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2008 LEI Notes in
Public International Law

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2 PUBLIC INTERNATIONAL LAW 2008
Notes:
“Nam omnia praeclara tam difficilia quam rara sunt”

For all that is excellent and eminent is as difficult as it is rare
-Spinoza on Ethics
INTRODUCTION te nal modes administrativ
of e and judicial
Definition settlemen processes.
Public v Private International Law t – like
Basis of Public International Law negotiatio
1. Naturalist ns and
arbitratio NOTES:
2. Positivists
3. Eccletics n,
Three Grand Divisions reprisals
Relations between International and Municipal and even
Law war
1. From the viewpoint of doctrine 3. Derived Consists
a. Dualist Sourc from such mainly from
b. Monists e sources as the
2. From the view of practice internatio lawmaking
a. Doctrine of Transformation nal authority of
b. Doctrine of Incorporation customs, each state.
internatio
¯°º°¯ nal
DEFINITION OF Public International Law conventio
It is the body of rules and principles that are ns and the
recognized as legally binding and which govern general
the relations of states and other entities invested principles
with international legal personality. Formerly of law.
known as “law of nations” coined by Jeremy
Bentham in 1789. 4. Applies to Regulates the
Subje relations relations of
Public International Law Distinguished From ct states individuals
Private International Law/Conflict of Laws inter se whether of
It is that part of the law of each State which and other the same
determines whether, in dealing with a factual internatio nationality or
situation, an event or transaction between private nal not.
individuals or entities involving a foreign element, persons.
the law of some other State will be recognized.
Public Private 5. Infractions Generally,

Respo are entails only
1. Public is As a rule, nsibil usually individual
Natur internatio Private is
ity collective responsibility
e nal in national or for in the .
nature. It municipal in
violat sense that
is a law of character. ion it
a Except when
attaches
sovereign embodied in directly to
over those a treaty or
the state
subjected convention, and not to
to his becomes
its
sway international nationals.
[Openhei in character.
m – It is a law,
Lauterpac not above, BASIS OF PIL – 3 SCHOOLS OF THOUGHT [Why are
ht, 38.] but between, rules of international law binding?]
sovereign
states and is, 1. Naturalist –
therefore, a ★ PIL is a branch of the great law of nature –
weaker law. the sum of those principles which ought to
[Openheim – control human conduct, being founded on
Lauterpacht, the very nature of man as a rational and
38.] social being. [Hugo Grotius]
★ PIL is binding upon States
2. Disputes Recourse is
Settl are with
2. Positivist –
emen resolved municipal
★ Basis is to be found in the consent and
t of through tribunals
conduct of States.
Dispu internatio through local
★ Tacit consent in the case of customary

international law. Doctrine of Incorporation - Notes:
★ Express in conventional law. Rules of international law form part of the law of
★ Presumed in the general law of nations. the land and no further legislative action is
[Cornelius van Bynkershoek] needed to make such rules applicable in the
3. Groatians or Eclectics – domestic sphere. [Sec. of Justice v. Lantion GRN
★ Accepts the doctrine of natural law, but 139465, Jan. 18, 2000]
maintained that States were accountable
only to their own conscience for the This is followed in the Philippines:
observance of the duties imposed by Art. II, Sec. 2 – “The Philippines…adopts the
natural law, unless they had agreed to be generally accepted principles of international law
bound to treat those duties as part of as part of the law of the land…” However, no
positive law. [Emerich von Vattel] primacy is implied.
★ Middle ground
Q: What are these generally accepted
3 GRAND DIVISIONS principles?
1. Laws of Peace – normal relations between A: Pacta sunt servanda, sovereign equality among
states in the absence of war. states, principle of state immunity; right of states
to self-defense
2. Laws of War – relations between hostile or
belligerent states during wartime. Secretary Of Justice v. Judge Lantion and
Jimenez [GR 139465, 18 Jan. 2000]
3. Laws of Neutrality – relations between a non-
participant state and a participant state during FACTS: A possible conflict between the US-RP
wartime. This also refers to the relations among Extradition Treaty and Philippine law
non-participating states.
RELATIONS BETWEEN INTERNATIONAL LAW AND ISSUE: WON, under the Doctrine of Incorporation,
MUNICIPAL LAW International Law prevails over Municipal Law
From the Viewpoint of Doctrine HELD: NO.

1. Dualists –
★ International Law and Municipal Law are Under the doctrine of incorporation, rules of
two completely separate realms. international law form part of the law of the land
★ See distinctions Nos. 1,3 &4. and no further legislative action is needed to
make such rules applicable in the domestic
2. Monists – sphere.
★ Denies that PIL and Municipal Law are
essential different.
The doctrine of incorporation is applied whenever
★ In both laws, it is the individual persons
local courts are confronted with situations in
who in the ultimate analysis are regulated
which there appears to be a conflict between a
by the law. That both laws are far from
rule of international law and the provisions of the
being essentially different and must be
local state’s constitution/statute.
regarded as parts of the same juristic
conception. For them there is oneness or
unity of all laws. First, efforts should first be exerted to harmonize
★ PIL is superior to municipal law— them, so as to give effect to both. This is because
international law, being the one which it is presumed that municipal law was enacted
determines the jurisdictional limits of the with proper regard for the generally accepted
personal and territorial competence of principles of international law in observance of
States. the incorporation clause.
From the Viewpoint of Practice However, if the conflict is irreconcilable and a

1. International Tribunals choice has to be made between a rule of
★ PIL superior to Municipal Law international law and municipal law,
★ Art. 27, Vienna Convention in the law of jurisprudence dictates that the municipal courts
Treaties – A state “may not invoke the should uphold municipal law.
provisions of its internal law as justification
for its failure to perform a treaty” This is because such courts are organs of
★ State legally bound to observe its treaty municipal law and are accordingly bound by it in
obligations, once signed and ratified all circumstances. The fact that international law
was made part of the law of the land does not
2. Municipal Sphere – depends on what doctrine is pertain to or imply the primacy of international
followed:
law over national/municipal law in the municipal where the Constitution is the highest law of the
sphere. land, such as the Republic of the Philippines, both Notes:
statutes and treaties may be invalidated if they
are in conflict with the Constitution. (Secretary
The doctrine of incorporation, as applied in most
of Justice v. Hon. Ralph C. Lantion, G.R. No.
countries, decrees that rules of international law
139465, Jan. 18, 2000, En Banc [Melo])
are given equal standing with, but are not
superior to, national legislative enactments.
Q: Is sovereignty really absolute and all-
encompassing? If not, what are its restrictions
In case of conflict, the courts should harmonize and limitations?
both laws first and if there exists an unavoidable Held: While sovereignty has traditionally been
contradiction between them, the principle of lex deemed absolute and all-encompassing on the
posterior derogat priori - a treaty may repeal a domestic level, it is however subject to
statute and a statute may repeal a treaty - will restrictions and limitations voluntarily agreed to
apply. But if these laws are found in conflict with by the Philippines, expressly or impliedly, as a
the Constitution, these laws must be stricken out member of the family of nations. By the doctrine
as invalid. of incorporation, the country is bound by
generally accepted principles of international law,
In states where the constitution is the highest law which are considered to be automatically part of
of the land, such as in ours, both statutes and our own laws. One of the oldest and most
treaties may be invalidated if they are in conflict fundamental rules in international law is pacta
with the constitution. sunt servanda – international agreements must be
performed in good faith. A state which has
Supreme Court has the power to invalidate a contracted valid international obligations is bound
treaty – Sec. 5(2)(a), Art. VIII, 1987 Constitution to make in its legislations such modifications as
may be necessary to ensure the fulfillment of the
obligations.
Q: What is the doctrine of incorporation? How
is it applied by local courts?
By their inherent nature, treaties really limit or
Held: Under the doctrine of incorporation, rules
restrict the absoluteness of sovereignty. By their
of international law form part of the law of the
voluntary act, nations may surrender some
land and no further legislative action is needed to
aspects of their state power in exchange for
make such rules applicable in the domestic
greater benefits granted by or derived from a
sphere.
convention or pact. After all, states, like
individuals, live with coequals, and in pursuit of
The doctrine of incorporation is applied whenever
mutually covenanted objectives and benefits,
municipal tribunals (or local courts) are
they also commonly agree to limit the exercise of
confronted with situations in which there appears
their otherwise absolute rights. Thus, treaties
to be a conflict between a rule of international
have been used to record agreements between
law and the provisions of the Constitution or
States concerning such widely diverse matters as,
statute of the local state. Efforts should first be
for example, the lease of naval bases, the sale or
exerted to harmonize them, so as to give effect to
cession of territory, the termination of war, the
both since it is to be presumed that municipal law
regulation of conduct of hostilities, the formation
was enacted with proper regard for the generally
of alliances, the regulation of commercial
accepted principles of international law in
relations, the settling of claims, the laying down
observance of the Incorporation Clause in Section
of rules governing conduct in peace and the
2, Article II of the Constitution. In a situation
establishment of international organizations. The
however, where the conflict is irreconcilable and
sovereignty of a state therefore cannot in fact and
a choice has to be made between a rule of
in reality be considered absolute. Certain
international law and municipal law,
restrictions enter into the picture: (1) limitations
jurisprudence dictates that municipal law should
imposed by the very nature of membership in the
be upheld by the municipal courts for the reason
family of nations and (2) limitations imposed by
that such courts are organs of municipal law and
treaty stipulations. (Tanada v. Angara, 272 SCRA
are accordingly bound by it in all circumstances.
18, May 2, 1997 [Panganiban])
The fact that international law has been made
part of the law of the land does not pertain to or
Doctrine of Transformation –
imply the primacy of international law over
Legislative action is required to make the treaty
national or municipal law in the municipal sphere.
enforceable in the municipal sphere.
The doctrine of incorporation, as applied in most
countries, decrees that rules of international law
Generally accepted rules of international law are
are given equal standing with, but are not
not per se binding upon the state but must first be
superior to, national legislative enactments.
embodied in legislation enacted by the lawmaking
Accordingly, the principle of lex posterior derogat
body and so transformed into municipal law. This
priori takes effect – a treaty may repeal a statute
and a statute may repeal a treaty. In states
doctrine runs counter Art. II, Sec. 2, of the 1987 class as the latter. Thus, the latter law would be
Constitution. considered as amendatory of the treaty, being a Notes:
A reading of the case of Kuroda v Jalandoni, [GRN subsequent law under the principle lex posterior
L-2662 March 26, 1949], one may say that derogat priori. (Abbas vs. COMELEC)
Supreme Court expressly ruled out the Doctrine of
Transformation when they declared that generally
accepted principles of international law form a
part of the law of our nation even if the
Philippines was not a signatory to the convention
embodying them, for our Constitution has been
deliberately general and extensive in its scope
and is not cofined to the recognition of rules and
principles of international law as contained in
treaties to which our government may have been
or shall be a signatory. SOURCES
Pacta Sunt Servanda Article 38 of the Statute of International Court of

International agreements must be performed in Justice (SICJ) directs that the following be
Good Faith. A treaty engagement is not a mere considered before deciding a case:
moral obligation but creates a legally binding
obligation on the [arties. A state which has A. Primary
contracted a valid international obligation is I. Treaties or International Conventions
bound to make in its legislation such modifications II. International Custom
as may be necessary to ensure the fulfillment of III. General Principles of Law Recognized by
the obligations undertaken. Civilized Nations
Tañada vs. Angara B. Secondary

GRN 118295 May 2, 1997 IV. Judicial Decisions
V. Teachings of authoritative publicists
While sovereignty has traditionally been deemed
absolute and all encompassing on the domestic ¯°º°¯
level, it is however subject to restrictions and
limitations voluntarily agreed to by the A. Primary
Philippines, expressly or impliedly as a member of
the family of nations. The Constitution does not I. Treaties or International Conventions – 2
envision a hermit type isolation of the country KINDS:
from the rest of the world. 1. Contract Treaties [Traite-Contrat] –
★ Bilateral arrangements concerning matters

By the doctrine of incorporation, the country is
of particular or special interest to the
bound by generally accepted principles of
contracting parties
international law, which are considered to be
★ Source of “Particular International Law”
automatically part of our own laws.
★ BUT: May become primary sources of
international law when different contract
The constitutional policy of a "self-reliant and treaties are of the same nature, containing
independent national economy" does not practically uniform provisions, and are
necessarily rule out the entry of foreign concluded by a substantial number of States
investments, goods and services. It contemplates EX.: Extradition Treaties
neither “economic seclusion" nor "mendicancy in
the international community." 2. Law-Making Treaty [Traite-Loi] –
★ Concluded by a large number of States for
purposes of:
Concept of Sovereignty as Autolimitation 1. Declaring, confirming, or defining their
When the Philippines joined the United Nations as understanding of what the law is on a
one of its 51 charter members, it consented to particular subject;
restrict its sovereign rights under the "concept of 2. Stipulating or laying down new general
sovereignty as autolimitation. rules for future international conduct;
3. Creating new international institutions
Q: A treaty was concurred between RP and ★ Source of “General International Law”
China. Later, a law was passed which has
conflicting provisions with the treaty. Rule. II. International Custom –
A: A treaty is part of the law of the land. But as Matters of international concern are not usually
internal law, it would not be superior to a covered by international agreements and many
legislative act, rather it would be in the same States are not parties to most treaties;
international custom remains a significant source Such works are resorted to by judicial tribunals
of international law, supplementing treaty rules. not for the speculation of their authors Notes:
concerning what the law ought to be, but for
Custom is the practice that has grown up between trustworthy evidence of what the law really is.
States and has come to be accepted as binding by [Mr. Justice Gray in Paquete Habana case, 175
the mere fact of persistent usage over a long U.S. 677.]
period of time
Q: State your general understanding of the
It exists when a clear and continuous habit of primary sources and subsidiary sources of
doing certain things develops under the international law, giving an illustration of each.
CONVICTION that it is obligatory and right. (2003 Bar)
A: Under Article 38 of the Statute of International
This conviction is called “Opinio Juris” Court of Justice, the primary sources of
international law are the following:
When there’s no conviction that it is obligatory
and right, there’s only a Usage. 1. International conventions, e.g. Vienna
Convention on the Law of Treaties.
Usage is also a usual course of conduct, a long- 2. International customs, e.g. cabotage, the
established way of doing things by States. prohibition against slavery, and the
prohibition against torture.
To elevate a mere usage into one of a customary 3. General principles of law recognized by
rule of international law, there must be a degree civilized nations, e.g. prescription, res
of constant and uniform repetition over a period judicata, and due process.
of time coupled with opinio juris.
The subsidiary sources of international law are
III. General Principles of Law Recognized by judicial decisions, subject to the provisions of
Civilized Nations Article 59, e.g., the decision in the Anglo-
Norwegian Fisheries Case and Nicaragua v. US, and
Salonga opines that resort is taken from general teachings of the most highly qualified publicists of
principles of law whenever no custom or treaty various nations, e.g., Human Rights in
provision is applicable. The idea of “civilized International Law by Lauterpacht and
nations” was intended to restrict the scope of the International Law by Oppenheim-Lauterpacht.
provision to European States, however, at present
the term no longer have such connotation, thus Alternative A: Reflecting general international
the term should include all nations. law, Article 38(1) of the Statute of International
Court of Justice is understood as providing for
Examples of general principles are: estoppel, international convention, international custom,
pacta sunt servanda, consent, res judicata and and general principles of law as primary sources
prescription; including the principles of justice, of international law, while indicating that judicial
equity and peace. decisions and teachings of the most highly
qualified publicists as “subsidiary means for the
B. Secondary determination of the rules of law.”
IV. Judicial decisions The primary sources may be considered as formal

The doctrine of stare decisis is not applicable in sources in that they are considered methods by
international law per Art.59 of the ICJ which which norms of international law are created and
states that “The decision of the Court has no recognized. A conventional or treaty norm and a
binding force except between the parties and in customary norm is the product of the formation of
respect to that particular case.” This means that general practice accepted as law.
these decisions are not a direct source, but they
do exercise considerable influence as an impartial By way of illustrating international Convention as
and well-considered statement of the law by a source of law, we may refer to the principle
jurists made in the light of actual problems which embodied in Article 6 of the Vienna Convention on
arise before them, and thus, accorded with great the Law on Treaties which reads: “Every State
respect. possesses capacity to conclude treaties.” It tells
us what the law is and the process or method by
This includes decisions of national courts, which it cam into being. International Custom
although they are not a source of law, the may be concretely illustrated by pacta sunt
cumulative effect of uniform decisions of the servanda, a customary or general norm which
courts of the most important States is to afford came about through extensive and consistent
evidence of international custom. practice by a great number of states recognizing
it as obligatory.
V. Teachings of authoritative publicists –
including learned writers
The subsidiary means serves as evidence of law. A d. Consequences of Recognition of

decision of the International Court of Justice, for Belligerents Notes:
example, may serve as material evidence e. Forms of Recognition
confirming or showing that the prohibition against
the use of force is a customary norm, as the ¯°º°¯
decision of the Court has demonstrated in the
Nicaragua Case. The status of a principle as a Subject Defined
norm of international law may find evidence in A Subject is an entity that has an international
the works of highly qualified publicists in personality. An entity has an international
international law, such as McNair, Kelsen or personality if it can directly enforce its rights and
Oppenheim. duties under international law. Where there is no
direct enforcement of accountability and an
intermediate agency is needed, the entity is
merely an object not a subject of international
law.
SUBJECTS
Q: When does an entity acquire international
Subject Defined personality?
Object Defined A: When it has right and duties under
2 Concepts of Subjects of International Law international law; can directly enforce its rights;
State as Subjects of International Law and may be held directly accountable for its
Elements of a State obligations.
4. People Objects Defined
5. Territory An Object is a person or thing in respect of which
6. Government rights are held and obligations assumed by the
a) 2 kinds Subject. Thus, it is not directly governed by the
(1) De Jure rules of international law. There is no direct
(2) De Facto – 3 kinds enforcement and accountability. An intermediate
b) 2 functions agency—the Subject—is required for the
(1) Constituent enjoyment of its rights and for the discharge of its
(2) Ministrant obligations.
c) Effects of change in government
7. Sovereignty SUBJECTS OF INTERNATIONAL LAW
a) Kinds 2 Concepts:
b) Characteristics 1. Traditional concept
c) Effects of change in sovereignty ★ Only States are considered subjects of
Principle of State Continuity international law.
Fundamental Rights of States
1. Right to Sovereignty and Independence; 2. Contemporary concept
2. Right to Property and Jurisdiction; ★ Individuals and international
3. Right to Existence and Self-Defense organizations are also subjects because
4. Right to Equality they have rights and duties under
5. Right to Diplomatic Intercourse international law. (Liang vs. People, GRN
Recognition 125865 [26 March 2001])
Level of Recognition
A. Recognition of State - 2 Schools of The STATE as subject of International Law
Thought State is a community of persons more or less
a. Constitutive School numerous, permanently occupying a definite
b. Declaratory School portion of territory, independent of external
B. Recognition of Government control, and possessing an organized government
a. Criteria for Recognition to which the great body of inhabitants render
1. Objective Test – habitual obedience.
2. Subjective Test
(a) Tobar/Wilson Doctrine Q: The Japanese government confirmed that
(b) Estrada Doctrine during the Second World War, Filipinas were
b. Kinds of Recognition among those conscripted as “comfort women”
1. De Jure (prostitutes) for Japanese troops in various
2. De Facto parts of Asia. The Japanese government has
c. Consequences of Recognition of accordingly launched a goodwill campaign and
Government offered the Philippine government substantial
C. Recognition of Belligerency assistance for a program that will promote
a. Belligerency through government and non-governmental
b. 2 Senses of Belligerency organization women’s rights, child welfare,
c. Requisites of Belligerency nutrition and family health care. An executive
agreement is about to be signed for that A: According to Hanks Kelson, “while as a general
purpose. The agreement includes a clause rule, international law has as its subjects states Notes:
whereby the Philippine government and obliges only immediately, it exceptionally
acknowledges that any liability to the comfort applies to individuals because it is to man that the
women or their descendants are deemed norms of international law apply, it is to man
covered by the reparations agreements signed whom they restrain, it is to man who,
and implemented immediately after the Second international law thrusts the responsibilities of
World War. Julian Iglesias, descendant of now law and order.”
deceased comfort woman, seeks you advise on
the validity of the agreement. Advise him. Q: Is the Vatican City a state?
(1992 Bar) A: YES!
A: The agreement is valid. The comfort woman
and their descendant cannot assert individual
claims against Japan. As stated in Paris Moore v.
Reagan, 453 US 654, the sovereign authority of
the state to settle claims of its nationals against Holy See v. Rosario
foreign countries has repeatedly been recognized. [GR 101949, 01 Dec. 1994]
This may be made without the consent of the
nationals or even without consultation with them.
Since the continued amity between the State and The Lateran Treaty established the STATEHOOD of
the Vatican City “for the purpose of assuring to
other countries may require a satisfactory
compromise of mutual claims, the necessary the Holy See absolute and visible independence
and of guaranteeing to it indisputable sovereignty
power to make such compromise has been
recognized. The settlement of such claims may also in the field of international relations”.
be made by executive agreement.
From the wordings of the Lateran Treaty, it is
Q: What must a person who feels aggrieved by difficult to determine whether the statehood is
the acts of a foreign sovereign do to espouse his vested in the Holy See or in the Vatican City.
cause?
Held: Under both Public International Law and The Vatican City fits into none of the established
Transnational Law, a person who feels aggrieved categories of states, and the attribution to it of
by the acts of a foreign sovereign can ask his own “sovereignty” must be made in a sense different
government to espouse his cause through from that in which it is applied to other states.
diplomatic channels.
The Vatican City represents an entity organized
Private respondent can ask the Philippine
not for political but for ecclesiastical purposes
government, through the Foreign Office, to and international objects.
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 Despite its size and object, it has an independent
claims. Of course, the Foreign Office shall first government of its own, with the Pope, who is also
make a determination of the impact of its head of the Roman Catholic Church, as the Holy
espousal on the relations between the Philippine See or Head of State, in conformity with its
government and the Holy See. Once the traditions, and the demands of its mission.
Philippine government decides to espouse the Indeed, its world-wide interests and activities are
claim, the latter ceases to be a private cause. such as to make it in a sense an “international
state”.
According to the Permanent Court of International
Justice, the forerunner of the International Court It was noted that the recognition of the Vatican
of Justice: City as a state has significant implication – that it
is possible for any entity pursuing objects
“By taking up the case of one of its subjects and essentially different from those pursued by states
by resorting to diplomatic action or international to be invested with international personality.
judicial proceedings on his behalf, a State is in
reality asserting its own rights – its right to Since the Pope prefers to conduct foreign
ensure, in the person of its subjects, respect for relations and enter into transactions as the Holy
the rules of international law.” (The Mavrommatis See and not in the name of the Vatican City, one
Palestine Concessions, 1 Hudson, World Court can conclude that in the Pope's own view, it is the
Reports 293, 302 [1924]) (Holy See, The v. Rosario, Holy See that is the international person.
Jr., 238 SCRA 524, 533-534, Dec. 1, 1994, En Banc
[Quiason])
The Philippines has accorded the Holy See the
Q: What is the status of an individual under status of a foreign sovereign. The Holy See,
public international law? (1981 Bar) 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. The Republic of the Philippines has accorded the Notes:
Holy See the status of a foreign sovereign. The
Q: Discuss the Status of the Vatican and the Holy Holy See, through its Ambassador, the Papal
See in International Law. Nuncio, has had diplomatic representations with
Held: Before the annexation of the Papal States the Philippine government since 1957. This
by Italy in 1870, the Pope was the monarch and appears to be the universal practice in
he, as the Holy See, was considered a subject of international relations. (Holy See, The v. Rosario,
International Law. With the loss of the Papal Jr., 238 SCRA 524, 533-534, Dec. 1, 1994, En Banc
States and the limitation of the territory under [Quiason])
the Holy See to an area of 108.7 acres, the
position of the Holy See in International Law
became controversial.
In 1929, Italy and the Holy See entered into the

Lateran Treaty, where Italy recognized the
exclusive dominion and sovereign jurisdiction of ELEMENTS OF A STATE:
the Holy See over the Vatican City. It also A. People –
recognized the right of the Holy See to receive ★ the inhabitants of the State
foreign diplomats, to send its own diplomats to ★ must be numerous enough to be self-
foreign countries, and to enter into treaties sufficing and to defend themselves and
according to International Law. small enough to be easily administered
and sustained.
The Lateran Treaty established the statehood of ★ the aggregate of individuals of both sexes
the Vatican City “for the purpose of assuring to who live together as a community
the Holy See absolute and visible independence despite racial or cultural differences
and of guaranteeing to it indisputable sovereignty ★ groups of people which cannot comprise
also in the field of international relations.” a State:
1. Amazons – not of both sexes; cannot
In view of the wordings of the Lateran Treaty, it is perpetuate themselves
difficult to determine whether the statehood is 2. Pirates – considered as outside the
vested in the Holy See or in the Vatican City. pale of law, treated as an enemy of
Some writers even suggested that the treaty all mankind; “hostis humani generis”
created two international persons - the Holy See
and Vatican City. B. Territory –
★ the fixed portion of the surface of the
The Vatican City fits into none of the established earth inhabited by the people of the
categories of states, and the attribution to it of State
“sovereignty” must be made in a sense different ★ the size is irrelevant – San Marino v.
from that in which it is applied to other states. In China
a community of national states, the Vatican City ★ BUT, practically, must not be too big as
represents an entity organized not for political to be difficult to administer and defend;
but for ecclesiastical purposes and international but must not be too small as to unable to
objects. Despite its size and object, the Vatican provide for people’s needs
City has an independent government of its own, ★ Q: Why important to determine?
with the Pope, who is also head of the Roman A: Determines the area over which the
Catholic Church, as the Holy See or Head of State, State exercises jurisdiction
in conformity with its traditions, and the demands ★ Nomadic tribe not a State
of its mission in the world. Indeed, the world-
wide interests and activities of the Vatican City Q: What comprises the Philippine Archipelago?
are such as to make it in a sense an “international A: §1, Article 1, 1987 Philippine Constitution.
state.”
“The national territory comprises the Philippine
One authority wrote that the recognition of the archipelago, with all the islands and waters
Vatican City as a state has significant implication - embraced therein, and all other territories over
that it is possible for any entity pursuing objects which the Philippines has sovereignty or
essentially different from those pursued by states jurisdiction, consisting of its terrestrial, fluvial,
to be invested with international personality. and aerial domains, including its territorial sea,
the seabed, the subsoil, the insular shelves, and
Inasmuch as the Pope prefers to conduct foreign other submarine areas. The waters around,
relations and enter into transactions as the Holy between, and connecting the islands of the
See and not in the name of the Vatican City, one archipelago, regardless of their breadth and
can conclude that in the Pope's own view, it is the dimensions, form part of the internal waters of
Holy See that is the international person. the Philippines.”
2. De Facto
Q: The provision deleted the reference to  A government of fact Notes:
territories claimed “by historic right or legal  Actually exercises power or control,
title.” Does this mean that we have abandoned but has NO legal title
claims to Sabah?  3 Kinds:
A: NO! This is not an outright or formal a) By revolution – that which is
abandonment of the claim. Instead, the claim was established by the inhabitants
left to a judicial body capable of passing who rise in revolt against and
judgment over the issue depose the legitimate regime;
★ The definition covers the following EX. the Commonwealth

territories: established by Oliver Cromwell
1. Ceded to the US under the Treaty of Paris which supplanted the monarchy
of 10 Dec. 1898 under Charles I of England
2. Defined in the 07 Nov. 1900 Treaty
between US and Spain, on the following b) By government of paramount
islands; force – that which is established
3. Cagayan; in the course of war by the
4. Sulu; invading forces of one
5. Sibuto belligerent in the territory of
6. Defined in the 02 Jan. 1930 Treaty the other belligerent, the
between the US and the UK over the government of which is also
Turtle and Mangsee Islands displaced
7. Island of Batanes
8. Contemplated in the phrase “belonging EX. the Japanese occupation
to the Philippines by historic right or government in the Philippines
legal title” which replaced the
Commonwealth government
Q: What is the basis of the Philippine’s claim to during WWII
a part of the Spratlys Islands? (2000 Bar)
A: The basis of the Philippine claim is effective c) By secession – that which is
occupation of a territory not subject to the established by the inhabitants of
sovereignty of another state. The Japanese forces a state who cedes therefrom
occupied the Spratly Islands Group during the without overthrowing its
Second World War. However, under the San government
Francisco Peace Treaty of 1951, Japan formally
renounced all right and claim to the Spratlys. The EX. the confederate government
San Francisco Treaty or any other international during the American Civil War
agreement, however, did not designate any which, however, did not seek to
beneficiary state following the Japanese depose the union government
renunciation of right. Subsequently, the Spratlys
became terra nullius and was occupied by the Q: Is the Cory Aquino Government a de facto or
Philippines in the title of sovereignty. Philippine de jure government?
sovereignty was displayed by open and public A: De Jure! While initially the Aquino
occupation of a number of islands by stationing Government was a de facto government because
military forces, by organizing a local government it was established thru extra-constitutional
unit, and by awarding petroleum drilling rights, measures, it nevertheless assumed a de jure
among other political and administrative acts. In status when it subsequently recognized by the
1978, it confirmed its sovereign title by the international community as the legitimate
promulgation of Presidential Decree No. 1596, government of the Republic of the Philippines.
which declared the Kalayaan Island Group part of Moreover, a new Constitution was drafted and
Philippine territory. overwhelmingly ratified by the Filipino people and
national elections were held for that purpose.
C. Government – [Lawyers League for a Better Philippines v.
★ the agency or instrumentality through Aquino, G.R. No. 73748 (1986)]
which the will of the State is formulated,
expressed and realized ★ The Cory government won! All de facto
★ 2 KINDS: governments lost in the end!
1. De Jure
 One with rightful title but not power ★ 2 Functions:
or control, because: 1. Constituent – constitutes the very bonds
☀ Power was withdrawn; of society – COMPULSORY.
☀ Has not yet entered into the
exercise of power Examples:
(a) Keeping of order and providing for

the protection of persons and The rule is that where the new government was Notes:
property from violence and robber; organized by virtue of a constitutional reform duly
(b) Fixing of legal relations between ratified in a plebiscite, the obligations of the
spouses and between parents and replaced government are also completely assumed
children; by the former. Conversely, where the new
(c) Regulation of the holding, government was established through violence, as
transmission, and interchange of by a revolution, it may lawfully reject the purely
property, and the determination of personal or political obligations of the
liabilities for debt and crime; predecessor government but not those contracted
(d) Determination of contractual by it in the ordinary course of official business.
relations between individuals;
(e) Definition and punishment of crimes
(f) Administration of justice in civil
cases; Summary:
(g) Administration of political duties, A. Change of Government by Constitutional
privileges, and relations of citizens; Reform
(h) Dealings of the States with foreign ★ The new government inherits all the
powers rights and obligations of the former
government
2. Ministrant – undertaken to advance the
general interests of society – merely B. Change by Extra-Constitutional Means
OPTIONAL. ★ Rights – all are inherited;
★ Obligations – distinguish:
Examples: ★ Contracted in the regular course
(a) Public works; of business – Inherited;
(b) Public charity;
(c) Regulation of trade and industry EX.: Payment of postal money orders
bought by an individual
Q: Is the distinction still relevant?
A: No longer relevant! ★ Purely Personal/Political
Obligations – Not bound! May
ACCFA v. CUGCO [30 SCRA 649] reject!
EX.: Payment for arms bought by old
Constitution has repudiated the laissez faire government to fight the rebels
policy
Constitution has made compulsory the
Q: The Federation of Islamabad concluded an
performance of ministrant functions.
agreement with the republic of Baleria when
the leaders of Islamabad made a state visit to
Examples: the latter. The agreement concerns the
Promote social justice; facilitation of entry of Balerian contract workers
Land reform in Islamabad. Thereafter, a revolution broke
Provide adequate social services out in Islamabad which is now governed by a
revolutionary junta. Most of Balerian contract
Q: What is the mandate of the Philippine workers were arrested by Islamabad
Government? Immigration officers for not having with them
A: Art. II, Sec. 4 – “The prime duty of the the necessary papers and proper documents.
Government is to serve and protect the people…” Upon learning of the incident, the government
Thus, whatever good is done by government – of Baleria lodged a formal protest with the
attributed to the State; whatever harm is done by Islamabad revolutionary government invoking
the government – attributed to the government certain provisions of the aforementioned
alone, not the State agreement. The latter replied, however that
the new government is not internationally
Harm justifies the replacement of the government bound by the agreement that was concluded by
by revolution – “Direct State Action” the former government of Islamabad and
Baleria. Moreover, Islamabad further contended
EFFECTS OF A CHANGE IN GOVERNMENT: that the agreement was contrary to its
It is well settled that as far as the rights of the plasmatic law. Is the Islamabad revolutionary
predecessor government are concerned, they are government under obligation pursuant to
inherited in toto by the successor government. international law, to comply with what was
Regarding obligations, distinction is made agreed upon and set forth in the agreement
according to the manner of the establishment of concluded between Baleria and its former
the new government. government? Reasons. (1985 Bar)
A: Yes. A new government is exempt from Q: In this case, what are the effects on the
obligation of treaties entered into by the previous laws? Notes:
government only with respect to those whose A: Political Laws -
subject matter is political in nature. The GR: Suspended!
facilitation of entry by Balerian contract workers ★ Subject to revival under jus postliminium
to Islamabad is non political. Hence, the treaty – i.e., once the legitimate authority
embodying such agreement is binding on the new returns, the political laws are revived
government of Islamabad. Nor may the new
government evade its international obligation on ★ Jus Postliminium – roman law concept. If
the ground that the agreement is contrary to its a Roman Citizen is captured, he loses his
Plasmatic law. The rule is settled that a state rights as a Roman citizen, but once he
cannot evade its international obligation by returns to Rome, he recovers all those
invoking its internal law. It is presumed that the rights again
treaty is in conformity with its internal law. XPN:
D. Sovereignty – (a) Laws of Treason – Not suspended!
★ the supreme and uncontrollable power ★ Preservation of allegiance to sovereign
inherent in a State by which that State is does not demand positive action, but
governed. May be legal or political only a passive attitude or forbearance
★ KINDS: from adhering to the enemy by giving the
1. Legal and Political Sovereignty latter aid and comfort (Laurel v. Misa)
Legal - (b) Combatants – not covered by said rule

☀ the authority which has the power to ★ Thus, AFP members still covered by
issue final commands National Defense Act, Articles of War,
☀ Congress is legal sovereign etc. (Ruffy v. Chief of Staff)
★ Rule applies only to civilians
Political -
☀ the power behind the legal Civil Laws:
sovereign, or the sum of the GR: Remains in force
influences that operate upon it XPN: Amended or superseded by affirmative
☀ the different sectors molding public act of belligerent occupant
opinion
Q: What happens to judicial decisions made
2. Internal and External Sovereignty during the occupation?
A: Those of a Political Complexion –
Internal – ★ automatically annulled upon restoration
☀ the power of a State to control its of legitimate authority
internal affairs ★ conviction for treason against the
belligerent
External -
☀ the power of the State to direct its Non-political
relations with other States ★ remains valid
☀ also called “Independenc”e ★ EX.: Conviction for defamation
Characteristics of Sovereignty EFFECTS OF A CHANGE IN SOVEREIGNTY

