Public International Law

• Public International Law may be defined as the law which regulates

the relations of States.

• Later, the definition was expanded and it is now defined as the body
of rules and principles which are recognized as legally binding and
which govern the relation of states and other entities invested with
international legal personality.

• Recently, it has been referred to as the body of rules and principles of

action which are binding upon civilized states in their relationships
with one another and those between international organizations and
states, among the international organizations themselves, as well as
states or international organizations and natural and juridical
persons.
Theories as to Relationship Between International Law and
Municipal Law - Dualism & Monism:
Dualists see International Law and Municipal Law as distinct and
separate – arising from different sources, governing different
areas and relationships, and different in substance. According to
Dualists, international law is inferior to and weaker than,
domestic law. If international law ever becomes part of domestic
law, that can only be because domestic law, has chosen to
incorporate it
Monists on the other hand contend that there is only one system
of law, of which international and domestic laws are no more
than two aspects. They justify this by claiming that both of them
govern sets of individuals (States being seen for this as collection
of individuals) both are binding, and both are manifestations of a
single concept of law. Hence international law is superior and
stronger, as it represents the system’s highest rules – jurisdiction
on a domestic level being only delegated to states, which cannot
avoid being bound to apply international law at the domestic
level. So, if domestic law anywhere conflicts with international
law that is the State’s fault, and will not excuse the State’s
obligations.
Viewed on the international plane, the dispute between these two
schools of thought is indeed academic. “Formally international
and domestic law as systems can never come into conflict. What
may occur is something strictly different, namely a conflict of
obligations or an inability for a state on the domestic plane to act
in the manner required by international law”.
It is well settled that international law will apply to a state
regardless of its domestic law and that a state can not in the
international forum plead its own domestic law, or even its
domestic constitution, as an excuse for breaches of its
international obligations.
Viewed on the domestic plane, however, the dispute is not merely
an academic one, for the two schools of thought lead to very
different results.
Whether international law forms part of domestic law is a
question, which in practice, is decided either by the Constitution
or a Statute or by the domestic Courts of each State.
Monists say that it will always form such a part; dualists, that it
will form part only if the domestic law has expressly as impliedly
incorporated it. In fact, many States expressly accept
international law as part of their domestic law.
Where international law becomes incorporated in a State’s domestic
law without the need for specific legislation, those parts of it, which are
sufficiently explicit to be enforceable by the domestic courts, are
known as ‘self executing’.
Some States provide by their Constitutions that certain provisions of
international law shall be self-executing. For example, the Constitution
of the U.S.A., provides that international treaties are part of the law of
the land. Other countries have gone even further by not only making
international law self executing, but assigning to it a rank in the
domestic hierarchy superior to all prior and subsequent legislation.
Examples of this are France and Germany. But there are other States
that do not accept any international law as self-executing, or so accept
it in part. For example United Kingdom (U.K.).
Where International Law and Domestic Law coincide, there is of
course no problem. But if they differ – either because international law
imposes an obligation on a State which is not reflected in its domestic
law, or because obligations imposed by international law and domestic
law respectively conflict with each other in a particular case – a
domestic court will generally have to apply the following rules:
(1) Where the domestic legal system is founded on a dualists view, and
the obligation under international law has not become self-executing
under a standing provision of the domestic law or been expressly re-
enacted in that law, the court must follow the domestic law and ignore
the international law. (In U.K. where the legal system is entirely
dualist and there are no provision for self-execution), U. K. courts are
not entitled to take into account provision of international treaties if
the legislature has not expressly enabled them as part of domestic law
though U.K. is bound by treaty provision.
(2) In any other case, the court must have regard both to
international law and to domestic law. If there proves to be a
conflict between them, the court must follow any rules of
domestic law that prescribe which of them is to prevail.
(3) If there are no such rules, it will probably be because the
domestic legal system is founded on the monistic view, and so
international law will prevail.
Unfortunately, however, existing legal theories concerning such
application of international rights tend to belittle both the judicial
agency and the desirability of judicial participation in
implementing even relatively uncontroversial international rights
at domestic levels.
The existing pattern of marginalization of domestic enforcement
of International Human Rights Law is deeply rooted in a naïve
exploration of the theory of relationship between domestic law
and international law. The monists theory rightly contemplates
International Law and Domestic Law as just two manifestations
of one singular concept, “Law”. As such the judiciary in a monist
country is ideally in a position to directly apply international
human rights norms. By contrast, unincorporated international
human rights treaties are considered as only having ‘persuasive’
and not ‘binding’ authority for judiciaries of dualist tradition,
although as regards customary international law most dualist
court follow, if more theoretically than practically, a notionally
monist tradition of recognizing customary international human
rights as directly applicable part of national laws.
The traditional divide between ‘binding’ and ‘persuasive
authority’ of international human rights norms simply holds the
possibility that a judge may if he/she so wishes, draw on those
norms to inform his/her decisional reasoning. The approach does
not focus on the obligations that a state assumes by becoming a
party to an international convention, or under higher, general
international principle; nor does it articulate to refer, at the
minimum, to those international legal sources of state
obligations. In short the existing dualist model, in its uncritical
applied mood, addresses the issues of rights implementation
rather inadequately and tends to weaken both the normative and
ethical regime of international human rights law as a whole.
Thus, the dualist model seems to epitomize the limits of legal
positivism. But, if one concedes to the view that, apart from state
obligations, there are also values and ethical force in international
human rights, one would be able to pursue a more effective
approach to the dualism.
Mayo Moran aptly questioned the dominance of the “world of
legal judgment” by the traditional “binding sources” model of
international rules. While supporting the persuasive stance
regarding non-binding international law, they critique that the
courts current approach does not properly distinguish between
‘binding’ and ‘persuasive’ authorities of international rights law
and urge for judicial obligations to interpret binding international
law (e.g. customary) more actively.
Moran describes the approach of courts in this regard (treating
International Law as persuasive) as one of ‘Judicial quasi-
obligation’.
It appears that dualist model courts treat International Human
Rights Law as not ‘rights generating’ but only helps in articulating
rights based on domestic regime of law. Such an approach is
suicidal one considering the legal foundation upon which
International Human Rights Law exists
SOURCES OF INTERNATIONAL LAW
Article 38 of the Statute of International Court of Justice
enumerates the sources of international law as follows:
1. International conventions, whether general or particular,
establishing rules expressly recognized by the contesting states;
2. International custom, as evidence of a general practice
accepted as law;
3. The general principles of law recognized by civilized nations;
4. Judicial decisions and teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the
determination of rules of law.
Par. 2 Art. 38 of the Statute of the International Court of
Justice states that the court can decide a case ex aequo et
bono if the parties agree thereto.

