Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
Nature and Sources of International Law
Is international law true law?
• Law may be said to be the instructions from God.
• Law is a reasonable rule of action promulgated by competent
authority for the common good.
• The concept of law as a command emanating from a sovereign t is
narrow and does not give adequate explanation of law in modern
State.
• The popular view is that international law is not real law since it is
commonly disregarded by States unless obeying it would suit their
interest.
• However it cannot be denied that international law is constantly
recognized as a law.
• States consider it morally and legally binding.
What is competent authority?
• Superior State whose commands have to be performed by so-
called sovereign States.
• If law is to be construed as a superior will imposed on superior
beings.
• Law only in so far as it is premised on the natural moral law, and is
not law insofar as its basis is the common consent of equal states.
• Refers to equal States, which observe expressly or implicitly
common standards of conduct in their mutual relations, then PIL
is a true law.
CASE: Prometheus Case
• Norwegian ship, Prometheus, was chartered by Osaka Shoshen
Kaisha in HK. There is a special stipulation not to carry any
contraband of war in their contract.
• Russo-Japanese war broke out. Japan refused to load rice.
• Russia then issued a declaration respecting the contraband of
war.
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• Dispute arose between the owners of the ship and OSK.
Validity of Russian declaration
• The Russian declaration including provisions among the list
articles absolutely contraband and as departing from the
recognized customs of nations had NO binding effect upon other
nations and could not excuse the non performance of the
obligation.
• A law maybe established and become international, that is to say
binding upon all nations, by agreement of such nations to be
bound thereby.
• Resistance to obey the law only makes the resisting nation a
breaker of the law to which it has given its adherence
Definition of International Law
 International Law
o Generally understood to cover only public international
law.
o The favored expression before was “law of nations” (jus
gentium).
o Later, Jeremy Bentham in 1789 coined the expression
“international law”.
 Public International Law
o The body of rules and principles which are recognized as
legally binding and which govern the relations of states
and other entities with international legal personality.
o Chinese definition: “It is the aggregate of various
principles norms and institutions adjusting the relations
of struggle and cooperation among States, reflecting the
adjusted will of the ruling class of various States and
enacted thru the agreements among States and to be
maintained by the individual or collective effort of the
States.”
o Russian definition: “The aggregate of norms which are
established by the agreement of States, including those
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
with different social orders; express the wills of these
States; regulate their struggle and collaboration on the
basis, and in the interest, of the effective maintenance of
peace and peaceful coexistence; and enforced when
necessary, by collection or individual State action.”
o Wilson – It is the body of generally accepted principles
governing relations among States.
o Lawrence – It may be defined as the rules which
determine the conduct of the general body of the
civilized States in their mutual dealings.
o Hackworth – It consists of a body of rules, evolving for
the most part out of our experience and necessity which
governs the relations among States.
o McDougal – It is not a pre- existing body of rules, but a
comprehensive process of authoritative decision in which
rules are continuously made and remade.
o Abba Eban – It is the law which the wicked do not obey
and which the righteous do not enforce.
 International legal system may be said to consist of:
o Natural moral law principles.
o Generally agreed-upon norms of conduct.
o Certain authoritative processes for enacting and
changing these norms.
 Classification of Public International Law:
o According to the manner in which common consent of
the States has been given (binding effect):
 Conventional International Law
 Customary International Law
 General International Law
o According to the applicability of subject matter:
 The International Law of Peace;
 The International Law of War;
 The International Law of Neutrality.
o According to content of subject matter:
 International Constitutional Law;
 International Administrative Law:
 International Corporation Law;
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 International Criminal Law;
 International Torts and Damages;
 International Commercial Law;
 International Financial Law;
 International Maritime Law.
CASE: West Rand Central Gold Mining Company, Limited v. The King, 2
K.B. 391 [1905]
FACTS: Two parcels of gold belonging to the petitioner (West Rand Co.)
were allegedly seized by officials of the South African Republic. Great
Britain thereafter conquered and occupied the Republic. It was argued by
the petitioner that all contractual obligations incurred by a conquered
State, before was actually breaks out, pass upon annexation to the
conqueror. Petitioner contended that: By International Law, the Sovereign
of a conquering State is liable for the obligations of the conquered;
International law forms part of the law of England; Rights and obligations,
which were binding upon the conquered State must be protected and can
be enforced by the municipal courts of the conquered State, must be
protected and can be enforced by the municipal courts of the conquering
State.
International Law Defined: whatever has received the common consent of
civilized nations must have received the assent of our country, and that to
which we have assented along with other nations.
And International law will be acknowledged and applied by our municipal
tribunals when legitimate occasion arises for those tribunals to decide
questions to which doctrines of international law may be relevant.
International law sought to be applied must be proved by satisfactory
evidence, which must show either that the particular proposition put
forward has been recognized and acted upon by our own country, or that
it has been so widely and generally accepted, that it can hardly be
supposed that any civilized State would repudiate it.
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012

(Lord Russell of Killowen in his address at Saratoga in 1896):It is the sum of o Municipal law is considered intra-state in nature. It
the rules or usages which civilized States have agreed shall be binding regulates and governs the relationship between the
upon them in their dealings with one another. individuals and the State.
o Also known as State Law.
HELD: There is no principle of international law by which, after annexation o There are two schools of thought regarding Municipal
of conquered territory, the conquering State becomes liable, in the law these are the dualist and the monoist theories.
absence of express stipulation to the contrary, to discharge financial  According to Dualists, International law and
liabilities of the conquered State incurred before the outbreak of war. Municipal law cannot exist in the same realm for
the following reasons:
Public International Law vs. Other Disciplines  Sources of International Law include Customs
and treaties between States/Countries. While
those of Municipal law are customs, precedents
 Public Int’l Law vs. Private Int’l Law
and enactments of a State’s lawmaking body.
o Public international law (ius gentium) is law regulating
 Monoists on the other hand, deny that the
the relations between states and states and private
scope of both International and Municipal law
persons. This is also called supranational law.
are different. They adhere to the idea that it is
o Private international law (or the conflict of laws) may be
ultimately the individual persons who are
defined as the rules voluntarily chosen by a given state
regulated by both laws.
for the decision of cases which have a ‘foreign’ element
 In addition, it is argued by the Monoists that far
or complexion. Nowadays much is ruled by conventions
from being different, both International and
but still there are those ruled by common law.
Municipal law must be regarded as parts of the
o Public Int’l Law rules are more international in nature, as
same juristic conception.
oppose to that of Private Int’l Law that characterizes its
o It is also the same doctrine that espouses the idea that it
rules as Municipal/National in Character.
is International law which determines and the
o An exemption to this however is when, the latter is
jurisdictional limits of the personal and territorial
embodied in a treaty or convention, thus giving it an
competencies of the State.
international application.
o As such, two other schools of thought were brought
o In disputes or conflicts that stem from Public
about by the Monoists in adopting International law and
International Law issues, the recourse is to submit such
Municipal law; these are the Incorporation and
conflict to international standards or modes of
Transformation doctrines.
resolution.
 Transformation Doctrine vs. Doctrine of Incorporation
o In Private International Laws, the recourse taken is
o The Transformation doctrine states that before
generally to municipal tribunals.
International Law can be enforceable within a State,
o Public international law is concerned solely with rules
there needs to be legislative action granting such.
concerning the rights and obligation of the States’ (i.e.
o The Incorporation doctrine on the other hand promotes
countries) interest. Whereas, private law focuses more
the idea that International Laws and Treaties form part of
on issues affecting private individuals, or corporations.
 Public International Law vs. Municipal Law

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Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
the Law of the land. Consequently the Philippines is one
of the countries that follow this doctrine.
CASE: The Nuremberg Judgment, 41 A.J.I.L. 172 (1947)
FACTS: One of the defenses raised by the war criminals in Germany was
that they themselves as mere individuals were not directly liable for their
acts; that they were merely carrying out the orders of Hitler; and that
individuals have no international duties. They also raised that there can be
no punishment of crime without a pre-existing law, that ex post facto
punishment is abhorrent to the law of all civilized nations, that no
sovereign power had made aggressive war a crime at the time the alleged
criminal acts were committed, that no statute had defined aggressive war,
that no penalty had been fixed for its commission, and no court had been
created to try and punish offenders.
HELD: International law punishes not only States but also individuals. This
rule has long been recognized. Crimes against international law are
committed by men, not by abstract entities, and only by punishing
individuals who commit such crimes can the provisions of international law
be enforced. The provisions of Article 228 of the Treaty of Versailles
illustrate and enforce this view of individual responsibility.
The Charter of the War Crimes Tribunal specifically provides in its Article 8
that “the fact that the defendant acted pursuant to an order of his
Government or of a superior shall not free him from responsibility, but
may be considered in mitigation of punishment.” The true test is not the
existence of the alleged orders, but whether or not moral choice was, in
fact, possible.
The very essence of the Charter of the Tribunal is that individuals have
international duties which transcend the national obligations of evidence
imposed by the individual State. He who violates the laws of war cannot
obtain immunity while acting in pursuance of State authority that moves
outside its competence in international law.
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The maxim nullem crimen sine lege, nulla poena sine lege has no
application to the present facts. Occupying the positions they did in the
government of Germany, the defendants, or at least some of them must
have known of the treaties signed by Germany, outlawing recourse to war
for the settlement of international disputes; they must have known that
they were acting in defiance of all international law when in complete
deliberation they carried out their designs of invasion and aggression.
The General Treaty for the Renunciation of War of August 27, 1928 (Pact of
Paris) was binding on 63 nations, including Germany at the outbreak of war
in 1939. The nations who signed the pact or adhered to it unconditionally
condemned recourse to war for the future as an instrument of policy, and
expressly renounce it. After its signing, any nation resorting to war as an
instrument of national policy necessarily involves the proposition that such
a war is illegal in international law. Those who plan and wage such a war
are committing a crime in so doing.
In interpreting the words of the Pact, it must be remembered that
international law is not the product of an international legislature, and that
such international agreements as the Pact of Paris have to deal with
general principles of law, and not with administrative matters of
procedure. The law of war is to be found not only in treaties, but in the
customs and practices of states which gradually obtained universal
recognition, and from the general principles of justice applied by jurists
and practiced by military courts.
Legal Force and Effect of International Law
 Is International Law a true law?
o The Skeptics says NO because there is/are….
 absence of sanctions for its observance and
enforcement
 lack of formal legal process of dispute
settlement as compared to domestic legal
system
 disregard from States unless obeying it would
suit their interest
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
 no specific institution that can effectively
enforce it
o Views arguing the legal force of International Law
 NATURALISTS- law of nations is binding upon
States because it is a branch of the great law of
nature—the sum of those principles ought to
control human conduct.
 POSITIVISTS- the basis of obligation in
international law is to be founded in the consent
of the States
 GROATIANS/ECLECTICS- Agrees with naturalists
principle but argues that States are accountable
only to their own conscience for the observance
of the duties imposed by the natural law, unless
they had agreed to bound those duties as part
of positive law.
o Existence of a Competent Authority
 Competent Authority should refer to  equal
states which observe expressly or implicitly
common standards of conduct in their mutual
relations as shown by the fact that:
i. This is discussed by methods
appropriate to jurisprudence
ii. States in pursuing/ arguing their foreign
policies both on international and
municipal tribunals appeal to
precedents, treaties and opinions of
specialists
iii. There are judicial sanctions forced by
international and municipal tribunals
e.g. diplomatic protests, mediation,
actions by universal/regional agencies
like UN Security Council
iv. There has been international
legislations enacted in various times in
history like: United Nations
Organization, the Hague Conferences
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o Non Legal Forces
 Self-interest
 Expediency
CASE: The Paquet Habana Case
Facts: Setting is during the Spanish-American War. Two fishing vessels that
were fishing out of Havana, Cuba, sailed under a Spanish flag were fishing
off the Cuba coast. They were owned a Spanish subject that was born in
Cuba and living in Havana. The vessels were commanded by a subject of
Spain, also residing in Havana. Their cargo consisted of fresh fish, caught by
their crew. The fish were kept alive to be sold alive. Until stopped by the
blockading squadron they had no knowledge of the existence of the war or
of any blockade. She had no arms or ammunition on board, and made no
attempt to run the blockade after she knew of its existence, nor any
resistance at the time of the capture.
Issue: Whether a court may look to established rules of other nations when
their own nation lacks any treaty, legislation, proclamation, or instruction
that is on point for a particular matter?
Held: YES. A court may look to established rules of other nations when
their own nation lacks any treaty, legislation, proclamation, or instruction
that is on point for a particular matter.
Where there is no treaty and no controlling executive or legislative act or
judicial decision, resort must be had to the customs and usages of civilized
nations, and, as evidence of these, to the works of jurists and
commentators who by years of labor, research, and experience have made
themselves peculiarly well acquainted with the subjects of which they
treat.
DISCUSSION
 Paquet Habana case stated that
o international law is part of our law, for what it says
about consulting the works of scholars and the evolving
nature of international law, and
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
o It suggests that customary international law might be
superseded as a rule of decision by a controlling
executive act
 “International law is part of our law, and must
be ascertained and administered by the courts of
justice of appropriate jurisdiction as often as
questions of right depending upon it are duly
presented for their determination.”
 International Law can therefore be
i. Part of domestic law
ii. A judicial notice for courts
Functions of International Law
 Three vital questions concerning the role of PIL in the world:\
o Is it essential
 Yes, without it States would clash with one
another in the pursuit of their own sovereign
rights.
 Its absence will mark the beginning of chaos.
 It defines or delimits the respective spheres
within which each is entitled to exercise its
authority.
o Has it been successful
 There must be a distinction.
 In some affairs it has been successful but in
others it miserably failed.
 Cynics define international law as nothing but
force and the rule of might over weakness.
 However, it cannot be denied that it has
accomplished many things.
 Accomplishments:
i. Community of sovereign still exists
ii. Prevented war
iii. International trade continue to flourish
 a. international conventions, whether
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o If success has not been overwhelmingly evident, what is
the remedy for international problems
 Remedy for international problems
o We must distinguish.
o For the present- peaceful co-existence between the
democratic and communistic ways of life would seem to
be the solution.
o In the future- A world state with a world government.
 Theories on how world state and world government may be
formed
o Draft the constitution of the World.
o Strengthening the basic social tissues for such world
community.
o Peaceful means must be first availed of to attain world
unity. In case of failure, wear and conquest can unify the
world.
 Social tissues
o Economic- greater economic interdependence
accompanied by a lessening disparity in the economic
strength of various nations.
o Psychological- fear of a common foe can act as a cement
of cohesion.
o Moral- enlighten men in all nations have some sense of
obligation to their fellowmen.
Sources Of Public International Law
 Sources Applied by the International Court of Justice
o “Art 38 of the Statute of the International Court of
Justice enumerates the various rules applicable to the
solution of international disputes submitted to the
court.”
 The Court, whose function is to decide in
accordance with international law such disputes
as are submitted to it, shall apply:
general or particular, establishing rules
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
expressly recognized by the contesting
states;
b. international custom, as evidence of
a general practice accepted as law;
c. the general principles of law
recognized by civilized nations
d. subject to the provisions of Article
59, judicial decisions and the teachings
of the most highly qualified publicists
of the various nations, as subsidiary
means for the determination of rules of
law.
 ex aequo et bono
 Basis for a decision by an international
tribunal on the grounds of justice and
fairness.
 Art 38 cites ex aequo et bono as an
alternative means of decision making.
 Consent of both parties is necessary
before a case can be decided ex aequo
et bono.
 DIRECT SOURCES
o International Conventions – bipartite treaties as such
having binding force, and are considered law only insofar
as the parties are concerned (ex: US-Singapore Tax
Treaty)
o International customs – (ex: cabotage, angary, maritime
zone)
 Customs v. Practice: Practice suggest formative
process, customs suggests that the process has
been completed.Practice may be said to be the
cause or evidence of the act of creation while
custom is the effect or result.
 Essential Elements for Customary International
Law
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1. Prevailing practice by a number of
States in the field of international
relations
2. Repetition of the practice over a
considerable period of time
3. Conception that the practice is required
by, or consistent with, prevailing
international law.
4. General acquiescence in the practice by
other States.
o The general principles of law – (ex: res judicata, pacta
sunt servanda)
 CASE: Leovillo Agustin v. Hon. Romeo Edu
Facts: President Marcos issued Letter of Instruction no.
229 which requires all motor vehicles to have an EWD to
eliminate one of the major causes of accidents. The 1968
Vienna Convention on Road Signs and Signals
recommended the enactment of local legislation for the
installation of road safety signs and devices.
IS this VALID? Valid and in the exercise of police power.
The Vienna Convention is generally accepted principle of
international law which is part of the law of the land. The
concept of pacta sunt servanda stands in the way of such
an attitude, which is, moreover, at war with the principle
of international morality.
 INDIRECT, SECONDARY, OR SUBSIDIARY SOURCE
o Decision of International Tribunals – If various tribunals
throughout the world decide similar cases in a more or
less uniform manner, there is good ground to believe
that there exists an “international custom” on the
matter.
o Writings and teachings of the most highly qualified
publicists – Insofar as these writers refer to PIL as it really
is, and not how it ought to be, their writings may be said
to be secondary sources of the subject.
 SOURCES FROM OTHER VIEWPOINTS
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
o Hans Kelsen: PIL has its source principally in the decision
of an international tribunal;
* Ultimate source is international custom which gives rise
to pacta sunt servanda (treaties must be complied with
in good faith), which justifies the existence of
international conventions;
*The treaties then make possible the formation of
international courts, the purpose of which is to lay down
decisions on the matter.
*Decision rendered constitute the “sources”
o Oppenheim: “ Customs and treaties are two exclusive
sources of the law of nations. When writers enurate
other source besides customs and treaties, they
confound the term ‘source’ with that of ‘cause’ by calling
sources of international law such factors as influence the
gradual growth of new rules of international law,
without, however, bearing the historical facts out of
which these rules, receive their legal force.
 Important factors of this kind are:
o Opinions of famous writers on international law
o Decisions of prize courts
o Arbitral awards
o Instructions issued by the different States for the
guidance of their diplomatic and other organs
o State papers concerning foreign politics
o Certain municipal laws
o Decisions of municipal courts
 International Comity
o Is NOT a source. However, it influences its growth.
o Oppenheim: “the comity of nations is certainly not a
source of international law, as it is distinctly the contrast
to the law of nations. But there can be no doubt that
many a rule which formerly was a rule of international
comity only is nowadays a rule of international law.
Enforcement and Sanctions
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 Is international law even a law?
o Lack of centralized system of courts and police capable of
ordering and imposing sanctions as a critical flaw
o Some nations do not comply with international law, but
it does not mean that it isn’t law. This is also the case
even in municipal law.
o Understanding why states comply with international law
is an important undertaking
o It will help explain why some international rule appear to
works while others do not
 Why do States comply? General compliance due to:
o the fact that states have generally consented to it.
 i.e. Before going into a treaty, the party states
have studied it and they are invested to the
success of the treaty. If not they can always
withdraw pursuant to the sunset provisions of
most treaties.
o Effect of reputational consequences
 Desire to be a good-standing member of the
global society
 i.e. NGOs and smaller states are proactive in the
mobilization of shame
o Fear of reciprocity
 Before deviating from an international
obligation, a state should be concerned not only
of its own action, but the possible counter-
action of other states
 i.e. State A might want to prosecute State B’s
ambassador for alleged spying, but they should
also worry about their ambassador also being
charged with the same, whether real or
imaginary. The same applies for the imposition
of quotas to the exports of state b in violation of
an existing treaty.
 Obviously, fear of reciprocity does not exist in all
situations
 Cases of more powerful states
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
 Human rights cases
o “Compliance Pull” theory
 Professor Thomas Franck (NYU): “legitimacy” of
the rule exerts a “compliance pull” on states;
the stronger the legitimacy, the stronger the
compliance pull
o Compliance due to National Processes
 International law merges into a national
obligation (i.e. Chicago Convention’s standards
and recommended practices [SARPs], adopted
by U.S. congress in a statute requiring FAA to
comply with the obligations of the United States
as reflected in International Agreements)
o Suffering the coercive mechanisms that can possibly be
employed by other states or the international community
 Techniques for Identifying Non-compliance
o Reporting/Monitoring-when states are required to
submit periodic reports to other member states in
multilateral treaties or to the other state in cases of
bilateral treaties.
i.e. Convention against torture Article 19 require
contracting states to submit every 4 years a
report to a convention committee
o Independent verification-if state are not satisfied in
simply allowing each state to report on whether it is in
compliance, they may turn to techniques for
independent verification
i.e. International Atomic Energy Agency’s
Inspection powers (experts are regularly sent to
check on compliance)
European Civil Aviation Conference has
inspection procedures for foreign aircraft in
each state
 Non-forcible and Forcible Coercion of States
o When a state fails top comply, other states may or may
not be in the position to coerce the other state into
compliance.
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o Much depends on the diplomatic, economic, and military
power of the non-compliant state vis-a-vis other states
and the political will of either side.
o i.e. US violations of human rights in Guantanamo v.
Burmese Military junta’s human rights violations
 Coercive Mechanisms Against States
1. Diplomatic Sanctions-states are not obligated to engage
in diplomatic relations with other states. Consequently,
the downgrading or terminating of diplomatic relations
with other state as a sign of displeasure with its conduct
is always an available option.
i.e. U.S. has refuse to engage in diplomatic
relations with Cuba for more than 40 years
Another is the Philippines’ downgrading of its
diplomatic relations with Singapore during FVR’s time in
light of Flor Contemplation incident
 International Organizations can also impose
diplomatic sanctions as provided for in its
Charter
 U.N charter provides that a state can be
suspended from the rights and privileges if the
UNSC takes enforcement action against the
state.
 Member can lose voting rights in the UN
General Assembly if it is in arrears in the
payment of its dues (used against Haiti in 1963
and Dominican Republic in 1968)
 U.N. Charter also provides that a member who
consistently violate the U.N. Charter may suffer
the possibility of expulsion
 Rarely invoked as there seem to be a general
understanding that in crisis situations, it is best
to have more communication, not less, between
the recalcitrant state and the organization
2. Economic Sanctions-maybe unilateral or collective
(multilateral).
Different forms:
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
Freezing or blocking of assets of the target state
Prohibition of financial transaction by persons
with the target state
Trade embargoes
Suspension or termination of foreign assistance
Other economic restrictions
i.e.: 1999 resolution of UNSC against Taliban requiring
states to deny permission for any Taliban aircraft to take
off or land in their territories and the 2000 UNSC
Comprehensive Arms Embargo against the Taliban, the
Cuban Embargo
DOES IT WORK: This is a big debate. There are different
cases when it has been effective and when it wasn’t
Apartheid: they say it was effective
Cuban Embargo: ineffective
Taliban sanctions, ineffective (as seen in the
2001 attacks)
Libya: effective as seen when UNSC imposed
sanctions and Libya was forces to surrender the
two Libyan nationals accused of bombing Pan
Am Flight 103 whom it refused to surrender
prior to the imposition of the sanction
3. Military Enforcement-as a matter of policy, states do not
usually resort to the use of military measures to coerce
compliance with international law in consideration of the
human and economic costs. International law also
discourages the use of force. The Use of force is only
permitted in two circumstances:
When a state is acting on self-defense
When authorized by the Security Council under Chapter
VII of the U.N. Charter
 Coercive Mechanisms Against Persons
o Multilateral Economic Sanctions
o Unilateral Economic Sanctions
o Civil and Criminal Actions to Enforce an International
Norm
o Civil Actions to Enforce Private Transactions
10 | P a g e
 Some Examples of military Enforcement
o NATO invasion of Yugoslavia in 1999 (both seen as
anticipatory self-defense by European States but also to
enforce FRY’s obligations under human rights law not to
harm Kosovar Albanians).
 Whether NATO’s acts were in compliance with
International Law is still controversial, but this is
an example nonetheless
o UNSC’s resolution which authorized states to reverse
Iraq’s 1990 Invasion of Kuwait; the 1991 resolution
authorizing military intervention to reverse the 1991
coup in Haiti; the too-little-too-late resolution of 2003
authorizing France to intervene in Rwanda to prevent
genocide.
CASE: Asaali v Commissioner of Customs
FACTS: On September 10, 1950 a customs patrol intercepted five sailing
vessels in question on the high seas. After ordering the vessels to stop, the
custom officers boarded and found on board their cargoes which were not
covered by the required import license. The five sailing vessels are all of
Philippine registry and came to Saudaku British North Borneo.
ISSUE: Whether or not the interception and seizure by custom officials on
the high seas is valid on the contention that the seizure was effected
outside our territorial waters.
HELD: YES. A state has the right to protect itself and its revenues, a right
not limited to its own territory but extending to the high seas. The Revised
Penal Code leaves no doubt as to its application and enforceability not only
within the Philippines, its interior waters and maritime zone but also
outside of its jurisdiction while on Philippine ship.
CASE: People v Lol-lo and Saraw
FACTS: On or about 30 June 1920: Two boats left Matuta, a Dutch
possession, for Peta, another Dutch possession. Boat 1 had one Dutch
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
subject. Boat 2 had 11 men, women and children, likewise from Holland.
After several days, at 7pm, Boat 2 arrived in Buang and Bukid in the Dutch
East Indies. Here, the boat was surrounded by 6 vintas, manned by 24
armed Moros. The Moros first asked for food, but once in the boat, took all
the cargo, attacked some of the men, and brutally violated 2 of the
women. The Moros took the 2 women with them, placed holes in the ship
to let it sink, and left the people there. After 11 days, the Moros arrived at
Maruro, a Dutch possession. The two Moro marauders were identified as
Lol-lo, as the one who raped one of the women, and Saraw. While in
Maruro, the two women were able to escape. One day, Lol-lo and Saraw
went home to South Ubian, Tawi-Tawi, Sulu. Here, they were arrested and
charged with piracy at the CFI. The Moros interposed a demurrer, saying
that the charge was not within the jurisdiction of the CFI, nor of any court
in the Philippines. They were saying that the facts did not constitute a
public offense under Philippine laws. The demurrer was overruled, and Lol-
lo and Saraw were found guilty, and were both sentenced to life
imprisonment, together with Kinawalang and Maulanis, two other
defendants in another case. In addition to imprisonment, they were
ordered to return the 39 sacks of copra they robbed, or to indemnify the
offended parties 924 rupees, and to pay one-half of the costs.
ISSUE: Did the CFI in the Philippines have jurisdiction over Lol-lo and
Saraw?
HELD: YES. First of all, the facts can’t be disputed. All the elements of the
crime of piracy were there. Piracy is robbery or forcible depredation on the
high seas, without lawful authority and done animo furandi, and in the
spirit and intention of universal hostility. The CFI has jurisdiction because
pirates are in law hostes humani generis. Piracy is a crime against all
mankind, therefore, it can be punished in any competent tribunal of any
country where the offender may be found. The jurisdiction of piracy has no
territorial limits. The crime is against all mankind, so it is also punished by
all. It doesn’t matter that the crime was committed within the
jurisdictional 3-mile limit of a foreign state. Those limits, though neutral to
war, are not neutral to crimes.
CASE: The Lotus
11 | P a g e
FACTS: A French ship (the S.S. Lotus), collided with a Turkish ship in
international waters, killing some Turkish sailors. The French ship then
docked in Turkey. Turkey attempted to try the French officer in charge of
the Lotus for negligence. They found him guilty and sentenced him to 80
days in jail. France went to the Permanent Court of International Justice
(P.C.I.J.) and argued that Turkey did not have jurisdiction to try the French
officers, because they were on a French boat in international waters at the
time of the accident. Turkey argued that since their nationals were killed,
they had jurisdiction to try those responsible for the deaths. France argued
that as a matter of customary international law, the flag of the vessel (in
this case France) has exclusive jurisdiction.
ISSUE: Did Turkey have the right to try the French sailors?
HELD: YES. The PCIJ basically found that since the two ships were involved
in the same accident, that both countries had concurrent jurisdiction over
the accident. The PCIJ found that customary international law gave France
jurisdiction, but it didn't give them exclusive jurisdiction. "Under
international law, everything that isn't prohibited is permitted." This case
led to the Lotus Principle (aka the Lotus Approach), which says that
sovereign states may act in any way they wish so long as they do not
contravene an explicit prohibition.
The Lotus Principle was later overruled by the 1958 High Seas Convention.
Article 11(1) says that only the flag State or the State of which the alleged
offender was a national has jurisdiction over sailors regarding incidents
occurring in high seas.
_____________________________________________________________
The History and Development of International Law
A. The Period of Antiquity
1. Introduction – the roots of International Law goes far back into
history; it was meant to regulate the mutual relations amongst
political communities.
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
2. Treaties of peace and alliances were concluded in antiquity
between Jews and the Romans, Syrians, and Spartans.
a. One of the oldest known treaties, a treaty concluded in the
very dawn of recorded history, about 3100 B.C., between the
rulers of two Mesopotamian communities (Lagash and
Umma) provided for the settlement of a boundary dispute.
b. Another is that between Ramses II and the Hitite king,
Hattusilis III, concluded in 1269 B.C.
c. Most of these were peace treaties, e.g. –
i. Treaty of Kadesh (1274 B.C.) between the Ancient
Egyptians made after the Battle of Kadesh.
ii. The Peace of Callias (449 B.C.) between the Delian
League (led by Athens) and Persia, thus ending the
Persian Wars.
d. But some treaties had harsh binding terms.
i. During Rome’s early period of expansion, she
gradually spread her dominion over the Italian
peninsula by making treaties with all the states she
conquered. All the states were required to provide
soldiers and give up some land to Rome.
3. Ancient political communities developed certain usages in their
mutual intercourse; treaty-making and treaty-breaking; the
pursuit of commerce; and the rules of war, e.g.
a. The Jews were brutal and ruthless in the battlefield.
b. In contrast, the Hindus, under the Indian Code of Manu,
urged humanness in the conduct of war (the use of poisoned
weapons was prohibited).
4. In ancient Greek city-states –
a. The Customs of the Hellenes was developed based on natural
law and the principles of interstate agreements.
b. Resident aliens (particularly the “Metokoi”) were accorded
not only hospitality but also full civil protection. They had a
“proxenus” or consul to represent their interests.
c. Diplomatic immunities were recognized.
d. Even the right of sanctuary or asylum came to be presumed.
5. In ancient Rome –
12 | P a g e
a. “Jus gentium” or law of nations was applied, which Gaius, in
nd
the 2 century saw as a law “common to all men,” a universal
law that could be applied by Roman courts to foreigners
when the specific law of their own nations was unknown and
when Roman law was inapposite.
b. The “Preator Peregrinus” settled legal disputes where aliens
were involved.
c. The College of Fetials negotiated treaties and decided
questions of war.
B. The Medieval Period
1. The Growth Gap Period
a. Conditions prevailing were not very suitable to the
development of International Law
i. Medieval Europe was not divided into States, as it is
in the modern sense.
b. Factors which stunted the growth of International Law –
i. Growth of a strong centralized government, capable
of enforcing its control at all times over all parts of
its dominion: difficulties of communication, sparsity
of population; and primitive economic conditions.
ii. Other factors incompatible with the existence of
International Law:
(1) The Pope vs. The Holy Roman Emperor –
the fight for supremacy in governmental
authority over the subjects of the state, and
(2) Feudalism – the dispersal of powers among
the different classes of society, which in
modern times are normally concentrated in
the State.
2. Although this period stunted its growth, it nonetheless gave birth
to two sets of rules:
a. Lex Mercatoria
i. From the Latin for “merchant law”
th
ii. With the revival of trade in the 10 century,
merchants started to travel throughout Europe in
order to sell, buy, and place orders for various
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
goods. These commercial activities required the
establishment of a common legal framework.
iii. Out of necessity the European merchants created
the lex mercatoria, their own rules of conduct and
fair dealing.
iv. The cases were decided by merchants sitting as
judges who relied on business practices, usage of
trades, legal principle of Canon Law such as “pacta
sunt servanda,” and the principle of good faith.
b. Maritime Law
i. The high seas were no-man’s island, but with the
development of maritime commerce, it became
necessary to establish some rules and standards.
ii. The rules of the sea were based on the Rhodian Sea
Law, Rolls of Oleron, English Black Book of Admiralty,
Maritime Code of Visby, and Consolato del Mare
which was composed in Barcelona.
C. The Modern Period
th th
1. 16 -17 Century to the Peace of Westphalia in 1648 (ended the
Thirty Years’ War) –
a. Treaty of Westphalia – principle of territorial integrity;
national interests and goals of states (and later nation-states)
were widely assumed to go beyond those of any citizen or
any ruler. States became the primary institutional agents in
an interstate system of relations; it involved the Holy Roman
Emperor, Ferdinand III, of the House of Habsburg, the
Kingdoms of Spain, France, Sweden, the Dutch Republic,
the Princes of the Holy Roman Empire, and sovereigns of
the free imperial cities.
i. Principles – Sovereignty of states and the
fundamental right of political self determination;
legal equality between states; and non-intervention
of one state in the internal affairs of another.
ii. Effects:
(1) Internal political boundaries were established.
The power taken by Ferdinand III in
13 | P a g e
contravention of the Holy Roman Empire’s
constitution was stripped and returned to the
rulers of the Imperial States. This rectification
allowed the rulers of the Imperial States to
independently decide their religious worship.
Protestants and Catholics were redefined as
equal before the law, and Calvinism was given
legal recognition.
(2) General recognition of the exclusive sovereignty
of each party over its lands, people, and agents
abroad, and each and several responsibility for
the warlike acts of any of its citizens or agents.
(3) Barriers to trade and commerce erected during
the war were abolished.
(4) All parties recognized the Peace of Augsburg of
1555, in which each prince has the right to
determine the religion of his own state, the
options being Catholicism, Lutheranism, and
Calvinism
 Succeeded because of an economic policy
of protection and directed public credit –
dirigism – aimed to create sovereign nation-
states, and designed by France’s Cardinal
Jules Mazarin and his great protégé Jean-
Baptiste Colbert. Colbert’s dirigist policy
of fair trade was the most effective weapon
against the liberal free trade policy of the
central banking maritime powers of the
British and Dutch oligarchies.
 Principle of forgiving the sins of the past,
and of mutually beneficial economic
development.
 Mazarin’s and Colbert’s common-good
principle of the advantage of the other
triumphed over the imperial designs of both
France’s Louis XIV himself, and the
Venetian-controlled Hapsburg Empire.
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
b. Prominent People
i. Roman Catholic Theologians, Francisco de Vitoria
and Francisco Suarez
 Distinquished between jus inter gentes and jus
intra gentes, as derived from jus gentium.
ii. Hugo Grotius
 Nations should be governed by moral principles,
and that the community of states ought to be
regulated by treaties and agreements between
nations.
 Believed that the natural law came from an
essential universal reason, common to all men.
 Importance of actual practices, customs and
treaties – what “is” done – as opposed to
normative rules of what “ought to be” done.
 As a result, nations became the predominant
form of state in Europe, and their man-made
laws became more important than religious
doctrines and philosophies.
iii. Cardinal Jules Mazarin and Jean-Baptiste Colbert
 Dirigist policy of fair trade vs. the liberal free
trade policy of the central banking maritime
powers.
th th
2. 18 -19 Century –
a. Treaties and International Conferences:
i. Convention of Paris (1856) – guidance of
states on warfare at sea.
ii. Geneva Convention (1864) – for the
betterment of the sick and wounded in the
warfare
iii. Delivery of the first important arbitral
award in the “Alabama” dispute between
Britain and the United States in 1872
iv. Hague Conference of 1899 – limitations of
armaments.
b. Major Contributions
14 | P a g e
i. Expansion of diplomacy and war on the one
hand, trade, technology and European
notions of “civilization” on the other.
ii. instrument of diplomacy and an academic
discipline
iii. Concept of Nationalism—consolidation of
European State-system
iv. the view of history as “progress” and the
association of “progress” with the becoming
universal of the European State form
c. Prominent People
i. Francis Lieber
 Had come to the United States in 1827
as a refugee after having participated in
revolutionary activities across Europe.
By 1870, he had become the initiator of
the professional organisation of
international lawyers and his work the
“Lieber Code,” for the use of the Union
armies in the US Civil War inspired the
adoption of humanitarian laws of
warfare around the world.
 Wanted peace and stability and fitted those
objectives together in an account of individual
rights and the gradual civilization that would in
due course extent to non-European peoples
owing to what they hoped would be the
increasingly enlightened policies of the powers
themselves.
ii. Auguste Comte
th
3. 20 Century –
a. League of Nations
i. Established after the First World War, attempted to
curb invasions by enacting a treaty agreement
providing for economic and military sanctions
against member states that used “external
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
aggression” to invade or conquer other member
states.
ii. Established under the Treaty of Versailles “to
promote international cooperation and to achieve
peace and security.”
iii. In spite of the League’s early successes, it did not
manage to prevent the invasion of Manchuria by
Japan, nor the annexation of Ethiopia by Italy in
1936, nor that of Austria by Hitler in 1938. Its
powerlessness to prevent further world conflict, the
alienation of part of its member states and the
generation of the Second World War, caused its
demise.
b. United Nations
i. It officially came into existence on 24 October 1945,
after the Second World War, when the UN Charter
had been ratified by a majority of the original 51
Member States.
ii. It is committed to maintaining international peace
and security, developing friendly relations among
nations and promoting social progress, better living
standards and human rights.
iii. Similar in many ways to the League of Nations, as it
sought to continue the latter’s operations already in
place.
____________________________________________________________
Subjects of International Law
A. DEFINITION OF A SUBJECT
Subject International Law—
1) According to Salonga:
Subject International Law is an entity that has international personality
15 | P a g e
a. It has an international personality if it has rights and duties under
international law.
b. Implies that such entity can directly enforce its rights and may be
held directly accountable for its obligations under international
law.
 The prevailing view at present is that states are not the only
subjects of international law.
 States are undoubtedly the principal & most important
subjects of international law.
 But, there are also various entities that although lacking in
the essential elements of statehood have rights and duties as
well under the international law. Examples are International
Organizations created by States and Private Individuals.
2) According to Paras (1985):
A Subject of Public International Law is an entity directly
possessed of rights and obligations in the international legal order;
those to which the international order accord PERSONALITY and are
therefore directly endowed with rights and obligations.
Example:
A Sovereign State such as the Philippines is a Subject.
a. For instance, our government is endowed with certain rights
which the laws of nations cannot ignore; to enforce said rights the
Philippines may even sue in the international court of justice; by
the same token official actuations by the Philippines Republic may
result in its being sued in an international tribunal.
An Object of Public international Law on the other hand is merely
indirectly vested with rights and obligations in the international
sphere.
Example:
A Filipino private citizen is generally regarded not as a subject but as
an object
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012

