Chapter 1: The Nature of Public International Law

Public International Law

 Branch of public law which regulates the relations between states and other entities that have
been granted international personality.

Private International Law

 Concerned with the resolution of conflict of laws

 Consists of rules and principles of general application dealing with the conduct of states and of
inter-governmental organizations and with their relations inter se

Public International Law Private International Law

Nature or character
Parties involved
Transactions
Contracts are breach
International
States or sovereigns and other
entities with international
personality
Dealing of states or sovereigns
and other entities with
international personality
Parties may resort to either
pacific or amicable means of
settling dispute
Municipal
Private individuals
Dealings of private individuals
are involved
Parties may file their cases
before the municipal or local
tribunals

Divisions of International Law

1. Laws of peace
 Rules being followed by the states in their day-to-day dealings with each other in times of
peace
2. Law of war
 A body of law concerning acceptable justification to engage in war (jus ad bellum)
 Specific limitation of the conduct of warfare (jus in bello)
3. Laws of neutrality
 Norms of conduct that must be observed by the neutral states in their dealing with the
belligerents who are fighting each other.
Chapter 2: SOURCES OF INTERNATIONAL LAW

Primary Sources of International Law

1. Treaties and conventions
 legally binding contracts between states
 rules of conduct of states in dealing with each other
2. International Customs
 General and consistent practice of states which they follow from a sense of legal obligations
 Derived from customs
3. General Principles of Law Recognized by the Nations
 Provide a mechanism to address international issues not already subject either to treaty
provisions or to binding customary rules.

Secondary Sources

1. Decision of Courts
 Decisions of international tribunals, international arbitral bodies and to some extent the
decisions of the courts of each country.
 Decision of the Court are binding between the parties with respect of that particular case.
2. Teaching of Publicists
 Determination of rules of law

Bases of International Law

1. The Law of Nature School

 Law is based on what is “correct”
 Law is based on morality and ethics
2. Positivist School
 Agreement of the states to be bound by such covenant
 Agreement must be written and voluntarily agreed
3. Electic/Grotian School
 International Law is binding because it is good, right, and agreed upon by the parties.

Functions of International Law

 Attainment and maintenance of lasting world peace

1. Promote international peace and security
2. Foster friendly relations among nations
3. Provide for orderly regulation of conduct of states in their mutual dealings
4. Ensure international cooperation in pursuit of certain common purposes of economic, social,
cultural, and humanitarian objectives
Bases of Applying International Law in Local Jurisdiction

1. Doctrine of Incorporation
 All states must adopt International Law as part of the law of the land
 No legislative action is required to make them applicable in the local jurisdiction
 Mandated by Section 2, Article II of the 1987 Constitution which provides that:
“the Philippines renounces war as an instrument of the national policy, adopts the generally
accepted principles of international Law as part of the law of the land and adheres to the
policy of peace, equality, justice, freedom, cooperation, and amity with all nations.

 Rules of International Law are given equal standing with, but are not superior to, national
legislative enactments.
 Principle of les posterior derogate piori takes effect – a treaty may repeal a statue and a statue
may repeal a treaty.
 In states where the Constitution is the highest law of the land, both statutes and treaties may be
INVALIDATED if they are in conflict with the Constitution.

2. Doctrine of Transformation
 The state adopts an International law by enacting a statue that in effect would convert an
International Law principle to a Municipal Law of the state.
 Purpose of such conversion is to make International Law valid and binding among the citizens of
such state.

Principle of Opinio Juris ( an opinion of law or necessity)

 A particular action was carried out because it was a legal obligation

 Opinio juris – states must act in compliance with the norm not merely out of convenience, habit,
coincidence, or political expediency, but rather OUT OF SENSE OF LEGAL OBLIGATION.

Soft Law vs. Hard Law

1. “Soft law” refers to rules or quasi-legal instruments which DO NOT have any LEGALLY binding
force, or whose binding force is deemed weaker than the binding force of traditional law.
2. “Hard law” refers to actual binding legal instruments and laws.
 It includes self-executing treaties or international agreements, as well as customary laws.
CHAPTER 3: SUBJECTS OF INTERNATIONAL LAW

International Legal Personality

1. Entity is a subject of International Law if it has “International Legal personality”

2. Subjects must have rights, powers and duties and must exercise them under IL.
3. Subject of International Law should:
a. Bring claims before international and national courts and tribunals to enforce their
rights.
b. Have the ability or power to come into agreements that are binding under IL
c. Enjoy immunity from the jurisdiction of foreign country, and
d. Be subject to international obligations

Subjects of International Law

1. State
 It is a community of persons, more or less numerous, permanently occupying a definite portion
of territory, independent of external control and possessing an organized government to which
the great body of inhabitants render habitual obedience.

