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reprisals and even war

Chapter 1 Breaches generally Responsibility for
INTERNATIONAL LAW entail only individual infractions is usually
responsibility collective in the sense
that it attaches directly
• Old definition: A body of rules and principles of to the state
action upon civilized states in their relation with
one another. Relation to Municipal Law
• New definition: The body of legal rules which
apply between sovereign states and such DOCTRINE OF INCORPORATION – The law of
other entities as have been granted nations although not specifically adopted by the
international personality (Schwarzenberger). Constitution or any Municipal Act, is essentially a
part of the law of the land. Its obligation commences
• “The law of nations”
and runs with the existence of a nation.
Divisions of International Law
DOCTRINE OF TRANSFORMATION – Generally
accepted rules of International Law are not per se
1. Laws of Peace – governs the normal relations
binding upon the state but must first be embodied in
of states
legislation enacted by the lawmaking body and so
2. Laws of War – during the duration of hostilities
transformed into Municipal Law.
3. Laws of Neutrality – relations of those not
involved in the war with belligerents and those
What criteria should be applied in resolving
involved in the war
conflicts between International Law and
Municipal Law? The basic rule would be to attempt
Distinctions with Municipal Law
to reconcile the apparent contradiction and thereby
give effect to both systems of law. For this purpose,
MONIST – believes in the oneness or unity of all
it should be presumed that municipal law is always
law and that some of the fundamental notions of
enacted by each state with due regard for and never
International Law cannot be comprehended without
in defiance of the generally accepted principles of
the assumption of a superior legal order from which
international law.
the various systems of Municipal law are, in a sense,
derived by way of delegation
• To sustain or uphold the supremacy of
DUALIST – believes in the dichotomy of the law municipal law over international law could lead
to international anarchy and lawlessness, each
state discarding and repudiating such parts of
MUNICIPAL LAW INTERNATIONAL LAW
international law as are inconsistent with and
Issued by a political Not imposed upon by
inimical to its national interests, ambitions and
superior for observance simply adopted by states
policies.
by those under its as a common rule of
• It is a settled principle of international law that a
authority action among
sovereign cannot be permitted to set up his own
themselves
municipal law as a bar to a claim by a foreign
Consists mainly of Derived not from any
sovereign for a wrong done to the latter’s
enactments from the particular legislation but
subject.
lawmaking authority of from such sources as
each state international customs,
Constitution v. Treaty
international
conventions and general
Pacta Sunt Servanda – every state has the duty to
principles of law
carry out in good faith its obligations arising from
Regulates the relations Applies to the relations
treaties or other sources of international law and it
of individuals among inter se of states and
may not invoke provisions in its constitution or its
themselves or with their other international
laws as an excuse for failure to perform this duty
own states persons
Violations are redressed Violations are resolved
• The Philippine Constitution authorizes the
through local through state-to-state
Supreme Court to decide, among others, all
administrative and transactions ranging
cases involving the constitutionality of any treaty,
judicial processes from peaceful methods
international or executive agreement.
like negotiations and
• The Constitution authorizes the nullification of a
arbitration to the hostile
treaty not only when it conflicts with the
arbitrament of force like

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Constitution but also when it runs counter to an 5. The machinery of the United Nations which
act of Congress (Gonzales v. Hechanova) has proved to be an effective deterrent to
international disputes caused by the disregard
Basis of International Law of the law of nations.

1. NATURALISTS Enforcement of International Law

• Samuel Pufendorf
• Basis of International Law is the law of nature Is International law true law? Is we follow the
– a rule of human conduct independent of Austinian concept that a rule of action can be
positive enactment and even of special divine considered law only if it is prescribed by a political
revelation, and binding always and everywhere superior with power to punish violators, the
in view of its intrinsic reasonableness international law is NOT TRUE LAW. However,
• There is a natural and universal principle of right considering the more acceptable view that there are
and wrong independent of any mutual many norms of conduct that society may voluntarily
intercourse or compact adopt and obey although no specific penalty is
• Since individuals compose the state, whose will imposed for non-observance international law may
is but the result of the collective will of its be said to be TRUE LAW.
inhabitants, the state itself also becomes bound
by the law of nature OBSERVANCE – dependent on the volition of the
• International law is viewed not a law between entity which is supposed to be governed by the law
but above states
ENFORCEMENT – process by which such
2. POSITIVISTS observance may be compelled usually by force or at
• Ricahard Zouche least the threat of force
• The binding force of international law is derived
from the agreement of sovereign states to be Functions of International Law
bound by it
1. To establish peace and order in the
• International law is not the law of subordination
community of nations and to prevent the
but of coordination
employment of force including war in
international relations
3. ECLECTICS OR GROTIANS
2. To promote world friendship by leveling the
• Emerich de Vattel and Christian Wolf
barriers that have so far obstructed the fostering
• Hugo Grotius – Father of International law of a closer understanding in the family of
• The system of International law is based on the nations
dictate of right reason as well as the practice of 3. To encourage and ensure greater
states international cooperation in the solution of
certain common problems of a political,
Sanctions of International Law economic, cultural or humanitarian character
4. To provide for the orderly management of
SANCTIONS – the compulsive force of reciprocal relations of states on the basis of the
advantage and fear of retaliation substantive rules they have agreed to observe
as members of the international community
1. The inherent reasonableness of international
law and in their conviction that its observance Distinction with Other Concepts
will redound to the welfare of the whole society
of nations INTERNATIONAL MORALITY AND ETHICS –
2. The normal habits of obedience ingrained in embodies those principles which govern the
the nature of man as a social being relations of states from the higher standpoint of
3. The respect for world opinion held by most conscience, morality, justice, and humanity
states or their desire to project an agreeable
public image in order to maintain the goodwill INTERNATIONAL COMITY – rules of courtesy
and favorable regard of the rest of the family of observed by states in their mutual relations in that
nations violations of its precepts are not regarded as
4. The constant and reasonable fear present constituting grounds for legal claims
even in the most powerful of states that
violations of international law might visit upon INTERNATIONAL DIPLOMACY – relates to the
the culprit the retaliation of states objects of national or international policy and the
conduct of foreign affairs or international relations

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INTERNATIONAL ADMINISTRATIVE LAW – that of states and thus reflect the will or at least the
body of laws and regulations, now highly developed, concensus of the family of nations
created by the action of international conferences or
commissions, which regulate the relations and Custom
activities of national and international agencies with
respect to those material and intellectual interests • A practice which has grown up between
which have received an authoritative universal states and has come to be accepted as
recognition binding by the mere fact of persistent usage
over a long period of time (Fenwick).
Present State of International Law • PRINCIPLE OF EXTERRITORIALITY –
practice of granting immunities to foreign heads
• International law thus remains in a state of of states or diplomats in the territory of the local
transition as mankind struggles toward the state
millennium of harmony and order. • One defect of customary international law is
the difficulty of determining when a practice
can be considered to have hardened into
Chapter 2 custom and thus acquired obligatory
Sources of International Law character. Unlike conventional law, custom is
not formally promulgated at a definite time.

PRIMARY SECONDARY CUSTOM USAGE

International treaties or Decisions of courts A practice which has While also a long
conventions grown up between established way of doing
International customs Writings of highly states and has come to things by states, usage
qualified publicists be accepted as binding is not coupled with the
General principles of law by the mere fact of CONVICTION that it is
persistent usage over a obligatory and right
long period of time
Article 38 of the statute of the International Court of
Justice
General Principles of Law
1. The Court, whose function is to decide in
accordance with international law such disputes • Mostly derived from the law of nature and are
as are submitted to it, shall apply: observed by the majority of the states because
they are believed to be good and just.
a. international conventions, whether • General principles of law have become
general or particular, establishing rules universal in application because of the unilateral
expressly recognized by the contesting decision of a considerable number of states to
states; adopt and observe them in recognition of their
b. international custom, as evidence of a intrinsic merit.
general practice accepted as law; o Prescription – sets the maximum time
c. the general principles of law recognized after an event that legal proceedings
by civilized nations; based on that event may be initiated.
d. subject to the provisions of Article 59, o Estoppel – the principle that precludes
judicial decisions and the teachings of a person from asserting something
the most highly qualified publicists of contrary to what is implied by a
the various nations, as subsidiary previous action or statement of that
means for the determination of rukles of person or by a previous pertinent
law. judicial determination.
o Pacta sunt servanda – every state has
2. This provision shall not prejudice the power of the duty to carry out in good faith its
the Court to decide a case ex aequo et bono, if obligations arising from treaties or other
the parties agree thereto. sources of international law and it may
not invoke provisions in its constitution
Treaties or its laws as an excuse for failure to
perform this duty
• To become a direct source of international law, o Consent – refers to the provision of
a treaty must be concluded by a sizable number approval or agreement, particularly and
especially after thoughtful consideration

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o Res judicata – rule that a final judgment • Its rights are received and its responsibilities
on the merits by a court having imposed indirectly, through the instrumentality
jurisdiction is conclusive between the of an intermediate agency
parties to a suit as to all matters that
were litigated or that could have been Development of the International Community
litigated in that suit
Peace of Westphalia of 1648 – The treaties
Secondary Sources resulted from the big diplomatic congress, thereby
initiating a new system of political order in central
• In considering the decisions of courts, the law Europe, later called Westphalian sovereignty, based
does not distinguish between those rendered by upon the concept of a sovereign state governed by
international tribunals and arbitration bodies and a sovereign and establishing a prejudice in
those promulgated only by national courts international affairs against interference in another
• The doctrine of STARE DECISIS is not nation's domestic business.
applicable in international law and so the
decision of a court in one case will have only Treaty of Paris of 1856 – Settled the Crimean War
persuasive value in the decision of a between Russia and an alliance of the Ottoman
subsequent case Empire, the British Empire, Second French Empire,
• Writings of publicists, to qualify as a subsidiary and the Kingdom of Sardinia. The treaty, signed on
source of international law must be a fair and 30 March 1856 at the Congress of Paris, made the
unbiased representation of international law and Black Sea neutral territory, closing it to all warships,
made by an acknowledged authority in the field and prohibiting fortifications and the presence of
armaments on its shores. The treaty marked a
severe setback to Russian influence in the region.
Chapter 3
THE INTERNATIONAL COMMUNITY States

• A state may be defined as a group of people

living together in a defined territory under an
• The body of jurical entities, which are
independent government organized for political
governed by the law of nations.
ends and capable of entering into international
relations.
1. States
• Nation indicates a relation of birth or origin and
2. United Nations
implies a common race, usually characterized
3. Vatican City
by community of languages and customs.
4. Colonies and dependencies
5. Mandates and trust territories • The state is a legal concept while the nation is
only a racial or ethnic concept.
6. International administrative bodies
7. Belligerent communities
Elements of a State
8. Individuals
1. Permanent population/People
Subject and Object Distinguished
• A community of persons sufficient in number
SUBJECT OF INTERNATIONAL LAW and capable of maintaining a permanent
existence of the community and held together
• An entity that has rights an responsibilities
by a common bond of law.
under the law
• Has an international personality in that it can
2. Defined territory
directly assert rights and be held directly
• A fixed portion of the surface of the earth in
responsible under the law of nations
which the people of the state reside.
• Faculty of motivation
3. Government
OBJECT OF INTERNATIONAL LAW
• An agency through which the will of the state is
• The person or thing in respect of which rights
formulated, expressed and realized.
are held and obligations assumed by the
• For purposes of international law, it is the
subject
national government that has legal personality
• Not directly governed by the rules of
and it is the national government that is
international law
internally responsible for the actions of other
agencies and instrumentalities of the state.

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4. Sovereignty represent them as a whole for

• The external aspect or manifestation of certain limited and specified
sovereignty, that is, the power of the state to purposes.
direct its own external affairs without the
interference or dictation from other states. iv. Personal Union – comes into
• Sovereignty is the quicksand on which the being when two or more
foundations of international law are built. independent states are brought
together under the rule of the
Capacity of States same monarch.

• The recognition of states is generally v. Incorporate Union – a union of

considered a political act which may not be two or more states under a
compelled. central authority empowered to
• The restricted capacity of states to discharge direct both their external and
international obligations, owing either to treaty internal affairs and possessed
commitments or to its limited resources. of a separate international
personality.
Classification of States
2. DEPENDENT STATES – Subject to the control
1. INDEPENDENT STATES – A state which is not of other states in the direction of their external
subject to dictation from others with respect to affairs. Dependent states fall into two general
its external affairs. categories, the protectorate and the suzerainty.
One view is that the protectorate always retains
a. Simple States – one which is placed a greater measure of control over its external
under a single and centralized affairs than the suzerainty.
government exercising power over both
its internal and external affairs. 3. NEUTRALIZED STATES – An independent
state whether simple or composite may be
b. Composite States – consists of two or neutralized through an agreement with other
more states, each with its own separate states by virtue of which the latter will guarantee
government but bound under a central the integrity and independence provided it
authority exercising to a greater or refrains from taking any act that will involve it in
lesser degree control over their external war or other hostile activities except for
relations. defensive purposes.

The United Nations

i. Real Union – created when
two or more states are merged • Enjoys certain privileges an immunities such as
under a unified authority so that non-suability, inviolability of its premises and
they form a single international archives, and exemption from taxation
person through which they act • Has right of legation – can send diplomatic
as one entity. agents who possess the same rights accorded
regular envoys
ii. Federal Union – combination • Can assert diplomatic claim in behalf of its
of two or more sovereign states officials
which upon merger cease to be
states, resulting in the creation The Vatican City
of a new state with full
international personality to • Lateran Treaty – A political treaty recognizing
represent them in their external the full sovereignty of the Holy See in the State
relations. of Vatican City.
• Vatican city exercises certain prerogatives of
iii. Confederation – organization states, such as treaty making power and the
of states which retain their right of diplomatic intercourse.
internal sovereignty and to
some extent, their external Colonies and Dependencies – A colony or
sovereignty while delegating dependency is part and parcel of the parent state
the collective body power to through which all its external relations are

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transacted with other states. As such, therefore, it recent years have accorded to the individual a
has no legal standing in the family of nations. new status in international law: they say, and
with good reason, that private individuals should
Mandates and Trust territories now be regarded as subjects in the international
order, in view of the importance laid on them by
• Established to avoid the outright annexation of the following:
the underdeveloped territories taken from the
defeated powers and place their administration 1. The Charter of the United Nations
under some form of international supervision. Organization
• 3 kinds of trust territories 2. The Universal Declaration of
a. those held under mandate under the Human Rights
League of Nations 3. The Nuremberg and Tokyo War
b. those territories detached from the Tribunals for War Crimes
defeated states after WWII 4. The norm of general international
c. those voluntarily placed under the law which prohibits piracy
system by the states responsible for 5. Espionage rules; conventions
their administration punishing acts of illegitimate
warfare; rules of general
Belligerent Communities international law punishing private
individuals for breach of blockade
• When a portion of the population rises up in and carriage of contraband
arms against the legitimate government of the 6. The practice of certain courts of
state, the upheaval is ordinarily regarded as a permitting foreigners to appear and
mere internal affair. But when the conflict prosecute claims
widens and aggravates, it may become 7. The Genocide Convention of 1948
necessary to accord the rebels recognition of which directly holds liable not only
belligerency. By this, the recognizing state while states, but also private individuals,
not conferring all the rights of an independent for the mass extermination of a
state, concedes to the government recognized racial group
rights, and imposes upon it the obligations, of 8. The existence of rules safeguarding
an independent state in matters relating to the the rights of aliens and minorities
war being waved. 9. Punishment for the illegal use of the
• To be an international person and to be subject flag (This refers to vessels using
to the laws of war and neutrality, a belligerent the flag of state with which such
community must be recognized by the state. vessel is not registered)
10. The procedure in admiralty and
International Administrative Bodies maritime matters
11. The special status accorded to
May be vested with international personalities when refugees, and to displaced persons,
2 conditions concur: such as those fleeing from South
Vietnam, from Cambodia, and,
1. That their purposes are mainly non-political more recently, from Cuba.
2. That they are autonomous

Individuals Chapter 4
THE UNITED NATIONS
• Individuals have now come to be recognized as
possessing rights and obligations under
international law albeit these rights are limited. • The United Nations is an intergovernmental
These international obligations of individuals organization established on October 24, 1945
may include the obligation to comply with to promote international cooperation.
regulations of armed conflict, as well as to not • The United Nations is a symbol of man’s
commit international crimes such as aggression, undismayed determination to establish for all
genocide, terrorism, and other crimes against nations a rule of law that would forever banish
humanity. the terrible arbitrament of war in the solution of
• While traditional writers insist that private international disputes.
individuals are merely objects and not subjects
of international law, some recognized writers in

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• The League of Nations is the predecessor of the • Charter of the United Nations was prepared and
United Nations. It was formally dissolved in approved. The charter came into force on
1946. October 24, 1945
• While not a state or a superstate, the United
Nations was granted, among others, such The U.N. Charter
powers as now enable it to send and receive
diplomatic agents, conclude treaties, and • Preamble + 111 articles + Concluding
govern territories. provisions
• The UN Headquarters resides in international • Statute of the International Court of Justice
territory in New York City, with further main • May be considered a TREATY as it derives its
offices in Geneva, Nairobi, and Vienna. binding force from the agreement of parties to it
• May also be considered as a CONSTITUTION
History of the United Nations as it provides for the organization and
operations of the different organs of the UN
ATLANTIC CHARTER • applies to UN non-members in so far as may be
• August 14, 1941 necessary for the maintenance of international
• Signed by President Franklin D. Roosevelt and peace and security
Prime Minister Winston Churchill • Amendments à adopted by 2/3 of the General
Assembly and ratified by 2/3 of all members of
DECLARATION OF THE UNITED NATIONS the UN including the permanent members of the
• January 1, 1942 Security Council
• Signed by 26 countries and later on adhered by • General Conference à majority of the General
21 others Assembly and 9 members of the Security
Council for the purpose of reviewing the Charter
MOSCOW DECLARATION
• October 30, 1943 The Preamble to the Charter: Introduces the
• Signed by China, the Soviet Union, and the Charter and sets the common intentions that moved
United States which was the first formal step to the original members to unite their will and efforts to
the creation of the United Nations achieve their common purposes

