INTERNATIONAL LAW MUNICIPAL LAW v.

INTERNATIONAL LAW
Municipal Law International Law
CHAPTER 1: GENERAL PRINCIPLES Issued by a political superior for Not imposed upon but simply adopted by
observance by those under its authority states as a common rule of action among
NATURE AND SCOPE themselves
A law of sovereign over those subjected A law, not above, but between sovereign
INTERNATIONAL LAW to his sway states and is, therefore, a weaker law
Traditional definition: A body of rules and principles of action which are binding upon Consists mainly of enactments from the Derived not from any particular legislation
civilized states in their relations with one another lawmaking authority of each state but from such sources as international
customs, international conventions and
New definition by Schwarzenberger and first employed in 1870 by Jeremy Bentham in the general principles of law
his Introduction to the Principles of Morals and Legislation: A body of legal rules which Regulates the relations of individuals Applies to the relations inter se of states
apply between sovereign states and such other entitles as have been granted among themselves or with their own and other international persons
international personality states
Violations are redressed through local Violations are resolved through state-to-
DIVISIONS OF INTERNATIONAL LAW administrative and judicial processes state transactions ranging from peaceful
methods like negotiations and arbitration
1. Laws of peace – govern the normal relations of states to the hostile arbitrament of force like
2. Laws of war – governs the relations of states when war breaks out between reprisals and even war
or among some of them Breaches generally entail only individual Infractions is usually in a collective in the
3. Laws of neutrality – governs the relations of states not involved in the war responsibility sense that it attaches directly to the state
with the belligerents or those involved in the war. However, they continue to and not to its nationals
be regulated under the alws of peace in their relations inter se
The law of nations, although not specially adopted by the Constitution or any
THEORIES CONCERNING THE RELATIONSHIP BETWEEN INTERNATIONAL municipal act, is essentially a part of the law of the land. Its obligation commences and
LAW AND NATIONAL LAW runs with the existence of a nation.
Monism Dualism
There is no substantial distinction International law and national law are THEORIES AS TO MANNER OF ADOPTING INTERNATIONAL LAW AS PART OF
between international law and municipal independent of each other and both THE LAW OF THE STATE
law. It supposes that international law systems are regarded as mutually 1. Doctrine of Incorporation – a State is, by reason of its membership in the
and national law are simply two exclusive and independent. They exist family of nations, bound by the generally accepted principles of international
components of a single body called “law” side by side within different spheres of law, the same being considered as part of its own laws
action – the international plane and the 2. Doctrine of Transformation – requires the enactment by the legislative body
domestic plane of such international law principles as are sought to be part of municipal law
Where municipal legislations permit the Naturalist view: The primary function of
exercise of international law rules, this is all laws is concerned with the well-being The basic rule would be to attempt to reconcile the apparent contradiction and thereby
on sufferance as it were and is an of individuals, and advocates the give effect, if possible, to both systems of law. For this purpose, it should be presumed
example of the supreme authority of the supremacy of international law as the that municipal law is always enacted by each state with due regard for and never in
state within its own domestic jurisdiction, best method available of attaining this defiance of the generally accepted principles of international law.
rather than any influence maintained by
international law within the internal Hierarchical view: Since the same RULES IN CASE OF IRRECONCILABLE CONFLICT BETWEEN A TREATY AND
sphere definition of “law” appertains within both THE CONSTITUTION
the internal sphere and the international Generally, the treaty is rejected in the local forum and most constitutions contain
sphere, a logical unity is forged, and provisions empowering the judiciary to annul treaties and the legislature to supersede
because states own their legal them with statutes, thereby establishing the primacy of the local law over international
relationship to one another to the rules of law. However, treaties are upheld by international tribunals as a demandable
international law, it follows that obligation of the signatories under the maxim pacta sunt servanda. Under the
international law is superior to or more International Law Commission, it states that “every State has the duty to carry out in
basic than municipal law good faith its obligations arising from treaties or other sources of international law, and

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it may not invoke provisions in its constitutions or its laws as an excuse for failure to
perform this duty.
EFFECT ON TREATY WHEN IT IS IN CONFLICT WITH A NATIONAL LAW
In the case of Gonzales v. Hechanova, the Supreme Court affirmed that the
Constitution authorizes the nullification of a treaty not only when it conflicts with the
Constitution but also when it runs counter to an act of Congress. In the case of Ichong
v. Hernandez, the Supreme Court held that the treaty is always subject to qualification
or amendment by a subsequent law, and the same may never curtail or restrict the
scope of the police power of the State.
BASIS OF INTERNATIONAL LAW
The basis of international law is the law of nature described as the “higher law” or “a
rule of human conduct independent of positive enactment and even of special divine
revelation, and binding always and everywhere in view of its intrinsic reasonableness”
International law as thus viewed is therefore not a law between but above states. It is
not a law of subordination but of coordination. Under this school of thought, a more
“positive” identification with or acknowledgement of the law is necessary to make it
binding on the states it purports to govern, so that any state withholding its consent
can disclaim any responsibility of observance. Such consent, it is asserted, is
expressed in the case of conventional law, implied in the case of customary law, and
presumed in the case of the general principles of law. This theory adheres more
closely to the ideas of Grotius, the “father of international law,” that the system of
international law is based on “the dictate of right reason” as well as “the practice of the
states.”
SANCTIONS OF INTERNATIONAL LAW
The compulsive force of reciprocal advantage and fear of retaliation
1. The inherent reasonableness of international law and in their common
conviction that its observance will redound to the welfare of the whole
society of nations
2. The normal habits of obedience ingrained in the nature of man as a social
being
3. The respect for world opinion held by most states, or their desire to project
an agreeable public image in order to maintain the goodwill and favorable
regard of the rest of the family of nations
4. The constant and reasonable fear, present even in the most powerful of
states, that violations of international law might visit upon the culprit the
retaliation of other states
5. The machinery of the United Nations which, within the sphere of its limited
powers, has on many occasions proved to be an effective deterrent to
international disputes caused by disregard of the law of nations
ENFORCEMENT OF INTERNATIONAL LAW
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Observance – essentially subjective and mainly dependent on the volition of the entity
which is supposed to be governed by the law
Enforcement – process by which such observance may be compelled, usually by
force or at least the threat of force
FUNCTIONS OF INTERNATIONAL LAW
1. To establish peace and order in the community of nations and to prevent the
employment of force, including war, in all international relations
2. It strives as well to promote world friendship by leveling the barriers, as of
color or creed, that have so far obstructed the fostering of a closer
understanding in the family of nations
3. To encourage and ensure greater international cooperation in the solution of
certain common problems of a political, economic, cultural or humanitarian
character
4. To provide for the orderly management of the relations of states on the
basis of the substantive rules they have agreed to observe as members of
the international community
DISTINCTIONS WITH OTHER CONCEPTS
INTERNATIONAL MORALITY OR ETHICS – embodies those principles which govern
the relations of states from the higher standpoint of conscience, morality, justice and
humanity
INTERNATIONAL COMITY – refers to those rules of courtesy observed by states in
their mutual relations, is that violations of its precepts are not regarded as constituting
grounds for legal claims
INTERNATIONAL DIPLOMACY – relates to the objects of national or international
policy and the conduct of foreign affairs or international relations
• Jus feciale – the law of negotiations and diplomacy which determined the
duties of the Fecial College of the old Roman Republic
INTERNATIONAL ADMINISTRATIVE LAW – that body of laws and regulations, now
highly developed, created by the action of international conferences or commissions
which regulate the relations and activities of national and international agencies with
respect to those material and intellectual interests which have received an
authoritative universal recognition
CHAPTER 2: SOURCES OF INTERNATIONAL LAW
Under Article 38(1) of the Statute of the International Court of Justice
Primary sources:
a. International conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;
b. International custom, as evidence of a general practice accepted as law;
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 c. The general principles of law recognized by civilized nations;
Secondary sources:
a. Judicial decisions
b. Teachings of the most highly qualified publicists of the various nations
TREATIES
• The general rule is that the treaty, to be considered a direct source of
international law, must be concluded by a sizeable number of states and
thus reflect the will or at least the consensus of the family of nations
• Need not be entered into at the outset by a majority of the states forming the
international community; even if originally agreed upon only by a few states,
the treaty may become binding upon the whole world if it is intended to lay
down rules for observance by all and it is subsequently signed or acceded
to by other states which thereby submit to its provisions
CUSTOM
• Defined by Fenwick as a practice which has grown up between states and
has come to be accepted as binding by the mere fact of persistent usage
over a long period of time
• Distinguished from usage in that the latter, while also a long established
way of doing things by states, is not coupled with the conviction that it is
obligatory and right
GENERAL PRINCIPLES OF LAW
• Mostly derived from the law of nature and are observed by the majority of
states because they are believed to be good and just
• Examples: prescription, estoppel, pacta sunt servanda, consent and res
judicata
SECONDARY SOURCES
• In considering the decisions of courts as subsidiary sources of international
law, Art. 38 does not distinguish between those rendered by international
tribunals like the International Court of Justice and arbitration bodies and
those promulgated only by national courts
o Both kinds of decisions are acceptable as long as they are a
correct application and interpretation of the law of nations
o As Fenwick says, “undertake to establish the true rule of
international law”
• [CASE] Thirty Hogshead of Sugar v. Boyle
Ruling by Chief Justice John Marshall of the US SC: “The decisions of the
courts of every country, so far as they are founded upon a law common to
every country, will be received, not as authority, but with respect. The
decisions of the courts of every country show how the Law of Nations, in the
given case, is understood in that country, and will be considered in adopting
the rule which is to prevail in this.”
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• The doctrine of stare decisis is not applicable in international law, and so the
decision of a court in one case will have only persuasive value in the
decision of a subsequent case
• The second subsidiary sources of international law, viz., the writings of
publicists, must also be, to qualify as such, a fair and unbiased
representation of international law, and by an acknowledged authority in the
field. Mere credentials are obviously not enough as the jurist may have been
motivated by national pride or interest, or error, in interpreting a rule of
international law or in supposing the existence of a rule which does not in
fact form part of the law of nations.
CHAPTER 3: THE INTERNATIONAL COMMUNITY
International community – the body of juridical entities which are governed by the
law of nations
SUBJECT AND OBJECT DISTINGUISHED
Subject of international law – entity that has rights and responsibilities under that
law. It has international personality in that it can directly assert rights and be held
directly responsible under the law of nations
Object of international law – person or thing in respect of which rights are held and
obligations assumed by the subject. It is not directly governed by the rules of
international law
DEVELOPMENT OF THE INTERNATIONAL COMMUNITY
STATES
State – defined as a group of people living together in a definite territory under an
independent government organized for political ends and capable of entering into
international relations
Nation – strictly speaking, as evidenced by its etymology (nasci, to be born), indicates
a relation of birth or origin and implies a common race, usually characterized by
community of language and customs
ELEMENTS OF A STATE TO BE CONSIDERED INTERNATIONAL PERSON
1. Permanent population
• People – refers to the human beings living within its territory;
should be of both sexes and sufficient in number to maintain and
perpetuate themselves
2. Defined territory – fixed portion of the surface of the earth in which the
people of the state reside
3. Government – the agency through which the will of the state is formulated,
expressed and realized
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 4. Sovereignty or independence – external aspect or manifestation of
sovereignty, that is, the power of the state to direct its own external affairs
without interference or dictation from other states
Two other elements that have not yet met with general acceptance: recognition by
other states and possession of a sufficient degree of civilization
CAPACITY OF STATES
CLASSIFICATION OF STATES
1. Independent – having full international personality; a state which is not
subject to dictation from others
a. Simple state – one which is placed under a single and
centralized government exercising power over both its internal
and external affairs
b. Composite state – consists of two or more states, each with its
own separate government but bound under a central authority
exercising, to a greater or less degree, control over their external
relations
• Real Union – created when two or more states are
merged under a unified authority so that they form a
single international person through which they act as
one entity
• Federal Union or Federation – combination of two
or more sovereign states which upon merger cease
to be states, resulting in the creation of a new state
with full international personality to represent them in
their external relations as well as a certain degree of
power over their domestic affairs and their
inhabitants
• Confederation – an organization of states which
retain their internal sovereignty and, to some degree,
their external sovereignty, while delegating to the
collective body power to represent them as a whole
for certain limited and specific purposes; regarded as
an imperfect international person
• Personal Union – comes into being when two or
more independent states are brought together under
the rule of the same monarch, who nevertheless
does not become one international person for the
purpose of representing any or all of them
§ Not a composite state because no new
international person is created to represent it
in international relations
• Incorporate Union – union of two or more states
under a central authority empowered to direct both
their external and internal affairs and possessed of a
separate international personality
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• Differs from a real union in that only external
affairs are placed under the control of the real
union
Neutralized states – independent states, whether it be simple or
composite, neutralized through agreement with other states by
virtue of which the latter will guarantee its integrity and
independence provided it refrains from taking any act that will
involve it in war or other hostile activity except for defensive
purposes
2. Dependent – do not have full control of their external relations
a. Protectorate – always retains a greater measure of control over
its external affairs than the suzerainty
• Where the protectorate has enjoyed a degree of
independence prior to the treaty, its status represents
in theory a voluntary act of subordination to the
protecting state by contrast with the concession of
autonomy made by the suzerain state to the vassal
state
b. Suzerainty
THE UNITED NATIONS
• Not a state or a superstate but a mere organization of states, it is regarded
as an international person for certain purposes
o Enjoys certain privileges and immunities
o Has the right of legation
o Can assert diplomatic claim on behalf of its officials, and treaties
may also be concluded by it
o Can even wage war
THE VATICAN CITY
• “For the purpose of assuring the Holy See absolute and visible
independence and of guaranteeing to it absolute and indisputable
sovereignty in the field of international relations.”
• Doubt is still expressed as to its real status
COLONIES AND DEPENDENCIES
• Part and parcel of the parent state, through which all its external relations
are transacted with other states; therefore, has no legal standing in the
family of nations
• Have been allowed on occasion to participate in their own right in
international undertakings and granted practically the status of a sovereign
state. It is when acting in this capacity that they are considered international
persons
MANDATES AND TRUST TERRITORIES
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Three kinds of trust territories:
1. Those held under mandate under the League of Nations
2. Those territories detached from the defeated states after World War II
3. Those voluntarily placed under the system by the states responsible for their
administration
BELLIGERENT COMMUNITIES
• For purposes of the conflict that has widened and aggravated, and pending
determination of whether or not the belligerent community should be fully
recognized as a state, it is treated as an international person and becomes
directly subject to the laws of war and neutrality
• As such “inchoative state,” it is vested with full rights of visitation, seach and
seizure of contraband articles on the high seas, blockade and the like, and
is held directly responsible for its unlawful acts
INTERNATIONAL ADMINISTRATIVE BODIES
• Certain administrative bodies created by agreement among states may be
vested with international personality when these two conditions concur:
o That their purpose are mainly non-political
o They are autonomous
INDIVIDUALS
CHAPTER 4: UNITED NATIONS
UNITED NATIONS – after World War II, it is a symbol of man’s undismayed
determination to establish for all nations to a rule of law that would forever banish the
terrible arbitrament of war in the solution of international disputes.
n After World War I (1914-1918)
• First concrete step: organization of the League of Nations
• Inherently weak coupled with the fact that US was not a member; impaired
effectiveness in maintenance of international peace which was finally
shattered in 1939
• League of Nations formally dissolved in 1946
n June 12, 1941
• Several members of the British Commonwealth and a number of
governments-in-exile agreed in the London Declaration “to work together,
and with other peoples, in war and in peace” toward economic and social
progress
n August 14, 1941
• President Franklin D. Roosevelt and Prime Minister Winston Churchill
signed the Atlantic Charter
n January 1, 1942
• Declaration by United Nations reaffirmed the purposes and principles
embodied in the Atlantic Charter, signed by 26 countries and later adhered
to by 21 others
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• Signatories all pledged to employ their full resources against the Axis Power
and not to make a “separate armistice or peace with the enemies”
n October 30, 1943
• First formal step towards the creation of UN
• Moscow Declaration signed by the representatives of China, the Soviet
Union, the UK and the US recognizing the necessity of establishing
international organization based on the principle of sovereign equality of all
states
n December 1943
• Teheran Conference where Roosevelt, Churchill and Stalin acknowledged
the supreme responsibility upon UN to make peace and banish terror of war
n August to October 1944
• Initial blueprint of UN known as the Dumbarton Oaks Proposal was
prepared at a conference in Washington by representatives of UK, USSR,
US and later China
• Security Council was conceived as the key body of the UN, with the
conferees and France as its permanent members
n February 11, 1945
• Voting rules of the organ were agreed upon by Roosevelt, Churchill and
Stalin in Yalta Conference in Crimea
n April 25 to June 26, 1945
• General conference at San Francisco for the preparation of the charter
• Filing of instruments of ratification by the members of the Big Five and
majority other signatories
• Result was the UN, a body possessed not only of juridical but also of
international personality
THE UNITED NATIONS CHARTER
• Lengthy document consisting of 111 articles besides the Preamble and the
concluding provisions
• Also includes the Statute of the ICJ which is annexed to it and made an
integral part of it
• May be considered a treaty as it derives binding force from the agreement
of the parties to it; may be considered a constitution as it provides for the
organization and operations of the different organs and adoption of any
change through a formal process of amendment
• Intended to apply not only to members but also to non-member states “so
far as may be necessary for the maintenance of international peace and
security”
• Article 103 – “in the event of conflict between the obligation of the Members
under the present charter and their obligation under any other international
agreement, their obligations under the present charter shall prevail”
• Amendments will be in force by a vote of 2/3 of the members of the
General Assembly and ratified in accordance with their respective
constitutional processes by 2/3 of the members of the UN, including all the
permanent members of the Security Council
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 • General conference may be called by majority vote of the General
Assembly and any 9 members of the Security Council for the purpose of
reviewing the Charter
o Amendments may be proposed by 2/3 vote of the conference and
shall take effect when ratified by 2/3 of the Members of the UN,
including the permanent members of the Security Council
THE PREAMBLE TO THE CHARTER
PREAMBLE – introduces the Charter and sets the common intentions that moved the
original members to achieve their common Purposes
PURPOSES
PURPOSES – constitutes the raison d’etre of the UN and are the aggregation of the
common ends, the cause and object of the Charter to which the member states
collectively and severall subscribe
Article 1 provides
1. To maintain international peace and security
2. To develop friendly relations among nations
3. To achieve international cooperation in solving international problems
4. To be a center for harmonizing the actions of nations in the attainment of
these common ends
PRINCIPLES
PRINCIPLES – deal with the methods and the regulating norms
Article 2 provides
1. The organization is based on the principle of the sovereign equality of all its
members
• Based on right of equality of states where all members of the
organization, regardless of size or influence, have the same
vote in the General Assembly
• Big Five has special rights
• Smaller states are not subjected to same financial
responsibilities
2. All members shall fulfill in good faith the obligations assumed
• Basis is pacta sunt servanda
• UN Charter partakes in the nature of a treaty
3. All members shall settle their international disputes by peaceful means
• The rule itself is a generally accepted principle of
international law
• Common amicable methods of settling: ICJ, Security Council,
General Assembly
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4. All members shall refrain in their international relations from the threat or
use of force
• Most important principle of UN
5. All members shall give UN ever assistance in any action it takes
6. The organization shall ensure non-member states act in accordance with
the Principles
• For the maintenance of international peace and security
7. Nothing in the present Charter shall authorize the UN to intervene in matters
which are essentially within the domestic jurisdiction
• “Domestic jurisdiction clause”
• In 1960, civil war in the Republic of Congo became an
international war between the socialist states and Western
democracies
MEMBERSHIP
Two kinds based only on manner of admission
§ Original – those participated in the UN Conference on International
Organization at San Francisco or having previously signed the Declaration
by the UN of January 1, 1942, signed and ratified the Carter of the UN
• Philippines, Lebanon, Syria – although not yet states at the
time
• Ukrain and Byelorussia – considered separate despite
forming part of Union of Soviet Socialist Republics
• 51 original members (one of them, Poland, was unable to
participate in te drafting of the Charter)
§ Elective – admitted by decision of the General Assembly upon the favorable
recommendation of the Security Council
1. It must be a state
• In favor of admission even “mini-states”
2. It must be peace loving
• Subjective standard that can lead to political rather
than legal decision
• Delayed admission of Thailand because of French
opposition to it for alleged invasion of Indo-China
• Russian objection to application of Ireland in not
helping the Allied Powers during World War II
3. It must accept the obligations of the Charter
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 • Only requires formal declaration from applicant
4. It must be able to carry out these obligations
• Switzerland, being a neutralized state, cannot
carry out obligation of preventive or enforcement
action
• Not strictly enforced
5. It must be willing to carry out these obligations
• Subjective standard
• Albania application opposed by failure to agree to
the referral of the Corfu Channel dispute to ICJ
• US blocked admission of Vietnam because of
alleged refusal to release American prisoners of
war
1. The organization was revealed to be unable to maintain
peace or could do so only at the expense of law and justice
2. The member’s right and obligations as such were changed
by a Charter amendment in which it had not concurred or
which it finds itself unable to accept
3. An amendment duly accepted by the necessary majority
either in the General Assembly or in a general conference is
not ratified
• Indonesia withdrew from UN in 1965 but resumed after the overthrow of
Sukarno
ORGANS OF THE UNITED NATIONS
1. General Assembly

GENERAL ASSEMBLY CANNOT ADMIT APPLICANT WITHOUT FAVORABLE • Most representative of the organs of the UN
RECOMMENDATION OF SECURITY COUNCIL • Consists of all members, each of which is entitled to send not
Article 4(2) provides: more than 5 representatives and 5 alternates as well as such
“The admission of any such State to membership in the UN will be effected by a technical stuff it may need
rd
decision of the General Assembly upon the recommendation of the Security Council.” • Meets in regular annual session beginning on 3 Tuesday of
September or in special session at the call of a majority of its
SUSPENSION OF MEMBERS members or at the request of the Security Council
• Each member has one vote
• Effected by 2/3 votes of those present and voting in the General Assembly • 2/3 of those present and voting
upon the favorable recommendation of at least 9 members of the Security § International peace and security
Council, including all its permanent members § Election of members of the Councils
• May be lifted alone by the Security Council, also by a qualified majority vote § Admission
• Prevent member from participating in the meetings or from being elected to § Suspension
or continuing to serve in councils § Expulsion
• Nationals of suspended members may continue serving the Secretariat and § Trusteeship system questions
ICJ as they are regarded as international officials or civil servants acting for § Budgetary matters
the organization itself • Majority of those present and voting
• Suspension affects only rights and privileges; member still subject to § All other matters including determination whether a
discharge obligations question is important or not
• Functions are:
EXPULSION OF MEMBERS 1. Deliberative – initiating studies, making
recommendations and measures
• Effected by 2/3 votes of those present and voting in the General Assembly 2. Supervisory – receiving and considering annual and
upon the recommendation of the Security Council by a qualified majority special reports from other organs
vote 3. Financial – approval of budget, apportionment of
• Aim is to provide stronger penalty expenses
4. Elective – election of nonpermanent members of
WITHDRAWAL OF MEMBERS councils
5. Constituent – admission of members and amendment
• No provision of Charter
• San Francisco Conference approved a special committee report where a
member might withdraw from UN if: 2. Security Council

