CHAPTER 5 SUBJECTS OF INTERNATIONAL LAW
STATES economic, social and cultural development
Subjects of International Law—entities endowed with rights and obligations in
the international order and possessing the capacity to take certain kinds of
action on the international plane
 Those with international personality
Objects of International Law—those who indirectly have rights under or are
beneficiaries of international law through subjects of international law
States—predominant actors; a community of persons more or less numerous,
permanently occupying a definite portion of territory, independent of external
control, and possession an organized government to which the great body of
inhabitants render habitual obedience
Commencement of their Existence
 State, as a person of international law, should possess the following
qualifications: (Montevideo Convention of 1933 on Rights and Duties of
States)
1. Permanent population—PEOPLEa community of persons
sufficient in number and capable of maintain the permanent
existence of the community and held together by a common bond
of law
2. Defined territory—an entity may satisfy this requirement even if
its boundaries have not been finally settled, if one or more of its
boundaries are disputed, or if some of its territory is claimed by
another state
 An entity does not necessarily cease to be a state even if all its
territory has been occupied by a foreign power or if it has
otherwise lost control of its territory temporarily
3. Government—that institution or aggregate of institutions by which
an independent society makes and carries out those rules of action
which are necessary to enable men to live in a social state
 It is the National Government that has legal personality and it is
such that is internationally responsible for the actions of other
agencies and instrumentalities of the state
 Temporary absence of government does not terminate the
existence of a state
4. Capacity to enter into relations with other States—
SOVEREIGNTYindependence from outside control
 Principle of Self-determination—sovereignty as an element of a state
is related but not identical to this principleby virtue of this, people
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freely determine their political status and freely pursue their
Levels of claim to Self-determination
1. Establishment of New State—the claim by a group within an
established state to break away and form an new entity
2. Does not involve Establishment of New State—simply involves claims
a. To be free from external coercion
b. To overthrow effective rulers and establish a new government—the
assertion of the right of revolution
c. Of people within an entity to be given autonomy
 International law has not recognized a right of secession from a
legitimately existing state
Recognition of States—the act of acknowledging the capacity of an entity to
exercise rights belonging to statehood
Can an entity claim to be a state before it is recognized by other states?
Declaratory Theory Constitutive Theory
Recognition is merely “declaratory” of Recognition “constitutes” a state
the existence of the state
Its being a state depends upon its It is what makes a state a state and
possession of the required elements confers legal personality on the entity
and not upon recognition
States may decide to recognize an
entity as a state even if it does not
have all the elements of a state
Recognition of Government—act of acknowledging the capacity of an entity to
exercise powers of government of a state
 If a change in government in an existing state comes about through
ordinary constitutional procedure = recognition by others comes as a
matter of course
THE TINOCO ARBITRATION
FACTS:
Government of Costa Rica was overthrown by Tenneco. The latter’s
government entered into contracts with British corporations. When Tenneco
retired and left the country, the old constitution was restored and a Law of
Nullities was passed annulling contracts concluded during the Tenneco regime.
Great Britain made claims on the basis of the injuries done to its nationals
caused by the annulments.
ISSUE:
What is the status of the Tinoco regime in international law?
HELD:
The non-recognition by other nations of a government claiming to be a national
personality, is usually appropriate evidence that it has not attained the
independence and control entitling it by international law to be classed as such
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 The rule that a revolution contrary to the fundamental law of the existing
government cannot establish a new government is not true in international law.
Non-recognition may have aided the succeeding government to come into
power; but subsequent presentation of claims based on the de facto existence
of the previous government does not work an injury to the succeeding
government in the nature of a fraud or breach of good faith.
UPRIGHT v. MERCURY BUSINESS MACHINES CO.
FACTS:
Plaintiff, and individual, sues as the assignee of a trade acceptance drawn on
and accepted by defendant in payment for business typewriters sold and
delivered to it by a foreign corporation. It alleges that the foreign corporation
is the creature of the East German Government, a government not recognized
by US.
HELD:
A foreign government, although not recognized by the political arm of US
Government, may nevertheless have de facto existence which is juridically
cognizable.
In traditional law, the acts of such government may affect private rights and
