International Law

INTERNATIONAL LAW
REVIEWER
By
ISAGANI A. CRUZ
Associate Justice
Supreme Court of the Philippines
(Retired October 11, 1994)
. 1996 Edition.
4 ’I
Published by
CENTRAL LAWBOOK PUBLISHING CO., INC.

927 Quezon Avenue, Quezon City
Philippines :-/f
VaMB.nwSXTM
1
FOREWORD
THIS REVIEWER is primarily intended as a guide, and merely as a guide,

in the study of international law in the Law course. As only two hours a
week are officially allotted to the subject, this work is limited to
fundamental principles, leaving to the professor the task of elaboration.
Another purpose of this book is to help the bar reviewee pressed

for time to renew his understanding of International Law and World
Organizations. The indispensable presumption is that he learned the
subject in the basic course; otherwise, he is advised to consult a more
detailed work.
A third function may be added, and it is to teach the student,
particularly the bar candidate, to answer questions properly. The
answers must, of course, be correct, to begin with; but they must also be
brief, categorical and responsive. It is hoped that this quizzer will
improve his technique in this regard.
Also worth mentioning is the fact that the answers in this work
are generally couched in original language and not taken verbatim from
other books. In other words, this is not a patchwork. Acknowledgments
are only of ideas except when, infrequently, excerpts are directly quoted
or parts of laws reproduced.
Finally, certain questions are stressed with an asterisk, to indicate
that they have been asked in the bar tests or are relatively important.
For practical reasons, the student is advised to give them more
attention in preparing for the examinations.
ISAGANI A. CRUZ
CONTENTS
Page
FOREWORD
Chapter I THE NATURE OF INTERNATIONAL

LAW ..................................................... 1
Chapter 11 THE RELATION OF INTERNATIONAL
LAW AND MUNICIPAL LAW ______ 7
Chapter III THE INTERNATIONAL COMMUNITY .
11
Chapter IV THE UNITED NATIONS ................ 20
Chapter V THE CONCEPT OF THE STATE ....... 36
Chapter VI RECOGNITION .................................... 41
Chapter VII THE RIGHT OF EXISTENCE AND SELF-
DEFENSE ......................................... 49
Chapter VIII THE RIGHT OF INDEPENDENCE __ 54
Chapter IX THE RIGHT OF EQUALITY ................. 58
Chapter X THE RIGHT OF TERRITORY ................ 61
Chapter XI THE RIGHT OF JURISDICTION .......... 72
Chapter XII THE RIGHT OF LEGATION ......................... 81
Chapter XIII TREATIES .................................................. 92
Chapter XIV NATIONALITY AND STATELESSNESS 102
Chapter XV TREATMENT OF ALIENS .................... 109
Chapter XVI SETTLEMENT OF INTERNATIONAL
DISPUTES ......................................... 119
Chapter XVII WAR ......................................................... 131
Chapter XVIII NEUTRALITY ..................................... 146
REFERENCES .......................................... 159
VII
TABLE OK CONTENTS
Page
APPENDIX ............................................................ 160
A. Charter of the United Nations .................. 160
B. Amendments to the Charter of the United

Nations .............................................................. 197
C. Statute of the International Court
of Justice ........................................................... 200
D. Treaty on Principles Governing the Ac
tivities of States in the Exploration and Use
of Outer Space, Including the Moon and
Other Celestial Bodies ...................................... 220
vm
Chapter 1
T11K NATURE OF INTERNATIONAL LAW
1. Whut is international law? *
International law is that branch of public law which regulates the

relations of states and of other entities which have been granted an
international personality. (Hackworth, 1; Schwarzenberger, 1).
The term “international law,” which was introduced by Jeremy
Bentham in 1870, is used interchageably with “law of nations,” an earlier
appellation of the subject.
2. What are the main divisions of international law? *
International law is divided into: -•■>
(i) The laws of peace;

(2) The laws of war; and i
(3) The laws of neutrality. 1
3. What are
the sources of international law? * v
As suggested in Article 38 of the Statute of the International Court

of Justice, the sources are either primary or sub-' sidiary.
The primary sources are: .
(1) I nternational treaties and conventions;
(2) International customs; and
(3) General principles of law.
The subsidiary sources are:
(1) Decisions of courts; and
(2) Teachings of publicists.
4. Is every treaty or convention, a source of international law?

Explain and illustrate.
No. It will be so only if it is concluded by a 'sizable

•J IN It-'liN I'lONAL LAW KliV I EWER
€'
■Ai
numbor of states for the purpose of confirming, establishing or
abolishing a rule of international law.
Kxamples are the Hague Conventions of 1899 and 1907
which adopted many existing rules of customary law, the
Cenocide Convention of 1948 which defined and punishes a/
new international offense, and the Declaration of Paris of 1856
which discontinued the practice of privateering. v
5. May bilateral treaties be considered a primary source

of international law? ■■
Yes, if they are of the same/nature, contain practically ;

uniform provisions and are concluded by a sufficient number of J
slates, although separately. .■v4*

Kxamples are extradition treaties which, while only ^
bilateral, are notable for their growing number and the :
similarity of their stipulations.
6. What is an international custom, and how does it dif-

fer from mere usage? Illustrate.
An international custom is a long-established way of do-

ing things by states under the conviction that it is obligatory
and right. Usage does not carry this conviction.
An example of an international custom is the doctrine of
state immunity. Usage may be illustrated by the use of French
and, later, of English as the language of diplomacy.
7. What are the defects of custom as a primary source of

international law?
One defect is the difficulty of determining when a practice

has hardened into a custom and thus acquired obligatory
character.
Another is the difficulty of some customs, owing to then-
slow process of evolution, to adjust to the swift developments
of the international society they are supposed to govern.
TW NATCH K OF INTERNATIONAL LAW
8. What are the general principles of law? Give ex-

amples.
These are rules which, because of their intrinsic merit, have

been accepted and are being observed by the majority of civilized
states.
Examples are prescription, estoppel, res judicata, and pacta
sunt servanda,
9. Is the principle of stare decisis observed in the

International Court of Justice?
No, because Article 59 of the Statute provides that decisions of

the Court shall be binding only between the parties and in respect
of their particular case.
Nevertheless, decisions of international and even of national
tribunals may have a strong persuasive influence in the resolution
of international litigations.
10. When may the teachings of publicists be accepted as

subsidiary sources of international law?
Such teachings may be so considered if the publicists are

highly qualified and generally acknowledged and their views are a
correct and unbiased representation or interpretation of
international law. (The Paquete Habana, 175 US 677).
11. What is the basis of international law? In other words,

what gives it binding force? *
There are three theories on this matter.

The Law of Nature School believes that international law is
based on those rules of conduct discoverable by every individual in
his own conscience and through the application of right reason. As
he is bound to-observe these rules without need of a formal or
external prescription, so too is the state, which is composed of
individuals.
The Positivist School holds that international law is based on the
consent of states, and on such consent only. This
I l u l l III. \ IIH M ,.% \V \ I I I V H . W I d l
, iMi'.tMii I > « \ f n i » i « / hi 111« • < (i.ft i»l i *iii *'«'i11 i< mu I

law, ifnftlloti, in l l\c i ii .r ill i u >(Hiitiu \ hi** mill fur itunoil in I
he case of the genci i»l (»i im i|i!t"i »il In'v
Tin1 K* li t I !♦ Hi < ii HI inn ii lmnl i*'|Mneonts a
compromise bet w 4•«*11 l lit* Iti I wu hi InM»lh MI l Imnghl mid
sidmiits that in- teiuuliouul law IM I»iIKtiIt|/ put 11y because il, is
good and right aiul pai 11\ I MU an.II ( hi a! i h I IM vn agi,<<M l to
lie bound by it.
I II.' (Im«I i lumt y h|i(nuiih i n IM* the most widely
accepted,
(/ r/IM 11 . »/ , o')
\2. Ih "piivnle ln(rimilIOMMI lawH part of

international
law?
St i a lly spent lug, im "Private international law" or “i cmlla I nl
laws" IS n pm t ol municipal or private law because it deals wit h I he del
IM mi nation of whether in a factual situation involving a loM ign element
the law of another state shall la* applied Ksseni.ially, it ingiihites the
relations of individuals n tit 1 not ml el atari in (or tw, {(loud rich, I)
l!l. What In International comity? Distinguish from internal

hmiil H hire ami Internattonnl diplomacy,*
All tin<u* mid to the dealings of states with one another.

Comity emphasizes the rules ol politeness, ethics stresses con-
siders! ions ol justi* e and morality, and diplomacy is based on
expediency and sell interest.
M. What Is international administrative law?
It is the body ol rules lonmdstud by states, usually in in-

ternational conventions, ha the purpose of regulating their
relations and activities In connection with such non-political
matters as International c ommimicntion, patents and
copyrights, promotion ol health, education, and crime preven-
tion.
lb. Would yon say that Internetional law is true law? W

by? H
THE NAT UKK OF INT KKN AT ION AL L AW
By conventional criteria, international law may not qualify as true

law because it is not promulgated by a superior authority and no
penalties are formally prescribed for its violation.
However, it cannot be denied that there are laws which have
become valid rules of conduct by mere agreement or acceptance by the
members of the community and are observed because of their intrinsic
merit and notwithstanding the absence of specific penalties for their
violation.
In the latter sense, international law may be regarded as true law.
16. If international law is true law, what then are its

sanctions? * T -' f
The sanctions, or the factors that influence observance of
international law, are as follows:
(1) Belief in the inherent wisdom of the law.
(2) Habits of obedience.
(3) Fear of reprisals or punishment.
(4) Respect for world opinion.
(5) The United Nations. (Laurel, 5).
17. What are the functions of international law? *

//
The principal functions are: ~f
(1) - To promote international peace and security;
(2) To foster friendly relations among nations and to discourage
the use of force in the solution of differences among them;
(3) To provide for the orderly regulation of the conduct of states
in their mutual dealings; and
(4) To insure international cooperation in the pursuit of certain
common purposes of an economic, social, cultural or humanitarian
character. (U.N. Charter, Art. 1).
18. What is the present state of international law?
As always, international law is in a state of flux. The Charter of

the United Nations and advances in modern science,
INTERNATIONAL LAW REVIEWER
particularly in the development of weapons, have made signifi-

cant changes in the traditional concepts of international law.
For example, the individual' is now regarded in a growing
number of cases as a subject rather than a mere object of inter-
national law. Many rules on the waging of war have become ob-,
solete, and in fact war itself has been outlawed. The old idea of
neutrality has yielded to new trends in international politics
and to specific provisions in the United Nations Charter. Space
exploration has also broadened the horizons of man and, cor-
respondingly, the scope of the law of nations.
19. What is the International Law Commission?
It is a body created by the General Assembly in 1947 for the

“promotion of the progressive development of international law and its
codification,” composed of twenty-five *0 members, of recognized
competence in international law; elected by the General Assembly for
a term of three years and eligible for re-election. Among the works of
the International Law Commission are drafts on the Rights and
Duties of States and the Law of Treaties.
Chapter II
RELATION OF INTERNATIONAL AND

MUNICIPAL LAW
(5- 20. How does international law diffe-

law?*
From the viewpoint of the monisis, there can be no differ-

ence because international law and municipal law are one and the
same law. To the dualists, however, who represent the more widely
accepted view, the two laws are distinct and separate
and may be distinguished as follows:
(1) International law is a law of coordination, being the result of
agreement among the equal states forming the family
of nations; municipal law is a law of jmbordination, being a
command issued by a political superior to those subject to its
authority.
(2) International law Regulates the relations of states and
other international persons; municipal law regulates the'' relations
of individuals among themselves or with their state.
(3) International law is 4erivec* principally from treaties,
international customs, and general principles of law; municipal
law consists mainly of statutory enactments, and to
a lesser extent executive orders and judicial pronouncements. ^
(4) International law is enforced, generally speaking, by
the subject themselves through methods of sglf-help; municipal
law is enforced by a regular and pre-existing machinery for the
administration of justice,
(5) International law usually êntails collective respon-
sibility; municipal law entails individual responsibility.
21. Is international law part of municipal law?

As a member of the international community, a state is
bound to observe the generally .accepted principles of interna-
tional law. In this, sense, international law should be deemed a
part of the municipal law of each state. ,
s INT ERNAT IONAL L AW REVIEWER
22. What is the doctrine of incorporation? How does it

differ from the doctrine of transformation?
The doctrine of incorporation postulates that the generally

accepted principles of international law are automatically incor-
porated in the municipal law of each state upon its admission to
the family of nations.
The doctrine of transformation, on the other hand, re-
quires such principles of international law to be enacted as
statutes or otherwise converted into municipal law before they
can be considered binding on the state.
23. Which doctrine is observed in this jurisdiction?
We observe the doctrine of incorporation as expressed in
Article II, Section 2, of our Constitution, which provides: “The
Philippines renounces war as an instrument of national policy,
adopts the generally accepted principles of international law as
part of the law of the land, and adheres to the policy of peace, -
equality, justice, freedom, cooperation and amity with all na-
tions.”
In a significant number of cases, our Supreme Court has
applied the generally accepted principles of international law
notwithstanding that they had not been previously
transformed into statutory or municipal law. An example is
Peralta v. Director of Prisons, 7,5 Phil. 287, on the powers of
the belligerent occupant.
24. Is the declaration in Article II, Section 2, of our

Constitution really necessary?
Not really, because, as previously stated, the mere fact

of membership in the family of nations imposes upon us the
obligation to observe its rules, whether or not we expressly
affirm our intention to do so.
The declaration is at best an assurance to the rest of the
world of our willingness and readiness to abide by the
generally accepted principles of international law as a
responsible member of the international community.
RELATION OK INTERNATIONAL LAW AND MUNICIPAL LAW 9
It cannot be regarded as a mere choice of options in the sense

that its non-inclusion in our Constitution would signify that we are not
bound by the law of nations. .y
25. What are the other provisions of our Constitution

dealing with international law?
Among such provisions are the following:

(1) Article I, Section 1, on the national territory.
(2) Article II, Section 2, on the renunciation of war and the
incorporation clause.
(3) Article II, Section 4, on the defense of the state.
(4) Article II, Section 7, on foreign relations.
(5) Article IV, on citizenship.
(6) Article VI, Section 23(1), on the declaration of the
existence of a state of war.
(7) Article VII, Section 20, on foreign loans.
(8) Article VII, Section 21, on concurrence to treaties.
(9) Article VIII, Section 4(2), on the annulment of treaties.
(10) Article VIII, Section 5(1), on jurisdiction over am-
bassadors, other public ministers and consuls.
(11) Article VIII, Section 5(2), on jurisdiction over cases
involving the constitutionality of treaties.
(12) Article XVIII, Section 4, on unratified treaties.
(13) Article XVIII, Section 25, on the RP-US bases agree-
ment.
26. In case of conflict between international law and

municipal law, which ought to prevail?
From the viewpoint of international tribunals, the decision

should always incline in favor of international law.
From the viewpoint of municipal tribunals, the decision is
usually determined by considerations of self-interest. If the
municipal law will favor the state, it is applied, otherwise, in-
ternational law is upheld.
10 INTERNATIONAL LAW RLVJhW'LR
27. The Retail Trade Nationalization Law was assailed on the

ground, among others, that it violated the Treaty of Amity between
the Philippines and China, the United Nations^ Charter, and the
Universal Declaration of Human Rights insofar as it prohibited
aliens, including Chinese, from engaging in the retail trade in the
Philippines. How was this contention resolved by the Supreme Court?
The Supreme Court held that there was no violation of the

aforementioned documents. Nevertheless, even assuming that
there was, the statute should still be upheld as it represented an
exercise by the state of its inherent police power, which cannot be
bargained away or surrendered in a treaty. (Ichong v. Hernandez,
101 Phil 115 [1957]).
28. G petitioned the Supreme Court for permission to

practice law in the Philippines without passing the required bar
examinations. He claimed that he was exempted from such
requirement under the Treaty on Academic Relations between
the Philippines and Spain because he had previously been ad-
mitted to the practice of law in Spain. Was the permission
granted? Why?
The petition was denied. The Supreme Court held that the
treaty did not provide that admission to the practice of law in
Spain would entitle the petitioner to practice law in the Philip-
pines. Moreover, even if it did, the treaty could not prevail as
against Article VIII, Section 13, (now Article VIII, Section 5(5))
of the Constitution which vests in the Supreme Court the power
to admit to the practice of law in the Philippines. This power may
not be abrogated by a treaty. (In re Arturo Efren Garcia,
2SCRA984 [1961]).
Chapter III
THE INTERNATIONAL COMMUNITY
29. What is the international community? i * H 1

•
The international community may be described as the body of

juridical entities which are governed by international law. It is often
and traditionally called the family of nations. However, it is not really
composed only of nations, or of states, as there are other entities
besides states which are now considered subjects of international law.
30. What is a subject of international law? How does it differ

from a mere object? *
A subject of international law is an entity that has rights and

responsibilities under that law. It has an international personality in
that it can .directly assert fights and be held directly responsible
under the law of nations. In other words, it has the faculty of
motivation. By this is meant that it can be a proper party in
transactions involving the application of the law of nations among
members of the international community.
By contrast, an object of international law is the person or thing in
respect of which rights are held and obligations j. assumed by the subject.
It is, therefore, not directly governed 5 by the rules of international law.
Its rights are asserted and its ^ responsibilities imposed indirectly,
through the in- c J* strumentality of an intermediate agency, which is the
subject.
31. Enumerate the subjects of international law. *

S€JM $NI
The generally recognized subjects of international law are states,
both independent and dependent, the United Nations, k colonies and
dependencies, mandates and trust territories, the Vatican City,
belligerent communities, certain international administrative bodies,
and even individuals in some cases.
11
12 INTERNATIONAL LAW REVIEWER
32. What is a state? How are states classified as subjects of

international law? *
A state is a group of people, more or less numerous, permanently

living in a definite territory, under an independent government
organized for political ends and capable of entering into legal relations
with other states.
States are either independent or dependent.
It is true that all states are supposed to possess sovereignty as

one of its essential elements. Nevertheless, international law recognizes
the anomaly of certain states enjoying less than full sovereignty, which
has made the distinction between independent and dependent states
necessary. .
33. What is an independent state? How are independent states

classified?
An independent state is one that has full freedom in the direction

of its affairs, both domestic and foreign.
An independent state may be either simple or composite.
34. What is a simple state? Give examples.
A simple state is one where the direction of domestic and foreign

affairs is placed in a central authority. An example is the Philippines.
—
35. What is a composite state? Give the kinds of composite

states.
A composite state consists of two or more states, each with its

own separate government but bound under one central authority
exercising to a greater or less extent control over their external relations
and thus forming a separate international person.
The real union and the federation are composite states with
full international personality, as distinguished from the
confederation, which is an imperfect international person.
rUK lN I'KKN ATIONAL COMMUNITY"
36. W hat is a real union? *
A roal union is created when two or more states are merged

under a central authority through which they act in the direction
of their external affairs. The states forming this union do not lose
their status as such but their respective intor- national
personalities are extinguished and blended in the new
international person which, however, is not considered a state.
Such a union existed between Norway and Sweden from 1815 to
1905 and between Austria and Hungary from 1867 to 1918. t Bishop ,
ISO).
37. What is a federal union? *
A federal union, or federation, is a combination of two or more

states which, upon merger, cease to be states, resulting in the
creation of a new state with full international personality to
represent them in external relations and a certain degree of power
over their domestic affairs and their inhabitants. An example is the
United States. (Bishop, 180).
38. What is a confederation? *
A confederation is an organization of states which retain their

internal sovereignty and, to some extent, their external sovereignty,
while delegating to the collective body power to represent them as
a whole for certain limited and specified purposes, such as common
defense. To the extent that the confederation itself, and each of the
individual member states, are able to maintain separate
international relations, they are all regarded as so many
international persons, albeit not full but only imperfect. The
German states were joined in a confederation in 1866 until they
eventually developed into a more closely-knit federation. (Bishop,
180).
39. What is a personal union? *
A personal union comes into being when two or more states are
brought together under the same monarch, who
nevertheless does not constitute one international person for |ft the purpose
of representing all of them. As in the case of ||f;
Belgium and the former Congo Free State from 1885 to 1905, ||f^
each member remains a state and an international person, although its
external policies are dictated by the same monarch who also directs the
foreign affairs of the other fg, members of the union. (Bishop, 180). , 8|||
40. What is an incorporate union?
It is a union of two or more states under a central authori-

ty empowered to direct both their internal and external affairs
and possessed of a separate international personality. It dif-
fers from a real union in that only external affairs are placed
under the control of the latter. An example of an incorporate
union is the United Kingdom of Great Britain and Northern
Ireland. (Paras, 33).
41. What is a dependent state? Discuss the kinds of

dependent states.
A dependent state is an entity which, although &

theoretically considered a state, does not have full freedom in t
the direction of its external affairs. A dependent state may be either a
protectorate or a suzerainty.
Some writers suggest that the protectorate always retains a
measure of control over its external affairs whereas a suzerainty
may or may not have this power. The real difference, however, is
that a protectorate is established at the request of the weaker state
for the protection of a strong power whereas a suzerainty is the
result of a concession from a state to a former colony which is
allowed to become independent subject to the retention by the
former sovereign of certain powers over the external affairs of the
latter. (Fenwick, 117).
42. In what ways does the United Nations enjoy the status of
an international person? *
- (1) Like states, although not to the same extent, it enjoys certain
privileges and immunities such as non-suability, s
I V.
THE INTERNATIONAL COMMUNITY 15 a
inviolability of its premises and archives, and exemption from

taxation. (U.N. Charter, Art 105; General Convention on the
Immunities and Privileges of the United Nations).
(2) It has the right of legation and its diplomatic agents
generally possess the same privileges accorded regular envoys, i
(Id)
(3) It can assert diplomatic claims for damages on
behalf of its officials in the same way that a state can intercede
for its nationals. (Case of Count Folke Bernadotte, I.C.J:
Reports 1949, p. 174).
(4) It can enter into treaties through the General
Assembly, the Security Council, and the Economic and Social
Council. (U.N. Charter, Arts. 43, 63, 83, 85).
(5) It can wage war, in a sense, through the exercise of
its power to take enforcement action in case of actual breach of
or threat to the peace of the world. (Id, Art. 42).
43. Do colonies and dependencies have a legal standing

in the international community?
From the viewpoint of international law, a colony or a

dependency is part and parcel of the parent state, through >.W.
which all its external relations are transacted with other
states.
. ,
-'f ■ As such, therefore, it has no legal standing in the inter-
. , , . J. . , . '■
national community. f 'f

Nevertheless, such entities have been allowed on occasion o *
to participate in their own name in international activities and
granted practically the status of a sovereign state. It is when
acting in this capacity that colonies and dependencies are con-
sidered international persons. f"!
While still a colony of Great Britain, India was allowed . y'?f
qualified membership in the League of Nations, signed the r-; ,
Treaty of Versailles, and became a charter member of the i.ry
United Nations. The Philippines was a signatory of the wiy
Universal Postal Convention in 1906, the International Sugar ^
Agreement in 1937, the Declaration by United Nations in
1942, and the United Nations Charter in 1945, before it T1-
became independent in 1946.
44. What are mandates and trust territories?
These are non-self-governing territories which have been placed

under international supervision to insure their political, economic,
social and educational advancement.
The system of mandates was established after World War I to
avoid outright annexation of the under-developed territories taken
from the defeated powers and to place their administration under the
League of Nations. Its basic principles have been retained by the more
comprehensive trusteeship system devised in the United Nations
Charter.
Three kinds of territories are provided for, viz: (a) those held
under mandate under the League of Nations; (b) those detached from
the defeated states in World War II; and (c) those voluntarily placed
under the system by the states responsible for their administration.
(U.N. Charter, Art 47).
Pending the development of these territories, sovereignty over
them is lodged in the United Nations, but they are allowed certain
rights that give them the qualified status of an international person.
Among these is the right to make direct representations with the
Trusteeship Council in connection with their administration.
45. Is the Vatican City a state?*
1
There is no clear consensus on this matter. :
Although Italy recognized “the state of the Vatican under the
sovereignty of the Supreme Pontiff” in the Lateran Treaty of 1928,
doubt is expressed by some jurists as to its real status, considering its
small population and territory, the apparent impairment of its
independence as an enclave in Italy, and the circumstance that its
government is organized more for spiritual rather than political
purposes.
Nevertheless, the Vatican City exercises certain rights generally
reserved to states, such as the right of legation and the right to enter
into treaties, and a considerable number of states have recognized it as
a member of the international community.
THE INTERNATIONAL COMMUNITY 17
46. What is a belligerent community? In what sense is it

considered a subject of international law?
A belligerent community may be described as a group of

rebels under an organized civil government who have taken up
arms against the legitimate government.
When recognized, it is considered a separate state for pur-
poses of the conflict and is entitled to all the rights, and subjected
to all the obligations, of a full-fledged belligerent under the laws of
war.
Thus, it may exercise the right of visit and search, seize
contraband, and establish blockades; on the other hand, any in-
jury it may cause third states or their nationals is imputable to it
and not to the legitimate government which it is resisting.
{Schwarzenberger, 70; Wilson and Tucker, 69-72).
47. When may international administrative bodies be

considered subjects of international law?
They may be so considered when they are autonomous, i.e., they are
not subject to the control of any single state, and their purposes are
mainly non-political.
Examples are the International Labor Organization, the Food and
Agricultural Organization, and the International Monetary Fund, which
may enter into agreements with the United Nations for the pursuit of
their respective objectives.
Mention may also be made of the European Commission of the
Danube and the Central Commission for the Navigation of the Rhine,
which exercise legislative, administrative and judicial powers directly
applicable to individuals. (Fenwick, 199-200).
48. What were the so-called trading corporations?
These were corporations which were vested by their respective

sovereigns with certain governmental powers over territory placed
under their jurisdiction. Examples are the British North Borneo
Company and the Dutch West India
IH r.'l Ul '. A' UO’ . Ai , L A // f.h /
(Company, now extinct because of the revocation of the*r

unusual charters by their governments.
49. From the traditional viewpoint, is the individual a subject

or an object of international law? *
Traditional concept regards the individual as an object of

international law who can act only through the instrumentality of his
own state in matters involving relations with other states. If he is
injured, for example, by reason of a wrong imputable to a foreign
jurisdiction, he can secure redress under international law only
through the assistance and and not otherwise.
In theory, it is his state whose right—i.e., its right to have its
nationals respected and protected by other states while within their
jurisdiction—has been violated. Hence, it is the state and not the
individual that can be a proper party in the assertion of an
international claim for damages.
50. Notwithstanding this traditional theory, what are some of

the manifestations of the growing tendency to regard the individual
as a subject rather than as a mere object of international law? *
(1) The United Nations Charter reaffirms “faith in fun-

damental human rights, in the dignity and worth of the human
person, and in the equal rights of men and women.”
(2) The Universal Declaration of Human Rights recognizes
“the inherent dignity and the equal and inalienable rights of all
members of the human family.”
(3) A number of treaties directly confer upon individuals the
right to bring lawsuits against states before national or international
tribunals for redress of the private interests violated. Examples are
the Treaty of Versailles, the minority treaties in favor of racial,
linguistic and religious groups, and the German-Polish Convention
Regarding Upper Silesia.
(4) States are obliged to maintain an international standard of
justice in the treatment of aliens within their jurisdic-
mi'! INTMH NATIONAL ('(IMMUNITY
10
(ion, hiding which they mny bo Imld liable In dmiiuges |,„

tUi y injury sutioivd by stu b loioiguoiH
(Id The (lonocide Convention condemns Mm imiî V.HUH
munition of national, ethnic, racial or religions gioups ns s crime under
international law mul malms Mm pui pat* ntor s tluMvof, including
individuals, subject t o punishment
((>) rim Tokyo mul Nuremberg wiir crimes Mads el/ Inched direct
responsibility to individuals lot offenses com mil tod by thorn in
violation of tho lawN of war,
(7) Pirates havo boon immemorinlly brandod honing humanis
generis and aro diroctly and individually punishable for tlioir acts by
whichever state may have them in custody,
(8) Certain laws of war and neutrality, such as Mm rules on
carriage of contraband and broach of blockade, procedure before prize
courts, espionage, and treatment of the sick and wounded and prisoners
of war, directly affect the individuals themselves instead of the states
to which they belong.
(9) The Hague Convention of 1930 lays down specific rules
intended to prevent the anomalous condition of statelessness, and the
Covenant Relating to the Status of Stateless Persons, adopted in 1954,
grants them certain basic rights.
(10) The doctrine of incorporation makes the law of nations part
of the law of the state and, hence, directly applicable to its individual
inhabitants.
( k'lptOr f V
•nr UMl'fLU NATIONS
4* v(/hm I- ♦h'* (ini tori Notions?
If if' fit, international organization created at the Sa/> ♦

