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403 2015-2016
|Selfless Notes| Pre-Finals

I value in international law? So what’s the normative value of domestic laws in

International Law and Municipal Law international law?
A: Domestic law fills the gap when there is no conventional law or CIL in place for a
Which law prevails in case of conflict? particular situation. It forms part of generally accepted principles.
It depends. At least four levels. (check daw past discussion because we prepared daw
for this last time for the midterms) S: Pwede na siya but that is if that’s looking at domestic laws in general, what is the
** possibility that this will be asked. value of a domestic law, what’s the importance of domestic laws in general. And you
Theories: Monism & Dualism can say that the international tribunals can use it as general principles of law and
transpose these domestic principles when, as you, said there’s no clear applicable
Are Domestic laws relevant in international law? customary or conventional international law. But that is in the general sense. But if we
look at specific domestic laws in a situation where we are confronted with the
Sir what do you mean by relevant? How do you interpret relevant in this question? question: “ of these are the laws of state x”, so what is the importance of these now in
If you are talking about whether domestic laws will be upheld at the international relation to international law?
level, I’m sure you have an answer to that. Definitely of course, Domestic laws cannot
prevail over jus cogens norms in so far as treaty obligations are concerned. We have There are actually good reasons to say that domestic laws are relevant still at the
consistent rules in the VCLT and these rules are according to many authors and international level. For one domestic laws can be proof whether a state has complied
scholars partake also of the nature of CIL, I’m talking about Art. 27 of the VCLT and with its international commitment. You know there are conventions that would
Article 46 of the same. require state parties to pass certain legislations, that is an obligation under that
convention. So we want to know whether a state has complied with the mandate of
Art. 27. State party cannot invoke its internal law as justification for noncompliance or the convention which is to pass the necessary legislative measure then, if these laws
non-performance of treaty obligations. are present in State X, so we can say that State X has complied with that mandate
because of these domestic laws. Or in the absence of which,we can say that this state
Under article 46 in regard to the question whether non-compliance with internal rule has not complied with the mandate under the convention.
on competence to conclude treaties whether it can be invoked by a state as a ground
to invalidate its consent. As a rule, it cannot be invoked so the same paradigm in Art. There are several conventions that would require state parties to enact legislative
27 you cannot say that your consent had been invalidated using your own internal measures to implement certain mandates of that convention and I’ve heard someone
rule on competence to conclude treaties had not been observed. Exception is when saying that is also evidence of state practice. Because you know, states are abstract
such internal rule on competence to conclude treaties is manifest and of fundamental entities and states consist of different organs and acts of state are manifested by the
importance. acts of these organs. Of course the act of the President may be attributed to the state,
that is why we have also the principle of unilateral act of the state which may bind a
The word relevant in this question, (not answered because naa pay mag take ug state.
You have encountered the case of Australia vs France, The Nuclear Test Case.
Unilateral declaration of the President is considered binding, when the President
So if we talk whether domestic law will be upheld or will be binding at the promised not to do same nuclear test in the pacific. So it violated its commitment
international level you can easily say that, well, the rules in VCLT suggest that they when France did it again.
don’t. On the other hand, does it suggest that domestic laws do not have normative

|Selfless Notes| Pre-Finals

Acts of the legislative branch will of course be considered acts of that state. So The command theory of John Austin for example. -> legitimacy is based on handed
domestic laws are evidence of state practice. Well that can also be considered opinion down command, an imposed command by the government, by the political authority.
juris because if this norm is manifested by a legislative measure then there is good So there is no way international law becomes part of domestic law unless there is that
reason to say that this norm is really of binding character otherwise it would not have command by the legislature through the issuance of a law transforming international
legislated that particular norm that is also correct. law.

What else? Legislative measures can also be said as related to opinion juris. Transformation however, (asked daw sa bar exam) Strong and weak transformation.
Evidence of a particular state’s position towards certain practices. if we talk about a
persistent objector. So you will notice that this state has been passing these laws Theories: Incorporation & Transformation
contrary to the emerging, supposed CIL. That’s another use of a domestic law. So
there. (Strong and Weak)

Are domestic laws relevant in international law? So you can view it whether it can be When is transformation strong and when is transformation weak? (mugawas daw sa
binding or upheld in the tertiary level or whether there’s a value to the domestic laws bar)
of states?
Transformation may be done in various ways. As I’ve said the correct understanding of
The next question: What about international laws? How do rules in international law transformation here is that international law becomes part of the law of the land by a
take effect in legal systems? As we have already discussed how international law will positive act on the part of the government so when I say government, that means it
be come part of the domestic legal system would depend on the theory the state would depend on the practice of the government on how to transform international
follows or observes. There are states that do observe incorporation theory only and law. And international law may be transformed by executive action, legislative action
there are states that follow transformation theory only and there are states that or by judicial decision. Or it can be done depending on the practice of the state by
follow both and in different ways. simple administrative issuances. That’s why the correct term is by the positive act of
the government.
I think you remember incorporation is but an offshoot of a state’s observance of
monist theory and as you remember your philo of law, monism is largely influenced by Transformation is characterised as strong transformation if under the constitutional
the natural law theory, when we talk about natural law theory we talk about a norm system, or legal system of that state, international law becomes part of the law of the
that is of universal character. So monist believe that there is a universal norm and that land by only one method generally on the basis of practice of states, generally by
is International norm and therefore international law should become part of the legislative act. Meaning if the system of a particular state does not permit
domestic legal system without any requirement of an independent or positive act on transformation of international law by other means, then that means that state is
the part of the government. That should be automatic. following strong transformation. However if that states permits transformation of
international law by other means, not just be legislative action, then that state follows
While in the case of the transformation. This is influenced by the positivist-dualist weak transformation.
thinking that international law becomes part of the domestic system only when
there’s a positive act of the government transforming international law to domestic (bar examiner daw:) In the Phil what is being observed, strong or weak
law. The idea being the law that should govern a particular state should that which transformation of international law?
been handed down by authority.

|Selfless Notes| Pre-Finals

Naa pa nag ingon na diba incorporation ta? Yes, we have that incorporation clause but But question here is the SC is precluded from adopting international law that is not
it doesn’t mean that incorporation precludes observance of transformation because GAPIL? Well, if its a treaty based international law, it will be bound because it has to
we can also observe transformation. apply the law and treaties become part of the land also under our domestic system,
we treat them as part of our statutes. In the Phil therefore there is no clear system or
Of course this becomes relevant under our constitutional system if we talk about rule that says that only congress can transform international law. So that is I think a
principles of international law that do not partake of generally accepted principles of good reason to say that transformation in Phil is following the weak kind of
international law or GAPIL why? Ang GAPIL becomes part of the law of the land by transformation. If you have read your text book on the matter whether Akehurst or
incorporation. So if you talk about international law that are not GAPIL but Shaw, there had been varying discussions in the UK and in other European countries.
international law just the same, and what is an example of this one? So we will talk about the relationship of international and municipal law in our own
legal system. What is the status of PIL in Phil legal system? We have already answered
Treaty based international law. If you are required to perform an act pursuant to a this.
treaty obligation then that duty towards the other party under this treaty is
international law, that is why we call it treaty based international aw. If that principle GAPIL
or law found in that treaty to which the Phil is a party, that is international law
because international law is that law governing the relationship between states. That For GAPIL, they become part of the law of the land by incorporation but purely treaty
treaty is international law between them but treaty based. Assuming of course if that based, they become part of the law of the land by transformation, the moment, the
principle is not GAPIL at the same time. senate concurs with the ratification of the Pres. because treaties will be treated as
statutes. It is important for you to make such distinction between GAPIL and TBIL.
So that treaty based international law becomes part of the law of the land only by
transformation when the senate concurs with the ratification of the President but that Statehood
thinking is true only to treaties under our own evaluation or standard because if the -one of the core subject of PIL. But before we go to the elements of statehood, I
DFA deems that international agreement as a mere executive agreement, then the present a problem to illustrate how important it is to understand these so called
senate will not is not required to concur with the ratification of the President. So elements. What’s the scope, elements of this problem.
meaning, if it is a treaty based international law not GAPIL at the same time, becomes
part of the law of the land by senate’s concurrence of the ratification of the President. Singapuria is a small nation in the south pacific. It has a small thriving economy due to
That is by legislative act. But when we speak of a treaty that term is in general. Our its specialisation in the information technology IT sector, but has no active military.
own understanding of treaty is only applicable for requiring senate’s concurrence as Singapuria’s southern border with its larger neighbouring state, Malisiana, has been
you have already learned, even if you have executive agreement there is still a binding the subject of an ongoing dispute. The disputed region, called Londonia, is resource
effect on this agreement so that is still treat under international law in which case rich and its inhabitants consider themselves to be ethnically and culturally distinct
there is no treaty concurrence but the Phil will still be bound if it is an executive from peoples of neighboring regions.
agreement for example, in that situation it becomes part of the law of the land
because we are still bound by it under our own constitutional system not through Ten years ago, Malisiana dramatically increased its military presence in this disputed
legislative action. Another is our supreme court can easily import international law region. Malaysian claims that it has historical and religious ties to Londonia and that
has part of the law of the land but in may cases this imported international law also the region has always formed part of the Greater Malisiana. In recent years,
partakes of the nature GAPIL. It is usually by incorporation. Malisiana has adopted a policy of encouraging its citizens to migrate to Londonia,
through subsidized housing, assured military protection and tax concession.

|Selfless Notes| Pre-Finals

State sponsored migration ni siya. Familiar? Unsa mani? Wala pa kamo nag read noh?
You read about the background of how the Albanian Muslims in Kosovo had been I’m not really sure that there is a requirement of IL that an inhabitant of a particular
discriminated by the Serbian and Nonmuslim inhabitants. State sponsored migration. territory should consist of the same citizens of that state. I’m not ready to say that for
a territory to form part of the state, it must be inhabited by its own citizen. I don’t
Two of Malisian’s large trading partners have recently recognised Malisiana’s think there is an international law requirement that it should be inhabited by its own
territorial borders to include the disputed region. Singapuria has consistently objected citizens. So even if we assume the worst, its 100% Malisiana people in Londonia, I
to Malisian’s actions on the international stage, maintaining that its southern border cannot confirm that it will bar statehood on the part of Singapuria and with respect of
encompasses Londonia and asserting that its territorial sovereignty is being violated - Londonia.

How the Violated? Because of the military presence of Malisiana. As to territory we have an issue here. What is the issue?
If you claim that you are a state and you have to forward an argument that you have a
Yet Singapuria remains militarily too weak to take any action against Malisiana’s territory one of the concerns is this: what is the effect of the fact that a portion of the
powerful military presence in Londonia. territory is under dispute? It is a disputed territory, will it preclude statehood?

Two questions: Remember the north sea continental shelf cases, it’s one authority which says that
unlike our local government units or our very own parcels of land is really required in
A. Under PIL, what is/are the implications of the disputed border for Singapuria’s international law, you know why its important? Under the Montevideo Criteria, it says
statehood? definite territory so maybe if you don’t read, literally it has to be specific with
technical description with metes and bounds. No it’s not required that the territory
In other words, what elements of Statehood are involved in this case and why are they for purposes of statehood must be accurate.
issues in this case? Under the 1933 Montevideo Criteria.
What is only required under the North Sea Continental Shift cases is sufficient
People as an element of statehood, is this an element in this case? consistency standard. Sufficient consistency standard. It doesn’t need to be 100%.
A: Yes. Look at Israel for example, even if some of its territories are still under dispute, the UN
S: Why is it an issue? had recognised Israel as a state.
A: the people recognised themselves as separate from the Singapurians.
S: Why is here an element that for people to constitute a state they must belong to So in other words the mere fact that a portion of a state’s territory is under dispute,
the same culture? that will not preclude statehood, the important thing is that there is consistency and
A: . . . by that consistency we mean that this state has consistently exercised effective
S: Sandali lang (oooh!) when you say element of control it has nothing to do with control over that territory and this brings me to another case relevant to this
people. The element of control means, to be precise about it the element of effective discussion. We go back to Max Huber’s award in the Island of Palmas case. The
control is relevant to the discussion of territory, so why not say that its not really an general rule is that, if a state claims that this is the territory of that state, it must be
issue here but when we talk about territory, it becomes an issue? able to establish that it has exercised in the words of Max Huber’s, territorial
A: . . . sovereignty over the territory.
S: isn’t this just relevant to whether or not Singapuria has effective control over the
territory? What do we mean by this? Territorial sovereignty?
A: It could be. . . Max Huber, Island of Palmas Case Arbitration.

