U.P.

LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW

PUBLIC INTERNATIONAL
LAW
POLITICAL LAW

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E. ORGANIZATION AND REGULATION OF
CORPORATIONS, PRIVATE AND PUBLIC........... 111
F. MONOPOLIES, RESTRAINT OF TRADE AND UNFAIR
COMPETITION .............................................. 111
SOCIAL JUSTICE AND HUMAN RIGHTS ........... 112
A. CONCEPT OF SOCIAL JUSTICE ...................... 112
B. ECONOMIC, SOCIAL, AND CULTURAL RIGHTS .... 112
C. COMMISSION ON HUMAN RIGHTS ................... 115
1. Powers .................................................. 115
2. Composition and Qualification of Members
116
CONSTITUTIONAL LAW II ................................... 117
A. CONCEPT OF BILL OF RIGHTS............... 118
1. Privacy and Autonomy .......................... 118
2. Relation to Human Rights ..................... 119
B. DUE PROCESS OF LAW .......................... 119
1. Concept of Right to Life, Liberty and
Property ................................................... 120
2. Kinds of Due Process ........................... 120
C. EQUAL PROTECTION OF LAWS ............ 127
1. Concept ................................................. 127
2. Requisites for Valid Classification ......... 127
3. Levels of Scrutiny .................................. 128
D. RIGHT AGAINST UNREASONABLE
SEARCHES AND SEIZURES........................ 129
1. Concept of Privacy ................................ 130
2. Concept of a Search ............................. 130
3. Requisites of a Valid Warrant ............... 130
4. Warrantless Searches ........................... 133
5. Warrantless Arrests and Detentions ..... 136
6. Exclusionary Rule ................................. 138
7. Effects of Unreasonable Searches and
Seizures .................................................. 138
E. PRIVACY OF COMMUNICATIONS AND
CORRESPONDENCE ....................................... 138
1. Concept of communications,
correspondence ....................................... 139
2. ............... Intrusion, when and how allowed
140
3. Exclusionary Rule ................................. 141
F. FREEDOM OF SPEECH AND EXPRESSION
.................................................................. 142
1. Concept ................................................. 142
2. Types of Regulation .............................. 143
3. Judicial analysis, presumptions and levels
and types of scrutiny ............................... 149
4. Special topics in Free Expression Cases ....
.............................................................. 152
5. Cognate rights ....................................... 155
G. FREEDOM OF RELIGION......................... 161
1. Basic Principles ..................................... 161
2. Principle of Separation of Church and State
.............................................................. 161
3. Non-establishment Clause .................... 162
4. Free Exercise Clause ............................ 164
H. LIBERTY OF ABODE AND FREEDOM OF
MOVEMENT ...................................................... 166
1. Scope and Limitations ........................... 166
2. Watch-list and hold departure orders .... 166
I. EMINENT DOMAIN ................................... 168
POLITICAL LAW
1. Concept ................................................. 168
2. Just Compensation ............................... 170
3. Abandonment of Intended Use and Right of
Repurchase ........................................... 171
4. Expropriation by local government units 171
J. NON-IMPAIRMENT OF CONTRACTS ...... 171
K. ADEQUATE LEGAL ASSISTANCE AND
FREE ACCESS TO COURTS.................... 173
L. RIGHT AGAINST SELF-INCRIMINATION 174
1. Scope and Coverage ............................ 174
2. Application ............................................. 175
3. Immunity Statutes ................................. 175
M. RIGHTS OF PERSONS UNDER CUSTODIAL
INVESTIGATION ................................................. 176
1. Availability ............................................. 177
2. Requisites ............................................. 178
3. Waiver ................................................... 179
N. RIGHTS OF THE ACCUSED................. 180
1. Criminal Due Process ........................... 180
2. Bail ........................................................ 181
3. Presumption of innocence ..................... 183
4. Right to be heard ................................... 184
5. Assistance of Counsel ........................... 184
6. Right to be informed of the nature and
cause of accusation .............................. 185
7. Right to a speedy and impartial trial ...... 185
8. Right of confrontation ............................ 186
9. Compulsory process ............................. 186
10. Trial in absentia ................................. 187
O. RIGHT TO THE SPEEDY DISPOSITION OF
CASES .......................................................... 192
P. RIGHT AGAINST EXCESSIVE FINES AND
CRUEL, DEGRADING, AND INHUMAN
PUNISHMENTS ............................................ 193
Q. NON-IMPRISONMENT FOR DEBTS .... 193
R. RIGHT AGAINST DOUBLE JEOPARDY ... 194
1. Requisites; scope .................................. 194
2. Limitations; Exceptions to the Rule on
Double Jeopardy ..................................... 195
S. RIGHT AGAINST INVOLUNTARY SERVITUDE
196
T. EX POST FACTO LAWS AND BILLS OF
ATTAINDER .................................................. 197
LAW ON PUBLIC OFFICERS ............................... 199
A. GENERAL PRINCIPLES ........................... 200
1. Public Office .......................................... 200
2. Public Officer ......................................... 202
B. MODES OF ACQUIRING TITLE TO PUBLIC OFFICE ...
.................................................................. 204
1. Appointments ........................................ 204
2. Election ................................................. 207
3. Designation ........................................... 207
C. MODES AND KINDS OF APPOINTMENT ............. 208
1. Classification of Appointments .............. 208
D. ELIGIBILITY AND QUALIFICATION REQUIREMENTS ...
.................................................................. 212
E. DISABILITIES AND INHIBITIONS OF PUBLIC
OFFICERS .................................................... 218
F. POWERS AND DUTIES OF PUBLIC OFFICERS.... 224
G. RIGHTS OF PUBLIC OFFICERS ......................... 227
1. Rights incident to public office ............... 227
2. Rights as a Citizen ................................ 227
U.P. LAW BOC
3. Other Rights .......................................... 229
H. LIABILITIES OF PUBLIC OFFICERS .................... 230
1. Preventive suspension and back salaries ...
.............................................................. 232
2. Illegal dismissal, reinstatement, and back
salaries .................................................. 236
I. IMMUNITY OF PUBLIC OFFICERS ...................... 237
J. DISTINGUISH: DE FACTO AND DE JURE OFFICERS ...
.................................................................. 238
K. TERMINATION OF OFFICIAL RELATION .............. 240
1. Expiration of the Term or Tenure of the
Office ....................................................... 241
2. Reaching the Age Limit (Retirement) .... 241
3. Death or Permanent Disability .............. 242
4. Resignation ........................................... 242
5. Acceptance of an Incompatible Officer . 243
6. Abandonment of Office ......................... 243
7. Prescription of Right to Office ............... 244
8. Removal ................................................ 244
9. Impeachment ........................................ 245
10. Abolition of office .............................. 245
11. Conviction of a Crime ....................... 246
12. Recall ................................................ 246
13. Non-User/ Failure to assume Office . 246
L. CIVIL SERVICE ............................................. 246
LOCAL GOVERNMENTS...................................... 342
1. Scope .................................................... 246
2. Appointments to the Civil Service ......... 247
M. ACCOUNTABILITY OF PUBLIC OFFICERS ...... 255
1. Accountability (Administrative and Criminal)
.............................................................. 255
2. The Ombudsman and the Office of the
Special Prosecutor .................................. 258
3. Sandiganbayan ..................................... 262
N. TERM LIMITS ........................................... 263
ADMINISTRATIVE LAW ....................................... 265
A. GENERAL PRINCIPLES .................................. 266
B. ADMINISTRATIVE AGENCIES .......................... 266
C. POWERS OF ADMINISTRATIVE AGENCIES ........ 268
1. Rule-making Power ............................... 269
2. Adjudicatory Power ............................... 276
3. Fact-Finding, Investigative, Licensing, and
Rate-Fixing Powers ............................... 285
D. JUDICIAL REVIEW ......................................... 287
1. Doctrine of Primary Administrative
Jurisdiction ............................................ 288
2. Doctrine of Exhaustion of Administrative
Remedies .............................................. 289
PUBLIC INTERNATIONAL LAW .......................... 390
3. Doctrine of Finality of Administrative Action
292
ELECTION LAW ................................................... 293
A. SUFFRAGE ............................................... 294
1. Qualification and disqualification of voters ..
.............................................................. 295
2. Registration and deactivation of voters . 297
3. Inclusion and exclusion proceedings .... 301
4. Local and overseas absentee voting .... 303
5. Detainee voting ..................................... 304
B. POLITICAL PARTIES ................................ 305
1. Jurisdiction of the Commission on Elections
over Political Parties ................................ 306
POLITICAL LAW
2.Registration of Political Parties ............. 307
C. CANDIDACY ............................................. 311
1. Qualifications and disqualifications of
candidates ............................................. 311
2. Filing of certificates of candidacy .......... 314
D. CAMPAIGN ............................................... 320
1. Premature campaigning ........................ 321
2. Lawful and prohibited election propaganda
.............................................................. 323
3. Electoral Contributions .......................... 324
4. Limitations on expenses [Sec. 13, R.A.
7166] ........................................................ 326
5. Statement of contributions and expenses
(SOCE) .................................................... 326
E. BOARD OF ELECTION INSPECTORS AND
BOARD OF ELECTION CANVASSERS ........ 326
F. REMEDIES ................................................ 331
1. Petition to deny due course or cancel
certificate of candidacy ............................ 331
2. Petition for disqualification .................... 331
3. Failure of election; call for special election ..
.............................................................. 333
4. Pre-proclamation controversy ............... 335
5. Election Contest .................................... 339
A. AUTONOMOUS REGION AND THEIR RELATION TO
THE NATIONAL GOVERNMENT ........................ 343
B. PUBLIC CORPORATIONS ................................ 344
1. Concept; Distinguished from Government-
Owned or Controlled Corporations .......... 344
2. Classifications ....................................... 346
C. PRINCIPLES OF LOCAL AUTONOMY ................. 355
D. POWERS OF LOCAL GOVERNMENT UNITS
.................................................................. 359
1. General Welfare Clause ........................ 359
2. Eminent Domain .................................... 360
3. Taxing Power ........................................ 362
4. Closure and Opening of Roads ............. 364
5. Legislative Power .................................. 365
6. Ultra Vires Acts ..................................... 372
7. Corporate Powers ................................. 373
8. Liability of Local Government Units ....... 374
9. Settlement of Boundary Disputes .......... 376
10. Local Officials .................................... 377
11. Recall ................................................ 386
12. Term Limits ....................................... 388
A. CONCEPTS .............................................. 391
B. RELATIONSHIP BETWEEN
INTERNATIONAL AND PHILIPPINE
DOMESTIC LAW ....................................... 393
C. SOURCES OF INTERNATIONAL LAW ..... 394
D. SUBJECTS OF INTERNATIONAL LAW .... 399
1. States .................................................... 400
2. International Organizations ................... 402
3. Natural Or Juridical Persons ................. 402
4. Others ................................................... 403
E. JURISDICTION OF STATES ..................... 403
1. Basis of Jurisdiction .............................. 403
2. Exemptions from Jurisdiction ................ 404
U.P. LAW BOC POLITICAL LAW

F. DIPLOMATIC AND CONSULAR LAW....... 405

1. Diplomatic Law ...................................... 405
2. Consular Relations ................................ 408
G. NATIONALITY AND STATELESSNESS ... 411
H. GENERAL PRINCIPLES OF TREATY LAW....
.................................................................. 413
I. DOCTRINE OF STATE RESPONSIBILITY 417
J. REFUGEES .............................................. 422
K. TREATMENT OF ALIENS ......................... 423
L. INTERNATIONAL HUMAN RIGHTS LAW. 427
1. The Universal Declaration of Human Rights
(“UDHR”) ................................................. 427
2. The International Covenant on Civil and
Political Rights (“ICCPR”) ........................ 428
3. The International Covenant on Economic,
Social and Cultural Rights (“ICESCR”) .... 428
M. INTERNATIONAL HUMANITARIAN LAW
429
1. Categories of Armed Conflict: ............... 430
2. Core International Obligation of States . 430
3. Principles of International Humanitarian Law
.............................................................. 431
4. Law on Neutrality .................................. 432
N. LAW OF THE SEA................................. 433
1. Baselines .............................................. 433
2. Archipelagic States ............................... 433
3. Internal waters ...................................... 434
4. Territorial Sea ....................................... 434
5. Contiguous Zone ................................... 435
6. Exclusive Economic Zone (EEZ) .......... 435
7. Continental Shelf ................................... 436
8. The International Tribunal for the Law of the
Sea (ITLOS) ............................................ 437
O. INTERNATIONAL ENVIRONMENTAL LAW
.............................................................. 438
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW

Two Special Types of Obligations under

Public International Law:
A. CONCEPTS
1. Obligations Erga Omnes
Obligations Erga Omnes are “obligations of a
Public International Law is a body of
State towards the international community as a
principles, norms and processes which
whole,” which are the “concern of all States”
regulate the relations of States and other
and for whose protection all States have a
international persons, and governs their
“legal interest” [Barcelona Traction Case, (ICJ,
conduct affecting the interests of the
1970)]
international community of States as a whole
[MAGALLONA].
Erga Omnes literally means “flowing to all.”
Private International Law is the body of rules
Examples
of the domestic law of a State that is applicable
• Prohibition of acts of aggression;
when a legal issue contains a foreign element,
• Prohibition of genocide;
and it has to be decided whether a domestic
• Obligations concerning the protection of
rule should apply foreign law or relinquish
basic human rights [see also Barcelona
jurisdiction to a foreign court [AUST].
Traction Case (ICJ, 1970)];
• Obligations relating to self-determination
Public Private [see also East Timor Case (ICJ, 1995);
International International Palestinian Wall Advisory Opinion (ICJ,
Law Law 2004)];
• Obligations relating to the environment of
Nature International in National or common spaces. [Institut de Droit
nature. municipal in
character
International (“IDI”), Resolution on
Obligations erga omnes in International
Sources 1. Treaties and Domestic laws Law (2005) (hereinafter “IDI Resolution”)]
international for legal issues
conventions containing Standing to Bring Suit: Other States have
2. Customary foreign elements standing to bring a claim to the International
international
Court of Justice (ICJ) or other international
law
3. General judicial institution in relation to a dispute
principles of concerning compliance with that obligation [Art.
law [Art. 4, IDI Resolution].
38(1), ICJ
Statute] 2. Jus Cogens
A jus cogens is a norm accepted and
Subjects 1. States; Individuals
2. International (private persons) recognized by the international community of
organizations; States as a whole as a norm from which no
3. Individuals 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 (hereinafter referred to as “VCLT”)]

Jus Cogens is also known as a peremptory

norm of general international law.

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 U.P. LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW

Examples
• The prohibition against the use of force
under the UN Charter [Nicaragua Case
(ICJ, 1986)]; Sources 1. Erga From customary
• Law on genocide; Omnium: From international law
custom, it is (See later part of
• Prohibition against apartheid;
one that is Reviewer). There
• Self-determination; owed to all. All must be state
• Crimes against humanity; States have the practice and opinion
• Prohibition against slavery and slave trade; standing to juris.
• Piracy [BROWNLIE; MAGALLONA]. bring suit.

It can be that
Erga Omnes Jus Cogens there is a jus
cogens norm
As a Pertains to the Pertains to the legal that is also erga
omnes. Jus
concept non- interest of a State in
derogability of a the violation of a Cogens norms
norm and the norm. give rise to erga
validity of rules omnes
and acts that obligations.
conflict with it
2. Erga Omnes
Effect All States have It is an obligation Partes: From a
standing to that cannot be multilateral
bring a suit to contravened in any Treaty. All
enforce that matter. parties to the
obligation. treaty have
A treaty will be standing to
void: “A treaty is bring suit
void if, at the time of
its conclusion, it
conflicts with a Caveat on examples of the two special
peremptory norm of types of obligations:
general There is no authoritative listing of jus cogens
international law” norms and erga omnes obligations. The
(i.e. a jus cogens
commentaries of the ILC provide that they
norm) [Art. 53,
VCLT].
didn’t want to make it an exclusive list. Only the
prohibition on the use of force has been
Does not confer declared by the ICJ as a jus cogens norm.
jurisdiction: In
Armed Activities, it Concept of Ex Aequo et Bono (From the
held that the fact Article 38 (2) of the ICJ Statute)
that a rule has the
status of jus cogens This means, literally, “what is equitable and
does not confer good.” It denotes that a court may decide a
upon the Court a case on the basis of justice and equity, and not
jurisdiction which it be bound by technical legal rules [PELLET].
would not otherwise
possess (Armed The court may apply this standard to decide a
Activities on the
Territory of the
case when the parties to the dispute agree
Congo (New thereto [Art. 38(2), ICJ Statute]. However, this
Application: 2002) should not be confused with the ability of the
(Democratic ICJ to apply equitable principles in a case.
Republic of the
Congo v. Rwanda),

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 U.P. LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW

Responsibili- Collective Generally

B. RELATIONSHIP BETWEEN ty for responsibility
because it
entails
individual
INTERNATIONAL AND PHILIPPINE Wrongful
attaches responsibility
DOMESTIC LAW Acts directly to the in case of
State and not to breach
International Law v. National (Municipal) its nationals
Law
International Domestic Different Theories of the Relationship
Law Law between International Law and Domestic
Law
Scope The conduct of Applies to a a. Monist View
States and single country International and municipal legal systems
international or nation,
are fundamentally part of one legal order.
organizations, within a
their relations determined This view considers international law to be
with each other territory and superior, with municipal law being a mere
and, in certain its inhabitants subset of international law. International
circumstances, norms are thus applicable within municipal
their relations systems even without some positive act of
with persons,
the state
natural or
juridical [ALI
Third b. Monist-Naturalist View
Restatement] Public international law is superior to
municipal law, and both systems are but a
How made Through Issued by a part of a higher system of natural law.
consent, political
adopted by superior for
States as a observance c. Dualist View
common rule of International law and municipal law are
action separate systems. Only those issues
affecting international relations are within
Relations Regulates Regulates the scope of international law.
Regulated relations of relations of
States and individuals
other among Before an international norm can have an
international themselves or effect within a municipal legal system, that
persons with their own norm must be transformed, or adopted into
States the municipal system through a positive act
by a state organ. Customary international
Sources Derived Consists
law and general principles of international
principally from mainly of
treaties, enactments law, however, need not be transformed or
international from the adopted.
custom and lawmaking
general authority of d. Coordinationist View
principles of law each State International law and municipal law operate
[Art. 38(1), ICJ in different spheres. Hence, the laws
Statute]
themselves do not conflict. However, there
Settlement of By means of By means of may be a conflict in obligations imposed by
Disputes State-to-State local either system. In such a case, the result is
transactions administrative not the invalidation of national law, but
and judicial responsibility under international law on the
processes part of that State.

