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PUBLIC INTERNATIONAL LAW by Various Authors

Reviewer by Alena Icao-Anotado

I. Nature and Scope of International Law

 Has been expanded in scope to include other entities besides states.

Q: What is International Law?

1. The traditional definition of international law is that it is a body of rules and principles of action which are binding upon civilized states in
their relations to one another.
2. The modern definition of international law is the law which deals “with the conduct of states and of international organizations and with their
relations inter se, as well as with some of their relations with persons, whether natural or juridical.” (the Restatement (Third) of Foreign
Relations Law of the United States)

Law – in its general definition is  is laid down by a legitimate authority, unlike in International law.
International Law  is not laid down by any authority

II. Divisions of International Law

Q: What are the 3 Grand Divisions of International Law?
1. Laws of Peace – govern the normal relations of states until war breaks out
2. Laws of War – govern the laws of states (in war) during the duration of war or hostilities; those states not involved in war continue to be
regulated under the laws of peace
3. Laws of Neutrality – govern the relations of states to belligerents or those involved in the war

III. Distinction, Private International Law and Public International Law

Q: What is Private International Law?

A: It is that part of the law of each state which determines, when in dealing with a factual situation, or an event or transaction between private
individuals or entities involving a foreign element--- whether the law of some other State will be recognized.

Art. 17 of the NCC – is an example of conflict of laws in Private International law.

IV. Distinction, Public International Law and Municipal Law

Public International Law vs. Municipal Law according to various Viewpoints/Doctrines
1. The Monist View
 They believe that PIL and Municipal Law are NOT different. Reason: Some fundamental notions of International law cannot be
understood without the assumption of a more superior legal order from where various systems of Municipal law are also derived
Imposed
 Believe that PIL is more superior than Municipal Law, since the former determines the jurisdictional limits of the personal and
territorial competence of States.
2. The Dualist
 Believe that PIL and Municipal Law are completely two different realms, and each has certain well-established differences
Municipal Law Public International law
issued or imposed by a political superior for observance by Is not imposed but simply adopted by states as a common rule
those under its authority; of action among themselves
Hence, more superior since it is a law of a sovereign over its a weaker law
subjects
Consists mainly of enactments from the lawmaking authority Not derived from any particular legislation but derived from
of each state sources such as international customs, international
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conventions and general principles of law

Regulates the relations of individuals among themselves or Applies to relations inter se of states and other international
with their own states persons
Violations are redressed through local administrative and Questions/issues are resolved through state-to-state
judicial processes transactions thru peaceful methods like negotiations and
arbitration or if not thru hostile arbitrament of force e.g. war
Breaches/violations only require individual responsibility Breaches/violations are collective and attaches to the (whole)
state and not to its nationals or citizens

Q: Can principles of municipal law become part of international law?

A: Yes. It becomes part when the principle is embodied in a treaty or convention e.g. Hague Conventions of 1899 and 1907 on personal status.
Thus it can become part pursuant to the following doctrine:
A. Doctrine of Incorporation
 By mere constitutional declaration, international law is deemed to have the force of municipal or domestic law .
 Applicable to customary rules accepted as binding to all states-has the character of opinion juris sive necessitates (opinion as to
law or necessity).
Basis also is: Art. II, Sec. 2 1987 Phil. Constitution which states 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. (JEF, PACo)

B. Doctrine of Transformation
 The generally accepted rules of international law are not per se binding upon the state but must first be embodied in the legislation
enacted by the lawmaking body and so transformed into municipal law. Only when so transformed will they become binding upon
the state as part of its municipal law.
Basis also is: Art. VII, Sec. 21 of Phil. Constitution which states No treaty or international agreement shall be valid and effective
unless concurred in by at least twothirds of all members of the senate.

Corollary to the two doctrines is the Principle of Pacta sunt servanda:

In International law, treaties and executive agreements are equally binding commitments of the contracting states under the maxim pacta sunt
servanda. Every state has the duty to carry out in good faith its obligations arising from treaties or other sources of international law, and it may
not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty.
 Because of this, there is a conflict hence a solution is not yet in sight.

