Pil - Up

U.P.
LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
PUBLIC INTERNATIONAL
LAW
POLITICAL LAW
Page 390 of 439

U.P. LAW BOC POLITICAL LAW
E. ORGANIZATION AND REGULATION OF 1. Concept ................................................. 168

CORPORATIONS, PRIVATE AND PUBLIC........... 111 2. Just Compensation ............................... 170
F. MONOPOLIES, RESTRAINT OF TRADE AND UNFAIR 3. Abandonment of Intended Use and Right of
COMPETITION .............................................. 111 Repurchase ........................................... 171
4. Expropriation by local government units 171
SOCIAL JUSTICE AND HUMAN RIGHTS ........... 112
J. NON-IMPAIRMENT OF CONTRACTS ...... 171
A. CONCEPT OF SOCIAL JUSTICE ...................... 112 K. ADEQUATE LEGAL ASSISTANCE AND
B. ECONOMIC, SOCIAL, AND CULTURAL RIGHTS .... 112 FREE ACCESS TO COURTS.................... 173
C. COMMISSION ON HUMAN RIGHTS ................... 115 L. RIGHT AGAINST SELF-INCRIMINATION 174
1. Powers .................................................. 115 1. Scope and Coverage ............................ 174
2. Composition and Qualification of Members 2. Application ............................................. 175
116 3. Immunity Statutes ................................. 175
M. RIGHTS OF PERSONS UNDER CUSTODIAL
CONSTITUTIONAL LAW II ................................... 117 INVESTIGATION ................................................. 176
A. CONCEPT OF BILL OF RIGHTS............... 118 1. Availability ............................................. 177
1. Privacy and Autonomy .......................... 118 2. Requisites ............................................. 178
2. Relation to Human Rights ..................... 119 3. Waiver ................................................... 179
B. DUE PROCESS OF LAW .......................... 119 N. RIGHTS OF THE ACCUSED................. 180
1. Concept of Right to Life, Liberty and 1. Criminal Due Process ........................... 180
Property ................................................... 120 2. Bail ........................................................ 181
2. Kinds of Due Process ........................... 120 3. Presumption of innocence ..................... 183
C. EQUAL PROTECTION OF LAWS ............ 127 4. Right to be heard ................................... 184
1. Concept ................................................. 127 5. Assistance of Counsel ........................... 184
2. Requisites for Valid Classification ......... 127 6. Right to be informed of the nature and
3. Levels of Scrutiny .................................. 128 cause of accusation .............................. 185
D. RIGHT AGAINST UNREASONABLE 7. Right to a speedy and impartial trial ...... 185
SEARCHES AND SEIZURES........................ 129 8. Right of confrontation ............................ 186
1. Concept of Privacy ................................ 130 9. Compulsory process ............................. 186
2. Concept of a Search ............................. 130 10. Trial in absentia ................................. 187
3. Requisites of a Valid Warrant ............... 130 O. RIGHT TO THE SPEEDY DISPOSITION OF
4. Warrantless Searches ........................... 133 CASES .......................................................... 192
5. Warrantless Arrests and Detentions ..... 136 P. RIGHT AGAINST EXCESSIVE FINES AND
6. Exclusionary Rule ................................. 138 CRUEL, DEGRADING, AND INHUMAN
7. Effects of Unreasonable Searches and PUNISHMENTS ............................................ 193
Seizures .................................................. 138 Q. NON-IMPRISONMENT FOR DEBTS .... 193
E. PRIVACY OF COMMUNICATIONS AND R. RIGHT AGAINST DOUBLE JEOPARDY ... 194
CORRESPONDENCE ....................................... 138 1. Requisites; scope .................................. 194
1. Concept of communications, 2. Limitations; Exceptions to the Rule on
correspondence ....................................... 139 Double Jeopardy ..................................... 195
2. ............... Intrusion, when and how allowed S. RIGHT AGAINST INVOLUNTARY SERVITUDE
140 196
3. Exclusionary Rule ................................. 141 T. EX POST FACTO LAWS AND BILLS OF
F. FREEDOM OF SPEECH AND EXPRESSION ATTAINDER .................................................. 197
.................................................................. 142 LAW ON PUBLIC OFFICERS ............................... 199
1. Concept ................................................. 142
2. Types of Regulation .............................. 143 A. GENERAL PRINCIPLES ........................... 200
3. Judicial analysis, presumptions and levels 1. Public Office .......................................... 200
and types of scrutiny ............................... 149 2. Public Officer ......................................... 202
4. Special topics in Free Expression Cases .... B. MODES OF ACQUIRING TITLE TO PUBLIC OFFICE ...
.............................................................. 152 .................................................................. 204
5. Cognate rights ....................................... 155 1. Appointments ........................................ 204
G. FREEDOM OF RELIGION......................... 161 2. Election ................................................. 207
1. Basic Principles ..................................... 161 3. Designation ........................................... 207
2. Principle of Separation of Church and State C. MODES AND KINDS OF APPOINTMENT ............. 208
.............................................................. 161 1. Classification of Appointments .............. 208
3. Non-establishment Clause .................... 162 D. ELIGIBILITY AND QUALIFICATION REQUIREMENTS ...
4. Free Exercise Clause ............................ 164 .................................................................. 212
H. LIBERTY OF ABODE AND FREEDOM OF E. DISABILITIES AND INHIBITIONS OF PUBLIC
MOVEMENT ...................................................... 166 OFFICERS .................................................... 218
1. Scope and Limitations ........................... 166 F. POWERS AND DUTIES OF PUBLIC OFFICERS.... 224
2. Watch-list and hold departure orders .... 166 G. RIGHTS OF PUBLIC OFFICERS ......................... 227
I. EMINENT DOMAIN ................................... 168 1. Rights incident to public office ............... 227
2. Rights as a Citizen ................................ 227
3. Other Rights .......................................... 229 2.Registration of Political Parties ............. 307

H. LIABILITIES OF PUBLIC OFFICERS .................... 230 C. CANDIDACY ............................................. 311
1. Preventive suspension and back salaries ... 1. Qualifications and disqualifications of
.............................................................. 232 candidates ............................................. 311
2. Illegal dismissal, reinstatement, and back 2. Filing of certificates of candidacy .......... 314
salaries .................................................. 236 D. CAMPAIGN ............................................... 320
I. IMMUNITY OF PUBLIC OFFICERS ...................... 237 1. Premature campaigning ........................ 321
J. DISTINGUISH: DE FACTO AND DE JURE OFFICERS ... 2. Lawful and prohibited election propaganda
.................................................................. 238 .............................................................. 323
K. TERMINATION OF OFFICIAL RELATION .............. 240 3. Electoral Contributions .......................... 324
1. Expiration of the Term or Tenure of the 4. Limitations on expenses [Sec. 13, R.A.
Office ....................................................... 241 7166] ........................................................ 326
2. Reaching the Age Limit (Retirement) .... 241 5. Statement of contributions and expenses
3. Death or Permanent Disability .............. 242 (SOCE) .................................................... 326
4. Resignation ........................................... 242 E. BOARD OF ELECTION INSPECTORS AND
5. Acceptance of an Incompatible Officer . 243 BOARD OF ELECTION CANVASSERS ........ 326
6. Abandonment of Office ......................... 243 F. REMEDIES ................................................ 331
7. Prescription of Right to Office ............... 244 1. Petition to deny due course or cancel
8. Removal ................................................ 244 certificate of candidacy ............................ 331
9. Impeachment ........................................ 245 2. Petition for disqualification .................... 331
10. Abolition of office .............................. 245 3. Failure of election; call for special election ..
11. Conviction of a Crime ....................... 246 .............................................................. 333
12. Recall ................................................ 246 4. Pre-proclamation controversy ............... 335
13. Non-User/ Failure to assume Office . 246 5. Election Contest .................................... 339
L. CIVIL SERVICE ............................................. 246
LOCAL GOVERNMENTS...................................... 342
1. Scope .................................................... 246
2. Appointments to the Civil Service ......... 247 A. AUTONOMOUS REGION AND THEIR RELATION TO
M. ACCOUNTABILITY OF PUBLIC OFFICERS ...... 255 THE NATIONAL GOVERNMENT ........................ 343
1. Accountability (Administrative and Criminal) B. PUBLIC CORPORATIONS ................................ 344
.............................................................. 255 1. Concept; Distinguished from Government-
2. The Ombudsman and the Office of the Owned or Controlled Corporations .......... 344
Special Prosecutor .................................. 258 2. Classifications ....................................... 346
3. Sandiganbayan ..................................... 262 C. PRINCIPLES OF LOCAL AUTONOMY ................. 355
N. TERM LIMITS ........................................... 263 D. POWERS OF LOCAL GOVERNMENT UNITS
.................................................................. 359
ADMINISTRATIVE LAW ....................................... 265
1. General Welfare Clause ........................ 359
A. GENERAL PRINCIPLES .................................. 266 2. Eminent Domain .................................... 360
B. ADMINISTRATIVE AGENCIES .......................... 266 3. Taxing Power ........................................ 362
C. POWERS OF ADMINISTRATIVE AGENCIES ........ 268 4. Closure and Opening of Roads ............. 364
1. Rule-making Power ............................... 269 5. Legislative Power .................................. 365
2. Adjudicatory Power ............................... 276 6. Ultra Vires Acts ..................................... 372
3. Fact-Finding, Investigative, Licensing, and 7. Corporate Powers ................................. 373
Rate-Fixing Powers ............................... 285 8. Liability of Local Government Units ....... 374
D. JUDICIAL REVIEW ......................................... 287 9. Settlement of Boundary Disputes .......... 376
1. Doctrine of Primary Administrative 10. Local Officials .................................... 377
Jurisdiction ............................................ 288 11. Recall ................................................ 386
2. Doctrine of Exhaustion of Administrative 12. Term Limits ....................................... 388
Remedies .............................................. 289
PUBLIC INTERNATIONAL LAW .......................... 390
3. Doctrine of Finality of Administrative Action
292 A. CONCEPTS .............................................. 391
B. RELATIONSHIP BETWEEN
ELECTION LAW ................................................... 293
INTERNATIONAL AND PHILIPPINE
A. SUFFRAGE ............................................... 294 DOMESTIC LAW ....................................... 393
1. Qualification and disqualification of voters .. C. SOURCES OF INTERNATIONAL LAW ..... 394
.............................................................. 295 D. SUBJECTS OF INTERNATIONAL LAW .... 399
2. Registration and deactivation of voters . 297 1. States .................................................... 400
3. Inclusion and exclusion proceedings .... 301 2. International Organizations ................... 402
4. Local and overseas absentee voting .... 303 3. Natural Or Juridical Persons ................. 402
5. Detainee voting ..................................... 304 4. Others ................................................... 403
B. POLITICAL PARTIES ................................ 305 E. JURISDICTION OF STATES ..................... 403
1. Jurisdiction of the Commission on Elections 1. Basis of Jurisdiction .............................. 403
over Political Parties ................................ 306 2. Exemptions from Jurisdiction ................ 404
F. DIPLOMATIC AND CONSULAR LAW....... 405

1. Diplomatic Law ...................................... 405
2. Consular Relations ................................ 408
G. NATIONALITY AND STATELESSNESS ... 411
H. GENERAL PRINCIPLES OF TREATY LAW....
.................................................................. 413
I. DOCTRINE OF STATE RESPONSIBILITY 417
J. REFUGEES .............................................. 422
K. TREATMENT OF ALIENS ......................... 423
L. INTERNATIONAL HUMAN RIGHTS LAW. 427
1. The Universal Declaration of Human Rights
(“UDHR”) ................................................. 427
2. The International Covenant on Civil and
Political Rights (“ICCPR”) ........................ 428
3. The International Covenant on Economic,
Social and Cultural Rights (“ICESCR”) .... 428
M. INTERNATIONAL HUMANITARIAN LAW
429
1. Categories of Armed Conflict: ............... 430
2. Core International Obligation of States . 430
3. Principles of International Humanitarian Law
.............................................................. 431
4. Law on Neutrality .................................. 432
N. LAW OF THE SEA................................. 433
1. Baselines .............................................. 433
2. Archipelagic States ............................... 433
3. Internal waters ...................................... 434
4. Territorial Sea ....................................... 434
5. Contiguous Zone ................................... 435
6. Exclusive Economic Zone (EEZ) .......... 435
7. Continental Shelf ................................... 436
8. The International Tribunal for the Law of the
Sea (ITLOS) ............................................ 437
O. INTERNATIONAL ENVIRONMENTAL LAW
.............................................................. 438
U.P. LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
Two Special Types of Obligations under

Public International Law:
A. CONCEPTS
1. Obligations Erga Omnes
Obligations Erga Omnes are “obligations of a
Public International Law is a body of
State towards the international community as a
principles, norms and processes which
whole,” which are the “concern of all States”
regulate the relations of States and other
and for whose protection all States have a
international persons, and governs their
“legal interest” [Barcelona Traction Case, (ICJ,
conduct affecting the interests of the
1970)]
international community of States as a whole
[MAGALLONA].
Erga Omnes literally means “flowing to all.”
Private International Law is the body of rules
Examples
of the domestic law of a State that is applicable
• Prohibition of acts of aggression;
when a legal issue contains a foreign element,
• Prohibition of genocide;
and it has to be decided whether a domestic
• Obligations concerning the protection of
rule should apply foreign law or relinquish
basic human rights [see also Barcelona
jurisdiction to a foreign court [AUST].
Traction Case (ICJ, 1970)];
• Obligations relating to self-determination
Public Private [see also East Timor Case (ICJ, 1995);
International International Palestinian Wall Advisory Opinion (ICJ,
Law Law 2004)];
• Obligations relating to the environment of
Nature International in National or common spaces. [Institut de Droit
nature. municipal in
character
International (“IDI”), Resolution on
Obligations erga omnes in International
Sources 1. Treaties and Domestic laws Law (2005) (hereinafter “IDI Resolution”)]
international for legal issues
conventions containing Standing to Bring Suit: Other States have
2. Customary foreign elements standing to bring a claim to the International
international
Court of Justice (ICJ) or other international
law
3. General judicial institution in relation to a dispute
principles of concerning compliance with that obligation [Art.
law [Art. 4, IDI Resolution].
38(1), ICJ
Statute] 2. Jus Cogens
A jus cogens is a norm accepted and
Subjects 1. States; Individuals
2. International (private persons) recognized by the international community of
organizations; States as a whole as a norm from which no
3. Individuals derogation is permitted and which can be
modified only by a subsequent norm of general
international law having the same character
[Art. 53 of the Vienna Convention on the Law
of Treaties (hereinafter referred to as “VCLT”)]
Jus Cogens is also known as a peremptory

norm of general international law.
Page 391 of 439

Examples
• The prohibition against the use of force
under the UN Charter [Nicaragua Case
(ICJ, 1986)]; Sources 1. Erga From customary
• Law on genocide; Omnium: From international law
custom, it is (See later part of
• Prohibition against apartheid;
one that is Reviewer). There
• Self-determination; owed to all. All must be state
• Crimes against humanity; States have the practice and opinion
• Prohibition against slavery and slave trade; standing to juris.
• Piracy [BROWNLIE; MAGALLONA]. bring suit.
It can be that
Erga Omnes Jus Cogens there is a jus
cogens norm
As a Pertains to the Pertains to the legal that is also erga
omnes. Jus
concept non- interest of a State in
derogability of a the violation of a Cogens norms
norm and the norm. give rise to erga
validity of rules omnes
and acts that obligations.
conflict with it
2. Erga Omnes
Effect All States have It is an obligation Partes: From a
standing to that cannot be multilateral
bring a suit to contravened in any Treaty. All
enforce that matter. parties to the
obligation. treaty have
A treaty will be standing to
void: “A treaty is bring suit
void if, at the time of
its conclusion, it
conflicts with a Caveat on examples of the two special
peremptory norm of types of obligations:
general There is no authoritative listing of jus cogens
international law” norms and erga omnes obligations. The
(i.e. a jus cogens
commentaries of the ILC provide that they
norm) [Art. 53,
VCLT].
didn’t want to make it an exclusive list. Only the
prohibition on the use of force has been
Does not confer declared by the ICJ as a jus cogens norm.
jurisdiction: In
Armed Activities, it Concept of Ex Aequo et Bono (From the
held that the fact Article 38 (2) of the ICJ Statute)
that a rule has the
status of jus cogens This means, literally, “what is equitable and
does not confer good.” It denotes that a court may decide a
upon the Court a case on the basis of justice and equity, and not
jurisdiction which it be bound by technical legal rules [PELLET].
would not otherwise
possess (Armed The court may apply this standard to decide a
Activities on the
Territory of the
case when the parties to the dispute agree
Congo (New thereto [Art. 38(2), ICJ Statute]. However, this
Application: 2002) should not be confused with the ability of the
(Democratic ICJ to apply equitable principles in a case.
Republic of the
Congo v. Rwanda),
Page 392 of 439

