Public International Law 2.

Outlawing of genocide;
body of legal principles, norms and processes 3. Basic human rights; and,
which regulates the relations of States and other 4. Protection from slavery and racial
international persons and governs their conduct discrimination.
affecting the interest of the international community
as a whole. Jus Cogens
A body of customary and conventional rules also referred to as ‘peremptory norm of general
which are considered legally binding by civilized States international law’. It literally means “compelling law.”
in their intercourse with each other (Oppenheim) A norm accepted and recognized by the international
community of States as a whole as a norm from which
Private International Law (PRIL) or Conflict of Laws no derogation is permitted and which can be modified
It is that part of law which comes into play when the only by a subsequent norm of general international
issue before the court affects some fact, event or law having the same character. (Vienna Convention on
transaction that is so clearly connected with a foreign the Law of Treaties, Art. 53)
system of law as to necessitate recourse to that
system. Elements of Jus cogens:
a. A norm accepted and recognized by international
The Natural Law community of states as a whole;
There is a natural and universal principle of right b. No derogation is permitted; and
and wrong, independent of mutual intercourse or c. Which can only be modified by a subsequent norm
compact, which can be discovered and recognized by having the same character.
every individual through the use of his reason and
conscience. Examples:
1. Laws on genocide;
The Positivist School 2. Principle of self-determination;
the binding force of IL is derived from the 3. Principle of racial non-discrimination;
agreement of the States to be bound by it. 4. Crimes against humanity;
5. Prohibition against slavery and slave trade;
Grotian Theory 6. Piracy; and
Represents a compromise between the (1) Law of 7. Torture.
Nature School and (2) Positivist School. It submits that Ex aequo et bono
international law is binding partly because it is good literally means “according to the right and good” or
and right and partly because the States have agreed to “from equity and conscience.”
be bound by it. A judgment based on considerations of fairness, not
on considerations of existing law, that is, to simply
Obligation Erga Omnes decide the case based upon a balancing of the
An obligation of every State towards the equities.
international community as a whole. All states have a
legal interest in its compliance, and thus all States are However, the parties must expressly authorize
entitled to invoke responsibility for breach of such an the court to decide a case ex aequo et bono.
obligation.
Doctrine of incorporation
Examples of obligations erga omnes: It means that the rules of international law form
1. Outlawing of acts of aggression; part of the law of the land and no further legislative

1
action is needed to make such rules applicable in the the parties. A state which has contracted a valid
domestic sphere. international agreement is bound to make in its
legislation such modification as may be necessary to
The doctrine of incorporation is applied whenever ensure fulfillment of the obligation undertaken.
municipal tribunals (or local courts) are confronted
with situations in which there appears to be a conflict Primary Sources of International Law:
between a rule of international law and the provisions 1. International conventions or treaties;
of the Constitution or statute of the local state. 2. International custom; and
3. The general principles of law recognized by civilized
Efforts should first be exerted to harmonize them, so nations
as to give effect to both since it is to be presumed that
municipal law was enacted with proper regard for the Subsidiary Sources:
generally accepted principles of international law in 1. Judicial decisions; and
observance of the Incorporation Clause in Section 2, 2. Teachings of the most highly qualified publicists of
Article II of the Constitution. various nations.

The doctrine of incorporation decrees that rules of INTERNATIONAL CUSTOM OR CUSTOMARY

international law are given equal standing with, but INTERNATIONAL LAW (CIL)
are not superior to, national legislative enactments. A custom is a practice which has grown between
Accordingly, the principle of lex posterior derogat states and has come to be accepted as binding by the
priori takes effect – a treaty may repeal a statute and a mere fact of persistent usage over a long period of
statute may repeal a treaty. time.

In the Philippines, the Constitution is the highest law Elements:

of the land. Hence, both statutes and treaties may be 1. Prevailing practice by a number of States;
invalidated if they are in conflict with the Constitution. a. Must be demonstrated to have been general,
uniform (complete uniformity is not required) and
Lex posterior derogatory priori over a long enough period of time to enable it to
a treaty may repeal a statute and a statute may crystallize. (the ICJ in the North Sea Continental Shelf
repeal a treaty. case, stated that the time period must be long enough
it favors that which comes last in time, which to show that the other requirements are satisfied)
usually be upheld by the municipal tribunal.
2. Attended by opinio juris (constitutes a State’s belief
Doctrine of transformation that its is acting due to sense of legal obligation, which
It provides that the generally accepted rules of must always be proven).
international law are not per se binding upon the state
but must first be embodied in legislation enacted by Opinio juris
the lawmaking body and so transformed into second element necessary to establish a legally
municipal law. binding custom.
It denotes a subjective obligation, a sense on
Pacta sunt servanda behalf of a state that is bound to the law in question.
International agreements must be performed in acting due to a legal obligation
good faith. A treaty engagement is not a mere moral
obligation but creates a legally binding obligation on Persistent objector rule

2
 if during the formative stage of a rule of a. Protectorates;
customary international law, a State persistently b. Federal states; and
objects to that developing rule it will not be bound by c. Mandated and trust territories.
it. Once a customary rule has come into existence, it Object
will apply to all States except any persistent objectors. They are those who indirectly have rights under,
However, an objecting State, in order to rely on the or are beneficiaries of international law through
persistent objector rule, must: subjects of international law.
1. Raise its objection at the formative stage of the rule
in question; STATE (P-T-S-G)
2. Be consistent in maintaining its objection; and, It is a community of persons, more or less
3. Inform other States of its objection. numerous, permanently occupying a definite portion
of territory, independent of external control (capacity
This is particularly important with regard to a rule to enter into relations with other states), and
which has been almost universally accepted. If a State possessing an organized government to which the
remains silent, its silence will be interpreted as great body of inhabitants render habitual obedience.
acquiescence to the new rule.
Elements of a State:
***if there is a conflict between a treaty and a 1. Permanent population (people) – An
custom, a treaty is superior. XPN: the custom involved aggregate of individuals of both sexes, who live
is jus cogens. (N-ARDM) together as a community despite racial or cultural
differences;
GENERAL PRINCIPLES OF LAW 2. Defined territory – Fixed portion of the earth’s
The general principles of law are mostly derived surface which the inhabitants occupy;
from the law of nature and are observed by the 3. Government – The agency through which the will of
majority of states because they are believed to be the state is formulated, expressed and realized; and
good and just. 4. Capacity to enter into relations with other states
(independence/sovereignty) – The power of a state to
The subjects of international law: manage its external affairs without direction or
1. Direct subjects interference from another state.
a. States;
b. Colonies and dependencies; Other suggested elements of a State:
c. mandates and trust territories; belligerent 1. Civilization
communities; 2. Recognition
d. The Vatican;
e. The United Nations; international administrative Theories on Recognition
bodies; and 1. Constitutive (Minority view) - recognition is the act
f. To a certain extent, individuals. which constitutes the entity into an international
person. Recognition is compulsory and legal; it may be
2. Indirect subjects compelled once the elements of a State are
a. International organizations; established. (last indispensable element)
b. Individuals; and 2. Declarative (Majority view) - recognition merely
c. Corporations. affirms an existing fact, like the possession by the
State of the essential elements. It is discretionary and
3. Incomplete subjects political.

3
Basis of Authority of the President (TRiMP) Doctrine of Association
a. Treaty-making power; It is formed when two states of unequal power
b. Right in general to act as the foreign policy voluntarily establish durable links. In the basic model,
spokesman of the nation; one state, the associate, delegates certain
c. Military power; and, responsibilities to the other, the principal, while
d. Power to send and receive diplomatic maintaining its international status as a state. Free
representatives. association represents a middle ground between
integration and independence.
Extinguishment of a State
The radical impairment or actual loss of one or Belligerent community
more of the essential elements of the state will result may be described as a group of rebels under an
in its extinction. organized civil government who have taken up arms
against the legitimate government.
Principle of State Continuity When recognized, it is considered a separate
The State continues as a juristic being state for poses of conflict and is entitled to all the
notwithstanding changes in its circumstances, rights, and subjected to all the obligations of a full-
provided only that such changes do not result in the fledged belligerent under laws of war.
loss of any of its essential elements.
1. It may refer to the state of war between two (2) or
Succession of a State more states. In which case, the states of war are
State succession takes place when one state referred to as the belligerent states; and
assumes the rights and some of the obligations of 2. Actual hostilities amounting to civil war
another because of certain changes in the condition of within a single state.
the latter. This holds true in the event that a state is
extinguished or is created. Requisites in recognizing belligerency (OSSO):
1. There must be an Organized civil government
Succession of government directing the rebel forces;
There is succession of government where one 2. The rebels must occupy a Substantial portion of the
government replaces another either peacefully or by territory of the state;
violent methods. The integrity of the state is not 3. The conflict between the legitimate government
affected; the state continues as the same international and the rebels must be Serious, making the outcome
person except only that its lawful representative is certain; and
changed. 4. The rebels must be willing and able to
Effects of a change of government Observe the laws of war.
1. If the change is peaceful, the new government
assumes the rights and responsibilities of the old International Organizations
government; and, Bodies created by sovereign states and whose
2. If the change was effected thru violence, a functioning is regulated by international law, not the
distinction must be made. law of any given country. They have functional
a. Acts of political complexion may be personality which is limited to what is necessary to
denounced;and, carry out their functions as found in the instruments
b. Routinary acts of mere governmental of the organization. It is set up by treaty among two or
administration continue to be effective. more states. It enjoys immunity which is based on the

4
need for effective exercise of its functions and is parties must respect under the doctrine of pacta sunt
derived from the treaty creating it. servanda, although it actually applies even to non-
member States, at least in so far as may be necessary
Individuals for the maintenance of international peace and
individual person is now a valid subject of security.
international law.
Yalta Formula
Classes of States: it is a voting formula wherein each member of the
1. Independent - has freedom to direct and Security Council shall have one vote, but distinction is
control foreign relations without restraint from other made between the permanent members and the non-
States. permanent members in the resolution of substantive
A. Simple - single central govt questions. Procedural matters are to be decided by
B. Composite - two or more the affirmative vote of any nine or more members.
2. Dependent - does not have full freedom in the Non-procedural matters are decided by the
direction of its external affairs, such as concurrence of at least nine members, including all
A. Protectorate (which is established at the the permanent members. The determination of
request of the weaker state for the protection by whether a matter is procedural or substantive is non-
a string power); or procedural. This allows for the so-called “double veto”
B. Suzerainty (result from a concession from by a permanent member of the Council. However, the
a State to a former colony that is allowed to be abstention of absence of any permanent member is
independent subject to the retention of certain not considered a “veto”.
powers over the external affairs of the latter)
Lex mercatoria
3. Neutralized - whose independence and or “law merchant” is used to designate the concept of
integrity are guaranteed by an international treaty on an a-national body of legal rules and principles, which
the condition that such State obligates itself never to are developed primarily by the international business
take up arms against any other state (except in self- community itself based on custom, industry practice,
defense) or to enter into an international obligation as and general principles of law that are applied in
would indirectly involve it in war. commercial arbitration in order to govern transactions
between private parties, as well as between private
Vatican City and the Holy See parties and States, in transborder trade, commerce,
It has all the rights of a State, including and finance.
diplomatic intercourse, immunity from foreign
jurisdiction, etc. Baxter Paradox
where there is a widely ratified treaty, harder to get
Colonies and Dependencies - a colony is a dependent evidence of opinio juris for state conduct because the
political community consisting of a number of citizens practice follows the obligations during the treaty and
of the same country who have migrated therefrom to not because those states think that practice should be
inhabit another country, but remain subject to the a customary law.
mother State.
countries will seek to codify in treaties international
UN Charter - that is the closest to a constitution that community expectations that are considered common
basically governs the relations of international "customary law". However, the more countries that
persons. Technically, it is a treaty, a contract which the sign on to the international treaties, the more difficult

5
it becomes to differentiate the customary law (that - the force used in self-defense must be proportional
exists without treaty) from the terms of the treaties to the seriousness of the attack and danger being
themselves. defended against

Austinian Dilemma Anticipatory Self-defense

claims that a consistent and coherent application of - deals with an attack that has not happened yet, but
law requires a sovereign power to oversee there is proof that it is imminent. The aggressor State
enforcement, but is absent at the international level, is in the final preparations for launching the attack.
questions the validity and jurisdiction of international The defending State has solid proof that there will be
law over states. an attack and decides to strike first and not wait for
FUNDAMENTAL RIGHTS OF THE the attack to commence.
- however, under the international law, it is still
STATE
uncertain and unclear if this is a valid tool.

