NOTES

ON

PUBLIC

INTERNATIONAL

LAW
 2

SOURCES:

1.PUBLIC INTERNATIONAL LAW

By: Jovito R. Salonga
Pedro L. Yap
3rd Edition 1966

2. INTERNATIONAL LAW and

WORLD ORGANIZATIONS
By: Edgardo L. Paras
1968 Edition

3. PUBLIC INTERNATIONAL LAW

By: Jose M. Aruego
1978 Revised Edition

4. INTERNATIONAL LAW AND

WORLD POLITICS
By: E. Paras
1994 Revised Edition
 3

I Preliminary Considerations (General Nature, Basis and Scope of

International Law)

II Source of International Law

III Subjects of Public International Law

IV Recognition of State and Government

V Succession of States and Governments

VI The Position of States in International Law

VII Territory of States

VIII Jurisdiction of States

IX Responsibility of States Regarding Aliens

X Jurisdictional Assistance Between States

XI Nationality, Citizenship and Statelessness in International Law

XII Diplomatic Intercourse

XIII Consuls

XIV Treaties and International Agreements

XV World Organization: The United Nations

XVI Pacific Settlement of International Disputes

XVII Forcible Measures Short of War in Settling International Disputes

XVIII War

XIX Neutrality

CHAPTER I
Preliminary Considerations
(General Nature, Basis and Scope of International Law)
*****

Broadly speaking, INTERNATIONAL LAW may include both “Public International Law”
and “Private International Law.”
 4

The term, however, is generally understood to cover only public international law, that
is, the law which seeks to regulate primarily the relations of States, since private
international law is not really international but merely a part of municipal or national law.
The latter is more appropriately called “Conflict of Laws,” a separate subject prescribed in
the curriculum of law.

DEFINITIONS OF INTERNATIONAL LAW

Various definitions of international law are offered by different authorities, as follows:

Wilson: - Public International Law is the body of generally accepted principles

governing relations among States. (Wilson, Handbook of International Law)

Lawrence: - Public International Law may be defined as the rules which determine the
conduct of the general body of civilized states in their mutual dealings. (Lawrence,
Principles of International Law)

Hackworth: - International Law consists of a body of rules evolving for the most part
out of experience and necessity, which governs the relations between States. (Hackworth,
Digest of International Law)

McDougal: - International Law is not a pre-existing body of rules, but a

comprehensive process of authoritative decisions in which rules are continuously made and
remade. (Mc Dougal and Associates, Studies in World Public Order)

It is noted that while authorities differ in their definitions, most are anchored on the
subjects regulated by it, namely: STATES.

But modern international law practice has widened the scope of the subject as to
include many entities (not States) which have been invested with some degree of
international personality, and even private individuals.

A MORE ACCURATE DEFINITION – conformably to the facts of international life, a

more accurate definition would seem to be: - “International Law is that body of rules and
principles which are recognized as legally binding and which govern the relations of States
and other entities invested with international legal personality.” (Salonga and Yap, Public
International Law)

Schwarzenberger: - “International Law is the body of legal rules which apply

between Sovereign States and such other entities as have been granted international
personality.”

Aruego: - “International Law is a body of principles, rules, and customs governing the
mutual relations of States and others which are considered international persons.” (Aruego,
Public International Law)

Jacobini: - “Public International Law (or the Law of Nations) may be defined as the
rules, based on the natural moral law and on consent, which govern the relations of
sovereign sates and other international persons.” (Jacobini, International Law)

DISTINGUISHED FROM PRIVATE INTERNATIONAL OR CONFLICT OF LAWS

 5

Private International Law has been defined as “that part of the law of each States which
determines whether in dealing with a factual situation involving a foreign element, the law
of some other States will be recognized.” (Salonga, Private International Law)

This Definition of “Private International Law” stems from the fact that “The division of
the world into different territorial units, each with its own system of law, implemented by
its own scheme of law on enforcement and administration, has given rise to problems in
what is currently and conveniently called “private international law” or “conflict of laws.” An
event or transaction involving private individuals or entities may touch two or more States
or territorial units. As the municipal laws of States respecting both matters are often in
conflict with each other, a body of principles has been evolved for avoiding or setting such
conflict.” (Salonga, Private International Law)

The DISTINCTION between Public International Law and “Private International Law (or,
Conflict of Laws) may be stated thus:

1. The rules of Public International Law are international in nature; those of Private
International Law are national or municipal in character.

2. In case of dispute or conflict in Public International Law, recourse is had to international

modes of settlement; in Private International Law, the recourse is to municipal
tribunals.

Traditionalists, following the theory that only States may be considered as the subject of
public international law (a concept which, as stated earlier, is no longer valid) would put
forward at least two more distinctions, as follows:

1. That public international law deals with States, while private international law deals with
individuals; and

2. That public international law regulates relations between States, whereas private
international law is concerned with transactions which are strictly private in nature and
in which the State as such generally has no interest.

INTERNATIONAL LAW DISTINGUISHED FROM OTHER DISCIPLINES

In some early writings on the subject, international law is considered synonymous with
international morality and ethics, and at other times with comity. A few writers represent
international law as merely a part of diplomacy. It may be well therefore to clearly distinguish
international law from other disciplines.

INTERNATIONAL MORALITY OR ETHICS embodies the principles which govern

international relations from the higher standpoint of conscience, morality, justice and
humanity. (Hershey, Essentials of International Public Law and Organizations)

INTERNATIONAL COMITY, though having a limited meaning in private international

law, refers to those rules of politeness and courtesy observed by States in their mutual
intercourse.

Violations of the rules of international morality or ethics and international comity do not
constitute formal grounds for complaint. In other words, they are not justiciable, however
objectionable the action of the violator may be. On the other hand, violations of the rules of
international law constitute grounds for legal, justiciable claims. (Hershey, Essentials of
International Public Law and Organization)
 6

Satow (Diplomatic Practice) defines DIPLOMACY as “the application of intelligence and

tact to the conduct of official relations between independent States.”

INTERNATIONAL DIPLOMACY, therefore, relates to objects of national or

international relations. It is generally based upon considerations of expediency or international
interest rather than those of courtesy, humanity, and sometimes even antagonistic to
recognized rules and principles. Diplomats exercise a wider discretion and fell less bound by
legal checks and moral standards in the realm of international policy than within the field of
international law. (Hershey)

POLICY, particularly when it has long been pursued by a state and well respected by
other States, is sometimes confused with law. A good example is the so-called Monroe
Doctrine. Although long maintained by the United States and observed by other States, it is
not part of international law.

“INTERNATIONAL ADMINISTRATIVE LAW” – This a fast developing field of law regarded

as a branch of public international law, held to include (a) the body of rules laid down by
international conventions relating to such matters as postal services, telecommunications, rail
and road transport, aviation, traffic on international rivers, sanitation and health, prevention of
crime, literary and aristic rights, etc.; (Eagleton, International Government) and (b) the body
of rules applicable to the internal legal relations of international organizations. (Ibid)

BASIS OR FOUNDATION OF PUBLIC INTERNATIONAL LAW (Why are the rules of

international law regarded as binding? In short, what is the basis of the obligation in
international law?)

There are at least three important schools of thought to the basis or foundation of
Public International Law. (The Natural Law School; The Positivist School; and the Electic
School.)

THE NATURAL LAW SCHOOL: - This theory postulates the natural moral law as the
basis of Public International Law. The natural moral law may be said to be the voice of
conscience, a rule of human conduct implanted by God in the very nature of man. Thru this
law, a man is supposed to do whatever is right and to avoid whatever is evil. x x x Laws not in
conformity with the moral nature of man cannot be binding on sovereign States. (Samuel Von
Pufendorf, Classics of International Law) x x x This law, that is, the Law of Nature, is
fundamentally unchangeable and must be discovered through right reason and applied by
analogy from man to State. (Pound, Social Contract Law)

THE POSITIVIST SCHOOL

Advocates of this school of thought insist that the only basis of Public International Law
is the common consent of states forming the community of nations. x x x To the Positivists,
international law is a law between nations, rather than a law over nations. Hence the usual
description of international law as a “Law of Co-ordination, a law between nations rather than
a law of subordination”. (Briggs)

THE ELECTRIC (GROATIAN) SCHOOL

(Derived from Hugo Grotius, The “father of Internatinal Law”)

Advocates of this school of thought occupy a middle position between the Naturalists
and the Positivists. This group has adopted the distinction drawn by Grotius between natural
law and positive law, but unlike Grotius who tended to give greater weight to the law of
 7

nature than to positive law, they have treated both as of about equal importance. x x x This
school seems to enjoy the support of the majority of publicists and writers. (Salonga)

IS INTERNATIONAL LAW TRUE LAW?

If by law we mean, following the definition of the English school of analytic and positive
jurisprudence founded by Bentham and Austin, a rule of conduct laid down for the guidance of
an intelligent being by another intelligent being having power over him, then international law
is not true law.

But if by law we mean, following the definition of the school of historical jurisprudence
founded by the German jurist Savigny and the English jurist Sir Henry Maine, any rule
recognized as a binding rule and observed as such, then international law is true law. (Aruego)

Two sides discussed as follows:

1. – The objections to considering international law a true law by the English school of
analytic and positive jurisprudence fall under three main heads:

(a) The law of nations lacks the quality of positive authority or command, for it is
not the general command of a determinative legislator or legislative body with
power to enforce its decisions.

(b) There is no legal duty or obligation of obedience on the part of those to whom it
is addressed, for there are no courts or judicial tribunals to interpret and enforce
this so-called law.

(c) There is no penalty prescribed for disobedience and consequently, it lacks

sanction or physical power to enforce obedience. It is claimed by this school that
international law is a branch of ethics rather than of jurisprudence.

2. – In answer thereto, the school of historical jurisprudence contends that such definition
of law by Bentham and Austin is true only of statutory law, but not of customary law
which long antedates statutory law. (Fenwick, International Law)

The concept of law as a command emanating from a determinate authority is narrow and
does not give an adequate explanation of law in the modern State. (Hershey, op. cit.) “It is
now generally agreed that the Austinian view of law is formal, narrow, arbitrary, unhistorical
and unphilological.”

In the first place, the essence of law is its function, rather than the form in which it is
created or the method by which it is enforced. A study of primitive societies shows that there
can be law where no sovereign, as conceived by Austin, exists. Thus, in Crime and Customs
(Hershey, supra) Malinowski finds that even in primitive societies, there are rules behind which
the whole community throws the whole weight of its organization (Ibid)

In the second place, Austin’s view that there must be sanction in the sense of a definite
threat by a determinate person before a rule may be called “Law,” ignores the fact that there
are today many “rules of law” without those sanctions Austin had in mind. Much of law is
enabling or permissive, not restrictive or prohibitive. Furthermore, law is obeyed because of its
acceptance by the community. The most desirable rules found in statute books are being
ignored, if not flouted, daily because they have not met with the acceptance of the group
upon whom they are supposed to be imposed. On the other hand, there are rules of law
without any specific sanction but which are followed religiously because the community
 8

recognizes that, if violated, the legal order itself will break down. In the words of one
authority, “we cannot say a priori that a particular rule is law only if it has a specific sanction –
the test is whether it is regarded as law by the particular legal order in question.” (Paton,
Jurisprudence)

RELATION BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW

(Doctrine and Practice)

DOCTRINE – From the point of view of doctrine, there are two schools of legal theory
– dualist and monist – concerning the distinction between international and municipal law.

