SUBJECTS OF INTERNATIONAL LAW

1) States
There are various situations when the question of statehood arises.
Examples are when a portion of a territory has seceded, or when there is
foreign control over the affairs of an entity which claims to be a state, or
when states have formed a union but continue to retain some autonomy,
and when individual members of a federation claim statehood.

a) Article 1, 1933 Montevideo Convention

The traditional statement of the characteristics which make an entity
a state is found in the Montevideo Convention of 1933 on Rights and
Duties of States: “The state as a person of international law should
possess the following qualifications: (a) a permanent population; (b) a
defined territory; (c) government; (d) the capacity to enter into
relations with other States.”

Hence, the definition of the concept “state” which has found currency
among Philippine writers is this: 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.

b) Elements
Commentators, following the Montevideo Convention, break down
the concept into four elements: people, territory, government, and
sovereignty.

People or Population
As an element of a state, “people” simply means a community of
persons sufficient in number and capable of maintaining the
permanent existence of the community and held together by a
common bond of law. It is of no legal consequence if they possess
diverse racial, cultural, or economic interests. Nor is a minimum
population required.

1
Territory
A definite territory over which an entity exercises permanent
sovereignty is another element of a state. But as the Restatement
(Third) on the Foreign Relations Law of the United States explains:
“An entity may satisfy the territorial requirement for statehood even
if its boundaries have not been finally settled, if one or more of its
boundaries are disputed, or if some of its territory is claimed by
another state. An entity does not necessarily cease to be a state even
if all its territory has been occupied by a foreign power or if it has
otherwise lost control of its territory temporarily.”

Government
Government, as an element of a state, is defined as “that institution
or
aggregate of institutions by which an independent society makes and
carries out those rules of action which are necessary to enable men to
live in a social state, or which are imposed upon the people forming
that society by those who possess the power or authority of
prescribing them.” International law does not specify what form a
government should have. Moreover, for purposes of international
law, it is the national government that has legal personality and it is
the national government that is internationally responsible for the
actions of other agencies and instrumentalities of the state. Finally, a
temporary absence of government, for instance during an occupation
by a foreign power, does not terminate the existence of a state.

Sovereignty
Sovereignty means independence from outside control. The
Montevideo Convention expresses this in positive terms as including
“the capacity to enter into relations with other States.” This latter
element of sovereignty, however, is dependent on recognition. An
entity may in fact possess all the elements of a state but if one or
more states do not extend recognition to it, the entity would not be
able to establish relations with those states. Incidentally, although the
Philippines was not yet an independent state in 1945, it was accepted
as one of the original signatories of the United Nations Charter.

2
 Sovereignty as an element of a state is related to but not identical
with the broader concept of the right of self-determination. In the
post- World War II era, there have arisen numerous new states. The
impetus behind the birth of new states is the principle of self-
determination of peoples. Both the International Covenant on Civil
and Political Rights and the International Covenant on Economic,
Social, and Cultural Rights assert the principle of self determination of
people in identical
language: “All peoples have the right of self-determination.

By virtue of that right they freely determine their political status and
freely pursue their economic, social and cultural development.” This
principle has been affirmed and reaffirmed by various documents of
the United Nations, notably the Declaration on the Granting of
Independence to Colonial Countries and Peoples (1960) and the
Declaration on Principles of International Law concerning Friendly
Relations and Cooperation among States in accordance with the
Charter of the United Nations. (1970).

c) Creation

Creation of States
The process of creating new states is a mixture of fact and law,
involving the establishment of particular factual conditions and
compliance with relevant rules. The accepted criteria of statehood
were laid down in the Montevideo Convention (1933), which provided
that a state must possess a permanent population, a defined territory,
a government, and the capacity to conduct international relations.