(••i f, ( o r . f > r w h i c h was held in the Unitod Stato*,
A m»i f0 j(mt4 26, 1945. The U.N., as it is comm only > ►dish i"
f wind the League of Nations and is governed by a ' o o»* r "he h t
nrne into force on October 24, 1945. Composed oi mo/'dN of oolv 51
members, the United Nations has grown '■ '* i fr 11 / to? nr- (!,de
most of the states of the world.
V the principal purposes of the United Na-

fI
A' / r/rdiog to Article 1 of its Charter, the purposes of the I -

nd&d Nations are:
* 1 1 To maintain international peace and security, and to i
hrO end: C> take effective collective measures for the preven- f mb
vnd removal of threats to the peace, and for the suppression of nets
of aggression and other breaches of the peace, and ■ 0 bNng about
by peaceful means, and in conformity with the i/Nnciyrfes Of justice
and international law, adjustment or set- Coovent of international
disputes or situations which might lend to a breach of the peace;
i‘£f To develop friendly relations among nations based Od
'fe'spfeCi for the principle of equal rights and self- determination of
peoples, and to take other appropriate mNmu/’eS' to Strengthen
universal peace;
Td achieve international cooperation in solving inter-
nffLo.da/ jjtobhtiis of an economic, social, cultural or
d'/rz/fr/dt^riafn character, and in promoting and encouraging 'A
human rights and for fundamental freedoms for all
i f distinction aS to race, sex or religion; and
*4/ To be a Center for harmonizing the actions of nations iff f
rre attainment of these common ends.
20
m i i n i i i t 11 [ i H H i n /;
X\ \ N I m i i ll!' H i t' I i n i tlll llH I ll i ll p j I I I * I pll' lj ol U l< t l h i U f i Nn( ioun '"
Aivoidmg I n Aillrlo ’/ ol llio (liiiibn, ihr. I III imti ib; im*u\bei*», in

pin Mint ol l lio pin pohni Hl,iil,<d in /w tx le j, thull in*t m mvtinlinu o wit It
I hr billowing pi iimphur
(1) The Oi gnni/.ul ioii I.M buried on I,ho noveioign cqu/dd//
of all it s members.
U’) All inrnihni.M, in order to insure to nJJ of them iho
lights ami benefits resulting from membership, shall fulfill in
good faith the obligations assumed by them in accordance with
t hr Charter.
(3) All members shall settle thrir international diapufoa
by peaceful moans in such manner that international peace and
security, and justice, are not endangered.
(*l) All members shall refrain in their international rela-
tions from the threat or use of force against the territorial in-
tegrity or political independence of any state, or in any manner
inconsistent with the purposes of the United Nations.
(5) All members shall give the United Nations every assistance
in any action it takes in accordance with the Charter, and shall refrain
from giving assistance to any state against which the United Nations is
taking preventive or enforcement action.
(6) The Organization shall insure that states which are not
members of the United Nations shall act in accordance with these
principles so far as may be necessary for the maintenance of
international peace and security.
(7) Nothing contained in the present Charter shall authorize the
United Nations to intervene in matters which are essentially within the
domestic jurisdiction of any state or shall require the members to submit
such matters to settlement under the Charter; but this principle shall
not prejudice the application of enforcement measures under Chapter
VII.
nil v / /' /1/ / ii'inn wfi m
• ‘Him*/Wib'dniliittyn rffi rw>t i«^(^

Hu m 'tiUhl-u,, ‘,i,lH'H I ‘Mi >11 HllfhflUlitH INf
HftllAtfr ••*'» *. i.
T i l 10 U N I T K I ) N A T I O N S
58. When and how may a member of the United Nation** be

suspended? What is the effect of such suspension, and how may it be
lifted? *
A member against which preventive or enforcement action has

been taken by the Security Council may be suspended by at least two-
thirds of those present and voting in the General Assembly upon
recommendation of a qualified majority in the former.
When thus disciplined, the member is not suspended from the
Organization itself but only from the exercise of the rights and
privileges of membership. This means that its obligations under the
Charter will continue.
Only the Security Council may lift the suspension by a qualified
majority vote. (Id., Art 5).
59. When may a member be expelled, and how? *
The penalty of expulsion may be imposed upon any member

which has persistently violated the principles contained in the
Charter. This is effected by a vote of at least two- thirds of those
present and voting in the General Assembly upon the
recommendation of a qualified majority in the Security Council. (Id.,
Art. 6).
60. May a member withdraw from the United Nations?
There is no provision in the Charter allowing or prohibiting

withdrawal. However, Indonesia withdrew in 1965 and no action was
taken to compel it to remain in the Organization. Subsequently, upon
the overthrow of President Sukarno, Indonesia resumed its
membership in the United Nations and was allowed to do so.
61. What are the principal organs of the United Nations? *
The six principal organs of the United Nations are as follows:

4 A U N\ \i iO\ U l \\\ U \ \ 11 \\ 1 1,
i L»The General Assemhlv. r2i

The Security Council.
<3i The Economic and Social t \unw d U)
The Trusteeship Council i5» The
International Court ot Jusnco ob The
Secretariat. [LL, \ ( \
62. What are the subsidiary orguns? i h\ & esiimples
They are those which the Charter it sell has nun! ml ot which it allows
to be created whenever oet easa« v l»v the General Assembly, the Security
Council or the hVonomh ami Social Council. Examples are i he t nterim
Commit tee oi “I .it lie Assembly,'* the Military Staff Committee ami the
I lumen Rights Commission. Cd, Art. U
63. What are the so-called specialised ayem iep?
These are international bodies which, while not part of t ho United

Nations, have been brought into close contact with it because of their
purposes and functions, Among t hose m e the World Health Organization,
the International Monetary Euud, and the Technical Assistance Board,
64. What is the General Assembly? *
The General Assembly is the central organ of the Untied Nations.

All members are represented in it ami it pKeroiseS powers and
functions with respect to the other organs 11 is the principal
deliberative body of the organisation and is vested with jurisdiction over
matters concerning the internal machinery and operations of the
United Nations, (M, ('hoftfpr
IV).
65. Discuss its composition,
The General Assembly consists of all the members of (he United

Nations, each of which is entitled to semi no more Hum five delegates
and five alternates ami as many le< Imiral and other personnel as it
may need, {hi, Art, Ml-
T llK IINIT KI) NAT IO NS 'Ah
The reason for this system of multiple delegates i« to enable

the members to attend all of several meetings that may be taking
place at the same time in the different organs or committees of the
Organization.
However, each delegation is entitled to only one vote in the
decisions to be made by the General Assembly. (Id., Art 18).
66. What is the Interim Committee or “Little Assembly’1?
Subsidiary to the General Assembly is the Interim Com-

mittee, popularly known as the “Little Assembly,” which was created
in 1947 for a term of one year and re-established in 1949 for an
indefinite term. Composed of one delegate for each member-state, it
meets when the General Assembly is in recess and assists this body
in the performance of its functions.
67. When are the sessions of the General Assembly held?
Regular sessions are held every year beginning the third

Tuesday of September.
Special sessions may be called at the request of the Security
Council, a majority of the member states, or one member with the
concurrence of the majority. (Id., Art. 20).
Under the Uniting for Peace Resolution, an emergency
special session may be called within 24 hours at the request of the
Security Council by vote of any nine members or by a majority of the
members of the United Nations.
68. What are the voting rules in the General Assembly?
Each member of the United Nations has one vote in the

General Assembly. (Id., Art 8).
“Important questions” are decided by a two thirds majority of
those present and voting. All other matters, including the
determination of whether a question is important or not, are decided
by simple majority. (Id., Art. 18).
\ r K\ v;:o \ M ; \\\ Kl'\ \ K\\ I K
For :be election of ;he judgvs in the International Court of

Justice., an absolute majority is required in the General
Assembly as well as in the Security Council.
Proposals to amend the Charter of the United Nations may
be adopted in two ways: V directly, by two-thirds of all the
members of the General Assembly, or 2) by two-thirds of a
general conference to be called for this purpose by two-thirds of
all the members of the General Assembly and any nine members
of the Security Council. Any amendment thus proposed shall be
subject to ratification by at least two-thirds of all the members of
the United Nations, including all the permanent members of the
Security Council. (Id, Art. 108).
69. What are “important questions”?

According to the Charter, “important questions” include
recommendations concerning international peace and security,
election of members of the Councils, admission and expulsion of
members and suspension of the rights and privileges of
membership, questions relating to the trusteeship system, and
budgetary matters. (Id, Art 18).
70. Mention some of the important functions of the

General Assembly. 1 2
(1) Deliberative. The General Assembly is

empowered to discuss principles regarding the
maintenance of international peace and security, subject
to certain rights primarily vested in the Security Council,'
and may take appropriate measures toward this end,
including studies and recommendations to promote
international cooperation in the political field, and the
codification of international
(2) Supervisory. law. (Id,
It receives andArts. 11,13). reports
considers
from the other organs of the United Nations, makes
recommendations for the coordination of their activities,
approves trusteeship agreements in non-strategic areas,
and supervises the Trusteeship Council and the
Economic and Social Council* as well as the
administration of non-self-governing territories. (Id,
Arts. 15, 16).
(3) Elective. . Important voting functions are also vested in
the General Assembly, such as the election of the non-permanent
members of the Security Council* some members of the
Trusteeship Council, and all the members of the Economic and
Social Council With the Security Council, it selects the judges of
the International Court of Justice and the Secretary-General and
votes on the admission and discipline of the members of the United
Nations. It also participates in the amendment of the Charter. (Id,
Arts. 4, 5, 6, 23, 61, 86, 87, 108, 109; I.C.J. Statute, Art 10).
(4) Budgetary. It is also the General Assembly that controls

the finances of the United Nations, approves its budget and
apportions expenses among the members. Authority is likewise
conferred upon it to examine the administrative budgets of the
specialized agencies and to make recommendations to such bodies.
(U.N. Charter, Art. 17).
(5) Constituent. The General Assembly also participates in
the amendment of the U.N. Charter, (supra).
71. WKat is the Security Council?
It is the organ of the United Nations primarily responsible for

the maintenance of international peace and security. This
responsibility makes the Security Council a key influence in the
direction of the affairs not only of the Organization but of the entire
international community as well.
72. Discuss the composition of the Security Council. *
The Security Council is composed of fifteen members, five of

which are permanent. The so-called Big Five are China, France,
the Soviet Union (now replaced by Russia), the United Kingdom,
and the United States. The other ten members are elected for two-
year terms by the General Assembly, five from the African and
Asian states, one from Eastern European states, two from Latin
American states, and two from Western European and other
states. Their terms have been so staggered as to provide for the
retirement of one-half of them every year. These members are not
eligible for immediate re-election. (Id., Art. 23, as amended).
28 1NTE RN AT ION AL LAW UK VI K W10 U
Chairmanship of the Security Council is rotated monthly

on the basis of the English alphabetical order of the names of
the members.
73. When are the sessions of the Security Council held?

The Security Council is required to function continuously
and to hold itself in readiness in case of threat to or actual
breach of international peace. For this purpose, all members
should be represented at all times at the seat of the Organiza-
tion. (Id, Art 28).
74. Discuss the voting rules in the Security Council. *

Each member of the Security Council has one vote, but
distinction is made between the permanent and the non-
permanent members in the decision of substantive questions.
According to the Yalta voting formula, as it is called, deci-
sion on procedural matters is to be made by the affirmative vote
of any nine members of the Security Council. Decision on non-
procedural or substantive matters, on the other hand, requires
the concurrence of also nine members of the body, but including
all the permanent members. However, no member, permanent
or not, is allowed to vote on questions concerning the pacific
settlement of a dispute to which it is a party. (Id., Art 27, as
amended).
75. Distinguish between procedural and non-procedural

or substantive matters. *
Procedural matters include questions relating to the
organization and meetings of the Council, the establishment of
subsidiary organs, and the participation of states parties to a
dispute in the discussions of the Security Council.
Substantive or non-procedural matters are those that may
require the Security Council under its responsibility of
maintaining or restoring world peace to invoke measures of en-
forcement.
l ilt' HNlTl’H NATH H IM
Unhko m I ho l u'notnl A HMOI nl »l y , 11 m < Inim mi mi 11< »n ol I ho

ca logoi \ ol n quosi ton IM oomndoi ml it mm pioi odm id inn I foi in
i ho Stvunt v (\uun il (/' A Y/, ,77)
/(>, \\ lull is I ho HO onllod M voio"? "
rim nognlivo vol.o which any o| I Im poim/moul, momboin

is allow ini l o cast in l ho tlocomm ol mm pi ocodui id quoMtionn IM
Know'll as a voto. Tho ollool ol Ihin voto I/J to dnlonf, tin*
moasut'o utuli'r consideration rvni il siippoitod by n majority
or, in laot, all ol tho ot hoi members ol (.ho Security I Jouncil.
77. Is absonoo or ahslcni ion considered n veto? n
In practice, tho abstention or absence of a permanent monibor

during a volution on a substantive or non procedural mat tor is not
regarded as a veto. Thu measure voted upon is deemed passed if
approved by at least nine members of the Security Council including the
rest of the Big Five.
78. In what cases is the Yalta voting formula not applied?

First, in the election of the judges of the International Court of
Justice. The absolute majority required in the Security Council is taken
without distinction between the permanent and the non-permanent
members. (l.C.J. Statute, Art. 10).
Second, in the amendment of the Charter of the United Nations.
The proposal to call a general conference for this purpose must be
supported by any nine members of the Security Council, also without
distinction between the Big Five and the other members.
As previously noted, however, all the permanent members must
concur in the ratification of the proposed amendments. (U.N. Charter,
Art. 109).
79. Briefly discuss the functions of the Security Council.
In pursuance of its primary responsibility for the maintenance of

international peace and security, the Security
BCFTHWLTBBBW
;io MTIMINATIDNAI. I,AW m-; vi MW Mil
< ‘»tinrj| nmy l.nhn Sli*p.q t>»t Mlft pacific Settlement of

disputes <»i, wlmn imiesstii y ( |»tevnuMvoor enforcement
action.
Ilnw^vm, Mm <Iinpi11.<> must lift international, Le.f it must,
iilltM l l!i“ pnm-n nf Mm world mid not lift merely an internal
dissension sui h as a civil war, Otherwise, the intervention of i lu-^nu
ity (muncil would violate one of the principles of the limit'd Nnlions,
»,<> wit, Mint it shell not intervene in any mat- i.f i wiMiin Mm
domestic jurisdiction of any state.
Tim .Security Council also approves trusteeship iij/M*t«iimiii.q in
strategic areas and performs a number of impor- l.unl. voting functions
such as those relating to the admission nod disnplino of members of the
United Nations, the election of the judges of the International Court of
Justice and the MerM*u,ry-('ieueral, and the amendment of the United
Nations ChmM-r. (/d.. Arts, 4, 5, 6, 24, 83, 97; I.C.J. Statute, Art. 8).
HO, Wbat is the Economic and Social Council?
Recognizing that the promotion “of social progress and better

standards of life in larger freedom” is indispensable to world harmony
and order, the United Nations Charter has created an organ charged
with the particular duty of pursuing this objective. This is the Economic
and Social Council.
HJ, UJSCUSS its composition. *
The Economic and Social Council has fifty-four members elated

by the General Assembly for a staggered term of three years, with right
to run for re-election. (U.N. Charter, Art. 61 as amended}.
H2. W h <jfj a re i ts sessions held?
■ i be Economic and Social Council normally holds two sessions a

year, one beginning in January and the other in June. It inay also meet
in special session at the request of a majority of its members, Md*, Art.
72)t
VrV'- , *
TUK UNITKI) NATIONS
83. Discuss the vot ing rules in this organ.
Each member of the Economic and Social Council has one vote,
and decisions are reached by a majority of those present and voting.
Members of the United Nations and representatives of the
specialized agencies may be allowed to participate, without vote, in
the deliberations of the Council. (Id., Arts. 67, 69).
84. Discuss the functions of the Economic and Social Council.
The Economic and Social Council, under the authority of the

General Assembly, is charged with the duty of promoting:
(a) higher standards of living, full employment and con-
ditions of economic progress and development;
(b) solutions of international economic, social, health and
related problems; and international cultural and educational
cooperation; and
(c) universal respect for, and observance of, human rights
and fundamental freedoms for all without distinction as to race, sex,
language or religion. (Id., Art 55).
In the performance of this duty, the Council is assisted by
certain subsidiary organs, such as the Commission on the Status of
Women and the regional economic commissions for Europe, Asia
and the Far East, and Latin America. It also collaborates and may
enter into agreements,, subject to the approval of the General
Assembly, with specialized agencies like the International
Monetary Fund and the International Trade Commission.
The Council may also prepare draft conventions and call
international conferences on matters within its competence, assist
members of the United Nations upon request, and send and receive
recommendations and reports.
85. What is the Trusteeship Council?
It is the principal organ of the United Nations which is

32 1NTKKN ATION Al. LAW I{I*',V I I'lWI'lK
directly charged with the administration of the international

trusteeship system.
86. Discuss its composition.M
The Trusteeship Council is composed of: a) members ol the

United Nations administering trust territories; b) members of the Big
Five not administering trust territories; and c) as many members of
the United Nations elected for three-year terms by the General
Assembly as may be necessary to insure that the total membership of
the Council is equally divided between those which administer trust
territories and those which do not. (Id., Art. 86).
87. When are its sessions held?
It meets twice a year, generally in January and June. It may also

meet in special session upon request of the General Assembly or the
Security Council, or, with the concurrence of a majority of the
members of the Trusteeship Council itself, upon request of any of its
members or of the Economic and Social Council. (Id., Art. 90).
88. Discuss the voting rules in this body.
Each member of the Trusteeship Council has one vote and

decisions are reached by a majority of those present and voting. (Id,
Art. 89).
89. What are the functions of the Trusteeship Council?
Under the authority of the General Assembly, the Trusteeship

Council may consider reports submitted by the administering
authority; accept petitions from the trust territories and examine
them in consultation with the administering authorities; provide for
periodic visits to the trust territories; and formulate questionnaires
on the political, economic, social and educational advancement of the
inhabitants of the trust territories. (Id, Art. 87).
0
&
mio UNITI *!|> NATION /!
90. What. IN (ho lidointi! iomil (!oiirl of
It is t ho judicial organ of (ho limb'd Nntion/nmd /cplaoed the'

Permanent Court ol I nfnrnafiniinl .Juutiee \in<Ugt Iho defunct Longue
of Nat ions. The World Court, un it in common lv called, is governed by
a Statute which in annexed to and made a part of the United Nations
Charter.
91. Discuss the composition of the Court. *
The Court is composed of fifteen members who must be of high

moral character and possess the qualifications required in their
respective countries for appointment to the highest judicial office or are
jurisconsults of recognized competence in international law. As much as
possible, they must represent the main forms of civilization and the
principal legal systems of the world. (I.C.J. Statute, Art. 2).
92. How are the judges of the Court chosen? *
Nominations to the Court are made by the national groups created

by their respective governments in accordance with the Hague
Conventions of 1907. No group shall nominate more than four persons,
not more than two of whom shall be of their own nationality. (Id, Art 4).
Candidates obtaining an absolute majority in the General
Assembly and in the Security Council are considered elected. In the
event that more than one national of the same state obtain the requisite
majorities in both bodies, the eldest only is chosen. (Id, Arts. 8,10).
Detailed provisions are contained in the Statute for the filling of
seats in the Court whenever the membership is not completed by the
regular procedure of election. A joint conference consisting of six
members, three chosen by the General Assembly and the other three by
the Security Council, or, if this fails, the judges already elected, shall fill
the remaining vacancies. (Id, Art 10)
34 lM'KKN ATIONAl« LAW 1U0VIKWKU
93. What is the term of office of the judges?
They are elected for a term of nine years, staggered at three-

year intervals by dividing the judges first elected into three equal
groups and assigning them by lottery terms of three, six and nine
years respectively, immediate re-election is allowed.
The President and the Vice-President, elected by the Court for
three years, may also be re-elected. (Id, Arts. 13, 21).
94. When are the sessions of the Court held?
The Court shall remain permanently in session at the Hague or

elsewhere, as it may decide, except during the judicial vacations the
dates and duration of which it shall fix. {Id. Art 22).
95. Discuss the functions of the Court. *
The principal functions of the Court are to decide contentious

cases and to render advisory opinions.
Only states, including non-members of the United Nations
under certain conditions, may be parties in contentious cases. (Id,
Arts. 34, 25). Advisory opinions may be given upon request of the
General Assembly or the Security Council. Other organs of the
United Nations, when authorized by the General Assembly, may also
request advisory opinions on legal questions arising within the scope
of their activities. (U.N. Charter, Art. 96).
96. What is the voting procedure in the Court?
All questions before the Court are decided by a majority of the

judges present, the quorum being nine when it is sitting en banc. In
case of tie, the President or his substitute shall have a casting vote.
However, no judge may participate in the decisipn of a case in
which he has previously taken part as agent, counsel or advocate for
one of the parties, or as a member of a national or
TIIK lINn'KI) NATIONM
international court, or of n comima/uon of inquiry, or in fur/ other

rapacity. (I.C.J. Statute, Arta. *}J>, hit)
97. Discuss the Secretariat and the Secrctary Geri-

oral.
The (’hief administrative organ of the United Nation?/ b> the

Secretariat, which is headed by a Secretary General,
The Secretary (leneral is chosen t>y the General A?*,sera- hly upon
recommendation of the Security Council. His term JB fixed at five years
by resolution of the? Conernl Assembly, arid he may he re-elected.
98. What are the functions of the Secretary-General?
His functions may be classified as follows;

(1) Representational. The Secretary-General is the highest
official and spokesman of the United Nations. When acting in this
capacity, he enjoys the usual diplomatic immunities and privileges,
which only the Security Council may waive.
(2) Political. The Secretary-General may bring to the attention of
the Organization any matter which, in his opinion, may threaten or
disturb international peace and security. He may assist in its solution
with the authority of the Security Council.
(3) Administrative. The Secretary-General is the head of the
administrative personnel of the United Nations and is in charge of
coordinating the activities of the various organs of the Organization.
(4) Secretarial. The Secretary-General acts in that capacity in all
the meetings of the General Assembly, the Security Council, the
Economic and Social Council, and the Trusteeship Council.
(5) Budgetary. The Secretary-General also prepares the budget
of the United Nations for submission to and approval by the General
Assembly.
Chapter V
THE CONCEPT OF THE STATE ‘ '
99. On the basis of its accepted definition, what are the

essential elements of a state?
The essential elements of a state are:

41) People.
(2) Territory.
(3) Government.
(4) Sovereignty, or independence.
100. Define “people” as an element of the state. Is there any

legal requirement regarding the size of a state’s population?
The term “people” refers to the inhabitants of a state. They are

regarded as a single unit and must come from both > sexes so as to be
able to perpetuate themselves. y There is no legal requirement
regarding the size of a state’s population. Barbados, for example, has
about 300,000 people only but has been admitted to the United
Nations.
For practical purposes, however, it is desirable that the
population be big enough to be able to sustain itself and maintain its
security and small enough to be easily governed.
101. Define “territory.” How big should it be to be an element

of the state?
Territory is the fixed portion of the surface of the earth on which

the population of a state resides. It must be fixed so that the
jurisdiction of the state may be ascertained. The so- called “floating
states” of the past, which were made up of nomadic tribes, have not
received international recognition.
Legally, the size of the territory does not matter as long as the
state is able to comply with its international obligations. The classic
example of a small state is San Marino, with a territory of only thirty-
eight square miles.
From the practical standpoint, however, the territory
should be big enough to bo able to provide for the neeoe of toe
inhabitants and small enough to be easily a 0 mini stereo eno
defended.
102. Define “government” and explain its functions. Is

any particular form of government required of the state?
Government is defined as the agency through v/hich the

will of the state is formulated, expressed and realized. I n inter-
national law, it is the instrumentality that represents the state
in its dealings with other international persons. The state can
assert rights, and is held responsible, through its government.
No particular form of government is required of a state.
The important thing is that it is able to observe its obligations
under international law.
103. Define “independence.” Why is it necessary in in-

ternational law?
“Sovereignty” and “independence” are often used inter-

changeably. Strictly speaking, however, independence is only
the external manifestation of sovereignty, which also em-
braces* power over internal matters. Independence may be
defined as the power of a state to administer its external af-
fairs without direction or interference from another state.
Independence is necessary in international law because an
entity that does not have freedom to direct its foreign relations
is not, as a rule, treated as a subject but merely as an object of
international law.
104. How may a state come into existence? *
A state may be created in any of the following ways:
(1) By peaceful acquisition of independence, as in the

case of the Philippines.
(2) By revolution, as in the case of the United States.
(3) By unification of several states, as in the case of Ita-
ly.
(4) By secession, as in the case of Bangladesh.

(5) By agreement, as in the case of the Netherlands.
(6) By attainment of civilization, as in the case of Japan.
105. Once a state is created, what may it claim as its

fundamental rights? *
The fundamental rights of a state are the following:

(1) The right of existence and self-defense.
(2) The right of independence.
(3) The right of equality.
(4) The right of property and jurisdiction.
(5) The right of legation or diplomatic intercourse.
106. What do you understand by the principle of state l
continuity? *
It means that the legal existence of a state continues

notwithstanding changes in the size of its population or
territory or in the form or leadership of its government as long
as the four essential elements of statehood are retained.
107. In the famous Sapphire Case, Emperor
Louis Napoleon filed a damage suit on behalf of France in an
American court, but he was deposed and replaced as head of
state pendente lite. Was the action abated? *
No, because it had in legal effect been filed by France,
whose legal existence had not been affected by the change in
the head of its government. Napoleon had sued not in his per-
sonal capacity but officially as sovereign of France. Hence,
upon recognition of the duly authorized representative of the
new government, the litigation could continue. (11 Wall. 164).
108. Is it strictly correct to say that the state is immor-
tal? Why?
The state is immortal only as long as it has people, ter-
ritory, government, and sovereignty. If any or all of these
elements disappear, the state itself is extinguished, or dies.
T!IK CONCKPT OF THK STATK 39
109. How muy a state be extinguished? *
A state may be extinguished through natural causes, as when its

population dies out as a result of an epidemic or its territory is lost
because of volcanic eruption or other similar disaster. However, these
are not common methods of state extinction.
More usual are the artificial means, which include:
(1) Anarchy.
(2) Mass emigration of the population.
(3) Annexation.
(4) Merger or unification.
(5) Dismemberment.
(6) Dissolution of a federal union.
(7) Partial loss of independence, as in the case of the suzerainty
and the protectorate.
110. What is the principle of state succession? *
State succession is the substitution of one state by another, the

latter taking over the rights and some of the obligations of the former.
State succession is either universal or partial
Universal succession takes place when a state is completely
annexed by another, or is dismembered or dissolved, or is created a£ a
result of the merger of two or more states.
Partial succession takes place when a portion of the territory of a
state is ceded or secedes or when the state loses part of its sovereignty
by joining a confederation or becoming a protectorate or a suzerainty.
(Oppenheim-Lauterpacht, Sec. 80; Fenwick, 152).
111. Mention some of the general effects of state succession.
(1) The allegiance of the inhabitants of the predecessor state is

transferred to the successor state.
(2) The political laws of the predecessor state are automatically
abrogated but the non-political laws are deemed
continued unless expressly repealed or contrary to the in stitutions of

the new sovereign,
(3) The public property of the predecessor state is nr, quired by
the successor state but not the tort liability and, in some cases, the
contractual liability of the former.
(4) Treaties entered into by the predecessor state are not
considered binding on the successor state except those dealing with local
rights and duties such as servitudes and boundaries.
112. Distinguish between succession of states and succession of

governments.
In succession of states, one state is 'supplanted by another. In
succession of governments, the integrity of the original state is not
affected as what takes place is only a change in one of its elements, the
government. Thus, when the Republic of the Philippines was converted
into a parliamentary government in 1973, the state known as the
Philippines itself remained unchanged.
113. What are the general effects of a change of government?