1. permanent 1. Political Laws are deemed ABROGATED.
2. exclusivity Q: Why?
3. comprehensiveness A: They govern relations between the State
4. absoluteness and the people.
5. individuality
6. inalienability 2. Non-Political Laws generally continue in
7. imprescriptibility operation.
Q: Why?
Q: What happens to sovereignty if the acts of A: Regulates only private relations
authority cannot be exercised by the legitimate
authority? XPN:
A: Sovereignty not suspended. (a) Changed by the new sovereign
(b) Contrary to institutions of the new
EX.: Japanese Occupation during WWII sovereign
★ Sovereignty remained with the US
★ Japanese merely took over the exercise Q: What is the effect of change of sovereignty
of acts of sovereignty when the Spain ceded the Philippines to the
U.S.?
A: The effect is that the political laws of the power, as a corollary of the preceding
former sovereign are not merely suspended but consideration, to repeal or suspend the operation Notes:
abrogated. As they regulate the relations of the law of treason.
between the ruler and the rules, these laws fall to
the ground ipso facto unless they are retained or Q: Was there a case of suspended allegiance
re-enacted by positive act of the new sovereign. during the Japanese occupation?
Non-political laws, by contrast, continue in A: None. Adoption of the petitioner's theory of
operation, for the reason also that they regulate suspended allegiance would lead to disastrous
private relations only, unless they are changed by consequences for small and weak nations or
the new sovereign or are contrary to its states, and would be repugnant to the laws of
institutions. humanity and requirements of public conscience,
for it would allow invaders to legally recruit or
Q: What is the effect of Japanese occupation to enlist the quisling inhabitants of the occupied
the sovereignty of the U.S. over the Philippines? territory to fight against their own government
A: Sovereignty is not deemed suspended although without the latter incurring the risk of being
acts of sovereignty cannot be exercised by the prosecuted for treason. To allow suspension is to
legitimate authority. Thus, sovereignty over the commit political suicide.
Philippines remained with the U.S. although the
Americans could not exercise any control over the Q: Is sovereignty really absolute?
occupied territory at the time. What the A: In the domestic sphere – YES! In international
belligerent occupant took over was merely the sphere – NO!
exercise of acts of sovereignty.
Tañada, et al. vs. Angara, et al.
Q: Distinguish between Spanish secession to the [GR 118295, 02 May 1997]
U.S. and Japanese occupation during WWII
regarding the political laws of the Philippines.
While sovereignty has traditionally been deemed
A: There being no change of sovereignty during
the belligerent occupation of Japan, the political absolute and all-encompassing on the domestic
level, it is however subject to restrictions and
laws of the occupied territory are merely
suspended, subject to revival under jus limitations voluntarily agreed to by the
Philippines, expressly or impliedly, as a member
postliminium upon the end of the occupation. In
both cases, however, non-political laws, remains of the family of nations.
effective.
By the doctrine of incorporation, the country is
NOTES: bound by generally accepted principles of
Members of the armed forces are still covered by international law, which are considered to be
the National Defense Act, the Articles of War and automatically part of our own laws.
other laws relating to the armed forces even
during the Japanese occupation. One of the oldest and most fundamental rules in
international law is pacta sunt servanda –
A person convicted of treason against the international agreements must be performed in
Japanese Imperial Forces was, after the good faith.
occupation, entitled to be released on the ground
that the sentence imposed on him for his political
A treaty engagement is not a mere moral
offense had ceased to be valid but not on non- obligation but creates a legally binding obligation
political offenses.
on the parties. By their inherent nature, treaties
limit or restrict the absoluteness of sovereignty.
Q: May an inhabitant of a conquered State be
By their voluntary act, nations may surrender
convicted of treason against the legitimate some aspects of their state power in exchange for
sovereign committed during the existence of
greater benefits granted by or derived from a
belligerency? convention or pact.
A: YES. Although the penal code is non-political
law, it is applicable to treason committed against
the national security of the legitimate States, like individuals, live with coequals, and in
government, because the inhabitants of the pursuit of mutually covenanted objectives and
occupied territory were still bound by their benefits, they also commonly agree to limit the
allegiance to the latter during the enemy exercise of their otherwise absolute rights.
occupation. Since the preservation of the
allegiance or the obligation of fidelity and Thus, a state’s sovereignty cannot in fact and in
obedience of a citizen or subject to his reality be considered absolute. Certain
government or sovereign does not demand from restrictions enter into the picture:
him a positive action, but only passive attitude or Limitations imposed by the very nature of
forbearance from adhering to the enemy by giving membership in the family of nations; and
the latter aid and comfort, the occupant has no Limitations imposed by treaty stipulations.
5. Right to Diplomatic
Thus, when the Philippines joined the UN as one Intercourse Notes:
of its 51 charter members, it consented to restrict
its sovereign rights under the “concept of RIGHT OF EXISTENCE AND SELF-DEFENSE
sovereignty as AUTO-LIMITATION.” ★ The most elementary and important right of a
State
★ All other rights flow from this right
The underlying consideration in this partial
★ Recognized in the UN Charter, Article 51:
surrender of sovereignty is the reciprocal
commitment of the other contracting states in
“Nothing in the present charter shall impair
granting the same privilege and immunities to the
the inherent right of individual or collective
Philippines, its officials and its citizens.
self-defense if an armed attack occurs against
a Member of the UN, until the SC has taken
Clearly, a portion of sovereignty may be waived measures necessary to maintain international
without violating the Constitution, based on the peace and security. Measures taken by
rationale that the Philippines “adopts the Members in the exercise of this right of self-
generally accepted principles of international law defense shall be immediately reported to the
as part of the law of the land and adheres to the SC and shall not in any way affect the
policy of . . . cooperation and amity with all authority and responsibility of the SC under
nations.” the present Charter to take at any time such
action as it deems necessary in order to
Principle of State Continuity maintain or restore international peace and
State is not lost when one of its elements is security.”
changed; it is lost only when at least one of its
elements is destroyed. State does not lose its ★ Art. II, Sec. 2 – “The Philippines renounces
identity but remains one and the same war as an instrument of national policy…”
international person notwithstanding changes in ★ This prohibits an offensive/aggressive war
the form of its government, territory, people, or ★ But, it allows DEFENSIVE WAR!
sovereignty. See Holy See vs. Rosario (238 SCRA ★ Thus, when attacked, the Philippines can
524) exercise its inherent right of existence and
self-defense
From the moment of its creation, the State ★ This right is a generally accepted principle of
continues as a juristic being, despite changes in international law – thus, it is part of our law
its elements. EX.: of the land, under the Incorporation Clause
(1) Reduction of population due to natural (Art. II, Sec. 2, 1987 Constitution)
calamity
(2) Changes in territory Q: State the occasions when the use of force
However, the disappearance of any of the may be allowed under the UN Charter.
elements causes the extinction of the state. A: There are only two occasions when the use of
force is allowed under the UN Charter. The first is
Q: In the famous Sapphire Case, Emperor Louis when it is authorized in pursuance of the
Napoleon filed damage suit on behalf of France enforcement action that may be decreed by the
in an American Court, but he was deposed and Security Council under Art. 42. The second is
replaced as head of State pendent elite. Was when it is employed in the exercise of the
the action abated? (Bar) inherent right of self-defense under conditions
A: No, because it had in legal effect been filed by prescribed in Art. 51. (Justice Isagani A. Cruz, in
France, whose legal existence had not been an article entitled “A New World Order” written in
affected by change in head of its government. his column “Separate Opinion” published in the
Napoleon had sued not in his personal capacity March 30, 2003 issue of the Philippines Daily
but officially as sovereign of France. Hence, upon Inquirer)
recognition of the duly authorized representative
of the new government, the litigation could Q: Not too long ago, “allied forces”, led by
continue. Amercian and British armed forces, invaded Iraq
to “liberate Iraqis and destroy suspected
RIGHTS OF THE STATE weapons of mass destruction.” The Security
Council of the United Nations failed to reach a
Fundamental Rights of States [ S P E E D ] consensus on whether to support or oppose the
1. Right to Sovereignty “war of liberation.” Can the action taken by
and Independence; the allied forces find justification in
2. Right to Property and International Law? Explain. (2003 Bar)
Jurisdiction; A: The United States and its allied forces cannot
3. Right to Existence justify their invasion of Iraq on the basis of self-
and Self-Defense defense under Article 51, attack by Iraq, and
4. Right to Equality there was no necessity for anticipatory self-
defense which may be justified under customary achieving its objective, planted high-powered
international law. Neither can they justify their explosives and bombs at the International Trade Notes:
invasion on the ground that Article 42 of the Tower (ITT) in Jewel City in Country Y, a
Charter of the United Nations permits the use of member of the United Nations. As a result of
force against a State if it is sanctioned by the the bombing and the collapse of the 100-story
Security Council. Resolution 1441, which gave twin towers, about 2000 people, including
Iraq a final opportunity to disarm or face serious women and children were killed or injured and
consequences, did not authorize the use of armed billions of dollars in property were lost.
force.
Immediately after the incident, Ali Baba,
Alternative A: In International Law, the action speaking through its leader Bin Derdandat,
taken by the allied forces cannot find admitted and owned responsibility for the
justification. It is covered by the prohibition bombing of ITT, saying that it was done to
against the use of force prescribed by the United pressure Country Y to release captured
Nations Charter and it does not fall under any of members of the terrorist group. Ali Baba
the exceptions to that prohibition. threatened to repeat its terrorist acts against
Country Y if the latter and its allies failed to
The UN Charter in Article 2(4) prohibits the use of accede to Ali Baba’s demands. In response,
force in the relations of states by providing that Country Y demanded that Country X surrender
all members of the UN “shall refrain in their and deliver Bin Derdandat to the government
international relations from the threat or use of authorities of Country Y for the purpose of trial
force against the territorial integrity or political and “in the name of justice.” Country X refused
independence of any state, or in any other to accede to the demand of Country Y.
manner inconsistent with the purposes of the
United Nations.” This mandate does not only What action or actions can Country Y legally
outlaw war; it encompasses all threats of and acts take against Ali Baba and Country X to stop the
of force or violence short of war. terrorist activities of Ali Baba and dissuade
Country X from harboring and giving protection
As thus provided, the prohibition is addressed to to the terrorist organization? Support your
all UN members. However, it is now recognized as answer with reasons. (2002 Bar)
a fundamental principle in customary
international law and, as such, is binding on all A: (1) Country Y may exercise the right of self-
members of the international community. defense, as provided under Article 51 of the UN
Charter “until the Security Council has taken
The action taken by the allied forces cannot be measure necessary to maintain international
justified under any of the three exceptions to the peace and security.” Self-defense enables
prohibition against the use of force which the UN Country Y to use force against Country X as well
Charter allows. These are: (1) inherent right of as against the Ali Baba organization.
individual or collective self-defense under Article
51; (2) enforcement measure involving the use of (2) It may bring the matter to the Security Council
armed forces by the UN Security Council under which may authorize sanctions against Country X,
Article 42; and (3) enforcement measure by including measure invoking the use of force.
regional arrangement under Article 53, as Under Article 4 of the UN Charter, Country Y may
authorized by the UN Security Council. The allied use force against Country X as well as against the
forces did not launch military operations and did Ali Baba organization by authority of the UN
not occupy Iraq on the claim that their action was Security Council.
in response to an armed attacked by Iraq, of
which there was none. Alternative A: Under the Security Council
Resolution No. 1368, the terrorist attack of Ali
Moreover, the action of the alleged allied forces Baba may be defined as a threat to peace, as it
was taken in defiance or disregard of the Security did in defining the 11 September 2001 attacks
Council Resolution No. 1441 which set up “an against the United States. The resolution
enhanced inspection regime with the aim of authorizes military and other actions to respond
bringing to full and verified completion the to terrorist attacks. However, the use of military
disarmament process,” giving Iraq “a final force must be proportionate and intended for the
opportunity to comply with its disarmament purpose of detaining the persons allegedly
obligations.” This resolution was in the process of responsible for the crime and to destroy military
implementation; so was Iraq’s compliance with objectives used by the terrorists.
such disarmament obligations.
The fundamental principles of international
Q: On 31 October 2001, members of Ali Baba, a humanitarian law should be respected. Country Y
political extremist organization based in and cannot be granted sweeping discretionary powers
under the protection of Country X and that include the power to decide what states are
espousing violence worldwide as a means of behind the terrorist organizations. It is for the
Security Council to decide whether force may be nuclear plan and research institute, undertook
used against specific states and under what a “preventive” attack in certain bases on State Notes:
conditions the force may be used. C located near the border of the two states. As
a result, State C presented the incident to the
Q: Is the United States justified in invading Iraq UN General Assembly but the latter referred it
invoking its right to defend itself against an to the UN Security Council as a matter, which
expected attack by Iraq with the use of its disturbs or threatens “international peace and
biological and chemical weapons of mass security”. State B argued that it was acting
destruction? within the legal bounds of Article 51 of the UN
A: The United States is invoking its right to Charter and that it was a permitted use of force
defend itself against an expected attack by Iraq in self-defense and against armed attack. Is
with the use of its biological and chemical State B responsible under International Law?
weapons of mass destruction. There is no Did State B act within the bounds set forth in
evidence of such a threat, but Bush is probably the UN Charter on the use of force in self-
invoking the modern view that a state does not defense? (1985 Bar)
have to wait until the potential enemy fires first. A: An armed attack is not a requirement for the
The cowboy from Texas says that outdrawing the exercise of the right of self-defense. However,
foe who is about to shoot is an act of self- the attack of State B on State C cannot be
defense. justified as an act of self-defense under Art. 51 of
the UN Charter considering that the danger
Art. 51 says, however, that there must first be an perceived by State B was not imminent. State B
“armed attack” before a state can exercise its ought to have exhausted peaceful and pacific
inherent right of self-defense, and only until the methods of settlements instead of resorting to the
Security Council, to which the aggression should use of force.
be reported, shall have taken the necessary
measures to maintain international peace and Q: Who can declare war?
security. It was the United States that made the A: No one! The Constitution has withheld this
“armed attack” first, thus becoming the power from the government. What the
aggressor, not Iraq. Iraq is now not only Constitution allows is a declaration of a “State of
exercising its inherent right of self-defense as War”. Under Art. VI, Sec. 23(1) – “Congress, by a
recognized by the UN Charter. (Justice Isagani A. vote of 2/3 of both Houses, in joint session
Cruz, in an article entitled “A New World Order” assembled, voting separately, shall have the sole
written in his column “Separate Opinion” power to declare the existence of a state of war.
published in the March 30, 2003 issue of the This means that we are already under attack
Philippines Daily Inquirer)
Q: What are the effects when Congress declares
Q: Will the subsequent discovery of weapons of a state of war?
mass destruction in Iraq after its invasion by the A: 1. Art. VI, Sec. 23 – “In times of war…the
US justify the attack initiated by the latter? Congress may, by law, authorize the President, for
A: Even if Iraq’s hidden arsenal is discovered – or a limited period and subject to such restrictions
actually used – and the United States is justified as it may prescribe, to exercise powers necessary
in its suspicions, that circumstance will not and proper to carry out a declared national policy.
validate the procedure taken against Iraq. It is Unless sooner withdrawn by resolution of the
like searching a person without warrant and Congress, such powers shall cease upon the next
curing the irregularity with the discovery of adjournment thereof.”
prohibited drugs in his possession. The process
cannot be reversed. The warrant must first be 2. Art. VII, Sec. 18 – “The President shall be the
issued before the search and seizure can be Commander-in-Chief of all armed forces…and
made. whenever it becomes necessary, he may call out
such armed forces to prevent or suppress…
The American invasion was made without invasion…In case, invasion…when the public safety
permission from the Security Council as required requires it, he may, for a period not exceeding 60
by the UN Charter. Any subsequent discovery of days, suspend the privilege of the writ of habeas
the prohibited biological and chemical weapons corpus or place the Philippines or any part thereof
will not retroactively legalize that invasion, which under martial law…”
was, legally speaking, null and void ab initio.
(Justice Isagani A. Cruz, in an article entitled “A ☀ This is in line with the UN Charter, which
New World Order” written in his column also renounces war
“Separate Opinion” published in the March 30, ☀ As charter-member of the UN, our
2003 issue of the Philippines Daily Inquirer) Constitution also renounces war as an
instrument of national policy
Q: State B, relying on information gathered by
its intelligence community to the effect that its RIGHTS OF SOVEREIGNTY AND INDEPENDENCE
neighbor, State C, is planning an attack on its Intervention
It is “the dictatorial interference by a State in the  There was an SC Resolution,

internal affairs of another State, or in the authorizing the US-led multilateral Notes:
relations between other States, which is either force to intervene
forcible or backed by the threat of force.”
4. On Humanitarian Grounds
Intervention is Different from “Intercession” ★ This has recently evolved by
☀ Intercession is allowed! international custom
☀ EX.: Diplomatic Protest, Tender of Advice ★ Thus, has become a primary source of
international law
Generally Intervention is Prohibited (Drago ★ EX.: 1. Intervention in Somalia
Doctrine)
★ Prohibits intervention for the collection of 2. Intervention in Bosnia and Kosovo
contractual debts, public or private  No UN Resolution, but NATO
★ Formulated by Foreign Minister Luis Drago intervened militarily
(Argentina), in reaction to the Venezuelan  Ground: There was ethnic
Incident cleansing by Serbs of ethnic
minorities
Venezuelan Incident
In 1902, UK, Germany and Italy blockaded 3. Intervention in East Timor
Venezuelan ports to compel it to pay its  Purpose: To protect the East
contractual debts leading Foreign Minister Drago Timorese
to formulate a doctrine that “ a public debt Q: At the United Nations, the Arab League,
cannot give rise to the right of intervention. This through Syria, sponsors a move to include in the
principle was later adopted in the Second Hague agenda of the General Assembly the discussion
Conference, but subject to the qualification that of this matter: “The Muslim population of
the debtor state should not refuse or neglect to Mindanao, Philippines has expressed the desire
reply to an offer of arbitration or after accepting to secede from the Republic of the Philippines
the offer, prevent any compromis from being in order to constitute a separate and
agreed upon, or after the arbitration, fail to independent state and has drawn attention to
submit to the award, the qualification is known as the probability that the continuation of the
the Porter resolution. armed conflict in Mindanao constitutes a threat
to peace.” You are asked by the Philippine
Pacific Blockade Government to draft a position paper opposing
★ one imposed during times of peace the move. Briefly outline your arguments
★ were the countries at war, then a blockade is supporting the Philippine position, specifically
a legitimate measure discussing the tenability of Arab League’s action
★ in fact, a blockade must not be violated by a from the standpoint of International Law. (1984
neutral State Bar)
★ if breached, the neutral vessel is seized A: The Muslim secessionist movement is not an
international dispute, which under Article 35(1) of
WHEN INTERVENTION ALLOWED, Exceptions the UN Charter, a member of the United Nations
1. Intervention as an Act of Individual and may bring to the attention of the Security Council
Collective Self-Defense or the General Assembly. Such dispute can arise
2. Intervention by Treaty Stipulation or by only between two or more States. The attempt of
Invitation the Arab League to place on the agenda of the
General Assembly the Muslim problem in Mindanao
“Intervention by Invitation” can only be views as an interference with a purely
★ Presupposes that the inviting State is not domestic affair.
a mere puppet of the intervening State
★ EX.: Hungary When Use of Force is Allowed under the UN
 In 1956, Hungary was in internal Charter By UNSC Resolution – Arts. 41 and 42
turmoil, and asked the Soviet forces Art. 41 – “The SC may decide what measures not
to intervene involving the use of armed force are to be
 While the intervention was upon employed to give effect to its decisions, and it
invitation, it was still condemned may call upon the Members of the UN to apply
because the Hungarian government such measures. These may include complete or
was a mere Soviet puppet partial interruption of economic relations and of
rail, sea, air, postal, telegraphic, radio, and other
3. By UN Authorization and Resolution means of communication, and the severance of
★ EX.: 1. Korean War diplomatic relations.”
 In fact, it is UN itself that intervened
Art. 42 – “Should the SC consider that measures
2. 1990 Iraqi Annexation of Kuwait provided for in Article 41 would be inadequate or
have proved to be inadequate, it may take such
action by air, sea, or land forces as may be as a threat or use of force, or amount to
necessary to maintain or restore international intervention in the internal or external affairs of Notes:
peace and security. Such action may include other States.”
demonstrations, blockade, and other operations
by air, sea, or land forces of Members of the UN.” RECOGNITION
3 LEVELS
In the exercise of right of self-defense, against A. Recognition of State
armed attacks – Art. 51: B. Recognition of Government
C. Recognition of Belligerency
“Nothing in the present charter shall impair
the inherent right of individual or collective RECOGNITION OF STATE
self-defense if an armed attack occurs against 2 Schools of Thought
a Member of the UN, until the SC has taken Constitutive School
measures necessary to maintain international - recognition is the act which gives to a
peace and security. Measures taken by political entity international status as a
Members in the exercise of this right of self- State;
defense shall be immediately reported to the - it is only through recognition that a State
SC and shall not in any way affect the becomes an International Person and a
authority and responsibility of the SC under subject of international law
the present Charter to take at any time such - thus, recognition is a legal matter—not a
action as it deems necessary in order to matter of arbitrary will on the part of
maintain or restore international peace and one State whether to recognize or refuse
security.” to recognize another entity but that
where certain conditions of fact exist, an
NOTE: There is a limited definition of armed entity may demand, and the State is
attacks – Nicargua v. United States under legal duty to accord recognition
Nicaragua v. United States Declaratory School

- recognition merely an act that declares
“195. In the case of individual self-defense, the as a fact something that has hitherto
exercise of this right is subject to the State been uncertain
concerned having been the victim of an armed - it simply manifests the recognizing
attack. Reliance on collective self-defense of State’s readiness to accept the normal
course does not remove the need for this. There consequences of the fact of Statehood
appears now to be general agreement on the - recognition is a political act, i.e., it is
nature of the acts which can be treated as entirely a matter of policy and discretion
constituting armed attacks. In particular, it may to give or refuse recognition, and that no
be considered to be agreed that an armed attack entity possesses the power, as a matter
must be understood as including not merely action of legal right, to demand recognition
by regular armed forces across an international - there is no legal right to demand
border, but also 'the sending by or on behalf of a recognition
State of armed bands, groups, irregulars or - followed by most nations
mercenaries, which carry out acts of armed force
against another State of such gravity as to amount ★ recognition of a State has now been
to' (inter alia) an actual armed attack conducted substituted to a large extent by the act
by regular forces, 'or its substantial involvement of admission to the United Nations
therein'. This description, contained in Article 3, ★ it is the “assurance given to a new State
paragraph (g), of the Definition of Aggression that it will be permitted to hold its place
annexed to General Assembly resolution 3314 and rank in the character of an
(XXIX), may be taken to reflect customary independent political organism in the
international law. The Court sees no reason to society of nations”
deny that, in customary law, the prohibition of
armed attacks may apply to the sending by a
State of armed bands to the territory of another Q: Explain, using example, the Declaratory
State, if such an operation, because of its scale Theory of Recognition Principle. (1991 Bar)
and effects, would have been classified as an A: The declaratory theory of recognition is a
armed attack rather than as a mere frontier theory according to which recognition of a state is
incident had it been carried out by regular armed merely an acknowledgment of the fact of its
forces. But the Court does not believe that the existence. In other words, the recognized state
concept of 'armed attack' includes not only acts by already exists and can exist even without such
armed bands where such acts occur on a recognition. For example, when other countries
significant scale but also assistance to rebels in recognize Bangladesh, Bangladesh already existed
the form of the provision of weapons or logistical as a state even without such recognition.
or other support. Such assistance may be regarded
Q: Distinguish briefly but clearly between the

constitutive theory and the declaratory theory Tobar or Wilson Doctrine Notes:
concerning recognition of states. (2004 Bar) ☀ suggested by Foreign Minister Tobar
A: The constitutive theory is the minority view (Ecuador); reiterated by President
which holds that recognition is the last element Woodrow Wilson (US)
that converts or constitutes the entity being ☀ recognition is withheld from governments
recognized into an international person; while the established by revolutionary means –
declaratory theory is the majority view that revolution, civil war, coup d’etat, other
recognition affirms the pre-existing fact that the forms of internal violence, UNTIL, freely
entity being recognized already possesses the elected representatives of the people
status of an international person. In the former have organized a constitutional
recognition is regarded as mandatory and legal government
and may be demanded as a matter of right by any
entity that can establish its possession of the four Estrada Doctrine
essential elements of a state; while the latter ☀ a reaction to the Tobar/Wilson Doctrine;
recognition is highly political and discretionary. formulated by Mexican Foreign Minister
Genaro Estrada
☀ disclaims right of foreign states to rule
upon legitimacy of a government of a
foreign State
☀ a policy of never issuing any declaration
RECOGNITION OF GOVERNMENT giving recognition to governments –
instead, it simply accepts whatever
Recognition of Recognition of government is in effective control
Government State without raising the issue of recognition
As to Scope Does not Includes
necessarily recognition or Q: Distinguish briefly but clearly between the
signify that government – Wilson doctrine and the Estrada doctrine
recognition of a government an regarding recognition of governments. (2004
State – to essential Bar)
government may element of a A: In the Wilson or Tobar doctrine, a government
not be State established by means revolution, civil war, coup
independent d’ etat or other forms of internal violence will not
As to Revocable Generally, be recognized until the freely elected
Revocabilit irrevocable representatives of the people have organized a
y constitutional government, while in the Estrada
doctrine any diplomatic representatives in a
Q: Distinguish recognition of State from country where an upheaval has taken place will
recognition of Government. (1975 Bar) deal or not deal with whatever government is in
A: (1) Recognition of state carries with it the control therein at the time and either action shall
recognition of government since the former not be taken as a judgment on the legitimacy of
implies that a state recognized has all the the said government.
essential requisites of a state at he time
recognition is extended. Kinds of Recognition
Recognition De Jure Recognition
(2) Once recognition of state is accorded, it is De Facto
As to Relatively Provisional,
generally irrevocable. Recognition of
government, on the other hand, may be withheld Duration permanent
As to Brings about full Limited to
from a succeeding government brought about by
violent or unconstitutional means. Effect on diplomatic certain
Diplomatic relations/intercourse juridical
Criteria for Recognition Relations relations;
for
1. Objective Test –
★ government should be EFFECTIVE and instance, it
does not
STABLE
bring about
★ government is in possession of State
diplomatic
machinery
immunities
★ there is little resistance to its authority
As to Vests title to Does not
Effect on recognized vest such
2. Subjective Test –
Properties government in title
★ WILLINGNESS and ABILITY
Abroad properties abroad
★ the government is willing and able to
discharge its international obligations
Recognition De Jure
★ 2 Doctrines
★ Given to a government that satisfies both the issues beyond the Court’s jurisdiction the
objective and subjective criteria determination of which is exclusively for the Notes:
President…We cannot, for example, question the
Recognition De Facto President’s recognition of a foreign government,
★ Given to governments that have not fully no matter how premature or improvident such
satisfied objective and subjective criteria action may appear...”
★ EX.: While wielding effective power, it might
have not yet acquired sufficient stability ICMC vs. Calleja
[GR 85750, 28 Sept. 1990]
Consequences of Recognition of Government
1. The recognized government or State acquires
the capacity to enter into diplomatic A categorical recognition by the Executive Branch
relations with recognizing States and to make that ICMC enjoy immunities…is a political question
treaties with them conclusive upon the Courts in order not to
2. The recognized government or State acquires embarrass a political department of Government.
the right of suing in the courts of law of the
recognizing State BELLIGERENCY
3. It is immune from the jurisdiction of the 2 Senses of Belligerency
courts of law of recognizing State 1. State of War between 2 or more States
4. It becomes entitled to demand and receive ☀ Belligerency
possession of property situated within the ☀ the States at war are called “Belligerent
jurisdiction of a recognizing State, which States”
formerly belonged to the preceding
government at the time of its supercession 2. Actual Hostilities amounting to Civil War
5. Its effect is to preclude the courts of within a State
recognizing State from assign judgment on ☀ Insurgency
the legality of its acts, past and future. ☀ there is just 1 State
Recognition being retroactive. ☀ presupposes the existence of a rebel
movement
 Thus, Act of State Doctrine now applies
Developments in a Rebel Movement
Q: Who has the authority to recognize? Stage of Insurgency
A: It is a matter to be determined according to ★ Earlier/nascent/less-developed stage of
the municipal law of each State. In the rebellion
Philippines, there is no explicit provision in the ★ There is not much international complication
Constitution which vests this power in any ★ Matter of municipal law
department. But since under the Constitution, ★ EX.: Captured rebels are prosecuted for
the President is empowered to appoint and rebellion
receive ambassadors and public ministers, it is
conceded that by implication, it is the Executive Stage of Belligerency
Department that is primarily endowed with the ★ A higher stage, as the stage of insurgency
power to recognize foreign governments and becomes widespread
States. [Art. VII, 1987 Constitution] ★ Already a matter of international law, not of
municipal law
The legality and wisdom of recognition accorded ★ EX.: Captures rebels – must be treated like
any foreign entity is not subject to judicial prisoners of war; considered as combatants;
review. The courts are bound by the acts of hence, cannot be executed
political department of the government. The
action of the Executive in recognizing or refusing Insurgency Belligerency
to recognize a foreign State or government is a mere initial stage of more serious and
properly within the scope of judicial notice. war. It involves a rebel widespread and
movement, and is presupposes the
Q: Is the recognition extended by the President usually not recognized existence of war
to a foreign government subject to judicial between 2 or more
review? states (1st sense) or
A: NO! It is purely a political question. actual civil war within
a single state (2nd
Marcos v. Manglapus sense)
[GR 88211 15 Sept. 1989]
The Constitution limits resort to the political

question doctrine and broadens the scope of
judicial inquiry…But nonetheless there remain
sanctions are governed governed by the rules able to maintain such control and conduct
by municipal law – on international law as themselves according to the laws of war. For Notes:
Revised Penal Code, the belligerents may example, Great Britain recognized a state of
i.e. rebellion be given international belligerency in the United States during the Civil
personality War.
Consequences of Recognition of Belligerents

1. Before recognition as such, it is the
Note: Abu Sayaff is not a rebel group it is a mere legitimate government that is responsible for
bandit group. the acts of the rebels affecting foreign
nationals and their properties. Rebel
Requisites of Belligerency [COWS] government is responsible for the acts of the
1. an organized civil government that has rebels affecting foreign nationals and
control and direction over the armed struggle properties;
launched by the rebels; 2. Laws and customs of war in conducting the
★ a “provisional government” hostilities must be observed;
★ EX.: cannot execute captured rebels,
2. occupation of a substantial portion of the considered as POWs
state’s territory; 3. From the point of view of 3 rd States, the
★ more or less permanent occupation effect of recognition of belligerency is to put
★ legitimate government must use superior them under obligation to observe strict
military force to dislodge the rebels neutrality and abide by the consequences
arising from that position.
3. seriousness of the struggle, which must be so ★ must observe Laws of Neutrality
widespread thereby leaving no doubt as to ★ EX.:
the outcome; and 1. must abstain from taking part in the
★ must be so widespread, leaving no doubt hostilities;
as to the outcome 2. most acquiesce to restrictions
★ Q: Has the CPP/NPA and MILF complied imposed by the rebels, such as visit
with these conditions? and search of its merchant ships
A: NO! BUT, there are some indications 4. Rebels are enemy combatants and accorded
they are striving to meet the conditions. the rights of prisoners of war. and
They executed common criminals, after a ★ essentially, this means that there are 2
trial. It is like saying they have a competing governments in 1 country
government 5. On the side of the rebels, the recognition of
belligerency puts them under responsibility to
Note: The maintenance of peace and order, and 3rd States and to the legitimate government
administration of justice, are constituent for all their acts which do not conform to the
functions of the government laws and customs of war.
★ Camp Abu-Bakr—MILF almost had control FORMS OF RECOGNITION

of a substantial portion of territory 1. Express
★ government had to use all its military 2. Implied
might and divert its budget
★ CPP/NPA sends message that they are EX.; Proclamation by the legitimate
government of a blockade of ports held by
observing the Laws of War
the rebels
★ Captured soliders are announced as
POWs; had Red Cross representatives
★ Done by Lincoln during the American Civil
War
4. willingness on the part of the rebels to
★ Q: What about peace talks?
observe the rules and customs of war.
A: NOT implied recognition. But,
Q: Explain, using example, recognition of circumstances may be such as to become
belligerency. (1991 Bar) an implied recognition
A: Recognition of belligerency is the formal EX.: Holding peach talks in a foreign
acknowledgment by a third party of the existence country. Rebels call the foreign country
of a state of war between the central government a “neutral state”. If a mere insurgency,
and a portion of that state. Belligerency exists it is a purely internal matter – no need
when a sizable portion of the territory of a state for talks abroad
is under the effective control of an insurgent
community which is seeking to establish a
separate government and the insurgents are in de TERRITORY OF STATES
facto control of a portion of the territory and Territory Defined
population, have a political organization, and are Characteristics of Territory
Modes of Acquisition of Territory ★ Q: Today, few, if any places are terra

(1) Dereliction/Abandonment nullius. Why is this mode then important? Notes:
(2) Cession A: Past occupations are source of modern
(3) Conquest/Subjugation boundary disputes
(4) Prescription ★ Q: When is a territory “terra nullius?”
(5) Erosion A: Under the Old Concept a territory is not
(6) Revolution necessarily uninhabited! A territory is terra
(7) Natural Causes nullius, if, even if occupied, the people
COMPONENTS OF TERRITORY occupying it has a civilization that falls below
(1) Territorial Domain the European standard. This was the
(2) Maritime and Fluvial Domain justification for the Spanish colonization of
a. Territorial Sea the Philippines, and the European
b. Contiguous Zone colonization of Africa. However, this old
c. Exclusive Economic Zone (EEZ) concept is no longer valid under
d. Continental Shelf contemporary international law!
e. High Seas
(3) Aerial Domain ★ 2 REQUISITES
a. Air Space (1) Discovery/Possession
b. Outer Space ☀ Mere discovery gives only an
b. Inchoate Right of Discovery
Territory ☀ Q: What is the effect of this right?
- the fixed and permanent portion on the A: It bars other states, within a
earth’s surface inhabited by the people reasonable time, from entering the
of the state and over which it has territory, so that the discovering
supreme authority state may establish a settlement
- consists of the portion of the surface of therein an commence administration
the globe on which that State settles and and occupation. Once the
over which it has supreme authority discovering state begins exercising
- an exercise of sovereignty, covering not sovereign rights over the territory,
only land, but also the atmosphere as the inchoate right ripens and is
well perfected into a full title
CHARACTERISTICS OF TERRITORY ☀ Q: What if the discovering state

1. Permanent fails to exercise sovereign rights?
2. Definite/Indicated with Precision A: The inchoate title is extinguished,
★ Generally, the territory’s limits define and the territory becomes terra
the State’s jurisdiction nullius again.
3. Big enough to sustain the population
4. Not so extensive as to be difficult to: ☀ Q: How is this done and effected?
(1) Administer; and A: Possession must be claimed on
(2) Defend from external aggression behalf of the State represented by
the discoverer. It may then be
Modes of Acquisition of Territory effected through a formal
(1) By Original Title proclamation and the symbolic act of
a. Discovery and Occupation raising the state’s national flag.
b. Accretion
c. “Sector Principle” 2. Effective Occupation
(2) By Derivative Title ☀ Does not necessarily require
a. Prescription continuous display of authority in
b. Cession every part of the territory claimed
c. Conquest/Subjugation ☀ Authority must be exercised as and
when occasion demands
Other Modes ☀ Thus, when the territory is thinly
(a) Dereliction/Abando populated and uninhabited, very
nment little actual exercise of sovereign
(b) Erosion rights is needed in the absence of
(c) Revolution competition
(d) Natural Causes
Doctrine of Effective Occupation
Discovery and Occupation ☀ discovery alone gives only an
★ An original mode of acquisition of territory inchoate title; it must be followed
belonging to no one – “terra nullius” within a reasonable time by
★ land to be acquired must be terra nullius effective occupation
☀ effective occupation does not - the ceding State is absorbed by the

necessarily require continuous acquiring State and ceases to exist Notes:
display of authority in every part of - EX.: Cession of Korea to Japan under the
the territory claimed 22 Aug. 1910 Treaty
☀ an occupation made is valid only
with respect to and extends only to 2. Partial Cession
the area effectively occupied. - comprises only a fractional portion of the
☀ under the “Principle of Effective ceding State’s territory
Occupation,” the following - cession of the Philippine Islands by Spain
doctrines/principles are no longer to the US in the Treaty of Paris of 10 Dec.
applicable today: 1988
- Forms:
a) Hinterland Doctrine a) Treaty of Sale
Occupation of coasts results to claim EX.: (1) Sale by Russia of Alaska to US
on the unexplored interior (2) Sale by Spain of Caroline
Islands to Germany
b) Right of Contiguity b) Free Gifts
Effective occupation of a territory EX: (1) Cession of a portion of the
makes the possessor’s sovereignty Horse-Shoe Reef in Lake
extend over neighboring territories Erie
as far as is necessary for the by UK to US
integrity, security and defense of the
land actually occupied Conquest
★ derivative mode of acquisition whereby the
Prescription territory of 1 State is conquered in the course
★ acquisition of territory by an averse holding of war and thereafter annexed to and placed
continued through a long term of years under the sovereignty of the conquering State
★ derivative mode of acquisition by which ★ the taking possession of hostile territory
territory belonging to 1 State is transferred to through military force in time of war and by
the sovereignty of another State by reason of which the victorious belligerent compels the
the adverse and uninterrupted possession enemy to surrender sovereignty of that
thereof by the latter for a sufficiently long territory thus occupied
period of time ★ acquisition of territory by force of arms
★ 2 REQUISITES ★ however, conquest alone merely gives an
a) continuous and undisturbed possession inchoate right; acquisition must be completed
☀ Q: What if there are claims or by formal act of annexation
protests to the State’s possession? ★ no longer regarded as lawful
A: NOT undisturbed! ★ UN Charter prohibits resort to threat or use of
force against a State’s territorial integrity or
b) lapse of a period of time political independence
☀ No rule as to length of time required
☀ Question of fact Conquest is Different from “Military or
Belligerent Occupation”
★ Q: What is the source of this right? ☀ Act whereby a military commander in the
A: Roman principle of “usucapio” (long course of war gains effective possession
continued use of real property ripened into of an enemy territory
ownership) ☀ By itself, does not effect an acquisition
of territory
Cession
★ a derivative mode of acquisition by which Accretion
territory belonging to 1 State is transferred to ★ the increase in the land area of a State
the sovereignty of another State in caused by the operation of the forces of
accordance with an agreement between them nature, or artificially, through human labor
★ a bilateral agreement whereby one State ★ Accessio cedat principali (accessory follows
transfers sovereignty over a definite portion the principal) is the rule which, in general,
of territory to another State governs all the forms of accretion.
E.g. Treaty of cession (maybe an outcome of ★ EX.: (1) Reclamation projects in Manila Bay
peaceful negotiations [voluntary] or the (2) Polders of the Netherlands
result of war[forced])
★ 2 KINDS: COMPONENTS OF TERRITORY
1. Total Cession TERRITORIAL DOMAIN
- comprises the entirety of 1 State’s ★ The landmass where the people live
domain
Internal Waters
★ These are bodies of water within the land  In peacetime, freedom of navigation
boundaries of a State, or are closely linked to is allowed or recognized by Notes:
its land domain, such that they are conventional international law
considered as legally equivalent to national
land Lakes and Land-locked Seas
★ includes: rivers, lakes and land-locked seas, ☀ If entirely enclosed by territory of 1 state:
canals, and polar regions. Part of that State’s territory
☀ If surrounded by territories of several States:
Rivers Part of the surrounding States
☀ Kinds of Rivers Canals
(1) National Rivers ☀ Artificially constructed waterways
☀ GR: Belongs to the State’s territory
 Lie wholly within 1 State’s territorial ☀ XPN: Important Inter-Oceanic Canals
domain – from source to mouth governed by Special Regime
 Belongs exclusively to that State (1) Suez Canal
 EX.: Pasig River (2) Panama Canal
Historic Waters
(2) Boundary Rivers ☀ Waters considered internal only because of
 Separates 2 Different States existence of a historic title, otherwise, should
 Belongs to both States: not have that charater
 If river is navigable – the ☀ EX.: Bay of Cancale in France
boundary line is the middle of
MARITIME AND FLUVIAL DOMAIN
the navigable channel “thalweg”
Zones of the Sea
 If the river is not navigable – the
- Waters adjacent to the coasts of a State to a
boundary line is the midchannel
specified limit
 EX.: St. Lawrence River between US
and Canada
1. Territorial Sea
★ comprises in the marginal belt adjacent
(3) Multinational Rivers
to the land area or the coast and
 Runs through several States
includes generally the bays, gulfs and
 Forms part of the territory of the straights which do not have the character
States through which it passes of historic waters (waters that are
 EX.: Congo River, Mekong River legally part of the internal waters of the
(4) International Rivers State)
 navigable from the open sea, and ★ portion of the open sea adjacent to the
which separate or pass through State’s shores, over which that State
several States between their sources exercises jurisdictional control
and mouths ★ Basis – necessity of self-defense
★ Effect – territorial supremacy over the
territorial sea, exclusive enjoyment of
fishing rights and other coastal rights
★ BUT: Subject to the RIGHT OF INNOCENT
PASSAGE (a foreign State may exercise its
right of innocent passage)
★ Q: When is passage innocent?
A: When it is not prejudicial to the
peace, good order, or security of the
coastal State
Right of Innocent Passage

