SAN BEDA COLLEGE

COLLEGE OF LAW
MENDIOLA, MANILA

PUBLIC INTERNATIONAL LAW

NOTES
AY 2016 - 2017

Sources used: Cruz, Bernas, Sarmiento Notes and SBC COL PIL
Memory Aid

Made by JPEDLP
USE WITH CAUTION!
 PUBLIC INTERNATIONAL LAW – Sy Notes

✓ What is International Law? ✓ Is the State the same as a nation?

- A body of rules and principles of action which are binding upon STATE NATION
civilized states in their relations with one another. A group of people living together in A relation of birth or origin and
- The body of legal rules which apply between sovereign states a definite territory under an implies a common race, usually
independent government organized characterized by community of
and such other entities as have been granted international
for political ends and capable of language and customs.
personality. entering into international relations.
- A normative system harnessed to the achievement of common Legal concept Racial or ethnic concept
values – values that speak to us all, whether we are rich or poor, Often used interchangeably nowadays
black or white, of any religion or non, or from countries that are
industrialized or developing. (Former ICJ President Rosalyn ✓ What are the requisites of a State?
Higgins) 1. Permanent population
- Human beings living within its territory.
✓ Does it only pertain to States? - They should be of both sexes and sufficient in number to
- No, it also applies to internationally recognized organizations. maintain and perpetuate themselves.
2. Defined Territory
✓ What types of relationships does International Law govern? - The fixed portion of the surface of the earth in which the people
1. Between States of the state reside.
2. Between international organizations and States - The territory should be big enough to be self-sufficient and small
3. Among international organizations themselves enough to be easily administered and defended.
4. Between States or international organizations and natural or 3. Government
juridical persons - The agency, through which the will of the state is formulated,
expressed and realized.
✓ Modern approach of what International Law - Form of government does not matter provided it is able to
- Composed not only of states but also of such other international maintain order within the realm and comply with its
persons such as the United Nations, the Vatican City, colonies responsibilities under the law of nations.
and dependencies, mandates and trust territories, international 4. Sovereignty or Independence
administrative bodies, belligerent communities, and even - The power of the state to direct its own affairs without
individuals. interference or dictation from other states.
5. Recognition by other States**
✓ Is International Law the same as the Laws of Nations? What’s the
difference? 6. Possession of a sufficient degree of Civilization**
INTERNATIONAL LAW LAW OF NATIONS ** Included by other theorists
The body of legal rules which apply The natural law of nations is a
between sovereign states and such particular science, consisting in a ✓ Who coined the term International Law? Where did it come
other entities as have been granted just and rational application of the from and how did it evolve?
international personality. law of nature to the affairs and - Jeremy Bentham, an English philosopher
conduct of nations or sovereigns.

2 JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes

- May be an individual, as well.

✓ Scope of International Law
SCHOOL FOREMOST BASIS ✓ Father of International Law
OF EXPONENT/S - Hugo Grotius (1583-1645), Dutch jurist and humanist
THOUGHT - Studied at the University of Leiden and became a lawyer at the
Naturalists Samuel • Law of Nature / Higher Law age of 15
Pufendorf - Natural and universal - Best known for De Jure Belli Ac Pacis (Concerning the Law of
Aristotlean principle of right and wrong, War and Peace)
scholasticism independent of any mutual - The system of International law is based on the dictate of right
Medieval and intercourse or compact which reason as well as the practice of states.
renaissance is supposed to be discovered
Roman and recognized by every ✓ Is International Law a true law?
Catholic legal individual through the use of - There is a conflicting view:
scholars his reason and conscience. For older theorists like Thomas Hobbes, Samuel Pufendorf and
• International Law as thus John Austin – It is not true law because there is no sovereign
viewed is therefore not a law supranational body to enforce International law and that there is
between but above states. a lack of an enforcement mechanism.
Positivists Richard Zouche • Agreement of sovereign states For the recent thinkers – it is recognized as law in practice and
Vattel to be bound by it the sanctions for failing to comply, although often less direct,
Kant - Positive identification with or are similar to those of municipal law.
Hegel acknowledgement of the law
20th century is necessary to make it ✓ Sanctions in International Law
legal scholars: binding on the states it - The compulsive force of reciprocal advantage and fear of
Kelsen, purports to govern retaliation
Dorkwin and • International Law is not a law 1. Force of public opinion
Hart of subordination but of 2. Self-help
coordination. 3. Intervention by third party States – as sanctioned by the Security
Council; if allowed by the parties through treaty
Eclectics or Emerich de • Compromise position who
Grotians Vattel 4. Reasonableness
offers both the law of nature
Christian Wolff 5. Normal habits of obedience
and the consent of states as the
6. Machinery of the United Nations – imposition of sanctions of
basis of International law.
the United Nations
7. War – should be the absolute last resort; most countries have
✓ Subject of International Law
laws in place against the commencement of war against other
- An entity that can directly assert rights and be held directly
nations.
responsible under that law.
- It can be a proper party in transactions involving the application
of the law of nations among members of the International
community.

3 JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes

✓ What is self-help? Why is it a sanction? ✓ How many members of the UN?

- It is a corrective or preventive measure taken by a private citizen - 193.
or other states when a State refuses to cooperate with the
international community. It is a sanction because lack of ✓ Hard Law v. Soft Law
international relations may place a country in a precarious HARD LAW SOFT LAW
position with the world. Binding international legal norms Refers to norms that are non-
or those which have coercive binding in character but still have
✓ Why do states comply with International Law? character legal relevance.
- Reciprocity, when a State consents to a partial surrender of Treaties/Conventions Drafts
sovereignty, it is usually in consideration of the reciprocal
commitments of the other contracting States. ✓ Is soft law, law?
- No, but its importance within the general framework of
✓ What is the view of the Philippines regarding International international legal development is such that particular attention
Law? requires to be paid to it.
- The Philippines susbscribe to International Law as evidenced by - It can, however, become hard law as it serves as a precursor to
the Incorporation Doctrine in our Constitution. such.

✓ How is consent obtained? ✓ Do we have soft law in the Philippines?

1. Express (i.e., in writing), as in the form of treaties or conventions - Yes, house and senate bills.
2. Implied, as in the case of international customs
3. Presumed, in the case of general principles of law ✓ What does International Law cover?
- Unlike most other areas of law, it has no defined area or
✓ Branches of International Law governing body but instead refers to the many and varied laws,
- Laws of peace, war and neutrality rules and customs which govern, impact and deal with the legal
JUS GENTIUM JUS INTER GENTES interactions between different nations, their governments,
Maxims which have been It is the body of treaties, U.N. businesses and organizations, to include their rights and
established by the common Conventions, and other responsibilities in these dealings.
consent of mankind, seems to international agreements. Jus
intimate, that sovereigns in their inter gentes is a major part of ✓ Distinction between Private and Public International Law
transactions with each other, public international law; it also PUBLIC INTERNATIONAL PRIVATE INTERNATIONAL
cannot insist on the observance of includes internationally LAW LAW
any but those last-mentioned / recognized human rights. Regulates the relationship Selects between conflicting
maxims, reserving the internal between States and international municipal systems of law to
law for the direction of their own entities, regulates competing regulate the relationship between
consciences. demands, and established the persons
Law of Peoples Law between the peoples / among framework for predictable and Focuses on the conduct, not of
the people agreed behavior among parties. States, or international

4 JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes

organizations, but rather on the

conduct of individuals, ✓ International Morality or Ethics
corporations and other private - Embodies those principles which govern the relations of states
entities. from the higher standpoint of conscience, morality justice and
The body of rules of the domestic humanity.
law of a State that is applicable
when a legal issue contains a ✓ International Administrative Laws
foreign element, and it has to be - That body of laws and regulations, now highly developed,
decided whether a domestic rule created by the action of international conference or commissions
should apply or relinquish which regulate the relations and activities of national and
jurisdiction to a foreign court international agencies with respect to those material and
intellectual interests which have received an authoritative
✓ When is it a Private International Issue? universal recognition.
- Private International Law is that area of law that comes into play
whenever a court is faced with a question that contains a foreign ✓ Monist and Dualist Theory
element, or a foreign connection. The mere presence of such a MONIST THEORY DUALIST THEORY
foreign element in a legal matter raises a number of questions Law is seen as a single entity of International Law and national
and it is the function of Private International Law to provide an which national and international law are independent of each
answer to these questions and to ensure just solutions. versions are merely particular other, and both systems are
1. Which competent court has jurisdiction manifestations. regarded as mutually exclusive
2. Which law applies to the particular case and independent.
3. Under what circumstances may it be enforceable for either
country ✓ Is the Philippines a Monist or a dualist?
- Monist.
✓ International Comity v. International Diplomacy
INTERNATIONAL COMITY INTERNATIONAL ✓ Doctrine of Incorporation
DIPLOMACY - Article II, Section 2, 1987 Constitution
Rules of politeness, convenience The application of intelligence - The law of nations, although not specially adopted by the
and goodwill observed by States and tact to the conduct of official Constitution or any municipal act, is essentially a part of the law
in their mutual intercourse relations between independent of the land. Its obligation commences and runs with the
without being legally bound by states. existence of a nation.
them
✓ Monistic approach or dualist?
✓ When you violate rules on International Comity, is it - Monistic approach.
actionable?
- No, violations of its precepts are not regarded as constituting
grounds for legal claims.

5 JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes
✓ Doctrine of Transformation
- Generally accepted rules of international law are not per se
binding upon the state but must first be embodied in legislation
enacted by the lawmaking body and so transformed into
municipal law.
✓ Which does the Philippines adhere to?
- The Philippines follow the Incorporation Theory as provided for
in Article II, Section 2 of the 1987 Constitution.
- It also follows the Transformation Theory, but not in an
exclusive manner, as applied by the treaty making power of the
President.
✓ Soft v. Hard Transformation
SOFT TRANSFORMATION HARD TRANSFORMATION
It holds that either a judicial or It holds that only legislation can
legislative act of a State can transform International Law into
transform International Law into domestic law.
domestic law.
✓ Treaty v. Executive Agreement
TREATY EXECUTIVE AGREEMENT
The creation of written Usually made by the President in
agreements whereby the states his own authority, but still
participating bind themselves constitutes valid treaties within
legally to act in a particular way the framework of international
or to set up particular relations law.
between themselves.
Treaties are express agreements The creation of executive
and are a form of substitute agreements is not expressly
legislation undertaken by states. covered by the Constitution, but
They bear a close resemblance to rather implied from its terms and
contracts in a superficial sense in subsequent practice, and they
that the parties create binding have been extensively used.
obligations for themselves, but
they have a nature of their own
6 JPEDLP
which reflects the character of the
international system.
✓ Can a treaty repeal a statute or vice versa?
- Basic rule would be to attempt to reconcile the apparent
contradiction and thereby give effect, if possible, to both systems
of law.
- Generally, the treaty is rejected in the local forum but is upheld
in the international tribunals as a demandable obligation of the
signatories under the maxim pacta sunt servanda.
- Declaration of the Rights and Duties of States, International Law
Commission, June 9, 1949
“Every State has the duty to carry out in good faith its
obligations arising from treaties or other sources of international
law, and it may not invoke provisions in its constitution or its
laws as an excuse for failure to perform this duty.”
- According to former ICJ President Rosalyn Higgins, it would be
dependent upon which tribunal it appears before. If it appears
before an international tribunal, the treaty would be upheld.
✓ Law enacted after treaty
- Lex posterior derogate priori
- More recent law prevails an inconsistent earlier law.
1. Both customary and treaty sources of law exist
2. These two sources cannot be construed consistently.
✓ Basis of International Law
1. Direct Consent – upon their individual acceptance of its
principles and rules
2. Implied Consent – a fiction to account for the acceptance of the
great body of general principles and specific rules that had come
to form the body of customary law.
3. Mutuality of Interest - could only be maintained by altering from
time to time such rules as it might be no longer to the interest of
parties to observe.
4. Necessity – the fact that nations have common interests
constitutes the actual community of States
 PUBLIC INTERNATIONAL LAW – Sy Notes
✓ Functions of International Law
1. To establish peace and order in the community of nations
2. To prevent the employment of force, including war, in all
international relations
3. To encourage and ensure greater international cooperation in the
solution of certain common problems of a political, economic,
cultural or humanitarian character
4. To provide for the orderly management of the relations of states
on the basis of substantive rules they have agreed to observe as
members of the international community
✓ Sources of International Law
- Article 38 of the Statute of International Court of Justice
1. The Court, whose function is to decide in accordance with
International Law such disputes as are submitted to it, shall
apply:
a. International conventions, whether general or particular,
establishing rules expressly recognized by contesting states;
b. International custom, as evidence of a general practice
accepted as law;
c. The general principles of law recognized by civilized
nations;
d. Subject to the provisions of Article 59, judicial decisions and
the teachings of the most highly qualified publicists for the
various nations, as subsidiary means for the determination of
rules of law.
2. This provision shall not prejudice the power of the Court to
decide a case ex aequo et bono, if the parties agree thereto.
✓ Can a treaty override a custom?
- Treaties are seen as superior to custom, which is regarded in any
event as a form of tacit agreement. Unless the State has shown
resistance of the custom, they may be bound by such if there is
no treaty to the contrary.
✓ Jus cogens
7 JPEDLP
- Duties which every state owes to the international community as
a whole as a norm from which no derogation is permitted which
can be modified only by a subsequent norm of general
International Law having the same character.
✓ International Law v. Custom
INTERNATIONAL LAW CUSTOM
Provided for by treaties or Consists of rules of law derived
conventions from the consistent conduct of
States acting out of the belief that
the law required them to act that
way
✓ Elements of Customary Norms
1. Duration or long state practice
2. Consistency of the State practice or the widespread repetition by
States of similar international acts over time
3. Generality of the State practice or that the acts are taken by a
significant number of States; and
4. Opinio juris sive necessitates
✓ Opinio juris sive necessitates
- States observe a practice or a norm out of a sense of legal
obligation or a belief in its juridical necessity as opposed to
motives of courtesy, fairness or morality.
✓ Constitutional Provisions recognizing International Law
PROVISIONS
Article II, Adopts the generally accepted principles of
Section 2, International Law as part of the law of the land and
1987 adheres to the policy of peace, equality, justice,
Constitution freedom, cooperation and amity with all nations.
Article VII, No treaty or international agreement shall be valid
Section 21 and effective unless concurred in by at least two-
thirds of all the Members of the Senate. No treaty
 PUBLIC INTERNATIONAL LAW – Sy Notes

or international agreement shall be valid and

effective unless concurred in by at least two-thirds
of all the Members of the Senate.
Article XIII, The Supreme Court shall have the power to review,
Section 5 revise, modify, or affirm on appeal on certiorari, the
constitutionality or validity of any treaty,
international agreement or executive agreement.
Article XIII, Creation of Commission on Human Rights to
Section 18 [7] monitor the Philippine Government’s compliance
with international treaty obligations on human
rights.
Article XVIII, Foreign military bases, troops, or facilities shall not
Section 25 be allowed in the Philippines except under a treaty
duly concurred in by the Senate and, when the
Congress so requires, ratified by a majority votes
cast by the people in a national referendum held for
that purpose, and recognized as a treaty by the other
contracting State.
Article 1, Renounced war as an instrument of national policy
Kellogg-
Briand Pact
Article 16, The Principle of Sovereign Immunity of States –
Section 3 The State may not be sued without its consent.
✓ Equity praeter legem
- It can be used to fill the gaps in the law.
✓ Equity intra legem
- It can be used to adapt to the facts of individual cases.
✓ Equity contra legem
- It can be used as a reason for refusing to apply unjust laws.
✓ Other supplementary sources
1. Judicial Decisions
2. Teachings of the most highly qualified publicists – need not be
individuals but may also be organizations or commissions
✓ Do positivists agree to the generally accepted principles
- No, unless they are codified.
✓ Theory of coordination
- States receive higher payoffs if they take identical or
symmetrical actions than if they do not. Both cooperation and
coordination can be robust in bilateral contexts, but will not
likely occur in multilateral contexts.

✓ Res judicata ✓ International Community

- Literally means “a matter judged” - The body of juridical entities which are governed by the law of
- Is the principle that a matter may not, generally, be relitigated nations.
once it has been judged on the same merits
✓ Elements of a State
✓ Stare decisis 1. People
- Not applicable in international law as provided for by Article 59 2. Territory
of the UN Charter, and so the decision of a court in one case will 3. Government
have only persuasive value in the decision of a subsequent case 4. Sovereignty

✓ Ex aequo et bono ✓ What is the United Nations?

- A decision made ex aequo et bono means that the court decided - An international organization created at the San Francisco
the case based not on legal considerations but solely on what is Conference held in the US from April 25 to June 26, 1945. UN
fair and reasonable in the circumstances of the case.

