Principle of extraterritoriality3); exercise of
jurisdiction beyond their territories (ex.
China over South China Sea); rules of
maritime warfare4
Customs distinguished from usage 5
Customs
Persistent
usage
because of the belief
that such is proper
for the international
community
Examples
Exercise
of
the
jurisdiction by the
states beyond their
territories like how
China
asserts
its
authority over the
South China Sea

Factors
that
induce
observance;
sanctions of PIL
1. Inherent
reasonableness
of
PIL;
conviction that it will redound to
welfare of community
2. Normal Habits of Obedience
3. Respect for world opinion
4. Fear of Retaliation by more powerful
states
5. Machinery of UN
o During wwii, the league of nations
failed as an institution because it
did not have provision on what
what thats why the UN was formed
How is international law enforced?
1. Thru
international
organizations/regional groups
2. Settle differences between themselves
either through amicable methods or
hostile measures like retorsions or
reprisals
3. Prosecution of war criminals and
collection of reparations
4. PIL treated as part of municipal law

OBLIGATIONS ERGA OMNES


- Used to describe obligations owed by
states towards the community of states as
a whole
- The obligations of a state towards the
international community, by their very
nature, are the concern of all states. All
states have a legal interest in their
protection, such as obligations derived
from outlawing acts of aggression, and of

genocide, protection from slavery and


racial discrimination
Examples of erga omnes norms include
piracy, slavery, genocide, and torture.

Usage
Does not have belief
that it is right and
proper

3. General Principles of Law


Examples of general principles of law
derived mostly from laws of nature):
prescription,
estoppel,
pacta
sunt
servanda and res judicata
Doctrine of Stare Decisis is not applicable in
international law

Concept of Aeguo et Bono


Application of equity as a source of
international law
The ICJ, although not expressly authorized by
its Statue to apply equity as distinguished
from law, has some freedom to consider
principles of equity as a part of international
law which it must apply
Equity, when accepted, is an instrument
whereby
it
supplements
or
modifies

3 Basis is conventional law


4
5 Acquired by persistent usage; ie granting immunity of foreign heads
of states on the basis of the principle of exterritoriality (exemption of
persons from the jurisdiction of the local states]

conventional or customary law in order to


achieve justice
Under the ICJ Statute? Which of the
following is NOT considered a source of
International
Law?
[International
Humanitarian Law]

Concept of Opinio Juris


Action is carried out or a certain practice is
followed because of the belief that it is a legal
obligation
These actions and practices are done by the
state could become a custom. Once it
becomes as such, ti comes a principal source
of PIL
Subjective element which is used to judge w/n
the practice or action of the State is by reason
of the belief that it is legally obliged to
perform such act.
Mijares vs Ranada, 455 SCRA 397
In opinion juris, not only must the acts amount to
a settled practice, but they must also be such, or
be carried out in such a way, as to be evidence of
a bleif that the practice is obligatory.
NOT SOURCES OF PIL
Resolutions
or
declarations
are
merely
declaratory unless supported by all states, they
are an expression of opinion juris communis.
Soft Law are international agreements not
concluded as treaties and therefore not covered
by the Vienna Convention of the Law of Treaties.
Hard Law is a norm or rule of conduct accepted
and recognized by the international community
as a source of law binding on them. It produces
obligations which when breached gives rise to
international responsibility and consequently to
reparation. Soft law is an expression of nonbinding norm or principle without intent to create
enforceable obligations.
Yogyakarta Principles
Ladlad Party vs Comelec
We stress, however, that although this Court
stands willing to assume the responsibility of
giving effect to the Philippinesinternational law
obligations,
the
blanket
invocation
of
international law is not the panacea for all social
ills. We refer now to the petitioners invocation of
the Yogyakarta Principles (the Application of
International Human Rights Law In Relation to
Sexual Orientation and Gender Identity), [51] which
petitioner declares to reflect binding principles of
international law.

At this time, we are not prepared to declare that


these Yogyakarta Principles contain norms that
are obligatory on the Philippines. There are
declarations and obligations outlined in said
Principles which are not reflective of the
current state of international law, and do not
find basis in any of the sources of international
law enumerated under Article 38(1) of the
Statute of the International Court of Justice.
[52]
Petitioner has not undertaken any objective
and rigorous analysis of these alleged principles
of international law to ascertain their true status.