Various positions on which should be upheld between the Constitution vs. Treaties:
 The position of the Philippines is that the Supreme Court is authorized to decide, among others, all cases involving the constitutionality
of “any treaty, international or executive agreement, law..”
 Jurisprudence supporting this view, include:
 Inchong vs. Hernandez, G.R. No. L-7995: But even assuming that the law infringes upon the said treaty, the treaty is
always subject to qualification or amendment by a subsequent law, and the same may never curtail or restrict the scope
of the police power of the State.
 Gonzales vs. Hechanova, G.R. No. L-21897: Although the President may, under the American constitutional system
enter into executive agreements without previous legislative authority, he may not, by executive agreement, enter into a
transaction which is prohibited by statutes enacted prior thereto. Under the Constitution, the main function of the
Executive is to enforce laws enacted by Congress. The former may not interfere in the performance of the legislative
powers of the latter, except in the exercise of his veto power. He may not defeat legislative enactments that have
acquired the status of law, by indirectly repealing the same through an executive agreement providing for the
performance of the very act prohibited by said laws.

Q. Is PIL a binding law?

In so far as a particular international norm is observed and considered binding by states, then they may be considered as law. But to say that it is
law is not to say that it is applicable and binding on all states. Not necessarily. It depends on what kind of norm or PIL we are talking about.

TN:
This is especially true in light of the persistent objector principle.
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It is a law between states that are compelled to obey it by reason of being a party to a treaty or convention, or because the norm or the PIL
partakes of the nature of a Jus Cogens norm that had been treated by all civilized states as non-derogable.

Q. Give an example of a PIL that may be binding on all states.

A: Jus Cogens – a norm treated by all civilized states as non-derogable. Examples are prohibitions against torture, slavery and genocide.

Q: Is International Law a true law? What is that gives binding force to international law? Or in this case, what is the basis of International Law?
It depends on the school of thought which one follow.
A. Law of Nature- states that there is a natural and universal principle of right and wrong, independent of any mutual intercourse or
compact.
 This principle of right and wrong must therefore be discovered and recognized by every individual through the use of his reason
and his conscience.
 And since the state is bound by the collective will of its inhabitants, then the state itself also becomes bound by the law of
nature.
 Therefore it is not a law between but above states. PIL is therefore more superior.
B. Positivist Theory- states that the binding force of international law is derived from the agreement of sovereign states to be bound by it. It
is not a law of subordination but of coordination. PIL and municipal law may be reconciled depending on the agreement between the
states.
C. Eclectic Theory- Proposes that both the law of nature and the consent of States serve as basis of international law; to the effect that the
system of international law is based on the dictate of right reason as well as the practice of states.

Q: Assuming that International Law is binding upon states, what compels its obedience? Are there Sanctions?
A: Despite its serious handicaps, there are a number of factors that more or less induce observance. Such sanctions may consists of “appeal to
public opinion, publication of correspondence, censure by Parliamentary vote, demand for arbitration with the odium/abhorrence which is
attendant on refusal to arbitrate, rupture of relations, reprisal, etc.  means negative perception from the international community or other states?
But regardless, States are believed to observe Public International Law because of:
1. Belief in the reasonableness of the Law of Nations.
 And the common conviction that its observance will redound to the welfare of the whole society of nations.
2. Normal habits of obedience ingrained in the nature of man as a social being.
3. Fear of being unconventional.
 Respect for world opinion held by most states or their desire to project an agreeable public image in order to maintain the goodwill
and favorable regard of the rest of the nations.
 The West is projecting a world image that they are protecting inferior states, and projecting Russa as an aggressor.
4. Fear of reprisal (reciprocal advantage) and retaliation from other states.
5. Machinery of the United Nations
 Has moral influence, coupled with its power to employ physical force whenever warranted.

What the functions of Public International Law?

A. The maintenance of international peace and order;
B. The protection of State rights and of fundamental human rights thru sanctions, both peaceful and coercive;
C. The economic, social, cultural and technological development of states and such other entities as may be possessed of an international
personality.

V. Sources of International Law

Q: What are the Sources of International Law?
A. Primary Sources:
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1. Treaties- The general rule is that for a treaty to be considered a direct source of international law, it must be concluded by sizable
number of states and thus reflect the will or at least the consensus of the family of nations.
Example: lawmaking treaties like the Peace of Wesphalia of 1648, the Geneva Red Cross Convention of 1864.

