Professional Documents
Culture Documents
Q: Give examples of “generally accepted principles of Section 21. No treaty or international agreement shall be
International Law”? valid and effective unless concurred in by at least two-thirds
of all the Members of the Senate.
A:
Right to self-determination of the peoples
1. Pacta sunt servanda Article 2, 1987 Constitution
2. Rebus sic stantibus- agreement is valid only if the
same conditions prevailing at time of contracting Section 7. The State shall pursue an independent foreign
continue to exist at the time of performance policy. In its relations with other states, the paramount
3. Par en parem non habet imperium (State Immunity consideration shall be national sovereignty, territorial
from Suit) integrity, national interest, and the right to self-
4. Sovereign Equality of States determination.
5. right of states to self-defense
6. right to self-determination of people Q: What is the right to self-determination of the peoples?
A: Legislative action is required to make the treaty It is a new concept in international law. It is understood as
enforceable in the municipal sphere. Generally accepted the right to internal self-determination of the people in
rules of international law are pursuit to their social, economic and political development
not per se binding upon the state but must first be within the framework of an existing state.
embodied in legislation enacted by the lawmaking
body and so transformed into municipal law. This Q: What are the 2 classification of rights?
doctrine runs counter Art. II, Sec. 2, of the 1987
Constitution. A:
1. individual
Q: What is pacta sunt servanda? Ex: Bill of rights
Indeed, the right to self-determination of the people is now Q: What are contract treaties?
elevated into a generally accepted principle. However, it is
only limited to internal right to self-determination. A: Bilateral arrangements concerning matters of particular or
special interest to the contracting parties. They are sources of
particular international law but may become primary sources
of public international law when different contract treaties
SOURCES OF PUBLIC INTERNATIONAL LAW are of the same nature, containing practically uniform
provisions, and are concluded by a substantial number of
STATUTE OF THE INTERNATIONAL COURT OF JUSTICE States.
Article 38
Q: What are law‐making treaties?
1. The Court, whose function is to decide in accordance
with international law such disputes as are submitted to A: Treaties which are concluded by a large number of States
it, shall apply: for purposes of:
Q: Distinguish between erga omnes from an obligation inter 1. Traditional concept- Only States are considered
se (which a State owes to another State)? subjects of international law.
A: Erga omnes, by their nature, are the concern of all States. 2. Contemporary concept- Individuals and
All States can be held to have a legal interest in their international organizations are also subjects because
protection. they have rights and duties under international
law.
Eg. Outlawing of acts of aggression, and of genocide, as also
from the principles and rules concerning the basic rights of
It is an entity with capacity of possessing international rights A: Are international organizations considered as subjects of
and duties and of bringing international claims (Magallona, international law?
p. 33, 2005).
A: Yes, if their legal personality is established by their
Q: When does an entity acquire international
personality? constituent instrument or charter. Their status is determined
by agreement and not by general or customary international
A: When it has right and duties under law. Their personality is derivative of the collective will of the
international law; can directly enforce its rights; states creating it.
and may be held directly accountable for its
obligations.
Q: What is the criterion for legal personality to be met?
Q: Distinguish between general or objective international
personality from particular or special international A:
personality? 1. A permanent association of states, with lawful
objects, equipped with organs
A: As to the first, rights and obligations are conferred by 2. A distinction, in terms of legal powers and purposes,
general international law and such personality is binding erga
between the organization and its member states
omnes. As to the second, personality binds only those which
give consent. It is brough about by their agreement and is 3. The existence of legal powers exercisable on the
recognized only among themselves as parties to that international plane and not solely within the national
agreement. system of one or more states
Q: If an entity is not a subject of international law, can it still HOLY SEE v. ROSARIO (1994)
assume certain characteristics of international personality?
Under both Public International Law and Transnational Law, a
A: Yes, but in a special or restricted context such as that person who feels aggrieved by the acts of a foreign sovereign
defined by agreement, recognition or acquiescence. can ask his own government to espouse his cause through
diplomatic channels.
Q: How is the State regarded as a subject of international
law? Private respondent can ask the Philippine government,
through the Foreign Office, to espouse its claims against the
A: The State is regarded as subject of international law or an Holy See. Its first task is to persuade the Philippine
international legal person in that it has, in other words, the government to take up with the Holy See the validity of its
capacity to be bearer of rights and duties under claims. Of course, the Foreign Office shall first make a
international law. determination of the impact of its espousal on the relations
between the Philippine government and the Holy See. Once
The status of the State as subject of law or an international the Philippine government decides to espouse the claim, the
person is conferred by customary or general international latter ceases to be a private cause.
law. It possesses erga omnes or objective personality not
merely by virtue of recognition on the part of particular
states.
Facultad de Derecho Civil 6
UNIVERSITY OF SANTO TOMAS
NOTES ON PUBLIC INTERNATIONAL LAW
Kenneth & King Hizon (3A) _____________________________________________
According to the Permanent Court of International Justice, organized for poltiical end where majority of the inhabitants
the forerunner of the International Court of Justice by taking render habitual obedience (sovereignty).
up the case of one of its subjects and by reporting to
diplomatic action or international judicial proceedings on his Q: Distinguish state from nation.
behalf, a State is in reality asserting its own rights — its right
to ensure, in the person of its subjects, respect for the rules A:
of international law.
STATE NATION
Objects of international law A legal concept Ethnic or racial concept
Q: What is an object of international law? NOTE: There may be one state with many nations.
E.g. Arab Nations
A: An Object is a person or thing in respect of which rights
are held and obligations assumed by the Subject. Thus, it is
not directly governed by the rules of international law. There may be several states with one nation. E.g. United
There is no direct enforcement and accountability. An States of America
intermediate agency—the Subject—is required for
the enjoyment of its rights and for the discharge of its Q: What are the capacities associated with legal personality
obligations.
of States?
Q: Distinguish subjects from objects of international law.
A: These include:
A:
1. capacity to make international agreements
2. to engage in privileges and immunities with respect
SUBJECTS OF INTENATIONAL OBJECTS OF INTENATIONAL
to national jurisdictions
LAW LAW
3. capacity to bring claims in cases of breach of
Entity that has rights and Person or thing in respect of international laws
responsibilities which rights are held and
obligations assumed by the Q: Can the comfort woman and their descendant assert
subject individual claims against Japan?
Has international personality Not directly governed by the
that it can directly assert rules of international law A: No. The sovereign authority of the state to settle claims
rights and can be held of its nationals against foreign countries has repeatedly
responsible under the law of been recognized. This may be made without the consent
nations of the nationals or even without consultation with them.
It can be a proper party in Its rights are received and its Since the continued amity between the State and other
transactions involving the responsibilities imposed countries may require a satisfactory compromise of
application of the law of indirectly through the mutual claims, the necessary power to make such
nations among members of instrumentality of an compromise has been recognized. The settlement of such
international communities intermediate agency claims may be made by executive agreement.
Q: What are the elements of a state? Q: Does admission of a State into the UN signify
recognition?
A:
A: Yes.
1. People – an aggregate of individuals of both sexes
(for perpetuity), who live together as a community Article 4 (1) of the UN Charter
despite racial or cultural differences (permanent
population). Membership in the United Nations is open to all other peace-
2. Territory – fixed portion of the earth’s surface which loving states which accept the obligations contained in the
the inhabitants occupy (defined territory). present Charter and, in the judgment of the Organization, are
3. Government – it is the agency through which the able and willing to carry out these obligations.
will of the state is formulated, expressed and
realized. The admission of any such state to membership in the United
Nations will be effected by a decision of the General
NOTE: The Principal is the State while the Assembly upon the recommendation of the Security Council.
Government is the Agent.