The need for a permanent population and a defined territory is clear,

though boundary disputes—e.g., those concerning Albania after
World War I and Israel in 1948—do not preclude statehood. The
international community (including the UN) has recognized some
states while they were embroiled in a civil war (e.g., the Congo in 1960
and Angola in 1975), thus eroding the effective-government criterion.
Croatia and Bosnia and Herzegovina were also recognized as new
states by much of the international community in 1992, though at the

3
time neither was able to exercise any effective control over significant
parts of its territory. Although independence is required, it need not
be more than formal constitutional independence.

States may become extinct through merger (North and South Yemen
in 1990), absorption (the accession of the Länder [states] of the
German Democratic Republic into the Federal Republic of Germany in
1990), dissolution and reestablishment as new and separate states
(the creation of separate Czech and Slovak republics from
Czechoslovakia in 1993), limited dismemberment with a territorially
smaller state continuing the identity of the larger state coupled with
the emergence of new states from part of the territory of the latter
(the Soviet Union in 1991), or, historically, annexation (Nazi Germany’s
Anschluss of Austria in 1938).

Recognition of States
Recognition is a process whereby certain facts are accepted and
endowed with a certain legal status, such as statehood, sovereignty
over newly acquired territory, or the international effects of the grant
of nationality. The process of recognizing as a state a new entity that
conforms with the criteria of statehood is a political one, each country
deciding for itself whether to extend such acknowledgment. Normal
sovereign and diplomatic immunities are generally extended only
after a state’s executive authority has formally recognized another
state (see diplomatic immunity). International recognition is
important evidence that the factual criteria of statehood actually have
been fulfilled. A large number of recognitions may buttress a claim to
statehood even in circumstances where the conditions for statehood
have been fulfilled imperfectly (e.g., Bosnia and Herzegovina in 1992).
According to the “declaratory” theory of recognition, which is
supported by international practice, the act of recognition signifies no
more than the acceptance of an already-existing factual situation—
i.e., conformity with the criteria of statehood. The “constitutive”
theory, in contrast, contends that the act of recognition itself actually
creates the state.

4
Before granting recognition, states may require the fulfillment of
additional conditions. The European Community (ultimately
succeeded by the EU), for example, issued declarations in 1991 on the
new states that were then forming in eastern Europe, the former
Soviet Union, and Yugoslavia that required, inter alia, respect for
minority rights, the inviolability of frontiers, and commitments to
disarmament and nuclear nonproliferation.

The timing of any recognition is crucial—particularly when a new state

has been formed partly from an existing one. Premature recognition
in a case of secession can amount to intervention in a state’s internal
affairs, a violation of one of the fundamental principles of
international law. Recognition of governments is distinguished from
the recognition of a state. The contemporary trend is in fact no longer
to recognize governments formally but to focus instead upon the
continuation (or discontinuation) of diplomatic relations. By this
change, states seek to avoid the political difficulties involved in
deciding whether or not to “recognize” new regimes taking power by
nonconstitutional means.

Although states are not obliged to recognize new claimants to

statehood, circumstances sometimes arise that make it a positive duty
not to recognize a state. During the 1930s, U.S. Secretary of State
Henry Stimson propounded the doctrine of the nonrecognition of
situations created as a result of aggression, an approach that has
been reinforced since the end of World War II. In the 1960s, the UN
Security Council “called upon” all states not to recognize the
Rhodesian white-minority regime’s declaration of independence and
imposed economic sanctions. Similar international action was taken in
the 1970s and ’80s in response to South Africa’s creation of
Bantustans, or homelands, which were territories that the white-
minority government designated as “independent states” as part of
its policy of apartheid. The Security Council also pronounced the
purported independence of Turkish-occupied northern Cyprus as
“legally invalid” (1983) and declared “null and void” Iraq’s annexation
of Kuwait (1990). The UN also has declared that Israel’s purported
annexation of the Golan Heights (conquered from Syria in 1967) is

5
 invalid and has ruled similarly with regard to Israel’s extension of its
jurisdiction to formerly Jordanian-controlled East Jerusalem.

d) Classes

Sovereign States
A sovereign state, also known as sovereign country, is a political entity
represented by one centralized government that has sovereignty over
a geographic area. International law defines sovereign states as
having a permanent population, defined territory, one government,
and the capacity to enter into relations with other sovereign states. It
is also normally understood that a sovereign state is independent.
According to the declarative theory of statehood, a sovereign state
can exist without being recognized by other sovereign states.
Unrecognized states will often find it difficult to exercise full treaty-
making powers or engage in diplomatic relations with other sovereign
states.