8 JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes
succeeded the League of Nations and is governed by a charter
that came into force on October 24, 1945.
- A body possessed not only of juridical but also of international
personality and vested with prerogatives normally pertaining to
sovereign states.
✓ When was the UN established?
1. June 12, 1941 – London Declaration
- Several members of the British Commonwealth and a number of
governments-in-exile
- “To work together, and with other peoples, in war and in peace
toward economic and social progress.”
2. August 14, 1941 – Atlantic Charter
- Signed by President Franklin D. Roosevelt and Prime Minister
Winston Churchill
- “A peace which will afford to all nations the means of dwelling
in safety within their own boundaries and which will afford
assurance that all men in all lands may lead out their lives in
freedom from fear and want.”
3. January 1, 1942 – United Nations Declaration
- Signed by 26 countries and later adhered by 21 others,
- The signatories all pledged to employ their full resources against
the Axis powers and “not to make a separate armistice or peace
with the enemies”
4. October 30, 1943 – Moscow Declaration
- Signed by representatives of China, the Soviet Union, the United
Kingdom and the United States
- “The necessity of establishing at the earliest possible date a
general international organization, based on the principle of
sovereign equality of all peace-loving states, and open to
membership by all such states, large and small, for the
maintenance of international peace and security.
5. December 1943 – Teheran Conference
9 JPEDLP
- Roosevelt, Churchill and Stalin acknowledge “the supreme
responsibility resting upon us and all the United Nations to make
a peace which will command the goodwill of the overwhelming
mass of the peoples of the world and banish the scourge and
terror of war for many generations.”
6. August to October 1944 - Dumbarton Oaks Proposal
- Prepared at a conference in Washington by the representatives
of the United Kingdom, the U.S.S.R. and the United States, later
joined by China.
- Initial blueprint of the Organization
- Security Council was conceived as the key body of the United
Nations, with the conferees and France as its permanent
members.
7. February 11, 1945 - Yalta Conference
- Held in Crimea
- Voting rules in the organ were agreed upon by Roosevelt,
Churchill and Stalin.
8. April 25, 1945 – June 26, 1945 – San Francisco Conference
- Delegates of 50 nations met for the preparation of the charter of
the international organization
✓ Is the Philippines an original member of the UN?
- Yes.
✓ Does the UN possess a juridical personality?
- Yes.
✓ What are its capacities?
1. To contract;
2. To acquire and dispose of immovable and movable property;
3. To institute legal proceedings
✓ Charter Supremacy Principle
- Article 103, UN Charter
 PUBLIC INTERNATIONAL LAW – Sy Notes
-In the event of a conflict between the obligations of the members
of the UN under the Charter and their obligations under any
other international agreement, their obligations under the
Charter shall prevail.
✓ Is the UN Charter applicable only to UN members?
- Article 2, paragraph 6, UN Charter
- No. The Organization shall ensure that States which are not
members of the UN shall act in accordance with its principles so
far as may be necessary for the maintenance of international
peace and security.
✓ UN Charter – Treaty or Constitution?
- Both. It may be considered a treaty because it derives its binding
force from the agreement of the parties to it. In another sense, it
may be regarded as a Constitution in so far as it provides for the
organization and operation of the different organs of the UN.
✓ Can you amend the UN Charter? How?
- Shall come into force when they have been adopted by a vote of
two-thirds of the members of the General Assembly and ratified
in accordance with their respective constitutional processes by
two-thirds of the members of the UN, including all the
permanent members of the Security Council.
✓ How is the General Assembly convened?
- They meet in regular annual session beginning on the third
Tuesday of September or in special session at the call of a
majority votes of its members or at the request of the Security
Council.
✓ What is the voting requirement?
- For important questions, two thirds of those present and voting.
- For all other matters and the determination of whether or not a
question is important, a majority of those present and voting.
✓ Purposes of the UN
- Article 1, UN Charter
1. Maintain international peace and security
10
2. Develop friendly relations among nations
3. Achieve international cooperation
4. Center for harmonizing actions of nations for attainment of
these common goals.
✓ Fundamental Principles of the UN
- Article 2, UN Charter
1. The Right of Equality
2. Pacta sunt servanda – good faith cooperation
- Pacts must be respected
- Codified in Article 26, Vienna Convention of the Law of
Treaties
- Every treaty in force is binding upon the parties to it and must
be performed by them in good faith.
3. Settlement of international disputes by peaceful means – ICJ
4. Refrain from threat or use of force upon the territorial
integrity or political independence
5. Cooperation in international relations
6. Applicability to non-member states
7. Domestic jurisdiction clause
- As long as the matter remains internal, the same cannot be the
subject of intervention by the UN.
EXCEPTIONS
a. Where internal conflict aggravates into a threat to or an
actual breach of international peace and security
b. Parties voluntarily invoke and submit to the jurisdiction of
the UN for the settlement of the dispute
✓ How many members of the UN
- 193
✓ Kinds of Membership
1. Original
- Those states which having participated in the United Nations
Conference on International Organization at San Francisco.
- Also included, despite not being states at that time: Philippines,
India, Lebanon and Syria
- Ukraine and Byelorussia, also included, despite being members
of the USSR.
JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes
- 51 original members, including Poland, who was unable to
participate in the drafting of the Charter
2. Elective
✓ How many original members
- 51
✓ Qualifications for membership
1. It must be a state.
2. It must be peace-loving.
3. It must accept the obligations of the Charter.
4. It must be able to carry out these obligations.
5. It must be willing to carry out these obligations.
✓ Is recommendation by the Security Council a condition
precedent?
- Article 4, paragraph 2, UN Charter
- Yes. The admission of any such state to membership in the UN
will be effected by a decision of the General Assembly upon the
recommendation of the Security Council.
✓ May a UN member be suspended
- Yes. Upon admission: effected by two-thirds of those present
and voting in the General Assembly upon the favorable
recommendation of at least nine members of the Security
Council, including its permanent members.
✓ Valid grounds for suspension
- Repeated disobedience
✓ Voting requirement
- Two thirds of those present and voting in the General Assembly
upon the favorable recommendation of at least nine members of
the Security Council, including its permanent members.
✓ May the suspension be lifted? How?
- Suspension may be lifted only by the Security Council also
qualified by majority vote
11
✓ Effect of Suspension
1. Prevent it from participating in meetings of the General
Assembly.
2. Prevented from being elected or continuing to serve in the
Security Council or the Trusteeship Council
3. Nationals of the suspended member may, however, continue
serving in the Secretariat and the ICJ
✓ Expulsion of Member States
- Persistently violated the principles of the Charter may be
expelled by two-thirds vote of those present and voting in the
General Assembly upon the recommendation of the Security
Council by a qualified majority vote.
- The aim is to provide for a stronger penalty than mere
suspension
✓ Withdrawal from the UN
- No specific provision in the Charter so as not to encourage
successive withdrawals
- Special Report
a. The Organization was revealed to be unable to maintain
peace or could do so only at the expense of law and justice
b. The member’s rights and obligations as such were changed
by a Charter amendment in which it had not concurred or
which it finds itself unable to accept
c. An amendment duly accepted by the necessary majority
either in the General Assembly or in a general conference is
not ratified.
✓ Principal Organs of the UN? What are they?
1. General Assembly
2. Security Council
3. Economic and Social Council
4. Trusteeship Council
JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes

5. International Court of Justice 3. Election of members of the Economic and Social Council;
6. The Secretariat 4. Election of members of the Trusteeship Council;
5. Admission of new members to the United Nations;
6. Suspension of the rights and privileges of membership;
✓ Subsidiary Organs 7. Expulsion of members;
1. Military Staff Committee 8. Questions relating to the operation of the trusteeship system;
2. International Law Commission 9. Budgetary questions
3. Commission on Human Rights
✓ Is the determination of whether or not a question is important
✓ Specialized Agencies an important question?
1. World Health Organization - Yes.
2. International Monetary Fund
3. Technical Assistance Board ✓ General Assembly Resolution
- Resolutions of the General Assembly are considered to be mere
✓ What is the General Assembly, composition and functions recommendations and not legally binding upon the members as
THE GENERAL Essentially a global forum for the exchange and a matter of Charter law.
ASSEMBLY debate of ideas
Meets in regular annual session beginning on the ✓ Must members be able to carry out the decisions of the Security
third Tuesday of September or in special session Council?
at the call of the majority of its members or at the - Yes.
request of the Security Council
COMPOSITION Consists of all the members of the Organization; ✓ Why are the General Assembly Resolutions not binding?
each of which is entitled to five representatives - Does not have the force of law, merely persuasive
and five alternates as well as such technical staff
as it may need ✓ Security Council, its composition, functions and powers
FUNCTIONS 1. Deliberative THE The principal organ of the United Nations that
2. Supervisory SECURITY has been conferred by the members of
3. Financial COUNCIL Organization with the primary responsibility for
4. Elective the maintenance of international peace and
5. Constituent security.
COMPOSITION 15 members:
✓ Voting rules in the General Assembly 5 permanent members: China, France, Russia,
- Each member has one vote United Kingdom of Great Britain and Northern
Island and the United States of America
✓ Examples of Important questions and is this list exclusive? 10 non-permanent members: elected by the
1. Recommendations with respect to the maintenance of General Assembly for a term of 2 years without
international peace and security; eligibility for immediate reelection.
2. Election of non-permanent members of the Security Council;

12 JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes
FUNCTIONS 1. To maintain international peace and security
in accordance with the principles and
purposes of the United Nations;
2. To investigate any dispute or situation which
might lead to international friction;
3. To recommend methods of adjusting such
disputes or the terms of settlement;
4. To formulate plans for the establishment of a
system to regulate armaments;
5. To determine the existence of a threat to the
peace or act of aggression and to recommend
what action to be taken
6. To call on members to apply economic
sanctions and other measures not involving
the use of force to prevent or stop aggression;
7. To take military action against an aggressor;
8. To recommend the admission of new
Members;
9. To exercise the trusteeship functions of the
United Nations in strategic areas;
To recommend to the General Assembly the
appointment of the Secretary-General and,
together with the Assembly, to elect the Judges
of the International Court of Justice.
✓ Yalta Voting Formula
- This proposal subjected voting in the Security Council to
unanimity of the permanent members, both with regard to
enforcement action and the peaceful settlement of disputes,
although in the latter case States party to the dispute were
obliged to abstain.
✓ Reason for distinction of the Big Five
1. To ensure that no peacekeeping action would be taken against
the will of a country considered sufficiently powerful to opposed
the council’s decision with military force and so open up the
possibility of a third major international war;
13
2. To ensure that before the Council invokes its authority in
peacekeeping action, the big powers should first resolve their
difference on how a particular crisis should be handled;
3. To ensure that the decisions of the big Powers would not be
overridden by a majority vote of the smaller nations.
✓ Can they block a certain issue?
- Veto
✓ Non-procedural matters
- Are to be decided by an affirmative vote of nine members
including the concurring votes of the permanent members.
✓ Double veto power and is it still in practice?
- No, since the president of the Council could rule that the
procedural/non-procedural question is itself procedural and not
subject to veto; presidential rulings in this regard are final unless
reversed by nine votes, with no State having a veto power.
✓ Economic and Social Council
THE Should exert efforts towards:
ECONOMIC 1. Higher standards of living, full employment,
AND SOCIAL and conditions of economic and social
COUNCIL progress and development;
2. Solutions of international economic, social,
health and other related problems, and
international, cultural and educational
cooperation; and
3. Universal respect for, and observance of,
human rights and fundamental freedoms for
all without distinction as to race, sex,
language or religion.
COMPOSITION 54 members elected by the General Assembly
FUNCTIONS 1. May make or initiate studies and reports with
respect to international economic, social,
cultural, educational, health, and related
matters
JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes
2. Make recommendations for the purpose of
promoting respect for, and observance of,
human rights and fundamental freedoms for
all
3. Prepare draft conventions for submission to
the General Assembly
Call international conferences on matters falling
within its competence
✓ Trusteeship Council, its powers and functions
TRUSTEESHIP The organ that is responsible for administering
COUNCIL trusteeship territories that are not yet self-
governing.
COMPOSITION 1. Members that are administering trust
territories;
2. Permanent members of the Security
Council
3. As many other members as the General
Assembly as may be necessary to ensure
that the total number of members of the
Trusteeship Council is equally divided
between those Members of the United
Nations which administer trust territories
and those which do not.
POWERS AND 1. Consider reports given by the administering
FUNCTIONS authorities
2. Accept petitions and examine them in
consultation with the administering
authorities
3. Provide for periodic visits to trust territories
at times agreed upon by administering
authorities; and
4. Take such other actions in conformity with
the terms of the questionnaire on the
political, economic, social and educational
advancement of the inhabitants of the trust
territories.
14
✓ International Court of Justice, composition, functions and
powers
INTERNATIONAL The principal judicial organ of the United
COURT OF Nations and the successor of the Permanent
JUSTICE Court of International Justice of the League of
Nations.
COMPOSITION 15 Members; no two of whom may be
nationals of the same State
Elected for 9 years and may be re-elected
POWERS AND 1. To decide international legal disputes
FUNCTIONS submitted to it by States in accordance
with International Law.
✓ International Legal Dispute
- Disagreement between States on a question of law or fact, a
conflict, a clash of legal views or of interests.
✓ Jurisdiction of the ICJ
- Between State parties
✓ Types of Issues
- International Legal Dispute
- Disagreement between states on a question of law or fact, or a
clash of legal views or interest
✓ Membership in the ICJ
- Shall be independent judges, elected regardless of their
nationality from among persons of high moral character, who
possesses the qualifications required in their respective countries
for appointment to the highest judicial offices, or are
jurisconsults of recognized competence in International Law.
✓ How are they elected?
- Two thirds vote of the General Assembly
✓ Who are allowed to be parties in the ICJ?
- Art. 34, ICJ Statute
- Only States may be parties in contentious cases before the ICJ.
JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes
✓ How does the ICJ acquire jurisdiction?
- The ICJ acquires jurisdiction when:
1. The State parties submit themselves to its jurisdiction
2. Through consent via treaties and conventions
3. Optional Jurisdiction Clause
4. Special Agreement – state parties jointly submit to the ICJ
via compromis
5. Forum prorogatum – defendant state after institution of
proceeding assents to the case filed
✓ Optional Jurisdiction Clause
- Article 36, ICJ Statutes
- The consent of States is needed for the court to acquire
jurisdiction over them
✓ What are the preconditions before the ICJ may give advisory
opinion?
1. The advisory opinion must be requested by an organ duly
authorized to seek it under the UN Charter;
2. It must be requested on a legal question;
3. Except in the case of the General Assembly or the Security
Council, that question should be one arising within the scope of
the activities of the requesting organ.
✓ Can any organ of the UN secure an advisory opinion?
- Art. 96, UN Charter
- Only the principal organs of the UN and other specialized
agencies which may be so authorized by the General Assembly,
may request the ICJ to give an advisory opinion on any legal
question.
✓ Can the Secretariat bring to the Security Council any matter
which it sees as a threat to International security?
- Yes, as provided for by Articles 98 and 99 of the UN Charter,
the Secretary-General may bring to the Security Council any
matter which in his opinion may threaten the maintenance of
international peace and security
15
✓ Secretariat and its composition, powers and functions
THE Chief administrative organ of the UN
SECRETARIAT
COMPOSITION Secretary-General and such staff as the
Organization may require
Shall be appointed by the General Assembly
upon the recommendation of the Security
Council (subject to veto power)
POWERS AND 1. Shall be the Chief Administrative Officer of
FUNCTIONS the UN.
2. Shall act in that capacity in all the meetings
of the General Assembly, Security Council,
Economic and Social Council and of the
Trusteeship Council
3. Perform such other functions as entrusted to
him by these organs
4. Make an annual report to the General
Assembly on the work of the Organization
5. Bring to the Security Council any matter
which in his opinion may threaten the
maintenance of international peace and
security.
✓ What is a State?
- Article 1, Montevideo Convention
- An entity that has a defined territory and permanent population,
under the control of its own government, and that engages in, or
has the capacity to engage in, formal relations with such other
entities.
- The basic unit of the international community and is the
principal subject of international law.
✓ What are the Rights of a State?
1. Right to Existence and Self Defense
2. Right to Equality
3. Right to Property and Jurisdiction
4. Right to Legation
JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes

1. Universal – when one State completely absorbs the international

✓ What right is the most important? personality of another State and thereby becomes the sole
- Right to existence and self defense representative at law of the rights and obligations of the latter
State.
2. Partial – when an existing State takes over, whether by force or
voluntary cession, the sovereignty of a portion of territory
✓ How is a state created? formerly belongs to another State.
1. Revolution (USA) Example: Annexation of California by the United States in 1847.
2. Unification (Italy)
3. Succession (Bangladesh) ✓ Consequence of State Succession
4. Assertion of Independence (Philippines) 1. Naturalization en masse – the allegiance of the inhabitants of the
5. Agreement (Kingdom of Netherlands) predecessor state in the territory affected is transferred to the
6. Attainment of Civilization (Japan) successor state.
2. The political laws of the former sovereign are automatically
✓ Principle of State Continuity abrogated and may be restored only by a positive act on the part
- From the moment of its creation, the state continues as a juristic of the new sovereign
being notwithstanding changes in its circumstances, provided 3. Treaties of a political and even commercial nature are
that they do not result in the loss of any of its essential elements. discontinued.