*
Where the change is effected by peaceful means, such as by
amendment of the Constitution, the new government inherits all the
rights and obligations of the old government.
Where the change is effected by violence, the new government
also inherits all the rights of the old government. With regard to the
obligations, however, the same may be rejected if they are of a
political complexion but must be respected if they are the
consequence of the routinary acts of administration of the old
government.
Thus, debts incurred by the old government for the purchase of
military equipment used against the new government may be
disowned by the latter after it shall have defeated the former. On the
other hand, postal money orders purchased from the old government
in the ordinary course of business must be honored by the new
government. (United States /for George W. Hopkins] v. Mexico,
Opinion of Commissioner, 1927, 42).
I
Chapter VI
RECOGNITION
114. What is recognition?*

It is an act by which a state acknowledges the existence of
another state, a government or a belligerent community and
indicates its willingness to deal with the entity as such under
the rules of international law.
115. What is the nature of recognition?

The general view is that it is declaratory'and discretion-
ary or political, that is, that it merely affirms an existing fact,
like the possession by the state of all its essential elements,land
that it may be granted or withheld at pleasure.
The minority theory, on the other hand, holds that
recognition is constitutive and compulsory or legal, meaning
that it is the act of recognition that constitutes the recognized
entity into an international person and that such act may be
compelled once the elements of international personality are
established. (Briefly, 124; Bishop, 232-233).
116. Who has the power of recognition under our Con-
stitution? *
It is the President of the Philippines, by virtue of his
authority to send and receive diplomatic representatives, to
enter into treaties, to establish blockades, and in general to act
as the foreign policy spokesman of the nation. (Constitution,
Art. VII).
117. What are the forms of recognition? Explain each
briefly.
Recognition may be either express or implied.

Express recognition may be verbal or in writing. It may
41
be made through a formal proclamation, a stipulation in a trea-

ty, a letter or telegram, on the occasion of an official call, etc.
Implied recognition is effected when the recognizing andJ
recognized states enter into a treaty regulating their relations
in general or ydien they exchange diplomatic representatives.
(Hack worth, 168).
In the case of the belligerent community, the recognition
by the legitimate government is implied when it blockades a port
held by the former. Other states may manifest recognition by
observing neutrality in the conflict. (Bishop, 261).
In every case, it is important “that the act constituting
recognition shall give a clear indication of an intention (1) to
treat with the new state as such, or (2) to accept the new
government as having authority to represent the state it pur-
ports to govern and to maintain diplomatic relations with it, or
(3)vto recognize in the case of insurgents that they are entitled
to exercise belligerent rights.” (Hackworth, 166).
118. What is the effect of common membership in the
United Nations of states not recognizing each other?*
In practice, such states are deemed to recognize each
other only within the organization and not elsewhere. Thus,
the Philippines and the Soviet Union dealt with each other
within the United Nations, of which they are both charter
members, but did not otherwise maintain diplomatic
relations, until they expressly recognized each other in 1975.
119. To what may recognition be extended?*
Recognition may be extended:
(1) To a state;
(2) To a government, either as dejure or de facto; or
(3) ^, To a belligerent community.
120. Distinguish between recognition of a state and
recognition of a government. *
(1) Recognition of a state includes the recognition of
its' government as the latter is an essential element of the
former;
RECOGNITION 43
recognition of a government, on the other hand, does not

necessarily signify the existence and recognition of a state as
such government may not be independent. (Hackworth, 166;
Fenwick, 157).
(2) Recognition of a state is generally irrevocable while
recognition of a government may be withdrawn.
121. What are the practical criteria for the recognition of a

government? *
Asa matter of practice, states extend their recognition to
a new government only when it appears that:
(1) It has control of the administrative machinery of the
statewith popular acquiescence; and
(2) It is willing and able to comply with its international
obligations. (Fenwick, 159-162).
A government satisfying these requirements is usually
recognized as de jure. If it has not yet sufficiently demonstrated
compliance with these conditions, it may for the time being be
recognized as de facto.
122. What are the kinds of de facto government?*
The three kinds of de facto government are the following:
(1) That which is established by the inhabitants who rise
in revolt and depose the legitimate regime. Example: the Com-
monwealth under Oliver Cromwell which supplanted the
monarchy of Charles I in England.
(2) That which is established by the invading forces of one
belligerent in the territory of the other belligerent, the
government of which is also displaced. Example: the Japanese
occupation government in the Philippines which replaced the
Commonwealth government during World War II.
(3) That which is established by the inhabitants of a state
who secede therefrom without overthrowing its government.
Example: the government of the Southern Confederacy during
the American Civil War which, however, did not seek to
depose the Union government. (Co Kim Chan v, Valdez Tan KeK
75 Phil 131).
123. What is the Tobar or Wilson doctrine?
It is a doctrine which precludes the recognition of a

government established by revolution, civil war, coup d'etat or other
forms of internal violence until the freely elected ■ representatives of
the people have organized a constitutional f- government. !
The doctrine was first expressed in a treaty concluded in p 19G7 by the
Central American republics at the suggestion of Foreign Minister Tobar of
Ecuador and was reiterated by President Woodrow Wilson of the United
States in a public statement made in 1913.
124. What is the Stimson doctrine?
This doctrine precludes the recognition of any govern- ^

ment established as a result of external aggression.
Formulated by U.S. Secretary of State Stimson in 1932, it
was subsequently adopted by the League of Nations in a 1
resolution declaring that it was “incumbent upon the ,
Members of the League of Nations not to recognize any situa-
tion, treaty or agreement which may be brought about by j
means contrary to the Covenant of the League of Nations or to
the Pact of Paris.” (League of Nations, Official Journal, Sp.
Supp. 10111932j, pp. 87-88). ?
125. What is the Estrada doctrine? * t
Under this doctrine, which is attributed to Foreign g Minister Genaro

Estrada of Mexico, the diplomatic representatives in a country where a
political upheaval has taken place will deal or will not deal with‘whatever
government is in control therein at the time and either action shall not be
taken as a ■ judgment on the legitimacy of the said government. |
HM 45
I ‘li llovv would you do.I mgui ,h b< t t rrr ognitiori of (i </< /</i
government mol M of a ////■*> govern
ment’' *
(1) Uirnj'jul ion r/r ////(> j-> n l;jfjvejy permanent; recogni- t ion
./<■ /or/o is provisional
(2) Ibcogmtion dr fun> vests title to the properties of I In*
government abroad, recognition dr. (ado does not.
(3) Kerognition dr jurr brings about full diplomatic relations.
recognition dr jactr is limited to certain juridical relations. (Oppenheim-
Lauterpachl, 136-137).
127. In general, what are the effects of the recognition of a

state or government?
(1) Full diplomatic relations are established except where the

government recognised is de (ado,
(2) The recognized state or government acquires the right to sue
in the courts of the recognizing state.
(3) The recognized state or government is entitled to the
possession of the properties of its predecessor in the territory of the
recognizing state.
(4) All acts of the recognized state or government are validated
retroactively, preventing the recognizing state from passing upon their
legality in its own courts.
128. Is non-suability an effect of the recognition of a state or

government?
No, because whether a government is recognized or not, it would

enjoy immunity from suit in a foreign jurisdiction. To cite a “foreign
sovereign in the municipal courts of another state" would be “an insult
which he is entitled to resent” and would “vex the peace of nations.” (I)e
Haber u. Queen of Portugal, I7Q.Il 171).
129. The Soviet government entered into a contract with (l and

subsequently, not having been previously recognized by
the United States, sued him in a New York Court, alleging fraud and
breach of the agreement. Will the action be allowed? Explain. *
The Court held: “We reach the conclusion that 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. We may add that recognition, and, consequently, the
existence of comity, is purely for the determination of the legislative
or executive departments of the government. Who is the sovereign of
a territory is a political question/’ (Russian Socialist Federated Soviet
Republic v. Cibrario, New York Court of Appeals, 1923, 235 N. Y.
255).
130. Certain hides in Mexico belonging to X were seized by

the Carranza government, then engaged in civil war, and sold to
an American firm which brought them to New Jersey. Here an
action to recover them was filed by the former owner on the ground
that the seizure was invalid. At the time of this seizure, the
Carranza, government controlled about two-thirds of Mexico but
there was no government in that country recognized by the United
States. However, the United States, on October 19, 1915,
recognized the Carranza regime as a de facto government and, on
August 31, 1971, as the de jure government of Mexico. What was
the effect of these acts on the action for recovery? Explain.*
“When a government which originates in revolution or revolt

is recognized by the political department of our government as the
de jure government of the country in which it is established, such
recognition is retroactive in effect and validates all the actions and
conduct of the government so recognized from the commencement
of its existence. (Williams v. Bruffy, 96 U.S. 176, 178; Underhill v.
Hernandez, 168 U.S. 250,253. x x x).
“The principle that the conduct of one government cannot be
successfully questioned in the courts of another is ap-
lU'XXKJN ITION 47
plicable to a case involving the title to property brought within

the custody of the court, such as we have here, as it was held
to be in the cases cited, in which claims for damages were
based upon acts done in a foreign country, for it rests at last
upon the highest considerations of international comity and
expediency.” (Oetjen v. Central Leather Co., 246 U.S. 297).
131. What are the three stages of internal dissension?

They are simple lawlessness, insurgency and
belligerency. When the lawlessness spreads and develops a
political motivation, it becomes an insurgency; and an
aggravation of insurgency is a belligerency.
132. Distinguish between insurgency and belligerency.
*
(1) Insurgency is the initial stage of a belligerency;
belligerency is more serious and widespread.
(2) Insurgency is directed by military authorities;
beligerency is under a civil government.
(3) Insurgency is not usually recognized; belligerency
may be recognized.
133. What are the usual conditions for the recognition of

belligerency? *
(1) There must be an organized civil government direct-

ing the belligerency.
(2) The rebels must occupy a substantial portion of the
territory of the state.
(3) The conflict between the legitimate government and
the rebels must be serious, making the outcome uncertain,
(4) The rebels must be willing and able to observe the
laws of war. (Wilson and Tucker; 69).
134. What are the consequences of a recognition of
belligerency? *
Prior to recognition, the rebels shall be considered subject to the
authority of the legitimate government and punishable for their acts
under its municipal laws. Responsibility shall attach to the legitimate
government and not to the rebels for any damage they may cause
third states.
After recognition, the belligerent community is treated as an
international person for purposes of the conflict, and its relations with
the legitimate government will thenceforth be governed by the laws
of war; e.g., the rebels will no longer be punishable under municipal
law when captured but wiil be entitled to treatment as prisoners of
war. As for third states, their claims must now be enforced against
the rebel government itself, and they must maintain strict neutrality
unless they wish to openly join the conflict. (Id, Fenwick, 145-146).
Chapter VII
THE RIGHT OF EXISTENCE AND - SELF-DEFENSE
135. What is the most important right of a state? *
It is the right of existence and self-defense, which has also been

described as the most comprehensive, as all the other rights of the state
flow from it. In the exercise of this inherent right, the state may take such
measures, including the us.e of force, as may be necessary to counteract
any danger to its existence.
136. Is there any limitation on the use of force in the exercise of

this right? *
Yes. Any forcible measure taken in the exercise of this right must
be justified, in the words of U.S. Secretary of War Daniel Webster, “by a
necessity of self-defense, instant, overwhelming, and leaving no choice of
means and no moment for deliberation.” Furthermore, they must “be
limited by the necessity and kept clearly within it. ” (Wilson and Tucker,
18).
137. Does the possibility of attack from the state justify another
state in attacking it first?
Grotius vigorously denounced the “intolerable doctrine of some

writers that by the law of nations we may rightly take up arms against a
power which is increasing, and may increase so as to be dangerous.”
Equity, he contended, was entirely opposed to the idea that the possibility
of being attacked gives us the right to attack on our part; it was only when
there was just ground of war on other counts that the growing strength of
a rival might properly influence a decision to go to war. (Fenwick 232).
On the other hand, Elihu Root declared in 1914: “It is well
understood that the exercise of the right of self-protection may and
frequently does extend in its effects beyond .the limits
49
of the territorial jurisdiction of the state exercising it. The

strongest example probably would be the mobilization of an army
by another power immediately across the frontier. Even- act done
by the other power may be within its territory. Yet the country
threatened by the state of facts is justified in protecting itself by
immediate war.”
138. Cite historical instances when the right of existence

and self-defense was invoked to justify armed attack in the
absence of prior belligerent acts.
When Russia mobilized in 1914, Germany immediately

declared war against it on the ground of self-defense.
In 1807, Great Britain seized the Danish fleet in order to
prevent it from falling into the hands of the French, with whom
the British were at war.
Korea was invaded by Japan in 1904 to prevent Russia, its
enemy then, from taking over the country.
Russia, on the other hand, attacked Finland in 1939 as a
strategic measure to defend itself from an anticipated German
invasion. (Fenwick, 229-230).
139. What is meant by the balance of power? Discuss. *
Vattel described it as “an arrangement of affairs so that no

state shall be in a position to have absolute mastery and
dominion over others.”
The Congress of Vienna of 1815, the Crimean War of 1854,
the Congress of Berlin of 1878, the Triple Alliance and the Triple
Entente before World War I, and the groupings between the
Allied and Axis Powers during World War II were all motivated
by balance of power considerations and based on the
fundamental right of self-defense. There is now a “balance of
terror” between the NATO and the Warsaw Pact states.
140. What is aggression? *
Aggression is the use of armed force by a state against the

sovereignty, territorial integrity or political independence of
another state or in any other manner inconsistent with the
T 1 I K H K i H I or K X I S T K N O K A N O SfXf-'-fjf'.ffcNftK 51
U.N. Charter. {Resolution of the (ieneral Awembly, December II.
1 11. What specific acts constitute aggression? *
The following are considered acts of aggression, whether or

not there is a declaration of war:
ia) vThe invasion or attack by the armed forces of a state of the

territory of another stateôr any military occupation, however
temporary, resulting from such invasion or attack, or any annexation by
the use of force of the territory of another
^ state or part thereof; r*
(b) ^/Bombardment by the armed forces of a state against the
territory of another state;
(c) OThe blockade of the ports or coasts of a state by the armed
forces of another state;
(d) v?\n attack by the armed forces of a state on the land, sea or
air forces, or marine and air fleet of another state;
(e) yThe use of armed forces of one state which are within the
territory of another state with the agreement of the receiving state, in
contravention of the conditions provided for in the agreement or any
extension of their presence in such territory beyond the termination of
the agreement;
uO IÎÎ
(f) v^he action of a state in allowing its territory, which it has

placed at the disposal of another state, to be used by that other state for
perpetrating an act of aggression against a third state;
(g) The sending by or on behalf of a state of armed force against
another state of such gravity as to amount to the acts listed above, or its
substantial involvement therein.
142. W'hat is intervention? Can it be justified on the ground of

self-defense?*
Intervention is an act by which a state interferes with the domestic

or foreign affairs of another state through the use of force or threat of
force.
BCFTWfLTBBSB?
LVTLKN'A'l' lON AL L AW KEV1EW1SK
As a matter of fact, self-defense is the only accepted justi-

fication under present international law for intervention on
the part of part icular states. However, it may also be
undertaken by the Security Council for the maintenance of
international peace and security, as a measure against
oppression, and on humanitarian grounds.
143. Cite a contemporary example of intervention on the ground
of self-defense. *
?
In 1962, President John F. Kennedy, upon being informed of the

establishment of Russian missile bases in Cuba, which is only ninety
miles away from the United States, declared a “quarantine” on all
vessels bound for that country with missiles equipment, announcing
that such vessels would be seized by American armed forces if they
insisted, pn their destination.
This action was taken as a measure of self-defense inasmuch as
it was felt by the American government that such bases, if allowed to
remain in Cuba, would be a menace to the national security of the
United States.
144. Does the United Nations Charter recognize the right to

existence and self-defense? *
Yes, in Article 51, which provides: vV
“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 for the maintenance of
international peace and security, x x x.”
145. What are the conditions for the proper exercise of the right
of self-defense under the aforementioned provision of the U.N.
Charter? *
(1) There must be an armed attack.

(2) Self-defensive action taken by the attacked state must be
reported immediately to the Security Council.
THE RIGHT OF EXISTENCE AND SELF -DEFENSE 5 3
(3) Such action shall not in any way affect the right of the
Security Council to take at any time such action as it deems
necessary to maintain or restore international peace and security.
146. Should Article 51 of the United Nations Charter be

interpreted as limiting the right of self-defense to “a Member of
the United Nations” which may be subjected to armed attack?
Explain.
While Article 51 may seem to suggest so, the proper inter-

pretation is to recognize this right in every state, whether or not a
member of the United Nations, inasmuch as the right of self-
defense is inherent in every state and not dependent on the
consent of other states or on membership in any international
organization.
Chapter VIII
THE RIGHT OF INDEPENDENCE
147. What is meant by independence? *
It has been described variously as the right of national self-

government, the freedom of a state from control by smother
state, or the right of a state to direct both its internal and
external affairs without dictation or interference from others.
148. Is independence synonymous with sovereignty? Ex-

plain.
Strictly speaking, no. Sovereignty is the broader term in-

sofar as it refers to the supreme and uncontrollable power in-
herent in the state by which such state is governed. Thus
understood, sovereignty is considered to have two aspects, in-
ternal and external
Internal sovereignty is the freedom of a state to manage its
domestic affairs. External sovereignty, or the freedom of the
state to direct its external or foreign affairs, is known also as
independence.
149. Does the United Nations Charter recognize the right

of independence?
Yes. In Article 2, par. 4, of the Charter, it is provided that

“all Members shall refrain in their international relations from
the threat or use of force against the territorial integrity or
political independence of any state, or in any other manner in-
consistent with the Purposes of the United Nations/'
Moreover, in the Declaration Regarding Non-Self- Go
veming Territories in Chapter XI, the members of the United
Nations assume in these territories the obligation “to develop
self-government, to take due account of the political aspirations
of the peoples, and to assist them in the pro-
54
gmssive development of their free political i/wtitutioms, &<> cording to
the particular circumstances of each tenubory a rtf its peoples and their
varying stages of ad vancement/' '/Lt,
150. Can the independence of a state be really absolute? In other

words, can a state “Jive its own life without interference from others?”
Explain.
No, for the simple reason, as Fenwick states, that in- x

dependence means only freedom from control by any other state,
not freedom from the restrictions that are binding upon all states.
Like the liberty of the individual who must submit to limitations for
the benefit of the community, the independence of a state must be
restricted by the requirements of the international society.
Thus, a state, although independent, may not employ force
or even the threat of force in its relations with other states, or refuse
to observe treaties in good faith, or to share with other states the
peaceful use of the open seas, nor may it reject certain rules that
directly impair its freedom of action such as those imposed upon
neutrals with respect to belligerent rights. Even within its own
domain, the state is limited by such rules as the maintenance of the
international standard of justice, the observance of basic human
rights, and the exemption from its jurisdiction of certain persons
and property.
151. What has been described as the correlative duty of the

right of independence?
Every state is under the correlative obligation of non-

intervention in view of its own independence. Even as it expects its
independence to be respected by other states, so too must it be
prepared to respect their own independence.
152. Mention some international declarations against in-

tervention.
(1) The United Nations Charter provides that nothing

contained therein shall authorize the organization “to in-
tervene in matters which are essentially within the domestic

jurisdiction of anv state.’*
(2) The U.N. Declaration of the Rights and Duties of States
provides that “every State has the duty to refrain from intervention
in the internal or external affairs of any other State.”
(3) A similar provision appears in the Montevideo Con*
vention of 1933.
(4) The Charter of the Organization of American States •
provides that “no State or group of States has the right to intervene,
directly or indirectly, for any reason whatever,>inthe internal or
external affairs of any other State. The foregoing principle prohibits
not only armed force but also any other form of interference or
attempted threat against the personality of the State or against its
political, economic, and cultural elements.”
(5) The Hague Convention of 1907 provides that “the
Contracting Powers agree not to have ^course to armed force for the
recovery of contract debts claimed from the government of one
country by the government of another country as being due to its
nationals.’’ This embodies what is popularly known as the Drago
doctrine.
153. What were the antecedents of the Drago doctrine? *
In 1902, Great Britain, Italy and Germany established a

blockade against Venezuela in order to enforce certain contractual
and other claims against it, leading Foreign Minister Drago of
Argentina to formulate the doctrine that “a public debt cannot give
rise to the right of intervention. ’ \ .
This principle was later adopted in the Second Hague
Conference, but subject to the qualification that the debtor state
should not refuse or neglect to reply to an offer of arbitration, or,
after accepting the offer, prevent any compromis from being agreed
upon, or, after the arbitration, fail to submit to the award. This
qualification is known as the Porter resolution.
TUN IUOIIT or iNorrKNnrNor t/i
154. Is ( ho above-slated qualified lion still valid a* an ex-

ception to the rule against in ter veil lion?
It cannot be valid under the present rules of international

law because itvclashes with a fundamental principle of the
United Nations against the “threat or use of force" in interna-
tional relations.
Chapter IX <
THE RIGHT OF EQUALITY
155. What do you understand by the right of equality as an

attribute of states?
By this we mean that every state is entitled to the same

protection and respect as are available to other states under the
rules of international law. It does not mean parity in the number
of rights, as it is possible for one state to have more rights than
another; e.g., a coastal state would hav6 a right to a territorial sea
as distinguished from a state completely surrounded by land.
What is important is that, whatever the number of the rights of
the state may be, all of them are duly recognized and observed in
the international community.
156. Is the right of equality recognized by the United

Nations?
Yes. In Article 2 of its Charter, it is provided that “the

Organization is based on the principle of the sovereign equality of
all its Members.” Accordingly, all members of the General
Assembly are given one vote in the decision of cases or questions
before that body and are generally speaking eligible for positions
in the various organs of the United Nations.
157. Mention some other international agreements in

which the right of equality is recognized.
(1) The Montevideo Convention of 1933 provides: “States

are juridically equal, enjoy the same rights, and have equal
capacity in their exercise. The rights of each one do not depend
upon the power which it possesses to assure its exercise, but upon
the simple fact of its existence as a person under international
law.”
(2) A similar declaration is made in the Charter of the
Organization of American States, which further states that
58
'* H I , f'JMn oi
‘Tvery American 'Tate ba'j the duty to reepeoi too /;ght*, oo-
joyed by other eta tea in accordance y/ith inie/oaUonal jay/T
(.'{) Uikewine, the Uodaretion of Righto and Imtl&b ol Staten,

prepared by the International UaV Cornrnmion, contains a provision
that “every State has the right to equality in law with every other
State."
158. Would you Bay that the right to equality is absolute?

Explain.
Even from the viewpoint of legal rules, the right of equality

cannot be considered absolute. Under the United Nations Charter, for
example, non-procedural questions are decided by the Security
Council only with the concurrence of the Big Five, any of which may
defeat a proposal through the exercise of the “veto/' This is true also
with respect to amendments to the Charter. Moreover, these same
countries are entitled to permanent membership in the organ, in
contrast with all the other members which are elected for a term of
only two years and are not eligible for immediate re-election.
With regard to the elective membership of the Security Council,
and also the additional members of the Economic and Social Council,
not all states have equal eligibility therefor, as it is provided in the
amendment to the Charter that such members are to be distributed,
and not equally at that, among several specified regions. Thus, five
members of the Security Council must be elected from the African and
Asian states.
Criticize the following statement of VatteL* “A

dwarf is as much a man as a giant is; a small Republic is no
less a sovereign State than the most powerful Kingdom.”
It is valid insofar as it suggests that states, regardless of size,

are equal in the enjoyment of certain rights, such as the right of
discovery and occupation and the use of the open seas. However, it
does not take into account the realities of international life,
including the greater stakes of the more populous states in the
decision of questions affecting the entire community of nations.
In the General Assembly, for example, all members have

one vote regardless of the people they separately represent,
with the result that the decision of China, with a population
of more than one billion, would have the same weight, legally
speaking, as that of the one million inhabitants of Gabon. This
is because the right to vote is granted the states as such and
is not based on their proportionate representation of the
peoples of the world.
Chapter X
THE RIGHT OF TERRITORY
160. What are the components of the territory of a state? *
The territory of a state usually consists of the terrestrial

^domain, the maritime and fluvial domain, and the aerial do-
main.
161. What is the terrestrial domain?
This is the land mass on which the people live. It may be

integrate, as in the case of Iran, or dismembered, as in the case of
the United States, or may be partly bounded by water, like Burma,
or completely surrounded, like Iceland, or may consist of several
islands, like the Philippine archipelago.
162. What is the maritime and fluvial domain?
This consists of the bodies of water within the land mass and
the waters adjacent to the coasts of a state to a specified limit.
Included in the maritime and fluvial domain are landlocked lakes,
rivers, man-made canals, the waters in certain gulfs, bays and
straits, and the territorial sea.
163. What are internal waters?