According to DUALISTS, International Law and Municipal Law are essentially different
from each other.

Firstly, the sources of international law are custom grown up among States and treaties
concluded by them; the sources of municipal law are custom grown up within the States’
jurisprudence and legislation enacted by the States’ lawmaking authority.

Secondly, international law regulates relations between States, while municipal law is
concerned with individuals in their relations with each other and with States.

Thirdly, international law is not a law above, but between sovereign States, whereas
municipal law is a law of a sovereign over individuals subject to its authority.

Hence, according to dualist theory, international law can never operate as the law of
the land save through municipal custom or legislative enactment. (Salonga, 11)

The MONIST VIEW: - The monists, on the other hand, deny that the subjects of the
two systems of law are essentially different and maintain that in both instances it is individual
persons who in the ultimate analysis are regulated by the law. Monistic doctrine asserts that
international law and municipal law, far from being essentially different, must be regarded as
part of the same juristic conception. According to this doctrine, international law is superior to
municipal law; it is international law which determines the jurisdictional limits of the personal
and territorial competence of States. (Salonga, 12)

It is to be noted that the relation between international law and municipal law has also
engaged the attention of both national and international tribunals. In the jurisprudence of
international tribunals, the principle of the supremacy of international obligations over national
law has found repeated expression.

For instance, in Advisory Opinion No. 17 (Greece and Bulgaria, Communities’ Case) the
Permanent Court of International Justice held that “it is a generally accepted principle of
international law that in the relations between Powers who are contracting Parties to a treaty,
the provisions of municipal law cannot prevail over those of the treaty. (P.C.I.J. Pub. Ser. B,
No. 17, p. 32; Salonga, 12)

In another Advisory Opinion (Treatment of Polish Nationals at Danzig), the same court
laid down that a State cannot adduce against another State its own constitution in order to
evade obligations incumbent upon it under international law. (P.C.I.J. Pub. Ser. A/B, No. 44;
Salonga, 12)

PRACTICE – In the municipal sphere, the status of international law is determined by

the constitutional practice of the individual States. (Salonga, 13)
 9

Some States follow the so-called DOCTRINE OF TRANSFORMATION, according to

which each rule of international law must be individually incorporated in municipal law, since
international law is by its nature inapplicable in the municipal sphere. “TRANSFORMATION”
is effected by a legislative act, which becomes the basis of the validity in the municipal sphere
of each individual rule of international law.

Other States have adopted the DOCTRINE OF INCORPORATION, according to

which the rules of international law form part of the law of the land. X x x Both this doctrine of
incorporation and the doctrine of transformation are postulated on the premises that the
enactment of international law in the municipal sphere depends on the will of the State
concerned. x x x Under the doctrine of incorporation, however, a specific act of
“transformation” of the individual rules of international law is not required before they can be
applied by domestic courts to specific legal situations within the State.

Thus, in West Rand Gold Mining Company vs. The King, [(1905) K.B. 391; Salonga, 13]
Lord Alvestone said:

“It is true that whatever has received the common consent of the civilized nations must
have received the assent of our country, and that to which we have assented along with other
nations in general mat properly be called International Law, and as such will be acknowledged
and applied by our municipal tribunals when legitimate occasion arises from those tribunals to
decide questions to which doctrines of International Law may be relevant.”

The same doctrine was expressed in the United States when the Supreme Court held in
the Pacquete Habana, [175 U.S. 677 (1900); Salonga, 13-14] that “International Law is part of
our law, and must be ascertained and administered by the courts of justice of appropriate
jurisdiction, as often as questions of right depending upon it are duly presented for their
determination.”

DOCTRINE OF INCORPORATION OBSERVED IN THE PHILIPPINES – The

doctrine of incorporation, although first formulated by English and American courts, is by no
means confined to Anglo-American jurisprudence. The courts of France, Belgium, Switzerland
and the Netherlands – to mention some – have for a long time taken the same position.

The doctrine has also found expression in the constitution of other countries, including
the Philippines, the Federal Republic of Germany, Italy and Argentina. (Preuss, op. cit.;
Salonga, 14)

The constitution of the Philippines states as one of its declared principles that:

“The Philippines renounces war as an instrument of national policy, adopts

the generally accepted principles of international law as part of the law of the
land and adhere to the policy of peace, equality, justice, freedom, cooperation,
and amity with all nations.” (Art. II, Sec. 2)

In accordance with the above constitutional provision, the highest court of the
Philippines has on many occasions invoked the rules of international law as a basis for its
decision.

For instance, in Borovsky vs. Commissioner of Immigration and Director of Prisons,

(G.R. No. L-4352 (1951); Salonga, 14] which involved the legality of a prolonged detention of
an alien pending his deportation, the Supreme Court, citing a similar provision in the 1935
Philippine Constitution, invoked the Universal Declaration of Human Rights adopted by the
United Nations General Assembly on 10 December 1948, in declaring the detention illegal.
 10

In Kuroda vs. Jalandoni, (83 Phil. 171) the petitioner, a former commanding general of
the Japanese Imperial Forces in the Philippines during World War II, was charged before a
Military Commission set up by Executive Order No. 68 of the President of the Philippines,
which also established a National War Crimes Office and prescribed rules and regulations
governing the trial of the accused war criminals. x x x Kuroda petitioned for a writ of
prohibition from the Supreme Court, directed against the Military Commission, alleging, among
others, that (a) Executive Order No. 68 was illegal and unconstitutional, and (b) that Military
Commission lacked jurisdiction to try him for the acts of the Hague and Geneva Conventions
(relating to war) as the Philippines was not a signatory to the first, and that it had signed the
second only in 1947 (long after the acts complained of had been committed). X x x HELD: -
(a) “Executive Order No. 68 is legal and constitutional-because Art. 2 of our Constitution
(19350 PROVIDES IN Sec. 3, that –

“The Philippines renounces war as an instrument of national policy, and

adopts the generally accepted principles of international law as part of the law of
the nation.”

In accordance with the generally accepted principles of international law of the present
day, including the Hague Convention and the Geneva Convention, and the significant
precedents of international jurisprudence established by the United Nations, all those persons,
military or civilian, who have been guilty of planning, preparing, or waging a war of aggression
and of the commission of crimes and offenses consequential and incidental thereto, in violation
of the laws and customs of war, of humanity and civilization are held accountable therefore.
Consequently, in the promulgation and enforcement of Executive Order No. 68, the President
of the Philippines acted in conformity with the generally accepted principles and policies of
international law which are part of our Constitution.

(b) With regard to the second contention, it cannot be denied that the rules and
regulations of the Hague and Geneva Conventions form part of and are wholly based on the
generally accepted principles of international law. In fact, these rules and regulations were
accepted by the two belligerent nations, the United States and Japan, who were signatories to
the two Conventions. Such rules and principles, therefore, form part of the law of our nation
even if the Philippines was not a signatory to the conventions embodying them, for our
Constitution has been deliberately general and extensive in its scope, and is not confined to
the recognition of rules and principles of international law as contained in treaties to which our
government may have been or shall be a signatory.”

CONFLICT BETWEEN PUBLIC INTERNATIONAL LAW

AND MUNICIPAL LAW

In the application of the principle that international law forms part of the municipal law
of the state, municipal tribunals may be confronted with situations in which an apparent
conflict exists between a rule of international law and the provisions of the Constitution or
statute of the State. Which shall prevail?

Practically, all municipal tribunals concur in the proposition that the statutes of the State
should be presumed to conform to the generally accepted principles of international law and
that courts, therefore, should exert every effort to construe a municipal statute so as not to
violate the law of the nations.

But should there be an unavoidable contradiction between a statute and a principle of

international law, how should the conflict be resolved?
 11

It has been said that the municipal law which is in conflict with a rule of international
law will often be given effect in municipal courts, the reason being that such courts are organs
of municipal law and are accordingly bound by it in all circumstances. (Morgenstern, loc. Cit.,
68; Salonga, 15)

The fact that international law has been made part of the law of the land does not by
any means imply the primacy of international law over national law in the municipal sphere.
Under the doctrine of incorporation as applied in most countries, rules of international law are
given a standing equal, not superior, to national legislative enactments. (Salonga, 15)

In the United States, a treaty, provided it is self-executing, is deemed to have the same
force and effect as an act of Congress. Thus a treaty amy repeal a statute and a statute may
repeal a treaty. [In re Central Costa Rica Petroleum Co. (Gt. Britain vs. Costa Rica); In re Royal
Bank of Canada (Gt. Britain vs. Costa Rica) 18 AJLL (1924), 147, 159, 160; Salonga, 16]

PHILIPPINE LAW ON THE MATTER

Philippine Courts have not made any pronouncements on the matter, but there seems
to be room for the view that Article II, Section 2, of the Philippine Constitution which declare
that the generally accepted principles of international law are “part of the law of the land” has
given such rules the standing of Constitutional Law, and that therefore, they should take
precedence over legislative enactments which deviate therefrom. (Salonga, 17, quoting the
view of German authorities to the effect that Art. 4 of the Constitution of the Weimar Republic,
which provided that “The universally recognized rules of International Law are considered as
binding constituent parts of German Federal Law,” gave the rules of international law adopted
to German law thereunder the standing of Constitutional law.)

SUGGESTED READING: - The Changing Law of Nations. (Salonga, 18-22) In The Far,
Far, Far Future. (Paras, 29-32)
 12

CHAPTER II
SOURCES OF INTERNATIONAL LAW

There is lack of agreement among writers as to the sources of international law.

Westlake enumerates only two: Custom and reason. (Westlake, 14-19; Salonga, 59)

Calvo (I Le Droit Int’l. Theorique et Pratique; Salonga, 59) mentions eleven: - Treaties,
works of publicists, diplomatic correspondence and State papers, decisions of prize courts,
decisions of national courts, laws and regulations of different States, decisions and mixed
arbitral tribunals, opinions of jurists, the Roman Law, and fundamental principles of justice and
divine law.

Wilson (38-44; Salonga, 59) lists six sources: custom, treaties and state papers,
decisions of international tribunals, decisions of national tribunals, such as prize courts, opinion
of text-writers, and diplomatic papers.

It may well be that semantics is at the base of the disagreement. If everyone of the
writers were agreed on the meaning of the term “SOURCE,” there would probably be less
confusion. Disagreement arises because “source” is identified variously with “cause,” or with
“evidence,” or with “basis” of international law.

SOURCES APPLIED BY THE INTERNATIONAL COURT OF JUSTICE

The most authoritative answer seems to be found in Art. 38 of the Statute of the
International Court of Justice, which enumerates the various rules applicable to the solution of
international dispute submitted to the Court.

Art. 38 of the Statute of the International Court of Justice provides that:

 13

“The Court, whose function is to decide in accordance with International Law such
disputes as are submitted to it, shall apply:

(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 by law;

© The general principles of law recognized by civilized nations x x x

(d) Judicial decisions and the teachings of the most highly qualified publicists of the
various nations, as subsidiary means for determination of rules of law.”