Thus, admission to membership signifies acceptance of status
4. Independence/sovereignty – the power of a state to as a state for the purposes of international law.
manage its external affairs without direction or
interference from another state (capacity to enter VATICAN AS A STATE
into relations with other States.
Q: Is Vatican a State?
Q: What are the other suggested elements of the State?
A. Yes. In the case of Holy See v. Rosario the SC noted that the
A: Lateran Treaty between Italy and the Pope established the
Statehood of the Vatican for the purpose of assuring to the
1. Civilization Holy See absolute and visible independence and of
2. Recognition guaranteeing to it indisputable sovereignty also in the field of
international relations.
Q: How is the status of an entity as a State accepted by
other States? NOTE: The Lateran Treaty established the STATEHOOD of the
Vatican City "for the purpose of assuring to the Holy See
A: It is through recognition which is the act by which another absolute and visible independence and of guaranteeing to it
State acknowledges that the political entity recognized indisputable sovereignty also in the field of international
possesses the attributes of statehood. relations".
Q: Is there a duty to recognize a state? It was noted that the recognition of the Vatican City as a
state has significant implication - that it is possible for any
entity pursuing objects essentially different from those
It is the fixed portion on the surface of the Earth on which the A: It is the land mass on which people live. It may be
State settles and over which it has supreme authority.
integrate, as in the case of Iran, or dismembered as in the
case of the United States, or it may be partly bounded by
water like Burma, or completely surrounded like Iceland, or
1
Article II, Section 15, 16; Article III, Section 2; Article XIII, may consist of several islands like the Philippine archipelago.
Section 1
2
Article VII, Section 4; Article XVI, Section 2; Article XVIII,
Section 25 NOTE: It includes all the lands and internal waters.
3
Article II, Section 4; Article III, Section 7.
4
The people organized collectively as a legal association is the state which Q: What comprises of the internal waters?
sovereignty resides. Preamble; Article II, Section 1.
Facultad de Derecho Civil 9
UNIVERSITY OF SANTO TOMAS
NOTES ON PUBLIC INTERNATIONAL LAW
Kenneth & King Hizon (3A) _____________________________________________
A: It refers to bodies of water within the land mass, such as Maritime domain
rivers, lakes, canals, gulfs, bays and straits. The UNCLOS
defines internal waters as all waters on the landward side of It consists of the bodies of water within the land mass and
the baselines of the territorial sea. the waters adjacent to the coasts of the state up to a specific
territorial sea.
NOTE: They are those which do not form part of the maritime
domain. (e.g. rivers, lakes, canals, ports and harbors) Regime of the Territorial Sea
Q: May foreign vessel enter into the ports and harbors of Q: What is the so-called regime of territorial sea?
state invoking the right of innocent passage?
A: Defined according to what we call historic right or treaty
A. No. The right of innocent passage may only be invoked by limits theory, all the non-internal waters delineated by
foreign vessel when traversing territorial sea which is a part latitudes and longitudes specified in Article III of the Treaty of
of maritime domain. What may be invoked is the right of Paris of December 20, 1898, between the US, are territorial in
arrival under distress character. They have been regarded by the rest of the world
since Spain claimed them as such after its discovery of the
Q: What is a “man of war”? Philippines in 1521 and such recognition has vested historic
right in the US as successor in interest, to such territorial
A: Man of War refers to naval vessels/ submarines, which seas.
may invoke the right of innocent passage provided that they
navigate on the surface of the water and display their flags. NOTE: Under the UNCLOS, the territorial sea has a uniform
with of 12 miles measured from the low-water mark of the
The Right of Innocent Passage coast.
A: Innocent passage means the right of continuous and 12 nautical miles from the shore beginning from the
5
expeditious navigation of a foreign ship through the territorial low water mark ;
sea of a State for the purpose of traversing that sea without Comprises the marginal belt adjacent to the land
entering the internal waters or calling at a roadstead or port area or the coast includes generally the bays, gulfs,
facility. The passage is innocent as long as it is not prejudicial and straits which do not have character of historic
6
to the peace, good order or security of coastal State. waters
Area where a foreign state may exercise its right of
Navigation through the territorial sea of a State for the innocent passage
purpose of traversing that sea without entering internal
waters, or of proceeding to internal waters, or making for the 2. Contiguous Zone (24-Nautical Miles Contiguous Zone)
high seas from internal waters, as long as it is not prejudicial
to the peace, good order or security of the coastal state. Extends up to 24 nautical miles from the shore
beginning from the low water mark or territorial sea.
Q: What is the right of transit passage? Importance: (a) to prevent infringement of the
State’s fiscal, immigration or sanitary laws within its
A: It has the same concept with the right of innocent passage. territory or its territorial sea; (b) to punish such
The only difference between the two rights is that the right of infringement
innocent passage may be invoked in case of passage through Accordingly, the coastal state may exercise limited
a strait (strait is a narrow body of water separating 2 major jurisdiction over the contiguous zone, to prevent
islands). infringement of customs, fiscal, immigration or
sanitary laws.
Arrival under stress
3. Exclusive Economic Zone (200-Mile EEZ or the
Arrival under stress or involuntary entrance may be due to Patrimonial Sea)
lack of provisions, unseaworthiness of the vessel, inclement
weather, or other case of force majeure, such as pursuit by 200 nautical miles from the shore beginning from
pirates. the low water mark or the baselines
5
Low water mark is the mark of water on the shore at low tide
6
Historic waters are legally part of internal waters of the State
Facultad de Derecho Civil 10
UNIVERSITY OF SANTO TOMAS
NOTES ON PUBLIC INTERNATIONAL LAW
Kenneth & King Hizon (3A) _____________________________________________
The State has the exclusive jurisdiction to exploit the c) Slave trade ships, any ship engage in unauthorized
natural resources in seabed, subsoil, or other broadcasting; and
submarine areas. So that if the coastal State was d) Ships without nationality, or flying a false flag or refusing
notable to exploit the natural resources, foreign to show its flag when required to do so.
states may not exploit the same.
Q: What is “Flag State?
Q. What is the reason why the measurement shall start from
the low water mark? A: State whose nationality (Ship’s registration) the ship
possesses, for its nationality which gives the right to fly
A. If the measurement will start from high tide, the territorial country’s flag
sea, contiguous zone and exclusive economic zone will
recede. The result will be the area of the international waters Doctrine of Hot Pursuit
will be wider. Thus the Philippines cannot exercise dominion
over it. Q: What is the Doctrine of Hot Pursuit?
Is “res commones” – open to: Thus, if an offense is committed by a foreign merchant vessel
a. Navigation within the territorial waters of the coastal state, its own
b. Fishing vessels may pursue the offending vessel into the open sea
c. Scientific research and exploration and upon capture bring it back to its territory for punishment.
d. Mining Yet, to be lawful, the pursuit must have begun before the
e. Laying of submarine cables or pipelines offending vessel has left the territorial sea, or the contiguous
f. Other human activities in the open sea and zone of the coastal state; the pursuit must be continuous and
ocean floor unabated; and it ceases as soon as the ship being pursued
enters the territorial sea of its own or of a third state.
This is also treated as res communes or res nullius, and thus,
are not territory of the any particular state. The traditional Q: When does the pursuit ceases?
view is freedom of the high seas- they are open and
available, without destruction, to the use of all States for the A. The pursuit ceases when as soon as the foreign ship being
purpose state above. pursued enters the territorial sea of its own or that of a third
State.
Q: What is the “Freedom of Navigation”?
Q: Distinguish the flag state and the flag of convenience
A: It is the right to sail ships on seas which is open to all
States and land-locked countries. A. Flag state means a ship has the nationality of the flag of
the state it flies, but there must be a genuine link between
G.R.: Vessels sailing on the high seas are subject only to the the state and the ship (Article 91 of the Convention on the
international law and law of the flag state Law of the Sea).
