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PART A. GENERAL PRINCIPLES AND CONCEPTS Pacta Sunt Servanda: Agreements must be kept in good faith.

INTERNATIONAL LAW Obligations erga omnes: Concerned with the enforceability of norms of
• Traditional Definition: A body of rules and principles of action which international law, the violation of which is deemed to be an offense not only
are binding upon civilized states in their relations to one another. against the state directly affected by the breach, but also against all the
• U.S. Courts: Law which deals with the conduct of states and of members of the international community.
international organizations and with their relations inter se, as well as
with some of their relations with persons, whether natural or juridical. Jus Cogens
• Coquia: Body of accepted rules and principles which regulate the • Basic principles of international law which the States are not allowed
conduct of States and other international persons as they interact in to contact out of.
the world community. • Also known as PEREMPTORY NORMS OF GENERAL
INTERNATIONAL LAW
IS INTERNATIONAL LAW A LAW? o Norms which no derogation is permitted and which can be
• It is true law if the coercive acts undertaken as a reaction against a modified only by a subsequent norm of general international
delict can be interpreted as a reaction of the international legal law having the same character
community.
• It is a law in the same sense as national law, provided that it is, in Concept of ex aequo et bono: A tribunal is allowed to substitute its own
principle, possible to interpret the employment of force directed by ideas of equity for any and every rule of international law.
one State against another either as sanction or as delict.
• It is a law because it is seen as such by States and other subjects of
international law.

SCOPE OF INTERNATIONAL LAW


• All the interests of contemporary international and even domestic life.
• Topics:
1. Regulation of space expeditions
2. Division of the ocean floor
3. Protection of human rights
4. Management of the international financial system
5. Regulation of the environment

FUNCTIONS OF INTERNATIONAL LAW


• To provide legal basis for the orderly management of international
relations.
• To determine the territorial, personal, temporal, and material spheres
of validity of the national legal orders and this to coordinate them.

Public and Private International Law


• Public International Law – Governs the relationships between and
among states and also their relations with international organizations
and individual persons.
• Private International Law – Domestic law which deals with cases
where foreign law intrudes in the domestic sphere where there are
questions of the applicability of foreign law or the role of foreign
courts.
PART B. INTERNATIONAL AND NATIONAL LAW Treaties do not become part of the law of a state unless it is
consented to by the state.
CHAPTER 4 • Doctrine of Incorporation- international law is adopted as part of
INTERNATIONAL LAW AND MUNICIPAL LAW the law of the land.

DUALISM v. MONISM What does the Philippine law follow?


When there is conflict between international law and domestic law, which • Art. VII, Sec. 21 of the 1987 Constitution manifests its adherence to
should prevail? the “dualist” theory and at the same time adopts incorporation theory
1. Dualist or Pluralist Theory and thereby makes international law part of domestic law.
• International law and municipal law are essentially different from
each other. Conflict between International Law and Domestic Law: International
• When international law and municipal law conflict, municipal Rule
must prevail. The dualists are positivist with a strong emphasis Which law should prevail?
on state sovereignty. It will depend on whether the case goes to a domestic or to an
2. Monistic Theory or Monism international tribunal.
• International law and domestic law belong to only one system of • In International Tribunal, a state may not plead its own law as an
law. excuse for failure to comply with international law. It may not invoke
• 2 Monist theories the provisions in its constitution or its law as an excuse to perform
(1) Municipal law subsumes and is superior to international law. this duty.
(2) International law is superior to domestic law. (Supported by
Kelsen) Conflict between International Law and Domestic Law: Municipal Rule
• Domestic courts are bound to apply the local law.
MUNICIPAL LAW AND INTERNATIONAL LAW
The prevailing practice accepts dualism. There are prevailing provisions SPECIFIC SITUATIONS OF CONFLICT:
in treaties which recognize dualism (This follows the dualist tradition and 1. Treaty v. Constitution
blocks domestic law from entry into the international arena): • General Rule: Vienna Convention on the Law of Treaties provides
• Art. 27 of the Vienna Convention on the Law of Treaties says: “A that a party may not invoke the provisions of a municipal law as
party may not invoke the provisions of its internal law as justification justification to perform a treaty.
for its failure to perform a treaty.” • Exception: Art. 46. Vienna Convention on Law of Treaties provides
• Art. 13 of the Declaration of Rights and Duties of States adopted by that when constitutional violation is manifest and concerns a rule of
International Law Commission in 1949: “Every State has the duty to internal law of fundamental importance, state may deviate from treaty
carry out in good faith its obligations arising from treaties and other obligation
sources of international law, and it may not invoke provisions in its • Under the dualist theory, unconstitutionality of a treaty is purely a
constitution or its laws as an excuse for failure to perform this duty.” domestic matter, and that State faces risk of international sanction.
• A state which has entered into an agreement must modify its law to 2. Treaty v. Domestic Legislation
make it conform to the agreement. • When 2 instruments relate to the same subject and are
• Art. 38 recognizes the common teachings of domestic law as part of irreconcilable, the later in date shall control in the domestic sphere,
international law. provided that the treaty stipulation is self-executing.
• However, a treaty, even if contrary to a later statute, is nevertheless
INTERNATIONAL LAW IN DOMESTIC LAW binding in international law.
How does international law become part of domestic law for “dualists”?
• Doctrine of transformation- for international law to become part of
domestic law it must be expressly and specifically transformed into
domestic law through the appropriate constitutional machinery as an
act of Congress or Parliament. (In short, there must be legislation)
1987 CONSTITUTION OF THE PHILIPPINES 2. Ichong v. Hernandez
• The United Nations Charter imposes no strict or legal obligations
ARTICLE II, SECTION 2. The Philippines renounces war as an instrument of regarding the rights and freedom of their subjects, and the
national policy, adopts the generally accepted principles of international law Declaration of Human Rights contains nothing more than a mere
as part of the law of the land and adheres to the policy of peace, equality, recommendation, or a common standard of achievement for all
justice, freedom, cooperation, and amity with all nations. peoples and all nations. The Treaty of Amity between the Republic
of the Philippines and the Republic of China of April 18, 1947
ARTICLE VII, SECTION 21. No treaty or international agreement shall be guarantees equality of treatment to the Chinese nationals "upon the
valid and effective unless concurred in by at least two-thirds of all the same terms as the nationals of any other country".
Members of the Senate. • But even supposing that the law infringes upon the said treaty, the
treaty is always subject to qualification or amendment by a
ARTICLE VIII, SECTION 4. (2) All cases involving the constitutionality of a subsequent law, and the same may never curtail or restrict the
treaty, international or executive agreement, or law, which shall be heard by scope of the police power of the State.
the Supreme Court en banc, and all other cases which under the Rules of
Court are required to be heard en banc, including those involving the 3. Kuroda v. Jalandoni
constitutionality, application, or operation of presidential decrees, • Executive Order No. 68 which was issued by the President of the
proclamations, orders, instructions, ordinances, and other regulations, shall Philippines on the 29th day of July, 1947, is valid and constitutional.
be decided with the concurrence of a majority of the Members who actually Article 2 of our Constitution provides in its section 3 that "The
took part in the deliberations on the issues in the case and voted thereon. Philippines renounces war as an instrument of national policy, and
adopts the generally accepted principles of international law as part
ARTICLE VIII, SECTION 5. The Supreme Court shall have the following of the law of the nation."
powers: • The rules and regulations of the Hague and Geneva Conventions
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the form part of and are wholly based on the generally accepted
law or the Rules of Court may provide, final judgments and orders of lower principles of international law. In fact, these rules and principles were
courts in: accepted by the two belligerent nations, the United States and
(a) All cases in which the constitutionality or validity of any treaty, Japan, who were signatories to the two Conventions. Such rules and
international or executive agreement, law, presidential decree, proclamation, principles, therefore, form part of the law of our nation even if the
order, instruction, ordinance, or regulation is in question. Philippines was not a signatory to the con-ventions embodying them,
for our Constitution has been delib-erately general and extensive in
CASE DOCTRINES: its scope and is not confined to the recognition of rules and principles
of international law as contained in treaties to which our government
1. Gonzales v. Hechanova may have been or shall be a signatory.
• Under the Constitution, the main function of the Executive is to
enforce laws enacted by Congress. The former may not interfere in 4. Co Kim Cham v. Valdez Tan Keh
the performance of the legislative powers of the latter, except in the • Kinds of de facto governments:
exercise of his veto power. He may not defeat legislative enactments 1) Government that gets possession and control of, or usurps, by
that have acquired the status of law, by indirectly repealing the same force or by the voice of the majority, the rightful legal government
through an executive agreement providing for the performance of the and maintains itself against the will of the latter.
very act prohibited by said laws. 2) Government that is established and maintained by military forces
• The Constitution of the Philippines has clearly settled the question of who invade and occupy a territory of the enemy in the course of
whether an international agreement may be invalidated by our courts war and denominated a government of paramount force.
in the affirmative, by providing in Section 2 of Article VIII (Now Sec. 3) Government that is established by the inhabitants of a country
5(2)(a) of Article VIII). In other words, our Constitution authorizes the who rise in insurrection against the parent state.
nullification of a treaty, not only when it conflicts with the fundamental • The powers and duties of de facto governments of this description
law, but, also, when it runs counter to an act of Congress. are regulated in Section III of the Hague Conventions of 1907.
PART C. SOURCES OF INTERNATIONAL LAW ACCORDING TO MALANCZUK