Responsibili- Collective Generally

B. RELATIONSHIP BETWEEN ty for responsibility
because it
entails
individual
INTERNATIONAL AND PHILIPPINE Wrongful
attaches responsibility
DOMESTIC LAW Acts directly to the in case of
State and not to breach
International Law v. National (Municipal) its nationals
Law
International Domestic Different Theories of the Relationship
Law Law between International Law and Domestic
Law
Scope The conduct of Applies to a a. Monist View
States and single country International and municipal legal systems
international or nation,
are fundamentally part of one legal order.
organizations, within a
their relations determined This view considers international law to be
with each other territory and superior, with municipal law being a mere
and, in certain its inhabitants subset of international law. International
circumstances, norms are thus applicable within municipal
their relations systems even without some positive act of
with persons,
the state
natural or
juridical [ALI
Third b. Monist-Naturalist View
Restatement] Public international law is superior to
municipal law, and both systems are but a
How made Through Issued by a part of a higher system of natural law.
consent, political
adopted by superior for
States as a observance c. Dualist View
common rule of International law and municipal law are
action separate systems. Only those issues
affecting international relations are within
Relations Regulates Regulates the scope of international law.
Regulated relations of relations of
States and individuals
other among Before an international norm can have an
international themselves or effect within a municipal legal system, that
persons with their own norm must be transformed, or adopted into
States the municipal system through a positive act
by a state organ. Customary international
Sources Derived Consists
law and general principles of international
principally from mainly of
treaties, enactments law, however, need not be transformed or
international from the adopted.
custom and lawmaking
general authority of d. Coordinationist View
principles of law each State International law and municipal law operate
[Art. 38(1), ICJ in different spheres. Hence, the laws
Statute]
themselves do not conflict. However, there
Settlement of By means of By means of may be a conflict in obligations imposed by
Disputes State-to-State local either system. In such a case, the result is
transactions administrative not the invalidation of national law, but
and judicial responsibility under international law on the
processes part of that State.
Page 393 of 439

How International Law Becomes part of Articles on State Responsibility (hereinafter

Philippine Law “ASR”)].
1. Doctrine of Incorporation: The
Philippines adopts the “generally accepted A party may not invoke the provisions of its
principles of international law” (customary internal law as justification for its failure to
international law) as part of the law of the perform a treaty. This rule is without prejudice
land [Sec. 2, Art. II, 1987 Constitution]. to article 46 [Art. 27, VCLT].
They are deemed as national law whether
or not they are enacted as statutory or Exception: A State may invoke the fact that its
legislative rules [MAGALLONA]. consent to be bound by a treaty has been
expressed in violation of a provision of its
By the doctrine of incorporation, the internal law regarding competence to conclude
country is bound by generally accepted treaties as invalidating its consent if that
principles of international law, which are violation was manifest and concerned a rule of
considered to be automatically part of our its internal law of fundamental importance [Art.
own laws. [Tañada v. Angara, G.R. No. 46, VCLT].
118295. May 2, 1997]
2. Doctrine of Transformation: Treaties or C. SOURCES OF

international agreements shall become INTERNATIONAL LAW
valid and effective upon concurrence by at
least two-thirds of all the Members of the Listing is found in Article 38 (1 (a) – (d)) of the
Senate [Sec. 21, Art. VII, 1987 ICJ Statute:
Constitution]. These rules of international Article 38 of the ICJ Statute
law are not part of municipal law unless
they are transformed via legislation 1. The Court, whose function is to decide in
[MAGALLONA].
accordance with international law such
disputes
Special Case for the presence of certain
as are submitted to it, shall apply:
foreign troops in the Philippines [Sec. 25, a. international conventions, whether
Art. XVIII, 1987 Constitution]
general or particular, establishing
After the expiration in 1991 of the Agreement
rules expressly recognized by the
between the Republic of the Philippines and contesting states;
the United States of America concerning
b. international custom, as evidence of
Military Bases, foreign military bases, troops, a general practice accepted as law;
or facilities shall not be allowed in the c. the general principles of law
Philippines except under a treaty duly recognized by civilized nations ;
concurred in by the Senate and, when the d. subject to the provisions of Article
Congress so requires, ratified by a majority of
59, judicial decisions and the
the votes cast by the people in a national
teachings of the most highly qualified
referendum held for that purpose, and
publicists of the various nations, as
recognized as a treaty by the other contracting
subsidiary means for the
State. determination of rules of law.
Philippine Domestic Law in Public 2. This provision shall not prejudice the
International Law
power of the Court to decide a case ex
General Rule: A State cannot invoke its own aequo et bono, if the parties agree thereto.
national law to resist an international claim or
excuse itself from breach of duty under
international law [Art. 6, VCLT; Polish
Nationals in Danzig Case (PCIJ, 1932); Art. 32,
Page 394 of 439

Shorthand Terms for sources of PRIMARY SOURCES

international law: 1. Conventional International Law
• 1(a) refers to CONVENTIONAL
INTERNATIONAL LAW Definition of Treaty
• 1(b) refers to CUSTOMARY A treaty is an international agreement
INTERNATIONAL LAW (hereinafter concluded between states in written form and
referred to as CIL) governed by international law, whether
• 1(c) refers to GENERAL PRINCIPLES OF embodied in a single instrument or in two or
LAW (hereinafter referred to as GPL) more related instruments and whatever its
• 1(d) refers to JUDICIAL DECISIONS and particular designation” [Art. 2(1)(a), VCLT].
TEACHINGS of the most highly qualified
publicists Requisites
1. Written Form
Types of Sources of International Law ● Note that it does not require any
1. Primary Sources specific form, as long as it is written.
a. Conventional International Law (See Maritime Delimitations and
b. Customary International Law Territorial Questions between Qatar
c. General Principles of Law and Bahrain, Qatar v. Bahrain, July 1,
2. Subsidiary Sources 1994)
a. Judicial Decisions 2. Between States
b. Teachings of the most highly 3. Governed by international Law
qualified publicists
Basic Principles of Treaties
The relation between the primary sources 1. The primary body of law governing treaties
and the subsidiary sources is the Vienna Convention on the Law of
1. Primary sources create law (what is the Treaties, which is considered binding as
law) while subsidiary sources are merely Customary International law.
evidence of what the law is (tell us what is
in the law) 2. It is based on consent
2. There is no stare decisis in international a. Treaty obligation is based on
law, i.e. no binding precedent. All decisions consent. No state may be bound by
of the ICJ are only binding as between the a treaty obligation unless it has so
parties. Therefore, the decisions of the ICJ consented [Art. 34, VCLT].
only serve as subsidiary sources of b. Consent is Manifested by:
international law. signature, exchange of instruments
constituting a treaty, ratification,
The decision of the Court has no binding acceptance, approval or
force except between the parties and in accession, or by any other means
respect of that particular case. (Article 59 if so agreed. [Art. 11, VCLT, but
of the ICJ Statute see Article 12-14 of VCLT for
specific rules governing giving
Relation between the three Substantive consent by exchange of
Sources of International Law instruments, signature or
There is no established hierarchy between the ratification]
three. However, it is recognized that
Conventional and Customary international law 3. Pacta Sunt Servanda
apply first, and GPL is resorted to when there Every treaty in force is binding upon the
is an absence of Conventional or Customary parties to it and must be performed by them
International Law. in good faith [Art. 26, VCLT].
Page 395 of 439

Note: This is considered as customary must accept the reservation. A reservation

international law and applies to all is presumed to be accepted. A reservation
obligations contained in a treaty. is deemed unaccepted when another
contracting state objects. [See Art. 20,
4. Generally Not Binding on Third States, i.e. VCLT]
non-contracting parties.
Grounds for Terminating a Treaty (Articles
General Rule: A treaty does not create 46-53 and 60-62 of VCLT)
either obligations or rights for a third State 1. Provisions of Internal Law Regarding
without its consent [Art. 34, VCLT]. Competence to Conclude Treaties [Art. 46]
2. Specific Restrictions on Authority to
Exceptions: Express Consent of a State [Art. 47]
a. When the third party accepts a 3. Error [Art. 48]
provision establishing an obligation 4. Fraud [Art. 49]
for that third party. (Art. 35, VCLT) 5. Corruption of a Representative of a State
b. When the third party accepts a right [Art. 50]
provided for and exercises such 6. Coercion of a Representative [Art. 51]
right in accordance with the 7. Coercion of a State by Threat or Use of
conditions established in the treaty. Force [Art. 52]
( Art. 36, VCLT) 8. Treaties Conflicting with Jus Cogens [Art.
53]
5. Treaties are Non-Retroactive 9. Termination or Suspension of a Treaty as
a Consequence of its Breach [Art. 60]
Note: Unless a different intention appears 10. Supervening Impossibility of Performance
from the treaty or is otherwise established, [Art. 61]
its provisions do not bind a party in relation 11. Fundamental Change of Circumstances
to any act or fact which took place or any [Art. 62]
situation which ceased to exist before the
date of the entry into force of the treaty with 2. Customary International Law (CIL)
respect to that party [Art. 28, VCLT].
Definition
Reservations to Treaties General Practice Accepted as law [Art. 38 (1)
A reservation is a unilateral statement, (b), ICJ Statute].
however phrased or named, made by a State,
when signing, ratifying, accepting, approving or Elements
acceding to a treaty, whereby it purports to 1. State Practice
exclude or to modify the legal effect of certain 2. Opinio Juris
provisions of the treaty in their application to
that State [Art. 2 (d), VCLT]; Before a norm may become customary
international law binding on all States, there
General Principles on Reservations must be state practice and opinio juris sive
1. Generally they are allowed when the State necessitates. [North Sea Continental Shelf
is signing, ratifying, accepting, approving or Cases (ICJ, 1969)]
acceding to a treaty, unless they are (1)
Prohibited by the treaty (2) Only specified State Practice
reservations are allowed by the treaty or (3) The practice must be consistent and general.
The reservation is incompatible with the Consistency requires substantial uniformity
object and purpose of the treaty [Art. 19, and not necessarily complete uniformity in
VCLT]. practice [Asylum Case (ICJ, 1950)]. Generality
2. To be considered binding on the other does not require universality.
contracting state to the treaty, that State
Page 396 of 439

This means that the practice is virtually uniform Duality of Norms

and extensive and established, widespread, It is possible for a norm of international law to
consistent, representative (good number of exist both as a customary norm and a
states) [THIRLWAY]. conventional norm [e.g. prohibition against the
use of force]. Such norms are said to be of dual
State practice means that it pertains to the character.
actions of a STATE only, not of individuals.
Norms of dual character come into being when:
The following acts may evidence state practice a. a treaty provision simply restates a
[HARRIS]: customary norm;
1. Diplomatic correspondence; b. a treaty provision constitutes evidence of
2. Policy statements; custom; or
3. Press releases; c. a treaty provision crystallizes into a
4. Opinions of official legal advisers; customary norm.
5. Official manuals on legal decisions
(executive decisions and practices, and For a treaty provision to crystallize into custom,
government comments on drafts by the the provision must be norm-creating or law-
ILC); making, creating legal obligations which are
6. International and national judicial not dissolved by their fulfillment [North Sea
decisions; Continental Shelf Cases (ICJ, 1969)].
7. Recitals in treaties and international
instruments; The customary norm retains a separate identity
8. Practice of international organs even if its content is identical with that of a
treaty norm. Thus, a State that cannot hold
Opinio Juris another State responsible for a breach of a
This refers to the belief on the part of states that treaty obligation can still hold the erring state
a particular practice is required by law, and not responsible for the breach of the identical
because of courtesy or political expediency customary norm [Nicaragua Case (ICJ, 1986)].
[North Sea Continental Shelf Cases (ICJ,
1969)]. (i.e. the State acts in such a manner Philippine Practice
because it believes it is obligated to do so) The Supreme Court has identified the following
customary norms:
Binding Effect of CIL a. Rules and principles of land warfare and of
General Rule: Customary International Law is humanitarian law under the Hague
binding on all states. Convention and the Geneva Convention
[Kuroda v. Jalandoni, G.R. No. L-2662
Exception: Persistent Objector - When a State (1949)];
has continuously objected to a new customary b. Pacta sunt servanda [La Chemise Lacoste
norm at the time when it is yet in the process of v. Fernandez, G.R. No. L-63796-97
formation, by such persistent objection the (1984)];
norm will not be applicable as against that state c. Human rights as defined under the
[MAGALLONA and Asylum Case (ICJ, 1950)] Universal Declaration of Human Rights
[Reyes v. Bagatsing, G.R. No. L-65366
Note however that the ICJ has recognized the (1983)];
possibility of regional custom in the Asylum d. The principle of restrictive sovereign
Case (ICJ, 1950) and of bilateral custom in immunity [Sanders v. Veridiano, G.R. No.
the Right of Passage over Indian Territory L-46930 (1988)];
Case (ICJ, 1960). e. The principle in diplomatic law that the
receiving state has the special duty to
protect the premises of the diplomatic
Page 397 of 439

mission of the sending state [Reyes v. 6. Abuse of Rights

Bagatsing, G.R. No. L-65366 (1983)]; 7. Good Faith
f. The right of a citizen to return to his own 8. Principle of Reciprocity
country [Marcos v. Manglapus, G.R. No. 9. Circumstantial Evidence
88211 (1989)];
g. The principle that “a foreign army allowed Circumstantial evidence is admitted as
to march through friendly country or to be indirect evidence in all systems of law and
stationed in it, by permission of its its use is recognized by international
government or sovereign, is exempt from decisions. Such circumstantial evidence,
criminal jurisdiction of the place” [Raquiza however, must consist of a series of facts
v. Bradford, G.R. No. L-44 (1945)]; or events that lead to a single conclusion
h. The principle that judicial acts, not of a [Corfu Channel Case (ICJ, 1949)].
political complexion of a de facto
government established by the military SUBSIDIARY SOURCES
occupant in an enemy territory, are valid
under international law [Montebon v. Judicial Decisions and Teachings of Highly
Director of Prisons, G.R. No. L-1352 Qualified Publicists
(1947)];
i. The principle that private property seized Function: These two sources listed in Article
and used by the enemy in times of war 38 (1 (d)) of the ICJ Statute tell us what the law
under circumstances not constituting valid is. They are evidence of what international law
requisition does not become enemy is.
property and its private ownership is
retained, the enemy having acquired only Judicial Decisions
its temporary use [Noceda v. Escobar, Includes decisions of international tribunals
G.R. No. L-2939 (1950)]; and those of municipal courts. There is no
j. The principle that a State has the right to binding precedent in international law pursuant
protect itself and its revenues, a right not to Article 59 of the ICJ Statute
limited to its own territory but extending to
the high seas [Asaali v. Commissioner, Highly Qualified Publicists
G.R. No. L-24170 (1968)]. No clear definition of what is a highly qualified
publicist.
3. General Principles of Law (GPL)
The difference between Judicial Decisions
Definition: These refer to those general and Writings of Highly Qualified Publicists
principles in municipal law (particularly those of It is not so much that judicial decisions
private law) that may be appropriated to apply necessarily possess a higher intrinsic value
to the relations of states [OPPENHEIM]. than the teachings of publicists, but that they
have ‘a more direct and immediate impact on
Function of GPL: To avoid a non liquet, i.e. the realities of international life. BORDA]
when a court does not have a treaty or
customary norm to decide on. United Nations Declaration
General Rule: General Assembly resolutions
Examples of General Principles of Law are not binding on member states.
1. Estoppel ([Temple of Preah Vihear Case But when they are concerned with general
(ICJ, 1962)]. norms of international law, acceptance by all or
2. Res Judicata most members constitutes evidence of the
3. Res Inter Alios Acta opinions of governments in what is the widest
4. Prescription forum for the expression of such opinions.
5. Duty to Make Reparations [Chorzow
Factory Case (PCIJ, 1927)]
Page 398 of 439

Resolutions may satisfy the subjective element

opinio juris by expressly articulating a belief D. SUBJECTS OF
concerning the existence of principles and INTERNATIONAL LAW
rules of international law. [HARRIS]
Definition of Subjects of International Law:
State practice may also be evidenced either in Entities which are:
declarations of general principle or in 1. Capable of possessing international rights
resolutions dealing with particular cases. and duties; and
2. Having the capacity to maintain these
General Assembly resolutions may contribute rights by bringing international claims
to the formation of custom as a kind of [Reparations for Injuries Advisory Opinion
collective state practice. These resolutions can (ICJ, 1949)].
be considered the collective equivalent of
unilateral general statements. Subjects of International Law:
1. States;
In some cases, a resolution may have the 2. International organizations; and
effect of an authoritative interpretation and 3. Natural or Juridical Persons
application of the principles of the UN Charter
[CRAWFORD] Note: States are generally considered as the
primary subjects of international law.
Exception: Certain UN organizational matters
Rationale: ”xxx the world is today organized on
Security Council Resolutions the basis of the co-existence of States, and that
The Security Council is empowered to issue fundamental changes will take place only
binding legal standards when acting under through State action, whether affirmative or
Chapter VII of the UN Charter concerning negative’. The States are the repositories of
action with respect to threats to peace, legitimated authority over peoples and
breaches of the peace, and acts of aggression. territories. It is only in terms of State powers,
prerogatives, jurisdictional limits and law-
The Security Council may decide what making capabilities that territorial limits and
measures involving the use of armed force are jurisdiction, responsibility for official actions,
to be employed to give effect to its decisions. and a host of other questions of co-existence
between nations can be determined.”
When the Security Council decides not to [FRIEDMANN]
resort to recommendations but to issue
decisions, these are binding on the strength of Objects of international law are persons or
Article 25 of the UN Charter. things in respect of which rights are held and
obligations are assumed by the subject. They
Actions of organs of international are not directly governed by the rules of
organizations created by treaty international law. Their rights (e.g. human
The treaty constituting an international rights of individuals) may be asserted and their
organization may entrust a body of the responsibilities imposed indirectly, through the
organization to adopt binding legal standards instrumentality of an intermediate agency (e.g.
The rules enacted shall be binding only to the state).
member states of the organization. It cannot
bind third states. [CASSESE] This distinction between objects and subjects
of International Law has been criticized as
unhelpful, as non-state actors already have
standing to bring suits in the fields of
international criminal law and international
human rights law.
Page 399 of 439