• The Latin phrase means “In justice and fairness, according to

what is just and good; according to equity and fairness.”
SOURCES OF INTERNATIONAL LAW
INTERNATIONAL CONVENTIONS
• These are multilateral treaties, participated in by three or more
parties. They are compacts similar to contractual agreements,
which constitute the written law on the subject, among the
states which have adhered thereto.

• These international agreements, which are binding upon

signatory states and create the law among the parties thereto, if
widely accepted by many states, may be transformed into
customary law, in which case they bind even non-signatory
countries.
 SOURCES OF INTERNATIONAL LAW
Customary international law:
• They consist of acts, which by repetition by states of similar
international acts for a number of years, becomes the norm or
custom out of a sense of obligation.

• It develops from the practices of states, shown from official

governmental conduct, records of a state’s foreign and diplomatic
practices, official statements at international conferences and in
diplomatic exchanges, formal instructions to diplomatic agents,
national court decisions, legislative measures or other actions
taken by government to deal with matters of international
concern.
International custom as a source of international law
2 Requisites for custom to become customary international law:
1. The established, widespread and consistent practice on the
part of the States;
2. A psychological elements known as the opinio juris sive
necessitates (opinion as to law or necessity)

• As basis for customary international law, custom is a clear and

continuous habit of doing certain actions which has grown
under the aegis of the conviction that these actions are,
according to international law, that they are obligatory and
right.
• In the case of The Republic of Nicaragua v. The
United States of America (1986), the ICJ ruled in
favor of Nicaragua and against the United States.

• The ICJ held that the U.S. had violated

international law by supporting the Contras in
their rebellion against the Nicaraguan
government and by mining Nicaragua's harbors.
compensation.
The Court found in its verdict that the United
States was "in breach of its obligations under
customary international law not to use force
against another State",
"not to intervene in its affairs",
"not to violate its sovereignty", and
"not to interrupt peaceful maritime
commerce.”
NORTH SEA CONTINENTAL SHELF CASES
• These cases involved agreements among Denmark, Germany,
and the Netherlands regarding the "delimitation" of areas—
rich in oil and gas—of the continental shelf in the North
Sea.

• Germany's North Sea coast is concave, while the Netherlands'

and Denmark's coasts are convex. If the delimitation had been
determined by the equidistance rule ("drawing a line each point
of which is equally distant from each shore"), Germany would
have received a smaller portion of the resource-rich shelf
relative to the two other states. Thus Germany argued that the
length of the coastlines be used to determine the delimitation.
• Germany wanted the ICJ to apportion the Continental
Shelf to the proportion of the size of the state's adjacent
land and not by the rule of equidistance.

• Denmark and the Netherlands were parties to the 1958

Geneva Convention on the Continental Shelf. They
argued that the “equidistance-special circumstances
principle” in Art. 6 of this convention applied. The
Federal Republic of Germany had signed, but not
ratified this convention
• Denmark and the Netherlands contended that the
“equidistance-special circumstances principle”
had become a rule of customary international law.

• The ICJ did not share this view and stated that
this principle was not even in the process of becoming a
rule of customary international law.
• According to the ICJ, in the first place, it would be
necessary that the provision concerned should, at
all events potentially, be of a fundamentally
norm-creating character such as could be
regarded as forming the basis of a general rule of
law.
Although the passage of only a short period of time is not
necessarily, a bar to the formation of a new rule of
customary international law on the basis of what was
originally a purely conventional rule,
an indispensable requirement would be that within the
period in question, short though it might be, State
practice, including that of States whose interests are
specially affected, should have been both extensive
and virtually uniform in the sense of the provision
invoked; and should have occurred in such a way as to
show a general recognition that a rule of law or
legal obligation is involved
• The Court ultimately urged the parties to "abate the
effects of an incidental special feature [Germany's
concave coast] from which an unjustifiable difference of
treatment could result."

• In subsequent negotiations, the states granted to

Germany most of the additional shelf it sought. The
cases are viewed as an example of "equity praeter
legem"—that is, equity "beyond the law"—when a judge
supplements the law with equitable rules necessary to
decide the case at hand.
GENERAL PRINCIPLES OF LAW
• Legal principles common to major legal systems are
secondary sources of international law, but they may be
invoked as a rule of international law because it is a
general principle common to the major legal systems of
the world.

• This includes domestic legal systems like res judicata

and the notion of procedural due process, as well as
judicial decisions of international courts.
WRITING OF WELL KNOWN PUBLICISTS
AND SCHOLARS
• They show what is the approved usage of nations, or the
general opinion respecting their mutual conduct, with
the definitions and modifications introduced by general
consent.

• They are witnesses of the sentiments and usages of

civilized nations, and the weight of their testimony
increases every time that their authority is invoked by
statesmen.
EX AEQUO ET BONO
• According to equity and conscience.

• It is grounded on conscience and not on any sanction of

positive law. It is justice outside of legality.
• It is applied only in the absence of, and never against,
statutory law or judicial rules of procedure.
• Equity is available only in the absence of law and not its
replacement.
•But the ICJ may apply equity if the
parties to the dispute so agree. This
means the ICJ may disregard
international law in favour of equitable
considerations, if the parties agree that
the dispute be resolved on the basis of
equity and not on that of international
law.
FOUNDATIONS OF INTERNATIONAL
LAW
• International law is founded largely upon mutuality,
reciprocity and the principle of comity of nations.

