HN Notes Public International Law – Atty.

Alcantara 1

International Law Reviewer

CHAPTER ONE: GENERAL PRINCIPLES Ware v. Hylton
International law When the US declared their independence,
– body of legal rules which apply between they were bound to receive the law of nations
sovereign states and such other entities as in its modern state of purity and refinement
have been granted international
personality Paquete Habana Case (175 U.S. 677)
– intercourse of nations rather than states International law is a part of our law and must
– “the law of nations” be ascertained and administered by the courts
of justice of appropriate jurisdiction as often as
Divisions of International Law questions of rights depending upon it are
LAWS OF PEACE – govern the normal relations of states presented for determination
LAWS OF WAR – govern when war breaks out between
or among the states Doctrine of Incorporation (majority view)– affirming their
v Those states not involved in the war recognition of the principles of International Law in their
continue to be regulated under the laws constitutions
of peace Ex. Austria, Germany, Korea and the Philippines
LAWS OF NEUTRALITY – govern the relations between the
belligerents and the states not part of the war
Article II, Sec. 2 of the 1987 Constitution
INTERNATIONAL LAW MUNICIPAL LAW The Philippines renounces war as an instrument
Not imposed upon but issued by a political of national policy, adopts the generally
simply adopted by states superior for observance accepted principles of international law as
as a common rule of by those under its part of the law of the land and adheres to the
action among authority policy of peace, equality, justice, freedom,
themselves cooperation, and amity with all nations.
Not derived from any Enactments from the
particular legislation, but lawmaking authority Doctrine of Transformation (minority view) – only upon
from conventions from each states legislation will they become binding as part of the
AS TO SUBJECTS municipal law
Relation of states individuals
Art. VII, Sec. 21 of the 1987 Constitution
WHEN THERE IS A VIOLATION
Redressed through state- Administrative and
No treaty or international agreement shall be
to-state transactions (ex. judicial process
valid and effective unless concurred in by at
Negotiations, arbitrations)
least two- thirds of all members of the senate.
RESPONSIBILITY IN CASE OF BREACH
Collective responsibility Individual responsibility
Kuroda v. Jalandoni
FACTS:
Instances where municipal law may become part of
international law:
Kuroda was a Japanese general stationed in the
o Treaty
Philippines. He was being prosecuted for committing
o Conventions
atrocities during World War II pursuant to the Geneva
Convention. He interposed the defense that he cannot
ex. Hague Conventions of 1899 and 1907
be tried because there is no Philippine law punishing war
relating to personal statues
crimes and the Philippines was not a signatory to the said
Geneva Convention of 1930 on bills of
convention.
exchange

ISSUE: W/N Kuroda can be tried in the Philippines.

It is a universally accepted postulate that, without or
without express declaration to this effect, states admitted
to the family of nations are bound by the rules prescribed
by it for the regulation of international intercourse.
HELD: Yes, pursuant to the doctrine of incorporation. It
cannot be denied that the rules and regulations of The
Hague and Geneva Conventions form part of Philippine
law since it is wholly based on the generally accepted
principles of international law. In fact these rules and

Source: International Law (2003 Edition) by Justice Isagani A. Cruz

HN Notes Public International Law – Atty. Alcantara
principles were accepted by the two belligerent nations,
the United States and Japan, who were signatories to
the convention. Such rules and principles, therefore,
form part of the law of our nation even if the Philippines
was not a signatory to the convention embodying them,
for our constitution has been deliberately general and
extensive in its scope and is not confined to the
recognition of rules and principles of international law as
contained in treaties to which our government may
have been or shall be a signatory.
In case of conflict, the basic rule would be to attempt to
reconcile the apparent contradiction to give effect to
both systems of law.
Co Kim Chan v. Valdez Tan Keh
FACTS:
The respondent judge refused to take cognizance of the
case and to continue the proceedings in petitioner’s
case on the ground that the proclamation issued on
October 23, 1944 by General Douglas MacArthur had
invalidated and nullified all judicial proceedings and
judgments of court during the Japanese occupation.
Respondent contends that the lower courts have no
jurisdiction to continue pending judicial proceedings
and that the government established during the
Japanese occupation was no de facto government.
ISSUE:
1. Do the judicial acts and proceedings of the court
during the Japanese occupation remain good and
valid?
2. Did the proclamation of MacArthur invalidated all
judgments and judicial acts and proceedings of said
court?
3. May the present courts continue those proceedings
pending in said courts?
HELD:
It is evident that the Philippine Executive Commission
was a civil government established by military forces
and thus a de facto government of the second kind.
Legislative, as well as judicial, acts of de facto
governments, which are not of political complexion,
remain valid after reoccupation. It is presumed that the
proclamation of General MacArthur did not specifically
refer to judicial processes thus it has not invalidated all
the judgments and proceedings of the courts during the
Japanese regime. The existence of the courts depend
upon the laws which create and confer upon them their
jurisdiction. Such laws, not political in nature, are not
abrogated by a change of sovereignty and continue in
force until repealed by legislative acts. It is thus obvious
that the present courts have jurisdiction to continue
proceedings in cases not of political complexion.
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
2
Lord Mansfield in Triquet v. Bath
“the law of nations, in its full extent,” was part of the law
of England
PACTA SUNT SERVANDA
Ø Pacts are to be complied with in good faith.
Ø Once a state had entered into a pact with
other states, both must comply with the pact in
good faith. Breach of such pact may cause
hostile relation between both states. It can also
be a ground for a sanction under the United
Nation‘s Charter.
Ichong v. Hernadez
The Retail Trade Nationalization law was challenged on
the ground inter alia, that it violated the Treaty of Amity
between PH and China, the United Nations Charter and
the UNDHR. It was held that,
“But even assuming that the law infringes upon such
treaty, the treaty is always subject to qualification of
subsequent amendment, and the same may never
curtail of restrict the scope of the police power.”
BASIS OF INTERNATIONAL LAW
Law of Nature- There is a natural and universal principle
of right and wrong, independent of any mutual
intercourse or compact.
Positivist Theory- The binding force of international law is
derived from the agreement of sovereign states to be
bound by it. It is not a law of subordination but of
coordination.
Eclectic Theory- Proposes that both the law of nature
and the consent of States serve as basis of international
law; to the effect that the system of international law is
based on the dictate of right reason as well as the
practice of states.
States observes Public International Law because of
their:
1. Belief in the reasonableness of the Law of
Nations.
2. Fear of being unconventional. 

3. Fear of reprisal from other states. 

FUNCTIONS OF PUBLIC INTERNATIONAL LAW
A. The maintenance of international peace and
HN Notes Public International Law – Atty. Alcantara
order;
B. 
The protection of State rights and
fundamental human rights thru sanctions, both
peaceful and coercive;
 Requisites/Elements of International Custom
C. The economic, social, cultural and
technological development of states and such
other entities as may be possessed of an
international personality.
CHAPTER 2: SOURCES OF INTERNATIONAL LAW
Article 38, Statute of the ICJ
1. The Court, whose function is to decide in accordance
with international law such disputes as are submitted to
it, shall apply:
a) international conventions, whether
general or particular, establishing rules
expressly recognized by the contesting
states;
b) international custom, as evidence of a
general practice accepted as law;
c) the general principles of law recognized
by civilized nations;
d) subject to the provisions of Article 59,
judicial decisions and the teachings of the
most highly qualified publicists of the
various nations, as subsidiary means for the
determination of rules of law.
2. This provision shall not prejudice the power of the
Court to decide a case ex aequo et bono, if the parties
agree thereto.
A. Primary Sources
Treaties- The general rule is that for a treaty to be
considered a direct source of international law, it must
be concluded by sizable number of states and thus
reflect the will or at least the consensus of the family of
nations.
Except: If the treaty was not concluded by great body
of states, such as bilateral treaties. But a bilateral treaty
is binding between the parties especially if a dispute
arose between them.
Custom- A practice which has grown up between states
and has come to be accepted as binding by the mere
fact of persistent usage over a long period of time.
Custom is distinguished from usage. The latter while also
a long established way of doing things by states is not
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
3
coupled with the conviction that it is obligatory and
of right.
1. Duration or long state practice.

2. Consistency of the state practice or the
widespread repetition by states of similar
international acts over time.

3. Generality of the state practice or that the acts
are taken by a significant number of states and
not rejected by a significant number of states.
4. Opinio juris sive necessitates or the
requirement that the acts must occur out of a
sense of obligation.
General Principles of Law - Mostly derived from the law
of nature and are observed by the majority of states
because they are believed to be good and just (ex.
prescription, estoppel, consent, res judicata and pacta
sunt servanda).
B. Secondary Sources
These sources are not authorities in deciding a case but
only have a persuasive effect because it only shows the
interpretation of a state to a particular international law.
1. Decisions of international tribunals

2. Writings and teachings of the most highly
qualified publicists
CHAPTER 3: THE INTERNATIONAL COMMUNITY
INTERNATIONAL COMMUNITY - the body of juridical
entities which are governed by law of nation.
Modern concept - it is composed not only of states but
also of such other international persons.
SUBJECT V. OBJECT
SUBJECT OBJECT
Entity that has rights and Person or thing in
responsibilities under that respect of which rights
law. areheld and obligations
It has an international assumed by the subject.
personality in that it can
directly assert rights and
be held directly
responsible under the law
of nations.
State - A group of people living together in a definite
territory under the independent government organized
HN Notes Public International Law – Atty. Alcantara
for political ends and capable of entering into
international relations.
The state is a legal concept; nation is only a racial or
ethnic concept.
ELEMENTS:
1. A permanent population - of human beings
living in its territory
2. Defined territory- fixed portion of thesurface
of the earth in which the people of the state
reside
3. Government – the agency through which
the will of the state is formulated, expressed
and realized.
4. Sovereignty or independence- external
aspect or manifestation of sovereignty, that is,
the power of the state to direct its own external
affairs without interference or dictation from
other states.
CLASSIFICATION OF STATES
v INDEPENDENT STATES - one which is not subject
to dictation from others in this respect
a. Simple States- one which is placed under a
single and centralized government exercising
power over both its internal and external affairs
b. Composites States- two or more states, each
with its own separate government but bound
under a central authority exercising, to a
greater or less degree, control over their
external relations.
1. Real union - created when two or more states are
merged under a unified authority so that they form a
single international person through which they act as
one entity.
2. Federal union- is a combination of two or more
sovereign states which upon merger cease to be states,
resulting in the creation of a new state with full
international personality to represent them in their
external relations as well as a certain degree of power
over their domestic affairs and their inhabitants. (ex. The
United States of America)
3. Confederation – an organization of states which retain
their internal sovereignty and, to some degree, their
external sovereignty, while delegating to the collective
body power to represent them as a whole for certain
limited and specified purposes.
4. Personal union - comes into being when two or more
independent states are brought together under the rule
of the same monarch, who nevertheless does not
become one international persons for the purpose of
representing any or all of them.
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
4
5. Incorporate union- two or more states under a central
authority empowered to direct both their external and
internal affairs and possessed of a separate international
personality.
v NEUTRALIZED STATES An independent state,
whether it be simple or composite, may be
neutralized through the agreement with other
states by virtue of which the latter will
guarantee its integrity and independence
provided it refrains from taking any act that will
involve it in war or other hostile activity except
for defensive purposes.
v DEPENDENT STATES - an entity which, although
theoretically a state, does not have full
freedom in the direction of its external affairs. It
fall into two general categories:
a. Protectorate- which is established at
the request of the weaker state for the
protection by string power
b. Suzerainty- which is a result of a
concession from a states to a former
colony that is allowed to be
independent subject to the retention
by the former sovereign of certain
power over the external affairs of the
latter.
v UNITED NATIONS – not a state or a super state
but a mere organization of states, it is regarded
as an international person for certain purposes.
v THE VATICAN CITY
The Holy See has all the constituent elements of
statehood (People, Territory: 108.7 acres; Government
with the Pope as head; and Independence by virtue of
the Lateran Treaty of February 11,1929, which constitutes
the Vatican as a territory under the sovereignty of the
Holy See.
It has all the right of a state, including diplomatic
intercourse, immunity from foreign jurisdiction.
v COLONIES AND DEPENDENCIES - is part and
parcel of the parent state, through which all its
external relations are transacted with other
states. As such, therefore, it has no legal
standing in the family of nations. Nevertheless,
such entities have been allowed on occasion
to participate in their own right in international
undertaking and granted practically the status
of a sovereign state.
HN Notes Public International Law – Atty. Alcantara 5

v MANDATES AND TRUST TERRITORIES - the system CHAPTER 4: UNITED NATIONS

of mandates was established after the World
War I in order to avoid outright annexation of
the underdeveloped territories taken from the
defeated powers and to place their
administration under some forms of
international supervision.
Kinds of trust territories:
1. Those held under the mandate under the League
of Nations;
2. Those territories detached from the defeated
states after WWII;
3. Those voluntarily placed under the system by the
states responsible for their administration.
v BELLIGERENT COMMUNITIES - when a portion of
the population rises up in arms against the
legitimate government of the states. The
upheaval is ordinarily regarded as a merely
internal affair, at least during its initial stages.
- The state is held responsible for all injuries caused upon
third states.
- For the purpose of the conflict, and pending
determination of whether or not the belligerent
community should fully recognized as a state, it is
treated as an international persons and becomes
directly subjects to the laws of war and neutrality.
Aim of United Nations
þ Emerged out of the travail of WWII as a symbol of
man’s undismayed determination to establish for
all nations a rule of law that would forever banish
the terrible arbitrament of war in the solution of
international disputes.
þ Envisioned as the answer to the universal yearning
for peace and friendship among all peoples
regardless of color and creed
History of United Nations
¹ This idea was not a new concept –– but was only
after WWI that the first concrete step was taken
with the organization of the League of Nations ––
which unfortunately later formally dissolved
¹ Please see timeline
¹ The result was the creation of body possessed not
only of juridical but also of international
personality and vested with prerogatives normally
pertaining only to sovereign states. While not a
state or super state –– granted among others,
powers as to enable it to send and receive
diplomatic agents, conclude treaties and govern
territories

Inchoative state - it is vested with full rights of visitation,

search and seizure of contraband articles on high seas,
blockade and the like.

v INTERNATIONAL ADMINISTRATIVE BODIES –

created by agreement among states may be
vested with international personality when two
conditions concur, to wit, that their purposes
are mainly non-political and that they are
autonomous. (Examples: WHO, International
Labor Organization, International Monetary
Fund, Food and Agricultural Organization

v INDIVIDUALS - Individual only as an object of

international law who can act only through the
instrumentality of his own state in matters
involving others states.

Source: International Law (2003 Edition) by Justice Isagani A. Cruz

HN Notes Public International Law – Atty. Alcantara
UN Charter
Members of the British Commonwealth
and a number of government-in-exile had
already agreed in the London Declaration
“to work together and with other peoples, in
¹June 12,
war and in peace” toward economic and
1941 social progress
President Franklin Roosevelt and Prime
Minister Winston Churchill signed the Atlantic
Charter for a “peace which will afford to all
nations the means of dwelling in safety within
¹August 14, their own boundaries and which will afford
1941 assurance that all men in all lands may lead
out their lives in freedom from fear and
want.”
Reaffirmed this principle in the Declaration by
United Nations, signed by 26 countries and
¹January 1, later adhered by 21 others.
1942
First formal step to UN, the Moscow
Declaration signed by representatives of
China, Soviet Union, UK and US which
recognized “the necessity of establishing at
the earliest practicable date a general
international organization based on the
¹October principle of sovereign equality of all peace-
30, 1943 loving states and open membership by all
such states, large and small, for the
maintenance of international peace and
security.”
Teheran Conference wherein
Roosevelt, Churchill and Stalin
acknowledged “the supreme responsibility
resting upon us and all the UN to make a
¹Same year peace which will command the goodwill of
(1943) the overwhelming mass of the people of the
world and banish the scourge and terror of
war for many generations.”
• The initial blueprint of the Organization
known as the Dumbarton Oaks Proposal was
prepared at a conference in Washington by
¹August –– representatives of US, USSR and UK and later
October of joined by China.
1944
Preamble
• The voting rules in the organ were
agreed upon by Roosevelt, Churchill and
Stalin at the Yalta Conference
¹February
11, 1945
• Delegates of 50 nations met at San
Francisco Conference and approved the
¹April 25 –– Charter of United Nations
June 26,
1945
•Charter of United Nations came into force
¹October
24, 1945
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
6
1) Consisting of 11 articles besides Preamble and
concluding provisions
2) Includes Statute of ICJ which is annexed as an
integral part of it
3) Considered as:
TREATY CONSTITUTION
Because it derives
its binding force In so far as it provides for the
from the organization and operations
agreement of the of different organs of UN
parties to it and for the adoption of any
change in its provisions thru
amendment
4) Intended to apply not only to members of the
organization but also to non-member states “so
far as necessary for the maintenance of the
international peace and security.”
How amendments to the charter are made?
• Proposed by 2/3 votes of the conference
• Adopted by 2/3 of members of the General
Assembly
• Ratified in accordance with their respective
constitutional processes by 2/3 of UN members,
including permanent members
How is a general conference is called for the purpose
of reviewing the charter?
• By majority of vote of General Assembly; AND
• Any nine (9) members of the Security Council
5) Common intentions that moved original members
to unite their will and efforts
WE THE PEOPLES OF THE UNITED NATIONS DETERMINED
´ to save succeeding generations from the
scourge of war, which twice in our lifetime has
brought untold sorrow to mankind, and
´ to reaffirm faith in fundamental human rights,
in the dignity and worth of the human person,
in the equal rights of men and women and of
nations large and small, and
´ to establish conditions under which justice and
respect for the obligations arising from treaties
and other sources of international law can be
maintained, and
´ to promote social progress and better
standards of life in larger freedom,
AND FOR THESE ENDS
HN Notes Public International Law – Atty. Alcantara
´ to practice tolerance and live together in
peace with one another as good neighbors,
and
´ to unite our strength to maintain international
peace and security, and
´ to ensure, by the acceptance of principles
and the institution of methods, that armed
force shall not be used, save in the common
interest, and
´ to employ international machinery for the
promotion of the economic and social
advancement of all peoples,
HAVE RESOLVED TO COMBINE OUR EFFORTS TO
ACCOMPLISH THESE AIMS
Accordingly, our respective Governments,
through representatives assembled in the city of San
Francisco, who have exhibited their full powers found
to be in good and due form, have agreed to the
present Charter of the United Nations and do hereby
establish an international organization to be known as
the United Nations.
Purpose (Article 1)
1. To maintain international peace and security, and
to that end: to take effective collective measures
for the prevention and removal of threats to the
peace, and for the suppression of acts of
aggression or other breaches of the peace, and
to bring about by peaceful means, and in
conformity with the principles of justice and
international law, adjustment or settlement of
international disputes or situations which might
lead to a breach of the peace;
2. To develop friendly relations among nations
based on respect for the principle of equal rights
and self-determination of peoples, and to take
other appropriate measures to strengthen
universal peace;
3. To achieve international co-operation in solving
international problems of an economic, social,
cultural, or humanitarian character, and in
promoting and encouraging respect for human
rights and for fundamental freedoms for all
without distinction as to race, sex, language, or
religion; and
4. To be a center for harmonizing the actions of
nations in the attainment of these common ends.
Principles
1) The Organization is based on the principle of the
sovereign equality of all its Members.
o For example, all members have the same
vote in the General Assembly
o Certain special rights are however
reserved to the so-called Big Five; on the
other hand, the smaller states are not
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
7
subjected to the same financial
responsibilities as the affluent members
2) All Members, in order to ensure to all of them the
rights and benefits resulting from membership, shall
fulfil in good faith the obligations assumed by them
in accordance with the present Charter.
o Basis: “Pacta Sunt Servanda” –– calls for
the observance of treaties in good faith
3) All Members shall settle their international disputes
by peaceful means in such a manner that
international peace and security, and justice, are
not endangered.
o More common amicable methods of
settling disputes include the active
participation of, principally, the ICJ and
Security Council and sometimes even
General Assembly
4) 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.
o Most important principle
o Prohibits the threat or force upon the
territorial integrity or political
independence of any member of the UN
5) All Members shall give the United Nations every
assistance in any action it takes in accordance with
the present Charter, and shall refrain from giving
assistance to any state against which the United
Nations is taking preventive or enforcement action.
o The efficacy of the UN will depend upon
the cooperation extended to it by the
member-states
6) The Organization shall ensure that states which are
not Members of the United Nations act in
accordance with these Principles so far as may be
necessary for the maintenance of international
peace and security.
o Treaties are usually binding only on the
signatories
o However, even non-members are
covered by the obligations imposed by
the Charter for the maintenance of
international peace and security
7) 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 Vll.
o Common known as “domestic jurisdiction
clause” –– as long as the matter remain
internal, the same cannot be the subject
of intervention by UN.
GENERAL RULE: A rebellion ordinarily cannot
come under the jurisdiction of the organization;
EXCEPTIONS:
i. Aggravates into a threat to or an actual
breach of international peace and
security; or
ii. Where parties voluntarily invoke and
submit to the jurisdiction of UN for
settlement
HN Notes Public International Law – Atty. Alcantara 8

Membership (b) Prevented from being elected in the SC, ESC or TC

(c) Nationals of the suspended state may however
continue serving I the Secretariat and in the ICJ as
they are regarded as officials or civil servants of
the organization
Kinds of UN
Members (d) Member state is still subject to discharge of its
obligations under the Charter (e.g. payment of its
financial contributions)
1.ORIGINA
L/ 1.ELECTIVE Expulsion of Members
CHARTER WHY: To provide for a stronger penalty than mere
suspsnsion against a member that would have
demonstarated that it did not satisfy the basic
a.Those a.Having a.upon requirement of memnership and would be like a
states which a.Admitte
previously the cancerous growth which it would be better to remove
having d by
signed the favorable
participated decision of
recomme
comepletely than to allow to remain in the organization.
Declaration the
in the UN by UN which ndation of HOW: 2/3 of those present and voting in the GA upon
Conference General
signed and Assembly;
the the recommendation of the SC by a majority vote.
at San ratified the Security
Francisco; AND
Charter of UN Council
OR Withdrawal of Members
š No provision was included in the Charter as not to
encourage successive withdrawals that would
weaken the organization
š Nevertheless, a member can withdraw from UN if:
It must a) Organization was revealed to be unable
be a to maintain peace and or could do so only
state
at the expense of law and justice;
b) Member’s rights and obligations ad such
It must be
It must were changed by the Charter
willing to
be amendment which it had not concurred;
carry out
peace-
these Qualifications for
loving
c) An amendment is not ratified which is duly
obligations an applicant state accepted by the necessary majority
to be eligible for
admission
either in the GA or in a general
conference.