The United Nations has an objective o some actual exercise or display of

international personality [Reparations for such authority [Eastern Greenland
Injuries Advisory Opinion (ICJ, 1949)]. Case (PCIJ, 1933)].
● Prescription
1. States o Through prescription, title is
acquired by continuous and
A state exists when it complies with the four (4) undisturbed exercise of
requisites listed in the Montevideo Convention, sovereignty over a period of time.
which is considered as customary international o In contrast [to occupation],
law for defining the requisites of statehood. prescription is the acquisition of
territory that is not terra nullius,
FOUR REQUISITES TO BE A STATE: obtained by means that may
initially have been of doubtful
Montevideo Convention, Article 1 legality but is uninterrupted and
The state as a person of international law should
possess the following qualifications: (a) a permanent uncontested for a long time. Timely
population; (b) a defined territory; (c) government; protests by the ‘former’ sovereign
and (d) capacity to enter into relations with the other will usually bar the claim [AUST].
states. ● Accession or Accretion
o Accession or accretion is the
a. Permanent Population natural process of land formation
It refers to a permanent population and resulting in the increase of territory.
intended to be used in association with that of ● Cession
o Cession means the transfer of
territory, and connotes a stable community.
territory from one state to another
by treaty (derivative). It is the only
b. Defined Territory
bilateral mode of acquiring
State territory is that defined portion of the
territorial sovereignty.
surface of the globe, which is subjected to the
sovereignty of the State [OPPENHEIM].
c. Government
Denotes a “stable political community
A state must exercise control over a certain
supporting a legal order to the exclusion of
area. It need not be exactly defined by metes
another in a given area”.
and bounds, so long as there exists a
reasonable certainty of identifying it. No
The existence of effective government, with
minimum land area is required.
centralized administrative and legislative
organs, is the best evidence of a stable political
Modes of Acquiring Territory
community. It is a centralized structure capable
● Occupation
of exercising effective control over a human
o Occupation refers not to mere
community living in a given territory.
discovery, but to effective
exercise of sovereignty over a
State practice suggests that the requirement of
territory that is terra nullius (i.e.,
a “stable political organization” in control of the
not subject to the sovereignty of
territory does not apply during a civil war or
any other state).
where there is a collapse of law and order in a
o Effective occupation means
state that already exists.
continued display of authority. It
involves:
Under the rules on succession of States, even
o the intention and will to act as
changes of entire governments do not affect
sovereign or animus occupandi;
the identity and personality of the state. Once
and
statehood is established, neither invasion nor
Page 400 of 439

disorder alone can remove its character as a Concepts Relating to Statehood:

state [BROWNLIE]. a. Recognition
Recognition is an act by which a state
Types of Government acknowledges the existence of another state,
De Jure: Government from law, that is, one government or belligerent community and
with a color of legitimacy. indicates willingness to deal with the entity as
such under international law.
De Facto: One that governs without a mandate As a public act of state, recognition is an
of law. So long as it is in place, it may command optional and political act, and there is no legal
obedience from the inhabitants of the occupied duty in this regard.
area. The de facto ruler may suspend laws and
enact new ones. Effect of Recognition
● De Facto Proper/Government by ● Declaratory School: Recognition is a
Revolution: That which usurps, either by mere declaration or acknowledgement of
force or the will of the majority, the legal an existing state of law and fact, legal
government and maintains control against personality having been previously
it; conferred by operation of law. This is the
● Government by Paramount Force/by prevailing view [BROWNLIE].
Occupation: Results from the occupation of ○ Montevideo Convention, Article 3:
a state or a part thereof by invading forces The political existence of the
in time of war; and state is independent of
● Government by Secession: Government recognition by the other states.
established as an independent government Even before recognition the state
by inhabitants of a country who rise in has the right to defend its integrity
insurrection against the parent state [See and independence, to provide for
Co Kim Cham v. Valdez Tan Keh, G.R. No. its conservation and prosperity,
L-5 (1945)]. and consequently to organize itself
as it sees fit, to legislate upon its
d. Capacity To Enter Into Relations With interests, administer its services,
Other States/Independence and to define the jurisdiction and
A state must be free from outside control in competence of its courts. The
conducting foreign and internal affairs, i.e. exercise of these rights has no
sovereign and independent. other limitation than the exercise of
the rights of other states according
The State is the sole executive and legislative to international law.
authority. It must be independent of other state ● Constitutive School: The political act of
legal orders, and any interference by such legal recognition is a precondition to the
orders, or by an international agency, must be existence of legal rights of a state. In its
based on a title of international law. logical extreme, this is to say that the very
personality of a state depends on the
Independence is the decisive criterion of political decision of other states. This is the
statehood. This concept of independence is minority view [BROWNLIE]
represented by the requirement of capacity to
enter into relations with other states. b. Failed States
States in which institutions and law and order
have totally or partially collapsed under the
pressure and amidst the confusion of erupting
violence, yet which subsist as a ghostly
presence on the world map. xxx Though
retaining legal capacity, has for all practical
purposes, lost the ability to exercise it.
Page 401 of 439

However, they are continued to be recognized 2. International Organizations

as states during their time of failure
An organization established by a treaty or other
c. Secession instrument governed by international law and
Secession is the effort of a group or section of possessing its own international legal
a state to withdraw itself from the political and personality. International organizations may
constitutional authority of that state, with a view include as members, in addition to States,
to achieving statehood for a new territorial unit other entities. [Draft Articles on the
on the international plane [In re Secession of Responsibility of International Organizations,
Quebec (Can., 1998)]. Art. 2(a)]
Grounds for Secession: General rule: International organizations have
(1) Colonization; special personality. The status and powers of
(2) Alien subjugation, domination, or an international organization is determined by
exploitation outside the colonial agreement and not by general or customary
context; international law. They are considered subjects
(3) Remedial Secession: When a people is of international law “if their legal personality is
blocked from the meaningful exercise established by their constituent instrument.”
of its right to self-determination Thus, legal personality in this context is a
internally, it is entitled, as a last resort, relative concept [MAGALLONA].
to exercise it by secession [In re
Secession of Quebec (Can., 1998)]. Exception: United Nations, which has
objective international personality. The UN’s
d. The Principle of Continuity and personality is binding on the whole
Obligations Contracted by De Facto international community, including States who
Governments are not UN members [Reparations for Injuries
The state is bound by engagements entered Advisory Opinion (ICJ, 1949)].
into by governments that have ceased to exist;
the restored government is generally liable for
the acts of the usurper. 3. Natural Or Juridical Persons
A general government de facto having In general, individuals, whether natural or

completely taken the place of the regularly juridical, do not have international legal
constituted authorities in the state binds the personalities.
nation. So far as its international obligations
are concerned, it represents the state. It However, individuals may assume the status of
succeeds to the debts of the regular subjects of international law only on the basis
government it has displaced and transmits its of agreement by states and in specific context,
own obligations to succeeding titular not in accordance with general or customary
governments. Its loans and contracts bind the international law.
state and the state is responsible for the
governmental acts of the de facto authorities. Examples of Instances where natural
In general its treaties are valid obligations of juridical persons are granted personality
the state. It may alienate the national territory ● Art. 187(c)-(e), UNCLOS provides for
and the judgments of its courts are admitted to jurisdiction of the Sea-Bed Disputes
be effective after its authority has ceased. Chamber of the ITLOS over disputes
[Tinoco Arbitration; (1 U.N. Rep. Int’l Arb. between parties to contracts relating to the
Awards 369, 1923)] exploitation of marine resources. Parties to
such contracts may be natural or juridical
persons.
Page 402 of 439

● The London Agreement of the International through the courts or by use of executive,
Military Tribunal at Nuremberg, relating to administrative, police, or other nonjudicial
crimes against peace, war crimes and action.
crimes against humanity, imposed duties
and liabilities upon individuals as well as 1. Basis of Jurisdiction
upon states.
● Art. VI of the Convention on the Prevention a. Territoriality Principle: Jurisdiction is
and Punishment of the Crime of Genocide determined by reference to the place
defined “parties charged with genocide” as where the act occurred or was committed.
including individuals [MAGALLONA]. A State takes jurisdiction over persons or
● The International Criminal Court has events within its territory. [MAGALLONA]
jurisdiction over individuals who commit Usually refers to criminal jurisdiction.
genocide, crimes against humanity and b. Nationality Principle: A State may
war crimes, subject to conditions of the ICC exercise jurisdiction over an offender by
Statute [Art. 25(1), ICC Statute, in relation virtue of his being its national, without
to Art. 5]. regard as to where he was at the time the
offense was committed and without respect
4. Others to the nature of the offense
[MAGALLONA].
c. Protective Principle: A State may
E. JURISDICTION OF exercise jurisdiction over an offense
STATES committed outside its territory by its
national or non-national, by reason of
Jurisdiction means the power of a state under protecting its security or vital interests
international law to govern persons and d. Universality Principle: A State may
property by its municipal law. This may be exercise jurisdiction over crimes committed
criminal or civil, and may be exclusive or without respect to the nationality of the
concurrent with other states [HARRIS]. offender, on the ground that such crimes
are declared as international crimes by the
Types of Jurisdiction: international community as a whole and
a. Prescriptive Jurisdiction: This refers to thus are prohibited by international law
the power of a State to make its law [MAGALLONA]. Example: Jurisdiction is
applicable to the activities, relations, or asserted with respect to acts considered
status of persons, or the interests of committed against the whole world [e.g.
persons in things, whether by legislation, piracy, see People v. Lol-lo and Saraw,
by executive act or order, by administrative G.R. No. 17958 (1922)].
rule or regulation, or by determination by a e. Passive Personality Principle: A State
court. may exercise jurisdiction against foreign
nationals who commit acts to the injury of
b. Adjudicative Jurisdiction: This refers to its nationals within the territory of another
the State’s jurisdiction to subject persons State [MAGALLONA]. A court has
or things to the process of its courts or jurisdiction if the offended party of the act
administrative tribunals, whether in civil or is a national of the forum state [S.S. Lotus
in criminal proceedings, whether or not the Case (PCA, 1927)].
state is a party to the proceedings.
Conflict of Jurisdiction
c. Enforcement Jurisdiction: This refers to This arises when two or more states can
the State’s jurisdiction to enforce or compel exercise jurisdiction based on one or more
compliance or to punish noncompliance different principles of jurisdiction (ex:
with its laws or regulations, whether Universality v. Territoriality)
Page 403 of 439

2. Exemptions from Jurisdiction 3. Such immunity applies even if the claim

against the state is for violation of a jus
cogens norm in international law.
a. Acts of State Doctrine
“Immunity from jurisdiction is an immunity not
State Immunity
merely from being subjected to an adverse
General Rule: This refers to a principle by
judgment but from being subjected to the trial
which a state, its agents, and property are
process. It is, therefore, necessarily
immune from the jurisdiction of another state
preliminary in nature. […]In addition, there is
[MAGALLONA].
a substantial body of State practice from other
countries which demonstrates that customary
This principle is premised on the juridical
international law does not treat a State’s
equality of states, according to which a state
entitlement to immunity as dependent upon
may not impose its authority or extend its
the gravity of the act of which it is accused or
jurisdiction to another state without the consent
the peremptory nature of the rule which it is
of the latter, through a waiver of immunity.
alleged to have violated.” [Jurisdictional
Thus, domestic courts must decline to hear
Immunities of the State, Germany v. Italy (ICJ,
cases against foreign sovereigns out of
2012)]
deference to their role as sovereigns.
Exception: When a state waives the immunity b. International Organizations and

or consents to being sued. their Officers
Types of State Immunity The rapid growth of international organizations

1. Rationae Materiae: Attaches to the official under contemporary international law has
acts of State officials and is determined by paved the way for the development of the
reference to the nature of the acts in concept of international immunities.
question rather than by reference to the
particular office of the official. There are 3 propositions underlying the grant
a. Doctrine of Restrictive Immunity of international immunities to international
divides this immunity into two organizations. These principles, contained in
categories: the ILO Memorandum are stated thus:
i. Acts performed jure (1) International institutions should have a
imperii: that is, private or status which protects them against
commercial transactions of control or interference by any one
States, are subject to government in the performance of
foreign jurisdiction. functions for the effective discharge of
ii. Acts performed jure which they are responsible to
gestionis: the foreign State democratically-constituted
in its capacity as a international bodies in which all the
sovereign, are immune. nations concerned are represented;
2. Rationae Personae: Attaches to the office (2) No country should derive any national
itself. However, in contrast, it covers official financial advantage by levying fiscal
and personal acts. charges on common international
funds; and
The Nature of State Immunity (3) The international organization should,
1. It is preliminary in nature and does not as a collectivity of States members, be
depend on the obligation breached by accorded the facilities for the conduct
the State. of its official business customarily
2. It is a customary norm. extended to each other by its individual
member States.
Page 404 of 439

International immunity is not concerned with a. Agents of Diplomatic Relations

the status, dignity or privileges of individuals,
but with the elements of functional i. Diplomatic Corps
independence necessary to free international
institutions from national control and enable This refers to the collectivity of all diplomatic
them to discharge their responsibilities envoys accredited to a state composed of:
impartially on behalf of all their members. The 1. Head of mission, classified into:
raison d’etre for these immunities is the a. Ambassadors or nuncios
assurance of unimpeded performance of accredited to the heads of
their functions by the agencies concerned State, and other heads of
[International Catholic Immigration mission of equivalent rank;
Commission v. Calleja, G.R. No. 85750 b. Envoys, ministers, and
(1990)]. internuncios accredited to the
heads of State;
c. Charges d’affaires accredited
F. DIPLOMATIC AND to Ministers of Foreign Affairs
CONSULAR LAW [Art. 14, VCDR];
2. Diplomatic staff, engaged in diplomatic
1. Diplomatic Law activities and are accorded diplomatic
rank [Art. 1(d), VCDR];
3. Administrative and technical staff,
Definition: Rules regulating the various
those employed in the administrative
aspects of diplomatic relations.
and technical service of the mission
[Art. 1(f), VCDR];
Nature: The rules of diplomatic law “constitute
4. Service staff, engaged in the domestic
a self-contained regime, which on the one
service of the mission [Art. 1(g), VCDR]
hand, lays down the receiving state’s
[Nachura].
obligations regarding the facilities, privileges
and immunities to be accorded to diplomatic
In the Philippines, the President appoints,
missions and, on the other, foresees their
sends, and instructs the diplomatic and
possible abuse by members of the mission and
consular representatives [Sec. 16, Art. VII,
specifies the means at the disposal of the
1987 Constitution].
receiving state to counter any such abuse.”
(US Diplomatic and Consular Staff in Tehran)
ii. Heads of State
Relevant Convention: Vienna Convention on
The head of State represents the sovereignty
Diplomatic Relations (“VCDR”)
of the State and enjoys the right to special
protection for his physical safety and the
Diplomatic Intercourse/Right of legation
preservation of his honor and reputation.
The right of a state to send and receive
diplomatic missions, which enables states to
The head of State is immune from criminal and
carry on friendly intercourse.
civil jurisdiction, except when he himself is the
plaintiff, and is not subject to tax or exchange
Diplomatic relations and diplomatic missions
or currency restrictions. Upon the principle of
are separately established by mutual consent
extraterritoriality, his quarters, archives,
(See Art. 2, VCDR)
property, and means of transportation are
inviolate.
Page 405 of 439

iii. Foreign Office • Functional necessity theory: The

privileges and immunities are necessary to
This is the body entrusted with the conduct of enable the diplomatic mission to perform
actual day-to-day foreign affairs. its functions. This theory was adopted by
the ILC when it drafted the draft articles of
It is headed by a secretary or a minister who, the VCDR [MAGALLONA].
in proper cases, may make binding
declarations on behalf of his government i. Personal Inviolability
[Eastern Greenland Case (PCIJ, 1933)].
b. Functions and Duties of Agents General Rule: The person of a diplomatic
agent shall be inviolable. He shall not be liable
1. Represent the sending State in the to any form of arrest or detention. [Art. 29,
receiving State [Art. 3(1)(a), VCDR]; VCDR]
2. Protect in the receiving State the
interests of the sending State and its Exception: The diplomatic envoy may be
nationals, within the limits allowed by arrested temporarily in case of urgent danger,
international law [Art. 3(1)(b), VCDR]; such as when he commits an act of violence
3. Negotiate with the government of the which makes it necessary to put him under
receiving State [Art. 3(1)(c), VCDR]; restraint for the purpose of preventing similar
4. Ascertain, by all lawful means, the acts [Diplomatic and Consular Staff in Tehran
conditions and developments in the Case (ICJ, 1980)].
receiving State and reporting the same
to the sending State [Art. 3(1)(d), The receiving State shall treat him with due
VCDR]; respect and shall take all appropriate steps to
5. Promote friendly relations between the prevent any attack on his person, freedom or
sending State and receiving State, and dignity. [Art. 29, VCDR]
developing their economic, cultural and
scientific relations [Art. 3(1)(e), VCDR]; The duty to treat him with due respect and
6. If diplomatic relation is severed, entrust protect his person, freedom or dignity from
the protection of its nationals to the physical interference by other persons [Art. 22,
diplomatic mission of a third state VCDR].
acceptable to the receiving state [Art.
45, VCDR]; and Scope
7. May protect the interest of a third State 1. The private residence of a diplomatic agent
by agreement with the receiving State, shall enjoy the same inviolability and
if there are no diplomatic relations protection as the premises of the mission.
between the third state and the 2. His papers, correspondence and, except
receiving state [Art. 46, VCDR] as provided in paragraph 3 of article 31
[Magallona]. 3. His property shall likewise enjoy
inviolability. [Art. 30 VCDR]
c. Diplomatic Immunities and Privileges
ii. Inviolability of Premises of the
Theoretical Bases Mission and the Archives
Diplomatic immunities and privileges have
been justified under the following theories: The term “premises of the mission” means the
• Extraterritoriality theory: The premises of buildings or parts of the buildings and the land
the diplomatic mission represent a sort of ancillary thereto used for the purposes of the
extension of the territory of the sending mission including the residence of the
State. diplomatic agent [Art. 1(i), VCDR]. This is
• Representational theory: The diplomatic irrespective of the ownership of the premises
mission personifies the sending State. [Magallona, citing ILC Yearbook].
Page 406 of 439

