POINTERS FOR REVIEW IN INTERNATIONAL LAW MIDTERMS

 Public International Law

- Branch of law which regulates the relations of states and other
entities which have been granted international personality.
- deals also with their relation with persons, natural or juridical .

 International Comity
- (Comitas Gentium) refers to rules of politeness, convenience, and
goodwill observed by states in their mutual intercourse without
being legally bound by them.

- state will refrain from exercising its jurisdiction is it is unreasonable

•Factors to consider in determining unreasonableness:
(a). Link or connection of the activity to the territory of the
regulating
state
(b). Character of the activity to be regulated
©Existence of justified expectations that might be protected or hurt
by the regulation
d. Likelihood of conflict with regulation by another state

 Schools of thought/bases of Public International Law

1. Natural Law
- rules of conduct discoverable by every individual in his own
conscience and through application of his right reasons

2. Positivist
- agreement of sovereign states to be bound by it (express in
conventional law, and implied in customary law, and presumed in
general principle)

3. Eclectic or Grotian School

- international law is binding partly because it good and right and
partly because states agreed to be bound by it

4. Command theory
- Law consists of commands originating from a
sovereign and backed up by threats of sanction if
disobeyed

- International law is not law because it does not

come from a command of a sovereign

5. Consensual theory
 - International law derives its binding force from the
consent of states

- Treaties—expression of consent

- Custom—voluntary adherence to common practices,

is seen as expression of consent

 Sources of Public International Law

1. PRIMARY SOURCES :
(1)Treaties and Conventions
 Treaties are binding only on States which
become parties to them and the choice of
whether or not to become party to a treaty
is entirely one for the State – there is no
requirement to sign up to a treaty.

(2)Customary International Law /

International Customs
 customary law as this is both the oldest
source and the one which generates rules
binding on all States.

 Customary law is not a written source. A

rule of customary law, e.g., requiring States
to grant immunity to a visiting Head of
State, is said to have two elements. First,
there must be widespread and consistent
State practice – ie States must, in general,
have a practice of according immunity to
a visiting Head of State. Secondly, there has
to be what is called “opinio juris”, usually
translated as “a belief in legal obligation; ie
States must accord immunity because they
believe they have a legal duty to do so.

(3)General Principles of Law Recognized by Civilized Nations

 Article 38 of the ICJ Statute of the ICJ
They are most often employed where the ICJ
or another international tribunal wants to
adopt a concept such as the legal
 personality of corporations (eg in the
Barcelona Traction Co. case (1970)) which is
widely accepted in national legal systems.
But international law seldom adopts in its
entirety a legal concept from a particular
national legal system; instead the search is
for a principle which in one form or another is
recognized in a wide range of national legal
systems.

2. SECONDARY SOURCES :
(1)Decisions of Courts
 Article 38(1)(d) refers to judicial decisions as
a subsidiary means for the determination of
rules of law.

 Article 38(1)(d) does not distinguish between

decisions of international and national
courts. The former are generally considered
the more authoritative evidence of
international law on most topics (though not
those which are more commonly handled
by national courts, such as the law on
sovereign immunity). But decisions of a
State’s courts are a part of the practice of
that State and can therefore contribute
directly to the formation of customary
international law.

(2)Teachings of publicists
 The writings of international lawyers may also
be a persuasive guide to the content of
international law but they are not
themselves creative of law and there is a
danger in taking an isolated passage from a
book or article and assuming without more
that it accurately reflects the content of
 international law

 Divisions of International Law

1. The Laws of Peace
1. Governs the normal relations of states

2. The Laws of War

1. rules during periods of hostilities

3. The Laws of Neutrality

1. Rules governing states not involved in the hostilities in
relation to states in war

 Doctrine of incorporation and transformation

1.

