PUBLIC INTERNATIONAL LAW

I. The General Principles

1987 Philippine Constitution

Declaration of Principles and States Policies; Art. 2, Sec. 21 — The
Philippines renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the
land and adheres to the policy of peace, equality, justice, freedom,
cooperation, and amity with all nations.
Executive Department; Art. 7, Sec. 21 — No treaty or international
agreement shall be valid and effective unless concurred in by at least two-
thirds of all Members of the Senate.
What is International Law?
 Traditional - That branch of public law which regulates the
relations of States and of other entities which have been granted
international personality.

 Modern - The law that deals with the conduct of States and
international organizations, their relations with each other and, in
certain circumstances, theirrelations with persons, natural or juridical
Public International Law distinguished from:
What is the theoretical basis of International Law?
1. Natural Law theory. — Since individuals compose the State whose
will is but the collective will of the inhabitants, the State also becomes
bound by the law of nature.
2. The Eclectic or Grotian Theory — In so far as it conforms to the
dictates of right reason, the voluntary law may be said to blend with
the natural law and be, indeed, an expression of it. In case of conflict,
the natural law prevails, being the more fundamental law.
3. Command theory. — law consists of commands originating from a
sovereign and backed up by threats of sanction if disobeyed. In this
view, international law is not law because it does not come from a
command of a sovereign. This theory, however, has generally been
discredited. The reality is that nations see international law not as
commands but as principles for free and orderly interaction.
4. Consensual theory — Under this theory, international law derives its
binding force from the consent of states. Treaties are an expression
of consent. Likewise, custom, as voluntary adherence to common
practices, is seen as expression of consent. In this context,
international law is not a law of subordination but of coordination.
Is International Law a true law?
A:
 Yes.
 States are bound by many rules not promulgated by themselves.
(Bernas, International Law, p.2)
 Fundamentally, there is a general respect for law and also there is
concern about the consequences of defiance either to oneself or to
the larger society. International law is law because it is seen as such
by states and other subjects of international law. (Bernas,
International Law, p.4)

Relationship with Municipal Law

Conflict between International Law and
Municipal Law
THE SOURCES OF INTERNATIONAL LAW
Classified as:

 Formal sources – refers to the various processes by which rules

come into existence.
 Material sources – they are not concerned with how rules come into
existence but rather with the substance and content of the obligation.
They identify what the obligations are. They are also sometimes
referred to as “evidence” of international law.
 How does the ICJ should resolve conflicts brought before it?

As Primary Sources:
 a) International Treaties and Conventions - whether general or
particular, establishing rules expressly recognized by contesting
states;

b) International Custom - as evidence of a general practice

accepted as law;

c) general principles of law - recognized by civilized nations;

As Secondary Sources:

a) Judicial Decisions; and

b) Teachings of the most highly qualified publicists of the various

nations, as subsidiary means for the determination of rules of
law. (Article 38(1) of the Statute of the International Court of
Justice)

TREATIES

 treaties or international agreements, whether bilateral or multilateral.

 determine the rights and duties of states just as individual rights are
determined by contracts.

 Their binding force comes from the voluntary decision of sovereign

states to obligate themselves to a mode of behavior.

If a treaty comes later than a particular custom, as between the parties

to the treaty, what should prevail?

A: The treaty should prevail. A treaty manifests a deliberate choice of

the parties and the principle of pacta sunt servanda should be
followed.

However, if a later treaty is contrary to a customary rule that has the

status of jus cogens, custom will prevail. This is because of Article 53 of the
Vienna Convention on the law of Treaties: A treaty is void if, at the time of
its conclusion, it conflicts with a peremptory norm of general international
law.
CUSTOMARY INTERNATIONAL LAW

 a general and consistent practice of states followed by them from a

sense of legal obligation.

 Elements of custom:

1) material factor — The initial factor for determining the

existence of custom is the actual behavior of states
(usus). This includes several elements: duration,
consistency, and generality of the practice of states.

2) psychological or subjective factor (Opinio Juris) — or the

belief that a certain form of behavior is obligatory, is what
makes practice an international rule. Without it, practice is
not law.

General Principles of Law

 Restatement (Third) of Foreign Relations Law of the United States,

refers to them as:

 general principles of law recognized by or common to the

world’s major legal systems.

 This has reference not to principles of international law but to

principles of municipal law common to the legal systems of the
world.

 “supplementary rules of international law.”

JUDICIAL DECISIONS

 They are not really sources, but “subsidiary means” for finding what
the law is, and whether a norm has been accepted as a rule of
international law. Article 59 of the Statute of the International Court of
Justice says that, “the decisions of the court have no binding force
except between the parties and in respect of that particular case.”
Hence, such decisions do not constitute stare decisis.
  However, the decisions of the ICJ are not only regarded as highly
persuasive in international law circles; they have also contributed to
the formulation of principles that have become international law.

 international personality of international organizations

 doctrine on “genuine link” between a person and a state for

purposes of jurisdiction, and

 the straight baseline method in drawing baselines for

archipelagos.

The teachings of highly qualified writers and “Publicists.”

 “Publicists” are institutions which write on international law.

 must be fair and unbiased representation of international law by

acknowledged authorities in the field.

 In common law jurisdictions, there is reluctance to use them. In civil

law jurisdictions, there is more ready reference to writers. The ICJ is
generally reluctant to refer to writers but they are often taken into
consideration.

