Public International Law

By
DO Rodolfo M. Elman
Ateneo de Davao Law School
 Syllabus in
Public International Law
1. Concepts
a. Obligations Erga Omnes
b. Jus Cogens
c. Aeguo Et Bono
2. International and National Law
3. Sources
4. Subjects
a. States b. International Organizations
c. Individuals
5. Diplomatic and Consular Law
6. Treaties
7. Nationality and Statelessness
7. Nationality and Statelessness
>Vienna Conv. on the Law of Treaties
8. State Responsibility
>Doctrine of State Responsibility
9. Jurisdiction of States
>Territoriality principle
>Nationality principle & statelessness
>Protective principle
> Universality principle
> Passive personality principle
>Conflicts of jurisdiction
10. Treatment of Aliens
a. Extradition
1. Fundamental Principles
2. Procedure
3. Distinguished from Deportation
11. International Human Rights Law
a. Universal Declaration of Human Rights
b. International Covenant on Civil and Political
Rights (ICCPR)
c. International Covenant on Economic, Social and Cultural Rights
(ICESCR)
12. International Humanitarian Law and Neutrality
a. Categories of armed conflicts
i. International armed conflicts
ii. Internal or non-internal armed conflict
iii. War of national liberation
b. Core international obligations of states in Int’l Humanitarian Law
c. Principles of Int’l Humanitarian Law
1.Treatment of civilians
2. Prisoners of war
d. Law on neutrality
13. Law of the Sea
a. Baselines
b. Archipelagic states
i. Straight archipelagic baselines
ii. Archipelagic waters
iii. Archipelagic sea lanes passage
c. Internal waters
d. Territorial sea
e. Exclusive economic zone
f. Continental shelf
g. International Tribunal for Law of the Sea
14. International Environment Law
> Principle 21 of Stockholm Declaration
 General Principles
• Nature and scope
• Distinctions between PIL and Municipal Law (monists
and dualists’ views)
• Relation of PIL to Municipal Law:~ ~Doctrine of
Incorporation – the law of nations, although not
specially adopted by the Constitution or any municipal
act, is essentially part of the law of the land.
~Doctrine of Transformation – the rules of
international law are not per se binding upon the
state but must be embodied in legislation.
• Art. ll Sec. 2, Constitution : an assurance of our
willingness and readiness to adhere to generally
accepted principles of international law.
*Rules & regulations of the Hague and Geneva
Conventions form part and are wholly based on the
generally accepted principles of international law,
thus form part of the law of our nation even if the
Phil. was not a signatory to the Hague Convention
and signed the Geneva Convention only in 1947
(Kuroda vs. Jalandoni).
*Philippine membership in the WTO is not an
impairment of our sovereignty. Applicable
principles are the doctrine of incorporation and
pacta sunt servanda. The sovereignty of the Phil. is
subject to restriction by its membership in the
family of nations & the limitations imposed by
treaty limitations. The Constitution did not envision
our hermit-like isolation from the rest of the world
(Tanada vs. Angara, 272 SCRA 18, ’00 BQ)
*LOI 229 requiring motor vehicle owners to have
reflectorized triangular early warning devices
pursuant to 1968 Vienna Convention on Road Signs
and Signal (BQ)
• Conflict bet. PIL and Municipal Law
• McArthur’s proclamation declaring null & void
“all laws & processes of any government other
than that of Commonwealth” does not invalidate
all judicial proceedings during the Japanese
belligerent occupation. Only judgments/ judicial
proceedings of political nature are invalidated
(Co Kim Chan vs. Valdez Tan Keh).
• From International viewpoint, uphold PIL xxx
 Conflict bet. PIL (treaty) and Constitution
• A demandable obligation under pacta sunt
servanda
• PIL :Every state has duty to carry out in good
faiths its obligations arising from treaties or
other sources of international law, and it may
not invoke its constitution or laws as an
excuse not to perform this duty (Declaration
of Rights and Duties of States adopted by the
ILC)
• Const. Art. Vlll, Sec. 4(2) and Art. Vll, Sec. 21
• (BQ) Basing of foreign troops under a defense treaty
for military exercises conflicts with Constitution of a
state. Which prevails?

~Sec. 5(2)(a) Art. Vlll of Constitution authorizes the

nullification of a treaty when it conflicts with the
Constitution.
~Note: State policy in Sec. 7 Art. ll is pursuit of
independent foreign policy; Paramount consideration
shall be national sovereignty, political independence,
territorial integrity & national interest.
• Consistent w/ national interest , Ph adopts a
policy of freedom from nuclear weapons in its
territory (Sec. 8 Art. ll).
• Policy does not prohibit peaceful uses of
nuclear energy.
• Any agreement on bases must embody basic
policy of freedom from nuclear weapons. Ph
can demand ocular inspection and removal of
nuclear arms.
• The Retail Trade Nationalization Law was
challenged on ground that it violated
Treaty of Amity, the UN Charter and the
Universal Declaration of Human Rights.
~Law is w/in scope of police power of
State. It is not a violation of PIL (Ichong vs.
Hernandez)
[N.B. Foreigners now allowed subject to
limitations under Retail Trade
Liberalization Act of 2000 (RA 8762)]
• Art. Vlll, Sec. 4(2): SC to decide all cases
involving the constitutionality of treaty,
international or executive agreement, w/c
shall be heard en banc and decided w/
concurrence of majority of the members who
took part in deliberations & voted thereon.
• Importation of rice by executive agreement:
Pres. may not defeat the law by indirectly
repealing the same thru EA (Gonzalez vs.
Hechanova).
• Law practice by Spanish national under Treaty
of Academic Relations (re Arturo Efren
Garcia). Power to admit to practice of law is
vested in SC under Sec. 5 Art. Vlll.
• Is international law a true law? (BQ)
-Austinian concept vs. the more acceptable view
• Basis of international law: What gives it binding
force?
1. Law of nature: a natural principle of right &
wrong discovered thru use of reason &
conscience. PIL is above states, a law of
subordination.
2. Positivist theory: derived from agreement of
states to be bound; it is a law of coordination.
3. Grotian theory
 Factors that induce observance;
sanctions of PIL
• Inherent reasonableness of PIL; conviction
that it will redound to welfare of community
• Normal habits of obedience
• Respect for world opinion xxx
• Fear of retaliation
• Machinery of UN
• How is international law enforced?
1. thru international organizations/
regional groups
2. settle differences bet. themselves
either thru amicable methods or hostile measures
like retorsions or reprisals
3. Prosecution of war criminals & collection of
reparations
4. PIL treated as part of mun. law
 Obligations Erga Omnes
• This concept is used to describe obligations owed by
states towards the community of states as a whole.
• The obligations of a state towards the international
community, by their very nature, are the concern of
all states. All states have a legal interest in their
protection, such as obligations derive from outlawing
acts of aggression and of genocide, protection from
slavery and racial discrimination.
• Examples of erga omnes norms include piracy,
slavery, genocide & torture.
• Primary and secondary sources of PIL under Art 38 ICJ
Statute (’03 BQ)
• Not every treaty is a direct source
• Examples of customs: practice of granting immunity to
foreign heads or diplomats (principle of exterritoriality);
exercise of jurisdiction beyond their territories (ex. China
over South China Sea); rules of maritime warfare
• Customs distinguished from usage
• Examples of general principles of law (derived mostly from
laws of nature): prescription, estoppel, pacta sunt
servanda and res judicata
• Doctrine of stare decisis is not applicable in international
law
 Concept of Aeguo Et Bono
• It refers to the application of equity as a source
of international law.
