PUBLIC INTERNATIONAL LAW
Atty. Duka members.
THE NATURE OF INTERNATIONAL LAW
Public International Law
Law that deals with the conduct of States and
international organizations, their relations with each other
and, in certain circumstances, their relations with
persons, natural or juridical.
HISTORY OF PUBLIC INTERNATIONAL LAW
Brief Historical Development of IL:
Ancient IL governed exchange of diplomatic
emissaries, peace treaties, etc. in world of ancient
Romans and earlier. The progressive rule of jus gentium,
seen as a law common to all man, became the law of
the vast Roman Empire.
Modern IL began with the birth of nation-states
in the Medieval Age. Governing principles were derived
from Roman Law or Canon Law which drew from natural
law. Hugo Grotius considered father of modern IL. What
he called law of the nations was later given the name
IL by Jeremy Bentham.
The positivist approach reinterpreted IL not on
basis of concepts derived from reason but rather on basis
of what actually happened in the conflict between states.
With emergence of notion of sovereignty came the view of
law as commands backed up by threats of sanction. In
this view, IL not law bec not from command of sovereign.
Significant milestones in development of
International Law:
1.) Peace of Westphalia (ending 30 yrs war)
established a treaty based framework for peace
cooperation. (it was at this time that pacta sunt
servanda arose.)
2.) Congress of Vienna (ending Napoleonic wars)
created a system of multilateral pol and econ
cooperation.
3.) Covenant of the League of Nations (incl. Treaty
of Versailles ending WWI) created the Permanent
Court of International Justice.
4.) Founding of UN in aftermath of WWII. Shift of
power away from Europe and beginning of truly
universal institution. Universalization advanced
by decolonization which resulted in expansion of
membership of UN. New states, carrying a legacy
Pua, Rochel April
of bitterness against colonial powers, became
5.) Cold War period succeeded in maintaining
peace through balancing of 2 super powers.
6.) Dissolution of Soviet Union resulting in end of
Cold War with re-emergence of intl relations
based on multiple sources of power and not
mainly ideology.
Hugo Grotius
International practices, customs, rules and treaties
proliferated to the point of complexity. Several scholars
sought to compile them all into organized treatises. The
most important of these was Hugo Grotius, whose treatise
De Jure Belli Ac Pacis Libri Tres is considered the starting
point for modern international law. Before Hugo Grotius,
most European thinkers treated law as something
independent of mankind, with its own existence. Some
laws were invented by men, but ultimately they reflected
the essential natural law. Grotius was no different, except
in one important respect: Unlike the earlier thinkers, who
believed that the natural law was imposed by a deity,
Grotius believed that the natural law came from an
essential universal reason, common to all men.
This rationalist perspective enabled Grotius to posit
several rational principles underlying law. Law was not
imposed from above, but rather derived from principles.
Foundation principles included the axioms that promises
must be kept, and that harming another requires
restitution. These two principles have served as the basis
for much of subsequent international law. Apart from
natural-law principles, Grotius also dealt with
international custom, or voluntary law. Grotius
emphasized the importance of actual practices, customs
and treatieswhat "is" doneas opposed to normative
rules of what "ought to be" done. This positivist approach
to international law strengthened over time. As nations
became the predominant form of state in Europe, and
their man-made laws became more important than
religious doctrines and philosophies, the law of what "is"
similarly became more important than the law of what
"ought to be."
DIFFERENCE BETWEEN PUBLIC INTERNATIONAL
LAW and CONFLICTS OF LAW
Public Conflicts of Law
International
Law
As to International Municipal or National
Nature
It is a law of a Except when embodied
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 sovereign over in a treaty or convention, the laws of another so for
those subjected becomes international in as can be done
to character. It is a law, not consistently with its own
his sway above, but between, interests
sovereign states and is,
therefore, a weaker law.
As to International Local or Municipal DIVISIONS OF INTERNATIONAL LAW
Remedies Modes of Tribunals through local
/ settlement administrative and 1. The Laws of Peace
Settleme judicial processes. - Governs the normal relations of states
nt Like negotiations - Human Rights Law
and arbitration,
reprisals and 2. The Laws of War
even war - When war breaks out between or some
As to Derived from Consists mainly from the of them
Source such sources as lawmaking authority of - International Humanitarian Law
international each state. - Laws of Armed Conflicts
customs,
international 3. The Laws of Neutrality
conventions and - Those not involved in the war, however,
the general their relatives with the belligerents, or
principles of law. those involved in the war, are governed
As to International Private Persons by the laws of neutrality
Parties Entities
Regulates the relations of
Applies to individuals whether of THE SOURCES OF INTERNATIONAL LAW
relations states the same nationality or
inter se and other not. In the absence of a centralized legislative,
international executive and judicial structure, there is no single body
persons. able to legislate and there is no system of courts with
As to International Sheriff/Police compulsive power to decide what the law is nor is there a
Enforcem Sanctions centralized repository of international law. thus, theres a
ent problem of finding out where the law is. Nevertheless, IL
Responsi Infractions are Generally, entails only exists and there are sources where the law can be found.
bility for usually collective individual responsibility.
Violation in the sense that 2 Classifications:
it attaches
directly to the 1.) Formal sources:
state and not to The various processes by which rules
its nationals come into existence (e.g. legislation, treaty
Regulates the Regulates the comity of making and judicial decision making, and the
political states in giving effect in practice of states.)
intercourse of one to the municipal
nations with each laws of another relating 2.) Material sources:
other or to private persons or The substance and content of the
concerns concerns the rights of obligation. They identify what the obligations
questions of persons within the are. Also referred to as evidence of IL. (e.g.
rights between territory and dominion of state practice, UN resolutions, treaties,
nations one state or nations by judicial decisions and writings of jurists).
reason of acts, private or
public, done within the The doctrine of sources lays down conditions for
dominion of another, and verifying and ascertaining the existence of legal
which is based on the principles. The conditions are the observable
broad general principle manifestations of the wills of states as revealed in the
that one country will processes by which norms are formed (treaty & state
respect and give effect to

