PUBLIC INTERNATIONAL LAW

Concepts Obligations
Erga omnes

1. The term erga omnes (Latin: in relation to everyone) in international law has been used as a legal
term describing obligations owed by States towards the community of states as a whole (Vinuya v.
Executive Secretary, G.R. No. 162230, April 28, 2010).

2. The concept was recognized by the ICJ in Barcelona Traction case [(Belgium v Spain) (Second Phase)
ICJ Rep 1970 3 at paragraph 33]: “…an essential distinction should be drawn between the obligations of
a State towards the international community as a whole, and those arising vis-à-vis another State in the
field of diplomatic protection. By their very nature, the former are the concern of all States.
In view of the importance of the rights involved, all States can be held to have a legal interest in their
protection; they are obligations erga omnes.”
“Such obligations derive, for example, in contemporary international law, from the outlawing of acts of
aggression, and of genocide, as also from the principles and rules concerning the basic rights of the
human person, including protection from slavery and racial discrimination.
Some of the corresponding rights of protection have entered into the body of general international law
… others are conferred by international instruments of a universal or quasiuniversal character.”

3. The right of peoples to selfdetermination, as it evolved from the Charter and from United Nations
practice, has an erga omnes character (Advisory Opinion Concerning Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, International Court of Justice (ICJ), 9 July
2004, available at: http://www.refworld.org/docid/414ad9a719. html [accessed 25 July 2014])

4. Many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the
human person and ‘elementary considerations of humanity’ that they are “to be observed by all States
whether or not they have ratified the conventions that contain them, because they constitute
intransgressible principles of international customary law”.

In the Court’s view, these rules incorporate obligations which are essentially of an erga omnes character
(Id.; I.C.J. Reports 1996 [I], p. 257, para. 79).

Jus cogens

1. In international law, the term “jus cogens” (literally, “compelling law”) refers to norms that command
peremptory authority, superseding conflicting treaties and custom.

Jus cogens norms are considered peremptory in the sense that they are mandatory, do not admit
derogation, and can be modified only by general international norms of equivalent authority (Vinuya v.
Executive Secretary, supra; See Vienna Convention on the Law of Treaties art. 53, opened for signature
May 23, 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679).

2. Application:
a. The prohibition on torture is part of customary international law and has become a peremptory norm
(jus cogens) (Questions Concerning the Obligation to Prosecute or Extradite [Belgium v. Senegal,
Judgment Jul. 20, 2012), available at http://www.icjcij.org/docket/files/144/17064.pdf).

NOTE: However, the obligation to prosecute alleged perpetrators of torture only arises after the
Convention has entered into force for that state party (Id.).

b. Duty to prevent genocide separate from the duty to punish its perpetrators under the Genocide
Convention (Application of the Convention on the Prevention and Punishment of the Crime of Genocide
[Bosnia and Herzegovina v. Serbia and Montenegro, International Court of Justice, Judgment 26
February 2007, available online at: http://www.icjcij.org/docket/files/91/13685.pdf visited 14 April
2014).

Concept of ex aequo et bono

1. According to what is equitable and good; on the merits of the case —used especially in international
law when a case by agreement of the principals is to be decided on grounds of equity and reason rather
than specific points of law ("Ex Aequo Et Bono." MerriamWebster.com. Merriam-Webster, n.d. Web. 25
July 2014. [http://www.merriamwebster.com/ dictionary/ex aequo et bono]).

2. Article 38(2) of the Statute of the International Court of Justice provides that the court may decide
cases ex aequo et bono, but only where the parties agree thereto (Statute of the International Court of
Justice).

3. Article 33 of the United Nations Commission on International Trade Law's Arbitration Rules (1976) [3]
provides that the arbitrators shall consider only the applicable law, unless the arbitral agreement allows
the arbitrators to consider ex aequo et bono (UNCITRAL Arbitration Rules. United Nations Commission
on International Trade Law [1976]).

4. Application:
a. The basic principles in the matter of delimitation xxx xxx, were that it must be the object of
agreement between the States concerned and that such agreement must be arrived at in accordance
with equitable principles.
The Parties were under an obligation to act in such a way that in the particular case, and taking all the
circumstances into account, equitable principles were applied. There was no question of the Court's
decision being ex aequo et bono.
It was precisely a rule of law that called for the application of equitable principles, and in such cases as
the present ones the equidistance method could unquestionably lead to inequity.
Other methods existed and might be employed, alone or in combination, according to the areas
involved.
Although the Parties intended themselves to apply the principles and rules laid down by the Court some
indication was called for of the possible ways in which they might apply them (North Sea Continental
Shelf Case, International Court of Justice, Judgment, 20 February 1969).
International and National law

1. Monist vs. Dualist

Monist

There is no substantial distinction between international and municipal law

Dualist

Municipal Law
Issued by a political superior for observance by those under its authority
Consists of enactments of the law-making authority
Regulates relations of individuals among themselves
Violations are redressed through local judicial and administrative processes
Breaches entail individual responsibility

International Law

Not imposed but adopted by states as a common rule of action.

Derived from such sources as international customs, conventions or general principles of law
Applies to relations between states and international persons
Resolved through state-to-state transactions
Breaches there is collective responsibility
Nachura, Outline Reviewer in Political Law, 2009 Ed.

2. Incorporation v. Transformation

Doctrine of Incorporation
Adopts the generally accepted principle of international law as part of the law of the land (Sec. 2, Art. II;
see Kuroda v. Jalandoni, 83 Phil. 171; Lo Ching v. Archbishop of Manila, 81 Phil 601)

Doctrine of Transformation

Requires the enactment by the legislative body of such international law principles as are sought to be
part of municipal (see Laguna Lake Development Authority v. Court of Appeals, 231 SCRA 292)

3. Rules to be observed when there is a conflict between International Law (IL) and Municipal Law:

Domestic sphere:
LOCAL COURT DECIDING

IL Constitution
Uphold constitution (see Sec. 5[2] [a], Art. VII, 1987 Constitution; see also Secretary of Justice v. Judge
Lantion, GR 139465)
IL Statute

IL = Statute
Apply lex posterior derogate priori (that which comes last in time, will usually be upheld by the
municipal tribunal) (see Ichong v. Hernandez, 101 Phil 115).

NOTE: A treaty may repeal a statute; a Statute may repeal a treaty.

International Sphere:
INTERNATIONAL TRIBUNAL DECIDING

IL ML
IL is superior to municipal law
Reason: IL provides the standard by which to determine the legality of a State’s conduct. (Nachura,
supra.)

Sources of International Law

1. Primary Source

a. International treaties and conventions, whether particular or general, establishing rules expressly
recognized by the contesting states (Art. 38 [1][a], Statute of the International Court of Justice);

b. International customs, as evidence of law recognized by civilized nations (Art. 38 [1][b], Statute of the
International Court of Justice);

c. General principles of law recognized by civilized nations (Art. 38 [1][c], Statute of the International
Court of Justice);

d. Ex aequo et bono (what is good and just), provided that the parties to the dispute agree thereto (Art.
38 [2], Statute of International Court of Justice)

NOTE: Although the provision is silent on the question of whether the three primary sources have the
same hierarchic value, by practice, the hierarchy is depicted below:

TREATIES< CUSTOMS <GENERAL PRINCIPLES OF LAW

Treatise take precedence of over customs; customs over general principles of law, except the principle
of Jus cogens. (Adapted from Nachura, supra.)

2. Secondary Source

a. Judicial decisions (Art. 38 [1] [d], Statute of the International Court of Justice);
NOTE: The decision of the Court has no binding force except between the parties and in respect of that
particular case (Art. 59, Statute of the International Court of Justice).

b. Teachings of publicists (Art. 38 [1] [d], Statute of the International Court of Justice).

Subjects of International Law

Subject of International Law

An entity that has rights and responsibilities under international law

Can be a proper party in transactions involving application of the law of nations among member of the
international community

Objects of International Law

A person or thing in respect of which rights are held and obligations assumed by the subject
Not directly governed by the rules of international law; its rights are received, and its responsibilities
imposed, indirectly through the instrumentality of an international agency.

Subjects of International Law:

1. States
2. Colonies and dependencies
3. Mandates and trust territories
4. The Holy See
5. United Nations
6. Belligerent communities
7. International administrative bodies
8. Individuals (to a certain extent) (Nachura, supra.)

State
1. A group of people, more or less numerous, permanently living in a definite territory, under an
independent government organized for political ends and capable of entering into legal relations with
other states (Art. 1, Montevideo Convention on the Rights and Duties of States).