TEHRAN CONFERENCE WE THE PEOPLES OF THE UNITED NATIONS

• November 28 – December 1, 1943 DETERMINED
• Held between Joseph Stalin, Franklin D.
to save succeeding generations from the scourge of war,
Roosevelt, and Winston Churchill
which twice in our lifetime has brought untold sorrow to
mankind, and
DUMBARTON OAKS PROPOSAL
• August 21 – October 7, 1944 to reaffirm faith in fundamental human rights, in the
• Washington Conversations on International dignity and worth of the human person, in the equal rights
Peace and Security Organization of men and women and of nations large and small, and
• Initial blueprint of the UN organization
to establish conditions under which justice and respect for
• Security Council was conceived
the obligations arising from treaties and other sources of
international law can be maintained, and
YALTA CONFERENCE
• February 11, 1945 to promote social progress and better standards of life in
• UN voting rules were agreed upon larger freedom,

SAN FRANCISCO CONFERENCE AND FOR THESE ENDS

• April 25 – June 26, 1945
to practice tolerance and live together in peace with one
• Delegates of fifty nations gathered at the City of another as good neighbours, and
the Golden Gate, representatives of over eighty
per cent of the world's population, people of to unite our strength to maintain international peace and
every race, religion and continent; all security, and
determined to set up an organization which
would preserve peace and help build a better to ensure, by the acceptance of principles and the
world institution of methods, that armed force shall not be used,
save in the common interest, and

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to employ international machinery for the promotion of the them in accordance with the present Charter.
economic and social advancement of all peoples, (PACTA SUNT SERVANDA)

HAVE RESOLVED TO COMBINE OUR EFFORTS TO 3. All Members shall settle their international
ACCOMPLISH THESE AIMS disputes by peaceful means in such a manner that
international peace and security, and justice, are not
Accordingly, our respective Governments, through endangered. (AMICABLE METHODS OF SETTLING
representatives assembled in the city of San Francisco, INTERNATIONAL DISPUTES)
who have exhibited their full powers found to be in good
and due form, have agreed to the present Charter of the 4. All Members shall refrain in their international
United Nations and do hereby establish an international relations from the threat or use of force against
organization to be known as the United Nations. the territorial integrity or political independence of any
state, or in any other manner inconsistent with the
Purposes of the United Nations. (PROHIBITS
Purposes: Constitute the raison d’etre of the UN
THREAT OR USE OF FORCE UPON
and are the aggregation of the common ends, the TERRITORIAL INTEGRITY OR POLITICAL
cause, and object of the Charter to which member INDEPENDENCE)
states collectively and severally subscribe.
5. All Members shall give the United Nations every
ARTICLE 1. The Purposes of the United Nations are: assistance in any action it takes in accordance
with the present Charter, and shall refrain from
1. To maintain international peace and security, and giving assistance to any state against which the
to that end: to take effective collective measures for United Nations is taking preventive or enforcement
the prevention and removal of threats to the peace, action. (COOPERATION BY MEMBER-STATES)
and for the suppression of acts of aggression or other
breaches of the peace, and to bring about by 6. The Organization shall ensure that states which are
peaceful means, and in conformity with the principles not Members of the United Nations act in
of justice and international law, adjustment or accordance with these Principles so far as may
settlement of international disputes or situations be necessary for the maintenance of international
which might lead to a breach of the peace; peace and security. (COOPERATION BY
NON_MEMBER STATES)
2. To develop friendly relations among nations
based on respect for the principle of equal rights and 7. Nothing contained in the present Charter shall
self-determination of peoples, and to take other authorize the United Nations to intervene in
appropriate measures to strengthen universal peace; matters which are essentially within the domestic
jurisdiction of any state or shall require the
3. To achieve international co-operation in solving Members to submit such matters to settlement under
international problems of an economic, social, the present Charter; but this principle shall not
cultural, or humanitarian character, and in prejudice the application of enforcement measures
promoting and encouraging respect for human rights under Chapter Vll. (DOMESTIC JURISDICTION
and for fundamental freedoms for all without CALUSE)
distinction as to race, sex, language, or religion; and
Membership
4. To be a centre for harmonizing the actions of
nations in the attainment of these common ends.
ORIGINAL OR CHARTER MEMBERS à states
who participated in the United Nations Conference
Principles: Deal with the methods and the
on International Organization or having previously
regulating norms according to which the United
signed the Declaration by the United Nations of
Nations and its members shall discharge their
January 1, 1942. The UN has 51 original members.
obligations and endeavour to achieve their common
ends.
ELECTIVE MEMBERS à admitted by decision of
the General Assembly upon the favorable
ARTICLE 2. The Organization and its Members, in pursuit
of the Purposes stated in Article 1, shall act in accordance recommendation of the Security Council
with the following Principles. • It must be a state
• It must be peace-loving
1. The Organization is based on the principle of the • It must accept the obligations of the Charter
sovereign equality of all its Members. (RIGHT OF à requires a formal declaration from the
EQUALITY) applicant
2. All Members, in order to ensure to all of them the
• It must be able to carry out these obligations
rights and benefits resulting from membership, shall • It must be willing to carry out these
fulfill in good faith the obligations assumed by obligations

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CAN THE GENERAL ASSEMBLY ADMIT AN A. The General Assembly

APPLICANT FOR MEMBERSHIP WITHOUT THE
FAVORABLE RECOMMENDATION OF THE General Assembly President: John William Ashe
SECURITY COUNCIL? NO! Two things are (Antigua and Barbuda)
required for admission: a recommendation of the
Security Council and a decision of the General • Consists of all members of the Organization,
Assembly. each of which is entitles to not more than 5
representatives and 5 alternates as well as such
Suspension of Members technical staff as it may need.
• Meets in regular annual session beginning on
• Effected by 2/3 of those present and voting in the third Tuesday of September or in special
the General Assembly upon favorable session at the call of a majority of its members
recommendation of at least 9 members of the or at request of the Security Council
Security Council including all its permanent • Each member has 1 vote
members.
• Functions of the General Assembly
• Suspension prevents a member from o DELIBERATIVE à initiating studies
participating in the meetings of the General and making recommendations toward
Assembly or from being elected to or continuing the progressive development of
to serve in the Security Council, the Economic international law
and Social Council or the Trusteeship Council. o SUPERVISORY à receiving and
• The member is still subject to the discharge of considering annual and special reports
its obligations under the Charter. from the other organs of the United
Nations
Expulsion of Members o FINANCIAL à considerationa nd
approval po the budget of the
• Expelled by 2/3 of those present and voting in Organization
the General Assembly upon the o ELECTIVE à election of the non-
recommendation of the Security Council by a permanent members of the Security
qualified majority vote. Council, all the emembers of the
Economic and Social Council, and
Withdrawal of Members some of the memebrs of the
Trusteeship Council, as well as, in
• No provision on withdrawal of membership was concurecne with the Security Council,
included in the UN Charter. The Secretary–General and the Judges
• San Francisco Conference à a member might of the International Court of Justice
withdraw from the United Nation if: o CONSTITUENT à admission of
a. The Organization was revealed to be members and amendement of the
unable to maintain peace or could do so United Nations Charter
only at the expense of law and justice
b. The member’s rights and obligations as B. Security Council
such were changed by a Charter
amendment in which it had not Security Council President: Zeid Ra'ad Zeid Al-
concurred or which it finds itself unable Hussein (Jordan)
to accept
c. An amendment duly accepted by the • Key organ in the maintenance of international
necessary majority either in the General peace and security
Assembly or in a general conference is • Consist of 15 members; 5 permanent members
not ratified. and 10 elective members
• BIG FIVE (permanent members) à China,
Organs of the United Nations
France, United Kingdom, Russia, United States
o Permamanet members were given a
1. General Assembly
prefered position because of the feeling
2. Security Council
that they were that states that, in view
3. Economic and Social Council
of their PRESTIGE and POWER, would
4. Trusteeship Council
be called upon to provide the leadership
5. International Court of Justice
and physical force that might be needed
6. Secretariat
to preserve the peace of the world.

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o Permanenet members have VETO

power and thereby can prevent • No memebre is allowed to vote on questions
agreement on non-procedural question concerning the pacific settlemet of a dispute to
even if it is supported by all the other which it is a party.
members of the security council. It may • The purpose of the Yalta formuala is to ensure
also exercise the co-called DOUBLE- the unity of the epermanent members in the
VETO by means of which it can measures to be taken in the pursuit of its
disapprove any proposal to consider a primary function of maintaining international
question merely procedural and peace and security.
thereafter vote against the question
itself on the merits. C. The Economic and Social Council
• Elective members are elected for a 2 year term
by the General Assembly • Originally consisted of 18 emembers but the
o Africa – 5 body was enlarged to 27 by amendmenets to
o Asia – 5 the Charter adopted in 1965. It was further
o Latin America – 2 expanded to 54 members by 1971.
o Western European and other states – 2 • Members are elected for a 3 year term and
o Eastern European states – 1 may be re-elected immediately.
• Current Elective members of the Security • Meet up in regular session as required ina
Council ccordaance with its rules and in special session
o January 1, 2013 – December 31, 2014 at the request of majority of its members.
• Responsible for the promotion of international
Country Regional bloc(s) economic and social cooperation.
Argentina Latin America and
Caribbean ARTICLE 55. With a view to the creation of conditions of
Australia Western Europe and Other stability and well-being which are necessary for peaceful
Rwanda Africa and friendly relations among nations based on respect for
Luxembourg Western Europe and Other the principle of equal rights and self-determination of
Republic of Korea Asia peoples, the United Nations shall promote:

o January 1, 2014 – December 31, 2015 1. higher standards of living, full employment, and
conditions of economic and social progress and
Country Regional bloc(s) development;
Lithuania Eastern Europe
Latin America and 2. solutions of international economic, social, health,
Chile and related problems; and international cultural and
Caribbean
educational cooperation; and
Chad Africa
Jordan Asia
3. universal respect for, and observance of, human
Nigeria Africa
rights and fundamental freedoms for all without
distinction as to race, sex, language, or religion.
• Voting in the Security Council is governed by
the YALTA FORMULA as devised at the
Crimea Conference and subsequently
incorporated in Article 27 of the Charter.

ARTICLE 27. Voting D. The Trusteeship Council

1. Each member of the Security Council shall have one
vote. • Has largely become obsolete with the
conversion of trust territories to full-pledged
2. Decisions of the Security Council on procedural miniature states
matters shall be made by an affirmative vote of nine • Charged with the duty of assisting the Security
members. Council and the General Assembly in the
administration of the international trusteeeship
3. Decisions of the Security Council on all other system
matters shall be made by an affirmative vote of nine
members including the concurring votes of the
permanent members; provided that, in decisions ARTICLE 86. Composition
under Chapter VI, and under paragraph 3 of Article
52, a party to a dispute shall abstain from voting. 1. The Trusteeship Council shall consist of the following
Members of the United Nations:

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• All questions are decided by a MAJORITY OF

a. those Members administering trust territories; THE JUDGES PRESENT, the quorum being 9
when the full Court is sitting
b. such of those Members mentioned by name in Article • The functions of the Court are to DECIE
23 as are not administering trust territories; and
CONTENTIOUS CASES and to RENDER
c. as many other Members elected for three-year terms by ADVISORY OPINIONS.
the General Assembly as may be necessary to ensure
that the total number of members of the Trusteeship ARTICLE 96
Council is equally divided between those Members of the
United Nations which administer trust territories and those 1. The General Assembly or the Security Council may
which do not. request the International Court of Justice to give an
advisory opinion on any legal question.
2. Each member of the Trusteeship Council shall
designate one specially qualified person to represent it 2. Other organs of the United Nations and specialized
therein. agencies, which may at any time be so authorized by
the General Assembly, may also request advisory
opinions of the Court on legal questions arising within
ARTICLE 87. Functions and Powers the scope of their activities.

The General Assembly and, under its authority, the

• The Jurisdiction fo the Court is based on the
Trusteeship Council, in carrying out their functions, may:
CONSENT of the parties as manifested under
1. consider reports submitted by the administering the “optional jurisdiction clause”
authority;
ARTICLE 36
2. accept petitions and examine them in consultation
with the administering authority; 1. The jurisdiction of the Court comprises all cases which
the parties refer to it and all matters specially provided for
3. provide for periodic visits to the respective trust in the Charter of the United Nations or in treaties and
territories at times agreed upon with the conventions in force.
administering authority; and
2. The states parties to the present Statute may at any
4. take these and other actions in conformity with the time declare that they recognize as compulsory ipso facto
terms of the trusteeship agreements. and without special agreement, in relation to any other
state accepting the same obligation, the jurisdiction of the
E. The International Court of Justice (ICJ) Court in all legal disputes concerning:

a. the interpretation of a treaty;

ARTICLE 93
b. any question of international law;
1. All Members of the United Nations are ipso facto
parties to the Statute of the International Court of c. the existence of any fact which, if established,
Justice. would constitute a breach of an international
obligation;
2. A state which is not a Member of the United Nations
may become a party to the Statute of the d. the nature or extent of the reparation to be
International Court of Justice on conditions to be made for the breach of an international
determined in each case by the General Assembly obligation.
upon the recommendation of the Security Council.
• It is based in the Peace Palace in The Hague, 3. The declarations referred to above may be made
Netherlands unconditionally or on condition of reciprocity on the part of
• Composed of 15 members who are electde by several or certain states, or for a certain time.
absolute makority vote in the General Assembly
and the Security Council. 4. Such declarations shall be deposited with the
Secretary-General of the United Nations, who shall
• Members of the Court have a term of 9 years transmit copies thereof to the parties to the Statute and to
and may be re-elected. the Registrar of the Court.
• No judge can be removed unless in the
unanimous opinion of the other members, he 5. Declarations made under Article 36 of the Statute of
has ceased to fulfill the required conditions. the Permanent Court of International Justice and which
• The court shall elect its President and Vice- are still in force shall be deemed, as between the parties
Preseidnet with a 3 year term with re-election to the present Statute, to be acceptances of the
compulsory jurisdiction of the International Court of

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Justice for the period which they still have to run and in
accordance with their terms.
Chapter 5
THE CONCEPT OF THE STATE
6. In the event of a dispute as to whether the Court has
jurisdiction, the matter shall be settled by the decision of
the Court.
As the basic unit of the international community, the
• Current iCJ judges state is the principal subject of international law.

Peter Tomka Slovakia Creation of the State

Bernardo Sepúlveda Amor Mexico
Hisashi Owada Japan • State à a group of people living together in a
Ronny Abraham France definite territory under an independent
Sir Kenneth Keith New Zealand government organized for political ends and
Mohamed Bennouna Morocco capable of entering into international relations
Leonid Skotnikov Russia • States are created through revolution,
Antônio Augusto Cançado unification, secession, assertion of
Brazil
Trindade
independence, agreement and attainment of
Abdulqawi Ahmed Yusuf Somalia
Sir Christopher Greenwood United Kingdom
civilization
Xue Hanqin China
Joan E. Donoghue United States The Principle of State Continuity
Giorgio Gaja Italy
• From the moment of its creation, the state
F. The Secretariat continues as a juristic being notwithstanding
changes in its circumstances, provided only that
Secretary-General: Ban Ki-Moon (Repubic of they do not result in loss of any of its essential
Korea) elements.
Deputy Secretary-General: Jan Eliasson • FENWICK à “Once its identity as an
(Sweden) international person has been fixed and its
position in the international community
established, the state continues to be the same
• The Secretariat shall comprise a Secretary-
corporate person whatever changes may take
General and such staff as the Organization may
place in its international operation and
require. The Secretary-General shall be
government.”
appointed by the General Assembly upon the
recommendation of the Security Council. He • The principle of Continuity was explained in the
shall be the chief administrative officer of the Sapphire Case;
Organization.
FACTS: French vessel Euryale had a collision
• The Secretary-General shall act in that capacity
with the vessel Sapphire. Louis Napoleon as
in all meetings of the General Assembly, of the
Emperor of France filed a suit in California
Security Council, of the Economic and Social
court a civil claim for damges in connection with
Council, and of the Trusteeship Council, and
the collision but was subsequently deposed
shall perform such other functions as are
while the case was pending.
entrusted to him by these organs. The
Secretary-General shall make an annual report
ISSUE: WON the suit has been
to the General Assembly on the work of the
abated/extinguishes by the recent deposition of
Organization.
the Emperor?
• The Secretary-General may bring to the
attention of the Security Council any matter
HELD: The US Supreme Court says the
which in his opinion may threaten the
reigning sovereign represents the national
maintenance of international peace and security.
sovereignty, and the sovereignty is perpetual
• In the performance of their duties the Secretary-
and continuous. On the deposition of the
General and the staff shall not seek or receive
Emperor, sovereignty did not change but merely
instructions from any government or from any
the person or persons to whom it resides. A
other authority external to the Organization. change in such representative works no change
They shall refrain from any action which might in the national sovereignty or its rights. In the
reflect on their position as international officials
case at bar, the next successor recognized by
responsible only to the Organization.
the government is competent to carry on a suit
already commenced and receive the fruits of it.