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 • Key organ of the UN in maintenance of international peace and
security
• Five permanent members (Big Five) – in view of prestige and
power, would be called upon to provide the leadership and
physical force to maintain peace
1. China
2. France
3. UK
4. Russia
5. US
• Ten elective members for two-year terms by the General
Assembly – provided in amendment to the Charter adopted in
1965 recognizing the relative importance of areas affected in the
maintenance of international order
§ 5 African and Asian states
§ 2 Latin American states
§ 2 Western European and other states
§ 1 Eastern European states
• Non-permanent members are not eligible for immediate re-
election
• Staggering of terms so that one-half of them now retire and are
replaced every year
• All its members shall be represented at all times at the seat of the
Organization
• Chairmanship is rotated every calendar month on the basis of the
English alphabetical order of the names of the members
• Voting is governed by Yalta formula as devised at the Crimea
Conference and subsequently incorporated in Article 27 of the
Charter
§ Each member shall have one cote
§ Distinction is made between the Big Five and the non-
permanent members in resolution of substantive
questions
§ Procedural matters are to be decided by the affirmative
vote of any 9 or more members
o Questions relating to organization and
meeting of the Security Council
o Establishment of subsidiary organs
o Participation of states parties to a dispute in
the discussions of the organ
§ Non-procedural matters requires concurrence of at
least 9 members but including all the permanent
members
o Measures of enforcement
o Characterization of a question
§ A permanent member may cast a “veto” to prevent
agreement on non-procedural question even if it is
supported by all the other members
§ A permanent member may also exercise “double veto”
to disapprove any proposal to consider a question
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merely procedural and thereafter vote against the
question itself on the merits
§ Abstention or absence of any permanent member vote
on non-procedural question is not considered a veto,
and proposal is deemed adopted if approved by at least
9 members of the Security Council including the rest of
the permanent members
§ No member, permanent or not, is allowed to vote on
questions concerning the pacific settlement of a dispute
to which it is a party
• Purpose of Yalta formula is to ensure the unity of permanent
members in the measures to be taken
• May take steps for the pacific settlement of disputes or even
preventive or enforcement of action
§ Limitation: dispute must be international, unless parties
submit
• Approves trusteeship agreements in strategic areas and performs
a number of important voting and constituent functions, such as
§ Admission and discipline of members of UN
§ Election of judges in ICJ and the Secretary-General
§ Amendment of the Charter
3. Economic and Social Council
• Originally consisted of only 18 members
• Enlarged to 27 by amendments adopted in 1965
• Further expanded to 54 by amendments adopted in 1971
• All members are elected by the General Assembly for 3-year
terms and may be re-elected immediately
• Staggered terms for replacement or re-election of 1/3 of the body
every year
• Meets in regular sessions as required in its rules
• Meets in special sessions at the request of a majority of its
members
• Each members has one vote
• Decisions are reached by majority of those present and voting
• Members of UN and representatives of specialized agencies may
participate, without vote, in the deliberations of the council
• Exert efforts towards
1. Higher standards of living, full employment, and
conditions of economic and social progress and
development
2. Solutions of international economic, social, health and
related problems, and international, cultural and
educational cooperation
3. Universal respect for, and observance of, human rights
and fundamental freedoms for all without distinction as
to race, sex, language or religion
• Assisted by subsidiary organs like
AMB Notes 2017 | Page 8 of 54
 1.Commission on the Status of Women
2.Regional economic commissions for Europe, Asia and
the Far East and Latin America
• 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
4. Trusteeship Council
• Organ charged with the duty of assisting the Security Council and
the General Assembly in the administration of the international
trusteeship system
• Composed of
1. Members of the UN administering trust territories
2. Permanent members of the Security Council not
administering trust territories
3. Many other members elected for 3-year terms by the
General Assembly as may be necessary to ensure the
total number of members of the Trusteeship Council is
equally divided between those Members of the UN
which administer trust territories and those which do not
• Meets in regular sessions as required in its rules
• Meets in special sessions at request of a majority of its members
• Each member has one vote
• Decisions are reached by a majority of those present and voting
• For purposes of supervising the administration of the trust
territories, it may:
1. Consider reports submitted by the administering
authorities
2. Accept petitions and examine them in consultation with
the administering authorities
3. Provide for periodic visits to the trust territories at times
agreed upon with the administering authorities
4. Take such other actions in conformity with the terms of
the questionnaire on the political, economic, social and
education advancement of the inhabitants of the trust
territories
• Largely become obsolete with the conversion of practically all
trust territories into full-fledged miniature states
5. International Court of Justice
• Judicial organ of the UN
• All members of UN are ipso facto parties to the Statute
• A non-member may be a party on conditions to be determined in
each case by the General Assembly upon the recommendation of
the Security Council
• Court is composed of 15 members elected by absolute majority
vote in the General Assembly and the Security Council
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• No two judges may be nationals of the same state
• If more than one national of the same state obtain required
majorities, only the eldest shall be considered elected
• Members have a term of 9 years and may be re-elected
• Staggered to provide election of 1/3 of the membership at 3-year
interval
• No judge can be removed unless, in the unanimous opinion of the
other members, he has ceased to fulfill the required conditions
• Shall elect its President and Vice President, serving 3 years and
may be re-elected
• Remain permanently in session, at the Hague or elsewhere,
except during judicial vacations
• May meet either en banc, or in chambers composed of 3 or more
judges, to deal with particular categories of cases
• All questions are decided by majority of the judges present
• Quorum being 9 when the full Court is sitting
• Functions are to
1. Decide contentious cases
o Only states, including non-members of
UN may be parties
o Jurisdiction of the Court is based on the
consent of the parties as manifested
under the “optional jurisdiction clause” in
Article 36
2. To render advisory opinions
o May be given upon request of the
General Assembly or the Security
Council, as well as other organs of the
UN when authorized by the General
Assembly on legal questions
6. Secretariat
• Chief administrative organ of the UN
• Headed by the Secretary-General chosen by the General
Assembly upon recommendation of the Security Council
o Term is fixed at 5 years and may be re-elected
o Highest representative of the UN and authorized to act
on its behalf
o When acting in capacity, entitled to full diplomatic
immunities and privileges which only the Security
Council may waive
o Immunities and privileges of other key-officials of the
UN may be waived by the Sec-Gen
o Has the duty to bring to the attention of the Security
Council any matter which in his opinion may threaten
international peace and security
o Acts as secretary in all the meetings of the General
Assembly, etc
AMB Notes 2017 | Page 9 of 54
 o Prepares the budget of the UN for submission to the • Poland revived as a separate state by agreement of the
General Assembly victorious powers after World War II
o Provides technical facilities to the different organs
o Coordinates vast administrative machinery 6. Attainment of civilization
o Sec-Gen and the members of his staff are international • Japan
officers solely responsible to the organization and are
prohibited from seeking or receiving instructions from
any government or any other authority external to the THE PRINCIPLE OF STATE CONTINUITY
UN
PRINCIPLE OF STATE CONTINUITY – from the moment of its creation, the state
SUBSIDIARY ORGANS – those created by or in accordance with the Charter continues as a juristic being notwithstanding changes in its circumstances, provided
1. Military Staff Committee only that they do not result in loss of any of its essential elements
2. International Law Commission
3. Commission on Human Rights Fenwick: “Once its identity as an international person has been fixed and its position in
the international community established, the state continues to be the same corporate
Specialized agencies not part of UN but brought in close contact due to their purposes person whatever changes may take place in its international operation and
and functions: government.”
1. World Health Organization
2. International Monetary Fund Sapphire Case
3. Technical Assistance Board Facts: Louis Napoleon, Emperor of France, filed in California court a civil claim for
damages in connection with a collision between the French vessel Euryale and the
CHAPTER 5: THE CONCEPT OF THE STATE Sapphire but was subsequently deposed while the case was pending.
Issue: Whether or not the suit has become abated by the recent deposition of the
CREATION OF THE STATE Emperor Napoleon.

The generally accepted methods by which the status of a state is acquired are: Held by US SC: No. The reigning sovereign represents the national sovereignty, and
the sovereignty is continuous and perpetual, residing in the proper successors of the
1. Revolution sovereign for the time being.
• United States was created as a result of the revolution
against British rule of the 13 original colonies that first EXTINCTION OF THE STATE
formed a confederation in 1781 and then a federation in
1789 EXTINCTION OF THE STATE – a state may die in a legal sense by a radical
impairment or actual loss of one or more of the essential elements of the state that will
2. Unification result to extinction
• Italy grew out of the unification of the independent city states • Population completely wiped out by epidemic, explosion or emigrate en
of Sardinia, Florence, Naples, Rome and others in 1879 masse
under the so-called “principle of nationalities” • Government overthrown without replacement resulting in anarchy
• Merging with another state or its territory dismembered or annexed by
3. Secession others
• Bangladesh became a separate state when it seceded from • If a federation, may be broken up or dissolved by withdrawal of all its
Pakistan in 1971 members
• Dependent states deprived of freedom to direct its external affairs a partial
4. Assertion of independence loss of its international personality
• Philippines became a state by assertion of its independence
following the formal withdrawal therefrom of American SUCCESSION OF STATES
sovereignty in 1946
STATE SUCCESSION – takes place when one state assumes the rights and some of
5. Agreement the obligations of another because of certain changes in the condition of the latter
• Kingdom of Netherlands was created by the Congress of
Vienna of 1815 Succession may either be:

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 1. Universal – the international personality of the former state is absorbed by
the successor
a. When a state is annexed to another state or
b. Totally dismembered or
c. Merges with another state to form a new state
2. Partial
a. When a portion of the territory of a state secedes or is ceded to
another or
b. When an independent state becomes a protectorate or a
suzerainty or
c. When a dependent state acquires full sovereignty
CONSEQUENCES OF STATE SUCCESSION
1. The allegiance of the inhabitants of the predecessor state in the territory
affected is transferred to the successor state
• Usually they are also naturalized en masse
• Philippines: Filipino citizenship was conferred on the
inhabitants in the general of the Philippine Islands under the
provisions of the treaty of cession between Spain and the US
2. The political laws of the former sovereign are automatically abrogated and
may be restored only by a positive act on the part of the new sovereign
• But non-political laws, such as those dealing with familial
relations, are deemed continued unless they are changed by
the new sovereign or are contrary to the institutions of the
successor state
3. Treaties of a political and even commercial nature, as well as treaties of
extradition, are also discontinued, except those dealing with local rights and
duties, such as those establishing easements and servitudes
• Sometimes the successor state stipulates in appropriate
treaties or by formal proclamation the international
commitments it is willing to respect
4. All the rights of the predecessor state are inherited by the successor state
but this is not so where liabilities are concerned
• The successor state can determine which liabilities to
assume and which to reject solely on the basis of its own
discretion
• Article XVII, Section 1(3) of the 1935 Constitution: “ the debts
and liabilities of the Philippines, its provinces, cities and
municipalities which shall be valid and subsisting at the time
of the final and complete withdrawal of the sovereignty of the
US shall be assumed by the free and independent
government of the Philippines”
• The US did not assume the debts pertaining to the Philippine
Island at the time of its cession under the Treaty of Paris of
December 10, 1898
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People v. Perfecto
Facts: Defendant was prosecuted for having published an editorial against certain
members of the Senate in violation of Article 256 of the Spanish Penal Code punishing
defamation, abuse or insult of Minister of the Crown or other person in authority
Issue: Whether or not the article was still in force during the American regime.
Held: No. The Article was crowded out by implication as soon as the US established
its authority in the Philippine Islands as it is contrary to the genius and fundamental
principles of the American character and system of government.
SUCCESSION OF GOVERNMENTS
SUCCESION OF GOVERNMENTS – one government replaces another either
peacefully or by violent methods
• In both methods, the integrity of the state is not affected; the state continues
as the same international person except only that its lawful representative is
changed
• Questions of succession will involve only the former and subsequent
governments and third parties which may be affected by their relations
• Rights of the predecessor government are inherited in too by the successor
government
• Obligations of the predecessor government will be distinguished according
to the manner of the establishment of the new government
o If new government is organized by virtue of constitutional reform
duly ratified in a plebiscite – obligations of the replaced
government are also completely assumed by the former
o If new government is established through violence (like revolution)
– it may lawfully reject the purely personal or political obligations
of the predecessor government but not those contracted by it in
the ordinary course of official business
§ Cost of arms for use against rebels cannot be charged
against new government
§ Payment of postal money orders will be charged
against new government
CHAPTER 6: RECOGNITION
Majority theory: recognition is merely declaratory and only affirms the pre-existing
fact that the entity being recognized already possesses the status of an international
person; it is highly political and discretionary
Minority view: recognition is constitutive, meaning it is the last indispensable element
that converts or constitutes the entity being recognized into an international person; it
is mandatory and legal and may be demanded as a matter of right by any entity that
can establish its possession of the four essential elements of a state
Recognition may be extended by:
AMB Notes 2017 | Page 11 of 54
 • Individual states a bipartite treaty dealing comprehensively with their relations in general, or
• By a number of them together acknowledging its flag or otherwise entering into formal relations with it
• In case of belligerent community, it is implied when the
Philippines legitimate government blockades a port held by the former or
• It is the President who determines the question of recognition when other states observe neutrality in the conflict
• His decision on this mater is considered act of the state which is not subject
to judicial review The act constituting recognition shall give a clear indication of an intention:
• This authority is derived from his 1. To treat with the new state as such
o Treaty-making power 2. To accept the new government as having authority to represent the state it
o Power to send and receive diplomatic representatives purports to govern and maintain diplomatic relations with it
o Military power 3. To recognize in the case of insurgents that they are entitled to exercise
o Right in general to act as the foreign policy spokesman of the belligerent rights
nation
§ Exercise of these powers are essentially discretionary, RECOGNITION OF STATES
thus may not be compelled
RECOGNITION OF STATES – the free act by which one or more states acknowledge
OBJECTS OF RECOGNITION the existence on a definite territory of a human society politically organized,
independent of any existing state, and capable of observing the obligations of
Recognition may be extended to: international law, and by which the manifest therefore their intention to consider it a
1. State member of the international community
• Generally held to be irrevocable and imports the recognition
of its government • Through peaceful means
o Norway and Sweden upon formal separation in
2. Government 1905
• May be withdrawn and does not necessarily signify the o Egypt in 1922 upon declaration of independence
existence of a state as the government may be that of a from Great Britain
mere colony o Philippines upon withdrawal of American
sovereignty in 1946
3. Belligerent community • Not through peaceful means
• Does not produce the same effect as that of the former two o Recognition of France to US in 1778 was resented
because the rebels are accorded international personality by Great Britain which shortly declared war against
only in connection with the hostilities they are waging the French
o Recognition of US to Brazil in 1822 resulted to
KINDS OF RECOGNITION Portugal, the parent state, evidently losing interest
in its former colony
1. Express
• Verbal RECOGNITION OF GOVERNMENTS
o Israel and its provisional government were
recognized by the US in a statement released to RECOGNITION OF GOVERNMENTS – free act by which one or several states
the press by President Harry Truman on May 14, acknowledge that a person or a group of persons is capable of binding the state which
1948 they claim to represent and witness their intention to enter into relations with them
• Writing
o Communist government of Russia was recognized • Usually decided mainly on the basis of political considerations
by Italy in a treaty concluded between the two • Premature recognition may lead to international misunderstanding if the new
countries in 1924 government has been established through violent methods
o Poland was extended American recognition by a
simple telegram after World War I Three kinds of de facto government:
1. Established by the inhabitants who rise in revolt against and depose the
2. Implied – recognizing state enters into official intercourse with the new legitimate regime
member by exchanging diplomatic representatives with it, concluding with it

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 • Commonwealth established by Oliver Cromwell which
supplanted the monarchy under Charles I of England
2. Established in the course of war by the invading forces of one belligerent in
the territory of the other belligerent, the government of which is also
displaced
• Japanese occupation government in the Philippines which
replaced the Commonwealth government during World War
II
3. Established by the inhabitants of a state who secede therefrom without
overthrowing its government
• The Confederate government during the American civil war
which, however, did not seek to depose the Union
government
TOBAR OR WILSON PRINCIPLE – recognition shall not be extended to any
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 government
• Expressed in a treaty of the Central American Republics in
1907 at the suggestion of Foreign Minister Tobar of Ecuador
and reiterated in 1913 by President Woodrow Wilson of the
US
STIMSON PRINCIPLE – it is incumbent upon the members of the League of Nations
not to recognize any situation, treaty or agreement which may be brought about by
means contrary to the Covenant of the League of Nations or to the Pact of Paris
• Formulated by US Secretary of State Stimson, and
subsequently adopted by the League of Nations in a
resolution
• Applied against governments established as a result of
external aggression
ESTRADA DOCTRINE – the government will, as it saw fit, continue or terminate its
relations with any country in which a political upheaval had taken place “and in so
doing it does not pronounce judgment, either precipitately or a posteriori, regarding the
right of foreign nations to accept, maintain or replace their governments or authorities”
• Applied disclaiming the right of foreign states to rule upon
the legitimacy of the government to another state
• Doctrine by Minister Genaro Estrada of Mexico in 1930
Practice of most states now: extend recognition only if it is shown that it has control of
the administrative machinery of the state with popular acquiescence and that it is
willing to comply with its international obligations
CRITERIA FOR RECOGNITION OF NEW GOVERNMENT (usually as de jure):
4. Objective test – the government must be able to maintain order within the
state and to repel external aggression
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5. Subjective test – employed for the purpose of justifying the withholding of
recognition from a government that is politically unacceptable
Presumption when there is no indication of the kind of recognition: de jure
Recognition de jure Recognition de facto
Relatively permanent Provisional
Vests title in the government to its Does not
properties abroad
Brings about full diplomatic relations Limited to certain juridical relations
EFFECTS OF RECOGNITION OF STATES AND GOVERNMENTS
1. Full diplomatic relations are established except where the government
recognized is de facto
2. The recognized state or government acquires the right to sue in the courts
of the recognizing state
Russian Socialist Federated Soviet Republic v Cibrario
Facts: Plaintiff filed suit in an American court for fraud and breach of a contract it had
entered into with the defendant
Issue: Whether or not such government’s right to sue is a matter of right.
Held: No. Its power to do so is the creature of comity. Until such government is
recognized by the US, no such comity exists. Recognition, and consequently, the
existence of comity, is purely for the determination of the legislative or executive
department of the government. Who is the sovereign of a territory is a political
question.
Banco Nacional de Cuba v. Sabatino
Held: Mere breach of diplomatic relations does not have the effect of withdrawing the
right to sue. Severance may take place for any number of political reasons, its
duration is unpredictable, and whatever expression of animosity it may imply does not
approach that implicit in a declaration of war
NON-SUABILITY OF FOREIGN STATE IS NOT AN EFFECT OF RECOGNITION
• This attribute can be claimed whether or not it has been recognized by the
local state
• Doctrine of state immunity: to cite “a foreign sovereign in the municipal
courts of another state” would be “an insult which he is entitled to resent”
and would certainly “vex the peace of nations”
3. The recognized state or government has a right 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 form passing upon their legality in its own
courts
AMB Notes 2017 | Page 13 of 54
 4. Right of property and jurisdiction
Oetjen v Central Leather Co. 5. Right of legation or diplomatic intercourse
Held: 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 Right of existence and self-defense
which it is established, such recognition is retroactive in effect and validates all the • Most important right
actions and conduct of the government so recognized from the commencement of its • Most comprehensive because all other rights are to be derived from it
existence. • As an inherent right, such measures under the virtue of tis right does not
depends for its validity on the previous recognition of the state asserting it or
RECOGNITION OF BELLIGERENCY on the consent of other states

Belligerency – exists when inhabitants of a state rise up in arms for the purpose of REQUISITES OF RIGHT
overthrowing the legitimate government
Article 51 of the UN Charter provides:
Belligerency Insurgency “Nothing in the present Charter shall impair the inherent right of individual or collective
Serious and widespread Initial state of belligerency self-defence if an armed attack occurs against a Member of the United Nations, until
Under a civil government Directed by military authorities the Security Council has taken measures necessary to maintain international peace
There are settled rules regarding Usually not recognized and security. xxx”
recognition of belligerency
1. Armed attack
CONDITIONS TO EXTEND RECOGNITION TO BELLIGERENT COMMUNITIES • A necessity of self-defense instant, overwhelming and
1. There must be an organized civil government directing the rebel forces leaving no choice of means and no moment for deliberation
2. The rebels must occupy a substantial portion of the territory of the state • Mere apprehended danger or any direct threat to the state
3. The conflict between the legitimate government and the rebels must be does not, by itself alone, warrant employment of any force
serious, making the outcome uncertain •
4. The rebels must be willing and able to observe the laws of war 2. Self-defense action taken by the attacked state must be reported
immediately to the Security Council
CONSEQUENCES OF RECOGNITION OF BELLIGERENCY 3. Such action shall not in any way affect the right of the Security Council to
take at any time action as it deems necessary to maintain or restore
1. Upon recognition by the parent state, the belligerent community is international peace and security
considered a separate state for purposes of the conflict it is waging against
the legitimate government • Right may be resorted to only upon clear showing of a grave and actual
2. Relations between parent and belligerent during the hostilities shall be danger to the security of the state and the self-defensive measures must be
governed by the laws of war and relations with other states shall be subject “limited by the necessity and kept clearly within it”
to the laws of neutrality
3. Both belligerents may exercise the right of visit and search upon neutral THE CUBAN MISSILE CRISIS
merchant vessels
4. The rebel government, equally with the legitimate, shall be entitled to full REGIONAL ARRANGEMENTS
war status as regards all other states and may establish blockades,
maintain prize courts and take other allowable war measures • Collective self-defense is impliedly recognized in Article VIII on Regional
Arrangements. Section 1, Article 52 provides:
• It is only when the recognition is made by the parents state “Nothing in the present Charter precludes the existence of regional
that the effects thereof become general and legally arrangements or agencies for dealing with such matters relating to the
applicable to other states. maintenance of international peace and security as are appropriate for
regional action provided that such arrangements or agencies and their
CHAPTER 7: RIGHT OF EXISTENCE AND SELF-DEFENSE activities are consistent with the Purposes and Principles of the United
Nations.”
FUNDAMENTAL RIGHTS OF A STATE
1. Right of existence and self-defense THE BALANCE OF POWER
2. Right of sovereignty and independence
3. Right of equality