Pua, Rochel April Page

practice accepted as law.) The process of verification is
inductive and positivistic.
SOURCES OF INTERNATIONAL LAW
Primary Sources
1. International Treaties and Conventions
- Are voluntarily entered into by states
and encapsulates express obligations
entered into.
2. International Customs
- These are the consistent practice of
states adopted over several years.
- Is usually invoked where there are no
treaties that exist to cover a particular
issue or situation.
- A custom need not be worldwide as it
can be limited to a region only
3. General Principles of International Law
- These are the accepted principles of law
under major legal systems
e.g. all states created equal
Subsidiary Sources
4. Decisions of Courts
- Decisions of the International Court of
Justice and other International Tribunals
are given weight. Decisions of municipal
or domestic courts are given lesser
weight except if they pertain to
precedent-setting cases such as the
Paquete Habana Case
5. T eachings of Publicists
- The court shall apply The teachings of
the most highly qualified publicists of
the various nations, as subsidiary means
for the determination of rules of law.
Publicist: Learned Writers
BASES OF INTERNATIONAL LAW
1. The Law of Nature School
- Believes that international law is based
on the rules of conduct discoverable by
every individual in his own conscience
Pua, Rochel April
and though the application of right
reason.
As he is bound to observe these rules
without need of a formal or external
prescription, so too is the state, which is
composed of individuals.
2. The Positivist School
- Holds that International Law is based on
the consent of states, and on such
consent only.
- This consent is expressed in the case of
conventional law, implied in the case of
customary law, and presumed in the
case of the general principles of law.
3. The Eclectic or Grotian School
- Represents a compromise between the
first two schools of thought and submits
that international law is binding partly
because it is good and right and partly
because states have agreed to be bound
by it.
- This appears to be the most widely
accepted
FUNCTIONS OF INTERNATIONAL LAW
The Principal Functions are:
1. To promote international peace and security
2. To foster friendly relations among nations and to
discourage the use of force in the solution of
differences among them
3. To provide for the orderly regulation of the
conduct of states in their mutual dealings
4. To insure international cooperation in the pursuit
of certain common purposes of an economic,
social, cultural or humanitarian character.
BASES OF APPLYING INTERNATIONAL LAW IN
LOCAL JURISDICTION
Doctrine of Incorporation
International laws are adopted as part of a states
municipal law, by a general provision or clause usually in
its Constitution.
Sec. 2, Art II, 1987 Constitution
The Philippines renounces war as an instrument of
national policy, adopts the generally accepted principles
of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom,
cooperation, and amity with all nations.
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Case: Secretary of Justice v. Lantion
GR No. 139465, Jan. 18, 2000 and Oct. 17, 2000
FACT S:
A possible conflict between the US-RP
Extradition Treaty and Philippine law
ISSUE:
WON, under the Doctrine of Incorporation,
International Law prevails over Municipal Law
HELD:
NO. Under the doctrine of incorporation, rules
of international law form part of the law of the land
and no further legislative action is needed to make
such rules applicable in the domestic sphere.
The doctrine of incorporation is applied whenever
local courts are confronted with situations in which
there appears to be a conflict between a rule of
international law and the provisions of the local
states constitution/statute.
First, efforts should first be exerted to harmonize
them, so as to give effect to both. This is because it
is presumed that municipal law was enacted with
proper regard for the generally accepted principles
of international law in observance of the
incorporation clause.
However, if the conflict is irreconcilable and a
choice has to be made between a rule of
international law and municipal law, jurisprudence
dictates that the municipal courts should uphold
municipal law.
This is because such courts are organs of municipal
law and are accordingly bound by it in all
circumstances. The fact that international law was
made part of the law of the land does not pertain to
or imply the primacy of international law over
national/municipal law in the municipal sphere.
The doctrine of incorporation, as applied in most
countries, decrees that rules of international law are
given equal standing with, but are not superior to,
national legislative enactments.
In case of conflict, the courts should harmonize
both laws first and if there exists an unavoidable
contradiction between them, the principle of lex
posterior derogat priori - a treaty may repeal a
statute and a statute may repeal a treaty will apply.
But if these laws are found in conflict with the
Constitution, these laws must be stricken out as
invalid.
Pua, Rochel April
In states where the constitution is the highest law of
the land, such as in ours, both statutes and treaties
may be invalidated if they are in conflict with the
constitution.
Supreme Court has the power to invalidate a treaty
Section 5 Par 2 (a ), Art. VIII, 1987
Constitution:
Sec 5. The Supreme Court shall have the
following powers:
(2) Review, revise, reverse, modify, or affirm on
appeal or certiorari, as the law or the Rules
of Court may provide, final judgments and
orders of lower courts in:
(a) All cases in which the
constitutionality or validity of any
treaty, international or executive
agreement, law, presidential decree,
proclamation, order, instruction,
ordinance, or regulation is in
question.
Doctrine of Transformation
Requires the enactment by the legislative body of
such international law principles as are sought to be part
of municipal law.
THEORIES DEFINING THE RELATIONSHIP OF
INTERNATIONAL LAW WITH DOMESTIC LAW
Theory of Monism
International law and domestic law are one legal
system, but International Law is superior to the
Domestic Law.
It proposes that International Law cannot be
limited by a States Constitution. If a conflict exists
between a Domestic Law and International Law , it is
International Law which should prevail.
Theory of Dualism
International Law and Domestic Law are distinct
and separate. The application of International Law is
limited by the Domestic Law or the States
Constitution. It would appear that the Philippines is a
dualist state.
SUBJECTS OF INTERNATIONAL LAW
Entity that has rights and responsibilities under
international law and having the capacity to maintain its
rights by bringing international claims, includes:
SUBJECTS:
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 <1> State
A group of people, living together in a fixed
territory, organized for political ends under an
independent government, and capable of entering
into international relations with other states.
Elements:
a. People
b. Territory
c. Government
d. Independence or Sovereignty
Doctrine of Acts of State
Every sovereign state is bound to respect the
independence of every other sovereign state,
and the courts of one country, will not sit in
judgement on the acts of the government of
another done within its own territory.
<2> Colonies and Dependencies
From the viewpoint of international law, they
are considered as part and parcel of the parent
state through which all its external relations are
transacted with other states.
Colony
A dependent political community consisting
of a number of citizens of the same country who
have migrated therefrom to inhabit in another
country, but remain subject to the mother state
Dependency
A territory distinct from the country which
the supreme sovereign power resides but
belongs rightfully to it, and subject to the laws
and regulations which the sovereign may
prescribe.
<3> Mandates and Trust Territories
There are non-self governing territories which
have been placed under international supervision
to insure their political, economic, social and
educational advancement.
<4> The Vatican
In 1928, Italy and Vatican concluded the
Lateran Treaty for the purpose of assuring to the
Holy See absolute and visible independence and of
guaranteeing to it absolute and indisputable
sovereignty in the filed of international relations.
Case: The Holy See v. Rosario, Jr., Dec. 1, 1994
The Lateran Treaty established the STATEHOOD
of the Vatican City for the purpose of assuring to
the Holy See absolute and visible independence
Pua, Rochel April
and of guaranteeing to it indisputable sovereignty
also in the field of international relations.
From the wordings of the Lateran Treaty, it is
difficult to determine whether the statehood is
vested in the Holy See or in the Vatican City.
The Vatican City fits into none of the established
categories of states, and the attribution to it of
sovereignty must be made in a sense different
from that in which it is applied to other states.
The Vatican City represents an entity organized
not for political but for ecclesiastical purposes
and international objects.
Despite its size and object, it has an independent
government of its own, with the Pope, who is also
head of the Roman Catholic Church, as the Holy
See or Head of State, in conformity with its
traditions, and the demands of its mission. Indeed,
its world-wide interests and activities are such as
to make it in a sense an international state.
It was noted that the recognition of the Vatican
City as a state has significant implication that it
is possible for any entity pursuing objects
essentially different from those pursued by states
to be invested with international personality.
Since the Pope prefers to conduct foreign
relations and enter into transactions as the Holy
See and not in the name of the Vatican City, one
can conclude that in the Pope's own view, it is the
Holy See that is the international person.
The Philippines has accorded the Holy See the
status of a foreign sovereign. The Holy See,
through its Ambassador, the Papal Nuncio, has
had diplomatic representations with the
Philippine government since 1957. This appears
to be the universal practice in international
relations.
<5> The United Nations
International organization created at San
Francisco Conference held in the US from April 25
to June 26, 1945. UN succeeded the League of
Nations and is governed by a charter that came
into force on October 24, 1945.
Official Languages of the UN:
French
Russian
English
Spanish
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 Chinese - Organ charged with the administration
Arabic of the International Trusteeship System
(idle council)
Principal Purposes of UN:
E. The Secretariat
1. Maintain international Peace and Security - Chief administrative organ of the UN
2. Develop friendly relations among nations
3. Achieve international cooperation F. International Court of Justice
4. Center for harmonizing actions of nations - Judicial organ of UN; world court
for attainment of these common goals governed by the statue which is annexed
to and made part of the UN Charter

Structure of the UN: <6> Belligerent Community

Group of rebels under an organized civil
A. General Assembly government who have taken up arms against the
Central organ where all members are legitimate government. When recognized,
represented considered as a separate state for purposes of
conflict and entitle to all the rights and subjected
Functions: to all the obligations of a full-pledged belligerent
a. Supervisory under the laws of war.
b. Budgetary
c. Constituent <7> International Administrative Bodies
d. Deliberative Certain administrative bodies created by
e. Elective agreement among states may be vested with
international personality when 2 conditions
B. Security Council concur:
- Organ responsible for the maintenance a. Their purposes are mainly non-political
of peace and security; undertakes b. They are autonomous and not subject to
preventive and enforcement actions the control of any state
Examples:
Membership: International Labor Organization
a. Permanent Members Food and Agriculture Organization
China World Health Organization
UK
France Case: Southeast Asian Fisheries Development
Russia Center-
USA Aquaculture Department (SEAFDEC-AQD)
v. National Labor Relations Commission,
b. Non-Permanent Members Feb. 14, 1992
5 from African and Asian States
2 from Latin American States NATURE
2 from Western European and Other Petition for certiorari to review the
States decision of the NLRC
1 from Eastern European States
FACTS:
C. Economic and Social Council SEAFDEC-AQD is a department of an
- Exerts efforts towards higher standards internationalorganization, the Southeast
of living, solutions of international Asian Fisheries Development Center.
economic, social health and related Private Respondent Lazaga was hired as a
problems, universal respect for and Research Associate and eventually became
observance of human rights and the Head of External Affairs Office of
fundamental freedoms SEAFDEC-AQD. However, he was
terminated allegedly due to financial
D. T rusteeship Council constraints being experienced by SEAFEC-
AQD. He was supposed to receive

