PUBLIC

INTERNATIONAL
LAW - REVIEWER
Based on the book of Fr. Joaquin Bernas

FREDERICK B. LAGRADA JR.

FAR EASTERN UNIVERSITY – INSTITUTE OF LAW | JD4202
 PUBLIC INTERNATIONAL LAW | derF Notes

CHAPTER 1
NATURE OF INTERNATIONAL LAW NOTE: In the aftermath of World War I, the victors decided to create an institution
designed to prevent the recurrence of world conflagration. Thus, the League of Nations
INTERNATIONAL LAW - the law which deals “with the conduct of states and of was bom. Its membership consisted of 43 states which included the five British dominions
international organizations and with their relations inter se, as of India, Canada, South Africa, Australia and New Zealand. The United States did not
well as with some of their relations with persons, whether join.
natural or juridical.”
The League of Nations failed to prevent World War II. Thus, the formulation of a
SCOPE OF IL new avenue for peace became the preoccupation of the victors. Hence was founded
a. regulation of space expeditions; the United Nations in 1945. New states, carrying a legacy of bitterness against colonial
b. the division of the ocean floor; powers, became members of the UN.
c. the protection of human rights;
d. the management of the international financial system; Three Major Groupings of States
e. and the regulation of the environment. i. Western States
ii. Socialist states
Beyond the primary concern for the preservation of peace, it now covers all the iii. Developing countries
interests of contemporary international and even domestic life.
CHAPTER 2
THEORIES ABOUT INTERNATIONAL LAW SOURCES OF INTERNATIONAL LAW
a. COMMAND THEORY - consists of commands originating from a sovereign and
backed up by threats of sanction if disobeyed. In this view, international law is FORMAL SOURCES MATERIAL SOURCES
not law because it does not come from a command of a sovereign. Neither Refer to the various processes by which - not concerned with how rules come
treaties nor custom come from a command of a sovereign. rules come into existence. into existence but rather with the
b. CONSENSUAL THEORY - international law derives its binding force from the a. Legislation; substance and content of the
consent of states. Treaties are an expression of consent. Likewise, custom, as b. Treaty making; obligation. They identify what the
voluntary adherence to common practices, is seen as expression of consent. c. Judicial decision; and obligations are.
c. NATURAL LAW THEORY - posits that law is derived by reason from the nature of d. Practice of the states. - state practice, UN Resolutions,
man International law is said to be an application of natural reason to the treaties, judicial decisions and the
nature of the state-person. writings of jurists are material sources
d. SOME DISSENTERS - see no objective basis for international law. They see in so far as they identify what the
international law as a combination of politics, morality and self-interest hidden obligations are.
under the smokescreen of legal language. - sometimes referred to as “evidence”
of international law.
PUBLIC INTERNATIONAL LAW PRIVATE INTERNATIONAL LAW
Sometimes referred to only as Commonly called ‘conflicts of laws.’ It is interesting, however, that the most widely accepted statement of the
‘international law.’ “sources” of international law, that is, Article 38(1) of the Statute of the International
Court of Justice, does not speak of sources. Rather, Article 38 is primarily a directive to
Governs the relationships between and Domestic law which deals with cases the Court on how it should resolve conflicts brought before it. Article 38 says:
among states and also their relations with where foreign law intrudes in the domestic
international organizations and individual sphere where there are questions of the 1. The Court, whose function is to decide in accordance with international law
persons. applicability of foreign law or the role of such disputes as are submitted to it, shall apply:
foreign courts.
a. international conventions, whether general or particular, establishing rules
SIGNIFICANT MILESTONES IN THE DEVELOPMENT OF INTERNATIONAL LAW expressly recognized by contesting states;
a. THE PEACE OF WESTPHALIA, which ended the Thirty Years War (1618-1648) and b. international custom, as evidence of a general practice accepted as law;
established a treaty based framework for peace cooperation. (It was at this c. the general principles of law recognized by civilized nations;
time that pacta sunt servanda arose.) d. subject to the provisions of Article 59, judicial decisions and the teachings
b. CONGRESS OF VIENNA (1815), which ended the Napoleonic Wars and created of the most highly qualified publicists of the various nations, as subsidiary
a sophisticated system of multilateral political and economic cooperation. means for the determination of rules of law.
c. COVENANT OF THE LEAGUE OF NATIONS (1920) which included the Treaty of
Versailles which ended World War I. 2. This provision shall not prejudice the power of the Court to decide ex aequo et
bono, if the parties agree thereto.

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- Article 38 is a declaration by states that these are the laws under which they are
willing to be bound. Thus, another statement of sources is the Restatement (Third)
of Foreign Relations Law of the United States which says:
1. A rule of international law is one that has been accepted as such by the
international community of states:
a. In the form of customary law;
b. By international agreement;
c. by derivation from general principles common to the major legal systems
of the world.
2. Customary international law results from a general and consistent practice of
states followed by them from a sense of legal obligation.
3. International agreements create law for the states parties thereto and may
lead to the creation of customary international law which such agreements
are intended for adherence by states generally and are in fact widely
accepted.
4. General principles common to the major legal systems, even if not
incorporated or reflected in customary law or international agreements, may
be invoked as supplementary rules of international law where appropriate.
- Briefly, therefore, the “sources” of international law are custom, treaties and other
international agreements, generally recognized principles of law, judicial decisions
and teachings of highly qualified and recognized publicists.
SOURCES | CUSTOM OR CUSTOMARY INTERNATIONAL LAW
- “a general and consistent practice of states followed by them from a sense of
legal obligation.”
- Contains the two basic elements of custom: the material factor, that is, how states
behave, and the psychological or subjective factor, that is, why they behave the
way they do.
a. The MATERIAL FACTOR: practice of states or usus
i. Duration – can either be short or long.
ii. Consistency
iii. Generality of the practice of states.
In the case of Paquete Havana, fishing vessels were exempted from capture as prize of
war as a result of long, almost immemorial, practice. By an ancient usage among
civilized nations, beginning centuries ago, and gradually ripening into a rule of
international law, coast fishing vessels, pursuing their vocation of catching and bringing
in fresh fish, have been recognized as exempt, with their cargoes and crews, from
capture as prize of war.
However, in the case of North Sea Continental Shelf Cases, the Court indicated that a
short duration, by itself, will not exclude the possibility of a practice maturing into custom
provided that other conditions are satisfied. Hence, duration is not the most important
element. More important is the consistency and the generality of the practice.
The basic rule on consistency, that is, continuity and repetition, was laid down in the
Asylum Case. Herein, the ICJ ruled that Colombia had not proved the existence, either
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
regionally or locally, of a constant and uniform practice of unilateral qualification as a
right of the State of refuge and an obligation upon the territorial State. The facts
submitted to the Court disclosed too much contradiction and fluctuation to make it
possible to discern therein a usage peculiar to Latin America and accepted as law. It
therefore followed that Colombia, as the State granting asylum, was not competent to
qualify the nature of the offence by a unilateral and definitive decision binding on Peru.
Bears stressing in Nicaragua v US where ICJ held that uniformity and generality of
practice need not be complete, but it must be substantial. In order to deduce the
existence of customary rules, the Court deems it sufficient that the conduct of states
should, in general, be consistent with such rules, and that instances of state conduct
inconsistent with a given rule should generally have been treated as breaches of that
rule, not as indications of the recognition of a new rule.
b. OPINIO JURIS - the belief that a certain form of behavior is obligatory, is what
makes practice an international rule. Without it, practice is not law.
- The existence of opinio juris is a matter of proof. The burden of proving its existence
falls on the state claiming it.
For a new customary rule to be formed, not only must the acts concerned ‘amount to a
settled practice,’ but they must be accompanied by the opinio juris sive necessitatis.
Either the States taking such action or other States in a position to react to it, must have
behaved so that their conduct is “evidence of a belief that this practice is rendered
obligatory by the existence of a rule of law requiring it.” [Nicaragua v US]
NOTES:
- Even humanitarian consideration by itself does not constitute opinio juris.
- It is also possible for customary law to develop which will bind only several states, or
even only two states. But the party claiming it must prove that it is also binding on
the other party.
EFFECT OF CUSTOMS TO DISSENTING STATES
General Rule: Dissenting states are bound by custom.
Exception: Unless they had consistently objected to it while the custom was
merely in the process of formation.
- Dissent, however, protects only the dissenter and does not apply to other states.
- A state joining the international law system for the first time after a practice has
become law is bound by such practice.
- It is also possible that after a practice has been accepted as law, contrary
practice might arise. Over time, if the contrary practice should gain general
acceptance, it might instead become the law.
ACCEPTABLE EVIDENCE OF STATE PRACTICE
Various forms of evidence may point to state practice. These can be:
i. Treaties
ii. diplomatic correspondence
iii. statements of national leaders and political advisers and;
iv. conduct of states
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 PUBLIC INTERNATIONAL LAW | derF Notes
- By themselves, however, they do not constitute customary law unless - If a later treaty is contrary to a customary rule that has the status of jus cogens,
characterized by opinio juris. custom will prevail. This is because of Article 53 of the Vienna Convention on the
law of Treaties1.
INSTANT CUSTOM - Where custom develops after a treaty, the rule is not clear. The logical rule
Comes about as a spontaneous activity of a great number of states supporting perhaps should be that the later custom, being the expression of a later will, should
a specific line of action. Example: In the after- math of the attack on the Word Trade prevail. But such an approach would militate against the certainty of treaties. In
Center in New York, a coalition of forces arose in a matter of months supportive of the practice, however, an attempt is made to keep the treaty alive by efforts at
action taken by the United States against Osama Bin Laden. At least one writer has reconciling a treaty with the developing custom.
suggested that this united action may have given birth to instant customary law
classifying the attack as an armed attack under Article 51 of the UN Charter justifying SOURCES | GENERAL PRINCIPLES OF LAW RECOGNIZED BY CIVILIZED NATIONS
collective self-defense. - Also referred to as “general principles of law recognized by or common to the
world’s major legal systems.”
THE MARTENS CLAUSE - This has reference not to principles of international law but to principles of
- First inserted by the Russian publicist Fyodor Martens and has found its way into a municipal law common to the legal systems of the world.
number of treaties. - Supplementary rules of international law. These may be found in “judicial decisions
- What the clause does is to put the “laws of humanity” and the “dictates of public and the teachings of the most highly qualified publicists of the various nations”
conscience” on the same level as “usages of states” or usus thus suggesting that which the Statute refers to as “subsidiary means for the determination of rules of
even without practice or usus or at least without consistent practice there can law.
emerge a principle of law based on laws of humanity and the dictates of public - The affirmation of general principles of law found in domestic systems as a source
conscience. In other words, one need not wait for thousands of civilians to be killed of international law makes up for the fact that there is no international legislative
before a ban becomes effective. system.

SOURCES | TREATIES In the 1928 Chorzow Factory case, the Permanent Court declared that “it is a general
- Determine the rights and duties of states just as individual rights are determined by conception of law that every violation of an engagement involves an obligation to
contracts. make reparation.”
- Their binding force comes from the voluntary decision of sovereign states to
SOURCES | JUDICIAL DECISIONS
obligate themselves to a mode of behavior.
- While treaties are generally binding only on the parties, the number of the
General rule: Article 38 of the Statute directs the Court to apply judicial decisions
contracting parties and the generality of the acceptance of the rules created by
as subsidiary means for the determination of the rules of law.
the treaty can have the effect of creating a universal law in much the same way
Exception: This is made subject to Article 59 which says that “the decisions of the
that general practice suffices to create customary law.
court have no binding force except between the parties and in
- Must be observed in good faith. (pacta sunt servanda)
respect of that particular case.”
TREATIES v CUSTOMS
Thus, such decisions do not constitute stare decisis.
- Whether or not treaties override custom depends on the intention of the parties. If
the treaty is intended to be declaratory of customary law, it may be seen as
SOURCES | TEACHINGS OF HIGHLY QUALIFIED WRITERS AND “PUBLICISTS”
evidence of customary law.
Extent to which they are referred to depends on the tradition of the court or of
- Normally, treaties and custom can be complementary.
individual judges.
- If a treaty comes later than a particular custom, as between the parties to the
a) In common law jurisdictions, there is reluctance to use them, more so in the US
treaty, the treaty should prevail. A treaty manifests a deliberate choice of the
than in Britain.
parties and the principle of pacta sunt servanda should be followed.
b) In civil law jurisdictions, there is more ready reference to writers.
c) The ICJ is generally reluctant to refer to writers but they are often taken into
In the Wimbledon Case (PCIJ 1923), although the PCIJ recognized that customary
consideration.
international law prohibited belligerents from ferrying armaments through a neutral
state, the Court said that Article 380 of the Treaty of Versailles opened the Kiel Canal to
PUBLICISTS - are institutions which write on international law. Examples are (a)
passage “to the vessels of commerce and of war of all nations at peace with Germany
International Law Commission, an organ of the U.N; (b) International Law Association, a
on terms of entire equality.” The Court considers that the terms of Article 380 are
multinational body; (c) (Revised) Restatement of Foreign Relations Law of the United
categorical and give rise to no doubt. It follows that the canal has ceased to be an
States; (d) annual publication of the Hague Academy of International Law.
internal and national navigable waterway, the use of which by the vessels of states
other than the riparian state is left entirely to the discretion of that state, and that it has
become an international waterway intended to provide under treaty guarantee easier 1
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For
access to the Baltic for the benefit of all nations of the world.
the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and
recognized by the international community of States as a whole as a norm from which no derogation is permitted and
which can be modified only by a subsequent norm of general international law having the same character.
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NOTE: These institutions are generally government sponsored; hence, they bear within
themselves a potential for national bias.
SOURCES | EQUITY
- Equity, when accepted, is an instrument whereby conventional or customary law
may be supplemented or modified in order to achieve justice. It has both a
procedural and substantive aspect.
- Procedurally, it means a mandate given to a judge to exercise discretion in order
to achieve a determination that is more equitable and fair.
Different Kinds of Equity
i. intra legem (within the law) - the law is adapted to the facts of the case.
ii. praeter legem (beyond the law) - it is used to fill the gaps within the law.
iii. contra legem (against the law) - a refusal to apply the law which is seen
as unjust.
SOURCES | OTHER SUPPLEMENTARY EVIDENCE
a. UN RESOLUTIONS - Declarations of legal principles and Resolutions by the
United Nations are generally considered merely recommendatory. But if they
are supported by all the states, they are an expression of opinio juris communis.
b. SOFT LAW - Non-treaty agreements. They are international agreements not
concluded as treaties and therefore not covered by the Vienna Convention
on the Law of Treaties.
- Other sources of soft law are administrative rules which guide the practice of states
in relation to international organizations. These are mostly administrative
procedures that are carried out with varying degrees of consistency and uniformity
that may eventually ripen into customary law or become formalized later on in
treaties.
CHAPTER 3
THE LAW OF TREATIES
- Treaties can assume various names. They can be conventions, pacts, covenants,
charters, protocols, concordat, modus vivendi, etc.
- They represent the most deliberate form of commitment through which
governments cooperate with one another.
- The law on treaties is found in the 1969 Vienna Convention on the Law of Treaties. It
governs treaties between states. It entered into force in January 1980. While the
document is not retroactive in effect, it does contain customary law precepts
antedating 1969
Definition.
The Vienna Convention defines a treaty as “an international agreement
concluded between States in written form and governed by international law, whether
embodied in a single instrument or in two or more related instruments and whatever its
particular designation.”
Forms.
Generally written but no particular form is prescribed.
In the case of Qatar v Bahrain, the exchange of notes between the two heads of state
was considered an international agreement. Further, it held that in order to ascertain
whether an agreement of that kind has been concluded, “the Court must have regard
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
above all to its actual terms and to the particular circumstances in which it was drawn
up. Accordingly, and contrary to the contentions of Bahrain, the Minutes are not a
simple record of a meeting, similar to those drawn up within the framework of the
Tripartite Committee; they do not merely give an account of discussions and summarize
points of agreement and disagreement. They enumerate the commitments to which
the Parties have consented. They thus create rights and obligations in international law
for the Parties. They constitute an international agreement.
- However, only written agreements that are new come under the provisions of the
Vienna Convention.
It is well-recognized that declarations made by way of unilateral acts concerning legal
or factual situations, may have the effect of creating legal obligations. Declarations of
this kind may be, and often are, very specific. When it is the intention of the State
making the declaration that it should become bound according to its terms, that
intention confers on the declaration the character of a legal undertaking, the State
being thenceforth legally required to follow a course of conduct consistent with the
declaration. An undertaking of this kind, if given publicly, and with intent to be bound,
even though not made within the context of international negotiations, is binding. In
announcing that the 1974 series of atmospheric tests would be the last, the French
Government conveyed to the world at large ... its intention to terminate these tests. It
was bound to assume that other States might take note of these statements and rely on
their being effective. The validity of these statements and their legal consequences
must be considered within the general framework of the security of international
intercourse, and the confidence and trust which are so essential in the relations among
States. [Australia v France, New Zealand v France]
FUNCTIONS OF TREATIES
a. MULTILATERAL – open to all states of the world. They create norms which are
the basis for a general rule of law. They are either codification treaties or “law-
making treaties” or they may have the character of both.
b. COLLABORATIVE MECHANISM – universal in scope. (e.g., regulation of
allocation of radio frequencies or regional fishing agreements). They operate
through the organs of the different states.
c. BILATERAL – largest category of treaties. Many of these are in the nature of
contractual agreements which create shared expectations such as trade
agreements of various forms. They are sometimes called “contract treaties.”
NOTE: While treaties are generally binding only on the parties, the number of the
contracting parties and the generality of the acceptance of specific rules created by
the treaty can have the effect of creating a universal law in much the same way that
general practice suffices to create customary law.
THE MAKING OF TREATIES
1st NEGOTIATION
2nd AUTHENTICATION OF TEXT
a. Signature; 3rd ACCESSION TO TREATY
b. Exchange of Instruments 4th RESERVATIONS
c. Ratification 5th ENTRY INTO FORCE
d. Approval 6th APPLICATION OF TREATIES
e. Accession
f. Other means if so agreed
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approval or accession, or by any other means if so agreed. [Art. 11. Means of expressing
(1st) NEGOTIATION – originate from the foreign ministries. Negotiators must have the consent to be bound by a treaty]
power to negotiate. An act relating to the conclusion of a treaty by one who has no
proper authorization has no legal effect unless confirmed by his state. Q:
Q: When is a person deemed a representative of a state? A:
A:
(a) If he produces appropriate full powers; or
(b) it appears from the practice of the States concerned or from other
circumstances that their intention was to consider that person as representing
the State for such purposes and to dispense with full powers.
Q: Is manifestation of full power necessary to be considered as representing the state?
Answer: No, even without full powers, by virtue of their functions, the following are Q:
considered representing the state: A:
(a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the
purpose of performing all acts relating to the conclusion of a treaty;
(b) heads of diplomatic missions, for the purpose of adopting the text of a treaty
between the accrediting State and the State to which they are accredited;
(c) representatives accredited by States to an international conference or to an
international organization or one of its organs, for the purpose of adopting the Q:
text of a treaty in that conference, organization or organ.
A:
(2nd) AUTHENTICATION OF TEXT - Negotiations conclude with the signing of the
document. The signatures serve as authentication of the document.
Q: How does the adoption of the text of a treaty takes place?
A:
(a) The adoption of the text of a treaty takes place by the consent of all the States Q:
participating in its drawing up except as provided in paragraph 2.
(b) The adoption of the text of a treaty at an international conference takes place A:
by the vote of two-thirds of the States present and voting, unless by the same
majority they shall decide to apply a different rule. [Art. 9. Adoption of the text]
Q: How to establish the text of a treaty as authentic and definitive?
A:
(a) by such procedure as may be provided for in the text or agreed upon by the
States participating in its drawing up; or
(b) failing such procedure, by the signature, signature ad referendum or initialing
by the representatives of those States of the text of the treaty or of the Final
Act of a conference incorporating the text.
PUBLIC INTERNATIONAL LAW | derF Notes
When is consent of a State to be bound by a treaty is expressed by the
signature of its representative?
(a) the treaty provides that signature shall have that effect;
(b) it is otherwise established that the negotiating States were agreed that
signature should have that effect; or
(c) the intention of the State to give that effect to the signature appears from the
full powers of its representative or was expressed during the negotiation. [Art.
12. Consent to be bound by a treaty expressed by signature]
What constitutes a signature?
(a) the initialing of a text constitutes a signature of the treaty when it is established
that the negotiating States so agreed;
(b) the signature and referendum of a treaty by a representative, if confirmed by
his State, constitutes a full signature of the treaty.
When consent of States to be bound by a treaty constituted by exchange of
instrument expressed?
(a) the instruments provide that their exchange shall have that effect; or
(b) it is otherwise established that those States were agreed that the exchange of
instruments should have that effect, xxx [Art. 13 Consent to be bound by a
treaty expressed by an exchange of instruments constituting a treaty]
When is consent to be bound by a treaty expressed by ratification,
acceptance or approval?
1. By ratification:
d) the treaty provides for such consent to be expressed by means of ratification;
e) it is otherwise established that the negotiating States were agreed that
ratification should be required;
f) the representative of the State has signed the treaty subject to ratification; or
g) the intention of the State to sign the treaty subject to ratification appears from
the full powers of its representative or was expressed during the negotiation.
2. By acceptance or approval under conditions similar to those which apply to
ratification.

The authentication of a treaty makes the text authoritative and definitive. It is
necessary so that the states will know definitively the contents of the text and avoid any
misunderstanding as to the terms. [Art.10. Authentication]
CONSENT TO BE BOUND - Once the document has been signed, there are stages which
follow which culminate in making the document binding. The most important step is the
consent to be bound.
Q: What are the various ways by which consent to be bound is expressed?
A: The consent of a State to be bound by a treaty may be expressed by
signature, exchange of instruments constituting a treaty, ratification, acceptance,
NOTE: The manner of ratification differs from state to state. In the Philippines, it is
governed by Article VII, Section 21 of the Constitution. But between signature and
ratification a state is required by Article 18(a) not to engage in acts which can defeat
the purpose of the treaty.
Q: What is the next step after the state ratified the instrument?
A: Ratification is next followed by either exchange of ratification, in bilateral
treaties, or, in multilateral treaties, deposit of ratification.

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Q: When do instruments of ratification, acceptance, approval or accession
establish the consent of a State to be bound by a treaty?
A:
General rule:
(a) their exchange between the contracting States;
(b) their deposit with the depositary; or
(c) their notification to the contracting States or to the depositary, if so agreed.
Exception:
Unless the treaty otherwise provides. [Art. 16. Exchange or deposit of
instruments of ratification, acceptance, approval or accession]
Q: What is the effect if the State consents to be bound by a part of a treaty and
choice of different provisions?
A:
1. Without prejudice to Articles 19 to 23, the consent of a State to be bound by
part of a treaty is effective only if the treaty so permits or the other contracting
States so agree.
2. The consent of a State to be bound by a treaty which permits a choice
between differing provisions is effective only if it is made clear to which of the
provisions the consent relates.
(3th) ACCESSION TO A TREATY - States which did not participate in the initial negotiation
may also express their consent to be bound by “accession.”
Q: How does the State expressed its consent to be bound by a treaty by
accession?
A:
(a) When the treaty provides that such consent may be expressed by that State
by means of accession;
(b) it is otherwise established that the negotiating States were agreed that such
consent may be expressed by that State by means of accession; or
(c) all the parties have subsequently agreed that such consent may be expressed
by that State by means of accession
(4th) RESERVATIONS - unilateral statement, however phrased or named, made by a
State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it
purports to exclude or to modify the legal effect of certain provisions of the treaty in
their application to that State. In this regard, therefore, treaties are different from
statutes. Statutes must necessarily apply to all.
RULES ON RESERVATIONS [Art. 19-23]
Q: How is reservation formulated?
A: A State may, when signing, ratifying, accepting, approving or acceding to a
treaty, formulate a reservation unless:
(a) the reservation is prohibited by the treaty;
(b) the treaty provides that only specified reservations, which do not include the
reservation in question, may be made; or
(c) in cases not falling under sub-paragraphs (a) and (b), the reservation is
incompatible with the object and purpose of the treaty. [Art. 19]
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
Q: What are the rules in acceptance and objection to reservations?
A:
1. A reservation expressly authorized by a treaty does not require any subsequent
acceptance by the other contracting States unless the treaty so provides.
2. When it appears from the limited number of the negotiating States and the
object and purpose of a treaty that the application of the treaty in its entirety
between all the parties is an essential condition of the consent of each one to
be bound by the treaty, a reservation requires acceptance by all the parties.
3. When a treaty is a constituent instrument of an international organization and
unless it otherwise provides, a reservation requires the acceptance of the
competent organ of that organization.
4. In cases not falling under the preceding paragraphs and unless the treaty
otherwise provides:
a. acceptance by another contracting State of a reservation
constitutes the reserving State a party to the treaty in relation to that
other State if or when the treaty is in force for those States;
b. an objection by another contracting State to a reservation does not
preclude the entry into force of the treaty as between the objecting
and reserving States unless a contrary intention is definitely expressed
by the objecting State;
c. an act expressing a State’s consent to be bound by the treaty and
containing a reservation is effective as soon as at least one other
contracting State has accepted the reservation.
5. For the purposes of paragraphs 2 and 4 and unless the treaty otherwise
provides, a reservation is considered to have been accepted by a State if it
shall have raised no objection to the reservation by the end of a period of
twelve months after it was notified of the reservation or by the date on which it
expressed its consent to be bound by the treaty, whichever is later. [Art. 20.]
Q: What are the legal effects of reservations and of objections to reservations?
A:
1. A reservation established with regard to another party in accordance with
Articles 19,20 and 23:
a. modifies for the reserving State in its relations with that other party the
provisions of the treaty to which the reservation relates to the extent
of the reservation; and
b. modifies those provisions to the same extent for that other party in its
relations with the reserving State.
2. The reservation does not modify the provisions of the treaty for the other parties
to the treaty inter se.
3. When a State objecting to a reservation has not opposed the entry into force
of the treaty between itself and the reserving State, the provisions to which the
reservation relates do not apply as between the two States to the extent of the
reservation. [Art. 21]
Q: How does acceptance and objections to reservation withdrawn?
A:
1. Unless the treaty otherwise provides, a reservation may be withdrawn at any
time and the consent of a State which has accepted the reservation is not
required for its withdrawal.
2. Unless the treaty otherwise provides, an objection to a reservation may be
withdrawn at any time.
3. Unless the treaty otherwise provides, or it is otherwise agreed:
6|P a g e

a. the withdrawal of a reservation becomes operative in relation to
another contracting State only when notice of it has been received
by that State;
b. the withdrawal of an objection to a reservation becomes operative
only when notice of it has been received by the State which
formulated the reservation.
Q: What are the procedures regarding reservations?
A:
1. A reservation, an express acceptance of a reservation and an objection to a
reservation must be formulated in writing and communicated to the
contracting States and other States entitled to become parties to the treaty.
2. If formulated when signing the treaty subject to ratification, acceptance or
approval, a reservation must be formally confirmed by the reserving State
when expressing its consent to be bound by the treaty. In such a case the
reservation shall be considered as having been made on the date of its
confirmation.
3. An express acceptance of, or an objection to, a reservation made previously
to confirmation of the reservation does not itself require confirmation.
4. The withdrawal of a reservation or of an objection to a reservation must be
formulated in writing.
NOTE: In bilateral treaties, a reservation by one party means a rejection of the treaty
and necessitates re-negotiation. Reservations, therefore, are meant only for multilateral
treaties.
Q: Must a reservation be consented to by all parties for it to be effective?
A: A state which has made and maintained a reservation which has been
objected to by one or more parties to the Convention but not by others, can be
regarded as a party to the Convention if the reservation is compatible with the object
and purpose of the Convention. Compatibility could be decided by states individually
since “if a party to the Convention objects to a reservation which it considers
incompatible with the object and purpose of the Convention, it can consider that the
reserving state is not a party to the Convention.” Under this view, it is possible for
different legal relationships to arise among parties to the same treaty.
Example of Reservation
The Philippines and the 1982 Convention on the Law of the Sea In this connection, it
should be noted that the provision on “archipelagic waters” found in the 1982
Convention on the Law of the Sea conflicts with the Philippine claim in Article I of the
Constitution that the waters connecting the islands, irrespective of their breadth and
dimension, are “internal waters.” The Philippine government is clearly aware of these
possible conflicts. Hence, upon its ratification of the Convention on the Law of the Sea
on August 5,1984, it added the following reservation:
1. The signing of the Convention by the Government of the Republic of the
Philippines shall not in any manner impair or prejudice the sovereign rights of
the Republic of the Philippines under and arising from the Constitution of the
Philippines;
2. Such signing shall not in any manner affect the sovereign rights of the Republic
of the Philippines as successor to the United States of America, under and
arising out of the Treaty of Paris between Spain and the United States of
America of December 10, 1988, and the Treaty of Washington between the
United States of America and Great Britain of January 2,1930;
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
3. Such signing shall not diminish or in any manner affect the rights and
obligations of the Contracting Parties under the Mutual Defense Treaty
between the Philippines and the United States of America of August 30,1951,
and its related interpretative instruments; nor those under any pertinent
bilateral or multilateral treaty or agreement to which the Philippines is a party;
4. The provisions of the Convention on archipelagic passage through sea lanes
do not nullify or impair the sovereignty of the Philippines as an archipelagic
State over the sea lanes and do not deprive it of authority to enact legislation
to protect its sovereignty, independence, and security;
5. The concept of archipelagic waters is similar to the concept of internal waters
under the Constitution of the Philippines, and removes straits connecting these
waters with the economic zone or high sea from the rights of foreign vessels to
transit passage for international navigation.
(5th) ENTRY INTO FORCE OF TREATIES - Treaties enter into force on the date agreed upon
by the parties. Where no date is indicated, the treaty enters into force once consent has
been given. Multilateral treaties generally contain a provision which says how many
states have to accept the treaty before it can come into force.
Q: What are the rules in entry into force?
A:
i. A treaty enters into force in such manner and upon such date as it may
provide or as the negotiating States may agree.
ii. Failing any such provision or agreement, a treaty enters into force as soon as
consent to be bound by the treaty has been established for all the negotiating
States.
iii. When the consent of a State to be bound by a treaty is established on a date
after the treaty has come into force, the treaty enters into force for that State
on that date, unless the treaty otherwise provides.
iv. The provisions of a treaty regulating the authentication of its text, the
establishment of the consent of States to be bound by the treaty, the manner
or date of its entry into force, reservations, the functions of the depositary and
other matters arising necessarily before the entry into force of the treaty apply
from the time of the adoption of its text.
Q: What are the rules governing provisional application of treaty?
A:
1. A treaty or a part of a treaty is applied provisionally pending its entry into force
if:
a. the treaty itself so provides; or
b. the negotiating States have in some other manner so agreed.
2. Unless the treaty otherwise provides or the negotiating States have otherwise
agreed, the provisional application of a treaty or a part of a treaty with
respect to a State shall be terminated if that State notifies the other States
between which the treaty is being applied provisionally of its intention not to
become a party to the treaty.
RULES ON THE APPLICATION OF TREATIES
- The first fundamental rule on treaties is pacta sunt servanda. Article 26 of the
Convention says that “every treaty in force is binding upon the parties to it and
must be performed by them in good faith.”
- A second fundamental rule, Article 46, is that a “party may not invoke the
provisions of its internal law as justification for its failure to perform a treaty.”
7|P a g e