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the new sovereign or are contrary to the

Extinction of the State institutions of the successor state
o Treaties of political and even
• A statemay be considered “extinct” or “dead” commercial nature , as well as treaties
when there is a radical impairment or actual of extradition, are also discontinued,
loss of one or more of the essential elements of except those dealing with local rights
the state. and duties, such as those establishing
• Ways in which a state can be extinguished: easements and servitudes
o Population may be completely wiped o All the right of the predecessor state are
out by an epidemic or may emigrate en inherited by the successor state but not
masse the liabilities
o Government may be overthrown without o The Successor state can determine
being replaced, resulting in anarchy which liabilities to assume and which to
o State may merge with another state or reject solely on the basis of its own
its territory be dismembered or annexed discretion
by others
o If it is a federation, it may be broken up Succession of Governments
or dissolved by the withdrawal of all its
members • The integrity of the state is not affected.; the
o If it’s an independent state that state continues as the same international
becomes dependent, there is to the person except only that its lawful representative
extent that it is deprived of freedom to is changed.
direct its external affairs a partial loss if • It is well settled that as far as the rights of the
its international personality predecessor government are concerned, they
are inherited “in toto” by the successor
Succession of States government.
• Where the new government was organized by
• State succession takes place when one state virtue of a constitutional reform duly ratified in
assumes rights and some of the obligations of a plebiscite, the obligations of the replaced
another because of the certain changes in the government are also completely assumed by
condition of the latter. the former.
• Kinds of state succession: • Where the new government was established
1. UNIVERSAL SUCCESSION – when a state through violence as by a revolution, it may
is annexed to another state or is totally lawfully reject the purely personal or political
dismembered or merges with another state obligations of the predecessor government but
to form a new state not those contracted by it in the ordinary course
2. PARTIAL SUCCESSION – takes place of official business.
when a portion of the territory of a state
secedes or ceded to another or when an
independent state becomes a protectorate Chapter 6
or a suzerainty or when a dependent state RECOGNITION
acquires full sovereignty
Consequences of State Succession
• The admission of an entity to the family of
• Upon a change of sovereignty as a result of nations is dependent on the acknowledgement
state succession, the allegiance of the
of its status by those already within the fold and
inhabitants of the predecessor state in the
their willingness to enter into relations with it as
territory affected is “transferred to the
a subject of international law.
successor state”
• Recognition as DECLARATORY merely affirms
o People are naturalized “en masse”
the pre-existing fact that the entity being
o Political laws of the former sovereign
recognized already possesses the status of an
are automatically abrogated and may
international person. as thus understood,
be restored only by a “positive ct” on
recognition is highly political and discretionary.
the part of the new sovereign.
• Recognition as CONSTITUTIVE means that it is
o Non-political laws like those dealing
the last indispensable element that converts or
with familial relations are deemed
constitutes the entity being recognized into an
continued unless they are changed by
international person. recognition in this light is

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regarded as mandatory and legal and may be • DE JURE à the legal, legitimate government
demanded as a matter of right. of a state and is so recognized by other states.
• DE FACTO à a government wherein all the
Objects of Recognition attributes of sovereignty have, by usurpation,
been transferred from those who had been
1. Recognition of State à irrevocable and legally invested with them to others, who,
imports the recognition of its government sustained by a power above the forms of law,
2. Recognition of Government à may be claim to act and do really act in their stead
withdrawn and does not necessarily signify the
existence of a state as the government may be De jure De facto
that of a mere colony Relatively permanent Provisional
3. Recognition of Belligerency à rebels are Vests title in the Does not
accorded international personality only in government to
connection with the hostilities they are waging its properties abroad
Brings about full Limited to certain
Kinds of Recognition diplomatic relations juridical relations
1. EXPRESS RECOGNITION à may be verbal or Three Kinds of De Facto Government
in writing
2. IMPLIED RECOGNITION à when the 1. That which is established by the inhabitants
recognizing state enters into official intercourse who rise in revolt against and depose the
with the new member by exchanging diplomatic legitimate regime;
representatives with it. In the case of a 2. That which is established in the course of war
belligerent community, recognition is implied by the invading forces of one belligerent in the
when the legitimate government blockades a territory of other belligerent, the government of
port held by the former or when the other states which is also displaced; and,
observe neutrality in the conflict. 3. That which is established by the inhabitants of a
state who secede therefrom without
The Act of Recognition is Indicative of the overthrowing its government.
following Intentions:
• TOBAR OR WILSON PRINCIPLE: Recognition
a. To treat with the new state as such; shall not be extended to any government
b. To accept the new government as having established by revolution, civil war, coup d'etat
authority to represent the state; or other forms of internal violence until the freely
c. To recognize in the case of insurgents that they elected representatives of the people have
are entitled to exercise belligerent rights. organized a constitutional government
Recognition of States à The recognition of a new
• STIMSON PRINCIPLE: It is incumbent upon
state is the free act by which one or more states
the League of Nations not to recognize any
acknowledge the existence on a definite territory of
situation, treaty, or agreement, which may be
a human society politically organized, independent
brought about by means contrary to the
of any other existing state, and capable of observing
Covenant of the League of Nations or the Pact
the obligations of international law, and by which
of Paris
they manifest therefore their intention to consider it
a member of the international community.
• ESTRADA DOCTRINE: It would, as it saw fit,
Recognition of Government
continue or terminate its relations with any
country in which a political upheaval had take
• The recognition of the new government of a
place
state which has been already recognized is the
free act by which one or several states
• In any event, the practice of most states now is
acknowledge that a person or a group of
to extend recognition to a new government only
persons are capable of binding the state which
if it is shown that it has control of the
they claim to represent and witness their
administrative machinery of the state with
intention to enter into relations with them.
popular acquiescence (Objective test) and that
it is willing to comply with its international
Two Kinds of Governments
obligations (Subjective test).

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Effects of Recognition of States and Consequences of Recognition of Belligerency à

Governments Upon recognition by the parents state, the
belligerent community is considered a separate
1. Full diplomatic relations are established except state for purposes of the conflict it is waging against
where the government recognized is de facto; the legitimate government. Their relations with each
2. The recognized state or government acquired other will, thenceforth and for the duration of the
right to sue in the courts of the recognizing state. hostilities, be governed by the laws of war, and their
relations with other states will be subject to the laws
It is error, however, to suppose that non-suability of of neutrality.
the foreign state or government is also an effect of
recognition, as this is an attribute it can claim
whether or not it has been recognized by the local Chapter 7
state. The applicable rule is the doctrine of state THE RIGHT OF EXISTENCE AND SELF-
immunity. It has been held that to cite “a foreign DEFENSE
sovereign in the municipal courts of another state”
would be “an insult which he is entitled to resent”
and would certainly “vex the peace of nations.”
• Once a state comes into being, it is invested
3. The recognized state or government has a right with certain rights described as fundamental.
to the possession of the properties of its • Fundamental Rights of A State
predecessor in the territory of the recognizing 1. Right to national existence and national
state. defense
4. All acts of the recognized state or government 2. Right of sovereignty and independence
are validated retroactively, preventing the 3. Right of equality
recognizing state from passing upon their 4. Right of property and jurisdiction
legality in its own courts. 5. Right of legation or diplomatic intercourse
• The most important of these rights is the right of
Recognition of Belligerency existence and self-defense, because all other
rights are supposed to flow or be derived from it.
• A belligerency exists when the inhabitants of a By virtue of this right, the state may take
state rise up in arms for the purpose of measures, including the use of force, as may be
overthrowing the legitimate government. necessary to counteract any danger to its
• Conditions for A Belligerent Community to Be existence.
Recognized
1. There must be an organized civil Requisites of Right
government directing the rebel forces;
2. The rebels must occupy a substantial • In Article 51 of the Charter of the United Nations,
portion of the territory of the state; it is provided that –
3. The conflict between the legitimate ARTICLE 51
government and the rebels must be
serious, making the outcome uncertain; Nothing in the present Charter shall impair the inherent
right of individual or collective self-defense if any armed
and, attack occurs against a member of the United Nations,
4. The rebels must be willing and able to until the Security Council has taken the measures
observe the laws of war. necessary for the maintenance of international peace and
security.
Insurgency Belligerency
Initial stage of a Exists when the • The presence of an “armed attack” to justify the
belligerency, which is inhabitants of a state exercise of the right of the self- defense under
more serious and wide rise up in arms for the this article suggests that forcible measures may
spread purpose of overthrowing be taken by a state only in the face of “necessity
the legitimate of self-defense, instant, overwhelming and
government leaving no choice of means and no moment for
Directed by military Under a civil deliberation.”
authorities government • The right may be resorted to only upon a clear
Not usually recognized There are settled rules showing of a grave and actual danger to the
on the recognition fo security of the state, and, furthermore, the self-
belligerency defensive measures must be “limited by the
necessity and kept clearly within it.”

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contravention of the conditions provided for in the

Regional Arrangements agreement or any extension of their presence in such
territory beyond the termination of the agreement;
Collective self-defense is recognized not only in
f. The action of the state in allowing its territory, which it
Article 51 of the Charter of the United Nations but
has placed at the disposal of another state, to be used by
also in Art. VII on Regional Arrangements that other state perpetrating an act of aggression against
a third state; and,
ARTICLE 52
g. The sending by or on behalf of a state of armed force
Nothing in the present Charter precludes the existence of against another state of such gravity as to amount to the
regional arrangements or agencies for dealing with such acts listed above, or its substantial involvement therein.
matters relating to the maintenance of international peace
and security as are appropriate for regional action
provided that such arrangements or agencies and their
activities are consistent with the Purposes and Principles Chapter 8
of the United Nations. THE RIGHT OF INDEPENDENCE

The Balance of Power

• Sovereignty is the supreme, uncontrollable
• One reason for the organization of regional power inherent in a state by which that state is
arrangements is to provide for the balance of governed. It is “the supreme power of the State
power, which Vattel described as “an to command and enforce obedience, the power
arrangement of affairs so that no state shall be to which, legally speaking, all interests are
in position to have absolute mastery and practically subject and all wills subordinate.
dominion over others.” • Sovereignty enables the state to make its own
• The maintenance of this balance of power has decisions vis-à-vis other states and vests it with
in a very real way contributed to international competence to enter into relations and
peace although, being an “armed peace,” it is agreements with them.
far from the ideal sought in the articles of faith of
the United Nations. Two Aspects of Sovereignty

Aggression Defined 1. Internal Sovereignty – refers to the power of

the state to direct its domestic affairs, as when it
Definition of aggression as adopted by the U.N. establishes its government, enacts laws for
General Assembly on December 14, 1974: observance within its territory.

ARTICLE 1 2. External Sovereignty – signifies the freedom

of the state to control its own foreign affairs, as
AGGRESSION is the use of armed force by a State when it concludes treaties, makes war or peace,
against the sovereignty, territorial integrity or political and maintains diplomatic and commercial
independence of another state, or in any other relations. It is often refered as independence.
manner inconsistent with the Charter of the United
Nations. Ideal of Independence

ARTICLE 3. Any of the following acts qualify as an act of ARTICLE 73

aggression
Members of the United Nations which have or assume
a. The invasion or attack by the armed forces of a state of responsibilities for the administration of territories whose
the territory of another state; peoples have not yet attained a full measure of self-
government recognize the principle that the interests of
b. Bombardment by the armed forces of a state against the inhabitants of these territories are paramount, and
the territory of another state; accept as a sacred trust the obligation to promote to the
utmost, within the system of international peace and
c. The blackade of the ports or coasts of a state by the security established by the present Charter, the well-
armed forces of another state; being of the inhabitants of these territories, and, to this
end:
d. An attack by the armed forces on land, sea or air
forces, or marine or air fleets of another state; xxx
e. The use of armed forces of one state in the territory of
another state with the agreement of the receiving state, in

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2. to develop self-government, to take due account of the public debts.

political aspirations of the peoples, and to assist them in • This doctrine was embodied in the Hague
the progressive development of their free political Convention of 1907 through the provision that
institutions, according to the particular circumstances of “the Contracting Powers agree not to have
each territory and its peoples and their varying stages of
recourse to armed force for the recovery of
advancement;
contract debts claimed from the government
by the government of another country as
Nature of Independence being due to its nationals.”
• This rule was, however, dissipated by the
• Independence cannot be regarded as importing Porter Resolution. Under such, intervention
absolute freedom. It only means freedom from was permitted if the debtor state refused an
control by any other state or group of states and offer to arbitrate, prevented agreement on the
not freedom from restrictions that are binding on compromis, or having agreed thereto, refused to
all states forming the family of nations. abide by the award of the arbitrator.
• Thus, a state may not employ force or even the
threat of force in its relations with other states
because this is prohibited by Article 2 of the
Chapter 9
Charter of the United Nations. It may adhere to
THE RIGHT OF EQUALITY
the maxim of Pacta Sunt Servanda.
• The principle of mare liberum will prevent it
from arrogating to itself the exclusive use of the
open seas to the detriment of other states. • Based on Article 2 of the Charter of the United
• Under the laws of neutrality, it must acquisce Nations
in the exercise of certain belligerent rights even • Montevido Convention of 1933 à “States are
if this might impair its own interests or those of juridically equal, enjoy equal rights and equal
its nationals. capacity to exercise these rights, and have
equal duties. The rights of each State depend
Pacta Sunt Servanda – the observance of a state not upon its power to ensure the exercise
to treaties with other state in good faith. thereof, but upon the mere fact of its existence
as a person under international law.”
Intervention
Essence of Equality à All rights of a state,
• In addition, the state must abstain from regardless of their number, must be observed and
intervention. Even as it expects its respected by the international community in the
independence to be respected by other states, same manner that the rights of other states are
so too must it be prepared to respect their own observed and respected.
independence.
• INTERVENTION à an act by which a state Legal Equality v. Factual Equality
interferes with the domestic or foreign
affairs of another state or states through the • From the viewpoint of strictly legal rules, it is
employment of force or the threat of force. apparent that absolute equality among states is
• The use of force is only allowed under the still a distant and well nigh impossible aspiration.
Charter of the United Nations when… Under the Charter of the United Nations, for
1. it is exercised as an act of self-defense, example, non-procedural questions are decided
or by the Security Council only with the
2. when it is decreed by the Security concurrence of the Big Five, any of which may
Council as a preventive or enforcement defeat a proposal through the exercise of the
action for the maintenance of veto. This is true also with respect to the
international peace and security ratification of any proposal to amend the
Charter.
The Drago Doctrine • But this rules of equality itself sometimes poses
serious questions of inequality. This is so
• The Drago Doctrine refers to a principle because it does not take into account the
asserted by Argentine Minister of Foreign realities of international life, including the
Affairs Luis María Drago in December 29, 1902. greater stakes of the more populous states in
The doctrine held that international law did not the decision of questions involving the entire
authorize European powers to use armed community of nations. Such decisions may
intervention to force American republics to pay affect the interests, not of individual states as

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such, but of the whole of humanity itself without Note: If only possession, it will only serve as
distinctions as to color, nationality, or creed. inchoate title of discovery, barring other states from
entering the territory until the lapse of a reasonable
period within which the discovering state may
Chapter 10 commence to administer. Once the claimant begins
TERRITORY exercising sovereignty, the title ripens into a full title.
Otherwise, the inchoate title is extinguished and the
territory becomes res nullius again.
Territory
Inchoate Title of Discovery à performs the
function of barring other states from entering the
• The fixed portion of the surface of the earth
territory until the lapse of a reasonable period within
inhabited by the people of the state.
which the discovering state may establish a
• Territory must be permanent and indicated with
settlement thereon and commence to administer it.
precision because its limits generally define the
jurisdiction of the state.
Prescription
• Right to acquire territories is regarded as one of
the fundamental attributes of the state.
• Requires long, continued and adverse
• This right can be asserted only in accordance possession to vest acquisitive title in the
with the generally accepted principles of claimant. However, there is no rule yet fixing the
international law and always with due regard for period of possession necessary to transfer title
the territorial integrity of other states. to the territory from the former to the
subsequent sovereign.
Acquisition and Loss of Territory
Cession
Acquisition Loss
Discovery and Abandonment or • A method by which territory is transferred from
Occupation Dereliction one state to another by agreement between
Prescription Cession them. Usually effected by familiar transactions
Cession Subjugation such as sale, donation, barter or exchange and
Subjugation Prescription testamentary disposition or even forced method
Accretion Erosion (forced cession).
Revolution • Being essentially consensual, transfer of title is
Natural Causes effected upon the meeting of the minds of the
parties and not on the actual delivery of the
Delivery and Occupation territory to the acquiring state.

• The original mode of acquisition by which the Subjugation

territory not belonging to any state, or terra
nullius, is placed under the sovereignty of • Territory is deemed acquired by subjugation
discovering state. when, having been previously conquered or
• The territory need not be uninhabited provided occupied in the course of war by the enemy, it is
the natives are not sufficiently civilized and can formally annexed to it at the end of that war.
be considered as possessing not rights of • Conquest alone confers only an inchoate right
sovereignty but only rights of habitation. on the occupying state; it is the formal act of
• Exception: Open Seas and Outer Space are res annexation that completes the acquisition.
communes and not susceptible to discovery and
occupation. Accretion

Requisites of a valid discovery & occupation • Based on the principle of accesio cedat
principali
1. Possession/occupation, claimed on behalf of • Accomplished through both natural and artificial
the state represented by the discoverer through processes, such as the gradual deposit of soil
the formal proclamation and symbolic act of on the coasts through the action of the water, by
raising the national flag of the territory reclamation projects, formation of islands, which
2. Administration can correspondingly extends the breadth of its
territorial sea if occurring within the maritime
belt of the state.