Rule
1. The premises of the mission shall be iv. Immunity from Local
inviolable. The agents of the receiving Jurisdiction
State may not enter them, except with the
consent of the head of the mission. Persons Entitled
2. The receiving State is under a special duty 1. Diplomatic agent and family: Diplomatic
to take all appropriate steps to protect the agent and members of the family of the
premises of the mission against any diplomatic agent forming part of his
intrusion or damage and to prevent any household, who are not nationals of the
disturbance of the peace of the mission or receiving state [Art. 31, VCDR];
impairment of its dignity.
3. The premises of the mission, their 2. Administrative and technical staff:
furnishings and other property thereon and a. As to criminal jurisdiction,
the means of transport of the mission shall members of the administrative and
be immune from search, requisition, technical staff of the diplomatic
attachment or execution. [Art. 22, VCDR] mission, as well as members of
their families forming part of their
Continuing Duty respective households, who are
If diplomatic relations are broken off between not nationals of or permanent
two States, or if a mission is permanently or residents in the receiving state;
temporarily recalled: b. As to civil and administrative
1. The receiving State must, even in case jurisdiction, immunity shall not
of armed conflict, respect and protect extend to acts performed outside
the premises of the mission, together the course of their duties [Art. 37,
with its property and archives; VCDR]; and
2. The sending State may entrust the
custody of the premises of the mission, 3. Service staff: Members of the service staff
together with its property and archives, of the diplomatic mission, who are not
to a third State acceptable to the nationals of or permanent residents in the
receiving State; receiving state, with respect to acts
3. The sending State may entrust the performed in the course of their duties [Art.
protection of its interests and those of 37, VCDR].
its nationals to a third State acceptable
to the receiving State. [Art. 45, VCDR]. Duration of Immunities and Privileges
Immunities and privileges begin from the
iii. Right to Official Communication moment the person enters the territory of the
receiving state to take up his post or, if already
Rule: The envoy is entitled to fully and freely in its territory, from the moment when his
communicate with his government. appointment is notified to the Ministry of
1. The receiving state shall permit and protect Foreign Affairs.
free communication on the part of the
mission for all official purposes; They come to an end when he:
2. The mission may employ all appropriate 1. exits the country, or
means to send and receive messages by 2. upon expiration of a reasonable period in
any of the usual modes of communication which to leave the country [Art. 39, VCDR].
or by diplomatic courier, which shall enjoy
inviolability;
3. The official correspondence of the mission
is inviolable; and
4. The diplomatic bag shall not be opened or
detained [Art. 27, VCDR].
Page 407 of 439

Waiver of Immunity from Jurisdiction No measures of execution may be taken in

In proceedings, whether criminal, civil or respect of a diplomatic agent except in the
administrative, the waiver must be: cases where he comes under the above
1. made by the sending State itself; and exceptions and provided that the measures
2. express [Art. 32, VCDR]. concerned can be taken without infringing the
inviolability of his person or of his residence.
State practice indicates that the authority to [Art. 31, VCDR]
exercise the waiver rests with the sovereign
organs, and not the diplomatic agent or official 2. Consular Relations
himself [MAGALLONA].
Definition: These are the relations which come
A diplomatic agent is not obliged to give into existence between two States by reason of
evidence as a witness. [Art. 31, VCDR] the fact that consular functions are exercised
by authorities of one State in the territory of the
(a) Criminal Jurisdiction other [MAGALLONA].
Rule : A diplomatic agent enjoys immunity from Relevant Convention: Vienna Convention on
criminal jurisdiction of the receiving State [Art. Consular Relations (VCCR)
31, VCDR]. He may not be arrested,
prosecuted, prosecuted or punished for any Consular relations are established by mutual
offense he may commit, unless his immunity is consent. The consent given to the
waived. establishment of diplomatic relations between
two States implies consent to the
Note: The immunity of a diplomatic agent from establishment of consular relations, unless
the jurisdiction of the receiving State does not otherwise stated but the severance of
exempt him from the jurisdiction of the sending diplomatic relations shall not ipso facto involve
State. [Art. 31(4) VCDR] the severance of consular relations. [Art. 2,
VCCR].
(b) Civil and Administrative Jurisdiction
a. Consuls
General Rule: An agent shall enjoy immunity
from its civil and administrative jurisdiction. Definition: Consuls are state agents residing
[Art. 31, VCDR] abroad with certain functions (see b.)
Exceptions Ranks:
1. A real action relating to private immovable ● Consul general – heads several consular
property situated in the territory of the districts, or one exceptionally large
receiving State, unless he holds it on behalf consular district;
of the sending State for the purposes of the ● Consul – in charge of a small district or
mission; town or port;
2. An action relating to succession in which ● Vice Consul – assists the consul;
the diplomatic agent is involved as ● Consular agent – one entrusted with the
executor, administrator, heir or legatee as performance of certain functions by the
a private person and not on behalf of the consul.
sending State;
3. An action relating to any professional or b. Functions and Duties
commercial activity exercised by the
diplomatic agent in the receiving State The functions and duties of Consuls include but
outside his official functions. [Art. 31, are not limited to the ff:
VCDR] (a) protecting in the receiving State the
interests of the sending State and of its
Page 408 of 439

nationals, both individuals and bodies them, and give consular officers the right to visit
corporate, within the limits permitted by a national of the sending state who is in prison,
international law; custody or detention [LaGrand Case (ICJ,
(b) issuing passports and travel 2001)].
documents to nationals of the sending
State, and visas or appropriate However, the VCCR violation does not
documents to persons wishing to travel automatically result in the partial or total
to the sending State; annulment of conviction or sentence [Avena
(c) helping and assisting nationals, both Case (ICJ, 2004)].
individuals and bodies corporate, of the
sending State; d. Immunities and Privileges
(d) acting as notary and civil registrar and
in capacities of a similar kind, and i. Personal Inviolability
performing certain functions of an Rule
administrative nature, provided that (a) They are not liable to arrest or detention
there is nothing contrary thereto in the pending trial, except in case of a grave
laws and regulations of the receiving crime and pursuant to a decision of a
State; competent judicial authority; and
(e) safeguarding the interests of nationals, (b) shall not be committed to prison nor be
both individuals and bodies corporate, subject to any other form of restriction to
of the sending States in cases of personal freedom, except in the case of
succession mortis causa in the territory grave crime pursuant to a decision of
of the receiving State, in accordance competent judicial authority, or in the
with the laws and regulations of the execution of a final judicial decision
receiving State; (c) If criminal proceedings are instituted
(f) performing any other functions against a consular officer, he must appear
entrusted to a consular post by the before the competent authorities but the
sending State which are not prohibited proceedings shall be conducted with the
by the laws and regulations of the respect due to him by reason of his official
receiving State or to which no objection position and, except in par. 1, in a manner
is taken by the receiving State or which which will hamper the exercise of consular
are referred to in the international functions as little as possible.
agreements in force between the (d) When, in the circumstances mentioned in
sending State and the receiving State. paragraph 1 it has become necessary to
[Art. 5, VCCR] detain a consular officer, the proceedings
against him shall be instituted with the
c. Right to Consular Assistance minimum of delay. [Art. 41, VCCR].
Diplomatic Protection ii. Inviolability of Consular

Right of a state to claim rights for its nationals Premises
abroad.
The term “consular premises” refers to “the
States have a positive duty to accord consular buildings or parts of buildings and the land
privileges to sending states whose nationals ancillary thereto, irrespective of ownership,
have run into trouble in the jurisdiction of the used exclusively for the purposes of consular
receiving states [Avena Case (ICJ, 2004) and post” [Art. 1(j), VCCR].
LaGrand Case (ICJ, 2001)].
Rule
See Art. 36(1), VCCR, which gives consular (a) The authorities of the receiving State shall
officers the right to communicate with nationals not enter that part of the consular premises
of the sending state and to have access to which is used exclusively for the purpose of
Page 409 of 439

the work of the consular post except with (b) In communicating with the Government,
the consent of the head of the consular the diplomatic missions and other consular
post or of his designee or of the head of the posts, wherever situated, of the sending
diplomatic mission of the sending State. State, the consular post may employ all
The consent of the head of the consular appropriate means, including diplomatic or
post may, however, be assumed in case of consular couriers, diplomatic or consular
fire or other disaster requiring prompt bags and messages in code or cipher.
protective action. However, the consular post
(b) The receiving State is under a special duty (c) The official correspondence of the consular
to take all appropriate steps to protect the post shall be inviolable. Official
consular premises against any intrusion or correspondence means all
damage and to prevent any disturbance of correspondence relating to the consular
the peace of the consular post or post and its functions. [Art. 35, VCCR]
impairment of its dignity.
(c) The consular premises, their furnishings, The Consular Bag
the property of the consular post and its General Rule
means of transport shall be immune from The consular bag shall neither be opened nor
any form of requisition for purposes of detained. [Art. 35 VCCR]
national defense or public utility. If
expropriation is necessary for such Exception
purposes, all possible steps shall be taken The receiving state may, however, request that
to avoid impeding the performance of the consular bag be opened if the authorities
consular functions, and prompt, adequate have serious reasons to believe that the bag
and effective compensation shall be paid to contains something other than
the sending State. [Art. 31, VCDR] correspondence, documents or articles
intended exclusively for official use. If the
iii. Inviolability of Archives request is accepted, the bag may be opened in
the presence of the authorized representative
The inviolability of archives is unconditional. of the sending state; If the request is refused,
They shall be inviolable at all times and the bag shall be returned to its place of origin
wherever they may be [Art. 33, VCCR]. [Art. 35, VCCR].
The consular archives and documents of a v. Immunity from Local

consular post headed by an honorary consular Jurisdiction
officer shall be inviolable at all times and
wherever they may be, provided that they are General rule: Consular officers and
kept separate from other papers and employees are entitled to immunity from the
documents and, in particular, from the private jurisdiction of administrative and judicial
correspondence of the head of a consular post authorities in the receiving state. [Art. 43,
and of any person working with him, and from VCCR]
the materials, books or documents relating to
their profession or trade. [Art. 66, VCCR] Exceptions
This immunity shall not apply to a civil action
iv. Freedom of Communication either:
1. Arising out of a contract by a consular
Rule officer or employee, which he did not
(a) The receiving State shall permit and conclude expressly or impliedly as an
protect freedom of communication on the agent of the sending state; or
part of the consular post for all official 2. By a third party for damage arising from an
purposes. accident caused by vehicle, vessel or
Page 410 of 439

aircraft in the receiving state [Art. 43,

VCCR]. Acquisition of Nationality
1. Birth
Liability to Give Evidence a. Jus Sanguinis: where a person
1. Members of a consular post may be called acquires the nationality of the state
upon to attend as witnesses in the course where he is born.
of judicial or administrative proceedings. b. Jus Soli: where a person acquires
a. A consular employee or a member the nationality of his parents.
of the service staff shall not, except 2. Naturalization
in the cases mentioned in Naturalization is a process by which a person
paragraph 3, decline to give acquires a nationality after birth by any means
evidence. provided by the law [COQUIA AND AGUILING-
b. If a consular officer should decline PANGALANGAN]
to do so, no coercive measure or
penalty may be applied to him. There are 2 types of naturalization
2. The authority requiring the evidence of a a. Direct:
consular officer shall avoid interference ● By individual proceedings, usually
with the performance of his functions. It judicial, under general naturalization
may, when possible, take such evidence at laws;
his residence or at the consular post or ● By special act of legislature;
accept a statement from him in writing. ● By collective change of nationality as a
3. Members of a consular post are under no result of cession or subrogation
obligation to give evidence concerning (naturalization en masse);
matters connected with the exercise of ● By adoption (in some cases)
their functions or to produce official b. Derivative, usually subject to stringent
correspondence and documents relating restrictions and conditions:
thereto. They are also entitled to decline to ● On the wife of the naturalized husband;
give evidence as expert witnesses with ● On the minor children of the naturalized
regard to the law of the sending State. [Art. parent;
44, VCCR] ● On the alien upon marriage to a
national.
G. NATIONALITY AND CONCEPTS ON NATIONALITY
STATELESSNESS Multiple Nationality
Multiple nationality is acquired as the result of
NATIONALITY the concurrent application to an individual of
Definition the conflicting municipal laws of two or more
Nationality is the tie that binds an individual to states claiming him as their national.
his state, from which he can claim protection
and whose laws he is obliged to obey. It is Example: Dual Citizenship in Philippine Law,
membership in a political community with all its such as when a child is born in the United
concomitant rights and obligations. States of Filipino parents would be an
Importance American national under jus soli and a Filipino
Nationality is important in international law national under jus sanguinis, or when a Filipino
because an individual ordinarily can participate citizen marries a foreigner and acquires
in international relations only through the derivative citizenship but does not lose Filipino
instrumentality of the state to which he citizenship unless by act or omission they are
belongs, as when his government asserts a deemed to have renounced it [See Sec. 4, Art.
claim on his behalf for injuries suffered by him IV of the 1987 Constitution].
in a foreign jurisdiction. This remedy would not
be available to a stateless individual.
Page 411 of 439

Indelible Allegiance nationality. [Art. 2, Hague Convention of

An individual may be compelled to retain his 1930]
original nationality notwithstanding that he has
already renounced or forfeited it under the laws 2. Loss of Nationality
of a second state whose nationality he has a. Voluntary
acquired [NACHURA]. i. Renunciation which may be
express or implied
Principle of Effective Nationality ii. Request for release
Within a third state, a person having more than b. Involuntary
one nationality shall be treated as if he has only i. Forfeiture as the result of some
one. The third state shall recognize disqualification or prohibited act.
conclusively in its territory either the nationality ii. Substitution of one nationality for
of the country in which he is habitually and another.
principally present or the nationality of the
country with which he appears to be in fact STATELESSNESS
most closely connected. The courts of third Definition
states resolve the conflict by having recourse For the purpose of this Convention, the term
to international criteria, and their prevailing “stateless person” means a person who is not
tendency is to prefer the real and effective considered as a national by any State under
nationality [Nottebohm Case (ICJ, 1955)] the operation of its law. [Art. 1, Convention
Relating to the Status of Stateless Persons
Nationality in Philippine Law (1960)]
The Philippine Constitution applies the jus
sanguinis principle which means the rule of Statelessness is the condition or status of an
descent or blood. [U.S. v. Wong Kim Art, 169 individual who is born without any nationality or
U.S. 649 (1898)] who loses his nationality without retaining or
acquiring another [CRUZ].
Types of Citizens Under Article IV of the
1987 Philippine Constitution Rights of A Stateless Person
(1) Those who are citizens of the Philippines at 1. The right to religion and religious
the time of the adoption of this Constitution; instruction
(2) Those whose fathers or mothers are 2. Access to courts
citizens of the Philippines; 3. Elementary education
(3) Those born before January 17, 1973, of 4. Public relief and assistance and rationing
Filipino mothers, who elect Philippine of products in short supply
citizenship upon reaching the age of majority; 5. Treatment no less favorable than that
and accorded to aliens
(4) Those who are naturalized in accordance 6. Right of Association
with law.
Note: That the Convention Relating to the
Rules on Nationality Status of Stateless persons does not in any
1. Determination of Nationality - Any way enumerate an exclusive listing of rights
question as to whether a person possesses granted to stateless persons.
the nationality of a particular state shall be
determined in accordance with the law of Right to Nationality under the Universal
that state. These laws shall be recognized Declaration on Human Rights (UDHR)
by other states so long as they are 1. Everyone has the right to a nationality.
consistent with international conventions, 2. No one shall be arbitrarily deprived of his
international customs and the principles of nationality nor denied the right to change
law generally recognized with regard to his nationality [Art. 15]
Page 412 of 439