- As to the territorial scope of its applicability, Article 29 says: “Unless a different
intention appears from the treaty or is otherwise established, a treaty is binding
upon each party in respect of its entire territory.”
RULES ON THE INTERPRETATION OF TREATIES [Art. 31]
1. A treaty shall be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context and in the light
of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in
addition to the text, including its preamble and annexes:
a. any agreement relating to the treaty which was made between all
the parties in connection with the conclusion of the treaty;
b. any instrument which was made by one or more parties in
connection with the conclusion of the treaty and accepted by the
other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
a. any subsequent agreement between the parties regarding the
interpretation of the treaty or the application of its provisions;
b. any subsequent practice in the application of the treaty which
establishes the agreement of the parties regarding its interpretation;
c. any relevant rules of international law applicable in the relations
between the parties.
4. A special meaning shall be given to a term if it is established that the parties so
intended.
Article 31 combines various approaches to treaty interpretation.
Art. 31(1) follows the “objective” approach, that is, interpretation according
to the ordinary meaning of the words.
Art. 31(2) “teleological” approach, that is, interpretation according to the
telos or purpose of the treaty.
Art. 31(3) and (4) “subjective” approach which honors special meaning given by the
parties.
INVALIDITY OF TREATIES
Q: What are the grounds for the invalidation of treaty?
A: (1) error of fact; (2) fraud; (3) corruption or duress.
Q: What constitutes an ERROR?
A:
General rule: A State may invoke an error in a treaty as invalidating its consent to be
bound by the treaty if the error relates to a fact or situation which was
assumed by that State to exist at the time when the treaty was concluded
and formed an essential basis of its consent to be bound by the treaty.
Exception: If the State in question contributed by its own conduct to the error or if the
circumstances were such as to put that State on notice of a possible error.
An error relating only to the wording of the text of a treaty does not affect
its validity; Article 79 then applies.
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
Q: What is the effect of employment of fraud in treaty making?
A: If a State has been induced to conclude a treaty by the fraudulent
conduct of another negotiating State, the State may invoke the fraud as
invalidating its consent to be bound by the treaty.
Q: What is the effect of corruption in treaty making?
A: If the expression of a State’s consent to be bound by a treaty has been
procured through the corruption of its representative direcdy or indirectly
by another negotiating State, the State may invoke such corruption as
invalidating its consent to be bound by the treaty.
TYPES OF COERCION IN TREATY MAKING
Article 51. Coercion of a representative of a State
The expression of a State’s consent to be bound by a treaty which has been procured
by the coercion of its representative through acts or threats directed against him shall
be without any legal effect.
Article 52. Coercion of a State by the threat or use of force
A treaty is void if its conclusion has been procured by the threat or use of force in
violation of the principles of international law embodied in the Charter of the United
Nations.
Q: What are the other grounds for the invalidation of treaty?
A: Treaties conflicting with a peremptory norm of general international law
(jus cogens). A treaty is void if, at the time of its conclusion, it conflicts with
a peremptory norm of general international law. For the purposes of the
present Convention, a peremptory norm of general international law is a
norm accepted and recognized by the international community of States
as a whole as a norm from which no derogation is permitted and which
can be modified only by a subsequent norm of general international law
having the same character.
Q: What are the rules considered to be jus cogens ?
A:
a. a treaty contemplating an unlawful use of force contrary to the provisions of
the Charter;
b. a treaty contemplating the performance of any other act criminal under
international law;
c. a treaty contemplating or conniving towards the commission of acts such as
trade in slaves, piracy, or genocide.
Q: When does the State lose the right to assert the invalidity of a treaty?
A:
a. it shall have expressly agreed that the treaty is valid or remains in force or
continues in operation, as the case may be; or
b. it must by reason of its conduct be considered as having acquiesced in the
validity of the treaty or in its maintenance in force or in operation, as the case
may be.
PROVISIONS OF INTERNAL LAW REGARDING COMPETENCE TO CONCLUDE TREATIES [Art.
46]
General rule: A State may not invoke the fact that its consent to be bound by a
treaty has been expressed in violation of a provision of its internal law
8|P a g e

regarding competence to conclude treaties as invalidating its
consent.
Exceptions: Unless that violation was manifest and concerned a rule of its internal
law of fundamental importance.
A violation is manifest if it would be objectively evident to any State
conducting itself in the matter in accordance with normal practice
and in good faith.
SPECIFIC RESTRICTIONS ON AUTHORITY TO EXPRESS THE CONSENT OF A STATE [Art. 47]
General rule: If the authority of a representative to express the consent of a State
to be bound by a particular treaty has been made subject to a
specific restriction, his omission to observe that restriction may not be
invoked as invalidating the consent expressed by him.
Exception: Unless the restriction was notified to the other negotiating States prior
to his expressing such consent.
AMENDMENT AND MODIFICATION OF TREATIES
AMENDMENT MODIFICATION
formal revision done with the
participation, at least in its initial stage, by involves only some of the parties.
all the parties to the treaty.
- The general rule on amendments, found in Article 39, is that a “treaty may be
amended by agreement of the parties.” The procedure that is followed is the
same as that for the formation of treaties.
RULES IN AMENDING MULTILATERAL TREATIES
1. Unless the treaty otherwise provides, the amendment of multilateral treaties
shall be governed by the following paragraphs.
2. Any proposal to amend a multilateral treaty as between all the parties must be
notified to all the contracting States, each one of which shall have the right to
take part in:
a. the decision as to the action to be taken in regard to such proposal;
b. the negotiation and conclusion of any agreement for the
amendment of the treaty.
3. Every State entitled to become a party to the treaty shall also be entitled to
become a party to the treaty as amended.
4. The amending agreement does not bind any State already a party to the
treaty which does not become a party to the amending agreement; Article
30, paragraph 4(b), applies in relation to such State.
5. Any State which becomes a party to the treaty after the entry into force of the
amending agreement shall, failing an expression of a different intention by that
State:
a. be considered as a party to the treaty as amended; and
b. be considered as a party to the unamended treaty in relation to any
party to the treaty not bound by the amending agreement.
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
AGREEMENTS TO MODIFY MULTILATERAL TREATIES BETWEEN CERTAIN PARTIES ONLY
1. Two or more of the parties to a multilateral treaty may conclude an
agreement to modify the treaty as between themselves alone if:
a. the possibility of such a modification is provided for by the treaty; or
b. the modification in question is not prohibited by the treaty and:
i. does not affect the enjoyment by the other parties of their
rights under the treaty or the performance of their
obligations;
ii. does not relate to a provision, derogation from which is
incompatible with the effective execution of the object and
purpose of the treaty as a whole.
2. Unless in a case falling under paragraph 1(a) the treaty otherwise provides, the
parties in question shall notify the other parties of their intention to conclude
the agreement and of the modification to the treaty for which it provides.
TERMINATION OF TREATIES
- A treaty may be terminated or suspended according to the terms of the treaty
or with the consent of the parties.
- A treaty with a definite period may also expire. It may also end when the
purpose for the treaty has already been achieved.
NOTE: A mere change of government or severance of diplomatic relations does not
terminate or suspend a treaty.
MODES OF TERMINATING A TREATY
1. Material breach
2. Rebus sic stantibus (impossibility of performance and change of fundamental
conditions)
EFFECTS OF MATERIAL BREACH IN THE TREATY [Art. 60]
1. A material breach of a bilateral treaty by one of the parties entitles the other
to invoke the breach as a ground for terminating the treaty or suspending its
operation in whole or in part.
2. A material breach of a multilateral treaty by one of the parties entitles:
a. the other parties by unanimous agreement to suspend the operation
of the treaty in whole or in part or to terminate it either:
i. in the relations between themselves and the defaulting
State, or
ii. as between all the parties;
b. a party specially affected by the breach to invoke it as a ground for
suspending the operation of the treaty in whole or in part in the
relations between itself and the defaulting State;
c. any party other than the defaulting State to invoke the breach as a
ground for suspending the operation of the treaty in whole or in part
with respect to itself if the treaty is of such a character that a material
breach of its provisions by one party radically changes the position of
every party with respect to the further performance of its obligations
under the treaty.
Q: What constitute material breach?
A:
(a) a repudiation of the treaty not sanctioned by the present Convention; or
(b) the violation of a provision essential to the accomplishment of the object or
purpose of the treaty.
9|P a g e

NOTE: The foregoing are without prejudice to any provision in the treaty applicable in
the event of a breach.
Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human
person contained in treaties of a humanitarian character, in particular to provisions
prohibiting any form of reprisals against persons protected by such treaties.
Q: What is the rule in case of supervening impossibility of performance?
A:
General rule:
- A party may invoke the impossibility of performing a treaty as a ground for
terminating or withdrawing from it if the impossibility results from the permanent
disappearance or destruction of an object indispensable for the execution of
the treaty.
- If the impossibility is temporary, it may be invoked only as a ground for
suspending the operation of the treaty.
Exception:
- Impossibility of performance may not be invoked by a party as a ground for
terminating, withdrawing from or suspending the operation of a treaty if the
impossibility is the result of a breach by that party either of an obligation under
the treaty or of any other international obligation owed to any other party to
the treaty.
Q: What is fundamental change in circumstances (rebus sic stantibus)?
A: A fundamental change of circumstances which has occurred with regard to
those existing at the time of the conclusion of a treaty, and which was not
foreseen by the parties.
Q: Is rebus sic stantibus a ground for terminating a treaty?
A:
General rule: It cannot be invoked if
(a) if the treaty establishes a boundary; or
(b) if the fundamental change is the result of a breach by the party invoking it
either of an obligation under the treaty or of any other international obligation
owed to any other party to the treaty.
Exceptions: It may be invoked as a ground to terminate the treaty when
(a) the existence of those circumstances constituted an essential basis of the
consent of the parties to be bound by the treaty; and
(b) the effect of the change is radically to transform the extent of obligations still
to be performed under the treaty.
NOTE: If, under the foregoing paragraphs, a party may invoke a fundamental
change of circumstances as a ground for terminating or withdrawing from a treaty it
may also invoke the change as a ground for suspending the operation of the treaty.
In addition to this, the Court emphasized that the changes “must have
increased the burden of the obligations to be executed to the extent of rendering
performance something essentially different from the original intention.”
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
PROCEDURE FOR THE TERMINATION OF TREATIES [Art. 65]
1st - A party which, under the provisions of the present Convention, invokes either a
defect in its consent to be bound by a treaty or a ground for impeaching the validity of
a treaty, terminating it, withdrawing from it or suspending its operation, must notify the
other parties of its claim. The notification shall indicate the measure proposed to be
taken with respect to the treaty and the reasons therefor.
2nd - If, after the expiry of a period which, except in cases of special urgency, shall not
be less than three months after the receipt of the notification, no party has raised any
objection, the party making the notification may carry out in the manner provided in
Article 67 the measure which it has proposed.
3rd - If, however, objection has been raised by any other party, the parties shall seek a
solution through the means indicated in Article 33 of the Charter of the United Nations.
Nothing in the foregoing paragraphs shall affect the rights or obligations of the parties
under any provisions in force binding the parties with regard to the settlement of
disputes
Without prejudice to Article 45, the fact that a State has not previously made the
notification prescribed in paragraph 1 shall not prevent it from making such notification
in answer to another party claiming performance of the treaty or alleging its violation.
PROCEDURES FOR JUDICIAL SETTLEMENT, ARBITRATION AND CONCILIATION [Art. 66]
- If, under paragraph 3 of Article 65, no solution has been reached within a
period of 12 months following the date on which the objection was raised, the
following procedures shall be followed:
a. any one of the parties to a dispute concerning the application or the
interpretation of Article 53 or 64 may, by a written application, submit it to the
International Court of Justice for a decision unless the parties by common
consent agree to submit the dispute to arbitration;
b. any one of the parties to a dispute concerning the application or the
interpretation of any of the other articles in Part V of the present Convention
may set in motion the procedure specified in the Annex to the Convention by
submitting a request to that effect to the Secretary-General of the United
Nations.
INSTRUMENTS FOR DECLARING INVALID, TERMINATING, WITHDRAWING FROM OR
SUSPENDING THE OPERATION OF A TREATY [ART. 67]
a. Notification must be in writing.
b. Any act declaring invalid, terminating, withdrawing from or suspending the
operation of a treaty pursuant to the provisions of the treaty or of paragraphs 2
or 3 of Article 65 shall be carried out through an instrument communicated to
the other parties.
NOTE: If the instrument is not signed by the Head of State, Head of Government or
Minister for Foreign Affairs, the representative of the State communicating it may be
called upon to produce full powers.
A notification or instrument provided for in Article 65 or 67 may be revoked at
any time before it takes effect.
Q: To whom the authority to terminate the treaty belongs?
A: The authority to terminate should also belong to the one who has the authority
to enter into the treaty.
10 | P a g e

Q: Can the President [of the Philippines] unilaterally terminate a treaty?
A:
In the Philippines, however, as in the United States, the authority to conclude
treaties is shared between the Senate and the President. No decision was reached
except to say that the matter was not yet ripe for judicial review: “The Judicial Branch
should not decide issues affecting the allocation of power between the President and
Congress until the political branches reach a constitutional impasse. Otherwise, we
would encourage small groups or even individual Members of Congress to seek judicial
resolution of issues before the normal political process has the opportunity to resolve the
conflict.”
SUCCESSION TO TREATIES
Q: What will happen if one state ceases to exist and is succeeded by another on
the same territory? Is the new state bound by the commitments made by its
predecessor?
A:
General rule: The Convention follows the “clean slate” rule. Article 16 says: “A
newly independent State is not bound to maintain in force, or to
become a party to, any treaty by reason only of the fact that at the
date of the succession of States the treaty was in force in respect of
the territory to which the succession of States relates.” But a new state
may agree to be bound by the treaties made by its predecessor.
Exception: The “clean slate" rule, however, does not apply to treaties affecting
boundary regimes.
Exception to exception: Does not apply to treaty obligations of the predecessor State
providing for the establishment of foreign military bases on the
territory to which the succession of States relates.
CHAPTER 4
INTERNATIONAL LAW AND MUNICIPAL LAW
Q: When there is conflict between international law and domestic law, which is
to prevail?
A:
- There are varying theories which try to answer the question.
a. DUALIST OR PLURALIST THEORY - holds that international law and municipal law
are essentially different from each other. They differ as to source. For the
dualists, when international law and municipal law conflict, municipal law must
prevail. The dualists are positivists with a strong emphasis on state sovereignty.
b. MONISTIC THEORY OR MONISM (two theories) - Under this theory, international
law and domestic law belong to only one system of law.
 One theory holds that municipal law subsumes and is superior to
international law;
 Second theory, supported by Kelsen, holds that international law is
superior to domestic law.
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
- At present the prevailing practice accepts dualism at least in its postulate that
there are two legal systems. There are prevailing provisions in treaties which
recognize dualism.
In Exchange of Greek and Turkish Population Case,' the Court adverted to “a principle
which is self-evident according to which a state which has contracted a valid
international obligation is bound to make in its legislation such modifications as may be
necessary to ensure the fulfillment of the obligations undertaken.”
- But even in dualism, the two systems are not completely separated. Thus,
Article 38 recognizes the common teachings of domestic law as part of
international law.
If the Court were to decide the case in disregard of the relevant institutions of municipal
law, it would without justification, invite serious legal difficulties. It would lose touch with
reality.... It is to rules generally accepted by municipal systems,... and not to the
municipal law of a particular State, that international law refers. [Barcelona Traction
Case]
For a situation, moreover, where the court must decide a dispute which turns not upon
international law but upon domestic law, as in the Brazilian Loans Case, the Court stated
what it must do: “Once the Court has arrived at the conclusion that it is necessary to
apply the municipal law of a particular country, there seems to be no doubt that it must
seek to apply it as it would be applied in that country....”
- International law, UNLESS it is made part of the domestic system, has no role in
the settlement of domestic conflicts.
Q: How does international law become part of domestic law for “dualists”?
A:
a. DOCTRINE OF TRANSFORMATION - Treaties do not become part of the law of a
state unless it is consented to by the state. For international law to become
part of domestic law it must be expressly and specifically transformed into
domestic law through the appropriate constitutional machinery such as an act
of Congress or Parliament.
b. DOCTRINE OF INCORPORATION - the law of nations, wherever any question
arises which is properly the object of its jurisdiction, is here adopted in its full
extent by the common law, and it is held to be part of the law of the land.
[Blackstone Commentary]
Q: What does Philippine law follow?
A:
1. In the case of treaties as international law - they become part of the law of the
land when concurred in by the Senate in accordance with Article VII, Section
21 of the Constitution which sets down the mechanism for transforming a
treaty into binding municipal law.
2. With regard to customary law and treaties which have become customary law
- the Philippines “adopts the generally accepted principles of international law
as part of the law of the land,” the Constitution manifests its adherence to the
“dualist” theory and at the same time adopts the incorporation theory and
thereby makes international law part of domestic law.
11 | P a g e