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main channel and not of the river

itself.
o Where the boundary river changes
its course by a gradual and normal
Abandonment or Dereliction process, such as accretion or
erosion, the dividing line follows the
• Territory is lost by dereliction when the state new course; but if the deviation is
exercising sovereignty over it physically violent and abrupt, the boundary
withdraws from it with the intention of line will continue to be laid on the
abandoning it altogether. old bed of the river, in the absence
• Two conditions must concur namely, the act of of a contrary agreement.
withdrawal and the intention to abandon. o As for dividing line on a bridge
across a boundary river, the same
Erosion/Natural Causes à Islands submerged to is laid on the middle of the bridge
the bottom of the sea due to volcanic eruption regardless of the location of the
channel underneath, unless
Components of Territory otherwise provided by the riparian
states.
(a) Terrestrial Domain à refers to the land mass • Bays – a well-marked indentation whose
which maybe integrated, dismembered, partly penetration is in such proportion to the
bounded by water, consists of one whole island width of its mouth as to contain land-locked
or consisting of several islands (coastal waters and constitute more than a mere
archipelago vs. mid-ocean archipelago). curvature of the coast. An indentation shall
• Coastal archipelagos are those situated so not be regarded as a bay unless its area is
close to a mainland that they may as large as or larger than that of a semi-
reasonably be considered part and parcel circle whose diameter is a line drawn
thereof, forming more or less an outer across the mouth of that indentation.
coastline from which it is natural to measure o If the distance between the low
the marginal seas. water marks of the natural entrance
• Outlying (mid-ocean) archipelagos are points of a bay does not exceed
groups of islands situated out in the ocean twenty-four miles, a closing line
at such a distance from the coasts of firm maybe drawn between these two
land as to be considered as an independent low-water marks, and the waters
whole rather than forming part of an outer enclosed thereby shall be
coastline of the mainland. considered internal waters.
o This does not apply to the so-called
(b) Maritime and Fluvial Domain à consists of historic bays, whose waters have
the bodies of water within the land mass and always been regarded as internal
the waters adjacent to the coasts of the state up by the international community
to a specified limit; includes the internal waters notwithstanding that the openings
in the land-locked lakes, the rivers and are more than twenty-four miles in
manmade canals within the land mass, bays, width.
gulfs and straits as well as the external waters • Territorial Sea – the belt of waters adjacent
in the territorial sea. to the coasts of the state excluding the
• Rivers – maybe classified into national internal water in bays and gulfs, over which
(those are completely situated within the the state claims sovereignty and jurisdiction.
territory of the state), multi-national (those • The UN Conferences on the Law of the
that flow through the territories of several Sea – the Convention on the Law of Sea,
states), international (one that is navigable became effective on November 16, 1994,
from the open sea and is open to the use of provides for a uniform breadth of 12 miles
vessels from all states) and boundary river for the territorial sea, contiguous zone of 12
(that which divides the territories of riparian miles from the outer limits of the territorial
states, states located on a river bank). sea, and an economic zone or patrimonial
o In the absence of specific sea of 200 miles from the low water mark of
agreement between the states, the the coastal state.
boundary line is laid on the rivet • The Archipelago Doctrine – Article 1,
according to the thalweg doctrine, Section 1 of the Philippine Constitution:
that which is on the center of the Archipelagic Doctrine – The waters around,

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between and connecting the islands of the their breadth and dimensions, form part of the
archipelago, regardless of their breadth and internal waters of the Philippines;
dimensions, form part of the internal waters 3. All the waters beyond the outermost islands of
of the Philippines. the archipelago but within the limits of the
o The Philippines’ position is that all boundaries set forth in the aforementioned
the several islands should be treaties;
considered one integrated whole 4. The baselines from which the territorial sea of
instead of being fragmented into the Philippines is determined consists of straight
separate units each with its own lines joining appropriate points of the outermost
territorial sea. Otherwise, the islands of the archipelago without prejudice to
waters outside each of these the delineation of the baselines of the territorial
territorial seas will be regarded as sea around the territory of Sabah, situated in
high seas and thus be open to all North Borneo, over which the Philippines has
foreign vessels to the prejudice and acquired dominion and sovereignty.
of our economy and the national
security. Methods of Defining the Territorial Sea
o ARCHIPELAGO is a group of
islands, including part of islands, 1. Normal Baseline Method à the territorial sea
interconnecting waters and other is simply drawn from the low water mark of the
natural features which are so coast, to the breadth claimed, following
closely interrelated that such sinuosities and curvatures but excluding the
islands, waters and other natural internal waters in bays and gulfs
features form one basic 2. Straight Baseline Method à straight lines are
geographical, economic and made to connect appropriate points in the coast
political entity. without departing radically from its general
o In defining the internal waters of the direction. Waters on the landward side of the
archipelago, straight baselines baselines of the territorial sea form part of the
should be drawn to connect internal waters of the state.
appropriate points in the outermost
islands without departing radically
from the general direction of the Chapter 11
coast so that the entire archipelago JURISDICTION
shall be encompassed as one
whole territory. The waters inside
this base line shall be considered
Jurisdiction
internal and thus, not subject to
entry by foreign vessels without the
• The authority exercised by a state over persons
consent of the local state.
and things within or sometimes outside its
o States advocating the Archipelagic
territory, subject to certain exceptions.
Doctrine: Philippines, Indonesia,
• Jurisdiction may be exercised by a state over
Mauritius, Fiji, and Bahamas
o Its nationals
o The terrestrial domain
(c) Aerial Domain à the airspace above the
o The maritime and fluvial domain
terrestrial domain and the maritime and fluvial
o The continental shelf
domain of the state to an unlimited altitude but
o The open seas
not including the outer space.
o The aerial domain
o Outer space
Basis of Article 1 on National Territory of the
o Other territories
1987 Philippine Constitution
Personal Jurisdiction/Nationality Principle
Based on RA 3046, as amended by RA5446

1. All the waters within the limits set forth in the • Power exercised by the state over its nationals.
Treaty of Paris between Spain and United • It is based on the theory that a national is
States, Treaty of Washington between the two entitled to the protection of his state wherever
countries and Treaty between US and Great he maybe and is bound to it by a duty of
Britain; obedience and allegiance.
2. All the waters around, between and connecting • This duty follows him even when he is outside
the islands of the archipelago, regardless of the territory of his state and he may not

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ordinarily be excused from it unless he is prejudicial to the peace, good order or security of
prepared to renounce hos own nationality. At the coastal state.
that, some states do not even allow this under Arrival under stress or voluntary entrance maybe
the doctrine of indelible allegiance. due to lack of provision, unseaworthiness of the
• Provisions of Law: (1) laws on family rights and vessel, inclement of weather or cases of force
duties, status and conditions and legal capacity majeure like pursuit by pirates,
of persons; (2) intestate and testamentary
succession; and (3) taxation of citizens even if 5. Foreign armies passing through or stationed
not residing in the Philippines. Crimes under in its territories with its permission
Article 2 of the RPC are punished even if
committed outside Philippine territory 6. Such other persons or property, including
organizations like United Nations, over
Territorial Jurisdiction/Territoriality Principle which it may, by agreement, waive
jurisdiction
• The general rule is that a state has jurisdiction
over all persons and property within its territory. Land Jurisdiction
• The Schooner Exchange v. McFadon: “The
jurisdiction of a nation within its own territory, is • Save in the foregoing cases, everything found
exclusive and absolute. It is susceptible of no within the terrestrial domain of the state is under
limitation not imposed by itself.” its jurisdiction.
• Personal jurisdiction antedated territorial • Nationals and aliens, including non-residents,
jurisdiction but the latter is more effective are bound by its laws, and no process from a
because it is asserted by the state over persons foreign government can take effect for or
and property within its immediate control and against them within the territory of the local
subject to its coercive processes. state without its permission.
• As against all other states, the local state has
The state cannot exercise jurisdiction even exclusive title to all property within its territory,
within its own territory over: which it may own in its own corporate capacity
or regulate when under private ownership
1. Foreign head of states, diplomatic through its police power or forcibly acquire
representatives and consuls to a certain through the power of eminent domain.
degree
Maritime and Fluvial Domain
Foreign head of states are exempt because of the
sovereign equality of states and on the theory that a • The internal waters of a state are assimilated to
contrary rule would disturb the peace of nations. the land mass and subjected to the same
Diplomats and consuls are exempt in order that they degree of jurisdiction exercised over the
may have full freedom in the discharge of their terrestrial domain. Covered by this rule are the
official functions. so-called enclosed waters, such as the land-
locked lakes, national rivers, and man-made
2. Foreign state property, including embassies, canals.
consulates, public vessels engaged in non- • Civil, criminal and administrative jurisdiction is
commercial activities exercised by the flag state over its public
vessels wherever they maybe, provided they
Public vessels are regarded as extensions of the are not engaged in commerce.
territory of the foreign state • Regarding foreign merchant vessels docked in
a local state or bay, jurisdiction is exercised
3. Acts of state over them by the coastal state in civil matters,
but criminal jurisdiction is determined according
4. Foreign merchant vessels exercising the to either:
right of innocent passage or arrival under o English Rule à The coastal state
stress shall have jurisdiction over all
offense committed on board, except
Innocent Passage à navigation through the where they do not compromise the
territorial sea of a state for the purpose of traversing peace of the port
that sea without entering internal waters or of o The Philippines adheres to the
proceeding to internal water or making for the high English Rule
seas from internal waters, as long as it not

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o French Rule à The flag state shall • Extends 200 nautical miles from the coast or the
have jurisdiction over all offense baselines
committed on board except where it • All living and non-living resources found therein
compromises the peace of the port belong exclusively to the coastal state.
• As provided in the Convention of the Law of
Sea, archipelagic sealanes are to be laid over Open Seas
which foreign ships will have the right of • Are res communes and available to the use of
passage as if they were open seas. all states for purposes of navigation, flying over
them, laying submarine cables, fishing or
Contiguous Zone maybe used to wage hostilities in times of war.
• However, in the following instances, jurisdiction
• “Protective jurisdiction” maybe exercised by the state:
• 12 nautical miles from the outer limits of the 1. Over its vessels à The flag state has
territorial sea, the coastal state may exercise jurisdiction over its public vessels at all
the control necessary to: times since it is considered as an extension
(a) Prevent infringement of its customs, of the territory of the state, whether they be
fiscal, immigration or sanitary in its own territory, in the territory of other
regulations within its territory or states or on the open seas. Merchant
territorial sea vessels, on the other hand, are under its
(b) Punish infringement of the above jurisdiction when they are within its territory,
regulations within its territory or when jurisdiction is waived or cannot be
territorial sea exercised by the territorial sovereign, or
when such vessels are on the open seas.
Continental Shelf 2. Over pirates à Pirates are enemies of all
mankind and maybe captured on the open
• Refers to: (a) seabed and subsoil of the seas by the vessels of any state, to whose
submarine areas adjacent to the coast but territory they maybe brought for trial and
outside the area of the territorial sea, to a depth punishment. Where a pirate vessel attempts
of two hundred meters or, beyond that limit, to to escape into the territorial waters of
where the depth of the super-adjacent waters another state, the pursuing vessel may
admits of the exploitation of the natural continue the chase but is under the
resources of said areas and (b) to the seabed obligation of turning over the pirates, when
and subsoil of similar areas adjacent to the captured, to the authorities of the coastal
coasts of the islands state. Insurgents are not treated as pirates
• The coastal state has the sovereign right to since piracy is committed for private ends
explore the continental shelf and to exploit its and not political motives
natural resources and for this purpose it may 3. In the exercise of the right of visit and
erect on it such installations and equipment as search à Under the laws of neutrality, the
may be necessary. But this right shall not affect public vessels or the aircraft of a belligerent
the legal nature of the super-adjacent waters as state may visit and search any neutral
open seas or of the airspace above such waters merchant vessel on the open seas and
and their use as such by other states shall not capture it if it is found or suspected to be
be impaired or disturbed. engaged or to have engaged in activities
• The coastal state is allowed to establish on the favorable to the other belligerent
open seas immediately above the installations a 4. Under the doctrine of hot pursuit à If an
safety zone with a radius of five hundred meters offense is committed by a foreign merchant
over which it may exercise jurisdiction for the vessel within the territorial waters of the
protection of its properties underneath. coastal state, its own vessels may pursue
• The above rights are exclusive such that if the the offending vessel into the open sea and
coastal state does not explore the continental upon capture bring it back to its territory for
shelf or exploit its natural resources, no one punishment. To be lawful, the pursuit must
may undertake these activities or make a claim have started before the offending vessel
to the continental shelf without the consent of has left the territorial waters or the
the coastal state. contiguous zone of the coastal state with
respect to violation of rights enforceable
Patrimonial Sea thereon. Moreover, the pursuit must be
continuous or unabated; otherwise, it will be
• Exclusive Economic Zone (EEZ)

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deemed to have “cooled” and can no longer subject and over any personnel thereof, while in
be resumed. outer space or on a celestial body
• The state shall also be liable for any damages
Aerial Jurisdiction that these objects may cause to another state or
person
• Local state has jurisdiction over the airspace
above it to an unlimited height, or at the most up Other Territories
to where outer space begins.
• Accordingly, no foreign aircraft, civil or military, • A state may extend its jurisdiction beyond its
may pass through the aerial domain of a state territory and over territory not falling under its
without its consent. sovereignty in the following ways:
• As a result of the various agreements among 1. Through assertion of its personal
states regarding the use of their aerial domains, jurisdiction over its nationals abroad or the
the following so called “five air freedoms” exercise of its rights to punish certain
have been the subject of varying degrees of offenses committed outside its territory
recognition: against its nationals even if the offenders
1. The freedom to fly over a foreign territory are non-resident aliens.
without landing. 2. On the strength of its relations with other
2. The freedom land for non-traffic purposes states or territories, as when it establishes a
3. The freedom put down traffic originating in colonial protectorate, or administers a trust
the state of the aircraft territory occupies enemy territory in times of
4. The freedom embark traffic destined for the war.
state of the aircraft 3. As a consequence of the waiver of
5. The freedom embark traffic destined for or jurisdiction by the local state over persons
to put down traffic originating in a third state and things within its territory, illustrated by
• It is the state of registration of the aircraft that the foreign army stationed in another state
has jurisdiction over offenses and acts but remains under the jurisdiction of the
committed on board while it is in flight or over sending state.
the high seas or any other area outside the 4. Through acquisition of extraterritorial rights.
territory of any state. No other state may o Exterritoriality à refers to the
exercise jurisdiction over such aircraft except exemption of persons and property from
when: the local jurisdiction on the basis of
1. The offense has an effect on the territory of international custom. This remains a
such state respected principle of international law
2. The offense has been committed by or as illustrated by the immunities of the
against a national or permanent resident of head of state in a foreign country.
such state o Extraterritoriality à applies only to
3. The offense is against the security of such persons and is based on treaty or
state convention. It has become discredited
4. The offense consists of a breach of any because of the rise of nationalism and
rules or regulations relating to the flight or the sovereign equality of states
maneuver of aircraft in force in such state 5. Through the enjoyment of easements or
5. The exercise of jurisdiction is necessary to servitudes, such as the easement of
ensure the observance of any obligation of innocent passage or the easement of arrival
such state under a multi-lateral international under stress.
agreement.