Internal waters, also called national or inland, are
those found in the bodies of watdr within the land mass
and the waters in gulfs and bays up to the point where the
territorial waters begin.
164. What are boundary rivers? *

These are rivers which divide the territories of states,
like the St. Lawrence River between the United States and
Canada.
61
In the absence of a specific agreement between the riparian

states, the boundary line is laid on the middle of the main
navigable channel in accordance with the thalweg doctrine.
165. What is a bay? What is the nature of the waters in-

side a bay? Explain. *
* A bay is a well-marked indentation whose penetration is in such

proportion to the width of its mouth as to contain landlocked waters and
constitute more than a curvature of the coast.
An indentation shall not, however, be regarded as a bay unless
its area is as large as or larger than that of a semi-circle whose diameter
is a line drawn across the mouth of that indentation, or if the mouth is
less than twenty-four miles wide.
If the distance between the low-water marks of the natural
entrance points of a bay exceeds twenty-four miles, a closing line may
be drawn between these two low-water marks and the waters enclosed
thereby will be considered internal waters. (Convention on the
Territorial Sea and the Contiguous Zone, April 29, 1958, Art. 7).
166. What are the so-called historic bays?
These are bays whose waters are considered internal but which
should not have that character were it not for the existence of a
historic title. Examples are the Bay of Cancale in France, the Bay of
El-Arab in Egypt, and Hudson Bay in Canada. (Id.)
167. What are territorial waters?
These are the waters adjacent to the coasts of a state, excluding

the internal waters in bays and gulfs, which do not form part of the
open sea. This belt of sea is usually called the territorial sea.
IHh KIMH Of 'f \\YYXS OhY
168. What is the breadth of the territorial sea? *
The traditional three-mile rule which used to be u.c.forrmy

observed in determining the limits of the territorial sea ras fallen into
disuse and since then, in the absence of international agreement,
states have unilaterally fixer; the breacth of their respective territorial
waters. Thus, some states have claimed four miles, some eight miles,
some twelve miles and. more extreme in the case of Chile and Peru, as
many as 200 miles.
However, under the new Convention on the Law' of the Sea

which was concluded in 1982 in Jamaica and became effective on
November 16, 1994, the breadth of the territorial sea for all states has
been fixed at twelve miles'measured from the low-water mark of the
coast.
169. What are the methods generally employed in defining

the territorial sea? Explain. *
They are the normal baseline method and the straight baseline
method.
Under the normal baseline method^ the territorial „sea is
drawn from the low-water mark, of the_eoa£t (to the breadth
claimed) following its sinuosities and curvatures but excluding the
internal waters in bays and gulfs.
Under the straight baseline method, straight lines are made to
connect appropriate points on the coast without departing radically
from its general direction. The waters inside these lines are
considered internal. (1<L, Art 5).
170. When may the straight baseline method be employed?
This method may be employed in localities where the coastline

is deeply indented or there is a fringe of islands along the coast in its
immediate vicinity.
ISThllNATIONAl, I,AW REVIEWER
In either case, account may be taken, in determining particular

baselines, of economic interests peculiar to the region concerned, the
reality and importance of which are evidenced by long usage. I Id; A agio-
Norwegian Fisheries Case; I.C.J. l{<'ports, /.%/, J If)).
IJI. What constitutes the national territory of the Philippines?”
According to Article I, Section 1, of the 1987 Constitution:
The national territory comprises the Philippine archipelago,

with all the islands and waters embraced therein, anfy all the
other territories over which the Philippines has sovereignty or
jurisdiction, consisting of its terrestrial, fluvial and aerial
domains, including its territorial sea. the seabed, the subsoil, the
insular shelves, and other submarine areas. The waters around,
between and connecting the islands of the archipelago, regardless
of their breadth and dimensions, form part of the internal waters
of the Philippines.
172. How do we define our internal waters?
We define our internal waters according to the archipelago

doctrine as embodied in the last sentence of the above-cited provision.
The outermost points of our archipelago are connected with
baselines and all the waters comprised therein are regarded as
internal waters.
173. How do we define our territorial waters?
Our territorial waters are defined according to what we call the

historic right or treaty limits theory^
According to this theory, all the non-internal waters delineated
by the latitudes and longitudes specified in Article HI of the Treaty of
Paris of December 10, 1898, between the United States, are territorial
in character. They have been so
THE KUR1T OK TKHIUTORY 65
regarded by the rest of the world since Spain claimed them an such
after its discovery of the Philippine Islands in Jf>21 and such
recognition has vested historic right in us as successor in interest, to
such territorial seas.
However, under the 1982 Convention on the Law of the Sea,
of which the Philippines is a signatory, the territorial sea has a
uniform breadth of 12 miles measured from the low- water mark of
the coast.
174. What is the position of the Philippines regarding the

extent of its territorial and internal waters? *
The Philippine position was embodied in R.A. No. 3046, as

amended by R.A. No. 5446. which declared that:
(1) All the waters within the limits set forth in the Treaty of
Paris of December 10, 1898, between Spain and the 1 United States,
the Treaty of Washington of November 7, 1900, also between the
two countries, and the Treaty concluded by the United States and
Great Britain on January 2, 1930, have always been regarded as
part of the territory of the Philippines. T
/ (2) All the waters around, between, and connecting the
various islands of the Philippine archipelago, irrespective of their
width or dimension, have always been considered as necessary
appurtenances of the land territory, forming part of the inland or
internal waters of the Philippines.
(3) All the waters beyond the outermost islands of the
archipelago but within the limits of the boundaries set forth in the
afore-mentioned treaties comprise the territorial sea of the
Philippines.
(4) The baselines from which the territorial sea of the
Philippines is determined consist of straight lines joining ap-
propriate points of the outermost islands of the archipelago.
The definition of the baselines of the territorial sea of the
Philippine archipelago is without prejudice to the delineation of
the baselines of the territorial sea around the territory of Sabah,
situated in North Borneo, over which the Republic of the
Philippines has acquired dominion and sovereignty.
The 1982 Convention on the Law of the Sea accepted our
definition of internal waters according to the archipelago doc-
trim* but limited the territorial Bea for all states to twelve miles from
tb»r low water mark of the coast.
174a. What is the archipelago doctrine?
The Philippine position on the definition of its internal waters is

commonly known as the archipelago doctrine. This is a / . J u ' / . / j in
»j,<• ;,/*rorid sentence of Article I of the 1987 Constitution, which
follows:
The waters around, between and connecting the islands of
t.h<* archipelago, regardless of their breadth and dimensions,
form part of the internal waters of the Philippines.
As defined, our national territory comprehends as many

as 7,100 islands of varying sizes connected by waters of diverse
dimensions. Our position is that all these islands should be
considered one integrated whole instead of being fragmented
into separate units each with its own territorial sea. Otherwise,
the waters outside each of these territorial seas will be
regarded as high seas and thus be open to all foreign vessels to
the prejudice of our economy and the national security.
An archipelago is a group of islands, including parts of
islands, interconnecting waters and other natural features
which are so closely interrelated that such islands, waters and
other natural features form an intrinsic geographical,
economic and political entity, or which historically have been
regarded as such.
Hence, in defining the internal waters of the archipelago,
straight baselines should be drawn to connect appropriate
points of the outermost islands without departing radically from
the general direction of the coastyfeo that the entire archipelago
shall be encompassed as one whole territory. The waters inside
these baselines shall be considered internal and thus not subject
to entry by foreign vessels without the consent of the local state.
This theory is advocated by the Philippines, Indonesia, the
Mauritius, Fiji, and the Bahamas, all archipelagic states, and has
gained the support of the Organization for African Unity, a
number of Latin American states, Greece, Malta, Thailand, and
the People’s Republic of China.
Tho archipelago doctrine hurt boon ombodiod in the 1 UW/
Convention on tho Law of tho Hon, with tho modification that 'V '-h/
:vi'
archipelagic aoalanoH ahull ho donignntod through which for r :*r.
eign vessels ahull have tho right of pannago. ^ ^
17.r>. VVliat is a strait? What is tho character of the >v •

'
. . ->■ V u ’
fi* ■
waters A
in strait is a coinparativoly narrow passageway con necting two\
a strait? ^
largo bodies of water.
* ^VVi-
Where the distance between the opposite coasts is not more than
two marine leagues, or six nautical miles, the waters in the strait are rf- y*< r. t/i'’
considered territorial.
176. What is the continental shelf? Is it part of the territory of

the coastal state? * i■-■y-t ":f
The continental shelf refers (a) to the seabed and subsoil of the
submarine areas adjacent to the coast but outside the area of the
territorial sea, to a depth of 200 meters or, beyond that limit, to where
the depth of the superjacent waters admits of the exploitation of the
WWi
natural resources of the said area; or (b) to the seabed and subsoil of -‘ty.
similar submarine areas adjacent to the coasts of islands.
Insofar as it extends beyond the limits of the territorial sea, the
continental shelf is not regarded as part of the territory of the state,
although the state exercises exclusive sovereign rights for the purpose
of exploring it and exploiting its natural resources. (Convention on the
Continental Shelf April 29, 1958).
However, a growing number of states, including the Philippines,
now claim the continental shelf as part of their territory. Thus, we say
in Article I, Section 1, of our Constitution that our national^ territory
includes, among others, “the insular shelves."
177. What is the aerial domain?
The aerial domain is the airspace above the territorial domain

and the maritime and fluvial domain of the state/to the limits of the
atmosphere. This does not include outer space.
INTERNATIONAL LAW REVIEWER
ITS. What are the modes of acquiring territory?
Territory may be acquired by:

11) Discovery and occupation;
i2l Cession:
LT Conquest and subjugation;
U) Prescription; and
i5» Accretion.
179. Discuss discovery and occupation as a mode ol quiring

territory.
This is an original mode of acquisition by which terrritory not

belonging to any state/:>r terra nullius, is placed under the sovereignty
of the claiming state. The territory need not be uninhabited; it may still
be subject to occupation if the inhabitants do not possess a sufficient
degree of civilization as tested by contemporary standards.
Thus, although the American continent was inhabited by the
Indians at the time of its discovery and occupation, they were regarded
as possessed only of the right of occupancy and not of sovereignty over
the territory because of their relatively low culture vis-a-vis that of the
European explorers.
180. Are outer space and the open sea subject to discovery and
occupation? *
No, because they are res communes and belong to all mankind. As
such, they are outside the commerce of man and cannot be the object of
any mode of acquisition.
181. What are the requisites of an effective discovery and

occupation? *
The nationals of the discovering state, in its name or by its

authority, must first take possession of the territory. Thereafter, they
must establish thereon an organization or government capable of
making its laws respected.
In short, there must be possession and administration of the
territory.
I'WK KUUIT OK T KUKU'OUV 09
182. What is mount by il\e "inchoate title of discovery”?

Explain. *
\\ hero a state discovers territory but. does not take steps to actually
administer it. the right acquired is merely an inchoate title of discovery. This
will ripen into a full and valid title only if the requisites of a valid discovery and
occupation are complied with: and in the meantime it will serve as a bar to other
states also interested in the territory.
If administration is not undertaken within a reasonable time, the inchoate title of
discovery is lost or forfeited.
183. Title to the Island of Palmas was disputed between the

United States and the Netherlands. The former claimed by virtue
inter alia of a valid cession from Spain, which in turn had based its
right on discovery and occupation. The latter, on the other hand,
had been exercising rights of sovereignty over the island since
the eighteenth century and when the alleged cession was made
on December 10, 1898. How would you decide? *
While it was true that Spain had originally claimed the island by right
of discovery and occupation, it had not, however, followed up this claim
with a display of authority over the territory, whereas the Netherlands had
been exercising acts of sovereignty over it since the middle of the eighteenth
century without any protest from Spain.
Spain, in other words, had failed to ripen its inchoate title of
discovery by undertaking the administration of the territory. As
of December 10, 1898, therefore, the island could be considered as
belonging to the Netherlands and not to Spain, which
consequently had no right to cede it to the United States. (Island
of Palmas Case, 2 U.N. Rep. of Int. Arb. Awards, 831).
184. Is the rule announced in the Island of Palmas case

absolute? Explain.
No. In the Clipperton Island Case, France proclaimed
sovereignty over an island in 1858 but until 1887 exercised no
positive or apparent act of sovereignty over it. When Mexico later

claimed the territory in 1897, the arbitrator, while recognizing that
possession and administration are generally required for an effective
discovery and occupation, nevertheless held that—
l f territory, by virtue of the fact that it was completely

uninhabited is, from the first moment when the occupying State
makes its appearance there, at the absolute and undisputed
disposition of that State, from that moment the taking of
possession must be considered as accomplished, and the
occupation is thereby completed. (26A.J.I.L. 390/1932).
185. What is dereliction? What is its effect?
It is the physical withdrawal by a state from territory with the

intention of relinquishing or abandoning all legal claims over it. The
effect of dereliction is to make the territory terra nullius and, therefore,
subject again to occupation by other states.
186. What is cession?
Cession is a derivative mode of acquisition by which territory

belonging to one state is transferred to the sovereignty of another state
in accordance with an agreement between them. ,
An example is the cession of. the Philippine Islands by Spain to
the United States by virtue of the Treaty of Paris of December 10,
1898. This was a partial cession.
Another example is the cession of Korea to Japan under a treaty
concluded between them on August 22, 1910. This cession was total
and caused the extinction of Korea as a state.
187. What is subjugation?
It is a derivative mode of acquisition by which the territory of one

state is conquered in the course of war and is thereafter annexed io
and placed under the sovereignty of the conquering stated
Ar. iXvi.v.p.t' ;s the annexation of Abyssinia (now Ethiopia) b\
L;uly in
1SS. What is prescription?
Prescription is a derivative mode of acquisition by which territory

belonging to one state is transferred to the sovereignty of another state
by reason of the adverse and uninterrupted possession thereof by the
latter for a sufficiently long period of time. There is no fixed rule in
international law as to how long the territory must be held by the state
to be able to claim prescriptive title.
189. What is accretion?
It is a mode of adding to the territory of a state by natural process,

such as the gradual deposit of soil on the coast through the action of
the water, or by human labor, as exemplified by the reclamation
projects on Manila Bay and the polders of the Netherlands.
Chapter XI
THE RIGHT OF JURISDICTION
190. Define jurisdiction. *

Jurisdiction is the authority exercised by a state over per-
sons and things within or outside its territory, subject to certain
exceptions.
191. What are the kinds of jurisdiction?
Jurisdiction is either personal or territorial
192 What is personal jurisdiction? Discuss its basis and

extent.
Personal jurisdiction is the power exercisable by a state

over its nationals. It is based on the theory that a national is
entitled to the protection of his state wherever he may^ be and is
therefore bound to it by a duty of obedience and allegiance. This
duty follows him even when he is outside the territory of his
state.
193. Give examples of the assertion by the Republic of the

Philippines of its personal jurisdiction.
Article 15 of the Civil Code provides that “laws relating to

family rights and duties, or to the status, condition and legal
capacity of persons are binding upon citizens of the Philippines,
even though living abroad. ' ’
Article 2 of the Revised Penal Code punishes certain of-
fenses even if committed outside Philippine territory, including
those against the national security and the law of nations as well
as those committed by public officers and employees of the
Republic in the discharge of their functions.
The Internal Revenue Code subjects to tax even nonresident
Filipinos on all their income, including those earned abroad.
194. What is territorial juriNtUetioit? IH NCIINM I in bnwU
It is the authority ot a state, hast'd on its riovoruignty and the right

ot domain* which it exercises over persons and pro perty within its
boundaries.
195. What is the extent of the territorial jurisdiction of a state?
Generally speaking, we may say that the authority of a state is

co-extensive with its territory, that is, it extends over its terrestrial
domain, its maritime and fluvial domain, and its aerial domain.
However, there are several significant exceptions to this principle.
196. How would you describe the jurisdiction of the state

over its land domain?
This jurisdiction is exclusive in the sense that no act or process

can take effect within the land domain without the consent of the
territorial sovereign. If, for example, a fugitive from a foreign state
is arrested here by its own law- enforcement authorities without our
permission, the Philippines will have a right to protest against this
breach of our territorial integrity.
'i
197. What is the extent of a state's jurisdiction over its
internal waters, like its rivers and lakes?
Such waters are assimilated to land territory and jurisdiction

over them is the same as jurisdiction over the land domain.
198. What is the jurisdiction of a state over foreign vessels

within its territorial waters? *
Over foreign public vessels, the local state exercises neither

civil nor criminal jurisdiction/provided they are not engaged in
priy^te business.
Over foreign private or merchant vessels, the local state

exercises full civil jurisdiction. Criminal jurisdiction may or may not
be asserted in accordance with the English or French rule.
199. Compare the English and French rules on criminal

jurisdiction over merchant vessels in a foreign port. *
Under the English rule, the local state assumes jurisdiction over
all offenses committed on board foreign merchant vessels within its
ports, except only those of a petty nature or affecting the discipline of
the ship: This rule stresses the territorial principle of criminal
jurisdiction.
Under the French rule, the flag state has jurisdiction over all
offenses committed on board its merchant vessels unless such crimes
are of such a grave nature as to compromise the peace of the foreign
port in which it may be anchored. This rule stresses the nationality
principle.
In effect, both rules give the local state jurisdiction over the
offense if it is so serious as to disturb the peace of the territorial
sovereign but leaves to the flag state the trial of all other crimes
committed on board the vessel.
200. Assuming that there is a difference between the two rules,
which rule is observed in our jurisdiction? *
In People v. Wong Cheng, 46 Phil. 729, the Supreme Court held

that the English rule is observed in this jurisdiction. Thus, mere
possession of opium aboard a foreign merchant vessel in transit over
our territorial waters is not punishable here because it does not
disturb the public order. But smoking the narcotic on board such
vessel, or unloading and landing it, is triable in our jurisdiction as
such acts will cause the drug to produce its pernicious effects in our
country.
201. What is the extent of a state’s jurisdiction over its

territorial sea?
Subject to certain exceptions, its jurisdiction is coextensive
with the territorial sea, to its maximum breadth.
THE RIGHT OF JURISDICTION 75
202. What is the contiguous zone? *
This refers to the waters beyond the territorial sea but

not in excess of twelve miles from the outer limits of the
territorial sea over which the coastal state exercises a
protective jurisdiction to prevent the punish infringements
ofjits customs, fiscal, immigration or sanitary regulations.
(1982~Convention on the Law of the Sea).
203. What is the patrimonial sea or economic zone?
It is that expanse of sea extending two hundred nautical

miles from the coast or baselines of the state over which it
asserts exclusive jurisdiction and ownership over all living
and non-living resources found therein. {Ibid.)
204. Does the state exercise any jurisdiction over the

continental shelf? Explain.
The coastal state has the sovereign right to explore the

continental shelf and may erect on it such installations and
equipment as may be necessary for the exploitation of the
natural resources therein. This right does not affect the
nature of the superjacent waters as open seas and their use
as such by other states should not be impaired or disturbed.
Immediately above the installations, however, the coastal
state may establish on the open sea a safety zone with a
radius of 500 meters over which it may exercise jurisdiction.
(Convention on the Continental Shelf, supra).
205. What is the extent of the state’s jurisdiction over

the aerial domain?
The consensus is that the subjacent state has

jurisdiction over the air space above it to the upward limits
of the atmosphere/ Hence, no foreign aircraft, civil or
military, may passthrough the aerial domain of a state
without its consent.
IK n'r.'Al, I.A\A HKVIKWKK
ô n h , f , ttff ittihtrt/iHnfinl f u/il A viution signed at Chicago,

/ Itrf.il
/J*< 7/I,«I t*r* ♦ !** r wiled f* ve air freedoms?
Cf I t.t. \/t fly across foreign territory without
*'h 11,*> ittuiAtfth to land for non-traffic purposes.

*'h 7 r,/> Utn/Ufftt io put down traffic originating in the
***** of *M.»;
M, '| to embark traffic destined for the state
of » M. a,/ / ,ftff
% I \,t, to embark traffic destined for, or to put
oo so, * r *»ftp f ,,ff,)npr Utyttk, a third state.
Is outer space subject to the jurisdiction of any
fcUUO
toe open sea, outer space, or the region beyond the

fcw/tr/s a ionosphere, is not subject to the jurisdiction of any *****
( s p a c e a n d other celestial bodies are not susceptible of
rwtptntfi appropriation/ However, astronauts and their ss bob tea
a///! shipment, while in outer space, remain under lb*-* po’/vh/>y//n
o f the state that sent them. (Treaty on Prin- nfilai) Oouernlng
Activities of States in the Exploration and Hue nf tprfvr Space,
Including the Moon and Other Celestial
Hodlttfy /00’/'/
*
/H'\ Wh«t are the limitations on the exercise of jurisdiction by
L, slots over persons and property within its territory? plain *
V/h/Mn HA *rtm territory, a state may not exercise jurisdiction

over
111 Hoftdgn states# heads of states, diplomatic represen-
b'V/<*s, ahd w/ti$uis to a certain degree.
!• oisign States and heads thereof are exempt because of
f,b^ eo'/sf sign stpodlby of states and on the theory that a con-
i/to y >ols non Id unduly '*vex the peace of nations/’ Diplomats
and 'oosnla so joy the exemption in order that they may have
foil trtM4)om )ft it £ discharge of their official functions.
niK Kumr or JUH I SDKTI ON 77
Foreign state property, including embassies, consulates.

and public vessels engaged in non-commercial activities.
By fiction of law, these are regarded as extensions of the
territory of the foreign state.
13) Acts of state.
As explained in Underhill v. Hernandez, supra, ‘'Every
sovereign state is bound to respect the independence of every other
sovereign state, and the courts of one country will not sit in
judgment on the acts of the government of another, done within its
own territory. Redress of grievances by reason of such act must be
obtained through the means open to be availed of by sovereign
powers as between themselves.”
(4) Foreign merchant vessels exercising the rights of in-
nocent passage or arrival under strbss.
v/Innocent passage means navigation through the territorial sea
of a state for the purpose of traversing that sea .-without entering
internal waters, or of proceeding to internal waters, or of making for
the high seas from internal waters, as long as it is not prejudicial to
thetpeace,vgbod order onêcurity of the coastal state.
Arrival under stress or involuntary entrance may be due to
lack of provisions, unseaworthiness of the vessel, inclement
weather, or other force majeure, like pursuit by pirates.
(5) Foreign armies passing through or stationed in its
territory with its permission.
As held in The Schooner Exchange v. McFaddon, 7 Cranch 116,
“. . . without any express declaration waiving jurisdiction over the
army to which this right of passage has been granted, the sovereign
who would attempt to exercise it would certainly be considered as
violating his faith. By exercising it, the purpose for which the free
passage was granted would be defeated, and a portion of the military
force of a foreign independent nation would be diverted from those
national objects and duties to which it was applicable, and would be
withdrawn from the control of the sovereign whose power and whose
safety might greatly depend on retaining the exclusive command
and disposition of this force.”
imi:i<f|.vrn»ll lh I MV
YH
(ti) Niirliolltii | M'i >ii tin i ui pmpiiHy, I m l u t U u i t , < n I ' t W i M I

IlmiH llUt) I III) lllllll'.ll I IMI INIIII, 0^01 ivllll ll I I l l f f t ' / f h ‘/ IIUMII , waive
|ui ihilii I inn
KHamplus nl such uginemuntH iin; Mm < ’OUVOMMOM o n Mm I 'i
iv lieges nnil 111 null nil inn nl Min 11 hMinil I I ill I ons, Min * jdnVgh I
inn mi Mm Mi iv lieges nnil I n nun nil lug nl' t 1 pur jail/,ml A gem nnil
Mm III' MM liases Tmaly, which modified Mm * nstommy ohempl miih
niiilui (h), above,
I low nmy u slain mMcml IIM jurisdiction beyond Its

territorial hniiudaricsV IU plain "
A stale limy extend Its |ili Isdh I Inn beyond II,s bonm dm ms:
(1) Through assertion nl Its poitmnal l j<m over
its nationals shroud. [ t U i e n.i/ i l m i u t i n n m u l e i I J u t u M n n N o . I
M2).
(2) lly virtue nl its lelaUmis wllli ntlmt steles or territories, ah
wlmn it establishes a i nlnnlal pi n| m l m a I a, ni a i;ou- dominium, nr
administers a Must ten limy, > u m Copies nneniy territory in Minn nl
war,
(II) AH a cniism|uuure nl thn waiver nl |ni isdh I inn I»y the local
state over persons and things wllliln Its tmiitory, illustrated by Mm
foreign annv stationed iheieiii which is still under l lm jurisdiction of Mm
state Mini seel It,
(4) Through acpuisitinn nl’ ex 11 aim i II ui ial rights This practice
has become discredited, hnwevei, Imnanan nl the rise of nationalism
and thn doctrine nl llm snveieign eijitfdity nl staLes,
In this connection, e x l e n i f f o f t d n v diHers bom e \ ! i n t e r
l i t o r i u l i l y in that thn former refers tn l lm exuniptlnn nl |mi sons and
thiVigs from thn local jurisdiction on 1,1m liasls ol international
custom wlmrnaH tlm latter applies only In parsons and is based on a
treaty or convention.
(5) Through tlm uHnrciau nl cm tain lights on thn npnn sea,
specifically; (a) over its own vessels, Including alrnaft when flying over
the open sea; (h) nvm plialeSi (c) under the d o c t r i n e o f h o i [ n i n m l l ,
by virtue nl which Its public vessels, including aircraft, may continue tn
pursue and appiabend on the
■v. THE RIGHT OF JURISDICTION 79
open sea any foreign merchant vessel which has violated its laws,
provided the pursuit is commenced while the offending vessel is within
the marginal waters or the contiguous zone of the coastal state and
such pursuit is uninterrupted; and (d) as a belligerent in time of war,
to visit and search neutral merchant vessels. (Convention on the High
Seas, signed April28,1958).
(6) Through the exercise of its power to punish certain offenses
against its national interests, such as those affecting its security or
the integrity of its currency, even if the offenders are aliens.
210.What are the generally recognized principles of criminal

jurisdiction?
According to Harvard Research, they are the:

(1) Territorial principle, which vests jurisdiction in the state
where the offense was committed;
(2) Nationality principle, which vests jurisdiction in the staê
of the offendep^
Protective principle, which vests jurisdiction in the state
whose national interest is injured, as in the case of counterfeiting,
treason or espionage;
(4) Universality principle, which vests jurisdiction in the state
which has custody of the offender, as in the case of piracy; and
(5) âssiVe personality principle, which vests jurisdiction in
the state of the offended party.
211. What is meant by the “objective territorial

jurisdiction”? *
The widely-accepted illustration is that of a man who fires a

shot in State A and kills somebody in State B just across the border.
State B would have the objective territorial jurisdiction because the
shot took effect within its territory.
212. The Lotus, a French steamer, and the Boz-

kourt, a Turkish vessel, collided on the Aegean Sea, outside
territorial
so INTKKN ATIONAL LAW HLVILWLK
waters, resulting in the sinking of the latter whip arid the death of
several Turkish nationals. The Lotus, docked at Core stantinople, where
its officer of the watch at the time of the accident, a French national, was
subsequently convicted of manslaughter by the Turkish courts. France
protested on the ground, among others, that the matter was outside the
jurisdiction of Turkey inasmuch as the collision had taken place on the
open sea. Was this contention upheld? Explain.*
^ “The offense for which Lieutenant Demons appears to have been

prosecuted was an act—of negligence or imprudence—having its
origin on board the Lotus, whilst its effects made themselves felt on
board the Boz-kourt. These elements are, legally, entirely
inseparable, so much so that their separation renders the offense
f non-existent. Neither the exclusive jurisdiction of each of the
S
c occurrences which took place on the respective ships would appear
k calculated to satisfy the requirements of justice and effectively to
m
m protect the interests of the two States. It is only natural that each
c should be able to exercise jurisdiction and to do so in respect of the
C
incident as a whole. It is, therefore, a case of concurrent
C
► jurisdiction.” {The Lotus, P.I.C.J., Ser. A., No. 10, 1927, Hudson, World
r Ct. R. 20).
r
r
i 213. Is the doctrine announced in the Lotus Case still valid?
*
According to the Convention on the High Seas signed at

Geneva in 1958:
“In the event of a collision or of any other incident of

navigation concerning a ship on the high seas, involving the
penal or disciplinary responsibility of the master or of any
other person in the service of the ship, no penal or disciplinary
proceeding may be instituted against such persons except
before the judicial or administrative authorities either of the
flag state or of the state of which such person is a national. ”
THE RIGHT OF LEGATION
214. What is the right of Legation? *
It is the right of a state to maintain diplomatic reiaiioms with

other states. The right to send diplomatic representatives is known
as the active right of legation. The right to receive diplomatic
representatives is known as the passive right dt legation.
215. Strictly speaking, is a state obliged to maintain

diplomatic relations with other states?
No, as the right of legation is purely consensual If it wants to,

a state may shut itself from the rest of the world, as Japan did until
the close of the nineteenth century. However, a policy of isolation
would hinder the progress of a state since it would be denying itself
the many benefits available from membership in the international
community.
216. Who are the usual agents of diplomatic intercourse?