• Mutuality or reciprocity is a term used to denote the

relation existing between two or more states when each
of them gives the subject of the other certain privileges,
on condition that its own subjects shall enjoy similar
privileges at the hands of the other state or states. The
Philippines requires that there be reciprocity laws for
such purpose.
There is reciprocity when, for instance,
foreign corporations, or those which have
been formed, organized and existing under
laws other than that of the Philippines,
cannot do business in the Philippines, unless
the laws of the country where they are formed
and organized allow Filipino citizens and
Filipino corporations to do business in their
own countries or states.
COMITY is neither a matter of absolute
obligation on the one hand, or of mere courtesy
and goodwill on the other; it is the recognition
which one nation allows within its territory to the
acts of foreign governments and their tribunals,
having due regard to both international duty and
convenience and to the rights of its own citizens
or of other persons who are under the protection
of its laws.
• In Sison v Board of Accountancy, was a petition to cancel the
license to practice accountancy issued by the Board, to a British
national, on the ground that Britain does not grant reciprocity
to Filipino citizens.
• Britain argues that even if there was no reciprocity law with
Britain, the record shows that the British Minister informed the
Philippine Republic that their government has no control of the
accounting profession in the United Kingdom.
• Nevertheless, qualified Philippine citizens are allowed to
practice the profession of accountancy in the UK.
• The Supreme Court ruled that under such
circumstances, and without necessarily
construing that such attitude of the British
government amounts to reciprocity, we may
at least state that it comes within the realm
of comity, as contemplated in our law.
OBLIGATORY FORCE OF INTERNATIONAL
LAW
• Justice and morality are important in international
intercourse of nations. International law are not
immutable rules of law. Any nation which chooses to
withdraw itself from the obligation of the law may do so
at the risk of incurring the penalty of vindictive
retaliation on the part of other nations, and putting
itself in general hostility with the civilized world.
• A nation cannot be an island. Refusal to
follow settled rules of international law will
not only entail political and commercial
repercussions, but will further isolate itself
from other nations.
SUBJECTS OF INTERNATIONAL LAW:
• States
• International organizations
• Non-state entities
• Belligerents/Insurgents
• National Liberation Movements
• International territories
• Special international status has been
granted to the Holy See and the Vatican
City and the Sovereign Order of Malta.
• Individuals
• Ethnic minorities
• Indigenous Peoples
• Principle of sovereign equality - all states
enjoy the same degree of international
legal personality.
• International law is primarily concerned
with the rights, duties and interests of
States.
• An international organization is an
association of States, established by a
treaty between two or more States.
• Their international legal personality is
limited to possessing specific rights and
duties.
• Their status is determined by conventions
among States and therefore, the
recognition of the international
personality of an international
organization is limited to signatory states
of the convention creating such
organization.
• Generally, the treaty creating a public
international organization indicates its
nature, purposes and powers.
• The international legal personality of an
international organization is therefore
limited to the rights, duties, purposes and
powers laid down in the treaty creating it.
• The attribution of an international legal
personality involved the capacity to
perform legal acts, to have rights and
duties and to enter into relations in the
international level.
• Non-State Entities – entities, which,
although not regarded as independent
Sates, are granted a degree of personality,
a definite and limited special type of
personality under international law.
• They can participate in international
conferences and enter into treaty relations
but their rights and duties are not the
same as those of the States. Their capacity
is limited to the purposes it exists and the
powers or functions it can perform are
limited.
Categories of non-state entities:
1. Members of composed states or federal
states.
• The federal state itself has an international
personality.
• The international personality of each unit
and its extent can only be determined by
way of the constitution of the State and
State practice.
• The constitution of a federation may grant
a component unit a special international
personality; however that personality will
not be operative on the international plane
without being recognized as such by other
States.
2. Insurgents and belligerents
• Insurgents are individuals who participate
in an insurrection against their
government.
• Belligerents are a body of insurgents who
by reason of their temporary organized
government are regarded as lawful
combatants conducting lawful hostilities,
provided they observe the laws of war.
• They can enter into valid arrangements on
the international plane with States,
international organizations and other
belligerents and insurgents.
• They are bound by the rules of
international law with respect to the
conduct of hostilities.
3. National Liberation movements.
• International legal status have been
conferred by states upon certain national
liberation movements.
• This is a result of anti-colonial actions
sponsored by the UN and regional
organizations.
• In 1974, the UN General Assembly
recognized international legal status on
Angolan, Mozambican, Palestinian and
Rhodesian movements and accorded them
observer status in its meetings.
• The Security Counsel of the UN permitted
the Palestine Liberation Organization to
participate in its debates with the same
right of participation as a member state
who is not a member of the Security
Council.
• National Liberation Movements have been
accorded a number of legal rights and
duties, the most significant of which is to
conclude binding international
agreements with other international legal
persons, the capacity to participate in the
proceedings in the UN and the rights and
obligations of the International
Humanitarian Law.
4. International territories
• This refer to territories placed under a
variety of international legal regimes,
including those administered by the UN
under the trusteeship system or other
special arrangements.
• The UN established the trusteeship system
to enable the UN or a State to administer
certain territories pending independence,
• Special Case Entities – the Sovereign
Order of Malta and the Holy See and
Vatican City.
• The Sovereign Order of Malta was
established during the Crusades as a
military and medical association. The
Sovereign order was estrusted to rule
Malta.
 The Order already had international
already had international personality at the
time of its taking control of Malta and even
had to leave the island it continued to
exchange diplomatic relations with most
European states. Today, the Order
maintains diplomatic relations with over
forty States.
• The Holy See is the international legal
person of the Roman Catholic Church. It
is not a State in the normal sense of the
word. It is a unique person of internal law
because it combines the feature of the
personality of the Holy See as a religious
entity with its territorial base in the
Vatican City.
• The Holy See has no permanent population of its
own. Its sovereign territory consists of only about
one hundred acres granted to it by Italy.
• Nevertheless, the status of the Holy See as an
international person is accepted by a number of
States.
• The Holy See exchanges diplomatic representatives
with other States, enter into bilateral treaties and is
a party to many multilateral treaties.
 5. Individuals
In the Twentieth Century, International
Law became concerned again with individuals.