It must be It must Organs of the UN

able to accept the
carry out obligations 1.General Assembly
these of the
obligations Charter

1.Security Council
Query: Can the GA admit an applicant for membership
without the favorable recommendation of the Security
Council? 1.Economic and
Answer: NO. Article 4, paragraph 2 requires two things to Social Council
effect admission: (1) a recommendation of the SC; and Principal Organs
(2) the decision of the GA. It is in the nature of things that 1.Trusteeship
recommendation should come before the decision –– Council
the word “recommendation” and the word “upon”
preceding it, imply the idea that the recommendation is
the foundation of the decision to admit and that the 1.International
latter rests upon the recommendation. Both of these are Court of Justice
indispensable to form the judgement of the organization
1.Secretariat
Suspension of Members
WHY: A member against which preventive or
enforcement action has been taken by the SC may be
suspended from the exercise of rights and privileges.
HOW: 2/3 of those present and voting in the GA upon the Which have Subsidiary
been created Organs
favorable recommendation of at least 9 members of SC
including the permanent members by the Charter
1.Military 1.Internation 1.Comissio
HOW IS IT LIFTED: Qualified majority vote of SC Staff n on
al Law
WHAT ARE ITS EFFECTS: Committee Commission Human
(a) Prevented from participating in the meetings of Rights
the General Assembly

Source: International Law (2003 Edition) by Justice Isagani A. Cruz

HN Notes Public International Law – Atty. Alcantara 9

(b) Security Council

Not part of the ⎯ Key organ in the maintenance of peace and
UN but are Specialized security
brought into Agencies ⎯ Consists of 5 permanent members and 10
close contact elective members
with it because 1.World 1.Internatio Technical
of their Health nal Assistance ⎯"Big Five" ⎯Other members
purposes and Organizatio Monetary Board
functions n Fund

i.China i.African and Asian States – 5

(a) General Assembly i.France i.Latin American States – 2

⎯ Most representative of the organs of the UN
⎯ Consists of all the members of the organization;
each entittled to send 5 represenatatives and 5
alternates as well as technical taff as they may
need
⎯ Regular annual session: beginning on the third
Tuesday of September
⎯ Special session:
(a) at the call of majority of the members
(b) at the request of the Security Council
How are matters decided by GA?
´ For “Important questions”
š 2/3 of those present and voting
š Matters concerning international peace and
security, election, admission, suspension,
budget, etc.
´ “Other matters”
š Majority of those present and voting
Functions of GA
1. Deliberative
Ü Such as initiating studies and making
recommendations toward the progressive
development of international law and its
codification and recommending
measures for the peaceful adjustment of
any situation which deems likely to impair
general welfare or friendly relations
among nations
2. Supervisory
Ü Such as receiving and considering annual
and special reports from the other organs
of the UN, making recommendations for
the coordination of various functions and
approving trusteeship agreements in non-
i.Western European
i.UK
States – 2
i.Russia i.Eastern European
States – 1
i.US
⎯ Supposed to be so organized as to be able to
function continuously and that all members be
represented at all times at the seat of the
organization
⎯ Chairmainship is rotated every calendar month
on the basis of English alphabetical order of the
names of the members
Rules on Voting
⎯ Governed by the Yalta formula as devised at
the Crimea Conference and subsequently
incorporated in Article 27 of the Charter
⎯ Purpose of Yalta formula: ensure the inty of the
permanent members in the measures to be
taken in the pursuit of its primary function of
maintaining international peace and security
⎯ Each member shall have one vote but
distinction is made between the Big Five and
non-permanent members in the resolution of
substantive questions.
⎯ For procedural matters: To be decided by
affirmative vote of any nine or more members.
⎯ For non-procedural matters: concurrence of at
least 9 members but including all permanent
members.
⎯ A member shall NOT be allowed to vote on
questions concerning the pacific settlement of
a dispute to which it is a party.
Ø(a) Include Ø(a) Those that may
Procedural Matters

Non-Procedural Matters

strategic areas questions relating to require the SC under

3. Financial the organization and its responsibility of
Ü Such as consideration and approval of meetings of the SC; maintaining or
the budget of the organization, Ø(b) The restoring world peace
apportionment of expenses among its establishment of to invoke measures of
members and financial arrangements subsidiary organs; enforcement
with specialized agencies Ø(c) Participation of Ø(b) Characterization
4. Elective states parties to a of a question
Ü Such as election of the non-permanent dispute in the (whether one is
members of the SC, all the members of the discussions of the procedural or not) is
organ non-procedural
ESC and some members of TC, as well as,
in concurrence with the SC, the Secretary-
General and judges of ICJ
5. Constituent
Ü Such as admission of members and “Veto” –– prevents agreement on a non-procedural
amendment of the Charter of the UN question even if it is supported by all other members

Source: International Law (2003 Edition) by Justice Isagani A. Cruz

HN Notes Public International Law – Atty. Alcantara 10

“Double Veto” –– can disapprove any proposal to ⎯ All members are ipso facto parties to the
consider a question merely procedural and thereafter statute; nevertheless a non-member may
vote against the question itself on the merits become a pary on conditions to be
determined in each case by the GA upon
(c) Economic and Social Council recommendation of SC
⎯ Originally consisted of only 18 members but the
body was enlarged to 27 by the the Composition
amendment adopted in 1965 and further ⎯ 15 members who are elected by absolute
expanded to 52 in 1971. majority in GA and SC
⎯ Members are elected by the GA for 3-year terms ⎯ Shall elect a President and a Vice-President
and may be elected immediately (staggered)
⎯ Regular session: as required in its rules
⎯ Special session: at the request of the majority of
its members
⎯ Voting: every member has one vote and
reached by majority of those present and voting
⎯ It is the responsibility of ESC and GA to exert ⎯Posess qualifications
efforts toward: required in their
(a) Higher standards of living, full employment and respective countries for
appointment to their
conditions of economic and social progress and highest judicial offices
development; or may be juriconsults
(b) Solutions of international economic, social, of recognized
health and related problems and international, competence in
international law
cultural and educational coopration;
(c) Universal respect for and observance of human
rights and fundamental freedoms for all without
distinctionss as to race, sex, language or religion
⎯ Assisted by certain subsidiary organs and may
also collaborate and enter into agreements, ⎯Must be
subject to the approval of the GA, with of high
specialized agencies. moral Qualifications
character;

(d) Trusteeship Council

⎯ Charged with duty of assisting SC and GA in the
administration of the international trusteeship
system
⎯ HAS LARGELY BECOME OBSOLETE
⎯ Regular session: as required in its rules Qualifications
⎯ Special session: at the request of the majority of ⎯ Must be of high moral character;
its members ⎯ Posess qualifications required in their
⎯ Voting: every member has one vote and respective countries for appointment to their
reached by majority of those present and voting highest judicial offices;
⎯ May be juriconsults of recognized
competence in international law
Members of
the UN Prohibition
administering
trust ⎯ No two nationals of them may be nationals of
territories the same state
⎯ In case this occurs according to majority votes,
only the eldest shall be considered elected.

Term
⎯ Nine (9) years
⎯ May be re-elected
Composition ⎯ Staggered as to provide for the election of 1/3
of the membership at 3-year intervals

Permanent Removal
Many other
members of
members ⎯ Requires a unanimous opinion of the other
the SC not
elected for 3-
year term by
administering members
trust ⎯ In the belief that he has ceased to fulfill the
GA
territories
required conditions

Arbitrations and Decision-making

(e) International Court of Justice ⎯ Decide contentious cases and render advisory
⎯ Judicial organ opinions

Source: International Law (2003 Edition) by Justice Isagani A. Cruz

HN Notes Public International Law – Atty. Alcantara
⎯ May meet en banc or in chambers composed
of 3 or more judges to deal with particular
categories of cases such as those relating to
labor, transit and communications
⎯ Questions are decided by a majority of the
judges present
⎯ Quorum when full Court is sitting: nine (9)
⎯ Jurisdiction is based on consent of the parties
as manifested under the “optional jurisdiction
clause” of Article 36
⎯ Advisory opinions may be given upon request
of the GA or SC, as well as organs of UN when
authorized by GA on legal questions arising
withi scope of their activities
(f) Secretariat
⎯ Chief administrative organ of the UN
⎯ Headed by Secretary-General
Functions of the Secretary-General
V Generally, coordinates its vast adminstrative
machinery
V Acts as secretary in all meetings of the General
Assembly, Security Council and the Economic
and Social Council
V He prepares budget of the UN for submission to
General Assembly
V Provides technical facilities to the different organs
of the organization
Furthermore, the Secretary-General is:
Chosen by the GA upon
recommendation of the SC with a
fixed term of 5 years
Highest Represative of UN and
authorized to act in its behalf
Of great significance is his duty to
bring to the attentio of the SC any
matter which in his opinion may
threaten international peace and
security
Solely responsible to the
organization including his staff and
are prohibited from receiving any
instruction from any other state or
body
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
11
CHAPTER 5: THE CONCEPT OF THE STATE
Creation of States
1. Revolution
2. Unification
3. Secession
4. Assertion of Independence
5. Agreement
6. Attainment of civilization
Principle of State Continuity
Ü The state continues as juristic being
notwithstanding changes in its circumstances,
provided only that they do not result in loss of
any of its essential elements.
Ü This principle applied in the Sapphire case
where, after Emperor Louis napoleon filed a
damage suit on behalf of France in an
American court, he was deposed. Nonetheless,
the action was not abated and could continue
upon recognition of the duly authorized
representative of the new government of
France.
& Excerpt: “The next question is whether the
suit has become abated by the recent
deposition of the Emperor Napoleon. We
think it has not. The reigning sovereign
represents the national sovereignty, and
that sovereignty is continuous and
perpetual, residing in the proper successors
of the sovereign for the time being.
Napoleon was the owner of
the Euryale, not as an individual but as
sovereign of France. This is substantially
averred in the libel. On his deposition the
sovereignty does not change, but merely
the person or persons in whom it resides.
The foreign state is the true and real owner
of its public vessels of war. The reigning
Emperor or national assembly or other
actual person or party in power is but the
agent and representative of the national
sovereignty. A change in such
representative works no change in the
national sovereignty or its rights. The next
successor recognized by our government is
competent to carry on a suit already
commenced and receive the fruits of it.”
Extinction of States
1. By extinction or emigration en masse of its
population
2. By loss of territory
3. By overthrowing the government without being
replaced, and resulting in anarchy
4. When a state merges with another state; or
5. When its territory may be dismembered or
annexed by others
Succession of States
š Takes place when one state assumes the rights
and some of the obligations of another
because of certain changes in the condition of
the latter.
HN Notes Public International Law – Atty. Alcantara 12

“Article 256 of the Penal Code is contrary to the genius

and fundamental principles of the American character
Succession of
States and system of government. The gulf which separates this
article from the spirit which inspires all penal legislation of
American origin, is as wide as that which separates a
monarchy from a democratic Republic like that of the
United States. This article was crowded out by
implication as soon as the United States established its
Universal Partial authority in the Philippine Islands. Penalties out of all
succession succession proportion to the gravity of the offense, grounded in a
distorted monarchical conception of the nature of
political authority, as opposed to the American
conception of the protection of the interests of the
public, have been obliterated by the present system of
government in the Islands.

when a state is takes place From an entirely different point of view, it must be noted
annexed to when a portion that this article punishes contempt against executive
another state or of the territory
is totally officials, although its terms are broad enough to cover
of the states or
dismembered the entire official class. Punishment for contempt of non-
is ceded to
or merges with another or judicial officers has no place in a government based
another state to when an upon American principles. Our official class is not, as in
form a new independent monarchies, an agent of some authority greater than
state state becomes the people but it is an agent and servant of the people
a protectorate themselves. These officials are only entitled to respect
or a suzerainty and obedience when they are acting within the scope
or when a of their authority and jurisdiction. The American system
dependent of government is calculated to enforce respect and
state acquires
obedience where such respect and obedience is due,
full sovereignty.
but never does it place around the individual who
happens to occupy an official position by mandate of
the people any official halo, which calls for drastic
punishment for contemptuous remarks.”
Consequences of State Succession
1. Allegiance of the inhabitants of the Succession of the Government
predecessor state in the territory affected is ⎯ Where the government replaces another
transferred to the successor state. They are either peacefully or by violent methods. In both
also naturalized en masse instances, the integrity of the state is not
2. Political laws of the former are automatically affected; the state continues as the same
abrogated and may be restored only by a international person except only that its lawful
positive act on the part of the new sovereign. representative is changed.
But nonpolitical laws, such as those dealing ⎯ The rights of the predecessor government are
with familiar relations, are deemed continued concerned; they are inherited too by the
unless they are changed by the new sovereign successor government.
or are contrary to the institution of the ⎯ Where the new government was organized by
successor state. virtue of a constitutional reform duly ratified in
3. Treaties of a political and even commercial plebiscite, the obligations of the replaced
nature, as well as treaties of extradition, are government are completely by the former.
also discontinued, except those dealing with ⎯ Where the new government was established
local rights and duties, such as those through violence as by a revolution, it may
establishing easement and servitudes. lawfully reject the purely personal or political
4. All the rights of the predecessor state are obligations of the predecessor government but
inherited by the successor state but this is not NOT contracted by it in the ordinary course of
so where liabilities are concerned. official business.

People vs. Perfecto CHAPTER 6: RECOGNITION

Defendant was prosecuted for having published an
editorial against certain members of the senate in
violation of Article 256 of the Spanish Penal Code which
punished "Any person who, by writing, shall defame,
abuse, or insult any Minister of the Crown or other person
in authority.” In holding that the same was no longer in
force, the SC of the American regime declared that:
Basis Rules
⎯ It is political act and mainly a matter of policy
on the part of each state.
⎯ It is discretionary on the part of the recognizing
authority.
⎯ Even if an entity has already acquired all the
elements of international personality, it does
not automatically mean one is entitled to
membership in family of nations for its

Source: International Law (2003 Edition) by Justice Isagani A. Cruz

HN Notes Public International Law – Atty. Alcantara 13

admission is dependent upon: (1)

acknowledgement of its status by those Recognition of Governments
already in the fold; and (2) their willingness to š free act where one is recognized to be
enter into relations with it as subject to capable of binding the state which they claim
international law to represent and witness their intention to enter
⎯ The legality and wisdom of recognition is not into relations with them
subject to judicial review.
Recognition of States Recognition of
Theories on Recognition Governments
1. Declaratory (majority view) o Carries with it May be withdrawn and
´ merely affirms the pre-existing fact that the recognition of the does not necessarily
entity being recognized already possess government signify the existence of a
the status of an international persons. - o Recognition of state as the government
Political and discretionary states is irrevocable may be that of a mere
2. Constitutive (minority view) colony
´ It is last indispensable element that
converts or constitutes the entity being Kinds of De Facto Government
recognized into an international person. - 1. That which is established by the inhabitants
Mandatory and legal who rise in revolt against and depose the
legitimate regime.
Objects of Recognition 2. That which is established in the course of war
1) Recognition of a State –– held irrevocable and by the invading forces of one belligerent in the
imports the recognition of the government territory of the other belligerent, the
2) Recognition of a Government –– may be government of which is also displaced.
withdrawn and does not necessary signify the 3. That which is established by the inhabitants of
existence of a state as the government may be a state who secede therefrom without
that of a mere colony. overthrowing its government.
3) Recognition of Belligerency –– does not
produce the same effect as the recognition of Landmark Case Doctrines
states and government because the rebels are 1. WILSON/ TOBAR
accorded international personality only in ! It acknowledges a community which is not
connection with the hostilities they are waging.
in law, independent and which does not
therefore fulfil the essential conditions of
Kinds of Recognition
(a) Express –– may be verbal or in writing. It may statehood as an independent state. It is,
be extended through a formal proclamation or accordingly, a recognition which an
announcement, a stipulation in a treaty, a international tribunal declare not only to
letter or telegram, or on the occasion of an constitute a wrong but probably also to be
official call or conference. itself invalid.
(b) Implied –– when the recognizing state enters 2. STIMSON DOCTRINE
into officials intercourse with the new member ! This precludes recognition of any
by exchanging diplomatic representatives with government established as a result of
it. external aggression
3. ESTRADA DOCTRINE
NB: The act constituting recognition shall give a clear ! This refers to dealing or not dealing with the
indication of an intention: government established through a political
i. To treat with the new state as such; upheaval is not a judgement on the
ii. To accept the new government as having legitimacy of the said government
authority to represent the state it purports to
govern and to maintain diplomatic relations Tests for Recognition
with it; In any event, the practice of most states now is to extend
iii. To recognize in the case of insurgent that they recognition to a new government only if it is shown that:
are entitled to exercise belligerent rights (a) Objective Test
þ Government must be able to maintain
control of the administrative machinery
Recognition of States
þ Able to maintain order within the state and
š Free act by which one or more states
repel external aggression
acknowledge the existence on a definite
þ Displays willingness and ability to discharge
territory of a human society politically
its international obligations Subjective Test
organized, independent of any existing state
(b) Subjective Test
and capable of observing the obligations of
þ Employed for the purpose of justifying the
international law
withholding of recognition that is politically
š held irrevocable and imports the recognition of
unacceptable.
the government