 Subjects of International Law

1. Vatican - The City of the Vatican is proximate to a State legal person in Rome,
under the Holy See’s exclusive sovereignty and jurisdiction, with its own
territory, population, and treaty making capacity with the sole purpose to
support the Holy See as a religious entity. The population of the City of the
Vatican consists of cardinals, the resident fonctionnaires and representatives
of the Pope in foreign States. The Pope is the Head
of both the City of the Vatican and the Holy See.
Pursuant to the Lateran Pacts (11 Feb. 1929, and 7 June 1929), the City of the
Vatican is a State permanently neutral. In 1984, Vatican City was registered
as a world cultural and natural heritage site in terms of the UNESCO
 Convention of November 16th 1972, which guarantees the protection of such
sites. The whole area of Vatican City is under the protection of the Hague
Convention of May 14th 1954 regarding the safeguarding of cultural heritage
sites in the case of armed conflicts, which means international protection of
the territory. Vatican City State is also internationally recognized as a moral,
artistic and cultural heritage site that merits respect and protection as a
treasure that belongs to the whole of humanity.
The Holy See and the City of the Vatican are two distinct legal persons,
confirmed by the fact that after the City of the Vatican under the Pope’s
jurisdiction was annected by the Kingdom of Italy in 1870, the Holy See was
continuously recognized as independent subject of international law. States
had diplomatic relations and concluded international conventions with the
Holy See.

2. Holy See - The Holy See (in Latin: Sancta Sedes) embraces the Pope as a
person and office and the Pope’s entire administration. In a Treaty and
Concordat in 1929, Italy recognized „the sovereignty and jurisdiction of the
Holy See in the international domain“ and its exclusive sovereignty and
jurisdiction over the City of the Vatican“. The Holy See is a religious entity
apart from its territorial base in the Vatican City.
The Holy See maintains diplomatic relations with many States and
international organizations and has been a party to multilateral conventions,
included those of the law of the sea (1958). The Holy See is a member to
some international organizations ( IAEA - the International Atomic Energy
Agency, and the UNWTO - the UN World Tourism Organization), and a
permanent observer in other international organizations (FAO, UNESCO),
one example of the latter being the UN General Assembly. On 1 July 2004, the
General Assembly adopted a Resolution, by acclamation, confirming and
strengthening the rights of the Holy See as a Permanent Observer in the UN.
The Holy See now enjoys, inter alia, the right to participate in the general
debate of the General Assembly; the right of reply; the right to have its
communications issued and circulated directly as official documents of the
Assembly; and the right to cosponsor draft resolutions and decisions that
make reference to the Holy See.
Some treaties of the Holy See are named concordats.
The permanent diplomatic representatives of the Holy See are nuncios
(Latin: Nuntius).
Although both the Pope alone and with the Roman Curia (through the Roman
Curia the Pope governs the Catholic Church) are named the Holy See, the
Holy see is not identical with the Catholic Church that is a separate legal
entity. The Catholic Church is not subject of international law; the Pope (the
Holy See) as Head of the Catholic Church represents the Churches external
and diplomatic interests.

3. Belligerent - BELLIGERENT OR INSURGENT COMMUNITIES

 Belligerent and insurgent bodies within a State may enter into legal relations
and conclude agreements on the international plane with States and other
belligerents and insurgents. Such communication with the belligerents and
insurgents is considered de facto recognition of them under international
law. That way, they may acquire de facto authority in control of a specific
territory.
A belligerent community often represents a political movement aiming at
independence and secession. But belligerents may be connected with self-
determination, or personality of non-self-governing peoples.

4. State
 A group of people, living together in a fixedterritory,
organized for political ends under anindependent
government, and capable of enteringinto international
relations with other states.

Doctrine of Acts of State

Every sovereign state is bound to respect the
independence of every other sovereign state, and the
courts of one country, will not sit in judgement on the
acts of the government of another done within its own
territory

•LEGAL CRITERIA OF STATEHOOD:

• Article I of the 1933 Montevideo
Convention on Rights and Duties of States:
a) a permanent population;
b) a defined territory;
c) government,
d) capacity to enter into the relations with
the other States.

5. Individuals
(Individuals as subjects of international law) :
1. natural persons (limited obligations under
 international law);
2. legal persons (corporations).

1. A rule that an individual cannot be a „subject of

international law“is absent from international law. And
both, natural and legal
persons have certain rights and obligations under
international law.

 State
1.

 Theories on recognition of states

1. Declaratory School
 Merely affirms an existing fact like the possession by
the state of the essential elements.

 Discretionary and political

2. Constitutive School
 It is the act of recognition that constitutes the entity
into an international person.

 Compulsory and legal

 May be compelled once the elements of a state are

established

 Elements of the state

1. People
- Refers to the human beings living within its territory. They should
be of both sexes and sufficient in number to maintain and
perpetuate themselves

 Individuals of different races, language sand religions

very often actually from one people that is to say, the
people of one state
  Citizens, Nationals, Subjects

2. Territory
- Is the fixed portion of the surface if the earth in which the people of
the state reside

 A defined territory is necessary for jurisdictional

reasons and in order to provide for the needs of the
inhabitants

As a practical requirement:
It should be big enough to be self-sufficient and
small enough to be easily administered and defended.