• The ICJ, although not expressly authorized by its
Statute to apply equity as distinguished from
law, has some freedom to consider principles of
equity as part of international law which it must
apply.
• Equity, when accepted, is an instrument
whereby conventional or customary law may be
supplemented or modified in order to achieve
justice.
 MCQ 2012

• Under the ICJ Statute, which of the following

is not considered a source of international
law?
a) international conventions
b) international custom
c) international humanitarian law
d) general principles of law
 Opinio Juris (an opinion of law)’12BQ
• It means an action is carried out or a certain
practice is followed because of belief that it is a
legal obligation.
• These actions or practices could become a
custom. Once it becomes a custom, it becomes a
source of PIL.
• In Int’l law, opinio juris is the subjective element
w/c is used to judge whether the practice of the
state is due to a belief that it is legally obliged to
do a particular act.
• In opinio juris, “not only must the acts amount
to a settled practice, but they must also be
such, or be carried out in such a way, as to be
evidence of a belief that this practice is
obligatory by the existence of a rule of law
requiring it” (ICJ in North Sea Continental
Shelf Cases, 1969) (Mijares vs. Ranada, 455
SCRA 397)[08 BQ]
 Not sources of PIL
• Resolutions or Declarations of legal principles
by the UN are merely considered
recommendatory. But if supported by all
states, they are an expression of opinio juris
communis.
• “Soft Law” are international agreements not
concluded as treaties and therefore not
covered by the Vienna Convention on the Law
of Treaties.
• Hard law is a norm or rule of conduct
accepted and recognized by the international
community as a source of law binding on
them. Hard law produces obligations which
when breached gives rise to international
responsibility and consequently to reparation.
Soft law is an expression of non-binding norm
or principle w/o intent to create enforceable
obligations. (08 BQ)
• Contrary to petitioner’s assertion, the Yogyakarta
Principles (Application of International Human
Rights Law in re to Sexual Orientation and Gender
Identity) are not obligatory on Phil. There are
declarations & obligations in said Principles w/c are
not reflective of binding principles of internat’l law
and do not find basis in any of the sources of
internat’l law. Petitioner has not undertaken any
rigorous analysis of these principles to ascertain
their true status (Ladlad Party vs. Comelec, 4/8/10).
 The International Community
• Distinction between subject and object of
international law (BQ)
• Elements of a state
• Nomadic tribes (‘moving states’) and group of
anarchists and pirates
• Neutralized states (BQ)
~ A state’s independence & integrity are
guaranteed by a treaty w/ other state(s) on
condition of its non-involvement in any war…
~Distinguished from neutrality (BQ)
• Concept of dependent state: an anomaly
*2 categories:
~protectorate – voluntary act of subordination by a state to the
protecting state. ~suzerainty – concession of autonomy made
by suzerain state to vassal state.
• Vatican City (BQ)
• Colonies and Dependencies: have no legal standing as they are
part of parent state, unless allowed to participate in their own
right in international undertakings.
ex. Universal Postal Convention in 1906
International Sugar Agreement 1937
• What is the system of mandates and trust
territories? Does UN exercise sovereignty over
these territories? (’03 BQ)
• Sovereignty over the mandate or trust territory is
held in abeyance.
• 3 kinds of trust territories
• Ex. case: Palau (after 47 yrs. in 1994)
• Belligerent Communities: an inchoative state for
purpose of conflict
• International Administrative Bodies (2 conditions
to be vested w/ international personality)
• Traditional concept regards the individual only as an object. Reason: it
is his state whose right has been violated.
• Illustrative case of Korchnoi (BQ)
• Reasons for the growing view that individual is a subject of
international law
*he is basic unit of society*many precepts directly applicable to him
• Manifestations of the individual as subject
1) UN Charter reaffirms faith in fundamental human rights, dignity xxx
2) Universal Declaration of Human Rights proclaims basic individual
rights.
3) Some treaties directly confer rights upon individuals & authorize
them to sue states before tribunals for redress of private interest
violated.
 4) States obliged to maintain international standard of
justice in treatment of aliens.
5) Genocide Convention condemns mass extermination xxx
6) Nuremberg and Tokyo War crime trials
7) Pirates as hostes humanis generis
8) Certain laws of war and neutrality directly affect
individuals.
9) Hague Convention of 1930 provides rules to prevent or
minimize statelessness
10) Convention Relating to Status of Stateless Persons
confers rights to them
11) Doctrine of Incorporation
• A US$1.1M compensation suit filed in Kyoto
District Court by 6 Chinese nationals who
were forced to become slave laborers at a
nickel mine owned by the state company
Nippon Yakin in Kyoto prefecture.
~Statute of Limitations for seeking redress
under Jap. Civil Court.
• During WW2, comfort women were forced into serving
Japanese military. Japan claims the comfort stations
were run as onsite military brothels by private
operators. What basic principle or norm of international
humanitarian law was violated by Japanese military?
~Art. lll Geneva Conv. prohibits outrages upon personal
dignity, in particular humiliating & degrading treatment.
~Art. XXVll Geneva Conv.: ”Women shall be protected vs.
any attack on their honor, in particular vs. rape,
enforced prostitution, or any form of assault.”
• Under the Convention Relating to the Status of Stateless
Persons of 1954, he is entitled to right to religion &
religious instruction, access to courts, elementary
education, public relief & assistance and treatment no
less favorable than that accorded to aliens.
• Under the Hague Convention of 1930, to avoid condition
of statelessness, the wife & children retain their existing
nationality if they are not also naturalized. The wife
acquires her husband’s new nationality only w/ her
consent. Adopted child does not lose his nationality if he
does not acquire adopter’s nationality. Child has the
nationality of place of his birth if his parents are unknown
or stateless.
• Comfort women & their descendants cannot assert individual
claims vs. Japan. The state has sovereign authority to settle claims
of its nationals vs. foreign countries even w/o the consent of the
nationals or w/o consultation with them. (BQ)
• “Genocide” refers to any of the ff. acts:
~With intent to destroy in whole or in part national, racial or
religious groups:
1. Killing members of a group;
2. causing bodily or mental harm to its members;
3. deliberately inflicting conditions to bring about physical
destruction;
4. imposing measures to prevent births;
5. Forcibly transforming children of the group to another group. (BQ)
• Boko Haram
 United Nations
• Preamble (‘We, the peoples of the UN
determined to save …’) : a symbol of man’s
determination to establish a rule of law that
would banish forever…
• UN Charter: both a treaty and a constitution
• 4 Purposes of UN (Art. 1) [code: MDAC]
• Art. 103: conflict bet. Obligations of UN member
under the Charter and those under other
international agreement
• Under 1951 San Francisco Peace Treaty, injured
states (Phil. included) received war reparations
but waived all claims vs. Japan. Is this valid?
~Not valid. The Treaty must yield to the UN Charter
w/c provides for respect of human rights. Art.
103 UN Charter states that obligations of UN
members prevail over any other international
agreement. Still, the waiver is qualified &
operative only while Japan had inadequate
resources to make full reparation.
 Amendments to UN Charter
• Adoption of vote of 2/3 of members of General
Assembly and ratified in accord w/ respective
constitutional processes by 2/3 of UN members,
including all SC permanent members
• General conference may be called by majority
vote of GA and any 9 members of SC to review
Charter. Amendments proposed by 2/3 vote of
conference shall take effect when ratified by 2/3
of UN members.