Source: International Law (2003 Edition) by Justice Isagani A. Cruz

HN Notes Public International Law – Atty. Alcantara 14

Recognition De Jure Recognition De Facto CHAPTER 7: THE RIGHT OF EXISTENCE AND SELF-DEFENSE
o Relatively o Provisional
permanent o Does not vest title to
Fundamental Rights of the State
o Vests title in the its properties
government to its abroad (1) Right of Existence and Self-Defense
properties abroad o Limited to certain (2) Right of Sovereignty and Independence
o Brings about full juridical relations (3) Right of Equality
diplomatic relations (4) Right of Property and Jurisdiction
(5) Right of Legation or Diplomatic Intercourse
Effects of Recognized of State and Government
1. Full diplomatic relations are established except
RIGHT OF EXISTENCE AND SELF-DEFENSE
where the government is recognized as de
facto o Considered the most comprehensive of the
2. Recognized state/government acquires the attributes of the state
right to sue in courts of recognizing state § Reason: All other rights are supposed
3. Has a right to possession of properties of to flow or be derived from it.
predecessor in the territory of the recognizing o By virtue of this right, the State may take such
state measures, including the use of force, as may
4. All acts of the recognized state or government
be necessary to resist any danger to its
are validated retroactively, preventing the
recognizing state from passing upon their existence.
legality in its own courts § Such action being the exercise of an
inherent right, it does not depend for
Recognition of Belligerency its validity on the previous recognition
š Does NOT produce the same effect as the of the state asserting it or on the
recognition of states and government
consent of other states.
because the rebels are accorded international
o Has been expressly acknowledged in a
personality only in connection with the
hostilities they are waging. number of agreements (e.g. Charter of the
United Nations)
Insurgency Belligerency o The Draft of the Rights and Duties of the State
o Initial stage of o More serious and also acknowledges such right. It states that
belligerency widespread “every State has the right on individual or
o Directed by military o Under a civil collective self-defense.
authorities government
o Usually not o There are rules
recognized regarding Requisites of Right
recognition of
belligerency Article 51
Nothing in the present Charter shall impair the inherent
Requisites of Recognition of Belligerency:
right of individual or collective self-defense if an armed
1. there must be an organized civil
government directing the rebel forces; attack occurs against a Member of the United Nations,
2. the rebels must occupy a substantial until the Security Council has taken measures necessary
portion of the territory of the state; to maintain international peace and security. Measures
3. the conflict between the legitimate taken by Members in the exercise of this right of self-
government and the rebels must be defense shall be immediately reported to the Security
serious, making the outcome uncertain;
Council and shall not in any way affect the authority and
4. The rebels must be willing and able to
observe the laws of war. responsibility of the Security Council under the present
Charter to take at any time such action as it deems
Effects of Recognition: necessary in order to maintain or restore international
(a) Responsibility for acts of rebels resulting to injury peace and security. (Charter of the United Nations)
to nationals of recognizing state shall be shifted
to rebel government;
1. The Presence of an Armed Attack
(b) The legitimate government recognizing the
rebels as belligerents shall observe laws or ñ To justify the exercise of such right, forcible
customs of war in conducting hostilities;
measures may be taken by a state only in face
(c) Third states recognizing belligerency should
of “a necessity of self-defense instant,
maintain neutrality;
(d) Recognition is only provisional and only for overwhelming and leaving no choice of means
purposes of hostilities. and no moment of deliberation.”
r Mere apprehended danger or any
direct threat to the state does not, by
itself alone, warrant the employment

Source: International Law (2003 Edition) by Justice Isagani A. Cruz

HN Notes Public International Law – Atty. Alcantara
by that state of any force against a
suspected or potential enemy.
2. A Clear Showing of Grave and Actual Danger to the
Security of the State
3. The Self-Defensive Measures must be “limited by the
necessity and kept clearly within it.”
µ The idealistic concept, has not received wide support
if the practice of states is any indication.
Grotious’ View
Ü vigorously inveighed against mere anticipation of
aggression as a ground for self-defense
Ü It would appear, however that his view has been
eroded by the more practical consideration that at
times “the best defense is offense.”
US Secretary of War Elihu Root’s View
Ü declared that “It is well understood that the exercise
of the right of self-protection may and frequently does
extend the limits of the territorial jurisdiction of the state
exercising it. The strongest example would be the
mobilization of an army by another power immediately
across the frontier. Every act done by the other power
may be within its territory. Ye the country threatened by
the state of facts is justified in protecting itself by
immediate war.”
& History is replete with instances of the application of
this more pragmatic concept of the right of self-defense.
Example: The mobilization of Russia in 1914
brought about the immediate declaration of
war against it by Germany, which asserted that
its security had been imperiled.
The Cuban Missile Crisis
ñ The quarantine established by the United
States in 1962, during the Cuban missile crisis,
deserves special recollection.
ñ Declaring that “the peace of the world and
the security of the United States (had been)
endangered by reason of the establishment by
the Sino-Soviet powers of an offensive military
capability in Cuba, including bases for ballistic
missiles with a potential range covering most of
North and South America, President Kennedy
interdicted the delivery of offensive weapons
and associate materials to Cuba, subject to
the instructions he issued.
ñ Fortunately, the USSR backed down and thus
averted the outbreak of what would have
been World War III.
Regional Arrangements
† Collective self-defense is recognized not only in Article
51 of the United Nations but also impliedly in Article VII
on Regional Arrangements.
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
15
Article 52, UN Charter
(1) Nothing in the present Charter precludes the
existence of regional arrangements or agencies for
dealing with
such matters relating to the maintenance
of international peace and security as are appropriate
for regional action provided that such arrangements or
agencies and their activities are consistent with the
Purposes and Principles of the United Nations. 

Example of Regional Agency:
§ Organization of American States, whose Organ
of Consultation authorized or ratified the action
taken by the United States in the Cuban Crisis.
§ The NATO may also be cited although it is not
strictly regional because of the participation
therein of the United States, which does not
belong to the same geographical area as the
other members.
The Balance of Power
à This is one of the reasons of regional arrangements.
REGIONAL ARRANGMENTS
à an arrangements of affairs so that no state shall be in
a position to have absolute mastery and dominion over
others.
Examples of Groups motivated by Balance of Power
§ The Congress of Vienna of 1815
§ The Crimean War of 1854
§ The Congress of Berlin of 1878
§ The Triple Alliance
§ Triple Entente before World War I
§ Allied and Axis Powers during World War II
ü Until recently, most of the world was polarized
between the democracies and the communists, each
camp with the potential to destroy the other and the rest
of mankind.
§ The NATO countries were eyeball-to-eyeball
with the Warsaw Pact Countries.
§ The maintenance of this balance of power
contributed in very real way to international
peace although, being an “armed peace,” it
was far from the ideal sought in the articles of
faith of the United Nations.
Aggression Defined
à adopted by the U.N. General Assembly on December
14, 1974
Article 1
Aggression is the use of armed force by a State against
the sovereignty, territorial integrity or political
independence of another State, or in any other manner
inconsistent with the Charter of the United Nations, as set
out in this Definition.
HN Notes Public International Law – Atty. Alcantara
Explanatory note: In this Definition the term "State":
(a) Is used without prejudice to questions of recognition
or to whether a State is a member of the United Nations;
(b) Includes the concept of a "group of States" where
appropriate.
Article 2
The First use of armed force by a State in contravention
of the Charter shall constitute prima facie evidence of
an act of aggression although the Security Council may,
in conformity with the Charter, conclude that a
determination that an act of aggression has been
committed would not be justified in the light of other
relevant circumstances, including the fact that the acts
concerned or their consequences are not of sufficient
gravity.
Article 3
Any of the following acts, regardless of a declaration of
war, shall, subject to and in accordance with the
provisions of article 2, qualify as an act of aggression:
(a) The invasion or attack by the armed forces of a State
of the territory of another State, or any military
occupation, however temporary, resulting from such
invasion or attack, or any annexation by the use of force
of the territory of another State or part thereof,
(b) Bombardment by the armed forces of a State
against the territory of another State or the use of any
weapons by a State against the territory of another
State;
(c) The blockade of the ports or coasts of a State by the
armed forces of another State;
(d) An attack by the armed forces of a State on the land,
sea or air forces, or marine and air fleets of another State;
(e) The use of armed forces of one State which are within
the territory of another State with the agreement of the
receiving State, in contravention of the conditions
provided for in the agreement or any extension of their
presence in such territory beyond the termination of the
agreement;
(f) The action of a State in allowing its temtory, which it
has placed at the disposal of another State, to be used
by that other State for perpetrating an act of aggression
against a third State;
(g) The sending by or on behalf of a State of armed
bands, groups, irregulars or mercenaries, which carry out
acts of armed force against another State of such
gravity as to amount to the acts listed above, or its
substantial involvement therein.
Article 4
The acts enumerated above are not exhaustive and the
Security Council may determine that other acts
constitute aggression under the provisions of the
Charter.
Article 5
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
16
1. No consideration of whatever nature, whether
political, economic, military or otherwise, may serve as a
justification for aggression.
2. A war of aggression is a crime against international
peace. Aggression gives rise to international
responsibility.
3. No territorial acquisition or special advantage resulting
from aggression is or shall be recognized as lawful.
Article 6
Nothing in this Definition shall be construed as in any way
enlarging or diminishing the scope of the Charter,
including its provisions concerning cases in which the use
of force is lawful.
Article 7
Nothing in this Definition, and in particular article 3, could
in any way prejudice the right to self-determination,
freedom and independence, as derived from the
Charter, of peoples forcibly deprived of that right and
referred to in the Declaration on Principles of
International Law concerning Friendly Relations and
Cooperation among States in accordance with the
Charter of the United Nations, particularly peoples under
colonial and racist regimes or other forms of alien
domination: nor the right of these peoples to struggle to
that end and to seek and receive support, in
accordance with the principles of the Charter and in
conformity with the above- mentioned Declaration.
Article 8
In their interpretation and application, the above
provisions are interrelated and each provision should be
construed in the context of the other provisions.
CHAPTER 8: THE RIGHT OF INDEPENDENCE
SOVEREIGNTY
à the supreme, uncontrollable power inherent in a state
by which the state is governed
à It is the supreme power of the State to command and
enforce obedience, the power to which, legally
speaking, all interests are practically subject and all wills
subordinate.
à In international law, it is this attribute that enables the
state to make its own decision vis-à-vis other states and
vests it with competence to enter into relations and
agreements with them.
Two Aspects of Sovereignty
1. Internal Sovereignty
2. External Sovereignty
HN Notes Public International Law – Atty. Alcantara 17

of territories whose peoples have not

yet attained a full measure of self-
it establishes government recognize the principle
its that the interests of the inhabitants of
government these territories are paramount, and
refers to the
power of the accept as a sacred trust the
enact laws
state to obligation to promote to the utmost,
Internal for
directs its observance within the system of international
Sovereignty domestic within its peace and security established by
affairs, as territory, or
when: the present Charter, the well-being of
adopts the inhabitants of these territories,
economic and, to this end:
policies
o b. to develop self-government, to
take due account of the political
aspirations of the peoples, and to
assist them in the progressive
development of their free political
institutions, according to the
particular circumstances of each
territory and its peoples and their
It concludes
varying stages of advancement;
treaties
signifies the
External freedom of Makes war Nature of Independence
Sovereignty the state to of peace, Ö Independence cannot be regarded as importing
(Often control its and
own foreign absolute freedom
referred to as
affairs, as maintains Reason: It only means freedom from control by
Indpendence) diplomatic
when: any other state or group of states and not
and
commercial freedom from the restrictions that are binding
relations on all states forming the family of nations.
Examples:

§ A state may not employ force or even

Idea of Independence
RIGHT TO INDEPENDENCE
à a natural aspiration of peoples that has, albeit only
lately, received international recognition
ý Particularly during the period following the last
World War, a resurgent spirit of nationalism and
the principle of self-determination gave
unprecedented impetus to the attainment of
freedom by a number of colonies and their
subsequent admission to the international
community.
o It may be said that this trend had its
auspicious beginning with the
establishment of the Republic of the
Philippines in 1946 and its ready
recognition by the family nations.
ý The movement toward independence is
expressly by the Declaration Regarding Non-
Self-Governing Territories in Chapter XI of the
Charter of the United Nations.
o Article 73. Members of the United
Nations which have or assume
responsibilities for the administration
the threat of force in its relations with
other states because this is prohibited
by Article 2 of the UN Charter.
§ It may not refuse to observe treaties in
good faith in accordance with the
maxim pacta sunt servanda.
§ The principle of mare liberum will
prevent it from aggregating to itself
the exclusive use of the open seas to
the detriment of other states.
Intervention
† The state must abstain from intervention. The right of
independence carries with it, by necessary implication
the correlative duty of non-intervention.
INTERVENTION
à an act by which a state interferes with the domestic
or foreign affairs of another state or states through the
employment of force or threat of force
Ê Such force may be physical or, in the present
state of world affairs, even political or
economic.
o Lacking such pressure, the
involvement of a state in the affairs of

Source: International Law (2003 Edition) by Justice Isagani A. Cruz

HN Notes Public International Law – Atty. Alcantara
another, even if unsolicited, cannot
be considered intervention.
Ö Intervention is not sanctioned in international
relations.
Exceptions:
1. When it is exercised as an act of self-
defense or
2. When it is decreed by the Security Council
as a preventive or enforcement action for
the maintenance of international peace
and security
3. When such action is agreed upon by a
treaty
4. May also be allowed when requested
from sister states or from the United Nations
by the parties to a dispute or by a state
beset.
ý The United Nations itself categorically binds itself not
“to intervene in matters which are essentially within the
domestic jurisdiction of any state.”, subject to the
exceptions above-mentioned.
L Recent events have called for re-examination of the
law on intervention, especially where intervention is
based on humanitarian grounds.
Example: Somalia, where hundreds of
thousands of civilians, including children and
women were caught in the crossfire of warring
factions that confiscated and appropriated
relief goods intended for the starving
population. Revolted by the inhumane plight
of the innocent victims, the United Nations sent
a contingent of military troops from several
countries, primarily the United Nations, that
brought and distributed food and other kinds
of aid with orders to use force if the distribution
of such goods was interfered with by the
warlords or lawless elements.
The Drago Doctrine
History:
6 In 1902, Great Britain, Italy and Germany established
a blockade against Venezuela in order to force it to
comply with certain contractual and other obligations
owing to the blockading powers.
6 This action was the subject of universal disapprobation
and led to the formulation by the Foreign Minister of
Argentina of what is now popularly known as the Drago
Doctrine.
Concept:
† This doctrine was embodied in The Hague
Convention of 1907.
† It states that “the Contracting Powers agree
not to have recourse to armed force for the
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
18
recovery of contract debts claimed from the
government of one country by the
government of another country as being due
its nationals.”
Porter Resolution
o Dissipated the Drago Doctrine
o In this resolution, intervention was permitted if
the debtor state refused an offer to arbitrate the
creditor’s claim, or having agreed to arbitrate,
prevented agreement on the compromise, or
having agreed thereto, refused to abide by the
award of the arbitrator.
o Nevertheless, it is doubtful if this qualification
can be sustained now in light of the outlawry of
force by the UN Charter.
CHAPTER 9: THE RIGHT OF EQUALITY
Legal Basis or Source of the Right
Article 2, Paragraph 1, Charter of the United Nations
The Organization is based on the principle of the
sovereign equality of all its Members.
Montivideo Convention of 1993
States are juridically equal, enjoy the same rights, and
have equal capacity in their existence. The rights of
each one do not depend upon the power which it
possesses to assure its exercise, but upon the simple fact
of its existence as a person under international law.
Essence of Equality
r Does not signify parity in physical power, political
influence or economic status or prestige
r Does not even require equality in the number of rights
since it is possible for one state to be vested with more
rights than another
e.g. A coastal state like China would have a
right to a territorial sea as distinguished from a
state completely surrounded by land, like
Bolivia of Afghanistan.
† What is meant by the principle of equality, strictly
speaking, is that all the rights of a state, regardless of their
number, must be observed and respected.
N In short, all states, big or small, the powerful as
well as the weak, have an equal right to the
enjoyment of all their respective attributes as
members of the family of nations.
Illustration of the Application of the Right
þ All members of the United Nations have each one
vote in the General Assembly, all votes having equal
HN Notes Public International Law – Atty. Alcantara 19

weight, and are generally eligible for positions in the stakes of the more
various organs of the United Nations. populous states in the
decision of questions
” Every state has the right to protection of its nationals, involving the entire
to make use of the open seas, or to acquire or dispose community of nations.
of territory. Such decisions may
affect the interests, not of
• When involved in war, a small state like the Malagsay individual states as such,
Republic would have the same right as China or the but of the whole of
United States to punish the carriage of contraband or to humanity itself without
have its captured combatants treated as prisoners of distinctions as to color,
war. nationality or creed.

ü Under the rule of par in parem non habet imperium,

even the strongest state cannot assume jurisdiction over
another state, no matter how weak, or question the
validity of its acts in so far as they are made to take
effect within its own territory.
Legal Equality vs. Factual Inequality
Legal Equality
Under the Charter of the
UN, non-procedural
questions are decided
by the Security Council
only with the
concurrence of the Big
Five, any of which may
defeat a proposal
through the exercise of
the veto. This is also true
with respect to the
ratification of any
proposal to amend the
Charter.
Five of the members must
be elected from the
African and Asian States
and only one can come
from the Eastern
European States.
What is declared is that
all states, regardless of
their relative prestige
and power in the
international community,
must be equal in the
enjoyment of whatever
rights they may be
entitled to.
CHAPTER 10: TERRITORY
Article II, 1987 Constitution – The national territory
comprises the Philippine archipelago, with all the islands
and waters embraced therein, and all other territories
over which the Philippines has sovereignty or jurisdiction,
consisting of its terrestrial, fluvial, and aerial domains,
Factual Inequality including its territorial sea, the seabed, the subsoil, the
The Big Five is entitled to insular shelves, and other submarine areas. The waters
permanent membership around, between, and connecting the islands of the
in the organ, in contrast archipelago, regardless of their breadth and dimensions,
with all the other form part of the internal waters of the Philippines.
members, which are
elected for a term of only
Territory
two years and are not
• Fixed portion of the surface of the earth
even eligible for
inhabited by the people of the state
immediate re-election.
• Must be permanent and indicated with
precision because its limits generally define the
jurisdiction of the State
• Big enough to provide for the needs of the
population but should not be so extensive as to
be difficult to administer or defend from
With regard to the
external aggression
elective membership of
the Security Council, not
Right to acquire territory
all states have equal
• One of the fundamental attributes of the State
eligibility therefor, as it is
• Authority to exercise such right may be inferred
provided in the 1965
from the war powers of the Congress and
amendments to the
treaty making power of the President
Charter that such
members are to be
Acquisition and Loss of Territory
distributed, and not
equally at that, among
Acquisition by Loss by
several specified regions.
• Discovery and • Abandonment or
But this rule of equality
Occupation Dereliction
itself sometimes poses
• Prescription • Cession
serious questions of
• Cession • Subjugation
inequality.
• Subjugation • Prescription
• Accretion • Erosion
Reason: It does not take
• Revolution
into account the realities
• Natural causes
of international life,
including the greater

Source: International Law (2003 Edition) by Justice Isagani A. Cruz

HN Notes Public International Law – Atty. Alcantara
(1) Discovery and Occupation
• Original mode of the acquisition by which
territory not belonging to any State (terra nullius
or nobody's land) is placed under the
sovereignty of the discovering State.
• Territory need not be to be uninhabited
provided it can be established that the natives
are not sufficient civilized and can be
considered as possessing not rights of
sovereignty but only rights of habitation
• Open seas and outer space, which are res
communes, are not susceptible to discovery
and occupation
• Examples:
o Philippines in 1521 – inhabitants did
not have a degree of civilization
regarded as sufficient by European
standards
o Colonization of Africa and the
Americas
• Requisites of a valid Discovery and
Occupation:
1. Possession
§ Possession must be claimed on behalf
of the State. It must be effected
through a formal proclamation and
the symbolic act of raising the
national flag in the territory.
§ Mere possession will not suffice, as
only inchoate title of discovery is
acquired by the claimant State.
2. Administration
• Inchoate title of Discovery
o Performs the function of barring other
States from entering the territory until
the lapse of a period within which the
discovering State may establish as
settlement thereon and commence
to administer it.
Island of Palmas Case
• Palmas Island - lies between Mindanao, the
southernmost part of the Philippines, and the
Nanusa Islands, the next-northernmost part of
Indonesia.
• Dispute between United States and Netherlands
• US – right of discovery by Spain; Spain ceded the
territory under the Treaty of Paris on December
10, 1898.
• Netherlands – it had possessed and exercise
sovereignty over the islands since 1677 or even
earlier, by virtue of conventions with the native
princes.
HELD:
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
20
• Discovery alone, without any subsequent act,
cannot at the present time suffice to prove
sovereignty of Island of Palmas.
• An inchoate title could not prevail over the
continuous and peaceful display of authority by
another state for such display may prevail even
over a prior, definitive title put forward by
another state.
Clipperton Island Case
• Clipperton Island - coral atoll in the
eastern Pacific Ocean off the coast of Central
America
• A French Navy Lieutenant proclaimed and
declared that the sovereignty of the island
beginning from that date belonged in perpetuity
to his majesty, Emperor Napoleon III. Thereafter
the vessel put off without leaving any sign of
sovereignty.
HELD:
• Island was declared terra nullius by the arbitrator.
• It is beyond doubt that immemorial usage
having the force of law, besides animus
occupandi (intention on the part of a State to
acquire and retain sovereignty), the actual and
not nominal taking of possession is a necessary
condition of occupation.
• Taking of possession – consists in the act or series
of acts by which the occupying state reduces to
its possession the territory in question and takes
steps to exercise exclusive authority there.
• If a territory, by virtue of the fact that it was
completely uninhabited, from the first moment
when the occupying state makes its
appearance there, at the absolute and
undisputed possession of that State, from that
moment the taking of possession is considered
accomplished and the occupation is formally
completed.
(2) Dereliction
• Territory is lost by dereliction when the state
exercising sovereignty over it physically
withdraws from it with the intention of
abandoning it altogether
• Conditions that must concur:
o Act of withdrawal
o Intention to abandon
• Example:
o Forces of a state are driven away
from the territory by the natives, title is
not thereby necessarily forfeited, as it
may be that they intend to return with
the necessary reinforcements to
suppress resistance.
HN Notes Public International Law – Atty. Alcantara 21