The Hague initiated the concern in view of

prisoners of war and the wounded. During the
Second World War, the trend was towards
attaching direct responsibility to individuals for
crimes committed against peace and security.
The Charter of London of 1943, issued by the Allied
Powers established the individual responsibility for
committing war crimes, crimes against humanities
and crimes against peace.
On this basis, after the Second World War, the
German leaders were brought to trial before the
Nuremberg International Tribunal where the guilt
of the German leaders was established.
• The Charter of the Nuremburg International
Tribunal of 1945 provided specifically for
individual responsibility for crimes against peace,
war crimes and crimes against humanity, The
Tribunal pointed out that “international law
imposes duties and liabilities upon individuals as
well as upon states” and this was because “crimes
against international law are committed by men,
not by abstract entities.”
 “And only by punishing individuals who commit
such crimes can the provisions of international law
be enforced.”
The principles of the Charter of the Nuremberg
Tribunal and the decisions of this tribunal were
affirmed by the General Assembly of the United
Nations in 1946, thus making them part of the
International Law.
• In 1946, the General Assembly also said
that genocide is a crime under
International Law bearing individual
responsibility; and this was reaffirmed
in the Genocide Convention of 1948.
• Individual responsibility was also confirmed
with regard to grave breaches of the Four Geneva
Conventions of 1949 and the Additional
Protocols I and II of 1977, which deal with armed
conflicts (International Humanitarian Law).
• The Geneva Conventions and their
Additional Protocols are international
treaties that contain the most important
rules limiting the barbarity of war. They
protect people who do not take part in the
fighting (civilians, medics, aid workers)
and those who can no longer fight
(wounded, sick and shipwrecked troops,
prisoners of war).
• The Geneva Conventions and their
Additional Protocols are at the core of
international humanitarian law, the body
of international law that regulates the
conduct of armed conflict and seeks to
limit its effects.
• The Conventions and their Protocols call
for measures to be taken to prevent or put
an end to all breaches. They contain
stringent rules to deal with what are
known as "grave breaches". Those
responsible for grave breaches must be
sought, tried or extradited, whatever
nationality they may hold.
 On this basis, two specific international war
crimes tribunals were established, one for the
former Yugoslavia in 1993 ( International Tribunal for the
Prosecution of Persons Responsible for Serious Violations of
International Humanitarian Law Committed in the Territory of the
Former Yugoslavia since 1991) and one for Rwanda (The
International Criminal Tribunal for Rwanda), to prosecute
persons responsible for the serious violations of
International Humanitarian Law committed in the
territory of each of these countries.
 The events in the former Yugoslavia and
Rwanda impelled the renewal of the international
concern for the establishment of a permanent
international criminal court, which had long been
under consideration.
In 1998, the Rome Statute of the International
Criminal Court was adopted at the United Nations
Diplomatic Conference.
• The Statute provides that the jurisdiction of the
Court is limited to “the most serious crimes of
concern of the international community as a
whole” which are the crime of genocide, crimes
against humanity, war crimes and the crime of
aggression, and that “A person who commits a
crime within the jurisdiction of the Court shall
be individually responsible and liable for
punishment”
After the Second World War, International law also
became concerned with individuals in the field of
human rights and the fundamental freedoms.
The Charter of the UN started this trend by calling
upon member states to observe human rights and
fundamental freedoms for individuals and people.
• Since then, several conventions have been
concluded to define human rights and
fundamental freedoms which individuals
and peoples are entitled to and to ensure
their respect and protection. Among these
conventions are the International
Convention on Civil and Political Rights of
1966, and the International Covenant on
Economic, Social and Cultural Rights of
1966.
• In order for individuals to be able to obtain
legal standing to assert violations of these
treaties, in the absence of the protest by the
State of nationality, the following treaties have
enabled individuals to have direct access to
international courts and tribunals: The
European Convention of Human Rights of 1950;
the American Convention on Human Rights of
1969, the International Convention on the
Elimination of All Forms of Racial
Discrimination of 1966 and others.
 Contemporary International Law has
recaptured the concern for individuals, and
individuals have become recocgnized as
participants and subjects of this lar. This has
occurred primarily through the evolution of the
Human Rights Law and Humanitarian Law
coming together with the evolution of the
Traditional International Law.
6. Minorities
• The problem of protecting national minorities in
Europe confronted the League of Nations after the
First World War.
• After the Second World War, individual members
of ethnic, linguistic and cultural minorities were
granted the right to have their identity and
language respected by the State as part of the
process of the development of human rights in
general.
• Ethno-nationalism rose after the collapse of the
Soviet Union in 1991. It brought back the status
of ethnic minorities and other groups in
International Law to be an important issue.
• Efforts to improve the legal protection of
minorities have been made.
• On the Global level, there is the UN Declaration
on the Rights of Persons Belonging to National,
or Ethnic Religious and Linguistic Minorities of
1992.”
7. Indigenous Peoples
Examples are the Aboriginal race of Australia; the
American Indians; the Eskimos and the Maori in New
Zealand.
Their rights have not been internationally recognized,
similar to minorities.
They are not yet subjects of International Law in any
meaningful sense as they have not achieved
international legal personality. But individual
members of them are guaranteed their rights.
STATES
STATE

A state is the traditional subject of

international law.

Before a state may qualify as a subject of

international law, it must meet a minimum of
requirements.
A state must have people permanently occupying a
fixed territory; a government; control over things and
persons within its boundary; capable of making war
and peace; and of entering into international relations
with other countries.

Of these characteristics, the most important under

international law are its capability of making peace,
and its legal capability of entering into international
relations with other communities of the globe.
The people permanently occupying a fixed territory refer
basically to citizens or nationals of said country.

Citizenship or nationality is determined by domestic law.

This concept is important in international law because the
citizen provides the link between himself and his country,
between himself and his country on the one hand, and
international law on the other hand.
 A state is bound to extend assistance to its
citizens within and outside of its territory, which, if
done, may involve international law or diplomacy
problems with the country where they are sojourning at
that time.
The case of Mary Jane Veloso who was sentenced
to death for smuggling heroin to Indonesia. Her case
sparked international attention towards Indonesia’s
capital punishment and drug prohibition laws.
 TERRITORY
A sovereign state may acquire territory by
seceding from its mother state, such us by
revolution, like the US from Great Britain, and
successfully proclaiming itself as a sovereign state;
or by peaceful means, with the consent of the
mother state, as when Russia was fragmented into a
number of separate and independent states.
A state must have a fixed territory consisting of a
portion of the earth’s surface. This is necessary s
so that the area of the State may be determined.
Changes in the area of the State, whether due to
annexation of additional territory or a voluntary
or forced cessation do not affect its territorial
personality.
 GOVERNMENT
To constitute a state, the inhabitants must have
an organized government exercising control, and
maintaining law and order within the territory.
The reason is that there must be an entity that can
be held internationally responsible for the acts of
the inhabitants of the country.
The identity of the State in international law is not
affected by changes in government, whether brought about
legally or illegally by revolution or coup d’etat.
 SOVEREIGNTY

A state’s control over all persons and things

within its boundaries and territorial jurisdiction
refer to the exercise of its sovereign power.
 SOVEREIGNTY

Sovereignty means freedom from outside

control in the conduct of internal and external
affairs. But since the focus of international law
is on the relations of States inter se, the only
aspect of freedom that is material is the
capacity of a State to deal with other States free
from external restraint.
 RECOGNITION

Some writers consider recognition as an

additional condition which must be satisfied before
a State is deemed to exist in the eyes of
international law.
Recognition comes about by a unilateral
declaration of a State and it can be implicit or
explicit.

For a State to exist in the international community,

it must be recognized by other States.

Once recognition is given, it implies that the

recognized State or government is entitled to the
rights and privileges granted by international law.
Recognition of government is different from
recognition of State.
A State is recognized when an identifiable
government, people and government first comes
into existence.
If the government changes later, it may not be
recognized even though the recognition of the
State continues.
States are considered as the principal persons in
International Law.

According to International Law, recognition is the

formal acknowledgment of the status of an
independent State by other existing States.
Every State has to have some essential features, or
the attributes of Statehood, in order for other States
to recognize the State as independent.
Recognition is not a conclusive proof of the
existence of a State.