• 7 Principles of UN (Art. 2) (BQ)
* important concepts: sovereign equality of all
members; pacta sunt servanda; peaceful settlement
of conflicts; refrain from threats or use of force vs.
xxx; give assistance to UN xxx; ensure non-members
act in accord w/Prin.; domestic jurisdiction clause.
• UN S.C. Resolution 1373 obliges members to
prevent and suppress the financing, support and
safe harbor for terrorists, with threat of economic
and diplomatic sanctions or use of military force vs.
countries which fail to comply.
• ’84 BQ: ‘At the UN, the Arab League
sponsors a move to include in the agenda of
the General Assembly the discussion on the
desire of the Muslim population in
Mindanao to secede from the RP and form a
separate state. Discuss the tenability of such
move from standpoint of International Law.
• Exceptions to non-domestic jurisdiction
clause
• 2 kinds of membership in UN
• Qualifications for admission to the UN
• Principal and subsidiary organs of the UN
• Gen. Assembly cannot admit an applicant for membership
without favorable recommendation of Security Council.
• Suspension/expulsion of UN member: 2/3 of those
present and voting in the Gen. Assembly upon favorable
recommendation of at least 9 members of SC, including
all permanent members (qualified majority vote in the
SC).
• Only the SC can lift the suspension , also by qualified
majority vote.
• Voting rules in the General Assembly
~Decisions on important issues are taken by
2/3 of those present and voting. All other
matters, including whether an issue is
important or not, are decided by a majority.
• Voting rules in the Security Council is
governed by Yalta voting formula.
~On non-procedural questions, concurrence of
at least 9 members including all permanent
members. For procedural questions,
affirmative vote of any 9 or more members.
• Purpose of Yalta voting formula: ensure unity
of permanent members
• Veto power
• Uniting for Peace Resolution – emergency session of GA
may be called w/in 24 hrs at request of SC by vote of any 9
members or by majority of UN members, to make
recommendation to the members for collective measures,
including use of force if necessary, to restore peace &
security.
• Jurisdiction of the International Court of Justice is based on
consent of the parties as manifested by the optional
jurisdiction clause in Art. 36 of Statute.
• 15 members in the ICJ elected by absolute majority
vote in the GA and the Security Council for a term of 9
years and may be re-elected.
• ICJ decide contentious cases and render advisory
opinions. Advisory opinions may be given by the ICJ
upon request of GA or SC, as well as other organs of the
UN when authorized by the GA on legal questions
arising within the scope of their activities.
• All questions are decided by majority of judges present,
the quorum being nine when the full Court is sitting.
 Art. 36, ICJ Statute
• Jurisdiction comprises disputes concerning:
a. the interpretation of a treaty
b. any question of international law
c. the existence of any fact w/c if established could
constitute a breach of an international obligation
d. the nature or extent of the reparation to be made
for the breach of an international obligation
• 2 limitations on the jurisdiction of the ICJ (BQ)
• Can ICJ give advisory opinion? (BQ) Yes, on any legal
question at request of G.A. or Security Council, or
other organs of the UN when authorized by the G.A.
• ’06 BQ:
a. Where is the seat of the ICJ?
b. How many are its members?
c. What is the term of the office?
d. What are the official languages of the ICJ? French
and English
• Secretariat is chief admin organ
• Secretary-General is chosen by GA upon SC
recommendation for 5 yr. term & may be re-
elected. (Ban Ki-moon)
• Functions of the Secretary-General
• Secretary-General entitled to full diplomatic
immunities and privileges w/c only the SC may
waive, while those of other key officials of the UN
may be waived by the Secretary-General.
 Concept of State

• Methods of acquiring the status of state:

revolution, unification, secession,
assertion of independence, agreement
and attainment of civilization
• Principle of State Continuity – state
continues as a juristic being despite
changes in its circumstances, so long as
they do not result in loss of any of the
essential elements.
• Sapphire case (damage suit by Emperor
Napoleon before California court re collision bet.
French vessel Euryale and U.S. ship Sapphire)
~Sovereignty is continuous & perpetual. It does not
change but merely the person in whom it resides.
• How a state may be extinguished
• Principle of State Succession
~one state assumes rights & some of obligations
of another because of changes in condition of the
latter
~may be universal or partial
• Consequences of State Succession
~allegiance is transferred; political laws of former sovereign
automatically abrogated; non-political laws deemed
continued unless…; treaties of political nature are
discontinued except those dealing w/local rights and duties;
all rights inherited; obligations dependent on discretion of
successor state
• Succession of Governments: one government replaces
another either peacefully or by violent means.
~rights inherited by successor government
~on obligations, dependent on manner of establishing new
government whether peaceful or violent.
• Do citizens of the defunct state have the right
to resort to international law against the actions
taken by the annexing state?
• Can the successor state try crimes committed
even before the change of sovereignty?
~power to punish continues w/o lapse from
authority to authority; laws continue despite
changes of gov’t or sovereignty, the only
exception being in case of laws incompatible w/
the constitution and laws of new sovereign.
~case of Adolf Eichmann (Mossad)
 Recognition
• 2 theories: declaratory & constitutive (’04 BQ)
• Decision of President on this issue is an act of state, not
subject to judicial review.
Ex. Palestine
• Source of the President’s authority
• Recognition of PLO (BQ)
• Objects of recognition
• 3 kinds of de facto governments (BQ)
• Tobar or Wilson principle – precludes recognition of
government established by revolution, civil war, coup
d’etat or other forms of internal violence (BQ)
• Stimson principle – precludes recognition of
government established as a result of external
aggression.
• Estrada doctrine – a government will deal or not deal
with any country in w/c a political upheaval has taken
place and either action shall not be taken as a
judgment on the legitimacy of the latter’s
government (’04 BQ)
• Practical criteria for recognition of government
(objective and subjective tests to constitute
government de jure)
• Distinctions bet. 2 kinds of recognition of gov’t (de jure
and de facto) (BQ)
• Effects of recognition of states & gov’ts
1. full diplomatic relations established except where
government is de facto
2. acquires the right to sue in courts of recognizing state
3. right to possession of properties of its predecessor in
territory of recognizing state
4. all acts of recognized state/gov’t are validated
retroactively preventing recognizing state xxx
• Power to sue in U.S. court is not a matter
of right but a creature of comity. Until
recognized, there is no comity. (Russian
Socialist Fed. Soviet Rep. v. Cibrario)
• Short of war, mere breach of diplomatic
relations does not have the effect of
withdrawing the right to sue (Banco
Nacional de Cuba v. Sabbatino)
• Non-suability of the foreign state is not an effect of
recognition. The applicable doctrine is state
immunity.
• Distinctions bet. Insurgency and belligerency
• Conditions for recognition of belligerency: organized
civil gov’t directing rebels; occupy substantial portion
of territory; must be serious making outcome
uncertain; willing and able to observe the laws of war
• Consequences of recognition of belligerency
 Right of Existence and Self-Defense
• Most important of the fundamental rights.
• Does not depend on previous recognition of state for its
exercise.
• Recognized in Art. 51: “Nothing in the present Charter
shall impair the inherent right of individual or collective
self-defense if an armed attack occurs vs. a UN member…”
• Conditions for the proper exercise of the right under Art.
51
a) There must be an armed attack;
b)Self-defensive action taken by the attacked state must be
reported to SC.
• 2 views on presence of “armed attack” or does possibility
of attack justify another state to attack first?
1. idealistic – right may be resorted to only upon clear
showing of grave & actual danger to security of state,
and measures must be limited by necessity of self-
defense, instant & overwhelming & leaving no choice.