A: It is the airspace above the high seas is open to all aircraft, A: Under this doctrine, discovery alone is not enough. Mere
just as the high sea is accessible to ships of all States. The discovery gives only an inchoate right to the discoverer. For
State whose aerial space is violated can take measure to title to finally vest, discovery must be followed by effective
protect itself, but it does not mean that the States have occupation in a reasonable time and attestation of the same.
unlimited right to attack the intruding aircraft.
It is the effective exercise of sovereignty over a territory
It is the airspace above the territorial domain and the which is terra nullius or not under the sovereignty of another
maritime and fluvial domain of the state, to an unlimited state.
altitude but not including outer space.
Accordingly, the nationals of the discovering state, in its
Q: May foreign aircraft pass Philippines’ aerial domain name or by its authority, must first take possession of the
invoking the right of innocent passage? territory. Thereafter, they must establish thereon an
organization or government capable of making its laws
A: No. Every State has the exclusive jurisdiction over its aerial respected.
domain. There is no such right as innocent passage in aerial
domain. There must be treaty/agreement allowing such Q: What is effective occupation?
passage.
A: It means continued display of authority which involves 2
THE OUTER SPACE elements:
The rules governing high seas also apply to outer space, 1. Intention and will to act as sovereign;
which is considered as res communes. States have the right to 2. Some actual exercise or display of such authority.
launch satellites in orbit over the territorial air space of the
other state. NOTE: Discovery alone merely creates an inchoate right; it
must be followed by occupation.
Q: Who owns the outer space?
Prescription
A: It is “res commones.”
It is the acquisition of sovereignty over a territory through
NOTE: ASTRONAUTS are ambassadors of humankind under continuous and undisturbed exercise of sovereignty over it
the theory that there are other beings in outer space. Thus
every State has liability to render assistance to an astronaut
7
under distress. 8
Discovery and Occupation which are terra nullius (land belonging to no one)
Prescription; Territory may also be acquired through continuous and
uninterrupted possession over a long period of time.
The Outer Space Treaty 9
Cession by Treaty; Examples are Treaty of Paris, treaty between France and
US ceding Louisiana to the latter and treaty between Russia and US ceding
Outer space is free for exploration and use by all States; it Alaska to the latter
10
cannot be annexed by any State; and it may be used Conquest or Subjugation (conquistadores)—this is no longer recognized,
inasmuch as the UN Charter prohibits resort to threat or use of force against
exclusively for peaceful purposes. Thus, nuclear weapons of the territorial integrity or political independence of any state
11
Accretion; It is the increase in the land area of the State, either through
natural means, or artificially, through human labor.
Facultad de Derecho Civil 12
UNIVERSITY OF SANTO TOMAS
NOTES ON PUBLIC INTERNATIONAL LAW
Kenneth & King Hizon (3A) _____________________________________________
during such period as is necessary to create under the 1932 that the U.S. Government would not recognize any
influence of historical development the general conviction territorial or administrative changes the Japanese might
that the present condition of things is in conformity with the impose upon China. The Stimson Doctrine was echoed in
international order. March 1932 by the Assembly of the League of Nations, which
unanimously adopted an anti-Japanese resolution
Q: For prescription to set in, what is the period required by incorporating virtually verbatim the Stimson Doctrine of non-
the law? recognition. However, as the Secretary of State later realized,
he had at his disposal only "spears of straws and swords of
A: In international law, there is no rule of thumb as to the ice." In short order, Japanese representatives simply walked
length of time for acquisition of territory through out of the League, and the Kwangtung Army formalized its
prescription. In this connection, consider the Grotius conquest of Manchuria by establishing the puppet state of
Doctrine of immemorial prescription, which speaks of Manchukuo under former Chinese emperor Pu-Yi. When war
uninterrupted possession going beyond memory. between Japan and China broke out following a minor clash
between military units at the Marco Polo Bridge in 1937, the
Q: What are the 2 parts of the national territory? impotence of the "Stimson Doctrine" became even more
apparent. In other words, this document basically said that
A: the US was not to recognize any administrative or territorial
1. The Philippine archipelago with all the islands and waters changes that Japan imposed upon China. This was also
embraced therein; and recognized when speaking of the Soviet Union taking over
2. All other territories over which the Philippines has three Baltic countries. It was the idea of forced expansionism
sovereignty or jurisdiction prevention.
Cession Accretion
It is a bilateral mode of acquisition, the other modes being This is the increase in the land area of the State, either
unilateral. It is derivative mode since its validity depends on through natural means or artificially through human labour.
the valid title of the ceding state; the cessionary state cannot The Sector Principle, applied in the Polar region of the Arctic
have more rights than what the ceding state possessed. and Antartica.
Q: Do you consider the Spratlys Group of Islands as part of A. Through discovery of Tomas Cloma and occupation.
Philippine Archipelago?
SOVEREIGNTY
A. Spratlys Group of Islands is not part of the Philippine
Archipelago because it is too far away from the three main Q: What is sovereignty?
islands of the Philippines. It is found, geographically, almost in
the middle of the South China Sea. It is not part of the A: It is the supreme legal authority in relation to the subjects
Philippine Archipelago. Historically, when we talk about within its territorial domain.
Philippine Archipelago, we refer to those islands and waters
that were ceded by the Spain to the United States by virtue of
Q: What are the kinds of sovereignty? A: So these are the limitations of the sovereignty in the field
of international relations:
A:
1. limitations brought about by the entry into treaties
a. Legal- sovereignty is the authority which has the with other states;
power to issue final commands. In our country, the 2. limitations brought about by joining the Family of
Congress is the legal sovereign. Nations (Tañada vs. Angara GR. No. 118295 May
b. Political- Sum total of all the influences of a State, 1997)
legal and non-legal which determine the course of
law NOTE: The Constitution does not envision a hermit type
c. Internal- It refers to the power of the State to isolation of the country from the rest of the world.
control its domestic affairs. It is the supreme power
over everything within its territory. By the doctrine of incorporation, the country is bound
d. External- Also known as Independence; which is by generally accepted principles of international law,
freedom from external control. It is the power of which are considered to be automatically part of our
State to direct its relations with other States own laws.
3
Q: What are the characteristics of sovereignty?PI A The constitutional policy of a "self-reliant and
independent national economy" does not
A: necessarily rule out the entry of foreign
1. permanent, investments, goods and services. It contemplates neither
2. exclusive, "economic seclusion" nor "mendicancy in the international
3. comprehensive, community" (Tañada vs. Angara GR. No. 118295 May 1997).
4. absolute,
5. indivisible, Pacta Sunt Servanda
6. inalienable, and
7. imprescriptible Q: What is the principle of pacta sunt servanda?
NOTE: These characteristics are only true in DOMESTIC A: The international agreements must be performed in good
SPHERES but NOT in with respect to INTERNATIONAL LAW. faith. A treaty engagement is not a mere moral obligation but
creates a legally binding obligation on the parties. A state
Q: Distinguish sovereignty vs. dominion. which has contracted a valid international agreement is
bound to make in its legislation such modification as may be
A: necessary to ensure fulfillment of the obligation undertaken.
Accordingly, States may not advance the provisions of their
own Constitution as well as the act of their own laws in order
Q: What is the principle of State Continuity? NOTE: As for judicial decisions the same are valid during the
occupation and even beyond except those of a political
A: It is the principle which states that the disappearance of complexion, which are automatically annulled upon the
any of the elements of statehood would cause the extinction restoration of the legitimate authority.
of the State, but mere changes as to one or more of those
elements would not necessarily, as a rule, bring about such Only those decisions of political complexion automatically fall
extinction. to the ground upon the return of the US (for example) but in
common crimes like rape, robbery, kidnapping, judgment
Also, the identity of the State in international law is not remains valid even if they were rendered in a Japanese
affected by changes in the government, whether brought created court.
about legally or illegally by revolution or coup d’etat.
