Republic of the Philippines

Western Mindanao State University

COLLEGE OF LAW

PUBLIC INTERNATIONAL LAW

COURSE OUTLINE

III. Subjects of International Law

A. Individual as a Subject or Object of International Law

Distinction between SUBJECT and OBJECT of international law.

1. Subjects and objects of international law.

A subject is an entity that has rights and responsibilities under international law; it can be a proper party in
transactions involving the application of the law of nations among members of the international community.

An object is a person or thing vested with rights in respect of which rights are held and obligations assumed
by the subject; it is not directly governed by the rules of international law; its rights are received, and its
responsibilities imposed, indirectly through the instrumentality of an international agency.

2. The subjects of international law are: states, colonies and dependencies, mandates and trust territories, the
Holy See (Vatican City), the United Nations, belligerent-communities, international administrative bodies, and,
to a certain extent, individuals. As a general rule, only states can be a subject of international law.
--------------------------------------------------------- (REFERENCE FOR LETTER B)
Doctrine of State Responsibility. A State is under obligation to make reparations to another State for the failure to fulfill
its primary obligation to afford, in accordance with international law, the proper protection due to the alien national of
the latter State. The State may, therefore, be held liable for injuries and damages sustained by the alien while in the
territory of the State if:
1. The act or omission constitutes an international delinquency. The treatment of the alien should amount to an
outrage, to bad faith, willful neglect of duty, o insufficiency of governmental action, such that every reasonable and
impartial ma would readily recognize its insufficiency or inadequacy accepted in modern civilization. Execution of an
alien without trial is considered a falling below the international standard of justice.
i) Where the laws of the State fall below the international standard, is no defense that such laws are applicable not
only to aliens but to nationals, as well. In such a case, the doctrine of equality of treatment ( requires that all persons
be treated equally before the law, without discrimination.) does not apply.
ii) The independence of the courts of the State is an accepted canon of civilized governments, and unless the
misconduct is extremely gross, the latter does not lightly hold a State responsible for any error committed by the
Courts, e.g Flor Contemplacion case.

2. The act or omission is directly or indirectly imputable to the State, Even when the laws of the State conform to the
international standard of justice, the act or omission causing damage to the alien may be indirectly imputable to the
State the latter does not make reasonable efforts to prevent injury to the alien, or having done so unsuccessfully, fails
to repair such injury. The act or omission which w give rise to liability may either be:
a) Acts of Government Officials. Acts of primary agents of the State, e.g head of State are 'acts of State”, which will
give rise to direct state responsibility Acts of high administrative officials within the sense of their authority are also ac
of State which could give rise to liability. Where the officer acts beyond the scope o his authority, his act is likened to
an act of a private individual. For acts of a mino or subordinator official to give rise to liability, there must be a denial of
justice o something which indicates complicity of the State in. or condonation of, the origin wrongful act, such as an
omission to take disciplinary action against the wrongdoe
b) Acts of private individuals. For the State to be held responsible, it mus be shown that there was actual or tacit
complicity of the government in the ac before or after it, either by directly ratifying or approving it, or in the patent o
manifest negligence in taking measures to prevent injury, investigate the cas punish the guilty, or to enable the victim
to pursue his civil remedies against th offender. The claimant has the burden of proving such negligence.
3. Injury to the claimant State indirectly because of damage
a) International Standard of Justice. The standard of the “reasonabl State", which means reasonable according to
ordinary means and notions

B. Individual Responsibility in International Law

- breaches of ML entail individual responsibility, while in IL there is collective responsibility.
- Art. 25 of the ICC states that:
Individual criminal responsibility
1. The Court shall have jurisdiction over natural persons pursuant to this Statute.
2. A person who commits a crime within the jurisdiction of the Court shall be individually responsible and
liable for punishment in accordance with this Statute.
 - “The idea that individuals who commit international crimes are internationally accountable for they has
now become an accepted part of international law. Problems in this area — such as the non-existence of
any standing in international tribunal to have jurisdiction over such crimes, and the lack of agreement as
to what acts are internationally criminal for this purpose— have not affected the general acceptance of the
principle of individual responsibility for international criminal conduct.”
Later, at p. 84, he said: “It can no longer be doubted that as a matter of general customary international
law a head of state will personally be liable to be called to account if there is sufficient evidence that he
authorized or perpetrated such serious international crimes.”
- Individuals or groups can commit human rights violations and can be held liable for such. The individual
responsibility for human rights violations committed by private persons are treated and punished under
the criminal law system. For this to happen, the act or omission must be defined and penalized under an
existing domestic law, otherwise the defendant could not be held liable to it. Nulla poena sine lege (there
is no crime when there is no law punishing for it)
Hence, it is necessary that:
a. The State, through its law-making body, must enact the appropriate laws to criminalize the human
rights violations;
b. The State, through is judiciary, must provide adequate judicial remedies.

C. Command Responsibility – Landmark case of YAMASHITA VS STYLER

Doctrine: The offender can be made to answer for his act, as well as his inaction, when such act or inaction
results in human rights violation. The failure of a superior officer to stop the human rights violations committed
by his subordinates, absent in showing that he directly ordered the commission of such acts, could make him
still liable as well as such acts.
Elements:
1. Effective command control of the superior over his subordinates;
2. MENS REA (has known or must have known the acts of his subordinates)
3. Failure to take the reasonable and necessary steps to prevent, stop or report the acts committed.

D. International Protection of Human Rights

- Universal Declaration of Human Rights recognizes not only the civil and political rights of a person but
also his economic rights, and cultural rights.
- Bill of rights as embodied in the Philippine Constitution
- International human rights law lays down obligations which States are bound to respect. By becoming
parties to international treaties, States assume obligations and duties under international law to respect, to
protect and to fulfil human rights.

E. States a. Definition b. Elements c. Creation

1. Defined.
- A state is a group of people, living together in a fixed territory, organized for political ends under an
independent government, and capable of entering into international relations with other states.

Art. 1, Montevideo Convention on the 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; and
d) capacity to enter into relations with other states

2. Elements:

a) People.
A group of individuals, of both sexes, living together as a community. They must be sufficient in number to
maintain and perpetuate themselves. A casual gathering (stranded), or a society of pirates would not
constitute a state.

b) Territory. The fixed portion on the earth’s surface occupied by the inhabitants. It may be as large as China
(3.6 million sq. miles), or as small as Monaco (1/2 sq. mile) or San Marino (38 sq. miles).

c) Government. Must be organized, exercising control over and capable of maintaining law and order within
the territory. It can be held internationally responsible for the acts of the inhabitants. The identity of the state is
not affected by changes in government.
 d) Independence or Sovereignty. Freedom from outside control in the conduct of its foreign (and internal)
affairs.

Sovereignty is the right to exercise in a definite portion of the globe the functions of a State to the exclusion
of another state.

-maintenance of order in the society

-security
-protection, conservation and development
-governance, etc.

Sovereignty in the relations between states signifies independence. The development of the national
organization of States during the last few centuries, and as a corollary, the development of international law,
have established this principle of exclusive competence of the State in regard to its own territory in such a
way as to make it the point of departure in settling most questions that concern international relations.

From the standpoint of the national legal order, state sovereignty is the supreme legal authority in relation to
subjects within its territorial domain. This is the traditional context in referring to sovereignty as “absolute”.

However, in the international sphere, sovereignty realizes itself in the existence of a large number of
sovereignties, such that there prevails in fact co-existence of sovereignties under conditions of independence
and equality.

The sovereignty of one state ends where the sovereignty of another state begins.

That limitation is built into the nature of state sovereignty under international law.

State’s existence in the context of the co-existence of other sovereignties.

3. Other suggested elements of a state are:

a) Civilization – usually made up of different cities, with certain characteristics of cultural and technological
development.

b) Recognition.

-The act by which a state acknowledges the existence of another state, a government or a belligerent
community, and indicates its willingness to deal with the entity as such under international law.

A new state is born from an existing State or an old State which disappeared and comes with a new name or
by splitting an existing State into two States. DOCTRINE OF CLEAN SLATE STATE

If a new state enjoys certain rights, privileges and obligations then it must get recognition as a state, which is
very essential.

However, there are some minimum criteria required before a State is considered to be a State.

Political thought plays an important role in this decision whether to grant recognition or not.