Outer Space Chapter 12

THE RIGHT OF LEGATION
• The region beyond the earth’s atmosphere
• Not subject to jurisdiction of any state
• Includes the celestial bodies like the moon, etc. • The exercise of the right of legation is one of the
• It shall be free for exploration and use by all most effective ways of facilitating and promoting
states and is not subject to appropriation by intercourse among states.
claim of sovereignty, occupation or any other • It is the fundamental right of the state to enter
means into diplomatic relations with other states and
• But a state launching an object into outer space international persons.
shall retain jurisdiction and control over such

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• Characteristics of Legation: (1) Active right of • The immediate representative of the head of
sending diplomatic representatives and (2) state and directly under his control.
Passive right of receiving them. • Can make binding declarations on behalf of the
• Purely consensual, the maintenance of which is state on any matter falling within is authority
not a demandable right on the part of either the such as questions relating to recognition of
sending of the receiving state. states or governments and the settlement of
• Recognizing the many benefits available from international claims against the state.
contact with the family of nations, practically all • The head of the foreign office and has direction
states have availed themselves of the right. of all ambassadors and other diplomatic
representatives of his government.
Agents of Diplomatic Intercourse
Diplomatic Envoys
1. Head of state
2. Foreign secretary or minister • The regular or day-to-day conduct of
3. Members of the diplomatic service international affairs is entrusted to the members
4. Special diplomatic agents appointed by the of the foreign service who are accredited by the
head of state charged with specific ceremonial sending state as its permanent envoys to
or political duties represent it in the states with which it is
a. Envoys Ceremonial à Usually sent to maintaining diplomatic relations.
attend state functions like coronation or • Classification of the heads of diplomatic
a jubilee. missions by the Convention on Diplomatic
b. Envoys Political à Commissioned to Relations, which was signed at Vienna in 1961:
negotiate with a particular state or to 1. Ambassadors or nuncios accredited to
participate in an international heads of states
conference of congress. There is no 2. Envoys, ministers or internuncios
need for accreditation in the states accredited to heads of states
where the conference is held or 3. Charges d’affaires accredited to
necessity of existing regular diplomatic ministers for foreign affairs
relations between the state and their • Above distinction is important only in connection
own. with matters of protocol or the grant of special
honors. In other respects, the various diplomatic
Head of State agents enjoy substantially the same
prerogatives regardless of rank.
• Regarded as the embodiment of or at least
represents the sovereign of his state. Diplomatic Corps
• Being regarded as sacrosanct, he is entitled to
certain immunities and honors befitting his • A body consisting of the different diplomatic
status as follows: representatives who have been accredited to
o Right to special protection for his the same local or receiving state.
physical safety and the preservation of • Headed by a doyen du corps who, by tradition
his honor and reputation is the oldest member with the highest rank or, in
o His quarters, archives, property, and Catholic countries, the Papal Nuncio.
means of transportation are inviolable • Being a loose organization without any
under the Principle of Exterritoriality corporate character, the diplomatic corps does
o Exempt from criminal and civil not possess any legal powers or attributes.
jurisdiction, except where he is the • It is nonetheless important in watching over
plaintiff diplomatic privileges and honors and has at
o Not subject to tax or to exchange or times acted officially in the protection of the
currency restrictions rights of its members.
o Ceremonial duties are due him unless
he is travelling incognito Appointment of Envoys

Foreign Secretary or Minister • The Diplomatic Convention provides that the

class to which the heads of their missions are to
• To whom the conduct of external affairs is be assigned shall be agreed upon between the
generally entrusted except when the matter states concerned.
under consideration is of such significance or • The sending state must make certain that the
delicacy as to warrant a “summit meeting”. agrément of the receiving state has been given

24
 ACM

for the person it proposes to accredit as head of 4. Ascertaining by all lawful means conditions and
the mission to that state. developments in the receiving state and
• The receiving state is not obliged to accept any reporting thereon to the government of the
representative who is persona non grata to it. In sending state
some cases, the rejection of the accredited 5. Promoting friendly relations between the
representative resulted to strained relations sending and receiving states and developing
between the sending and receiving state. their economic, cultural and scientific relations
• To avoid such awkward situations, most states
now observe the practice of the agreation by • The diplomatic mission may also perform
means of which informal inquiries are consular functions in the absence of a consular
addressed to the receiving state regarding a mission from the sending state. on the request
proposed diplomatic representative of the or by agreement, it may also represent friendly
sending state. governments.
• It is only after the receiving state has
manifested its agrément or consent informally Conduct of Diplomatic Mission
that the diplomatic representative is appointed
and formally accredited. • In the performance of his functions, the
• Should it result to refusal, the receiving state is diplomatic agent must exercise utmost
not obliged to give its reasons for a refusal of discretion and tact, taking care always to
agrément. preserve the goodwill of the sending state and
• Under the Philippine Constitution, the to avoid interference with the internal affairs of
President’s discretion to receive ambassadors the receiving state.
and other public ministers duly accredited to the • The envoy is not justified in the following acts:
government of the Philippines is exclusive. o Pitting or aiding one political party
against another
Commencement of the Diplomatic Mission o Publicly criticizing the policies and acts
of the receiving state
• The head of the mission is considered as o Employing threatening or offensive
having taken up his functions in the receiving language or methods in the protection
state either when he has presented his of the interests of his state or its
credential or when he has notified his arrival nationals
and a true copy of his credentials has been o Using his mission for espionage or
presented to the foreign ministry of the receiving spying in the receiving state
state. o Dissemination of propaganda against
• The credentials of the diplomatic agent include: the receiving state or subversion of its
1. Letter of Credence or Lettre de Créance à government
the means by which he is accredited to the
receiving state with the request that full faith Diplomatic Immunities and Privileges
and credit be given to his official acts on
behalf of the sending state • Necessary to give the envoy the fullest freedom
2. Diplomatic Passport and latitude in the exercise of his official
3. Official Instructions functions
4. Cipher or code book à for use in sending
secret communications to his government 1. Personal Inviolability
• The reception of the envoy is not a mere o The envoy is regarded as sacrosanct
ceremony. It signifies the receiving states’ and is entitled to the special protection
agrément to his appointment and will cause the of his person, honor and liberty.
granting to the diplomatic representatives of the o The Diplomatic Convention provides:
usual privileges and immunities of his office. “The person of a diplomatic agent shall
be inviolable. He shall not be liable to
Diplomatic Functions any form of arrest or detention. The
receiving state shall treat him with due
1. Representing the sending state in the receiving respect and shall take all appropriate
state steps to prevent any attack on his
2. Protecting in the receiving state the interests of person, freedom and dignity.”
the sending state and its nationals o Exceptions:
3. Negotiating with the government of the § The envoy cannot complain if he is
receiving state injured because he himself caused

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initial aggression and thereby state may not enter them except with
provoked retaliation on the other the consent of the head of mission.”
party o The premises of the mission, their
§ The envoy unduly exposed himself furnishings and other property thereon
to danger as by mixing with a and the means of transport of the
disorderly assemblage mission shall be immune from search,
§ If he has committed an act of requisition, attachment or execution.
violence and it is necessary to o Franchise de l’hotel à immunity of the
place him in preventive restraint diplomatic premises from the local laws.
Includes the envoy’s offices, his
2. Immunity from Jurisdiction residences and out buildings, his
o A diplomatic agent shall enjoy immunity means of transportation, and the
from the criminal jurisdiction of the compound where these are found;
receiving state. these properties may not be entered by
o He shall also enjoy immunity from its the local authority without his
civil and administrative jurisdiction, permission
except in the cases of: o But this rule is not absolute as it is
§ A real action relating to private allowed, in cases of clear and urgent
immovable property situated in the necessity for the local authorities to
territory of the receiving state, take forcible measures to arrest any
unless he holds it on behalf of the person subject to their jurisdiction.
sending state for the purposes of o The so-called RIGHT OF DIPLOMATIC
the mission ASYLUM has not received universal
§ An action relating to succession in recognition except when it is extended
which the diplomatic agent is for humanitarian reasons, as when the
involved as executor, administrator, fugitive seeking sanctuary is in
heir or legatee as a private person immediate danger of his life or safety. In
and not on behalf of the sending other cases asylum is granted only on
state the strength of local usage particularly
§ An action relating to any in favor of political refugees, or of treaty
professional or commercial activity stipulations.
exercised in the receiving state
outside of his official functions 4. Inviolability of Archives
o Immunity from jurisdiction maybe o The receiving state has no right to pry
waived either: into the official papers and records of a
§ Expressly à (1) by the sending foreign diplomatic mission
state or (2) under its authority, by o The Diplomatic Convention provides:
the head of the mission “The archives and documents of the
§ Impliedly à as when the person mission shall be inviolable at any time
entitle to immunity commences and wherever they may be.”
proceedings in the local state o In case of armed conflict, the archives
thereby opening himself to any must remain sealed and may not be
counterclaim confiscated by the local state.
o Waiver of immunity from jurisdiction, for
civil or administrative proceedings, does 5. Inviolability of Communication
not carry with it the waiver of immunity o Essential to the proper discharge of the
for the execution of the judgment for envoy of his official functions.
which a separate waiver is necessary. o The Diplomatic Convention provides:
“The receiving state shall permit and
3. Inviolability of Diplomatic Premises protect free communication on the part
o It places on the receiving state a special of the mission for all official purposes.
duty to take all appropriate steps to In communicating with the government
protect the premises of the mission and other missions and consulates of
against any intrusion or damage and to the sending state, wherever situated,
prevent any disturbance of the peace of the mission may employ all appropriate
the mission or impairment of its dignity. means, including diplomatic couriers
o The Diplomatic Convention provides: and messages in code or cipher.”
“The premises of the mission shall be o Official communications are inviolable
inviolable. The agents of the receiving and the diplomatic bag containing it

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 ACM

shall not be opened or detained. This and taxes on their income from the
inviolability extends to the diplomatic mission and as such other immunities
courier of the diplomatic bag, which and privileges as maybe granted by the
entitles him to protection by the receiving state
receiving state and free from any form Duration of Applicability
of arrest and detention.
• START: Every person entitled to diplomatic
6. Exemption from Testimonial Duties privileges and immunities shall enjoy them from
o A diplomatic agent is not obliged to give the moment he enters the territory of the
evidence as a witness but he is not
receiving state on proceeding to take up his
prohibited by international law from
doing so and may waive this privilege post or, if already in the receiving state, from the
when authorized by his government. moment his appointment is notified to the
foreign ministry.
7. Exemption from Taxation • END: When his functions have come to an end,
o The diplomatic envoy is exempt from his immunities and privileges shall normally
taxes, customs duties, and other duties,
cease from the moment he leaves the country
subject to the exception as provided for
under the Diplomatic Convention; also or on expiry of a reasonable time in which to do
exempt from social security so, applies even in case of armed conflict.
requirements under certain conditions. • However, with respect to acts performed by him
o His personal baggage is also fee from in the exercise of his official functions, immunity
inspection unless there are serious shall continue indefinitely as it is supposed to
grounds for presuming that it contains
have attached to the state he represents and
articles not exempt from customs duties
or not admissible to the receiving state. not to him personally.
• These privileges and immunities are available to
8. Other Privileges him and to his family not only in situ but also in
o Freedom of travel and movement in the transitu, that is when travelling through a third
receiving state’s territory subject to its state on the way to or from the receiving state
laws and regulations so far as maybe necessary to secure his transit
o Exemption from all personal services,
or return.
from all public services of any kind, and
from military obligation
Termination of Diplomatic Mission
o The right to use the flag and emblem of
the sending state on the premises of
the mission, including the residence of Municipal Laws International Law
the head of the mission, and on his Recall à demanded by
means of transport the receiving state when
Death
the foreign diplomat
The Diplomatic Suite or Retinue becomes persona non
grata to it for any reason
• To whom are the immunities and privileges Dismissal à by means
applicable? Resignation of which the offending
diplomat is simply asked
1. Head of the mission and his family members to leave the country
2. Other members of the diplomatic retinue, Outbreak of war
although not in the same degree with the head between the sending
of the mission, which consists of the following: and receiving states,
a. Diplomatic staff Removal diplomatic relation is
b. Administrative and technical staff à usually severed even
enjoys the same rights as the before the actual
diplomatic staff except that immunity commencement of
from civil and administrative jurisdiction hostilities
shall not extend to unofficial acts Extinction of either
Abolition of office
c. Service staff à if not nationals or state
permanent residents of the receiving Maybe suspended when
state, enjoys only exemption from dues there is a change of
government by means

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of violence and the new o Vice-consul

government has not yet o Consular agent
been recognized by the
receiving state. Does not Appointment
apply if the change is by
peaceful means • Consuls derive their authority from two principal
sources
o Letter patent or lettré de provision à
Chapter 13 the commission issued by the sending
CONSULS state
o Exequator à the authority given by the
receiving state allowing them to
exercise their duties therein
• Consuls are state agents residing abroad for
various reasons but mainly in the interests of Functions
commerce and navigation.
• Unlike diplomatic agents, they are not charged • Duties pertaining to commerce and navigation
with the duty of representing their states in o To promote the commercial interests of
political matters nor are they accredited to the their country in the receiving state
state where they are supposed to discharge o To observe the commercial trends and
their functions. developments therein for report to their
• Consuls do not ordinarily enjoy all the traditional home government
diplomatic immunities and privileges; but, to a o Visit, inspect and supervise vessels of
certain extent, are entitled to special treatment their own states which maybe in the
under the law of nations. consular district
• Consuls are public officers not only of the o Visit and inspect foreign vessels
sending state but of the receiving state as well destined for a port of the sending state
and are governed by both laws.
• As in the case of diplomats, states may refuse • Duties respecting the issuance of passports
to receive consuls and to withhold the and visas
exequatur from them without explanation o To issue passports to nationals of the
• Consent of the establishment of diplomatic sending state
relations between two states implies the o To visa passports and to issue
establishment of consular relations, unless documents relating to entry into and
otherwise stated. However, severance of travel within the territory of the sending
diplomatic relations shall not ipso facto result to state
the severance of the consular relations and vice o To visa invoices and certificates of
versa. origin of goods destined for the territory
of that state
Kinds and Grades
• Duties of protection of nationals - To look
a. Kinds after the interests of fellow nationals and to
1. Consules Missi – professional or career extend to them official assistance whenever
consuls who are nationals of the appointing needed
state and are required to devote their full o Authenticate documents
time to the discharge of their consular o Solemnize marriages
duties o Register births and deaths
2. Consules Electi – may or may not be o Temporarily administer the estates of
nationals of the appointing state and deceased nationals within the consular
performs their functions only in addition to district
their regular callings o Advise and adjust differences between
their fellow nationals
o Visit them when they are arrested or
detained by the receiving state
b. Grades or Ranks o Assist them in proceedings before or in
Heads of the consular posts are classified relation with the local authorities
according to importance:
o Consul General
o Consul

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o Inquire into any incidents which have 6. Consuls are privileged to display their national
occurred within the consular district flag and insignia in the consulate.
affecting the interests of such nationals
Termination of Consular Mission
Immunities and Privileges
• Removal
• These immunities and privileges are available to • Resignation
the consul and members of the consular posts, • Death
their respective families and the private staffs. • Expiration of the term
• Waiver may in general be made by the sending • Withdrawal of the exequatur by the receiving
state. state
• With respect to acts in the exercise of his • When war break out between the two states. In
functions, immunity from jurisdiction will subsist the event of war, the consulate is closed and
without limitation as to time. the archives are sealed and left in the custody
of a caretaker who is usually a consul from a
1. Consuls have a right to official neutral state and the consul is allowed to depart
communication and may correspond with their for his own country ASAP w/out unnecessary
home government or other official bodies by any molestation
means including cipher or code, without being • Severance of consular relations does not
subjected to censorship or unreasonable necessarily terminate diplomatic relations and
restraint. However, this right maybe curtailed or vice versa
restricted whenever it is exercised to the
prejudice of the receiving state.
Chapter 14
2. Consuls enjoy inviolability of their archives,
TREATIES
which may not be examined or seized by the
receiving state under any circumstances, nor
may their production or testimony concerning
them be compelled in official proceedings. But • TREATY à a formal agreement, usually but not
this immunity does not extend to the consular necessarily in writing, entered into by states or
premises themselves, where legal processes entities possessing treaty-making capacity for
maybe served and arrests made without the purpose of regulating their mutual relations
violation of international law; consular offices under the law of nations
maybe expropriated for purposes of national • An executive agreement under municipal law is
defense or public utility. not a treaty insofar as the concurrence thereto
of the Senate is not required under our
3. Respecting criminal offenses, the rule is that Constitution. However, from the viewpoint of
consuls are exempt from local jurisdiction for international law, they are alike in that both
crimes committed in the discharge of their constitute equally binding obligations upon the
official functions. But with regards to other nation.
offenses, they are fully subject to the local law
for other offenses and may be arrested, Functions of Treaties
prosecuted and punished in proper
proceedings; for reasons of comity, are not 1. Enable parties to settle finally actual and
prosecuted for minor offenses and are given potential conflicts
adequate opportunity to secure their release on 2. Make it possible for the parties to modify the
bail at the soonest time upon arrest. rules of international customary law by means
of optional principles or standards
4. Civil suits maybe instituted against consuls 3. May lead to a transformation of unorganized
in their private or personal capacity but not international society into one which maybe
in matters connected with their official organized on any chosen level of social
duties. integration
4. Provide the humus for the growth of
5. Consuls are also generally exempted from international customary law
taxation, customs duties, service in the Essential Requisites of a Valid Treaty
militia and social security rules.
a. Entered into by parties with treaty-making
capacity
b. Through their authorized representatives

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c. Without the attendance of duress, fraud,

Negotiation
mistake, or other vice of consent
d. On any lawful subject-matter
e. In accordance with their respective
constitutional processes Signature

a. Treaty-making capacity
o All states have full treaty-making capacity Ratification
unless limited by reason of their status or by
previous self-imposed inhibitions.
o However, there are instances, when even Exchange of the Instrument of
mere colonies have been allowed to sign Ratification
treaties or join international conferences as
full-fledged members along with sovereign 1. Negotiation
states. o May be undertaken directly by the head of
o Organizations granted with international state but is usually assigned to his
personality may also enter into treaties, like authorized representatives, who are
UN and its organs, WHO, etc. provided with credential known as full
powers, which they exhibit to the other
b. Authorized representatives negotiators at the start of the formal
o It is for municipal law to determine which discussions.
organ of the state shall be empowered to o It is standard practice for one of the parties
enter into treaties in its behalf. to submit a draft of the proposed treaty,
o General practice is to assign the treaty- which together with the counter-proposals,
making power to the executive department becomes the basis of subsequent
subject to the consent of the legislature or negotiations.
one of its branches. In the case of o The negotiations may be brief or protracted,
Philippines, it is vested with the President depending on the issues involved, and may
subject to the concurrence of two-thirds of even collapse in case the parties are unable
all members of the Senate. to come to an agreement on the points
under consideration.
c. Freedom of consent
o Fraud or mistake will invalidate a treaty as it 2. Signature
would an ordinary contract. o Done after the negotiators have finally
decided on the terms of the treaty; intended
d. Lawful subject-matter as a means of authenticating the instrument
o A treaty with unlawful purpose would be null for the purpose of symbolizing the good
and void faith of the parties
o Does not indicate the final consent of the
e. Compliance with constitutional processes state in cases where ratification of the treaty
o The treaty making process is governed by is required
international law but the method of o The document is signed usually in
ratification is governed by the municipal accordance with the alternat, i.e., each of
laws. the several negotiators is allowed to sign
o Non-compliance will prevent enforcement of first on the copy which he will bring home to
the treaty even if already signed by the his home state.
authorized negotiators.
3. Ratification
o The formal act by which a state confirms
and accepts the provisions of a treaty
concluded by its representatives.
o The purpose is to enable the contracting
states to examine the treaty more closely
Treaty-Making Process and to give them an opportunity to refuse to
be bound by it should they find it inimical to
their interests.
o For this reason that most treaties are made
subject to the scrutiny and consent of a