The recognition of a State is often a political act

of a State.

Such political act involves the application of the

political question doctrine.
WHAT IS THE POLITICAL QUESTION DOCTRINE?

A "political question" doctrine comes about by reason

of the principle of separation of powers of the
government.
Under such doctrine, the Judicial Branch of the
government cannot decide questions "in regard to
which full discretionary authority has been delegated
to the legislative or executive branch of the
government" (Tañada vs. Cuenco 103 Phil.1068).
If an issue is clearly identified by the
text of the Constitution as matters for
discretionary action by a particular branch
of government, or to the people
themselves, then it is held to be a
political question.
An example of a political question is in the matter of the
power of appointment to the executive branch of the
government. There is no question that it is executive in
nature (Gov’t vs. Springer 50 Phil. 259).
It is essentially a discretionary power of the president
performed according to "his best lights". (Luego vs. CSC
143 SCRA 327).
The issue cannot be taken up in court on judicial review.
The selection of the appointee–taking into
account the totality of his qualifications,
including those abstract qualities that define his
personality – is the prerogative and a matter
addressed solely to the discretion of the
appointing authority (Lapinid vs. CSC 197 SCRA
106) and the Courts cannot be enjoined to
nullify the selection by way of a judicial review.
TYPES OF RECOGNITION

1. Recognition of State

2. Recognition of Government
WHAT IS THE DIFFERENCE BETWEEN
RECOGNITION OF STATE AND
RECOGNITION OF GOVERNMENT?

The tree is the State.

The leaves are the government.

 The tree is the State. The leaves are the
various branches of government.
While governments (leaves) may come and
go, the State (tree) remains.
Once recognition is given to a State, the
recognition cannot be withdrawn.
Recognition of government may be lawfully
withheld or withdrawn.
For example: Saudi Arabia and the United Arab
Emirates withdrew their recognition of the
Afghanistan Taliban government when it refused
to surrender Osama Bin Ladin in the aftermath
of the events of September 11, 2001.
 THEORIES OF RECOGNITION

1. CONSTITUTIVE THEORY

2. DECLARATIVE THEORY
CONSTITUTIVE THEORY – according to
this theory, recognition is a necessary
condition for statehood and international
personality. It is a process by which a
political community acquires personality and
becomes a member of the family of nations.
A State comes into existence by recognition
only and exclusively.
Declarative theory – this theory states that
declaration is a mere formality and has no legal
effect as the existence of the State is a mere
question of fact.
Every new State becomes a member of the family
of nations ipso facto by its coming into existence.
Recognition only provides the evidence to this
fact. This theory says recognition is not
important.
STATES RECOGNIZED THROUGH THE
CONSTITUTIVE THEORY
1. Poland and Czechoslovakia were recognized by the
instrumentality called the Treaty of Versailles.
2. Germany was divided into two parts after World War II
3. Korea was divided into two spheres of influence - a
Communist, northern half and an American-occupied
southern half, divided at the 38th parallel. The Korean War
(1950-1953) began when the North Korean Communist
army crossed the 38th Parallel and invaded non-
Communist South Korea.
RECOGNITION OF STATE THROUGH THE DECLARATIVE
THEORY

The government of the People's Republic of China (PRC)

opposes treating the Republic of China (ROC) as a legitimate
state and portrays Taiwan as a rogue province of the PRC.
Taiwan is a democratic country. Only a few countries recognize
Taiwan yet it has business dealings with almost every country.
SIGNIFICANCE OF RECOGNITION OF
STATE

1. To obtain equality status with other

members of the international community;
2. To acquire international rights and to be
able to contract international obligations;
3. To engage in international relations
Types of Recognition of State:

1. Expressed Recognition

2. Implied Recognition

3. Collective Recognition

4. Premature Recognition
EXPRESS RECOGNITION

An existing State recognizes another State by

releasing a public statement by way of notification
or a declaration announcing the intention of
recognition.

The grant is expressed in written words.

It can be by way of letters/notes, statements,
telegrams.

Example: The statement of the French President to

recognize the independence of Algeria on July 3, 1963.

Or it can be by way of an international treaty.

Example: Japan recognized Korea via Art. 12 of

the Peace Treaty on September 8, 1951.
IMPLICIT RECOGNITION
The State does not release a formal statement but it
recognizes the State by some other acts which imply
that the State is being recognized. This can be done
by:
• Sending a diplomatic agent;
• Having talks with an official or its head of State;
• Entering into an agreement with the said State.
Example of an implicit recognition:

The Prime Minister of Israel, Shimon Perez, visited

Morocco on July 21, 1986 and had a talk with King
Hassan II for the first official talks between an
Israeli leader and an Arab head of state in eight years.
COLLECTIVE RECOGNITION

Via an international treaty or multilateral

conferences.

Example: Five ASEAN countries, on April

18, 1975, recognized Cambodia.
PREMATURE RECOGNITION

Recognition given to the State even if the said

State has not completed constitutive
components (like it still has no constitution,
the territorial borders are not yet clear.)
Example: The recognition given by a number
of States to the unilateral declaration of
Palestinian statehood.
TYPES OF RECOGNITION

1. De facto recognition
2. De jure recognition
3. Recognition of belligerency
4. Recognition of national liberation movement
DE FACTO RECOGNITION

This is a provisional recognition given to a State. It

is not permanent in the sense that recognition can be
withdrawn by other States at any time.
It is the first step towards becoming a recognized
State.
The recognition is only by fact. No exchange of
diplomatic representatives takes place.
DE JURE RECOGNITION

This is a permanent recognition which, once

granted, cannot be taken back or withdrawn by other
states.
These kind of States have only one government, the
State exchanges diplomatic representatives with
other States; State succession happens smoothly.
Recognition by a majority of States is essential for
membership at the UN.
RECOGNITION OF BELLIGERENCY

Under such a situation, a belligerent group seizes

power in its own country or takes a portion of it.
A belligerent group has a de facto power.
Example: France and Mexico officially recognized a
leftist guerrilla movement (the revolutionary armed
forces of Colombia) that have fought several years
against the Colombian government.
RECOGNITION OF NATIONAL LIBERATION
MOVEMENTS

This kind of recognition is not yet applied universally.

Western countries such as the US and the UK still
reject this type of recognition.
Example: The recognition of the Palestinian
Liberation Organization (PLO) through UN
Resolution No. 3237 dated November 22, 1974, the
UN gave the PLO the right to be a permanent UN
observer.
RECOGNITION OF GOVERNMENT
When a government is recognized, it is considered by
the one according recognition as possessed of the authority to
represent the State it purports to govern.