b. While he is entitled to certain rights which other states ought to common racial, ethnic ties.
respect, he usually has no recourse except to course his
grievances through the Republic & his diplomatic officers. 4 essential attributes or element of a State

Kinds of Subjects: A. People

B. Territory
1. The complete or Perfect International Personality (States) C. Government
2. The incomplete or imperfect or qualified or quasi-international D. Independence
personality. (Dependent states, belligerent communities, colonies etc.)
Additional requisites (Rivier & Hyde)
3) According to Cruz: Not
A subject of international law is an entity that has rights and considered
1. Recognition
responsibilities under that law. 2. Possession of a certain degree of civilization essential
It has an international personality in that it can directly assert
rights and be held directly responsible under the law of nations. It
can be proper party to transactions involving the application of
law of nations among members of the international community.
 Absence of one essential element causes extinction
An object on the other hand is the person or thing in respect of
which rights are held and obligations assumed by the subject. It’s 1. People
not directly governed by the rules of international law, rather, its
rights are received and its responsibilities imposed indirectly  Aggregate of individuals of both sexes who live together as a
through instrumentality of an intermediate agency. community despite racial or cultural differences.
 Should be sufficient in number
B. STATES
2. Territory
States – a group of people, living together in a fixed territory, organized for
political ends under an independent Governmtn, and capable of entering  In practice there must be a fixed territory consisting of a portion of the
into international relations with the rest of the world. earth’s surface which the inhabitants occupy
o Essential to determine the area over which the State
Difference between State and Nation exercises jurisdiction
 Changes in the area of the State due to annexation or forced cession
State Nation doesn’t affect its international personality
A legal concept Non-legal o Merger with other States with other territories may result in
the creation of a new State
Exists when a group of people are
aware of, and feel bound by
3. Government

16 | P a g e
Public International Law Notes
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 Must have an organized government exercising control over, and b) Composite States: when two or more sovereign States are
endeavoring to maintain justice within, the territory joined together so as to constitie one International Person.
o Reason: There must be an entity that can be held 1. Real Unions: exists when 2 sovereign states are
internationally responsible for the acts of the inhabitants of linked together under the same head, resulting in
the territory. the merger of their separate international
personalities.
4. Independence 2. Personal Unions: when 2 sovereign states are linked
together through the accidental fact that they have
 The State should be free from outside control in the conduct of its the same individuals as monarch.
foreign affairs 3. Federal States – a perpetual union of several
o Sovereignty - freedom from outside control in the conduct of sovereign States, which has organs of its own and is
internal and external affairs invested with power over the member-States and
o Independence - is merely the external aspect or their citizens.
manifestation of sovereignty  The resulting union is a State having full
 Not a concept that is absolute and unconfined. It is not therefore international personality
correct to say that an independent State has a right to determine its  It may be more accurate to say that
conduct, without any restraint at all. member-States of a Federal State may or
may not be International Persons,
Classes of States depending on the agreement between the
member-States and on their constitutional
structure.
1. Independent
4. Confederation – exists when a number of full
2. Dependent
sovereign States are linked together by treaty for the
3. Neutralized
purpose of achieving certain specific objects, the
resulting Union possessing a certain power over the
1. Independent member-States, though not over the citizens of
these States, and the member-States retaining a
 One that possesses freedom to direct and control its foreign relations certain degree of their individual
without restraint from other States
 An independent State is a perfect international person, and therefore international personality
a full subject of intenational law.
 In the long run they collapse due to the
Kinds unsatisfactory allocation of powers over
external affairs.
a) Simple state: one that has a single central government,
exercising control over the internal and external affairs 2. Dependent States – A State subject to the authority of one or more
other States in the conduct of its external affairs.

17 | P a g e
Public International Law Notes
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 Formerly known as semi-sovereign states
 It may either be in the nature of suzerainty or protectorate
a. Suzerainty – where as in feudal system there is
vassal
b. Protectorate – when a weak State surrenders itself
by treaty into the protection of a strong State such
as in a way that it transfers the management of all its
more important international affairs to the
protecting State.
i. Compared to suzerainty, always retains, for
some purposes, a position of its own within
the international community and is always
considered to a certain degree an
international person and a subject of
international law.
3. Neutralized States – A State whose independence and integrity are
guaranteed by an international convention on the condition that such
State obligates itself never to take up arms against any other State,
except for self defense, or enter into such international obligations a would
indirectly involve in war.
 A State seeks neutralization where it is weak and does not
wish to take an active participation in international politics.
 Distinction between Neutrality and Neutralization:
Neutrality Neutralization
Obtains only during war Is a condition in times of
peace and war
Status created by means of Status created under
treaty international law, by the stand
of the State not to side with
any party at war
Brought about by a Cannot be effected by
unilateral declaration by the unilateral act, but must be
neutral State recognized by other States
C. MANDATES AND TRUST TERRITORIES
18 | P a g e
I. Mandate
a. Former territorial possessions of the States defeated in
WWI.
b. The Mandate System was established at the end of WWI
whereby the former “territories” of the defeated powers
were placed under the “tutelage” of some members of
the League of Nations as mandatories on behalf of the
League.
c. Placed under the League of Nations
d. Called Mandatories
e. Created to afford a chance for them to be developed
economically and socially by more advanced Nations.
II. Countries under the Mandate System- 15 countries
i. Became independent states after WWII
1. Those in the Middle East such as Syria,
Iraq, and Saudi Arabia
ii. Transferred to the Trusteeship System
1. Countries from the Pacific and Africa
(except South West Africa)
III. Trust Territories
a. The term “mandate” was changed to “trust territories”
nd
after the 2 World War
b. Under the supervision of the UN, the Trusteeship
Council, and the Administering Authorities.
c. Basic objectives of trusteeship:
i. To further international peace and security
ii. Promote the political, economic, social, and
educational advancement of the inhabitants of
the trust territories, and their progressive
development towards self-government or
independence.
iii. Encourage respect for human rights and for
fundamental freedoms for all without
distinctions as to race, sex, language, or religion,
and to encourage recognition of the
interdependence of the peoples of the world.
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
iv. Ensure equal treatment in social, economic, and
commercial matters.
d. Qualified or quasi-international personality in the sense
that it has some rights and obligations in the
international order
i. However, the Administering Authorities
exercises the power of sovereignty over them.
e. Can’t be ceded to others without the approval of the UN
inasmuch as they do not form part of the territory of the
Administering Authority.
f. Inhabitants of the trust territories do not become
nationals or citizens of the Administering Authorities
(though allegiance is required)
g. Sovereignty is vested in the people of the territory, but
exercised by the administering power within strict limits
of the Trusteeship Agreement.
h. Generally, it is not affected by treaties concluded by the
Administering Authorities.
i. Administering Authorities have the duty to ensure that
the trust territory shall play its part in the maintenance
of international peace and security.
j. Administering Authorities may make use of volunteer
forces, facilities and assistance from the trust territory in
carrying out the obligations towards the Security Council
undertaken in this regard by the Administering Authority,
as well as for local defense, and the maintenance of law
and order within the trust territory.
IV. To whom the trusteeship system applies:
a. Territories now held under a mandate
b. Territories which may be detached from enemy States as
a result of the WWII
c. Territories voluntarily placed under the system by States
responsible for their administration.
V. Countries under the trusteeship system
a. Territories voluntarily placed under the system by States
responsible for their administration.
i. New Guinea- placed by Austria
19 | P a g e
ii. Western Samoa- placed by New Zealand
iii. Tanganyika- placed by Great Britain
iv. The former Japanese Mandated Islands- placed
by the US
b. US Trust Territory of the Pacific Islands
i. The only one UN trust territory outside of
Namibia (South-West Africa)
ii. Composed of 2,141 islands and atolls, with
about 150,000 inhabitants on 100 of the islands,
the latter were later grouped in 4 districts,
namely:
1. Northern Mariana Islands
2. Marshall Islands
3. Micronesia
4. Palau
iii. 1986: US proclaimed that only Palau would
remain under the Trusteeship Agreement.
D. COLONIES AND DEPENDECIES
Colonies: A territory under immediate political control of another state.
(Wikipedia)
Traditional Point of View: Colonies and dependencies are part of the
territory of the state to which they belong, no matter how autonomous in
its conduct of international affairs.
* But there is nothing to preclude the international community from
considering a dependent territory as if it had some degree of international
personality.
Under the Charter of the United Nations, dependent territories which are
not “self governing” although they may not be placed under the
trusteeship system are nevertheless regarded to some extent wards of the
international community.
Holy See: The Head of the Roman Catholic Church.
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
Lateran Treaty: An agreement between the Holy See and Italy which made
Vatican City as a territory under the sovereignty of the Holy See. It was also
provided that Vatican City was in all circumstances to be considered a
neutral territory.
By virtue of this treaty, the Holy See is deemed to have resumed
membership in the society of States.
Where is stated hood vested?
There is debate on whether statedhood is vested on the Holy See or in the
Vatican City.
st
1 View: Lateran Treaty created two international persons – the Holy See
and the Vatican City.
nd
2 View: Lateran Treaty constituted Vatican City as the new state with the
incumbent of the Holy See as its head.
E. BELLIGERENTS
- Group of rebels under an organized civil government who have taken
up arms against the legitimate government.
- When recognized, it is considered as a separate state for purposes of
conflict and entitled to all the rights and subjected to all the
obligations of a full-pledged belligerent under the laws of war
The status of belligerency may arise if:
1.) If there exists within the State an armed conflict of a general character
2.) The rebels occupy a substantial portion of the national territory
3.) They conduct hostilities in accordance with the rules of war thru
organized groups acting under a responsible authority
- If the belligerency is recognized before the four conditions are
fulfilled, it is considered contrary to international law
20 | P a g e
- Revognized belligerent community lacks the right to send and receive
diplomatic agents to join international organizations and to benefit in
a normal manner from multilateral conventions concerned with
peacetime international relations and activities of states
- State of insurgency is not equivalent to state of belligerency, the latter
has not yet achieved the status of a belligerent community
Legal Implication of recognition:
- The granting of recognition of belligerency to rebels is only
provisional. While congerring an equal status to warring groups, it
does so only for the purposes and for the duration of the war.
F. INTERNATIONAL ORGANIZATIONS
INTERNATIONAL ORGANIZATIONS AS SUBJECTS OF INTERNATIONAL LAW
 International organizations are institutions constituted by
international agreement between two or more States to
accomplish common goals.
 The interdependence of nations brought about the emergence of
a great number of supra-national institutions for international
cooperation and collective action.
 Public international organizations include:
 global, all-purpose organizations
 specialized agencies of the United Nations
 other global functional organizations
 regional organizations
 Non-governmental organizations (NGOs) are not subjects of
international law, which include:
 the International Committee of the Red Cross (ICRC)
 consumer and producer associations
 religious groups
 teacher organizations
 professional, legal, civic and medical societies
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012

 trade unions NAFTA

ASEAN  North American Free Trade Agreement

 World’s largest trading bloc composed of the
 Brunei • United States
 Indonesia • Canada
 Malaysia • Mexico
 Philippines • This agreement will remove most barriers to trade and
 Singapore investment among the three.
 Thailand
 Vietnam EU
 Lao PDR
 Cambodia Giving way to a single European market between its 27 member states:
 Myanmar
• Austria
Principal objective
• Belgium
• Bulgaria
To obtain economic, educational, cultural, technological, and defense • Cyprus
cooperation in this region • Czech Republic
• Denmark
There are periodic summit conferences among the leaders. • Estonia
• Finland
This regional bloc established the ASEAN Free Trade Area (AFTA). • France
• Germany
AFTA • Greece
• Hungary
The ASEAN Free Trade Area (AFTA) is a regional free trade agreement • Ireland
• Italy
 Expected to conform to a strict interpretation of the qualifying • Latvia
conditions of the General Agreement on Tariffs and Trade (GATT) • Lithuania
 Primary goals: • Luxembourg
 Increase ASEAN’s competitive edge as a production base • Malta
in the world market through the elimination, within • Netherlands
ASEAN of tariffs and non-tariff barriers • Poland
 Attract more foreign direct investment to ASEAN • Portugal
• Romania

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Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
• Slovakia
• Slovenia
• Spain
• Sweden
• United Kingdom
 The EU has developed a single market through a standardized system
of laws which apply in all member states.
 Within the Schengen Area (which includes EU and non-EU states)
passport controls have been abolished.
 EU policies aim to ensure the free movement of people, goods,
services and capital.
 A monetary union, the eurozone, was established, composed of 17
member states.
 The three main blocks to economic integration:
 Physical barriers like customs port and immigration controls
 Technical barriers like national product standards
 Fiscal barriers like taxes
 Works to bring down the barriers:
 Having single currency and a unified monetary policy
 Differences between exchange rates are to be reduced
 Monetary policies are to be coordinated
The United Nations
 The United Nations and the specialized agencies have been widely
recognized to have a legal personality distinct from that of the States
which constitute their membership.
 The legal personality of these international organizations have been
recognized not only in municipal law, but also in international law.
 The United Nations is an international person that is a subject of
international law and capable of possessing international rights and
duties, and that it has capacity to maintain its rights by international
claims.
Historical Background
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 The League of Nations and a number of international organizations
dealing with economic and social problems of international concern
were established as a result of the First World War.
 The outbreak of the Second World War led to the demise of the
League of Nations and the establishment of the United Nations.
Formation of UN
 In November, 1943 in the Moscow Declaration, the Governments of
China, the Soviet Union, the United Kingdom of Great Britain and
Northern Ireland, and the United States of America pledged for the
establishment of an international organization and recognized the
necessity of establishing a general international organization, based on
the principle of the sovereign equality of all peace-loving States, and
open to membership by all such States, large and small, for the
maintenance of international peace and security.
 In February, 1945, President Roosevelt, Prime Minister Churchill and
Marshall Stalin agreed to call a conference to draw up the charter of
the organization.
 51 countries signed the Charter
 United Nations officially came into existence on October 24, 1945,
when the Charter had been ratified by a majority of the signatories,
including all the permanent members of the Security Council, i.e.
China, France, the Soviet Union, the United Kingdom and the United
States.
Purposes
 To maintain international peace and security;
 To develop friendly relations among nations;
 To cooperate in solving international economic, social, cultural and
humanitarian problems, and in promoting respect for human rights;
and
 To be a centre for harmonizing the actions of nations towards those
common goals.
Principles
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012

 All its members are equal and all are committed to fulfill in good faith Withdrawal
their obligations under the Charter;
 To settle their disputes with each other by peaceful means;  The Charter does not contain any provision with respect to
 To refrain from the threat or use of force in their international withdrawal.
relations;  Up to now, no Member has withdrawn its membership from the
 To give the United Nations every assistance in any action it takes in Organization.
accordance with the Charter; and
 To refrain from assisting any State against which the United Nations is Principal Organs
taking preventive or enforcement action.
 General Assembly
Membership  The Security Council
 The Economic and Social Council
 Open to all peace-loving States that accept and willing to carry out the  Trusteeship Council
obligations of the Charter  International Court of Justice
 Any country wishing to become a Member must submit an application  The Secretariat
to the Security Council, including a declaration that it accepts the
obligations set out in the Charter General Assembly
 As of July 2011, it had 193 Members
 Latest member – South Sudan
 All members of the United Nations are members of the General
 Philippines – member since 1945
Assembly
 Each has one vote, but is entitled to not more than five
Suspension representatives.
 Discusses any issue coming within the scope of the Charter or
 Suspension has to be recommended by the Security Council concerning any organs and may make recommendations to Member
 General Assembly approves by two-thirds of its members present and States or to the Security Council or to both.
voting  Also performs functions relating to organizational, administrative and
 Suspended from the exercise of the rights and privileges of fiscal matters, membership, amendment of the Charter, etc.
membership (suspension not from membership)  Meets in regular session once a year.
 Action by the Security Council alone is required when it comes to  Decisions on “important” questions (peace and security, membership,
restoration of the rights and privileges of a suspended member. elections, trusteeship system, budget) require two-thirds majority of
members present and voting.
Expulsion  Other questions are decided by simple majority.

 A Member may be expelled when it has persistently violated the The Security Council
principles contained in the Charter.

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Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
 Organ entrusted with the “primary” responsibility for the maintenance
of international peace and security.
 The Council acts on behalf of all the Members of the United Nations.
 The Security Council alone has the power to take decisions which all
Member States are obligated under the Charter to accept and carry
out.
 Has 15 members, five of which have permanent seats (China, France,
UK, Soviet Union, US)
 The other 10 non-permanent members are elected to two-year terms
by the General Assembly. They are not eligible for immediate
reelection upon expiration of their terms.
The Economic and Social Council
 Operates under the authority of the General Assembly
 Coordinates the economic and social work of the United Nations and
its specialized agencies
 The Council has 54 members. Each year, the General Assembly elects
18 members for a three-year term. Retiring members are eligible for
immediate reelection.
 Voting in the Council is by simple majority, each member has one
vote.
 Mainly central policy-making and coordinating body.
Trusteeship Council
 Operating under the authority of the General Assembly
 Responsible for the supervision of territories placed under the
International Trusteeship System which was set up to provide
international supervision for non-self-governing territories
administered by Member States.
 Size of the Council is not fixed. It must reflect a balance between
Members that administer Trust Territories and Members that do not.
International Court of Justice
 Principal judicial organ of the United Nations
24 | P a g e
 All Members of the United Nations are parties to the Statute of the
Court
 The Court has jurisdiction over all cases referred to it by parties over
all matters specifically provided for in the Charter and in various
treaties or conventions in force.
 The General Assembly or the Security Council may request the Court
for an advisory opinion on any legal question.
 Members of the Court are 15 independent Judges, of different
nationalities, elected by the General Assembly and the Security
Council from candidates nominated by government-appointed
national groups of highly reputed international law experts.
 To be elected, a candidate must obtain an absolute majority of votes,
both in the Assembly and the Security Council
 Judges are elected for terms of nine years and are eligible for
reelection. The terms of five of the 15 Judges expire at the end of
every year.
The Secretariat
 Chief administrative agency of the United Nations
 Secretary General – head of the Secretariat appointed by the General
Assembly, upon recommendation by the Security Council
 Term of 5 years, and may be reelected.
 The Secretary General has the right to bring to the attention of the
Security Council any matter which in his opinion may threaten
international peace and security.
Privileges and Immunities
 The Organization shall enjoy in the territory of its Members such
privileges and immunities as are necessary for the fulfillment of its
purposes.
 Representatives of the Member States and officials of the
Organization shall enjoy privileges and immunities necessary to
exercise of their United Nations functions.
 United Nations has its permanent home in New York City.
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012

UN Peace-keeping operations  International Atomic Energy Agency (IAEA)

 General Agreement on Tariff and Trade (GATT)
 The Security Council may take provisional measures to prevent the
conflict from worsening, without prejudice to the rights, claims or G. INDVIDUALS
position of the parties concerned.
 Peace-keeping operations falls into two main categories: observer Individuals as subjects of international law
mission and peace-keeping forces.
 Fulfills the role of an impartial third party and help to create and Are individuals considered subjects of international law?
maintain a cease-fire and form a buffer zone between conflicting
States.
- Subject of searching analysis by international lawyers and scholars
 Prevents local or regional conflicts from escalating to much wider
o Classical view: States alone are the subjects of international
areas and forestalling the introduction of outside forces.
law, and that individuals can be no more than objects of it.
This is because:
Specialized Agencies  Only states are able to create international law
 It is primarily concerned with the rights and duties of
states
 Only states have full procedural capacity before
Covering such fields as international tribunals
o Theory of Monism: Individuals should be regarded as
 Labour relations (ILO) subjects, not merely objects of international law since it is to
 Food production (FAO) man that the norms of international law entrusts the
 Education, science and culture (UNESCO) responsibilities of law and order
 Health (WHO) o Modern view: Occupying the middle position maintains that
 The World Bank (which consists of 3 separate institutions – IBRD, IDA States are normally the subjects of international law,
and IFC) individuals have become in some degree subjects of that law
 Civil aviation (ICAO) - Substantive law: There exists norms conferring rights and duties upon
 Postal matters (UPU) individuals on the international plane by virtue of treaty laws or
 Telecommunications (ITU) customary laws of the nations
 Meteorology (WMO) - Procedural law: Individuals remain largely shut out. They have
 Shipping and related matters (IMO) remained- except to a limited extent- without power to take
 Intellectual property (WIPO) independent steps in his own name to enforce his rights. he remains
 Agricultural development (IFAD) dependent upon states to take up the cudgels for him in order to
 Industrial development (UNIDO) enforce his rights

Two other intergovernmental organizations, although not specialized Do they have access to international tribunals?
agencies, also submit reports to the United Nations

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Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
Since the turn of the century, some developments have taken
place showing, in a limited way, that access to international tribunals have
been given to individuals.
- The Hague Convention provided for international prize court to which
nationals of a neutral state might bring their claims against a foreign
state
- The Treaty of Washington established the Central American Court to
which a citizen of a State party might bring claims against State Party
- Various peace treaties at the end of WWI dealing with claims of
nationals of Allied Powers against those of the members of the Axis
Powers
- The advisory opinion of the Permanent International Court of Justice
dealt a direct blow to the dogma of impenetrable wall separating
individuals from international law. The case involved the right of
Danzig railway officials asserting directly before the Danzig courts their
claims for unpaid compensation against Poland and Danzig City. The
Court held that no consideration of theory could prevent individuals
from becoming subjects of international law where the Parties to a
treaty provided them direct access to the court for the purpose of
enforcing his claim
International Protection of Human Rights
The United Nations General Assembly adopted the Universal
Declaration of Human Rights proclaiming many basic rights and freedoms
to which every individual is entitled of.
- Although there is a debate as to the binding effect of the UDHR, its
legal value cannot be doubted. In fact, it has been cited as evidence of
customary international law. In the Philippines, the Supreme Court
invoked the UDHR in the case of Borowski v. Commissioner of
Immigration and Bureau of Prisons and declared illegal the prolonged
detention of an alien.
- Thus, to transform the fundamental rights into legally binding
obligations, the General Assembly adopted two covenants: one
26 | P a g e
covering civil and political rights, and the other economic, social and
cultural rights.
o Covenant on Economic, Social and Cultural Rights: The parties
are committed to take steps to the maximum of their
resources to achieve progressively the full realization of these
rights. The machinery for supervision of compliance with the
provisions consists of a reporting system.
o Covenant on Civil and Political Rights: This defined more
specifically and in greater detail the rights enunciated in the
UDHR. Some rights covered in the UDHR were not included
(e.g., right of asylum) but certain rights not covered are
included: self-determination, free disposition of natural
resources, right against self-incrimination, etc. Aside from a
reportorial system, it has a complaints procedure whereby a
party may complain of any non-compliance by another party
to the Human Rights Committee, if both parties have
recognized its competence.
o Special conventions on particular human rights:
- Convention on the Prevention and Punishment of Genocide- Parties
undertake to prosecute and punish all persons guilty of deliberate
destruction of an ethnic, racial or religious group, or of the incitement
or conspiracy to commit it. It shall be tried by a competent local
tribunal or by an international penal tribunal having jurisdiction.
- Convention Relating to the Status of Refugees
- International Convention on the Elimination of all forms of racial
Discrimination
- Convention on the Political Rights of Women
- International Convention on the Suppression and Punishment of the
Crime of Apartheid
- International Labor Organization has promoted more than 100
conventions since it came into existence
- UNESCO also had promoted agreements such as UNESCO Convention
against Discrimination in Education
War crimes and crimes against humanity
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
At Nuremberg and other war trials held after WWII, thousands of
individuals were tried and convicted for violations of international law by
international tribunals set up by the Allied Powers. The International
Military Tribunal was established by the United States, Soviet Union, Great
Britain and France to try persons charged with:
1. Crimes against peace- planning, initiation and preparation or
waging of a war of aggression
2. War crimes- violation of the laws and customs of war (murder, ill-
treatment of slave labor, prisoners of war or persons on the seas,
plunder of public and private places, wanton destruction of cities)
3. Crimes against humanity- murder, extermination, enslavement,
deportation and other inhuman acts
Regional Protection of Human Rights
The development of international legal machinery for the
protection of human rights demonstrated that individuals are endowed
with international legal personality and capable of asserting their rights
directly even against States of which they are nationals. The most
significant is the creation of enforcement machinery to which individuals
who claim to be victim of human rights violations are given access, some of
them are established on the regional level.
- European Human Rights Convention- signed and adopted by members
of the Council of Europe. The significance of it lies not with the
substantive rights it guaranteed to individuals (most of them are found
in the UDHR and other conventions), but for the legal machinery it
effectively established to enforce these rights. It has two organs: (a)
Commission of Human Rights- it first receives complaint form states or
from any individual, NGO, or group of individuals claiming to be
victims of a violation of these rights. It strives to achieve a friendly
settlement. Otherwise, it prepares a report stating its opinion as to
whether there was really a violation and refers it to the Court; (b)
European Court of Human Rights- for a legally binding decision, only
states parties have a right to bring cases. Although the individuals
cannot bring cases, they are usually the initiators of suits. And once
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the Commission or a State brings the case, individuals are allowed to
have their attorneys appear before the court to argue their cases.
- Inter-American Convention on Human Rights: signed and adopted by
the members of the Organization of American States, excluding the
United States. This convention was modelled after the European
Human Rights Convention and has a very similar machinery to enforce
the guaranteed rights. It consists of two organs: (a) Inter-American
Commission and the Inter-American Court of Human Rights, which
basically performs the same function as to its European counterpart.
CASES:
1. Reparation for Injuries Suffered in the Service of the United Nations
1949 I.C.J. 174; 43 A.J.I.L. 589 (1949)
Facts:
• 1948 September 17 (Friday), 9:30 a.m.:
• Count Folke Bernadotte, a UN peace mediator, flew to
Jerusalem.
• His day started with a shot hitting the armoured car in his
convoy.
• No one was hurt.
• Count Bernadotte continued on with his appointments for the
day.
• During the afternoon, he visited the Jerusalem Agricultural School.
• Bernadotte picked up French UN observer Andre Seraut at the
Jerusalem Agricultural School
• Seraut took the center seat in the UN car, immediately to
Bernadotte’s left.
• The three car convoy headed back to the YMCA.
• At 5:03 p.m., the convoy found its path blocked by a vehicle in
Palmeh Steet in the Jerusalem neighbourhood of Old Katamon.
• The vehicle was an Israeli military jeep
• it contained a driver and four members of the Jewish
underground organization LEHI (Fighters for the Freedom
of Israel).
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
• They had come to assassinate Count Bernadotte to
protest his diplomatic efforts to modify the Palestine
partition plan.
• The terrorists, wearing khaki shorts and peaked caps, left their
jeep.
• They found Bernadotte in the second car of the convoy.
• Yehoshua Cohen, one of the terrorists, fired a Schmeisser
automatic pistol into the car, spraying the interior with bullets and
killing Seraut and then Bernadotte.
• The other LEHI members shot the tires of the rest of the convoy
and all the terrorists escaped to the religious community of
Sha’arei Pina.
• 1948 December 3
• The United Nations General Assembly transmitted to the
International Court of Justice a request for an advisory
opinion
• The subject of the requested advisory opinion?
• Capacity of the U.N. to bring an international
claim against the responsible de jure or de facto
government for reparations in the event:
• An agent of the Organization suffers
injury
• In the performance of his duties
• In circumstances involving the
responsibility of the State
Issues:
• Does the Organization possess international personality?
• Whether the Organization has the capacity to bring an
international claim against non-member State of the
Organization?
Held:
1. Does the Organization possess international personality?
28 | P a g e
• Competence to bring an international claim is
• the capacity to resort to the customary methods
recognized by international law for the establishment,
the presentation and the settlement of claims
• Some customary methods are:
• Protest
• Request for an enquiry
• Negotiation
• Request for Submission to an Arbitral Tribunal or to the
Court
• States have international personality
• A State can bring an international claim against another
State
• Dealt with by means of negotiation and cannot be
submitted to a tribunal without their consent
• The United Nations has international personality
• Intended to exercise and enjoy, as it does, functions and
rights which can only be explained on the basis of the
possession of a large measure of international
personality and the capacity to operate upon an
international plane
• Its Members, by entrusting certain functions to it, with
the attendant duties and responsibilities, have clothed it
with the competence require to enable those functions
to be effectively discharged
• The United Nations is an international person
• It is a subject of international law
• It is capable of possessing international rights and duties
• It has capacity to maintain its rights by bringing
international claims
• It possesses a right of functional protection in respect of
its agents
2. Whether the Organization has the capacity to bring an international
claim against non-member State of the Organization?
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
• Fifty states, representing the vast majority of the members of the
international community, had the power, in conformity with
international law, to bring into being an entity possessing
objective international personality
• Not merely personality recognized by them alone
• The United Nations has the capacity to bring an international
claim against non-member States of the Organization
2. The Nuremberg Judgment
Facts:
• The Nuremberg Trials were a series of military tribunals, held by the
victorious Allied forces of World War II
• It is most notable for the prosecution of prominent members of the
political, military, and economic leadership of the defeated Nazi
Germany.
• The trials were held in the city of Nuremberg, Bavaria, Germany, in
1945–46, at the Palace of Justice
• Hence, the name Nuremberg Trials
Issue: Whether individuals are a proper subject of international law?
Held:
1. Whether individuals are a proper subject of international law?
Argument # 1
• International law is concerned with the actions of sovereign states,
and provides no punishment for individual
• Where the act in question is an act of state, those who carry it out are
not personally responsible, but are protected by the doctrine of the
sovereignty of the State
Ratio Decidendi # 1
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• International law imposes duties and liabilities upon states
• This has been long recognized
• Crimes against international law are committed by men, not by
abstract entities, and only by punishing individuals who commit such
crimes can the provisions of international law be enforced
• Article 228 of the Treaty of Versailles illustrate and enforce the view of
individual responsibility
• The principle of international law which protects the representatives
of a state cannot be applied to acts condemned as criminal by
international law
• Authors of these acts cannot shelter themselves behind their
official position in other to be freed from punishment
• Article 7 of the Charter:
• “The official position of defendants, whether heads of state,
or responsible officials in government, departments, shall not
be considered as freeing them from responsibility, or
mitigating punishment.”
• Essence of the Charter:
• Individuals have international duties which transcend the
national obligations of obedience imposed by the individual
state
• He who violates the laws of war cannot obtain immunity
while acting in pursuance of the authority of the state in
authorizing action movies outside its competence under
International Law
Argument # 2
• In doing what they did, they were acting under the orders of Hitler
• Therefore, they cannot be held responsible for the acts
committed by them in carrying out these orders
Ratio Decidendi # 2
• Article 8 of the Charter:
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
• “The fact that the defendant acted pursuant to order of his
Government or of a superior shall not free him from
responsibility, but may be considered in mitigation of
punishment.”
• This is in conformity with the law of all nations
• True Test: Not the existence of the order, but whether moral choice
was in fact possible
_____________________________________________________________
Recognition
A. DEFINITION
According to Abad Santos:
 Recognition in International Law, may be described as the
acknowledgment of the fact which had been previously uncertain.
 The acknowledgement may relate to the existence of a new state, a
new government or a belligerent community.
According to Paras:
 Some writers consider recognition as an additional condition which
must be satisfied before a state is deemed to exists in the eyes of
International Law.
 In short, Recognition is the act which gives to a political entity
international status as a state. Recognition therefore has a
"constitutive" effect, for it is only through recognition that a state
becomes an International Person Subject of International Law.
According to Salonga:
 Recognition is subdivided into Recognition of States, Recognition of
the Government and Recognition of Belligerency.
 Recognition of States are defined by two schools of thoughts:
30 | P a g e
 Consitutive
 Declaratory
Constitutive School
 Recognition is the act which gives to apolitical entity international
status as a State;
 It is only through recognition that a State becomes an International
Person and a subject of international law, thus, recognition is a legal
matter—not a matter of arbitrary will on the part of one State
whether to recognize or refuse to recognize another entity but that
where certain conditions of fact exist, an entity may demand, and
the State is under legal duty to accord recognition
Declaratory School
 Recognition merely an act that declares as a fact something that has
been uncertain;
 It simply manifests the recognizing State’s readiness to accept the
normal consequences of the fact of Statehood.
 It is a political act, i.e., it is entirely a matter of policy and discretion
to give or refuse recognition, and that no entity possesses the
power, as a matter of legal right, to demand recognition.
 Here, there is no legal right to demand recognition and such is
followed by most nations.
 Recognition of a State has now been substituted to a large extent by
the act of admission to the United Nations.
 It is the “assurance given to a new State that it will be permitted to
hold its place and rank in the character of an independent political
organism in the society of nations”
B. KINDS OF RECOGNITION AND LEGAL EFFECTS
Kinds of Recognition
As to object Recognition may be accorded a, State, a
Government, or a belligerent community
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012