2. Elements (Id.): a. People; b. Territory; c. Government; and d. Independence and Sovereignty

3. Modes of acquiring territorial sovereignty: a. Discovery and occupation. Territory not belonging to any
State, or terra nullius is placed under the sovereignty of the claiming State (Nachura, supra.).

Effective occupation means continued display of authority which involves 2 elements each of which
must be shown to exist:
i. the intention and will to act as sovereign (animus occupandi);
ii. some actual exercise or display of such authority (Eastern Greenland Case (1931-33)

NOTES:
*Discovery alone, merely creates an inchoate right; it must be followed within a reasonable time by
effective occupation and administration (Nachura, supra.)
*Inchoate right flowing from the discovery was deemed lost because administration was not undertaken
within reasonable time (Palmas Island Arbitration case)
*Very infrequent administration can be recognized as effective occupation and administration when the
territory is a small and desolate island (Clipperton Island case).
*In thinly populated and uninhabited areas, very little actual exercise of sovereignty was needed in the
absence of competition (Eastern Greenland Case)

b. Prescription.
Territory is acquired through continuous and uninterrupted possession over a long period of time
(Nachura, supra).

NOTE: Grotius doctrine of immemorial prescription requires the uninterrupted possession going beyond
memory (Id.).

c. Cession (by treaty).

Cession may be:
i. Voluntary, through a treaty of sale or donation;
ii. Involuntary or forced (Id).

d. Accretion.
The increase in the land area of the State, either through natural means, or artificially, through human
labor (Id, p. 664).

e. Conquest.
This mode is no longer recognized, inasmuch as the UN Charter prohibits resort to threat or use of force
against territorial integrity or political independence of any state (Id.).

NOTE: Even before the UN Charter, the Stimson Doctrine, proscribed recognition of any government set
up through external aggression (Id).

4. Recognition.
The act by which a state acknowledges the existence of another state, a government or a belligerent
community, and indicates its willingness to deal with the entity as such under international law (Id, p.
647).

Theories of recognition:

Constitutive
Minority view
Recognition is the act which constitutes the entity into an international person.
Recognition is compulsory and legal.

Declarative
Majority view
Recognition merely affirms an existing fact, like the possession by the state of the essential elements.
Recognition is discretionary and political. (Nachura, supra.)

a. Basic rules on recognition (Id):

i. It is political act and mainly a matter of policy on the part of each state;
ii. It is discretionary on the part of the recognizing authority;
iii. It is exercised by the political (executive) department of the State;
iv. Legality and wisdom of recognition is not subject to judicial review.

b. Requirements for recognition of government:

Tobar/Wilson Doctrine
Precludes recognition of any government established by revolutionary means until constitutional
reorganization by free election of representatives

Stimson Doctrine
No recognition of a government established through external aggression.

Estrada Doctrine
Since recognition has been recognized as approval (and non-recognition, disapproval) of a government
established through a political upheaval, a state may not use a declaration giving recognition to such
government, but merely accept whatever government is in effective control without raising the issue on
recognition.

Dealing or not dealing with the government is not a judgment on the legitimacy of the said government.
(Nachura, supra.)

c. Kinds of Recognition

De Facto
Extended by the recognizing state which believes that some of the requirements for recognition are
absent.
Recognition is generally provisional and limited to certain juridical relations
Does not bring about full diplomatic intercourse
Does not give title to assets of the state held or situated abroad

De jure
Extended to a government fulfilling the requirements for recognition
Recognition relatively permanent
Brings about full diplomatic intercourse and observance of diplomatic immunities
Confers title to assets abroad Nachura, supra.

d. Effects of Recognition (Id.; citing Oetjen v. Central Leather Co., 246 US 297):

i. Diplomatic relations
ii. Right to sue in the courts of the recognizing State
iii. Immunity from jurisdiction;
iv. Entitlement to property within the recognizing State;
v. Retroactive validation of the acts of recognized state/government, such as acts of state;
vi. Sovereign immunity covers past, present and future acts.

5. Belligerent Occupation.
a. Conditions:
i. Organized civil government having control and supervision over armed struggle;
ii. Serious and widespread struggle with the outcome uncertain;
iii. Occupation of substantial portion of the national territory;
iv. Willingness on the part of the rebels to observe rules/customs of war (Id.).

b. Absence of any of the foregoing conditions will result merely in insurgency which is rarely recognized
(Id.).

c. Recognition may be either express or implied; the proclamation by the parent State of a blockade of a
port held by the rebels is implied recognition of belligerency; so is the proclamation of neutrality by a
third state (Id.).

d. Responsibility for the acts of the rebels resulting in injury to nationals of the recognizing state shall be
shifted to the rebel government;
the legitimate government recognizing the rebels shall observe the laws of war un conducting hostilities;
and recognition is only provisional (for the duration of the armed struggle) and only for the purpose of
the hostilities (Id.).

6. Creation and Extinction of States

Creation
1. Revolution 2. Unification 3. Secession 4. Assertion of its independence 5. Agreement 6. Attainment of
civilization
Extinction
1. Extinction 2. Emigration en masse of its population 3. Loss of territory 4. Overthrow of government
resulting to anarchy independence Nachura, supra.

7. Principle of State Continuity.

The state continues as a juristic being notwithstanding changes in its circumstances, provided only that
such changes do not result in the loss of any of its essential elements (Id.).

Succession of States
May be universal or partial
Political laws are abrogated; while municipal laws remain in force; treaties are discontinued, except
those dealing with local rights and duties, such as those establishing easements and servitudes; all rights
of the predecessor are inherited, but successor state can assume and reject liabilities at its discretion.

NOTE: In Haile Selassie v. Cable Wireless, it was ruled that a conquered state has no personality in
international law.

Succession of Governments
Integrity of the state is not affected; the state continues as the same international person except that its
lawful representative is changed.

All rights of the predecessor government were organized by virtue of constitutional reform duly ratified
in a plebiscite, all obligations of the predecessor are likewise assumed NOTE: Where the new
government is established through violence, the new government may lawfully reject purely personal or
political obligations of the predecessor, but not obligations contracted by it in the ordinary course of
official business. Nachura, supra.

1. Classification of State (Id):

a. Independent State. It has the freedom to direct and control foreign relations without restraint from
other states.
1) Simple State which is a single central government with power over internal and external affairs;
2) Composite State which means two or more sovereign states joined together to constitute one
international which may be:
i. Real Union.
It is created when two or more states are merged under a central authority through which they act in
the direction of their external affairs.
ii. Federal Union.
It is combination of two or more states which, upon merger, cease to be states, resulting in the creation
of new state with full international personality to represent them in external relations and a certain
degree of power over their domestic affairs and their inhabitants.
iii. Confederation.
It is an organization of states which retain their internal sovereignty and to some extent their external
sovereignty, while delegating to the collective body power to represent them as a whole for certain limit
and specified purpose, such as common defense.
iv. Personal Union.
It comes into being when two or more states are brought together under the same monarch, who
nevertheless does not constitute one international person for the purpose of representing all of them.
v. Incorporate Union.
It is a union of two or more states under a control authority empowered to direct both their internal and
external affairs and possessed of a separate international personality.

b. Dependent State.
A dependent state is an entity which although theoretically considered a state, does not have full
freedom in the directions of its external affairs.

May be:
1) Protectorate which is established at the request of the weaker state for the protection of a strong
power;
2) Suzerainty which is the result of a concession from a state to a former colony which is allowed to
become independent subject to the retention by the former sovereign of certain powers over the
external affairs of the latter.
3) Neutralized States.
These are states whose independence and integrity are guaranteed by an international treaty on the
condition that such state obligates itself to take up arms against any other state or to enter into an
international obligation as would indirectly involve it in war.

International Organizations

1. Unlike states which possessed general competence, international organizations are governed by the
principle of specialty, that is, they are invested by the States which create them with powers, the limits
of which are a function of the common interest whose promotion those states entrust to them
(Nachura, supra.).