II. Subjects of International Law

Subjects of International Law

 are entities endowed with rights and obligations in the international

order and possessing the capacity to take certain kinds of action on
the international plane.

 They are actors in the international legal system and are distinct from
objects of international law.

Objects of International Law

  a person or thing in respect of which rights are held and obligations
assumed by the subject;

 it is not directly governed by the rules of international law;

 its rights are received, and its responsibilities imposed, indirectly

through the instrumentality of an international agency

Subjects of International Law

 States

 International Organizations

 Insurgents

 Colonies and Dependencies

 Individuals

States

— A state is a group of people, living together in a fixed territory, organized

for political ends under an independent government, and capable of
entering into international relations with other states.

Elements of State

 People

 Territory

 Government

 Sovereignty

 Self-determination

 Recognition

Can an entity claim to be a state before it is recognized by other states?

Recognition of States
  the act of acknowledging the capacity of an entity to exercise rights
belonging to statehood.

The Declaratory Theory:

recognition is merely “declaratory” of the existence of the state

and that its being a state depends upon its possession of the required
elements and not upon recognition. A recognizing state merely
accepts an already existing situation.

Constitutive Theory:

recognition “constitutes” a state, that is, it is what makes a state

a state and confers legal personality on the entity.

Basic Rules on Recognition

 It is a political act and mainly a matter of policy on the part of each

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

Recognition of Government

 the act of acknowledging the capacity of an entity to exercise powers

of government of a state.

Effects of Recognition

1. Establishment of diplomatic relations;

2. Grant of right to sue in courts of recognizing state;

3. Grant of right to possession of properties of predecessor in the

recognizing state;

4. Retroactive validity: All acts of the recognized state or government

are validated retroactively, preventing the recognizing state from
passing upon their legality in its own court.
International Organizations

How do they come into existence?

 An international organization is an organization that is set up by

treaty among two or more states.

 Only states are members of international organizations.

Do they have international personality?

 In the case of other organizations, the charter itself might

specifically endow it with international personality. But if it does
not, possession of international personality may be implied from
the functions of the organization, as in the case of the UN.

 Exception: United Nations: The United Nations has objective

international personality. Its personality is binding on the whole
international community, including States who are not UN
members.[Reparations for Injuries Advisory Opinion (ICJ, 1949)]

Do they enjoy any kind of immunity?

 There is no common law doctrine recognizing the immunity of

international organizations. Their immunities come from the
conventional instrument creating them a clear example of the
grant of immunity is the 1946 General Convention on the
Privileges and Immunities of the United Nations.

Insurgents

 The first and only international agreement exclusively regulating the

conduct of parties in a non-international armed conflict is the 1977
Protocol II to the 1949 Geneva Conventions.

 A non-international armed conflict covered by this expanded

guarantee is defined in Article I.

 They are armed conflicts which take place in the territory of a High
Contracting Party between its armed forces and dissident armed
 forces or other organized armed groups which, under responsible
command, exercise such control over a part of its territory as to
enable them to carry out sustained and concerted military operations
and to implement this Protocol.

 Protocol II sets down requirements for what it calls “material field of

application:

 the armed dissidents must be under responsible command;

 they must exercise such control over a part of its territory as to

enable them to carry out sustained and concerted military
operations and to implement this Protocol.”

 Insurgent groups which satisfy the material field of application of

Protocol II may be regarded as “para-statal entities possessing
definite limited form of international personality.”

 State practice indicates two specific attributes of such “personality.”:

 they are recognized as having belligerent status against the de

jure government. Other states are therefore required to
maintain neutrality regarding them.

 they are seen as having treaty making capacity.

Colonies and Dependencies

Individuals

 In international law they were objects or at best “beneficiaries” of

international law.

 With the greater global awareness of human rights, individuals have

now come to be recognized as possessing albeit limited rights and
obligations in international law.

 Special personality: Individuals may assume the status of subjects of

international law only on the basis of agreement by states and in
specific context, not in accordance with general or customary
international law.

 Examples:

 UNCLOS, art. 187(c)-(e) provides for jurisdiction of the Sea-

Bed Disputes Chamber of the ITLOS over disputes between
parties to contracts relating to the exploitation of marine
resources.

 The International Criminal Court has jurisdiction over individuals

who commit genocide, crimes against humanity and war
crimes, subject to conditions under the ICC Statute. [ICC Stat.,
art. 25(1) in relation to art. 5]

 Obligations

 are those arising from the regulation of armed conflicts.

 Violation of these rules can place individuals under criminal

responsibility.

 Rights

 When individual rights are violated, however, individuals still

have to rely on the enforcement power of states.
  But some treaties have provided for the right of individuals to
petition international bodies alleging that a contracting state has
violated some of their human rights.

What are other subjects of International Law?

 International Liberation Movements

 mandates and trust territories

 The Holy See (Vatican City)

 The United Nations,

 International administrative bodies

FUNDAMENTAL RIGHTS OF THE STATE

A. Existence and Self- Preservation

B. Right to Sovereignty and Independence
C. Right of Equality
Discussion

Existence and Preservation

General Rule and Legal Basis

Art 2. Paragraph 3 and 4 of the UN Charter

“All members shall settle their international disputes by peaceful means

in such a manner that international peace and security, and justice, are
not endangered.”