(3) Prescription
• Prescription in international law requires long Terrestrial
Domain
continued and adverse possession to vest
acquisitive title in the claimant
• However, there is yet no rule in international Components Maritime and
law fixing the period of possession necessary to of Territory Fluvial Domain
transfer title to the territory from the former to
the subsequent sovereign
Aerial Domain
(4) Cession
• Method by which territory is transferred from
one state to another by agreement between
1. Terrestrial Domain
them.
• Refers to the land mass, which may be
• Acquisition of territory by cession is usually
integrate or dismembered or partly bounded
effected by such familiar transactions as sale,
by water or consists of whole island or
donation, barter or exchange, and even by
composed of several islands (mid-ocean
testamentary disposition
archipelagos and coastal archipelagos)
• Effected by the meeting of minds of the parties
• Examples:
2. Maritime and Fluvial Domain
o Purchase by US of Alaska from Russia
• Consists of bodies of water within the land mass
(1967)
and the waters adjacent to the coasts of the
o Gift by Austria of Lombardy to France
state up to a specified limit
(1859)
o Exchange between Great Britain and
Rivers
Germany of the island of Helgoland
(1890)
Classification Definition Examples
(5) Subjugation National Rivers Situated Pasig River
• Territory is deemed acquired by subjugation completely in the
when, having been previously conquered or territory of one
occupied in the course of war by the enemy, it state
is formally annexed to it at the end of that war Multi-national Flow through the Congo River,
• Conquest alone confers only an inchoate right Rivers territories of Mekong River
on the occupying state; it is the formal act of several states
annexation that completes the acquisition International It is navigable Rhine River,
• Example: Rivers from the open Danube River
o Ethiopia fell under Italian sovereignty sea and is open
when, after its occupation by Italy to the use of
during the war between them, vessels from all
Ehiopia surrendered to and was states
formally annexed by Italy (1935) Boundary Divides the Lawrence
Rivers territories of the river between
(6) Accretion riparian states US and
• Mode of acquiring territory based on the Canada
principle of accession cedat principali (an
addition to the principle thing becomes part of
it) • Thalweg Doctrine - in the absence of a specific
• It is accomplished through both natural or agreement between such states, the
artificial processes, as by the gradual and boundary line is laid on the river, that is, on the
imperceptible deposit of soil on the coasts of center, not of the river itself, but of its main
the country through the action of the water or, channel
more effectively, by reclamation projects like • Accretion –where the boundary river changes
those undertaken in Manila Bay and the its course by gradual and normal process;
polders of Holland dividing line follows the new course
• Also covers the formation of lands • Avulsion – violent and abrupt deviation;
boundary line will continue to be laid on the old
bed of the river, in the absence of contrary

Source: International Law (2003 Edition) by Justice Isagani A. Cruz

HN Notes Public International Law – Atty. Alcantara
agreement. The same is laid on the middle of
the bridge of the location of the channel
underneath
Bays
• 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
• An indention shall not be regarded as a bay
unless its area is as large as or larger than that
of a semi-circle whose diameter line of drawn
across the mouth of that indention
• If the distance between the low-water marks of
the natural entry points of a bay does not
exceed 24 miles à A closing line may be drawn
between these 2 low-water marks and the
water enclosed thereby shall be considered
internal waters
• Historic bays – those whose waters have
always been considered internal by the
international community notwithstanding that
their openings are more than 24 miles in width
(Bay of Canacale, Bay of El Arab, Chesapeake
Bay, Hudson Bay)
Territorial Sea
• Belt of waters adjacent to the coasts of the
state, excluding the internal waters in bays and
gulfs, over which the state claims sovereignty
and jurisdiction
• Canon shot rule – traditional view, 3 nautical
miles or marine league from the low-water
mark
• UNCLOS = 12 nautical miles
3. Aerial Domain
• The airspace above the terrestrial domain and
the maritime and fluvial domain of the state, to
an unlimited altitude but not including outer
space
• Every state has complete and exclusive
sovereignty over the airspace above its
territory and territorial waters (not the same as
upward limits of aerial domain)
UN Conference on the Law of the Sea (UNCLOS)
• 3 international conferences
o First conference - was held in 1958 at
Geneva, Switzerland, and resulted
inthe adoption of the Convention on
the Territorial Sea and the Contiguous
Zone, the Convention on the High
Seas, and the Convention on the
Fishing and the Living Resources of
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
22
the High Seas, and the Convention
on the Continental Shelf.
o Second conference – in 1960 at
Geneva; left unresolved the question
on the breadth of territorial sea
o Third conference – in 1790, adopted
the UNCLOS; signed in Jamaica in
1982.
• The new Convention provides among others
for
o 12 miles - territorial sea
o 12 miles - contiguous zone of from the
outer limits of the territorial sea
o 200 miles - economic zone or
patrimonial sea from the low-water
mark of the coastal state.
Philippine Territorial Sea
• The claim of the Philippines to its territorial sea
was based on historic right or title or as it often
called, the Treaty Limits Theory.
o Sovereignty exercised by Spain for
more than three centuries
o Those waters specified in the Treaty of
Paris
• International law should recognize historic title
to territorial waters as it recognizes the historic
bays
Archipelago Doctrine
• The national territory comprises the Philippine
archipelago, with all the islands and waters
embraced therein, and all other territories over
which the Philippines has sovereignty or
jurisdiction, consisting of its terrestrial, fluvial,
and aerial domains, including its territorial sea,
the seabed, the subsoil, the insular shelves, and
other submarine areas. The waters around,
between, and connecting the islands of the
archipelago, regardless of their breadth and
dimensions, form part of the internal waters of
the Philippines.
• All the islands should be considered as one
integrated whole
• Archipelago – group of islands, including parts
of islands, interconnecting waters and other
natural features which are so closely
interrelated, that such islands, waters and other
natural features form an intrinsic geographical,
economic and political entity, or which
historically has been regarded as such.
• 1982 UNCLOS – archipelagic sealanes shall be
designated over the internal waters through
which foreign vessels shall have the right of
passage
HN Notes Public International Law – Atty. Alcantara
Basis of the National Territory – RA 3046 as amended by
RA 5446
• All the waters within the limits set forth in the
Treaty of Paris of December 10, 1898 between
Spain of the United States, the Treaty of
Washington of Novermber 7, 1900 and the
treaty concluded by US and Great Britain on
January 2, 1930 have always been regarded as
part of the territory of the Philippine Islands;
• All the waters around, between and
connecting the various islands of the
Philippines archipelago, irrespective of their
width or dimension, have always been
considered as necessary appurtenances of the
land territory, forming part of the inland or
internal waters of the Philippines
• All the waters beyond the outermost islands of
the archipelago but within the limits of the
boundaries set forth in the aforementioned
treaties comprise the territorial sea of the
Philippines
• The baselines from which the territorial sea of
the Philippines is determined consist of straight
lines joining appropriate points of the
outermost islands of the archipelago
Methods of Defining the Territoral Sea
Normal Baseline Method Straight Baseline Method
The territorial sea is Straight lines are made to
simply drawn from the connect appropriate
low-water mark of the points on the coast
coast, to the breadth without departing
claimed, following its radically from its general
sinuosities and direction
curvatures but
excluding the internal
waters in bays and gulfs
Fisheries Case
United Kingdom questioned the use by Norway of the
straight baseline method defining its territorial waters.
HELD:
• The method of straight baselines, established in
the Norwegian system, was imposed the by
peculiar geography of the Norwegian coast.
• This method had been consolidated by a
constant and sufficiently long practice
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
23
CHAPTER 11: JURISDICTION
Jurisdiction
• Authority exercised by a state over persons
and things within or sometimes outside its
territory, subject to certain exceptions
• Jurisdiction is classified as:
o Personal
o Territorial
• Jurisdiction may be exercised by a state over:
o Its nationals
o Terrestrial domain
o Maritime and fluvial domain
o Continental shelf
o Open seas
o Aerial domain
o Outer space
o Other territories
Personal Jurisdiction
• Power exercised by a state over its nationals.
• It is based on theory that a national is entitled
to the protection of his state wherever he may
be and is, therefore, bound to it by duty of
obedience and allegiance (Doctrine of
indelible allegiance)
• Related Civil Code provisions
o Art. 15. Laws relating to family rights
and duties, or to the status, condition
and legal capacity of persons are
binding upon citizens of the
Philippines, even though living
abroad.
o Art. 16. Real property as well as
personal property is subject to the law
of the country where it is stipulated.
However, intestate and testamentary
successions, both with respect to the
order of succession and to the
amount of successional rights and to
the intrinsic validity of testamentary
provisions, shall be regulated by the
national law of the person whose
succession is under consideration,
whatever may be the nature of the
property and regardless of the
country wherein said property may
be found.
Joyce v. Director of Public Prosecution
Defendant Lord Haw Haw, challenged his conviction
in Great Britain for high treason, contending that he
was not a British subject. It appeared that he had
lived in the country for 18 years and misrepresented
himself as its national for the purpose of obtaining a
British passport that enabled him to go to Germany
where he was broadcast anti-Allied propaganda.
HN Notes Public International Law – Atty. Alcantara 24

HELD: • Nationals and aliens, including non-residents,

Although not a British subject, he has by his own act are bound by its laws
maintained the bond which while he was within the • The local state has exclusive title to all property
realm bound him to his Sovereign within its territory

Territorial Jurisdiction Maritime and Fluvial Jurisdiction

• The jurisdiction of the nation within its own • Internal waters of a state are assimilated to the
territory is necessary, exclusive and absolute. It land mass and subjected to the same degree
is susceptible of no limitation not imposed by of jurisdiction exercised over the terrestrial
itself. (The Schooner Exchange v. McFaddon) domain.
• More effective than Personal jurisdiction • Civil, criminal and administrative jurisdiction is
because it is asserted by the state over persons exercised by the flag state over its public
and property within its immediate control and vessels wherever they may be, provided they
subject to its coercive processes are not engaged in commerce
• General Rule: State has jurisdiction over all • Rules on foreign merchant vessels docked in
persons and property within its territory local port
• Exceptions:
1. Foreign states, heads of states, diplomatic English Rule French Rule
representatives, and consuls to a certain The coastal state shall Flag state shall have
degree have jurisdiction over all jurisdiction over all offenses
2. Foreign state property: embassies, offenses committed onb committed on board such
consulates, and public vessels engaged in oard such vessels, except vessels, except only where
non-commercial activities only where they do not the compromise the peace
3. Acts of state compromise the peace of the port.
4. Foreign merchant vessels exercising the of the port.
rights of innocent passage or arrival under Antoni Case Windenhouse Case
stress Murder of a Frenchman The murder of a Belgian by
5. Foreign armies passing through or by another another
stationed in its territories with its permission Frenchman on board a Belgian on board a Belgian
6. Such other persons or property, including French merchant vessel merchant steamer in the
organizations like the UN, by agreement, in a Mexican port did not port of New Jersey was of
waive jurisdiction disturb the peace of the such a nature as “ to disturb
port. tranquillity and public order
• Innocent passage - navigation through the on shore or in the port.
territorial sea of a state for the purpose of English rule is applicable in the country
traversing that sea without entering internal • It is the right of the coastal state to enforce all
waters, etc. as long as it is not prejudicial to the its laws to the full extent in its territorial waters
peace, good order or security of the coastal
sea. Archipelagic sealanes - Waters over which foreign ships
• Arrival under stress/Involuntary entrance - may will have the right of passage as if they were open seas.
be due to lack of provisions, unseaworthiness A foreign vessel need not go around our internal waters
of the vessel, inclement weather, or other but may use these archipelagic sea lanes in negotiating
cases of force majeure, like pursuit by pirates. the distance from one point of the open sea to another

Underhill v. Hernandez USS Pablo Incident

“Every sovereign state is bound to respect the
independence of every other sovereign state, and
the courts of one country will not sit in judgement on
the acts of the government of another, done within
its own territory.”
Land Jurisdiction
• Everything found within the terrestrial domain
of the state is under its jurisdiction, save for the
abovementioned exceptions
An American vessel was seized and its crew interned
by North Korea for alleged infringement of its territorial
waters.
Contiguous Zone
• May not exceed 12 miles from the territorial sea
• UNCLOS - Contiguous zone also extends 12
miles, but from the outer limits of the territorial
sea.
• This is the zone where the coastal state may
exercise the control necessary to:

