PUBLIC INTERNATIONAL LAW

OUTLINE FINALS
Nature of International Law
1. Obligation Erga Omnes
- The general rule is that only the directly injured State is entitled to act against
the violation of an international obligation by another State.
- Obligations erga omnes are concerned with the enforceability of norms
of international law, the violation of which is deemed to be an offense
not only against the State directly affected by the breach, but also
against all members of the international community.
2. Jus Cogens
- a treaty is void if, at the time of its conclusion, it conflicts with a
peremptory norm of general international law.
- A peremptory norm of general international law is a norm accepted and
recognized by the international community of States as a whole as a
norm from which no derogation is permitted and which can be modified
only by a subsequent norm of general international law having the
same character. – Art. 53 of the Vienna Convention on the Law of Treaties.
N.B. Jus Cogens is more superior than Obligation erga omnes.
3. Ex Aequo et bono
- A decision in which equity overrides all rules.
- While a judge may not give a decision ex aequo et bono, he/she can use equity
to interpret or fill gaps in the law, even when there is no express authorization
to do so. The principle of equity is a general principle common to
national legal systems.

DOCTRINE OF TRANSFORMATION
- It must be expressly and specifically transformed into domestic law
through the appropriate constitutional machinery such as an act of
Congress.
DOCTIRNE OF INCORPORATION
- International law, wherever any question arises which is properly the object of
its jurisdiction, is adopted in its full extent by a common law, and is
held to be part of the law of land.

Article 38(2), ICJ Statute

2. This provision shall not prejudice the power of the Court to decide a case ex aequo
et bono, if the parties agree thereto.
❖ INTERNATIONAL LAW V. NATIONAL LAW
❖ SOURCES OF INTERNATIONAL LAW
 Art. 38, ICJ Statute
1. The Court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply:

❖ international conventions, whether general or particular, establishing

rules expressly recognized by the contesting states;

❖ international custom, as evidence of a general practice accepted as law;

❖ the general principles of law recognized by civilized nations;

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.

Art. 53, 1969 Vienna Convention on Treaties

Treaties conflicting with a peremptory norm of
general international law (“jus cogens”)
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of
general international law. For the purposes of the present Convention, a peremptory
norm of general international law is a norm accepted and recognized by the
international community of States as a whole as a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of general
international law having the same character.

Vienna Convention on the Law of Treaties

The Vienna Convention on the Law of Treaties is the law on treaties and governs treaties between
states.
Definition of Treaties:
“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.” [The Vienna Convention]
Definition of “ratification”
A formal act by which a state confirms and accepts the provision of a treaty concluded
by its representative.
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.
Signing a treaty is merely a mark of authentication and a symbol of good faith. It is a
different step from ratification. The Philippines is not bound by treaty law or international
law to ratify the treaty it has signed. The signature on the Rome Statute does not signify
final consent. Ratification is what will bind the Philippines to the Statute’s provisions.
The Statute itself requires that the signature of the representatives of the states be subject to
ratification, acceptance or approval of the signatory states. There is no legal obligation to
ratify a treaty, but a refusal to ratify must be based on substantial grounds.
After approval has been granted under a state’s own internal procedures, it will notify
the other parties that they consent to be bound by the treaty. This is called
ratification. The treaty is now officially binding on the state.
The President can unilaterally withdraw from a treaty.
Thus, the president can withdraw from a treaty as a matter of policy in keeping with our legal
system, if a treaty is unconstitutional or contrary to provisions of an existing prior
statute. However, the president may not unilaterally withdraw from a treaty: (a)
when the Senate conditionally concurs, such that it requires concurrence also to
withdraw; or (b) when the withdrawal itself will be contrary to a statute, or to a
legislative authority to negotiate and enter into a treaty, or an existing law which
implements a treaty.
❖ SUBJECTS OF INTERNATIONAL LAW
States are the dominant subjects of international law. But there are others:
international organizations, insurgents, liberation movements, and, in a
more limited way, individuals.

Other Subjects of International Law: International Organizations and Individuals

An actor of international law is an entity of a type recognized by customary law
as:
1. capable of possessing rights and duties;
2. capable of bringing international claims; and
3. Having these capacities conferred upon it. (Brownlie, Chapter 3)

Art. 1, Montevideo Convention on Rights & Duties of States, 49 Stat

3097, 1933 40
The state as a person of international law should possess the following
qualifications:

a) a permanent population;
b) a defined territory;
c) government; and
d) capacity to enter into relations with the other states.
-provides only as a guideline. Not absolute

❖ Nationality and Statelessness

Vienna Convention on the Law of Treaties

 The 1954 Convention is designed to ensure that stateless people enjoy a minimum set of
human rights. It establishes the legal definition of a stateless person as someone who
is “not recognized as a national by any state under the operation of its law.” Simply put,
this means that a stateless person is someone who does not have the nationality of any
country. The 1954 Convention also establishes minimum standards of treatment for
stateless people in respect to a number of rights. These include, but are not limited to,
the right to education, employment and housing. Importantly, the 1954 Convention
also guarantees stateless people a right to identity, travel documents and
administrative assistance.

The Nationality Principle- every state has jurisdiction over its nationals even when
those nationals are outside the state.

Each state has the right to decide who are its nationals using either the principle of jus
sanguinis or jus soli or naturalization laws. However, for a state to claim a person as a
national, the state must have reasonable connection or an “effective link” with that
person. The consent of the individual alone is not enough for him to be recognized
by other states as a national of the state to which he claims to belong.

❖ DOCTRINE OF STATE RESPONSIBILITY

- The state is responsible for all actions of its officials and organs, even
if the organ or official is formally independent and even if the organ or official
is acting ultra vires.

International Responsibility- Every wrongful act of a state entails the international

responsibility of that State.
- It arises as a consequence of illegal acts or of failure of a state to observe
obligations under international law
- It is the necessary corollary of a right, such that rights of an international
responsibility. Thus, if a state violates an international obligation, it bears responsibility
for that violation.
-the basis of the rules on state responsibility, at present, is the Draft Articles on
Responsibility of States for Internationally Wrongful Acts, prepared by the international
law Commission.

❖ TREATMENT OF ALIENS

Extradition is an intrusion into the territorial integrity of the host State

and a delimitation of the sovereign power of the State within its own
territory. The act of extraditing amounts to a "delivery by the State of a person
accused or convicted of a crime, to another State within whose territorial
jurisdiction, actual or constructive, it was committed and which asks for his
surrender with a view to execute justice." Since punishment of fugitive criminals
is dependent mainly on the willingness of host State to apprehend them and revert
them to the State where their offenses were committed, jurisdiction over such
fugitives and subsequent enforcement of penal laws can be effectively
 accomplished only by agreement between States through treaties of
extradition.

The following principles govern extradition: (1) No state is obliged to extradite unless
there is a treaty; (2) Differences in legal system can be an obstacle to interpretation of
what the crime is; (3) Religious and political offenses are not extraditable.

The procedure for extradition is normally through diplomatic channels.

The Court emphasized that bail may be granted to a possible extraditee only upon
a clear and convincing showing (1) that he will not be a flight risk or a danger
to the community, and (2) that there exist special, humanitarian and compelling
circumstances.

In defining the extraditable offenses, the Treaty includes all offenses "punishable
under the Laws of both Contracting States by imprisonment for a period of at least
one (1) year, or by a more severe penalty."

For the purpose of the definition, the Treaty states that:

(a) an offense shall be an extraditable offense whether or not the laws of the Contracting
States place the offense within the same category or denominate the offense by the same
terminology;
(b) the totality of the acts or omissions alleged against the person whose extradition is
requested shall be taken into account in determining the constituent elements of the
offense.