Qualifications
a. Permanent population
b. Defined territory
c. Government
d. Capacity to enter into relations with other states (Sovereignty)
2. Colonies and Dependencies
 A territory under the immediate political control of a state, distinct form the home territory of
the sovereign.
3. Mandates
 A league of Nations mandates.
4. The Vatican (Holy See)
 Holy see is derived form the Latin Sancta Cedes which means “Holy Chair”. It refers to the seat
occupied by the incumbent Pope
5. United Nations

Structure of the UN
1. General Assembly
2. Security Council
3. Economic and Social Council
4. Trusteeship Council
5. International Court of Justice
6. Secretariat
Budget of UN

 Contributions of Members

General Assembly

 Main deliberative organ of the UN and composed of representative of all Member States.
 1 representative = 1 vote
 Admission of new members and budgetary matters = 2/3 majority

Security Council

 Maintains international peace and security

Economic and Social Council

 Coordinate the economic, social and related work of the United Nations and specialized
agencies and institutions
 Responsible for promoting higher standards of living, full employment, and economic and social
progress, identifying solutions to international economic, social and health problems, facilitating
international cultural and educational cooperation, and encouraging universal respect of human
rights and fundamental freedoms.

Trusteeship Council

 Provide international supervision for 11 Trust territories.

Secretariat

 Caries out the day-to-day work of the Organization

International Court of Justice

 Located at the The Hague, Netherlands, is the principal judicial organ of the UN.
 It settles legal disputes between states and gives advisory opinions to the UN and its specialized
agencies.
 Functions:
a. Settle in accordance with IL, legal disputes submitted to it by the States and to give
advisory opinions on legal questions referred to it by authorized UN organs and
specialized agencies.
 Compositions:
a. 15 judges ( 9 year terms)
 Jurisdictions
a. ICJ has to decide, in accordance with IL, disputes of a legal nature that are submitted to
it by States.
b. International legal dispute – dis-agreement on a question of law or fact, a conflict, a
clash of legal views or of interests.
CHAPTER 4: THE STATE
 Community of persons, more or less numerous, permanently occupying a definite portion of
territory, independent of external control and possessing an organized government to which the
great body of inhabitants render habitual obedience.

Act of State Doctrine

 Every state is bound to respect the independence of every other sovereign state, and the courts
will not sit in judgment of another government’s acts done within its own territory.
 No state has jurisdiction over another state.

Authority to Recognized Another State

 Executive Department is primarily endowed with the power to recognized foreign governments
and States

Declaratory vs. Constitutive School

1. Declaratory School (Majority view)

 A state as a person of International Law that meets certain structural criteria.
a. Permanent population
b. Defined territory
c. Government
d. Capacity to enter into relations with another state
2. Constitutive School (minority view)
 A state as a person of IL if, and only if, it is recognized as sovereign b other states.

Elements of the State

1. PERMANENT POPULATION
 Comprise all persons who inhabit the territory of a state in permanent way.
 It may consist of nationals and foreigners.

Citizens vs Subjects

Citizens
a. People comprising the state
b. Entitled to the rights and privileges of a freeman
c. Either natural-born or naturalized

Subjects

d. People of a monarchical state and governed by the monarch’s law

 Nationality

e. Membership in a political community with corresponding rights and obligations

f. He is required to obey his laws.

2. TERRITORY
 A fixed portion of the surface of the earth inhabited by the people of the state.
 Geographical area that is owned and controlled by the state in order to exercise its sovereignty.

Terrestrial or Land Domain

 Land mass
 Several lands
 Includes all resources attached to the land
 State exercises jurisdiction over everything found within its territorial domain

Exemption from Territorial Jurisdiction

1. Foreign states, heads of states, diplomatic representatives and consuls to a certain degree
2. Foreign state property, including embassies, consulates and public vessels engaged in non-
commercial activities
3. Acts of state
4. Foreign merchant vessels exercising the rights of innocent passage or arrival under stress
5. Foreign armies passing through or stationed in its territories with its permission
6. Such other persons or property, including organizations like the UN, over which it may by
agreement, waive jurisdiction.