Q: What is the effect if the treaty is declared unconstitutional under the municipal law?
A:
The treaty can be ignored domestically but only at the risk of international
repercussions before an international court.
Q: What elements of international law becomes part of Philippine law by incorporation
through Article II, Section 2?
A:
Since treaties become a part of Philippine law only by ratification, the principle
of incorporation applies only to customary law and to treaties which have become part
of customary law.
Q: What is the effect when a treaty is declared unconstitutional by the Supreme Court?
A:
A treaty that has been declared unconstitutional does not lose its character as
international law. Under the “dualist” theory, which the Constitution accepts, the
unconstitutionality of a treaty is purely a domestic matter. As Article 27 of the Vienna
Convention on the Law of Treaties says, “A party may not invoke the provisions of its
internal law as justification for its failure to perform a treaty.”
In Tanada v Angara, disputed in this case is the GATT treaty. The petitioners in the case
argued that the “letter, spirit and intent” of the Constitution mandating “economic
nationalism” were violated by the “parity provisions” and “national treatment clauses”
scattered in various parts not only of the WTO Agreement and its annexes but also in the
Ministerial Decisions and Declarations and in the Understanding on Commitments in
Financial Services. The petitioners had relied on the nationalistic provisions of Articles II
and XII of the Constitution. In reply, the Court said:
By its very title, Article II of the Constitution is a “declaration of principles and state
policies.” These principles in Article II are not intended to be self-executing principles
ready for enforcement through the courts. They are used by the judiciary as aids or as
guides in the exercise of its power of judicial review, and by the legislature in its
enactment of laws. The principles and state policies enumerated in Article II and some
sections of Article XII are not “self-executing provisions, the disregard of which can give
rise to a cause of action in the courts. They do not embody judicially enforceable
constitutional rights but guidelines for legislation.”
All told, while the Constitution indeed mandates a bias in favor of Filipino goods,
services, labor and enterprises, at the same time, it recognizes the need for business
exchange with the rest of the world on the bases of equality and reciprocity and limits
protection of Filipino enterprises only against foreign competition and trade practices
that are unfair. In other words, the Constitution did not intend to pursue an isolationist
policy. It did not shut out foreign investments, goods and services in the development of
the Philippine economy. While the Constitution does not encourage the unlimited entry
of foreign goods, services and investments into the country, it does not prohibit them
either. In fact, it allows an exchange on the basis of equality and reciprocity, frowning
only on foreign competition that is unfair.
The position of the Court in Tafiada is a retreat from the earlier case of Manila Prince
Hotel v. Government Service Insurance System where the Court said that the command
of Article XII, Section 10 was mandatory and self-executory. Section 10 says: “In the
grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.” In awarding a contract
to a Filipino corporation which had a lower bid than that of a Malaysian, the Court said
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
that the command of Section 12 “is a mandatory, positive command which is complete
in itself and which needs no further guidelines or implementing laws or rules for its
enforcement. From its very words, the provision does not require any legislation to put it
in operation. It is per se judicially enforceable.”
The Court, however, attempted to justify its new position by saying:
It is true that in the recent case of Manila Prince Hotel vs. Government Service Insurance
System, et al„ this Court held that “Sec. 10, second par., Art. XII of the 1987 Constitution is
a mandatory, positive command which is complete in itself and which needs no further
guidelines or implementing laws or rules for its enforcement. From its very words, the
provision does not require any legislation to put it in operation. It is per se judicially
enforceable.” However, as the constitutional provision itself states, it is enforceable only
in regard to “the grants of rights, privileges and concessions covering national economy
and patrimony” and not to every aspect of trade and commerce. It refers to exceptions
rather than the rule. The issue here is not whether this paragraph of Sec. 10 of Art. XII is
self-executing or not. Rather, the issue is whether, as a rule, there are enough balancing
provisions in the Constitution to allow the Senate to ratify the Philippine concurrence in
the WTO Agreement. And the Court hold that there are.
Q: What if there is a conflict between the international agreement and local legislation?
A:
The rule followed in the United States is that treaties and statutes are equal in
rank and that, since neither is superior to the other, the rule followed is that as between
an earlier treaty and a later law, the later one prevails.
The same rule applies in the Philippines. But again, the rule applies only in the
domestic sphere. The treaty, even if contrary to later statute, remains as international
law; while an international tribunal would not have the power to reverse the nullification
of the treaty in domestic law, it can take appropriate action in favor of an aggrieved
state.
CHAPTER 5
SUBJECTS OF INTERNATIONAL LAW: STATES
Subjects of international law
- Entities endowed with rights and obligations in the international order and
possessing the capacity to take certain kinds of action on the international
plane. In other words, they are those who have international personality.
Objects of international law
- Those who indirectly have rights under or are beneficiaries of international law
through subjects of international law.
NOTE: Not all subjects of international law enjoy the same rights and obligations.
States remain the predominant actors.
STATES: COMMENCEMENT OF THEIR EXISTENCE
- There are various situations when the question of statehood arises.
Examples:
a. when a portion of a territory has seceded;
b. when there is foreign control over the affairs of an entity which claims
to be a state; or
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c. or when states have formed a union but continue to retain some
autonomy; and
d. when individual members of a federation claim statehood.
QUALIFICATION TO DEEM STATE AS A ‘PERSON OF INTERNATIONAL LAW’
a. a permanent population
b. a defined territory
c. government
d. the capacity to enter into relations with other States
STATE
- it is a community of persons more or less numerous, permanently occupying a
definite portion of territory, independent of external control, and possessing an
organized government to which the great body of inhabitants render habitual
obedience.
ELEMENTS OF STATE
1. PEOPLE or POPULATION - simply means a community of persons sufficient in
number and capable of maintaining the permanent existence of the
community and held together by a common bond of law. It is of no legal
consequence if they possess diverse racial, cultural, or economic interests. Nor
is a minimum population required.
2. TERRITORY - A definite territory over which an entity exercises permanent
sovereignty.
NOTE: An entity may satisfy the territorial requirement for statehood even if its
boundaries have not been finally settled, if one or more of its boundaries are disputed,
or if some of its territory is claimed by another state. An entity does not necessarily cease
to be a state even if all its territory has been occupied by a foreign power or if it has
otherwise lost control of its territory temporarily.
3. GOVERNMENT - institution or aggregate of institutions by which an
independent society makes and carries out those rules of action which are
necessary to enable men to live in a social state, or which are imposed upon
the people forming that society by those who possess the power or authority of
prescribing them.
NOTE: International law does not specify what form a government should have.
Moreover, for purposes of international law, it is the national government that has legal
personality and it is the national government that is internationally responsible for the
actions of other agencies and instrumentalities of the state. Finally, a temporary
absence of government, for instance during an occupation by a foreign power, does
not terminate the existence of a state.
4. SOVEREIGNTY - independence from outside control. The capacity to enter into
relations with other States. This latter element of sovereignty, however, is
dependent on recognition.
5. SELF – DETERMINATION - Sovereignty as an element of a state is related to but
not identical with the broader concept of the right of self-determination. All
peoples have the right of self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and
cultural development.
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
LEVELS OF CLAIM TO SELF-DETERMINATION
1. Establishment of new states - the claim by a group within an established state
to break away and form a new entity
2. Does not involve the establishment of a new state
a. claims to be free from external coercion, or
b. the claim to overthrow effective rulers and establish a new government,
that is, the assertion of the right of revolution; or
c. the claim of people within an entity to be given autonomy.
NOTE: International law has not recognized a right of secession from a legitimately
existing state.
RECOGNITION OF STATES
- The act of acknowledging the capacity of an entity to exercise rights
belonging to statehood.
Q: Can an entity claim to be a state before it is recognized by other states?
A: There are two views on this.
1. DECLARATORY THEORY - recognition is merely “declaratory” of the existence of
the state and that its being a state depends upon its possession of the required
elements and not upon recognition. A recognizing state merely accepts an
already existing situation. The weight of authority favors the “declaratory view.”
2. CONSTITUTIVE THEORY - recognition “constitutes” a state, that is, it is what
makes a state a state and confers legal personality on the entity. In effect, this
merely emphasizes the point that states are under no obligation to enter into
bilateral relations. But then states may decide to recognize an entity as a state
even if it does not have all the elements of a state found in the Montevideo
Convention.
RECOGNITION OF GOVERNMENT
- The act of acknowledging the capacity of an entity to exercise powers of
government of a state.
- If a change in government in an existing state comes about through ordinary
constitutional procedure, recognition by others comes as a matter of course.
- The problem is acute when a new government within a state comes into
existence through extra-constitutional means.
In the case of Tinoco Arbitration, where the Government of Costa Rica, under President
Alfredo Gonzalez, was overthrown by Federico Tenneco. Tenneco’s government
concluded certain contracts with British Corporations. Tenneco retired and left the
country. After Tenneco’s retirement the old constitution was restored and a Law of
Nullities was passed annulling the contracts concluded during the Tenneco regime.
Great Britain made claims on the basis of the injuries done to its nationals caused by the
annulments. There were two preliminary questions: 1. What was the status of the Tinoco
regime in international law. 2. Was Great Britain estopped from pursuing its claims
because it never recognized the Tinoco government either de jure or de facto.
It was ruled that the Tinoco government is a de facto one. For the two years in power, its
government served its role in a peaceful environment. Thus, there is an actual sovereign
government. Changes in the government or the international policy of a state do not as
a rule affect its position in international law. States may change between forms of
government without ceasing to be that state in the eyes of international law, or in terms
of its international obligations.
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“The principle of the continuity of states” = “state is bound by engagements entered
into by governments that have ceased to exist; the restored government is generally
liable for the acts of the usurper.”
- A foreign government, although not recognized by the political arm of the
United States Government, may nevertheless have de facto existence which is
juridically cognizable. The acts of such a de facto government may affect
private rights and obligations arising either as a result of activity in, or with
persons or corporations within, the territory controlled by such de facto
government. This is traditional law.
CONSEQUENCES OF RECOGNITION OR NON-RECOGNITION
- A government, once recognized, gains increased prestige and stability. The
doors of funding agencies are opened, loans are facilitated, and access to
foreign courts and immunity from suit is gained. Military and financial
assistance also come within reach.
- The absence of formal recognition, on the other hand, bars an entity from all
these benefits or, at least, access to them may be suspended.
Q: Does admission of a government to the United Nations mean recognition by all
members?
A: No. The recognition is only to the extent of the activities of the organization.
Q: When is recognition terminated?
A: Recognition of a regime is terminated when another regime is recognized. For
as long as a state continues to meet the qualifications of statehood, its status as a state
cannot be “derecognized.”
NOTE: When the United States recognized the government of China in 1979, it
derecognized the government of Taiwan, but continued with commercial, cultural, and
other non-governmental relationships.
SUCCESSION OF STATES
The issues on succession can be succession to territory, to treaties, to property
and contracts.
WITH RESPECT TO TERRITORY
- When a state succeeds another state with respect to particular territory, the
capacities, rights and duties of the predecessor state with respect to that
territory terminate and are assumed by the successor state.
I. State Property - subject to agreement between predecessor and
successor states, title passes as follows:
i. where part of the territory of a state becomes territory of another
state, property of the predecessor state located in that territory
passes to the successor state;
ii. where a state is absorbed by another state, property of the absorbed
state, wherever located, passes to the absorbing state;
iii. where part of a state becomes a separate state, property of the
predecessor state located in the territory of the new state passes to
the new state.
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
II. Public Debts - subject again to agreement between the states
concerned, responsibility for the public debt of the predecessor, and
rights and obligations under its contracts, remain with the predecessor
state, except as follows:
i. where part of the territory of a state becomes territory of
another state, local public debt, and the rights and
obligations of the predecessor state under contracts
relating to that territory, are transferred to the successor
state;
ii. where a state is absorbed by another state, the public debt,
and rights and obligations under contracts of the absorbed
state, past to the absorbing state;
iii. where part of a state becomes a separate state, local
public debt, and rights and obligations of the predecessor
state under contracts relating to the territory of the new
state, pass to the new state.
III. Treaties
i. When part of the territory of a state becomes territory of
another state, the international agreements of the
predecessor state cease to have effect in respect of the
territory and the international agreements of the successor
state come into force there. This reflects the “moving treaty
rule” or “moving boundaries rule.”
Example: If X has a treaty with Y, and part of Y is transferred to Z, X may seek
relief from treaty obligation under “rebus sic stantibus.”
ii. When a state is absorbed by another state, the international
agreements of the absorbed state are terminated and the
international agreements of the absorbing state become
applicable to the territory of the absorbed state. Third states
may appeal to rebus sic stantibus.
iii. When a part of a state becomes a new state, the new state
does not succeed to the international agreements to which
the predecessor state was party, unless, expressly or by
implication, it accepts such agreements and the other party
or parties thereto agree or acquiesce. This applies the
“clean slate theory.”
iv. Pre-existing boundary and other territorial agreements
continue to be binding notwithstanding. This is the uti
possidetis rule.
FUNDAMENTAL RIGHTS OF THE STATES
1. INDEPENDENCE - the capacity of a state to provide for its own well-being and
development free from the domination of other states, providing it does not
impair or violate their legitimate rights. As a right, independence means the
right to exercise within its portion of the globe, to the exclusion of others, the
functions of a state.
Flowing from independence are certain other rights such as jurisdiction over its
territory and permanent population, the right to self defense and the right of legation.
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Independence also involves the duty not to interfere in the internal affairs of other
states.
NOTE: Restrictions upon a state’s liberty arising either from customary law or from
treaties do not deprive a state of independence.
2. EQUALITY - equality of legal rights irrespective of the size or power of the state.
One state, one vote.
3. PEACEFUL CO-EXISTENCE - mutual respect for each other’s territorial integrity
and sovereignty, mutual non-aggression, non-interference in each other’s
affairs and the principle of equality.
OTHER INCOMPLETE SUBJECTS
1. PROTECTORATES - They are dependent states which have control over their
internal affairs but whose external affairs are controlled by another state. They
were sometimes referred to as autonomous states, vassal states, semi
sovereign or dependent states.
2. FEDERAL STATES - This is a union of previously autonomous entities. Various
arrangements are possible. One arrangement may involve placing full
authority in a central organ while another arrangement might lodge authority
in the individual entities to the detriment of the central organ. The central
organ will have personality in international law; but the extent of international
personality of the component entities can be a problem.
3. MANDATED AND TRUST TERRITORIES - territories placed by the League of Nations
under one or other of the victorious allies of World War I. The mandate system
was replaced by the trusteeship system after World War II.
4. TAIWAN - seems to be a non-state territory which de jure is part of China. But it
is too affluent and strategically located to be over looked by international
actors. It is interesting that when Taiwan sought accession to the GATT treaty it
did not do so as a state but as part of a “customs territory.”
5. SOVEREIGN ORDER OF MALTA - There was a time when the order had
sovereignty over Malta. This has since been lost. But the Italian Court of
Cassation in 1935 recognized its international personality. Currently, it has
diplomatic relations with over forty states.
6. THE HOLY SEE AND THE VATICAN CITY - the Lateran Treaty was signed with Italy
which recognized the state of the Vatican City and “the sovereignty of the
Holy See in the field of international relations as an attribute that pertains to the
very nature of the Holy See, in conformity with its traditions and the demands
of its mission in the world.” It has no permanent population.
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
CHAPTER 6
OTHER SUBJECTS OF INTERNATIONAL LAW
- States are the dominant subjects of international law. But there are others:
international organizations, insurgents, liberation movements, and, in a more
limited way, individuals.
1. INTERNATIONAL ORGANIZATIONS
Establishment, international personality, immunity.
- an organization that is set up by treaty among two or more states.
- It is different from non-governmental organizations (NGO) which are set up by
private persons.
- Although international organizations have personality in international law, their
powers and privileges are by no means like those of states. Their powers and
privileges are limited by the constituent instrument that created them.
- International organizations are subjects of international law which do not,
unlike States, possess a general competence.
- Governed by the “principle of speciality," that is to say, they are invested by
the States which create them with powers, the limits of which are a function of
the common interests whose promotion those States entrust to them.
- The powers conferred on international organizations are normally the subject
of an express statement in their constituent instruments.
- It is generally accepted that international organizations can exercise such
powers, known as “implied” powers.
Immunities
- Because they enjoy international personality, they can also be given the
immunities and privileges of international persons.
- Their immunities, however, have for basis not sovereignty, as it is for states, but
the need for the effective exercise of their functions.
In the case of World Health Organization v Aquino, the Court ruled that it is a
recognized principle of international law and under our system of separation of powers
that diplomatic immunity is essentially a political question and courts should refuse to
look beyond a determination by the executive branch of the government, and where
the plea of diplomatic immunity is recognized and affirmed by the executive branch of
the government. It is then the duty of the courts to accept the claim of immunity upon
appropriate suggestion by the principal law officer of the government.
A curious case however of Kapisanan ng mga Manggagawa v IRRI, although IRRI is not
created by a treaty and is therefore not an international organization, as it was only a
creation of a Memorandum of Agreement between two private organizations, a
Presidential Decree was passed granting it the status, prerogatives, privileges and
immunities of an international organization. Thus, the Court ruled that the exercise of
jurisdiction by the Department of Labor in these instances would defeat the very
purpose of immunity, which is to shield the affairs of international organizations, in
accordance with international practice, from political pressure or control by the host
country to the prejudice a member States of the organization, and to ensure the
unhampered performance of their functions.
The end result of the protective blanket that has been wrapped around IRRI is the efforts
of employees to seek redress for violations of labor rights have been repeatedly
rebuffed by the Supreme Court. For all practical purposes, they are denied the
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protection given by the Constitution in Article XIII, Section 3 guaranteeing full protection
for labor.
Yet, in the case of Jeffrey Liang (Hue Feng) v. People involving a criminal complaint
against Jeffrey Liang, an ADB official, for grave oral defamation. Appeal was made to
the political character of Jeffrey Liang as an agent of international organization. But the
Court ruled that the immunity granted to officers and staff of the ADB was not absolute;
but limited to acts performed in an official capacity and could not cover the
commission of a crime such as slander or oral defamation in the name of official duty.
Worth mentioning also is the case of DFA v National Labor Relations Board where the
issue was whether the National Labor Relations Commission could assume jurisdiction
over a case of illegal dismissal against Asian Development Bank (ADB). In upholding the
immunity of the ADB, the Court appealed to the provisions of the ADB’s Charter:
Article 50(1) of the Charter provides:
The Bank shall enjoy immunity from every form of legal process, except in cases arising
out of or in connection with the exercise of its powers to borrow money, to guarantee
obligations, or to buy and sell or underwrite the sale of securities.
Similar import of this stipulation was found in its Headquarters Agreement.
The above stipulations of both the Charter and Headquarters Agreement should be
able, nay well enough, to establish that, except in the specified cases of borrowing and
guarantee operations, as well as the purchase, sale and underwriting of securities, the
ADB enjoys immunity from legal process of every form.
THE UNITED NATIONS: STRUCTURES AND POWERS
- The principal international organization.
- It came into being on October 24, 1945, when the UN Charter2 came into
force.
- In the hierarchy of international organizations, the UN occupies a position of
preeminence. Article 103 says that “in the event of a conflict between the
obligations of the Members of the United Nations under the present Charter
and their obligations under any other international agreement, their
obligations under the present Charter shall prevail.” This clause is known as the
“international constitutional supremacy clause.”
PRINCIPAL ORGANS OF UN
A. GENERAL ASSEMBLY - It has plenary powers in the sense that it “may discuss any
question or any matters within the scope of the ... Charter.”
- The GA distinguishes between “important questions” and “other questions.”
IMPORTANT QUESTIONS OTHER QUESTIONS
Decided by a two-thirds majority of the Requires only a majority
2 (Article 5).
The UN, however, is enjoined against intervening in matters which are “essentially within the domestic jurisdiction”
of any state. Article 2(7) says: Nothing contained in the present Charter shall authorize the United Nations to
intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to
submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of
enforcement measures under Chapter VII.
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
members voting and present.
B. SECURITY COUNCIL - has “primary responsibility for the maintenance of
international peace and security.”
- There are 15 member states, five of them permanent (China, France, Russia [in
place of the former USSR], United Kingdom and the US). The others are elected
for two year terms in accordance with equitable geographic representation.
- The Security Council distinguishes between “procedural matters” and “all other
matters.”
- Matters that are not procedural require nine affirmative votes, including the
“concurring votes of the permanent members.” But since the Charter does not
specify what matters are procedural, the Council practice is that a decision on
whether a matter is procedural or not also requires the concurrence of the
permanent members. Hence, a double veto by the permanent members is
possible. And an abstention is considered a veto.
C. ECOSOC - has 54 member states elected for three year terms. It has a large
number of subsidiary organs, among them the UN Commission on Human
Rights and the Commission on the Status of Women.
D. TRUSTEESHIP COUNCIL - supervises non-self-governing territories. Its jurisdiction
has already become very limited.
- Palau was the last entity to be under the Council. The Council suspended
operations after Palau became independent on 1 October 1994.
E. SECRETARIAT - comprise a Secretary General and such staff as the
Organization may require.
- Secretary General is elected to a five year term by the General Assembly upon
the recommendation of the Security Council, subject to veto power.
- The Secretary General is the chief administrator of the organization and has
the power to “bring to the attention of the Security Council any matter which
in his opinion may threaten the maintenance of international peace and
security.
F. THE INTERNATIONAL COURTS OF JUSTICE - the principal judicial organ of the UN.
G. OTHER AGENCIES - Aside from the main organs of the UN, there are also
specialized agencies. Some of these are: the United Nations Educational,
Scientific and Cultural Organization (UNESCO). The International Civil Aviation
Organization (ICAO), the World Health Organization (WHO), the Food and
Agricultural Organization (FAO), the World Bank and the International
Monetary Fund (IMF).
H. REGIONAL ORGANIZATIONS – They are neither organs nor subsidiary organs of
the UN. They are autonomous international organizations having an
institutional affiliation with the UN by concluding agreements with the UN.
- They are international institutions created by international agreements for the
purpose of dealing with regional problems in general or with specific matters
be they economic, military or political.
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a. ASEAN (Association of Southeast Asian Nations)
- regional organization of South East Asian nations.
- established on 8 August 1967 in Bangkok, Thailand, with the signing of the
Bangkok Declaration by the five original Member Countries namely Indonesia,
Malaysia, Philippines, Singapore and Thailand.
- The Bangkok Declaration united the ASEAN Member Countries in a joint effort
to promote economic cooperation and the welfare of the people in the
region. The Bangkok Declaration set out guidelines for ASEAN’s activities and
defined the aims of the organization.
- The ASEAN Declaration states that the aims and purposes of the Association
are: (1) to accelerate economic growth, social progress and cultured
development in the region and (2) to promote regional peace and stability
through abiding respect for justice and the rule of law in the relationship
among countries in the region and adherence to the principles of the United
Nations Charter.
THREE PILLARS OF ASEAN
a. ASEAN Security Community
b. ASEAN Economic Community
c. ASEAN Socio-Cultural Community
2. INSURGENTS.
 Protocol II
- The first and only international agreement exclusively regulating the conduct
of parties in a non-international armed conflict.
Q: What is a non-international armed conflict?
A: They are armed conflicts which take place in the territory of a High
Contracting Party between its armed forces and dissident armed forces or other
organized armed groups which, under responsible command, exercise such control
over a part of its territory as to enable them to carry out sustained and concerted
military operations and to implement this Protocol.
Exception: “Protocol shall not apply to situations of internal disturbances and
tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar
nature, as not being armed conflicts.” This is true even if the armed forces of the territory
may have been called upon to suppress the disorder.
REQUIREMENTS SET DOWN BY PROTOCOL II FOR ‘MATERIAL FIELD OF APPLICATION’
a. It must take place in the territory of a High Contracting Party between its
armed forces and dissident armed forces or other organized armed groups;
b. the armed dissidents must be under responsible command;
c. they must exercise such control over a part of its territory as to enable them to
carry out sustained and concerted military operations and to implement this
Protocol.
 Common Article 3
Traditionally, international law on armed conflict does not apply to internal
conflicts such as civil wars or rebellions. In 1949, however, it was decided that minimum
humanitarian protection should also be promulgated to cover internal conflict. For this
reason, each of the four Geneva Conventions contains a common Article 3 which says:
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
Art. 3. In the case of armed conflict not of an international character occurring
in the territory of one of the High Contracting Parties, each Party to the conflict shall be
bound to apply, as a minimum, the following provisions:
Persons taking no active part in the hostilities, including members of armed
forces who have laid down their arms and those placed hors de combat by sickness,
wounds, detention, or any other cause, shall in all circumstances be treated humanely,
without any adverse distinction founded on race, color, religion or faith, sex, birth or
wealth, or any other similar criteria.
Q: What are the prohibited acts under the Common Article 3?
A:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel
treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading
treatment;
(d) the passing of sentences and the carrying out of executions without previous
judgment pronounced by a regularly constituted court, affording all the
judicial guarantees which are recognized as indispensable by civilized
peoples.
Q: What shall be done to the wounded and sick?
A: The wounded and sick shall be collected and cared for. An impartial
humanitarian body, such as the International Committee of the Red Cross, may offer its
services to the Parties to the conflict.
The Protocol thus sets a very high threshold for applicability, higher than the threshold for
the applicability of Protocol I which does not require control over territory. For this
reason, in the conflict between the Philippine government and the National Democratic
Front, the Philippine government has been able to maintain consistently that the NDF
and its New People’s Army have not crossed this threshold and that therefore what
applies to them is Common Article 3 and not Protocol II. This means that they do not
have the status of subject of international law. The same can be said of the MNLF and
MILF in Mindanao.
Insurgent groups which satisfy the material field of application of Protocol II may be
regarded as “para-state entities possessing definite if limited form of international
personality.” State practice indicates two specific attributes of such “personality.” First,
they are recognized as having belligerent status against the de jure government. Other
states are therefore required to maintain neutrality regarding them. Second, they are
seen as having treaty making capacity.
Q: What is the effect of application of Common Article 3 in the conflict?
A: The application does not convert the conflict into an international one and
therefore does not preclude the possibility that any participant in the conflict may be
prosecuted for treason. What this means is that, although rebels have the protection of
Common Article 3, they do not thereby gain the status of subjects of international law
unless they satisfy the “material field of application” of Protocol II.
3. NATIONAL LIBERATION MOVEMENTS
- are organized groups fighting in behalf of a whole people for freedom from
colonial powers.
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- According to the First Protocol of the 1977 Geneva Convention, they are
“peoples fighting against colonial domination and alien occupation and
against racist regimes in the exercise of their right of self-determination, as
enshrined in the Charter of the United Nations.”
CHARACTERISTICS OF NLM
(a) First, they can be based within the territory which they are seeking to liberate
or they might find a base in a friendly country. Control of territory, therefore, is
not a necessary factor. Their legitimacy rather comes from their goal: to free
themselves from colonial domination, or a racist regime or foreign occupation.
Briefly, their goal is self-determination.
NOTE: Although control over territory and people is not essential to their legitimacy,
the ultimate goal of controlling a definite territory is necessary for them to be recognized
as international subjects. Besides, they must have an organization capable of coming
into contact with other international organizations. With these characteristics, they can
claim international status.
4. INDIVIDUALS
- In international law they were objects or at best “beneficiaries” of international
law.
- Among the obligations of individuals are those arising from the regulation of
armed conflicts. Violation of these rules can place individuals under criminal
responsibility. There are also rules on international crimes to which individuals
are subject such as crimes against humanity, genocide, aggression, and
terrorism.
- When individual rights are violated, however, individuals still have to rely on the
enforcement power of states. But some treaties have provided for the right of
individuals to petition international bodies alleging that a contracting state has
violated some of their human rights.
- As far as their international obligations are concerned, they are associated
with all the other members of the international community; in contrast, they do
not possess rights in relation to all members of that community.
- To differentiate the position of individuals from that of States, it can be
maintained that while States have international legal personality proper,
individuals have a limited locus standi in international law.
- Individual have a limited array of rights and obligations: on this score, one can
speak of a limited legal capacity (NOTE: In this respect they can be put on the
same footing as other non-State international subjects: insurgents, international
organizations, and national liberation movements).
CHAPTER 7
TERRITORY: LAND, AIR, OUTER SPACE
[LAND]
Q: Define territory.
A: Territory as an element of a state means an area over which a state has
effective control.
Q: Is exact boundaries necessary to constitute a territory?
A: The exact boundaries might be uncertain, but there should be a definitive
core over which sovereignty is exercised.
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
Q: What comprises territory?
A: Territory includes land, maritime areas, airspace and outer space.
Q: What does acquisition of territory means?
A: It means acquisition of sovereignty over territory.
MODES OF ACQUISITION OF SOVEREIGNTY OVER TERRITORY
a. DISCOVERY AND OCCUPATION
Q: What is occupation?
A: Occupation is the acquisition of terra nullius (nobody’s land), that is, territory
which prior to occupation belonged to no state or which may have been abandoned
by a prior occupant.
Q: What constitutes abandonment?
A: There is abandonment when the occupant leaves the territory with the
intention of not returning.
Western Sahara had been colonized by the Spanish for many years. Morocco claimed
the north half, while Mauritania the southern part. They are both arguing that portions of
the disputed area formed part of their pre-colonial territories. A Resolution was
promulgated on 1960 granting independence to the colonies. Morocco and
Mauritania is now seeking to have the former colony re-integrated to their respective
national territories. Morocco claims ‘legal ties’ with Western Sahara as they have an
allegiance with some tribes living in the Western Sahara.
It was ruled that at the time of Western Sahara’s colonization, it was not terra nullius. The
presence of organized tribe within the territory negates such. Although there are some
ties between the nomadic tribes and Morocco, it is not enough to be considered
political allegiance. The same also holds true with Mauritania.
In the case of such territories the acquisition of sovereignty was not generally
considered as effected unilaterally through “occupation” of terra nullius by original title
but through agreements concluded with local rulers
Q: Does occupation also denotes acquisition of sovereignty through agreements?
A: On occasion, it is true, the word “occupation” was used in a non-technical
sense denoting simply acquisition of sovereignty; but that did not signify that the
acquisition of sovereignty through such agreements with authorities of the country was
regarded as an “occupation” of a “terra nullius” in the proper sense of these terms. On
the contrary, such agreements with local rulers, whether or not considered as an actual
“cession” of the territory, were regarded as derivative roots of title, and not original titles
obtained by occupation of terra nullius. [Western Sahara Case]
Palmas (known as Miangas) is an island located halfway between the islands of
Mindanao, Philippines and Nanusa in Netherlands. American General, Leonard Nood
visited Palmas and discovered that Netherlands also claimed sovereignty over it. They
agreed to submit the dispute to arbitration.
The US, as successor to the rights of Spain over the Philippines, bases its title in the first
place on discovery. As, according to the same argument, nothing has occurred of a
nature, in international law, to cause the acquired title to disappear, this latter title was
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 PUBLIC INTERNATIONAL LAW | derF Notes
intact at the moment when, by the Treaty of December 10th, 1898, Spain ceded the Q: What is sovereignty with regards to relations between states?
Philippines to the United States. In these circumstances, it is, in the American view, A: It signifies independence. Independence in regard to a portion of the globe is
unnecessary to establish facts showing the actual display of sovereignty precisely over the right to exercise therein, to the exclusion of any other State, the functions of a State.
the Island of Palmas (or Miangas). The United States Government finally maintains that Q: What is territorial sovereignty?
Palmas (or Miangas) forms a geographical part of the Philippine group and in virtue of A: Territorial sovereignty is, in general, a situation recognized and delimited in
the principle of contiguity belongs to the Power having the sovereignty over the space, either by so-called natural frontiers as recognized by international law or by
Philippines. outward signs of delimitation that are undisputed, or else by legal engagements
entered into between interested neighbors, such as frontier conventions, or by acts of
The Netherlands based their claim on acts of direct and indirect display of sovereignty. recognition of States within fixed boundaries.
According to the Netherlands Government, on the other hand, the fact of discovery by
Spain is not proved, nor yet any other form of acquisition, and even if Spain had at any Q: What is the corollary duty of a state claiming sovereignty?
moment had a title, such title had been lost. The principle of contiguity is contested. The A: Territorial sovereignty, as has already been said, involves the exclusive right to
Netherlands Government's main argument endeavors to show that the Netherlands, display the activities of a State. This right has as corollary a duty: the obligation to
represented for this purpose in the first period of colonization by the East India protect within the territory the rights of other States, in particular their right to integrity
Company, have possessed and exercised rights of sovereignty from 1677, or probably and inviolability in peace and in war, together with the rights which each State may
from a date prior even to 1648, to the present day. This sovereignty arose out of claim for its nationals in foreign territory. Without manifesting its territorial sovereignty in a
conventions entered into with native princes of the Island of Sangi (the main island of manner corresponding to circumstances, the State cannot fulfil this duty. Territorial
the Talautse (Sangi Isles), establishing the suzerainty of the Netherlands over the sovereignty cannot limit itself to its negative side, i.e. to excluding the activities of other
territories of these princes, including Palmas (or Miangas). The state of affairs thus set up States; for it serves to divide between nations the space upon which human activities
is claimed to be validated by international treaties. The facts alleged in support of the are employed, in order to assure them at all points the minimum of protection of which
Netherlands arguments are, in the United States Government's view, not proved, and, international law is the guardian.
even if they were proved, they would not create a title of sovereignty, or would not
concern the Island of Palmas. Q: What happens if there is a dispute?
A: If a dispute arises as to the sovereignty over a portion of territory, it is customary
Arbitration ruled in favor the Netherlands. to examine which of the States claiming sovereignty possesses a title— cession
conquest, occupation, etc.—superior to that which the other State might possibly bring
It held that inchoate title cannot prevail over a definite title founded on continuous and forward against it.
peaceful display of sovereignty. Occupation, to constitute a claim to territorial However, if the contestation is based on the fact that the other Party has
sovereignty, must be effective, that is, offer certain guarantees to other states and their actually displayed sovereignty, it cannot be sufficient to establish the title by which
nationals. It seems therefore incompatible with this rule of positive law that there should territorial sovereignty was validly acquired at a certain moment; it must also be shown
be regions which are neither under the effective sovereignty of a state, nor without a that the territorial sovereignty has continued to exist and did exist at the moment which
master, but which are reserved for the exclusive influence of one state, in virtue solely of for the decision of the dispute must be considered as critical.
a title of acquisition which is no longer recognized by existing law, even if such a title
ever conferred territorial sovereignty. For these reasons, discovery alone, without any Q: What are the elements if a claim of sovereignty is founded merely upon
subsequent act, cannot at the present time suffice to prove sovereignty over the Island continued display of authority?
of Palmas (or Miangas); and in so far as there is no sovereignty, the question of an A: Each of which must be shown to exist:
abandonment properly speaking of sovereignty by one state in order that the a. the intention and will to act as sovereign;
sovereignty of another may take its place does not arise. b. some actual exercise or display of such authority.
c. the extent to which the sovereignty is also claimed by some other Power.
The acts of indirect or direct display of Netherlands sovereignty at Palmas (or Miangas),
especially in the 18th and early 19th centuries are not numerous, and there are b. PRESCRIPTION
considerable gaps in the evidence of continuous display. But apart from the Also recognized as a mode of acquiring sovereignty over territory. Like
consideration that the manifestations of sovereignty over a small and distant island, occupation.
inhabited only by natives, cannot be expected to be frequent, it is not necessary that PRESCRIPTION OCCUPATION
the display of sovereignty should go back to a very far distant period. It may suffice that - Requires effective control. - Same.
such display existed in 1898, and had already existed as continuous and peaceful - Acquisition of territory belonging - Object is terra nullius.
before that date long enough to enable any Power who might have considered herself to another state.
as possessing sovereignty over the island, or having a claim to sovereignty, to have, - No fixed period is prescribed for - Requirements for occupation
according to local conditions, a reasonable possibility for ascertaining the existence of prescription. need only be complied.
a state of things contrary to her real or alleged rights. [The Island of Palmas Arbitration] - Required length of effective - Shorter.
control is longer.
ELEMENTS ELEMENTS
Q: What is inchoate title? (i) Possession must be (i) Intention to occupy.
A: It exists as a claim to establish sovereignty by effective occupation. peaceful Such intention must be

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 PUBLIC INTERNATIONAL LAW | derF Notes
(ii) Possession must be formally expressed and - The present regime on air navigation has developed from the Chicago
public permanent. Convention on International Civil Aviation (1944) which entered into force in
(iii) Possession must be for a (ii) Occupation should be 1974. The Chicago Convention created the International Civil Aviation
long period of time. peaceful, continuous. Organization (ICAO), an agency of the United Nations, and prescribed the
NOTE: Prescription might be negated by a demonstrated lack of acquiescence by rules for international civil aviation.
the prior occupant.
Q: How is airspace territory determined?
c. CESSATION A: the territory of a State shall be deemed to be the land areas and territorial
- Cession, or acquisition of territory through treaty, is another mode. waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of
- US acquired the Philippines through the Treaty of Paris. such State.
- Sovereignty over Hong Kong is a more recent example of cession.
Q: What is covered by ICAO?
NOTE: It should also be noted, however, that a treaty of cession which is imposed by A: It is applicable only to civil aircraft, and shall not be applicable to state
a conqueror is invalid. Thus there may be a situation where what prevails is merely a de aircraft.
facto regime.
Q: What comprises State aircraft?
d. CONQUEST A: Aircraft used in (a) military; (b) customs; and (c) police services.
- Conquest was in earlier days the taking possession of a territory through armed
force. Q: What are the rules laid down under ICAO?
- For acquisition of conquered territory, it was necessary that the war had A:
ended either by treaty or by indication that all resistance had been a. No state aircraft of a contracting State shall fly over the territory of another
abandoned. State or land thereon without authorization by special agreement or otherwise,
- The conqueror must have had the intention of acquiring the territory and not and in accordance with the terms thereof.
just of occupying it temporarily. b. The contracting States undertake, when issuing regulations for their state
- Today conquest as a mode of acquisition is proscribed by international law. aircraft, that they will have due regard for the safety of navigation of civil
The 1970 Declaration of Principles of International Law Concerning Friendly aircraft.
Relations and Cooperation among States has this to say: “The territory of a c. Each contracting State agrees not to use civil aviation for any purpose
State shall not be the object of acquisition by another State resulting from the inconsistent with the aims of this Convention.
threat or use of force. No territorial acquisition resulting from the use or threat
of force shall be recognized as legal.” Q: What are the classifications of flight over territory?
A: Flight over territory is classified into “non-scheduled” and “scheduled” fights.”
e. ACCRETION OR AVULSION
ACCRETION AVULSION Q: What are the rights of non-scheduled flight?
Gradual increase of territory by the action Sudden change resulting for instance from A: Each contracting State agrees that all aircraft of the other contracting States,
of nature. the action of a volcano. being aircraft not engaged in scheduled international air services shall have the right:

Q: Is contiguity a mode of acquisition?
A: Because of the closeness of the Spratlys to Philippine territory, it has been
argued that the area belongs to the Philippines by contiguity. The Las Palmas case is
argument against contiguity as a basis for sovereignty when it says: “it is impossible to
show a rule of positive international law to the effect that islands situated outside the
territorial waters should belong to a state from the fact that its territory forms part of the
terra firma.”
f. INTERTEMPORAL LAW
Laws on acquisition of territory have changed. Note for instance the changes
on the legality of wars of conquest. Which laws then are applicable to a controversy?
The generally accepted view is that the rules in effect at the time of the acquisition
should be applied.
[AIRSPACE]
a. subject to the observance of the terms of the Convention, to make flights into
or in transit nonstop across its territory; and
b. to make stops for non-traffic purposes without the necessity of obtaining prior
permission, and subject to the right of the State flown over to require landing;
c. Each contracting State nevertheless reserves the right, for reasons of safety of
flight, to require aircraft desiring to proceed over regions which are
inaccessible or without adequate air navigation facilities to follow prescribed
routes, or to obtain special permission for such flights.
d. such aircraft, if engaged in the carriage of passengers, cargo, or mail for
remuneration or hire on other than scheduled international air services, subject
to Article 7 if ICAO, shall also have the privilege of taking on or discharging
passengers, cargo, or mail, subject to the right of any State where such
embarkation or discharge takes place to impose such regulations, conditions
or limitations as it may consider desirable.

- Each state has exclusive jurisdiction over the air space above its territory.
Therefore, consent for transit must be obtained from the subjacent nation.

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Q What are the rules governing non-scheduled air services?
A:
General rule: No scheduled international air service may be operated over or into
the territory of a contracting State.
Exception: With the special permission or other authorization of that State, and in
accordance with the terms of such permission or authorization.
Q: What is cabotage?
A: Each contracting State shall have the right to refuse permission to the aircraft
of other contracting States to take on in its territory passengers, mail and cargo
carried for remuneration or hire and destined for another point within its
territory. Each contracting State undertakes not to enter into any
arrangements which specifically grant any such privilege on an exclusive basis
to any other State or an airline of any other State, and not to obtain any such
exclusive privilege from any other State. [Art. 7, ICAO]
PUBLIC INTERNATIONAL LAW | derF Notes
b. In carrying on activities in outer space and on celestial bodies, the astronauts
of one State Party shall render all possible assistance to the astronauts of other
States Parties.
c. States Parties to the Treaty shall immediately inform the other States Parties to
the Treaty or the Secretary-General of the United Nations of any phenomena
they discover in outer space, including the Moon and other celestial bodies,
which could constitute a danger to the life or health of astronauts.
CHAPTER 8
TERRITORY: LAW OF THE SEA

[OUTER SPACE]

Q: What does usque ad coelom mean?

A: It refers to a rule in law that the owner of land owns the air space above it
indefinitely upward.

Q: May the moon be subject of appropriation?

A: Outer space, including the moon and other celestial bodies, is not subject to
national appropriation by claim of sovereignty, by means of use or
occupation, or by any other means. The exploration and use of outer space,
including the moon and other celestial bodies, shall be carried out for the
benefit and in the interests of all countries, irrespective of their degree of
economic or scientific development, and shall be the province of all mankind.

Q: What are the limitations imposed on the use of moon, and other celestial
bodies under the 1967 Treaty on the Exploration and Use of Outer Space.?
A:
a. State Parties undertakes not to place in orbit around the Earth any objects
carrying nuclear weapons or any other kinds of weapons of mass destruction,
install such weapons on celestial bodies, or station such weapons in outer
space in any other manner.
b. Establishment of military bases, installations and fortifications, the testing of any
type of weapons and the conduct of military maneuvers on celestial bodies
shall be forbidden.
c. The Moon and other celestial bodies shall be used by all States Parties to the
Treaty exclusively for peaceful purposes.
d. The use of military personnel for scientific research or for any other peaceful
purposes shall not be prohibited.
e. The use of any equipment or facility necessary for peaceful exploration of the
Moon and other celestial bodies shall also not be prohibited.
Q: What are the duties and responsibilities of the State Parties with respect to the
astronauts?
A:
a. States Parties to the Treaty shall regard astronauts as envoys of mankind in
outer space and shall render to them all possible assistance in the event of
accident, distress, or emergency landing on the territory of another State Party
or on the high seas. When astronauts make such a landing, they shall be safely
and promptly returned to the State of registry of their space vehicle.
Q: Why are seas important?
A: The importance of the seas flows from two factors: first, they are a medium of
communication, and second, they contain vast natural resources.
Q: What is the doctrine of open seas?
A: It considers the high seas as res communis accessible to all. The doctrine,
however, recognized as permissible the delineation of a maritime belt by littoral states
as an indivisible part of its domain—this belt is the territorial sea.
Q: Explain the extent of a state’s sovereignty over waters.
A: Article 2 of the 1982 Law of the Sea lays down the statement of the extent of a
state’s sovereignty over waters:
1. The sovereignty of a coastal State extends, beyond its land territory and
internal waters and, in the case of an archipelagic State, its archipelagic
waters, to an adjacent belt of sea, described as the territorial sea.
2. This sovereignty extends to the air space over the territorial sea as well as to its
bed and subsoil.
3. The sovereignty over the territorial sea is exercised subject to this Convention
and to other rules of international law.