2. pragmatic – very state of armed preparedness by a
power is per se a latent threat to security.
• 2 Instances when armed force is allowed
1. Concept of self-defense
2. SC decrees an enforcement or preventive action.
• Terrorist group Ali Baba, based in and under protection of
State X, bombed State Y & threatened to repeat terrorist
acts. It had earlier bombed WTC, killing 2000 people. Despite
demands, State X refused to surrender Ladin, head of Ali
Baba. (BQ)
~State Y may exercise right of self-defense until SC has taken
measures xxx
~State Y may bring matter to SC w/c may authorize sanctions
vs. State X. Also, State Y may use force vs. State X and Ali
Baba by authority of SC.
Note: Under fundamental principles of internat’l humanitarian
law, State Y can’t be granted sweeping discretionary powers.
SC decides whether force may be used vs. specific states &
what conditions.
• US/allies invaded Iraq to liberate Iraqis &
destroy suspected WMD. No consensus
reached by SC to support or not the “war of
liberation”. Is the action justifiable in
international law?
~Self-defense (Art. 51) cannot be invoked. There
was no necessity for anticipatory self-defense
w/c may be justified under customary int’l law.
~It was not sanctioned by SC. Res 1441, w/c
gave Iraq final opportunity to disarm or face
consequences, did not authorize the use of
armed force.
~Art. 2(4) prohibits use of force vs. territorial
integrity xxx
• 1962 Cuban Missile Crisis (U.S. quarantine interdicting
delivery of offensive weapons to Cuba): an act of self-
defense
• Regional Arrangements under Art. 52: “Nothing in the
present Charter precludes the existence of regional
arrangements or agencies for dealing w/ matters
relating to maintenance of international peace and
security xxx provided such … are consistent w/ UN
Purposes & Principles “ ~Ex. Art 5 of NATO
• Reason for regional arrangements: balance of power
 Aggression as defined by UN (Dec. ‘74)
• The use of armed force by a state vs. sovereignty,
territorial integrity xxx
• The first use of armed force by a state in
contravention of the Charter constitutes prima
facie evidence of an act of aggression.
• Acts of aggression
*invasion or attack by armed forces of a state of
territory … or military occupation; bombardment;
blockade of ports or coasts xxx; allowing its
territory to be used …
• Any extension of the presence of the armed forces of
a state within the territory of another state beyond
the termination of agreement is an act of aggression.
• A war of aggression is a crime vs. international peace.
Aggression gives rise to international responsibility.
• No territorial acquisition or special advantage
resulting from acts of aggression is or shall be
recognized as lawful.
 Right of Independence
• Sovereignty – supreme power of state to command &
enforce obedience; enables state to control its own
foreign affairs vis-à-vis other states
• Right of independence recognized in Art. 2(4) of Charter
• Nature of Independence: not absolute freedom;
freedom from control by other states but not freedom
from restrictions…
• Illustrations of restrictions upon the state: Art. 2(4);
pacta sunt servanda; principle of mare liberum;
acquiescence in exercise of belligerent rights;
maintenance of international standard of justice;
observance of fundamental human rights.
 Is sovereignty real?
• “No man is an island.”
• Trade with other states which is the core of
international relations in times of peace is
essential for the state’s survival.
• Maintenance of peace & security [Art. 2(3)] is
the highest value for all states to subscribe. This
is far more compelling that vital state interests.
Thus, UN Charter makes Art.2(4) the most
important norm to attain goal.
• Kosovo’s unilateral declaration of independence
from Serbia in Feb., 2008 did not violate
international law since international law contains
“no prohibition on declarations of independence.”
But ICJ was careful not to rule on the legal status of
Kosovo as a state to avoid encouraging nationalist
movements and left the issue of a territory’s
independence at discretion of states that chose to
recognize it (ICJ Advisory Opinion issued on
07/21/10 upon request of the General Assembly).
• Right of independence carries with it correlative duty
of non-intervention.
• Intervention – act of state in interfering with domestic
or foreign affairs of another state thru use or threat of
force; may be economic or political (but there must be
pressure)
• Intervention is not allowed in PIL except as an act of
self-defense or when SC decrees enforcement or
preventive action.[other instances: when so requested
by parties; such action is agreed upon in a treaty].
• Drago doctrine (now embodied in Hague Con.)–
contracting powers agree not to have recourse to
armed force for recovery of contract debts claimed
from the government of one state by another state as
being due to its nationals.
• Porter Resolution – intervention is permitted if debtor
state refused an offer to arbitrate creditor’s claim…
• Need for re-examination of law on intervention,
specially where intervention is based on humanitarian
grounds. Examples: Somalia; Kosovo
• Can the US use force to protect civilian
populations from genocide in Somalia, as an
exception to the prohibition vs. use of force?
• In 1990, the NATO authorized military
intervention to protect Albanian civilians in
Kosovo w/o UN Security Council authorization.
Would this be legal in international law? It is
contentious and unresolved.
 Right of Equality
• Recognized in Art. 2 (1) of Charter
• Essence of Equality: not equality in number of rights
or parity in physical power, political influence or
economic status or prestige, but all rights of a state,
regardless of number, must be observed and
respected by international community; right to
enjoyment of all its attributes as a member of family
of nations.
ex. Right to acquire territory, or make use of open sea,
or seize contraband xx
• Rule of par in parem non habet imperium:
even the strongest state cannot assume
jurisdiction over another state, no matter how
weak, or question the validity of its acts so long
as they are made to take effect within its
territory. Ex. China
• Legal equality vs. Factual inequality: absolute
equality among states is impossible. (Ex. SC
membership and voting)
• The surviving Filipina “comfort women”
cannot sue Japan for damages in our
courts. A foreign State may not be sued
before Philippine courts as a
consequence of the principles of
independence and equality of states
(Republic of Indonesia vs. Vinzon, 405
SCRA 126) [2003].
 Territory
• Right to acquire properties is inferred from war powers of
Congress & treaty making power of Pres., conformably
w/Sec.2 Art.ll
• Modes of acquiring territory
• Terra nullius vs. res communes
• Requisites of a valid discovery & occupation: possession
and administration
~ Mere possession only gives inchoate title of discovery
• Las Palmas case: Principle of Continuous Administration.
Netherlands had exercised sovereignty since 1677. While
Spain discovered island earlier, it never occupied it.
• Inchoate title could not prevail over continuous
& peaceful administration by another state (Las
Palmas case)
• ICJ ruling in Feb. ’03 on ownership of Sipadan
and Ligitan Islands off Sabah in favor of
Malaysia. Malaysia had administrative control
over the islands long before Indonesia did under
the principle of continuous administration.
• Clipperton Island case: possession sans
administration of uninhabited island. France
acquired title.
• Basis of Phil. claim to Spratlys or the Kalayaan
Island is effective occupation of a territory
not subject to sovereignty of another state.
Following Japan’s renunciation of right to
Spratlys under 1951 San Francisco Peace
Treaty, it became terra nullius & was
occupied by Phil in the title of sovereignty in
a visit of Tomas Cloma in 1956. In 1978, Phil
confirmed its title thru PD 1596 which
declared Kalayaan part of its territory and a
municipality of Palawan (’00 BQ).
• Phil. Claim to Sabah is based on an
1878 contract bet. Sultan of Sulu &
Austrian Consul Gen. Baron
Overbeck/British Alfred Dent
~Malaysia claims mode of cession while
Phil. asserts it was contract of lease.