2. United Nations (UN). An international organization founded in 1945 after the Second World War by 51
countries committed to maintaining international peace and security, developing friendly relations
among nations and promoting social progress, better living standards and human rights. a. The UN has 4
main purposes (Sec. 1, UN Charter):
i. 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;
ii. 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;
iii. To achieve international cooperation 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
iv. To be a centre for harmonizing the actions of nations in the attainment of these common ends.

b. Principles of the UN (Sec. 2, UN Charter):

i. The Organization is based on the principle of the sovereign equality of all its Members.
ii. All Members, in order to ensure to all of them the rights and benefits resulting from membership,
shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.
iii. All Members shall settle their international disputes by peaceful means in such a manner that
international peace and security, and justice, are not endangered.
iv. 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.
v. 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.
vi. 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.
vii. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters
which are essentially within the domestic jurisdiction of any state or shall require the Members to
submit such matters to settlement under the present Charter; but this principle shall not prejudice the
application of enforcement measures under Chapter VII (Action with Respect to Threats to The Peace,
Breaches of The Peace, And Acts of Aggression).

c. Membership.
Membership in the United Nations is open to all other peace-loving states which accept the obligations
contained in the present Charter and, in the judgment of the Organization, are able and willing to carry
out these obligations (Art. 4[1], UN Charter).

Admission
The admission of any such state to membership in the United Nations will be effected by a decision of
the General Assembly upon the recommendation of the Security Council (Art. 4[2], UN Charter).
Voting Requirement
Decision of 2/3 of those present and voting in the General Assembly upon recommendation of at least
nine (including all permanent ) members of the Security Council (Art. 18, Art. 27 [3], UN Charter).

Suspension
A Member of the United Nations against which preventive or enforcement action has been taken by the
Security Council may be suspended from the exercise of the rights and privileges of membership by the
General Assembly upon the recommendation of the Security Council. The exercise of these rights and
privileges may be restored by the Security Council (Art. 5, UN Charter).
Voting Requirement
Decision of 2/3 of those present and voting in the General Assembly upon recommendation of at least
nine (including all permanent) members of the Security Council (Art. 18, Art. 27 [3], UN Charter).

Expulsion
A Member of the United Nations which has persistently violated the Principles contained in the present
Charter may be expelled from the Organization by the General Assembly upon the recommendation of
the Security Council (Art. 6, UN Charter).
Voting Requirement
Decision of 2/3 of those present and voting in the General Assembly upon recommend ation of at least
nine (including all permanent) members of the Security Council (Art. 18, Art. 27 [3], UN Charter).

Withdrawal. It was intended that no provision on withdrawal be included in the Charter, although there
is actually no compulsion for continued membership if the members feel constrained to withdraw due
to exceptional circumstances (Nachura, supra.)

PERMANENT MEMBERS OF UN
SECURITY COUNCIL (Sec. 23, UN Charter)

1. Republic of China 2. France 3. Union of Soviet Socialist Republics (Russia) 4. United Kingdom of Great
Britain and Northern Ireland 5. United States of America

d. Organs of the UN
General Assembly
Composition
Consist of all members General Assembly shall consist of all the Members of the United Nations.
Each Member shall have not more than five representatives in the General Assembly (Art. 9, Sec.).
NOTE: *His Excellency Mr. Volkan Bozkır President of the 75th session of the United Nations General
Assembly

Security Council
Composition
The Security Council shall consist of 15 members of the United Nations (Sec. 23, Charter of the UN):
1. Permanent members;
2. Elected member s. The General Assembly shall elect ten other Members of the UN to be
nonpermanent members of the Security Council, due regard being specially paid, in the first instance to
the contribution of Members of the UN to the maintenance of international peace and security and to
the other purposes of the Organization, and also to equitable geographic al distribution . The
nonpermanent members of the Security Council shall be elected for a term of two years. In the first
election of the nonpermanent members after the increase of the membership of the Security Council
from eleven to fifteen, two of the four additional members shall be chosen for a term of one year. A
retiring member shall not be eligible for immediate re-election. Each member of the Security Council
shall have one representative.

Economic and Social Council

Composition
The Economic and Social Council shall consist of 54 members of the UN elected by the General Assembly
(Art. 61, Charter of UN). Subject to the provisions of paragraph 3, 18 members of the Economic and
Social Council shall be elected each year for a term of three years. A retiring member shall be eligible for
immediate re-election (Id.). At the first election after the increase in the membership of the Economic
and Social Council from twenty-seven to fifty-four members, in addition to the members elected in place
of the nine members whose term of office expires at the end of that year, twenty-seven additional
members shall be elected. Of these twenty-seven additional members, the term of office of nine
members so elected shall expire at the end of one year, and of nine other members at the end of two
years, in accordance with arrangements made by the General Assembly (Id.). Each member of the
Economic and Social Council shall have one representative (Id.).

NOTE: *His Excellency Mr. Munir Akram President of the UN ESC

-----------------
UN General Assembly
Functions
1. Deliberative (initiating studies and making recommendations for the development of international
law) (Sec. 13,14, UN Charter);
2. Supervisory (receiving and considering annual and special reports from other organs of the UN) (Sec.
15, UN Charter);
3. Financial (consideration and approval of the budget of the organization) (Sec. 17, UN Charter);
4. Elective (election of nonpermanent members of the Security Council, all members of the Economic
and Social Council, etc.) (Sec. 18, UN Charter); Constituent (admission of members and the amendment
of the Charter) (Sec. 18, UN Charter)

Security Council
Functions
1. The Security Council has primary responsibility to maintain international peace and security;
investigate and call disputants to settle their difference through peaceful means; recommends; methods
of adjustment of disputes ; and make appropriate recommendation ; and to undertake preventive and
enforcement actions (Nachura , supra.);
2. Preventive action shall consist of provisional measure s to prevent a conflict from worsening, and may
involve the deployment of peacekeeping and/or observer missions (Id).
3. Enforcement action may consist in the deployment of air, sea and land forces, or in the institution of a
blockade (Id).

Economic and Social Council

Functions
1. The Economic and Social Council may make or initiate studies and reports with respect to
international economic, social, cultural, educational, health, and related matters and may make
recommendations with respect to any such matters to the General Assembly to the Member s of the
United Nations, and to the specialized agencies concerned (Art. 62, UN Charter).
2. It may make recommendation s for the purpose of promoting respect for, and observance of, human
rights and fundamental freedom s for all (Id).
3. It may prepare draft conventions for submission to the General Assembly, with respect to matters
falling within its competence (Id). 4. It may call, in accordance with the rules prescribed by the United
Nations, international conferences on matters falling within its competence (Id).
-------
Trusteeship Council
Composition
1. The Trusteeship Council shall consist of the following Members of the United Nations (Art. 86):
a. those Members administering trust territories;
b. such of those Members mentioned by name in Article 23 as are not administering trust territories;
and
c. As many other Members elected for threeyear terms by the General Assembly as may be necessary to
ensure that the total numb er of members of the Trusteeship Council is equally divided between those
Members of the Unite d Nations which administer trust territories and those which do not.

2. Each member of the Trusteeship Council shall designate one specially qualified person to represent it
therein (Art. 86)

Secretariat
Composition
1. The Secretariat shall comprise a SecretaryGeneral and such staff as the Organization may require. The
Secretary

General shall be appoint ed by the General Assembly upon the recommendation of the Security Council.
He shall be the chief administrative officer of the Organization (Art. 97, UN Charter). NOTE: *His
Excellency Antonio Guterres

International Court of Justice Composition

Composition
1. The Court
The Court is composed of 15 judges, who are elected by the United Nations General Assembly and the
Security Council (“The Court”, http://www.i cj-cij.org/ court/index. php?p1=1., last retrieved April 30,
2014)

Term: 9 years
In order to ensure a measure of continuity, one third of the Court is elected every three years. Judges
are eligible for re-election.
Should a judge die or resign during his or her term of office, a special election is held as soon as possible
to choose a judge to fill the unexpired part of the term (Id).

NOTE:
President: Abdulqawi Ahmed Yusuf
VicePresident: Xue Hanqin

2. The Registry is the permanent administrative organ of the Court.

It is accountable to the Court alone.
It is headed by a Registrar, assisted by a DeputyRegistrar.
The Registry consists of three Departments:
a. Legal Matters; b. Linguistic Matters;
c. Information
The Registry consists of a number of technical Divisions:
a. Personnel or Administration;
b. Finance;
c. Publications;
d. Library;
e. IT;
f. Archives, Indexing and Distribution ;
g. Shorth and, Type writing and Reproduction;
h. General Assistance and the secretaries to Members of the Court.

NOTE:
The Trusteeship Council suspended operation on 1 November 1994, with the independence of Palau,
the last remaining United Nations trust territory, on 1 October 1994.
By a resolution adopted on 25 May 1994, the Council amended its rules of procedure to drop the
obligation to meet annually and agreed to meet as occasion required -- by its decision or the decision of
its President, or at the request of a majority of its members or the General Assembly or the Security
Council.