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department of the government other than o Non-parties are usually not bound under the
what which negotiated them. maxim pacta tertiis nec nocent nec prosunt
o In the absence of a stipulation to the (Treaties do not create either obligations or
contrary and more so if ratification is rights for third states without their consent.)
expressly required, an un-ratified treaty o Instances when third states maybe validly held
cannot be a source of obligations between to the observance of the treaty:
the parties. 1. When the treaty is merely a formal
o In case of refusal to ratify, it should be expression of customary international law
based on substantial grounds and not on which is enforceable on all civilized states
superficial or whimsical reasons; otherwise, by virtue of their membership in the family
the other state would be justified in taking of nations
an offense. At times, to avoid total rejection 2. Observance of the non-members of the UN
of a treaty, the ratification is qualified or of the principles of the Charter as maybe
made conditional (with reservations). necessary for the maintenance of
o It should be emphasized that under our international peace and security – Article 2
Constitution, the power to ratify is vested in of the U.N. Charter
the President, subject to the concurrence of 3. Where the treaty expressly extends its
the Senate. The role of the Senate, benefits to non-signatory states
however, is limited only to giving or 4. By virtue of the most-favored-nation
withholding its consent, or concurrence, to clause. A pledge by a contracting party to a
the ratification. Hence, it is within the treaty to grant to the other party treatment
authority of the President to refuse to not less favorable than that which has been
submit a treaty to the Senate or, having or may be granted to the “most favored”
secured its consent for ratification, refuse to among other countries. The clause has
ratify it. But as a rule, the President cannot been commonly included in treaties of
ratify a treaty without the concurrence of commercial nature.
two-thirds of all members of the Senate.
o Although the refusal of a state to ratify a Observance of Treaties
treaty which has been signed in its behalf is
a serious step that should not be taken • PACTA SUNT SERVANDA à requires the
lightly, such decision is within the performance in good faith of treaty obligations
competence of the President alone, which • Despite supervening hardships such as conflicts
cannot be encroached by this Court via a with the municipal law or prejudice to the
writ of mandamus. national interest, the parties must comply with
their commitments under a treaty and cannot
4. Exchange of Instruments of Ratification ignore or modify its provisions without the
o The last step, which usually signifies the consent of the other signatories
effectivity of the treaty unless a different • When a treaty conflicts with the constitution of
date has been agreed upon by the parties. one of the parties, the treaty is nevertheless
When ratification is dispensed with and no internationally binding although unenforceable
effectivity clause is embodied in the treaty, under municipal law. The reason is that
the instrument is deemed effective upon its “peculiarities of constitutional structure are
signature. without international significance to other states.
o Submitted for registration and publication • In this case, the state called upon to perform its
under the UN Charter – not essential to the obligations may:
validity of the agreement as between the 1. Ask for a revision of the treaty
parties but is necessary for the treaty to be 2. Amend its constitution to make it
allowed to be invoked before any UN organ. conform to the treaty requirement
3. Pay damages to the other parties for its
Binding Effect of Treaties inability to comply with its requirements
• But despite the general requirement of strict
o General Rule: A treaty is binding only on the enforcement of treaties, states have on
contracting parties, including not only the occasion invoked the doctrine of rebus sic
original signatories but also other states which, stantibus, which is descried as an equivalent
although have not participated in the negotiation exception to the maxim of pacta sunt servanda.
of the agreement; have been allowed by its • REBUS SIC STANTIBUS à constitutes an
terms to sign it later by a process known as attempt to formulate a legal principle which
ACCESSION. would justify non-performance of a treaty

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obligation if the conditions with relation to which o Statements recorded at the time of the
the parties contracted have changed negotiations
substantially and unexpectedly creating a o Preliminary materials used
situation in which the exaction of performance • In case of conflict in treaty interpretations,
would be unreasonable resolution is attained only by:
o REQUISITES: o Agreement of the parties themselves
1. The changed condition constitutes o An international body
an essential basis of the consent of • Decisions of the national courts of the
the contracting parties contracting parties are received with respect but
2. The change transforms in an not as authority.
essential respect the character of
the obligations undertaken in the Termination of Treaties
treaty
o LIMITATIONS: 1. By expiration of the term, which maybe fixed or
1. Applies only to treaties of indefinite subject to a resolutory condition
duration 2. By accomplishment of the purpose
2. The vital change must have been 3. By impossibility of performance
unforeseen or unforeseeable and 4. By loss of the subject matter
should not have been caused by 5. By desistance of the parties, through express
the party invoking the doctrine mutual consent; desuetude or the exercise of
3. The doctrine must be invoked within the right of denunciation/withdrawal when
a reasonable time allowed
4. Cannot operate retroactively upon 6. By novation
the provisions of the treaty already 7. By extinction of one of the parties if the treaty is
executed prior to the change in bipartite
circumstances 8. By vital change of circumstances under the
doctrine of rebus sic stantibus
Treaty Interpretation 9. By outbreak of war between the parties in most
cases, save specifically when the treaty was
• The basic rule in the interpretation of treaties is intended to regulate the conduct of the
to give effect to the intention of the parties, signatories during the hostilities, or to cede
which should be discoverable in the terms of the territory, or to fix boundaries.
treaty itself. o “The provisions of the treaty which is
• The usual canons of statutory construction compatible with a state hostilities, unless
are employed in the interpretation of treaties. expressly terminated, will be enforced while
o Specific provisions must be read in light those incompatible shall be rejected” –
of the whole instrument and of the Techt v. Hudges
purposes of the treaty 10. By voidance of the treaty because of defects in
o Words used are to be given their its conclusion, violation of its provision by one of
natural meaning unless a technical the parties, or incompatibility with international
sense was intended, and, when they law or the UN Charter
have different meanings in the
contracting states, it should be
interpreted in accordance with the Chapter 15
usage of the state where they are NATIONALITY AND STATELESSNESS
supposed to take effect
o Doubts should be resolved against the
imposition of obligations and in favor of
• Ordinarily, the individual can participate in
the freedom and sovereignty of the
international relations only through the
contracting parties
instrumentality of the state to which he belongs.
o At all events, an interpretation that will
This remedy is generally not available to him if
lead to an absurdity is to be avoided
he is stateless for there would be no entity with
and a more rational result preferred.
international personality to intercede for him for
• Where intrinsic aids are unavailing, resort may
the protection or vindication of his rights under
be made to extrinsic aids.
the law of nations.
o Circumstances leading to the
• NATIONALITY à The tie that binds an
conclusion of the treaty
individual to his state, from which he can claim
protection and whose laws he is obliged to obey.

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It is membership in the political community with • The possession by an individual of more than
all its concomitant rights and obligations. one nationality because the concurrent
• CITIZENSHIP à More exclusive in scope than application to him of the conflicting municipal
nationality in that it applies only to certain laws of two or more states claiming him as their
members of the state accorded more privileges national.
than the rest of the people who also owe it • DOCTRINE OF INDELIBLE ALLEGIANCE à
allegiance, i.e. during the American regime in An individual may be compelled to retain his
the Philippines, Filipinos and Americans were original nationality notwithstanding that he has
considered nationals of the United States vis-à- already renounced it under the laws of another
vis other states but Filipinos were not entitled to state whose nationality he has acquired.
the same rights as the American citizens such Example: A woman who upon marriage to a
for purposes of the administration of the internal foreigner continues to be a national of her own
affairs of the parent state (right to vote). state under its laws while also acquiring her
• SUBJECT à Has particular reference to the husband’s nationality in accordance with the
nationals of the monarchial regimes, i.e. British laws of his state.
subject, who may be a citizen of the United
Kingdom. Loss of Nationality

Acquisition of Nationality • Nationality may be lost voluntarily or

involuntarily.
• Nationality may be acquired by birth or by
naturalization. A. Voluntarily
1. Renunciation à either express or implied
A. By Birth 2. Request for release à usually precede the
1. Jure soli à nationality of the state where he acquisition of a new nationality
is born
2. Jure sanguinis à nationality of his parents B. Involuntarily
1. Forfeiture à as a result of some
B. By Naturalization à a process by which a disqualification or prohibited act, such as
foreigner acquires, voluntarily or by operation of enlistment in foreign army or long continued
law, the nationality of another state residence in a foreign state
1. Direct Naturalization à effected through: 2. Substitution of one nationality for another à
a. individual proceedings, usually judicial, following a change of sovereignty or any act
under general naturalization laws conferring derivative naturalization
b. special act of the legislature, often in
favor of distinguished foreigners who Conflict of Nationality Laws
have rendered some notable service to
the local state • Purpose is to provide against conflicts arising
c. collective change of nationality from differing municipal laws on nationality.
(naturalization en masse) as a result of
cession or subjugation Hague Conventions of 1930 on the Conflict of
d. in some cases, by adoption of orphan Nationality Laws
minors as nationals of the state where
they are born Article 1. It is for each state to determine under its law
2. Derivative Naturalization à does not always who are its nationals. This law shall be recognized by
follow as a matter of course as it is usually other States insofar as it is consistent with international
conventions, international customs, and the principles of
made subject to stringent restrictions and law generally recognized with regard to nationality.
conditions; conferred:
a. on the wife of the naturalized husband Article 2. Any question as to whether a person possesses
b. on the minor children of the naturalized the nationality of a particular State shall be determined in
parents accordance with the law of the State.
c. on the alien woman upon marriage to a
national Article 3. Subject to the provisions of the present
Convention, a person having two or more nationalities
may be regarded as its national by each of the States
whose nationality he possesses.
Multiple Nationality

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Article 4. A state may not afford diplomatic protection to the husband’s new nationality, if
one of its nationals against a State whose nationality such permitted, only with her consent
person also possesses o Adopted child’s nationality is lost
only after acquiring the adopter’s
Article 5. Within a third State, a person having more than nationality
one nationality shall be treated as if he had only one.
o Children shall have the nationality
Without prejudice to the application of its law in matters of
personal status and of any convention in force, a third of their birth whenever their parents
State shall, of the nationalities which any such person are: (a) unknown, (b) stateless or of
possesses, recognize exclusively in its territory either the unknown nationality, (c) a father
nationality of the country in which he is habitually and who is stateless or of unknown
principally resident or the nationality of the country with nationality and a mother who is a
which in the circumstances he appears to be in fact most national of the state where they are
closely connected. (Principle of Effective or Active born.
Nationality)

Article 6. Without prejudice to the liberty of a State to

accord wider rights to renounce its nationality, a person Chapter 16
possessing two nationalities acquired without any TREATMENT OF ALIENS
voluntary act on his part may renounce one of them with
the authorization of the State whose nationality he desires
to surrender. This authorization may not be refused in the
case of a person who has his habitual and principal • Every state has the right to determine under
residence abroad, if the condition laid down in the law of what conditions foreigners maybe admitted to
the State whose nationality he desires to surrender are its territory. Once it decides to accept them,
satisfied. however, it has the duty to treat them justly in
accordance with the law of nations. If this duty
Statelessness is not observed, the alien and his state would
have a valid cause for complaint.
• The condition or status of an individual who is • However, the foreigner must accept the
born without any nationality or who loses his institutions of the local state as he finds them.
nationality without retaining or acquiring another. He cannot, as a rule, claim a preferred position
• A stateless person is to be treated more or less vis-à-vis the national of the state where he is at
like the subjects of a foreign state. Any wrong best only a guest.
suffered by him through the act or omission of a
state would be damnum absque injuria for in Right of the State to admit and expel aliens
theory, no state has been offended and no
international delict committed. • No state is under obligation to admit aliens
• Under the Covenant Relating to the Status of • State imposes conditions on the admission of
Stateless Persons adopted in 1954, a stateless aliens
person is entitled to, among others, the right to • State can expel aliens from its territory à
religion and religious instruction, access to deportation/re-conduction
courts, elementary education, public relief and • Alien must accept the institutions of the State as
assistance, rationing of products in short supply he finds them
and treatment of no less favorable than that • Aliens may be deprived of certain rights
accorded aliens in general. • Local law may grant aliens certain rights,
• Rules calculated to avoid conditions of privileges based on:
statelessness and all its attendant o Reciprocity
inconveniences, as embodied in the Hague o Most-favored-nation treatment
Conventions of 1930: o National treatment
o Loss of nationality by an individual • Privileges conferred may be revoked
upon his retention of acquisition of
another nationality, whether such Doctrine of State Responsibility
loss be by expatriation,
naturalization as to the wife and • A state may be held responsible for an
minor children, or adoption. international delinquency directly or indirectly
o In case of naturalization, the wife imputable to it, which causes injury to the
and children retain their existing national of another state.
nationality if they are not also • Liability will attach to the state where its
naturalized. The wife will acquire treatment of the alien falls below the

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international standard of justice or where it is Exhaustion of Local Remedies

remiss in according him the protection or
redress that is warranted by the circumstances. • Assuming the state is liable for international
• Its function is to assure the traveller that when delinquency, the foreigner cannot claim its
its rights are violated in a foreign state, he will enforcement unless he first exhausts all
not be denied any remedy simply because he is available local remedies for the protection or
not one of its nationals. vindication of his rights.
• This requirement may be dispensed with in the
International Standard of Justice following cases:
o There are no remedies to exhaust, i.e.
• The standard of the reasonable state, that is, as laws are intrinsically defective, there are
referring to the ordinary norms of official laxity or arbitrariness in its enforcement
conduct observed in civilized jurisdictions. or where the courts are corrupt
• To constitute an international delinquency, the o For “acts of state”, which are not
treatment of an alien should amount to an subject to judicial review
outrage, bad faith, willful neglect of duty, and
insufficiency of governmental action that every Resort to Diplomatic Protection à If the injured
reasonable and impartial man would readily foreigner has exhausted all local remedies but
recognize its insufficiency. without success, he may then avail himself of the
• Where the laws of the state fall below the assistance of his state – but only if he has a state.
international standard of justice, it is no defense With exception to the United Nations who may file
that they are applicable not only to the aliens diplomatic claim on behalf of its officials.
but equally to its nationals. The relations of that
state with its own nationals are purely Enforcement of Claim
municipal; international law is involved in its
relations with the nationals of other states. This • An international claim for damages may be
is the view more generally favored as against resolved through negotiation or, if it fails, any
the so-called doctrine of equality of treatment. other methods of settling disputes, like good
offices, arbitration, judicial settlement, or hostile
Failure of Protection or Redress and forcible measures like war.
• Once the responsibility of the state is
• Even if its laws conform to the international established, the duty to make reparation will
standard of justice, the state may still be held arise. Such reparation may take the form of
liable if (a) it does not make reasonable efforts through restitution, satisfaction, compensation,
to prevent the injury to the alien or (b) fails to all these three together.
repair the injury after an unsuccessful effort to
prevent the same. Avoidance of State Responsibility
• However, liability does not immediately attach to
the state; distinction is made between direct and • The doctrine of state responsibility is applied
indirect state responsibility. more frequently to tortious or wrongful conduct
o Direct State Responsibility à where rather than contractual liability because of the
the international delinquency was unwillingness of states to act as “collection
committed by superior government agencies” of its nationals entering into private
officials or organs, like the chief of state agreements with or in foreign countries.
or the national legislature, liability will • To avoid intervention of the alien’s state in
attach immediately as their acts may contracts of this nature, the local state
not be effectively prevented or reversed sometimes incorporates the Calvo Clause.
under the constitution and laws of the • CALVO CLAUSE à stipulation by which the
state alien waives or restricts his right to appeal to his
o Indirect State Responsibility à where own state in connection with any claim arising
the offense is committed by inferior from the contract and agrees to limit himself to
government officials or by private the remedies available under the laws of the
individuals, the state will be held liable local state.
only if, by reason of its indifference in o Such waiver can only be made, legally,
preventing or punishing it, it can be by the alien’s state. Hence, it may not
considered to have connived in be interpreted to deprive the alien’s
effecting its commission. state of the right to protect or vindicate

35
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his interests in case they are injured in committed before his escape, the state of
another state. refuge and not the accused, has the right to
object; nevertheless, the prosecution will be
Exclusion of Aliens allowed if the extraditing state agrees or does
not complain
• The practice of most states, is to regulate the
immigration and stay of aliens and to provide for 3. Any person may be extradited, whether he be a
their deportation or extradition whenever national of the requesting state, of the state of
warranted refuge or of another state
• Deportation à the removal of an alien out of
the country, simply because his presence is 4. Political and religious offenders are generally
deemed inconsistent with the public welfare, not subject to extradition
and without any punishment being imposed or o An offense of political character exist when
contemplated, either under the laws of the there are two or more parties in the state,
country out of which he is sent or under those of each seeking to impose the government of
the country to which he is taken their own choice on the other
• Exclusion à denial of entry to an alien o Attentat clause à Murder of the head of
state or any member of his family is not a
Extradition political offense
o Crime of genocide committed with intent to
• Extradition à the surrender of a person by one destroy a national, ethnical, racial or
state to another state where he is wanted for religious group is not a political offense
prosecution or, if already convicted, for
punishment 5. In the absence of special agreement, the
offense must have been committed within the
Extradition Deportation territory or against the interests of the
Effected at the request Unilateral act of the local demanding state
of the state of origin state
Based on the offenses 6. The act for which the extradition is sought must
Based on causes arising be punishable in both the requesting and
generally committed in
in the local state requested states under what is known as the
the state of origin
Calls for the return of the May be deported to a rule of double criminality
fugitive to the state of state other than his own
origin or the state of origin Procedure of Extradition