Pua, Rochel April Page

 separation benefits but SEAFDEC-AQD
failed to pay private respondent his
separation pay so Lazaga filed a complaint
for non-payment of separation benefits,
plus moral damages and attorneys fees
with the NLRC.
In their ANSWER WITH
COUNTERCLAIM, SEAFDEC alleged that
NLRC has no jurisdiction over the case
because: (1) It is an international
organization; (2) Lazaga must first secure
clearances from the proper departments for
property or money accountability before
any claim for separation pay will be paid
(and clearances has not been paid)
COUNTERCLAIM: Lazaga had property
accountability and outstanding obligation
to SEAFDEC-AQD amounting to P27,
532.11 and that Lazaga was not entitled to
the accrued sick leave benefits due to his
failure to avail of the same during his
employment LA: for Lazaga
NLRC: affirmed LA, deleted attorneys
fees and actual damages.
SEAFDEC-AQD filed MFR: denied
ISSUE:
WON SEAFEC-AQD is immune from suit
owing to ts international character
HELD:
YES
Ratio. Being an intergovernmental
organization, SEAFDEC including its
departments enjoys functional
independence and freedom from control of
the state in whose territory its office is
located.
Reasoning. One of the basic immunities
of an international organization is immunity
from local jurisdiction (immune from legal
writs and processes issued by the tribunals
of the country where it is found) that the
subjection of such an organization to the
authority of the local courts would afford a
convenient medium thru which the host
government may interfere in their
operations or even influence or control its
policies and decisions of the organization.
Such subjection to local jurisdiction would
impair the capacity of such body to
discharge its responsibilities impartially on
behalf of its member-states.
Pua, Rochel April
<8> Individuals
Only as an object of international law who can
act only through the instrumentality of his own
state in matters involving other states
THE CONCEPT OF STATE
ELEMENTS OF THE STATE:
(1) People
Refers to the human beings living within its
territory. They should be of both sexes and
sufficient in number to maintain and perpetuate
themselves
Individuals of different races, languages
and religions very often actually from
one people that is to say, the people of
one state
Citizens, Nationals, Subjects
(2) Territory
Is the fixed portion of the surface if the earth
in which the people of the state reside
A defined territory is necessary for
jurisdictional reasons and in order to
provide for the needs of the inhabitants
As a practical requirement:
It should be big enough to be self-
sufficient and small enough to be
easily administered and defended.
The Terrestrial or Land Domain
Refers to the land mass on which the
inhabitants live.
Modes of Acquiring Land Territory
a. Discovery and Occupation
Original mode by which territory not
belonging to any state or TERRA NULLIUS
is placed under the sovereignty of the
discovering state
Need not be uninhabited provided
that it can be established that the natives
are not sufficiently civilized and can be
considered possessing not rights of
sovereignty but only rights of habitation
REQUISITES FOR A VALID
DISCOVERY AND OCCUPATION:
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 - Possession
- Administration
Inchoate Title of Discovery
Is acquired by the claimant state
pending compliance with the second
requirement which is administration
b. Prescription
Continuous and uninterrupted
possession over a long period of time, just
like in civil law.
In international law, however, there is
no rule of thumb as to the length of time
needed for acquisition of territory through
prescription.
Grotius Doctrine if Immemorial
Prescription:
Uninterrupted possession going beyond
memory
c. Cession (by treaty)
Territory is transferred from 1 state to
another by agreement between them (sale,
donation, barter/exchange and
testamentary disposition)
d. Subjugation
Having been previously conquered or
occupied in the courses of war of the enemy,
is formally annexed to it at the end of the
war. Conquests alone inchoate right since it
is the formal act of annexation that
completeness acquisition.
e. Accretion
Based on Accessio Cedat Principali
accomplished through both natural or
artificial processes as by the gradual and
imperceptible deposit of soil on the coasts of
the country through the action of the water
or by reclamation projects.
Doctrine of Effective Occupation
Under this doctrine, discovery of terra nullius
is not enough to acquire title to the discovered
territory
The Internal Waters
Also called as National or Inland, are those
found in the bodies of water within the land mass
and the waters in gulfs and bays up to the point
where the territorial waters begin.
Pua, Rochel April
The Maritime or Fluvial Domain
This consists of the bodies of water
within the land mass and the waters
adjacent to the coasts of a state to a
specified limit. Included in the maritime and
fluvial domain are landlocked lakes, rivers,
man-made canals, the waters in certain
gulds, bays and straits, and the territorial
sea.
Archipelago Doctrine
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 Philippines. (2nd sentence,
Article I, 1987 Constitution)
United Nations Convention on
the Laws of the Sea (UNCLOS)
3 International Conferences
have been called to formulate anew
law of the seas.
The conference have dealt with
such controversial matters as the
breadth of the territorial seas, use of
straits for international navigation,
continental shelf, concept of an
exclusive economic zone, freedom
of the high seas, status of
archipelagos and regime of islands.
1 st Conference: held in1956-58 at
Geneva Switzerland
2 nd Conference: held in1960 at
Geneva Switzerland
3 rd Conference: held in 1970 by
the UN
o Which resulted in the adoption
of a new Convention of the Law
of the Sea and became effective
on: November 16, 1994, signed
in Jamaica, 119 out of 150
conferee-states
Straight Baseline Method
Drawn connecting selected points on
the coast without appreciable departure
from the general shape of the coast
Thalweg Doctrine
For boundary rivers, in the
absence of an agreement between
the riparian states, the boundary
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 line is laid on the middle of the main
navigable channel.
Middle of the Bridge Doctrine
Where there is a bridge over a
boundary river, the boundary line is
the middle or center of the bridge.
Bays and Gulfs
A bay is a well-marked
indenation in the coast the area of
which at least is as large or larger
than, that of the semi-circle whose
diameter is a line drawn across its
mouth. Also referred to as the
juridical bay.
Strait
Narrow passageways
connecting two bodies of water. If
the distance between the two
opposite coast is not more than six
miles, they are considered internal.
Canals
T erritorial Sea
The belt of the sea located between the
coast and internal waters of the coastal state
on the one hand and the high seas on the
other, extending up to 12 nautical miles from
the low water mark or in case of archipelagic
state, from the baseline.
Right of Innocent Passage
Means navigation through the
territorial seas of a state for the purpose
of traversing that seas without enterning
internal waters
Case: Portugal v. India
Portugal has a territory in the
Indian Peninsula made up of the
three districts of Goa, Daman and
Diu. The district of Daman
comprises, in addition to its littoral
territory, two parcels of territory
completely surrounded by the
territory of India which constitute
enclaves: Dadra and Nagar-Aveli.
Portugal has been passing through
Indian territory through the years in
order to the enclaves of Dadra and
Nagar- Aveli.
Pua, Rochel April
However in 1954, the
Government of India prevented
Portugal from exercising this right
of passage. Portugal claims that
there was a local custom in its
favor with the right of passage over
the territory. Portugal claims that
the denial of passage by India was
done due to Indias open
campaign to annex Portugese
territories.
Existence of local custom
between two states. The Court says
that it is difficult to see why the
number of States between which a
local custom may be established
on the basis of long practice must
necessarily be larger than two.
There is no reason why long
continued practice between two
States accepted by them as
regulating their relations should
not form the basis of mutual rights
and obligations between the two
States.
The dispute arises at the time
of the creation of the obstacles.
The question was put to the Court
in respect of the dispute, which
has arisen between India and
Portugal with regard to obstacles
placed by India in the way of
passage. It was in support of this
contention that it invoked its right
of passage and asked the Court to
declare the existence of that right.
This being so, it is the eve of the
creation of these obstacles that
must be selected as the starting
point which to ascertain whether
or not Portugal possessed such a
right.
Right of passage. With regard to
private persons, civil officials and
goods in general, there existed
during the British and post-British,
periods a constant and uniform
practice allowing free passage
between Daman and the enclaves.
This practice having continued
over a period extending beyond a
century and a quarter unaffected
by the change of regime in respect
of the intervening territory which
occurred when India became
independent. Practice was
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 accepted as law by the Parties and
has given rise to a right and a
correlative obligation.
In 1954, a right of passage over
intervening Indian territory
between coastal Daman and the
enclaves and between the
enclaves, in respect of private
persons, civil officials and goods in
general, to the extent necessary, as
claimed by Portugal, for the
exercise of its sovereignty over the
enclaves, and subject to the
regulation and control of India.
There was a clear distinction
between the practice permitting
free passage of private persons,
civil officials and goods in
general, and the practice requiring
previous authorization, as in the
case of armed forces, armed
police, and arms and
ammunition. There was no right of
passage in favour of Portugal
involving a correlative obligation
on India has been established in
respect of armed forces, armed
police, and arms and ammunition.
The course of dealings established
between the Portuguese and the
British authorities with respect to
the passage of these categories
excludes the existence of any such
right. The practice that was
established shows that, with regard
to these categories, it was well
understood that passage could
take place only by permission of
the British authorities. This
situation continued during the
post-British period.
No breach of international
obligation when custom was
subject to regulation of the other
party. In view of the tension then
prevailing in intervening Indian
territory, the Court is unable to
hold that Indias refusal of passage
to the proposed delegation and its
refusal of visas to Portuguese
nationals of European origin and to
native Indian Portuguese in the
employ of the Portuguese
Government was action contrary to
its obligation resulting from
Portugals right of passage.
Pua, Rochel April
Portugals claim of a right of
passage is subject to full
recognition and exercise of Indian
sovereignty over the intervening
territory and without any immunity
in favour of Portugal. Indias refusal
of passage in those cases was, in
the circumstances, covered by its
power of regulation and control of
the right of passage of Portugal.
Contiguous Zone
This refers to the waters beyond the
territorial seas but not inexcess of twelve
miles from the outer limits of the territorial
sea over which the coastal state exercises a
protective jurisdiction to prevent the punish
infringements of its cutoms, fiscal,
immigration or sanitary regulations (1982
Convention on the Law of the Sea)
Exclusive Economic Zone
It is that expanse of sea extending two
hundred nautical miles from the coast or
baselines of the state over which it asserts
exclusive jurisdiction and ownership over all
living and non-living resources found
therein.
Continental Shelf
Is the seabed and subsoil of the
submarine areas that extend beyond its
territorial sea throughout the natural
prolongation of its land territory to the outer
edge of the continental margin, or to a
distance of 200 nautical miles from the
baselines from which the breadth of the
territorial sea is measured where the outer
edge of the continental margin does not
extend up to that distance. (Art 76, par 1,
UNCLOS)
High Seas
It is treated as res communes or re
nullus, and thus, are not territory of a
particular state. The waters which do not
constitute the internal waters, archipelagic
waters, territorial sea and exclusive
economic zone of a state. They are beyond
the jurisdiction and sovereign rights of
States.
THE PHILIPPINE TERRITORY
Philippine Baseline Laws
Page