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 • Purpose is to provide balance of power, which Vattel described as “an
arrangement of affairs so that no state shall be in a position to have
absolute mastery and dominion over others.”
AGGRESSION
• Use of armed force by a State against the sovereignty, territorial integrity or
political independence of another State, or in any other manner inconsistent
with the Charter of the United Nations, as set out in this Definition [Definition
of Aggression adopted by the UN General Assembly on December 14,
1974]
CHAPTER 8: THE RIGHT OF INDEPENDENCE
Sovereignty
• The supreme power of the State to command and enforce obedience, the
power to which, legally speaking, all interests are practically subject and all
wills subordinate
• The attribute that enables the state to make its own decision vis-à-vis other
states and vests it with competence to enter into relations and agreements
with them
Two aspects of sovereignty
1. Internal – refers to the power of the state to direct its domestic affairs, as
when it establishes its government, enacts laws for observance within its
territory, or adopts economic policies
2. External – more often referred as independence; it signifies the freedom of
the state to control its own foreign affairs, as when it concludes treaties,
makes war or peace, and maintains diplomatic and commercial relations
IDEAL OF INDEPENDENCE
NATURE OF INDEPENDENCE
Independence cannot be regarded as importing absolute freedom, for the simple
reason, as Fenwick states, that it only means freedom from control by any other state
or group of states and not freedom from the restrictions that are binding on all states
forming the family of nations
Principle of mare liberum or freedom of the seas” – that the sea was international
territory and all nations were free to use it for seafaring trade
INTERVENTION
Intervention – an act by which a state interferes with the domestic or foreign affairs of
another state or states through the employment of force or threat of force
• By necessary implication, the right of independence carries with it the
correlative duty of non-intervention
• Not sanctioned in international relations except only when it is exercised as
an act of self-defense or when it is decreed by the Security Council as a
Based on the book International Law by Cruz (2003 Edition) | This material has not been proofread.
preventive or enforcement action for the maintenance of international peace
and security
Grounds for intervention
1. When it is justified as a measure of self-defense by the State
2. As a measure of legitimate reprisal
3. When it takes place under a treaty giving such right to the intervening State
4. When it is done for humanitarian reasons
THE DRAGO DOCTRINE
Drago Doctrine – embodied in the Hague Convention of 1907 through the provision
that “the Contracting Powers agree not to have recourse 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.”
• Later dissipated by the Porter Resolution, under which intervention was
permitted if the debtor state refused an offer to arbitrate the creditor’s claim,
or having agreed to arbitrate, prevented agreement on the compromise, or
having agreed thereto, refused to abide by the award of the arbitrator
CHAPTER 9: THE RIGHT OF EQUALITY
Principle of equality – all the rights of a state, regardless of their number, must be
observed and respected by the international community in the same manner that the
rights of other states are observed and respected. In short, all states, big or small, the
powerful as well as the weak, have an equal right to the enjoyment of all their
respective attributes as members of the family of nations
Par in parem non habet imperium – even the strongest state cannot assume
jurisdiction over another state, no matter how weak, or question the validity of its acts
in so far as they are made to take effect within its own territory
CHAPTER 10: TERRITORY
Territory – fixed portion of the surface of the earth inhabited by the people of the state
ACQUISITION OF TERRITORY
1. Discovery and Occupation
• Original mode of acquisition by which territory not belonging to
any state, or terra nullius, is placed under the sovereignty of the
discovering state
• The territory need not be uninhabited provided it can be
established that the natives are not sufficiently civilized and can
be considered as possessing not rights of sovereignty but only
rights of habitation
• Res communes are those not susceptible to discovery and
occupation like the open seas and outer space
Requisites:
AMB Notes 2017 | Page 15 of 54
 a. Possession
• Must be claimed on behalf of the state represented
by the discoverer and may be effected through a
formal proclamation and the symbolic act of raising
the national flag in the territory
• Mere possession will not suffice, as only an
inchoate title of discovery is acquired pending the
second requisite
• Inchoate title of discovery – performs the function
of barring other states from entering the territory
until the lapse of a reasonable period within which
the discovering state may establish a settlement
thereon and commence to administer it
o If claimant state begins exercising
sovereign rights over the territory, the
inchoate title ripens and is perfected into
a full title
o Otherwise, the inchoate title will be
extinguished and the territory will
become res nullius again
4. Subjugation
• Acquisition of territory when, having previously conquered or
occupied in the course of war by the enemy, it is formally annexed
to it at the end of that war
• Conquest alone confers only an inchoate right on the occupying
state; it is the formal act of annexation that completes the
acquisition
5. Accretion
• Mode of acquiring based on the principle of accessio cedat
principali
• Accomplished through both natural or artificial processes, like
o The gradual and imperceptible deposit of soil on the
coasts of the country through the action of the water
o Reclamation projects
o Formation of islands, which, if occurring within the
maritime belt of the state, correspondingly extended the
breadth of its territorial sea
LOSS OF TERRITORY

Island of Palmas Case: Discovery alone, without any subsequent act, 1. Abandonment or dereliction
cannot at the present time suffice to prove sovereignty over the territory. An • When the state exercising sovereignty over it physically withdraws
inchoate title could not prevail over the continuous and peaceful display of from it with the intention of abandoning it altogether
authority by another state for such display may prevail even over a prior,
definitive title put forward by another state Requisites:
a. Act of withdrawal
Clipperton Island Case: If a territory, by virtue of the fact that it was b. Intention to abandon
completely uninhabited, is, from the first moment when the occupying state
makes its appearance there, at the absolute and undisputed possession of 2. Cession
that state, from that moment the taking of possession is considered 3. Subjugation
accomplished and the occupation is formally completed 4. Prescription
5. Erosion
b. Administration 6. Revolution
7. Natural causes
2. Prescription
• Requires long, continued and adverse possession to vest COMPONENTS OF TERRITORY
acquisitive title in the claimant
• No rule in international law yet fixing the period of possession 1. Terrestrial domain
necessary to transfer title • Refers to the land mass, which may be integrated or
dismembered, or partly bounded by water, or consists of one
3. Cession whole island
• Method by which territory is transferred form one state to another • Mid-ocean archipelagoes are composed of several islands as
by agreement between them distinguished from coastal archipelagoes
• Usually effected by familiar transactions such as sale, donation,
barter or exchange, and even by testamentary disposition 2. Maritime and fluvial domain
• Essentially consensual, transfer of title is effected upon the • Consists of the bodies of water within the land mass and the
meeting of the minds of the parties and does not have to bide the waters adjacent to the coasts of the state up to a specified limit
actual delivery of the ceded territory to the acquiring state

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 • Includes internal waters in land-locked lakes, the rivers and man-
made canals within the land mass, and in certain bays, gulfs and
straits, as well as the external waters in the territorial sea
o Rivers
§ National river – situated completely in the
territory of one state
§ Multi-national river – flow through the
territories of several states
§ International river – navigable from the open
sea and is open to the use of vessel from all
states
§ Boundary river – divides the territories of
riparian states
• In absence of specific agreement
between states: boundary line is
laid on the river according to the
Thalweg Doctrine, that is, one the
center, not of the river itself, but of
its main channel
• Change of course by gradual or
normal process such as accretion
or erosion: the dividing line follows
the new course
• Change of course is violent and
abrupt as by avulsion: the
boundary line will continue to be
laid on the old bed of the river, in
the absence of a contrary
agreement
• Dividing line on a bridge across a
boundary river: the same is laid on
the middle of the bridge regardless
of the location of the channel
underneath, unless otherwise
provided by the riparian states
o Bays – well-marked indentation whose penetration is in
such proportion to the width of its mouth as to contain
land-locked waters and constitute more than a mere
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
§ If the distance between the low-water marks
of the natural entrance points of a bay does
not exceed twenty-four miles, a closing line
may be drawn between these two low-water
marks, and the waters enclosed thereby shall
be considered internal waters
Based on the book International Law by Cruz (2003 Edition) | This material has not been proofread.
• Such rule does not apply to historic
bays, whose waters have always
been considered internal by the
international community
notwithstanding that their openings
are more than twenty-four miles in
width
o Territorial sea – belt od waters adjacent to the coasts
of the state, excluding the internal waters in bays and
gulfs, over which the state claims sovereignty and
jurisdiction
§ Traditionally, the breadth of the territorial sea
was reckoned at three nautical miles, or a
marine league, from the low-water mark. This
rule was based on the range of the cannon at
the time it was first proposed by the Dutch
publicist Bynkershoek, on the theory that a
state could claim only so much territory as it
could defend
§ May states later extended their territorial seas,
so that no uniform rule could be regarded as
established
Convention of the Law of the Sea – signed in
Jamaica in 1982 by 119 of the 150 conferee-states and
became effective on November 16, 1994, after its
ratification by more than the required 60 of the
signatory states. It provides among others for a uniform
breadth of twelve miles for the territorial sea, a
contiguous zone of twelve miles from the outer limits of
the territorial sea, and an economic zone or patrimonial
sea extending two hundred miles from the low-water
mark of the coastal state
Philippine territorial sea – based on historic right or
title or, as it is often called, the Treaty Limits Theory
Archipelago Doctrine – 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 coast so 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
o Embodied in the 1982 Convention on the Law
of the Sea, with the modification that
archipelagic sealanes shall be designated
AMB Notes 2017 | Page 17 of 54
 over the internal waters through which foreign
vessels shall have the right of passage
Archipelago – 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
Methods of defining the territorial sea
a. Normal baseline method – the territorial sea is simply
drawn from the low-water mark of the coast, to the
breadth claimed, following its sinuosities and curvatures
but excluding the internal waters in bays and gulfs
b. Straight baseline method – straight lines are made to
connect appropriate points on the coast without
departing radically from its general direction. This
method may be employed in localities where the
coastline is deeply indented or if there is a fringe of
islands along the coast in the immediate vicinity.
Waters on the landward side of the baselines of the
territorial sea form part of the internal waters of the
state
3. Aerial domain
• The airspace above the terrestrial domain and the maritime and
fluvial domain of the state, to an unlimited altitude but not
including outer space
4. (Only for some states like PH) Continental shelf
CHAPTER 11: JURISDICTION
JURISDICTION – the authority exercised by a state over persons and things within or
sometimes outside its territory, subject to certain exceptions
Jurisdiction may be exercised by a state over:
1. Its nationals
2. The terrestrial domain
3. The maritime and fluvial domain
4. The continental shelf
5. The open seas
6. The aerial domain
7. Outer space
8. Other territories
PERSONAL JURISDICTION
Classification of jurisdiction:
Based on the book International Law by Cruz (2003 Edition) | This material has not been proofread.
1. PERSONAL – the power exercised by a state over its nationals
• 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 and he may not ordinarily be
excused form it unless he is prepared to renounce his own
nationality. At that, some states do not even allow this under the
doctrine of indelible allegiance
In the Philippines:
Article 15, CC: Laws relating to family rights and duties, or the status,
condition and legal capacity of persons, are binding upon citizens of
the Philippines, even though living abroad
Article 16, CC: Intestate and testamentary succession, both with
respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may be the
nature of the property and regardless of the country wherein said
property may be found
Sec. 21, Revised Internal Revenue Code: Jurisdiction to tax our
citizens, even if not residing in the Philippines, for income received
by them “from all sources”
[CASE] Joyce v. Director of Public Prosecution
Facts: Defendant Lord Haw Haw challenged his conviction in Great
Britain for high treason, contending that he was not a British subject.
It appeared that he had lived in the country for 18 years and had
misrepresented himself as its national for the purpose of obtaining a
British passport that enabled him to go to Germany, for which he
subsequently broadcast anti-Allied propaganda.
Ruling by the House of Lords: Although he was admittedly not a
British subject, he had nevertheless “by his own act maintained the
bond which while he was within the realm bound him to his
Sovereign.”
• An alien may be held subject to the laws of a state whose national
interest he has violated, and notwithstanding that the offense was
committed outside its territory.
o Article 2, RPC: punishes any person who, whether in or
outside our territory, should forge or counterfeit Philippine
currency, utter such spurious securities or commit any crime
against our national security or the law of nations
TERRITORIAL JURISDICTION
2. TERRITORIAL – jurisdiction over all persons and property within its territory
AMB Notes 2017 | Page 18 of 54