1. A request for extradition is presented through

Basis of Extradition
diplomatic channels to the state of refuge. This
request will be accompanied by the necessary
• Extradition of a person is required only if there
papers relative to the identity of the wanted
is there is a treaty between the state of refuge
person and the crime he is alleged to have
and the state of origin.in the absence of such,
committed or of which he has already been
the local state has every right to grant asylum to
convicted.
the fugitive and to refuse to deliver him back to
the latter state even if he is its national.
2. Upon receipt of the request, the state of refuge
• However, in pursuance of policy or as a gesture will conduct a judicial investigation to ascertain
of comity, the surrender requested may still be if the crime is covered by the extradition treaty
effected notwithstanding the absence of a treaty. and if there is prima facie case against the
fugitive according to its own laws.
Fundamental Principles of Extradition
3. If there is, a warrant of surrender will be drawn
1. Extradition is based on the consent of the state
and the fugitive will be delivered to the state of
of asylum as expressed in a treaty or
origin.
manifested as an act of goodwill

2. Under the principle of specialty, a fugitive who is

extradited may be tried only for the crime
specified in the request for extradition and
included in the list of offenses in the extradition
treaty. If he is charged with any other offense

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6. Arbitration
Chapter 17 7. Judicial Settlement
SETTLEMENT OF INTERNATIONAL DISPUTES 8. Resort to regional and international
organizations

• Negotiation à is generally the first step taken

• A DISPUTE exists when one state claims that
another state should behave in a certain in the settlement of international dispute.
Discussion undertaken by the parties
manner and that claim is rejected by the latter
themselves of their respective claims and
• INTERNATIONAL DISPUTE à An actual
counterclaims with a view to their just and
disagreement between states regarding the
orderly adjustment. If talks prosper and
conduct to be taken by one of them for the
agreement is reached, it is usually formalized to
protection or vindication of the interests of the
a treaty or effected through the rectification of
other
the injury caused to the claimant state.
• SITUATION à The initial stage of a dispute. A
situation exists when the disagreement has not
• Inquiry à is an investigation of the points in
yet ripened into a full-blown conflict or the
question by an impartial and conscientious body
issues have not yet been sufficiently formulated
on the theory that their elucidation will
and defined.
contribute to the solution of the differences
• LEGAL DISPUTE à Involves justiciable rights
between the parties. The findings of the body
based on law or fact susceptible of adjudication
are not conclusive upon the disputing states but
by a judicial or arbitral tribunal
may exert strong moral influence in the
o Examples: Conflict in the interpretation
settlement of the conflict.
of a treaty; ascertainment of the
boundaries of adjacent states
• Good Offices à is a method by which a third
• POLITICAL DISPUTE à Cannot be decided by
party attempts to bring the disputing states
legal processes on the basis of the substantive
together in order to enable them to discuss the
rules of international law because the
issues in contention and arrive at an agreement.
differences of the parties spring from
This is usually employed when the parties are
animosities in their mutual attitudes rather than
no longer on speaking terms, i.e. when they
from an antagonism of legal rights
have severed diplomatic relations or have
o Examples: Enactment of immigration
actually commenced hostilities.
laws discriminating against the
nationals of another state over the
• Mediation à is a more active involvement than
latter’s protests
good offices. The third party does not merely
provide the opportunity for the antagonists to
Methods of Settling Disputes
negotiate but also actively participates in their
discussions in order to reconcile their conflicting
• Disputes are required to be settled via peaceful
claims and appease their feelings of resentment.
means in such a manner that international
However, the mediator's suggestions are
peace, security and justice are not endangered
merely persuasive and maybe rejected without
in conformity to the basic principles of United
offense to the disputing parties.
Nations.
• Unlike municipal law, international law has not
• Conciliation à calls for the active participation
yet been able to provide for adequate
of a third party in the attempt of the disputants
machinery for the peaceful settlement of
to settle their conflict and the recommendations
disagreements among states by compulsory
made by it are likewise not binding. But unlike in
processes binding on the contending parties. As
mediation, the services of the conciliator are not
consequence, states have on many occasions
offered by the third party but solicited by the
found it necessary to settle their disputes by
disputing parties.
themselves without regard to higher authority.
• Arbitration à is the solution of a dispute by an
Amicable Methods
impartial third party, usually a tribunal created
by the parties themselves under a charter
1. Negotiation
known as the compromis. The compromis
2. Inquiry
provides for the (1) composition of the body and
3. Good Offices
the manner of the selection of its members, (2)
4. Mediation
its rules of proceedings, (3) the law to be
5. Conciliation

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applied by it and (4) the issues of fact or law to • Options to the other party, if any party fails to
be resolved. Unlike in conciliation, the perform the obligations rendered in the
proceedings are essentially judicial and the judgment:
award is, by previous agreement, binding on the o Recourse to the Security Council which
parties to the dispute may decide upon measures to enforce
the judgment
• Judicial Settlement à The Judicial Settlement o announcement of the compliance and
of disputes is now entrusted to the International appeal to world opinion to persuade the
Court of Justice whose jurisdiction is not losing litigant to abide by the decision
compulsory but dependent on the agreement of
the parties to submit to and be bound by its • Resort to regional and international
decisions whose consent maybe manifested organizations à may be resorted to by the
through: (a) a treaty containing "compromissary parties on their own volition or taken by the
clause" empowering the Court to settle disputes body itself at its own instance if allowed by
arising from its interpretation or application or agreement of the members.
(b) the "optional jurisdiction clause" in Article 36
of the Rome Statute. Hostile Methods

ARTICLE 36 1. Retorsions
2. Reprisals
1. The jurisdiction of the Court comprises all cases which 3. Intervention
the parties refer to it and all matters specially provided for
in the Charter of the United Nations or in treaties and
• Retorsions à any action taken in retaliation
conventions in force.
where the acts complained of do not constitute
2. The states parties to the present Statute may at any a legal ground of offense but are rather in the
time declare that they recognize as compulsory ipso facto nature of unfriendly acts but indirectly hurtful to
and without special agreement, in relation to any other other states
state accepting the same obligation, the jurisdiction of the o Severance of diplomatic or consular
Court in all legal disputes concerning: relations
o Suspension of commercial intercourse
a. the interpretation of a treaty; o Boycott
o Stoppage of travel to the other state
b. any question of international law;
o Denunciation of treaties
c. the existence of any fact which, if established, o Imposition of higher tariffs and other
would constitute a breach of an international trade barriers
obligation; o Currency restrictions
o Denial of loans
d. the nature or extent of the reparation to be o Withdrawal of privileges previously
made for the breach of an international enjoyed
obligation. o Recognition of a rival government
o Adverse propaganda
• Judicial settlement is similar to arbitration as to
the (a) nature of the proceedings, (b) binding • Reprisals à An act of self-help on the part of
character of the decisions and (c) to the fact the injured state, responding after an unsatisfied
that the disputes submitted for adjudication are demand to an act contrary to international law
legal rather than political on the part of the offending state. Reprisals
become unlawful when: (1) there is no previous
Judicial Tribunal Arbitral Tribunal act contrary to international law to justify the
Judicial tribunal is a pre- Arbitral tribunal is an reprisal or (2) lack of sufficient occasion, of
existing and permanent adhoc body created by previous demand and of admissible proportion
body the disputing parties between the alleged offense and the reprisals
Jurisdiction is usually Submission to arbitration taken. They aim to impose on the offending
compulsory is voluntary state reparation for the offense or the return to
Laws applied by judicial Laws applied maybe legality in avoidance of new offenses.
tribunal is independent limited by the will of the o Display of force
of the will of the parties parties o Occupation of territory
o Embargo or the detention by the
offended state of the vessels of the

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offending state or its nationals, whether Council is empowered to take more drastic
such vessels are found in the territory of steps.
the former or on the high seas o Preventive Action à initially suggest
o Pacific blockade, by which the vessels such measures not involving the use of
of the offending state are prevented armed force, such as: (a) complete or
from entering or leaving its ports by the partial interruption of economic relations
ships of the state seeking redress and of rail, sea air, postal, telegraphic,
radio and other means of
• Intervention à an act by which a state communication, and (b) severance of
interferes with the domestic and foreign affairs diplomatic relations
of another state or states through the o Enforcement Action à if preventive
employment of force or threat of force which action is inadequate, may take actions
maybe physical, political or economic. Lacking by air, sea or land forces such as (a)
such pressure, the involvement of a state in the demonstrations, (b) blockades, (c) other
affairs of another, even if unsolicited, cannot be operations by air, sea, or land forces of
considered intervention. members of the United Nations. UN
members are required to hold
The United Nations immediately available national air-force
contingents for combined international
• If the amicable or hostile methods of settling enforcement action.
dispute didn’t work or are not employed, the • MILITARY STAFF COMMITTEE à consists of
United Nations may be asked or may decide on the chiefs of staff of the permanent members of
its own authority to take a hand in its settlement. the Security Council or their representatives. Its
• SECURITY COUNCIL à principally responsible functions includes:
for settling dispute and has JURISDICTION o To advise and assist the Security
over: Council on (a) all questions relating to
o All disputes affecting international its military requirements for the
peace and security maintenance of international peace and
o All disputes which, although coming security, (b) employment and command
under the “domestic jurisdiction clause,” of forces placed at its disposal, (c)
have been submitted to it by the parties regulation of armaments and (d)
for settlement possible disarmament.
• WHO MAY BRING THE DISPUTE TO o Responsible for the strategic direction
SECURITY COUNCIL? of any armed forces placed under the
o Security Council, in its own motion disposal of the Security Council
o General Assembly • GENERAL ASSEMBLY àTasked with settling
o Secretary-General the dispute if the Security Council, because of
o Any Member of the United Nations lack of unanimity of the permanent members,
o Any party to the dispute; in case of non- fails to exercise its primary responsibility for the
members of the UN, they should accept maintenance of peace and security
in advance the obligations of pacific o Shall consider the matter immediately
settlement under the Charter with a view to making recommendations
• HOW DOES SECURITY COUNCIL SETTLE to the members for collective measures,
THE DISPUTE? the use of armed forces when
o Call on the parties to settle the dispute necessary, to maintain or restore
through any peaceful means international peace and security
o If unable to comply, recommends o If not in session, may meet in
appropriate measures or methods of emergency special session within
adjustment taking into consideration (a) twenty-four hours at the request of any
any amicable measures already nine members of the Security Council
adopted and (b) that legal disputes or by a majority of the members of the
should as a rule be referred to the United Nations.
International Court of Justice.
o If still unavailing, recommends actual
terms of compulsory settlement which
the parties are under obligation to abide
• If the suggested terms of settlement are
rejected by any of the parties, the Security

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to the treatment of the wounded in land

Chapter 18 warfare; the rights and duties of neutrals in
WAR land warfare; the rights and duties of
neutrals in land warfare; and the rights and
duties of neutrals in naval warfare
4. The Geneva Convention of 1925,
• There is no unanimity among writers on
concerning the use of asphyxiating,
international law as to the meaning or concept
poisonous and other gases and of
of war, some saying it is a specific action while
bacteriological methods of warfare
others asset it is merely a specific status.
5. The Geneva Convention of 1929,
o WAR AS A SPECIFIC ACTION à war
concerning the treatment of the sick and
may be defined as an armed contention
wounded and of prisoners of war
between the public forces of states or
6. The Declaration of London of 1936,
other belligerent communities, implying
concerning the use of submarines against
the employment of violence among the
merchant vessels
parties as a means of enforcing their
7. The Geneva Convention of 1949,
respective demands upon each other.
concerning the amelioration of the sick and
o WAR AS A SPECIFIC STATUS à war
wounded on land; the amelioration of the
may exist even without the use of force,
sick and wounded and of shipwrecked
as when one state formally refuses to
members of the armed forces at sea; the
be governed by the laws of peace in its
treatment of prisoners of war; and the
relations with another state even if
protection of civilian persons in war
actual hostilities have not taken place
8. The Nuclear Nonproliferation Treaty
between them.
• HOW ARE THESE AGREEMENTS
ENFORCED?
Outlawry of War
o Protest lodged by one belligerent
accompanied by an appeal to world
• War was originally accepted as a legitimate
opinion
means of compulsion, provided that it was a
o Reparation for damages caused by the
reaction to an international delict.
defeated belligerent
• By contrast, the Charter of the United Nations is
o Punishment of war criminals
categorically committed to the outlawry of war,
its preamble begins with a declaration that the
Commencement of War
Organization is “determined to save succeeding
generations from the scourge of war which
• Hague Convention of 1907 à hostilities must
twice in our lifetime has brought untold sorrow
to mankind.” not commence without a previous and explicit
warning, in the form of either a reasoned
Laws of War declaration of war or of an ultimatum with
conditional declaration
• Despite the formal rejection of war, it has not • War commences from the moment of the first
yet been completely abolished as a means of act of force committed by one state with intent
solving disputes among nations. Hence, the of making war or committed without such intent
need to know its important laws such as: but considered by the other state as constituting
1. The Declaration of Paris of 1856, war.
concerning warfare at sea • War may start with…
2. The Hague Conventions of 1899, o A declaration of War
concerning the use of expanding bullets o The rejection of an Ultimatum
and asphyxiating gases o With the commission of an act of force
3. The Hague Convention of 1907, concerning regarded by at least one of the
the opening of hostilities; the laws and belligerents as an act of war
customs of warfare on land, conversion of
merchant ships into warships; the laying of Effects of the Outbreak of War
automatic submarine contact mines; naval
bombardment in times of war; the exercise 1. The laws of peace ceases and are superseded
of the right of capture in naval warfare; the by laws of war which governs the relations of
discharge of projectiles from balloons; the the belligerents for the duration of the hostilities.
adaptation of maritime warfare of the rules Third states are governed by the laws of
of the Geneva Convention of 1864 relative neutrality in their dealings with belligerents.

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2. Diplomatic and consular relations between the approach of the enemy,

belligerents are terminated and their respective spontaneously take arms to resist
representatives are allowed to return to their the invading troops without having
own countries had time to organize themselves,
provided only that they carry arms
3. Treaties of political nature, such as treaties of openly and observe the laws and
alliance, are automatically canceled, but those customs of war.
intended to operate during war, such as one o Officers and crew of merchant
regulating the conduct of hostilities between the vessels who forcibly resist attack
parties, are activated. Multipartite treaties • Rights when captured
dealing with technical or administrative matters, o Be accorded proper respect
like postal conventions, are deemed suspended appropriate with their rank
between belligerents. o To adequate food and clothing
o To safe and sanitary quarters
4. Individuals are impressed with enemy o To medical assistance
character: (a) under nationality test, if they are o To refuse to give military
nationals of the other belligerent wherever they information or render military
maybe; (b) under the domiciliary test, if they are service against their own state
domiciled aliens in the territory of the other o To communicate with their families
belligerent, on the assumption that they
contribute to its economic resources; and (c) 2. Non- Combatants
under activities test, if being foreigners, they • Those who do not engaged directly in the
nevertheless participate in the hostilities in favor hostilities.
of the other belligerent. Juridical persons, like • Not be subjected to attack as they are not
corporations, are regarded as enemies if a supposed to participate in the actual fighting.
majority of their capital stock is in the hands of • Do not enjoy identical rights as Combatants
enemy nationals or if they have incorporated in when captured but are nevertheless
the territory or under the laws of the other protected from inhumane treatment.
belligerent.
Conduct of the Hostilities
5. Enemy public property found in the territory of
the other belligerent at the outbreak of hostilities Three basic principles underlying the rules of
is, with certain exceptions, subject to warfare:
confiscation. Enemy private property may also
be confiscated, subject to return after the war in 1. Principle of Military Necessity à the
accordance with the treaty of peace. belligerents may employ any amount and kind
of force to compel the complete submission of
Combatants and Non-combatants the enemy with the least possible loss of lives,
time and money such as: blockade,
1. Combatants bombardments and devastation of property
• Those engaged directly in the hostilities;
subjected to direct attack from the enemy. 2. Principle of Humanity à prohibits the use of
• Following are regarded as combatants: any measure that is not absolutely necessary
o Members of the armed forces, for the purposes of the war, such as the
except those not actively engaged poisoning of wells and weapons, the
in combat such as chaplains and employment of expanding bullets and
medical personnel asphyxiating gases, the destruction of works of
o Irregular forces, such as guerrillas, art and property devoted to religious or
provided that: (a) they are humanitarian purposes, the bombarding of
commanded by a person undefended places and attach of hospital ships.
responsible for his subordinates; (b) • Other Examples:
they wear a fixed distinctive sign a. When the enemy vessel is sunk, the
recognizable at a distance; (c) they other belligerent must see to the safety
carry arms openly; (d) they conduct of the persons on board
their operations in accordance with b. The wounded and the sick must be
the laws and customs of war. humanely treated without distinction of
o Levee en masse - inhabitants of nationality in whose power they are
unoccupied territory who, on