STATUTE OF THE INTERNATIONAL COURT OF JUSTICE 1945 A. TREATIES


• Synonymous to ‘conventions’, basically speaks of establishing
Article 38 rules expressly recognized by the contesting states.
1. The Court, whose function is to decide in accordance with • Treaties are the major instrument of cooperation in international
international law such disputes as are submitted to it, shall apply: relations, and cooperation often involves a change in the relative
a. international conventions, whether general or particular, positions of the states involved (for example, rich countries give
establishing rules expressly recognized by the contesting money to poor countries).
states; • Agreements regarding rules of customary law are structured into
b. international custom, as evidence of a general practice treaties; where there is disagreement or uncertainty, states tend to
accepted as law; settle disputes by compromises, which also take the form of treaties.
c. the general principles of law recognized by civilized nations; • Law-making Treaties resemble national statutes in its content,
d. subject to the provisions of Article 59, judicial decisions and impose the same obligations on all the parties to the treaty, and to
the teachings of the most highly qualified publicists of the regulate the parties’ behaviour over a long period of time. In other
various nations, as subsidiary means for the determination words, it is an agreement on universal substantive legal principles
of rules of law. (human rights treaties, Genocide Conventions, etc.).
2. This provision shall not prejudice the power of the Court to decide a • Contract Treaties binds only the parties to a contract. It does not
case ex aequo et bono, if the parties agree thereto. necessarily consider the state to be included, it may however in
cases of Internationalised Contracts (Ex: company in state A enters
Article 59 into a contract with company in state B, state enters into a contract
The decision of the Court has no binding force except between the with a foreign corporation).
parties and in respect of that particular case.
B. CUSTOM
• ‘General practice accepted as law’
VIENNA CONVENTION ON THE LAW OF TREATIES 1969 • State’s practice can be gathered from published materials like from
newspaper reports of actions taken by states, government statements and
Article 34. General rule regarding third States proclamations to the press, at international conferences and at meetings of
A treaty does not create either obligations or rights for a third State international organizations, and also from a state’s laws and judicial
without its consent. decisions.
• Evidence of customary law may sometimes also be found in the writings of
Article 53. Treaties conflicting with a peremptory norm of general international lawyers, and in judgments of national and international
international law (jus cogens) tribunals.
A treaty is void if, at the time of its conclusion, it conflicts with a • To be considered as part of customary law, there must be a degree of
peremptory norm of general international law. For the purposes of the repetition over a period of time, or as stated in the Asylum case, the ICJ
present Convention, a peremptory norm of general international law is a suggested that a customary rule must be based on ‘a constant and uniform
norm accepted and recognized by the international community of States as a usage’. In the Asylum case ,what prevented the formation of a customary
whole as a norm from which no derogation is permitted and which can be rule was not the absence of repetition, but the presence of major
modified only by a subsequent norm of general international law having the inconsistencies in the practice.
same character. • State practice consists not only of what states do, but also of what they
say. It also includes omissions, or what states are not willing to do.
• Opinio iuris defined as a conviction felt by states that a certain form of
conduct is required by international law. It is the psychological element in
the formation of customary law. State practice alone does not suffice, it
must be shown that it is accompanied by the conviction that it reflects a
legal obligation. Moreover, if states are clearly divided on whether a certain
conduct constitutes the expression of an opinio iuris, it is impossible to find E. LEARNED WRITERS AND PUBLICISTS
that there is such opinio iuris. • Learned writings can be evidence of customary law, but they can also play
• ‘Instant’ Customary Law is the creation of customary law within a a subsidiary role in developing new rules of law. They provide the sort of
relatively short passage of time. This kind customary law is denied conceptual framework which is necessary for any legal discussion.
most of the time, but exceptional cases and situations could render • States in diplomatic controversies still quote profusely from writers,
such law applicable and necessary, like for instance, the community because writers provide a comprehensive, succinct and impartial summary
of States unequivocally and without any dissent considers certain of state practice.
acts, which have not been known before, to be illegal, the opinio juris • While international arbitral tribunals frequently cite textbooks and authors,
might suffice even if no practice could evolve. the International Court of Justice refrains from doing so in its decisions, as
distinct from the dissenting or concurring opinions of individual judges.
C. GENERAL PRINCIPLES OF LAW
• General principles of International Law are not so much a source OTHER SOURCES OF INTERNATIONAL LAW
of law as a method of using existing sources, extending existing rules
by analogy, inferring the existence of broad principles from more F. ACTS OF INTERNATIONAL ORGANISATIONS
specific rules by means of inductive reasoning. • International organizations usually have at least one organ which is not
• General principles of National Law fill gaps in international law by composed of representatives of member states, and the practice of such
borrowing principles which are common to all or most national organs is capable of constituting a source of law. For instance, the United
systems of law. Specific rules of law usually vary from country to Nations Secretariat often acts as a depositary of treaties and its practice as
country, but the basic principles are often similar. depositary has already affected the law of treaties on such topics as
• Not all general principles applied in international practice stem from reservations.
domestic legal systems and have been transplanted to the • General Assembly resolutions, even if they are not binding, may sometimes
international level by recognition. Some are based on ‘natural justice’ have normative value. They can, in certain circumstances, provide
common to all legal systems such as the principles of good faith, evidence important for establishing the existence of a rule or the
estoppel and proportionality. emergence of an opinio juris.
• The application of domestic law principles to the international level is
limited to a number of procedural rules, such as the right to a fair hearing, G. ‘SOFT’ LAW
in dubio pro red or ‘when in doubt, for the accused’, denial of justice, or the • Known in the sense of guidelines of conduct which are neither strictly
exhaustion of local remedies, and some substantive principles, like binding norms of law, nor completely irrelevant political maxims, and
prescription and liability for fault. operate in a grey zone between law and politics. It is also considered a
• In the present century international law, when treaties and customary law special characteristic of international economic law and of international
contain few rules applicable to certain topics, the gap has been filled by environmental law.
recourse to general principles of commercial and administrative law, • May be mostly found in treaties not yet in force or in resolutions of
borrowed from national legal systems. When the ICJ decides a case, there international conferences or organizations, which lack legally binding
is a very strong probability that the International Court (and other tribunals) qualities.
will follow such decision in later cases, since judicial consistency is the • It also has something to do with the fact that states in agreement frequently
most obvious means of avoiding accusations of bias. do not yet wish to bind themselves legally, but nevertheless wish to adopt
and test certain rules and principles before they become law.
D. JUDICIAL DECISIONS
• There is no formal stare decisis doctrine in international law. International H. EQUITY
courts are not obliged to follow previous decisions, though they almost • Used synonymously with ‘justice’ and ‘natural law’, those who look to equity
always take previous decisions into account. as a source of international law often appeal to natural law in order to
• When the ICJ decides a case, there is a very strong probability that the strengthen their arguments and to escape accusations of subjectivism.
International Court (and other tribunals) will follow such decision in later • A judge or arbitrator can always use equity to interpret or fill gaps in the
cases, since judicial consistency is the most obvious means of avoiding law, even when he has not been expressly authorized to do so. But he may
accusations of bias. not give a decision ex aequo et bono or a decision in which equity
overrides all other rules unless he has been expressly authorized to do so.
• The meaning of Equity in international law has been discussed in two TREATY v. CUSTOM
rather different contexts. The first context is the application of equitable • Whether or not treaties override custom depends on the intention of the
principles by the ICJ in the delimitation of maritime boundaries between parties. If the treaty is intended to be declaratory of customary law, it may
states. The other area is the controversial claim of developing countries for be seen as evidence of customary law. If a treaty comes later than a
a new international economic order which should be based on equitable particular custom, as between the parties to the treaty, the treaty should
principles to achieve a fairer distribution of wealth between rich and poor prevail. A treaty manifests a deliberate choice of the parties and the