• [CASE] The Schooner Exchange v. McFaddon
Ruling: The jurisdiction of the nation within its own territory is
necessary, exclusive and absolute. It is susceptible of no limitation
not imposed by itself
• Personal jurisdiction antedated territorial jurisdiction but the latter is
more effective because it is asserted by the state over persons and
property within its immediate control and subject to its coercive
processes
• The state cannot exercise jurisdiction even within its own
territory over:
1. Foreign states, heads of states, diplomatic
representatives, and consuls to a certain degree
o Foreign states & heads of states: on sovereign
equality of states and on the theory that a contrary
rule would disturb the peace of nations
o Diplomats & consuls: to have full freedom in the
discharge of their official functions
2. Foreign state property, including embassies, consulates,
and public vessels engaged in non-commercial activities
o Public vessels are regarded as extensions of the
territory of the foreign state
3. Acts of state
o [CASE] UNDERHILL v. HERNANDEZ
Ruling: 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 vessel exercising the rights of
innocent passage or arrival under stress
o “Innocent passage” – navigation through the
territorial sea of a state for the purpose of traversing
that sea without entering the internal waters, or of
proceeding to internal waters, or making for the high
seas from internal waters, as long as it is not
prejudicial to the peace, good order or security of the
coastal state
o Arrival under stress or involuntary entrance may be
due to lack of provisions, unseaworthiness of the
Based on the book International Law by Cruz (2003 Edition) | This material has not been proofread.
vessel, inclement weather, or other cases of force
majeure, like pursuit by pirates
5. Foreign armies passing through or stationed in its territories
with its permission
o [CASE] The Schooner Exchange v. McFaddon
Ruling: 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 his force.
6. Such other persons or property, including organizations
like the UN, over which it may, by agreement, waive
jurisdiction
Examples of such agreements:
a. Convention on the Privileges and Immunities
of the UN
b. Convention on the Privileges and Immunities
of Specialized Agencies
c. RP-US Bases Treaty (which modified the
customary exemptions under no. 5 above)
LAND JURISDICTION
• Save in the foregoing cases, everything found within the terrestrial domain
of the state is under its jurisdiction. Nationals and aliens, including non-
residents, are bound by its laws, and no process from a foreign government
can take effect for or against them within the territory of the local state
without its permission.
• As against other states, the local state has exclusive title to all property
within its territory, which it may own in its own corporate capacity or regulate
when under private ownership through its police power or forcibly acquire
through the power of eminent domain. Such property is also subject to its
taxing power.
MARITIME AND FLUVIAL JURISDICTION
General rule: The internal waters of a state are assimilated to the land mass and
subjected to the same degree of jurisdiction exercised over the terrestrial domain. This
covers the so-called enclosed waters such as:
a. Land-locked lakes
AMB Notes 2017 | Page 19 of 54
 b. National rivers
c. Man-made canals
Public vessels wherever they may be
• Civil, criminal and administrative matters: jurisdiction is exercised by the flag
state over its public vessels wherever they may be, provided they are not
engaged in commerce
• [CASE] The Schooner Exchange v. McFaddon
Ruling: National ships of war entering the port of a friendly power open for
their reception are to be considered as exempted by the consent of that
power from its jurisdiction
Foreign merchant vessels docked in a local port or bay
• Civil matters: coastal state
• Criminal matters: jurisdiction is determined according to either
o English rule – the coastal state shall have jurisdiction over all
offenses committed on board such vessels, except only where
they do not compromise the peace of the port
o French rule – the flag state shall have jurisdiction over all offenses
committed on board such vessels, except only where they
compromise the peace of the port
It is evident that there is no substantial distinction between the
two rules inasmuch as, under either, offenses committed on board
the foreign merchant vessel shall be triable by the territorial
sovereign when they constitute a disturbance of its peace and all
other offenses shall be under the jurisdiction of the state whose
flag the vessel flies
• The real problem is in the determination of the nature or effects of the
offense by the coastal state for the purpose of ascertaining whether or not it
shall assume jurisdiction
o ANTONI CASE
Ruling by the Supreme Court of Mexico: The murder of a
Frenchman by another Frenchman on board a French merchant
vessel in a Mexican port did not disturb the peace of the port
o WINDENHUS CASE
Ruling by the US: The murder of a Belgian by another Belgian on
board a Belgian merchant steamer in the port of New Jersey was
of such a nature as “to disturb tranquility and public order on
shore or in the port”
o In the Philippines: Our own Supreme Court has held that the
English rule is applicable in this country. Thus, although mere
possession of opium aboard a foreign merchant vessel in transit
through our waters is not considered a breach of our public order,
smoking of the drug on board such vessel will produce pernicious
effects within our territory and is, therefore, triable by our courts
Over interior waters
Based on the book International Law by Cruz (2003 Edition) | This material has not been proofread.
• Jurisdiction of the state over its interior waters is more exclusive than that
which it exercises over its territorial waters, subject only to a few exceptions
• It is the right of the coastal state to enforce all its laws to the full extent in its
territorial waters and in proper cases to bar both public and merchant
foreign vessels from entering the same. It may even use force, if necessary,
to prevent any encroachment on its territorial integrity
[CASE] U.S.S. Pueblo Incident
Ruling: American vessel was seized and its crew interned by North Korea
for alleged infringement of its territorial waters
• 1982 Convention on the Law of the Sea: fixed uniform breadth for the
territorial sea at twelve miles from the low-water mark of the coast
• Under the archipelago doctrine espoused by the Philippines, “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.” As internal waters, they are subject to the exclusive jurisdiction
of the Philippines.
o However, although this claim has been substantially accepted in
the 1982 Convention on the Law of the Sea, it is provided
therein that archipelagic sealanes are to be laid on these waters
over which foreign ships will have the right of passage as if they
were open seas. Thus, a foreign vessel need not go around our
internal waters but may use these archipelagic sealanes in
negotiating the distance from one point of the open sea to
another
THE CONTIGUOUS ZONE
• Contiguous zone: under “protective jurisdiction” claimed by some states
besides extending the limits of their territorial sea beyond the traditional
three miles from the low-water mark
• This practice has been confirmed by the Convention on the Territorial Sea
and the Contiguous Zone, where it is provided that “in a zone of the high
seas contiguous to its territorial sea, the coastal state may exercise the
control necessary to:
a. Prevent infringement of its customs, fiscal, immigration or sanitary
regulations within its territory or territorial sea
b. Punish infringement of the above regulations within its territory or
territorial sea
• The contiguous zone may not, however, extend more than 12 miles from the
coast of the state (Art. 1, Convention on the Continental Shelf)
• The contiguous zone also extends 12 miles, but from the outer limits of the
territorial sea (under the 1982 Convention on Law of the Sea)
THE CONTINENTAL SHELF
The continental shelf refers to:
1. 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
AMB Notes 2017 | Page 20 of 54
 waters admits of the exploitation of the natural resources of the
said areas
2. To the seabed and subsoil of similar areas adjacent to the coasts
of islands
• The coastal state has the sovereign right to explore the continental shelf
and to exploit its natural resources and for this purpose it may erect on it
such installations and equipment as may be necessary. But this right shall
not affect the legal nature of the superjacent waters as open seas or of
the airspace above such waters and their use as such by other states shall
not be impaired or disturbed
• The coastal state is allowed to establish on the open seas immediately
above the installations a safety zone with a radius of 500 meters over
which it may exercise jurisdiction for the protection of its properties
underneath
• The above rights are exclusive in the sense that if the coastal state does
not explore the continental shelf or exploit its natural resources, no one may
undertake these activities or make a claim to the continental shelf without
the consent of the coastal state
THE PATRIMONIAL SEA
• Also called the exclusive economic zone, extends 200 nautical miles from
the coast or the baselines
• All living and non-living resources found therein belong exclusively to the
coastal state
• The concept of patrimonial sea was adopted in the Declaration of Santo
Domingo, by the Caribbean states, in 1972, the General Report of the
African States Regional Seminar on the Law of the Sea, held in Yaounde in
1972, and the Addis Ababa Declaration of 1973, adopted by the Council of
Ministers of the Organization of African Unity, and has also been formally
proposed by Kenya
• The patrimonial sea is now provided for in the recently ratified 1982
Convention on the Law of the Sea
THE OPEN SEAS
• Also called the high seas, are res communes and available to the use of all
states for purposes of
o Navigation
o Flying over them
o Laying submarine cables
o Fishing
• In times of war, hostilities may be waged on the open seas
• A state may exercise jurisdiction on the open seas in the following
instances:
1. Over its vessels
o Public vessel – the flag state has jurisdiction over it at all
times, whether they be in its own territory, in the territory
of other states or on the open seas
Based on the book International Law by Cruz (2003 Edition) | This material has not been proofread.
o Merchant vessel – the flag state has jurisdiction over it
only
§ When they are within its territory,
§ When jurisdiction is waived or cannot be exercised
by the territorial sovereign, or
§ When such vessels are on the open seas
• [CASE] THE LOTUS CASE
Facts: The Lotus (French) and Bozkourt (Turkish) vessels collided on the
Aegean Sea, outside territorial waters, resulting in the sinking of Bozkourt
and the death of several Turkish nationals. The Lotus docked at
Constantinople, where its officer of the watch at the time of the accident, a
French national, was convicted of manslaughter by the Turkish courts.
France protested on the ground, among others, that the matter was outside
the jurisdiction of Turkey as the collision had taken place on the open seas.
Ruling: 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
Bozkourt. These elements are legally entirely inseparable so much so that
their separation renders the offense nonexistent. Neither the exclusive
jurisdiction of each to the occurrences which took place on the respective
ships would appear calculated to satisfy the requirements of justice and
effectively to protect the interests of the two States. It is only natural that
each should be able to exercise jurisdiction and to do so in respect of the
incident as a whole. It is, therefore, a case of concurrent jurisdiction.
Note: Article 11 of the Convention on the High Seas, provides “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.”
2. Over pirates – enemies of all mankind
o May be captured on the open seas by the vessel of any
state, to whose territory they may be brought for trial
and punishment
o Where a pirate vessel attempts to escape into the
territorial waters of another state, the pursuing vessel
may continue the chase but is under obligation of
turning over the pirates, when captured, to the
authorities of the coastal state
o Piracy is committed for private ends, not political
motives. Hence, insurgents may not be treated as
pirates
3. In the exercise of the right of visit and search
o Under the laws of neutrality, the public vessels or
aircraft of a belligerent state may visit and search any
neutral merchant vessel on the open seas and capture
AMB Notes 2017 | Page 21 of 54
 it if it is found or suspected to be engaged or to have
engaged in activities favorable to the other belligerent
4. Under the doctrine of hot pursuit
o If an offense is committed by a foreign merchant vessel
within the territorial waters of the coastal state, its own
vessels may pursue the offending vessel into the open
sea and upon capture bring it back to its territory for
punishment
o To be lawful, the pursuit must be begun before the
offending vessel has left the territorial waters, or the
contiguous zone of the coastal state with respect to
violation of rights enforcible thereon
o The pursuit most be continuous or unabated; otherwise,
it will be deemed to have “cooled” and can no longer be
resumed
AERIAL JURISDICTION
• No traditional rules in international law regarding rights of subjacent state to
its aerial domain
• Conventional rules are also inconclusive
• Consensus appears that local state has jurisdiction over the airspace above
it to an unlimited height, or at the most up to where outer space begins
• Corollary, no foreign aircraft, civil or military, may pass through the aerial
domain of a state without its consent
• This principle justified the shooting down during the Eisenhower
administration of an American plane alleged to be flying at the time over
Russian airspace
• “Five air freedoms” (subject of varying degrees of recognition)
1. Freedom to fly across foreign territory without landing
2. Freedom to land for non-traffic purposes
3. Freedom to put down traffic originating in the state of the aircraft
4. Freedom to embark traffic destined for the state of the aircraft
5. Freedom to embark traffic destined for or to put down traffic
originating in a third state
• Under the Convention on Offenses and Certain Other Acts Committed on
Board Aircraft, concluded on September 14, 1963, it is the state of
registration of the aircraft that has jurisdiction over offenses and acts
committed on board while it is in flight or over the high seas or any other
area outside the territory of any state. No other state may exercise
jurisdiction over such aircraft except when
1. The offense has effect on the territory of such state
2. The offense has been committed by or against a national or
permanent resident of such state
3. The offense is against the security of such state
4. The offense consists of a breach of any rules or regulations
relation to the flight or maneuver of aircraft in force in such state
Based on the book International Law by Cruz (2003 Edition) | This material has not been proofread.
5. The exercise of jurisdiction is necessary to ensure the observance
of any obligation of such state under a multi-lateral international
agreement
OUTER SPACE
• Outer space, or the region beyond the earth’s atmosphere, is not subject to
the jurisdiction of any state
• Outer space, including the moon and other celestial bodies, shall be free for
exploration and use by all states without discrimination of any kind, on a
basis of equality and in accordance with international law
• It is not subject to national appropriation by claim of sovereignty, by means
of use or occupation or by any other means
• Astronauts shall be regarded as envoys of mankind
• A state launching an object into outer space shall retain jurisdiction and
control over such object, and over any personnel thereof, while in outer
space or on a celestial body
• The state shall also be internationally liable for any damage that may be
caused by such object to another state or to any person
OTHER TERRITORIES
A state may, by virtue of customary or conventional international law, extend its
jurisdiction beyond its territory and over territory not falling under its sovereignty. This
may be effected in the following ways:
1. Through assertion of its personal jurisdiction over its nationals abroad or
the exercise of its right to punish certain offenses committed outside its
territory against its national interests even if the offenders are nonresident
aliens
2. On the strength of its relations with other states or territories, as when it
establishes a colonial protectorate, or a condominium, or administers a trust
territory, or occupies enemy territory in time of war
3. As a consequence of the waiver of jurisdiction by the local state over
persons and things within its territory, illustrated by the foreign army
stationed therein which remains under the jurisdiction of the sending state or
by the exceptions to the English and French rules on criminal jurisdiction
over foreign merchant vessels
4. Through acquisition of extraterritorial rights
o Extraterritoriality – applies only to persons and is based on treaty
or convention; has become discredited because of the rise of
nationalism and the sovereign equality of states
o Exterritoriality – refers to the exemption of persons and property
from the local jurisdiction on the basis of international custom;
remains a respected principle of international law
5. Through the enjoyment of easements or servitudes, such as the
easement of innocent passage or the easement or arrival under stress
o [CASE] PORTUGUESE ENCLAVES CASE
Ruling by the ICJ: Portugal had a right of passage through Indian
territory in order to reach its own territory. This right was limited
“to the extent necessary for the exercise of Portuguese
AMB Notes 2017 | Page 22 of 54
 sovereignty over the Enclaves and subject to the regulation and
control of India, in respect of private persons, civil officials and
goods in general.
CHAPTER 12: THE RIGHT OF LEGATION
RIGHT OF LEGATION
• One of the most effective ways of facilitating and promoting intercourse
among states
• Being purely consensual, the maintenance of diplomatic relations is not a
demandable right on the part of either the sending or the receiving state
AGENTS OF DIPLOMATIC INTERCOURSE
Diplomatic relations are normally conducted through the
• Head of state
o May also appoint special diplomatic agents charged with specific
ceremonial or political duties
§ Envoys ceremonial – usually sent to attend state
functions like a coronation or a jubilee
§ Envoys political – may be commissioned to negotiate
with a particular state or to participate in an
international conference or congress. There is no need
to accredit them to the state where the sessions are
being held nor is it necessary that there be regular
diplomatic relations between that state and their own
• Foreign secretary or minister
• Members of the diplomatic service
THE HEAD OF STATE
• Be he a monarch or president, is regarded as the embodiment of or at least
represents the sovereignty of his state
• His person being regarded as sacrosanct, he has a right to special
protection not only for his physical safety but for the preservation of his
honor or reputation as well
• His quarters, archives, property and means of transportation are inviolate
under the principle of exterritoriality
• He is exempt from criminal and civil jurisdiction, except where he himself is
the plaintiff
• He is not subject to tax or to exchange or currency restrictions
• Ceremonial amenities are due him unless he is travelling incognito
• [CASE] MIGHELL v. SULTAN OF JOHORE
Facts: Suit was brought for breach of a promise to marry allegedly made by
the defendant who had represented himself as a private individual.
Ruling: Dismissed when he revealed his real identity as head of an
independent state.
• By contrast, a civil claim for money due the plaintiffs was allowed by the
French courts against former Queen Isabela of Spain, then living in Paris.
Based on the book International Law by Cruz (2003 Edition) | This material has not been proofread.
Jurisdiction was summoned because she had already been deposed at the
time and was no longer entitled to royal prerogatives
THE FOREIGN SECRETARY
• Generally entrusted with the conduct of external affairs
o Except on rare occasions when the matter under consideration is
of such significance or delicacy as to warrant no less than what is
known as “summit meeting” where the head of state personally
undertake the function of diplomatic negotiations
• The immediate representative of the head of state and directly under his
control under the municipal law of most states
• He can make binding declarations on behalf of his state on any matter
falling within is authority, such as questions relating to recognition of states
or governments and the settlement of international claims against the state
• The head of the foreign office and has direction of all ambassadors and
other diplomatic representatives of his government
DIPLOMATIC ENVOYS
• The practice of establishing permanent legations became general during the
th
17 century
• The heads of diplomatic missions are classified as follows by the
Convention on Diplomatic Relations, which was signed at Vienna in 1961:
1. Ambassadors or nuncios accredited to heads of state
2. Envoys, ministers or internuncios accredited to heads of state
3. Charges d’affaires accredited to ministers for foreign affairs
• The distinctions among the members of the diplomatic service are important
only in connection with matters of protocol or the grant of special
honors. In other respects, the various diplomatic agents enjoy substantially
the same prerogatives regardless of rank
THE DIPLOMATIC CORPS
• It is a body consisting of the different diplomatic representatives who have
been accredited to the same local or receiving state
• It is headed by a doyen du corps who, by tradition, is the oldest member
with the highest rank or, in Catholic countries, the Papal Nuncio
• In the Diplomatic Convention, however, it is provided that “heads of
missions shall take precedence in their respective classes in the order of the
date and time of taking up their functions”
• It is a loose organization without any corporate character, hence does not
possess any legal powers or attributes
• It is important in watching over diplomatic privileges and honors and has at
times acted officially in the protection of the rights of its members
APPOINTMENT OF ENVOYS
• The Diplomatic Convention provides that the class to which the heads of
their missions are to be assigned shall be agreed upon between the states
AMB Notes 2017 | Page 23 of 54
 concerned. Moreover, the sending state must make certain that the
agrement (or consent) of the receiving state has been given for the person it
proposes to accredit as head of the mission to that state
• The appointment of diplomats is not merely a matter of municipal law
because the receiving state is not obliged to accept any representative who
is persona non grata to it
o [EXAMPLE] an American minister was not received in Italy for
having previously protested in a speech the annexation of the
Papal States by Italy; and when next accredited to Austria he was
also rejected, this time because he was married in a civil
ceremony to a Jewess
• Agreation – the practice by means of which informal inquiries are
addressed to the receiving state regarding a proposed diplomatic
representative of the sending state
• Article 4 of the Diplomatic Convention provides that “the receiving state is
not obliged to give reasons for a refusal of agrement.”
• Under the Philippine Constitution, it is the President who is empowered to
appoint ambassadors, other public ministers and consuls, subject to the
consent of the Commission on Appointments. His discretion is exclusive
when it comes to receiving ambassadors and other public ministers duly
accredited to the government of the Philippines
COMMENCEMENT OF THE DIPLOMATIC MISSION
• Under Article 13 of the Diplomatic Convention, the head of the mission is
considered as having taken up his functions in the receiving state either
o When he has presented his credential
o When he has notified his arrival and a true copy of his credentials
has been presented to the foreign ministry of the receiving state
• The credentials of the diplomatic agent include chiefly
o The letter of credence or lettre de creance, by means of which he
is accredited to the receiving state with the request that full faith
and credit be given to his official acts on behalf of the sending
state
o Diplomatic passport
o Official instructions
o Cipher or code book for use in sending secret communications to
his government
• The reception of the envoy is not a mere ceremony. Unless the receiving
state had previously given its agrement to his appointment, the diplomatic
representative cannot claim the usual privileges and immunities of his office
until he is formally accepted
• [CASE] VITIANU CASE
Facts: One Vitianu was convicted of certain crimes in Switzerland despite
his assertion that he had been appointed economic counselor of the
Romanian legation there.
Ruling: Since he had never been accepted as such by the Swiss
government, he could not claim diplomatic immunity.
DIPLOMATIC FUNCTIONS
Based on the book International Law by Cruz (2003 Edition) | This material has not been proofread.
The functions of a diplomatic mission consist inter alia in:
1. Representing the sending state in the receiving state
2. Protecting in the receiving state the interests of the sending state and its
nationals
3. Negotiating with the government of the receiving state
4. Ascertaining by all lawful means conditions and developments in the
receiving state and reporting thereon to the government of the sending state
5. Promoting friendly relations between the sending and receiving states and
developing their economic, cultural and scientific relations
• May also perform consular functions in the absence of a consular mission
from the sending state
• On request or by agreement, it may also represent friendly governments, as
when the US undertook the diplomatic representation of the Philippine
Republic while we were still in the process of organizing our own foreign
service
CONDUCT OF DIPLOMATIC MISSION
• Must exercise the utmost discretion and tact, taking care always to preserve
the goodwill of the sending state and to avoid interference with its internal
affairs
• Not justified in pitting or aiding one political party against another, or publicly
criticizing the policies or acts of the receiving state, or employing threatening
or offensive language or methods in the protection of the interests of his
state or its nationals
• His mission is under no circumstance to be used for espionage, the
dissemination of propaganda against the receiving state, or subversion of its
government
[EXAMPLE] The Philippine government ordered the closure of the Cuban
embassy here when it was discovered to be engaged in subversive
activities. Ambassador Hanihara was replaced in 1924 when he suggested
in a letter to the US State Department that the passage of a bill limiting
Japanese immigration was likely to produce “grave consequences”
DIPLOMATIC IMMUNITIES AND PRIVILEGES
• Reasons:
o Originally due to the fiction of exterritoriality by which the envoy was
considered an extension of the state he was representing
o Modern justification is to give the envoy the fullest freedom or
latitude in the exercise of his official functions
• Most of the diplomatic privileges and immunities have been reaffirmed and
are now expressly provided for in the Diplomatic Convention of 1961
Some of the most important privileges and immunities are:
1. Personal inviolability
• Envoy is regarded as sacrosanct and is entitled to the special
protection of his person, honor and liberty; an attack on any of these
AMB Notes 2017 | Page 24 of 54
 is deemed a serious offense and must be redressed with the most
severe penalties by the receiving state
• Art. 29 of the Diplomatic Convention provides: “The person of a
diplomatic agent shall be inviolable. He shall not be liable to any
form of arrest or detention. The receiving state shall treat him with
due respect and shall take all appropriate steps to prevent any
attack on his person, freedom or dignity.”
• Exceptions:
o When the envoy is injured because he himself caused the
initial aggression and thereby provoked retaliation or unduly
exposed himself to danger as by mixing with a disorderly
assemblage
o The local authorities, in exceptional cases, lay hands on him
if he has committed an act of violence and it is necessary to
place him in preventive restraint
• In the Philippines, RA No. 75 punishes, on the basis of reciprocity,
“any person who assaults, strikes, wounds, imprisons or in any other
manner offers violence to the person of an ambassador or public
minister, in violation of the law nations” with imprisonment for not
more than 3 years and a fine not exceeding P200.00 in addition to
the penalties prescribed by the Revised Penal Code. It is to be noted,
though, that the attack is confined to the person of the envoy and
does not include his honor or reputation
2. Immunity from jurisdiction
• It is a generally accepted principle of international law that the
diplomatic agent shall be immune from civil, criminal and
administrative jurisdiction of the receiving state except in a few
specified cases
• This does not mean that he can violate the local laws with
impunity as he is expected to observe them meticulously as befits
a person of his rank and prestige. If he does not, he may not be
punished for his offense by the receiving state, but it can and
usually will ask for his recall
• So strictly observed is this immunity that the envoy can escape
the rigor of the local laws even if he commits the most serious
offense in the receiving state
[EXAMPLES] When Spanish ambassador to England in 1584
plotted against the life of Queen Elizabeth I, he was merely
ordered to leave the country, as so too was the French
ambassador when he was involved in a conspiracy to kill
Cromwell in 1654. In 1587 the French ambassador committed a
similar offense against the same Queen Elizabeth I, he was
simply given a warning.
• Article 31 of the Diplomatic Convention provides: “A diplomatic
agent shall enjoy immunity from the criminal jurisdiction of the
receiving state. He shall also enjoy immunity from its civil and
administrative jurisdiction, except in the case of:
1. A real action relating to private immovable property
situated in the territory of the receiving state, unless he
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holds it on behalf of the sending state for the purposes of
the mission
2. An action relating to succession in which the diplomatic
agent is involved as executor, administrator, heir or
legatee as a private person and not on behalf of the
sending state
3. An action relating to any professional or commercial
activity exercised by the diplomatic agent in the
receiving state outside his official functions
• Waiver of immunity from jurisdiction may be
1. Express – by the sending state, or under its authority, by
the head of mission
2. Implied – as when the person entitled to the immunity
commences proceedings in the local state and thereby
opens himself to any counterclaim directly connected
with the principal claim
• Waiver of immunity from jurisdiction in respect of civil or
administrative proceedings shall not be held to imply waiver of
immunity in respect of the execution of the judgment, for which a
separate waiver shall be necessary
• In the Philippines, RA No. 75 provides that “any writ of process
sued out or prosecuted by any person in any court of the Republic
of the Philippines, or by any judge or justice, whereby the person
of any ambassador or public minister of any foreign state,
authorized and received as such by the President, or any
domestic servant of any such ambassador or minister is arrested
or imprisoned, or his goods or chattels are distrained, seized, or
attached, shall be deemed void, and every person by whom the
same is obtained or prosecuted, whether as party or as attorney,
and every officer concerned in executing it, shall, upon conviction,
be punished by imprisonment for not more than 3 years and a fine
of not exceeding P200.00 in the discretion of the court.”
• [CASE] WORLD HEALTH ORGANIZATION v. AQUINO
Facts: The respondent judge issued a warrant for the search and
seizure of certain goods alleged to have been brought into the
country illegally by an official of the WHO. The WHO and the
official moved to quash the warrant on the ground of the latter’s
diplomatic immunity under the Host Agreement concluded
between the Philippines and the WHO. The Secretary of Foreign
Affairs joined them in this representation, as so too later did the
Solicitor General. Nevertheless, the judge denied the motion,
holding that there were “strong and positive indications of
violations of local laws.”
Ruling: The Supreme Court annulled the search warrant. The
diplomatic immunity is essentially a political question and courts
should refuse to look beyond a determination by the executive
branch of the government. The Philippine Government is bound
by the procedure laid down in Article VII of the Convention on the
Privileges and Immunities of the Specialized Agencies of the
United Nations for consultations between the Host State and the
AMB Notes 2017 | Page 25 of 54
 United Nations agency concerned to determine, in the first
instance the fact of occurrence of the abuse alleged, and if so, to
ensure that no repetition occurs and for other recourses. This is a
commitment voluntarily assumed by the Philippine Government
and as such has the force and effect of law. Arguendo, the search
warrant proceeding is not the proper remedy. The judge,
nevertheless, in deference to the exclusive competence and
jurisdiction of the executive branch of government to act on the
matter, have acceded to the quashal of the search warrant, and
forwarded his findings or grounds to believe that there had been
such abuse of diplomatic immunity to the Department of Foreign
Affairs for it to deal with, in accordance with the aforementioned
Convention, if so warranted.
• [CASE] THE HOLY SEE v. ROSARIO
Facts: A civil complaint against the petitioner was instituted.
Ruling: The Supreme Court dismissed the complaint after the
Department of Foreign Affairs had “officially certified that the
Embassy of Holy Se is a duly credited diplomatic mission to the
Republic of the Philippines exempt from local jurisdiction as
entitled to all the rights, privileges and immunities of a diplomatic
mission or embassy in this country.” It was further affirmed that
“the determination of the executive arm of the government that a
state or instrumentality is entitled to sovereign or diplomatic
immunity is a political question that is conclusive upon the courts.
Where the plea of immunity is recognized and affirmed by the
executive branch, it is the duty of the courts to accept this claim
so as not to embarrass the executive arm of the government in
concluding the country’s foreign relations.”
3. Inviolability of diplomatic premises
• Art. 22 of the Diplomatic Convection provides:
o The premises of the mission shall be inviolable. The
agents of the receiving state may not enter them except
with the consent of the head of mission
o It places on the receiving state a special duty to take all
appropriate steps to protect the premises of the mission
against any intrusion or damage and to prevent any
disturbance of the peace of the mission or impairment of
its dignity
o The premises of the mission, their furnishings and other
property thereon and the means of transport of the
mission shall be immune from search, requisition,
attachment or execution
• Franchise de l’hotel – more pragmatic grounds that justifies the
extension of immunity form the local law to the diplomatic
premises which includes
o The envoy’s offices
o His residence and out-buildings
o His means of transportation
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o The compound where these are found which may not be
entered by the local authorities without his permission
• Rule is not absolute as it is allowed in cases of clear and urgent
necessity for the local authorities to take forcible measures to
arrest any person subject to their jurisdiction
• The so-called right of diplomatic asylum has not received
universal recognition except
o When it is extended for humanitarian reasons, as when
the fugitive seeking sanctuary is in immediate danger of
his life or safety
o In other cases, asylum is granted only on the strength of
local usage, particularly in favor of political refugees, or
of treaty stipulations
[CASE] SUN YAT SEN CASE
Sun Yat Sen was detained in 1895 in the Chinese legation in
London in defiance of a writ of habeas corpus. When the
British government threatened to use force to carry out the
order of the court, the Chinese minister immediately ordered
the prisoner’s release
4. Inviolability of archives
• Art. 24 of the Diplomatic Convention provides: “The archives
and documents of the mission shall be inviolable at any time and
wherever they may be.”
• Applicable even in the case of armed conflict, during which the
archives must remain sealed and may not be confiscated by the
local state
5. Inviolability of communication
• Art. 27 of the Diplomatic Convention provides: “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.”
• Such communications are “inviolable” and the diplomatic bag
containing it “shall not be opened or detained”
• Even the diplomatic courier carrying the diplomatic bag shall
“shall be protected by the receiving state in the performance of his
functions. He shall enjoy personal inviolability and shall not be
liable to any form of arrest or detention”
6. Exemption from testimonial duties
• Art. 31 of the Diplomatic Convention provides: “A diplomatic
agent is not obliged to give evidence as a witness.”
• No prohibition under international law from waiving this privilege
when authorized by his government
[EXAMPLES] The Venezuelan envoy testified at the trial of the
assassin of President Garfield in 1881. On the other hand, the
AMB Notes 2017 | Page 26 of 54
 Dutch envoy to Washington invoked this right in 1856 when he
rejected a request to testify in connection with a homicide
committed in his presence and for the prosecution of which his
testimony was necessary. The American government later asked
for his recall.
7. Exemption from taxation
• The diplomatic envoy is exempt from taxes, customs duties, and
other dues, subject to the exception listed in the Diplomatic
Convention, and as well as from social security requirements
under certain conditions
• His personal baggage is also free from inspection unless there
are serious grounds for presuming that it contains articles not
exempt from customs duties or not admissible into the receiving
state
8. Other privileges
• The receiving state shall ensure to all members of the mission
freedom of movement and travel in its territory subject to its
laws and regulations concerning zones entry into which is
prohibited or regulated for reasons of national security
• The receiving state shall exempt diplomatic agents from all
personal services, from all public services of any kind
whatever, and from military obligation such as those
connected with requisitioning, military contributions and billeting
• The mission and its head shall have the right to use the flag and
emblem of the sending state on the premises of the mission,
including the residence of the head of the mission, and on his
means of transport.
THE DIPLOMATIC SUITE OR RETINUE
The diplomatic retinue consists of
1. Diplomatic staff
2. Administrative and technical staff
o Enjoys the same rights as the diplomatic staff except that immunity
from civil and administrative jurisdiction shall not extend to unofficial
acts
3. Service staff
o Private servants of the official members of the mission, if they are
not nationals or permanent residents of the receiving state, enjoy
only exemption from dues and taxes on their income from the
mission and such other immunities and privileges as may be grated
by the receiving state
DURATION
• Every person entitled to diplomatic privileges and immunities shall enjoy
them from the moment he enters the territory of the receiving state on
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proceeding to take up his post or, if already there, from the moment
his appointment is notified to the foreign ministry
• When his functions have come to an end, his privileges and immunities shall
normally cease from the moment he leaves the country or on expiry of a
reasonable time in which to do so, but shall subsist until such time
even in case of armed conflict
• With respect to acts performed by him in the exercise of his official functions,
immunity shall continue indefinitely as it is supposed to have attached not
to him personally but to the state he was representing
• These privileges and immunities are available to him and to his family not
only in situ but as well as in transit, that is, when travelling through a third
state on the way to or from the receiving state, so far as may be necessary
to secure his transit or return
TERMINATION OF DIPLOMATIC MISSION
• A diplomatic mission may come to an end by any of the usual methods of
terminating official relations which are governed by municipal law like
o Death
o Resignation
o Removal
o Abolition of office
o Etc
• Under international law, the more important mode are
1. Recall - may be demanded by the receiving state when the
foreign diplomat becomes persona non grata to it for any reason
[EXAMPLE] USSR requested in 1953 the recall of US
Ambassador Kennan for making derogatory statements against
the Soviet Government
2. Dismissal – a more drastic method which may be resorted by the
receiving state where the demand for recall is rejected or even
without making a request for recall
[EXAMPLES] In October 1971, the British Government ordered
no less than 105 Soviet diplomatic officials to leave Great Britain
– the largest diplomatic expulsion in peacetime history – for
espionage. The USSR later retaliated by ousting 5 British
diplomats and refusing to accept 13 others. In 1976, the North
Korean ambassador and several members of his diplomatic
mission were expelled by the Scandinavian states to which they
were accredited, for alleged involvement in illicit drugs
• Diplomatic relations are terminated by
1. The outbreak of war between the sending and receiving states
(diplomatic relations are usually severed even before the actual
commencement of hostilities)
2. Extinction of either state
• In case of change of government, there is a necessity for the diplomatic
agent to be provided with a new letter of credence according to Openheim
o If the change is peaceful: diplomatic relations are not disturbed
AMB Notes 2017 | Page 27 of 54
 o If the change is effected by means of violence and the new
government has not yet been recognized by the receiving state:
diplomatic relations are suspended
CHAPTER 13: CONSULS
CONSULS – are state agents residing abroad for various purposes but mainly in the
interest of commerce and navigation
• Unlike diplomatic agents, they are not charged with the duty of
representing their states in political matters nor are they accredited
to the state where they are supposed to discharge their functions
• Hence, consuls do not ordinarily enjoy all the traditional diplomatic
immunities and privileges, although they are to a certain extent entitled
to special treatment under the law of nations
HISTORY
• Six centuries before Christ
o Egyptians allowed the Greeks at Naucratis to choose from among
themselves a magistrate who would apply to them the laws of
their own country
o Later, the Greeks began sending to foreign jurisdictions their own
protectors or prostrates (proxenoi), a practice modified by the
Romans with the appointment of the praetor peregrinus, who
interpreted the law between the Roman and foreigners
• Following the conquest of Rome, the Visigoths established a special court
that applied to foreigners their own national laws rather than the law of the
territorial sovereign
th
• Similar courts were created by the Chinese during the 8 century and by the
th
Arabs in the 9 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 in the Near East from the local jurisdiction and made
them triable by their own consuls according to their own national laws
• Eventually, in view of their growing importance, consuls acquired official
character when they were commissioned directly by their own governments
rather than merely by their own countrymen
• The rise in nationalism and the concept of sovereignty, however, gradually
decreased much of the power of consuls until they became vested only with
authority to act generally on commercial and related matters
• Nevertheless, the continuing expansion of international commerce, coupled
with the improvement of transportation and communication in the 17 and
th
th
18 centuries, led to the further growth of consular services
KINDS AND GRADES
Two kinds of consuls:
1. Consules missi – professional or career consuls who are nationals of the
appointing state and are required to devote their full time to the discharge of
their consular duties
Based on the book International Law by Cruz (2003 Edition) | This material has not been proofread.
2. Consules electi – may or may not be nationals of the appointing state and
perform their consular functions only in addition to their regular callings
Grade or ranks of consuls remain a matter of municipal concern. However, under the
Consular Convention, the heads of consular posts are classified according to
importance into
• Consul-general
• Consul
• Vice-consul
• Consular agent
APPOINTMENT
Two principal sources of consul’s authority:
1. Lettre de provision or the letter patent – which is the commission issued by
the sending state
2. Exequatur – which is the authority given to them by the receiving state to
exercise their duties therein
• Consuls are public officers not only of the sending state but of the receiving
state as well, and are governed by the laws of both
o In the case of diplomats, states may refuse to receive consuls and
to withhold the exequatur from them without explanation
• The consent given to the establishment of diplomatic relations between two
states implies, unless otherwise stated, consent to the establishment of
consular relations
o However, the severance of diplomatic relations shall not ipso
facto involve the severance of consular relations, and vice versa
FUNCTIONS
Functions of consuls may be divided into
1. Duties pertaining to commerce and navigation
o Principal duty of consuls is to promote the commercial interests of
their country in the receiving state and to observe the commercial
trends and developments therein for report to their home
government
o Navigation duties
§ Visiting and inspecting vessels of their own states
which may be in the consular district
§ Exercising a measure of supervision over such vessels
§ Adjusting matters pertaining to their internal order and
discipline
§ Visiting and inspecting foreign vessels destined for a
port of the sending state
2. Duties respecting the issuance of passports and visas
o To issue passports to nationals of the sending state
o To visa passports and to issue documents relating to entry into
travel within the territory of the sending state
AMB Notes 2017 | Page 28 of 54
 o To visa invoices and certificates of origin of goods destined for the
territory of that state
3. Duties of protection of nationals
o They may authenticate documents
o Solemnize marriages
o Register births and deaths
o Temporarily administer the estates of deceased nationals within
the consular district
o Advise and adjust differences between their fellow nationals
o Visit them when they are arrested or detained by the receiving
state
o Assist them in proceedings before or in relation with the local
authorities
o Inquire into any incidents which have occurred within the consular
district affecting the interests of such nationals
IMMUNITIES AND PRIVILEGES
1. Consuls have a right to official communication and may correspond with
their home government or other official bodies by any means, including
cipher or code, without being subjected to censorship or unreasonable
restraint
o This right may be curtailed or restricted whenever it is exercised
to the prejudice of the receiving state
2. Consuls enjoy inviolability of their archives, which may not be examined or
seized by the receiving sate under any circumstance, nor may their
production or testimony concerning them be compelled in official
proceedings
o This immunity does not extend to the consular premises
themselves, where legal process may be served and arrests
made without violation of international law, except only in that part
where consular work is being performed
o [CASE] MRS. KASENKINA CASE
The United States rejected a protest made by Russia against the
service of a writ of habeas corpus upon the latter’s consul at his
official residence in New York for the production of a Russian
schoolteacher alleged to be detained in the premises.
o In fact, the consular offices may even be expropriated for
purposes of national defense or public utility
3. With respect to criminal offenses, consuls are exempt from the local
jurisdiction for crimes committed by them in the discharge of their official
functions
o With regard to other offenses, they are fully subject to the local
law and may be arrested, prosecuted and punished in proper
proceedings
o For reasons of comity, however, consuls usually are not
prosecuted for minor offenses and, when arrested, are given
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adequate opportunity to secure their release on bail at the earliest
possible time
o Civil suits may be instituted against consuls in their personal or
private capacity but not in matters connected with their official
duties
o [CASE] WALTHIER v. THOMSON
Facts: A consul was sued for damages resulting from certain
statements allegedly made by him.
Ruling: Consular official is immune from suit when the acts
complained of were performed in the course of his official duties.
Thus, if the statements allegedly made to Walthier by Thomson
were uttered in pursuance of Thomson’s official functions as a
consular officer, then the suggestion of the ambassador of
Canada should be adopted and the defendant held immune.
4. Consuls are generally exempted from taxation, custom duties, service in the
militia, and social security rules, and are privileged to display their national
flag and insignia in the consulate although these concessions are
considered “non-essential” to the proper discharge of their official duties
• These immunities and privileges are available not only to the consul but also
to the members of the consular post, their respective families, and the
private staffs.
• Waiver may in general be made by the sending state
• With respect to acts performed by the consul or a consular officer or
employee in the exercise of his functions, immunity from jurisdiction will
subsist without limitation of time
TERMINATION OF CONSULAR MISSION
Modes of termination of the consul’s office:
o Removal
o Resignation
o Death
o Expiration of the term
o Etc
• The exequatur may also be withdrawn by the receiving state, either of the
appointing or receiving state may be extinguished, or war may break out
between them
• In the event of war, the consulate is closed and the archives are sealed and
left in the custody of a caretaker, usually a consul from a neutral state. The
consul from the belligerent state is allowed to depart for his own country as
soon as possible and without unnecessary molestation
• Severance of consular relations does not necessarily terminate diplomatic
relations. Thus, as a offshoot of the Kasenkina case, Russia and the US
discontinued consular relations for more than 15 years. During that period,
however, they maintained diplomatic relations
CHAPTER 14: TREATIES
AMB Notes 2017 | Page 29 of 54