41
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c. The rule that a combatant who send detachment to make its authority felt within
surrendered should not be killed and the occupied area.
agreements relating to the humane • Belligerent Occupation does not result in the
treatment of prisoners of war. transfer or suspension of the sovereignty of the
legitimate government although it may at the
3. Principle of Chivalry à requires the moment be unable to exercise it.
belligerents to give proper warning before
launching a bombardment or prohibit the use of What can the belligerent occupant DO?
treachery in the conduct of the hostilities; such 1. To restore and ensure public order and safety
as the use of Red Cross emblem to throw the while respecting, unless absolutely prevented,
enemy off-guard prior to an attack. False flags the laws in force in the country with regards
are not allowed in land warfare, but war vessels family honor and rights, lives of persons and
may sail under a flag not their own provided property and religious convictions and practice.
they haul it down and hoist their own flag prior 2. May promulgate new laws, political and non-
to the attack. political, whenever necessary provided they do
not contravene the generally accepted
• Spy à acting secretly or under false pretense, principles of international law. At the end of the
he obtains or seeks to obtain information in the occupation, the political laws are automatically
zone of operations of a belligerent with the abrogated while non-political laws may continue
intention of communicating it to the hostile party, even beyond the occupation unless they are
does not include scouts or soldiers in uniform of expressly repealed or modified by the legitimate
the other belligerent. government.
o Treatment: (1) are subject to the 3. To exact from the populace contributions over
municipal law of the other belligerent; and above the regular taxes for the needs of the
(2) if caught in the act, cannot be army of the occupant or for the administration of
punished without previous trial (Hague its occupied territory
Convention of 1907); (3) If he succeeds 4. Make requisitions of things or services for the
in rejoining his army and is latter needs of the occupying forces subject to
captured, he incurs no responsibility for valuable consideration
his previous acts and should be treated 5. To introduce military currency, provided the
as prisoner of war. purpose is not to degrade the country’s
economy.
Kinds of Warfare 6. Take possession of cash, funds and realizable
securities which are strictly the property of the
• Warfare maybe waged on land or sea or air and state, depots of arms, means of transport,
separately or simultaneously. stores and supplies and generally movable
• Booty à personal property found in the property belonging to the state which may be
battlefield. As a rule, it is subject to confiscation used for military operations
by the belligerent state except only the personal 7. All appliances, whether on land, at sea, or in the
belongings of the individual combatants, which air, adapted for the transmission of news, or for
have no military value such as jewelry. the transport of persons or things, exclusive of
• Theatre of war à the place where the cases governed by naval law, depots of arms
hostilities are actually conducted and generally all kinds of ammunition of war
• Region of war à the greater area where the may be seized but must be restored and
belligerents may lawfully engage each other, compensation fixed when peace is restored.
comprised of each belligerent’s territories and 8. Occupant belligerent is regarded only as
the open seas excluding neutral territories. administrator or usufructuary of public buildings,
real estate, forests, agricultural estates
Belligerents Occupation belonging to the hostile state and situated in the
occupied territory.
• Territory is deemed occupied when it is actually
placed under the authority of the hostile army, What can the belligerent occupant NOT DO?
but is limited only to the area where such
authority has been established and can be 1. Declare the independence of the occupied
effectively exercised. Every square foot need territory
not be actually occupied so long as the 2. Require its inhabitants to renounce their
occupying army can, within a reasonable time, allegiance to the lawful government

42
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3. Inflict general penalty, pecuniary or otherwise, to the subjects of the enemy state to travel
on the population on account of the acts of generally in belligerent territory
individuals for which it cannot be regarded as • Safe-conduct à a pass given to an enemy
collectively responsible. subject or to an enemy vessel allowing passage
4. Confiscate private property, except those with between defined points. Given either by the
military use, subject to restoration or belligerent government or by the commander of
compensation when peace is made. The the area within which it is effective
property of municipalities and of institutions • Safeguard à a protection granted by a
dedicated to religion, charity and education, and commanding officer either to enemy persons or
the arts and sciences, even when state owned, property within his command. When enforced
shall be treated as private property, and their by a detail of men, they must use extreme
destruction is expressly forbidden. measures if necessary to fulfill their trust, and
are themselves exempt from attack or capture
Postliminium by the enemy.
• License to trade à a permission given by the
• Right of Postliminy or Postliminium à That competent authority to individuals to carry on
in which persons or things taken by the enemy trade even though there is a state of war. May
are restored to the former state on coming either be:
actually into the power of the nation to which o General License à grants to all
they belong. subjects of the enemy state the right to
• Jus Postliminium à The reinstatement of the trade in specified places or in specified
authority of the displaced government once articles
control of the enemy is lost over the territory o Special License à grants to a certain
affected. person the right to trade in the manner
• Upon the end of the belligerent occupation, the specified in his license
laws of the re-established government are
revived and all acts taken by the belligerent Suspension of Hostilities
occupant that it could not legally do under the
law of nations, as well as lawful acts of political • Suspension of arms à temporary cessation of
complexion, are invalidated. the hostilities by agreement of the local
• Non-political acts performed during the commanders for such purposes as the
occupation, like a decree of divorce or judgment gathering of the wounded and the burial of the
for recovery of debt, remain valid even after the dead
occupation; but acts of political character, such • Armistice à suspension of all hostilities within
as conviction for a crime committed against the a certain area (local) or in the entire region of
previously occupying forces, automatically lose war (general) agreed upon by the belligerent
their validity upon the end of the occupation. governments, usually for the purpose of
arranging the terms of the peace.
Non-Hostile Intercourse
Suspension of arms Armistice
• Flag of truce à a white flag carried by an Military Purpose Political Purpose
individual authorized by one belligerent to enter May be concluded only
into communications with the other. The bearer, May be concluded by by the commander-in-
or parlementaire, is entitled to inviolability as Local Commanders chief of the belligerent
long as he does not take advantage of his governments
privileged position to commit an act of treachery. Usually in writing Usually in writing
However, the other belligerent is not obliged to
receive a flag of truce. • Cease-fire à an unconditional stoppage of
• Cartels à agreements to regulate intercourse hostilities by order of an international body like
during war on such matters as postal and UN Security Council for the purpose of
telegraphic communication, the reception of employing peaceful means of settling
flags of truce, and the exchange of prisoners. A differences between the belligerents.
cartel ship is a vessel sailing under a safe • Truce à cease-fire with conditions attached;
conduct for the purpose of carrying exchanged sometimes used interchangeably with armistice
prisoners of war.
• Capitulation à surrender of military forces,
• Passport à written permission given by the places or districts in accordance with the rules
belligerent government or its authorized agent of military honor.
Termination of War

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II. The fact that internal law does not

• War is supposed to end with the re- impose a penalty for an act which
establishment of peace but its precise date is constitutes a crime under international
uneasily fixed in view of the different methods of law does not relieve the person who
terminating state of hostilities, such as: committed the act from responsibility
o By the simple cessation of hostilities under international law.
à property or territory in the III. The fact that a person who committed
possession of the respective an act which constitutes a crime under
belligerents upon termination of the war international law acted as Head of
is retained by them in accordance with States or responsible Government
the principle of uti possidetis official does not relieve him from
o As distinguished from status quo ante, responsibility under international law.
which calls for the complete restoration IV. The fact that a person acted pursuant to
to their former owners of property or orders of his Government or of a
territory that may have changed hands superior does not relieve him from
during the hostilities with exception only responsibility under international law,
of prize and booty. provided a moral choice was in fact
o By the conclusion of a negotiated possible.
treaty of peace à resorted to when the V. Any person charged with a crime under
belligerents are unable to effect a international law has the right to a fair
decisive victory against each other trial on the facts and law.
o By the defeat of one of the VI. The crimes hereinafter set out are
belligerents followed by a dictated punishable as crimes under
treaty of peace or annexation of the international law:
conquered country a. Crimes against peace
§ Surrenders conditionally à a b. War crimes
treaty of peace is concluded c. Crimes against humanity.
embodying the conditions
specified in the surrender
§ Surrenders unconditionally à Chapter 19
the victorious belligerent NEUTRALITY
usually issues unilateral
declaration announcing the end
of the war followed by peace • A state is said to be neutral if it does not take
treaty dictated by it and part, directly or indirectly, in a war between
specifying the rules on the other states.
settlement of the obligations of • The general policy at present is to recognize
the defeated state and the only perfect or absolute neutrality, which
disposition of its territories. imports that the third state does not take sides
in any way whatsoever when other states are at
Aftermath of War war.

• One of the inevitable consequences is the Neutrality and Neutralization

implied judgment, right or wrong, that the
defeated belligerent is the guilty party in the Neutrality Neutralization
dispute that caused the hostilities. As such, it The result of a treaty
will be responsible for the war and will be Dependent solely on the
which provides for the
compelled to acknowledge the obligation to pay attitude of the neutral
duration and other
reparations for injuries and losses suffered by state, which is free to
conditions of
the victorious states. Its nationals will be join any of the
neutralization as agreed
punished as war criminals and will be held liable belligerents at any time
upon by the neutralized
for other violations of international law. it sees fit.
state and other powers
• Following are the Principles of the Nuremberg The agreement governs
Charter and Judgment: Governed by the law of
the conduct of the
I. Any person who commits an act which nations
signatories
constitutes a crime under international Intended to operate both
law is responsible therefore and liable Applicable only during
in times of war and
for punishment war
times of peace

44
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States and portion of theatre of war

states; such as rivers, Escaped prisoners of
Applicable only to states
canals, islands; maybe war need not be
Creation of wireless
neutralized detained but must be
stations for exclusively
assigned a place of
military purposes
Laws of Neutrality residence if they are
allowed to remain
• Where embodied Passage though its
o Customary law of nations territorial waters of
o Conventions such as: (a) Declaration of warships or prizes
Paris of 1856, (b) Hague Convention of belonging to belligerents
1907 and (c) Declaration of London of provided they do not
1909 enter neutral ports,
• Purpose – To define: harbors and roadsteads.
o Relations of the belligerent states with
the neutral states Exception: If due to
o Relations of the belligerent states with unseaworthiness, lack of
the nationals of the neutral state fuel or provisions or
stress of weather
Relations of the belligerent states with the conditions for a usual
neutral states duration of 24hrs which
may be shortened or
RIGHTS AND DUTIES extended depending on
Neutral State Belligerent State the reason for entry.
To abstain from taking Vessel must
Are bound to respect the immediately leave as
part in the hostilities and
status of the neutral soon as:
from giving assistance to
state a) Re-provisioned: can
either belligerents
To prevent its territory only take so much
Recruiting of soldiers
and other resources Avoid any act that will fuel/supplies as
and any military
from being used in the directly or indirectly needed until it reaches
operations in general
conduct of hostilities by involve it in their conflict the nearest of its
the belligerents ports;
To accept certain b) Weather improves;
restrictions and c) Repairs are
limitations that the To submit to any lawful completed - permitted
belligerent may find means the neutral state so long as they are not
necessary to impose, may take to maintain or intended to increase
especially in connection protect its neutrality its fighting force
with international Where vessels from
commerce both belligerents are in
neutral waters at the
Use of Neutral Territories same time, a period of
24hrs must elapse
Allowed Not Allowed (maybe between the departure
resisted with armed of the first and second
force if necessary, such vessel, its order being
resistance not being determined by their time
regarded as hostile act) of arrival. Maximum of
Passage of the sick and three vessels from any
wounded troops belligerent shall be
Movement of belligerent allowed simultaneously
provided personnel and
troops in the same neutral port
materials of war are not
also carried Use of territorial waters
Giving refuge to troops by the belligerent as
from belligerent forces Transport of war asylum when under
but must hold them as supplies pursuit or attack by the
far as possible from the enemy. If it refuses to

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leave, should be • Prize is not captured summarily but must be

rendered incapable of brought to a prize court for adjudication.
putting out to sea for the • Prize Court à A tribunal established by a
duration of the war. Its belligerent under its own laws, in its territory or
officers and crew being the territory of its aliens and applies the rules of
detained by the neutral international law in the absence of special
state municipal legislation
Passage of military • WHEN TITLE TO THE PRIZE, VESTS TO THE
aircraft belonging to CAPTOR? (1) If the vessel or goods are public
belligerents. If it lands, enemy, title vests immediately upon capture
should be detained and and (2) if not, title vests upon confirmation by
its officers and crew the prize court of the validity of the capture.
detained by the neutral • HOW ABOUT ITS CARGO? As provided in the
state. Declaration of Paris of 1856, (1) Enemy goods
under a neutral flag are not subject to capture,
Use of Neutral Facilities and Services except contraband of war and (2) neutral goods
under an enemy flag are not subject to capture,
• ALLLOWED: Export from or transit through its except when contraband of war.
territory of war supplies purchased from private
traders by the belligerents in the ordinary Contraband
course of commerce, but it is required to take
reasonable diligence in preventing the delivery • Term applied to goods which, although neutral
of vessels constructed and armed in its territory property, may be seized by a belligerent
for use by any of the belligerents because (1) they are useful for war and (2)
• NOT ALLOWED: (a) to send military bound for a hostile destination
contingents, (b) extend loans, or (c) sell • Categories of Contrabands
supplies of war to either or both of the o Absolute Contraband – necessarily
belligerents useful for war under all circumstances,
like rifles and ammunitions
Relations of the belligerent states with the o Conditional Contraband – have both
nationals of the neutral state civilian and military purposes, like food
and clothes
• Neutral states are free to allow their nationals to o Free List – includes goods that are
deal, in their private capacity, with any of the useful for war and bound for the
belligerents without compromising its neutrality; belligerents but exempted from the law
unless there are special rules imposing upon of contraband for humanitarian reasons,
the neutral state the duty of intervening in the like medicine and medical supplies
transaction. • Doctrine of Ultimate Consumption à Goods
• In the absence of special rules, international law intended for civilian use which may ultimately
considers the relationship as strictly between find their way to and be consumed by the
the individual and the belligerent state and belligerent forces are liable to seizure on the
whatever hardships may be suffered by the way
individual, as a rule, be accepted by the neutral • Doctrine of Infection à Innocent goods
state. shipped together with contrabands, both
belonging to the same owner; the innocent
Visit and Search goods may also be confiscated. As to the vessel
carrying the contraband, it is confiscable if the
• Right of belligerent warships and aircrafts with contraband are more than one-half of the total
regards neutral merchant vessels on the high cargo by weight, value, freight or volume.
seas for the purpose of determining whether • Doctrine of Ultimate Destination à The
they are in any way connected with the liability of contraband to capture is determined
hostilities not by their ostensible but by their real
• Instance when neutral merchant vessels maybe destination. Even if the vessel stops at an
captured as a prize: (a) when engaged in hostile intermediate neutral port, it will still be
activities, (b) when they resist visit and search considered as one continuous voyage provided
and (c) when there is reasonable suspicion that it can be shown that its cargo will ultimately be
they are liable to confiscation delivered to a hostile destination.

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 ACM

• This is to counteract the methods resorted to by Un-neutral Service

some vessels who pretend to stop at an
intermediate neutral port, where the goods are • Consists of acts, of a more hostile character
unloaded so as to give the appearance that they than carriage of contraband or breach of
were destined for this port, although the goods blockade, which are undertaken by merchant
are subsequently loaded again, either on the vessels of a neutral state in aid of any of the
same vessel (know as doctrine of continuous belligerents.
voyage) or on another vessel or form of • Acts considered as Un-neutral service: (the
transportation (known as doctrine of cargoes belonging to the owner of the vessels,
continuous transport), for final shipment to is likewise confiscable)
their real belligerent destination. 1. Making a voyage special for the transport of
individual passengers who are embodied in
Blockade the armed forces of the enemy or with a
view to the transmission of information in
• A hostile operation by means of which the the interest of the enemy;
vessel and aircraft of one belligerent prevent all 2. With the knowledge of the owner, or the
other vessels, including those of neutral states, one who charters the entire vessel, or of the
from entering or leaving the ports or coasts of master, it is transporting a military
the other belligerent. detachment of the enemy or one or more
• Purpose: To shut off the place from international persons who, during the voyage, lend direct
commerce and communication with other states assistance to the operations of the enemy.
• Differs from pacific blockade, since the latter 3. Takes direct part in the hostilities
only applies to the vessels of the blockaded 4. If it is under the orders or control of an
state and does not affect the vessel of other agent placed on board by the enemy
states. government
• Requisites to be valid: 5. If it is chartered entirely by the enemy
o BINDING, i.e. duly communicated to the government
neutral states 6. If it is at the same time and exclusively
o EFFECTIVE, meaning that it is either devoted to the transport of enemy
maintained by adequate force so as to troops or the transmission of information in
make ingress or egress from the port the interest of the enemy
dangerous
o ESTABLISHED BY PROPER Angary
AUTHORITIES of the belligerent
government, generally by the head of • Right of the belligerent to seize, use or destroy
state neutral property found in its territory, in enemy
o LIMITED ONLY TO THE TERRITORY territory or on the high seas in case of urgent
OF THE ENEMY and not extended to necessity for purposes of offenses and defense
neutral places or international rivers subject to payment of just compensation.
o IMPARTIALLY APPLIED to all states • Requisites:
alike o That the property is in the territory
• When captured, the liability of a neutral vessel under the control or jurisdiction of the
for breach of blockade is contingent on its belligerent
knowledge, actual or presumptive, of the o There is urgent necessity for the taking
blockade and continues as long as it is pursued o Just compensation is paid to the owner
by the ships of the blockading force after it has
left or tried to enter the blockaded port. If the Angary Eminent Domain
pursuit is abandoned or the blockade is lifted, Exercised over
CANNOT be exercised
capture of the ship can no longer be effected. properties that is only
over properties that is
• A vessel found guilty of breach of blockade is temporarily under the
only temporarily under
liable to condemnation and so is its cargo, jurisdiction of the
the belligerent's
unless it is proved that at the time it was belligerent, usually over
jurisdiction
shipped the owner neither knows nor could the owner's objection
have known of the intention to violate the Purpose for taking the
blockade. Property is taken for the property is not to destroy
purpose of destroying it it

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Termination of Neutrality

1. When the neutral state itself joins the war à

The previously neutral state will be governed by
laws of war in its relation with other belligerents
and laws of neutrality in its relations with all
other states.
2. Upon conclusion of peace à All states will
again be governed by the laws of peace

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