“All members shall refrain in the international relations from the threat or
use of force against the territorial integrity or political independence of
any state, or in any other manner inconsistent with the purposes of the
UN. “
Exception and its Legal Basis

• Art. 51 of the UN Charter recognizes the right of the state to individual

and collective self-defense (through regional arrangements) if an
armed attack occurs against such state, until the Security Council has
taken measures necessary to maintain international peace and
security.
However, the right may be resorted to only upon a clear showing of
grave and actual danger, and must be limited by necessity.

A STATE HAS THE RIGHT TO DEFEND ITSELF AGAINST

AGGRESSION.

Aggression: The use of armed force by a state against the sovereignty,

territorial integrity or political independence of another state, or in other
any manner inconsistent with the UN Charter.

RIGHT TO SELF-DEFENSE:

Requisites

1. Presence of an armed attack

2. There is a clear showing of a grave or actual danger to

the security of the state.

3. The self-defensive measures must be limited by necessity

and kept clearly within it.

Other principles:

• No consideration of whatever nature, political, economic or military,

can justify aggression;
• No territorial acquisition or special advantage resulting from
aggression shall be recognized as lawful.
• Freedom and independence of people deprived of such rights, nor
the right of these people to struggle to that end and to seek and
receive support.
Right to Sovereignty and Independence

SOVEREIGNTY

It is the totality of the powers, legal competence and privileges of a state

arising from customary international law, and not dependent on the
consent of another state. Example: authority to govern a state or a state
that is self governing.

INDEPENDENCE

It is the freedom to conduct foreign relations without outside control.

General Rule: A state has the right to sovereignty and independence.

 Exceptions:
1. Principle of auto-limitation: self-imposed limitation or the limiting of
the state of its own self, such as entering into treaties.

2. Membership in the UN.

3. Valid interventions- an act by which a state interferes with the

domestic or foreign affairs of another state or states through
employment of force or threat of force

Nicaragua vs. US, Communique 86/8, June 27, 1986

The US was found guilty of intervention in the affairs of Nicaragua for

sending troops to Nicaragua to aid the contras, inasmuch as there was
no armed attack against the latter.

Note that protest or demand for rectification or reparation does not

comprise intervention. Thus, the act of President Clinton in discouraging
Americans from investing in Burma was not considered as intervention.

Under contemporary international law, as a rule, intervention is not

allowed.

International disputes have to be settled by peaceful means. Under Art.

2, UN Charter, even the UN is precluded from intervening in matters
essentially withinthe domestic jurisdiction of a state, unless necessary to
remove and prevent threats to the peace, breaches or acts of
aggression.

A 1965 UN General Assembly

Resolution states that no state has the right to intervene, directly or

indirectly, in the affairs of another.

At present, intervention is allowed only as;

1. an act of individual or collective self-defense in response to an armed

attack;
2. pursuant to treaty stipulations; or
3. with prior UN authorization

RIGHT TO EQUALITY

Sovereign Equality (Par in parem non habet imperium)

 All the rights of a state must be observed and respected by the

international community in the same manner that the rights of other
states are observed and respected.
 Principle of sovereign immunity- A state is immune from the exercise
of jurisdiction by another.
 Act of State doctrine.
 Every sovereign state is bound to respect the independence of every
other state, and the courts of one country will not sit in judgment on
the acts of the government of another, done within its territory.
Redress of grievances by reason of such acts must be obtained
through the means open to be availed of by sovereign powers as
between themselves [Underhill v. Hernandez, 168 U.S. 250].
Exception

The state is deemed to have waived its immunity when

1. It gives consent at the time the proceeding is instituted;

 2. When it takes steps relating to the merits of the case before
invoking immunity;

3. When, by treaty or contract, it had previously given consent;

4. When, by law or regulation in force at the time the complaint

arose, it has indicated that it will consent to the institution of the
proceedings.

The state is deemed to have waived its immunity when

1. It gives consent at the time the proceeding is instituted;

2. When it takes steps relating to the merits of the case before

invoking immunity;

3. When, by treaty or contract, it had previously given consent;

4. When, by law or regulation in force at the time the complaint

arose, it has indicated that it will consent to the institution of the
proceedings.

RIGHT TO TERRITORIAL INTEGRITY AND JURISDICTION

Territory

The fixed portion on the surface of the earth on which the State settles
and over which it has supreme authority.

The components of the territory of the State are;1. the terrestrial, 2.

fluvial, 3. maritime and 4. aerial domains.

National Territory of the Philippines. Sec. 1, Art. I, Philippine

Constitution, defines the national territory of the Philippines, as follows:

“The national territory comprises the Philippine archipelago, with all the
islands and waters embraced therein, and all other territories over which
the Philippines has sovereignty or jurisdiction, consisting of the
terrestrial, fluvial and aerial domains, including its territorial sea, the
seabed, the subsoil, the insular shelves, and other submarine areas.
The waters around, between and connecting the islands of the
archipelago,
regardless of their breadth or dimensions, form part of the internal
waters of the Philippines.”