“Deportation or forcible transfer of population" means forced

displacement of the persons concerned by expulsion or other coercive
acts from the area in which they are lawfully present, without grounds
permitted under international law.

Generally, the right of the President to expel or deport aliens whose presence is
deemed inimical to the public interest is as absolute and unqualified as the right
to prohibit and prevent their entry into the country.

However, under clause 1 of Section 37(a) of the Immigration Act of 1940 an "alien
who enters the Philippines after the effective date of this Act by means of false
and misleading statements or without inspection and admission by the immigration
authorities at a designated port of entry or at any place other than at a designated
port of entry" is subject to deportation.

❖ International Human Rights Law

International human rights law lays down obligations which States are bound to
respect. By becoming parties to international treaties, States assume obligations and
duties under international law to respect, to protect and to fulfil human rights. The
obligation to respect means that States must refrain from interfering with or curtailing the
 enjoyment of human rights. The obligation to protect requires States to protect
individuals and groups against human rights abuses. The obligation to fulfil means that
States must take positive action to facilitate the enjoyment of basic human rights.
- The same with the 1987 Constitution, Bill of Rights
The Universal Declaration of Human Rights (UDHR) is a milestone document in the history
of human rights. Drafted by representatives with different legal and cultural backgrounds from
all regions of the world, the Declaration was proclaimed by the United Nations General Assembly
in Paris on 10 December 1948 (General Assembly resolution 217 A) as a common standard of
achievements for all peoples and all nations. It sets out, for the first time, fundamental human
rights to be universally protected and it has been translated into over 500 languages. The
UDHR is widely recognized as having inspired, and paved the way for, the adoption of more than
seventy human rights treaties, applied today on a permanent basis at global and regional levels
(all containing references to it in their preambles).

International Convention on Civil and Political Rights

ICCPR is an international human rights treaty adopted in 1966. The UK agreed to follow
ICCPR in 1976. It enables people to enjoy a wide range of human rights, including those relating
to: freedom from torture and other cruel, inhuman or degrading treatment or punishment.
fair trial rights; freedom of thought, religion and expression; privacy, home and family
life; and equality and non-discrimination.

International Convention on Economic, Social and Cultural Rights

ICESCR is an international human rights treaty adopted in 1966. The UK agreed to follow ICESCR
in 1976. It ensures the enjoyment of economic, social and cultural rights, including the rights to:
education; fair and just conditions of work; an adequate standard of living; the highest
attainable standard of health; social security

International Criminal Court

The International Criminal Court (ICC) investigates and, where warranted, tries
individuals charged with the gravest crimes of concern to the international
community: genocide, war crimes, crimes against humanity and the crime of
aggression.
The Court's founding treaty, called the Rome Statute, grants the ICC jurisdiction over four
main crimes.
First, the crime of genocide is characterized by the specific intent to destroy in whole or
in part a national, ethnic, racial or religious group by killing its members or by other
means: causing serious bodily or mental harm to members of the group; deliberately
inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part; imposing measures intended to prevent births within
the group; or forcibly transferring children of the group to another group.
Second, the ICC can prosecute crimes against humanity, which are serious violations
committed as part of a large-scale attack against any civilian population. The 15 forms of
crimes against humanity listed in the Rome Statute include offences such as murder, rape,
imprisonment, enforced disappearances, enslavement – particularly of women and
children, sexual slavery, torture, apartheid and deportation.
Third, war crimes which are grave breaches of the Geneva conventions in the context of
armed conflict and include, for instance, the use of child soldiers; the killing or torture of
persons such as civilians or prisoners of war; intentionally directing attacks against
hospitals, historic monuments, or buildings dedicated to religion, education, art,
science or charitable purposes.
Finally, the fourth crime falling within the ICC's jurisdiction is the crime of aggression. It is the
use of armed force by a State against the sovereignty, integrity or independence of
another State. The definition of this crime was adopted through amending the Rome Statute at
the first Review Conference of the Statute in Kampala, Uganda, in 2010.
ICJ – jurisdiction is limited to state
ICC – will be able to charge individuals
❖ PEACEFUL SETTLEMENT OF DISPUTES
International dispute settlement is concerned with the techniques and institutions
which are used to solve international disputes between States and/or international
organizations. International disputes can be solved either by use of force
(coercion) or by peaceful settlement. Techniques used for peaceful settlement
of international disputes are negotiation, inquiry, mediation, conciliation,
arbitration, judicial settlement, resort to regional agencies or
arrangements, or other peaceful means of their own choice (Art. 33, UN
Charter).
Reciprocity- “Reciprocity in the case of Declarations accepting the compulsory jurisdiction of the
Court enables a Party to invoke a reservation to that acceptance which it has not
expressed in its own Declaration but which the other Party has expressed in its
Declaration.”

❖ The Use of Force Short of War

This rule is codified in Article 2(4) of the United Nations Charter. Article 2(4)
provides that a UN member state cannot threaten or use force against the
territorial integrity or political independence of another state, or in any
way that diverges from the purposes of the UN.
❖ International Court of Justice -limited to states only
Arts. 92, 93, 94, 96, UN Charter
Article 92, UN Charter
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.
Article 93
1. All Members of the United Nations are ipso facto parties to the Statute
of the International Court of Justice.
2. A state which is not a Member of the United Nations may become
a party to the Statute of the International Court of Justice on
conditions to be determined in each case by the General Assembly
upon the recommendation of the Security Council.
Article 94
1. Each Member of the United Nations undertakes to comply with the decision
of the International Court of Justice in any case to which it is a party.
2. If any party to a case fails to perform the obligations incumbent
upon it under a judgment rendered by the Court, the other party may have
recourse to the Security Council, which may, if it deems necessary, make
recommendations or decide upon measures to be taken to give effect to the
judgment.
Article 96
1. The General Assembly or the Security Council may request the
International Court of Justice to give an advisory opinion on any legal question.
2. Other organs of the United Nations and specialized agencies, which may at
any time be so authorized by the General Assembly, may also request advisory
opinions of the Court on legal questions arising within the scope of their activities.

Arts. 1, 34(1), 35(1), ICJ Statute

Article 1
The International Court of Justice established by the Charter of the United Nations as the
principal judicial organ of the United Nations shall be constituted and shall function in
accordance with the provisions of the present Statute.
Article 34(1)
1. Only states may be parties in cases before the Court.
Article 35(1)
1. The Court shall be open to the state’s parties to the present Statute.

A. Applicable Law
Arts. 38 and 59, ICJ Statute
 Article 38
1. The Court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply:

• international conventions, whether general or particular, establishing rules

expressly recognized by the contesting states;

• international custom, as evidence of a general practice accepted as law;

• the general principles of law recognized by civilized nations;

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.
Article 59
The decision of the Court has no binding force except between the parties and
in respect of that particular case.
B. Jurisdiction
Arts. 36(1), (2) & (3), ICJ Statute

Article 36
1. The jurisdiction of the Court comprises all cases which the parties refer to it
and all matters specially provided for in the Charter of the United Nations or in
treaties and conventions in force.

2. 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:

• the interpretation of a treaty;

• any question of international law;

• the existence of any fact which, if established, would constitute a breach of an

international obligation;

the nature or extent of the reparation to be made for the breach of an international
obligation.