A.The Right of Existence, Integrity and Self- Collective Self-defense

preservation - refers primarily to the well-established UN Charter
•The most basic and important right by far right of States to defend other States.
•Right of the State to individual and collective self- - a right of the State whenever an armed attack occurs
defense and until the UN Security Council has taken measures
to maintain internation peace and security.
- if an armed attack occurs against such State - here, the State which was being attacked must
- until the Security Council has taken measures request a help from the other states before the latter
needed to maintain the international peace and can intervene
security
What is aggression?
NOTE: This right (individual and collective self- •This occurs when a State uses an armed force against
defense) may only be invoked when there is a clear another State’s sovereignty, territorial integrity or
showing of grave and actual danger and must be political independence or in any other manner which
limited by necessity. is inconsistent with the UN Charter.
•Crime against international peace
Security Council
- will be the one to determine WON an armed attack B.The Right of Sovereignty and Independence
has taken place.
Sovereignty
Criteria of Self-Defense (under the 1830 Caroline -totality of the powers, legal competence and
Affair): privileges of a State arising from customary
international law
1.Necessity to make self-defense (how sudden and -Not dependent on the consent of another State
overwhelming the conduct being defended to) -A self-governing state
2. -Supreme power or authority
2.“Reasonableness” and “Proportionality” of the
means which will be used for self-defense Independence
-“freedom” to conduct foreign relations without
Proportionality outside control

6
-Freedom from outside control and support 5.Political independence
-But not an absolute freedom considering that there is
also some valid restraints thereof (obligation to “Act of State Doctrine”
observe the right of others; treaty stipulations and  every sovereign State is bound to respect the
obligations arising from being a member in the independence of every other sovereign State
international organizations.)
 A doctrine stating that each sovereign state has
Intervention complete control over the laws within its own
-this is an act of a State wherein it interferes in borders and that its acts cannot be questioned in
internal or external affairs of another State either the courts of another state.
through the use of force or threat of force (physical,
political or economic)  Here, national courts must refrain from
prosecuting the validity of official acts carried out
NOTE: Under contemporary international law, as a by a foreign state within its own territory, except
rule, intervention is not allowed for the reason that if it commits violations of international norms
disputes internationally shall be fixed or settled with broad consensus of international society
through peaceful means.  is one of the methods by which States prevent
their national courts from deciding disputes which
At present, intervention is allowed merely as an relate to the internal affairs of another State, the
act of individual or collective self-defense in response other two being immunity and non-justiciability.
to an armed attack; pursuant to treaty stipulations or
with prior UN authorization. Legal Effects of Sovereign Equality on Jurisdiction:

a. International Consequence - a State cannot be

Humanitarian Intervention sued or be compelled to arbitrate or mediate without
-intervention of a State towards another State for the its consent.
purpose of protecting the nationals of the invaded
State. b. Domestic Consequence - matters that are
-Given the principle of sovereignty, this kind of within the exclusive competence, a State cannot be
intervention is still debatable if the same shall be interfered with by other States.
considered valid
- Under UN Charter, “nothing in the UN Charter
C.The Right of Equality shall be construed to authorize the UN to
intervene in matters that are essentially within the
•Christian Wolff’s writing: “by nature all nations domestic” jurisdiction of any State.
should be regarded as equal with one another,” thus
nations, being made up of free individuals, must Exception: Intervention is allowed ONLY when the
necessarily be equal since all men are born equal. matter involved falls under those which
are within the jurisdiction of the UN Security Council
Principle of Sovereign Equality (what is guaranteed) to intervene in.
1.Equal in law
2.Rights of Sovereignty State Immunity
3.Personality
4.Territorial integrity Doctrine of State Immunity

7
 - protects a State and its property from the is under government control and exercising a
jurisdiction of the courts of another State governmental function.
- As the result of the independence, territorial
supremacy and equality of a State Certain categories of persons which international law
- covers warships and other government ships accords immunity from the jurisdiction of municipal
operated for non-commercial purposes. [Arts. 17-23 courts:
of the 1982 UNCLOS]
- although Head of State cannot be arrested in a 1.Foreign States
foreign country, this will not apply where the Head of - the state’s immunity extends to Head of States who
the State has been arrested or detained pursuant to a is the personification of the State.
case before an international tribunal. - cannot be arrested or detained in a foreign territory.
- torture and killings are not official acts to which Limitations: not applicable where the said Head of the
a Head of State can claim immunity from [RP vs. State has been arrested or detained pursuant to a case
Marcos] before an international tribunal (e.g. charges of
- restrictive application - cannot be invoked with genocide, war crimes and the like), hence, they can be
respect to private and proprietary acts. arrested and detained.

Exception: Rationae Materiae

(i) the State gave consent; - immunity from public acts while still in the
(ii)waived its immunity; or office Immunity for private acts done while still in
(iii)voluntarily submitted to the jurisdiction of the the office.
court concerned
Rationae Personae
-Based on the principle of par in parem non habet - immunity granted to certain officials because of
imperium and principle of non-intervention - neither the office they hold, in relation to the act they have
may its public property be attached or taxed, nor its committed.
public vessels be boarded, arrested, or sued.
International Law Commission Draft Articles on
Right of innocent passage Jurisdictional Immunities of States and Their
-immunity afforded to foreign merchant vessels and Properties
other foreign ships being operated for commercial
purposes -interesting insight about the doctrine of State
-Less immunity from suit but more on immunity from Immunity
molestation while within another State’s territorial
waters. -In its earlier drafts, there was absolute immunity
-Will not afford immunity from suit if they commit a proposed for all acts
criminal act while in that jurisdiction of another State.
-Recent drafts, no longer absolute immunity but only
State Organs with regard to sovereign and public act; no longer
-legislative, executive and judicial branches of a State distinction of jure imperii and jure gestiones
enjoy immunity
Other State Entities jure imperii are acts of a sovereign nature and are
-may, as well, claim immunity if there is a showing that subjected to immunity.
the entity which is seeking or claiming State immunity jure gestionis are commercial acts in respect of which

8
the state is not immune but is subject to the part that it will consent to the institution of the
jurisdiction of the territorial sovereign. proceedings.

Liability of the State Status of “Doctrine of State Immunity” under the

-considering that the present rule recognizes the Philippines
distinction between public and private acts of a State, -may only be invoked where it is ultimately the State
a State who does not extend immunity to the private and not the official being charged, who has to bear
acts of another State cannot be held liable under the the consequences.
international law. On the other hand, if a State does -Thus, if award of damages would result to the
not extend immunity to another States in connection appropriation by Congress, then it is probably one
with the public acts of the latter, then it may be held which is against the State.
liable in violating the principle of State Immunity - If it also affects the property rights and interest of
the States and not merely those officials which are
State Immunity vs. Nonjusticiability included as defendants.
Extended as recognition of the sovereign equality NOTE: Even though it is said that the State is the one
Comes into play when the domestic court is who is ultimately liable, if the acts involved is jure
incapable or no capacity to rule on the subject matter gestionis, State Immunity cannot be invoked.

Immunity of International Organizations

JURISDICTION
-extends to diplomatic personnel; United Nations, its
organs and specialized agencies; and to international  power or authority exercised by a state over land,
organizations persons, property, transactions, and events
within or sometimes outside its territory, subject
Reason: functions are of level of importance so as to to certain exceptions.
merit their organizations and their staffs privileges and
immunities; and to enable them to perform their work  As an aspect of sovereignty, it gives the State the
more effectively. prerogative to carry out executive, legislative and
judicial actions in the course of its rule.
NOTE: These privileges and immunities granted to
these international organizations are only those Types of Jurisdiction
granted to them by treaty or by their charter.
1.Prescriptive
Waiver of Immunity (How?) -pertains to the ability of the State to define its
1.When the States gives consent at the time of the own laws with respect to any matter it chooses.
institution of the proceedings; -this means that the legislature can create,
amend or repeal legislation covering any subject or
2.When it already takes steps as to the merits of the any person, irrespective of the person’s nationality or
case before it invokes immunity; location.

3.When it had previously given consent by a treaty or 2. Enforcement Jurisdiction

contract; or -refers to a State’s authority to ensure
compliance with its laws.
4.When by law or regulation in force at the time the -The ability of the State to enforce the laws it has
complaint arose, there was already indication on its created

9
 -Unlike prescriptive jurisdiction, this is limited by jurisdiction over an act which
several factors including territory and nationality. It ended in their territory.
cannot exist without Prescriptive Enforcement.
3. Judicial Jurisdiction
Private IL - civil cases involving questions of A.Personal - Power exercised by a state over its
jurisdiction nationals. Based on theory that a national is entitled
to the protection of his state wherever he may be and
Public IL - questions of jurisdiction involving criminal is (Doctrine of indelible allegiance)
cases
B.Territorial - Gen. Rule: state has jurisdiction
Bases of Jurisdiction over all persons and property within its territory

a.Territorial Principle b. Nationality Principle

 the State may exercise jurisdiction only within its  the State has jurisdiction over its nationals
territory. anywhere in the world.

Exception: the State may have jurisdiction Based on the Theory: unless a national is prepared to
over persons and acts which are done renounce his nationality, he is therefore entitled to the
outside its territory depending on the kind of protection of the State wherever he may be and thus,
jurisdiction it invokes. is bound to it by duty of obedience and allegiance

Civil Matters: no territorial limit  applies as well to civil matters under the Civil
Code: “Laws relating to family rights and duties,
Criminal Matters: only those offense committed within or to the status, condition and legal capacity of
its territory except: persons are binding upon the citizens of the
(i)continuing offenses; Philippines even though living in abroad.” [Article
(ii)Acts prejudicial to the national security or 15, Civil Code], and taxation but does not apply
vital interest of the State; to criminal offenses.
(iii)Universal crimes;
(iv) Offenses covered by special agreement. Determination of Nationality (methods)

State Territory (i) jus sanguinis - regardless of where the child was
-extends to its dependent territories, airspace, born, a child becomes a natural-born citizens if his
aircrafts, ships and territorial sea. parents are citizens;

Note: There is only limited jurisdiction over the (ii) jus soli - whereby citizenship is acquired by birth
contiguous zone, exclusive economic zone and within the territory of the state, regardless of parental
continental shelf citizenship

Subjective territoriality - enables a State to take c. Protective Principle

jurisdiction over an act which  recognizes that a sovereign can adopt a statute
began in their territory. that criminalizes conduct that occurs outside of
its borders when that conduct affects the
Objective territoriality - enables a State to take sovereign itself.