states. principle of pacta sunt servanda should be followed.
• However, if a later treaty is contrary to a customary rule that has the status
HIERARCHY OF SOURCES of jus cogens, custom will prevail.
• The different sources of international law are not arranged in a strict • In a situation, where custom develops after a treaty, the rule is not clear.
hierarchical order. Supplementing each other, in practice they are often The logical rule is that the later custom, being the expression of a later will,
applied side by side. However, if there is a clear conflict, treaties prevail should prevail. However, an attempt is made in practice to keep the treaty
over custom and custom prevails over general principles and the subsidiary alive by efforts at reconciling a treaty with the developing custom.
sources.
B. CUSTOMS
IUS COGENS • A general and consistent practice of states followed by them from a sense
• A treaty is void if it conflicts with a peremptory norm of general of legal obligation.
international law. A peremptory norm of general international law is a • Two basic elements of custom: the material factor, that is, how states
norm accepted and recognized by the international community of behave, and the psychological or subjective factor, that is, why they
States as a whole. behave the way they do.
• Material Factor is the initial factor for determining the existence of custom
OBLIGATION ERGA OMNES is the actual behavior of states. This includes duration, consistency, and
• Concerned with the enforceability of norms of international law, the generality of the practice of states. The required duration can either be
violation of which is deemed to be an offence not only against the state short or long. But it is not the most important element. More important is the
directly affected by the breach, but also against all members of the consistency and the generality of the practice.
international community. • The basic rule on consistency is continuity and repetition. While for
uniformity and generality of practice, it need not be complete, but it must be
CODIFICATION OF INTERNATIONAL LAW substantial.
• Arranging customary laws to form treaties to make the rules more precise • Subjective Factor is reasoning why states behave the way they do.
and more accessible. Opinio Juris is belief that a certain form of behavior is obligatory, is what
• The International Law Commission seeks to codify the law, not by makes practice an international rule. Without it, practice is not law. Opinio
preparing a draft convention, but simply by summarizing the law in a report juris is a matter of proof. The burden of proving its existence falls on the
to the General Assembly. Such reports are not binding in the same way as state claiming it. It is also possible that dissenting states would be bound by
treaties, they however, constitute valuable evidence of customary law. custom, but only if they have consistently objected to it while the custom
was merely in the process of formation.
ACCORDING TO BERNAS:
C. GENERAL PRINCIPLES OF LAW
A. TREATIES • This has reference not to principles of international law but also to
• Treaties determine the rights and duties of states just as individual rights principles of municipal law common to the legal systems of the world. They
are determined by contracts. Their binding force comes from the voluntary may be said to belong to no particular system of law but are evidence
decision of sovereign states to obligate themselves to a mode of behavior. rather of the fundamental unity of law.
• All treaties must be observed by the parties under the principle of pacta
sunt servanda or that ‘agreements must be kept’. It is the principle in D. JUDICIAL DECISIONS
international law which says that international treaties should be upheld by • The decisions of the court have no binding force except between the
all the signatories. parties and in respect of that particular case. Hence, such decisions do not
constitute stare decisis. However, the decisions of the ICJ are not only
regarded as highly persuasive in realm of international law, but they also Philippines within the realm of the sovereignty and territorial integrity
have contributed to the formulation of principles that have become of the Republic of the Philippines”.
international law. • Any conflict between the provisions of RA No.6732 and the
provisions of the Tripoli Agreement will not have the effect of
E. LEARNED WRITERS AND PUBLICISTS enjoining implementation of the Organic Act because it is now
• ‘Publicists’ are institutions which write on international law. It should be the Constitution itself that provides for the creation of an
noted, however, that these institutions are generally government autonomous region in Muslim Mindanao.
sponsored. Hence, they bear within themselves a potential for national • It is neither necessary nor determinative of the case to rule on the
bias. This is one of the reasons why the ICJ is generally reluctant to refer to nature of the Tripoli Agreement. Even if it were considered as a
these ‘learned writers’ and ‘publicists’, but they are often taken into binding treaty or international agreement, as international law it
consideration. would not be superior to RA No. 6734 which is an enactment of
Congress.
OTHER SOURCES OF INTERNATIONAL LAW
2. Pharmaceutical and Health Care Assoc v. Health Secretary
EQUITY • In 1990, the Philippines ratified the International Convention on the
• It is an instrument whereby conventional or customary law may be Rights of the Child. Article 24 of said instrument provides that State
supplemented or modified in order to achieve justice. It is a mandate given Parties should take appropriate measures to diminish infant and child
to a judge to exercise discretion in order to achieve a determination that is mortality, and ensure that all segments of society, specially parents
more equitable and fair. and children, are informed of the advantages of breastfeeding. The
DOH then issued herein assailed RIRR. The issue raised was
UN RESOLUTIONS whether the Administrative Order or RIRR issued by the DOH is
• Declarations of legal principles and resolutions by the United Nations are unconstitutional.
generally considered merely recommendatory. But if they are supported by • It was held that under the 1987 Constitution, international law can
all the states, they are an expression of opinio juris. Resolutions can also become part of the sphere of domestic law either by transformation
be a reflection of what has become customary law. or incorporation.
• The transformation method requires that an international law be
SOFT LAW transformed into a domestic law through a constitutional mechanism
• Also called “non-treaty agreements.” They are international agreements not such as local legislation.
concluded as treaties and therefore not covered by the Vienna Convention • The incorporation method applies when, by mere constitutional
on the Law of Treaties. declaration, international law is deemed to have the force of
• Other sources of soft law are administrative rules which guide the practice domestic law.
of states in relation to international organizations. These are mostly • Consequently, legislation is necessary to transform the
procedures that are carried out with varying degrees of consistency and provisions of the WHA Resolutions into domestic law. The
uniformity that may eventually ripen into customary law or become provisions of the WHA Resolutions cannot be considered as part of
formalized later on in treaties. the law of the land that can be implemented by executive agencies
• Soft law plays an important role in international relations because often without the need of a law enacted by the legislature.
states prefer non-treaty obligations as a simpler and more flexible
foundation for their future relations. 3. North Sea Continental Shelf Case (1969)
• Denmark and the Netherlands submitted an individual dispute with
CASE DOCTRINES:
Germany to the ICJ involving claims to the North Sea Continental
Shelf.
1. Datu Firdausi Abbas v. Comelec
• The parties sought a method to fairly delimit the Continental Shelf.
• Another issue that was raised herein was whether or not certain
• Both argued based on the equidistance principle that each State
provisions of RA No. 6734 conflicts with the Tripoli Agreement which
claimed all areas that are closer to itself than any other state. Their
provides for the “establishment of Authority in the Southern
basis is the Geneva Convention, customary international law and a
general rule of conventional practicality.
• Germany alleged that these two boundaries would produce an • It must be established that it is in accordance with: (1) constant and
inequitable result for her because it had not ratified the Geneva uniform usage; (2) practiced by the States in question, and that this
Convention. usage is; (3) the expression of a right appertaining to the State
• The issue raised herein is whether or not Germany is under granting asylum (Colombia); and (4) a duty incumbent on the
legal obligation to accept the equidistance-special territorial State (Peru). – Article 38 of Statute of the Court. Colombia
circumstances principle as stated in Art. 6 of the Geneva failed to establish uniform usage of the custom by relevant State.
Convention, either as a customary international law rule or the
basis of the Geneva Convention. 5. Corfu Channel Case
• It was held that the principle of equidistance, as contained in Article • The Court found that the factual evidence presented made it
6, did not form a part of existing or emerging customary international improbable that the Albanian authorities had been unaware of the
law at the time of drafting the Convention. mine laying in Albanian waters. The Court further stated that the
• For a customary rule to emerge the court held that it needed: (1) presumed knowledge of the Albanian Government entailed its
very widespread and representative participation in the obligation to notify “for the benefit of shipping in general, the
convention, including States whose interests were specially existence of a minefield in Albania territorial waters and in warning
affected (i.e. generality); and (2) virtually uniform practice (i.e. the approaching British warships of the imminent danger to which the