Treaty
• 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 general sense, it may embrace such other compacts as conventions,
declarations, covenants, acts, concordats, etc
• Under international law, treatise and executive agreements are alike in that
both constitute equally binding obligations upon the nation
o Under municipal law, distinction may be made in that an executive
agreement is not a treaty insofar as the concurrence thereto of
the Senate is not required under our Constitution
FUNCTIONS OF TREATIES
According to Schwarzenberger, there are four important functions of treaties:
1. It enables parties to settle finally actual and potential conflicts
2. It makes it possible for the parties to modify the rules of international
customary law by means of optional principles of standards
3. It may lead to a transformation of unorganized international society into one
which may be organized on any chose level of social integration
4. It frequently provides the humus for growth of international customary law
ESSENTIAL REQUISITES OF A VALID TREATY
1. Must be entered into by parties with the treaty-making capacity
• All states have full-treaty making capacity unless limited by reason
of their status or by previous self-imposed inhibitions
o The protectorate is restricted in the control of its
external affairs by the protector-state
o The neutralized state may not agree to a defensive or
offensive alliance
• On the other hand, there are instances when even mere colonies
have been allowed to sign treaties or join international conferences
as full-fledged members along with sovereign states
• United Nations and its organs, such as the Security Council and the
Economic and Social Council, and international bodies like the
World Health Organization, may also enter into treaties
2. Through their authorized representatives
• The municipal law determines which organ of the state shall be
empowered to enter into treaties in its behalf
• Sec. 21, Article VII of the 1987 Constitution of the Philippines
authorizes the President to make treaties, subject to the
concurrence of 2/3 of all the members of the Senate
• Legal effect of a treaty concluded by an organ of the state without
constitutional authority to undertake such function:
o Harvard Research on International Law declares: “A state is
not bound by a treaty made in its behalf by an organ or
authority not competent under the law to conclude the treaty;
Based on the book International Law by Cruz (2003 Edition) | This material has not been proofread.
however, a state may be responsible for an injury resulting to
another state for reasonable reliance by the latter upon a
representation that such organ or authority was competent to
conclude the treaty.”
o View by Hackworth, Hyde, Willoughby, etc as written by
Mcnair: If a party negotiating a treaty produces an
authorization which appears to be complete and regular
although in fact constitutionally defective, “the other party, if
it is ignorant and reasonably ignorant of the defect, is entitled
to assume that the instrument is in order an to hold the
former to the obligation of the latter.”
3. Without the attendance of duress, fraud, mistake or other vice of consent
• Fraud or mistake will invalidate a treaty as it would an ordinary
contract
• Legal effect of duress:
o Force upon the person of the negotiator: unquestionably null
and void ab initio
§ Treaty signed in Bayonne in 1807 by Ferdinand VII
under threat by Napoleon that the Spanish
monarch
o Force upon the state itself: the state which has resorted to
war in violation of its obligations under the Charter of the
United Nations and the General Treaty for the Renunciation
of War cannot be held to apply force in a manner permitted
by law. Accordingly, duress in such cases must be regarded
as vitiating the treaty
4. On any lawful subject-matter
• Examples:
o Treaty of Tordesillas in 1494 on division between Spain and
Portugal parts of the Atlantic, Pacific and Indian Oceans,
which are open seas under the law of nations
o Traffic in white slavery or narcotics (contrary to international
conventions and public morality)
o Operation of the activities of pirates (hostes humanis
generis)
5. In accordance with their respective constitutional processes
• The treaty-making process is governed by international law except
with respect to the method of ratification as required by the
municipal law of most states at present. Non-compliance with this
requisite will prevent enforcement of the treaty even if already
signed by the authorized negotiators
TREATY-MAKING PROCESS
1. Negotiation
• May be undertaken directly by the head of state but he now
usually assigns this task to his authorized representatives. These
AMB Notes 2017 | Page 30 of 54
 representatives are provided with credentials known as full
powers, which they exhibit to the other negotiators at the start of
the formal discussions
• It is a standard practice for one of the parties to submit a draft of
the proposed treaty which, together with the counter-proposals,
becomes the basis of the subsequent negotiations
• The negotiations may be brief or protracted, depending on the
issues involved, and may even “collapse” in case the parties are
unable to come to an agreement on the points under
consideration
• If and when the negotiators finally decide on the terms of the
treaty, the same is opened for signature
2. Signature
• Primarily intended as a means of authenticating the instrument
and for the purpose of symbolizing the good faith of the parties;
but, significantly, it does not indicate the final consent of the state
in cases where ratification of the treaty is required
• The document is ordinarily signed in accordance with the alternat,
that is, each of the several negotiators is allowed to sign first on
the copy which he will bring home to his own state
3. Ratification
• It is the formal act by which a state confirms and accepts the
provisions of a treaty concluded by its representatives
• Its purpose is to enable the contracting states to examine the
treaty more closely and to give them an opportunity to refuse to
be bound by it should they find it inimical to their interests
• The requirement of ratification will still hold true even without a
provision that the instrument shall be subject to ratification
according to the constitutional processes of the negotiating states
• Hence, an ungratified treaty cannot be a source of obligations
between the parties
• If a treaty is ratified in violation of the constitution of the ratifying
state, as when it has not previously received the required
approval of the legislature, it is a majority view that “foreign
governments should be held to a knowledge of the constitutional
prerequisites for ratification in each country with which they are
dealing; and that a treaty which has been ratified without proper
observance of these requirements is ipso facto invalid, whatever
the proclamation of the head of the state may assert in that
respect
• There is no legal obligation to ratify a treaty, but refusal to ratify
must be based on substantial grounds and not on superficial or
whimsical reasons: otherwise the other state would be justified in
taking offense
• At times, to avoid total rejection of a treaty, the ratification is
qualified or made conditional, i.e., with reservations, in which
event the same must be accepted by the other party if these
would constitute a modification of the original agreement
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• Under the Philippine Constitution, the power to ratify treaties is
vested in the President and not, as is commonly believed, in the
legislature. The role of the Senate is confined simply to giving or
withholding its consent (a “veto power” as Corwin calls it) to the
ratification. It is competent for the President to refuse to submit a
treaty to the Senate or, having secured its consent for its
ratification, to refuse to ratify it. But as a rule, he cannot ratify a
treaty without the concurrence of two-thirds of all members of the
Senate
4. Exchange of the instruments of ratification
• Usually also signifies the effectivity of the treaty unless a different
date has been agreed upon by the parties
• Where ratification is dispensed with and no effectivity clause is
embodied in the treaty, the instrument is deemed effective upon
its signature
5. Submission for registration and publication under the U.N. Charter (this step
is not essential to the validity of the agreement as between the parties)
• Under Article 102 of the U.N. Charter, a treaty not registered with
the Secretariat, by which it shall be published, cannot be invoked
before any organ of the United Nations, such as the International
Court of Justice. Nevertheless, the treaty does not cease to be
binding between the parties and may be the basis of a litigation
before some other arbitral or judicial body not connected with the
United Nations. This is a modification of the rule under the
Covenant of the League of Nations, which provided that treaties
not registered and published shall be null and void
BINDING EFFECT OF TREATIES
As a rule, a treaty is binding only on the contracting parties, not only the original
signatories but also other states which, although they may not have participated in the
negotiation of the agreement, have been allowed by its terms to sign it later by a
process known as accession. Non-parties are usually not bound under the maxim
pacta tertiis nec nocent nec prosunt (a treaty binds the parties and only the parties; it
does not create obligations for a third state)
Instances when third states may be validly held to the observance of or benefit from
the provisions of a treaty:
1. 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
2. It is provided under Article 2 of the U.N. Charter that the Organization “shall
ensure that non-member States shall act in accordance with the principles
of the Charter so far as may be necessary for the maintenance of
international peace and security,” and under Article 103 that the obligations
of any member-states shall prevail in case of conflict with “any other
international agreement,” including those concluded with non-members
AMB Notes 2017 | Page 31 of 54
 3. The treaty itself may expressly extend its benefits to non-signatory states,
such as the Hay-Pauncefote Treaty of 1901, which, although concluded only
by the United States and Great Britain, opened the Panama Canal “to the
vessels of commerce and of war of all nations observing these Rules, on
terms of entire equality”
4. 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 from the other may claim the benefits extended by the latter
to another state in a separate agreement
To illustrate: If X agrees to extend most-favored-nation treatment to Y and
thereafter grants tariff preferences to Z under another treaty, Y will be
entitled, by virtue of its treaty with X, to enjoy the same advantages
conceded to Z
OBSERVANCE OF TREATIES
[CASE] TANADA v. ANGARA
Ruling by PH SC: A treaty engagement is not a mere moral obligation but creates a
legally binding obligation on the parties. A state which has contracted valid
international obligations is bound to make in its legislations such modifications as may
be necessary to ensure the fulfillment of the obligations undertaken. By their inherent
nature, treaties really limit or restrict the absoluteness of sovereignty. By their
voluntary act, nations may surrender some aspects of their state power in exchange
for greater benefits granted by or derived from a convention or pact. The sovereignty
of a state therefore cannot in fact and in reality be considered absolute. Certain
restrictions enter into the picture:
1. Limitations imposed by the very nature of membership in the family of
nations
2. Limitations imposed by treaty stipulations
It has already been observed that when a treaty conflicts with the constitution of one of
the parties, the former is nevertheless internationally binding although unenforceable
under municipal law. The reason, according to Willoughby, is that “peculiarities of
constitutional structure are without international significance to other states. Each
state, as a member of the international society of states, has an organ or government
through which it communicates with and enters into contractual and other relations
with other states. Whatever undertakings are entered into by such organs are
internationally binding upon the states which they represent.”
Under these circumstances, the state called upon to perform its obligations may ask
for a revision of the treaty, amend its constitution to make it conform to the treaty
requirement, or pay damages to the other parties for its inability to comply with its
commitments
Doctrine of rebus sic stantibus
• Invoked on occasion by states despite the general requirement of strict
enforcement of treaties
• Jessup describes as “the equivalent exception to the maxim pacta sunt
servanda” and “constitutes an attempt to formulate a legal principle which
would justify non-performance of a treaty obligation if the conditions with
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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”
• Recognized by The Draft Law of Treaties prepared by the International Law
Commission as a mode of terminating treaties in the following provision:
“Where a fundamental change has occurred with regard to a fact
or situation existing at the time when the treaty was entered into,
it may be invoked as a ground for terminating or withdrawing
from the treaty if:
a. The existence of that fact or situation constituted an
essential basis of the consent of the parties to the
treaty; and
b. The effect of the change is to transform in an essential
respect the character of the obligations undertaken in
the treaty.”
• This doctrine is subject to the following limitations:
1. It applies only to treaties of indefinite duration
2. The vital change must have been unforeseen or unforeseeable
and should not have been caused by the party invoking the
doctrine
3. The doctrine must be invoked within a reasonable time
4. It cannot operate retroactively upon the provisions of the treaty
already executed prior to the change of circumstances
• Invoked by the United States when it announced that it would no longer
consider itself bound by the International Load Line Convention, which was
concluded in 1930 to limit international competition in the loading of cargo
vessels. In justifying its stand, it claimed that the agreement contemplated
peacetime commerce and voyages and that because ten of the thirty-six
signatories were at war and the other twenty-six were maintaining a
“precarious neutrality,” the situation intended to be regulated had become “a
wholly different one.” Accordingly, President Roosevelt declared that “under
approved principles of international law, it has become, by reason of such
changed conditions, the right of the United States of America to declare the
Convention suspended and inoperative.”
TREATY INTERPRETATION
As in the case of contracts, the basic rule in the interpretation of treaties is to give
effect to the intention of the parties. This should be discoverable in the terms of the
treaty itself, which ordinarily has an official text or texts to be used in case of conflicts
in interpretation. Most treaties also contain a “protocol” or “agreed minutes” in which
certain terms used in the body are defined and clarified
The usual canons of statutory construction are employed in the interpretation of
treaties. To mention a few:
• Specific provisions must be read in light of the whole instrument and
especially of the purposes of the treaty
AMB Notes 2017 | Page 32 of 54
 • Words used are to be given their natural meaning unless a technical sense
was intended, and, when they have different meanings in the contracting
states, should be interpreted in accordance with the usage of the state
where they are supposed to take effect
• Doubts should be resolved against the imposition of obligations and in favor
of the freedom and sovereignty of the contracting parties
• At all events, an interpretation that will lead to an absurdity is to be avoided
and a more rational result preferred
• Where intrinsic aids are unavailing, resort may be made to extrinsic aids,
such as the circumstances leading to the conclusion of the treaty,
statements recorded at the time of the negotiations, the preliminary
materials used, i.e., the travaux preparatories, and the like
Conflicts in treaty interpretation may be resolved only by agreement of the parties
themselves or by an international body and not unilaterally by the national courts of
the contracting parties. Decisions of such courts are received with respect but not as
authority.
TERMINATION OF TREATIES
A treaty may be terminated in any of the following ways:
1. By expiration of the term, which may be fixed or subject to a resolutory
condition
2. By accomplishment of the purpose
3. By impossibility of performance
4. By loss of the subject-matter
5. By desistance of the parties, through express mutual consent; desuetude, or
the exercise of the right of denunciation (or withdrawal), when allowed
6. By novation
7. By extinction of one of the parties if the treaty is bipartite
8. By vital change of circumstances under the doctrine of rebus sic stantibus
9. By outbreak of war between the parties in most cases, save specifically
when the treaty was intended to regulate the conduct of the signatories
during the hostilities, or to cede territory, or to fix boundaries
[CASE] TECHT v. HUDGES
Ruling: Provisions of a treaty compatible with a state of hostilities, unless
expressly terminated, will be enforced, and those incompatible rejected
10. By voidance of the treaty because of defects in its conclusion, violation of its
provisions by one of the parties, or incompatibility with international law or
the U.N. Charter
CHAPTER 15: NATIONALITY AND STATELESSNESS
Nationality – the tie that binds an individual to his state, from which he can claim
protection and whose laws he is obliged to obey. It is the membership in a political
community with all its concomitant rights and obligations
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Citizenship – has more exclusive scope in that it applies only to certain members of
the state accorded more privileges than the rest of the people who also owe it
allegiance
Subject – has particular reference to the nationals of monarchial regimes, e.g., a
British subject, who may be a citizen of the United Kingdom or of one of its colonies
ACQUISITION OF NATIONALITY
1. By birth – where an individual acquires the nationality of the state where he
is born jure soli or the nationality of his parents jure sanguinis
2. By naturalization – a process by which a foreigner acquires, voluntarily or by
operation of law, the nationality of another state
a. Direct
i. By individual proceedings, usually judicial, under
general naturalization laws
ii. By special act of the legislature, often in favor of
distinguished foreigners who have rendered some
notable service to the local state
iii. By collective change of nationality (naturalization en
masse) as a result of cession or subjugation
iv. In some cases, by adoption of orphan minors as
nationals of the state where they are born
b. Derivative – does not always follow for it is usually made subject
to stringent restrictions and conditions. In the Philippines, an alien
woman married to a Filipino shall acquire his citizenship only if
she herself might be lawfully naturalized
i. On the wife of the naturalized husband
ii. On the minor children of the naturalized parent
iii. On the alien woman upon marriage to a national
MULTIPLE NATIONALITY
An individual may sometimes find himself possessed of more than one nationality
because of the concurrent application to him of the municipal laws of the states
claiming him as their national
Doctrine of indelible allegiance – an individual may be compelled to retain his
original nationality notwithstanding that he has already renounced or forfeited it under
the laws of a second state whose nationality he has acquired
Illustration: The case of a woman who upon marriage to a foreigner continues to be a
national of her own state under its laws while also acquiring her husband’s nationality
in accordance with the laws of his state
[CASE] William’s Case
AMB Notes 2017 | Page 33 of 54
Facts: An American citizen had accepted a commission in the French navy was
convicted of violating the Neutrality Act of 1874 notwithstanding his defense that he
had been naturalized in France.
Held: He had no power to renounce his allegiance without the consent of the United
States and was, therefore, still subject to its laws.
By contrast, a state may allow any of its nationals to remain as such even if he may
have acquired another nationality, as where he is conferred an honorary citizenship by
a foreign government
LOSS OF NATIONALITY
Nationality may be lost:
1. Voluntarily (both modes usually precede the acquisition of a new nationality)
a. Renunciation – express or implied
b. Request for release
2. Involuntarily
a. Forfeiture – as a result of some disqualification or prohibited act
like enlistment in a foreign army or long continued residence in a
foreign state
b. Substitution – of one nationality for another following a change of
sovereignty or any act conferring derivative naturalization
CONFLICT OF NATIONALITY LAWS
To provide against conflicts arising from divergent municipal laws on nationality, the
following rules were embodied in the Hague Convention of 1930 on the Conflict of
Nationality Laws:
Art. 1. It is for each State to determine under its laws who are its
nationals. This law shall be recognized by other States insofar as it is
consistent with international conventions, international customs, and the
principles of law generally recognized with regard to nationality.
Art. 2. Any question as to whether a person possesses the nationality of
a particular State shall be determined in accordance with the law of the
State.
Art. 3. Subject to the provisions of the present Convention, a person
having two or more nationalities may be regarded as its national by
each of the States whose nationality he possesses.
Art. 4. A State may not afford diplomatic protection to one of its
nationals against a State whose nationality such person also possesses.
Art. 5. Within a third State, a person having more than one nationality
shall be treated as if he had only one. Without prejudice to the
application of its law in matters of personal status and of any convention
in force, a third State shall, of the nationalities which any such person
possesses, recognize exclusively in its territory either the nationality of
the country in which he is habitually and principally resident or the
nationality of the country with which in the circumstances he appears to
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be in fact most closely connected. (Principle of Effective or Active
Nationality)
Art. 6. Without prejudice to the liberty of a State to accord wider rights to
renounce its nationality, a person possessing two nationalities acquired
without any voluntary act on his part may renounce one of them with the
authorization of the State whose nationality he desires to surrender.
This authorization may not be refused in the case of a person who has
his habitual and principal residence abroad, if the condition laid down in
the law of the State whose nationality he desires to surrender are
satisfied.
Thus, where a person possesses both Philippine and American nationality, his claim
to Philippine nationality shall be decided on the basis alone of Philippine law, to the
exclusion of all other laws. If, on the other hand, he claims American nationality, the
matter shall be resolved on the basis alone of American law, to the exclusion of all
other laws. But if the issue of his real nationality is raised in a third state, say Spain,
the laws of that country will obviously be inapplicable as he does not claim Spanish
nationality. In this situation, Spain shall apply the principle of effective or active
nationality, under which the dual national shall be considered the national exclusively
of the state with which he is most closely connected.
[CASE] UNITED STATES (ALEXANDER TELLECH) v. AUSTRIA & HUNGARY
Issue: Could the Austrian government subject Alexander Tellech, who was born of
Austrian parents in the United States, to compulsory military service?
Held: “The action taken by the Austrian civil authorities in the exercise of their police
powers and by the Austro-Hungarian military authorities, of which complaint is made,
was taken in Austria, where claimant is voluntarily residing, against claimant as an
Austrian citizen. 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.”
[CASE] THE CANEVARO CASE
Issue: May Italy file a diplomatic claim against Peru on behalf of Rafael Canevaro,
who is a national of both states under their respective municipal laws?
Held: “Whereas, according to Peruvian legislation (34 of the Constitution), Rafael
Canevaro is a Peruvian by birth because born on Peruvian territory, and, whereas, on
the other hand, according to Italian legislation (Article 44 of the Civil Code) he is of
Italian nationality because born of an Italian father; whereas, as a matter of fact,
Rafael Canevaro had 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,
AMB Notes 2017 | Page 34 of 54
the Government of Peru has a right to consider him a Peruvian citizen and to deny his
status as an Italian claimant.”
[CASE] THE NOTTEBOHM CASE
Facts: Nottebohm, a German by birth, had been a resident of Guatemala for 34 years
when he applied for and acquired naturalization in Liechtenstein one month before the
outbreak of the World War II. Many members of his family and his business
connections were in Germany. In 1943, Guatemala, which had declared a war on
Germany, confiscated all his properties on the ground that he was an enemy national.
Liechtenstein thereupon filed suit against Guatemala on his behalf as a naturalized
citizen of Liechtenstein.
Issue: Was Nottembohm’s naturalization in Liechtenstein binding on Guatemala?
Held: “The courts of third States, when they have before them an individual whom two
other States hold to be their national, seek to resolve the conflict by having recourse to
international criteria and their prevailing tendency is to prefer the real and effective
nationality… (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 after his naturalization and showed every intention of
remaining there… Naturalization was asked not so much for the purpose of obtaining
a legal recognition of Nottebohm’s membership in fact in the population of
Liechtenstein, as it was to enable him to substitute for his status as a national of a
belligerent State that of a national of a neutral State, with the sole aim of thus coming
within the protection of Liechtenstein but not of becoming wedded to its traditions its
interests, its way of life or of 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-à-vis Guatemala and its claim must, for this reason, be held to be
inadmissible.”
STATELESSNESS
1. One who is born without any nationality
Example: A child born in a state where only the jus sanguinis is recognized
to parents whose state observes only the jus soli
2. One who loses his nationality without retaining or acquiring another
Example: An individual who after renouncing his original nationality in order
to be naturalized in another state is subsequently denaturalized and is
thereafter denied repatriation by his former country
• The individual is, from the traditional viewpoint, 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 other state had been offended and
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no international delinquency committed as a result of the damage caused
upon him. This is so because any injury to the individual by a foreign
jurisdiction is, legally speaking, not a violation of his own right but of the
right of his state to the protection of its nationals; the right to complain
belongs not to him but to the state of which he is a national.
• “The only juridical relation, therefore, which authorizes a State to exact from
another the performance of conduct prescribed by International Law with
respect to individuals is the bond of nationality. This is the link existing
between that law and individuals and through it alone are individuals
enabled to invoke the protection of a State and the latter to intervene in their
behalf. A State, for example, does not commit an international delinquency
in inflicting an injury upon an individual lacking nationality, and consequently
no State is empowered to intervene or complain on his behalf either before
or after the injury.
• Hague Convention of 1930 adopted certain rules calculated to avoid the
condition of statelessness and all its attendant inconveniences
o In the case of naturalization, the wife and children retain their
existing nationality if they are not also naturalized
o The wife will acquire her husband’s new nationality, if permitted,
only with her own consent
o The adopted child’s existing nationality is also not lost if he does
not acquire the adopter’s nationality
o In other cases, it is provided that children shall have the
nationality of the state of their birth whenever their parents are:
a. Unknown
b. Stateless or of unknown nationality
c. A father who is stateless or of unknown nationality and
a mother who is a national of the state where they are
born
• A stateless individual is not entirely without recourse; under the Covenant
Relating to the Status of Stateless Persons, adopted in 1954, he is entitled
to, among others:
1. The right to religion and religious instruction
2. Access to courts
3. Elementary education
4. Public relief and assistance and rationing of products in short
supply
5. Treatment no less favorable than that accorded to aliens
generally
Moreover, the terms of the Universal Declaration of Human Rights are
sufficiently broad to encompass the stateless individual with its protection
and sympathy as a member of the human family.
Nationality Principle – it is for each State to establish its own standards for
conferring nationality
Diplomatic Protection – a state is entitled to protect its subjects when injured by acts
contrary to international law committed by another State, from whom they have been
unable to obtain satisfaction through ordinary channels
AMB Notes 2017 | Page 35 of 54
Conditions for the exercise of diplomatic protection:
1. The defendant State has broken an obligation towards the national State in
respect of its own nationals
2. Only the party to whom an international obligation is owed can bring a claim
regarding breach of that obligation
Principle of Continuous Nationality – applies to claims for diplomatic protection; it
requires that from the time of the occurrence of the injury until the making of the award,
the claim must continuously and without interruption have belonged to a person or to a
series of persons
a. Having the nationality of the State by whom it is put forward, and
b. Not having the nationality of the State against whom it is put forward
Principle of National Treatment – an alien cannot complain provided he receives the
same treatment as nationals
Doctrine of Effective Nationality – within a third state, a person having more than
one nationality shall be treated as if he had only one
Doctrine of Indelible Allegiance – a State may prohibit its nationals from changing
their nationality under certain circumstances
Doctrine of Nemo Potest Exuere Patriam – basis of the Doctrine of Indelible
Allegiance; where the bond of nationality once forged could never be broken
Right of Expatriation – right of a person to renounce his nationality or allegiance to
his original State
CHAPTER 16: TREATMENT OF ALIENS
A state if it sees fit, may determine conditions on admission or even bar the entry of
aliens altogether as exercise of its right inherent in sovereignty. Once it decides to
accept them, however, its competence as territorial sovereign is limited by the
requirement that they be treated justly, in accordance with the law of nations. If
this duty is not observed, the alien and his state would have valid cause for complaint.
This is not to suggest that alien is entitled to special treatment over and above that
accorded the national of the local state. Details of such prerogatives is a sovereign act
of the local estate to which the foreigner must be prepared to submit.
It is a cardinal rule of international law that the foreigner must accept the
institutions of the local state as he finds them. This rile is better stated in the
saying, “When in Rome, do as the Romans do.”
It is also an accepted principle that the state is not an insurer of the life or property
of the alien when he is within its territory.
THE DOCTRINE OF STATE RESPONSIBILITY
Based on the book International Law by Cruz (2003 Edition) | This material has not been proofread.
Doctrine of State Responsibility – governs instances when the alien can claim a more
favored position than the national of the local state and, in proper cases, hold the state
liable for injuries committed against him while within its territory.
Under this doctrine, a state may be held responsible for:
1. An international delinquency
2. Directly or indirectly imputable to it
3. Which causes injury to the national of another state
The doctrine has been frequently invoked in recent times because of the expanding
need and desire of nations for wider relations in their commercial and cultural activities.
The idea is to encourage more intercourse among the people of the world through
inter-visitation of their respective countries.
THE INTERNATIONAL STANDARD OF JUSTICE
• Defied precise definition
• Some writers describe it as the standard of the reasonable state, that is, as
referring to the ordinary norms of official conduct observed in civilized
jurisdictions
• Deemed not satisfied
o If the laws of a state are intrinsically unjust, as when there is a
marked disproportion between the degree of an offense and the
penalty imposed for it, e.g., when a minor crime like petty theft is
punished with death
o If the laws of the state authorize the summary decision of
contentious cases without the observance of the usual rights to
notice and hearing and other generally accepted requirements of
due process
• The relations of the state with its own nationals are purely municipal;
international law is involved in its relations with the nationals of other states.
Hence, while the national may not demand, say, the right of confrontation if
this is not granted by the local law, the foreigner can. This is the view more
generally favored as against the so-called doctrine of equality of
treatment
[CASE] U.S. (CHATTIN) v. MEXICO
Facts: The US filed a claim on behalf of a national who was allegedly arrested, tried
and sentenced illegally by the Mexican government and subjected to inhuman
treatment in jail.
Held: Upheld most of the charges filed by the claimant. Bringing the proceedings of
Mexican authorities to the test of international standards, there can be no doubt of
their being highly insufficient. Inquiring whether there is convincing evidence of these
unjust proceedings, the answer must be in the affirmative. Since this is a case of
alleged responsibility of Mexico for injustice committed by its judiciary, it is necessary
to inquire whether the treatment of Chattin amounts even to an outrage, to bad faith,
to willful neglect of duty, or to an insufficiency of government action recognizable by
every unbiased man; and the answer here again can only be in the affirmative.
AMB Notes 2017 | Page 36 of 54