3. The declarations referred to above may be made unconditionally or on condition

of reciprocity on the part of several or certain states, or for a certain time.
Advisory Opinions
 An advisory opinion is legal advice provided to the United Nations or a specialized
agency by the International Court of Justice, in accordance with Article 96 of the
UN Charter.
Article 65, ICJ Statute
1. The Court may give an advisory opinion on any legal question at the request of
whatever body may be authorized by or in accordance with the Charter of the
United Nations to make such a request.
2. Questions upon which the advisory opinion of the Court is asked shall be laid before
the Court by means of a written request containing an exact statement of the
question upon which an opinion is required, and accompanied by all documents
likely to throw light upon the question.
Article 67
The Court shall deliver its advisory opinions in open court, notice having been
given to the Secretary-General and to the representatives of Members of the
United Nations, of other states and of international organizations immediately
concerned.
❖ INTERNATIONAL HUMANITARIAN LAW (IHL)
- Used to be known as the Laws of War.
- It provides for instances when the use of armed force is justifiable
(jus ad be Hum) and it regulates the conduct of armed conflict (jus in
bello)
- Branch of International Law (IL) That governs relations between members of
the international community; aims to maintain peace, to protect the human
being in a just order, and to promote social progress and freedom
- Seeks to mitigate the effects of war or armed conflict and to alleviate
human suffering: limits the choice of means and methods of conducting
military operations; and obliges the belligerents to spare persons who do not
or no longer participate in hostile actions
- Protects every individual not or no longer actively involved in hostilities
(including wounded and sick).
Article 2(4) provides that a UN member state cannot threaten or use force against the territorial
integrity or political independence of another state, or in any way that diverges from the purposes
of the UN.
Categories of armed conflicts:
a) International armed conflicts - An IAC occurs when one or more States have recourse
to armed force against another State, regardless of the reasons or the intensity of this
confrontation. Relevant rules of IHL may be applicable even in the absence of open hostilities.
Moreover, no formal declaration of war or recognition of the situation is required. The
existence of an IAC, and as a consequence, the possibility to apply International Humanitarian
Law to this situation, depends on what actually happens on the ground. It is based on factual
conditions. For example, there may be an IAC, even though one of the belligerents does not
recognize the government of the adverse party. The Commentary of the Geneva Conventions of
1949 confirms that "any difference arising between two States and leading to the
intervention of armed forces is an armed conflict within the meaning of Article 2, even if one
of the Parties denies the existence of a state of war. It makes no difference how long the conflict
lasts, or how much slaughter takes place".
b) Internal or non-international armed conflict – Civil wars or rebellion do not violate
international law. Art. 2(4) of the Charter do not apply to internal conflicts.
- Outside help for governments experiencing rebellion is generally considered legitimate
provided requested by the government. Aid to rebels is contrary to international law.
Common Article 3 applies to "armed conflicts not of an international character occurring
in the territory of one of the High Contracting Parties". These include armed conflicts
in which one or more non-governmental armed groups are involved. Depending on the
situation, hostilities may occur between governmental armed forces and non-governmental armed
groups or between such groups only. As the four Geneva Conventions have universally been
ratified now, the requirement that the armed conflict must occur "in the territory of one of the
High Contracting Parties" has lost its importance in practice. Indeed, any armed conflict between
governmental armed forces and armed groups or between such groups cannot but take place on
the territory of one of the Parties to the Convention
c) War of national liberation
Apart from regular, inter-state armed conflicts, Additional Protocol I extends the definition of IAC
to include armed conflicts in which peoples are fighting against colonial domination,
alien occupation or racist regimes in the exercise of their right to self-determination
(wars of national liberation).
❖ Core international obligations of states in International Humanitarian Law

❖ Principles of International Humanitarian Law

a) Treatment of civilians – States must never make civilians the object of attack and
must consequently never use weapons that are incapable of distinguishing between
civilian and military targets
b) Prisoners of war – POWs must be treated humanely and with "respect for their
person and their honor." They cannot be subjected to coercive interrogation, and IHL
sets out minimum conditions of internment for POWs, addressing issues such as
accommodation, food, clothing, hygiene and medical care.
❖ Law on neutrality
- In a conflict among various powers, there are always some who prefer to
stay out of the fray. They adopt an attitude of impartiality towards
the belligerents and creates both rights and duties in the neutral
states. The decision to adopt or not to adopt a neutral stance is not governed
by the international law. It is dictated by politics. For that reason, there is no
special mode of assertion required.
❖ International Environmental Law
Principle 21 of the Stockholm Declaration
States have the sovereign right to exploit their own resources
pursuant to their own environmental policies, and the
 responsibility to ensure that activities within their jurisdiction or
control do not cause damage to the environment of other States
or of areas beyond the limits of national jurisdiction.

❖ TERRITORY: LAND, AIR, SPACE

Territory as an element of a state means an area over which a state has
effective control. As the Las Palmas case, infra, shows, control over
territory is of the essence of a state. The exact boundaries might be uncertain,
but there should be a definitive core over which sovereignty is exercised.
Acquisition of territory more precisely means acquisition of sovereignty
over territory. Judge Huber in the Las Palmas case said that “sovereignty over a
portion of the surface of the globe is the legal condition for the inclusion of such
portion in the territory of any particular state.”

Territory includes land, maritime areas, airspace and outer space.

Under the Palmas decision, three important rules for resolving island territorial
disputes were decided:

▪ Firstly, title based on contiguity has no standing in international law.

▪ Secondly, title by discovery is only an inchoate title.
▪ Finally, if another sovereign begins to exercise continuous and actual
sovereignty, (and the arbitrator required that the claim had to be open and public and
with good title), and the discoverer does not contest this claim, the claim by the
sovereign that exercises authority is greater than a title based on mere
discovery.

Airspace.

Before the First World War, there were those who held that the airspace was completely free.
The outbreak of the First World War brought about the realization that the use of the air had
security implications. Out of this realization came the approach which considers the air above
as an extension of the territory below. Each state has exclusive jurisdiction over the
air space above its territory. Therefore, consent for transit must be obtained from the
subjacent nation.

The present regime on air navigation has developed from the Chicago Convention on
International Civil Aviation (1944) which entered into force in 1974. The Chicago Convention
created the International Civil Aviation Organization (ICAO), an agency of the United Nations, and
prescribed the rules for international civil aviation.

Outer Space.

The assertion under air space law used to be that air sovereignty extended to an unlimited extent,
usque ad coelum. The development of the law on outer space modified this assertion. Sovereignty
over air space extends only until where outer space begins. But where is that?
There is as yet no definite answer to that question. The answer will eventually come from
technological capabilities of conventional aircraft to reach greater heights. Different numbers
ranging from fifty to one hundred miles from the earth have been mentioned. Nonetheless, the
development of outer space law has started. It is now accepted that outer space, wherever
that might be, and celestial bodies, are not susceptible to appropriation by any state.
Among the first achievements in this area is the 1967 Treaty on the Exploration and Use of Outer
Space.

Principle of Uti Possidetis Juris. – Successor states shall respect colonial boundaries of
colonial rulers.

❖ Jurisdiction of States

▪ Territoriality principle – means a State exercises an exclusive

jurisdiction with persons and etc, within its territory.

▪ Nationality principle and statelessness – State may enact laws that

may be binding against its nationals whenever they may be in the world
(offender: filipino- so PH has jurisdiction).

- sovereign state is entitled to regulate the conduct of its own

nationals anywhere, for the reason that such nationals owe a duty to
obey the state’s laws even when they are outside the state.

▪ Protective principle – pertains to the right of the State to exercise extra

territorial jurisdiction. (Art. 2 of the RPC)
- a state may exert jurisdiction over conduct committed
outside its territory – by its nationals and non-nationals
alike – if the conduct falls within a limited class of offenses
directed against state security or critical state interests or
functions.