consistent and uniform usage) undertaken in a manner that minefield exposed them”
demonstrates and; (3) a general recognition of the rule of law or • With regard to the case of UK, The Court held that the United
legal obligation (i.e. opinio juris). Kingdom had not violated Albanian sovereignty by sending warships
• In the North Sea Continental Shelf cases the court held that the through the strait without the prior authorization of the Albanian
passage of a considerable period of time was unnecessary (i.e. Government.
duration) for the formation of a customary law. The first criteria was • In this connection, the Court made an important pronouncement
not met. The number of ratifications and accessions to the on the question of innocent passage through straits, stating
convention (39 States) were not adequately representative or that it is “generally recognized, and in accordance with
widespread. Duration taken for the customary law rule to emerge is international custom that States in time of peace have a right to
not as important as widespread and representative participation, send their warships through straits used for international
uniform usage and the existence of an opinio juris. navigation between two parts of the high seas without the
previous authorization of a coastal State, provided that the
4. Asylum Case (1950) passage is innocent”.
• The ICJ decided against Colombia, stating that Colombia had not • However, with regard to the operation on November 12 and 13, it
proved the existence, either regionally or locally, of a constant and was executed contrary to the clearly expressed wish of the Albanian
uniform practice of unilateral qualification as a right of the State of Government. It did not have the consent of the international mine
refuge and an obligation upon the territorial State. clearance organizations, thus it could not be justified as the exercise
• The facts submitted to the Court disclosed too much contradiction of the right of innocent passage. The Court recognized the Albanian
and fluctuation to make it possible to discern therein a usage peculiar Government's complete failure to carry out its duties after the
to Latin America and accepted as law. It therefore followed that explosions and the dilatory nature of its diplomatic notes as
Colombia, as the State granting asylum, was not competent to extenuating circumstances for the action of the United Kingdom. But,
qualify the nature of the offence by a unilateral and definitive to ensure respect for international law, of which it is the organ, the
decision binding on Peru. Court declared that the action of the British Navy constituted a
• Also, there was no expressed or implied right of unilateral and violation of Albanian sovereignty.
definitive qualification of the State that grants asylum under the
Havana Convention or relevant principles of international law. The
Montevideo Convention of 1933, which accepts the right of unilateral
qualification, and on which Colombia relied to justify its unilateral
qualification, was not ratified by Peru. Thus, the Convention was not
binding on Peru nor can it be said to reflect customary international
law because of the low numbers of ratifications.
PART D. SUBJECTS OF INTERNATIONAL LAW • Establishment of new states claim by a group within
an established state to break away and form a new
1. SUBJECTS OF INTERNATIONAL LAW entity
a. Subjects of international law are entities endowed with rights and • Does not establish a new state claims to be free
obligations in the international order and possessing the capacity from external coercion, claim to overthrow effective
to take certain kinds of action on the international plane. They are rulers and establish a new government (assertion of
those who have international personality. the right of revolution), or claim of people within an
b. Objects of international law are those who indirectly have rights entity to be give autonomy.
under or are beneficiaries of international law through subjects of
international law. 4. RECOGNITION OF STATES
c. The subjects of law are not necessarily identical in their nature or a. When State A recognises State B, it means that both recognize
in the extent of their rights, and their nature depends upon the the capacity of each other to exercise all the rights belonging to
needs of the community. statehood. It is an acknowledgment of the capacity of an entity to
exercise rights belonging to statehood.
2. STATES: COMMENCEMENT OF THEIR EXISTENCE b. Can an entity claim to be a state before it is recognized by other
a. Under the Montevideo Convention of 1933, a state as a person of states? 2 theories:
international law should possess: i. Declaratory theory - recognition is merely declaratory of the
i. a permanent population existence of the state and that its being a state depends
ii. defined territory upon its possession of the required elements and not upon
iii. government recognition
iv. capacity to enter into relations with other States ii. Constitutive theory - recognition constitutes a state. It is
what makes a state a state and confers legal personality on
3. CHARACTERISTICS OF STATEHOOD the entity. This recognizes that States may decide to
a. Article 1 of the Convention on Rights and Duties of States (1933 recognize an entity as a state even if it does not have all the
Montevideo) provides for the qualifications of a State: elements of state as defined under the Montevideo
i. permanent population - community of persons sufficient in Convention
number and capable of maintaining the permanent existence
of the community and held together by a common bond of 5. RECOGNITION OF GOVERNMENTS
law a. It means that the act of acknowledging the capacity of an entity to
ii. defined territory - even if boundaries of the state have not exercise powers of government of a state.
yet been settled, if one or more of its boundaries are b. If a change in government is brought about through ordinary
disputed, or if some its territories are claimed by another constitutional procedure, recognition by others comes as a matter
state, the entity does not cease to be a state of course.
iii. government - that institution or aggregate of institutions by c. The problem is acute when a new government within a state
which an independent society makes and carries out those comes into existence through extra-constitutional means.
rules of action which are necessary to enable men to live in
a social state, or which are imposed upon the people 6. CONSEQUENCES OF RECOGNITION OR NON-RECOGNITION
forming that society by those who possess power or a. A government, once recognized, gains increased prestige and
authority of prescribing them stability. The doors of funding agencies are opened, loans are
iv. capacity to enter into relations with other states - means facilitated, access to foreign court and immunity from suit are
sovereignty which is dependent on recognition. gained.
1. Self-determination — the right to freely determine i. Non-recognition bars an entity from all these benefits.
their political status and freely pursue their economic, b. Recognition is terminated when another regime is recognized.
social and cultural development.
2. Self-determination has 2 levels:
7. SUCCESSION OF STATES 3. when part of the old becomes a new state, the new
a. States do not last forever. State succession can arise as a result state will not succeed to international agreements
of: unless it accepts such agreements and the other
i. Decolonization parties thereto agree or acquiesce. “clean slate
ii. Dismemberment of an existing state theory”
iii. Secession 4. pre-existing boundary and other territorial agreements
iv. Annexation and merger. continue to bind notwithstanding. uti possdetis.
b. 3 views:
i. new state succeeds to NO rights or obligations of the old 8. FUNDAMENTAL RIGHTS OF STATES
state, but begins with tabula rasa a. Independence
ii. new state assumes all obligations and rights of old state i. Independence is the capacity of a state to provide for its own
iii. succession has varying effects on state rights and duties well-being and development free from the domination of
c. Succession to: other states, provided it does not impair legitimate rights. As
i. Territory a right, it is the right to exercise within its portion of the
1. for particular property, new state assumes territory of globe, to the exclusion of other, the functions of a state.
old state for state property, subject to agreement ii. Independence results to other rights such as jurisdiction over
between the old and new states, title passes as its territory and permanent population, right to self-defense
follows: and the right to legation
• where part of the territory becomes territory of b. Equality
another state, property of the old state in that i. Equality of legal rights irrespective of the size or power of
territory passes to the new state the state One state, one vote
• where the old state is absorbed by a new state, all c. Peaceful co-existence
property of the old state passes to the new state i. includes mutual respect for each other’s territorial integrity
• where part of the old state becomes a new state, and sovereignty, mutual non-aggression, non-interference in
property of the old located in the territory of the new each other’s affairs and the principle of equality.
passes to the new state.
ii. public debt 9. SOME INCOMPLETE SUBJECTS
1. subject to agreement between the states concerned, a. Protectorates
responsibility for the public debt of the old remain with i. dependent states which have control over their internal
the old state, except: affairs but whose external affairs are controlled by another
• where part of the territory of the old state becomes state.
territory of the new state, local public debt under b. Federal state
contracts relating to that territory are transferred to i. union of previously autonomous entities.
the new c. Mandated and Trust territories
• where old state absorbed by new state, all are i. mandated territories were territories placed by the LoN
transferred to new state under one of the Allies. The Mandate system was replaced
• where part of a state becomes a separate state, by the trusteeship system after WWII