Q: What is the effect of change of sovereignty when the
Q: During the Japanese Occupation, was there a change in Spain ceded the Philippines to the U.S.?
the sovereignty during such period (1941-1945)?
A: The effect is that the political laws of the former sovereign
A: No. The sovereignty over the country remained with the are not merely suspended but abrogated. As they regulate the
Americans because the Americans never ceded the relations between the ruler and the ruled, these laws fall to
Philippines to Japan. What the Japanese military occupants the ground ipso facto unless they are retained or re‐enacted
performed there were not sovereignty but acts of by positive act of the new sovereign. Non‐political laws, by
sovereignty. You have to distinguish between sovereignty contrast, continue in operation, for the reason also that they
itself and acts of sovereignty because the characteristics of regulate private relations only, unless they are changed by
sovereignty are absolute, indivisible, imprescriptible and the new sovereign or are contrary to its institutions.
comprehensive. Sovereignty over the Philippines remained in
the Philippines although the ones that performed the acts of Q: What is the effect of Japanese occupation to the
sovereignty were Japanese, the occupants. sovereignty of the U.S. over the Philippines?
JURISDICTION
ACTS OF THE STATE
Q: What is Jurisdiction?
An act of state is done by the sovereign power of a country,
or by its delegate, within the limits vested in him. It cannot be
A: Jurisdiction is the manifestation of sovereignty. The
questioned or made the subject of legal proceedings in a
jurisdiction of the state is understood as both its authority
court of law.
and the sphere of the exercise of that authority.
Note: Within particular reference to Political Law, an act of
Q: What are the kinds of jurisdiction?
State is an act done by the political departments of the
government and not subject to judicial review. An illustration
A:
is the decision of the President, in the exercise of his
diplomatic power, to extend recognition to a newly-
1. Territorial jurisdiction- authority of the state to have all
established foreign State or government.
persons and things within its territorial limits to be
completely subject to its control and protection
Q: When is act of person considered “State action” covered
2. Personal jurisdiction- authority of the state over its
by the Constitution?
nationals, their persons, property, and acts whether
within or outside its territory (e.g. Art. 15, CC)
A: In constitutional jurisprudence, the act of persons distinct
3. Extra-territorial jurisdiction- authority of the State over
from the government are considered “state action” covered
persons, things, or acts, outside its territorial limits by
by the Constitution:
reason of their effect to its territory
1. When the activity it engages in is a “public function”;
Q: What are the exemptions to the territorial jurisdiction
2. When the government is so significantly involved
rule?
with the private actor as to make the government
responsible for his action; and
A:
3. When the government has approved or authorized
the action.
Q: Distinguish between sovereignty from independence?
A: Exempt are:
It must be organized, exercising control over and capable of NOTE: In international law, the form of government does not
maintaining law and order within the territory. It can be held really matter. Yet, with respect to the Constitution, the kind
internationally responsible for the acts of the inhabitants. The of government matters.
identity of the state is not affected by changes in the
government. Article II
Q: What if the government performs an act that proves to Section 1. The Philippines is a democratic and republican
be harmful to the people, will you attribute that to the State. Sovereignty resides in the people and all government
State? authority emanates from them.
A: No. The mandate of the State to the government, as the Functions of Government
agent, is for the government to promote the welfare of the
people; not to harm the people. In such a case, the Q: What are the functions of Government?
government has defied its mandate.
A:
Consequently, there was a revolution, which came about
upon the behest of the State itself because the agent is no 1. Governmental (Constituent)--are the compulsory
longer true to its mandate. It came about upon the request if functions which constitute the very bonds of society
the state itself because the agent is no longer true to its
mandate. This is actually the justification for revolutions. This Example: The definition and punishment of crimes,
development is known as Direct State Action. administration of justice in civil cases, administration of
political duties, dealings of the state with foreign powers,
Q: Give the distinction between a government and determination of contractual rights between individuals, the
administration? regulation of transmission of property, keeping of order
A: Government is the institution through which the state 2. Proprietary (Ministerial)—optional functions of the
exercises power. Administration consists of the set of people government for achieving a better life for the
currently running the institution. community
Q: Give the distinction between the presidential and Example: Agrarian Reform- this is in reality a ministrant
parliamentary form of government? function but was made constituent by the constitution
A: The presidential form of government’s identifying feature Note: Distinction of function is no longer relevant because
is what is called the “separation of powers.” The essential the Constitution obligates the State to promote social justice
characteristics of a parliamentary form of government are: and has repudiated the laissez faire policy. However, in
Shipside Incorporated v. CA, the nature of the function of the
1. The members of the government or cabinet or the BCDA was a factor to determine the locus standi of the
executive arm are, as a rule, simultaneously members Government.
of the legislature;
2. The government or cabinet consisting of the political Parents Patriae
leaders of the majority party or of a coalition, who are
also members of the legislature, is in effect a Q: What is the doctrine of parents patriae?
committee of the legislature;
3. The government or cabinet has a pyramidal structure A: It posits that it is the government which acts as guardian of
at the apex of which is the Prime Minister or his the rights of the people and may initiate legal actions for and
equivalent; in behalf of a particular individual.
4. The government or cabinet remains in power only for
so long as it enjoys the support of the majority of the Q: Is Bases Conversion Development Authority (BCDA)
legislature; exercising constituent or ministrant function?
Q: What is the mandate of the Philippine Government? 2. By government of paramount force - that which is
established in the course of war by invading forces of one
A: Art. II, Sec. 4 - "The prime duty of the Government is to belligerent to the territory of other belligerent, the
serve and protect the people…" Thus, whatever good is done government of which is displaced.
by government -attributed to the State; whatever harm is
done by the government - attributed to the government It is established by one belligerent in the course of war in
alone, not the State the territory of the other belligerent which it was able to
occupy and which was supported by its military might.
NOTE: The government under Cory Aquino and the Freedom A: Yes, BJE is a state in all but name as it meets the criteria of
Constitution is a de jure government. It was established by a state laid down in the Montevideo Convention namely, a
authority of the legitimate sovereign, the people. It was a permanent population, a defined territory, a government and
revolutionary government established in defiance of the 1973 a capacity to enter into relations with other states.
Constitution. (In Re: Letter of Associate Justice Puno, 210
SCRA 589 (1992) Even assuming that the MOA‐AD would not necessarily sever
any portion of Philippine Territory, the spirit animating it –
Q: Is PGMA’s administration a de jure government? which has betrayed itself by its use of the concept of
association – runs counter to the national sovereignty and
A: The government under President Gloria Macapagal-Arroyo territorial integrity of the Republic.
established after the ouster of President Estrada is de jure
government. Q: Does the people’s right of self‐determination extend to a
unilateral right of secession?
Q: What are the effects when Congress declares a state of XPNs: Only when it is exercised as an act of self-defense or
war? when it is decreed by the Security Council as a preventive or
enforcement action for the maintenance of international
A: peace and security. Some writers would add a third
justification for intervenion, and this is when such action is
1. Art. VI, Sec. 23 - "In times of war…the Congress may, agreed upon in a treaty. Intervention may also be allowed
by law, authorize the President, for a limited when requested from fellow states or from the UN by the
period and subject to such restrictions as it parries to a dispute or by a state beset by rebellion.
may prescribe, to exercise powers necessary and
proper to carry out a declared national policy. NOTE: Intervention is Different from "Intercession."
Unless sooner withdrawn by resolution of the Intercession is allowed!