✓ Modes for extinction of a State
1. Population completely wiped out by an epidemic or
thermonuclear explosion
2. Emigrate en masse
3. Government overthrown without being replaced resulting in
anarchy
4. The State may merge with another State
5. Its territory may be dismembered or annexed by others
6. A federation may be broken up or dissolved by the withdrawal
of all its members.
✓ State succession
- The shift of responsibility over a territory from one State to
another State.
- Takes place when one state assumes the rights and some of the
obligations of another because of certain conditions of the latter
✓ Types of Succession and examples
✓ What happens to the rights and liabilities when it comes to
succession?
- All the rights of the predecessor state are inherited by the
successor state but this is not so where liabilities are concerned.
✓ Clean Slate Doctrine, is this an acceptable view?
- A newly-independent State begins its existence free of the
obligations of its Predecessor State.
✓ Succession of Government and its consequences
1. Where the new government was organized by virtue of a
constitutional reform duly ratified in a plebiscite, the obligations
of the replaced government are also completely assumed by the
latter.
2. Where the new government was established through violence, it
may lawfully reject the purely personal or political obligations
of the predecessor government.
✓ Recognition

16 JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes

- The willingness to deal with another State or government government may be accorded
representing the State as a member of the international that of a mere colony international
community. personality only in
- Its primary function is to acknowledge as a fact something which connection with the
has hitherto been uncertain, namely the independence of a State, hostilities they are
and to declare the recognizing State’s readiness to accept the waging.
normal consequences of that fact, namely the usual courtesies of ✓ Kinds of Recognition
international intercourse. 1. Express – it is definite and explicit statement is made to that
effect.
✓ Theories in Recognition and what is the majority view? 2. Tacit or implied – when the older members enter into official
CONSTITUTIVE THEORY DECLARATORY THEORY intercourse with the new member by sending diplomatic
A State is, and becomes and That statehood is independent of representatives to it, concluding treaties with it, or otherwise
International Person through recognition; that the act of entering into formal relations with it.
recognition only and exclusively. recognition by other States in
international system is purely ✓ Criteria for Recognition of a State
declaratory. 1. Objective Test
A state does not become a subject A state becomes a subject of 2. Subjective Test
of International Law until it International law the moment it
meets with the approval of other meets the conditions of statehood ✓ Recognition of Government
States. notwithstanding the lack of - An acknowledgment that it is in effective control of the State.
recognition by the international - Not dependent upon the constitutionality of the government or
committee. its legitimacy under its own domestic laws, but solely on its
- The better view is that the granting of recognition to a new State effectiveness.
is not constitutive, but a declaratory act; it does not bring into
legal existence a State which did not exist before. ✓ Distinction on the grounds if the recognition of government on
whether or not if it came to power through peaceful means
✓ Who extends recognition of states in the Philippines? Is it final? 1. Responsibility for acts of rebels resulting through injury to
- The President nationals of recognizing state shall be shifted to the rebel
- Treaties: Subject to the ratification of 2/3 votes of the Senate government
2. The legitimate government recognizing the rebels as belligerents
✓ Objects of Recognition shall observe laws or customs of war in conducting hostilities
STATE GOVERNMENT BELLIGERENT 3. Third states recognizing belligerency should maintain neutrality.
COMMUNITY ** Generally, they should not be recognized. If recognized, States
Generally held to be May be withdrawn Does not produce the may be held liable or must remain neutral.
irrevocable and and does not same effects as the
imports the necessarily signify recognition of states ✓ Landmark Doctrines in Recognition of Sates and Governments
recognition of its the existence of a and governments DOCTRINE FOREMOST EXPLANATION
government state as the because the rebels are EXPONENT/S

17 JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes

Wilson / Tobar Ecuadorian This precludes recognition of Estrada Mexican Dealing or not dealing with the
Doctrine Foreign government established by Doctrine Minister government established through
Minister Tobar revolution, civil war, coup d’etat Genaro Estrada a political upheaval is not a
and US or other forms of internal judgment of the legitimacy of
President violence until the freely elected said government.
Woodrow representatives of the people
Wilson have organized a constitutional
government. ✓ De facto v. de jure recognition
Kelsen Hans Kelsen A state violates international law DE FACTO DE JURE
Doctrine and thus infringes upon the rights Impliedly a government which is Lawfully in power even though it
of other states if it recognizes a in control but illegally so retains little actual power
state community which does not Provisional Relatively permanent
fulfill the requirements of It does not vest title to properties It vests title to properties of
international law. of government abroad government abroad
Betancourt Venezuelan Antipathy for the non- Limited to in certain juridical Brings about full diplomatic
Doctrine President democratic rule, which denied relations relations
Romula diplomatic recognition to any
Betancourt regime, right or left, which came ✓ Types of De Facto Government
to power by military force. GOVERNMENT DE Government that gets possession and
Lauterpacht Hersch This precludes that the FACTO IN A PROPER control of, or usurps, by force or by the
Doctrine Lauterpacht recognition of an entity which is LEGAL SENSE voice of the majority
not legally a state is wrong GOVERNMENT OF Established and maintained by military
because it constitutes an abuse of PARAMOUNT FORCE forces who invade and occupy a
the power of recognition. It territory of the enemy in the course of
acknowledges a community, war
which is not, in law, independent INSURRECTION Established as an independent
and which does not therefore government by the inhabitants of a
fulfill the essential requirements country who rise in insurrection
of statehood as an independent against a parent State
state. It is, accordingly, a
recognition which an ✓ Effects of recognition of States and government
international tribunal would 1. Recognition of a New State – bears upon the admission of a new
declare not only to constitute a political group to membership in the international community
wrong but probably also be in 2. Recognition of Government – involves a decision of whether a
itself invalid. particular government claiming to represent the political group
Stimson US Secretary of This precludes recognition of seeking recognition as a State is actually entitled to represent it.
Doctrine State Henry any government established as a 3. Right to possession of properties of predecessor state for the
Lewis Stimson result of external aggression. recognizing state.

18 JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes
4. All acts of the recognized state or government are validated
retroactively, preventing the recognizing sate from passing upon
their legality in its own courts
5. Full diplomatic relations
6. Right to sue in Courts of recognizing state
✓ Rights of States
1. The right to independence and hence to exercise freely, without
dictation by any other State, all its legal powers, including the
choice of its own form of government.
2. The right to exercise jurisdiction over its territory and over all
persons and things therein, subject to the immunities recognized
by International Law.
3. The right to equality in law with every other State.
4. Every State has the right of individual or collective self-defense
against armed attack.
5. The right to own property and jurisdiction
6. The right to legation
✓ Duties of States
1. To refrain from intervention in the internal or external affairs of
any other State
2. To refrain from fomenting civil strife in the territory of another
State, and to prevent the organization within its territory of
activities calculated to foment such civil strife.
3. To treat all persons under its jurisdiction with respect for human
rights and fundamental freedoms, without distinction to race,
sex, language, or religion.
4. To ensure that conditions prevailing in its territory do not
menace international peace and order.
5. To settle its disputes with other States by peaceful means in such
a manner that international peace and security, and justice are
not endangered.
6. To refrain from resorting to war as an instrument of national
policy, and to refrain from threat or use of force against the
territorial integrity or political independence of another State, or
19
in any other manner inconsistent with International Law and
order.
7. To refrain from giving assistance to any State which is acting in
violation of Article 9, or against which the United Nations is
taking preventive or enforcement action.
8. To refrain from recognizing any territorial acquisition by
another State acting in violation of Article 9.
9. To carry out in good faith its obligations arising from treaties
and other sources of International law, and it may not invoke
provisions in its constitution or its laws as an excuse for failure
to perform this duty.
10. To conduct its relations with other States in accordance with
International Law and with the principle that the sovereignty of
each State is subject to the supremacy of International Law.
✓ Individual or Collective Self-defense
- Considered the most comprehensive of the attributes of the state
because all its other rights are supposed to flow or be derived
from it.
- The state may take such measures, including the use of force, as
may be necessary to resist any danger to its existence.
- Recognized by the UN Charter and the Draft Declaration of the
Rights and Duties of States
✓ Requisites of Self-Defense
- Article 51, UN Charter
1. Presence of an armed attack
- A necessity of self-defense instant, overwhelming and leaving
no choice of means and no moment for deliberation.
- The right may be resorted to only upon a clear showing of a
grave or actual danger to the security of the state.
- The self-defensive measures must be limited by the necessity
and kept clearly within it.
✓ What is Aggression?
- Article 1, Definition of Aggression adopted by the UN General
Assembly
JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes
- The use of armed force by a State against the sovereignty,
territorial integrity or political independence of another State, or
in any other manner inconsistent with the Charter of the United
Nations, as set out in this definition.
✓ Acts of Aggression
- Article 3, Definition of Aggression adopted by the UN General
Assembly
1. The invasion or attack by the armed forces of a State of the
territory of another State, or any military occupation,
however temporary, resulting from such invasion or attack
or any annexation by the use of force of the territory of
another State or part thereof;
2. Bombardment by the armed forces of a State against the
territory of another State;
3. The blockade of the ports or coasts of a State by the armed
forces of another State;
4. An attack by the armed forces of a State on the land, sea or
air forces, or marine and air fleets of another State;
5. The use of armed forces of one State which are within the
territory of another State with the agreement of the receiving
State, in contravention of the conditions provided for in the
agreement or any extension of their presence in such territory
beyond the termination of the agreement;
6. The action of a State in allowing its territory, which it has
placed at the disposal of another State, to be used by that
other State for perpetrating an act of aggression against a
third State;
7. The sending by or on behalf of a State of armed force against
another State of such gravity as to amount to the acts listed
above, or its substantial involvement therein.
** This is not an exclusive list.
✓ Must there be a declaration of war?
20
- Article 2, Definition of Aggression adopted by the UN General
Assembly
- No.
✓ May acts of aggression be justified?
- Article 5, Definition of Aggression adopted by the UN General
Assembly
- No consideration of whatever nature, whether political,
economic, military or otherwise, may serve as a justification for
aggression.
- However, Preventive Self-defense may be exercised if the
following conditions are met:
1. For self-defense against an actual armed attack
2. That such is reported immediately to the Security Council
3. Such action shall not in any way affect the right of the
Security Council to take action at any time
✓ What is sovereignty?
- The independent personality of the State in relation with other
members of the international community.
- The supreme, absolute, and uncontrollable power by which any
independent State is governed.
Jus sumna imperii
- The absolute right to govern
- With the exception of when it subjects itself to restrictions and
limitations voluntarily agreed to by the State
✓ External v. Internal sovereignty
EXTERNAL SOVEREIGNTY INTERNAL SOVEREIGNTY
Signifies the freedom of the state The power of the state to direct its
to control its own foreign affairs, domestic affairs, as when it
as when it concludes treaties, establishes its government, enact
makes war or peace, and laws for observance within its
maintains diplomatic and territory or adopts economic
commercial relations. policies.
✓ Obligations erga omnes
- In relation to everyone
JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes

- Obligations owed by States towards the International - Only means freedom from control by any other state or group of
Community. states and not freedom from the restrictions that are binding on
a. Obligations under general International Law all states forming the family of nations.
b. Obligations under a multilateral treaty
1. Prohibition of acts of aggression ✓ Mare liberum
2. Prohibition of genocide - Plea for the freedom of seas
3. Piracy - Arose because of a dispute with Portugal and the Netherlands
4. Slavery - The high seas should be free for everyone, but should belong to
5. Racial Discrimination none
6. Obligations concerning the protection of human rights 1. Its resources were inexhaustible;
7. Obligations relating to self-determination 2. Physical occupation is impossible
8. Obligations relating to the environment 3. Demarcation of boundaries is impossible;
4. The oceans are so immense that conflicting resource use is
✓ Remedy in case of obligations erga omnes impossible.
1. Cessation of the internationally wrongful act
2. Performance of the obligation of reparation in the interest of the ✓ Intervention
State, entity or individual which is specially affected by the - Denotes almost any act of interference by one State in the affairs
breach of another; but in a more special sense, it is confined to acts of
3. Restitution should be effected unless materially impossible. interference either in the domestic or foreign affairs of another
State which violate that State’s independence.
✓ De jure v. de facto sovereignty - May be physical, political or economic
DE JURE/RESIDUAL DE FACTO/NOMINAL
SOVEREIGNTY SOVEREIGNTY ✓ Acts of Intervention
Gives the territorial sovereign the May receive considerable powers - The interference must take an imperative force; it must either be
power to grant or renew of administration amounting to a forcible or backed by the threat of force.
concessions with regard to its delegation of the exercise of Justified Intervention:
territory. many of the powers of the 1. When it is justified as a measure of self-defense by the State;
territorial sovereign to the 2. An act of legitimate reprisal;
possessor for a particular period. 3. When it takes place under a treaty giving such right to the
intervening State;
✓ Independence 4. When it is done for humanitarian reasons.
- The right to exercise therein, to the exclusion of any other State, 5. When it is decreed by the Security Council as a preventive
the functions of a State. or enforcement of action for the maintenance of international
- The normal condition of States according to International Law; peace and security
it may also be described as sovereignty by which it is meant that 6. When requested from sister states or from the United Nations
the State has over it no other authority than that of International by the parties to a dispute or by a state beset by rebellion.
Law.
✓ Reprisal

21 JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes
- Denotes any act of forcible or coercive measures whereby one
State seeks to exercise a deterrent effect or obtain redress or
satisfaction, directly or indirectly, for the consequences of the
illegal act of another state which has refused to make amends for
such illegal acts.
✓ Acts of Reprisal
1. Institution of Pacific Blockade
2. Quarantine
✓ Drago Doctrine and its background
- Luis Drago (1859-1921) was a former Minister of Foreign
Affairs of Argentina
- That a public debt cannot give rise to the right of intervention,
and much less to the occupation of the soil of any American
nation by any European power.
- Codified in the 1907 Hague Convention on the Limitation of
Employment of Force for Recovery of Contract Debts
“the Contracting Powers agree not to have recourse to armed
force for the recovery of contract debts claimed from the
government of one country by the government of another
country as being due to its nationals.”
✓ Porter Resolution
- Intervention was permitted if the debtor state refused an offer to
arbitrate the creditor’s claim, or having agreed to arbitrate,
prevented agreement on the compromise, or having agreed
thereto, refused to abide by the award of the arbitrator.
✓ Auto-limitation of sovereignty
- The property of a State-force due to which it has the exclusive
capacity of legal self-determination and self-restriction.
- Any State, by its consent, express or implied, submits to a
restriction of its sovereign rights.
✓ Reciprocity
22
- Usually the underlying consideration behind the principle of
auto-limitation.
- When a State consents to a partial surrender of sovereignty, it is
usually in consideration of the reciprocal commitments of the
other contracting States.
✓ Monroe Doctrine
- Based on the State of the Union Address of President James
Monroe of the United States in 1823
- Actually authored by John Quincy Adams
- The United States was informing the powers of the Old World
that the American continents were no longer open to European
colonization, and that any effort to extend European Political
influence into the New World would be considered by the
United States as an act of aggression.
- Main principles:
1. Non-colonization
2. Non-intervention
3. Separate spheres of influence for the Americas and Europe.
✓ Roosevelt Corollary
- Theodore Roosevelt
- Justification of America’s intervention throughout the Western
Hemisphere
- “Any country whose people conduct themselves well can count
upon our hearty friendship. Chronic wrongdoing, or an
impotence which results in a general loosening of the ties of
civilized society, may in America, as elsewhere, ultimate require
intervention by some civilized nation.
✓ Contingent Sovereignty
- Sovereignty is contingent upon the fulfillment of certain
fundamental State obligations, particularly to its own people.
- Failure to do so may warrant intervention
✓ Doctrine of Equality of States
JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes
- All States are equal in International Law despite their obvious
factual inequalities as to size, population, wealth, strength, or
degree of civilization.
- All States have an equal right to the enjoyment of all their
respective attributes as members of the family of nations.
- Par in parem non habet imperium
Even the strongest state cannot assume jurisdiction over another
state, no matter how weak, or question the validity of its acts in
so far as they are made to take effect within its own territory.
✓ Consequences that follow from the doctrine of equality of states
1. When a question arises which has to be settled by consent, every
State has a right to a vote and to one vote only;
2. The vote of the weakest State has as much weight as the vote of
the most powerful;
3. No State can claim jurisdiction over another;
4. The courts of one State do not as a rule question the validity of
the official acts of another State in so far as those acts purport to
take effect within the latter’s jurisdiction.
✓ Act of State Doctrine
- A state should not inquire into the validity of the public acts of
another state done within the territory of the latter.
✓ Doctrine of State Immunity
- A state enjoys the immunity from the exercise of jurisdiction of
another state except when:
1. It has given consent
2. It has waived its immunity
a. When it gives consent at the time the proceeding is
instituted
b. When it takes steps relating to the merits of the case
before invoking immunity
c. When by treaty or contract it had previously given
consent
23
d. When by law or regulation in force at the time the
complaint arose it has indicated that it will consent to the
institution of the proceedings
3. It has voluntarily submitted itself to the jurisdiction of the
court concerned
✓ Factual equality v. legal equality
- In the sense, it is apparent that absolute equality among states is
still a distant aspiration. As evidenced by the power of the Big
Five in the voting procedures of the Security Council, as well as
the elective membership of the Security Council where members
are to be distributed, and not equally at that, among several
specified regions.
- In the factual sense, the realities of international life, including
the greater stakes of the more populous states in the decision of
questions the entire community of nations. In the General
Assembly, for example, all members have one vote regardless of
the number of people they separately represent.
✓ Territory
- The fixed portion of the surface of the earth inhabited by the
people of the State.
- Must be permanent and indicated with precision
- Must be big enough to provide for the needs of the population
by should not be so extensive as to be difficult to administer or
defend from external aggression
✓ Modes of Acquisition
1. Discovery and Occupation
2. Prescription
3. Cession
4. Subjugation
5. Accretion
✓ Discovery and occupation
JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes

- Territory not belonging to any state is placed under the - Requires long, continued and adverse possession to vest
sovereignty of the discovering state. acquisitive title in the claimant.
- There is as yet no rule in international law fixing the period of
✓ Requisites possession necessary to transfer title to the territory from the
1. Possession – must be claimed on behalf of the state represented former to the subsequent sovereign.
by the discoverer and may be effected through a formal
proclamation and the symbolic act of raising the national flag in ✓ Cession
the territory. - A method by which territory is transferred from one state to
2. Administration another by agreement between them.
✓ Terra nullius - Being essentially consensual, transfer of title is effected upon the
- An unoccupied or un-owned land; that is, not claimed by any meeting of the minds of the parties and does not have to bide the
existing State. actual delivery of the ceded territory to the acquiring State.
Forced cession
✓ Res communes - Usually effected by sale, donation, barter or exchange, and even
- A thing common to all. by testamentary disposition
- Something enjoyed by everyone and not subject to exclusive Examples
acquisition. 1. USA’s purchase of Alaska from Russia in 1867
1. Open seas 2. Gift by Austria of Lombardy to France in 1859
2. Space (i.e., moon) 3. Exchange between Great Britain and Germany of the island
of Helgoland and the territory adjoining German East Africa
✓ Inchoate title of discovery in 1890
- Since an effective occupation must usually be a gradual process,
it is considered that some weight should be given to mere ✓ Subjugation
discovery. - When having been previously conquered or occupied in the
- A temporary right to exclude other States until the State of the course of war by the enemy, it is formally annexed to it at the
discoverer has had a reasonable time within which to make an end of that war.
effective occupation, or a sort of option to occupy which other
States must respect while it lasts. ✓ Is it still applicable?
- No, inasmuch as the UN Charter prohibits resort to threat or use
✓ Dereliction of force against the territorial integrity or political independence
- When the state exercising sovereignty over it physically of any State
withdraws from it with the intention of abandoning it altogether.
- Conditions: ✓ Accretion
1. Act of withdrawal - Accession cedat principali
2. Intention to abandon - Accomplished through both natural or artificial processes as by
gradual and imperceptible deposit of soil on the coasts of the
✓ Prescription country through the action of the water, by reclamation projects,
or through formation of islands.