As to plenitude May either be de jure or de facto 1. Conclusion of a bilateral treaty

As to form Express or implied 2. The formal initiation of diplomatic relations
As to States It may be individual or collective 3. The issuance of diplomatic exequatur
participating  In case of belligerency, proclamation of
neutrality would imply recognition
 Acts falling short of recognition of a new State or government
Distinction between Recognition of State and Government 1. Holding of unofficial communication with a country
struggling for independence and claiming to have
Recognition of a State Recognition of a Government won it
 Carries with it, without further  Amounts to accepting the 2. Sending or reception if non-diplomatic agents
formality the recognition of the government as possessed of 3. Dealings with revolutionary leaders in actual control
Govt. in control of the State the authority to represent the of territory within which foreign persons and
 Once recognition is accorded it State it purports to govern property are located
is usually irrevocable  Not perpetual 4. Participation in an international conference in which
 May either be:  Breaking up of diplomatic the other entity takes part
o De jure – whenever a relations not withdrawal of 5. Conclusion of multilateral treaty to which the entity
State is not prepared recognition of a government is a party
to recognize definitely o Only means refusal to 6. Retention for an interim period of diplomatic
an entity claiming to deal with the representatives, retention and replacing of consuls
be a State of the government 7. Request for grant and extradition
government, but has  Non-recognition of a  Recognition is said to be individual is accorded by one State
some sort of official government goes further that  Collective recognition if accorded by a group of States.
relations with it the government in question has
o De facto – is no authority to represent the
provisional, a sort of State. C. RECOGNITION OF STATES
modus Vivendi, and
does not carry with it I. Two States recognizing each other means that both recognize
the full effects of the capacity of each other to exercise all the rights belonging
recognition de jure to Statehood.
 Whether government or State may be express or implied and II. Recognition: the act of acknowledging the capacity of an
conditional or unconditional entity to exercise rights belonging to statehood.
o Expressly – by treaty provision, a formal note or a formal III. Views in recognition
public announcement a. Declaratory Theory
o Tacit/Implied – may come about as a result of any act which i. Recognition is merely “declaratory” of the
implies the intention of recognizing a new State or existence of the State and that it being a state
government depends upon its possession of the required
o The only legitimate occasions for implying recognition: elements and not upon recognition.

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Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
ii. That a recognizing state merely accepts an
already existing situation.
iii. Recognition is the assurance given to a new
State that it will be permitted to hold its place
and rank in the character of an independent
political organism in the society of nations.
iv. Recognition is a political act, that is, that it is
entirely a matter of policy and discretion to give
or refuse recognition, and that no entity
possesses the power, as a matter of legal right,
to demand recognition.
v. USA and a good many States in the world
adhere to this view. For indeed, recognition has
been used as a political instrument to express
approval or disapproval of existing situations.
vi. Weight of authority favors this view (Bernas)
b. Constitutive Theory
i. Recognition constitutes a state, that is, it is what
makes a state and confers legal personality on
the entity.
ii. Some writer consider recognition as an
additional condition which must be satisfied
before a State is deemed to exist in the eyes of
international law. (Paras)
iii. Recognition of the state is a legal act, that is that
it is not a matter of arbitrary will on the part of
one State whether to recognize or refuse to
recognize another entity but that where certain
conditions of fact exist, an entity may demand,
and the State is under legal duty to accord
recognition.
IV. Recognition today:
i. Recognition of a State, while very important in
the past, has now been substituted to a large
extent by the act of admission to the UN.
1. Such Admission means that all
members of the UN must treat the new
32 | P a g e
member as an equal partner in all
matters relating to the application of
the UN charter, and to this extent,
being admitted to membership in the
UN, means that the newcomer is at
least partially recognized.
a. All states are, of course, free
to decide whether to proceed
to full recognition or to limit
their relations with the new
member to the minimum.
ii. The UN may deny recognition to a new State or
entity claiming to be a State.
1. Examples:
a. Transkei: Sham desgned to
consolidate apartheid and
perpetuate the domination of
the white minority. UN urged
all member-States to deny
recognition
b. Southern Rhodesia: UN
Security Council condemned
the usurpation of power and
declaration of independence
of Southern Rhodesia by a
white racist minority and
called upon all States not to
recognized the new State.
D. RECOGNITION OF GOVERNMENTS
Requirements:
1. Government must be effective and stable
It must be in possession of the machinery of the state and without
substantial resistance to its authority.
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
2. The Government must be effective must show willingness and ability to
discharge international obligations.
*There used to be a third requirement but it has already been rendered
obsolete due to some changes in the international order.
3. Government should enjoy popular consent or approval of the people or
the Tobar & Wilson Doctrine but because of the widespread emergence of
governments that deviate from democratic traditions, it would seem that
the apparent acquiescence of people would suffice which is absorbed by
the first requirement.
Estrada Doctrine: When a new government is established in another
country by revolutionary means, Mexico would continue diplomatic
relations with the new government regardless of its legitimacy.
Recognition De Facto & De Jure
De Facto: When in the view of the recognizing state, the new government,
although actually independent and wielding effective power in the
territory under its control has not acquired sufficient stability or does not
yet offer prospect of complying with the above mentioned requirements of
recognition.
De Jure: When there is no specification as to the kind of recognition. It
amounts to the acknowledgement of the presence of the minimal
requirements of government.
Differences between De Factor and De Jure Recognition:
Difference # 1
 De Facto Recognition is provisional and limited to certain juridical
relations.
 De Jure is relatively permanent
33 | P a g e
Difference # 2
 Recognition De Facto does not bring about either full diplomatic
intercourse or conferment of diplomatic immunities.
 Recognition De Jure the bring about full diplomatic intercourse and
conferment of diplomatic immunities.
Difference # 3
 Recognition de facto does not give title to assets of the state held or
situated abroad
 Recognition de jure gives title to assets of the state held or situated
abroad.
De Facto and De Jure Governments
De Facto Government: One that is in possession of the powers of
sovereignty although the possession may be wrongful or precarious.
De Jure Government: A government that ought to possess the powers of
sovereignty though at the time it may be deprived of them.
E. RECOGNITION OF BELLIGERENCY AND INSURGENCY
- It is the formal acknowledgment by a third party of theexistence of a
state of war between the central government and a portion of that state.
- Belligerency exists when a sizeable portion of the territory of a state is
under the effectivecontrol of an insurgent community which is seeking to
establish a separate government
- the insurgents are in de facto control of a portion of the territory and
population, have a political organization, are able to maintain such control,
and conduct themselves according to the laws of war.
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
Example: Great Britain recognized a state of belligerency in the United
States during the Civil War
Conditions for Recognition of Belligerency:
1. There should be an organized civil government
2. Rebels occupy a substantial portion of the territory
3. Conflict is serious and outcome is uncertain
4. Rebels are willing to observe the laws of war
- Absence of one means the state is merely in the state of insurgency
Effects of Recognition of Belligerency:
1. Responsibility for acts of rebels resulting to injury to nationals of
recognizing state shall be shifted to the rebel government
2. The recognizing state shall observe laws or customs of war in
conducting hostilities
3. Third states recognizing belligerency should maintain neutrality
F. RECOGNITION OF INTERNATIONAL ORGANIZATIONS
Recognition
 Recognition of a State has been substituted to a large extent by
the act of admission to the United Nations.
 Such admission means that all members of the United Nations
must treat the new member as an equal parter in all matters
relating to the application of the UN Charter.
 To this extent, being admitted to membership in the United
Nations means that the newcomer is at least partially recognized.
 The United Nations may deny recognition to a new State or entity
claiming to be a State.
Examples:
34 | P a g e
1) The UN General Assembly refused to recognize the coming into
existence of the new State of Transkei. The grant of independence
to Transkei by South Africa was condemned as a “sham”
2) The UN Security Council condemned the usurpation of power and
declaration of independence of Southern Rhodesia by a white
racist minority and called upon all States not to recognize the new
State.
CASES:
1. GUARANTY TRUST CO. OF NEW YORK v. UNITED STATES 304 U.S. 126
(1938)
Facts:
• On July 15, 1916, the Imperial Russian Government opened a bank
account with petitioner, the Guaranty Trust Company, a New York
banking corporation.
• On March 16, 1917, the Imperial Government was overthrown and
was succeeded by the Provisional Government of Russia which was
recognized by the United States on March 22, 1917.
• On July 5, 1917, Mr. Boris Bakhmeteff was officially recognized by the
President as the Ambassador of Russia. On July 12, 1917, the account
being overdrawn, $5M was deposited in the account by Mr. Serge
Ughet, Financial Attache of the Russian Embassy in the United States.
• On Nov. 7, 1917, the Provisional Government was overthrown and
was succeeded by the government of the Union of Soviet Socialist
Republics. At that time there remained on deposit in the account the
sum of approximately $5M.
• On Nov. 28, 1917, the USSR dismissed Bakhmeteff as Ambassador and
Ughet as Financial Attache . But the United States continued to
recognize Bakhmeteff as Ambassador until June 30, 1922. Thereafter,
until November 16, 1933, it continued to recognize the Financial
Attache, and after the retirement of Bakhmeteff as Ambassador it
recognized the former as custodian of Russian property in the United
States.
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
• On November 16, 1933, the United States recognized the USSR, and
on that date took from it an assignment of all “amounts admitted to
be due that may be found to be due it, as the successor of prior
Governments of Russia, or otherwise, from American nationals,
including corporations. ...” After making demand upon the petitioner
for payment of the balance of the account the United States, on
September 21, 1934, brought the present suit in the District Court for
Southern New York to recover the deposit.
• Petitioner then moved to dismiss the complaint on the ground that
the recovery was barred by the New York 6- year statute of
limitations.
• Respondent argues that the USSR is not subject to the local statute of
limitations both because a foreign, like a domestic sovereign, is not
subject to statutes of limitations, and its immunity constitutes an
implied exception to that statute and to the Conformity Act;
• Since no suit to recover the deposit could have been maintained in
New York by the USSR prior to its recognition by the United States
and, since it does not run during the period when suit cannot be
brought, the present suit is not barred.
• It is insisted further that even though the USSR is bound by the local
statute of limitations the United States is not so bound.
• Finally, the government assails the finding of fact of the District Court
that petitioner repudiated the liability upon the deposit account, and
contends that notice of the repudiation given by petitioner to
representatives of the Provisional Government was ineffective to set
the statute running against the USSR and in favor of petitioner.
Issues:
• Whether, in a suit at law brought in a federal District Court to recover
the deposit of a foreign government with a New York bank, such
government is subject to the local statute of limitations as are private
litigants;
• If so, whether the assignment of Nov. 16, 1933, by the USSR to the
United States of the right of the former to the bank account restricts
or overrides the operation of the statute of limitations.
• Whether in the circumstances of the case the running of the statute of
limitations, if otherwise applicable, was affected by the non-
35 | P a g e
recognition of the USSR during the interval of approximately 16 years
between recognition of the Provisional Government of Russia and
recognition of its successor.
Held:
1. That such notice of repudiation, given to the then duly recognized
diplomatic representatives, was notice to the Russian State.
2. That the later recognition of the Soviet Government left unaffected
those legal consequences of the previous recognition of the
Provisional Government and its representatives, which attached to
action taken here prior to the later recognition.
3. That, if the statutory period has run against the claim of the Russian
Government, the claim of the United States, as assignee, is likewise
barred since:
a) Proof that the statutory period had run before the assignment
offends against no policy of protecting the domestic sovereign. It
deprives the United States of no right, for the proof demonstrates
that the United States never acquired a right free of a preexisting
infirmity, the running of limitations against its assignor, which
public policy does not forbid.
b) Assuming that the respective rights of the bank and the Soviet
Government could have been altered, and the bank's right to
plead the statute of limitations curtailed, by force of an executive
agreement between the President and the Soviet Government,
there is nothing in the agreement and assignment of November
16, 1933, purporting to enlarge the assigned rights in the hands of
the United States, or to free it from the consequences of the
failure of the Russian government to prosecute its claim within
the statutory period.
4. Even the language of a treaty will be construed, wherever reasonably
possible, so as not to override state laws or to impair rights arising
under them
2. WULFSOHN et al. v. RUSSIAN SOCIALIST FEDERATED SOVIET REPUBLIC
234 N.Y. 372, 138 N.E. 24 (1923)
Facts:
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
 This was an action against the RSFR for the wrongful conversion of
personal property. The action was based on the seizure in Russia of
certain furs belonging to plaintiff.
 The RSFR is the existing de facto government of Russia. This is
admitted by the plaintiff. Otherwise there is no proper party
defendant before the court. It is claimed by the defendant. The
Appellate Division states that it is a matter of common knowledge. It
has not been recognized by the government of the United States.
Issue: “The result we reach depends upon more basic considerations than
recognition or non-recognition by the United States. Whether or not a
government exists, clothed with the power to enforce its authority within
its own territory, obeyed by the people over whom it rules, capable of
performing the duties and fulfilling the obligations of an independent
power, able to enforce its claims by military force is a fact, not a theory.”
Held:
 For its recognition does not create the state, although it may be
desirable. So only are diplomatic relations permitted. Treaties made
with the government which it succeeds may again come into effect. It
is a testimony of friendly intentions. Also in the country granting the
recognition that act is conclusive as to the existence of the
government recognized. Again, recognition may become important
where the actual existence of a government created by rebellion or
otherwise becomes a political question affecting our neutrality laws,
the recognition of the decrees of prize courts, and similar questions.
But, except in such instances, the fact of the existence of such a
government whenever it becomes material may probably be proved in
other ways.
 Here, however, we need no proof. The fact is conceded. We have an
existing government, sovereign within its own territories. There
necessarily its jurisdiction is exclusive and absolute. It is susceptible of
no limitation not imposed by itself. This is the result of its
independence. It may be conceded that its actions should accord
with natural justice and equity. If they do not, however, our courts
36 | P a g e
are not competent to review them. They may not bring a foreign
sovereign before our bar, not because of comity, but because he has
not submitted himself to our laws. Without his consent he is not
subject to them. But, whether recognized or not, the evil of such an
attempt would be the same. ‘To cite a foreign potentate into a
municipal court for any complaint against him in his public capacity is
contrary to the law of nations, and an insult which he is entitled to
resent.’ In either case, to do so would ‘vex the peace of nations.’ In
either case the hands of the state department would be tied.
Unwillingly it would find itself involved in disputes it might think
unwise. Such is not the proper method of redress, if a citizen of the
United States is wronged. The question is a political one, not confided
to the courts, but to another department of government. Whenever
an act done by a sovereign in his sovereign character is questioned, it
becomes a matter of negotiation, or of reprisals, or of war.
3. RUSSIAN SOCIALIST FEDERATED SOVIET REPUBLIC v. CIBRARIO et al.
235 N.Y. 255, 139 N.E. 259 (1923)
Facts: The Russian Soviet Government, through the Cinematographic
Committee of its Commissariat of Public Instruction, entered into a
contract with the defendant for the purchase of moving-picture machines
and supplies and delivered $1M to the U.S. commercial attaché at
Petrograd to be deposited in a bank in the U.S. subject to draft according
to the contract’s terms. The attaché deposited the money in the National
City Bank of New York. Thereafter the Soviet Government brought an
action in N.Y. to compel the defendant to account for money alleged to
have been fraudulently obtained under the contract. From an order
granting an injunction and appointing a receiver, the defendant appealed
to the N.Y. Supreme Court.
Issue: In Wulfsohn v. Russian Federated Soviet Republic, we held that our
courts would not entertain jurisdiction of an action brought without its
consent against an existing foreign government, in control of the political
and military power within its own territory, whether or not such
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
government had been recognized by the United States. We have now to
determine whether such a government may itself become a plaintiff
here.
Held:
 If recognized, undoubtedly it may. Conceivably this right may depend
on treaty. But if no treaty to that effect exists the privilege rests upon
the theory of international comity. This is so with regard to all foreign
corporations. Their power to sue may be regulated as is done by
section 15 of our General Corporation Law. And except as limited by
constitutional provisions the same thing is true of those not citizens of
our state. Much more true is it that the right of a foreign government
to sue is likewise based upon the same consideration. Neither a
natural person nor a corporation, ordinarily we would not recognize it
as a proper party plaintiff. It represents, however, the general
interests of the nation over which it has authority. We permit it to
appear and protect those interests as a body analogous to one
possessing corporate rights, but solely because of comity.
 Comity may be defined as that reciprocal courtesy which one member
of the family of nations owes to the others. It presupposes friendship.
It assumes the prevalence of equity and justice. Experience points to
the expediency of recognizing the legislative, executive, and judicial
acts of other powers. We do justice that justice may be done in return.
 ‘What is termed the comity of nations is the formal expression and
ultimate result of that mutual respect accorded throughout the
civilized world by the representatives of each sovereign power to
those of every other, in considering the effects of their official acts. Its
source is a sentiment of reciprocal regard, founded on identity of
position and similarity of institutions.’
 As defined by Webster, comity ‘is in general terms that there are
between nations at peace with one another rights both national and
individual resulting from the comity or courtesy due from one friendly
nation to another. Among these is the right to sue in their courts
respectively.’ It may, however, not be demanded as a right. It is
yielded as a favor. Not an arbitrary favor; nor is it the favor of the
courts.
37 | P a g e
Does any rule of comity, then, require us to permit a suit by an
unrecognized power? In view of the attitude of our government, should we
permit an action to be brought by the Soviet government?
 To both queries we must give a negative answer. We may state at
the outset that we find no precedent that a power not recognized
by the United States may seek relief in our courts. Such
intimations as exist are to the contrary. Statements are that ‘a
recognized government may be a plaintiff.’ …
What, then, is the meaning and effect of recognition in its relation to
comity?
 A foreign power brings an action in our courts not as a matter of right.
Its power to do so is the creature of comity. Until such government is
recognized by the United States no such comity exists. The plaintiff
concededly has not been so recognized. There is, therefore, no proper
party before us.
 Recognition, and, consequently, the existence of comity, is purely a
matter for the determination of the legislative or executive
departments of the government.
 Who is the sovereign of a territory is a political question. In any case
where that question is in dispute the courts are bound by the decision
reached by those departments. It is not for the courts to say whether
the present governments of Russia or Mexico or Great Britain should
or should not be recognized. They are or they are not. That is as far as
we may inquire. Nor is anything here decided inconsistent with
Wulfsohn v. RSFR. Upon the facts in that case, if the defendant was
not an existing government it might not be sued. There was no party
before the court. If it were, as was alleged and admitted, the same
result followed, not because of comity, but because an independent
government is not answerable for its acts to our courts.
 We are the more ready to reach this conclusion because to hold
otherwise might tend to nullify the rule that public policy must always
prevail over comity.
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
4. Banco Nacional de Cuba v. Sabbatino 376 U.S. 398 (1964)
 A US sugar distributor, Farr Whitlock and Co. contracted with a US-
owned sugar producer in Cuba, Compania Azucarera Vertientes-
Camaguay de Cuba (CAV), to import sugar into the US.
 As part of a trade dispute, the government of Cuba nationalized their
sugar industry and seized the assets of several US-owned sugar
producers, including CAV.
 CAV still made the delivery, but Farr didn't send the payment to the
Cuban government, instead they paid CAV's legal representative in the
US, Sabbatino.
 Banco National de Cuba (BNC) sued Sabbatino in US Court to get them
to hand over the money for the sugar.
o BNC argued that the Cuban nationalization was an official Act
of State and should be honored by the US.
 The Act of State Doctrine says that the propriety of
decisions of other countries relating to their internal
affairs would not be questioned in US courts.
o Sabbatino argued that the Act of State Doctrine was
inappropriate because:
 The act in question was a violation of international
law;
 The doctrine should not be applied unless the
Executive branch asks the court to do so;
 Cuba had brought the suit as a plaintiff and had
given up its sovereign immunity.
 The Trial Court found for Sabbatino. BNC appealed.
 The Appellate Court affirmed. BNC appealed.
 The US Supreme Court reversed.
o The US Supreme Court found that the policy of US Federal
courts would be to honor the Act of State Doctrine.
 The Court found that the Cuban seizure did not
violate international law, because there was no clear
international opinion that a seizure of land or
property in a country by the government of that
country was illegal.
38 | P a g e
 The Court found that there was no need for the
Executive branch to ask the courts to apply the Act
of State Doctrine.
 The Court found that it should be assumed
to apply because if even a single court
made a mistake and failed to apply it, it
could mess up US relations with other
countries.
 The Court found that the Act of State Doctrine still
applied, even thought the State was a plaintiff.
 Similar to the idea of sovereign immunity
where States can sue, but cannot be sued.
 Justice White wrote a "dismayed" dissenting opinion, asserting that
the Court's application of the act of state doctrine was too rigid - more
so, in fact than the doctrine as applied by other countries.
 In response to this decision, Congress passed the Second
Hickenlooper Amendment (aka the Sabbatino Amendment) that
revoked the presumption in favor of the validity of the Act of State
Doctrine.
5. The Ambrose Light 25 F. 408 (1885)
Facts:
 A rebellion had broken out in Colombia
 Would result in the establishment of the state of Panama
 April 24, 1885: the Ambrose Light was seized by an American gun-boat
Gun-boat was looking for an insurgent who had fired on Colon
Instead, it saw the Ambrose Light which was armed and displaying
strange part
 Ambrose Light was part of the rebel forces and engaged in hostile
operations against Columbia
 Law of Nations Govern
• She was owned by one of the insurgents that signed her
commission
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
• None of her officers or crew were residents of this
country.
Issue: Whether the insurgents had or had not obtained any previous
recognition of their belligerent rights?
Held:
1. Whether the insurgents had or had not obtained any previous
recognition of their belligerent rights?
• The case is not one where recognition of belligerency has been
accorded by the parent government, or by any other nation
• Effect of Recognition:
• Authorizes courts of law to treat the insurgents as lawful
combatants
• Burke: “it is an intermediate treaty that puts rebels in possession
of the law of nations.”
• Gives them temporarily, for war purposes, the status of an
established nation, and all the rights of public war
• It relieves the parent state from all responsibility for damages for
any irregularities or violence committed by the other belligerent
• Concession to the rebels in the interest of humanity and expediency
• An adjustment by foreign nations of their own relations
• Since recognition of belligerency is not usually accorded till
rebellion rises to the dignity of real war, and in its general aspects
is fairly entitled to belligerent rights, notwithstanding the burdens
it inflicts on other nations
• Recognition of belligerency is pro tanto
• Essentially a recognition of quasi-sovereignty
• Power to grant or to withhold it falls within the exclusive province of
the political or executive department
• Recognition may rightfully be given or withheld by other nations
• According to their views of their own interests, their moral
sympathies, their ties of blood, or their treaty obligations
• Or according to their views of the merits or demerits of the revolt,
its extent, or probabilities of success
39 | P a g e
• In the absence of any recognition of these insurgents as belligerents,
the Ambrose Light is held to be have been lawfully seized, as bound
upon an expedition technically piratical… BUT
• Additional facts show such subsequent implied recognition by our
government of the insurgent forces as a government de factor, in
state of war with Colombia, and entitled to belligerent rights
• Should prevent the condemnation of the vessel as prize
• Recognition
• Implied
• When there is a long acquiescence in belligerent acts
affecting another nation’s interests, without protest or
objection
• Express
• When made by a proclamation of neutrality
• Where no formal and express action has been taken by the political or
executive department as to recognition of belligerency, courts MUST
necessarily pas upon the legal effect of such proved action of those
departments of the government as bears upon the question of
recognition
• Attitude assumed by our government
• A recognition of the existing insurrection as constituting a state of
civil war
• Assumes that Colombian government is a belligerent
• Insurgents hold those parts as a de facto power, to the exclusion
of the Colombian government and of its sovereign authority
• Insurgents are in arms against the government
• Our government has declared that it will not recognize any attempt by
the Colombian government to close these ports by virtue of its own
sovereignty as lawful or valid
• Nor any closure, expect by means of an effectual blockade (BY
ACTS OF WAR)
• In saying that it would recognize no rights of the Colombian
government at those ports, except belligerent rights
• Government implies belligerent rights in those who hold those
ports adversely
• No stronger assertion by implication of the rebel de facto
authority, and of a state of war, could well be made
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012

prevailing before, at the time and since this forfeiture is alleged to

have been occurred
6. The Three Friends 166 U.S. 1, 17 S.Ct. 495 (1897) _____________________________________________________________

Facts: Succession of States and

Succession of Governments
- The steamer Three Friends was seized November 7, 1896, by a
collector of customs in Florida, as forfeited to the United States Principle of Continuity
under a statute prohibiting the arming of a vessel for hostile  A rebuttable presumption that the legal status of territory should
purposes against an entity with whom the US was at peace. follow that of territory to which it is connected;
 often invoked in support of claims to sovereignty over territory.
o The vessel was engaged in hostile operations in Cuba
Public International Law, 2d ed. by John H. Currie
against the Spanish government, with whom the US was
at peace.
What is continuity and succession?
o The US had not accorded recognition to the Cuban
 Where a new entity emerges, one has to decide:
rebels.
 whether it is a totally separate entity from its predecessor
 Or whether it is a continuation of the predecessor in a different
Issue: Should the vessel be released?
form
Held: No. The vessel should not have been release as it was, and should be
How to determine whether it is succession or continuity?
recalled on the ground that the order was improvidently made.
 Considering the criteria of the statehood
 Assertions as to status made by the parties directly concerned
- It is an agreed principle of international law that the recognition rd
 The attitudes adopted by 3 states and international organizations
of belligerency, while not conferring all the rights of an
independent state, concedes to the Government recognized
REFRESHER: Criteria of a statehood according to Declarative Theory
rights, and imposes upon it the obligations of an independent
 a defined territory;
state in matters relating to the war being waged.
 a permanent population;
o The recognition of belligerency involves the right of
 a government and
blockade, visitation, search and seizure of contraband
 a capacity to enter into relations with other states.
articles on the high seas and abandonment of claims for
According to declarative theory, an entity's statehood is independent of its
reparation on account of damages suffered by citizens
recognition by other states.
from prevalence of warfare.
o Belligerency is recognized when a political struggle has
 EXAMPLES:
attained a certain magnitude and affects the interests of
 Soviet Union to Russia –successful
the recognizing power
 Baltic States – successful but a different story
- It belongs to the political department to determine when
 Yugoslavia-unsuccessful
belligerency shall be recognized. Here, the political department
has not recognized the existence of insurrectionary warfare

