Chapter 5
The Concept of the State
Creation of the State
If an entity has acquired the four elements of people,
territory, sovereign, and government has achieved
the status of the state.
Acquisition can be through
1. Revolution
2. Unification
3. Secession
4. Assertion of Independence
5. Agreement
6. Attainment of Civilization
Principle of State
“Once identity as an international person has been
fixed and its position in the international community
is established, the state continues to be the same
corporate person whatever changes ay place in its
international person or and government.”
Extinction of the State
If there is radical impairment or more of the essential
elements of the state, It will result in it its extinction.
Succession of States
Succession takes place when one state assumes the
rights and some obligations of another because of
certain changes in the condition of the latter.
Succession may be
1. Universal – a state is annexed to another
state or is totally dismembered or merges
with another state to form a new state.
2. Partial – takes place when a portion of the
territory of a state secedes or is ceded to
another or when a independent state
becomes a protectorate or a suzerainty or
when a dependent state acquires full
sovereignty
Consequences of State Succession
1. Allegiance of the inhabitants of the
predecessor state in the territory affected is
transferred to the successor state;
2. Naturalized in masse;
3. Political laws are automatically abrogated and
may be restored only by a positive act on the
part of the new sovereign; Non-Political laws
are deemed continued unless explicitly
changed or in contrary to the institutions of
the successor state
4. Treaties of political and even commercial
nature, treaties of extradition, are
discontinued, except those dealing with local
rights and duties
5. all rights of the former are inherited by the
latter, but this is not so with liabilities;
Succession of Government
The rule:
The new government, organized by virtue of a
constitutional reform duly ratified in a plebiscite,
assumes the obligation of the old government.
New government established through violence may
lawfully reject the purely personal or political
obligations of the old government but not those
contracted by it in the ordinary course of official
business.
Chapter 6
Recognition
The recognition and admission of a new state is
dependent on the acknowledgment of its status by
those states within the international community
which has the willingness to enter into relation with
the new state as a subject of international law.
Majority theory, recognition is merely declaratory and
only affirms the fact that the entity being recognized
already possesses the status of an international
person.
Minority theory, recognition is constitutive, that it is
the last indispensable element that converts or
constitutes the entity to become an international
person; therefore, mandatory and legal and may be
demanded as a matter of right by the new state.
Recognition may be extended by individual states or
by a group of states.
In the Philippines, the President decides on the
question of recognition and his actions are
considered acts of state which are not subject to
judicial review.
Objects of Recognition
The objects of recognition are:
1. a state
2. a government
3. a belligerent community
Recognition of a State is generally held irrevocable
and imports the recognition of its government.
Recognition of a Government may be withdrawn and
does not necessarily recognize the state as the
government may be that of a mere colony.
Recognition of Belligerency, the rebels are accorded
international personality only in connection with the
hostilities they are waging; therefore does not
produce the result of the recognition of a state or of a
government.

Kinds of Recognition
1. Express – may be verbal or in writing.
2. Implied when the recognizing state enters
into official intercourse with the new state
through diplomatic acts
Recognition shall give an indication of an intention
1. to enter into a treaty with the new state;
2. accept the new government ;
3. recognize insurgents that they are entitled to
exercise their belligerent rights.
Recognition should not be extended to any
government established by revolution, civil war, coup
d’etat or other forms of internal violence until the
freely elected representatives of the people have
organized a constitutional government.
Stimson Principle
Recognition should not be extended to governments
established as a result of external aggression.
Estrada Doctrine
As it would saw fit, continue or terminate its relations
with any country in which a political upheaval had
taken place.

Recognition of States Modern Practice

It is the free act by which one or more states
acknowledges the existence of a new state, and by
which they manifest their intention to consider it a
member of the international community.
Recognition of a new government will be extended
only if it is shown that it has control of the
administrative machinery of the state with popular
acquiescence and that it is willing to comply with its
international obligations.