The diplomatic relations of a state are usually conducted
through:
(1) The head of state:
(2) The foreign secretary or minister, or
(3) The members of the diplomatic service.
Sometimes the state may appoint special diplomatic
agents charged with either political or ceremonial duties, such as
the negotiation of a treaty or attendance at a state function like a
coronation or a funeraL
217. At present, does the head of state normally undertake

diplomatic negotiation? Why?
There was a time when diplomatic negotiations were normally

undertaken directly by the head of state, but the prac-
M2 IN'I KIlNATIONAL L AW HhVli/// hf'
Lin* has fallen into disuse axcjqjt upon rare <Wtihihu*-*,

when the matter under consideraLion ifi of such significance 0 /
delicacy as to warrant no less than v/hat JS known as a ‘‘sum' mil
meeting.”
The conduct ol foreign affairs is now generally entrusted lo
(he foreign secretary or minister who, under the control of the
head of state, has administrative powers over the diplomatic
service and is authorized to speak on behalf of the state.
218. How are the regular diplomatic representatives classified? *
According to the Convention on Diplomatic Relations, which was

signed at Vienna on April 18, 1961, diplomatic representatives, as heads
of missions, are divided into three classes, namely:
(1) Ambassadors or nuncios accredited to heads of state.
(2) Envoys, ministers and internuncios accredited to heads of
state.
(3) Charges d'affaires accredited to ministers for foreign
affairs.
219. Is there any particular reason for the classification of

diplomatic representatives? Explain.
There was in earlier times, because direct communication with the

head of state depended then on the rank of the diplomat and only the
more powerful states were privileged to send diplomats of the highest
rank.
However, the right of the diplomatic representative to an audience
with the head of state is no longer considered significant inasmuch as
diplomatic matters are now usually discussed with the foreign
secretary, regardless of the diplomat’s rank. Moreover, even the
smallest and weakest states may now send diplomatic representatives
of the highest rank.
TUK RIGHT OK LOCATION 83
220. What is the diplomatic corps?
The diplomatic corps consists of the different diplomatic

representatives who have been accredited to the local or receiving
state. It is headed by a SdênTdu corps or dean, who is usually y \
the member of the highest rank and the longest service in the
state. In Catholic countries, the dean is the Papal Nuncio.
221. How is a diplomatic representative chosen?
The appointment of diplomats is not merely a matter of

municipal law for the receiving state is not obliged to accept a
representative who is persona non grata to it. Indeed, there have
been cases when duly accredited diplomatic representatives have
been rejected, resulting in strained relations between the sending
and receiving states.
To avoid such awkward situations, most states now observe
the practice of the agreation, by means of which inquiries are
addressed to the receiving state regarding a proposed diplomatic
representative of the sending state. It is only when the receiving
state manifests its agrement or consent that the diplomatic
representative is appointed and formally accredited.
222. When does the diplomatic mission commence? ✓
The head of the mission is deemed to have taken up his

functions in the receiving state either when he has presented ^ his
credentials or when he has notified his arrival and a true f copy of
his credentials has been presented to the government of the
receiving state. (Convention on Diplomatic Relations, supra, Art 13).
223. What are the usual documents carried by a

diplomatic representative?
(1) The letter of credence, or lettre de creance, by virtue of

which he is accredited to the receiving state with the request
11 11 n'l'H 11 VI lOhAI. I//SW IM -yVlIvW^M
I hoi lull loll h M i it I« 1 odll ,1 M * gi von to bis official

acts.
I'd 11 hi *U|»l« M iinf l« paaspoi t / ;
\'M I I il ol 11 • 1111 IMMI MH I i<HIC|
III Tho «i pi UM 01 i oilo hoolv, I or use jn ending
?*ecret i oiimiimli ill loiifi
*'l Wind MIo llo hnnlions of « diplomatic represeri* l ullvo?

*
Tho hnn I ions ol M diplomatic minion consist inter alia in:
(\) Knpi oannl log tin* sending state in the receiving ni ni
o
(V!) I'mloi l ing in tlm lecelving state the interests of the
wooding MI M< O mul il s nstionsls,
[A) IN ego! isting with the government of the receiving
si ale,
(l) ASCMI laining by all lawful means conditions and
dovolopmenls In (lie receiving state and reporting thereon to I
ho govoi mnonl ol the sending state.
(h) Ihomoling friendly relations between the sending and
loooiving slates and developing their economic, cultural o\nd
scion! il lc i elutions. (/</„ A vlt .7),
(d) In sumo esses, representing friendly governments at
I hoir i opuosl.
?'!IV Wind is Urn jiisUficiitioii for the immunities and
privileges enjoyed hy the diplomatic representative?
The traditional justification was the fiction of exter-

riloilalil y, which held that the diplomatic representative
and his suite, logofhoi with his residence and offices, were
legally on(sldo Min )1 1 1 'ladletinn ol the receiving state.
This l.hoory Ims boon discredited, however, and has
yielded lo I ho mndoMi view that such immunities and
privi- logos < nnstil ulo only tin exemption from the local
law based on l ho uooosfilI y ol sooiii'lug to tho diplomat
tiie fullest freedom in I ho porloi ms i ion ol Ills oil Ida I
functions.
//J» Wli.il, tui- eome of tbe more important of these ,l,|,!oini»tir iinmunit
jw; and privilege**? 54
A/norjf/ the more irnpor fnnt are the folioy/ing:

(I) '1 he per eon of o diplomatic agent shall bo inviolable
;jnd h<* aha 11 not be liable to any form of arrest or detention. 'I he
receiving eta to ehall treat birr; y/ith due respect and shall take all
appropriate steps to prevent any attack on his person, freedom or
dignity. (fd., Art. 2!)).
{/) A diplomatic agent shall enjoy immunity from the criminal,
civil and administrative jurisdiction of the receiving state, except in
certain cases as, for example, when the civil action deals with property
held by him in a private or proprietary cai>acity. (/d., Art 31).
(b) The diplomatic premises shall be inviolable, and the agents of
the receiving state may not enter them without the consent of the head
of mission. Such premises, their furnishings and other property thereon
and the means of transport of the mission shall be immune from search,
requisition, attachment or execution. {Id., Art. 22).
(4) The archives and documents of the mission shall be
inviolable at any time and wherever they may be. (Id., Art 24).
(b) The receiving state shall permit and protect free
communication on the part of the mission for all official purposes. In
communicating with the government and other missions, and
consulates of the sending state wherever situated, the mission may
employ all appropriate means, including diplomatic couriers and
messages in code or cipher. The official correspondence of the mission
shall be inviolable. (Id., Art. 27).
(b) Subject to its laws and regulations concerning national
security, the receiving state shall insure to all members of the
mission freedom of movement and travel in its territory. (Id., Art. 26).
(7) A diplomatic agent is not obliged to give evidence as a
witness. (Id., Art. 31).
(8) A diplomatic agent shall be exempt from all dues and faxes,
personal or real, national, regional, or municipal, except
) VA1 ,
I.AVV HI;VII:V\
Sfi i\n;i(N \ T M
m ivrt ,tm sI,(,-.tu,l i-as.% like the imposition of indirect taxes.

Th,
/ i . A r t .7/1. m.-s, ..... .. ft. u “' "¥»
Tin* »!»!.'«a*p>«r?01 th'
li t I ,nci. nf t he head of the mission, and
i; - -ion. including tin* residence oi MU IU,CH
n Li ^ rnit IIK nf truKimrl il(l.. Aft- 20).
227. W ho mnj waive the diplomatic immunities and pri\

ileges? *
The waiver may be made expressly by the sending state, li

may also be done impliedly, as when the person entitled to the
immunity from jurisdiction commences litigation in the local courts
and thereby opens himself to any counterclaim directly connected
with the principal claim.
However, waiver of immunity from jurisdiction in respect of
civil or administrative proceedings shall not be held to imply waiver
of the immunity in respect of the execution of the judgment, for
titntTifi IMII •
which a separate waiver shall be necessary. (Id, Art. 32).
228. What is the duration of the diplomatic immunities and

privileges? * i
Unless waived, diplomatic immunities and privileges

begin from the moment the diplomatic agent arrives in the ter-
ritory of the receiving state or, if already there, from the mo-
ment his appointment is notified to its government, and lasts
until he leaves, which must be within a reasonable period
following the termination of his mission.
With respect to his official acts, however, his immunity
from the jurisdiction of the receiving state continues inde-
finitely as these acts are attributed not to him but to the send-
ing state. But this rule does not apply to his private acts, for
which he may later be sued or prosecuted should he return’in a
private capacity to the receiving state or fail to leave it in due
time after the end of his mission. (Id, Art. 30). I
i
*
i
I
1
THK RI(i l IT OF LFOATION 87
225). Who else besides Lite head of the mission are entitled to
diplomatic immunities and privileges?*
The diplomatic immunities and privileges are also enjoyed by the

diploma tic suite or retinue, which conisists of the official and unofficial
staffs of the mission.
The official staff is made up of the administrative and technical
personnel of the mission, including those performing clerical work, and
the member of their respective families. The unofficial staff is composed
of the household help, such as domestic servants, butlers, cooks, and
chauffeurs employed by the mission.
As a rule, however, domestic servants enjoy immunities and
privileges only to the extent admitted by the receiving state and insofar
as they are connected with the performance of their duties. (Id., Art. 37).
230. Do we have any law governing the immunity of members of

the diplomatic suite from the local jurisdiction? *
Yes. Under R.A. No. 75, it is provided that immunity from

judicial writ or process shall not be granted to: (a) citizens or
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 into such service; and (b) domestic servants
of an ambassador or minister, unless their names have been registered
with the Department of Foreign Affairs before the issuance of the
process and transmitted by the Department to the Manila Police
Department.
231. How is a diplomatic mission terminated? *
A diplomatic mission may come to an end by any of the usual

methods of terminating official relations, like death, resignation,
removal, accomplishment of the purpose, and abolition of the office.
These are governed by municipal law. Under international law, the
more important modes are recall and dismissal.
i; , ,}] M||\ |t, drill lilt It ll b v t hi* MI'I'IVIMK Mhd<‘ wh I'll (Iw l,,.i
> J4^loirMl b*vom» ♦ /HtutH'i mm grata to it for liny
i» t * i U h c t h»» dt’iiund lrejected by t hr wnihni' nhiir, the \ > i.ilr nu\
renort In the more driiHtir method of d n In m< <tn < of which the offending
diplomat in sum [ »t !\ pr« . nlcd with hi* passport and asked to leave the
hi» ,*ut break of war between the sending and receiving ,i,rr r. u
r.nmate" their diplomatic relations, which are usually s, \ ,'HAI U tore the
actual commencement of hostilities. f£xUnction of either the sending or
the receiving state will also automatically terminate diplomatic relations
between them. In ease of a change of government by violence, diplomatic
rela- t ions are as a rule only suspended until the new government is
rtfogni/ed by the other state.
232. W ill the termination of diplomatic relations also

terminate consular relations between the sending and receiving
states? *
\o. because consular relations rest on a different basis. Consuls

are not diplomatic representatives but only commercial agents of the
sending state.
233. Briefly discuss the development of the institution of

consuls.
The institution of consuls dates back to as far back as six

centuries before Christ, when the Egyptians allowed the Greeks at
Naucratis to choose from among themselves a magistrate who would
apply to them the laws of their own country. Later, the Greeks started
sending to foreign jurisdictions their own protectors or prostrates
(proxenoi), a practice modified by the Romans with their appointment
of the praetor peregrinus, who interpreted the law between foreigners
or between Romans and foreigners. Following the conquest of Rome,
the Visigoths established a foreigner’s court, presided by telunarii,
which applied to foreigners their own national laws rather than the
law of the territorial sovereign. Similar
THE RIGHT OF LEGATION
89
courts were created by the Chinese in the eighth century and by the
Arabs in the ninth century.
With the development of commerce in the Mediterranean
cities and the Near East, numerous treaties of capitulation, as they
were called, exempted European nationals from the local jurisdiction
and made them triable by their own consuls according to their
national laws. Eventually, in view of their growing importance,
consuls acquired official character when they were commissioned
directly by their own governments instead of only by their
countrymen.
The rise in nationalism and the concept of sovereignty,
however, gradually decreased the power of the consuls until they
retained only the authority to act on commercial and related
matters. Nevertheless, the continuing expansion of international
commerce, coupled with the improvement of transportation and
communication in the seventeenth and eighteenth centuries, led to
the further growth of consular services.
At present, consular activities are governed by a vast network
of bilateral agreements and by the Convention on Consular Relations
signed at Vienna on April 24,1963.
234. What are the kinds of consuls? *
They are the consules missi and the consules electi.

The first are professional or career consuls who are nationals
of the sending state and are required to devote their full time to the
discharge of their duties.
The second may or may not be nationals of the sending state
and perform their consular functions only in addition to their regular
callings.
235. What are the grades or ranks of consuls? *
According to Article 9 of the Convention on Consular

Relations, supra, they are:
(1) Consul-general;
(2) Consul;
\>0 N II !( N NT H 'NAI, L AW IIL V I L WLK
Y uv consul, mul \P
t'onsuhu ngunl.
?:Uv \V here do consuls derive their nuihority? *
Consuls derive t heir authority from two principal sources, to

wit, the loiter patent or let t rede provision, which is the commission
issued by the sending state, and the exequatur, which is the
permission given them by the receiving state to perform ■ their funct
ions t herein.
’2:17. Mention sonic of the duties of consuls.

■
I
Among the important duties of consuls are the j
following:
(1) Protection of the interests of the sending state and \
its national in the receiving state. I
(2) Promotion of the commercial, economic, cultural and f
scientific relations of the sending and receiving states. j
(3) Observation of conditions and developments in the
receiving state and report thereof to the sending state.
(4) Issuance of passports and other travel documents to
nationals of the sending state and visas or appropriate documents to
persons wishing to travel to the sending state. |
(5)
Supervision and inspection of vessels and aircraft of [
the sending state. (Convention on Consular Relations, Art 5).
238. Do consuls enjoy their own immunities and

privileges? Explain. *
Yes, but not to the same extent as those enjoyed by diplomats.

Like diplomats, consuls are entitled to the inviolability of
their correspondence, archives and other documents, freedom of
movement and travel, immunity from jurisdiction for acts
performed in their official capacity, and exemption from certain
taxes and customs duties.
I HI, IU(,in OK I,h<,A | ION
91
HOW(*VH', consult nr<* liable to nnoat and punrdimont for grave

offenses and may lx* required to give testimony, subject to certain
exceptions. The consular offices art! immune only with re pe< t to t hat part
where the* consular work is being performed and they may even Ire
expropriated for purposes of national defense or public utility. {Id.,
Chapter II).
239. What is the duration of consular

immunities and privileges? *
The same rules apply as in the case of diplomatic immunities

and privileges. (See answer to Question No. 22H).
240. How may a consular mission end? *

It may end in accordance with the usual modes of terminating
official relations under municipal law, such as resignation,
expiration of the term, and abandonment. The exequatur may also
be withdrawn by the receiving state, either of the sending or
receiving states may be extinguished, or war may break out between
them.
In case of war, the consulate is closed and, together with the
sealed archives, placed in the custody of a consul from a neutral
state. The consul from the enemy state is allowed to depart for his
own country as soon as possible and without unnecessary
molestation.
Chapter XIII
TREATIES 241. Whut IH a treaty?
*
A treaty may be defined as a formal agreement, usually but not
necessarily in writing, which is entered into by states* or entities
possessing the treaty-making capacity, for the purpose of regulating
their mutual relations under the law of nations.
In its generic sense, the term treaty may embrace such compacts
as conventions, declarations, covenants, acts, concordats, pacts, etc.,
which have recognized variations in their extent or purposes. All such
agreements, when intended to create legal .as distinguished from moral
obligations, are binding on the parties.
242. How does a treaty differ from an executive agree-

ment? *
An executive agreement is not a treaty insofar as its ratification

may not be required,, under our Constitution. However, the distinction is
purely municipal and . has no international significance. From the
standpoint of international law, “treaties and executive agreements are
alike in that both constitute equally binding obligations upon the nation.”
(FB. Sayre, 39 Columbia Law Review, p. 75 [1939]).
243. What are the functions of treaties?
Treaties are supposed to perform the following important

functions:
(1) To enable the parties to settle finally actual and potential
conflicts.
(2) To make it possible for the parties to modify rules of
international customary law by means of optional principles or standards.
92
TUI*'.ATI UN 93
\\\) To paw (ho way lor I IK* l I JUINIOI mntion of unorga- nn'il internal
ional society inio OIK* which may lx* organized on kww chosen level of social
integration.
(i) To provide tho humus for fho growth of international
customary law. {Schirur^ftibcrficr, 141).
211. VVliat are tho essential requisites of a valid treaty?*
To be valid, a treaty must be:

(1) Entered into by parties having the treaty-making capacity;
(2) Through their authorized organs or representatives;
(3) Without the attendance of duress, fraud, mistake or other
vice of consent;
(4) On a lawful subject;
(5) In accordance with their respective constitutional
processes.
245. Who are supposed to possess the treaty-making capacity?

Explain.
All states have full treaty-making capacity unless limited by pre-

existing agreements or self-imposed inhibitions. Thus, the
protectorate is restricted in the control of its external affairs; a
neutralized state may not join an offensive or defensive alliance.
On the other hand, there are instances when even mere colonies
have been allowed to sign treaties and participate in international
conferences together with full-fledged states.
The United Nations and its organs, such as the Security Council
and the Economic and Social Council, and international agencies like
the World Health Organization, may also enter into treaties.
246. Who is authorized to represent the state in the conclusion of

treaties? *
It is for municipal law to determine which organ of tna state shall
be empowered to enter into treaties on its benaii In this country, it is
the President who is vested with tm* power, but “no treaty or
international agreement shall be valid and effective unless concurred in
by at least two-third of all the Members of the Senate.” (Constitution,
Art. VII. Sec. 21)
This is in consonance with the general practice of assigning the
negotiation of treaties to the executive department of the government,
subject usually to the consent of the legislature or one of its branches.
247. What is the legal effect of a treaty concluded by an organ of

the state without authority to do so? Explain.
Harvard Research declares: “A state is not bound by a treaty made

in its behalf by an organ of authority not crmpe- tent under the law to
conclude the treaty. ” ^
But this view is disputed by some writers, such as Hackworth,
Hyde and Willoughby, to name a few. McNair writes that if a party
negotiating a treaty produces an authorization which appears to be
complete and regular although constitutionally defective, “the other
party, if it is ignorant and reasonably jgnorant of the defect, is entitled
to assume that the instrument is in order and to hold the former to the
obligation of the latter. ’ *
The International Law Commission, in its draft Law of Treaties,
provides that “the fact that a provision of the internal law of the state
regarding competence to enter into treaties has not been complied with
shall not invalidate the consent expressed by its representative, unless
the violation of international law was manifest.” {Art. 31).
248. How will fraud affect the validity of a treaty?
If a state has been induced to enter into a treaty by the fraudulent

conduct of another contracting state, it may invoke the fraud as
invalidating its consent to be bound by the treaty or by the particular
clauses thereof to which the fraud relates. (ILCDraft Law of Treaties,
Art. 33).
TREATIES 95
249. What is the effect of error on the validity of a treaty?
It may invalidate the treaty if the error relates to a fact or state

of facts assumed by a contracting party to exist at the time when the
treaty was entered into and forming an essential basis of its consent to
be bound.
An error relating only to particular clauses shall invalidate the
conserrtof the state with respect to those clauses only.
When there is no mistake as to the substance of a treaty but

there is an error in the wording of the text, the error shall ^ not affect
the validity of the treaty. (Id., Art 34).
250. When will coercion invalidate a treaty? *

The traditional view is that duress will invalidate a treaty
only when it is exerted on the person.of-the representative of the
contracting state and not when it is applied to the state itself, as in
the case of a forced cession or a dictated treaty of peace. (Fenwick,
439).
In the Law of Treaties drafted by the International Law
Commission, it is provided that “any treaty the conclusion of which
was procured by the threat or use of force in violation of the
principles of the Charter of the United Nations shall be void." (Art
36).
251. Give examples of invalid treaties because of the illegality

of the subject.
An example is a treaty apportioning the open sea to the exclusive

uses of the contracting parties.
Another is a treaty dealing with traffic in white slavery or
narcotics.
A treaty for the operation of piratical activities would also be
null and void.
IN I'KKNA I IONAL LAW KLVJhWhR
252. Wliut are the IIHIXIII steps in tins irmly making prf> CONN?
They are; (1) negotiation; (2) signature; (3) ratification; and

(I) registration with the Uni tad Nation?*.
253. Discuss negotiation.
This refers to the discussion of the provisions of the proposed treaty,

undertaken by the representatives of the contracting parties who are
provided with credentials known as full powers or pleins pouvoirs. It is
customary for one of the parties to submit a draft proposal which, together
with the counter-proposals, becomes the basis of the negotiation. When
agreement is reached, the resultant instrument is ready for signature.
254. What are the uses of the signature? ^
The signature is primarily intended as a means of authenticating

the instrument and symbolizing the good faith of the contracting parties.
Significantly, it does not indicate consent where ratification of the treaty
is required, as is usual. But where ratification is dispensed with, the
signature will operate to bind the parties to the treaty.
255. What is the so-called practice of the altematl*
This is an arrangement under which each negotiator is allowed to

sign first on the copy of the treaty which he will bring home to his own
country, the purpose being to preserve the formal appearance of equality
among the contracting states and to avoid delicate questions of
precedence among the signatories.
256. What is ratification? State its purposes. *
This is the act by which a state formally accepts the provisions of a

treaty concluded by its representative. The purpose of ratification is to
enable the contracting states to examine
%
rKKATU'S
:rt\u> more closely and to give thorn an opportunity to :o be

bound by it should they find it inimical to their in*
237. Is ratification indispensable to the validity of a treaty?

Explain.
While most treaties now expressly provide that they shall re subject
to ratification, the majority view is that the requirement would still hold
true even in the absence of a provision to :ris effect in the instrument.
Hence, unless ratification is expressly dispensed with, and more so if it
is expressly required, an unratified treaty cannot be a source of
obligations between the parties.
258. Is there a legal obligation to ratify a treaty?
No, but refusal to ratify a treaty must be based on substantial

grounds; otherwise, the other party would be justified in taking offense.
At times, to void total rejection of a treaty, the ratification is
qualified or made conditional, that is, with reservations, if allowed.
259. What is the legal effect of a reservation?
In its Advisory Opinion on Reservations, rendered at the request

of the General Assembly in connection with the ratification of the
Genocide Convention, the International Court of Justice declared “that
a State which has made and maintained a reservation which has been
objected to by one or more of the parties to the Convention but not by
others, can be regarded as being a party to the Convention if the
reservation is compatible with the object and purpose of the Convention;
otherwise, the State cannot be regarded as being a party to the
Convention? ’ (I.C.J. Reports, p. 15/1951).
260. Who has the power to ratify treaties in the Philippines?

i: tm IN I I'.lirMTIOMAJ, LAW HLVlhV/Lf!,
■
power l.o ratify l.m/dio# m vested in the /'resident of Htn

f’lillippinow mid mil., ns is cjnnmnitly believed, in the Irid^l'dmn
Tin* roli» of tin* I/itturm confined airnply to giving or withholding
consent lo the nitifir/ifjon proposed to ho roodohy Hm }> osidonf. Tho
President emmet ratify a treaty without the rnfinirronco of (wo-
thirds of all the members of the Senate. (('(institution, Art.. VII, Hoc.
21).
261. When does a treaty become effecti ve?

On the date agreed upon by the parties. Jn the absence of
such an agreement, upon the exchange of the instruments of
ratification. Where ratification is dispensed with and no effects
vity date is provided for, the treaty becomes effective upon
signature.
262. Is the registration of a treaty essential to its validity?
No. But under Article 102 of the United Nations Charter, a

treaty not registered with the U.N. Secretariat, by which it shall
be published, cannot be invoked before any organ of the United
Nations.
Nevertheless, the treaty does not cease to be binding on the
parties and may be invoked before other bodies outside the United
Nations.
263. Who are bound by the provisions of a treaty? Explain.

*
Asa rule, a treaty is binding only on the contracting parties,

including not only the original signatories but also other states
which, although they may not have participated in its negotiation,
have been allowed by its terms to sign it later by a process known
as accession.
264. Are there instances when third states may be bound by

a treaty? Explain. *
TREATIES 99
(ionornlly speaking, non-parties to a treaty are not bound

thereby under t he maxim pacta tertiis nec nocent necprosunt. There
an' instances, however, when third states may be validly held to the
observance of or benefit from the provisions of a treaty.
Firstly, the treaty may be merely a formal expression of
customary international law which, as such, is enforceable on all
civilized states because of their membership in the family of nations.
Secondly, it is provided under Article 2 of the United Nations
Charter that the Organization “shall ensure that non- member States
act in accordance with the principles of the Charter so far as may be
necessary for the maintenance of in- / ternational peace and security,”
and under Article 103 that the obligations of the member-States shall
prevail in case of conflict between the Charter and other international
agreements, including those concluded by non-members.
Thirdly, the treaty itself may expressly extend its benefits to
non-signatories thereof, as in the case of the Hay- Pauncefote
Treaty of 1901, which opened the Panama Canal “to the vessels of
commerce and of war of all nations observing these Rules, on terms
of entire equality.’’
Finally, parties to apparently unrelated treaties may also be
linked by the most-favored-nation clause, under which a contracting
state entitled to most favored-nation treatment from another state
may claim the benefits extended by the latter to a third state in a
separate agreement.
265. What are the two principal rules of international law in

connection with the performance of treaties?
They are the doctrine of pacta sunt servanda and the doctrine
of rebus sic s tantibus.
266. What is meant by pacta sunt servanda?*

It simply means that treaties must be observed in good faith despite
hardship on the contracting state, such as con
100 INTKHNATIONAL LAW KKVIKWKK
flicts between the treaty and 1 LH constitution or prejudice

to thi' national interest as a result of the operation of the
treaty.
As a general rule, u party must comply with the provi-
sions of a treaty and cannot ignore or modify it without the
consent of the other signatory. Wilful disregard or violation of
treaties without just cause is frowned upon by the society of
nations.
267. What is described as the “equivalent exception to the

maxim pacta sunt servanda’7 Explain.
It is the doctrine of rebus sic stantibus, which, according to

Jessup, “would justify non-performance of a treaty obligation if the
conditions in relation to which the parties contracted have changed so
materially and so unexpectedly as to create a situation in which the
exaction of performance would be unreasonable."
Thus, to use his own illustration, if States A and B agree on the
reciprocal use of their respective port facilities and B’s only important
port is thereafter acquired by State C, State A would be released from
continuing to accord the treaty privileges to State B, which is no longer
able to fully perform its obligations under the treaty. (Jessup, 161).
268. What are the limitations on the doctrine of rebus sic

stantibus?*
(1) It applies only to treaties of indefinite duration.