|Selfless Notes| Pre-Finals

observer state by the UN. So what is the effect of that? It’s important to study the
Spain first discovered the Islands of Palmas so when the Phil was ceded to the United situation of Palestine as well. Still indispose with Israel in certain territories. Gaza and
States, Spain included in its map the island of Palmas. So the US made a tour around the West bank. Examine what’s the status of these entities in international law,
the Phil islands and tried to locate island of Palmas as described by the Treaty of Paris because later on we will try to reconcile, Unsa man jud ni ang question of statehood,
and when US located the islands somewhere in the southern part of Mindanao it was is it a question of fact or is it a question of law? What if in fact, dili siya mag qualify sa
already occupied by some Dutch people and there has already been some sort of legal standards but in fact it is a state because of how it is treated and how it operated
administration exercised by Netherlands on the Island of Palmas and so the US or is statehood a question of law, that if it does not compile with the Montevideo
claimed it was the violation of their sovereignty because it was ceded to us by Spain standards then it is not a state in legal contemplation.
and so Max Huber was confronted by the question:
B. How would PIL’s right to sellf determination apply here?
You have here Spain discovered first the island of Palmas and you have here
Netherlands which did not discover first but exercised sovereignty over the islands of
Palmas. And therefore between discovery by Spain and exercise of territorial
sovereignty by Netherlands Max Huber ruled that discovery alone is not sufficient to
confer right over a discovered territory. It only gives an inchoate title and therefore
discovery should be coupled with effective occupation. On the other hand while the
Netherlands was not the first discoverer it however exercised territorial sovereignty
and in this islands of Palmas case, Max Huber referred to that authority of that state
exercising governmental functions in regard to the territory to the exclusion of all II.
others. So when you say territorial sovereignty, exercise of governmental functions to
the exclusion of all others. And this is probably where Singapuria may encounter a Relevance of concept of the Right to self-determination in statehood discussion. But
problem. first, what do you mean by right to self-determination and how is that related to
statehood discussion.
Has it exercised territorial sovereignty under the threshold pronounced by Max It’s the right of the people to have recognition of their own political.
Huber? Has it exercised governmental function in Londonia to the exclusion of all
others? It has not; precisely Malisiana has exercised control over Londonia to the Is it a question of recognition? What do you mean by they have to be distinguished
exclusion of Singapuria but that Max Huber in 1927. Under modern international law, by others? They should be respected since they have their own political, economic…
there are however variations to the application of effective control. In fact at present and practice their own system.
as we will discuss later on, questions on statehood according to many scholars had
been a battle between looking at statehood as a question of fact or a question of law.
Later on and this is part of your assignment when we meet again, try to evaluate why
this certain “states are treated as states even if through the application of the
standards in the Montevideo on the Rights and Duties of states they can hardly
comply”. I’m talking about the special situations in the cases of Taiwan, Hongkong
Macau, Vatican city and you might want to talk about Palestine because in 2012, while
not recognize as state, not yet, officially, or not yet a member officially but from a
nonmember observer status as an entity, it had been declared as nonmember but

|Selfless Notes| Pre-Finals

Determination of statehood scenarios state, then definitely that is legitimate or legal for all intents and purposes even under
international law.
 Break up of a large state into several states
E.g. USSR, former Yugoslavia and Czechoslovakia in 1990s The only questionable means of secession if it’s
 Secession by a part of a territory
E.g. Kosovo’s declaration of independence from Serbia in 2008 2) done without the consent of the mother state or original state. That’s why it’s
 Foreign control is exercised over the affairs of a state called unilateral secession.
E.g. US’ control over the island of Palau in the Pacific Ocean before 1994
 Merger or Union of States
If the question is: If secession is permitted in international law, then, that question
E.g. Egypt and Syria merged in 1958 from the United Arab Republic. Syria then
seceded from the UAR in 1961 and Egypt renamed itself as Egypt should refer to unilateral secession because that is the questionable mode of
 Claims by constituent units or a union or federation to the attributes of secession. The real question really is:
E.g. Separatist claims in Quebec Is unilateral secession permitted under international law? (Classmate:) Unilateral
 Territorial or non-territorial communities which have special international secession is not permitted. With regards to secession with the consent of the mother
status state, it’s already recognized in the international law. (Sir:) So, all these things that
E.g. Palestine’s “non-member observer state” of UN status in 2012 we’re talking about will have to lead to a discussion on whether a particular territory
separating itself from an original state or territory can become and emerge as a new
What do you understand by secession? To secede is to separate from a mother state. state, because there’s a discussion on whether the question of statehood is a question
of fact or a question of law because if it’s a question of fact, then probably even the
Are you talking about a territory that pre-existed the mother state and that territory illegality of the means or method or process by which that new state has emerged,
had been annexed to that state and now this state wants to separate from the mother will not be too relevant at all in international law because it might be that that state
state? For example, we had been a colony of the Spain, so when we wanted to may exist as a fact and can now exercise the privileges and immunities of a state
separate from Spain that was a case of secession. regardless of the way it had been established. We are looking at a conclusion that
statehood questions therefore, is a question of fact.
What if for example, certain provinces of ARMM wants to proclaim itself separate now
from the Philippines State? Is that also a case of secession? When you talk of Discussion of statehood is not just a question of fact, but it is primarily question of
secession it is separation from a state, whether it’s a pre-existing separate territory law. One of the leading proponents of this is James Crawford: Statehood shouldn’t just
becoming part of another state wanting to separate from it or it is originally a part of be just considered as a mere question, but it should be considered as a question of
that state and it wants to separate from it. law. Precisely there are criteria in the Montevideo Convention on the rights and
duties of States. So when we say that these criteria are not complied with, then that
Does international law permit secession? territory separating from an original state cannot become a legal contemplation of a
state. Although, James Crawford admitted that while it’s a legal question part of it,
Secession can be done in at least 2 ways: however, is factual.

1) with the consent of the state, in which case definitely, if it is done pursuant to the The reason why you’re asked how would public international law to the right of self-
constitutional framework or processes of that state. As we amend for example, our determination applied here is precisely because traditional international law if you
Constitution, recognizing let’s say 8 provinces in ARMM will constitute a separate talk about statehood, you’ll talk about Terra Nullius (nobody’s land) state. Naay

|Selfless Notes| Pre-Finals

migration and then eventually because it’s civilization, these new people discovering a independence. That’s the beginning of the conception of the people’s right to self-
new territory will now begin to learn how to govern itself then eventually there will be determination. How may the UN convince colonizing states which were not defeated
communities etc etc then it will become a state. Modern international law, however, is during the world war, how would you convince them to let go of some colonized
not anymore dealing with that because you cannot anymore think of a place or territories? The international community conceptualized people’s right to self-
territory nowadays, that is Terra Nullius, you have explored every inch in this world. determination. Beginning with the UN Charter, for example, Article 1(2) of UN charter
Terra Nullius is a territory where it is not owned by any state. Modern international mentioned the people’s right to self-determination. Although it did not define what is
law, if we have to talk about statehood, we’ll have to talk about self-determination as the meaning of people’s right to self-determination. If you go to Art 55 of the UN
well, because a lot of modern states had emerged as such normally through Charter, it also mentions of the people’s right to self-determination. Only in the 1960
secession. For example, Statehood scenarios in the breaking up of large states. USSR UN decolonization declaration where the definition of people’s right to self-
for example which resulted to 10-11 states. determination had been made and the people’s right to self-determination consists of
two parts according to this definition: 1) people’s right to self-determination should
The secession of Kosovo, from Serbia in 2008, is another important scenario to enable a group to freely determine its political status and this is where discussion on
consider in determining whether Kosovo became a state after its unilateral declaration statehood becomes relevant; 2) facet of people’s right to self-determination, to freely
of independence. Quebec of course tried but failed to separate from Canada. pursue economic, social and cultural development and precisely because the
international community conceptualized this people’s right to self-determination then
The problem really is if a state or territory of a state and the people living there will emerged also the duty on the part of all states to recognize that part.
attempt to separate from a larger state, it will have to hurdle a customary
international law recognized as a right of the larger state. I’m talking about the CIL of The two international covenants on human rights. The ICCPR (International Covenant
the state’s right to territorial integrity. No less than Art 2(4) of UN Charter prohibits on Civil and Political Rights of 1966) and ICESCR (1966 International Covenant on
intervention. States are precluded from intervening with 1) political independence 2) Economic Social and Cultural Rights). These two international covenants on Human
territorial integrity through the use of force or threat of the use of force. The problem Rights have common Art 1. The same definition was given to people’s right to self-
with secession is that it has to hurdle a right to territorial integrity of that state. determination where; 1) it includes the freedom to determine political status 2)
There’s no question if that state will permit then there is no question about, it can be freedom to pursue economic, social, cultural development.
done through its constitutional process. But what if the mother state refuses? And so
the seceding territory will have to declare unilaterally its independence, usually by After 1966 came the 1970 friendly declaration also enumerating certain rights of
force and usually in violation of the state’s territorial integrity. So the question now is, people’s right to self-determination, the same definition was given.
what is the relevance of right to self-determination in secession. What, if any, will
justify unilateral secession from a parent or mother state, so that if it’s justifiable, But all throughout this history, 1945 UN Charter, 1960 UN GA Resolution 1514,
then that seceding territory can legitimately exist as an independent state. Of course Common Article 1 of the two 1966 international covenants of Human Rights and the
it may be justified under the principle of people’s right to self-determination, but, 1970 declaration UN GA Resolution 2625. All these, however, you noticed, the right to
international law, however, is clear that people’s right to self-determination is better self-determination had been conceptualized in the context of colonial period/
understood in colonial territories. colonized territories. The problem now is, there’s no clear development of people’s
right to self-determination in conventions as applicable to self-governing territories.
In Kosovo and Quebec, there’s a discussion in the right to self-determination as Meaning, those self-governing territories, not colonial territories. For example, the
emerging from colonial context. Several territories have been colonies of powerful Philippines was a colonial territory before, now if a portion of Mindanao for example
states before and because of the call of the UN, as one of its efforts to put an end to will separate from the Philippines, can the people of that portion of the territory, now
world war, these colonizing states whereas to grant this colonized territories’ in a self-governing Philippine state, separate without the consent of the Philippine

|Selfless Notes| Pre-Finals

State? Then comes the question, can it be justified under the principle auspices There is really an argument that statehood is not just a factual concept, but legal as
ofpeople’s right to self-determination? well. So we have to deal with legal criteria for statehood. Scholars have agreed that
the 1933 Montevideo Convention on the Rights and Duties of States provided for the
Settled rules are called Lex Lata rules, people’s right to self-determination under more appropriate listing of the elements of Statehood.
colonial context. But whether we apply the same people’s right to self-determination,
the history of which from colonial territories, whether it can be applied to non-
States vs Governments
colonial territories or self-governing territories. That is now what is characterized by
some authors the Lex Ferenda Rule, the law as it should be. Why the law as it should
be, because the states have not yet agreed, and no one will agree because that would  States consists of government and other elements of state;
be the beginning of more chaos because people will begin to simply separate by government is the agency through which the will of the state is
invoking certain conventions recognizing that the people’s right to self-determination formulated, expressed and carried out
can be invoked as basis for secession even if it’s against the will of the state. It is a very  States, not governments, are the bearers of rights and duties
dangerous convention to agree upon. That is why it’s still an evolving concept whether under international law
it can be a basis for successful secession.  “Doctrine of State Continuity”
 How the State “governs” internally may be relevant in
There’s a merging proposition that unilateral secession may be justified under the
context of people’s right to self-determination, but with the caveat under the decision
recognition of government issues
of the opinion of SC of Canada: Only in the context of racist regime (colonial is
settled), and occupied territories. In other words, you have people’s right to self-
determination as your foundation in invoking legitimate unilateral secession but you First, we have to distinguish between a State and a Government. Government is the
have to add that there must be the presence of racist regime, discrimination and gross agency that runs the State. State has a broader concept, while government refers only
violation of human rights so that it will be justified under this emerging norm to to one of the four elements of Statehood.
separate. That’s how Kosovo justified its unilateral declaration of independence. The
Muslims Albanians in Kosovo had been subjected to state sponsored discrimination by States, not governments, are the bearers of rights and duties under international
the non-Muslim Serbians. Muslim Albanian officials have replaced by Serbians, even in law. Means that it is the State who has the legal personality, regardless of the changes
schools, the Albanian Muslims teachers were replaced. State sponsored migration - States and Governments
gituyo pangadto ang mga Serbians para ma diluted ang number of Muslim Albanians.
-Elements of State:
The official language was also changed. Now, in contrast, the Quebec, wanted to
separate also from Canada. Why? Because Quebec are French speaking people so
1. Permanent population
their culture is assumed unique and separate from all other parts of Canada. What did 2. Defined territory
the SC of Canada say? Have they been 3. Government
subjected to racial discrimination? Has Canadian regime been racist? Was there a 4. Capacity to enter into relations with other states
denial of participation in the political system in Canada. In fact, the Quebec officials
have seat in the national parliament in Canada. Now, Kosovo has been widely (Article 1, 1993 Montevideo Convention on the Rights and Duties of
accepted by the States, Quebec, on the other hand, efforts to separate failed. States)

in the government.