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Q: What is territorial sea?
A: It is a belt of sea outwards from the baseline and up to 12 nautical miles
beyond.
Q: Discuss the evolution governing the width of territorial belt.
A: The original rule was the “cannon shot” rule, that is, the width of water was
measured in terms of the range of shore-based artillery. Later this became the three-
mile rule. The three mile rule has now been discarded in favor of the twelve-mile rule
now found in Article 3 of the 1982 LOS.
Q: What is the present rule with respect to the width of territorial belt of water?
A:
General rule: Application of twelve-mile rule found in Art. 3, 1982, LOS.
Exception: Where, however, the application of the twelve-mile rule to
neighboring littoral states would result in overlapping, the rule now
established is that the dividing line is a median line equidistant from
the opposite baselines.
Exception to Equidistance rule does not apply where historic title or other special
exception: circumstances require a different measurement.
Q: How to determine the extent of the territorial sea?
A: To understand the extent of the territorial sea one must begin with an
understanding of baselines.
Q: What is a baseline?
A: The baseline is “the low-water line along the coast as marked on large scale
charts officially recognized by the coastal State.” [Sec.5, 182 LOS]. The width of
the territorial sea is measured from the baseline.
Q: What are the two ways of drawing the baseline?
A: There are two ways of drawing the baseline: (a) normal and (b) straight.
Q: What is normal baseline?
A: It is one drawn following “the low-water line along the coast as marked on
large-scale charts officially recognized by the coastal State.” This line follows
the curvatures of the coast and therefore would normally not consist of straight
lines.
Q: What is the norm/standard for determining the “low-water mark”?
A: There is no fixed norm for determining the “low water mark” but “for the
purpose of measuring the breadth of the territorial sea, it is the low-water mark
as opposed to the high-water mark, or the mean between the two tides,
which has generally been adopted in the practice of States. This criterion is the
most favorable to the coastal State and clearly shows the character of
territorial waters as appurtenant to the land territory.”
Q: How is straight baseline determined?
A: Instead of following the curvatures of the coast, straight lines are drawn
connecting selected points on the coast without appreciable departure from
the general shape of the coast. Thus, in localities where the coastline is deeply
indented and cut into, or if there is a fringe of islands along the coast in its
immediate vicinity, the method of straight baselines joining appropriate points
may be employed in drawing the baseline from which the breadth of the
territorial sea is measured.
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
NOTE: R.A. No. 3046 and R.A. No. 5446 have drawn “straight baselines” around the
Philippines.
Q: What are the limitations to the use of the “straight baseline method” for
archipelagic states?
A:
1. An archipelagic State may draw straight archipelagic baselines joining the
outermost points of the outermost islands and drying reefs of the archipelago
provided that within such baselines are included the main islands and an area
in which the ratio of the area of the water to the area of the land, including
atolls, is between 1 to 1 and 9 to 1;
2. The length of such baseline shall not exceed 100 nautical miles, except that up
to 3 percent of the total number of baselines enclosing any archipelago may
exceed that length, up to a maximum length of 125 nautical miles;
3. The drawing of such baselines shall not depart to any appreciable extent from
the general configuration of the archipelago;
4. Such baselines shall not be drawn to and from low- tide elevations, unless
lighthouses or similar installations which are permanently above sea level have
been built on them or where a low-tide elevation is situated wholly or partially
at a distance not exceeding the breadth of the territorial sea of another State;
5. The system of such baselines shall not be applied to an archipelagic State in
such a manner as to cut-off from the high seas or the exclusive economic zone
the territorial sea of another State;
6. If a part of the archipelagic waters of an archipelagic State lies between two
parts of an immediately adjacent neighboring State, existing rights and all
other legitimate interests which the latter State has traditionally exercised in
such waters and all rights stipulated by agreement between those States shall
continue and be respected.
7. F or the purpose of computing the ratio of water to land under paragraph 1,
land areas may include waters lying within the hinging reefs of islands and
atolls, including that part of a steepsided oceanic plateau which is enclosed
or nearly enclosed by a chain of limestone islands and drying reefs lying on the
perimeter of the plateau.
8. The baselines drawn in accordance with this article shall be shown on charts of
a scale or scales adequate for ascertaining their position. Alternatively, lists of
geographical co-ordinates of points, specifying the geodetic datum, may be
substituted;
9. The archipelagic State shall give due publicity to such charts or lists of
geographical co-ordinates and shall deposit a copy of each such chart or list
with the Secretary-General of the United Nations.
Q: What is the rule governing sovereignty of over territorial sea?
A:
General rule: The sovereignty of the coastal state over its territorial sea and the
airspace above it as well as the seabed under is the same as its
sovereignty over its land territory. (Article 2, LOS).
Exception: The sea is subject to the right of innocent passage by other states.
The rule on innocent passage applies to ships and aircraft.
Submarines, moreover, must surface
Q: What is innocent passage?
A: It is a passage that is not prejudicial to the peace, good order or security of
the coastal state.
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Q: What are the acts not considered as innocent passage?
A:
a. any threat or use of force against the sovereignty, territorial integrity or political
independence of the coastal State, or in any other manner in violation of the
principles of international law embodied in the Charter of the United Nations;
b. any exercise or practice with weapons of any kind;
c. any act aimed at collecting information to the prejudice of the defense or
security of the coastal State;
d. any act of propaganda aimed at affecting the defense or security of the
coastal State;
e. the launching, landing or taking on board of any aircraft;
f. the launching, landing or taking on board of any military device;
g. the loading or unloading of any commodity, currency or person contrary to
the customs, fiscal, immigration or sanitary laws and regulations of the coastal
State;
h. any act of willful and serious pollution contrary to this Convention;
i. any fishing activities;
j. the carrying out of research or survey activities;
k. any act aimed at interfering with any systems of communication or any other
facilities or installations of the coastal State;
l. any other activity not having a direct bearing on passage.
NOTE: Coastal states have the unilateral right to verify the innocent character of
passage, and it may take the necessary steps to prevent passage that it determines to
be not innocent. The rule on innocent passage is also applicable to straits.
A. INTERNAL WATERS
- Internal waters are all waters (part of the sea, rivers, lakes, etc.) landwards from
the baseline of the territory.
- Sovereignty over these waters is the same in extent as sovereignty over land,
and it is not subject to the right of innocent passage.
- However, in Saudi v Aramco, the arbitrator said that according to international
law — ports of every state must be open to foreign vessels and can only be
closed when vital interests of the state so requires.
- But according to the Nicaragua v. US., a coastal state may regulate access to
its ports.
PUBLIC INTERNATIONAL LAW | derF Notes
over the sea lanes and do not deprive it of authority to enact legislation to protect its
sovereignty, independence, and security.
However, concern about this problem may not be necessary because Article
8(2) itself says that the new rule applies only to “areas which had not previously been
considered as ‘internal waters.”’ The 1973 Constitution pre-dates the 1982 Convention.
C. BAYS
- The waters of a bay are considered internal waters of a coastal state.
Q: What is considered a ‘bay’?
A: It is a well- marked indentation whose penetration is in such proportion to the
width of its mouth as to contain land-locked waters and constitute more than a mere
curvature of the coast
NOTE: An indentation shall not, however, be regarded as a bay unless its area is as
large as, or larger than, that of the semi-circle whose diameter is a line drawn across the
mouth of that indentation.
Q: How is area of indentation measured?
A: The area of an indentation is that lying between the low-water mark around
the shore of the indentation and a line joining the low-water mark of its natural entrance
points. Where, because of the presence of islands, an indentation has more than one
mouth, the semi-circle shall be drawn on a line as long as the sum total of the lengths of
the lines across the different mouths. Islands within an indentation shall be included as if
they were part of the water area of the indentation.
RULES ON BAYS
Reference:
dNE = distance between the low-water marks of the natural entrance points.
NM = nautical miles
CL = closing lines shall be drawn SL = straight lines shall be drawn
1. dNE > 24NM = CL may be drawn between these two low-water marks, and the
waters enclosed thereby shall be considered as internal waters.
2. dNE < 24NM = SL 24NM within the bay in such a manner as to enclose the
maximum area of water that is possible with a line of that length.

B. ARCHIPELAGIC WATERS NOTE: Foregoing rules do not apply to so-called “historic” bays, or in any case where
- Article 8(2) of the Convention which says: “Where the establishment of a the system of straight baselines provided for in Article 7 is applied.
straight baseline in accordance with the method set forth in Article 7 has the
effect of enclosing as internal waters areas which had not previously been Q: What is historic bays?
considered as such, a right of innocent passage as provided in this Convention A: Historic bays are bays which are treated by the coastal state as internal waters
shall exist in those waters.” on the basis of historic rights acknowledged by other states.
- Article 53 of the Convention refers to this type of internal water as
“archipelagic waters” and says that “[a]n archipelagic State may designate D. CONTIGUOUS ZONE
sea lanes and air routes thereabove, suitable for the continuous and - is an area of water not exceeding 24 nautical miles from the baseline. It thus
expeditious passage of foreign ships and aircraft through or over its extends 12 nautical miles from the edge of the territorial sea.
archipelagic waters and the adjacent territorial sea.”
Q: What is the authority of the coastal State which it may exercise over its
Q: Does the provision on archipelagic water poses a problem for Philippine law contiguous zone?
which considers all waters connecting the islands as internal waters? A:
A: The Philippine government was clearly aware of these possible conflicts. a. prevent infringement of its customs, fiscal, immigration or sanitary laws and
Hence, upon its ratification of the Convention on the Law of the Sea on August 5,1984, it regulations within its territory or territorial sea
added that the provisions of the Convention on archipelagic passage through sea b. punish infringement of the above laws and regulations committed within its
lanes do not nullify or impair the sovereignty of the Philippines as an archipelagic State territory or territorial sea.
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 PUBLIC INTERNATIONAL LAW | derF Notes
H. ISLANDS
NOTE: It should be understood, however, that, according to the International Law - is a naturally formed area of land, surrounded by water, which is above water
Commission’s Commentary on the Draft, the power of control given to the littoral state at high tide.
does not change the nature of the waters. Beyond the territorial sea, the waters are - Rocks which cannot sustain human habitation or economic life of their own
high sea and are not subject to the sovereignty of the coastal state. shall have no exclusive economic zone or continental shelf.

E. EXCLUSIVE ECONOMIC ZONE (EEZ) or PATRIMONIAL SEA NOTE: Artificial islands or installations are not “islands” in the sense of Article 121.
- The doctrine on the exclusive economic zone is a recent development. However, coastal states may establish safety zones around artificial islands and
- Prior to the acceptance of this doctrine, all waters beyond the contiguous prescribe safety measures around them.
zone were considered as high seas over which no state had control.
- The exclusive economic zone is an area extending not more than 200 nautical I. HIGH SEAS
miles beyond the baseline. - all parts of the sea that are not included in the territorial sea or in the internal
waters of a State.
Q: What is the right of coastal state over the EEZ?
A: The coastal state has rights over the economic resources of the sea, seabed Q: What are the six freedoms that can be exercised in the high seas?
and subsoil — but the right does not affect the right of navigation and overflight of other A: [CAFONS]
states.
(1) freedom to lay submarine cables and pipelines;
Q: What are the two primary obligations of the coastal states over the EEZ? (2) freedom to construct artificial islands and structures; (subject to restriction)
A: (3) freedom of fishing;
1. They must ensure through proper conservation and management measures (4) freedom of overflight; (belongs to civilian and military aircraft)
that the living resources of the EEZ are not subjected to over-exploitation. (5) freedom of navigation; and
2. They must promote the objective of “optimum utilization” of the living (6) freedom of scientific research. (subject to restriction)
resources.
Q: Who has jurisdiction over ships on the high seas?
NOTE: If the coastal state does not have the capacity to harvest the allowable A: The flag state has exclusive jurisdiction over its ships on the high seas to the
catch, it must grant access to other states. extent not limited by agreement. By legal fiction, a ship is a floating part of the flag
The delimitation of the overlapping exclusive economic zone between state.
adjacent states is determined by agreement.
Q: Article 86 of the 1982 LOS, on the six freedoms, says: “The provisions of this part
F. CONTINENTAL (ARCHIPELAGIC) SHELF apply to all parts of the sea that are not included in the exclusive economic
Q: What is the continental shelf, archipelagic or insular shelf for archipelagos? zone, in the territorial sea or in the internal waters of a state, or in the
A: It refers to: archipelagic waters of an archipelagic state.” Is this the definition of high seas?
(a) the seabed and subsoil of the submarine areas adjacent to the coastal state A: No. This is not a definition of the scope of the area called “high seas.” As can
but outside the territorial sea, to a depth of two hundred meters or, beyond be noted, the contiguous zone is part of the high seas. What Article 86 does is
that limit, to where the depth allows exploitation, and to specify the areas that are not covered by all the six freedoms.
(b) the seabed and subsoil of areas adjacent to islands.
Hot Pursuit
Q: What is the right of the coastal state over the continental shelf? - hot pursuit of a foreign vessel where there is good reason to believe that the
A: ship has violated laws or regulations of a coastal state.
(a) to explore and exploit its natural resources, to erect installations needed;
(b) to erect a safety zone over its installations with a radius of 500 meters. Q: When does hot pursuit commence?
A: The pursuit must commence when the foreign vessel is within the internal
NOTE: The right does not affect the right of navigation of others. Moreover, the right waters, the archipelagic waters, the territorial waters or the contiguous zone of the
does not extend to non-resource material in the shelf area such as wrecked ship and pursuing state. It may continue into the high seas if the pursuit has not been interrupted.
their cargoes. If the foreign ship is in the contiguous zone, it may be pursued only for violations of the
rights of the coastal state in the contiguous zone.
G. DEEP SEABED: “COMMON HERITAGE OF MANKIND”
- These are areas of the sea-bed and the ocean floor, and their subsoil, which lie NOTE: Mutatis mutandis, the right of hot pursuit shall also apply to violations of
beyond any national jurisdiction. applicable laws and regulations of the coastal state in the exclusive economic zone or
- These are the common heritage of mankind and may not be appropriated by the continental shelf including the safety zones of the shelf.
any state or person.
Q: When should hot pursuit stop?
A: Hot pursuit must stop as soon as the ship pursued enters the territorial waters if
its own state or of a third state.
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Q: Who should carry out the hot pursuit?
A: Hot pursuit may be carried out only by warships or military aircraft, or any other
ship or aircraft properly marked for that purpose.
Settlement of Disputes
- Peaceful settlement of disputes is compulsory. Under Part XV of the 1982
Convention States are required to settle peacefully disputes concerning the
Convention.
Q: What if the bilateral settlement fails?
A: If a bilateral settlement fails, Article 285 requires submission of the dispute for
compulsory settlement in one of the tribunals clothed with jurisdiction. The alternatives
are the International Tribunal for the Law of the Sea, the ICJ, or an arbitral tribunal
constituted under the Convention.
In the case of Magallona v Ermita, R.A. 9522 was enacted by the Congress in March
2009 to comply with the terms of the United Nations Convention on the Law of the Sea
(UNCLOS III), which the Philippines ratified on February 27, 1984. Such compliance
shortened one baseline, optimized the location of some basepoints around the
Philippine archipelago and classified adjacent territories such as the Kalayaan Island
Ground (KIG) and the Scarborough Shoal as “regimes of islands” whose islands
generate their own applicable maritime zones.
Petitioners, assail the constitutionality of R.A. 9522 with one of their arguments
contending that the law unconstitutionally “converts” internal waters into archipelagic
waters, thus subjecting these waters to the right of innocent and sea lanes passage
under UNCLOS III, including overflight. Petitioners have contended that these passage
rights will violate the Constitution as it shall expose Philippine internal waters to nuclear
and maritime pollution hazard.
ARGUMENTS OF THE PETITIONER:
1. Petitioners submit: RA 9522 "dismembers a large portion of the national territory"
because it discards the pre-UNCLOS III demarcation of Philippine territory
under the Treaty of Paris and related treaties, successively encoded in the
definition of national territory under the 1935, 1973 and 1987 Constitutions.
Petitioners theorize that this constitutional definition trumps any treaty or
statutory provision denying the Philippines sovereign control over waters,
beyond the territorial sea recognized at the time of the Treaty of Paris, that
Spain supposedly ceded to the United States. Petitioners argue that from the
Treaty of Paris’ technical description, Philippine sovereignty over territorial
waters extends hundreds of nautical miles around the Philippine archipelago,
embracing the rectangular area delineated in the Treaty of Paris.
2. RA 9522’s use of UNCLOS III’s regime of islands framework to draw the
baselines, and to measure the breadth of the applicable maritime zones of the
KIG, "weakens our territorial claim" over that area. Petitioners add that the
KIG’s (and Scarborough Shoal’s) exclusion from the Philippine archipelagic
baselines results in the loss of "about 15,000 square nautical miles of territorial
waters," prejudicing the livelihood of subsistence fishermen. A comparison of
the configuration of the baselines drawn under RA 3046 and RA 9522 and the
extent of maritime space encompassed by each law, coupled with a reading
of the text of RA 9522 and its congressional deliberations, vis-à-vis the
Philippines’ obligations under UNCLOS III, belie this view.
3. KIG now lies outside Philippine territory because the baselines that RA 9522
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
draws do not enclose the KIG.
4. RA 9522 failed to textualize the Philippines’ claim over Sabah in North Borneo.
5. The law unconstitutionally "converts" internal waters into archipelagic waters,
hence subjecting these waters to the right of innocent and sea lanes passage
under UNCLOS III, including overflight. Petitioners extrapolate that these
passage rights indubitably expose Philippine internal waters to nuclear and
maritime pollution hazards, in violation of the Constitution.
HELD:
1. No, petitioners’ theory fails.
UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a
multilateral treaty regulating, among others, sea-use rights over maritime zones (i.e., the
territorial waters [12 nautical miles from the baselines], contiguous zone [24 nautical
miles from the baselines], exclusive economic zone [200 nautical miles from the
baselines]), and continental shelves that UNCLOS III delimits. UNCLOS III has nothing to
do with the acquisition (or loss) of territory. It is a multilateral treaty regulating, among
others, sea-use rights over maritime zones (i.e., the territorial waters [12 nautical miles
from the baselines], contiguous zone [24 nautical miles from the baselines], exclusive
economic zone [200 nautical miles from the baselines]), and continental shelves that
UNCLOS III delimits.23 UNCLOS III was the culmination of decades-long negotiations
among United Nations members to codify norms regulating the conduct of States in the
world’s oceans and submarine areas, recognizing coastal and archipelagic States’
graduated authority over a limited span of waters and submarine lands along their
coasts. Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States
parties to delimit with precision the extent of their maritime zones and continental
shelves. In turn, this gives notice to the rest of the international community of the scope
of the maritime space and submarine areas within which States parties exercise treaty-
based rights, namely, the exercise of sovereignty over territorial waters (Article 2), the
jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in the contiguous
zone (Article 33), and the right to exploit the living and non-living resources in the
exclusive economic zone (Article 56) and continental shelf (Article 77). UNCLOS III and its
ancillary baselines laws play no role in the acquisition, enlargement or, as petitioners
claim, diminution of territory. Under traditional international law typology, States acquire
(or conversely, lose) territory through occupation, accretion, cession and prescription,
not by executing multilateral treaties on the regulations of sea-use rights or enacting
statutes to comply with the treaty’s terms to delimit maritime zones and continental
shelves. Territorial claims to land features are outside UNCLOS III, and are instead
governed by the rules on general international law.
2. No, RA 9522’s Use of the Framework of Regime of Islands to Determine the
Maritime Zones of the KIG and the Scarborough Shoal, not Inconsistent with the
Philippines’ Claim of Sovereignty Over these Areas.
The configuration of the baselines drawn under RA 3046 and RA 9522 shows
that RA 9522 merely followed the basepoints mapped by RA 3046, save for at least nine
basepoints that RA 9522 skipped to optimize the location of basepoints and adjust the
length of one baseline (and thus comply with UNCLOS III’s limitation on the maximum
length of baselines). Under RA 3046, as under RA 9522, the KIG and the Scarborough
Shoal lie outside of the baselines drawn around the Philippine archipelago. This
undeniable cartographic fact takes the wind out of petitioners’ argument branding RA
9522 as a statutory renunciation of the Philippines’ claim over the KIG, assuming that
baselines are relevant for this purpose.
3. No, had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as
25 | P a g e

part of the Philippine archipelago, adverse legal effects would have ensued.
The Philippines would have committed a breach of two provisions of UNCLOS
III.
First, Article 47 (3) of UNCLOS III requires that "[t]he drawing of such baselines
shall not depart to any appreciable extent from the general configuration of the
archipelago." Second, Article 47 (2) of UNCLOS III requires that "the length of the
baselines shall not exceed 100 nautical miles," save for three per cent (3%) of the total
number of baselines which can reach up to 125 nautical miles. Although the Philippines
has consistently claimed sovereignty over the KIG and the Scarborough Shoal for
several decades, these outlying areas are located at an appreciable distance from the
nearest shoreline of the Philippine archipelago, such that any straight baseline loped
around them from the nearest basepoint will inevitably "depart to an appreciable
extent from the general configuration of the archipelago.
4. Claim over Sabah in North Borneo also untenable.
PUBLIC INTERNATIONAL LAW | derF Notes
The imposition of these passage rights through archipelagic waters under UNCLOS III
was a concession by archipelagic States, in exchange for their right to claim all the
waters landward of their baselines, regardless of their depth or distance from the coast,
as archipelagic waters subject to their territorial sovereignty. More importantly, the
recognition of archipelagic States’ archipelago and the waters enclosed by their
baselines as one cohesive entity prevents the treatment of their islands as separate
islands under UNCLOS III. Separate islands generate their own maritime zones, placing
the waters between islands separated by more than 24 nautical miles beyond the
States’ territorial sovereignty, subjecting these waters to the rights of other States under
UNCLOS III.
CHAPTER 9
JURISDICTION OF STATES
Q: Define jurisdiction.
A: Jurisdiction means the authority to affect legal interests.

Section 2 of RA 5446, which RA 9522 did not repeal, keeps open the door for Q: Enumerate the different kinds of jurisdiction.
drawing the baselines of Sabah: A.
Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago (1) legislative jurisdiction - jurisdiction to prescribe norms of conduct.
as provided in this Actis without prejudice to the delineation of the baselines of the territorial sea around (2) executive jurisdiction - jurisdiction to enforce the norms prescribed.
the territory of Sabah, situated in North Borneo, over which the Republic of the Philippines has (3) judicial jurisdiction - jurisdiction to adjudicate.
acquired dominion and sovereignty.
NOTE: International law limits itself to criminal rather than civil jurisdiction. Civil
5. UNCLOS III and RA 9522 not Incompatible with the Constitution’s Delineation of jurisdiction is a subject for private international law or conflicts of law.
Internal Waters.
Q: Enumerate the principles of jurisdiction.
Whether referred to as Philippine "internal waters" under Article I of the A:
Constitution3 or as "archipelagic waters" under UNCLOS III (Article 49 [1]), the Philippines 1. Territoriality Principle jurisdiction is based on the place where the offense is
exercises sovereignty over the body of water lying landward of the baselines, including committed.
the air space over it and the submarine areas underneath. 2. Nationality Principle jurisdiction is based on the nationality of the offender.
3. Protective Principle jurisdiction is based on whether the national interest is
The fact of sovereignty, however, does not preclude the operation of injured.
municipal and international law norms subjecting the territorial sea or archipelagic 4. Universality Principle jurisdiction is conferred in any forum that obtains
waters to necessary, if not marginal, burdens in the interest of maintaining unimpeded, physical custody of the perpetuator of certain
expeditious international navigation, consistent with the international law principle of offenses considered particularly heinous and harmful
freedom of navigation. Thus, domestically, the political branches of the Philippine to humanity.
government, in the competent discharge of their constitutional powers, may pass 5. Passive Personality jurisdiction is based on the nationality of the victim.
legislation designating routes within the archipelagic waters to regulate innocent and Principle
sea lanes passage.
NOTE: The first three are generally supported in customary law; the fourth finds
In the absence of municipal legislation, international law norms, now codified application in special circumstances; but the fifth does not enjoy wide acceptance.
in UNCLOS III, operate to grant innocent passage rights over the territorial sea or Of course jurisdiction may also be acquired through treaty.
archipelagic waters, subject to the treaty’s limitations and conditions for their exercise.
Significantly, the right of innocent passage is a customary international law, thus A. TERRITORIALITY PRINCIPLE
automatically incorporated in the corpus of Philippine law. No modern State can validly - fundamental source of jurisdiction is sovereignty over territory.
invoke its sovereignty to absolutely forbid innocent passage that is exercised in - A state has absolute, but not necessarily exclusive, power to prescribe,
accordance with customary international law without risking retaliatory measures from adjudicate and enforce rules for conduct that occurs within its territory. For this
the international community. reason, it is necessary that boundaries be determined

The fact that for archipelagic States, their archipelagic waters are subject to Q: Summarize the rules on boundaries.
both the right of innocent passage and sea lanes passage does not place them in lesser A:
footing vis-à-vis continental coastal States which are subject, in their territorial sea, to the 1. the boundary separating the land areas of two states is determined by acts of
right of innocent passage and the right of transit passage through international straits. the states expressing their consent to its location.
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2. Unless a consent to a different rule has been expressed,
(a) when the boundary between two states is a navigable river, its location is
the middle of the channel of navigation (Thalweg doctrine)',
(b) when the boundary between two states is a non- navigable river or a
lake, its location is the middle of the river or lake.
Q: Explain the ‘Effects Doctrine’?
A: A state also has jurisdiction over acts occurring outside its territory but having
effects within it.
TWO PRINCIPLES OF EFFECTS DOCTRINE
1. subjective territorial principle - a state has jurisdiction to prosecute and punish
for crime commenced within the state but completed or consummated
abroad.
2. objective territorial principle - a state has jurisdiction to prosecute and punish
for crime commenced without the state but consummated within its territory.
In the Lotus Case France v Turkey PCU, a French mail steamer Lotus, on the way to
Constantinople, collided with the Turkish cutter Boz-Kourt on the high seas. The Boz-Kourt
sank with the loss of eight sailors, all Turkish nationals. The Lotus subsequently arrived in
Constantinople at which point Turkish authorities arrested Lieutenant Demons, the
French officer in charge of the Lotus at the time of the collision, and Hassan Bey, the
captain of the Boz-Kourt. Both were charged with manslaughter.
Lieutenant Demons argued that the Turkish Courts had no jurisdiction. This argument was
rejected and he was sentenced to eighty days imprisonment and a fine of twenty-two
pounds. Hassan Bey received a slightly heavier sentence.
The French Government objected to the actions of the Turkish Court. The French and
the Turks agreed to submit the dispute to the Permanent Court of International Justice
(the precursor to the ICJ).
ICJ ruled that there is no rule of international law in regard to collision cases to the effect
that criminal proceedings are exclusively within the jurisdiction of the State whose flag is
flown. The offense for which Lieutenant Demons appears to have been prosecuted was
an act of negligence or imprudence — having its origin on board the Lotus, whilst its
effects made themselves felt on board the Boz-Kourt. These two elements are, legally,
entirely inseparable so much so that their separation renders the offense nonexistent.
Neither the exclusive jurisdiction of either State, nor the limitations of the jurisdiction of
each to the occurrences which 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.
JURISDICTION OVER FOREIGN VESSELS IN THE PHILIPPINE TERRITORY
ENGLISH RULE FRENCH RULE
GR: Crimes committed aboard a foreign
Crimes perpetrated under such merchant vessels should not be
circumstances are in general triable in the prosecuted in the courts of the country
courts of the country within territory they within whose territorial jurisdiction they
were committed. were committed.
XP: Unless their commission affects the
peace and security of the territory.
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
NOTE: Of these two rules, it is the English Rule that obtains in Philippine jurisdiction,
because at present the theories and jurisprudence prevailing in the United States on the
matter are authority in the Philippines which is now a territory of the United States.
B. NATIONALITY PRINCIPLE
- every state has jurisdiction over its nationals even when those nationals are
outside the state
The petitioner, Harry M. Blackmer, a citizen of the United States resident in Paris, France,
was adjudged guilty of contempt of the Supreme Court of the District of Columbia for
failure to respond to subpoenas served upon him in France and requiring him to appear
as a witness on behalf of the United States at a criminal trial in that court. The two cases
were heard together, and a fine of $30,000 with costs was imposed in each case, to be
satisfied out of the property of the petitioner which had been seized by order of the
court. The subpoenas were issued and served, and the proceedings to punish for
contempt were taken.
In the instant case, it was ruled that while the petitioner removed his residence to
France in the year 1924, it is undisputed that he was, and continued to be, a citizen of
the United States. He continued to owe allegiance to the United States. By virtue of the
obligations of citizenship, the United States retained its authority over him, and he was
bound by its laws made applicable to him in a foreign country. Thus, although resident
abroad, the petitioner remained subject to the taxing power of the United States. For
disobedience to its laws through conduct abroad, he was subject to punishment in the
courts of the United States.
While the legislation of the Congress, unless the contrary intent appears, is construed to
apply only within the territorial jurisdiction of the United States, the question of its
application, so far as citizens of the United States in foreign countries are concerned, is
one of construction, not of legislative power. Nor can it be doubted that the United
States possesses the power inherent in sovereignty to require the return to this country of
a citizen, resident elsewhere, whenever the public interest requires it, and to penalize
him in case of refusal. [Blackmer v US]
Q: How does the state decide who its nationals?
A: Each state has the right to decide who are its nationals using either the
principle of jus sanguinis or jus soli or naturalization laws.
NOTE: However, for a state to claim a person as a national, the state must have
reasonable connection or an “effective link” with that person. The consent of the
individual alone is not enough for him to be recognized by other states as a national of
the state to which he claims to belong.
Q: Define the Effective Nationality Link.
A: The doctrine on effective nationality link is used to determine which of two
states of which a person is a national will be recognized as having the right to give
diplomatic protection to the holder of dual nationality.
Nottebohm was born a German national in 1881. He received citizenship through
naturalization from Liechtenstein (plaintiff) in 1939. Prior to this date, in 1905, Nottebohm
lived and performed substantial business dealings in Guatemala (defendant), and
returned frequently to Germany to visit family. Once Nottebohm received his citizenship
27 | P a g e