Essentials of Recognition of a State

-Population;
-Territory;
-Government;
-Sovereignty;
-Control should tend towards permanency.

If these conditions are fulfilled, then the State can be recognized.

Process of Recognition

-State is not only an institution with international legal standing but they are the primary subjects of
International Law and possess the greatest range of rights and obligations.

-States are not bound to recognise new claimants of Statehood and make it a positive duty to recognize a
State.
-Recognition is mainly a matter of intention.

i) Theories on Recognition:

ia) Constitutive (Minority view): RECOGNITION IS COMPULSORY

Recognition is the act which constitutes the entity into an international person.

Under this view, recognition is compulsory and legal; it may be compelled once the elements of a
state are established.

ib) Declarative (Majority view): RECOGNITION IS DISCRETIONARY

Under the majority view, recognition merely affirms an existing fact, like the possession by the state of
the essential elements. It is discretionary and political.

ii) Basic Rules on Recognition:

It is a political act and mainly a matter of policy on the part of each state; it is discretionary on the part
of the recognizing authority; and it is exercised by the political (executive) department of the state.
Thus, the legality and wisdom of recognition is not subject to judicial review.

iii) Requirements for Recognition of Government:

-The government is stable and effective, with no substantial resistance to its authority;

-the government must show willingness and ability to discharge its international obligations;

-and the government must enjoy popular consent or approval of the people.

iiia). Tobar/Wilson Doctrine:

-precludes recognition of any government established by revolutionary means until constitutional

reorganization by free election of representatives.

The doctrine was first expressed in a treaty concluded in 1907 by Central American republics at the
suggestion of Foreign Minister Tobar of Ecuador and was reiterated by President Woodrow Wilson of
the United States in a public statement made 1913.
Example

The Baltic State

Latvia, Lithuania and Estonia were recognized as independent states in the early 1920's. The United
States, announced its de jure recognition on 28 July 1922 after noting `the successful maintenance
within their borders of political and economic stability' by the governments of the three Baltic
states.

iiib) Stimson Doctrine: No recognition of a government established through external aggression.

It was “incumbent upon the members of the League of Nations not to recognize any situation, treaty or
agreement which may be brought about by means contrary to the Covenant of the League of Nations
or to the Pact of Paris.”

iiic) Estrada Doctrine: Since recognition has been construed as approval (and non-recognition,
disapproval) of a government established through a political upheaval, a state may not issue a
declaration giving recognition to such government, but merely accept whatever government is in
effective control without raising the issue of recognition.

Dealing or not dealing with the government is not a judgment on the legitimacy of the said
government.

It claims that foreign governments should not judge positively or negatively the governments or
changes in government of other states, as such an action would imply a breach of state sovereignty.
 The policy was said to be based on the principles of non-intervention, peaceful resolution of disputes
and self-determination of all nations.

iv) Kinds of Recognition. May be express or implied: may also be: PAGE 107 OF SARMIENTO FOR
ANNOTATION

iva) De facto (as of the fact): Extended by the recognizing state which believes that some of the
requirements for recognition are absent; treatment of entity as a state without extending recognition;
provisional, recognizing state offers for the time being to enter into relations without cordiality and
usual courtesies of diplomacies; a government is in control but illegally so; commonly utilized when
there exists unstable circumstances.

The recognition is generally provisional and limited to certain juridical relations; it does not bring about
full diplomatic intercourse and does not give title to assets of the state held/situated abroad.

ivb) De jure (as of the law): Extended to a government fulfilling the requirements for recognition.
When there is no specific indication, recognition is generally considered as de jure; government is
lawfully in power even though it retains little actual power.

The recognition is relatively permanent; brings about full diplomatic intercourse and observance of
diplomatic immunities; and confers title to assets abroad.

Difference between De Facto and De Jure Recognition

v) Effects of Recognition:

-Diplomatic relations;
-right to sue in the courts of the recognizing state;
-immunity from jurisdiction;
-entitlement to property within the recognizing state;
-retroactive validation of the acts of the recognized state/ government, such as acts of state, and thus,
sovereign immunity covers past, present and future acts.

vi) Recognition of Belligerency; Conditions.

Belligerent Community – group of levels under an organized civil government who have taken up
arms against the legitimate government; when recognized it is considered as a separate state.

The usual conditions for the recognition of the status of belligerency are:

-organized civil government having control and supervision over the armed struggle;
-serious and widespread struggle with the outcome uncertain;
-occupation of a substantial portion of the national territory;
-and willingness on the part of the rebels to observe the rules/ customs of war.

[Note: (1) Absence of any of the foregoing conditions will result merely in insurgency which is rarely
recognized.
 (2) Recognition may be either express or implied; the proclamation by the parent state of a blockade
of a port held by the rebels is implied recognition of belligerency; so is the proclamation of neutrality
by a third state.

vii) Effects of Recognition of Belligerency.

-Responsibility for acts of 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;

-third states recognizing the belligerency shall maintain neutrality; and

-recognition is only provisional (for the duration of the armed struggle) and only for the purpose of the
hostilities.

4. Creation of States. By revolution, unification, secession, assertion of independence, agreement and attainment of
civilization; distinct and separate international personality.

5. Extinction of States. By extinction or emigration en masse of its population, loss of territory, overthrow of
government resulting in anarchy.

6. Principle of State Continuity. The state continues as a juristic being notwithstanding changes in its
circumstances, provided only that such changes do not result in the loss of any of its essential elements .

a) Succession of States.

-State succession takes place when one state assumes the rights and some of the obligations of
another because of certain changes in the condition of the latter. This holds true in the event that a
state is extinguished or is created. (Cruz, 2000)

-It is the replacement of one State by another in the responsibility for the international relations of
territory. (Art. 2(b), Vienna Convention on Succession of States in respect of Treaties)

-A succession of States does not as such affect: (a) a boundary established by a treaty; or (b)
obligations and rights established by a treaty and relating to the regime of a boundary. (Art. 11(a)(b),
Vienna Convention on Succession of States in respect of Treaties)

-May be universal (dissolution of Czechoslovakia = Czech Republic and Slovakia) when one State
completely absorbs the international personality of another State and thereby becomes the sole
representative at law of the rights and obligations of the latter State;

or partial (separation of Pakistan from India; separation of Bangladesh from Pakistan) when an
existing State takes over whether by force or voluntary cession, the sovereignty of a portion of territory
formerly belonging to another State or when a new State is formed by breaking off from the latter
state;

-‘the replacement by one State by another in the responsibility for the international relations of
territory.’

-Consequences are: political laws are abrogated while municipal laws remain in force;

-treaties are discontinued, except those dealing with local rights and duties, such as those
establishing easements and servitudes;

All rights of the predecessor state are inherited, but successor state can assume and reject liabilities
at its discretion.

Rules on State Succession

1. As to territory – The capacities, rights and duties of the predecessor State with respect to that
territory terminate and are assumed by the successor State. (Bernas, 2009)

2. As to State property – The agreement between the predecessor and the successor State govern;
otherwise:
 a. Where a part of the territory of a State becomes part of the territory of another State,
property of the predecessor State located in that territory passes to the successor State;
b. Where a State is absorbed by another State, property of the absorbed State, wherever
located, passes to the absorbing State; or
c. Where a part of a State becomes a separate State, property of the predecessor State
located in the territory of the new State passes to the new State. (Bernas, 2009)

3. As to public debts – the agreement between predecessor and successor State govern;
otherwise:
a. Where a part of the territory of a State becomes part of the territory of another State, local
public debt and the rights and obligations of the predecessor State under contracts relating to
that territory are transferred to the successor State;
b. Where a State is absorbed by another State, public debt and the rights and obligations
under contracts of the absorbed State pass to the absorbing State;
c. Where a part of a State becomes a separate State, local public debt and the rights and
obligations of the predecessor State under contracts relating to that territory are transferred to
the successor State. (Bernas, 2009)

4. As to treaties
a. When part of the territory of a State becomes the territory of another State, the international
agreements of the predecessor State cease to have effect in respect of the territory and
international agreements of the successor State come into force there. (Bernas, 2009)

NOTE: “Moving Treaty or Moving Boundaries” Rule – A third State may seek relief from the
treaty on ground of rebus sic stantibus. When a State is absorbed by another State, the
international agreements of the absorbed State are terminated, and the international
agreements of the absorbing
State become applicable to the territory of the absorbed State. (Bernas, 2009)

NOTE: “Moving Treaty or Moving Boundaries” Rule may apply.

a. When a part of a State becomes a new State, the new State does not succeed to the
international agreements to which the predecessor State was a party, unless, expressly or by
implication, it accepts such agreements and the other party or parties thereto agree or
acquiesce; or,
b. Pre-existing boundary and other territorial agreements continue to be binding
notwithstanding (Uti possidetis rule). (Bernas, 2009)

b) Succession of Governments. There is succession of government where one government replaces

another either peacefully or by violent methods. The integrity of the State is not affected; the state
continues as the same international person except that its lawful representative is changed.