Congress, such powers shall cease upon the next
adjournment thereof." EX.: Diplomatic Protest, Tender of Advice
2. Art. VII, Sec. 18 - "The President shall be the
Commander-in-Chief of all armed forces…and Nicaragua v. USA, Communique 86/8 (June 27, 2986)
whenever it becomes necessary, he may call out
such armed forces to prevent or This is where the US was found guilty of interventio in the
suppress… invasion…In case, invasion…when the affairs of Nicaragua for sending troops to Nicaragua to aid the
public safety requires it, he may, for a period not contras, inasmuch as there was no armed attack against the
exceeding 60 days, suspend the privilege of the writ latter. Note that the protest or demand for rectification or
of habeas corpus or place the Philippines or any part reparation does not comprise intervention. Thus, the act of
thereof under martial law…" President Clinton in discoraging Americans from investing in
Burma was not considered as intervention.
RIGHTS OF SOVEREIGNTY AND INDEPENDENCE
The Drago Doctrine
Q: What is sovereignty?
Q: What is the “Drago Doctrine”?
A: It is the supreme, uncontrollable power inherent in a
state by which that state is governed. It is the supreme A: Generally Intervention is Prohibited (Drago Doctrine)
powerof the State to command and enforce obedience, the
power to which, legally speaking, all interests are practically In 1902, UK, Germany and Italy blockaded Venezuelan
subject and all wills subordinate. ports to compel it to pay its contractual debts leading
Foreign Minister Drago to formulate a doctrine that " a
Q: What is independence? public debt cannot give rise to the right of intervention”.
This principle was later adopted in the Second Hague
A: It is also known as external sovereignty. It signifies the Conference, but subject to the qualification that the debtor
freedom of the state to control its own foreign affairs. state should not refuse or neglect to reply to an offer of
arbitration or after accepting the offer, prevent any
Under this resolution, intervntion was permitted if the debtor Ex.: Hungary
state refused to an offer to arbitrate the creditor’s claim, or
having agreed to arbitrate, prevented agreement on the NOTE: In 1956, Hungary was in internal turmoil, and asked
compromise, or having agreed thereto, refused to abide by the Soviet forces to intervene. While the intervention was
the award of the arbitrator. upon invitation, it was still condemned because the
Hungarian government was a mere Soviet puppet
Intervention under the UN Charetr
3. By UN Authorization and Resolution
UN itself categorically binds itself not to interven in matters
which are essentially within the doemstic jurisdiction of any Examples: Korean War, 1990 Iraqi Annexation of Kuwait
state. In the UN Declaration of Rights and Duties of States, it
provided that every state has the duty to refrain from 4. On Humanitarian Grounds
intervention in the internal or external affairs of any other
State. This has recently evolved by international custom.
Thus, has become a primary source of international law.
Charter of the Organization of American States
Examples: Intervention in Somalia, Intervention in Bosnia
The charter of the Organization of American States is more and Kosovo (No UN Resolution, but NATO intervened
unequivocal with the statement that: militarily on the ground that there was ethnic cleansing
by Serbs of ethnic minorities), Intervention in East Timor
Article 19
No State may use or encourage the use of coercive Q: Who has the authority to recognize?
measures of an economic or political character in order to
force the sovereign will of another State and obtain from it A: It is a matter to be determined according to the municipal
advantages of any kind. law of each state. In the Philippines, there is no explicit
provision in the Constitution which vests this power in any
Q: What is Pacific Blockade? department. But since the President is empowered to appoint
and receive ambassadors and public ministers, it is conceded
A: It is one imposed during times of peace were the countries that by implications, it is the executive department that is
at war, then a blockade is a legitimate measure in fact, a primarily endowed with the power to recognize foreign
blockade must not be violated by a neutral State. If breached, governments and States.
the neutral vessel is seized.
Q: What are the effects or legal consequences of recognition Q: When does belligerency exist?
of government?
A: It exists when a sizable portion of the territory of a state is
A: under effective control of an insurgent community which is
seeking to establish a separate government and the
1. The recognized government or State acquires the insurgents are in de facto control of a portion of the territory
capacity to enter into diplomatic relations with and population, have political organization, are able to
recognizing States and to make treaties with them; maintain such control, and conduct themselves according to
2. The recognized government or State acquires the right of the laws of war.
suing in the courts of law of the recognizing State;
Q: What are the requisites in recognizing Belligerency?
1. There must be an organized civil government NOTE: Rebels are enemy combatants and accorded the rights
directing the rebel forces; or an organized civil of prisoners of war. And, essentially, this means that there
government having control and supervision over the are two competing governments in one country.
armed struggle;
2. The rebels must occupy a substantial portion of the Q: What is the form of such recognition?
Territory of the state;
3. The conflict between the legitimate government and A: It may either be express or implied; the proclamation by
the rebels must be serious, making the outcome the parent state of a blockade of a port held by the rebels is
uncertain; or serious and widespread struggle with implied recognition of belligerency; so is the proclamation of
the outcome uncertain neutrality by a third state.
4. The rebels must be willing and able to observe the
rules/ customs/ laws of war. Q: What are the effects of recognition of belligerency?
Q: What is the effect of the absence of any of these A: Responsibility for acts of rebels resulting in injury to
conditions/ requisites? nationals of the recognizing state shall be shifted to the rebel
government; the legitimate government recognizing the
A: It will result merely in insurgency which is rarely rebels shall observe the laws of war in conducting hostilities;
recognized. third states recognizing the belligerency shall maintain
neutrality; and recognition is only provisional (for the
Q: What are the legal consequences of belligerency? duration of the armed struggle) and only for the purpose of
the hostilities.
A:
Q: Distinguish insurgency from belligerency
1. Before recognition, it is the legitimate government
that is responsible for the acts of the rebels affecting A:
foreign nationals and their properties. Once
recognition is given, responsibility is shifted to the INSURGENCY BELLIGERENCY
rebel government; a mere initial stage of war. It More serious and
2. The legitimate government, once it recognizes the involves a rebel movement, widespread and presupposes
rebels as belligerents, is bound to observe the laws and is usually not the existence of war
and customs of war in conducting the hostilities— recognized between 2 or more states
this is no longer a matter of municipal law. Once the (1st sense) or actual civil war
government captures a rebel, that he a combatant within a single state (2nd
and that as combatant, he will have to be treated as sense).
a prisoner of war. Prisoners of war have rights under Sanctions to insurgency are Belligerency is governed by
international humanitarian law. governed by municipal law – the rules on international law
Revised Penal Code, i.e. as the belligerents may be
E.g. They cannot execute rebels considered as POWs. rebellion. given international
personality.
3. From the viewpoint of third States, is to put them
under obligation to observe strict neutrality and Q: Has the CPP/NPA and MILF complied with these
abide by the consequences arising from that conditions?
position; and
A: No. But, there are some indications they are striving to
Example: meet the conditions. They executed common criminals, after
a trial. It is like saying they have a government.
a. It must abstain from taking part in the
hostilities; and NOTE: The maintenance of peace and order, and
b. Most acquiesce to restrictions imposed administration of justice, are constituent functions of the
by the rebels, such as visit and search of its government.
merchant ships
Q: Explain, using example, recognition of belligerency.
4. Recognition puts the rebels under responsibility to (1991 Bar).
third States and to the legitimate government for all
Accordingly, the state may take such measures, including the The third part is called the “selfish policy”—the guiding
use of force, as may be necessary to resist any danger to its principle of Philippine foreign policy is the national interest.
existence. Such action being the exercise of an inherent right, However, this is tempered with concern for “equality, peace,
freedom and justice.