NOTE: Mandates and Trust Territories

Mandates- was a legal status for certain territories transferred from the control of one country to
another following World War I, or the legal instruments that contained the internationally agreed-upon
terms for administering the territory on behalf of the League. These were of the nature of both a treaty
and constitution which contained minority rights clauses that provided for the right of petition and
adjudication by the International Court ("Legal Consequences for States of the Continued Presence of
South Africa in Namibia [South West Africa] notwithstanding Security Council Resolution 276 (1970)".
International Court of Justice: 28–32. 21 June 1971)

Trust territories - Chapter XII of the UN Charter, the United Nations established the International
Trusteeship System for the supervision of Trust Territories placed under it by individual agreements with
the States administering them. Under Article 77 of the Charter, the Trusteeship System applied to:
1. Territories held under Mandates established by the League of Nations after the First World War;
2. Territories detached from "enemy States" as a result of the Second World War;
3. Territories voluntarily placed under the System by States responsible for their administration
(International Trusteeship System, http://www.un.org/en/decolonization/its.shtml, last retrieved April
30, 2014).
Trusteeship Council
Functions
1. The General Assembly and, under its authority, the Trustee ship Council , in carrying out their
functions, may (Art. 87, UN Charter) :
a. consider reports submitted by the administering authority;
b. accept petitions and examine them in consultation with the administering authority;
c. provide for periodic visits to the respective trust territories at times agree d upon with the
administering authority; and
d. Take these and

Secretariat
The SecretaryGeneral shall act in that capacity in all meetings of the General Assembly, of the Security
Council, of the Economic and Social Council, and of the Trusteeship Council, and shall perform such
other functions as are entrusted to him by these organs. The SecretaryGeneral shall make an annual
report to the General Assembly on the work of the Organization (Art. 87, UN Charter):

International Court of Justice Functions

The International Court of Justice shall be the principal judicial organ of the United Nations. It shall
function in accordance with the annexed Statute, which is based upon the Statute of the Permanent
Court of International Justice and forms an integral part of the present Charter (Art. 92, UN Charter).
The Court decides contentious cases and renders advisory opinions.
Only states, including nonmembers of the UN, may be parties in contentious cases.
The jurisdiction of the Court is based on the consent pf the parties in accordance with the “optional
jurisdiction clause”, and the Court may decide on interpretation of treaties, any question of
international law, the existence of facts of constituting breach of international obligations , and the
nature or extent of the reparation to be made for the breach of an international obligation.
Advisory opinions may be given upon request of the General Assembly, or the Security Council, or the
other organs of the UN when authorized by the General Assembly (Nachura, supra.)

VOTING REQUIREMENT

General Assembly Each member of the General Assembly shall have one vote.

a. Important questions: 2/3 majority of the members present and voting.

These questions shall include:

1) recommendations with respect to the maintenance of international peace and security,
2) Election of the:
i. nonpermanent members of the Security Council ii. members of the Economic and Social Council iii.
Trustee ship Council in accordance with paragraph 1 (c) of Article 86 3) Admission of new Members to
the United Nations 4) Suspension of the rights and privileges of membership 5) Expulsion of Members 6)
Questions relating to the operation of the trusteeship system 7) Budgetary questions. b. Decisions on
other questions, including the determination of additional categories of questions to be decided by a
twothirds majority, shall be made by a majority of the members present and voting.

Security Council

a. Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine
members.
b. Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine
members including the concurring votes of the permanent members; provided that, in decisions under
Chapter VI (Pacific Settlement of Disputes), and under paragraph 3 of Article 52 (pacific settlement of
local disputes through such regional arrangements or by such regional agencies either on the initiative
of the states concerned or by reference from the Security Council), a party to a dispute shall abstain
from voting.

NOTE: The Yalta Formula: The determination of whether a matter is procedural or substantive is non-
procedural. This allows for the so-called “double veto” by a permanent member of the council.
However, the abstention or absence of any permanent member is not considered a “veto” (Nachura,
supra.).

Economic and Social Council Each member of the Economic and Social Council shall have one vote
Decisions of the Economic and Social Council shall be made by a majority of the members present and
voting.

Trustee Council Each member of the Trusteeship Council shall have one vote.

Decisions of the Trusteeship Council shall be made by a majority of the members present and voting.

INTERNATIONAL COURT OF JUSTICE

The International Court of Justice (ICJ) was established in June 1945 by the Charter of the United Nations
and began work in April 1946. The seat of the Court is at the Peace Palace in The Hague (Netherlands).
Of the six principal organs of the United Nations, it is the only one not located in New York (United
States of America).

The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by States
and to give advisory opinions on legal questions referred to it by authorized United Nations organs and
specialized agencies.

Contentious Cases
Legal disputes between States submitted to it by them

Only States (States Members of the United Nations and other States which have become parties to the
Statute of the Court or which have accepted its jurisdiction under certain conditions) may be parties to
contentious cases. The Court is competent to entertain a dispute only if the States concerned have
accepted its jurisdiction in one or more of the following ways: 1) by entering into a special agreement to
submit the dispute to the Court; 2) by virtue of a jurisdictional clause, i.e., typically, when they are
parties to a treaty containing a provision whereby, in the event of a dispute of a given type or
disagreement over the interpretation or application of the treaty, one of them may refer the dispute to
the Court; 3) Through the reciprocal effect of declarations made by them under the Statute whereby
each has accepted the jurisdiction of the Court as compulsory in the event of a dispute with another
State having made a similar declaration.

Advisory Proceedings
Requests for advisory opinions on legal questions referred to it by United Nations organs and specialized
agencies (advisory proceedings)

Advisory proceedings before the Court are open solely to five organs of the United Nations and to 16
specialized agencies of the United Nations family: • General Assembly and Security Council - May
request advisory opinions on “any legal question • Other United Nations organs

• and specialized agencies which have been authorized to seek advisory opinions - May request advisory
opinions with respect to “legal questions arising within the scope of their activities”.

Proceedings may be instituted in one of two ways:

Notification of a special agreement

Bilateral nature, can be lodged with the Court by either of the States parties to the proceedings or by
both of them.

A special agreement must indicate the subject of the dispute and the parties thereto.
There is neither an “applicant” State nor a “respondent” State.

By means of an application

Unilateral nature, is submitted by an applicant State against a respondent State

Applicant State must, as far as possible, indicate briefly on what basis - a treaty or a declaration of
acceptance of compulsory jurisdiction - it claims the Court has jurisdiction, and must succinctly state the
facts and grounds on which it bases its claim.

Proceedings are instituted by way of request for an advisory opinion.

When it receives a request for an advisory opinion, the Court, in order that it may give its opinion with
full knowledge of the facts, is empowered to hold written and oral proceedings, certain aspects of which
recall the proceedings in contentious cases.
In theory, the Court may do without such proceedings, but it has never dispensed with them entirely.
A few days after the request is filed, the Court draws up a list of those States and international
organizations that will be able to furnish information on the question before the Court.
Those States are not in the same position as parties to contentious proceeding: their representatives
before the Court are not known as agents and their participation, if any, in the advisory proceedings
does not render the Court’s opinion binding upon them.
In general, the States listed are the Member States of the organization requesting the opinion.
Any State not consulted by the Court may ask to be.

Written and Oral Proceedings

The date of the institution of proceedings, which is that of the receipt by the Registrar of the special
agreement or application, marks the opening of proceedings before the Court.

Contentious proceedings

After the oral proceedings the Court deliberates in camera and then delivers its judgment at a public
sitting.
The judgment is final, binding on the parties to a case and without appeal (at most it may be subject to
interpretation or revision).
Any judge wishing to do so may append an opinion to the judgment.
By signing the Charter, a State Member of the United Nations undertakes to comply with any decision of
the Court in a case to which it is a party.
Since, furthermore, a case can only be submitted to the Court and decided by it if the parties have in one
way or another consented to its jurisdiction over the case, it is rare for a decision not to be
implemented.
A State which contends that the other side has failed to perform the obligations incumbent upon it
under a judgment rendered by the Court may lay the matter before the Security Council, which is
empowered to recommend or decide upon the measures to be taken to give effect to the judgment.

Written proceeding only

The written proceedings are shorter than but as flexible as in contentious proceedings between States.
Participants may file written statements, which sometimes form the object of written comments by
other participants.
The written statements and comments are regarded as confidential, but are generally made available to
the public at the beginning of the oral proceedings. States are then usually invited to present oral
statements at public sittings.
Advisory proceedings are concluded by the delivery of the advisory opinion at a public sitting.
It is of the essence of such opinions that they are advisory, i.e., that, unlike the Court’s judgments, they
have no binding effect.
The requesting organ, agency or organization remains free to give effect to the opinion by any means
open to it, or not to do so.
Certain instruments or regulations can, however, provide beforehand that an advisory opinion by the
Court shall have binding force (e.g., conventions on the privileges and immunities of the United
Nations).
It remains nevertheless that the authority and prestige of the Court attach to its advisory opinions and
that where the organ or agency concerned endorses that opinion, that decision is as it were sanctioned
by international law.