We may conclude, then, conformably to the Statute of the International Court of Justice
that the sources of international are “direct sources” and the subsidiary means.”

DIRECT SOURCES:

1. International Treaties or Conventions

2. International Custom

3. General Principles of Law recognized by civilized nations

SUBSIDIARY ( or, Secondary) SOURCES:

1. Judicial Decisions (International Tribunals)

2. Writings of Jurists (The most highly qualified publicists)

TREATIES. (As direct Source)

Treaties are the main instruments with which the international community is equipped
to carry out its multifarious transactions are, nowadays, by far the most abundant source of
international law. Also referred to as Interstate Agreements, treaties are of two kinds: “Law-
making treaty” and “contract treaty.”

LAW-MAKING TREATY – Its object is to formulate openly and specifically rules of

conduct which are meant to be binding on the members of the family of nations as a body, or
at least on all of them which are directly concerned with the matters referred to in the treaty.
(Aruego, 9-10)

Treaties that may conveniently be considered “Law-making,” and thus treated as a

source of general law, are those which a large number of States have concluded for any of the
following purposes:

(a) Declaring, confirming or defining their understanding of what the law is on a

particular subject;
 14

(b) Stipulating or laying down new general rules for future international conduct; or

© Creating some international institutions. (Brierly, 58; Salonga, 61)

This general law tends to become universal because other States not parties to the
treaty usually recognize, expressly or impliedly, its binding force.

Examples of “law-making treaties” are the Treaty of Paris of 1856, the Hague
Conventions of 1899 and 1907, the treaty of Versailles of 1919, the covenant of the League of
Nations of 1920, the United Nations Charter in 1945, and the agreements on the Law of the
Sea at Geneva in 1958, (The latest was signed by 119 countries in Jamaica on December 10,
1983)

CONTRACT TREATY – treaties which seek to regulate the relations between two or a
few States and are, as a rule, the source of “particular,” rather than “general” international
law. x x x This type of treaty consists generally of bilateral arrangements concerning matters
of particular or special interest to the contracting parties. (The defunct Military Bases
Agreement between the Philippines and the United States falls under this category.)

CUSTOM. – (International Custom) This is the original and the earliest source of
international law. x x x In international law a course of conduct may be usual, without being
customary. x x x Custom is more than mere habit or usage. Custom exists when a clear and
continuous habit of doing certain things develop under the conviction that ii is obligatory and
right. Where this conviction is absent, all that we have is merely usage. Usage ripens into a
custom, once the conviction is shared that it is legally obligatory and right.

The Law Merchant in the beginning merely consisted of usages of merchants, but these
later on “hardened into a cosmopolitan, often at positive variance with the principles of local
law, but none the less acquiesced in for mercantile transactions, and enforced by tribunals of
commanding eminence and worldwide reputation. (Jenks, Law and Politics of the middle Ages,
30; Salonga, 62)

Examples: Cabotage – the monopoly of a State in coastwise trade, shipping and

navigation; Angary – the right of a belligerent State, in time of war, to make use of the
property of neutral States, located within the territorial jurisdiction of the belligerent, upon
payment o reasonable and just compensation; The Maritime Zone – the strip of water along
the exterior coastline of a State within which its jurisdiction may be exercised.

GENERAL PRINCIPLES OF LAW

Although treaties and custom are the principal sources of international law, the States
parties to the Statute of the International Court of Justice recognize the existence of a third
source, independent of, but supplementary to, the first two sources, namely, “the general
principles of law recognized by civilized nations.”

It is said that this provision of the Court’s Statute has elevated the “general principles of
law” to the authority of one of the principal and formal sources of international law. x x x In
the absence of any applicable conventional or customary law, there would be at hand “a legal
rule or principle for the legal solution of any controversy.” (Lauterpacht, quoted by Salonga)

Further Comment and Observation: - The insertion of this provision in Article 38

has been taken to mean the explicit abandonment of the positivistic view, according to which
treaties and custom are the only sources of international law, and likewise the rejection of the
 15

naturalistic view, according to which the law of nature is the primary source of the Law of
Nations. x x x In Oppenheim’s opinion: this provision “amounts to the acceptance of the
Groatian view, which, while giving due – and on the whole, decisive – weight to the will of
States as the authors of International Law, does not divorce it from the legal experience and
practice of mankind generally.” (Oppenheim-Lauterpacht, 30-31; Salonga, 63) x x x Where a
principle is found to be generally accepted by civilized legal systems, it “may fairly be assumed
to be so reasonable as to the necessary to the maintenance of justice under any system.”
(Brierly, 63; Salonga, 63)

THE SECONDARY SOURCES OF INTERNATIONAL LAW

1. Judicial Decisions – Article 38 of the Statute of the International Court of Justice

provides that subject to certain limitations, the International Court of Justice shall apply
judicial decisions as subsidiary means fro the termination of rules of law. Although
Article 38 is subject to the provisions of Article 59 of the Statute which provides that
“the decision of the Court has no binding force except between the parties and in
respect of that particular case,” thereby ruling out precedents as binding authorities,
still it cannot be disputed that the decisions of the international tribunals, such as the
International Court of Justice and of its predecessor, the Permanent Court of
International Justice, are entitled to great respect. These decisions are not a direct
source, but they “exercise considerable influence as an impartial and well-considered
statement of the law by jurists of authority made in the light of actual problems which
arise before them.” (I Oppenheim-Lauterpacht, 31; Salonga, 64)

It may be noted that Article 38 does not limit the court decisions of international tribunals.
It speaks in general terms of “judicial decisions” and therefore includes those o national
courts. Decisions of national or municipal tribunals are not a source of law but “the cumulative
effect of uniform decisions of the courts of the most important States is to afford evidence of
International custom.”
(I Oppenheim-Lauperpacht, 31; Salonga, 64)

2. Writings of Jurists

Article 38 of the Statute of the International Courts of Justice also considers the teachings
of the most highly qualified publicists of the various nations as “subsidiary means for the
termination of rules of law.” Textbook writers often speak of principles of international law as
they actually prevail and also how the principles ought to be. x x x In so far as they speak of
principles of international law as they actually prevail (not how the principles ought to be) they
might be considered as an indirect source of international law.

This distinction is recognized in the able opinion of Mr. Justice Gray in the Paquete Habana
case [175 U.S. 677 (1900); Salonga, 65; Pars, 36] the dispositive portion of which partly
reads:

“International law is part of our law, and must be ascertained and

administered by courts of justice appropriate jurisdiction. For this purpose, where
there is no treaty and no controlling executive or legislative act or judicial
decision, resort must be had to the customs and wages of civilized nations; and
as evidence of these, to the works of jurists and commentators who by years of
labor, research, and experience have made themselves peculiarly well acquainted
with the subjects of which they treat. Such works are resorted to by judicial
 16

tribunals, not for the speculations of their authors concerning what the law ought
to be, but for trustworthy evidence of what the law really is.”

CHAPTER III
SUBJECTS OF PUBLIC INTERNATIONAL LAW

DEFINITION OF “SUBJECT”

There is considerable academic dispute as to what are and what are not subjects
of international law. The debate would be more intelligible if ir started with a definition.

A SUBJECT of international law is an entity that has international personality. An

entity has international personality if it has the rights and duties under international
law. X x x This implies that such entity can directly enforce its rights and may be held
directly accountable for its obligations under international law.

Where no such direct enforcement or accountability, as the case may be, can be
had, and an immediate agency is needed for the enjoyment of rights or for the
discharge of obligations, the entity is merely an object, not a subject of international
law.

Example: A Filipino private citizen is generally regarded not as a subject but as

an object: While he is entitled to certain rights which other States ought to respect, he
usually has no recourse except to course his grievances through the Philippine
Government and its diplomatic officers. – He is merely indirectly vested with rights and
obligations in the international sphere.

SUBJECTS OF INTERNATIONAL LAW

What are the subjects of international law?

If we adhere to the traditional concept of international law, namely, that it is the

law governing the relations of States, there is little doubt that only sovereign States can
be regarded as the subjects of international law.

But even among those who treat international law from this point of view, this
conclusion is not shared by all. It is felt that a strict adherence to the view that
sovereign States are the sole and exclusive subjects of international law cannot be
maintained in the face of the realities of international life. Many entities which cannot
be regarded as sovereign States have rights and duties under international law.

The prevailing view at present is that States are not the sole and exclusive
subjects of international rights and duties [Cf. Survey of International Law (1948), U.N.
Pub. Sales No. 1948, V.I; Salonga, 67] While States are undoubtedly the principal and
 17

most important subjects of international law, there are other entities which possess
international legal personality.

Practice has shown that various entities which lack the essential elements of
statehood, international organizations created by States and even private individuals
have rights and duties under international law.

In its Advisory Opinion on Reparation for Injuries Suffered in the Service of the
United Nations, [I.C.J. Report (1949), 174; Salonga, 67] the International Court of
Justice rejected the doctrine that only States are, or can be, subjects of international
law. The Court said:

“The subjects of law in any legal system are not necessarily

identical in nature or in the extent of their rights, and their nature
depends upon the needs of the community. Throughout its history, the
development of international law has been influenced by the requirements
of international life, and the progressive increase in the collective activities
of States has already given rise to instances of action upon the
international plane by certain entities which are not States.”

STATES AS SUBJECT OF INTERNATIONAL LAW

Broadly, a State is a corporate body politic possessing sovereignty (Cf. Wilson,

47; Salonga, 67) More recently, it is defined as a group of people, living together in a
fixed territory, organized for political ends under an independent Government, and
capable of entering into international relations with the rest of the world. (Cf. I Moore,
15; Salonga, 67-68)

An analysis of our definition of a State shows that there are four essential
attributes or elements of a State in international law: people, territory, government and
independence.

Some writers would prefix “sovereign” to State to qualify it as a subject of

international law. The modifier is superfluous since the term “State” is presumed
sovereign.

Given to semantics if we have to use the term “Sovereign State” in international law,
what are its elements?

1. As a concept of political science and constitutional law, the elements of a Sovereign

State are:

(1) A people sufficient in number and acting together for common purposes.

(2) A fixed territory.

(3) An organized government to which the great body of inhabitants render

habitual obedience.

(4) Independence from foreign control.

2. A concept of public international law in addition to the foregoing, a Sovereign State

must have been recognized as a member of the family of nations.
 18

CLASSES OF STATES

There are various ways of classifying States in the realm of political law and
international law. For the purpose of this study, States are classified into three
categories: INDEPENDENT, NEUTRALIZED and DEPENDENT. Let us take them up
one by one.

1. INDEPENDENT STATES

For purposes of international law, an independent State has been defined as one
that possesses freedom to direct and control its foreign relations without restraint from
other States. It is a perfect International Person, and therefore a full subject of
international law. An Independent State may either be simple or composite.

(a) A Simple State is one that has a single central government, exercising control over
both external and internal affairs. X x x A good number of States today are simple
States. The Philippines and Japan are examples. X x x Many, if not all, States until
several of them, either by inducement or under compulsion, had to join other States,
thereby giving up their own international personality or a part of it in the process.