The right of continuous and expeditious navigation
of a foreign shop through a State’s territorial sea
for the purpose of traversing that sea without
entering the internal waters or calling at a
roadstead or port facility outside the internal
waters, or proceeding to or from internal waters
or a call at such roadstead or port facility
Q: Explain Innocent Passage. (1991 Bar)

A: Innocent passage means the right of continuous
and expeditious navigation of a foreign ship
through the territorial sea of a State for the
purpose of traversing that sea without entering
the internal waters or calling at a roadstead or A: The line on the shore reached by the
port facility outside internal water or proceeding sea at low tide. Otherwise known as the Notes:
to or from internal waters or a call at such “baseline.”
roadstead or port facility. The passage is innocent
so long as it is not prejudicial to the peace, good 2. Straight Baseline Method
order or security of the coastal State. ☀ A straight line is drawn across the sea,
from headland to headland, or from
Extent and Limitations of Right of Innocent island to island. That straight line then
Passage becomes the baseline from which the
☀ Extends to ALL ships – merchant and warships territorial sea is measured.
☀ Submarines must navigate on the surface and ☀ Q: What happens to the waters inside
show their flag the line?
☀ Nuclear-powered ships, ships carrying nuclear A: Considered internal waters. However,
and dangerous substances must carry the baseline must not depart to any
documents and observe special safety appreciable extent from the general
measures direction of the coast
☀ Q: When is this used?
Q: En route to the tuna fishing grounds in the A: When the coastline is deeply
Pacific Ocean, a vessel registered in Country TW indented, or when there is a fringe of
entered the Balintang Channel north of Babuyan islands along the coast in its immediate
Island and with special hooks and nets dragged vicinity.
up red corrals found near Batanes. By
International Convention certain corals are Distinguish briefly but clearly between the
protected species. Just before the vessel territorial sea and the internal waters of the
reached the high seas, the Coast Guard patrol Philippines. (2004 Bar)
intercepted the vessel and seized its cargo Territorial water is defined by historic right or
including tuna. The master of the vessel and the treaty limits while internal water is defined by
owner of the cargo protested, claiming the the archipelago doctrine. The territorial waters,
rights of transit passage and innocent passage, as defined in the Convention on the Law of the
and sought recovery of the cargo and the Sea, has a uniform breadth of 12 miles measured
release of the ship. Is the claim meritorious or from the lower water mark of the coast; while the
not? Reason briefly. (2004 Bar) outermost points of our archipelago which are
A: The claim of the master of the vessel and the connected with baselines and all waters
owner of the cargo is not meritorious. Although comprised therein are regarded as internal
their claim of transit passage and innocent waters.
passage through the Balintang Channel is tenable
under the 1982 Convention on the Law of the Sea, 2. Contiguous Zone
the fact that they attached special hooks and nets ★ zone adjacent to the territorial sea, over
to their vessel which dragged up red corrals is which the coastal State may exercise such
reprehensible. The Balintang Channel is control as is necessary to:
considered part of our internal waters and thus is  Prevent infringement of its customs,
within the absolute jurisdiction of the Philippine fiscal, immigration or sanitary laws
government. Being so, no foreign vessel, within its territory or territorial sea;
merchant or otherwise, could exploit or explore  Punish such infringement
any of our natural resources in any manner of ☀ extends to a maximum of 24 nautical miles
doing so without the consent of our government. from the baseline from which the territorial
sea is measured.
Q: What is the extent of the territorial sea?
A: 1. Formerly, 3 nautical miles from the low 3. Exclusive Economic Zone
water mark based on the theory that this is all ☀ a maximum zone of 200 nautical miles from
that a State could defend. This has been the baseline from which the territorial sea is
practically abandoned. measured, over which, the coastal State
exercises sovereign rights over all the
2. 1982 Convention of the Law of the Sea provides economic resources of the sea, sea-bed and
the maximum limit of 12 nautical miles from the subsoil
baseline.
Rights of other States in the EEZ
Q: What is the baseline? (a) Freedom of navigation and overflight
A: Depends on the method: (b) Freedom to lay submarine cables and
1. Normal Baseline Method pipelines
☀ Territorial sea is drawn from the low- (c) Freedom to engage in other internationally
water mark. lawful uses of the sea related to said
☀ Q: What is the low-water mark? functions
Rights of Land-locked States measured where the outer edge of the continental
Right to participate, on an equitable basis, in the shelf does not extend up to that distance. Notes:
exploitation of an appropriate part of the surplus
of the living resources of the EEZ of the coastal Rights of the Coastal State
States of the same sub-region or region ☀ sovereign rights for the purpose of
exploring and exploiting its natural
Distinguish briefly but clearly between the resources
contiguous zone and exclusive economic zone. ☀ rights are exclusive – if the State does
(2004 Bar) not explore or exploit the continental
The contiguous zone is the area which is known as shelf, no one may do so without its
the protective jurisdiction and starts from 12th express consent
nautical mile from low water mark (baseline),
while the EEZ is the area which ends at the 200th
nautical mile from the baseline. In the latter, no Archipelagic Doctrine
state really has exclusive ownership of it but the  2 Kinds of Archipelagos:
state which has a valid claim on it according to 1. Coastal Archipelago
the UN Convention on the Law of the Seas ☀ situated close to a mainland, and
agreement has the right to explore and exploit its may be considered part of such
natural resources; while in the former the coastal mainland
state may exercise the control necessary to a)
prevent infringement of its customs, fiscal 2. Mid-Ocean Archipelago
immigration or sanitary regulations within its ☀ groups of islands situated in the
territory b) punish infringement of the above ocean at such distance from the
regulations within its territory or territorial sea. coasts of firm land (mainland)
☀ EX.: Philippines
Q: Enumerate the rights of the coastal state in  emphasizes the unity of land and waters
the exclusive economic zone. (2005, 2000 Bar) by defining an archipelago either as:
A: The following are the rights of the coastal state  A group of island surrounded by
in the exclusive economic zone: waters; or
1. sovereign rights for the purpose of exploring  A body of water studded with islands
and exploiting, conserving and managing the  thus, baselines are drawn by connecting
living and non-living resources in the the appropriate points of the outermost
superjacent waters of the sea-bed and the islands to encircle the islands within the
resources of the sea-bed and subsoil; archipelago.
2. sovereign rights with respect to the other
activities for the economic exploitation and Rules Governing the Baselines
exploration of the zone or EEZ, such as (a) Such baselines should not depart radically
production of energy from water, currents from the general direction of the coast, or
and winds; from the general configuration of the
3. jurisdictional right with respect to archipelago
establishment and use of artificial islands; (b) Within the baselines are included the main
4. jurisdictional right as to protection and islands an area with a maximum water area
preservation of the marine environment; and to land area ratio of 9:1
5. jurisdictional right over marine scientific (c) Length of baselines shall not exceed 1—
research nautical miles
6. other rights and duties provided for in the  XPN: Up to 3% of the total number of
Law of the Sea Convention. (Article 56, Law
baselines may have a maximum length of
of the Sea Convention)
125 nautical miles
These treaty provisions form part of the Philippine
Effect of the Baselines
Law, the Philippines being a signatory to the
(a) The waters inside the baselines are
UNCLOS.
considered internal waters;
(b) The territorial sea, etc. are measured from
4. Continental Shelf
such baselines;
Q: Explain the meaning of continental shelf.
(c) Archipelagic State exercises sovereign rights
(1991 Bar)
over all the waters enclosed by the baselines
A: The continental shelf comprises the seabed and
subsoil of the submarine areas that extend beyond
Limitation – Archipelagic Sealanes
the territorial sea throughout the natural
☀ Archipelagic State must designate sea lands
prolongation of its land territory to the outer edge
an air route for the continuous and
of the continental margin; or to a distance of
expeditious passage of foreign ships and
more than 200 nautical miles from the baselines
aircraft through or over its archipelagic
form which the breadth of the territorial sea is
waters and adjacent territorial sea
 Passage only for continuous,

expeditious, and unobstructed Doctrine of Hot Pursuit Notes:
transit between 1 part of the high ☀ The pursuit of a foreign vessel undertaken by
seas or an EEX to another part of the the coastal State which has “good reason to
high seas or an EEZ believe that the ship has violated the laws
 Q: What if none are designated? and regulations of that State.”
A: Right of archipelagic sealane ☀ The pursuit must:
passage may still be exercised 1. Be commenced when the ship is within the
through the routes normally used for pursuing State’s:
international navigation a. Internal Waters;
b. Territorial Sea; or
 The Philippines adheres to the c. Contiguous Zone
Archipelagic Doctrine – Art. I, 1987 2. May be continued outside such waters if the
Constitution: pursuit has not been interrupted
“The waters around, between, and 3. Continuous and unabated
connecting the islands of the 4. Ceases as soon as the foreign ship enters the
archipelago, regardless of their breadth territorial sea of:
and dimensions, form part of the internal a. Its own State; or
waters of the Philippines.” b. That of a 3rd State
5. Be undertaken by:
 Also embodied in the 1982 Convention of a. Warships; or
the Law of the Sea, Art. 47 b. Military aircraft; or
 UNCLOS became effective on 16 Nov. c. Other ships/aircraft cleared and
1994, after its ratification by more than identifiable as being in the government
the required 60 of the signatory States service and authorized to that effect
☀ Also applies to violations of laws and
Q: What do you understand by the archipelagic regulations of the coastal State applicable to
doctrine? Is this reflected in the 1987 the EEZ and to the continental shelf.
Constitution? (1989, 1979, 1975 Bar)
A: The archipelagic doctrine emphasizes the unity Deep Sea Bed
of land and waters by defining an archipelago ☀ The sea-bed beyond the continental shelf
either as a group of islands surrounded by waters ☀ Under the UNCLOS – resources of the deep
or a body of water with studded with islands. For sea-bed are reserved as the “common
this purpose, it requires that baselines be drawn heritage of mankind”
by connecting the appropriate points of the
outermost islands to encircle the islands within Q: In the Pacific Ocean, while on its way to
the archipelago. The waters on the landward side Northern Samar to load copra, a Norweigian
of the baselines regardless of breadth, or freighter collides with Philippine Luxury Liner
dimensions are merely internal waters. resulting in the death of ten (10) Filipino
passengers. Upon the Norweigian vessel’s
Article I, Sec. 1 of the Constitution provides that arrival in Catarman, Northern Samar, the
the national territory of the Philippines includes Norweigian captain and the helmsman assisting
the Philippine archipelago, with all the islands were arrested and charged with multiple
and waters embraced therein; and the waters homicide through reckless imprudence. Apart
around, between, and connecting the islands of from filing a protest with the Ministry of Foreign
the archipelago, regardless of their breadth and Affairs, the Norweigian Embassy, through a local
dimensions form part of the internal waters of the counsel helps the accused in filing a motion to
Philippines. quash. It is pointed out that the incident
happened on the high seas, the accused were
5. The regime of the High Seas on board a Norweigian vessel and only a
★ belongs to everyone and to no one – both res Norweigian court can try the case even if the
commones and res nullius death occurred on a Philippine ship. Resolve
★ everyone may enjoy the following rights over the motion stating the reason for your decision.
(1986 Bar)
the high seas:
A: The motion to quash should be sustained. In
(a) Navigation
the Lotus case [PCIJ Pub 198i2 Series A No 10
(b) Fishing
p.25], a French mail steamer, Lotus, collided with
(c) Scientific research
a Turkish collier, Boz Kourt. As a result, eight (8)
(d) Mining
Turkish subjects died. The collision took place in
(e) Laying of submarine cables or
the Aegean Sea, outside of Turkish territorial
pipelines; and
waters. The Lotus proceeded to Constantinople
(f) other human activities in the open
where its officers were tried and convicted for
sea and the ocean floor
manslaughter. The French government protested
★ the freedoms extend to the air space above
on the ground that Turkey had no jurisdiction over
the high seas
an act committed on the high seas by foreigners state. (Harris, Cases and Materilas on
on board foreign vessels whose flag state has International Law, 5th ed., 1998, p. 425.) Notes:
exclusive jurisdiction as regards such acts. The
dispute was referred by agreement to the AERIAL DOMAIN
Permanent Court of International Justice which ★ the airspace above the territorial and
held in a split decision that Turkey had “not acted maritime domains of the State, to the limits
in conflict with the principles of International of the atmosphere
Law,” because the act committed produced ★ does not include the outer space
affects on board the Boz Kourt under Turkish flag,
and thus on Turkish territory. The principle that 1. Air Space
vessels on the high seas are subject to no ★ the air space above the State’s terrestrial and
authority except that the flag State whose flag maritime territory
they fly was thus affirmed. ★ “…Every State has complete and exclusive
sovereignty over the air space above its
NOTE: Justice Jorge Coquia, in his book however, territory”
opined that the ruling in the Lotus case is no ★ Convention on International Civil Aviation
longer controlling in view of Art. 97 of the UN –“Territory” – includes terrestrial and
Convention on the Law of the Sea which provides maritime territory
that in the event of collision or any other incident ★ thus, includes air space above territorial sea
of navigation concerning a ship on the high seas, ★ NOTE: NO right of innocent passage!
involving the penal or disciplinary responsibility of ★ the air space above the high seas is open to
the master or any other person in the service of all aircraft, just as the high seas is accessible
the ship, the penal or disciplinary proceedings to ships of all States
may be instituted only before State of which such - the State whose aerial space is violated
person is a national. For this purpose, no arrest can take measures to protect itself, but
or detention of the ship, even as a measure of it does not mean that States have an
navigation shall be ordered by the authorities unlimited right to attack the intruding
other than those of the flag state. aircraft (intruding aircraft can be
ordered either to leave the State’s air
Freedom of Navigation space or to land)
the right to sail ships on the seas which is open to
all States and land-locked countries Q: What are the 5 air freedoms?
A:
General Rule: vessels sailing on the high seas are (a) overflight without landing;
subject only to international law and the laws of (b) landing for non-traffic purposes;
the flag state (c) put down traffic from state to airline;
(d) embark traffic destined for state of
Exceptions: a) foreign merchant ships aircraft; and
violating the laws of the coastal State; b) (e) embark traffic or put down traffic to or
pirate ships; c) slave trade ships; d) any ship from a third state
engaged in unauthorized broadcasting; and e)
ships without nationality, or flying a false flag 2. Outer Space (res commones)
or refusing to show its flag. ★ the space beyond the airspace surrounding
the earth or beyond the national airspace,
Flag State which is completely beyond the sovereignty
the State whose nationality (ship’s registration) of any State
the ship possesses, for it is nationality which gives ★ the moon and the other celestial bodies form
the right to fly a country’s flag part of the outer space (Moon Treaty of 1979)
★ thus, it is not subject to national
Flags of Convenience – appropriation
registration of any ship in return for a payment ★ free for all exploration and use by all States
fee and cannot be annexed by any State
★ governed by a regime similar to that of the
Q: Distinguish briefly but clearly between the high seas
flag state and the flag of convenience. (2004
Bar) Treaty on Principles Governing the Activities of
A: Flag state means a ship has the nationality of States in the Exploration and Use of Outer Space
the flag state it flies, but there must be a genuine (Outer Space Treaty)
link between the state and the ship. (Article 91 of ☀ Outer Space is free for exploration and use by
the Convention of the Law of the Sea.) Flag of States
convenience refers to a state with which a vessel ☀ Cannot be annexed by any State
is registered for various reasons such as low or ☀ Its use and exploration must be carried out
non-existent taxation or low operating costs for the benefit of all countries and in
although the ship has no genuine link with that accordance with international law
☀ Celestial bodies shall be used exclusively for covers astronauts and cosmonauts. This matter is
peaceful purposes covered by the Registration of Objects in Space Notes:
☀ Nuclear weapons and weapons of mass Convention of 1974 and the Liability for Damage
destruction shall not be placed in orbit Caused by Spaced Objects Convention of 1972.
around the earth
Q: May the USA lay exclusive claim over the
Q: What is the boundary between the air space moon, having explored it and having planted
and the outer space? her flag therein to the exclusion of other states?
A: No accepted answer yet! There are different Explain. (1979 Bar)
opinions: A: No, because the outer space and celestial
1. That it should be near the lowest altitude bodies found therein including the moon are not
(perigee) at which artificial earth satellites susceptible to the national appropriation but
can remain in orbit without being destroyed legally regarded as res communes.
by friction with the air around 190 km from
earth’s surface
2. Theoretical limit of air flights is 90 km above

the earth
3. Functional Approach
 The legal regime governing space
activities are based, not on a boundary
line, but on the nature of the activities
Q: What is outer space? Who or which can THE UNITED NATIONS

exercise jurisdiction over astronauts while in
outer space? (2003 Bar) The United Nations
A: There are several schools of thought regarding Formation of the United Nations
the determination of outer space, such as the Purpose of United Nations
limit of air flight, the height of atmospheric Principles of United Nations
space, infinity, the lowest altitude of an artificial Membership
satellite, and an altitude approximating Principal Organs
aerodynamic lift. Another school of thought Privileges and Immunities of the United Nations
proceeds by analogy to the law of the sea. It
proposes that a State should exercise full ¯°º°¯
sovereignty up to the height to which an aircraft
can ascend. Non-militant flight instrumentalities THE UNITED NATIONS
should be allowed over a second area, a It is an international organization created at the
contiguous zone of 300 miles. Over that should be San Francisco Conference which was held in the
outer space. The boundary between airspace and United States from April 25 to June 26, 1945. The
outer space has not yet been defined. (Harris, U.N., as it is commonly called, succeeded the
Cases and Materials on International Law, 5 th Ed., League of Nations and is governed by a Charter
pp. 251-253) Under Article 8 of the Treaty on the which came into force on October 24, 1945.
Principles Governing the Activities of States in the composed originally of only 51 members, the UN
Exploration and Use of Outer Space, Including the has grown rapidly to include most of the states in
Moon and Other Celestial Bodies, a State on whose the world.
registry an object launched into outer space
retains jurisdiction over the astronauts while they Who was the advocate of forming the UN?
are in outer space. In his famous Fourteen Points for the peace
settlement, Woodrow Wilson called for the
Alternative A: Outer space is the space beyond establishment of a “general association of nations
the airspace surrounding the Earth or beyond the for world peace under specific covenants for
national airspace. In law, the boundary between mutual guarantees of political independence and
outer space and airspace has remained territorial integrity to large and small States
undetermined. But in theory, this has been alike.” And so, the League of Nations was
estimated to be between 80 to 90 kilometers. formed.
Outer space in this estimate begins from the
lowest altitude an artificial satellite can remain in Who coined the name UN?
orbit. Under the Moon Treaty of 1979, the moon It was President Roosevelt who suggested early in
and the other celestial bodies form part of outer 1942 the name UN for the group of countries
space. which were fighting the Axis powers.
In outer space, the space satellites or objects are What are the principal purposes of the UN?
under the jurisdiction of States of registry which 1. To maintain international peace and security
2. To develop friendly relations among nations The Charter is silent regarding withdrawal of
3. To achieve international cooperation in membership. In 1985, Indonesia withdrew its Notes:
solving international economic, social, membership from the UN and it was not
cultural and humanitarian problems compelled to remain. Subsequently, upon
4. To promote respect for human rights President Sukarno’s overthrow, Indonesia resumed
5. To be a center of harmonizing the actions of its membership, which was accepted by the UN.
nations towards those common goals.
The Principal Organs
What are the principles of the UN? 1. General Assembly (GA)
1. All its members are equal and all are 2. Security Council (SC)
committed to fulfill in good faith their 3. Economic and Social Council (ESC)
obligations under the Charter 4. Trusteeship Council (TC)
2. To settle their disputes with each other by 5. International Court of Justice (ICJ)
peaceful means 6. Secretariat
3. To refrain form the threat or use of force in
their international relations Subsidiary Organs – those which was created by
4. To refrain from assisting any State against the Charter itself or which it allows to be created
which the UN is taking preventive or whenever necessary by the SC or GA.
enforcement action. 1. Little Assembly – Interim Committee, created
in 1947 for a term of one eyar and re-
2 Kinds of Membership established in 1949 for an indefinite term.
a. Original Composed of one delegate for each member-
b. Elective – those subsequently admitted upon state, it meets when the General Assembly is
the recommendation of the UN Security Council. in recess and assists this body in the
performance of its functions.
Qualifications for Membership 2. Military Staff Committee
1. Must be State 3. Human Rights Commission
2. Must be Peace-loving 
3. Must accept the obligations as member Specialized Agencies – not part of the UN, but
4. In the judgment of the Organization, be have been brought into close contact with it
able and willing to carry out such because of their purposes and functions, such as:
obligation. 1. World Health Organization
2. International Monetary Fund
How is Admission conducted? 3. Technical Assistance Board
1. Recommendation of a qualified majority in
the Security Council Proposals for Amendments to the UN Charter
- The affirmative vote of at least 9 and Ratification
members including the Big 5. 2 ways of adopting proposals:
2. Approval of the General Assembly (GA) by a a. directly, by 2/3 votes of all GA members
vote of at least 2/3 of those present and b. by 2/3 of a general conference called for this
voting. purpose by 2/3 of the GA and any 9 members of
the SC.
Note: Both SC and GA votes must be complied
with. Any amendment thus proposed shall be subject to
ratification by at least 2/3 of the GA, including
Suspension of Membership the permanent members of the SC.
Suspension may occur when a preventive or
enforcement action has been taken by the SC. ¯°º°¯
The SC may, by a qualified majority, recommend
suspension to the GA who shall in turn concur with UN General Assembly
a 2/3 vote of those present and voting.
This is the central organ of the UN. The principal
Discipline does not suspend the member’s deliberative body of the organization and is
obligations but only the exercise of its rights and vested with jurisdiction over matters concerning
privileges as a member. Only the SC may lift the the internal machinery and operations of the UN.
suspension by a qualified majority.
GA Composition
Expulsion of a Member Consists of all the members of the UN. Each
The penalty of expulsion may be imposed upon a member is entitled to send no more than 5
member which has persistently violated the delegates and 5 alternates and as many technical
principles in the UN Charter. Same voting and other personnel as it may need.
requirement as to suspension. The reason for this system of multiple delegates is
to enable the members to attend of several
Withdrawal of Membership – Indonesia Case meetings that may be taking place at the same
time in the different organs or committees of the through resolutions passed in plenary meetings,
Organization. usually towards the end of the regular session, Notes:
after the committees have completed their
However, each delegation is entitled only to one consideration of them and submitted draft
vote in the decisions to be made by the GA. resolutions to the plenary Assembly.
GA Sessions Voting in Committees is by a simple majority. In

1. Regular sessions – every year beginning the plenary meetings, resolutions may be adopted by
third Tuesday of September. acclamation, without objection or without a vote,
2. Special sessions – may be called at the or the vote may be recorded or taken by roll-call.
request of the SC, a majority of the member While the decisions of the Assembly have no
states, or one member with the concurrence legally binding force for governments, they carry
of the majority. the weight of world opinion, as well as the moral
3. Emergency special session – may be called authority of the world community.
within 24 hours at the request of the SC by
vote of any 9 members or by a majority of the The work of the UN year-round derives largely
members of the UN. from the decisions of the General Assembly - that
is to say, the will of the majority of the members
Some Important Functions of the GA as expressed in resolutions adopted by the
1. Deliberative – discuss principles regarding Assembly. That work is carried out:
maintenance of international peace and a. by committees and other bodies established
security and may take appropriate measures by the Assembly to study and report on
toward this end. specific issues, such as disarmament,
2. Supervisory – receives and considers reports peacekeeping, development and human
from the other organs of the UN. rights;
3. Elective – important voting functions are also b. in international conferences called for by the
vested in the GA, such as the election of the Assembly; and
non-permanent members of the SC, some c. by the Secretariat of the UN - the Secretary-
members of the TC and all the members of General and his staff of international civil
the ESC, and with the SC selects the judges of servants.
the ICJ; also participates in the amendment
of the Charter. ¯°º°¯
4. Budgetary – controls the finances of the UN
5. Constituent – amendment of the charter. UN Security Council
GA Voting Rules An organ of the UN primarily responsible for the

Each member or delegation has 1 vote in the GA. maintenance of international peace and security.
Important Questions are decided by 2/3 majority Their responsibility makes the SC a key influence
of those present and voting. All other matters, in the direction of the affairs not only of the
including the determination of whether a question Organization but of the entire international
is important or not, are decided by simple community as well.
majority.
Important Questions include: SC Functions and Powers:
a) peace and security 1. to maintain international peace and security
b) membership in accordance with the principles and
c) election purposes of the UN;
d) trusteeship system 2. to investigate any dispute or situation which
e) budget mightlead to international friction;
3. to recommend methods of adjusting such
disputes or the terms of settlement;
GA Main Committees 4. to formulate plans for the establishment of a
Most questions are then discussed in its six main system to regulate armaments;
committees: 5. to determine the existence of a threat to the
 1st Committee - Disarmament & peace or act of aggression and to recommend
International Security what action should be taken;
 2nd - Economic & Financial 6. to call on Members to apply economic
 3rd - Social, Humanitarian & Cultural sanctions and other measures not involving
the use of force to prevent or stop
 4th - Special Political & Decolonization
aggression;
 5th - Administrative & Budgetary
7. to take military action against an aggressor;
 6th - Legal 8. to recommend the admission of new
Members;
Some issues are considered only in plenary 9. to exercise the trusteeship functions of the
meetings, while others are allocated to one of the UN in "strategic areas"; and
six main committees. All issues are voted on
10. to recommend to the General Assembly the c. the participation of states parties to a dispute
appointment of the Secretary-General and, in the discussion of the SC. Notes:
together with the Assembly, to elect the
Judges of the International Court of Justice. Substantial matters include those that may
require the SC under its responsibility of
SC Composition maintaining or restoring world peace to invoke
Composed of 15 members, 5 of which are measures of enforcement.
permanent. The so-called Big Five are China,
France, the European Union, the United Kingdom, What is the role of a Member of the UN but not
and the United States. a member of the Security Council?
Although not a member of the SC, it may
The other ten members are elected for 2-year participate (without vote) in the discussion of any
terms by the GA, 5 from the African and Asian question before the Council whenever the latter
states, 1 from Eastern European states, 2 from feels that the interests of that member are
Latin American states, and 2 from Western specially affected. Such member is likewise to
European and other states. Their terms have be invited by the Council to participate (without
been so staggered as to provide for the retirement vote)in the discussion of any dispute to which the
of ½ of them every year. Member is a party.
These members are not eligible for immediate re- Q: Loolapalooza conducted illegal invasion and
election. conquest against Moooxaxa. The UN Security
Council called for enforcement action against
Chairmanship of the SC is rotated monthly on the Loolapalooza. Does enforcement action include
basis of the English alphabetical order of the sending of fighting troops?
names of the members. A: NO. Compliance with the resolution calling for
enforcement action does not necessarily call for
SC Sessions the sending of fighting troops. There must be a
The SC is required to function continuously and to special agreement with the SC before sending of
hold itself in readiness in case of threat to or fighting troops may be had and such agreement
actual breach of international peace. For this shall govern the numbers and types of forces,
purpose, all members should be represented at all their degree of readiness and general locations,
times at the seat of the Organization. and the nature of the facilities and assistance to
be supplied by UN members.
SC Voting Rules
Each member of the SC has 1 vote, but distinction International Court of Justice
is made between the permanent and the non-
permanent members in the decision of substantive International Court of Justice
questions. Composition
Qualifications
Yalta Voting Formula Jurisdiction
a. Procedural matters – 9 votes of any of SC Functions of International Court of Justice
members Procedure
b. Substantive matters – 9 votes including 5
permanent votes. ¯°º°¯
No member, permanent or not, is allowed to vote International Court of Justice
on questions concerning the pacific settlement of The International Court of Justice is the principal
a dispute to which it is a party. judicial organ of the United Nations. Its seat is at
the Peace Palace in The Hague (Netherlands). It
Rule of Great-Power Unanimity: a negative vote began work in 1946, when it replaced the
by any permanent member on a non-procedural Permanent Court of International Justice which
matter, often referred to as “veto”, means had functioned in the Peace Palace since 1922. It
rejection of the draft resolution or proposal, even operates under a Statute largely similar to that of
if it has received 9 affirmative votes. its predecessor, which is an integral part
- Abstention or absence of a member is not of the Charter of the United Nations.
regarded as veto
ICJ Composition and Qualifications
Procedural and Substantive Matters The Court is composed of 15 judges elected to
Distinguished nine-year terms of office by the United Nations
Procedural matters include: General Assembly and Security Council sitting
a. questions relating to the organization and independently of each other. It may not include
meetings of the Council; more than one judge of any nationality. Elections
b. the establishment of subsidiary organs; and are held every three years for one-third of the
seats, and retiring judges may be re-elected. The four persons and not more than two of whom
Members of the Court do not represent their shall be of their own nationality. Notes:
governments but are independent magistrates. 2. Candidates obtaining an absolute
majority in the GA and SC are considered
QUALIFICIATIONS OF JUDGES elected. In the event that more than 1
1. They must be of high moral character; national of the same state obtain the
2. Possess the qualifications required in requisite majorities in both bodies, only the
their respective countries for appointment to eldest is chosen.
the highest judicial office or are jurists of 3. In cases when membership is not
recognized competence in international law; completed by the regular elections, a joint
and conference shall be convened. If this still
3. As much as possible, they must represent fails, the judges elected shall fill the
the main forms of civilization and the remaining vacancies.
principal legal systems of the world.
ICJ Sessions
When the Court does not include a judge The Court shall remain permanently in session at
possessing the nationality of a State party to a the Hague or elsewhere as it may decide, except
case, that State may appoint a person to sit as a during the judicial vacations the dates and
judge ad hoc for the purpose of the case. duration of which it shall fix.
ICJ Jurisdiction Procedure in the ICJ

The Court is competent to entertain a dispute The procedure followed by the Court in
only if the States concerned have accepted its contentious cases is defined in its Statute, and in
jurisdiction in one or more of the following ways: the Rules of Court adopted by it under the
a. by the conclusion between them of a special Statute. The latest version of the Rules dates
agreement to submit the dispute to the from 5 December 2000. The proceedings include
Court; a written phase, in which the parties file and
b. by virtue of a jurisdictional clause, i.e., exchange pleadings, and an oral phase consisting
typically, when they are parties to a treaty of public hearings at which agents and counsel
containing a provision whereby, in the event address the Court. As the Court has two official
of a disagreement over its interpretation or languages (English and French) everything written
application, one of them may refer the or said in one language is translated into the
dispute to the Court. Several hundred treaties other.
or conventions contain a clause to such
effect; or After the oral proceedings the Court deliberates
c. through the reciprocal effect of declarations in camera and then delivers its judgment at a
made by them under the Statute whereby public sitting. The judgment is final and without
each has accepted the jurisdiction of appeal. Should one of the States involved fail to
the Court as compulsory in the event of a comply with it, the other party may have recourse
dispute with another State having made a to the Security Council.
similar declaration. The declarations T
of 65 States are at present in force, a number The Court discharges its duties as a full court but,
of them having been made subject to the at the request of the parties, it may also establish
exclusion of certain categories of dispute. a special chamber. A Chamber of Summary
Procedure is elected every year by the Court in
In cases of doubt as to whether the Court has accordance with its Statute. In July 1993 the
jurisdiction, it is the Court itself which decides. Court also established a seven-member Chamber
to deal with any environmental cases falling
Term of Office within its jurisdiction
Term of 9 years, staggered at three year year
intervals by dividing the judges first elected into ICJ Voting Rules
three equal groups and assigning them by lottery All questions before the Court are decided by a
terms of three, six and nine years respectively. majority of the judges present, the quorum being
Immediate re-election is allowed. The President nine when it is sitting en banc. In case of tie, the
and the Vice President elected by the Court for President or his substitute shall have a casting
three years, may also be re-elected. Terms of vote.
office of 5 of the 15 members shall expire at the
end of every 3 years. Rule for Inhibition of Judges
No judge may participate in the decision of a case
How members of ICJ are chosen in which he has previously taken part as agent,
1. Nomination made by national groups in counsel or advocate for one of the parties, or as a
accordance with the Hague Conventions of member of a national or international court, or of
1907. No group shall nominate more than a commission of injury, or in any other capacity.
Functions of ICJ parties. Therefore, a private individual like A