Question: Are all treaties considered a direct source of international law?

A: No, not every treaty can be considered a direct source of international law as it is not always concluded by great body of states, such
as bilateral treaties. E.g. a bilateral treaty is only binding between the parties especially if a dispute arose between them, and cannot
apply to the rest of the international community. Hence, such a treaty is a source only of “particular international law.”

2. Custom- A practice which has grown up between states and has come to be accepted as binding by the mere fact of persistent usage
over a long period of time. Custom is distinguished from usage. The latter while also a long established way of doing things by states is
not coupled with the conviction that it is obligatory and right.

Requisites/Elements of International Custom

1. Duration or long state practice.
2. Consistency of the state practice or the widespread repetition by states of similar international acts over time.
3. Generality of the state practice or that the acts are taken by a significant number of states and not rejected by a significant
number of states.
4. Opinio juris sive necessitates or the requirement that the acts must occur out of a sense of obligation.

3. General Principles of Law- Mostly derived from the law of nature and are observed by the majority of states because they are believed
to be good and just (e.g. prescription, estoppel, consent, res judicata and pacta sunt servanda).

B. Secondary Sources:
These sources are not authorities in deciding a case but only have a persuasive effect because it only shows the interpretation of a state to a
particular international law.
1. Decisions of International tribunals (e.g. International court of Justice) and decisions of the National Court
2. Writings and teachings of the most highly qualified publicists

VI. The International Community

a. Subject and Object Distinguished

Q. How would you know that the states are the subjects while its individuals are the objects?
A. Subject – bearer of rights with the power to maintain and pursue such rights e.g. nations, those with international personality
B. Object – not a bearer of rights nor can pursue claims.

b. States
i. People
ii. Territory
iii. Government
iv. Sovereignty

VII. Capacity of States

VIII. The Concept of the State
a. Creation

b. The Principle of State Continuity

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c. Extinction of State

d. Succession of States

e. Succession of Governments
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Means to say that the abovementioned governmental machinery are not affected by a change in government e.g. elections

IX. Recognition of States

Recognition of States - The recognition of a new state is the free act by which one or more states acknowledge the existence on a definite
territory of a human society politically organized, independent of any existing state, and capable of observing the obligations of international law,
and by which they manifest therefore their intention to consider it a member of the international community.

Q: Who recognizes states?

A: Heads of States, prime ministers are the entities who recognize states.

Means that if all the elements of the creation of the state are present, it is automatic that the recognizing state recognizes the government. The
declarative view is more favored. It is always discretionary on the part of the recognizing state whether they will recognize. It can recognize both
governments as well as belligerent communities.

Does the Philippines recognize Taiwan as a state?

A: NO. Because the Phils. does not have an embassy in Taiwan.

a. Stimson Doctrine
b. Tobar/Wilson Doctrine
c. Estrada Doctrine
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X. Different Kinds of Recognition

a. Express
b. Implied
c. De Facto
d. De Jure

Recognition of Belligerency  Belligerency exists when the inhabitants of a state rise up in arms for the purpose of overthrowing the legitimate
government.

XI. De Facto and De Jure Government

Under the Tobar doctrine, the recognizing state may still recognize a state established thru revolutionary means, as a de facto since some
requirements for recognition are still absent.

a. Corazon C. Aquino’s Government

b. Gloria Macapagal-Arroyo’s Government
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XII. Effects of Recognition

 If no states enters diplomatic relations with another state, then the claim of existence of the latter state is useless.

XIII. Vatican City and the Holy See

XIV. Belligerent and Insurgent Communities

Insurgency is not recognized because it is yet an internal matter.

XV. United Nations

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a. The U.N. Charter

b. The Preamble to the Charter

c. Purposes
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d. Membership

e. Expulsion of Members
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f. Withdrawal of Members

g. Organs of the United Nations

1. The General Assembly

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2. The Security Council

3. The Economic and Social Council

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4. The Trusteeship Council

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When was the case filed against the president? And was withdrawal made?