Individuals

1. General

Rule: Individuals have been considered as merely object of international law (Nachura, supra.).

2. Exception: Individuals have likewise been granted a certain degree subjects of that law (Id), not in
accordance with general or customary international law, to wit:

a. UN Charter provision on “faith in fundamental human rights, dignity and worth of human person, and
in the equal rights of men and women”;
b. Universal Declaration of Human Rights provision on “the inherent dignity and equal and inalienable
rights of all members of the human family”;
c. Treaty of Versailles, which confer on individuals the right to bring suit against the States before
national or international tribunals;
d. The Genocide Convention, which condemns the mass extermination of national, ethnic, racial and
religious groups;
e. The need for States to maintain an international standard of justice for treatment of aliens;
f. The 1930 Hague Convention with its rules to prevent the anomalous condition of Statelessness, and
the 1954 Covenant Relating to the Status of Stateless Persons, which grants stateless individuals certain
basic rights;
g. 1950 European Convention on Human Rights and Fundamental Freedoms, which grants private
associations and individuals the right to file complaints before European Court on Human Rights;
h. Art. 187(c), (d) and (e), UNCLOS: The jurisdiction of the Sea-Bed Disputes Chamber of the ITLOS
extends to disputes between parties to contracts relating to the Exploitation of the Area.
Parties to such contracts may be natural or juridical persons; Claims Settlement Declaration of 1981
between US and Iran:
Direct access to the Iran-US Claims Tribunal is given to individuals for the settlement of their claims
involving more than $250,000 either against Iran or the US;
Mixed Claims Tribunals established in the Treaties of Peace concluded at the end of WWI: Individuals
enjoyed locus standi in actions against States relating to contracts, debts, and property adversely
affected by the war;
London Agreement of the International Military Tribunal at Nuremberg:
In crimes against peace, war crimes and crimes against humanity, international law imposes duties and
liabilities upon individuals as well as upon States;
i. Art. VI of the Convention on the Prevention and Punishment of the Crime of Genocide: “Parties
charged with genocide” refers to individuals whose Responsibility is thus under international law.
Diplomatic and Consular Law Diplomatic law

1. Right of Legation or Right of diplomatic intercourse -- refers to the right of the State to the right of the
State to send and receive diplomatic missions, which enables the State to carry on friendly intercourse.
It is not a natural or inherent right, but exists only by common consent.
No legal liability is incurred by the State for refusing to send or receive diplomatic representatives
(Nachura, supra.).

2. Agents of Diplomatic Intercourse: a. Head of State. He is the embodiment of, and represents, the
sovereignty of the state, and enjoys the right to special protection for his physical safety and the
preservation if his honor and reputation.
His quarters, archives, property and means of transportation are inviolate under the principle of
exterritoriality.
He is immune from criminal and civil jurisdiction, except when he himself is the plaintiff, and is not
subject to tax or exchange or currency restrictions (Mighell v. Sultan of Johore, in Nachura, supra.).

b. The Foreign Office.

The actual dayto-day affairs is usually entrusted to a Foreign Office, headed by a Secretary or Minister,
who, in proper cases, may make binding declarations on behalf of his government (Nachura, supra.).

3. Establishment of resident missions.

States carry on diplomatic intercourse through permanent missions established in capitals of other
States (Nachura, supra.).

The missions are composed of (Id):

a. Head of Mission. The Vienna Convention classifies the heads of missions into:
1) Ambassadors or nuncios accredited to Head of Stated, and other heads of mission of equivalent rank;
2) Envoys, ministers and internuncios, accredited to heads of States;
3) Charges d’affaires, accredited to Ministers of Foreign Affairs.

b. Diplomatic Staff, composed of those engaged in diplomatic activities and are accorded diplomatic
rank;
c. Administrative and technical staff, consisting of those employed in the administrative and technical
service of the mission;
d. Service Staff, those engaged in the domestic service of the mission. Appointment of
Envoys/Diplomatic Corps In the Philippines, it is the President who appoints (Sec. 16, Art. VII, 1987
Constitution), sends and instructs the diplomatic and consular representatives, and his representatives
cannot be questions (De Perio-Santos v. Macaraig, GR 94070, April 10, 1992).

1. Agreation
To avoid embarrassment, States resort to an informal inquiry (Enquiry) as to the acceptability of a
particular envoy, to which the receiving State responds with an informal conformity (Agreement)
(Nachura, supra.).

2. Issuance of Lettre de creance, diplomatic passport and instructions.

With the informal process concluded, the diplomatic mission then commences when the envoy presents
himself at the receiving State, generally armed with the following papers:
a. Lettre de creance (Letter of Credence), with the name, rank, general character of the mission, a
request for favorable reception and full credence;
b. Diplomatic passport authorizing his travel;
c. Instructions, which may include document of full powers (pliens pouvoirs) authorizing him to
negotiate on extraordinary or special business;
d. Cipher, or code or secret key, for communications with his country.

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
thereon 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.

6. In some cases, representing friendly governments at their requests. (Nachura, supra.).

Diplomatic Immunities and Privilege The following shall be enjoyed by diplomatic immunities shall be
enjoyed by the envoy and the members of the diplomatic retinue (Id.):

1. Personal inviolability (see UN Convention on the Prevention and Punishment of Crimes Against
Internationally Protected Persons – considered as international crime and not political in nature);
Exception: Diplomatic envoy may be arrested temporarily in case of urgent danger, such as when he
commits an act of violence which makes it necessary to put him under restraint for the purpose of
preventing similar acts; but he must be released and sent home in due time (Nachura, supra.).

2. Inviolability of premises and archives;

a. The receiving State is under a special duty to take all appropriate steps to protect the premises of the
mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or
impairment of its dignity (Art. 22[2], Vienna Convention on Diplomatic Relations).
The "premises of the mission" are the buildings or parts of buildings and the land ancillary thereto,
irrespective of ownership, used for the purposes of the mission including the residence of the head of
the mission (Art. 1[i], Vienna Convention on Diplomatic Relations).

NOTE: Public assembly in front of the US embassy is not prohibited, there being no showing of a clear
and present danger that might arise as a result of such rally (Reyes v. Bagatsing, 125 SCRA 553).

b. Service of writs, summons, orders or processes within the premises of the mission or residence of the
envoy is prohibited.
Even if a criminal takes refuge within the premises, the peace officer cannot break into such premises
for the purpose of apprehending him.
The fugitive should, however, be surrendered upon demand by local authorities, except when the right
of asylum exists.
But if it is the ambassador himself who requests local police assistance, this privilege cannot be invoked
(Id., citing Fatemi v. US).
c. The premises of the mission, their furnishings and other property thereon, and the means of transport
of the mission shall be immune from search, requisition, attachment or execution (Id).
d. Unless the right is recognized by treaty or by local usage, an envoy should not permit the premises of
his mission or his residence to be used as a place of asylum for fugitives of justice.
An envoy may, however, in the interest of humanity, afford the temporary shelter to persons in
imminent peril of their lives, such as those fleeing from mob violence (Id).

3. Right of official communication.

The official correspondence of the mission shall be inviolable. Official correspondence means all
correspondence relating to the mission and its functions (Art. 27[2], Vienna Convention on Diplomatic
Relations).

4. Immunity from local jurisdiction;

a. 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, except in the case of:
1) 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;
2) 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;
3) An action relating to any professional or commercial activity exercised by the diplomatic agent in the
receiving State outside his official functions (Art. 31[1], Vienna Convention on Diplomatic Relations; see
Republic v. Vinzon, G.R. No. 154705. June 26, 2003). b. A diplomatic agent is not obliged to give evidence
as a witness (Art, 31[2], Id.).

c. No measures of execution may be taken in respect of a diplomatic agent except in the cases coming
under subparagraphs (1), (2) and (3) of paragraph (a) of this Article, and provided that the measures
concerned can be taken without infringing the inviolability of his person or of his residence (Art, 31[3],
Id.).
d. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him
from the jurisdiction of the sending State (Art, 31[4], Id.).
e. The immunity does not protect a public official who commits unauthorized acts, inasmuch as
unauthorized acts are not acts of State.
Accordingly, he may be sued for such unlawful acts in his capacity (Shauf v. Court of Appeals, 191 SCRA
713).
f. Slandering a person could not possibly be covered by the immunity agreement because our laws do
not allow the commission of a crime, such as defamation, in the name of official duty.
The imputation of theft is ultra vires and cannot be part of official functions.
It is well-settled principle of law that a public official may be liable in his personal private capacity for
whatever damage he may have caused by his act done with malice or in bad faith or beyond the scope
of his authority or jurisdiction (Liang vs. People, 323 SCRA 652).