Source: International Law (2003 Edition) by Justice Isagani A. Cruz

HN Notes Public International Law – Atty. Alcantara
o Prevent infringement of its customs,
fiscal, immigration or sanitary
regulations within its territory or
territorial sea,
o Punish infringement of the above
Continental Shelf
• Refers to:
o The seabed and subsoil of similar
areas adjacent to the coasts but
outside the area of the territorial sea,
to a depth of 200 meters or beyond
that limit, to where the depth of
superjacent waters admits of the
exploitation of the natural resources
o The seabed and subsoil of similar
areas adjacent to the coasts of the
islands
• Right of coastal state over the continental shelf
= To explore and to exploit its natural resources
Patrimonial Sea
• Also called as the Exclusive Economic Zone
(EEZ)
• Extends 200 nautical miles from the coast or the
baselines
• All living and non-living resources found therein
belong exclusively to the coastal state
Open Seas
• Available to the use of all states for purposes of
navigation, flying over them, laying submarine
cables or fishing
• In times of war, hostilities maybe waged on the
open seas
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
25
When state may exercise jurisdiction over the open seas:
Over its vessels
•The flag state has jurisiction over its
public vessels at all times.
•Merchant vessels are under the
jurisdiction of the flag state when they
are within its territory, when jurisdiction is
waives or cannot be exercised by the
territorial sovereign or when such vessels
are on the open seas.
Over pirates
•Pirates are enemies of all mankind and
may be captured on the open seas by
the vessel of any state, to whose territory
they may be brought for trial and
punishment.
Exercise of right of visit and
search
•Public vessels or aircraft of a belligerent
state may visit and search any neutral
merchant vessel on the open seas and
capture it if found or suspected to be
engaged in activities favorable to the
other belligerent.
Under the doctrine of hot
pursuit
•If an offense is committed by a foreign
merchant vessel within the territorial
waters of the coastal state, its own
vessels may pursue the offending vessel
into the open sea and upon capture
bring it back to its territory for
punishment.
•Pursuit must be begun before the
offending vessel has left the territorial
waters of the contiguous zone of the
coastal state..
The Lotus Case
A collision occurred on the high seas between a
French vessel Lotus and a Turkish vessel Boz-Kourt. The
Boz-Kourt sank and killed eight Turkish nationals on
board the Turkish vessel. The 10 survivors of the Boz-
Kourt (including its captain) were taken to Turkey on
board the Lotus. In Turkey, the officer on watch of the
Lotus (Demons), and the captain of the Turkish ship
were charged with manslaughter. Demons, a French
national, was sentenced to 80 days of
imprisonment and a fine. The French government
protested, demanding the release of Demons or the
transfer of his case to the French Courts. Turkey and
France agreed to refer this dispute on the jurisdiction
to the Permanent Court of International Justice (PCIJ)
HN Notes Public International Law – Atty. Alcantara
HELD:
The first principle of the Lotus case said that jurisdiction
is territorial: A State cannot exercise its jurisdiction
outside its territory unless it an international treaty or
customary law permits it to do so. This is what we
called the first Lotus Principle.
Aerial Jurisdiction
• The consensus appears to be that the local
state has jurisdiction over the airspace above it
to an unlimited height, or at the most up to
where outer space begins
Air Freedoms
1. First Freedom of the Air - the right or privilege, in
respect of scheduled international air services,
granted by one State to another State or States
to fly across its territory without landing
2. Second Freedom of the Air - the right or
privilege, in respect of scheduled international
air services, granted by one State to another
State or States to land in its territory for non-
traffic purposes.
3. Third Freedom of The Air - the right or privilege,
in respect of scheduled international air
services, granted by one State to another State
to put down, in the territory of the first State,
traffic coming from the home State of the
carrier
4. Fourth Freedom of The Air - the right or privilege,
in respect of scheduled international air
services, granted by one State to another State
to take on, in the territory of the first State, traffic
destined for the home State of the carrier
5. Fifth Freedom of The Air - the right or privilege,
in respect of scheduled international air
services, granted by one State to another State
to put down and to take on, in the territory of
the first State, traffic coming from or destined
to a third State
6. Sixth Freedom of The Air - the right or privilege,
in respect of scheduled international air
services, of transporting, via the home State of
the carrier, traffic moving between two other
States
7. Seventh Freedom of The Air - the right or
privilege, in respect of scheduled international
air services, granted by one State to another
State, of transporting traffic between the
territory of the granting State and any third
State with no requirement to include on such
operation any point in the territory of the
recipient State, i.e the service need not
connect to or be an extension of any service
to/from the home State of the carrier.
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
26
8. Eighth Freedom of The Air - the right or privilege,
in respect of scheduled international air
services, of transporting cabotage traffic
between two points in the territory of the
granting State on a service which originates or
terminates in the home country of the foreign
carrier or (in connection with the so-called
Seventh Freedom of the Air) outside the
territory of the granting State (also known as
"consecutive cabotage").
9. Ninth Freedom of The Air - the right or privilege
of transporting cabotage traffic of the granting
State on a service performed entirely within the
territory of the granting State (also known as
"stand alone" cabotage)
Convention on Offenses and Certain Other Acts
Committed on Board Aircraft (September 14, 1963)
General Rule: It is the state of registration of the aircraft
that has jurisdiction over offenses and acts committed
on board while it is in flight or over the high seas or any
other area outside the territory of any state
Exceptions:
• Offense has effect on the territory of such state
• Offense has been committed by or against a
national or permanent resident of such state
• Offense is against the security of such state
• Offense consists of breach of any rules or
regulations relating to the flight or maneuver of
aircraft in force in such state
• The existence of jurisdiction is necessary to
ensure the observance of any obligation of
such state under a multilateral international
agreement
Outer Space
• Outer space, or the region beyond the earth’s
atmosphere, is not subject to the jurisdiction of
any state.
• Outer space shall be free for exploration and
use by all states without discrimination of any
kind.
• Astronauts shall be regarded as envoys of
mankind.
Other Territories
When a state may extend its jurisdiction beyond its
territory by virtue of customary of conventional
international law:
§ Assertion of its personal jurisdiction over its
nationals abroad or the exercise of right to
punish certain offenses committed outside its
territory against its national interest
§ On the strength of its relations with other states
o Establishment of protectorate,
HN Notes Public International Law – Atty. Alcantara
administering a trust territory,
occupying enemy territory during
times of war
§ Waiver of jurisdiction by a local state over
persons within its territory
o Use of the English or French rule over
foreign merchant vessels
§ Acquisition of extraterritorial rights
o Exterriotariality – exemption of person
and property from the local
jurisdiction on the basis
international custom
o Extraterritoriality – applies only to
persons and based on a treaty or
convention
§ Through the enjoyment of easements or
servitudes such as innocent passage or arrival
under stress.
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
27
CHAPTER 12: THE RIGHT OF LEGATION
Ø The right to send and receive diplomatic
representatives
Ø One of the most effective ways of facilitating
and promoting intercourse among states
Ø Active right: The act of ending diplomatic
representatives
Ø Passive right: The act of receiving diplomatic
representatives.
of Ø Purely consensual: The maintenance of
diplomatic relations is not a demandable right
on the part of the sending or receiving state
Agents of Diplomatic Intercourse
Normally conducted through: (HFS-AECP)
• Head of state
• Foreign secretary or minister
• Members of diplomatic service
• Head of state may also appoint special
diplomatic agents charged with specific
ceremonial or political duties
• Envoys ceremonial: sent to attend state
functions (e.g. coronation or jubilee)
• Envoys political: commissioned to negotiate
with a state or participate in international
conference or congress
• There is no need to accredit them to
the state where sessions are held
• Regular diplomatic relations between
the states not necessary
The Head of State
The embodiment of or at least represents the sovereignty
of his state. He is entitled to immunities and honors
befitting his status
Ø His person being regarded as a sacrosanct, he
has a right to special protection not only for his
physical safety but for his honor or reputation
as well
• His quarters, archives, property and
means of transportation are
inviolable under the principle of
extraterritoriality
• He is exempt from criminal and civil
jurisdiction
• Except where he is the
plaintiff
• Not subject to tax or to exchange or
currency restrictions
HN Notes Public International Law – Atty. Alcantara
• Ceremonial amenities are due him
unless he is travelling incognito
• (See p. 142 Mighell vs. Sultan vs.
Johore)
The Foreign Secretary
He is the immediate representative of the head of the
state and directly under his control
Ø Except on rare occasions when the matter
under consideration is of such significance as
to warrant no less than what is known as a
summit meeting, the conduct of external
affairs is entrusted to foreign secretary or
minister
• He can make binding declarations
on behalf of the state on matters
falling within his authority such as:
• Relating to recognition of
states or governments
• Settlement of international
claims against the state
Ø He is also the head of foreign office and has
direction of all ambassadors and other
diplomatic representatives of his government
Diplomatic Envoys
Regular or day-to-day conduct of international affairs is
entrusted to members of the foreign service who are
accredited by the sending state as its permanent envoys
to represent it in the states with which it is maintaining
diplomatic relations.
Classification of heads of diplomatic missions:
(Convention on Diplomatic Relations)
1. Ambassadors or nuncios accredited to
heads of state
2. Envoys, ministers, or internuncios
accredited to heads of state
3. Charges d’affaires accredited to ministers
for foreign affairs
Ø Then: Classification was significant because
direct communication with head of state
depended on the rank of the diplomat and
only the powerful states were entitled to send
envoys of the highest rank
Ø Now: Diplomatic matters are usually discussed
with foreign secretary regardless of diplomat’s
rank
Ø Distinctions are important only in matters of
protocol or grant of special honors.
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
28
Ø In other respects, the various diplomatic agents
enjoy substantially the same prerogatives
regardless of rank
The Diplomatic Corps
A body consisting of different diplomatic representatives
who have been accredited to the same local or
receiving state.
Ø Doyen du corps: Head of diplomatic corps who
by tradition, is the oldest member with the
highest rank
• Papal Nuncio in Catholic countries
Ø Heads of missions shall take precedence in
their respective classes in the order of the date
and time of taking up their functions
(Diplomatic Convention)
Ø Since it is a loose organization without
corporate character, it does not possess
powers or attributes
• It is nonetheless important in
watching over diplomatic privileges
and honors and has at times acted
officially in the protection of the rights
of its members
Appointment of Envoys
The class to which the heads of their missions are to be
assign shall be agreed upon between the states
concerned
Ø Sending state must ascertain that the
agrément of receiving state has been given for
the person it proposes to accredit as head of
the mission to that state
Ø Agrément: specialized term in the field of
international affairs that refers to the
agreement by a state to receive members of a
diplomatic mission from a foreign country.
Ø Appointment is not merely a matter of
municipal law
• Receiving state is not obliged to
accept representative who is
persona non grata to it
• Persona non grata: is a foreign person
whose entering or remaining in a
particular country is prohibited by
that country's government.
Ø Agreation: informal inquiries are addressed to
the receiving state regarding a proposed
diplomatic representative of a sending state
Ø When receiving state manifests consent,
appointment is made and accredited.
HN Notes Public International Law – Atty. Alcantara
Ø The receiving state is not obliged to give
reasons for a refusal of agrément (Article 4 of
Diplomatic Convention)
Ø In the PH: President is empowered to appoint
ambassadors and public ministers and consuls,
subject to the consent of CoA (Think Admin
HAHAHAHUH)
• Discretion is exclusive with regards to
receiving ambassadors and public
ministers duly accredited to the
government of the Philippines
Commencement of the Diplomatic Mission
The head of mission is considered as having taken up his
functions in the receiving state either when:
• When he presented his credential
• When he notified his arrival and a true copy of
his credentials has been presented to the
foreign ministry
The credentials of the diplomatic agent include:
• Letter of credence: By means of which he is
accredited to the receiving state with the
request that full faith and credit be given to his
official acts on behalf of the sending state
• Diplomatic passport
• Official instructions
• Cipher or code of book for use in sending
secret communications for his government
Ø Reception of envoy is not a mere ceremony.
Ø Unless agrément is given to the appointment,
the diplomatic representative cannot claim
the privileges and immunities of the office until
formally accepted
Diplomatic Functions
1. Representing the sending state in the
receiving state
2. Protecting in the receiving state the
interests of the sending state and its
nationals
3. Negotiating with the government of the
receiving state
4. Ascertaining by all lawful means
conditions and developments in the
receiving state and reporting theron to the
government of the sending state
5. Promoting friendly relations between the
sending and receiving states and
developing their economic, cultural and
scientific relations
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
29
Ø They may also perform consular functions in
absence of consular mission
Ø On request or by agreement, it may also
represent friendly governments (US undertook
representation of PH while in the process of
organizing its own foreign service)
Conduct of Diplomatic Mission
The diplomatic agent must exercise the utmost
discretion and tact, taking care always to preserve the
goodwill of the sending state and to avoid interference
with its internal affairs
Ø It cannot aid one political party against
another or employ threatening or offensive
language for the protection of the interests of
his state
Ø Mission may not be used for espionage,
dissemination of propaganda or subversion of
its government
Ø States may either voluntarily or on request,
recall their diplomatic representatives for
improper discharge of functions
Diplomatic Immunities and Privileges
Reason: He is an extension of the state he was
representing.
Modern view: The privileges and immunities are
necessary to give the envoy the fullest freedom or
latitude in the exercise of his official functions
a. Personal Inviolability
Envoy is regarded as sacrosanct and is entitled to
special protection of his person, honor and liberty.
Ø Attack on any of these is deemed a
serious offense and must be redressed with
the most severe penalties by the receiving
state
Ø The person of a diplomatic agent shall be
inviolable.
o He shall not be liable to any form of
arrest or detention. The receiving
state shall treat him with due respect
and shall take all appropriate steps to
prevent any attack on his person,
freedom or dignity (The Diplomatic
Convention)
Ø Exceptions:
• When he has caused the initial
aggression and provoked
HN Notes Public International Law – Atty. Alcantara
retaliation or unduly exposed
himself to danger
• Local authorities may also lay
hands on him when he has
committed acts of violence and
it is necessary to place him in
preventive restraint
Ø RA No. 75 punishes on the basis of
reciprocity, “any person who assaults,
strikes, wounds, imprisons, or in any other
manner offers violence to the person of an
ambassador or public minister, in violation
of the law of nations”
• Attack is confined to the person
of the envoy and not to his honor
or reputation.
b. Immunity from Jurisdiction
Diplomatic agent shall be immune from civil,
criminal, and administrative jurisdiction of the
receiving state except in a few specified cases.
Ø He still cannot violate the local laws with
impunity, he is expected to observe such
meticulously as befits a person of his rank
and prestige
• If he does not, he may be
punished for his offense and it
can ask for his recall
Ø Immunity of envoy can escape the rigor of
local laws even if he commits the most
serious offense in the receiving state
Ø 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
Ø Exceptions:
• 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;
• 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;
• An action relating to any
professional or commercial
activity exercised by the
diplomatic agent in the
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
30
receiving state outside of his
official functions.
Ø Immunity from jurisdiction may be waived
expressly by the sending state, or under its
authority, by the head of the mission
Ø Implied waiver: when person entitled to
the immunity commences proceedings in
the local state and thereby opens himself
to any counterclaim directly connected
with the principal claim
• Waiver in civil or administrative
proceedings shall not be held to
imply waiver in respect of the
execution of judgment, for
which separate waiver shall be
necessary
Ø RA No. 75: Any writ or process sued out or
prosecuted by any person in any court of
the Republic of the Philippines, or by any
judge or justice, whereby the person of
any ambassador or public minister of any
foreign State, authorized and received as
such by the President, or any domestic or
domestic servant of any such ambassador
or minister is arrested or imprisoned, or his
goods or chattels are distrained, seized, or
attached, shall be deemed void, and
every person by whom the same is
obtained or prosecuted, whether as party
or as attorney, and every officer
concerned in executing it, shall upon
conviction, be punished by imprisonment
for not more than three years and a fine of
not exceeding two hundred pesos in the
discretion of the court.
Ø WHO vs. Aquino, p. 151-153
Ø The Holy See vs. Rosario p. 153- 154
c. Inviolability of Diplomatic Premises
The premises of the mission shall be inviolable. The
agents of the receiving state may not enter them
except with the consent of the head of mission.
Ø Receiving state has a special duty to take
all appropriate steps to protect of the
mission against any intrusion or damage
and to prevent any disturbance of the
peace of the mission or impairment of its
dignity
Ø Premises of mission, furnishings and other
property and means of transport of the
mission shall be immune from search,
requisition, attachment or execution
HN Notes Public International Law – Atty. Alcantara
Ø Franchise de l’hotel extends immunity from
the local law to diplomatic premises. It
includes:
• Envoy’s offices, his residence
and out-buildings, his means of
transportation and the
compound where these are
found
• May not be entered by
the authorities without
his permission
• Exception:
• In cases of clear and
urgent necessity to
take forcible measures
to arrest any person
subject to their
jurisdiction
• Right of diplomatic
asylum- The protection
granted by the state to
a foreign citizen
against his own state.
• It has not received
universal recognition
except when it is
extended
humanitarian reasons,
as when fugitive
seeking sanctuary is in
immediate danger of
his life or safety.
d. Inviolability of Archives
The receiving state has no right to pry into the
official papers and records of a foreign diplomatic
mission.
Ø “The archives and documents of the mission
shall be inviolable at any time and wherever
they may be” (Diplomatic Convention)
Ø Archives must remain sealed and may not be
confiscated by local state in case of armed
conflict
e. Inviolability of Communication
Reason: To properly discharge his official functions
Ø The receiving state shall permit and protect
free communication on the part of the mission
for all official purposes. In communicating with
the government and other missions and
consulates of the sending state, whenever
situated, the mission may employ all
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
31
appropriate means, including diplomatic
couriers and messages in code or cipher
(Diplomatic Convention)
Ø Such communications are inviolable and
diplomatic bag containing it “shall not be
opened or detained”
f. Exemption from Testimonial Duties
A diplomatic agent is not obliged to give evidence
as a witness. (Diplomatic Convention)
Ø He is not prohibited from doing so and
may waive this privilege when authorized
by his government.
g. Exemption from Taxation
Ø Including taxes, custom duties, and other
dues
Ø Exceptions:
• when listed in the Diplomatic
Convention
• Social security requirements
under certain conditions
Ø Personal baggage is also free from
inspection except:
• There are serious grounds for
for
presuming that it contains
articles not exempt from custom
duties or not admissible into the
receiving state
h. Other Privileges
Subject to its laws and regulations concerning zones
entry into which is prohibited or regulated for
reasons of national security, the receiving state shall
ensure to all members of the mission freedom of
movement and travel in its territory
Ø They are also exempt from:
• All personal services,
• Public services,
• Military obligation such as
requisitioning, military
contributions and billeting
Ø The mission and its head has the right to
use the flag and emblem of the sending
state on the premises of the mission,
including the residence of the head of the
mission, and on his means of transport
The Diplomatic Suite or Retinue
Immunities and privileges are also available to head of
mission’s family, members of diplomatic retinue, albeit
not in the same degree
HN Notes Public International Law – Atty. Alcantara
Ø The diplomatic retinue consists of:
• Diplomatic staff
• Administrative staff
• Technical staff
• Service staff
Ø Administrative and technical staff enjoys the
same rights as the diplomatic staff
• Except: Immunity from civil and
administrative jurisdiction shall not
extend to unofficial acts
Ø Private servants: if not nationals or permanent
residents of receiving state, enjoy only
exemption from dues and taxes on their
income from mission and rights which are
granted by the receiving state
Duration
It shall be enjoyed from the moment he enters the
territory of the receiving state on proceeding to take up
his post or, if already there, from the moment his
appointment is notified to the foreign ministry.
Ø When functions have to come to an end, his
privileges and immunities shall cease from the
moment he leaves the country or on expiry of
a reasonable time in which to do so, but shall
subsist until such time even in case of armed
conflict
Ø With respect to acts performed in the exercise
of his official functions, immunity shall continue
indefinitely as it is supposed to have attached
not to him personally but to the state he was
representing
Ø Rights are available not only in situ but also in
transitu
Termination of Diplomatic Mission
It may come to an end by any of the usual methods of
terminating official relations
These are governed by municipal law.
• Death
• Resignation
• Removal
• Abolition of office
Under international law the more important modes are:
• Recall
• Dismissal
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
32
Ø Recall may be demanded by receiving state
when the foreign diplomat becomes persona
non grata to it for any reason.
(See p. 159 for example)
Ø Where demand is rejected by receiving state,
or when without making a request for recall,
the receiving state may resort to the more
drastic method of dismissal, by which the
offending diplomat is simply asked to leave the
country.
Ø Diplomatic relations terminate in the outbreak
of war
Ø Extinction of either state will also have the same
effect
Ø Change of government:
o If peaceful: diplomatic relations are
not disturbed
o If effected by means of violence and
new government is not yet
recognized the by receiving state: it
may be suspended
• In either case, there is a necessity for
the agent to be provided with a new
letter of credence
CHAPTER 13: CONSULS
Consuls are state agents residing abroad for various
purposes but mainly in the interest of commerce and
navigation
• They are not charged with the duty of
representing their states in political matters
• They are not accredited to the state they are
supposed to discharge their functions
• They do not enjoy all the traditional diplomatic
immunities and privileges
• But they are entitled to special
treatment under the law of nations
(See p. 161 for brief history)
Kinds and Grades
1. Consules missi: Professional or career consuls
who are nationals of the appointing state and
are required to devote their full time to the
discharge of their consular duties
2. Consules electi: May or may not be nationals
of the appointing state and perform their
consular functions only in addition to their
regular callings
Ø Although consuls enjoy a certain measure of
international character, their grades or ranks
remain a matter of municipal concern.
Ø Classification of heads of consular posts:
• Consul-general
• Vice-consul
• Consular agent
HN Notes Public International Law – Atty. Alcantara 33

• Look after the interests of fellow

Appointment nationals and extend them official
assistance whenever needed
Consul derive their authority from two principal sources:
• They may authenticate
documents
1. Commission issued by the sending state
• Solemnize marriages
2. Exequatur, the authority given to them by the
receiving state to exercise their duties therein. • Register births and deaths,
• Administer temporarily
Ø Consuls are public officers both of the estates of deceased
receiving and sending state, and are nationals within consular
governed by the laws of both district
Ø In case of diplomats, states may refuse to • Advise and adjust
receive consuls and to withhold the exequatur differences between fellow
from them without explanation nationals
Ø Consent given to establishment of diplomatic • Visit them when they are
relations implies consent to establishment of arrested or detained
consular relations, unless otherwise provided • Assist them in proceedings
Ø Severance of diplomatic relations shall not ipso
• Inquire into any incidents
facto severe consular relations and vice versa
which have occurred within
the consular district
Functions
affecting interests of
nationals
Functions of consuls may be divided into:
Immunities and Privileges
1. Commerce and Navigation
2. Duties respecting issuance of passports and International comity and conventions have invested
visas them with certain privileges and immunities which are
3. Duties of protection of nationals generally recognized and observed by civilized states.

Principal Duties: Ø Right to official communication and may

• To promote the commercial interests of their
country in the receiving state
• To observe the commercial trends and
developments therein for report to their home
government.
Additional Duties:
• Navigation:
• visiting and inspecting vessels of their
own states which may be in the
consular district
• Exercising a measure of supervision
over such vessels
• Adjusting matters pertaining to their
internal order and discipline
• Visiting and inspecting foreign vessels
destined for port of the sending state
• Passport and visas
• Issue passports to nationals of the
sending state
• To visa passports
• To issue documents relating to entry
into and travel within the territory of
the sending state
• To vista invoices and certificates of
origin of goods destined for the
territory of the state
• Protection of nationals
correspond with their home government or
other official bodies by any means, including
cipher or code, without being subjected to
censorship or unreasonable restraint
• May be curtailed or restricted: when
exercised to the prejudice of the
receiving state
Ø Right to inviolability of their archives, which
may not be examined or seized under any
circumstance
• They may not be compelled to
produce testimony in official
proceedings
• Exception: It does not extend to the
consular premises themselves, where
legal processes may be served and
arrests made without violation of
international law
• Exception to the exception:
Only in the part where
consular work is being
performed
• Consular offices may be
expropriated for purposes of national
defense or public utility (Mrs.
Kasenkina Example p. 165)
Ø In criminal offenses: consuls are exempt from
the local jurisdiction for crimes committed in
the discharge of their official functions
• In other offenses: They are fully
subject to the local law and may be
arrested, prosecuted, and punished