(b) A Composite State exists when two or more States are joined together asto
constitute one single International Person. (Cf. Oppenheim-Lauterpacht, 170; Salonga,
72) x x x From the point of view of this distinction, ther are only two kinds of
Composite States: (1) Real Unions and (2) Federal States.

A Real Union exists when two Sovereign States are linked together, under the
same head, resulting in the merger of their separate international personalities. Their
foreign relations are placed, by reason of the merger, under a unified control. (At
present there is no Real Union in existence, that of Sweden-Norway having been
dissolved in 1905, and that of Austria-Hungary having ended in 1918. (I Oppenheim-
Lauterpacht, 171; Salonga, 72)

A Personal Union (distinguished from a Real Union) exists when two Sovereign
States are linked together through the accidental fact that they have the same
individual as monarch. A Personal Union, though not itself a State, is an International
Person. (There are no Personal Unions in existence at present. A Personal Union existed
from 1714 to 1837 between Great Britain and Luxembourg, and from 1888 to 1908
between Belgium and the former Congo Free State.) [Ibid]

A Federal State is a perpetual union of several States, which has organs of its own
and is invested with power over the member-States and their citizens. (Ibid, 175) The
resulting union is a State, having full international personality. (This distinguishes it
from a Real Union, which is not a State, though treated as an International Person.) x x
x A Federal State is based on an agreement between the member-States and on a
subsequently accepted constitution of the Federal State. The member-States may, to a
great extent, be independent internally; but from the point of view of international law
it is the Federal State alone that possesses the competence and the power to act. This
is the case of United States of America, where the member-States are only sovereign in
 19

respect of internal affairs; with regard to the external affairs, the member-States have
surrendered all their competence and power to the Federal State. In international law,
therefore, federal union, that is, the United States of America, possesses international
personality to the exclusion of the member-States. X x x (Salonga, 73)

2. DEPENDENT STATES

Although international law is primarily concerned with the relations of

independent States, it is also concerned to some extent with those States which, to a
greater or lesser degree, are dependent on other States in the conduct of their foreign
relations. They were formerly known as semi-sovereign States, a term which lost favor
because of the absurdity involved in the conception of part-sovereignty.

A DEPENDENT STATE is a State subject to the authority of one or more other

States in the conduct of its external affairs. X x x The idea of dependence necessarily
implies a relation between a superior State and an inferior State, the relation between
the State which can legally impose its will and the State which is legally compelled to
subject to that will. Where there are no such relation of superiority and subordination, it
is impossible to speak of dependence within the meaning of International Law. (Case of
Customs Regime between Germany and Austria, Advisory Opinion of Sept. 5, 2931,
P.C.I.J. Pub., Series B, No. 41, p. 57; Salonga, 74)

Dependent States may be in the nature of suzerainty or a protectorate. X x x

Both are referred to as “dependent” because in a very real sense they are subject to
the control and sovereignty of some other “superior” State or States in the conduct of
their external and foreign relations. To the extent that they may be allowed some
control in foreign matters they are considered as international persons; if they have no
authority whatsoever on the point, their personality is restricted – they may not even be
accorded any status as international entities. (Paras, 50)

SUZERAINTY and PROTECTORATE

Differentiated

The difference between the protectorate and the suzerainty is this: while the
protectorate (the dependent State under the authority of the “protector” State)
possesses all competence in international affairs which it has not expressly and
specifically waived or renounced. The suzerainty (the dependent State under the control
of the “Suzerain’ State) has only such competence as has been specifically conferred
upon it by the Suzerain. In other words, the suzerainty is more dependent than a
protectorate, and for exactly this reason, the relationship between the Suzerainty and
the Suzerain is much closer than that existing between the protectorate and its
protector. [Wilson and Tucker, International Law, 9th ed. (1935), 62-63; Paras, 50]

Is a protectorate or a suzerainty a State? – The answer may be found in Kelsen’s

explanation, as follows: “The effect of a protectorate treaty is that a body politic under
protectorate is partly subjected to the national legal order of another State and not
exclusively to the international legal order, and hence has lost that independence which
is an essential element of a State in the sense of international law. It is a State-like
community, not a full State.” (Kelsen, Principles of International Law, 161; Paras, 52)
NEUTRALIZED STATES

A State is said to be neutralized where its independence and integrity are

guaranteed by an international convention on the condition that such State obligates
itself never to take up arms against any other State, except for self-defense, or enter
 20

into such international obligations as would indirectly involve it in war. X x x A State

seeks neutralization where it is weak and does not wish to take an active participation
in international politics. The powers that guarantee its neutralization may be motivated
either by balance of power considerations or by the desire to make the weak State a
buffer between the territories of the great powers.

A distinction should be made between neutrality and neutralization. Strictly

speaking, neutrality obtains only during war, whereas, neutralization is a condition that
applies in peace or in war. Secondly, Neutralization is a status created by means of a
treaty, whereas neutrality is a status created under international law, by means of a
stand on the part of a State not to side with any of the parties at war. Thirdly,
neutrality is brought about by a unilateral declaration by the neutral State, while
neutralization cannot be effected by unilateral act, but must be recognized by other
States.

Neutralization is, like any treaty obligation, a restriction of sovereignty; the

neutralized State remains a sovereign State. – But, a neutralized State is bound to
observe strict neutrality in the event of an armed conflict between other States, and
may not resort to arms except in self-defense. It may not adopt any policy which might
involve it in war. Thus, it can conclude no alliances, nor any treaty of military
assistance. It cannot grant military bases on its territory to other States or allows the
passage of troops of foreign belligerents through, and the flight of belligerent planes
over its territory. [Salonga, 76, from Kunz, “Austria’s Permanent Neutrality,” 50 A.J.I.L.
(1956), 418-419]

Examples of a Neutralized State: Switzerland and Austria.

The most outstanding example of a neutralized State is Switzerland. At the

Congress of Vienna in 1815, then Great Powers signed the declaration in which the
permanent neutralization of Switzerland was recognized and collectively guaranteed.
This was acceded by Switzerland in the same year. Since that time Switzerland has
always succeeded in maintaining her status as a neutralized State.

Austria is another example of a neutralized State. Austria declared her

permanent neutrality by Constitutional Federal Statute of October 26, 1955, and asked
all States to recognize her status. All the permanent members of the United Nations
Security Council and many other States have extended such recognition. Austria has
pledged herself, under the Constitutional Federal Statute, never to accede to any
military alliances, nor permit the establishment of military bases in her territory, and to
deend her neutrality with all means at her disposal. (Exerpted from Salonga, 77)

COLONIES, DEPENDENCIES, AND POSSESSIONS

While colonies, dependencies, and possessions are not, from the view point of
international law, part and parcel of the territory to which they may belong, and cannot
therefore be a State, still the international legal order grants them in a very restricted
degree some international personality. For instance, they may sign international
conventions, and may even become members of the United Nations Organization
(Subject of course to the consent of the members therein.) – Thus, even the Philippines
become independent on July 4, 1946 she was already a signatory to the United Nations
Declaration and, in fact, became a member of the UN in 1945.

A Colony is a dependent political community, consisting of a number of citizens

of the same country who have migrated therefrom to people another country, but
 21

remain subject to the mother State. (From A.S. vs. the Nancy, 3 Wash. D.C. 287; Paras,
56)

A Dependency, on the other hand, is a territory distinct from the country in

which the supreme sovereign power resides, but belonging rightfully to it, and subject
to the laws and regulations which the sovereign may think proper to prescribe. (Ibid)

A Dependency is said to be distinguished from a Colony in that the former is

not necessarily settled by the citizens of the sovereign or mother-State, and from a
Possession in that it is held by a little other than that of mere physical conquest.
(Black’s Law Dictionary, 557)

MANDATES AND TRUST TERRITORIES

The system of mandates was launched after World War I by the victorious
Powers. The problem of what to do with the former territories of the defeated States
was solved by entrusting to certain States called Mandatories, the administration of
these territories, called Mandates. These territories were not annexed; they did not
belong to the Mandatories. Administration was done on behalf of the League of Nations,
whose consent must first be obtained to any act of disposition of the mandated
territory. X x x The overriding concept was that of trusteeship for “peoples not yet able
to stand by themselves under the strenuous conditions of the modern world.”

After World War II, the system of trusteeship was substituted for the system of
mandates. But the basic principles remained the same. Article 75 of the United Nations
Charter states that the United Nations shall establish under its authority an international
trusteeship system for the administration and supervision of trust territories. Article 77
provides that the trusteeship system shall apply to such territories in the following
categories as may be placed thereunder by means of trusteeship agreements:

(1) Territories previously held under a mandate in conformity with Article 22 of the
Covenant;

(2) Territories detached from the defeated States as a result of the Second World War;

(3) Other territories voluntarily placed under the Trusteeship System by States responsible
for their administration.

What is the legal position of the trust territories from the point of view of
international law? – In considering the question, it is essential to bear in mind the
distinction between sovereignty as such or “residual sovereignty” and the exercise of
sovereignty. (Some writers use the term “possession of sovereignty,” as distinguished
from “exercise of the right of sovereignty”)

The Administering Authority exercises the powers of sovereignty over the trust
territories, but residual sovereignty is deemed vested in the United Nations. The
Administering Authority exercises sovereignty by delegation, and although in majority of
the trusteeship Agreements it is provided that the trust territories in question shall be
administered as an “integral part” of the Administering State, this does not imply that
the latter has any claim to sovereignty over the territory. X x x Although the
Administering Authority can exact allegiance from the inhabitants because of its right to
exercise powers of Sovereignty, they do not thereby acquire the nationality of the
Administering State. Treaties concluded by the Administering Authority do not apply
automatically to the trust territory, although provision is made for their application if in
 22

the opinion of the Administering Authority they are appropriate to the needs of the trust
territory and conducive to the accomplishment of the principles of the Trusteeship
System. (Exerpted from Salonga, 79)

From the foregoing explanations can be deduced the conclusion that the trust
territories have an international legal status and may be deemed subjects of
international law.

STATUS OF REVOLUTIONARY GROUPS

The present discussion of this topic will deal with the question of them legal
status of the rebels in international law. X x x There may be within a State an organized
body of men pursuing public ends by force of arms and temporarily beyond the control
of the civil authority. X x x What is the legal status of this group of rebels in
international law?

In such a situation, it is for the third States to determine what attitude or

position to take towards the insurgent group. X x x A third State may not consider the
situation in the State where civil strife is taking place such as to call for a recognition of
the rebels as a “belligerent.” However, for the sake of protecting its property or
nationals, such third State may, without conceding to the rebellious forces “belligerent
status,” treat them a de facto authority in the territory under their control and maintain
relations with them. In such event, the rebels would be deemed to possess, as against
the third State concerned, the “status of insurgents.” The relation thus maintained
between the third State and the insurgents is strictly one of convenience. The
insurgents do not acquire international personality. (Salonga, 81)

On the other hand if, because the revolutionists are in control of considerable
territory and have established a “de facto” political organization which is able to conduct
military operations in conformity with the laws of the war, third States may decide to
extend such rebels the “status of belligerency,” the effect would be to confer upon
them the same international status, at least for the purpose of the civil conflict, as that
possessed by the legitimate government. To this extent, but no more, the belligerent
community is regarded as having an international legal personality and may be
considered a subject of international law. (Salonga, 82)

(Insurgency and Belligerency Status – the nature and effect of recognition will be
discussed more fully in Chapter _____ of this book)

THE HOLY SEE

What is the legal status of the Holy See in international law?