Non-sovereign States
This includes:
a) A previously independent state, representing those nations which
were independent and are subsumed into transnational states like
the United Kingdom with constituent countries.
b) Active autonomist and secessionist movement, representing those
nations which are currently part of a transnational state but would
like to secede from the state.
c) A dependent territory, a territory which often has a high degree of
self-governance, but which is governed by another "parent" state.
It often has cultural and historical ties to, and relies on, the parent
state for defense.

Non-Typical States
A few states which are though sovereign, are not like sovereign states
is consider as Non typical states. Holy see- The term Holy see is used
the supreme organ of the Catholic Church, i.e Bishop of Rome. Vatican
city is example of Vatican city.

6
2) Vatican City
In 1929, the Lateran Treaty was signed with Italy which recognized the
state of the Vatican City and “the sovereignty of the Holy See in the
field of international relations as an attribute that pertains to the very
nature of the Holy See, in conformity with its traditions and the
demands of its mission in the world.” It has no permanent population.

a) Holy See v. Rosario, G.R. No. 101949, 1 December 1994

Facts: Petitioner is the Holy See who exercises sovereignty over the
Vatican City in Rome, Italy, and is represented in the Philippines by the
Papal Nuncio; Private respondent, Starbright Sales Enterprises, Inc., is
a domestic corporation engaged in the real estate business. This
petition arose from a controversy over a parcel of land consisting of
6,000 square meters located in the Municipality of Paranaque
registered in the name of petitioner. Said lot was contiguous with two
other lots registered in the name of the Philippine Realty Corporation
(PRC).

The three lots were sold to Ramon Licup, through Msgr. Domingo A.
Cirilos, Jr., acting as agent to the sellers. Later, Licup assigned his
rights to the sale to private respondent.

In view of the refusal of the squatters to vacate the lots sold to

private respondent, a dispute arose as to who of the parties has the
responsibility of evicting and clearing the land of squatters.
Complicating the relations of the parties was the sale by petitioner of
Lot 5-A to Tropicana Properties and Development Corporation
(Tropicana).

private respondent filed a complaint with the Regional Trial Court,

Branch 61, Makati, Metro Manila for annulment of the sale of the
three parcels of land, and specific performance and damages against
petitioner, represented by the Papal Nuncio, and three other
defendants: namely, Msgr. Domingo A. Cirilos, Jr., the PRC and
Tropicana

7
petitioner and Msgr. Cirilos separately moved to dismiss the
complaint — petitioner for lack of jurisdiction based on sovereign
immunity from suit, and Msgr. Cirilos for being an improper party. An
opposition to the motion was filed by private respondent.

the trial court issued an order denying, among others, petitioner’s

motion to dismiss after finding that petitioner “shed off [its]
sovereign immunity by entering into the business contract in
question” Petitioner forthwith elevated the matter to us. In its
petition, petitioner invokes the privilege of sovereign immunity only
on its own behalf and on behalf of its official representative, the Papal
Nuncio.

Issue: Whether the Holy See is immune from suit insofar as its
business relations regarding selling a lot to a private entity?

Ruling: The Republic of the Philippines has accorded the Holy See the
status of a foreign sovereign. The Holy See, through its Ambassador,
the Papal Nuncio, has had diplomatic representations with the
Philippine government since 1957. This appears to be the universal
practice in international relations.

There are two conflicting concepts of sovereign immunity, each

widely held and firmly established. According to the classical or
absolute theory, a sovereign cannot, without its consent, be made a
respondent in the courts of another sovereign. According to the
newer or restrictive theory, the immunity of the sovereign is
recognized only with regard to public acts or acts jure imperii of a
state, but not with regard to private acts or acts jure gestionis
If the act is in pursuit of a sovereign activity, or an incident thereof,
then it is an act jure imperii, especially when it is not undertaken for
gain or profit.