FAILURE OF PROTECTION OR REDRESS
Even if its laws conform to the international standard of justice, the state may still be
held liable if it does not make reasonable efforts to prevent injury to the alien or,
having done unsuccessfully, fails to repair such injury.
Illustration: The state will be held liable if a foreigner is killed and is shown that its
authorities were informed in advance of the plot to kill him but did not act to forestall it.
Furthermore, even if it did take reasonable precautions, the state would still be held
liable if it thereafter does not employ the necessary diligence to arrest and punish the
malefactors or otherwise redress the wrong committed.
The degree of diligence required must vary with the circumstances of every case.
[CASE] U.S. (NOYES) v. PANAMA
Held: The Republic of Panama was not held liable for injuries sustained by the
American national from an unruly and intoxicated crowd in a small village, it having
been shown that the local police force of three members was reinforced when disorder
was apprehended, that a policeman and the police chief himself tried actively to
protect Noyes when he was attacked, and that it was not possible to pinpoint the
culprits in view of the tumultuous nature of the incident.
[CASE] U.S. (YOUMANS) v. MEXICO
Held: Where the very troops sent to disperse a Mexican mob joined it in killing a
number of Americans, compensation was awarded to the US.
[CASE] MEXICO (GALVAN) v. U.S.
Held: The reason for holding the US liable for the killing of a Mexican in Texas was
not the failure to apprehend the criminal but the unreasonable delay in his prosecution,
which dragged inconclusively for six years.
[CASE] U.S. (LAURA B. JANES) v. MEXICO
Held: Where it appeared that eight years had already elapsed and the known
murderer of an American national had not yet been arrested and punished, Mexico
was ordered to pay damages to the US.
Responsibility does not immediately attach to the state upon showing of a failure to
prevent or redress an injury to aliens.
1. Direct state responsibility
Where the international delinquency was committed by superior government
officials or organs like the chief of state or the national legislature, liability
will attach immediately as their acts may not be effectively prevented or
reversed under the constitution and laws of the state.
2. Indirect state responsibility
Where the offense is committed by inferior government officials or, more so,
by private individuals, the state will be held liable only if, by reason of its
Based on the book International Law by Cruz (2003 Edition) | This material has not been proofread.
indifference in preventing or punishing it, it can be considered to have
connived in effect in its commission.
EXHAUSTION OF LOCAL REMEDIES
Even assuming the liability of the state for an international delinquency, its
enforcements cannot be claimed by the injured foreigner unless he first
exhausts all available local remedies for the protection or vindication of his
rights.
• This is corollary of the principle that the foreigner must accept the
institutions of the state as he finds them
• The state must be given an opportunity to do justice in its own regular way
and without unwarranted interference with its sovereignty by other states
• “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.”
When this requirement is dispensed with: If there are no remedies to exhaust, as
• Where the laws are intrinsically defective
• There is laxity or arbitrariness in their enforcement
• Where the courts are corrupt
• Where there is no adequate machinery for the administration of justice
• From so-called “acts of state” which are not subject to judicial review
RESORT TO DIPLOMATIC PROTECTION
If the injured foreigner has exhausted all local remedies but without success, he may
then avail himself of the assistance of his state – but only if he has a state.
In theory, an injury to an alien is a violation not of his own personal right but of the
right of his state to have its nationals protected whenever they are in a foreign country.
It follows that where the injured alien is stateless, his case will be one of damnum
absque injuria and cannot be the subject of diplomatic protection.
The tie of nationality is required to exist from the time of the injury until the time
the international claim is finally settled. Once this tie is broken, the claim itself is
deemed automatically abated.
• This requirement may yet yield to the growing view that the individual as
such should be allowed to institute an international claim against a foreign
state for violation of his own personal rights. As it is now, it is already
subject to the exception that the United Nations may file a diplomatic
claim on behalf of its officials, as affirmed in the case of Count Folke
Bernadotte, who was assassinated while mediating the Palestinian crisis. It
is noteworthy also that under the European Convention on Human Rights,
the European Commission on Human Rights and also contracting states
other than the state of the injured individual may bring alleged infractions of
the convention before the European Court of Human Rights.
AMB Notes 2017 | Page 37 of 54
ENFORCEMENT OF CLAIM • The practice of most states now is to regulate the immigration and stay of
aliens and to provide for their deportation whenever warranted.
An international claim for damages may be resolved through negotiation or, if this Arrangements may also be made, in proper cases, for the extradition of
fails, any of the other methods of settling disputes, like good offices, arbitration, and alien fugitives
judicial settlement. There have been cases also where hostile and forcible
measures have been employed and when war itself has been resorted to as a Deportation – the removal of an alien out of the country, simply because his presence
means of compelling compliance with the demands of the injured state. is deemed inconsistent with the public welfare, and without any punishment being
imposed or contemplated, either under the laws of the country out of which he is sent,
In the event that the responsibility of the state is established or acknowledged, the or under those of the country to which he is taken
duty to make reparation will arise. Such reparation may take the form of restitution
or, where this is not possible, satisfaction or compensation, or all three of these [CASE] HARVEY v. SANTIAGO
together. Thus, the settlement may consist of the restoration or replacement of the Held: Every sovereign power has the inherent power to exclude aliens from its
object of the offense, a formal apology by the delinquent state and payment of territory upon such grounds as it may deem proper for its self-preservation or public
damages as well. interest. The power to deport aliens is an act of State, an act done by or under the
authority of the sovereign power. It is a police measure against undesirable aliens
AVOIDANCE OF STATE RESPONSIBILITY whose continued presence in the country is found to be injurious to the public good
and the domestic tranquility of the people.
The doctrine of state responsibility is applied more frequently to tortious rather than
contractual liability because of the unwillingness of most states to act as “collection EXTRADITION
agencies” for their nationals entering into private agreements with or in foreign
countries. Extradition – the surrender of a person by one state to another state where he is
wanted for prosecution or, if already convicted, for punishment
Calvo Clause – a stipulation sometimes incorporated by the local state to avoid
intervention of alien’s state where the alien waives or restricts his right to appeal to his Extradition Deportation
own state in connection with any claim arising from the contract and agrees to limit Effected at the request of the state of Unilateral act of the local state
himself to the remedies available under the laws of the local state. origin
Based on offenses generally committed Based on causes arising in the local state
• Lawful condition of a contract insofar as it requires the alien to exhaust the in the state of origin
remedies available in the local state Calls for the return of the fugitive to the Undesirable alien deported to a state
• May not be interpreted to deprive the alien’s state of the right to protect or state of origin other than his own or the state of origin
vindicate his interests in case they are injured in another state as such
waiver can legally be made not by him but by his own state BASIS OF EXTRADITION

[CASE] U.S. (NORTH AMERICAN DREDGING CO.) v. MEXICO
Issue: May an alien lawfully make such promise as embodied in the Calvo clause?
Held: 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.
EXCLUSION OF ALIENS
Exclusion – the denial of entry to an alien
• Banning all aliens altogether is not regarded as sound policy since it would
provoke retaliation in kind and ultimately isolate its nationals from the rest of
the international community
• Conversely, permitting their unlimited influx might pose a danger to the
welfare and security of the admitting country
The extradition of a person is required only if there is a treaty between the state of
refuge and the state of origin.
• In the absence of such a treaty, the local state has every right to grant
asylum to the fugitive and to refuse to deliver him back to the later state
even if he is its national.
• If, notwithstanding the right to refuse to deliver him back, the surrender
requested is still effected by the state of asylum, it is not because of a
demandable duty on its part but in pursuance of policy or as a gesture of
comity. It is not unusual for states to render assistance to each other in the
apprehension of criminals who have fled their respective jurisdictions
FUNDAMENTAL PRINCIPLES OF EXTRADITION
1. Extradition is based on the consent of the state of asylum as expressed
in a treaty o manifested as an act of goodwill

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 2. Under the principle of specialty, a fugitive who is extradited may be tried
only for the crime specified in the request for extradition and included in the
list of offenses in the extradition treaty
• If he is charged with any other offense committed before his
escape, the state of refuge – and not the accused – has a right to
object; nevertheless, the prosecution will be allowed if the
extraditing state agrees or does not complain
3. Any person may be extradited, whether he be a national of the requesting
state, of the state of refuge or of another state
• The practice of many states now, however, is not to extradite their
own nationals but to punish them under their own laws in
accordance with the nationality principle of criminal jurisdiction
• [CASE] TOURVILLE CASE
A British subject who, after murdering his wife in the Tyrol,
escaped to his home in England but was extradited back to
Austria where he was convicted and hanged
4. Political and religious offenders are generally not subject to
extradition
• [CASE] IN RE MEUNIER
Facts: An admitted anarchist fled to England after bombing a
Paris restaurant and a military barracks.
Held: Extraditable since he was considered not a political
offender but an enemy of all governments. In order to constitute
an offense of a political character, there must be two or more
parties in the state, each seeking to impose the government of
their own choice on the other.
• Attentat clause – the murder of the head of state or any member
of his family is not to be regarded as a political offense for
purposes of extradition
• Neither, under the Genocide Convention, is the crime of
genocide, which may consist of any of the following acts,
committed with intent to destroy, in whole or in part, a national,
ethnical, racial or religious group as such:
i. Killing members of the group
ii. Causing serious bodily or mental harm to members of
the group
iii. Deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in who
or in part
iv. Imposing measures intended to prevent births within
the group
v. Forcibly transferring children of the group to another
group
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• Under the Universal Declaration of Human Rights: “Everyone has
the right to seek and enjoy in other countries asylum from
prosecution.” However, “this right may not be invoked in the case
of prosecutions genuinely arising form non-political crimes or from
acts contrary to the purposes and principles of the United Nations.”
5. In the absence of special agreement, the offense must have been
committed within the territory or against the interests of the
demanding state
• [CASE] NILLINS CASE
Facts: Extradition of one Nillins to Genr
6. The act for which the extradition is sought must be punishable in both the
requesting and requested states under what is known as the rule of
double criminality.
PROCEDURE OF EXTRADITION
Ø A request for the extradition of the fugitive is presented through diplomatic
channels to the state of refuge
o This request will be accompanied by the necessary papers
relative to the identity of the wanted person and the crime he is
alleged to have committed or of which he has already been
convicted
Ø Upon receipt of the request, the state 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
Ø If there is a prima facie case, a warrant of surrender will be drawn and the
fugitive will be delivered to the state of origin
[EXAMPLE] ADOLF EICHMANN CASE
Facts: Adolf Eichmann was kidnapped 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.
Held: Such acts are not allowed under international law as they constitute a violation
of the territorial integrity of the state of refuge.
[CASE] SAVARKAR CASE
Facts: A prisoner en route to India escaped in a French port but was apprehended by
a local policeman and delivered back to the British authorities. France later demanded
the prisoner’s return on the ground that a formal request for his extradition should
have been made.
Held: Great Britain is under no obligation to comply as the abduction or arrest of the
wanted individual had been effected by or with the help of the nationals of the state of
refuge itself.
[CASE] SECRETARY OF JUSTICE v. LANTION
AMB Notes 2017 | Page 39 of 54
Facts: The Supreme Court originally sustained the demand of Mark Jimenez to be
informed of the charges against him in the US request for his extradition.
Held: On Motion for Reconsideration, the decision was reversed, also by an 8-6 vote,
on the ground that such charges were still being evaluated and no complaint for
extradition had as yet been filed in court.
CHAPTER 17: SETTLEMENT OF INTERNATIONAL DISPUTES
Dispute – according to Kelsen, exists when one state claims that another state should
behave in a certain manner and that claim is rejected by the latter
International dispute – an actual disagreement between states regarding the
conduct to be taken by one of them for the protection or vindication of the interests of
another
Situation – the initial stage of a dispute; where the disagreement has not yet been
sufficiently formulated and defined
A dispute is:
• Legal – if it involves justiciable rights based on law or fact susceptible of
adjudication by a judicial or arbitral tribunal
Example: A conflict on the interpretation of a treaty or the ascertainment of
the boundaries of adjacent states
• Political – if it cannot be decided by legal processes on the basis of the
substantive rules of international law because the differences of the parties
spring from animosities in their mutual attitudes rather than from an
antagonism of legal rights
Example: If one state, in the exercise of its sovereign rights, enacts
immigration laws discriminating against the nationals of another state over
the latter’s protests. The solution to such a dispute lies not in the councils of
the courts but in the corridors of diplomacy
METHODS OF SETTLING DISPUTES
Disputes are required to be settled, conformably to one of the basic principles of the
United Nations, “by peaceful means in such a manner that international peace and
security, and justice, are not endangered.”
International Court of Justice – closest approach in the international society to
provide an adequate machinery for the peaceful settlements of disagreements but its
jurisdiction is not general or obligatory; its competence to act is dependent on the
consent of the parties involved
Security Council – powers are also markedly limited except when international peace
and security are endangered. In this event, its intervention may be forcibly imposed by
it moto proprio, but even then its effectiveness may be hampered by disunity
among the Big Five, each of which has the power of veto
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General Assembly – it is not only inhibited from discussing any dispute at the
time under consideration by the Security Council but its rather large and politics-
oriented membership generally prevents an objective and dispassionate solution to
an international conflict
AMICABLE METHODS
Note: Except for negotiation, they all involve the participation of a third party, such as
a state or a prestigious statesman or jurist. These methods may also be availed of by
the parties independently of the United Nations, or upon its recommendation or
direction, or with its active participation
The amicable methods of settling disputes are:
1. NEGOTIATION – generally the first step taken in the settlement of an
international dispute, is the discussion undertaken by the parties themselves
of their respective claims and counterclaims with a view to their just and
orderly adjustment
• Where the talks prosper and agreement is reached, it is usually
formalized in a treaty or, more directly, effected through the
rectification of the injury caused to the claimant state
2. INQUIRY – an investigation of the points in question, on the theory that their
elucidation will contribute to the solution of the differences between the
parties
• The findings of an impartial and conscientious body making the
inquiry are not conclusive upon the disputing states but they
nevertheless may exert a strong moral influence in the
settlement of the conflict
• [CASE] DOGGER BANK CASE
Facts: Russian vessels fired in a fog on the English fishing fleet
off Dogger Bank during the Russo-Japanese War and caused the
death of two fishermen, injuries to other and considerable
destruction of property. Russia maintained that the firing was due
to the approach of Japanese torpedo boats.
Finding of the commission of inquiry created: There were no
torpedo boats present at the time of the incident and, as a result,
Russia agreed to pay £65,000 to Great Britain.
3. GOOD OFFICES – a method by which a third party attempts to bring the
disputing states together in order to enable them to discuss the issues in
contention and arrive at an agreement. This is usually employed when the
parties are no longer on speaking terms, that is, when they have severed
diplomatic relations or have actually commenced hostilities.
• Example: The Russo-Japanese War was terminated through the
good offices of President Theodore Roosevelt of the US who
AMB Notes 2017 | Page 40 of 54
 succeeded in bringing the parties together to the conference table o The jurisdiction of the Court is not compulsory but
for the conclusion of a negotiated peace dependent on the agreement of the parties to submit to
and be bound by its decisions
4. MEDIATION – more active involvement than good offices; by means of o Such consent may be manifested in a treaty containing
which the third party does not merely provide the opportunity for the what is called the Compromissary Clause which
antagonists to negotiate but also actively participates in their discussions in empowers the Court to settle disputes arising from the
order to reconcile their conflicting claims and appease their feelings of interpretation or the application of such treaty, or
resentment through the so called Optional Jurisdiction Clause in
Article 36 of the Statute which provides:
• The suggestions of the mediator are merely persuasive and may
be rejected without offense by the parties to the dispute “2. The states parties to the present Statute
may at any time declare that they recognize
5. CONCILIATION – unlike mediation, the services of the conciliator are not as compulsory ipso facto and without special
offered by the third party but solicited by the parties in dispute agreement, in relation to any other state
accepting the same obligation, the jurisdiction
• The recommendations made by the conciliator are likewise not of the Court in all legal disputes concerning:
binding
a. The interpretation of a treaty;
6. ARBITRATION – the solution of a dispute by an impartial third party, usually b. Any question of international law;
a tribunal created by the parties themselves under a charter known as the c. The existence of any fact which, if
compromise, which will provide for, among others: established, would constitute a
o The composition of the body and the manner of the breach of an international
selection of its members obligation;
o Its rules of proceedings and sometimes even the law to d. The nature or extent of the
be applied by it reparation to be made for the breach
o The issues of fact or law to be resolved of an international obligation.