10
 original nationality notwithstanding that he has
In other words, here, the State has jurisdiction over already renounced or forfeited it under the laws
acts committed abroad (either by nationals or of the second state whose nationality he has
foreigners) which are said to be injurious to the State’s acquired. 
National security, Territorial integrity, Political
independence or any other Vital interest. d. Principle of Universality
 allows for the assertion of jurisdiction in cases
Philippine Domestic Law - [Art. 2, RPC] where the alleged crime may be prosecuted by all
Application of its provisions. – Except as provided in states (e.g., war crimes, crimes against the peace,
the treaties and laws of preferential application, the crimes against humanity, slavery, and piracy).
provisions of this Code shall be enforced not only
within the Philippine Archipelago, including its  has jurisdiction over offenses considered as
atmosphere, its interior waters and maritime zone, universal crimes, regardless of where committed
but also outside of its jurisdiction, against those who: and who committed them

1. Should commit an offense while on a Universal crimes - are those which threaten the
Philippine ship or airship; international community as a whole and are
considered criminal offenses in all countries (e.g.,
2. Should forge or counterfeit any coin or piracy jure gentium, genocide, white slave trade, hi-
currency note of the Philippine Islands or jacking, terrorism, war crimes.)
obligations and securities issued by the
Government of the Philippine Islands; e. Principle of Passive Personality
 allows states, in limited cases, to claim
3.Should be liable for acts connected with the jurisdiction to try a foreign national for offenses
introduction into these islands of the obligations committed abroad that affect its own citizens.
and securities mentioned in the presiding number;
 States exercises jurisdiction over crimes against
4.While being public officers or employees, its own nationals even if committed outside its
should commit an offense in the exercise of their territory.
functions; or
Abduction towards Jurisdiction
5.Should commit any of the crimes against  Based from the scholarly opinions, it would be
national security and the law of nations. unlawful and improper for States to exercise
jurisdiction over those they have brought into
EFFECTS DOCTRINE their territory where the means are in violation of
the International Law.
 provides that where the effects of an act are
felt within the territory of a State, the State may take Exemptions from Jurisdiction
jurisdiction over the matter.
a. Doctrine of State Immunity
 applied in relation to anti-trust or economic  protects a State and its property from the
issues. jurisdiction of the courts of another State.
Doctrine of Indelible Allegiance  as the result of the independence, territorial
 an individual may be compelled to retain his supremacy and equality of States

11
 (VCDR)
b. Act of State Doctrine  provides the right of a foreign State to acquire
 under this doctrine, a State should not inquire property in the receiving state for its diplomatic
into the legal validity of the public acts of another mission (Arts. 20 & 22)
State done within the latter’s territory. (Underhill  As well as immunity of the diplomatic envoy from
vs Hernandez) civil jurisdiction of the receiving state over any
real property which the envoy holds on behalf of
Acts not covered: Acts of Torture, Execution and the sending sate for purposes of the mission.
Disappearance (said acts are outside the president’s
authority) 2. 1963 Vienna Convention on Consular Relations
(VCCR)
c. Diplomatic Immunity
 it is one established by mutual consent of States. Head of State
 Part of customary international law granting  enjoys personal immunity from the jurisdiction of
immunity to diplomatic representatives. another State.

Purpose: d. Immunity of the United Nations, its Organs,

(i) to uphold their dignity as representatives of Specialized Agencies, Other International
their respective States; and Organizations and its Officers

(ii) likewise, to allow them them “free and  Under the UN Charter: “organizations, officers,
unhampered” exercise of their respective functions. representatives of members, shall enjoy such
privileges and immunities as are necessary for
Varying Rules for Different Diplomats the independent exercise of their functions”
Procedure in claiming immunity (Philippines):
Purpose:
1. There shall be first a request by the foreign State for (i) To secure them legal and practical independence in
an executive endorsement by the DFA fulfilling their duties;

2. Determination made by the Executive Department (ii) To shield the affairs of International organizations
is a political question which is conclusive before from political pressure or control by the host country
Philippine courts. to the prejudice of the member of the States; and

Characterization of Diplomatic Immunity: (iii) To ensure the unhampered performance of their

Rationae personae - considering that it is based on functions.
the particular identity of the person, namely the What are the immunities enjoyed under the
diplomat or consular representative of the foreign Convention on the Privileges and Immunities of the
State. United Nations?

Principal Conventions a. Legal process in relation to words spoken

Two (2) Main Treaties which deal with Dimplomatic or written and acts in their official
Immunity: capacity;
b. Taxation on salaries and emoluments;
1. 1961 Vienna Convention on Diplomatic Relations c. National service obligations;

12
 d. Immigration, restriction and alien  “floating territory” of the flag state
registration (family members enjoy
this immunity); and  Here, the crew members thereof are immune
e. The same immunities as are enjoyed by from the local jurisdiction provided that they are
diplomats of comparable rank. on shore duty.

SEAFDEC vs NLRC, 241 SCRA 580  This shall not be applied if the said crew
members violate local laws while on furlough
•SEAFDEC, as an international agency, enjoys (leave of absence) or off-duty.
immunity from the legal writs and processes of the
Philippines, because subjection to the local jurisdiction Jurisdiction over Land Territory
would impair the capacity of such body to discharge  the State exercises jurisdiction over everything
its responsibilities impartially in behalf of its member that is found within the State’s territorial domain.
States.
 Nationals and aliens, including non-residents, are
e. Foreign merchants vessels exercising the right of bound by its laws.
innocent passage or arrival under stress
 The local state has exclusive title to all property
Innocent Passage within its territory.
 It is a concept in the law of the sea that allows for
a vessel to pass through the archipelagic and Jurisdiction over Maritime Territory
territorial waters of another state, subject to
certain restrictions. a. Over internal waters
 same jurisdiction as over the land area
 it is the navigation through the territorial sea of a considering that the internal waters are deemed
State for the purpose of traversing that sea assimilated in the landmass.
without entering internal waters, or of
proceeding to internal waters, or making for the In the case of foreign merchant vessels docked in a
high seas from internal waters, as long as it is not local port or bay
prejudicial to the peace, good order or security of  the coastal State exercises jurisdiction in civil
the coastal State. matters, however criminal jurisdiction is different
in a way that it is determined according to two (2)
Arrival under stress rules:
 also known as “involuntary entrance”
 May be due to lack of provisions, French rule
unseaworthiness of the vessel, inclement weather, or  crimes committed aboard a foreign merchant
other cases of force majeure, such as pursuit by vessels should not be prosecuted in the courts of
pirates. the country within whose territorial jurisdiction
they were committed, unless their commission
f. Foreign armies passing through or stationed in the affects the peace and security of the territory.
territory with the permission of the State
 Flag state shall have jurisdiction over all offenses
g. Warships and other public vessels of another State committed on board such vessels, except those
operated for non-commercial purpose which compromise the peace of the port.

13
 or non-living, of the seabed, the subsoil and the
English rule superjacent waters, as well as the production of
 The coastal state shall have jurisdiction over all energy from the water, currents and winds.
offenses committed on board such vessels,
except only where they do not compromise the NOTE: Other States shall have the freedom of
peace of the port. navigation and over-flight, to lay submarine cables and
pipes and other lawful causes.
 crimes perpetrated under such circumstances are
in general triable in the courts of the country f. Over the continental shelf
within territory they were committed.  coastal State enjoys here the right of exploitation
of oil deposits and other resources in the
NOTE: Of these two rules, it is the English Rule that is continental shelf.
applicable in this jurisdiction.
g. Over the high seas
[because at present the theories and jurisprudence  jurisdiction may be exercised by the State on the
prevailing in the United States on this matter are high seas over the ff:
authority in the Philippines which is now a territory of
the United States. (PP vs. Wong Cheng)] i. its vessels
 flag State has jurisdiction over its public vessels
b. Over archipelagic waters wherever they are and over its merchant vessels
 same rule with internal waters save for the on the high seas.
innocent passage of those merchant vessels
through archipelagic sea lanes.  Under UNCLOS, a vessel shall have the flag’s
nationality it flies provided that there is a genuine
c. Over the territorial sea link between the State and the vessel (that is the
 criminal jurisdiction: either English Rule and State must effectively exercise jurisdiction and
French Rule. control in administrative, technical and social
 Innocent passage and involuntary entrance are matters over the ship.
the recognized exceptions PROVIDED that in case of
involuntary entrance, the distress on the vessel must ii. Pirates
be real.  are the enemies of all mankind in which case
they may be captured by the vessels of any State
d. Over the contiguous zone on the open seas, to whose territory the pirates
 under the UNCLOS (UN Convention on the Law of may be brought to be tried and punished.
the Sea), the coastal State may exercise the
control necessary to prevent infringement of its iii. Those who are engaged in illicit traffic on drugs
customs, fiscal, immigration and sanitary and slave trade
regulations and punish the said infringement.  cooperation of all the States in order to suppress
this kind of acts
e. Over the exclusive economic zone  Same rule shall be applied to terrorists
 under the UNCLOS, the coastal State has
sovereign rights over the same for purposes of iv. In the exercise of the right to visit and search
exploring and exploiting, conserving and  Under the laws of neutrality, the public vessels or
managing the natural resources, whether living aircraft of a belligerent State may visit and search

14
 any neutral merchant vessel on the open seas jurisdiction is based on treaty or convention.
and capture it if found to be engaged in activities The latter principle is discredited.
favorable to the other belligerents. 5. Enjoyment of easement and servitudes.

v. “Hot pursuit Doctrine” The Rome Statute of the International Criminal Court
 here, an offense is committed by a foreign (ICC)
merchant vessel within the territorial waters of a  adopted in July 1998 via Conference of States in
coastal State (or if the latter has good reason to Rome
believe that the said offense had been  Has been ratified by over 100 states including our
committed), then the State’s vessels may pursue country, signed on December 28, 2000 and
the offending vessel into the open seas and upon ratified in the year 2011
capture, bring it back to its territory for  Shall be limited to the most serious crimes of
punishment. concern to the International community as a
whole
The “pursuit” must be:  Individual Liability: it is the individual and not the
State that is on trial.
1. Lawful;
2. Have begun before the offending vessel has left the Prior Tribunals:
territorial waters or the contiguous zone of the coastal 1. International Criminal Tribunal for Rwanda
State; 2. International Criminal Tribunal for the former
3. Continuous and unabated; and Yugoslavia or ICTY
4. It ceases as soon as the ship being pursued enters
the territorial sea of its own, or of a third State. General Concepts
1. Act of state doctrine
Jurisdiction over other territories (extra-territorial  every sovereign State is bound to respect the
jurisdiction) independence of every other sovereign State
 a State may extend its jurisdiction to territory not  A doctrine stating that each sovereign state has
within its sovereignty by virtue of customary or complete control over the laws within its own
conventional law in the following cases: (see page borders and that its acts cannot be questioned in
83) the courts of another state.

1. Assertion of Personal jurisdiction over its 2. Marten’s Clause

nationals abroad;  establishes an objective means of determining
2. By virtue of its relations with other States, as natural law: the dictates of the public conscience.
when it established a protectorate or a This makes the laws of armed conflict much
condominium, or administers trust territory, richer, and permits the participation of all States
or occupies enemy territory in the course of in its development. The powerful military States
war; have constantly opposed the influence of natural
3. Waiver of jurisdiction; law on the laws of armed conflict even though
4. Principle of exterritoriality - exemption of persons these same States relied on natural law for the
and things from the local jurisdiction on the basis of prosecutions at Nuremberg.
international custom.
As distinguished from principle of extra- 3. Doctrine of auto limitations
territoriality - wherein exemption from  Sovereignty is the property of the state-force due

15
 to which it has the exclusive capacity of legal self-
determination and self-restriction.
 Also known as the right of diplomatic in-
4. Right of angary tercourse, the right of legation refers to
 Angary is a right belligerent States enjoy in times the right of the State to send and re-
of war, or international armed conflict, to use or ceive diplomatic missions, which en-
destroy—in case of necessity and subject to ables States to carry on friendly inter-
indemnification—neutral property present in course. It is not a natural or inherent
their, or in occupied, territory, such as merchant right, but exists only by common con-
vessels and civil aircraft, their cars, or other sent.
objects.  No legal liability is incurred by the State
for refusing to send or receive diplo-
5. Yalta Formula matic representatives. Governed by the
VCDR (1961).
6. Principle of specialty
 Under the principle of specialty, which is codified
in numerous bilateral extradition treaties and
regional extradition schemes, an extradited
person shall not be proceeded against,
sentenced, detained, re-extradited to a third
State, or subjected to any other restriction of
personal liberty in the territory of the requesting
State for any offense committed before surrender
other than offense for which extradition was
granted or any other offense in respect of which
the requested State consents. Specialty serves as
a safeguard against prosecutions in the
requesting State for political offenses and
violations of other substantive rules of
extradition law, such as dual criminality and the
principle of ne bis in idem.