5. Exemption from taxes and customs duty;

a. A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional or
municipal (Art. 34, Id.), except:

1) Indirect taxes of a kind which are normally incorporated in the price of goods or services (Id);

2) Dues and taxes on 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 (Id);

3) Estate, succession or inheritance duties levied by the receiving State, subject to the provisions of
paragraph 4 of Article 39 (Id);

4) Dues and taxes on private income having its source in the receiving State and capital taxes on
investments made in commercial undertakings in the receiving State (Id);

5) Charges levied for specific services rendered (Id).

6) Registration, court or record fees, mortgage dues and stamp duty, with respect to immovable
property, subject to the provisions of Article 23 (Id).

b. The receiving State shall, in accordance with such laws and regulations as it may adopt, permit entry
of and grant exemption from all customs duties, taxes, and related charges other than charges for
storage, cartage and similar services, on:
1) Articles for the official use of the mission;
2) Articles for other personal use of a diplomatic agent or members of his family forming part of his
household, including articles intended for his establishment (Art. 36[1], Id.).

c. The personal baggage of a diplomatic agent shall be exempt from inspection unless there are serious
grounds for presuming that it contains articles not covered by the exemptions mentioned in paragraph
(b) of this Article, or articles the import or export of which is prohibited by the law or controlled by the
quarantine regulations of the receiving State.
Such inspection shall be conducted only in the presence of the diplomatic agent or of his authorized
representative (Art. 36 [2], Id.).

6. Other privileges:
a. Freedom from movement and travel in the territory of the receiving State (Art 26, Id.);
b. Exemption from all personal services and military obligation (Art. 35, Id.);
c. The use of flag and emblem of the sending State on the diplomatic premises and the residence and
means of transport of the head of mission (Art. 20, Id.).

Duration of Immunities/Privileges

The privileges are enjoyed by the envoy from the moment he enters the territory of the receiving State,
and shall cease only the moment he leaves the country, or on expiry of a reasonable time in which to do
so; although with respect to official acts, immunity shall continue indefinitely.
These privileges are available even in transit, when traveling through a third State on the way to or from
the receiving State (Nachura, supra.).

Waiver of Immunities

Diplomatic privileges may be waived, but as a rule, the waiver cannot be made by the individual
concerned since such immunities are not personal to him.
Waiver may be made only by the government of the sending State if it concerns the immunities of the
head of mission; in other cases, the waiver may be made either by the government or by the chief of
mission.
Waiver of this privilege, however, does not include waiver of the immunity in respect of the execution of
judgment; a separate waiver of the latter is necessary (Id.).

Termination of diplomatic relations (Id.)

1. Death;
2. Resignation;
3. Removal;
4. Abolition of office;
5. Recall by the Sending State;
6. Dismissal by the Receiving State;
7. War between the Receiving and Sending States;
8. Extinction of State.

Consular Law

Consuls are State agents residing abroad for various purposes but mainly in the interest of commerce
and navigation (Id.).

1. Kinds of Consuls:
Consules Missi
Professional and career consuls and nationals of the appointing state
Consules Electi
Perform consular functions only in addition to their regular callings Nationals of the sending state
Selected by the appointing state either from its own citizens or from among nationals abroad.

2. Ranks:
Consul General
Heads several consular districts, or one exceptionally large consular district

Consul
Takes charge of small district or town or port

Vice Consul
Assists the consul

Consular Agent
Usually entrusted with the performance of certain functions by the consul

3. Appointment.
Two important documents are necessary before assumption of consular functions, namely:
a. Letters patent (lettere de provision), which is the letter of appointment or commission which is
transmitted by the sending state to the Secretary of Foreign Affairs of the country where the consul is to
serve; and
b. Exequatur, which is the authorization given to the consul by the sovereign of receiving state, allowing
him to exercise his function within the territory (Id.).

4. Functions (Id.).
a. Commerce and navigation;
b. Issuance of visa
c. Other functions that are designed to protect national of the appointing state.

5. Immunities and privileges:

Consular Offices
a. Facilities for the work of the consular post (Art. 28, 1963 Vienna Convention on Consular Relations);
b. Use of national flag and coat of arms on the building occupied by the consular post and at the
entrance door thereof, on the residence of the head of the consular post and on his means of transport
when used on official business (Art 29, Id.).
c. Accommodation (Art. 30, Id.).
d. Inviolability of the consular premises (Art. 31, Id.).
e. Exemption from taxation of the consular premises (Art. 32, Id.).
f. Inviolability of the consular archives and documents (Art. 33, Id.).
g. Freedom of movement (Art. 34, Id.). h. Freedom of communication (Art. 35, Id.):
1) Official correspondence of the consular post shall be inviolable
i. Communication and contact with nationals of the sending State (Art. 36, Id.).

Consular Officers
a. Protection of consular officers (Art. 40, Id.).
b. Personal inviolability of consular officers (Art. 41, Id.);
c. In the events of the arrest or detention, pending trial, of a member of the consular staff, or of criminal
proceedings being instituted against him, the receiving State shall promptly notify the head of the
consular post.
Should the latter be himself the object of any such measure, the receiving State shall notify the sending
State through the diplomatic channel (Art. 42, Id.).

d. Immunity from jurisdiction of judicial or administrative authorities of the receiving State in respect of
acts performed in the exercise of consular function (Art. 43, Id.).
Exceptions: Civil action either:
1) Arising out of a contract concluded by a consular officer or a consular employee in which he did not
contract expressly or impliedly as an agent of the sending State;
2) By a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel
or aircraft.

e. Members of a consular post are under no obligation to give evidence concerning matters connected
with the exercise of their functions or to produce official correspondence and documents relating
thereto.
They are also entitled to decline to give evidence as expert witness with regard to the law of the sending
State (Art. 44[3], Id.).
f. Consular offices and consular employees and members of their families forming part of the household
shall be exempt from all obligations under the laws and regulations of the receiving State in regard to
the registration of aliens and residence permits (Art. 46, Id.)
g. Members of the consular post shall, with respect to services rendered for the sending State, be
exempt from any obligations in regard to work permits imposed by the laws and regulations of the
receiving State concerning the employment of foreign labor (Art. 47, Id.).
h. Social security exemptions from social security provisions of the receiving State (Art. 48, Id.).
i. Exemption from taxation (Art. 49, Id.).
j. Exemption from customs duties and inspection (Art. 50, Id.).
k. Exemptions from personal services and contributions, from all public services of any kind, and from
military obligations (Art. 52, Id.).

6. Beginning and end of consular privileges and immunities (Art. 53, Id.):
a. Every member of the consular post shall enjoy the privileges and immunities provided in the present
Convention from the moment he enters the territory of the receiving State on proceeding to take up his
post or, if already in its territory, from the moment when he enters on his duties with the consular post.
b. Member of the family of a member of the consular post forming part of his household and members
of his private staff shall receive the privileges and immunities in provided in the present Convention
from the date from which he enjoys privileges and immunities in accordance with paragraph (a) or from
the date of their entry into the territory of the receiving State or from the date of their becoming a
member or such family or private staff, whichever is the latest.
c. When functions of a member of the consular post have come to an end, his privileges and immunities
and those of a member of his family forming part of his household or member of his private staff shall
normally cease at the moment when the person concerned leaves the receiving State or on the expiry of
a reasonable period in which to do so, whichever is the sooner, but shall subsist until that time, even in
case of armed conflict.
In case of members of the family of a member of a consular post forming part of his household and
members of his private staff, their privileges and immunities shall come to an end when they cease to be
living to the household or to be in the service of a member of the consular post, provided, however, that
if such persons intend leaving the receiving State within a reasonable period thereafter, their privileges
and immunities shall subsist until the time of their departure.
d. However, with respect to acts performed by consular officer or a consular employee continue to
subsist without limitation of time.
e. In the event of the death of a member of the consular post, the members of his family forming part of
his household shall continue to enjoy privileges and immunities accorded to them until they leave the
receiving State or until the expiry of a reasonable period enabling them to do so, whichever is the
sooner.