obligations arising either as a result of activity in, or with persons or
corporations within, the territory controlled by such de facto government.
Consequence of Recognition or Non-Recognition
 A government, once recognized, gains increased prestige and stability
a. Doors of funding agencies are opened
b. Loans are facilitated
c. Access to foreign courts and immunity from suit are gained
d. Military and financial assistance also come within reach
 Absence of formal recognition bars an entity from all these benefits
or, at least, access to them may be suspended
 Admission of a government to the UN does not mean recognition by all
members but only to the extent of the activities of the organization
 Recognition of a regime is terminated when another regime is
recognized
Succession of States
 Views on Succession
A. The new state succeeds to no rights or obligations of the
predecessor state but begins with a tabula rasa
B. Successor state assumes all obligations and enjoys all the rights of
the predecessor
Issues on Succession of States
1. Succession to territory—when a state succeeds another state with
particular territory, the capacities, rights and duties of the
predecessor state with respect to that territory terminate and are
assumed by the successor state
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2. Succession to state property—this is subject to agreement between
predecessor and successor states
3. Succession to contracts—this is subject to agreement between the
states concerned
o Responsibility for the public debt of the predecessor, and rights and
obligations under its contracts remain with the predecessor state but
is subject to certain exceptions
4. Succession to treaties
a. Moving Treaty Rule / Moving Boundaries Rule—when part of the
territory of a state becomes territory of another state, the
international agreements of the predecessor state cease to have
effect in respect of the territory
o Relief from treaty obligation is rebus sic stantibus
b. When a state is absorbed by another state, international agreements
of the absorbed states are terminated
c. Clean Slate Theory—when part of a state becomes a new state, the
new state does not succeed to the international agreements to which
the predecessor state was a party unless, expressly or impliedly, it
accepts such agreements
d. Uti possidetis Rule—pre-existing boundary and other territorial
agreements continue to be binding notwithstanding
Fundamental Rights of States
1. Independence—capacity of a state to provide for its own well-being
and development free from the domination of other states
o Right to exercise within its portion of the globe, to the exclusion of
others, the functions of a state
o Restrictions upon a state’s liberty either from customary law or from
treaties do not deprive a state of independence
o There is duty not to interfere in the internal affairs of other states
o Rights flowing from independence:
a. Jurisdiction over its territory and permanent population
b. Right to self-defense
c. Right of legation
2. Equality—equality of legal rights irrespective of size or power of the
state
o Within the General Assembly, the doctrine means one state, one
vote
3. Peaceful Co-Existence—mutual respect for each other’s territorial
integrity and sovereignty, mutual non-aggression, non-interference in
each other’s affairs and the principle of equality
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Some Incomplete Subjects CHAPTER 6 OTHER SUBJECTS OF INTERNATIONAL LAW
1. Protectorates—dependent states which have control over their
internal affairs but whose external affairs are controlled by another INTERNATIONAL ORGANIZATIONS
state; referred to as  An organization that is set up by treaty among 2 or more states which
a. Autonomous states have international personality
b. Vassal states  Constituent instruments of international organizations are multilateral
c. Semi-sovereign treaties, to which the well-established rules of treaty interpretation
d. Dependent sates apply
 Non-governmental organizations (NGO)—set up by private persons
2. Federal state—a union of previously autonomous entities  Although international organizations have personality in international
o The central organ will have personality in international law but the law, their powers and privileges are by no means like those of states
extent of international personality of the component entities can be since it is limited by the constitutional instrument that created them
a problem
Advisory Opinion on the Use of Nuclear Weapons
3. Mandated and Trust Territories—territories placed by the League of International organizations—governed by the Principle of Specialtythey are
nations under one or other of the victorious allies of WWI invested by the States which create them with powers, the limits of which are
o After WWII, this was replaced by trusteeship system a function of the common interests whose promotion those States entrust to
them.
4. Taiwan—a non-state territory which de jure is part of China Powers conferred on international organizations—normally the subject of an
express statement in their constituent instruments but in order to achieve their
5. The Sovereign Order of Malta—the Italian Court of Cassation in 1935 objectives, they possess subsidiary powers which are not expressly provided
for in the basic instruments which govern their activities.
recognized its international personality