Right to Nationality under the International Definition of Treaty

Convention on Civil and Political Rights A treaty, under international Law is:
(ICCPR) a. An international agreement;
1. Every child shall have, without any b. concluded between states;
discrimination as to race, colour, sex, c. in written form;
language, religion, national or social origin, d. governed by international law;
property or birth, the right, to such e. whether embodied in a single
measures of protection as are required by instrument or in two or more related
his status as a minor, on the part of his instruments; and
family, society and the State. f. whatever its particular designation
2. Every child shall be registered immediately [Art. 2(1)(a), VCLT].
after birth and shall have a name.
3. Every child has the right to acquire a However, the definitions under the VCLT are
nationality [Art. 24]. “without prejudice to the use of those terms or
to the meanings which may be given to them in
Nationality of Foundlings the internal law of any State” [Art. 2(2), VCLT].
Definition
A deserted or abandoned infant or child whose Requisites for a Valid Treaty
parents, guardian or relatives are unknown; or 1) Treaty Making Capacity (refers to states
a child committed to an orphanage or which have international legal personality,
charitable or similar institution with unknown see Section D above on subjects of
facts of birth and parentage and registered in international law and Article 6 of VCLT
the Civil Register as a "foundling” [A.M. No. 02- specifically provides that states have the
6-02-SC, Resolution Approving The Proposed capacity to enter into treaties)
Rule on Adoption (Domestic and Inter- 2) Competence of the representative giving
Country)] consent
3) Consent freely given
The common thread of the UDHR, UNCRC 4) Object and Subject Matter
and ICCPR is to obligate the Philippines to 5) Ratification
grant nationality from birth and ensure that
no child is stateless. This grant of nationality In addition to the constitutional requirement,
must be at the time of birth. These ratification is likewise necessary under
circumstances, including the practice of jus international law when:
sanguinis countries, show that it is a generally 1. The treaty provides for consent to be
accepted principle of international law to expressed by means of ratification;
presume foundlings as having been born of 2. It is otherwise established that the
nationals of the country in which the foundling negotiating states agreed that ratification
is found [Poe-Llamanzares v. COMELEC, G.R. should be required;
No. 221697 (2016)]. 3. The representative of the state has signed
the treaty subject to ratification; or
4. The intention of the State to sign the treaty
H. GENERAL PRINCIPLES subject to ratification appears from the full
OF TREATY LAW powers of its representative, or was
expressed during the negotiation [Art.
Note: 14(1), VCLT].
● Please also See "Section C. Sources of
law" above for a discussion on Treaty Law Treaty-Making Process
● Vienna Convention on the Law of Treaties 1. Authorization. Two modes where a
is referred to as “VCLT: person is considered as representing their
state: (a) with full powers and (b) without
full powers
Page 413 of 439

i. A person is considered as Note: See Articles 12-17 of VCLT for in

representing a State in the treaty- detail explanations of each manner of
making process if he produces expressing consent
appropriate full powers. [Art. 7 (1(a,b)), 6. Registration. The treaty is then registered
VCLT]. with the Secretariat of the United Nations
ii. In virtue of their functions and without [Art. 80, VCLT]. Otherwise, the treaty may
having to produce full powers, the not be invoked before any UN organ [Art.
following are considered as 102(2), UN Charter], including the ICJ.
representing their State:
a. Heads of State, Heads of Important Concepts in Treaty law
Government and Ministers for
Foreign Affairs, for the purpose 1. Pacta Sunt Servanda
of performing all acts relating to Every treaty in force is binding upon the parties
the conclusion of a treaty; to it and must be performed by them in good
b. Heads of diplomatic missions, faith [Art. 26, VCLT].
for the purpose of adopting the
text of a treaty between the Note: This is considered as customary
accrediting State and the State international law and applies to all obligations
to which they are accredited; contained in a treaty, whether or not the state
c. Representatives accredited by is a party to the VCLT. [Gabcikovo-Nagymaros
States to an international Project (ICJ, 1997)]
conference or to an
international organization or 2. Reservations
one of its organs, for the A reservation is a unilateral statement,
purpose of adopting the text of however phrased or named, made by a State,
a treaty in that conference, when signing, ratifying, accepting, approving or
organization or organ. [Art. 7 (2 acceding to a treaty, whereby it purports to
(a-c)), VCLT] exclude or to modify the legal effect of certain
2. Negotiation. The state representatives provisions of the treaty in their application to
discuss the terms and provisions of the that State [Art. 2 (d), VCLT]
treaty.
3. Adoption. When the form and content Exceptions: A reservation shall not operate to
have been settled by the negotiating modify or exclude the provisions of a treaty:
states, the treaty is adopted. This is only a. Where the treaty expressly prohibits
preparatory to (1) the authentication of the reservations in general;
text of the treaty, and (2) the signing thereof b. Where the treaty expressly prohibits that
[Art. 9, VCLT]. specific reservation being made; or
4. Authentication. A definitive text of the c. Where the reservation is incompatible with
treaty is established as the correct and the object and purpose of the treaty [Art.
authentic one [Art. 10, VCLT]. 19, VCLT; Reservation to the Genocide
5. Expression of consent. The state parties Conventions Advisory Opinion (ICJ,
express their consent to be bound by the 1951)].
terms of the treaty. The modes of such
expression are by (i) signature, (ii) To be considered binding on the other
exchange of instruments constituting a contracting state to the treaty, that State must
treaty, (iii) ratification, (iv) acceptance, (v) accept the reservation. A reservation is
approval or (vi) accession, or (vii) by any presumed to be accepted. A reservation is
other means if so agreed. [Art. 11, VCLT] deemed unaccepted when another contracting
state objects. [See Art. 20, VCLT]
Page 414 of 439

3. Amendment and Modification of c. Error of fact or situation, provided that:

Treaties 1. Such formed an essential basis of a
state’s consent to be bound;
General rule for multilateral treaties: 2. The State did not contribute by its own
Consent of all the parties is required. conduct to the error; and
3. The circumstances were not such as to
Exception: If the treaty itself so allows, two put that State on notice of a possible
states may modify a provision only insofar as error [Art. 48, VCLT].
their relationship inter se. d. If consent was obtained through
fraudulent conduct of another negotiating
4. Non-Binding on third states; exceptions state [Art. 49, VCLT];
A treaty does not create either obligations or e. If the representative of a state was
rights for a third State without its consent [Art. corrupted to consent by another
34, VCLT]. negotiating state [Art. 50, VCLT];
f. If the representative of a State was
Exceptions: coerced through acts or threats directed
a. When the third party accepts a provision against him [Art. 51, VCLT];
establishing an obligation for that third g. If the conclusion of a treaty is procured by
party. [Art. 35, VCLT] threat or use of force [Art. 52, VCLT];
b. When the third party accepts a right h. If it violates a jus cogens norm of
provided for and exercises such right in international law [Art. 53, VCLT].
accordance with the conditions established
in the treaty. [Art. 36, VCLT] Grounds for Termination of the Treaty
a. Termination of the treaty or withdrawal of a
5. Non-retroactivity party in accordance with the provisions of
Unless a different intention appears from the the treaty or by consent of all the parties
treaty or is otherwise established, its provisions [Art. 54, VCLT]
do not bind a party in relation to any act or fact b. Denunciation or desistance by a party in
which took place or any situation which ceased accordance with the provisions of the
to exist before the date of the entry into force of treaty, or if the treaty does not so provide:
the treaty with respect to that party [Art. 28, 1. The parties intended to admit the
VCLT]. possibility of denunciation or
withdrawal; or
2. A right of denunciation or withdrawal
may be implied from the nature of the
treaty [Art. 56, VCLT].
Invalid Treaties c. Conclusion of a subsequent inconsistent
A treaty is invalid: treaty [Art. 59, VCLT];
a. If consent was given in violation of d. Material breach or Termination or
provisions of internal law regarding Suspension of a Treaty as a Consequence
competence to conclude treaties, of its Breach [Art. 60, VCLT] Either:
provided that: 1. A repudiation of the treaty not
1. The violation is manifest; and sanctioned by the present Convention;
2. It concerned a rule of fundamental or
importance [Art. 46, VCLT]. 2. The violation of a provision essential to
b. If the representative consented in violation the accomplishment of the object or
of specific restrictions on authority, purpose of the treaty. [Art. 60 (3),
provided the restriction was notified to the VCLT]
other negotiating states prior to the e. Supervening Impossibility of Performance
representative expressing such consent [Art. 61, VCLT]
[Art. 47, VCLT];
Page 415 of 439

General Rule: The impossibility results g. Severance of Consular or Diplomatic

from the permanent disappearance or Relations if the relations were
destruction of an object indispensable for indispensable for the application of the
the execution of the treaty. If the treaty [Art. 63, VCLT]
impossibility is temporary, it may be
invoked only as a ground for suspending h. Emergence of a new peremptory norm of
the operation of the treaty general international law (Jus Cogens) [Art.
64, VCLT]
Exception: If the impossibility is the result
of a breach by that party either of an Treaties under Philippine Law
obligation under the treaty or of any other
international obligation owed to any other Note: see also “B. Relationship between
party to the treaty. International law and Philippine Domestic Law”
above
f. Fundamental Change of Circumstances
[Art. 62, VCLT] otherwise known as rebus Philippine law makes a distinction between
sic stantibus treaties and executive agreements. Both are
equally binding, but treaties require the
The doctrine of rebus sic stantibus is a concurrence of the Senate to be effective,
principle in customary international law while executive agreements do not.
providing that where there has been a
fundamental change of circumstances Under international law, there is no difference
since an agreement was concluded, a between treaties and executive agreements in
party to that agreement may withdraw from terms of their binding effects on the contracting
or terminate it. Article 62 of the VCLT is states concerned, as long as the negotiating
considered as a codification of customary functionaries have remained within their
international law [(Gabcikovo-Nagymaros powers. [Bayan Muna v. Romulo, G.R. No.
Project (ICJ, 1997)] 159618, 2011]
Requisites [Art. 62 (1), VCLT]: Treaties have to be transformed in order to be

1. The existence of those circumstances part of Philippine law. A treaty is “transformed”
constituted an essential basis of the when it is ratified by the Senate [Sec. 21, Art.
consent of the parties to be bound by VII, 1987 Constitution]. After ratification, a
the treaty; and treaty shall be deemed as if legislated by our
2. The effect of the change is radically to legislature.
transform the extent of obligations still
to be performed under the treaty The Department of Foreign Affairs has the
3. The change of circumstances was not power to determine whether an international
foreseen. agreement is a treaty or an executive
agreement [Sec. 9, E.O. 459].
When Fundamental Change of
Circumstances cannot be invoked (Art. Executive Agreements differentiated from
62 (2), VCLT): Treaties
1. If the treaty establishes a boundary; or TREATIES EXECUTIVE
2. If the fundamental change is the result AGREEMENT
of a breach by the party invoking it S
either of an obligation under the treaty As to Political Transitory
or of any other international obligation Subject issues; effectivity;
owed to any other party to the treaty. Matte Changes in
national Adjusts details
policy; to carry out
Page 416 of 439

well
Involves established The fact that international law has been
agreements national made part of the law of the land does not
of a policies and pertain to or imply the primacy of
permanent traditions; international law over national or municipal
character law in the municipal sphere.
Temporary;
The doctrine of incorporation, as applied in
Implements most countries, decrees that rules of
treaties, international law are given equal standing with,
statutes, but are not superior to, national legislative
policies enactments. Accordingly, the principle lex
As to Requires Does not posterior derogat priori takes effect [and] a
Ratificatio ratification require Senate treaty may repeal a statute and a statute may
n by two- Concurrence repeal a treaty.
thirds (2/3)
of the In states where the Constitution is the highest
Senate law of the land, such as the Republic of the
[Sec. 21, Philippines, both statutes and treaties may be
Art. VII, invalidated if they are in conflict with the
1987 constitution [Secretary of Justice v. Lantion,
Constitution G.R. No. 139465 (2000)].
]
As to Can repeal Cannot amend I. DOCTRINE OF STATE
Effect on a statute or repeal a
Municipal and prior law and RESPONSIBILITY
Law can be cannot prevail
repealed by over a General Principles
a subsequent la Relevant Text: Articles on State Responsibility
statute (“ASR”)
When there is Conflict between a Treaty Every internationally wrongful act of a state
and Municipal Law entails the international responsibility of that
The doctrine of incorporation is applied State [Art. 1, ASR].
whenever municipal tribunals are confronted
with situations in which there appears to be a Elements of an Internationally Wrongful Act:
conflict between a rule of international law and There is an internationally wrongful act of a
the provisions of the constitution or statute of state when the conduct consisting of an action
the local state. Efforts must be done to give or omission:
effect to both since it is to be presumed that a. Is attributable to the State under
municipal law was enacted with proper regard international law; and
for the generally accepted principles of b. Constitutes a breach of an international
international law in observance of the obligation of a State [Art. 2, ASR].
Incorporation Clause.
The characterization of an act of a state as
In a situation, however, where the conflict is internationally wrongful is governed by
irreconcilable and a choice has to be made international law. Such characterization is not
between a rule of international law and affected by the characterization of the same act
municipal law, jurisprudence dictates that as lawful by internal law [Art. 4, ASR].
municipal law should be upheld by the
municipal courts. Theory of Objective or Strict Liability
Page 417 of 439

With respect to state responsibility, the theory An act of the former State under international
provides that fault is unnecessary for State law if the organ is acting in the exercise of
responsibility to be incurred. elements of the governmental authority of the
State at whose disposal it is placed.
ATTRIBUTION
d. Excess of authority or contravention of
Attribution or imputability is a legal construct instructions [Article 7, ASR]
whereby an internationally unlawful conduct of
a State organ acting in that capacity is If the organ, person or entity acts in that
regarded as the conduct of the State itself, capacity, even if it exceeds its authority or
making that State responsible for it as an contravenes instructions. Unauthorized or Ultra
internationally wrongful act. Vires acts.
It proceeds from the theory that as an abstract e. Conduct directed or controlled by a

entity, the State can physically act only through State [Article 8, ASR]
individuals or groups of individuals performing
"acts of the State" on its behalf (Differences If the person or group of persons is in fact
Relating to Immunity from Legal Processes of acting on the instructions of, or under the
a Special Rapporteur of the Commission of direction or control of, that State in carrying out
Human Rights (38 International Legal Materials the conduct.
873. 1999]).
Effective Control
a. Conduct of organs of a state [Article 4, Under the law on state responsibility, a State is
ASR] responsible only for the acts of its organs and
over non-state actors over which it exercised
The conduct of any State organ shall be effective control [Nicaragua case (ICJ,
considered an act of that State whether the 1986)]. This means that it should have given
organ exercises legislative, executive, judicial instructions or provided the direction pursuant
or any other functions, whatever position it to which the perpetrators of the wrongful act
holds in the organization of the State. acted.
An organ includes any person or entity which Overall Control

has that status in accordance with the internal In the Application of the Convention on the
law of the State. Prevention and Punishment of the Crime of
Genocide Case (ICJ, 2007), the ICJ ruled that
b. Conduct of persons or entities the “over-all control test” was only relevant in
exercising elements of governmental so far as the question of characterization of the
authority [Article 5, ASR] Yugoslav conflict as an international armed
conflict, or whether or not the conflict has been
The conduct of a person or entity (not falling internationalized; it is not relevant to the task of
under a) but is empowered by the law of that determining whether a state is responsible for
State to exercise elements of the governmental the acts of certain non-state organs involved in
authority shall be considered an act of the that same international armed conflict.
State, provided the person or entity is acting in
that capacity. Effective Control Overall Control
Control must have Control must have
c. Conduct of organs placed at the been exercised in gone “beyond the
disposal of a State by another State respect to each mere financing and
[Article 6, ASR] individual act or equipping of such
omission which forces” and must
have “participation in
Page 418 of 439

constitutes the the planning and This is without prejudice to the attribution to a
breach. supervision of State of any conduct, however related to that of
The private persons military operations.” the movement concerned, which is to be
or groups must have considered an act of that State by virtue of
been mere agents of articles 4 to 9.
the state who were
told what had to be h. Conduct acknowledged and adopted by
done at all stages. a State as its own [Article 11, ASR]
This provides a This presents a
higher threshold for lower threshold for Conduct shall be considered an act of that
attribution. attribution. State if and to the extent that the State
A general situation of There need not be a acknowledges and adopts the conduct in
dependence and showing of actual or question as its own.
support would thus direct control.
be insufficient to CIRCUMSTANCES PRECLUDING
justify attribution. WRONGFULNESS (Defenses)
This refers to the This refers to the
matter of state matter of individual Although a State which fails to act in conformity
responsibility. criminal with an international obligation will typically be
responsibility and subject to international responsibility for the
the application of the wrongful act, the State may be excused from
rules of international performance of an international obligation
humanitarian law if circumstances precluding wrongfulness
[e.g. Prosecutor v. are present.
Tadic (ICTY Appeals
Chamber, 1995)]. a. Consent [Article 20, ASR]
f. Conduct carried out in the absence or Valid consent by a State to the commission of
default of the official authorities [Article a given act by another State precludes the
9, ASR] wrongfulness of that act in relation to the former
State to the extent that the act remains within
If the person or group of persons exercise the limits of that consent.
elements of the governmental authority in the
absence or default of the official authorities and b. Self-Defense [Article 21, ASR]
in circumstances such as to call for the
exercise of those elements of authority. If the act constitutes a lawful measure of self-
defense taken in conformity with the Charter of
g. Conduct of an insurrectional or other the United Nations.
movement [Article 10, ASR]
c. Countermeasures [Article 22, ASR]
The conduct of an insurrectional movement
which becomes the new Government of a State If and to the extent that the act constitutes a
shall be considered an act of that State. countermeasure taken against the latter State
in accordance with the ASR.
The conduct of a movement, insurrectional or
other, which succeeds in establishing a new d. Force Majeure [Article 23, ASR]
State in part of the territory of a pre-existing
State or in a territory under its administration General Rule: If the act is due to force
shall be considered an act of the new State. majeure, that is the occurrence of an irresistible
force or of an unforeseen event, beyond the
control of the State, making it materially
Page 419 of 439

impossible in the circumstances to perform the

obligation. None of the circumstances listed from a) to f)
precludes the wrongfulness of any act of a
Exception State which is not in conformity with an
The above rule does not apply if: obligation arising under a peremptory norm of
1) The situation of force majeure is due, either general international law. [Article 26, ASR]
alone or in combination with other factors,
to the conduct of the State invoking it; or CONSEQUENCES OF AN
2) The State has assumed the risk of that INTERNATIONALLY WRONGFUL ACT
situation occurring.
The international responsibility of a State which
e. Distress [Article 24, ASR] is entailed by an internationally wrongful act
involves legal consequences. [Article 28, ASR]
General Rule: If the author of the act in
question has no other reasonable way, in a The legal consequences of an internationally
situation of distress, of saving the author’s wrongful act under this part do not affect the
life or the lives of other persons entrusted continued duty of the responsible State to
to the author’s care. perform the obligation breached. [Article 29,
ASR]
Exceptions
i. The situation of distress is due, a. Cessation and non-repetition
either alone or in combination with
other factors, to the conduct of the The State responsible for the wrongful act is
State invoking it; or under the obligation to:
ii. The act in question is likely to 1. Cease the act if it is still continuing; and
create a comparable or greater 2. Offer appropriate assurances and
peril. guarantees of non-repetition, if
circumstances so require [Art. 30, ASR].
f. Necessity [Article 25, ASR]
b. Reparation
Elements
1. It is the only way for the State to The responsible State is under an obligation to
safeguard an essential interest against make full reparation for the injury caused by the
a grave and imminent peril; and internationally wrongful act.
2. It does not seriously impair an essential
interest of the State or States towards Injury includes any damage, whether material
which the obligation exists, or of the or moral, caused by the internationally wrongful
international community as a whole. act of a State.
Cannot be invoked if: “Full reparation” means that the responsible