The government whose recognition is sought should

satisfy certain minimal requirements.
 First, the government must be effective and stable. It
should be in possession of the machinery of the State and without
substantial resistance to its authority.
Second, the government must show willingness and ability
to discharge international obligations.
Third, the government should enjoy popular consent or
approval of the people.
 Distinction between de facto and de jure recognition
1. Recognition de facto is provisional and limited to certain
juridical relations whereas de jure recognition is relatively permanent.
2. De facto recognition does not, as a rule, bring about either
full diplomatic relations or the conferment of diplomatic immunity
upon its representatives. The opposite is true of de jure recognition.
3. De facto recognition does not give title to assets of the State
held or situated abroad; recognition de jure does.
Who has the authority to recognize?
Recognition of a foreign government or State is a matter
within the discretion of the political department of the
government, the legality and wisdom of recognition
accorded any foreign entity is not subject to judicial review.
The courts are bound by the acts of the political department
of the government.
 WHAT IS THE MONTEVIDEO CONVENTION ON THE
RIGHTS AND DUTIES OF STATES

This refers to a Convention on the Rights

and Duties of States which resulted in treaty
signing at Montevideo, Uruguay, on December
26, 1933, during the Seventh International
Conference of American States.
The Convention codified the declarative
theory of Statehood, as accepted as party of
customary ternational law.
 The majority of the delegates at that
Convention represented independent states
from former colonies. In most cases, their
own existence and independence had been
disputed, or opposed, by one or more of the
European colonial empires.
The agreed among themselves on the
criteria by which dependent states with
limited sovereignty can gain international
recognition.
The convention set out the definition, rights and
duties of statehood. Most well-known is Article 1,
which created the four criteria for statehood that
have been recognized by international
organizations as an accurate statement of
customary international law. It provided that 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.
Article 3 of the treaty explicitly states that:

"The political existence of the state is

independent of recognition by the other
states." (Declarative theory of statehood)
It stands in conflict with the alternative
constitutive theory of statehood, which
provides that state exists only insofar as it is
recognized by other states.
 Article 4 States are juridically equal,
enjoy the same rights, and have equal
capacity in their exercise. The rights of each
one do not depend upon the power which it
possesses to assure its exercise, but upon
the simple fact of its existence as a person
under international law.
Article 11 The contracting states definitely
establish as the rule of their conduct the
precise obligation not to recognize
territorial acquisitions or special
advantages which have been obtained by
force whether this consists in the
employment of arms, in threatening
diplomatic representations, or in any other
effective coercive measure.
 The territory of a state is
inviolable and may not be the object
of military occupation nor of other
measures of force imposed by another
state directly or indirectly or for any
motive whatever even temporarily.
STATE FORMATION AND RECOGNITION IN
INTERNATIONAL LAW
States play a primordial role in the structure of legal relationships that
are commenced, modified or extinguished at an international level.
In the field of international relations, the means by which states
act and interact should be governed by principles such as
sovereignty and equality. In reality, some states decide to act in a way
dictated by geopolitical dynamics, that is, the power or influence held
and through which their interests could be enforced at regional or
global level. Thus, depending on each state’s interests, massive
inconsistencies can exist between the strategies that are carried
out. One of the most elementary instruments used in diplomacy is the
mechanism of recognition.
 State recognition has an important place in international
law. Without recognition, a state's capability to enter
relations with another state is greatly limited due to its
isolation from the international community. Two opposing
theories have been developed to explain and order the
admission of states into the international community.
 First, the Constitutive Theory embraces the opinion that any
state completes its formation through recognition by other
states. Recognition is thus seen as a requirement for
statehood, but no state can be forced to recognize another.
This discretionary nature of state recognition arguably turned
the international community into an elite club of nations lead
by the Great Powers.
Second, the Declarative Theory came as a response to the
constitutive conception, ruling out the necessity of
international recognition as a condition for statehood, and
introducing unbiased standards codified as the Montevideo
Criteria.
 2. Statehood and sovereignty
Statehood designates the feature of an entity that exists in the
international community and respects the Montevideo Criteria.
In an attempt at defining the legal and political notion of state,
the Convention signed at Montevideo in 1933 established that a
state must consist of “(a) a defined territory; (b) a permanent
population; (c) a government; and (d) the capacity to enter into
relations with other states”.
The concept of sovereignty describes the supreme political
authority that wields power inside and upon a given territory and
the population that inhabits it, while also being able to enter into
relations with other sovereign and independent states,
independently of any exterior influence.
 For this reason, the latter two conditions imposed by the
Montevideo Criteria are, in fact, two sides of the same coin,
correspondingly internal and external sovereignty. Thus, a state has
to establish and maintain the legal (rule of law) and political order
(democracy) on an internal level, while in the international community
it can exercise rights and fulfil duties, as any other international legal
person and in accordance with international treaty provisions.
Although the Montevideo Criteria were agreed between American
states, and not by the entire international community, this definition of
statehood was only formally recognised as it was already observed
prior to the 1933 Convention.
 Similar criteria were used by the Badinter Committee (the
Arbitration Commission of the Conference on Yugoslavia) in
1991 when it concluded: "that the state is commonly defined
as a community which consists of a territory and a population
subject to an organized political authority; that such a state
is characterized by sovereignty”.
3. Types of recognition in international law
Although recognition is primarily applicable to states, certain
circumstances exist when these international legal subjects can
choose to use particular forms of recognition in relation to various
political reasons. In this regard, many forms can be distinguished
depending on the chosen criteria. From a strictly legal point of view,
recognition could be either legal (de jure) or factual (de facto). At the
same time, recognition can be express or tacit. Nonetheless, states
practice limited types of recognition as well, such as government or
diplomatic recognition, respectively.
 3.1 De jure and de facto recognition
Throughout history, there have been cases where a great number of states
refused to de jure recognise a particular country on ideological
grounds. Nonetheless, such a state gained de facto recognition and thus
established relations with other states.
An example would be the Soviet Union, which was established in 1917, de
facto recognised by the UK Government in 1921, but not formally (de jure)
recognised until 1927.
Another example is the Republic of China (Taiwan) and its dispute with the
People’s Republic of China. In this case, Taiwan enjoyed worldwide
recognition and held a seat as a permanent member of the UN Security
Council until 1971, when UN member states ceased to de jure recognise the
Republic of China and recognised the People’s Republic of China (only
de facto recognised until then) instead.
 3.2 Express and tacit recognition
Existing states can choose to recognise a new state either
explicitly, through an official declaration, or tacitly, by any means
from which it can be implied that the new state would be treated as
any other international legal person.
For instance, a tacit type of recognition could be in the form of
sending a diplomatic mission (with the acceptance of credentials) or
even signing a bilateral treaty.
However, not all bilateral treaties imply recognition and neither do
multilateral treaties. In fact, the United Nations Charter is a prime
example, in that many of its signatories do not recognise all other
members, so the process of implied recognition should be studied on
a case by case basis.
 3.3 Government recognition
In cases of internal conflict or disturbances (civil war, revolution or a coup d’état), the
international community can find itself in the position to recognize the authority of a
faction or entity over a previously-recognised state. This type of recognition concerns
not the state itself, as it was already recognised as an international legal subject, but
the government and its power within the given state’s territory. A particular problem
arises in the case of governments-in-exile, which are only de jure recognised as such, while
in fact the territory and population of the state are under the authority of another entity.