(2) The vital change claimed as justification for the
discontinuance of the treaty must have been unforeseen or un-
foreseeable and must not have been caused by the party invoking
the doctrine.
(3) The doctrine must be invoked within, a reasonable
time from the occurrence of the change asserted.
•
(4) The doctrine cannot operate retroactively upon the
provisions of the treaty already executed prior to the change in
circumstance. (Salonga and Yap, 310).
TREATIES 10]
269. How may a treaty be terminated?*
A treaty may be terminated in any of the following ways:

(1) By gjcpiration of the term, which may be fixed or
sub-' ject to a resolutory condition.
(2) By j^ccomplishment of the purpose.
(3) By impossibility of performance.
(4) By loss of the subject-matter.
(5) By novation.
(6) By desistance of the parties, through mutual consent,
by desuetude, or by the exercise of the right of denunciation (or
withdrawal) when allowed.
(7) By extinction of one of the parties if the treaty is bi-
partite.
(8) By the occurrence of a vital change of circumstance
under the doctrine of rebus sic stantibus.
(9) By the gutbreak of war between the parties, except
where the treaty is intended precisely to regulate their relations
during war.
(10) By vjoidance of the treaty because of defects in its
conclusion, violation of its provisions by one of the parties, or
incompatibility with international law, the U.N. Charter, or a
subsequent agreement.
Chapter XIV
NATIONALITY AND STATELESSNESS
270. What is nationality? Distinguish from citizenship. *

Nationality is membership in a political community with all
its concomitant rights and obligations. It is the tie that binds an
individual to his state, from which he can claim protection and
whose laws he is obliged to obey.
Citizenship has a more exclusive meaning in that it applies
only to certain members of the state accorded more privileges than
the rest of the people who owe it allegiance. Its significance is
municipal and not international.
Thus, during the American regime in the Philippines,
Americans and Filipinos were both considered nationals of the
United States vis-a-vis other countries; but Filipinos were
nevertheless not entitled to American citizenship and were
considered foreigners for purposes of the administration of the
internal affairs of the United States.
The term subject, on the other hand, has particular reference
to the nationals of monarchial countries, e.g., a British subject, who
may be a citizen of Great Britain or one of its colonies.
271. Why is nationality important in international law? *
Nationality is important in international law because an

individual ordinarily can participate in international relations only
through the instrumentality of the state to which he belongs, as
when his government asserts a claim on his behalf for injuries
suffered by him in a foreign jurisdiction. This remedy would not be
available to a stateless individual, who would have no entity with
international personality to intercede for him under the law of
nations.
272. How may nationality bo acquired?*
Nationality may bo acquired by birth or by naturalizar
An individual acquires the nationality of the state where

ho is born jure soli or the nationality of his parents jure
sanguinis regardless of the place of his birth.
Naturalization, on the other hand, is a process by which
a foreigner acquires, voluntarily or by operation of law, the na-
tionality of another state. (Hackworth, 1-3).
273. What are the kinds of naturalization? How is each

kind effected? Explain.
Naturalization may be direct or derivative. < J -w1;

Direct naturalization is effected by:
(1) Individual proceedings, usually judicial, under
general naturalization laws.
(2) Special act of the legislature, often in favor of
distinguished foreigners who have rendered some notable ser-
vice to the local state.
(3) Collective change of nationality (naturalization en
masse) as a result of cession or subjugation.
(4) In some cases, by adoption of orphanTminors as na-
tionals of the state wjiere they are born.
Derivative naturalization may be conferred:
(1) On the wife of the naturalized husband.
(2) On the minor children df the naturalized parent.
(3) On the alien woman upon marriage to a national.
{Id.).
274. What is multiple nationality? How is this condition

acquired?
Multiple nationality is the possession by an individual of
more than one nationality. It is acquired as the result of the
42*.
' 14
104 J.VJLKLA'i IONAL LA > tLV.r. A/,/,
concurrent application to him of the conflicting -a//*

of two or more states claiming him as their national.
275. Give examples of multiple nationality.
(1.) A child born in the United States of Filipino parents would

be an American national under the jus soli and a Filipino national
under the jus sanguinis.
(2) A woman marrying a foreigner may retain her own
nationality under the laws of her state while also acquiring the
nationality of her husband under the laws of his state.
(3) Under the doctrine of indelible allegiance, an in- £ dividual
may be compelled to retain his original nationality 1 notwithstanding
v,
Ci. that he has already renounced it under the laws of another state
whose nationality he has acquired. tFen- wick, 258).
(4) A state may allow any of its nationals to remain as
such even if he may have acquired another nationality, as where he is
pni i
conferred an honorary citizenship by a foreign ; government. |
276. If there is any question as to the nationality of an

individual, what law shall be applied in the first instance? *
Any question as to whether a person possesses the nationality

of a particular state shall be determined in accordance with the law
of that state.
In other words, it is for each state to determine under its laws
who are its nationals. These laws shall be recognized by other states
so long as they are consistent with international conventions,
international customs and the principles of law generally recognized
with regard to nationality. {Hague Convention of1930 on Conflict of
Nationality Laws).
NATIONALITY AND STATELESSNESS 105
ciple of effective nationality, the third state shall recognize conclusively

in its territory either the nationality of the country in which he is
habitually and principally present or the nationality of the country with
which he appears to be in fact most closely connected. (Id.).
278. T was born of Austrian parents in the United States and

was resident in Austria. When required to render military service in
this latter country, he objected, invoking his American citizenship.
Could the requirement be enforced against him? Reasons.
“Citizenship is determined by rules prescribed by municipal law.

Under the law of Austria, to which claimant had voluntarily subjected
himself, he was an Austrian citizen. The Austrian and the Austro-
Hungarian authorities were well within their rights in dealing with him
as such. Possessing as he did dual nationality, he voluntarily took the
risk incident to residing in Austrian territory and subjecting himself to
the duties and obligations of an Austrian citizen arising under the
municipal laws of Austria." (United States [Alexander Tellech] v.
Austria and Hungary, Tripartite Claims Commission, 1928; Decisions
and Opinions, 71).
279. Nottebohm, a German by birth, had been a resident of

Guatemala for 34 years when he was naturalized in Liechtenstein one
month before the outbreak of World War II. Many of his relatives and
business connections were in Germany. In 1943, Guatemala, which had
declared war on Germany, confiscated his property on the ground that
he was an enemy national, i.e., German. Liechtenstein protested, invok-
ing Nottebohm’s naturalization. Decide. *
“Nottebohm’s actual connections with Liechtenstein were

extremely tenuous. No settled abode, no prolonged residence in that
country at the time of his application for naturalization ... No intention
of settling there was shown at that time or realized in the ensuing
weeks, months or years—on the contrary, he returned to Guatemala
very shortly
nftm hiM mit unili/.jit ion mid allowed every intention of
remaining there.
' ‘ Nnlurnli/.nt ion was naked not HO much for the purpose
of obtaining a legal recognition of Nottebohm's membership in
fact in t he population of Liechtenstein as it was to enable him
to substitute for his stutus as a national of a belligerent state t
hat of a nat ional of a neutral state, with the sole aim of thus
coming within the protection of Liechtenstein without becom-
ing wedded to its traditions, its interests, its way of life, or
assuming the obligations—other than fiscal obligations—and
exercising the rights pertaining to the status acquired.
“Guatemala is under no obligation to recognize a nationality
granted in such circumstances. Liechtenstein consequently is not
entitled to extend its protection to Nottebohm vis-a-vis Guatemala and
its claim must, for this reason, be held inadmissible." (I.C.J. Reports,
1955, p. 4, Judgment, April 6, 1953).
280. A claim for the payment of certain checks was filed against
Peru by Italy on behalf of three brothers who were its nationals. Peru
asserted that one of the claimants was also its national and the action
with respect to him was resisted on that ground. How would you
decide? 1
“According to Peruvian legislation, Rafael Canevaro is a

Peruvian by birth because born on Peruvian territory.
“On the other hand, according to Italian legislation, he is of
Italian nationality because born of an Italian father.
“As a matter of fact, Rafael Canevaro has on several occasions
acted as a Peruvian citizen, both by running as a candidate for the
Senate, where none are admitted except Peruvian citizens and where
he succeeded in defending his election, and, particularly by accepting
the office of Consul-General for the Netherlands, after having secured
the authorization of both the Peruvian government and the Peruvian
Congress.
“Under these circumstances, whatever Rafael Canevaro’s status
as a national may be in Italy, the Government of Peru has a right to
consider him a Peruvian citizen and to deny his
NATIONALITY ANI) N TATDJJvMHNKHH 107
status UH an Italian claimant." {The (Janeoaro (Jane, Rerrruir ncnt ('our/

of Arbitration, IU12 Scott Haptic Court, Report*, p. 2H4).
281. What in statelessness? How is it acquired? Explain.*
Statelessness is the condition or status of an individual who is born

without any nationality or who loses his nationality without retaining or
acquiring another.
An example of the first case would be that of a person born in a state
where only the jus sanguinis is recognized to parents whose state observes
only the jus soli. The second case may be illustrated by an individual who,
after renouncing his original nationality in order to be naturalized in
another state, is subsequently denaturalized and thereafter denied
repatriation by his former country.
282. What is the consequence of statelessness? Explain.
From the traditional viewpoint^he stateless individual is powerless

to assert any right that otherwise would be available to him under
international law were he a national of a particular state. Any wrong
suffered by him through the act or omission of a state would be damnum
absque injuria for in theory no state has been offended and no international
delict committed.
283. Does this mean that the stateless individual is entirely without
recourse under the law of nations?
No. Under the Covenant Relating to the Status of Stateless Persons,

adopted in 1954, the stateless person is entitled to, among others, ifehe
right to religion and religious instruction, Access to courts,Elementary
education, public relief and assistance^rationing of products in short
supply, and treatment no less favorable than that accorded aliens in
general. Moreover, the terms of the Universal Declaration of Human Rights
are sufficiently broad to encompass the stateless person with its protection
and sympathy as a member of the human family.
INTKKN ATION AL LAW UUVIUWKK
284. Nevertheless, what steps have been taken to avoid the

condition of statelessness?
The Hague Convention of 1930 adopted certain rules to

avoid the condition of statelessness and all its attendant in-
conveniences. Briefly stated, these rules are as follows:
(1) Loss of nationality by an individual is conditioned
upon his retention or acquisition of another nationality,
whether such loss be by expatriation, naturalization as to the
wife and children, or adoption.
(2) In case of naturalization, the wife and the minor
children retain their existing nationality if they are not also
naturalized. Moreover, the wife will acquire her husband's na-
tionality, if permitted, only with her consent.
(3) The adopted child's nationality is also not lost if he
does not acquire the adopter's nationality.
(4) In other cases, children shall have the nationality of
the state of their birth whenever their parents are: a) unknown;
b) stateless or of unknown nationality; or c) a father who is
stateless or of unknown nationality and a mother who is a na-
tional of the state where they are born.
< 'linptui x v
TIlIilA.TMlilNT OK AMICNfi
\\ luii ih (lie doctrine of Midi** rwijioimibiJity?
U ui the doctrine which lioldn n M U I I C roapomjibk; for

<?/i/ \U)Ui v juiMtoinod by nn alien within itM jurwliction
becsnmof an internal ional wrong imputable to it,
1!S(K Does this moilti Unit the state is responsible for every
injury suffered Ivy 1111 alien? Why?
No, because the state is not an insurer of the life or projver- tv

of the alien. The rule is that if he suffers injury at the hands of a
private person, his recourse will be against that person and not
against the state. The state will be responsible only if it is shown that
it participated iri the act or omission complained of or was remiss in
redressing the resultant wrong. .
Thus, the’state will be liable if, having knowledge of an
impending riot against foreigners, it makes no effort to prevent it; and
more so if it actually instigates or encourages it. It will also be liable
if an offense has been committed against the alien and it does not take
adequate steps to apprehend and punish the malefactors.
287. Would it follow that the alien is entitled to preferential

treatment in the local state?
No, because the alien must accept the institutions of the state
as he finds them. As a matter of fact, he may even be denied certain
rights available to nationals, such as the right to vote and the right to
operate particular businesses.
However, the alien may complain if the laws of the state do not
conform to the international standard of justice. In such a case, he
may claim better treatment than that accorded the nationals of the
state.
109
1 U) INT KHNAT IONAL L AW MOVIKWICR
288. What is the international standard of

justice? Explain. *
It is defined as the^standard of the reasonable state and
calls for compliance with the ordinary norms of official conduct
observed in civilized jurisdictions. It may refer to the intrinsic
validity of the laws passed by the state or to, the manner in which
such laws are administered and enforced.
For example, a law imposing the death penalty for petty
theft would fall short of the international standard. So too would
one calling for the arbitrary punishment of accused persons
without compliance with the usual requisites of due process.
289. Distinguish between direct and indirect

state responsibility. *
,
ft
.
Direct responsibility attaches to the state if the wrongful
act orbmission was effected through any of itsûperior organs
acting on its behalf. Thus, a political decision of its chief executive
or its national legislature would be an act of state and, as no
recourse would be available against it, would give rise to
immediate state responsibility if an alien is injured thereby.
By cqntr&st, there are wrongs committed by inferior
government officials or even by private individuals which cannot
be immediately regarded as acts of the state itself. The
responsibility of the state in such cases would only be vicarious
or ^direct and can be excused by proof that it was not negligent
in preventing the injury or in vindicating the rights of the alien.
(Schwarzenberger, 16&167).
290. What conditions are required for the
enforcement of the doctrine of state responsibility? *
The conditions are as follows:
(1) The injured alien must first exhaust all local remedies.
(Id, 16).
(2) He must be represented in the international claim for
damages by his own state. (Id, 165; Brierly, 283).
29L Why is the first condition important?
Principally, because the state must be given an opportunity to

do justice in its own regular way without unwar- suited interference
with its sovereignty by other states* Moreover, the alien is
presumed and required to take into account the local remedies for
determination and redress of wrongs and ascertainment of state
responsibility, if any. As lias been aptly observed, “it is a sound
principle that where there is a judicial remedy, it must be sought;
and only if it is sought in vain does diplomatic interposition become
proper.”
(Harvard Research Draft Convention on Responsibility of States, 23
Sp. Supp. 133).
292. When may the first condition be dispensed with?
It may be dispensed with if there are no remedies to exhaust,

either because of intrinsic defect in the laws of the local state or
laxity or arbitrariness in their enforcement, as when the courts are
notoriously corrupt or when there is no adequate machinery for the
administration of justice. There would also be no local remedy
against the so-called acts of state, which are not subject to judicial
review.
In such instances, the injured alien may immediately seek the
assistance of his own state. J
293.
What is the Calvo clause? * :. /
It is a stipulation by virtue of which an alien waives or

restricts his right to appeal to his own state in connection with any
claim arising from a contract with a foreign state and limits himself
to the remedies available under the laws of that state.
A typical Calvo clause follows:
“The contractor and all persons who, as employees or in &ny

other capacity, may be engaged in the execution of the work under
this contract either directly or indirectly, shall be considered as
Mexicans in all matters, within the Republic of
Mexico, concerning the execution of such work and the fulfillment of

this contract. They shall not claim, nor shall they have, with regard to
the interests and the business connected with this contract, any other
right or means to enforce the same than those granted by the laws of
the Republic to Mexicans, nor shall they enjoy any other rights than
those established in favor of Mexicans. They are consequently deprived
of any rights as aliens, and under no conditions shall the intervention
of foreign diplomatic agents be permitted, in any matter related to this
contract.'’
294. Is the Calvo clause lawful?*

!
Insofar as it requires the alien to exhaust the remedies available

in the local state, it may be enforced as a lawful stipulation. However,
it may not be interpreted to deprive the alien’s state of the right to
protect or vindicate his interests in case they are injured by the local
state.
Thus, as held in the case of United States (North American
Dredging Co.) v. Mexico:
“Under the rules of international law, may an alien lawfully
make such a promise (as is embodied in the Calvo clause)? The
Commission holds that he may, but at the same time holds that he
cannot deprive the government of his nation of its undoubted right of
applying international remedies to violations of international law
committed to his damage. Such government frequently has a larger
interest in maintaining the principles of international law than in
recovering damage for one of its citizens in a particular case, and
manifestly such citizen cannot by contract tie in this respect the hands
of his government.” (Opinions 21, cited in A had Santos).
295. Strictly speaking, who has a right to complain in case of

injury suffered by an alien? *
From the viewpoint of international law, it is the state of the

alien and not the alien himself. What has been violated, in legal
theory, is not the right of the alien but the right of his
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( 111 IM<II< lion of iiiidl lii i rit.nl.iv
Thn >iIH II woulil, UHTIÎM:, b<* rv.j/nnicO ronrîy ^ ^ r. />v
I'**1 °1 M »l«*i tin tioi in I hi w IHHI run i t* 1 , n* A, *\i r « j c t f y , r > t i v Vr>
r*>>gr,
I l»r iii*il i u 11 »<*iil ii Ii t.y ot Inn own fifab; in
enforcing an I lotiiil claim f or damn gen,
29(i. What, then, in the importunn: of the second condi tion?

As has boon pointed out, the doctrine oi state responsibility is based on
an injury to a state through injury to one of its nationals, so that if the injured
person is not a national of tine complaining state, then no injury, legally
speaking, has Y>een inflicted upon it. Hence, it would not be a proper party to
institute a claim on behalf of the injured person.
297. How long must the tie of nationality subsist? *

It must subsist from the time of the injury to the time of the award.
If, for example, the injured person dies in the meantime and his heirs are
not nationals of the claimant state, the claim will lapse. (Schwarzenberger,
166).
298. Are there exceptions to the second condition?
Yes.
When Count Folke Bernadotte was assassinated in 1950
while serving as U.N. mediator in Palestine, the United Nations
was allowed to recover damages from Israel. {I.C.J. Reports, 1949,
p. 174).
Likewise, under the European Convention on Human Rights,
the European Commission of Human Eights and also contracting
states other than the home state of the injured national may bring
alleged infractions of the convention before the European Court of
Human Rights. (Schwarzenberger, 1631
299. How may an international claim for damages be e

forced?
114 INTERNATIONAL LANS KEVIK YVtilt
Usually, by negotiation. If this fails, other methods may be

employed, like good offices, mediation, arbitration, judicial settlement,
etc. Retorsions and reprisals have also been employed in difficult cases.
In fact, redress of the rights of an injured national has been invoked as
justification for intervention by some states.
300. Assuming that the responsibility of the state is established

or acknowledged, how is reparation effected?*
“In international law, the duty to make reparations means the

obligation to re-establish, so far as possible, the state of affairs as it
would probably have existed had the international tort not been
committed. The particular function of this rule is to assist in the
restoration of the legal equilibrium which has been disturbed by the
commission of the international tort.
“Thus, in the first place, reparation takes the form of restitution
in kind. If this is not possible, two subsidiary forms are available:
satisfaction and compensation. Satisfaction is any non-monetary form
of reparation which falls short of restitution in kind. A formal apology
or condemnation of an act by an international tribunal illustrates this
type of reparation. For the rest, there is only monetary compensation
as a substitute for the impossible restoration of the status quo ante.”
(Schwarzenberger; 169).
In case of compensation, the measure of the damages is the injury
sustained by the alien.
301. To avoid responsibility for injuries to aliens, may a state

bar them altogether from its territory?
Yes; such an act would be within the competence of the state as

territorial sovereign. However, an exclusionist policy would invite
retaliation in kind and prevent the nationals of the state from entering
the territories of other states, thus isolating it from the rest of the world.
TREATMENT OF ALIENS 115
302. What is the usual policy of states in regard to the .fission of

aliens?
Instead of banning them altogether or allowing their in- f

entry. most states regulate the immigration and
r: :: aliens and provide for their deportation if they are
303. If a wanted individual in one state should succeed •n

escaping to the territory of another state, is the latter under ?nv
legal obligation to surrender him to the former?*
Legally speaking, no. The state of refuge has every right ;o

allow him to remain in its territory in the absence of a treaty of
extradition with the state of origin.
^804. What is extradition? How does it differ from

deportation?
Extradition is the surrender of a fugitive by one state to

another where he is wanted for prosecution or, if already con-
victed, for punishment. The surrender is made at the request of
the latter state on the basis of an extradition treaty.
Deportation is the expulsion of an alien who is considered
undesirable by the local state, usually but not necessarily to
his own state. The deportation is the unilateral act of the local
state and is made in its own interests.
305. Who are subject to extradition?
In general, persons who have committed in the territory of

the requesting state any offense covered by the extradition
treaty are subject to extradition.
If the fugitive is a national of the requesting state, the Case
does not present much difficulty. But if he is a national of the
state of refuge, it may refuse to surrender him and instead
undertake to prosecute and punish him. Some treaties, in fact,
expressly exclude the nationals of the state of refuge from the t
mition of the persons subject to extradition.
A vt tt fi r&U/rfMi *A fc %h'fC tjfti.
%4Mfr
of r&iuk <;*:î]y for UJs yuu.miitt- of ^ ibta&t effecting ♦’.hie *
.rrenA/^r to tnfc rep ;4&Uvf£ ttsJA
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ty
for e cringe <-peofi.e/: ;r. tr>. nzUfsr.AjfX; U*&V/ UA\ >O
rriiext for e^tr e/dtinn
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f O x r ^ r ^ merely prov-Oe for ^/U^CAAO^ HtJtfH
tb4 fi/atte i% purderjsbx; ;.n both eteoee v/Ar, e //,,/,,///.,/o yfy/sM/f,
?Afl A porv/n «5 ‘tifititfA. ffj HtMA A for * A4

amrder. bot the i>;t of txuz/iftehie (Af**#**, /,oi £r*4to4$
robbery. Upon hlx G'xrztMT&t oy Soane B to Bo&te A, //.■*•/ £M Latter
projects te Hrn for both ofIAMAAC* fVxpj^f/.
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XSLS first b%jn gp/en a reaxorjabae o^p/xr/vn xy V, retorr, 56- State B.
^8%. V/Bst crirrxx are gerxare.y *x„t oo/eyex by exfx^v tion?*

PoEtinalex: rehgpTtx cffexxex ere ##ue/e~y e*/x.x>/b
Heaver. ntoer roe ';.tten*sa OSVJAA, tBe of a
Bx.f of rtate or any rrxxooer of ox fexfjy A ooo reôteh e& # poetical
offers fosr pxpoe? of e^treoxdon fo Sh6
crBne of gerrxdf*? ;xo<er the ^jeoodoe Oooyeodoo of ^
Tfrrieg: the yrzfirjA of orlroixerAyv * OAro<e rx^
porfeBec ix botx tBe reooeodxg eryf rô,ÔbC 0^^ ^ ozr re.oBx bie
V. rxx ye*xxxioe? *
I: h foflrior s? exr of txe foôvdxg ooo.o:v^ô V&fr- ixt^xr to

feoxro% lo wBok; fx parr, e rîoo^ or roBîoae groop ox ^;ox
_
. H> 1
THIiATMKNT OK AMKIJti
l 17
(1) Killing members ol the gr oup
(2) Causing serious bodily or incntoJ harm to of the

group.
(3) Deliberately inflicting on the group < oud 11,1 on** of lifu
calculated to bring about its physical dust* u< l ion in v/hoJu oi in part.
(4) Imposing measures intended to pi event bnU^ within the group.
(5) Forcibly transferring children of the group to another group.
310. M, an admitted anarchist, bombed o Paries

restaurant and a military barracks, then fled to Flighted Upon
being arrested for surrender to France under an extradition
treaty, he applied for habeas corpus, contending In tut ahla that the
offense charged was political in charac ter Mow would y < „ ,
decide? *
“In order to constitute an offense of a political ehnrnrtei, there must be

two or more parties in the Htate, each Booking to impose the government of
their own choice on the other, I f the offense is committed by one side or the
other In pursuance of that object, it is a political offense, otherwise not, In the
ptih sent case, the party with whom the accused is identified by the evidence,
and by his own voluntary a ha toi rum t, namely, the party of anarchy, is the
enemy of all Governments The!; of forts are directed primarily against the
general body <4 citizens. They may, secondarily and incidentally, commit of.
fenses against some particular Government; but anarchist of tenses are mainly
director] against private citizens/' (//, n, Meunier, 2 Q. B. 416/18941).
311. As a general principle, where must the of fens*} haVe been

committed In order to be extraditable?
In the absence of special agreement, the offense must have been

committed within the jurisdiction or ten itor y of tho demanding state.
312. Briefly explain the procedure of extradition. *
A request for extradition is first presented through diplomatic

channels to the state of refuge. This request will be accompanied by
the necessary papers relative to the identity of the person sought and
the crime he is alleged to have committed or of which he has already
been convicted. Upon receipt of this request, the state of refuge will
conduct a judicial investigation to ascertain if the crime is covered by
the extradition treaty and if there is a prima facie case against the
fugitive according to its own laws. If there is, a warrant of surrender
will be drawn and the fugitive will be delivered to the demanding
state.
313. If there is no extradition treaty between the state of

refuge and the state seeking the fugitive’s return, how may the latter
acquire jurisdiction over him? Explain. *
The state may still secure his surrender, but not as a matter of
right. In the interest of international comity or courtesy, the state of
refuge may accede to the former’s request and surrender the fugitive
to it.
There have been instances when nationals of the state
seeking the fugitive have abducted him in the state of refuge, as in
the case of Adolf Eichmann, who was kidnaped in Argentina by
Israeli agents and taken to Israel, where he was subsequently
executed for the murder of six million Jews in World War II. But
such acts are not allowed under international law as they constitute
a Violation of. the territorial integrity of the state of refuge.
It would be different, however, if the abduction or arrest of the
wanted individual is effected by or with the help of the nationals of
the state of refuge itself. Thus, in the famous Savarkar Case, a
prisoner on board a British vessel escaped in a French port but was
apprehended by the local police and delivered back to the British
authorities. When France later demanded the prisoner’s return, it
was held that Great Britain was under no obligation to comply.
(Hague Court Reports, 275).
Chapter XVI
SETTLEMENT OF INTERNATIONAL DISPUTES
,'IM. Whnt is an international dispute?*
MA dispute exists when one state claims that another stale should
behave in a certain manner and that claim is rejected by the latter."