International Community
Distinction between subject and object
of international law
Subject
Object:
: entity that can
person or thing in
directly assert rights
which rights are
and assume
asserted and
obligations in
obligations assumed
international law; a
through the
direct participant in
intercession or
international relations.
intervention of the
subject or his own
State.

State- group of people living in a definite


territory under an independent government
organized for..

Elements of a State
1. People/population
2. Territory
3. Government which has control to
administrative machineries
4. Sovereignty the competence of a state
to pursue external relations with other
states or entities

Q: would you consider nomadic tribes


having elements of a state, a state? NO. due
to lack of territory.
Nomadic Tribes (moving states) and group of
anarchists and pirates
Neutralized States
- A states independence and integrity are
guaranteed by a treaty with other states
on condition of its non-involvement in any
war
- EX: Switzerland was neutralized as early
as 1802. By this reason, it was not a
member of the United Nations.
- # of member country members in UN: 193

Distinguished from neutrality


Neutrality
Neutralization
Exists only during war Exists during peace
time
and or war
A status created under The status is created
IL by means of a stand by means of treaty
on the part of the
state not to side with
any parties of the war
Brought about by a Cannot be effected by
unilateral declaration unilateral acts, but
by the neutral State
must
be
brought
about by the acts of
other
States
conferring the status
of
the
neutralized
state (i.e. Switzerland)
Concept of dependent state: an anomaly
2 categories
Protectorate
Suzerainty
Voluntary
act
of Concession
subordination by a autonomy made
state to the protecting suzerain
state
state
vassal state

o
o

Manifestations of the individual as a


subject
1. UN Charter reaffirms faith in fundamental
human rights, dignity xx
2. Universal Declaration of Human Rights
proclaiming basic individual rights
3. Some treaties directly confer rights upon
individuals and authorize them to sue
states before tribunals ..to redress of
private interests violated
4. States obliged to maintain international
standard of justice in treatment of aliens
5. Genocide convention condemns mass
extermination
6. Nuremberg and Tokyo War crime trials9
7. Pirates as hos humanis generis
8. Certain laws of war and neutrality directly
affect individuals
9. Hague Convention of 1930 provides rules
to prevent or minimize statelessness
10. Convention relating to status of stateless
persons confers rights to them
11. Doctrine of Incorporation

A US1.1.m compensation suit filed in Kyoto


District court by 6 Chinese nationals who were
forced to become slave laborers at ta nickel
mine owned by a state company.

During www2, comfort women were forced


into serving Jap military government. Japan
claims the comfort stations were run as onise
1. Art. III of Geneva Conv. Prohibits outrages
upon personal dignity, in particular
humiliating and degrading treatment
2. Art. XVII of GC Women shall be protected
vs against any attack on their honor, in

Under the Convetion relating to the status of


stateless persons of 1954, he is entitled to

Vatican state: exists due to lateral


agreement with Italy. 6
Colonies and Dependencies: have no legal
standing as they are part of parent state
unless allowed to participate in their own right
in international undertakings. 7
o Ex: universal postal convention in 1906
o International Sugar Agreement 1937
o United Nations in 1992

Q: what is the system of mandates and trust


territories? Does UN exercise sovereignty
over these territories?

6 It is not a full-fledged member of the UN, but an observer status


state in the UN, like the case of PLO.

7 But in some instances, they may participate in their own right to


participate in some IL undertakings, and that must be considered.