1. the international obligation in question State must endeavor to wipe out all the
excludes the possibility of invoking consequences of the illegal act and reestablish
necessity; or the situation which would, in all probability,
2. the State has contributed to the have existed if that act had not been committed
situation of necessity. [Factory at Chorzów (PCIJ, 1928)]. This may
be achieved by one form of reparation only or
Other Principles by a combination of the different forms [ASR
The responsible State may not rely on the Draft Articles].
provisions of its internal law as justification for
failure to comply with its obligations under this “Material” Damage: refers to damage to
part. [Article 32, ASR] property or other interests of the State and its
Page 420 of 439

nationals which is assessable in financial punish the responsible State, nor does
terms. compensation have an expressive or
exemplary character [ASR Draft Articles].
“Moral” Damage: includes such items as
individual pain and suffering, loss of loved ones 3. Satisfaction [Article 37, ASR]
or personal affront associated with an intrusion
on one’s home or private life. (ASR Draft The State responsible is under an obligation to
Articles) give satisfaction for the injury caused by that
act insofar as it cannot be made good by
FORMS restitution or compensation.
Full reparation for the injury caused by the Satisfaction may consist in an
internationally wrongful act shall take the form acknowledgement of the breach, an
of restitution, compensation and satisfaction, expression of regret, a
either singly or in combination. (Article 34, formal apology or another appropriate
ASR) modality.
1. Restitution [Article 35, ASR] Satisfaction shall not be out of proportion to the
injury and may not take a form humiliating to
A State responsible for an internationally the responsible State.
wrongful act is under an obligation to make
restitution, that is, to re-establish the situation Satisfaction is of exceptional character. It is
which existed before the wrongful act was only in cases where restitution or
committed, provided and to the extent that compensation have not provided full reparation
restitution: that satisfaction may be required [ASR Draft
(a) is not materially impossible; Articles].
(b) does not involve a burden out of all
proportion to the benefit deriving fro It is the remedy for injuries not financially
restitution instead of compensation. assessable. These injuries are frequently of a
symbolic character, arising from the very fact of
Restitution consists only in re-establishing the breach of the obligation, irrespective of its
the status quo ante, i.e. the situation that material consequences for the State
existed prior to the occurrence of the wrongful concerned [Id.].
act, and does not require a hypothetical inquiry
into what the situation would have been if the Other Principles
wrongful act had not been committed. Interest on any principal sum due under this
Restitution in this narrow sense may therefore chapter shall be payable when necessary in
have to be completed by compensation to order to ensure full reparation. The interest rate
ensure full reparation for the damage caused and mode of calculation shall be set so as to
[ASR Draft Articles]. achieve that result. [Article 38, ASR]
2. Compensation [Article 36, ASR] Contribution to the Injury

In the determination of reparation, account
The State responsible is under an obligation to shall be taken of the contribution to the injury
compensate for the damage caused thereby, by willful or negligent action or omission of the
insofar as such damage is not made good by injured State or any person or entity in relation
restitution. to whom reparation is sought. [Article 39, ASR]
Compensation corresponds to the financially

assessable damage suffered by the injured
State or its nationals. It is not concerned to
Page 421 of 439

c. He has acquired a new nationality, and

J. REFUGEES enjoys the protection of the country of his
new nationality; or
d. He has voluntarily re-established himself in
General Principles the country which he left or outside which
Reference Treaty: The 1951 Convention he remained owing to fear of persecution;
Relating to the Status of Refugees (“1951 or
Convention”), the 1967 Protocol Relating to the e. He can no longer continue to refuse to avail
Status of Refugees (“1967 Protocol”). himself of the protection of the country of
his nationality because the circumstances
Definition in connection with which he has been
A person outside the country of his recognized as a refugee have ceased to
nationality owing to a well-founded fear of exist;
being persecuted for reasons of race, religion, f. Being a person who has no nationality he
nationality, membership of a particular social is, able to return to the country of his former
group or political opinion, is and is unable or, habitual residence [Article 1, C, 1951
owing to such fear, is unwilling to avail himself Convention]
of the protection of that country; or who, not
having a nationality and being outside the General Obligations of Refugees
country of his former habitual residence as a Every refugee has duties to the country in
result of such events, is unable or, owing to which he finds himself, which require in
such fear, is unwilling to return to it. [Article 1A particular that he conform to its laws and
(1), 1951 Convention]. regulations as well as to measures taken for
the maintenance of public order. [Article 2,
The term “the country of his nationality” shall 1951 Convention]
mean each of the countries of which he is a
national, and a person shall not be deemed to Non-Discrimination
be lacking the protection of the country of his States shall apply the provisions of this
nationality if, without any valid reason based on Convention to refugees without discrimination
well-founded fear, he has not availed himself of as to race, religion or country of origin. [Article
the protection of one of the countries of which 3, 1951 Convention]
he is a national.
Personal Status
Refugees v. Internally Displaced Persons The personal status of a refugee shall be
Refugees are people as defined above while governed by the law of the country of his
internally displaced persons are those who domicile or, if he has no domicile, by the law of
have been forced to flee their homes, suddenly the country of his residence. [Article 12, 1951
or unexpectedly in large numbers as a result of Convention]
armed conflict, internal strife, systematic
violation of human rights, or natural or man- Rights previously acquired by a refugee and
made disaster, and, who are within their dependent on personal status, more
territory of their country. (Analytical Report of particularly rights attaching to marriage, shall
the United Nations’ Secretary-General on be respected by a Contracting State, subject to
Internally Displaced Persons, February 14, compliance, if this be necessary, with the
1992) formalities required by the law of that State,
provided that the right in question is one which
The convention will not apply to refugees if: would have been recognized by the law of that
a. He has voluntarily re-availed himself of the State had he not become a refugee. [Article 12,
protection of the country of his nationality; 1951 Convention]
b. Having lost his nationality, he has
voluntarily re-acquired it; or Rights of a Refugee
Page 422 of 439

Among those enumerated in the 1951 c. Permission to transfer assets

Convention are: necessary for their resettlement in
1. Non-discrimination of application (for another country [Art. 30(2)]
refugee status) based on race, religion, or 9. To not be expelled [Arts. 32 and 33]
country of origin [Art. 3] 10. To not be penalized for illegal entry until
2. To be treated similar to nationals with their status in the country is regularized or they
respect to the following: Right to Religion obtain admission into another country [Art. 31]
[Art. 4]
a. Right to Religion [Art. 4] Principle of Non-Refoulment
b. Rationing system (when supplies General Rule: No State shall expel or return
are short) [Art. 20] (“refouler”) a refugee in any manner
c. Elementary education [Art 22(1)] whatsoever to the frontiers of territories where
d. Public Relief [Art. 23] his life or freedom would be threatened on
e. Labour Legislation and Social account of his race, religion, nationality,
Security [Art. 24(1)] membership of a particular social group or
f. Fiscal Charges [Art. 29] political opinion. [Article 33, 1951 Convention]
3. To be accorded the same treatment as an
alien or foreign national with respect to the Exception: The benefit be claimed by a
following: refugee whom there are reasonable grounds
a. To have his personal status for regarding as a danger to the security of the
respected [Art. 12] country in which he is, or who, having been
b. To acquire movable and convicted by a final judgment of a particularly
immovable property [Art. 13] serious crime, constitutes a danger to the
c. Protection of industrial property community of that country. [Article 33, 1951
and rights in literacy, artistic, and Convention]
scientific works [Art. 14]
d. Right of Association [Art. 15]
e. Access to Courts [Art. 16] K. TREATMENT OF
f. Wage-earning employment [Art. ALIENS
17]
g. Self-employment [Art. 18]
The General Rule on Standard of Treatment
h. To practice liberal profession [Art.
Flowing from its right to existence and as an
19]
attribute of sovereignty, no state is under any
i. Housing [Art. 21]
obligation to admit aliens. The state can
j. Education other than elementary
determine in what cases and under what
[Art. 22(2)]
conditions it may admit such. Once it admits
4. Administrative Assistance [Art. 25]
aliens, under the international standard
5. Freedom of movement [Art. 26]
of justice, which calls for compliance with the
6. To be issued travel documents [Art. 28(1)]
ordinary norms of official conduct observed in
7. Be permitted to transfer their assets [Art.
civilized jurisdictions, aliens should be
30(1)]
protected by certain minimum standards of
8. Sympathetic considerations as regards the
humane protection, however harsh the
following:
municipal laws of a state may be.
a. Extension of benefits similar to
death benefits or social security
Territorial sovereignty involves the exclusive
[Art. 24(4)]
right to display the activities of a State. This
b. Issuance of travel documents to
right has a corollary, a duty: the obligation to
refugees who are unable to obtain
protect within the territory the rights of other
a travel document from the country
States, in particular, their right to integrity and
of their lawful residence [Art. 28(1)]
inviolability in peace and in war, together with
Page 423 of 439

the rights which each State may claim for its Diplomatic protection consists of the invocation
nationals in foreign territory [Island of Las by a State, through diplomatic action or other
Palmas Arb. (PCA, 1928)]. means of peaceful settlement, of the
responsibility of another State for an injury
However, an alien cannot claim a preferred caused by an internationally wrongful act of
position vis-à-vis the national of the state [see that State to a natural or legal person that is a
Calvo Clause, infra]. national of the former State with a view to the
implementation of such responsibility.
State Responsibility when it comes to
Treatment of Aliens Who is entitled to exercise Diplomatic
A state may be held responsible for: Protection [Art. 3, ADP]
a. An international delinquency; 1. The State of nationality
b. Directly or indirectly imputable to it; 2. Notwithstanding paragraph 1, diplomatic
c. Which causes injury to the national of protection may be exercised by a State in
another state respect of a person that is not its national
in accordance with draft article 8.
Liability will attach to the state where its
treatment of the alien falls below the Requirement of exhaustion of local
international standard of justice or where it is remedies before presentation of
remiss in according him the protection or international claim [Art. 14, ADP]:
redress that is warranted by the circumstances. 1. A State may not present an international
claim in respect of an injury to a national
The propriety of governmental acts should be or other person before the injured
put to the test of international standards. The person has exhausted all local
treatment of an alien, in order to constitute an remedies.
international delinquency, should amount to 2. “Local remedies” means legal remedies
an outrage, to bad faith, to willful neglect of which are open to an injured person before
duty, or to an insufficiency of governmental the judicial or administrative courts or
action so far short of international bodies, whether ordinary or special, of the
standards that every reasonable and State alleged to be responsible for causing
impartial man would readily recognize its the injury.
insufficiency [Neer Case (PCIJ, 1926)]. 3. Local remedies shall be exhausted where
an international claim, or request for a
How To enforce the International declaratory judgement related to the claim,
Responsibility arising from the is brought preponderantly on the basis of
International Delinquency an injury to a national or other person.
There must be:
a. Exhaustion of local (refers to the State Exception to requirement of Exhaustion of
where the international delinquency Local Remedies [Art. 15, ADP]:
happened) administrative remedies; and Local remedies do not need to be exhausted
b. Representation of the alien by his own where:
state (this refers to the exercise of a. there are no reasonably available local
diplomatic protection) in the international remedies to provide effective redress, or
claim for damages. the local remedies provide no reasonable
possibility of such redress;
Rules on Diplomatic Protection from the b. there is undue delay in the remedial
Draft Articles on Diplomatic Protection process which is attributable to the State
(ADP), 2006: alleged to be responsible;
c. there was no relevant connection between
Definition of Diplomatic Protection [Art. 1, the injured person and the State alleged to
ADP] be responsible at the date of injury;
Page 424 of 439

d. the injured person is manifestly precluded 2. The criminal charges that are pending in
from pursuing local remedies; or the HKSAR against the person to be
e. the State alleged to be responsible has extradited;
waived the requirement that local 3. The crimes for which the person to be
remedies be exhausted extradited is charged are extraditable
within the terms of the treaty;
The Calvo Clause 4. The individual before the court is the same
Definition person charged in the HKSAR;
This refers to a stipulation which states that the 5. The evidence submitted establishes
foreign party must rely exclusively on local probable cause to believe that the person
remedies and not seek any diplomatic to be extradited committed the offenses
protection. charged; and
6. The offenses are criminal in both the
1. Extradition HKSAR and the Philippines (double
criminality rule).
Definition [Government of Hongkong Special
Extradition is the surrender by one nation to Administrative Region v. Muñoz, G.R. No.
another of an individual accused or convicted 207342 (2016)]
of an offense outside of its own territory, and
within the territorial jurisdiction of the other, a. FUNDAMENTAL PRINCIPLES ON
which, being competent to try and to punish EXTRADITION
him, demands the surrender. [Government of
Hongkong Special Administrative Region v. i. The duty to extradite must be
Muñoz, G.R. No. 207342 (2016)] based on treaty
Extradition has thus been characterized as the It is not part of customary international law,
right of a foreign power, created by treaty, to although the duty to extradite exists only for
demand the surrender of one accused or some international crimes. Thus, a state must
convicted of a crime within its territorial extradite only when obliged by treaty to do so.
jurisdiction, and the correlative duty of the other [Government of Hongkong Special
state to surrender him to the demanding state. Administrative Region v. Muñoz, G.R. No.
[Government of Hong Kong Special 207342 (2016)]
Administrative Region v. Olalia, G.R. No.
153675 (2007)] Principle of specialty
A fugitive who is extradited may be tried only
It also refers to the removal of an accused from for the crime specified in the request for
the Philippines with the object of placing him at extradition and included in the list of offenses
the disposal of foreign authorities to enable the in the extradition treaty [US v. Rauscher, 119
requesting state or government to hold him in U.S. 407 (1886)].
connection with any criminal investigation
directed against him in connection with any Rule of Double Criminality
criminal investigation directed against him or The act for which extradition is sought must be
the execution of a penalty imposed on him punishable in both the requesting and
under the penal or criminal law of the requested states. [Government of Hongkong
requesting state or government [Section 2(a), Special Administrative Region v. Muñoz, G.R.
P.D. 1069] No. 207342 (2016)]
Requisites for Extradition to be exercised ii. It is a sui generis proceeding

1. There must be an extradition treaty in force
between the HKSAR and the Philippines; An extradition proceeding is sui generis. It is
not a criminal proceeding which will call into
Page 425 of 439

operation all the rights of an accused as

guaranteed by the Bill of Rights [Sec. of Justice c. Extradition v. Deportation
v. Lantion, G.R. No. 139465, (2000)]
Extradition Deportation
iii. Bail may be granted to the
extraditee on the basis of clear Effected at the Unilateral Act of the
and convincing evidence that he request of another State
is not a flight risk State
The potential extraditee must prove by “clear Based on offenses Based on causes
and convincing evidence” that he is not a flight committed in the arising in the local
risk and will abide with all the orders and state of origin state
processes of the extradition court.
[Government of Hong Kong Special Calls for the return of An undesirable alien
Administrative Region v. Olalia, G.R. No. the fugitive to the may be deported to a
153675 (2007)] requesting state state other than his
own or his state of
iv. There must be compliance with origin.
procedural due process
The Obligation of aut dedere aut judicare (to
b. PROCEDURE extradite or prosecute)
A conventional obligation of States found in
1. A request for extradition is presented various treaties. A state subject to this
through diplomatic channels to the state of obligation is bound to extradite if it does not
refuge with the necessary papers for prosecute, and to prosecute if it does not
identification. extradite.
2. The request is received by the state of
refuge. The effective fulfilment of the obligation to
3. A judicial investigation is conducted by the extradite or prosecute requires
state of refuge to ascertain if the crime is a. undertaking necessary national measures
covered by the extradition treaty and if to criminalize the relevant offences,
there is a prima facie case against the b. establishing jurisdiction over the offences
fugitive according to its own laws. and the person present in the territory of
4. If there is a prima facie case, a warrant of the State,
surrender will be drawn and the fugitive will c. investigating or undertaking primary
be delivered to the state of origin. The inquiry,
evaluation process partakes the nature of d. apprehending the suspect, and submitting
a criminal investigation, having the case to the prosecuting authorities
consequences which will result in (which may or may not result in the
deprivation of liberty of the prospective institution of proceedings)
extraditee. A favorable action in an
extradition request exposes a person to OR
eventual extradition to a foreign country,
thus exhibiting the penal aspect of the Extraditing, if an extradition request is
process. made by another State with the necessary
jurisdiction and capability to prosecute the
The evaluation process itself is like a suspect. (Final Report of the International
preliminary investigation since both procedures Law Commission on the Obligation of Aut
may have the same result: the arrest and dedere aut judicare (2014))
imprisonment of the respondent. [Secretary of
Justice v. Lantion, G.R. No. 139465 (2000)]
Page 426 of 439