The principal functions of the Court are: cannot bring an action before it. Notes:
2. to decide contentious case; and
3. to render advisory opinions. Q: May the United States be sued in our courts for
the value of private properties requisitioned by its
Who may file contentious cases? Army during the last World War, as well as Japan
Only states can file contentious cases and both for the “Mickey Mouse” money in payment for
must agree to the court’s jurisdiction. Only States private properties, which have not been
may apply to and appear before the Court. The redeemed until now? May the suit be brought to
Member States of the United Nations (at present the ICJ? (1979 Bar)
numbering 191) are so entitled. A: No! Even foreign states are entitled to the
 Article 34(1): Only states may be parties doctrine of state immunity in the local state. The
in cases before the Court. suit may not be brought before the ICJ without
 2. Article 36(1): The jurisdiction of the the consent of the United States as jurisdiction of
Court comprises all cases which the parties the ICJ in contentious cases is based upon the
refer to it and all matters specially provided consent of the parties.
for in the Charter of the UN or in treaties and
conventions in force. Q: The State of Nova, controlled by an
authoritarian government, had unfriendly
Advisory Opinions relations with its neighboring state, America;
The advisory procedure of the Court is open solely Bresia, another neighboring state, had been
to international organizations. The only bodies at shipping arms and ammunitions to Nova for use
present authorized to request advisory opinions of in attacking America. To forestall am attack,
the Court are five organs of the United Nations and America placed floating mines on the territorial
16 specialized agencies of the United Nations waters surrounding Nova. America supported a
family. group of rebels organized to overthrow the
government of Nova and to replace it with a
friendly government. Nova decided to file a
On receiving a request, the Court decides which case against America in the International Court
States and organizations might provide useful of Justice.
information and gives them an opportunity of 1) What grounds may Nova’s cause of
presenting written or oral statements. The Court's action against America be based?
advisory procedure is otherwise modelled on that 2) On what grounds may America move to
for contentious proceedings, and the sources of dismiss the case with the ICJ?
applicable law are the same. In principle the 3) Decide the case. (1994 Bar)
Court's advisory opinions are consultative in
character and are therefore not binding as such on A: 1) If Nova and America are members of the UN,
the requesting bodies. Certain instruments or Nova can premise its cause of action on a
regulations can, however, provide in advance that violation of Art. 2(4) of the UN Charter, which
the advisory opinion shall be binding. requires members to refrain from threat or use of
force against the territorial integrity of political
 Only organizations can request advisory independence of any state. If either or both
opinions [Article 65(1)]: The Court may give America and Nova are not members of the UN,
an advisory opinion on any legal question at Nova may premise its cause of action of violation
the request of whatever body may be of the non-use of force principle in customary
authorized by or in accordance with the international law which exist parallel as to Art.
Charter of the UN to make such a request. 2(4) of the UN Charter.
 There is no rule of stare decisis. In the case concerning the Military and
Parliamentary activities in and against Nicaragua
Q: A, a citizen of State X, was arrested and (1986 ICJ Report 14), the International Court of
detained for several years without charges or Justice considered the planting mines by one
trial. He brings his case to the courts of State state within the territorial waters of another as a
X, but to no avail. He desires to seek redress violation of Art. 2(4) of the UN Charter. If the
from any international forum. He goes to you support provided by America to rebels of Nova
as counsel to file his case with the International goes beyond the mere giving of monetary or
Court of Justice. Will the action prosper? psychological support but consist in the provision
(1978 Bar) of arms and training, the acts of America can be
A: No! Only States may be parties in contentious considered as indirect aggression amount to
cases before the International Court of Justice. In another violation of Art. 2(4).
fact, only States which are parties to the statute
of the ICJ and other states on conditions to be In addition, even if the provision of support is not
laid down by the Security Council may be such enough to consider the act a violation of the non-
use of force principle, this is a violation of the
principle of non-intervention in customary 3) Under Art. 39 of the Statute of ICJ, the official
international law. languages of the Court are English and French. In Notes:
the absence of an agreement, each party may use
Aggression is the use of armed force by a state the language it prefers. At the request of any
against the sovereignty or territorial integrity or party, the Court may authorize a party to use a
political independence of another state or in any language other than English or French.
other manner inconsistence with the UN Charter. 4) Under Art. 51 of the Statute of ICJ, whenever
one of the parties does not appear before the
2) By virtue of the principle of sovereign court or fails to defends its case, the other party
immunity, no sovereign state can be made a party may ask the Court to decide in favor of its claim.
to a proceeding before the ICJ unless it has given However, the Court must, before doing so, satisfy
its consent. If America has not accepted the itself that it has jurisdiction and that the claim is
jurisdiction of the ICJ, it can invoke the defense well-founded in fact and in law.
of lack of jurisdiction. Even if it has accepted the
jurisdiction of the ICJ but the acceptance limited PIMENTEL, JR., v. OFFICE OF THE EXECUTIVE
and the limitation applies to the case, it may SECRETARY
invoke such limitations of its consent as a bar to 462 SCRA 622, 6 July 2005
the assumption of jurisdiction. En Banc, Garcia J.
If the jurisdiction has been accepted, America can
involve the principle of anticipatory self-defense This is a petition for mandamus to compel the
recognized under customary international law Office of the Executive Secretary and the
because Nova is planning to launch an attack Department of Foreign Affairs to transmit the
against America by using the arms it brought from signed copy of the Rome Statute of the
Bresia. International Criminal Court to the Senate of the
Philippines for its concurrence in accordance with
3) If jurisdiction over America is established, the §21, Article VII of the 1987 Constitution.
case should be decided in favor of Nova, because
America violated the principle against the use of The Rome State of the International Criminal
force and the principle of non-intervention. The Court
defense of anticipatory self-defense cannot be The Rome Statute established the International
sustained because there is no showing that Nova Criminal Court which “shall have the power to
had mobilized to such an extent that if America exercise its jurisdiction over person for the most
were to wait for Nova to strike first it would not serious crimes of international concern x x x and
be able to retaliate. shall be complementary to the national criminal
jurisdictions.” (Article I, Rome Statute) Its
However, if jurisdiction over America is not jurisdiction covers the crime of genocide, crimes
established, the case should be decided in its against humanity, war crimes, and the crime of
favor because of the principle of sovereign aggression as defined in the Statute (Article 5,
immunity. Rome Statute). The Statute was opened for
signature by all states in Rome on July 17, 1988
Q: The sovereignty over certain island is and had remained open for signature until
disputed between State A and State B. These December 31, 2000 at the United Nations
two states agreed to submit their disputes to Headquarters in New York. The Philippines signed
the ICJ. the Statute on December 28, 2000 through Charge
1) Does the ICJ have the jurisdiction to d’ Affairs Enrique A. Manalo of the Philippine
take cognizance of the case? Mission to the United Nations. Its provisions,
2) Who shall represent the parties before however, require that it be subject to ratification,
the Court? acceptance or approval of the signatory states
3) What language shall be used in the (Article 25, Rome Statute).
pleading and the oral arguments?
4) In case State A, the petitioner fails to
Issues
appear at the oral argument, can State
B, the respondent, move for the It is the theory of the petitioners that ratification
dismissal of the action? (1994 Bar) of a treaty, under both domestic law and
A: 1) The ICJ has jurisdiction because the parties international law, is a function of the Senate.
have jointly submitted the case to it and have Hence, it is the duty of the executive department
thus indicated their consent to its jurisdiction. to transmit the signed copy of the Rome Statute
2) Parties to a case may appoint agents to appear to the Senate to allow it to exercise its discretion
before the ICJ in their behalf, and these agents with respect to ratification of treaties. Moreover,
need not be their own nationals. However, under petitioners submit that the Philippines has a
Art. 16 of the Statute of ICJ, no member of the ministerial duty to ratify the Rome Statute under
Court may appear as agent in any case. treaty law and customary international law.
Petitioners invoke the Vienna Convention on the
Law of Treaties enjoining the states to refrain
from acts which would defeat the object and institution.”[Del Mar vs. Philippine Amusement
purpose of a treaty when they have signed the and Gaming Corporation, 346 SCRA 485 (2000)] Notes:
treaty prior to ratification unless they have made Thus, legislators have the standing to maintain
their intention clear not to become parties to the inviolate the prerogatives, powers and privileges
treaty (Article 18, Vienna Convention on the Law vested by the Constitution in their office and are
of Treaties). allowed to sue to question the validity of any
official action which they claim infringes their
prerogatives as legislators. The petition at bar
invokes the power of the Senate to grant or
On Locus Standi of Petitioners
withhold its concurrence to a treaty entered into
The petition at bar was filed by Senator Aquilino by the executive branch, in this case, the Rome
Pimentel, Jr. who asserts his legal standing to file Statute. The petition seeks to order the
the suit as member of the Senate; Congresswoman executive branch to transmit the copy of the
Loretta Ann Rosales, a member of the House of treaty to the Senate to allow it to exercise such
Representatives and Chairperson of its Committee authority. Senator Pimentel, as member of the
on Human Rights; the Philippine Coalition for the institution, certainly has the legal standing to
Establishment of the International Criminal Court assert such authority of the Senate.
which is composed of individuals and corporate
entities dedicated to the Philippine ratification of
the Rome Statute; the Task Force Detainees of the The Substantive Issue
Philippines, a juridical entity with the avowed The core issue in this petition for mandamus is
purpose of promoting the cause of human rights whether the Executive Secretary and the
and human rights victims in the country; the Department of Foreign Affairs have a ministerial
Families of Victims of Involuntary Disappearances, duty to transmit to the Senate the copy of the
a juridical entity duly organized and existing Rome Statute signed by a member of the
pursuant to Philippine Laws with the avowed Philippine Mission to the United Nations even
purpose of promoting the cause of families and without the signature of the President.
victims of human rights violations in the country;
Bianca Hacintha Roque and Harrison Jacob Roque, We rule in the negative.
aged two (2) and one (1), respectively, at the
time of filing of the instant petition, and suing In our system of government, the President, being
under the doctrine of inter-generational rights the head of state, is regarded as the sole organ
enunciated in the case of Oposa vs. Factoran, Jr. and authority in external relations and is the
224 SCRA 792 (1993) and a group of fifth year country’s sole representative with foreign
working law students from the University of the nations(Cortes, The Philippine Presidency: A
Philippines College of Law who are suing as Study of Executive Power (1966), p. 187) As the
taxpayers. chief architect of foreign policy, the President
acts as the country’s mouthpiece with respect to
Xxx international affairs. Hence, the President is
vested with the authority to deal with foreign
We find that among the petitioners, only Senator states and governments, extend or withhold
Pimentel has the legal standing to file the instant recognition, maintain diplomatic relations, enter
suit. The other petitioners maintain their into treaties, and otherwise transact the business
standing as advocates and defenders of human of foreign relations [Cruz, Philippine Political Law
rights, and as citizens of the country. They have (1996 Ed.), p. 223] . In the realm of treaty-
not shown, however, that they have sustained or making, the President has the sole authority to
will sustain a direct injury from the non- negotiate with other states.
transmittal of the signed text of the Rome Statute
to the Senate. Their contention that they will be Nonetheless, while the President has the sole
deprived of their remedies for the protection and authority to negotiate and enter into treaties, the
enforcement of their rights does not persuade. Constitution provides a limitation to his power by
The Rome Statute is intended to complement requiring the concurrence of 2/3 of all the
national criminal laws and courts. Sufficient members of the Senate for the validity of the
remedies are available under our national laws to treaty entered into by him. xxx
protect our citizens against human rights
violations and petitioners can always seek redress The participation of the legislative branch in the
for any abuse in our domestic courts. treaty-making process was deemed essential to
provide a check on the executive in the field of
As regards Senator Pimentel, it has been held that foreign relations (Cortes, supra note 12, p. 189).
“to the extent the powers of Congress are By requiring the concurrence of the legislature in
impaired, so is the power of each member the treaties entered into by the President, the
thereof, since his office confers a right to Constitution ensures a healthy system of checks
participate in the exercise of the powers of that and balance necessary in the nation’s pursuit of
political maturity and growth [Bayan vs. Zamora, the government other than that which
342 SCRA 449 (2000)]. negotiated them. Notes:
In filing this petition, the petitioners interpret xxx

Section 21, Article VII of the 1987 Constitution to
mean that the power to ratify treaties belongs to The last step in the treaty-making process is the
the Senate. exchange of the instruments of ratification,
which usually also signifies the effectivity of the
We disagree. treaty unless a different date has been agreed
upon by the parties. Where ratification is
Justice Isagani Cruz, in his book on International dispensed with and no effectivity clause is
Law, describes the treaty-making process in this embodied in the treaty, the instrument is deemed
wise: effective upon its signature [Cruz, International
Law (1998 Ed.), pp. 172-174]. [emphasis supplied]
The usual steps in the treaty-making process are:
negotiation, signature, ratification, and exchange Petitioners’ arguments equate the signing of the
of the instruments of ratification. The treaty may treaty by the Philippine representative with
then be submitted for registration and publication ratification. It should be underscored that the
under the U.N. Charter, although this step is not signing of the treaty and the ratification are two
essential to the validity of the agreement as separate and distinct steps in the treaty-making
between the parties. process. As earlier discussed, the signature is
primarily intended as a means of authenticating
the instrument and as a symbol of the good faith
Negotiation may be undertaken directly by the of the parties. It is usually performed by the
head of state but he now usually assigns this task state’s authorized representative in the
to his authorized representatives. These diplomatic mission. Ratification, on the other
representatives are provided with credentials hand, is the formal act by which a state confirms
known as full powers, which they exhibit to the and accepts the provisions of a treaty concluded
other negotiators at the start of the formal by its representative. It is generally held to be an
discussions. It is standard practice for one of the executive act, undertaken by the head of the
parties to submit a draft of the proposed treaty state or of the government (Bayan vs. Zamora,
which, together with the counter-proposals, supra note 15). Thus, Executive Order No. 459
becomes the basis of the subsequent issued by President Fidel V. Ramos on November
negotiations. The negotiations may be brief or 25, 1997 provides the guidelines in the
protracted, depending on the issues involved, and negotiation of international agreements and its
may even “collapse” in case the parties are ratification. It mandates that after the treaty has
unable to come to an agreement on the points been signed by the Philippine representative, the
under consideration. same shall be transmitted to the Department of
Foreign Affairs. The Department of Foreign Affairs
If and when the negotiators finally decide on the shall then prepare the ratification papers and
terms of the treaty, the same is opened for forward the signed copy of the treaty to the
signature. This step is primarily intended as a President for ratification. After the President has
means of authenticating the instrument and for ratified the treaty, the Department of Foreign
the purpose of symbolizing the good faith of the Affairs shall submit the same to the Senate for
parties; but, significantly, it does not indicate concurrence. Upon receipt of the concurrence of
the final consent of the state in cases where the Senate, the Department of Foreign Affairs
ratification of the treaty is required. The shall comply with the provisions of the treaty to
document is ordinarily signed in accordance with render it effective. xxx
the alternat, that is, each of the several
negotiators is allowed to sign first on the copy Xxx
which he will bring home to his own state.
Petitioners’ submission that the Philippines is
Ratification, which is the next step, is the formal bound under treaty law and international law to
act by which a state confirms and accepts the ratify the treaty which it has signed is without
provisions of a treaty concluded by its basis. The signature does not signify the final
representatives. The purpose of ratification is to consent of the state to the treaty. It is the
enable the contracting states to examine the ratification that binds the state to the provisions
treaty more closely and to give them an thereof. In fact, the Rome Statute itself requires
opportunity to refuse to be bound by it should that the signature of the representatives of the
they find it inimical to their interests. It is for states be subject to ratification, acceptance or
this reason that most treaties are made subject approval of the signatory states. Ratification is
to the scrutiny and consent of a department of the act by which the provisions of a treaty are
formally confirmed and approved by a State. By 4. Universality Principle

ratifying a treaty signed in its behalf, a state Exemptions from Jurisdiction Notes:
expresses its willingness to be bound by the Doctrine of Sovereign Immunity
provisions of such treaty. After the treaty is signed Act of State Doctrine
by the state’s representative, the President, being Right of Legation
accountable to the people, is burdened with the Classes of Heads of Missions
responsibility and the duty to carefully study the Diplomatic Corps
contents of the treaty and ensure that they are Privileges and Immunities
not inimical to the interest of the state and its Letter of Credence
people. Thus, the President has the discretion Functions of Diplomatic Representatives
even after the signing of the treaty by the Waiver of Diplomatic Immunity and Privileges
Philippine representative whether or not to ratify Duration of Immunity
the same. The Vienna Convention on the Law of Termination of Diplomatic Relation
Treaties does not contemplate to defeat or even Consular Immunity
restrain this power of the head of states. If that 2 Kinds of Consuls
were so, the requirement of ratification of Consular Privileges and Immunities
treaties would be pointless and futile. It has been
held that a state has no legal or even moral duty ¯°º°¯
to ratify a treaty which has been signed by its
plenipotentiaries [Salonga and Yap, Public BASES OF JURISDICTION
International Law (5th Edition), p. 138]. There is A. Territoriality Principle
no legal obligation to ratify a treaty, but it goes ☀ all persons, property, transactions and
without saying that the refusal must be based on occurrences within the territory of a
substantial grounds and not on superficial or State are under its jurisdiction, as well as
whimsical reasons. Otherwise, the other state over certain consequences produced
would be justified in taking offense (Cruz, within the territory by persons acting
International Law, supra note 16, p.174). outside it.
☀ vests jurisdiction in state where offense
was committed
It should be emphasized that under our
☀ Art. 14, NCC
Constitution, the power to ratify is vested in the
President, subject to the concurrence of the
EXTRATERRITORIAL JURISDICTION –
Senate. The role of the Senate, however, is
☀ often claimed by States with respect to
limited only to giving or withholding its consent,
so-called continuing offenses where the
or concurrence, to the ratification (Bayan vs.
commission of the crime has started in
Zamora, supra note 15). Hence, it is within the
one State and is consummated in
authority of the President to refuse to submit a
another. Under such situation, both
treaty to the Senate or, having secured its consent
states have jurisdiction.
for its ratification, refuse to ratify it (Cruz,
International Law, supra note 16, p.174).
Q: What is the meaning or concept of
Although the refusal of a state to ratify a treaty
extraterritoriality? (1977 Bar)
which has been signed in its behalf is a serious
A: The term “extraterritoriality has been used to
step that should not be taken lightly (Salonga and
denote the status of a person or things physically
Yap, supra note 18), such decision is within the
present on a State’s territory, but wholly or partly
competence of the President alone, which cannot
withdrawn from the State’s jurisdiction” by a rule
be encroached by this Court via a writ of
of international law.
mandamus. This Court has no jurisdiction over
actions seeking to enjoin the President in the
Note: The concept of extraterritoriality is already
performance of his official duties. [See Severino
obsolete.
vs. Governor-General, 16 Phil. 366 (1910)]. The
Court, therefore, cannot issue the writ of
Q: Distinguish “exTERritoriality” and
mandamus prayed for by the petitioners as it is
“exTRAterritoriality.”
beyond its jurisdiction to compel the executive
A:
branch of the government to transmit the signed
exTERritoriality exTRAterritoriality
text of Rome Statute to the Senate.
exception of persons used to denote the
and property from local status of a person or
jurisdiction on basis of things physically
international customs present on a State’s
Jurisdiction of States territory, but wholly or
partly withdrawn from
Bases of Jurisdiction the State’s jurisdiction”
1. Territoriality Principle by a rule of
2. Nationality Principle international law
3. Protective Principle
Q: How can the observance of our law on ☀ vest jurisdiction in state which has
national theory be enforced upon individuals, custody of offender of universal crimes Notes:
and upon states? (1979 Bar) ☀ piracy, genocide
A: All persons within our national territory are
subject to the jurisdiction of the Philippines, with Q: A Filipino owned construction company with
certain exceptions like heads and diplomatic principal office in Manila leased an aircraft
agents of foreign states. registered in England to ferry construction
workers to the Middle East. While on a flight to
States are required under international law, Saudi Arabia with Filipino crew provided by the
specifically under Article II, paragraph 4 of the UN lessee, the aircraft was highjacked by drug
Charter, to respect the territorial integrity of traffickers. The hijackers were captured in
other states. Any encroachments upon our Damaseus and sent to the Philippines for trial.
territory, for example, by a foreign vessel, may be Do courts of Manila have jurisdiction over the
punished under our own laws, or by sanctions case? (1981 Bar)
allowed under the generally accepted principles A: Yes. Hijacking is actually piracy, defined in
of international law. People vs. Lol-lo, 43 Phil 19 as robbery or forcible
depredation in the high seas without lawful
Q: A crime was committed in a private vessel authority and done animo furandi and in the spirit
registered in Japan by a Filipino against an and intention of universal hostility.
Englishman while the vessel is anchored in a
port of State A. Where can he be tried? (1979 Piracy is a crime against all mankind. Accordingly,
Bar) it may be punished in the competent tribunal if
A: Under both the English and French rules, the any country where the offender may be found or
crime will be tried by the local state A, if serious into which he may be carried.
enough as to compromise the peace of its port;
otherwise by the flag state, Japan if it involves The jurisdiction on piracy unlike all other crimes
only the members of the crew and is of such a has no territorial limits. As it is against all, all so
petty nature as not to disturb the peace of the may punish it. Nor does it matter that the crime
local state. was committed within the jurisdictional 3-mile
limit of a foreign state for those limits, though
B. Nationality Principle neutral to war, are not neutral to crimes.
☀ a State may punish offenses committed
by its nationals anywhere in the world. DOCTRINE OF SOVEREIGN IMMUNITY
☀ vest jurisdiction in state of offender
Under this doctrine, a state enjoys immunity from
☀ Art. 15, NCC; tax laws the exercise of jurisdiction by another state. The
courts of one state may not assume jurisdiction
C. Protective Principle over another state.
☀ States claim extraterritorial criminal
jurisdiction to punish crimes committed
abroad which are prejudicial to their Restrictive Application of the Doctrine of State
national security or vital interests, even Immunity
where the offenses are perpetrated by Q: The Republic of Balau opened and operated
non-nationals. in Manila an office engaged in trading of Balau
☀ vest jurisdiction in state whose national products with the Philippine products. In one
interests is injured or national security transaction, the local buyer complained that the
compromised Balau goods delivered to him were substandard
☀ counterfeiting, treason, espionage and he sued the Republic of Balau before the
RTC of Pasig for damages. (1996 Bar)
Q: Explain the Protective Personality Principle. a) How can the Republic of Balau invoke its
(1991 Bar) sovereign immunity? Explain.
A: Protective Personality Principle is the principle b) Will such defense of sovereign immunity
on which the State exercise jurisdiction over the prosper? Explain.
acts of an alien even if committed outside its
territory, if such acts are adverse to the interest A: a) By filing a motion to dismiss in accordance
of the national state. with Section 1 (a) Rule 16 of the Rules of Court on
the ground that the court has no jurisdiction over
D. Universality Principle its person.
☀ A State has extraterritorial jurisdiction
over all crimes regardless of where they According to the case of Holy See vs. Rosario, in
are committed or who committed them, Public International Law, when a state wishes to
whether nationals or non-nationals. This plead sovereign immunity in a foreign court, it
is, however, generally considered as requests the Foreign office of the state where it is
forbidden. being sued to convey to the court that it is
entitled to immunity. In the Philippines, the
practice is for the foreign government to first must be set up, otherwise, it will be barred.
secure an executive endorsement of its claim of Above all, as held in Froilan vs. Pan Oriental Notes:
immunity. In some case, the defense of sovereign Shipping Co. 95 Phil 905, by filing a complaint, the
immunity is submitted directly to the local court state of Indonesia waived its immunity from suit.
by the foreign state through counsel by filing a It is not right that it can sue in the courts of the
motion to dismiss on the ground that the court has Philippines if in the first place it cannot be sued.
no jurisdiction over its person. The defendant therefore acquires the right to set
up a compulsory counterclaim against it.
b) No. The sale of Balau products as a contract
involves a commercial activity. As held by the However, The Court of Appeals should grant the
Supreme Court in the case of USA vs. Ruiz and USA petition of the Indonesian Government insofar as
vs. Guinto, it was stated that a foreign state it sought to annul the garnishment of the funds of
couldn’t invoke immunity from suit if it enters Indonesia, which were deposited in the PNB and
into a commercial contract. The Philippines BPI.
adheres to restrictive Sovereign Immunity.
Consent to the exercise of jurisdiction of a foreign
In February 1990, the Ministry of the Army, court does not involve waiver of the separate
Republic of Indonesia, invited for a bid for the immunity from execution. (You can look but you
supply of 500,000 pairs of combat boots for the can’t touch.)
use of the Indonesian Army. The Marikina Shoe
Corporation, a Philippine Corporation, which Thus as held in the case of Dexter vs. Carpenters,
has a branch office and with no assets in P2d 705, it was held that consent to be sued does
Indonesia, submitted a bid to supply 500,000 not give consent to the attachment of the
pairs of combat boots at $30 per pair delivered property of sovereign government.
in Jakarta on or before October 1990. The
contract was awarded by the Ministry of the Exemptions from Jurisdiction
Army to Marikina Shoe Corporation and was 1. Doctrine of State Immunity;
signed by the parties in Jakarta. Marikina Shoe 2. Act of State Doctrine – court of one state will
Expo was able to deliver only 200,000 pairs of not sit in judgment over acts of government
combat boots in Jakarta by October 30, 1990 of another state done in its territory.
and received payment for 100,000 pairs or a 3. Diplomatic Immunity;
total of $3,000,000. The Ministry of the Army 4. Immunity of UN Specialized agencies, other
promised to pay for the other 100,000 pairs International Organizations, and its Officers;
already delivered as soon as the remaining 5. Foreign Merchant vessels exercising the right
300,000 pairs of combat boots are delivered, at of innocent passage;
which time the said 300,000 pairs will also be 6. Foreign armies passing through or stationed in
paid for. the territory with the permission of the State;
7. Warships and other public vessels of another
Q: Marikina Shoe Corporation failed to deliver State operated for non-commercial purposes.
any more combat boots. On June 1, 1991, the
Republic of Indonesia filed an action before the ACT OF STATE DOCTRINE
RTC of Pasig, to compel Marikina Shoe Q: What is an Act of State?
Corporation to perform the balance of its A: An act of state is an act done by the sovereign
obligation under the contract and for damages. power of a country, or by its delegate, within the
In its Answer, Marikina Shoe Corporation sets up limits of the power vested in him. An act of State
a counterclaim for $3,000,000 representing the cannot be questioned or made the subject of legal
payment for the 100,000 pairs of combat boots proceedings in court of law. Courts cannot
already delivered but unpaid. Indonesia moved pass judgment on acts of State done within its
to dismiss the counterclaim asserting that it is territorial jurisdiction. It is different from
entitled to sovereign immunity from suit. The Sovereign Immunity from Suit. Here, you cannot
trial court denied the motion to dismiss and sue a sovereign State in the courts of another
issued two writs of garnishment upon State.
Indonesian Government funds deposited in the
PNB and BPI. Indonesia went to the Court of Q: Why?
Appeals on a petition for certiorari under Rule A: Would unduly vex the peace of nations based
65 of the Rules of Court. How would the Court on the doctrine of sovereign equality of States –
of Appeals decide the case? (1991 Bar) “Par in parem non habet imperium”
A: The Court of Appeals should dismiss the
petition in so far as it seeks to annul the order Q: What is the meaning or concept of “Act of
denying the motion of the Government of State” Doctrine? (1977 Bar)
Indonesia to dismiss the counterclaim. The A: The Act of State Doctrine states that every
counterclaim in this case is a compulsory sovereign state is bound to respect the
counterclaim since it arises from the same independence of other states and the court of one
contract involved in the complaint. As such, it country will not sit in judgment to the acts of the
foreign government done within its territory. b. Inviolability of premises and archives;
Redress of grievances by reason of such acts must c. Right of an official communication; Notes:
be obtained through the means open to be availed d. Exemption from local jurisdiction;
of by sovereign powers as between themselves. e. Exemption from subpoena as witness;
f. Exemption from taxation
DIPLOMATIC IMMUNITY
THE RIGHT OF LEGATION Q: Who are the usual agents of diplomatic
It is the right to send and receive diplomatic intercourse?
missions. It is strictly not a right since no State A: The diplomatic relations of a state are usually
can be compelled to enter into diplomatic conducted through:
relations with another State. Diplomatic relations i. The head of state;
is established by mutual consent between two ii. The foreign secretary or minister; and
States. iii. The members of the diplomatic service.
Q: Is the state obliged to maintain diplomatic Sometimes the state may appoint special
relations with other states? diplomatic agents charged with either political or
A: No, as the right of legation is purely ceremonial duties, such as the negotiation of a
consensual. If it wants to, a state may shut itself treaty or attendance at a state function like a
from the rest of the world, as Japan did until the coronation or a funeral.
close of the 19th century. However, a policy of
isolation would hinder the progress of a state Q: How are the regular diplomatic
since it would be denying itself of the many representatives classified?
benefits available from the international A:
community.
i. Ambassadors or nuncios accredited to
heads of states
Active right of legation – send diplomatic
ii. Envoys, ministers and internuncios
representatives accredited to heads of states
Passive right of legation – receive diplomatic
iii. Charges d’ affaires accredited to ministers
representatives for foreign affairs
Resident Missions The diplomatic corps consists of different
Classes of heads of missions [ A N E M I C ]
diplomatic representatives who have been
a. Ambassadors or nuncios accredited to Heads accredited to the local or receiving state. A doyen
of State and other heads of missions of
du corps or a dean, who is usually the member of
equivalent rank; the highest rank and the longest service to the
b. Envoys ministers and internuncios accredited
state, heads it.
to Heads of State;
c. Charges d’affaires accredited to Ministers for
In Catholic countries, the dean is the Papal
Foreign Affairs. Nuncio.
Functions of Diplomatic Missions Q: How are diplomatic representatives chosen?
1. representing sending state in receiving state;
A: The appointment of diplomats is not merely a
2. protecting in receiving state interests of matter of municipal law for the receiving state is
sending state and its nationals;
not obliged to accept a representative who is a
3. negotiating with government of receiving persona non grata to it. Indeed, there have been
state;
cases when duly accredited diplomatic
4. promoting friendly relations between sending representatives have been rejected, resulting in
and receiving states and developing their
strained relations between the sending and
economic, cultural and scientific relations; receiving state.
5. ascertaining by all lawful means conditions
and developments in receiving state and
reporting thereon to government of sending To avoid such awkward situation, most states now
state; and observe the practice of agreation, by means of
6. in some cases, representing friendly which inquiries are addressed to the receiving
governments at their request. state regarding a proposed diplomatic
representative of the sending state. It is only
Diplomatic Corps when the receiving state manifests its agreement
A body formed by all diplomatic envoys accredited or consent that the diplomatic representative is
to the same State. The Doyen or head of this body appointed and formally accredited.
is usually the Papal Nuncio, or the oldest
accredited ambassador or plenipotentiary. Q: What is agreation?
A: It is a practice of the states before appointing
Privileges and immunities a particular individual to be the chief of their
a. Personal inviolability; diplomatic mission in order to avoid possible
embarrassment. It consist of two acts:
i. The Inquiry, usually informal, property held by him in a private or

addressed by the sending state to the proprietary capacity. Notes:
receiving state regarding the acceptability of
an individual to be its chief of mission; and c) The diplomatic premises shall be
ii. The agreement, also informal, inviolable, and the agents of the receiving
by which the receiving state indicates to the state may not enter them without the
sending state that such person, would be consent of the head of the mission. Such
acceptable. premises, their furnishings and other property
thereon and the means of transportation of
Letter of Credence (Letre d’ Creance) the mission shall be immune from search,
The document, which the envoy receives from his requisition, attachment or execution. (See
government accrediting him to the foreign state movie “Red Corner” starring Richard Gere).
to which he is being sent. It designates his rank
and the general object of his mission and asks d) The archives and documents of
that he be received favorably and that full the mission shall be inviolable at any time
credence be given to what he says on behalf of his and wherever they may be.
state.
e) The receiving state shall permit
Letter Patent (Letre d’ Provision) and protect free communication on the part
The appointment of a consul is usually evidenced of the mission for all official purposes. In
by a commission, known sometimes as letter communicating with the government and
patent or letre d’ provision, issued by the other missions, and consulates of the sending
appointing authority of the sending state and state wherever situated, the mission may
transmitted to the receiving state through employ all appropriate means, including
diplomatic channels. diplomatic couriers and messages in code or
cipher. The official correspondence of the
Functions of diplomatic representatives mission shall be inviolable.
The functions of diplomatic mission consist inter
alia in: f) Subject to its laws and
a) Representing the sending state regulations concerning national security, the
in the receiving state. receiving state shall insure to all members of
b) Protecting in the receiving state the mission freedom of movement and travel
the interests of the sending state and its in its territory.
nationals.
c) Negotiating with the g) A diplomatic agent is not obliged
government of the receiving state. to give evidence as a witness.
d) Ascertainment through lawful
means of the conditions and developments in h) A diplomatic agent shall be
the receiving state and reporting thereon to exempt from all dues and taxes, personal or
the government of the sending state. real, national, regional, or municipal except
e) Promoting friendly relations in certain specified cases like the imposition
between the sending and receiving state and of indirect taxes.
developing their economic, cultural and
scientific relations. i) The mission and its head shall
f) In some cases, representing have the right to use the flag and emblem of
friendly governments at their request. the sending state on the premises of the
mission, including the residences of the head
Pointers on Diplomatic Immunities and of the mission and on his means of transport.
Privileges
The more important are the following:
Q: Who may waive the diplomatic immunity and
a) The person of a diplomatic privileges?
agent shall be inviolable and he shall not be
A: The waiver may be made expressly by the
liable to any form of arrest or detention. The
receiving state shall treat him with due sending state. It may also be done impliedly, as
when the person entitled to the immunity from
respect and shall take all appropriate steps to
prevent any attack on his person, freedom or jurisdiction commences litigation in the local
courts and thereby opens himself to any
dignity.
counterclaim directly connected with the
principal claim.
b) A diplomatic agent shall enjoy
immunity from the criminal, civil and However, waiver of immunity from jurisdiction
administrative jurisdiction of the receiving with regard to civil and administrative
state, except in certain cases as, for proceedings shall not be held to mean implied
example, when the civil action deals with waiver of the immunity with respect to the
execution of judgment, for which a separate Claiming that the Maintenance Contract was
waiver shall be necessary. unilaterally, baselessly and arbitrarily Notes:
terminated, Abad sued the State of Italy and its
Ambassador before a court in the City of
Q: Is Diplomatic Immunity a Political Question? Manila. Among the defenses they raised were
A: Diplomatic immunity is essentially a political “sovereign immunity” and “diplomatic
question and the courts should refuse to look immunity”. (2005 Bar)
beyond the determination by the executive (a) As counsel of Abad, refute the defenses of
branch. (DFA vs. NLRC, 1996) “sovereign immunity” and “diplomatic
immunity” raised by the State of Italy and
Duration of the diplomatic immunities its Ambassador.
Unless waived, diplomatic immunities and (b) At any rate, what should be the court’s
privileges begin from the moment diplomatic ruling on the said defenses?
agent arrives in the territory of the receiving A: (a) As a counsel of Abad, I shall argue that the
state or, if already there, form the moment his contract is not a sovereign function and that the
appointment is notified to its government, and stipulation that any suit arising under the contract
lasts until he leaves, which must be within a shall be filed with the proper courts of the City of
reasonable period following the termination of his Manila is a waiver of the sovereign immunity from
mission. suit of Italy. I shall also argue that the
ambassador does not enjoy diplomatic immunity,
With respect to his official acts, however, his because the suit relates to a commercial activity.
immunity from the jurisdiction of the receiving
state continues indefinitely as these are the acts (b) The court should reject the defenses. Since
attributed not to him but to the sending state. the establishment of a diplomatic mission requires
But this rule does not apply to his private acts, for the maintainance and upkeep of the embassy and
which he may later be sued or prosecuted should the residence of the ambassador, Italy was acting
he return in a private capacity to the receiving in pursuit of a sovereign activity when it entered
state or fail to leave it in due time after the end into the contract. The provision in the contract
of his mission. regarding the venue of lawsuits is not necessarily
a wavier of sovereign immunity from suit. It
Q: Who else besides the head of the mission are should be interpreted to apply only where Italy
entitled to diplomatic immunities and elects to sue in the Philippine courts or waives its
privileges? immunity by a subsequent act. The contract does
A: The diplomatic immunities and privileges are not involve a commercial activity of the
also enjoyed by the diplomatic suite or retinue, ambassador, because it is connected with his
which consists of the official and non-official staff official functions. [Republic of Indonesia v.
of the mission. Vinzon, 405 SCRA 126 (2003)]
The official staff is made up of the administrative Q: A group of high-ranking officials and rank and
and technical personnel of the mission, including file employees stationed in a foreign embassy in
those performing clerical work, and the member Manila were arrested outside embassy grounds
of their respective families. The non-official staff and detained at Camp Crame on suspicion that
is composed of the household help, such as the they were actively collaborating with
domestic servants, butlers, and cooks and “terrorists” out to overthrow or destabilize the
chauffeurs employed by the mission. Philippine Government. The Foreign
Ambassador sought their immediate release,
As a rule, however, domestic servants enjoy claiming that the detained embassy officials and
immunities and privileges only to the extent employees enjoyed diplomatic immunity. If
admitted by the receiving state and insofar as invited to express your legal opinion on the
they are connected with the performance of their matter, what advice would you give. (2003 Bar)
duties. A: I shall advise that the high ranking officials and
rank and file employees be released because of
Q: Italy, through its Ambassador, entered into a their diplomatic immunity. Article 29 of the
contract with Abad for the maintenance and Vienna Convention on Diplomatic Relations
repair of specified equipment at its Embassy provides:
and Ambassador’s Residence, such as air
conditioning units, generator sets, electrical “The person of a diplomatic agent shall be
facilities, water heaters, and water motor inviolable. He shall not be liable to any form of
pumps. It was stipulated that the agreement arrest or detention.”
shall be effective for a period of four years and
automatically renewed unless cancelled. Under Article 37 of the Vienna Convention on
Further, it provided that any suit arising from Diplomatic Relations, members of the
the contract shall be filed with the proper administrative and technical staff of the
courts in the City of Manila. diplomatic mission, shall, if they are not nationals
of or permanent residents in the receiving State, b) No, the lessor cannot ask the court to stop the
enjoy the privileges and immunities specified in departure of the ambassador from the Philippines. Notes:
Article 29. Under Article 29 of the Vienna Convention, a
diplomatic agent shall not be liable to any form of
Under Article 9 of the Vienna Convention on arrest or detention.
Diplomatic Relations, the remedy is to declare the
high-ranking officials and rank and file employees Q: The United States Ambassador from the
personae non gratae and ask them to leave. Philippines and the American Consul General
also in the Philippines quarreled in the lobby of
Alternative A: Under the Vienna Convention on Manila Hotel and shot each other. May the
Diplomatic Relations, a diplomatic agent “shall Philippine courts take jurisdiction over them for
not be liable to any form of arrest or detention trial and punishment for the crime they may
(Article 29) and he enjoys immunity from criminal have committed? (1979 Bar)
jurisdiction (Article 31). A: The Ambassador is immune from prosecution
for all crimes committed by him whether officially
This immunity may cover the “high ranking or in his private capacity.
officials” in question, who are assumed to be
diplomatic officers or agents. The consul is immune from criminal prosecution
ONLY for acts committed by him in connection
With respect to the “rank and file employees” with his official functions.
that are covered by the immunity referred to
above, provided that are not nationals or Q: The Ambassador of State X to the Philippines
permanent residents of the Philippines pursuant bought in the name of his government
to Article 37(2) of the said Convention. two houses and lots at Forbes Park,
Makati. One house is used as the
If the said rank and file employees belong to the chancery and residence of the
service staff of the diplomatic mission (such as ambassador, and the other as quarters
drivers) they may be covered by the immunity for nationals of State X who are
(even if they are not Philippine nationals or studying in De La Salle University. The
residents) as set out in Article 37(3), if at the time Register of Deeds refused to register
of the arrest they were in “acts performed in the the sale and to issue Transfer
course of their duties.” If a driver was among the Certificates of Title in the name of
said rank and file employees and he was arrested State X. Is his refusal justified?
while driving a diplomatic vehicle or engaged in
A: The prohibition in the Constitution against
related acts, still he would be covered by the alienation of lands in favor of aliens does not
immunity.
apply to alienation of the same in favor of foreign
governments to be used as chancery and
Q: A foreign ambassador to the Philippines
residence of its diplomatic representatives. The
leased a vacation house in Tagaytay for his receiving state is under obligation to facilitate the
personal use. For some reason, he failed to pay
acquisition on its territory, in accordance with its
the rentals for more than one year. The lessor laws, by the sending state of premises necessary
filed an action for the recovery of his property
for its mission, or to assist the latter in obtaining
in court. accommodation in some other way. Therefore,
a) Can the foreign ambassador invoke his
the refusal of the Register of Deeds to register the
diplomatic immunity to resist the lessor’s sale and the issuance of TCT in the name of state
action?
X is unjustified.
b) The lessor gets hold of evidence that the
ambassador is about to return to his home
However, in so far as the house and lot to be used
country. Can the lessor ask the court to as quarters of the nationals of State X who are
stop the ambassador’s departure from the
studying in De La Salle University are concerned,
Philippine? (2000 Bar) the Register of Deeds correctly refused
A: a) No, the foreign ambassador cannot invoke
registration. Here, the prohibition in the
the diplomatic immunity to resist the action, constitution against the transfer of properties to
since he is not using the house in Tagaytay City for
parties other than the Filipino citizens or
the purposes of his mission but merely for corporation 60% of the capital of which is owned
vacation. Under 3(1)(a) of the Vienna Convention
by such citizens should be followed.
on Diplomatic Relations, a diplomatic agent has
no immunity in case of a real action relating to
Termination of Diplomatic Relation
private immovable property situated in the A diplomatic mission may come to an end by any
territory of the receiving State unless he holds it
of the usual methods of terminating official
on behalf of the sending State for purposes of the relations like:
mission.
Under Municipal Law: [ R A D A R ]
a) Resignation
b) Accomplishment of the purpose Q: Do consuls enjoy their own immunities and

c) Death privileges? Explain. Notes:
A: Yes, but not to the same extent as those
d) Abolition of the office enjoyed by the diplomats.
e) Removal
Like diplomats, consuls are entitled to the
Under the International Law: [ W E R ] inviolability of their correspondence, archives and
a) War - the outbreak of war between the other documents, freedom of movement and
sending and receiving states terminates travel, immunity from jurisdiction for acts
their diplomatic relations, which is performed in their official capacity and
usually severed before the actual exemption from certain taxes and customs duties.
commencement of hostilities;
b) Extinction - extinction of either the However, consuls are liable to arrest and
sending state or the receiving state will punishment for grave offenses and may be
also automatically terminate diplomatic required to give testimony, subject to certain
relations between them; OR exceptions.
c) Recall – may be demanded by the
receiving state when the foreign The consular offices are immune only with respect
diplomat becomes a persona non grata to to that part where the consular work is being
it for any reason. Where the demand is performed and they may be expropriated for
rejected by the sending state, the purposes of national defense or public utility.
receiving state may resort to the more
drastic method of dismissal, by means of Q: Discuss the differences, if any, in the
which the offending diplomat is privileges or immunities of diplomatic envoys
summarily presented with his passport and consular officers from the civil and criminal
and asked to leave the country. jurisdiction of the receiving state. (1995 Bar)
A: Under Article 32 of the Vienna Convention of
Q: Will the termination of diplomatic relations Diplomatic Relations, a diplomatic agent shall
also terminate consular relations between the enjoy immunity from the criminal jurisdiction of
sending and receiving states? the receiving state. He shall also enjoy immunity
A: NO. Consuls belong to a class of state agents from its civil and administrative jurisdiction
distinct from that of diplomatic officers. They do except in the case of:
not represent their state in its relations with
foreign states and are not intermediaries through a) A real action relating to private
whom matters of state are discussed between immovable property situated in the territory
governments. of the receiving state, unless he holds it on
They look mainly after the commercial interest of behalf of the sending state for the purpose of
their own state in the territory of a foreign state. the mission;
They are not clothed with diplomatic character b) An action relating to succession
and are not accredited to the government of the in which the diplomatic agent is involved as
country where they exercised their consular executor, administrator, heir or legatee as
functions; they deal directly with local private person and not on behalf of the
authorities. sending state;
2 Kinds of Consuls c) An action relating to any