It can be established easily through peaceful Two criteria

methods such as plebiscite or agreement. 1. Objective Test – the government must be able to
Recognition of Governments maintain order within the state and to repel
external aggression
In recognition of new government of an already 2. Subjective Test – the justification of withholding
recognized state is the free act by which a state or of recognition from a government that is
several states acknowledge that a person or a group politically unacceptable.
of persons is capable of binding the state which they De Jure De Facto
claim to represent and witness their intention to 1. Relatively 1. provisional
enter into relations with them. permanent 2. does not
2. vests title in the 3. limited to certain
This is on the basis of political considerations. government to its juridical relations
Considerations are based on the method of transition properties abroad
of the new government which acquires the 3. brings full
governance from the previous government. diplomatic
relations
De jure government may not pose international
misunderstanding in case of premature recognition,
although de facto government poses a problem for it
acquires the governance through use of force Effects of Recognition of States and
claiming that it has rights over the de jure Governments
government.
1. Full diplomatic relations are established
Three kinds of de facto government except where the government recognized is
de facto.
1. Revolution of inhabitants against the 2. It acquires the right to sue in the courts of the
legitimate regime; Commonwealth recognizing state.
established by Oliver Cromwell against 3. It gives the right to the possession of the
Charles I of England. properties of its predecessor in the territory
2. Those that are established in the course of of the recognizing state.
war by the invading forces of one belligerent 4. All acts of the recognized state or
in the territory of the other belligerent. government are validated retroactively,
Japanese-American war in the Philippines preventing the recognizing state from passing
replacing the commonwealth government. upon their legality in its own court.
3. Those that are established by the inhabitants
by seceding without overthrowing its Recognition of Belligerency
government. Confederate government of
America during the American Civil War. Belligerency
There is belligerency when the inhabitants of a state
Tobar or Wilson Principle (1907 by Tobar of Ecuador rise up in arms for the purpose of overthrowing the
and 1913 by Woodrow Wilson of US) legitimate government. An internal affair of the state
and does not create much international repercussion.
Insurgency v.s. Belligerency
Insurgency Belligerency
1. Initial stage of 1. More serious and
belligerency widespread
2. Directed by 2. Under civil
military government
authorities
3. Usually not 3. There are settled
recognized rules regarding
its recognition
Recognition is extended to belligerents when the
following conditions are established:
1. There must be an organized civil government
directing the rebel forces.
2. The rebels must occupy a substantial portion
of the territory of the state.
3. The conflict between the legitimate
government and the rebels must be serious,
making the outcome uncertain
4. The rebels must be willing and able to
observe the laws of war
Consequences of Recognition of Belligerency
The belligerent community is considered a separate
state for purposes of the conflict it is waging against
legitimate government. During the hostilities, their
relation shall be governed by the laws of war and
their relations with other states shall be subject to
the laws of neutrality.
If recognition is extended by third states,
consequences are only effective to them and do not
bind other states not extending recognition, unless
the parent state recognizes, it becomes general and
legally applicable to all other states.
Chapter 7
Right of Existence and Self Defense
It is considered as the most important fundamental
right of a state because other rights are derived or
supposed to flow from it. The state may take
measures, including the use of force, as may be
necessary to resist any danger to its existence. Its
validity is not dependent on the previous recognition
of the state asserting it or on the consent of other
states.
Requisites of Right
Article 51 of the Charter of the United Nations:
Nothing in the present Charter shall impair the
inherent right of the individual or collective self-
defense if any armed attack occurs against a member
of the United Nations, until the Security Council has
the taken the measure necessary for the
maintenance of international peace and security.
1. The armed attack faced by a state requires a
necessity of self-defense instant,
overwhelming and leaving no choice of
means and no moment of deliberation.
2. The self-defensive measures must be limited
b the necessity and kept clearly within it.
“The best defense is offense,” is the more practical
consideration.
Balance of Power
The reason for organizing a regional arrangements is
to provide for the balance of power – “an
arrangement of affairs so that no state shall be in
position to have absolute mastery and dominion over
others.”
Aggression Defined
Aggression is the use of armed force by a state
against the sovereignty, territorial integrity, or
political independence of another state, or in any
other manner inconsistent with the Charter of the
United Nations.
Chapter 8
The Right of Independence
Sovereignty is the supreme uncontrollable power
inherent in a state by which that state is governed. It
enables the state to make its own decision vis-à-vis
other states and vest it with competence to enter into
relations and agreements with them.
Two aspects:
1. Internal – the power of the state to direct its
domestic affairs.
2. External – signifies the freedom of the state
to control its own foreign affairs.
Independence is the external aspect or manifestation
of sovereignty.
Nature of Independence
Independence is not absolute freedom. The
independence of a state is of necessity restricted by
the requirement of the international community.
Pacta Sunt Servanda
Mare liberum
Intervention
It is an act by which state interferes with the
domestic or foreign affairs of another state or states
through the employment of for or threat of force
which may physical, even political or economic.
Valid exercise of Intervention
1. exercised as an act of self-defense
2. When it is decreed by the Security Council as
preventive or enforcement action for the
maintenance of international peace and
security.
3. action is agreed upon in a treaty
Drago Doctrine
Hague Convention of 1907
“Contracting powers agree not to have recourse to It is when the state exercising sovereignty over the
armed force for the recovery of contract debts territory physically withdraws from it without the
claimed from the government of one country by the intention of abandoning it altogether
government of another country as being due to its
nationals.” Requisites
1. The act of withdrawal
Porter Resolution 2. Intention to abandon
“Intervention is permitted if the debtor state refused
an offer to arbitrate the creditor’s claim, or having Cession
agreed to arbitrate, prevented agreement on the It is the method by which territory is transferred from
compromise, or having agreed thereto, refused to one state to another by agreement between them
abide by the award of the arbitrator. (sale, donation, barter or exchange and by
testamentary disposition.)
Chapter 9
The Right of Equality Subjugation
It is acquired by subjugation when, having been
Principle of Equality previously conquered or occupied in the course of
All the rights of the state, regardless of their number, war by the enemy, it is formally annexed to it at the
must be observed and respected by the international end of the war.
community in the same manner that the rights of Components of Territory
other states are observed and respected. 1. Terrestrial Domain – land mass
2. Maritime Domain & Fluvial Domain – the body
Par in parem non habet imperium of water within the land mass and the waters
adjacent to the coast of the state up to a
Legal Equity v.s. Factual Inequality specified limit.
3. Territorial Sea – the belt of water adjacent to
Chapter 10 the coasts of the state, excluding the internal
Territory waters in bays and gulfs, over which the state
claims jurisdiction and sovereignty.
It is the fixed portion of the surface of the earth
inhabited by the people of the state. It must be UN Conferences on the law of the Sea
permanent and indicated with precision because its (UNCLOS)
limits generally define the jurisdiction. a. Territorial Sea - Breadth of twelve
miles for the territorial sea
Acquisition and Loss of Territory b. Contiguous Zone – twelve miles from
Territory may be acquired by: the outer limits of the territorial sea
1. Discovery and Occupation c. Economic Zone or Patrimonial Sea –
2. Prescription extending two hundred miles from
3. Cession the low-water mark of the coastal
4. Subjugation state
5. Accretion
Archipelago Doctrine
It may be lost by: Archipelago is a group of islands, including
1. Abandonment or dereliction parts of islands, interconnecting waters and
2. cession other natural features which are so closely
3. subjugation interrelated that such islands, waters, and
4. prescription other natural features form an intrinsic
5. erosion geographical, economic and political entity,
6. revolution or which historically have been regarded as
7. natural causes such.