8 World Health, World Bank, etc.

Traditional concept regards the individual


merely as an object of international law
because it is his states whose right has been
violated, not that of the individual or the
national
Illustrative case of Korchnoi
o Damnum
Absque
Injuria.
Being
stateless, he cannot seek vindication in
the international tribunal
Reasons for the growing view that individual is
a subject of international law
He is basic unit of society* many precepts
directly applicable to him

of
by
to

Sovereignty over the mandate or trust territory is


held in abeyance.
3 kinds of trust territories
Ex. Case: Palau (After 47 yrs, in 1994)
Belligerent communities: an inchoative
state for purpose of conflict.
International Administrative Bodies (2
conditions to be vested w/ international
personality)8

Must be nonpolitical and


not subject to the dictate of any other
state

9 Penalties are imposed against individuals

right to religion and religious instruction,


access to courts, elementary education, public
relief and assistance and treatment to no less
favorable than thataccorded to aliens
Under the Hague convention of 1930, to avoid
condition of statelessness, the wife and
children retain their existing nationality if they
are not also naturalized. The wife acquires her
husbands new nationality only w/ her
consent. Adopted child does not lose his
nationality by adoption.
Comfort women and their descendants cannot
assert individual claim vs Japan. The state has
sovereign authprity to settle claims of its
national vs foreing countries even without the
consent or the nationals w/o consolations
with them.
GENOCIDE: In the present Convention,
genocide means any of the following acts
committed with intent to destroy, in whole or
in part, a national, ethnical, racial or religious
group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to
members of the group;
(c) Deliberately inflicting on the group
conditions of life calculated to bring
about its physical destruction in whole or
in part;
(d) Imposing measures intended to prevent
births within the group;
(e) Forcibly transferring children of the group
to another group.
BUKO HARAM

UNITED NATIONS ORGANIZATION


Preamble
UN charter: both a treaty and a constitution
4 purposes of UN
Art. 103
12082016
Veto Power
Uniting for Peace Resolution
- Emergency session of GA may be called
within 24 hours at request of SC by vote of
any 9 members or by majority of UN
members, to make recommendation to the
members
for
collective
measures,
including use of force if necessary, to
restore peace and security.
Jurisdiction of the International Court of
Justice
- Based on consent of the parties as
manifested by the optional jurisdiction
clause 10in Art. 36 of Statute
10

If one part does not want to be subjected


to the jurisdiction, nothing will happen.

ICJ may take cognizance of an issue brought


before it by consenting states. There are 2
conditions for the ICJ to take cognizance
1. Only states shall be made parties before
the ICJ
2. On the basis of the consent given by

the states in conflict


-

15 members in the ICJ who are elected by


absolute majority vote in the GA and the
security council for a term of 9 years and
may be re-elected.
ICJ decide contentious cases and render
advisory opinions. Advisory opinions may
be given by the ICJ upon request of GA or
SC, as well as other organs of the UN when
authorized by the GA on legal questions
arising within the scope of their activities
All questions are decided by majority of all
judges present, the quorum being nine
when the full Court is sitting.

Art. 36, ICJ Statute


Jurisdiction
1. Interpretation of a treaty
2. Any question of Intl law
3. The existence of any fact w/c if established
constitutes a breach of intl obligation
4. Nature or extent of the reparation made for
the breach of an intl obligation
2 limitation on the jurisdiction
Can ICJ give advisory opinion?
Yes, on any legal question at request of GA or
Security Council, or other organs of the UN when
authorized by the GA
Where is the seat of the ICJ? Netherlands
How mayn are its members? 15
What is the term of office? 9 yrs
What are the official laungage of ICJ? French and
English
Secretariat is chief admin organ
Secretary-General is chosen by GA upon SC
recommendation for 5 yr term and may be reelected.
Incumbent:
(Ban
Ki-moon/Antonio
Guterres)
Functions of the Secretary General
To submit any issue to the City Council
whenever there is threat to intl peace and
security
Submission of budget of the org.

Entitled to hold diplomatic privileges and


immunities which only the SG may waive
while those of other key officials of the UN
may be waived by the SG

Concept of State
- Methods of acquiring the status of a State:
- Revolution
- Unification
- Secession
- Assertion of independence
- Agreement and attainment of civilization
-

Principle of State Continuity state


continues as a juridical person despite
changes in its circumstances, so long as they
do not result in the loss of any of these
essential elements.

People, territory, sovereignty, government

Sapphire case( damage suit by Emperor


Napoleon before California court re collision
bet French Vessel Euryale and U.S. Ship
Sapphire); during pendency, Napoleon was
overthrown. Issue: will the case be
dismissed? No. because sovereignty is
continuous and perpetual. It does not change
but merely the person in whom it resides.