L. INTERNATIONAL
1. The Universal Declaration of
HUMAN RIGHTS LAW Human Rights (“UDHR”)
Definition of Human Rights
The UDHR is the first comprehensive
Human rights are those fundamental and
catalogue of human rights proclaimed by an
inalienable rights which are essential for life as
international organization.
a human being. They are recognized by the
international community as a whole through
It is not a treaty. It has no obligatory character
their protection and promotion under
because it was adopted by the UN General
contemporary international law.
Assembly as Resolution 217A (III). As a
resolution, it is merely recommendatory.
Definition of International Human Rights
Law
Accordingly, it has been observed that the
International human rights law lays down the
Universal Declaration of Human Rights no
obligations of Governments to act in certain
longer fits into the dichotomy of “binding treaty”
ways or to refrain from certain acts, in order to
against “non-binding pronouncement”, but is
promote and protect human rights and
rather an authoritative statement of the
fundamental freedoms of individuals or groups.
international community. Thus, a Declaration
[United Nations, Global Issue]
creates an expectation of adherence, and
insofar as the expectation is gradually justified
Classifications of Human Rights
by State practice, a declaration may by custom
1. First generation rights consist of civil and
become recognized as laying down rules
political rights;
binding upon the States. Indeed, several
2. Second generation rights consist of
commentators have concluded that the
economic, social and cultural rights;
Universal Declaration has become, in toto, a
3. Third generation rights consist of the rights
part of binding, customary international law.
to development, to peace, and to
[Razon v. Tagitis, G.R. No. 182498 (2009)
environment [VASAK, KAREL]
citing Filartiga v. Pena-Irala, 630 F.2d 876 (2d
Cir. 1980)]
The distinction between first generation
and second generation human rights
In the Philippines, the UDHR is considered as
As to Obligatory Force customary international law. Universal
Declaration of Human Rights ("UDHR") has
1st Generation Rights are STRICTLY or
been interpreted by this Court as part of the
OBJECTIVELY OBLIGATORY, whatever the
economic condition or other conditions of the generally accepted principles of international
law and binding on the State. [Poe-
state obliged. 2nd Generation Rights are
Llamanzares v. Comelec; G.R. No. 221697,
RELATIVELY or SUBJECTIVELY
OBLIGATORY, states are required to (2016)]
progressively achieve the full realization of
these rights “to the maximum of their available The UDHR embodies both first and second
resources”. generation rights.
As to derogation The civil and political rights (1st Generation

Rights) enumerated in the UDHR include right
1st Generation rights are derogable only in
times of public emergency. 2nd Generation such as:
Rights may be restricted for the general a. The right to life, liberty, privacy and security
welfare, with or without an “emergency that of person;
threatens the independence or security of a b. Prohibition against slavery;
state party”.
Page 427 of 439

c. The right not to be subjected to arbitrary i. The right of every child to nationality;
arrest, detention or exile; j. The right to protection of a child as required
d. The right to fair trial and presumption of by his status as a minor;
innocence; k. The right of persons below 18 years old not
e. The right to a nationality; to be sentenced to death for crimes;
f. The right to freedom of thought, l. The right against the carrying out of death
conscience and religion; sentence on the part of a pregnant woman.
g. The right to freedom of opinion and
expression; The following are obligations of state parties
h. The right to peaceful assembly and under the ICCPR:
association; a. State parties undertake to respect and to
i. The right to take part in the government of ensure to all individuals within their territory
his country. the rights enumerated therein, without
distinction of any kind, such as race, color,
The Economic, social and cultural rights sex, language, religion, political or other
enumerated in the UDHR include rights such opinion, national or social origin, birth or
as: other status.
a. The right to social security; b. State parties are required to take the
b. The right to work and protection against necessary steps to adopt legislative or
unemployment; other measures that are necessary to give
c. The right to equal pay for equal work; effect to the rights recognized in the
d. The right to form and join trade unions; ICCPR.
e. The right to rest and leisure. c. State parties must ensure that any person
whose rights or freedoms are violated have
Note: See Articles 3-28 of the UDHR for a an effective remedy, notwithstanding that
complete enumeration of the rights. the violation has been committed by
persons action in an official capacity.
2. The International Covenant d. State parties must ensure that any person
claiming such remedy shall have his right
on Civil and Political Rights thereto determined by competent judicial,
(“ICCPR”) administrative or legislative authority, and
that they shall enforce the remedy when
It embodies the first generation of human granted
rights, although it lists more rights than the e. To ensure that the competent authorities
UDHR, namely: shall enforce such remedies when granted.
a. The right to own property;
b. The right to seek in other countries asylum 3. The International Covenant
from prosecution;
c. The right of members of ethnic, religious or on Economic, Social and
linguistic groups not to be denied to enjoy Cultural Rights (“ICESCR”)
their own culture, to profess and practice
their own religion, or to use their own It embodies the second generation of human
language; rights, although it lists more rights than the
d. The right to compensation in case of UDHR, namely:
unlawful arrest; a. The right to health;
e. The right to legal assistance in criminal b. The right to strike;
prosecution; c. The right to be free from hunger;
f. The right against self-incrimination; d. The right to enjoy the benefits of scientific
g. Protection against double jeopardy; progress;
h. The right to review by higher tribunal in e. Freedom for scientific research and
case of criminal conviction; creativity.
Page 428 of 439

Committee has opined that

The obligation of a state party to the ICESCR the reference to “sex” in
is to undertake the necessary steps to the Article 26 should be
maximum of its available resources, with a construed to include
view to achieving progressively the full “sexual orientation”.
realization of the rights enumerated in the
covenant by all appropriate means. o On the right to nationality [Poe-
Llamanzares v. Comelec; G.R. No.
COMMON PROVISIONS IN THE ICCPR AND 221697, (2016)]:
ICESCR ○ The common thread of the
The common provisions of the two covenants UDHR, UNCRC and
deal with collective rights, namely: ICCPR is to obligate the
1. The right of self-determination of peoples; Philippines to grant
2. The right of peoples to freely dispose of nationality from birth and
their natural wealth and resources; and ensure that no child is
3. The right of peoples not to be deprived of stateless.
their own means of subsistence.
These rights were not covered by the UDHR.

M. INTERNATIONAL
HUMANITARIAN LAW
Philippine Jurisprudence on Human Rights
• On enforced disappearances (Razon v. International Humanitarian Law (hereinafter
Tagitis, G.R. No. 182498 (2009): “IHL”) is the branch of public international law
o Any act of enforced disappearance is which governs armed conflicts to the end that
an offence to dignity. It is condemned the use of violence is limited and that human
as a denial of the purposes of the suffering is mitigated or reduced by regulating
Charter of the United Nations and as a or limiting the means of military operations and
grave and flagrant violation of human by protecting those who do not or no longer
rights and fundamental freedoms participate in the hostilities.
proclaimed in the Universal Declaration
of Human Rights and reaffirmed and This used to be known as the Laws of War
developed in international instruments which provides for instances when the use of
in this field. armed force is justifiable (jus ad bellum) and
o On the principle of non-discrimination regulates the conduct of armed conflict (jus in
vis-à-vis the right to electoral bello).
participation [Ang Ladlad LGBT Party
vs. Commission on Elections; G.R. No.
IHL IHRL
190582, (2010)]
○ The principle of non- Application
discrimination requires that
laws of general application In situations of At all times; during
relating to elections be armed conflict war and peace time
applied equally to all
persons, regardless of Purpose
sexual orientation.
Although sexual orientation Protect people who Protect individuals
is not specifically do not or are no from arbitrary
enumerated as a status or longer taking part in behavior by their
ratio for discrimination in hostilities. own governments.
Article 26 of the ICCPR, the
ICCPR Human Rights
Page 429 of 439

Derogation 4. As to enable it to carry out sustained and

concerted military operations and to
implement the Protocol.
No derogations are Some HR treaties
permitted under IHL permit governments
Armed conflict does not include internal
to derogate from
disturbances or tensions such as:
certain rights, in
1. Riots;
situations of public
2. Isolated and sporadic acts of violence; and
emergency.
3. Other acts of a similar nature.
1. Categories of Armed Conflict: c. War of National Liberation
a. International Armed Conflicts (IAC) Armed conflicts in which people are fighting
against colonial domination and alien
Definition: An international armed conflict occupation and against racist regimes in the
occurs when one or more states have recourse exercise of their right to self-determination
to armed force against another state [Protocol I, Art. 1(4)].
[Prosecutor v. Tadic (ICTY Appeals Chamber,
1995)], regardless of the reasons or the Categories:
intensity of the confrontation. 1. Colonial domination;
2. Alien occupation; and
b. Internal or Non-International 3. Racist regimes when the peoples
oppressed by these regimes are fighting for
Armed Conflicts (NIAC)
self-determination.
Definition: This refers to conflicts between
governmental forces and non-governmental 2. Core International Obligation
armed groups, or between such groups only. of States
Basis: The Common Article 3, Geneva In general, IHL defines the following
Conventions, and Article 1, Additional Protocol obligations:
II. a. Parties to an armed conflict, together with
their armed forces, do not have unlimited
Common Article 3 applies to “armed conflicts choice of methods or means of warfare.
not of an international character occurring in They are prohibited from employing
the territory of one of the High Contracting weapons or means of warfare that cause
Parties.” These include armed conflicts in unnecessary damage or excessive
which one or more non-governmental armed suffering.
groups are involved. b. Parties to an armed conflict shall, at all
times, distinguish between civilian
Article 1 develops Common Article 3. It applies population and the combatants (principle of
to: distinction). Civilians shall be spared from
1. All armed conflicts which take place in the military attacks which shall be directed only
territory of a state party; against military objectives.
2. Between its armed forces and dissident c. Persons hors de combat shall be protected
armed forces or other organized groups; and treated humanely without any adverse
3. Which, under responsible command, distinction. Their right to life and physical
exercise such control over a part of its and moral integrity shall be respected.
territory; d. It is prohibited to kill or injure an enemy who
is hors de combat or who surrenders.
Page 430 of 439

e. The wounded and the sick shall be a. Treatment of Civilians

protected and cared for by the party to the
conflict which has them in its power. For purposes of protection, civilians are further
Protection shall also apply to medical classified as:
personnel, establishments, transports and i. Civilians who are victims of conflict in
material. countries involved;
f. Combatants and civilians who are captured ii. Civilians in territories of the enemy;
by authority of the party to a dispute are iii. Civilians in occupied territories; and
entitled to respect for their right to life, iv. Civilians internees.
dignity, conviction, and other personal
rights. They shall be protected against acts Martens Clause/Principle of Humanity
of violence or reprisals [Legality of the In cases not covered by other international
Threat or Use of Nuclear Weapons agreements, civilians and combatants remain
Advisory Opinion (ICJ, 1996)]. under the protection and authority of the
principles of international law derived from
3. Principles of International established custom, from the principles of
humanity and from the dictates of public
Humanitarian Law conscience.
Combatants
The Principle of Military Necessity
These are members of the armed forces of a
The belligerent may employ any amount of
party to a conflict [Art. 3(2), Protocol 1]. They
force to compel the complete submission of the
have the right to participate directly and
enemy with the least possible loss of lives, time
indirectly in hostilities [Art. 43(2), Protocol 1].
and money.
Only combatants are allowed to engage in
hostilities.
The Principle of Proportionality
The legal use of force whereby belligerents
Hors de Combat
must make sure that harm caused to civilians
Under Art. 41(2), Protocol I, a person is hors de
or civilian property is not excessive in relation
combat if:
to the concrete and direct military advantage
1. He is in the power of an adverse party to
from an anticipated attack or by an attack on
the conflict;
military objective.
2. He clearly expresses an intention to
surrender; or
3. He has been rendered unconscious or is
b. Prisoners of War
otherwise incapacitated by wounds or
sickness and is therefore incapable of Under Art. 4, Geneva Convention (III),
defending himself; provided that in any of prisoners of war are persons belonging to one
these cases, he abstains from any hostile of the following categories:
act and does not attempt to escape. 1. Members of the armed forces of a party to
the conflict, including militias or volunteer
Protected Persons corps;
They are those who enjoy or are entitled to 2. Militias or volunteer corps operating in or
protection under the Geneva Conventions. outside their own territory, even if such
territory is occupied, provided:
Categories of protected persons include: a. They are being commanded by a
person responsible for his
1. The wounded, the sick, and shipwrecked;
subordinates;
2. Prisoners of war; and
3. Civilians. b. Have a fixed distinctive sign
recognizable at a distance;
c. Carry arms openly; and
Page 431 of 439

d. Conduct their operations in Neutrality is the legal status of a State in times

accordance with the laws and of war, by which it adopts impartiality in relation
customs of war. to the belligerents with their recognition.
3. Members of regular armed forces who
profess allegiance to a government or The Geneva Convention (III) allows neutral
authority not recognized by the detaining powers to cooperate with the parties to the
power; armed conflict in making arrangements for the
4. Civilians who accompany the armed accommodation in the former’s territory of the
forces, provided that they have received sick and wounded prisoners of war.
authorization from the armed forces which
they accompany; The Hague Convention Respecting the Rights
5. Members of crews of merchant marine and and Duties of Neutral Powers (1907) governs
the crews of civil aircraft of the parties to the status of neutrality by the following rules:
the conflict; a. The territory of the neutral power is
6. Inhabitants of a non-occupied territory who inviolable.
on the approach of the enemy b. Belligerents are forbidden to move troops
spontaneously take up arms to resist the or munitions of war and supplies across the
invading forces, without having had time to territory of a neutral power.
form themselves into regular armed units, c. A neutral power is forbidden to allow
provided they carry arms openly and belligerents to use its territory for moving
respect the laws and customs of war; and troops, establishing communication
7. Persons belonging to the armed forces of facilities, or forming corps of combatants.
the occupied territory. d. Troops of belligerent armies received by a
neutral power in its territory shall be
Rights of prisoners of war interned away from the theatre of war.
1. To be treated humanely; e. The neutral power may supply them with
2. Not to be subject to torture; food, clothing or relief required by
3. To be allowed to communicate with their humanity.
families; f. If the neutral power receives escaped
4. To receive food, clothing, religious articles, prisoners of war, it shall leave them at
and medicine; liberty. It may assign them a place of
5. To bare minimum of information; residence if it allows them to remain in its
6. To keep personal belongings; territory.
7. To proper burial; g. The neutral power may authorize the
8. To be grouped according to nationality; passage into its territory of the sick and
9. To the establishment of an informed wounded if the means of transport bringing
bureau; and them does not carry personnel or materials
10. To repatriation for sick and wounded (1949 of war.
Geneva Convention)
A protecting power is a state or an
4. Law on Neutrality organization:
a. Not taking part in the hostilities;
It is the law governing a country’s abstention b. Which may be a neutral state;
from participating in a conflict or aiding a c. Designated by one party to an armed
participant of such conflict, and the duty of conflict with the consent of the other;
participants to refrain from violating the d. To safeguard or protect its humanitarian
territory, seizing the possession, or hampering interests in the conflict, the performance of
the peaceful commerce of the neutral countries which IHL defines specific rights and
[The Three Friends, 166 U.S. 1 (1587)]. duties.
Page 432 of 439

marked on large-scale charts officially

N. LAW OF THE SEA recognized by the coastal state [Art. 5,
UNCLOS].
b. Straight Baseline: where the coastline is
Definition deeply indented or cut into, or if there is a
The United Nations Convention on Law of the fringe of islands along the coast in its
Sea (UNCLOS) is the body of treaty rules and immediate vicinity, the method of straight
customary norms governing the use of the sea, lines joining the appropriate points may be
the exploitation of its resources, and the employed in drawing the baseline from
exercise of jurisdiction over maritime regimes which the breadth of the territorial sea is
[MAGALLONA]. measured [Art. 7, UNCLOS].
It is the branch of public international law which Special Baseline for Archipelagic States
regulates the relations of states with respect to a. Straight baselines join the outermost points
the use of the oceans. of the outermost islands and drying reefs of
an archipelago, provided that within such
Nature of the UNCLOS treaty baselines are included the main islands
UNCLOS III has nothing to do with the and an area in which the ratio of the water
acquisition (or loss) of territory. It is a to the area of the land, including atolls, is
multilateral treaty regulating, among others, between 1 to 1 and 9 to 1.
sea-use rights over maritime zones [Magallona b. The breadth of the territorial sea, the
v. Ermita, G.R. No. 187167 (2011)] contiguous zone, and the exclusive
economic zone, are measured from the
The UNCLOS is a product of international straight archipelagic baselines
negotiation that seeks to balance State
sovereignty (mare clausum) and the principle 2. Archipelagic States
of freedom of the high seas (mare liberum).
The freedom to use the world’s marine It is a state made up of wholly one or more
waters is one of the oldest customary archipelagos. It may include other islands [Art.
principles of international law. The UNCLOS 46, UNCLOS].
gives to the coastal State sovereign rights in
varying degrees over the different zones of the An archipelago is a group of islands, including
sea which are: 1) internal waters, 2) territorial parts of islands, interconnecting waters and
sea, 3) contiguous zone, 4) exclusive other natural features which are so closely
economic zone, and 5) the high seas. [Arigo v. related that such islands, waters and natural
Swift, G.R. No. 206510, 2014)] features form an intrinsic geographical,
economic and political entity, or which
1. Baselines historically have been regarded as such.
The line from which a breadth of the territorial Differentiating Island vs. Rocks
sea and other maritime zones, such as the An island is a naturally formed area of land,
contiguous zone and the exclusive economic surrounded by water, which is above water at
zone, is measured. Its purpose is to determine high tide.
the starting point to begin measuring maritime
zones boundary of the coastal state. Rocks which cannot sustain human habitation
or economic life of their own shall have no
The General Rule is that there are two types of exclusive economic zone or continental shelf
Baselines: [Art. 121, UNCLOS].
a. Normal Baseline: where the territorial sea
is the low-water line along the coast as Types of Archipelagos
Page 433 of 439