Discovery Straight baseline Method is used for

Requisites
a. possession
b. administration
Inchoate Title of Discovery performs the function of
barring other states fro entering the territory until
the lapse of a reasonable period within which the
discovering state may establish a settlement
thereon and commence to administer it.
Dereliction
archipelagos.
Methods of Defining the Territorial Sea
1. Normal Baseline Method
From the low-watermark of the coast, to
the breadth claimed, following its
sinuosities and curvatures but excluding
the internal waters in bays and gulfs.
2. Straight Baseline Method
Straight lines are made to connect
appropriate points on the coast without
 departing radically from its general b. Immunity from the jurisdiction – immune from
direction. the jurisdiction of the receiving state.
c. Inviolability of Diplomatic Premises – except
4. Aerial Domain – airspace above the other with the consent of the head mission.
domains but not including outer space. d. Inviolability of Archives
e. Inviolability of Communication
Chapter 11 f. Exemption from testimonial duties – not
JURISDICTION obliged to give evidence as witness
g. Exemption from taxation
Jurisdiction is the authority exercised by a state over h. Other privileges
persons and things within or sometimes outside its
territory, subject to certain exceptions. Diplomatic Suite or Retinue

Jurisdiction may be exercised by a state over: Immunities and privileges are available not only to
the head of the mission, his family, also to his
1. its nationals (Personal Jurisdiction) diplomatic retinue
2. terrestrial domain
3. maritime and fluvial domain Chapter 13
4. the continental shelf Consuls
5. the open seas
6. the aerial domain Consuls are state agents residing abroad for various
7. outer space purposes but mainly in the interest of commerce and
8. other territories navigation. Not charged with the duty of
representing their states in political matters nor they
are accredited to the state where they are supposed
to discharge their functions.