1. Normal Baseline Method
Drawn from the low-water mark of the
coast, to the breadth claimed, following its
sinuousness and curvatures but excluding
the internal waters in the bays and gulfs
2. Straight Baseline Method
Joining appropriate points may be
employed in drawing the baseline from
which the breadth of th eterritorial seas is
measured. (Art 7 UNCLOS)
(3) Government
Defined as the agency through which the will
of the state is formulated, realized and
expressed.
In international law, it is the instrumentality
that represents the state in its dealings with
other international persons. The state can assert
rights, and is held responsible, through its
government.
FORMS OF GOVERNMENT:
A form of government, or form of state
governance, refers to the set of
political institutions by which a government of
a state is organized in order to exert its powers
over a house in the congress body politic.
Synonyms include "regime type" and "system of
government"
1. Democracy (Rule by majority)
Is best described by Abraham Lincoln as a
form of government that is of the people, by
the people and for the people. It is a form of
government, which allows people to choose
the representatives amongst themselves who
are given the rights to form the government. A
democracy usually has a standard Constitution
that confers certain rights of freedom and
expression (and many other rights) to its
citizens and expects certain duties from them
and a uniform law to govern the entire nation.
Direct or pure democracy
One in which the will of the State is
formulated or expressed directly and
immediately through the people in a mass
meeting or primary assembly
Pua, Rochel April
Indirect, representative or republican
democracy
One in which the will of the state is
formulated and expressed through the agency
of a relatively small and select body of persons
chosen by the people to act as their
representatives
2. Aristocracy
One in which political power is
exercised by a few privileged class
3. Monarchy (Rule by monarch)
Monarchies are one of the oldest
political systems known, developing from
tribal structure with one person the absolute
ruler.
Monarchy implies rule or the power of
government in the hands of an individual
who has inherited the role and expects to
bequeath it to the descendants. Currently
there exist thirty-one monarchs reigning over
forty-five extant sovereign monarchies in the
world, sixteen of which are Commonwealth
Realms that formally recognize Queen
Elizabeth II as their head of state and Prince
Charles as heir.
Kinds of monarchy:
a. Absolute monarchy
- one in which the ruler rules by
divine right
b. Limited monarchy
- one in which the ruler rules in
accordance with the
constitution
4. Presidential
One in which the state makes the
executive constitutionally independent of the
legislature as regards his policies and acts
5. Parliamentary
One in which the state confers upon the
legislature the power to terminate the tenure
of office of the real executive
6. Unitary
One in which the control of national
and local affairs is exercised by the central
or national government
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 6. Federal
One in which the powers of government
are divided between two sets of organs, one
for national affairs and the other for local
affairs.
The politics of the Philippines takes place
in an organized framework of a presidential,
representative and democratic republic
whereby the president is both the head of
state and the head of government within a
pluriform multi-party system. This system
revolves around three separate and sovereign
yet interdependent branches : the legislative
branch (the law-making body), the executive
branch (the law-enforcing body), and the
judicial branch (the law-interpreting body).
Executive power is exercised by the
government under the leadership of the
president.
Legislative power is vested in both the
government and the two-chamber congress --
the Senate (the upper chamber) and the House
of Representatives (the lower chamber).
Judicial power is vested in the courts with
the Supreme Court of the Philippines as the
highest judicial body.
Despotism
Is the form of rule wherein a single leader
rules the entire population and all his or her
subjects are considered to be his or her slaves.
The Pharaoh of Egypt is an example of this sort
of rule. In case of contemporary contexts, the
term implies tyrannical rule.
Dictatorship
Implies rule by an individual who has
complete power over the country. Although
there have been several definitions of
dictatorship, broadly all the various types and
forms of dictatorship tend to exhibit
totalitarian characteristics. When the power of
the government does not come from the
people, is unlimited and tends to expand their
scope of power to control every aspect of
people's life, the form can be termed ad
dictatorship.
Oligarchy (Rule by Few)
Is the form of government where a small
group has the power to govern or rule. Aristotle
had coined the term oligarchy as synonym for
rule by the rich (which is known as plutocracy),
oligarchy now simply refers to rule of the
privileged few.
Pua, Rochel April
Plutocracy
Refers to a form of government, which is
run by the rich. A Plutocracy is a form of
government, which is controlled by a small
group of extremely wealthy individuals. In
todays world many political analysts argue
there are still some situations in which private
corporations and wealthy individuals have a
strong hold over the government, which can be
synonymous with plutocracy.
Communist Government
Is a form of Government in which the state
is governed by a one-party system. This form of
government works on the lines of Marxism-
Leninism. Thus, the state and the communist
party claim to act in accordance to the wishes
of the working class or the peasantry. Although
a communist government claims to implement
democratic dictatorship of the proletariat, it
tends to incline towards the abolition of the
state and implementation of communism.
RECOGNITION
Recognition
It is an act by which a state acknowledges the
existence of another state, government or belligerent
community and indicates its willingness to deal with the
entity as such under the rules of international law.
DOCTRINES ON RECOGNITION OF GOVERNMENT
1. Wilson/Tobar Doctrine
Precludes recognition of government
established by revolution, civil war, coup detat
or other forms of internal violence until the freely
elected representatives of the people have
organized a constitutional government
2. The Estrada Doctrine
Dealing or not dealing with the government
established through a political upheaval is not a
judgement on the legitimacy of the said
government (Mexican Minister Genaro Estrada.)
3. Stimson Doctrine
Precludes recognition of any government
established as a result of external aggression (US
Sec of State Henry Lewis Stimson)
EFFECTS OF RECOGNITION OF A STATE OR
GOVERNMENT
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 1. Diplomatic relations;
2. Right to sue in courts of recognizing state;
3. Right to possession of properties of predecessor
on the recognizing state;
4. All acts of the recognized state or government
are validated retroactively, preventing the
recognizing state from passing upon their legality
in its own courts. (Act of State Doctrine)
PRACTICAL CRIT ERIA FOR RECOGNITION OF A
GOVERNMENT
1. It has control of the administrative machinery of
the state with popular acquiescence; and
2. It is willing and able to comply with its
international obligations
KINDS OF RECOGNITION OF GOVERNMENT
De Jure Recognition De Facto Recognition
Relatively permanent Provisional (duration of
armed struggle)
Vests title to properties of Does NOT vest title to
government abroad properties of government
abroad
Brings about full diplomatic Limited to certain juridical
relations relations
(4) Sovereignty
Supreme and uncontrollable power inherent in a
State by which that State is governed.
The government possesses full control over its
own affairs within a territorial geographical area or
limit
Case: Province of North Cotobato v. Government of
the Republic
of the Philippines, October 14, 2008
FACT S:
On Augusts 5, 2008, the Government of the
Republic of the Philippines Peace Panel on
Ancestral Domain (GRP), represented by its
Chairman Rodolfo C. Garcia, and the MILF,
represented by its Chairman Mohagher Iqbal,
were scheduled to sign a Memorandum of
Agreement on the Ancestral Domain (MOA-AD)
Aspect of the GRP-MILF Tripoli Agreement on
Peace of 2001 in Kuala Lumpur, Malaysia. The
MOA-AD, among others, mentions the
Bangsamoro Juridical Entity (BJE) to which it
grants the authority and jurisdiction over the
Ancestral Domain and Ancestral Lands of the
Bangsamoro. The signing of the MOA-AD
between the GRP and the MILF did not
materialize, however, for upon motion of
Pua, Rochel April
petitioners, the Supreme Court (SC) issued a
Temporary Restraining Order enjoining the GRP
from signing the same.
ISSUES:
1. Did respondents violate constitutional and
statutory provisions on public consultation
and the right to information when they
negotiated and later initialed the MOA-AD?
2. Does MOA-AD violate Philippine national
territory and sovereignty?
HELD:
1. Yes. The peoples right to information
on matters of public concern under Sec. 7,
Article III of the Constitution is in splendid
symmetry with the state policy of full public
disclosure of all its transactions involving public
interest under Sec. 28, Article II of the
Constitution. The right to information
guarantees the right of the people to demand
information, while Section 28 recognizes the
duty of officialdom to give information even if
nobody demands. The complete and effective
exercises of the right to information (Sec 7, Art
III) necessitates that its complementary
provision on public disclosure (Sec 28, Art II) is
self-executy Zachary Leviory in nature, subject
only to reasonable safeguards or limitations as
may be provided by law.
The contents of the MOA-AD are a matter of
paramount public concern involving public
interest in the highest order. In declaring that
the right to information contemplates steps and
negotiations leading to the consummation of
the contract, jurisprudence finds no distinction
as to the executory nature or commercial
character of the agreement.
An essential element of these twin freedoms is
to keep a continuing dialogue or process of
communication between the government and
the people. Corollary to these twin rights is the
design for feedback mechanisms. The right to
public consultation was envisioned to be a
species of these public rights.
2. Yes. No province, city or municipality,
not even the ARMM, is recognized under our
laws as having an associative relationship
with the national government. Indeed, the
concept implies powers that go beyond
anything ever granted by the Constitution to any
local or regional government. It also implies the
recognition of the associated entity as a state.
The Constitution, however, does not
Page
 contemplate any state in this jurisdiction other
than the Philippine State, much less does it
provide for a transitory status that aims to
prepare any part of Philippine territory for
independence.
It is not merely an expanded version of the
ARMM, the status of its relationship with the
national government being fundamentally
different from that of the ARMM. Indeed, BJE is
a state in all but name as its meets the criteria of
a state laid down in the Montevideo
Convention, namely, a permanent population, a
defined territory, a government, and a capacity
to enter into relations with other states.
Every assuming arguendo that the MOA-AD
would not necessarily severe any portion of
Philippine territory, the spirit animating it
which has betrayed itself by its use of the
concept of association runs counter to the
national sovereignty and territorial integrity of
the Republic.
KINDS OF SOVEREIGNTY:
1. Internal
Supreme authority of a state within its
territory
2. External
Does not have any force in foreign territory
Q: Is sovereignty absolute?
A: In the domestic sphere YES!
In international sphere NO!
Case: Tanada v. Angara, 272 SCRA 18 (1997)
While sovereignty has traditionally been
deemed absolute and all-encompassing on the
domestic level, it is however subject to restrictions
and limitations voluntarily agreed to by the
Philippines, expressly or impliedly, as a member of
the family of nations.
By the doctrine of incorporation, the country is
bound by generally accepted principles of
international law, which are considered to be
automatically part of our own laws.
One of the oldest and most fundamental rules in
international law is pacta sunt servanda
international agreements must be performed in
good faith.
A treaty engagement is not a mere moral
obligation but creates a legally binding obligation on
the parties. By their inherent nature, treaties limit or
restrict the absoluteness of sovereignty.
Pua, Rochel April
By their voluntary act, nations may surrender some
aspects of their state power in exchange for greater
benefits granted by or derived from a convention or
pact.
States, like individuals, live with coequals, and
in pursuit of mutually covenanted objectives and
benefits, they also commonly agree to limit the
exercise of their otherwise absolute rights.
Thus, a states sovereignty cannot in fact and in
reality be considered absolute. Certain restrictions
enter into the picture:
Limitations imposed by the very nature of
membership in the family of nations; and Limitations
imposed by treaty stipulations.
Thus, when the Philippines joined the UN as
one of its 51 charter members, it consented to
restrict its sovereign rights under the concept of
sovereignty as AUTO-LIMITATION.
The underlying consideration in this partial
surrender of sovereignty is the reciprocal
commitment of the other contracting states in
granting the same privilege and immunities to the
Philippines, its officials and its citizens.
Clearly, a portion of sovereignty may be waived
without violating the Constitution, based on the
rationale that the Philippines adopts the generally
accepted principles of international law as part of
the law of the land and adheres to the policy of . . .
cooperation and amity with all nations.
EFFECT OF CHANGE IN SOVEREIGNTY
The effect is that the political laws of the former
sovereign are not merely suspended but abrogated. As
they regulate the relations
between the ruler and the rules, these laws fall to the
ground ipso facto unless they are retained or re-enacted
by positive act of the new sovereign.
Non-political laws, by contrast, continue in operation,
for the reason also that they regulate private relations
only, unless they are changed by the new sovereign or are
contrary to its institutions.
RECOGNITION OF STATES
THEORIES ON RECOGNITION OF STATES
1. Declaratory School
- Merely affirms an existing fact like the
possession by the state of the essential
elements.
- Discretionary and political
2. Constitutive School
- It is the act of recognition that constitutes
the entity into an international person.
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 - Compulsory and legal State may take measures including the use of
- May be compelled once the elements of a force as may be necessary to counteract any
state are established danger to its existence