In the case at bench, if petitioner has bought and sold lands in the
ordinary course of a real estate business, surely the said transaction
can be categorized as an act jure gestionis. However, petitioner has
denied that the acquisition and subsequent disposal of Lot 5-A were
made for profit but claimed that it acquired said property for the site

8
 of its mission or the Apostolic Nunciature in the Philippines. Private
respondent failed to dispute said claim.

Lot 5-A was acquired by petitioner as a donation from the Archdiocese

of Manila. The donation was made not for commercial purpose, but
for the use of petitioner to construct thereon the official place of
residence of the Papal Nuncio. The right of a foreign sovereign to
acquire property, real or personal, in a receiving state, necessary for
the creation and maintenance of its diplomatic mission, is recognized
in the 1961 Vienna Convention on Diplomatic Relations (Arts. 20-22).
This treaty was concurred in by the Philippine Senate and entered into
force in the Philippines on November 15, 1965.

The decision to transfer the property and the subsequent disposal

thereof are likewise clothed with a governmental character. Petitioner
did not sell Lot 5-A for profit or gain. It merely wanted to dispose off
the same because the squatters living thereon made it almost
impossible for petitioner to use it for the purpose of the donation.
The fact that squatters have occupied and are still occupying the lot,
and that they stubbornly refuse to leave the premises, has been
admitted by private respondent in its complaint, Private respondent is
not left without any legal remedy for the redress of its grievances.
Under both Public International Law and Transnational Law, a person
who feels aggrieved by the acts of a foreign sovereign can ask his own
government to espouse his cause through diplomatic channels.

Private respondent can ask the Philippine government, through the

Foreign Office, to espouse its claims against the Holy See. Its first task
is to persuade the Philippine government to take up with the Holy See
the validity of its claims. Of course, the Foreign Office shall first make
a determination of the impact of its espousal on the relations
between the Philippine government and the Holy See (Young,
Remedies of Private Claimants Against Foreign States, Selected
Readings on Protection by Law of Private Foreign Investments 905,
919 [1964]). Once the Philippine government decides to espouse the
claim, the latter ceases to be a private cause.

3) Colonies and dependencies

9
 A dependent territory, dependent area, or dependency (sometimes
referred as an external territory) is a territory that does not possess full
political independence or sovereignty as a sovereign state yet remains
politically outside the controlling state's integral area.

4) Territories under International Control or Supervision

The trusteeship system, like the mandate system, was established on the
premise that colonial territories taken from countries defeated in war
should not be annexed by the victorious powers but should be
administered by a trust country under international supervision until
their future status was determined.

5) The United Nations

The principal international organization is the United Nations. It came
into being on October 24,1945, when the UN Charter came into force.
The membership now includes almost all the world’s independent
nations.

a) The United Nations Charter

The Charter of the United Nations is the founding document of the
United Nations. The UN Charter codifies the major principles of
international relations, from sovereign equality of States to the
prohibition of the use of force in international relations.

b) Membership

Rule 134. Application

Any State which desires to become a Member of the United Nations
shall submit an application to the Secretary-General. Such application
shall contain a declaration, made in a formal instrument, that the
State in question accepts the obligations contained in the Charter.

Rule 135. Notification of applications

The Secretary-General shall, for information, send a copy of the
application to the General Assembly, or to the Members of the
United Nations if the Assembly is not in session.

10
 Rule 136. Consideration of applications and decision thereon
If the Security Council recommends the applicant State for
membership, the General Assembly shall consider whether the
applicant is a peace-loving State and is able and willing to carry out
the obligations contained in the Charter and shall decide, by a two-
thirds majority of the members present and voting, upon its
application for membership.