~no basis under int’l law to assert Phil.
claim to Sabah by including it in ’87
Constitution (a municipal law).
• Phil. claim to its territorial sea is based on historic
right or legal title, or the treaty limits theory. Phil
territorial sea should embrace all non-internal
waters comprised w/in limits set in Treaty of Paris
over w/c Phil & predecessors have exercised
sovereign rights for more than 3 centuries w/o
objection.
• Thalweg doctrine: (in absence of agreement bet.
States) where a boundary river divides the
territories of raparian states, the boundary line is
laid on the center, not of river itself, but of its
main channel. Ex. St. Lawrence River
UN Conference on the Law of the Sea (UNCLOS
effective 11/16/94)
• Fundamental law on maritime borders among
nations, freedom of high seas, shipping, fishing,
exploitation of resources of seabed, & principles for
protection of marine environment.
• provides for uniform breadth of 12 miles for
territorial sea, a contiguous zone of 12 miles from
outer limits of territorial sea (Protective Juris.) & an
economic zone or patrimonial sea extending 200
miles from the low water mark of the coastal state
(BQ)
• Protective Jurisdiction (Contiguous Zone) –
prevent infringement of its customs, fiscal,
immigration and sanitary regulations and
punish infringement of said regulations
• Archipelago Doctrine – defines the internal
waters of the Philippines as articulated in
Art. l, Sec. 1 of the Constitution (BQ)
 National Territory of the Philippines

• Comprises the Phil. archipelago with all the

islands and waters embraced therein, and all
other territories over which the Phil. has
sovereignty or jurisdiction, consisting of … The
waters around, between and connecting the
islands of the archipelago, regardless of their
breadth and dimensions, form part of the
internal waters of the Phil.
 Jurisdiction
• Authority exercised by the state over persons &
things w/in or outside its territory.
• Kinds: Personal and Territorial
• Basis of Personal Jurisdiction (duty of protection)
• Examples of laws on personal jurisdiction (Arts 15 &
16, CC; NIRC)
• Doctrine of indelible allegiance
~ ‘Lord Haw Haw’ in Joyce v. Director of Public
Prosecution
~ Harry Blackmer v. USA
~Applying doctrine of indelible allegiance, a
person possessing both US and Japanese
nationalities was convicted of treason for
committing brutalities on American prisoners
in a Japanese camp (Kawakita vs. US).
• Protective Principle of Criminal Jurisdiction
under Art. 2 RPC. An alien may be held under
criminal laws of a state whose national
interest he has violated & despite that the
offense was committed outside its territory.
• Gen. Rule: State has jurisdiction over all persons & property w/in its
territory (Territorial Jurisdiction doctrine)
• Exceptions
*Foreign states, heads of states , diplomats, & consuls to a certain
degree.
*Foreign state property including embassies, consulates & public
vessels.
*Acts of State
*Foreign merchant vessels under rights of innocent passage or arrival
under stress.
*Foreign armies passing thru or stationed in its territory with its
permission.
*Persons/organizations, like UN, over which it may, by agreement,
waive jurisdiction.
• Innocent passage – navigation thru territorial
sea of a state, w/o entering its internal
waters, as long as it is not prejudicial to the
peace or security of the coastal state.
• Arrival under stress or involuntary entrance
may be due to inclement weather, vessel
unseaworthiness, lack of provisions, or force
majeure.
• Everything in the state’s terrestrial domain is under
its jurisdiction. No process from a foreign
government can take effect for or vs. nationals &
aliens w/in territory of local state w/o its permission.
• What is the jurisdiction of a state over foreign
vessels w/in its territorial waters?
*No civil, administrative or criminal jurisdiction over
foreign public vessels, unless engaged in commerce.
* Over foreign private or merchant vessels, apply
English or French rule in criminal cases (BQ).
• Mere possession of opium aboard foreign
merchant vessel in our waters is not a breach
of our public order (U.S. v. Look Chaw)
• Smoking of the drug produces pernicious
effects & is punishable (Pp v. Wong Cheng)
• Despite Look Chaw ruling, criminal jurisdiction
may still be exercised by Phil. Courts because
of 1958 Geneva Convention on Territorial Sea
and Contiguous Zone imposing on states the
duty to suppress drug trafficking.
• Patrimonial Sea or the Exclusive Economic Zone in
UNCLOS is now incorporated in PD 1599. All living &
non-living resources found w/in 200 nautical miles
from the coast or baselines belong exclusively to the
coastal state (’00 BQ).
• Basis of Phil. claim over Scarborough Shoal (213 kms
off Zambales); apprehension of Chinese poachers
• Instances in w/c state may exercise jurisdiction on the
open seas (res communes): over its vessels; pirates;
in exercise of right of visit & search; under doctrine of
hot pursuit
• Under doctrine of hot pursuit, coastal state
may pursue an offending foreign merchant
vessel into the open sea & upon capture,
bring it back to its territory for punishment.
• Outer space (res communes); astronauts;
objects launched into outer space (’03 BQ)
• Distinguish exterritoriality from
extraterritoriality
• State may extend its jurisdiction beyond its territory
& over territory not under its sovereignty in the ff:
* thru assertion of personal jurisdiction over its
nationals abroad or its right to punish offenses vs. its
national interests even if committed by non-resident
aliens
* on basis of its relations /other states
* as consequence of waiver of jurisdiction by local
state over those w/in its territory
* acquisition of extraterritorial rights
* thru the enjoyment of easements or servitudes.
• Universal Principle of Jurisdiction: state has
jurisdiction over crimes vs. int’l law such as piracy,
slave trade, air hijacking, genocide and terrorism
• Is nuclear test on high seas allowed?
~danger of radioactive waste materials in the sea &
environment
~Convention on Law of Sea prohibits state from
conducting nuclear tests on high seas, w/c are
reserved for peaceful purposes. States are obliged
to conserve all living resources of the sea.
 Right of Legation
• Agents of diplomatic intercourse
• Head of state – represents sovereignty of state;
entitled to special protection for his physical safety &
preservation of his honor. His quarters, archives,
property & transport are inviolate under principle of
exterritoriality. He is immune from criminal jurisdiction
and also from civil jurisdiction, except where he is
plaintiff.
• Mighell v. Sultan of Johore case
• Classification of heads of diplomatic mission
• Diplomatic corps under doyen du corps
• How is a diplomat appointed? Practice of
agreation ~ agreement
• Who has power to appoint?
• Credentials of diplomat (letter of credence,
diplomatic passport; official instructions
and cipher or code book)
• Functions of diplomat (code:RPNAP)
• Diplomatic Immunities & Privileges
a. Personal Inviolability – entitled to special protection
of his person, honor & liberty; not liable to any form of
arrest or detention unless he causes violence & has to
restrained.
* RA 75 punishes any person who wounds, attacks,
imprisons or offer violence to the person of an
ambassador w/ imprisonment xxx
b. Immunity from Criminal, Civil and Administrative
Jurisdiction of the receiving state
• Exceptions: Instances where diplomat is not
immune from civil jurisdiction
1. real action relating to private immovable
property situated in territory of receiving state,
unless he holds it on behalf of the mission.
2. action relating to succession in w/c diplomat is
executor, administrator, heir or legatee as a
private person.
3. action relating to any professional or commercial
activity outside of his official functions.
 Some Rules on Waiver of Immunity
• Immunity from jurisdiction may be waived
expressly by sending state or head of mission.
• There is implied waiver when person entitled to
immunity files suit & open himself to counterclaim
directly connected with the principal claim.