40 | P a g e
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
THE CASE OF RUSSIA: INTRODUCTION
 USSR was formed by the union of Russia, Ukraine, Belarus, and the
Transcaucasian Republics, and some Asian States
 Russia is one of the resulting states from the fallout of the Soviet
Union. Russia actually assumed the duties of the Soviet Union when it
dissolved.
DIFFERENCE BETWEEN USSR AND RUSSIA
 1. Soviet Union, or the Union of Soviet Socialist Republics, is a defunct
union of countries that spans Europe and Asia. It had a single-party
political system and a much closed economic policy.
 2. Russia, or the Russian Federation, is the successor of the Soviet
Union and now only consists of Russia and Siberia for the most part. It
has since abandoned the single party political system and is now a
federalist republic.
 POSITION:
 The Russian Federation took the position that it was a
continuation of the USSR
 This assertion was clearly made with regard to their membership
in the UN
 The Council of Heads of State of the Commonwealth of
Independent States supported Russia’s continuance of the
membership of USSR in the UN
 Including permanent membership of the security Council and
other International Organizations
THE CASE OF BALTIC STATES
 REFRESHER:
 The Baltic States include the following:
• Estonia
• Latvia
• Lithuania
> The Baltic States became independent after WW1 nut was annexed by
the Soviet Unionin 1940
 The European Community adopted a Declaration on August 27, 1991
welcoming the restoration of the sovereignty and independence which
they lost in 1941
41 | P a g e
 The internationally accepted restoration of independence would
appear that they do not constitute successor states to the former
USSR and would not be liable of the debts of the latter
THE CASE OF YUGOSLAVIA
 Refresher:
 Yugoslavia was once called as Socialist Federal Republic of
Yugoslavia (SFRY)
 It was a socialist state and a federation made up of six socialist
republics:
• Bosnia and Herzegovina
• Croatia
• Macedonia
• Montenegro
• Serbia
• Slovenia.
 Slovenia, Croatia and Bosnia has been recognized by the member
states of the European Community and been admitted to the UN
 While FEDERAL REPUBLIC OF YUGOSLAVIA (Serbia and Montenegro)
states that they are the continuation of the former Socialist Federal
Republic
 The claim was OPPOSED by the former members of the Republic
 And by the INTERNATIONAL COMMUNITY
SO, IT WAS NOT ACCEPTED AS A CONTINUATION OF THE SOCIALIST
FEDERAL REPUBLIC
2000, they acceded and said that they are indeed a new state.
THE PRINCIPLE OF STATE CONTINUITY
 It was recognized by International Organizations and other States.
 Recognition by IOs and other States is a determining factor for a state
to successfully claim succession or continuity
Succession of States
 One State takes over the territory of another State, which thereby
ceases to exist. (Slomanson)
 The replacement of one state by another in the responsibility for the
international relations of the territory. (As defined in the 1978 Vienna
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
Convention on Succession in Respect of Treaties and 1983 Vienna
Convention on Succession of States)
 Deals with the transmission or extinction of rights and obligations of a
state that no longer exists or has lost part of its territory. (Schacter)
Succession occurs in a variety of circumstances
 Breakups (Contemporary examples include the 1993 split of
Czechoslovakia into two states: the Czech Repulic and Slovakia. These
republics, in their respective territories, succeeded to the territory
formerly occupied by the former state of Czechoslovakia. This split
was referred to as the “velvet divorce” because of the bloodless
nature of Czechoslovakia’s separation in to two distinct states)
 Mergers (1990 Merger of the three territories of the Federal Republic
of (West) Germany, the (East) Germany Democratic Republic and the
City of Berlin.)
Succession occurs in a variety of circumstances
 When a state or a portion of it is occupied by another state (Nazi
Germany’s puppet state in France, referred to as the “Vichy State”
ruled within the southern part of the country from 1940-1942)
 Succession can result from independence and partition (Contemporary
India is an example of both. In 1947, the territory of India achieved full
independence. The new State of India replaced the former territory of
the same name, which had long been under British control. The Indian
territory was split into two distinct states: India and Pakistan. This
partition of the former territory of India established two new
international states, each with its own international legal personality)
Three questions about the effect of succession
1. Preexisting treaties made by the predecessor State;
2. Successor State property rights and debt obligations; and,
3. The resulting nationality of the inhabitants of the successor State.
Does the successor State take over the treaty obligations of the
succeeded state?
 In cases of ‘partial succession’, i.e. Annexation or cession,
42 | P a g e
 The ‘losing’ state is not extinguished, hence, no succession to
treaties can occur.
 Historical view:
 A new State commences its career with a clean slate.
 In cases of emergence of new states,
 It is not bound by the treaties of the predecessor sovereign
by virtue of a principle of state succession. As a matter of a
general principle of a new state, ex hypothesi a non-party,
cannot be bound by a treaty, and in addition other parties to
a treaty are not bound to accept a new party, as it were, by
operation of law.
Does the successor State take over the treaty obligations of the
succeeded state?
 In sum it up,
 Global perspectives are by no means uniform. At present, there is no
universal rule regarding State succession and prior treaty obligations.
Some treaties cease to exist when the State that concluded them
ceases to exist. Some treaties survive succession when they contain
norms that have been adopted by many nations.
Does the successor State take over the property and debts of the
succeeded State?
 As a general answer, Yes!
 The property and the debts of an extinct State normally become the
property of the successor State.
 Why? Because the successor State is expected to absorb both the
benefits and the burdens maintained by the former state.
 Exception:
 When the debts of the succeeded State are contrary to the basic
political interests of the successor State hence the latter cannot be
expected to absorb these debts; repugnant to the fundamental
interests or public policy.
Must the successor State provide its citizenship to the citizens of the
succeeded State?
 There are two views:
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
1. When a State ceases to exist, so does the citizenship that it has
previously conferred on its.
2. Inhabitants. The former citizens of the State must then look to the
internal law of the successor State for their citizenships rights.
3. The new State may not force its citizenship on individuals within
what has become a subjugated State.
 To sum up, it may be said that there is no rule of international law
under which the nationals of the predecessor State acquire the
nationality of the successor State.
Succession of Governments
 Internal political regimes and a government is not considered an
international entity/person.
 Unlike the possible avoidance, a new government may not claim a
“clean slate”.
 Otherwise, the stability of international relations would be
significantly undermined if questions of succession to obligations
arose every time a new government assumed power.
 International Law theory provides further support for the view:
 That new governments cannot avoid international
obligations, because, unlike a State, a government is not an
international person.
CASES
THE SAPPHIRE
78 U.S. 164 December Term, 1870
Facts:
1. The case was one of collision between the American ship Sapphire and
the French transport Euryale, which took place in the harbor of San
Francisco,
a. By which the Euryale was considerably damaged.
2. A libel was filed in the District Court two days afterwards, in the name
of the Emperor Napoleon III, then Emperor of the French, as owner of
the Euryale, against the Sapphire.
43 | P a g e
a. The claimants filed an answer, alleging, among other things,
that the damage was occasioned by the fault of the Euryale.
b. Depositions were taken
3. LC: decreed in favor of the libellant, and awarded him $15,000, the
total amount claimed.
4. Circuit Court: affirmed the decree.
5. They then, in July, 1869, appealed to this court.
a. In the summer of 1870, Napoleon III was deposed.
Issue: WON the suit had not become abated by the deposition of the
Emperor Napoleon III.
Held/Ratio:
1. Whether the suit has become abated by the recent deposition of the
Emperor Napoleon.
a. We think it has not. The reigning sovereign represents the
national sovereignty, and that sovereignty is continuous and
perpetual, residing in the proper successors of the sovereign
for the time being.
b. Napoleon was the owner of the Euryale, not as an individual,
but as sovereign of France.
c. This is substantially averred in the libel. On his deposition the
sovereignty does not change, but merely the person or
persons in whom it resides. The foreign state is the true and
real owner of its public vessels of war.
d. The reigning Emperor, or National Assembly, or other actual
person or party in power, is but the agent and representative
of the national sovereignty. A change in such representative
works no change in the national sovereignty or its rights. T
e. The next successor recognized by our government is
competent to carry on a suit already commenced and
receive the fruits of it. A deed to or treaty with a sovereign
as such enures to his successors in the government of the
country.
f. If a substitution of names is necessary or proper it is a formal
matter, and can be made by the court under its general
power to preserve due symmetry in its forms of proceeding.
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
i. No allegation has been made that any change in
the [78 U.S. 164, 169] real and substantial
ownership of the Euryale has occurred by the recent
devolution of the sovereign power. The vessel has
always belonged and still belongs to the French
nation.
2. If a special case should arise in which it could be shown that injustice
to the other party would ensue from a continuance of the proceedings
after the death or deposition of a sovereign, the court, in the exercise
of its discretionary power, would take such order as the exigency
might require to prevent such a result.
The Tinoco Case
18 A.J.I.L 147 (1924)
Facts:
1. January (1917)
a. The Government of Costa Rica was overthrown by Federico
Tinoco, the Secretary of War.
b. He assumed power, called an election, and established a new
constitution.
c. His government continued until August 1919, when Tinoco
retired, and left the country.
2. The old constitution was restored and elections held under it.
a. It was the restored government which signed the arbitration
treaty.
3. Great Britain’s claims was on behalf of two British-owned corporations
which had acquired rights from and under the Tinoco government but
which were invalidated by the Law of Nullities passed by the Puerto
Rican Government:
a. Royal Bank of Canada claimed:
i. Banco Internacional of Costa Rica and the
Government of Costa Rica are indebted to it proven
by the holding of 998 1000 colones bills
b. Central Costa Rica Petroleum Company [CCRPC] claimed:
i. It owns the rights to explore and exploit petroleum
reserves in Costa Rica
ii. This is based on a grant issued by Tinoco
44 | P a g e
4. Government of Costa Rica denies its liability for the acts or obligations
of the Tinoco government and maintains that the Law of Nullities was
a legitimate exercise of its legislative governing power.
5. Defense:
a. Great Britain
i. The Tinoco government was the only government of
Costa Rica de facto and de jure for two years and
nine months
ii. The succeeding government could not by legislative
decree vavoid responsibility for the acts of that
government affecting British subjects except in
violation of international law.
iii. The contracts validly made with the Tinoco
government must be performed by the present
Costa Rican government
b. Costa Rica
i. Contracts and obligations set up by Great Britain on
behalf of its subjects are void and do not create a
legal obligation because the government of Tinoco
was in violation of the constitution of Costa Rica of
1871.
ii. Tinoco was not a de facto or de jure government
according to the rules of international law.
iii. Great Britain is stopped by the fact that it did not
recognize the Tinoco government during its
incumbency.
Issue: WON the Tinoco government was a de facto government according
to the rules of international law.
Held: Yes. Tinoco Government was indeed the legal representative of the
Costa Rican state during its tenure. The restored government of Costa Rica
was duty bound to respect all of its contracts made in good faith.
Ratio:
1. The non-recognition by other nations of a government claiming to be a
national personality is usually appropriate evidence that it has not
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
attained the independence and control entitling it by international law
to be classed as such
a. Such non-recognition for any reason, however, cannot
outweigh the evidence disclosed by this record before me as
to the de facto character of Tinoco government, according to
the standard set by international law.
b. The arbitrator found that for a full two years, Tinoco and
legilatives assen,bly under him peaceably administered the
affairs of the government of Costa Rica, and there was no
disorder of a revolutionary character during the interval
c. No other government of any kind asserted power in the
country; there is no substantial evidence that Tinoco was not
in actual and peaceable administration without resistance or
conflict or contest by anyone until a few months before the
time when he retired and resigned
2. To hold that a government which establisheds itself and maintains a
peaceful administration with the acquiescence of the people for a
substantive period of time does not become a de facto government,
unless, conforms to a previous constitution would be to hold that
within the rules of international law a revolution contrary to the
fundamental law of the existing government cannot establish a new
government.
a. To speak of a revolution creating a de facto government
which conforms to the limitations of the old constitution is to
use a contradiction of terms.
International Law Principles:
 Dr. John Bassett Moore: “Changes in the government or the internal
policy of a state do not as a rule affect its position in international
law. . . .
o [T]hough the government changes, the nation remains, with
rights and obligations unimpaired. . . .
o The principle of the continuity of states has important
results.
 The state is bound by engagements entered into by
governments that have ceased to exist; the restored
45 | P a g e
government is generally liable for the acts of the
usurper. . . .
 The origin and organization of government are
questions generally of internal discussion and
decision.
 Foreign powers deal with the existing de facto
government, when sufficiently established to give
reasonable assurance of its permanence, and of the
acquiescence of those who constitute the state in its
ability to maintain itself, and discharge its internal
duties and its external obligations.”
GEORGE W. HOPKINS (U.S.A.) v. UNITED MEXICAN STATES.
March 31, 1926
RESPONSIBILITY FOR ACTS OF DE FACTO GOVERNMENT.—EFFECT OF
DECREES OF NULLITY.—NON-PAYMENT OF MONEY ORDERS.
Respondent Government held responsible for non-payment of money
orders of Huerta Government on ground they involved acts of an
unpersonal character. Responsibility for acts of Huerta Government of a
personal character will depend on whether at the time in question it had
control over a major portion of the territory and a majority of the people
of Mexico. Decrees of nullity subsequently issued by Carranza Government
held not binding on the tribunal.
FACTS:
1. George W. Hopkins, represented by the United States of America
claimed six postal money orders aggregating P1013.40 which he
allegedly purchased from the Mexican Government at its post offices
in Sinaloa and Sonora.
2. It is alleged that these money orders were in due time presented to
the Mexican authorities and payment was refused by them.
3. A Mexican Agent filed a motion to dismiss for such claim saying that
a. these money orders were issued by the Huerta
Administration, which was illegal,
b. that such administration did not bind Mexico
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
c. that these orders cannot be made the basis of a claim before
the Commission against the United Mexican States.
ISSUES:
1. Are the transactions considered as unpersonal towards the
government binding under the current administration? YES
HELD:
 The greater part of governmental machinery in every modern country
is not affected by changes in the higher administrative officers.
 The difficulty of distinguishing between the Government itself and the
administration of that Government arises
o at the point where the voluntary dealings and relations
between the individual and the government agencies assume
a personal character in support of the particular agencies
administering the government for the time being.
 But the ordinary agencies, departments, and bureaus of the
Government must continue to function notwithstanding its principal
administrative offices may be in the hands of usurpers, and in such a
case the sale and delivery to these necessary and legitimate agencies
of supplies, merchandise, and the like, to enable the Government itself
in its unpersonal aspect to function is a very different transaction from
one having for its object the support of an individual or group of
individuals seeking to maintain themselves in office.
 In the field of international relations the distinction or a personal or
unpersonal act is apparent
o Where pre-existing relations with government agencies
continued under such circumstances as not to imply either
approval or disapproval of the new administration or
recognition of its authority these transactions must be
treated as government transactions and binding on it as such
rather than transactions had with a particular administration
 Even the United States, though placing its stamp of disapproval in the
most unmistakable manner on the act of Huerta in usurping authority,
kept its embassy in Mexico City open for the transaction of routine
business, entrusting it to a chargé d'affaires, and maintained its
consulates throughout Mexico.
46 | P a g e
o Such relations, so maintained, were entirely unpersonal; they
constituted relations with the United Mexican States, with its
Government as such, without respect to the status of the
individual assuming to act for the Government.
 The same cleavage was recognized in connection with the financial
transactions of the Huerta administration by later administrations of
the Government of Mexico.
o The series of Mexican bonds issued during the Huerta régime,
the proceeds of which were applied to the payment of the
interest on the pre-existing debt of Mexico, have been
uniformly recognized as valid,
o while other series of the same issue, the proceeds of which
are claimed to have been applied to the maintenance in
power of the Huerta administration or to the purchase of
arms, munitions, and the like, have been repudiated.
 It is clear that the sale by the Mexican Government to and the
purchase by the claimant Hopkins of postal money orders falls within
the category of purely government routine having no connection
with or relation to the individuals administering the Government for
the time being.
o But it by no means follows that if the contracts of the
claimant Hopkins, evidenced by postal money orders, should
be treated as contracts with the Huerta administration in its
personal aspects, Mexico is not bound by such contracts.
 The acts of an organization (Huerta) become binding on the nation as
of the date territory comes under its domination and control
conditioned upon is ultimate success.
o The binding force of such acts of the Huerta administration as
partook of the personal character as contradistinguished
from the Government itself will depend upon its real control
and paramountcy at the time of the act over a major portion
of the territory and a majority of the people of Mexico.
 From the foregoing the Commission concludes that Hopkins' contracts
are unaffected by the legality or illegality of the Huerta administration
as such, that they bind the Government of Mexico, that they have not
been nullified by any decree issued by Carranza, and that they have
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
not been and cannot be nullified by any unilateral act of the
Government of Mexico.
West Rand Central Gold Mining Company, Limited v. The King, 2 K.B. 391
[1905]
1905 May 3, 4; June 1
Lord Alverstone C.J., Wills and Kennedy JJ.
Facts:
1. Atty.-General, on behalf of the Crown, demurred a petition of right
presented by WRCGMC
2. WRCGMC alleged that
a. 2 parcels of gold amounting to 38041 had been seized by
officials of the South African Public
b. while in transit from Johannesburg to Cape Town and at the
bank premises of WRCGMC on another day
3. No statement was made in the petition showing the right of the
Government of Transvaal Republic to seize the said gold but stated
a. that the said Government, by the laws of the said Republic,
was under a liability to return the said gold, or its value
b. but none of the said gold has been returned to your
suppliants, nor did the said Government make any payment
in respect thereof.
4. Petition then alleged that
a. a state of war commenced at 5 P.M. on October 11, 1899,
b. that the forces of the late Queen conquered the Republic
c. that by a Proclamation of September 1, 1900, the whole of
the territories of the Republic were annexed to, and became
part of, Her Majesty's dominions,
d. and that the Government of the Republic ceased to exist.
5. The petition then claimed that by reason of the conquest and
annexation
a. Her Majesty succeeded to the sovereignty of the Transvaal
Republic,
b. and became entitled to its property;
c. and that the obligation which vested in the Government was
binding upon His present Majesty the King.
47 | P a g e
6. Counsel for WRCGMC, Lord Cecil argued that all contractual
obligations incurred by a conquered state, before war, pass upon
annexation to the conqueror, no matter what was their nature,
character origin, or history—Upon ethical grounds such as public duty
a. That if the conquering state doesn’t limit such obligations to
take when being at peace with the conquered state, it would
be as if all obligations of the latter state will be taken.
Issues:
1. By international law, is the Sovereign of a conquering State is liable
for the obligations of the conquered? NO
2. Does international law form part of the law of England?
3. Are the rights and obligations, which were binding upon the
conquered State, be protected and can be enforced by the municipal
Courts of the conquering State? NO
Held:
First
 The petition appears to us demurrable for the reason that it shows no
obligation of a contractual nature on the part of the Transvaal
Government.
 all that appears in the petition the seizure might have been an act of
lawless violence.
 The proposition of Lord Cecil cannot be accepted
o Because it would be that contracts first would be made by
stated before conquest which no conqueror would ever think
of carrying out
 It cannot be sustained that by international law the conquering
country is bound to fulfil the obligations of the conquered, upon
principle
 It would be absurd that a country who has made war and succeeded
would take upon itself the liability to pay out from its resources the
debts of the conquered state.
 The conqueror may impose terms he thinks fit in respect of the
obligations of the conquered territory, and that he alone must be the
judge in that matter
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
 The doctrine raised by Lord Cecil taken from older writers is only a
mere expression of ethical views of the writers
o Opinions of these writers are inconsistent with the law
recognized by the English Courts
o So as stated by Lord Mansfield in Campbell v. Hall:
o It is left by the Constitution to the King's authority to grant or
refuse defeat. ... If he receives the inhabitants under his
protection and grants them their property he has a power to
fix such terms and conditions as he thinks proper. He is
entrusted with making the treaty of peace; he may yield up
the conquest or retain it upon what terms he pleases.
o These powers no man ever disputed, neither has it hitherto
been controverted that the King might change part or the
whole of the law or political form of government of a
conquered dominion."
Second
 It is known that whatever has received the common consent of the
civilized nations must have received the assent of the country (Britain)
and which has also been assented with other nations in general may
be called international law, and be applied by the municipal tribunals
when needed
o But any doctrine invoked must be one really accepted as
binding between nations and be proved by satisfactory
evidence
 That it has been recognized and acted upon
in the country
 Or is of such nature so widely accepted that
it would be hard to believe that any civilized
State would repudiate it
 Mere opinion of jurists that these doctrines ought to be recognized,
are not sufficient.
o They must have received the express sanction of
international agreement
o Or gradually grown to be part of international law by
frequent recognition in dealing between various nations
 INTERNATIONAL LAW (Lord Russell)
48 | P a g e
o sum of the rules or usages which civilized States have agreed
shall be binding upon them in their dealings with one another
 Law of nations forms part of the law of England should not be
construed as to include opinions of text-writers upon a question which
there is no evidence that Great Britain ever assented or denied by its
courts
Third
 Obligations of conquering states with regard to private property of
private individuals, particularly land which title has been perfected
before being conquered are different from obligations which arise
with respect of personal rights by contract.
 Cession of territory does not mean confiscation of the property of
individuals in that territory
 No right on the part of WRCGMC is included in the petition which can
be enforced against the King or in any municipal court
 DEMURRER ALLOWED, with costs.
Haile Selassie v. Cable wireless ltd.
Facts:
 This is an appeal from a judgment of Bennett J. in an action by the late
Emperor of Abyssinia against Cable and Wireless Limited.
 The claim in the action was for an account of all dealings between the
plaintiff and the defendant company under a certain agreement, and
payment of the amount found due.
 The agreement in question was an agreement between the competent
Minister of the then Government of Ethiopia and the defendant
company in relation to the establishment of a wireless station at Addis
Ababa, the capital city of Abyssinia.
 Bennett J. held that the events which had taken place in Ethiopia and
the other matters which were established before him were not
sufficient to divest the plaintiff as still de jure Emperor of Ethiopia, of
the right to recover the debt in suit in this country.
 Under that agreement certain sums admittedly became due from the
defendant company. The dispute between the parties turned on the
fact that the defendants asserted that the plaintiff had no title to sue
for those moneys. Bennett J. decided in favor of the plaintiff
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
 It is shown that the annexation of Ethiopia by His Majesty the King of
Italy had not yet been recognized by His Majesty's Government, but
that His Majesty's Government recognized the plaintiff as the de jure
Emperor of Ethiopia,
 That His Majesty's Government recognized the Italian Government as
the Government de facto of virtually the whole of Ethiopia, and such
recognition had existed since the second half of December, 1936, that
is to say, since a date earlier than the date of the issue of the writ,
which was issued on January 4, 1937.
 Bennett J. held that the events which had taken place in Ethiopia and
the other matters which were established before him were not
sufficient to divest the plaintiff as still de jure Emperor of Ethiopia, of
the right to recover the debt in suit in this country.
 From that judgment this appeal is brought
Issue/held: Is the plaintiff entitled to the claim? NO
Rationale:
 Pending appeal, there was an alteration of Factual situation
 a certificate signed by the direction of His Majesty's Principal
Secretary of State for Foreign Affairs, dated November 30, 1938,
His Majesty's Government no longer recognizes His Majesty Haile
Selassie as de jure Emperor of Ethiopia;
 His Majesty's Government now recognizes His Majesty the King of
Italy as de jure Emperor of Ethiopia. From that certificate two
things emerge as the result of the recognition.
 His Majesty the King of Italy as Emperor of Abyssinia is entitled
by succession to the public property of the State of Abyssinia,
and the late Emperor of Abyssinia's title thereto is no longer
recognized as existent.
 Further, it is not disputed that that right of succession is to be
dated back at any rate to the date when the de facto recognition,
recognition of the King of Italy as the de facto Sovereign of
Abyssinia, took place.
 That was in December, 1936. Accordingly the appeal comes
before us upon a footing quite different to that upon which the
action stood when it was before Bennett J.
49 | P a g e
 the title of the plaintiff to sue is necessarily displaced. When the
matter was before Bennett J., the de jure recognition not having
taken place, the question that he had to deal with was whether
the effect of the de facto conquest of Abyssinia and the
recognition de facto of the Italian Government's position in
Abyssinia, operated to divest the plaintiff of his title to sue
 Whether that decision was right or whether it was wrong is a
question we are not called upon to answer, but what is admittedly
the case is that if Bennett J. had had before him the state of
affairs which we have before us, his decision would have been the
other way.
 The action was dismissed
Robert E. Brown.
Facts:
 This is an arbitration case under the special agreement concluded
between the US and Great Britain
 The US, on behalf of Robert Brown, an American national, claims a
sum of money with interest from Great Britain
 Because of the denial of certain property rights in mining claims
 It is contended in this case that Brown acquired property rights in
Republic of South Africa in 1895 which was conquered and annexed by
Great Britain
Issue:
 Whether there was a denial of justice in any event?
 Whether in case a denial of justice is found, any claim for damages
based upon it can be made against the British Government?
Held:
st
 1 issue -YES
nd
 2 issue - NO
Ratio:
st
1 issue
 Brown had substantial rights of a character entitling him to an
interest in a real property or to damages for the deprivation
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
 He was deprived of these rights by the Government of the South Africa
Republic in such manner and under such circumstances as to amount
to a denial of justice within the settled principle of international law
 The Court is persuaded that on the whole case, giving proper weight
to the cumulative strength of the numerous steps taken by the
Government of the South African Republic with the obvious intent to
defeat Brown's claims, a definite denial of justice took place.
 They can not overlook the broad facts in the history of this
controversy. All three branches of the Government conspired to ruin
his enterprise. The Executive Department issued proclamations for
which no warrant could be found in the Constitution and laws of the
country.
 The Volksraad enacted legislation which, on its face, does violence to
fundamental principles of justice recognized in every enlightened
community.
 The judiciary, at first recalcitrant, was at length reduced to submission
and brought into line with a determined policy of the Executive to
reach the desired result regardless of Constitutional guarantees and
inhibitions.
 And in the end. growing out of this very transaction, a system was
created under which all property rights became so manifestly insecure
as to challenge intervention by the British Government in the interest
of elementary justice for all concerned, and to lead finally to the
disappearance of the State itself.
 We are not impressed by the argument founded upon the alleged
neglect to exhaust legal remedies by taking out a new summons.
 A claimant in a foreign State is not required to exhaust justice in such
State when there is no justice to exhaust
nd
2 issue:
 Liability never passed to or was assumed by the British Government.
Neither in the terms of peace granted at the time of the surrender of
the Boer Forces nor in the Proclamation of Annexation can there be
found any provision referring to the assumption of liabilities of this
nature.
 It should be borne in mind that this was simply a pending claim for
damages against certain officials and had never become a liquidated
debt of the former State.
50 | P a g e
 Nor is there, properly speaking, any question of State succession here
involved.
 British authorities did more than leave this matter exactly where it
stood when annexation took place. They did not redress the wrong
which had been committed or did they place any obstacles in Brown's
path; they took no action one way or the other.
 No British official nor any British court undertook to deny Brown
justice or to perpetuate the wrong. The Attorney General of the
Colony, in his opinion, declared that the courts were still open to the
claimant.
The contention of the American Agent amounts to an assertion that a
succeeding State acquiring a territory by conquest without any
undertaking to assume such liabilities is bound to take affirmative steps to
right the wrongs done by the former State. We cannot indorse this
doctrine
 The point as to suzerainty is likewise not well taken. It is not
necessary to trace the vicissitudes of the South African State in its
relation to the British Crown
 Under the 1884 Convention it is plain that Great Britain as
suzerain, reserved only a qualified control over the relations of
the South African Republic with foreign powers
 If there had been no South African war, we hold that the United
States Government would have been obliged to take up Brown's
claim with the Government of the Republic and that there would
have been no ground for bringing it to the attention of Great
Britain.
 The relation of suzerain did not operate to render Great Britain
liable for the acts complained of
_______________________________________________________
Rights and Duties of States
FUNDAMENTAL RIGHTS OF STATES
There are generally five (5) fundamental rights of States:
1. right of existence and self-preservation
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
2. right of sovereignty and independence
3. right of equality
4. right of property and jurisdiction
5. right of diplomatic intercourse
There are three (3) theories on the sources of these rights:
1. Naturalist View
- These rights are derived from the law of nature.
- This view believes that every State, by the very fact that it is a
State, is endowed with certain inherent and fundamental rights.
2. Positivist View
- These rights are derived from membership in the Family of
Nations.
- For those members of the original family of nations, it is based on
historical grounds, and for others upon international recognition
or agreement. (Wilson)
3. Eclectic View
- The source of these rights depend on what right it is.
- For instance, the right to exist is not dependent on whether other
States have recognized it. On the other hand, the right of
diplomatic intercourse cannot be forced upon a state who does
not desire to have any diplomatic agreement with other States.
RIGHT OF EXISTENCE AND SELF-PRESERVATION
- The right of existent and self-preservation is the right of a State to
exist and take such measures as a necessary to preserve itself.
- The extent of measures that may be taken –
o should not violate the Law of Nations; and
o is limited by the necessity that provides the case and the
occasion.
- The necessity must be present, actual and should leave no choice
of means.
51 | P a g e
o If any means are left (e.g. appeal to the authorities of the
other State, other means), no State is justified in violating
the territorial integrity of another State.
- The State under imminent attack is given the first instance of
some measure of latitude in determining whether the
circumstances justify the invocation of this right. However, this
subjective determination is not conclusive.
- Under the UN Charter, the right of self-defense may be exercised
only as long as the Security Council has not taken necessary
measures to maintain international peace and security.
The attribute of independence
A. Independence defined
It is the freedom of a State to conduct its foreign affairs, free from outside
control. It is considered as the external manifestation of sovereignty.
B. Powers of a State by virtue of its independence (unless restricted by
treaty obligations):
1. manage its international affairs according to its discretion
2. recognize foreign states and governments
3. enter into alliances and conclude treaties
4. send and receive diplomatic envoys
5. acquire and cede territory
6. make war and peace
C. Powers of a sate by virtue of its internal sovereignty:
1. adopt a constitution and establish its government
2. arrange its administration as it sees fit
3. enact such aws as it believes necessary
4. formulate economic and commercial policies as it may deem
advisable
5. build its own army and navy
6. regulate the affairs of its own citizens and subjects as may
be convenient for the body politic
D. Restrictions on Independence
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
1. mere fact of membership in the international community
and the growing demands of interdependence
2. acceptance of restraints on freedom by entering into
treaties with other States
3. membership in international organizations i.e. the United
Nations
Intervention
A. Intervention defined
a. In a broad sense
i. Any interference by one State in the affairs of
another
ii. May be military or non-military
b. As a concept of international law
i. Dictatorial interference by a State in the internal
affairs of another State or in the relations between
other States
ii. Must be forcible or backed by threat of force
iii. No intervention in mere tender of advice
B. Kinds of Intervention
a. As to Number of States
i. Individual- only one State interferes in the affairs of
another (ex. Intervention of the US in the Spanish
Cuban affairs in 1898
ii. Collective- interference is committed by a group of
States (ex. Intervention of the Concert of Europe)
b. As to grounds
i. To preserve the balance of power in a certain region
ii. As a measure of self-defense
iii. To maintain conditions necessary for the existence
and establishment of international peace and order
iv. To obtain redress of grievance for and in behalf of a
national allegedly denied justice by the other State
v. In defense of national honor
vi. At the request of a party to a civil war or revolution
vii. To carry out treaty stipulations
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viii. For the collection of contract debts, public or private
1. Drago Doctrine- precluded any intervention
for the purpose of collecting contract debts
nd
2. 2 Hague Convention of 1907 (Porter
Convention)- parties agreednot to have
recourse to armed force for the recovery of
contracts debts claimed from the
government of one country by the
government of another, except:
a. When the debtor State refuses or
neglects to reply to an offer of
arbitration, or
b. After accepting offer, prevents any
compromise from being agreed on,
or
c. After arbitration, fails to submit to
its award
C. Intervention in Contemporary International Law
a. It is now recognized that the right of each State to determine
its destiny and formulate its policy, free from the coercion of
other States, is vital not only for the proper development of
international law but also to preserve international peace and
order.
b. Therefore, as a GENERAL RULE, intervention is not sanctioned
by law
i. It runs counter to the first purpose of the United
Nations
ii. It would constitute an infringement of two governing
principles of the UN and its Members which are: to
settle international disputes by peaceful means and
to refrain from the threat or use of force against the
territorial integrity or political independence of any
State
iii. Art. 2, Par. 7 of the UN Charter precludes the UN
from intervening in domestic matters of States
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
UNLESS it is necessary to remove threats to the
peace, breaches of the peace, and acts of aggression
iv. Under contemporary international law, armed
intervention is restricted to necessities of individual
or collective self-defense, explicit treaty permissions
or UN authorization
1. Individual or collective self-defense: Art. 51
of the Charter reserves the inherent right of
a state to “individual or collective self-
defense if an armed attack occurs” against
such State until the Security Council has
taken measures necessary to maintain
international peace and security. Collective
intervention is allowed if it constitutes
collective self-defense.
2. Treaty permissions: a State may call upon
another State, in accordance with the
provisions of a treaty between them, to
intervene with armed force within it
territory in order to assist it in maintaining
domestic order or in defending it against
external aggression; only a genuine
government can ask for help
3. Collective action under the Charter: under
Chapter II of the Charter, the UN may take
collective measures against a State,
whether or not it is a member, provided
that:
a. Security Council has “determined
the existence” of threat
b. A State failed to comply with a
judgment of the International
Court of Justice
c. Recommended by the Security
council or the General Assembly
Equality of States
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a. Equality here means “legal equality” and means that all
States in law are equal; all States are equally entitled to have
whatever rights they have upheld by the law.
b. The doctrine of State equality is a logical corollary to the
concepts of sovereignty and independence.
c. Important consequences of the doctrine of equality:
i. That whenever a question arises which has to be
settled by consent, every State has a right to
vote, but unless it has agreed otherwise, to one
vote only
ii. That legally the vote of the weakest and
smallest States has as much weight as the vote
of the largest and most powerful
1. BUT the five great powers- China,
France, the United Kingdom, Soviet
Union and United States- are given
permanent seats in the Security Council
while the rest of the members are
entitled by election to 10 non-
permanent seats
iii. That no State can claim jurisdiction over
another, in accordance with the maxim, par in
parem non habet imperium
1. Necessarily implies that States cannot
be sued in the courts of other states
unless the waive this by submitting
voluntarily to the jurisdiction of the
court.
2. However, States may sue individuals
and business associations in the courts
of other states; this allows the setting
up of a counterclaim against the suing
State
iv. That courts of one State do not, as a rule,
question the validity or legality of the official
acts of another State, in so far as those acts
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
purport to take effect within the sphere of the
latter State’s own jurisdiction
1. Generally, a State cannot question the
legality of the acts of other States, but
a State can also refuse to apply those
acts or decrees in concrete cases
before its courts where any
fundamental exception to the
application of foreign law is involved
Additional Readings
Cuban Quarantine
Timeline
• May 1962 Nikita Khrushchev thought of the idea of putting
intermediate-range nuclear missiles in Cuba to counter an
emerging lead of the US in developing and deploying strategic
missiles.
• Khrushchev obtained Fidel Castro’s approval and the
Soviet union started to secretly build a missile installation
in Cuba
 July 1962 evidence of increased Soviet military assistance to Cuba
accumulated. The presence of air defense missiles was confirmed
from pictures taken on August 29
 October 16 1962, an American U-2 spy plane secretly
photographed nuclear missile sites being built by the Soviet Union
on the island of Cuba.
 October 20, 1962 the Strategic Air Command (SAC) began
dispersing its bombers and placed all aircraft on an upgraded
alert--ready to take off, fully equipped, within 15 minutes.
54 | P a g e
interceptor units were either on patrol missions or on a 5-to-15-
minute alert.
o This massive movement of ships, aircraft, and troops,
together with their weapons and equipment, was carried
out with unprecedented speed.
 October 22, 1962 President Kennedy, in a televised address,
announced the discovery of the installations and proclaimed that
any nuclear missile attack from Cuba would be regarded as an
attack by the Soviet Union and would be responded to
accordingly. He said “"the greatest danger of all would be to do
nothing."”
o Kennedy decided to place a naval blockade, or a ring of
ships, around Cuba. The aim of this "quarantine," as he
called it, was to prevent the Soviets from bringing in
more military supplies. He demanded the removal of the
missiles already there and the destruction of the sites
o leaders of both superpowers recognized the devastating
possibility of a nuclear war and publicly agreed to a deal
in which the Soviets would dismantle the weapon sites in
exchange for a pledge from the United States not to
invade Cuba. In a separate deal, which remained secret
for more than twenty-five years, the United States also
agreed to remove its nuclear missiles from Turkey.
Although the Soviets removed their missiles from Cuba,
they escalated the building of their military arsenal; the
missile crisis was over, the arms race was not
o leaders of both superpowers recognized the devastating
possibility of a nuclear war and publicly agreed to a deal
in which the Soviets would dismantle the weapon sites in
exchange for a pledge from the United States not to
invade Cuba. In a separate deal, which remained secret
for more than twenty-five years, the United States also
agreed to remove its nuclear missiles from Turkey.
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
Although the Soviets removed their missiles from Cuba,
they escalated the building of their military arsenal; the
missile crisis was over, the arms race was not
 October 22, 1962 The forces alerted were ready for their
assignment when the President addressed the Nation on the
evening
 October 23 Low altitude reconnaissance flights started over Cuba
 October 24 When the Quarantine Proclamation became effective
at 10:00 a.m. (EDT), air and surface units of the Atlantic Fleet
were at their designated stations. Whether or not other units
would be called upon to carry out their operational missions
remained an unanswered question throughout this week
of maximum danger
 October 28, 1962 end of the Cuban crisis with the agreement
between Kennedy and Khrushchev
o break in the crisis came on Sunday; when the Soviet
Government finally agreed to dismantle its offensive
weapons in Cuba and return them to the Soviet Union
subject to United Nations verification. Khrushchev
expressed his trust that the United States would not
invade Cuba. Quarantine measures and aerial
surveillance remained in effect. They were suspended
temporarily only for 2 days, October 30 and 31, while the
Secretary General of the United Nations was trying
unsuccessfully to reach an agreement with the Cuban
Prime Minister on verifying the removal of offensive
weapons. While decreased activity at the missile sites
was noted on October 29, it was not until November 2
that it could be announced that the dismantling of the
weapon systems had definitely been started. Aerial
reconnaissance provided detailed information not only
on the progress made in this work but also on the
transfer of the missile systems to the Cuban ports and
55 | P a g e
the loading of 42 missiles and
their support equipment on eight Soviet ships.
 Further negotiations were held to implement the October 28
agreement, including a Soviet request to clarify the exact form
and conditions of United States assurances not to invade Cuba. By
January 1963 it was clear that no formal agreement would result.
Collective Self Defense
Article 51 of the United Nations Charter (Vandenberg Resolution)
Nothing in the present Charter shall impair the inherent right of individual
or collective self-defense if an armed attack occurs against a Member of
the United Nations, until the Security Council has taken the measures
necessary to maintain international peace and security. Measures taken by
Members in the exercise of this right of self-defense shall be immediately
reported to the Security Council and shall not in any way affect the
authority and responsibility of the Security Council under the present
Charter to take at any time such action as it deems necessary in order to
maintain or restore international peace and security.
Armed Attack
This includes not merely action by regular armed forces across an
international border, but also "the sending by or on behalf of a State of
armed bands, groups, irregulars or mercenaries, which carry out acts of
armed force against another State of such gravity as to amount to. . ." an
actual armed attack conducted by regular forces, "or its substantial
involvement therein.
Illustrations
1. NATO
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012