The consequences are:

-all rights of the predecessor government are inherited by the successor;

-and where the new government was organized by virtue of constitutional reform duly ratified in a
plebiscite, all obligations of the predecessor are likewise assumed;

However, where the new government is established through violence, the new government may lawfully
reject purely personal or political obligations of the predecessor, but not those obligations contracted by it
in the ordinary course of official business.

Effects of a Change of Government

1. If the change is peaceful, the new government assumes the rights and responsibilities of the old
government.
2. If the change was effected through a violence, a distinction must be made.
a. Acts of political complexion may be denounced; and,
b. Routinary acts of mere governmental administration continue to be effective.

7. Classes of States.

a) Independent. Has freedom to direct and control foreign relations without restraint from other states. May
be:

i) Simple: Single central government, with power over internal and external affairs.
 ii) Composite: Two or more sovereign states joined together to constitute one international person,
which may be:

iia) Real Union: two or more states are merged under a unified authority so that they form a
single international person through which they act as one entity. The states retain their
separate identities, but their respective international personalities are extinguished and
blended in the new international person. E.g., the former United Arab Republic, with Egypt
and Syria.

iib) Federal Union: combination of two or more states which, upon merger, cease to be
states, resulting in the creation of a new state with full international personality to represent
them in their external relations as well as a certain degree of power over their domestic affairs
and their inhabitants.

Authority over internal affairs: divided between federal authorities and the member-states;

authority over external affairs: handled solely by federal authorities.

b) Dependent: an entity which, although theoretically a state, does not have full freedom in the direction of its
external affairs, such as a protectorate(which is established at the request of the weaker state for the
protection by a strong power, e.g., Panama, Andorra, Monaco) or a suzerainty(which is the result of a
concession from a state to a former colony that is allowed to be independent subject to the retention by the
former sovereign of certain powers over the external affairs of the latter, e.g., Bulgaria and Rumania, both
suzerainties of the Sultan of Turkey by virtue of the Treaty of Berlin of 1878).

c) Neutralized: whose independence and integrity are guaranteed by an international treaty on the condition
that such state obligates itself never to take up arms against any other state (except in self-defense), or to
enter into an international obligation as would indirectly involved it in war, e.g., Switzerland, Austria.

F. The Vatican City and the Holy See

- The Holy See has all the constituent elements of statehood (people: less than 1,000 individuals; territory:
108.7 acres; government with the Pope as head; and independence by virtue of the Lateran Treaty of
February 11, 1929, which constituted the Vatican as a territory under the sovereignty of the Holy See).
- It has all the rights of a state, including diplomatic intercourse, immunity from foreign jurisdiction, etc.
- Vatican City State is the territory of the Holy See (Sancta Sedes), the seat of the episcopal jurisdiction and
the central government of the Catholic Church.
- Although the Vatican City is closely associated with the Holy See, it is distinct from the Holy See. The
Holy See, not the Vatican City, maintains diplomatic relations with other sovereign states and foreign
embassies are accredited to the Holy See, and it is the Holy See that establishes treaties and concordats
governing relations between the Papacy and other entities.
- VATICAN IS A TERRITORY UNDER HOLY SEE. Holy See is a state and Vatican is not[???]

G. Colonies and Dependencies

- A colony is a dependent political community consisting of a number of citizens of the same country who
have migrated therefrom to inhabit another country, but remain subject to the mother State.
- A dependency is a territory distinct from the country in which the supreme sovereign power resides, but
belongs rightfully to it, and subject to the laws and regulations which the sovereign may prescribe.
- [Note: Theoretically, they belong to the parent state and, thus, are without any personality in the
international community. However, on occasions, colonies have been allowed to participate in their own
right in certain international undertakings, e.g., the Philippines was admitted as a signatory to the UN
Charter.
- Building in a new territory, starting a new life on a different territory, they bring their cultures and traditions
from their parent state and start a new life in another state.

H. Territories under International Control or Supervision

Nachura: These are nonself-governing territories which have been placed under international supervision or
control to insure their political, economic, social and educational advancement. An example are mandates,
which were former territorial possessions of the states defeated in World War I and placed under the control of
the League of Nations. Many of these became placed under the mandates trust territories Trusteeship Council
of the United Nations.
1. A condominium is a territory jointly administered by two states.

- International Trusteeship System and Trust Territories

Under Article 77 of the Charter, the International Trusteeship System applied to:
  territories held under mandates established by the League of Nations after the First World War;
 territories detached from "enemy States" as a result of the Second World War; and
 territories voluntarily placed under the System by States responsible for their administration.

- Pursuant to Article 76 of the Charter, the basic objectives of the International Trusteeship System in
accordance with the purposes of the United Nations included: to promote the political, economic, social
and educational advancement of the inhabitants of the Trust Territories and their progressive
development towards self-government and independence; and to encourage respect for human rights and
fundamental freedoms for all and recognition of the interdependence of the peoples of the world.
In order to supervise the administration of the Trust Territories, and to ensure that Governments
responsible for their administration took adequate steps to prepare them for the achievement of the
Charter goals, the United Nations established the Trusteeship Council under Chapter XIII of the Charter.
- There were eleven trust territories under the administration of the UN Trusteeship Council.
Western Samoa
Tanganyika
Rwanda-Urundi
Cameroons under British administration
Cameroons under French administration
Togoland under British administration
Togoland under French administration
New Guinea
Nauru
Strategic Trust Territory/ Trust territory of the Pacific Islands
Italian Somaliland

I. The United Nations

a. Historical Development
a. The League of Nations [considered to have failed in attaining its primary objective of maintaining
international peace and order, especially after the outbreak of World War II].

The predecessor of the United Nations was the League of Nations, founded on January 10, 1920, after World
War I, under the Treaty of Versailles “to promote international cooperation and to achieve peace and
security.”

Despite some early successes, the League of Nationswas not able to prevent World War II.

As of 20 April 1946, the League of Nations ceased to exist, having handed over all of its assets to the United
Nations, and having granted the new UN Secretariat full control of its Library and archives.

https://www.youtube.com/watch?v=ywMlFMEMSL

The UN Charter was signed on 26 June 1945 by representatives of the 50 countries attending the United
Nations Conference on International Organization in San Francisco. Poland, which was not represented,
signed it later and became one of the UN's original 51 Member States.

The United Nations Charteris the treaty that established the United Nations, it was ratified on 24 October
1945.

The following series of events led to the writing of the Charter, and the UN's founding:

1941: The Declaration of St. James Palace

In June 1941, London was the home of nine exiled governments. The great British capital had already
seen 22 months of war and in the bomb-marked city, air-raid sirens wailed all too frequently.
Practically all Europe had fallen to the Axis and ships on the Atlantic, carrying vital supplies, sank with
grim regularity. But in London itself and among the Allied governments and peoples, faith in ultimate
victory remained unshaken. On 12 June 1941 the representatives of Great Britain, Canada, Australia,
New Zealand and the Union of South Africa and other states, met at the ancient St. James’ Palace
and signed a declaration which stated, in part:

“That the only true basis of enduring peace is the willing co-operation of free peoples in a
world in which, relieved of the menace of aggression, all may enjoy economic and social
security; and that it is their intention to work together, and with other free peoples, both in war
and peace to this end.”
1941: The Atlantic Charter

The origin of the Charter of the United Nations can be traced back to the Atlantic Charter, signed on
14 August 1941, by which Franklin D. Roosevelt, President of the United States of America, and
Winston Churchill, Prime Minister of the United Kingdom, made known “certain common principles in
the national policies of their respective countries on which they base their hopes for a better future for
the world”.

This document, in its eighth paragraph, incidentally referred to the future “establishment of a wider
and permanent system of general security”.