|Selfless Notes| Pre-Finals

(Article 1, 1993 Montevideo Convention on the Rights and Duties of States)

There’s no question of the 4 elements, the people - generation by generation they’re
still people. Territory - not much changes. Maybe you may expand. But in government, We begin with permanent population
because especially in unstable government, many times there will be changes in
government. So, what is the effect of changing governments in a state? Under the “Permanent Population”
doctrine of State Continuity, regardless of changes in governments, state continues to
exist. In other words, even if legitimate government had been overthrown by -How many people are required?
revolutionary government, like rebellion. How will that affect the treaties signed by (Liechtenstein with 34,000 in 1990 and Nauru with 14,000 people in 1999
the state, will it result to termination of these treaties. Because from a democratic became UN Members. Vatican City has about less than 500 citizens and about 800
state, for example, it has now become a communist state because of a change of residents. Other mini states are Micronesia, Tonga, San Marino, Palau, and Monaco)
government? In study of PIL you need to understand that there are different effects in
1) state succession and 2) government succession.
The first concern is: Is there a required number of people for population to be
Can you give an example of state succession? When Philippines was granted considered an element of state: THERE IS NONE. But take note that the requirement
independence from its colonizer, the US. Change in sovereignty is equivalent to state of population says that it must be a permanent population. So the concern is not on
succession. Whereas, if one government is changed by another and it can be done in 2 the number but on whether that population is self-sufficient meaning it is able to
ways, either peacefully by constitutional change or not peacefully through revolution. continue the state. So well of course, the traditional way of maintaining a population
In election, there is no change in government. There is only change in administration, is through the natural way: reproduction. So there had been a discussion before in the
that is the same government. When we say peaceful government is when we revise past .We look at old books of Public International Law as early as the book of Patel (wa
our constitution for example and adopt a new system and work on that system then ko kbaw spelling), the book of Penwick(wa ko kbaw spelling). You know what our
that is a change in government peacefully. Not peaceful means of changing the library is one of the very few books in the Philippines na naa pa collection of PIL
government, typical example is revolution. books.....

III Discussion before, required ba nga ang population kay consist of both genders: male
and female. Because of the issue of capacity to perpetrate the population. Of course
TN: Italic and highlighted: slides wala na na. It’s an old discussion because of how the Vatican City shows us na even
It is important to distinguish between government and state because there might be the population is maintained not in the natural way. Of course, di na natural way ang
some changes only in government but not in state. pagmaintain sa population sa Vatican City. Unsa man na sya? Migration. Magpadala
We go back to the elements of state. ran na sila didto ug catholic priests and officials and they constitute the majority. Of
course, naa pud na na didto gianak but it cannot be mistaken sa Vatican city na if they
States and Governments reach a certain age, they will lose their citizenship in Vatican. They become Italian or
something like that. The major way of enabling the population to perpetrate itself in
-Elements of State: the case of Vatican is through MIGRATION.I am not yet ready to include in the
1. Permanent population discussion on whether the scientific means of maintaining the population is also
2. Defined territory accepted in International law, assuming that there is. Murag wala pa na. Layo pa na na
3. Government discussion . So there is no number or people required.
4. Capacity to enter into relations with other states So in the case of territory

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so one of the islands ceded to the United States by Spain kay kaning Islands of Palmas
down South. Truly it was discovered by Spain pero pag abot sa mga Americans ni turn
“Defined Territory” around ang mga Americans.What a beautiful island: Philippine islands, and naa man
dre islands dre na ang islands of Palmas, so ilaha giadto and only to find out na naa na
 -Island of Palmas Case (Netherlands vs. U.S. Arbitrator Max Huber of PCIJ,1928) flag didto sa dutch and naa na Dutch people entering into some agreements with the
on “Territorial Sovereignty” natives in the islands of Palmas case and there was a some sort of an administration
 See again North Sea Continental Shelf Cases on whether definition of borders is a already. Reklamo ang US: oi ,you cannot do that because we discovered it, so of
requirement: “sufficient consistency,” not “accurate definition;” course it did not reach the ICJ because Netherlands and US agreed to some arbitration
and Max Huber made a very good definition of territorial sovereignty now in the basis
 -Extent of and jurisdiction over Territory: of the concept territorial sovereignty. So, if you talk about Max Huber, that is he’s one
1. Modes of Acquiring Territory of the most notable contributions in PIL defining territorial sovereignty.
2. Law of the Sea (1982 UNCLOS or UNCLOS III)
3. Airspace He defined it as to the right to exercise in a territory, to the exclusion of any other
4. Criminal Jurisdiction, etc.; Extradition state, the functions of a state. So niingon ni Max Huber na true Spain discovered the
islands of Palmas but under PIL, discovery alone will not enable the discovering state
I think I already mentioned last time na the territorial sovereignty concept. Yes? UG to have authority over or jurisdiction over that discovered territory because what is
pangutan un ka sa bar exam: What is territorial sovereignty? In the North Sea required is that discovery should be coupled with effective occupation and this
Continental shelf cases. I already mentioned this. What is required of the territory as effective occupation had been defined through conception of territorial sovereignty to
an element of state is that the territory is sufficiently consistent, meaning it had been mean exercise of some form of administration or exercise of some form of functions
in the words of Shaw for example, undeniably within the effective control of the of the state which the Dutch government fit.
government. Later on the basis of what James Crawford(wa ko kbaw spelling) for
example that in fact the most important element of statehood is government kay in So as between mere discovery and exercise of territorial sovereignty, exercise of
the case of territory embedded in the discussion of territory is the concept of territorial sovereignty prevails. Okay this concept also is important in determining
territorial sovereignty and what do you mean by territorial sovereignty? whether a particular territory can be considered a territory of a state. So defined
territory is related to the effective control test in government and we go to that later
Island of Palmas Case (Netherlands vs. U.S. Arbitrator Max Huber of PCIJ, 1928) on. And of course why is it important for territory to be defined, not really accurately
defined but at least consistently defined. It’s because of the discussion on jurisdiction.
Meaning of “Territorial Sovereignty” Generally, jurisdiction is territorial and later on you will know na naa na sya
-It refers to the right to exercise in a territory, to the exclusion of any other exceptions. There can be extra territorial jurisdiction. Is there a requirement as to the
state, the functions of a state. It must be open and public. Discovery could only exist as area of a state,a territory I mean? There is no requirement
an inchoate title, as a claim to establish sovereignty by effective occupation
Q. How large must the territory be?
What happened to the islands of Palmas case? Have we discussed the facts of the (Monaco has 1.95 sq. km.; The Vatican City has 0.44 sq. km )
You know the Philippines Islands ceded to the United States by Spain under the Treaty Q. What if the territory is purportedly annexed by another state?
of Paris, so the Treaty of Paris described what constituted the Philippine Islands mao (e.g. Kuwait was occupied and annexed by Iraq in 1990)
na sya na naa ginadrawing dha sa Magalonia case(Magaliona or Macariola? Di klaro) ,

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Q. Must Territory be Contiguous? is not sufficient. The government must be able to command obedience. Tan awa gud
na ang classical definition of state as I mentioned last time: A group of persons more
Monaco has less 2 sq. km and Vatican City has less than half sq. Km. Dako pa ang SRP. or less numerous occupying the definite portion of a territory and having an organized
What is the effect of an annexation by another state, forceful annexation of a portion government to which the great number of people have habitual obedience. That fixes
of a territory or of the whole territory. Just like what happened to Kuwait in 1990, a threshold on effective control. So what do you mean by a government that has
when it was forcibly annexed by Iraq. According to international law, this forcible effective control? It has to be able to command obedience. Correct? So it must be
annexation will not be honoured and therefore Kuwait will remain a state and will not able to command obedience. But how to tell if the government is able to command
diminish its status as a state despite the forcible annexation because generally acts in obedience?If force lang? What do you mean by iforce? That is so general. One of the
violation of IL shouldn’t produce legal affects and that prejudice Kuwait in this case. criteria in the index of failing states. Bag o na daw na na term run. What is the new
term term? That used to be failing state index. Yeah,I think fragile state na ang gigamit
Must Territory be Contiguous? No! There is no requirement of contiguity. You have the ana run. Usa sa mga criteria class, so gigraduhan ang mga nations ha kung asa na
case ofUS for example, you have Hawaii and Guam as not forming part of the island of nabelong sa bottom. Oh well, kay failing state index man sya, kung naa ka sa bottom,
US. Kita unta tu ug nidecide pa na na muremain with the US. more ang rule of law. So you will see there at the bottom ang katung mga
Scandinavian state like Sweden, Norway, Finland, mao gyud tu ang mga nag observe
Now. Government? ug rule of law.Meaning, naa gyud ability to command obedience in a way. So when we
have the Maguindanao massacre for example, dako kau ug saka kay failing state index
“Government” man sa Philippines. Natupad gud ang Afghanistan hapit because of the Maguindanao
massacre. Ngano man? Kay hantud karon wala pay solution. So states will be
-“Effective Control Test”: Sovereignty, not legitimacy, required; but mere existence of characterized as failing states if they are unable to as you have said implement, apply
government is not sufficient. or command obedience from people.

-Kinds of control: Internal and External A specific test would be:

1.Kana bang government kay able to pass policies in the form of laws or whatever.
-The case of Palestine (“State of Palestine” as declared in 1988 by PLO) Pwede man dictatorial. Di gud kinhanglan law or legislaton from a legislative body.
Pwede man dictator lang ang mupass ug decrees. Ang question lang is it able to pass
-However, in case of temporary deprivation of effective control, the state does not policies. Second, Is it able implement these policies. Nkacreate ba sila ug agencies that
cease to exist. (eg Congo, Rwanda and Somalia) are able to implement these policies. Bisan on paper lang sya. Third, in case of
violation. Mao ni ang 3 functions of the government dba: legislate, execute and then
As I have said on the basis of what Crawford said. James Crawford is one of the most apply. Naprosecuted ba ang ni violate and naput to completion ba ang judicial process
highly qualified publicists on the matter of statehood along with Antonio Placede. The kay basin kutob lang file ug case but walay ending. Okay . That will also affect the
requirement class is not legitimacy of the government. Why? Territory in relation to ablity of the state to really say command obedience on the people.
government should not be likened to a parcel of land owned by a private individual. It
is not ownership that matters in international law, it is effective control. Precisely, a Let me give you a situation. Let us say in a particular state the 100 provinces. There
government can appear to be a de facto government but it has actual control. That is had been at least 3 contending governments. So murag naa sya civil war in a way.
why it is de facto government. In fact a de jure government maybe on exile but in fact
it will not affect the state as a state. It is still the same state. It is not legitimacy that is Government 1 occupies more that half of the provinces of that state.Government 2
required but it is effective control. Definitely of course, mere existence of government has 30 percent and the remaining 20 percent is government 3. Which government has