“NATO’s fundamental role and enduring purpose is to safeguard the The US had challenged the international order by seeking to justify its
freedom and security of its member countries by political and military military assistance to South Vietnam on controversial legal grounds.
means.”
Background
 Article 5 – Washington Treaty
An armed attack against one or more members considered as an • Geneva Conference temporary partition
attack against all • South rejects Geneva Accords
 Article 51 UN Charter • Independent State of South Vietnam
The Right to Self-Defense • “Denounce the Communists” Campaign
 Foreign Ministers at Reykjavik, May 2002 • Insurgency in South, No North Interference
No geographic limitation • 1963 Coup
Operate when and where necessary to fight terrorism • South Vietnam’s Political Instability
• Fall of Saigon
2. Nicaragua vs. US _____________________________________________________________

BACKGROUND: Change of government (Sadinistas’ Overthrow of the Territory of States

Somoza Regime) and US Support of Contras
CASE: Action against US with the ICJ (Mining, Attacking, Pressuring,  What is it??
Supporting) o There can be no State without territory
DEFENSE: Collective Self-Defense to Support El Salvador o Territory consists of the portion of the surface of the globe on
THEORY: Roosevelt Corollary, Treaty of Chapultepec, Vandenberg which that State settles and over which it has supreme
Resolution, OAS, Rio Treaty authority
 Article 1 of the 1987 Constitution
Findings and Judgment: o The national territory comprises the Philippine archipelago,
• “Unlawful Use of Force” with all the islands and waters embraced therein, and all
• Collective Self-Defense non-justifiable other territories over which the Philippines has sovereignty or
• Within the Court’s jurisdiction jurisdiction, consisting of its terrestrial, fluvial and aerial
• Breach of Customary Law domains, including its territorial sea, the seabed, the subsoil,
• Non-compliance the insular shelves, and other submarine areas. The waters
• El Salvador never requested assistance around, between, and connecting the islands of the
archipelago, regardless of their breadth and dimensions, form
Crisis in South Vietnam part of the internal waters of the Philippines.
 THUS:
Freedom to choose own government vs. Opposition by Defensive o Territory as an element of a state means an area over which a
Assistance state has effective control
o CONTROL over territory is of the essence of a state
o Exercise of sovereignty

56 | P a g e
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012

 Territory includes: Land, Maritime Areas, Airspace And Outerspace o Example: Treaty of Paris, Hong Kong, Louisiana Purchase,
 Modes of acquisition: Florida Purchase, Alaska Purchase and purchase of Virgin
o Discovery and occupation Islands
o Prescription  Accretion and Avulsion
o Cession o Sovereignty by operation of nature
o Conquest o Accretion: slow and gradual deposit of soil by alluvium so as
o Subjugation to modify a river channel imperceptively
o Accretion o Avulsion: sudden and violent shift in the channel …like a
 Discovery volcano
o Oldest method of acquiring title  Conquest and Annexation
th
o Up to the 18 century , discovery alone was enough to o In earlier days, the taking of possession of a territory through
establish legal title armed force
o But now… must be followed by EFFECTIVE OCCUPATION o BUT today, proscribed by international law.
o Related to principle of continuity : If a state has made o 1970 Declaration of Principles of International Law
settlement, it has a right to assume sovereignty over all Concerning Friendly Relations and Cooperation among States:
adjacent vacant territory, which is necessary to the integrity “The territory of a State shall not be the object of acquisition
and security of settlement by another State resulting from the threat or use or force. No
 Occupation territorial acquisition resulting from the use or threat of force
o Acquisition of terra nullius, territory which prior to shall be recognized as legal.”
occupation belonged to no state or which may have been  Airspace
abandoned by a prior occupant o The outbreak of WWI brough about the realization that the
o Discovery of terra nullius, not enough to establish use of the air had security implications.
sovereignty. It must be accompanied by effective control (Las o Out of this realization: the air above as an extension of the
Palmas case) territory below.
 Prescription o Each state has exclusive jurisdiction over the air space above
o Roman law concept of usucapio  long continued use of real its terrritory
property ripened into ownership o Chicago Convention on International Civil Aviation (1944)
o Uninterrupted and uncontested possession “going beyond  Outerspace
memory” o 1967 Treaty on the exploration and Use of Outer Space
o 2 elements: continuous and undisturbed possession and lapse  Aerial Domain
of a period of time - Includes:
 Cession o Airspace over its domain, extending over its territorial
o May be voulntary or involuntary and maritime areas
o Voluntary cession of a territory is the transfer of sovereignty - Theories on Juridical Nature of Air Space: (Oppenheim)
over a territory by the owner State to another State o Air is entirely free and incapable of appropriation
o Normally made through a treaty o Upon analogy of the maritime belt there is a lower zone
of territorial air space and a higher unlimited zone of free

57 | P a g e
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
air space to an unlimited height is entirely within the
sovereignty of the subajacent State (cujus est solum ejus
est usque ad coelum et ad injeros)
o That the air space is within the sovereignty of the
subajacent State subject to a servitude of innocent
passage for foreign civil, but not military aircraft
- Efforts to facilitate Airspace:
o Convention of Paris on Air Navigation of 1919 and the
Chicago Civil Aviation Conference of 1944
 Provides that “every power has complete and
exclusive sovereignty over the air space above
its territory, including adjacent territorial waters
 PROBLEM: failed to include regulation on
international airline services thereby creating a
very important exception to the right of
innocent passage which the Convention
purported to allow
o Convention on International Civil Aviation of 1944
 Provided the five air freedoms—freedom to ly
accorss the foreign territory without landing, to
land for non traffic purposes, to put down traffic
originating in the State of the aircraft, to embark
traffic destined for that State , and to embark
traffic destine for, or to put down traffic coming
from a third contracting State (NOTE: Not that
much achieved)
- Standing General Principles:
o Each State has sovereignty and jurisdiction over the air
space directly above its territory, including its territorial
waters
o Each State has complete discretion as to the admission or
non-admission of any aircraft to the airspace under its
sovereignty
o Airspace over the high seas and over other parts of the
earth’s surface not subject to any State’s Jurisdiction is
free to the aircraft of all States
CASE: The Island of Palmas Case
58 | P a g e
FACTS: There was an agreement between USA and Netherlands to settle
the dispute respecting the sovereignty over the Island of Palmas.The island
lies about halfway between Cape San Agustin in Mindanao and most
northerly island of Nanusa group then of the Netherlands East Indies.
USA as successor to the rights of Spain over the Philippines based its title
on discovery and principle of contiguity. Netherlands on the other hand
claimed to have possessed it since 1677. Sovereignty in the relations
between States signifies independence. Territorial sovereignty is a
situation recognized and delimited in space, either by frontiers or by
outward signs. Titles of acquisition of territorial sovereignty in
international law are either based on an act of effective apprehension or
cession. Territorial sovereignty involves exclusive right to display the
activities of the State. This right has a corollary obligation of protecting its
people.
ISSUE: Who has a better right over the said Island?
HOLDING: Netherlands! There is no evidence which would establish any
act of display of sovereignty over the island by Spain or another power.
The Netherlands title of sovereignty, acquired by continuous and peaceful
display of State authority holds good.
CASE: The Clipperton Island Case
FACTS: To settle the dispute concerning the ownership of the Clipperton
Island, France and Mexico concluded an arbitration agreement. France
proclaimed sovereignty over the island as early as 1858 but until 1887
France exercised no authority over it. Sometime in 1897, Mexico laid claim
to the island, alleging that it had owned it before France proclaimed
sovereignty. The island has no stable population and no administration
was organized there. The arbitrator found that the island was territorium
nullius in 1858 and the only question was whether France proceeded to an
effective occupation as required by law.
ISSUE: Who has a better right over the said land?
HOLDING: France! It is beyond doubt that by immemorial usage
having the force of law besides the animus occupandi, the actual
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012

and not the nominal taking of possession is necessary condition of o The territorial jurisdiction of a State is based on the right
occupation. By virtue of the fact that it was completely of domain.
uninhabited, there is occupation when the State actually took o The domain includes ordinarily only such expanse of
possession of it. territory over which it possesses and exercise the full
rights of sovereignty.
_____________________________________________________________ o Exceptions to the full rights of sovereignty:
 a) Joint Jurisdiction:
Jurisdiction of States Also called as “condominium” where a portion
of territory has been exercised by two or more
States.
 Concept of Jurisdiction:
The establishment of a condominium is
o Defined: Right of the State to exercise authority over its
ordinarily by agreement among the States
boundaries, subject to certain exceptions and, subject to the
exercising such jurisdiction.
rights of other States, over the property and nationals of the
It implies a combined government but the
state beyond its boundaries.\
authority may be delegated to an “official” who
o Characteristics:
is to represent the States concerned in all
 Absolute
matters.
 Exclusive within and throughout the domain of
 b) Leases:
the state
A diplomatic device rendering a permanent loss
 Conditioned by the rights of other States over
of territory more palatable to the dispossessed
certain persons and things which may be
State by avoiding any mention of annexation
founded within the boundaries of the former.
and holding out the hope of eventual recovery.
o Basis of State Authority
The term of the leases usually specify the
 inherent right of the State to exercise sovereign
powers to be exercised by the lessee, and by
power
implication other powers remain in the lessor
o Basis of Jurisdiction
State.
 Right of domain
Sovereignty may be retained by the lessor State,
 Property right
even though complete jurisdiction may be
 Political relationship
granted to the lessee.
o Expansion over Self Restraint: This occurs when the
 Colonial protectorates:
appetite to increase territorial dominion outweigh the
The word “protectorate” describes a relation
compliance to the obligation of self restraint. This results
between a State and a native community not
to concurrent and overlapping jurisdiction over the same
sufficiently civilized to be regarded as a State,
persons or matter.
and not a relation of dependence between two
o Classification:
States.
 Territorial
It is established by agreement more or less
 Personal
voluntary with the native chiefs, and they
 Territorial Jurisdiction

59 | P a g e
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
generally lead to a full annexation when the
protecting State is ready for that State.
 Spheres of Influence:
A State (without establishing its jurisdiction or
undertaking any responsibility for securing good
government) signifies that it regards certain
territory as closed to the ambitions of any other
power, probably because it intends some day to
convert into a colony or protectorate or because
it regards it as strategically necessary to the
security of part of its existing dominions.
A State has no rights over the territory of the
other State; It is a political and not a legal act.
 Servitudes:
Restricitions on the free exercise of the
jurisdiction of a State in the way of obligation to
allow a foreign State to do a thing, or in the way
of obligation to a foreign State to refrain from
doing something.
Treaty of 1783:
The right of the people of the United
States to fish upon the Grand Banks
and in the Gulf of St. Lawrence, on the
coast of Newfoundland and other
coasts, bays, and creeks of British
territorial waters.
 Jurisdiction on land: State jurisdiction over its land area, over all
persons and property within it, is exclusive and absolute as a
general principle.
 Criminal Jurisdiction
o Things to Remember:
 International Law has not developed any set of
rules defining the scope, extent and manner of
the exercise of jurisdiction.
 It’s main focus is Concentrated on defining the
limitations of State jurisdiction.
60 | P a g e
 A State defining it’s jurisdiction must give
consideration to the interests of the Int’l
community as a whole.
 Within its own territorial limits, the State’s
Jurisdiction is supreme.
 Extraterritorial Jurisdiction – not usually claimed
by States and is only permissible in certain
circumstances.
o Bases of Jurisdiction
 Territoriality principle - determined by reference
to the place where the crime is committed.
Exceptions:
Continuing offenses
Acts prejudicial to the National Security
or Vital Interests of the State
Universal Crimes
Offenses covered by special
agreements
 Nationality principle - if offender is a national of
the forum state (Art. 15, Civil Code, tax law); a
state has jurisdiction over its nationals
anywhere in the world.
 Protective personality principle - state exercises
jurisdiction over acts of the alien even of
committed abroad, if national interest is injured
 Universality principle - jurisdiction is established
if the accused is in the custody of the forum
state (piracy, hijacking, genocide); state has
jurisdiction over offenses considered as
universal crimes, regardless of offender or situs
CASE: Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964)
A US sugar distributor, Farr Whitlock and Co. contracted with a US-owned
sugar producer in Cuba, Compania Azucarera Vertientes-Camaguay de
Cuba (CAV), to import sugar into the US.
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
As part of a trade dispute, the government of Cuba nationalized their sugar
industry and seized the assets of several US-owned sugar producers,
including CAV.
CAV still made the delivery, but Farr didn't send the payment to the Cuban
government, instead they paid CAV's legal representative in the US,
Sabbatino.
Banco National de Cuba (BNC) sued Sabbatino in US Court to get them to
hand over the money for the sugar.
BNC argued that the Cuban nationalization was an official Act of State and
should be honored by the US.
The Act of State Doctrine says that the propriety of decisions of
other countries relating to their internal affairs would not be
questioned in US courts.
Sabbatino argued that the Act of State Doctrine was inappropriate
because:
The act in question was a violation of international law;
The doctrine should not be applied unless the Executive branch
asks the court to do so;
Cuba had brought the suit as a plaintiff and had given up its
sovereign immunity.
The Trial Court found for Sabbatino. BNC appealed. The Appellate Court
affirmed. BNC appealed. The SC Reversed
The US Supreme Court reversed.
• The US Supreme Court found that the policy of US Federal courts
would be to honor the Act of State Doctrine.
– The Court found that the Cuban seizure did not violate
international law, because there was no clear international
opinion that a seizure of land or property in a country by the
government of that country was illegal.
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• The Court found that there was no need for the
Executive branch to ask the courts to apply the Act of
State Doctrine.
• The Court found that it should be assumed to apply
because if even a single court made a mistake and
failed to apply it, it could mess up US relations with
other countries.
• The Court found that the Act of State Doctrine still
applied, even thought the State was a plaintiff.
– Similar to the idea of sovereign immunity
where States can sue, but cannot be sued.
In response to this decision, Congress passed the Second
Hickenlooper Amendment (aka the Sabbatino Amendment) that
revoked the presumption in favor of the validity of the Act of
State Doctrine.
CASE: The Schooner Exchange v. McFaddon, 11 U.S. 116 (1812)
McFaddon and Greetham owned a schooner named 'Exchange'. While
sailing in international waters, the ship was commandeered by the French
Navy and turned into a French warcraft.
• The French Navy did not bother to ask McFaddon and Greetham's
permission or pay them any money for their ship.
Later, the Exchange (now renamed the Balaou and flying a French flag)
docked in Philadelphia. McFaddon and Greetham sued in US court for
return of their ship.
The Trial Court found for the French, McFaddon and Greetham
appealed.The Appellate Court reversed. The French appealed.
The US Supreme Court reversed and found that US courts did not have
jurisdiction over foreign-flagged vessels in US ports.
• The US Supreme Court found that US courts had no jurisdiction over
foreign governments because of sovereign immunity.
– The Court found that a foreign warship is covered by
sovereign immunity.
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
• The Court found that a warship "constitutes a part of the military force
of her nation; acts under the immediate and direct command of the
sovereign; is employed by him in national objects. He has many and
powerful motives for preventing those objects from being defeated by
the interference of a foreign state. Such interference cannot take
place without affecting his power and his dignity. The implied license
therefore under which such vessel enters a friendly port, may
reasonably be construed, and it seems to the Court, ought to be
construed, as containing an exemption from the jurisdiction of the
sovereign, within whose territory she claims the rites of hospitality."
– The Court limited this decision to warships (although that was
later extended to all ships and property owned by foreign
governments). However, the Court noted that sovereign
immunity does not apply to foreign ships owned by private
foreign citizens.
McFaddon and Greetham weren't totally without options. They
could have gone to France and tried suing there.
– But it would be difficult to win in a French court.
One unstated factor for the Court's decision was that at the time
this case was decided, the US was at war (War of 1812), and the
French was an ally of the US.
The case is often cited as representative of the traditional theory
(or classical view) of sovereign immunity.
– As opposed to the more modern restrictive view of sovereign
immunity which argues that sovereign immunity only applies
to claims based on public acts, not commercial or private
acts.
CASE: The Corfu Channel Case (United Kingdom v. Albania), 1949 I.C.J. 4
(Apr. 9)
During the Greek Civil War, UK ships were off the coast gathering
intelligence. The ships passed through the Corfu Channel, which separated
the Greek Island of Corfu from the Albanian mainland.
• The Corfu Channel was narrow, and ships that were in it were closer
than 12 miles from the Albanian coast.
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• Historically, the waters less than 12 miles from a
country's coast were considered to be a territorial
water and under the sovereign control of the coastal
country.
Albania fired on the UK ships. The UK protested the action.
– UK claimed their ships were involved in an innocent passage.
– Albania claimed that sending warships through the channel
was meant to be intimidating and thus was not 'innocent'.
• In order to count as an innocent passage under
customary international law, the passage must not
be intended to be threatening.
– Albania argued that there is no reason to use the Corfu
Channel just to get from Point A to Point B. It isn't convenient
for that. The only possible reason to be there is to threaten
Albania.
Albania mined the channel. The UK sent minesweepers and de-
mined the channel. The UN Security Council asked both parties to
take the dispute to the International Court of Justice for
adjudication.
The ICJ found that ships can use narrow channels for innocent
passage, even if that meant they had to enter the 12 mile
territorial waters of a coastal country.
– The ICJ found that the UK did have a right to traverse the
Channel
– However, the ICJ reminded the UK that they could only
use the Channel for innocent passage.
• The Court wasn't ready to find that the UK was
sending ships into the Channel to threaten
Albania, but noted that there was evidence
that's what they were doing.
– The ICJ found that since the Channel could be used for
innocent passage, Albania could not mine it without
giving notice.
• The Court also found that the UK couldn't sweep
the Channel for mines, since minesweeping was
outside of the definition of innocent passage.
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012

– Wartime: belligerents can expel all enemies residing or

This case was decided based on customary international law, as it temporarily staying in a State.
occurred prior to the Convention on the Law of the Sea (1833
U.N.T.S. 3 (1982)), which would now be controlling. – Even in time of peace
– See Articles 17-21 of the Convention for the rules of
innocent passage. • Aliens constituting a menace to the security of
– See Article 39 of the Convention for the rules of transit the State.
passage
_____________________________________________________________ • Illegal entry; overstaying

State Imputability/Responsibility • Violated any limitation prescribed for his

admission
A. Admission and Exclusion of Aliens
1. Admitting Aliens • ONLY when it is detrimental to the welfare of
 No State is under obligation to admit aliens in the absence of a the State
treaty stipulation imposing that duty.
 The State may avoid liability to aliens by REFUSING THEIR
– flows from the concept of sovereignty ADMISSION, but this is not sound policy. WHY?
– Provoke RETALIATION
– it is impracticable, however, for a State to isolate herself – Ultimately ISOLATE its nationals from the rest of the
from the rest of the world. international community.
 The State can impose conditions in admitting aliens
 It is also NOT ADVISABLE if the entry of aliens were to be allowed
– Specify those persons who can’t enter the State (for local indiscriminately. WHY?
security and public welfare) – Because they might pose a danger to the welfare and
security of the admitting country.
– Quota system  WHAT CAN BE DONE instead?
– Regulate the immigration and stay of aliens and to
– Restricting immigration
provide for their deportation whenever warranted.
2. Exclusion of Aliens – Extradition (in the case of alien fugitives).
 Basically, the principle is “if a State can refuse to admit, it must  DEPORTATION
also possess the right to expel.” – The REMOVAL of an alien out of the country, simply
 When can the State expel? because his presence is deemed INCONSISTENT with the
PUBLIC WELFARE, and without any punishment being

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Public International Law Notes
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imposed or contemplated, either under the laws of the
country out of which he is sent, or under those of the
country to which he is taken.
 EXCLUSION
– The DENIAL of ENTRY to an alien
 EXTRADITION
– The surrender of a person by one state to another state
where he is wanted for prosecution, or if already
convicted, for punishment.
B. Right of Asylum
 Asylum
– Seeking refuge in States other than their own, in order to
escape persecution
– It is the competence of every State, inferred from its
territorial supremacy, to allow a persecuted alien to
enter, and to remain on, its territory, under its
protection and thereby grant asylum to him
– UN General Assembly 1946
• This right should not interfere with the
surrender and punishment of war criminals,
quislings and traitors in conformity with
international arrangements or disagreements
– UN General Assembly 1948
• This right may not be invoked in cases arising
from non-political crimes or for acts contrary to
the purpose and principles of UN.
 2 Species of Asylum
– TERRITORIAL ASYLUM: refuge within the territory of the
sheltering state, the protection of which a refugee
obtains by escaping to, or remaining upon, the territory
of a State other than that the State that “wants” him,
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until the protection is terminated by his extradition
(McNair, Law on Treaties).
– EXTERRITORIAL ASYLUM: asylum in what are considered
the “extensions” of a State’s territory. This type includes:
a) asylum in foreign public ships
b) diplomatic asylum: the protection afforded by
the State to the refugee by granting him an asylum in or
upon its diplomatic buildings within the territory of the
State that wants him.
 Duration of Immunity and Privileges
– From the moment the envoy enters the territory of the
receiving State and shall cease when he leaves the
country.
– With respect to official acts, immunity shall continue
indefinitely.
C. Rights of Aliens: Position after Reception
 Once received, aliens fall within the territorial supremacy of the
receiving State
 Domiciled Aliens and Transient Aliens
– State of residence can subject domiciled aliens to
obligations not imposed on transient aliens
• Obey local laws
• Pay taxes
• Perform police and militia service
• Submit to special measures
• “Qualified or temporary allegiance”
 However, aliens cannot be compelled to serve the armed forces of
the State of his domicile without consent from his own State
 General Rule: Aliens must accept the institutions of that State
where he is in subject to the condition that those institutions
must conform to a certain degree of international standard.
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
 Are entitled to the standard of treatment based on international
law
– Objective and just treatment
– Ordinary Standards of civilization (US Mexican Claims
Commission)
 Are granted certain rights based on the following policies:
– Reciprocity
– Most-favored nation treatment
– National Treatment
 They don’t possess the same rights as the citizens of the State.
– No political rights
– Can’t vote nor hold public office
– Can’t own lands
D. International Standard
 The so-called International Standard
– There is no hard and fast rule in determining whether or
not the institution and practices of a State conforms to
the standard
– Described in its broad sense – the standard of the
reasonable State
• Reasonable based on notions accepted by
modern civilization
 The Neer case mentioned factors that would constitute
international delinquency
– “… should amount to an outrage, to bad faith, to willful
neglect of duty, or to an insufficiency of governmental
action so far short of international standards that every
reasonable and impartial man would readily recognize.”
 Other examples of acts falling below the international standard
– Execution of an alien without trial;
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– Unlawful arrest, imprisonment or detention, and unduly
harsh, oppressive or unjust treatment;
– Indiscriminate killing of aliens
 These acts may be made basis in enforcing international claims by
the offended alien
 An alien is not in a better position than the citizens of the State,
BUT where the law affecting such alien is flagrantly oppressive, or
openly discriminatory against the alien, or administered in an
unjust manner, or the decision is flagrantly unjust, there is a
violation of the international standard
 NOT a DEFENSE – that the nationals of such State are given the
same treatment
 This gives rise to a claim, by the State of the alien on his behalf,
against the offending State
E. Doctrine of State Responsibility
 Definition of State Responsibility
– “A state is under the obligation to make reparation to
another State for the failure to fulfill its primary
obligation to afford, in accordance with international
law, the proper protection due to an alien who is a
national of the latter State.”
 Generally, a State is indirectly responsible for acts of violence
occurring within its territory
 However, the State cannot be regarded as an absolute insurer of
the morality and behavior of all persons within its jurisdiction
 Elements in order for State Responsibility to arise:
– An act or omission in violation of international law;
– Imputable to the State;
– Resulting to injury to the claimant State, either directly or
indirectly by reason of damages sustained by a national
of the same;
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
– Individual concerned must have exhausted local
remedies.
 CONS of the Doctrine of State Responsibility:
– The doctrine has led to abuses by powerful countries
preying on weaker ones.
– This was fueled by the desire of some countries to
• Assert political influence;
• Grab a share in the markets;
• For sources of raw materials
 PROS of the Doctrine of State Responsibility:
– It possesses a valuable function – “… to provide…
adequate protection for the stranger, to the end that
travel, trade and intercourse may be facilitated.”
F. Acts or Omissions Imputable to the State
1. Acts of private individuals
 GENERAL RULE: State cannot be held directly or immediately
responsible
 EXCEPTIONS: Manifestations of the actual or implied complicity
of the government in the act, before or after:
– Directly ratifying or approving it
– By an implied, tacit or constructive approval in the
negligent failure to prevent the injury
– To investigate the case
– To punish the guilty individual
– To enable the victim to pursue his civil remedies against
the offender
 State is not responsible unless it displayed, in the conduct of its
organ or its officials, patent or manifest negligence in taking
measures which are normally taken in the particular
circumstances to prevent or to punish the injurious acts.
 Inquiries needed to ask:
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– Whether the State ought to have prevented the
injurious act.
• Where the injury would not have occurred if
the State, through its officer, had been
reasonably diligent
• The claimant has the burden of proving the
negligence of the government
– Whether the State has taken the remedial steps which
the law requires it.
• As a result of its failure to use diligence in
bringing the offender to justice and punish him,
the State becomes responsible internationally
for the damage suffered by the alien
• Denial of justice - broad sense, including all
acts or omissions capable of giving rise to
international responsibility on the part of the
State
 Mob Violence
– If the authorities have used due diligence to prevent and
repress the riot and have not denied justice to the alien
injured, the State has no responsibility
– Unless it us under obligation to render special
protection, either by virtue of a treaty or the official
character of the person assailed
 Successful Revolutionist or insurgents in civil war
– The government created through its effort is liable for
the acts of the revolutionists as well as for those of the
titular government it has replaced
 Unsuccessful Revolutionist or insurgents in civil war
– The state is not responsible for the injuries sustained by
the aliens
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
– Unless, there is proven fault or want of diligence on the
part of the authorities in preventing the injury or in
suppressing the revolution
2. Acts of the Government Official
 For state responsibility to attach, it is only necessary that the
local remedies, if any, has been exhausted without redress being
secured.
 Where the officer acts beyond the scope of his office, his act is
like that of any private individual.
 For acts of minor or subordinate officials, something more than a
mere failure to redress the wrong is necessary to hold the State
responsible
 There must be
– a denial of justice or
– something which indicates the complicity of the State, or
– its condonation of, the original wrongful act, such as an
omission to take disciplinary action against the wrong
doer.
 Where the State has disciplined the officer,
– Or there was no denial of justice
– The State is not responsible though there might have
been an exhaustion of local remedies
– REASON: the wrongful act of a subordinate official is not
the act of the State unless and until some organ of the
State has expressly or tacitly ratified the act.
G. Denial of Justice
 What constitutes denial of justice?
– includes all acts or omissions capable of giving rise to
international responsibility on the part of the state for
injury to the person or property of an alien regardless of
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the state organ which may have been the proximate
cause of the injury.
 Harvard Research Draft Convention on Responsibility of States
– Article 9. A state is responsible if an injury to an alien
results from a denial of justice. Denial of Justice exists
when there is a denial, unwarranted delay or
obstruction of access to courts, gross deficiency in the
administration of judicial or remedial process, failure to
provide those guaranties which are generally
considered indispensable to the proper administration
of justice, or a manifestly unjust judgment. An error of
a national court which does not produce manifest injury
is not a denial of justice.
 When is there denial of justice?
– (a) Unwarranted delay or obstruction of access to courts
– (b) Gross deficiency in the administration of judicial or
remedial process
– (c) Failure to provide guarantees in the proper
administration of justice
– (d) Manifestly unjust judgment
 Not limited to courts
– There may be certain acts or omissions of organs of
government other than courts but closely connected
with the administration of justice.
• Execution without trial
• Inexcusable failure to bring a wrong doer to
trial
• Long imprisonment before trial
• Grossly inadequate punishment
• Failure to enforce a judgment.
 TRUE or FALSE? An error of a national court which does not
produce manifest injury is not a denial of justice.
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
– FALSE! Generally, an error which does not produce
manifest injury committed by a national court is not a
denial of justice. However, there are TWO EXCEPTIONS
to the general rule.
• Court gives an incorrect interpretation of the
law
• When it applies a rule of municipal law which is
contrary to international law.
 In Latin American States –
– There is denial of justice when an alien is denied access
to court
• So, if a court gives a decision of any kind, no
matter how unjust from the point of view of
other States there is no denial of justice.
– This view is untenable
• It has the effect of repudiation of minimum
standard of international justice
• A state cannot, although allowing access to
courts, yet deny justice.
• It gives rise to corruption, threats,
unwarrantable delay and flagrant abuse of
judicial procedure, a judgment dictated by the
executive or so manifestly unjust that NO
COMPETENT AND HONEST COURT COULD HAVE
GIVEN IT.
 Condition for enforcement of claim
– First, Alien must have first exhausted the remedies
provided by the local law.
• The condition is not imposed under certain
circumstances (Exception):
 When a claimant in a foreign state is
not required to exhaust justice in such
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State when there is no justice to
exhaust
 When there is certainty that the
application for remedy would result in
no redress.
 Condition may also be waived (express
or implied)
– Second, that the injury subject of the claim must have
been suffered by a national of the claimant State
• Basis:
 That the defendant State has broken
an obligation towards the claimant
State (in respect to its nationals)
 That only the party to whom an
international obligation is due can
bring a claim in respect to its breach.
• Exception:
 There should be a bond of nationality
between the claimant State and the
person injured
– Why?
• Citizen going abroad is presumed to know the
means furnished by local law for the redress of
wrongs
• The right of sovereignty and independence
warrants the courts independence from
interferences
____________________________________________________________
Extradition
A. Introduction
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012