1942: The Declaration by United Nations

On 1 January 1942, twenty-six States at war with the Axis Powers, including the United States, the
United Kingdom, China and the Union of Soviet Socialist Republics (USSR), subscribed to the
common programme of purposes and principles embodied in the Atlantic Charter in a document,
which became known as the 'Declaration by United Nations'.

Twenty-one other States adhered to that Declaration at a later date.

The Declaration by United Nations contained the first official use of the term 'United Nations'. The
name 'United Nations' was coined by United States President Franklin D. Roosevelt.

Three years later, when preparations were being made for theSan Francisco Conference, only those
states which had, by March 1945, declared war on Germany and Japan and subscribed to the United
Nations Declaration, were invited to take part.

1943: Moscow and Tehran Conferences

From 18 October to 1 November 1943, a Conference was held in Moscow, with the participation of the
United States, the United Kingdom, the USSR and China. At the conclusion of the Conference, the
participating Governments adopted a Joint Four-Nation Declaration in which, inter alia, they
“recognize[d] the necessity of establishing at the earliest practicable date a general international
organization, based on the principle of the sovereign equality of all peace-loving States, and open
to membership by all such States, large and small, for the maintenance of international peace and
security”.

From 28 November to 1 December 1943, President Roosevelt, Prime Minister Churchill and the
Premier of the USSR, Joseph Stalin, met at a conference in Tehran, where they again confirmed their
common policy, notably expressing their determination that their nations “shall work together in war
and in the peace that will follow”, recognizing “the supreme responsibility resting upon us and
all the United Nations to make a peace which will command the goodwill of the overwhelming
mass of the peoples of the world and banish the scourge and terror of war for many
generations”.

They further announced their intention to “seek the cooperation and active participation of all
nations, large and small, whose peoples in heart and mind are dedicated, as are our own peoples, to
the elimination of tyranny and slavery, oppression and intolerance” within a “world family of
Democratic Nations” (Declaration of the Three Powers, Tehran, 1 December 1943).

1945: Dumbarton Oaks and Yalta

“We are resolved,” the three leaders declared, “upon the earliest possible establishment with our
Allies of a general international organization to maintain peace and security… “We have agreed that a
Conference of United Nations should be called to meet at San Francisco in the United States
on the 25th April, 1945, to prepare the charter of such an organization, along the lines proposed in
the formal conversations of Dumbarton Oaks.”

San Francisco Conference (1945)

Six additional countries were invited: Syria and Lebanon (at the request of France), Argentina, newly-
liberated Denmark, the Byelorussian Soviet Socialist Republic, and the Ukrainian Soviet Socialist
Republic.Thus, delegates from 50 nations gathered in San Francisco.
 https://www.youtube.com/watch?v=FnQESSTouNU

b. UN Charter – a treaty and only a member state is bound

This is the closest to a constitution that basically governs the relations of international persons.
Technically, it is a treaty, a contract which the parties must respect under the doctrine of pacta sunt
servanda, although it actually applies even to non-member States, at least in so far as “may be
necessary for the maintenance of international peace and security”.

It consists of 111 articles, besides the Preamble and the concluding provisions. Annexed to it is the
Statute of the International Court of Justice.

a) Amendment

[i] By a vote of 2/3 of the members of the General Assembly and ratified in accordance with their
respective constitutional processes by 2/3 of the members of the United Nations, including all the
permanent members of the Security Council;

[ii] A general conference, called by a majority vote of the General Assembly and any nine members of
the Security Council, may propose amendments by a 2/3 vote of the conference, and shall take effect
when ratified by 2/3 of the members of the UN, including the permanent members of the Security
Council.

c. Purposes

The principal objectives of the UN are the prevention of war, the maintenance of international
peace and security, the development of friendly relations among the members of the international
community, the attainment of international cooperation, and harmony in the actionsof nations.

d. Membership
a) Classes: Based on the manner of admission, members may be original or elective.

Art. 4, UN Charter

1. Membership in the United Nations is open to all peace-loving states which accept the obligations
contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out
these obligations.

2. The admission of any such state to membership in the United Nations will be effected by a decision of
the General Assembly upon the recommendation of the Security Council.

b) Qualifications: member must be a State, peace loving, accept the obligations under the Charter, and be
able and willing to carry out these obligations.

c) Admission: decision of 2/3 of those present and voting in the General Assembly upon recommendation of
at least nine (including all the permanent) members of the Security Council and 5 permanent members of the
UN? Hence non procedural.

d) Suspension: the same vote required as in admission. When suspended, a member cannot participate in
meetings of the General Assembly; cannot be elected to or continue to serve in the Security Council, the
Economic and Social Council, the Trusteeship Council; but nationals may continue serving in the Secretariat
and the International Court of Justice, although a member is still subject to discharge its obligations under the
Charter. To lift the suspension, a qualified majority vote of the Security Council is needed.

e) Expulsion: 2/3 vote of those present and voting in the General Assembly, upon recommendation of a
qualified majority of the Security Council, on grounds of persistently violating the principles contained in the
Charter.

f) Withdrawal. It was intended that no provision on withdrawal be included in the Charter, although there is
actually no compulsion for continued membership if the member feels constrained to withdraw due to
exceptional circumstances.

On March 1, 1965, Indonesia tried to withdraw in protest over Malaysia’s election as member of the Security
Council, but it appeared later that it was merely a cessation of cooperation, not withdrawal —and the UN
allowed resumption of full membership of Indonesia on September 28, 1966.
e. Organs
i. General Assembly
-Consists of all the members of the organization, each of which is entitled to send not more than 5
representatives and 5 alternates. Each member has only one vote.

The United Nations member states are the 193 sovereign states that are members of the United
Nations (UN) and have equal representation in the UN General Assembly. The UN is the world's
largest intergovernmental organization.

Its functions may be classified into

[i]Deliberative, like initiating studies and making recommendations for the development of
international law, etc.;

[ii] Supervisory, such as receiving and considering annual and special reports from other organs of
the UN;

[iii] Financial, as the consideration and approval of the budget of the organization, the apportionment
of expenses, etc.;

[iv]Elective, as in the election of the non-permanent members of the Security Council, all members of
the EcoSoc, etc.; and

[v] Constituent, such as the admission of members and the amendment of the Charter. Its regular
session is held once a year, and it may hold special sessions called by the Secretary General at the
request of the Security Council or a majority of the members. On important questions, e.g., peace,
security, membership, elections, trusteeship system, budget, the vote of 2/3 of the, members present
and voting is required; on other questions, a simple majority is sufficient. To classify a question as
important, the vote required is a simple ' majority.

ii. Security Council

-It is the key organ in the maintenance of international peace and security. It is composed of five (5)
permanent members, namely: China, France, Russia, the United Kingdom and the United States;
and ten (10) elective members, elected for two-year terms by the General Assembly, five from
African and Asian states, two from Latin American states, two from Western European and other
states, and one from Eastern European states.

For the elective members, no immediate re-election is allowed. The Security Council is expected to
function continuously, and sessions may be called at any time; thus, the representative of the member
states should always be available.

i) Functions. The Security Council has primary responsibility to maintain international peace and
security; investigate disputes and call disputants to settle their differences through peaceful means;
recommend methods of adjustment of disputes; determine the existence of threats to peace, breach
of peace, acts of aggression, and make appropriate recommendations; and to undertake preventive
and enforcement actions;

[ia] Preventive action shall consist of provisional measuresto prevent a conflict from worsening, and
may involve the deployment of peacekeeping and/or observer missions. These missions shall be
established by the Security Council, directed by the Secretary General, with the consent of the host
government; provided that the military observers shall be unarmed, while peace keeping forces
may be armed with light weapons although they are not authorized to use force except in self-
defense, and the operations must not interfere with the internal affairs of the host country. Other
measures may also be undertaken against erring members, such as interruption of economic
relations, communications or diplomatic relations, e.g., the ban, except for humanitarian reasons, on
airflights for Libya because of the bombing of PanAm flight 103.