local public debt relating to the territory of the new ii. Examples: Carolines, Marianas and Marshall Islands were
state is transferred to the new state placed under the trusteeship of the US
iii. Treaties d. Taiwan
1. when part of the territory of the old becomes territory e. The Sovereign Order of Malta
of the new state, international agreements of the old f. The Holy See and Vatican City has no permanent population
regarding the said territory cease. the 3rd party may
claim “rebus sic stantibus” 10. INSURGENTS
2. when old is absorbed by new, all international a. Protocol II
agreements are terminated
i. The only international agreement exclusively regulating the • violence to life and person, in particular
conduct of parties in a non-international armed conflict is the murder of all kinds, mutilation, cruel treatment
1977 Protocol II to the 1949 Geneva Conventions. and torture;
ii. A non-international armed conflict is one which takes place • taking of hostages;
in the territory of a High Contracting Party between its armed • outrages upon personal dignity, in
forces and dissident armed forces or other organized armed particular humiliating and degrading
groups which, under responsible command, exercise such treatment;
control over a part of its territory as to enable them to carry • the passing of sentences and the
out sustained and concerted military operations and to carrying out of executions without
implement this Protocol. previous judgment pronounced by a
iii. For Protocol II to apply, the following must be present: regularly constituted court, affording all
1. the armed dissidents must be under responsible the judicial guarantees which are
command recognized as indispensable by civilized
2. they must exercise control over a part of its territory peoples.
as to enable them to carry out sustained and • The wounded and sick shall be collected and cared
concerted military operations and to implement this for.
Protocol • An impartial humanitarian body, such as
iv. NPA, MNLF and MILF are not covered; therefore, Common the International Committee of the Red
Article 3 applies, not Protocol II. Cross, may offer its services to the
v. Insurgent groups which satisfy the requisites of Protocol II Parties to the conflict. The Parties to the
are “pre-statal entities possessing limited form of conflict should further endeavor to bring
international personality” into force, by means of special
vi. State practice indicates 2 specific attributes of such agreements, all or part of the other
personality: provisions of the present Convention.
1. they are recognized as having belligerent status • The application of the preceding
against the de jury government provisions shall not affect the legal status
2. they are seen as having treaty making capacity of the Parties to the conflict.
b. Common Article 3
i. The 4 Geneva Conventions contain a common Article 3 11. SELF-DETERMINATION
which provides: a. Self-determination — the right to freely determine their political
1. Art. 3. In the case of armed conflict not of an status and freely pursue their economic, social and cultural
international character occurring in the territory of one development.
of the High Contracting Parties, each Party to the b. Self-determination has 2 levels:
conflict shall be bound to apply, as a minimum, the i. Establishment of new states
following provisions: 1. claim by a group within an established state to break
• Persons taking no active part in the hostilities, away and form a new entity
including members of armed forces who have laid ii. Does not establish a new state
down their arms and those placed hors de combat 1. claims to be free from external coercion, claim to
by sickness, wounds, detention, or any other cause, overthrow effective rulers and establish a new
shall in all circumstances be treated humanely, government (assertion of the right of revolution), or
without any adverse distinction founded on race, claim of people within an entity to be give autonomy.
color, religion or faith, sex, birth or wealth, or any
other similar criteria. 12. NON-STATE ENTITIES
• To this end, the following acts are and shall remain a. The Commonwealth of Australia v. the State of New South Wales
prohibited at any time and in any place whatsoever i. Facts: Australia sues one of its states, New South Wales, for
with respect to the above- mentioned persons: torts resulting from a collision of vessels. Wales claims it is
immune from suit because it is a “sovereign state” to be when a party disowns or fails to perform the
placed in the same category as foreign states. obligations arising therefrom, then such party cannot
ii. Held: An Australian state is necessarily part of the territory of claim to retain such rights proceeding from the
the Commonwealth. It is not a foreign country. The people of agreement. In this case, South Africa was found to
NSW are the very same people of Australia. They are but have administered its mandate contrary to the
one people with a common citizenship. Therefore, state international agreements imposing its obligations as
immunity, and all other privileges appurtenant thereto cannot such, as well as against the UN Declaration of Human
be granted to NSW under the pretext that it is a sovereign Rights. It has failed to ensure the moral and material
state. well-being of the inhabitants of Namibia. It has, in
b. Cultural Agreements between Quebec and France Quebec is fact, disavowed the Mandate. Such violations are a
allowed to enter into such agreement due to the special status ground for termination.
accorded it under the Canadian Constitution d. Case of Belligerent Communities or Insurgent Groups and
c. Mandate System implications for states like the Philippines, in re: MNLF/MILF and
i. International Status of SWA - mandate created by League of CPP/NPA/NDF - obligations in the conduct of armed conflict
Nations elapsed when the League ceased to exist i. Even belligerent groups and insurgents assume certain
1. Facts: Germany renounced all rights to SWA through obligations under international law w/c among others,
the Versailles Treaty. Certain other territories as a include obligations such as:
consequence of the war have ceased to be under the 1. obligation to distinguish between combatants and
sovereignty of their previous conquerors, but are still noncombatants
incapable of self-government. By virtue of the 2. prohibition against attacks on civilians
Mandates System created under the Covenant of the 3. prohibition against superfluous injury or inflicting
League of Nations. In this case a “tutelage” was unnecessary suffering
established for these peoples, this tutelage entrusted 4. obligations to refrain from treachery
to certain advanced nations as “Mandatories” in 5. obligation to respect medical and religious personnel
behalf of the League. The Union of South Africa 6. prohibition against use of certain forms of weapons
became the Mandatory for SW Africa exercising full e. Case of indigenous peoples (autonomous regions) — UN
powers of administration, subject to the supervision of Declaration on the Rights of IPs; no right of secession
the Council of the League. The creation of this new
international institution did not involve any cession of 13. INTERNATIONAL ORGANIZATIONS
territory or transfer of sovereignty. Its object is to a. United Nations
promote the well-being of the inhabitants pursuant to i. The UN came into being on October 24, 1945, when
the “sacred trust” of civilization. the UN Charter came into force.
2. Issue: did the mandate cease upon the dissolution of ii. Admission to membership is governed by Art. 4:
the league of nations? Yes 1. The UN is a universal organization charged
3. Held: Yes. But not the obligation arising from the with peacekeeping responsibilities, the
sacred trust of civilization which does not depend development of friendly relations among
upon the existence of the League. nations, the achievement of international
ii. Legal consequences for States of the continued presence of cooperation in solving international problems
South Africa in Namibia notwithstanding Security Council of an economic, social, cultural and
Resolution humanitarian character, and the promotion
1. The GA terminated the mandate of SWA and of human rights and fundamental freedoms
declared the continued presence of South Africa in for all human beings without discrimination.
Namibia illegal. The entry into force of the Charter of Article 1 of the Charter says that the UN can
the UN created a contractual relationship between the include “all other peace-loving states which
Mandatory States on the one hand and the member accept the obligations contained in the
states on the other. Therefore, it only follows that present Charter and, in the judgment of the
Organization, are able and will to carry out jurisdiction over crimes if its jurisdiction is authorized by the United
these obligations.” As new independent Nations Security Council.
nations arise, the number of members
continue to grow. REPUBLIC ACT NO. 9851
b. Establishment, international personality, immunity - “Philippine Act on Crimes Against International Humanitarian Law,
i. An international organization is an organization that Genocide, and Other Crimes Against Humanity” was signed into law
is set up by treaty among 2 or more states. It is on 11 December 2009
different from non-governmental organizations - defines and penalizes “the most serious crimes of concern to the
(NGO) which are set up by private persons. The international community as a whole” – namely, war crimes, genocide,
constituent document of international organizations and crimes against humanity.
therefore is a treaty. For this reason, only states are - enabled the Philippines to prosecute the international crimes itself,
members of international organizations. contribute to an effective international criminal justice regime,
c. Although international organizations have personality in strengthen its national criminal justice system, and generally bring its
international law, their powers and privileges are by no national law into conformity with international standards as well as
means like those of states. Their powers and privileges are up-to-date with important developments in international law.
limited by the instrument that created them.