▪ Universality principle – provides that a state claims extra-territorial

jurisdiction all crimes regardless of who committed them. Crimes terrorism,
genocide and etc.
-a state may exercise extraterritorial jurisdiction even in
the absence of all four jurisdictional links discussed above –
but only if the conduct alleged constitutes one of a very few,
specified international crimes. Universal jurisdiction derives
from the view that certain conduct (such as genocide, torture,
piracy, aircraft hijacking, hostage taking, war crimes, and the slave
trade) so concerns the entire international community of
states that the prosecution of offenders by any state is
warranted. It is not limited to criminal jurisdiction but may also
involve civil remedies, such as remedies in tort or restitution for
victims.
 Passive personality principle – State has jurisdiction over crimes of its
▪
own national even if outside territory. (Offender is not a filipino but the
victim is a filipino- ph still has jurisdiction because victim is a filipino) even
crimes committed abroad.
-This is the second of the two principles that support the exercise
of jurisdiction by reference to a person involved in the conduct at
issue. (The other principle is nationality/active personality,
described in the immediately preceding section.) What matters in
this second instance is the nationality of the victim or
person at whom the conduct at issue was directed. For this
reason, it is called the “passive personality” principle.
❖ IMMUNITY FROM JURISDICTION

Act of State Doctrine

- is one of the methods by which States prevent their national courts from
deciding disputes which relate to the internal affairs of another State,
the other two being immunity and non-justiciability. It is an avoidance
technique that is directly related to a state’s obligation to respect the
independence and equality of other States by not requiring them to
submit to adjudication in a national court or to settlement of their
disputes without their consent. It requires the forum court to exercise
restraint in the adjudication of disputes relating to legislative or other
governmental acts which a foreign State has performed within its territorial
limits.

It is a recognized principle of international law and under our system of separation of

powers that diplomatic immunity is essentially a political question and courts
should refuse to look beyond a determination by the executive branch of the
government, and where the plea of diplomatic immunity is recognized and
affirmed by the executive branch of the government as in the case at bar, it is
then the duty of the courts to accept the claim of immunity upon appropriate
suggestion by the principal law officer of the government, the Solicitor General
in this case, or other officer acting under his direction.

TERRITORY: LAW OF THE SEA

International Convention on the Law of the Sea (UNCLOS), ILM 21, 1982
- The United Nations Convention on the Law of the Sea (UNCLOS) is an
international treaty which was adopted and signed in 1982.
- UNCLOS provides a comprehensive legal framework governing all
activities and uses of the world's seas and oceans.
 - The Convention establishes general obligations for safeguarding the
marine environment and protecting freedom of scientific research on
the high seas.
- Applicable for Maritime Dispute only. (In one case it was used for Territorial
Dispute – Eritrea-Yemen Arbitration)
Internal Waters
- The waters on the landward side of the baseline of the territorial sea
form part of the internal waters of the State (Article 8)
- Include ports, harbors, rivers, lakes, canals, etc
- The State has sovereignty over the internal waters. (Article 2)
Territorial Sea
- It is the belt of sea outwards from the baseline and up to 12 nautical
miles beyond. (Article 3)
Baseline: It is a line from which the breadth of the territorial sea and
other maritime zones is measured
Two Ways of Drawing the Baseline:
a. Normal Baseline - the normal baseline for measuring the
breadth of the territorial sea is the low-water line along the
coast as marked on large-scale charts officially recognized by
the coastal State. (Article 5)
b. Straight Baseline - the method of straight baselines joining
appropriate points may be employed in drawing the
baseline from which the breadth of the territorial sea is
measured (Article 7)
Things to note: The drawing of straight baselines must not
depart to any appreciable extent from the general direction of
the coast

When to use the straight baseline method?

1. In localities where the coastline is deeply indented and
cut into; or
2. If there is a fringe of islands along the coast in its
immediate vicinity.
Right of Innocent Passage
- Ships of all States, whether coastal or land-locked, enjoy the right of innocent
passage through the territorial sea (Article 17)

Passage must be continuous and expeditious. But a ship is allowed

to stop and anchor if:
o Such anchoring or stopping is incidental to ordinary
navigation; or
 o Rendered necessary on account of force majeure or for the
purpose of rendering assistance to persons, ships or
aircraft in danger or distress.

Archipelago
- it means a group of islands, including parts of islands, interconnecting waters
and other natural features which are so closely interrelated that such islands,
waters and other natural features form an intrinsic geographical,
economic and political entity, or which historically have been regarded as
such. (Article 46)
Archipelagic Strate
- it means a State constituted wholly by one or more archipelagos and
may include other islands (Article 46)
Contiguous Zone
- It is a maritime zone which is not beyond 24 nautical miles from the
baseline from which the breadth of the territorial sea (Article 33(2)) of
the adjacent coastal state, is measured. Such may exercise certain
protective jurisdiction, to wit:
1. Prevent infringement of its customs, fiscal, immigration or sanitary
laws and regulations within its territory or territorial sea; and
2. Punish infringement of the above laws and regulations committed
within its territory or territorial sea. (Article 33(1))
In this area, the coastal state does not exercise sovereignty; only those preventive
jurisdiction as provided under the UNCLOS.
Continental Shelf
- It comprises the seabed and subsoil of the submarine areas that
extend beyond its (the coastal state’s) territorial sea throughout the
natural prolongation of its land territory to the outer edge of the continental
margin, or to a distance of 200 nautical miles from the baselines from
which the breadth of the territorial sea is measured where the outer
edge of the continental margin does not extend up to that distance. (Article
76(1))
Exclusive Economic Zone (EEZ)
- An area beyond and adjacent to the territorial sea, not extending
beyond 200nm from the baselines from which the territorial sea is
measured, in which the coastal state has sovereign rights for the
purpose of:
1. Exploring and exploiting, conserving and managing natural
resources;
 2. As well with regard to other activities for economic exploitation
and exploration zone; and
3. In which it has jurisdiction with regard artificial islands,
environmental protection and marine scientific research.
1. In the exclusive economic zone, the coastal State has:
(b) jurisdiction as provided for in the relevant provisions of this Convention with
regard to:
(i) the establishment and use of artificial islands, installations and structures;
(ii) marine scientific research;
(iii) the protection and preservation of the marine environment;
2. In exercising its rights and performing its duties under this Convention in the exclusive
economic zone, the coastal State shall have due regard to the rights and duties of other States
and shall act in a manner compatible with the provisions of this Convention.
3. The rights set out in this article with respect to the seabed and subsoil shall be exercised in
accordance with Part VI.
Artificial islands do not possess the status of islands because they have no territorial
sea of their own, and their presence does not affect the delimitation of the territorial sea, the
EEZ, or the continental shelf.
Article 58
Rights and duties of other States in the exclusive economic zone
1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to
the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation
and overflight and of the laying of submarine cables and pipelines, and other
internationally lawful uses of the sea related to these freedoms, such as those associated with
the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other
provisions of this Convention.
2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic
zone in so far as they are not incompatible with this Part.
3. In exercising their rights and performing their duties under this Convention in the exclusive
economic zone, States shall have due regard to the rights and duties of the coastal State
and shall comply with the laws and regulations adopted by the coastal State in
accordance with the provisions of this Convention and other rules of international law in so far as
they are not incompatible with this Part.
Article 70
Rights of geographically disadvantaged States
Geographically disadvantaged states- Coastal States: (a) which, for geographic reasons,
cannot claim economic zones; or (b) whose economic zones are less than 30% of the
area they could have claimed.
Land-locked state- One which does not border the sea and therefore do not have an EEZ.
1. Geographically disadvantaged States shall have the right to participate, on an equitable basis,
in the exploitation of an appropriate part of the surplus of the living resources of the exclusive
economic zones of coastal States of the same subregion or region, taking into account
the relevant economic and geographical circumstances of all the States concerned and in
conformity with the provisions of this article and of articles 61 and 62.
2. For the purposes of this Part, "geographically disadvantaged States" means coastal States,
including States bordering enclosed or semi-enclosed seas, whose geographical situation makes
them dependent upon the exploitation of the living resources of the exclusive economic zones of
other States in the subregion or region for adequate supplies of fish for the nutritional purposes
of their populations or parts thereof, and coastal States which can claim no exclusive economic
zones of their own.
3. The terms and modalities of such participation shall be established by the States
concerned through bilateral, subregional or regional agreements taking into account, inter alia:
(a) the need to avoid effects detrimental to fishing communities or fishing industries
of the coastal State;
(b) the extent to which the geographically disadvantaged State, in accordance with the provisions
of this article, is participating or is entitled to participate under existing bilateral,
subregional or regional agreements in the exploitation of living resources of the
exclusive economic zones of other coastal States;
(c) the extent to which other geographically disadvantaged States and land-locked States are
participating in the exploitation of the living resources of the exclusive economic zone of the
coastal State and the consequent need to avoid a particular burden for any single coastal State
or a part of it;
(d) the nutritional needs of the populations of the respective States.
4. When the harvesting capacity of a coastal State approaches a point which would enable it to
harvest the entire allowable catch of the living resources in its exclusive economic zone, the
coastal State and other States concerned shall cooperate in the establishment of
equitable arrangements on a bilateral, subregional or regional basis to allow for
participation of developing geographically disadvantaged States of the same
subregion or region in the exploitation of the living resources of the exclusive
economic zones of coastal States of the subregion or region, as may be appropriate
in the circumstances and on terms satisfactory to all parties. In the implementation of
this provision the factors mentioned in paragraph 3 shall also be taken into account.
5. Developed geographically disadvantaged States shall, under the provisions of this article, be
entitled to participate in the exploitation of living resources only in the exclusive economic
zones of developed coastal States of the same subregion or region having regard to the
extent to which the coastal State, in giving access to other States to the living resources of its
exclusive economic zone, has taken into account the need to minimize detrimental effects on
fishing communities and economic dislocation in States whose nationals have habitually fished in
the zone.
6. The above provisions are without prejudice to arrangements agreed upon in subregions or
regions where the coastal States may grant to geographically disadvantaged States of the same
subregion or region equal or preferential rights for the exploitation of the living resources in the
exclusive economic zones.