Before the annexation of the Papal States by Italy in 1870, the Pope was a
Monarch, and little difficulty was encountered in considering the Holy See as a subject
of international law. With the loss of the Papal States, the position of the Holy See in
international became controversial.

On February 11, 1929, the Holy See and Italy entered into a treaty (Popularly
known as the Lateran Treaty) pursuant to which the “City of Vatican” was created and
constituted as a territory under the sovereignty of the Holy See. X x x Under the
Agreement, Italy, likewise, recognized the sovereignty of the Holy See in international
matters as inherent in its nature and as being in conformity with its traditions and the
requirements of its mission in the world. The Holy See, in turn, disavowed any desire to
 23

take part in temporal rivalries between other States and in international conferences
convened to deal with them, unless the contending parties made a joint appeal to its
mission of peace. It was also provided that the Vatican City was in all circumstances to
be considered as neutral and inviolable territory. – [Exerpted from the Texts of the
Lateran Agreements, 23 A.J.I.L. (1929), Supp., 187-195; Salonga, 82]

“The treaty of 1929, thus created a new international person of a unique and
exceptional character. The Vatican City fits into none of the established categories of
States, and the attribution to it of “sovereign” must be made in a sense different from
that in which it is applied to other States. It represents in a community of national
States an institution organized primarily for international objects, whose legal
personality is marked by a few acres of territory and a handful of subjects, but whose
world-wide interests and activities are such as to make it in a sense an ‘international
state.” [Fenwick, International Law. (1948), 124-125; Aruego, 33]

The Holy See also possesses the right to send and receive diplomatic agents,
enjoys inviolability, receive the honors of sovereign, and is exempt from foreign
jurisdiction. In view of the wording of the Lateran Treaty, however, it is difficult to
determine, in terms of international law, whether the statehood is vested in the Holy
See or in the Vatican City. Some writers even suggest the treaty in effect created two
international persons-the Holy See and the Vatican City-but that it is not clear whether
the union between the two is real or personal.

A more accurate view, perhaps, would be that by virtue of the Lateran Treaty the
Vatican City was constituted as a new state, with the incumbent of the Holy See as its
head. One authority sees in the constitution of the Vatican City as a state a significant
implication, namely, that it is possible for an entity pursuing objects essentially different
from those pursued by states to be invested with international personality, these
providing an avenue for direct representation in the sphere of international law “Of
spiritual, economic and other interests lying on a plane different from the political
interests of the states,” [Kunz, “the states of the Holy See in International Law”, 46
A.U.I.L. (1952, 308; Salonga, 83]

INTERNATIONAL ORGANIZATIONS

Since the Industrial Revolution the interdependence of nations has grown

steadily and in the process has brought about the emergence of a great number of
super-national agencies for international cooperation and collective action. X x x In the
nineteenth century a number of inter-governmental administrative agencies were
established by inter-governmental agreements, mostly in such technical fields as postal
and telegraphic communications, inland transport, health, copyrights and trademarks,
weights and measures and world mapping.

Up to the early part of the twentieth century, however, international

administration was still at its embryonic stage and few of the international instruments
calling for the establishment of inter-governmental agencies granted any special status
to such organizations and their officials.

During this period little attention was paid, both in doctrine and practice, to the
problem of the legal status of the various international organizations which were
emerging and beginning to play an increasingly important role in facilitating
international co-operation between States. X x x However, the tendency was clearly
 24

developing to invest such organizations with a certain degree of international

personality. (Paraphrased from Salonga, 84)

One authority (Oppenheim-Lauterpacht, Vol. I, International Law, Sec. 289;

Paras, 58-59) opines that international administrative bodies are vested with
international personality insofar as they are beyond the control and authority of any
particular State, including the region in which the seat of the organization may be
situated.

The creation of international machinery on a broader scale came as a result of

World War I. The League of Nations and a number of international organizations
dealing with economic and social problems of international concern were established.
Their international legal status, however, was never so well defined, although most
jurists held the view that such organizations were international juristic persons and
entitled to acquire rights and discharge obligations under both international and
municipal law. Jenks, “The Legal Personality of International Organizations,” 22 B.Y.I.L.
(1945) 267; Salonga, 84]

World War II led to the demise of the League of Nations and the establishment
of the United Nations. A number of specialized agencies, working closely with the
United Nations in achieving international cooperation in the economic and social fields,
have been established by multilateral agreements which lay down their constitutions
and define their objects. – It is now widely recognized that these organizations have a
legal personality distinct from that of the States which constitute their membership. The
extent of their capacity for rights and duties under international law depends upon their
“charter” or constitutional instrument, which is usually in the form of a multilateral
treaty, and on the practice which has grown up around such organization. (Salonga, 85)

JURIDICAL PERSONALITY OF THE UNITED NATIONS

The International Court of Justice, in an Advisory Opinion on Reparation For

Injuries Suffered in the Service of the United Nations [I.C.J Rep. (1949), 174; Salonga,
85] has recognized the United Nations as “an international person.” According to the
Court, the functions and rights of the United Nations can only be explained on the basis
of the possession of a large measure of international personality and the capacity to
operate upon an international plane. It is at present the supreme type of international
organization, and it could not carry out the intentions of its founders if it were devoid of
“international personality.” X x x However, the Court added, this is not tantamount to
saying that the United Nations is a “State” or a “superstate.” What it does mean,
according to then Court is that “it is a subject of international law and capable of
possessing international rights by bringing international claims.”

Additionally, just as the United Nations itself has juridical personality (with all its
attendant rights), so also, have juridical personalities the various specialized agencies of
the United Nations. [Convention on the Priveleges and Immunities of Specialized
Agencies (Nov. 21, 1947), 33 UN Treaty Series, 264; Paras, 63]

THE SATTUS OF INDIVIDUALS IN INTERNATIONAL LAW

What is the status of natural persons in international law? As previously pointed

out:
 25

Adherents of the traditional or “classical” view assert that States alone are the
subject of international law, and that individuals can be no more than objects of that
law.

Espousing the extreme view are a group of writers belonging to the “monistic”
school who claim that only individuals can be subject of international law.

Occupying a middle position between these two extreme views are those who
maintain that while States are normally the subjects of international law, individuals
have become in some degree subjects of that law. – Which view is in accord with the
facts of international life?

In the field of substantive law, the existence of norms which confer rights and
impose duties upon individuals on the international plane cannot be denied. There are
certain duties and liabilities arising from customary international law which fall directly
upon the State. For instance:

(a) The Crime of Piracy. – It is a crime under the law of nations, but it is one for which
no State is responsible and for which the pirate individual alone must suffer the penalty.

(b) Breach of Blockade and Carriage of Contraband . – These are considered

violations of international law, but the sanctions in such cases are directed against
individuals rather than against the State.

(c) The Responsibility of Individuals for War Crimes Against Peace and Crimes
Against Humanity. – The principle that the obligations of international law bind
individuals directly regardless of the law of their State or of any contrary order received
from their superiors was proclaimed in the Nuremberg Charter, as well as in the charter
of the International Military Tribunal at Tokyo of January 19, 1948. x x x

The Tribunal in Nuremberg considered the problem of individuals as subjects of

international law. The Tribunal said: - “Crimes against international law are committed
by men, not by abstract entities, and only by punishing individuals who commit such
crimes can the provisions of international law be enforced.” [Transcript of Proceedings,
p. 16, 878; 41 A.J.I.L. (1947), 220; Salonga, 86-87]

There are a number of international agreements wherein individuals have been

granted a certain degree of international personality. Foremost among them is the
Charter of the United Nations which has given international recognition to certain
fundamental human rights, and thereby made the observance thereof a matter of
concern not only to a particular State but to the whole international community. Thus,
in the Preamble, the United Nations expressed their determination “to reaffirm faith in
fundamental human rights, in the dignity and worth of the human person, in the equal
rights of man and woman.” X x x Article 1 (3) articulates the purpose of achieving
international cooperation “in promoting and encouraging respect for human rights and
for fundamental freedoms for all without distinction as to race, sex, language or
religion. X x x Article 13 enjoins the General Assembly to initiate studies and make
recommendations for the purpose of assisting in the realization of human rights and
fundamental freedoms. X x x Article 55 declares that the promotion of universal respect
for, and observance of, these rights and freedoms to be one of the objects of the
United Nations in the sphere of international economic and social cooperation as a
prerequisite for the creation of “conditions of stability and well-being which are
necessary for peaceful and friendly relations among nations. “X x x Articles 62 (2) and
68, authorizes the Economic and Social Council to make recommendations for the
 26

purpose of “promoting respect for, and observance of, human rights and fundamental
freedoms for all” and enjoins it to set up a commission “for promotion of human rights.”

Commenting on the significance of the above-mentioned provisions of the Charter,

Professor Lauterpacht [International Law and Human Rights, (1950), 4; Salonga,
89090] observed:

“As a result of the Charter of the United Nations - as well as of other charges in
international law – the individual has acquired a status and a stature which have
transformed him from an object of international comparison into a subject of
international rights. For in so far as international law is embodied in the Charter,
and elsewhere, recognizes fundamental rights of the individual independent of the
law of the State, to that extent it constitutes the individual a subject of the law of
nations.”

Another international agreement o transcendental importance in the progressive

trend towards according individuals international personality is the Universal Declaration
of Human Rights which the General Assembly of the United Nations Organization
adopted on December 10, 1948. The Declaration defines the rights to which every
individual is entitled, regardless of race, color, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.

The Universal Declaration of Human Rights, however, is not a legally binding

instrument, although its great moral value cannot be doubted. To transform the
fundamental rights and freedoms enunciated in the Universal Declaration into legally
binding obligations, international conventions have to be adopted by the United
Nations, or the specialized agencies, or under their auspices. A number of these
international conventions may be mentioned: Convention on the Prevention and
Punishment of the Crime of Genocide, Convention Relating to the Status of Refugees,
Convention Relating to the Status of Stateless Persons, Convention on the Political
Rights of Women, Convention Concerning the Abolition of Forced Labour, etc.