Source: International Law (2003 Edition) by Justice Isagani A. Cruz

HN Notes Public International Law – Atty. Alcantara
• Not prosecuted for minor offenses
and when arrested, are given
adequate opportunity to secure their
release on bail at the earliest possible
time
Ø Civil suits may be instituted against consults in
their personal and private capacity
• Not in matters connected with their
official duties
• Walthier vs. Thomson p. 166
Ø Exempted from Taxation
• Including custom duties, service in the
militia, and social security rules
• Privileged to display their national
flag and insignia in the consulate
even if these are not essential to the
proper discharge of official duties
Ø Immunities and privileges are also available to:
• Members of the consular post
• Respective families
• Private staffs
Ø Waiver may be made by the sending state
Ø With respect to acts performed by the consul
or consular officer or employee in the exercise
of his functions, immunity from jurisdiction will
subsist without limitation of time
Termination of Consular Mission
Consul’s office may end in accordance with the usual
modes of terminating official relations:
• Removal
• Resignation
• Death
• Expiration of term
• Extinguishment of either appointing or
receiving state
• Exequatur withdrawn by the receiving state
• In the event of war
• Consulate is closed and the archives are
sealed and left in the custody of the
caretaker (consul from a neutral state)
• Consul from belligerent state is allowed to
depart for his own country as soon as
possible and without unnecessary
molestation
Severance of consular relations does not necessarily
terminate diplomatic relations.
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
34
CHAPTER 14: TREATIES
TREATY
≈ A formal agreement, usually but not
necessarily in writing, which is entered into by
states or entities possessing the treaty-making
capacity, for the purpose of regulating their
mutual relations under the law of nations.
» in its generic sense, the term may embrace
other compacts as conventions, declarations,
convenants, acts, concordats, etc although
there are recognized variations in their extent
or purposes.
≈ An executive agreement is not a treaty insofar
as the concurrence thereto of the Senate is not
required under our Constitution
» However, from the viewpoint of international
law, “treaties and executive agreements are
alike in that both constitute equally binding
obligations upon the nation.”
Functions of Treaties
According to Schwarzenberger, treaties are supposed
to perform four important functions
1. treaties enable parties to settle finally actual
and potential conflicts
2. they make it possible for the parties to modify
the rules of international customary law by
means of optional principles or standards
3. they may lead to a transformation of
unorganized international society into one
which may be organized on any chosen level
of social integration
4. they frequently provide the humus for the
growth of international customary law
Essential Requisites of a Valid Treaty
To be valid, a treaty must:
a) be entered into by parties with the treaty-making
capacity
b) through their authorized representatives
c) without the attendance of duress, fraud, mistake, or
other vice of consent
d) on any lawful subject-matter
e) in accordance with their their respective
constitutional processes
Treaty-making capacity
» All states have full treaty-making capacity
unless limited by reason of their status or by
previous self-imposed inhibitions.
o Example: Proctetorate is restricted in
control of its external affairs by the
protector-state
» But there are instances when even mere
colonies have been allowed to sign treaties or
join international conferences as full-fledged
members along with sovereign states.
» UN and its organs, and international bodies like
the WHO, may also enter into treaties
HN Notes Public International Law – Atty. Alcantara
Authorized Representatives
» It is for municipal law to determine which organ
of the state shall be empowered to enter into
treaties in its behalf
» There is some conflict regarding the legal
effect of a treaty concluded by an organ of
the state without constitutional authority to
undertake this function.
ARGUMENT 1: A state is not bound by a treaty made in
its behalf by an organ or authority not competent under
the law to conclude the treaty; however, a state may be
responsible for an injury resulting to another state for
reasonable reliance by the latter upon a representation
that such organ or authority was competent to
conclude the treaty [Harvard Research of International
Law]
ARGUMENT 2: The other party, if it is ignorant and
reasonably ignorant of the defect, is entitled to assume
that the instrument is in order and to hold the former to
the obligation of the latter [McNair]
Freedom of Consent
» Fraud or mistake will invalidate a treaty as it
would an ordinary contract
» A treaty forced upon the person of the
negotiator is null and void ab initio
» BUT it is different if the pressure is applied not
upon the negotiator but upon the state itself,
as in the case of dictated treaty of peace
» With the outlawry of war, however, it is now
suggested that treaties of peace exacted from
the vanquished beligerent should be regarded
not as voluntary compacts entered into as the
price of peace, but rather a sentence imposed
by the international community upon
aggressors for crimes committed against
international law and the general peace
Lawful Subject-Matter
EXAMPLE OF INVALID TREATY: Treaty of Tordesillas in 1494
- because of the illegality of its subject-matter insofar as
it sought to divide between Spain and Portugal parts of
the Atlantic, Pacific and Indian Oceans
Compliance with Constitutional Processes
» the treaty making process is governed by
international law except with respect to the
method of ratification as required by municipal
law of most states
» non-compliance with this requisite will prevent
enforcement of the treaty even if already
signed by the authorized negotiators
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
35
Treaty-making Process
negotiation
signature
ratification
exchange of instruments
of ratification
registration and
publication under the UN
Charter
Negotiation
» may be undertaken directly by the head of
state
» nowadays, he assigns this task to his authorized
representatives
» these representatives are provided with
credentials known as “full powers”, which they
exhibit to other negotiators
» it is standard practive for parties to submit a
draft of the proposed treaty which, together
with the counter-proposals, becomes the basis
of subsequent negotiations
Signature
≈ means of authenticating the instrument and for
the purpose of symbolizing the good faith of
the parties
» does not indicate the final consent in cases
where ratification is required
» document is ordinarily signed in accordance
with alternat, that is, each of the several
negotiators is allowed to sign before they will
bring them home to his own state
Ratification
≈ formal act by which a state confirms and
accepts the provisions of a treaty concluded
by its representatives
» most treaties are made subject to the scrutiny
and consent of a department of the
government other than that which negotiated
them
» in the absence of stipulation to the contrary, an
unratified treaty cannot be a source of
obligations between the parties
Question: What if the treaty is ratified in violation of the
constitution of the ratifying state?
Answer: Foreign governments should be held to a
knowledge if the constitutional prerequisites for
ratification in each country with which they are dealing;
and that a treaty which has been ratified without proper
HN Notes Public International Law – Atty. Alcantara
observance of these requirements is ipso facto invalid,
whatever the proclamation of the head of state may
assert
» At times, to avoid total rejection, the
ratification is qualified or made conditional
(with reservations), in which event the same
must be accepted by the other party if these
would constitute a modification of the original
agreement
FUN FACT! The power to ratify in the PH is vested not in
the legislature but in the President. The role of Senate is
simply to give or withhold consent to the ratification.
Exchange of the Instruments of Ratification
» signifies the effectivity of the treaty unless a
different date has been agreed upon
Registration and Publication under the UN Charter
» under Art 103 of UN Charter, a treaty not
registered with the Secretariat, by which it shall
be published, cannot be invoked before any
organ of the UN, such as the ICC
» nevertheless, it is not an essential requisite, does
not cease to be binding between the parties
and may be the basis of litigation in other
tribunal
Binding Effect of Treaties
General Rule:
» binding only on the contracting parties
» includes original signatories and other states
which, although they may not have
participated in the negotiation of the
agreement, have been allowed by its terms to
sign it later by a process known as accession
Exceptions: [When third states are bound]
1) the treaty may be merely a formal expression
of customary international law
2) as provided in Art 2 of UN Charter that the “The
Organization shall ensure that states which are
not Members of the United Nations act in
accordance with these Principles so far as may
be necessary for the maintenance of
international peace and security.” AND under
Art 103 of UN Charter 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
3) the treaty itseld may expressly extend its
benefits to non-signatory
MOST FAVORED NATION CLAUSE
» where parties to apparently unrelated treaties
may also be linked
» the contracting state entitled to most-favored-
nation treatment from the other may claim the
benefits extended by the latter to another
state in a separate agreement
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
36
Observance of Treaties
PACTA SUNT SERVANDA
≈ “agreements must be kept”
» performance in good faith of treaty obligations
» parties must comply with their commitments
under a treaty and cannot ignore or modify its
provisions without the consent of the other
signatories
Tanada v. Angara
• a treaty engagement is not a mere moral
obligation but creates a legally binding
obligation on the parties
• a state which has contracted valid
international obligations is bound to make in its
legislations such modifications as may be
necessary to ensure the fuldillments of the
obligations undertaken
• the sovereignty of the state therefore cannot in
fact and in reality be considered absolute.
certain restrictions are in the picture:
a. limitations imposed by the very nature
of membership in the family of
nations;
b. limitations imposed by treaty
stipulations
“pecularities of constitutional structure are without
international significance to other states”
» when a treaty conflicts with the constitution of
one of the parties, the former is nevertheless
internationally binding although
unenforceable under municipal law
» under these circumstances, the state called
upon to perform its obligations may ask for
revision of the treaty, amend its constitution to
make it conform to the treaty requirement, or
pay damages to the other parties for its inability
to comply with its commitments
REBUS SIC STANTIBUS
≈ “things standing thus”
» equivalent exception to the maxim pacta sunt
servanda
When a fundamental change has occurred with regard
to a fact or situation existing at the time when the treaty
was entered into, it may be invoked as a ground for
terminating or withdrawing from the treaty if:
1) the existence of that fact or situation
constituted an essential basis of the consent of
the parties to the treaty
2) the effect of the change is to transform in an
essential respect the character of the
obligations undertaken in the treaty
limitations of rebus sic stantibus:
1) it applies only to treaties of indefinite duration
2) vital change must have been unforeseen or
unforeseeable and should not have been
caused by the party invoking the doctrine
3) must be invoked w/in a reasonable time
HN Notes Public International Law – Atty. Alcantara 37

4) cannot operate retroactively upon the SUBJECT has a particular reference to nationals of
provisions of the treaty already executed prior monarchial regimes [British subject who may be a citizen
to the change of circumstances of UK or one of its colonies]

Treaty Interpretation Acquisition of Nationality

» to give effect to the intention of the parties
» usual canons of statutory constructions are BY BIRTH
employed in the interpretation: JUS SOLI JUS SANGUINIS
o specific provisions must be read in where he is born nationality of parents
light of the whole instrument BY NATURALIZATION
o words used should be given their a process by which a foreigner acquires, voluntarily
natural meaning unless a technical or by operation of law, the nationality of another
word is used state
o doubts should be resolved against DIRECT DERIVATIVE
imposition of obligations and in favor 1) individual 1) wife of the
of freedom and sovereignty proceedings naturalized
» resort may be made to extrinsic aids 2) special act of husband
legislature 2) minor children
Termination of Treaties 3) collective of naturalized
[VENILDE AWA] change of parent
1) vital change of circumstances under the nationality as a 3) alien woman
doctrine of rebus sinc stantibus result of cession upon marriage
2) expiration of the term, which may be fixed or or subjugation to a national
subject to a resolutory condition 4) adoption of
3) novation orphan minors
4) impossibility of performance as nationals of
5) loss of the subject-matter the state where
6) desistance of the parties, through express they are born
mutual consent; deseutude, or the exercise of
the right of denunciation (or withdrawal), when Multiple Nationality
allowed accomplishment of the purpose
» results from the concurrent application to him
7) extinction of one of the parties if the treaty is
of the municipal laws of the states claiming him
bipartite as their national
8) avoidance of the treaty
9) outbreak of war EXAMPLE: A child born in the US of Filipino parents would
10) accomplishment of the purpose
be a US citizen under the jus soli doctrine and at the
same time a PH citizen under the jus sanguinis doctrine
under the PH Constitution.
CHAPTER 15: NATIONALITY AND STATELESSNESS DOCTRINE OF INDELIBLE ALLEGIANCE
≈ an individual may be compelled to retain his
original nationality notwithstanding that he has
Introduction
already renounced or forfeited it under the
» Ordinarily, the individual can participate in
laws of a second stare whose nationality he
international relations only through the
has acquired
instrumentatility of the state to which he
» BY CONTRAST, a state may allow any of its
belongs. As when his government asserts a
nationals to remain as such even if he may
diplomatic claim on his behald for injuries he
have acquired anotjer nationality, as where he
may have suffered in foreign jurisdiction
is conferred an honorary citizenship by a
» this remedy is generally not available to him if
foreign government
he is a stateless for there would no entity with
international personality to intercede for him
Loss of Nationality
NATIONALITY is the tie that binds an individual to his state,
from which he can claim protection and whose laws he
is obliged to obey VOLUNTARY INVOLUNTARY

CITIZENSHIP has a more exclusive scope in that it applies

only to certain members of the state accorded more renunciation
privileges than the rest of the people who also owe it - express or forefeiture
implies
allegiance

[During the american regime, Filipinos and Americans request for

substituiton
are considered nationals of US but Filipinos are not release
granted citizenship]

Source: International Law (2003 Edition) by Justice Isagani A. Cruz

HN Notes Public International Law – Atty. Alcantara
» both cases of voluntary loss usually precede
the acquisition of new nationality
» forfeiture - as a regult of some disqualification
or prohibited act
» substitution - of one nationality to another
following a change of sovereignty or any act
conferring derivative naturalization
Conflict of Nationality Laws
Hague Convention of 1930 on the Conflict of Nationality
Laws:
➔ Article 1. It is for each State to determine under
its own law who are its nationals. This law shall
be recognised by other States in so far as it is
consistent with international conventions,
international custom, and the principles of law
generally recognised with regard to
nationality.
➔ Article 2. Any question as to whether a person
possesses the nationality of a particular State
shall be determined in accordance with the
law of the State.
➔ Article 3. Subject to the provisions of the
present Convention, person having two or
more nationalities may be regarded as its
national by each of the States whose
nationality he possesses.
➔ Article 4. A State may not afford diplomatic
protection to one of its national against a State
whose nationality such person also possesses.
➔ Article 5. Within a third State, a person having
more than one nationality shall be treated as if
he had only one. Without prejudice to the
application of its law in matters of personal
status and of any conventions in force, a third
State shall, of the nationalities which any such
person possesses, recognise exclusively in its
territory either the nationality of the country in
which he is habitually and principally resident,
or the nationality of the country with which in
the circumstances he appears to be in fact
most closely connected.
➔ Article 6. Without prejudice to the liberty of a
State to accord wider rights to renounce its
nationality, a person possessing two
nationalities acquired without any voluntary
act on his part may renounce one of them with
the authorisation of the State whose nationality
he desires to surrender. This authorisation may
not be refused in the case of a person who has
his habitual and principal resident abroad, if
the conditions laid down in the law of the State
whose nationality he desires to surrender are
satisfied.
EXAMPLE
where a person possesses both PH and US nationality:
ü his claim to PH nationality shall be decided on
the basis alone of PH laws
ü if he claims American nationality, it shall be
decided on American law alone
û but if the issue of his real nationaloity is raised in
a 3RD STATE, say Spain, the laws of Spain is
inapplicable because he does not claim
Spanish nationaloty
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
38
o in this situation, Spain shall apply the
principle of effective or active
nationality, under which the dual
natiional shall be considered the
national exclusively of the state with
which he is mostly connected
Statelessness
STATELESSNESS
≈ the condition or status of an individual who is
born w/o any nationality or who loses his
nationaloty w/o retaining or acquiring another
Example#1: a child born in a state where only the jus
sanguinis is recognized to parents whose state observes
only the jus soli
Example#2: an individual renouncng his original
nationality in order to be naturalized in another state is
subsequently denaturalized and is thereafter denied
repatriation by his former country
➥ In case of naturalization, the wife and children
retain their existing nationality if they are also
not naturalized
➥ the wife will acquire her husband’s new
nationality, if permitted, only with her own
consent
➥ The adopted child’s existing nationality is also
not lost if he does not acquire the adopter’s
nationality
In other cases, it is provided that children shall have the
nationality of the state of their birth whenever their
parents are:
1) unknown
2) stateless or of unknown nationality
3) a father who is stateless or of unknown
nationality and a mother who is a national of
the state where they are born
Rights of stateless persons:
1) right to religion and religious instruction
2) access to courts
3) elementary education
4) public relief and assistance
5) rationing of products in short supply
6) treatment no less favorable than that
accorded to aliens
[Source: Covenant Relating to the Status of Stateless
Persons, 1954]
CHAPTER 16: TREATMENT OF ALIENS
† Every state has the right, as inherent in sovereignty and
essential to its own security and existence, to determine
in what cases and under what conditions foreigners may
be admitted to its territory.
Limitation: Once it decides to accept them, its
competence as territorial sovereign is limited
by the requirement that they be treated justly,
in accordance with the law of nations.
HN Notes Public International Law – Atty. Alcantara
9 If this duty is not observed, the alien
and his state would have a valid
cause for complaint.
† The alien cannot as a rule claim a preferred position
vis-à-vis the national of the state where he is at best only
a guest.
r Thus, the foreigner may not enjoy the right to
vote, to run for public office, to exploit natural
resources or to engage in certain businesses
regarded as vital to the interests of the local
state.
ë Denial of such prerogatives is a
sovereign act of the local estate to
which the foreigner must be
prepared to submit.
† It is also an accepted principle that the state is NOT an
insurer of the life or property of the alien when he is within
its territory.
ë Like all individuals exposed to the incidents of
social intercourse, he is expected to take the
customary precautions for the protection of his
own rights and to avail himself of the usual
remedies when these rights are violated.
THE DOCTRINE OF STATE RESPONSIBILITY
Ü There are instances when the alien can claim a more
favored position than the national of the local state and,
in proper cases, hold the state liable for injuries
committed against him while within its territory. Such
instances are governed by the doctrine of state
responsibility.
Under this doctrine, a state may be responsible for:
(a) An International delinquency
(b) Directly or indirectly imputable to it
(c) Which causes injury to the national of another
state
G Liability will attach to the state where its treatment of
the alien falls below the international standard of justice
where it remiss in according him the protection or redress
that is warranted by the circumstances.
Purpose: To assure the traveler that when his rights are
violated in a foreign state, he will not be denied any
remedy simply because he is not one of the nationals.
The International Standard of Justice
à a concept of controversial content that has defied
precise definition
à the standard of the reasonable state, that is, as
referring to the ordinary norms of official conduct
observed in civilized jurisdictions.
When Deemed Below the Standard
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
39
§ Deemed not satisfied if the laws of a state are
intrinsically unjust, as when there is a marked
disproportion between the degree of an
offense and the penalty imposed for it
E.g. When a minor crime like petty theft is
punished with death
§ If the state authorizes the summary decision of
contentious cases without the observance of
the usual rights to notice and hearing and
other generally accepted requirements of due
process.
û Where the laws of the state fall below the
international standard of justice, it is no defense that
they are applicable not only to aliens but as well, and
equally, to the nationals of that state.
o The relations of that state with its own nationals
are purely municipal; international law is
involved in its relations with the nationals of
other states.
Ê Hence, while the national may not
demand, say, the right of
confrontation if this is not granted by
the local law, the foreigner can.
§ This is the view more
generally favored as
against the so-called
doctrine of equality of
treatment.
Test of International Standard of Justice
¨ Applied in the Chattain Case
Summary of Chattain Case
• The US filed a claim on behalf of a national who
was allegedly arrested, tried and sentenced
illegally by the Mexican Government, and
subjected to inhuman treatment in jail.
• The arbitrators upheld the charges filed by the
claimant.
• It was declared that: “Bringing the
proceedings of Mexican authorities to test of
international standards…there can be no
doubt of their being highly insufficient. Inquiring
whether there is convincing evidence of these
unjust proceedings…the answer must be in the
affirmative. Since this is a case of alleged
responsibility of Mexico for injustice committed
by its judiciary, it is necessary to inquire whether
the treatment of Chattain duty, or to an
insufficiency of government action
recognizable by every unbiased man…; and
the answer here again can only be an
affirmative.”
Failure of Protection or Redress
† Even if its laws conform to the international standard
of justice, the state may still be held liable if it does not
HN Notes Public International Law – Atty. Alcantara 40

make reasonable efforts to prevent injury to the alien or, constitution and laws of
having done so unsuccessfully, fails to repair such injury. the state.
Ê Furthermore, even if it did take reasonable
precautions, the state would still be held liable Exhaustion of Local Remedies
if it thereafter does not employ the necessary Even assuming the liability of the state for an
diligence to arrest and punish the malefactors international delinquency, its enforcement cannot be
or otherwise redress the wrong committed. claimed by the injured foreigner unless he first exhausts
all available local remedies for the protection or
³ The degree of diligence required must, of course, vary vindication of his rights.
with the circumstances of every case.
General Rule:
Noyes Case: • Corollary of the principle that the foreigner must
Republic of Panama was not held liable for injuries accept the institutions of the state as he finds them.
sustained by an American national from an unruly and Generally accepted view state must be given an
intoxicated crowd in a small village, it have been show opportunity to do justice in its own regular way and
that the local police force of three members was without unwarranted interference with its
reinforced when disorder was apprehended, that a sovereignty by other states.
policeman and the police chief himself tried actively to • As where there is a judicial remedy, it must be
protect Noyes when he was attacked, and that it was sought; only if it is sought in vain does diplomatic
not possible to pinpoint the culprits in view of the interposition become proper.
tumultuous nature of the incident.
Exception:
Youmans Case: This requirement may be dispensed with if:
Compensation was awarded to the US, where it was 1. No remedies to exhaust, as where there are laws
shown that the very troops sent to disperse a Mexican intrinsically defective or
mob joined it in killing a number of Americans. 2. there is laxity or arbitrariness in their enforcement,
or
Galvan Case 3. Where the courts are corrupt or
The reason for holding the United States liable for the 4. where there is no adequate machinery for the
killing of Mexican in Texas was the unreasonable delay administration of justice
in his prosecution , which dragged inconclusively for six 5. acts of state which are not subject to judicial
years. review

Janes Case: Resort to Diplomatic Protection

Mexico was ordered to pay damages to the United He may then avail himself of the assistance of his state,
States, where it appeared that eight years had already only if he has a state. Otherwise, he will have no party to
elapsed and the known murderer of an American represent him, and he by himself, being a mere
national had not yet been arrested and punished. individual, cannot institute his claim in his own name.

R Responsibility does not immediately attach to the In theory, any injury to an alien is a violation not of his
state upon a showing of failure to prevent or redress own personal right but of the right of his state to have its
an injury to aliens. nationals protected whenever they are in a foreign
country.
Distinction is made between direct and indirect state
responsibility:
If Stateless: then damnum absque injuria and cannot be
the subject of diplomatic protection.
Direct State Indirect State
Responsibility Responsibility
Where the international Where the offense is When it is nationality required to exist:
delinquency was committed by inferior Tie of nationality is required to exist from the time of injury
committed by superior government officials or, until the time the international claim is finally settled.
government officials or more so, by private Once this tie is broken, the claim itself is deemed
organs like the chief of individuals, the state will automatically debated.
state or the national be held liable only if, by
legislature, liability will reason of its indifference
attach immediately as in preventing or New Rule / Growing view in the international community:
their acts may not be punishing it, it can be • the individual as such should be allowed to institute
effectively prevented or considered to have an international claim against a foreign state for
reversed under the connived in effect in its violation of his own personal rights.
commission.