• Waiver of immunity from jurisdiction in respect of
civil or administrative proceedings does not imply
waiver of immunity anent execution of judgment
for which a separate waiver is needed.
 c. Inviolability of diplomatic premises, including envoy’s offices,
residence, means of transport & compound (franchise de l’hotel)
[BQ]
d. Inviolability of Archives
e. Inviolability of Communication, including the diplomatic courier
carrying the diplomatic bag.
f. Exemption from Testimonial Duties
g. Freedom of movement and travel in the territory of receiving
state.

• (’90 BQ) Nepal ambassador leased a vacation house in Baguio

• (’00 BQ) Foreign ambassador leased a vacation house in Tagaytay
• Burning of Thai embassy in Phnom Penh
• Sec. 4 RA 75 provides that any writ or process
issued by any court in the Phil. for the
attachment of the goods or chattels of the
envoy of a foreign state to the Phil. shall be
void.
• Every person by whom the writ or process is
obtained, and every officer executing it, shall
be punished by imprisonment of not more
than 3 yrs and a fine of not more than P200.
• Diplomatic immunity under Host Agreement
bet. WHO & Phil. Diplomatic immunity is a
political question & courts cannot go beyond
determination by Exec. Branch (WHO v.
Aquino, 48 SCRA 243)
• (’97 BQ) Secretary/Consul in U.S. embassy
bought diamond ring worth 50T w/c he gave
to his Filipino GF.
• (’91 BQ) supply of military boots to Indonesia.
Only 200,000 pairs delivered of 500,000
ordered. Indonesia paid for only 100,000 pairs
& filed suit for specific performance.
• In International Catholic Migration Commission vs.
Calleja (190 SCRA 130), diplomatic immunity of
ICMM & the International Rice Research Inst. was
upheld. Immunity from local jurisdiction is
necessitated by their international
character/purposes. They should be shielded from
control or political pressure by the host state & to
ensure unhampered performance of their functions.
• In a suit for illegal dismissal, diplomatic immunity of
ADB was upheld (DFA vs. NLRCX, 262 SCRA 38).
• Under the doctrine of sovereign immunity,
a state, its agents or property are immune
from judicial process of another state
except with its consent. However, Phil.
adheres to restrictive immunity & not the
absolute immunity school of thought. Only
governmental or sovereign acts (acta jure
imperii) are covered by sovereign
immunity. Proprietary or commercial acts
(acta jure gestiones) are not covered.
• Diplomatic Asylum – a person seeks refuge in the
premises of a foreign mission in the receiving state.
• Territorial Asylum – a person seeks refuge in a
foreign country.
• Conditions of diplomatic asylum
1. individual is being prosecuted for a political
offense
2. his life is in danger
3. he will not be given fair trial if he is surrendered
to the state demanding his surrender.
• Case of Alfredo Saulo
 Consuls
• Kinds and ranks of consuls
• sources of consul’s authority: letter patent & exequatur
• Duties of consuls: commerce & navigation…
• Distinguish immunities/privileges of consuls from those
of diplomats
~entitled to immunity from jurisdiction for acts
performed in their official capacity; liable to arrest &
punishment for grave offenses & may be required to
give testimony; may not be prosecuted for minor
offenses for reasons of comity; consular office is
immune only to that part where work is being
performed.
• Immunities and privileges are available
not only to the consul but also to the
members of the consular post, their
respective families, and the private staff.
• For official acts, immunity from
jurisdiction subsists without limitation of
time.
 A Case about Consular Protection
• (June ’01 ICJ Decision) re execution of 2 German
brothers (Walter & Karl LaGrand) in Arizona in 1999
for their involvement in a bank robbery in 1982.
*U.S. breached its international duties when it
ignored ICJ’s request for last minute stay of
execution for Walter.
*U.S. violated the Vienna Convention on Consular
Protection w/c requires police/court officials to
inform foreign detainees of their right to seek help
from consular officials from their own countries.
 Treaties
• An agreement under international law w/c
establishes the rights & obligations of
sovereign states & international organizations.
• A verbal agreement (via phone) bet. 2 leaders
of sovereign states is not a treaty under the
Vienna Convention on the Law of Treaties of
1969 w/c requires that treaties must be in
written form. (2012 BQ)
• Distinction bet. Treaty & Exec. Agreement : An E.A.
is not a treaty insofar as the concurrence of Senate
is not required under the Constitution. But
distinction is purely municipal & has no
international significance.
• An EA was entered into by Phil. & State A. The
Senate declared it unwise & vs. Phil. interest. Is EA
binding from view of a) Phil. Law and b) PIL? (’03
BQ)
*From Phil. Law, EA is binding. Senate concurrence
is not required. From PIL, EA is also binding. Under
Vienna Conv. on Law of Treaties, whatever is
designation of document is not legally significant.
• Are all international agreements subject to
concurrence of Senate?
*International agreements w/c are in nature
of original agreements of permanent
character or w/c establish a national policy
require concurrence because they are in fact
treaties.
*International agreements w/c are merely
implementation of treaties already ratified or
of statutes of well established policy or are
transitory in character or effectivity do not
require ratification.
• Phil. & other Asean countries entered into EA for conduct of
training in Subic. Each member will send a batallion of their armed
forces for such purpose. Concerned citizens sought to enjoin in
court their entry claiming that the Constitution prohibits the
stationing of foreign troops & use of local facilities. Decide. (BQ)
~What the Constitution (Art. XVlll, Sec. 25) prohibits, in absence of a
treaty concurred in by the Senate, is the stationing of troops and
facilities of foreign countries in Phil. It does not include their
temporary presence for purpose of combined military exercise.
Also, the holding of such exercise is connected with defense, a
sovereign function. The filing of case amounts to suit vs. state w/o
its consent
• By constitutional fiat & intrinsic nature of his
office, President as head of state, is the sole organ
& authority in external relations. As chief architect
of foreign policy, he acts as the state’s mouthpiece
on international affairs, invested w/authority to
deal w/ foreign states & governments & enter into
treaties. He has sole authority to negotiate
w/other states. Senate cannot intrude into it
(Pimentel v. Exec. Sec., 462 SCRA 622).
 Requisites of a valid treaty
• A treaty must: (a) be entered into by
parties w/ the treaty-making capacity;
(b) thru their authorized representatives;
(c) without the attendance of duress,
fraud, mistake or other vices of consent;
(d) on any lawful subject matter; (e) in
accordance with their respective
constitutional processes.
• Fraud or mistake will invalidate treaty.
• Duress on person of negotiator will invalidate treaty.
• Steps in treaty-making process
*negotiation
*signature (in accord with alternat) – to authenticate
instrument & show good faith.
*ratification
*exchange of instruments of ratification
• There is no legal obligation to ratify a treaty, but
refusal must be based on substantial grounds.
 Some rules on ratification
• Ratification with reservations
• An unratified treaty cannot be the source of
obligations between the parties.
• Power to ratify a treaty is vested in the President
& not in legislature.
• It is competent for President to refuse to submit
a treaty to Senate or having secured its consent
for ratification, to refuse to ratify it. But the Pres.
cannot ratify a treaty w/o Senate concurrence.
MCQ: Petitioner asked the SC to compel DFA to transmit the signed
copy of the Treaty (Rome Statute of the ICJ) to Senate for
concurrence. He claimed it is the duty of the Executive to transmit
the signed copy of Statute to Senate to allow it to exercise its
discretion as to ratification of treaties. Is he correct?
a) Yes. Const. provides a limit to President’s power to enter into
treaties by requiring concurrence of the Senate for validity of the
treaty.
b)No. Power to ratify a treaty is vested directly & exclusively in the
President, subject only to Senate concurrence for validity of
treaty.*
c) Yes. Senate is given authority to concur as a means to check Pres.’s
treaty making power.
d)No. Const. is silent on timeframe for submission by President of
the treaty to Senate.