Read the latest decision of the SC – what are the effects of the withdrawal, to the case filed?
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Submit answers to the take home quiz on the 28 th.

https://docs.google.com/forms/d/e/1FAIpQLSdQVh9aFC-9BC60BF97 vq-9XZ_GQKQy3m9tpiUc2W54EATQjQ/viewform

Q: What is a de jure vs. de facto government?

Was the government under Corazon C. Aquino a revolutionary government?

Yes. The government under Corazon C. Aquino was a revolutionary government. It was a revolutionary form of government, as it was declared by
Aquino following the People Power Revolution in 1986, and with the purpose to reinstate the democracy that was halted when former Ferdinand
Marcos declared Martial Law. This government under Aquino was established with the signing of the “Freedom Constitution” or a transitional
constitution to ensure democracy and the freedom of the people.
It was a revolutionary government because it was installed by the People Power Revolution.

Was it a de jure government of a de facto government?

The Aquino government was "not merely a de facto government but in fact and law a de jure government", whose legitimacy had been affirmed by
the community of nations. As held in the case of Lawyers League v. President Aquino, G.R. No. 73748, the court declared that it was the people
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who have made the judgment; they have accepted the government of President Corazon C. Aquino which is in effective control of the entire
country so that it is not merely a de facto government but in fact and law a de jure government. Moreover, the community of nations has
recognized the legitimacy of the present government. All the eleven members of this Court, as reorganized, have sworn to uphold the fundamental
law of the Republic under her government.

Was the government of Gloria Macapagal-Arroyo a revolutionary government? *

No. As held in the case of Estrada, vs. Gloria Macapagal-Arroyo, G.R. No. 146710-15 - March 2, 2001, the government of Gloria Macapagal-
Arroyo is not revolutionary in character. The oath that she took at the EDSA Shrine is the oath under the 1987 Constitution. While EDSA I which
installed the Aquino government involved the exercise of the people power of revolution which overthrew the whole government. EDSA II was an
exercise of people power of freedom of speech and freedom of assembly to petition the government for redress of grievances which only affected
the office of the President.
AB: It was not a revolutionary government, because Arroyo’s government succeeded the Estrada government.

Was it a de facto or de jure government? *

The government of Gloria Macapagal-Arroyo was a de jure government. As held in the concurring opinion of Justice Vitug in the same case of
Estrada, vs. Gloria Macapagal-Arroyo, G.R. No. 146710-15, the new government of Macapagal-Arroyo was a de jure government both in fact and
in law, since her new government which undoubtedly became in effective control of the entire country, domestically and internationally came to be
recognized as the legitimate government by the people and recognized by the community of nations at that time.

How is an applicant for membership be admitted in the United Nations? *

In addition to the original members, other members may be admitted to the United Nations by decision of the General Assembly upon the
favorable recommendation of the Security Council. To be eligible for admission, the applicant must possess the following qualifications, namely: 1)
that it must be a state; 2) that it must be peace loving; 3) that it must accept the obligations of the Charter; 4) that it must be able to carry out these
obligations; and lastly 5) that it must be willing to carry out said obligations.

How is a member suspended? *

A member of the UN against which preventive or enforcement action has been taken by the Security Council may be suspended from the exercise
of its rights and privileges, through a vote by two-thirds of those present and voting in the General Assembly upon the favorable recommendation
of at least nine members of the Security Council, including its permanent members.

How is a member expelled? *

A member which has persistently violated the principles contained in the Charter may be expelled by two-thirds of those present and voting in the
General Assembly upon the recommendation of the Security Council by a qualified majority vote.

Can a member withdraw its membership to the U.N.? *

Yes, however it was intended that no provision on withdrawal be included in the Charter, although there is actually no compulsion for continued
membership if the member feels constrained to withdraw due to exceptional circumstances. No provision on withdrawal from membership was
included because of the fear that it might encourage successive withdrawals that would weaken the Organization.