Organic acts and issuances affecting the National Territory

(i) Treaty of Paris of December 10,1898 [cession of the Philippine

islands by Spain to the United States;

(ii) Treaty between Spain and the U.S., at Washington, on November 7,

1900 [Cagayan, Sulu and Sibuto];

(iii) Treaty between the U.S. and Great Britain, January 2, 1930 [Turtle
Islands and Mangsee Islands];

(iv) 1935 Constitution [Batanes];

(v) 1973 Constitution [territory belonging to the Philippines by historic

right or legal title]; and (vi) PD 1596, June 11, 1978 [Philippines officially
laid claim to the Kalayaan Islands by virtue of occupation and exercise
of jurisdiction]

Land Territory [Terrestrial Domain]

Land territory can be acquired in the following manner;

a) Discovery and occupation

b) Prescription
c) Cession
d) Conquest
e) Accretion
Discussion

a) Discovery and occupation.

Territory not belonging to any State, or terra nulius, is placed under the
sovereignty of the claiming State. “Discovery”, alone, merely creates an
inchoate right; it must be followed within a reasonable time by effective
occupation and administration.

Thus, in the Palmas Island Arbitration case, the inchoate right flowing
from discovery was deemed lost because administration was not
undertaken within a reasonable time

Kalayaan Island

Between 1947 to 1956, Tomas Cloma, a Filipino, discovered the

Kalayaan Islands (a 53-island group not part of the Spratlys).
Subsequently, Cloma ceded his rights to the Philippine Government.

By virtue of Presidential Decree No. 1596 (June 11, 19978), the

Philippines formally laid claim to the islands by virtue of occupation and
exercise of jurisdiction. The Municipality was established as part of the
Province of Palawan. On May 20,1980, the Philippines registered its
claim with the United Nations Secretariat. The Philippine claim to the
islands is justified by reason of history, indispensable need, and
effective occupation and control.

Prescription

Territory may also be acquired through continuous an uninterrupted

possession over a long period of time, just like in civil law. In
international law, however, there is no rule of thumb as to the length of
time needed for acquisition of territory through prescription. In this
connection, consider the Grotius doctrine of immemorial prescription,
which speaks of uninterrupted possession going beyond memory.

Cession( by treaty)

Cession may be voluntary, through a treaty of sale, e.g., the sale of

Alaska by Russia to the U.S., or through a treaty of donation,e.g., the
donation of Sabah by Borneo to the Sultan of Sulu. Cession may also be
involuntary, or forced, such as the treaty entered into by the U.S. and
Spain after the Spanish-American War, although the treaty was
denominated one of sale, whereby Spain ceded the Philippines, Puerto
Rico, Marianas and Guam to the U.S. for $20M.

Conquest

This mode of acquisition is no longer recognized, inasmuch as the

UN Charter prohibits resort to threat or use of force against the territorial
integrity or political independence of any State.

Accretion

The increase in the land area of the State, either through natural means,
or artificially, through human labor.

Maritime Territory

1. Internal (National) Waters 2. Archipelagic Waters 3. Territorial

Sea.
Internal waters- Bodies of water within the land mass.It is comprised of;

a. Rivers
b. Bavs and gulfs
c. Straits
d. Canals
e. Archipelagic Waters - The waters around, between and connecting
the islands of the archipelago, regardless of their breadth or
dimension.

Vessels may be allowed innocent passage within the archipelagic

waters, but this right may be suspended, after publication, in the interest
of international security.
Straight Baseline Method. To determine the extent of the archipelagic
waters, draw straight baselines connecting the outermost points of the
outermost islands and drying reefs

Territorial sea- The belt of the sea located between the coast and
internal waters of the coastal state on the one hand, and the high seas
on the other

Settlement of Disputes

arising from the UN Convention on the Law of the Sea (UNCLOS). Part
XV of the 1982 UN Convention on the Law of the Sea requires States to
settle peacefully any dispute concerning the Convention.

Failing a bilateral settlement, Art. 286 provides that any dispute shall be
submitted for compulsory settlement to one of the tribunals having
jurisdiction.

These include the; a) International Tribunal for the Law of the Sea
(ITLOS), b) the International Court of Justice, c) and arbitral or special
arbitral tribunals constituted under the UNCLOS.

Air Territory

Q: Is the outer space included in the air territory?

Answer:

No, the outer space is considered as res communes.(Thing owned by no

one and subject to use by all) therefore, all states has the right to launch
satellites in orbit over the territorial air space of other States. and it may
be used exclusively for peaceful purposes. Except, nuclear weapons of
mass destruction may not be placed in orbit around the earth.

Five Freedoms (of Air Transportation for Scheduled

InternationalServices
1. To fly across the territory without landing;

2. land for non-traffic purposes;

3. land to put down passenger, mail, cargo of flag territory;

4. land to take passenger, mail and cargo of flag territory;

5. and to put down passenger, mail and cargo from these territories.

Jurisdiction.

The power or authority exercised by a State over land, persons,

property, transactions and events.

The basic question of jurisdiction centers upon which State has

sovereignty or legal control over land, persons, ships at sea, airships in
flight, property, transactions or events, in various situations.

Bases of Jurisdiction.

1. Territorial Principle. The State may exercise jurisdiction only within its
territory. Exceptionally, it may have jurisdiction over persons and acts
done outside its territory depending on the kind of jurisdiction it
invokes.
2. Nationality Principle. The State has jurisdiction over its nationals
anywhere in the world, based on the theory that a national is entitled
to the protection of the State wherever he may be, and thus, is bound
to it by duty of obedience and allegiance, unless he is prepared to
renounce his nationality.
3. Protective Principle. State has jurisdiction over acts committed
abroad (by nationals or foreigners) which are prejudicial to its national
security or vital interests.
4. Principle of Universality. State has jurisdiction over offenses
considered as universal crimes regardless of where committed and
who committed them. e. g. Piracy, Genocide
Question;
 1. Give at least two (2) example of situation were a state can exercise
jurisdiction over a person who is outside its territorial jurisdiction.