Doctrine of Effective Occupation

 The nationals of the discovering state, in its name or by authority, must take possession of the
territory.
 They must establish thereon an organization or government capable of making laws and
commanding respect for them.

Jurisdiction over Aerial Domain

 Subjacent state has jurisdiction over the airspace above it to the upward limits of the
atmosphere.
 No foreign, civil or military, may pass through the aerial domain of a state without its consent.

Five Air Freedoms

1. Freedom to fly across foreign territory without landing

2. Freedom to land for non-traffic purposes
3. Freedom to put down traffic originating in the state of the aircraft
4. Freedom to embark traffic destined for the state of the craft.
5. Freedom to embark traffic destined for, or to put down traffic coming from a third state.
 Outer Space
 It is res communes and belongs to all mankind.
 Outside the commerce of man and cannot be the object of mode of acquisition.
 NOT a subject to the jurisdiction of any state.
 Astronauts are under the jurisdiction of their states of registry based on the Registration of
Objects in Space convention of 1974.

Archipelago Doctrine
 The baseline from which the inland and territorial sea of an archipelago is to be determined
consists of the straight lines joining appropriate points of the outermost islands or edge of the
archipelago.

Archipelago

 Chain or cluster of islands.

Territorial sea vs. Internal waters

Territorial sea
a. Belt of the sea located between the coast and internal waters of the coastal state on the
one hand and the high seas on the other, extending up to 12 nautical miles from the low
water mark or in the case of the archipelagic states, from the baselines.

Internal waters

b. Cover all water and waterways on the landward side of the baseline

FOR TERRITORY >>> REVIEW AGAIN >>> WATERS TOPIC

3. GOVERNMENT
 The agency or machinery that carries out the will of the state.
 Must be organized, exercising control over and capable of maintaining law and order within the
territory.

Forms of Government

a. Monarchy – supreme authority is in the hands of a single person

b. Aristocracy – political power is exercised by a few privileged individuals known as
aristorcrats
c. Democracy – government n which the political power is exercised by a majority of the
people

Other forms of Government

a. Unitary
b. Federal
c. Parliamentary
 d. Presidential – government where the executive is independent of the legislative as to
tenure, policies and acts
e. De Jure – administration of this government may or may not have the support of the people
but is is founded on existing constitutional laws of the state.
f. De Facto – government is founded not on existing constitutional laws of the state but it has
the support of the majority of the people.

Effect of Change in Government

 It is well settled that as far as the right of the predecessor government are concerned, they are
inherited in toto by the successor government

Doctrine on recognition of government

 Governments, like states and belligerents must be recognized.

Wilson/Tobar Doctrine

 Recognition cannot be extended to any government coming into existence by revolutionary

means unless the people freely elected their representatives via a constitutional process

Estrada Doctrine

 It is a policy of never issuing any declaration giving recognition to governments and of accepting
whatever government is in effective control without raising the issue of recognition.

Stimson Doctrine

 Precludes recognition of any government established as a result of external aggression.

Requisites for De Jure Recognition

1. There is a government that is stable and effective

2. There is no substantial resistance to its authority
3. Government must show willingness and ability to discharge its international obligations
4. Government must enjoy popular consent or approval of the people.

Effects of Recognition of a State or Government

a. Establishment of diplomatic relations

b. Right to sue in courts of recognizing state
c. Right to possess the properties of predecessor on the recognizing state
d. All acts of the recognized state or government are validated retroactively preventing the
recognizing state form passing upon the legality of its own courts.
4. SOVEREIGNTY

 The supreme power of the state to enforce its will on its members within its jurisdiction and to
have freedom from foreign control

Kinds of Sovereignty

a. Internal – refers to supreme power of the state to enforce its laws on its territorial
jurisdiction
b. External – refers to the power of the state to be free form external or foreign control.

Is Sovereignty absolute?

 No, it is subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly
or impliedly, as a member of the family of nations.