from Liechtenstein, he returned to Guatemala and Guatemalan authorities updated his
nationality in the Register of Aliens.
On July 17, 1941, the United States blacklisted Nottebohm and froze all his assets which
were located in the United States. War broke out between the United States and
Germany, and between Guatemala and Germany, on December 11, 1941. Nottebohm
was arrested in Guatemala in 1943 and deported to the United States, where he was
held until 1946 as an enemy alien. Once released, Nottebohm applied for readmission
to Guatemala, but his application was refused. Nottebohm moved his residence to
Liechtenstein (where he was a citizen), but Guatemala had already taken steps to
confiscate Nottebohm’s property in Liechtenstein.
Guatemala succeeded in 1949. Liechtenstein instituted legal proceedings against
Guatemala in the International Court of Justice (ICJ), requesting the court declare
Guatemala had violated international law “in arresting, detaining, expelling and
refusing to readmit Mr. Nottebohm and in seizing and retaining his property.”
Additionally, Liechtenstein requested the ICJ to order Guatemala to pay compensation
as reparation. Guatemala defended by contesting Nottebohm’s Liechtenstein
nationality.
Although the Court stated that it is the sovereign right of all states to determine its own
citizens and criteria for becoming one in municipal law, such a process would have to
be scrutinized on the international plane where the question is of diplomatic protection.
The Court upheld the principle of effective nationality, (the Nottebohm principle) where
the national must prove a meaningful connection to the state in question. This principle
was previously applied only in cases of dual nationality to determine which nationality
should be used in a given case. However Nottebohm had forfeited his German
nationality and thus only had the nationality of Liechtenstein. The question arises, who
then had the power to grant Nottebohm diplomatic protection?
International arbitrators have decided numerous cases of dual nationality, where the
question arose with regard to the exercise of protection. They have given their
preference to the real and effective nationality, that which accorded with the facts,
that based on stronger factual ties between the person concerned and one of the
States whose nationality is involved. Different factors are taken into consideration, and
their importance will vary from one case to the next: the habitual residence of the
individual concerned is an important factor, but there are other factors such as the
centre of his interests, his family ties, his participation in public life, attachment shown by
him for a given country and inculcated in his children, etc.
The practice of certain States which refrain from exercising protection in favor of a
naturalized person when the latter has in fact, by his prolonged absence, severed his
links with what is no longer for him anything but his nominal country, manifests the view
of these States that, in order to be capable of being invoked against another State,
nationality must correspond with the factual situation.
According to the practice of States, to arbitral and judicial decisions and to the opinions
of writers, nationality is a legal bond having as its basis a social fact of attachment, a
genuine connection of existence, interests and sentiments, together with the existence
of reciprocal rights and duties. It may be said to constitute the juridical expression of the
fact that the individual upon whom it is conferred, either directly by the law or as the
result of an act of the authorities, is in fact more closely connected with the population
of the State conferring nationality than with that of any other State. Conferred by a
State, it only entitles that State to exercise protection vis-d-vis another State, if it
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
constitutes a translation into juridical terms of the individual’s connection with the State
which has made him its national.
Naturalization was asked for not so much for the purpose of obtaining a legal
recognition of Nottebohm’s membership in fact in the population of Liechtenstein, as it
was to enable him to substitute for his status as a national of a belligerent State that of a
national of a neutral State, with the sole aim of thus coming within the protection of
Liechtenstein but not of becoming wedded to its traditions, its interests, its way of life or
of assuming the obligations.
Guatemala is under no obligation to recognize a nationality granted in such
circumstances. Liechtenstein consequently is not entitled to extend its protection to
Nottebohm vis-a-vis Guatemala and its claim must, for this reason, be held to be
inadmissible. [The Nottebohm Case]
Q: Who has jurisdiction over corporations organized under the law of a particular
state?
A: As to corporations, a state has jurisdiction over corporations organized under
its laws.
Q: Who has jurisdiction over maritime vessels?
A: For maritime vessels, a state has jurisdiction over vessels flying its flag. Each
state determines requirements for registration. But flags of convenience might be
challenged on the ground of lack of sufficient link. The same principle is generally
applicable to aircraft and spacecraft.
Q: Who are considered stateless persons?
A: Stateless persons are those who do not have a nationality. They are either de
jure or de facto stateless.
DE JURE STATELESS PERSON DE FACTO STATELESS PERSON
those who have lost their nationality, if those who have a nationality but to whom
they had one, and have not acquired a protection is denied by their state when
new one. out of the state. This is the situation of
many refugees.
Q: Since stateless persons do not enjoy protection by any state, how are they
protected against violations of their human rights such as by deportation to parts
unknown?
A:
In the case of Mejoff v Director of Prisons, where petitioner, an alien of Russian descent
who was brought to this country from Shanghai as a secret operative by the Japanese
forces during the latter’s regime in the Philippines, was arrested after liberation as a
Japanese spy. Two years have passed since the Decision was promulgated, yet the
government has not found any way to remove Mejoff from the country, and absolutely
no options are in sight because no ship or country would take Mejoff.
In his second petition for habeas corpus case for Mejoff, the SC finally ordered his
release, saying that his deportation has already prolonged. No other options are in sight
because other countries refuse to take him in. Since the PHL adopted the generally
accepted principles of international law as law of the land (Art. II Sec 3), where the
“Universal Declaration of Human Rights”, approved by the UN General Assembly of
which the PHL is a member on December 10, 1948, the right to life and liberty and all
other fundamental rights as applied to all human beings were proclaimed.
28 | P a g e
 PUBLIC INTERNATIONAL LAW | derF Notes
or in part;
It was held that foreign nationals not enemies against whom no charge has been made (d) Imposing measures intended
other than that their permission to stay has expired may NOT be indefinitely be kept in to prevent births within the
detention. The protection against deprivation of liberty without due process of law and group;
except for crimes committed against the laws of the land is not limited to Philippine (e) Forcibly transferring children of
citizens but extends to all residents, except enemy aliens, regardless of nationality. As the group to another group.
applied in this case, Mejoff’s entry into the Philippines was not unlawful; he was brought
in by the Japanese whose decrees were law during the occupation. acts when committed as part of a
Crimes Against Humanity wide-spread or systematic attack
Mejoff ordered released from detention, but he shall be placed under the surveillance directed against any civilian
of the immigration authorities or their agents in such form and manner as may be population, with knowledge of the
deemed adequate to insure that he keep peace and be available when the attack:
Government is ready to deport him. (a) Murder;
(b) Extermination;
C. PROTECTIVE PRINCIPLE (c) Enslavement;
- This principle says that a state may exercise jurisdiction over conduct outside its (d) Deportation or forcible
territory that threatens its security, as long as that conduct is generally transfer of population;
recognized as criminal by states in the international community. (e) Imprisonment or other severe
deprivation of physical liberty
Exception: This conditional clause excludes acts committed in exercise of the in violation of fundamental
liberty guaranteed an alien by the law of the place where the act rules of international law;
was committed. (f) Torture;
(g) Rape, sexual slavery,
Q: Give example of acts covered by the protective principle. enforced prostitution, forced
A: (a) plots to overthrow the government; (b) forging its currency; (c) plot to pregnancy, enforced
break its immigration regulations. sterilization, or any other form
of sexual violence of
D. UNIVERSALITY PRINCIPLE comparable gravity;
- The universality principle recognizes that certain activities, universally (h) Persecution against any
dangerous to states and their subjects, require authority in all community identifiable group or
members to punish such acts wherever they may occur, even absent a link collectivity on political, racial,
between the state and the parties or the acts in question. national, ethnic, cultural,
religious, gender as defined in
Q: What are the crimes covered by universality principle? paragraph 3, or other grounds
A: (1) piracy; (2) genocide; (3) crimes against humanity; (4) war crimes; (5) air that are universally
craft piracy; and (6) terrorism. recognized as impermissible
under international law, in
Any illegal act of violence or connection with any act
Piracy depredation committed for private referred to in this paragraph
ends on the high seas or outside the or any crime within the
territorial control of any state. jurisdiction of the Court;
(i) Enforced disappearance of
Any acts committed with intent to persons;
destroy, in whole or in part, a national, (j) The crime of apartheid;
ethnical, racial or religious group, as (k) Other inhumane acts of a
such: similar character intentionally
(a) Killing members of the group; causing great suffering, or
(b) Causing serious bodily or serious injury to body or to
mental harm to members of mental or physical health.
the group; an act that constitutes a serious
Genocide (c) Deliberately inflicting on the violation of the laws of war that gives
group conditions of life rise to individual criminal responsibility.
calculated to bring about its War crimes The Court shall have jurisdiction in
physical destruction in whole respect of war crimes in particular

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when committed as part of a plan or
policy or as part of a large-scale
commission of such crimes. Article 8
enumerates in detail the war crimes
under the Geneva Convention.
any seizure or exercise of control, by
Air craft Piracy force or violence or threat of force or
violence and with wrongful intent of an
aircraft in flight in air commerce."
"The unlawful use or threatened use of
Terrorism force or violence against individuals or
property in an attempt to coerce or
intimidate governments or societies to
achieve political, religious or
ideological objectives".
Application Of Universality Principle
Adolf Eichmann was a high ranking SS officer who played a central role in the planning
and implementation of the persecution of Jews in Germany, Poland, Hungary and
several other countries before and during World War II. At the end of the war, he
escaped to Argentina where he lived and worked under an alias until May, 1960 when
he was kidnapped by Israeli agents. Argentina complained to the Security Council
about this clear violation of Argentine sovereignty. The matter was resolved jointly and
was regarded as closed the incident which arose out of the action taken by citizens of
Israel, which infringed the fundamental rights of the State of Argentina.
Eichmann was then tried in Israel under Israel’s Nazi Collaborators Law (a law enacted
after Israel became a state in 1948). He was found guilty and the conviction was
subsequently upheld by the Supreme Court of Israel. On May 31,1962, Eichmann went to
the gallows, the only person ever formally executed by the State of Israel.
Defense counsel for Eichmann argued that (1) the Israel Law, by imposing punishment
for acts done outside the boundaries of the State and before its establishment, against
persons who were not Israel citizens, and by a person who acted in the course of duty
on behalf of a foreign country (“Act of State”), conflicts with international law and
exceeds the powers of the Israel Legislature; and (2) the prosecution of the accused in
Israel following his abduction from a foreign country conflicts with international law and
exceeds the jurisdiction of the Court.
The arbitration however resolved otherwise. It held that the crimes established in the
Law of 1950 must be seen today as acts that have always been forbidden by customary
international law — acts which are of a “universal” criminal character and entail
individual criminal responsibility. Therefore, the enactment of the Law was not, from the
point of view of international law, a legislative act that conflicted with the principle nulla
poena or the operation of which was retroactive, but rather one by which the Knesset
gave effect to intentional law and its objectives.
It is the universal character of the crimes in question which vests in every State the
power to try those who participated in the preparation of such crimes, and to punish
them therefor. One of the principles whereby States assume, in one degree or another,
the power to try and punish a person for an offence he has committed is the principle of
universality. Its meaning is, in essence, that that power is vested in every State regardless
of the fact that the offence was committed outside its territory by a person who did not
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
belong to it, provided he is in its custody at the time he is brought to trial. [Eichmann v
Atty General of Israel]
E. PASSIVE PERSONALITY PRINCIPLE
- The passive personality principle asserts that a state may apply law —
particularly criminal law — to an act committed outside its territory by a person
not its national where the victim of the act was its national.
- This principle has not been ordinarily accepted for ordinary torts or crimes, but
it is increasingly accepted as applied to terrorist and other organized attacks
on a state’s nationals by reason of their nationality, or to assassination of a
state’s diplomatic representatives or other officials.
THREE MODES OF RESOLVING CONFLICT IN JURISDICTION (Developed by US)
In the case of Timberlane Co v Bank of America, the question
was whether to assume jurisdiction in a Sherman Act case
involving acts emanating from Honduras. The court employed
a tripartite analysis to determine whether to assume jurisdiction
Balancing Test or not. First, was there an actual or intended effect on
American foreign commerce. Second, is the effect sufficiently
large to present a cognizable injury to the plaintiffs and,
therefore, a civil violation of the anti-trust laws. Third, are the
interests of, and link to, the United States including effects on
American foreign commerce sufficiently strong, vis-d-vis those
of other nations, to justify an assertion of extraordinary authority.
If the answer is yes to all these, then the court will assume
jurisdiction.
Even when a state has basis for exercising jurisdiction, it will
refrain from doing so if its exercise will be unreasonable.
Unreasonableness is determined by evaluating various factors,
such as the link of the activity to the territory of the regulating
International Comity state, the connection, such as nationality, residence, or
economic activity, between the regulating state and the
person principally responsible for the activity to be regulated,
the character of the activity to be regulated, the existence of
justified expectations that might be protected or hurt by the
regulation, the likelihood of conflict with regulation by another
state.
If in the whole circumstances of the case it be discovered that
Forum non there is a real unfairness to one of the suitors in permitting the
conveniens choice of a forum which is not the natural or proper forum,
either on the ground of convenience of trial or the residence or
domicile of parties or of its being the locus contractus, or locus
solutionis, then the doctrine of forum non conveniens is properly
applied.
EXTRADITION
- the surrender of an individual by the state within whose territory he is found to
the state under whose laws he is alleged to have committed a crime or to
have been convicted of a crime.
- It is a process governed by a treaty.
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Principles Governing Extradition
(1) No state is obliged to extradite unless there is a treaty;
(2) Differences in legal system can be an obstacle to interpretation of what the
crime is;
(3) Religious and political offenses are not extraditable.
Cases Where Extradition Rule Was Bypassed
In the case of US v Alvarez-Machain, the issue is whether a criminal defendant,
abducted to the United States from a nation with which it has an extradition treaty,
thereby acquires a defense to the jurisdiction of this country’s courts. It was held that the
presence of an extradition treaty between the US and another country does not
necessarily preclude obtaining a citizen of that nation through abduction. It has been
established that abduction, in and itself, does not invalidate prosecution against a
foreign national.
The same ruling was applied in the case of Ker v Illinois which involves the same factual
milieu. According to the Court, the language of the Treaty, in the context of its history,
does not support the proposition that the Treaty prohibits abductions outside of its terms.
The remaining question, therefore, is whether the Treaty should be interpreted so as to
include an implied term prohibiting prosecution where the defendant’s presence is
obtained by means other than those established by the Treaty. Thus, the fact of
respondent’s forcible abduction does not therefore prohibit his trial in a court in the
United States for violations of the criminal laws of the United States.
Q: Does extradition cases in Philippines require application of notice and
hearing?
A: No, an extradition proceeding is sui generis. It is not a criminal proceeding
which will call into operation all the rights of an accused as guaranteed by the Bill of
Rights. To begin with, the process of extradition does not involve the determination of
the guilt or innocence of an accused. His guilt or innocence will be adjudged in the
court of the state where he will be extradited. Hence, as a rule, constitutional rights that
are only relevant to determine the guilt or innocence of an accused cannot be invoked
by an extraditee especially by one whose extradition papers are still undergoing
evaluation.
EXTRADITION PROCEEDING CRIMINAL PROCEEDING
Nature. Summary. involve a full-blown trial.
Quantum of evidence. “upon showing of proof beyond reasonable doubt.
the existence of a prima facie case.”
Upon judgment. our courts may adjudge judgment becomes executory upon being
an individual extraditable but the rendered final
President has the final discretion to
extradite him.
NOTE: Extraditee has no right to notice and hearing during the evaluation stage of
the extradition process. As aforesaid, P.D. No. 1069 which implements the RP-US
Extradition Treaty affords an extraditee sufficient opportunity to meet the evidence
against him once the petition is filed in court. The time for the extraditee to know the
basis of the request for his extradition is merely moved to the filing in court of the formal
petition for extradition. The extraditee’s right to know is momentarily withheld during the
evaluation stage of the extradition process to accommodate the more compelling
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
interest of the State to prevent escape of potential extraditees which can be
precipitated by premature information of the basis of the request for his extradition. No
less compelling at that stage of the extradition proceedings is the need to be more
deferential to the judgment of a co-equal branch of the government, the Executive,
which has been endowed by our Constitution with greater power over matters involving
our foreign relations.
Q: Is bail applicable to extradition cases?
A: Yes, the Court emphasized that bail may be granted to a possible extraditee
only upon a clear and convincing showing that:
(1) he will not be a flight risk or a danger to the community, and
(2) there exist special, humanitarian and compelling circumstances.
CHAPTER 10
IMMUNITY FROM JURISDICTION
General rule: Jurisdiction of the state within its territory is complete and absolute.
Exceptions: (1) Sovereign immunity and; (2) Immunity of the head of state.
Q: What is the basis of the immunity of the states?
A: The practical justification for the doctrine of sovereign immunity is that there
can be no legal right against the authority that makes the law on which the right
depends. In the case of foreign States, the rule is derived from the principle of the
sovereign equality of States, as expressed in the maxim par in parem non habet
imperium. All states are sovereign equals and cannot assert jurisdiction over one
another. A contrary attitude would “unduly vex the peace of nations.” The rule that a
State may not be sued without its consent is a necessary consequence of the principles
of independence and equality of States.
IMMUNITY OF HEAD OF STATE (Immunity ratione materiae)
- enjoyed by both the head of state and by the state itself.
The Sultan of Johore was sued for breach of promise to marry in a British court. The
subject of the suit therefore was a private matter, not a state matter. Upon verification
of his being a sitting foreign sovereign, the case was dismissed. The immunity that is
recognized here is absolute for a sitting head of state. [Mighell v Sultan of Johore]
Meanwhile, in the case of Pinochet, General Augusto Pinochet led a 1973 military coup
that overthrew democratically-elected Chilean President Salvador Allende. At least
3,196 people were killed or forcibly disappeared during Pinochet’s subsequent 17- year
dictatorship. Thousands more were tortured or exiled. While seeking medical help in
London, British authorities detained Pinochet on an arrest warrant issued by Spanish
Magistrate Baltasar Garzon. Garzon who had charged Pinochet with genocide,
terrorism, and torture committed during the Chilean dictatorship and was seeking his
extradition. Can it be said that the commission of a crime which is an international
crime against humanity and jus cogens is an act done in an official capacity on behalf
of the state thus entitling him to avail of immunity from prosecution as a former head of
state?
A panel of British law lords ruled otherwise. It was held that Senator Pinochet organized
and authorized torture after 8 December 1988, was not acting in any capacity which
gives rise to immunity ratione materiae because such actions were contrary to
international law. [Pinochet case]
States enjoy absolute immunity. Despite the absolute territorial jurisdiction of states, one
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 PUBLIC INTERNATIONAL LAW | derF Notes
sovereign, being bound to not degrade the dignity of his nation by placing himself it is not
within the jurisdiction of another, can be supposed to enter into foreign territory in the undertaken for
confidence that the immunities belonging to his independent sovereign station, though gain or profit.
not expressly stipulated, are reserved by implication and will be extended to him. [The
Schooner Exchange v McFaddon]
Q: How does a state claiming sovereign immunity should proceed?
A:
STATE IMMUNITY IN PUBLIC INTERNATIONAL LAW IN PHILIPPINES
- The principle that the state may not be sued without its consent found in the When a state or international agency The practice is for the foreign government
Philippine Constitution is both municipal law and also international law wishes to plead sovereign or diplomatic or the international organization to first
applicable to foreign states. immunity in a foreign court, it requests the secure an executive endorsement of its
- This is based on the principle of equality of states: par in parent non habet Foreign Office of the state where it is sued claim of sovereign or diplomatic immunity.
imperium. to convey to the court that said But how the Philippine Foreign Office
- Immunity came to be reserved only for acts jure imperii (governmental acts) defendant is entitled to immunity. conveys its endorsement to the courts
but not for acts jure gestionis (trading and commercial acts). (NOTE: Same rule varies.
applies here in Philippine jurisdiction )
Q: Is there any remedy for the private respondent for the redress of its grievances?
The restrictive application of State immunity is proper only when the proceedings arise A: Private respondent is not left without any legal remedy for the redress of its
out of commercial transactions of the foreign sovereign, its commercial activities or grievances. Under both Public International Law and Transnational Law, a person who
economic affairs. Stated differently, a State may be said to have descended to the feels aggrieved by the acts of a foreign sovereign can ask his own government to
level of an individual and can thus be deemed to have tacitly given its consent to be espouse his cause through diplomatic channels.
sued only when it enters into business contracts. It does not apply where the contract
relates to the exercise of its sovereign functions. The Republic of Indonesia entered into a Maintenance Agreement with private
respondent Vinzon Trade and Services. The Maintenance Agreement stated that
In this case, the projects [repairs of base facilities] are an integral part of the naval base respondent shall, for a consideration, maintain specified equipment at the Embassy
which is devoted to the defense of both the United States and the Philippines, premises. Finding the respondent’s work and services unsatisfactory and not in
indisputably a function of the government of the highest order; they are not utilized for compliance with the standards set in the Maintenance Agreement. Hence, the
nor dedicated to commercial or business purposes. [US v Hon Ruiz] Indonesian Embassy terminated the agreement in a letter. On the other hand,
respondent claims that the aforesaid termination was arbitrary and unlawful. Private
respondent alleged that the Republic of Indonesia has expressly waived its immunity
NOTE: (Kasi as a rule, State are immune from suits. Except when it gave it consent to from suit basing his claim upon the provision that: “Any legal action arising out of this
be sued. One manifestation of that consent is when it entered into a contract. Now we Maintenance Agreement shall be settled according to the laws of the Philippines and
have to qualify what kind of contract is entered into. Now kung governmental activities, by the proper court of Makati City, Philippines.”
then you can invoke the said right. Pero kung proprietary, which is commercial/business
purposes, no longer covered. It must be noted however that there are government The SC ruled for the petitioner where it held that submission by a foreign state to local
contracts that are governmental and has an incidental proprietary nature. In that case, jurisdiction must be clear and unequivocal. It must be given explicitly or by necessary
covered pa rin ng doctrine of state immunity. Kasi incidental lang naman.) implication. There is no dispute that the establishment of a diplomatic mission is an act
jure imperii. A sovereign State does not merely establish a diplomatic mission and leave
TENTATIVE GUIDELINES DEFINING WHAT ACTIVITIES AND TRANSACTIONS SHALL BE it at that; the establishment of a diplomatic mission encompasses its maintenance and
CONSIDERED “COMMERCIAL” AND AS CONSTITUTING ACTS JURE GESTIONIS upkeep. Hence, the State may enter into contracts with private entities to maintain the
The mere entering into a contract by a foreign state with a private party premises, furnishings and equipment of the embassy and the living quarters of its agents
cannot be the ultimate test. Such an act can only be the start of the inquiry. The logical and officials. It is therefore clear that petitioner Republic of Indonesia was acting in
question is whether the foreign state is engaged in the activity in the regular course of pursuit of a sovereign activity when it entered into a contract with respondent for the
business. upkeep or maintenance.

QUESTION: (1st) (2nd) (3rd) ANSWER: (4th) With respect to the stipulation relied by the respondent, it should not be interpreted as a
Whether the foreign If the foreign state is The particular act or If the act is in waiver of their immunity from suit but a mere stipulation that in the event they do waive
state is engaged in NOT engaged transaction must pursuit of a their immunity, Philippine laws shall govern the resolution of any legal action arising out
the activity in the regularly in a then be TESTED BY sovereign of the agreement and the proper court in Makati City shall be the agreed venue
regular course of business or trade. ITS NATURE. activity, or an thereof. In relation to the acts of the Ambassador and Minister Counsellor whether they
business. incident thereof, can be sued in their private capacity, the same was dismissed by the Court as the
then it is an act exception enumerated in the Article 31 of Vienna Convention providing for the
jure imperii, susceptibility from the suit of diplomatic agents does not obtain in the present case.
especially when [Republic of Indonesia v Vinzon}

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INSTANCES WHERE A DIPLOMATIC AGENT IS NOT IMMUNE FROM SUIT
General rule: A diplomatic agent shall enjoy immunity from the criminal jurisdiction
of the receiving State. He shall also enjoy immunity from its civil and
administrative jurisdiction.
Exceptions:
(a) a real action relating to private immovable property situated in the
territory of the receiving State, unless he holds it on behalf of the sending
State for the purposes of the mission;
(b) an action relating to succession in which the diplomatic agent is involved
as executor, administrator, heir or legatee as a private person and not on
behalf of the sending State;
(c) an action relating to any professional or commercial activity exercised by
the diplomatic agent in the receiving State outside his official functions.
DIPLOMATIC AND CONSULAR IMMUNITIES
- Official representatives of a state are given immunities and privileges when
they are within the territory of another state.
- The immunities and privileges they enjoy are personal in the sense that they
benefit the person. But the purpose of the immunities given them is functional,
that is, to enable them to perform their functions properly.
- On the part of the receiving state there lie certain obligations to protect the
representative and his property and office.
PUBLIC INTERNATIONAL LAW | derF Notes
terminate his functions with the mission. A person may be declared non grata
or not acceptable before arriving in the territory of the receiving State.”
RIGHTS AND PRIVILEGES OF THE DIPLOMATIC MISSION
a. Inviolability of mission premises and means of transport; RS has duty to protect
the premises and prevent any disturbance to the mission or impairment of its
dignity. (Art. 22)
b. Tax Exemptions for the SS and the head of mission, not extending to those
payable under the laws of RS by persons contracting with them. (Art. 23)
c. Inviolability of archives and documents of the mission. (Art. 24)
d. Free communication and inviolability of official correspondence, of the
diplomatic courier, and of the diplomatic bag. (Art. 27)
Exceptions:
1) Mission must have consent of RS to instate and use a wireless transmitter;
2) Diplomatic bag may only contain diplomatic documents or articles for official
use.
e. Inviolability of the person of diplomatic agent from arrest or detention. (Art. 29)
f. Inviolability of the private residence, property, papers, and correspondence of
a diplomatic agent. (Art. 30)
g. Immunity of diplomatic agent from criminal, civil, and administrative jurisdiction
of RS; immunity from giving evidence as witness; immunity from execution of
judgement. (Art. 31)

Q: Who are considered diplomatic representatives? Exceptions:

A: 1) real action relation to private immovable property in the RS, unless held on
a. head of the mission behalf of the SS for mission purposes;
b. members of the mission 2) action relating to succession, done as a private person and not on behalf of
c. members of the staff of the mission the SS;
d. members of diplomatic staff 3) action relating to any professional or commercial activity done in the RS
e. diplomatic agent outside his official capacity.
f. members of administrative and technical staff h. Express waiver of immunity from suit made by SS or impliedly by diplomatic
agent upon initiation of proceedings, but only in respect to compulsory
g. members of the service staff
counterclaims. Waiver of immunity from suit is distinct from waiver of immunity
h. private servant from execution. (Art. 32)
i. premises of the mission i. Exemption from social security provisions of the RS for services rendered for the
SS. (Art. 33)
FUNCTIONS OF THE DIPLOMATIC MISSION:
(a) Represent the sending state in receiving state; Exceptions:
(b) Protect its interest and its nationals; 1) private servant who is either a national or a permanent resident of the RS; and
(c) Negotiate with the government; 2) not covered by the social security provision in the SS or a third state.
(d) Report on developments and conditions in the receiving state; j. Tax exemption of diplomatic agents. (Art. 34)
(e) Promote friendly relations.
Exceptions:
- Diplomatic relations between states are purely by mutual consent. 1) indirect taxes incorporated in price of goods or services;
- Before the head of mission is sent to the receiving state, an agreement must 2) dues and taxes on private immovable property in RS (unless on behalf of SS, for
first be obtained. mission purpose);
- The receiving state is under no obligation to give reasons for refusing an 3) estate, inheritance, succession duties;
agreement. (Art. 4) 4) private income from within RS;
- Moreover, the “receiving State may at any time, and without having to explain 5) charges levied for services rendered;
its decision, notify the sending State that the head of the mission or any 6) registration, court or record fees, mortgage dues and stamp duty on
member of the diplomatic staff of the mission is persona non grata or that any immovable property.
other member of the staff of the mission is not acceptable. In any such case, k. Free entry of articles for official use of the mission and for the personal use of
the sending State shall, as appropriate, either recall the person concerned or the diplomatic agent or his family. (Art. 36)
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Exception:
Personal baggage of the diplomatic agent may be inspected in his/duly authorized
representative’s presence if there is serious ground to presume that it contains articles
not exempted, or prohibited by import or export laws or quarantine regulations.
l. Extension of immunity to family of diplomatic agent under Art. 29-36; immunity
of members of administrative and technical staff and their families under Art.
29-35; immunity of service staff for official acts and tax exemption under Art.
33; and tax exemption of private servant for emoluments due to employment.
(Art. 37)
Exceptions: (1) nationals of RS; and (2) permanent resident of RS (not for family of
diplomatic agent)
m. Immunities of a diplomatic agent who is a national or permanent resident of RS
is limited to immunity from jurisdiction and inviolability in respect to official acts.
For others, only such privileges and immunities that the RS may allow. (Art. 38)
n. Privileges and immunities begin from entry into RS, or if already there, from
notification of appointment to Ministry of Foreign Affairs of the RS. They cease
upon leaving the RS, or on reasonable period, but shall subsist even in armed
conflict. (Art. 39)
OBLIGATIONS OF DIPLOMATIC MISSION
a) To respect the laws and regulations of the RS (Art. 41)
b) To refrain from practice for personal profit any professional or commercial
activity in the RS. (Art. 42)
CONSULS AND CONSULAR IMMUNITIES
- Consuls are not concerned with political matters. They attend rather to
administrative and economic issues such as the issuance of visas.
- head of a consular post is admitted to the exercise of his functions by an
authorization from the receiving State termed an exequatur. There is no
prescribed form, but without it, he may not enter upon his duties.
- The RS may at any time notify the SS that a consular officer is persona non
grata or that any other member of the consular staff is not acceptable.
ARTICLE V. Consular Functions
a) protect the interest of the SS and of its nationals in the RS;
b) further development of economic, commercial, cultural and scientific relations
and promote friendly relations between RS and SS;
c) report on development and condition of RS;
d) issue passports and travel documents to nationals of SS and visa and
appropriate documents for those who wish to travel to SS;
e) assist nationals;
f) act as notary and civil registrar and perform administrative functions;
g) safeguard interests of nationals in cases of succession mortis causa in RS;
h) safeguard interest of nationals who are minors or lack full capacity;
i) represent or arrange representation for nationals before the tribunals or other
authorities of the RS;
j) transmit judicial and extrajudicial documents or executing letters to take
evidence for the courts of the SS;
k) exercise supervision and inspection over vessels under SS flag, aircrafts
registered in SS, and their crew;
l) extend assistance to such vessels and aircrafts and their crew;
m) other functions not prohibited by laws of RS.
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
Rights and Privileges of the Consular Mission
a) Freedom of movement (Art. 34);
b) Freedom of communication (Art. 35);
c) Communication and contact with nationals of the SS (Art. 36);
d) Personal inviolability of consular officers from arrest or detention (Art. 41)
Exceptions: (1) grave crime; and (2) pursuant to a decision by a competent judicial
authority
e) Notification of arrest, detention or prosecution (Art. 42);
f) Immunity from jurisdiction for official acts. (Art. 43);
Exceptions:
1) civil actions arising from contract not entered into in official capacity;
2) civil action by a 3rd party for damage arising from an accident in the RS cause
by a vehicle, vessel or aircraft
g) Liability to give evidence; a consular employee can’t refuse while a consular
officer may refuse without threat of coercive measure or penalty. (Art. 44)
h) Waiver of privilege and immunity under Art. 41, 43, and 44 by SS (Art. 45)
US v. Tehran: US Diplomatic and Consular Staff in Iran Case ICJ (1980)
Iranian students seized the US embassy in Tehran and a number of consulates in the
outlying cities. The Iranian authorities failed to protect the embassy and later appeared
to adopt the students’ actions. Over 50 US nationals were held hostage for 444 days.
Court must decide whether the initial attack by the students could be attributed to the
Iranian government and whether Iran was therefore in violation of its international
obligations
In deciding in favor of the US, the ICJ ruled:
a. The Iranian authorities were fully aware of their obligations under the
conventions to protect the premises of the US embassy and its diplomatic and
consular staff and were aware of the urgent need for action. They had the
means to perform their obligations but failed to do so;
b. The actions required of the Iranian Government by the Vienna Conventions
and by general IL is manifest. They must immediately take every effort and
opportunity to bring the flagrant infringements of the inviolability of the
premises, archives, and diplomatic and consular staff of the US embassy to a
speedy end and to restore the consulates to the US control, and in general
reestablish the status quo and offer reparation for damage;
c. The Iranian Government’s decision to continue the subjection of the embassy
to occupation by militants and the staff to detention as hostages clearly gave
rise to repeated and multiple breaches of the Vienna Conventions, beyond
their failure to prevent the attacks.
d. The Iranian Government did not break of diplomatic relations with the US, not
did it indicate any intention to declare any member of the US diplomatic or
consular staff in Tehran persona non grata. Thus, Iran failed to employ the
remedies placed at its disposal by diplomatic law specifically for dealing with
activities it now complains of.
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IMMUNITY OF INTERNATIONAL ORGANIZATION
- The basis of their privileges and immunities is not sovereignty but necessity for
the effective exercise of their functions.
THE ACT OF STATE DOCTRINE
The act-of-state doctrine or foreign act of state doctrine is a principle in English
and United States law which states that every sovereign state is bound to respect the
independence of every other sovereign state, and the courts will not sit in judgment of
another government's acts done within its own territory.
Through the 1982 revolution in Venezuela, Gen. Hernandez who commanded the anti-
administration party, assumed leadership of the government.
George Underhill, a US citizen, had constructed a waterworks system for Bolivar under a
contract with the government and operated a machinery repair business. Gen.
Hernandez refused to grant Underhill a passport to leave the city to coerce him to
operate his waterworks and repair works for the benefit of the community and the
revolutionary forces.
Underhill files a suit in the US to recover damages for the detention, his alleged
confinement to his own house, and for certain alleged assaults and affronts by the
soldiers of Hernadez’s army.
In denying Underhill’s plea, the US court applied the ―act of state doctrine:
a) Every sovereign state is bound to respect the independence of every other
sovereign state, and the courts of one county will not sit in judgment on the
acts of the government of another, done within its own territory.
b) Redress of grievances due to such acts must be obtained through the means
open to be availed of by sovereign powers as between themselves. [Underhill
v Hernandez]
The act of state doctrine is not a rule of international law but of judicial restraint in
domestic law, embodied by the principle of separation of powers, whereby courts
refrain from making decisions in deference to the executive who is the principal
architect of foreign relations. [Banco Nacional de Cuba v Sabbatino]
In Dunhill of London, Inc v Cuba, the issue is whether or not the failure of Cuba to return
to Dunhill funds mistakenly paid by the latter for cigars sold to him by certain
expropriated Cuban cigar business was an ―act of state.
In ruling in favor of Dunhill, the Court held that the concept of an act of state should not
be extended to include the repudiations of a purely commercial obligation owed by a
foreign sovereign or by one of its commercial instrumentalities.
Meanwhile, in the case of Kirkpatrick Co v Environmental Tectonics Corp., a contract
was entered into between the Nigerian Government and Kirkpatrick Co. for the
construction and equipment of an aeromedical center at Kaduna Air Force base in
Nigeria.
Environmental Tectonics, an unsuccessful bidder, found that Kirkpatrick had bribed
Nigerian officials to win the contract. It brought the matter to the Nigerian Air Force and
the US embassy in Lagos. US attorney for the District of NJ charged Kirkpatrick with
violations of the Foreign Corrupt Practices Act of 1977 to which the latter pleaded guilty.
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
Environmental Tectonics brought a civil action against Kirkpatrick to seek damages
under the Racketeer Influenced and Corrupt Organizations Act.
Defendant moved to dismiss the complaint on the ground of ―act of state doctrine.
SC ruled that the act of state doctrine is inapplicable where the validity of a foreign
government act is not in question, as in this case.
CHAPTER 11
STATE RESPONSIBILITY
- In traditional international law, individuals are generally considered “objects”
and not “subjects” of international law.
- They possess neither international legal rights which they could assert on their
own. Whatever wrongs may be committed against them can be redressed
only by states or organizations with international personality. Individuals,
therefore, can be objects of state vs. state litigation.
PROTECTION OF ALIENS
- No state is obliged to admit aliens into its territory unless there is a treaty
requiring it. This principle is an aspect of sovereignty.
- What states generally do is to impose legal standards for admission. Once
admitted, at least under democratic regimes, aliens may not be expelled
without due process.
- From the perspective of the state of their nationality, aliens are “nationals
abroad.” They, therefore remain important for the state of their nationality.
Hence, states do have a common interest in the protection of aliens.
- The practice of the proper treatment of aliens is based on this commonality of
interest. States protect aliens within their jurisdiction in the expectation that
their own nationals will be properly treated when residing or sojourning
abroad.
Diplomatic Protection
- A well-developed customary law for the protection of aliens. The instrument
used for the protection of aliens.
- Based on the traditional notion that the individual is an inappropriate subject
of international law and hence must have recourse to his or her state of
nationality for protection.
- Theory underlying the system is that injury to a national abroad is injury to the
individual’s state of nationality.
- The interest of the state is in the redress of the injury to itself and not of the injury
to the individual. Individuals, therefore, are at the mercy of their own state.
States enjoy discretion whether or not to espouse claims raised by individuals
in their own behalf.
Q: Is the doctrine of “effective link” applicable to corporations?
A: Yes, this is squarely answered in the Barcelona Traction Case.
Said case arose out of the adjudication in bankruptcy in Spain of Barcelona Traction, a
company incorporated in Canada. The claim’s object was to seek reparation for
damage alleged by Belgium to have been sustained by Belgian nationals, shareholders
in the company, as a result of acts said to be contrary to international law committed
towards the company by organs of the Spanish State.
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 PUBLIC INTERNATIONAL LAW | derF Notes