7. Waiver of privileges (Art.45, Id.):

a. Sending State may waive, with regard to a member of the consular post, any of the privileges and
immunities provided (Personal Inviolability of Consular Officers, Immunity from Jurisdiction, Liability to
Evidence).
b. Waiver shall in all cases be express and communicated to the receiving State in writing.
Exception:
When consular officer or employee initiates proceedings in a matter where he might enjoy immunity
from jurisdiction under Article 43 – he is precluded from invoking immunity from jurisdiction in respect
of any counter-claim directly connected with the principal claim.
c. Waiver of immunity from jurisdiction for the purposes of civil or administrative proceeding shall not
be deemed to imply the waiver of immunity from the measures of execution resulting from the judicial
decisions; in respect of such measures, a separate waiver shall be necessary.

8. Termination of consular mission (Nachura, supra.):

a. Usual modes of terminating official relationship;
b. Withdrawal of the exequatur;
c. Extinction of the State; d. War

NOTE: Severance of consular relations does not necessarily terminate diplomatic relations (Id.).

Treaties
1. "Treaty" means an international agreement concluded between States in written form and governed
by international law, whether embodied in a single instrument or in two or more related instruments
and whatever its particular designation (Art. 2[1], Vienna Convention on Law of Treaties [VCLOT]);

2. Treaty v. Executive Agreements Treaty Executive Agreement Requires ratification by the 2/3 of the
Senate to be valid and effective (Sec. 21, Art. VII)
Does not require concurrence by Senate to be binding (Bayan v. Zamora, supra).
Under international law, there is no difference between treaties and executive agreements in terms of
their binding effects on the contracting states concerned, as long as the negotiating functionaries have
remained within their powers (Bayan v. Zamora, G.R. No. 138587, October 10, 2000, 342 SCRA 2000).

NOTE: As has been observed by US constitutional scholars, a treaty has greater “dignity” than an
executive agreement, because its constitutional efficacy is beyond doubt, a treaty having behind it the
authority of the President, the Senate, and the people; a ratified treaty, unlike an executive agreement,
takes precedence over any prior statutory enactment (Bayan Muna v. Romulo, G.R. No. 159618,
February 1, 2011).

3. An “exchange of notes” is a record of routine agreement that has many similarities with private law
contract.
The agreement consists of the exchange of two documents, each of the parties being in the possession
of the one signed by the representatives of the other.
The usual procedure is for the accepting State to repeat the text of the offering State to record its
assent.
The signatories of the letters may be government ministers, diplomats or department heads.
The technique of exchange of notes is frequently resorted to either because of its speedy procedure, or
sometimes, to avoid the process of legislative approval (Abaya v. Ebdane, G.R. No. 167919, February 14,
2007);

TREATY-MAKING PROCESS

NEGOTIATION ADOPTION (Art. 9, VCLOT) 

AUTHENTICATION OF THE TEXT (Art. 10, VCLOT) 
EXPRESSION OF CONSENT TO BE BOUND BY THE TREATY (Art. 11, VCLOT) 
EXCHANGE OR DEPOSIT OF INSTRUMENTS OF RATIFICATION, ACCEPTANCE, APPROVAL OR ACCESSION
(Art. 16, VCLOT) 
REGISTRATION WITH UN (Art. 80, VCLOT)

STEPS IN TREATY MAKING PROCESS:

1) Negotiation.
The representatives of the parties are usually armed with credentials known as pleine pouviors, or full
powers, which is a document emanating from competent authority of a State designating a person or
persons to represent the State for negotiating, adopting or authenticating the text of the treaty,
expressing the State’s consent to be bound by a treaty.
Exception: It has been a general practice to consider the following as representatives of the State for
treaty negotiation:
a. Head of State
b. Head of Government
c. Foreign Minister d. Head of diplomatic missions e. Representative accredited by the State to an
international conference or to an international organization (Nachura, supra.

2) Adoption.
The adoption of the text of a treaty takes place by the consent of all the States participating in its
drawing up.
The adoption of the text of a treaty at an international conference takes place by the vote of two thirds
of the States present and voting, unless by the same majority they shall decide to apply a different rule
(Art. 9, VCLOT);

3) Authentication of the text.

The text of a treaty is established as authentic and definitive:
a. by such procedure as may be provided for in the text or agreed upon by the States participating in its
drawing up; or
b. failing such procedure, by the signature, signature ad referendum or initialing by the representatives
of those States of the text of the treaty or of the Final Act of a conference incorporating the text (Art. 10,
VCLOT);

4) Expression of consent to be bound by the treaty.

The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments
constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed
(Art. 11, VCLOT).

5) Exchange or deposit of instruments of ratification, acceptance, approval or accession.

Unless the treaty otherwise provides, instruments of ratification, acceptance, approval or accession
establish the consent of a State to be bound by a treaty upon:
a. their exchange between the contracting States;
b. their deposit with the depositary; or
c. Their notification to the contracting States or to the depositary, if so agreed (Art. 16, VCLOT).

NOTE:
1. Ratification.
The consent of a State to be bound by a treaty is expressed by ratification when:
a. the treaty provides for such consent to be expressed by means of ratification;
b. it is otherwise established that the negotiating States were agreed that ratification should be
required;
c. the representative of the State has signed the treaty subject to ratification; or
d. The intention of the State to sign the treaty subject to ratification appears from the full powers of its
representative or was expressed during the negotiation.
In the Philippines, the power to ratify a treaty is vested in the President, subject to the concurrence by
2/3 of all members of the Senate (Sec. 21, Art. VII, Philippine Constitution).
It should be emphasized that under our Constitution, the power to ratify is vested in the President,
subject to the concurrence of the Senate.
The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence, to
the ratification. Hence, it is within the authority of the President to refuse to submit a treaty to the
Senate or, having secured its consent for its ratification, refuse to ratify it.
Although the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step that
should not be taken lightly, such decision is within the competence of the President alone, which cannot
be encroached by this Court via a writ of mandamus.
This Court has no jurisdiction over actions seeking to enjoin the President in the performance of his
official duties (Pimentel v. Executive Secretary, G.R. No. 158088, July 6, 2005).

2. Accession/Adhesion. The process by which a non-signatory State becomes a party to a treaty.

Thus, upon invitation or permission of the contracting parties, a third party who did not participate or
who did not ratify on time, may be bound, may be bound by a treaty (Nachura supra.).

3. Reservation.
A unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting,
approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain
provisions of the treaty in their application to that State (Art. 2 [d], VCLOT). A State may, when signing,
ratifying, accepting, approving or acceding to a treaty, formulate a Reservation unless:
(a) the reservation is prohibited by the treaty;
(b) the treaty provides that only specified reservations, which do not include the reservation in question,
may be made; or
(c) In cases not failing under subparagraphs (a) and (b), the reservation is incompatible with the object
and purpose of the treaty (Art. 19, VCLOT). 6) Registration.

Treaties shall, after their entry into force, be transmitted to the Secretariat of the United Nations for
registration or filing and recording, as the case may be, and for publication (Art. 80, VCLOT). 7)
When non-signatories may be bound by a treaty.
As rule, treaties cannot impose obligations upon States not parties to them (Pacta tertiis nocent nec
prosunt).
Exception:
a) Accession/Adhesion;
b) Most favored nation clause – contracting State entitled to the clause may claim the benefits extended
by the latter to another State in a separate agreement.
c) The treaty is merely a formal expression of customary international law, or where the treaty expressly
extends benefits to non-signatories (Nachura, supra.).

8) Fundamental principles concerning treaties:

a. Pacta sunct servanda. International agreements must be performed in good faith.
“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 fulfillment of the obligations undertaken (Tanada v.
Angara, 272 SCRA 18).
NOTE: By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty.
By their voluntary act, nations may surrender some aspects of their state power in exchange for greater
benefits granted by or derived from a convention or pact.
The sovereignty of a state therefore cannot in fact and in reality be considered absolute.
Certain restrictions enter into the picture:
(1) limitations imposed by the very nature of membership in the family of nations and
(2) limitations imposed by treaty stipulations (Id.).

b. Rebus sic stantibus.

This doctrine constitutes an attempt to formulate a legal principle which would justify non-performance
of a treaty obligation if the conditions with relation to which the parties contracted have changed so
materially and so unexpectedly as to create a situation in which the exaction of performance would be
unreasonable (Jessup, A Modern Law of Nations [1950], p. 150, cited in Santos III v. Northwestern Orient
Airlines, 272 SCRA 18).
The doctrine of rebus sic stantibus does not operate automatically to render the treaty inoperative
(Santos III v. Northwestern Orient Airlines, 272 SCRA 18).