• Art. 102 of Charter: registration of treaty w/Secretariat
for publication, although this is not essential to validity
of the treaty as between the parties.
• Effect of non-registration with the Secretariat of the UN
• Rule: Treaty is binding only on contracting parties &
those allowed to sign it later by process of accession.
• Exceptions: (3rd parties are bound)
a. it is merely a formal expression of customary
international law, thus enforceable on all states because
of their membership in UN.
Ex. Hague Convention of 1907 (Kuroda)
 b. *Art. 2 Charter: Organization shall ensure that
even non-members act in accord with UN principles
*Art. 103: in case of conflict…
c. treaty extends benefits to non-signatory states
d. most favored nation clause (BQ)
• Doctrine of Rebus Sic Stantibus
- justifies non-performance of treaty if conditions
have materially & unexpectedly changed such that
exaction of performance would be unreasonable.
(BQ)
• Limitations on rebus sic stantibus
• Doctrine of Jus Cogens – a treaty is invalid if it
contravenes accepted rules of international law
or collides with a new peremptory norm of
international law. (BQ)
Ex. Compelling refugees to return to their
motherland.
• Note: Under Universal Declaration of Human
Rights, everyone has right to seek and enjoy in
other countries asylum from persecution. (Relate
this to Diplomatic Asylum and Territorial Asylum)
MCQ: This term means “compelling law”, a peremptory
principle of international law that cannot be overridden
by specific treaties between countries, i.e. norms that
admit of no derogation; they are binding on all states at
all times (e.g., prohibitions on aggression, slavery and
genocide)
a)Jus gentium
b)Jus civile
c) Jus cogens*
d)Jus naturale
 MCQ: The “most favored nation” under
international law refers to:
a) No discrimination between local and foreign
goods.
b) The right to enter free trade agreements.
c) Non-discrimination between trading
partners.*
d) Transparency between trading partners.
• UN Climate Treaty (Kyoto Protocol) approved in Nov. 2001
*marks 1st global step to tackle greenhouse gases: cause of
global warming; a peril to rich and poor nations alike & a
threat to man’s survival.
*greenhouse gases are carbon substances that are the
unwanted by-product of burning oil, gas and coal.
*billion tons of gases have been released as result of
industrialization
*treaty requires industrialized states to cut emissions of
carbon-based gases
*carbon sinks (forests & agri lands)
 International Environment Law
• Principle 21 of Stockholm Declaration of 1972 as
formulated in UN Conference on Human Environment
by 113 states –
“States have, in accordance w/UN Charter & 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
w/in their jurisdiction or control do not cause damage to
the environment of other States or of areas beyond the
limits of national jurisdiction.” (ex. oil spillage)
• State A, in its bid to develop hydrogen bomb & defend itself vs.
threats from State B, conducted secret nuclear tests in its own
atmosphere, resulting in radioactive fallouts which
contaminated the Phil. territorial waters. Can the Phil.
complain vs. State A for violation of its sovereignty?
~Yes, Phil. sovereignty was violated. Art. 194 of UNCLOS requires
states to take measures necessary to ensure that their
activities under their jurisdiction do not cause damage by
pollution to other states & their environment. Also, Principle
21 of Stockholm Declaration imposes on states the
responsibility to ensure that activities w/in their control do not
cause damage to the environment of other states.
• The Stockholm Declaration, which calls on
Governments & peoples to exert common
efforts for preservation & improvement of the
human environment for the benefit of all the
people and for their posterity, is just a
declaration. It does not have the force of law.
• However, there are some conventions legally
binding on the parties, such as:
• The Vienna Convention for the Protection of the Ozone
Layer of 1985 adopted measures for the protection of the
ozone layer, the layer of atmospheric ozone above the
planetary boundary layer.
• The UN Conference on Environment and Development
of 1992 seeks to achieve stabilization of greenhouse gas
concentration in the atmosphere at a level that would
prevent dangerous interference with the climate system.
• The Kyoto Protocol also seeks to protect the atmosphere.
 Nationality & Statelessness
• What is nationality and why is it important?
• Nationality is acquired by birth (jus soli or jus
sanguinis) or naturalization (direct or
derivative)
• Multiple Nationality
• Case of Alberto Fujimori, former Peru
President; credited for rescue of hostages in
1997; fled to Japan in Nov.’00.
 Rules in 1930 Hague Convention on
Conflict of Nationality Laws
• If there is question as to nationality of an
individual, it is for the state to determine under its
laws who are its nationals.
• U.S. (Alexander Tellech) v. Austria
*Tellech, born of Austrian parents in U.S., subjected
to military conscript in Austria.
• Principle of Effective or Active Nationality: the dual
national shall be considered the national
exclusively of the state with which he is most
closely connected. (BQ)
• Nottebohm case (German by birth but resident of Guatemala for 34
yrs)
*Apply Effective Nationality doctrine
• Stateless persons are those who are not considered as nationals by
any state under the operation of its laws.
• Consequences of statelessness:(BQ)
~No state can intervene or complain on his behalf for injury caused to
him …
~He cannot avail himself of protection & benefits of citizenship like
passport/visa.
• Under Covenant Relating to Status of Stateless Persons of 1954, he
is entitled to religious instruction, access to courts, public relief and
assistance & treatment no less favorable than that accorded aliens.
• (BQ) Rules to avoid statelessness under Hague
Convention of 1930
1. loss of nationality by individual is conditioned on
his retention or acquisition of another nationality.
2. In case of naturalization, wife and minor children
retain existing nationality if they are not also
naturalized. Wife acquires husband’s nationality
only w/ her consent.
3. Children whose parents are stateless or unknown
shall have nationality of state of their birth.
 Treatment of Aliens
• Right of state to determine in what cases &
under what conditions foreigners may
admitted…
• Rule: No special treatment to aliens. He must
accept institutions as he finds them. The state
not insurer of life & property of alien.
• Exception: Laws of state do not conform to
international standard of justice, thus liability
attaches to the state. The doctrine of equality of
treatment is not a defense.
• Doctrine of State Responsibility holds a state
responsible for an international delinquency
directly or indirectly imputable to it which causes
injury to the national of another state.
• International Standard of Justice – ordinary norms
of official conduct observed in civilized states.
(stoning, caning, hanging, denial of process)
• Distinction between direct and indirect state
responsibility
• Conditions for enforcement of doctrine of state
responsibility:
~alien must first exhaust local remedies.
~he must be represented in the international claim
for damages by his own state.
• The 1st condition above may be dispensed with if:
laws are intrinsically defective; arbitrariness; corrupt
system; no adequate machinery; acts of state.
• If state responsibility is established or
acknowledged, reparation arises: restitution,
satisfaction or compensation, or all three of these.
• Burning of Thai embassy in Phnom Penh in
2003. Compensation ($23.54 M) and
apology.
• Doctrine of state responsibility is applied
more frequently to tortious rather than
contractual liability xxx
• Calvo doctrine (proviso in contracts: alien
waives his right to appeal to his own state).
• Avoidance of doctrine by excluding aliens is not a sound
policy, but state may regulate their entry thru
deportation.
• The power to deport aliens is an act of state.