Effect of Change in Sovereignty

1. Political laws – are suspended subject to revival under the principle of jus poslimini upon the
end of occupation.
2. Non-political laws are not affected since non-political laws are laws intended to govern the
relations of individuals.
3. Judicial decisions are valid during the occupation and even beyond it, except those of
political complexion, which are automatically annulled upon the restoration of the
legitimate authority

The Principle of State Continuity

 From the moment of creation, the state continues as a juridical person regardless of the changes
in its circumstances provided, they do not result to the loss of any of its essential elements.

Belligerency

 It is the status of parties legally at war.

Recognition of Belligerency

 Exists when a considerable portion of the territory of a state is under the effective control of an
insurgent community which is seeking to establish a separate control of an insurgent community
which is seeking to establish a separate government and that the insurgents are in de facto
control of a portion of the territory and population, have a political organization, are able to
maintain such control, and conduct themselves according to the laws of war.

Conditions of Recognition of Belligerency

 They must have organized civil government having control and supervision over the armed
struggle, serious and widespread struggle with uncertain outcome, occupation of a substantial
portion of the national territory; and willingness on the part of the rebels to observe the
rules/customs of war.
Effects of Recognition of Belligerency

 The responsibility for acts of the rebels resulting in injury to nationals of the recognizing state
shall be shifted to the rebel government
 The legitimate government recognizing the rebels shall observe the laws of war in conducting
hostilities.
 The 3rd states recognizing belligerency shall maintain neutrality and the recognition is only
provisional meaning for the duration of the armed struggle and only for the purpose of the
hostilities.

CHAPTER 5: FUNDAMENTAL RIGHTS OF STATES

Rights of States:

1. Right to existence and self-defense

2. Right of sovereignty and independence
3. Right of equality
4. Right to territorial integrity and jurisdiction
5. Right of legation or to enter diplomatic relations
6. Right of extraterritoriality

Right to existence and self-defense

 The most comprehensive right of the state as all other rights flow from it.

Right of Proper Exercise of Right of Self-defense

Requisites:

1. An armed attack or aggression;

2. Self-defensive action taken by attacked state must be reported immediately to the Security
Council;
3. Such action shall not in any way affect right of Security Council to take at any time action as it
deems necessary to maintain or restore international peace and security.

Aggression:

 Refers to an act or policy of expansion carried out by one state at the expense of another by
means of an unprovoked military attack.
 Defined in international law as use of armed force in international relations not justified by
defensive necessity, international authority, or consent of the state in which force is used.

Right of Sovereignty and Independence

 Every state has the right to be sovereign in its territorial jurisdiction

 Sovereignty - the supreme power of the state to enforce its will on all its members and to have
freedom from foreign control.
 Quality of having supreme, independent authority over a territory.
  Independence means freedom form control by other states and not freedom from the restriction
that are binding on all states forming the family of nations.

Right of Equality

 Inherent in a state as a subject of IL and is widely accepted among the family of nations.
 Right of every state to have 1 vote in matters requiring the consent of states like the voting in
the UN General Assembly.
 No state can claim jurisdiction over other states
 Sovereign Immunity – prevents one state form being sued in the courts of another state without
the consent of the first state.

Par In Parem Non Habet Imperium (An equal has no power over an equal)

 Principle that one sovereign power cannot exercise jurisdiction over another sovereign power.

Right to Territorial Integrity and Jurisdiction

 States should not attempt to promote secessionist movements or to promote border changes in
other state.

Right of Legation

 Right of every state to enter diplomatic relations with other states.

 Active right of legation is the act of sending diplomatic representatives to another state
 Passive right of legation is the right of a state to receive diplomatic envoys from other states.

Congress of Vienna of 1815

Diplomatic ranks:

1. Ambassador Extraordinary and Plenipotentiary

 Ambassador – head of mission, formally representing the head of state. Titles “His/Her
Excellency”
 Plenipotentiary powers – full authority to represent the government
 Papal Nuncio – ambassador representing the Vatican or Holy See
2. Envoy Extraordinary and Minister Plenipotentiary
 Envoy – head of mission, not considered a representative of the head of state, but nonetheless
with plenipotentiary powers (full authority to represent the government)
3. Minister Resident or Resident Minister
 Lower rank of full head of mission, above only charge dáffaires
4. Charge d affaires
 In charge of the affaires of a diplomatic mission in the usually temporary absence of a more
senior diplomat.