It should be noted, however, that none of these Conventions have granted the
individual direct recourse to an international tribunal or other international body in the
event of a violation of his rights. X x x In case of conventions adopted by the
International Labor Organization, the Constitution of that body provides that an
industrial association of employers or workers may make representations that any of
the members has failed to secure the effective observance within its jurisdiction of any
Convention to which it is a party. The Governing Body of the International Labour Office
may appoint a commission of inquiry to consider such complaints and to report thereon
to the Governing Body. (Salonga, 90-91, taken from Off. Rec. Gen. Ass. 18 th Session)

The first successful attempt to transform the rights enunciated in the Universal
Declaration of Human Rights into legally binding obligations was accomplished, albeit in
a regional scale, by the European Convention on Human Rights signed in Rome on
November 4, 1950. The Convention (adopted by the members of the Council of Europe
and entered into force in 1953) imposes upon the Parties the obligation to secure within
their jurisdictions the rights and freedoms defined therein. It provides for a machinery
of implementation to ensure compliance by the Parties of its provisions. Such machinery
consists of two organs, namely, the European Commission on Human Rights and the
European Court of Human Rights. The Commission considers complaints lodged by any
State Party for alleged violation of the Convention by another State Party. X x x The
Commission can also consider complaints brought before it by individuals, non-
governmental organizations or group of persons, provided that the State concerned has
 27

made a declaration, in accordance with the Protocol attached to the Convention, that it
accepts the Commission’s jurisdiction in such cases. The European Court of Human
Rights, whose jurisdiction is similarly optional in the sense that the Parties to the
Convention may or may not make a declaration recognizing such jurisdiction, considers
complaints not settled by the Commission. Only the Commission or a Party to the
Convention may bring a case before the Court. (Salonga, 92)

It is clear from the foregoing that States may, by common agreement, recognize the
international personality of individuals not only in their rights and responsibilities, but
also in their capacity for international procedural action. X x x Partisans of the
international personality of individuals, however, admit that the personality of
individuals, although recognized to an increasing extent, is at present to be regarded as
an exception to the general principles of international law, and that individuals are only
limited subjects of that law, since their personality depends on the will of the States and
on agreements concluded by States in their favor as a “Pactum in favorem tertii.”
Experience so far has shown that States are reluctant to accede to individual’s
international personality, particularly in the matter of bringing action or asserting claims
against States before international bodies. (Salonga, 93)

CHAPTER IV
RECOGNITION OF STATE AND GOVERNMENT

At the outset, it mat be well to clarify the meaning of various kinds o recognition,
since a sweeping definition of the term may be confusing.

As to object, recognition may be accorded a State, a Government, or a belligerent

community.

As to plenitude, recognition may either be De Jure or De facto.

As to form, recognition may be expressed or implied, conditional or unconditional.

 28

As to States participating, recognition may be individual or collective.

RECOGNITION OF STATE OR GOVERNMENT, DISTINGUISHED

Recognition of a new State should be clearly distinguished from recognition of a

Government. Recognition of a new State carries with it, without further formality, the
recognition of the Government in control of the State at the time of recognition, since
recognition of a new State implies that the latter has all the essential requisites of the
State at the time. Recognition of Government amounts to accepting the government as
possessed of the authority to represent the State it purports to govern and to agreeing
to maintain diplomatic relations with it. Once recognition of a State is accorded, it is
usually regarded as irrevocable. Recognition of a government of a State, on the other
hand, is not perpetual in time, since it may be withheld from a succeeding government
where the change is brought about by unconstitutional means. (Salonga, 94-95)

RECOGNITION DE JURE OR DE FACTO

Recognition of a State or a Government may be a De Jure or De Facto. The latter

exists whenever a State is not prepared to recognize definitely an entity claiming to be
a State or Government, but yet finds it necessary for practical reason to have some sort
of official relations with such entity. Recognition De Facto is provisional, a sort of modus
vivendi; and does not carry with it full effects of a recognition De Jure, (Ibid, 95)

EXPRESS OR IMPLIED RECOGNITION

Whether it is a State or a Government that is the object, the form of recognition

may be either expressed or implied. To be sure, the mode of according recognition is
not material, provide there be an unequivocal act indicating clearly that the new State
or Government is being dealt with as such, coupled with the intent to admit the legal
implications as such an act. This may be accomplished expressly by means of a treaty
provision, a formal note or a formal public announcement.

Tacit or implied recognition may come about as a result of any act which implies
the intention of recognizing a new State or Government. According to one writer, ( I
Oppenheim-Lauterpacht, 147-148; Salonga, 95) the only legitimate occasions for
implying recognition are: (1) the conclusion of a bilateral treaty regulating
comprehensively the relations between the two States; (2) The formal initiation of
diplomatic relations; and probably (3) the issuance of consular exequatur, as
distinguished from a mere request for issuance.

CONDITIONAL OR UNCONDITIONAL RECOGNITION

Recognition may also be conditional or unconditional. However, a number of

writers believe that recognition cannot be subject to conditions. (From I Oppenheim-
Lauterpacht, 148; Salonga, 96) In fact, in practice, there have been only a few
instances of conditional recognition. At the Berlin Congress of 1978.Bulgaria,
Montenegro, Serbia and Romania were recognized as independent States, subject to
the condition that they should not impose religious disabilities upon their subjects. Even
then, there was general agreement that violation of the condition would not be a cause
for withdrawal of recognition. (Salonga, 97)

INDIVIDUAL OR COLLECTIVE RECOGNITION

 29

Recognition is said to be individual, if accorded by one State, and collective if

accorded by a group of States simultaneously and in the same act of declaration.
Example of collective recognition is that of Austria. In the Austrian State Treaty of May
15, 1955, the Allied and Associated Powers recognized the re-establishment of Austria
as a sovereign, independent and democratic State.

RECOGNITION OF STATES

A new State comes into existence when an entity acquires with a reasonable
probability of permance the essential attributes of a State, namely, people, an
organized government, a defined territory, and such a degree of independence of
control by any other State as to be capable of conducting its own international
relations. (Brierly, 129; Salonga, 97)

Stated in another way, a State may come into being by: (1) Revolution of a
colony, as in the case of the United States; (2) Secession of the inhabitants occupying a
portion of the territory of the State; (3) Grant of Independence as in the case of the
Philippines in 1946; (4) Unification of two or more States, as what took place in Italy or
Germany; (5) Agreement of a controlling group of powers to establish and recognize a
new State within territory previously belonging to an existing State, as in the case of
Poland after World War I and of the Koreas after World War II.

Now, for purposes of international law, the question may be posed: When does a
State become an international person and therefore a subject of international law?
There are two views on this matter.

One line of authorities states the answer as follows:

“As the basis of the law of Nations is the common consent of the civilized
States, statehood alone does not imply membership in the family of Nations.
Those States which are members are either original members because the law of
Nations grew up gradually between them through custom and treaties, or they
are members which have been recognized by the body of members already in
existence when they were born. A State is, and becomes, an International
Person through recognition only and exclusively.” (I Oppenheim-Lauterpacht,
125; Salonga, 98)

From the point of view of this school of thought, RECOGNITION is the act
which gives to a political entity international status as a State. Recognition therefore
has a “CONSTITUTIVE” effect, for it is only through recognition that a State becomes
an International Person and a subject of International law.
The opposing school of thought views recognition of a State as having merely a
“DECLARATORY” effect; it merely declares as a fact something which has hitherto
been uncertain, namely, the independence of the body claiming to be a State, and
manifests the recognizing State’s readiness to accept the normal consequences of that
fact, more particularly the usual courtesies of international intercourse. From the
declaratory point of view, recognition may therefore be defined as “the assurance given
to a new State that it will be permitted to hold its place and rank in the character of an
independent political organism, in the society of nations.” (I Moore, 72; Salonga, 98)

The “Constitutive School” thinks of recognition of a State as a legal act, that

is, it is not a matter of arbitrary will on the part of one State whether to recognize or
refuse to recognize another entity but where certain conditions of fact exists, an entity
 30

may demand, and the State is under legal duty to accord, recognition. [From
Lauterpacht, Recognition in International Law, (1947) 6; Salonga, 98]

On the other hand, the “Declaratory School” thinks of recognition as a political

act, that is, that it is an entirely a matter of policy and discretion to give or refuse
recognition, and that no entity possesses the power, as a matter of legal right, to
demand recognition. The United States and a good many States in the world adhere to
this latter view. For indeed, recognition today has been used as a political instrument to
express approval or disapproval of existing situations. (For example, under the so-called
Stimson doctrine there is a duty not to recognize a new State or other territorial change
established, not primarily by internal action, but by the aggression of another State in
violation of its international obligations.) x x x On the positive side, witness, for
instance, the categorical statement made by Mr. Warren Austin, the American
representative in the United Nations Security Council, on the occasion of the recognition
of the State of Israel.

“I should regard it as highly improper for me to admit that any country on

earth can question the sovereignty of the United States of America in the
exercise of that high political act of recognition of the de facto status of a State.
Moreover, I would not admit here, by implication or by direct answer, that there
exists a tribunal justice of any other kind, anywhere, that can pass upon the
legality on the validity of that act of my country.” (New York Times, May 19,
1948; Salonga, 99)

RECOGNITION OF GOVERNMENT

Earlier we said that recognition of a new State carries with it, without further
formality, the recognition of the Government in control of the State at the time of
recognition. Now, when a government is recognized it is considered by the one
according recognition as possessed of the authority to represent the State it purports to
govern. Although recognition is discretionary on the part of the recognizing State, the
normal practice of States shows that the Government whose recognition is sought
should satisfy certain minimal requirements. – First, the government must be effective
and stable. This is taken to mean that it should be in possession of the machinery of
the State and without substantial resistance to its authority. – Second, the government
must show willingness and ability to discharge international, obligations.

DE JURE AND DE FACTO RECOGNITION OF GOVERNMENT

Recognition of Government may either be De facto or De Jure.

De facto recognition takes place when, in the view of the recognizing State, the
new government, although actually independent and wielding effective power in the
territory under its control, has not acquired sufficient stability or does not as yet offer
prospects of complying with other requirements of recognition, such as willingness or
ability to fulfill international obligations. (Oppenhein-Lauterpacht, 134-135; Salonga,
101)

Where there is no specification as to the kind of recognition, it is considered

ordinarily as De jure, and amounts to acknowledgment of the presence of the minimal
requirements of government. This government may of course be ousted through force,
and when this happens, it is usually referred as the “De jure government,” that is, a
government which, in the opinion of the person using the phrase, ought to possess the
powers of sovereignty, though at the time it may be deprived of them.
 31

A De facto government is one which is in possession of the powers of

sovereignty, althoughthe possession may be wrongful or precarious. (Definition of
Mountague Bernard, adopted by Wheaton and later writers, Salonga, 101)

DISTINCTIONS BETWEEN RECOGNITION DE JURE AND RECOGNITION DE

FACTO

First, recognition De facto is provisional and limited to certain judicial relations,

whereas recognition De jure is relatively permanent.

Second, recognition De facto does not, as a rule, bring about either full
diplomatic intercourse or the conferment of diplomatic immunities upon the
representatives of the De facto government, whereas the opposite is true of De jure
recognition.

Third, recognition De facto does not give title to assets of the State held or
situated abroad; recognition De jure does. (Oppenheim-Lauterpacht, 136-137; Salonga,
101-102)

REOGNITION OF INSURGENCY AND BELLIGERENCY

In international law, the term “belligerency” presupposes the existence of a state

of war between two or more States, or actual hostilities amounting to a civil war within
a single State. It is the latter situation that will be dealt with in the discussion that
follows.

A group of rebels attempting to overthrow the existing government in a State are

usually held punishable under their municipal law. Where their attempt is unsuccessful,
there is no international repercussion of much significance.