3. Government
- Defined as the agency through which the will of the state is
formulated, realized and expressed.
- In international law, it is the instrumentality that represents the
state in its dealings with other international persons. The state can
assert rights, and is held responsible, through its government.

4. Sovereignty
 Supreme and uncontrollable power inherent in a State
by which that State is governed. The government
possesses full control over its own affairs within a
territorial geographical area or limit.

KINDS OF SOVEREIGNTY:
1. Internal
 Supreme authority of a state within its territory

2. External
 Does not have any force in foreign territory

Q : Is sovereignty absolute?
A : In the domestic sphere – YES!
In international sphere – NO!

 Territorial jurisdiction

 Mode of acquiring and loss of land territory

1. Discovery and Occupation
  Original mode by which territory not belonging to any
state or TERRA NULLIUS is placed under the
sovereignty of the discovering state

 Need not be uninhabited provided that it can be

established that the natives are not sufficiently civilized
and can be considered possessing not rights of
sovereignty but only rights of habitation

REQUISITES FOR A VALIDDISCOVERY AND

OCCUPATION

-Possession
-Administration
Inchoate Title of Discovery
Is acquired by the claimant state pending compliance
with the second requirement which is administration

2. Prescription
 Continuous and uninterruptedpossession over a long
period of time, justlike in civil law.

 In international law, however, there isno rule of thumb

as to the length of time needed for acquisition of
territory through prescription.

Grotius Doctrine if Immemorial Prescription:

Uninterrupted possession going beyond memory

3. Cession (by treaty)

Territory is transferred from 1 state to another by
agreement between them (sale, donation,
barter/exchange and testamentary disposition)

4. Subjugation
Having been previously conquered oroccupied in the
courses of war of the enemy,is formally annexed to it at
the end of thewar. Conquests alone inchoate right since
itis the formal act of annexation thatcompleteness
acquisition.

5. Accretion
Based on
Accessio Cedat Principali
 accomplished through both natural orartificial
processes as by the gradual andimperceptible deposit of
soil on the coasts of the country through the action of
the water or by reclamation projects.

 Airspace/aerial domain
1. Each state has exclusive jurisdiction over the air space
above its
territory
2. Sovereignty over airspace extends only until where
outer space begins
3. Consent for transit must be obtained from the subjacent
nation
4. State Aircraft—aircraft used in military, customs and
police services
5. ―No state aircraft of a contracting State shall fly over
the territory of
another State or land thereon without authorization by
special
agreement or otherwise, and in accordance with the
terms thereof.‖
6. (Art. 3[a] of Chicago Convention on International Civil
Aviation)
7. Aircraft must not only not be attacked unless there is
reason to suspect
that the aircraft is a real threat but also that a warning
to land or
change course must be given before it is attacked
(Lissitzyn)
8.  Civilian aircraft should never be attacked

 Archipelago
1. The waters around, between and connecting the islands
of the archipelago, regardless of their breadth and
dimensions, form part of the internal waters of the
Philippines. (2nd sentence, Article I, 1987 Constitution
 UNCLOS
1. Territorial sea
 - The belt of the sea located between the coast and internal waters of
the coastal state on the one hand and the high seas on the other,
extending up to 12 nautical miles from the low water mark or in
case of archipelagic state, from the baseline.

2. Contiguous zone
- This refers to the waters beyond the territorial seas but not in
excess of twelve miles from the outer limits of the territorial sea
over which the coastal state exercises a protective jurisdiction to
prevent the punish infringements of its customs, fiscal, immigration
or sanitary regulations (1982 Convention on the Law of the Sea)

3. Exclusive economic zone

- It is that expanse of sea extending two hundred nautical miles from
the coast or baselines of the state over which it asserts exclusive
jurisdiction and ownership over all living and non-living resources
found therein

4. Continental shelf
- Is the seabed and subsoil of the submarine areas that extend beyond
its territorial sea throughout the natural prolongation of its land
territory to the outer edge of the continental margin, or to a distance
of 200 nautical miles from the baselines from which the breadth of
the territorial sea is measured where the outer edge of the
continental margin does not extend up to that distance (Article 76,
par 1, UNCLOS)

 Philippine Territory
Philippine Baseline Laws:
1. Normal Baseline Method
1. Drawn from the low-water mark of the coast, to the
breadth claimed, following its sinuousness and
curvatures but excluding the internal waters in the bays
and gulfs.