Alternative A: In International Law, the action taken by the An example of this regional agency is the Organization of
allied forces cannot find justification. It is covered by the American States.
prohibition against the use of force prescribed by the United
Nations Charter and it does not fall under any of the Q: On 31 October 2001, members of Ali Baba, a political
exceptions to that prohibition. extremist organization based in and under the protection
of Country X and espousing violence worldwide as a
The UN Charter in Article 2(4) prohibits the use of force in the means of achieving its objective, planted high-powered
relations of states by providing that all members of the UN explosives and bombs at the International Trade Tower
"shall refrain in their international relations from the threat (ITT) in Jewel City in Country Y, a member of the United
or use of force against the territorial integrity or political Nations. As a result of the bombing and the collapse of the
independence of any state, or in any other manner 100-story twin towers, about 2000 people, including
inconsistent with the purposes of the United Nations." women and children were killed or injured and billions of
This mandate does not only outlaw war; it encompasses all dollars in property were lost. Immediately after the
threats of and acts of force or violence short of war. incident, Ali Baba, speaking through its leader Bin
Derdandat, admitted and owned responsibility for the
As thus provided, the prohibition is addressed to all UN bombing of ITT, saying that it was done to pressure
members. However, it is now recognized as a fundamental Country Y to release captured members of the
principle in customary international law and, as such, is terrorist group. Ali Baba threatened to repeat its terrorist
binding on all members of the international community. acts against Country Y if the latter and its allies failed to
accede to Ali Baba’s demands. In response, Country Y
The action taken by the allied forces cannot be justified under demanded that Country X surrender and deliver Bin
any of the three exceptions to the prohibition against the use Derdandat to the government authorities of Country Y for
of force which the UN Charter allows. These are: the purpose of trial and "in the name of justice." Country X
refused to accede to the demand of Country Y.
(1) Inherent right of individual or collective self-defense
under Article 51; What action or actions can Country Y legally take against Ali
(2) Enforcement measure involving the use of armed Baba and Country X to stop the terrorist activities of Ali
forces by the UN Security Council under Article 42; Baba and dissuade Country X from harboring and giving
and protection to the terrorist organization? Support your
(3) Enforcement measure by regional arrangement answer with reasons. (2002 Bar)
14
under Article 53 , as authorized by the UN
Security Council. The allied forces did not launch A:
military operations and did not occupy Iraq on the
claim that their action was in response to an armed 15
Nothing in the present Charter precludes the existence of regional arrangements or agencies for
attacked by Iraq, of which there was none. dealing with such matters relating to the maintenance of international peace and security as are
appropriate for regional action provided that such arrangements or agencies and their activities are
14
consistent with the Purposes and Principles of the United Nations.
1. The Security Council shall, where appropriate, utilize such regional arrangements or agencies for
enforcement action under its authority. But no enforcement action shall be taken under regional The Members of the United Nations entering into such arrangements or constituting such agencies
arrangements or by regional agencies without the authorization of the Security Council, with the shall make every effort to achieve pacific settlement of local disputes through such regional
exception of measures against any enemy state, as defined in paragraph 2 of this Article, provided for arrangements or by such regional agencies before referring them to the Security Council.
pursuant to Article 107 or in regional arrangements directed against renewal of aggressive policy on The Security Council shall encourage the development of pacific settlement of local disputes through
the part of any such state, until such time as the Organization may, on request of the Governments such regional arrangements or by such regional agencies either on the initiative of the states
concerned, be charged with the responsibility for preventing further aggression by such a state. concerned or by reference from the Security Council.
2. The term enemy state as used in paragraph 1 of this Article applies to any state which during the
Second World War has been an enemy of any signatory of the present Charter. This Article in no way impairs the application of Articles 34 and 35.
(1) Country Y may exercise the right of self-defense, as Q: Will the subsequent discovery of weapons of mass
provided under Article 51 of the UN Charter "until the destruction in Iraq after its invasion by the US justify the
Security Council has taken measure necessary to maintain attack initiated by the latter?
international peace and security." Self defense
enables Country Y to use force against Country X as well as A: Even if Iraq’s hidden arsenal is discovered - or actually
against the Ali Baba organization. used - and the United States is justified in its suspicions, that
circumstance will not validate the procedure taken against
(2) It may bring the matter to the Security Council which may Iraq. It is like searching a person without warrant and
authorize sanctions against Country X, including measure curing the irregularity with the discovery of prohibited
invoking the use of force. drugs in his possession. The process cannot be reversed. The
warrant must first be issued before the search and seizure
Under Article 4 of the UN Charter, Country Y may use force can be made.
against Country X as well as against the Ali Baba organization
by authority of the UN Security Council. The American invasion was made without permission
from the Security Council as required by the UN Charter. Any
Alternative A: Under the Security Council Resolution No. subsequent discovery of the prohibited biological and
1368, the terrorist attack of Ali Baba may be defined as a chemical weapons will not retroactively legalize that invasion,
threat to peace, as it did in defining the 11 September 2001 which was, legally speaking, null and void ab initio.
attacks against the United States. The resolution
authorizes military and other actions to respond to terrorist Q: State B, relying on information gathered by its
attacks. However, the use of military force must be intelligence community to the effect that its neighbor, State
proportionate and intended for the purpose of detaining C, is planning an attack on its nuclear plan and research
the persons allegedly responsible for the crime and to institute, undertook a "preventive" attack in certain bases
destroy military objectives used by the terrorists. on State C located near the border of the two states. As a
result, State C presented the incident to the UN General
The fundamental principles of international humanitarian Assembly but the latter referred it to the UN Security
law should be respected. Country Y cannot be granted Council as a matter, which disturbs or threatens
sweeping discretionary powers that include the power to "international peace and security". State B argued that it
decide what states are behind the terrorist organizations. It was acting within the legal bounds of Article 51 of the UN
is for the Security Council to decide whether force may be Charter and that it was a permitted use of force in self-
used against specific states and under what conditions the defense and against armed attack. Is State B responsible
force may be used. under International Law? Did State B act within the bounds
set forth in the UN Charter on the use of force in self-
Q: Is the United States justified in invading Iraq invoking its defense? (1985 Bar)
right to defend itself against an expected attack by Iraq
with the use of its biological and chemical weapons of A: An armed attack is not a requirement for the exercise of
mass destruction? the right of self-defense. However, the attack of State B on
State C cannot be justified as an act of self-defense under Art.
A: The United States is invoking its right to defend itself 51 of the UN Charter considering that the danger perceived
against an expected attack by Iraq with the use of its by State B was not imminent. State B ought to have
biological and chemical weapons of mass destruction. There exhausted peaceful and pacific methods of settlements
is no evidence of such a threat, but Bush is probably invoking instead of resorting to the use of force.
the modern view that a state does not have to wait until the
potential enemy fires first. The cowboy from Texas says that Q: Who can declare war?
outdrawing the foe who is about to shoot is an act of
self-defense. A: No one! The Constitution has withheld this power from
the government. What the Constitution allows is a
Art. 51 says, however, that there must first be an "armed declaration of a "State of War". Under Art. VI, Sec. 23(1) -
attack" before a state can exercise its inherent right of self- "Congress, by a vote of 2/3 of both Houses, in joint session
defense, and only until the Security Council, to which the assembled, voting separately, shall have the sole power to
aggression should be reported, shall have taken the declare the existence of a state of war. This means that we
16
necessary measures to maintain international peace and are already under attack.
security. It was the United States that made the "armed
attack" first, thus becoming the aggressor, not Iraq.
Iraq is now not only exercising its inherent right of self- 16
Section 2. The Philippines renounces war as an instrument of national policy, adopts the generally
accepted principles of international law as part of the law of the land and adheres to the policy of
defense as recognized by the UN Charter. peace, equality, justice, freedom, cooperation, and amity with all nations (Article 2).
The Congress, if not in session, shall, within twenty-four hours following such proclamation or
A:
suspension, convene in accordance with its rules without need of a call. 1. Intervention as an act of individual or collective self-
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the defense
factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the
extension thereof, and must promulgate its decision thereon within thirty days from its filing.