How a state may be extinguished


- Absence of any of the elements
- State itself absorbed by another state
o Ex. Invasion
Principle of State Succession
- One state assumes rights and some
obligations of another because of changes
in condition of the latter
- May be universal or partial.
o Ex. A indepent state may become a
protectorate, then it continues to
be a juridical entity, but there is a
partial loss in the sense that the
protectorate no longer has full
control in foreign relations to other
states.
Consequences of State Succession
- Allegiance is transferred;
- political
laws
of
former
sovereign
automatically abrogated;
- non-political laws deemed continued
unless;
- treaties of political nature are discontinued
except those dealing with local rights and
duties;
- all rights inherited;
- obligations dependent on discretion of
successor state

Ex. Treaty of Paris


Spain transferring authority to US

Succession of Governments
- One government replaces another either
peacefully or by violent means
- Rights inherited by successor government
- On obligations, dependent on manner of
establishing new government whether
peaceful or violent
Do citizens of the defunct state have the
right to resort to Intl law against the
actions taken by the annexing state?
No. it is a purely internal matter. They are
merely objects. One consequence is that
the allegiance of the citizens are
transferred to the succeeding state.
Can the successor state try crimes
committed even before the change of
sovereignty?
Ex. Israel merely acquired the status of a
State after WWII.
Power to punish continues w/o lapse from
authority to authority; laws continue
despite changes of govt or sovereignty,
the only exception being in case of laws
incompatible w/ the constitution and laws
of new sovereign
Case of Adolf Eichmann Mossad
Escapee and went to Argentina in a new
identity. For 10 years, he was nameless.
But the Israeli agents found him and
abducted him. He was tried for warcrimes,
and there were a hundred jews who
testified against him, and he was hanged.
1963 2 years after capture.

Recognition
2 theories
1. Declaratory theory
If an entity already possess the essential
elements of a state, it does not follow that it
should already be considered a state. Because
recognition is political and thus maybe
extended not as a matter of a legal right even
if entity is able to show it has already in its
favor essential elements, recognition is
dependent upon other states, if they would
recognize this entity as a state
2. Constitutive theory
Declares that if an entity is able to show these
elements, it becomes a demandable right
Recognition is an act of state, cannot be
questioned before the court for not being a legal
issue. The authority to extend recognition is

reposed upon the President. It is a political matter


and not subject to judicial scrutiny.
Ex. Palestine
Source of Presidents Authority
The President has the authority under the
constitution to negotiate as well as the power of
recognition under international law (power to
send diplomatic representatives);

3. Right to possession of properties of its


predecessor in territory of recognizing
state
4. All acts of recognized state/govt are
validated
retroactively
preventing
recognizing state

Russian Socialist Fed Soviet Rep vs


Cibrario
Power to sue in US court is not a matter or
right but a creature of comity. Until
recognized, there is no comity. REcog.
(&existence of comity) is purely for executive
or legislative branch

Banco Nacional de Cuba vs Sabbah


Animosity shourt if war, mere breach of
diplomatice relations does not have the effect
of withdrawing the right to sue

Non-suability of the foreign state is not an


effect of recognition. the applicable doctrine is
state immunity

Distinctions
Belligerency

Conditions for recognition of belligerency:


organized civil govt directing rebels; occupy
substantial portion of territory; must be
serious making outcome uncertain; willing
and able to observe the laws of war

Stimson Principle- a govt that assumes power


by external aggression may not be recognized as
such

Consequences of recognition of belligerency

Estrada Doctrine- a government will deal or not


deal with any country in which a political
upheaval has taken place and either action shall
not be taken as a judgment on the legitimacy of
the latters govt

Recognition of PLO
Objects of Recognition
- Maybe extended to a government like if a
new ruler assumes office
- Recognition of state itself
- Recognition of a status of a belligerent
community when there is a conflict
3 kinds of de facto governments
1. Whenever a population overthrows the
legitimate government (successful revolution,
rebels establish their own government)
2. Without overthrowing, a portion of inhabitants
secede
---(ex.
Moro
rebels
assert
independences so they secede from the
government
3. Assumes power in the course of war
Wilson or Tobar principle- prevents recognition
of a govt established by revolution, civil war, coup
detat or other forms of internal violence.