7. Postliminium
 describes the process of the legal effects of the
termination of belligerent occupation on the legal
acts of the occupant after the return of territory
to the original legal authority (see also
Occupation, Belligerent; Occupation, Military,
Termination of) and is derived from the Roman
law concept of ius postliminii.

8. Principle of chivalry

RIGHT OF LEGATION
16
17
Agents of Diplomatic Intercourse:

18
19
A. Head of State

20
 the embodiment of and represents the
sovereignty of the State, and enjoys the
right to special protection for his physi-
cal safety and the preservation of his
honor and reputation.

21
 His quarters, archives, property and
means of transportation are inviolate
under the principle of exterritoriality.

22
 He is immune from criminal and civil ju-
risdiction, except when he himself is the
plaintiff, and is not subject to tax or ex-
change or currency restrictions.

23
24
B. The Foreign Office
 the actual day-to-day conduct of foreign
affairs is usually entrusted to Foreign
office, headed by a Secretary or Minis-
ter, who, in proper cases, may make
binding declarations on behalf of his
government.

25
26
Establishment of Resident Missions Com-
posed of:

27
28
1. Head of Mission

29
i. Ambassadors or nuncios

30
ii. Envoys, ministers, and

31
Internuncios

32
iii. Charges d’affairs

33
34
2. Diplomatic Staff

35
3. Administrative and Technical Staff

36
4. Service Staff

37
38
D. The Diplomatic Corps

39
 the doyen or head of this body is usu-
ally the Papal Nuncio, if there is one, or
the oldest ambassador, or, in the ab-
sence of ambassadors, the oldest min-
ister plenipotentiary.

40
41
E. Appointment of Envoys

42
[Sec. 16, Art. VII, Cons] the President is the
one who appoints, sends, and instructs the
diplomatic and consular representatives,
and his prerogative to determine the as-
signment of the country’s diplomatic repre-
sentatives cannot be questioned.

43
44
NOTE: The appointment of diplomats is not

45
merely a matter of municipal law because
the receiving state has the right to refuse to
receive envoy of another State.

46
47
Persona non grata

48
 In international law and diplomatic us-
age, it means a person not acceptable
(for reasons peculiar to himself) to the
court or government to, which it is pro-
posed to accredit him in the character
of an ambassador or minister.

49
50
Agreation

51
 It is a practice of the States before ap-
pointing a particular individual to be the
chief of their diplomatic mission in order
to avoid possible embarrassment.

52
53
It consists of two acts:

54
1. The inquiry, usually informal, addressed
by the sending State to the receiving State

55
regarding the acceptability of an individual
to be its chief of mission; and

56
57
2. The agreement, also informal, by which
the receiving State indicates to the sending
State that such person, would be accept-
able.

58
59
Papers to be presented to receiving state:

60
61
1. Lettre de clearance

62
2. Diplomatic passport

63
3. Instructions

64
4. Cipher

65
66
Functions and Duties of diplomatic mis-
sion:

67
68
1. Represent sending state

69
2. Protect the nationals of sending state

70
3. Negotiate with the government

71
4. Ascertain, by all lawful means, the
conditions and developments in the re-
ceiving state, reporting these to the
sending state

72
5. Promote friendly relations between
the sending and receiving states, and
developing their economic, cultural, and
scientific relations.

73
74
Diplomatic immunity

75
  is essentially a political question
and the courts should refuse to look beyond
the determination by the executive branch.

76
77
1. Official staff - it is made up of the admin-
istrative and technical personnel of the mis-
sion, including those performing clerical
work, and the member of their respective
families; and,

78
79
2. Non-official staff - composed of the
household help, such as the domestic ser-
vants, butlers, and cooks and chauffeurs
employed by the mission.

80
 1. Any real action relating to private immov-
ables situated in the territory of the receiv-
NOTE: As a rule, however, domestic ser- ing State unless the envoy holds the prop-
vants enjoy immunities and privileges only erty in behalf of the sending State;
to the extent admitted by the receiving State 2. Actions relating to succession where
and insofar as they are connected with the per- diplomatic agent is involved as executor,
formance of their duties. administrator, heirs or legatee as a private
person and not on behalf of the sending
Privileges and immunities of diplomatic State; and,
Mission: 3. An action relating to any professional or
commercial activity exercised by the diplo-
1. Personal inviolability – Members of diplo- matic agent in the receiving State outside
matic mission shall not be liable for any his official functions.
form of arrest or imprisonment;
Modes of waiving diplomatic immunity and
2. Inviolability of premises – Premises, fur- privileges
nishings and means of transport shall be
immune from search, seizure, attachment 1. Expressly by the sending State; or,
or execution; 2. Impliedly, as when the person entitled to
the immunity from jurisdiction commences
3. Archives or documents shall be inviolable; litigation in the local courts and thereby
opens himself to any counterclaim directly
4. Diplomatic agents are immune from connected with the principal claim.
criminal, civil or administrative liability;
NOTE: Waiver of immunity from jurisdiction
5. Receiving State shall protect official com- with regard to civil and administrative pro-
munication and official correspondence of ceedings shall not be held to mean implied
diplomatic mission; waiver of the immunity with respect to the
execution of judgment, for which a separate
6. Receiving State shall ensure all mem- waiver shall be necessary.
bers of diplomatic mission freedom of move-
ment and travel; Exequatur
 An authorization from the receiving
7. A diplomatic agent is exempted to give State admitting the head of a consular
evidence as a witness; post to the exercise of his functions.
Thus, an appointee cannot start per-
8. Exemption from general duties and taxes forming his function unless the receiv-
including custom duties with certain excep- ing State issues an exequatur to him.
tions;

9. Use of flag and emblem of sending State

on premises of receiving State.

Exceptions:

81
82
Diplomats vs. Consuls

83
84
Diplomats

85
Consuls

86
They are concerned with political relations
of States.

87
They are not concerned with political mat-
ters and attend rather to administrative and

88
economic issues.

89
90
Kinds of consuls

91
1. Consules missi – Professional or career
consuls who are nationals of the sending
State and are required to devote their full
time to the discharge of their duties; and,

92
93
2. Consules electi – May or may not be na-
tionals of the sending State and perform
their consular functions only in addition to
their regular callings.

94
95
NOTE: Examples of regular callings include
acting as notary, civil registrar and similar
administrative capacities and protecting
and

96
assisting the nationals of the sending State.

97
98
Ranks of consuls

99
1. Consul-general – Heads several con-
sular

100
districts, or one exceptionally large consular

101
district;

102
2. Consul – Takes charge of a small district
or town or port;

103
3. Vicconsul – Assist the consul; and

104
4. Consular agent – Usually entrusted with
the performance of certain functions by the
consul.

105
106
Duties of consuls (P-Ob- Prom-Is-Su)

107
108
1. Protection of the interests of the sending
State and its nationals in the receiving
State;

109
2. Promotion of the commercial, economic,

110
cultural, and scientific relations of the send-
ing and receiving States;

111
3. Observation of the conditions and devel-
opments in the receiving State and report
the same to the sending State;

112
4. Issuance of passports and other travel doc-
uments to nationals of the sending State
and visas or appropriate documents to per-
sons wishing to travel to the sending State;
and,

113
5. Supervision and inspection of vessels and
aircraft of the sending State.

114
115
Sources of authority of consuls

116
1. Letter patent or letter ‘de provision –
Which is the commission issued by the
sending State, and

117
2. Exequatur – Which is the permission
given to them by the receiving State to per-
form their functions therein.

118
119
Immunity of Consuls

120
 Consuls enjoy their own immunities and
privileges but not to the same extent as
those enjoyed by the diplomats.

121
122
Like diplomats, consuls are entitled to:

123
1. Inviolability of their correspondence, ar-
chives and other documents;

124
2. Freedom of movement and travel;

125
3. Immunity from jurisdiction for acts

126
performed in their official capacity; and

127
4. Exemption from certain taxes and

128
customs duties.

129
130
Liabilities of Consuls

131
1. Arrest and punishment for grave of-
fenses; and

132
2. May be required to give testimony, sub-
ject to certain exceptions.

133
134
NOTE: Members of a consular post are un-
der no obligation to give evidence on the
following situations:

135
136
a. Concerning matters connected with the

137
exercise of their functions;

138
b. To produce official correspondence and

139
documents; and,

140
c. To give evidence as expert witness with

141
regard to the law of the sending State.

142
143
Immunity of consular offices

144
 They are immune only with respect to
that part where the consular work is be-
ing performed.

145
146
Differences in the privileges or immunities of
diplomatic envoys and consular officers from
the civil and criminal jurisdiction of the re-
ceiving State:

147
148
1. A diplomatic agent shall enjoy immunity
from the criminal jurisdiction of the receiv-
ing State. He shall also enjoy immunity
from its civil and administrative jurisdiction;
while

149
150
XPNs:

151
a. A real action relating to private immov-
able property situated in the territory of the
receiving State, unless he holds it on behalf
of the sending State for the purpose of the
mission;

152
153
b. An action relating to succession in which
the diplomatic agent is involved as execu-
tor, administrator, heir or legatee as private
person and not on behalf of the sending
State; and

154
155
c. An action relating to any professional or

156
commercial activity exercised by the diplo-
matic agent in the receiving State outside of
his official functions.

157
(Vienna Convention of Diplomatic Rela-
tions, Art. 31)

158
159
2. A consular officer does not enjoy immu-
nity from the criminal jurisdiction of the re-
ceiving State and are not amenable to the
jurisdiction of the judicial or administrative
authorities of the receiving State in respect
of acts performed in the exercise of con-
sular functions.

160
161
However, this does not apply in respect of a
civil action either:

162
163
1. Arising out of a contract concluded by a

164
consular officer in which he did not enter
expressly or impliedly; and

165
166
2. By a third party for damages arising from
an accident in the receiving State caused
by a vehicle, vessel or aircraft.

167
168
(Vienna Convention on the Consular Rela-
tions, Arts. 41 and 43)

169
170
Grounds for Termination of Consular Office
(2D-2W-RN)

171
172
1. Death of consular officer

173
2. Recall

174
3. Dismissal

175
4. Notification by the receiving State to the
sending State that it has ceased to
consider as member of the consular
staff

176
5. Withdrawal of his exequatur by the re-
ceiving State.

177
6. War – outbreak of war between his home

178
State and the receiving State.

179
180
DIPLOMATIC RELATIONS

181
182
Grounds for termination of diplomatic

183
relations under municipal law (RADAR)

184
185
1. Resignation;

186
2. Accomplishment of the purpose;

187
3. Death;

188
4. Abolition of the office; and

189
5. Removal.

190
191
Grounds for termination of diplomatic rela-
tion under international law

192
193
1. War – Outbreak between the sending
and the receiving State;

194
2. Extinction of either the sending State or
the receiving State; and

195
3. Recall – Demanded by the receiving
State when the foreign diplomat be-
comes persona non grata

196
197
Termination of diplomatic relations does not
terminate consular relations between the
sending and receiving States, Consuls be-
long to a class of State agents distinct from
that of diplomatic officers. They are not
clothed with diplomatic character and are
not accredited to the government of the
country where they exercised their consular
functions; they deal directly with local au-
thorities.

198
199
They do not represent their State in its rela-
tions with foreign States and are not inter-
mediaries through whom matters of State
are discussed between governments.

200
201
Consuls look mainly after the commercial
interest of their own State in the territory of
a foreign State.