2. Give at least two (2) example of a situation were a state can exercise
jurisdiction over a person not a Filipino Citizen.

Exemptions from Jurisdiction

1. Doctrine of State Immunity

2. Act of State Doctrine- A State should not inquire into the legal validity
of the public acts of another State done within the territory of the latter
3. Diplomatic Immunity
4. Immunity of the United Nations, its Organs
5. Foreign merchant vessels exercising the right of innocent passage
Foreign armies passing through or stationed in the territory with the
permission of the State.
6. Warships and other public vessels of another State operated for
noncommercial purposes.

RIGHT OF LEGATION

• Right of diplomatic intercourse

• It is the right of the state to send and receive diplomatic missions;
• It exists only by common consent.
• No legal liability is incurred by the state for refusing to send or receive
diplomatic representatives.
• Governing law: the Vienna Convention on Diplomatic Relations
(1961)
2 Aspects of the Right of Legation

Active right of legation – right to send envoys or establish diplomatic

mission
Passive right of legation – the right to receive such envoys or missions

Agents of Diplomatic Relations

• Head of state – represents the sovereignty of the state. (Example:

president of the republic of the Philippines)
He enjoys the right to special protection for his physical safety and
preservation of his honor and reputation;
His quarters, archives, property and means of transportation are inviolate
under the principle of exterritoriality.
Immune from criminal and civil jurisdiction
Exception: when he is the plaintiff
Not subject to tax or exchange or currency restrictions
• The Foreign Office – headed by the secretary or a minister, who in
proper cases, may make binding declarations on behalf of the
government.
Performs the actual day-to-day foreign affairs.
Composition of the Mission

Head of the Mission / Diplomatic Envoys

 Ambassadors or Nuncios
 Envoys, Ministers and Internuncios
 Charges d’ Affaires
Diplomatic Staff

Administrative and Technical Staff

Service Staff

The Diplomatic Corps

A body consisting of the different diplomatic representatives who have

been accredited to the same local or receiving state.
Headed by a Doyen Du Corps (oldest ambassador/minister with the highest
rank) or, the Papal Nuncio (in Catholic countries)

Appointment of Envoys

Appointment is made by the President

However, the sending state is not absolutely free in the choice of its
diplomatic representatives, because the receiving state has the choice
to refuse the envoy whom it considers unacceptable (persona non grata)

Persona non grata – a person is not acceptable to the court or government

to which it is proposed to accredit him in the character of an ambassador or
minister.
The state is given the opportunity to inquire as to the acceptability of an
ambassador or minister to the receiving state through the informal
process called agreation.

When the receiving country finds no cause to refuse the said

ambassador or minister, it manifests, informally, its consent or
agrement.

Rationale: to avoid diplomatic faux pas, or diplomatic embarrassment.

When the informal process of inquiry (agreation and agrement) is done,

and an envoy is already appointed, the said envoy is armed with the
following papers:

1. Lettere de creance (letter of credence) – contains the general

information of the envoy, his rank, the character and general
object of his mission, request for favorable reception and full
credence. It is sealed, but the ambassador/minister is furnished
with several carbon copies of the same.
2. Diplomatic passport – authorizing his travel, both of his person
and his office.
3. Instructions – document of full powers (plenis pouvoirs),
authorizing him to negotiate on extraordinary or special
business
 4. Chiper/code/secret key – used for communication with his
country
Functions and Duties of Diplomatic Agents

• To represent the state in the receiving state;

• Protecting in the receiving state the interests of the sending state and
its nationals, within the limits allowed by international law;
• Negotiating with the government of the receiving state;
• Ascertaining, by lawful means, the conditions and developments in
the receiving state and reporting these to the sending state;
• Promoting friendly relations between the sending state and the
receiving state, and developing their economic, cultural, and scientific
relations.
Diplomatic Immunities and Privileges

The customary international law granting immunity in favor of diplomatic

persons to uphold their dignity and to allow the free and unhampered
exercise of their functions (Vienna Convention on Diplomatic Relations).

1. Personal inviolability
The diplomat shall not be liable to any form of arrest or detention. The
receiving state shall treat him with due respect and take all steps to
prevent any attack on his person, freedom, or dignity.

However, diplomatic envoys may be arrested temporarily in case of

urgent danger, such as when he commits an act of violence which
makes it necessary to put him under restraint for the purpose of
preventing similar acts; but he must be released and sent home in due
time.

2. Inviolability of premises and archives

The premises occupied by a diplomatic mission, as well as the private
residence of the diplomatic agent, are inviolable. The agents of the
receiving state may not enter without the consent of the envoy, except in
extreme cases of necessity (e.g. Fire)

Such premises cannot be entered or searches, and neither can the

goods, records, and archives be determined by local authorities even
under process of law.

3. Right of official communication

The right of an envoy to communicate with his government fully and
freely is universally recognized, whether ordinary or in cipher, by any of
the usual modes of communication or by means of diplomatic couriers.
Because of this right, the diplomatic pouch and diplomatic couriers shall
also enjoy inviolability.