14. EUROPEAN COMMUNITIES (EU)


a. European Economic Community Treaty, Art. 211
i. Article 211. In each of the Member States, the Community
shall enjoy the most extensive legal capacity accorded to
legal persons under their laws; it may, in particular, acquire
or dispose of movable and immovable property and may be
a party to legal proceedings. To this end, the Community
shall be represented by the Commission.
b. EU, Maastricht Treaty, 1991
i. The two big advances of the Treaty of Maastricht
were the commitment of the EC to full Economic and
Monetary Union (EMU), including a timetable and
provision for a European Central Bank, and the
establishment of the ‘three-pillar’ structure outlined
above.

ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT 1998


- opened for signature July 17, 1998
- entered into force July 1, 2002
- established 4 core international crimes: genocide, crimes against
humanity, war crimes, and the crime of aggression
- these crimes are not subject to any statute of limitations
- the International Criminal Court can only investigate and prosecute
the four core international crimes in situations where states are
"unable" or "unwilling" to do so themselves.
- The court has jurisdiction over crimes only if they are committed in
the territory of a state party or if they are committed by a national of a
state party; an exception to this rule is that the ICC may also have
CASE DOCTRINES: - Such subjection to local jurisdiction would impair the capacity of such
body to discharge its responsibilities impartially on behalf of its
1. Co Kim Cham v. Valdez Tan Keh member-states.
- All acts and proceedings of a de facto government are good and - General rule: estoppel does not apply to confer jurisdiction to a
valid. tribunal that has none over a cause of action.
- Non-political judgments and judicial proceedings of de facto - The immunity from suit or the jurisdiction of local courts can only be
governments are valid and remain valid even after the occupied waived expressly by said entities and not by the employees or
territory has been liberated. agents.
- 3 Kinds of De Facto Government:
o Established through rebellion (govt gets possession and 4. US v. Guinto
control through force or the voice of the majority and - While the doctrine of state immunity appears to prohibit only suits
maintains itself against the will of the rightful government) against the state without its consent, it is also applicable to
o Through occupation (established and maintained by military complaints filed against officials of the state for acts allegedly
forces who invade and occupy a territory of the enemy in the performed by them in the discharge of their duties.
course of war; denoted as a government of paramount force) - The doctrine is not absolute and does not say the state may not be
o through insurrection (established as an independent sued under any circumstance. On the contrary, the rule says that the
government by the inhabitants of a country who rise in state may not be sued without its consent, which clearly imports that
insurrection against the parent state) it may be sued if it consents. The consent of the state to be sued
may be manifested expressly or impliedly. Express consent may be
2. Intl. Catholic Migration Commission v. Ferrer-Calleja embodied in a general law or a special law. Consent is implied when
- Determination of immunities accorded to international organizations the state enters into a contract or it itself commences litigation.
is a political question. - The restrictive application of State immunity is proper only when the
- “International organization" is generally used to describe an proceedings arise out of commercial transactions of the foreign
organization set up by agreement between two or more states. sovereign, its commercial activities or economic affairs. Stated
Under contemporary international law, such organizations are differently, a State may be said to have descended to the level of an
endowed with some degree of international legal personality such individual and can thus be deemed to have tacitly given its consent
that they are capable of exercising specific rights, duties and powers. to be sued only when it enters into business contracts. It does not
They are organized mainly as a means for conducting general apply where the contract relates to the exercise of its sovereign
international business in which the member states have an interest functions.
- The grant of immunity from local jurisdiction to ICMC and IRRI is
clearly necessitated by their international character and respective 5. CIR v. Gotamco & Sons
purposes. The objective is to avoid the danger of partiality and - While treaties are required to be ratified by the Senate under the
interference by the host country in their internal workings. The Constitution, less formal types of international agreements may be
exercise of jurisdiction by the Department of Labor in these instances entered into by the Chief Executive and become binding without the
would defeat the very purpose of immunity, which is to shield the concurrence of the legislative body.
affairs of international organizations, in accordance with international
practice, from political pressure or control by the host country to the 6. US v. Ruiz
prejudice of member States of the organization, and to ensure the - The rule of State immunity exempts a State from being sued in the
unhampered performance of their functions. courts of another state without its consent or waiver. This is a
necessary consequence of the principles of independence and
3. Southeast Asia Fisheries Development Center v. NLRC equality of states. However, state immunity now extends only to
- One of the basic immunities of an international organization is governmental acts of the state.
immunity from local jurisdiction, i.e., that it is immune from the legal - The rules of International Law are not petrified; they are constantly
writs and processes issued by the tribunals of the country where it is developing and evolving. And because the activities of states have
found. multiplied, it has been necessary to distinguish them-between
sovereign and governmental acts (jure imperii) and private,
commercial and proprietary acts (jure gestionis). The result is that - In the Lubanga case, the ICC had jurisdiction over the case
State immunity now extends only to acts jure imperil (sovereign & because of (1) Democratic Republic of the Congo's being a
governmental acts) signatory to the Rome Statute; (2) Lubanga's crime being
- The correct test for the application of State immunity is not the committed after the statute's entry into force; and (3) Lubanga's
conclusion of a contract by a State but the legal nature of the act. In armed group (a non-state actor) being considered as a "national
Syquia, the United States concluded contracts with private armed force" under the statute -properly subjecting him under
individuals but the contracts notwithstanding the United States was the ICC's jurisdiction.
not deemed to have given or waived its consent to be sued for the
reason that the contracts were for jure imperii and not for jure
gestionis.