b) consules missi – professional or career professional or commercial activity exercised
consuls who are nationals of the sending by the diplomatic agent in the receiving state
state and are required to devote their outside of his official functions.
full time to the discharge of their duties.
c) consules electi –may or may not be On the other hand, under Article 41 of the Vienna
nationals of the sending state and Convention on the Consular Relations, a consular
perform their consular functions only in officer does not enjoy immunity from the criminal
addition to their regular callings. jurisdiction of the receiving state. Under Article
43 of the Vienna Convention on Consular
Q: Where do consuls derive their authority? Relations, consular officers are not amenable to
A: Consuls derive their authority from two the jurisdiction of the judicial or administrative
principal sources, to wit, the letter patent or authorities of the receiving state in respect of
letter ‘de provision, which is the commission acts performed in the exercise of consular
issued by the sending state, and the exequator, functions.
which is the permission given them by the
receiving state to perform their functions therein. However, this does not apply in respect of a civil
action either:
a) Arising out of a CONTRACT protection to Philippine diplomatic agents,

concluded by a consular officer in which he Section 4 of RA 75 provides that any writ or Notes:
did not enter expressly or impliedly as an process issued by any court in the Philippines for
agent of the sending state. the attachment of the goods or chattel of the
b) By a third party for DAMAGES ambassador of a foreign state to the Philippines
arising from an accident in the receiving state shall be void.
caused by a vehicle, vessel or aircraft.
c) No, E cannot ask the court to stop the
Q: D, the Ambassador of the Kingdom of Nepal departure of the Ambassador of the Kingdom of
to the Philippines leased a house in Baguio City Nepal from the Philippines. Article 29 of the
as his personal vacation home. On account of Vienna Convention on Diplomatic Relations
military disturbance in Nepal, D did not receive provides: “The person of a diplomatic agent shall
his salary and allowances from his government be inviolable. He shall not be liable to any form
and so he failed to pay his rental for more than of arrest or detention.
one year. E, the lessor, filed an action for
recovery of his property with the RTC of Baguio Q: Explain, using example, the meaning of
City. (2000, 1989 Bar) exequator. (1991 Bar)
a) Can the action of E prosper? A: Exequator is an authorization from the
b) Can E ask for the attachment of the receiving state admitting the head of a consular
furniture and other personal properties of d post to the exercise of his functions. For
after getting hold of evidence that D is example, if the Philippines appoint a consul
about to leave the country? general for New York, he cannot start performing
c) Can E ask the court to stop D’s departure his functions unless the President of the United
from the Philippines? States issues an exequator to him.
A: a) Yes Article 31 of the Vienna Convention on
Diplomatic Relations provides: Q: X, a secretary and consul in the American
embassy in Manila, bought from B a diamond
“A diplomatic agent shall enjoy immunity ring in the amount of P 50,000, which he later
from the criminal jurisdiction of the receiving gave as a birthday present to his Filipino
state. He shall also enjoy immunity from its girlfriend. The purchase price was paid in
civil and administrative jurisdiction, except in check drawn upon the Citibank. Upon
the case of: A real action relating to private presentment for payment, the check was
immovable property situated in the territory dishonored for insufficiency of funds. Because
of the receiving state, unless he holds it on X’s failure to make good of the dishonored
behalf of the sending state for the purpose check, B filed a complaint against X in the
of the mission. Office of the City Prosecutor of Manila for
violation of BP 22. After preliminary
The action against the ambassador is a real action investigation, the information was filed against
involving private immovable property situated X in the City Court of Manila. X filed a motion
within the territory of the Philippines as the to dismiss the case against him on the ground
receiving state. The action falls within the that he is a Secretary and Consul in the
exception to the grant of immunity from the civil American Embassy enjoying diplomatic
and administrative jurisdiction of the Philippines. immunity from criminal prosecution in the
Philippines. If you were the judge, how would
Alternative A: No, the action will not prosper. you resolve the motion to dismiss? (1997 Bar)
Although the action is a real action relating to
private immovable property within the territory of
the Philippines, nonetheless, the vacation house A: The motion to dismiss should be granted. As
consul, X is not immune from criminal
may be considered property held by the
Ambassador in behalf of his State (Kingdom of prosecution. Under paragraph 3 of Article 41 of
the Vienna Conventions, a consular officer is not
Nepal) for the purposes of the mission, and
therefore, such is beyond the civil and immune from the criminal jurisdiction of the
receiving state. In Schneekenburger vs. Mora, 63
administrative jurisdiction of the Philippines,
including its court. Phil 249, it was held that a consul is not exempt
from criminal prosecution in the country where he
b) No, E cannot ask for the attachment of the is assigned.
personal properties of the Ambassador. Article 30 However, as a secretary in the American Embassy,
and 31 of the Vienna Convention on Diplomatic X enjoys diplomatic immunity from the criminal
Relations provide that the papers, correspondence prosecution. As secretary, he is a diplomatic
and the property of the diplomatic agent shall be agent. Under paragraph 1 of Article 3 of the
inviolable. Therefore, a writ of attachment Vienna Convention, a diplomatic agent against
cannot be issued against the furniture and any enjoys immunity from the criminal jurisdiction of
personal property. Moreover, on the assumption the receiving state.
that the Kingdom of Nepal grants similar
Q: a) A consul of a South American country presented Diplomatic Notes from the American
stationed in Manila was charged with serious Embassy stating that he is an agent of the Notes:
physical injuries. May he claim immunity from United States Drug Enforcement Agency tasked
jurisdiction of the local court? Explain. with “conducting surveillance operations” on
suspected drug dealers in the Philippines
b) Suppose after he was charged, he was believed to be the source of prohibited drugs
appointed as his country’s ambassador to the being shipped to the U.S. It was also stated that
Philippines. Can his newly gained diplomatic after having ascertained the target, Adams
status be a ground for the dismissal of his would then inform the Philippine narcotic
criminal case? Explain. (1995 Bar) agents to make the actual arrest. (2005 Bar)
A: a) No, Under Article 41 of the Vienna (a) As counsel of plaintiff Baker, argue why his
Convention, consuls do not enjoy immunity from complaint should not be dismissed on the
the criminal jurisdiction of the receiving state. ground of defendant Adams’ diplomatic
He is not liable to arrest or detention pending the immunity from suit.
trial unless the offense was committed against his (b) As counsel of defendant Adams, argue for
father, mother, child, ascendant, descendant or the dismissal of the complaint.
spouse. Consuls are not liable to arrest and A: (a) As a counsel of Baker, I shall argue that
detention pending trial except in the case of Baker has no diplomatic immunity, because he is
grave crime and pursuant to a decision by the not performing diplomatic functions.
competent judicial authority. The crime of
physical injuries is not a grave crime unless it is Alternative A: (a) As a counsel for Baker, I will
committed against the above-mentioned persons. argue that Adam’s diplomatic immunity cannot be
accepted as the sole basis for the dismissal of the
b) Yes, Under Article 40 of the Vienna Convention, damage suit, by mere presentation of Diplomatic
if a diplomatic agent is in the territory of a third Notes stating that he is an agent of the US Drug
state, which has granted him a passport visa if Enforcement Agency. His diplomatic status was
such was necessary, while proceeding to take up matter of serious doubt on account of his failure
his post, the third state shall accord him to disclose it when he appeared as principal
inviolability and such other immunities as may be witness in the earlier criminal (drug) case against
required to ensure his transit. Baker, considering that as a matter of diplomatic
practice a diplomatic agent may be allowed or
authorized to give evidence as a witness by the
MUNICHER v. CA
sending state. Thus, his diplomatic status was not
G.R. No. 142396, 11 February 2003 sufficiently established.
If the acts giving rise to a suit are those of a (b) As counsel of Adams, I shall argue that since
foreign government done by its foreign agent, he was acting within his assigned functions with
although not necessarily a diplomatic personage, the consent of the Philippines, the suit against
but acting in his official capacity, the complaint him is a suit against the United States without its
could be barred by the immunity of the foreign consent and is barred by state immunity from
sovereign from suit without its consent. suit. [Minucher v. CA, 397 SCRA 244, (2003)]
Q: Adams and Baker are American citizens

residing in the Philippines. Adams befriended JURISDICTIONAL ASSISTANCE
Baker and became a frequent visitor at his
house. One day, Adams arrived with 30
members of the Philippine National Police, Extradition Defined
armed with a Search Warrant authorizing the Extradition distinguished from Double Criminality
search of Baker’s house and its premises for Basis for Allowing Extradition
dangerous drugs being trafficked to the United Rules in Interpretation of Extradition Treaty
States of America. Extradition Distinguished from Deportation
Fundamental Principles Governing Extradition
The search purportedly yielded positive results, Extradition of War Criminals and Terrorists
and Baker was charged with Violation of the Attentat Clause
Dangerous Drugs Act. Adams was the Five Postulates of Extradition
prosecution’s principal witness. However, for Right of Asylum
failure to prove his guilt beyond reasonable Asylum Distinguished from Refugees
doubt, Baker was acquitted. 3 Essentials Elements of Refugees
Non-Refoulment Principle
Baker then sued Adams for damages for filing Nationality Distinguished from Citizenship
trumped-up charges against him. Among the Doctrine of Effective Nationality
defenses raised by Adams is that he has Statelessness
diplomatic immunity, conformably with the
Vienna Convention on Diplomatic Relations. He ¯°º°¯
Extradition thought that international law imposed a legal

The delivery of an accused or a convicted duty called civitas maxima to extradite criminals. Notes:
individual to the State in whose territory he is In sharp contrast, Puffendorf and Billot led the
alleged to have committed a crime by the State school of thought that the so-called duty was but
on whose territory the alleged criminal or criminal an "imperfect obligation which could become
happens to be at the time. enforceable only by a contract or agreement
between states.
The legal duty to extradite a fugitive from justice
is based only on treaty stipulations, which are Modern nations tilted towards the view of
classified under two major types: Puffendorf and Billot that under international law
there is no duty to extradite in the absence of
Older Type Principle of treaty, whether bilateral or multilateral. Thus,
Double Criminality the US Supreme Court in US v. Rauscher (119 US
One, which contains a Sometimes called “no 407, 411, 7 S Ct. 234, 236, 30 L. ed. 425 [1886]),
specific list of offenses list treaty” held: “x x x it is only in modern times that the
that a fugitive should nations of the earth have imposed upon
have committed in The more modern type themselves the obligation of delivering up these
order to be extradited. contains no list of fugitives from justice to the states where their
crimes but provides that crimes were committed, for trial and punishment.
the offenses in question This has been done generally by treaties x x x
should be punishable in Prior to these treaties, and apart from them there
both states. was no well-defined obligation on one country to
deliver up such fugitives to another; and though
It should not require such delivery was often made it was upon the
that the name of the principle of comity x x x.” (Dissenting Opinion,
crime described should Puno, J., in Secretary of Justice v. Hon. Ralph C.
be the same in both Lantion, G.R. No. 139465, Jan. 18, 2000, En Banc)
countries. It is enough
that the particular act Q: What is the nature of an extradition
charged is a crime in proceeding? Is it akin to a criminal proceeding?
both jurisdictions. Held: [A]n extradition proceeding is sui generis.
It is not a criminal proceeding which will call into
operation all the rights of an accused as
Q: What is extradition? To whom does it apply? guaranteed by the Bill of Rights. To begin with,
Held: It is the “process by which persons charged the process of extradition does not involve the
with or convicted of crime against the law of a determination of the guilt or innocence of an
State and found in a foreign State are returned by accused. His guilt or innocence will be adjudged
the latter to the former for trial or punishment. in the court of the state where he will be
It applies to those who are merely charged with extradited. Hence, as a rule, constitutional rights
an offense but have not been brought to trial; to that are only relevant to determine the guilt or
those who have been tried and convicted and innocence of an accused cannot be invoked by an
have subsequently escaped from custody; and extraditee especially by one whose extradition
those who have been convicted in absentia. It papers are still undergoing evaluation. As held by
does not apply to persons merely suspected of the US Supreme Court in United States v. Galanis:
having committed an offense but against whom no
charge has been laid or to a person whose “An extradition proceeding is not a criminal
presence is desired as a witness or for obtaining prosecution, and the constitutional safeguards
or enforcing a civil judgment.” (Weston, Falk, D' that accompany a criminal trial in this country do
Amato, International Law and Order, 2nd ed., p. not shield an accused from extradition pursuant to
630 [1990], cited in Dissenting Opinion, Puno, J., a valid treaty.” (Wiehl, Extradition Law at the
in Secretary of Justice v. Hon. Ralph C. Lantion, Crossroads: The Trend Toward Extending Greater
G.R. No. 139465, Jan. 18, 2000, En Banc) Constitutional Procedural Protections To Fugitives
Fighting Extradition from the United States, 19
Q: Discuss the basis for allowing extradition. Michigan Journal of International Law 729, 741
Held: Extradition was first practiced by the [1998], citing United States v. Galanis, 429 F.
Egyptians, Chinese, Chaldeans and Assyro- Supp. 1215 [D. Conn. 1977])
Babylonians but their basis for allowing
extradition was unclear. Sometimes, it was There are other differences between an
granted due to pacts; at other times, due to plain extradition proceeding and a criminal proceeding.
good will. The classical commentators on An extradition proceeding is summary in natural
international law thus focused their early views while criminal proceedings involve a full-blown
on the nature of the duty to surrender an trial. In contradistinction to a criminal
extraditee --- whether the duty is legal or moral proceeding, the rules of evidence in an
in character. Grotius and Vattel led the school of extradition proceeding allow admission of
evidence under less stringent standards. In terms For his defense, Gibson asserts that the
of the quantum of evidence to be satisfied, a retroactive application of the extradition treaty Notes:
criminal case requires proof beyond reasonable amounts to an ex post facto law. Rule on
doubt for conviction while a fugitive may be Gibson’s contention. (2005 Bar)
ordered extradited “upon showing of the
existence of a prima facie case.” Finally, unlike A: The contention of Gibson is not tenable. The
in a criminal case where judgment becomes prohibition in Section 22, Article III of the
executory upon being rendered final, in an Constitution refers to ex post facto laws. An
extradition proceeding, our courts may adjudge extradition treaty is not a criminal law. [Wright v.
an individual extraditable but the President has CA, 235 SCRA 341 (1994)]
the final discretion to extradite him. The United
States adheres to a similar practice whereby the Q: Discuss the rules in the interpretation of
Secretary of State exercises wide discretion in extradition treaties.
balancing the equities of the case and the Held: [A]ll treaties, including the RP-US
demands of the nation's foreign relations before Extradition Treaty, should be interpreted in light
making the ultimate decision to extradite. of their intent. Nothing less than the Vienna
Convention on the Law of Treaties to which the
As an extradition proceeding is not criminal in Philippines is a signatory provides that “a treaty
character and the evaluation stage in an shall be interpreted in good faith in accordance
extradition proceeding is not akin to a preliminary with the ordinary meaning to be given to the
investigation, the due process safeguards in the terms of the treaty in their context and in light of
latter do not necessarily apply to the former. This its object and purpose.” X x x. It cannot be
we hold for the procedural due process required gainsaid that today, countries like the Philippines
by a given set of circumstances “must begin with forge extradition treaties to arrest the dramatic
a determination of the precise nature of the rise of international and transnational crimes like
government function involved as well as the terrorism and drug trafficking. Extradition
private interest that has been affected by treaties provide the assurance that the
governmental action.” The concept of due punishment of these crimes will not be frustrated
process is flexible for “not all situations calling by the frontiers of territorial sovereignty. Implicit
for procedural safeguards call for the same kind in the treaties should be the unbending
of procedure.” (Secretary of Justice v. Hon. Ralph commitment that the perpetrators of these crimes
C. Lantion, G.R. No. 139465, Oct. 17, 2000, En will not be coddled by any signatory state.
Banc [Puno])
It ought to follow that the RP-US Extradition
Q: Will the retroactive application of an Treaty calls for an interpretation that will
extradition treaty violate the constitutional minimize if not prevent the escape of extraditees
prohibition against "ex post facto" laws? from the long arm of the law and expedite their
Held: The prohibition against ex post facto law trial. X x x
applies only to criminal legislation which affects
the substantial rights of the accused. This being [A]n equally compelling factor to consider is the
so, there is no merit in the contention that the understanding of the parties themselves to the
ruling sustaining an extradition treaty’s RP-US Extradition Treaty as well as the general
retroactive application violates the constitutional interpretation of the issue in question by other
prohibition against ex post facto laws. The treaty countries with similar treaties with the
is neither a piece of criminal legislation nor a Philippines. The rule is recognized that while
criminal procedural statute. (Wright v. CA, 235 courts have the power to interpret treaties, the
SCRA 341, Aug. 15, 1994 [Kapunan]) meaning given them by the departments of
government particularly charged with their
Q: The Philippines and Australia entered into a negotiation and enforcement is accorded great
Treaty of Extradition concurred in by the Senate weight. The reason for the rule is laid down in
of the Philippines on September 10, 1990. Both Santos III v. Northwest Orient Airlines, et al. (210
governments have notified each other that the SCRA 256, 261 [1992]), where we stressed that a
requirements for the entry into force of the treaty is a joint executive-legislative act which
Treaty have been complied with. It took effect enjoys the presumption that “it was first carefully
in 1990. studied and determined to be constitutional
before it was adopted and given the force of law
The Australian government is requesting the in the country.” (Secretary of Justice v. Hon.
Philippine government to extradite its citizen, Ralph C. Lantion, G.R. No. 139465, Oct. 17, 2000,
Gibson, who has committed in his country the En Banc [Puno])
indictable offense of Obtaining Property by
Deception in 1985. The said offense is among Q: What is the difference, if any, between
those enumerated as extraditable in the Treaty. extradition and deportation? (1995 Bar)
A:
BASIS EXTRADITION DEPORTATION On the eve of the assassination attempt, John’s

Nature Normally Even if no crime men were caught by member of the Presidential Notes:
committed with was committed as Security Group. President Harry went on air
criminal long as the alien threatening to prosecute plotters and dissidents
offenses in the is extraditable of his administration. The next day, the
territory of the government charged John with assassination
requesting state attempt and William with inciting to sedition.
Benefit Effected for the Effected for the John fled to Republic A. William, who was in
benefit of the protection of the Republic B attending a lecture on democracy,
state to which state expelling an was advised by his friends to stay in Republic B.
the person being alien because his
extradited will presence is Both Republic A and Republic B have
be surrendered inimical to public conventional extradition treaties with Republic
because he is a good X.
fugitive criminal
in that state If Republic X requests the extradition of John
and William, can Republic A deny the request?
How? Effected on the The unilateral act Why? State your reason fully. (2002 Bar)
basis of an of the state
extradition expelling the A: Republic A can refuse to extradite John,
treaty or upon alien because his offense is a political offense. John
the request of was plotting to take over the government and the
another state plan of John to assassinate President Harry was
part of such plan. However, if the extradition
Where? The alien will be The undesirable treaty contains an attentat clause, Republic A can
surrendered to alien may be sent extradite John because under the attentat clause,
the state asking to any state the taking of the life or attempt against the life of
for his willing to accept a head of state or that of the members of his
extradition him family does not constitute a political offense and
is therefore extraditable.
Fundamental Principles Governing Extradition: Alternative A: Republic A may or can refuse the
a) There is no legal obligation to surrender a request of extradition of William because he is
fugitive unless there is a treaty. not in its territory and thus it is not in the position
b) Religious and political offenses are generally to deliver him to Republic X.
not extraditable.
c) A person extradited can be prosecuted by the Even if William were in the territorial jurisdiction
requesting state only for the crime for which of Republic A, he may not be extradited because
he was extradited; and inciting to sedition, of which he is charged,
d) Unless provided for in a treaty, the crime for constitutes a political offense. It is a standard
which a person is extradited must have been provision of extradition treaties, such as the one
committed in the territory of the requesting between Republic A and Republic X, that political
state. offenses are not extraditable.
Q: John is a former President of the Republic X, Alternative A: Republic B can deny the request
bent on regaining power which he lost to the request of Republic X to extradite William,
President Harry in an election. Fully convinced because his offense was not a political offense.
that he was cheated, he set out to destabilize On the basis of the predominance of
the government of President Harry by means of proportionality test, his acts were not directly
a series of protest actions. His plan was to connected to any purely political offense.
weaken the government and when the situation
became ripe for a take-over, to assassinate Q: On November 1, 1976, A, B, C and D, self
President Harry. styled Moro rebels long wanted by the
authorities for the fatal ambuscade of a bus
William, on the other hand, is a believer in load of innocent civilians, hijacked a PAL lane
human rights and a former follower of President on its Manila-Davao flight which they forcibly
Harry. Noting the systematic acts of harassment diverted to, and landed in Jakarta Indonesia. In
committed by government agents against that country, A, B, C and D sought political
farmers protesting the seizure of their lands, asylum, invoking the UN Declaration on Human
laborers complaining of low wages, and students Rights. Reacting, the Philippine Government,
seeking free tuition, William organized groups through proper diplomatic channels sought after
which held peaceful rallies in front of the their extradition. May Indonesia grant asylum
Presidential Palace to express their grievances.
or should it extradite A, B, C and D to the for an offense committed in France prior to

Philippines. (1976 Bar) the effectivity of the treaty? Explain. Notes:
b) Can A contest his extradition on the ground
Q: Sergio Osmeña III and Eugenio Lopez Jr. both that it violates the ex post facto provision
charged with attempted assassination of in the Philippine Constitution? Explain.
President Marcos before the military tribunal, (1996 Bar)
escaped from military custody, flew to Hong A: a) In Clough vs. Strakesh, 109 Fed 330, it was
Kong and then to California USA where they are held that an extradition treaty applies to Crimes
reportedly seeking political asylum. There is no committed before its effectivity unless the
extradition treaty however between the extradition treaty expressly exempts them. As
Philippines and the United States.Assuming that Whiteman points out, extradition does not define
the Philippine Government desires the crimes but merely provides a means by which a
surrender of the above-named fugitives to the state may obtain the return and punishment of
Philippines to face trial before the military persons charged with or convicted of having
tribunal, how can this be legally done under committed a crime who fled the jurisdiction of
International Law? (1978 Bar) the state whose law has been violated. It is
A: The Philippines may only request and cannot therefore immaterial whether at the time of the
demand the surrender of the two fugitives. As commission of the crime for which extradition is
territorial sovereign, the United States is not sought no treaty was in existence. If at the time
obliged to return them but may decide to do so of extradition is requested there is in force
for reasons of comity. This is likely, however, between the requesting and the requested state a
because the escapees are sought for political treaty covering the offense on which the request
offense and can claim the right of asylum under is based, the treaty is applicable.
the Universal Declaration of Human Rights.
b) No, as held in WRIGHT vs. CA, 295 SCRA 341,
Q: Explain, using example, the principle of the prohibition against ex post facto laws in
Double Criminality. (1991 Bar) Section 22 of Article III of the Constitution applies
A: The principle of double criminality is the rule to penal laws only and does not apply to
in extradition which states that for a request to extradition treaties.
be honored, the crime for which the extradition is
requested must be a crime in both the requesting Extradition of War Criminals and Terrorists
state and the state to which the fugitive fled. For (Violators of crimes against international law)
example, since murder is a crime both in the As violators of crimes against international law,
Philippines and Canada, under the Treaty of war criminals are subject to extradition in 1946,
extradition between the Philippines and Canada, the UN General Assembly passed a resolution
the Philippines can request Canada to extradite recommending to members and calling upon all
Filipino who has fled to Canada. non-members to extradite war criminals,
including traitors.
Q: Patrick is charged with illegal recruitment
and estafa before the RTC of Manila. He Attentat Clause
jumped bail and managed to escape to America. A provision in an extradition treaty that stipulates
Assume that there is an extradition treaty
that the murder of the head of a foreign
between the Philippines and America and it government or the member of his family should
does not include illegal recruitment as one of
not be considered as a political offense.
the extraditable offenses. Upon surrender of
Patrick by the US Government to the
Philippines, Patrick protested that he could not Doctrine of Reciprocity
be tried for illegal recruitment. Decide. (1998 If the requesting state is shown to be willing to
Bar) surrender its own nationals for trial by the courts
A: Under the principle of specialty in extradition, of another country, the detaining state must also
Patrick cannot be tried for illegal recruitment surrender its own citizens for trial.
since this is not included in the list of extraditable
offenses in the extradition treaty between the 5 POSTULATES OF EXTRADITION
Philippines and the United States, unless the
United States does not object to the trial of Extradition Is a Major Instrument for the
Patrick for illegal recruitment. Suppression of Crime.
Q: The Extradition Treaty between France and FIRST, extradition treaties are entered into for
the Philippines is silent as to applicability with the purpose of suppressing crime by facilitating
respect to crimes committed prior to its the arrest and the custodial transfer of a fugitive
effectivity. from one state to the other.
a) Can France demand the extradition of A, a
French national residing in the Philippines, With the advent of easier and faster means of
international travel, the flight of affluent
Criminals from one country to another for the Treaty, and whether the person sought is
purpose of committing crime and evading extraditable. Notes:
prosecution have become more frequent.
Accordingly, governments are adjusting their Compliance Shall Be in Good Faith.
methods of dealing with criminals and crimes that
transcend international boundaries. FOURTH, our executive branch of government
voluntarily entered into the Extradition Treaty,
Today, “a majority of nations in the world and our legislative branch ratified it. Hence, the
community have come to look upon extradition as Treaty carries the presumption that its
the major effective instrument of international implementation will serve the national interest.
co-operation in the suppression of crime”. It is
the only regular system hat has been devised to Fulfilling our obligations under the Extradition
return fugitives to the jurisdiction of a court Treaty promotes comity with the requesting state.
competent to try them in accordance with On the other hand, failure to fulfill our obligations
municipal and international law. thereunder paints a bad image of our country
before the world community. Such failure would
The Requesting State Will Accord Due Process to discourage other states from entering into
the Accused. treaties with us, particularly an extradition treaty
that hinges on reciprocity.
SECOND, an extradition treaty presupposes that Verily, we are bound by pacta sunt servanda to
both parties thereto have examined and that both comply in good faith with our obligations under
accept and trust each other’s legal system and the Treaty. This principle requires that we deliver
judicial process. More pointedly, our duly the accused to the requesting country if the
authorized representative’s signature on an conditions precedent to extradition, as set forth
extradition treaty signifies our confidence in the in the Treaty, is satisfied. In other words, the
capacity and the willingness of the other state to demanding government, where it has done all that
protect the basic rights of the person sought to be the treaty and the law require it to do, is entitled
extradited. That signature signifies our full faith to the delivery of the accused on the issue of the
that the accused will be given, upon extradition proper warrant, and the other government is
to the requesting state, all relevant and basic under obligation to make the surrender.”
rights in the criminal proceedings that will take Accordingly, the Philippines must be ready and in
place therein; otherwise, the treaty would not a position to deliver the accused, should it be
have been signed, or would have been directly found proper.
attacked for its unconstitutionality.
There Is an Underlying Risk of Flight
The Proceedings Are Sui Generis.
FIFTH, persons to be extradited are presumed to
THIRD, as pointed out in Secretary of Justice vs. be flight risks. This prima facie presumption finds
Lantion, extradition proceedings are not criminal reinforcement in the experience of the executive
in nature. In criminal proceedings, the branch nothing short of confinement can ensure
constitutional rights of the accused are at fore; in that the accused will not flee the jurisdiction of
extradition, which is sui generis - in a class by the requested state in order to thwart their
itself – they are not. extradition to the requesting state.
The present extradition case further validates the

Given the foregoing, it is evident that the premise that persons sought to be extradited have
extradition court is not called upon to ascertain a propensity to flee. Indeed, extradition hearings
the guilt or the innocence of the person sought to would not even begin, if only the accused were
be extradited. Such determination during the willing to submit to trial in the requesting
extradition proceedings will only result in country. Prior acts of herein respondent:
needless duplication and delay.
c) Leaving the requesting state right before the
Extradition is merely a measure of international conclusion of his indictment proceedings
judicial assistance through which a person there; and
charged with or convicted of a crime is restored d) Remaining in the requested state despite
to a jurisdiction with the best claim to try that learning that the requesting state is seeking
person. It is not part of the function of the his return and that the crimes he is charged
assisting authorities to enter into questions, which with are bailable - eloquently speak of his
are the prerogative of that jurisdiction. aversion to the processes in the requesting
state, as well as his predisposition to avoid
The ultimate purpose of extradition proceedings them at all cost.
in court is only to determine whether the
extradition request complies with the Extradition
These circumstances point to an ever-present, situation, immediately upon the filling of the
underlying high risk of flight. He has petition. From the knowledge and the material Notes:
demonstrated that he has the capacity and the then available to it, the court is expected merely
will to flee. Having fled once, what is there to to get a good first impression - a prima facie
stop him, given sufficient opportunity, from finding - sufficient to make a speedy initial
fleeing a second time? determination as regards the arrest and detention
of the accused.
Q: Is the respondent in extradition proceeding
entitled to notice and hearing before the We stress that the prima facie existence of
issuance of a warrant of arrest? probable cause for hearing the petition and, a
A: Both parties cite section 6 of PD 1069 in priori, for issuing an arrest warrant was already
support of their arguments. It states: evident from the petition itself and its supporting
documents. Hence, after having already
“SEC. 6. Issuance of Summons; Temporary Arrest, determined therefrom that a prima facie finding
Hearing, Service of Notices - did not exist, respondent judge gravely abused his
discretion when he set the matter for hearing
(1) Immediately upon receipt of the petition, the upon motion of Jimenez.
presiding judge of the court shall, as soon as
practicable, summon the accused to appear and Moreover, the law specifies that the court se a
to answer the petition on the day and hour fixed hearing upon receipt of the answer or upon failure
in the order. He may issue a warrant for the of the accused to answer after receiving the
immediate arrest of the accused which may be summons. In connection with the matter of
served any where within the Philippines if it immediate arrest, however, the word “hearing” is
appears to the presiding judge that the immediate notably absent from the provision. Evidently, had
arrest and temporary detention of the accused the holding of a hearing at that stage been
will best serve the ends of justice. Upon receipt intended, the law could have easily so provided.
of the answer, or should the accused after having It also bears emphasizing at this point that
received the summons fail to answer within the extradition proceedings are summary in nature.
time fixed, the presiding judge shall hear the case Hence, the silence of the Law and the Treaty
or set another date for the hearing thereof. leans to the more reasonable interpretation that
there is no intention to punctuate with a hearing
(2) The order and notice as well as a copy of the every little step in the entire proceedings.
warrant of arrest, if issued, shall be promptly
served each upon the accused and the attorney Verily, as argued by petitioner, sending to persons
having charge of the case.” sought to be extradited a notice of the request for
their arrest and setting it for hearing at some
Does this provision sanction RTC Judge Purganan’s future date would give them ample opportunity to
act of immediately setting for hearing the prepare and execute an escape. Neither the
issuance of a warrant of arrest? We rule in the Treaty nor the Law could have intended that
negative: consequence, for the very purpose of both would
have been defeated by the escape of the accused
A. On the Basis of the Extradition law from the requested state.
It is significant to note that Section 6 of PD 1069,

our Extradition Law, uses the word “immediate”
to qualify the arrest of the accused. This B. On the Basis of the Constitution
“qualification would be rendered nugatory by
setting for hearing the issuance of the arrest Even Section 2 of Article III of our Constitution,
warrant. Hearing entails sending notices to the which is invoked by Jimenez, does not require a
opposing parties, receiving facts and arguments notice or a hearing before the issuance of a
from them, and giving them time to prepare and warrant of arrest. It provides:
present such facts and arguments. Arrest
subsequent to a hearing can no longer be “Sec. 2 - The right of the people to be secure
considered “immediate”. The law could not have in their persons, houses, papers, and effects
intended the word as a mere superfluity but on against unreasonable searches and seizures and
the whole as a means of imparting a sense of seizures of whatever nature and for any purpose
urgency and swiftness in the determination of shall be inviolable, and no search warrant or
whether a warrant of arrest should be issued. warrant of arrest shall issue except upon
probable cause to be determined personally by
By using the phrase “if it appears,” the law the judge after examination under oath or
further conveys that accuracy is not as important affirmation of the complainant and the
as speed at such early stage. The trial court is witnesses he may produce, and particularly
not expected to make an exhaustive describing the place to be searched and the
determination to ferret out the true and actual persons or things to be seized.”
Q: Is respondent Mark Jimenez entitled to bail