BELLIGERANCY
Belligerancy
status of parties legally at war
CONDIT IONS RECOGNITION OF BELLIGERENCY
1. There must be an organized civil government
directing the belligerency
2. The rebels must occupy a substantial portion of
the territory of the state
3. The conflict between the legitimate government
and the rebels must be serious, making the
outcome uncertain.
4. The rebels must be willing and able to observe
the laws of war.
EFFECTS OF RECOGNIT ION OF BELLIGERENCY
1. Responsibility for acts of rebels resulting to injury
to nationals of recognizing state shall be shifted
to rebel government.
2. The legitimate government recognizing the
rebels as belligerents shall observe laws or
cutoms of war in conducting hostilities.
3. Third states recognizing belligerency should
maintain neutrality.
Recognition is only provisional and only for
purposes of hostilities
The Principle of State Continuity
It means that the legal existence of a state continues
notwithstanding changes in the size of its population or
territory or in the form or leadership of its government as
long as the four essential elements of statehood are
retained.
Creation of New State
By revolution, unification, secession, assertion of
independence, agreement and attainment of civilization.
Extinction of State
By extinction or emigration en mass of its population,
loss of territory, overthrow of government resulting in
anarchy.
FUNDAMENTAL RIGHT S OF ST ATES
1. Right to Existence and Self-Defense
Most comprehensive as all the rights of state
flow from it
Aggression
The use of armed force by a State
against the sovereignty, territorial integrity or
political independence of another State, or
in any other manner inconsistent with the
Charter of the United Nations, as set out in
this definition.
ACTS OF AGGRESSION
1. Invasion or attack of a state
2. Bombardment of state
3. Blockade of ports or coasts
4. Use of armed forces within a state in
contravention to any agreement
5. Action of state in allowing its territory for
an act of aggression against a third state
6. Sending of armed groups or mercenaries
which carry an act of armed force
against another state
REQUISITES FOR PROPER EXERCISE
OF RIGHT OF SELF-DEFENSE
a. Armed attack
b. Self-defensive action taken by
the attacked state must be reported
immediately to the Security Council
c. Such action shall not in any way affect
the right of the Security Council to take
at any time action as it deems necessary
to maintain or restore international
peace and security
Collective Self Defense
Right of states to come to the defense
of a state whose situation meets the
condition of legitimate individual self-
defense under the UN Charter
Abatement Doctrine
When conditions in the territory of a
neighboring state might result in anarchy
or disorder and the authorities of the state
are unable to restore order and prevents
spinning over the territory of another the
latter has the duty to intervene even by
armed force to restore order in the border
and to end the chaos.

Pua, Rochel April Page

 THE STATE IS DEEMED TO HAVE
2. Right of Sovereignty and Independence WAIVED ITS IMMUNITY:

Sovereignty 1. When it gives consent at the time the

Totality of the powers, legal competence, proceeding is instituted;
and privileges arising from customary 2. When it takes steps relating to the merits
international law, and not dependent on the of the cases before invoking immunity;
consent of another state 3. When by treaty or contract it had
previously given consent
Independence 4. When by law or regulation in force at the
Means freedom from control by other state time complaint arose it has indicated
or group of states and not freedom from the that it will consent to the institution of
restrictions that are binding on all states forming the proceedings
the family of nations; carries with it by necessary
implication the correlative duty if non- 5. Right to Territorial Integrity and
intervention Jurisdiction
Intervention The territory of a state usually consists of the
An act by which a state interferes with the terrestrial domain, maritime and fluvial domain
domestic or foreign affairs of another state and the aerial domain
through the employment of force or threat or
force which may be physical, political or 6. Right of Legation
economic It is the right of a state to maintain
diplomatic relations with other states. The right
WHEN INTERVENTION IS to send diplomatic representatives is known as
SANCT IONED: the active right of legation. The right to receive
diplomatic representatives is known ass the
1. As an act of self-defense passive right of legation.
2. When decreed by the Security Council as
a preventive or enforcement action for the AGENTS OF DIPLOMATIC INTERCOURSE
maintenance of international peace and
security 1. Head of state
3. When such action is agreed upon in a - Embodiment of and represents, the
treaty sovereignty of the state
4. When requested from fellow states or from - Enjoys the right to special protection
the UN by the parties to a dispute or a for his physical safety and the
state beset by rebellion preservation of hiss honor and
reputation
Drago Doctrine - His quarters, archives, property and
Intervention not allowed for the purpose means of transportation are inviolate
of making a state pay its public debts. - (Principle of Exterritoriality)
2. Foreign Secretary or Minister
3. Right of Equality 3. Members if Diplomatic Service
Every state is entitled to the same protection 4. Special Diplomatic Agents
and respect as a re available to other states appointed by Head of the State
under the rules of international law. 5. Envoys Ceremonial

Doctrine of State Immunity FUNCTIONS OF DIPLOMATIC MISSIONS

As a consequence of the independence,
territorial supremacy and equality, a state enjoys 1. Representing sending state in receiving
immunity from the exercise of jurisdiction state
(legislative, executive or judicial) by another 2. Protecting in receiving state interests of
state, unless it has given consent, waived its sending state and its nationals
immunity, or voluntarily submitted to the 3. Negotiating with government of receiving
jurisdiction of the court concerned. state
4. Promoting friendly relations between
sending and receiving states and

Pua, Rochel April Page

 developing their economic, cultural and
scientific relations
5. Ascertaining by all lawful means
conditions and developments in receiving
state and reporting thereon to government
of sending state
6. In some cases, representing friendly
governments at their request
Agreation
Process in appointment of diplomatic envoy
where states resort to an informal inquiry
(enquiry) as to the acceptability of a particular
envoy, to which the receiving state responds with
an informal conformity (agreement).
Letre De Creance (Letter of Credence)
With the name, rank, and general
character of his mission, and a request for
favorable reception and full credence.
KINDS OF CONSULS
Immunities and privileges are also available to
the members of the consular post their families
and their private staff
Waiver of immunities may be by the appointing
state
Case: Jeffrey Liang v. People, March 26, 2001
FACTS:
Two criminal informations for grave oral
defamation were filed by CABAL, a member of the
clerical staff of the Asian Development Bank
against LIANG, a Chinese national who was
employed as an Economist by the said bank
MTC of Mandaluyong City, acting pursuant to
an advice from the Department of Foreign Affairs
that LIANG enjoyed immunity from legal
processes, dismissed the case
On petition for certiorari and mandamus, the
RTC set aside the order of the MTC
Hence, this petition
LIANG argues for the diplomatic immunity of
the ADB, its officials and staff, from legal and
judicial processes in the Philippines

CONSULES MISSI CONSULES ELECTI ISSUE:

Professional or career
consuls who are required to
devote their full time to
discharge their duties
Nationals of the sending
state
Perform consular functions
only in addition to their
regular callings.
May or not be nationals of
the sending state
WON Liang can claim diplomatic immunity for
complaints against for grave oral defamation
HELD
NO, slander cannot be said to be covered by
the immuntiy granted to ADB employees
regarding acts performed by themn in their official

Ranks RATIO
Nowhere in the assailed decision is diplomatic
1. Consul-general heads immunity denied
several consular districts, or one However, the issue in this case is not really
exceptionally large consular about diplomatic immunity but whether or not the
district statements allegedly made by LIANG were uttered
2. Consul takes charge of a small district or town while in the performance of his official functions,
or port in order for this case to fall squarely under the
3. Vice-consul assists the consul provisions of Section 45 (a) of the "Agreement
4. Consular agent usually Between the Asian Development Bank and the
entrusted with the performance Government of the Republic of the Philippines
of certain functions by the Regarding the Headquarters of the Asian
consul Development Bank ," to wit: Officers and staff of
the Bank, including for the purpose of this Article
PRIVILEGES AND IMMUNITIES ACCORDED TO experts and consultants performing missions for
DIPLOMATIC ENVOY the Bank, shall enjoy the following privileges and
1. Inviolability of their correspondence, archives immunities: (a) Immunity from legal process with
and other documents respect to acts performed by them in their official
2. Freedom of movement and travel capacity except when the Bank waives the
3. Immunity from jurisdiction for acts performed in immunity.
official capacity After careful consideration, the Court held that
4. Exemption from certain taxes and customs duties it had no cogent reason to disturb its Decision of
January 28, 2000. As the Court has stated therein,