2. Intervention by treaty stipulations or by invitation
3. Intervention by the United Nation’s authorization
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning
of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military 4. Intervention on human grounds, which according to
courts and agencies over civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.
authorities in international law has now evolved into
an international custom.
The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or
offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be released.
XPN: (When intervention is allowed) The action was the subject of universal dispprobation which
led the foreign Minister Drago to formulate a doctrine that
1. Intervention as an Act of Individual and Collective " a public debt cannot give rise to the right of
Self-Defense; intervention”. This principle was later adopted in the
19
2. Intervention by Treaty Stipulation or by Second Hague Conference , but subject to the qualification
Invitation; that the debtor state should not refuse or neglect to reply to
3. By UN Authorization and Resolution- like what an offer of arbitration or after accepting the offer, prevent
happened in the Korean War and during in Iraqi any compromise from being agreed upon, or after the
Annexation of Kuwait in 1990 (there was a UN arbitration, fail to submit to the award, the qualification is
Resolution authorizing the US-led multilateral force known as the Porter resolution.
to intervene);
4. On humanitarian grounds –this has evolved by This was recognized in the Hague Convention of 1907
international custom and thus become a primary through a provision that the contracting powers agree to
source of international custom (Intervention in have the recourse to armed force for the recovery of contract
Somalia; in Bosnia and Kosovo wherein there was debts claimed from the governmnt of one country by the
no UN Resolution but NATO intervened militarily in government of another country as being due to its nationals.
the ground that there was ethnic cleansing by Serbs The force of this doctrine was later dissipated by the Porter
of the minorities; Intervention in East Timor to Resolution.
protect the East Tomorese);
Porter Resolution
Q: What is "Intervention by Invitation"?
Under this resolution, intervntion was permitted if the debtor
A: It presupposes that the inviting State is not a mere puppet state refused to an offer to arbitrate the creditor’s claim, or
of the intervening State EX.: Hungary. having agreed to arbitrate, prevented agreement on the
compromise, or having agreed thereto, refused to abide by
In 1956, Hungary was in internal turmoil, and asked the the award of the arbitrator.
Soviet forces to intervene. While the intervention was upon
invitation, it was still condemned because the Hungarian Intervention by treaty stipulations or by invitation
government was a mere Soviet puppet.
Q: What is the requirement under this intervention?
Nicaragua v. USA, Communique 86/8 (June 27, 2986)
The charter of the Organization of American States is more A: The Muslim secessionist movement is not an international
unequivocal with the statement that: dispute, which under Article 35(1) of the UN Charter, a
member of the United Nations may bring to the attention of
Article 19 the Security Council or the General Assembly. Such dispute
can arise only between two or more States. The attempt of
No State or group of States has the right to intervene, the Arab League to place on the agenda of the General
directly or indirectly, for any reason whatever, in the Assembly the Muslim problem in Mindanao can only be views
internal or external affairs of any other State. The foregoing as an interference with a purely domestic affair.
principle prohibits not only armed force but also any other
form of interference or attempted threat against the Q: When is the use of force allowed under the UN Charter
personality of the State or against its political, economic, by the UNSC resolution?
and cultural elements.
A:
Article 20
20
1. Article 41
No State may use or encourage the use of coercive
measures of an economic or political character in order to
20
supra
Facultad de Derecho Civil 35
UNIVERSITY OF SANTO TOMAS
NOTES ON PUBLIC INTERNATIONAL LAW
Kenneth & King Hizon (3A) _____________________________________________
21
2. Article 42 scale but also assistance to rebels in the form of the provision
22
3. Article 51 of weapons or logistical or other support. Such assistance
may be regarded as a threat or use of force, or amount
NOTE: There is a limited definition of armed attacks - to intervention in the internal or external affairs of other
Nicargua v. United States. States."
Right of legation A:
1. Ambassadors or nuncios accredited to Heads of
Q: Discuss the right of legation. State and other heads of missions of equivalent rank
2. Envoys ministers and internuncios accredited to
A: The exercise of the right of legation is one of the most heads of State
effective ways of facilitating and promoting intercourse 3. Charge d’ affaires accredited to ministers of foreign
among nations. Through the active right of sending affairs
diplomatic representatives and the passive right of receiving
Q: What are the grounds for termination of diplomatic NOTE: Examples of regular callings include acting as notary,
relations under municipal law? civil registrar and similar administrative capacities and
protecting and assisting the nationals of the sending State.
A: RADAR
1. Resignation Q: What are the ranks of consuls?
2. Accomplishment of the purpose
3. Death A:
4. Abolition of the office 1. Consul‐general – Heads several consular districts, or
5. Removal one exceptionally large consular district;
2. Consul – Takes charge of a small district or town or
Q: What are the grounds for termination of diplomatic port;
relation under international law? 3. Vice‐consul – Assist the consul; and
4. Consular agent – Usually entrusted with the
A: performance of certain functions by the consul.
1. War– outbreak between the sending and the Q: What are the duties of consuls?
receiving States.
2. Extinction of either the sending State or the A:
receiving State 1. Protection of the interests of the sending State and
3. Recall– demanded by the receiving State when the its nationals in the receiving State.
foreign diplomat becomes persona non grata 2. Promotion of the commercial, economic, cultural,
and scientific relations of the sending and receiving
Q: Will the termination of diplomatic relations also States.
terminate consular relations between the sending and 3. Observes the conditions and developments in the
receiving States? receiving State and report the same to the sending
State.
A: No. Consuls belong to a class of State agents distinct from 4. Issuance of passports and other travel documents to
that of diplomatic officers. They do not represent their State nationals of the sending State and visas or
in its relations with foreign States and are not intermediaries appropriate documents to persons wishing to travel
through whom matters of State are discussed between to the sending State.
governments. 5. Supervision and inspection of vessels and aircraft of
the sending State.
Consuls look mainly after the commercial interest of their
own State in the territory of a foreign State. They are not Q: Where do consuls derive their authority?
clothed with diplomatic character and are not accredited to
However, consuls are liable to: Q: Discuss the differences, if any, in the privileges or
1. Arrest and punishment for grave offenses; and immunities of diplomatic envoys and consular officers from
2. May be required to give testimony, subject to the civil and criminal jurisdiction of the receiving State.
certain exceptions.
A: A diplomatic agent shall enjoy immunity from the criminal
NOTE: Members of a consular post are under no obligation to jurisdiction of the receiving State. He shall also enjoy
give evidence on the following situations: immunity from its civil and administrative jurisdiction except
a. Concerning matters connected with the exercise of in the case of:
their functions 1. A real action relating to private immovable property
b. To produce official correspondence and documents situated in the territory of the receiving State, unless
c. To give evidence as expert witness with regard to he holds it on behalf of the sending State for the
the law of the sending State purpose of the mission;
2. An action relating to succession in which the
The consular offices are immune only: diplomatic agent is involved as executor,
1. With respect to that part where the consular work is administrator, heir or legatee as private person and
being performed; and not on behalf of the sending State;
2. May be expropriated by the receiving state for 3. An action relating to any professional or commercial
purposes of national defense or public utility. activity exercised by the diplomatic agent in the
receiving State outside of his official functions.
With respect to expropriation by the receiving State, steps (Article 32, Vienna Convention of Diplomatic
shall be taken to avoid impeding the performance of consular Relations)
functions, and prompt, adequate and effective compensation
shall be paid by the sending State. A consular officer does not enjoy immunity from the criminal
jurisdiction of the receiving State and are not amenable to
Q: What are the differences between Diplomatic Immunity the jurisdiction of the judicial or administrative authorities of
and Consular Immunity? the receiving State in respect of acts performed in the
exercise of consular functions.