{Ktdsen, 367),
An international dispute, in other words, is an actual disagreement
between states regarding the conduct to be taken by one of them for the
protection or vindication of the interests of the other.
^115. How would you classify disputes? Give an

example of each kind.
A dispute is legal if it involves justiciable rights based on law or

fact. An example is a conflict on the interpretation of a treaty or on the
ascertainment of the boundary lines of adjacent states.
11 is political if it cannot he decided by an international arbitral
or judicial tribunal under the rules of international law. Such would
be the case If one state, in the exercise of its sovereign rights, enacts
Immigration laws discriminating against the nationals of another state,
over the latter's protest.
3Iff. What is a situation? How does it differ from a dispute?
Where the disagreement has not yet fipened into an actual

conflict or -//here the issues have not yet been sufficiently formulated
and define*}, we have v/hatis known as a situation.
A situation, therefore, is the initial stage of a dispute.
If/7 fs there an adequate machinery for the settlement of interna

t/onal d/spu tes? |h-
'I here is as yet no adequate machinery for the settlement of

inU'/national disputes With as is available under municipal
law for the enforcement and compulsory adjudication of its rules.
While the United Nations is at present trying to fill this void,
its powers are markedly limited, especially where the dispute does
not^ffect international peace and security.
In consequence, states have at times found it necessary to
settle their disputes by themselves alone without regard to higher
authority. ;
But there are also times when the intervention of third states
is voluntarily sought or, as will appear later in the case of the
United Nations, forcibly imposed motuproprio.
318. How are disputes supposed to be settled?
Disputes are supposed to be settled, conformably to one of the

basic principles of the United Nations, “by peaceful means in such
manner that international peace and security, and justice, are not
endangered.” U. N. Charter, Art. 2, par. 3).
319. What are the amicable methods of settling disputes? *
They are negotiation, inquiry, good offices, mediation,

conciliation, arbitration, judicial settlement, and resort to
regional and international organizations. (Id., Art. 33).
These methods may be availed of independently of the
United Nations, or upon its recommendation or direction, or with
its active participation.
320. What is negotiation? *
Negotiation is generally the first step taken in the settle-

ment of international disputes. It is nothing more than the
discussion by the parties themselves of their respective claims
and counterclaims with a view to their just and orderly adjust-
ment.
Where the talks prosper and agreement is reached, it is
usually formalized in a treaty; more directly, it may be effected
SfOTl fct'MKNT OF 1NTK It N AT ION A L DISIMJTKS 121
• ;vugh the rectification of the rights of the injured state, as

,v payment of damages. - ---
ail. What happens if the negotiations fail or

.all apse"?
;n case the negotiations do not succeed in solving the

,'v e. the intervention of third parties may be offered or re-
. Mod. Such assistance may come from a state or several of
a, from an international organization, or from a prestigious
...iHsman of international stature like a head of state.
322. What is inquiry? *
It is an investigation of the points in question, on the

theory that their elucidation will contribute to the solution of
the problem. As most disputes are caused by a
misunderstanding of certain factual situations, their clarifica-
tion by an impartial and conscientious body can limit if not en-
tirely remove the areas of disagreement. The findings of the
party making the inquiry are not conclusive upon the
disputing states but they nevertheless do exert a strong moral
influence in the solution of the conflict. (Hague Convention 1,
1907, Art. 9).
323. What are good offices? *
Good offices are a method by which a third party at-

tempts to bring the disputing states together in order that
they may be able to discuss the issues in contention. This is
usually employed when the protagonists are no longer “on
speaking terms,” that is, when they have severed diplomatic
relations or have actually commenced hostilities. (Id, Arts. 2,
3).
324. What is mediation, and how does it differ from good

offices? *
Mediation differs from good offices in that the mediator does not
merely provide the opportunity for the states to
negotiate but also actively participates in the discussions in order

to reconcile their conflicting claims and appease their feelings of
resentment. The suggestions of the mediator are merely
persuasive, however, and may be rejected without offense by the
parties to the dipute. (Id, Arts. 4, 6).
325. What is conciliation, and how does it differ from

mediation?*
Conciliation also involves the active participation of a third

party in the attempt of the disputants to settle their conflict, and
the recommendations offered by it are likewise not binding. But
unlike in mediation, the services of the conciliator are not
volunteered by the third party but solicited by the parties in
dispute.
326. What is arbitration, and how does it differ from

conciliation? *
Arbitration is a process by which the solution of a dispute is

entrusted to an impartial tribunal, usually created by the parties
themselves under a charter known as the compromis, which also
provides for the composition of the body and its rules of
proceedings, delineates the issues to be decided, and sometimes
specifies beforehand the law to be applied in the decision. Unlike
in conciliation, the proceedings are essentially judicial and the
award is, by previous agreement, binding on the parties. (Id, Arts.
37, 45, 52)%
327. Compare arbitration with judicial settlement. *

They are similar in that the methods applied are judicial in
nature and the decisions rendered are binding on the parties to
the dispute. Moreover, the disputes submitted are legal and not
political.
The essential differences are as follows:
(1) The judicial tribunal is generally a pre-existing and
permanent body whereas the arbitral tribunal is an ad hoc body
created and filled by the parties themselves.
SETTLEMENT OF INTERNATIONAL DISPUTES 123
(2) Usually, jurisdiction in judicial settlement is com-

pulsory whereas submission to arbitration is voluntary.
(3) The law applied by the tribunal in judicial settlement
is independent of the will of the parties but may be limited by
them in arbitration proceedings.
328. What is the International Court of Justice? *

It is the judicial organ of the United Nations and
superseded the Permanent Court of International Justice under
the League of Nations. The World Court, as it is popularly
known, is governed by a Statute annexed to the Charter of the
United Nations.
329. Who may be parties in cases before the Court? *

Only states may be parties in cases before the Court. (Statute,
Art. 34).
Such states include:
(1) All states which are parties to the Statute of the
Court; and
(2) Other states, on conditions to be laid down by the
Security Council, provided they are not placed in a position of
inequality before the Court. (Id., Art. 35).
330. What is the basis of the jurisdiction of the Court in

contentious cases? *
Its jurisdiction is based on the consent of the parties. (Id.,

Art. 36).
331. What is the so-called “optional jurisdiction clause? * ^
This is found in Article 36 of the Statute, which provides
that—
“2. The States parties to the present Statute may at any
time declare that they recognize as compulsory ipso facto and
without special agreement, in relation to any other state
accepting the same obligation, the jurisdiction of the Court in, all legal
disputes concerning:
a. the interpretation of a treaty;
b. any question of international law;
c. the existence of any fact which, if established, would
constitute a breach of an international obligation;
d. the nature or extent of the reparation to be made for the
breach of an international obligation.
332. Over what matters may the Court exercise jurisdic-

tion? *
The jurisdiction of the »urt comprises all cases which

the parties refer to it and all matters especially provided for in
the Charter of the United Nations or in treaties and conven-
tions in force. (7c£)
333. How are the decisions of the Court enforced? *
If any party to a case fails to;perform the obligations in-

cumbent upon it under a judgment rendered by the Court, the
other party may have recourse to the Security Council, which
may, if it deems necessary, make recommendations or decide
upon measures to give effect to the judgment. (U. N. Charter,
Art. 94).
This does not exclude the employment of other means of
enforcing international obligations, such as appeal to world
opinion, which are also available for the enforcement of the
awards of arbitral tribunals.
334. What are the so-called regional arrangements as a

means of settling international disputes?
These are organizations or agencies for dealing with such

matters relating to the maintenance of international peace and
security as are appropriate for regional action. According to
Article 52 of the United Nations Charter, such agencies shall
“make every effort at the pacific settlement of local disputes,”
meaning those involving states comprised in a particular
SETTLEMENT OF INTERNATIONAL DISPUTES 125
x%\m or
area. Examples are the ASEAN and the Organization
nf American States.
$35. What other bodies are involved in the amicable set-

tlement of international disputes?
Principally, the Security Council and the General

Aesembly. (Their respective powers in this regard are dis - cussedunder
Questions Nos. 404 to 411.)
‘V36. What generally follows the failure to settle a dilute by amicable

methods?
AH a matter of common practice, the states sever their diplomatic

relations, usually as a step to more hostile remedies Umy may feel justified
in taking under the circumstances. Un- iortunately, measures of self-help are
not infrequently resorted to in the community of nations.
. How would you classify the hostile or non-amicable methods of

settling disputes? *
Such measures may either be a retorsion or a reprisal.

TiH. Define retorsion.*
Retorsion consists in “retaliation where the acts com plained of do not
constitute a legal ground of offense but are rather in the nature of
unfriendly acts done primarily in pursuance of legitimate state interests
but indirectly hurtful to other states/’ {Fenwick, 532). The acts of
retaliation are also unfriendly but not illegal.
•V.tt). Illustrate retorsion.
State A, because its nationals have been discriminated {,r.uinst in

the territory of State B, enacts prohibitive tariffs on * r,oods coming
from the latter state.
1 he retaliation may also be in kind, as when one state i the
entry <>t the nationals of another state, prompting the
latter to take similar action against the nationals of the former.
400. What are reprisals? *
Reprisals are unlawful acts taken by one state in retaliation for

the also unlawful acts of another state, the purpose being to bring the
offending state to terms. (Fenwick, 532-533),
These acts are essentially forcible and are taken only by strong
states with sufficient power to back up their demands.
401. State the more common acts of reprisal and give a

historical example of each. *
Among the more common acts of reprisal are the following:

(1) Display of force, as when President Theodore Roosevelt
ordered the U. S. Mediterranean Fleet to proceed to the coasts of
Turkey in 1903 pending compliance by that country with his demand
for the return of a kidnaped American national.
(2) Occupation of territory, as when Italy bombarded and
seized the Greek island of Corfu in 1923 for the murder of certain
Italian officers.
(3) Embargo, or the detention by the state seeking redress of
the vessels of the offending state or its nationals, whether such
vessels are found in the territory of the former or on the high seas, as
illustrated by the action taken by the Netherlands against Venezuela
in 1908.
(4) Suspension of treaties, as when Great Britain rejected its
stipulations for freedom of navigation with the Netherlands in 1870
because of the latter's failure to comply with its obligations under
another treaty.
(5) Pacific blockade, by which the vessels of the offending state
are prevented from entering or leaving its ports by the ships of the
state seeking redress, as when the Great Powers took this action
against Greece in 1886 to dissuade it from going to war against
Turkey.
SETTLEMENT OF INTERNATIONAL DISPUTES m
402. Are retorsions and reprisals allowed under present -

lernational law?
No, because they contravene the principles of the United

Narions for the solution of international disputes by peaceful
;:.eans and the abstention by the states from the use of threat r
force. Moreover, reprisals are by their very nature unlawful i:;s,
and retorsions violate one of the purposes of the United Na:ions,
which is the promotion of friendly relations among rations.
403. Nevertheless, what could be a practical justification of

retorsions and reprisals?
Their practical justification lies in that they may avoid the

necessity of creating a more serious state of hostilities which might
not be justified by the offense in question. In other words, they are a
mild alternative compared to war.
404. Over what disputes does the Security Council have

jurisdiction to intervene?*
The Security Council may intervene in the settlement of:
flj All disputes affecting international peace and security. HJ.N.

Charter, Arts. 24, 34).
12) All disputes which, although covered by the ''domestic
jurisdiction clause,” have been submitted by the parties to it for
settlement. (Id., Art. 2).
405. Who may bring disputes affecting international peace

and security to the jurisdiction of the Security Council? * gjj
Such disputes may be brought to the Security Council by:

U) The Security Council itself, on its own motion (Id.,
Art. 39).
*3) The General Assembly. (Id., Arts. 10, 11).
(3) The Secretary-General. (Id., Art. 99).
(4) Any Member of the United Nations. (Id., Art. 35).

(5) Any party to a dispute, provided that in the case of non-

Members of the United Nations, they should accept in advance, for
the purposes of the dispute, the obligations of pacific settlement
prescribed in the Charter. (Id, Arts. 35, 37\.
406. What measures may the Security Council take in the

settlement of the disputes brought before it? Explain. *
First, it will call on the parties to settle the dispute by any

peaceful means of their own choice, such as negotiation, media- jg tion,
conciliation, etc. (Id, Art. 33).
Second, should they be unable to adjust their differences by such
means, it may recommend appropriate measures or methods of
adjustment, taking into consideration: a) any amicable measure
already adopted by the parties; and b) that * legal disputes should as a
rule be referred to the International Court of Justice. (Id., Art. 36). ;
Third, it may recommend such actual terms of settlement d as it
may consider appropriate. (Id, Art. 37).
407. What may the Security Council do if its recommen- !

dationa are not accepted?
It may consider such rejection as a threat to or an actual

breach of international peace and may take the necessary
preventive or enforcement action.
408. What is the preventive or enforcement action that it may

take?
(1) In the first instance, it may adopt such measures not

involving the use of armed force, such as complete or partial in-
terruption of economic relations and of rail, sea, air, postal,
telegraphic, radio and other means of communication, and the
severance of diplomatic relations. (Id., Art. 41).
(2) Should it consider that such measures would be or have
proved to be inadequate, it may then take such action by air, sea
or land forces as may be necessary to maintain or restore
international peace and security. Such action may in-
= ATIGNAL DiiPUTES 129
arxL ::ber opera cions by air,

>=.•5 :: :r~ Urn :ai Nations. Id, Art
•. *: s bn* obligation of the Members of the

if. ' * <\ *. r.s *1 .ver; tht SecoritT Council undertakes preên- •
ort*rr.%r.~ a'fvk$a?♦
■; >'a vUg~c :o rr.aê available to the Security

Court-
v. ar.b m aooorbaaoe vr.cb a special agreement
or "a:O'; ar;:^ rvrcea. a— ~car.ce and facilities,
including :/ v. v: paanga aâaary fc^r the
maintenance of interna- a :â a no cec. city, id A rt.
4?v.
r.h\ U the role of the General Assembly in the < r car a:

<jc of Uit^rna tioTi&] peace and security? *
'' ta; A r'clc-.e 11 of the United Xations Cnarter, tne ve'^'a.

Acvj;:,;>(y may discuss any question relating to the ;;C of
ir.vermalio-nal peace and security duly brought
V: v<- except that it may not make any recommendation '; 'C ri- y, a
dispute or situation under consideration by
•'e v^,r.ty Co ,.'.oil, uniess so requested. Subject to this ex- tne General
A esernbly may recommend measures for y P*eef ,j v.U]fe/r.fe,t 0f any
situation, regardless of origin,
1 "■ -. tee.'.';'-, i;xe,y to impair tne general welfare or friendly '
'’•ông nations.
^‘merei Assembly may also take appropriate <*'>l tne
maintenance of international peace and th<}“[;njtjng for
peace” Resolution.
*• ;s the“b’niting for Peace” Resolution?*

1,5
‘ 'v/i/f ' H resolution adopted by the General Assembly on ”■ 1%0,
which provides infer aiia that “if the , Vmncil, because of lack of
unanimity of the perma- u"- , S a i l s to exercise its primary
responsibility for '••••.< y^mar,,* f)f international peace and security m
any there appears to be a threat to the peace, breach of
130 INTKKNATIONAL LAW KKVibWLK
the peace, or act of aggression, the General Assembly shall

consider the matter immediately with a view to making ap-
propriate recommendations to Members for collective
measures, including in the case of breach of the peace or act of
aggression, the use of armed force;when necessary, to maintain
or restore international peace an<^ security. If not in session
at the time, the General Assembly may meet in emergency
special session within twenty-four hours of the request
therefor. Such emergency special session shall be called if re-
quested by the Security Council on the vote of any nine
members, or by a majority of the Members of the United Na-
tions.” I
The resolution also established a Peace Observation Com-
mission of fourteen members to “observe and report on the
situation in any area where there exists international tension,
the continuance of which is likely to endanger the maintenance
of international peace and security.”
Chapter XVII
WAR
412. What is war? *
There is no unanimity among writers on international law as

to the meaning or concept of war, some saying that it is a •pecific
action while others say that it is merely a specific status. Viewed in
the first sense, war may be defined as an armed contention between
the public forces of states or other belligerent communities,
implying the employment of force between the parties for the
purpose of imposing their respec- ive demands upon each other. In
the latter sense, war may exist even without the use of force, as
when one state formally refuses to be governed by the laws of peace
in its relations with another state even if actual hostilities have not
taken place between them.
It has already been observed that the employment of force by
one state against another does not necessarily result in war, e.g., in
the case of reprisals like a pacific blockade. On the other hand, it
may be remembered that when several Latin- American countries
declared war against Germany during World War II, a state of war
was deemed existing between the parties notwithstanding that
force was not resorted to in their mutual dealings.
Kelsen suggests that “like any fact to which international law
attaches certain consequences, the fact ‘war’ must be ascertained
by competent authorities. As long as no objective authority is
established, it is for the states concerned to ascertain the
existence of the fact ‘war’ in the international sense.’’
IKelsen, 25-27).
413. Under present international law, is war allowed as a
method of enforcing international rights? *
War was originally regarded as a legitimate means of
compulsion, provided, according to some writers, that it was a
131
132' INTERNATIONAL LAW REVIEWER
reaction to an international delict, i.e., it was a just war or bellum jus

turn.
However, abhorrence of the widespread suffering it has caused
has inspired many attempts to suppress it, notably in recent times the
Covenant of the League of Nations, the Kellogg-Briand Pact of 1928,
otherwise known as the General Treaty for the Renunciation of War,
and the Charter of the United Nations. The first two agreements were
not very effective because they allowed war under certain conditions.
But the U.N. Charter is more categorical in its outlawry of war.
Thus, its preamble begins with a declaration that the United
Nations is determined “to save succeeding generations from the
scourge of war which twice in our lifetime has brought untold sorrow
to mankind.’’ Toward this end, all members are called upon to abstain
from the use of force in the solution of international problems and to
see to it that even non-members comply with the obligation of pacific
settlement of international disputes.
414. In what instances only is the use of force allowed under the
United Nations Charter? *
Only in two instances, to wit:

(1) In the exercise by a state of its inherent right of self-,
defense under the conditions prescribed in Article 51.
(2) In pursuance of the enforcement action that may be
decreed by the Security Council under Article 42.
415. What are the more important laws of war? *
They are the following:

(1) The Declaration of Paris of 1856, concerning warfare at
sea.
(2) The Hague Convention of 1899, concerning the use of
expanding bullets and asphyxiating gases.
(3) The Hague Conventions of 1907, concerning the | opening
of hostilities; the laws and customs of land warfare;
conversion of merchant ships into warships; the laying of
WAR 133
automatic submarine contact mines: naval bombardment in umes of war:

the exercise of the right of capture in naval war; me discharge of
projectiles from balloons: the adaptation to maritime warfare of the
Geneva Convention of 1864 relative to the treatment of the wounded in
land warfare; the rights and duties of neutrals in land warfare; and the
rights and duties of neutrals in naval warfare. ------- —
»4.i The Geneva Convention of 1925, concerning the use of
asphyxiating, poisonous and other gases and of bacteriological methods
of warfare.
15) The Geneva Convention of 1929, concerning the treatment of
the sick and wounded and prisoners of war.
(6) The Declaration of London of 1936, concerning the use of
submarines against merchant vessels.
(7) The Geneva Convention of 1949, concerning the
amelioration of the sick and wounded on land; the amelioration of the
sick and wounded, and of shipwrecked members of the armed forces
at sea; the treatment of prisoners of war; and the protection of civilian
persons in war. (Kelsen, 65-66).
416. How are the laws of war enforced? In other words, what are
their sanctions? *
The commonly accepted sanctions of the laws of war are the

following:
(1) Protest lodged by one belligerent, usually accompanied or
followed by an appeal to world opinion, against the unlawful acts of
war committed by the other belligerent.
(2) Reparation for damages caused by the defeated belligerent.
(3) Punishment of war criminals.
Reprisals are often mentioned as a fourth sanction, but it is
doubtful if they can be justified under the United Nations Charter
as they are essentially unlawful acts taken by one state for the also
illegal acts of the other belligerent.
rtfffflWATIONAI, I.AW If 10 VI Is W M It
*1/ When does war commence? *
i FTsgito Convention of 1907 relative to the Opening of

1 : 5 provides that hostilities rmist not commence
if .u previous end explicit warning, in tlie form either of a

' 'd 1r la '■tion of war or an ultimatum with conditional r r i •
V-f '■>r is supposed to commence on the date
- > ;fv i r the declaration or on the date it is communicated yr>
thn er^my.
However, this formality has not always been observed,
1 it, the surprise attack on Pearl Harbor by the Japanese in • ■'H,
which started their war with the United States. In such ' ’re? the
rule is that war is supposed to commence on the date r th? first act
of force by one state committed with intent of r îrg war or
committed without such intent but considered / r ho other state as
constituting war.
Thus, war may start: a\ with a declaration of war; b) with
'b* ejection of an ultimatum; or c) with the commission of an ' 4 f
force regarded by at least one of the parties as an act of wW
(Bishop, 590).
4l8. What are the general effects of the outbreak of war?

. Explain:*
(1) The laws of peace cease to regulate the relations of rh?

belligerents and are superseded by the laws of war. Third nt6s are
governed by the laws of neutrality in their dealing ■/nib the
belligerents.
(9) Diplomatic and consular relations between the
belligerents are terminated, and their respective representatives
are allowed to return to their own countries.
(3) Treaties of a political nature, such as treaties of *11?
pnee, are automatically canceled, but those which are intended to
operate during war, such as one 'ing the conduct Of hostilities, are
activated; Multipartite treaties concerning technical or
administrative matters,
postal conventions, are merely suspended between the
belligerents.
(4) Kfiwny public property lomitl in Uu, U > t t i U > i y of
the other belligerent. at the outbreak ol the lumtilitieri ir>f
v/ith tain exceptions, subject to coni ism tion. Kuemy private
pro perty may bo sequestered, subject to return or
reimbursement after the war in accordance with the treaty of
peace,
419. How in the enemy character of individuals deter-

mined?*
Individuals are impressed with enemy character under: a)

the nationality test, if they are nationals of the other belligerent,
wherever they may be; b) the domiciliary test, if they are
domiciled aliens in the territory of the other belligerent, on the
theory that they contribute to its economic resources; and c) the
activities test, if, being foreigners, they nevertheless participate
in the hostilities in favor of the other belligerent.
420. How is the enemy character of corporations deter-

mined? *
Corporations are considered enemies if a majority or a

substantial portion of their capital stock is in the hands of enemy
nationals who consequently exercise control over them or if they
have been incorporated in the territory or under the laws of the
other belligerent.
421. Who are combatants? *
Combatants are those who engage directly or indirectly in

the hostilities. The following are considered combatants:
(i) The regular members of the armed forces, whether
pertaining to the army, navy or air force, except those not ac-
tively engaged in combat duty, such as chaplains and medical
personnel. Ulague Convention No. JVp J907, Regulations, Art.
h*
{%) The irregular forces, such as the francs tireurs, pro-
vided that: a) they are commanded by a person responsible for
Ms subordinates; b) they wear a fixed, distinctive sign
188 IN PNHNATIONAI, LAW ItKVIKWNIt
rooognbahlo at a distance; o) they carry arms openly; and <j) (hoy conduct
l.hoir operations in accordance with the laws and customs of war. (/</.)
L'b The inhabit aid s of unoccupied territory who, on approach of t ho
onomy, spontaneously take up arms to resist I,he invading troops wit head
having had tho time to organize themselves, provided only that. they carry
arms openly and obsorvo tho laws ami customs of war. Those arc known as
«Vries cn masse. (/</., Art. 2).
ytl Tho officers and crow ot merchant vessels who forcibly restst a(t
aok. '
422. To what rights are combatants entitled when captured? *
When captured, combatants are entitled to treatment as prisoners of

war, which include inter alia the rights to be accorded the proper respect
commensurate with their rank, to adequate food and clothing, to safe and
sanitary quarters, to medical assistance, to refuse to give military
information or render military service against their own state and to com-,
munieate wit h t heir family. (/</,, Chapter2).
423. Does this mean that non-combatants, when captured, arc

not. accorded any protection under international law? Kxplain.
No. Non-combatants do not enjoy the same rights as combatants

when captured, but they nevertheless are protected from inhumane
treatment, under the Geneva Convention of 1948 relative to the
Treatment of Civilian Persons in Time of War.
424. What are the basic principles underlying the laws of war?
They are:
(1) The principle of military necessity.

(2) The principle of humanity.
W A If t :-i 7
| M Ht ' ptlmlplc ol * hiYtilt V (//.'>' HZ/// l>t'pf t HuUo; of , . .

Ml " » \
I U,M ini*4 l VM* pthu'iph' of mllMnr y IMR•«?##}ty.
Mil.? ptitMMpIp, I ho belligerents may, subject to the t

«<TM ptinrlplm? employ imy ninoiinl find kind of force to »M,W | i |,h
rnmpleto submission of the enemy with the Jeast » - u>p, |Mr^ of lives,
time and money. It was this principle HMM n-.,M invoked to justify the
bombing of Hiroshima and 1 i 'p•'«-Ori i ho argument being that more
lives would have been i H ihio drastic measure had not been taken and
an \ ,,o in vnsion of efapan had instead been attempted.
», MI her measures as sieges, blockades, bombardments •!*'
ocUofioti of property, which may involve direct hard- M,,h»«s o»» <hp non
combatants within the area, are undertaken 'OMIM, principle. (Hague
Convention No, IV, 1907, Regula- \r1 9/^27).
1 ^* I fiscuss the principle of humanity.

this principle prohibits the use of any measure that is not
*»hnoinfc*k|y necessary for the purposes of the war, such as the
ootr.tf,»,jMg ^gjig and weapons, the employment of dum-dum '<f
'orpalling bullets and asphyxiating gases, the destruction ,f -nut\<P 0p art
an(j property devoted to religious and
l,,,rr,fo.itfirmri purposes, the
bombarding of undefended places, *,hfl f»H-aok on hospital ships. When

an enemy vessel is sunk;
' o»Vr belligerent must see to the safety of the persons on pjilage is
prohibited. The wounded and sick must be *H,'rif,rf0 |y treated without
distinction of nationality by the In whose power they are. The rule that a
combatant f0io may not be killed and the agreements relating
hl i h* treatment of prisoners of war also come under this prin-
'•ijiih
'M7. f tinaiRn the principle of chivalry.
* he principle of chivalry is the basis of such rules as those 'hnl

require the belligerents to give proper warning before
lo> IN IYKN A I'lONAl LAW KKYlttN'KH
launching a bombardment or prohibit the use of perfidy in the

conduct of the hostilities. Ruses and stratagems are allowed
provided they do not involve the employment of treacherous
methods, like the illegal use of Red Cross emblems to throw the
enemy off-guard prior to an attack. In this connection, false flags
are not allowed in land warfare but war vessels may sail under a
flag not their own. subject only to the requirement that they haul
it down and hoist their own flag before attacking. Espionage is
not prohibited under international law notwithstanding that it
involves some deception.
428. What is a spy?*
An indiviual can only be considered a spy if, acting

clandestinely, or on false pretenses, he obtains or seeks to obtain
information in the zone of operations of a belligerent, with the
intention of communicating it to the hostile party. (Hague
Convention No. IV, 1907, Regulations, Art. 29).
429. What are scouts?*
Soldiers not in disguise who have penetrated into the zone of

operations of a hostile army to obtain information are not
considered spies but scouts. (Id.).
430. Under what law may a spy be punished? *
A spy is subject to the municipal law of the hostile party,

except that, under the Hague Convention, “a spy taken in the act
cannot be punished without previous trial.”
A spy who, after rejoining the army to which he belongs, is
subsequently captured by the enemy, is treated as a prisoner of
war and incurs no responsibility for his previous acts of es-
pionage. (Id., Arts. 30, 31).
431. Distinguish between theater of war and region of

war.
The theater of war is the place where hostilities are actually

conducted, as distinguished from the region of war, where
WAfi
bebigerents may lawfully engage each otbe; T.,* ^
.--rise their own territories and the h:gn ,r
V ^;:rai territories.
432. What is belligerent occupation? *
I; is an incident of war which occurs wher, tue terrri/^ry

.f me belligerent is placed under the authority an.c co'.voi. of
-A evading forces of the other belligerent.
433. When is territory deemed occupied?*
Territory is deemed occupied when it is actually placec — dir

the authority of the hostile army. The occupation !s hrdtcC to the
area where such authority has been established mi can be
effectively exercised. ilcL, Art 42*.
It is not necessary that every square foot of the territory :e
actually occupied. It is sufficient that the occupying army tan.
*ri:hin a reasonable time, send detachments of troops to sake its
authority felt within the occupied district. 'Hyde. Vol
434. What is the effect of belligerent occupation on the

sovereignty of the legitimate government?*
Belligerent occupation does not result in transfer or

suspension of the sovereignty of the legitimate government. Orly
the exercise of sovereignty, and not sovereignty Itself, is
transferred to the belligerent occupant. iLaurel v. Misa, 44
O.G.1176*.
435. What is the basic obligation of the belligerent occupant in
the administration of the occupied territory?
The belligerent occupant is required to restore and insure public

order and safety, while respecting, unless absolutely prevented., the
laws in force in the country. This is particularly witk regard to family
honor and rights, the lives of per- private property, and religious
conviction and practices. Hague Convention No. IV, 1907,
Regulations, Arts. 43,461.
| ; | < ! I M I I I ' * lM« lllH i « r # 4 | f{o'/<‘.rnm+nl prohihjUA f , ■
n r
lnj| lift own IMWM in I hi* o< < '#|### f,<rrit/,r y''
"
No Whoimvnr i » - n m n , y , the beilige/<mt OCC* xtfrw
|n onuilgn I o now laws, pobtsa) and non political, provided d<» nol
rnnl invono the generally accepted principles of I ionnl hi w.
137. lMn.V the belligerent occupant make financial ir/vU positJOHN on

Ui<* people of the occupied territory?
The belligerent occupant may exact from the populace contributions

over and above the regular taxes for the needs of Mu; occupying army or the
administration of the occupied territory. (Id., Arts. 49-51).
It may also, for valuable consideration, make requisitions of
things or non-military services for the needs of the occupying army.
(Id., Art 52).
438. May the belligerent occupant issue new military

currency? *
Yes, provided that the purpose is not to debase the economy

of the country. In Haw Pia v. China Banking Corporation, 80 Phil. 604,
our Supreme Court upheld the validity of the payments made by the
debtor in J apanese military notes during the occupation to settle a
loan extended to her in Philippine currency before the outbreak of
the Pacific war.
439. May the belligerent occupant confiscate private property?
No, but those susceptible of military use may be seized, subject

to restoration or compensation when peace is made.
The property of municipalities and of institutions devoted to
religion, charity and education, and the arts and sciences ever) when
State-owned, shall be treated as private property, and their
destruction is expressly forbidden. (Id., Arts. 53-56)-
WAR
440. What is the power of tf.* b«.U>yjcn„<. V/ ^

movable public property? ^ *'<kf
It may only take possession of cash, Uut/l*. securities

which are strictly the property of VM? x* of arms, means of
transport, stores ftR'f Soppjjee, <. .v: all movable property
belonging to thefitate m.'tt.t, ';,ivy for military operations, (/d, /I
rL G.’i).
441. What is the power of the belligerent

immovable public property?
It shall be regarded only as an aCroiniwato,' tuary of

public buildings, real estate, forests, ^ estates belonging to the
hostile State an/: situates ,7> ^ v. cupied territory. {Id., Art 55).
This rule was applied by our Supreme hou/t7, >
Singson Encarnacion, G.R. No. 493, Apr,; 3 . V/; a
lease for five years granted by the occupation go/errneot 1942
over certain municipal fisheries was ceeme/; a ;v;;rat/un ly
canceled upon the re-establishment ol tne Go-.mm.res v;
government in 1944.
442. Explain the right of postliminium *