The Court found that Belgium lacked jus standi to exercise diplomatic protection of NOTE: Whether the insufficiency proceeds from deficient execution of an intelligent
shareholders in a Canadian company with respect to measures taken against that law or from the fact that the laws of the country do not empower the
company in Spain. It observed that when a State admits into its territory foreign authorities to measure up to international standards is immaterial.
investments or foreign nationals it is bound to extend to them the protection of the law
and to assume obligations concerning the treatment to be afforded them. But such Q: What is ‘denial of justice’ in international law?
obligations are not absolute. In order to bring a claim in respect of the breach of such A: Denial of justice exists when there is a denial, unwarranted delay or obstruction
an obligation, a State must first establish its right to do so. of access to courts, gross deficiency in the administration of judicial or remedial process,
failure to provide those guarantees which are generally considered indispensable to the
The breach, if any, was committed in this case against the company. Only the proper administration of justice, or a manifestly unjust judgment. [Art. 9, Harvard Draft
company, which was endowed with legal personality, could take action in respect of Convention on the Responsibility of States for Damages]
matters that were of a corporate character. It may be true that a wrong done to the
company frequently causes prejudice to its shareholders; but this does not imply that NOTE: An error of a national court which does not produce manifest injustice is not
both are entitled to claim compensation. Whenever a shareholder’s interests are denial of justice.
harmed by an act done to the company, it is to the latter that he has to look to institute
appropriate action. An act infringing only the company’s rights do not involve Enforcement Regimes
responsibility towards the shareholders, even if their interests are affected. In order for - The International Court of Justice, when its jurisdiction is appealed to by states
the situation to be different, the act complained of must be aimed at the direct rights of in conflict, can resolve issues of violations of the rights of aliens.
the shareholder as such, which was not the case here.
Q: What are the other ways of settlement of claims arising from the violation of the
As to who should have the right to protect the corporation, Barcelona Traction says that rights of aliens?
it is the state of nationality of the corporation, in this case Canada, which has the right, A: Claims may be settled by:
and not Belgium. [Barcelona Traction Case] (a) Ad hoc tribunals established for the purpose3; and
(b) States may also enter into lump sum settlements4.
Q: What is the international standard for the protection of aliens?
A: Two standards have emerged in modern times to compete for recognition as DOCTRINE OF STATE RESPONSIBILITY
the acceptable standard. - When an injury has been inflicted, there is need to determine whether the
state can be held responsible for it. One of the principles most strongly held by
DOCTRINE OF NATIONAL TREATMENT / MINIMUM INTERNATIONAL STANDARD states is that if a state violates a customary rule of international law or a treaty
EQUALITY OF TREATMENT obligation, it commits an “internationally wrongful act.”
Aliens are treated in the same manner as However harsh the municipal laws might
nationals of the state where they reside. be against a state’s own citizens, aliens Q: What are the three important principles under the Draft Articles on
should be protected by certain minimum Responsibility of States for Internationally Wrongful Acts?
Pros: Aliens would enjoy the same benefits standards of humane protection. This is A:
as local nationals. now the widely accepted standard. (1) element of internationally wrongful act;
(2) attributability of the wrongful act to the state;
Cons: If the state is tyrannical and its (3) enforcement of the obligation that arises from the wrongful act. [Art. 2]
municipal laws are harsh and violative of
human rights even of its own citizens, then NOTE: No state can escape this responsibility when once it has committed an act
aliens would likewise be subject to such which satisfies the requirements of an “internationally wrongful act.
harsh laws.
Elements of internationally wrongful act [Art. 2, Draft] consist of a subject and objective
Q: Supposed an alien who was working abroad was stopped by the armed men element.
and was shot to death. Is the claim that the receiving government had been negligent
in their investigation of the murder enough to deem their act violative of the minimum SUBJECTIVE OBJECTIVE
standard? the act must be attributable not to violation of an international
the persons or agencies who obligation. It may consist of
A: No. to hold them liable, the following must be present. performed it but to the state itself. something either active (action) or
First, the propriety of the government acts should be put to the tests of passive (an omission.)
international standards; and
Second, that the treatment of an alien, in order to constitute an international
delinquency should amount to an outrage, to bad faith, to willful neglect of duty, or to 3 US-Iran Claims Tribunal established by the US and Iran to deal with claims of either party arising from the
an insufficiency of governmental action so far short of international standards that every Islamic Revolution; the UN Compensation Commission established by the Security Council in 1991 to deal
reasonable and impartial man would readily recognize its insufficiency. [Neer Claim] with claims arising from Iraq’s invasion of Kuwait
4 US-Cambodia (1994) and US-Vietnam (1995) Claims Settlement Agreements.

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FAR EASTERN UNIVERSITY – INSTITUTE OF LAW

Q: What are the elements of internationally wrongful act under the Draft Articles?
A: According to the Draft Articles, an internationally wrongful act must:
(a) Be attributable to the state under international law; and
(b) Constitute a breach of international obligation of the state.
Q: What governed the characterization of an act as internationally wrongful and
its repercussions if the same act is lawful by the state’s internal law?
A: The characterization of an act of a State as internationally wrongful is
governed by international law. Such characterization is not affected by the
characterization of the same act as lawful by internal law. [Art. 3, Draft]
Q: When is there a breach of an international obligation?
A: There is a breach of an international obligation by a State when an act of that
State is not in conformity with what is required of it by that obligation, regardless of its
origin or character. [Article 12, Draft]
Q: Enumerate the acts which can be attributed to the state.
A: (1) acts of state organs (whether acting in the capacity of legislative,
executive, or judiciary); (2) acts of other persons; or (3) acts of revolutionaries.
Q: What is considered an “organ” of the state?
A: It includes any person or body which has that status in accordance with the
internal law of the State. (Note: By ‘status’, it means they are vested with a capacity to
act in behalf of the government)
Q: Discuss the effect of the conduct of an entity not an organ of the State but
empowered by law of the State to exercise elements of governmental authority.
A: The conduct of an entity which is not an organ of the State under Article 4 of
the Draft, but which is empowered by the law of that State to exercise elements of the
governmental authority shall be considered an act of the State under international law,
provided the entity was acting in that capacity in the case in question.
Q: When is the act carried out by the person or group of persons attributable to
the State?
A: The conduct of a person or group of persons shall be considered an act of the
State under international law if the person or group of persons was in fact acting on the
instructions of, or under the direction or control of, that State in carrying out the
conduct. [Art. 6, Draft]
Q: Supposed there is an absence of official authority in the act carried out by a
person or group of persons, is the conduct attributable to the State?
A: Yes, the conduct of a person or group of persons shall be considered an act of
the State under international law if the person or group of persons was in fact exercising
elements of the governmental authority in the absence or default of the official
authorities and in circumstances such as to call for the exercise of those elements of
authority.
Q: X Battalion, an international organization was formerly under the disposal of Y
State, subsequently, they were placed at the disposal of Z state. To whom the conduct of
X Battalion attributable?
A: It is attributable to Z state. The conduct of an organ placed at the disposal of a
State by another State shall be considered an act of the former State under
international law if the organ was acting in the exercise of elements of the
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
governmental authority of the State at whose disposal it had been placed. [Art. 8.
Draft]
Q: The Power Ranger, an organ of State A committed acts in excess of their
authority and in contravention of the instructions given by the State, are their acts
attributable to the State?
A: Yes. Under the Art. 9 of the Draft, the conduct of an organ of a State or of an
entity empowered to exercise elements of the governmental authority, such organ or
entity having acted in that capacity, shall be considered an act of the State under
international law even if, in the particular case, the organ or entity exceeded its
authority or contravened instructions concerning its exercise.
In the case of France v Mexico [Caire Claim], Caire, a French national, was killed in
Mexico by Mexican soldiers after they had demanded money from him. The question
submitted was whether Mexico is liable for actions of individual military personnel,
acting without orders or against the wishes of their commanding officers and
independently of the needs and aims of the revolution.
In resolving the case, the Claim commission held that as a general rule, the act of an
official is only judicially established as an act of State if such an act lies within the
official’s sphere of competence. The act of an official operating beyond this
competence is not an act of State. As an exception, in order to be able to admit the so-
called objective responsibility of the State for acts committed by its officials or organs
outside their competence, they must have acted at least to all appearances as
competent officials or organs, or they must have used powers or methods appropriate
to their official capacity.
In the present case, if it is taken into account that the perpetrators of the murder of
MJ.B. Caire were military personnel occupying the ranks of “mayor” and “capitan
primero” aided by a few privates, it is found that the conditions of responsibility
formulated above are completely fulfilled. The officers in question, whatever their
previous record, consistently conducted themselves as officers in the brigade; in this
capacity they began by exacting the remittance of certain sums of money; they
continued by having the victim taken to a barracks of the occupying troops; and it was
clearly because of the refusal of M. Caire to meet their repeated demands that they
finally shot him. Under these circumstances, there remains no doubt that, even if they
are to be regarded as having acted outside their competence, which is by no means
certain, and even if their superior officers issued a counter-order, these two officers have
involved the responsibility of the State, in view of the fact that they acted in their
capacity of officers and used the means placed at their disposition by virtue of that
capacity.
On October 22, 1946, two British cruisers and two destroyers suffered damage resulting
to the loss of the lives of forty-five British officers and sailors and forty-two others were
wounded. The United Kingdom Government had protested, stating that innocent
passage through straits is a right recognized by international law; the Albanian
Government had replied that foreign warships and merchant vessels had no right to
pass through Albanian territorial waters without prior authorization.
After the explosions on October 22nd, the UK Government sent a Note to Tirana
announcing its intention to sweep the Corfu Channel shortly. The reply was that this
consent would not be given unless the operation in question took place outside
Albanian territorial waters and that any sweep undertaken in those waters would be a
violation of Albania’s sovereignty.
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Is Albania liable for the explosions of mine within its territorial water?
It is not, indeed, contested that this minefield had been recently laid; it was in the
channel, which had been previously swept and check-swept and could be regarded
as safe, that the explosions had taken place. The nature of the damage shows that it
was due to mines of the same type as those swept on November 13th; finally, the theory
that the mines discovered on November 13th might have been laid after the explosions
on October 22nd is too improbable to be accepted. The Court does not feel that it
need pay serious attention to the suggestion that Albania herself laid the mines: that
suggestion was only put forward pro memoria, without evidence in support But the
United Kingdom also alleged the connivance of Albania: that the mine laying had been
carried out by two Yugoslav warships by the request of Albania, or with her
acquiescence. The Court finds that this collusion has not been proved.
The UK also argued that, whoever might be the authors of the mine laying, it could not
have been effected without Albania’s knowledge. True, the mere fact that mines were
laid in Albanian waters neither involves prima facie responsibility nor does it shift the
burden of proof. On the other hand, the exclusive control exercised by a State within its
frontiers may make it impossible to furnish direct proof of facts which would involve its
responsibility in case of a violation of international law. The State which is the victim
must, in that ease, be allowed a more liberal recourse to inferences of fact and
circumstantial evidence; such indirect evidence must be regarded as of especial
weight when based on a series of facts, linked together and leading logically to a single
conclusion.
In the present case two series of facts, which corroborate one another, have to be
considered.
The first relates to the Albanian Government’s attitude before and after the
catastrophe. The laying of the mines took place in a period in which it had shown its
intention to keep a jealous watch on its territorial waters and in which it was requiring
prior authorization before they were entered, this vigilance sometimes going so far as to
involve the use of force: all of which render the assertion of ignorance a priori
improbable. Moreover, when the Albanian Government had become fully aware of the
existence of a minefield, it protested strongly against the activity of the British Fleet, but
not against the laying of the mines, though this act, if effected without her consent,
would have been a very serious violation of her sovereignty; she did not notify shipping
of the existence of the minefield, as would be required by international law; and she did
not undertake any of the measures of judicial investigation which would seem to be
incumbent on her in such a case. Such an attitude could only be explained if the
Albanian Government, while knowing of the mine laying, desired the circumstances in
which it was effected to remain secret.
The second series of facts relates to the possibility of observing the mine laying from the
Albanian coast.
From all the facts and observations mentioned above, the Court draws the conclusion
that the laying of the minefield could not have been accomplished without the
knowledge of Albania. As regards the obligations resulting for her from this knowledge,
they are not disputed. It was her duty to notify shipping and especially to warn the ships
proceeding through the Strait on October 22nd of the danger to which they were
exposed. In fact, nothing was attempted by Albania to prevent the disaster, and these
grave omissions involve her international responsibility. [Corfu Channel Case UK]
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
The Nicaragua filed a complaint against US alleging the following: (a) laying of mines in
Nicaraguan ports, (b) direct action of United States personnel, or persons in its pay,
operations against oil installations and (c) genesis, development and activities of the
contra force, and the role of the United States in relation to it.
According to Nicaragua, the US conceived, created, and organized a mercenary
army, the contra force.” It is claimed by Nicaragua that the US Government devised the
strategy and directed the tactics of the contra force, and provided direct combat
support for its military operations. In the light of the evidence and material available to
it, the Court is not satisfied that all the operations launched by the contra force, at every
stage of the conflict, reflected strategy and tactics solely devised by the US. It therefore
cannot uphold the contention of Nicaragua on this point. The Court however finds it
clear that a number of operations were decided and planned, if not actually by the US
advisers, then at least in close collaboration with them, and on the basis of the
intelligence and logistic support which the US was able to offer. It is also established in
the Court’s view that the support of the US for the activities of the contras took various
forms over the years, such as logistic support the supply of information on the location
and movements of the Sandinista troops, the use of sophisticated methods of
communication, etc. The evidence does not however warrant a finding that the US
gave direct combat support, if that is taken to mean direct intervention by US combat
forces.
The Court has to determine whether the relationship of the contras to the United States
Government was such that it would be right to equate the contras, for legal purposes,
with an organ of the United States Government, or as acting on behalf of that
Government. The Court considers that the evidence available to it is insufficient to
demonstrate the total dependence of the contras on United States aid. A partial
dependency, the exact extent of which the Court cannot establish, may be inferred
from the fact that the leaders were selected by the United States, and from other
factors such as the organization, training and equipping of the force, planning of
operations, the choosing of targets and the operational support provided. There is no
clear evidence that the United States actually exercised such a degree of control as to
justify treating the contras as acting on its behalf.
Having reached the above conclusion, the Court takes the view that the contras
remain responsible for their acts, in particular the alleged violations by them of
humanitarian law. For the US to be legally responsible, it would have to be proved that
that State had effective control of the operations in the course of which the alleged
violations were committed.
Establishment of Facts: Evidence and Methods Employed by the Court in Nicaragua
Case
The Court has freedom in estimating the value of the various elements of
evidence.
a. With regard to certain documentary material (press articles and various books)
The Court has treated these with caution. It regards than not as
evidence capable of proving facts, but as material which can nevertheless
contribute to corroborating the existence of a fact and be taken into account
to show whether certain facts are matters of public knowledge.
b. With regard to statements by representatives of States
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Sometimes at the highest level, the Court takes the view that such
statements are of particular probative value when they acknowledge facts or
conduct unfavourable to the State represented by the person who made
them.
The Court has not treated as evidence any part of the testimony
which was a mere expression of opinion as to the probability or otherwise of
the existence of a fact not directly known to the witness.
c. With regard in particular to affidavits and sworn statements made by members
of a Government
The Court considers that it can certainly retain such parts of this
evidence as may be regarded as contrary to the interests or contentions of
the State to which the witness has allegiance; for the rest such evidence has to
be treated with great reserve.
Q: Is the act of revolutionaries attributable also to the state?
A: Yes, conduct of an insurrectional movement, which becomes the new
government of a State, shall be considered an act of that State under
international law. The same also holds true if the same succeeds in establishing
a new State in part of the territory of a pre-existing State or in a territory under
its administration.
In 1898, the collection of a tax newly imposed [by Great Britain] on the natives of the
Protectorate [of Sierra Leone] and known as the “hut tax” was the signal for a serious
and widespread revolt in the Ronietta district.
In the course of the rebellion all [the claimant’s] Missions were attacked, and either
destroyed or damaged, and some of the missionaries were murdered.
The contention of the United States Government before this Tribunal is that the revolt
was the result of the imposition and attempted collection of the “hut tax”; that it was
within the knowledge of the British Government that this tax was the object of deep
native resentment; that in the face of the native danger the British Government wholly
failed to take proper steps for the maintenance of order and the protection of life and
property; that the loss of life and damage to property was the result of this neglect and
failure of duty, and therefore that it is liable to pay compensation.
Should the British government be liable?
It was averred in negative. It is well-established principle of international law that no
government can be held responsible for the act of rebellious bodies of men committed
in violation of its authority, where it is itself guilty of no breach of good faith, or of no
negligence in suppressing insurrection.
The good faith of the British Government cannot be questioned, and as to the
conditions prevailing in the Protectorate there is no evidence to support the contention
that it failed in its duty to afford to adequate protection for life and property. [Home
Missionary Society Claim UJS v Great Britain]
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
The claimant, an American national, was employed by Lockheed, an American
company, in Iran who evacuated from Iran on company orders because of the
deteriorating situation. The claimant sought compensation for salary and other losses
resulting from his alleged expulsion contrary to international law.
The Claimant relies on acts committed by revolutionaries. He is unable, however, to
identify any agent of the revolutionary movement, the actions of which compelled him
to leave Iran. The acts of supporters of a revolution [as opposed to its agents] cannot
be attributed to the government following the success of the revolution just as the acts
of supporters of an existing government are not attributable to the government. This
was clearly recalled by the International Court of Justice.
The Claimant also pointed out the declarations made by the leader of the Revolution,
Ayatollah Khomeini. While these statements are of anti-foreign and in particular anti-
American sentiments, the Tribunal notes that these pronouncements were of a general
nature and did not specify that Americans should be expelled en masse. Similarly, it
cannot be said that the declarations referred to by the Claimant amounted to an
authorization to revolutionaries to act in such a way that the Claimant should be forced
to leave Iran forthwith. Nor is there any evidence that any action prompted by such
statements was the cause of the Claimant’s decision to leave Iran. In these
circumstances, the Tribunal is of the view that the Claimant has failed to prove that his
departure from Iran can be imputed to the wrongful conduct of Iran. The claim is
therefore dismissed. [Short v Iran]
PRELIMINARY OBJECTIONS
Q: What are the grounds for the dismissal of the claim of denial of justice in the
international tribunal?
A:
1. Failure to answer preliminary objections;
2. Lack of nationality link;
3. Failure to exhaust national remedies;
General rule: This rule applies only to cases founded on diplomatic protection or on
injury to aliens.
Exceptions: (1) Where the case is one involving a treaty that touches on state
rights which should be resolved on the international plain. (2) Similarly,
where a case involves a treaty which establishes a Claims
Commission, it immediately goes to the Commission.
REPARATION
- The responsible State is under an obligation to make full reparation for the
injury caused by the internationally wrongful act. [Art. 31]
- The responsible State may not rely on the provisions of its internal law as
justification for failure to comply with its obligations under this Part. [Art. 32]
Q: What consists of injury?
A: Injury consists of any damage, whether material or moral, arising in
consequence of the internationally wrongful act of a State.
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 PUBLIC INTERNATIONAL LAW | derF Notes
CHORZOW FACTORY CASE (Germany v Poland) CHAPTER 12
INTERNATIONAL HUMAN RIGHTS LAW
FACTS:
The action of Poland which the Court has judged is not an expropriation but is a seizure Definition.
of property which could not be expropriated even against compensation. - Human rights, in general terms, are those inalienable and fundamental rights
which are essential for life as human beings.
HELD:
It follows that the compensation due to German Government is not necessarily limited Three Generations of Human Rights
to the value of the undertaking at the moment of disposition, plus interest to the day of 1. traditional civil and fundamental rights;
payment. Such a limitation might result in placing Germany and the interests protected 2. social and economic rights;
by Geneva Convention, in a situation more unfavourable than that in which Germany 3. right to peace, clean environment, self-determination, common heritage of
and these interests would have been if Poland had respected the said Convention. mankind, development, minority rights.
Such a consequence would not only be unjust, but also and above all incompatible
with the aim of the Convention that is the prohibition of the liquidation of property, rights NOTE: There is dispute about the cultural in human rights.
and interests of German nationals and of companies controlled by German nationals in
Upper Silesia. Emerging Bill of International Human Rights
- the way nations treat people under their jurisdiction is no longer just a domestic
The essential principle contained in the actual notion of an illegal act is that reparation concern but also one that calls for the attention of the international
must wipe out all the consequences of the illegal act and re-establish the situation community.
would have exited if that act had not been committed. - recognizes that individuals can be subjects of international law and that they
can find protection and remedies within the international community against
Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value abuses by their own government.
which a restitution in kind would bear; the award, if need be, of damages for loss
sustained which would not be covered by restitution in kind or payment in place of its – Q: Under the UN Charter’s Preamble on human rights, what are the obligations
such are the principles which should serve to determine the amount of compensation assumed by the Organization and its Members?
due for an act contrary to international law. A: The obligations assumed by the Organization and its Members are listed in two
key articles:
CALVO CLAUSE REJECTED
- A provision in a contract to the effect that ―under no condition shall the UN shall promote:
intervention of foreign diplomatic agents in any matter related to the (a) Higher standards of living, full employment, and conditions of economic
contract‖ be resorted to. and social progress and development;
- This was rejected in North American Dredging Company Claim due to the right (b) Solutions of international economic, social, health, and related problems;
to seek redress is a sovereign prerogative of a State and a private individual and international cultural and educational cooperation; and
has no right to waive the State’s right (c) Universal respect for, and observance of, human rights and fundamental
freedoms for all without distinction as to race, sex, language, or religion.
EXPROPRIATION OF ALIEN PROPERTY [Art. 55, Preamble]
- Expropriation is the taking of property by the state.
- Property can be tangible or intangible as in the case of valuable contractual All Members pledge themselves to take joint and separate action in co-
rights. operation with the Organization for the achievement of the purposes set forth in Article
- Expropriation can be an international wrong if it is done contrary to the 55. [Art. 56]
principles of international law.
UNIVERSAL DECLARATION OF HUMAN RIGHTS
Q: What principle of expropriation is enunciated in 1962 UN General Assembly - Not seen as law but only as “a common standard” for nations to attempt to
Resolution on the Sovereignty over Natural Resources? reach. Its authority was primarily moral and political.
- Aspirations of the Declaration was embodied into conventional international
A: Expropriation shall be based on: law:
(1) grounds or reasons of public utility, security or the national inters which are (a) International Covenant on Civil and Political Rights;
recognized as overriding purely individual or private interests, both domestic (b) International Covenant on Economic, Social and Cultural Rights; and
and foreign; (c) Optional Protocol to the Covenant on Civil and Political Rights.
(2) In such cases the owner shall be paid appropriate compensation in
accordance with the rules in force in the state taking such measures in the
exercise of its sovereignty and in accordance with international law.

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FAR EASTERN UNIVERSITY – INSTITUTE OF LAW

Q: What is the different between ‘declaration’ and ‘covenant’?
A:
DECLARATION
the core of an international covenant lies
a meeting of minds of the contracting
parties on the specific duties and
obligations they intend to assume, and the
agreement that the undertakings must be
effectively performed.
leaves no doubt about the legal nature of
the provisions it contains
vinculum juris is created. places a duty on
the contracting parties to bring their laws
and practices into accord with the
accepted international obligations and
not to introduce new laws or practices
which would be at variance with such
obligations
PUBLIC INTERNATIONAL LAW | derF Notes
The separation between the right to leave and right to return to one’s country is to
make the limitation more narrow than for the right to leave the country since exile is now
prohibited by customary law and may even be jus cogens.
COVENANT
admits the presumption that something IV. LEGAL PERSONALITY, PRIVACY AND THE FAMILY
less than full effectiveness in terms of law is - When does one become a person? The Covenant does not say.
intended.
LEGAL PERSONALITY CAPACITY TO ACT
Whether citizens or aliens May not be available to some by reason,
for instance, infancy, minority or insanity.
often deemed to enunciate moral rules
only. V. THOUGHT, CONSCIENCE, RELIGION, EXPRESSION AND POLITICAL FREEDOMS
- This includes the explicit protection of the Right of Parents in the matter of
Religion for their children;
- Covenant prohibits ―propaganda for war.
Vinculum juris is absent in declaration.
VI. ASSOCIATIONS AND UNIONS
- Covenant is silent about the right of government employees to form unions
which is explicit in our Constitution.

THE COVENANT ON CIVIL AND POLITICAL RIGHTS VII. MINORITIES

The following are substantive rights: - guarantees “ethnic, religious or linguistic minorities”;

I. LIFE, LIBERTY AND PROPERTY, AND EQUALITY
- Does not say however when protected life begins, whereas the Philippines
protects ―the life of the unborn from conception.
- No provision on the right to property.
- On the right to life, the Covenant’s Article 6(2) expresses a bias for the abolition
of the death penalty and allows its imposition, in countries which still have
death penalty, only after conviction for the most serious crimes.
- In Article 14, it is more restrictive in the matter of publicity of criminal
proceedings ―where the interest of juvenile persons otherwise requires or the
proceedings concern matrimonial disputes or the guardianship of children.
TWO PROVISIONS ON RIGHT TO COMPENSATION
1. Anyone who has been a victim of unlawful arrest or detention;
2. Any person who has been a victim of miscarriage of justice unless the non-
disclosure of the unknown fact in time is wholly or partly attributable to him.
II. TORTURE, ILL-TREATMENT AND PRISON CONDITIONS
- Proscription on torture and other forms of ill-treatment that offend not only
against bodily integrity but also against personal dignity;
- Imprisonment in conditions seriously detrimental to a prisoner’s health
constitutes a violation of Articles 7 and 10(1) of the Covenant.
III. FREEDOM OF MOVEMENT
- Right to travel within the country, right to leave the country, right to return to
one’s country, the right to change one’s residence and the right of the aliens
not to be expelled without due process
LIMITATIONS:
a. Those provided for by law;
b. Necessary to protect national security, public order, public health or morals.
Two-fold Aspect for the Concern for Minorities
1. Fear of a secessionist movement by minorities;
2. Genuine concern for the human rights of minorities and the desire to flourish.
VIII. SELF-DETERMINATION OF PEOPLES
- Covers two important rights:
(a) Right to freely determine their political status and freely to pursue their
economic, social and cultural development;
(b) Right for their own ends, to freely dispose of the natural wealth and
resources without prejudice to any obligation arising out of international
cooperation.
Peoples - include those ruled by colonial powers; those who form a component part of
a multi-national state.
Two Aspects of Self-Determination
(a) Internal - the right “freely to determine their political status and freely pursue
their economic, social and cultural development” and the right, “for their own
ends, [to] freely dispose of the natural wealth and resources without prejudice
to any obligations arising out of international cooperation, based upon the
principle of mutual benefit, and international law.”
(b) External - belongs to colonies and to those non-self-governing and Trust
Territories.
OPTIONAL PROTOCOL ON THE COVENANT ON CIVIL AND POLITICAL RIGHTS
- This treaty is designed to enable private parties who are victims of human rights
violations;
- Complaints may be filed only against States who have ratified the Protocol.