What is the Yalta formula? *

Voting in the Security Council is governed by the Yalta formula as devised at the Crimea Conference and subsequently incorporated in Art. 27 of
the Charter. According to this formula, each member shall have one vote. But distinction is made between the Big Five and the non-permanent
members in the resolution of substantive questions. Procedural matters are to be decided by the affirmative vote of any nine or more members.
Decision on nonprocedural matters, on the other hand, requires the concurrence of also at least nine (9) members, but including all the
permanent members. However, no member, permanent or not, is allowed to vote on questions concerning the pacific settlement of a dispute to
which it is a party.

What is a "double veto"? Who exercises it? *

The double veto is exercised by the big five or permanent members of the Security Council, a permanent member of the council may determine
whether a matter is procedural or substantive is non-procedural.
XVI. Rights of States
XVII. The Right of Existence and Self-Defense
A. Existence and Self-Preservation.
i. By far the most basic and important right. 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. It is eventually the Security Council which determines whether or not an “armed attack”
has taken place.

ii. 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. The first use of armed force by a State in contravention of the UN Charter is prima
facie evidence of an act of aggression.
a) Other principles: No consideration of whatever nature, political, economic or military, can justify aggression; a war of
aggression is a crime against international peace which will give rise to international responsibility; no territorial acquisition or
special advantage resulting from aggression shall be recognized as lawful. But all these are without prejudice to the right of
self-determination. freedom and independence of peoples deprived of such rights, nor the right of these peoples to struggle to
that end and to seek and receive support.
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 Means that those who revolt or apprise against their government is not considered aggression.

XVIII. The Right of Independence

i. Sovereignty 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. Independence is the freedom to conduct foreign relations without outside control. The right to
independence is a natural aspiration of peoples, but it is not an absolute freedom. Valid restraints may consist in the obligation to observe
the rights of others; treaty stipulations; and obligations arising from membership in international organizations.

ii. Intervention. Act by which a states interferes in the domestic or foreign affairs of another state through the use of force or threat of force
(whether physical, political or economic). See Nicaragua vs. US, Communique 86/8, June 27, 1986, where 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.
a) Intervention used to be justified by various reasons, from preservation of the balance of power, pre-emptive self-defense,
enforcement of treaty obligations, collection of debts (later prohibited by the Drago Doctrine embodied in the Hague Convention
of 1907, which provided that the contracting powers agree not to have recourse to armed force for the recovery of contract debts
claimed from the government of one country by the government of another country as being due its nationals). This was
weakened by the Porter Resolution.... but
b) 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 within the 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.
c) At present, intervention is allowed only as an act of individual or collective self-defense in response to an armed attack; pursuant
to treaty stipulations; or with prior UN authorization.
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e.g. example of force was the blockages established by Great Britain, Italy and Germany against Venezuel in order to force it to comply with
certain contractual and other obligations owing to the blockading powers.

XIX. The Right of Equality

i. Art. 2, UN Charter, states that the organization is based on the principle of sovereign equality of all its members. But what is really
guaranteed is legal — or sovereign — equality: “equal in law, rights of sovereignty, personality, territorial integrity and political
independence respected by others”. This is exemplified in the General Assembly where each member is entitled to one vote; but there
may be no equality in fact, e.g., voting in the UN Security Council.

ii. 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].
a) A state should not inquire into the legal validity of the public acts of another state done within the territory of the latter. For this
purpose, considerations such as motive are immaterial. Thus, in Underhill vs. Hernandez, the US court refused to inquire into
the acts of Hernandez (a Venezuelan Military Commander whose government was.later recognized by the US) in a damage
suit brought in the US by an American who claimed that he had been unlawfully assaulted, coerced and detained by
Hernandez in Venezuela. However, in the Sabbatino case the U.S. court said that no court in the US should decline because
the act of state doctrine seems to make a determination on the validity of the confiscation of property by a foreign state a
violation of the principle of international law.
b) In Republic of the Philippines vs. Marcos, 806 Fd. 344, US Court of Appeals, the act of state dqctrine or the principle of
sovereign immunity, invoked by Ferdinand Marcos, was not appreciated inasmuch as there was no evidence adduced which
showed that the acts were public, i.e., that the Marcos wealth was obtained through official expropriation decrees and the like.
Besides, acts of torture, execution and disappearance were clearly acts outside of the President’s authority and are not
covered by the act of state doctrine.