Practical criteria for recognition of government


(objective and subjective tests to constitute
government de jure)
Distinction bet 2 kinds of recognition of govern
(de jure and de facto)

Effects of recognition of states and


governments
1. Full
diplomatic
relations
established
except where govt is de facto
2. Acquires the right to sue in courts of
recognizing state

between

Insurgency

and

Right of Existence and Self-Defense


Most important of the fundamental rights
Does not depend on previous recognition of
state for its exercise
Recognized in Art. 51: Nothing in the present
Charter shall impair the inherent right of
individual or collective self-defense if an
armed attack occurs vs a UN member
Conditions for the proper exercise of the right
under Art. 51
a) There must be an armed attack;
b) Self-defensive action taken by the
state must be reported to SC

2 views on presence of armed attack or does


possibility of attack justify another state to attack
first?
a) Idealistic- right may be resorted to only
upon clear showing of grave and actual
danger to security of state, and measures
must be limited by necessity of selfdefense, instant, and overwhelming and
leaving no choice

~clear showing of grave


danger to security of state

and

actual

1) Pragmatic- very state of armed


preparedness by a power is per se a
latent threat to security

2 instances when armed force is allowed


1) Concept of self-defense
2) SC decrees an enforcement or prevention

Terrorist group Ali Baba, based in and under


protection of State X, bombed State Y and
threatened to repeat terrorist acts. It had
earlier nbombed WTC, killing 2k people.
Despite demands, X refused to surrender
Ladin, head of Ali Baba.

~State Y may exercise right of self-defense until


SC has taken measures
~State Y may bring matter to SC which may
authorize sanctions vs State X. Also, State Y may
use force vs State X and Ali Baba by authority of
SC.
Note:
Under
fundamental
principles
of
International Humanitarian Law, state Y cant be
granted sweeping discretionary powers. SC
decides whether force may be used vs specific
state and what conditions.
US allies invaded Iraq to liberate Iraqis and
destroy suspected WMD. No consensus reached
by SC to support or not the war of liberation. Is
the action justifiable in international law?
~Self-defense (Art. 51) cannot be invoked. There
was no necessity for anticipatory self-defense
which may be justified under customary law
~it was not sanctioned by SC Res. 1441 which
gave Iraqi final opportunity to disarm or face
consequences, did not authorize the use of armed
force
~Art. 2(4) prohibits use of force and international
integrity.
1962 Cuban Missile Crisis (US quarantine
interdicting delivery of offensive weapons to
Cuba): an act of self-defense
Regional Arrangements under Art. 52: Nothing in
the present Charter precludes the existence of
regional arrangements or agencies for dealing
with matters relating to maintenance of
international peace and security provided such
are consistent with UN Purposes and Principles ~
Ex. Art. 5, of NATO

Reason for regional arrangements: balance of


power
Aggression as defined by UN General Assembly
(Dec. 74)
The use of armed force by a state vs sovereignty,
territorial integrity
The first use of armed force by a state in
contravention of the charter constitutes prima
facie evidence of an act of aggression
Acts of aggression
Invasion or attack by armed forces of a state
of
territory
or
military
occupation;
bombardment, blockade of ports or coasts
xxx allowing its territory.
Any extension of the presence of the AF of a
state w/I the territory of another state beyond
the termination of agreement is an act of
aggression
A war of aggression is a crime vs
international peace. Aggression gives rise to
international responsibility
No territorial acquisition or special advantage
resulting from acts of aggression is or shall
be recognized as lawful
Right of Independence
Sovereignty- supreme power of state to
command and enforce obedience, enables
state to control its own foreign affairs visavis
other states
Right of independence recognized unin Art.
2(4) of Charter Members shall regrain from
use
Nature of independence: not absolute
freedom; freedom from control by other states
but not freedom from restrictions
Illustrations of restrictions upon the state: art.
2(4) Pacta Sunt Servanda; principle of more
liberum;
acquiescence
in
exercise
of
belligerent
rights;
maintenance
of
international standard of injustice; observance
of fundamental human rights
Is sovereignty real?
No man is an island
Trade with other states which is the core of
international relations in times of peace is
essential for the states survival
Maintenance of peace and security (Art. 2(3) is
the highest value for all states to subscribe. This
is far more compelling that vital state interests.
Thus, UN charter makes Art. 2(4) the most
important norm to attain goal.
Kosovos unilat. Declaration of independence
from Serbia in Feb 17, 2008 did not violate