4. Immunity from local jurisdiction

The diplomatic agent cannot be arrested, prosecuted and punished for
any offense he may commit, unless immunity is waived. But, it does not
presuppose a right to violate the laws of the receiving state.

Diplomatic agent also enjoys immunity from the civil and administrative
jurisdiction of the receiving state, except:

Real actions relating to private immovable properties situated in

the territory of the receiving state, unless he holds it in behalf of
the receiving state;

In action relating to succession, wherein he is an executor,

administrator, heir or legatee, as a private person;

Action relating to professional or commercial activity exercise by

the diplomatic agent in the receiving state outside of his official
functions.

5. Exemption from taxes and custom duties

Under the Vienna Convention, diplomatic agents are exempt from all
dues and taxes, whether personal or real, national, regional or
municipal, except:
  Indirect taxes;
 Dues and taxes on private immovable property situated in the territory
of the receiving state;
 Estate, succession, or inheritance taxes levied by the receiving state,
and capital taxes on investments in commercial ventures in the
receiving state;
 Charges levied for specific services rendered;
 Registration, court or record fees, mortgage dues and stamp duty,
with respect to immovable properties.
6. Other privileges:
Freedom from movement and travel in the territory of receiving state;
Exemption from personal services, public services and from military
obligations;
Right to use the flag and emblem of the sending state on the premises of
the mission
Duration of Immunities/Privileges

• Enjoyed by the envoy from the moment he enters the territory of the
receiving state, and shall cease only the moment he leaves the
country, or on expiry of a reasonable time in which to do so, although
with respect to official acts, immunity shall continue indefinitely.
• These privileges are available even in transit, when traveling to a
third state on the way or from the receiving state.
Waiver of Immunities

• Waiver may be made only by the government of the sending state, if

it concerns the immunities of the head of the mission;
• In other cases, the waiver may be made wither by the government or
by the chief of the mission.
 • Waiver of this privilege, however, does not include waiver of the
immunity in respect of the execution of judgement; a separate waiver
for the latter is necessary.
Termination of Diplomatic Mission

• Death;
• Resignation;
• Removal or abolition of office;
• Recall by the sending state;
• Dismissal by the receiving state;
• War between the receiving and sending states; or
• Extinction of the state

CONSULAR RELATIONS

Consuls - State agents residing abroad for various purposes but mainly
in the interest of commerce and navigation

Kinds:

Consul missi – professional and career consuls; nationals of the

appointing state.

Consules electi – selected by the appointing state wither from its

own citizens or from among nationals abroad.

Ranks of Consuls

• Consul general – heads several consular districts, or one

exceptionally large consular district;
• Consul – who takes charge of small district or town or port;
• Vice consul – who assists the consul;
 • Consular agent – who is usually entrusted with the performance of
certain functions by the consul.
Appointment of Consuls

• Letters patent (lettere de provision) – letter of appointment or

commission which is transmitted by the sending state to the secretary
of foreign affairs of the country where the consul is to serve; and
• Exequatur – which is the authorization given to the consul by the
sovereign of the receiving state
Functions of Consuls

• Pertain to commerce and navigation, issuance of visa, and such are

designed to protect nationals of the appointing state.
Immunities and Privileges of Consuls

• Freedom of communications in cipher or otherwise;

• Inviolability of archives, but not of premises;
• Exempt from local jurisdiction for offenses committed in the discharge
of official functions, but not other offenses, except minor infractions;
• Exempt from testifying on official communications or on matters
pertaining to consular functions;
• Exempt from taxes, custom duties, military or jury service;
• May display their national flag and emblem in the consulate.
• Waiver of immunities may be made by the appointing state.
Termination of Consular Mission

• Withdrawal of the exequatur;

• Extinction of the state;
• War
Note: severance of consular relations does not necessarily terminate
diplomatic relations.
 TREATIES

• Defined as “an international agreement concluded between states in

written form and governed by international law, whether embodied in
a single instrument or in two or more instruments and whatever its
particular designation.” (Vienna Convention On The Law Of Treaties,
1969)
Functions

• Enable parties to settle finally actual and potential conflicts;

• Makes it possible for the parties to modify the rules of international
customary law by means of optional principles or standards;
• Lead to a transformation of unorganized international society into one
which may be organized on any chosen level of social integration;
and
• Frequently provide the humus for growth of international customary
law.
Form

• It must be in writing.
• However, a fact that a treaty is unwritten shall not affect its legal
force, but that convention rules on matters governed by international
law independently of convention shall apply, and that convention
rules shall apply to the relations of the states among themselves.
Various Appellations Given to Treaties

• Pact – special treaty which is formally sentimental;

• Convention – this is more or less an informal treaty dealing with
specific subjects; sometimes, it does not require ratification;
• Agreement/arrangement/accord – conventions on administrative or
technical matters;
• Concordats – agreements entered into by the pope with various
chiefs of states;
 • Declaration – formal reciprocal agreements which may deal with:
Rights and privileges of the national of a state;
Principles in accordance with which states propose to act, or;
Grounds for mutual action on the part of the states.
• Protocol – this may refer wither to a supplementary treaty or to an
amendment to a treaty.
Requisites for Validity

• Treaty-making capacity;
Every state possesses the capacity to conclude treaties, as an attribute
of sovereignty.