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 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
How International Law Becomes part of
Philippine Law
1. Doctrine of Incorporation: The
Philippines adopts the “generally accepted
principles of international law” (customary
international law) as part of the law of the
land [Sec. 2, Art. II, 1987 Constitution].
They are deemed as national law whether
or not they are enacted as statutory or
legislative rules [MAGALLONA].
By the doctrine of incorporation, the
country is bound by generally accepted
principles of international law, which are
considered to be automatically part of our
own laws. [Tañada v. Angara, G.R. No.
118295. May 2, 1997]
2. Doctrine of Transformation: Treaties or
international agreements shall become
valid and effective upon concurrence by at
least two-thirds of all the Members of the
Senate [Sec. 21, Art. VII, 1987
Constitution]. These rules of international
law are not part of municipal law unless
they are transformed via legislation
[MAGALLONA].
Special Case for the presence of certain
foreign troops in the Philippines [Sec. 25,
Art. XVIII, 1987 Constitution]
After the expiration in 1991 of the Agreement
between the Republic of the Philippines and
the United States of America concerning
Military Bases, foreign military bases, troops,
or facilities shall not be allowed in the
Philippines except under a treaty 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
recognized as a treaty by the other contracting
State.
Philippine Domestic Law in Public
International Law
General Rule: A State cannot invoke its own
national law to resist an international claim or
excuse itself from breach of duty under
international law [Art. 6, VCLT; Polish
Nationals in Danzig Case (PCIJ, 1932); Art. 32,
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POLITICAL LAW
Articles on State Responsibility (hereinafter
“ASR”)].
A party may not invoke the provisions of its
internal law as justification for its failure to
perform a treaty. This rule is without prejudice
to article 46 [Art. 27, VCLT].
Exception: A State may invoke the fact that its
consent to be bound by a treaty has been
expressed in violation of a provision of its
internal law regarding competence to conclude
treaties as invalidating its consent if that
violation was manifest and concerned a rule of
its internal law of fundamental importance [Art.
46, VCLT].
C. SOURCES OF
INTERNATIONAL LAW
Listing is found in Article 38 (1 (a) – (d)) of the
ICJ Statute:
Article 38 of the ICJ Statute
1. The Court, whose function is to decide in
accordance with international law such
disputes
as are submitted to it, shall apply:
a. international conventions, whether
general or particular, establishing
rules expressly recognized by the
contesting states;
b. international custom, as evidence of
a general practice accepted as law;
c. the general principles of law
recognized by civilized nations ;
d. subject to the provisions of Article
59, judicial decisions and the
teachings of the most highly qualified
publicists of the various nations, as
subsidiary means for the
determination of rules of law.
2. This provision shall not prejudice the
power of the Court to decide a case ex
aequo et bono, if the parties agree thereto.
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW

Shorthand Terms for sources of PRIMARY SOURCES

international law:
• 1(a) refers to CONVENTIONAL
INTERNATIONAL LAW
• 1(b) refers to CUSTOMARY
INTERNATIONAL LAW (hereinafter
referred to as CIL)
• 1(c) refers to GENERAL PRINCIPLES OF
LAW (hereinafter referred to as GPL)
• 1(d) refers to JUDICIAL DECISIONS and
TEACHINGS of the most highly qualified
publicists
Types of Sources of International Law
1. Primary Sources
a. Conventional International Law
b. Customary International Law
c. General Principles of Law
2. Subsidiary Sources
a. Judicial Decisions
b. Teachings of the most highly
qualified publicists
The relation between the primary sources
and the subsidiary sources
1. Primary sources create law (what is the
law) while subsidiary sources are merely
evidence of what the law is (tell us what is
in the law)
2. There is no stare decisis in international
law, i.e. no binding precedent. All decisions
of the ICJ are only binding as between the
parties. Therefore, the decisions of the ICJ
only serve as subsidiary sources of
international law.
The decision of the Court has no binding
force except between the parties and in
respect of that particular case. (Article 59
of the ICJ Statute
Relation between the three Substantive
Sources of International Law
There is no established hierarchy between the
three. However, it is recognized that
Conventional and Customary international law
apply first, and GPL is resorted to when there
is an absence of Conventional or Customary
International Law.
1. Conventional International Law
Definition of Treaty
A treaty is an international agreement
concluded between states in written form and
governed by international law, whether
embodied in a single instrument or in two or
more related instruments and whatever its
particular designation” [Art. 2(1)(a), VCLT].
Requisites
1. Written Form
● Note that it does not require any
specific form, as long as it is written.
(See Maritime Delimitations and
Territorial Questions between Qatar
and Bahrain, Qatar v. Bahrain, July 1,
1994)
2. Between States
3. Governed by international Law
Basic Principles of Treaties
1. The primary body of law governing treaties
is the Vienna Convention on the Law of
Treaties, which is considered binding as
Customary International law.
2. It is based on consent
a. Treaty obligation is based on
consent. No state may be bound by
a treaty obligation unless it has so
consented [Art. 34, VCLT].
b. Consent is Manifested by:
signature, exchange of instruments
constituting a treaty, ratification,
acceptance, approval or
accession, or by any other means
if so agreed. [Art. 11, VCLT, but
see Article 12-14 of VCLT for
specific rules governing giving
consent by exchange of
instruments, signature or
ratification]
3. Pacta Sunt Servanda
Every treaty in force is binding upon the
parties to it and must be performed by them
in good faith [Art. 26, VCLT].