A:
However, this does not apply in respect of a civil action
DIPLOMATIC CONSULAR either:
“Premises of the mission” “Consular premises” includes 1. Arising out of a contract concluded by a consular
includes the building or parts of the buildings or parts of officer in which he did not enter expressly or
building and the land buildings and the land impliedly
irrespective of the ownership irrespective of ownership used 2. By a third party for damages arising from an accident
used for the purpose of the exclusively for the purposes of in the receiving State caused by a vehicle, vessel or
mission including the residence consular posts
of the head of mission
A: A state may punish offenses committed by its nationals A: It has a more exclusive meaning in that it applies only to
anywhere in the world. In civil matters the personal laws of certain members of his state accorded more privileges that
the country follows their nationals wherever they are. the rest of the people who are at allegiance. Its significance is
municipal and not international.
In the Philippines, Art. 15 of the NCC follow the nationality
principle. Q: What is multiple nationality?
STATELESSNESS A:
DE JURE STATELESS DE FACTO STATELESS NOTE: The terms of the Universal Declaration of Human
PERSONS PERSONS Rights are sufficiently bound to encompass the stateless
stripped of their nationality those who possess a person with its protection and sympathy as a member of the
by their former government nationality whose country human family.
and without having an does not give them
opportunity to acquire protection outside their own Q: What are the consequences of statelessness?
another country and who are
commonly referred to as A:
refugees
1. Nationality of claim
TREATMENT OF ALIENS 2. Exhaustion of local remedies
3. No waiver
Q: What is the “Doctrine of State Responsibility to Aliens”? 4. No unreasonable delay in filing claim
5. No improper behavior by injured alien
A: A state is under obligation to make reparation to another
state for the failure to fulfill its primary obligation to afford, in NOTE: The doctrine of state responsibility is applied more
accordance with international law, the proper protection due frequently to tortuous rather than contractual liability
to an alien who is a national of the latter state. because of the unwillingness of most states to act as
“collection agencies” for their nationals entering into private
Under this doctrine, a state may be held responsible for: agreements with or in foreign countries.
GR: State has no legal obligation to admit aliens The more recent example is the Luneta hostage-taking
incident. The government of Hong Kong asks for indemnity
XPN: State may be held responsible for an international from the Philippines because of the failure of our authorities
delinquency directly or indirectly imputable to it which causes to protect their nationals.
injury to the national of another State. Liability will attach to
the State where its treatment of the alien falls below the Avoidance of State Responsibility
international standard of justice or where it is remiss in
according him the protection or redress that is warranted by The doctrine of state responsibility is applied more frequently
the circumstances. to tortuous rather than contractual liability because of the
unwillingness of most states to act as “collection agencies”
Q: What are the requisites for the application of “Doctrine for their nationals entering into private agreements with or in
of State Responsibility to Aliens”? foreign countries. Yet, to avoid the intervention of the alien’s
state in contracts of this nature, the local state sometimes
A: incorporates therein what is known as the Calvo Doctrine.
Q: What are the rights of a person arrested and detained in In the absence of any international treaty stipulating to the
another State? contrary, no State is, under international law, obliged to
refuse admission into its territory such fugitive, or in case he
A: has been admitted, to expel him or deliver him up to the
1. Right to have his request complied with by the prosecuting office.
receiving State to so inform the consular post of his
condition NOTE: The Right of asylum is not a right possessed by an alien
2. 2. Right to have his communication addressed to the to demand that a State protect him and grant him asylum. At
consular post forwarded by the receiving State present, it is just a privilege granted by a State to allow an
accordingly alien escaping from the persecution of his country for
3. Right to be informed by the competent authorities political reasons remain and grant him asylum.
of the receiving without delay his rights as
mentioned above Q: Who are refugees?
Q: Is the retroactive application of the extradition treaty A: Any person who is outside the country of his nationality or
amounting to an ex post facto law? the country of his former habitual residence because he has
or had well founded fear of persecution by reason of his race,
A: No. In Wright v. Court of Appeals, G.R. No.113213, August religion, nationality, membership of a political group or
15,1994, it was held that the retroactive application of the political opinion and is unable or, because of such fear, is
Treaty of Extradition does not violate the prohibition against unwilling to avail himself of the protection of the government
ex post facto laws, because the Treaty is neither a piece of of the country of his nationality, or, if he has no nationality,
criminal legislation nor a criminal procedural statute. It to return to the country of his former habitual residence.
merely provided for the extradition of persons wanted for
offenses already committed at the time the treaty was Q: What are the elements before one may be considered as
ratified. a refugee?
Extradition v. Deportation A:
A: It is the first comprehensive catalogue of human rights A: Those liberties, immunities and benefits, which all human
proclaimed by an international organization. beings should be able to claim “as a right of the society in
which they live – Louis Henkin
Q: Is UDHR a treaty?
Q: How are human rights classified?
A: No. It has no obligatory character because it was adopted
by the UN General Assembly as Resolution 217 (III). As a A:
resolution, it is merely recommendatory.
1. Individual rights
Q: What are the 3 generation of rights? 2. Collective rights (right to self‐determination of
people; the permanent sovereignty over natural
A: resources)
FIRST GENERATION a. Civil rights International Covenant on Civil and Political Rights (ICCPR)
b. Political rights
Q: What is the so-called International Covenant on Civil and
Includes: Political Rights (ICCPR)?
1. Colonial domination
INTERNATIONAL HUMANITARIAN LAW (IHL) AND
2. Alien occupation; and
NEUTRALITY 3. Racist regimes when the ‘people’s oppressed by these
regimes are fighting for self‐determination.
Q: What is International Humanitarian Law (IHL)?
NOTE: An attitude of impartiality adopted by third States Q: What are the rights and duties of a neutral State?
towards belligerents and recognized by the belligerents, such
attitude creating rights and duties between the impartial A:
States and the belligerents. 1. Abstain from taking part in the hostilities and from
giving assistance to either belligerent;
Q: What is non‐alignment (Neutralism)? 2. Prevent its territory and other resources from being
used in the conduct of hostilities(Right of territorial
A: This refers to peacetime foreign policies of nations desiring Integrity); and
to remain detached from conflicting interests of other nations 3. Acquiesce in certain restrictions and limitations the
or power groups. belligerents may find necessary to impose.
4. To continue diplomatic relations with other neutral
Q: What is a neutralist policy? states and with the belligerents (Right of diplomatic
communications).
A: It is the policy of the state to remain neutral in future wars.
Non‐alignment is the implementation of neutralism. Rules of Neutrality
A: A:
A: It is a hostile operation by means of which vessels and A: Belligerent warships and aircraft have the right to visit and
aircraft of one belligerent prevent all other vessels, including search neutral merchant vessels on the high seas to
those of neutral States, from entering or leaving the ports or determine whether they are in any way connected with the
coasts of the other belligerent, the purpose being to shut off hostilities.
the place from international commerce and communications
with other States. Unneutral service
A: The liability of the contraband from being captured is Q: What is International Environmental Law (IEL)?
determined not by their ostensible but by their real
destination. A: It is the branch of public international law comprising
"those substantive, procedural and institutional rules which
Doctrine of “Free ships make free goods” have as their primary objective the protection of the
environment," the term environment being understood as
Q: What is the Doctrine of “Free ships make free goods”? encompassing "both the features and the products of the
natural world and those of human civilization.
A: A ship’s nationality determines the status of its cargo.
Thus, enemy goods on a neutral ship, excepting contraband, Principle 21 of the Stockholm Declaration
would not be subject to capture on the high seas.
Q: What is the Stockholm Declaration?
Concept of Visit and Search
A: The Stockholm Declaration, or the Declaration of the
Q: What is the concept of Visit and Search? United Nations Conference on the Human Environment, was