Requisites for application:

a) The change must be so substantial that the foundation of the treaty must have altogether
disappeared; b) The change must have been unforeseen or unforeseeable at the time of the perfection
of the treaty; c) The change must not have been caused by the party invoking the doctrine; d) The
doctrine must be invoked within a reasonable time;
e) The duration of the treaty must be indefinite;
f) The doctrine cannot operate retroactively, i.e., it must not adversely affect provisions which have
already been complied with prior to the vital change in the situation (Nachura, supra.).

9) Invalid treaties:
a. If the conclusion of a treaty is procured by threat or use of force (void) (Art. 46, VCLOT);
b. If the representative consented in violation of specific restrictions on authority, provided:
(a) the restriction was notified to the other negotiating States;
(b) prior to the representative expressing such consent (Art. 47, VCOLT);
c. Error of fact, provided that such fact formed an essential basis of a state’s consent to be bound (Art.
48, VCLOT);
d. If consent was obtained through fraudulent conduct of another negotiating state (Art. 49, VCLOT);
e. If the representative of a state was corrupted to consent by another negotiating state (Art. 50,
VCLOT);
f. If consent to be bound by a treaty which has been procured by the coercion of its representative
through acts or threats directed against him shall be without any legal effect (Art. 51, VCLOT);
g. If its conclusion has been procured by the threat or use of force in violation of the principles of
international law embodied in the Charter of the United Nations (Art. 52, VCLOT).
h. If the treaty violates a jus cogens norm of international law (void) (Art. 53, VCLOT);
10) Interpretation of treaties.
A treaty shall be interpreted in good faith, in accordance with the ordinary meaning given to the terms
of the treaty in their context and in the light of its objects and purposes (Id.).

11) Amendment/Modification. A treaty may be amended by agreement between the parties (Art, 39,
VCLOT).

Special rules:
a. Amendment of multilateral treaties.

(a) Any proposal to amend a multilateral treaty as between all the parties must be notified to all the
contracting States, each one of which shall have the right to take part in:
1. the decision as to the action to be taken in regard to such proposal;
2. the negotiation and conclusion of any agreement for the amendment of the treaty.
(b) Every State entitled to become a party to the treaty shall also be entitled to become a party to the
treaty as amended.
(c) The amending agreement does not bind any State already a party to the treaty which does not
become a party to the amending agreement;
(d) Any State which becomes a party to the treaty after the entry into force of the amending agreement
shall, failing an expression of a different intention by that State:
1. be considered as a party to the treaty as amended; and
2. Be considered as a party to the unlamented treaty in relation to any party to the treaty not bound by
the amending agreement (Art.40, VCLOT).

b. Agreements to modify multilateral treaties between certain of the parties only.

Two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as
between themselves alone if:
(a) the possibility of such a modification is provided for by the treaty; or
(b) the modification in question is not prohibited by the treaty and:

1. does not affect the enjoyment by the other parties of their rights under the treaty or the performance
of their obligations;

2. Does not relate to a provision, derogation from which is incompatible with the effective execution of
the object and purpose of the treaty as a whole. Unless in a case falling under paragraph 1 (a) the treaty
otherwise provides, the parties in question shall notify the other parties of their intention to conclude
the agreement and of the modification to the treaty for which it provides (Art. 41, VCLOT). 12)
Termination of treaties.
a. Expiration of the term, or withdrawal of a party in accordance with the treaty;
b. Extinction of a party to the treaty, when the treaty rights and obligations would not devolve upon the
successor state;
c. Mutual agreement of parties;
d. Denunciation or desistance by a party; e. Supervening impossibility of performance;
f. Conclusion of a subsequent inconsistent treaty;
g. Loss of subject matter;
h. Material breach or violation of treaty;
i. Fundamental Change of Circumstance (Rebus sic stantibus);
j. The doctrine of jus cogens, or the emergence of a new peremptory norm of general international law
which renders void any existing treaty conflicting with such norm (Nachura, supra.).

Nationality and Statelessness

1. Nationality.
Membership in a political community with its concomitant rights and duties (Id.).

2. It is for each State to determine under its own law who are its nationals. This law shall be recognized
by other States in so far as it is consistent with international conventions, international custom, and the
principles of law generally recognized with regard to nationality (Art. 1, 1930 Hague Convention on
Questions Relating to the Conflict of Nationality Laws)

3. Any question as to whether a person possesses the nationality of a particular State shall be
determined in accordance with the law of that State (Art. 2, Id.).

4. Multiple Nationality.
Subject to the provisions of the present Convention, a person having two or more nationalities may be
regarded as it’s national by each of the States whose nationality he possesses (Art. 3, Id.).
a. A person having two or more nationalities may be regarded as its national by each of the States
whose nationality he possesses, and a State may not give diplomatic protection to one of its nationals
against a State whose nationality that a person possesses (Id., citing Nottenbohm Case, ICJ Reports,
1955).
b. Principle of Effective Nationality.
If a person has more than one nationality, he shall, within a third State be treated as if he had only one;
the third State shall recognize exclusively either the nationality of the State in which he is habitually and
principally resident, or the nationality of the State with which he appears in fact to be most closely
connected (Id.).
c. If a person without any voluntary act on his own, possesses double nationality, he may renounce one
of them with the permission of the State whose nationality he wishes to surrender and, subject to the
laws of the State concerned, such permission shall not be refused if that person has his habitual
residence abroad (Id).

5. A refugee is a person who, owing to a well-founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group or political opinion, is outside the country
of his nationality and is unable or owing to such fear, is unwilling to avail himself of the protection of
that country; or who, not having a nationality and being outside the country of his former habitual
residence, is unable or, or owing to such fear, is unwilling to return to it (Convention Relating to the
Status of Refugees, Art. 1 A[2]; Magallona, Fundamentals of Public International Law, 2005 Ed.).
6. The right of a refugee not to be expelled or returned “in any manner whatsoever to the frontiers of
territories where his life or freedom would be threatened on account of his race, religion, nationality,
membership of a particular social group or political opinion.”
The prohibition of such expulsion or return becomes an obligation of States parties to the Convention
Relating to the Status of Refugees (Magallona, Fundamentals of Public International Law, 2005 Ed.).

7. Statelessness. The status of having no nationality, as a consequence of being born without any
nationality, or as a result of deprivation or loss of nationality (Labor v. COMELEC, 176 SCRA 1).
a. Stateless Person means a person who is not considered as a national by any State under the operation
of its law (Art. 1 [1], 1954 Convention relating to the Status of Stateless Persons [CSSP]).
b. Every stateless person has duties to the country in which he finds himself, which require in particular
that he conform to its laws and regulations as well as to measures taken for the maintenance of public
order (Art. 2, CSSP).
c. Rights of stateless persons:
1) Non-discrimination (Art. 3, CSSP);
2) Freedom to practice their religion and freedom as regards the religious education of their children
(Art. 4, CSSP); 3) Access to courts of law (Nachura, supra.)
4) Rationing of products in short supply (Id.);
5) Elementary education (Id.);
6) Public relief and assistance (Id.);
7) Labor legislation and social security (Id.).

d. In that same convention, the contracting States also agreed to accord stateless persons lawfully
staying in their territory treatment as favorable as possible, and in the event, not less favorable than
that accorded to aliens generally in the same circumstances, relative to:
1) Acquisition of movable and immovable property;
2) Right of association in nonpolitical and non-profitmaking associations and trade unions;
3) Gainful employment and practice of liberal professions;
4) Housing and public education other than elementary education;
5) Freedom of movement (Id.; see also Art. 6, CSSP). e. Everyone has the right to a nationality.

No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality (Art.
15, Universal Declaration on Human Rights).

f. The CSSP shall not apply:

1) To persons who are at present receiving from organs or agencies of the United Nations other than the
United Nations High Commissioner for Refugees protection or assistance so long as they are receiving
such protection or assistance;
2) To persons who are recognized by the competent authorities of the country in which they have taken
residence as having the rights and obligations which are attached to the possession of the nationality of
that country;

3) To persons with respect to whom there are serious reasons for considering that:
a) They have committed a crime against peace, a war crime, or a crime against humanity, as defined in
the international instruments drawn up to make provisions in respect of such crimes;
b) They have committed a serious non-political crime outside the country of their residence prior to
their admission to that country; c) They have been guilty of acts contrary to the purposes and principles
of the United Nations. ---oOo--