Delimitation of Maritime Boundaries

Delimitation
- Is a process which involves establishing the boundaries of an area
already, in principle, appertaining to the coastal state.
Rules on Delimitation of the Territorial Sea between States with Opposite or
Adjacent Coasts
GR: Left to the agreement between opposite or adjacent coasts; In the absence of
agreement, the equidistance rule applies neither state is entitled to extend its
territorial sea beyond the median line, every point of which is equidistant from the
nearest points on the baseline from which the breadth of the territorial sea is measured.
Exception: Equidistance rule shall not apply, and a different delimitation is required in
the following cases: Historic Title; Other Special Circumstances.
Rules on Delimitation of EEZ and the Continental Shelf between Adjacent or
Opposite States
By agreement among states on the basis of international law “In order to
achieve an equitable solution”; In the absence of agreement, matter shall
be subject to UNCLOS dispute settlement measures.
The High Seas
- These refer to waters which do not constitute the internal waters,
archipelagic waters, territorial sea, and exclusive economic zone of a
state. They are beyond the jurisdiction and sovereign rights of the
states.
Fundamental Principles on its Legal Status
o Freedom of the High Seas- The High seas are open to all states and
no state can validly subject any part of the high seas to its
sovereignty.
o Peaceful purposes- They are reserved for peaceful purposes.
o Flag state jurisdiction- The flag state has exclusive jurisdiction
over ships sailing under its flag in the high seas.
Freedom of the High Seas
Both coastal and land-locked states are entitled to the following rights in
the high seas, subject to conditions laid down by UNCLOS: nof-lcs
 o Freedom of navigation
o Freedom of overflight
o Freedom of fishing
o Freedom to lay submarine cables and pipelines
o Freedom to construct artificial islands and other
installations
o Freedom of scientific research
These freedoms shall be exercised with due regard to all states with respect
to the EEZ of a coastal state.

International Seabed Area

- It is the seabed and ocean floor and subsoil thereof beyond the limits
of national jurisdiction.
- No state shall claim or exercise sovereignty or sovereign rights over any part
of the Area or its resources, nor shall any state or juridical person appropriate
any part thereof.
- The Area and its resources are the common heritage of mankind. All rights
over its resources are vested in mankind as a whole. Its exploration and
exploitation are carried out for the benefit of mankind by the International
Seabed Authority, acting on behalf of all mankind.
Rule on Resources in the Area
GR- No state or natural or juridical person shall claim, acquire, or exercise
rights with respect to the minerals recovered from the Area
Exp- In accordance with the UNCLOS

Peaceful Purposes- The area shall be open to use exclusively for peaceful
purposes by all states.

Navigation
Right of Navigation
- Every State, whether coastal or land-locked, has the right to sail ships
flying its flag on the high seas.
Nationality of Ships is that of Flag State
Ships carry the nationality of the state whose flag they are entitled to
fly. There must be a genuine link between the state and the ship. The
purpose behind including this concept is to secure more effective implementation
of the duties of the flag state. It is not a criterion by reference to which the validity
of the registration of ships in a flag state may be challenged by other states.
 Such state shall have its own conditions for the grant of its nationality to ships,
their registration within its territory, and for the right to fly its flag.
A ship sail under the flag of one State only. A ship with two or more states
has no nationality and may not claim any of the nationalities represented
by these flags. It cannot also change its flag during voyage or while in a
port of call, except in case of transfer of ownership or on the basis of
change of registry.

Duties of a Flag State with respect to ships flying its flag

1. Maintain a registry of ships authorized to fly its flag
2. Take jurisdiction over the internal affairs of the ship
3. Ensure safety at sea of the ship
4. Ensure ship is surveyed by a qualified surveyor of ships and is well-
equipped
5. Ensure ship is manned by qualified master, officers, and crew
6. Ensure the officers and crew are conversant with and are required to
observe international regulations.

Duty to Render Assistance in Distress

1. To render assistance to any person found at sea in danger of being lost
2. To proceed with all possible speed to the rescue of persons in distress, if
informed of their need of assistance, in so far, as such action may reasonably be
expected of him
3. After a collision, to render assistance to the other ship, its crew and its
passengers.

Flag state Jurisdiction in the High Seas

In the event of a collision or any other incident of navigation concerning a
ship on the high seas, involving the penal or disciplinary responsibility of the
master or of any other person in the service of the ship. The flag state and the
State of nationality of the person shall have concurrent jurisdiction.

GR: Exclusive jurisdiction over all ships sailing its flag in the high seas. It covers
all legislative and enforcement jurisdiction over administrative and social matters
 concerning the ship, its master, officers, and crew. It has Penal or disciplinary
powers.
Exceptions:
The State of which the person is a national
o Piracy
o On persons or ship engaged in unauthorized broadcasting
from the high seas
o Exercise of the right of hot pursuit
o Pollution from a marine casualty
Warships and Ships owned or operated by a State and used only on government non-
commercial service enjoys complete immunity from jurisdiction of any other state
other than the flag state.
Unauthorized Broadcasting
It refers to the transmission of sound radio or television broadcasts from a ship or
installation on the high seas intended for reception by the general public, contrary
to international regulations.
All States shall cooperate in the suppression of unauthorized broadcasting from
the high seas.
Right to Visit
A warship may board a foreign ship not protected by immunity in the high seas if
there is reasonable ground of suspecting the foreign ship that is:
1. Engaged in piracy
2. Engaged in slave trade
3. Engaged in unauthorized broadcasting
4. Without nationality
5. Of the same nationality as the warship but flying a foreign flag
or refusing to show its flag.