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effective control on that particular state? Or is there a government that has effective really is effective control pero unsa meaning ana nya?When is control effective and
control in the first place. So in that situation for example, talking about effective when is it not effective. How much of it sa control na matawag natu na effective. Who
control and if you want to understand this further, I want you to read the experience has an idea?
of the democratic government of Congo. And talking about the democratic
government of Congo that used to be called the democratic of Zairethat had been B: Is it not sir that control over a core territory of a state sir, if it controls.(di gud
under Belgium for many years. Katung Belgium occupied na Congo kay duha man gud mklaro).. In akehurst, as long as the court control a core territory, it can still be
na ka Congo. One is called Republic of Congo, French tu sya na colony. Di na mao inyo considered a state and a country that has...
basahon, although samok sad na.You read the history of the Republic of Congo Sir: pwede na sir kay 60 percent of the government man walay labot capital. Dba?
because everytime nay discussion on effective control test, dha ang illustration Pero si gov 2, 30 percent ra iya naoccupy pero mao na iya capital. Urbanized na center
because in the democratic republic of Congo case, gigrantan sya ug independence in for example or areas. Mao na ingon significant na core territories. SO that is another
1960 sa Belgium. Pareha natu ba. Gigrantan ug independence. Ambot aning mga question given to us. What I am trying to tell you class is this, there is no specific rule
batasan aning mga Congolist, nag ilog sila. Ala independent nta, knhanglan kitay as to when control is effective in fact, international law ani nya class. Kaning effective
hawd. So nay mga factions. So nag ilog ang mga troops, which resulted to Congolist control test, may be interpreted strictly or liberally depending on the situation. One
civil war. Kay nag ilog man ug knsa ,unlike sa atua na case na after gitagaan ta ug proponent of this paradigm or thinking is no less than judge Rosalyn(di maklaro,
independence sa US in 1946, wala man kau strong na factionsna mag ilog. Lahi ang Rosalie ba or Rosalyn) , former judge of the ICJ when se said kanang effective control
experience sa Congo and right away girecognize ang Democratic Republic of Congo as test case to case basis na sya. You cannot have a single threshold on effective control
a separate entity at a time na naa pay civil war. Ngano man?Ang Belgium government test. In fact ingon sya depending on the situation for example she mentioned of one
of course recognized one local government na maoy muhandle sa democratic situation. In a situation where the exercise of governmental control by government of
government of Congo but it was contested by other factions. Ana ba, nastrong gud course is not disputed, then it can be that the threshold on effective control may be
ang composition which resulted to inability of the government to control a significant interpreted liberally, however, if the exercise of governmental power in a particular
portion of the territory and usa ra sa gistudyhan kay on whether or not it was proper territory had been contested, dghan nicontest na di legitimate ang iya pag vote(murag
to recognize the democratic government of Congo at a time na wala maestablish ang bode. Paspas kau iya pagsay) sa territory, judge Higgins proposed that the effective
effective control over the territory of Congo. Dako bya kau na d y kay I went over the control test must be strictly interpreted. Meaning ,more pa ang atu iask to comply
details sa republic of Congo territory. From the problem given is there a government with the effective control test in this situation. Second, another situation, cases of
that is in effective control? Kani nlang dili more than. Aw sge more than. 60 percent of secession . In many case, kuan gud na sya contested. So ug museparate ang portion of
the provinces-Government 1. 30 percent-Government 2. 10 percent-government 3. a territory, mudeclare ug unilateral declaration of independence. All along ginacontest
Knsa?kay ug muingon ka na ang government ang nay effective control test then this man na sa mother state. Higher sad na threshold on effective control ang girequire. So
territory can be a territory of a state,so pwede ni sya maconsider as a territory of a walay answer anang percentage2x lang. Number of territories lang. Depende ug unsa
state? Would you not be asking any questions? Kaning gigunitan sir sa 60 percent of na territory ang gioccupy and unsa iya gihimo ana nga territory. 60 percent hinuon
province, unsay gihimo sa government 1?Nag administer ba sya? Naa ba sya local pero agricultural areas rna sya. Walay administration, way government. 30 percent
assemblies?naa bya syay courts? Naa ba sya mga local officials?(naa ni ans na ug pero naa sya government, naa syay military. Of course,naa sya mayor in a small area. It
girecognize sya. Ana si sir na di daw conclusive. We will talk about effects of is a case to case basis but just remember: IT IS NOT LEGITIMACY, IT IS EFFECTIVE
recognition later daw) CONTROL TEST.
And finally of course you have the capacity to enter into relations with other states:
Is it government 1 na nay effective control? Or would you argue that in this situation “Capacity to enter into relations with other states”
sir no government has an effective control on that territory consisting of 100
provinces and therefore failure of a state because to tell you honestly, the threshold

|Selfless Notes| Pre-Finals

-Article 3, Montevideo Convention: “The political existence of the state is independent states. Okay so limited capacity will not prevent the existence of a state. Never think
of recognition by other states. Even before recognition, the state has the right to that that capacity should be exercised directly para sya ma kacomply sa element of
defend its integrity and independence.” state. In fact James Crawford even abide (obide btaw ako nadunggan, unya wa man
-“Limited Capacity” to enter into international relations does not prevent the existence obide na term). Kaning capacity to enter into relations with other states should not
of a state, like in the cases of “Protectorates,” “Trusteeships,” and “Associated States” be in the first place considered an element of statehood but a consequence of
statehood. Kung state ka you have the capacity rather than just the requirement.
Sometimes referred to as external sovereignty because sovereignty maybe internal or
external. When you say internal sovereignty and with reference to sovereignty as We now go to your assignment. What is the status of international law of the
independence, it means the ability of the government to decide its own policies following and you try to apply the MOntivedio Criteria. Definitely given na ni sya. Sui
without external control, meaning domestic policies without external control. On the generis man ,special status, may problem gud ni sila of complying with the
other hand, external sovereignty or independence means that the government , as I Montevideo criteria. In fact ug akoa bar examiner unya simple kau ang question and
have said, borrowing the analysis of James Crawford, government is the most itest imo knowledge sa Montivideo criteria. Bar exam ha. What is the status of Taiwan
important element here because even in the case of capacity to enter into relations in international law. Ingon ana lang na question.
with other states. Mumatter sad na sa ability sa government. In fact ang territory,
mumatter sad ang ablity sa government kay you read territory along with territorial Entities with Special Status (sue generis status)
sovereignty with Max Huber. Magrely sad na sa government. Same thing here ability
of the state to enter into foreign relations.We have external control That is external -How do regular states and international organizations view the following?
sovereignty as well. And limited capacity in the in cases of associates for example or -Holy See
associated states. You have studied Province of Cotabato vs. Government of the Phil, it -Palestine
is a 2008 case. The Bangsamoro Juridical entity or BJE in relation to the national -Taiwan
government was likened to an association in relation to ____(din a gud maklaro). -Hongkong and Macao
Lisod man gud na ug pangutan on ka sa 1 st Sunday ba. 1st question: What is association
in PIL? Bsan uroy magtuo ka ug freedom of expression na. It is a relationship between Asa ta sugod: Holy See. Pusil BEGINS
associated state and the principal. Did you study this in your Consti 1? In the
relationship of association, usually applicable tung mga territories na under mandate Let us begin with what is the Holy See and what is the problem in complying with the
and trusteeship system, when they would be independent,most of these states would Montevideo Criteria
be unable to conduct its foreign relations more effectively kay complicated man gud
na ang foreign relations sa international relations. Mumatter ana power. So some C: The state here is the Vatican and what is the one that governs is the Holy See.
states are not competent enough to directly exercise their capacity to enter into S: What constitutes the Holy See?
relations with other states and they would be dependent on some more powerful C:The pope and
states to do that function for them.So ila man gud buhaton is that they will enter into S: the pope and the college of cardinals and some other advisers. SO the Holy See is
a treaty whereby the associating state will be represented by a more powerful state in the administrator of the Vatican City. So unsa problema ana?You know first why this is
a international conversation but that should be the form of a treaty. According to an issue, the holy see can enter into treaties and I told you before, the moment the
international law, that would not diminish the fourth element of statehood because pope enters into a treaty may peculiar name na sya. Tawag ana concordat.
what is required is not actual exercise of foreign relations but mere possession of that Agreements gni entered into by the pope with other states and international
capacity. In fact ang correct ani nga interpretation is the mere fact na nkaenter na sya persons.Naa na sya specific term: concordat. SO nahimo ni sya na issue ha. Holy See
into a treaty, that is a mere expression of its capacity to enter into relations with other can enter into treaty. So can Holy see member ug mga conventions?

|Selfless Notes| Pre-Finals

C: I think sir if I am not mistaken, if it is still not recognized by the UN ,it is still a non- member observer state. Di gud sya maconsider as a full pledge member sa UN. What
observer state. is the problem here in the Palestine situation?
S: Because? A; The problem here in the Palestine situation is the mother state ,Israel sir.
C: ...... S: Ngano Israel man ang mother state. Ingon ra ba ang palestenian na lahi ang..
S: okay ra. (gatawag ug lain). What is the problem with the Holy See ngano di ni A: It is complicated sir kay in Palestine . because Israel was the 1 st to have a unilateral
maperfect state under the montivideo standard? (dghan absent. Gasunod sa gitawag declaration of independence sir way back in 1948 as opposed to the state of Palestine
ni sir) which only. Because at that time sir it was chaotic sir in that area because Palestine
A:The Holy See sir is a state , however it is considered as having a sui generis status was used to be under British rule and there had been social and civil actions that the
because first and foremost it a issue on migration on Palestine and they wanted to put up a juris state(wa ko sur sa
S: Wait. Ayaw pud nang. Ako impression sa imo ans kay sir it is not a state but it is juris na term. Di klaro) ,so it was chaotic sir.
considered a state in a way. IT is not a state S: Applying the Montevideo Standard, unsa problema sa Palestine?
A: it is not a state under the Montivideo standard A: .......
S; However it is admitted as having international capcity that is why we call them sui S: does Palestine have a definite territory?
generis entities. Wa ko muingon ug states. Because? A:That is the problem sir because it does not have a definite territory
A.Because, it is able to engage in agreements with other states S: Tawag ani niya kay murag floating government man ning state of Palestine to the
S: Mao na nkaproblema lge kay di sya stae, di sad sya international organization but extent that it does not establish definitiveness in its own territory. Well, it is claiming
nkaact lge sya like a state. In fact the Holy See is enjoying certain privileges and the West Bank and casa( wa ko sure sa term) but it does not, under dispute na sa
immunities. In our own case, theHoly See Rosario case, gigrantan natu ug Israel. So that is the biggest problem of Palestine, its inability to effectively control its
immunity.Diplomatic consular immunity. Gigrantan natu. Because the Holy See has no territories and of course to identify its own territory kay di man na ang giclaim sa
territory. Dba nag administer sya sa Vatican City. It is a non-territorial entity. Kung Palestine. Preha ra ni sa Taiwan. You try to study the history of Palestine but be careful
state ka magrequire ka ug territory. Wa man territory ang holy see. It is an abstract sa imo source. Rashid, you have studied this? Okay let us here from Rashid here. Unsa
entity man. It is a government or administrator of the Vatican City. Kana ang Vatican man problema Palestine.
City ang territorial state. Very small in fact. Vatican City is the territorial state. Holy See R:According to the Palestinian side sir ,they were the original settlers in Palestine and
is the non-territorial entity. You know of course how international relations work . the in fact the Jews were simply ano nag migrate lang sila (S: gkan sa germany) ,since they
more influential and powerful an entity is, the more na sya accorded ug privileges migrated in that specific area and they would be in control, they are driving away the
under international relations. That explains why he Holy see, laliman ka pope na gud original settlers. That is from the Palestinian side because there are always two
na, di ka muaccord ana ug privileges. As a matter of practice, pwede ra given a special versions to every story. That is why this is a very sensitive topic to discuss sir.dba?
status. So you should distinguish Holy See from the Vatican City. The Vatican City is S: Ingon ani man gud na sya ang nahitabo. It is a fact na di na nimo sya maingon na
the territorial state, the Holy See is nonterritorial entity. Definitely, di na makacomply one version ra. You know of course the Jews, this offered discrimination here in
sa Montevideo standards. Germany . The way to solve it .Ang US ang nihelp. Gitransfer ni sila sa now called Israel
kani ilang gioccupy/ ambut ug ngano, mga bryt man gud ning mga jewish people.
What about the case of Palestine? Siguro it is in the culture or it is in the genes pero sila man gud na ang niprogress dha.
A: In the case of Palestine sir, it has a somewhat international personality according to Sila ang gibutang, sila ang nidato. You try to check ug knsa nang mga dagko na
the ____(di mklaro, oslo acourse ako nadungan) that was held in 1988. businessman sa world especially nang naa sa US. It is the jewish people.Ngilngig ni sila
S: Ang problema anang Palestine, of course naa na ang mg accord. Ang problema sa sa business. Sila ang niprogress. Kani mga original settlers sa palestine,according to
Palestine kay kani well, it offer another layer sa problem kay well in 2012, the United them, gihand grabban daw ni sila, they were driven away from their own kuan. Ana ni
Nations elevated the status of Palestine from non-member observer entity to non- sila: naa pa ang state of Palestine, ginailog lang ni. Nya kami wala mi dha kay giexile mi