6. The Holy See and Vatican City—recognized under Lateran Treaty; it

Immunities—based on the need for the effective exercise of their functions and
has no permanent population
not from sovereignty
 These immunities come from the conventional instrument creating
them

KAPISANAN NG MGA MANGGAGAWA v. IRRI

HELD:
IRRI was organized and registered with SEC as a private corporation subject to
all laws and regulations. However, by virtue of PD 1620, it was granted the
status, prerogatives, privileges and immunities of an international organization.

SC has consistently recognized the immunity granted to IRRI declaring it to be

on the same footing as the International Catholic Migration Commission.

The objective of the grant of immunity is to avoid the danger of partiality and
interference by the host country in their internal workings. The end result of
the protective blanket that has been wrapped around IRRI is the efforts of
employees to seek redress for violations of labor rights have been repeatedly
rebuffed by SC. For all practical purposes, they are denied the full protection
for labor guaranteed in the Constitution.

DFA v. NLRB
ISSUE:
w/n NLRC could assume jurisdiction over a case of illegal dismissal against ADB

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 HELD: o There are 15 member states, 5 permanent and the others are
ADB enjoys immunity from every form of legal process, except in cases arising elected for 2 year terms in accordance with equitable
out of or in connection with the exercise of its powers to borrow money, to geographic representation
guarantee obligations, or to buy and sell or underwrite the sale of securities. o Distinguishes between
a. Procedural matters
WHO v. AQUINO b. All other matters—requires 9 affirmative votes, including
HELD: the concurring votes of the permanent members
Diplomatic immunity is essentially a political question and courts should refuse o The Charter does not specify what matters are procedural,
to look beyond a determination by the executive branch of the government,
hence, decision on whether a matter is procedural or not
and where the plea of diplomatic immunity is recognized and affirmed by the
requires the concurrence of the permanent members
executive branch of the government, it is then the duty of the courts to accept
the claim of immunity upon appropriate suggestion by the principal law officer o Abstention = veto
of the government or other officer acting under this discretion.
3. Economic and Social Council (ECOSOC)—has 54 members elected
JEFFREY LIANG v. PEOPLE for 3 year terms
FACTS:
This involved a criminal complaint against Liang, an ADB official, for grave oral 4. Trusteeship Council—supervises non-self governing territories
defamation. Appeal was made to the political character of Liang as an agent of o The Council suspended operations after Palau became
international organization. independent on Oct. 1, 1994

HELD: 5. International Court of Justice (ICJ)—principal judicial organ of

Immunity granted to officers and staff of ADB was not absolute; but limited to
acts performed in an official capacity.
The United Nations: Structure and Powers
 Came into being on Oct. 24, 1945
 A universal organization charged with peacekeeping responsibilities,
development of friendly relations among nations, achievement of
international cooperation in solving international problems of an
economic, social, cultural and humanitarian character, and the
promotion of human rights and fundamental freedoms for all human
beings without discrimination
 UN is enjoined against intervening in matters which are essentially
within the domestic jurisdiction of any state
 International Constitutional Supremacy Clause—in the hierarchy of
international organizations, the UN occupies a position of preeminence
so if there is a conflict with other international agreement, obligations
under the UN Charter shall prevail
 Principal organs of UN:
1. General Assembly—it has plenary power in the sense that it may
discuss any question or any matters within the scope of the
Charter
o GA distinguishes between
a. Important questions—decided by 2/3 majority of the
members voting and present
b. Other questions—decided by the majority
2. Security Council—has primary responsibility for the maintenance
of international peace and security
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the UN
6. Secretariat—comprises a Secretary General and such staff as the
Organization may require
o Secretary General—elected to a 5 year term by General
Assembly upon the recommendation of the Security Council,
subject to veto power
 Other Agencies:
1. United Nations Educational, Scientific and Cultural Organizations
(UNESCO)
2. International Civil Aviation Organization (ICAO)
3. World Health Organization (WHO)
4. Food and Agricultural Organization (FAO)
5. World Bank
6. International Monetary Fund (IMF)
Regional Organizations—they are neither organs nor subsidiary organs of UN
 They are autonomous international organizations having an
institutional affiliation with UN by concluding agreements with UN
 Created by international agreements for the purpose of dealing with
regional problems in general or with specific matters be they
economic, military or political
ASEAN—established on Aug. 8, 1967 in Bangkok, Thailand with the signing of
the Bangkok Declaration by the 5 original member countries: Indonesia,
Malaysia, Philippines, Singapore and Thailand
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  Brunei Darrusalam joined on Jan. 8, 1994; Vietnam on July 28, 1995; INDIVIDUALS
Laos and Myanmar on July 23, 1997; Cambodia in 1999.  Possess limited rights and obligations (deriving from customary
 3 main objectives: international law) in international law
a. Promote economic, social and cultural development of the region  Obligations of individuals are those arising from the regulation of
through cooperative programs armed conflicts
b. Safeguard the political and economic stability of the region against  When individual rights are violated, however, individuals still have to
big power rivalry rely on the enforcement power of states; but some treaties have
c. Serve as a forum for the resolution of intra-regional differences provided for the right of individuals to petition international bodies
alleging that a contracting state has violated some of their human
INSURGENTS rights
 Protocol II—first and only international agreement exclusively
regulating the conduct of parties in a non-international armed conflict
 Requirements for Material Field of Application:
a. Armed dissidents must be under responsible command
b. They must exercise such control over a part of its territory as to
enable them to carry out sustained and converted military
operations and to implement this Protocol
 Insurgent groups which satisfy the material field of application may be
regarded as “para-statal entities possessing definite if limited form of
international personality”
a. They are recognized as having belligerent status against the de
jure government
b. They are seen as having treaty making capacity
 Common Article 3—for armed conflict not of an international
character
 Prohibited acts under Article 3:
a. Violence to life and person, in particular, murder of all kinds,
mutilation, cruel treatment and torture
b. Taking of hostages
c. Outrages upon personal dignity, in particular, humiliating and
degrading treatment
d. Passing of sentences and the carrying out of executions without
previous judgment pronounced