Right of Hot Pursuit

It’s the right of a coastal state to pursue a foreign ship beyond the maritime
zone over which it has jurisdiction provided the following:
o Pursuing ship must have given a visual or auditory signal to
stop at a distance which enables it to be seen or hears by
foreign ship.
o Pursuit was commenced when the foreign ship is still within
the internal waters, archipelagic waters and territorial sea
or the contiguous zone of the pursuing state.
 o Pursuit must not have been interrupted.
o May be exercised only by warships or military aircraft or
other ships of government service and with authority.
Pursuit ceases as soon as the ship pursued enters the territorial sea of its own state
or of a third state.

Jurisprudence
Romulo v. Vinuya

Within the limits prescribed by international law, a State may exercise diplomatic
protection by whatever means and to whatever extent it thinks fit, for it is its own
right that the State is asserting. Should the natural or legal person on whose behalf it
is acting consider that their rights are not adequately protected, they have no remedy
in international law. All they can do is resort to national law, if means are available, with
a view to furthering their cause or obtaining redress. All these questions remain within the
province of municipal law and do not affect the position internationally.

Even the invocation of jus cogens norms and erga omnes obligations will not alter
this analysis. Petitioners have not shown that the crimes committed by the Japanese
army violated jus cogens prohibitions at the time the Treaty of Peace was signed, or
that the duty to prosecute perpetrators of international crimes is an erga omnes
obligation or has attained the status of jus cogens.

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. 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.

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

Edye v. Robertson

***“A treaty is primarily a compact between independent nations. It depends for the
enforcement of its provisions on the interest and the honor of the governments which
are parties to it. If these fail, its infraction becomes the subject of international
negotiations and reclamations, so far as the injured party chooses to seek redress,
which may in the end be enforced by actual war. It is obvious that with all this the
judicial courts have nothing to do and can give no redress.
But a treaty may also contain provision which confer certain rights upon the citizens
or subjects of one nation residing in the territorial limits of the other, which partake of
the nature of municipal law, and which are capable of enforcement as between private parties in
the courts of the country.

…The constitution of the United States places provisions in the treaties in the same category as
other laws of Congress by its declaration that “this constitution and the laws made in
pursuance thereof, and all treaties made or which shall be made under authority of
the United States, shall be the supreme law of the land”.

A treaty, then, is a law of the land as an act of Congress is, whenever its provisions
prescribe a rule by which the rights of the private citizen or subject may be
determined. And when such rights are of a nature to be enforced in a court of justice,
that court resorts to the treaty for a rule decision for the case before it as it would to
a statute.

But even in this aspect of the case there is nothing in this law which makes it irrepealable or
unchangeable. The constitution gives it no superiority over and act of Congress in this respect,
which may be repealed or modified by an act of a later date. Nor is there anything in its essential
character, or in branches of the government by which the treaty is made, which gives it this
superior sanctity.

***The court opined that so far as a treaty made by the United States with any foreign
nation can become the subject of judicial cognizance in the courts of this country, it
is subject to such acts as Congress may pass for its enforcement, modification, or
repeal.”

Whitney v. Robertson

ISSUE: Where a treaty and an act of legislation is in conflict, will the one last in date control?

RULING: Yes. ***The one with a later date will control where a treaty and an act of
legislation conflict. The act of congress under which the duties were collected was passed
after the treaty and therefore is controlling.

***A later inconsistent statute does not abrogate or repeal a treaty. The treaty still
exists as an international obligation although the terms of the treaty may not be
enforceable.

It follows, therefore, that when a law is clear in its provisions, its validity cannot be
assailed before the courts for want of conformity to stipulations of a previous treaty
not already executed. Considerations of that character belong to another department
of the government. The duty of the courts is to construe and give effect to the latest
expression of the sovereign will.

In Head Money Cases, 112 U. S. 580, it was objected to an act of Congress that it violated
provisions contained in treaties with foreign nations, but the Court replied that so far as the
provisions of the act were in conflict with any treaty, they must prevail in all the
courts of the country, and after a full and elaborate consideration of the subject it held that
“so far as a treaty made by the United States with any foreign nation can be the
subject of judicial cognizance in the courts of this country, it is subject to such acts
as Congress may pass for its enforcement, modification, or repeal.”

Kuroda v. Jalandoni. 83 SCRA 171 4

This case illustrates the relationship between customary law and treaty law.
On the one hand, if a treaty provides conventional law, only the parties thereto are bound.
On the other hand, if a treaty provides customary law, all states, signatories thereto or not,
are bound.
This decision finds support in the Incorporation Clause in Article II, Section 2 of the Philippine
Constitution. However, this case shows that even without the said clause, general principles of
international law continue to be binding by virtue of our membership in the community of
nations,

Yamashita v. Styer

Petitioner argues that respondent Military Commission has no jurisdiction to try petitioner for acts
committed in violation of the Hague Convention and the Geneva Convention because the
Philippines is not a signatory to the first and signed the second only in 1947. It cannot be
denied that the rules and regulation of the Hague and Geneva conventions form, part
of and are wholly based on the generally accepted principals of international law. In
facts these rules and principles were accepted by the two belligerent nations the United State
and Japan who were signatories to the two Convention. Such rule and principles therefore
form part of the law of our nation even if the Philippines was not a signatory to the
conventions embodying them for our Constitution has been deliberately general and
extensive in its scope and is not confined to the recognition of rule and principle of
international law as contained in treaties to which our government may have been or
shall be a signatory.

**Military & Paramilitary Activities in and against Nicaragua (Nicaragua v.

US), ICJ Reports, 1986

Nicaragua (P) brought a suit against the United States (D) on the ground that the United
States (D) was responsible for illegal military and paramilitary activities in and
against Nicaragua. The jurisdiction of the International Court of Justice to entertain
the case as well as the admissibility of Nicaragua’s (P) application to the I.C.J. was
challenged by the United States (D).

1. The Court held that the United States violated its customary international law
obligation not to use force against another State when its activities with the contras
resulted in the threat or use of force.

The Court held that:

The prohibition on the use of force is found both in Article 2(4) of the Charter of the
United Nations (UN Charter) and in customary international law.

In a controversial finding the Court sub-classified the use of force as:

(1) “most grave forms of the use of force” (i.e. those that constitute an armed attack);
and

(2) “other less grave forms” of the use of force (i.e. organizing, instigating, assisting,
or participating in acts of civil strife and terrorist acts in another State – when the
acts referred to involve a threat or use of force, but not amounting to an armed attack).
(Para 191),

The United States violated the customary international law prohibition on the use
of force when it laid mines in Nicaraguan ports. It also violated this prohibition
when it attacked Nicaraguan ports, oil installations, and a naval base (see below).
The United States could only justify its action on the basis of collective self-defense, if
certain criteria were met (these criteria are discussed below).

The United States violated the customary international law prohibition on the use of force
when it assisted the contras by “organizing or encouraging the organization of
irregular forces and armed bands… for incursion into the territory of another state”
and participated “in acts of civil strife…in another State” and when these acts
involved the threat or use of force.

The supply of funds to the contras did not violate the prohibition on the use of
force. On the contrary, Nicaragua had previously argued before the Court that the United
States determined the timing of offensives against Nicaragua when it provided funds to
the contras. The Court held that “…it does not follow that each provision of funds by the
United States was made to set in motion a particular offensive, and that that offensive
was planned by the United States.” The Court held further that the arming and training
of the contras and the supply of funds, in itself, only amounted to acts of
intervention in the internal affairs of Nicaragua and did not violate the prohibition
on the use of force (para 227) (again, this aspect will be discussed in detail below).

2. The Court held that the United States violated its customary international law
obligation not to use force against another State when it directly attacked
Nicaragua in 1983 and 1984 (see paras 187 – 201).