th
Hugo Grotius in De Jure Belli ac Pacis (circa 17 Century)  Exception: Extradition may be granted for
recognized the social necessity that a State to which a crimes committed within the territory of third
criminal may have escaped, either to punish him or else States.
surrender him to the State whose laws had been directly
violated. D. Basics
(1) Two Kinds of Fugitives
B. Definition a. Fugitive Political Offenders
 Extradition is the removal of an accused from the b. Fugitive Criminals
[requested State] with the object of placing him at the (2) Two Main Types of Extradition Treaties
disposal of foreign authorities to enable the requesting a. Classical Type (List-type Extradition Treaty) –
State or government to hold him in connection with any specifies the offenses for which extradition is
criminal investigation directed against him or the provided; and
execution of a penalty imposed on him under the penal b. Modern Type (Double Criminality Clause) –
or criminal law of the requesting State or government. provides for extradition in all cases where the
(Presidential Decree 1069) offense is punishable in both the demanding
and surrendering States. (Sarmiento, 2009)
C. Fundamental Principles In Re Castioni In Re Meunier
(1) A State is not under any legal obligation to 1 Q.B. 149 (1891) 2 Q.B. 415 (1894)
surrender a fugitive from justice in the Upon entering the municipal palace of Ticino
absence of an extradition treaty. (Swiss Republic), during a public disturbance, the A prisoner (an admitted anarchist) committed
FA prisoner killed a member of the Government for extradition, on two charges of committing
 Exception: The surrender may still
CT with a revolver. He escaped but was arrested in anarchist outrages in France, by causing
take place as a matter of moral S England, where he was committed for explosions at certain barracks, applied for a writ
obligation founded on extradition. He eventually applied for a writ of of habeas corpus.
international comity. habeas corpus.
(2) Principle of Specialty. A person extradited Denied. In order to constitute an offence of a
can be tried in the demanding State only HE Granted. At the time at which the shot was fired political character, there must be two or more
for the offense charged in the extradition LD he acted in the furtherance of the unlawful rising parties in the State, each seeking to impose the
to which at that time he was a party. Government of their own choice on the other.
proceeding, unless the surrendering State
offers no objection.
E. Cases
(3) Religious and Political Crimes are not extraditable.
(4) Crime allegedly committed must have been perpetrated
F. Why are fugitive political criminals not extraditable?
within the jurisdiction of the demanding State.

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(1) Experience has shown that the attempt to impose legal

responsibility for political acts usually degenerates into a
politicization of legal procedure;
(2) The offender possesses the right-to-revolt against
tyranny, and if this right is to be meaningful, then in case
of failure he should be entitled to asylum; and
(3) The principle of neutrality and non-interference in the
international affairs of another state dictates that where
there is a “contest” between the government and a
population’s segment, the offender should not be
extradited. (Coquia and Defensor-Santiago, 2005)

G. Five Postulates
(1) Extradition is a major instrument for the suppression of
crime;
(2) The Requesting State will accord due process to the
accused;
(3) The proceedings are sui generis;
(4) Compliance shall be in good faith; and
(5) There is an underlying risk of flight. (Government of the
USA v. Purganan, 389 SCRA 623 (2002) per Panganiban,
J.)

H. Extradition Procedure (Magallona, 2005)

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I. Crimes against the Law of Nations

 Piracy
 Any person who, on the high seas, or in
Philippine waters shall attack or seize a vessel
or, not being a member of its complement nor a
passenger, shall seize the whole or part of the
cargo of said vessel, its equipment, or personal
belongings of its complement or passengers.
(Article 122, Revised Penal Code)
 Slave Trade
 Genocide – means any of the following acts committed
with intent to destroy, in whole or in part, a national,
ethnical, racial or religious group as such:
a. Killing members of the group;
b. Causing serious bodily or mental harm to
members of the group;
c. Deliberately inflicting on the group conditions of
life calculated to bring about its physical
destructing in whole or in part;
d. Imposing measures intended to prevent births
within groups; and
e. Forcibly transferring the children of the group to
another group. (Rome Statute, Article 6)
_____________________________________________________________
HOWEVER
Nottenbohm case: provisions of a State’s municipal laws are not
necessarily conclusive to establish its right to exercise diplomatic
protection under international law, if the bond of nationality is not a real
and effective one.
Definition:
Nationality – the principal link between individuals and the benefits of the
Laws of Nations
- it is the bond of nationality between the state and the individual which
alone confers upon the state the right of diplomatic protection
- membership in a political community
- often used interchangeably with citizenship
In municipal law, there is a distinction between citizenship and national.
- Citizen: one who enjoys full political rights
- National: includes a citizen as well as a person who, not being a
citizen, owes permanent allegiance to the State and is entitled to its
protection
In public international law, the distinction is of no importance.
B. ACQUISITION AND LOSS OF NATIONALITY

Nationality The Hague Convention of 1930 on Conflict of Nationality Laws

A. DEFINITION Two important rules:

Each State is free to determine by its own laws the persons whom it 1. It is not for international law but for the municipal law of each State to
considers to be its own nationals. determine who are the nationals of a particular state.

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a. Subject to certain limitations: This law shall be recognized by 4. Renunciation

other States insofar as it is consistent with international  example: a child, upon reaching the age of majority,
convention, international customs, and the principles of law renounces one citizenship in favour of another
generally recognized with regard to nationality 5. Substitution
2. Any question as to whether a person possesses the nationality of  accomplished where the former nationality is lost ipso facto
particular State shall be determined in accordance with the law of that by naturalization abroad or by marriage
State.
C. MULTIPLE NATIONALITY
Five Modes of Acquiring Nationality
- It may result from:
1. Birth o Concurrent application of jus sanguinis and jus soli at
 Jus sanguinis (by blood) birth
 Jus soli (by place) o Denial by one state of the right of expatriation
 Combination of both o Marriage
2. Naturalization o Formal and voluntary act
 Includes not only naturalization proper, that is, the grant - When an individual has two nationalities, two States
of citizenship upon application in regular proceedings, simultaneously demand allegiance and loyalty from him
but also marriage, legitimation, option, acquisition of - This becomes a problem when two States are involved in a
domicile, and appointment as Government official strained relationship, which may lead to war
3. Resumption (or Repatriation) - Thus, the Hague Convention on the Conflict of Nationality Laws
 Recovery of the original nationality upon fulfilment of certain was formulated.
conditions
4. Subjugation Hague Convention on the Conflict of Nationality Laws
5. Cession
Article 3. Subject to the provisions of the present Convention, person
Five Modes of Losing Nationality having two or more nationalities may be regarded as its national by each
of the States whose nationality he possesses.
1. Release
 some States give their citizens the right to ask for release Article 4. A State may not afford diplomatic protection to one of its
from their nationality national against a State whose nationality such person also possesses.
2. Deprivation
 some States deprive their citizens of nationality upon entry Article 5. Within a third State, a person having more than one nationality
into the military service of a foreign power shall be treated as if he had only one. Without prejudice to the application
3. Expiration
of its law in matters of personal status and of any conventions in force, a
 where a national stays abroad for a long time and has not
third State shall, of the nationalities which any such person possesses,
indicated any desire to return, some States by legislation
decree that loss of nationality under such circumstances recognise exclusively in its territory either the nationality of the country in

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which he is habitually and principally resident, or the nationality of the
country with which in the circumstances he appears to be in fact most
closely connected. (Effective Nationality Principle)
Article 6. Without prejudice to the liberty of a State to accord wider rights
to renounce its nationality, a person possessing two nationalities acquired
without any voluntary act on his part may renounce one of them with the
authorisation of the State whose nationality he desires to surrender.
Protocol Relating to Military Obligations in Certain Cases of Double
Nationality
Article 1. A person possessing two or more nationalities who habitually
resides in one of the countries whose nationality he possesses, and who is
in fact most closely connected with that country, shall be exempt from all
military obligations in the other country or countries. x x x
Article 2. Without prejudice to the provisions of Article 1 of the present
Protocol, if a person possesses the nationality of two or more States and,
under the law of any one of such States, has the right, on attaining his
majority, to renounce or decline the nationality of that State, he shall be
exempt from military service in such Stated during his minority.
Article 3. A person who has lost the nationality of a State under the law of
that State and has acquired another nationality, shall be exempt from
military obligations in the State of which he has lost the nationality.
Nottenbohm Case (I.C.J. Reports 1955, p.4)- The ICJ used the principle of
effective nationality
D. STATELESS PERSONS
- One who is not considered a national by any State under the
operation of its law
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- The link of an individual to international law is his nationality
(traditional school). Thus, international law has no way of assisting
the individual without nationality, unless his position is made the
subject of a treaty.
- That is why, efforts have been exerted to minimize the condition
of statelessness.
Hague Convention on the Conflict of Nationality Laws
Article 7. In so far as the law of a State provides for the issue of an
expatriation permit, such a permit shall not entail the loss of the
nationality of the State which issues it, unless the person to whom it is
issued possesses another nationality or unless and until he acquires
another nationality. x x x
Article 8. If the national law of the wife causes her to lose her nationality
on marriage with a foreigner, this consequence shall be conditional on her
acquiring the nationality of the husband.
Article 10 Naturalisation of the husband during marriage shall not involve a
change in the nationality of the wife except with her consent.
Article 13.
x x x In cases where minor children do not acquire the nationality of their
parents as the result of the naturalisation of the latter, they shall retain
their existing nationality.
Article 14
A child whose parents are both unknown shall have the nationality of the
country of birth. If the child’s parentage is established, its nationality shall
be determined by the rules applicable in cases where the parentage is
known. x x x
Article 15
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012

Where the nationality of a State is not acquired automatically by reason of
birth on its territory, a child born on the territory of that State of parents
having no nationality, or of unknown nationality, may obtain the
nationality of the said State. x x x
Other Rights of a Stateless Person
Article 17
If the law of a State recognises that its nationality may be lost as the result
of adoption, this loss shall be conditional upon the acquisition by the
person adopted of the nationality of the person by whom he is adopted,
under the law of the State of which the latter is a national relating to the
effect of adoption upon nationality.
Protocol Relating to a Certain Case of Statelessness
o Housing and public education (other than elementary
education)
o Movement
- Issuance of identity papers and travel documents
- Parties shall not expel lawfully in their territory except for national
security or public order in accordance with due process of law
- Allow for a reasonable period within which to seek legal
admission into another country
- Facilitate the assimilation and naturalization proceedings and
reduce the charges and costs

Article 1. In a State whose nationality is not conferred by the mere fact of MARRIED WOMAN
birth in its territory, a person born in its territory of a mother possessing
the nationality of that State and of a father without nationality or of Systems Governing Nationality of a Married Woman:
unknown nationality shall have the nationality of the said State.
1. Unity of Family- Nationality of wife follows that of her husband
2. Principle of unity of nationality is subjected to the requirements
Rights of a Stateless Person
of the law of countries concerned- Automatic acquisition of
nationality of husband if the laws deprive her of original
- Favorable as that accorded to their nationals:
nationality
o Freedom to practice religion and religious education of
3. Principle of independence- Marriage, its dissolution and the
their children
change of husband’s nationality during the marriage have no
o Access to the court
effect
o Rationing of products in short supply
o Elementary education
- The trend in international law is to replace the traditional
o Public relief and assistance to labor legislation and social
principle of the unity of tge family with the principle of
security
independence of the nationality of the wife from that of the
- As favorable as possible to their nationals BUT not less favorable
husband
than that accorded to aliens in the same circumstances
- Convention on the Nationality of a Married Woman – Neither
o Acquisition of property
the celebration nor the dissolution of marriage between one of its
o Association in non-political and non-profit organizations
nationals and alien, nor the change of nationality by the husband
and trade unions
during the marriage, shall automatically affect the nationality of
o Gainful employment and practice of liberal professions
the wife.

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Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
- As concession to the unity of family principle, the alien wife of a
national may acquire the nationality of the husband through a
specially privileged naturalization procedures, at her request (but
not as a matter of right)
CASES:
1. The Nottebohm Case 1955 ICJ 4; 49 AJIL 396 (1955)
DOCTRINE: The provisions of a State’s municipal laws are not necessarily
conclusive to establish its right to exercise diplomatic protection under
international law, if the bond of nationality is not a real and effective one.
Facts:
• Frederic Nottebohm
– German national from the time of his birth
• Always retained his connections with members of his
family who had remained in Germany
• Always had business connections in Germany
– Settled in Guatemala for 34 years
• Carried his activities in Guatemala and was the main
seat of his interests
• Returned there shortly after his naturalization and
remained the center of his interests and business
activities
• Stayed there until his removal as a result of war
measures in 1943
– Applied for naturalization in Liechtenstein in October, 1939
• Shortly after his naturalization was granted, he
returned in Guatemala
• His actual connection with Liechtenstein were
extremely tenuous
• No settled abode, no prolonged residence in that
country at the time of his application for
naturalization
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• His application for naturalization was motivated by
the desire to dissociate himself from the
Government of his country as a belligerent State to a
national of a neutral State
• His visit in that country is transient in character, with
no intention of settling there and no manifestation
of any intention to transfer all or some of his
interests and business activities to Liechtenstein.
• Other members of his family have asserted
Nottebohm’s desire to spend his old age in
Guatemala
• In 1943 – his properties were seized and had to get out of Guatemala
• Liechtenstein filed suit against Guatemala, in behalf of Nottenbohm,
asking for damages and restoration of all properties
– Liechtenstein sought judgment in the International Court of
Justice against Guatemala for arresting, detaining, expelling
and refusing to readmit Nottebohm and for seizing and
retaining his property without compensation
Issues:
• Whether Mr. Nottebohm, having acquired the nationality of
Liechtenstein, that acquisition of nationality is one which must be
recognized by Guatemala
• Whether such an act of granting nationality by Liechtenstein
directly entails an obligation on the part of Guatemala to
recognize its effect, namely, Liechtenstein’s right to exercise its
protection
Held:
• The naturalization of Nottebohm was an act performed by
Liechtenstein in the exercise of its domestic jurisdiction.
• It is not necessarily and automatically binding on other States or
which are binding on them only subject to certain conditions
• Each State remains within the limits of its domestic jurisdiction
• It is international law which determines whether a State is
entitled to exercise protection and to seize the Court
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
• International law gives preference to the real and effective
nationality
• Based on stronger factual ties between the person
concerned and one of the States whose nationality is
involved
• Different factors are considered and varies from one case
to another
• Habitual residence
• Center of interests
• Family ties
• Participation in public life
• Attachment to the country, etc.
• Nationality is a legal bond having as its basis a social fact
of attachment, a genuine connection of existence,
interests and sentiments, together with the existence of
reciprocal rights and duties
• The facts clearly established the absence of any bond of
attachment between Nottebohm and Liechtenstein, and the
existence of a long standing and close connection between him
and Germany
• Guatemala considered him a German national
• Guatemala is under no obligation to recognize a nationality
granted by Liechtenstein in such circumstances as in this case.
• Liechtenstein consequently is not entitled to extend its protection
to Nottebohm vis-à-vis Guatemala and its claim was held
inadmissible.
• A State is not entitled to present a claim on behalf of a natural
person who is its national if that peson lacks genuine connection
of sentiment, residence, or other interests with that State
• Judgment was for Guatemala
2. Mejoff v. Director of Prisons 90 Phil 70 (1951)
DOCTRINE: The protection against deprivation of liberty without due
process of law and except for crimes committed against the laws of the
land is not limited to Philippine citizens but extends to all residents, except
enemy aliens, regardless of nationality.
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Facts:
• Mejoff
– An alien of Russian descent
– Brought to the Philippines from Shanghai by the Japanese
forces in 1944
– Held in temporary detention justified as a necessary step to
his expulsion as an undesirable alien
– Filed his first petition for habeas corpus, which was denied
– Remained in detention after over two years, not having been
deported yet. The Government has not found ways and
means of removing him out of the country as no ship or
country would take Mejoff
– Filed his second petition also for habeas corpus
Issue: Whether an alien who entered the country in violation of its
immigration laws may be detained for as long as the Government is unable
to deport him
Held:
• Aliens illegally staying in the Philippines have no right of asylum, even
if they are ‘stateless,’ which the petitioner claims to be
• However, foreign nationals, not enemy, against whom no charge has
been made other than that their permission to stay has expired, may
not indefinitely be kept in detention
• The protection against deprivation of liberty without due process of
law and except for crimes committed against the laws of the land is
not limited to Philippine citizens but extends to all residents, except
enemy aliens, regardless of nationality.
• Mejoff’s entry into the Philippines was not unlawful, he was brought
by the armed and bellingerent forces of a de facto government whose
decrees were law during the occupation.
• In the Universal Declaration of Human Rights, it was resolved that
“Everyone is entitled to all the rights and freedoms set forth in
this Declaration, without distinction of any kind, such as race,
color, sex, language, religion, political or other opinion, nationality
or social origin, property, birth or other status.”
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
“No one shall be subjected to arbitrary arrest, detention or exile.”
• The warrant of deportation, not having been able to be executed, is
functus officio and the alien is being held without any authority of law
• Mejoff’s second petition for writ of habeas corpus must be granted
• The writ will issue commanding the release of Mejoff from custody
upon these terms:
– He shall be placed under the surveillance of the immigration
authorities or their agents in such form and manner as may
be deemed adequate to insure that he keep peace and be
available when the Government is ready to deport him
– The surveillance shall be reasonable and the question of
reasonableness shall be submitted to the Court for decision in
case of abuse
– He shall also put a bond with sufficient surety or sureties
_____________________________________________________________
Diplomatic Intercourse
A. ESTABLISHMENT OF DIPLOMATIC RELATIONS
A. Why is it important?
i. To promote interdependence of nations
ii. To develop friendly intercouse between members of the
international community, which is one of the aims of United
Nations
iii. To necessitate the establishment of diplomatic relations between
them
B. How is it established?
i. Right of Legation
1. The right to send and receive diplomatic missions
2. Strictly speaking, it is not a “right” but an aptitude on the part of
the sovereign state to enter into diplomatic relations with other
states
B. AGENTS OF DIPLOMATIC INTERCOURSE
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a. Head of State
i. Is the chief organ and representative of the state
ii. His competence to act in behalf of his state comprises in general the
right to receive and send diplomatic missions, conclude treaties
declare war and make peace
iii. A head of state who travels or stays in a foreign teritory is entitled
to the ff:
1. Honors befitting his position and dignity
2. Special protection to ensure his personal safety
3. Maintenance of his dignity
iv. If he is travelling incognito (without revealing his indentity):
1. Enjoys the same provileges and immunities, except that no
ceremonial honors are rendered to him.
v. If he is travelling incognito without informing the foreign state
1. He cannot be treated other than as an ordinary alien but he
can at any time reveal his identity and demand the privileges
and immunities due him
b. Foreign Office
i. In every modern state, there is, in one form or another a
Foreign Office to whom the actual day to day conduct of foreign
affairs is entrusted
ii. The head of the office is usually a Minister or Secretary, who is
a Cabinet member
1. Functions:
a. Carries on negotiations with foreign states, either
personally or through the diplomatic of his country
b. In proper cases, make binding declarations on behalf of
his government
C. ESTABLISHMENT OF RESIDENT MISSIONS
a. History
th
i. It began in the 13 century among the Italian Republics but the
th
practice did not become general until the 17 century.
b. What is a Mission?
i. The mission comprises a head and subordinate personnel who
normally fall under the following categories:
1. A Diplomatic Staff
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
2. Administrative and Technical Staff
3. Service Staff
c. Common Practices
i. The diplomatic missions must furnish to the Foreign Office of
the receiving State a list of the members of the mission and the
Foreign Office to publish the list.
ii. The Size of the mission maybe limited by the receiving state.
iii. The Receiving state may also refuse to accept officials of a
particular category.
iv. The Receiving state is also under the obligation to facilitate the
acquisition on its territory.
v. Head of mission to one state may at the same time be
accredited by another state unless objection is offered by any of
the receiving states.
D. ENVOYS AND CONSULS
a. Envoys
i. History
1. The Vienna Regulation established three classes of
diplomatic officials:
a. Ambassadors, legates or nuncios
b. Ministers or other envoys
c. Charges d’affaires
2. The Congress of Aix-la-Chapelle of 1818 instituted a fourth
class: Residents ministers coming in order of precedence
between the second and third established classes.
3. Vienna Convention of 1961 on Diplomatic Relations
classifies heads of missions into 3:
a. Ambassadors or nuncios accredited to Heads of
State and other heads of mission of equivalent rank.
b. Envoys ministers and internuncios accredited to
heads of state.
c. Charges d’affaires accredited to Ministers for
Foreign Affairs.
4. Formerly ambassadors in contradistinction to ministers
were considered as personal representative of the Head of
State.
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5. Now, Diplomatic agents regardless of rank are regarded as
presenting not the person of the Head of State but their
government.
6. The rank to be given to a diplomatic representative
accredited by one country to another is determined by
mutual desires of the two governments concerned and is
based on considerations of political, economic and cultural
ties between two countries.
7. It is common practice of state to exchange diplomatic
representative of equal rank.
ii. Appointment of Diplomatic Envoys
1. The personal qualifications and manner of appointment of
diplomatic officials are matters to be determined solely by
the municipal law of the sending state.
2. The receiving state has a right to refuse to receive as envoy
of another state a person whom it considers persona non
grata or unacceptable.
3. In refusing a designated individual, a state is not bound to
state its objection.
4. Agreation:
a. Inquiry usually informal, addressed by the sending
State to the receiving State regarding the
acceptability of an individual to be the chief of a
diplomatic mission.
b. The receiving state indicates to the sending state
that such person is acceptable
b. Consuls
i. History
1. Traced to the practice of Greek City State of appointing
from among its citizens a procenia to assist and protect
traveling citizens of appointing states.
2. In the Middle ages the custom developed among foreign
merchants in the Mediterranean trade as a result of the
Crusades.
ii. Status
1. Consuls belong to a class of State agents distinct from
diplomatic officers.
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012

2. They are not clothed with diplomatic character and are not but not always a diplomat) to be their ambassador in the country of
accredited to the government of the country where they the head of state receiving the letter
exercise their consular functions. b. Opposite of letter of credence is the letter of recall.
3. They are not entitled to maintain direct intercourse with c. In parliamentary democracies, heads of state or their representatives
the foreign government. accept or reject letters of credence on the basis of advice (that is the
iii. Kinds and Grades instructions from the government which put the head of state under
1. Career Consuls or Consules missi obligation) form their state’s government.
2. Honorary Consuls or consules electi i. In reality, however, they are almost invariably accepted, as both
3. Heads of Consular post fall under states will have informally discussed the issue prior to the
a. Consul General formal ceremony.
b. Consuls d. Until a head of state or his or her delegate formally accepts a letter of
c. Vice Consuls credence, an ambassador-designate does not formally assume
d. Consular Agents diplomatic status, including the possession of diplomatic immunity.
iv. Appointment and Admission i. In may states, a minister in the government or in cabinet will
1. Both the sending and receiving State participate in vesting attend (that is, be present with) the head of state at the actual
a person with consular status. ceremony, to symbolize the fact that the acceptance or
2. The appointment is evidence by a commision known as rejection of the letter of credence is on the basis of government
letter paten advice.
3. The receiving state then grants an exequatur by the head of e. Letters of credence are the most formal form of exchange between
such state. states short of state visits, with formal modes of address such as titles
and styles being used.
E. DIPLOMATIC CORPS
G. NOTIFICATION AND RECEPTION
a. Also known as Corps Diplomatique
b. It is a collective body of foreign diplomats accredited to a particular a. Appointment of head and other members of mission should notify the
country or body Ministry of Foreign Affairs of the receiving State
c. The term is sometimes confused with the collective body of diplomats b. A letter of credence is presented..
from a particular country- the proper term for which is diplomatic i. Ambassador or Minister
service or Foreign Service. ii. Charges d’affares
d. The diplomatic corps is not always given any formal recognition by its
host country, but can be referenced by official orders of precedence. H. FUNCTIONS AND DUTIES
e. According to diplomatic custom, all diplomatic envoys accredited to
the same state form a body known as “Diplomatic Corps”. a. Main functions:
i. Represent the sending State in the receiving State
F. LETTERS OF CREDENCE ii. Protecting the interests of the sending State in accordance of
international law
a. Is a formal letter usually sent by one head of state to another that iii. To Negotiate with the receiving State
formally grants diplomatic accreditation to a named individual (usually

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Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
iv. Ascertaining by lawful means conditions and developments in the
receiving State and reporting it
v. Promote friendly relations – developing economic, cultural and
scientific relation
I. PRIVILEGES AND IMMUNITIES
a. Diplomatic Representatives are entitled to the following privileges and
immunities:
i. Personal Inviolability
1. A person of Diplomatic envoy SHALL NOT BE LIABLE TO ANY
FORM OF ARREST OF DETENTION.
2. As part of the States’ duty of special protection, it is required
that the receiving state to not only protect the diplomatic
envoy against outrage, but to employ all means reasonably
necessary to bring offenders against him to justice.
3. The Convention on the Prevention and Punishment of Crimes
against Internationally Protected Persons was adopted by the
United Nations General Assembly. Such included Diplomatic
Agents.
4. Each party undertakes to make punishable by appropriate
penalties any murder, kidnapping or other attack upon the
person or liberty of an internationally protected person, or
any attack upon his official premises, private accommodation
of means of transport.
5. Legislations were enacted for their special protection. Ex. In
the Philippines, there’s R.A. 75 punishes any person who
assaults, strikes, wounds, imprisons or in any other manner
offers violence to the person of an ambassador or public
minister.
6. BUT…
e. Although as a rule the person of diplomatic envoy is
inviolable, HE MAY BE ARRESTED temporarily, in case
of urgent danger, but must be released and sent
home in due time.
ii. Inviolability of Premises and Archives
1. Premises and Private Residence are also inviolable.
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2. The agents of the receiving state may not enter the premises
without the envoy’s consent except in extreme cases of
necessity.
3. It was said that the inviolability of the mission premises is not
the consequence of the inviolability of the mission head but is
an attribute of the sending state by reason of the fact that
the premises are used as headquarters of the mission.
iii. Right of Official Communication
1. The right to communicate with his government, fully and
freely.
2. May do so in any way as preferred.
3. Any interference is intolerable.
iv. Exemption from Local Jurisdiction
1. Immunity from the Criminal and certain cases of Civil
jurisdiction of the receiving state for all acts whether official
or private.
2. Unless diplomatic immunity is waived—cannot be arrested,
prosecuted and punished for any offense he may commit.
3. However, immunity does not mean exemption from the local
law—does not presuppose the right to violate any of the laws
of the receiving state.
4. As a rule immune from civil jurisdiction of the receiving state.
But such is not absolute.
a. Exceptions:
i. Any real action relating to private immovable
property situated in the territory of the receiving
state, unless it’s being held on behalf of the
sending state for purposes of the mission.
ii. In relation to succession where the diplomatic
agent is the executor, administrator, heir, legatee
as a private person and not on behalf of the
sending state.
iii. Relating to any professional or commercial activity
exercised by the diplomatic agent in the receiving
state outside his official functions.
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
iv. As special legislation designed to safeguard the
jurisdictional immunities of diplomatic agents.—
Republic Act 75
v. Exemption from Subpoena as Witness
1. Cannot be compelled to testify without the consent of their
governments, before any judicial or administrative court in
the receiving state.
2. Not even testimony or by deposition taken at the embassy.
vi. Exemption from Taxation
1. Granted as a matter of comity or courtesy.
2. The extent of exemption may be granted from country to
country.
3. Vienna Convention:
a. Diplomatic Agents are exempt from all dues and taxes,
whether personal or real, national, regional or municipal.
EXCEPT the following:
i. Indirect taxes in prices of goods and services
ii. Dues and taxes on private immovable property
situated in the territory of the receiving state, unless
it’s being held on behalf of the sending state for
purposes of the mission.
iii. Estate, succession or inheritance taxes levied by the
receiving state
iv. Dues and taxes on private income having its source in
the receiving state and capital taxes as well.
v. Charges levied for specific services rendered.
vi. Registration, court or record fees, mortgage dues and
stamp duty, with respect to immovable property.
vii. Exemption from Customs Duties and Inspections
1. Articles for use of the mission are exempt from customs duties
2. Generally customs duties are also no levied on articles intended
for the personal use of the diplomatic agent or members of his
family, belonging to his household.
a. In the Philippines, diplomatic representatives are accorded
customs courtesies on a reciprocal basis.
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b. Articles addressed to ambassadors, ministers etc.
representing governments in the Philippines are exempt
from customs inspection.
viii. Right of Assylum
1. Does NOT include general right of asylum.
2. Unless recognized by treaty of local usage, one should not
permit the premises of the mission or his residence to be used
as a place of asylum for fugitives from justice.
3. But may, in the interest of humanity afford temporary shelter
to persons in imminent peril of their lives & those fleeing from
mob violence.
ix. Acquisition of Nationality
1. Children born to a diplomatic agent while possessing diplomatic
status are regarded as born in the territory of his home state.
x. Right to Display Flag
1. The mission and its head have the right to display the flag and
emblem of the sending state on the premises of the mission,
residence of the head of mission and on his means of transport
b. Duration
i. Enjoyment starts from:
1. The moment he enters the territory of the receiving state
on proceeding po take up his post
2. If he’s already in its territory, from the moment his
appointment is notified to the Ministry for Foreign Affairs
or such other ministry as may be agreed.
ii. Ends or Normally Ceases Upon:
1. Upon his departure from the receiving state, or on expiry of
a reasonable period in which to do so, but shall subsist until
that time, even in case of armed conflict.
iii. As regards to official acts, the envoy’s immunity from the local
jurisdiction survives the cessation of his diplomatic character
and functions, since immunity is not attached to his person but
to the sending state.
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
iv. Death does not divest the members of the diplomatic agent’s
family of the privileges and immunities, until the reasonable
time to leave the country.
c. Persons Entitled to Privileges and Immunities
i. Head of the Mission
ii. Members of the Diplomatic Staff
iii. In general, members of the administrative and technical staff of
the mission, if they are not nationals of or permanently residing
in the receiving state— accorded with the privileges and
immunities of diplomatic agents, except that of customs
exceptions and immunity from civil administrative jurisdiction
of the receiving state for acts done outside their duties.
iv. Service Staff of the Mission—limited to immunity in respect of
official acts and exemption from taxation on their salaries—
granted if not nationals or permanent residents of receiving
state.
v. Private servants of members of the mission (not nationals nor
permanent residents)—exemption of taxes on their salaries and
others which the receiving state may grant.
vi. If permanently residing or are nationals of the receiving state—
only immunity from jurisdiction and inviolability in respect of
official acts.
vii. REPUBLIC ACT No.75—immunity from writ or process is not
granted to:
1. Citizens of inhabitants of the Philippines in the service of a
foreign ambassador or public minister, where the process is
founded upon a debt contracted before they have entered
upon such service
2. To domestic servants of an ambassador or minister unless
the name of the servants has been registered in the DFA
before the issuance of the process and transmitted by the
Department to the chief of Police of Manila.
d. Waiver of Diplomatic Privileges and Immunities
i. May be waived but as a rule the waiver cannot be made by an
individual concerned since such privileges and Immunities are
not personal to him.
82 | P a g e
ii. May be made only by the government of the sending state if it
concerns the privileges and immunities of the chief of mission.
iii. Or the waiver may be made by either the government or the
sending state of the chief of mission.
iv. Waiver of immunity from jurisdiction MUST always be EXPRESS.
v. Waiver of immunity from jurisdiction in respect of civil and
administrative proceedings shall not be held to imply waiver of
immunity in respect of the execution of the judgment.
J. TERMINATION OF DIPLOMATIC MISSION
a. A diplomatic mission comes to a formal end with
i. Death of the envoy
ii. His recall by his government
b. May be due to resignation or transfer to another post
i. His dismissal by the receiving state.
ii. Rupture of diplomatic relations
iii. Outbreak of war between the sending and receiving states.
iv. Expiration of the period
v. Upon accomplishment of or its failure to accomplish its object.
CASES:
1. Dickinson v. Del Solar 1930
This is a suit to recover damages against the defendant, who was
at that time the First Secretary of the Peruvian Legation in London, for
injuries sustained by plaintiff arising from a motorcar accident. The
defendant sought a declaration that he was entitled to be indemnified by
his insurer, the Mobile and General Insurance Co. Ltd., for any amount he
might be adjudged to pay to the plaintiff. The insurance company
interposed, among other defenses that the defendant was under no legal
liability to the plaintiff because of his diplomatic status.
Diplomatic agents are not, in virtue of their privileges as such,
immune from legal liability for any wrongful acts. The accurate statement
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
is that they are not liable to be sued in the English Courts unless they
submit to the jurisdiction. Diplomatic privileges do not import immunity
from legal liability, but only exemption from local jurisdiction. The privilege
is the privilege of the Sovereign by whom the diplomatic agent is
accredited, and it may be waived with the sanction of the Sovereign or of
the official superior of the agent. . . .
•In the present case the privilege was waived and jurisdiction was
submitted to by the entry of appearance, . . . and as Mr. Del Solar had so
submitted to the jurisdiction it was no longer open to him to set up
privilege. If privilege had been pleaded as a defense, the defense could, in
the circumstances, have been struck out. Mr. Del Solar was bound to obey
the direction of his Minister in the matter. . . .
2. Walthier v. Thomson
This is a suit against a Canadian government officer for damages
resulting from alleged false statements to induce plaintiff to migrate to
Canada. The question raised concerned the liability of the officer to be
sued.
D. P. Heeney, Ambassador of Canada to the U. S. appears as
amicus curiae for the defendant Thomson and has submitted suggestions
of Her Majesty in Right of Canada, Queen Elizabeth II, that Canada “is not
subject to suit * * * without Her consent whether the suit be brought
directly against Her or Her Government acting in course of his official
duties and in Her Majesty’s behalf in the City of New York.
Plaintiff consenting, U. S. Attorney has informed the Court of the
Department of State’s response to a note, dated March 17, 1960, from the
Charge d’Affaires of Canada to the Secretary of State concerning the
complaint herein. The charge’s note requested the assistance of the
Secretary of State in bringing to the Court’s attention that the defendant
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Thomson enjoys sovereign immunity. The Department’s reply, as
communicated to this Court is:
“It is a matter of record in the Department of State that Mr.
Hubert W. P. Thomson is ‘Settlement Officer – Department of Citizenship
and Immigration‘ of the Canadian Government on duty at the Canadian
Consulate General in New York City, that he held that position on and
continuously subsequent to March 6, 1957, [his] official duties include
interviewing and advising prospective immigrants to Canada.”
The statements which form the matrix of plaintiff’s claim, as reflected in
the amended complaint, are all comments made by Mr. Thomson to
plaintiff with respect to what plaintiff might anticipate upon arrival in
Edmonton. The complaint specifically alleges that Mr. Thomson was at all
times an officer of the Canadian government. We address ourselves solely
to the application of sovereign immunity to the facts of this case.
A consular official is immune from suit when acts complained of were
performed in the course of his official duties. Thus, if the statement
allegedly made to Walthier by Thomson were uttered in pursuance of
Thomson’s official functions as a consular officer, then the suggestion of
the Ambassador of Canada should be adopted and the defendant held
immune.
Mr. Thomson was sent to NY to interview and advise prospective
immigrants to Canada. Since the complaint itself alleges that the
statements were “designed to induce the plaintiff to leave the US,” it
appears beyond peradventure that he was acting in the course of his
official duties.
_____________________________________________________________
International Agreements
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012