7. J.B.L Reyes v. Bagatsing


- Constitution prevails over treaties.
- Receiving state is tasked for the protection of foreign diplomats from
any lawless element as provided in the Vienna Convention, but this
cannot be invoked as defense because of the primacy of the
Constitution which guarantees the rights to free speech and
peaceable assembly
- Denial of the rally does not pass the clear and present danger test.
Mere assertion that subversives may infiltrate the ranks of the
demonstrators does not suffice.

8. Baer v. Tizon
- A foreign army, permitted to march through a friendly country or to be
stationed in it, by permission of its government or sovereign, is
exempt from the civil and criminal jurisdiction of the place.

9. WHO v. Aquino
- Diplomatic immunity is essentially a political question and courts
should refuse to look beyond a determination by the executive
branch of the government
- Where the plea of diplomatic immunity is recognized and affirmed by
the executive branch of the government as in the case at bar, it is
then the duty of the courts to accept the claim of immunity upon
appropriate suggestion by the principal law officer of the
government, the Solicitor General in this case, or other officer acting
under his direction.

10. Prosecutor v. Thomas Lubanga Dyilo


- States are the original and major subjects of International Law
while individuals are merely objects of international law because
they can only benefit or be subjected to international law if they
acted through states. An exception which make individual
subjects would be when international statutes and treaties, such
as the Rome Statute, ICCPR, etc., have enabled individuals to
have direct access to international courts and tribunals.
PART E. TERRITORY 4. Wood, an American General, visited Palmas and discovered that the
Netherlands also claimed sovereignty over the islands.
CHAPTER 7 5. US and the Netherlands agreed to submit the dispute to binding
TERRITORY: LAND, AIR, OUTER SPACE arbitration.

TERRITORY Issue: Whether the Island of Palmas forms a part of the territory of USA or of
• An element of a state Netherlands. NETHERLANDS.
• An area over which a state has effective control.
• Control over territory = essence of the state Ratio:
• “Sovereignty over a portion of the surface of the glove is the legal • Contiguity—US also argued that Palmas was US’ territory because
condition for the inclusion of such portion in the territory of any the island was closer to the Philippines than to Indonesia which was
particular state. then held by the Netherlands East Indies.
• Includes: land, maritime areas, airspace, and outer space. • The arbitrator said there was no positive international law which
favored the US’ approach of terra firma, where the nearest
MODES OF ACQUISITION OF SOVEREIGNTY OVER TERRITORY continent or island of considerable size gives title to the land in
1. Discovery and Occupation dispute. The arbitrator held that mere proximity was not an
2. Prescription adequate claim to land noted that if the international
3. Cession community followed the proposed United States approach, it
4. Conquest would lead to arbitrary results.
5. Subjugation • Continuous and peaceful display of sovereignty—the Netherlands'
6. Accretion primary contention was that it held actual title because the
Netherlands had exercised authority on the island since 1677.
DISCOVERY AND OCCUPATION • The arbitrator noted that the US had failed to show documentation
• Occupation is the acquisition of terra nullius (territory which prior to proving Spanish sovereignty on the island except those documents
occupation belonged to no state or which may have been abandoned that specifically mentioned the island's discovery. Additionally, there
by a prior occupant. was no evidence that Palmas was a part of the judicial or
• Discovery of terra nullius is not enough to establish sovereignty. It administrative organization of the Spanish government of the
must be accompanied by effective control. Philippines.
• However, the Netherlands showed that the Dutch East India
Western Sahara Case Company had negotiated treaties with the local princes of the island
• Territories inhabited by tribes or peoples having a social and political since the 17th century and had exercised sovereignty, including a
organization were not regarded as terra nullius. requirement of Protestantism and the denial of other nationals on the
• The information furnished to the Court shows that at the time of island.
colonization, Western Sahara was inhabited by peoples which, if • The arbitrator pointed out that if Spain had actually exercised
nomadic, were socially and politically organized into tribes and under authority, than there would have been conflicts between the two
chiefs competent to represent them. countries but none are provided in the evidence.
• In resolving island territorial disputes, the following 3 important rules
The Island Palmas must be followed:
1. Title based on contiguity has no standing in international law.
FACTS: 2. Title by discovery is only an inchoate title.
1. Palmas (Miangas) is a small island with a population of about 750 3. If another sovereign begins to exercise continuous and actual
and was of little strategic or economic value. sovereignty and the discoverer does not contest this claim, the
2. It sits halfway between Mindanao and Nanusa in the Netherlands claim by the sovereign that exercises authority is greater than a
Indies. title based on mere discovery.
3. It is within the boundaries of the Philippines as defined by Spain and
thus ceded to the US.
Eastern Greenland Case (the PCIJ ruled in favor of Denmark) AIRSPACE
• A claim to sovereignty based not upon some particular act or title • The air above is considered an extension of the territory below.
such as treaty or cession but merely upon continued display of • Each state has exclusive jurisdiction over the air space above its
authority, involves 2 elements each of which must be shown to exist: territory.
(a) intention and will to act as sovereign, and (b) some actual • Consent for transit must be obtained from the subjacent nation.
exercise or display of such authority. • Aircraft must not only not be attached, unless there is reason to
• Another circumstance which must be taken into account is the extent suspect the aircraft is a real threat, but also that a warning to land or
to which the sovereignty is also claimed by some other Power. change course must be given to before it is attacked.
• One of the peculiar features of the present case is that up to 1931, • Civilian aircrafts should never be attacked.
there was no claim by any Power other than Denmark to the • Sovereignty neither requires nor permits the shooting down of
sovereignty of Greenland. airlines in peacetime.

PRESCRIPTION Chicago Convention on International Civil Aviation (1944)


• Requires effective control • Territory of the State: Land areas and territorial waters adjacent
• Object is NOT terra nullius thereto under the sovereignty, suzerainty, protection or mandate of
• The required length of effective control is longer that in occupation. such State.
• May be negated by a demonstrated lack of acquiescence by the prior • Applicable only to civil aircraft.
occupant. • No state craft of a contracting State shall fly over the territory of
another State or land thereon without authorization by special
CESSION agreement or otherwise.
• Acquisition of territory through treaty. • State Craft: Aircraft used in military, customs and police services.
• A treaty of cession imposed by a conqueror is invalid.

CONQUEST
• Before: Taking possession of a territory through armed force.
o It is necessary that the war had ended either by a treaty or
an indication that all resistance had been abandoned.
o The conqueror must have the intention of acquiring the
territory, not just occupying it temporarily.
• Today: Proscribed by international law.
o “The territory of a State shall not be the object of acquisition
resulting from the threat or use of force. No territorial
acquisition resulting from the use or threat of force shall be
recognized as legal.”

ACCRETION AND AVULSION


• Accretion: Gradual increase of territory by the action of nature.
• Avulsion: Sudden change resulting for instance from the action of a
volcano.
OUTER SPACE CHAPTER 8
• Sovereignty over air space extends only until where outer space TERRITORY: LAW OF THE SEA
begins.
• Outer space, wherever that might be, and celestial bodies, are not IMPORTANCE OF THE SEA
susceptible to appropriation by any state. 1. Medium of communication
• The exploration and use of outer space, including the moon and 2. Contain vast natural resources
other celestial bodies, shall be carried out for the benefit and in the
interests of all countries, irrespective of their degree of economic or Grotius
scientific development. • Elaborated the doctrine of the open seas which considers the high
• Moon and celestial bodies shall be free for exploration by all States seas as res communis accessible to all.
without discrimination. • The doctrine recognized as permissible the delineation of a maritime
• States Parties to the Treaty (1967 Treaty on the Exploration and Use belt by littoral states as an indivisible part of its domain.
of Outer Space) shall not place in orbit around the Earth any objects • Maritime belt = territorial sea
carrying nuclear weapons or any other kinds of weapons of mass
destruction. CONVENTION ON THE LAW OF THE SEA OF 1982
• The Moon and other celestial bodies shall be used exclusively for • Prevailing law on maritime domain.
peaceful purposes.
• Parties shall regard astronauts as envoys of mankind in outer space Art. 2 of the 1982 Law of the Sea
and shall render to them all possible assistance. 1. Sovereignty of a coastal State extends, beyond its land territory and
internal waters and, in case of an archipelagic State, its archipelagic
waters, to an adjacent belt of sea, described as territorial sea.
2. Sovereignty extends to the air space over the territorial sea as well
as to its bed and subsoil.
3. Sovereignty over the territorial sea is exercised subject to this
Convention and to other rules of international law.