NATIONAL LIBERATION MOVEMENTS

 Organized groups fighting in behalf of a whole people for freedom from
colonial powers
 Characteristics:
a. They can be based within the territory which they are seeking to
liberate or they might find a base in a friendly country
b. Their goal is self-determination—to free themselves from colonial
domination, or a racist regime or foreign occupation
c. There is the ultimate goal of controlling a definite territory
d. They must have an organization capable of coming into contract
with other international organizations

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 CHAPTER 7 TERRITORY: LAND, AIR, OUTER SPACE
Territory in International Law—an area over which a state has effective
control
 Exact boundaries might be uncertain but there should be a definitive
core over which sovereignty is exercised
 Acquisition of territory—acquisition of sovereignty over territory
 Includes land, maritime areas, airspace and outer space
Modes of Acquisition of Sovereignty over Territory
1. Discovery and Occupation
o Occupation—acquisition of terra nulliusterritory which prior to
occupation belonged to no state or which may have been abandoned
by a prior occupant
o There is abandonment when occupant leave the territory with the
intention of not returning
o Discovery of terra nullius is not enough to establish sovereignty; it
must be accompanied by effective control
WESTERN SAHARA CASE
HELD:
Territories inhabited by tribes or peoples having a social and political
organization were not regarded as terra nullius.
The information furnished to the Court shows that at the time of
colonization, Western Sahara was inhabited by peoples which, if nomadic,
were socially and politically organized into tribes and under chiefs
competent to represent them.
THE ISLAND OF PALMAS
FACTS:
Palmas (Miangas) is an island of little economic value or strategic location.
The island is located between Mindanao, Philippines and the northern most
island, known as Nanusa, of what was the former Netherlands East Indies. In
1898, Spain ceded the Philippines to the United States in the Treaty of Paris
(1898) and Palmas sat within the boundaries of that cession to the U.S. In
1906, US discovered that the Netherlands also claimed sovereignty over the
island, and the two parties agreed to submit to binding arbitration by the
Permanent Court of Arbitration.
ISSUE:
w/n the Island of Palmas (Miangas), in its entirety, was a part of the territory
of the United States or the Netherlands
HELD:
The Arbitrator, Swiss lawyer Max Huber, ruled in favor of the Netherlands’
position and stated that the Netherlands held actual title to Palmas. For
these reasons, the Arbitrator decides that “the Island of Palmas forms, in its
entirety, a part of the Netherlands territory.”
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Right by discovery—US argued that it held the island because it had received
actual title through legitimate treaties from the original "discoverer" of the
island, Spain. US argued that Spain acquired title to Palmas when Spain
discovered the island and the island was terra nullius. Spain's title to the
island, because it was a part of the Philippines, was then ceded to US in the
Treaty of Paris after Spain's defeat in the Spanish-American War. The
arbitrator noted that no new international law invalidated the legal transfer
of territory via cession.
However, the arbitrator noted that Spain could not legally grant what it did
not hold and the Treaty of Paris could not grant to US Palmas if Spain had no
actual title to it. The arbitrator concluded that Spain held an inchoate title
when Spain “discovered” Palmas. However, for a sovereign to maintain its
initial title via discovery, the arbitrator said that the discoverer had to
actually exercise authority, even if it were as simple an act as planting a flag
on the beach. In this case, Spain did not exercise authority over the island
after making an initial claim after discovery and so the United States’ claim
was based on relatively weak grounds.
Contiguity—US also argued that Palmas was US’ 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 US’ 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.
Continuous and peaceful display of sovereignty—the Netherlands' primary