24 JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes
✓ Components of Territory
1. Terrestrial Domain – refers to the land mass
a. Integrate (Iran)
b. Dismembered (USA)
c. Partly bounded by water (Burma)
d. Island (Iceland)
e. Mid-ocean archipelagoes (Philippines; Indonesia)
f. Coastal archipelagoes (Greece)
2. The Maritime and Fluvial Domain – bodies of water within the
land mass and the waters adjacent to the coasts of the state up to
a specified limit.
a. Rivers
o National Rivers – situated completely in the territory of
one State (Pasig River)
o Multi National Rivers – flows through the territories of
several States (Congo River, Africa; Mekong River,
Asia)
o International River – one that is navigable from the open
sea and is open to the use of vessels from all states.
(Rhine and the Danube, Europe)
o Boundary River – divides the territories of riparian
States. (St. Lawrence River, Canada and USA)
b. Bays – well-marked indentation whose penetration is in such
proportion to the width of its mouth as to contain landlocked
waters and constitute more than a mere curvature of the
coast.
o Historical Bays – whose waters have always been
considered internal by the international community.
(Cancale, France; El Arab, Egypt; Chesapeake, US;
Hudson, Canada; Zuyder, Holland)
3. The Aerial Domain – the airspace above the terrestrial domain
and the maritime and fluvial domain of the State, to an unlimited
altitude but not including outer space.
4. The Continental Shelf
✓ Territorial sea v. Internal waters
TERRITORIAL SEA INTERNAL WATERS
25
The belt of waters adjacent to the Article I, 1987 Constitution
coasts of the state, excluding the The waters around, between and
internal waters in bays and gulfs, connecting the islands of the
over which the state claims archipelago
sovereignty and jurisdiction.
Breadth of the Territorial Sea was Regardless of breadth and
reckoned at 3 nautical miles, or a dimension
marine league, from the low-
water mark.
✓ Baseline Theories
Baseline – the low-water mark along the coast from which the belt
of the territorial sea is measured.
NORMAL BASELINE STRAIGHT BASELINE
METHOD METHOD
The territorial sea is simply Straight lines are made to connect
drawn from the low-water mark appropriate points on the coast
of the coast, to the breadth without departing radically from
claimed, following its sinuosities its general direction.
and curvatures but excluding the
internal waters in bays and gulfs.
✓ Archipelago Doctrine
- Article I, Section 1 of the 1987 Constitution
- Straight baselines should be drawn to connect appropriate points
of the outermost islands without departing radically from the
general direction of the coast so that the entire archipelago shall
be encompassed as one whole territory.
- Embodied in the 1982 Convention on the Law of the Sea
✓ What is an archipelago?
- A group of islands, including parts of islands, interconnecting
waters and other natural features which are so closely
interrelated that such islands, waters and other natural features
form an intrinsic geographical, economic and political entity, or
which historically have been regarded as such.
JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes

✓ Bases of Jurisdiction
a. Territoriality Principle
- This is the primary basis of jurisdiction and it provides that a
State is free to legislate and enforce that legislation within its
territory.

SUBJECTIVE OBJECTIVE
FINALS PERIOD TERRITORIALITY TERRITORIALITY
If an activity takes place within Where the action takes place
✓ What is Jurisdiction? the territory of the forum State, outside the territory of the forum
- Jurisdiction is the authority exercised by a state over persons and then the forum state has the State, but the primary effect of
things within or sometimes outside its territory, subject to certain jurisdiction to prescribe a rule for that activity is within the forum
exceptions. that activity. State.
- It may be classified as either:
a. Personal b. Nationality principle
b. Territorial - The power exercised by a State over its nationals. It is based on
- May be exercised by a State over: the theory that a national is entitled to the protection of his state
a. Its nationals wherever he may be and is, therefore, bound to it by a duty of
b. The terrestrial domain obedience and allegiance.
c. The maritime and fluvial domain
d. The continental shelf ACTIVE NATIONALITY PASSIVE NATIONALITY
e. The open seas The basis for jurisdiction where A theory of jurisdiction based on
f. The aerial domain the forum State asserts the right the nationality of the victim.
g. Outer space to prescribe a law for an action
h. Other territories based on the nationality of the
actor.
INTERNATIONAL JURISDICTION
- The allocation of power and authority among the States. c. Protective Principle
- The State has jurisdiction over acts committed abroad by
✓ Categories of Jurisdiction nationals or foreigners which are prejudicial to its national
1. Jurisdiction to prescribe – to make its law applicable to security or vital interest.
persons or activities
2. Jurisdiction to adjudicate – to subject particular persons or
d. Universality Principle
things to juridical process; and - The State has jurisdiction over offense considered as universal
3. Jurisdiction to enforce and execute – to use the resources of crimes regardless of where committed and who committed them
government to induce or compel compliance with its law.

26 JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes

e. Passive Personality Principle b. Foreign state property, including embassies, consulates, and
- A State may claim jurisdiction to try an individual for offences public vessels engaged in non-commercial activities.
committed abroad which have affected or will affect nationals of c. Acts of State.
the state. d. Foreign merchant vessels exercising their rights of innocent
passage or arrival under stress.
f. Conflicts of Jurisdiction e. Foreign armies passing through or stationed in its territories
- It is apparent that more than one State may assert jurisdiction with its permission.
over any given act or omission in any given place. f. Such other persons or property, including organizations like
✓ Provisions in Philippine Law regarding Jurisdiction the United Nations, over which it may, by agreement waive
Article 14, Penal laws and those of public security and safety jurisdiction.
Civil Code shall be obligatory upon all who live or sojourn in
the Philippine territory, subject to the principles of ✓ Innocent passage v. Transit passage
public international law and to treaty stipulations. INNOCENT TRANSIT ARRIVAL UNDER
Article 15, Laws relating to family rights and duties, or to the PASSAGE PASSAGE STRESS
Civil Code status, condition and legal capacity of persons, are Navigation through The exercise of the May be due to lack of
binding upon citizens of the Philippines, although the territorial sea of a freedom of provisions,
living abroad. state for the purpose navigation and unseaworthiness of
Article 16, Intestate and testamentary succession, both with of traversing that sea overflight solely for the vessel, inclement
Civil Code respect to the order of succession and to the amount without entering the purpose of weather, or other
of successional rights and to the intrinsic validity of internal waters, or of continuous and cases of force
testamentary provisions, shall be regulated by the proceeding to expeditious transit of majeure, like pursuit
national law of the person whose succession is internal waters, or the strait between one by pirates.
under consideration, whatever may be the nature of making for the high part of the high seas
the property and regardless of the country wherein seas from or an exclusive
said property may be found. international waters, economic zone and
Article 2, Made the provisions of the Code enforceable not as long as it is not another part of the
Revised Penal only within the Philippine territory but also outside prejudicial to the high seas or an
Code its jurisdiction against those who should commit peace, good order or exclusive economic
any of the crimes enumerated in the said article. security of the coastal zone.
Revised Jurisdiction to tax our citizens, even if not residing state.
Internal in the Philippines.
Revenue Code INNOCENT PASSAGE TRANSIT PASSAGE
Applies through territorial seasApplies through straits
✓ Limitation of Jurisdiction Covers navigation only Covers navigation and overflight
- The State cannot exercise jurisdiction even within its own May be unilaterally suspended May not be unilaterally
territory over: suspended
a. Foreign states, heads of states, diplomatic representatives, Requires submarine and other No requirement specially
and consuls to a certain degree. underwater vehicles to navigate applicable to submarines

27 JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes

on the surface and to show their vessels, except only where they except only where they
flag do not compromise the peace of compromise the peace of the port.
In designation of sea lanes and Designation of sea lanes and the port.
traffic separation schemes, the traffic separation schemes is
coastal state shall only take subject to adoption by competent
account of the recommendations international organization upon
of the competent international proposal and agreement of states ✓ The Contiguous Zone
organization bordering the states - Protective jurisdiction
- It is a zone contiguous to the territorial sea of a coastal state
✓ Prohibited acts during innocent passage which may extend up to 24 nautical miles from the same baseline
a. Any threat or use of force against the sovereignty, territorial that is used in measuring the breadth of the territorial sea.
integrity or political independence of the coastal State, or in any - Convention on the Territorial Sea and the Contiguous Zone
other manner in violation of the principles of International Law - In a zone of the high seas contiguous to its territorial sea, the
embodied in the Charter of the United Nations; coastal state may exercise the control necessary to:
b. Any exercise or practice with weapons of any kind; a. Prevent infringement of its customs, fiscal, immigration or
c. Any act aimed at collecting information to the prejudice of the sanitary regulations within its territory or territorial sea
defense or security of the coastal State; b. Punish the infringement of the above regulations within its
d. Any act of propaganda aimed at affecting the defense or security territory or territorial sea.
of the coastal state;
e. The launching, landing or taking on board of any aircraft; ✓ Continental Shelf
f. The launching, landing or taking on board of any military a. The seabed and subsoil of the submarine areas adjacent to the
device; coast but outside the area of the territorial sea to a depth of 200
g. The loading or unloading of any commodity, currency or person meters or, beyond that limit, to where the depth of the
contrary to the customs, fiscal, immigration or sanitary laws and superjacent water admins of the exploitation of the natural
regulations of the coastal State; resources of the said areas
h. Any act of willful and serious pollution contrary to the LOS b. To the seabed and subsoil of similar areas adjacent to the coasts
convention; of islands.
i. Any fishing activities; - The coastal state has the sovereign right to explore the
j. The carrying out of research or survey activities; continental shelf to explore its natural resources and for this
k. Any act aimed at interfering with any systems of communication purpose it may erect on it such installations and equipment as
or any other facilities or installations of the coastal State; may be necessary.
l. Any other activity not having a direct bearing on passage.
✓ Rights of the Coastal State over the Continental Shelf
✓ English Rule v. French Rule - Exercises sovereign rights for the purpose of exploring it and
ENGLISH RULE FRENCH RULE exploiting its natural resources.
The coastal state shall have The flag state shall have
jurisdiction over all offenses jurisdiction over all offenses ✓ Patrimonial Sea
committed on board such committed on board such vessels, - Exclusive Economic Zone

28 JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes
- Extends 200 nautical miles from the coast or the baselines. All
living and non-living resources found therein belong exclusively
to the coastal state.
✓ Rights of the coastal State in the EEZ
a. Sovereign Rights
1. For the purpose of exploring and exploiting, conserving and
managing the natural resources, whether living or non-
living, of the waters superjacent to the seabed and of the
seabed and its subsoil;
2. With regard to other activities for the economic exploitation
and exploration of the zone, such as the production of energy
from the water, currents and winds;
b. Jurisdiction as provided for in the relevant provisions of LOS
Convention with regard to:
1. The establishment and us of artificial island, installations
and structures;
2. Marine scientific research;
3. The protection and preservation of the marine environment.
✓ Rights of other States in the EEZ
a. Freedom of navigation and overflight and of the laying of
submarine cables and pipelines
b. Other internationally lawful uses of the sea related to these
freedoms
c. States shall have due regard to the rights and duties of the coastal
State and shall comply with the laws and regulations adopted by
the coastal State in accordance with the provisions of the LOS
Convention and other rules of International Law.
✓ Open Seas
- Are res communes and available to the use of all states for
purposes of navigation, flying over them, laying submarine
cables or fishing.
- Means all parts of the sea that are not included in the territorial
sea or in the internal waters of any state.
29
- A state may exercise jurisdiction on the open seas in the
following circumstances:
a. Over its vessels
b. Over pirates
c. In the exercise of the right of visit and search
d. Under the doctrine of hot pursuit
✓ S.S. Lotus Case
FACTS:
The Lotus, a French steamer, and the Bozkourt, a Turkish vessel,
collided on the Aegean Sea, outside territorial waters, resulting in the
sinking of the latter ship and the death of several Turkish Nationals. The
Lotus docked at Constantinopole, where its office of the watch at the
time of the incident who is a French national, was tried and subsequently
convicted of manslaughter by the Turkish Courts. France protested on
the ground that the matter occurred outside the jurisdiction of Turkey.
ISSUE:
Whether or not Turkey or France has the jurisdiction over the
case at bar
RULING:
Neither the exclusive jurisdiction of each to the occurrences took
place on the respective ships would appear calculated to satisfy the
requirements of justice and effectively to protect the interests of the two
states. It is only natural that each should be able to exercise jurisdiction
and to do so in respect of the incident as a whole. It is therefore a case
of concurrent jurisdiction.
However, Article 11 of the Convention on the High Seas provides
that “in the event of a collision or of any other incident of navigation
concerning a ship on the high seas, involving the penal or disciplinary
responsibility of the master or of any other person in the service of the
ship, no penal or disciplinary proceeding may be instituted against such
persons except before the judicial or administrative authorities either of
the flag state or the state of which the person is a national.
✓ Right of Visit and Search
- Under the laws of neutrality, the public vessels or aircraft of a
belligerent state may visit and search any neutral merchant
JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes
vessel on the open seas and capture it if it is found or suspected
to be engaged or to have engaged in acts favorable to the other
belligerent. Such as:
a. The ship is engaged in piracy;
b. The ship is engaged in slave trade;
c. The ship is engaged in unauthorized broadcasting and the
flag State of the warship has jurisdiction because it is:
1. The flag State of the ship;
2. The State of registry of the installation;
3. The State of which the person is a national;
4. A State where transmissions can be received; or
5. A State where authorized radio communication is
suffering interference;
d. The ship is without nationality; or
e. Though flying a foreign flag or refusing to show its flag, the
ship is, in reality, of the same nationality as the warship.
✓ Right of Hot Pursuit
- Article III, Convention on the Laws of the Sea
- The right of hot pursuit allows the competent authorities of the
coastal State to pursue a foreign ship in the high seas when they
have good reason to believe that the ship has violated the laws
and regulations of that state.
a. The pursuit must be commenced when the foreign ship or
one of its boats is within the internal waters, the archipelagic
waters, the territorial sea or the contiguous zone of the
pursuing State.
b. The pursuit may only be continued outside the territorial sea
or the contiguous zone if the pursuit has not been interrupted.
c. The right of hot pursuit ceases as soon as the ship pursued
enters the territorial sea of its own State or of a third State.
d. The right of hot pursuit may be exercised only by warships
or military aircraft, or other ships or aircraft clearly marked
and identifiable as being on government service and
authorized to that effect.
✓ What is the authority of a State over the airspace above its
territory? How about the airspace above the high seas?
30
- Every State has complete and exclusive sovereignty over the
airspace above its territory.
- However, the airspace above the high seas shall also be res
communes.
✓ Five air freedoms
a. The freedom to fly across foreign territory without landing.
b. The freedom to land for non-traffic purposes.
c. The freedom to put down traffic originating in the state of the
aircraft.
d. The freedom to embark traffic destined for the state of the
aircraft.
e. The freedom to embark traffic destined for or to put down traffic
originating in a third state.
- No other state may exercise jurisdiction over such aircraft except
when:
a. The offense has effect on the territory of such state;
b. The offense has been committed by or against a national or
permanent resident of such state;
c. The offense is against the security of such state;
d. The offense consists of a breach of any rules or regulations
relating to the flight or maneuver of aircraft in force in such
state;
e. The exercise of jurisdiction is necessary to ensure the
observance of any obligation of such state under a
multilateral international agreement.
✓ What is hijacking in International Law?
- Hijacking is committed by any person who on board an aircraft
in flight shall unlawfully, by force or threat thereof, or by any
other form of intimidation, seizes, or exercises control of, that
aircraft, or attempts to perform any such act.
✓ What is the outer space?
- Is the area that lies beyond the airspace of the Earth. But as to
where it begins, there is no universally accepted reference point.
✓ Who is liable for objects lodged in the Outer space?
JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes

- Article 7 of the Outer Space Treaty places the liability on the - Through the active right of sending diplomatic representatives
State which launches or authorizes the launching of the object, and the passive right of receiving them, sates are able to deal
or from whose territory the object is launched. more directly and closely with each other in the improvement of
their mutual interests.