Under customary international law, international organizations are

deemed to possess treaty-making capacity. Although such capacity may
be limited by the purpose and constitution of such organization

• Competence of the representative/organ concluding the treaty;

In the Philippines, it is the head of the state exercises the treaty-making
power, subject to the concurrence by 2/3 of all the members of the
senate.

• Parties may freely give consent;

Where consent is given in error or induced through fraud on the party of
the other, the treaty is voidable.

Where consent of a state is obtained through corruption of its

representatives by another negotiating state, the former may invoke
such corruption in invalidating its consent to be bound by the treaty.

Doctrine of unequal treaties – treaties which have been imposed

(through coercion or duress) by a state of unequal character, is void

May be expressed by:

 Signature;

Exchange of instruments constituting treaty;

Ratification;

Acceptance;

Approval or accession;

Other means manifesting consent.

• Object and subject matter must be lawful;

Within the commerce of nations and in conformity with international law.

An object is deemed illegal only when it contravenes or departs from an

absolute or imperative rule or prohibition of international law

Doctrine of jus cogens – customary international law has the status of a

peremptory norm of international law, accepted and recognized by the
international community of states as a rule from which no derogation is
permitted. Where a treaty whose provisions contravene with
international norms/rules may be invalidated.

• Ratification in accordance with constitutional processes of the parties

concerned.
No treaty or international agreement shall be valid and effective unless
concurred in by at least 2/3 of all the members of the senate. (Section
21, Article VII, 1987 Constitution of The Philippines)

Treatise and Executive Agreements

• Treaties – generally refer to basic political issues, changes in national

policy and permanent international arrangements; requires senate
concurrence for validity.
• Executive agreements – refer to adjustments or detail carrying out
well-established national policies, and temporary arrangements; does
not require senate concurrence
 • In Bayan v. Executive Secretary, GR No. 138570, October 10, 2000,
the supreme court ruled that ‘it is inconsequential that the us treats
the visiting forces agreement as merely an executive agreement
because, under the international law, an executive agreement is just
as binding as a treaty’
• In case there is a dispute as to whether or not an international
agreement is purely an executive agreement, the matter is referred to
the Secretary of Foreign Affairs who will then seek the comments of
the senate representatives and legal adviser of the department, and
after consultation, the Secretary of Foreign Affairs shall make
appropriate recommendations based on his findings, and submit the
same to the President.
Treaty-making Process

• Negotiation – it is a standard practice for one of the parties to submit

a draft of the proposed treaty, which, together with the counter-
proposals, become the basis of the subsequent negotiations;
• If and when the negotiators finally agree on the terms of the treaty,
the same is opened for signature;
• Ratification – is the formal act by which the state confirms and
accepts the provisions of a treaty concluded by its representatives;
• Exchange of instruments of ratification – or deposit with the
government of one of the contracting parties with an organ of an
international organization; and
• Registration – with and publication by the secretariat of the united
nations
Binding Effects of Treaties

• As a rule, a treaty is binding only on the contracting parties, including

not only the original signatories, but also other states which, although
they may not have participated in the negotiation of the agreements,
have been allowed by its term to sign it later by a process known as
accession.
 • Other states may also be bound by the terms of a treaty if linked by
the most favored nation clause, under which a contracting state
entitled to the clause may claim the benefits extended by the latter to
another state in a separate agreement.
Rule on Observance of Treaties

• General rule: pacta sunt servanda – performance in good faith

• Exception: rebus sic stantibus – a contracting state’s obligations
under a treaty terminates when a vital or fundamental change of
circumstances occurs, thus allowing a state to unilaterally withdraw
from a treaty because of the ‘disappearance of the foundation upon
which it rests.’
This doctrine does not operate automatically; there is a necessity for a
formal act of rejection by the head of the state.
Requisites for Valid Invocation of Rebus Sic Stantibus

• Change must be so substantial that the foundation of the treaty must

have altogether disappeared;
• Applies only to treaties of indefinite duration;
• The vital change must have been unforeseen or unforeseeable and
should have not been caused by a party invoking the doctrine;
• The doctrine must be invoked within a reasonable time; and
• It cannot operate retroactively upon the provisions of the treaty
already executed prior to the change of circumstances.
Interpretation of Treaties

• Interpreted in good faith;

• In accordance with the ordinary meaning given to the terms of the
treaty in their context and in the light of its objects and purposes.
A special meaning shall be given to a term if it is established by the parties
so intended.
Amendment/Modification of Treaties
 • Consent of all the parties is required. However, if allowed by the
treaty itself, two states may modify a provision only insofar as they
are concerned.
Termination of Treaties

• Expiration of term, or withdrawal of a party in accordance with the

treaty;
• Extinction of one of the parties, when the rights and obligations under
the treaty would not devolve upon the state that may succeed the
extinct state;
• By mutual agreement;
• Denunciation of desistance by one of the parties (right of
denunciation);
• Supervening impossibility of performance;
• Conclusion of a subsequent inconsistent treaty between the parties;
• Loss of subject matter;
• Material breach or violation of treaty;
• Rebus sic stantibus;
• War between the parties;
• Severance of diplomatic relations
• Doctrine of jus cogens

Nationality and Statelessness

What is Nationality?
 It is the membership in a political community with its concomitant
rights and duties.