TERRITORIAL SEA
• Belt of sea outwards from the baseline and up to 12 nautical miles
beyond.
• The width of this territorial belt of water is the 12-mile rule.
• However, where the application of the 12-mile rule to neighboring
littoral states would result in overlapping, the rule is that the dividing
line is the median line equidistant from the opposite baselines.
• Equidistance rule does not apply where historic title or other special
circumstances require a different measurement.

BASELINES
• The low-water line (the line on the shore reached by the sea at low
tide) along the coast as marked on large scale charts officially
recognized by the coastal State
• The width of the territorial sea is measured from the baselines.
• Two ways of drawing the Baseline:
o Normal baseline – one drawn following the low-water line
along the coast as marked on large scale charts officially
recognized by the coastal State
o This line follows the curvatures of the coast and therefore
would normally not consist of straight lines o If a crime committed by the crew does not affect the good
o Straight baseline – drawn connecting selected points on the order of the coastal state, it will usually allow the flag state to
coast without appreciable departure from the general shape deal with it instead of trying it in its own courts.
of the coast. o Ships in distress possess some degree of immunity.
• Most archipelagic states use straight baselines
ARCHIPELAGIC WATERS
Art. 47 of the Convention on the Law of the Sea • An archipelagic state may designate sea lanes and air routes
• The length of such baseline shall not exceed 100 nautical miles, thereabove, suitable for the continuous and expeditious passage of
except that up to 3% of the total number of baselines enclosing any foreign ships and aircraft through or over its archipelagic waters and
archipelago may exceed that length up to a maximum length of 125 the adjacent territorial sea.
nautical miles • The concept of the archipelagic waters is similar to the concept of
internal waters under the Constitution of the Philippines, and
Sovereignty over Territorial Sea removes straits connecting these waters with the economic zone or
• Same as sovereignty over its land territory high sea from the rights of foreign vessels to transit passage for
• The sea and the strait are subject to the right of innocent passage by international navigation.
other states.
BAYS
Right of Innocent Passage • Well-marked indentation whose penetration is in such proportion to
• Passage that is not prejudicial to the peace, good order or security of the width of its mouth as to contain land-locked waters and constitute
the coastal state more than a mere curvature of the coast.
• Applies to ships, aircrafts, and submarines (must surface). • An indention shall not be regarded as a bay unless its are is as large
• Coastal states have the unilateral right to verify the innocent as, or larger than, that of the semi-circle whose diameter is a line
character of passage, and it may take the necessary steps to prevent drawn across the mouth of the indentation.
passage that it determines to be not innocent.
• Also applicable to straits CONTIGUOUS ZONE
• Corfu Channel Case: Warships have a right of passage through • An area of water not exceeding 24 nautical miles from the baseline.
international straits. • It extends 12 nautical miles from the edge of the territorial sea.
• The coastal State may exercise the control necessary to:
INTERNAL WATERS o Prevent infringement of its customs, fiscal, immigration or
• All waters landwards from the baselines of the territory. sanitary laws and regulations within its territory or territorial
• Sovereignty over these waters is the same in the extent as sea
sovereignty over land, and it is not subject to the right of innocent o Punish infringement of the above laws and regulations
passage. committed within its territory or territorial sea.
• Conflicting views:
o Saudi Arabia v. Aramco: Ports of every state must be open EXCLUSIVE ECONOMIC ZONE OR PATRIMONIAL SEA
to foreign vessels and can only be closed when vital interest • An area extending not more than 200 nautical miles beyond the
of the state so requires. baseline.
o Nicaragua v. US: A coastal state may regulate access to its • The coastal state has rights over the economic resources of the sea,
ports. seabed, and subsoil – but the right does not affect the right of
• The coastal state may apply and enforce its laws in full against navigation and overflight other states.
foreign merchant ships in its internal waters. Except: • Coastal states have two primary obligations:
o The jurisdiction of the coastal state’s courts is not exclusive. o They must ensure through proper conservation and
The courts of the flag state may also try people for crimes management measures that the living resources of the EEZ
committed on board the ship. are not subjected to over-exploitation.
o The coastal state shall not interfere with the exercise of o They must promote the objective of “optimum utilization” of
disciplinary powers by the captain over his crew. the living resources.
CONTINENTAL (ARCHIPELAGIC) SHELF HOT PURSUIT
• Refers to • Art. 111 allows hot pursuit of a foreign vessel where there is good
a. The Seabed and subsoil of the submarine areas adjacent to the reason to believe that the ship has violated laws or regulations of a
coastal state but outside the territorial sea, to a depth of 200 coastal state.
meters or, beyond that limit, to where the depth allows • The pursuit must commence when the foreign vessel is within the
exploitation internal waters, the archipelagic waters, the territorial waters or the
b. Seabed and subsoil of areas adjacent to islands contiguous zone of the pursuing state.
• If the foreign ship is in the contiguous zone, it may be pursued only
DEEP SEABED for violations of the rights of the coastal state in the contiguous zone.
• “Common Heritage of Mankind” • Hot pursuit must stop as soon as the ship pursued enters the
• These are areas of the seabed and ocean floor, and their subsoil, territorial waters of its own state or of a third state.
which lie beyond any national jurisdiction • May carried out only by warships or military aircrafts, or any other
• These are the common heritage of mankind and may not be ship or aircraft properly marked for that purpose.
appropriated by any state or person
SETTLEMENT OF DISPUTES
ISLANDS • Peaceful settlement is compulsory.
• Naturally formed area of land, surrounded by water, which is above
water at high tide
• Artificial islands or installations are not islands. INTERFERENCE WITH SHIPS ON THE HIGH SEAS
• Important due to the possibility of exploiting oil and gas resources Exceptional cases where a warship of one state may interfere with a
around them merchant ship of another state:
• Islands can have their own territorial sea, exclusive economic zone 1. Stateless Ships
and continental shelf 2. Hot Pursuit
• Rocks which cannot sustain human habitation or economic life shall 3. The right of approach – if a warship encounters a merchant ship on
have no exclusive economic zone or continental shelf, but can have the high seas and has reasonable grounds for suspecting that the
a territorial sea. merchant ship is of the same nationality as the warship, it may carry
out investigations on board the merchant ship in order to ascertain its
HIGH SEAS nationality.
• All parts of the sea that are not included in the territorial sea or in the 4. Treaties – gives the contracting parties a reciprocal power of arrest
internal waters of a state over one another’s merchant ships.
• The flag state has exclusive jurisdiction over its ships on the high 5. Piracy
seas to the extent not limited by agreement. 6. Belligerent rights – In a time of war, a warship belonging to a
• Flag State: The State whose nationality the ship possesses; it is belligerent (aggressive; engaged in war) state may seize enemy
nationality which creates the right to fly a country’s flag, and not vice merchant ship, and also, in certain circumstances neutral merchant
versa. ships trading with the enemy.
• Six Freedoms which High Seas are subject to: 7. Self-defense
1. Navigation 8. Action authorized by the United Nations.
2. Overflight – belongs to both civilian and military aircraft
3. Fishing – includes the duty to cooperate in taking measures
to ensure the conservation and management of the living
resources of the high seas
4. Lay submarine cables and pipelines
5. Construct artificial islands and structures
6. Scientific research