international law since international law contains


no prohibition on declarations of independence
but ICJ was careful not to rule on the legal status
of Kosovo as a state to avoid enocouraging
nationalist movements and left the issue of a
territorys independence at discretion of states
that chose to recognize it (ICJ Advisory Opinion
issued on 07/21/10 upon request of the General
Assembly)
Right of Independence carries with it
correlative duty of non-intervention
Intervention- act of state in interfering with
domestic or foreign affairs of another state
through the use or threat of force; may be
economic or political but there must be pressure
Intervention is not allowed in PIL except as an act
of self-defense or when SC decrees enforcement
or preventive action (other instances: when so
requested by parties; such action is agreed upon
in a treaty
Drago Doctrine- the states agree not to have
recourse to armed force for recovery of contract
debts claimed from the govt of one state by
another state as being due to its nationals
Porter Resolution- intervention is permitted if
debtor state refused an offer to arbitrate
creditors claim

over another state, no matter how weak, or


question the validity of its acts so long as they
are made to take effect within its territory
Ex. China
Legal equality vs Factual Inequality
Absolute equality among states is impossible
(Ex. SC membership and voting)
The surviving Filipina comfort women cannot sue
Japan for damages in our courts. A foreign state
may not be sued before Philippine courts as a
consequence of the principles independence and
equality of states (RP of Indonesia vs Vinzon 405
SCRA 126, 2003)
Territory
Right to acquire properties is inferred from
war powers of Congress and treaty making
power of Pres. Comformably w/ sec. 2 Art. II
Modes of acquiring territory
Terra nullius vs Res Communes
Requisites
of
a
valid
discovery
and
occupation:
Possession and administration
~mere possession only gives inchoate tile of
discovery
Las Palmas Case: Principle of Continuous
Administration: Netherlands had exercised
sovereignty
since
1677.
While
Spain
discovered the island earlier, it never
occupied

Need for re-examination of law on intervention,


specially where intervention is based on
humanitarian grounds: Example: Somalia; Kosovo

Inchoate title could not prevail over


continuous and peaceful administration by
another state (Las Palmas Case)

Can the US use force to protect civilian


populations from genocide in Somalia, as an
exception to the prohibition vs use of force?

ICJ ruling in Feb 03 on ownership of Sipadan


and Ligitan Islands off Sabah in favor of
Malaysia. Malaysia had administrative control
over the islands long before Indonesia did
under
the
principle
of
continuous
administration.

In
1990,
the
NATO
intervention to protect

authorized

military

Right of Equality
Recognized in Art. 2(1) of Charter
Essence of Equality: not equality in no. of
rights or parity in physical power, political
influence or economic status, or prestige, but
all rights of a state, regardless of number,
must be observed and respected by
international community, right to enjoyment
of all its attributes as a member of family of
nations
Ex. Right to acquire territory or make use of
open sea or seize contraband
Rule of par in parem non habet imperium: even
the strongest state cannot assume jurisdiction

Clipperton Island case; possession


administration of uninhabited island.

sans

Basis of PH claim to Spratlys or the KAlayaan


IS. Is effective occupation of a territory not
subject to sovereignty of another state.
Following Japans renunciation of right to
Spratlys under 1951 SF Peace treaty, it
became terra nullius and was occupied by Ph
in the title of sovereignty in a visit of Tomas
Cloma In 1956. In 1978, Ph confirmed its title
PH claim to Sabah is based on 1878 contract
bet Sultan of Sulu and Austrian Consul Gen.
Baron OVerbeck;/British Alfred Dent

~Malaysia claims mode of cession while PH


asserts it was a contract of lease
~ no basis under intl law to assert Ph claim to
Sabah by including it in 87 consti. (a
municipal law)
-

Treaty Limits Theory

o Thalweg Doctrine
UN conference on the law of the Sea