[ib] Enforcement action may consist in the deployment of air, sea and land forces, or in the institution
of a blockade. Enforcement actions in the past had been usually stymied by the veto power of the
permanent members of the Security Council.

ii) Domestic jurisdiction clause. The Security Council may take such steps as are necessary for the
settlement of disputes, including preventive or enforcement action, as mentioned above. The only
limitation is that the dispute must be international, not domestic, in character. Otherwise, such action
would violate the principle that the UN shall not intervene in any matter within the domestic jurisdiction
of any State.
Art. 32, UN Charter: Any Member of the United Nations which is not a member of the Security
Council or any state which is not a Member of the United Nations, if it is a party to a dispute under
consideration by the Security Council, shall be invited to participate, without vote, in the discussion
relating to the dispute. The Security Council shall lay down such conditions as it deems just for the
participation of a state which is not a Member of the United Nations.

iii) Voting: The Yalta Formula.

Each member of the Security Council shall have one vote, but distinction is made between the
permanent members and the non-permanent members in the resolution of substantive questions.

Procedural matters are to be decided by the affirmative vote of any nine or more members.

Non-procedural matters are decided by the concurrence of at least nine members, including all the
permanent members.

The determination of whether a matter is procedural or substantive is nonprocedural. This

allows for the so-called “double veto” by a permanent member of the Council. However, the
abstention or absence of any permanent member is not considered a “veto”.

Double Veto Power Chapter 2 section 27 of the UN

The existence of the double veto power
1. Preliminary questions
2. Trial on the merits on the matter of w/n non procedural or procedural

iii. Economic and Social Council

-Composed of fifty-four (54) members elected by the General Assembly for a three-year term. It
shall exert efforts towards higher standards of living, conditions of economic and social progress and
development, solutions of international economic, social, health and related problems, universal
respect for and observance of human rights and fundamental freedoms. Decisions are reached by a
simple majority vote.

iv. Trusteeship Council

-Charged with the duty of assisting the Security Council and the General Assembly in the
administration of the International Trusteeship System. It is composed of

[i] members of the UN administering trust territories;

[ii] permanent members of the Security Council not administering trust territories; and

[iii] as many other members elected by the General Assembly as may be necessary to ensure that the
total number of members is equally divided between those members of the UN which administer trust
territories and those which do not. Note that the last trust territory, Micronesia, has since then become
an independent state.

v. The Secretariat – terms renewable for 5 years; afforded with diplomatic immunities
-The chief administrative organ of the UN; headed by the Secretary General who is chosen by the
General Assembly upon recommendation of the Security Council. The Secretary General is the
highest representative of the UN, and is authorized to act in its behalf. He also acts as Secretary in all
meetings of the General Assembly, the Security Council, the Economic and Social Council, and the
Trusteeship Council.

The Secretary General and his staff are international civil servants, and they cannot receive
instructions from any government or source outside the UN. The Secretary General enjoys the right of
political initiative, and may bring to the attention of the UN Security Council any matter which, in his
opinion, may threaten international peace and security.

vi. International Court of Justice

-It is the principal judicial organ of the UN; composed of 15 members who are elected for a term of
nine years by absolute majority vote in the General Assembly and the Security Council, in separate
elections, no two of whom must be nationals of the same state. They must be of high moral
character and possess the qualifications required in their respective countries for appointment to their
highest judicial offices.
 Art. 34, ICJ Statute:

Jurisdiction:
1. Contentious cases
2. Advisory proceedings (has 3 requisites) – no binding force
1. Only States may be parties to cases before the Court.

2. The Court, subject to and in conformity with its Rules, may request of public international
organizations information relevant to cases before it, and shall receive such information presented
by such organizations on their own initiative.

3. Whenever the construction of the constituent instrument of a public international law organization or
of an international convention adopted thereunder is in question in a case before the Court, the
Registrar shall so notify the public international organization concerned and shall communicate to it
copies of all written proceedings.

Art. 35 (2), UN Charter: A state which is not a Member of the United Nations may bring to the
attention of the Security Council or of the General Assembly any dispute to which it is a party if it
accepts in advance, for the purposes of the dispute, the obligations of pacific settlement provided in
the present Charter.

Optional jurisdiction Art 36 (2) of ICJ

Art. 93(2), ICJ Statute: A State which is not a member of the United Nations may become partyto
the Statute of the International Court of Justice on conditions to be determined in each case by the
General Assembly upon the recommendation of the Security Council.

J. International Administrative Bodies - Certain administrative bodies, created by agreement among states, may
be vested with international personality, provided that they are non-political and are autonomous and not
subject to control by any state, e.g., ILO, FAO, WHO.

a. International Law Commission

This was established by the UN General Assembly in 1947 to promote the codification and progressive
development of international law. One of the functions of the Commission is to produce Draft Articles which
may codify certain customary international law or aid in its development.
Among these, of great significance, is the Draft Articles on State Responsibility, which are often considered as
embodying generally customary international law on the matter.

b. Legality of the Threat or Use of Nuclear Weapons Opinion

[WHO Case, ICJ Rep. 1996 66].

The International Court of Justice ruled that it did not have jurisdiction to decide on the request of the World
Health Organization for the former to render an advisory opinion on whether the “use of nuclear weapons by a
State in war or other armed conflict would be a breach of its obligations under international law, including the
WHO Convention”.

a) Unlike States which possess general competence, international organizations are governed by the
principle of specialty, that is, they are invested by the States which create them with powers, the limits of
which are a function of the common interest whose promotion those States entrust to them. In the opinion
of the International Court of Justice, to ascribe to WHO the competence to address the legality of the use of
nuclear weapons would be tantamount to disregarding the principle of specialty, for such competence could
not be deemed a necessary implication of the Constitution of WHO in light of the purposes assigned to it by
the member States.

I. Individuals. Although traditionally, individuals have been considered merely as objects, not subjects, of
international law, they have also been granted a certain degree of international personality under a number of
international agreements, some of which are: [a] UN Charter provision on “faith in fundamental human
rights, dignity and worth of the human person, and in the equal rights of men and women”;

[b] Universal Declaration of Human Rights provision on “the inherent dignity and the equal and inalienable
rights of all members of the human family”;

[c] Some treaties, e.g., the Treaty of Versailles, which confer on individuals the right to bring suit against
States before national or international tribunals;

[d] The need for States to maintain an international standard of justice in the treatment of aliens;
 [e] The Genocide Convention, which condemns the mass extermination of national, ethnic, racial or religious
groups;

[f] The 1930 Hague Convention with its rules to prevent the anomalous condition of statelessness, and
the 1954 Covenant Relating to the Status of Stateless Persons, which grants stateless individuals certain
basic rights; and

[g] The 1950 European Convention on Human Rights and Fundamental Freedoms, which grants private
associations and individuals the right to file complaints before the European Court on Human Rights.

IV. Recognition of States and Governments

A. Recognition of a State: Declaratory or Constitutive
Recognition.

-The act by which a state acknowledges the existence of another state, a government or a belligerent
community, and indicates its willingness to deal with the entity as such under international law.

A new state is born from an existing State or an old State which disappeared and comes with a new name or
by splitting an existing State into two States. DOCTRINE OF CLEAN SLATE STATE

If a new state enjoys certain rights, privileges and obligations then it must get recognition as a state, which is
very essential.

However, there are some minimum criteria required before a State is considered to be a State.

Political thought plays an important role in this decision whether to grant recognition or not.

Essentials of Recognition of a State

-Population;
-Territory;
-Government;
-Sovereignty;
-Control should tend towards permanency.

If these conditions are fulfilled, then the State can be recognized.

Process of Recognition

-State is not only an institution with international legal standing but they are the primary subjects of
International Law and possess the greatest range of rights and obligations.

-States are not bound to recognise new claimants of Statehood and make it a positive duty to recognize a
State.

-Recognition is mainly a matter of intention.

i) Theories on Recognition:

ia) Constitutive (Minority view): RECOGNITION IS COMPULSORY

needs the 4th element before it could be recognized as a state.

Recognition is the act which constitutes the entity into an international person.

Under this view, recognition is compulsory and legal; it may be compelled once the elements of a
state are established.

ib) Declarative (Majority view): RECOGNITION IS DISCRETIONARY

If the 4 elements of the state exists, the state is recognized.

Under the majority view, recognition merely affirms an existing fact, like the possession by the state of
the essential elements. It is discretionary and political.