Note: A controversial but interesting aspect of the Court’s judgement was its definition
of an armed attack. The Court held that an armed attack included:

(1) action by regular armed forces across an international border; and

(2) “the sending by or on behalf of a State of armed bands, groups, irregulars or

mercenaries, which carry out acts of (sic) armed force against another State of such
gravity as to amount to (inter alia) an actual armed attack conducted by regular
forces, or its (the State’s) substantial involvement therein”.
Note also that that he second point somewhat resembles Article 3(g) of the UNGA
Resolution 3314 (XXIX) on the Definition of Aggression.

The Court further held that:

Mere frontier incidents will not have considered as armed attacks, unless, because
of its scale and effects, it would have been classified as an armed attack had it been
carried out by regular forces.

Assistance to rebels by providing weapons or logistical support did not constitute

an armed attack. Instead, it can be regarded as a threat or use of force or an
intervention in the internal or external affairs of other States (see paras 195, 230).

Under Article 51 of the UN Charter and under CIL – self-defence is only available
against a use of force that amounts to an armed attack (para 211).

North Sea Continental Shelf Case, ICJ Reports, 1969

The case involved the delimitation of the continental shelf areas in the North Sea between
Germany and Denmark and Germany and Netherlands beyond the partial boundaries previously
agreed upon by these States. The parties requested the Court to decide the principles and rules
of international law that are applicable to the above delimitation because the parties disagreed
on the applicable principles or rules of delimitation.
The jurisprudence of the North Sea Continental Shelf Cases sets out the dual requirement for
the formation of customary international law: (1) State practice (the objective element)
and (2) opinio juris (the subjective element). In these cases, the Court explained the criteria
necessary to establish State practice – widespread and representative participation. It
highlighted that the practices of those States whose interests were specially affected by the
custom were especially relevant in the formation of customary law. It also held that uniform
and consistent practice was necessary to demonstrate opinio juris – opinio juris is the belief
that State practice amounts to a legal obligation. The North Sea Continental Self Cases also
dispelled the myth that duration of the practice (i.e., the number of years) was an
essential factor in forming customary international law.
The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came into force
in 1980, discusses in more detail treaty obligations of third States (those States who are
not parties to the treaty). It clearly stipulates that obligations arise for third States from a
provision of a treaty only if (1) the actual parties to the treaty intended the provision
to create obligations for third States; and (2) third State expressly accept
those obligations in writing (Article 35 of the VCLT). The VCLT was not in force
when the Court deliberated on this case. However, as seen above, the
Court’s position is consistent the VCLT.
For a customary rule to emerge the Court held that it needed: (1) very widespread and
representative participation in the Convention, including States whose interests were
specially affected (in this case, they were coastal States) (i.e. generality); and (2) virtually
uniform practice (i.e. consistent and uniform usage) undertaken in a manner that demonstrates
(3) a general recognition of the rule of law or legal obligation (i.e. opinio juries). In the
North Sea Continental Shelf cases the court held that the passage of a considerable
period of time was unnecessary (i.e. duration) for the formation of a customary law.

Ang Ladlad
The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:

Article 26

All persons are equal before the law and are entitled without any discrimination to the
equal protection of the law. In this respect, the law shall prohibit any discrimination and
guarantee to all persons equal and effective protection against discrimination on any
ground such as race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.

In this context, the principle of non-discrimination requires that laws of general

application relating to elections be applied equally to all persons, regardless of sexual
orientation. Although sexual orientation is not specifically enumerated as a status or ratio for
discrimination in Article 26 of the ICCPR, the ICCPR Human Rights Committee has opined that
the reference to sex in Article 26 should be construed to include sexual
orientation.[48] Additionally, a variety of United Nations bodies have declared discrimination on
the basis of sexual orientation to be prohibited under various international agreements.
Bayan v. Zamora
The constitutional provision which governs the VFA is Section 25, Article XVIII of the 1987
Constitution: “After the expiration in 1991 of the Agreement between the Republic of the
Philippines and the United States concerning Military Bases, foreign military bases, troops,
or facilities shall not be allowed in the Philippines except 1) under a treaty 2) duly
concurred in by the Senate and, when the Congress so requires, ratified by a majority of
the votes cast by the people in a national referendum held for that purpose, and 3)
recognized as a treaty by the other Contracting State.”
Even if the US merely treats the VFA as an executive agreement it is still binding because under
international law, an executive agreement is as binding as a treaty. In international law,
there is no difference between treaties and executive agreements in their binding
effect upon states so long as negotiating functionaries have remained within their
powers.

Wright v. CA

The principles of international law recognize no right of extradition apart from that arising from
treaty. 4 Pursuant to these principles, States enter into treaties of extradition principally for
the purpose of bringing fugitives of justice within the ambit of their laws, under
conventions recognizing the right of nations to mutually agree to surrender individuals
within their jurisdiction and control, and for the purpose of enforcing their respective
municipal laws. Since punishment of fugitive criminals is dependent mainly on the
willingness of host State to apprehend them and revert them to the State where their
offenses were committed, 5 jurisdiction over such fugitives and subsequent enforcement of penal
laws can be effectively accomplished only by agreement between States through treaties
of extradition.

Secretary of Justice v. Koruga

Article VIII, Section 1[25] of the Constitution has vested power of judicial review in the Supreme
Court and the lower courts such as the CA, as established by law. the Court may look into and
resolve questions of whether or not such judgment has been made with grave abuse of
discretion, when the act of the legislative or executive department is contrary to the
Constitution, the law or jurisprudence, or when executed whimsically, capriciously or
arbitrarily out of malice, ill will or personal bias.
The settled rule is that the entry or stay of aliens in the Philippines is merely a privilege
and a matter of grace; such privilege is not absolute or permanent and may be
revoked. However, aliens may be expelled or deported from the Philippines only on grounds and
in the manner provided for by the Constitution, the Philippine Immigration Act of 1940, as
amended, and administrative issuances pursuant thereto.
Island of Las Palmas Case (US v. Netherlands), 2 RIAA 829
Contiguity
The United States also argued that Palmas was United States territory because the island
was closer to the Philippines than to Indonesia which was then held by the Netherlands
East Indies. The arbitrator said there was no positive international law which
favored the United States' approach of terra firma, where the nearest continent or
island of considerable size gives title to the land in dispute. The arbitrator held that
mere proximity was not an adequate claim to land noted that if the international
community followed the proposed United States approach, it would lead to
arbitrary results.
Under the Palmas decision, three important rules for resolving island territorial
disputes were decided:
• Firstly, title based on contiguity has no standing in international law.
• Secondly, title by discovery is only an inchoate title.
• Finally, if another sovereign begins to exercise continuous and actual
sovereignty, (and the arbitrator required that the claim had to be open and
public and with good title), and the discoverer does not contest this claim,
the claim by the sovereign that exercises authority is greater than a title
based on mere discovery.

As the Las Palmas case, infra, shows, control over territory is of the essence of a
state. The exact boundaries might be uncertain, but there should be a definitive core
over which sovereignty is exercised. Acquisition of territory more precisely means
acquisition of sovereignty over territory. Judge Huber in the Las Palmas case said
that “sovereignty over a portion of the surface of the globe is the legal condition
for the inclusion of such portion in the territory of any particular state.”
Eastern Greenland Case
Where there are two or more claimants to a territory, effective control is also
relative to the strength of claims. (Eastern Greenland Case PCIJ 1933) The
Permanent Court of Justice deciding in favor of Denmark, said:
Before proceeding to consider in detail the evidence submitted to the Court, it may be
well to state that a claim to sovereignty based not upon some particular act or title such
as a treaty of cession but merely upon continued display of authority, involves two
elements each of which must be shown to exist: the intention and will to act
as sovereign, and some actual exercise or display of such authority.
Another circumstance which must be taken into account by any tribunal which has to
adjudicate upon a claim to sovereignty over a particular territory, is the extent to which
the sovereignty is also claimed by some other Power. In most of the cases
involving claims to territorial sovereignty which have come before an international
tribunal, there have been two competing claims to the sovereignty, and the tribunal has
had to decide which of the two is the stronger.