When a state recognises a certain government, in doing so it expresses its will to treat that
particular entity as the sole political authority of the respective state. Once a certain state
is governed by an entity that is realistically considered to be capable of maintaining
stability in terms of being supported by a clear majority of the population and also
exerting control over most of the state’s territory, it should be granted recognition.
However, such a practice was discontinued in recent times, with the governments of
the United Kingdom, Australia, Canada and several civil law countries across Europe
cited as examples.
 3.4 Diplomatic recognition
In some cases, state recognition can be independent of full-
fledged diplomatic relations, which usually refers exclusively to the
bilateral ties between two countries.
In other words, if a state cannot be granted full formal recognition by
the international community, its relations with individual states can be
either interrupted or resumed due to diverse reasons.
An example could also be the case Taiwan, which lost its UN
membership and is no longer recognised de jure by the international
community.
Notwithstanding, Taiwan continues to meet the criteria for
statehood established at Montevideo and enjoys de facto
recognition through cultural and trade relations with other states.
However, the People's Republic of China wields greater economic
influence on the world stage and has thus conditioned its
diplomatic relations with other states by the immediate
termination of any formal recognition or diplomatic mission of
these states in the case of Taiwan.
 3.5 Withdrawal of recognition
One particular issue in terms of recognition would be its
withdrawal. It has been argued that such a feat would be
much easier accomplished in cases of factual recognition
rather than full-fledged, de jure recognition.
In this regard, the withdrawal of recognition is, at least in the
circumstance of de jure recognition, an exceptional event that
can occur whenever a state considers that such an action is
appropriate.
 4. Constitutive theory of statehood
State recognition has been initially founded on the Constitutive
Theory of Statehood, of which its essence could be traced back as
early as 1815, at the Peace Congress of Vienna; the final act of this
congress recognised only 39 sovereign states in Europe, and it also
established that any future state could be recognised as such only
through the acceptance of prior existing states.
The reason for such a distinction between the already established
states and any future claim of statehood was argued to reside in
the “historical longevity” of the former.
According to this theory, a state is considered to be a legal
international person only if it is recognised as sovereign by other
states.
 In this respect, L.F.L. Oppenheim considered that “International
Law does not say that a State is not in existence as long as it
isn't recognised, but it takes no notice of it before its
recognition. Through recognition only and exclusively a State
becomes an International Person and a subject of International
Law”.19 Such constitutive views were also found in the works of
Hegel, which claimed that every state “is sovereign and
autonomous against its neighbours, [being] entitled in the first
place and without qualification to be sovereign from their point of
view, i.e. to be recognized by them as sovereign”, while also
admitting that “recognition […] is conditional on the neighbouring
state’s judgement and will”.
 On the other hand, this discretionary prerogative
should have its limitations. Kelsen was of the opinion that "a
state violates international law and thus infringes upon the
rights of other states if it recognizes as a state a community
which does not fulfill the requirements of international
law". However, the opposite of this could also be possible: a
state refusing to recognise another even if it does fulfill the
criterion for statehood. For this reason, Lauterpacht proposed
that states have a legal duty to recognise one another when
the conditions of statehood exist, although Kelsen denied the
notion of any such duty.
 The weaknesses of this theory include the case in which recognition of
a particular state is not unanimous. In this instance, a rigid
application of the constitutive principle would mean that the
respective state would not be a subject of International Law, which in
turn would hold back its capacity to assume rights and obligations in
the resemblance of other states that are recognised. However,
Lauterpacht considered that the constitutive theory “deduces the legal
existence of new States from the will of those already established.”
In the absence of a body responsible for observing and subsequently
declaring that a certain state meets the conditions for statehood,
Lauterpacht believed that the already established states are ought to
“administer the law of nations”, without being “entitled to serve
exclusively” their national interests.
 5. Declarative theory of statehood. While the constitutive theory
gained ground and dominated international law since 1815, it only
lasted until the shift in geopolitical dynamics that marked the
beginning of the 20th century. At the end of the previous century,
a great number of European nations became independent – Germany,
Italy, Romania – and the First World War (1914-1918) led to the further
emergence of sovereign states in Europe – Poland, Yugoslavia,
Czechoslovakia – with the establishment of British or French
mandates in some areas after the partition of multinational
empires such as Austria-Hungary or the Ottoman Empire. However,
the speech delivered by US President Woodrow Wilson on his Fourteen
Points propagated the concept of self-determination, with direct
consequences for the international order.
 In Wilson’s conception, the lack of self-determination has been at
the centre of Europe’s turbulent history. The Great Powers, such as
Britain and Austria, have previously resisted any attempt to partition
the Ottoman Empire, fearing that the resulting independent states
would be small and too fragile, potentially easy targets for
annexation and could, thus, undermine the long-established
international order based on the balance of power.
 The Wilson doctrine has arguably marked the end of Pax
Britannica and paved the way for greater US influence on the
world stage. In response to these changes, the constitutive
theory lost its pre-eminence in favour of a new conception –
the declarative theory of statehood. While the constitutive
theorists claimed that recognition is a requirement for
statehood, the declarative conception established by the
1933 Convention of Montevideo challenged such an idea;
according to article 3 of this treaty, statehood does not
depend on recognition by other states.
• The declaratory model argues that a state does not obtain
international legal personality through the consent of
others, so therefore the recognition of a state signifies
nothing more than the admission of a factual situation.28
While the common practice among states was argued to be
somewhere in the middle of these two theories, the
declarative conception is much closer to the current model29
followed by the international community as it is also
enshrined in the rules contained in the Montevideo
Convention and reiterated by the Badinter Commission.
FUNDAMENTAL RIGHTS AND DUTIES OF
STATES
FIRST FUNDAMENTAL RIGHT:
INDEPENDENCE
It is generally accepted that the common core
of fundamental rights and duties of States may
be represented by the right to independence,
sovereignty, equality, and self-preservation.
An entity that cannot fulfil the test of
legal independence shall not be
considered as having an international
legal status altogether, let alone
external sovereignty or independence.
SECOND FUNDAMENTAL RIGHT:
SOVEREIGNTY
It is closely related to independence.
According to long-standing international
law practice, ‘sovereignty in the relations
between States signifies independence’ and
‘independence in regard to a portion of the
globe is the right to exercise therein, to the
exclusion of any other State, the functions
of a State.
Island of Las Palmas claim