• The proceedings are essentially judicial and the award is, by 3. The declarations referred to above may be
previous agreement, binding on the parties to the dispute, unlike made unconditionally or on condition of
in conciliation reciprocity on the part of several or certain
states, or for a certain time.”
7. JUDICIAL SETTLEMENT
• In the event any party to a case files to perform the obligations
Judicial Settlement Arbitration incumbent upon it under a judgment rendered by the Court, the
Nature of proceedings other party (may be done together):
Binding character of the decisions o Have recourse to the Security Council, which may, if it
Disputes submitted for adjudication are legal rather than political deems necessary, make recommendations or decide
The judicial tribunal is, generally The arbitral tribunal is an ad hoc upon measures to give effect to the judgment
speaking, a pre-existing and body created and filled by the o Announce the fact of compliance and appeal to world
permanent body parties to the dispute themselves opinion to persuade the losing litigant to abide by the
decision
Jurisdiction is usually compulsory Submission to arbitration is
voluntary
8. RESORT TO REGIONAL AND INTERNATIONAL ORGANIZATIONS –
The law applied is independent of The law applied may be limited by
resorted to by the parties on their own volition or taken by the body itself at
the will of the parties the parties
its own instance if allowed by agreement of the members
• International Court of Justice – where the judicial settlement of
• Several such organizations now exist in the various regions of the
international disputes is now entrusted, which superseded the
world but with varying degrees of effectiveness depending on
Permanent Court of International Justice under the defunct
their respective charters. One of the declared objectives of the
League of Nations
Association of South East Asian Nations (ASEAN), for example, is

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 “to promote peace and stability through abiding respect for justice
and the rule of law in the relationship among countries of the
region and adherence to the principles of the United Nations
Charter.”
HOSTILE OR NON-AMICABLE METHODS
These methods are not only unfriendly but may even involve illegal and coercive acts
and are usually imposed upon weak countries by strong powers. Nevertheless, they
are regarded as mild alternative compared to war, in the sense that they may avoid
the necessity of creating a more serious state of hostilities which might not be justified
by the nature of the dispute.
Hostile methods of settling disputes:
1. RETORSION – any action taken in “retaliation where the acts complained of
do not constitute a legal ground of offense but are rather in the nature of
unfriendly acts but indirectly hurtful to the other states”
• The act of retaliation is also unfriendly but not illegal and may be
in kind or of a different nature than the act that provoked it
• Examples of retorsions:
o Severance of diplomatic or consular relations
o Suspension of commercial intercourse
o Boycott
o Stoppage of travel to the other state
o Denunciation of treaties
o Imposition of higher tariffs and other trade barriers
o Currency restrictions
o Denial of loans and withdrawal of privileges previously
enjoyed
o Recognition of a rival government
o Adverse propaganda
2. REPRISAL – an act of self-help on the part of the injured state, responding
after an unsatisfied demand to an act contrary to international law on the
part of the offending state
• They have the effect of suspending momentarily in the relations of
the two states the observance of this or that rule of international
law
• They are limited by the experience of humanity and the rules of
good faith, applicable in the relation of state with state
• The would be illegal if a previous act contrary to international law
had not furnished the reason for them
• They aim to impose on the offending state reparation for the
offense or the return to legality in avoidance of new offenses
• [CASE] NAULILAA INCIDENT ARBITRATION
Facts: During World War I, a party of German officials and
officers crossed into the neutral Portuguese colony of Angola to
Based on the book International Law by Cruz (2003 Edition) | This material has not been proofread.
discuss the purchase of food supplies from the Portuguese. Due
to a misunderstanding caused by language difficulties, an
altercation arose during the discussion as a result of which three
of the Germans were killed and another one was interned by the
Portuguese. The German authorities did not communicate with
the Portuguese government but in alleged reprisal German troops
later attacked and destroyed certain forts and posts in Angola.
Held under arbitration: The death of the Germans at Naulilaa
was not the consequence of acts contrary to international law
imputable to either German or Portuguese authorities, either civil
or military, but was purely fortuitous, being the result of
misunderstanding and “of a certain impudence” on the part of the
German officials. Adding that there has been evident
disproportion between the incident of Naulilaa and the six acts of
reprisals which followed it, the tribunal concluded that the
reprisals were unlawful in view of the lack of sufficient occasion,
of previous demand and of admissible proportion between the
alleged offense and the reprisals taken.
Among the more common forms of reprisals are:
a. Display of force
Example: When the US Mediterranean Fleet proceeded to and
deployed along the coasts of Turkey in 1903 pending compliance
with the demand for the return of an American national kidnaped
by a Turkish bandit
b. Occupation of territory
Example: When Italy seized the Greek island of Corfu in 1923 for
the murder of certain Italian officers in Greece
c. 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
Example: Action taken by Holland against Venezuela in 1908
d. 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
Example: Done by the Great Powers against Greece in 1886 to
dissuade it from going to war against Turkey
3. INTERVENTION
THE UNITED NATIONS
AMB Notes 2017 | Page 42 of 54
United Nations – may be asked or may decide on its own authority to take a hand in
its settlement in the event that none of the methods succeeds in settling the dispute or
even if they are not employed
Ø The task is addressed principally to the Security Council but may, when
the occasion requires, be taken over by the General Assembly under certain
conditions
Ø Jurisdiction of the Security Council:
a. All disputes affecting international peace and security
b. All disputes which, although coming under the “domestic
jurisdiction clause,” have been submitted to it by the parties for
settlement
Ø The disputes may be brought to the Security Council by:
o The Security Council itself, on its own motion
o The General Assembly
o The Secretary-General
o Any member of the United Nations
o Any party to the 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
settlements under the Charter
Ø STEP 1. Settle by any peaceful means
The Charter of the United Nations provides that the Security Council shall,
in the first instance, when it deems it necessary, call on the parties to settle
the dispute by any peaceful means in their own choice
Ø STEP 2. Recommend appropriate measures
In case they are unable to adjust their differences by themselves through
the peaceful methods suggested, the Security Council may recommend
appropriate measures or methods of adjustment, taking into consideration:
a. Any amicable measures already adopted by the parties
b. That legal disputes should be as a rule be referred to the
International Court of Justice
Ø STEP 3. Recommend actual terms of settlement
If these measures also prove unavailing, the Security Council may
recommend such actual terms of settlement as it may consider appropriate.
This last step is in the nature of a compulsory settlement of the dispute
which the parties are under obligation to abide by in the interest of
international peace and security
Ø STEP 4. Drastic steps
Where the terms of settlement are rejected by any of the parties, the
Security Council is empowered to take more drastic steps, to wit-
1. Preventive action
Based on the book International Law by Cruz (2003 Edition) | This material has not been proofread.
It may adopt such measures not involving the use of armed force,
such as complete or partial interruption of economic relations and
of rail, sea, air, postal, telegraphic, radio and other means of
communication, and severance of diplomatic relations
2. Enforcement action
Should the preventive action measures be proved 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 include demonstrations, blockades, and other
operations by air, sea, or land forces of members of the United
Nations
• To enable the United Nations to take urgent military measures, members
shall hold immediately available national air-force contingents for combined
international enforcement action. The strength and degree of readiness of
these contingents and plans for their combined action shall be determined,
within the limits laid down in the special agreement or agreements referred
to in Article 34, by the Security Council with the assistance of the Military
Staff Committee
o Military Staff Committee – consists of the chiefs of staff of the
permanent members of the Security Council or their
representatives
§ Supposed to advise and assist the Security Council on
all questions relating to its military requirements for the
maintenance of international peace and security, the
employment and command of forces placed at its
disposal, the regulation of armaments, and possible
disarmament
§ Also responsible under the Security Council for the
strategic direction of any armed forces placed at the
disposal of the said Council
Uniting for Peace Resolution – adopted by the General assembly in 1950 due to the
existing possibility that failure of unity among the Big Five will render the Security
Council impotent in the solution of international disputes; the veto cast by any of the
permanent members will prevent agreement on a matter
• This Resolution provides that “if the Security Council, because of lack of
unanimity of the permanent members, fails to exercise its primary
responsibility for the maintenance of peace and security in any case where
there appears to be threat to the peace, breach of peace, or act of
aggression, the General Assembly shall consider the matter
immediately with a view to making recommendations to the members
for collective measures, including in the case of breach of the peace or act
of aggression, the use of armed forces when necessary, to maintain or
restore international peace and security.”
• If not in session at the time, the General Assembly may meet in emergency
special session within 24 hours of the request therefor either by any
AMB Notes 2017 | Page 43 of 54
 nine members of the Security Council or by a majority of the members
of the United Nations
• International “police force” – established on November 4, 1956 by the
General Assembly conformably to the Uniting for Peace Resolution; which is
under the United Nations command to supervise the area involved in the
Suez Canal crisis, in which two of the permanent members of the Security
Council were directly involved
o “The Force would be limited in its operations to the extent that
consent of the parties concerned is required under generally
recognized international law. While the General Assembly is
enabled to establish the Force with the consent of those parties
which contribute units to the Force, it could not request the Force
to be stationed or operate on the territory of a given country
without the consent of the Government of that country. This does
not exclude the possibility that the Security Council could use
such a Force within the wider margins provided under Chapter VII
of the United Nations Charter.”
Some conflicts the Security Council has intervened in the exercise of its peace-
keeping functions:
• Palestine and Israel in 1948
• India and Pakistan on the Kashmir case in 1948
• Indonesia and Netherlands in 1948 and 1949
• North and South Korea in 1950
• Congolese Republic and the Katangans in 1960
• Britain, France and Israel against Egypt on the Suez Canal in 1956
• Middle East war between the Jews and the Arabs
The Iraqi Crisis
The invasion of Iraq by the combined forces of the United States, Britain and Australia
provoked worldwide protests led by France, Russia and China, all members of the Big
Five contending that the attack was without authorization from the Security Council
CHAPTER 18: WAR
War, defined
• As a specific action: An armed contention between the public forces of
states or other belligerent communities, implying the employment of
violence among the parties as a means of enforcing their respective
demands upon each other
• As a specific status: 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
War ≠ employment of force or vice versa
• Employment of force not resulting to war: in the case of reprisal like a
pacific blockade
Based on the book International Law by Cruz (2003 Edition) | This material has not been proofread.
• War without employment of force: 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 never
resorted to in their mutual dealings
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
OUTLAWRY OF WAR
War was originally accepted as a legitimate means of compulsion, provided, according
to some writers, that it was a reaction to an international delict, i.e., it was a just war or
bellum justum.
Attempts to suppress war:
• Covenant of the League of Nations
• Kellogg-Briand Pact of 1928 or the General Treaty for the Renunciation of
War
• Charter of the United nations
o Preamble: “determined to save succeeding generations from the
scourge of war which twice in our lifetime has brought untold
sorrow to mankind”
o Members are called upon to abstain from the use of force
o Non-members comply with its declared principles “so far as may
be necessary for the maintenance of international peace and
security”
o Only two instances when use of force is allowed:
§ Inherent right of self-defense (Article 51)
§ Enforcement action that may be decreed by the
Security Council (Article 42)
LAWS OF WAR
Important laws of war that are supposed to be observed in the conduct of armed
hostilities:
1. The Declaration of Paris of 1856, concerning warfare at sea
2. The Hague Conventions of 1899, concerning the use of expanding bullets
and asphyxiating gases
3. The Hague Conventions of 1907, concerning the
a. Opening of hostilities
b. The laws and customs of warfare on land
c. Conversion of merchant ships into warships
d. The laying of automatic submarine contact mines
e. Naval bombardment in times of war
f. The discharge of projectiles from balloons
g. The adaptation to maritime warfare of the rules of the Geneva
Convention of 1864 relative to the treatment of the wounded in
land warfare
h. The rights and duties of neutrals in land warfare
AMB Notes 2017 | Page 44 of 54
 i. The rights and duties of neutrals in naval warfare
4. The Geneva Convention of 1925, concerning the use of asphyxiating,
poisonous and other gases and of bacteriological methods of warfare
5. The Geneva Convention of 1929, concerning the treatment of the sick and
wounded and of 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
a. Amelioration of the sick and wounded on land
b. Amelioration of the sick and wounded and of shipwrecked
members of the armed forces at sea
c. Treatment of prisoners of war
d. Protection of civilian persons in war
8. The Nuclear Nonproliferation Treaty
The commonly accepted sanctions to enforce above-mentioned agreements:
1. Protest lodged by one belligerent, usually accompanied or followed by an
appeal to world opinion against the unlawful acts of warfare committed by
the other belligerent
2. Reparation for damages caused by the defeated belligerent
3. Punishment of war criminals
4. Reprisals (often mentioned but doubtful if they can be justified at present
inasmuch as they are essentially unlawful acts taken by one belligerent
against the also illegal acts of the other)
COMMENCEMENT OF WAR
The Hague Conventions of 1907 provide that hostilities “must not commence without a
previous and explicit warning, in the form either of a reasoned declaration of war or of
an ultimatum with conditional declaration.”
War is supposed to commence on the date it is communicated to the enemy
• Often not observed, e.g., Pearl Harbor attack in 1941
o In such cases, the rule is that war is supposed to commence from
the moment of the first act of force committed by one state with
intent of making war or committed without such intent but
considered by the other state as constituting war
War may start
• With a declaration of war
• With the rejection of an ultimatum
• With the commission of an act of force regarded by at least one of the
belligerents as an act of war
EFFECTS OF THE OUTBREAK OF WAR
1. The laws of peace cease to regulate the relations of the belligerents and are
superseded by the laws of war. Third states are governed by the laws of
neutrality in their dealings with the belligerents
Based on the book International Law by Cruz (2003 Edition) | This material has not been proofread.
2. 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 alliance, are automatically
cancelled, but those which are precisely intended to operate during war,
such as one regulating the conduct of hostilities between the parties, are
activated. Multipartite treaties dealing with technical or administrative
matters, like postal conventions, are deemed merely suspended as between
the belligerents
4. Individuals are impressed with enemy character
a. Under the nationality test, if they are nationals of the other
belligerent, wherever they may be
b. Under the domiciliary test, if they are domiciled aliens in the
territory of the other belligerent, on the assumption that they
contribute to its economic resources
c. Under the activities test, if, being foreigners, they nevertheless
participate in the hostilities in favor of the other belligerent
Corporations and other juridical persons, on the other hand, are
regarded as enemies if a majority or a substantial portion of their
capital stock is in the hands of enemy nationals or if they have
incorporated in the territory or under the laws of the other belligerent
5. Enemy public property found in the territory of the other belligerent at the
outbreak of hostilities is, with certain exceptions, subject to confiscation.
Enemy private property may be sequestered, subject to return,
reimbursement or other disposition after the war in accordance with the
treaty of peace
COMBATANTS AND NON-COMBATANTS
Combatants – technically are those who engage directly in the hostilities
Non-combatants – those who do not; should not be subjected to attack as they are
not supposed to participate in the actual fighting
Distinction has been blurred by the methods of modern warfare, owing largely to the
increased destructive power of the new weapons, like the intercontinental ballistic
missiles, and the activities of many persons who, while not attached to the armed
forces, perform services essential to the war effort
The following are regarded as combatants:
1. The members of the armed forces, whether pertaining to the army, the navy
or the air force, except those not actively engaged in combat, such as
chaplains and medical personnel
2. The irregular forces, such as the francs tireurs or the guerrillas, provided
that
AMB Notes 2017 | Page 45 of 54
 a.They are commanded by a person responsible for his
subordinates
b. They wear a fixed distinctive sign recognizable at a distance
c. They carry arms openly
d. They conduct their operations in accordance with the laws and
customs of war
3. The inhabitants of unoccupied territory who, on approach of the enemy,
spontaneously take arms to resist the invading troops without having had
time to organize themselves, provided only that they carry arms openly and
observe the laws and customs of war. This is often referred to as levee en
masse
4. The officers and crew of merchant vessels who forcibly resist attack
Combatants when captured
They are entitled to treatment as prisoners of war, which includes inter alia the rights
to be accorded to
1. Proper respect commensurate with their rank
2. To adequate food and clothing
3. To safe and sanitary quarters
4. To medical assistance
5. To refuse to give military information or render military service against their
own state
6. To communicate with their families
Non-combatants do not enjoy identical rights when captured but are nevertheless
protected from inhumane treatment under the Geneva Convention of 1949 relative to
the treatment of civilian persons in time of war
CONDUCT OF THE HOSTILITIES
Three basic principles underlie the rules of warfare:
1. Principle of Military Necessity
The belligerents may, subject to the other two principles, employ any
amount and kind of force to compel the complete submission of the enemy
with the least possible loss of lives, time and money
This principle is invoked to justify the atom bombing of Hiroshima and
Nagasaki, the argument being that more lives would have been lost if this
drastic measure had not been taken and an American invasion of the
Japanese mainland had been attempted
Other measures under this principle
• Sieges
• Blockades
• Bombardments
• Devastation of property, which may involve direct hardships on
the non-combatants within the area affected
Based on the book International Law by Cruz (2003 Edition) | This material has not been proofread.
2. Principle of Humanity
Prohibits the use of any measure that is not absolutely necessary for the
purposes of the war such as
• Poisoning of wells and weapons
• Employment of dumdum or expanding bullets and asphyxiating
gases
• Destruction of works of art and property devoted to religious or
humanitarian purposes
• Bombarding of undefended places
• Attack of hospital ships
• Pillage
ü When an enemy vessel is sunk, the other belligerent must see to
the safety of the persons on board
ü The wounded and the sick must be humanely treated without
distinction of nationality by the belligerent whose power they are
ü A combatant who surrenders may not be killed
ü Agreements relating to the treatment of prisoners of war
3. Principle of Chivalry
The basis of such rules as those that require the belligerents to give proper
warning before launching a bombardment or prohibit the use of perfidy in
the conduct of hostilities
Prohibits
• 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 the
other belligerent
• Espionage notwithstanding that the practice involves deceit
Allows
• Ruses and strategems of war provided they do not involve the
employment of treacherous methods, such as the illegal use of
Red Cross emblems to throw the enemy off-guard prior to an
attack
Spy – an individual acting clandestinely or under false pretenses, who
obtains, or seeks to obtain, information in the zone of operations of a
belligerent, with the intention of communicating it to the hostile party
• Subject to the municipal law of the other belligerent except that,
as provided in the Hague Conventions of 1907, “a spy taken in
the act cannot be punished without previous trial”
• If he succeeds in rejoining his army and is later captured incurs
no responsibility for his previous acts of espionage and is entitled
to be treated as a prisoner of war
AMB Notes 2017 | Page 46 of 54
 o Not a spy: scouts, or soldiers in uniform who penetrate the zone
of operations of a hostile army to obtain information, and when
captured, should be treated as prisoners of war
KINDS OF WARFARE
Warfare may be waged on
• Land
Rules on land warfare have remained substantially unaltered and deal
generally with the treatment of combatants on the battlefield and the
obligations incumbent on the troops making an attack, siege or
bombardment
One important rule is that booty, or personal property found in the battlefield,
is subject to confiscation by the belligerent state except only the personal
belongings of the individual combatants which have no military value, such
as jewelry
• Sea
The most serious difficulties lie in the disagreement among states as to
whether armed merchant vessels are subject to direct attack and the
general violation of the rules against the laying of unanchored mines and
the misuse of submarines and torpedoes
• Air
Most of the rules on aerial warfare have become obsolete and need to be
revised to make them conform to present realities. For instance, the Hague
Conventions of 1899 prohibited “for a term of five years, the launching of
projectiles and explosives from balloons or by other new methods of a
similar nature”
Theatre of war – the place where the hostilities are actually conducted
Region of war – the greater area where the belligerents may lawfully engage each
other; this would comprise their own territories and the open seas, excluding only
neutral territories
BELLIGERENT OCCUPATION
Territory is deemed occupied when it is actually placed under the authority of the
hostile army, but this occupation is limited only to the area where such authority has
been established and can be effectively exercised. Nevertheless, it is not necessary
that every square foot of the territory in question be actually occupied, as it doubtless
suffices that the occupying army can, within a reasonable time, send detachment of
troops to make its authority felt within the occupied district
• Belligerent occupation does not result in the transfer or suspension of the
sovereignty of the legitimate government although it may at the moment be
unable to exercise it
Based on the book International Law by Cruz (2003 Edition) | This material has not been proofread.
o Hence, the belligerent occupant cannot perform such acts as
declaring the independence of the occupied territory or requiring
its inhabitants to renounce their allegiance to the lawful
government
• The belligerent is required to restore and ensure public order and safety
while respecting, unless absolutely prevented, the laws in force in the
country
o This is particularly true with regard to family honor and rights, the
lives of persons, private property, and religious convictions and
practice
• The belligerent occupant, whenever necessary, may promulgate new laws,
non-political as well as political, provided they do not contravene the
generally accepted principles of international law
o The political laws are automatically abrogated upon the end of the
occupation
o The non-political laws may continue even beyond the occupation
unless they are expressly repealed or modified by the legitimate
government
§ Thus, after the Japanese occupation of the Philippines,
General Douglas McArthur issued a proclamation
declaring null and void all laws, regulations and
processes of the enemy occupant
• The occupant is permitted to exact from the populace contributions over and
above the regular taxes for the needs of the army of occupation or for the
administration of the territory
• The occupant may, for valuable consideration, make requisitions of things or
services (excluding military) for the needs of the occupying forces
• No general penalty, pecuniary or otherwise, can be inflicted on the
population on account of the acts of individuals for which it cannot be
regarded as collectively responsible
• It is permitted for the belligerent occupant to introduce military currency,
provided the purpose is not to debase the country’s economy
o [CASE] HAW PIA v. CHINA BANKING CORPORATION
Ruling by PH SC: Upheld the validity of the payments made by
the plaintiff in Japanese military notes to settle a loan extended to
her in Philippine currency before the outbreak of the Pacific war
• Private property cannot be confiscated
o But those susceptible of military use may be seized, subject to
restoration or compensation when peace is made
o Considered private property and their destruction is expressly
forbidden: Property of municipalities and of institutions dedicated
to (even when state-owned)
§ Religion
§ Charity
§ Education
§ Arts and sciences
• The army of occupation can only take
§ Possession of cash
§ Funds and realizable securities which are strictly the
property of the state, depots of arms
AMB Notes 2017 | Page 47 of 54
 Means of transport
§ o
Stores and supplies
§ does not take advantage of his privileged position to commit an
Generally movable property belonging to the state
§ act of treachery
which may be used for military operations
o May be seized but must be restored and compensation fixed
when peace is made
§ All appliances, whether on land, at sea, or in the air,
adapted for the transmission of news, or for the
transport of persons or things, exclusive of cases
governed by naval law
§ Depots of arms
§ Generally all kinds of ammunition of war
• The occupying state shall be regarded only as administrator and
usufructuary of public buildings, real estate, forests, agricultural estates
belonging to the hostile state and situated in the occupied territory
o [CASE] BANAAG v. SINGSON ENCARNACION
Facts: A lease for five years was granted by the Philippine
Executive Commission in 1942 over certain municipal fisheries.
Ruling by PH SC: Deemed automatically cancelled upon the re-
establishment of the Commonwealth government.
POSTLIMINIUM
Postliminium or right of postliminy
• According to Vattel, is that in which persons or things taken by the enemy
are restored to the former state on coming actually into the power of the
nation to which they belong
• Broadened concept: imports the reinstatement of the authority of the
displaced government once control of the enemy is lost over the territory
affected
Thus, upon the end of a belligerent occupation, the laws of the re-established
government are revived and all acts taken by the belligerent occupant which it could
not legally do under the law of nations, as well as lawful acts of a political complexion,
are invalidated
Illustrations:
• Sale of land to third party – no valid title; may recover even without payment
of purchase price
• Taxes collected by occupation government – valid within lawful
competence; cannot be demanded by legitimate government
• Non-political acts – valid; remains even after the occupation
• Political acts – automatic loss of validity upon end of occupation
NON-HOSTILE INTERCOURSE
Relations between belligerents which are not strictly hostile:
• Flag of truce – a white flag carried by an individual authorized by one
belligerent to enter into communications with the other
Based on the book International Law by Cruz (2003 Edition) | This material has not been proofread.
Bearer or parlementaire – entitled to involability as long as he
o However, the other belligerent is not obliged to receive a flag of
truce
• Cartels – agreements to regulate intercourse during war on such matters as
postal and telegraphic communication, the reception of flags of truce, and
the exchange of prisoners
o Cartel ship – a vessel sailing under a safe conduct for the
purpose of carrying exchanged prisoners of war
• Passport – a written permission given by the belligerent government or its
authorized agent to the subjects of the enemy state to travel generally in
belligerent territory
• Safe-conduct – a pass given to an enemy subject or to an enemy vessel
allowing passage between defined points
o This is given either by belligerent government or by the
commander of the area within which it is effective
• Safeguard – a protection granted by a commanding officer either to enemy
persons or property within his command
o When it is enforced by a detail of men, they must use extreme
measures, if necessary to fulfill their trust, and are themselves
exempt from attack or capture by the enemy
• License to trade – a permission given by the competent authority to
individuals to carry on trade even though there is a state of war
o General license – grants to all the subjects of the enemy state or
to all its own subjects the right to trade in specified places or in
specified articles
o Special license – grants to a certain person the right to trade in
the manner specified in his license
SUSPENSION OF HOSTILITIES
• Suspension of arms – a temporary cessation of the hostilities by
agreement of the local commanders for such purposes as the gathering of
the wounded and the burial of the dead
• Armistice – 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
o Example: A general armistice preceded the termination of World
War I with the surrender of Germany and its allies
Armistice Suspension of arms
Purpose is political Purpose is military
May be concluded only by the May be agreed upon by the local
AMB Notes 2017 | Page 48 of 54
 commanders-in-chief of the commanders
belligerent governments
Usually in writing May be oral
• Cease-fire – an unconditional stoppage of hostilities by order of an
international body like the U.N. Security Council for the purpose of
employing peaceful means of settling the differences between the
belligerents
• Truce – sometimes used interchangeably with armistice but is now
generally regarded as a cease-fire with conditions attached
• Capitulation – the surrender of military forces, places or districts in
accordance with the rules of military honor
TERMINATION OF WAR
War may be terminated:
• By simple cessation of hostilities
o Property or territory in the possession of the respective
belligerents upon the termination of war is retained by them in
accordance with the principle of uti possidetis
§ This is to be distinguished from the usual stipulation for
the status quo ante, which calls for the complete
restoration to their former owners of property or territory
that may have changed hands during the hostilities,
with the exception only of prize and booty
Examples:
o Sweden and Poland in 1716
o France and Spain in 1720
o Spain and its American colonies in 1825
o France and Mexico in 1862-67
• By the conclusion of a negotiated treaty of peace
o Where the belligerents may be unable to effect a decisive victory
against each other and may decide finally to settle their
disagreement
Example:
o Great Britain and the United States when they terminated the War
of 1812 with the conclusion of the Treaty of Ghent
• By the defeat of one of the belligerents followed by a dictated treaty of
peace or annexation of the conquered country
o Conditional surrender – a treaty of peace is concluded embodying
the conditions specified in the surrender
o Unconditional surrender – the victorious belligerent usually issues
a unilateral decision announcing the end of the war, to be
followed with a peace treaty dictated by it and specifying the rules
Based on the book International Law by Cruz (2003 Edition) | This material has not been proofread.
on the settlement of the obligations of the vanquished state and
the disposition of its territories
§ However, it is not possible always to conclude a peace
treaty of this nature because the defeated belligerent
may cease to have any legal standing or existence, as
happened when the Southern Confederacy was simply
absorbed by an again became a part of the United
States after the American civil war
Precise date of the ending of war is not easily fixed in view of the different methods of
terminating the state of hostilities
The last war ended with the (in these cases, it must be stressed, determination of the
date of the end of the war was made in light of the intent of the parties as manifested
in their contracts):
• September 2, 1945 – signing of the treaty of surrender by the Japanese
Armed Forces at Tokyo Bay
• December 31, 1946 – official proclamation of peace terminating the Greater
East Asia War
• September 8, 1951 – signing of the San Francisco Peace Treaty
• April 28, 1952 – ratification of the Treaty of Peace concluding the Greater
East Asia War
AFTERMATH OF WAR
• Implied judgment, right or wring, that the vanquished belligerent is the guilty
party in the dispute that cased the hostilities
• The treaty of peace imposed by the victor upon the defeated state is
regarded as a punishment and is sustained on that ground although marked
by the vice of duress that normally would invalidate other agreements
• The “sentence” thus rendered, with the active if reluctant acquiescence of
the vanquished state, will impute to it responsibility for the war and compel it
to acknowledge the obligation to pay reparations for injuries and losses
suffered by the victorious state
• Nationals of the vanquished state may be protected and punished as war
criminals and for other violations of international law
o In these actions, they may not escape responsibility on the
ground that they were merely acting on orders of their state. The
state itself is liable for issuing such orders and the individuals for
obeying them provided a moral choice was possible
Principles of the Nuremberg Charter and Judgment
I. Any person who commits an act which constitutes a crime under
international law is responsible therefore and liable to punishment.
II. The fact that internal law does not impose a penalty for an act which
constitutes a crime under international law does not relieve the person who
committed the act from responsibility under international law.
AMB Notes 2017 | Page 49 of 54
 III. The fact that a person who committed an act which constitutes a crime
under international law acted as Head of State or responsible
government official does not relieve him from responsibility under
international law.
IV. The fact that a person acted pursuant to order of his Government or of a
superior does not relieve him from responsibility under international law,
provided a moral choice was in fact possible to him.
V. Any person charged with a crime under international law has the right to a
fair trial on the facts and law.
VI. The crimes hereinafter set out are punishable as crimes under international
law:
a. Crimes against peace:
i. Planning, preparation, initiation or waging of a war of
aggression or a war in violation of international treaties,
agreements or assurances;
ii. Participation in a common plan or conspiracy for the
accomplishment of any of the acts mentioned under (i).
b. War crimes:
Violations of the laws or customs of war which include, but are not
limited to, murder, ill-treatment or deportation to slave labor or for
any other purpose of civilian population of or in occupied territory;
murder or ill-treatment of prisoners of war or persons on the Seas,
killing of hostages, plunder of public or private property, wanton
destruction of cities, towns, or villages, or devastation not justified
by military necessity.
c. Crimes against humanity:
Murder, extermination, enslavement, deportation and other
inhumane acts done against any civilian population,
or persecutions on political, racial, or religious grounds, when
such acts are done or such persecutions are carried on in
execution of or in connection with any crime against peace or any
war crime.
VII. Complicity in the commission of a crime against peace, a war crime, or a
crime against humanity as set forth in Principle VI is a crime under
international law.
[CASE] YAMASHITA v. STYER
Facts: The Commanding General of the Imperial Japanese Forces in the Philippines
was convicted of war atrocities by a military commission and sentenced to death by
hanging. He questioned his trial and conviction on the ground that the military
commission had no authority or jurisdiction to try him, but the sentence was affirmed
by the Philippine Supreme Court and later by the U.S. Supreme Court.
Based on the book International Law by Cruz (2003 Edition) | This material has not been proofread.
Ruling by the US SC inter alia: It is evident that the conduct of military operations by
troops whose excesses are unrestrained by the orders or efforts of their commander
would almost certainly result in violations which it is the purpose of the law of war to
prevent Its purpose to protect civilian population and prisoners of war from brutality
would largely be defeated if the commander of an invading army could with impunity
neglect to take reasonable measures for their protection. Hence, the law of war
presupposes that its violation is to be avoided through the control of the operations of
war by commanders who are to some extent responsible for their subordinates.
CHAPTER 19: NEUTRALITY
Neutral state – it does not take part, directly or indirectly, in a war between other
states. If recognized by the belligerents, this condition gives rise to rights and
obligations between them and the neutral state in their mutual relations
• Such concepts as imperfect neutrality and qualified neutrality, which were
accepted before, have now become obsolete
• The general policy at present is to recognize only perfect or absolute
neutrality, which imports that the third state does not take sides in any way
whatsoever when other states are at war
o Strict adherence to this view has become hardly practicable,
however, If not impossible
§ The techniques of modern warfare and advances in
international commerce have inextricably involved third
states in the hostilities, often against their will
§ The compulsion of present-day international politics
make it difficult for nations to maintain a strictly impartial
attitude in the face of conflicts that, although they may
not be actually parties thereto, will unavoidably affect
their own future and security
§ The provisions of the UN Charter which obligate
member states to participate in enforcement action in
cases of threat to or actual breach of the peace of the
world. While technically not regarded as war, this so-
called police action has drastically revised the
traditional understanding of neutrality
NEUTRALITY NEUTRALIZATION
Dependent solely on the attitude of the Result of a treaty wherein the duration
neutral state, which is free to join any of and the other conditions of the
the belligerents any time it see fit neutralization are agreed upon by the
neutralized state and other powers
Governed by the general law of nations This agreement governs the conduct of
the signatories
Obtains only during war Intended to operate in time of peace as
well as in time of war
Only states may become neutral Portions of states, like islands, rivers and
canals, may be neutralized
AMB Notes 2017 | Page 50 of 54
 LAWS OF NEUTRALITY
The more important rules on neutrality are found in:
• The customary law of nations
• In such conventions as
o The Declaration of Paris of 1856
o The Hague Conventions of 1907
o The unratified Declaration of London of 1909
These rules define:
1. The relations of the belligerent states with the neutral state
2. The relations of the belligerent states with the nationals of the neutral state
RELATIONS OF BELLIGERENT STATES AND NEUTRAL STATES
Generally speaking, a neutral state has the right and duty to:
1. Abstain from taking part in the hostilities and from giving assistance to either
belligerent
2. Prevent its territory and other resources from being used in the conduct of
hostilities by the belligerents
3. Acquiesce in certain restrictions and limitations that the belligerents may
find necessary to impose, especially in connection with international
commerce
The belligerents, on the other hand, are bound to:
1. Respect the status of the neutral state, avoiding any act that will directly or
indirectly involve it in their conflict
2. Submit to any lawful measures it may take to maintain or protect its
neutrality
These rights and duties apply only between the belligerents and the neutral state and
do not extend to the acts and omissions of the nationals of the neutral state
USE OF NEUTRAL TERRITORIES
War activities by or on behalf of any of the belligerents may not be undertaken in the
territory of the neutral state without infringement of its neutrality
Neutral territory is:
• Inviolable
• Cannot be used by the belligerents for the (all these acts should be resisted
by the neutral state, with armed force if necessary, and such resistance is
not to be regarded as a hostile act):
o Movement of their troops
o Transport of war supplies
o Erection of wireless stations for exclusively military purposes
o Recruiting of soldiers
o Undertaking of military operations in general
Based on the book International Law by Cruz (2003 Edition) | This material has not been proofread.
When belligerents may use neutral state:
• Passage of sick and wounded troops provided personnel and materials of
war are not also carried
• Persons bound for enlistment in the belligerent armies may cross the neutral
frontiers if they do so individually or separately and not as a body
• Neutral state itself may give refuge to troops from the belligerent forces 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 a place of residence if they are allowed to remain
Passage of warships or prizes of belligerents through a neutral state
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
• The usual duration of the sojourn is 24 hours but this may be shortened or
extended, depending on the reason for the entry
• The vessel must leave as soon as it has been re-provisioned
• It can take only so much fuel or supplies as it will need until it reaches the
nearest of its own ports
• Improvement of the weather or completion of the repairs that made the entry
necessary are cues for departure
o General rule on repairs: The repairs should be permitted so long
as they are not intended to increase the fighting force of the
vessel
• Where vessels from both belligerents are in neutral waters at the same time,
a period of 24 hours must elapse between the departure of the first vessel
and the departure of the second, the order being determined by their time of
arrival
• No more than three vessels from any belligerent shall be allowed
simultaneously in the same neutral port or waters
• The territorial waters of a neutral state must never be used as asylum for
belligerent vessels under pursuit or attack by the enemy
o 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 out to sea for the duration of the war, its officers and crew
being interned by the neutral state
• If a prize is captured in neutral waters, or brought thereto without
justification, it is the duty of the neutral state to release it and to inform the
prize crew of the captor ship
• Passage of military aircraft belonging to the belligerents is not allowed
across the airspace of a neutral state
o Where a belligerent aircraft is forced to land on neutral territory,
the same should be detained and its officers and crew interned
USE OF NEUTRAL FACILITIES AND SERVICES
A neutral state is prohibited from given belligerents any form of direct assistance in
connection with the conduct of the hostilities
AMB Notes 2017 | Page 51 of 54
 • Carrying contraband
A neutral state may not: • Attempting to breach a blockade
• Send military contingents
• Extend loans Vessels may be captured as prize if they are:
• Sell, for valuable consideration, supplies of war to either or both of the • Engaged in hostile activities
belligerents • Resist visit and search
• (Not) obliged to prevent the export from or transit through its territory of war • If there is reasonable suspicion that they are liable to confiscation
supplies from private traders by the belligerents in the ordinary course of • Cargo of these vessels may also be captured under certain conditions, as
commerce when they are contraband
o It is required to take reasonable diligence in preventing the
delivery of vessels constructed and armed in its territory for use Prize
by any of the belligerents • Not confiscated summarily but must be brought to a prize court for
o [CASE] ALABAMA CLAIMS CASE adjudication
Ruling: Great Britain was held liable for damages to the United • Prize court – a tribunal established by a belligerent under its own laws, in
States for violation of this duty. its territory or the territory of its allies, and applies rules of international law
in the absence of special municipal legislation
Action taken by United States in favor of the Allied Powers prior to its actual • Title to the prize vests in the captor upon confirmation by the prize court of
entry in 1941 into World War II the validity of the capture
In 1940, it transferred fifty “out-of-date” destroyers to Great Britain in exchange for the o Exception: Title to the prize vests immediately upon capture when
use of certain naval bases in British territory and, the following year, was able to the vessels or goods are public enemy property
extend more material aid to the same country by virtue of the “Lend-Lease Act,” which
authorized the President to lend, lease or otherwise make available American war In the Declaration of Paris of 1856, the following rules on the treatment of sea-borne
supplies to any belligerent when in his opinion such measure was necessary to the goods in time of war were agreed upon:
security of the United States. Those acts were a violation of the traditional laws of 1. Enemy goods under a neutral flag are not subject to capture, except
neutrality. Nonetheless, they were sought to be justified on the ground that they were contraband of war
vital to the future defense of the United States in view of the expected adverse 2. Neutral goods under an enemy flag are not subject to capture, except
repercussions upon it of a possible Axis victory. contraband for war
RELATIONS OF BELLIGERENT STATES WITH CONTRABAND
NATIONALS OF NEUTRAL STATES
Contraband – is the term applied to goods which, although neutral property, may be
Common practice: Neutral states enact legislation designed to avoid their involvement seized by a belligerent because they are useful for war and are bound for a hostile
in foreign wars as a result of the acts of their nationals destination
• Not imposed by international law, for neutral states are free to allow their
nationals to deal, in their private capacity, with any of the belligerents Categories of contraband:
• If, for instance, these nationals enlist in a belligerent army or engage in
commerce with any of the belligerents, the neutrality of their state is not 1. Absolute contraband – necessarily useful for war under all circumstances,
thereby compromised in the absence of special rules imposing upon the like rifles and ammunition
neutral state the duty of intervening in the transaction
• Except for these, international law considers the relationship as strictly 2. Conditional contraband – have both civilian and military purposes, like
between the individual and the belligerent states and whatever hardships food and clothes
may be suffered by its nationals as a result thereof must, as a rule, be
acquiesced in by the neutral state Note: Absolute contraband are subject to seizure so long as they are bound
for enemy or enemy-held territory, but conditional contraband may be
VISIT AND SEARCH seized only when it can be shown that they are destined for the armed
forces or the authorities of the belligerent government. But this distinction
Belligerent warships and aircraft have the right to visit and search neutral merchant has lost much of its practical value, because most wartime importations are
vessels on the high seas for the purpose of determining whether they are in any way not government-controlled due to currency stipulations.
connected with the hostilities, e.g.:
• Performing unneutral service