2. Straight Baseline Method

1. Joining appropriate points may be employed in
drawing the baseline from which the breadth of th
eterritorial seas is measured. (Art 7 UNCLOS)

 Presidential and parliamentary form of government

Presidential
 - One in which the state makes the executive constitutionally
independent of the legislature as regards his policies and acts

Parliamentary
- One in which the state confers upon the legislature the power to
terminate the tenure of office of the real executive

 De jure and de facto government/recognition

De jure recognition“ means recognition of a de jure government, not the act of

recognition.
The terminology implies that a de facto government does not have the same legal
basis as a de jure
government. At the same time, Malanczuk states that it is difficult to find any body of
legal rules by which to determine the relevant legal basis.

As a rule, a State is recognized de jure, but there are few examples of States being
recognized de facto –
for instance, in 1940, the United Kingdom granted only de facto recognition to the
Soviet annexation of
Estonia, Latvia and Lithuania.
In addition to governments,
de facto can be recognized also States and territorial claims, subject to the same
principles:

De jure recognition – recognition by an express statement;

De facto recognition – recognition is not express, but implied (e.g.: from trading).
Since 1945, the UN and other international organizations influence recognition of
States and
governments.

 State recognition
- Recognition of States is the act of acknowledging the capacity of an
entity to exercise rights belonging to statehood

 Doctrine of effective occupation

- Under this doctrine, discovery of terra nulliusis not enough to
acquire title to the discovered territory

 Flag state and flag of convenience

-
TYPE OF EXAM
 True or false
 Enumeration
 Definition of terms
 Essay

HISTORICAL DEVELOPMENT OF PUBLIC INTERNATIONAL LAW

Ancient IL governed exchange of diplomatic emissaries, peace treaties, etc. in world of ancient Romans
and earlier. The progressive rule of

jus gentium

,seen as a law “common to all man,” became the law of the vast Roman Empire. Modern IL began with
the birth of nation-state sin the Medieval Age. Governing principles were derived from Roman Law or
Canon Law which drew from natural law. Hugo Grotius considered father of modern IL. What he called
“law of the nations” was later given the name “IL” by Jeremy Bentham. The positivist approach
reinterpreted IL not on basis of concepts derived from reason but rather on basis of what actually
happened in the conflict between states. With emergence of notion of sovereignty came the view of law
as commands backed up by threats of sanction. In this view IL is not a law because not from command
of sovereign.

Stateless Persons – persons who have no nationality

a. De jure stateless – persons who have lost their nationality, if they had

one, and have not acquired a new one

b. De factor stateless – persons who have a nationality but to whom

protection is denied by their state when out of the State

Mejoff v. Director of Prisons

Facts:

Boris Mejoff, a Russian, was captured as a Japanese spy by the US Army

Counter Intelligence Corps on March 18, 1948. He was turned over to the Phil

Commonwealth Government for appropriate disposition. His case was decided

on by the Board of Commissioners of Immigration who declared him as an

illegal alien. The Board ordered his immediate deportation. In the meantime,
we was placed in prison awaiting the ship that will take him back home to

Russia. Two Russian boats have been requested to bring him back to Russia but

the masters refused as they had no authority to do so. Two years passed and

Mejoff is still under detention awaiting the ship that will take him home.

This case is a petition for habeas corpus. However, the respondent held that

the Mejoff should stay in temporary detention as it is a necessary step in the

process of exclusion or expulsion of undesirable aliens. It further states that is

has the right to do so for a reasonable length of time.

Issue:

w/n Mejoff should be released from prison awaiting his deportation.

Held:

The Supreme Court decided that Mejoff be released from custody but be placed

under reasonable surveillance of the immigration authorities to insure that he

keep peace and be available when the Government is ready to deport him. In

the doctrine of incorporation, the Philippines in its constitution adops the

generally accepted principles of international law as part of the law of Nations.

Also, the Philippines has joined the United Nations in its Resolution entitled

―Universal Declaration of Human Rights‖ in proclaiming that life and liberty

and all other fundamental rights shall be applied to all human beings. The

contention that he remains a threat of to the security of the country is

unfounded as Japan and the US or the Phils are no longer at war