Note: UNCLOS only applies to Mid-Ocean to the International Marine Organization, which
archipelagos: will then adopt the Sea Lanes through Art. 53
a. Coastal: situated close to a mainland and (9) of the UNCLOS.
may be considered part thereof (e.g.
Norway); Under Art. 1 of the 1987 Constitution, the
b. Mid-Ocean: situated in the ocean at such archipelagic waters of the Philippines are
distance from the coasts of firm land (e.g. characterized as forming part of “the internal
Philippines). waters of the Philippines.” However, under the
UNCLOS, archipelagic waters consist mainly
Archipelagic Waters of the “waters around, between, and
These are the waters enclosed by the straight connecting the islands of the archipelago,
archipelagic baselines, regardless of their regardless of breadth or dimension.”
depth or distance from the coast [Art 49(1),
UNCLOS]. Moreover, under Art. 47, UNCLOS, it is not
mandatory upon concerned states to declare
They are subject to the sovereignty of the themselves as archipelagic states. The
archipelagic state, but subject to the right of Philippines did so under its new baselines law,
innocent passage for the ships of all states. R.A. No. 9522, which was upheld as
constitutional [Magallona v. Ermita, G.R. No.
Rights in Archipelagic Waters 187167 (2011)].
a. The right of Innocent passage is also
referred to as “archipelagic Sea Lanes 3. Internal waters
Passage”: It is the right of foreign ships and
aircraft to have continuous, expeditious These are waters of lakes, rivers, and bays
and unobstructed passage in sea lanes landward of the baseline of the territorial sea.
and air routes through or over the Waters on the landward side of the baseline of
archipelagic waters and the adjacent the territorial sea also form part of the internal
territorial sea of the archipelagic state, “in waters of the coastal state. However, in case of
transit between one part of the high seas or archipelagic states, waters landward of the
an exclusive economic zone.” All ships and baseline other than those rivers, bays and
aircraft are entitled to the right of lakes, are archipelagic waters [Art. 8(1),
archipelagic sea lanes passage UNCLOS].
[MAGALLONA; Art. 53(1) in relation to Art.
53(3) UNCLOS]. It is considered as part of They are considered as part of the state’s land
international customary law. [Magallona v. territory and are subject to full sovereignty.
Ermita, G.R. No. 187167 (2011)]
b. Rights under existing agreement on the
part of third states should be respected by 4. Territorial Sea
the archipelagic state.
c. Within its archipelagic waters, the These waters stretch up to 12 miles from the
archipelagic state shall recognize baseline on the seaward direction. They are
traditional fishing rights and other subject to the jurisdiction of the coastal state,
legitimate activities of immediately which jurisdiction almost approximates that
adjacent neighboring states. which is exercised over land territory.
d. The archipelagic state shall respect
existing submarine cables laid by other Rights that are available in Territorial Sea
states and “passing through its waters a. Innocent Passage: refers to navigation
without making a landfall.” through the territorial sea without entering
internal waters, going to internal waters, or
How the Archipelagic Sea Lanes are coming from internal waters and making for
determined The archipelagic state proposes it the high seas.
Page 434 of 439

international the proposal and

This is subject to two limitations: organization agreement of states
(i) It must Involve only acts that are bordering the straits
required by navigation or by
distress and 5. Contiguous Zone
(ii) Not prejudice the peace, security,
or good order of the coastal state.
The contiguous zone is that which is
contiguous to its territorial sea. It may not
b. Transit Passage: refers to the right to
extend beyond 24 nautical miles from the
exercise freedom of navigation and over
baselines from which the breadth of the
flight solely for the purpose of continuous
territorial sea is measured.
and expeditious transit through the
straights used for international navigation.
The powers of the Coastal state over the
The right cannot be unilaterally suspended
Contiguous Zone include:
by the coastal state.
a. Control to prevent infringement of its
customs, fiscal, immigration or sanitary
INNOCENT TRANSIT laws and regulations within its territory or
PASSAGE PASSAGE territorial sea; and
Pertains to Includes the right of b. Control to punish infringement of the above
navigation of overflight (i.e. laws and regulations committed within its
ships only pertains to territory or territorial sea.
navigation of aircraft)
Requires Submarines are
submarines and allowed to navigate 6. Exclusive Economic Zone
other underwater in (EEZ)
vehicles to navigate “normal mode” (i.e.
on the surface and submerged) The exclusive economic zone (EEZ) is the
show their flag stretch of area up to 200 miles from the
Can be suspended, Cannot be baselines. Within this zone, a State may
but under the suspended regulate non-living and living resources, other
condition that it does economic resources, artificial installations,
not discriminate scientific research, and pollution control.
among foreign ships,
and such The extent of the state’s rights in the EEZ
suspension is The UNCLOS gives the coastal State
essential for the sovereign rights over all economic resources of
protection of its the sea, seabed, and subsoil in an area
security, and extending not more than 200 nautical miles
suspension is beyond the baseline from which the territorial
effective only after sea is measured [Arts. 55 and 57, UNCLOS].
having been duly
published [Art. 25, Rights of the coastal state in the EEZ
UNCLOS] a. Establish and use of artificial islands,
In the designation of Designation of sea installations and structures;
sea lanes and traffic lanes and traffic b. Conduct scientific research;
separation schemes, separation schemes c. Preserve and protect its marine
the coastal state is subject to adoption environment;
shall only take into by competent d. Board and inspect a ship;
account the international e. Arrest a ship and its crew;
recommendations of organization upon f. Institute judicial proceedings against them.
the competent
Page 435 of 439

In detention of foreign vessels, the coastal b. A distance of 200 nautical miles from the
state has the duty to promptly notify the flag baselines of the territorial sea where the
state of the action taken outer edge of the continental margin does
not extend up to that distance.
Rights of the non-coastal state
Under Art. 58, UNCLOS, all States enjoy the Continental Margin
freedom of navigation, over flight, and laying of Submerged prolongation of the land mass of
submarine cables and pipelines in the EEZ of the continental state, consisting of the
coastal states continental shelf proper, the continental slope,
and the continental rise
Coastal States have the primary responsibility
to utilize, manage and conserve the living Continental Shelf
resources within their EEZ (i.e. ensuring that a. The juridical or legal continental shelf
living resources are not endangered by covers the area until 200 nautical miles
overexploitation), and the duty to promote from baselines.
optimum utilization of living resources by b. The extended continental shelf covers the
determining allowable catch. area from the 200-mile mark to 350 nautical
miles from the baselines depending on
There is a duty to share catch if the maximum geomorphologic or geological data and
allowable catch is determined to be above the information.
capacity of the State to harvest. c. The continental shelf shall not extend
beyond 350 nautical miles from the
The State shall give other States access to the baseline of the territorial sea, or 100
surplus by means of arrangements allowable nautical miles from the 2,500- meter
under the UNCLOS. The UNCLOS, however, isobath (i.e. the point where the waters are
does not specify the method for determining 2,500 meters deep).
“allowable catch.”
Exclusive Rights of the Coastal State in the
The right of geographically disadvantaged Continental Shelf:
states or land locked states a. Sovereign rights with respect to the
exploration and exploitation of its natural
General Rule: These states have the right to resources, including the mineral and other
participate, on equitable basis, in the non-living resources of the seabed and
exploitation of the surplus of the living subsoil together with living organisms
resources in the EEZ of coastal states of the belonging to the sedentary species.
same sub region or region. b. The coastal state has the exclusive right to
authorize and regulate oil-drilling on its
Exception: A coastal state whose economy is continental shelf.
overwhelmingly dependent on the exploitation
of its EEZ, however, is not required to share its Note: “Exclusive” means that if the coastal
resources. does not explore or exploit its resources, no
other state can without the State’s consent.
7. Continental Shelf
Exclusive Continental Shelf
Extended Continental Shelf Economic Zone
It is the seabed and subsoil of the submarine Coastal state is No duty to manage
areas extending beyond the territorial sea of obliged to manage and conserve living
the coastal state throughout the natural and conserve living resources
prolongation of its land territory up to: resources in the
a. The outer edge of the continental margin; EEZ.
or
Page 436 of 439

The extent of the The extent of the resources of the Area, including the
right of the coastal right of the coastal transporting, processing and marketing of
state to natural state to natural minerals.
resources (non- resources (non-
living) only extends living) covers both What may be done by the Enterprise in the
to the seabed and waters super Area
subsoil adjacent to the Mining activities directly; or By joint ventures
seabed and those of with (1) State parties; (2) State enterprises; or
the seabed and (3) Natural or juridical persons sponsored by
subsoil. state parties.
The extent of the The extent of the
right of the coastal right of the coastal 8. The International Tribunal for
state to living state to living
resources only resources does not
the Law of the Sea (ITLOS)
extends to sedentary extend to sedentary
species species. The ITLOS is an independent judicial body
established by the Third United Nations
Convention on the Law of the Sea to adjudicate
The Area
disputes arising out of the interpretation and
The seabed and ocean floor and subsoil
application of the convention.
thereof, beyond the limits of national
jurisdiction.
Composition: Election of 21 members by the
state parties.
The Legal Status of the Area and the
resources therein:
The settlement of Disputes
a. No State shall claim or exercise
1. Peaceful Settlement of Disputes: Under
sovereignty or sovereign rights over any
Par. 3, Art. 2, UN Charter, States have the
part of the Area or its resources, nor shall
duty to settle disputes by peaceful means.
any State or natural or juridical person
This obligation extends to State parties of
appropriate any part thereof. [Art. 137,
the UNCLOS, underscoring the right of the
UNCLOS]
parties to resort to peaceful means of their
b. The Area and its resources are the
own choice on which they can agree any
common heritage of mankind [Art. 136,
time.
UNCLOS].
2. Compulsory Settlement of Disputes:
c. Activities in the Area shall be carried out for
Where no successful settlement can be
the benefit of mankind as a whole [Art. 140,
achieved, or if the parties are unable to
UNCLOS].
agree on the means of settlement of a
d. The Area shall be open to use exclusively
dispute concerning the application of
for peaceful purposes by all States [Art.
UNCLOS, such dispute may be governed
141, UNCLOS].
by the principle of compulsory settlement,
where procedures entail binding decisions.
The International Seabed Authority (ISA) is
the organization that organizes, carries out,
The parties may choose, through a written
and controls the activities of the Area on behalf
revocable and replaceable declaration, to
of mankind as a whole. The ISA is composed
submit the dispute to the following:
of:
a. ITLOS;
a. The Assembly: all state parties to the
b. ICJ;
UNCLOS
c. Arbitral tribunal; or
b. The Council: the executive organ whose 36
d. Special arbitral tribunal.
members are elected by the Assembly
c. The Enterprise: the organ directly engaged
in the exploration and exploitation of the
Page 437 of 439

Jurisdiction of the ITLOS international pursuit to sustainable

a. Any dispute submitted to it concerning the development in view of the pressures their
application or interpretation of UNCLOS; or societies place on the global environment
b. Any dispute concerning the interpretation and of the technologies and financial
or application of an international resources they command [Principle 7, Rio
agreement: Declaration].
i. Related to the purposes of the
UNCLOS; or 2. Precautionary Principle
ii. When such dispute is submitted to
it in accordance with that Where there are threats of serious or
agreement irreversible damage, lack of full scientific
certainty shall not be used as a reason for
Sources of Law to be applied in ITLOS: postponing cost-effective measures to
The court or tribunal shall apply the UNCLOS prevent environmental degradation
and other rules of international law not
incompatible with the UNCLOS [Art. 293, When it is uncertain as to the consequence
UNCLOS]. It may also decide a case ex aequo of the proposed activity to the environment,
et bono (what is equitable and just) if the doubts should be resolved on the side of
parties so agree. caution by taking measures to prevent or
avoid environmental degradation.
[Principle 15, Rio Declaration].
O. INTERNATIONAL
ENVIRONMENTAL LAW 3. Sustainable Development
It is development that meets the needs of

Definition
the present without compromising the
It is the branch of public international law
ability of future generations to meet their
comprising those substantive, procedural, and
own needs [Gabcikovo-Nagymaros Project
institutional rules which have as their primary
(ICJ, 1997)].
objective the protection of the environment
[SANDS].
No state has the right to use or permit the
use of its territory in such a manner as to
The protection of the environment is a vital part
cause injury by fumes in or to the territory
of contemporary human rights doctrine, for it is
of another or the properties or persons
a sine qua non for numerous human rights
therein, when the case is of serious
such as the right to health, and the right to life
consequence and the injury is established
itself. [Danube Dam Case (ICJ, 1997)]
by clear and convincing evidence [Trail
Smelter Arbitration Case (1938)].
Basic Principles
1. Common but Differentiated
Two Fundamental Principles of liability for
Responsibilities
transboundary pollution:
a. A state must show material damage
States shall cooperate in a spirit of global
and causation to be entitled to legal
partnership to conserve, protect and
relief; and
restore the health and integrity of the
b. A state has a duty to prevent, and may
earth’s ecosystem. In view of the different
be held responsible for pollution by
contributions to global environmental
private parties within its jurisdiction if
degradation, States have common but
such pollution results in demonstrable
differentiated responsibilities. The
injury to another state. [Trail Smelter
developed countries acknowledge the
Case, US v. Canada, 1941]
responsibility that they bear in the
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4. Sic Utere Tuo Ut Alienum Non Laedas or

the No-Harm Principle
States have, in accordance with the

Charter of the United Nations and the
principles of international law, the
sovereign right to exploit their own
resources pursuant to their own
environmental policies, and the
responsibility to ensure that activities within
their jurisdiction or control do not cause
damage to the environment of other States
or of areas beyond the limits of national
jurisdiction [Principle 21, Stockholm
Declaration].
Principle 21 as Custom:
“The Court recognizes that the
environment is daily under threat and that
the use of nuclear weapons could
constitute a catastrophe for the
environment. The existence of the general
obligation of States to ensure that activities
within their jurisdiction and control respect
the environment of other States or of areas
beyond national control is now part of the
corpus of international law relating to the
environment.”[ICJ Advisory Opinion on the
Legality of the Threat or Use of Nuclear
Weapons, July 8, 1996]
5. Protection of the Environment During

armed Conflict
Each State Party undertakes not to engage

in military or other hostile use of
environmental modification techniques
having widespread, long-lasting or severe
effects as the means of destruction,
damage or injury to any other Party State.
[Art. 1 Convention on the Prohibition of
Military or other Hostile Use of
Environmental Modification Techniques or
the Environmental Modification Convention
(ENMOD)]
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LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW

Page 390 of 439

E. ORGANIZATION AND REGULATION OF 1. Concept ................................................. 168

3. Other Rights .......................................... 229 2.Registration of Political Parties ............. 307

F. DIPLOMATIC AND CONSULAR LAW....... 405

Two Special Types of Obligations under

Jus Cogens is also known as a peremptory

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Responsibili- Collective Generally

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How International Law Becomes part of Articles on State Responsibility (hereinafter

2. Doctrine of Transformation: Treaties or C. SOURCES OF

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Shorthand Terms for sources of PRIMARY SOURCES

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Note: This is considered as customary must accept the reservation. A reservation

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This means that the practice is virtually uniform Duality of Norms

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mission of the sending state [Reyes v. 6. Abuse of Rights

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Resolutions may satisfy the subjective element

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The United Nations has an objective o some actual exercise or display of

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disorder alone can remove its character as a Concepts Relating to Statehood:

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However, they are continued to be recognized 2. International Organizations

A general government de facto having In general, individuals, whether natural or

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2. Exemptions from Jurisdiction 3. Such immunity applies even if the claim

Exception: When a state waives the immunity b. International Organizations and

Types of State Immunity The rapid growth of international organizations

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International immunity is not concerned with a. Agents of Diplomatic Relations

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iii. Foreign Office • Functional necessity theory: The

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Waiver of Immunity from Jurisdiction No measures of execution may be taken in

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Diplomatic Protection ii. Inviolability of Consular

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The consular archives and documents of a v. Immunity from Local

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aircraft in the receiving state [Art. 43,

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Indelible Allegiance nationality. [Art. 2, Hague Convention of

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Right to Nationality under the International Definition of Treaty

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i. A person is considered as Note: See Articles 12-17 of VCLT for in

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3. Amendment and Modification of c. Error of fact or situation, provided that:

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General Rule: The impossibility results g. Severance of Consular or Diplomatic

Requisites [Art. 62 (1), VCLT]: Treaties have to be transformed in order to be

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It proceeds from the theory that as an abstract e. Conduct directed or controlled by a

An organ includes any person or entity which Overall Control

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impossible in the circumstances to perform the

Cannot be invoked if: “Full reparation” means that the responsible

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2. Compensation [Article 36, ASR] Contribution to the Injury

Compensation corresponds to the financially

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c. He has acquired a new nationality, and

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Among those enumerated in the 1951 c. Permission to transfer assets

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