|Selfless Notes| Pre-Finals

but amoa na nga territory but ___ ning west bank ug tabula rasa but under So, the case of Hongkong and Macao. Unsa problema ani? These are Special
dispute.Asa man ang definite territory. So that is the problem. Effective Control is also administrative regions of the Peoples Republic of China. Ang nakalahi man gud is
relevant kay niclaim bya ka ana Hongkong and Macao had been the territories of other states before. Ang hongkong:
UK. Under a lease treaty, giadminister gud na sa great Britain for pila tu ka years .until
In the case of Taiwan class. Problema aning Taiwan class not because they speak 1997 gibalik sa China but under a condition na iretain ang independence as it was
Chinese. Problem ani kay sila man sad ghatag. China before under nationalist regime before covers business even judicial system tanan except defence and foreign affairs.
na sya . Taiwan under shan kai shek(wa ko sure sa spelling). Nationalist ni sila na Mao na naa sa ila basic law. Ang kana ila constitution ,basic law tawag ana. And they
regime before .Unya kani si mao zedong, communist man ni. Iya ning gitarget ang mga are called Hongkong Special Administrative Region and Macao Special Administrative
peasant. Lain man ni na brand na communism. Political science ka imo gistudyhan ang Region. Ang tawag ana nila sa PRC: One country. Two systems kay well of course di
different kinds of communism nu? Ug anhi ka sa Russian, ang communism ,industrial gud na pwede mastate while hongkong probably enjoys the highest level of autonomy
based na sya na workers. Ug anhi sad ka sa Maoism, mau ji du na communism, that any government can think of higher than kanang mga federal states. Di ghapon
peasant based na sya. It is important in this history because sayon rman gud ibaligya na sya mastate independently becuase of still the control in foreign affairs and effects
sa peasants ang communism. Suwayi gud ninyo ug baligya ug communism didto sa by the PRC.
bukid. Dali ragud kau na mahalin. Especially katung mag victims of abuses. Laliman ka.
What does communism offer? Communal interest of the resources of the state. Tag You need to know this kay basin sa BAR EXAM btaw, it is a legitimate question. What is
iya ta tanan. Wala nag ingon na tag iya ra ka. O dba na halinon na concept. Mau ji the status of? Hongkong, Taiwan in IL... and you answer under the auspices of
du(wa gud ko kbaw sa spelling ani) wa able to grow kanang communism and fought Montivideo standard and isay ug unsa problem ani nila kay capacity to enter into
against the nationalistic regime of shang kai shek(wa ko kbaw sa spelling). Mao na relations into other states. Wala man mingon ang hongkong na state sila ang concern
nagstart ang Chinese civil war. Unya kay peasant based man. Mas dghan man peasant lang kay hongkong and macao kay even member sila under the World Trade
ug farmer sa China at that time. So nalupig ang kay shang kai shek na sundalo. They Organization. Mamember sila ug international organization. Of course with the
moved to Formosa, kanang Taiwan karun. So sila ang naexile in other words. Pero ang blessing of PRC.
problema run sa Taiwan class ky until now, they are still claiming na ang Mainland
China ilaha. Okay? So walay definite territory in a way. Walay effective control in IV
Mainland China. Better isurrender nya. Kbaw ka until now, muingon man na ang FEBRUARY 16, 2016
Taiwan na the Chinese civil war is not yet over. Nicontinue pa na up to this time kay Relevant on the discussion of statehood is the principle termed as “uti possidetis
minaro man. Kay ug muingon sila over. Mangutana man na ug knsa nidaog. O dba? juris”.
Mapildi sila in other words. Mawala ang big chunk of course Mainland China. So What is your understanding with that term? How is it related in the study of
niestablish sila ug government. Tawag ana: republic of China ang sa Taiwan(ROC). Ang statehood?
kanang sa China: Peoples Republic of China (PRC). Ang problema lge sa ROC kay ilaha AgeneralruleofInternationalLaw,it states that theboundaries
lge daw territory ang naa sa Taiwan and the Mainland China. So kanang effective ofcolonialterritories oughtto
control sa ROC over mainland china: Highly questionable. Unsay effective control nga becomeinternationalboundarieswhenthoseterritories
ang in control man, definitely gni ang 100 percent ka yang PRC. Although, interesting attainedindependence unless altered by agreement
ang history sa Taiwan ug sa CHina kay during the Japanese invasion kay nag usa na sila
kadiyot to fight against the Japanese. Pero nibalik napud ug claim ang. At one point DevelopedinSouthAmericainconnectionwiththe
wa man niclaim ang Taiwan pero basically balik nsad sila ug claim sa Mainland China independenceofstates fromSpain and Portugal,it was
whichstatesthat“all memberstates pledgethemselves

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torespect theborders existingontheirachievementof e.x. There was a unilateral declaration of independence by Albanian Muslims
nationalindependence”. in Kosovo, therefore Kosovo declared independence through its parliament
unilaterally. But it could have been after the declaration, Kosovo was unable
The principle of uti possidetis juris presupposes: effectively its territory, it could be that Kosovars would not receive of NATO, UN and
another states, it could be that the unilateral declaration of independence will not
1. That a colonial territory had been granted independence. necessarily result in effective consequence called cessation.
-the moment the colonial territory is granted independence, the state
granting independence and such other state are required/mandated. Obliged Any group can declare independence, the question is there a int’l law prohibiting
under this principle of international law, this may not necessarily be CIL, at that, base from the ICJ OPINION OF KOSOVO:
the very least this is a general principle of int’l law.
- which means that for colonial territories after they have achieved The ICJ declares that “general international law contains no
applicable prohibition of declaration in independence”
independence other states are obliged to respect the boundaries of that
colonial territory.
-that adds up to the definiteness of its territory because its boundary is to be
On the matter of cessation though, the SC of CANADA,
respected by other states.
Opinion of the SC of Canada in re: Secession of Quebec
Although North Sea Continental Shelf Cases, does not require accuracy in the (1998)
definition of its boundary but at least there must be some consistency in its
boundaries. Question:

Does Int’l Law permits cessation? “Is there a right to self-determination under international law
that would give the National Assembly, Legislature, or
- It depends, it is not unilateral cessation because it is under constitutional Government of Quebec the right to effect Quebec’s unilateral
framework, then there is no objection to that. secession from Canada?”
- If it is unilateral cessation,
What is the distinction between unilateral declaration of independence and unilateral
cessation? -Secession is not authorized by the constitution of Canada

Does int’l law prohibit unilateral declaration of independence? -International law does not specifically authorize nor
prohibit unilateral secession
Is there a distinction between unilateral declaration of independence and unilateral
cessation? But states have the implied duty to recognize people’s right to
Cessation- is the effective or material consequence of a unilateral declaration of self determination
-Right to self-determination must be exercised within the

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framework of sovereign states and consistent with territorial with the framework of the sovereign state and consistent with the principle of
integrity of those states (“right to internal self- territorial integrity.
determination”) vs. “right to external self-determination”
(unilateral secession). How can that be achieved?

The greatest obstacle to the right to secede is the fundamental right of every state to What is an example of exercising internal right to sovereignty?
territorial integrity. Which is one of the inherent rights of a state. You want to separate e.x A federal system is an example that fairly address the variance of culture, tradition
that is an incompatible with territorial integrity. and practices.

The right to self-determination encompasses, 2 aspects: Look at the case of Hongkong and Macau, two systems 1 country. Has probably the
1. Free determination of political status. highest form of autonomy granted to a territory of a same state.
- Mag independent state or remain in the colonizing state or annexed by
another state. In our Constitution, we recognized ARMM and the Cordilleras. But only ARMM is
2. Free determination of economic , social and cultural development. established.
This right acknowledge by the SC od CANADA as an erga omnes, the duty to respect it
is erga omnes norm. The SC of CANADA did not foreclose the possibility of the right to unilaterally secede.
e.x. external sovereignty, denied access to governmental processes.
The moment a group of people possesses the right to self-determination, states
should respect the exercise to right of self-determination. Let’s take the case of KOSOVO, used to be part of Serbia, inhabited by a minority
group, the Albanian Muslims, they were discriminated by the government, Serbians
The problem here is unilateral cessation is neither prohibited nor permitted by int’l were asked to go to Kosovo like state-sponsored migration, Albanian muslims holding
law, but the moment unilateral cessation is asserted in the context of right to self- government positions were replaced by Serbians, teachers in public schools, state
determination, will you now say, that there is a unilateral right to secede on the basis universities, privileges denied used to be granted. Medium of instruction change.
of the exercise of right to self-determination? Official language.

If a group of people exercise the right to self-determination an in pursuant thereto,

the group of people who wants to secede unilaterally, can that be a valid justification?
SC of Canada:
-Right to self-determination must be exercised within the
framework of sovereign states and consistent with territorial “The international law right to self-determination
integrity of those states (“right to internal self- only generates, at best, a right to external self-determination
determination”) vs. “right to external self-determination” in situations of former colonies; where a people is
(unilateral secession). oppressed, as for example under foreign military occupation;
or where a definable group is denied meaningful access to
government to pursue their political economic, social, and
Mere invocation of the right to self-determination will not necessarily entitle the
cultural development” (meaning, where the people have
group to unilateral cessation, because the right to self-determination can be exercise
been denied the right to internal self-determination)

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state has the right to defend its integrity and independence to

provide for its conservation and prosperity, and consequently
to organize itself as it sees it fit, to legislate upon its interests,
administer its services, and to define the jurisdiction and
competence of its courts….”

In the case of Kadzic vs. Karadzic

Karadzic was accused of war crimes, genocide and acts of torture. US has ALIEN TORT
n Quebec, were they denied access governmental process? NO… because they had ACT, must be tortious act not criminal. Karadzic was invited by UN in US, when he
Prime Minister from Quebec, members of parliament. arrived, he was served summons.

Quebec could not have a legitimate claim for unilateral cessation. Up to this time, still Karadzic’s defense was why charged torture, Srpska is not a state.
part of Canada.
How is torture committed in int’l law?
What is recognition? It must be state-sponsored.

An acknowledgement of a fact or status and giving it with legal effects or

consequences. Ruling:

Recognition of State 1.”We do not agree that the law of nations, as understood in
the modern era, confines its reach to state action. Instead, we
-Theories on Legal Effects of Recognition of State in hold that certain forms on conduct violate the law of nations
international Law: whether undertaken by those acting under the auspices of a
1. Constitutive – a state is considered as a state if it is state or only as private individuals”
recognized by another state
2. Declaratory – a state can exist independently of recognition 2. “However torture and summary execution-when not
and any recognition is simply a recognition or declaration of a perpetrated in the course of genocide or war crimes-are
fact that it is already a state proscribed by international law only when committed by state
officials or under color of law
Which theory is the better one and is supported by int’l law?
3. “Under international law, a state is an entity that has a
-Article 3 of Montevideo Convention Acknowledges defined population and a permanent population, under the
“Declaratory Theory” to wit: control of its own government and that engages in or has the
capacity to engage in, formal relations with other such
“The political existence of the state is independent of entities
recognition by the other states. Even before recognition, the

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3. “Although the Restatement’s definition of statehood For example : there is an armed group in the territory of state A and the
requires the capacity to engage in relations with other government of state A recognizes this armed group as a party to an armed conflict, so
states, it does not require recognition by other states” this is now governed by the Geneva Convention because there is now an armed
4. The customary international law of human rights , such as The meaning of war international law is technical, you cannot say that just
the proscription of official torture applies to state without because there are armed confrontation that there is already war in armed conflict. It
distinction between recognized and unrecognized states.. It has threshold to call as such because we have to know when the laws of war will be
would be anomalous indeed if non-recognition by the United triggered. International law it is divided into 3 regimes: laws of peace, war neutrality.
States, which typically reflects disfavor with a foreign regime- So the moment there is war or armed conflict another regimes will be applied. Laws
sometimes due to human rights abuse-had the perverse on peace will be set aside and another law will be observed. So what happens when
effect of shielding officials of the unrecognized regime from there is belligerence? Recognize as party to an armed conflict. One of the
liability for those violations of international law norms that consequences ( just so you will know that such exists) will be since you acknowledge
apply only to state actors” that there is armed conflict. You are now governed by the Geneva Convention. For
example of the arrested members of armed group instead of revised penal code, it is
5. “Srpska is alleged to control defined territory, control now under the international criminal law system. Even in crimes of murder it is punish
populations within its power , and to have entered into under war crimes. Not under your revised penal code but under the Rome Statute or
agreements with other governments. It had a president, a the Geneva Convention. So this is one of the consequences.
legislature, and its own currency. These circumstances 4. Recognition of material change of boundaries.
readily appear to satisfy the criteria for state in all aspects of
international law” Recognition of state
There are consequences to such recognition:
1. Full diplomatic relation
2. The right to sue in courts of recognizing state. Except in case of de facto
recognition. There is recognition but not recognizing a state as a legal entity
V but just recognizing as a fact.
3. Recognized state is now entitled to own properties in a recognizing state.
Recognition involves the ability of the state or willing of the state to give weight with
other state. That only involves one of the kinds governed by international law. You are recognized entity but of course subject to the domestic law of the state. In
Recognition in international law is relevant in at least 4 areas. Philippines for example, we don’t allow foreigners to own private lands but pwede
1. Recognition of state – what is the effect of recognition of state of the building.
recognizing state. Such recognition would retroacts to past acts of the states, or even before its
2. Recognition of Government – recognition. This was illustrated to us in the case of Underhill vs. Hernandez. What is
3. Recognition of Belligerence – the so called “the act of state doctrine”?
Underhill v Hernandez
Belligerence – parties to an armed conflict are called belligerent because Facts: There was this revolutionary government in Venezuela headed by Hernandez.
belligerent comes from the word bellum/bello which means war. There are rules on Underhill had constructed waterworks system in Bolivar. There was a demand for
belligerence. What happens when a state recognizes belligerence. repairs and continued operation of the said waterworks, but Underhilll wanted to

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leave Bolivar. However, Hernandez refused to give Underhill a passport. So what