✓ In what instances may a State extend its territorial jurisdiction

over territory of other States? ✓ How are diplomatic missions established?
a. Through assertion of its personal jurisdiction over its nationals - The head of the mission is considered as having taken up his
abroad or the exercise of its right to punish certain offenses functions in the receiving state either when he has presented his
committed outside its territory against its national interests, even credential or when he has notified his arrival and a true copy of
if the offenders are non-resident aliens. his credentials has been presented to the foreign ministry of the
b. On the strength of its relations with other states or territories, as receiving state.
when it establishes a colonial protectorate, or a condominium or
administers a trust territory, or copies enemy territory in times ✓ Diplomatic mission v. Consular relations
of war. DIPLOMATIC MISSION CONSULAR RELATIONS
c. As a consequence of the waiver of jurisdiction by the local state FOCUS
over persons and things within its territory Political relations between States Relationship between foreigners,
d. Through acquisition of extraterritorial rights. i.e. citizens of the sending State
e. Through the enjoyment of easements or servitudes, such as the and the receiving State
easement of innocent passage or the easement or arrival under EFFECT OF CONSENT OF RECEIVING STATE
stress. The consent of the receiving state A consular post may serve as a
to establish a diplomatic mission step towards the establishment of
✓ Exterritoriality v. Extraterritoriality includes the consent to establish a a diplomatic mission, but does
EXTERRITORIALITY EXTRATERRITORIALITY consular post. not establish one itself.
The exemption of persons and Applies only to persons and is EFFECT OF ESTABLISHMENT
property from the local based on treaty or convention. It Signified recognition of a State as Does not necessarily signify
jurisdiction on the basis of has become discredited because subject of public international recognition of a State as a subject
international custom of the rise of nationalism and the law of public international law
sovereign equality of states.
✓ Ceremonial v. Political Envoy
✓ Act of State Doctrine CEREMONIAL ENVOY POLITICAL ENVOY
- Under this doctrine, the foreign court chooses to uphold and Tasked to merely attend Representative for political
respect the foreign State’s act done within its territory on the ceremonies on behalf of the purposes
reasoning that if it will not do so, it would imperil the amicable Sending State
relations between governments and vex the peace of nations.
✓ Immunities and Privileges of Head of State as Diplomatic Agent
✓ Right of Legation a. Personal Inviolability
b. Immunity from Jurisdiction

31 JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes
c. Inviolability of Diplomatic Premises
d. Inviolability of Archives – diplomatic bag
e. Inviolability of Communication
f. Exemption from Testimonial Duties
g. Exemption from Taxation
h. Freedom of movement and travel in its territory
i. Exemption from all personal services, from all public services
of any kind whatever, and from military obligation such as those
connected with requisitioning, military contributions and
billeting.
j. Right to use the flag and emblem of the sending state on the
premises of the mission, including the residence of the head of
the mission, and on his means of transport.
✓ Classes of Head of Diplomatic Missions
a. Head of State
b. Foreign secretary or minister
c. Ambassadors or nuncios accredited to the heads of state.
d. Envoys, ministers or internuncios accredited to the heads of
state.
e. Chargés d’affaires accredited to ministers for foreign affairs.
- Distinctions among the members of the diplomatic service are
important only in connection with the matters of protocol or the
grant of special honors.
✓ Who are Charges d’affaires?
- It refers to the senior officer taking charge for the interval when
a chief of mission is absent from his post.
✓ Attaches
- Junior officers of a diplomatic mission. Some have a
professional specialization such as a labor attaché, commercial
or trade attaché, or cultural attaché.
✓ Diplomatic Corps
- A body consisting of the different diplomatic representatives
who have been accredited to the same local or receiving state.
32
✓ Duyen du Corps
- Head of the Diplomatic Corps
- By tradition, is the oldest member with the highest rank or, in
Catholic countries, the Papal Nuncio.
✓ May the members of the diplomatic mission be nationals of the
receiving state?
- Generally, no. Members of the diplomatic staff or mission
should in principle be of the nationality of the sending state as
provided for by Article 1 of the 1961 Vienna Convention on
Diplomatic Relations. Members of the diplomatic staff or
mission may not be appointed from among persons having the
nationality of the receiving state, except with the consent of that
state which may be withdrawn at any time.
✓ Practice of Agréation
- It is an informal inquiry to find out the acceptability of a
proposed envoy and an informal conformity of the receiving
state to the appointment of the said envoy.
✓ Must the receiving state give reasons of its refusal?
- No, Article 4 of the Diplomatic Convention provides that the
receiving state is not obliged to give reasons for a refusal of
agrément.
✓ Can consent or agrément be revoked?
- Yes, upon revocation of the consent or agrément, it shall be
considered as termination of the diplomatic mission. This
usually occurs when the diplomatic agent is declared as persona
non grata. It is done through recall or dismissal
✓ May a diplomatic agent be declared persona non grata
- Yes, the receiving state has the right to declare a diplomatic or
consular agent a persona non grata and thus request for the recall
of that agent.
✓ Duties and obligations that the diplomatic agent owes the
receiving state
JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes

a. The receiving State must, even in case of armed conflict, respect
and protect the premises of the mission, together with its
property and archives.
b. The sending State may entrust the custody of the premises of the
mission, together with its property and archives, to a Third State
acceptable to the receiving State
c. The sending State may entrust the protection of its interests and
those of its nationals to a third State acceptable to the receiving
State.
✓ Letter of credence
- By means of which he is accredited to the receiving state with
the request that full faith and credit be given to his official acts
on behalf of the sending state.
✓ Functions of a Diplomatic Mission
a. Representing the sending state in the receiving state.
b. Protecting in the receiving state the interests of the sending state
and its nationals.
c. Negotiating with the government of the receiving state.
d. Ascertaining by all lawful means and conditions and
developments in the receiving state and reporting thereon to the
government of the sending state.
e. Promoting friendly relations between the sending and receiving
states and developing their economic, cultural and scientific
relations.
✓ Can a diplomatic mission perform a consular function?
Requisites and vice-versa
- The diplomatic mission may also perform consular functions in
the absence of a consular mission from the sending state.
✓ Personal Inviolability
- The person of a diplomatic agent shall be inviolable. He shall
not be liable to any form of arrest or detention. The receiving
state shall treat him with due respect and shall take all
appropriate steps to prevent any attack on his person, freedom or
dignity.
EXCEPTION
a. The envoy cannot complain if he is injured because he
himself caused the initial aggression.
b. The local authorities may also, in exceptional cases, lay
hands on him if he has committed an act of violence and it is
necessary to place him in preventive restraint.
✓ RA 75
- In the Philippines, R.A. No. 75 punishes, on the basis of
reciprocity, “any person who assaults, strikes, wounds,
imprisons or in any other manner offers violence to the person
of an ambassador or public minister, in violation of the law of
nations.”
✓ Distinguish Nationality from Citizenship
NATIONALITY CITIZENSHIP
The tie that binds an individual to Applies only to certain members
his state, from which he can of the state accorded more
claim protection and whose laws privileges than the rest of the
he is obliged to obey. people who also owe it
Is membership in a political allegiance.
community with all its
concomitant rights and
obligations.
A legal bond having as its basis a A more exclusive meaning in that
social fact of attachment, a it applies only to certain members
genuine connection of existence, of the state accorded more
interests and sentiments, together privileges than the rest of the
with the existence of reciprocal people who owe it allegiance. Its
rights and duties. It may be said significance is municipal, not
to constitute the juridical international.
expression of the fact that the
individual upon whom it is
conferred, either directly by the
law or as a result of an act of the
authorities is in fact more closely
connected with the population of

33 JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes

the State conferring nationality - An individual acquires the nationality of his parents
of any other state 2. Naturalization
3. Repatriation
4. Subjugation
✓ Can you be a national without being a citizen and vice versa? 5. Cession
a. National without being a citizen
- Yes, nationality is the general term whereas citizenship is more ✓ Naturalization
exclusive and accorded more privileges. (i.e., during the - A process by which a foreigner acquires, voluntarily or by operation
American regime, Filipinos and Americans were both of law, the nationality of another State.
considered as nationals of the US. However, Filipinos were not a. Direct
entitled to American citizenship rights. i. By individual proceedings, usually judicial, under
b. Citizen without being a national general naturalization laws;
- Yes, in cases of people belonging to a stateless nation, despite ii. By special act of the legislature, often in favor of
lacking their own nation state, they nonetheless hold citizenship distinguished foreigners who have rendered some
in one or more countries. (i.e., second class citizens) notable service to the local state;
iii. By collective change of nationality (naturalization en
✓ What are the differences in terms of rights if you are a citizen or masse) as a result of cession or subjugation;
a national? iv. In some cases, by adoption of orphan minors as nationals
RIGHTS OF CITIZENS RIGHTS OF NATIONALS of the state where they are born.
Rights given by municipal law The right to participate in b. Derivative
(i.e., right to vote, right to be a international relations through the i. On the wife of a naturalized husband;
part of the administration of the instrumentality of his state ii. On the minor children of the naturalized parent; and
internal affairs of the parent Right to have a claim to the iii. On the alien woman upon marriage to a national.
state.) protection of his state
✓ Is it automatic?
✓ Under International Law, are the terms interchangeable? - No, it is not automatic. For Direct naturalization, the individual will
- Yes. have to apply voluntarily or by operation of law for the grant of
naturalization. Derivative naturalization, on the other hand, usually
✓ Doctrine of Indelible Allegiance follows or is subject to stringent restrictions and conditions.
- An individual may be compelled to retain his original nationality
notwithstanding that he has already renounced or forfeited it under ✓ Philippine procedure for Naturalization and is it a judicial or
the laws of a second state whose nationality he has acquired. administrative process?
- C.A. No. 473 provides for the judicial process of naturalization
✓ Modes to acquire nationality while R.A. No. 9139 and R.A. N. 9225 provide for the
1. By birth administrative processes of naturalization.
a. Jure Soli
- An individual acquires the nationality of the state where he is born ✓ Right of Expatriation
b. Jure Sanguinis