Kinds and Grades

Chapter 12
THE RIGHT OF LEGATION
It is one of the effective means of facilitating and
promoting intercourse among states.
Agents of Diplomatic Intercourse
1. Head of the state
2. Foreign Secretary or Minister
3. Members of the Diplomatic Service
4. Envoys Ceremonial
5. Envoys Political
Doyen du corps – the head of the diplomatic corp and
the highest ranked or oldest member of the group.
Appointment of Envoys
Agreation – informal inquiries are addressed to the
receiving state regarding proposed diplomatic
representative of the sending state
Agrement – Consent given by the receiving state.
Commencement of the Diplomatic Mission
Letter of Credence – he is accredited to the receiving
state with the request that full faith be given to his
official acts on behalf of the sending state.
Diplomatic Immunities and Privileges
a. Personal Inviolability – not liable to any form
of arrest or detention
1. Consules Missi – are professional or career
consuls who are nationals of the appointing
state.
2. Consules Electi – may or may not be nationals
of the appointing state and perform their
consular functions only in addition to their
regular callings.
Consul-general, consul, vice-consul and consular
agent
Appointment
Consuls derive their authority from:
1. Letter patent or let re de provision – the
commission issued by the sending state.
2. Exequator – authority given to them by the
receiving state to exercise their duty therein.
Principal duty of Consuls
Commerce and navigation, issuance of passports and
visas,
To promote the commercial interests of their country
in the receiving state and to observe commercial
trend and developments therein.
Inspecting vessels of their own states which may be
in the consular district.
Chapter 14
Treaties
Functions of Treaties
1. Settle actual and potential conflicts
 2. Modify the rules of international customary
law by means of optional principles or
standards.
3. Lead to transformation of unorganized
international society into one which may be
organized.
4. humus for the growth of international
customary law
Essential Requisites of a valid treaty
a. parties with treaty making capacity
b. authorized representatives
c. without the attendance of duress, fraud,
mistake, or other vice of consent
d. on any lawful subject matter
e. in accordance with respective constitutional
processes.
Treaty-making Process
1. Negotiation
2. Ratification
3. Exchange Instruments of Retification
Doctrine of rebus sic stantibus
It constitutes an attempt to formulate legal principle
which would justify the non-performance of a treaty
obligation if the conditions with relation to which
parties contracted have changed so materially and so
unexpectedly as to create a situation in which the
exaction of performance would be unreasonable.
Chapter 15
Nationality and Statelessness
Nationality
From which he can claim protection and whose laws
he is obliged to obey. Membership in political
community.
Citizenship
Applies to certain members of the state accorded
more privileges than the rest of the people who also
owe it allegiance.
Acquisition of Nationality
1. Direct
2. Derivative
The condition or status of an individual who is born
without any nationality or who loses his nationality
without retaining or acquiring another.
Chapter 16
Treatment of Aliens
Doctrine of State Responsibility
A state may be held responsible for
1. International delinquency
2. Directly or indirectly imputable to it
3. Causes injury to the national of another state
International Standard of Justice
Failure of Protection or Redress
The state may be held liable if it does not make
reasonable efforts to prevent injury to the alien, or
having done so fails to repair such injury.
Exhaustion of Local Remedies
Foreigners must exhaust first all available local
remedies for the protection or vindication of his
rights.
State must be given an opportunity to do justice in its
own regular way without unwarranted interference
with its sovereignty by other states.
Resort to Diplomatic Protection
After exhausting all local remedies, he may avail
himself of the assistance of his state.
Damnum Absque injuria – when the injured alien is
stateless.
Enforcement of Claim
International claim for damages may be resolved
through negotiation or any other methods of settling
disputes.
Calvo Clause
This is a stipulation by which alien waives or restricts
his right to appeal to his own state in connection with
any claim arising from the contract and agrees to
limit himself to the remedies available under the laws
of the local state.

Doctrine of indelible allegiance

An individual may be compelled to retain his original
nationality notwithstanding that he has already
renounce or forfeited it under the laws of a second
whose nationality he has acquired.

Loss of Nationality
1. Voluntary
a. renunciation
b. request for release
2. Involuntary
a. forfeiture
b. substitution

Statelessness