According to Vattel, it is the right by /• mm persons or
things taken by the enemy are restored t/> the form# stave or
coming actually into the power of the ration W %7j&n belong.”
In its present broadened concept, the ;ra '/MUm? x/u also
signifies the reinstatement of the authority of Sne c& placed
government once control of the enemy ;s ~oss over 14& territory
affected. Thus, upon the end of a bebiêrent '//*,;/* tion, the laws
of the re-established government are re /, /eo a nr; all the illegal
acts of the belligerent occupant, as web as ba lawful acts of a
political character, are invaiidaten
443. Illustrate t\\i'jus postliminium.
Taxes paid to (ho occupation government cannot again be

collected by t he legitimate government upon its restoration, as it
was within the competence of the former to collect taxes while t he
occupation was effective.
But a conviction for a crime against the occupying forces, while
valid during the occupation, would automatically fall to the ground
upon the revival of the lawful government as such conviction is of a
political complexion.
444. Mention some kinds of non-hostile intercourse between

the belligerents.
Among the kinds of non-hostile intercourse are flags of truce,

cartels, passports, safe-conduct, safeguards, and licenses to trade.
445. What is a flag of truce? *
It is a white flag carried by an individual authorized by one

belligerent to enter into communications with the other belligerent.
The bearer, or parlementaire, is entitled to inviolability as long as he
does not take advantage of his privileged position to commit an act
of treachery. However, the hostile party is not obliged to accept a flag
of truce. {Id., Art. 32-34; Fenwick, 578; Wilson and Tucker, 294).
446. What is a cartel?
A cartel is an agreement to regulate intercourse during war on

such matters as postal and telegraphic communication, the reception
of flags of truce, and the exchange of prisoners.
A cartel ship is a vessel sailing under a safe conduct for the
purpose of carrying prisoners of war. (Fenwick. 575; Wilson and
Tucker, 295).
447. W h a t is a passport?
It is a written permission given by the belligerent govern ru,nt or

its authorized representative to an enemy national to - ravel generally in
belligerent territory. (Wilson aruL 'lacker,
' MOi.
448. What is a safe conduct?
It is a pass given to enemy nationals or vessels allowing ; ^ sage

between defined points. This is given either by the I gerent government
itself or the commander of the area : hin which it is effective. (IcL)
449. What is a safeguard?
It is a special protection granted by a commander to any enemy

person or property within his command. When it is enforced by a detail
of men, they must use extreme measures, if necessary 7, to fulfill their
trust and they themselves are exempt from attack or seizure by the
enemy. (Id)
450. What is a license to trade?
It is a permission given by competent authority to carry on trade

despite the state of war. A general license grants to all subjects of the
enemy state or to all its own nationals the right to trade in specified
places or in specified articles. A special license grants to a certain person
the right to trade in the manner specified in his license. (Id, 296).
451. By what agreements may hostilities be suspended between

the belligerents?*
Hostilities may be suspended by a suspension of arms, an

armistice, a cease-fire, a truce, or a capitulation.
452. What is a suspension of arms? *
It is the temporary cessation of hostilities by agreement

of the local commanders for such purposes as the gathering of the
wounded and the burial of the dead. (Fenwick, 579; Wilson and Tucker,
297).
453. What is an armistice?*
It is the suspension of all hostilities within a certain area (local)

or in the entire region of the war (general) agreed upon by the
belligerent governments, usually for the purpose of arranging the terms
of the peace. For example, a general armistice preceded the termination
of World War I. (Hague Convention No. IV, 1907, Regulations, Arts. 36-
37).
454. What is a cease-fire?*
It is an unconditional stoppage of hostilities by order of an

international body like the Security Council fpr the purpose of
employing peaceful means of settling the conflict. (Salonga and Yap,
451-452).
455. What is a truce?*
This term is sometimes used interchangeably with “armistice”

but is now understood to refer to a cease-fire with conditions attached.
(Fenwick, 579).
456. What is a capitulation?*
11 is the surrender of military troops, forts or districts in

accordance with the rules of military honor. (Id.,, 578; Hague
Convention No. IVy 1907, Regulations, Art. 35).
457. How is war terminated? *
War may be terminated:

(1) By simple cessation of hostilities.
(2) By the conclusion of a negotiated treaty of peace.
(3) By the defeat of one of the belligerents. (Bishop, 591;
Wilson and Tucker, 300-302).
WAR l U>
^Vv Discuss simple cessation of hostilities us n mode of ,:-3iiag

war.*
Aar may end in this manner simply because (Ivo -rrer.;s are no
longer willing to continue lighting. Among '*7-ATS that were terminated
by voluntary cessation of hties are those between Sweden and Poland m
171(1, A -;e and Spain in 1720, Spain and its American colonies in .; -1 .
and France and Mexico in 18G7.
V.'hen war ends in this way, property or territory in I,he ^r-5 ffsion of the
respective belligerents upon t he termination t; -He hostilities are
retained by them under t he principle of ut! n :/;re:fs. This is to be
distinguished from an agreement for A A-ras quo an re. which calls for
the complete testoration to
former owners of property or territory that may have ^fady changed
hands during the war, with the exception of —-r sndbootw
459. What is a negotiated treaty of peace?
Ibis is a treaty concluded by the belligerents when nhrber is able to

effect a decisive victory over t he other, as was me case with Great Britain
and the United States when they em-ered into the Treaty of G hent to end
t he War of 1812*
460. Discuss the defeat of one of the belligerents as a mode of

terminating war.
The defeated belligerent may surrender either condi* tionally or

unconditionally. In the former casts a treaty of peace is concluded which
makes provision for the conditions specified in the surrender. In the latter
ease, thoAbetorious belligerent usually issues a unilateral declaration
announcing the end of the war, to be followed by a treaty of peace in which
the reparation to be made by the vanquished state and the disposition of
its territory and property are dictated by the vie* torious state.
(’linplor
XVIII
(III Wind. I M neutrality?*

NKUTKAIilTY
Noutnilit v in tlio condition of a ntuto that does not take part.,

directly or indirectly, in a war between other states. If recognised by
the belligerents, this condition gives rise to rights and obligations
between them and the neutral state in their mutual relations.
462. Is perfect or absolute neutrality possible at present? Why?
No, for the following reasons:

(1) The techniques of modern warfare a*nd advances in
international commerce have involuntarily involved third states in
hostilities to which they are technically not parties.
(2) The compulsions of present-day international politics
make it difficult for states to maintain a strictly impartial attitude in
the face of conflicts that, although they may not be actually engaged
therein, will unavoidably affect their security and future, t
(3) The provisions of the United Nations Charter require
member-states to participate in any preventive or enforcement
action that may be decreed by the Security Council in case of threat
to or breach of the peace of the world.
463. Distinguish neutrality from neutralization. *
(1) Neutrality is dependent on the attitude of the neutral

state, which is free to join either of the belligerents any time it sees
fit; neutralization is the result of a treaty wherein the duration and
other conditions of such neutralization are agreed upon by the
neutralized state and other states.
(2) Neutrality is governed by the law of nations;
neutralization is governed by the neutralization agreement.
146
NEUTRALITY 147
3' Neutrality obtains only during war; neutralization in . -

ded to operate in peace andin war.
4 1 Only states may become neutral; neutralization
may 7 to portions, of the territory oF°tbe state, like
islands, Ve:; and canals. *
-’64. Where are the more important rules on neutrality

found*?*
They may be found in the customary law of nations and in

su:h conventions as the Declaration of Paris of 1856, the Hague
Conventions of 1907, and the unratified Declaration of, London of
1909.
465. In general, what are the mutual rights and duties of

the neutral and belligerent states? *
A neutral state has the right and duty to abstain from

taking part in the hostilities and from giving assistance to
either belligerent; to prevent its territory from being used by
the belligerents in the conduct of the hostilities; arid to ac-
quiesce in certain restrictions and limitations that *EKS
belligerents may find necessary to impose, especially in con-
nection with international commerce. (Schwarzenberger, 208).
The belligerents, on the other hand, are bound to respect the
status of the neutral state, avoiding any act that will directly
or indirectly involve it in their conflict and submitting to any
lawful measure it may take to maintain or protect its
neutrality.
466. For what purposes may neutral territory not be used by

the belligerents?*
,, In general, war activities by or ori behalf of the I belligerents may not

be undertaken in the territory of the | ®eubr&l state without
infringement of its neutrality. Neutral erritory is inviolable and may
not be used by the belligerents the movement of their troops, the
transport of war sup- es> fche erection of wireless stations for exclusively
military
118 I NTKIt.N ATM >11AI. MAW IM ',VIMV/MK
purpose's, the rurruiting of nolriioni, and Hirnihfr kmdn f ,j military

operations. All ol those nots tillould bo resisted by iyif, neutral state,
with finned force if noo,e«o;j/y,. pad ^;ch resistance is not to be
regarded as a hostile,act. (Hague CW vent ion No. V, 1907, Chapter/).
467. In what instances may neutral territory he validly used

by the belligerents?*
The use of neutral territory is not completely barred to the

belligerents. For example, the passage of sick and wounded troops
is allowed through a neutral state provided personnel and materials
of war are not carried. Persons bound for enlistment in the
belligerent armies may cross the neutral frontiers if they do so
individually and not as a body. The neutral state itself may give
refuge to belligerent troops but must intern them as far as possible,
at a distance from the theater of war. Escaped prisoners of war need
not be detained by the neutral state but must be assigned to a place
of residence if they are allowed to remain. (Id, Chap ter 2). „
468. Is the use of neutral waters by belligerent warships

entirely prohibited? Explain. *
The neutrality of a state is not affected by the mere passage

through its territorial waters of warships or prizes belonging to
belligerents. However, they may not enter neutral ports, harbors
and roadsteads except only in cases of unseaworthiness, lack of fuel
or provisions, or stress of weather. (Hague Convention No. XIII,
1907, Arts. 10, 14, 17, 18,19, 20).
469. How long is the belligerent vessel permitted to stay in

the neutral port?
The usual limit is 24 hours, but this may be shortened or
extended, depending on the reason for the entry. (Id., Arts. 12, 14).
NEUTRALITY Ml)
470. What is the degree of provisioning and repairs of ^ liferent

vessels that may be allowed in the neutral port?
Belligerent warships may only revictual in neutral ports ::

riadsteads to bring up their supplies to the peace standard. Sirdlariy,
they may only ship sufficient fuel to enable them to :ea:h the nearest port
in their own country.
As for repairs, only such as are absolutely necessary to iia/-e the
vessel seaworthy may be undertaken, and they may
add in any manner whatsoever to its fighting force. The neutral
power shall decide what repairs are necessary, and tdese must be
carried out with the least possible delay. (Id, Arts. 17-19).
471. May vessels from different belligerents be allowed together in

the same neutral port?
Yes, but in such a case a period of 24 hours must elapse between

the departure of the vessel of one belligerent and the departure of the
vessel of the other belligerent, the order being determined by their
arrival. (Id., Art. 16).
472. How many vessels from one belligerent may stay in neutral
waters at the same time?
Not more than three vessels from any belligerent shall be

allowed simultaneously in the same neutral port or waters. (Id., Art.
15).
473. May neutral waters be used as asylum for belligerent vessels

under pursuit or attack?
No. Any man-of-war entering a neutral port for this reason should be
asked to leave and, if it refuses, should be rendered incapable of putting to
sea for the duration of the war, its officers and crew being interned by the
neutral state.
474. What is the rule if a prize is captured in neutral waters or

brought thereto without valid justification?
150 IN'IWiWA'UOW/.i/ ///. H
The neutral power //^M <-'h'/U/y to* M**vi44v <U> to release

it with its oJJuxmfc */VS ***<*/ W-4 t& WtAttl ,:M pr'/s crew. (Jd.,
Arts. tihitfy.
475. What should don* v/; v, *lt^f||

forced to land on neutral he#ritor/7 £
The aircraft should be -#‘/i /'4 ^>h4r# £M itm interned.
476. Give examples of c-.-tMjt, #’*%*'* the'

neutral state may not extend to any
The neutral state may /M f4- ,llA4/ tor tm gents,-

grant loans or even se)J sopx.'Lee tv *my o* 4r 4
The famous Lend Jx?ase Act of , V,, / - 4h4trde which the
United States Uw4 ife/v; wa.< ,"*•%-‘*,4 O gland during World War
11, was, shrilly * YsAviXm rf
American neutral duties.
477, Does in ter nation* I law e-JJLow 4%* y-..* *;-,***£ ryf war
supplies by the belligerents, m t;*e or<v,v*-.*y ov>«$* ef eettl'
merce, from private traders in s ^ tJ *w&*r*. *
The neutral state is not obbg*/: y, y'e/^'Aiivv exporter transit, for

the use of either '/ s.vye, s.vuv.onition.
or in general of anything which oo,y ^ o? M4 tv 4,-, rrmy 6r fleet, (ld.} A
rt. 7),
However, it must employ hM mee-,',% *4 #4 h^jyvse* w pre
vent the fitting out or arming of any yeev**; w?&my >->risdiC' tion
which it has reason to believe 4 , / V, ne used
against a belligerent, it is slso oovoc tv the .same
vigilance to prevent the departure j/vr of any
vessel intended toengage in hostile ypv/ah^/^ /Axih aad been
adapted entirely or partly v/ihAo t/a. y > r4r.votior» for use
in war. (/d Art. 8).
Thus, in the famous A */w? wh*ieh wae the
subject of arbitration in G#*#* ^yyWv-o w&e -md hable
for, among others, its failure ho p#eyew44h* 4eby*hy of sever si
Mlr.iri It A l ,I I V
HH«"I ««"'l «"r.0.| \,y PthiffhmUhm 1,„

, i c u x l I'V) Mm ConMljMi/y tit,tiny
1|M t iv/il will
l/»; Under inloriiiiiioMiil law, i* the neutral HMS obliged , ,j,ihi» if*
iintioviidN from dealing with the b# JJjgerent*?
M is common practice for neutral etnfm to enact Jcg/sia , designed to

avoid thoir involvement in foreign wars as a ,0 of I ho net s of thoir
nationals. This in not a duty impwx) nternational law, however, for
neutral states are free to , t hoir nationals, in their private capacity,
todeaJ with any ■ i.e belligerents.
47T What is the effect of transactions between . UigArents and the

nationals of neutral states upon the drably of such states? Explain.
if, for instance, the nationals of a neutral state enlist in a

v=iM^»rorit army or engage in commerce with a belligerent the neutrality
of their own state is not thereby com- ;,/nTr,is*d in the absence of special
agreement imposing on the * tr»l state the duty of preventing such
transaction.
International law considers the relationship strictly y/een the
individual and the belligerent states and whatever '•*Mship may he
suffered by its national as a result thereof as a rule, be acquiesced in by
the neutral state.
4*50. fIfscfiss the right of visit and search. *
Thi<* is the right of belligerent vessels and aircraft to in- t'tt<

y,u<\ inspect neutral merchant vessels on the high seas
It* the purpose of determining if they are in any way connected vith the
h'/fttilitie*, eg., carrying contraband, attempting to i, blockade, or
engaged in unneutral service, in favor of the Ot/har lv*llig0'0fit.
4^1 What 1# the effect of resistance to the exercise of the

fight, of visit end search?
io k : INTERNATIONAL LAW REVIEWER
Forcible resistance to the legitimate exercise of the right

of stoppage, visit and search, and capture, involves in all cases
the condemnation of the vessel. The cargo is liable to the same
treatment which the cargo of an enemy vessel would undergo.
Goods belonging to the master or owner of the vessel are
regarded as enemy goods. (.Declaration of London, 1909, Art. 63L
482. What is prize? *
Prize refers to a thing captured at sea in time of war, such as a

neutral merchant vessel taken by a belligerent warship for engaging
in hostile activities or resisting visit and search, or because of
reasonable gjaspicion that it is liable to confiscation.
483. Is prize subject to summary confiscation? *
No. It must be brought to a prize court for adjudication. The only

exception is where the vessel or goods are enemy public property, title
to which is immediately transferred upon capture to the other
belligerent.
484. What is a prize court? *
It is a tribunal established by a belligerent under its own laws,

in its territory or in the territory of any of its allies, for the purpose
of determining the validity of maritime captures.
485. What law is applied by a prize court? *
A prize court, although established by municipal law, applies

the rules of international law.
486. What is the reason for the establishment of prize

courts?
It is to avoid arbitrary disposition of the prize and to protect
the belligerent from claims that neutral states may file against its
alleged invalid confiscation.
487. What rules were laid down by the Dwlnrulion of Paris of
1856 regarding the treatment of sea borne good* j/j time of war?
(1) yEnemy goods under a neutral flag are not subject to

capture, except contraband of war.
(2) Neutral goods under an enemy flag are not subject \/>
capture, except contraband of war.
488. Define and classify contraband. *
Contraband is the term applied to goods which, although

neutral property, may be seized by a belligerent because they
are useful for war and are bound for a hostile destination.
Absolute contraband is necessarily useful for war under all
circumstances, like rifles and ammunition.
v1Conditional contraband has both civilian and military uses, like
food and clothing.
A third category is usually added under what is known as a “free
list” which includes goods useful for war and bound for the enemy but
exempted from confiscation for humanitarian reasons. Among these
are medicines for the use of the sick and wounded. {Id., Arts. 22-29).
489. When is contraband subject to capture? *
Absolute contraband is liable to capture if it is shown to be

destined for territory belonging to or occupied by the enemy, or to
the armed forces of the enemy. It is immaterial whether the
carriage of the goods is direct or entails either transshipment or
transport over land. (Id, Art. 30).
Conditional contraband is liable to capture if it is shown that
it is destined for the use cfa the armed forces or of a government
department of the enemy State, unless in this latter case the
circumstances show that the articles cannot in fact be used for the
purposes of the war in progress. {Id, Art. 33).
IPO Why IIIIM (ho HIHIVO <UHMII<‘M<»» lost much of Jtg
practical value?
I'ust. luvmiso most wnrlimo importations are now government

controlled ay a result oletirmiiey restricflk/ns.
Second. because under t he doctrine of ultimate consump-
?j\>ru gxxxls intended for civilian use which may ultimately find thoir
way to and be consumed by the armed forces of the belligerent states
are also considered liable to capture on the way.
491. Discuss the rules on the disposition of contraband and

other goods captured with it. *
Contraband is subject to confiscation. N

Innocent goods shipped with and belonging to the owner of the
contraband are also confiscated under the doctrine of infection.
Innocent goods belonging to other persons are exempt from
confiscation but their owners are not entitled to damages for delay and
inconvenience. {Id, Arts. 39, 42, 43).
492. Will the vessel carrying the contraband also be con-
fiscated?*
The confiscation of the vessel carrying contraband is
allowed if the contraband forms, either by value, by weight, by
volume or by freight, more than half the cargo. (Id., Art. 40).
493. When and where may a vessel carrying contraband be

captured? *
It may be captured on the^tfgh seas or on the territorial

waters of the belligerent throughout the whole course of its
voyage, even if it has the intention to touch at a port of call before
reaching the hostile destination.
A capture is not to be made on the ground of a carriage of
contraband previously accomplished and at *Enifi rv°rn- pieted.
(Id., A rln. 37-3H).
NEUTRALITY
494. What practice haw been devised by merchant /( to minimize

the riwk of capture for carriage of contra-
b-i nd? *
Merchant vessels have resorted to the pretense of stop- ; * v , at

an intermediate neutral port, where the contraband is shaded so as
to give the appearance that it was actually coined for this port,
although it is subsequently loaded a spin, in the same vessel or in
another vehicle, for delivery to its real destination.
The vessel hopes thus to acquire immunity during its /oyage
from the port of origin to the neutral port and to run the risk of
capture only from the time it leaves the neutral port until it
reaches the belligerent port.
495. What is the doctrine of ultimate destination? *
This is the doctrine evolved to counteract the subterfuge

described above, and embodied in Article 37 of the unratified
Declaration of London of 1909. Even if a vessel does make a stop
at an intermediate neutral port, it is nevertheless considered
under this doctrine to be in one continuous voyage beginning from
the port of origin to the hostile destination and liable to capture
during any part of this voyage.
This doctrine is also called the doctrine of continuous
vrr/age if the goods are reloaded at the neutral port on the same
vessel and the doctrine of continuous transport if they are reloaded
on another vessel or other form of transportation.
4 9 W h a t is a blockade? *
A blockade is a hostile operation by which the vessels and
aircraft of one belligerenTpriventâll other vessels, including
those of neutral states, from entering or leaving the ports or
coasts of the other belligerent, the purpose being to shut off tne
place from international commerce and communication *bth
other states.
l h(i
■ N'millAT/OMAI, I.A 7/ l't>//l',//gf f
11)7 VV ImI MI t*< IIM Hajiiltdbtj ot n 'infill
(l| II IIMIM I lin <wl.iihht)h«d by the p'OpOf

flu'tho/'rfjfa, , l'l'° bhuUmling nl nl-n, uumilly the chief
of %f,eU^ v ^
(-) II. miitif be ollwMvu, /r, it miwh h*> rntunUinM ^

lort*(' Mullirionl to prevent entry mho or o/il f/Ofh tOh ;
count.
(II) 1 1 , imiNl, be duly communicated in » dwforutior, tying:
n) the date when the blockade 7 /ili begin; b; ^ geographical limits
of the blockaded count; and c; the delay f/, be allowed neutrul
vessels for departure.
(4) It must be limited to the jports and coasts belonging to, or
occupied by, the enemy.
5. It must be impartially applied to the ships of all nations. (Id, 7,
2, 5, 8, 9, 77, 76*).
498. What is the duration of a vessel’s liability to capture for

breach of blockade? *
The liability continues as long as it is pursued by the ships of the

blockading state after it has left or tried to enter the blockaded port. If
the pursuit is abandoned or the blockade is lifted, capture of the vessel
can no longer be made. (Id., Art 20. )
499. What are the consequences of a breach of blockade?*
A vessel found guilty of a breach of blockade is liable to

condemnation. The cargo may also be confiscated unless it is
shown that at the time it was shipped the owner neither knew
nor could have known of the intention to violate the blockade.
{Id., Art. 21.)
500. When does a blockade terminate?*
(1) When the blockading force voluntarily withdraws.

(2) When the blockading force is driven away.
(;j) When the blockade ceases to be effective.
Mj When hli/t j*. >r/ f
)>,<•.
blockading f c » i / i i -
(fj) Wljfcl* the V/0* llhHf f*
501. What In unnCMM*d boHtwf*

I hit tent# fj I fit$i '/U..e r'/mhi^d N hf nct$, of % tttOte
hostile chaiacter than annuls tA *.onM'dnmd o? tfteath Of
blockade, wliieli hit unde* tnhen by mmAh"nt /k^le of anet lit
a l state in aid ot cither ol the belhgmenM;
f>02. When is u y*:nmJ imjÛ io condemnation for arn nctilrdl

service? *
(J) If )ly iH imAsUtu n 'injuyh oepfeefad/ b/f the transport

ot individmd pimoengms mnhndmd to (,he armed forces of the
ouerny or tor the M fmhimmhon o> information hi the interest
of Uifc enemy.
(2) It, with the knonM^y* ot the or/ner, master^ or
charterer of Mm vessel, It h* M voty/orting a military detach-
ment of the enemy, o* one or moo* persons who, during the
voyage, lend dnecr nsfhsMngo to Mm operations of the enemy.
(3) 11 ity takes a do or f //**> tin the hostilities.
(4) If it is unite# the oidoM< m control of an agent
placed on. hoard hy the enemy goymomonJ
(5) II it is chnrterrd enthniy hy Mm enemy
government.
(/</., Aria. 4b-4ti)>
503* What is the tight of gngwry7*
Hy Mm right ol sngm y, a bnlOgemnb may, Upon

payment of just compensation, se)/o, mg; or destroy in Case
of urgent necessity for purpose# oi offonsk or defense',
neutral property found m its ten) to# y, in enemy I &r
Minty, Ot on the high seas.
504, Wbe## is imidighty *l(k*m*d terminated? What

are
the effects of such lerinmotlnn / *
Neutrality is tmnmmM v/hnn the neutral state itself
joins Urn vym o# upon the eomdtodon ol peace.
158 INTKKNATION AL LAW KK V/ttWgJl
In the first case, the hitherto neutral state will be gov*

erned by the laws of war in its dealings with the other
belligerents and by the laws of neutrality in its relations with
other states. In the second case, all states will again be goy.
erned by the laws of peace in their relations inter se.

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INTERNATIONAL LAW

CENTRAL LAWBOOK PUBLISHING CO., INC.

THIS REVIEWER is primarily intended as a guide, and merely as a guide,

Another purpose of this book is to help the bar reviewee pressed

Chapter I THE NATURE OF INTERNATIONAL

APPENDIX ............................................................ 160

A. Charter of the United Nations .................. 160

B. Amendments to the Charter of the United

T11K NATURE OF INTERNATIONAL LAW

1. Whut is international law? *

International law is that branch of public law which regulates the

2. What are the main divisions of international law? *

International law is divided into: -•■>

(i) The laws of peace;

As suggested in Article 38 of the Statute of the International Court

4. Is every treaty or convention, a source of international law?

No. It will be so only if it is concluded by a 'sizable

5. May bilateral treaties be considered a primary source

Yes, if they are of the same/nature, contain practically ;

slates, although separately. .■v4*

6. What is an international custom, and how does it dif-

An international custom is a long-established way of do-

7. What are the defects of custom as a primary source of

One defect is the difficulty of determining when a practice

8. What are the general principles of law? Give ex-

These are rules which, because of their intrinsic merit, have

9. Is the principle of stare decisis observed in the

No, because Article 59 of the Statute provides that decisions of

10. When may the teachings of publicists be accepted as

Such teachings may be so considered if the publicists are

11. What is the basis of international law? In other words,

There are three theories on this matter.

, iMi'.tMii I > « \ f n i » i « / hi 111« • < (i.ft i»l i *iii *'«'i11 i< mu I

\2. Ih "piivnle ln(rimilIOMMI lawH part of

l!l. What In International comity? Distinguish from internal

All tin<u* mid to the dealings of states with one another.

M. What Is international administrative law?

It is the body ol rules lonmdstud by states, usually in in-

lb. Would yon say that Internetional law is true law? W

By conventional criteria, international law may not qualify as true

16. If international law is true law, what then are its

17. What are the functions of international law? *

As always, international law is in a state of flux. The Charter of

particularly in the development of weapons, have made signifi-

19. What is the International Law Commission?

It is a body created by the General Assembly in 1947 for the

RELATION OF INTERNATIONAL AND

(5- 20. How does international law diffe-

From the viewpoint of the monisis, there can be no differ-

21. Is international law part of municipal law?

22. What is the doctrine of incorporation? How does it

The doctrine of incorporation postulates that the generally

24. Is the declaration in Article II, Section 2, of our

Not really, because, as previously stated, the mere fact

It cannot be regarded as a mere choice of options in the sense

25. What are the other provisions of our Constitution

Among such provisions are the following:

26. In case of conflict between international law and

From the viewpoint of international tribunals, the decision

27. The Retail Trade Nationalization Law was assailed on the

The Supreme Court held that there was no violation of the

28. G petitioned the Supreme Court for permission to

THE INTERNATIONAL COMMUNITY

29. What is the international community? i * H 1

, iMi'.tMii I > « \ f n i » i « / hi 111« • < (i.ft i»l i iii '«'i11 i< mu I

Aivoidmg I n Aillrlo ’/ ol llio (liiiibn, ihr. I III imti ib; imu\bei», in