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 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
Note: This is considered as customary
international law and applies to all
obligations contained in a treaty.
4. Generally Not Binding on Third States, i.e.
non-contracting parties.
General Rule: A treaty does not create
either obligations or rights for a third State
without its consent [Art. 34, VCLT].
Exceptions:
a. When the third party accepts a
provision establishing an obligation
for that third party. (Art. 35, VCLT)
b. When the third party accepts a right
provided for and exercises such
right in accordance with the
conditions established in the treaty.
( Art. 36, VCLT)
5. Treaties are Non-Retroactive
Note: Unless a different intention appears
from the treaty or is otherwise established,
its provisions do not bind a party in relation
to any act or fact which took place or any
situation which ceased to exist before the
date of the entry into force of the treaty with
respect to that party [Art. 28, VCLT].
Reservations to Treaties
A reservation is a unilateral statement,
however phrased or named, made by a State,
when signing, ratifying, accepting, approving or
acceding to a treaty, whereby it purports to
exclude or to modify the legal effect of certain
provisions of the treaty in their application to
that State [Art. 2 (d), VCLT];
General Principles on Reservations
1. Generally they are allowed when the State
is signing, ratifying, accepting, approving or
acceding to a treaty, unless they are (1)
Prohibited by the treaty (2) Only specified
reservations are allowed by the treaty or (3)
The reservation is incompatible with the
object and purpose of the treaty [Art. 19,
VCLT].
2. To be considered binding on the other
contracting state to the treaty, that State
Page 396 of 439
POLITICAL LAW
must accept the reservation. A reservation
is presumed to be accepted. A reservation
is deemed unaccepted when another
contracting state objects. [See Art. 20,
VCLT]
Grounds for Terminating a Treaty (Articles
46-53 and 60-62 of VCLT)
1. Provisions of Internal Law Regarding
Competence to Conclude Treaties [Art. 46]
2. Specific Restrictions on Authority to
Express Consent of a State [Art. 47]
3. Error [Art. 48]
4. Fraud [Art. 49]
5. Corruption of a Representative of a State
[Art. 50]
6. Coercion of a Representative [Art. 51]
7. Coercion of a State by Threat or Use of
Force [Art. 52]
8. Treaties Conflicting with Jus Cogens [Art.
53]
9. Termination or Suspension of a Treaty as
a Consequence of its Breach [Art. 60]
10. Supervening Impossibility of Performance
[Art. 61]
11. Fundamental Change of Circumstances
[Art. 62]
2. Customary International Law (CIL)
Definition
General Practice Accepted as law [Art. 38 (1)
(b), ICJ Statute].
Elements
1. State Practice
2. Opinio Juris
Before a norm may become customary
international law binding on all States, there
must be state practice and opinio juris sive
necessitates. [North Sea Continental Shelf
Cases (ICJ, 1969)]
State Practice
The practice must be consistent and general.
Consistency requires substantial uniformity
and not necessarily complete uniformity in
practice [Asylum Case (ICJ, 1950)]. Generality
does not require universality.
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
This means that the practice is virtually uniform
and extensive and established, widespread,
consistent, representative (good number of
states) [THIRLWAY].
State practice means that it pertains to the
actions of a STATE only, not of individuals.
The following acts may evidence state practice
[HARRIS]:
1. Diplomatic correspondence;
2. Policy statements;
3. Press releases;
4. Opinions of official legal advisers;
5. Official manuals on legal decisions
(executive decisions and practices, and
government comments on drafts by the
ILC);
6. International and national judicial
decisions;
7. Recitals in treaties and international
instruments;
8. Practice of international organs
Opinio Juris
This refers to the belief on the part of states that
a particular practice is required by law, and not
because of courtesy or political expediency
[North Sea Continental Shelf Cases (ICJ,
1969)]. (i.e. the State acts in such a manner
because it believes it is obligated to do so)
Binding Effect of CIL
General Rule: Customary International Law is
binding on all states.
Exception: Persistent Objector - When a State
has continuously objected to a new customary
norm at the time when it is yet in the process of
formation, by such persistent objection the
norm will not be applicable as against that state
[MAGALLONA and Asylum Case (ICJ, 1950)]
Note however that the ICJ has recognized the
possibility of regional custom in the Asylum
Case (ICJ, 1950) and of bilateral custom in
the Right of Passage over Indian Territory
Case (ICJ, 1960).
Page 397 of 439
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Duality of Norms
It is possible for a norm of international law to
exist both as a customary norm and a
conventional norm [e.g. prohibition against the
use of force]. Such norms are said to be of dual
character.
Norms of dual character come into being when:
a. a treaty provision simply restates a
customary norm;
b. a treaty provision constitutes evidence of
custom; or
c. a treaty provision crystallizes into a
customary norm.
For a treaty provision to crystallize into custom,
the provision must be norm-creating or law-
making, creating legal obligations which are
not dissolved by their fulfillment [North Sea
Continental Shelf Cases (ICJ, 1969)].
The customary norm retains a separate identity
even if its content is identical with that of a
treaty norm. Thus, a State that cannot hold
another State responsible for a breach of a
treaty obligation can still hold the erring state
responsible for the breach of the identical
customary norm [Nicaragua Case (ICJ, 1986)].
Philippine Practice
The Supreme Court has identified the following
customary norms:
a. Rules and principles of land warfare and of
humanitarian law under the Hague
Convention and the Geneva Convention
[Kuroda v. Jalandoni, G.R. No. L-2662
(1949)];
b. Pacta sunt servanda [La Chemise Lacoste
v. Fernandez, G.R. No. L-63796-97
(1984)];
c. Human rights as defined under the
Universal Declaration of Human Rights
[Reyes v. Bagatsing, G.R. No. L-65366
(1983)];
d. The principle of restrictive sovereign
immunity [Sanders v. Veridiano, G.R. No.
L-46930 (1988)];
e. The principle in diplomatic law that the
receiving state has the special duty to
protect the premises of the diplomatic
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
mission of the sending state [Reyes v.
Bagatsing, G.R. No. L-65366 (1983)];
f. The right of a citizen to return to his own
country [Marcos v. Manglapus, G.R. No.
88211 (1989)];
g. The principle that “a foreign army allowed
to march through friendly country or to be
stationed in it, by permission of its
government or sovereign, is exempt from
criminal jurisdiction of the place” [Raquiza
v. Bradford, G.R. No. L-44 (1945)];
h. The principle that judicial acts, not of a
political complexion of a de facto
government established by the military
occupant in an enemy territory, are valid
under international law [Montebon v.
Director of Prisons, G.R. No. L-1352
(1947)];
i. The principle that private property seized
and used by the enemy in times of war
under circumstances not constituting valid
requisition does not become enemy
property and its private ownership is
retained, the enemy having acquired only
its temporary use [Noceda v. Escobar,
G.R. No. L-2939 (1950)];
j. The principle that a State has the right to
protect itself and its revenues, a right not
limited to its own territory but extending to
the high seas [Asaali v. Commissioner,
G.R. No. L-24170 (1968)].
3. General Principles of Law (GPL)
Definition: These refer to those general
principles in municipal law (particularly those of
private law) that may be appropriated to apply
to the relations of states [OPPENHEIM].
Function of GPL: To avoid a non liquet, i.e.
when a court does not have a treaty or
customary norm to decide on.
Examples of General Principles of Law
1. Estoppel ([Temple of Preah Vihear Case
(ICJ, 1962)].
2. Res Judicata
3. Res Inter Alios Acta
4. Prescription
5. Duty to Make Reparations [Chorzow
Factory Case (PCIJ, 1927)]
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6. Abuse of Rights
7. Good Faith
8. Principle of Reciprocity
9. Circumstantial Evidence
Circumstantial evidence is admitted as
indirect evidence in all systems of law and
its use is recognized by international
decisions. Such circumstantial evidence,
however, must consist of a series of facts
or events that lead to a single conclusion
[Corfu Channel Case (ICJ, 1949)].
SUBSIDIARY SOURCES
Judicial Decisions and Teachings of Highly
Qualified Publicists
Function: These two sources listed in Article
38 (1 (d)) of the ICJ Statute tell us what the law
is. They are evidence of what international law
is.
Judicial Decisions
Includes decisions of international tribunals
and those of municipal courts. There is no
binding precedent in international law pursuant
to Article 59 of the ICJ Statute
Highly Qualified Publicists
No clear definition of what is a highly qualified
publicist.
The difference between Judicial Decisions
and Writings of Highly Qualified Publicists
It is not so much that judicial decisions
necessarily possess a higher intrinsic value
than the teachings of publicists, but that they
have ‘a more direct and immediate impact on
the realities of international life. BORDA]
United Nations Declaration
General Rule: General Assembly resolutions
are not binding on member states.
But when they are concerned with general
norms of international law, acceptance by all or
most members constitutes evidence of the
opinions of governments in what is the widest
forum for the expression of such opinions.
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
Resolutions may satisfy the subjective element
opinio juris by expressly articulating a belief
concerning the existence of principles and
rules of international law. [HARRIS]
State practice may also be evidenced either in
declarations of general principle or in
resolutions dealing with particular cases.
General Assembly resolutions may contribute
to the formation of custom as a kind of
collective state practice. These resolutions can
be considered the collective equivalent of
unilateral general statements.
In some cases, a resolution may have the
effect of an authoritative interpretation and
application of the principles of the UN Charter
[CRAWFORD]
Exception: Certain UN organizational matters
Security Council Resolutions
The Security Council is empowered to issue
binding legal standards when acting under
Chapter VII of the UN Charter concerning
action with respect to threats to peace,
breaches of the peace, and acts of aggression.
The Security Council may decide what
measures involving the use of armed force are
to be employed to give effect to its decisions.
When the Security Council decides not to
resort to recommendations but to issue
decisions, these are binding on the strength of
Article 25 of the UN Charter.
Actions of organs of international
organizations created by treaty
The treaty constituting an international
organization may entrust a body of the
organization to adopt binding legal standards
The rules enacted shall be binding only to the
member states of the organization. It cannot
bind third states. [CASSESE]
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D. SUBJECTS OF
INTERNATIONAL LAW
Definition of Subjects of International Law:
Entities which are:
1. Capable of possessing international rights
and duties; and
2. Having the capacity to maintain these
rights by bringing international claims
[Reparations for Injuries Advisory Opinion
(ICJ, 1949)].
Subjects of International Law:
1. States;
2. International organizations; and
3. Natural or Juridical Persons
Note: States are generally considered as the
primary subjects of international law.
Rationale: ”xxx the world is today organized on
the basis of the co-existence of States, and that
fundamental changes will take place only
through State action, whether affirmative or
negative’. The States are the repositories of
legitimated authority over peoples and
territories. It is only in terms of State powers,
prerogatives, jurisdictional limits and law-
making capabilities that territorial limits and
jurisdiction, responsibility for official actions,
and a host of other questions of co-existence
between nations can be determined.”
[FRIEDMANN]
Objects of international law are persons or
things in respect of which rights are held and
obligations are assumed by the subject. They
are not directly governed by the rules of
international law. Their rights (e.g. human
rights of individuals) may be asserted and their
responsibilities imposed indirectly, through the
instrumentality of an intermediate agency (e.g.
state).
This distinction between objects and subjects
of International Law has been criticized as
unhelpful, as non-state actors already have
standing to bring suits in the fields of
international criminal law and international
human rights law.
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
The United Nations has an objective
international personality [Reparations for
Injuries Advisory Opinion (ICJ, 1949)].
1. States
A state exists when it complies with the four (4)
requisites listed in the Montevideo Convention,
which is considered as customary international
law for defining the requisites of statehood.
FOUR REQUISITES TO BE A STATE:
Montevideo Convention, Article 1
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.
a. Permanent Population
It refers to a permanent population and
intended to be used in association with that of
territory, and connotes a stable community.
b. Defined Territory
State territory is that defined portion of the
surface of the globe, which is subjected to the
sovereignty of the State [OPPENHEIM].
A state must exercise control over a certain
area. It need not be exactly defined by metes
and bounds, so long as there exists a
reasonable certainty of identifying it. No
minimum land area is required.
Modes of Acquiring Territory
● Occupation
o Occupation refers not to mere
discovery, but to effective
exercise of sovereignty over a
territory that is terra nullius (i.e.,
not subject to the sovereignty of
any other state).
o Effective occupation means
continued display of authority. It
involves:
o the intention and will to act as
sovereign or animus occupandi;
and
Page 400 of 439
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o some actual exercise or display of
such authority [Eastern Greenland
Case (PCIJ, 1933)].
● Prescription
o Through prescription, title is
acquired by continuous and
undisturbed exercise of
sovereignty over a period of time.
o In contrast [to occupation],
prescription is the acquisition of
territory that is not terra nullius,
obtained by means that may
initially have been of doubtful
legality but is uninterrupted and
uncontested for a long time. Timely
protests by the ‘former’ sovereign
will usually bar the claim [AUST].
● Accession or Accretion
o Accession or accretion is the
natural process of land formation
resulting in the increase of territory.
● Cession
o Cession means the transfer of
territory from one state to another
by treaty (derivative). It is the only
bilateral mode of acquiring
territorial sovereignty.
c. Government
Denotes a “stable political community
supporting a legal order to the exclusion of
another in a given area”.
The existence of effective government, with
centralized administrative and legislative
organs, is the best evidence of a stable political
community. It is a centralized structure capable
of exercising effective control over a human
community living in a given territory.
State practice suggests that the requirement of
a “stable political organization” in control of the
territory does not apply during a civil war or
where there is a collapse of law and order in a
state that already exists.
Under the rules on succession of States, even
changes of entire governments do not affect
the identity and personality of the state. Once
statehood is established, neither invasion nor
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
disorder alone can remove its character as a
state [BROWNLIE].
Types of Government
De Jure: Government from law, that is, one
with a color of legitimacy.
De Facto: One that governs without a mandate
of law. So long as it is in place, it may command
obedience from the inhabitants of the occupied
area. The de facto ruler may suspend laws and
enact new ones.
● De Facto Proper/Government by
Revolution: That which usurps, either by
force or the will of the majority, the legal
government and maintains control against
it;
● Government by Paramount Force/by
Occupation: Results from the occupation of
a state or a part thereof by invading forces
in time of war; and
● Government by Secession: Government
established as an independent government
by inhabitants of a country who rise in
insurrection against the parent state [See
Co Kim Cham v. Valdez Tan Keh, G.R. No.
L-5 (1945)].
d. Capacity To Enter Into Relations With
Other States/Independence
A state must be free from outside control in
conducting foreign and internal affairs, i.e.
sovereign and independent.
The State is the sole executive and legislative
authority. It must be independent of other state
legal orders, and any interference by such legal
orders, or by an international agency, must be
based on a title of international law.
Independence is the decisive criterion of
statehood. This concept of independence is
represented by the requirement of capacity to
enter into relations with other states.
Page 401 of 439
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Concepts Relating to Statehood:
a. Recognition
Recognition is an act by which a state
acknowledges the existence of another state,
government or belligerent community and
indicates willingness to deal with the entity as
such under international law.
As a public act of state, recognition is an
optional and political act, and there is no legal
duty in this regard.
Effect of Recognition
● Declaratory School: Recognition is a
mere declaration or acknowledgement of
an existing state of law and fact, legal
personality having been previously
conferred by operation of law. This is the
prevailing view [BROWNLIE].
○ Montevideo Convention, Article 3:
The political existence of the
state is independent of
recognition by the other states.
Even before recognition the state
has the right to defend its integrity
and independence, to provide for
its conservation and prosperity,
and consequently to organize itself
as it sees fit, to legislate upon its
interests, administer its services,
and to define the jurisdiction and
competence of its courts. The
exercise of these rights has no
other limitation than the exercise of
the rights of other states according
to international law.
● Constitutive School: The political act of
recognition is a precondition to the
existence of legal rights of a state. In its
logical extreme, this is to say that the very
personality of a state depends on the
political decision of other states. This is the
minority view [BROWNLIE]
b. Failed States
States in which institutions and law and order
have totally or partially collapsed under the
pressure and amidst the confusion of erupting
violence, yet which subsist as a ghostly
presence on the world map. xxx Though
retaining legal capacity, has for all practical
purposes, lost the ability to exercise it.
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
However, they are continued to be recognized
as states during their time of failure
c. Secession
Secession is the effort of a group or section of
a state to withdraw itself from the political and
constitutional authority of that state, with a view
to achieving statehood for a new territorial unit
on the international plane [In re Secession of
Quebec (Can., 1998)].
Grounds for Secession:
(1) Colonization;
(2) Alien subjugation, domination, or
exploitation outside the colonial
context;
(3) Remedial Secession: When a people is
blocked from the meaningful exercise
of its right to self-determination
internally, it is entitled, as a last resort,
to exercise it by secession [In re
Secession of Quebec (Can., 1998)].
d. The Principle of Continuity and
Obligations Contracted by De Facto
Governments
The state is bound by engagements entered
into by governments that have ceased to exist;
the restored government is generally liable for
the acts of the usurper.
A general government de facto having
completely taken the place of the regularly
constituted authorities in the state binds the
nation. So far as its international obligations
are concerned, it represents the state. It
succeeds to the debts of the regular
government it has displaced and transmits its
own obligations to succeeding titular
governments. Its loans and contracts bind the
state and the state is responsible for the
governmental acts of the de facto authorities.
In general its treaties are valid obligations of
the state. It may alienate the national territory
and the judgments of its courts are admitted to
be effective after its authority has ceased.
[Tinoco Arbitration; (1 U.N. Rep. Int’l Arb.
Awards 369, 1923)]
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2. International Organizations
An organization established by a treaty or other
instrument governed by international law and
possessing its own international legal
personality. International organizations may
include as members, in addition to States,
other entities. [Draft Articles on the
Responsibility of International Organizations,
Art. 2(a)]
General rule: International organizations have
special personality. The status and powers of
an international organization is determined by
agreement and not by general or customary
international law. They are considered subjects
of international law “if their legal personality is
established by their constituent instrument.”
Thus, legal personality in this context is a
relative concept [MAGALLONA].
Exception: United Nations, which has
objective international personality. The UN’s
personality is binding on the whole
international community, including States who
are not UN members [Reparations for Injuries
Advisory Opinion (ICJ, 1949)].
3. Natural Or Juridical Persons
In general, individuals, whether natural or
juridical, do not have international legal
personalities.
However, individuals may assume the status of
subjects of international law only on the basis
of agreement by states and in specific context,
not in accordance with general or customary
international law.
Examples of Instances where natural
juridical persons are granted personality
● Art. 187(c)-(e), UNCLOS provides for
jurisdiction of the Sea-Bed Disputes
Chamber of the ITLOS over disputes
between parties to contracts relating to the
exploitation of marine resources. Parties to
such contracts may be natural or juridical
persons.
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
● The London Agreement of the International
Military Tribunal at Nuremberg, relating to
crimes against peace, war crimes and
crimes against humanity, imposed duties
and liabilities upon individuals as well as
upon states.
● Art. VI of the Convention on the Prevention
and Punishment of the Crime of Genocide
defined “parties charged with genocide” as
including individuals [MAGALLONA].
● The International Criminal Court has
jurisdiction over individuals who commit
genocide, crimes against humanity and
war crimes, subject to conditions of the ICC
Statute [Art. 25(1), ICC Statute, in relation
to Art. 5].
4. Others
E. JURISDICTION OF
STATES
Jurisdiction means the power of a state under
international law to govern persons and
property by its municipal law. This may be
criminal or civil, and may be exclusive or
concurrent with other states [HARRIS].
Types of Jurisdiction:
a. Prescriptive Jurisdiction: This refers to
the power of a State to make its law
applicable to the activities, relations, or
status of persons, or the interests of
persons in things, whether by legislation,
by executive act or order, by administrative
rule or regulation, or by determination by a
court.
b. Adjudicative Jurisdiction: This refers to
the State’s jurisdiction to subject persons
or things to the process of its courts or
administrative tribunals, whether in civil or
in criminal proceedings, whether or not the
state is a party to the proceedings.
c. Enforcement Jurisdiction: This refers to
the State’s jurisdiction to enforce or compel
compliance or to punish noncompliance
with its laws or regulations, whether
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through the courts or by use of executive,
administrative, police, or other nonjudicial
action.
1. Basis of Jurisdiction
a. Territoriality Principle: Jurisdiction is
determined by reference to the place
where the act occurred or was committed.
A State takes jurisdiction over persons or
events within its territory. [MAGALLONA]
Usually refers to criminal jurisdiction.
b. Nationality Principle: A State may
exercise jurisdiction over an offender by
virtue of his being its national, without
regard as to where he was at the time the
offense was committed and without respect
to the nature of the offense
[MAGALLONA].
c. Protective Principle: A State may
exercise jurisdiction over an offense
committed outside its territory by its
national or non-national, by reason of
protecting its security or vital interests
d. Universality Principle: A State may
exercise jurisdiction over crimes committed
without respect to the nationality of the
offender, on the ground that such crimes
are declared as international crimes by the
international community as a whole and
thus are prohibited by international law
[MAGALLONA]. Example: Jurisdiction is
asserted with respect to acts considered
committed against the whole world [e.g.
piracy, see People v. Lol-lo and Saraw,
G.R. No. 17958 (1922)].
e. Passive Personality Principle: A State
may exercise jurisdiction against foreign
nationals who commit acts to the injury of
its nationals within the territory of another
State [MAGALLONA]. A court has
jurisdiction if the offended party of the act
is a national of the forum state [S.S. Lotus
Case (PCA, 1927)].
Conflict of Jurisdiction
This arises when two or more states can
exercise jurisdiction based on one or more
different principles of jurisdiction (ex:
Universality v. Territoriality)
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
2. Exemptions from Jurisdiction
a. Acts of State Doctrine
State Immunity
General Rule: This refers to a principle by
which a state, its agents, and property are
immune from the jurisdiction of another state
[MAGALLONA].
This principle is premised on the juridical
equality of states, according to which a state
may not impose its authority or extend its
jurisdiction to another state without the consent
of the latter, through a waiver of immunity.
Thus, domestic courts must decline to hear
cases against foreign sovereigns out of
deference to their role as sovereigns.
Exception: When a state waives the immunity
or consents to being sued.
Types of State Immunity
1. Rationae Materiae: Attaches to the official
acts of State officials and is determined by
reference to the nature of the acts in
question rather than by reference to the
particular office of the official.
a. Doctrine of Restrictive Immunity
divides this immunity into two
categories:
i. Acts performed jure
imperii: that is, private or
commercial transactions of
States, are subject to
foreign jurisdiction.
ii. Acts performed jure
gestionis: the foreign State
in its capacity as a
sovereign, are immune.
2. Rationae Personae: Attaches to the office
itself. However, in contrast, it covers official
and personal acts.
The Nature of State Immunity
1. It is preliminary in nature and does not
depend on the obligation breached by
the State.
2. It is a customary norm.
Page 404 of 439
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3. Such immunity applies even if the claim
against the state is for violation of a jus
cogens norm in international law.
“Immunity from jurisdiction is an immunity not
merely from being subjected to an adverse
judgment but from being subjected to the trial
process. It is, therefore, necessarily
preliminary in nature. […]In addition, there is
a substantial body of State practice from other
countries which demonstrates that customary
international law does not treat a State’s
entitlement to immunity as dependent upon
the gravity of the act of which it is accused or
the peremptory nature of the rule which it is
alleged to have violated.” [Jurisdictional
Immunities of the State, Germany v. Italy (ICJ,
2012)]
b. International Organizations and
their Officers
The rapid growth of international organizations
under contemporary international law has
paved the way for the development of the
concept of international immunities.
There are 3 propositions underlying the grant
of international immunities to international
organizations. These principles, contained in
the ILO Memorandum are stated thus:
(1) International institutions should have a
status which protects them against
control or interference by any one
government in the performance of
functions for the effective discharge of
which they are responsible to
democratically-constituted
international bodies in which all the
nations concerned are represented;
(2) No country should derive any national
financial advantage by levying fiscal
charges on common international
funds; and
(3) The international organization should,
as a collectivity of States members, be
accorded the facilities for the conduct
of its official business customarily
extended to each other by its individual
member States.
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
International immunity is not concerned with
the status, dignity or privileges of individuals,
but with the elements of functional
independence necessary to free international
institutions from national control and enable
them to discharge their responsibilities
impartially on behalf of all their members. The
raison d’etre for these immunities is the
assurance of unimpeded performance of
their functions by the agencies concerned
[International Catholic Immigration
Commission v. Calleja, G.R. No. 85750
(1990)].
F. DIPLOMATIC AND
CONSULAR LAW
1. Diplomatic Law
Definition: Rules regulating the various
aspects of diplomatic relations.
Nature: The rules of diplomatic law “constitute
a self-contained regime, which on the one
hand, lays down the receiving state’s
obligations regarding the facilities, privileges
and immunities to be accorded to diplomatic
missions and, on the other, foresees their
possible abuse by members of the mission and
specifies the means at the disposal of the
receiving state to counter any such abuse.”
(US Diplomatic and Consular Staff in Tehran)
Relevant Convention: Vienna Convention on
Diplomatic Relations (“VCDR”)
Diplomatic Intercourse/Right of legation
The right of a state to send and receive
diplomatic missions, which enables states to
carry on friendly intercourse.
Diplomatic relations and diplomatic missions
are separately established by mutual consent
(See Art. 2, VCDR)
Page 405 of 439
POLITICAL LAW
a. Agents of Diplomatic Relations
i. Diplomatic Corps
This refers to the collectivity of all diplomatic
envoys accredited to a state composed of:
1. Head of mission, classified into:
a. Ambassadors or nuncios
accredited to the heads of
State, and other heads of
mission of equivalent rank;
b. Envoys, ministers, and
internuncios accredited to the
heads of State;
c. Charges d’affaires accredited
to Ministers of Foreign Affairs
[Art. 14, VCDR];
2. Diplomatic staff, engaged in diplomatic
activities and are accorded diplomatic
rank [Art. 1(d), VCDR];
3. Administrative and technical staff,
those employed in the administrative
and technical service of the mission
[Art. 1(f), VCDR];
4. Service staff, engaged in the domestic
service of the mission [Art. 1(g), VCDR]
[Nachura].
In the Philippines, the President appoints,
sends, and instructs the diplomatic and
consular representatives [Sec. 16, Art. VII,
1987 Constitution].
ii. Heads of State
The head of State represents the sovereignty
of the State and enjoys the right to special
protection for his physical safety and the
preservation of his honor and reputation.
The head of State is immune from criminal and
civil jurisdiction, except when he himself is the
plaintiff, and is not subject to tax or exchange
or currency restrictions. Upon the principle of
extraterritoriality, his quarters, archives,
property, and means of transportation are
inviolate.
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
iii. Foreign Office
This is the body entrusted with the conduct of
actual day-to-day foreign affairs.
It is headed by a secretary or a minister who,
in proper cases, may make binding
declarations on behalf of his government
[Eastern Greenland Case (PCIJ, 1933)].
b. Functions and Duties of Agents
1. Represent the sending State in the
receiving State [Art. 3(1)(a), VCDR];
2. Protect in the receiving State the
interests of the sending State and its
nationals, within the limits allowed by
international law [Art. 3(1)(b), VCDR];
3. Negotiate with the government of the
receiving State [Art. 3(1)(c), VCDR];
4. Ascertain, by all lawful means, the
conditions and developments in the
receiving State and reporting the same
to the sending State [Art. 3(1)(d),
VCDR];
5. Promote friendly relations between the
sending State and receiving State, and
developing their economic, cultural and
scientific relations [Art. 3(1)(e), VCDR];
6. If diplomatic relation is severed, entrust
the protection of its nationals to the
diplomatic mission of a third state
acceptable to the receiving state [Art.
45, VCDR]; and
7. May protect the interest of a third State
by agreement with the receiving State,
if there are no diplomatic relations
between the third state and the
receiving state [Art. 46, VCDR]
[Magallona].
c. Diplomatic Immunities and Privileges
Theoretical Bases
Diplomatic immunities and privileges have
been justified under the following theories:
• Extraterritoriality theory: The premises of
the diplomatic mission represent a sort of
extension of the territory of the sending
State.
• Representational theory: The diplomatic
mission personifies the sending State.
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• Functional necessity theory: The
privileges and immunities are necessary to
enable the diplomatic mission to perform
its functions. This theory was adopted by
the ILC when it drafted the draft articles of
the VCDR [MAGALLONA].
i. Personal Inviolability
General Rule: The person of a diplomatic
agent shall be inviolable. He shall not be liable
to any form of arrest or detention. [Art. 29,
VCDR]
Exception: The diplomatic envoy may be
arrested temporarily in case of urgent danger,
such as when he commits an act of violence
which makes it necessary to put him under
restraint for the purpose of preventing similar
acts [Diplomatic and Consular Staff in Tehran
Case (ICJ, 1980)].
The receiving State shall treat him with due
respect and shall take all appropriate steps to
prevent any attack on his person, freedom or
dignity. [Art. 29, VCDR]
The duty to treat him with due respect and
protect his person, freedom or dignity from
physical interference by other persons [Art. 22,
VCDR].
Scope
1. The private residence of a diplomatic agent
shall enjoy the same inviolability and
protection as the premises of the mission.
2. His papers, correspondence and, except
as provided in paragraph 3 of article 31
3. His property shall likewise enjoy
inviolability. [Art. 30 VCDR]
ii. Inviolability of Premises of the
Mission and the Archives
The term “premises of the mission” means the
buildings or parts of the buildings and the land
ancillary thereto used for the purposes of the
mission including the residence of the
diplomatic agent [Art. 1(i), VCDR]. This is
irrespective of the ownership of the premises
[Magallona, citing ILC Yearbook].
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
Rule
1. The premises of the mission shall be
inviolable. The agents of the receiving
State may not enter them, except with the
consent of the head of the mission.
2. The receiving State is under a special duty
to take all appropriate steps to protect the
premises of the mission against any
intrusion or damage and to prevent any
disturbance of the peace of the mission or
impairment of its dignity.
3. The premises of the mission, their
furnishings and other property thereon and
the means of transport of the mission shall
be immune from search, requisition,
attachment or execution. [Art. 22, VCDR]
Continuing Duty
If diplomatic relations are broken off between
two States, or if a mission is permanently or
temporarily recalled:
1. The receiving State must, even in case
of armed conflict, respect and protect
the premises of the mission, together
with its property and archives;
2. The sending State may entrust the
custody of the premises of the mission,
together with its property and archives,
to a third State acceptable to the
receiving State;
3. The sending State may entrust the
protection of its interests and those of
its nationals to a third State acceptable
to the receiving State. [Art. 45, VCDR].
iii. Right to Official Communication
Rule: The envoy is entitled to fully and freely
communicate with his government.
1. The receiving state shall permit and protect
free communication on the part of the
mission for all official purposes;
2. The mission may employ all appropriate
means to send and receive messages by
any of the usual modes of communication
or by diplomatic courier, which shall enjoy
inviolability;
3. The official correspondence of the mission
is inviolable; and
4. The diplomatic bag shall not be opened or
detained [Art. 27, VCDR].
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iv. Immunity from Local
Jurisdiction
Persons Entitled
1. Diplomatic agent and family: Diplomatic
agent and members of the family of the
diplomatic agent forming part of his
household, who are not nationals of the
receiving state [Art. 31, VCDR];
2. Administrative and technical staff:
a. As to criminal jurisdiction,
members of the administrative and
technical staff of the diplomatic
mission, as well as members of
their families forming part of their
respective households, who are
not nationals of or permanent
residents in the receiving state;
b. As to civil and administrative
jurisdiction, immunity shall not
extend to acts performed outside
the course of their duties [Art. 37,
VCDR]; and
3. Service staff: Members of the service staff
of the diplomatic mission, who are not
nationals of or permanent residents in the
receiving state, with respect to acts
performed in the course of their duties [Art.
37, VCDR].
Duration of Immunities and Privileges
Immunities and privileges begin from the
moment the person enters the territory of the
receiving state to take up his post or, if already
in its territory, from the moment when his
appointment is notified to the Ministry of
Foreign Affairs.
They come to an end when he:
1. exits the country, or
2. upon expiration of a reasonable period in
which to leave the country [Art. 39, VCDR].
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
Waiver of Immunity from Jurisdiction
In proceedings, whether criminal, civil or
administrative, the waiver must be:
1. made by the sending State itself; and
2. express [Art. 32, VCDR].
State practice indicates that the authority to
exercise the waiver rests with the sovereign
organs, and not the diplomatic agent or official
himself [MAGALLONA].
A diplomatic agent is not obliged to give
evidence as a witness. [Art. 31, VCDR]
(a) Criminal Jurisdiction
Rule : A diplomatic agent enjoys immunity from
criminal jurisdiction of the receiving State [Art.
31, VCDR]. He may not be arrested,
prosecuted, prosecuted or punished for any
offense he may commit, unless his immunity is
waived.
Note: The immunity of a diplomatic agent from
the jurisdiction of the receiving State does not
exempt him from the jurisdiction of the sending
State. [Art. 31(4) VCDR]
(b) Civil and Administrative Jurisdiction
General Rule: An agent shall enjoy immunity
from its civil and administrative jurisdiction.
[Art. 31, VCDR]
Exceptions
1. A real action relating to private immovable
property situated in the territory of the
receiving State, unless he holds it on behalf
of the sending State for the purposes of the
mission;
2. An action relating to succession in which
the diplomatic agent is involved as
executor, administrator, heir or legatee as
a private person and not on behalf of the
sending State;
3. An action relating to any professional or
commercial activity exercised by the
diplomatic agent in the receiving State
outside his official functions. [Art. 31,
VCDR]
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No measures of execution may be taken in
respect of a diplomatic agent except in the
cases where he comes under the above
exceptions and provided that the measures
concerned can be taken without infringing the
inviolability of his person or of his residence.
[Art. 31, VCDR]
2. Consular Relations
Definition: These are the relations which come
into existence between two States by reason of
the fact that consular functions are exercised
by authorities of one State in the territory of the
other [MAGALLONA].
Relevant Convention: Vienna Convention on
Consular Relations (VCCR)
Consular relations are established by mutual
consent. The consent given to the
establishment of diplomatic relations between
two States implies consent to the
establishment of consular relations, unless
otherwise stated but the severance of
diplomatic relations shall not ipso facto involve
the severance of consular relations. [Art. 2,
VCCR].
a. Consuls
Definition: Consuls are state agents residing
abroad with certain functions (see b.)
Ranks:
● Consul general – heads several consular
districts, or one exceptionally large
consular district;
● Consul – in charge of a small district or
town or port;
● Vice Consul – assists the consul;
● Consular agent – one entrusted with the
performance of certain functions by the
consul.
b. Functions and Duties
The functions and duties of Consuls include but
are not limited to the ff:
(a) protecting in the receiving State the
interests of the sending State and of its
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
nationals, both individuals and bodies
corporate, within the limits permitted by
international law;
(b) issuing passports and travel
documents to nationals of the sending
State, and visas or appropriate
documents to persons wishing to travel
to the sending State;
(c) helping and assisting nationals, both
individuals and bodies corporate, of the
sending State;
(d) acting as notary and civil registrar and
in capacities of a similar kind, and
performing certain functions of an
administrative nature, provided that
there is nothing contrary thereto in the
laws and regulations of the receiving
State;
(e) safeguarding the interests of nationals,
both individuals and bodies corporate,
of the sending States in cases of
succession mortis causa in the territory
of the receiving State, in accordance
with the laws and regulations of the
receiving State;
(f) performing any other functions
entrusted to a consular post by the
sending State which are not prohibited
by the laws and regulations of the
receiving State or to which no objection
is taken by the receiving State or which
are referred to in the international
agreements in force between the
sending State and the receiving State.
[Art. 5, VCCR]
c. Right to Consular Assistance
Diplomatic Protection
Right of a state to claim rights for its nationals
abroad.
States have a positive duty to accord consular
privileges to sending states whose nationals
have run into trouble in the jurisdiction of the
receiving states [Avena Case (ICJ, 2004) and
LaGrand Case (ICJ, 2001)].
See Art. 36(1), VCCR, which gives consular
officers the right to communicate with nationals
of the sending state and to have access to
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them, and give consular officers the right to visit
a national of the sending state who is in prison,
custody or detention [LaGrand Case (ICJ,
2001)].
However, the VCCR violation does not
automatically result in the partial or total
annulment of conviction or sentence [Avena
Case (ICJ, 2004)].
d. Immunities and Privileges
i. Personal Inviolability
Rule
(a) They are not liable to arrest or detention
pending trial, except in case of a grave
crime and pursuant to a decision of a
competent judicial authority; and
(b) shall not be committed to prison nor be
subject to any other form of restriction to
personal freedom, except in the case of
grave crime pursuant to a decision of
competent judicial authority, or in the
execution of a final judicial decision
(c) If criminal proceedings are instituted
against a consular officer, he must appear
before the competent authorities but the
proceedings shall be conducted with the
respect due to him by reason of his official
position and, except in par. 1, in a manner
which will hamper the exercise of consular
functions as little as possible.
(d) When, in the circumstances mentioned in
paragraph 1 it has become necessary to
detain a consular officer, the proceedings
against him shall be instituted with the
minimum of delay. [Art. 41, VCCR].
ii. Inviolability of Consular
Premises
The term “consular premises” refers to “the
buildings or parts of buildings and the land
ancillary thereto, irrespective of ownership,
used exclusively for the purposes of consular
post” [Art. 1(j), VCCR].
Rule
(a) The authorities of the receiving State shall
not enter that part of the consular premises
which is used exclusively for the purpose of
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
the work of the consular post except with
the consent of the head of the consular
post or of his designee or of the head of the
diplomatic mission of the sending State.
The consent of the head of the consular
post may, however, be assumed in case of
fire or other disaster requiring prompt
protective action.
(b) The receiving State is under a special duty
to take all appropriate steps to protect the
consular premises against any intrusion or
damage and to prevent any disturbance of
the peace of the consular post or
impairment of its dignity.
(c) The consular premises, their furnishings,
the property of the consular post and its
means of transport shall be immune from
any form of requisition for purposes of
national defense or public utility. If
expropriation is necessary for such
purposes, all possible steps shall be taken
to avoid impeding the performance of
consular functions, and prompt, adequate
and effective compensation shall be paid to
the sending State. [Art. 31, VCDR]
iii. Inviolability of Archives
The inviolability of archives is unconditional.
They shall be inviolable at all times and
wherever they may be [Art. 33, VCCR].
The consular archives and documents of a
consular post headed by an honorary consular
officer shall be inviolable at all times and
wherever they may be, provided that they are
kept separate from other papers and
documents and, in particular, from the private
correspondence of the head of a consular post
and of any person working with him, and from
the materials, books or documents relating to
their profession or trade. [Art. 66, VCCR]
iv. Freedom of Communication
Rule
(a) The receiving State shall permit and
protect freedom of communication on the
part of the consular post for all official
purposes.
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(b) In communicating with the Government,
the diplomatic missions and other consular
posts, wherever situated, of the sending
State, the consular post may employ all
appropriate means, including diplomatic or
consular couriers, diplomatic or consular
bags and messages in code or cipher.
However, the consular post
(c) The official correspondence of the consular
post shall be inviolable. Official
correspondence means all
correspondence relating to the consular
post and its functions. [Art. 35, VCCR]
The Consular Bag
General Rule
The consular bag shall neither be opened nor
detained. [Art. 35 VCCR]
Exception
The receiving state may, however, request that
the consular bag be opened if the authorities
have serious reasons to believe that the bag
contains something other than
correspondence, documents or articles
intended exclusively for official use. If the
request is accepted, the bag may be opened in
the presence of the authorized representative
of the sending state; If the request is refused,
the bag shall be returned to its place of origin
[Art. 35, VCCR].
v. Immunity from Local
Jurisdiction
General rule: Consular officers and
employees are entitled to immunity from the
jurisdiction of administrative and judicial
authorities in the receiving state. [Art. 43,
VCCR]
Exceptions
This immunity shall not apply to a civil action
either:
1. Arising out of a contract by a consular
officer or employee, which he did not
conclude expressly or impliedly as an
agent of the sending state; or
2. By a third party for damage arising from an
accident caused by vehicle, vessel or
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
aircraft in the receiving state [Art. 43,
VCCR].
Liability to Give Evidence
1. Members of a consular post may be called
upon to attend as witnesses in the course
of judicial or administrative proceedings.
a. A consular employee or a member
of the service staff shall not, except
in the cases mentioned in
paragraph 3, decline to give
evidence.
b. If a consular officer should decline
to do so, no coercive measure or
penalty may be applied to him.
2. The authority requiring the evidence of a
consular officer shall avoid interference
with the performance of his functions. It
may, when possible, take such evidence at
his residence or at the consular post or
accept a statement from him in writing.
3. Members of a consular post are under no
obligation to give evidence concerning
matters connected with the exercise of
their functions or to produce official
correspondence and documents relating
thereto. They are also entitled to decline to
give evidence as expert witnesses with
regard to the law of the sending State. [Art.
44, VCCR]
G. NATIONALITY AND
STATELESSNESS
NATIONALITY
Definition
Nationality is the tie that binds an individual to
his state, from which he can claim protection
and whose laws he is obliged to obey. It is
membership in a political community with all its
concomitant rights and obligations.
Importance
Nationality is important in international law
because an individual ordinarily can participate
in international relations only through the
instrumentality of the state to which he
belongs, as when his government asserts a
claim on his behalf for injuries suffered by him
in a foreign jurisdiction. This remedy would not
be available to a stateless individual.
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Acquisition of Nationality
1. Birth
a. Jus Sanguinis: where a person
acquires the nationality of the state
where he is born.
b. Jus Soli: where a person acquires
the nationality of his parents.
2. Naturalization
Naturalization is a process by which a person
acquires a nationality after birth by any means
provided by the law [COQUIA AND AGUILING-
PANGALANGAN]
There are 2 types of naturalization
a. Direct:
● By individual proceedings, usually
judicial, under general naturalization
laws;
● By special act of legislature;
● By collective change of nationality as a
result of cession or subrogation
(naturalization en masse);
● By adoption (in some cases)
b. Derivative, usually subject to stringent
restrictions and conditions:
● On the wife of the naturalized husband;
● On the minor children of the naturalized
parent;
● On the alien upon marriage to a
national.
CONCEPTS ON NATIONALITY
Multiple Nationality
Multiple nationality is acquired as the result of
the concurrent application to an individual of
the conflicting municipal laws of two or more
states claiming him as their national.
Example: Dual Citizenship in Philippine Law,
such as when a child is born in the United
States of Filipino parents would be an
American national under jus soli and a Filipino
national under jus sanguinis, or when a Filipino
citizen marries a foreigner and acquires
derivative citizenship but does not lose Filipino
citizenship unless by act or omission they are
deemed to have renounced it [See Sec. 4, Art.
IV of the 1987 Constitution].
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW

Indelible Allegiance nationality. [Art. 2, Hague Convention of

An individual may be compelled to retain his 1930]
original nationality notwithstanding that he has
already renounced or forfeited it under the laws 2. Loss of Nationality
of a second state whose nationality he has a. Voluntary
acquired [NACHURA]. i. Renunciation which may be
express or implied
Principle of Effective Nationality ii. Request for release
Within a third state, a person having more than b. Involuntary
one nationality shall be treated as if he has only i. Forfeiture as the result of some
one. The third state shall recognize disqualification or prohibited act.
conclusively in its territory either the nationality ii. Substitution of one nationality for
of the country in which he is habitually and another.
principally present or the nationality of the
country with which he appears to be in fact STATELESSNESS
most closely connected. The courts of third Definition
states resolve the conflict by having recourse For the purpose of this Convention, the term
to international criteria, and their prevailing “stateless person” means a person who is not
tendency is to prefer the real and effective considered as a national by any State under
nationality [Nottebohm Case (ICJ, 1955)] the operation of its law. [Art. 1, Convention
Relating to the Status of Stateless Persons
Nationality in Philippine Law (1960)]
The Philippine Constitution applies the jus
sanguinis principle which means the rule of Statelessness is the condition or status of an
descent or blood. [U.S. v. Wong Kim Art, 169 individual who is born without any nationality or
U.S. 649 (1898)] who loses his nationality without retaining or
acquiring another [CRUZ].
Types of Citizens Under Article IV of the
1987 Philippine Constitution Rights of A Stateless Person
(1) Those who are citizens of the Philippines at 1. The right to religion and religious
the time of the adoption of this Constitution; instruction
(2) Those whose fathers or mothers are 2. Access to courts
citizens of the Philippines; 3. Elementary education
(3) Those born before January 17, 1973, of 4. Public relief and assistance and rationing
Filipino mothers, who elect Philippine of products in short supply
citizenship upon reaching the age of majority; 5. Treatment no less favorable than that
and accorded to aliens
(4) Those who are naturalized in accordance 6. Right of Association
with law.
Note: That the Convention Relating to the
Rules on Nationality Status of Stateless persons does not in any
1. Determination of Nationality - Any way enumerate an exclusive listing of rights
question as to whether a person possesses granted to stateless persons.
the nationality of a particular state shall be
determined in accordance with the law of Right to Nationality under the Universal
that state. These laws shall be recognized Declaration on Human Rights (UDHR)
by other states so long as they are 1. Everyone has the right to a nationality.
consistent with international conventions, 2. No one shall be arbitrarily deprived of his
international customs and the principles of nationality nor denied the right to change
law generally recognized with regard to his nationality [Art. 15]