Underhill did was to sue Hernandez for his refusal to issue a passport. At about this Is there a duty to recognize a government? Is state A for example duty bound to
time, the US has not recognized the revolutionary government in Venezuela but recognize another government? Prerogative. Is there such a duty on the other hand
recognized it later on. not to recognize? There is no duty to recognize. Although there are scholars that
argue that to give true meaning to statehood, dapat if legally or objectively therefore
Issue: WON Hernandez’ action in not granting the passport, should be recognized as applying the Montevideo Standards, state na cya then all other states must also
the act of Venezuela. (Therefore recognizing the revolutionary government as forming recognize. But that point of view never reached a level that it be acceptable norm in
part of the State of Venezuela so that the act of that revolutionary government would the international law. But naay nagforward ana na argument. But the settled rule is
be considered as the act of the Sate of Venezuela.) that Recognition remains discretionary, it’s a political question. Specially which
branch? Executive department. Recognition is a foreign affairs question therefore it is
Held: The past act will be considered as the act of Venezuela although at that time an executive function. State may or may not recognize other state or other
when the act was performed, the revolutionary government was not recognized by government. Recognition is not essential in a statehood and there shouldn’t be any
the US. In other words, at the time when the act was performed, there was still no duty. The same is true with recognition of government. But if a state decides to
recognition, but later on there was recognition so the effect is retroactive. recognize the government. What will government/states usually look into? Effective
control of the government (supported by the people / popular support), stability and
It was a de facto government because it was a revolutionary government. Meaning permanence in that territory, legitimacy (acceptability of the government). Basically
you tackle down an existing legitimate or de jure gov. and you replace it on your own. there had been several factors that governments usually consider in deciding whether
The US court was confronted with the problem on whether it would pass judgment on to recognize another government. Traditionally the following had been used by states
the validity of Hernandez conduct pertaining to the refusal to issue passport and in deciding whether to recognize or not.
restriction of liberty. The US did not pass judgment on the validity of that because the 1. Whether there is a government that is in effective control.
cause of action of Underhill was on the basis of those acts. The US court noted at the 2. Is their stability and permanence. Most states are interested whether there is
relevant time that it would decide that the act of Hernandez was a violation of law stability in their territory.
The US court said that since we already recognized then it cannot passed judgment on 3. The willingness to fulfill international obligation or agreement. Capability to
a state which has been recognized by the US because…. follow.
The meaning of act of state doctrine is that state cannot pass judgment on the validity
of official acts of other states. If it is an act of the state, other states cannot pass These are just the traditional thing that they look into. At the end of the day
judgment on the validity of that act. Why? We apply the general principle of law on
governments around the world will always come up with their own policy or approach
co-equality among states ( par en parem non habet imperium). Because states are
and there is no international standard.
sovereign equals no one can exercise jurisdiction or authority over the other.
For example: Philippine courts cannot decide whether X is an Italian, American,
There are doctrines in recognition of government. There are terms depending on the
Canadian or French. It can only determine whether he is a Filipino or not. Because
competent ra atong own court to determine our own law, other laws, we don’t have policy.
the competence to apply other laws. The same manner that we cannot also evaluate
or determine the validity of the acts of other states. That’s Act of State Doctrine, Tobar Doctrine – governments which come into power by extra constitutional means
reason: co-equality among states. should not be recognized, at least until the change had been accepted by the people.

Recognition of Government

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Who is Tobar? He was the foreign minister of Ecuador. Usually kanang magdecide sa Kinahanglan mo recognize lang sya for recognition’s sake. Kung mi deal mi ninyo does
mga policy ung dili ang President himself, sometimes and foreign ministers kay ila not mean na ni affirm mi na valid or legitimate imo government. If wa mi ni deal, does
manang department recognition. is not also saying that illegitimate imo government. Precisely because of the act of
state doctrine
Tobar Doctrine- precludes recognition of a government that had been established by a
revolutionary means until (so dili sya perpetual nonrecognition) the constitutional
reorganization of that territory takes place by free election of representative. So kana
na revolutionary government dili nya erecognized until ma affirm by constitutional VI
means through the ballot, kinahanglan mag election sad.
Recognition is a doctrine adopted by states, which are not laws, but policy by
particular states. Any state can have its own policy. States are not required to
Wilson Doctrine – Wilson (President of the US) this formulation was applied by the
recognize states. It depends on the policy of states since at the end of the day
revolutionary government of Mexico. When Woodrow Wilson adopted such policy for recognition is a political question. More acceptable policy is the Estrada doctrine
the United States they remembered that it was also the policy of Tobar in Ecuador. because it reflects the application of act of state doctrine.
That is why in International Law, usually tawag ana Tobar or Wilson Doctrine because
more or less the same sila na policy. Recognition of belligerency.

Stimson Doctrine – Secretary of the US –not recognizing any situation, treaty or Belligerents by the way are parties to a war or armed conflict. Their recognition is
agreement brought about by non legal means. What are that non legal means? Calling also a political question. They may or may not recognize an armed group as a
all states not to recognized government established by aggression. Example: Japan’s belligerent. Armed conflict or war has a technical meaning in international law. If
lacking in these elements they may not be considered as belligerents but as
insurgents. The mere fact that there are two groups fighting with each other,
regardless of the use of high powered weapons or their number, they may not be
Estrada Doctrine – espouses the ACT of STATE DOCTRINE - dealing or not dealing with
considered as war under international law, at best they may be considered as internal
the government is not a judgment on the legitimacy of the said government. conflict or disturbance as it is called in international humanitarian law. We must
Well accepted doctrine by most authors. distinguish armed conflict and internal disturbance. The legal difference of
If the government was established through political upheaval, A state may belligerence and insurgents is that for the latter international law doesn’t apply.
not issue a declaration giving recognition to such government but may merely accept Acts of insurgents may be attributable to the state while belligerents will not.
whatever government is in effective control without raising the issue of recognition. There are 3 regimes which are the laws of peace, war, and neutrality. The moment
Example: Philippines adopted Estrada Doctrine, then there is new state that emerges there is an armed conflict or war, the laws of peace will have to take a backseat and so
by coup d’ etat. If d ta mo recognize, unsay meaning sa non recognition? Meaning mo the laws of war will now govern particularly under the 4 Geneva conventions and the
ingon ta na illegitimate to na government? Dili noh? Kung mi recognized ta, mi enter additional 3 protocols. If one of the rebels is captured by the regular armed forces,
recognized as belligerents, they may be given rights and privileges as a prisoner of
ta into agreement? Is it recognition of the legitimacy of the government? Dili sad.
war. They have ranks and when they are captured (captured combatants), they are still
Dealing or not dealing with the government is not a judgment on the legitimacy of the treated according to their ranks. A general may still exercise their right as such over
said government. their inferior and the detainers must address him as such as well. Can establish their
own judicial system with the general officiating based on his rank. Exchange of
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prisoners, one of the options of prisoners of war; ordinary prisoner, highly political, -Most likely, the government will evaluate the past acts of the group, whether they
discretion of the government. When you are sick under international law, detainee are willing to observe the laws of war (e.g. beheading)
have access to medical care. Red cross may come in to give such care but under the International communities will never consider ISIS as a belligerent but as a terrorist
laws of peace cannot be compelled to give medical care. group. But if a state would recognize them as a belligerent then for that state they
The moment a group is considered as a belligerent/party to an armed conflict will would be considered as such.
be treated as having its own international personality. The acts of the belligerents Doctrine of State of Continuity
will not be attributed to the regular armed forces or the recognizing government. If The moment a state is established as an international person, the state
they kidnap a foreign national, the recognizing government has no duty to make sure continues to be the same corporate person whatever changes may take in its internal
that the person is safe and secure. Whatever happens to the foreign national, it is not organization. This continuity of the legal personality of the state may withstand even
attributable to the state. the most radical transformations in its constitutions. Thus, temporary absence of
-The moment we welcome foreigners in our territory we have a duty under governmental control (e.g. civil war) will not change statehood.
international law to afford them fair and just treatment and that includes securing Even if we change people, territory, government, nothing happens to the state.
their life and limb. Treaties entered into would still be binding to the state. (e.g. Japan invaded the
Effects of Recognition of Belligerency Philippines, treaties entered into are still binding)
1. Before recognition, the rebels are subject to the municipal laws of the legitimate State Succession
government and responsibility attached to the government for any damage the rebels Where there is a change in legal personality of a state, state succession
may cause third parties occurs. This involves substitution of new sovereign over a territory. This happens in
-We then can apply the revised penal code for the acts committed. No international cases of cession, annexation, merger, consolidation and decolonization. It will have
crime committed. legal effects in treaty and international obligations of the predecessor state.
2. After recognition, the belligerent community is treated as an “international person” Modes of state succession: to cede territory, dissolution of bigger states,
for purposes of the conflict and will be governed by the “laws of war” in its dealings annexation, merger, consolidation, and decolonization. (e.g. Spain ceded the
with the government; the latter will not be held liable for any damage the rebels may Philippines to the United States of America, Dissolution of the Union of Soviet Socialist
cause third states; third states must observe neutrality. Republics)
-They will now be liable governed under the laws of war. They may be charged with Change of sovereignty - change in political authority wielding the power or exercising
war crimes. If cannot be charged here, they may be charged in the international the power.
criminal court. Clean Slate Doctrine/Tabula Rasa
-Recognizing a party to an armed conflict is a violation of non-intervention if done by A successor state is free from assuming or not therefore obliged to assume
another state. It may so happen that third states may recognize but the state may the obligations entered into by the predecessor state. But that is not to say that no
resist that. That would be considered as premature recognition. obligations will ever be assumed by the successor state since the latter may opt to
Elements of “Belligerency” for purposes of recognition: assume. If successor state may opt to assume they may still make reservations as to
1. Organized civil government supported by majority of the inhabitants in the the treaties that were entered.
territory, Clean Slate Doctrine does not apply to a mere government succession. (This coming
2. Occupation of substantial portion of territory, election, there is merely a change in administration, not government)
3. Conflict between legitimate government and the belligerents is serious and There are at least 2 ways to change government: a.) peaceful means – constitutional
outcome is uncertain, change and b.) non-peaceful means – establishment of revolutionary government.
4. Belligerents are willing and able to observe laws of war (very important) (Establishment of revolutionary government is overthrowing the legitimate
government without undergoing constitutional change.)

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Effects of State Succession – optional to assume obligations document of international organizations therefore is a treaty. For this reason,
1. Transfer of allegiance of inhabitants only states are members of international organizations (Bernas)
2. Political laws, automatically abrogated; non-political laws, deemed continued unless Status in International Law of this Other Subjects
repealed by a positive act or inconsistent with domestic laws of new sovereign. -International orgs, Individuals and corporations of course they are non-state
(Political laws: citizenship laws, criminal law, admin law, law on public officers, public actors but non state actors nonetheless are still actors in international law
international law) that’s why we say non state actors so they matter in international law
-political laws are automatically abrogated because when there is a change in -For example international organization normally membership ana nila mga
sovereignty, there is a change in relationship between the state and in the inhabitants. states WTO, NATO, of course the United Nation is an international
When there is a new sovereign, there is a new relationship. organization and many others including the different organs of the United
3. Public property, acquired; torts liability, not acquired; new sovereign has option to nation, World Health Organization etc.
assume liability -Unsay cotemplation nila? They are non state actors but they contribute in
4. Treaties of predecessor state not binding on new sovereign except those dealing international law. For one, especially with respect to your supreme
with local rights and affecting boundaries. international organization UN, you know that UN has international legal
Effects of Government Succession personality.
1. All rights of predecessor government are inherited by the new government
2. If change is by peaceful means, new government inherits all obligations
3. If change is by violent/non-peaceful means, new government has the option to Are Individuals Object or Subject?
reject political and personal obligations, but not those arising out of regular -Individuals yes they are objects of international law but because there are
administration of government. emerging norms conferring rights to individuals they become subjects to that
-Obligations that are political (e.g. obligations incurred to fight the revolutionaries) extent. I’m talking about minorities, rebels, insurgents, National Liberation
-Personal Obligations: money not used for public purpose, pocketed public funds Movements; they are entitled to certain rights under international law
instead of using it for people’s benefit.
-President Cory Aquino had the option to tell the US Senate not to assume the Corporations, International Orgs., NGOs
obligations of Dictator Marcos unless it could be proven that these obligations - Corporations may also have interest in the development of international
redounded to benefit of the people. However there are trade-offs. You would be law because of globalization. They also interact with states
subjected by conditions from the IMF - International Organizations can help also in the development of
international law there are international organizations that are experts in
VII certain areas like the International Red Cross
- NGOs are different. They are not established by states like Green Peace and
Other Subjects of International Law Amnesty International that’s non-governmental organizations but operating
International organizations, Insurgents, Liberation movements, and, in a more at the international level. Unsay significance nila? Normally they contribute
limited way, individuals (Bernas) in international law through their expertise. So kanang International
Humanitarian Law for example ang number one source natu of authorities
International Organization ana ang International Red Cross. What constitutes a violation of the duty to
-An international organization is an organization that is set up by treaty protect civilians in times of armed conflict.. naa na silay study that the court
among two or more states. It is different from non-governmental can use when there are cases that are brought before the court.
organizations (NGO) which are set up by private persons. The constituent