SS Lotus Case, PCIJ Ser. A, No. 10

Does a rule of international law which prohibits a state from exercising criminal jurisdiction
over a foreign national who commits acts outside of the state’s national jurisdiction exist?
Ruling: No. A rule of international law, which prohibits a state from exercising criminal
jurisdiction over a foreign national who commits acts outside of the state’s national
jurisdiction, does not exist.
This stems from the fact that the effects of the alleged offense occurred on a Turkish
vessel.
Hence, both states here may exercise concurrent jurisdiction over this matter because
there is no rule of international law in regards to collision cases to the effect that
criminal proceedings are exclusively within the jurisdiction of the state whose flag
is flown.
There is also no general prohibition on a state to extend the application of their law
outside of their territory. The territoriality of criminal law is not an absolute
principle of international law—In penal matters, in particular as regards manslaughter,
international law does not provide that for the purpose of localizing the wrongful act any
single theory must be adopted in preference to all others—The principle of the freedom
of the seas allows a State, in so far as penal jurisdiction is concerned, to assimilate
the ship flying its flag to its own territory without, however, as regards collisions,
any more extended rights arising therefrom which would create an exclusive
jurisdiction in favour of such State— The inseparability of the elements
constituting an offence giving rise to concurrent jurisdictions
Even states which strictly apply the territoriality of criminal laws concede that if
one of the elements of an offense (most especially its effects) has taken place in
their national territory, the crime is to be regarded as having been committed there
despite the fact that the author of the crime was in the territory of another state at
the time of the commission of the act. The court also rejected the exclusive jurisdiction
of the flag state in this case because such principle is not universally accepted leaving
the states a free hand.
Minquiers & Ecrehos Case
The Court attached probative value to various acts relating to the exercise by Jersey of
jurisdiction and local administration and to legislation, such as criminal proceedings
concerning the Ecrehos, the levying of taxes on habitable houses or huts built in the islets
since 1889, the registration in Jersey of contracts dealing with real estate on the Ecrehos.
The French Government invoked the fact that in 1646 the States of Jersey prohibited
fishing and restricted visits at the Ecrehos. Appraising the relative strength of the
opposing claims in the light of these facts, the Court found that sovereignty over the
Ecrehos belonged to the United Kingdom.
With regard to the Minquiers, the nineteenth and the twentieth centuries concerned
inquests on corpse!; found at the Minquiers, the erection on the islets of habitatble houses
or huts by persons from Jersey who paid property taxes on that account, the registration
in Jersey of contracts of sale relating to real property in the Minquiers. These various facts
show that Jersey authorities have, in several ways, exercised ordinary local
administration in respect of the Minquiers during a long period of time and that, for a
considerable part of the nineteenth century and the twentieth century, British authorities
have exercised State functions in respect of this group.
Eritrea-Yemen Arbitration, ICJ Reports, 1998
The 1999 Eritrea/Yemen Maritime Delimitation Award (Phase II) is a landmark decision
substantiating the mutually reinforcing relationship between the jurisprudence of the ICJ and that
of arbitral tribunals concerning application and development of the modern law of equitable
maritime boundary delimitation, rightly characterised by President Stephen M. Schwebel as being
"more plastic than formed". The Award marks a notable progress in the accommodation of the
operation of equity infra legem with by now crystallized principles and rules of the law of the sea,
as codified and progressively developed in the 1982 UN Law of the Sea Convention. It confirms
prominence of a single all-purpose maritime boundary and the governing role of equidistance
(median line) as the equitable boundary between the opposite states.

Preah Vihear Temple Case (1962)

Although Thailand did not expressly recognize the validity of the maps, the Court
concluded that the circumstances were such as to impose on Thailand a duty to inspect
the maps, and a failure to protest was to be taken as a tacit adoption. This conclusion
was based on the concept of "acquiescence" which protects a country having taken
a position adverse to the interest of another, where the other fails to protest within
a reasonable time. The theory is that the first country may have relied on its own position
and the other country ought to be estopped to contest the result at a later time. This is
said to be "an essential requirement of stability" in the international sphere.
Acquiescence may have relevance either with respect to changes in the status of
international rights and customs, or with respect to modification of treaties, as in
the instant case. However, for the acquiescence to be effective, it must be under
circumstances from which consent on the part of the adversely affected nation
could reasonably be inferred. Thailand's duty to inspect the maps also prevented it from
claiming that any adoption at the time of publication was vitiated by the undetected error.
A plea of error will not be allowed in international law where the parties could have
avoided it, and here the circumstances were such as to put Thailand on notice of possible
error.

Frontier Dispute Case

principle of uti possidetis juris, which accords pre-eminence to legal title over effective
possession as a basis of sovereignty, and whose primary aim is to secure respect for the
territorial boundaries which existed at the time when independence was achieved.
El Salvador v. Honduras
The principle of uti possidetis is concerned as much with title to territory as with the
location of boundaries" (that is, the principle can be applied to general territorial
questions, not simply those of boundaries per se)
certainly, a key aspect of the principle is the denial of the possibility of terra nullius"
(that is, once a colony becomes an independent state, the new state's territory cannot
be acquired by another state through occupation of "no-man's land")

Credit Suisse v. District Court of California- case that Act of State applies

The Swiss Federal Council issued an Executive Order freezing all assets of the Marcos
family that were held in Switzerland. Loretta Ann Rosales filed an action seeking relief
from district courts of Switzerland for an injunction restraining the Banks from transferring
or otherwise conveying any funds or assets held by the Banks on behalf of the Marcos
Estate. The arising issue in the case is that whether the relief sought would
violate the act of state doctrine. That relief sought actually violates the act of state
doctrine. District court compelling the Banks to transfer or otherwise convey Estate assets
would be in direct contravention of the Swiss freeze orders.
- States that a foreign court chooses to uphold and respect the foreign
state acts done within its territory so it will not imperil the amicable
relationship between nations
- Apply to judicial decisions, legislative and executive actions
No (Israel v. Bulgaria). The Court ruled that it did not have jurisdiction on
the grounds that Bulgaria’s acceptance of the optional clause in the Statute
of the Permanent Court of International Justice (the PCU, precursor to the
ICJ) did not carry over to acceptance of the optional clause for the ICJ when
Bulgaria joined the UN in December 1955, since Bulgaria had not been an
original party to the UN Charter and the Statute of the ICJ.
The US withdrew its application.

Reciprocity- “Reciprocity in the case of Declarations accepting the compulsory

jurisdiction of the Court enables a Party to invoke a reservation to that
acceptance which it has not expressed in its own Declaration but which the
other Party has expressed in its Declaration.”

El Honduras

The Court relied on the uti possidetis juris principle, according to which the
national boundaries of former colonies correspond to the earlier
administrative borders of the colonies. The Court underlined that it was the
application of this principle which provided States liberated from former colonial empires
with internationally recognized borders. The different titles invoked by the parties to the
case were of different legal value; thus, the Court decided to recognize only the title
deeds granted by the Spanish crown as valid proof of title as well as
topographical characteristics in order to define a clearly recognizable
borderline.

Relevant cases:
Edye v. Robertson
Kuroda v. Jalandoni
Yamashita v. Styer
North Sea Continental Shelf Case
Nicaragua v. US
Portugal v. India
Las Palmas
Eastern Greenland case
SS Lotus Case
Eritrea Yemen Arbitration
Libya v. Chad
Anglo Norweigian Fisheries Case
Philippines v. China
El Salvador v. Honduras
Province of North Cotabato