Source: International Law (2003 Edition) by Justice Isagani A. Cruz

HN Notes Public International Law – Atty. Alcantara
• United Nations may file a diplomatic claim on
behalf of its officials, as affirmed in the case of
Count Folke Bernadotte.
• Under the European Convention on Human rights,
European commission on Human rights and also
contracting states other than the state of the
injured individual may bring alleged infractions of
the convention before the European court of
Human rights.
Enforcement of Claim
International claim for damages may be resolved
through:
1. negotiation,
2. good officers ,
3. arbitration and
4. judicial settlement
5. Hostile and forcible measures
In the event that the responsibility of the state is
established or acknowledged, the duty to make a
reparation will arise.
Such repatriation may take the form of:
1. restitution or
2. if not possible, satisfaction,
3. compensation
4. or all three of these together.
Settlement may consist of restoration or replacement of
the object of the offense, a formal apology by the
delinquent state and payment of damages.
Avoidance of State Responsibility
The doctrine of state responsibility is applied more
frequently to tortuous rather than contractual liability
because of the unwillingness of most states to act as
“collection agencies” for their nationals.
N Nevertheless, to avoid the intervention of the
alien’s state in contracts of this nature, the local
state sometimes incorporates therein what is
known as the ,Calvo clause.
Calvo Clause- The alien waives or restricts his right to
appeal to his own state in connection with any claim
arising from the contract and agrees to limit himself to
the remedies available under the laws of the local state.
Š may be enforced as a lawful condition to the
contract
Š may not be interpreted to deprived the alien’s
state of the right to protect or vindicate his interests
in case they are injured in another state as such
waiver can legally be made by him but by his own
state.
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
41
A typical Calvo clause follows:
All persons who, as employees in the execution
considered as Mexicans in all matters within the Republic
of Mexico, concerning the execution of the work and
fulfillment of the contract … are consequently deprived
of any rights as aliens, and under no conditions shall the
intervention of foreign diplomatic agents be permitted,
in any matter related to this contract.
United States (North American Dredging Co.) v. Mexico
Q: May an alien lawfully make such promise as such in
the Calvo doctrine?
A: The Commission holds that he may, but at the same
time holds that he cannot deprive the government of his
nation of its undoubted right of applying international
remedies to violations of international law committed to
his damage. Such government frequently has a larger
interest in maintaining the principles of international law
that in recovering damage for one of its citizens in a
particular case, and manifestly such citizen cannot by
contract tie in this respect the hands of his government.
Exclusion of aliens
The state may also avoid liability to aliens by refusing
their admission.
Š this is not regarded as sound policy because it
would provoke retaliation in kind and ultimately
isolate its nationals from the rest of the
international community.
The practice of most states now is to:
- regulate the immigration and stay of aliens.
- and provide for their deportation whenever
warranted
- arrangements may also be made, in proper
cases, for the extradition of alien fugitives
Deportation – The removal of an alien out of the country,
simply because his presence is deemed inconsistent with
the public welfare, and without any punishment being
imposed or contemplated, either under the laws of the
country out of which he is sent, or under those of the
country to which he is taken.
Exclusion - The denial of entry to an alien.
Harvey v. Santiago
- Every sovereign power has the inherent power to
exclude aliens from its territory upon such
grounds as it may deem proper for its self-
preservation or public interest.
- The power to deport aliens is an act of state.
- It is a police measure against undesirable aliens
whose continued presence in the country is
found to be injurious to the public good and the
domestic tranquility of the people.
HN Notes Public International Law – Atty. Alcantara
Extradition - the surrender of a person by one state to
another state where he is wanted for prosecution or, if
already convicted, for punishment
EXTRADITION DEPORTATION
Effected at the request Unilateral act of the local
of the state of origin state
based on offenses based on offenses
generally committed in generally committed in
the state of origin. the state of origin.
Return of the fugitive to Undesirable alien may
the state of origin be deported to a state
other than his own or the
state of origin.
Basis of Extradition.
Ê Required only if there is a treaty between the
state of refuge and the state of origin.
Absence of such a treaty
Ê the local state has every right to grant asylum to
the fugitive and to refuse to deliver him back to
the latter state even if he is its national.
Notwithstanding this right,
Ê The surrender requested is still effected by the
state of asylum, it is not because of a
demandable duty on its part but in pursuance of
policy or as a gesture of comity.
Fundamental Principles of Extradition
1) Extradition is based on the consent of the state
asylum as expressed in a treaty or manifested as an
act of goodwill.
2) Under the principle of specialty, a fugitive who is
extradited may be tried only for the crime specified
requested for extradition and included in the list of
offenses in the extradition treaty.
Š When charged with any other offense, the State
of Refuge – has a right to object;
Š nevertheless, the prosecution will be allowed if
the extraditing state agrees or does not
complain.
3) Any person may be extradited, whether he be a
national of the requesting state, of the state of
refuge or of another state.
The practice of many states now, however, is not
to extradite their own nationals but to punish them
under their own laws in accordance with the
nationality principle of criminal jurisdiction
Case of Tourville
British subject who, after murdering his wife in the
Tyrol, escaped to his home in England but was
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
42
extradited back to Austria where he was
convicted and hanged.
(4) Political and religious offenders are generally not
subject to extradition.
Š Offense of a political character – there must be two
or more parties in the state, each seeking to
impose the government of their own choice on the
other.
o Example: an admitted anarchist who fled
to England after bombing a Paris restaurant
and a military barracks was held to be
extraditable since he was considered not a
political offender but an enemy of all
governments
» Under the attentat clause, murder of the head of
state or any member of his family is not to be
regarded as a political offense for purposes of
extradition.
» Under the Genocide Convention – Crime of
genocide, which may consist of any of the
following acts, committed with intent to destroy, in
whole or in part, a national, ethnical, racial or
religious group as such:
1. Killing members of the group.
2. Causing serious bodily or mental harm to
members of the group.
3. Deliberately inflicting on the group
conditions of life calculated to bring about
its physical destruction in whole or in part.
4. Imposing measures intended to prevent
births within the group.
5. Forcibly transferring children of the group to
another group.
» Universal Declaration of Human Rights - Everyone
has the right to seek and enjoy in other countries
asylum from persecution.
» This right may not be invoked in the case of
prosecution genuinely arising from non-political
crimes or from acts contrary to the purposes and
principles of the United Nations.
(5) Absence of special agreement – The offense must
have been committed within the territory or against the
interests of the demanding state.
Example: Extradition of one Nillins to Germany by
Great Britain upon a showing that he had sent from
England forged bills of exchange to a Berlin
Company as payment for goods he has ordered and
subsequently received. Although he as in England all
the time, it was held that he had obtained the goods
under false pretenses in Germany and was,
therefore, subject to its laws.
HN Notes Public International Law – Atty. Alcantara
(6) Rule of double criminality - Act for which the
extradition is sought must be punishable in both the
requesting and requested states.
Procedure of Extradition
If surrender of a fugitive is sought a request for his extradition is Situation – where the disagreement has not yet ripened
presented through diplomatic channels to the state of refuge.
(accompanied by the necessary papers relative to the identity of sufficiently formulated and defined
the wanted person and the crime he is alleged to have
committed or of which he has already been convicted)
Upon receipt of this request - State of refuge will conduct a a treaty or the ascertainment of the
judicial investigation to ascertain if the crime is covered by the
extradition treaty and if there is a prima facie case against a
fugitive according to its own laws.
A warrant of surrender will be drawn and the fugitive will be discriminating against the nationals of
delivered to the state of origin.
There have been instances when nationals of the state
seeking the fugitive have abducted him in the state of
refuge.
Example: in the case of Adolf Eichmann, who was
kidnaped in Argentina by Israeli agents and taken to
Israel, where he was subsequently executed of
murder of six million Jews in World War II.
Such acts are not allowed under international law as
they constitute a violation of the territorial integrity of the
state of refuge.
If the Abduction or arrest of the wanted individual had
been effected by or with the help of the nationals of the
state of refuge itself as in the famous Savarkar Case:
– A prisoner en route to India escaped in a French port
but was apprehended by a local policeman and
delivered back to the British authorities. When France
later demanded the prisoner's return on the ground that
a formal request for his extradition should have been
made, it was held that Great Britain was under no
obligation to comply.
Secretary of Justice v. Lantion
The Supreme Court originally sustained the demand of
Mark Jimenez to be informed of the charges against him
in the U.S request for his extradition. On motion for
Reconsideration, however, the decision was reversed,
also by an 8-6 vote, on the ground that such charges
were still being evaluated and no complaint for
extradition had as yet been filed in court.
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
43
CHAPTER 17: SETTLEMENT OF INTERNATIONAL DISPUTES
International Dispute – an actual disagreement
between states regarding the conduct to be taken by
one of them for the protection or vindication of the
interests of the other
into a full-blown conflict or the issues have not yet been
» A situation is the initial stage of dispute.
An issue is:
a) Legal – if it involves justiciable rights based on
law or fact susceptible of adjudication by a
judicial or arbitral tribunal
- Example: conflict on the interpretation of
boundaries of the adjacent states
b) Political – if it cannot be decided by legal
processes on the basis of the substantive rules
of international law because the differences of
the parties spring from animosities in their
mutual attitudes rather than from an
antagonism of legal rights.
- Example: if one state, in the exercise of its
sovereign rights, enacts immigration laws
another state over the latter’s protests.
- SOLUTION: not in court but through
diplomacy.
Methods of Settling Disputes
Disputes are required to be settled, one of the basic
principles of the United Nations, “by peaceful means in
such manner that international peace and security, and
justice, are not endangered.”
International law has not yet been able to provide an
adequate machinery for the peaceful settlement of
disagreements among states by compulsory process
binding on the contending parties.
The closest approach in the international society to an
adequate machinery for peaceful settlement of
disagreements is:
1. International Court of Justice, but its jurisdiction is
not general or obligatory; indeed, its competence
to act is dependent on the consent of the parties
involved.
2. Security Council, whose powers are also markedly
limited,
except where international peace and security
are endangered.
Ê In this case, intervention may be forcibly
imposed by it motu proprio, even then its
effectiveness may be hampered by
disunity among the Big Five, each of
which has the power of veto.
3. General Assembly, large and politics-oriented
membership generally prevents an objective and
dispassionate solution to an international conflict.
HN Notes Public International Law – Atty. Alcantara
Where the issues dividing them become irreconcilable,
they may find it necessary to resort to the ultimate
solution in the illogical arbitrament of war.
Amicable Methods
Amicable methods of settling disputes are: negotiation,
inquiry, good offices, mediation, conciliation, arbitration,
judicial settlement, resort to regional and international
organizations.
Except for negotiation, they all involve the participation
of a third party, such as a state or a prestigious statesman
or jurist. May also be availed of by the parties
independently of the United Nations, upon its
recommendation or direction or with active
participation.
1. Negotiation - is the discussion undertaken by the
parties themselves of their respective claims and
counterclaims with a view to their just and orderly
adjustment.
Š Where the talks prosper and agreement is
reached, it is usually formalized in a treaty
or, more directly, effected through the
rectification of the injury caused to the
claimant state.
2. Inquiry is an investigation of the points in
question, on the theory that their elucidation will
contribute to the solution of the differences
between the parties.
Š Their clarification by an impartial and
conscientious body can limit if not entirely
remove the areas of disagreement.
Š Findings of the party making the inquiry are
not conclusive upon the disputing states
but they nevertheless may exert a strong
moral influence in the settlement of the
conflict.
Š Example: Dogger Bank Case, Russian
vessels fired in a fog on the English fishing
fleet off Dogger Bank during the Russo-
Japanese War and caused the death of
two fishermen, injuries to others and
considerable destruction to property. Due
to the approach of Japanese torpedo
boats, and a commission of inquiry was
created to verify this claim. No torpedo
boats. Russia agreed to pay £65,000 to
Great Britain.
3. Good offices method by which a third party
attempts to bring the disputing states together in
order to enable them to discuss the issues in
contention and arrive at an agreement.
Š Usually employed when the parties are no
longer on speaking terms, severed
diplomatic relations or actually
commenced hostilities.
4. Mediation, means of which the third party does
not merely provide the opportunity for the
antagonists to negotiate but also actively
participates in their discussion in order to
reconcile their conflicting claims and appease
their feelings of resentment.
Š Suggestions of the mediator are merely
persuasive, may be rejected without
offense by the parties to the dispute.
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
44
Š More active involvement than good offices
5. Conciliation calls for the active participation of a
third party in the attempt of the disputants to
settle their conflict,
Š recommendations made by it are likewise
not binding.
Š Unlike in mediation, the services of the
conciliator are not offered by the third
party but solicited by the parties in dispute.
6. Arbitration the solution of a dispute by an
impartial third party, usually a tribunal created by
the parties themselves under a charter known as
the compromis, which will provide for, among
others, the composition of the body and the
manner of the selection of its members, its rules
of proceedings and sometimes even the law to
be applied by it, and the issues of fact or law to
be resolved.
Š Proceedings are essentially judicial and the
award ism by previous agreement, binding
on the parties to the dispute.
This method is similar to judicial settlement, where the
disputes submitted for adjudication are legal rather than
political:
Judicial Settlement Arbitration
pre-existing and an ad hoc body created
permanent body and filled by the parties
to the dispute themselves
Jurisdiction is usually Voluntary
compulsory
Law applied by the May be limited by them
tribunal is usually in arbitration
compulsory proceedings
Judicial settlement of international disputes now
entrusted to the International Court of Justice.
Š The jurisdiction of the Court is not compulsory but
dependent on the agreement of the parties to
submit to and be bound by tis decisions.
Š Consent may be manifested in a treaty
containing what is called the:
1. “compromissary clause,” empowers the
Court to settle disputes arising from the
interpretation or the application of such
treaty, or
2. “optional jurisdiction clause” in Art.36 of the
Statute which provides that:
(1) The States parties to the present statute may
at any time, declare that they recognize as
compulsory ipso facto and without special
agreement, in relation to any other state
accepting the same obligation, the jurisdiction
of the Court in all legal disputes concerning:
A. Interpretation of a 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 to be
made for the breach of an international
obligation.
HN Notes Public International Law – Atty. Alcantara
(2) Declarations may be made unconditionally or
on condition of reciprocity on the part of several or
certain states, or for a certain time.
If any party to a case fails to perform the obligations
incumbent upon it under a judgment rendered by the
Court, other party may have recourse to the Security
Council which may,
1. if it deems necessary, make recommendations
or
2. decide upon measures to give effect to the
judgment
3. this does not preclude the employment of
other means directly by the other party such
as:
a) Announcement of fact of the fact of
noncompliance
b) Appeal to world opinion to persuade the
losing litigant to abide by the decision.
Action by regional organizations - may resorted to by the
parties on their own volition or taken by the body itself at
its own instance if allowed by agreement of the
members.
One of the declared objectives of Association of the
South East Asian Nations (ASEAN), is “to promote peace
and stability through abiding respect for justice and the
rule of law in the relationship among countries of the
region and adherence to the principles of the United
Nations Charter.”
Hostile Methods
Where the pacific methods of settling disputes are
unsuccessful, states sometimes find it expedient to resort
to hostile methods.
These methods are not only unfriendly but may even
involve illegal and coercive acts and are usually
imposed upon weak countries by strong powers.
Regarded as a mild alternative compared to war, in the
sense that they may avoid the necessity of creating a
more serious state of hostilities which might not be
justified by the nature of the dispute. These are:
retorsions, reprisals and intervention.
1. Retorsion is any action taken in “retaliation where
the acts complained of do not constitute a legal
ground of offense but are rather in the nature of
unfriendly acts but indirectly hurtful to other
states.”
Ê The act of retaliation is unfriendly but not
illegal and may be in kind or of a different
nature than the act that provoked it.
Ê Example: Severance of diplomatic or
consular relations, suspension of
commercial intercourse, boycott,
stoppage of travel to the other state,
denunciation of treaties, imposition of
higher tariffs and other trade barriers,
currency restrictions, denial of loans and
withdrawal of privileges previously enjoyed,
recognition of a rival government, and
adverse propaganda.
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
45
2. Reprisals, “are an act of self-help on the part of
the injured state, responding after an unsatisfied
demand to an act contrary to international law
on the part of the offending state.
Ê They have the effect of suspending
momentarily in the relations of the two
states the observance of this or that rule of
international law.
Ê Limited by the experience of humanity and
the rules of good faith.
Ê Would be Illegal if a previous act contrary
to international law had not furnished the
reason for them. They aim to impose on the
offending state reparation for the offense
or the return to legality in avoidance of new
offenses.”
Naulilaa Incident Arbitration, during World War I
a party of German officials and officers crossed
into the neutral Portuguese colony of Angola to
discuss the purchase of food supplies from the
Portuguese. The Germans attacked and
destroyed certain forts and posts in Angola.
Purely fortuitous, being the result of
misunderstanding and “of a certain impudence”
on the part of the German officials. Adding that
“there has been evident disproportion between
the incident of Naulilaa and the six acts of
reprisals which followed. The tribunal concluded
that the reprisals were unlawful, in view of the
lack of sufficient occasion, of previous demand
and of admissible proportion between the
alleged offense and the reprisals taken.
More common forms of reprisals:
• display of force – U.S. Mediterranean Fleet
proceeded to and deployed along the coasts
of Turkey in 1903 pending compliance with the
demand for the return of an American national
kidnaped by a Turkish bandit
• occupation of territory – Italy seized the Greek
island of Corfu in 1923 for the murder of certain
Italian officers in Greece
• embargo – detention by the state seeking
redress of the vessels of the offending state or
its nationals, whether such vessels are found in
the territory of the former or on the high seas
• pacific blockade – vessels of the offending
state are prevented from entering or leaving its
ports by the ships of the state seeking redress,
as was done by the Great Powers against
Greece in 1886
The United Nations
United Nations may be asked or may decide on its own
authority to take a hand in its settlement.
§ This task is addressed principally to the Security
Council but may, when the occasion requires,
be taken over by the General Assembly under
conditions.
HN Notes Public International Law – Atty. Alcantara
Security Council shall have jurisdiction to
intervene in:
a) all disputes affecting international peace and
security
b) all disputes which, although coming under the
“domestic jurisdiction clause,” have been
submitted to it by the parties for settlement.
(1) Security Council itself, on its own motion.
(2) General Assembly
(3) Secretary-General
(4) Any Member of the United Nations
(5) Any party to the dispute, provided that in
the case of non-Members of the United
Nations,
they should accept in advance, for the
purposes of the dispute, the obligations of
pacific settlement under the Charter.
The Charter of the United Nations provides that the
Security Council shall when it deems it necessary, call on
the parties to settle the dispute by any peaceful means
in their own choice.
Ê Unable to: Security Council may recommend
appropriate measures or methods of
adjustment, taking into consideration:
(a) any amicable measures already
adopted by the parties
(b) legal disputes should as a rule be
referred to the International Court of
Justice
Ê Unavailing – Security Council may recommend
such actual terms of settlement as it may
consider appropriate.
o This last step is nature of a compulsory
settlement of the dispute which the
parties are under obligation to abide
by in the interest of international
peace and security.
Ê Rejected by any of the parties: Security Council
is empowered to take more drastic steps, to
wit:
(1) Preventive action - it may adopt such
measures not involving the use of
armed force,
Examples: complete or partial
interruption of economic relations – rail,
sea air, postal, telegraphic, radio and
other means of communication, and
severance of diplomatic relations.
(2) Enforcement action - take such action
by air, sea or land forces as may be
necessary to maintain or restore
international peace and security.
» To enable the United Nations to take urgent military
measures, members shall hold immediately
available national air-force contingents for
combined international enforcement action.
» The strength and degree of readiness of these
contingents and plans for their combined action
shall be determined, within the limits laid down in
the special agreement or agreements referred to
in Article 34, by the Security Council with the
assistance of the Military Staff Committee.
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
46
Military Staff Committee – consists of the chiefs of
staff of the permanent members of the Security
Council or their representatives.
Š It is supposed to advise and assist the Security
Council on all questions relating to its military
requirements for the maintenance of
international peace and security, the
employment and command of forces
placed at its disposal, the regulation of
armaments, and possible disarmaments.
Š It shall also be responsible under the Security
Council for the strategic direction of any
armed forces placed at the disposal of the
said Council.
Š Some conflicts where the Security Council
has intervened:
o Palestine and Israel
o India and Pakistan
o Indonesia and the Netherlands
o North and South Korea
o Congolese Republic and the
Katangans
o Britain, France and Israel against Egypt
on the Suez Canal in 1956
War between the Jews and the Arabs
There is always the possibility that failure of unity among
the Big Five will render the Security Council impotent in
the solution of international disputes.
Š Recognizing this, the General Assembly
adopted the “Uniting for Peace Resolution,”
which provides that “if the Security Council,
because of lack of unanimity of the permanent
members, fails to exercise its primary
responsibility for the maintenance of peace
and security in any case where there appears
to be threat to the peace, breach of peace,
or act of aggression, the General Assembly
shall consider the matter immediately with a
view to making recommendations to the
members for collective measures, including in
the case of breach of the peace of act of
aggression, the use of armed forces when
necessary, to maintain or restore international
peace and security.“
Š If not in session: General Assembly may meet in
emergency special session within twenty-four
hours of the request therefor either by any nine
members of the Security Council or by a
majority of the members of the United Nations.
Š Conformably, the General Assembly provided
for the establishment of an international
“police force under the United Nations
command to supervise the area involved in the
Suez Canal crisis
The force is limited in its operations to the extent that
consent of the parties concerned is required under
generally recognized international law.
Example:
Invasion of Iraq by the combined forces of the United
States, Britain and Australia provoked world-wide
protests led by France, Russia and China, all members of
the Big Five.
HN Notes Public International Law – Atty. Alcantara
Without authorization from the Security Council which
wanted to give the UN inspection team more time
Iraqi government was concealing.
Unable to get UN permission, the United States
nevertheless began bombarding Iraq, invoking an
earlier inconclusive resolution of the Security Council
adopted after the terrorist attacks in his country.
CHAPTER 18: WAR
War
a. As a specific action – an armed contention
between the public forces of states or other
belligerent communities, implying the
employment of VIOLENCE among the parties
as a means of enforcing their respective
demands upon each other.
b. As a specific status – exists even without the use
of force, as when one state formally refuses to
be governed by the laws of peace in its
relations with another state even if actual
hostilities have not taken place between them.
NOTE: The employment of force by one state against
another does NOT necessarily result in war (e.g. reprisals
like a pacific blockade).
According to Kelsen, the fact war must be ascertained
by the competent authorities.
OUTLAWRY OF WAR
War was originally accepted as a legitimate means of
compulsion provided it was a reaction to an
international delict; it was a just war or bellum justum.
• Just War Theory (Bellum Justum) – deals with
the justification of how and why are wars
fought. It is war believed to have been
commenced based on morally justifiable, and
therefore, in some views, legal grounds.
By contrast, the UN is categorically committed to the
outlawry of war. Its preamble states the organization is
“determined to save succeeding generations from the
scourge of war which twice in our lifetime has brought
untold sorrow to mankind.”
Two instances where the use of force is allowed:
1. In the exercise of the inherent right of self-
defense under conditions prescribed in Article
51.
2. In pursuance of the so-called enforcement
action that may be decreed by the Security
Council under Article 42.
LAWS OF WAR
1. The Declaration of Paris of 1856 concerning
warfare at sea.
2. The Hague Conventions of 1899, concerning
the use of expanding bullets and asphyxiating
gases.
3. The Hague Conventions of 1907 concerning
the opening of hostilities, etc.
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
47
4. The Geneva Convention of 1925 concerning
the use of asphyxiating, poisonous and other
gases of bacteriological methods of warfare.
5. The Geneva Convention of 1929, concerning
the treatment of the sick and wounded and of
prisoners of war.
6. The Declaration of London of 1936 concerning
the use of submarine against merchant vessels.
7. The Geneva Convention of 1949 concerning
the amelioration of the sick and wounded on
land, etc.
8. The Nuclear Nonproliferation Treaty.
These agreements are enforced through: (PRP)
1. Protest lodged by one belligerent, usually
accompanied or followed by an appeal to
world opinion against unlawful acts of warfare
committed by the other belligerent.
2. Reparation for damaged caused by the
defeated belligerents.
3. Punishment of war criminals.
COMMENCEMENT OF WAR
Hague Convention of 1907: Hostilities must not
commence without a previous and explicit warning, in
the form of either a:
a. Reasoned declaration of war; or
b. An ultimatum with conditional declaration.
EFFECTS OF OUTBREAK OF WAR
1. The laws of peace cease to regulate the
relations of the belligerents and are
superseded by the laws of war.
2. Diplomatic and consular relations between he
belligerents are terminated and their
respective representatives are allowed to
return to their own countries.
3. Treaties of a political nature are automatically
cancelled; but those precisely intended to
operate during war are activated. Multipartite
treaties dealing with technical or
administrative matters are merely suspended.
4. Individuals are impressed with enemy
character:
a. Under the nationality test, if they are
nationals of the other belligerent,
wherever they may be.
b. Under the domiciliary test, if they are
domiciled aliens in the territory of the other
belligerent, on the assumption that they
contribution to its economic resources.
c. Under the activities test, if, being
foreigners, they nevertheless participate in
the hostilities in favor of the other
belligerent.
5. Enemy public property found in the territory of
the other belligerents at the outbreak of
hostilities is, with certain exceptions, subject to
confiscation.
• On the other hand. Enemy private
property may be sequestered, subject to
return, reimbursement or other disposition
after the war in accordance with the
treaty of peace.
HN Notes Public International Law – Atty. Alcantara 48