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Individuals, object or subject? - But as to criminal Jurisdiction you need to understand the different
- For individuals, generally object and therefore this will require espousal of principles or theories on Criminal Jurisdiction
claim process. And if they have been injured, States can resort to Diplomatic
Protection Theories on Criminal Jurisdiction
1. Territorial Principle
Jurisdiction 2. Nationality Principle
-other term AUTHORITY 3. Universality Principle
- Is Jurisdiction limited to the territory of the state? NO. So you are saying 4. Protective Principle
that there are instances where we extend or that a state’s authority may be
extended in the territory of another? When is that possible? -These are theories or principles and therefore this are not laws. These are
Example of Extra-territorial exercise of Jurisdiction just methods of justifying the exercise of criminal jurisdiction. So your goals is
-Si Pacquiao earning income abroad but Resident kay mudagan lage pagka to analyze cases illustrating each of this principles so you know that one
Senador, is a Filipino Resident. So Filipino Citizens who are residents, they are principle can be justified under a particular condition and that one principle
liable to pay income tax for income earned within or without. So for cannot be applied to a particular condition
purposes of application of law pwede diay na atung law legislation ma apply
extra-territorially. We call this Jurisdiction to Prescribe Law. -We will be studying the practice of States and since we cannot study all
practices of states, I think this is understandable that we need to study the
-do not think that jurisdiction simply refers to the authority of the court practices of the United States because scholars have agreed, if you talk about
because that’s just only one of the various forms of jurisdiction. It’s called extra territorial jurisdiction, criminal jurisdiction naa may uban nga
Jurisdiction to Adjudicate. That the jurisdiction/authority of the court to aggressive mu exercise ug criminal jurisdiction abroad United States kita dili
decide a controversy kay ta ana class.. talawan kay ta. We don’t declare or probably we are afraid
-Now in relation to Criminal Jurisdiction, you know that generally to declare and announce worldwide that we can assert criminal jurisdiction
Jurisdiction of a Court in Criminal Cases is limited to the territory of the state. on offenses committed against Filipinos abroad but US nag declare na ana.
Although there are cases where or instances where court will still have Offenses against Americans pwede sila maka exercise ug criminal jurisdiction
jurisdiction even for offenses committed outside the territory for good as you will see later on. Well in the international relation mu matter man gud
reasons kinsay powerful kinsay di
-This are theories only this are not laws nga mao gyud na siya nga limited to
3 Kinds of Jurisdiction one ang State. A state may apply one in favour of another and this is another
1. Jurisdiction to Prescribe Law important thing BTW, the reason why courts can adopt one and it will be
2. Jurisdiction to Adjudicate considered as having authority to do so… So it is permitted to exercise
3. Jurisdiction to Enforce criminal jurisdiction because it is very difficult to point out a specific
conventional or CIL prohibiting the adoption of one theory in a particular
-Jurisdiction to Prescribe law is to prescribe a particular conduct to a person situation and applying the Lotus Case and the Advisory Opinion of the ICJ on
or activity even outside of the territory. You have Jurisdiction to Adjudicate the Legality of the Threat or Use of Nuclear Weapons, what did we learn
and then you have Jurisdiction to Enforce with the implementation of a there? Restriction to Sovereignty is never presumed. It is only when there is
particular legislation maybe done outside the territory of a state so that’s clear conventional or CIL that a State is restricted from exercising its
jurisdiction to enforce sovereignty in a particular way. And the exercise jurisdiction is a
manifestation of a State’s sovereignty. The idea is, let say in a given case mu
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ingun ang local court let’s say ang US Court mu ingun siya nga this court has
jurisdiction on the basis of passive nationality principle. Next Question: is the
court permitted to do that? Acquiring Jurisdiction over the case on the basis
of passive nationality principle? That can be resolve by looking at whether “Someone in Canada fires a gun and hits a person in the US, If Canada would
international law, both conventional or customary, prohibits the exercise prosecute .. siguro sa bar exam, more or less ingun ani pagka frame.. pangutan-on
Nationality Principle. And you will see that there is none mao na nga ka if Canada will exercise Jurisdiction, How may Canada justify the exercise of
permitted siya. Are you ff? We are dealing here again of sovereign states. jurisdiction? Sunod.. If US will exercise jurisdiction how may the US exercise
Restriction to such sovereignty is never presumed jurisdiction? Mao nana ang gamit sa mga principles. So these are the tools in
justifying exercise of jurisdiction.
Territorial Jurisdiction
Kinds of Territorial Jurisdiction -So Canada can prosecute under the Subjective Territorial Principle because
1. Subjective it was commenced in the territory of Canada.
-US can also justify its jurisdiction if it insists, on the ground of Objective
2. Objective
Territoriality Principle. It was commenced in Canada but it was consummated
Subjective Territorial Principle in the US
-jurisdiction to prosecute or punish would include crimes
commenced within the territory of the state but completed or consummated US vs Vasquez- Velasco
in the territory of another - Kani si Vasquez Velasco member of a drug cartel in Guadalajara, Mexico. He
Objective Territorial Principle murdered two American citizens who were not related to the US Government. John
-opposite Walker an American citizen, novelist, residing in Mexico. Alberto Radelat, a
-commenced in the territory of another consummated in your photographer and resident in Mexico. When asked for the motive of killing them,
territory Vasquez- Velasco apparently thought that this two were working for the DEA or Drug
-is usually applied to cases where offenses are consummated or Enforcement Agency of the US. Karun he was charged in the US but of course
completed within the territory of the state exercising jurisdiction or not Vasquez-Velasco argued “this cannot be done the crime was committed in Mexico. So
necessarily consummated or completed in the territory of the state exercising under the territoriality principle only Mexican courts can have jurisdiction, not the
jurisdiction but producing gravely harmful consequences to the social or US”.
economic order inside the territory. Mao na ang usual understanding and - What did the US court say? Extra-territorial application of a penal statute to
caveat the second part is actively practiced by the US. the murder of a US Citizen mistaken for a federal agent is consistent with the
-Some jurisdictions limited only to offenses consummated or principles of international law. Ang buot pasabot niya gud is not prohibited by
completed within their territory.. kita na.. producing gravely harmful International Law. International Law generally permits the exercise of extra-territorial
consequences meaning not consummated or completed really in the jurisdiction under the Objective Territorial Principle.
territory of the state exercising jurisdiction but there are harmful Why Objective Principle?
consequences that may (defer? Di maklaru).ang US ang number one ana.. - Nganu man tu class nga na objective territorial principle man tu?
kita wala.. we’re not actively..but we are not prohibited also to do that. Commenced in Mexico, consummated diay in the US? Ah.. Mao na tu ang ika duha, as
- Naa man guy crimes class nga ang elements present in one state I’ve said US noh. It will produce gravely harmful consequences to the social or
the other elements is present in the other. Textbook Example of this situation economic order inside the territory. It was justified also further nga kuan man gud
for purposes of illustration and I will not change this every year.. while the victims were not actually members of the DEA the motive of the murder or

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the killing was directed against a government agency ang DEA. It was therefore trust laws mu affects sa mga US insurance firms. So ma affected ang economic interest
directed against the US interest. The US interest being cracking down of drug cartels of the US. Allowed where a person subject to regulation by two states can comply
and syndicates. Tan-awa ra gud ang thinking common law kaayo noh? Sa atu I don’t with the laws …. The Sherman Act applies to foreign conduct that was meant to
think that will hold water. Ing-ana nga thinking kay ang imung motive bisag ang victim produce and does in fact produce some substantial effect in the US. Kanang Sherman
dili connected sa government pero the motive was you thought nga DEA siya and you Act Anti-Trust Law man na sa US.kung mu decide gani ka ug business practice nga will
were therefore attacking our policy of cracking down drug cartels and syndicates so prejudice the or will defraud in a way their stakeholders pwede man sa Sherman Act.
that was therefore an offense against American interest. Ingun ana ang mga Pwede. Tan-awa class.. Pagka bold and aggressive stand sa US when it comes to
amerikano mu think class. That which prejudices or compromises American interest exercising jurisdiction.
general pa gyud American interest..mao na ang naka butang sa ilang restatement. ANY
interest -So even state economic interest pwede

Protective Principle in Vasquez Case VII

- Under protective principle also diba. Protective Principle under which
jurisdiction is asserted over foreigners for an act committed outside the US
but may IMPINGED on territorial security, or political independence of the Immunity from Jurisdiction
-Territorial Security because gi justify man sad pud na sa US. Mexico was the  Sovereign or State immunity (cf. 2004 UN Convention on
leading supplier of drugs in the US . Mexico is just down south. If you go to Jurisdictional Immunities of States and their Property {UN Doc
the southern parts of the US like Miami, Florida daghan mga latin Americans A/Res/59/38})
dinha duol raman sa Mexico. The crime was therefore directed against the o Doctrine of Qualified Immunity {immunity in acts “jure
United States imperiii”, not “jure gestionis”)
- Restatement 402. A state has jurisdiction to prescribe the law with respect o The Act of State Doctrine (judicial deference)
to: x x x (3) certain conduct outside its territory by persons not its nationals  Diplomatic Immunity
that is directed against the security of the state or against a limited class of o Immunity from jurisdiction of courts
other state interest. o Other privileges and immunities
 Consular Immunity
-Unsa kaha ni mga other state interest? The interest or function to combat
 Immunities of international Organizations
drug cartel. Mao na ang gi illustrate sa Vasquez-Velasco Case.
 Waiver of Immunity
Hartford Insurance Co. vs California
-Unsa na interest ang na compromise na affected? Economic Business If you can remember we’ve talking about the concept of sovereignty and you might
Interest. Kay naay Insurance companies sa US niya naa man puy magpa insure nga want to ask why are we talking about jurisdiction after we’re talking about the
magpa RE-insure in London. For one reason or another, mura man ug alkansi ang mga elements of statehood. It’s important to talk about jurisdiction, because as I’ve said
insurance company sa US sa particular practice of re-insurers in London. Mas ma jurisdiction is the manifestation of sovereignty. If you’re a sovereignty state, then you
alkansi man nuon sila..mura man sila na nuon ang ma hold liable or mas taas ang risk can exercise of jurisdiction. You have jurisdiction over your territory, the state has
or exposure. There in London murag ilang practice of re-insurance is prejudicial to jurisdiction of its own inhabitants, it has jurisdiction over all activities and acts usually
insurance companies in the US. Kana nga practice or monopoly or violation of its anti- within the territory. Even this different methods of exercising jurisdiction, they can be

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exercised extraterritorially but subject to the presence of genuine connection. Part of We have a different paradigm in international law when it comes to state immunity
the concept of sovereignty is the understanding that each state is co-equal, so we from suit and state immunity from suit in our domestic law. When you say state
have this principle of par inparem non habet imperiium (that all states are sovereign immunity from suit in our domestic law we have to check our specific statues on the
equals and cannot assert jurisdiction over one another). Because states are co-equal, manner before we apply the principle of state immunity from suit. As I’ve said state
no states can exercise jurisdiction over the other in the territory of that state. This is immunity from suit may contemplate of a situation where a citizen or any individual
where the jurisdiction comes in. for that matter files a suit against the state in the court that state. And so state
immunity from suit will apply. But what kind of suit may or not may cluster, we have
In this discussion, we’ll be talking about 4 important areas of concern in immunity to consult the domestic legal system of that state. There’s no uniform practice, though
from jurisdiction. This is another manifestation of the observance of states of the there may be some areas where most states would agree but not perfectly agreed
principle of co-equality. When we talk about 1) state immunity from suit, this is not upon, or unanimously agreed upon by states. For example, in our case, our state
unknown to you. Then, we have 2) immunity of head of state and immunity of former immunity from suit is limited only to suits where it will involve an obligation on the
head of state, immunity of foreign ministers and then the 3) immunity of diplomats part of our government to satisfy the judgment of that suit, assuming the plaintiff
and consuls and 4) immunities of international organization. wins, when the judgment will compel the government to either pay in the form of
damages, so monetary claim or pay public property. if you file a suit against the
Immunity from jurisdiction may be applied either through the application of government, and your suit is to ask for monetary claims, so that is a state immunity
customary international law or the application of treaty based international law from suit discussion because if you win you will be paid so that the government will
because you know states can enter into treaties when they tend to confer special be required to pay you funds or public property. Like a case is filed in order to recover
regime on immunities to certain individuals. Let’s say, state A and state B will enter a property held by the state. Because our principle here is that no public property or
into a treaty, whereby a particular office which is not public in character, but agreed fund shall be taken out of the public treasury without an appropriation act or law. It’s
upon by states, that that office, its premises and the people operating or manning not the court or judge who will order the taking of the public fund or property from
that office will be immune from the jurisdiction of the host state. So, the immunity the national treasury - only congress.
there is treaty based, because these are not diplomats, not heads of state, not foreign
ministers nor are they consuls, but they are nonetheless given immunities and Another domestic law on the matter is that, if the basis of the claim is contract, we say
privileges because of special agreement between the states. We’re talking about that the state has descended to the level of a private individual and so the state can
immunities and privileges that are usually customary international law in character be sued ex contractu. But we require exhaustion of administrative remedies, this
and as can be gleamed in the convention on diplomatic and consular relations. means you cannot go to court right away. You go to COA first, within 60 days, it
refuses your claim, you now have proof it denied your claim, now you go to court. But
This convention on jurisdictional immunities is not the first of its kind that had been in IL, it is not the case, where a state descends to the level of a private individual when
enforce to some source of codified international law on the matter. In fact, even as it enters into a contract. In IL, we apply of doctrine of qualified immunity. This
early as 1950s, they had already a convention on jurisdictional immunities but the contemplates a suit filed by a person in the court of another and impleading a foreign
rules kept on evolving and many states couldn’t agree on what will be placed in the state. Under this doctrine, we distinguish jure imperii and jure gestioni. The problem
convention until 2004. So in this UN Convention on jurisdictional immunities of states here is, this is CIL, the corollary principle of distinguishing function as jure imperii and
and their property you will note that codified there is the CIL of the doctrine of jure gestioni is also CIL. State immunity from suit is CIL, and when we distinguish
qualified immunity. The immunity of a state is not anymore absolute. The doctrine of public and private act is also CIL. What is not CIL is the test or methods of determining
state immunity applies only to acts performed by that state in its governmental or the function as private or public. So when we enter into a contract we distinguish
public or political function. If it’s otherwise, and there’s no other function opposite to whether public or private.
it, but commercial or proprietary then the doctrine of state immunity will not apply.