202
203
RA No. 75, entitled “An Act to penalize acts
which would impair the proper observance
by the Republic and inhabitants of the
Philippines of the immunities, rights and
privileges of duly accredited foreign diplo-
matic and consular agents in the Philip-
pines”, exempts the person of any ambas-
sador or public minister of any foreign state
from criminal jurisdiction in the

204
Philippines.

205
NATIONALITY & STATELESSNESS

206
 laws of the second state whose nationality
he has acquired. 

Nationality 3. Repatriation
 it is the membership in a political com- - recovery of nationality by individuals who
munity with its concomitant or accom- were natural born citizen of a State, but
panying rights and duties who had lost their nationality.
 the status of belonging to a particular
nation. R.A. 8171
- governs the repatriation of Filipino women
Determination of a person’s nationality who have lost Filipino citizenship by reason
(The 1930 Hague Convention on Conflict of marriage to aliens
of Nationality Laws) - also includes repatriation of former natu-
a. It is for each State to determine under ral-born Filipinos who lost Filipino citizen-
its own law who are its nationals ship
b. Any question as to whether a person
possesses the nationality of a particular
State shall be determined in accor-
dance with the law of that State.
Acquisition of nationality (Modes) 4. Subjugation
1. Birth  when a State is defeated and its terri-
Jus sanguinis (by blood) tory is annexed, its national become
Jus soli (by place of birth) subjects of the winning state

2. Naturalization 5. Cession
- when a State ceded its territory to another
- may be accomplished through the ff: state, the people found in the ceded terri-
Marriage tory become subjects of the accepting
Legitimation state.
Option (Election)
Acquisition of Domicile Loss of Nationality (Modes)
Appointment to Government Office 1. Release - the State will give its citizens
Grant on Application the right to ask for release from their
nationality
Note: In the Philippines, it may be by: 2. Deprivation - e.g. Ph - deprives its citi-
(iii) judicial process zens of nationality upon entry into the
(iv) Legislative process military of anther State.
(v) Election 3. Renunciation - CA No. 63
(vi) marriage (1) By naturalization in a foreign coun-
try;
Doctrine of Indelible Allegiance – an indi-
vidual may be compelled to retain his origi- (2) By express renunciation of citizen-
nal nationality notwithstanding that he has ship;
already renounced or forfeited it under the

207
 (3) By subscribing to an oath of alle-
giance to support the constitution or laws of Resolution of Conflicts in Multiple Na-
a foreign country upon attaining twenty-one tionality Cases (The 1930 Hague Conven-
years of age or more; tion on Conflict of Nationality Laws)
a. A person having two or more nationali-
(4) By rendering services to, or accept- ties may be regarded as its national by
ing commission in, the armed forces of a each of the States whose nationality he
foreign country; possesses, and a State may not give
diplomatic protection to one of its na-
(5) By cancellation of the of the certifi- tionals against a State whose national-
cates of naturalization; ity that person possesses.
b. If a person has more than one national-
(6) By having been declared by compe- ity, he shall, within a third State, be
tent authority, a deserter of the Philip- treated as if he had only one; the third
pine armed forces in time of war, un- State shall recognize exclusively either
less subsequently, a plenary pardon or the nationality of the State in which he
amnesty has been granted; and is habitually and principally resident,
or the nationality of the State with
(7) In the case of a woman, upon her which he appears in fact to be most
marriage to a foreigner if, by virtue of closely connected (known as the prin-
the laws in force in her husband's coun- ciple of effective nationality or genuine
try, she acquires his nationality. link theory)
c. If a person, without any voluntary act of
4. Substitution - such as what happens his own, possesses double nationality,
when the former nationality is lost ipso he may renounce one of them with
facto by naturalization abroad. the permission of the State whose
nationality he wishes to surrender
Multiple Nationality and subject to the laws of the State
Where a person may find himself pos- concerned, such permission shall not
sessed of more than one nationality be- be refused if that person has his habit-
cause of the concurrent application to ual residence abroad
him of the municipal laws of two or more d. If a person is a national of both claimant
States claiming him as their national. State and a third State not involved in
This may arise by the concurrent appli- the claim, he shall be deemed a na-
cation of principle of (i) jus sanguinis tional of the claimant suit for pur-
and jus soli; (ii) naturalization without re- poses of that claim
nunciation of the original nationality; (iii)
legitimation; or (iv) legislative action. Corporate Nationality
Corporations are nationals of the State
Policy in the Philippines where they are incorporated.
“Dual allegiance of citizens is inimical to Thus, it is the State where they are in-
the national interest and shall be dealt corporated who can bring their claims
by law” (Sec. 5, Art. IV, Philippine Con- before an international tribunal, regard-
stitution) less of the nationality of the stockhold-

208
 ers as well as the percentage of shares (viii) Elementary education;
they own (ix) Public relief and assistance; and
(x) Labor legislation and social security.
Philippine Laws on Citizenship (Art. IV
of the Philippine Constitution)
1. Those who are citizens of the Philip-
- Also, the contracting parties agreed
pines at the time of the asoption of the thereto to accord Stateless persons law-
Constitution fully staying in their territory treatment as
2. Those whose fathers and mothers are favorable as possible and in any event,
citizens of the Philippines not less favorable than that accorded to
3. Those whose born January 17, 1973, of aliens generally in the same circum-
Filipino mothers, who elect Philippine stances, relative to:
citizenship upon reaching the age of (xi) acquisition of movable and immovable
majority property;
4. Those who are naturalized in accor- (xii)Right of association in non-political and
dance with the law non-profit making association adn trade
unions;
Effect of Marriage to a Foreigner (xiii) Gainful employment and practice of
Shall retain their citizenship unless by liberal professions;
their act or omission, they are deemed, (xiv) Housing and public education other
under the law, to have renounced it. that elementary education; and
(xv)Freedom of movement.
Statelessness
What is Statelessness?
 the status of having no nationality, as a
consequence of being born without any
nationality, or a result of deprivation or
loss of nationality.

Convention Relating to the Status of

Stateless Persons

- which the Philippines concluded

- Here, the contracting States agreed to

grant Stateless persons within their terri-
tories treatment at least as favorable as
that accorded to their nationals with re-
spect to:
(v) freedom to practice their religion and
freedom to religious education of their
children;
(vi) Access to the courts of law;
(vii)Rationing of products in short supply;

209
TREATY

210
211
212
 generally defined as agreements be-
tween and among States, by which par-
ties obligate themselves to act, or re-
frain from acting, according to the terms
of the treaty.

213
 Other terms used to designate interna-
tional agreements: convention, pact,
protocol, agreement, arrangement, ac-
cord, final act, general act, and ex-
change of notes.

214
 an agreement between States, includ-
ing international organizations of
States, intended to create legal rights
and obligations of the parties thereto. It
is the ubiquitous instrument through
which all kinds of international transac-
tions are conducted. It is the closest
analogy and legislation that interna-
tional has to offer.

215
216
Essential Characteristics of Treaties

217
1. It becomes binding on the parties to it by
virtue of their consent; and

218
219
 2. A rule contained in a treaty originally
2. While treaties will, in most cases, be writ- concluded between a limited number of
ten instruments concluded between States, parties may subsequently be accepted or
the term applies equally to unwritten agree- imitated as a general rule.
ments and to agreements between States
and international organizations and be- 3. A treaty may have evidential value as to
tween international organizations. the existence of a rule which has crystal-
lized into law by an independent process of
Two kinds of a treaty development.
1. Law-making treaties (normative treaties);
and
2. Treaty contracts

Law-making treaties or Normative Treaties

 Treaties which are concluded by a
large number of States for purposes of:
1. Declaring, confirming, or defining there
understanding of what the law is on a par-
ticular subject;
2. Stipulating or laying down new general
rules for future international conduct; and
3. Creating new international institutions. It
lays down rules of general or universal ap-
plication and are intended for future and
continuing observance.

Treaty Contracts
Resemble contracts in that they are con-
cluded to perform contractual rather than
normative functions. It usually concerns the
regulation of a narrow area of practice be-
tween two States (e.g. trade agreements).
Such treaties may lead to the formation of
general international law through the opera-
tion of the principles governing the develop-
ment of customary rules in the following
ways:

1. A series of treaties each of which lay

down similar rule may produce a rule of
customary international law to the same ef-
fect.

220
221
Modus Vivendi - Informal agreement be-
tween states, usually involving peace.

222
 - It is neither final nor permanent in na-
ture and is meant to be replaced by a more
permanent document later on.

223
224
Final Act - It is an instrument that records
the winding up conference proceedings.

225
226
Joint Communiqué - It is an issuance by
ministers to the press after the end of meet-
ing. Depending on the manner it was made
and the intent of the ones making it, a joint
communiqué may constitute an interna-
tional agreement.

227
STATE RESPONSIBILITY

228
229
 A state incurs international liability
when it commits an internationally
wrongful act or IWA.

230
Internationally wrongful act
 Exists when there is an act or omission
that is attributable to the state under in-
ternational law, and such conduct con-
stitutes a breach of an international
obligation of that state. [According to
the Articles on the Responsibility of
States for Internationally Wrongful Acts
or ASR].

231
232
Direct wrong - occurs when the conduct of
one state directly harms another state, such
as when it launches and invasion.

233
234
Indirect Wrong - occurs when the conduct
of one state ultimately harms another state.
An example of indirect wrong is when a
State harms foreign nationals. In such in-
stances, the direct wrong is towards the for-
eign nationals, but indirectly, harm is done
to the foreign state to which the nationals
belong.

235
236
Elements of state responsibility

237
1. An act or omission in violation of Interna-
tional Law;

238
2. Attributable to the State;

239
3. Causing damage to a third State either
directly or indirectly to a national of the third
State.

240
241
Kinds of state responsibility

242
1. Direct State responsibility – Where the in-
ternational delinquency was committed by
superior government officials or organs like
the chief of State or the national legislature,
liability will attach immediately as their acts
may not be effectively prevented or re-
versed under the constitution or laws of the
State.

243
244
2. Indirect State responsibility – Where the
offense is committed by inferior government
officials or by private individuals. The State
will be held liable only if, by reason of its in-
difference in preventing or punishing it, it
can be considered to have connived in ef-
fecting its commission.

245
246
Inapplicability of domestic laws

247
 Under article 3 of the ASR, when a
State commits an IWA, it may not es-
cape liability by claiming the legality of
their conduct under domestic law.

248
249
Intent

250
Objective theory - regardless of intent, the
commission of any act or omission that
leads to a violation of international law
would make the state liable.

251
252
Subjective theory - suggests that intent and
the degree of harm caused, if any, should
be considered when determining if a state
should be held liable.

253
254
Currently, majority of the international com-
munity subscribes to the objective theory
where an IWA can be committed even with
even absent intent or damage.