Rule 137. Consideration of applications and decision thereon

If the Security Council does not recommend the applicant State for
membership or postpones the consideration of the application, the
General Assembly may, after full consideration of the special report
of the Security Council, send the application back to the Council,
together with a full record of the discussion in the Assembly, for
further consideration and recommendation or report.

Rule 138. Notification of decision and effective date of membership

The Secretary-General shall inform the applicant State of the decision
of the General Assembly. If the application is approved, membership
shall become effective on the date on which the General Assembly
takes its decision on the application.

c) Organs
The United Nations has six principal organs: the General Assembly,
the Security Council, the Economic and Social Council, the Trusteeship
Council, the International Court of Justice, and the Secretariat.

General Assembly
The only body in which all UN members are represented, the General
Assembly exercises deliberative, supervisory, financial, and elective
functions relating to any matter within the scope of the UN Charter.
Its primary role, however, is to discuss issues and make
recommendations, though it has no power to enforce its resolutions
or to compel state action. Other functions include admitting new
members; selecting members of the Economic and Social Council, the
nonpermanent members of the Security Council, and the Trusteeship
Council; supervising the activities of the other UN organs, from which

11
the Assembly receives reports; and participating in the election of
judges to the International Court of Justice and the selection of the
secretary-general. Decisions usually are reached by a simple majority
vote. On important questions, however—such as the admission of
new members, budgetary matters, and peace and security issues—a
two-thirds majority is required.

Security Council
The UN Charter assigns to the Security Council primary responsibility
for the maintenance of international peace and security. The Security
Council originally consisted of 11 members—five permanent and six
nonpermanent—elected by the General Assembly for two-year
terms. From the beginning, nonpermanent members of the Security
Council were elected to give representation to certain regions or
groups of states. As membership increased, however, this practice
ran into difficulty. An amendment to the UN Charter in 1965 increased
the council’s membership to 15, including the original five permanent
members plus 10 nonpermanent members. Among the permanent
members, the People’s Republic of China replaced the Republic of
China (Taiwan) in 1971, and the Russian Federation succeeded the
Soviet Union in 1991. After the unification of Germany, debate over
the council’s composition again arose, and Germany, India, and Japan
each applied for permanent council seats.

Economic and Social Council

Designed to be the UN’s main venue for the discussion of
international economic and social issues, the Economic and Social
Council (ECOSOC) directs and coordinates the economic, social,
humanitarian, and cultural activities of the UN and its specialized
agencies. Established by the UN Charter, ECOSOC is empowered to
recommend international action on economic and social issues;
promote universal respect for human rights; and work for global
cooperation on health, education, and cultural and related areas.
ECOSOC conducts studies; formulates resolutions, recommendations,
and conventions for consideration by the General Assembly; and
coordinates the activities of various UN programs and specialized
agencies. Most of ECOSOC’s work is performed in functional

12
commissions on topics such as human rights, narcotics, population,
social development, statistics, the status of women, and science and
technology; the council also oversees regional commissions for
Europe, Asia and the Pacific, Western Asia, Latin America, and Africa.

Trusteeship Council
The Trusteeship Council was designed to supervise the government
of trust territories and to lead them to self-government or
independence. The trusteeship system, like the mandate system
under the League of Nations, was established on the premise that
colonial territories taken from countries defeated in war should not
be annexed by the victorious powers but should be administered by a
trust country under international supervision until their future status
was determined. Unlike the mandate system, the trusteeship system
invited petitions from trust territories on their independence and
required periodic international missions to the territories. In 1945 only
12 League of Nations mandates remained: Nauru, New Guinea,
Ruanda-Urundi, Togoland and Cameroon (French administered),
Togoland and Cameroon (British administered), the Pacific Islands
(Carolines, Marshalls, and Marianas), Western Samoa, South West
Africa, Tanganyika, and Palestine. All these mandates became trust
territories except South West Africa (now Namibia), which South
Africa refused to enter into the trusteeship system.