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THE COVENANT ON ECONOMIC, SOCIAL, AND CULTURAL RIGHTS
- The rights specific to this are social welfare rights:
(a) Right to work;
(b) Right to favorable conditions of work;
(c) Right to form free trade unions;
(d) Right to social security and insurance;
(e) Right to special assistance for families;
(f) Right to adequate standard living;
(g) Right to the highest standard of physical and mental health;
(h) Right to education including compulsory primary education;
(i) Right to the enjoyment of cultural and scientific benefits and international
contracts.
DUTY TO IMPLEMENT
- The Philippines is a party to the UN Charter, UNDHR, the two Covenants, and to
the Optional Protocol to the Covenant on Civil and Political Rights;
- Those which are not self-executing provisions must be attended to by the
necessary steps, in accordance with its constitutional processes and with the
provisions of present Covenants.
Progress Realization – State is obligated to undertake a program of activities and to
realize those rights which are recognized by the Economic Covenant.
OTHER CONVENTIONS ON HUMAN RIGHTS
a. 1948 Genocide Convention;
b. 1966 Convention on the Elimination of All Forms of Racial Discrimination;
c. 1979 Convention on the Elimination of All Forms of Discrimination Against
Women;
d. 1984 Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment;
e. 1989 Convention on the Rights of the Child;
f. 1990 Convention on Migrants Workers.
CUSTOMARY HUMAN RIGHTS LAW
- It can also be said that some human rights principles have become customary
law in the light of state practice. This would include the prohibition of torture,
genocide, slavery and the prohibition of discrimination.
INTERNATIONAL IMPLEMENTATION OF HUMAN RIGHTS LAW
- Each country has the obligation to implement human rights law within its
jurisdiction properly done through municipal or regional courts.
Two different procedures used by Human Rights Commission for responding to violations
of human rights:
a. Confidential consideration under ECOSOC Resolution 1503
- The confidential findings of the Sub-Commission are brought to the attention of
CHR;
- The CHR is expected to submit its report and recommendation to the
ECOSOC;
- Procedure is kept confidential, but findings invariably find their way into media.
b. Public debate procedure under ECOSOC Resolution 1235
- Carries two types of activities:
1. It holds annual public debates in which governments and NGOs are given
opportunity to identify specific situations which deserve attention;
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
2. It engages in studies and investigations of particular situations.
INTERNATIONAL CRIMINAL COURT
- Until the establishment of ICC, international crimes were prosecuted in ad hoc
criminal courts (Nuremberg and Tokyo Tribunals)
- The goal of ICC is to demand individual and not collective accountability
- Its jurisdiction is limited to most serious international crimes: Genocide, Crimes
against Humanity, War crimes, and the Crime of Aggression
- Principle of Complementarity – the court of last resort.
CHAPTER 13
PEACEFUL SETTLEMENT OF
INTERNATIONAL DISPUTES
Q: What is the meaning of “international dispute?”
A: A dispute in international law is a technical term which means “a
disagreement on a point of law or fact, a conflict of legal views or interests between
two persons.”
NOTE: A disagreement does not amount to a dispute if its resolution would have no
practical effect on the relationship between the parties. Examples of a dispute are:
disagreements over the interpretation of a treaty or about state boundaries or about
state responsibility.
Q: What is the basis for the settlement of international disputes?
A: Article 2, paragraph 3 of the UN. Charter says: “All members shall settle their
international disputes by peaceful means in such a manner that international peace
and security, and justice, are not endangered.”
NOTE: There is no general obligation to settle disputes, except perhaps those which
according to Article 33, might endanger peace and security. But if a decision is made
to settle disputes, the obligation is to settle them by peaceful means.
PEACEFUL METHODS OF SETTLING DISPUTES
Key provisions in UN Charter:
 Art. 33 (disputes likely to endanger international peace and security)
- Parties to any dispute shall first of all seek a solution by negotiation, enquiry,
mediation, conciliation, arbitration, judicial settlement, resort to regional
agencies or arrangements, or other peaceful means of their choice.
- When it deems necessary, the SC shall call upon the parties to settle their
disputes by such means.
 Art. 36
- SC may, at any stage recommend appropriate procedures or methods of
adjustment.
- SC should take into consideration what has already been adopted by the
parties.
- SC should consider that legal disputes should generally be referred by the
parties to the ICJ.
 Art. 37
- If parties fail to settle disputes via Art. 33, they shall refer it to the SC.
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 PUBLIC INTERNATIONAL LAW | derF Notes
- If SC deems the dispute to likely endanger international peace and security, it Q: Enumerate the three (3) types of arbitral agreements.
shall: (a) take action under Art. 36; or (b) recommend appropriate terms of A:
settlement. 1. Arbitration clause incorporated as part of a treaty. This is commonly found in
commercial treaties.
 Art. 38 2. treaties whose sole function is to establish methods for the arbitration of
- If all parties request, SC may make recommendations for pacific settlement. disputes. (i.e., Hague Convention for Pacific Settlement of Disputes)
3. ad-hoc arbitral agreements. (i.e., US-Iran claims)
CLASSIFICATION OF PEACEFUL MEANS OF SETTLEMENT
2. Arbitral decisions
A. NON-JUDICIAL OR DIPLOMATIC METHODS - Applies international law UNLESS parties specify that some other law applies.
1. Negotiation
- No set rules for negotiation. It may take place at arm’s length or face to face. Q: What are the circumstances where arbitral decisions may be challenged?
But for a negotiated settlement to be legally binding, the parties must agree to A: The four most commonly accepted bases are:
it. The agreement to negotiate may be formalized in a treaty or in a simple 1. arbitral body exceeded its powers;
exchange of notes. 2. there was corruption on the part of a member of the body;
- A preliminary step to negotiation might be “good offices" when a neutral third 3. failure to state the reasons for the awards or a serious departure from a
party tries to bring two disputants together. Having been brought together, the fundamental rule of procedure;
usual first step, often required before judicial settlement, is negotiation. It may 4. the undertaking to arbitrate or the compromis is a nullity.
be carried out by diplomatic correspondence, face-to-face dialogue
between permanent envoys or by designated negotiators. Q: When may domestic courts refuse to give recognition to awards given by
- Essentially, negotiation is a giveand-take process of looking for a win-win foreign arbitral tribunals?
solution.
A: Under the grounds found in the on the Recognition and Enforcement of
2. Mediation Foreign Arbitral Awards which says:
- involves assistance by third parties who either act as bridge between parties, (1) a court in a state party to the Convention may deny recognition or
who do not meet, or who may sit with the disputants to chair meetings, enforcement to a foreign arbitral award if:
suggest solutions, cajole, etc. (a) the agreement to arbitrate was not valid under applicable law
- The mediator must be approved by both parties. (b) the party against which the award was rendered did not receive proper
notice of the proceedings or was otherwise not afforded an opportunity to
3. Inquiry present its case;
- fact-finding done by a designated group of individuals or an institution. (c) the award deals with matters outside the terms of the agreement to arbitrate;
- When undertaken with the consent of the parties, it frequently resolves disputes (d) the constitution of the arbitral tribunal or the arbitral procedure was contrary to
based solely on questions of fact. the agreement of the parties or to the law of the state where the arbitration
took place; or
4. Conciliation (e) the award has not yet become binding on the parties, or has been suspended
- a more formal technique whereby the parties agree to refer controversies to or set aside by a competent court in the state where it was made.
an individual, a group of individuals or an institution to make findings of fact
and recommendations. (2) `A court of a state party to the Convention may also deny recognition or
- As a rule, parties do not agree to be bound by recommendations. But this enforcement to a foreign arbitral award that meets the requirements of § 487 if,
clears the air. under the law of that state:

B. QUASI-JUDICIAL METHOD (a) the subject matter of the controversy is not capable of settlement by
arbitration; or
1. Arbitration (b) recognition or enforcement would be contrary to public policy. (§488, Third
- binding settlement of a dispute on the basis of law by a non-permanent body Restatement.)
designated by the parties.
- The compromis d’arbitrage is agreed upon by the parties and sets out: (a) C. JUDICIAL METHOD
composition; (b) jurisdiction; (c) rules of procedure to be applied. - All members of the UN are ipso facto parties to the Statute of the International
- States cannot be required to submit to arbitration unless there is a previous Court of Justice.
agreement making arbitration compulsory.
Q: Does being a state party to the Statute of ICJ means acceptance of the
Q: Distinguish arbitration from judicial settlement. jurisdiction of the Court?
A: What mainly distinguishes arbitration from judicial settlement is that parties A: NO. It simply means that the state may accept the jurisdiction of the court. The
have a greater say in deciding, for instance, the law to be applied and the composition Statute opens the court’s door to member states. Only states may be parties in the
of the arbitral tribunal. The process thereby becomes more flexible. court.
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NOTE: The cardinal rule in international courts is that states cannot be compelled to
submit disputes to international adjudication unless they have consented to it either
before a dispute has arisen or thereafter. States are also free to limit their acceptance
to certain types of disputes and to attach various conditions or reservations to their
acceptance.
COMPOSITION OF ICJ
Composed of a body of (a) independent judges, regardless of nationality,
(b) with high moral character, (c) who possess qualifications required by their
Art. 2 countries for appointment to the highest judicial offices OR are jurisconsults of
recognized competence in international law.
- 15 members, no two (2) of whom from the same State.
Art. 3 - If dual citizenship, nationality is based on where civil and political
rights are ordinarily exercised.
The Court can form chambers, composed of 3 or more judges, for dealing
Art. 4 with particular categories of cases; or (b) particular cases, the composition to
be approved by the parties; or (c) at the request of the parties.
Art. 26 Chamber decisions are deemed Court decisions.
- Judges of the nationality of the parties shall retain their right to sit in
the case.
- If a judge of the same nationality of a party is included in the Bench
by the Court, the other party may choose a person to sit as judge,
Art. 27 preferably among those nominated as candidates.
- If the Bench does not include a judge of the same nationality as the
judges, the parties may choose a judge.
- The President shall request the members of the Chamber to give
place as necessary.
- Several parties of the same interest are deemed one party only.
JURISDICTION OF ICJ
Contentious [Art. 36]
- All cases which parties refer to it and all matters specially provided for in the
UN Charter or in treaties and conventions in force.
- Signatory states may at any time declare compulsory recognition in relation to
any other state accepting the same obligation, the jurisdiction of the ICJ in all
legal disputes concerning: [Optional system]
(a) Interpretation of treaty
(b) Any question of international law
(c) existence of any fact which, if established, would constitute a breach
of international obligation
(d) nature or extent of the reparation for breach of international
obligation
- Declarations of compulsory recognition may be made un/conditionally, on
condition of reciprocity of several or certain states, or for a certain time.
o Submitted to the Sec.Gen of UN;
o Reciprocity enables a party to invoke a reservation to the compulsory
recognition which was not expressed in its own Declaration BUT was
expressed in the other party’s.
- In case of dispute as to Court’s jurisdiction, it shall be settled by ICJ decision.
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
- Disputes are to be settled by IL and not DL.
- Court acquires jurisdiction only upon referral by both parties.
THREE (3) WAYS TO ACCEPT ICJ’s JURISDICTION
a. Ad-hoc basis (one party applies unilaterally to the Court and is consented to
by the other party)
b. Parties adhere to a treaty which accepts jurisdiction on matters of
interpretation or application of a treaty.
c. Optional system (Unilateral declaration of recognition in relation to any other
state accepting the same jurisdiction in all legal disputes)
NOTE: The Declaration in the optional system “may be made unconditionally or on
condition of reciprocity on the part of several or certain states, or for a certain time.”
States therefore can limit the extent to which they are subjecting themselves to the
jurisdiction of the court.
Q: What is the significance of Reciprocity?
A: “Reciprocity in the case of Declarations accepting the compulsory jurisdiction
of the Court enables a Party to invoke a reservation to that acceptance which it has
not expressed in its own Declaration but which the other Party has expressed in its
Declaration.” Thus, if a party that has made a Declaration unconditionally is brought to
court by another that has made a Declaration with conditions, the former can invoke
the conditions in the latter’s Declaration.
(Simply stated for example, Ipapo State made a reservation during the ratification of
the treaty that they shall have exclusive jurisdiction over its domestic affairs to the
exclusion of ICJ. Eventually Ipapo State had a conflict with Gamponia State. The former
wanted the latter to be subjected to the jurisdiction of ICJ. Gamponia State as a
defense may use against Ipapo State its own reservation that they shall have exclusive
jurisdiction over its domestic affairs if the controversy falls in the same issue. Gamponia
State as a result may claim that it is also exercising exclusive jurisdiction.)
The U.S. acceded to the optional clause, thereby accepting the compulsory jurisdiction
of the ICJ, in August 1946. During the ratification process for that accession, however,
Senator Connally added a critical phrase to a U.S. reservation including “disputes with
regard to matters which are essentially within the domestic jurisdiction of the United
States of America as determined by the United States of America.”
On July 27, 1955, an El Al Israel airliner was driven off course by strong winds in very bad
weather. The plane innocently crossed over into Bulgarian air space. While trying to
return to its authorized course, the plane was shot down by Bulgarian military fighter
planes. All fifty-one passengers and seven crew members aboard were killed, including
six American nationals.
Investigators argued that the Bulgarian military failed to take actions required by
international civil aviation agreements involving appropriate interception and
identification of intruding aircraft. Court ruled that it did not have jurisdiction on the
grounds that Bulgaria’s acceptance of the optional clause in the Statute of the
Permanent Court of International Justice did not carry over to acceptance of the
optional clause for the ICJ when Bulgaria joined the UN in December 1955, since
Bulgaria had not been an original party to the UN Charter and the Statute of the ICJ.
Yet, US pressed ahead with its claim.
Bulgaria then went on to make four objections, among which is the Connally
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Amendment. On the grounds of reciprocity and the consensual basis of ICJ jurisdiction,
Bulgaria invoked the Connally Amendment reservation exempting from ICJ jurisdiction
matters within its internal competence. Bulgaria contended that its airspace security
and antiaircraft defenses were within its domestic jurisdiction. The Bulgarian government
argued further that it “cannot admit that matters which it rightfully determines as being
essentially within its domestic jurisdiction should be considered, directly or indirectly,
before the Court. It requests, accordingly, that the Court declare itself without
competence to adjudicate upon the application of the Government of the United
States.” [AERIAL INCIDENCE CASE U.S. v. Bulgaria]
In 1964, the US made a Optional Clause Declaration with a reservation that ―it would
remain in force for 5 years and thereafter until the expiration of 6 months after notice
was given to terminate.
The 1984 notification was deposited with the Sec.Gen. by the US, stating that ―the 1946
declaration shall not apply to disputes with any Central American State or arising out of
events in Central America...this notice shall take place immediately and remain in force
for 2 years.
The ICJ initially found that Nicaragua could rely on the 1946 declaration since it was a
―state accepting the same obligation on the basis if its own declaration under the
Statute of the PCIJ. US contends that the 1984 notification should be given effect,
thereby taking away the court’s jurisdiction over the case.
RULING:
In its 1946 declaration, the US included a proviso which required a 6 months’ notice prior
to termination.
US contends that Nicaragua was not a ―state accepting the same obligation‖ since its
own declaration was of undefined duration and thus liable to immediate termination.
Thus, Nicaragua could not rely the US’ time-limit proviso under the principle of
reciprocity. However, the Court found the same untenable, given that the time-limit
proviso was made by the US freely and by its own choice.
Furthermore, the notion of reciprocity is concerned with the scope and substance of
commitments (including reservations) and not with the formal conditions of their
creation, duration or extinction. Reciprocity cannot be invoked to excuse departure
from the terms of the State’s own declaration.
Nicaragua can invoke the 6-month notice not on the basis of reciprocity but because it
is an undertaking which is an integral part of the instrument that contains it. [Nicaragua
v US]
Portugal v Australia
In the Treaty of 1989 between Indonesia and Australia, the two countries negotiated
terms of agreements regarding the exploration and use of resources by both parties
found in the area located between the south coast of East Timor and the northern coast
of Australia known as the “Timor Gap.” Portugal argues that Indonesia does not have
the authority to enter into treaties regarding East Timor because Portugal is the legal
administrative authority as decreed by the Security Council of the United Nations.
Therefore, Australia has proceeded in unlawful actions against Portugal and against the
people of East Timor and their right to self-determination.
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
The Plaintiff in this case is the Portuguese Republic (Portugal) who argues that when
Australia signed the Treaty of 1989 with Indonesia regarding the “Timor Gap,” it did not
respect the administrative authority of Portugal concerning East Timor, and thus, did not
respect the right of the people of East Timor to self-determination.
The Defendant in this case is the Commonwealth of Australia (Australia) who asserts that
Indonesia is the legal authority concerning East Timor. Thus, there is no dispute between
Portugal and Australia because Portugal has no standing to bring this case. In addition,
the Court does not have jurisdiction in this case because Indonesia did not give
compulsory jurisdiction to the Court. Therefore, it did not give consent to have matters
regarding Indonesia and its territories decided by this Court.
ISSUE/S:
1. Is there a dispute between Portugal and Australia?
2. Does the Court have jurisdiction to decide the case?
RULING:
1. The Court ruled that there was a dispute between Portugal and Australia
regardless of whether Portugal had standing to bring this case. The Court
reasoned that because there was a disagreement between facts and points
of law, there was a conflict of legal views and thus, a dispute.
2. The Court declared that it did not have jurisdiction to decide this case.
Because the fundamental question pertinent to this conflict was, “Who
possessed the ultimate power to negotiate a treaty concerning East Timor,
Indonesia or Portugal?”
Australia’s behavior cannot be assessed without first entering into the question
why it is that Indonesia could not lawfully have concluded the 1989 Treaty, while
Portugal allegedly could have done so; the very subject-matter of the Court’s decision
would necessarily be a determination whether, having regard to the circumstances in
which Indonesia entered and remained in East Timor, it could or could not have
acquired the power to enter into treaties on behalf of East Timor relating to the
resources of its continental shelf. The Court could not make such a determination in the
absence of the consent of Indonesia. The Court would have to decide on matters
concerning Indonesian state and authority. Because Indonesia did not give consent for
matters regarding its state, conflicts, and conduct to be heard to the Court, the
International Court of Justice was unable to hear the case based on Article 35,
paragraph 2 of the Court Statute, which states that parties must give consent to the
Court.
CONCLUSION:
This case is important because it discusses the importance of jurisdiction in the Court’s
ability to hear and arbitrate a case. This is extremely important in international affairs
and international law when peaceful means of arbitration are sought to settle
international disputes. If a state does not recognize or consent to a court’s authority to
decide on an issue, it is logical to conclude that this state might not abide by the
judgments of the court concerning their state affairs. Therefore, peaceful settlements of
disputes between nations could be difficult to achieve.
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PROVISIONAL MEASURES [Art. 41]
1. The Court shall have the power to indicate, if it considers that circumstances so
require, any provisional measures which ought to be taken to preserve the
respective rights of either party.
2. Pending the final decision, notice of the measures suggested shall forthwith be
given to the parties and to the Security Council.
In the case of Nicaragua v US, pending the resolution of the case, the Court applied the
following provisional measures:
1. US should immediately cease and refrain from any action restricting, blocking
or endangering access to or from Nicaraguan ports, and, in particular, the
laying of mines;
2. The right to sovereignty and to political independence possessed by the
Republic of Nicaragua, like any other State of the region or of the world,
should be fully respected and should not in any way be jeopardized by any
military and paramilitary activities which are prohibited by the principles of
international law;
3. US Govt and the Nicaragua should each of them ensure that no action of any
kind is taken which might aggravate or extend the dispute submitted to the
Court.
LEGALITY OF USE OF FORCE: Yugoslavia v US
On 29 April 1999, the Federal Republic of Yugoslavia (FRY) instituted proceedings
against the United States of America "for violation of the obligation not to use force",
accusing US of bombing Yugoslav territory "together with other Member States of NATO".
On the same day, it submitted a request for the indication of provisional measures,
asking the ICJ to order the US to "cease immediately its acts of use of force" and to
"refrain from any act of threat or use of force" against the FRY. As a basis for the
jurisdiction of the Court, Yugoslavia invoked Article IX of the Genocide Convention, as
well as Article 38(5) of the Rules of Court.
Article IX of the Genocide Convention provides that disputes between the contracting
parties relating to the interpretation, application or fulfillment of the Convention shall be
submitted to the ICJ. As to Article 38(5) of the Rules of Court, it provides that when a
State files an application against another State which has not accepted the jurisdiction
of the Court, the application is transmitted to that other State, but no action is taken in
the proceedings unless and until that State has accepted the Court's jurisdiction for the
purposes of the case.
However, US argued that it made a clear and unambiguous reservation that with
reference to Art. IX, specific consent of the US is required in each case. US added that
there is no legally sufficient basis between the charges against the US and the supposed
jurisdictional basis under the Genocide Convention.
ISSUE:
Whether the request for the indication of provisional measures of FRY should be granted.
RULING:
NO. ICJ has NO jurisdiction to entertain the case. ICJ pointed out that it does not
automatically have jurisdiction over legal disputes between States" and that "one of the
fundamental principles of its Statute is that it cannot decide a dispute between States
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
without the consent of those States to its jurisdiction". It cannot indicate provisional
measures without its jurisdiction in the case being established prima facie.
Concerning Article IX of the Genocide Convention, the Court states that it is not
disputed that both Yugoslavia and the US are parties to that Convention, but that when
the US ratified the Convention, it made a reservation that specific consent of US is
required in each case. However, in this case, the US has indicated that it had not given
specific consent and that it would not do so. Since the Genocide Convention does not
prohibit reservations and since Yugoslavia did not object to the reservation made by the
US, the Court considers that Article IX manifestly does not constitute a basis of
jurisdiction in the case, even prima facie. As to Article 38(5) of the Rules of Court, the
Court stresses that, in the absence of consent by the US, it cannot exercise jurisdiction in
the case, even prima facie.
The Court finally observes that "there is a fundamental distinction between the question
of the acceptance by a State of the Court's jurisdiction and the compatibility of
particular acts with international law". The former requires consent; the latter question
can only be reached when the Court deals with the merits after having established its
jurisdiction and having heard full legal arguments by both parties. Whether or not States
accept the jurisdiction of the Court, they remain in any event responsible for acts
attributable to them that violate international law and that "any disputes relating to the
legality of such acts are required to be resolved by peaceful means, the choice of
which is left to the parties.
INTERVENTION [Art. 62]
Q: When state may intervene?
A: Should a state consider that it has an interest of a legal nature which may be
affected by the decision in the case; it may submit a request to the Court to be
permitted to intervene. It shall be for the Court to decide upon this request.
- Registrar shall inform all parties to a convention regarding cases which relate
to its construction. [Art. 63]
- Every state notified has the right to intervene, but the construction given by the
judgment shall be binding on the intervenor.
EL SALVADOR v HONDURAS (Nicaraguan Intervention)
Nicaragua filed an application to intervene based on Art. 62: (a) to protect the legal
rights of the Republic of Nicaragua in the Gulf of Fonseca and the adjacent maritime
areas by all legal means available; (b) to inform the Court of its legal rights which are in
issue in the dispute.
The Court points out that there must be a legal interest that may be affected. Further,
Rules of Court require a statement of the ―precise object of intervention. Court finds
that the subject of intervention is proper. El Salvador contends that for intervention to be
proper, Nicaragua must also show a ―valid like of jurisdiction between Nicaragua and
the Parties.
Nicaragua however bases jurisdiction only upon the ICJ Statute and states that Art. 62
does not require a separate title of jurisdiction.
RULING:
The Court’s decision’s binding power rests upon the agreement of both parties to the
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case to confer jurisdiction upon the Court. Normally, therefore, no other State may
involve itself in the proceedings without the consent of the original parties.
However, procedures for a third state to intervened are provided in Art. 62 and 63 of the
Court’s Statute. The Court’s competence in this matter is not derived from the consent of
the parties to the case, but the consent given by them, in becoming parties to the
Court’s statute. Thus, the Court has competence to permit intervention (subject only to
the requirements of object and purpose) even if both parties oppose.
A state allowed to intervene does not become a party to the case. It is not allowed to
tack on a new case nor have its own claims adjudicated by the Court.
It does not acquire the rights or become subject to the obligations, which attach to the
status of a party. It has the right to be heard by the Chamber, but limited to the scope
of its legal interests.
OBLIGATION TO COMPLY WITH DECISIONS
 Art. 59
- The decision of the Court has no binding force except between the parties
and in respect of that particular case.
 Art. 60
- The judgment is final and without appeal. In the event of dispute as to the
meaning or scope of the judgment, the Court shall construe it upon the
request of any party.
 Art. 61
- Application for Revision of a judgment may be made only when based upon
newly discovered fact, which must be: (a) a decisive fact; (b) at the time
judgment was given, was unknown to the Court and to the party; (c) such
ignorance was not due to negligence.
- The Court must first decide whether the fact is of such character as to lay the
case open to revision, and declaring the application admissible.
- The Court may require previous compliance with the terms of judgment before
it admits proceedings in revision.
- Application must be made within 6 months from discovery and within 10 years
from date of judgment.
 Art. 94 (UN Charter)
- If any party fails to perform any obligation under ICJ judgment, the other party
may have recourse to the SC, which may make recommendations OR decide
upon measures to be taken to give to the judgment.
- Such enforcement measures are subject to veto powers of the permanent
members.
- Winning state may make uses of alternative methods of enforcement, such as
economic or diplomatic pressure.
NOTE: Enforcement is governed by Article 94 of the UN Charter. Member states must
comply with the judgment. If a party does not comply, the aggrieved party may appeal
to the UN Security Council “which may, if it deems necessary, make recommendations
or decide upon measures to be taken to give effect to the judgment.” This may give rise
to enforcement measures, which, however, is subject to the veto powers of the
permanent members. But the winning state might make use of alternative methods of
enforcement such as diplomatic or economic pressure.
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
ADVISORY JURISDICTION
- Non-binding. Acceptance depends on internal law of the institution.
 Art. 65
- The Court may give an advisory opinion on any legal question at the request
of whatever body may be authorized by or in accordance with the Charter of
the United Nations to make such a request.
- Questions upon which the advisory opinion of the Court is asked shall be laid
before the Court by means of a written request containing an (a) exact
statement of the question upon which an opinion is required, and
accompanied by all (b) documents likely to throw light upon the question.
 Art. 96
- Security Council (SC) and General Assembly (GA) may make requests for
advisory opinion. GA may also authorize other UN agencies to seek advisory
opinion on legal questions arising within the scope of their activities.
 Art. 66
- Registrar shall:
(a) give notice of the request to all state entitled to appear before the Court;
(b) via special and direct communication, notify any state entitled to appear
or international organization likely to furnish information on the question,
within a time limit fixed by the President, that the Court will be prepared to
receive written statements OR hear at a public sitting oral statements
relating to the question
- If an entitled state fails to receive notification, it may express a desire to submit
a written statement or to be heard, and the court will decide.
- Parties which presented shall be permitted to comment on statements made
by others.
OTHER MORE ACTIVE INTERNATIONAL COURTS
1. Court of Justice of the European Communities;
2. European Court of Human Rights;
3. Benelux Court of Justice;
4. Inter-American Court of Human Rights;
The International Criminal Court entered into force only in 2002.
CHAPTER 14
THE USE OF FORCE SHORT OF WAR
- The general principle is that international law recognizes the autonomy of
individual states and their right to freedom from coercion and to the integrity
of their territory.
- Article 2(4) of the UN Charter states: “All Members shall refrain in their
international relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations.”
Q: Why does Article 2(4) of UN Charter does not use the word “war”?
A: The word “war” is a technical term which does not include some uses of force.
The prohibition in the Charter is therefore broader than the prohibition of war. Similarly, it
should be noted that the text does not merely prohibit the use of force “against the
territorial integrity or political independence of any state.” The text broadly prohibits the
use of force “in any other manner inconsistent with the Purposes of the United Nations.”
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Corfu Channel
After a British warship had been struck by mines, Britain sent additional warships to
sweep the minefields within Albanian territory arguing the theory of intervention where
its objective was to secure the mines for possible fear that they should be taken away,
and the theory of self-help.
RULING:
The Court cannot accept these lines of defense. It can only regard the alleged right of
intervention as the manifestation of policy of force which cannot find a place in
international law.
The Court is also unable to accept the theory of self-help as between independent
States, the respect for territorial sovereignty is an essential foundation for international
relations.
NOTE: The prohibition of the use of force, however, is not just conventional law. It is
customary international law.
Nicaragua v US
Consent to such resolutions is one of the forms of expression of an opinio juris with regard
to the principle of non-use of force, regarded as a principle of customary international
law, independently of the provisions, especially those of an institutional kind, to which it
is subject on the treaty-law plane of the Charter.
THE THREAT OF FORCE
- The Charter prohibits not just the use of force but also the threat of force.
Typical form of this force
- Ultimatum in which the State to which it is addressed is given a time-limit within
which to accept the demands made upon it and is told that, if it rejects the
demands, war will be declared on it or certain coercive measures such as:
(a) naval blockade
(b) bombardment, or
(c) occupation of a given territory, will be taken.
Legality of the Threat or Use of Nuclear Weapon
The Charter recognizes the inherent right of individual or collective self-defense if an
armed attack occurs. The entitlement to resort to self-defense is subject to the
conditions of necessity and proportionality.
A further lawful use of force is envisage whereby the Security Council may take military
enforcement measures in conformity of the Charter.
These apply to any use of force, regardless of the weapons employed.
INDIVIDUAL AND COLLECTIVE SELF-DEFENSE
- Exception to the prohibition of the use of force
Article 51
Measures taken by Members in the exercise of this right of self-defense shall be
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
immediately reported to the Security Council and shall not in any way affect the
authority and the responsibility of the Security Council to take at any time such action as
it deems necessary in order to maintain or restore international peace and security.
Nicaragua v US, supra
The general rule prohibiting force established in customary law allows for certain
exceptions. The exception of the right of individual or collective self-defense is also
established in customary law, which Art. 51 refers to an ―inherent right.
The Parties agree in holding that whether the response to an attack is lawful depends
on the observance of the criteria of necessity and the proportionality of the measures
taken in self-defense.
Whether self-defense be individual or collective, it can only be exercised in response to
an ―armed attack. The Court does not believe that the concept of ―armed attack‖
includes assistance to rebels. Furthermore, the Court finds that in customary international
law, there is no ruling permitting the exercise of collective self-defense in the absence of
a request by the State which is a victim of the alleged attack, this being additional to
the requirement that the State should have declared itself to have been attacked.
Q: Is anticipatory self-defense allowed?
A: There are varying views regarding this matter:
1. Those who claim the existence of the right say that the phrase “if an armed
attack occurs” is not exclusive. This is reminiscent of the view that protection of
“vital interests” justifies the use of force.
2. States do not invoke the right because they are afraid that it might be used
against them too.
- It will be recalled that Israel launched a preemptive strike against its Arab
neighbors in 1967 but the United Nations did not condemn the act.
- The Nicaragua case, even with its extensive discussion of self defense, did not
mention anticipatory self-defense.
- In the case of the Gulf War against Iraq, the Allied forces came on invitation of
Kuwait which was under invasion.
- The right to use force to defend claimed territory was rejected in the Falkland
war.
- An interesting development in the wake of the September 21 attack on the
World Trade Center is that Article 51 seems to have been used to justify a
response against a non-state aggressor. The coalition of forces which joined
the United States in the attacks on Afghanistan had the blessing of the General
Assembly, the Security Council, and of NATO.
TRADITIONALLY ALLOWABLE COERCIVE MEASURES
1. Severance of diplomatic relations
- Not prohibited but this should not be resorted to unless truly necessary
because severance might endanger peace..
Q: Distinguish severance from suspension of diplomatic relations.
A: Suspension involves withdrawal of diplomatic representation but not of
consular representation.
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2. Retorsion
- Any of the forms of counter-measures in response to an unfriendly act.
Forms of Retorsion
a. shutting of ports to vessels of an unfriendly state;
b. revocation of tariff concessions not guaranteed by treaty; or
c. display of naval forces near the waters of an unfriendly state.
3. Reprisal
- Denotes any kind 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 at of another state which has
refused to make amends for such illegal acts.
- Unlike retorsion, the acts, standing by themselves, would normally be illegal.
- Reprisal must be preceded by an unsatisfied demand for reparation.
4. Embargo
- consist of seizure of vessels even in the high seas.
- Embargo might also be pacific, as when a state keeps its own vessels for fear
that it might find their way in foreign territory.
- Their can also be collective embargo, e.g., on import of drugs or of oil.
5. Boycott
- form of reprisal which consists of suspension of trade or business relations with
the nationals of an offending state.
NOTE: Some claim that this is a form of economic aggression which should be
prohibited by law.
6. Non-intercourse
- consists of suspension of all commercial intercourse with a state.
7. Pacific blockade
- naval operation carried out in time of peace whereby a state prevents access
to or exit from particular ports or portions of the coast of another state for the
purpose of compelling the latter to yield to demands made by the blockading
state.
- It is essentially a warlike act and therefore frowned upon by the UN Charter.
PROTECTION OF NATIONALS ABROAD
- Those who assert the right to defend nationals abroad argue that the right to
protect nationals abroad can be defended as an aspect of the right to self-
defense in Article 51 since population is an essential element of statehood.
- Examples of forcible rescue of nationals:
(a) Raid of Entebee in Uganda;
(b) US intrusion into Stanleyville to rescue American students.
HUMANITARIAN INTERVENTION
- The prohibition is now considered jus cogens.
- The prevailing opinion is that intervention without the authorization of the
Security Council violates international law.
- Absence of SC’s authorization, military coercion employed to have the target
state return to a respect for human rights constitutes a breach of Article 2(4) of
the Charter. Further, as long as humanitarian crises do not transcend borders,
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
as it were, and lead to armed attacks against other states, recourse to Article
51 is not available.
NOTE: A mass exodus of refugees does not qualify as an armed attack. In the
absence of any justification unequivocally provided by the Charter “the use of force
could not be the appropriate method to monitor or ensure respect [for human rights].
In essence, therefore, the case against making humanitarian intervention an
exception to the principle of non-intervention is that its doubtful benefits would be
heavily outweighed by its costs in terms of respect for international law.
NATO, The UN and the Use of Force: Legal Aspects
Bruno Simma
Certain points on Humanitarian Intervention
a. If the Security determines that massive violations of human rights occurring
within a country constitute a threat to the peace, and then calls for or
authorizes an enforcement action to put an end to these violations, a
humanitarian intervention by means of military is permissible.
b. When humanitarian crises do not transcend borders and lead to armed
attacks against other States, recourse to Art. 51 is not available.
Reasons for the majority legal opinion against the existence of a right of Humanitarian
Intervention:
1. UN Charter and the corpus of modern international law do not seem to
specifically incorporate such right.
2. State practice provides only a handful of genuine cases of humanitarian
intervention.
3. Scope for abusing such a right argues strongly against its creation.
Whether the NATO threat employed in the Kosovo crisis as an ersatz humanitarian
intervention, or as a threat of collective counter-measures involving armed force, any
attempt at legal justification will ultimately remain unsatisfactory
NOTE: Under certain strict conditions, resort to armed force may gradually become
justified, even absent any authorization by the Security Council.
Ex Injuria Oritur Jus
Antonio Cassese
Conditions:
1. Gross and egregious breaches of human rights involving loss of life of hundreds
or thousands of innocent people, and amounting to crimes against humanity;
2. Such crimes against humanity result from anarchy in a sovereign State, proof is
necessary that the central authorities are utterly unable to put an end to those
crimes while at the same time refusing to call upon or to allow other States or
international organization to enter the territory to assist in terminating the
crimes;
3. Security Council is unable to take any coercive action to stop it because of
disagreement among the Permanent Members or because one or more of
them exercises its veto power;
4. All peaceful avenues have been exhausted, notwithstanding which, no
solution can be agreed upon by the parties to the conflict;
5. A group of States decides to try to halt the atrocities, with the support or at
49 | P a g e