Functions of Diplomatic Missions

1. Represent the sending state in receiving state

2. Protect in receiving state interest of sending state and its nationals
3. Negotiate with government of receiving state
 4. Promote friendly relations between sending and receiving states and developing their economic,
cultural and scientific relations
5. Ascertain by all lawful means conditions and developments in receiving state and reporting
thereon to government of sending state
6. Represent friendly governments at their requests.

Note:

1. Immunity of the sovereign is recognized ONLY with regard to public acts or acts jure imperii, but
NOT with regard to public acts or acts jure gestionis.
2. The Supreme Court ruled that the slander of a person cannot be considered as falling within the
purview of the immunity granted to ADB officers and personnel because it was not uttered while
in the performance of his official functions.

Extraterritoriality

 The exemption from the jurisdiction of local law, usually as the result of diplomatic negotiations
 Can be applied to physical places, such as foreign embassies, military bases of foreign countries
or offices of the UN.
 Often extended to friendly or allied militaries, for purposes of allowing that military to simply
pass through one’s territory.

CHAPTER 6: TREATIES AND INTERNATIONAL CONVENTIONS

Treaty

 International agreement concluded between states in written form and governed by IL, whether
embodied in a single instrument or in two or more related instruments and whatever its
particular designation
 Are main source of IL.
 Written, legally biding instruments, setting out the rights and obligations of parties.

Bilateral and Multilateral Treaties

 Bilateral treaties are concluded between two states (ex. Visiting Forces Agreement between
Philippines and USA)
 Multilateral treaty – concluded among several counties (ex. Charter of the UN). It establishes
rights and obligations between each party and every other party.

Requisites of a Valid Treaty

1. Entered into by parties with treaty-making capacity;

2. Entered into by their organs or representatives
3. Treaty was without attendance of duress, mistake or fraud or vice of consent
4. Has a lawful subject matter and object;
5. Ratified in accordance with their respective constitutional processes.
Note:

1. The SC declared as unconstitutional the MOA-AD. It ruled that no province, city, or municipality,
not even the ARMM, is recognized under our laws as having an “Associative” relationship with
the national government.
2. President is vested with the exclusive power to conduct and manage the country’s interface
with other states and governments.
 Constitutional mandates emanate from the inherent power of the President to enter into
agreements with other states, including the prerogative to conclude binding executive
agreements that do not require further Senate concurrence.

DOCTRINES IN TREATIES

 Jus cogens,
 Pacta sunt sevanda
 Clausala rebus sic stantibus
 Most Favored Nation clause

1.Just Cogens
 Compelling law
 Any country may not violate this “higher law”
 Refers to norms that command peremptory authority, superseding conflicting treaties and
custom.
 Prohibitions against genocide; slavery or slave trade; murder or disappearance of individuals;
torture or other cruel, inhuman, or degrading treatment or punishment; prolonged arbitrary
detention; systematic racial discrimination; and “principles of the UN Charter prohibiting the use
of force

2. Pacta sunt servanda

 Promises must be kept
 Agreements and stipulations of the parties to a contract must be observed.
 Every treaty in force is binding upon parties to it and must be performed by them in good faith.

3.Clausula rebus sic stantibus

 “things thus standing”
 Allows treaties to become inapplicable because of a fundamental change of circumstances.
 Parties to a treaty is justified in on compliance with its treaty obligations due to a supervening
event not completed at the time of the inception of the treaty.
 Accepted EXCEPTION to the general rule of pacta sunt servanda.

4. Most Favored National Clause

 The country which is the recipient of this treatment must, nominally, receive equal trade
advantages as the “most favoured nation “by the country granting such treatment.
Termination of Treaties

May take place:

1. In conformity with the provisions of the treaty

2. At any time by consent of all the parties after consultation with the other contracting States

Note:

 The emergence of a new peremptory norm of general IL (jus cogens) is a valid ground for
termination of treaty. If a new peremptory norm of general IL emerges, any existing treaty
which is in conflict with that norm becomes void and terminates.

May a treaty violate IL?

 A treaty cannot be allowed to transgress the settle principles of IL particularly the doctrine of jus
cogens, otherwise the treaty is void for being contrary to a compelling law.