B. Recognition is a Political Act

 The political act of recognition of a state or government means that the recognizing state is willing to enter
into political and other relations with the recognized state or government, relations of the kind which
normally exist between members of the family of nations.

ii) Basic Rules on Recognition:

It is a political act and mainly a matter of policy on the part of each state; it is discretionary on the part of the
recognizing authority; and it is exercised by the political (executive) department of the state. Thus, the legality
and wisdom of recognition is not subject to judicial review.

iii) Requirements for Recognition of Government:

-The government is stable and effective, with no substantial resistance to its authority;

-the government must show willingness and ability to discharge its international obligations;

-and the government must enjoy popular consent or approval of the people.

iiia). Tobar/Wilson Doctrine:

-precludes recognition of any government established by revolutionary means until constitutional

reorganization by free election of representatives.

The doctrine was first expressed in a treaty concluded in 1907 by Central American republics at the
suggestion of Foreign Minister Tobar of Ecuador and was reiterated by President Woodrow Wilson of
the United States in a public statement made 1913.
Example

The Baltic State

Latvia, Lithuania and Estonia were recognized as independent states in the early 1920's. The United
States, announced its de jure recognition on 28 July 1922 after noting `the successful maintenance
within their borders of political and economic stability' by the governments of the three Baltic
states.

iiib) Stimson Doctrine: No recognition of a government established through external aggression.

It was “incumbent upon the members of the League of Nations not to recognize any situation, treaty or
agreement which may be brought about by means contrary to the Covenant of the League of Nations
or to the Pact of Paris.”

iiic) Estrada Doctrine: Since recognition has been construed as approval (and non-recognition,
disapproval) of a government established through a political upheaval, a state may not issue a
declaration giving recognition to such government, but merely accept whatever government is in
effective control without raising the issue of recognition.

Dealing or not dealing with the government is not a judgment on the legitimacy of the said
government.

It claims that foreign governments should not judge positively or negatively the governments or
changes in government of other states, as such an action would imply a breach of state sovereignty.

The policy was said to be based on the principles of non-intervention, peaceful resolution of disputes
and self-determination of all nations.

C. Recognition: De Facto
D. Recognition: De Jure
Kinds of Recognition. May be express or implied: may also be: PAGE 107 OF SARMIENTO FOR
ANNOTATION

iva) De facto (as of the fact): Extended by the recognizing state which believes that some of the
requirements for recognition are absent; treatment of entity as a state without extending recognition;
provisional, recognizing state offers for the time being to enter into relations without cordiality and
 usual courtesies of diplomacies; a government is in control but illegally so; commonly utilized when
there exists unstable circumstances.

The recognition is generally provisional and limited to certain juridical relations; it does not bring about
full diplomatic intercourse and does not give title to assets of the state held/situated abroad.

ivb) De jure (as of the law): Extended to a government fulfilling the requirements for recognition.
When there is no specific indication, recognition is generally considered as de jure; government is
lawfully in power even though it retains little actual power.

The recognition is relatively permanent; brings about full diplomatic intercourse and observance of
diplomatic immunities; and confers title to assets abroad.

Difference between De Facto and De Jure Recognition

E. The Estrada Doctrine

Estrada Doctrine: Since recognition has been construed as approval (and non-recognition, disapproval) of a
government established through a political upheaval, a state may not issue a declaration giving recognition to
such government, but merely accept whatever government is in effective control without raising the issue of
recognition.

Dealing or not dealing with the government is not a judgment on the legitimacy of the said
government.

It claims that foreign governments should not judge positively or negatively the governments or changes in
government of other states, as such an action would imply a breach of state sovereignty.

The policy was said to be based on the principles of non-intervention, peaceful resolution of disputes and self-
determination of all nations.

Dealing or not dealing with the government established through a political upheaval is not a judgment on the
legitimacy of the said government.

The Estrada Doctrine favored an enclosed view of sovereignty. It claimed that foreign governments
should not judge, for good or bad, governments or changes in governments in other nations, because
it would imply a breach to its sovereignty.

The doctrine that recognition of a government should be based on its de facto existence, rather than on
its legitimacy.

F. Recognition of Insurgency
What is insurgent in international law?
Purely domestic, internal affairs; IAC VS. NIAC; INSURGENCY VS. BELLIGERENT; Insurgency will not reach
Belligerency; IMPORTANT DISTINCTION: SUBSTANTIAL CONTROL OVER THE TERRITORY OF THE
STATE (BELLIGERENT ACT), HOW? CONDUCT OF PACIFIC BLOCKAGE.The term insurgents describes a
group of people who reject the authority of their State's government. 

Are insurgents subjects of international law?

International law treats insurgencies and civil wars in the internal affairs falling within the domestic
jurisdiction of the State concerned and it is up to municipal law enforcement to deal with it.
 Belligerency is the treatment to Consider a civil war as a real war between two rival Powers by other existing
States. The recognition by the existing States of the rebels in case of civil war in a belligerent State is said to
be recognition of belligerency.

When a State goes in a State of belligerency where the rebels have a Considerable Control over a Substantial
territory of nation, the rebels may be recognized by the existing State. Such recognition is said to be
recognition of belligerency.

Insurgency can be considered to be of a more serious nature than rebellion. Unfortunately, as with the
rebellion, the traditional international law provides no precise definition of the insurgency, and this leaves a lot
of confusion around this topic. There are two schools of thought as to the status of insurgents under
international law. Some scholars, such as Higgins and Greenspan are of the view that the granting of the
status of "insurgents" in a group leads them outside the jurisdiction of municipal law and brings them into the
purview of international law, while others are as Castren review that the status of insurgency does not confer
any rights or obligations on the group and they are still subject to the municipal criminal law. However, there
seems to be the case that the status of the insurgency group brings them out the exclusive domain of national
law, thus giving them a status of quasi-international law.

While the precise definition of the insurgency is unclear, it seems to be the case that the insurgency is a type
of civil disturbance which usually is confined to a limited area of the territory of the State and with the support
of a minimum of section of the people in the State.10 An analysis of the law relating to the insurgency leads to
the conclusion that certain characteristics must attach to the rebels so they can be recognized as insurgents.

The Conditions for recognition of insurgents

Some essential conditions for recognition of insurgency can be listed as follows:
a) The insurgents need to have control over a considerable part of the territory;
b) Most of the people living in the territory must support the rebels for their own accord and not as a result of
the enforcement actions taken by the insurgents;
 c) The insurgents must be able and willing to comply with international obligations.

Much scholarly attention has focused on the rights and obligations of the insurgents, but as Wilson points out,
there seems to be general agreement that the rights of the insurgents are limited to the territorial limits of the
State concerned. For example, through the International Committee of the Red Cross (ICRC)., Insurgents are
allowed to enter the arrangements for humanitarian protection and other general agreements. However, there
is also another other point of view that other rights such as the right of blockade, which bind the belligerents,
in fact, do not bind the insurgents. Thus, insurgency could be seen to partially internationalize a conflict / are
billion without being fully given the status of belligerency. Thus insurgency is a status of potential belligerency.

G. Recognition of Belligerency
Recognition of Belligerency; Conditions.

Belligerent Community – Civil war, international laws will apply; rebels need to have control
over a substantial territory of a state that government entities need permission to enter on the
same; group of levels under an organized civil government who have taken up arms against the
legitimate government; when recognized it is considered as a separate state.

The usual conditions for the recognition of the status of belligerency are:

-organized civil government having control and supervision over the armed struggle;
-serious and widespread struggle with the outcome uncertain;
-occupation of a substantial portion of the national territory;
-and willingness on the part of the rebels to observe the rules/ customs of war.

[Note: (1) Absence of any of the foregoing conditions will result merely in insurgency which is rarely
recognized.

(2) Recognition may be either express or implied; the proclamation by the parent state of a blockade
of a port held by the rebels is implied recognition of belligerency; so is the proclamation of neutrality
by a third state.
Effects of Recognition of Belligerency.

-Responsibility for acts of 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;

-third states recognizing the belligerency shall maintain neutrality; and

-recognition is only provisional (for the duration of the armed struggle) and only for the purpose of the
hostilities.

Belligerency is the final category of a challenge to the established government, recognized by customary
international law, and implies a more serious conflict than any rebellion or insurgency. It is also a concept
more clearly defined in international law than any of the other categories of conflict. The recognition of
belligerency formalizes the rights and obligations of all parties in a war. It is “the acknowledgement of a legal
fact that there exists a state of hostilities between the two groups vying for power or authority; it is ... the
recognition of the existence of war.” However, certain conditions needs to be attached for a conflict to happen
so that it can attain the status of belligerency.