To determine probable cause for the issuance of during the pendency of the Extradition Notes:
arrest warrants, the Constitution itself requires Proceeding?
only the examination - under oath or affirmation A: We agree with petitioner: As suggested by the
- of complainants and the witnesses they may use of the word “conviction,” the constitutional
produce. There is no requirement to notify and provision on bail quoted above, as well as Section
hear the accused before the issuance of warrants 4 of Rule 114 pf the Rules of Court, applies only
of arrest. when a person has been arrested and detained for
violation of Philippine criminal laws. It does not
In Ho vs. People and in all the cases cited therein, apply to extradition proceedings, because
never was a judge required to go to the extent of extradition courts do not render judgments of
conducting a hearing just for the purpose of conviction or acquittal.
personally determining probable cause for the
issuance of a warrant of arrest. All we required Moreover, the constitutional right to bail “flows
was that the “judge must have sufficient from the presumption of innocence in favor of
supporting documents upon which to make his every accused who should not be subjected to the
independent judgment, or at the very least, upon loss of freedom as thereafter he would be entitled
which to verify the findings of the prosecutor as to acquittal, unless his guilt be proved beyond
to the existence of probable cause.” reasonable doubt.
In Webb vs. De Leon, the Court categorically It follows that the constitutional provision on bail
stated that a judge was not supposed to conduct a will not apply to a case like extradition, where
hearing before issuing a warrant of arrest: the presumption of innocence is not at issue.
“Again, we stress that before issuing The provision in the Constitution stating that the
warrants of arrest, judges merely “right to bail shall not be impaired even when the
determine personally the probability, not privilege of the writ of habeas corpus is
the certainty of guilt of an accused. In suspended” does not detract from the rule that
doing so, judges do not conduct a de novo the constitutional right to bail is available only in
hearing to determine the existence of criminal proceedings. It must be noted that the
probable cause. They just personally review suspension of the privilege of the writ of habeas
the initial determination of the prosecutor corpus finds application “only to persons judicially
finding a probable cause to see if it is charged for rebellion or offenses inherent in or
supported by substantial evidence.” directly connected with invasion.” Hence, the
second sentence in the constitutional provision on
At most, in cases of clear insufficiency of bail merely emphasizes the right to bail in
evidence on record, judges merely further criminal proceedings for the aforementioned
examine complainants and their witnesses. In the offenses. It cannot be taken to mean that the
present case validating the act of respondent right is available even in extradition proceedings
judge and instituting the practice of hearing the that are not criminal in nature.
accused and his witnesses at this early stage
would be discordant with the rationale for the That the offenses for which Jimenez is sought to
entire system. If the accused were allowed to be be extradited are bailable in the United States is
heard and necessarily to present evidence during not an argument to grant him one in the present
the prima facie determination for the issuance of case. To stress, extradition proceedings are
a warrant of arrest, what would stop him from separate and distinct from the trial for the
presenting his entire plethora of defenses at this offenses for which he is charged. He should apply
stage -- if he so desires -- in his effort to negate for bail before the courts trying the criminal cases
a prima facie finding? Such a procedure could against him, not before the extradition court.
convert the determination of a prima facie case
into a full-blown trial of the entire proceedings Q: Will Mark Jimenez detention prior to the
and possibly make trial of the main case conclusion of the extradition proceedings not
superfluous. This scenario is also anathema to the amount of his right to due process?
summary nature of extraditions. A: Contrary to his contention, his detention prior
to the conclusion of the extradition proceedings
That the case under consideration is an does not amount to a violation of his right to due
extradition and not a criminal action is not process. We reiterate the familiar doctrine that
sufficient to justify the adoption of a set of the essence of due process is the opportunity to
procedures more protective of the accused. If a be heard but, at the same time, point out that
different procedure were called for at all, a more the doctrine does not always call for a prior
restrictive one – not the opposite – would be opportunity to be heard. Where the
justified in view of respondent’s demonstrated circumstances—such as those present in an
predisposition to flee. extradition case – call for it, a subsequent
opportunity to be heard is enough. In the present
case, respondent will be given full opportunity to expressly guaranteeing the right to bail in
be heard subsequently, when the extradition court extradition proceedings, adopting the practice of Notes:
hears the Petition for Extradition. Hence, there is not granting them bail, as a general rule, would
no violation of his right to due process and be a step towards deterring fugitives from coming
fundamental fairness. to the Philippines to hide from or evade their
prosecutors.
Contrary to the contention of Jimenez, we find no
arbitrariness, either, in the immediate deprivation The denial of bail as a matter of course in
of his liberty prior to his being heard. That his extradition cases falls into place with and gives
arrest and detention will not be arbitrary is life to Article 14 of the Treaty, since this practice
sufficiently ensured by: would encourage the accused to voluntarily
surrender to the requesting state to cut short
1) The DOJ’s filing in court of the Petition with their detention here. Likewise, their detention
its supporting documents after a pending the resolution of extradition proceedings
determination that the extradition request would fall into place with the emphasis of the
meets the requirements of the law and the Extradition Law on the summary nature of
relevant treaty; extradition cases and the need for their speedy
disposition.
2) The extradition judge’s independent prima
facie determination that his arrest will best Q: What are the exceptions to the “No Bail”
serve the ends of justice before the issuance Rule in Extradition Proceedings?
of a warrant for his arrest; and A: The rule, we repeat, is that bail is not a matter
of right in extradition cases.
3) His opportunity, once he is under the court’s
custody, to apply for bail as an exception to However, the judiciary has the constitutional duty
the no-initial-bail rule. to curb grave abuse of discretion and tyranny, as
well as the power to promulgate rules to protect
It is also worth noting that before the US and enforce constitutional rights. Furthermore,
government requested the extradition of we believe that the right to due process is broad
respondent, proceedings had already been enough to include the grant of basic fairness to
conducted in that country. But because he left extraditees. Indeed, the right to due process
the jurisdiction of the requesting state before extends to the “life, liberty or property” of every
those proceedings could be completed, it was person. It is “dynamic and resilient, adaptable to
hindered from continuing with the due processes every situation calling for its application.”
prescribed under its laws. His invocation of due
process now has thus become hollow. He already Accordingly and to best serve the ends of justice,
had that opportunity in the requesting state; yet we believe and so hold that, after a potential
instead of taking it, he ran away. extraditee has been arrested or placed under the
custody of the law, bail may be applied for and
In this light, would it be proper and just for the granted as an exception, only upon a clear and
government to increase the risk of violating its convincing showing of the following:
treaty obligations in order to accord Respondent
Jimenez his personal liberty in the span of time 1) That, once granted bail, the applicant will
that it takes to resolve the Petition for not be a flight risk or a danger to the
Extradition? His supposed immediate deprivation community; and
of liberty without the due process that he had 2) That there exist special, humanitarian and
previously shunned pales against the government’s compelling circumstances including, as a
interest in fulfilling its Extradition Treaty matter of reciprocity, those cited by the
obligations and in cooperating with the world highest court in the requesting state when it
community in the suppression of crime. Indeed, grants provisional liberty in extradition case
“constitutional liberties do not exist in a vacuum; therein.
the due process rights accorded to individuals 3) That, the extraditee will abide with all the
must be carefully balanced against exigent and orders and processes of the extradition court.
palpable government interests.”
Too, we cannot allow our country to be a haven Since this exception has no express or specific
for fugitives, cowards and weaklings who, instead statutory basis, and since it is derived essentially
of facing the consequences of their actions, from general principles of justice and fairness,
choose to run and hide. Hence, it would not be the applicant bears the burden of proving the
good policy to increase the risk of violating our above two-tiered requirement with clarity;
treaty obligations if, through overprotection or precision and emphatic forcefulness.
excessively liberal treatment, persons sought to
be extradited are able to evade arrest or escape The Court realizes that extradition is basically an
executive; not a judicial, responsibility arising
from our custody. In the absence of any provision
- in the Constitution, the law or the treaty - from the presidential power to conduct foreign
relations. In its barest concept, it partakes of the grant of bail not be justified. Giving premium to
nature of police assistance amongst states, which delay by considering it as a special circumstance Notes:
is not normally a judicial prerogative. for the grant of bail would be tantamount to
giving him the power to grant bail to himself. It
Hence, any intrusion by the courts into the would also encourage him to stretch out and
exercise of this power should be characterized by unreasonably delay the extradition proceedings
caution, so that the vital international and even more. This we cannot allow.
bilateral interests of our country will not be
unreasonably impeded or compromised. In short, 3. Not a Flight Risk?
while this Court is ever protective of “the
sporting idea of fair play,” it also recognizes the Jimenez further claims that he is not a flight risk.
limits of its own prerogatives and the need to To support this claim, he stresses that he learned
fulfill international obligations. of the extradition request in June 1999; yet, he
has not fled the country. True, he has not actually
Along this line, Jimenez contends that there are fled during the preliminary stages of the request
special circumstances that are compelling enough for his extradition. Yet, this fact cannot be taken
for the Court to grant his request for provisional to mean that he will not flee as the process moves
release on bail. We have carefully examined forward to its conclusion, as he hears the
these circumstances and shall now discuss them. footsteps of the requesting government inching
closer and closer. That he has not yet fled from
1. Alleged Disenfranchisement the Philippines cannot be taken to mean that he
will stand his ground and still be within reach of
While his extradition was pending, Respondent our government if and when it matters; that is,
Jimenez was elected as a member of the House of upon the resolution of the Petition for Extradition.
Representatives. On that basis, he claims that his
detention will disenfranchise his Manila district of In any event, it is settled that bail may be applied
600,000 residents. We are not persuaded. In for and granted by the trial court at anytime after
People vs. Jalosjos, the Court has already the applicant has been taken into custody and
debunked the disenfranchisement argument xxx. prior to judgment, even after bail has been
previously denied. In the present case, the
extradition court may continue hearing evidence
It must be noted that even before private on the application for bail, which may be granted
respondent ran for and won a congressional seat in accordance with the guidelines in this Decision.
in Manila, it was already of public knowledge that
the United States was requesting extradition. Discuss the Ten Points in
Hence, his constituents were or should have been Extradition proceedings.
prepared for the consequences of the extradition
case against their representative, including his 1) The ultimate purpose of extradition
detention pending the final resolution of the case. proceedings is to determine whether the request
Premises considered and in line with Jalosjos, we expressed in the petition, supported by its
are constrained to rule against his claim that his annexes and the evidence that may be adduced
election to public office is by itself a compelling during the hearing of the petition, complies with
reason to grant him bail. the Extradition Treaty and Law and whether the
person sought is extraditable. The proceedings
2. Anticipated Delay are intended merely to assist the requesting state
in bringing the accused -- or the fugitive who has
Respondent Jimenez further contends that illegally escaped -- back to its territory, so that
because the extradition proceedings are lengthy, the criminal process may proceed therein.
it would be unfair to confine him during the
pendency of the case. Again we are not 2) By entering into an extradition treaty, the
convinced. We must emphasize that extradition Philippines is deemed to have reposed its trust in
cases are summary in nature. They are resorted the reliability or soundness of the legal and
to merely to determine whether the extradition judicial system of its treaty partner, as well as in
petition and its annexes conform to the the ability and the willingness of the latter to
Extradition Treaty, not to determine guilt or grant basic rights to the accused in the pending
innocence. Neither is it, as a rule, intended to criminal case therein.
address issues relevant to the constitutional rights
available to the accused in a criminal action. We 3) By nature then, extradition proceedings are
are not overruling the possibility that petitioner not equivalent to a criminal case in which guilt
may, in bad faith, unduly delay the proceedings. or innocence is determined. Consequently, an
This is another matter that is not at issue here. extradition case is not one in which the
Thus, any further discussion of this point would be constitutional rights of the accused are
merely anticipatory and academic. However, if necessarily available. It is more akin, if at all, to
the delay were due to maneuverings of a court’s request to police authorities for the
respondent, with all the more reason would the
arrest of the accused who is at large or has

escaped detention or jumped bail. Having once 9) On the other hand, courts merely perform Notes:
escaped the jurisdiction of the requesting state, oversight functions and exercise review
the reasonable prima facie presumption is that authority to prevent the exercise of grave
the person would escape again if given the abuse and tyranny. They should not allow
opportunity. contortions, delays and “over-due process”
every little step of the way, lest these
4) Immediately upon receipt of the petition summary extradition proceedings become not
for extradition and its supporting documents, only inutile but also sources of international
the judge shall make a prima facie finding embarrassment due to our inability to comply
whether the petition is sufficient in form and in in good faith with a treaty partner’s simple
substance, whether it complies with the request to return a fugitive. Worse our
Extradition Treaty and the Law, and whether the country should not be converted into a
person sought is extraditable. The magistrate has dubious haven where fugitives and escapes
discretion to require the petitioner to submit can unreasonably delay, mummify, mock,
further documentation, or to personally examine frustrate, checkmate and defeat the quest
the affiants or witnesses. If convinced that a for bilateral justice and international
prima facie case exists, the judge immediately cooperation.
issues a warrant for the arrest of the potential
extraditee and summons him or her to answer and 10) At the bottom, extradition proceedings
to appear at scheduled hearing on the petition. should be conducted with all deliberate
speed to determine compliance with the
5) After being taken into custody, potential Extradition Treaty and the Law; and while
extraditees may apply for bail. Since the safeguarding basic individual rights, to avoid
applicants have a history of absconding, they have the legalistic contortions, delays and
the burden of showing that (a) their is no flight technicalities that may negate that purpose.
risk and no danger to the community; and (b)
there exist a special, humanitarian or compelling
circumstances. The grounds used by the highest CUEVAS V. MUŇOZ
court in the requesting state for the grant of bail G.R. No. 140520, 18 December 2000, Second
therein may be considered, under the principle of Division, De Leon, J.
reciprocity as a special circumstance.
JUAN ANTONIO MUÑOZ is charged with seven (7)
In extradition cases, bail is not a matter of right;
counts of accepting an advantage as an agent
it is subject to judicial discretion in the context of
contrary to Section 9(1)(a) of the Prevention of
the peculiar facts of each case.
Bribery Ordinance of. Cap 201 of Hong Kong, and
seven (7) counts of conspiracy to defraud,
6) Potential extraditees are entitled to the
contrary to the common law of Hong Kong, for
rights to due process and to fundamental
each count of which, if found guilty, he may be
fairness. Due process does not always call for
punished with seven (7) and fourteen (14) years
a prior opportunity to be heard. A
imprisonment, respectively. The Hong Kong
subsequent opportunity to be heard is
Magistrate’s Court issued a warrant for his arrest.
sufficient due process to the flight risk
Thereafter, the Philippine DOJ received a request
involved. Indeed, available during the
for the provisional arrest of MUÑOZ pursuant to
hearings on the petition and the answer is the
the RP-Hong Kong Extradition Agreement. The
full chance to be heard and to enjoy
Philippine DOJ forwarded the request for
fundamental fairness that is compatible with
provisional arrest to the NBI, which filed an
the summary nature of extradition.
application for the provisional arrest of MUÑOZ
with RTC of Manila for and in behalf of the
7) This Court will always remain a protector of
government of Hong Kong. RTC granted the
human rights, a bastion of liberty, a bulwark
application. However, CA declared the Order of
of democracy and the conscience of society.
Arrest null and void.
But it is also well aware of the limitations of
its authority and of the need for respect for
the prerogatives of the other co-equal and ISSUE: Whether Munoz should be provisionally
co-independent organs of government. arrested
8) We realize that extradition is essentially an HELD:

executive, not a judicial, responsibility There was urgency for the provisional arrest of
arising out of the presidential power to the respondent. “Urgency" connotes such
conduct foreign relations and to implement conditions relating to the nature of the offense
treaties. Thus, the Executive Department of charged and the personality of the prospective
government has broad discretion in its duty extraditee which would make him susceptible to
and power of implementation. the inclination if he were to learn about the
impending request for his extradition and/or warrant of arrest or judgement of conviction
likely to destroy the evidence pertinent to the against that person; (3) a statement of penalty for Notes:
said request or his eventual prosecution and that offense; and (4) such further information as
without which the latter could not proceed. Such would justify the issue of a warrant of arrest had
conditions exist in Munoz’s case. the offense been committed or the person
convicted within the jurisdiction of the requested
At the time the request for provisional arrest was party. That the enumeration does not specify that
made, respondent’s pending application for the these documents must be authenticated copies, is
discharge of a restraint order over certain assets not a mere omission of law. This may be gleaned
held in relation to the offenses with which he is from the fact that while Article 11(1) does not
being charged, was set to be heard by the Court require the accompanying documents of a request
of First Instance of Hong Kong on September 17, for provisional arrest to be authenticated, Article
1999. The Hong Kong DOJ was concerned that the 9 of the same Extradition Agreement makes
pending request for the extradition of the authentication a requisite for admission in
respondent would be disclosed to the latter during evidence of any document accompanying a
the said proceedings, and would motivate request for surrender or extradition. In other
respondent to flee the Philippines before the words, authentication is required for the request
request for extradition could be made. for surrender or extradition but not for the
request for provisional arrest.
There is also the fact that respondent is charged
with seven (7) counts of accepting an advantage the provisions of PD 1069 and the RP-Hong Kong
as an agent and seven (7) counts of conspiracy to Extradition Agreement, as they are worded, serve
defraud, for each count of which, if found guilty, the purpose sought to be achieved by treaty
he may be punished with seven (7) and fourteen stipulations for provisional arrest. The process of
(14) years imprisonment, respectively. preparing a formal request for extradition and its
Undoubtedly, the gravity of the imposable penalty accompanying documents, and transmitting them
upon an accused is a factor to consider in through diplomatic channels, is not only time-
determining the likelihood that the accused will consuming but also leakage-prone. There is
abscond if allowed provisional liberty. It is, after naturally a great likelihood of flight by criminals
all, but human to fear a lengthy, if not a lifetime, who get an intimation of the pending request for
incarceration. Furthermore, it has also not their extradition. To solve this problem, speedier
possessed of sufficient resources to facilitate an initial steps in the form of treaty stipulations for
escape from this jurisdiction. provisional arrest were formulated. Thus, it is an
accepted practice for the requesting state to rush
its request in the form of a telex or diplomatic
That respondent did not flee despite the cable, the practically of the use of which in
investigation conducted by the Central bank and conceded. even our own Extradition Law (PD
the NBI way back in 1994, nor when the warrant 1069) allows the transmission of a request for
for his arrest was issued by the Hong Kong ICAC in provisional arrest via telegraph. In the advent of
August 1997, is not a guarantee that he will no modern technology, the telegraph or cable have
flee now that proceedings for his extradition are been conveniently replaced by the facsimile
well on the way. Respondent is about to leave the machine. Therefore, the transmission by the Hong
protective sanctuary of his mother state to face Kong DOJ of the request for respondent’s
criminal charges in another jurisdiction. It cannot provisional arrest and the accompanying
be denied that this is sufficient impetus for him to documents, namely, a copy of the warrant of
flee the country as soon as the opportunity to do arrest against respondent, a summary of the facts
so arises. of the case against him, particulars of his birth
Respondent also avers that his mother’s impending and address, a statement of the intention to
death makes it impossible for him to leave the request his provisional arrest and the reason
country. However, by respondent’s own admission, therefor, by fax machine, more than serves this
his mother finally expired at the Cardinal Santos purpose of expediency.
Hospital in Madaluyong City last December 5,
1999.24
In tilting the balance in favor of the interests of
the State, the Court stresses that it is not ruling
The request for provisional arrest of respondent that the private respondent has no right to due
and its accompanying document are valid despite process at all throughout the length and breath of
lack of authentication. There is no requirement the extrajudicial proceedings. Procedural due
for the authentication of a request for provisional process requires a determination of what process
arrest and its accompanying documents. The is due when it is due and the degree of what is
pertinent provision of the RP-Hong Kong due. Stated otherwise, a prior determination
Extradition Agreement enumerates the documents should be made as to whether procedural
that must accompany the request, as follows: (1) protections are at all due and when they are due,
an indication of the intention to request the which in turn depends on the extent to which an
surrender of the person sought; (2) the text of a
individual will be condemned to suffer grievous person is not a flight risk and will abide with all
loss,’ We have explained why an extraditee has the orders and processes of the extradition court. Notes:
not right to notice and hearing during the
evaluation stage of the extradition process. As Thus held the Supreme Court in dismissing the
aforesaid, P.D. 1069 xxx affords an extraditee petition of the Government of Hong Kong Special
sufficient opportunity to meet the evidence Administrative Region to nullify two orders by a
against him once the petition is filed in court. The Manila Regional Trial Court (RTC) allowing a
time for the extraditee to know the basis of the potential extraditee to post bail.
request for his extradition is merely moved to the
filing in court of the formal petition for
In a unanimous decision penned by Justice
extradition. The extradites right to know is
momentarily withheld during the evaluation stage Angelina Sandoval-Gutierrez in Government of
Hong Kong v. Judge Olalia, Jr. and Muñoz (GR No.
of the extradition process to accommodate the
more compelling interest of the State to prevent 153675), the Court also remanded to the Manila
RTC, Branch 8 to determine whether Juan Antonio
escape of potential extradites which can be
precipitated by premature which can be Muñoz is entitled to bail on the basis of “clear and
convincing evidence.” If Muñoz is not entitled to
precipitated by premature information of the
basis of the request for his extradition. No Less such, the trial court should order the cancellation
of his bail bond and his immediate detention; and
compelling at that stage of the extradition
proceedings is the need to be more deferential to thereafter, conduct the extradition proceedings
with dispatch.
the judgement of a co-equal branch of the
governments, the Executive, which has been
endowed by our Constitution with greater power Muñoz was charged before the Hong Kong Court
over matters involving our foreign relations. with three counts of the offense of “accepting an
Needless to state, this balance of interests is not advantage as agent,” in violation of sec. 9 (1) (a)
a static but a moving balance which can be of the Prevention of Bribery Ordinance, Cap. 201
adjusted as the extradition process moves from of Hong Kong. He also faces seven counts of the
the administrative stage to the execution stage offense of conspiracy to defraud, penalized by the
depending on factors that will come into play. In common law of Hong Kong.
sum, we rule that the temporary hold on private
respondent’s privilege of notice and hearing is a Citing the various international treaties giving
soft retrains on his right to due process which will recognition and protection to human rights, the
not deprive him of fundamental fairness should he Court saw the need to reexamine its ruling in
decide to resist the request for his extradition to Government of United States of America v. Judge
the United States. There is no denial of due Purganan which limited the exercise of the right
process as long as fundamental fairness is assured to bail to criminal proceedings.
a party.
It said that while our extradition law does not
GOVERNMENT OF HONG KONG SPECIAL provide for the grant of bail to an extraditee,
ADMINISTRATIVE REGION V. JUDGE OLALIA, JR. there is no provision prohibiting him or her from
AND MUÑOZ, filing a motion for bail, a right under the
GR No. 153675, April 19, 2007 Constitution.
“The time-honored principle of pacta sunt

Bail Can Be Granted to Potential Extraditee on servanda demands that the Philippines honor its
Basis of Clear and Convincing Evidence obligations under the Extradition
Treaty….However, it does not necessarily mean
In its petition, Hong Kong sought the nullification that in keeping with its treaty obligations, the
of the Manila RTC’s December 20, 2001 Order Philippines should diminish a potential
allowing Muñoz to post bail, and April 10, 2002 extraditee’s rights to life, liberty, and due
Order denying the motion to vacate the said Order process. More so, where these rights are
filed by the Government of Hong Kong Special guaranteed, not only by our Constitution, but also
Administrative Region, represented by the by international conventions, to which the
Philippine Department of Justice. Hong Kong Philippines is a party. We should not, therefore,
alleged that both Orders were issued by the judge deprive an extraditee of his right to apply for bail,
with grave abuse of discretion amounting to lack provided that a certain standard for the grant is
or excess of jurisdiction as there is no provision in satisfactorily met,” the Court said.
the Constitution granting bail to a potential
extraditee. RP, being a signatory to the 1996 UN General
Assembly which adopted the International
A potential extraditee may be granted bail on the Covenant on Civil and Political Rights, is “under
basis of clear and convincing evidence that the obligation to make available to every person
under detention such remedies which safeguard
their fundamental right to liberty,” said the religion, nationality or political opinion and is
Court. The RP and Hong Kong signed in 1995 an unable or, because of such fear, is unwilling to Notes:
extradition treaty which became effective in avail himself of the protection of the government
1997. of the country of his nationality, or, if he has no
nationality, to return to the country of his former
habitual residence.
The Court noted that Munoz had been detained
from September 23, 1999 to December 20, 2001,
3 Essential Elements to be considered a
or for over two years without having been
Refugee:
convicted of any crime.
1) The person is outside the country of his
nationality, or in the case of stateless
“If bail can be granted in deportation cases, we persons, outside the country of habitual
see no justification why it should not also be residence;
allowed in extradition cases. Likewise, 2) The person lacks national protection;
considering that the Universal Declaration of 3) The person fears persecution in his own
Human Rights applies to deportation cases, there country.
is no reason why it cannot be invoked in
extradition cases. After all, both are The second element makes, a refugee a stateless
administrative proceeding where the innocence or person. Because a refugee approximates a
guilt of the person detained is not in issue,” the stateless person, he can be compared to a vessel
Court said. on the open sea not sailing under the flag of any
state, or be called flotsam and res nullius.
It further said that even if a potential extradite is
a criminal, an extradition proceeding is not by its Only a person who is granted asylum by another
nature criminal, for it is not punishment for a state can apply for refugee status; thus the
crime, even though such punishment may follow refugee treaties imply the principle of asylum.
extradition. It added that “extradition is not a
trial to determine the guilt or innocence of Q: Sandoval’s Open Question No. 1
potential extraditee. Nor is it a full-blown civil Is a refugee is included in the term stateless
action, but one that is merely administrative in person or is it the other way around?
character. By Jay B. Rempillo (SC website)
Suggested Answer: Analyze the elements before
one could be considered a refugee.
The Right of Asylum
Every foreign State can be at least a provisional
asylum for any individual, who, being persecuted
in his home State, goes to another State. In the Non-Refoulment Principle
absence of any international treaty stipulating the Non-refoulment non-contracting state expel or
contrary, no state is, by international laws, return (refouler) a refugee, in any manner
obliged to refuse admission into its territory to whatsoever, to the frontiers of territories where
such a fugitive or in case he has been admitted, his life or freedom would be threatened. (Article
to expel him or deliver him up to the prosecuting 33 of the Convention Relating to the Status of
state. Refugees)
The Principle of the non-refoulment was declared
The right of asylum is not a right possessed by an to be a generally accepted principle by the
alien to demand that a state protect him and Convention relating to the status of stateless
grant him asylum. At present, it is just a privilege persons.
granted by a state to allow an alien escaping from
the persecution of his country for political reasons Nationality v. Citizenship
to remain and to grant him asylum. Nationality is the membership in a political
community with all its concomitant rights and
Q: Explain the right of asylum in international obligations. It is the tie that binds an individual
law. (Bar) to his state, from which he can claim protection
A: The right of asylum is the competence of from the laws, which he is also obliged to follow.
every state inferred from its territorial supremacy
to allow a prosecuted alien to enter and to remain Citizenship has a more exclusive meaning in that
on its territory under its protection and thereby it applies only to certain members of the state
grant asylum to him. accorded more privileges than the rest of the
people who owe it allegiance. Its significance is
Asylum and Refugees municipal and not international.
A refugee is any person who is outside the country
of his nationality or the country of his former Nationality is Important in Int’l Law
habitual residence because he has or had well It is important because an individual can
founded fear of persecution by reason of his race, ordinarily participate in international relations
only through the instrumentality of the state to like securing for himself a passport or
which he belongs, as when his government asserts visa and personal documents. Notes:
a claim on his behalf for injuries suffered by him
in foreign jurisdiction. This remedy would not be Q: Victor Korchnoi, a stateless resident of
available to a stateless person who will have no Switzerland, was the challenger to the world
state with international personality to intercede chess title held by Russian Anatoly Karpov.
for him under the laws of nations. After 32 grueling games were played in Baguio
city, Karpov finally retained his title of a close 6
Example, in the case of Holy See vs. Rosario, the to 5 win. Korchnoi protested no-payment of his
defendant in this case can invoke his rights prize money and alleged unfair treatment he
against the Holy See not under the Municipal Law received from the tournament organizers in the
but under International Law through his Philippines particularly in the 32nd crucial game,
government, which will espouse his cause of which he attributes as the main case of his
action in his behalf. If this happens, his concern defeat. May he press for his right to the prize
ceases to be a private one but becomes one for money against the Philippine government
the public, that is, for the state. through the Swiss government? (1978 Bar)
A: No, Switzerland even if she so desires, cannot
DOCTRINE OF EFFECTIVE NATIONALITY espouse a diplomatic claim against the Philippines
Within a third state, a person having more than in behalf of Victor Korchnoi. Nationality is the
one nationality shall be treated as if he had only basis of the right of state to espouse such claim.
one. Under the principle of effective nationality, In this case, Korchnoi is not a Swiss national but a
the third state shall recognized conclusively in its stateless person.
territory either the nationality of the country in
which he is habitually and principally present or Q: Is a stateless person entirely without right,
the nationality of the country with which he protection or recourse under the Law of
appears to be in fact most closely connected. Nations? Explain. (1995 Bar)
A: No. Under the Convention in Relation to the
Statelessness Status of Stateless Persons, the Contracting States
Statelessness is the condition or status of an agree to accord the stateless persons within their
individual who is born without any nationality or territories treatment at least as favorable as that
who loses his nationality without retaining or accorded their nationals with respect to;
acquiring another. a) Freedom of religion;
b) Access to the courts;
An example of the first case would be that of an c) Rationing of products in
individual born in a state where only the jus short supply;
sanguinis is recognized to parents whose state d) Elementary education;
observes only jus soli. The second case may be
e) Public relief and assistance;
illustrated by an individual who, after renouncing
his original nationality in order to be naturalized f) Labor legislation; and
in another state, is subsequently denaturalized g) Social Security
and thereafter denied repatriation by his former They also agree to accord them treatment not less
country. favorable than that accorded to aliens generally
in the same circumstances. The Convention also
Q: Who are stateless persons under provides for the issuance of identity papers and
International Law? (1995 Bar) travel documents to the stateless persons.
A: They are those who are not considered as
national by any state under the operation of its Q: What measures, if any, has International Law
laws. taken to prevent statelessness? (1995 Bar)
A: In the Convention on the Conflict of
Q: What are the consequences of statelessness? Nationality Laws of 1930, the Contracting States
(1995 Bar) agree to accord nationality to persons born in
A: These are: their territory who would otherwise be stateless.
i. No state can intervene or The convention on the Reduction of Statelessness
complain in behalf of the stateless of 1961 provides that if the law of the Contracting
person for an international delinquency States results in the loss of nationality, as a
committed by another state in inflicting consequence of marriage or termination of
injury upon him; marriage, such loss must be conditional upon
ii. He cannot be expelled by possession or acquisition of another nationality.
the state if he is lawfully in its territory
except on grounds of national security or
public order;
iii. He cannot avail himself of The Law on International Obligations
the protection and benefits of citizenship
Sources of International Obligations
The Law of Treaties Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000,
Treaty Defined En Banc [Buena]) Notes:
2 Kinds of Treaties
Parties Protocol de Clôture
Requisites for Validity A final act, sometimes called protocol de cloture
Peremptory Norm is an instrument which records the winding up of
Process of Treaty Making the proceedings of a diplomatic conference and
Principle of Alternat usually includes a reproduction of the texts of
Subject Matters of Treaties treaties, conventions, recommendations and other
Subject Matters of Executive Agreements acts agreed upon and signed by the
Most Favored Nation Clause plenipotentiaries attending the conference. It is
Pacta Sunt Servanda not the treaty itself. It is rather a summary of
Rebus Sic Stantibus the proceedings of a protracted conference which
Effect of Territorial Changes may have taken place over several years.
Interpretation of Treaties
Termination of Treaties Q: What is a "protocol de cloture"? Will it
State Responsibility for Injury to Aliens require concurrence by the Senate?
Doctrine of State Responsibility Held: A final act, sometimes called protocol de
Conditions for Enforcement of Claim cloture, is an instrument which records the
1. nationality of the claim winding up of the proceedings of a diplomatic
2. exhaustion of local remedies conference and usually includes a reproduction of
3. waiver the texts of treaties, conventions,
4. unreasonable delay recommendations and other acts agreed upon and
5. improper behavior by the injured alien signed by the plenipotentiaries attending the
Methods of Pressing Claims conference. It is not the treaty itself. It is rather
Nature and Measure of Damages a summary of the proceedings of a protracted
conference which may have taken place over
¯°º°¯ several years. It will not require the concurrence
of the Senate. The documents contained therein
Sources: are deemed adopted without need for
1) International agreements – e.g. treaties ratification. (Tanada v. Angara, 272 SCRA 18, May
concluded between States 2, 1997 [Panganiban])
2) Customary international law – e.g. the
doctrine of rebus sic stantibus Treaty as main instrument
“The treaty is the main instrument with which the
A. THE LAW OF TREATIES society of States is equipped for the purpose of
Treaty Defined carrying out its multifarious transactions.” LORD
Q: What is a Treaty? Discuss. McNAIR
Held: A treaty, as defined by the Vienna
Convention on the Law of Treaties, is “an Synonymous words
international instrument concluded between a) Convention
States in written form and governed by b) Pact
international law, whether embodied in a single c) Protocol
instrument or in two or more related instruments, d) Agreement
and whatever its particular designation.” There e) Arrangement
are many other terms used for a treaty or f) Accord
international agreement, some of which are: act, g) Final Act
protocol, agreement, compromis d' arbitrage, h) General Act
concordat, convention, declaration, exchange of i) Exchange of Notes
notes, pact, statute, charter and modus vivendi.
All writers, from Hugo Grotius onward, have ☀ The use of particular terminology has no legal
pointed out that the names or titles of significance in international law. 
international agreements included under the
general term treaty have little or no significance. Matters usually dealt with by treaties:
Certain terms are useful, but they furnish little a) lease of naval bases
more than mere description b) the sale or cession of territory
c) the regulation of conduct of
Article 2(2) of the Vienna Convention provides hostilities
that “the provisions of paragraph 1 regarding the d) the termination of war
use of terms in the present Convention are e) the formation of alliances
without prejudice to the use of those terms, or to f) the regulation of commercial
the meanings which may be given to them in the relations
internal law of the State.” (BAYAN [Bagong g) the settling of claims
Alyansang Makabayan] v. Executive Secretary
h) the establishment of international a) Ratification – waiving the right to

organizations withdraw from the treaty and Notes:
2 Kinds of Treaties declaring its consent thereon as
a) traites-lois – law making treaties valid.
b) traits-contrats – contract treaties b) Estoppel - exercising its rights and
respecting the obligations in the
1969 Convention on the Law of Treaties treaty notwithstanding knowledge of
Adopted by the Conference of the Law of Treaties facts that vitiate its consent and
(Vienna Convention). Entered into force on exercises them without protest.
January 27, 1960. c) Prescription – filing of protest after
the lapse of allowable period within
PARTIES which the same may be entertained.
Rule: Only States may enter into treaties or Thus, the State is deemed to have
international agreements. Agreements between ratified its consent.
State and individuals or entities other than States
DO NOT come within the category of treaties. Remedy: Where the consent of a party
has been given in error or induced
Exceptions: States may enter into treaties or through fraud on the part of the other
international agreements with: party, the treaty would be VOIDABLE.
a) International Organizations Thus, the erring State must as soon as
b) Belligerent States possible or within the time given in the
treaty, withdraw or correct its consent.
4 Essentials of Validity
1) Capacity of parties
Rule: Every State possesses capacity to Consent How Given
conclude treaties as an attribute of its a) through a signature
sovereignty. b) exchange of instruments
c) ratification
Exceptions: d) acceptance
a) When it limits itself; or e) approval or accession; or
b) When it is limited by some other f) by other means so agreed.
international arrangements
respecting some matters. 4) Legality of Object
Rule: Immorality, illegality or
2) Competence of particular organs impossibility of purpose or obligations
concluding the treaty makes a treaty null and void. e.g. a
Rule: The municipal law of the State treaty by which a State agrees with
concerned shall determine what organ another to appropriate a portion of the
may conclude a treaty. As a rule, it is high seas.
the Head of State who possesses the
treaty-making power to be concurred in Exceptions:
by the legislative branch. a) If the immorality, illegality or
impossibility does not run counter to a
Exceptions: universally recognized peremptory norm
a) When it is in estoppel of international law but only against a
b) When it has performed acts remote and minor norm.
validating or curing the defects in
competence. b) If it does not contravene or depart
c) When it has received benefits or has from an absolute or imperative rule or
exercised its rights under the subject prohibition of international law. e.g. jus
treaty without expressly reserving its dispositivum.
non-liability or without interposing
other valid reasons for receiving or PEREMPTORY NORM
exercising it. A norm generally accepted by the international
community of States as a whole as a norm from
3) Reality of Consent which no derogation is permitted and which can
Rule: The plenipotentiaries of States or be modified only by a subsequent norm of general
the State itself must possess the capacity international law having the same character. e.g.
to consent which consent is given in a jus cogens
manner that is voluntary and free from
fear, force, coercion, intimidation, or Q: Explain, using example, jus cogens in
corruption. international law. (1991 Bar)
A: Jus cogens is a peremptory norm of general
Exceptions: international law accepted and recognized by the
international community as a whole. e.g. the b) it is otherwise established that the