iii. Doctrine of State Immunity. As a consequence of independence, territorial supremacy and equality, a state enjoys immunity from the
exercise of jurisdiction (legislative, executive or judicial) by another state, unless it has given consent, waived its immunity, or voluntarily
submitted to the jurisdiction of the court concerned. Neither may its public property be attached or taxed, nor its public vessels be
boarded, arrested or sued. This is based on the principle of par in parem non habet imperium. The state’s immunity extends to the Head
of State who is the personification of the state [See Mighell vs. Sultan ofJohore, 1 QB 149, where the Sultan, who was certified by the
British Minister of the Crown as having the status of a head of state, was held to be immune from the jurisdiction of English courts].
a) Restrictive application of the doctrine. This immunity, however, is recognized only with respect to sovereign or public acts of
the state, and cannot be invoked with respect to private or proprietary acts. [See U.S. vs. Ruiz, 136 SCRA 487, where the
Supreme Court classified contracts entered into by the state into those in jure imperii and those in jure gestionis. See also US
vs. Guinto, 182 SCRA 644, where the contract involved a concession for a barber shop facility in the naval base, and was
considered a contract in jus gestionis.] Neither may this immunity be invoked when the foreign state sues in the courts of
another state, for then it is deemed to have submitted itself to the ordinary incidents of procedure and thus, a counterclaim
may be validly set up against it.
b) On labor contracts, see US vs. Rodrigo, 182 SCRA 644 (cook in restaurant at USAF recreation center operated for profit); and
JUSMAG Phil, vs. NLRC, 239 SCRA 224, where it was held that when JUSMAG hired private respondent it was performing
governmental functions pursuant to the military assistance agreement of March 21, 1947.
c) Immunity extends to diplomatic personnel to the United Nations its organs and specialized agencies, and to international
organizations. See: Lasco vs. UN Revolving Fund for Natural Resources Exploration, 241 SCRA 681; World Health
Organization vs. Aquino, 48 SCRA 242; International Catholic Migration vs. Calleja, 190 SCRA 130; Callado vs. International
Rice Research Institute, 244 SCRA 210; and SEAFDEC vs. NLRC 241 SCRA 580.
d) Waiver of immunity. The state is deemed to have waived its immunity when it gives consent at the time the proceeding is
instituted; when it takes steps relating to the merits of the case before invoking immunity; when, by treaty or contract, it had
previously given consent; or 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. Thus, in Republic of the Philippines vs. Ferdinand Marcos, supra., the U.S. Court
of Appeals rejected the Marcos defense of immunity of the head of state, because this immunity is waivable, and the same
had been waived by the Philippine Government.
e) See also discussion on JURISDICTION, infra.
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a. Legal Equality v. Factual Inequality

XX. Territory
a. The Terristrial Domain
b. The Maritime and Fluvial Domain
i. Rivers
ii. Bays
iii. The Territorial Sea
iv. UNCLOS
v. The Philippine Territorial Sea
vi. The Archipelago Doctrine

 Read Magalona vs. Ermita case.

vii. Methods of Defining the Territorial Sea

viii. The Aerial Domain

XXI. Jurisdiction
a. Personal
 the power exercised by a state over its nationals.
 Rendered passé by territorial jurisdiction.
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Examples of Personal Jurisdiction:

b. Territorial
c. CASES:

Read the following cases above – to be tackled in the next meeting

Continue with Territorial Jurisdiction next meeting

CASES:
Credit Suisse v United States District Court for the Central District of California No. 97-70193, December 03, 1997
Text case: https://caselaw.findlaw.com/us-9th-circuit/1136790.html
FACTS:
This case is a petition for a Writ of Mandamus by the Credit Suisse and Swiss Bank Corp in the United States Court of Appeals, to dismiss the
action sought by respondents, Loretta Ann Rosales and several others.
 In 1986 after Ferdinand Marcos fled the Philippines following revolution, 10,059 plaintiffs who claimed to be victims of torture, summary
execution and disappearance under the Martial law period, filed suits for damages in the federal district court in Hawaii, in the form of a
class action against the Estate of Marcos (MARCOS), for human rights violations. So in this lawsuit or what you call the Multi-District
Litigation Case, the human rights victims won a $1,964,005,859.90 judgment against the Estate of Ferdinand E. Marcos. Along with that,
the plaintiffs in the MDL case then filed an action (Also called the Roseta Action) directly against the Credit Suisse and Swiss Bank
Corporations, which held various bank accounts under Marcos. This action sought to:
1) restrain the Banks from transferring or otherwise conveying any funds or assets held by the Banks on behalf of the Marcos
Estate except as ordered by the district court;  and
2) declare that the Chinn assignment was valid and binding on the Banks. This assignment purported to assign to Robert Swift,
counsel for the MDL plaintiffs, all of the Estate's “right, title and interest in and to bank accounts maintained in Switzerland.”  
The assignment would direct the entities having authority over such bank accounts “to perform all necessary acts to effect the
transfer of the above bank accounts to Robert Swift.
 Thereafter in an attempt to collect on the judgment, the plaintiffs in the MDL case registered their judgment in the Central District of
California, in order to levy against the deposit . This was because Credit Suisse and Swiss Bank Corporations had offices in California, to
which they could just deliver or file notices of levy.
 However, the Banks filed a motion to dismiss the Rosales action on the ground that, among other things, the injunctive and declaratory
relief sought in the action would violate the act of state doctrine. The district court of California however, denied the Banks' motion to
dismiss. Thus the Banks then filed the present petition, requesting the US court of appeals to issue a writ of mandamus compelling the
district court to vacate its denial of the motion to dismiss, and directing the district court to dismiss the action.
ISSUE: Did the injunctive and declaratory relief sought in the Rosetta action violate the act of state doctrine? 
HELD: Yes.
 22

Under the Act of State Doctrine, which states that: “Every sovereign State is bound to respect the independence of every other sovereign State,
and the courts of one country will not sit in judgment on the acts of the government of another done within its own 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.”
The court further held that for the view under the act of State Doctrine to apply, and for an action to be barred, the following should be present:
1) there is an “official act of a foreign sovereign performed within its own territory”;  and
 It was clear that the Swiss Federal Supreme Court in issuing freeze orders upon the assets of Marcos was a foreign sovereign
performing an official act within its own territory. As a background, in 1986, when Ferdinand E. Marcos left power, the Swiss Federal
Council, the highest governing body in the Swiss Executive Branch, issued an Executive Order freezing all assets of the Marcos
Consequently, the Swiss Federal Supreme Court, the highest court in Switzerland issued those cantonal freeze orders, which are in
effect up to this day. Thus the court held that said Executive and subsequent cantonal orders were, therefore, clearly an “official act of
a foreign sovereign performed within its own territory.”

2) “the relief sought or the defense interposed [in the action would require] a court in the United States to declare invalid the [foreign
sovereign's] official act.”
 In the Rosales action, the MDL plaintiffs’ relief included:  (1) an injunction restraining the Banks from transferring or otherwise
conveying any funds or assets held by the Banks on behalf of the Marcos Estate except as ordered by the district court;  and (2) a
declaration that the Chinn assignment is valid and binding on the Banks.   The court held that both of these forms of relief would not
only require a United States court to question the validity of the freeze orders, but would also “render nugatory” Switzerland's attempts
to render legal assistance to The Republic of the Philippines by protecting the Estate assets. The relief sought therefore violated the
act of state doctrine, and the district court's refusal to dismiss the action was clearly erroneous as a matter of law.
 Furthermore, a declaration by a United States court that the Chinn assignment was valid and binding on the Banks would also violate
the act of state doctrine. Since the assignment would direct entities having authority over such bank accounts “to perform all
necessary acts to effect the transfer of the above bank accounts to Swift, would also disregard the Swiss freeze orders. And therefore,
that would violate the act of State Doctrine.
Thus, the court held that United States courts must be “bound to respect the independence of every other sovereign State,” including
Switzerland. Therefore, If the MDL plaintiffs wanted to contest the legality of the Swiss freeze orders, seek a declaration of the validity of the
Chinn assignment as against the Banks, or seek an injunction compelling the Banks to turn over the assets, they should do so via the Swiss
judicial system.

Thus, the Petition for Writ of Mandamus was granted by the Court.