Pua, Rochel April Page

 the slander of a person, by any stretch, cannot be
considered as falling within the purview of the
immunity granted to ADB officers and personnel
Extraterritoriality
Applies only to persons and is based on treaty or
convention discredited because of rise of nationalism and
sovereign equality of states
Exteritorriality
Exception of persons and property from local
jurisdiction on basis of international customs.
TREATY
Treaty
An international agreement concluded between
states in written form and governed by international law
whether embodied in a single instrument or in two or
more related instruments.
(Art 2, Vienna Convention on the Law of Treaties, 1969)
REQUISITES OF A VALID TREATY
1. Entered into by parties having treaty-making
capacity.
2. Through their authorized organs or
representatives.
3. Without attendance of duress, fraud, mistake, or
other vices of concent.
4. Lawful subject matter and object; and
5. Ratification in accordance with their respective
constitutional processes.
Case: Bayan v. Executive Secretarty Zamora,
October 10, 2000
Constitutionality of the VFA.
Valid Treaty Despite Treatment As Ea Only
By The Other State. A treaty is defined under
Article 2 of the Vienna Convention on the Law
of Treaties as "an international instrument
concluded between States in written form and
governed by international law, whether
embodied in a single instrument or in 2 or more
related instruments, and whatever its particular
designation."
Section 25, Article XVIII reads: "After the
expiration in 1991 of the Agreement between
the Republic of the Philippines and the United
States of America concerning Military Bases,
foreign military bases, troops, or facilities shall
not be allowed in the Philippines except (1)
under a treaty (2) duly concurred in by the
Senate and, when the Congress so requires,
Pua, Rochel April
ratified by a majority of the votes cast by the
people in a national referendum held for that
purpose, and (3) recognized as a treaty by the
other contracting State." Under this provision, it
the VFA a treaty? Yes, the phrase "recognized as
a treaty" means that the other contracting party
accepts or acknowledges the agreement as a
treaty. US need not submit the VFA to the US
Senate for concurrence pursuant to its
Constitution, because this is to accord too strict
a meaning to the phrase.
It is inconsequential whether the US treats
the VFA merely as an executive agreement (EO)
because, under international law, an executive
agreement is as binding as a treaty. In
international law, there is no difference
between treaties and EOs in their binding effect
upon states, as long as the negotiating
functionaries have remained within their
powers. In any case, the records reveal that the
US Government, through Ambassador Hubbard,
has stated that the US government has fully
committed to living up to the terms of the VFA.
For as long as the US acknowledges the VFA as
a treaty, and binds itself further to comply with
its obligations under the treaty, there is a
compliance with the mandate of the
Constitution.
An EO is binding. Commissioner of Customs
vs. Eastern Sea Trading states that EOs are
binding even without concurrence of the Senate
or Congress because the right of the Executive
to enter into binding agreements without the
necessity of subsequent Congressional approval
has been confirmed by long usageThe validity
of these has never been seriously
questioned by our courts.
Ratification is an executive act, undertaken by
the head of the state or of the government, as
the case may be, through which the formal
acceptance of the treaty is proclaimed. It is
equivalent to final acceptance. The consent to
be bound is expressed by ratification when:
[1] the treaty provides for such ratification,
[2] it is otherwise established that the
negotiating
States agreed that ratification should be
required
[3] the representative of the State has signed
the
treaty subject to ratification, or
[4] the intention of the State to sign the
treaty subject to ratification appears from
the full powers of its representative, or
was expressed during the negotiation.
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 The power to ratify is vested in the President
and not in the legislature. The role of the Senate
is limited only to giving or withholding its
consent, or concurrence, to the ratification. The
role of the Senate in relation to treaties is
essentially legislative in character. The
President acted within the confines and limits of
the powers vested in him by the Constitution.
Even if he erred in submitting the VFA to the
Senate for concurrence under Section 21,
instead of Section 25, still, the President may
not be faulted or scarred, much less be
adjudged guilty of committing an abuse of
discretion in some patent, gross, and capricious
manner.
*Sir: issue: VFA-concurred in by our senate, but
not by the US senate.
SC: VFA still binding on us/is still a binding
treaty because it is not our business to dwell
into the domestic law of the other contracting
party; we are satisfied with the Senators
pronouncement that the US will recognize it.
STEPS IN TREATY MAKING PROCESS
1. Negotiation
Discussion of the provisions of the proposed
treaty, undertaken by the representatives of the
contracting parties who are provided with
credentials known as full powers or pleins
pouviors.
2. Signature
Primarily intended as a means of
authenticating the instrument and symbolizing
the good faith of the contracting parties.
Practice of Aternat
Arrangement under which each negotiator is
allowed to sign first on the cocpy of the treaty
which he will bring home to his own country, the
purpose being to preserve the formal
appearance of equality among the contracting
states and to avoid delicate questions of
precedence among the signatories.
3. Ratification;
Act by which the state formally accepts the
procvisions of the treaty concluded by its
representative.
4. Exchange of instruments of ratification;
5. Registration with the UN
Pua, Rochel April
Concordat
A treaty or agreement between eccllesiastical and
civil powers to regulate the relations betweeen the
church and the state in those matters which , in some
repect are under the jurisdiction of both.
DOCTRINES IN TREATIES
Jus Cogens
A jus cogens or peremptory or is a norm which
States cannot derogate or deviate from in their
agreements. It is a mandatory norm and stands on a
higher category than a jus dispositivum norm which
States can set aside or modify by agreement
A Fiduciary Theory of Jus Cogens Evan J
Criddles and Evan Fox Decent
Case: Vinuya v. Executive Secretary
Libellants and claimants of the Schooner Amistad,
40 U.S.(15 pet.)518(1841)
Pacta Sunt Servanda
It simply means that treaties must be observed in
good faith despite hardship on the contracting state,
such as conflicts beween the treaty and its constitions
or prejudice to the national interest as a result of the
operation of the treaty.
As a general rule, a party must complyh with the
provisions of a treaty and cannot ignore or modify it
without the consent of the other signatory. Willful
disregard or violation of treaties without just cause is
frowned upon by thee society of nations.
Clausula Rdvdebus Sic Stantibus
1. It applies only to treaties of indefinite duration.
2. The vital change claimed as justification for the
discontinuance of the treaty must have been
unforeseen or unforeseeable and must not have
been caused by the party invoking the doctrine.
3. The doctrine must be invoked within a reasonable
time from the occurrence of the change asserted.
4. The doctrine cannot operate retroactively upon
the provisions of the treaty already executed priior
to the change in circumstance. (Salonga and Yap,
310).
Case: Fisheries Jurisdiction Case
United Kingdom v. Iceland
Iceland claims that its agreement with
the UK not to extend its fisheries
jurisdiction was no longer binding due to
fundamental change of circumstances.
Held:
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 For this to be a ground for invoking the
termination of a treaty, it should have
resulted in a radical transformation of the
extent of the obligations still to be
performed. The change must have
increased the burden of the obligations to
be executed to the extent of rendering the
performance something essentially
different from that originally undertaken.
This is not the case here, Iceland cannot
validly invoke rebus sic stantibus in
claiming the termination of the treaty.
Most Favored Nation Clause
Pledge made by a contracting party to a treaty to
grant to other party treatment not less favorable than
that which had been given or may be granted to the
most favored among parties.
TERMINATION OF TREATIES
1. Expiration of term;
2. Accomplishment of purpose;
3. Impossibility of performance;
4. Loss of subject matter;
5. Desuetude
Desistance of parties by express mutual consent
or exercise of right of renunciation when
allowed;
6. Extinction of one of parties, if treaty is bipartite;
7. Novation;
8. Occurrence of vital change of circumstance;
9. Outbreak of war; and
10. Voidance of treaty because of:
Defects in constitution;
Violation of its provision by one party;
Incompatibility with international law;
11. Application of the doctrine of rebus sic stanlibus;
12. The doctrine of jus cogens(or the emergence of a
new preemptory norm of general international law
which renders void any any existing treaty
conflicting with such norm.)
Protocol de Clture
An instrument which records the winding up of the
proceedings of a diplomatic conference and usually
includes a reproduction of the tets of treaties,
conventions, recommendations and other acts agreed
upon and siugned by the plenipotentiaries attending the
conference. It is not the treaty itself and doesnot require
the concurrence of the senate. (Tanada v. Angara, G.R.
No. 118295, May 2, 1997)
NATIONALITY AND STATELESSNESS
Pua, Rochel April
Nationality
Membership in a political community with all its
concomitant rights and obligations. It is the tie that binds
the individual to his state from which he can claim
protection and whose laws he is obliged to obey.
Doctrine of Effective Nationality
Expressed in Art. 5 of the Hague Convention of
1930 on the Conflict of Nationality Laws that a
person having more than one nationality shall be
treated as if he had only one either the nationality
of the country in which he is habitually and
principally resident or the nationality of the country
with which the circumstances he appears to be in
face most closely connected
Case: Frivaldo v. Comelec, G.R. No. 897193, June
23, 1899
The Nottobohm Case is not relevant in the
petition before us because it dealt with a
conflict between the nationality laws of two
states as decided by a third State. No third State
is involved in the case at bar, in fact, even the
US is not claiming Frivaldo as its national. The
sole
question presented to us is WON Frivaldo is a
citizen of the Philipines under our own laws,
regardless of other nationality laws. We can
decide this question alone as sovereign of our
own territory, conformable the Sec. 1 of the
Hague Convention (1903) which provides: it is
for each State to determine under its laws who
are its
nationals.
Statelessness
Condition or status of an individual who is born
without any nationality or who loses his nationality
without retaining or acquiring another.
De Jure Statelessness
Is where there exists no recognized state in
respect of which the subject has a legally meritorious
basis to claim nationality,
De Facto Statelessness
Is where the subject may have a legally
meritorious claim but is precluded from assertin it
because of practical considerations such as cost,
circumstances of civil disorder, or the fear of
persecution.
ALIENS
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Alien
Is a person in a country who is not acitizen of that
country.[
Treatment of Aliens
Flowing from its right to existence and as an attribute
of sovereignity, no state is under obligation to admit
aliens. The state can determine in what cases and under
what conditions it may admit aliens.
1. The state has the right to expel aliens from its
territory through;
Deportation
Expulsion of an alien considered
undesirable by the local state, usually but
not necessarily to his own state.
Reconduction
Forcible conveying of aliens back to
their home state without any formalities.
2. The alien must accept the institutions of local
states as he finds them.
Doctrine of State Responsibility
State may be held liable for injuries and damages
sustained by the alien while in the territory of the state
provided:
1. The act or omission constitutes an international
deliquency;
2. The act or omission is directly or indirectly
imputable to the state;
3. Injury to the claimant state indirectly because of
damge to its national.
Calvo Clause
It is a stipulation by virtue of which an alien
waives or restricts his right to appeal to his own state
in connection with any claim arising from a contract
with a foreign state and limits himself to the remedies
available under the law of that state.
Drago Doctrine
In 1902, Great Britain, Italy and Germany
established a blockade against Venezuela in order to
enforce certain contractual and other claims against
it, leading Foreign Minister Drago of Argentina to
formulate the doctrine that a public debt cannot
give rise to the right of intervention.
This principle was later adopted in the Second
Hague Conference, but subject to the qualification
that the debtor state should not refuse or neglect to
reply to an offer of arbitration, or, after accepting the
offer, prevent any compromis from being agreed
Pua, Rochel April
upon, or, after the arbitration, fail to submit to the
award. This qualification is known as the Porter
resolution.
Refugee
A person who, owing to well founded fear of being
persecuted for reasons of race, religion, nationality,
membership of a particular social group or political
opinion, is outside the country of his nationality, and is
unable or owing to such fear, is unwilling to avail himself
of the protection of that country; or who, not having a
nationality and being outside the county of his former
habitual residence, is unable or owing to such fear, is
unwilling to return to it. (Convention Relating to the
Status of Refugees, Art. 1 A(2)).
Non-Refoulement
Prohibitsa state to return or expel a refugee to
the territory where he escaped because his life or
fredom is threatened. The state is under obligation to
grant temporary asylum (Refugee Convention of
1951).
Asylum
A place of refuge, sanctuary, or shelter,
especially an institution for the maintenance and
care of people requiring special assistance.
Right of Asylum
Refuge in another state
Every foreign State can be at least a
provisional
asylum for any individual, who, being persecuted
in his home State, goes to another State. In the
absence of any international treaty stipulating
the contrary, no state is, by international laws,
obliged to refuse admission into its territory to
such a fugitive or in case he has been admitted,
to expel him or deliver him up to the prosecuting
state.
The right of asylum is not a right possessed
by an alien to demand that a state protect him
and grant him asylum. At present, it is just a
privilege granted by a state to allow an alien
escaping from the persecution of his country for
political reasons to remain and to grant him
asylum.
Diplomatic Asylum
Refugee in another state for political offense,
danger to life or no assurance of due process.
Extradition
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 The removal of an accused from the Philippines with
the object of placing him at the disposal of foreign
authorities to enable the requesting state or government
to hold him in connection with any criminal investigation
directed against him or the execution of a penalty
imposed on him under the penal or criminal law of the
requesting state or government (P.D. 1069, Sec. 2
(a)).
International Extradition and Interstate Rendition
GENERAL PRINCIPLES IN EXTRADITION
1. Basis: a treaty; based on consent of the parties
2. Principle of Specialty
A fugitive who is extradited may be tried only
for the crime specified in the request for
extradition and included in the list of offenses in
the treaty
Non-List Type of Treaty
Offenses punishable under the laws of boths
states by imprisonment of one year or more are
included among the extraditable offenses.
3. Any person may be extradited; he need not be a
citizen of the requesting State
4. Political or religious offenders are generally not