The Conditions for Recognition of belligerency are as follows:

1) There should exist within the state a status of armed conflict
2) The insurgents must administer and occupy a major portion of national territory
3) The hostilities must be conducted in accordance with the rules of war and through organized armed forces
acting under a responsible authority.
4) There must exist certain circumstances which make it necessary for outside states to define their attitude
by means of recognition of belligerency. This recognition of belligerency as a specific institution as we are
aware of it today probably originated in the first quarter of the nineteenth century, when text-writers began to
discuss the status granted by the British and U.S. governments to the nasty Spanish colonies. While the
situation in the recognition of belligerency is defined more specifically as that of rebellion or insurgency, there
is still some amount uncertainty and vagueness surrounding this topic. The rights and duties of belligerents
are however, clearer, and as recognition of belligerency gives insurgent’s rights and duties under international
law similar to those of the States. "The belligerent becomes a subject of international law when a group
becomes a subject of international law. This leads to the belligerents acquiring some, but not all, of the rights
and obligations of States. This includes the rights and obligations of international humanitarian law.
Recognition of belligerency may be awarded by one of the 'parent state’ or a ‘third state’. In traditional
international law the recognition of the state of belligerency confers a very little advantage on the third state.
The reasons for recognizing the belligerency by third states, McDougal and Riesman states that: “One of the
obvious reason could be that the recognizing state, indeed, support the purpose for which the rebels were
fighting. Self-interest and political motives mostly form the basis on which the state practice has historically
been built.”

LEGAL CONSEQUENCES OF RECOGNITION TO THE BELLIGRENTS

1.      One of the legal consequences of the recognition is that the laws and customs of war can be applied to
belligerents and the legitimate government. It includes Protection of civilians against internal armed conflicts
and Provision of rights to the belligerent’s soldiers against each other.
2.      The protection and security of civilians against internal armed conflicts is dealt by the Additional Protocol
II to the Geneva Conventions of 1949, of 1977. This convention sets standard regulations prohibiting the
belligerents of intentionally causing civilian casualties on the other side.
3.      Using poisoned weapons on arms as projectiles that cause suffering are prohibited. The Red Cross
Conventions provides for protection of medical relief personnel ships and aircraft for any loss of life or
property.
4.      Article 4 of The Geneva prisoners of war convention, 1949, provides that troops of organized resistance
movements are entitled to be treated as ‘prisoners of war’ if they are well commanded, have a fixed distinctive
signal recognizable at a distance, openly carry arms and conduct their operations in accordance with their
laws and customs of war. Article 118 and 119 also provide for humanitarian reasons that the Prisoners of war
should be released and repatriated without delay after cessation of active hostilities.
5. The Geneva Convention on Wounded and Sick in Armed Forces in the field obligates the belligerents to
protect the wounded and sick personnel and to respect medical units and establishments. A warship of
recognised belligerents will not be treated as a private boat.
6.   The belligerents can have bilateral trade with the recognizing state
7 .The belligerents can enter into treaties with the recognizing state.
8. A recognized belligerent state becomes entitled to sue in courts of the recognised state.
 9. The recognized belligerents are not be treated as pirates and rules of war become applicable to them. By
the very limited nature and scope of insurgency as against belligerency, these legal consequences are
comprehensively applicable when the party is recognized as a belligerent rather than an insurgent.

H. Forms of Recognition
“DE JURE DE FACTO”
“CONSTITUTIVE DECLARATIVE”
I. Consequences of Recognition
It acquires the capacity to enter into diplomatic relations with other states. It acquires the capacity to enter into
treaties with other states. The state is able to enjoy the rights and privileges of international statehood. The
state can undergo state succession.

IV. Recognition of States and Governments – sources from above, just integrate later….
J. Recognition of a State: Declaratory or Constitutive
K. Recognition is a Political Act
L. Recognition: De Facto
M. Recognition: De Jure
N. The Estrada Doctrine
O. Recognition of Insurgency
P. Recognition of Belligerency
Q. Forms of Recognition
R. Consequences of Recognition

V. Continuity and Succession of States

Starting from page 74 of the sarmiento book; page 334 from the SAN BEDA MEM AID
A. State Continuity

Creation of States. By revolution, unification, secession, assertion of independence, agreement and attainment of
civilization; distinct and separate international personality.

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. (Bernas, 2009)

Extinction of States. By extinction or emigration en masse of its population, loss of territory, overthrow of government
resulting in anarchy.

Elements of a State: (Pe-Te-Go-So)

1. People – inhabitant of the state;
2. Territory – fixed portion of the surface of the earth inhabited by the people of the State;
3. Government – agency or instrumentality through which the will of the State is formulated, expressed and realized;
and
4. Sovereignty – supreme and uncontrollable power inherent in a State by which that State is governed. (Cruz, 2014)

Other suggested elements of a State

1. Civilization
2. Recognition

Nation
It is defined as a body of people more or less of the same race, language, religion, and historical traditions.
(Sarmiento, 2007)

Doctrine of Equality of States

All states are equal in international law despite their obvious factual inequalities as to size, population, wealth,
strength, or degree of civilization. (Sarmiento, 2007)

Principle of State Continuity. The state continues as a juristic being notwithstanding changes in its circumstances,
provided only that such changes do not result in the loss of any of its essential elements .

B. State Succession
a) Succession of States.
-State succession takes place when one state assumes the rights and some of the obligations of
another because of certain changes in the condition of the latter. This holds true in the event that a
state is extinguished or is created. (Cruz, 2000)

-It is the replacement of one State by another in the responsibility for the international relations of
territory. (Art. 2(b), Vienna Convention on Succession of States in respect of Treaties)

-A succession of States does not as such affect: (a) a boundary established by a treaty; or (b)
obligations and rights established by a treaty and relating to the regime of a boundary. (Art. 11(a)(b),
Vienna Convention on Succession of States in respect of Treaties)

-May be universal (dissolution of Czechoslovakia = Czech Republic and Slovakia) when one State
completely absorbs the international personality of another State and thereby becomes the sole
representative at law of the rights and obligations of the latter State;

or partial (separation of Pakistan from India; separation of Bangladesh from Pakistan) when an
existing State takes over whether by force or voluntary cession, the sovereignty of a portion of territory
formerly belonging to another State or when a new State is formed by breaking off from the latter
state;

-‘the replacement by one State by another in the responsibility for the international relations of
territory.’

-Consequences are: political laws are abrogated while municipal laws remain in force;

-treaties are discontinued, except those dealing with local rights and duties, such as those
establishing easements and servitudes;

All rights of the predecessor state are inherited, but successor state can assume and reject liabilities
at its discretion.

Rules on State Succession

1. As to territory – The capacities, rights and duties of the predecessor State with respect to that
territory terminate and are assumed by the successor State. (Bernas, 2009)

2. As to State property – The agreement between the predecessor and the successor State govern;
otherwise:
a. Where a part of the territory of a State becomes part of the territory of another State,
property of the predecessor State located in that territory passes to the successor State;
b. Where a State is absorbed by another State, property of the absorbed State, wherever
located, passes to the absorbing State; or
c. Where a part of a State becomes a separate State, property of the predecessor State
located in the territory of the new State passes to the new State. (Bernas, 2009)

3. As to public debts – the agreement between predecessor and successor State govern;
otherwise:
a. Where a part of the territory of a State becomes part of the territory of another State, local
public debt and the rights and obligations of the predecessor State under contracts relating to
that territory are transferred to the successor State;
b. Where a State is absorbed by another State, public debt and the rights and obligations
under contracts of the absorbed State pass to the absorbing State;
c. Where a part of a State becomes a separate State, local public debt and the rights and
obligations of the predecessor State under contracts relating to that territory are transferred to
the successor State. (Bernas, 2009)

4. As to treaties
a. When part of the territory of a State becomes the territory of another State, the international
agreements of the predecessor State cease to have effect in respect of the territory and
international agreements of the successor State come into force there. (Bernas, 2009)

NOTE: “Moving Treaty or Moving Boundaries” Rule – A third State may seek relief from the
treaty on ground of rebus sic stantibus. When a State is absorbed by another State, the
international agreements of the absorbed State are terminated, and the international
agreements of the absorbing
State become applicable to the territory of the absorbed State. (Bernas, 2009)
 NOTE: “Moving Treaty or Moving Boundaries” Rule may apply.

a. When a part of a State becomes a new State, the new State does not succeed to the
international agreements to which the predecessor State was a party, unless, expressly or by
implication, it accepts such agreements and the other party or parties thereto agree or
acquiesce; or,
b. Pre-existing boundary and other territorial agreements continue to be binding
notwithstanding (Uti possidetis rule). (Bernas, 2009)

a) Succession of Governments. There is succession of government where one government replaces

another either peacefully or by violent methods. The integrity of the State is not affected; the state
continues as the same international person except that its lawful representative is changed.