contention was that it held actual title because the Netherlands had
exercised authority on the island since 1677. The arbitrator noted that the
US had failed to show documentation proving Spanish sovereignty on the
island except those documents that specifically mentioned the island's
discovery. Additionally, there was no evidence that Palmas was a part of the
judicial or administrative organization of the Spanish government of the
Philippines. However, the Netherlands showed that the Dutch East India
Company had negotiated treaties with the local princes of the island since
the 17th century and had exercised sovereignty, including a requirement of
Protestantism and the denial of other nationals on the island. The arbitrator
pointed out that if Spain had actually exercised authority, than there would
have been conflicts between the two countries but none are provided in the
evidence.
In resolving island territorial disputes, the following 3 important rules must
be followed:
1. Title based on contiguity has no standing in international law
2. Title by discovery is only an inchoate title
3. If another sovereign begins to exercise continuous and actual sovereignty
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
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 EASTERN GREENLAND CASE
HELD:
A claim to sovereignty based not upon some particular act or title such as
treaty or cession but merely upon continued display of authority, involves 2
elements each of which must be shown to exist: (a) intention and will to act
as sovereign, and (b) some actual exercise or display of such authority.
Another circumstance which must be taken into account is the extent to
which the sovereignty is also claimed by some other Power.
One of the peculiar features of the present case is that up to 1931, there was
no claim by any Power other than Denmark to the sovereignty of Greenland.
2. Prescription—requires effective control and the object is not terra
nullius
o The required length of effective control is longer than in occupation
o May be negated by a demonstrated lack of acquiescence by the prior
occupant
3. Cession—acquisition of territory through treaty
o A treaty of cession which is imposed by a conqueror is invalid
4. Conquest and Subjugation
o Conquest—taking possession of a territory through armed force
o It is necessary that the war had ended either by treaty or by
indication that all resistance had been abandoned
o Now, conquest is proscribed by international law
o “No territorial acquisition resulting from the use or threat of force
shall be recognized as legal”
AIRSPACE
 Each state has exclusive jurisdiction over the air space above its
territory
 Sovereignty over airspace extends only until where outer space begins
 Consent for transit must be obtained from the subjacent nation
 State Aircraft—aircraft used in military, customs and police services
 “No state aircraft of a contracting State shall fly over the territory of
another State or land thereon without authorization by special
agreement or otherwise, and in accordance with the terms thereof.”
(Art. 3[a] of Chicago Convention on International Civil Aviation)
 Aircraft must not only not be attacked unless there is reason to suspect
that the aircraft is a real threat but also that a warning to land or
change course must be given before it is attacked (Lissitzyn)
 Civilian aircraft should never be attacked
OUTERSPACE
 Outer space, wherever that might be, and celestial bodies, are not
susceptible to appropriation by any state
 “The Moon and other celestial bodies shall be used by all State Parties
to the Treaty exclusively for peaceful purposes.” (1967 Treaty on the
Exploration and Use of Outer Space)

5. Accretion and Avulsion—sovereignty by operation of nature

o Accretion—gradual increase of territory by the action of nature
o Avulsion—sudden change resulting for instance from the action of a
volcano

Is Contiguity a Mode of Acquisition?

 It is impossible to show a rule of positive international law to the
effect that islands situated outside the territorial waters should belong
to a state from the fact that its territory forms part of the terra firma
(Las Palmas Case)

Intertemporal Law
 Rules in effect at the time of the acquisition should be applied

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