255
256
 the mob of or failed to take the appropriate
Criminal and Civil Liability - Except with the measures to prevent the mob from causing
regard to dealings with non-state entities, harm.
there appears to be no difference in the
treatment of criminal and civil liability at the Wanton Violence - even as it fights against and
state to state level. insurrectionary movement, the state may be
held liable if it launches military attacks
Categories of International Crime by the resulting in wanton and unnecessary damage.
International Law Commission or ICL (although,
not yet predominantly accepted by the Recognition of Belligerent Status - A state is
international community): not liable for losses suffered by foreign
nationals at the hands of insurrectionist
1. Unlawful use of force movements where the home state of such for a
2. violations of the right to self-determination national already recognized the belligerent
3. violations of human rights status of the insurrectionists.
4. violations of environmental laws
 REMEDIES
1. Satisfaction - this can be done in several
Actors in cases of State Responsibility: ways including a written apology, punishment
1. The state and its agents of individuals, and promises not to do the same
2. private persons and other entities conduct again.
3. Insurrectionists 2. Declaration - this denotes a judicial
declaration of wrongfulness.
Ultra Vires Acts 3. Injunctions - see: nuclear tests case where
 Pursuant to article 7 of the ASR, as long as the initial prayer was for an injunction against
the state organ or empowered entity is France.
acting in their official capacity, their acts 4. Restitutions - under article 35 of the 2001
may result in an IWA even if the exceeded Draft Articles of State Responsibility, this
their authority or contravened are there denotes on obligation to re-establish the
instructions. This is also meant to include situation which existed before the wrongful act
situations where the conduct of the entity was committed provided the same is not
falls within the scope of the apparent impossible or involves a burden out of all
authority. proportion to the benefits to be derived from
restitution when compared to compensation.
Insurrection Movement - Seeks to overthrow 5. Damages - these are limited to actual and
the government. As such, in terms of liability, quantifiable pecuniary damages.
the state itself only becomes liable for the acts
of the insurrection movement when such TREATMENT OF ALIENS
movement overthrows the government.
General Rule: An injury to the citizen is an
Angry mob - primarily seeks the protest issues injury to the State. Therefore, the State has the
in a violent manner. As for acts of an angry legal responsibility to protect citizens of other
mob, the state generally does not impair States coming to their jurisdiction, and a legal
liability unless it either supported the acts of interest in ensuring that their own citizen are

257
not harmed by the conduct of other States or i.e. Equality between nationals and aliens in
of foreign nationals. certain matters, such as in entitlements to due
process of law. But this privileges conferred
Sovereign Power of the State may be revoked, subject to treaty stipulations.
 flowing from its right to existence and as
an attribute of sovereignty, NO State is (i) International Minimum Standard
under obligation to admit aliens, thus, the  State must treat foreign nationals w/in
State can determine in what cases and their territory based on international
under what conditions it may admit aliens. minimum standards as agreed upon in
treaties and other conventions.
1. Power to regulate the entry and stay of aliens
and the State has the right to expel aliens from e.g. right to life, liberty, protection of
its territory through deportation and property and free access to the courts.
reconduction:
 Exists regardless how the State treats its
(i) deportation or expulsion - may be own nationals or citizens.
predicated on the ground that the stay of  Preferred by developed countries
the alien constitutes a menace to the
security of the State, that his entry was (ii) National Standard
illegal, or that the permission to stay has  State is not in violation of international law
expired, or that he has violated any as long as it treats foreign nationals in the
limitation or condition prescribed for his same way it treats its own nationals.
admission and continued stay.  Preferred by developing countries

(ii) reconduction - forcible conveying of (iii) Fundamental Human Rights

aliens back to their home. Thus, destitute  there is a move to come up with a list of
aliens, vagabonds, aliens without fundamental human rights which will serve
documents, alien criminals and the like, as the global minimum with regard to the
may be arrested and reconducted to the treatment of both foreigners and nationals.
frontier without any formalities. And the As of now, closest is the UN Declaration of
home State of such aliens has the Human Rights.
obligation to receive them.  However, States are still free to choose
between applying the international
2. The alien must accept the institutions of the minimum standard or the local standard
State as he finds them. Here, the alien may be when dealing with foreign nationals.
deprived of certain rights (political rights,
acquisition of land, etc.) However, local laws NOTE: Regardless of which standard, a
may grant him certain rights and privileges State may still prohibit foreign nationals
based on: from engaging in certain activities reserved
for citizens such as voting.
a.Reciprocity
b.Most favored-nation treatment State Responsibility and the Treatment of
c.National treatment Aliens
• a State is under obligation to make

258
“reparations” to another state for failure to -State is not liable
fulfill its primary obligation to afford, in
accordance with the international law, the Errors arise from bad faith
proper protection due to the alien national of -State is liable
the latter State.
2. The act or omission is directly or indirectly
•The State is liable for injuries and damages imputable to the State.
sustained by the alien while in the territory of  even when the laws of the State conform
the State if: to the international standard of justice, the
act or omission causing damage to the
1.The acts or omission constitutes an alien may be indirectly imputable to the
international delinquency. State if the latter does not make
 treatment of aliens should amount to (i) reasonable efforts to prevent injury to the
outrage; (ii) bad faith; (iii) willful neglect of alien, or having done so unsuccessfully,
duty; or (iv) insufficiency of governmental fails to repair such injury.
action, such that every reasonable and  the act or omission which will give rise to
impartial man would readily recognize its liability may either be:
insufficiency or inadequacy.
a. Acts of government officials
International Standard of Justice
 The standard of the “reasonable State,”  Head of state - ‘acts of State’, will
which means reasonable according to give rise to direct state
ordinary means and notions accepted in responsibility
modern civilization
 High administrative officials - within
 execution of an alien without trial is the sense of their authority, are also
considered as falling below the acts of State which would give rise to
international standard of justice. liability.
- Where the officer acts beyond
Equal Treatment the scope of his authority, his act is
 Where the laws of the state fall below the likened to an act of a private
international standard, it is no defense that individual.
such laws are applicable only to aliens but
to nationals, as well.  Minor or subordinate official - to give
rise to liability, there must be a denial
 In such a case, the doctrine of equality of of justice or something which indicates
treatment does not apply. complicity of the state in or
condonation of, the original wrongful
 However, the doctrine of equality of act, such as an omission to take
treatment will apply where the national disciplinary action against the
standard is higher than the international wrongdoer.
standard.
b. Acts of private individuals - for the state
Errors arise from Mere deficiencies to be held responsible, it must be shown that

259
there was actual or tacit complicity of the 1. Exhaustion of Local Remedies
government in the act, before or after said act  an alien must first exhaust all available
transpired, either by directly ratifying or local remedies for the protection or
approving it, or in the patent or manifest vindication of his rights
negligence in taking measures to prevent injury,
investigate the case, punish the guilty, or the  the State must be given an opportunity to
enable the victim to pursue his civil remedies do justice in its own regular way and
against offender. without unwarranted interference with its
sovereignty by other States.
3. There is injury to the claimant State
indirectly because of damage to its national  As such, diplomatic protection does not
generally come into play for as long as
State Responsibility and Expropriation exhaustion has not yet taken place

1. Compensation Other reasons:

 there can be no valid expropriation without  it avoids multiplication of claims and allows
payment of just compensation the most suitable court, in terms or
practicality, to take a first look at the
Formulas in computing compensation (still dispute.
under on-going debate)
Exceptions:
a. Hull Formula
 named after Cordell Hull, the creator (i) if there are no remedies to exhaust (as
who was the Secretary of State during the where the laws are intrinsically defective); or
World War (ii)where the courts are corrupt; or
 the formula essentially provides that (iii)where there is no adequate machinery for
compensation should be adequate, effective the administration of justice; or
and prompt (APE) (iv)where the international delinquency results
from an “act of State.”
b. Adequate Compensation
 simply takes into consideration the fair The Calvo Clause
market value of the property  a stipulation by which an alien waives or
restricts his right to appeal to his own State
2. Indirect Expropriation in connection with any claim arising from
 also known as disguised expropriation the contract; and
 Occurs when the State subjects the
property to restrictions that ultimately  The alien agrees to limit himself to the
amount to an expropriation. remedies available under the laws of the
local State.
Example is subjecting private property to
indefinite governmental control NOTE: This cannot be interpreted to deprive
the alien’s State of the right to protect or
ENFORCEMENT OF ALIEN’S CLAIM vindicate his interests in case they are injured in
another State, as such waiver can legally be

260
made not by alien but by his own State. request of the other State on the basis of
an extradition treaty. In Deportation, it is
2. Resort to Diplomatic Protection the expulsion of an alien who is considered
 after the alien has exhausted all available undesirable by the local State, usually but
local remedies without success, he must not necessarily to his own State.
avail himself of the assistance of his State.
Extradition is not unilateral - while deportation
 Here, the tie of nationality must exist from is a unilateral act of the local State pursuant to
the time of the injury until the time the its own interest, extradition is not, considering
international claim is finally settled. that it requires the transfer of an individual
from the sending State to the requesting State
 The UN may file a diplomatic claim on on the basis of a treaty obligation.
behalf of its officials.
Executive Fiat - despite extradition proceedings
3. Modes of Enforcement of Claims commonly taking place in a court of law, they
 through negotiation, if negotiation fails, are ultimately characterized as administrative
any of the other methods of settling proceedings, as such, the only question
disputes, like: (i) good offices; (ii) involved is whether to extradite or not.
arbitration; or (iii) judicial settlement.

 When the responsibility of the State is Head of the Executive Department

established, the duty to make reparation  is the ultimate decision maker with regard
will arise. to whether or not to extradite.
 Regardless of the outcome of the
 Reparation may take the form of: proceeding, the head of the executive
(a) restitution, or where this is not department may still reverse the same.
possible;
(b) satisfaction; or Fundamental Principles of Extradition
(c) compensation, or all three of these a. Based on consent
together. (i) as expressed in treaty; or
(ii) manifested as an act of goodwill.
EXTRADITION
 the surrender of a person by one State to b. Principle of Specialty
another State where he is wanted for  a fugitive who is extradited may be tried
prosecution, or if already convicted, for only for the crime specified in the request
punishment. for extradition and included in the list of
offenses in the extradition treaty.
Basis of Extradition: a treaty. In the absence of  the State of refuge has the right to object
a treaty, the local State may grant asylum to the to a violation of this principle.
fugitive, or if the surrender is made, the same is
merely a gesture of comity. “Non-list” types of extradition treaties:
offenses punishable under the law of both
Distinguished from Deportation: State by imprisonment of one year or more are
 In Extradition, the surrender is made at the included among the extraditable offenses.

261
 to its own laws. If there is, a warrant of
c. Any person may be extradited - whether surrender will be drawn and fugitive delivered
national of the requesting State or the State of to the State of refuge.
the refuge or of another State.
Due Process in Extradition
d. Political and religious offenders are generally Secretary of Jusice v. Lantion: WON notice and
not subject to extradition. hearing are essential during the evaluation
stage of the proceedings.
(i) in order to constitute an offense of a political
character, there must be two or more parties in Ruling: There is no provision in the RP-US
the State, each seeking to impose the Extradition Treaty that gives the right to
government of their own choice on the other. demand copies of the extradition requests. The
likening of an extradition to a criminal
(ii) Attentat clause - it is not a political offense procedure is not persuasive because an
to murder or to make an attempt at the life of extradition is sui generis (Latin for of its own
the head of a state, or a member of his family, kind, and used to describe a form of legal
or sometimes, a member of the government. protection that exists outside typical legal
Neither is genocide. protections -- that is, something that is unique
or different.) and does not involve the
e. In the absence of special agreement, the determination of guilt, do not trigger the
offense must have been committed within the application of the rights of the accused.
territory or against the interest of the
demanding State. Bail in Extradition Cases
 a court may grant bail after the
f. Rule of Double Criminality - which stipulates determination by the court that (1) he/she
that the alleged crime for which extradition is is not a flight risk, and (2) there exist
being sought must be punishable in both the special, humanitarian and compelling
requesting and the requested States. circumstances. (Rodriguez v. Judge)

Procedure for Extradition  Lately, the Court overturns stare decisis in

favor of the growing importance of the
1. Request individual person in PIL, who has attained
 accompanied by the necessary papers global recognition, the higher value being
relative to the identity of the wanted given to human rights in the international
person and the crime alleged to have been sphere.
committed or of which he has already been
convicted.  If bail can be granted in deportation
 made through diplomatic channels to the proceedings, there is no justification not to
State of refuge. allow it for extradition cases because both
are administrative proceedings where the
2. Upon receipt of the request, State of refuge innocence or guilt of the parties is not in
will conduct a judicial investigation to ascertain issue. [Government of Hongkong vs. Hon.
if the crime is covered by a treaty and if there is Felixberto T. Olalia]
prima facie case against the fugitive according