Based on the book International Law by Cruz (2003 Edition) | This material has not been proofread. AMB Notes 2017 | Page 52 of 54
 Doctrine of Ultimate Consumption – goods intended for civilian use which
may ultimately find their way to and be consumed by the belligerent forces
are also liable to seizure on the way
Also, the classification between contraband and free goods is continuously
changing, largely as a result of advances in modern science which has
devised new military uses for articles which were before regarded as
innocuous or innocent
3. Free-list – includes goods useful for war and bound for the belligerents but
exempted from the law on contraband for humanitarian reasons, like
medicines and medical supplies for the use of the sick and the wounded
Some rules on contraband:
• Contraband are subject to condemnation
o Effect on innocent goods belonging to the same owner shipped
together with the contraband: may also be confiscated under the
Doctrine of Infection
o Effect on the vessel carrying the contraband: some states
consider it confiscable if the contraband are more than ½ of the
total cargo by weight, value, freight or volume
• Contraband are liable to capture from the time they leave the port in which
they are loaded and until they reach their final hostile destination
o However, merchant vessels have resorted to the pretense of
stopping at an intermediate neutral port, where the goods are
unloaded so as to give the appearance that they were actually
destined for this port, although they are subsequently loaded
again, either on the same vessel or on another vehicle, for final
shipment to their real belligerent destination. The vessel is thus
able to acquire immunity during its voyage from the port of origin
to the intermediate neutral port and becomes liable to capture
only from the time of its departure from the latter port and until its
arrival at the belligerent port
To counteract this subterfuge, belligerents have applied:
§ Doctrine of Ultimate Destination – the liability of
contraband to capture is determined not by their
ostensible but by their real destination
Even if the vessel intends to stop at an intermediate
neutral port, it will still be considered as in one
continuous voyage provided it can be shown that its
cargo will ultimately be delivered to a hostile destination
§ [CASE] SPRINGBOK CASE
Facts: A cargo of a British vessel was en route to a
neutral port but its real destination was a blockaded
port.
Based on the book International Law by Cruz (2003 Edition) | This material has not been proofread.
Ruling: Liable to condemnation. We cannot doubt that
the cargo was originally shipped with intent to violate
the blockade; that the owners of the cargo intended that
it should be transshipped at Nassau to a smaller vessel
more likely to succeed in reaching safely a blockaded
port than the Springbok: that the voyage from London
to the blockaded port was, as to cargo, both in law and
in the intent of the parties, one voyage; and that the
liability to condemnation, if captured during any part of
the voyage, attached to the cargo from the time of
sailing.
o Doctrine of Continuous Voyage – when the goods are reloaded at
the intermediate port on the same vessel
o Doctrine of Continuous Transport – when they are reloaded on
another vessel or other form of transportation
BLOCKADE
Blockade – a hostile operation by means of which the vessel and aircraft of one
belligerent prevent all 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 the
place from international commerce and communication with other states
• It differs form a pacific blockade, in that the latter applies only to the
vessels of the blockaded state and does not affect the vessels of other
states
To be valid, a blockade must be:
1. Binding – duly communicated to the neutral states
2. Effective – maintained by adequate force so as to make ingress to or egress
from the port dangerous
3. Established by the proper authorities of the belligerent government
(generally the head of state)
4. Limited only to the territory of the enemy and not extended to neutral places
or international rivers
5. Impartially applied to all states alike
Liability of a neutral vessel to capture for breach of blockade
The liability is contingent on its knowledge, actual or presumptive, of the blockade and
continues as long as it is pursued by the ships of the blockading force after it has left
or tried to enter the blockaded port If the pursuit is abandoned or the blockade is lifted,
capture of the ship can no longer be effected
Vessel found guilty of breach of blockade
Liable to condemnation, and so is the cargo unless it is proved that at the time it was
shipped the owner neither knew nor could have known of the intention to violate the
blockade
AMB Notes 2017 | Page 53 of 54
Practice during the last two World Wars radically revised the operational concept of 1. That the property is in the territory under the control or jurisdiction of the
blockade and has reduced the traditional rules to relatively minor importance today. belligerent
Instead of confining themselves to the ports and coasts of the enemy, the belligerents 2. That there is urgent necessity for the taking
established the so-called “long distance blockades” over their respective “war zones” 3. That just compensation is paid to the owner
and “defense areas” which they heavily laid with mines and within which neutral
shipping was made subject to their permission. Great Britain, for example, developed On the purpose of angary being achieved through eminent domain
the system of “navicerts,” by means of which neutral shippers might avoid the delays It is claimed that expropriation cannot be exercised over property that is only
incident to visit and search in British control ports by applying for clearance regarding temporarily, and usually over the owner’s objection, under the control of the belligerent.
the character of their shipments and their destination. Moreover, the expropriated property is never taken for the purpose of destroying it

UNNEUTRAL SERVICE TERMINATION OF NEUTRALITY

Unneutral service – consists of acts, of a more hostile character than carriage of Neutrality is terminated:
contraband or breach of blockade, which are undertaken by merchant vessels of a
neutral state in aid of any of the belligerents 1. When the neutral state itself joins the war
The hitherto neutral state will be governed by the laws of war in its relations
According to the Declaration of London, and as generally accepted, a neutral vessel is with the other belligerents and by the laws of neutrality in its relations with
liable to condemnation for unneutral service: all other states

1. If it is making a voyage special with a view to the transport of individual 2. Upon the conclusion of peace
passengers who are embodied in the armed forces of the enemy or with a All states with again be governed by the laws of peace
view to the transmission of information in the interest of the enemy, or

2. If with the knowledge of the owner, or the one who charters the entire vessel,
or of the master, it is transporting a military detachment of the enemy or one
or more persons who, during the voyage, lend direct assistance to the
operations of the enemy

Note: The cargo, if belonging to the owner of the vessels, is likewise

confiscable.

A neutral vessel is also liable to condemnation and to be treated as a merchant

vessel of the enemy:
1. If it takes a direct part in the hostilities
2. If it is under the orders or control of an agent placed on board by the enemy
government
3. If it is chartered entirely by the enemy government
4. If it is at the time and exclusively either devoted to the transport of enemy
troops or the transmission of information in the interest of the enemy

Note: The goods belonging to the owner of the vessel are likewise liable to
condemnation.

ANGARY

Right of Angary – a belligerent may, upon payment of just compensation, seize, use
or destroy, in case of urgent necessity for purposes of offense or defense, neutral
property found in its territory, in enemy territory, or on the high seas

Requisites:

Based on the book International Law by Cruz (2003 Edition) | This material has not been proofread. AMB Notes 2017 | Page 54 of 54