least the non-opposition of the majority of Member State of UN;
6. Armed force is exclusively used for the limited purpose of stopping the
atrocities and restoring respect for human rights;
7. Use of force must be commensurate with and proportionate to the human
rights exigencies on the ground.
CHAPTER 15
THE LAW OF WAR
(INTERNATIONAL HUMANITARIAN LAW)
- Used to be known as the ‘Laws of Wars.’
- Provides for instances when the use of armed force is justifiable (jus ad be
Hum) and it regulates the conduct of armed conflict (jus in bello).
- Art. 2(4) of the UN Charter outlaws war.
- Yet, the paradox is that side by side with the prohibition of armed conflict is the
proliferation of laws of war. There are three (3) facts which explains the
paradox.
a. those who resort to the use of arms do not give up until they have achieved
victory;
b. given the first fact, humanitarian considerations dictate the need for rules
which curtail violence beyond what is necessary to achieve a state’s goal;
c. there still remains in the hearts of the soldiery an acceptance of chivalry as a
value.
- On the assumption that wars can always occur, there arose the need to
formulate laws that can humanize the conduct of war.
THE HAGUE LAW
- In 1899, 26 Countries met at The Hague and promulgated Conventions and
Declaration which adopted the principles constituting the law of armed
conflict, Law of the Hague, governing land and naval warfare.
GENEVA CONVENTIONS OF 1949
Essence: Persons not actively engaged in warfare should be treated humanely.
 Geneva “Red Cross” Conventions
a. Wounded and sick in the field;
b. Wounded, sick and shipwrecked at sea;
c. Prisoners of war;
d. Civilians.
COMMENCEMENT AND TERMINATION OF HOSTILITIES
- Under Hague Convention III, for an armed conflict to be considered a war, the
hostilities should be preceded by a declaration of war or an ultimatum with a
fixed limit;
- While the Constitution gives to the legislature the power to declare the
existence of a state of war and to enact all measures to support the war, the
actual power to make war is lodge in the executive;
- The commencement of hostilities result in the severance of all normal relations,
including treaties, except treaties of a humanitarian character;
- Nationals of a combatant State residing in enemy territory become subject to
restrictions which the enemy might impose subject to limitations found in
customary or treaty law;
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
- Merchant vessels found in enemy territory are given a period of grace to
depart;
- Laws of armed conflict remain in effect until the conflict is terminated, by
means of a
a. Peace treaty;
b. in the absence thereof, by declaration made by the combatant states
that hostilities have come to an end.
ARMISTICE - an agreement to suspend hostilities, whether local or general, does not end
the conflict but only puts an end to the active fighting.
PROTOCOL II
- Armed conflicts in which peoples are fighting against colonial domination and
alien occupation and against racist regimes in the exercise of their right of self-
determination5.
- Those engaged in such a conflict receive combatant status and are entitled
to combatant rights and duties. For instance, when captured, they are not to
be treated as ordinary criminals but as prisoners of war.
METHODS OF WARFARE: JUS IN BELLO
Declaration of St. Petersburg said that:
1. the only legitimate object which states should endeavour to accomplish
during war is to weaken the military forces of the enemy;
2. this object would be exceeded by the employment of arms which uselessly
aggravate the sufferings of disabled men, or render their death inevitable; the
employment of such arms would, therefore, be contrary to the laws of
humanity.
- The Hague Convention prohibits the employment of ―arms, projectiles or
material calculated to cause unnecessary suffering.
CARDINAL PRINCIPLES ON THE LEGALITY OF
THE THREAT OR USE OF NUCLEAR WEAPONS
1. protection of the civilian population and civilian objects and establishes the
distinction between combatants and non- combatants.
- states much never make civilians the object of attack and must consequently
never use weapons that are incapable of distinguishing between civilian and
military targets.
2. it is prohibited to cause unnecessary suffering to combatants.
- its is accordingly prohibited to use weapons causing them such harm or
uselessly aggravating their suffering.
NOTE: In application of that second principle, states do not have unlimited freedom
of choice of means in the weapons they use.
5
Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly
Relations and Co-operation among States in accordance with the Charter of the United Nations.
50 | P a g e

INTERNATIONAL COMMISSION ON RED CROSS
Basic Rules Governing Armed Conflicts
1. Soldier’s Rules6;
2. Fundamental Rules of International Humanitarian Law Applicable to Armed
Conflicts7;
3. Non-International Armed Conflicts8;
6
Soldier Rules. (1) Be a disciplined soldier. Disobedience of the laws of war dishonours your army and
yourself and causes unnecessary suffering; far from weakening the enemy’s to fight, it often strengthens it. (2)
Fight only enemy combatants and attack only military objectives. (3) Destroy no more than your mission
requires. (4) Do not fight enemies who are ‘out of combat’ [hors de combat] or surrender. Disarm them and
hand them over to your superior. (5) Collect and care for the wounded and sick, be they friend or foe. (6)
Treat all civilians and all enemies in your power with humanity. (7) Prisoners of war must be treated humanely
and are bound to give only information about their identity. No physical or mental torture of prisoners of war
is permitted. (8) Do not take hostages. (9) Abstain from all acts of vengeance. (10) Respect all persons objects
bearing the emblem of the red cross, red crescent, red lion and sun, the white flag of truce or emblems
designating cultural property. (11) Respect other people’s property. Looting is prohibited. (12) Endeavour to
prevent any breach of the above rules. Report any violation to your superior. Any breach of the law of war is
punishable.
7 In case of armed conflict not of an international character, persons should still
Fundamental Rules of International Humanitarian Law Applicable to Armed Conflicts. (1) Persons
hors de combat and those who do not take a direct part in hostilities are entitled to respect for their lives and
moral and physical integrity. They shall in all circumstances be protected and treated humanely without any
adverse distinctions. (2) It is forbidden to kill or injure an enemy who surrenders or is hors de combat. (3)
The wounded and sick shall be collected and cared for by the party to the conflict which has them in its
power. Protection also covers medical personnel, establishments, transports and equipment. The emblem of
the red cross or the red crescent is the sign of such protection and must be protected. (4) Captured
combatants and civilians under the authority of an adverse party are entitled to respect for their lives, dignity,
personal rights and convictions. They shall be protected against all acts of violence and reprisals. They shall
have the rights to correspond with their families and receive relief. (5) Everyone shall be entitled to benefit
from fundamental judicial guarantees. No one shall be responsible for an act he has not committed. No one
shall be subjected to physical and mental torture, corporal punishment or cruel or degrading treatment. (6)
Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and
means of warfare. It is prohibited to employ weapons or methods of warfare of a nature to cause unnecessary
losses or excessive suffering. (7) Parties to a conflict shall at all times distinguish between the civilian
population and combatants in order to spare civilian population and property. Neither the civilian population
as such nor civilian persons shall be the object of attack. Attacks shall be directed only against military
objectives.
8 of parties in a non-international armed conflict.
Non-International Armed Conflicts. [General Principles] (1) The obligation to distinguish between
combatants and civilians is a general rule applicable in non-international armed conflicts. It prohibits
indiscriminate attacks; (2) the prohibition of attacks against the civilian population as such or against
individual civilians is a general rule applicable in non-international conflicts. Acts of violence intended
primarily to spread terror among the civilian population are also prohibited. (3) The probation of superfluous
injury or unnecessary suffering is a general rule applicable in non-international conflicts. It prohibits, in
particular, the use of means of warfare which uselessly aggravate the sufferings of disabled men or render their
death inevitable. (4) The prohibition to kill, injure or capture an adversary by resort to perfidy is a general rule
applicable in non-international armed conflicts; in a non-international armed conflict, acts inviting the
confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord protection
under the rules of international law applicable in non-international armed conflicts, with intent to betray that
confidence, shall constitute perfidy; (5) The obligation to respect and protect medical and religious personnel
and medical units and transports in the conduct of military operations is a general rule applicable in non-
international armed conflicts. (6) The general rule prohibiting attacks against the civilian population implies, as
a corollary, the prohibition of attacks on dwellings and other installations which are used only by the civilian
population. (7) The general rule prohibiting attacks upon the civilian population implies, as a corollary, the
prohibition to attack, destroy, remove or render useless objects indispensable to the survival of the civilian
population. (8) The general rule to distinguish between combatants and civilians and the prohibition of
attacks against the civilian population as such or against individual civilians implies, in order to be effective,
that all feasible precautions have to be taken to avoid injury, loss or damage to the civilian population.
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
NEUTRALITY
- They adopt an attitude of impartiality towards the belligerents.
- Such an attitude must be recognized by belligerents and creates both rights
and duties in the neutral states.
- Decision to adopt or not to adopt a neutral stance is not governed by
international law. It is a dictated by politics. For that reason, there is no special
mode of assertion required.
- Neutrals must not engage in activities which interfere with the activities of the
belligerents.
NON-INTERNATIONAL CONFLICTS
Civil Wars
- Civil wars or rebellion do not violate international law. Article 2(4) of the
Charter does not apply to internal conflicts.
- Outside help for governments experiencing rebellion is legitimate provided
requested by the government.
- Aid to rebels is contrary to international law.
COMMON ARTICLE 3
be accorded a minimum humanitarian protection
Prohibited acts:
a. Violence like murder of all kinds, mutilation, cruel treatment and torture;
b. Taking of hostages;
c. Outrages on human dignity;
d. Passing of sentences and carrying out of executions without previous
judgment pronounced by a regular court.
NOTE: International Committee of the Red Cross – an impartial humanitarian body.
Application of Common Article 3 does not convert the conflict into an international one
and therefore does not preclude the possibility that any participant in the conflict may
be prosecuted for treason.
PROTOCOL II
- The first and only international agreement exclusively regulating the conduct
[Prohibitions and Restrictions on the Use of Certain Weapons] (1) The customary rule prohibiting the
use of chemical weapons, such as those containing asphyxiating or vesicant agents, and the use of
bacteriological (bacterial) weapons is applicable in non-international armed conflicts. (2) The customary rule
prohibiting bullets which expand or flatten easily in the human body, such as Dum-Dum bullets, is applicable
in non-international armed conflicts. (3) The customary rule prohibiting the use of poison as a means of
warfare is applicable in non-international armed conflicts. (4) In application of the general rules listed in
section A above, especially those on the distinction between combatants and civilians and on the immunity of
the civilian population, mines, booby-traps and other devices within the meaning of Protocol II to the 1980
Convention on conventional weapons may not be directed against the civilian population as such or against
individual civilians, nor used indiscriminately. The prohibition of booby-traps listed in Article 6 of the
Protocol extends to their use in non-international armed conflicts, in application of the general rules on the
distinction between combatants and civilians, the immunity of the civilian population, the prohibition of
superfluous injury or unnecessary suffering, and the prohibition of perfidy. To ensure the protection of the
civilian population referred to in the previous paragraphs, precaution must be taken to protect it from attacks
in the form of mines, booby-traps and other devices. (5) In application of the general rules listed in section A
above, especially those on the distinction between combatants and civilians and on the immunity of the
civilian population, incendiary weapons may not be directed against the civilian population as such, against
individual civilians or civilian objects, nor used indiscriminately.
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- International armed conflict – that which takes place in the territory of a
Contracting Party between its armed forces and dissident armed forces or
other organized armed groups which.
REQUIREMENTS SET DOWN BY PROTOCOL II FOR ‘MATERIAL FIELD OF APPLICATION’
a. It must take place in the territory of a High Contracting Party between its
armed forces and dissident armed forces or other organized armed groups;
b. the armed dissidents must be under responsible command;
c. they must exercise such control over a part of its territory as to enable them to
carry out sustained and concerted military operations and to implement this
Protocol.
NOTE: Protocol shall not apply to situations of internal disturbances and tensions, such
as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not
being armed conflicts. This is true even if the armed forces of the territory may have
been called upon to suppress the disorder.
INTERNATIONAL TERRORISM
- There is no crime terrorism in Philippines statute books but some acts are
considered terroristic and are independently punished by the RPC.
- Terrorism Act (British Law) – violent moves against person or property or against
public health and safety which have for their purpose to influence the
government or to intimidate a section of the public or to advance a political,
religious or ideological cause.
- Draft of an International Convention for the Suppression of the Financing of
Terrorism:
 Any person commits an offense of terrorism if he does an act intended to
cause:
(a) Death or serious bodily injury to any person;
(b) Serious damage to a State or Government Facility with the intent
to cause extensive destruction.
- Attack on WTC on 9-11 was characterized as Crime against Humanity through
the atrocious character exhibited by the act: its magnitude, gravity, targeting
of civilians.
- The importance of the characterization of the September 11 attack as a crime
against humanity is that it led to what seems to be a development in the
international law of self-defense.
NOTE: The action of the various states which have joined the coalition against the
forces of Bin Laden has assimilated the terrorist attack on the WTC to an attack by a
state sufficient to trigger resort to collective self-defense.
CHAPTER 16
INTERNATIONAL ENVIRONMENTAL LAW
- Concern about the environment is expressed by the Philippine Constitution in
Article II, Section 169.
- The protection of the environment is now also a concern of international law. It
is in fact a challenge to the development of international law because its
demands cannot be met without intrusion into the domestic jurisdiction and
9
The State shall protect and advance the right of the people to a balanced and healthful ecology in accord
with the rhythm and harmony of nature.
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
sovereignty of states. The nature and magnitude of the challenge are such
that they require not only the joint action of states but also the involvement of
non-state actors.
a. Protection of the atmosphere, the sea, land, flora and fauna;
b. Preservation of the cultural heritage of mankind.
- The protection of the environment is a vital part of contemporary human rights
doctrine, for it is a sine qua non for numerous human rights such as the right to
health, and the right to life itself.
Q: Who have environmental rights?
A: (1) Persons capable of having rights; (2) Minors pleading intergenerational
protection [Oposa v Factoran]
NOTE: Trees and others can be said to have rights only in a metaphorical sense.
SUSTAINABLE DEVELOPMENT
- A concept adopted by the World Commission on Environment and
Development.
- This encourages development in a manner and according to methods which
do not compromise the ability of future generation and other States to meet
their needs.
EMERGING PRINCIPLES
The following are declarations, hence, they do not have the force of law.
Stockholm Declaration
- Man has fundamental right to freedom, equality and adequate conditions of
life, in an environment of a quality that permits a life of dignity and well-being,
and he bears a solemn responsibility to protect and improve the environment
for present and future generations.
- Natural resources of the earth, including the air, water, land, flora and fauna
and especially representative samples of natural ecosystems, must be
safeguarded.
- Man has a special responsibility to safeguard and wisely manage the heritage
of wildlife and its habitat.
- The struggle of the peoples of ill countries against pollution should be
supported.
- States shall take all possible steps to prevent pollution of the seas.
- Resources should be made available to preserve and improve the
environment.
- Rational planning constitutes an essential tool for reconciling any conflict
between the needs of development and the need to protect and improve the
environment.
- International matters concerning the protection and improvement of the
environment should be handled in a cooperative spirit by all countries on an
equal footing.
- Man and his environment must be spared the effects of nuclear weapons and
all other means of mass destructions.
Rio Declaration
- Human beings are at the center of concerns for sustainable development.
- States have the sovereign right to exploit their own resources.
52 | P a g e
 PUBLIC INTERNATIONAL LAW | derF Notes
- In order to achieve sustainable development, environmental protection shall IMPORTANT ECONOMIC INSTITUTIONS
constitute an integral part of the development process and cannot be Bretton Woods Conference
considered in isolation from it. Objectives:
- The special situation and needs of developing countries shall be given special a. advance the reduction of tariffs and other trade barriers.
priority. b. create a global framework designed to minimize economic
- Environmental issues are best handled with the participation of all concerned conflicts.
citizens, at the relevant level.
- States shall develop national law regarding liability and compensation for the International Monetary Fund (IMF)
victims of pollution and other environmental damage. - provides short-term financing to countries in balance of payments difficulties.
- States shall immediately notify other States of any natural disasters or other
emergencies that are likely to produce sudden harmful effects on the International Bank for Reconstruction and Development (World Bank)
environment of those States. - designed to provide long-term capital to support growth and development.
- Warfare is inherently destructive of sustainable development.
International Trade Organization (ITO)
SOME TREATIES - intended to promote a liberal trading system by proscribing certain
a. Vienna Convention for the Protection of the Ozone Layer – the layer of the protectionist trade rules.
atmospheric ozone above the planetary boundary layer.
b. UN Conference on Environment and Development – stabilization of NOTE: The intended function of the ITO was eventually taken over by the General
greenhouse gas concentration in the atmosphere at a level that would Agreement on Tariff and Trade (GATT) and its successor the World Trade Organization
prevent dangerous anthropogenic interference with the climate system. (WTO). The GATT and the WTO are the most important trade oriented institutions. They
c. Kyoto Protocol – protection of the atmosphere. shape domestic import and export laws which impact on international trade on goods
d. Convention on International Trade in Endangered Species of Wild Fauna and and services.
Flora.
e. Convention on Biological Diversity. GATT went through a series of modifications Rounds with the Uruguay Round of
1994 as the final one. The final agreement proposed the establishment of a World Trade
REGIONAL TREATIES Organization (WTO) which would oversee the operation of GATT and a new General
a. Treaty of Rome Agreement on Trade and Services.
b. North American Agreement on Environmental Cooperation
c. Protocol on Environmental Protection to the Antarctic Treaty KEY PRINCIPLES OF INTERNATIONAL TRADE LAW
d. Amazon Declaration 1. Agreed Tariff Levels
- GATT contains specified tariff levels for each state. (this can be renegotiated.)
CHAPTER 17
INTERNATIONAL ECONOMIC LAW 2. Most Favored Nation Principle
- Embodies the principle of non-discrimination.
Q: What is International Economic Law? - Any special treatment given to a product from one trading partner must be
A: In its broadest sense includes all international law and international available for like products originating from or destined for other contracting
agreements governing economic transactions that cross state boundaries or that partners.
otherwise have implications for more than one state. - Tariff concessions.
It involves the movement of:
a. Goods e. Technology 3. Principle of National Treatment
b. Funds f. Vessels - Prohibits discrimination between domestic producers and foreign producers.
c. Persons g. Aircraft - Once foreign producers have paid the proper border charges, no additional
d. Intangibles burdens may be imposed on foreign products.

Characteristics: 4. Principle of Tarification

1. IEL is obviously part of public international law. (Treaties alone make this so).
2. IEL is intertwined with municipal law. The balancing of economic treaty law
with municipal law is important.
3. IEL requires multi-disciplinary thinking involving as it does not only economics
but also political science, history, anthropology, geography, etc.
4. Empirical research is very important for understanding its operation.
- Prohibits the use of quotas on imports or exports and the use of licenses on
importation or exportation.
Purpose: To prevent the imposition of non-tariff barriers.
Exception: GATT provides for a quantitative and temporary basis for balance of
payments or infant industry reasons in favor of developing states.

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EXCEPTIONS TO KEY PRINCIPLES
1. General Exceptions
a. Public morals
b. Public health
c. Currency protection
d. Products of prison labor
e. National treasures of historic, artistic, or archaeological value
f. Protection of exhaustible natural resources.
2. Security Exceptions
3. Regional Trade Exceptions
4. Exceptions for developing nations [Tanada v Angara]
Tanada v Angara
GR 118295, May 2, 1997
SUMMARY:
Petitioners assail the constitutionality of the Philippines acceding to the World Trade
Organization for being violative of provisions which are supposed to give preference to
Filipino workers and economy and on the ground that it infringes legislative and judicial
power. The WTO, through it provisions on “most favored nation” and national treatment,
require that nationals and other member countries are placed in the same footing in
terms of products and services. However, the Court brushed off these contentions and
ruled that the WTO is constitutional. Sections 10 and 12 of Article XII (National Economy
and Patrimony) should be read in relation to Sections 1 and 13 (promoting the general
welfare). Also, Section 10 is self-executing only to “rights, privileges, and concessions
covering national economy and patrimony” but not every aspect of trade and
commerce. There are balancing provisions in the Constitution allowing the Senate to
ratify the WTO agreement. Also, the Constitution doesn’t rule out foreign competition.
States waive certain amount of sovereignty when entering into treaties.
FACTS:
This case questions the constitutionality of the Philippines being part of the World Trade
Organization, particularly when President Fidel Ramos signed the Instrument of
Ratification and the Senate concurring in the said treaty.
Following World War II, global financial leaders held a conference in Bretton Woods to
discuss global economy. This led to the establishment of three great institutions:
International Bank for Reconstruction and Development (World Bank), International
Monetary Fund and International Trade Organization.
However, the ITO failed to materialized. Instead, there was the General Agreement on
Trades and Tariffs. It was on the Uruguay Round of the GATT that the WTO was then
established.
The WTO is an institution regulating trade among nations, including the reduction of tariff
and barriers.
Petitioners filed a case assailing the WTO Agreement for violating the mandate of the
1987 Constitution to “develop a self-reliant and independent national economy
effectively controlled by Filipinos, to give preference to qualified Filipinos and to
promote the preferential use of Filipino labor, domestic materials and locally produced
goods.”
FAR EASTERN UNIVERSITY – INSTITUTE OF LAW
PUBLIC INTERNATIONAL LAW | derF Notes
It is petitioners’ position that the “national treatment” and “parity provisions” of the WTO
Agreement “place nationals and products of member countries on the same footing as
Filipinos and local products,” in contravention of the “Filipino First” policy of the
Constitution. They allegedly render meaningless the phrase “effectively controlled by
Filipinos.”
PETITIONER’S CONTENTION:
 Petitioners argue that the “letter, spirit and intent” of the Constitution
mandating “economic nationalism” are violated by the so-called “parity
provisions” and “national treatment” clauses scattered in parts of WTO
Agreement
o This is in view of the most-favored nation clause (MFN) of the TRIMS
(trade-related investment measures), TRIPS (Trade Related aspects of
intellectual property rights), Trade in Services, and par. 4 of Article III
of GATT 1994.
o “shall be accorded treatment no less favorable than that accorded
to like products of national origin”
 Sec. 19, Art II:The State shall develop a self-reliant and independent national
economy effectively controlled by Filipinos.
 Sec. 10, Art XII: Congress shall enact measures that will encourage the
formation and operation of enterprises whose capital is wholly owned by
Filipinos. In the grant of rights, privileges, and concessions covering the national
economy and patrimony, the State shall give preference to qualified Filipinos.
 Sec. 12, Art XII: The State shall promote the preferential use of Filipino labor,
domestic materials and locally produced goods, and adopt measures that
help make them competitive.”
ISSUE 1:
Do the provisions of the WTO Agreement contravene Section 19, Article II and Section
10 & 12, Article XII of the 1987 Constitution? – NO.
RULING:
 These provisions are not self-executing
o Merely guides in the exercise of judicial review and in making laws.
 Secs. 10 and 12 of Article XII should be read and understood in relation to the
other sections in said article, especially Sec. 1 and 13:
o A more equitable distribution of opportunities, income and wealth;
o A sustained increase in the amount of goods and services
o An expanding productivity as the key to raising the quality of life
 The issue here is not whether this paragraph of Sec. 10 of Art. XII is self-
executing or not. Rather, the issue is whether, as a rule, there are enough
balancing provisions in the Constitution to allow the Senate to ratify the
Philippine concurrence in the WTO Agreement. And we hold that there are.
 WTO Recognizes Need to Protect Weak Economies
o Unlike in the UN where major states have permanent seats and veto
powers in the Security Council, in the WTO, decisions are made on
the basis of sovereign equality, with each member’s vote equal in
weight.
 Specific WTO Provisos Protect Developing Countries
o Tariff reduction – developed countries must reduce at rate of 36% in 6
years, developing 24% in 10 years
o Domestic subsidy – developed countries must reduce 20% over six (6)
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 PUBLIC INTERNATIONAL LAW | derF Notes
years, developing countries at 13% in 10 years
o Export subsidy – developed countries, 36% in 6 years; developing
countries, 3/4ths of 36% in 10 years.

 Constitution Does Not Rule Out Foreign Competition

o Encourages industries that are competitive in both domestic and
foreign markets
 The Court will not pass upon the advantages and disadvantages of trade
liberalization as an economic policy. It will only perform its constitutional duty
of determining whether the Senate committed grave abuse of discretion.

ISSUE 2:
Does the text of the WTO and its Annexes limit, restrict or impair the exercise of legislative
power by Congress? – NO.

RULING:
 A portion of sovereignty may be waived without violating the Constitution.
 While sovereignty has traditionally been deemed absolute and all-
encompassing on the domestic level, it is however subject to restrictions and
limitations voluntarily agreed to by the Philippines, expressly or impliedly, as a
member of the family of nations.
 The sovereignty of a state therefore cannot in fact and in reality be considered
absolute. Certain restrictions enter into the picture: limitations imposed by the
nature of membership in the family of nations & limitations imposed by treaty
stipulations.

DISPUTE RESOLUTION
- Established by the WTO agreement.
- Consists of General Council of the WTO.
- Operates under the Understanding on Rules and Procedures Governing the
Settlement of Disputes 1994.
a. Each state has a right to establish a panel.
b. It provided for a permanent appellate body consisting of
persons with recognized expertise in law.

EXPANDING SCOPE OF INTERNATIONAL ECONOMIC LAW

- Uruguay Round of 1994 expanded the scope of the multilateral trade regime.
It includes:
a. Intellectual property
b. Services
c. Sanitary and physio sanitary
d. Investment
e. Strengthening the rules on subsidies, countervailing duties, and
anti-dumping

- IEL affects the sovereignty of States and their capacity to give force to
national policy objectives.

~oOo~

IN GOD WE TRUST
WE SHALL PASS 

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