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 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
Right to Nationality under the International
Convention on Civil and Political Rights
(ICCPR)
1. Every child shall have, without any
discrimination as to race, colour, sex,
language, religion, national or social origin,
property or birth, the right, to such
measures of protection as are required by
his status as a minor, on the part of his
family, society and the State.
2. Every child shall be registered immediately
after birth and shall have a name.
3. Every child has the right to acquire a
nationality [Art. 24].
Nationality of Foundlings
Definition
A deserted or abandoned infant or child whose
parents, guardian or relatives are unknown; or
a child committed to an orphanage or
charitable or similar institution with unknown
facts of birth and parentage and registered in
the Civil Register as a "foundling” [A.M. No. 02-
6-02-SC, Resolution Approving The Proposed
Rule on Adoption (Domestic and Inter-
Country)]
The common thread of the UDHR, UNCRC
and ICCPR is to obligate the Philippines to
grant nationality from birth and ensure that
no child is stateless. This grant of nationality
must be at the time of birth. These
circumstances, including the practice of jus
sanguinis countries, show that it is a generally
accepted principle of international law to
presume foundlings as having been born of
nationals of the country in which the foundling
is found [Poe-Llamanzares v. COMELEC, G.R.
No. 221697 (2016)].
H. GENERAL PRINCIPLES
OF TREATY LAW
Note:
● Please also See "Section C. Sources of
law" above for a discussion on Treaty Law
● Vienna Convention on the Law of Treaties
is referred to as “VCLT:
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Definition of Treaty
A treaty, under international Law is:
a. An international agreement;
b. concluded between states;
c. in written form;
d. governed by international law;
e. whether embodied in a single
instrument or in two or more related
instruments; and
f. whatever its particular designation
[Art. 2(1)(a), VCLT].
However, the definitions under the VCLT are
“without prejudice to the use of those terms or
to the meanings which may be given to them in
the internal law of any State” [Art. 2(2), VCLT].
Requisites for a Valid Treaty
1) Treaty Making Capacity (refers to states
which have international legal personality,
see Section D above on subjects of
international law and Article 6 of VCLT
specifically provides that states have the
capacity to enter into treaties)
2) Competence of the representative giving
consent
3) Consent freely given
4) Object and Subject Matter
5) Ratification
In addition to the constitutional requirement,
ratification is likewise necessary under
international law when:
1. The treaty provides for consent to be
expressed by means of ratification;
2. It is otherwise established that the
negotiating states agreed that ratification
should be required;
3. The representative of the state has signed
the treaty subject to ratification; or
4. The intention of the State to sign the treaty
subject to ratification appears from the full
powers of its representative, or was
expressed during the negotiation [Art.
14(1), VCLT].
Treaty-Making Process
1. Authorization. Two modes where a
person is considered as representing their
state: (a) with full powers and (b) without
full powers
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
i. A person is considered as
representing a State in the treaty-
making process if he produces
appropriate full powers. [Art. 7 (1(a,b)),
VCLT].
ii. In virtue of their functions and without
having to produce full powers, the
following are considered as
representing their State:
a. Heads of State, Heads of
Government and Ministers for
Foreign Affairs, for the purpose
of performing all acts relating to
the conclusion of a treaty;
b. Heads of diplomatic missions,
for the purpose of adopting the
text of a treaty between the
accrediting State and the State
to which they are accredited;
c. Representatives accredited by
States to an international
conference or to an
international organization or
one of its organs, for the
purpose of adopting the text of
a treaty in that conference,
organization or organ. [Art. 7 (2
(a-c)), VCLT]
2. Negotiation. The state representatives
discuss the terms and provisions of the
treaty.
3. Adoption. When the form and content
have been settled by the negotiating
states, the treaty is adopted. This is only
preparatory to (1) the authentication of the
text of the treaty, and (2) the signing thereof
[Art. 9, VCLT].
4. Authentication. A definitive text of the
treaty is established as the correct and
authentic one [Art. 10, VCLT].
5. Expression of consent. The state parties
express their consent to be bound by the
terms of the treaty. The modes of such
expression are by (i) signature, (ii)
exchange of instruments constituting a
treaty, (iii) ratification, (iv) acceptance, (v)
approval or (vi) accession, or (vii) by any
other means if so agreed. [Art. 11, VCLT]
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Note: See Articles 12-17 of VCLT for in
detail explanations of each manner of
expressing consent
6. Registration. The treaty is then registered
with the Secretariat of the United Nations
[Art. 80, VCLT]. Otherwise, the treaty may
not be invoked before any UN organ [Art.
102(2), UN Charter], including the ICJ.
Important Concepts in Treaty law
1. Pacta Sunt Servanda
Every treaty in force is binding upon the parties
to it and must be performed by them in good
faith [Art. 26, VCLT].
Note: This is considered as customary
international law and applies to all obligations
contained in a treaty, whether or not the state
is a party to the VCLT. [Gabcikovo-Nagymaros
Project (ICJ, 1997)]
2. Reservations
A reservation is a unilateral statement,
however phrased or named, made by a State,
when signing, ratifying, accepting, approving or
acceding to a treaty, whereby it purports to
exclude or to modify the legal effect of certain
provisions of the treaty in their application to
that State [Art. 2 (d), VCLT]
Exceptions: A reservation shall not operate to
modify or exclude the provisions of a treaty:
a. Where the treaty expressly prohibits
reservations in general;
b. Where the treaty expressly prohibits that
specific reservation being made; or
c. Where the reservation is incompatible with
the object and purpose of the treaty [Art.
19, VCLT; Reservation to the Genocide
Conventions Advisory Opinion (ICJ,
1951)].
To be considered binding on the other
contracting state to the treaty, that State must
accept the reservation. A reservation is
presumed to be accepted. A reservation is
deemed unaccepted when another contracting
state objects. [See Art. 20, VCLT]
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
3. Amendment and Modification of
Treaties
General rule for multilateral treaties:
Consent of all the parties is required.
Exception: If the treaty itself so allows, two
states may modify a provision only insofar as
their relationship inter se.
4. Non-Binding on third states; exceptions
A treaty does not create either obligations or
rights for a third State without its consent [Art.
34, VCLT].
Exceptions:
a. When the third party accepts a provision
establishing an obligation for that third
party. [Art. 35, VCLT]
b. When the third party accepts a right
provided for and exercises such right in
accordance with the conditions established
in the treaty. [Art. 36, VCLT]
5. Non-retroactivity
Unless a different intention appears from the
treaty or is otherwise established, its provisions
do not bind a party in relation to any act or fact
which took place or any situation which ceased
to exist before the date of the entry into force of
the treaty with respect to that party [Art. 28,
VCLT].
Invalid Treaties
A treaty is invalid:
a. If consent was given in violation of
provisions of internal law regarding
competence to conclude treaties,
provided that:
1. The violation is manifest; and
2. It concerned a rule of fundamental
importance [Art. 46, VCLT].
b. If the representative consented in violation
of specific restrictions on authority,
provided the restriction was notified to the
other negotiating states prior to the
representative expressing such consent
[Art. 47, VCLT];
Page 415 of 439
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c. Error of fact or situation, provided that:
1. Such formed an essential basis of a
state’s consent to be bound;
2. The State did not contribute by its own
conduct to the error; and
3. The circumstances were not such as to
put that State on notice of a possible
error [Art. 48, VCLT].
d. If consent was obtained through
fraudulent conduct of another negotiating
state [Art. 49, VCLT];
e. If the representative of a state was
corrupted to consent by another
negotiating state [Art. 50, VCLT];
f. If the representative of a State was
coerced through acts or threats directed
against him [Art. 51, VCLT];
g. If the conclusion of a treaty is procured by
threat or use of force [Art. 52, VCLT];
h. If it violates a jus cogens norm of
international law [Art. 53, VCLT].
Grounds for Termination of the Treaty
a. Termination of the treaty or withdrawal of a
party in accordance with the provisions of
the treaty or by consent of all the parties
[Art. 54, VCLT]
b. Denunciation or desistance by a party in
accordance with the provisions of the
treaty, or if the treaty does not so provide:
1. The parties intended to admit the
possibility of denunciation or
withdrawal; or
2. A right of denunciation or withdrawal
may be implied from the nature of the
treaty [Art. 56, VCLT].
c. Conclusion of a subsequent inconsistent
treaty [Art. 59, VCLT];
d. Material breach or Termination or
Suspension of a Treaty as a Consequence
of its Breach [Art. 60, VCLT] Either:
1. A repudiation of the treaty not
sanctioned by the present Convention;
or
2. The violation of a provision essential to
the accomplishment of the object or
purpose of the treaty. [Art. 60 (3),
VCLT]
e. Supervening Impossibility of Performance
[Art. 61, VCLT]
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
General Rule: The impossibility results
from the permanent disappearance or
destruction of an object indispensable for
the execution of the treaty. If the
impossibility is temporary, it may be
invoked only as a ground for suspending
the operation of the treaty
Exception: If the impossibility is the result
of a breach by that party either of an
obligation under the treaty or of any other
international obligation owed to any other
party to the treaty.
f. Fundamental Change of Circumstances
[Art. 62, VCLT] otherwise known as rebus
sic stantibus
The doctrine of rebus sic stantibus is a
principle in customary international law
providing that where there has been a
fundamental change of circumstances
since an agreement was concluded, a
party to that agreement may withdraw from
or terminate it. Article 62 of the VCLT is
considered as a codification of customary
international law [(Gabcikovo-Nagymaros
Project (ICJ, 1997)]
Requisites [Art. 62 (1), VCLT]:
1. The existence of those circumstances
constituted an essential basis of the
consent of the parties to be bound by
the treaty; and
2. The effect of the change is radically to
transform the extent of obligations still
to be performed under the treaty
3. The change of circumstances was not
foreseen.
When Fundamental Change of
Circumstances cannot be invoked (Art.
62 (2), VCLT):
1. If the treaty establishes a boundary; or
2. If the fundamental change is the result
of a breach by the party invoking it
either of an obligation under the treaty
or of any other international obligation
owed to any other party to the treaty.
Page 416 of 439
POLITICAL LAW
g. Severance of Consular or Diplomatic
Relations if the relations were
indispensable for the application of the
treaty [Art. 63, VCLT]
h. Emergence of a new peremptory norm of
general international law (Jus Cogens) [Art.
64, VCLT]
Treaties under Philippine Law
Note: see also “B. Relationship between
International law and Philippine Domestic Law”
above
Philippine law makes a distinction between
treaties and executive agreements. Both are
equally binding, but treaties require the
concurrence of the Senate to be effective,
while executive agreements do not.
Under international law, there is no difference
between treaties and executive agreements in
terms of their binding effects on the contracting
states concerned, as long as the negotiating
functionaries have remained within their
powers. [Bayan Muna v. Romulo, G.R. No.
159618, 2011]
Treaties have to be transformed in order to be
part of Philippine law. A treaty is “transformed”
when it is ratified by the Senate [Sec. 21, Art.
VII, 1987 Constitution]. After ratification, a
treaty shall be deemed as if legislated by our
legislature.
The Department of Foreign Affairs has the
power to determine whether an international
agreement is a treaty or an executive
agreement [Sec. 9, E.O. 459].
Executive Agreements differentiated from
Treaties
TREATIES EXECUTIVE
AGREEMENT
S
As to Political Transitory
Subject issues; effectivity;
Matte Changes in
national Adjusts details
policy; to carry out
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW

well
Involves established The fact that international law has been
agreements national made part of the law of the land does not
of a policies and pertain to or imply the primacy of
permanent traditions; international law over national or municipal
character law in the municipal sphere.
Temporary;
The doctrine of incorporation, as applied in
Implements most countries, decrees that rules of
treaties, international law are given equal standing with,
statutes, but are not superior to, national legislative
policies enactments. Accordingly, the principle lex
As to Requires Does not posterior derogat priori takes effect [and] a
Ratificatio ratification require Senate treaty may repeal a statute and a statute may
n by two- Concurrence repeal a treaty.
thirds (2/3)
of the In states where the Constitution is the highest
Senate law of the land, such as the Republic of the
[Sec. 21, Philippines, both statutes and treaties may be
Art. VII, invalidated if they are in conflict with the
1987 constitution [Secretary of Justice v. Lantion,
Constitution G.R. No. 139465 (2000)].
]
As to Can repeal Cannot amend I. DOCTRINE OF STATE
Effect on a statute or repeal a
Municipal and prior law and RESPONSIBILITY
Law can be cannot prevail
repealed by over a General Principles
a subsequent la Relevant Text: Articles on State Responsibility
statute (“ASR”)

When there is Conflict between a Treaty
and Municipal Law
The doctrine of incorporation is applied
whenever municipal tribunals are confronted
with situations in which there appears to be a
conflict between a rule of international law and
the provisions of the constitution or statute of
the local state. Efforts must be done to give
effect to both since it is to be presumed that
municipal law was enacted with proper regard
for the generally accepted principles of
international law in observance of the
Incorporation Clause.
In a situation, however, where the conflict is
irreconcilable and a choice has to be made
between a rule of international law and
municipal law, jurisprudence dictates that
municipal law should be upheld by the
municipal courts.
Every internationally wrongful act of a state
entails the international responsibility of that
State [Art. 1, ASR].
Elements of an Internationally Wrongful Act:
There is an internationally wrongful act of a
state when the conduct consisting of an action
or omission:
a. Is attributable to the State under
international law; and
b. Constitutes a breach of an international
obligation of a State [Art. 2, ASR].
The characterization of an act of a state as
internationally wrongful is governed by
international law. Such characterization is not
affected by the characterization of the same act
as lawful by internal law [Art. 4, ASR].
Theory of Objective or Strict Liability

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 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
With respect to state responsibility, the theory
provides that fault is unnecessary for State
responsibility to be incurred.
ATTRIBUTION
Attribution or imputability is a legal construct
whereby an internationally unlawful conduct of
a State organ acting in that capacity is
regarded as the conduct of the State itself,
making that State responsible for it as an
internationally wrongful act.
It proceeds from the theory that as an abstract
entity, the State can physically act only through
individuals or groups of individuals performing
"acts of the State" on its behalf (Differences
Relating to Immunity from Legal Processes of
a Special Rapporteur of the Commission of
Human Rights (38 International Legal Materials
873. 1999]).
a. Conduct of organs of a state [Article 4,
ASR]
The conduct of any State organ shall be
considered an act of that State whether the
organ exercises legislative, executive, judicial
or any other functions, whatever position it
holds in the organization of the State.
An organ includes any person or entity which
has that status in accordance with the internal
law of the State.
b. Conduct of persons or entities
exercising elements of governmental
authority [Article 5, ASR]
The conduct of a person or entity (not falling
under a) but is empowered by the law of that
State to exercise elements of the governmental
authority shall be considered an act of the
State, provided the person or entity is acting in
that capacity.
c. Conduct of organs placed at the
disposal of a State by another State
[Article 6, ASR]
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An act of the former State under international
law if the organ is acting in the exercise of
elements of the governmental authority of the
State at whose disposal it is placed.
d. Excess of authority or contravention of
instructions [Article 7, ASR]
If the organ, person or entity acts in that
capacity, even if it exceeds its authority or
contravenes instructions. Unauthorized or Ultra
Vires acts.
e. Conduct directed or controlled by a
State [Article 8, ASR]
If the person or group of persons is in fact
acting on the instructions of, or under the
direction or control of, that State in carrying out
the conduct.
Effective Control
Under the law on state responsibility, a State is
responsible only for the acts of its organs and
over non-state actors over which it exercised
effective control [Nicaragua case (ICJ,
1986)]. This means that it should have given
instructions or provided the direction pursuant
to which the perpetrators of the wrongful act
acted.
Overall Control
In the Application of the Convention on the
Prevention and Punishment of the Crime of
Genocide Case (ICJ, 2007), the ICJ ruled that
the “over-all control test” was only relevant in
so far as the question of characterization of the
Yugoslav conflict as an international armed
conflict, or whether or not the conflict has been
internationalized; it is not relevant to the task of
determining whether a state is responsible for
the acts of certain non-state organs involved in
that same international armed conflict.
Effective Control Overall Control
Control must have Control must have
been exercised in gone “beyond the
respect to each mere financing and
individual act or equipping of such
omission which forces” and must
have “participation in
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW

constitutes the the planning and This is without prejudice to the attribution to a
breach. supervision of State of any conduct, however related to that of
The private persons military operations.” the movement concerned, which is to be
or groups must have considered an act of that State by virtue of
been mere agents of articles 4 to 9.
the state who were
told what had to be h. Conduct acknowledged and adopted by
done at all stages. a State as its own [Article 11, ASR]
This provides a This presents a
higher threshold for lower threshold for Conduct shall be considered an act of that
attribution. attribution. State if and to the extent that the State
A general situation of There need not be a acknowledges and adopts the conduct in
dependence and showing of actual or question as its own.
support would thus direct control.
be insufficient to CIRCUMSTANCES PRECLUDING
justify attribution. WRONGFULNESS (Defenses)
This refers to the This refers to the
matter of state matter of individual Although a State which fails to act in conformity
responsibility. criminal with an international obligation will typically be
responsibility and subject to international responsibility for the
the application of the wrongful act, the State may be excused from
rules of international performance of an international obligation
humanitarian law if circumstances precluding wrongfulness
[e.g. Prosecutor v. are present.
Tadic (ICTY Appeals
Chamber, 1995)]. a. Consent [Article 20, ASR]

f. Conduct carried out in the absence or
default of the official authorities [Article
9, ASR]
If the person or group of persons exercise
elements of the governmental authority in the
absence or default of the official authorities and
in circumstances such as to call for the
exercise of those elements of authority.
g. Conduct of an insurrectional or other
movement [Article 10, ASR]
The conduct of an insurrectional movement
which becomes the new Government of a State
shall be considered an act of that State.
The conduct of a movement, insurrectional or
other, which succeeds in establishing a new
State in part of the territory of a pre-existing
State or in a territory under its administration
shall be considered an act of the new State.
Valid consent by a State to the commission of
a given act by another State precludes the
wrongfulness of that act in relation to the former
State to the extent that the act remains within
the limits of that consent.
b. Self-Defense [Article 21, ASR]
If the act constitutes a lawful measure of self-
defense taken in conformity with the Charter of
the United Nations.
c. Countermeasures [Article 22, ASR]
If and to the extent that the act constitutes a
countermeasure taken against the latter State
in accordance with the ASR.
d. Force Majeure [Article 23, ASR]
General Rule: If the act is due to force
majeure, that is the occurrence of an irresistible
force or of an unforeseen event, beyond the
control of the State, making it materially