262
 However, The standard to be used in justified by established usage. May depend
granting bail in extradition cases should be on the liberal attitude of the receiving
"clear and convincing evidence" which is state, on grounds of “territorial
lower than proof beyond reasonable doubt supremacy.”
but higher than preponderance of
evidence. 2. Diplomatic Asylum
 granted when the State provides asylum in
RP’s Extradition Treaties with: the embassies, foreign legations and
 Indonesia consular premises.
 Australia  granted only if stipulated in the treaty, or
 Canada were established usage allows it, but within
 Switzerland "narrowest limits" or when the life or
 USA liberty of the person is threatened by
imminent violence.
Letters Rogatory
 documents making a request through Has not been recognized as a right because it is
a foreign court for the obtaining of information often believed that it interferes with the
or evidence from a specified person within the sovereign power of the host country over its
jurisdiction of that court. territory, except:
 A formal communication from a court
in which an action is pending, to a foreign (i) individuals are in physical danger
court, requesting that the testimony of a (ii) in case of binding custom locally
witness residing in such foreign jurisdiction be (iii) in case of special treaty
taken under the direction of the court,
addressed and transmitted to the court making Rule in the Philippines on Asylum
the request.  Diplomatic asylum cannot be granted
 Section 12, Rule 24 of the Rules of except to members of the official or
Court, provides that the power to issue "letters personal household of diplomatic
rogatory" is inherent in the courts of justice. representatives.
 On humanitarian grounds, refuge may be
Asylum granted to fugitives whose lives are in
 the power of the State to allow an alien imminent danger.
who has sought refuge from prosecution or
persecution to remain within the territory Refugees
and under its protection.  Any person who is outside the country of
 This is never been recognized as a principle his nationality, or the country of his former
of international law. habitual residence, because he has or had
well-founded fear of persecution by reason
Principles on Asylum of his race, religion, nationality,
membership of a political group or political
1. Territorial Asylum opinion and is unable or, because of such
 granted when the State provides asylum to fear, is unwilling to avail himself of the
asylee within its territory. protection of the government of the
 Exists only when stipulated in a treaty or country of his nationality, or if he has no

263
 nationality, to return to the country of his LAND TERRITORY
former habitual residence.
1. DISCOVERY AND OCCUPATION
Essential Elements before one may be  Original mode of the acquisition by which
considered as a refugee (ONPer) : territory not belonging to any State (terra
nullius) is placed under the sovereignty of
1. The person is Outside the country of his the discovering state.
nationality, or in the case of Stateless persons,
outside the country of habitual residence;  Territory need not be to be uninhabited
2. The person lacks National protection; and provided it can be established that the
3. The person fears Persecution in his own natives are not sufficiently civilized and can
country. be considered as possessing not rights of
sovereignty but only rights of habitation.
Other points on refugees:
 a refugee is treated as a Stateless  Open seas and outer space are not
individual, which he is either de jure or de susceptible to discovery and occupation.
facto.
2 REQUISITES OF A VALID DISCOVERY AND
The Refugee Convention of 1959 does not deal OCCUPATION
with admission, but with non-refoulement; that 1.Possession
no contracting state shall expel or return a 2.Administration
refugee in any manner, whatsoever, to the
frontiers of territories where his life or freedom  Possession must be claimed on behalf of
is threatened. The State is under the obligation the state. Be effected through a formal
to grant temporary asylum to refugees. proclamation and the symbolic act of
raising the national flag in the territory.
RIGHT TO TERRIRORIAL INTEGRITY
 Mere possession will not suffice.

INCHOATE TITLE OF DISCOVERY

The national territory comprises the Philippine  Performs the function of barring other
archipelago, with all the islands and waters states from entering the territory until the
embraced therein, and all other territories over lapse of a period within which the
which the Philippines has sovereignty or discovering state may establish as
jurisdiction, consisting of its terrestrial, fluvial settlement thereon and commence to
and aerial domains, including its territorial sea, administer it.
the seabed, the subsoil, the insular shelves, and 2. PRESCRIPTION
other submarine areas. The waters around,  Prescription in international law requires
between, and connecting the islands of the long continued and adverse possession to
archipelago, regardless of their breadth and vest acquisitive title in the claimant.
dimensions, form part of the internal waters of
the Philippines. Grotius doctrine of immemorial prescription -
(Art. I, 1987 Constitution) speaks of uninterrupted possession going
beyond memory.

264
 STIMSON DOCTRINE
WESTERN SAHARA OPINION - territory  forbids recognition of any government set
occupied by tries in the Western Sahara is not up through external aggression, conquest
terra nullius but is considered territory of those was not considered a valid mode of
tribes. The main consideration was that the acquiring territory.
tribes, though not actual States, had social and
political organizations and were guided by SUBJUGATION
authority figures in the form of chiefs.  Territory is deemed acquired by
subjugation when, having been previously
3. CESSION conquered or occupied in the course of
war by the enemy, it is formally annexed to
A. Voluntary it at the end of that war.
 (by treaty) Method by which territory
is transferred from one state to another by  Conquest alone confers only an inchoate
agreement between them. Acquisition of right on the occupying state; it is the
territory by cession is usually effected by such formal act of annexation that completes
familiar transactions as sale, donation, barter the acquisition.
or exchange, and even by testamentary
disposition. 5. ACCRETION
 Examples are the purchase by the US  Mode of acquiring territory based on the
of Alaska from Russia in 1867, the gift by principle of accession cedat principali. It is
Austria of Lombardy to France in 1859, the accomplished through both natural or
donation of Sabah by Borneo to the Sultan of artificial processes, as by the gradual and
Sulu imperceptible deposit of soil on the coasts
of the country through the action of the
B. Involuntary or forced water or, more effectively, by reclamation
 Example is the treaty entered into by projects like those undertaken in Manila
the US and Spain after the Spanish-American Bay and the polders of Holland.
war, although the treaty was denominated one
of sale, whereby Spain ceded Philippines, Contemporary Standards - with regard to
Puerto Rico, Marianas, and Guam to the US for sovereignty over territory, current international
$20M. standards place a premium on effective
occupation, consent, and the right to self-
determination.
4. CONQUEST
 Mode of acquisition that is no longer Consent
recognized, inasmuch as the UN Charter  generally meant to denote other States
prohibits resort to threat the use of force relinquishing their claim over a given
against the territorial integrity or political territory in favor of another State.
independence of any State.  may also be meant to mean consent of the
international community to a State’s taking
 Example is the annexation of Kuwait by over a territory, silence is an implied
Iraq. consent.

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Uti Possidetis Juris was opened for signature on December 10,
 (Latin for "as you possess under law") is a 1982 at Montego Bay, Jamaica. It was
principle of international law which ratified by the Philippines in 1984 but came
provides that newly-formed sovereign into force on November 16, 1994 upon the
states should retain the internal borders submission of the 60th ratification. The
that their preceding dependent area had UNCLOS gives to the coastal State
before their independence. sovereign rights in varying degrees over the
different zones of the sea which are:
 akin to freezing title over territory or
maintaining the status quo over territory, 1) internal waters,
which creates a photograph of the territory 2) territorial sea,
[Frontier Dispute Case between Burkina 3) contiguous zone,
Faso and Mali] 4) exclusive economic zone, and
5) the high seas.
Shared sovereignty
 it is possible to have a shared sovereignty  It also gives coastal States more or less
or partial sovereignty between states over jurisdiction over foreign vessels depending
the same area. on where the vessel is located. Insofar as
the internal waters and territorial sea is
MARITIME TERRITORY concerned, the Coastal State exercises
sovereignty, subject to the UNCLOS and
 Bodies of water within the land mass and other rules of international law. Such
the waters adjacent to the coasts of the sovereignty extends to the air space over
state up to a specified limit. the territorial sea as well as to its bed and
subsoil. (Arigo v. Swift, ibid..)
International Law of the Sea (ILS)
 A body of treaty rules amid customary Mare Liberum Principle or Free Sea or
norms governing the uses of the sea, the Freedom of the Sea
exploitation of its resources, and the  It means international waters are free to all
exercise of jurisdiction over maritime nations and belongs to none of them.
regimes. It is a branch of public
international law, regulating the relations Internal (National) Waters:
of states with respect to the uses of the
oceans. RIVERS MAY BE CLASSIFIED INTO:

United Nations Convention on the Law of the 1. National Rivers – situated completely in the
Sea (UNCLOS) territory of one state.
 A treaty that defines the rights and
obligations of nations in their use of the 2. Multi-national Rivers – Flow through the
world’s oceans, establishing rules for territories of several states.
business, the environment, and the
management of marine natural resources. 3. International Rivers – is navigable from the
open sea and is open to the use of vessels from
 The UNCLOS is a multilateral treaty which all states, flows through various states.

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 baselines. This broad term is meant to
4. Boundary Rivers – divided the territories of include the territorial sea, the continental
the riparian states. shelf, and other maritime zones which are
afforded a State but do not qualify as
THALWEG DOCTRINE internal waters.
 for boundary rivers, in the absence of a
specific agreement between riparian THE TERRITORIAL SEA
states, the boundary line is laid on the  Belt of waters adjacent to the coasts of the
river. That is, on the center, not of the river state, excluding the internal waters in bays
itself, but of its main channel. and gulfs, over which the state claims
sovereignty and jurisdiction.
MIDDLE OF THE BRIDGE DOCTRINE
 where there is a bridge over a boundary  The area of water 12 nautical miles
river, the boundary line is laid on the seaward from its allowed baseline. All
middle or center of the bridge. landward waters prior to the baseline from
which the 12 nautical miles of the
BAYS territorial sea begins are considered as
 Well-marked indentation whose internal waters. The coastal state exercises
penetration is in such proportion to the a full sovereignty over its territorial sea, as
width of its mouth as to contain land- well as the air space above it, and the
locked waters and constitute more than a seabed and subsoil beneath it.
mere curvature of the coast.
THE PHILIPPINE TERRITORIAL SEA
HISTORIC BAY  The claim of the Philippines to its territorial
 one whose waters are considered internal sea was based on historic right or title or as
because of the existence of a historic title. it often called, the TREATY LIMITS THEORY.
(Hudson Bay in Canada)
METHODS OF DEFINING THE TERRITORIAL SEA
STRAITS
 narrow passageways connecting two Baseline - following the UNCLOS, they are
bodies of water. If the distance between drawn from the low watermark of the coast.
the two opposite coasts is not more than Currently there are two recognized ways of
six miles, they are considered internal growing the baselines of the coastal state,
waters. namely:

CANALS 1. NORMAL BASELINE METHOD

 the most famous are the Suez Canal, which  The territorial sea is simply drawn from the
is neutralized, and the Panama Canal, low-water mark of the coast, to the
which is open to everyone in times of war breadth claimed, following its sinuosities
or peace. and curvatures but excluding the internal
waters in bays and gulfs.
External Waters  actual contours of the coast.
 in contrast to internal waters, these are all
waters extending towards the sea from 2. STRAIGHT BASELINE METHOD

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 Straight lines are made to connect archipelagic baselines, regardless of their
appropriate points on the coast without depth or distance from the coast. [UNCLOS,
departing radically from its general Art. 49(1)]
direction.
 do not follow the actual contours of the Rights by which archipelagic waters are
coast but connect the outer most points in subject to:
the coast line with each other in straight
lines. 1. Rights under existing agreement on the part
of the third states should be respected
ARCHIPELAGIC STATES [UNCLOS, Art. 51(1)];
2. The traditional fishing rights and other
Archipelago legitimate activities of the immediately
 It means a group of islands, including parts adjacent neighboring States (Ibid); and
of islands, interconnecting waters and 3. Existing submarine cables laid by other States
other natural features which are so closely and “passing through its waters without making
interrelated that such islands, waters and a windfall” as well as the maintenance and
other natural features form an intrinsic replacement of such cables upon being notified
geographical, economic and political entity, of their location and the intention to repair or
or which historically have been regarded as replace them. [UNCLOS, Art. 51(2)]
such. (UNCLOS, Art. 46)
Archipelagic State Applicability of the right of innocent passage
 A state constituted wholly by one or more in archipelagic waters
archipelagos and may include other
islands. (UNCLOS, Art. 46) GR: As a rule, ships (not aircraft) of all States
enjoy the right of innocent passage through the
Archipelagic Doctrine territorial sea, and not through the internal
 Art. I, Sec. 1 of the 1987 Constitution waters. It is understood, however, that the
adopts the archipelagic doctrine. It passage must be continuous and expeditious,
provides that the national territory of the except in cases of force majeure.
Philippines includes the Philippine [UNCLOS, Art. 52(1)]
archipelago, with all the islands and waters
embraced therein; and the waters around,  Submarines and other underwater craft are
between and connecting the islands of the required to navigate on the surface and the
archipelago, regardless of their breadth show their flag. Violation of the rights of
and dimensions form part of the internal innocent passage will be grounds to hold a
waters of the Philippines. state liable.