subject to extradition
5. In the absence of special agreement, offense
must have been committed within the territory or
against the interest of the demanding State
6. In the absence of special agreement, offense
must have been committed within the territory or
against the interest of the demanding State
Case: Wright v. CA August 15, 1994
FACT S:
Australia and the Government of the Philippines
in the suppression of crime, entered into a Treaty of
Extradition on the 7th of March 1988. The said
treaty was ratified in accordance with the provisions
of Section 21, Article VII of the 1987 Constitution in
a Resolution adopted by the Senate on September
10, 1990 and became effective 30 days after both
States notified each other in writing that the
Pua, Rochel April
respective requirements for the entry into force of
the Treaty have been complied with. Petitioner
contends that the provision of the Treaty giving
retroactive effect to the extradition treaty amounts
to an ex post facto law which violates Section 21 of
Article VI of the Constitution.
ISSUE:
Can an extradition treaty be applied
retroactively?
HELD:
Applying the constitutional principle, the Court
has held that the prohibition applies only to criminal
legislation which affects the substantial rights of the
accused. This being so, there is no absolutely no
merit in petitioner's contention that the ruling of the
lower court sustaining the Treaty's retroactive
application with respect to offenses committed prior
to the Treaty's coming into force and effect, violates
the Constitutional prohibition against ex post facto
laws. As the Court of Appeals correctly concluded,
the Treaty is neither a piece of criminal legislation
nor a criminal procedural statute. It merely provides
for the extradition of persons wanted for
prosecution of an offense or a crime which offense
or crime was already committed or consummated at
the time the treaty was ratified.
Case: Government of the USA v. Purganan Sept. 24, 200
Jimenez contests arrest warrant issued against
him ICOW an extradition request by the US.
Extradition; treaty.The ultimate purpose of
extradition proceedings is to determine whether the
request expressed in the petition, supported by its
annexes & the evidence that may be adduced
during the hearing of the petition, complies with the
Extradition Treaty and Law; & whether the person
sought is extraditable. The proceedings are
intended merely to assist the requesting state in
bringing the accusedor the fugitive who has
illegally escapedback to its territory, so that the
criminal process may proceed therein. By entering
into an extradition treaty, RP is deemed to have
reposed its trust in the reliability or soundness of the
legal & judicial system of its treaty partner, as well as
in the ability & the willingness of the latter to grant
basic rights to the accused in the pending criminal
case therein.
Extradition proceedings are not equivalent to a
criminal case in which guilt or innocence is
determined. Consequently, an extradition case is
not one in which the constitutional rights of the
accused are necessarily available. It is more akin, if
at all, to a courts request to police authorities for
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 the arrest of the accused who is at large or has
escaped detention or jumped bail.
Having once escaped the jurisdiction of the
requesting state, the reasonable prima facie
presumption is that the person would
escape again if given the opportunity. Potential
extraditees do not have the right too a hearing for
the issuance of a warrant of arrest nor the right to
bail granted by the RTC.
Principles on Extradition:
1. No state is obliged to extradite unless there is a
treaty
2.Differences in legal system can be an obstacle to
interpretation of what the crime is
3. Religious and political offenses are not
extraditable.
> Procedure is normally through diplomatic
channels (how extradition rules ca be bypassed: US
v. Alvarez-Machain; how due process requirements
work in an extraditin case: Secretary of Justice v.
Lantion; USA v. Purgana & Crespo).
Case: Government of Hong Kong Special Admin Region
V. Olalia, Jr.
Bail Can Be Granted to Potential Extraditee on
Basis of Clear and Convincing Evidence
In its petition, Hong Kong sought the nullification
of the Manila RTCs December 20, 2001 Order
allowing Munoz to post bail, and April 10, 2002
Order denying the motion to vacate the said Order
filed by the Government of Hong Kong Special
Administrative Region, represented by the
Philippine Department of Justice. Hong Kong
alleged that both Orders were issued by the judge
with grave abuse of discretion amounting to lack or
excess of jurisdiction as there is no provision in the
Constitution granting bail to a potential
extraditee.
A potential extraditee may be granted bail on the
basis of clear and convincing evidence that the
person is not a flight risk and will abide with all the
orders and processes of the extradition court.
Thus held the Supreme Court in dismissing the
petition of the Government of Hong Kong Special
Administrative Region to nullify two orders by a
Manila Regional Trial Court (RTC) allowing a
potential extraditee to post bail.
In a unanimous decision penned by Justice
Angelina Sandoval-Gutierrez in Government of Hong
Kong v. Judge Olalia, Jr. and Munoz (GR No.
153675), the Court also remanded to the Manila
RTC, Branch 8 to determine whether Juan Antonio
Munoz is entitled to bail on the basis of clear and
Pua, Rochel April
convincing evidence. If Munoz is not entitled to
such, the trial court should order the cancellation of
his bail bond and his immediate detention; and
thereafter, conduct the extradition proceedings with
dispatch.
Munoz was charged before the Hong Kong Court
with three counts of the offense of accepting an
advantage as agent, in violation of sec. 9 (1) (a) of
the Prevention of Bribery Ordinance, Cap. 201 of
Hong Kong. He also faces seven counts of the
offense of conspiracy to defraud, penalized by the
common law of Hong Kong.
Citing the various international treaties giving
recognition and protection to human rights, the
Court saw the need to reexamine its ruling in
Government of United States of America v. Judge
Purganan which limited the exercise of the right to
bail to criminal proceedings.
It said that while our extradition law does not
provide for the grant of bail to an extraditee, there is
no provision prohibiting him or her from filing a
motion for bail, a right under the Constitution.
The time-honored principle of pacta sunt
servanda demands that the Philippines honor its
obligations under the Extradition Treaty.However,
it does not necessarily mean that in keeping with its
treaty obligations, the Philippines should diminish a
potential extraditees rights to life, liberty, and due
process. More so, where these rights are
guaranteed, not only by our Constitution, but also
by international conventions, to which the
Philippines is a party. We should not, therefore,
deprive an extraditee of his right to apply for bail,
provided that a certain standard for the grant is
satisfactorily met, the Court said.
RP, being a signatory to the 1996 UN General
Assembly which adopted the International Covenant
on Civil and Political Rights, is under obligation to
make available to every person under detention
such remedies which safeguard their fundamental
right to liberty, said the Court. The RP and Hong
Kong signed in 1995 an extradition treaty which
became effective in 1997.
The Court noted that Munoz had been detained
from September 23, 1999 to December 20, 2001,
or for over two years without having been convicted
of any crime.
If bail can be granted in deportation cases, we
see no justification why it should not also be
allowed in extradition cases. Likewise, considering
that the Universal Declaration of Human Rights
applies to deportation cases, there is no reason why
it cannot be invoked in extradition cases. After all,
both are administrative proceeding where the
innocence or guilt of the person detained is not in
issue, the Court said.
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 It further said that even if a potential extradite is
a criminal, an extradition proceeding is not by its
nature criminal, for it is not punishment for a crime,
even though such punishment may follow
extradition. It added that extradition is not a trial to
determine the guilt or innocence of potential
extraditee. Nor is it a full-blown civil action, but one
that is merely administrative in character. By Jay B.
Rempillo (SC website)
SETTLEMENT OF INTERNATIONAL
DISPUTES
International Dispute
A dispute exists when one state claims that another
state should behave in a certain manner and that claim is
rejected by the latter. (Kelsen, 367)
Is an actual disagreement between states regarding
the conduct to be taken by one of them for the protection
or vindication of the interests of the other.
PACIFIC or AMICABLE METHODS OF SETTLING
DISPUTES
1. Negotiation
o is generally the first step taken in the
settlement of international disputes. It is
nothing more than the discussion by the
parties themselves of their respective
claims and counterclaims with a view to
their just and orderly adjustment.
o the process by which States settle their
differences through an exchange of views
between diplomatic agencies
2. Enquiry
o the act by which the facts material to the
dispute are ascertained, established and
clarified by an impartial fact finding body
towards the adjustment or resolution of a
dispute.
3. T ender of Good Offices
o are a method by which a third party
attempts to bring the disputing states
together in order that they may be able to
discuss the issues in contention.
o This is usually employed when the
protagonists are no longer on speaking
terms, that is, when they have severed
diplomatic relations or have actually
commenced hostilities.
4. Mediation
Pua, Rochel April
o a third party does not merely provide the
opportunity for the antagonists to
negotiate but also actively participates in
their discussions in order to reconcile their
conflicting claims.
o Offers a solution; good offices merely
brings parties together
5. Conciliation
o active participation of a third party, whose
services are solicited by the disputants, in
the effort to settle the conflict; but the
conciliators recommendations are not
binding.
6. Arbitration
o the solution of a dispute by an impartial
third party usually a tribunal created by
the parties themselves under a charter
known as a compromis
7. Judicial Settlement
o Similar to arbitration in the nature of the
proceedings and in the binding character
of the award
o Judicial body is pre-existing
o Jurisdiction in judicial settlement is usually
compulsory, and the law applied by the
judicial tribunal is independent of the will
of the parties.
o Judicial settlement of the international
disputes is now lodged in the ICJ
(International Court of Justice)
8. Resort to International (regional)
Organizations
o the parties may, of their own volition, or at
the instance of the organization itself,
assume the obligation of settling the
dispute.
HOSTILE METHODS
Where the pacific methods of settlement have
failed, states sometimes find it necessary to resort to
hostile methods, which may be severance of
diplomatic relations, retorsion, reprisal or
intervention.
1. Severance of Diplomatic Relations
2. Retorsion
o retaliation where acts complained of do
not constitute legal ground of offense
but are rather in the nature of unfriendly
acts done in pursuance of a legitimate
Page
 state interest but indirectly hurtful to
other states.
o unfriendly, but lawful, coercive acts
done in retaliation for unfair treatment
and acts of discrimination of another
state.
e.g. the levy of high discriminatory
tariffs
on goods coming from the other
state.
3. Reprisal
o unlawful acts taken by one state in
retaliation for reciprocal unlawful acts of
another state
o purpose: to bring the offending state to
terms
o these acts are essentially forcible and
are taken only by strong states with
sufficient power to back up their
demands.
FORM OF REPRISALS:
1. Freezing of the assets of the nationals of the
other state
2. Embargo
o the forcible detention or sequestration of
the vessels and other property of the
offending state
3. Pacific Blockade
o the prevention of entry to or exit from the
ports of the offending state of means of
communication and transportation
Note: this could be violative of the UN
Charter
4. Non-Intercourse
o suspension of all intercourse with the
offending state, particularly in matters of
trade and commerce
5. Boycott
o concerted suspension of commercial
relations with the offending state, with
particular reference to a refusal to
purchase goods.
Drago Doctrine
In 1902, Great Britain, Italy and Germany
established a blockade against Venezuela in order to
enforce certain contractual and other claims against
Pua, Rochel April
it, leading Foreign Minister Drago of Argentina to
formulate the doctrine that a public debt cannot
give rise to the right of intervention.
This principle was later adopted in the Second
Hague Conference, but subject to the qualification
that the debtor state should not refuse or neglect to
reply to an offer of arbitration, or, after accepting the
offer, prevent any compromis from being agreed
upon, or, after the arbitration, fail to submit to the
award. This qualification is known as the Porter
resolution.
WAR
The Law of War
Armed contention between public forcer of states or
other belligerent communities implying employment of
force between parties for the purpose of imposing their
respective demands upon each other.
The Philippine renounces war as an instrument of
national policy. (Art. 2 par. 2 of the 1987 Constitution )
SANCTIONS OF THE LAWS OF WAR
The commonly accepted sanctions of the laws of war are
the following:
1. Protest lodged by one belligerent, usually
accompanied or followed by an appeal to world
opinion, against the unlawful acts of war
committed by the other belligerent.
2. Reparation for damages caused by the defeated
belligerent.
3. Punishment of war criminals.
Reprisals are often mentioned as a fourth
sanction, but it is doubtful if they can be
justified under the United Nations Charter
as they are essentially unlawful acts taken
by one state for the also illegal acts of the
other belligerent.
COMMENCEMENT OF WAR:
1. with the declaration of war (Hague Convention of
1907)
2. with the rejection of an ultimatum (Hague
Convention)
3. with the commission of an act of force regarded
by one of the belligerents as an act of war.
TERMINATION OF WAR:
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 1. Simple cessation of utilites
o Usually, the principle of uti possidetis , with
respect to property and territory
possessed by the belligerents, is applied.
2. Conclusion of a negotiated treaty of peace
3. Unilateral declaration by the victor
o Defeat of one of the belligerents followed
by a dictated treaty of peace, or
annexation of conquered territory
o
Jus Postliminy
Right of Postliminium is the right by which
persons or things taken by the enemy are restored to the
former state on coming actually into the power of the
nation to which they belong.
Jus Postliminiumalso signifies the reinstatement
of the authority of the displaced government once control
of the enemy is lost over the territory affected. Thus upon
the end of a belligerent occupation, the laws of the re-
established government are revived and all the illegal acts
of the belligerent occupant, as well as its lawful acts of a
political character, are invalidated.
Postliminium is the revival or reversion to the old
laws and sovereignty of territory which has been under
belligerent occupation once the belligerent occupation
once control of the belligerent occupant is lost over the
territory affected.
sequestered, subject to return or reimbursement
after the war in accordance with the treaty of
peace.
Combatants
Those who engage directly or indirectly in the
hostilities
COMBATANTS MAY BE:
1. Non-privileged
o Like spies who, under false pretenses try to
obtain vital information from the enemy
ranks and who, when caught, are not
considered prisoners of war.
2. Non-combatants
o Those who do not, such as women and
children
3. Prisoners of War
o any person captured or interned by a
belligerent power during war. In the
strictest sense it is applied only to
members of regularly organized armed
forces, but by broader definition it has also
included guerrillas, civilians who take up
arms against an enemy openly, or
noncombatants associated with a military
force.