34 JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes
- It is the right of a person to renounce his nationality or allegiance to
his original state.
✓ Does a person have the right to renounce his nationality or
allegiance to his original state?
- Yes, Article 6 of The Hague Convention of 1930 on the Conflict of
Nationality Laws provides:
Without prejudice to the liberty of a State to accord wider rights to
renounce its nationality, a person possessing two nationalities
acquired without any voluntary at on his part may renounce one of
them with the authorization of the State whose nationality he desires
to surrender. This authorization may not be refused in the case of a
person who has his habitual and principal residence abroad, if the
condition laid down in the law of the State whose nationality he
desires to surrender are satisfied.
✓ Can a person be arbitrarily denied his right to change his
nationality?
- No, Article 15 of the Universal Declaration of Human Rights state
that:
No one shall be arbitrarily denied the right to change his nationality.
✓ Does a State have the right to limit a person from renouncing
his nationality?
- Generally, no. An exception to this however is by virtue of the
Doctrine of Indelible Allegiance where the State may prohibit its
nationals from changing their nationality under certain
circumstances.
- For example, C.A. No. 63
A Filipino may not divest himself of Filipino citizenship in any
manner while the Republic of the Philippines is at war with any
country.
- The basis of this is the Latin maxim nemo potest exuere patriam
where the bond of nationality once forged, could never be broken.
✓ How can a person lose his nationality? What is the procedure?
1. Voluntary
35
a. Renunciation
b. Request for Release
2. Involuntary
a. Forfeiture or Deprivation
- A result of some disqualification or prohibited act like enlistment in
a foreign country or long continued residence in a foreign state
b. Substitution
- Following a change of sovereignty or any act conferring derivative
naturalization.
✓ A Filipino subscribed to an Oath of Allegiance to another
country, does he automatically lose Philippine citizenship?
- Yes, C.A. No. 43 states that by subscribing to an Oath of Allegiance
to support the Constitution or laws of a foreign country, a Filipino
citizen loses his citizenship.
✓ Dual Citizenship v. Dual Allegiance
DUAL CITIZENSHIP DUAL ALLEGIANCE
Involuntary Act Voluntary Act
Arises when, as a result of the Refers to the situation in which a
concurrent application of the person simultaneously owes, by
different laws of two or more some positive act, loyalty to two
states, a person is simultaneously or more states.
considered a national by the said
states.
✓ Who determines a person’s nationality or citizenship?
1. It is for each State to determine under its own rules who are its
nationals. This law shall be recognized by other states in so far
as it is consistent with international conventions, international
custom, and the principles of law generally recognized with
regard to nationality.
2. Any question as to whether a person possesses the nationality of
a particular State shall be determined in accordance with the law
of that State
✓ How about in the case of adoption? What if the child was a
national of another State and was adopted thereafter?
JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes
- The adopted child’s existing nationality is not lost if he does not
acquire the adopter’s nationality.
✓ Can the State forfeit your citizenship? What are the grounds?
- Yes, through forfeiture as a result of some disqualification or
prohibited acts. As in the case of enlistment in a foreign country or
long continued residence in a foreign state.
✓ If a State forfeits your citizenship, what happens?
- A status of stateless person is attained is lost without retaining or
reacquiring another.
✓ Rules on Multiple Nationalities
- It is the possession by an individual of more than one nationality.
- It is acquired as a result of the concurrent application to him of the
conflicting municipal laws of two or more states claiming him as
their national.
✓ Can State accord diplomatic protection to a person with dual
nationality from the other State of nationality?
- No. Article 4 of the 1930 Hague Convention on Conflict of
Nationality of Laws provides that:
A State may not afford diplomatic protection to one of its nationals
against a State whose nationality such person also possesses.
✓ Principle of Effective/Active Nationality
- Under which the dual national shall be considered the national
exclusively of the state with which he is most closely connected.
✓ Nottenbohm Case
FACTS:
Nottebohm, a German by birth, lived in Guatemala for 34 years,
retaining his German citizenship and family and business ties with it.
He however applied for Liechtenstein citizenship a month after the
outbreak of World War II. Nottebohm had no ties with Liechtenstein but
intended to remain in Guatemala. The naturalization application was
36
approved by Liechtenstein and impliedly waived its three-year. After
this approval, Nottebohm travelled to Liechtenstein and upon his return
to Guatemala, he was refused entry because he was deemed to be a
German citizen. His Liechtenstein citizenship was not
honored. Liechtenstein thereby filed a suit before the International
Court to compel Guatemala to recognize him as one of its national.
Guatemala challenged the validity of Nottebohm’s citizenship, the right
of Liechtenstein to bring the action and alleged its belief that Nottebohm
remained a German national.
ISSUE:
Whether or not Nottebohm’s naturalization in Liechtenstein is
binding upon Guatemala
RULING:
No, the general rule is that issues relating to citizenship are
solely the concern of the granting nation. But it does not mean that other
states will automatically accept the conferring state’s designation unless
it has acted in conformity with the general aim of forging a genuine bond
between it and its national aim. In this case, there was no relationship
between Liechtenstein and Nottebohm; the change of nationality was
merely a subterfuge mandated by the war. Guatemala is under no
obligation to recognize a nationality granted in such circumstance.
Liechtenstein consequently is not entitled to extend its protection to
Nottebohm vis-à-vis Guatemala and its claim must, for this reason, be
held to be inadmissible.
✓ What are the conditions to consider the genuine link necessary
for the recognition of nationality?
- A State has no power to confer its nationality on inhabitants of
another State or on foreigners entering its territory when such
persons concerned are not attached to it by any particular bond, as,
for instance, origin, domicile or birth.
✓ Canevaro Case
FACTS:
Raphael Canevaro has on several occasions conducted himself
as a Peruvian citizen, both by standing as a candidate for the Senate,
JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes
where none are admitted except Peruvian citizens and where he went on
to defend his election, and also especially in accepting the office of
Consul General of the Netherlands, after having solicited the
authorization of the Peruvian Government and then of the Peruvian
Congress.
The debt which gave rise to the claim submitted to the Tribunal
arises from a decree of the dictator PIÉROLA of December 12, 1880,
by virtue of which there were issued, under date of the 23rd of the same
month, pay checks to the order of the firm of JOSÉ CANEVARO &
SONS for the sum of 77,000 pounds sterling, payable at different dates;
which were not paid at the dates fixed.
On September 30, 1890, the CANEVARO firm applied to the
Senate to secure the payment of the 43,140 pounds sterling which had
according to it been furnished to supply the needs of the war. It has been
held in a general way that the CANEVARO debt ought not to be under
the application of the law of 1889, as it could not be considered as
coming within the domestic debt because all its characteristics are
against this, the obligation being to order, made payable in pounds
sterling, and belonging to Italians.
ISSUE:
Whether or not Italy may file a diplomatic claim against Peru on
behalf of Raphael Canevaro, who is a national of both States under their
respective municipal laws
RULING:
According to Peruvian legislation, Canevaro is a Peruvian by birth
for he was born in Peruvian territory. On the other hand, he is of Italian
nationality because he was born of an Italian father. But because of
Canevaro’s acts in Peru, whatever his status as a national may be in
Italy, the Government of Peru has a right to consider him as a Peruvian
citizen and to deny his status as an Italian claimant.
✓ Tellech v. Austria and Hungary
FACTS:
The United States on behalf of Alexander Tellech claims for
compensation for time lost and alleged suffering and privation to which
he was subjected, first through internment in Austria and then through
37
the Austro-Hungarian Army. Tellech was born in the US of Austrian
parents. The US follows the jus soli theory where individuals born in its
territory are considered US citizens but under the laws of Austria, he
also possessed Austrian citizenship by virtue of jus sanguinis or through
his parents’ nationality.
Tellech resided in Austria from the time he was 5 years old until
in August of 1914, the claimant, while residing in Austria a short
distance from the Russian border, was subjected to preventive arrest as
an agitator engaged in propaganda in favor of Russia. After
investigation, he was interned and confined in internment camps for 16
months. He then took the oath of allegiance to the Emperor of Austria
and King of Hungary and was impressed into service in the Austro-
Hungarian army. He later escaped to Russia where he was arrested and
held by the Russian Army as a prisoner-of-war.
ISSUE:
Whether or not the Austrian Government could compel Tellech
to military service
RULING:
The action taken by the Austrian civil authorities in the exercise of
their police powers and by the Austro-Hungarian military authorities, of
which complaint is made, was taken in Austria, where claimant was
voluntarily residing, against claimant as an Austrian citizen. Citizenship
is determined by rules prescribed by municipal law. Under the law of
Austria, to which claimant had voluntarily subjected himself, he was an
Austrian citizen. The Austrian and the Austro-Hungarian authorities
were well within their rights in dealing with him as such. Possessing as
he did dual nationality, he voluntarily took the risk incident to residing
in Austrian territory and subjecting himself to the duties and obligations
of an Austrian citizen arising under the municipal laws of Austria.
✓ When is the Doctrine of Effective Nationality applicable?
- Within a third State, a person having more than one nationality shall
be treated as if he only had one.
✓ What is Statelessness?
JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes
- The condition or status of an individual who is born without any
nationality or who loses his nationality without retaining or
acquiring another.
- The individual is powerless to assert any right that otherwise would
be available to him under international law were he a national of a
particular state.
✓ Damnum absque injuria
- Any injury to the individual by a foreign jurisdiction is, legally
speaking, not a violation of his own right but of the right of his state
to the protection of its nationals; the right to complain belongs not
to him but to the state of which he is a national.
- Exception: International Criminal Court
✓ Consequences of Statelessness
- Statelessness adversely affects a person’s right to exercise rights and
privileges usually enjoyed by citizens of a state.
a. Inability to exercise the right to work
b. To own property
c. To access health care
d. To education
e. The ability to travel including the vital right to leave and return
✓ Conditions which were promulgated by under The Hague
Convention to prevent Statelessness
1. A contracting state shall grant its nationality to a person born in
its territory who would otherwise be stateless.
2. A contracting state shall grant its nationality to a person, not
born in the territory of a contracting state, who would otherwise
be stateless, if the nationality of one of his parents at the time of
the person’s birth was that of that State.
✓ Does the Philippines grant nationality to a child born in the
Philippines who is stateless?
- Article 1 of the Convention on the Reduction of Statelessness
provides that a contracting party is bound to grant its nationality to
a person born in its territory who would otherwise be Stateless. The
38
Philippines, by virtue of pacta sunt servanda, is bound to perform
the same obligation.
✓ How does a Stateless person acquire citizenship?
- The condition of statelessness ceases when the individual concerned
acquires an effective nationality by either operation of law at a fixed
age, upon application, naturalization or by re-acquisition.
✓ What are the obligations of a Stateless person to the state where
he finds himself and vice versa?
- Every stateless person has duties to the country in which he finds
himself, which require in particular the he conform to its laws and
regulations as well as to measures taken for the maintenance of
public order.
✓ Rights of a Stateless person
1. The right to religion and religious instruction
2. Access to Courts
3. Elementary education
4. Public relief and assistance and rationing of products in short
supply
5. Treatment no less favorable that that accorded to aliens generally
✓ Who is an alien?
- In relation to a State, an alien is any person who is not one of its
nationals.
✓ Distinction of rights between nationals and aliens
RIGHTS OF NATIONALS RIGHTS OF ALIENS
Apart from the basic human As prescribed under international
rights under Internal Conventions law standards
and laws, rights of nationals are
prescribed by their State.
✓ Do you have the right, as a Stateless person, to be issued identity
papers?
JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes
- Yes, when the stateless person does not possess valid travel
documents.
✓ May a person be expelled from his country of residence? On
what grounds?
- No, Article 31 of the Convention relating to the Status of Stateless
Persons states that “the contracting States shall not expel a Stateless
person lawfully in their territory save on grounds of national security
or public order.
✓ Stateless person v. Refugee
REFUGEE
- A person who, owing to a well-founded fear of being persecuted for
reasons of race, religion, nationality, membership of a particular
social group or political opinion, is outside the country of his
nationality and is unable or, owing to such fear, is unwilling to avail
himself of the protection of that country.
- It includes stateless persons who are outside the country of his
habitual residence and is unable or, owing to such fear is unwilling,
to return to it.
RIGHTS OF REFUGEES
a. Non-discrimination in relation to the nationals of the State with
respect to public relief and assistance or relating to aspects of
labor legislation and social security
b. Association
c. Wage-earning employment
d. Free access to courts
e. Right to be issued identity papers
f. They shall not be expelled save on grounds of national security
or order
g. They duty of non-refoulement obliges States not to return
refugees to a place where they risk being persecuted for a reason
laid down in the Refugee Convention
h. Exercise liberal professions
i. Self-employment
j. Housing
39
k. Refugees having their habitual residence in the State possess a
non-discriminatory position concerning artistic rights and
intellectual property
l. Freedom of religion
m. Same treatment as accorded to nationals with respect to
elementary education
PRINCIPLE OF NON-REFOULEMENT
- In addition to not returning the refugee to his own state, he must not
be sent to a third state if his life or freedom would there be threatened
on account of his race, religion, nationality, membership of a
particular social group or political opinion.
EXCEPTION
a. There are reasonable grounds for regarding the refugee as a
danger to the security of the state
b. Having been convicted of a particularly serious crime,
constitutes a danger to the community of the state.
✓ Re-integration
- The process through which children formerly associated with armed
forces or groups, are supported to return to civilian life and play a
valued role in their families and communities.
✓ When may an alien hold a State responsible for injuries
suffered?
1. State organs exercising legislative, judicial, executive or any other
functions while acting in a governmental capacity even if the organ
exceeds its authority or contravenes instructions;
2. A person or entity empowered by the law of the State to exercise
elements of governmental authority while acting in a governmental
capacity even if the person or entity exceeds its authority or
contravenes instructions;
3. An organ placed at the disposal of a State by another State if the
organ is exercising governmental authority of the State at whose
disposal it was placed;
4. Persons or group of persons acting on the instructions of, or under
the direction or control of, a State even where the person or group is
exercising elements of governmental authority in the absence or
JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes
default of official authorities where the circumstances call for the
exercise of such authority;
5. An insurrectional movement when it becomes the new government
of the State;
6. The entity which succeeds in establishing a new state in part of a
pre-existing state; and
7. Any person who acknowledges and adopts the person’s or entity’s
conduct as its own
✓ Doctrine of State Responsibility
- Liability will attach to the state where its treatment of the alien falls
below the international standard of justice or where it is remiss in
according him the protection or redress that is warranted by the
circumstances.
- It provides that whenever one state commits an internationally
wrongful act against another state, international responsibility is
established between the two. It is a fundamental principle of
international law, arising out of the nature of the international legal
system and the doctrines of state sovereignty and equality of states.
- Under this doctrine, a state may be held responsible for:
1. An international delinquency
2. Directly or indirectly imputable to it
3. Which causes injury to the national of another state
4. If it does not make reasonable efforts to prevent injury to the
alien, or
5. Having done so unsuccessfully, fails to repair such injury.
6. Even if it did take reasonable precautions, the state would still
be held liable if it thereafter does not employ the necessary
diligence to arrest and punish the malefactors or otherwise
redress the wrong committed.
✓ International Standard of Justice
- The standard of reasonable state, that is, as referring to the ordinary
norms of official conduct observed in civilized jurisdictions.
- Deemed not satisfied if the laws of a state are intrinsically unjust, as
when there is a marked disproportion between the degree of an
offense and the penalty imposed for it
40
- Laws will also be below this standard if they authorize the summary
decision of contentious cases without the observance of the usual
rights to notice and hearing and other generally accepted
requirements of due process.
✓ Chattin Case
FACTS:
B.E. Chattin is an American citizen working in Mexico. He was
arrested and charge with theft where he was thereafter prosecuted and
sentenced to 2 years in prison. He did not get credit for the 6 months he
had spent in jail while awaiting the trial. The prison he was confined in
was attacked by rebels and he runs away and escapes to the United
States.
U.S. sues Mexico on his behalf for poor treatment of the
Mexican judicial treatment. He could not confront his accusers and was
not permitted to cross-examine his witnesses.
ISSUE:
Whether or not the Mexican authorities violated the international
standards of care
RULING:
Yes, strong evidence is presented against the negligence of
Mexico to conduct the proper procedure concerning the conviction of
Chattin. Irregularity of court proceedings is proven with reference to the
absence of proper investigations, insufficiency of confrontations,
withholding from the accused the opportunity to know all the charges
brought against him, undue delay of the proceedings, making the
hearings in the open court a mere formality, and a continued absence on
the part of the Court.
✓ If the laws of a particular State are already in compliance with
the International Standard of Justice, are there any other ways
where acts may be imputable to said State?
- A state is internationally responsible for its own acts or omissions,
but as an abstract entity it can physically act only through
individuals or group of individuals performing acts of state on its
behalf. The conduct of organs must be regarded as an act of state.
JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes
✓ Direct v. Indirect State Responsibility
DIRECT IMPUTABILITY INDIRECT IMPUTABILITY
Where the international Where the offense is committed
delinquency was committed by by inferior government officials
superior government officials or or by private individuals, the state
organs like the chief of state or will be held liable only if, by
the national legislature, liability reason of its indifference in
will attach immediately as their preventing or punishing it, it can
acts may not be effectively be considered to have connived in
prevented or reversed under the effecting its commission.
constitution or laws of the State
✓ Conditions for State Imputability
a. But even assuming the liability of the state for an international
delinquency, its enforcement cannot be claimed by the injured
foreigner unless he first exhausts all available local remedies for
the protection or vindication of his rights.
b. The state must be given an opportunity to do justice in its own
regular way and without unwarranted interference with its
sovereignty by other states.
c. It is a sound principle that where there is a judicial remedy, it
must be sought; and only if it is sought in vain does diplomatic
interposition become proper.
1. RESORT TO DIPLOMATIC PROTECTION
- If the injured foreigner has exhausted all local remedies but without
success, he may then avail himself of the assistance of his state – but
only if he has a state.
- So important is the tie of nationality, in fact, that it is required to
exist from the time of the injury until the time the international claim
is finally settled.
2. Exceptions
a. There are no remedies to exhaust
b. The courts are corrupt
41
c. There is no adequate machinery
d. It involves acts of States not subject to judicial review
✓ How can a person enforce a claim? Must he be represented by
the State?
INDIVIDUALS AS SUBJECT OF INTERNATIONAL LAW
- Traditionally, individuals are considered merely as objects, not
subjects of International Law
- Modern practice demonstrates that individuals have become
increasingly recognized as participants and subjects of international
law
INDIVIDUALS MAY REQUEST THE AVAILABILITY OF A
FORUM INTERNATIONALLY WHEN
1. The willingness of states to agree to subject themselves to such
suits or to allow such prosecutions to go forward in their national
courts
2. The willingness of the international community to establish and
support international or quasi-international tribunals for the
adjudication of state or individual responsibilities
✓ Modes of resolving International Claims
- In consequence, states have on many occasions found it necessary
to settle their disputes by themselves alone without regard to higher
authority.
✓ Reparation
- The essential principle contained in the actual notion of an illegal
act is that reparation must, as far as possible, wipe out all the
consequences of the illegal act, and reestablish the situation which
would, in all probability, have existed if that act had not been
committed.
a. Restitution
- An obligation to re-establish the situation which existed before the
wrongful act was committed, provided it is not materially
impossible.
b. Satisfaction
JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes
- Insofar as the injury cannot be made good by restitution or
compensation. It may consist in an acknowledgement of the breach,
an expression of regret, a formal apology or other appropriate
modality.
- It shall not be out of proportion to the injury and may not take a form
humiliating to the responsible state.
c. Compensation
- An obligation to compensate for the damage caused thereby, insofar
as such damage is not made good by restitution. This shall cover any
financially assessable damage including loss of profits insofar as it
is established.
✓ Does the Doctrine of State Responsibility apply only to tortious
acts or does it also apply to contractual obligations?
- The Doctrine of State Responsibility is applied more frequently to
tortious rather than contractual liability because of the unwillingness
of most states to act as “collection agencies” for their nationals
entering into private agreements with foreign countries.
✓ Calvo Clause and its binding effect
CALVO DOCTRINE CALVO CLAUSE
A state is not responsible for Used chiefly in contracts between
losses incurred by aliens in time a government and aliens;
of civil war. prevents appeals by aliens to their
home governments for
diplomatic intervention in behalf
of their contract rights.
It may not be interpreted to The alien agrees that any dispute
deprive the alien’s state of the that might arise out of the
right to protect or vindicate his contract is to be decided by the
interests in case they are injured national courts in accordance
in another state as such waiver with the national law and is not to
can legally be made not by him give rise to any international
but by his own state. reclamation.
✓ Exclusion
- Exclusion is the denial of entry to an alien.
42
✓ Deportation
- Essentially a unilateral act of the deporting state in order to get rid
of an undesired foreign national.
- The removal of an alien out of the country, simply because his
presence is deemed inconsistent with the public welfare, and without
any punishment being imposed or contemplated, either under the
laws of the country out of which he is sent, or under those of the
country to which he is taken.
✓ Reconduction to the Border
- The forcible expulsion of an undesirable alien by arresting them and
reconducting them to the border or their home state.
✓ Does the Philippines have extradition?
- Yes.
✓ Extradition v. Deportation
- The surrender of a person by one state to another state where he is
wanted for prosecution, or if already convicted, for punishment.
- Required only if there is a treaty between the state of refuge and the
state of origin.
- It is not unusual for states to render assistance to each other in the
apprehension of criminals who have fled their respective
jurisdictions.
- The removal of an accused from the requested State with the object
of placing him at the disposal of foreign authorities to enable the
requesting state or government to hold him in connection with any
criminal investigation directed against him or the execution of a
penalty imposed on him under the penal or criminal law of the
requesting state or government.
DEPORTATION EXTRADITION
Unilateral act of the local state
Effected at the request of the state
of origin
Based on causes arising in the Based on the offenses generally
local state committed in the state of origin
JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes
An undesirable alien may be Calls for the return of the fugitive
deported to a state other than his to the state of origin
own or the state of origin.
** Kerr Frisbie Doctrine – Transnational Abduction
✓ Does the State possess the right to exclude aliens?
- A State cannot exclude aliens altogether from its territory without
violating the spirit of International Law. However, the reception of
aliens is a matter of discretion and every State is, by reason of its
territorial supremacy, competent to exclude aliens from the whole,
or any part, of its territory subject to restrictions.
- Must not be discriminatory to a specific race or class (jus cogens)
✓ Is deportation similar to exclusion?
- No, exclusion occurs prior to the arrival of the alien to the State
whereas deportation occurs where the alien, already in the State, is
removed from the territory.
✓ Elements of Extradition
1. Acts of Sovereignty on the part of two states
2. A request by one state to another state for the delivery to it of an
alleged criminal;
3. The delivery of the person requested for the purposes of trial or
sentence in the territory of the requesting state
✓ Fundamental Principles of Extradition
1. Based on the consent of the state of asylum as expressed in a
treaty or manifested as an act of goodwill.
ASYLUM
- When a state allows an alien to enter and remain in its territory even
if his own State objects. Aliens have no right of asylum; it is merely
the right of the state to grant it. The concept is wider than refugee
status in that in can be granted when the person has no fear of
prosecution.
KINDS OF ASYLUM
a. Territorial
43
- Protection which a state offers to an individual within its territory or
in another relevant territory who seek such protection; asylum
provided by a state to individuals in its territory.
b. Exterritorial or Diplomatic
- Protection from prosecution is sought within the persecuting state,
with a diplomatic mission providing legal or at least physical
protection and not in the state of refuge; asylum in other places,
mainly in the premises of an embassy or legation.
- Generally, diplomatic asylum cannot be granted except to the
members of the official or personal household of diplomatic
representatives. On humanitarian grounds however, it may be
extended to refugees but only during the period when active danger
persists.
2. Principle of Specialty
- A fugitive who is extradited may be tried only for the crime specified
in the request for extradition and included in the list of offenses in
the extradition treaty.
3. Any person may be extradited, whether he be a national of the
requesting state, of the state of refuge or of another state.
4. Political and religious offenders are generally not subject to
extradition.
Exception: Attentat clause
5. In the absence of special agreement, the offense must have been
committed within the territory or against the interests of the
demanding state.
6. Rule of Double Criminality
✓ Is this subject to waiver?
- A request for extradition, for as long as it is based upon the authority
of an existing extradition treaty between the requesting and the
requested States, may not be refused or waived. The requested state
is bound by pacta sunt servanda.
✓ Rule on Double Criminality
- Makes all offenses defined and punished as crimes under the laws
of both State Parties as extraditable without need of a specific listing
of extraditable offenses in the treaty.
JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes
✓ Are political and religious offenses extraditable?
- No. To constitute an offense of a political character, there must be
two or more parties in the state, each seeking to impose the
government of their own choice on the other.
✓ Attentat Clause
- The assassination, murder, attempt on the life of, or other willful
crimes against the person of the head of state or Head of Government
or any other member of his family is not to be regarded as a political
offense for purposes of extradition
✓ Genocide and acts considered as genocide
- Genocide includes any of the following acts committed with intent
to destroy, in whole or in part, a national, ethnical, racial or religious
group such as:
a. Killing members of the group
b. Causing serious bodily or mental harm to members of the group
c. Deliberately inflicting on the group conditions of life calculated
to bring about its physical destruction in whole or in part;
d. Imposing measures intended to prevent births within the group;
e. Forcibly transferring children of the group to another group.
✓ Must the refuge state first determine probable cause before
extraditing an individual?
- Yes. An extradition treaty presupposes that both parties thereto have
examined, and that both accept and trust, each other’s legal system
and judicial prowess.
✓ Extradition proceeding in the Philippines
1. Request through diplomatic representative
2. DFA forwards request to DOJ
3. DOJ files petition for extradition with RTC
4. The judge must study the petition for extradition and its
supporting documents and make, as soon as possible, a prima
facie finding whether they are sufficient, in compliance with the
Extradition Treaty and Law and that the person sought is
extraditable.
44
5. Hearing (provide counsel de officio is necessary)
6. Appeal to CA within 10 days whose decision shall be final and
executory
7. Decision forwarded to DFA through the DOJ
8. Individual placed at the disposal of the authorities of requesting
state costs and expenses to be shouldered by the requesting state.
✓ Conditions or postulates of extradition
1. Extradition is a major instrument for the suppression of crime with
an important practical effect that criminals should be restored to the
jurisdiction of the locus delicti commissi (place of the commission
of the crime) competent to try and punish them so that the number
of criminals seeking refuge abroad will be reduced
2. The requesting state will accord due process to the accused
- An extradition treaty presupposes that both parties thereto have
examined, and that both accept and trust, each other’s legal system
and judicial process.
3. Proceedings are sui generis
- Extradition proceedings are not criminal in nature. They are not
criminal proceedings which will call into operation all the rights of
an accused as guaranteed by the Bill of Rights.
4. Compliance shall be in good faith
5. There is an underlying risk of flight
✓ Does an extradite have the right to bail?
- May only be granted to a possible extradite only upon a clear and
convincing showing:
1. That he will not be a flight risk or danger to the community
2. That there exist special, humanitarian and compelling
circumstances
✓ Can an extradite invoke his constitutional rights?
- As a rule, constitutional rights that are only relevant to determine
the guilt or innocence of an accused cannot be invoked by an
extraditee.
✓ Countries where the Philippines have extradition treaties with
1. Canada
2. China
JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes

3. Switzerland - An actual disagreement between states regarding the conduct to be

4. South Korea taken by one of them for the protection or vindication of the interests
5. Indonesia of the other.
6. Micronesia
7. USA ✓ Amicable methods for settling disputes
8. Australia 1. Negotiation
9. Thailand - The discussion undertaken by the parties themselves of their
10. Hong Kong respective claims and counterclaims with a view to their just and
orderly adjustment.
✓ Distinguish Dispute with a mere situation 2. Inquiry
DISPUTE SITUATION - An investigation of the points in question, on the theory that their
A disagreement on point of law Where the disagreement has not elucidation will contribute to the solution of the differences between
or fact, a conflict of legal views yet ripened to a full-blown the parties.
or of interests between two conflict or the issues have not yet 3. Good offices
international persons. been sufficiently formulated and - A method by which a third party attempts to bring the disputing
defined states together in order to enable them to discuss the issues in
Initial stage of a dispute contention and arrive at an agreement.
4. Mediation
✓ Role of the UN in settling disputes - By means of which the third party does not merely provide the
- One of the principal purposes of the UN, as provided for by Article opportunity for the antagonist to negotiate but also actively
1, paragraph 1 of the UN Charter, is to bring about the settlement of participate in their discussions in order to reconcile their conflicting
international disputes by peaceful means, and in conformity with the claims and appease their feelings of resentment.
other principles of justice and international law. 5. Conciliation
- Calls for the active participation of a third party in the attempt of the
✓ Types of disputes disputants to settle their conflict, and the recommendation made by
LEGAL DISPUTE it are likewise not binding. The services of the conciliator are not
- If it involves justiciable rights based on law or fact susceptible of offered by the third party but solicited by the parties in dispute.
adjudication by a judicial or arbitral tribunal. 6. Arbitration
- The solution of a dispute by an impartial third party, usually a
POLITICAL DISPUTE tribunal (ad hoc committee) created by the parties themselves under
- If it cannot be decided by legal processes on the basis of the a charter known as the compromise, which will provide for, among
substantive rules of international law because the differences of the others, the composition of the body and the manner of the selection
parties spring from animosities in their mutual attitudes rather than of its members, its rules of proceedings and sometimes even the law
from an antagonism of legal rights. to be applied by it, and the issues of fact or law to be resolved.
7. Judicial Settlement
✓ International dispute - Quite similar to arbitration
- Now entrusted to the International Court of Justice
8. Resort to regional and international organizations

45 JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes

- May be resorted to by the parties on their own volition or taken by - The Court is competent to entertain a dispute only if the States
the body itself at its own instance if allowed by agreement of the concerned have accepted its jurisdiction in one or more of the
members. following ways:
1. By the conclusion between them of a special agreement
✓ Judicial Settlement v. Arbitration (compromis) to submit the dispute to the Court
JUDICIAL SETTLEMENT ARBITRATION 2. By virtue of a jurisdictional clause, i.e., typically, when they are
Generally speaking, a pre- An ad hoc body created and filled parties to a treaty containing a provision whereby in the event of
existing and permanent body by the parties to the dispute a disagreement over its interpretation or application, one of them
themselves may refer the dispute to the Court
Jurisdiction is usually Jurisdiction is voluntary 3. Through the reciprocal effect of declarations made by them
compulsory, dependent upon the under the Statute whereby each has accepted the jurisdiction of
agreement of the parties to submit the Court as compulsory in the event of a dispute with another
to and be bound by its decisions State having made a similar declaration
Law applied is independent of the Law applied may be limited by 4. In cases of doubt, as to whether the Court has jurisdiction, it is
will of the parties the will of the parties the Court itself which decides.

✓ Enquiry ✓ Optional Jurisdiction Clause

- Ascertainment of the pertinent facts and issues in a dispute.
✓ Dogger Bank Case
FACTS:
Russian vessels fired in a fog on the English fishing fleet off
Dogger Bank during the Russo-Japanese War and caused the death of
two fishermen, injuries to others and considerable destruction of
property. Russia maintained that the firing was due to the approach of
Japanese torpedo boats, and a commission of inquiry was created to
verify this claim.
ISSUE:
Whether or not the claims of Russia bear truth
RULING:
No, the finding was that there were no torpedo boats present at
the time of the incident, and as a result, Russia agreed to pay 65,000
pounds to Great Britain.
- Article 36 [2] of the ICJ Statutes
- A mechanism, which enables parties to the Statute to lodge an
optional clause declaration under which, subject to a number of
provisos which are described below, they recognize the jurisdiction
of the ICJ as compulsory as between themselves and other parties to
the Statute which have made similar declarations.
- As between such parties, no special agreement to subject any
particular dispute to the jurisdiction of the Court is required. A
plaintiff party, which has lodged such a declaration, has only to file
a case with the Court and submission to the jurisdiction of the Court
by a defendant party which has itself lodged a reciprocal declaration
is then compulsory.
✓ Subject matters within the Jurisdiction of the ICJ
- Article 36 [1], ICJ Statute
- The jurisdiction of the Court comprises all cases which the parties
refer to it and all matters specially provided for in the Charter of the
United Nations or in treaties and conventions in force.

✓ How do states accept the jurisdiction of the ICJ ✓ Hostile methods

46 JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes

- Not only unfriendly, but may even involve illegal and coercive acts
and are usually imposed upon weak countries by strong powers.
a. Retorsions
- Retaliation where the acts complained of do not constitute a legal
ground of offense but are rather in the nature of unfriendly acts but
indirectly hurtful to other states.
ii. everance of diplomatic or consular relations
iii. Suspension of commercial intercourse
b. Boycott
- Concerted suspension of commercial relations with the offending
state, with particular reference to a refusal to purchase goods
i. Stoppage of travel to the other state
ii. Denunciation of treaties
iii. Imposition of higher tariffs and other trade barriers
iv. Currency restrictions
v. Denial of loans and withdrawal of privileges
previously enjoyed
vi. Recognition of a rival government
vii. Adverse propaganda
c. Reprisals
- Are acts of self-help on the part of the injured state, responding after
an unsatisfied demand to an act contrary to international law on the
part of the offending state.
i. Display of force
ii. Occupation of Territory
iii. Embargo
- Detention by the state seeking redress of the vessels of the offending
state or its nationals
d. Pacific Blockade
- By which the vessels of the offending state are prevented from
entering or leaving its ports by the ships of the state seeking redress
i. Freezing of assets of the nationals of the other states
e. Non intercourse
- Suspension of all intercourse with the offending state, particularly
in matters of trade and commerce
f. Intervention
✓ When are reprisals considered legitimate?
- Since the Kellog-Briand Pact of 1928, all forms of reprisals which
may involve the use of force are no longer legal.
- Article 2, Kellog-Briand Pact and Article 2, paragraph 3 and 4 of the
UN Charter.
✓ What are the factors considered?
1. There had to be a previous act by the other party that violated
international law.
2. Reprisals had to be preceded by an unsatisfied demand for
reparation or compliance with the violated international law.
3. There must be proportionality between the offense and the
reprisal.
✓ Naulilaa Case
FACTS:
During the World War I, a party of German officials and officers
crossed into the neutral Portuguese colony of Angola to discuss the
purchase of food supplies from the Portuguese. An altercation arose
which cause the demise of 3 Germans and the internment of another by
the Portuguese. Germany, in an act of reprisal, attacked and destroyed
certain forts and posts in Angola.
ISSUE:
Whether or not the act of reprisal by the Germans is legitimate
RULING:
No, because the act of Germany was not preceded by any
attempt to negotiate a peaceful resolution before the impending conflict
and that there has been evident disproportion between the incident of
Naulilaa and the six acts of reprisal which followed it.
✓ Enforcement v. Preventive Action
ENFORCEMENT ACTION PREVENTIVE ACTION
Action by air, sea or land forces Does not involve the use of
such as demonstrations and armed force
blockades

47 JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes

implying the governmental

✓ Procedure of the Security Council if there is a dispute employment of authorities and
- Shall have jurisdiction to intervene in: violence among the organized armed
a. All disputes affecting international peace and security parties as a means groups or between
b. All disputes which, although coming under the domestic of enforcing their such groups within
jurisdiction clause, have been submitted to it by the parties respective demands a State.
for settlement. upon each other.
- Disputes may be brought to it by
ii. The Security Council itself, on its own motion
iii. The General Assembly ✓ Is the state of war a status? Is belligerency a status? Do they go
iv. The Secretary-General hand in hand?
v. Any Member of the United Nations - Yes.
vi. Any party to the dispute
- The UN Charter provides that the Security Council Shall, in the first ✓ Is war considered lawful?
instance, when it deems it necessary, call on the parties to settle the - No.
dispute by any peaceful means in their own choice. 1. Covenant of the League of Nations
1. Any amicable measures already adopted by the parties 2. Kellogg – Briand Pact of 1928
2. That legal disputes should as a rule be referred to the ICJ. 3. UN Charter
a. Self-defense
✓ May the General Assembly interfere? b. Enforcement of Action
- Yes. The General Assembly may bring before the Security Council 4. Article II, paragraph 2, 1987 Constitution
any dispute. - The Philippines renounces war as an instrument of national policy.

✓ What is war? ✓ Are there uses of force sanctioned by the UN?

- May exist even without the use of force, as when one state formally 1. Severance of diplomatic relations
refuses to be governed by the laws of peace in its relations with - Serves as a warning that the issue between the two States had
another state even if actual hostilities have not taken place between reached a point where the injured party regarded normal diplomatic
them. relations as no longer compatible with the conduct of the other State,
and that sterner measures might possibly follow.
✓ Distinguish belligerency from war and from armed conflict 2. Nonintercourse
WAR BELLIGERENCY ARMED a. Retorsion
CONFLICT - Consists in retaliation where the acts complained of do not constitute
An armed The status or condition Exists whenever a legal ground of offense but are rather in the nature of unfriendly
contention between of two or more entities there is a resort to acts done primarily in pursuance of legitimate State interests but
the public forces of being in a state of war or armed force indirectly hurtful to other States.
states or other armed conflict. between States or b. Embargo
belligerent protracted armed - The prohibition of commerce and trade with the offending State.
communities, violence between BOYCOTT

48 JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes

- Concerted action undertaken by the citizens of one state to suspend

trade and business relations with the citizens of the offending State. ✓ Different laws of war in force
3. Reprisals Declaration of Paris of Warfare at Sea
- Denotes the seizing of property or persons by way of retaliation. 1856
CONDITIONS FOR THE LEGITIMACY OF REPRISALS Hague Conventions of Use of expanding bullets and
a. There must have been an illegal action on the part of the other 1899 asphyxiating gases
State;
b. They must be preceded by a request for redress of the wrong, for
the necessity of resorting to force cannot be established if the Hague Conventions of 1. Opening of hostilities
possibility of obtaining redress by other means is not even 1907 2. The laws and customs of warfare on
explored; land
c. The measures adopted must not be excessive, in the sense of 3. Conversion of merchant ships into
being out of all proportion to the provocation received. warships
4. Display of force 4. The laying of automatic submarine
5. Pacific Blockade contact mines
- Any effort to cut off all maritime commerce between an enemy State 5. Naval bombardment in times of war
and the rest of the world. 6. Exercise of the right of capture in
DECLARATION OF BLOCKADE naval warfare
- Article 9 of the 1909 Declaration of London 7. Discharge of projectiles from
a. The date when the blockade begins; balloons
b. The geographical limits of the coastline under blockade; 8. Adaptation to maritime warfare of the
c. The period within which neutral vessels may come out. rules of the Geneva Convention of
6. Armed intervention without war 1864
7. International organizational sanctions Geneva Convention of 1. Treatment of the wounded in land
- With the adoption of the UN Charter, all measures short of war that 1864 warfare
involve the threat or use of force against the territorial integrity or 2. Rights and duties of neutrals in land
political independence of any State or in any other manner warfare
inconsistent with the purposes of the UN are NO LONGER 3. Rights and duties of neutrals in naval
ALLOWED. warfare
- The Security Council may employ measures to give effect to Geneva Convention of Use of asphyxiating, poisonous and other
decisions and may call upon its members to apply: 1925 gases and of biological methods of
a. Complete or partial interruption of economic relations and of warfare
rail, sea, air, postal, telegraphic, radio and other means of Geneva Convention of Treatment of the sick and wounded and of
communication; 1929 prisoners of war
b. The severance of diplomatic relations; Declaration of London Use of submarines against merchant
c. Demonstrations; of 1936 vessels
d. Blockade; and Geneva Convention of 1. Amelioration the sick and wounded
e. Other operations by air, sea, or land forces. 1949 on land