How do you determine a person’s nationality?

a) It is up to the State to determine under its own law who are its nationals.
This law shall be recognized by other States so it will be consistent with
International conventions, customs, and the principles of law generally
recognized with regard to nationality.

b) The law of the State shall determine any question as to whether a

person possesses the nationality of a particular State.

What are the modes of acquiring nationality?

1. By Birth
2. Naturalization
3. Repatriation
4. Subjugation
5. Cessation

Loss of Nationality

How is nationality lost?

The modes are the ff:

1. Release
2. Deprivation
3. Renunciation
4. Substitution

Mulitiple Nationality
 A person may find himself with more than one nationality.
 This may arise by the concurrent application of theprinciples of jus
sanguini and jus soli, naturalization without renunciation of the
original nationality, legitimation, or legislative action.

1. Policy of the Philippines

2. Resolution of Conflicts in multiple Nationality case

a) A person having two or more nationalities may be regarded as its

national by each of the state whose nationality he possesses.
 b) if a person has more than one nationality, he shall be treated as if he
had only one.

c) if a person, without any voluntary act of his own, has double

Nationality,he may renounce one of them with the permission of the
State who he wishes to surrender.

Philippine Laws and Citizenship

Statelessness
 It is the status of having no nationality, as a consequence of being
born without nationality
 As a result of deprivation or loss of nationality

In 1954, 22 countries including the Philippines concluded a convention

relating to the status of stateless persons. They have granted favor to
stateless people with respect to:

1. Freedom to practice their religion and freedom as regards the

religious education of their children
2. Access to the courts of Law
3. Rationing of products in short supply
4. elementary education
5. public relief and assistance
6. labor legislation and social security

Contracting States also agreed to accord stateless persons lawfully staying

in their territory treatment as favorable circumstances relative to:

1. Acquisition of movable and immovable property

2. Right of association in non-political and non-profitmaking associations
and trade unions.
3. Gainful employment and practice of liberal professions
4. Housing and public education other than elementary education
5. Freedom of movement
Treatment of Aliens
The general rule is that The State can determine in what cases and under
what conditions it may admit aliens.

1. The State has the power to regulate the entry and stay of aliens, and
the State has the right to expel aliens from its territory through
deportation or reconduction.
a) Expulsion or deportation
b) Reconduction

2. The alien must accept the institutions of the State as he finds them.
Accordingly, the alien may be deprived of certain rights

a) political rights
b) acquisition of land

Local laws may grant him certain rights and privileges based on:
[a] reciprocity;
[b] most-favored-nation treatment; or
[c] national treatment (equality between nationals and aliens in certain
matters)

Doctrine of State Responsibility

-A State is under obligation to make reparations to another State for the
failure to fulfill its primary obligation to afford
-The State may, therefore, be held liable for injuries and damages
sustained by the alien while in the territory of the State if:
1. The act or omission constitutes an international delinquency
2. The act or omission is directly or indirectly imputable to the State

Enforcement of Alien’s Claim.

1. Exhaustion of local remedies.

2. Resort to diplomatic protection
3. Modes of Enforcement of Claims
4. Extradition
Basis:
 treaty
 asylum

Distinguished from Deportation

 Extradition is the surrender of a fugitive by one state to another where
he is wanted for prosecution or, if already convicted, for punishment.
 Deportation is the expulsion of an alien who is considered
undesirable by the local state

3. Fundamental principles:

a) Based on consent
b) Under the principle of specialty
c) Any person may be extradited
d) Political and religious offenders are generally not subject to extradition.
e) In the absence of special agreement, the offense must have been
committed within the territory or against the interests of the demanding
state.

What is the procedure of Extradition?

a) Request, accompanied by the necessary papers relative to the identity of

the wanted person and the crime alleged to have been committed.
b) Upon receipt of the request, state of refuge will conduct a judicial
investigation to ascertain if the crime is covered by the extradition treaty.

What is the Extradition treaty of the Philippines?

 The “non-list” type

Letters Rogatory

What is an Asylum?
 It is the power of the State to allow an alien who sought refuge from
prosecution or persecution to remain within the territory and under its
protection.
 1. Principles on Asylum
a) Territorial Asylum
b) Diplomatic Asylum

What is the Rule in the Philippines?

1. Diplomatic Asylum- granted only to members of the official or

personal household of diplomatic representative.
2. Humanitarian Grounds- refuge may be granted to fugitives whose
lives are in imminent danger from mob violence but only during the
period when active danger persists.

REFUGEES
 any person outside the country of his nationality or has no nationality,
who because of fear is unwilling to avail himself of the protection of
the government of his country of nationality.

What are the Essential Elements?

1. Outside the country of nationality or if stateless, outside the country of
habitual residence
2. Lacks national protection
3. fears persecution

A refugee is treated as stateless either de jure or de facto

A refugee convention of 1951 does not deal wth admission but with non-
refoulment.
International society and International law

“Raft of the Medusa”

by Théodore Géricault

Peaceful disputes settlement in International law

Diplomatic methods of dispute settlement. Main rules
The International Court of Justice
WAR AND NEUTRALITY
1.OUTLAWRY OF WAR
2.Commencement of War
3.Effects of Outbreak of War
HIROSHIMA BOMBING EFFECTS

4.Participants in War

COMBAT;SPIES
RIGHT OF PRISONERS OF WAR

5.Conduct of hostilities

Principle of Military Necessity

Principle of Humanity

Non-Hostile Intercourse

Suspension of Hostilities

Termination of War
.