Uti Possidetis
Allows retention of property or territory in the
belligerents actual possession at the time of the NEUTRALITY
cessation of hostilities.
Neutrality
EFFECTS OF THE OUTBREAK OF WAR Is the condition of a state that does not take part,
directly or indirectly, in a war between other states.
1. The laws of peace cease to regulate the relations
of the belligerents and are superseded by the If recognized by the belligerents, this condition gives
laws of war; rise to rights and obligations between them and the
neutral state in their mutual relations.
2. Diplomatic and consular relations between the
belligerents are terminated, and their respective Neutralization
representatives are allowed to return to their Is the result of a treaty wherein the conditions of the
own countries; status are agreed upon by the neutralized state and the
3. Treaties of political nature, such as treaties of other signatories.
alliance, are automatically cancelled, but those
which are precisely intended to operate during NEUTRALITY NEUTRALIZATION
war, such as one regulating the conduct of Dependent on attitude Results of treaty
hostilities, are activated. of neutral state, which wherein duration and
is free to join either of other conditions are
4. Enemy public property found in the territory of belligerents any time it agreed upon by
other belligerent at the outbreak of the hostilities sees fit neutralized state and
is, with certain exceptions, subject to other states
confiscation. Enemy private property may be Governed by laws of Governed by

Pua, Rochel April Page

nations neutralization by 1. Breach of Blockade
agreement
Obtains only during war Intended to operate in o A vessel found guilty of a breach of
times of peace and war blockade is liable to condemnation.
Only states may become May apply to portions of
neutral the territory of the state
e.g. islands, rivers & The cargo may also be confiscated unless
canals it is shown that at the time it was shipped
the owner neither knew nor could have
known of the intention to violate blockade.
DUTIES OF A NEUTRAL STATE
Blockade
is a hostile operation by which the vessels
1. Abstention and aircraft of one belligerent prevent all other
vessels, including those of neutral states, from
o To abstain from taking part in the entering or leaving the ports or coasts of the
hostilities and from giving assistance to other belligerent, the purpose being to shut off
either belligerent the place from international commerce and
communication with other states.

2. Prevention 2. Carriage of Contrabands

o To prevent its territory from being used by

the belligerents in the conduct of Contraband
hostilities; is the term applied to goods which, although
neutral property, may be seized by a belligerent
because they are useful for war and are bound
for a hostile destination
3. Acquiescence
KINDS OF CONTRABANDS:

o To acquiesce in certain restrictions and

limitations that the belligerents may find
necessary to impose, especially in 1. Absolute Contraband
connection with international commerce
necessarily useful for war under
all circumstances, like rifles and
Right of Angary ammunition.
Belligerent may upon payment of just compensation,
seize, use or destroy, in case of urgent necessity for
purposes of offense or defense neutral property found in
its territory, in enemy territory or on high seas 2. Conditional Contraband

Right of Visitation has both civilian and military

This is the right of belligerent vessels and aircraft to uses, like food and clothing
intercept and inspect neutral merchant vessels on the
high seas for the purpose of determining if they are in any
way connected with the hostilities. Free List
e.g. carrying contraband, attempting to breach a Which includes good useful for war
blockade, or engaged in unneutral service, in and bound for the enemy but exempted
favor of the other belligerent from confiscation for humanitarian
reasons. Among these are medicines for
PROHIBITED ACT S OF NEUTRAL ST ATES the use of the sick and wounded.

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Doctrine of Ultimate Consumption
Goods intended for civilian use which may ultimately
find their way to and be consumed by belligerent forces
may be seized on the way.
Doctrine of Ultimate Destination
This is the doctrine evolved to counteract the
subterfuge described above, and embodied in Article 37
of the ungratified Declaration of London of 1909.
Even if a vessel does make a stop at an intermediate
neutral port, it is nevertheless considered under this
doctrine to be in one continuous voyage beginning from
the port of origin to the hostile destination and liable to
capture during any part of this voyage.
3. Performance of unneutral service
Unneutral Service
consists of acts, of a more hostile character
than carriage of contraband or breach of
blockade, which are undertaken by merchand
vessels of a neutral state in aid of either of the
belligerents
Prize
Refers to a thing captured at seas in time of war, such
as a neutral merchant vessel taken by a belligerent
warship for engaging in hostile activities or resisting visit
and search, or because of reasonable suspicion that it is
liable to confiscation.
Prize Court
It is a tribunal established by a belligerent under its
own laws, in its territory or in the territory of any of its
allies, for the purpose of determining the validity of
maritime captures.
TERMINATION OF NEUTRALITY
1. When the state joins the war
2. Conclusion of a Treaty of Peace
International Criminal Court (ICC)
First permanent treaty based, international criminal
court established to promote the rule of law and ensure
that the gravest international crimes do not go
unpunished. (Art 1 Rome Statute)
Is an independent, permanent court that tries
persons accused of the most serious crimes of
international concern, namely genocide, crimes against
Pua, Rochel April
humanity and war crimes. The ICC is based on a treaty,
joined by 104 countries.
The court is not part of the UN, but it maintains a
cooperative relationship with the UN. The court is based
in The Hague, The Netherlands, although it may also sit
elsewhere
The ICC is a court of last resort. It will not act if a case
is investigated or prosecuted by a national judicial system
unless the national proceedings are not genuine
In all of its activities, the ICC observes the highest
standards of fairness and due process. The jurisdiction
and functioning of the ICC are governed by the Rome
Statute
Rome Statute
Established the International Criminal Court. The
Philippines is not yet a party to the Statues.
It was adopted at a diplomatic conference in Rome
on 17 July 1998 and it entered into force on 1 July 2002.
As of October 2009, 111 states are party to the statute,
and a further 38 states have signed but not ratified the
treaty. Among other things, the statute establishes the
court's functions, jurisdiction and structure
Philippine Mission to the UN through Charge d
Affairs Enrique Manalo, signed the Rome Statue on
December 28, 2000, the same was however not signed by
the President and submitted to the Senate for ratification.
Without ratification, the Philippines cannot be a party to
the statute. In fact Art 125(2) of the statue provides that it
is subject to ratification, acceptance or approval by
signatory states. (Pimentel v. Office of the Executive
Secretary, Gr. No. 158088, July 6, 2005)
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