The consequences are:

-all rights of the predecessor government are inherited by the successor;

-and where the new government was organized by virtue of constitutional reform duly ratified in a
plebiscite, all obligations of the predecessor are likewise assumed;

However, where the new government is established through violence, the new government may lawfully
reject purely personal or political obligations of the predecessor, but not those obligations contracted by it
in the ordinary course of official business.

Effects of a Change of Government

1. If the change is peaceful, the new government assumes the rights and responsibilities of the old
government.
2. If the change was effected through a violence, a distinction must be made.
a. Acts of political complexion may be denounced; and,
b. Routinary acts of mere governmental administration continue to be effective.

7. Classes of States.

a) Independent. Has freedom to direct and control foreign relations without restraint from other states. May
be:

i) Simple: Single central government, with power over internal and external affairs.

ii) Composite: Two or more sovereign states joined together to constitute one international person,
which may be:

iia) Real Union: two or more states are merged under a unified authority so that they form a
single international person through which they act as one entity. The states retain their
separate identities, but their respective international personalities are extinguished and
blended in the new international person. E.g., the former United Arab Republic, with Egypt
and Syria.

iib) Federal Union: combination of two or more states which, upon merger, cease to be
states, resulting in the creation of a new state with full international personality to represent
them in their external relations as well as a certain degree of power over their domestic affairs
and their inhabitants.

Authority over internal affairs: divided between federal authorities and the member-states;

authority over external affairs: handled solely by federal authorities.

b) Dependent: an entity which, although theoretically a state, does not have full freedom in the direction of its
external affairs, such as a protectorate(which is established at the request of the weaker state for the
protection by a strong power, e.g., Panama, Andorra, Monaco) or a suzerainty(which is the result of a
concession from a state to a former colony that is allowed to be independent subject to the retention by the
former sovereign of certain powers over the external affairs of the latter, e.g., Bulgaria and Rumania, both
suzerainties of the Sultan of Turkey by virtue of the Treaty of Berlin of 1878).

c) Neutralized: whose independence and integrity are guaranteed by an international treaty on the condition
that such state obligates itself never to take up arms against any other state (except in self-defense), or to
enter into an international obligation as would indirectly involved it in war, e.g., Switzerland, Austria.
C. Succession as to Treaties
4. As to treaties
a. When part of the territory of a State becomes the territory of another State, the international
agreements of the predecessor State cease to have effect in respect of the territory and
international agreements of the successor State come into force there. (Bernas, 2009)

NOTE: “Moving Treaty or Moving Boundaries” Rule – A third State may seek relief from the
treaty on ground of rebus sic stantibus. When a State is absorbed by another State, the
international agreements of the absorbed State are terminated, and the international
agreements of the absorbing
State become applicable to the territory of the absorbed State. (Bernas, 2009)

NOTE: “Moving Treaty or Moving Boundaries” Rule may apply.

a. When a part of a State becomes a new State, the new State does not succeed to the
international agreements to which the predecessor State was a party, unless, expressly or by
implication, it accepts such agreements and the other party or parties thereto agree or
acquiesce; or,
b. Pre-existing boundary and other territorial agreements continue to be binding
notwithstanding (Uti possidetis rule). (Bernas, 2009)

D. Succession of States to Membership in International Organizations

VI. Rights, Privileges and Duties of International Persons

A. Fundamental Rights of States
B. Definition of Rights and Duties of States
a. Right of Existence
b. Right of Self-Defense
c. Collective Self-Defense
d. Right of Independence and of Self-Determination
C. The Problem of Assertion of Domestic Jurisdiction
D. Right of Equality
E. Acts of the State Doctrine
F. Immunity of States and Officials
G. Foreign Minister’s Sovereign Immunity
H. Restrictive Application of State Immunity
I. Personal Immunity of Heads of State
J. Presumed Acts of Waiver
K. Immunity of International Persons
L. Duties of States

VII. State Responsibility and Treatment of Aliens

A. State Treatment of Aliens
B. Reception and Expulsion of Aliens
C. Expropriation of Alien’s Property and Nationalization
D. Nationality of Claim
E. Protection of Alien Companies and Shareholders
F. Expropriation or Nationalization of Alien Properties
G. Expropriation of Contractual Rights
H. Civil and Political Rights of Aliens
I. Duties of an Alien within the State
J. State Responsibility on Contracts with Aliens

VII. Territory of States

A. Concept of Territory
B. Acquisition of Territory
C. Title by Occupation and Prescription
D. Title by Accretion
E. Conquest and Annexation
F. Cession
IX. Jurisdiction of States
A. Personal Jurisdiction
a. The Nationality Principle
b. The Territoriality Principle
c. The Protective Principle
d. Passive Personality Principle
e. The Universality Principle
i. Slavery
ii. Highjacking
iii. International Terrorism
iv. Genocide

B. Jurisdiction over Foreign Armed Forces

C. Jurisdiction over Land Territory
D. Maritime Jurisdiction
a. UNCLOS
b. Universal Acceptance of the Convention
c. Major innovations of UNCLOS
d. Internal or National Waters
e. Innocent Passage in Territorial Sea

C. Criminal and Civil Jurisdiction Over Foreign Vessels

a. English and French Rule

E. Jurisdiction Over Warships and Government Vessels

F. Straits Used for International Navigation
a. Effect of 12-mile Territorial Sea
b. Exclusive Economic Zone Rights, jurisdiction and duties of Coastal State in EEZDelimitation of EE
c. Continental Shelf
d. Land-locked and Disadvantaged States
e. High Seas
i. Flag of Convenience, Principle of Genuine Link
ii. Immunity of Warships and Government Non-Commercial Vessels
iii. Penal Jurisdiction in the High Seas
iv. Obligations of Ship in the High Seas
v. Right to Visit and Search on the High Seas
vi. Right of Laying and Protection of Submarine cables
vii. Right of Fishing and Obligation to Conserve Living Resources and to Prevent Pollution
viii. Nuclear Tests in the High Seas
f. International Deep Seabed Mining

X. Nationality and Statelessness

A. Multiple Nationality
B. Naturalization
C. Stateless Person
D. Dual Nationality
E. Loss of Nationality
F. Dual Citizenship of Filipinos Naturalized Abroad

XI. Diplomatic and Consular Relations

A. Conduct of Foreign Relations
B. Right of Legation
C. Functions of Diplomatic Missions
D. Consular Relations

XII. Jurisdictional Cooperation and Assistance Among States

E. Extradition
F. Right of Asylum
G. Refugees
H. Letters Rogatory
I. Prosecution of International Crimes
J. Recovery of Claims Abroad
K. Cooperation in the Protection of Marine Resources

XIII. Treaties and Other International Agreements

A. Treaty Making Power of the State
a. Capacity to Enter into a Treaty
b. Negotiation of Treaties
B. Executive Agreements
C. Ratification of Treaties
D. Pacta Sunt Servanda
E. Interpretation of Treaties
F. Principle of Jus Cogens
G. Termination, Suspension of and Withdrawal from Treaties

XIV. Peaceful Settlement of International Disputes

A. Political and Legal Disputes
a. Negotiation
b. Enquiry
c. Mediation
d. Tender of Good Offices
e. Conciliation
f. Arbitration
g. Resort to Regional Arrangements and Other Agencies
h. Judicial Settlement- International Court of Justice
B. Enforcement of Judgment

XV. Use of Force Short of War

A. Self-Help Measures Short of War
a. Retorsion
b. Reprisals Embargo
c. Boycott
d. Blockade
e. Intervention

B. Terrorism, the Latest Threats to International Security

XVI. International Wars

A. Legal Nature of International Wars
B. Renunciation of War
C. Geneva Conventions on Rules of War (1949)

XVII. Internal Armed Conflicts- The International Humanitarian Law

A. Humanitarian Law in Internal Armed Conflicts