A treaty is an agreement between States intended to create legal rights o executed – acts which are to be performed forthwith
and obligations of parties thereto. According to the Vienna Convention, a and which, when performed, dispose of the matter
treaty must be in written form and governed by international law. once and for all
o executory – acts to be performed regularly
However, international law has not prescribed any form for treaties.
whenever the occasion arises
Although treaties are normally reduced to writing, the fact that an - as to character of obligation
agreement is made orally does not affect its binding force. o simple
o conditional
Various terms have been used to designate international agreements. - as to function and legal character
These are: o conveyance
o contracts
a. treaty – international agreements that are political or quasi- o lawmaking
political in character o incorporating
b. convention – multilateral agreement between States
c. protocol – an instrument that amends or supplements a treaty or The essential conditions for the validity of a treaty are:
convention
d. agreement – an instrument of lesser importance than either a 1. capacity of the parties
treaty or convention and is usually not subject to ratification - As a general rule, every State possess the capacity to
e. final act – an instrument which records the conclusion of a conclude treaties because this is an attribute of sovereignty.
diplomatic conference However, some States may have limited capacity because of
f. exchange notes – informal method where States subscribe to their qualified status. Examples of such are:
certain understandings or recognize certain obligations as binding o Protectorates and protected States
upon them o de facto authorities
g. modus vivendi – a temporary agreement o a State that has assumed an undertaking not to
h. pactum de contrahendo – an agreement that will be incorporated enter into certain types of agreement
in a future treaty 2. competence of the particular organs concluding the treaty
i. compromis – an agreement for the submission of a dispute to - As a general rule, the Head of the State is the organ that
arbitration or judicial statement exercises the treaty-making power. However, constitutions
may contain provisions purporting to restrict or regulate the
Treaties are classified as follows: making of treaties.
- In the Philippines, the President is empowered by the
- as to number of parties Constitution to enter and to ratify treaties while the members
o unilateral of Senate merely concurs to the treaty.
o bilateral - Restrictions which prohibit treaties of a particular kind are
o multilateral regarded as without any international legal effect since the
- as to nature of acts to be performed material validity of a treaty is not a matter for the internal
law of any State to determine. On the other hand, treaties

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Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012

made in behalf by organs which are not constitutionally

competent to conclude them are not binding internationally. Act by which provisions of a treaty
3. reality of consent RATIFICATION are formally confirmed and
- Freedom of consent on the part of the plenipotentiaries
approved by the State.
concluding a treaty is a condition of its validity.
- When there is a vitiation of consent, the treaty is would be
voidable. RESERVATION A unilateral statement made by
4. legality of the object of the treaty a State whereby it purports to
- Immoral, illegal or impossible obligations cannot be he object exclude or modify the legal
of a valid treaty. REGISTRATION & effect of certain provisions of
- The object of a treaty is illegal only if it contravenes or Under the Charter
PUBLICATION the treaty in their application to
departs from an absolute or imperative rule or prohibition of of the UN, every
that State.
international law. However, States are free to agree upon a treaty and
rule or regime which modifies or departs from rules of international A State may not make
customary international law as long as those rules are in the
agreement entered reservations when:
nature of jus dispostivum.
- Inconsistency with an earlier treaty does not involve the into by its members - the treaty itself provides
question of nullity. An exception to this rule arises in cases should be otherwise;
ENFORCEMENT
involving conflict with the Charter of the United Nations. registered as soon - the reservation is
as possible with the incompatible.
NOTE: Consideration is not an essential element of treaty. FULL POWERS --
Secretariat and
document emanating from competent
published by it.
The process of concluding a treaty is illustrated in the diagram below: authority of a State designating a
person to:
Negotiations are conducted by the - represent a State in negotiating, adopting or authenticating a treaty;
NEGOTIATION Head of State, but as a rule he - express the consent of the State to be bound to a treaty;
designates representatives to act in his - accomplish any other act with respect to a treaty.
behalf.
Accession, Entry into Force, Effects of War/ Severance of Diplomatic
Relations and Termination of Treaties.
After completion of successful
SIGNING negotiations is the signing of On Accession:
the text of the instrument. This is also known as adhesion, this is the process by which a non-
signatory state becomes a party to a treaty. As found in the Vienna
It is not necessary that treaties Convention on the Law of Treaties, Article 15: Consent to be bound by a
should be signed. treaty expressed by accession. “The consent of the State to be bound by a
treaty is expressed by accession when: a) the treaty provides that such