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 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
impossible in the circumstances to perform the
obligation.
Exception
The above rule does not apply if:
1) The situation of force majeure is due, either
alone or in combination with other factors,
to the conduct of the State invoking it; or
2) The State has assumed the risk of that
situation occurring.
e. Distress [Article 24, ASR]
General Rule: If the author of the act in
question has no other reasonable way, in a
situation of distress, of saving the author’s
life or the lives of other persons entrusted
to the author’s care.
Exceptions
i. The situation of distress is due,
either alone or in combination with
other factors, to the conduct of the
State invoking it; or
ii. The act in question is likely to
create a comparable or greater
peril.
f. Necessity [Article 25, ASR]
Elements
1. It is the only way for the State to
safeguard an essential interest against
a grave and imminent peril; and
2. It does not seriously impair an essential
interest of the State or States towards
which the obligation exists, or of the
international community as a whole.
Cannot be invoked if:
1. the international obligation in question
excludes the possibility of invoking
necessity; or
2. the State has contributed to the
situation of necessity.
Other Principles
The responsible State may not rely on the
provisions of its internal law as justification for
failure to comply with its obligations under this
part. [Article 32, ASR]
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POLITICAL LAW
None of the circumstances listed from a) to f)
precludes the wrongfulness of any act of a
State which is not in conformity with an
obligation arising under a peremptory norm of
general international law. [Article 26, ASR]
CONSEQUENCES OF AN
INTERNATIONALLY WRONGFUL ACT
The international responsibility of a State which
is entailed by an internationally wrongful act
involves legal consequences. [Article 28, ASR]
The legal consequences of an internationally
wrongful act under this part do not affect the
continued duty of the responsible State to
perform the obligation breached. [Article 29,
ASR]
a. Cessation and non-repetition
The State responsible for the wrongful act is
under the obligation to:
1. Cease the act if it is still continuing; and
2. Offer appropriate assurances and
guarantees of non-repetition, if
circumstances so require [Art. 30, ASR].
b. Reparation
The responsible State is under an obligation to
make full reparation for the injury caused by the
internationally wrongful act.
Injury includes any damage, whether material
or moral, caused by the internationally wrongful
act of a State.
“Full reparation” means that the responsible
State must endeavor to wipe out all the
consequences of the illegal act and reestablish
the situation which would, in all probability,
have existed if that act had not been committed
[Factory at Chorzów (PCIJ, 1928)]. This may
be achieved by one form of reparation only or
by a combination of the different forms [ASR
Draft Articles].
“Material” Damage: refers to damage to
property or other interests of the State and its
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
nationals which is assessable in financial
terms.
“Moral” Damage: includes such items as
individual pain and suffering, loss of loved ones
or personal affront associated with an intrusion
on one’s home or private life. (ASR Draft
Articles)
FORMS
Full reparation for the injury caused by the
internationally wrongful act shall take the form
of restitution, compensation and satisfaction,
either singly or in combination. (Article 34,
ASR)
1. Restitution [Article 35, ASR]
A State responsible for an internationally
wrongful act is under an obligation to make
restitution, that is, to re-establish the situation
which existed before the wrongful act was
committed, provided and to the extent that
restitution:
(a) is not materially impossible;
(b) does not involve a burden out of all
proportion to the benefit deriving fro
restitution instead of compensation.
Restitution consists only in re-establishing
the status quo ante, i.e. the situation that
existed prior to the occurrence of the wrongful
act, and does not require a hypothetical inquiry
into what the situation would have been if the
wrongful act had not been committed.
Restitution in this narrow sense may therefore
have to be completed by compensation to
ensure full reparation for the damage caused
[ASR Draft Articles].
2. Compensation [Article 36, ASR]
The State responsible is under an obligation to
compensate for the damage caused thereby,
insofar as such damage is not made good by
restitution.
Compensation corresponds to the financially
assessable damage suffered by the injured
State or its nationals. It is not concerned to
Page 421 of 439
POLITICAL LAW
punish the responsible State, nor does
compensation have an expressive or
exemplary character [ASR Draft Articles].
3. Satisfaction [Article 37, ASR]
The State responsible is under an obligation to
give satisfaction for the injury caused by that
act insofar as it cannot be made good by
restitution or compensation.
Satisfaction may consist in an
acknowledgement of the breach, an
expression of regret, a
formal apology or another appropriate
modality.
Satisfaction shall not be out of proportion to the
injury and may not take a form humiliating to
the responsible State.
Satisfaction is of exceptional character. It is
only in cases where restitution or
compensation have not provided full reparation
that satisfaction may be required [ASR Draft
Articles].
It is the remedy for injuries not financially
assessable. These injuries are frequently of a
symbolic character, arising from the very fact of
the breach of the obligation, irrespective of its
material consequences for the State
concerned [Id.].
Other Principles
Interest on any principal sum due under this
chapter shall be payable when necessary in
order to ensure full reparation. The interest rate
and mode of calculation shall be set so as to
achieve that result. [Article 38, ASR]
Contribution to the Injury
In the determination of reparation, account
shall be taken of the contribution to the injury
by willful or negligent action or omission of the
injured State or any person or entity in relation
to whom reparation is sought. [Article 39, ASR]
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
J. REFUGEES
General Principles
Reference Treaty: The 1951 Convention
Relating to the Status of Refugees (“1951
Convention”), the 1967 Protocol Relating to the
Status of Refugees (“1967 Protocol”).
Definition
A person outside the country of his
nationality owing to a well-founded fear of
being persecuted for reasons of race, religion,
nationality, membership of a particular social
group or political opinion, is and is unable or,
owing to such fear, is unwilling to avail himself
of the protection of that country; or who, not
having a nationality and being outside the
country of his former habitual residence as a
result of such events, is unable or, owing to
such fear, is unwilling to return to it. [Article 1A
(1), 1951 Convention].
The term “the country of his nationality” shall
mean each of the countries of which he is a
national, and a person shall not be deemed to
be lacking the protection of the country of his
nationality if, without any valid reason based on
well-founded fear, he has not availed himself of
the protection of one of the countries of which
he is a national.
Refugees v. Internally Displaced Persons
Refugees are people as defined above while
internally displaced persons are those who
have been forced to flee their homes, suddenly
or unexpectedly in large numbers as a result of
armed conflict, internal strife, systematic
violation of human rights, or natural or man-
made disaster, and, who are within their
territory of their country. (Analytical Report of
the United Nations’ Secretary-General on
Internally Displaced Persons, February 14,
1992)
The convention will not apply to refugees if:
a. He has voluntarily re-availed himself of the
protection of the country of his nationality;
b. Having lost his nationality, he has
voluntarily re-acquired it; or
Page 422 of 439
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c. He has acquired a new nationality, and
enjoys the protection of the country of his
new nationality; or
d. He has voluntarily re-established himself in
the country which he left or outside which
he remained owing to fear of persecution;
or
e. He can no longer continue to refuse to avail
himself of the protection of the country of
his nationality because the circumstances
in connection with which he has been
recognized as a refugee have ceased to
exist;
f. Being a person who has no nationality he
is, able to return to the country of his former
habitual residence [Article 1, C, 1951
Convention]
General Obligations of Refugees
Every refugee has duties to the country in
which he finds himself, which require in
particular that he conform to its laws and
regulations as well as to measures taken for
the maintenance of public order. [Article 2,
1951 Convention]
Non-Discrimination
States shall apply the provisions of this
Convention to refugees without discrimination
as to race, religion or country of origin. [Article
3, 1951 Convention]
Personal Status
The personal status of a refugee shall be
governed by the law of the country of his
domicile or, if he has no domicile, by the law of
the country of his residence. [Article 12, 1951
Convention]
Rights previously acquired by a refugee and
dependent on personal status, more
particularly rights attaching to marriage, shall
be respected by a Contracting State, subject to
compliance, if this be necessary, with the
formalities required by the law of that State,
provided that the right in question is one which
would have been recognized by the law of that
State had he not become a refugee. [Article 12,
1951 Convention]
Rights of a Refugee
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
Among those enumerated in the 1951
Convention are:
1. Non-discrimination of application (for
refugee status) based on race, religion, or
country of origin [Art. 3]
2. To be treated similar to nationals with
respect to the following: Right to Religion
[Art. 4]
a. Right to Religion [Art. 4]
b. Rationing system (when supplies
are short) [Art. 20]
c. Elementary education [Art 22(1)]
d. Public Relief [Art. 23]
e. Labour Legislation and Social
Security [Art. 24(1)]
f. Fiscal Charges [Art. 29]
3. To be accorded the same treatment as an
alien or foreign national with respect to the
following:
a. To have his personal status
respected [Art. 12]
b. To acquire movable and
immovable property [Art. 13]
c. Protection of industrial property
and rights in literacy, artistic, and
scientific works [Art. 14]
d. Right of Association [Art. 15]
e. Access to Courts [Art. 16]
f. Wage-earning employment [Art.
17]
g. Self-employment [Art. 18]
h. To practice liberal profession [Art.
19]
i. Housing [Art. 21]
j. Education other than elementary
[Art. 22(2)]
4. Administrative Assistance [Art. 25]
5. Freedom of movement [Art. 26]
6. To be issued travel documents [Art. 28(1)]
7. Be permitted to transfer their assets [Art.
30(1)]
8. Sympathetic considerations as regards the
following:
a. Extension of benefits similar to
death benefits or social security
[Art. 24(4)]
b. Issuance of travel documents to
refugees who are unable to obtain
a travel document from the country
of their lawful residence [Art. 28(1)]
Page 423 of 439
POLITICAL LAW
c. Permission to transfer assets
necessary for their resettlement in
another country [Art. 30(2)]
9. To not be expelled [Arts. 32 and 33]
10. To not be penalized for illegal entry until
their status in the country is regularized or they
obtain admission into another country [Art. 31]
Principle of Non-Refoulment
General Rule: No State shall expel or return
(“refouler”) a refugee in any manner
whatsoever to the frontiers of territories where
his life or freedom would be threatened on
account of his race, religion, nationality,
membership of a particular social group or
political opinion. [Article 33, 1951 Convention]
Exception: The benefit be claimed by a
refugee whom there are reasonable grounds
for regarding as a danger to the security of the
country in which he is, or who, having been
convicted by a final judgment of a particularly
serious crime, constitutes a danger to the
community of that country. [Article 33, 1951
Convention]
K. TREATMENT OF
ALIENS
The General Rule on Standard of Treatment
Flowing from its right to existence and as an
attribute of sovereignty, no state is under any
obligation to admit aliens. The state can
determine in what cases and under what
conditions it may admit such. Once it admits
aliens, under the international standard
of justice, which calls for compliance with the
ordinary norms of official conduct observed in
civilized jurisdictions, aliens should be
protected by certain minimum standards of
humane protection, however harsh the
municipal laws of a state may be.
Territorial sovereignty involves the exclusive
right to display the activities of a State. This
right has a corollary, a duty: the obligation to
protect within the territory the rights of other
States, in particular, their right to integrity and
inviolability in peace and in war, together with
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
the rights which each State may claim for its
nationals in foreign territory [Island of Las
Palmas Arb. (PCA, 1928)].
However, an alien cannot claim a preferred
position vis-à-vis the national of the state [see
Calvo Clause, infra].
State Responsibility when it comes to
Treatment of Aliens
A state may be held responsible for:
a. An international delinquency;
b. Directly or indirectly imputable to it;
c. Which causes injury to the national of
another state
Liability will attach to the state where its
treatment of the alien falls below the
international standard of justice or where it is
remiss in according him the protection or
redress that is warranted by the circumstances.
The propriety of governmental acts should be
put to the test of international standards. The
treatment of an alien, in order to constitute an
international delinquency, should amount to
an outrage, to bad faith, to willful neglect of
duty, or to an insufficiency of governmental
action so far short of international
standards that every reasonable and
impartial man would readily recognize its
insufficiency [Neer Case (PCIJ, 1926)].
How To enforce the International
Responsibility arising from the
International Delinquency
There must be:
a. Exhaustion of local (refers to the State
where the international delinquency
happened) administrative remedies; and
b. Representation of the alien by his own
state (this refers to the exercise of
diplomatic protection) in the international
claim for damages.
Rules on Diplomatic Protection from the
Draft Articles on Diplomatic Protection
(ADP), 2006:
Definition of Diplomatic Protection [Art. 1,
ADP]
Page 424 of 439
POLITICAL LAW
Diplomatic protection consists of the invocation
by a State, through diplomatic action or other
means of peaceful settlement, of the
responsibility of another State for an injury
caused by an internationally wrongful act of
that State to a natural or legal person that is a
national of the former State with a view to the
implementation of such responsibility.
Who is entitled to exercise Diplomatic
Protection [Art. 3, ADP]
1. The State of nationality
2. Notwithstanding paragraph 1, diplomatic
protection may be exercised by a State in
respect of a person that is not its national
in accordance with draft article 8.
Requirement of exhaustion of local
remedies before presentation of
international claim [Art. 14, ADP]:
1. A State may not present an international
claim in respect of an injury to a national
or other person before the injured
person has exhausted all local
remedies.
2. “Local remedies” means legal remedies
which are open to an injured person before
the judicial or administrative courts or
bodies, whether ordinary or special, of the
State alleged to be responsible for causing
the injury.
3. Local remedies shall be exhausted where
an international claim, or request for a
declaratory judgement related to the claim,
is brought preponderantly on the basis of
an injury to a national or other person.
Exception to requirement of Exhaustion of
Local Remedies [Art. 15, ADP]:
Local remedies do not need to be exhausted
where:
a. there are no reasonably available local
remedies to provide effective redress, or
the local remedies provide no reasonable
possibility of such redress;
b. there is undue delay in the remedial
process which is attributable to the State
alleged to be responsible;
c. there was no relevant connection between
the injured person and the State alleged to
be responsible at the date of injury;
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
d. the injured person is manifestly precluded
from pursuing local remedies; or
e. the State alleged to be responsible has
waived the requirement that local
remedies be exhausted
The Calvo Clause
Definition
This refers to a stipulation which states that the
foreign party must rely exclusively on local
remedies and not seek any diplomatic
protection.
1. Extradition
Definition
Extradition is the surrender by one nation to
another of an individual accused or convicted
of an offense outside of its own territory, and
within the territorial jurisdiction of the other,
which, being competent to try and to punish
him, demands the surrender. [Government of
Hongkong Special Administrative Region v.
Muñoz, G.R. No. 207342 (2016)]
Extradition has thus been characterized as the
right of a foreign power, created by treaty, to
demand the surrender of one accused or
convicted of a crime within its territorial
jurisdiction, and the correlative duty of the other
state to surrender him to the demanding state.
[Government of Hong Kong Special
Administrative Region v. Olalia, G.R. No.
153675 (2007)]
It also refers to the removal of an accused from
the Philippines with the object of placing him at
the disposal of foreign authorities to enable the
requesting state or government to hold him in
connection with any criminal investigation
directed against him in connection with any
criminal investigation directed against him or
the execution of a penalty imposed on him
under the penal or criminal law of the
requesting state or government [Section 2(a),
P.D. 1069]
Requisites for Extradition to be exercised
1. There must be an extradition treaty in force
between the HKSAR and the Philippines;
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2. The criminal charges that are pending in
the HKSAR against the person to be
extradited;
3. The crimes for which the person to be
extradited is charged are extraditable
within the terms of the treaty;
4. The individual before the court is the same
person charged in the HKSAR;
5. The evidence submitted establishes
probable cause to believe that the person
to be extradited committed the offenses
charged; and
6. The offenses are criminal in both the
HKSAR and the Philippines (double
criminality rule).
[Government of Hongkong Special
Administrative Region v. Muñoz, G.R. No.
207342 (2016)]
a. FUNDAMENTAL PRINCIPLES ON
EXTRADITION
i. The duty to extradite must be
based on treaty
It is not part of customary international law,
although the duty to extradite exists only for
some international crimes. Thus, a state must
extradite only when obliged by treaty to do so.
[Government of Hongkong Special
Administrative Region v. Muñoz, G.R. No.
207342 (2016)]
Principle of specialty
A fugitive who is extradited may be tried only
for the crime specified in the request for
extradition and included in the list of offenses
in the extradition treaty [US v. Rauscher, 119
U.S. 407 (1886)].
Rule of Double Criminality
The act for which extradition is sought must be
punishable in both the requesting and
requested states. [Government of Hongkong
Special Administrative Region v. Muñoz, G.R.
No. 207342 (2016)]
ii. It is a sui generis proceeding
An extradition proceeding is sui generis. It is
not a criminal proceeding which will call into
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
operation all the rights of an accused as
guaranteed by the Bill of Rights [Sec. of Justice
v. Lantion, G.R. No. 139465, (2000)]
iii. Bail may be granted to the
extraditee on the basis of clear
and convincing evidence that he
is not a flight risk
The potential extraditee must prove by “clear
and convincing evidence” that he is not a flight
risk and will abide with all the orders and
processes of the extradition court.
[Government of Hong Kong Special
Administrative Region v. Olalia, G.R. No.
153675 (2007)]
iv. There must be compliance with
procedural due process
b. PROCEDURE
1. A request for extradition is presented
through diplomatic channels to the state of
refuge with the necessary papers for
identification.
2. The request is received by the state of
refuge.
3. A judicial investigation is conducted by the
state of refuge to ascertain if the crime is
covered by the extradition treaty and if
there is a prima facie case against the
fugitive according to its own laws.
4. If there is a prima facie case, a warrant of
surrender will be drawn and the fugitive will
be delivered to the state of origin. The
evaluation process partakes the nature of
a criminal investigation, having
consequences which will result in
deprivation of liberty of the prospective
extraditee. A favorable action in an
extradition request exposes a person to
eventual extradition to a foreign country,
thus exhibiting the penal aspect of the
process.
The evaluation process itself is like a
preliminary investigation since both procedures
may have the same result: the arrest and
imprisonment of the respondent. [Secretary of
Justice v. Lantion, G.R. No. 139465 (2000)]
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c. Extradition v. Deportation
Extradition Deportation
Effected at the Unilateral Act of the
request of another State
State
Based on offenses Based on causes
committed in the arising in the local
state of origin state
Calls for the return of An undesirable alien
the fugitive to the may be deported to a
requesting state state other than his
own or his state of
origin.
The Obligation of aut dedere aut judicare (to
extradite or prosecute)
A conventional obligation of States found in
various treaties. A state subject to this
obligation is bound to extradite if it does not
prosecute, and to prosecute if it does not
extradite.
The effective fulfilment of the obligation to
extradite or prosecute requires
a. undertaking necessary national measures
to criminalize the relevant offences,
b. establishing jurisdiction over the offences
and the person present in the territory of
the State,
c. investigating or undertaking primary
inquiry,
d. apprehending the suspect, and submitting
the case to the prosecuting authorities
(which may or may not result in the
institution of proceedings)
OR
Extraditing, if an extradition request is
made by another State with the necessary
jurisdiction and capability to prosecute the
suspect. (Final Report of the International
Law Commission on the Obligation of Aut
dedere aut judicare (2014))
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW

L. INTERNATIONAL
1. The Universal Declaration of
HUMAN RIGHTS LAW Human Rights (“UDHR”)
Definition of Human Rights
The UDHR is the first comprehensive
Human rights are those fundamental and
catalogue of human rights proclaimed by an
inalienable rights which are essential for life as
international organization.
a human being. They are recognized by the
international community as a whole through
It is not a treaty. It has no obligatory character
their protection and promotion under
because it was adopted by the UN General
contemporary international law.
Assembly as Resolution 217A (III). As a
resolution, it is merely recommendatory.
Definition of International Human Rights
Law
Accordingly, it has been observed that the
International human rights law lays down the
Universal Declaration of Human Rights no
obligations of Governments to act in certain
longer fits into the dichotomy of “binding treaty”
ways or to refrain from certain acts, in order to
against “non-binding pronouncement”, but is
promote and protect human rights and
rather an authoritative statement of the
fundamental freedoms of individuals or groups.
international community. Thus, a Declaration
[United Nations, Global Issue]
creates an expectation of adherence, and
insofar as the expectation is gradually justified
Classifications of Human Rights
by State practice, a declaration may by custom
1. First generation rights consist of civil and
become recognized as laying down rules
political rights;
binding upon the States. Indeed, several
2. Second generation rights consist of
commentators have concluded that the
economic, social and cultural rights;
Universal Declaration has become, in toto, a
3. Third generation rights consist of the rights
part of binding, customary international law.
to development, to peace, and to
[Razon v. Tagitis, G.R. No. 182498 (2009)
environment [VASAK, KAREL]
citing Filartiga v. Pena-Irala, 630 F.2d 876 (2d
Cir. 1980)]
The distinction between first generation
and second generation human rights
In the Philippines, the UDHR is considered as
As to Obligatory Force customary international law. Universal
Declaration of Human Rights ("UDHR") has
1st Generation Rights are STRICTLY or
been interpreted by this Court as part of the
OBJECTIVELY OBLIGATORY, whatever the
economic condition or other conditions of the generally accepted principles of international
law and binding on the State. [Poe-
state obliged. 2nd Generation Rights are
Llamanzares v. Comelec; G.R. No. 221697,
RELATIVELY or SUBJECTIVELY
OBLIGATORY, states are required to (2016)]
progressively achieve the full realization of
these rights “to the maximum of their available The UDHR embodies both first and second
resources”. generation rights.

As to derogation The civil and political rights (1st Generation

1st Generation rights are derogable only in
times of public emergency. 2nd Generation
Rights may be restricted for the general
welfare, with or without an “emergency that
threatens the independence or security of a
state party”.
Rights) enumerated in the UDHR include right
such as:
a. The right to life, liberty, privacy and security
of person;
b. Prohibition against slavery;

Page 427 of 439

 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
c. The right not to be subjected to arbitrary
arrest, detention or exile;
d. The right to fair trial and presumption of
innocence;
e. The right to a nationality;
f. The right to freedom of thought,
conscience and religion;
g. The right to freedom of opinion and
expression;
h. The right to peaceful assembly and
association;
i. The right to take part in the government of
his country.
The Economic, social and cultural rights
enumerated in the UDHR include rights such
as:
a. The right to social security;
b. The right to work and protection against
unemployment;
c. The right to equal pay for equal work;
d. The right to form and join trade unions;
e. The right to rest and leisure.
Note: See Articles 3-28 of the UDHR for a
complete enumeration of the rights.
2. The International Covenant
on Civil and Political Rights
(“ICCPR”)
It embodies the first generation of human
rights, although it lists more rights than the
UDHR, namely:
a. The right to own property;
b. The right to seek in other countries asylum
from prosecution;
c. The right of members of ethnic, religious or
linguistic groups not to be denied to enjoy
their own culture, to profess and practice
their own religion, or to use their own
language;
d. The right to compensation in case of
unlawful arrest;
e. The right to legal assistance in criminal
prosecution;
f. The right against self-incrimination;
g. Protection against double jeopardy;
h. The right to review by higher tribunal in
case of criminal conviction;
Page 428 of 439
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i. The right of every child to nationality;
j. The right to protection of a child as required
by his status as a minor;
k. The right of persons below 18 years old not
to be sentenced to death for crimes;
l. The right against the carrying out of death
sentence on the part of a pregnant woman.
The following are obligations of state parties
under the ICCPR:
a. State parties undertake to respect and to
ensure to all individuals within their territory
the rights enumerated therein, without
distinction of any kind, such as race, color,
sex, language, religion, political or other
opinion, national or social origin, birth or
other status.
b. State parties are required to take the
necessary steps to adopt legislative or
other measures that are necessary to give
effect to the rights recognized in the
ICCPR.
c. State parties must ensure that any person
whose rights or freedoms are violated have
an effective remedy, notwithstanding that
the violation has been committed by
persons action in an official capacity.
d. State parties must ensure that any person
claiming such remedy shall have his right
thereto determined by competent judicial,
administrative or legislative authority, and
that they shall enforce the remedy when
granted
e. To ensure that the competent authorities
shall enforce such remedies when granted.
3. The International Covenant
on Economic, Social and
Cultural Rights (“ICESCR”)
It embodies the second generation of human
rights, although it lists more rights than the
UDHR, namely:
a. The right to health;
b. The right to strike;
c. The right to be free from hunger;
d. The right to enjoy the benefits of scientific
progress;
e. Freedom for scientific research and
creativity.
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW

Committee has opined that

The obligation of a state party to the ICESCR the reference to “sex” in
is to undertake the necessary steps to the Article 26 should be
maximum of its available resources, with a construed to include
view to achieving progressively the full “sexual orientation”.
realization of the rights enumerated in the
covenant by all appropriate means. o On the right to nationality [Poe-
Llamanzares v. Comelec; G.R. No.
COMMON PROVISIONS IN THE ICCPR AND 221697, (2016)]:
ICESCR ○ The common thread of the
The common provisions of the two covenants UDHR, UNCRC and
deal with collective rights, namely: ICCPR is to obligate the
1. The right of self-determination of peoples; Philippines to grant
2. The right of peoples to freely dispose of nationality from birth and
their natural wealth and resources; and ensure that no child is
3. The right of peoples not to be deprived of stateless.
their own means of subsistence.

These rights were not covered by the UDHR.

M. INTERNATIONAL
HUMANITARIAN LAW
Philippine Jurisprudence on Human Rights
• On enforced disappearances (Razon v. International Humanitarian Law (hereinafter
Tagitis, G.R. No. 182498 (2009): “IHL”) is the branch of public international law
o Any act of enforced disappearance is which governs armed conflicts to the end that
an offence to dignity. It is condemned the use of violence is limited and that human
as a denial of the purposes of the suffering is mitigated or reduced by regulating
Charter of the United Nations and as a or limiting the means of military operations and
grave and flagrant violation of human by protecting those who do not or no longer
rights and fundamental freedoms participate in the hostilities.
proclaimed in the Universal Declaration
of Human Rights and reaffirmed and This used to be known as the Laws of War
developed in international instruments which provides for instances when the use of
in this field. armed force is justifiable (jus ad bellum) and
o On the principle of non-discrimination regulates the conduct of armed conflict (jus in
vis-à-vis the right to electoral bello).
participation [Ang Ladlad LGBT Party
vs. Commission on Elections; G.R. No.
IHL IHRL
190582, (2010)]
○ The principle of non- Application
discrimination requires that
laws of general application In situations of At all times; during
relating to elections be armed conflict war and peace time
applied equally to all
persons, regardless of Purpose
sexual orientation.
Although sexual orientation Protect people who Protect individuals
is not specifically do not or are no from arbitrary
enumerated as a status or longer taking part in behavior by their
ratio for discrimination in hostilities. own governments.
Article 26 of the ICCPR, the
ICCPR Human Rights

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 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
Derogation
No derogations are Some HR treaties
permitted under IHL permit governments
to derogate from
certain rights, in
situations of public
emergency.
1. Categories of Armed Conflict:
a. International Armed Conflicts (IAC)
Definition: An international armed conflict
occurs when one or more states have recourse
to armed force against another state
[Prosecutor v. Tadic (ICTY Appeals Chamber,
1995)], regardless of the reasons or the
intensity of the confrontation.
b. Internal or Non-International
Armed Conflicts (NIAC)
Definition: This refers to conflicts between
governmental forces and non-governmental
armed groups, or between such groups only.
Basis: The Common Article 3, Geneva
Conventions, and Article 1, Additional Protocol
II.
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.
Article 1 develops Common Article 3. It applies
to:
1. All armed conflicts which take place in the
territory of a state party;
2. Between its armed forces and dissident
armed forces or other organized groups;
3. Which, under responsible command,
exercise such control over a part of its
territory;
Page 430 of 439
POLITICAL LAW
4. As to enable it to carry out sustained and
concerted military operations and to
implement the Protocol.
Armed conflict does not include internal
disturbances or tensions such as:
1. Riots;
2. Isolated and sporadic acts of violence; and
3. Other acts of a similar nature.
c. War of National Liberation
Armed conflicts in which people are fighting
against colonial domination and alien
occupation and against racist regimes in the
exercise of their right to self-determination
[Protocol I, Art. 1(4)].
Categories:
1. Colonial domination;
2. Alien occupation; and
3. Racist regimes when the peoples
oppressed by these regimes are fighting for
self-determination.
2. Core International Obligation
of States
In general, IHL defines the following
obligations:
a. Parties to an armed conflict, together with
their armed forces, do not have unlimited
choice of methods or means of warfare.
They are prohibited from employing
weapons or means of warfare that cause
unnecessary damage or excessive
suffering.
b. Parties to an armed conflict shall, at all
times, distinguish between civilian
population and the combatants (principle of
distinction). Civilians shall be spared from
military attacks which shall be directed only
against military objectives.
c. Persons hors de combat shall be protected
and treated humanely without any adverse
distinction. Their right to life and physical
and moral integrity shall be respected.
d. It is prohibited to kill or injure an enemy who
is hors de combat or who surrenders.
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
e. The wounded and the sick shall be
protected and cared for by the party to the
conflict which has them in its power.
Protection shall also apply to medical
personnel, establishments, transports and
material.
f. Combatants and civilians who are captured
by authority of the party to a dispute are
entitled to respect for their right to life,
dignity, conviction, and other personal
rights. They shall be protected against acts
of violence or reprisals [Legality of the
Threat or Use of Nuclear Weapons
Advisory Opinion (ICJ, 1996)].
3. Principles of International
Humanitarian Law
Combatants
These are members of the armed forces of a
party to a conflict [Art. 3(2), Protocol 1]. They
have the right to participate directly and
indirectly in hostilities [Art. 43(2), Protocol 1].
Only combatants are allowed to engage in
hostilities.
Hors de Combat
Under Art. 41(2), Protocol I, a person is hors de
combat if:
1. He is in the power of an adverse party to
the conflict;
2. He clearly expresses an intention to
surrender; or
3. He has been rendered unconscious or is
otherwise incapacitated by wounds or
sickness and is therefore incapable of
defending himself; provided that in any of
these cases, he abstains from any hostile
act and does not attempt to escape.
Protected Persons
They are those who enjoy or are entitled to
protection under the Geneva Conventions.
Categories of protected persons include:
1. The wounded, the sick, and shipwrecked;
2. Prisoners of war; and
3. Civilians.
Page 431 of 439
POLITICAL LAW
a. Treatment of Civilians
For purposes of protection, civilians are further
classified as:
i. Civilians who are victims of conflict in
countries involved;
ii. Civilians in territories of the enemy;
iii. Civilians in occupied territories; and
iv. Civilians internees.
Martens Clause/Principle of Humanity
In cases not covered by other international
agreements, civilians and combatants remain
under the protection and authority of the
principles of international law derived from
established custom, from the principles of
humanity and from the dictates of public
conscience.
The Principle of Military Necessity
The belligerent may employ any amount of
force to compel the complete submission of the
enemy with the least possible loss of lives, time
and money.
The Principle of Proportionality
The legal use of force whereby belligerents
must make sure that harm caused to civilians
or civilian property is not excessive in relation
to the concrete and direct military advantage
from an anticipated attack or by an attack on
military objective.
b. Prisoners of War
Under Art. 4, Geneva Convention (III),
prisoners of war are persons belonging to one
of the following categories:
1. Members of the armed forces of a party to
the conflict, including militias or volunteer
corps;
2. Militias or volunteer corps operating in or
outside their own territory, even if such
territory is occupied, provided:
a. They are being commanded by a
person responsible for his
subordinates;
b. Have a fixed distinctive sign
recognizable at a distance;
c. Carry arms openly; and
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
d. Conduct their operations in
accordance with the laws and
customs of war.
3. Members of regular armed forces who
profess allegiance to a government or
authority not recognized by the detaining
power;
4. Civilians who accompany the armed
forces, provided that they have received
authorization from the armed forces which
they accompany;
5. Members of crews of merchant marine and
the crews of civil aircraft of the parties to
the conflict;
6. Inhabitants of a non-occupied territory who
on the approach of the enemy
spontaneously take up arms to resist the
invading forces, without having had time to
form themselves into regular armed units,
provided they carry arms openly and
respect the laws and customs of war; and
7. Persons belonging to the armed forces of
the occupied territory.
Rights of prisoners of war
1. To be treated humanely;
2. Not to be subject to torture;
3. To be allowed to communicate with their
families;
4. To receive food, clothing, religious articles,
and medicine;
5. To bare minimum of information;
6. To keep personal belongings;
7. To proper burial;
8. To be grouped according to nationality;
9. To the establishment of an informed
bureau; and
10. To repatriation for sick and wounded (1949
Geneva Convention)
4. Law on Neutrality
It is the law governing a country’s abstention
from participating in a conflict or aiding a
participant of such conflict, and the duty of
participants to refrain from violating the
territory, seizing the possession, or hampering
the peaceful commerce of the neutral countries
[The Three Friends, 166 U.S. 1 (1587)].
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POLITICAL LAW
Neutrality is the legal status of a State in times
of war, by which it adopts impartiality in relation
to the belligerents with their recognition.
The Geneva Convention (III) allows neutral
powers to cooperate with the parties to the
armed conflict in making arrangements for the
accommodation in the former’s territory of the
sick and wounded prisoners of war.
The Hague Convention Respecting the Rights
and Duties of Neutral Powers (1907) governs
the status of neutrality by the following rules:
a. The territory of the neutral power is
inviolable.
b. Belligerents are forbidden to move troops
or munitions of war and supplies across the
territory of a neutral power.
c. A neutral power is forbidden to allow
belligerents to use its territory for moving
troops, establishing communication
facilities, or forming corps of combatants.
d. Troops of belligerent armies received by a
neutral power in its territory shall be
interned away from the theatre of war.
e. The neutral power may supply them with
food, clothing or relief required by
humanity.
f. If the neutral power receives escaped
prisoners of war, it shall leave them at
liberty. It may assign them a place of
residence if it allows them to remain in its
territory.
g. The neutral power may authorize the
passage into its territory of the sick and
wounded if the means of transport bringing
them does not carry personnel or materials
of war.
A protecting power is a state or an
organization:
a. Not taking part in the hostilities;
b. Which may be a neutral state;
c. Designated by one party to an armed
conflict with the consent of the other;
d. To safeguard or protect its humanitarian
interests in the conflict, the performance of
which IHL defines specific rights and
duties.
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
N. LAW OF THE SEA
Definition
The United Nations Convention on Law of the
Sea (UNCLOS) is the body of treaty rules and
customary norms governing the use of the sea,
the exploitation of its resources, and the
exercise of jurisdiction over maritime regimes
[MAGALLONA].
It is the branch of public international law which
regulates the relations of states with respect to
the use of the oceans.
Nature of the UNCLOS treaty
UNCLOS III has nothing to do with the
acquisition (or loss) of territory. It is a
multilateral treaty regulating, among others,
sea-use rights over maritime zones [Magallona
v. Ermita, G.R. No. 187167 (2011)]
The UNCLOS is a product of international
negotiation that seeks to balance State
sovereignty (mare clausum) and the principle
of freedom of the high seas (mare liberum).
The freedom to use the world’s marine
waters is one of the oldest customary
principles of international law. The UNCLOS
gives to the coastal State sovereign rights in
varying degrees over the different zones of the
sea which are: 1) internal waters, 2) territorial
sea, 3) contiguous zone, 4) exclusive
economic zone, and 5) the high seas. [Arigo v.
Swift, G.R. No. 206510, 2014)]
1. Baselines
The line from which a breadth of the territorial
sea and other maritime zones, such as the
contiguous zone and the exclusive economic
zone, is measured. Its purpose is to determine
the starting point to begin measuring maritime
zones boundary of the coastal state.
The General Rule is that there are two types of
Baselines:
a. Normal Baseline: where the territorial sea
is the low-water line along the coast as
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POLITICAL LAW
marked on large-scale charts officially
recognized by the coastal state [Art. 5,
UNCLOS].
b. Straight Baseline: where the coastline is
deeply indented or cut into, or if there is a
fringe of islands along the coast in its
immediate vicinity, the method of straight
lines joining the appropriate points may be
employed in drawing the baseline from
which the breadth of the territorial sea is
measured [Art. 7, UNCLOS].
Special Baseline for Archipelagic States
a. Straight baselines join the outermost points
of the outermost islands and drying reefs of
an archipelago, provided that within such
baselines are included the main islands
and an area in which the ratio of the water
to the area of the land, including atolls, is
between 1 to 1 and 9 to 1.
b. The breadth of the territorial sea, the
contiguous zone, and the exclusive
economic zone, are measured from the
straight archipelagic baselines
2. Archipelagic States
It is a state made up of wholly one or more
archipelagos. It may include other islands [Art.
46, UNCLOS].
An archipelago is a group of islands, including
parts of islands, interconnecting waters and
other natural features which are so closely
related that such islands, waters and natural
features form an intrinsic geographical,
economic and political entity, or which
historically have been regarded as such.
Differentiating Island vs. Rocks
An island is a naturally formed area of land,
surrounded by water, which is above water at
high tide.
Rocks which cannot sustain human habitation
or economic life of their own shall have no
exclusive economic zone or continental shelf
[Art. 121, UNCLOS].
Types of Archipelagos
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
Note: UNCLOS only applies to Mid-Ocean
archipelagos:
a. Coastal: situated close to a mainland and
may be considered part thereof (e.g.
Norway);
b. Mid-Ocean: situated in the ocean at such
distance from the coasts of firm land (e.g.
Philippines).
Archipelagic Waters
These are the waters enclosed by the straight
archipelagic baselines, regardless of their
depth or distance from the coast [Art 49(1),
UNCLOS].
They are subject to the sovereignty of the
archipelagic state, but subject to the right of
innocent passage for the ships of all states.
Rights in Archipelagic Waters
a. The right of Innocent passage is also
referred to as “archipelagic Sea Lanes
Passage”: It is the right of foreign ships and
aircraft to have continuous, expeditious
and unobstructed passage in sea lanes
and air routes through or over the
archipelagic waters and the adjacent
territorial sea of the archipelagic state, “in
transit between one part of the high seas or
an exclusive economic zone.” All ships and
aircraft are entitled to the right of
archipelagic sea lanes passage
[MAGALLONA; Art. 53(1) in relation to Art.
53(3) UNCLOS]. It is considered as part of
international customary law. [Magallona v.
Ermita, G.R. No. 187167 (2011)]
b. Rights under existing agreement on the
part of third states should be respected by
the archipelagic state.
c. Within its archipelagic waters, the
archipelagic state shall recognize
traditional fishing rights and other
legitimate activities of immediately
adjacent neighboring states.
d. The archipelagic state shall respect
existing submarine cables laid by other
states and “passing through its waters
without making a landfall.”
How the Archipelagic Sea Lanes are
determined The archipelagic state proposes it
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to the International Marine Organization, which
will then adopt the Sea Lanes through Art. 53
(9) of the UNCLOS.
Under Art. 1 of the 1987 Constitution, the
archipelagic waters of the Philippines are
characterized as forming part of “the internal
waters of the Philippines.” However, under the
UNCLOS, archipelagic waters consist mainly
of the “waters around, between, and
connecting the islands of the archipelago,
regardless of breadth or dimension.”
Moreover, under Art. 47, UNCLOS, it is not
mandatory upon concerned states to declare
themselves as archipelagic states. The
Philippines did so under its new baselines law,
R.A. No. 9522, which was upheld as
constitutional [Magallona v. Ermita, G.R. No.
187167 (2011)].
3. Internal waters
These are waters of lakes, rivers, and bays
landward of the baseline of the territorial sea.
Waters on the landward side of the baseline of
the territorial sea also form part of the internal
waters of the coastal state. However, in case of
archipelagic states, waters landward of the
baseline other than those rivers, bays and
lakes, are archipelagic waters [Art. 8(1),
UNCLOS].
They are considered as part of the state’s land
territory and are subject to full sovereignty.
4. Territorial Sea
These waters stretch up to 12 miles from the
baseline on the seaward direction. They are
subject to the jurisdiction of the coastal state,
which jurisdiction almost approximates that
which is exercised over land territory.
Rights that are available in Territorial Sea
a. Innocent Passage: refers to navigation
through the territorial sea without entering
internal waters, going to internal waters, or
coming from internal waters and making for
the high seas.
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW

international the proposal and

This is subject to two limitations: organization agreement of states
(i) It must Involve only acts that are bordering the straits
required by navigation or by
distress and 5. Contiguous Zone
(ii) Not prejudice the peace, security,
or good order of the coastal state.
The contiguous zone is that which is
contiguous to its territorial sea. It may not
b. Transit Passage: refers to the right to
extend beyond 24 nautical miles from the
exercise freedom of navigation and over
baselines from which the breadth of the
flight solely for the purpose of continuous
territorial sea is measured.
and expeditious transit through the
straights used for international navigation.
The powers of the Coastal state over the
The right cannot be unilaterally suspended
Contiguous Zone include:
by the coastal state.
a. Control to prevent infringement of its
customs, fiscal, immigration or sanitary
INNOCENT TRANSIT laws and regulations within its territory or
PASSAGE PASSAGE territorial sea; and
Pertains to Includes the right of b. Control to punish infringement of the above
navigation of overflight (i.e. laws and regulations committed within its
ships only pertains to territory or territorial sea.
navigation of aircraft)
Requires Submarines are
submarines and allowed to navigate 6. Exclusive Economic Zone
other underwater in (EEZ)
vehicles to navigate “normal mode” (i.e.
on the surface and submerged) The exclusive economic zone (EEZ) is the
show their flag stretch of area up to 200 miles from the
Can be suspended, Cannot be baselines. Within this zone, a State may
but under the suspended regulate non-living and living resources, other
condition that it does economic resources, artificial installations,
not discriminate scientific research, and pollution control.
among foreign ships,
and such The extent of the state’s rights in the EEZ
suspension is The UNCLOS gives the coastal State
essential for the sovereign rights over all economic resources of
protection of its the sea, seabed, and subsoil in an area
security, and extending not more than 200 nautical miles
suspension is beyond the baseline from which the territorial
effective only after sea is measured [Arts. 55 and 57, UNCLOS].
having been duly
published [Art. 25, Rights of the coastal state in the EEZ
UNCLOS] a. Establish and use of artificial islands,
In the designation of Designation of sea installations and structures;
sea lanes and traffic lanes and traffic b. Conduct scientific research;
separation schemes, separation schemes c. Preserve and protect its marine
the coastal state is subject to adoption environment;
shall only take into by competent d. Board and inspect a ship;
account the international e. Arrest a ship and its crew;
recommendations of organization upon f. Institute judicial proceedings against them.
the competent

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 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
In detention of foreign vessels, the coastal
state has the duty to promptly notify the flag
state of the action taken
Rights of the non-coastal state
Under Art. 58, UNCLOS, all States enjoy the
freedom of navigation, over flight, and laying of
submarine cables and pipelines in the EEZ of
coastal states
Coastal States have the primary responsibility
to utilize, manage and conserve the living
resources within their EEZ (i.e. ensuring that
living resources are not endangered by
overexploitation), and the duty to promote
optimum utilization of living resources by
determining allowable catch.
There is a duty to share catch if the maximum
allowable catch is determined to be above the
capacity of the State to harvest.
The State shall give other States access to the
surplus by means of arrangements allowable
under the UNCLOS. The UNCLOS, however,
does not specify the method for determining
“allowable catch.”
The right of geographically disadvantaged
states or land locked states
General Rule: These states have the right to
participate, on equitable basis, in the
exploitation of the surplus of the living
resources in the EEZ of coastal states of the
same sub region or region.
Exception: A coastal state whose economy is
overwhelmingly dependent on the exploitation
of its EEZ, however, is not required to share its
resources.
7. Continental Shelf
Extended Continental Shelf
It is the seabed and subsoil of the submarine
areas extending beyond the territorial sea of
the coastal state throughout the natural
prolongation of its land territory up to:
a. The outer edge of the continental margin;
or
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POLITICAL LAW
b. A distance of 200 nautical miles from the
baselines of the territorial sea where the
outer edge of the continental margin does
not extend up to that distance.
Continental Margin
Submerged prolongation of the land mass of
the continental state, consisting of the
continental shelf proper, the continental slope,
and the continental rise
Continental Shelf
a. The juridical or legal continental shelf
covers the area until 200 nautical miles
from baselines.
b. The extended continental shelf covers the
area from the 200-mile mark to 350 nautical
miles from the baselines depending on
geomorphologic or geological data and
information.
c. The continental shelf shall not extend
beyond 350 nautical miles from the
baseline of the territorial sea, or 100
nautical miles from the 2,500- meter
isobath (i.e. the point where the waters are
2,500 meters deep).
Exclusive Rights of the Coastal State in the
Continental Shelf:
a. Sovereign rights with respect to the
exploration and exploitation of its natural
resources, including the mineral and other
non-living resources of the seabed and
subsoil together with living organisms
belonging to the sedentary species.
b. The coastal state has the exclusive right to
authorize and regulate oil-drilling on its
continental shelf.
Note: “Exclusive” means that if the coastal
does not explore or exploit its resources, no
other state can without the State’s consent.
Exclusive Continental Shelf
Economic Zone
Coastal state is No duty to manage
obliged to manage and conserve living
and conserve living resources
resources in the
EEZ.
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW

The extent of the The extent of the resources of the Area, including the
right of the coastal right of the coastal transporting, processing and marketing of
state to natural state to natural minerals.
resources (non- resources (non-
living) only extends living) covers both What may be done by the Enterprise in the
to the seabed and waters super Area
subsoil adjacent to the Mining activities directly; or By joint ventures
seabed and those of with (1) State parties; (2) State enterprises; or
the seabed and (3) Natural or juridical persons sponsored by
subsoil. state parties.
The extent of the The extent of the
right of the coastal right of the coastal 8. The International Tribunal for
state to living state to living
resources only resources does not
the Law of the Sea (ITLOS)
extends to sedentary extend to sedentary
species species. The ITLOS is an independent judicial body
established by the Third United Nations
Convention on the Law of the Sea to adjudicate
The Area
disputes arising out of the interpretation and
The seabed and ocean floor and subsoil
application of the convention.
thereof, beyond the limits of national
jurisdiction.
Composition: Election of 21 members by the
state parties.
The Legal Status of the Area and the
resources therein:
The settlement of Disputes
a. No State shall claim or exercise
1. Peaceful Settlement of Disputes: Under
sovereignty or sovereign rights over any
Par. 3, Art. 2, UN Charter, States have the
part of the Area or its resources, nor shall
duty to settle disputes by peaceful means.
any State or natural or juridical person
This obligation extends to State parties of
appropriate any part thereof. [Art. 137,
the UNCLOS, underscoring the right of the
UNCLOS]
parties to resort to peaceful means of their
b. The Area and its resources are the
own choice on which they can agree any
common heritage of mankind [Art. 136,
time.
UNCLOS].
2. Compulsory Settlement of Disputes:
c. Activities in the Area shall be carried out for
Where no successful settlement can be
the benefit of mankind as a whole [Art. 140,
achieved, or if the parties are unable to
UNCLOS].
agree on the means of settlement of a
d. The Area shall be open to use exclusively
dispute concerning the application of
for peaceful purposes by all States [Art.
UNCLOS, such dispute may be governed
141, UNCLOS].
by the principle of compulsory settlement,
where procedures entail binding decisions.
The International Seabed Authority (ISA) is
the organization that organizes, carries out,
The parties may choose, through a written
and controls the activities of the Area on behalf
revocable and replaceable declaration, to
of mankind as a whole. The ISA is composed
submit the dispute to the following:
of:
a. ITLOS;
a. The Assembly: all state parties to the
b. ICJ;
UNCLOS
c. Arbitral tribunal; or
b. The Council: the executive organ whose 36
d. Special arbitral tribunal.
members are elected by the Assembly
c. The Enterprise: the organ directly engaged
in the exploration and exploitation of the

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 U.P. LAW BOC PUBLIC INTERNATIONAL LAW
Jurisdiction of the ITLOS
a. Any dispute submitted to it concerning the
application or interpretation of UNCLOS; or
b. Any dispute concerning the interpretation
or application of an international
agreement:
i. Related to the purposes of the
UNCLOS; or
ii. When such dispute is submitted to
it in accordance with that
agreement
Sources of Law to be applied in ITLOS:
The court or tribunal shall apply the UNCLOS
and other rules of international law not
incompatible with the UNCLOS [Art. 293,
UNCLOS]. It may also decide a case ex aequo
et bono (what is equitable and just) if the
parties so agree.
O. INTERNATIONAL
ENVIRONMENTAL LAW
Definition
It is the branch of public international law
comprising those substantive, procedural, and
institutional rules which have as their primary
objective the protection of the environment
[SANDS].
The protection of the environment is a vital part
of contemporary human rights doctrine, for it is
a sine qua non for numerous human rights
such as the right to health, and the right to life
itself. [Danube Dam Case (ICJ, 1997)]
Basic Principles
1. Common but Differentiated
Responsibilities
States shall cooperate in a spirit of global
partnership to conserve, protect and
restore the health and integrity of the
earth’s ecosystem. In view of the different
contributions to global environmental
degradation, States have common but
differentiated responsibilities. The
developed countries acknowledge the
responsibility that they bear in the
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POLITICAL LAW
international pursuit to sustainable
development in view of the pressures their
societies place on the global environment
and of the technologies and financial
resources they command [Principle 7, Rio
Declaration].
2. Precautionary Principle
Where there are threats of serious or
irreversible damage, lack of full scientific
certainty shall not be used as a reason for
postponing cost-effective measures to
prevent environmental degradation
When it is uncertain as to the consequence
of the proposed activity to the environment,
doubts should be resolved on the side of
caution by taking measures to prevent or
avoid environmental degradation.
[Principle 15, Rio Declaration].
3. Sustainable Development
It is development that meets the needs of
the present without compromising the
ability of future generations to meet their
own needs [Gabcikovo-Nagymaros Project
(ICJ, 1997)].
No state has the right to use or permit the
use of its territory in such a manner as to
cause injury by fumes in or to the territory
of another or the properties or persons
therein, when the case is of serious
consequence and the injury is established
by clear and convincing evidence [Trail
Smelter Arbitration Case (1938)].
Two Fundamental Principles of liability for
transboundary pollution:
a. A state must show material damage
and causation to be entitled to legal
relief; and
b. A state has a duty to prevent, and may
be held responsible for pollution by
private parties within its jurisdiction if
such pollution results in demonstrable
injury to another state. [Trail Smelter
Case, US v. Canada, 1941]
 U.P. LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW

4. Sic Utere Tuo Ut Alienum Non Laedas or

the No-Harm Principle

States have, in accordance with the

Charter of the United Nations and the
principles of international law, 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 [Principle 21, Stockholm
Declaration].

Principle 21 as Custom:
“The Court recognizes that the
environment is daily under threat and that
the use of nuclear weapons could
constitute a catastrophe for the
environment. The existence of the general
obligation of States to ensure that activities
within their jurisdiction and control respect
the environment of other States or of areas
beyond national control is now part of the
corpus of international law relating to the
environment.”[ICJ Advisory Opinion on the
Legality of the Threat or Use of Nuclear
Weapons, July 8, 1996]

5. Protection of the Environment During

armed Conflict

Each State Party undertakes not to engage

in military or other hostile use of
environmental modification techniques
having widespread, long-lasting or severe
effects as the means of destruction,
damage or injury to any other Party State.
[Art. 1 Convention on the Prohibition of
Military or other Hostile Use of
Environmental Modification Techniques or
the Environmental Modification Convention
(ENMOD)]

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