prohibition against the use of force in dealing negotiating States were agreed that Notes:
with States. signatures should have that effect; or
c) the intention of the State to give that effect
INCOMPATIBILITY v. INCONSISTENCY to the signature appears from the full powers
Inconsistency raises the problem of conflict of of its representative or was expressed during
obligations. Incompatibility, on the other hand, the negotiations.
raises the question of nullity. e.g. Art. 103 of the
UN Charter provides that in the event of conflict Ratification
between the obligations of the Members under the The act by which the provisions of a treaty are
UN Charter and their obligations under any formally confirmed and approved by a State. By
international agreement, their obligations under ratifying a treaty signed in its behalf, a State
the UN Charter shall prevail. expresses its willingness to be bound by the
provisions of such treaty.
Effect of Form on Validity
There is no rule that treaties should be in written ☀ State may ratify a treaty only when it is a
form. Oral treaties are NOT prohibited. However, signatory to it.
orally agreed treaties are a rarity.
☀ There is no moral duty on the part of the
Note: The Vienna Convention, however, defines a States to ratify a treaty notwithstanding that
“treaty” as “an international agreement its plenipotentiaries have signed the same.
concluded between States in written form and This step, however, should not be taken
governed by international law, whether embodied lightly.
in a singe instrument or in two or more related
instruments and whatever its particular ☀ A treaty may provide that it shall not be valid
designation (is).” even ratified but shall be valid only after the
exchange or deposit of ratification has
transpired.
PROCESS OF TREATY-MAKING
Usual Steps Taken Q: What is ratification? Discuss its function in
1) Negotiation of parties the treaty-making process.
2) Signature of the agreed text Held: Ratification is generally held to be an
3) Ratification or accession executive act, undertaken by the head of state or
made by the treaty-making organs of States of the government, as the case may be, through
concerned which the formal acceptance of the treaty is
4) Exchange or deposit of the proclaimed. A State may provide in its domestic
instruments of ratification or accession. legislation the process of ratification of a treaty.
The consent of the State to be bound by a treaty
At present, treaties are prepared and adopted by is expressed by ratification when: (a) the treaty
means of international diplomatic conferences. provides for such ratification, (b) it is otherwise
Also, a large number of multilateral conventions established that the negotiating States agreed
have been adopted by international organizations that ratification should be required, (c) the
such as the General Assemble of the UN. representative of the State has signed the treaty
subject to ratification, or (d) the intention of the
Principle of Alternat State to sign the treaty subject to ratification
According to this principle, the order of the appears from the full powers of its
naming of the parties, and of the signatures of the representative, or was expressed during the
plenipotentiaries is varied so that each party is negotiation. (BAYAN [Bagong Alyansang
named and its plenipotentiary signs first in the Makabayan] v. Executive Secretary Ronaldo
coy of the instrument to be kept by it. Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc
[Buena])
★ However, with respect to treaties with many
parties, the practice is usually to arrange the Accession or Adherence
names alphabetically in English or in French. When a State, who has NOT SIGNED a treaty,
accedes to it.
Significance of Signature
Rule: The act of signature has little legal Binding Effects of a Treaty
significance except as a means of authenticating As a rule, a treaty is binding only on the
the text of the treaty. It is the act of ratification contracting parties, including not only the original
that is required to make a treaty binding. signatories but also other states, which, although
they may not have participated in the negotiation
Exceptions: of the agreement, have been allowed by its terms
a) the treaty provides that signature shall have to sign it later by a process known as accession.
such effect;
Non-parties are usually not bound under the people in a national referendum held for that
maxim of pacta tertiis nec noceat nec prosunt. purpose, and recognized as a treaty by the other Notes:
contracting State.
Q: Enumerate instances when a third State who
is non-signatory may be bound by a treaty. NOTE: This section prohibits, in the absence of a
A: treaty, the stationing of troops and facilities of
1. When a treaty is a mere formal foreign countries in the Philippines. However, it
expression of customary international law, DOES NOT INCLUDE the temporary presence in the
which, as such is enforceable on all civilized Philippines of foreign troops for the purpose of a
states because of their membership in the combined military exercise. Besides, the holding
family of nations. of combined military exercise is connected with
defense, which is a sovereign function.
2. Under Article 2 of its charter,
the UN shall ensure that non-member States Q: Discuss the binding effect of treaties and
act in accordance with the principles of the executive agreements in international law.
Charter so far as may be necessary for the Held: [I]n international law, there is no
maintenance of international peace and difference between treaties and executive
security. Under Article 103, obligations of agreements in their binding effect upon states
member-states shall prevail in case of concerned, as long as the functionaries have
conflict with any other international remained within their powers. International law
agreement including those concluded with continues to make no distinction between treaties
non-members. and executive agreements: they are equally
binding obligations upon nations. (BAYAN [Bagong
3. The treaty itself may expressly Alyansang Makabayan] v. Executive Secretary
extend its benefits to non-signatory states. Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000,
En Banc [Buena])
4. Parties to apparently unrelated
treaties may also be linked by the most- Q: Does the Philippines recognize the binding
favored nation clause. effect of executive agreements even without
the concurrence of the Senate or Congress?
§21, A.VII, 1987 Phil. Constitution Held: In our jurisdiction, we have recognized the
No treaty or international agreement shall be binding effect of executive agreements even
valid and effective unless concurred in by at least without the concurrence of the Senate or
2/3 of ALL the Members of the Senate. Congress. In Commissioner of Customs v. Eastern
Sea Trading (3 SCRA 351, 356-357 [1961]), we had
§20, A.VII, 1987 Phil. Constitution occasion to pronounce:
The President may contract or guarantee foreign
loans on behalf of the RP with the prior “x x x the right of the Executive to enter into
concurrence of the Monetary Board, and subject binding agreements without the necessity of
to such limitations as may be provided by law. subsequent Congressional approval has been
The MB shall, within 30 days from the end of confirmed by long usage. From the earliest days
every quarter of the calendar year, submit to the of our history we have entered into executive
Congress a complete report of its decisions on agreements covering such subjects as commercial
applications for loans to be contracted or and consular relations, most-favored-nation
guaranteed by the Government or government- rights, patent rights, trademark and copyright
owned and controlled corporations which would protection, postal and navigation arrangements
have the effect of increasing the foreign debt, and the settlement of claims. The validity of
and containing other matters as may be provided these has never been seriously questioned by our
by law. courts. " (BAYAN [Bagong Alyansang Makabayan] v.
Executive Secretary Ronaldo Zamora, G.R. No.
§4, A.XVIII, 1987 Phil. Constitution 138570, Oct. 10, 2000, En Banc [Buena])
All exiting treaties or international agreements
which have not been ratified shall not be renewed Q: An Executive Agreement was executed
or extended without the concurrence of at least between the Philippines and a neighboring
2/3 of ALL the Members of the Senate. State. The Senate of the Philippines took it
upon itself to procure a certified true copy of
§25, A.XVIII, 1987 Phil. Constitution the Executive Agreement and after deliberating
After the expiration in 1991 of the Agreement on it, declared, by a unanimous vote, that the
between the RP and the USA concerning the agreement was both unwise and against the
Military Bases, foreign military bases, troops, or best interest of the country. Is an Executive
facilities shall not be allowed in the Philippines Agreement binding from the standpoints a) of
except under a treaty duly concurred in by the Philippine law and b) of international law?
Senate and, when the Congress so requires, Explain. (2003 Bar)
ratified by a majority of the votes cast by the
A: a) YES, from the standpoint of Philippine law, immediately the min-Marshall plan for the
the Executive Agreement is binding. According to country involving ten billion US dollars in Notes:
Commissioner of Customs v. Eastern Sea Trading, 3 aids and concessional loans, and
S 351 [1961], the President can enter into an c) An undertaking to help persuade
Executive Agreement WITHOUT the necessity of American banks to condone interests and
concurrence by the Senate. other charges on the country’s outstanding
loans.
b) YES, it is also binding from the standpoint of
international law. As held in Bayan V. Zamora, In return, the President agreed to allow
342 S 449 [2000], in international law executive American nuclear vessels to stay for short visits
agreements are equally binding as treaties uon at Subic, and in case of vital military need, to
the States who are parties to them. Additionally, store nuclear weapons at Subic and at Clark
under Article 2(1)(a) of the Vienna Convention on Field. A vital military need comes, under the
the Law of Treaties, whatever may be the agreement, when hostile military forces
designation of a written agreement between threaten the sea-lanes from the Persian Gulf to
States, whether it is indicated as a Treaty, the Pacific.
Convention or Executive Agreement is not legally
significant. Still it is considered a treaty and The Nuclear Free Philippines Coalition comes to
governed by the international law of treaties. you for advice on how they could legally
prevent the same agreement entered into by
Q: The President authorized the Secretary of the President with the US government from
Public Works and Highways to negotiate and sign going into effect. What would you advice them
a loan agreement with the German Government to do? Give your reasons. (Bar)
for the construction of a dam. The Senate, by a A: If the agreement is not in the form of treaty, it
resolution, asked that the agreement be is not likely to be submitted to the Senate for
submitted to it for ratification. The Secretary ratification as required in Article VII, Section 21.
of Public Works and Highways did not comply It may not, therefore, be opposed in that branch
with the request of the Senate. (1994 Bar) of the government. Nor a judicial review is
a) Under the Constitution, feasible at this stage because there is no
what is the role of the Senate in the justiciable controversy. While Article VIII, Section
conduct of foreign affairs? 1, paragraph 2 states that judicial power includes
b) Is the president bound to the duty of courts of justice to “determine
submit the agreement to the Senate for whether or not there has been a grave abuse of
ratification? discretion amounting to lack or excess of
jurisdiction on the part of any branch or
A: instrumentality of the government,” it is clear
a) The Senate plays a that this provision does not do away with the
role in the conduct of foreign affairs, because political question doctrine. It was inserted in the
of the requirement in Section 21 Article VII of Constitution to prevent courts from making use of
the Constitution that to be valid and the doctrine to avoid what otherwise are
effective, a treaty or international agreement justiciable controversies, albeit involving the
must be concurred in by at least 2/3 of all Executive Branch of the government during the
members of the senate. martial law period. On the other hand, at this
b) No, the President stage, no justiciable controversy can be framed to
is not bound to submit the agreement to the justify judicial review. I would therefore advice
Senate for ratification. Under Section 20 the Nuclear Free Philippines Coalition to resort to
Article VII of the Constitution, only the prior the media to launch a campaign against
concurrence of the Monetary Board is Agreement
required for the President to contract foreign
loans on behalf of the Republic of the Subject Matter of Treaties
Philippines. 1) Political Issues
2) Changes in National Policies
Q: In accordance with the opinion of the 3) Involve International Agreements of a
Secretary of Justice, and believing that it would Permanent Character
be good for the country, the President enters
into an agreement with the Americans for an Subject Matter of EAs
extension for another five (5) years of their stay 1) Have transitory effectivity
at their military bases in the Philippines, in 2) Adjustment of details carrying out well-
consideration of: established national policies and traditions
a) A yearly rental of one billion US dollars, 3) Arrangements of temporary nature
payable to Philippine government in 4) Implementation of treaties, statutes, well
advance; established policies.
b) An undertaking on the part of the
American government to implement
Q: How does a treaty differ from executive effect of certain provisions of the treaty in their
agreement? application to that State. Notes:
A: An executive agreement is not a treaty in so
far as its ratification may not be required under When Reservation cannot be made
the Constitution. However, the distinction is a) If the treaty itself provides that NO
purely municipal and has no international reservation shall be admissible, or
significance. From the standpoint of international b) the treaty allows only specified reservations
law, “treaties and executive agreement are alike which do not include the reservation in
in that both constitute equally binding obligations question, or
upon the nations.” (FB Sayre, 39 Columbia Law c) the reservation is incompatible with the
Review, p. 75, 1939) object and purpose of the treaty.
Form and Time of Reservation
An executive agreement is NOT a treaty. As such, Written statement or declaration recorded at the
concurrence by two-thirds vote (2/3) of all the time of signing or ratifying or acceding to the
members of the Senate is not necessary for it to treaty.
become binding and effective.
Objected Reservations
Q: Is VFA a treaty or a mere executive Parties to the treaty may object to the
agreement? reservations of a State entering the treaty. A 1951
A: In the case of Bayan vs. Zamora, VFA was Advisory Opinion of the ICJ held that a reserving
considered a treaty because the Senate concurred State may be a party to a treaty notwithstanding
in via 2/3 votes of all its members. But in the that one or more parties to the convention, but
point of view of the US Government, it is merely not all, objects to its reservations and such
an executive agreement. reservations are not contrary to the object and
purpose of said convention.
Q: What is the implication if only the senate of REGISTRATION & PUBLICATION
the Philippines concur but not the senate of Article 102, UN Charter
USA? 1. Every treaty and every international agreement
A: None, it is only a matter of policy and the same entered into by any Member of the UN after the
is governed by their respective Municipal Law. present Charter comes into force shall as soon as
possible be registered with the Secretariat and
Q: Senate Bill No. 1234 was passed creating a published by it.
joint legislative-executive commission to give
on behalf of the Senate, its advice, consent and 2. No party to any such treaty or international
concurrence to treaties entered into by the agreement which has not been registered in
President. The bill contains the guidelines to accordance with the provisions of para.1 of this
be followed by the commission in the discharge Article may invoke that treaty or agreement
of its functions. Is the bill constitutional? (1996 before any organ of the UN.
Bar)
A: NO, the bill is not constitutional. The Senate ★ The treaty, however, remains valid although
cannot delegate its power to concur to treaties not registered and not published in the UN.
ratified by the President.
Entry into Force
Q: Can the House of Representatives take active Means the date of effectivity of a treaty as
part in the conduct of foreign relations, provided in the stipulations of the parties. In the
particularly in entering into treaties and absence of such stipulation, it is deemed in force
international agreements? (1996 Bar) as soon as the consent of ALL the parties are
A: NO. As held in US v. Curtiss Wright Export established.
Corporation 299 US 304, it is the President alone
who can act as representative of the nation in the Q: Are Treaties Self-Executing?
conduct of foreign affairs. Although the Senate A: Qualified answer. In international law, it self-
has the power to concur in treaties, the President executes from the time of its entry into force.
alone can negotiate treaties and Congress is However, there is NO absolute rule that treaties
powerless to intrude into this. However, if the are self-executing within the sphere of municipal
matter involves a treaty or an executive law. Some municipal laws require further steps
agreement, the HR may pass a resolution such as publication and promulgation before it
expressing its views on the matter. can produce legal effect.
Reservations ★ Nevertheless, in the Philippines, treaties are

A unilateral statement, however phrased or part of the law of the land. INCORPORATION
named, made by a State, when signing, ratifying, CLAUSE.
accepting, approving, or acceding to a treaty,
whereby it purports to exclude or modify the legal MOST-FAVORED-NATION CLAUSE
Q: What is the “most-favored-nation” clause? refund of overpaid withholding tax on royalties

What is its purpose? pursuant to the most-favored-nation clause of the Notes:
A: 1. The most-favored-nation clause may be RP-US Tax Treaty in relation to the RP-West
defined, in general, as a pledge by a contracting Germany Tax Treaty. It held:
party to a treaty to grant to the other party
treatment not less favorable than that which has Given the purpose underlying tax treaties and the
been or may be granted to the “most favored” rationale for the most favored nation clause, the
among other countries. The clause has been concessional tax rate of 10 percent provided for in
commonly included in treaties of commercial the RP-Germany Tax Treaty should apply only if
nature. the taxes imposed upon royalties in the RP-US Tax
Treaty and in the RP-Germany Tax Treaty are paid
There are generally two types of most-favored- under similar circumstances. This would mean
nation clause, namely, conditional and that private respondent (S.C. Johnson and Son,
unconditional. According to the clause in its Inc.) must prove that the RP-US Tax Treaty grants
unconditional form, any advantage of whatever similar tax reliefs to residents of the United
kind which has been or may in future be granted States in respect of the taxes imposable upon
by either of the contracting parties to a third royalties earned from sources within the
State shall simultaneously and unconditionally be Philippines as those allowed to their German
extended to the other under the same or counterparts under the RP-Germany Tax Treaty.
equivalent conditions as those under which it has
been granted to the third State. (Salonga & Yap, The RP-US and the RP-West Germany Tax Treaties
Public International Law, 5th Edition, 1992, pp. do not contain similar provisions on tax crediting.
141-142) Article 24 of the RP-Germany Tax Treaty x x x
expressly allows crediting against German income
2. The purpose of a most favored nation clause is and corporation tax of 20% of the gross amount of
to grant to the contracting party treatment not royalties paid under the law of the Philippines.
less favorable than that which has been or may be On the other hand, Article 23 of the RP-US Tax
granted to the "most favored" among other Treaty, which is the counterpart provision with
countries. The most favored nation clause is respect to relief for double taxation, does not
intended to establish the principle of equality of provide for similar crediting of 20% of the gross
international treatment by providing that the amount of royalties paid. X x x
citizens or subjects of the contracting nations may
enjoy the privileges accorded by either party to X x x The entitlement of the 10% rate by U.S.
those of the most favored nation (Commissioner firms despite the absence of matching credit
of Internal Revenue v. S.C. Johnson and Son, Inc., (20% for royalties) would derogate from the design
309 SCRA 87, 107-108, June 25, 1999, 3rd Div. behind the most favored nation clause to grant
[Gonzaga-Reyes]) equality of international treatment since the tax
burden laid upon the income of the investor is not
Q: Explain the meaning of the concept of “most the same in the two countries. The similarity in
favored nation” treatment? (1997 Bar) the circumstances of payment of taxes is a
A: The most favored nation treatment is that condition for the enjoyment of most favored
granted by one country to another not less nation treatment precisely to underscore the need
favorable than that which has been or may be for equality of treatment.
granted to the most favored among other
countries. It usually applies to commercial 2 Types
transactions such as international trade and a) Unconditional – any advantage of whatever kind
investments. which has been or may in future be granted by
either of the contracting parties to a third State
Q: What is the essence of the principle behind shall simultaneously and unconditionally be
the "most-favored-nation" clause as applied to extended to the other under the same or
tax treaties? equivalent conditions as those under which it has
Held: The essence of the principle is to allow the been granted to the third State.
taxpayer in one state to avail of more liberal
provisions granted in another tax treaty to which b) Conditional – advantages are specified and
the country of residence of such taxpayer is also a limited not universal.
party provided that the subject matter of taxation
x x x is the same as that in the tax treaty under CIR V. JOHNSON & SON, INC. (1999)
which the taxpayer is liable.
The purpose of a most favored nation clause is to
In Commissioner of Internal Revenue v. S.C. grant to the contracting party treatment not less
Johnson and Son, Inc., 309 SCRA 87, June 25, favorable than that which has been or may be
1999, the SC did not grant the claim filed by S.C. granted to the "most favored" among other
Johnson and Son, Inc., a non-resident foreign countries. The most favored nation clause is
corporation based in the USA, with the BIR for intended to establish the principle of equality of
international treatment by providing that the justice, freedom, cooperation and amity with all
citizens or subjects of the contracting nations may nations." Under the doctrine of incorporation, Notes:
enjoy the privileges accorded by either party to rules of international law form part of the law of
those of the most favored nation. the land and no further legislative action is
needed to make such rules applicable in the
PACTA SUNT SERVANDA (PSS) domestic sphere (citing Salonga & Yap, Public
(AGREEMENT MUST BE KEPT) International Law, 1992 ed., p. 12).
Means that treaties must be performed in good
faith. One of the oldest and most fundamental CIR V. ROBERTSON (1986)
rules of international law.
"The obligation to fulfill in good faith a treaty
Q: Explain the “pacta sunt servanda” rule. engagement requires that the stipulations be
Held: One of the oldest and most fundamental observed in their spirit as well as according to
rules in international law is pacta sunt servanda – their letter and that what has been promised be
international agreements must be performed in performed without evasion, or subterfuge,
good faith. “A treaty engagement is not a mere honestly and to the best of the ability of the party
moral obligation but creates a legally binding which made the promise." (citing Kunz, The
obligation on the parties x x x. A state which has Meaning and Range of the Norm (Pacta Sunt
contracted valid international obligations is bound Servanda, 29 A.J.I.L. 180 (1945); cited in
to make in its legislations such modifications as Freidmann, Lisstzyn, Pugh, International Law
may be necessary to ensure the fulfillment of the (1969) 329). Somehow, the ruling becomes an
obligations undertaken.” (Tanada v. Angara, 272 anacoluthon and a persiflage.
SCRA 18, May 2, 1997 [Panganiban])
Influences to ensure observance to PSS AGUSTIN V. EDU (1979)

a) national self-interest
b) a sense of duty t is not for this country to repudiate a
c) respect for promises solemnly given commitment to which it had pledged its word.
d) desire to avoid the obloquy attached The concept of pacta sunt servanda stands in the
to breach of contracts way of such an attitude, which is, moreover, at
▪ Breach involves the obligation to make war with the principle of international morality.
reparations. There is, however, no
necessity to state this rule of reparation REBUS SIC STANTIBUS (RSS)
in the treaty itself because they are (THINGS REMAINING AS THEY ARE)
indispensable complement of failure to This doctrine involves the legal effect of change
comply to one’s obligations. in conditions underlying the purposes of a treaty.
Simply stated, the disappearance of the
TAÑADA V. ANGARA (1997) foundation upon which it rests.
One of the oldest and most fundamental rules in Authors, jurists, and tribunals are varied in the
international law is pacta sunt servanda - application of this doctrine. A majority, however,
international agreements must be performed in hold that “the obligation of a treaty terminates
good faith. "A treaty engagement is not a mere when a change occurs in circumstances which
moral obligation but creates a legally binding existed at the time of the conclusion of the treaty
obligation on the parties x x x. A state which has and whose continuance formed, according to the
contracted valid international obligations is bound intention or will of the parties, a condition of the
to make in its legislations such modifications as continuing validity of the treaty.” The change
may be necessary to ensure the fulfillment of the must be vital or fundamental. Also, under this
obligations undertaken." doctrine, a treaty terminates if the performance
of obligations thereof will injure fundamental
rights or interests of any one of the parties.
SEC. OF JUSTICE V. LANTION (2000)
Explain the "rebus sic stantibus" rule (i.e.,
The rule of pacta sunt servanda, one of the oldest things remaining as they are). Does it operate
and most fundamental maxims of international automatically to render a treaty inoperative?
law, requires the parties to a treaty to keep their Held: According to Jessup, the doctrine
agreement therein in good faith. The observance constitutes an attempt to formulate a legal
of our country's legal duties under a treaty is also principle which would justify non-performance of
compelled by Section 2, Article II of the a treaty obligation if the conditions with relation
Constitution which provides that "[t]he Philippines to which the parties contracted have changed so
renounces war as an instrument of national policy, materially and so unexpectedly as to create a
adopts the generally accepted principles of situation in which the exaction of performance
international law as part of the law of the land, would be unreasonable. The key element of this
and adheres to the policy of peace, equality, doctrine is the vital change in the condition of the
contracting parties that they could not have conditions, and once these conditions cease to
foreseen at the time the treaty was concluded. exist, the contract also ceases to exist. This Notes:
theory is said to be the basis of Article 1267 of the
The doctrine of rebus sic stantibus does not Civil Code, which provides:
operate automatically to render the treaty
inoperative. There is a necessity for a formal act “ART. 1267. When the service has become so
of rejection, usually made by the head of state, difficult as to be manifestly beyond the
with a statement of the reasons why compliance contemplation of the parties, the obligor may also
with the treaty is no longer required. (Santos III be released therefrom, in whole or in part.”
v. Northwest Orient Airlines, 210 SCRA 256, June
23, 1992)
This article, which enunciates the doctrine of
Limitations to RSS unforeseen events, is NOT, however, an absolute
a) It applies only to treaties of indefinite application of the principle of rebus sic stantibus,
duration; which would endanger the security of contractual
b) The vital change must have been unforeseen relations. The parties to the contract must be
or unforeseeable and should have not been presumed to have assumed the risks of
caused by the party invoking the doctrine. unfavorable developments. It is therefore only in
c) It must be invoked within reasonable time; absolutely exceptional changes of circumstances
and that equity demands assistance for the debtor
d) It cannot operate retroactively upon the
provisions of a treaty already executed prior EFFECT OF TERRITORIAL CHANGES
to the change in circumstances. (1978 CONVENTION ON SUCCESSION OF STATES IN
RESPECT TO TREATIES)
Rules Governing Termination of RSS
a) a fundamental change (FC) must have Dispositive Treaties
occurred with respect to circumstances These are treaties which deal with rights over
existing at the time of the conclusion of the territory and are deemed to run with the land and
treaty; are not affected by changes of sovereignty. e.g.
b) the existence of those circumstances treaties dealing with boundaries between States.
constituted the basis of the consent of the
parties to be bound by the treaty; and ▪ When an existing State acquires a territory, it
c) the change has radically transformed the does not succeed to the predecessor State’s
extent of the obligations still to be performed treaties, but its own treaties becomes applicable
under the treaty. to the newly acquired territory.
New States Formed Through Decolonization

When FC cannot be invoked a) a new State is under NO obligation to succeed
a) if the treaty establishes a boundary to the old State as a party to a multilateral
b) if the FC is the result of the breach by the treaty, but if it wants to do so, it has to
party invoking it of an obligation owed to any notify the depository that it regards itself as
other party to the treaty. a succeeding party to the treaty.
b) a new State can be a party to an existing
SANTOS V. NORTHWEST AIRLINES (1992) treaty between the predecessor State and
another State only if the other State and the
new State both agree. Such, however, may
Obviously, rejection of the treaty, whether on the be implied from the conduct of both States.
ground of rebus sic stantibus or pursuant to
Article 39, is NOT a function of the courts but of New States Formed Through Secession or
the other branches of government. This is a Disintegration
political act. The conclusion and renunciation of Succeeds AUTOMATICALLY to most of the
treaties is the prerogative of the political predecessor’s treaties applicable to the territory
departments and may not be usurped by the that has seceded or disintegrated.
judiciary. The courts are concerned only with the
interpretation and application of laws and treaties ☀ “Clean Slate” Doctrine – Under this doctrine,
in force and not with their wisdom or efficacy. seceding or disintegrating States DOES NOT
make succession to an existing treaty
automatic.
PNCC V. CA (1997) Interpretation of Treaties

A treaty shall be interpreted in good faith in
The principle of rebus sic stantibus neither fits in accordance with the ordinary meaning to be given
with the facts of the case. Under this theory, the to the terms of the treaty in their context and in
parties stipulate in the light of certain prevailing
the light of its object and purpose. There are, B. STATE RESPONSIBILITY FOR INJURY TO ALIENS
however, NO TECHNICAL RULES. Rule: NO State is under obligation to admit aliens. Notes:
This flows from sovereignty.
CANONS OF INTERPRETATION Exception: If there is a treaty stipulation
Generally regarded by publicists as applicable to imposing that duty.
treaties consist largely of the application of
principles of logic, equity and common sense to ★ State may subject admission of aliens to
the text for the purpose of discovering its certain legal conditions. e.g. quota system
meaning.
★ State may expel aliens within its territory.
TRAVAUX PREPARATOIRES Expulsion may be predicated on the ground
Preparatory works as a method of historical that the presence of the alien in the territory
interpretation of a treaty. These works are will menace the security of the State.
examined for the purpose of ascertaining the
intention of the parties. ★ This is subject to the “Non-Refoulement
Principle.”
★ The interpretation of one State, even
according to its municipal laws and given by Reconduction
its authorized organs within the State, is NOT It means the forcible conveying of aliens. As a
BINDING to the other party unless the latter State cannot refuse to receive such of its subjects
accepts it. as are expelled from abroad, the home State of
such aliens as are reconducted has the obligation
★ No interpretation is needed when the text is to receive them.
clear and unambiguous.
Position of Aliens After Reception
★ A treaty may be authoritatively interpreted: When aliens are received, they are subject to the
a) by interpretation given by the treaty municipal laws of the receiving State.
itself a) Transient -
b) by mutual agreement or b) Domiciled/Residents – domicile creates a
c) through international court sort of qualified or temporary allegiance.
arbitration Subjected to restrictions not usually
imposed against transient aliens.
TERMINATION OF TREATIES
Most Common Causes: ★ Limitations - aliens’ rights are not at par
a) Termination of the treaty or withdrawal of a with citizens’ as regards political or civil
party in accordance with the terms of the rights.
treaty;
b) In bipartite treaties, the extinction of one of ★ Bases of Grant of Rights
the parties terminates the treaty. Moreover, a) Principle of Reciprocity
when the rights and obligations under the b) MFN treatment
treaty would not devolve upon the State that c) Nationality treatment – equality between
may succeed to the extinct State. nationals and aliens in certain matters.
c) Mutual agreement of ALL the parties; d) 1948 UDHR and other treaties
d) Denunciation of the treaty by one of the
parties. RIGHT OF DENUNCIATION – the right DOCTRINE OF STATE RESPONSIBILITY
to give notice of termination or withdrawal A State is under obligation to make reparation to
which must be exercised if provided for in the another State for the failure to fulfill its primary
treaty itself or impliedly; obligation to afford, in accordance with
e) Supervening impossibility of performance; international law, the proper protection due to an
f) Conclusion of a subsequent inconsistent alien who is a national of the latter State.
treaty between the same parties;
g) Violation of the treaty; Rule: A State is responsible for the maintenance
h) Doctrine of RSS; of law and order within its territory.
i) War between the parties – war does not Exception: If the injury is not directly
abrogate ipso facto all treaties between the attributable to the receiving State and when it
belligerents. was proximately caused by the alien himself.
j) Severance of diplomatic or consular
relations; ★ When acts of violence occur therein, it may
k) Emergence of a new peremptory norm be said that the State is indirectly
contrary to the existing treaty. responsible; on the other hand, the State
l) Voidance of the treaty because of defects in cannot be regarded as an absolute insurer of
its conclusion or incompatibility with the morality and behavior of all persons
international law or the UN Charter. within its jurisdiction.
Q: Is the State liable for death and injury to Expropriation of Foreign-Owned Property
aliens? Western countries maintain that MIS requires: Notes:
A: NO, unless it participates directly or is remiss a) expropriation must be for a public
or negligent in taking measures to prevent injury, purpose;
investigate the case, punish the guilty, or to b) it must be accompanied by payment of
enable the victim or his heirs to pursue civil compensation for the full value of the
remedies. property that is prompt, adequate and
effective.
★ Communist countries, however, maintain that

Function States may expropriate the means of
To provide, in the general world interest, production, distribution and exchange
adequate protection for the stranger, to the end without paying compensation.
that travel, trade and intercourse may be
facilitated. ★ Developing countries, hoping to attract
foreign investments, are inclined to accept
Essential Elements: Western view.
1) an act or omission in violation of
international law CONDITIONS FOR ENFORCEMENT OF CLAIMS
2) which is imputable to the State 1) nationality claim
3) which results in injury to the claimant 2) exhaustion of local remedies
either directly or indirectly through 3) no waiver
damage to a national. 4) no reasonable delay in filing the claim
5) no improper behavior by injured alien
Acts or Omissions Imputable to the State
It is necessary to distinguish acts of private Nationality of claim
individuals and those of government officials and In asserting the claims of its nationals, by
organs. resorting to diplomatic actions on his behalf, the
State is in reality asserting its own right. It is the
Denial of Justice bond of nationality between the state and the
This term has been restrictively construed as an individual which confers upon the State the right
injury committed by a court of justice. There is of diplomatic protection.
denial of justice when there is:
a) unwarranted delay, Doctrine of Genuine Link
obstruction or denial of access of The bond of nationality must be real and effective
courts; in order that a State may claim a person as its
b) gross deficiency in the national for the purpose of affording him
administration of judicial or diplomatic protection. NOTTEBOHN CASE 1955
remedial process; ICJ *
c) failure to provide those
guarantees usually considered Doctrine of Effective Nationality
indispensable to the proper When a person who has more than one nationality
administration of justice; or is within a third State, he shall be treated as if
d) a manifestly unjust had only one – either the nationality of the
judgment. country which he is habitually and principally a
resident or the nationality of the country with
Why is there no denial of justice unless which in the circumstances he appears to be most
misconduct is extremely gross? – The reason is closely connected – without prejudice to the
that the independence of the courts is an application of its (3rd State’s) law in matters of
accepted canon of democratic government, and personal status and of any convention in force.
the law does not lightly hold a State responsible ART. 5, HAGUE CONVENTION OF 1903. *
for error committed by the courts.
☀ These two doctrines are used
Minimum International Standard (MIS) interchangeably by authors and
NO PRECISE DEFINITION commentators without any effort to
The treatment of an alien, in order to constitute make a distinction between the two. It
an international delinquency, should amount to an may be treated alike.
outrage, to bad faith, to willful neglect of duty or
to an insufficiency of governmental action so far Q: What is the “doctrine of effective
short of international standards that every nationality” (genuine link doctrine)?
reasonable and impartial man would readily Held: This principle is expressed in Article 5 of
recognize its insufficiency. NEER’S CASE, US- the Hague Convention of 1930 on the Conflict of
MEXICAN CLAIMS COMMISSION Nationality Laws as follows:
Art. 5. Within a third State a person having more b. jus soli (by place)
than one nationality shall be treated as if he had Notes:
only one. Without prejudice to the application of 2) Naturalization
its law in matters of personal status and of any a. naturalization proceedings
convention in force, a third State shall, of the b. marriage
nationalities which any such person possesses, c. legitimation
recognize exclusively in its territory either the d. option
nationality of the country in which he is habitually e. acquisition of domicile
and principally resident or the nationality of the f. appointment as
country with which in the circumstances he government official
appears to be in fact most closely connected.
(Frivaldo v. COMELEC, 174 SCRA 245, June 23, 3) Resumption or Repatriation – recovery of
1989) the original nationality upon fulfillment
of certain conditions.
Non-Refoulement Principle
Non-refoulement is a principle in international 5 Modes of Losing Nationality
law, specifically refugee law, that concerns the 1) Release
protection of refugees from being returned to 2) Deprivation
places where their lives or freedoms could be 3) Expiration
threatened. Unlike political asylum, which applies 4) Renunciation
to those who can prove a well-grounded fear of 5) Substitution
persecution based on membership in a social
group or class of persons, non-refoulement refers §1, AIV, 1987 Phil. Constitution
to the generic repatriation of people, generally The following are citizens of the Philippines:
refugees into war zones and other disaster areas. 1) Those who are citizens of the Philippines at
the time of the adoption of the Constitution;
An example of the non-refoulement principle can 2) Those whose fathers or mothers are citizens
be found in the 2007 issue of Israel jailing 320 of the Philippines;
refugees from the Darfur conflict in Western 3) Those who elect Philippine citizenship
Sudan. Due to laws erected for the protection of pursuant to the provisions of the Constitution
Israel from the anti-Semitic atmosphere in the of 1935;
region, refugees fleeing to Israel in avoidance of 4) Those who are naturalized in accordance with
the Darfur conflict were jailed in the interest of law.
national security. After some 200 were
determined to not be a threat, usual repatriation Exhaustion of Local Remedies
guidelines could not be followed in part due to Rule: The alien himself must have first exhausted
non-refoulement principles. Many of them were the remedies provided by the municipal law, if
released to Israeli collective farms called there be any.
kibbutzim and moshavim to work until the
conflict subsides enough for their return. (Source: Exceptions:
Wikipedia) a) When the injury is inflicted directly
by the State such as when its diplomats are
attacked.
FRIVALDO v. COMELEC b) When there are no remedies to
174 SCRA 245, 23 June 1989 exhaust;
c) The application for remedies would
result in no redress.
The Nottobohm Case is not relevant in the
petition before us because it dealt with a conflict No waiver
between the nationality laws of two states as The claim belongs to the State and not to the
decided by a third State. No third State is individual. Thus, waiver of individual does not
involved in the case at bar, in fact, even the US is preclude the State to pursue the claim.
not claiming Frivaldo as its national. The sole
question presented to us is WON Frivaldo is a CALVO CLAUSE
citizen of the Philipines under our own laws, Named after an Argentinean lawyer and
regardless of other nationality laws. We can statesman who invented it stipulating that
decide this question alone as sovereign of our own the alien agrees in advance not to seek
territory, conformable the Sec. 1 of the Hague diplomatic intervention.
Convention (1903) which provides: “it is for each
State to determine under its laws who are its ☀ disregarded by international arbitral
nationals.” tribunals because the alien cannot waive
a claim that does not belong to him but
3 Modes of Acquiring Nationality to his government.
1) Birth
a. jus sanguinis (by blood)
two truckloads of government troops arrived

Q: Is the Calvo clause lawful? prompting the rebels to withdraw. Government Notes:
A: Insofar as it requires alien to exhaust the troopers immediately launched pursuit
remedies available in the local state, it may operations and killed several rebels. No cash or
be enforced as a lawful stipulation. However, other valuable property taken from the
it may not be interpreted to deprive the American businessman was recovered.
alien’s state of the right to protect or
vindicate his interests in case they are In an action for indemnity filed by the US
injured by local state. Government in behalf of the businessman for
injuries and losses in cash and property, the
No improper behavior by injured alien. Cambodian Government contended that under
He who comes to court for redress must come International Law it was not responsible for acts
with clean hands. of the rebels.
Methods of Pressing Claims 1. Is the contention of the Cambodian

1) Diplomatic Intervention Government correct? Explain.
2) International judicial settlement – The ICJ is 2. Suppose the rebellion is successful and a new
authorized to assume jurisdiction to determine government gained control of the entire State,
“the nature or extent of the reparation to be replacing the lawful Government that was
made for the breach of an international toppled, may the new government be held
obligation,” but only after the State-parties agree responsible for the injuries or losses suffered by
thereto. the American businessman? Explain. (1995 Bar)
A: 1. YES. Unless it clearly appears that the
What is the International standard of justice? Cambodian government has failed to use promptly
It is defined as the standard of the reasonable and with appropriate force its constituted
state and calls for compliance with the ordinary authority, it can not be held responsible for the
norms of official conduct observed in civilized acts of the rebels for the rebels are not their
jurisdictions. It may refer to the intrinsic validity agents and their acts were done without its
of the laws passed by the state or to the manner volition. In this case, the government troopers
in which such laws are administered and immediately pursued the rebels and killed several
enforced. of them.
2. YES. Victorious rebel movements are
For example, a law imposing death penalty for a responsible for the illegal acts of their forces n
petty theft would fall short of the international the course of the rebellion. The acts of the rebels
standard. So to would one calling for the arbitrary are imputable to them when they assume as duly
punishment of accused persons without constituted authorities of the State.
compliance with the usual requisites of due
process.
Pacific Settlement of International Disputes
Nature and Measure of Damages
Reparation may consist of restitution: Nature
a) in kind International Dispute Defined
b) specific performance Optional Clause
c) apology Types
d) punishment of the guilty 1. Negotiation
e) pecuniary compensation 2. Good Offices
f) or the combination of the above 3. Mediation
4. Enquiry
Measure – estimate of the loss caused to the 5. Conciliation
injured individual, or, if he has lost his life, on the 6. Arbitration
loss caused by the death to his dependents. 7. Judicial Settlement
Q: What is the principle of attribution? (1992 ¯°º°¯
Bar)
A: The acts of private citizens or groups cannot Nature
themselves constitute a violation by the It is well established in international law that no
Philippines if said acts cannot be legally State can, without its consent, be compelled to
attributed to the Philippines as a State. submit its disputes with other States either to
mediation or arbitration, or to any other kind of
Q: In a raid conducted by rebels in a Cambodian pacific settlement (PS). (PCIJ on STATUS OF
town, an American businessman who has been a EASTERN CARELIA.)
long-time resident of the place was caught by
the rebels and robbed of his cash and other Dispute – is a disagreement on a point of law or
valuable personal belongings. Within minutes fact, a conflict of legal views or interests between
two persons. The mere denial of the existence of parties seek a solution of their differences by
a dispute does not prove its non-existence direct exchange of views between themselves. Notes:
because disputes are matters for objective This is the very essence of diplomacy.
determination.
II. Good Offices
International Dispute – if the dispute arises An attempt of a third party to bring together the
between two or more States. disputing States to effect a settlement of their
disputes. This is NOT to be regarded as an
▪ The charging of one State and the denial of unfriendly act.
another of the dispute as charged, creates
an international dispute as “there has thus Tender of good office
arisen a situation in which the two sides hold A tender of good office may be made by:
clearly opposite views concerning the a) Third State
questions of the performance or non- b) international organs such as the UN;
performance of their treaty obligations. or
Confronted with such a situation, the Court c) Individuals or eminent citizens of a
must conclude that international disputes third State.
have arisen.” ICJ Reports 1950
III. Mediation
Legal Dispute – the following are deemed This is the action of a third party in bringing the
constitutive of a legal dispute: parties to a dispute together and helping them in
i. interpretation of a treaty; a more or less informal way to find a basis for the
ii. any question of international law; settlement of their dispute.
iii. the existence of any fact which, if
established, would constitute a breach of Mediation v. Good Offices
an international obligation; In good offices, once the parties have been
iv. the nature or extent of the reparation to brought together, the third party tendering
be made for the breach of an good offices has no further functions to
international obligation. perform. In mediation, on the other hand,
the third party mediates and is the more
Dispute v. Situation active one, for he proposes solution, offers
A dispute can properly be considered as a his advice and in general attempts to
disagreement on a matter at issue between two conciliate differences.
or more States which has reached a stage at
which the parties have formulated claims and IV. Enquiry
counterclaims sufficiently definite to be passed Enquiry is the establishment of the facts involved
upon by a court or other body set up for the in a dispute and the clarification of the issues in
purpose of pacific settlement. A situation, by order that their elucidation might contribute to
contrast, is a state of affairs which has not yet its settlement.
assumed the nature of conflict between the
parties but which may, though not necessarily, ▪ Basis – it rests on the theory that certain
come to have that character. disputes could be settled if the facts of the
case were established.
Optional Clause
[OPTIONAL JURISDICTION CLAUSE] ▪ Object of Enquiry - to ascertain the facts
The following are deemed legal disputes: underlying a dispute and thereby prepare the
1. Interpretation of a treaty; way for a negotiated adjustment or
2. Any question of international law; settlement of the dispute.
3. The existence of any fact which, if
established, would constitute a breach of V. Conciliation
an international obligation; and This is the process of settling disputes by referring
4. The nature or extent of the reparation to them to commissions or other international
be made for the breach of an bodies, usually consisting of persons designated by
international obligation. agreement between the parties to the conflict,
whose task is to elucidate the facts and make a
TYPES OF Pacific Settlement report containing proposals, for a settlement,
I. Negotiation which, however, have no binding character.
The legal and orderly administrative process by OPPENHEIM
which governments, in the exercise of their
unquestionable powers, conduct their relations ▪ Conciliation v. Enquiry – in enquiry, the
with one another and discuss, adjust and settle main object is to establish the facts. In
their differences. conciliation, the main object is not only to
The chief and most common method of settling elucidate the facts but to bring the parties to
international disputes. By this method, the an agreement.
consequences of some unfriendly or