85 | P a g e
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
consent may be expressed by the State by means of accession; b) it is
otherwise established that the negotiating States were agreed that such
consent may be expressed by the State by means of accession; or c) all the
parties have subsequently agreed that such consent may be expressed by
the State by means of accession.” An example would be is Croatia. On
December 12, 2011, Croatia signed the accession agreement to become
the 28th member of the European Union. Its membership will take
effect on 1 July 2013. Until then, it will haveobserver status. To join the
EU, Croatia not only had to meet economic benchmarks, but also had
to demonstrate its commitment to the rule of law, democracy and human
rights, including cooperation with the International Criminal Tribunal for
Yugoslavia following the conflict 16 years ago.
On Entry into Force:
This simply means coming into force or entry into force (also
called commencement) refers to the process by which legislation, treaties
and other legal instruments come to have legal force and effect. As found
in the Vienna Convention on the Law of Treaties, Article 24: Entry into
force
1. A treaty enters into force in such manner and upon such date as it may
provide or as the negotiating States may agree.
2. Failing any such provision or agreement, a treaty enters into force as
soon as consent to be bound by the treaty has been established for all the
negotiating States.
3. When the consent of a State to be bound by a treaty is established on a
date after the treaty has come into force, the treaty enters into force for
that State on that date, unless the treaty otherwise provides.
4. The provision of a treaty regulating the authentication of its text, the
establishment of the consent of the States to e bound by the treaty, the
manner or date of its entry into force, reservations, the functions of the
depositary and other matters arising necessarily before the entry into force
of the treaty apply from the time of the adoption of the text.
An example would be Kyoto Protocol which is an international
agreement on climate change. It has more than 191 signatories. Philippines
is one of it’s signatories. This agreement came into effect on February 16,
2005 which aims to regulate greenhouse gases in the earth’s atmosphere.
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On Effects of War/ Severance of Diplomatic Relations:
Article 63 of the same statute says that “the severance of
diplomatic or consular relations between parties to a treaty does not affect
the legal relations established between them by the treaty except in so far
as the existence of diplomatic or consular relations is indispensable for the
application of the treaty.” An article from the United Nations General
Assembly, A memorandum by the Secretariat, entitled “The effect of
armed conflict on treaties: an examination of practice and
doctrine” mentioned this significant statement: “One important policy
consideration in the law governing the effect of armed conflict on treaties
is the vital role of treaties in the system of international law and the time
and effort necessary for their negotiation and adoption. From
the perspective of international law, armed conflict is a disruption, for a
limited period of time, of the normal situation, which is peace. Therefore,
as a policy matter, there are advantages to trying to make treaties
resistant to intermittent armed conflict and, when that cannot be
achieved, treating the effect of war per se on treaties as suspensive rather
than terminative so that the treaties can return quickly to operation upon
the cessation of armed conflict.” From this point, it says that when there’s
a disruption of the normal situation for a limited period of time, the
treaties are suspensive rather than terminative. And they’ll return
operative again when the disruption terminates.
On the observance of treaties:
The general rule would be Pacta Sunt Servanda which literally in
English means: agreements must be kept. Every treaty in force is binding
upon the parties to it and must be performed by them in good faith.
(Article 26, Vienna Convention on the Law of Treaties)
Its exception would be Rebus Sic Stantibus; in English, things thus
standing. This is a legal principle which would justify non-performance of
treaty obligations where an unforeseen or substantial changes occur which
would render one of the parties thereto unable to undertake treaty
obligations as stipulated therein.
On the termination of treaties:
Article 70 of the same statute: Consequences of the Termination
of a Treaty provides the following:
 Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
1. Unless the treaty otherwise provides or the parties otherwise agree, the
termination of a treaty under its provisions or in accordance with the
present Convention: A. releases the parties from any obligation further to
perform the treaty; B. does not affect any right, obligation or legal
situation of the two parties created through the execution of the treaty
prior to its termination.
2. If a state denounces or withdraws from a multilateral treaty, paragraph
1 applies in the relations between that State and each of the other parties
to the treaty from the date when such denunciation or withdrawal takes
effect.
In addition to this, as follows are cases when treaties are terminated:
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 the parties when a treaty is bipartite
7. Novation
8. Occurrence of vital change of circumstance
9. Outbreak of war
10. Voidance of treaty because of defects in constitution, violation of its
provision by one party or incompatibility with international law
11. Application of the doctrine of rebus sic stantibus
12. The doctrine of jus cogens or the emergence of a new peremptory norm of
general international law which renders void any existing treaty conflicting
with such norm
An example of a case when a treaty is terminated would be the
international agreement on social security between Australia, United
Kingdom and Northern Ireland. It was terminated on March 1,
2001. Australia has terminated the Agreement because the UK
Government refuses to change its policy of not indexing pensions in
Australia, even though it does index pensions paid in some countries with
which it has Agreements. The Australian Government has made
considerable efforts over the last decade to get the UK to re-negotiate the
Agreement to address the indexation problem but the UK has refused all
87 | P a g e
our efforts. Hence, the agreement was terminated via impossibility of
performance due to UK’s refusal to change its policy of not indexing
pensions in Australia.
_____________________________________________________________
United Nations
Origin of the Charter
The name “United Nations” was devised by United States
President Franklin D. Roosevelt and was first used in the “Declaration by
United Nations” of 1 January 1942, during the Second World War, when
representatives of 26 nations pledged their governments to continue
fighting together against the Axis Powers.
The United Nations Charter was drawn up by the representatives
of 50 countries at the United Nations Conference on International
Organization, which met in San Francisco from 25 April to 26 June 1945.
Those delegates deliberated on the basis of proposals that had been
worked out by the representatives of China, the Soviet Union, the United
Kingdom and the United States at Dumbarton Oaks in August-October
1944.
The Charter was signed on 26 June 1945 by the representatives of
the 50 countries. Poland, which was not represented at the Conference,
signed it later and became one of the original 51 Member States. The
United Nations officially came into existence on 24 October 1945, when
the Charter had been ratified by China, France, the Soviet Union, the
United Kingdom, the United States, and a majority of other signatories.
United Nations Day is celebrated on 24 October each year.
The UN arose from the great conflicts around the world. Nations were
determined to establish a world organization capable of saving
“succeeding generations from the scourge of war.”
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
For peace
Security
Not really a new idea but based from several ideas and practices from the
past.
Although the desire for peace was as old as mankind, it was only after the
end of WW1 that efforts were made to organize the nations for world
peace.
The League of Nations was then established in 1919 as part of the peace
settlement. It sought to attain 2 major aims:
Promotion of international cooperation
Achievement of peace and security
But when the US failed to become a member, it suffered an initial setback
Declined and dissolved on April 19, 1946.
Although it failed, the idea of an international organization devoted to
promoting world peace was not abandoned.
As envisioned during the early days of WW2
The Atlantic Charter
Moscow Declaration issued in 1943 by China, Soviet Union, UK &
North Ireland, and USA
4 govt. recognized necessity
Dumbarton Oaks proposal which was submitted to all
countries for study
President Roosevelt, PM Churchhill, and Marshall
Stalin met to draw up the charter of the organization
The Charter of the United Nations was drawn up by the United Nations
Conference of International Organization, in San Francisco from April-
June 1945
Representatives of 50 states attended.
The Dumbarton Oaks proposal as well as the amendments formed
the basis for drafting the charter
Before the conference, the draft statute for the International
Court of Justice, on the basis of the Statute of the Permanent
Court of International Justice by a committee of jurists.
Charter was signed on June 26, 1945 and UN came into existence on
October 24, 1945, after ratification of majority of the signatories
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Including those permanent members
China
France
U.S.S.R.
United Kingdom
United States
Legal Nature of the Charter
The Charter of the UN is a multilateral treaty
Entered into between governments, rather than a constituent act
of the people of the UN
As a treaty, the Charter is, in strict law, binding only on the contracting
parties
Cardinal principle of international law- treaty cannot impose
obligations on States which are not parties to it
However, there are provisions which lay down obligations to non-member
States
Art. 2 par. 6- Organization shall ensure that States which are not
members of the UN act in accordance with the Principles of
the Charter so far as may be necessary for the maintenance
of international peace and security.
Chapter 7- enforcement action may be taken against any State,
whether a Member or not, which has been found guilty of an
act of aggression or breach of the peace.
Art. 103- when in conflict between Obligations of Members
under the Charter and their Obligations under any other
international agreement, those under the charter will
prevail. The agreements affected would apply to both
Members and non-member States.
Obligations under the Charter should not be hindered
by obligations assumed to non-member States.
The Charter assumes the character of basic law of the
international community, and non-member States are
expected to recognize it as one of the facts of international
life and adapt it to themselves.
Agreed by many writers that the UN Charter is a law-making treaty
Not like ordinary treaties which a mere contractual agreements
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
It would be unrealistic to consider the UN, with its multifarious
activities as nothing but a contractual arrangement between
certain states.
The Charter is a type of treaty which although contractual in origin and
character, possesses an existence independent of, and transcending,
the parties to the treaty
Purposes and Principles
Aims and Purposes of the UN are stated in the Preamble and Art. 1 of the
Charter
Purposes:
Maintain international peace and security by taking collective
measures to prevent or remove threat to the peace and
suppress acts of aggressions, and by adjusting or settling
international disputes which might lead to a breach of the
peace
To develop friendly relations among nations based on respect for
the principle of equal rights and self-determination of
peoples
To achieve international cooperation in solving international
economic, social, cultural or humanitarian problems and in
promoting respect for human rights and fundamental
freedoms
To be a center for harmonizing the actions of nations in the
attainment of these common aims
Art. 2- Principles
Sovereign equality of all the Members
Fulfillment in good faith by each Member of its obligations under
the Charter in order to ensure enjoyment by all of the
benefits derived from membership in the Organization
Peaceful settlement of international disputes in such a manner as
not to endanger international peace and security and justice
Abstention from any threat or use of force against the territorial
integrity or political independence of any State, or in any
other manner inconsistent with the purposes of the UN
Giving assistance to the Organization in actions taken in
accordance with the Charter and refraining from giving
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assistance to any State against which preventive or
enforcement action is taken by the Organization
Ensuring the non-member States act in accordance with the
principles of the Charter so far as may be necessary for the
maintenance of international peace and security
Non-intervention by the Organization in matters which are
essentially within the domestic jurisdiction of any State
“Domestic Jurisdiction Clause” is the most
substantial limitation found in the Charter on
the activities of the UN
It denies the UN authority to intervene in matters
essentially within the domestic jurisdiction of
any State and provide that Members are not
required to submit such matters to settlement
under the Charter
But this limitation does not apply the enforcement
measures under Chapter 7 so as not to weaken
the powers of the UN in maintaining
international peace and security
Membership
Admission of members
2 classes of membership:
Original members
Those admitted to membership
request for readmission by a withdrawn member should be
treated the same as an application for membership,
Original members
Those who participated in the San Francisco conference
Those having been parties to the Declaration by the UN,
signed, and ratified the Charter
To be entitled to admission
Applicant must fulfill the following conditions (Par. 1 of
Article 4)
Must be a State
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
Must be peace-loving
Must accept the obligations of the Charter
Should be both willing and able to carry out those
obligations
Members voting on an application for membership cannot juridically make
its consent to the admission of an applicant state dependent on
conditions not stated in Art. 4
It cannot also subject its affirmative vote to an additional
condition that other States be admitted together with
that State
2 things required to effect admission
A recommendation by the Security Council
Decision by the General Assembly
Recommendation by the Security Council
Affirmative vote of 9 of its members + concurring votes of the
permanent members= approve membership
A negative vote by a permanent member of the Council =
deny membership
Decision by the General Assembly
If Council recommends an applicant, General Assembly takes
up the application and decides by 2/3 majority of its
members present and voting to admit or not.
The assembly cannot make a decision to admit an applicant
state unless the Council has made a favorable
recommendation
Once approved by the Assembly- membership becomes
effective
UN now has 193 members.
Suspension
Only Member against which preventive or enforcement action has been
taken by the Security Council may be suspended from the exercise of
the rights and privileges of membership.
Suspension is not from membership
To effect such suspension
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Action by the Security Council and General Assembly is
required
Council should recommend has to be approved by the
General Assembly by 2/3 of its members present and
voting
Restoration of rights
Action by the Security Council alone is required.
Rights and Privileges affected by suspension
Rights of representation
Voting
Holding office in organs of the UN
Nationals of the suspended member serving in the ICJ or in the Secretariat-
not affected
Expulsion
A member may be expelled when it has persistently violated the principle
contained in the Charter
To effect expulsion
Upon recommendation of the Security Council to the General
Assembly and the latter’s approval
2/3 majority of the members present and voting of the
Assembly
Affirmative vote of 9 of its members + concurring votes of all
permanent members
Withdrawal from membership
Charter of the UN does not contain any provision with respect to
withdrawal of its members
It is the highest duty of the Members to continue their cooperation within
the Organization for preservation of international peace and security
largely to prevent the threat of withdrawal from being used as a form of
political blackmail, or to evade obligations under the Charter, similar
to withdrawals that weakened the UN's predecessor, the League of
Nations
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
But a Member cannot be compelled to remain if it felt
constrained to withdraw because of exceptional
circumstances
Unable to maintain peace
If rights and obligations of a member were
changed by a charter amendment in which such
member could not accept
Financial obligations of Members
Every member of the UN has to bear its corresponding share in the
expenses of the Organization
Budget and expense appropriation is approved by the General Assembly
If a Member is in arrears in payment of its contributions
Gen. rule: Shall have no vote in the Assembly if amount
equals or exceeds the amount of the contributions due
for the last 2 years
Exception: failure to pay was due to conditions beyond
control of the Member
Expenses of the Organization
Are amount paid out to defray costs of carrying out the
purposes of the Organization
Legal Personality and Immunities of the Organization
Legal capacity of the UN
Art. 104- Provides that the Organization shall enjoy in the territory of its
Members such legal capacity as may be necessary for the exercise of
its functions and the fulfillment of its purposes.
Legal Capacity to
Contract
Acquire and dispose of immovable and movable property
Institute legal proceedings
The UN as an international person
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Art. 104 relates to the legal capacity of the UN in private law but not that
of its international legal personality.
However, there are provisions in the Charter which indicate its capacity to
operate as a subject of international law.
Authority to conclude international agreements with States
or with international organizations
Like where the Council may negotiate and
conclude agreements with Member States
where the latter would make available to the
Council, on its call, armed forces, assistance, and
facilities necessary for the purpose of
maintaining international peace and security.
The UN is a subject of international law and capable of possessing
international rights and duties, and has the capacity to maintain its
rights by bringing international claims.
Based on its capacity to conclude agreements with Member
States which showed that it occupied a position in
certain respects in detachment from its Members.
That it could operate only upon the international plane and
as between parties possessing international personality.
Privileges and Immunities of the Organization
Art. 105 provides that the Organization shall enjoy in the territory of its
members such privileges and immunities as are necessary for the
fulfillment of its purposes.
These are found in the Convention on the Privileges and Immunities of the
UN of 1946.
Property and assets of the UN enjoy immunity from every
form of legal process
Search
Requisition
Confiscation
Expropriation
Any other forms of interference whether by
executive, administrative or legislative action.
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
The premises and archives of the UN, and its documents
owned or held, are inviolable
UN may hold funds, gold or currency of any kind and operate
accounts in any currency, and may
Transfer them to another country
To convert any currency held by it into another
currency
The UN, its assets, income, and other property are exempt
from all direct taxes, custom duties, and prohibitions and
restrictions on imports
As long as it is for its official use
GENERAL ASSEMBLY
A deliberative, overseeing, reviewing and criticizing organ
Each member of the United Nations are entitled to not more than five
representatives.
What can it do?
Discuss any matter within the scope of the Charter of relating
to the powers and fucntions of any organ of the United
Nations
Address recommendations to the Members of the UN or the
Security Council or both
Consider general principles of cooperation in the
maintenance of international peace and security:
Issues on disarmaments and make
recommendations on it
Those relating to maintainance of peace and security
brought before it by any State or by the Security
Council
May make recommendations on situations which are
likely to endanger international peace and
security
Recommend measures for the peaceful adjustment
of any situation, regardless of origin
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Initiate studies and recommendations to encourage
progressive development and codofication of
international law
Promote international cooperation in the political, economic,
social cultural, educational and health fields
Assist inthe realization of human rights and fundamental
freedoms
ALL OF THESE ARE SUBJECT TO ONE EXCEPTION: It may not
make recommendations on a dispute or situation which
is being dealt with by the Security Council under its
primary responsibility for maintaining international
peace and security
It also performs functions relating to organizational,
administrative and fiscal matters:
Receives reports from other organs of United
Nations
Approves the budget of the Organization and
apportions expenses among Members
Elects non-permanent members of the Security
Council, the Economic and Social Council and
some of the Trusteeship Council
Elects judges of the International Court of Justice,
concurrently with the Security Council
Appoints the Secretary- General upon
recommendation of the Security Council
Meets in regular session once a year but special sessions may
also be called by the Secretary General at the request of
the Security Council or majority of the Members
Voting Requirements:
Each Member has one vote
On important questions: 2/3 majority of the
members present and voting
Important questions: those concerning
peace and security, membership,
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
elections, the trusteeship system and
budget
Questions other than these are decided by simple
majority
GENERAL ASSEMBLY
The General Assembly is the central organ of the United Nations, where
every nation can speak up and be heard on any matter. All the members of
the United Nations are represented in it. Each country’s vote carries equal
weight. Important questions are decided by a two-thirds majority vote.
2. ) SECURITY COUNCIL
The organ entrusted with the primary responsibility for the
maintenance of international peace and security
Membership:
15 members, 10 of which are non-permanent members
elected to two-year terms by the General Assembly,
remaining five have permanent seats:
China
France
United Kingdom
Soviet Union
United States
Non-members are allowed to participate in the discussion of
any questions before the Council, but not vote
Unlike the general assemby , the security council is designed
to funtion continuously such that each country maintain
a representative available in residence at the
headquarters of the UN
Each member of the Security Council has one vote
Decisions on important matters are taken by an
affirmative vote of any nine members
Other matters require a qualified majority; the
affirmative vote of of nine members including
the concurring votes of permanent members
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In the event that the council had to determine whether it was
procedural or not, the decision had to be taken by the
decision of the members to continue
No decision can be made if a member abstains or becomes
absent
Each permanent member can exercise a sort of “veto”on
decisions relating non-procedural matters since it can
block actions by a negative vote
In case a permanent member is absent, it has the same legal
effect as an abstention
SECURITY COUNCIL
The Security Council was designed to be the main guardian of world peace.
While the General Assembly can discuss any world concern, the Security
Council deals only with questions of peace and security. All the members
of the UN have agreed to accept the decisions of the Security Council and
to carry them out.
ECONOMIC AND SOCIAL COUNCIL
A central policy-making and coordinationg body
Membership:
Composed of 27 members elected in groups of 9 by the
General Assembly for 3-year terms
Retiring members are eligible for immediate re election
Decisions are made by a majority vote of those present and voting
The council is required to invite any member of the United Nationss
not represented on the council to participate, w/o vote, in its
deliberations on any question “of particular concern”
May make arrangements for representatives of specialized agencies to
participate, without vote in its deliberations
Holds two regular sessions each year, and may hold special sessions if
the need arises
Functions:
Entrusted with the responsibility, under the authority of the
General Assembly, for the dischatge of the functions of
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
the United nations in the economic, social and human
rights fields.
Initiates studies, makes recommendations and reports with
respect to international economic, social, cultural,
educational, health and related matters
Such as issues concerning women, statistics,
transport and communications, social welfare,
population, and narcotic drugs
Organize committees related to it
Negotiates individual agreements with intergovernmental
agencies, defining the terms on which theyare brought
into relationship with the UN specialized agencies
Coordinates the agencies’ activities
ECONOMIC AND SOCIAL COUNCIL
The Economic and Social Council is called ECOSOC for short. It coordinates
the major specialized agencies and institutions, and is concerned with
economic problems, such as trade, transport, industrialization and
economic development and social issues, including population, children,
housing, women’s rights, racial discrimination, narcotic drugs, crime, social
welfare,
children, human environment and food. The council has 54 members, who
serve for three-year terms. Voting in the Council is by simple majority;
each member has one vote
The Trsteeship Council
Membership:
1 member of the UN which are administering trust territories
Those permanent members of the Security Council which are
not administering any trust territories
As many additional members elected to a three-year term by
the GA as are necessary to ensure total memership of the
Council is wqually divided between members of the UN
which administer trust territories and those who do not
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Holds two regular sessions per year, and special sessions when
necessary
Each member has one vote. Decisions are made by a majority of those
present and voting
Functions:
Considers annual reports submitted by the administering
authorities of the trust territoresin response to questions
drawn by the council
Provides for periodic visits to the territories
Examines petitions in consultation with the administering
authorities concerned
In “strategic areas”, the Trusteeship Council assists the
Security Council in carrying out trusteeship functions
relating to political, economic, social and educational
matters
THE TRUSTEESHIP COUNCIL
When the United Nations began, there were some parts of the world
where the people could not choose their own governments. Those
areas were placed under special protection of the United Nations and
were called Trust Territories. With the last Trust
Territory—Palau, formerly administered by the United States—having
achieved self-government in October 1994, the
Council has formally suspended operations after nearly half a century. It
will meet only on an extraordinary basis, as the need arises.
The Secretariat
The chief administrative agency of the United Nations headed by the
Secretary-General
5-year term of office
Appointed by the General Assembly upon recommendation
by the Security Council
His nomination is subject to the veto in the Security Council
The Secretary-General:
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
Responsible for the appointment of the staff for the
organization of the whole Secretariat
Including the staff are international civil servants,
forbidden to seek or receive instruction from
any government or from any source outside the
UN
Acts “in that capacity” at all meetings of the General
Assembly, the Security Council, the Economic and Social
Council and the Trusteeship Council
Performs other functions such as making annual report to the
GA on the organization’s work
Also has the right to political initiative
Right to bring the attention of the Security Council
any matter which in his opinion may threaten
international peace and security
Avoid public stands on conflicts between Member
nations unless and until such action might help
to resolve the conflict
INTERNATIONAL COURT OF JUSTICE
The International Court of Justice is the main UN organ for handing down
legal judgments. Only countries, not individuals, can take cases before the
Court. Once a country agrees to let the Court act on a case, it must abide
by the Court’s decision.
_____________________________________________________________
Settlement of International Disputes
Pacific Settlement of Disputes
Dispute
It is a disagreement on a point of law or fact, a conflict or legal views or of
interests between two persons (The Mavrommatis Palestine Concessions,
Greece vs. Great Britain, August 30, 1924)
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State sues in behalf of its nationals against another state. Does this
involve an international legal dispute?
Yes, as answered in the affirmative in Greece vs. Great Britain, which
involves Greece, claiming from the government of Great Britain an
indemnity on the ground that M. Mavrommatis, one of its subjects, has
been treated by the British authorites in a manner incompatible with
certain international obligations which they were bound to serve.
What is the role of the UN in the settlement of international disputes?
Art. 33 of the charter calls for peaceful settlement of disputes by
negotiation, enquiry, mediation, conciliation, arbitration, judicial
settlement, resort to regional agencies or arrangements, or other peaceful
means of their own choice
May a State which is not a member of the UN bring a dispute to the
attention of the Security Council or of the General Assembly?
Yes, provided that:
• It is a party to the dispute
• It accepts in advance, for the purposes of the dispute, the obligations
of pacific settlement provided in the Charter
The various methods of peaceful settlement of disputes:
• Negotiation
– A process of bargaining between two parties in search of a
solution of dispute
• Enquiry
– Method of calling the parties concerned to explain their
position on a dispute, and may attempt to narrow their
differences, reconcile their opposing views, and if necessary
recommend a just and fair solution
• Good offices
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
– Entrusting the dispute to personalities with special
qualification on whom both parties agree
• Mediation
– An adjunct of negotiation, but with the mediator as an active
participant, authorized, and even expected, to advance his
own proposals and to interpret, as well as to transmit, each
party’s proposals to each other
• Conciliation
– Combination of enquiry and mediation; conducted by an
organization or by a group of States
• Arbitration
– Quasi-judicial method; parties to a dispute invite another
entity to resolve it for them, but also allows the parties to
constitute and to operate their own court
• Judicial Settlement
– Decision by a Court
Forcible Measures Short of War
1. Severance of Diplomatic Relations which may take place (1) To mark
severe disapproval of a State’s conduct; (2) To influence the offending
party State to remedy the consequences of some unfriendly or illegal
act (3) To serve notice on the other State that the issue between them
has reached a point where normal diplomatic intercourse is no longer
possible and that sterner measures might possibly follow. Suspension
of Relations has been used to denote a less drastic step than complete
severance of diplomatic ties. It involves withdrawal of diplomatic
representations, but not the severance of consular relations. There is
no breach of international law because there exists no obligation to
maintain diplomatic intercourse with the other States, thus, severance
of an existing relation does not tantamount to breach of international
law.
2. Retorsion consists of an unfriendly, but not international illegal act of
one State against another in retaliation for the latter’s unfriendly or
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inequitable conduct. It does not involve the use of force. States
resorting to retorsion retaliate by acts of the same or similar kind as
those complained of. It is resorted to by States usually in cases of
unfair treatment of their citizens abroad.
3. Reprisals is any kind of forcible or coercive measures whereby one
State seeks to exercise a deterrent effect or to obtain redress or
satisfaction, directly or indirectly, for the consequences of the illegal
acts of another State, which has refused to make amends for such
illegal conduct. The criteria for legitimacy of a reprisal: (1) That the
State against which reprisals are taken must have been guilty of a
breach of international law; (2) That prior to recourse to reprisals an
adequate attempt must have been made, without success, to obtain
redress from the delinquents State for the consequences of its illegal
conduct; and (3) That the acts of reprisals must not be excessive.
There are 2 kinds of reprisals. First is the form of self- help which is
resorted to for the purpose of settling a dispute or redressing a
grievance without going to war, consequently no state of war exists
between the State resorting to reprisals and the State against whom
such acts are directed. Second is the kind taken by belligerents in the
course of war the purpose of which is to compel a belligerent to
observe or desist from violating the laws of warfare; it presupposes,
therefore, the existence of a state of war between the parties
concerned. The difference between reprisal and retorsion is that the
former consists of acts which would ordinarily be illegal and is
generally resorted to by a State in consequence of an act or omission
of another State which under the international law constitutes an
international delinquency. On the other hand, retorsion Consists of
retaliatory conduct which is legitimate or is not in violation of
international law and are acts which give rise to retorsion though
obnoxious do not amount to an international delinquency. Different
forms of reprisals are military occupation, display of force, naval
bombardment, seizure of ships at sea, seizure of properties of
nationals of the delinquent State, freezing of assets of its citizens,
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
embargo, boycott and Pacific blockade. Letters of Marque or Special
Reprisals are act of a State granting their subjects who could not
obtain redress for injury suffered abroad, authorizing them to perform
acts of self-help against the offending State or its nationals for the
purpose of obtaining satisfaction for the wrong sustained.
4. Embargo (Sequestration/ Hostile Embargo) This is originally a form of
reprisal consisting of forcible detention of the vessels of the offending
State or of its nationals which happened to be lying in the ports of the
injured or aggrieved State. Later, the practice was extended to such
vessels also as were seized in the high seas, or even within the
territorial waters of the offending State. Vessels sequestered are not
considered condemned or confiscated, but must be returned when
the delinquent State makes the necessary reparation. First kind of
embargo is Civic or Pacific employed by a State to its own vessels
within its national domain or of resources which otherwise might find
their way into foreign territory. Another kind is Embargo by a group of
States directed against an offending State which may be further
classified into collective embargo on import or export of narcotic
drugs and collective embargo by way of enforcement action against
the UN Charter.
5. Boycott is a comparatively modern form of reprisal which consists of a
concerted suspension of trade and business relations with the
nationals of the offending State.
6. Non-intercourse consists of suspension of ALL commercial intercourse
with a State. A complete or partial interruption of economic relations
with the offending State as a form of enforcement measure.
7. Pacific Blockade is a naval operation carried out in time of peace
whereby a State prevents access to or exit from particular ports or
portions of the coast of another State for the purpose of compelling
the latter to yield to certain demands made upon it by the blockading
State. Third States do not acquire the status of neutrals because there
is not belligerency between the blockader and the State. Quarantine is
the right to stop and search vessels of third States suspected of
97 | P a g e
carrying specified cargo to the “quarantined” State has been asserted
by the blockading State. (e.g. Cuban Quarantine). Blockade may no
longer be resorted to by States Members as a measure to self-help. It
may only be used collectively by or on behalf of the UN as an
enforcement action under Art 41 of the UN Charter.
8. Collective Measures under the Charter is a system of peace
enforcement under the UN Charter. It envisages the employment, if
necessary, of compulsive measure to maintain or restore peace. These
measures may or may not involve the use of armed forces. The
enforcement provisions of the Charter are brought into play only in
the event that the UN Security Council (SC) determines, under Art. 39,
that there exists a “threat to peace, a breach of the peace, or an act of
aggression.” Article 41, UN Charter provides that the SC may decide
what measures not involving the use of armed forces are to be
employed to give effect to its decisions, and it may call upon the
Members of the UN to apply such measures. These may include
complete or partial interruption of Economic relations and of rail, sea,
air, postal, telegraphic, radio, and other means of communication; and
severance to the diplomatic relations. Article 42, UN Charter provides
that should the SC consider that measures provided for in Article 41
would be inadequate or have proved to be inadequate, it may take
such action by air, sea, or land forces as may be necessary to maintain
or restore international peace and security. Such action may include
demonstrations, blockade and other operations by air, sea or land
forces of Members of the UN.
War
Oppenheim:
A contention between two or more states through their armed forces, for
the purpose of overpowering each other and imposing conditions of peace
as the other pleases
Moore:
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
A relation of one and more governments to at least one other government,
in which at least one of such government no longer permits its relations
with the other or others to be governed by the laws of peace.
-In municipal law, a state of war may exist even where there is no war in
the international sense.
Legality of war
 For centuries, State had the liberality not only to resort to war but to
determine for themselves the occasion in which recourse to war
appeared justified.
 Therefore, every war was lawful, regardless of its cause or
justification.
 Grotius
- Tried to develop a doctrine in international law which a state can
only wage war for just cause. But his attempt was not widely
accepted.
 Covenant of the League of Nations
st
 Made the 1 serious attempt to restrict the right to make war.
 it did not outlaw war, but merely laid down the procedural
checks on the right to resort war
 the Members of the League agreed that if there should be war
between them, they should submit the matter to arbitration or
judicial settlement or to enquiry by the Council.
 Pact of Paris or Kellogg Briand Pact
 The parties to these treaty solemnly condemned recourse to war
for the solution of international controversies.
 But resort to war still remained lawful if:
1. Self-defense
2. As means of enforcing international obligations, since the pact
made reference only to war as an instrument of national policy
3. Between parties and non-parties to the pact.
4. Against a party violating the pact.
 Charter of the United Nations
 Prohibits war and the use of force or threat
 They settle international disputes by peaceful means
 They only allow war if:
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1. Individual or collective self-defense IF the Security Council has not
taken necessary measure to take forcible action against an
aggressor.
2. Pursuance of a decision or recommendation of the Security
Council
Laws of war
 There are rules in international law relating to the proper conduct of
belligerents towards each other in the course of war.
 These rules have evolved gradually through custom and treaties
became legally binding on the civilized community of States. Although
the war became milder compare to those of earlier times, the
practices were still barbarous by modern standard. No attempt was
made to codify the usage of war or embody them in international
th
conventions until the second half of the 19 century.
 The most substantial effort to formulate the laws of war took place at
the First Hague Conference.
 This is elaborated further in Second Hague Conference
 However, the effectiveness of some of the Hague conventions seemed
to be weakened by the incorporation of so called “general
participation clause.”It made the convention binding to the parties
only but since most rules of warfare embodied in the Hague
Conference were declaratory of the existing laws and customs of war,
those rules would remain operative even if the conventions should
not be binding on the belligerents.
 Between First and Second World Wars the following convention were
adopted:
1. The Protocol of 1925 concerning the use of asphyxiating,
poisonous and other gases.
2. Geneva Convention of 1929 concerning the treatment of the
sick and wounded in armies in the field.
3. London Protocol of 1936 concerning the use of submarines
against merchant vessels.
 1949 conventions
1. Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces.
Public International Law Notes
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2, Convention for the Amelioration of the Condition of the
Wounded, Sick and Shipwrecked Members of Armed Forces.
3. Convention relative to the Treatment of Prisoners of War.
4. Convention relative to the Protection of Civilian Persons in
Times of War.
NOTE: the first three Conventions revision of existing convention
and all of them does not contained the so-called “general
participation clause.”
 Have the rules of war become obsolete because war is already
prohibited? NO
 the possibility that armed hostilities, whether called war or by
some other name, might occur should not be overlooked.
 Reason: the rules of warfare are humanitarian in conception
and purpose; they operate to temper the suffering and
destruction that are the inevitable concomitants of war,
regardless of its legality or illegality. Furthermore, it does not
only apply to war alone but to all armed conflicts
 Sanctions for non-observance on the rules of war.
1. Reprisal- when one belligerent retaliates upon another by means
of otherwise illegitimate acts of warfare in order to compel him to
abandon illegitimate act of warfare and to comply in the future
with the rules of legitimate warfare.
2. war crimes -includes acts contrary to international law
perpetrated by the offender in violation of the criminal laws of his
State.Example: torture of prisoners of war, inhumane treatment,
wanton destruction of cities, town or villages, and Genocide
3. Protest – protest are usually sent to the enemy forces. Such
protests are usually sent to the enemy under a flag of truce or
through neutral channels.
4. Compensation-payment by a belligerent for violations committed
by its armed forces.
Commencement of War
 It is customary practice to notify an intended war by letter of defiance
th
or by herald, but the practice fell into disuse towards the 16 century.
99 | P a g e
 Second Hague Conference 1907 – the parties are ought not to
commence war without “previous and unequivocal” warning. It may
take form either of
a.) declaration of war or
b.) an ultimatum with a conditional declaration of war.
 Declaration of War- a communication by one State to another
informing the latter that the condition of peace between them has
come to an end and a condition of war has taken place.
 Ultimatum- a written communication by one State to another Sate
with condition
 In international law, war commences
1. Upon communication of a declaration
2. Upon the commission of an act of force by one party done animo
belligerende, or even if that party had no such intent, if the other
party elects to treat the act of force as having been done with
such intent
Effects of War
A. Effects of the Outbreak of War
 The following are the effects produce from the outbreak:
1. Rupture of diplomatic relations and termination of consular
activity- the most immediate effect. It breaks diplomatic relations
2. Effect on enemy persons
3. Effect of war on enemy property
4. Prohibition of trading and intercourse in war.
5. Effect of war on contracts
B. Effect of war on enemy persons
 International law leaves each belligerent free, within the limits, to
designate the persons whom it will treat as having enemy character.
 Tests in determining enemy character of natural persons.
1. Territorial test -enemy character depends on the residence or
domicile of the person concerned. It is an Anglo-American practice.
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
Any individual residing or domiciled in enemy territory is vested with
enemy character.
2. Nationality test- the subjects of the belligerent are deemed enemy
persons regardless of where they are.it is a continental practice.
 Protection of Civilian Persons in Time of War- provides that enemy
aliens in the territory of a belligerent who desire to leave either at the
outset or during the war shall be entitled to do so unless their
departure is contrary to the interest of such belligerent. They are
permitted to receive individual or collective relief, to obtain medical
and hospital treatment to the same extent as the nationals of the
belligerent, to receive religious comfort and to leave areas exposed to
the danger of war to the extent permitted to nationals. They may not
be compelled to do work, directly related to the conduct of military
operations and if compelled to do other work, must be given the same
conditions and safeguards as national.
In case of internment, the detaining Power is under the obligation:
1. To provide for the internees’ safety and welfare
2. To furnish adequate food and clothing
3. To provide family accommodations with due privacy and
facilities
4. To provide facilities for religious, intellectual and physical
activity
5. Permit the use of their personal properties and financial
resources.
6. To permit a degree of communication with the outside world.
7. To refrain from excessive or inhuman penal and disciplinary
measure.
8. To make transfer only in humane manner.
9. to record and duly certify deaths and to inquire into deaths
other than from natural causes.
10. Release internees when the reasons for internment ceases or
when hostilities terminate.
 With respect to the capacity of enemy persons to sue or be sued in the
courts
- Formerly, the rule was that an enemy subject was ipso facto by
the outbreak of war prevented from either taking or defending
proceedings in the courts of the belligerent.
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C. Effect of war on enemy property
 In general, goods belonging to enemy persons are considered enemy
property.
 Anglo-American practice
- Domicile in enemy country makes an individual bear enemy
character, all goods belonging to him are considered enemy
goods.
 Continental practice
- the nationality of the owner of the goods is the deciding factor.
 As regards a vessel, the rule is that their character is determined by
their flag.
o There instances that a vessel carrying a neutral flag acquire
enemy character. Like if takes part in the hostilities.
 As to public property, movable or personal, a belligerent can
confiscate it.
 As to private property, outright confiscation to requisition or custody
pending determination of the fate of the property under the peace
treaty.
D. Effects of War on trading and intercourse
 Trading are prohibited between opposing belligerent through
legislation
o Example the British Trading with the Enemy Act of 1941
where the main purpose was to prohibit transactions which
would benefit the enemy
E. Effects of War on Contracts
 International law leaves each belligerent free to regulate this matter
by his own domestic law.
 Generally, any contract that gives aid to the enemy or necessitates
intercourse with enemy person is void.
Land Warfare
Public International Law Notes
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During the ancient times and the Middle Ages, no distinction was drawn
between combatants and civilians. War was deemed a contention between
the whole populations of the belligerent Sate.Today, however, war is only
between States
 The belligerent today is bound to respect life while the civilian
population must not commit acts of violence.
 Doctrine of military necessity- a belligerent is justified in resorting to
all measures which are indispensible to bring about the complete
submission of the enemy, as soon as possible, by means of regulated
violence not forbidden rules of war.
 Combatants- are persons who usually belong to the armed forces. It
includes the army, navy and air forces. Every combatant may be killed
or wounded as long as he is able and willing to resist capture. If they
are captured, they are entitled to treatment as prisoner of war.
 Medical personnel and chaplains that are captured are not to be
considered as prisoner of war, although they are entitled to the
benefit from 1949 Geneva Convention
 Irregular forces such as militia and volunteer corps may be considered
as lawful combatant and entitled to the same benefit from 1949
Geneva Convention
 Non-privileged combatants- individuals who take up arms or commit
hostile acts against the enemy without belonging to the armed forces
or forming part of irregular forces which did not comply with the
Hague Regulations are not entitled to protection to lawful combatants
under international law
Means and mode of violence
The right to overpower the enemy State in not unlimited.It is still subject
to the basic rules of warfare. The purpose of which is to minimize suffering
and destruction. For example, poisoning of water or food is not
allowed.The technological changes however has made the traditional rules
of warfare, such as the use of atomic bombs
 Assault, siege and bombardment are in themselves perfectly
legitimate.
 However, all buildings devoted to religion, art, science and charity,
and historic monuments, hospitals and all other places where the sick
101 | P a g e
and wounded are collected provided that they are not used at the
same time for military purposes MUST be spared.
 Destruction of enemy property-
 Universal rule now is that all useless and wanton destruction of enemy
property, whether public and private, is prohibited
 Seizure of enemy property and booty of war
 - Booty of war- movable property captured on the field of battle. It
can be seize by the belligerent. This is still the rule concerning to the
public property.
 Private property cannot be seized except military papers, arms,
vehicles…
 Treatment of the wounded the sick and the dead- this regulated by
conventional rules, such as the Geneva convention for the Relief of the
Wounded and Sick of Armies in the Field
 Rules: Belligerents have the general duty to respect and protect
wounded an sick personnel of the armed forces. Belligerents are also
under the obligation not to leave the sick and wounded without
medical assistance or care or to create conditions exposing them to
contagion or infection. They are also obliged to respect and protect
medical units and establishments that normally care for personnel
except when they are used to commit acts harmful to the enemy.
 the following categories of persons who fall into the hands of
the enemy must be treated as prisoner of war:
1. Members of the armed forces
2. Members of militias and other volunteer groups
3. Members of regular armed forces professing allegiance to a
government not recognize by capturing state.
4. Persons accompanying an army unit such as civilian members of
military aircraft crew/ members of the crew if merchant vessels
and civilian aircraft.
5. 6. Member of the population of non-occupied territory who take
up arms as a levee en masse against invading army.
6. Generally, the prisoner of war must be treated humanely
Status of Guerillas and Spies
They may be considered as prisoners of war if:
A.) they are commanded by a person responsible for his
subordinates
Public International Law Notes
Year II, Section GO2, DLSU LAW SY 2011-2012
B.) that they have fixed distinctive sign
C) They carry arm openly
D.) conduct military operation in accordance with the law and
custom or war
 Spies- the international law leaves their fate to the captor’s
discretion.
Naval warfare
The naval forces of the belligerents may operate anywhere in the high
seas, the territorial waters of either belligerent or in its inland lakes and
waters.Naval operations are forbidden in neutral territorial waters and in
neutralized waters such as the Suez Canal or the Panama Canal.
Attack and Seizure of Enemy Vessels
All enemy vessels, whether public or private, are liable to capture and
condemnation. Enemy men of war and other enemy public vessels
encountered by a belligerent’s men of war on the high seas or within the
territorial waters of either belligerent may be attacked immediately
without preliminary visit or demand or surrender.
 Enemy merchant vessels, on the other hand, may be attacked only if
they refuse to submit after having been duly signalled to do so.
 Seizure
 Is effected by securing possession of the vessel through the
sending of the captor of an officer and some members of its
own crew on board the captured vessel.
 An act of final appropriation of the vessel by the capturing
state. On the other hand, seizure of a private vessel does not
vest the property finally in the capturing State.
 The vessel must be brought before a Prize Court which, by
adjudication, makes the appropriation by captor final
Vessels exempt from attack or capture:
1. Hospital ships
2. Cartel ships fulfilling such missions as carrying exchanges prisoners of
wars
102 | P a g e
3. Vessels engaged in mission of religious, scientific or philanthropic
character
4. Boats exclusively employed in coastal fishing or small boats engaged in
local trade
5. Enemy merchant vessels in the ports of the other belligerent at the
outbreak of hostilities or encountered at sea, ignorant of the outbreak
hostilities.
Converted Merchant and Defensively Armed Merchant Ships
 The Hague Convention of VII of 1907 laid down the requirements for
the conversion of merchant ships into auxiliary naval ships
1. The vessel must be placed under the direct authority,
immediate control and responsibility if the State whose flag it
flies
2. Bear the external distinguishing marks if the warship of their
nationality
3. Be commanded by an officer in the service of the State
4. Be manned by a crew subject to military discipline. Observe
the laws and customs of war.
Submarine Warfare
 Submarines must conform to the rules to which surface vessels are
subject in their action with regard to merchant ships
◦ Surface vessel or submarine may not sink or render incapable
of navigation without having first placed the passengers and
crew as well as the ship’s papers in a place of safety.
The Use of Mines
 The Hague Convention No. VIII of 1907
◦ Laying of automatic submarine contact mine forbids the
laying of unanchored automatic contact mines which remain
alive for more than an hour after control of them is lost
◦ The use of torpedoes which do not become harmless when
they miss the mark is also forbidden
Treatment of the Wounded and Shipwrecked
Public International Law Notes
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 1949 Hague Convention
◦ All member of the armed forces and persons assimilated to
them who are at sea and who are wounded, sick, or
shipwrecked must be respected and protected in all
circumstances
◦ “shipwrecked” includes forced landings at sea by or from
aircraft
◦ While they enjoy the protection of the Convention, they are
not immune from capture.
 If wounded, sick or shipwrecked personnel are taken on board, a
neutral warship or neutral military aircraft; it is to be ensured that
they shall take no further part in the operations.
 The same procedure and exemption from capture apply to hospital
ships utilized by national Red Cross Societies or officially recognized
relief societies or by private persons To be entitled to protection.
Hospital ships must not be used for any military purpose, nor allowed
to hamper the movements of combatants in any manner
Naval Bombardment
 Bombardment of “undefended” ports, towns, villages, dwellings or
other buildings by naval forces is under all circumstances prohibited.
Air Warfare
The experience of First World War showed the inadequacy of the existing
rules and the need for an agreed regulation of this new weapon of
warfare. Washington Conference of 1922
a. Limitation of Armaments
b. The draft code sought to lay down the rule that aerial
bombardment was legitimate only when directed “at a military
objective”
 The draft code further prohibited aerial bombardment “for the
purpose of terrorizing the civilian population, of destroying or
damaging private property not of a military character or of injuring
non-combatants”
 The draft code, however, never came to be adopted.
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 In Word War II, air power became vital in economic warfare, in
disrupting lies of supply of communication, in destroying the enemy’s
industrial potential and morale and ultimately its capacity and will to
resist. It revolutionized the technique and methods of warfare
 However, as war progressed, indiscriminate bombings were carried
out in extensive scale by the belligerents.
Regulation of Bombardment
 Article 25 of the Hague Convention prohibits the bombardment of
undefended towns, villages, habitations or buildings.
 Exception: “Open City”
◦ The city should be open to the grasp of the attacker’s land
forces by leaving it undefended.
 Civilians do not enjoy absolute immunity and their presence will not
render military objectives immune from attack merely because it is
impossible to bomb such objectives without causing injury to them.
Non-Hostile Intercourse Between Belligerents
 Passport
◦ A written permission given by the belligerent to enemy
subjects allowing them to travel within the territory or within
enemy occupied territory.
 Safeconduct
◦ A written permission given by a belligerent to enemy subjects
allowing them to proceed to a particular place for a defined
object.
◦ May also be given for ships and goods
 Safeguard
◦ Applies either to enemy persons or to enemy property and
usually consists of written order addressed to the
commander of the armed forces of the grantos, charging him
with the protection of the individual or the property
concerned.
License to Trade
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Year II, Section GO2, DLSU LAW SY 2011-2012
 A belligerent may grant a license to its own subjects to trade with the
enemy persons, or to certain enemy subjects within its own territory
or within enemy territory occupied by it.
Cartels and Cartel Ships
 Cartels are agreements between belligerents concluded for the
purpose of permitting certain kinds of non hostile intercourse
between them which would otherwise be prevented by the war
Flags of Truce
 The white flag has become the traditional symbol of an armed unit
wishing to negotiate with the enemy
 Hague Conventions provide that the bearer of a flag of truce and those
who accompany him are inviolable.
 They may not be taken prisoners and must be allowed to return safely
to their lines.
 Abuse of the flag is also forbidden and may be met with reprisals.
Suspension or Termination of Hostilities
 Suspension of Arms
◦ An agreement between the local commanders of military or
naval forces for the cessation of hostilities for a short time
◦ Purpose: removal of the wounded, burial of the dead and the
like
 Armistice
◦ Includes all the agreements between belligerents for a
cessation of hostilities
◦ Agreements of no longer duration and more comprehensive
purpose than suspension of arms which is a term used to
designate brief suspension of hostilities for certain specific
purposes.
 Cease-fire
◦ Entails stopping of military advances and cessation of actually
firing, a “freezing” of the prevailing military situation
◦ Abatement of hostilities with no strings attached.
 Truce
◦ Agreement for an abatement or brief suspension of hostilities
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◦ Cessation of hostilities coupled with a set of conditions
 Capitulation
◦ To designate agreements for the surrender of a town or
fortress or the surrender of a body of troops operating within
a particular district.
Termination of War
 By simple cessation of hostilities without the conclusion of a formal
treaty or peace.
 By subjugation of one belligerent by the other
◦ Takes place after complete annihilation of the forces of the
belligerent followed by the formal annexation by the enemy
of its territory and the extinction of its sovereignty
 By treaty of peace
 By unilateral declaration
_____________________________________________________________
International Humanitarian Law
Definition
 Set of rules which seek to limit the effects of armed conflict.
 Protects persons who are not or are no longer participating in the
hostilities and restricts the means and methods of warfare.
 AKA the law of war or the law of armed conflict. Part of international
law.
International Humanitarian Law is not the same as Internal Human Rights
Law
 Two distinct but complementary bodies of law
 Both seek to protect the individual from arbitrary action and abuse,
with a view to safeguarding the fundamental rights of the individual
 International Human Rights Law: cover all aspects of life, applies to all
persons in all circumstances, except in emergency cases where
derogation from rights is allowed
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 International Humanitarian Law: socialized form of International
Human Rights Law; Warfare; “across the frontline”
History
 Signed by 16 countries in 1864
 From five citizens of Geneva.
 Henry Dunant by chance, witnessed the battle of Solferino in 1859.
Appalled by the lack of help for the wounded and organized local
residents to come to their aid.
 Out of this act came one of the key elements of the first convention –
the humane treatment of those no longer part of the battle,
regardless of which side they were on.
 The Geneva Convention
 In 1899 and 1907, the Hague Conventions.
 In August 1949, the four Geneva Conventions as we know them today
were adopted
 Protocols were added to the Geneva Conventions in 1977 and 2005,
 The International Committee of the Red Cross is regarded as the
“guardian
 It cannot, however, act as either policeman or judge. These functions
belong to governments, the parties to international treaties
 There are currently 194 countries party to the 1949Geneva
Conventions, including this fourth treaty but also including the other
three.
Core Protection
 Soldiers who surrender or who are hors de combat
 The wounded and sick
 Captured combatants
 Civilians under the authority of a party to the conflict or an occupying
power of which they are not nationals
 Everyone must be entitled to benefit from fundamental judicial
guarantees.
 Parties to a conflict and members of their armed forces do not have an
unlimited choice of methods and means of warfare.
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 Parties to a conflict must at all times distinguish between the civilian
population and combatants in order to spare civilian population and
property.
Sources of International Humanitarian Law
Geneva Convention
st
 1 Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, 1864
nd
 2 Geneva Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea,
1906
rd
 3 Geneva Convention relative to the Treatment of Prisoners of War,
1929
th
 4 Geneva Convention relative to the Protection of Civilian Persons in
Time of War, 1949
Protocols- The 1949 conventions have been modified with three
amendment protocols:
 Protocol I (1977) relating to the Protection of Victims of International
Armed Conflicts
 Protocol II (1977) relating to the Protection of Victims of Non-
International Armed Conflicts
 Protocol III (2005) relating to the Adoption of an Additional Distinctive
Emblem.
Additional agreements that prohibit the use of certain weapons and
military tactics and protect certain categories of people and goods. These
agreements include:
 1954 Convention for the Protection of Cultural Property in the Event
of Armed Conflict, plus its two protocols;
 1972 Biological Weapons Convention;
 1980 Conventional Weapons Convention and its five protocols;
 1993 Chemical Weapons Convention;
 1997 Ottawa Convention on anti-personnel mines;
 2000 Optional Protocol to the Convention on the Rights of the Child on
the involvement of children in armed conflict.
Others: Hague Law
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Martens Clause
 Found in the preamble to the 1899 Hague Convention by Fyodor
Martens, the Russian delegate at the Hague Peace Conferences 1899
 “Until a more complete code of the laws of war is issued, the High
Contracting Parties think it right to declare that in cases not included
in the Regulations adopted by them, populations and belligerents
remain under the protection and empire of the principles of
international law, as they result from the usages established between
civilized nations, from the laws of humanity and the requirements of
the public conscience.”
 Introduced as a compromise wording for the dispute between
the Great Powers who considered francs-tireurs (free shooters) to
be unlawful combatants subject to execution on capture and smaller
states who maintained that they should be considered lawful
[
combatants.
 Provides that even in cases not covered by specific international
agreements, civilians and combatants remain under the protection
and authority of the principles of international law derived from
established custom, from the principles of humanity and from the
dictates of public conscience. “
 If Stronger military states refuse to ratify treaties to the development
of customary norms, they may choose to control the content of the
laws of armed conflict. So other states are helpless in prohibiting
certain technology they possess- the Martens Clause establishes an
objective means of determining natural law: the dictates of the public
conscience.
 This makes the laws of armed conflict much richer, and permits the
participation of all States in its development
Conflicts covered by Geneva Conventions
When does international humanitarian law apply?
 Armed conflict
 International armed conflicts
 A war of national liberation
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 Non-international armed conflicts
 not cover disturbances such as isolated acts of violence like riots
(human rights law)
 only once a conflict has begun, and then equally to all sides regardless
of who started the fighting.
 Human rights law –
 applies in peacetime and most of its provisions may be suspended
during an armed conflict
What does international humanitarian law cover?
 who are not, or no longer, taking part in fighting
 restrictions on the means of warfare (weapons,methods of warfare,
such as military tactics)
Basic Limitations on means and methods of warfare
International humanitarian law prohibits all means and methods of
warfare which:
1. Fail to discriminate
2. Cause superfluous injury or unnecessary suffering
3. Cause severe or long-term damage to the environment.
Common Article 3 of Geneva conventions
 States that the certain minimum rules of war apply to armed
conflicts that are not of an international character, but that are
contained within the boundaries of a single country.
 Includes:
 traditional civil wars
 internal armed conflicts that spill over into other States
 internal conflicts in which third States or a multinational force
intervenes alongside the government.
 It grants the ICRC the right to offer its services to the parties to the
conflict.
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 Given that most armed conflicts today are non-international, applying
Common Article 3 is of the utmost importance. Its full respect is
required.
International Criminal Courts
Courts
 International Military Tribunal at Nuremberg
 International Military Tribunal for the Far East
 International Criminal Tribunal for the Former Yugoslavia
 International Criminal Tribunal for Rwanda
 International Criminal Court
General Principles
 International Crime: grave matter of international concern, which
cannot be left within exclusive jurisdiction of the State that would
have control over it under ordinary circumstances
 Nulla poena sine culpa
 Ne bis in idem
 Actus non facit reum, nisi mens sit rea
 Male captus, bene detentus (Eichmann Case)
 Aut dedere aut judicare
 Doctrine of Cumulative Convictions
 Superior responsibility vs. Command Responisbility
Court is the primary judicial organ of the UN which settles legal disputes
submitted by states
6. ICC Funding: Assessed contribution from state parties to the Rome
Statute; voluntary contributions from the U.N.; voluntary contributions
from governments, international organizations, individuals, corporations
and; ICJ Funding: UN-Funded
7. ICC authorizing legal mechanism: Rome Statute; ICJ authorizing legal
mechanism: States that ratify the U.N. Charter become parties to the ICJ
Statute under Article 93. Non-UN member states can also become parties
to the ICJ by ratifying the ICJ Statute. Each state must provide consent to
any contentious case by explicit agreement, declaration, or treaty clause.
8. If the country you belong is part of the UN you may go directly to ICJ and
if you are not go to ICC for further proceedings.
9. ICC type of cases: criminal prosecution of individuals; ICJ type of cases:
a) contentious between parties, b) advisory opinions
10. ICC Subject matter: Genocide, crimes against humanity, war crimes,
crimes of aggression; ICJ Subject matter: Sovereignty, boundary disputes,
maritime disputes, trade, natural resources, human rights, treaty
violations, treaty interpretation, and more
11. ICC Appeals: Appeals Chamber. Article 80 of the Rome Statute allows
retention of an acquitted defendant pending appeal; ICJ Appeals: None
_____________________________________________________________
THE END 

ICC vs. ICJ

1. ICC and ICJ are both tribunal courts that accommodate criminal
investigations and proceedings.
2. ICC was established in 2002, while the ICJ in 1946
3. ICC and ICJ courts are both located in The Hague, Netherlands.
4. Languages for both are English and French
5. ICC is legally and functionally independent from the United Nations
(UN), but it may receive case referrals from the UN, while ICJ or the World

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