The United States (P) and the

Netherlands laid claim to the ownership
of the Island of Las Palmas. While the
U.S. (P) maintained that it was part of
the Philippines, the Netherlands (D)
claimed it as their own.
 The claim of the U.S. (P) was based on their
allegation that the islands had been ceded by
Spain by the Treaty of Paris in 1898, and as
successor to the rights of Spain over the
Philippines, it based its claim of title Spain’s
discovery of the island. On the part of the
Netherlands (D), they claimed to have possessed
and exercised rights of sovereignty over the
island from 1677 or earlier to the present.
 MODES OF ACQUIRING TERRITORY
The traditional modes of acquiring
territory of a state are:

(a) discovery, (e) annexation,

(b) occupation, (f) conquest,
(c) prescription, (g) accretion and
(d) cession, (h) avulsion.
 Discovery is the oldest method of
acquiring title to territory. However,
discovery alone would not suffice to
establish legal title. It is necessary that
the discovered area must be physically
occupied.
 Occupation is the intentional
acquisition by a state over a
territory which at the time of claim
not under the sovereignty of any
state.
 There are two requirements: (1) the
territory subject of claim must not be under the
sovereignty of any state (terra nullius); and (2)
the state must have effectively occupied the
territory, that is, the state claiming the territory
must have exercised immediate occupation
(corpus occupandi) on the territory after it
displayed its intention to occupy (animus
occupandi).
 There are two elements of effective
occupation. One is the intention and will to
act as sovereign, and two is the peaceful and
continuous display of state authority. The
intention can be displayed from the simple
fact of publishing notices of sovereignty in
various state journals or issuing laws on
territorial assertions. The display of state
authority must be peaceful and continuous.
ISSUE: Can a title which is inchoate prevail
over a definite title found on the continuous
and peaceful display of sovereignty?

No. A title that is inchoate cannot prevail over

a definite title found on the continuous and
peaceful display of sovereignty. The peaceful
and continuous display of territorial
sovereignty is as good as title.
 Discovery alone without subsequent act
cannot suffice to prove sovereignty over the
island. The territorial sovereignty of the
Netherlands (D) was not contested by
anyone from 1700 to 1906. The title of
discovery at best an inchoate title does not
therefore prevail over the Netherlands (D)
claims of sovereignty.
 Evidence of contracts made by the East
India Company and the Netherlands (D) was
examined by the arbitrator. The claims made
by the Netherlands (D) were also based on the
premise of the convention it had with the
princes and native chieftains of the islands.
Hence, at the time of the Treaty of Paris in
1898, Spain was found not to have dominion
over the island.
WHAT IS INCLUDED IN THE RIGHT TO
SOVEREIGNTY?
Among the implications of the right to
sovereignty, is the corresponding
prohibition to intervene in matters within
the domestic jurisdiction. Accordingly no
State or group of States has the right to
intervene, directly or indirectly, for any
reason whatsoever, in the internal or
external affairs of any other State.
 This has particular reference to armed
intervention and all other forms of
interference or attempted threats against
the personality of the State, the use or the
encouragement of economic, political, or
any other type of measure to coerce
another State in order to obtain the
subordination of the exercise of its
sovereign rights, and to secure from it any
kinds of advantages
 THIRD FUNDAMENTAL RIGHT:
EQUALITY
According to the right to equality (or equal
treatment), all States occupy the same position
within the international community, they have
the same legal capacity, and bear equal rights
and duties regardless of their size or power.
The rule which provides that no State can
legitimately claim jurisdiction over another
State, constitutes one specific application of
this principle.
 Pursuant to such a rule, in fact, in
particular, States are granted a significant
degree of immunity from the jurisdiction of
foreign courts on the basis of the idea that a
State—at least as far as its acta iure imperii
(acts by right of dominion) are concerned—
cannot be legitimately judged by one of its
peers.
FOURTH FUNDAMENTAL RIGHT:
SELF-PRESERVATION
There is widespread consent that the right of
every State to self-preservation and the
corresponding duty not to prejudice the
preservation of other States is to be included
among the ‘basic’ or ‘fundamental’ rights.
All publicists are unanimous in recognizing that
States have the right, to take such steps as are
deemed necessary for self preservation and
defense.

This right gives rise to important questions,

namely: May a State oppose the increase of military
power of another State?
May a State ask another State for an explanation of
an increase in its army or navy, which the first
State may consider excessive?
 The right of self-preservation, which
would seem to be the most innocent, the
most peaceful of rights, may become one
of the most aggressive.
OETJEN V CENTRAL LEATHER COMPANY

This case is with regards to two large consignment of hides.

Oetjen basis his claim on the fact that in 1914, Carranza was
the first President of the new Mexican republic. Gen.
Francisco Villa was a commissioned military commander.
He imposed a military contribution and in the process, seized
some hides, which was then owned and possessed by a
citizen of Mexico.
Finnegan-Brown Company, a Texas Corporation, purchased
the hides seized by Villa. The Central Leather Company, in
turn, purchased the hides from Finnegan-Brown and brought
them to New Jersey.
Oetjen, who claims to be the assignee of the hides, originally
owned by Martinez and Co. of Torreon, Mexico, filed a suit
for replevin against the Central Leather Co. Oetjen
contends that the claim of Central Leather is not valid since
it is based on a purchase from General Villa, who confiscated
them contrary to the provisions of the Hague Convention of
1907.
Moreover, the hides were seized by the Carranza
government, which was then engaged in a civil war.
ISSUE: Was the seizure valid?
When a government which originates in revolution, is
recognized by the political department of the US
(where the case was filed), as a de jure government of
the country in which it is established, such recognition
is retroactive in effect and validates all actions and
conduct of the government so recognized, from the
commencement of its existence.
Every sovereign state is bound to respect the
independence of every other state and the courts of
one country will not sit in judgement on the acts of the
government of another done within its territory.
Redress of grievances by reason of such act must
be obtained through the means open to sovereign
powers as between themselves.
Hague Conventions, which is the first formal
statements of the laws of war and war crimes in
international law, do not apply to a civil
war, and the regulations annexed to the
Convention of 1907 do not forbid such a military
seizure and sale of private property as is involved
in this case.
Article on secession of Quebec is part of the exam