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Ex. Naa contract of selling or buying cement, kung ang government of Nigeria ni
contract of private company for the purchase of cement, private or public? The tests Jones vs minister of interior of Saudi Arabia
are the nature and/or purpose test. Remember, state immunity from suit, Certain British national were tortured in Saudi, perpetrated by government officials,
contemplates of a situation where a domestic court is being asked to apply state police. A damage suit was filed. The question is, even if it is torture, unlike in the
immunity from suit principle. Mo vary ni sya kung asa nga state/court pending a case. Pinochet case, state immunity will still be applied.
If the court for example, is asked to dismiss a case on the ground that a defendant
state cannot be sued without its consent, even if this involves a contrat, coz the Pinochet case
contract is governmental. If this is in the US for example, based on observation, the US Pinochet tortured some Spaniards in Chile, after the end of his term, while on a
would apply on the nature test. It is not the purpose that would governs the character medical treatment on UK, Spain asked UK to extradite Pinochet for acts of torture he
of the function involved, but it is whether the nature of this transaction can be committed in Chile. The arrest warrant was questioned on the ground that Pinochet
undertaken of a private individual entity. If it can be done by an private individual, the was immune from suit, being a former head of state.
character of the contract is private. For example, purchase and sale of cement, can
that be done by a private individual? Yes, so the character of the transaction involves Rule on immunity of head of state:
the proprietary transaction of the state. If in other states, it will uphold the purpose  Immunity of a current head of state is absolute
test, the purpose of the contract governs. Balik ta sa example nga cement, if the Cannot be sued in his personal capacity. But can be sued in his official capacity, in the
purpose of the purchase of a naval base, or government infrastructure, so public siya. sense that the issue of the case is whether or not the act of the government is
Otherwise it will be used in reclamation, or in business, it is private. questionable under the constitutional system. EX Pinoy implemented a law that is
unconstitutional, you file a case for certiorari, mandamus, you implead the president.
The only CIL here is we distinguish jure gestioni and jure imperii, but whether we That is not suing the president as a person, but you are suing his office.
distinguish the character of the transaction through the nature or purpose test, that is  Immunity of a former head, of state we distinguish
not anymore CIL. Some scholars submit, preferred ang nature test, pero that is not to o Acts that were done in his official capacity – immune
say that the purpose is totally irrelevant. When the nature is not so clear if whether it o Acts that were not related to his function – not immune(after na sa
is public or private, we will use the purpose test. So the court can use both. So that iya term)
would depend on the court.
That thinking is governed by two regimes. During the incumbency of the head of
In the Philippines, we are not conscious of what we are using and is not consistent. state, we apply the immunity rationae personae. Immunity enjoyed by the president
Especially nga mag usab2x ang SC. At least, we are guided by some cases decided by as a person. After his term ends, we apply the regime immunity rationae materea. We
SC. don’t look at the person, we look at the function. If the function is official, immunity
continues. If not official, no immunity.
Jure Imperii examples:
 lease on apartment building for use of military officers(purpose test) Pinochet - he is a former head of state. He is only enjoying immunity rationae
 The conduct of public bidding for repair for a warp for a US Naval materea. The act involve was torture. Their argument was, torture was official,
Station(both nature and purpose) (US vs Guinto*dili sure) because it is state sponsored, coz we cannot call it torture if not conduct of state
 Change of employment status of military base employees officers.
Jure Gestiones examples: Ruling: even though torture was to be performed by state official, the prohibition
 Hiring of cook in the recreational center (nature and purpose) against torture is erga omnes. You should prohibit torture in your domestic legal
 Bidding of the operation of barbershop in the clark airbase (purpose) system is jus cogens. And therefore this character of jus cogens norm would prevail

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over invocation of head of state immunity. The violation overrides the immunity This discussion of immunity of head of government, the recognition of the person
afforded to a former head of state in the criminal proceeding in the domestic court involve whether he is the head of state or not is a political question where the suit is
Difference between jones and Pinochet
Jones – case filed was for damages, thus civil. Immunity of suit was upheld coz it was US vs Noriega
civil case
Pinochet - torture. Immunity was not upheld coz violation of jus cogens norm Case was filed in US. We want to know whether Noriega can invoke immunity of head
of state. The issue will be decided by the US court. It is important for the court to
Saudi Arabia vs nelson know whether their government has recognized Noriega as the head of state of
panama. In this case, dili sya ang girecognize ni George Bush. When the court decides
Nelson was assigned in a hospital in Saudi. Reklamo sya he found out nga kulang sa whether to grant immunity of head of state, studihan sa court ang past acts of the
facilities and substandard security. Gusto siya mag whistle blower. Kidnapped and gi government. If on the basis on the past acts of that government, gi recognize siya as
torture. A case was filed in the court of US and the issue was WON bla bla bla, liable head of state, so grantan siya immunity.
for the failure of the hospital to warn him of being tortured on the job hazard. Wala
niya gikiha for the act of being tortured but for failure on the part of the hospital to Caveat: do not apply head of state immunity discourse if the court is not a court of
inform him on their culture. any other state. These things we discussed is because of the principle of par in parem
non habet imperium. Therefore, if a head of state is to be prosecuted in an
Ruling: there was an argument whether state immunity from suit will apply. But the international court immunity of head of state is irrelevant discussion.
court used the nature test. The conduct was not commercial as the powers allegedly
abused were those of the police and penal officers which are powers no private Immunity of former Head of State in Criminal Proceedings
person has and are not commercial in nature and that the nature of the conduct of
the suit was torture. And that is not something that people engaged in trade or The Pinochet Case (2001):
commerce. Torture by nature, is not proprietary. The US did not continue to the merit
of the case because of that obstacle. Remember the suit was not for torture for The house of lord of UK ruled that “the absolute prohibition of torture, a jus
violation for jus cogens but it was a civil case. TL Note: WTF RULING!!! cogens norm, overrides immunity afforded to a former Head of State in criminal
proceedings. The Commission of a crime against humanity and jus cogens cannot be
another case which involved naval vessels done in an official capacity on behalf of a state. “
Principle: the commercial character of a transaction shall be determined by the
nature of the course of conduct rather than by with reference with its purpose. It has Distinction must, however be made between
to be something a private party would do in trade or commerce. Since it was a naval
operation, no private individual can exercise the function of a navy so it was Domestic Jurisdiction over Head of State vs. Jurisdiction of International Criminal
governmental. Court for International Crimes.

See: DRC vs Belgium [Arrest Warrant Case, 2002]

Act of State Doctrine
After the break

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Courts generally will not pass judgment on the validity of the public and official acts of -Inviolability extends (a) even in cases of armed conflict [Art 45], (b) to
a foreign government within its own territory. archives and documents of the mission [Art. 45], (c) and to the ambassador’s
residence, appers and correspondence [Art. 30]
Rationale for the Act of State Doctrine:
Q: Is this “inviolability” absolute?
-Co-equality among states; respect for sovereignty of foreign states.
The duty to refrain from entering the premises is absolute.
Inviolability of Premises of Foreign Diplomatic Mission
It is only when there is express consent from head of the mission.
The premises of a foreign diplomatic mission are inviolable and no person,
even a member of the government of the receiving state, may enter the premises Theories on why premises should be inviolable
without the authority of the mission. The receiving state has in fact the duty to
protect themission against intrusion or damage and to prevent disturbances of the Representational theory - they are considered extension of the territory of the
peace of the mission or impairment of its dignity. (See Art. 22 of the Vienna sending state. Under this theory embassies are immune from processes bec they are
Convention on Diplomatic Relations [VCDR]) representatives from the sending state. You remember the lotus case france vs turkey.
Exercise of jurisdiction on board the SS Lotus. Collision case in the high seas. The court
Legal Status of Embassies and Consulates applied the objective territoriality principle since the crew members died on board
the SS Lotus a Turkish steamship. Turkey considered the steamship as an extension of
Basic Rule: Inviolability of Premises! their territoriality.

1. Vienna Convention on Diplomatic Relations, Article 22: Functional Necessity – would disrupt the efficient and effective exercise of diplomatic
a. Duty of the receiving State to refrain from entering the premises functions.
without the consent of the head of mission.
b. Duty of the receiving the state to protect the premises against any This covers the properties of the state not the ambassador because there are
intrusion, damage, disturbance, etc. exemptions as to properties with the ambassador.

States can waiver their inviolability Even in cases in armed conflict. It applies to archives and documents and extends to
-Waiver must be express. the ambassadors residence papers and correspondence.
The duty to refrain from the premises also includes the duty not to interfere with
Theories behind inviolability of embassies and consulates: “extraterritoriality”, official communications. The diplomatic bag should not be opened or detained. A
“representational” and “functional necessity”, diplomatic bag should not be interpreted literally. Bearing of course marks that it
pertains to the diplomatic mission.
Article 22 sets out the negative (not to enter) and positive (to protect) obligations of
the receiving state, including immunity from processes (search, execution, Non-interference with Mission’s official communication
attachment, etc.)
Under Article 27 of VCDR, a receiving state shall permit and protect the free
communication on behalf of the mission for all official purposes. Such official

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communication shall not be interfered with. The diplomatic bag shall not be opened It still extends when an ambassador is not exercising diplomatic functions because the
or detained. subjection to the processes prevents the diplomat from discharging his functions.
Ambassadors are absolute immune from processes
The use of sniffer dogs and external examination of the bag is, however,
permitted customarily per ILC Draft Articles. A reasonable suspicion that the bag The only remedy is declaring a person persona non grata
contains illegal article will also allow the authorities to have the bag opened in the
presence of a representative of the sending state. The bag, however must bear visible Inviolability is not only applicable to criminal jurisdiction but includes processes which
external marks of its character and contain only diplomatic documents of official includes arrest, sending a subpoena, etc.
articles. (What about electronic examinations? See: Art. 28 of the 1989 ILC Draft
Articles on Diplomatic Courier and Diplomatic Bag. “Directly or indirectly”) This is acknowledging In the republic of congo vs. Belgium.
ICJ: regardless wherever the minister is no state can interfere with his functions.
Dogs and external examinations mechanisms are allowed.

If there is reasonable suspicion It may be opened with the presence with the
representative. It is required that the bag should contain marks of its diplomatic
character and must contain diplomatic documents.
It is still not settled in circumstances of x-ray etc.

Inviolability of the persons

Diplomatic Immunity

The rationale for diplomatic immunity has changed:

1. Traditional justification sovereignty of the state and the respect due to

the other sate (co-equality of principle)
2. Now, the rationale is for “Functional Necessity” – diplomats must enjoy
protection in order for them to discharge their duties more effectively
and efficiently.
3. Other theories: “extraterritoriality” and “ representative character”

Diplomats have personal inviolability

The prevailing theory now is functional necessity. The purpose is to be able to

efficiently and effectively exercise the functions of the diplomat.

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