International Court of Justice

The International Court of Justice, commonly known as the World
Court, is the principal judicial organ of the United Nations, though the
court’s origins predate the League of Nations. The idea for the
creation of an international court to arbitrate international disputes
arose during an international conference held at The Hague in 1899.
This institution was subsumed under the League of Nations in 1919 as
the Permanent Court of International Justice (PCIJ) and adopted its
present name with the founding of the UN in 1945.

Secretariat
The secretary-general, the principal administrative officer of the
United Nations, is elected for a five-year renewable term by a two-

13
 thirds vote of the General Assembly and by the recommendation of
the Security Council and the approval of its permanent members.
Secretaries-general usually have come from small, neutral countries.
The secretary-general serves as the chief administrative officer at all
meetings and carries out any functions that those organs entrust to
the Secretariat; he also oversees the preparation of the UN’s budget.
The secretary-general has important political functions, being
charged with bringing before the organization any matter that
threatens international peace and security.

6) Belligerent communities
Insurgent groups which satisfy the material field of application of
Protocol II may be regarded as “para-statal entities possessing definite if
limited form of international personality.” State practice indicates two
specific attributes of such “personality.” First, they are recognized as
having belligerent status against the de jure government. Other states
are therefore required to maintain neutrality regarding them. Second,
they are seen as having treaty making capacity.

7) International administrative bodies

Aside from the main organs of the UN, there are also specialized
agencies. Some of these are: the United Nations Educational, Scientific
and Cultural Organization (UNESCO). The International Civil Aviation
Organization (ICAO), the World Health Organization (WHO), the Food
and Agricultural Organization (FAO), the World Bank and the
International Monetary Fund (IMF).

a) Reparation Suffered in the Service of the United Nations (1949)

Because of the assassination in September 1948, in Jerusalem, of

Count Folke Bernadotte, the United Nations Mediator in Palestine,
and other members of the United Nations Mission to Palestine, the
General Assembly asked the Court whether the United Nations had
the capacity to bring an international claim against the State
responsible with a view to obtaining reparation for damage caused to
the Organization and to the victim. If this question were answered in
the affirmative, it was further asked in what manner the action taken

14
 by the United Nations could be reconciled with such rights as might
be possessed by the State of which the victim was a national. In its
Advisory Opinion of 11 April 1949, the Court held that the Organization
was intended to exercise functions and rights which could only be
explained on the basis of the possession of a large measure of
international personality and the capacity to operate upon the
international plane. It followed that the Organization had the capacity
to bring a claim and to give it the character of an international action
for reparation for the damage that had been caused to it. The Court
further declared that the Organization can claim reparation not only in
respect of damage caused to itself, but also in respect of damage
suffered by the victim or persons entitled through him. Although,
according to the traditional rule, diplomatic protection had to be
exercised by the national State, the Organization should be regarded
in international law as possessing the powers which, even if they are
not expressly stated in the Charter, are conferred upon the
Organization as being essential to the discharge of its functions. The
Organization may require to entrust its agents with important
missions in disturbed parts of the world. In such cases, it is necessary
that the agents should receive suitable support and protection. The
Court therefore found that the Organization has the capacity to claim
appropriate reparation, including also reparation for damage suffered
by the victim or by persons entitled through him. The risk of possible
competition between the Organization and the victim’s national State
could be eliminated either by means of a general convention or by a
particular agreement in any individual case.

8) Individuals
In the early development of international law human beings were
exclusively under the control of states. In international law they were
objects or at best “beneficiaries” of international law. With the greater
global awareness of human rights individuals have now come to be
recognized as possessing albeit limited rights and obligations in
international law.

Among the obligations of individuals are those arising from the

regulation of armed conflicts. Violation of these rules can place

15
individuals under criminal responsibility. There are also rules on
international crimes to which individuals are subject such as crimes
against humanity, genocide, aggression, and terrorism.
When individual rights are violated, however, individuals still have to rely
on the enforcement power of states. But some treaties have provided
for the right of individuals to petition international bodies alleging that a
contracting state has violated some of their human rights.

16