If, however, the rebels occupy a substantial portion of the territory, and are well-
organized under some form of civil government, the situation may not be ignored within
the realm of international relations. They are usually treated as insurgents in the
meanwhile, and if the hostilities assume widespread proportions, they may be treated
as belligerents and recognized as such.

Since there is no purely legal right to be recognized, the question as to whether

insurgency or belligerency may be accorded recognition is a matter of policy on the part
of the recognizing State or government. If the latter feels that the territory occupied is
not considerable, or if by the conduct of the rebels there is no guarantee of complying
with the accepted rules of war, the condition of insurgency may be recognized. In this
case, Third States “without making a formal announcement and without conceding to
the rebellious forces belligerent rights affecting foreign nationals, refrain from treating
them as law-breakers (so long as they do not arrogate to themselves the right to
interfere with foreign subjects outside the territory occupied by them), consider them as
the De facto authority in the territory under their occupation, and maintain with them
relations deemed necessary for the protection of their nationals, for securing
commercial intercourse and for other purposes connected with the hostilities.” (I
Oppenheim-Lauterpacht, 140-141; Salonga 103-103)

The status of insurgency may, as it often does, ripen into one of belligerency –
though the caveat must first be interposed that to ant State this is a matter of
 32

discretion and policy – that the rebels have to fulfill certain conditions before the rights
of belligerency are accorded them, namely:

1. An organized civil government that has control and discretion over the struggle
launched by the rebels;

2. Occupation of a substantial portion of the national territory;

3. Seriousness of the struggle, which must be so widespread thereby leaving no doubt as

to the outcome;

4. Willingness on the part of the rebels to observe the rules and customs of war. (Salonga,
103)

Another authority (Wilson and Tucker, op. cit. p. 69; Paras, 55) lists down the
following conditions in order to accord the rebels the status of a belligerent community:

1. The end must be political in character (thus a mere mob or a party of marauders could
have no belligerent rights);

2. The hostilities must be of the character of war, and must be carried on in accordance
with laws of war;

3. The proportions of the revolt must be such as to render the issue uncertain and to
make its continuance for a considerable time possible;

4. The conduct of the hostilities and general government of the revolting community must
be in the hands of a responsible organization.

Wilson and Tucker state that the question of belligerency is a question of fact and
never a question of theory. (Ibid)

Insofar as a belligerent community has been recognized as such and accorded a

certain status in the international order, insofar does it possess an international
personality – but only for a limited period (the duration of the armed struggle). (From
Schwarzenberger, Manual of International Law, 24-27; Paras, 55)

CONSEQUENCES OF RECOGNITION

A. – With reference to recognition of a new government or State, the following are

the consequences:

1. – The recognized government or State acquires the capacity to enter

into diplomatic relations with recognizing States and to make treaties
with them. (Of course, where the recognition is De facto, full diplomatic
intercourse is usually not brought about.)

2. – The recognized government or State acquires the right of suing in the

courts of law of the recognizing State.

3. – It is immune from the jurisdiction of the court of law of the

recognizing State
 33

4. – It becomes entitled to demand and receive possession of property

situated within the jurisdiction of a recognizing State, which formerly
belonged to the preceding government at the time of its supersession.
(I Oppenheim-Lauterpacht, 138-139; Salonga, 104)
–
5. – Recognition being retroactive, validating thereby the acts and decrees
of the recognized State or government, its effect is to preclude the
courts of recognizing States from passing judgment on the legality of
its acts, past and future.

B. With reference to recognition of a “belligerent community” or the “status of

belligerency,” a number of legal consequences follow.

1. – For one thing, before the recognition of such, it is the legitimate

government that is responsible for the acts of the rebels affecting
foreign nationals and their properties. Once recognition is given, the
legitimate government may no longer be held responsible for their acts;
responsibility is shifted to the rebel government.
2. – For another, the legitimate government, once it recognizes the rebels
as belligerents, is bound to observe the laws and customs of war in
conducting the hostilities. The implication is that the rebels may not be
executed or shot, upon capture, as traitors; since under the laws of
war, they are enemy combatants, they should be accorded the rights of
prisoners of war.

3. – From the point of view of Third States, the effect of recognition of

belligerency is to put them under obligation to observe strict neutrality
and abide by the consequences arising from that position.

4. – On the side of the rebels, recognition of belligerency puts them under

responsibility to Third States and to the legitimate government for all
its acts which do not conform to the laws and customs of war.

Again it should be noted that a belligerent community has rights and obligations
in international law, only for purposes of the hostilities. Its recognition is provisional in
nature and limited to the duration of the war from which it results.

WHO MAY RECOGNIZE

What department or agency of the government possesses the authority to

recognize a new State or Government? – This is a matter to be decided under the
municipal law of the recognizing State. – Generally, however, this is a function
entrusted to the political departments. – Since recognition of a foreign State or
government, or the status of belligerency, is a matter within the discretion of the
political department of the government, the legality and wisdom of recognition
accorded any foreign entity is not subject to judicial review. The courts are bound by
the acts of the political department of the government.

In the Philippines there is no explicit provision in the Constitution which vests

this power in any department. But since under the Constitution, the President is
empowered to appoint and receive ambassadors and public ministers (Art. VII, Sec.
16), it is conceded that by implication it is the Executive Department that is primarily
 34

endowed with the power to recognize foreign States or governments. Likewise, since it
is the President that has the power, with the concurrence of two-thirds of all the
Members of the Senate (Art. VII, Sec. 21) to make treaties, any recognition embodied
in a treaty becomes a matter of Presidential prerogative with the cooperation of the
Senate.

RECOGNITION BY INTERNATIONAL ORGANIZATIONS

Does admission of a member in an international organization, such as the United

Nations, imply recognition of such member as a State?

Under Article 4, paragraph 1, of the Charter of the United Nations, membership

in the organization is “open to all other peace-loving States,” which accepts the
obligations contained in the Charter and, in the judgment of the Organization, are able
and willing to carry out those obligations. Thus, one of the conditions required for
admission is that the applicant for membership must be a State.

The admission of an applicant ipso facto constitutes recognition by the

Organization that, for the purpose of membership at least, the applicant is a State. It
does not constitute implied de facto or de jure recognition of a State or government by
the individual members of the Organization. (Aufricht, loc. Cit. 703; Salonga, 108-109)

Admission to membership is not contingent upon prior recognition of the

applicant by the States already members of the Organization, although of course it
would appear to be obvious that a Member State would not vote for the admission of
an enity which it did not regard as being a State. X x x Hence, some writers maintain
that the members which have voted for the admission of an applicant must be regarded
as tacitly recognizing the facts of its statehood. No such implication of course could be
drawn with respect to member States voting against or abstaining on the admission of
the applicant. (Salonga, 108)

But, in the Judgment of the Luxembourg Commercial Tribunal in Soviet Union vs.
Luxembourg and Saar Co. (Salonga, 108, footnote) it was held that the admission of
the Soviet Union into the League of Nations constituted recognition of the Soviet
Government binding on Luxembourg which had abstained during the Assembly vote.

CHAPTER V
SUCCESSION OF STATES AND GOVERNMENTS

THE PRINCIPLE OF STATE CONTINUITY OR CONTINUITY OF STATE LIFE

It holds that a State, despite changes in the form of government, in its headship, or
alteration in the area of its territory, does not lose its identity but remains one and the
same international person. (Lawrence, 88; Oppenheim- Lauterpacht, 153; Salonga,
109)

The application of this principle is illustrated in the Sapphire case [11 Wall. 164 (1870);
Salonga, 109; Paras, 230] – This was suit filed in the California Court in the name of
Emperor Napoleon III of France as owner of the vessel “Euroyale” which had been
damaged in a collision with “The Sapphire.” While the litigation was pending Napoleon
III lost his throne and the defendant tasked for the dismissal of the suit on the ground
 35

that it had abated. x x x Issue: May the successor of Napoleon III continue the action?
X x x In holding that Napoleon’s successor could carry on the suit, the Court said that
Napoleon was the owner of the “Euroyale,” not as an individual, but as a sovereign of
France. On his disposition the sovereignty did not change but merely the person or
persons in whom it resided. The reigning sovereign represented the national
sovereignty and that sovereignty was “continuous and perpetual, residing in the proper
successors of the sovereign for the time being.” The Court stated that the vessel had
always belonged and still belonged to France.

But of course the case can be continued by the new government only if it has been duly
recognized. As stated by the United States Supreme Court in the later case of Guaranty
Trust Co. of New York vs. United States [304 U.S. 126, 127 (1938); Salonga, 110]

“ x x xthe rights of a sovereign rather than any particular government which may
purport to represent it x x x and suit in its behalf may be maintained in our courts only
by that government which has been recognized by the political department of our
government as the authorized government of the foreign State.”

SUCCESSION OF STATES

The matter of succession of States must be distinguished from that of succession of

governments. The latter has a more limited application since it arises only when a
change of government is effected through violence or unconstitutional means, or when
a rival authority, claiming to exercise government powers as against the legitimate
government, fails in its efforts to establish itself. In both of these cases, the identity of
the State remains the same, and therefore the question of State succession does not
arise. (Salonga, 110)

So, what is State succession? Under what situations may it arise?

State succession is the substitution of one State in the control of the territory of the
territory possessed by another State. (Hyde, International Law; Paras, 232), resulting in
a consequent transmission generally of rights and obligations (Fenwick, International
Law; Ibid), and a change in international personality.

State succession may occur under various situations, such as:

1. When a new State comes into being;

2. When a State becomes extinct;

3. When a State acquires a portion of the territory of another State.

State succession may be universal or political.

Universal Succession takes place when one State completely absorbs the international
personality of another State, and thereby becomes the sole representative in the
international legal order of the rights and obligations of the latter State. This mat be
caused by:

(1) The annexation of an existing State through subjugation and other

forcible means;

(2) The incorporation of one State into a federal union;

 36

(3) By the division of a State into a number o smaller separate States.

Partial Succession occurs when only a portion of the territory of one State is taken over
by another State, as in the case of:

(1) A grant of independence (through revolution or through peaceful

means) to a portion of the territory. (Example: the formation of the
United States after rebelling against England);

(2) A grant of independence to protectorate;

(3) The separation of a member-State from a federal union;

(4) The acquisition through Cession of part o the territory of one State.
(Example: The acquisition of the Philippines by the United States from
Spain.)

(Fenwick, International Law; Paras, 232-233)

In fine, State succession may be a consequence of Absorption, Dismemberment, and

Emancipation or Cession.

THE PROBLEM POSED BY STATE SUCCESSION

Although a State may become extinct, its territory and people do not disappear.
Another State or States will take the place of the extinct State in the same territory and
among the same people.

The displacement of the old State by the new State or States raises the question of
whether and to what extinct the rights and obligations of the former devolve upon the
latter.