VI. Arbitration illegal act; Notes:
This is a procedure for the settlement of disputes c) to serve notice on
between States by a binding award on the basis of the other State that the issue between
law and as the result of an undertaking voluntarily them has reached a point where normal
accepted. diplomatic intercourse is no longer
possible and that sterner measures might
☀ Princ possibly follow.
iple of Free Determination – this
principle applies to the competence of Suspension of Relations– has been used to
the arbitral tribunal, the law to be denote a less drastic step than complete
applied and the procedure to be severance of diplomatic ties. It involves
followed. withdrawal of diplomatic representation, but
not the severance of consular relations.
☀ Choice of Arbitrators – the arbitrators
should be either freely selected by the No breach in int’l. law – there exists no
parties or, at least, the parties should obligation to maintain diplomatic intercourse
have been given the opportunity of a free with other States, thus, severance of an
choice of arbitrators. existing relation does not tantamount to
breach of international law.
☀ States are under no legal obligation to
arbitrate their disputes. II. Retorsion
Consists of an unfriendly, but not international
☀ compromis d’ arbitrage – the agreement illegal act of one State against another in
to arbitrate. It is the charter of the retaliation for the latter’s unfriendly or
arbitral tribunal. Contains the following: inequitable conduct. It does not involve the use
a) the questions to be settled; of force.
b) the method of selecting arbitrators
and their number; States resorting to retorsion retaliate by acts of
c) venue; the same or similar kind as those complained of.
d) expenses; It is resorted to by States usually in cases of unfair
e) the arbitral award; treatment of their citizens abroad.
f) rules of procedure; and
g) the law to be applied. III. Reprisals
Any kind of forcible or coercive measures whereby
VII. Judicial Settlement one State seeks to exercise a deterrent effect or
This means settlement by a permanent to obtain redress or satisfaction, directly or
international court of justice, in accordance with indirectly, for the consequences of the illegal acts
judicial methods. Arbitration proceedings may be of another State, which has refused to make
similar to the functions and process of judicial amends for such illegal conduct.
settlement but the arbitral tribunal is NOT a
permanent body as compared to the body referred Criteria for Legitimacy
to in this type of PS. a) that the State against which
reprisals are taken must have been guilty
of a breach of international law;
Forcible Measures Short of War b) that prior to recourse to
reprisals an adequate attempt must have
Severance of Diplomatic Relations been made, without success, to obtain
Retorsion redress from the delinquents State for
Reprisals the consequences of its illegal conduct;
Embargo and
Boycott c) That acts of reprisals must
Non-intercourse not be excessive.
Pacific Blockade
Collective Measures under the Charter 2 Kinds of Reprisals:
a) Reprisal as a form of self-help – is
¯°º°¯ resorted to for the purpose of settling a
dispute or redressing a grievance without
I. Severance of Diplomatic Relations going to war, consequently no state of
Severance may take place: war exists between the State resorting to
a) to mark severe reprisals and the State against whom
disapproval of a State’s conduct; such acts are directed.
b) to influence the
offending State to remedy the
b) Reprisal taken by belligerents in the resources which otherwise might find their
course of war – the purpose of the latter way into foreign territory. Notes:
kind of reprisals is to compel a
belligerent to observe or desist from Collective Embargo
violating the laws of warfare; it Embargo by a group of States directed against
presupposes, therefore, the existence of an offending State. This may be:
a state of war between the parties a) collective embargo on import or export
concerned. of narcotic drugs
Reprisals Retorsion b) collective embargo by way of
Consists of acts which Consists of retaliatory enforcement action under the UN Charter
would ordinarily be conduct which is
illegal. legitimate or is not in V. Boycott
violation of A comparatively modern form of reprisal which
international law. consists of a concerted suspension of trade and
Generally resorted to Acts which give rise to business relations with the nationals of the
by a State in retorsion though offending State.
consequence of an obnoxious do not
act or omission of amount to an VI. Non-intercourse
another State which international Consists of suspension of ALL commercial
under international delinquency. intercourse with a State. A complete or partial
law constitutes an interruption of economic relations with the
international offending State as a form of enforcement
delinquency. measure.
Forms of Reprisals VII. Pacific Blockade

a) military occupation A naval operation carried out in time of peace
b) display of force whereby a State prevents access to or exit from
c) naval bombardment particular ports or portions of the coast of
d) seizure of ships at sea another State for the purpose of compelling the
e) seizure of properties of nationals of the latter to yield to certain demands made upon it
delinquent State by the blockading State.
f) freezing of assets of its citizens
g) embargo ☀ Third States do not acquire the status of
h) boycott neutrals because there is no belligerency
i) pacific blockade between the blockader and the State.
Letters Of Marque or Special Reprisals Quarantine [See movie “Thirteen Days”]

Act of a State granting their subjects who The right to stop and search vessels of third
could not obtain redress for injury suffered States suspected of carrying specified cargo
abroad, authorizing them to perform acts of to the “quarantined” State has been asserted
self-help against the offending State or its by the blockading State. THE CUBAN
nationals for the purpose of obtaining QUARANTINE.
satisfaction for the wrong sustained.
☀ Blockade may no longer be resorted to by
States Members as a measure of self-
IV. Embargo (Sequestration / Hostile Embargo) help. It may only be used collectively by
This is originally a form of reprisal consisting of or on behalf of the UN as an enforcement
forcible detention of the vessels of the offending action under Article 41 of the UN Charter.
State or of its nationals which happened to be
lying in the ports of the injured or aggrieved
State. Later, the practice was extended to such
vessels also as were seized in the high seas, or VIII. Collective Measures under the Charter
even within the territorial waters of the offending A system of peace enforcement under the UN
State. Charter. It envisages the employment, if
necessary, of compulsive measures to maintain or
☀ Vessels sequestered are not considered restore peace. These measures may or may not
condemned or confiscated, but must be involve the use of armed forces.
returned when the delinquent State
makes the necessary reparation. The enforcement provisions of the Charter are
brought into play only in the event that the SC
Civic or Pacific Embargo determines, under Article 39, that there exists a
A form of embargo employed by a State to its “threat to peace, a breach of the peace, or an act
own vessels within its national domain or of of aggression.”
Article 41, UN Charter and must obey the rules of war which represent a
The SC may decide what measures not involving general international attempt to humanize armed Notes:
the use of armed forces are to be employed to conflict.
give effect to its decisions, and it may call upon
the Members of the UN to apply such measures. Temperamenta of Warfare
These may include complete or partial Grotius advocated moderation in the conduct of
interruption of: hostilities for reasons of humanity, religion and
a) economic relations and of rail, sea, air, farsighted policy.
postal, telegraphic, radio, and other
means of communication; and Rules of War Obsolete
b) severance to the diplomatic relations. The radical change in the character of war, both
in scope and method, has rendered many of the
traditional rules of warfare obsolete, or at any
Article 42, UN Charter rate frightfully inadequate.
Should the SC consider that measures provided for
in Article 41 would be inadequate or have proved Sanctions of the laws of war
to be inadequate, it may take such action by air, Observance of the rules of warfare by belligerents
sea, or land forces as may be necessary to is secured through several means recognized by
maintain or restore international peace and international law:
security. Such action may include: 1) reprisals
a) demonstrations 2) punishment of war crimes committed by
b) blockade and enemy soldiers and other enemy subjects
c) other operations by air, sea, or land 3) protest lodged with the neutral powers
forces of Members of the UN. 4) compensation
☀ The taking of hostages, formerly

The Laws of War considered a legitimate means of
enforcing observance of the laws of
Definition of War war, is no longer permitted at
Legality of War present time.
Rules of Warfare
Sanctions of the Laws of War International Humanitarian Law (IHL)
Commencement and Termination of War These are the laws of armed conflict. It used to
Effects of Outbreak of War be called the laws of war.
Conduct of Warfare It regulates the conduct of actual conflict (jus
in bello) as distinguished from laws providing for
¯°º°¯ the instances of the lawful resort to force (jus ad
bellum).
War INGRID DETTER DE LUPIS It is a functional and utilitarian body of laws,
A sustained struggle by armed forces of a certain not just humanitarian.
intensity between groups of certain size, It is part of International Criminal Law and
consisting of individuals who are armed, who wear deals with breaches of international rules on the
distinctive insignia and who are subjected to laws of armed conflict entailing the personal
military discipline under responsible command. liability of the individuals concerned, as opposed
to the responsibility of the State which is covered
Legality of War under UN by Public International Law proper. (IHL: A Field
The use of armed force is allowed under the UN Guide to the Basics, The 2007 Metrobank Lecture
Charter only in case of individual or collective on International Law, 22 Nov. 2007 by Associate
self-defense, or in pursuance of a decision or Justice Adolfo S. Azcuna)
recommendation of the SC to take forcible action
against an aggressor.
COMMENCEMENT
As Self-Defense – the use of force in self-defense ☀ It was customary to notify an intended war by
is permitted only while the SC has not taken the letters of defiance, herald, or preliminary
necessary measures to maintain or restore warning by declaration or ultimatum.
international peace and security.
☀ 1907 2nd Hague Conference – The contracting
★ The laws of war are not applicable to war States recognized that hostilities between
alone in its technical sense, but to all them ought not to commence without
armed conflicts. previous and unequivocal warning which
might take the form of either:
Nature of Enforcement Action under UN a) a declaration of war giving reasons;
UN Forces must behave in a manner consistent b) an ultimatum with a conditional
with the purposes and ideals of the Organization declaration of war.
negotiated peace treaty. Or a peace

animo belligerendi treaty thru a dictated treaty. Notes:
From the point of view of international law,
war commences upon the commission of an c) by unilateral declaration – if the war
act of force by one party done in animo results in the complete defeat or
belligerendi. War unconditional surrender of a belligerent
the formal end of the war depends on
Anglo-American Rule the decision of the victor.
Bound by a statement by the executive as to
when a state of war is commenced. uti possidetis
Each belligerent is regarded as legally
Q: What are some kinds of non-hostile entitled to such property as are actually in its
intercourse between the belligerents? possession at the time hostilities ceased.
A: Among the kinds of non-hostile intercourse are
flags of truce, cartels, passports, safe-conduct, status quo ante bellum
safeguards and license to trade. Each of the belligerents is entitled to the
territory and property which it HAD
Q: By what agreements may hostilities be possession of at the commencement of the
suspended between the belligerents? war.
A: Hostilities may be superceded by a suspension Dictated Treaty
of arms, an armistice, a cease-fire, a truce, or a This happens where the decisive victory of
capitulation. one of the belligerents leads it to impose its
will on the other. Imposed by the victor.
Suspension of Arms
It is the temporary cessation of hostilities by End of War NAVARRO VS. BARREDO
agreement of the local commanders for such Termination of war when used in private
purposes as the gathering of the wounded and the contracts refers to the formal proclamation
burial of the dead. of peace by the US and not the cessation of
hostilities between RP and Japan during the
ARMISTICE WWII.
It is the suspension of all hostilities within a
certain area (local) or in the entire region of the Q: What is the meaning or concept of uti
war (general) agreed upon by the belligerent possidetis? (1977 Bar)
governments, usually for the purpose of arranging A: The problem concerning ownership of property
terms of peace. which have changed hands during the course of
the war are generally settled by the application of
CEASEFIRE the rule of uti possidetis, by which each
It is the unconditioned stoppage of hostilities by belligerent is regarded as legally entitled to such
order of an international body like the Security property as are actually in its possession at the
Council for the purpose of employing peaceful time hostilities ceased.
means of settling the conflict.
Postliminium (See movie: “The Gladiator”)
TRUCE A term borrowed from Roman Law concept which
Sometimes use interchangeably with armistice, meant that persons or properties captured or
but is now understood to refer to a ceasefire with seized and taken beyond (post) the boundary
conditions attached. (limen) could be enslaved or appropriated, but
upon return they recovered their former status.
CAPITULATION
It is the surrender of military troops, forts or Modern Practice
districts in accordance with the rules of military To denote the doctrine that territory,
honor. individuals and property, after having come
under the authority of the enemy, revert to
TERMINATION the authority of the original sovereign ipso
a) by simple cessation of hostilities, without facto upon retaking possession.
the conclusion of a formal treaty of
peace – since no formal treaty of peace is Legitimate Acts of Military Occupant
concluded, the problems concerning Postliminium has no effects upon the acts of a
ownership of property which have military occupant during the occupation
changed hands during the course of the which under international law it is competent
war are generally settled by the to perform e.g. collection of ordinary taxes.
application of the rule of uti possidetis. However, appropriation of property is not
allowed to be performed by the military
b) by a treaty of peace – this is the usual occupant, hence, the ownership of the
method of terminating war. It may be a
property reverts back after the military 1) is incorporated in an enemy

occupancy without payment of compensation. teriroty; or Notes:
2) is controlled by individuals
Q: When is the principle of postliminium bearing enemy character.
applied? (1979 Bar)
A: Where the territory of one belligerent state is Rules for interment of enemy aliens
occupied by the enemy during war, the legitimate (1) to provide for the
government is ousted from authority. When the internees’ safety and welfare;
belligerent occupation ceases to be effective, the (2) to furnish adequate
authority of the legitimate government is food and clothing
automatically restored, together with all its laws, (3) to provide family
by virtue of the jus postliminium. accommodations with due privacy and
facilities;
EFFECTS OF WAR OUTBREAK (4) to provide facilities
1. Rupture of diplomatic for religious, intellectual and physical
relations and termination of consular activities;
activities (5) to permit the use of
2. On enemy persons their personal properties and financial
3. On enemy properties resources;
4. On trading and intercourse (6) to permit a degree of
5. On contracts communication with the outside world;
6. On treaties (7) the refrain from
excessive or inhuman penal and
Rupture of diplomatic relations / termination of disciplinary measures;
consular activities (8) to make transfers
The respective diplomatic envoys are allowed to only in a humane manner;
leave for their home countries. War also brings (9) to record and duly
about the cessation of consular activity. The certify deaths, and to inquire into deaths
official residence of the envoy, the archives of the other than from natural causes;
mission, and consular archives are usually left (10) to release internees
under the protection of another foreign envoy or when the reasons for internment cease or
consul of another State. when hostilities terminate. 1949
GENEVA CONVENTION
On enemy persons
International law leaves each belligerent free, Locus standi during occupation
within wide limits, to designate the persons whom The practice of states are varied. Some
it will treat as having enemy character. consider the enemy persons ex lege during
the whole duration of the hostilities. Some
Determination of enemy character allowed them to sue and be sued subject to
a) territorial test – enemy character so many exceptions. In the Philippines, when
depends on the residence or domicile of an enemy subject is unable to sue during war,
the person concerned a right of action which has accrued to him
before the war is deemed suspended for the
b) nationality test – this is the preferred duration of the war. Further, war suspends
continental practice. The subjects of the the operation of the statute of limitations.
belligerent are deemed enemy persons
regardless of where they are. On enemy property
In general, goods belonging to enemy persons are
c) activities test – whether national or not, considered enemy property.
resident or not. Thus, subjects of a  public – confiscated
neutral State may be treated as enemies  private – sequestered only and
because of certain activities where they subject to return or reimbursement
participate.
On trading and intercourse
d) territorial or commercial domicile test – The practice of belligerents in modern wars of
in matters pertaining to economic forbidding by legislation all intercourse with alien
warfare. enemies, except as such as are permitted under
license. The main object of such laws was to
e) controlling interest test – this is the test prohibit transactions which would benefit the
as to corporations in addition to the enemy or enemy persons.
place of incorporation test. A
corporation is regarded as enemy person On contracts
if it: International law leaves each belligerent free to
regulate this matter by his own domestic law. In
general, it may be stated that States treat as void c) they carry arms openly; and
contracts which may give aid to the enemy or add d) they conduct their operations in Notes:
to his resources, or necessitate intercourse or accordance with the laws and
communication with enemy persons. customs of war.
On treaties Guerilla warfare – considered as IF.

Modern view is that war does NOT ipso facto Hostilities conducted by armed bodies of men
terminate all treaties between belligerents. who do not form part of an organized army.
☀ Treaties may contain provisions to the
effect that it will remain in force 3) Non-privileged Combatants (NPC) –
notwithstanding the existence of war. individuals who take up arms or commit
hostile acts against the enemy without
☀ Treaties dealing with political matters, belonging to the armed forces or forming part
such as treaties of alliance, and with of the irregular forces. If captured, they are
commercial relations are deemed not entitled to the status of prisoners of war.
abrogated by the outbreak of war
between the parties thereto. Mercenaries – considered as NPC
Those who, having been recruited in another
CONDUCT OF WARFARE country, from military forces for “personal
(See movie: “The Patriot”) gain,” are not covered by protection.
3 Basic Principles of IHL:
1. Military necessity Spies – A soldier employing false pretenses or
2. Humanity acts through clandestine means to gather
3. Chivalry information from the enemy. A soldier not
wearing uniform during hostilities runs the
Doctrine of Military Necessity risk of being treated as a spy and not entitled
A belligerent is justified in resorting to all to prisoner of war status. When caught, they
measures which are indispensable to bring are not to be regarded as prisoners of war.
about the complete submission of the enemy, Military Scouts are not spies.
as soon as possible, by means of regulated
violence not forbidden by conventional or 4) Levee en masse
customary rules of war and with the least Takes place when the population
possible loss of lives, time and money. spontaneously rises in mass to resist the
invader. They enjoy privileges due to
Principle of Humanity armed forces.
[THE ETHICS OF WARFARE]
Forbid the use of weapons which cause NOTE: Only RF, IF and Levee may be treated as
indiscriminate destruction or injury or inflict prisoners of war under Protocol I of 1977. See
unnecessary pain or suffering. this reviewer’s section on POW.
Principle of Chivalry Restrictions on weapons

This principle requires the belligerents to give Prohibited weapons:
proper warning before launching a 1) explosive bullets
bombardment or prohibit the use of perfidy in 2) use of dum-dum bullets
the conduct of hostilities. This principle does 3) employment of projectiles
not prohibit espionage. whose only object is diffusion of asphyxiating,
poisonous, or other gases, and all analogous
liquids, materials or devices
Q: Who constitute combatants? 4) the use of bacteriological
A: They are the following: methods of warfare.
1) Regular Forces (RF)– the army, navy, and 5) The laying of “contact” mines
air force. Non-combatant members of the 6) Explosives from balloons
armed forces include: chaplains, army
services and medical personnel. 3 Protocols on Restrictions
Protocol I on Fragmentation Weapons
2) Irregular Forces (IF) – also known as Protocol II on Treacherous Weapons
franc-tireurs consist of militia and voluntary Protocol III on Incendiary Weapons
corps. They are treated as lawful combatants
provided that: Other Questionable weapons
1) Fuel explosive weapons that kill by air
a) they are commanded by a person shock waves
responsible for his subordinates; 2) Flame blast munitions that combine fuel
b) they wear a fixed distinctive sign air explosive effect with radiation in
recognizable for his subordinates; chemical fireball munitions;
3) Laser weapons which cause burns and b) Feigning surrender or pretending to

blindness have been wounded or to have a Notes:
4) Infrasound devices that cause damage to civilian status
the central nervous system. c) Using the uniform of the enemy
d) Claiming neutral status
LIMITATION ON TARGETS OF ATTACK e) Falsely flying the Red Cross flag
Only military targets are subject to attack by the f) Making hospitals, churches and the
armed forces of a belligerent as a basic rule of like as shield from attack.
warfare. Likewise, certain places and objectives g) Area bombing
are not subject to attack, such as:
1) Neutralized areas or zones – these are zones PRISONERS OF WAR (POW)

in the theater of operations established by The following persons captured must be treated
special agreement between the belligerents as POW:
for treatment of the wounded and civilians. 1) members of the armed forces, as well as
EX: Aland Islands, the Spitzbergen, the members of militias or volunteer corps
Magellan Straits, the Suez Canal and Panama forming part of such armed forces;
Canal. 2) members of other militias or volunteer
groups, including those of organized
2) Open towns – also known as “non defended resistance movements, subject to compliance
locality.” A place free of combatants. with certain conditions;
3) members of regular armed forces professing
3) Cultural property and places of worship allegiance to a government or an authority
not recognized by the capturing State;
4) Civil defense – includes personnel, buildings 4) various categories of persons accompanying
and assets, clearly indicated by a blue an army unit, such as civilian members of
triangle on an orange background distinctive military aircraft crew, war correspondents,
sign. etc., provided they are authorized to be with
the army or unit;
5) Dangerous installations – dams, dikes, or 5) members of the crew of merchant vessels and
nuclear electric plants. civilian aircraft who do not benefit by more
favorable treatment under any other
6) Civilians and persons hors de combat – provisions of internal law;
persons hors de combat are those who are 6) members of the population of non-occupied
either wounded or, for other reasons, have territory who take up arms as a levee en
permanently joined the civilian population. masse against an invading army.
7) Parachutists – those who bail out from Q: What are the core crimes in IHL?
aircrafts in distress. Must only be treated as A: The core crimes in IHL are genocide, crimes
POW. against humanity, war crimes and aggression.
These core crimes are specified in the Statues
8) Hospitals, hospital ships and medical units – of the ICC (or the Rome Statute for an ICC) which
a clear marking or a Red Cross to show their describes them as the most serious crimes of
status. concern to the international community as a
whole. These crimes are within the jurisdiction of
9) Food supplies and crops the ICC.
FORBIDDEN METHODS NOTE: Although the Philippines has signed but not
No Quarter – such orders implying that no yet ratified the Rome Statute establishing the ICC,
survivors are to be left after an attack. the ICC Statute’s and definitions of the core
crimes are authoritative statements for us since
Starvation they are practically lifted from customary
international law sources and from the Geneva
Reprisals – are not reprisals as a form of self- Conventions of 1949 and other treaties to which
help, instead, belligerent reprisals are of we are parties. (IHL: A Field Guide to the Basics,
a completely different type. These are The 2007 Metrobank Lecture on International
acts of vengeance by a belligerent Law, 22 Nov. 2007 by Associate Justice Adolfo S.
directed against groups of civilians or Azcuna)
POWs in retaliation of or response to an
attack by other civilians against the 1949 Geneva Convention III
belligerent. The rules of POW applies to prisoners of war who
are captured in a properly declared war or any
Perfidy on treachery – this includes: other kind of “armed conflict,” even if any of the
a) Improper use of white flag combatant powers do not recognize the existence
of a state of war and even though these conflicts the war continues, annex the territory or set it up
are “not of an international character.” as an independent State. Notes:
Q: Is guerilla warfare recognized under Q: Can the belligerent occupant impose and
International Law and may a captured guerilla collect taxes or contributions?
demand treatment afforded a prisoner of war A: YES. Under the Hague Regulations, the
under the 1949 Geneva Convention? Explain. occupant is empowered to collect taxes, dues and
A: Yes. Under Article 4 of the 1949 Geneva tolls, as far as possible in accordance with “the
Convention on Prisoners of War, guerilla warfare, rules of assessment and incidence in force,” and
which consists in hostilities conducted in territory he is bound to defray the “expenses of
occupied by the enemy by armed bodies of men administration” out of the proceeds.
who do not form part of an organized army, is
recognized. Guerillas are entitled to be treated Contributions – are money impositions on the
as prisoners of war provided they fulfill the inhabitants over and above such taxes.
following conditions:
1) They are commanded by a person Conditions on levying taxes:
responsible for his subordinates; 1) they must be for the needs of the army or
2) They have a fixed distinctive emblem local administration;
recognizable at a distance; 2) they can be imposed by written order of the
3) They carry arms openly; and Commander-in-Chief only, in contradistinction
4) They conduct their operations in to requisitions which may be demanded by
accordance with the laws and custom of the Commander in a locality;
war. (1982 Bar) 3) a receipt must be given to each contributor;
4) the levy must be made as far as possible, in
accordance with the rules in existence and
When POW should be returned the assessment in force for taxes.
Upon cessation of war or hostilities. However,
POWs facing criminal trial may be detained until Neutrality
the termination of the proceedings or
punishment.
Neutrality Defined
When is a Territory Deemed Under Neutrality v. Neutralization
Rights and Duties of Neutrals and Belligerents
Military Occupation?
Territory is deemed to be occupied when it is Passage of Belligerent Warships
Prohibition of Warlike Activities in Neutral
placed as a matter of fact under the authority of
the hostile army. Territory
Neutral Asylum to Land and Naval Forces of
Belligerent
TAN SE CHIANG v. DIRECTOR OF POSTS Right of Angary
Blockade
Belligerent occupation becomes an accomplished Contraband
fact the moment the government of the invaded Unneutral Service
territory is rendered incapable of publicly Right of Visitation
exercising its authority and the invader is in a
position to substitute and has substituted his own Neutrality
authority for that of the legitimate government of An attitude of impartiality adopted by third
the occupied territory. States towards belligerents and recognized by the
belligerents, such attitude creating rights and
NOTE: Belligerent occupation is different from duties between the impartial States and the
Military occupation. belligerents.
Rights & Duties of a Belligerent Occupant Neutrality vs. Neutralization (1988 Bar)
to continue orderly government Neutrality Neutralization
to exercise control over the occupied Obtains only during war A condition that
territory and its inhabitants. applies in peace and
war
NOTE: The belligerent occupant cannot compel A status created under A status created by
the inhabitants to swear allegiance to him. international law, by means of a treaty
means of a stand on the
CO KIM CHAN V. VALDEZ TAN KEH part of a state not to
75 Phil 371 side with any of the
parties at war
Brought about by a Cannot be effected by
His rights over the occupied territory are merely unilateral declaration unilateral act only but
that of administration; hence he cannot, while by neutral state must be recognized by
other states. long as such repairs are absolutely necessary to

render them seaworthy, not repairs which would Notes:
Q: Switzerland and Austria are outstanding add in any way to their fighting force. Also,
examples of neutralized states. What are the belligerent warships cannot take shelter in a
characteristics of neutralized states? (1988 Bar) neutral port for any undue length of time in order
A: Whether simple or composite, a state is said to evade capture. The maximum length of stay
to be neutralized where its independence and permissible is 24 hours, unless the neutral state
integrity are guaranteed by an international has prescribed otherwise in their municipal laws
convention on the condition that such state or unless the nature of repairs to be done or the
obligates itself never to take up arms against any stress of weather would require a longer time.
other state, except for self-defense, or enter into
such international obligations as would indirectly Neutral ports may not become places of asylum or
involve it in war. A state seeks neutralization permanent rendezvous for belligerent prizes. The
where it is weak and does not wish to take an rule is that a prize may not be brought into a
active part in international politics. The power neutral port, except under certain circumstances.
that guarantees its neutralization may be
motivated either by balance of power
considerations or by desire to make the state a NEUTRAL ASYLUM TO LAND AND NAVAL FORCES
buffer between the territories of the great OF BELLIGERENT
powers. POW’s who escape into neutral territory or are
brought into neutral territory by enemy troops
Rights and Duties of Neutrals & Belligerents who themselves take refuge there shall become
The nature of their rights are correlative, that is, free ipso facto, and the neutral State shall leave
a right of a neutral gives rise to a corresponding such prisoners at liberty, but if it allows them to
duty on the part of the belligerents, and a right of remain in its territory, it may assign them a place
a belligerent corresponds to a duty of the neutral. of residence so as to prevent them from rejoining
their forces.
1) duty of abstention (negative) – should
not give assistance, direct or indirect, to As regards fugitive soldiers, the neutral State is
either belligerent in their war efforts. not obliged to grant them asylum, although it is
not forbidden to do so.
2) duty of prevention (positive) – places
the neutral State under obligation to Belligerent aircraft and their personnel, if they
prevent its territory from becoming a are compelled to land in neutral territory, must
base for hostile operations by one be interned.
belligerent against the other.
In case a belligerent men-of-war refuses to leave
3) duty of acquiescence (passive) – neutral port in which it is not entitled to remain,
requires a neutral to submit to acts of the neutral State concerned has the right to take
belligerents with respect to the such measures as it deems necessary to render
commerce of its nationals if such acts are the ship incapable of putting to sea for the
warranted under the law of nations. duration of the war. When the belligerent ship is
detained by a neutral State, the officers and crew
PASSAGE OF BELLIGERENT WARSHIPS are likewise interned, either in the ship itself or
A neutral State may allow passage of belligerent in another vessel or on land, and may be
warships through the maritime belt forming part subjected to such restrictions as may be
of its territorial waters. What is prohibited is the necessary.
passage upon its national rivers or canals. The
exception, however, are the canals which have RIGHT OF ANGARY
become international waterways (such as the Suez A right of a belligerent to requisition and use,
Canal and the Panama Canal). subject to certain conditions, or even to destroy
in case of necessity, neutral property found in its
PROHIBITION OF WARLIKE ACTIVITIES IN territory, in enemy territory or in the high seas.
NEUTRAL TERRITORY
The Hague Convention No. XIII provides that 3 Conditions
“belligerents are forbidden to use neutral ports a. there must be an urgent need for the
and waters as base of naval operations against property in connection with the offensive
their adversaries.” Thus, a neutral must prevent or defensive war;
belligerent warships from cruising within its b. the property is within the territory or
maritime belt for the purpose of capturing enemy jurisdiction of the belligerent;
vessels as soon as they leave it. c. compensation must be paid to the owner.
In the event that a neutral port or roadstead is NOTE: A neutral subject within the territory of a
used for repairs, the neutral state may allow it as belligerent is not entitled to indemnity from
either side against the loss of property occasioned

by legitimate acts of war. Doctrine of Ultimate Consumption Notes:
Goods intended for civilian use which may
BLOCKADE ultimately find their way to and be consumed by
An operation of war carried out by belligerent the belligerent forces are also liable to seizure on
seacraft or other means, for the purpose of the way.
preventing ingress and egress of vessels or aircraft
of all nations to and from the enemy coast or any Doctrine of Ultimate Destination
part thereof. The liability of contraband to capture is
determined not by their ostensible but by their
real destination. Even if the vessel stops at an
CONTRABAND intermediate neutral port, it will still be
A term used to designate those goods which are considered as one continuous voyage provided it
susceptible of use in war and declared to be can be shown that its cargo will ultimately be
contraband by a belligerent, and which are found delivered to a hostile destination.
by that belligerent on its way to assist the war
operations or war effort of the enemy. STONE UNNEUTRAL SERVICE
Denotes carriage by neutral vessels of certain
Requisites: persons and dispatches for the enemy and also the
a) susceptible of use in war taking of direct part in the hostilities and doing a
b) destined for the use of a belligerent in its number of other acts for the enemy. A neutral
war effort. vessel engaged in unneutral service may be
captured by a belligerent and treated, in general,
Kinds of Contrabands in the same way as neutral vessels captured for
a) absolute – goods which by their very carriage of contraband.
nature are intended to be used in war.
b) conditional – goods which by their nature RIGHT OF VISITATION
are not destined exclusively for use in The right of belligerents (exercised only by men-
war, but which are nevertheless of great of-war and military aircraft of belligerents) to
value to a belligerent in the prosecution visit and, if it be needed, to search neutral
of the war. e.g. foodstuff, clothing, fuel, merchantmen for the purpose of ascertaining
horses, etc. whether they really belong to the merchant
marine of neutral States, and if this is found to be
Hostile destination the case, whether they are attempting to break
In case of absolute contraband it is necessary only blockade, carrying contraband or rendering
to prove that the goods had as their destination unneutral service. Only private or merchant
any point within enemy or enemy-controlled vessels may be subjected to visit and search.
territory. In the case of conditional contraband, it
is required that the goods be destined to the CAPTURE
authorities or armed forces of the enemy. In Takes place if the cargo, or the vessel, or both,
both, the destination as of moment of seizure is are liable to confiscation, or if grave suspicion
critical. requires further search which can only be
undertaken in a port.
Doctrine of continuous voyage
Goods which are destined to a neutral port cannot
be regarded as contraband of war. TRIAL BEFORE A PRIZE COURT
The captured vessel and cargo, must be brought
before a Prize Court for trial.
Consequences of contraband carriage
Neutral States are not under obligation to prevent 
their subjects from carrying contraband to
belligerents. However, Neutral States have the END
duty to acquiesce in the suppression by
belligerents of trade in contraband.
Doctrine of Infection
Under the British and American practice, the
penalty for carriage of contraband would be
confiscation of the contraband cargo. Innocent
cargo belonging to the same owner would also be
subject to confiscation. Innocent cargo belonging
to another owner would be released, but without
compensation for delay and detention in the Prize
Court.
THIS IS PURELY FOR ACADEMIC PURPOSES AND IS

STRICTLY NOT FOR SALE. Notes:
ACKNOWLEDGMENTS / ATTRIBUTIONS
THIS IS A PRODUCT OF LIBERTAS ET IUSTICIA 2007 BAR. The City Mayor issues an Executive Order
declaring that the city promotes responsible parenthood
COMPILED BY ITS ACADEMICS COMMITTEE 2007- and upholds natural family planning. He prohibits all
2008. ALTHOUGH THIS IS MAINLY OUTLINED FOR hospitals operated by the city from prescribing the use
PUBLIC INTERNATIONAL LAW CLASS UNDER ATTY. of artificial methods of contraception, including
EDWIN REY SANDOVAL, THIS MATERIAL MAY ALSO condoms, pills, intrauterine devices and surgical
BE OF GOOD USE UNDER OTHER PROFESSORS sterilization. As a result, poor women in his city lost
HANDLING THE SAME SUBJECT AS WELL AS THOSE their access to affordable family planning programs.
TAKING REVIEW SUBJECT ON POLITICAL AND Private clinics! however, continue to render family
PUBLIC INTERNATIONAL LAW. planning counsel and devices to paying clients.
a. Is the Executive Order in any way
constitutionally infirm? Explain.
THERE ARE DIFFERENT DISCUSSIONS WHICH WERE b. Is the Philippines in breach of any obligation
CULLED FROM AUTHORS ASIDE FROM ATTY. under international law? Explain.
SANDOVAL’S LECTURES AND CASES SUCH AS
SALONGA & YAP AND CRUZ. c. May the Commission on Human Rights order
the Mayor to stop the implementation of the
WE ENCOURAGE THE FREE CIRCULATION OF THIS Executive Order? Explain.
MATERIAL AMONGST THE RANKS OF STUDENTS,
BARRISTERS, PROFESSORS, LAWYERS, LEGAL
ENTHUSIASTS AND THE LIKE.
WE SALUTE ATTY. SANDOVAL FOR HIS NEVER

FADING BRILLIANCE IN THE FIELD OF POLITICAL
LAW, AND TO WHOM WE OFFER THIS MATERIAL
WITH HUMILITY AND PRIDE.
COMPARATIVE TABLE OF PROHIBITED ACTS
PROHIBITED ACTS CONSEQUENCES ON THE CONSEQUENCES ON THE

OF A VESSEL CARGO
NEUTRAL STATE
1. If owned by the owner of the vessel

- confiscated/condemned
2. If owned by a different owner

Breach of Blockade Confiscated or brought to a - shall be confiscated IF:
prize court a) it consists of contrabands; or
b) the owner knew that the goods
shipped is going to a blockaded point
and is going to be blockaded.
General Rule: Shall be Contraband cargo: confiscated.

confiscated and seized. Innocent cargo:
1. If owned by the owner of the vessel, it
Exception: When the cargo shall be confiscated (Doctrine of
Carriage of consists of both contrabands Infection).
Contraband and innocent goods, it (vessel) 2. If owned by a different person, it shall
may only be confiscated if the not be confiscated but it shall be

contraband cargo is more released without compensation due to Notes:
than ½ of the total cargo by the delay of release and detention in
value, weight, volume and the Prize Court.
freight.
Performance of Same as in Carriage of Same as in Carriage of Contrabands

Unneutral Service Contrabands
2007 BAR. Lawrence is a Filipino computer expert based in Manila who invented a virus that destroys all the files
stored in a computer. Assume that in May 2005, this virus spread all over the world and caused $50 million in damage
to property in the United States, and that in June 2005, he was criminally charged before United States courts under
their anti-hacker law. Assume that in July 2005, the Philippines adopted its own anti-hacker law, to strengthen
existing sanctions already provided against damage to property. The United States has requested the Philippines to
extradite him to US courts under the RP-US Extradition Treaty.
a. Is the Philippines under an obligation to extradite Lawrence? State the applicable rule and its rationale.
b. Assume that the extradition request was made after the Philippines adopted its anti-hacker legislation. Will
that change your answer?
2007 BAR. In 1993, historians confirmed that during World War II, "comfort women" were forced into serving the
Japanese military. These women were either abducted or lured by false promises of jobs as cooks or waitresses, and
eventually forced against their will to have sex with Japanese soldiers on a daily basis during the course of the war,
and often suffered from severe beatings and venereal diseases. The Japanese government contends that the "comfort
stations" were run as "onsite military brothels" (or prostitution houses) by private operators, and not by the Japanese
military. There were many Filipina "comfort women."
a. Name at least one basic principle or norm of international humanitarian law that was violated by the
Japanese military in the treatment of the "comfort women."
b. The surviving Filipina "comfort women" demand that the Japanese government apologize and pay them
compensation. However, under the 1951 San Francisco Peace Agreement -the legal instrument that ended
the state of war between Japan and the Allied Forces -all the injured states, including the Philippines,
received war reparations and, in return, waived all claims against Japan arising from the war. Is that a
valid defense?
c. The surviving Filipina "comfort women" sue the Japanese government for damages before Philippine courts.
Will that case prosper?

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NOTES:

2008 LEI Notes in

Public International Law

“Nam omnia praeclara tam difficilia quam rara sunt”

Public Private 5. Infractions Generally,

★ Tacit consent in the case of customary

From the Viewpoint of Doctrine HELD: NO.

From the Viewpoint of Practice However, if the conflict is irreconcilable and a

Pacta Sunt Servanda Article 38 of the Statute of International Court of

Tañada vs. Angara B. Secondary

★ Bilateral arrangements concerning matters

IV. Judicial decisions The primary sources may be considered as formal

The subsidiary means serves as evidence of law. A d. Consequences of Recognition of

government since 1957. This appears to be the

In 1929, Italy and the Holy See entered into the

★ The definition covers the following EX. the Commonwealth

(a) Keeping of order and providing for

Legal - (b) Combatants – not covered by said rule

Characteristics of Sovereignty EFFECTS OF A CHANGE IN SOVEREIGNTY

It is “the dictatorial interference by a State in the  There was an SC Resolution,

Nicaragua v. United States Declaratory School

Q: Distinguish briefly but clearly between the

The Constitution limits resort to the political

Consequences of Recognition of Belligerents

★ Camp Abu-Bakr—MILF almost had control FORMS OF RECOGNITION

Modes of Acquisition of Territory ★ Q: Today, few, if any places are terra

CHARACTERISTICS OF TERRITORY ☀ Q: What if the discovering state

☀ effective occupation does not - the ceding State is absorbed by the

Right of Innocent Passage

Q: Explain Innocent Passage. (1991 Bar)

 Passage only for continuous,

2. Theoretical limit of air flights is 90 km above

Q: What is outer space? Who or which can THE UNITED NATIONS

GA Sessions Voting in Committees is by a simple majority. In

GA Voting Rules An organ of the UN primarily responsible for the

ICJ Jurisdiction Procedure in the ICJ

Functions of ICJ parties. Therefore, a private individual like A

In filing this petition, the petitioners interpret xxx

formally confirmed and approved by a State. By 4. Universality Principle

i. The Inquiry, usually informal, property held by him in a private or

b) Accomplishment of the purpose Q: Do consuls enjoy their own immunities and

2 Kinds of Consuls c) An action relating to any

a) Arising out of a CONTRACT protection to Philippine diplomatic agents,

Q: Adams and Baker are American citizens

Extradition thought that international law imposed a legal

BASIS EXTRADITION DEPORTATION On the eve of the assassination attempt, John’s

or should it extradite A, B, C and D to the for an offense committed in France prior to

The present extradition case further validates the

It is significant to note that Section 6 of PD 1069,

Q: Is respondent Mark Jimenez entitled to bail

arrest of the accused who is at large or has

8) We realize that extradition is essentially an HELD:

“The time-honored principle of pacta sunt

h) the establishment of international a) Ratification – waiving the right to

international community as a whole. e.g. the b) it is otherwise established that the

Reservations ★ Nevertheless, in the Philippines, treaties are

Q: What is the “most-favored-nation” clause? refund of overpaid withholding tax on royalties

Influences to ensure observance to PSS AGUSTIN V. EDU (1979)

New States Formed Through Decolonization