 It emphasizes the unity of land and waters XPN: Right of Innocent Passage may be
by defining an archipelago either as a suspended in some areas of its archipelagic
group of islands surrounded by waters or a waters. But such suspension must be:
body of water studded with islands.
1. The suspension is made without
Archipelagic waters discrimination in form or in fact among
 these are waters enclosed by the foreign ships;

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2. Suspension is merely temporary; sinuousness and curvatures but excluding the
3. It must specify the areas of its archipelagic internal waters in the bays and gulfs (UNCLOS,
waters where innocent passage shall not be Art. 5); and
allowed;
4. Such suspension is essential for the 2. Straight baseline method – Where the
protection of its security; and coastline is deeply indented and cut into, or if
5. Such suspension shall take effect only there is a fringe of islands along the coast in its
after having been duly published. immediate vicinity, the method of straight
[UNCLOS, Art. 52 (2)] baselines joining appropriate points may be
employed in drawing the baseline from which
TERRITORIAL SEA the breadth of the territorial sea is measure.
(UNCLOS, Art. 7)
Breadth of The Territorial Sea
 Every State has the right to establish the NOTE: The Philippines uses this method in
breadth of the territorial sea up to a limit drawing baselines.
not exceeding 12 nautical miles, measured Sovereignty over the territorial sea
from baselines (UNCLOS, Art. 3).  Coastal states exercise sovereignty over
Territorial sea and it extends to the
Outer Limit of The Territorial Sea airspace over the territorial sea and to its
 It is the line every point of which is at a seabed and subsoil.
distance from the nearest point of the
baseline equal to the breadth of the NOTE: The sovereignty over the territorial sea is
territorial sea. (UNCLOS, Art. 4) subject to the right of innocent passage on the
part of ships of all states.
Territorial sea vs. Internal waters of the
Philippines CONTIGUOUS ZONE
 It is the zone adjacent to the territorial sea,
TERRITORIAL SEA INTERNAL WATERS which the coastal State may exercise such
Defined by historic Defined by the control as is necessary to:
right or treaty limits archipelago doctrine 1. Prevent infringement of its customs,
As defined in the Outermost points of fiscal, immigration, or sanitary laws
Convention on the our archipelagowhich within its territory or its territorial sea; or
Law of the Sea, has a are connected with 2. Punish such infringement.
uniform breadth of 12 baselines and all waters
miles measured from comprised therein.  It is the area of water not exceeding 24
the lower water mark nautical miles from the baseline. It thus
of the coast extends 12 nautical miles from the edge of
the territorial sea. The Coastal State
Methods used in defining territorial sea exercises authority over that area to the
extent necessary to prevent infringement
1. Normal baseline method – The territorial sea of its customs, fiscal, immigration or
is simply drawn from the low-water mark of the sanitation authority over its territorial
coast, to the breadth claimed, following its waters or territory to punish such
infringement.

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 (Article 33, 1 & 2) transit passage.

 Contiguous zone does not automatically EXCLUSIVE ECONOMIC ZONE

belong to the territory of the coastal state.  It gives the coastal State sovereign rights
The coastal state must make a claim to its overall economic resources of the sea, sea-
Contiguous Zone for pertinent rights to bed and subsoil in an area extending not
exist. Art. 33 of the UNCLOS speaks in more than 200 nautical miles beyond the
permissive terms, i.e., “the coastal state baseline from which the territorial sea is
may exercise the control necessary” for measured. (UNCLOS, Articles. 55 & 57)
definite purposes.
NOTE: The provisions on the exclusive
Extent of the Contiguous Zone economic zone are both a grant of right to and
 The coastal State may not extend its imposition of obligations on coastal states
Contiguous Zone beyond the 24 nautical relative to the exploitation, management, and
miles from the baseline (from which the preservation of the resources found within the
breadth of the territorial sea is measured). zone.
[UNCLOS, Art. 33 (2)]
Rights of the coastal state in the EEZ
Right of transit passage 1. Sovereign rights;
 It is the right to exercise freedom of a. For the purpose of exploring and
navigation and overflight solely for the exploiting, conserving and managing the
purpose of continuous and expeditious living and non-living resources in the super
transit through the straits used for adjacent waters of the sea-bed and the
international navigation, i.e., between two resources of the sea-bed and subsoil; and
areas of the high seas or between two
exclusive economic zones. b. With respect to the other activities for
the economic exploitation and exploration
 The requirement of continuous and of the EEZ, such as production of energy
expeditious transit does not preclude from water, currents and winds;
passage through the strait for the purpose
of entering, leaving or returning from a 2. Jurisdictional rights;
State bordering the strait, subject to the a. With respect to establishment and use
conditions of entry to that State. [UNCLOS, of artificial islands;
Art. 38(2)] b. As to protection and preservation of
the marine environment; and
NOTE: The right of transit passage is not c. Over marine scientific research
applicable if there exists seaward of the island a
route through the high seas or through an 3. Other rights and duties provided for in the
exclusive economic zone of similar convenience Law of the Sea Convention (Law of the Sea
with respect to navigational and hydrographical Convention, Art. 56).
characteristics. [UNCLOS, Art. 38(1)]
NOTE: The coastal State has no sovereignty
 Vessels entitled to right of transit passage. over the EEZ. What the coastal State only has
All ships and aircraft enjoy the right of are sovereign rights, jurisdictional rights, and

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other rights under the Law of the Sea
Convention.The coastal state may inspect and NOTE: This is open to all States and shall be
arrest ship’s crew in its EEZ. exercised with due regard for the interests of
other States in their exercise of the freedom of
The coastal State may board, and inspect a the high seas. [UNCLOS, Art. 87(2)]
ship, arrest a ship and its crew and institute
judicial proceedings against them. Arrested THE AERIAL DOMAIN
vessels and their crews may be required to post  The airspace above the terrestrial domain
reasonable bond or any other form of security. and the maritime and fluvial domain of the
However, they must be promptly released upon state, to an unlimited altitude but not
posting of bond. including outer space.

In the absence of agreement to the contrary by CHICAGO CONVENTION (International

the States concerned, UNCLOS does not allow Convention on Civil Aviation) - the contracting
imprisonment or any other form of corporal parties recognize that every State has complete
punishment. However, in cases of arrest and and exclusive sovereignty over the air space
detention of foreign vessels, it shall promptly above its territory (land, internal and external
notify the flag state of the action taken. Primary waters, territorial sea. But this shall not include
obligations of coastal states over the EEZ. outer space, which is considered as res
communes. Other states have no right of
THE OPEN OR HIGH SEAS innocent passage over the air territory of
 The waters, which do not constitute the another State.
internal waters, archipelagic waters,
territorial sea and exclusive economic zone - shall only apply to civil aircraft and not State
of a state. They are beyond the jurisdiction aircraft (used in military, customs, and police
and sovereign rights of states. (UNCLOS, services)
Art. 86)
- there shall be authorization by special
 It is treated as res communes or res nullius, agreement or otherwise, and in accordance
and thus, are not part of the territory of a with the terms thereof.
particular State. (UNCLOS, Art. 89)
Art. 16 - power to search, right without
Freedoms on the high seas unreasonable delay, to search aircraft of the
These are the freedom of: (NOLAFS) other contracting States on lading and
departure, and to inspect the certificates and
1. Navigation; other documents prescribed in the Chicago
2. Overflight; Convention.
3. To lay submarine cables and pipelines;
4. To construct artificial islands and other Art. 17 - the aircraft carries the nationality of
installations permitted under international the State where it is registered.
law;
5. Fishing; and Five Freedoms of Air Transportation for
6. Scientific research. (UNCLOS, Art. 87[1] in scheduled international services:
relation to Art. 90)

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1.Fly across the territory without landing; especially where the delay is due to a refusal to
2.Land for non-traffic purposes; negotiate by the other party.
3.Land to put down passenger, mail and cargo; c. Stipulations - if parties wish to enter into
4.Land to take passenger, mail and cargo; agreements whereby they will not resort to
5.To put down passenger, mail and cargo from judicial proceedings unless they have both had
these territories. an opportunity to negotiate, the same will be
valid.
OUTER SPACE - the rules governing the high
seas apply also to outer space, which is 2. Enquiry -ascertainment of the pertinent facts
considered as res communes. and issues in a dispute.

INTERNATIONAL DISPUTE Function: meant to facilitate a solution for

SETTLEMENT disputes involving neither honor nor vital
interests by elucidating facts by means of an
impartial and conscientious investigation.
International Dispute
 An actual disagreement between states 3. Tender of Good Offices - where a third-party,
regarding the conduct to be taken by one either alone or in collaboration with others,
of them for the protection or vindication of offers to help in the settlement of a dispute.
the interests of the other. A situation is the When the offer is accepted, there is supposed
initial stage of a dispute. to be an "exercise of good offices."

Pacific or Amicable Modes 4. Mediation - a third-party offers to help with

 Article 3 of the UN charter provides that a solution, usually based on a compromise.
the parties to any dispute, the continuance Distinguished from good offices in that
of which is likely to endanger the mediation offers a solution; good offices merely
maintenance of international peace and bring the parties together. Proposals made by
security, shall, first of all, seek a solution by mediators are not binding.
negotiation, enquiry, mediation,
conciliation, arbitration, judicial Mediator it can be an individual, group of
settlement, resort to regional agencies or individuals, or even a state.
arrangements, or other peaceful means of
their own choice. 5. Conciliation - active participation of a third-
party, whose services are solicited by the
1. Negotiation - Process by which states settle disputants, in the effort to settle the conflict,
their differences through an exchange of views but the conciliator’s recommendations are not
between diplomatic agencies. binding.

a. Exhaustion - there is no requirement 6. Arbitration - the solution of a dispute by an

under international law for states to exhaust all impartial third party, usually a tribunal created
possible negotiations before bringing a dispute by the parties themselves under a charter
before a tribunal. known as compromise.
b. Delays - the obligation to negotiate
should not work to delay legal proceedings Lex Loci Arbitri

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  This is the law of the state government
arbitration proceedings that take place within
the states restrictions

 Purpose: meant as a form of respect to

the state in which the proceedings are taking
place. This is because while it is recognized that
arbitration proceedings are private by nature,
the state nevertheless has an interest in
ensuring that all procedures occurring within
it's jurisdiction are both fair and just.

Applicable Law - Generally, the parties are free

to choose what law shall be used to resolve the
issues of the dispute.

Stabilization clause - given that the choice of

law may lead to abuse and absurdity, parties
often employ stabilization clause which
provides that the applicable law shall be a
specific law as is in effect on a certain date.

Doctrine of Inter-Temporal Law

 this doctrine provides that the existence of
a right should not only be based on the
standards when the law was first made but
also on contemporary standards.

Truncated Tribunals
 As opposed to tribunals which were in
invalidly constituted from the start,
truncated tribunals are validly constituted
tribunals which, during the course of the
proceedings are reduced in number.

United Nations Commission on international

Trade Law (UNCITRAL)
 it is a body established in 1966 by the
United Nations General Assembly to
promote the progressive harmonization
and unification of international trade law.


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