(a) Some writers maintain that no rights and obligations can survive
the extinction of an international person;

(b) Others hold that a devolution of such rights and obligations upon
the succeeding States does take place;

(c) The practice of States shows that no general succession takes

place, but a successor State may make use of certain rights which
previously belonged to its predecessor in relationship with other
States and entities and that the successor is also bound by the
duties of the predecessor State. (Cf. Oppenheim-Lauterpacht, 158;
Salonga, 111)

In international law, actual practices of States show that if there is any assumption of
rights and liabilities, it is only because the successor State has given its consent to such
assumption. And when it does give its consent, the State usually specifies the rights and
obligations it is willing to assume.

Our authority warns us that when we use the term “State succession,” we should keep
in mind the inadequacy of the concept or we might be misled. We should also be
careful not to regard the decisions of the highest Courts of one or several States as the
 37

accepted principle of international law on succession. X x x Thus warned, we may say

by way of definition that State succession refers to the succession by one State to the
right of control within and supremacy over territory possessed by another. Oppenheim
says that “A succession of International Persons occurs when one or more International
Persons take the place of another International Person, in consequence of certain
changes in the latter’s condition.” (Cf. Oppenheim-Lauterpacht, 157; Salonga, 112)

THE LEGAL EFFECTS OF STATE SUCCESSION UNDER VARIOUS CIRCUMSTANCES

1. Succession resulting from ABSORPTION. – When one State is completely absorbed by

another State, either through merger or subjugation, the former is extinguished but the
latter remains one and the same International Person. – The consequences as to rights
and obligations are as follows:

(a) With respect to the former State’s political rights and duties, no
succession occurs. Treaties of alliance, arbitration, neutrality or of any
political nature fall to the ground and, according to the majority of writers,
so also treaties of extradition and commerce. (Cf. Oppenheim-
Lauterpacht, 159; Salonga, 113)

(b) With respect to State property such as public buildings, Government funds
in banks, or State railways, the successor State invariably acquires them.

Haile Selassie vs. Cable and Wireless Co. Ltd., 1 Chancery 182; Paras, 234

When Haile Selassie was still Emperor of Ethiopia, he sued on behalf of his government
the defendant company for a sum of money. The suit was brought before the British
Chancery Division, which eventually rendered a decision in favor of Ethiopia. The case
was however appealed to the British Court of Appeals. In the meantime, Italy invaded
Ethiopia, and in due time, the King of Italy was recognized by the British Government
as the ruler of Ethiopia. The issue therefore became this: Was Ethiopia still entitled to
the judgment? – HELD: Ethiopia was no longer entitled to the judgment. Firstly, it had
been annexed by Italy; secondly, the Italian Government was recognized as the
successor to the State of Ethiopia. The right therefore to the credit – public property –
became vested in the King of Italy.

(c) As to the fiscal debts of the former State there is disagreement among
writers as to whether succession takes place. X x x State practices are
diverse, motivated as there are by considerations of self-interest. X x x In
West Rand Central Gold Mining Co. vs. The King [2 KB 391, (1905);
Salonga, 114] an English Court stated that “The conquering sovereign can
make any decision he thinks fit respecting the financial obligations of the
conquered country, and it is entirely at his option to what extent he will
adopt them.”

(d) As for Contractual Liabilities (not giving rise to fiscal debts) of the former
State, the writers are in wide disagreement, and judicial decisions are not
decisive. Probably much can be achieved if contracts are classified as to
nature and character, whether rights have been vested or not, and in the
light of whether the identity of the original contracting State is or is not a
material element in it. (Salonga, 114)

In the Mavromatis Palestine Concessions case (P.C.I.J. Pub. Series A, Judgment No. 5;
Ibid) the Permanent Court of International Justice held that the administration of
 38

Palestine was under obligation to respect certain concessions granted by Turkey to a

Greek subject for works to be carried out of Jerusalem.

(e) With reference to Tort Liability for wrongful acts of the State whose
territory is annexed, the authorities agree that a State does not become
liable for torts or delicts of the extinct State which it has absorbed.

In one decision of an international arbitral tribunal, it was held that a State acquiring
territory by conquest is under no obligation to take affirmative steps to right a wrong
that may have been committed by its predecessor. [The Robert Brown Claim, 19 A.J.I.L.
(1925)), 193-206, followed in the Hawaiian claims, No. 84, 20 A.J.I.L. (1926), 381-382;
Salonga, 115]

(f) As to Local Rights and Duties, that is, such international rights and duties
of the extinct State as are locally connected with its land, rivers, main
roads, railways and the like, they devolve on the absorbing State, under
the principle of “res transit cum suo onere.” X x x It is for this reason that
the majority of authorities hold that dispositive treaties, such as treaty
fixing boundary lines, should be considered as remaining in force. (I
Oppenheim-Lauterpacht, 159; Salonga, 115)

2. Succession resulting from DISMEMBERMENT. Like total absorption, dismemberment of

a State results in its complete extinction. Each part of the dismembered State becomes
a separate State or is absorbed by several other States. The results are:

(a) The absorbing State usually succeeds to the public properties and funds
found on, and to the international rights and duties locally connected
with, the part of the territory which it absorbs.

(b) As to fiscal debts, in so far as there is a tendency or willingness to assume

them, proportionate parts of the debts are taken over by the different
successors.

Example: - When Austria–Hungary was dismembered in 1918, and some

of its fragments became States, while other fragments were annexed by
surrounding States, the Treaties of Peace made express provision for the
apportionment between the States concerned of the pre-war debt of Austria-
Hungary, and defined the extent of Liability of Austria for the debt incurred by
the dismemberment Dual Monarchy in persecuting the war. [Taken from
Feilechenfeld, Public Debts and State Succession (1931); Salonga, 115-116]

3. Succession arising from EMANCIPATION OR CESSION

A portion of the territory of a State may be separated from it, either

through peaceful or violent means, and becomes a new State or is absorbed by
another State. X x x This is case of “partial sucession,” so-called. The old State
remains intact as an International Person, although its territory is diminished.

Succession takes place only with respect to the portion of the territory
that is separated from the old State to become either a new State or part of
another State. X x x There is here a change of sovereignty arising from cession.
The results are:
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(a) As a natural consequence, the political relations with the old sovereign
are cut-off and a new political relations established with the new
sovereign.

(b) With respect to the effect on private rights of the inhabitants within
the ceded territory, it would seem that this is a matter governed by the municipal
law of the new sovereign, although it is not unusual to come across decisions
saying that this matter is governed also by international law. The position of
American Courts is revealed in the following excerpts from judicial decisions:

[Ortega vs. Lara, 202 U.S. (1906) 399, 342; Salonga, 118] – “By the
general rule of public law recognized by the United States, whenever political
jurisdiction and legislative power over territory are transferred, laws intended for
the protection of private rights continue in force until abrogated or changed by
the new government. Of course, in case of cession to the United States, laws of
the ceded country inconsistent with the Constitution and laws of the United
States, so far as applicable, would cease to be of obligatory force; but otherwise
the municipal laws of the acquired country continue.”

[Vilas vs. City of Manila, 229 U.S. (1911), 345, 357; Salonga, 118] – “That
there is a total abrogation of the former political relations of the inhabitants of
the ceded region is obvious. That all laws therefore in force which are in conflict
with the political character, constitution or institutions of the substituted
sovereign loss their force is also plain., (Alvarez vs. U.S., 216 U.S. 167) But it is
equally settled in the same public law that the great body of municipal law which
regulates private and domestic rights continues in force until abrogated and
changed by the new ruler.”

(c) The question of the succession of the newly independent States to the
treaty rights and obligations of the former sovereign Power. – The
traditional view holds that those rights and obligations remain with the old
State if it continues to exist and that the new State detached from the old
one has no rights and duties. [Brierly, 144; Mural, The Problem of State
Succession with Regard to Treaties (1954); Salonga, 119]

Expressive of contemporary practice, however, shows that a number of new States

have of their own accord, after the attainment of independence, declared that they
considered themselves bound by treaties applied or extended to their territories by their
predecessors. (Ref. To “Succession of States in Relation to General Multilateral Treaties
of which the Secretary General is the Depository;” Salonga, 119)

THE QUESTION OF STATE SUCCESSION IN RELATION TO MEMBERSHIP IN THE

UNITED NATIONS.

This question has arisen in connection with the emergence of new States after World
War II. The question first arose in 1947 when India, which had become an original
Member of the United Nations while still part of the British Empire, was divided into two
States – India and Pakistan – upon attainment of independence. The General Assembly
did not adopt the view of Pakistan that she was a “co-successor” to India and as such
entitled to automatic membership. Pakistan went through the usual procedure for
admission, and such procedure has been followed by all other new States which were
formerly parts of Members and which have been admitted to the United Nations.
(Salonga, 120)
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A different situation arose in 1958, when Egypt and Syria, both members of the United
Nations, formed a union, known as the United Arab Republic. The new Union declared
that it was a “single member of the United Nations, bound by the provisions of the
Charter, and that all international treaties and agreements concluded by Egypt or Syria
with other countries will remain valid within the regional limits prescribed on their
conclusion and in accordance with the principles of international law.” (From succession
of States in Relation to Membership in the United Nations,” a memorandum prepared by
the U.N. Secretariat, Doc A/CN, 4/149, 3 Dec. 1962; Salonga, 120) x x x The
representatives of the Republic were seated without objection in all organs of the
United Nations of which Egypt or Syria, or both, had been members. X x x
Subsequently, in 1961, a revolution broke out in Syria, which resulted in the re-
establishment of that entity as a separate State. In a communication addressed to the
President of the General Assembly, Syria indicated that “in resuming her formal status
as an independent State, the Government of the Syrian Arab Republic has the honour
to request that the United Nations take note of the resumed membership in the United
Nations of the Syrian Arab Republic. (Ibid, par. 17; Salonga, 121) x x x The President of
the General Assembly, allowed the delegation of the Syrian Arab Republic to sit in the
Assembly as a member of the United Nations. Thereafter Syria was seated in all organs
composed of all members of the Organization, as well as in organs of which she had
become a member before the formation of the United Arab Republic. In 1963 a
question was raised concerning the assumption by Malaysia of the seat of the
Federation of Malaya in the General Assembly. The Federation of Malaya had been a
member of the United Nations since 1957. In September 1963 the Federation of
Malaysia was formed, constituted by ther Federation of Malaya and the territories of
North Borneo, Sarawak and Singapore. At the eighteenth session of the General
Assembly, the representatives of Malaysia took their place in the Assembly, occupying
the seat of the former Federation of Malaya. The Indonesian representative took
exception to the seating of Malaysia, stating that his government had for serious
reasons withheld recognition of the Federation of Malaysia. (U.N. Gen Ass. Off. Rec,.
18th Sess, 1206th plen. mtg.; Salonga, 121) x x x The credentials of the representatives
of Malaysia were accepted, however, by the General Assembly, although a number of
representatives, including those of the Philippines and Indonesia, reserved their
positions.

SUCCESSION OF GOVERNMENTS

As previously pointed out, the matter of succession of States must be distinguished

from succession of governments. The latter involves the substitution of a new sovereign
over the territory in question.

Question: - Suppose there is a change in the form of Government, does the new
government succeed to all the rights and obligations of the old Government? – The law
on the matter is uncertain, the writers are not in agreement and none but rudimentary
principles derived from State practices may be attempted. (Salonga, 122)
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