COMBATANTS AND NON-COMBATANTS

Theatre of War Region of War
Combatants Non-combatants The pace where The greater area where
Those who engage Those who do not; those hostilities are actually the belligerents may
directly in the hostilities; who should not be conducted. lawfully engage each
those who may lawfully subjected to attack as other.
wage war and are thus thy are not supposed to
subject to direct attack participate in the actual BELLIGERENT OCCUPATION
from the enemy. fighting. This is one of the incidents of war wherein the belligerent
exercises authority over the hostile territory until its forces
Combatants: voluntarily withdraw or are expelled by the enemy.
1. Members of the armed forces – army, navy, air • This occupations is LIMITED only to the area
force where such authority has been established and
2. Irregular forces – francs tireurs or the guerillas, can be effectively exercised.
provided that: • Belligerent occupation DOES NOT result in
a. They are commanded by a person transfer or suspension of the sovereignty of the
responsible for his subordinates; legitimate government although it may at the
b. They wear a fixed distinctive sign moment be unable to exercise it.
recognizable at a distance; • In the administration of the occupied territory,
c. They carry arms openly; and the belligerent is required to restore and ensure
d. They conduct their operations in public order and safety while respecting, unless
accordance with the laws and absolutely prevented, the laws in force of the
customs of war. country.
3. Levee en Masse (Mass levy). Inhabitants of • The belligerent occupant MAY promulgate
unoccupied territory who, on the approach of new laws, non-political and political, provided
the enemy, spontaneously take arms to resist they do not contravene the generally
the invading troops without having had time to accepted principles of international law.
organize themselves, provided only that they • The political laws are automatically abrogated
carry arms openly and observe the laws and upon the end of the occupation but the non-
customs of war. political laws may continue even after unless
4. The officers and crew of merchant vessels who expressly repealed of modified by the
forcibly resist attack. legitimate government.
• It is permitted for the belligerent occupant to
NOTES: introduce military currency, provided the
• When captured, combatants are entitled to purpose is not to debase the country’s
treatment as prisoners of war. economy.
• Non-combatants do NOT enjoy the identical • Private property cannot be confiscated, but
rights when captured but nevertheless those susceptible of military use may be seized,
protected from inhumane treatment. subject to restoration of compensation when
peace is made.
CONDUCT OF HOSTILITIES • Finally, the occupying state shall be regarded
Three basic principles underlying the rules of warfare: only as administrator and usufructuary of
1. Military Necessity – belligerent, subject to the public buildings, real estate, forests, agricultural
other two principles, employ any amount and estates belonging to the hostile state and
kind of force to compel the compete situated in the occupied territory.
submission of the enemy with the lease possible
lost of lives, time and money. This method POSTLIMINIUM
includes other measures as sieges, According to Vattel it is “that in which persons or things
bombardments, blockades and devastation of taken by the enemy are restored to the former stat on
property. coming actually into power of the nation to which they
2. Humanity – prohibits the use of any measure being.”
that is not absolutely necessary for the • It also imports the reinstatement of the authority
purposes of the war, such as poisoning of wells of the displaced government once control of
and weapons, the destruction of art and the enemy is lost over the territory affected.
property devoted to religious or humanitarian
purposes, etc. NON-HOSTILE INTERCOURSE
3. Chivalry – the basis of such rules as those that Even in the time of war, there are certain relations
require the belligerents to give proper warning between the belligerents which are not strictly hostile.
before launching a bombardment or prohibit 1. Flag of trice – a white flag carried by an
the use of perfidy in the conduct of hostilities. individual authorized by one belligerent to
enter into communications with the other. The
KINDS OF HOSTILITIES bearer (parlementaire) is entitled to inviolability
1. Aerial Warfare as long as he does not take advantage of his
2. Naval Warfare privileged position to commit an act of
3. Land Warfare treachery.

Source: International Law (2003 Edition) by Justice Isagani A. Cruz

HN Notes Public International Law – Atty. Alcantara 49

2. Cartels – agreements to regulate intercourse 3. By the defeat of one of the belligerents

during war on such matters as postal and followed by a dictated treaty of peace or
telegraphic communication, the reception of annexation of the conquered country –
lags of truce, and the exchange of prisoners. surrender conditionally, or unconditionally.
3. Passport – a written permission given by the
belligerent government or its authorized agent NOTE: War is supposed to end with the re-establishment
to the subjects of the enemy state to travel of peace but the precise date is NOT easily fixed in view
generally in belligerent territory. of the different methods of terminating the state
4. Safe-conduct – pass given to an enemy hostilities.
subject or to an enemy vessel allowing • In the interest at least of the neutrals, it is
passage between defined points. certainly desirable that a FORMAL
5. Safeguard – a protection granted by a PROCLAMATION or TREATY OF PEACE indicate
commanding officer either to enemy persons the exact date of the termination of the war.
or property within his command.
6. License of to trade – permission given by the AFTERMATH OF WAR
competent authority to individuals to carry on One of the inevitable consequence of war is the implied
trade even though there is a state of war. This judgment, right or wrong, that the vanquished
may be general and special. belligerent is the guilty part I the dispute that caused the
hositlities.
SUSPENSION OF HOSTILITIES
I. Suspension of Arms – temporary cessation of CHAPTER 19: NEUTRALITY
the hostilities by agreement of the local
commanders for such purposes as the
Neutrality
gathering of the wounded and the burial of the
A state is said to be neutral if it does NOT take part,
dead.
directly or indirectly, in a war between other states.
II. Armstice – suspension of all hostilities within a
certain area (local) or in the entire region of the
However, the compulsions of present-day international
war (general) agreed upon by the belligerent
politics make it difficult for nations to maintain a strictly
governments, usually for the purpose of
impartial attitude on the face of conflicts that, although
arranging the terms of the peace.
they may not be actually parties thereto, will
unavoidably affect their own future and security.
Suspension of Arms Armstice
• The UN Charter obligates member-states to
Purpose is military. Purpose is political. participate in enforcement action in cases of
May be concluded only May be agreed upon by threat to or actual breach of the peace of the
the commanders-in- the local commanders. world.
chief of the agreed
belligerent NEUTRALITY NEUTRALIZATION
governments.
Dependent solely on It is the result of a treaty
Usually in writing. May be oral. the attitude of the wherein the duration
neutral state, which is and the other
III.Cease-fire – an unconditional stoppage of free to join any of the conditions of the
hostilities by order of an international body like belligerents any time it neutralization are
the UN. sees fit. agreed upon by the
IV. Truce – generally regarded as cease-fire with neutralized state and
conditions. other powers.
V. Capitualtion – surrender of military forces, Governed by the This agreement governs
places, or districts in accordance with the rules general law of nations. the conduct of
of military honor. signatories.
Obtains only during war. Intended to operate I
TERMINATION OF WAR
time of peace as well as
1. Simple cessation of hostilities – wherein in time of war.
property or territory in the possession of the
Only states may be Portions of states like
respective belligerents upon the termination of
neutral. islands, rivers and canals
the war is retained by them in accordance with
may be neutralized.
the principle of uti possidetis.
• Uti possidetis – as you possess under law;
LAWS OF NEUTRALITY
territory and other property remains with
1. Declaration of Paris of 1856
its possessor at the end of a conflict,
2. Hague Conventions of 1907
unless otherwise provided for by treaty.
3. The ungratified Declaration of London in 1909.
• VS. Status quo ante – complete
These rules define:
restoration to their former owners of
a. The relations of the belligerent states with the
property or territory that may have
neutral state; and
change hands during the hostilities, with
b. The relations of the belligerent states with the
the exception only of price and booty.
nationals of the neutral state.
2. Conclusion of a negotiated treaty of peace; or

Source: International Law (2003 Edition) by Justice Isagani A. Cruz

HN Notes Public International Law – Atty. Alcantara
RELATIONS OF BELLIGERENY STATES AND NEUTRAL STATES
A neutral state has the right and duty:
a. To abstain from taking part in the hostilities and
from giving assistance for either belligerent;
b. To prevent its territory and other resources from
being used in the conduct of hostilities by the
belligerents; and to
c. To acquiesce in certain restriction and
limitations that the belligerents may find
necessary to impose, especially in connection
with international commerce.
The belligerents are bound:
1. To respect the status of the neutral state –
avoiding any act that will directly or indirectly
involve it in their conflict; and
2. To submit any lawful measure it may take to
maintain or protect its neutrality.
USE OF NEUTRAL TERRITORIES
War activities by or on behalf of any of the belligerents
may not be undertaken in the territory of the neutral
state without infringement of its neutrality.
• This entails the prohibition of movements of the
troops, transport of war supplies, etc. in the
territory of the neutral state. Said acts should be
resisted by the neutral state, with armed force
if necessary and such resistance is not to be
regarded as a hostile act.
• NEVERTHELESS, the use of neutral territory is not
completely barred to the belligerents. (e.g.
passage of sick and wounded troops provided
personnel and materials of war are not also
carried).
• Warships or prizes belonging to belligerents
may pass through the territorial waters of the
neutral state but they may NOT enter neutral
ports, harbors and roadsteads EXCEPT only in
cases of unseaworthiness, lack of fuel or
provisions or stress of weather.
o The usual duration of the sojourn is 24
hours, but may me shortened or
extended, depending on the reason
for entry.
o Where the vessels from both
belligerents are in neutral waters at
the same time, a period of 24 hours
must elapse between the departure
of the first vessel and the second – the
order being determined by their time
of arrival.
o Not more than three vessels from any
belligerent shall be allowed
simultaneously in the same neutral
port or waters.
o Passage of military aircraft belonging
to the belligerents is NOT allowed
across the airspace of a neutral state.
USE OF NEUTRAL FACILITIES AND SERVICES
Neutral states are also prohibited from giving the
belligerents any form of direct assistance in connection
with the conduct of hostilities.
• It is required to take reasonable diligence in
preventing the delivery of vessels constructed
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
50
and armed in its territory for use by any of the
belligerents.
RELATIONS OF BELLIGERENT STATES WITH NATIONALS OF A
NEUTRAL STATE
It is common practice for neutral states to enact
legislation designed to avoid their involvement in foreign
was as a result of the acts of their nationals.
• However, neutral states are free to allow their
nationals to deal, in their PRIVATE CAPACITY,
with any of the belligerents.
• International law considered the relationship as
strictly between the individual and the
belligerent states and whatever hardships may
be suffered by its nationals as a result thereof
must, as a rule, be acquiesced by the neutral
state.
VISIT AND SEARCH
Belligerent warships and aircraft have the right to visit
and search neutral merchant vessels on the high seas for
the purpose of determining whether they are in any way
connected with the hostilities.
• The vessels may be captured as prize if:
a. They are engaged in hostile activities;
b. If they resist visit and search; or
c. If there is reasonable suspicion that they
are liable to confiscation.
• The cargo of the vessels may also be captured
under certain conditions – such as when they
are contraband.
• Prize is NOT confiscated summarily but must be
brought to a prize court for adjudication.
o A prize court is a tribunal established
by a belligerent under its own laws, in
its territory or the territory of its aliens,
and applies rules of international law
in the absence of special municipal
legislation.
• In the Declaration of Paris of 1856, the following
rules on the treatment of sea-borne goods in
time of war were agreed upon:
1. Enemy goods under a neutral flag are NOT
subject to capture, except contraband of
war.
2. Neutral goods under an enemy flag are
NOT subject to capture, except
contraband of war.
CONTRABAND
These are goods which, although neutral property, may
be seized by a belligerent because they are useful for
war and are bound for a hostile destination.
Categories:
1. Absolute Contraband – necessarily useful for
war under all circumstances (e.g. rifles and
ammunitions). These are subject to seizure so
long as they are bound for enemy or enemy-
held territory.
2. Conditional Contraband – those which have
both civilian and military purposes (e.g. food
and clothes). These may be seized only when it
can be shown that they are destined for the
armed forces or the authorities of the
belligerent government.
HN Notes Public International Law – Atty. Alcantara
3. Free list - includes goods useful for war and
bound for the belligerents but exempted from
the law on contraband for humanitarian
reasons (e.g. medicines and medical supplies
for the use of the sick and wounded).
DOCTRINE OF ULTIMATE CONSUMPTION
Goods intended for civilian use which may ultimately
find their way to and be consumed by the belligerent
forces are also liable to seizure on the way.
Condemnation
Contraband are subject to condemnation.
• If they are shipped together with innocent
goods belonging to the same owner, the latter
may also be confiscated under the doctrine of
infection.
o The vessel may also be confiscated if
the contraband in it are more than
one-half of the total cargo be weight,
value, freight or volume.
• Contraband are liable to capture from the
time they leave the port in which they are
loaded and until they reach their final hostile
destination.
• To counteract this subterfuge, belligerents
have applied the doctrine of real destination –
under which the liability of contraband to
capture is determined not by their ostensible
but by their real destination.
• Doctrine of continuous voyage – when the
goods are reloaded at the intermediate port
on the same vessel.
• Doctrine of continuous transport – when they
are reloaded on another vessel or other form of
transportation.
BLOCKADE
It is a hostile operation by means of which the vessels
and aircraft of one belligerent prevent all other vessels,
including those of neutral states, from entering or leaving
the ports or costs of the other belligerent, the purpose
being to shut off the place from international commerce
and communication with other states.
• VS. PACIFIC BLOCKADE – applies only to the
vessels of other states.
• To be valid, a blockade must be:
1. Binding – duly communicated to the
neutral states.
2. Effective – it is maintained by adequate
force so as to make ingress to or egress
from the port dangerous.
3. Established by the proper authorities of the
belligerent government – generally the
head of the state.
4. Limited only to territory of the enemy – NOT
extends to neutral places or international
rivers.
5. Impartially applied to all states alike.
NOTES:
• The liability of a neutral vessel to capture for
breach of blockade is contingent on its
knowledge, actual or presumptive, of the
blockade and continues as long as it is pursued
by the ships of the blockaded port. If the pursuit
Source: International Law (2003 Edition) by Justice Isagani A. Cruz
51
is abandoned or the blockade is lifted capture
of the ship can no longer be effected.
• A vessel found guilty of breach of blockade is
liable to condemnation, and so is the cargo
UNLESS it is proved that at the time it was
shipped, the owner neither knew nor could
have known the intention to violate the
blockades.
UNNEUTRAL SERVICE
This consists of acts, of a more hostile character than
carriage of contraband or breach of blockade, which
are undertaken by merchant vessels of a neutral stated
in aid of any of the belligerents.
According to the Declaration of London, a neutral vessel
is liable to condemnation for unneutral service:
a. If it is making a voyage SPECIAL with a view to
the transport of individual passengers who are
embodied in the armed forces of the enemy or
with a view to the transmission of information in
the interest of the enemy; or
b. If with the knowledge of the owner, or the one
who charters the entire vessel, or of the mater,
it is transporting a military detachment of the
enemy or one or more persons, who, during the
voyage, lend direct assistance to the
operations of the enemy. The cargo, if
belonging to the owner of the vessels is likewise
confiscable.
A neutral vessel is also liable to condemnation and to be
treated as a merchant vessel of the enemy:
a. If it takes a direct part in the hostilities
b. If it is under the orders or control of an agent
placed on board by the enemy government
c. If it is chartered entirely by the enemy
government
d. If it is at the time and exclusively either devoted
to the transport of enemy troops or the
transmission of information in the interest of the
enemy.
The goods belonging to the owner of the vessel are
likewise liable to condemnation.
ANGARY
By the right of angary, a belligerent may, upon payment
of just compensation, seize, use of destroy, in case of
urgent necessity for purposes of offenses or defense,
neutral property found in its territory, in enemy territory,
or on the high seas.
• Requisites:
1. That the property is in the territory under
the control or jurisdiction of the belligerent.
2. That there is urgent necessity for the
taking; and
3. That just compensation is paid to the
owner.
TERMINATION OF NEUTRALITY
1. When the neutral state itself joins the war – the
neutral state will be governed by the laws of
war in its relations with other belligerents and by
the laws of neutrality in its relations with all other
states; or
2. Upon the conclusion of peace – all states will
again be governed by the laws of peace.