• Distinguish deportation & extradition
• Basis of extradition: treaty. If no treaty, either grant
asylum or surrender of fugitive on basis of comity.
• Under Principle of Specialty, a fugitive who is
extradited may be tried only for the crime specified in
the request for extradition & included in the list of
offenses in the extradition treaty.
• Under the Rule of Double Criminality, the act for which
extradition is sought must be punishable in both the
requesting and requested states.
• Political and religious offenses are generally not subject to
extradition.
Ex. Inciting to Sedition
• Procedure of Extradition
• Case of Jose Ma. Sison
~ no extradition treaty yet when he
sought refuge.
~ a political refugee under European
Convention for Protection of Human Rights and Fundamental
Freedom.
• Ex-post facto law is not applicable to extradition;
it applies to penal laws only. France can demand
the extradition of a Frenchman who had
committed the offense in France prior to the
extradition treaty bet. Phil. & France (BQ).
• Under attentat clause in extradition treaty,
taking of life or attempt vs. head of state is not a
political offense, hence, extraditable. If there is
no attentat clause, state of refuge can refuse
extradition because it is a political offense (BQ).
• In the advent of modern technology, the
request for extradition made thru fax, rather
than telegraph or diplomatic cable, is allowed.
The process of preparing a formal request for
extradition and its accompanying documents
and transmitting them thru diplomatic
channels is time consuming and leakage prone.
There is great likelihood of flight by criminals
(Cuevas vs. Munoz, 348 SCRA 544).
• Extradition is not a criminal proceeding
where suspect is entitled to
constitutional rights of an accused like
right to bail. It is a proceeding whether a
request is in accord w/ treaty and not a
determination of the guilt of the person
(DOJ Sec. vs. Jimenez, 343 SCRA 377).
MCQ: Principle which provides that
aliens must be treated in
accordance with the international
standard of justice.
a)Doctrine of equality of treatment
b)Calvo doctrine
c) Doctrine of state responsibility*
d)Doctrine of double criminality
 International Human Rights Law
• The Universal Declaration of Human Rights, adopted in
Dec. 1948: the first significant step in gradual process of
internationalizing & legislating international human rights
law. It was not a law but only a “ common standard” for
nations to reach as embodied in the UN Charter’s
Preamble. Its authority was primarily moral and political.
• The aspirations of the Declaration of Human Rights were
converted into conventional international law in the
International Covenant on Civil & Political Rights and the
International Covenant on Economic, Social and Cultural
Rights.
• The rights specific to the Covenant on Civil
and Political Rights include the right to life,
with a bias for abolition of death penalty;
proscription of torture & other forms of ill-
treatment; freedom of movement; the right of
ethnic or religious minorities to enjoy their
own culture, language & practice their own
religion; and the right of self-determination of
peoples.
• The rights specific to the Covenant on Economic,
Social and Cultural Rights are social welfare
rights to include: the right to work, to favorable
conditions of work, to special assistance for
families, to adequate standard of living, to the
highest standard of physical & mental health, to
education including compulsory primary
education and to enjoyment of cultural and
scientific benefits and international contacts.
 International Dispute
• Actual disagreement bet. states re the conduct to be taken
by one for protection or vindication of interests of the
other.
• May be legal (adjudication of justiciable rights xxx) or
political (cannot be decided by legal processes; animosities
in their mutual attitudes rather than legal rights)
• Dispute required to be settled pursuant to Art. 2 (3) of
Charter
• No adequate machinery yet in PIL for peaceful settlement
of conflicts among states by compulsory process
(Inadequacies of ICJ, SC)
• Amicable Methods:
negotiation, inquiry, good offices, mediation, conciliation,
arbitration, judicial settlement and resort to regional &
international organizations
• Hostile Methods: retorsions, reprisals and intervention
• Acts of retorsions: severance of diplomatic or consular
relations, suspension of commercial intercourse, boycott,
imposition of higher tariff rates & other trade barriers,
denial of loans
• Acts of reprisals: occupation of territory, display of force,
embargo (detention of vessels of offending state & its
nationals), pacific blockade
• Retorsions and reprisals are not allowed under
present international law because they
contravene the principles of U.N. Also, reprisals
are unlawful acts, and retorsions violate one of
the purposes of U.N. which is promotion of
friendly relations xxx
• Still, retorsions and reprisals have practical
justification because they are mild alternative
compared to war.
 War
• War may exist even w/o use of force or actual hostilities.
(specific action vs. specific status)
Ex. North Korea & South Korea
• Hague Convention of 1907 declares that war must not
commence w/o a previous & explicit warning, in the form
of reasoned declaration of war or an ultimatum with
conditional declaration.
• Sanctions of the laws of war: How enforced?
1.Protest lodged by one belligerent vs. unlawful acts of war
committed by the other state, w/ appeal to world opinion.
2.Reparation for damages
3.Punishment of war criminals (ICC).
• Who are combatants? (BQ)
1. Members of armed force except those not engaged in
combat.
2. francs tireurs (guerillas): conditions
3. levee en masse
4. Officers & crew of merchant vessels who forcibly resist attack
• Rights of combatants when captured: entitled to treatment as
POW w/c include rights to be accorded proper respect due
their rank, to adequate food & clothing, to safe & sanitary
quarters, to medical assistance, to communicate w/family…
• Who are mercenaries?
• Basic principles underlying the rules of warfare:
1. military necessity : belligerents may employ
any amount & kind of force necessary to
compel complete submission of enemy w/ least
loss of lives and property. (Nagasaki &
Hiroshima)
2. humanity : prohibits use of measure not
absolutely necessary for purposes of war.
Ex. Torching of wells, killing of POW
 3. chivalry : requires belligerents to give proper
warning before bombardment or to avoid use of
treacherous methods.
ex. Illegal use of red cross, false flag
• Spies are subject to municipal law of the other
belligerent. They are not combatants.
• Belligerent occupation does not result in the
transfer or suspension of sovereignty. Only the
exercise of sovereignty is transferred.
• The basic obligation of belligerent occupant is to restore and
ensure public order & safety, while respecting laws w/regard to
family rights, property, religion and practices. It may promulgate
new laws, exact contributions, introduce military currency…
• Right of Postliminium – reinstatement of the authority of
displaced government once enemy control is lost over territory.
Its laws are revived while illegal acts & those of political nature
of the belligerent occupant are invalidated.
• Distinction between uti possidetis (retention xxx) and status
quo ante (complete restoration xxx except prize & booty) upon
cessation of hostility
 Neutrality
• Neutrality – condition of a state that does not take part in a
war bet. other states.
• Absolute neutrality is not possible.
• Neutrality and neutralization distinguished
• Mutual rights and duties of the neutral and belligerent states
*Neutral state has right & duty to abstain from taking part in
hostilities & from giving assistance to either belligerent; to
prevent its territory from being used; & to acquiesce in
restrictions that belligerents may impose.
*Belligerents are bound to respect status of neutral state,
avoiding any act that will involve it.
• Rule: Neutral territory is inviolable.
Exceptions: passage of the sick & wounded thru neutral territory;
persons enlisting in belligerent army may cross neutral frontier
individually; belligerent warships may not enter neutral ports except
only in cases of stress of weather, unseaworthiness, lack of fuel or
provisions.
• International law does not obliged the neutral state to prohibit its
nationals from dealing with belligerents. It does not affect its neutral
status.
• Right of angary- belligerent may, upon payment of just compensation,
seize, use or destroy in case of urgent necessity a neutral property
found it its territory, in enemy territory or on the high seas.
Thank you

and

Good Luck!!!