49 JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes
2. Amelioration of the sick and
wounded and of shipwrecked
members of the armed forces at sea
3. Treatment of Prisoners of war
4. Protection of Civilian Persons in war
Nuclear a. Protest lodged by one belligerent,
Nonproliferation usually accompanied or followed by
Treaty an appeal to world opinion against the
unlawful acts of warfare committed
by the other belligerent.
b. Reparation for damages caused by the
defeated belligerent.
c. Punishment of war criminals
✓ Sanctions
1. The implied judgment, right or wrong, that the vanquished
belligerent is the guilty party in the dispute that caused the
hostilities. The treaty of peace imposed by the victor upon the
defeated state is regarded as punishment.
2. Compel the vanquished belligerent to acknowledge the
obligation to pay reparations for injuries and losses suffered by
the victor state.
3. Nationals of the vanquished state may be protected and punished
as war criminals and for other violations of international law.
✓ Commencement of War
- Article 1, Hague Convention III of 1907
“Hostilities must not commence without a previous and explicit
warning, in the form either of a reasoned declaration of war or of an
ultimatum with conditional declaration.”
1. War is supposed to commence on the date specified in the
declaration or on the date it is communicated to the enemy.
2. With the rejection of an ultimatum; and
3. From the moment of the first act of force committed by one state
with the intent of making war or committed without such intent
but considered by the other state as constituting war.
✓ Effects of the Outbreak of War
50
1. The laws of peace cease to regulate the relations of the belligerents
and are superseded by the laws of war.
2. Diplomatic and consular relations between the belligerents are
terminated and their respective representatives are allowed to return
to the own countries.
3. Treaties of political nature are automatically cancelled. Multipartite
treaties dealing with technical or administrative matters are merely
suspended.
4. Individuals are impressed with enemy character:
a. Nationality test
- If they are nationals of the other belligerent, wherever they may be.
b. Domiciliary test
- If they are domiciled aliens in the territory of the other belligerent,
on the assumption that they contribute to its economic resources.
c. Activities test
- If, being foreigners, they nevertheless participate in the hostilities in
favor of the other belligerent.
d. Corporations and other juridical persons
- If a majority or a substantial portion of their capital stock is in the
hands of enemy nationals, or if they have incorporated in the
territory or under the laws of the other belligerent.
5. Enemy public property found in the territory of the other belligerent
at the outbreak of hostilities, is, with certain exceptions, subject to
confiscation. Enemy private property may be sequestered, subject to
return, reimbursement or other disposition after the war in
accordance with the treaty of peace.
✓ Who are combatants?
- Individuals who are legally entitled to take part in hostilities.
a. Non-privileged
- Like spies, who, under false pretenses try to obtain information from
enemy ranks, and who, when caught, are not considered as prisoners
of war.
b. Privileged
- When captured, enjoys the privilege of a prisoner of war.
1. Members of the armed forces, whether pertaining to the army,
the navy or the air force, except those not actively engaged in
combat, such as chaplains and medical personnel.
JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes
2. The irregular forces such as the francs tireurs or the guerillas,
provided that:
a. They are commanded by a person responsible for his
subordinates;
b. They wear a fixed distinctive sign recognizable at a distance;
c. They carry arms openly; and
d. They conduct their operations in accordance with the laws
and customs of war.
3. The inhabitants of unoccupied territory who, on approach of the
enemy, spontaneously take arms to resist the invading troops
without having had time to organize themselves, provided only
that they carry arms openly and observe the laws and customs of
war. (levee en masse)
4. The officers and crew of merchant vessels who forcibly resist
attack.
✓ What is levee en masse?
- The inhabitants of unoccupied territory who, on approach of the
enemy, spontaneously take arms to resist the invading troops
without having had time to organize themselves, provided only that
they carry arms openly and observe the laws and customs of war.
✓ Once combatants are captured, do they have rights?
- Yes, once captured, combatants acquire the status of being prisoners
of war.
✓ Rights of Prisoners of War
1. Proper respect commensurate with their rank
2. Adequate food and clothing
3. Safe and sanitary quarters
4. Medical Assistance
5. Refuse to give military information or render military service
against their own state
6. Communication with their families
✓ Basic Principles that underlie the rules of war and an example
of each
1. Principle of Military Necessity
51
- Belligerents may, subject to the two other principles, employ any
amount and kind of force to compel the complete submission of the
enemy with the least possible loss of lives, time and money.
a. Atom Bombing of Hiroshima and Nagasaki
b. Sieges
c. Blockades
d. Bombardments
e. Devastation of Property
LIMITATIONS ON TARGETED ATTACKS
- Only military objectives are subject to attack by the armed forces of
a belligerent as a basic rule of warfare. Those not subject to attack
are:
a. Neutralized Areas or Zones
- These are zones established by special agreement between the
belligerents for treatment of the wounded and civilians.
b. Non-defended localities
- Inhabited places near or in a zone where armed forces are in contact
and which are open for occupation by the adverse party to avoid
hostilities and destruction
c. Cultural Property and Places of Worship
d. Civil Defense
- Includes personnel, buildings and assets, clearly indicated by a blue
triangle on an orange background distinctive sign
e. Dangerous installations
- Dams, dikes, or nuclear electric plants
f. Civilians and Persons Hors de Combats
- Those who are either wounded or, for other reasons, have
permanently joined the civilian population
HORS DE COMBATS (out of combat)
i. He is in the power of an adverse party;
ii. He clearly expresses an intention to surrender; or
iii. He has been rendered unconscious or is otherwise incapacitated
by wounds or sickness, and therefore is incapable of defending
himself.
g. Parachutists
- Those who bail out from aircrafts in distress; must be treated as
prisoners of war
h. Hospitals, hospital ships and Medical units
JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes
- A clear marking or a red cross to show their status
i. Objects indispensable to the survival of the civilian population
- Areas for the production of crops, raising of livestock, drinking
water installations and supplies and irrigation woks.
2. Principle of Humanity
- Prohibits the use of any measure that is not absolutely necessary for
the purposes of the war.
a. Poisoning of wells and weapons
b. Employment of dumdum or expanding bullets
c. Asphyxiating gases
d. Destruction of works of art and property devoted to religious or
humanitarian purposes
e. Bombarding of undefended places
f. Attack of hospital ships
3. Principle of Chivalry
- Requires the belligerents to give proper warning before launching a
bombardment or prohibit the use of perfidy in the conduct of
hostilities.
✓ Are these codified? Or are these only guiding principles?
- Yes, these have been codified through the various treaties and
conventions of the United Nations providing guidelines for the
conduct of States during war.
✓ Termination of War
1. Simple cessation of hostilities
- Property or territory in the possession of the respective belligerents
upon the termination of war is retained by the in accordance with
the principle of uti possidetis.
a. Sweden and Poland in 1976
b. France and Spain in 1720
c. Spain and its American colonies in 1825
d. France and Mexico in 1862-1867
2. Conclusion of a negotiated treaty of peace
- When hostilities ceased without either of the belligerents having
such military advantage over the other as to be able to impose its
will without resistance.
52
- The belligerents may be unable to effect a decisive victory against
each other and may decide finally to settle their disagreement via
treaty of peace.
a. Great Britain and the United States in 1812 with the conclusion
of the Treaty of Ghent
3. Defeat of one of the belligerents followed by a dictated treaty of
peace
CONDITIONAL SURRENDER
- A treaty of peace is concluded embodying the conditions specified
in the surrender
UNCONDITIONAL SURRENDER
- The victorious belligerent usually issues a unilateral declaration
announcing the end of the war, to be followed with a peace treaty
dictated by it and specifying the rules on the settlement of the
obligations of the vanquished state and the disposition of its
territories.
4. Subjugation
- The conquest of one belligerent by another, followed by the formal
annexation of the territory of the defeated State and the extinction
of its sovereignty and international personality.
✓ Uti Possidetis
- As you possess, so may continue to possess
- Each belligerent is regarded as legally entitled to such property as
was actually in its possession at the time hostilities ceased.
✓ Non-hostile intercourse
1. Flag of Truce
- A white flag carried by an individual authorized by one belligerent
to enter into communications with the other.
PARLEMENTAIRE
- The bearer, is entitled to inviolability as long as he does not take
advantage of his privileged positions to commit an act of treachery.
2. Cartels
- Agreements to regulate intercourse during war on such matters as
postal and telegraphic communication.
JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes

CARTEL SHIP - Unconditional stoppage of hostilities by order of an international

- A vessel sailing under a safe-conduct for the purpose of carrying body for the purpose of employing peaceful means of settling the
exchanged prisoners of war. differences between the belligerents.
3. Passport 4. Truce
- A written permission given by the belligerent government or its - Sometimes used interchangeably with armistice but is not generally
authorized agent to the subjects of the enemy state to travel generally regarded as a cease-fire with conditions attached.
in belligerent territory. 5. Capitulation
- Surrender of military forces, places or districts in accordance with
the rules of military honor.
4. Safe-conduct
- A pass given to an enemy subject or to an enemy vessel allowing
passage between defined points. ✓ Suspension of Arms v. Armistice
5. Safeguard SUSPENSION OF ARMS ARMSTICE
- A protection granted by a commanding officer either to enemy PURPOSE
persons or property within his command. Military Political
6. License to Trade MAY BE CONCLUDED BY
- A permission given by the competent authority to individuals to Agreement by local commanders Only by the commanders-in-chief
carry on trade even though there is a state of war. of the belligerent governments
GENERAL LICENSE FORM
- Grants to all he subjects of the enemy state or to all its own subjects May be oral Must be in writing
the right to trade in specified places or in specified articles.
SPECIAL LICENSE ✓ International Crimes under the Nuremberg Charter
- Grants to a certain person the right to trade in the manner specified - Principle VI
in his license. CRIMES Planning, preparation, initiation or waging of a
AGAINST war of aggression or a war in violation of
✓ Suspension of Hostilities PEACE international treaties, agreements or assurances
1. Suspension of Arms or participation in a common plan or conspiracy
- A temporary cessation of the hostilities by agreement of the local for the accomplishment of any of the said acts.
commanders for such purposes as the gathering of the wounded and WAR CRIMES Violations of the laws or customs of war which
the burial of the dead. include, but are not limited to, murder, ill-
2. Armistice treatment or deportation to slave-labor or for any
- Suspension of all hostilities within a certain area (local) or in the other purpose of civilian population of or in
entire region of war (general) agreed upon by the belligerent occupied territory, murder or ill-treatment of
governments, usually for the purpose of arranging the terms of prisoners of war, of persons on the seas, killing
peace. of hostages, plunder of public or private
3. Cease-fire property, wanton destruction of cities, towns, or
villages, or devastation not justified by military
necessity.

53 JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes

CRIMES Murder, extermination, enslavement, group of States while

group of great powers. The act of
AGAINST deportation and other inhuman acts done against maintaining certain rights neutralization generally took the
HUMANITY any civilian population, or persecutions on towards the belligerents and form of a treaty between the parties
political, racial or religious grounds, when such observing certain duties
and was a rule accompanied by a
acts are done or such persecutions are carried on prescribed by customary law or guarantee of the independence and
in execution of or in connection with any crime by international conventions orterritorial integrity of the
against peace or any war crime. treaties. neutralized state.
Dependent solely on the The result of a treaty wherein the
attitude of the neutral state, duration and the other conditions of
which is free to join any of the
neutralization are agreed upon by
belligerents any time it sees fit
the neutralized state and other
✓ Yamashita Case powers.
FACTS: Obtains only during war Intended to operate in time of peace
The commanding general of the Imperial Japanese Forces in the as well as in time of war
Philippines was convicted of war atrocities by a military commission Only states may become neutral Portions of states, like islands,
and was sentenced to death by hanging. He questioned his trial and rivers and canals may be
conviction on the ground that the military commission had no authority neutralized.
or jurisdiction to try him.
✓ Neutral State v. Neutralized State
ISSUE: NEUTRAL STATE NEUTRALIZED STATE
Whether or not the commanding general of the Imperial Temporary neutrality in time of Permanent neutrality
Japanese Forces is guilty of war crimes war between other States.
Purely discretionary upon the Neutrality is guaranteed by
RULING: latter explicit agreement of a limited
Yes. The laws of war imposes upon a commander the duty to number of powers
take any appropriate measures within his powers to control the troops No obligation to maintain its Has an obligation to remain as
under his command to prevent acts which constitute violation of the attitude of neutrality such
laws of war. Hence, petitioner could be legitimately charged with
personal responsibility arising from his failure to take such measure. In ✓ Rules between Belligerent States and Neutral States
this regard the SC invoked Art. 1 of the Hague Convention No. IV of NEUTRAL STATES
1907, as well as Art. 19 of Hague Convention No. X, Art. 26 of 1929 1. Right and duty to abstain from taking part in the hostilities and
Geneva Convention among others. from giving assistance to either belligerent;
2. To prevent its territory and other resources from being used in
✓ Neutrality v. Neutralization the conduct of hostilities by the belligerents;
NEUTRALITY NEUTRALIZATION 3. To acquiesce in certain restrictions and limitations that the
The legal position of a State Are States upon which the status of belligerents may find necessary to impose.
which remained aloof from a permanent neutrality in all future BELLIGERENT STATES
war between two other States or wars was formally imposed by a

54 JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes
1. To respect the status of the neutral state, avoiding any act that
will directly or indirectly involve it in their conflict; and
2. To submit to any lawful measures, it may take to maintain or
protect its neutrality.
✓ Duties of Belligerent and Neutral States
- Convention on the Rights and Duties of Neutral Powers and Persons
in Case of War on Land
1. The territory of neutral Powers is inviolable. Belligerent are
forbidden to move troops or convoys of either munitions of war
or supplies across the territory of a neutral Power.
2. Corps of combatants cannot be formed nor recruiting agencies
opened on the territory of a neutral Power to assist the
belligerents.
3. A neutral Power is not called upon to prevent the export or
transport, on behalf of one or other of the belligerents, of arms,
munitions of war, or, in general, of anything which can be of use
to an army or a fleet.
4. A neutral Power is not called upon to forbid or restrict the use
on behalf of the belligerents of telegraph or telephone cables or
of wireless telegraphy apparatus belonging to it or to companies
or private individuals.
5. Every measure of restriction or prohibition taken by a neutral
power in regard to the matters referred to in Articles 7 and 8
must be impartially applied by it to both belligerents.
✓ Destruction or the use of neutral territories, when is it allowed?
- Generally, neutral territory is inviolable and cannot be used by the
belligerents for:
a. Movement of their troops
b. Transport of war supplies
c. Erection of wireless stations exclusively for military purposes
d. Recruiting of soldiers
e. Undertaking of military operations in general.
- Allowed only for:
a. The passage of sick and wounded troops; provided, personnel
and materials of war are not also carried.
55
b. Persons bound for enlistment in the belligerent armies may cross
the neutral frontiers if they do so individually or separately and
not as a body.
✓ Right of Visitation and Search
- Belligerent warships and aircraft have the right to visit and search
neutral merchant vessels on the high seas for the purpose of
determining whether they are in any way connected with the
hostilities.
✓ Prize and Prize Court and its Jurisdiction
PRIZE
- Vessels captured if they are engaged in hostile activities, if they
resist visit and search or if there is reasonable suspicion that they are
liable to confiscation.
PRIZE COURTS
- Domestic tribunals of a belligerent State that determined the legality
of the capture by a belligerent of enemy or neutral merchant vessels
and of their liability to confiscation.
- Title to prize vests in the captor upon confirmation by the prize court
of the validity of the capture, except when the vessels or goods are
public enemy property, in which case title vests immediately upon
capture.
JURISDICTION
- Derived from national law, the rules which they applied were the
rules of International Law, except insofar as special national
legislation might have prescribed a particular interpretation for these
rules.
✓ Rules on Treatment of Goods and its exceptions
- Declaration of Paris of 1856
1. Enemy goods under a neutral flag are not subject to capture,
except contraband of war.
2. Neutral goods under an enemy flag are not subject to capture,
except contraband of war.
JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes

✓ Contraband and its types

- Refers to any item or goods that are of a military character or which ✓ When are they applied?
may give military advantage that a belligerent may lawfully seize or - Contraband are liable to capture from the time they leave the port in
confiscate from neutrals who are attempting to supply them to its which they are loaded and until they reach their final hostile
enemy. destination.
ABSOLUTE CONDITIONAL FREE LIST
CONTRABAND CONTRABAND ✓ Continuous voyage v. Continuous transport
Necessarily useful for Has both civilian and Goods useful for CONTINUOUS VOYAGE CONTINUOUS TRANSPORT
war under all military purposes (i.e., war and bound for When the goods are reloaded at When they are reloaded on
circumstances (i.e., food and clothes) the belligerents but the intermediate port on the same another vessel or other form of
rifles, ammunition) exempted from the vessel transportation
law on contraband
for humanitarian ✓ Blockade and its requisites
reasons (i.e., - A hostile operation by means of which the vessels and aircraft of
medicine and one belligerent prevent all other vessels, including those of neutral
medical supplies) states, from entering or leaving ports or coasts of the other
Subject to seizure so May be seized only belligerent, the purpose being to shut off the place from international
long as they are bound when it can be shown commerce and communication with other states.
for enemy or enemy that they are destined REQUISITES
held territory for the armed forces or 1. Binding, i.e., duly communicated to the neutral states.
the authorities of the 2. Effective, meaning that it is maintained by adequate force so
belligerent as to make ingress to or egress from the port dangerous.
government 3. Established by the proper authorities of the belligerent
government, generally the head of state.
✓ Doctrines regarding Contrabands 4. Limited only to the territory of the enemy and not extended
DOCTRINE OF Goods intended for civilian use which may to neutral places or international rivers; and
ULTIMATE ultimately find their way to and be 5. Impartially applied to all states alike.
CONSUMPTION consumed by belligerent forces are also
liable to seizure on the way. ✓ Who establishes a blockade?
DOCTRINE OF If belonging to the same owner, innocent - The commander of the blockading Government or the naval
INFECTION goods shipped together with contraband authorities acting it its name.
may also be confiscated under this doctrine.
It becomes confiscable if they contraband ✓ Right of Angary
are more than one-half of the total cargo by - The right of a belligerent state, in cases of extreme necessity, to
weight, value, freight or volume. destroy or use neutral property on its own or on enemy territory, or
DOCTRINE OF The liability of contraband to capture is on the high seas.
ULTIMATE determined not by their ostensible but by - Neutral vessels in the port of a belligerent State may be seized and
DESTINATION their real destination. made to transport troops and supplies.

56 JPEDLP
 PUBLIC INTERNATIONAL LAW – Sy Notes

1. That the property is in the territory under the control or jurisdiction

✓ Can a neutral vessel be liable for condemnation for unneutral of the belligerent;
service? 2. That there is urgent necessity for the taking; and
- Yes, if: 3. That just compensation is paid to the owner.
1. If it is making a voyage special with a view to the transport of
individual passengers who are embodied in the armed forces of the ✓ Is it similar to eminent domain?
enemy or with a view to the transmission of information in the - Yes.
interest of the enemy;
2. If with the knowledge of the owner, or the one who charters the ✓ How is a treaty of neutrality terminated?
entire vessel, or of the master, it is transporting a military 1. When the neutral state itself joins the war
detachment of the enemy or one or more persons who, during the - In this case, the state will be governed by the laws of war in its
voyage, lend direct assistance to the operations of the enemy. relations with other belligerent states and the laws of neutrality in its
✓ Rules to consider for unneutral service relations with all other states.
- Consists of acts, of a more hostile character than carriage of 2. Upon the conclusion of war
contraband or breach of blockade, which are undertaken by - All states will again be governed by the laws of peace.
merchant vessels of a neutral state in aid of any of the belligerents.
NEUTRAL VESSEL LIABLE TO CONDEMNATION FOR
UNNEUTRAL SERVICE
1. If it is making a voyage special with a view to the transport of
individual passengers who are embodied in the armed forces of
the enemy or with a view to the transmission of information in
the interest of the enemy; or
2. If with the knowledge of the owner, or the one who charters the
entire vessel, or of the master, it is transporting a military
detachment of the enemy or one or ore persons who, during the
voyage, lend direct assistance to the operations of the enemy.
NEUTRAL VESSEL ALSO LIABLE TO CONDEMNATION
AND TO BE TREATED AS A MERCHANT VESSEL OF THE
ENEMY
1. If it takes a direct part in the hostilities
2. If it is under the order or control of an agent placed on board by
the enemy government
3. If it is chartered entirely by the enemy government
4. If it is at the time exclusively either devoted to the transport of
enemy troops or the transmission of information in the interest
of the enemy.

✓ Requisites for the Right of Angary

57 JPEDLP