Submit a case digest for PNB

PNB v. U.S. District Court of Hawaii, No.  04-71843, February 04, 2005
RULING: In order to obtain assets from the Philippine Bank, or to hold the Bank in contempt for the transfer of those assets to the Republic, the
district court necessarily (and expressly) held invalid the forfeiture judgment of the Philippine Supreme Court.   We conclude that this action of
the district court violated the act of state doctrine. The class plaintiffs in the district court argue that the act of state doctrine is directed at the
executive and legislative branches of foreign governments, and does not apply to judicial decisions.   Although the act of state doctrine is
normally inapplicable to court judgments arising from private litigation, there is no inflexible rule preventing a judgment sought by a foreign
government from qualifying as an act of state.   (“A judgment of a court may be an act of state.”).   There is no question that the judgment of
the Philippine Supreme Court gave effect to the public interest of the Philippine government.   The forfeiture action was not a mere dispute
between private parties;  it was an action initiated by the Philippine government pursuant to its “statutory mandate to recover property allegedly
stolen from the treasury.”  We have earlier characterized the collection efforts of the Republic to be governmental. The subject matter of the
forfeiture action thus qualifies for treatment as an act of state.

Read case: Callado v. International Rice Research Institute G.R. No. 106483, May 22, 1995.
Open reviewer by USJR
Summarize the jurisdictions of states in the different zones i.e. eez, territorial seas, etc.

south china sea arbitration, Philippines vs. China, Award, PCA Case No. 2013-19, ICGJ 495 (PCA 2016) 12th July 2016, Permanent Court of
Arbitration

d. Land
e. Maritime and Fluvial
f. The Contiguous Zone
g. The Continental Shelf
h. The Patrimonial Sea
i. The Open Seas
j. Aerial
k. Outer Space
XXII. The Right of Legation
a. Agents of Diplomatic Intercourse
b. The Head of State
c. The Foreign Secretary
d. Diplomatic Envoys
e. The Diplomatic Corps
f. Appointment of Envoys
g. Commencement of the Diplomatic Mission
h. Diplomatic Functions
 23

i. Diplomatic Immunities and Privileges

i. Personal Inviolability
 GR:
The Diplomatic Convention provides: “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of
arrest or detention. The receiving state shall treat him with due respect and shall take all appropriate steps to prevent any attack
on his person, freedom or dignity.”
 XPN:
The local authorities may in exceptional cases, lay hands on him if he has committed an act of violence and it is necessary to
place him in preventive restraint.

Q: What are the sanctions in place for persons who assault, strike or in any manner imposes violence on an ambassador or public
minister in violation of the law of nations?
A: In the Phils., R.A. No. 75 punishes any person who assaults, strikes, wounds, imprisons or in any other manner offers violence to
the person of an ambassador or public minister, in violation of the law of nations. The penalty is imprisonment for not more than 3
years and a fine not exceeding two hundred pesos in addition to the penalties described by the RPC.
TN:
To be covered under this law/penalty, the attack must be confined to the person of the envoy. Hence it is not punishable if the attack
is on the honor or reputation of the envoy.

ii. Immunity from Jurisdiction

 GR:
The Diplomatic Convention provides along with the generally accepted principle of international law that the diplomatic agent
shall enjoy immunity from the criminal jurisdiction of the receiving state. He shall also enjoy immunity from civil and
administrative jurisdiction.
 XPN:
a) A real action relating to private immovable property situated in the territory of the receiving state, unless he holds it on
behalf of the sending state for the purposes of the mission;
b) An action relating to succession in which the diplomatic agent is involved as the executor, administrator, heir or legatee
as a private person and not on behalf of the sending state;
c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state
outside his official functions.

Q: Can immunity from jurisdiction be waived? If yes, who may waive it?
A: Yes, immunity from jurisdiction may be waived expressly by the sending state, or under its authority, by the head of mission.
Waiver may also be made impliedly, as when the person entitled to the immunity commences proceedings in the local state and
thereby opens himself to any counterclaim directly connected with the principal claim.
 XPN:
There can be no implied waiver of immunity in respect of the execution of the judgement for civil or administrative proceedings, for
which a separate waiver shall be necessary.

Q: Can a court/judge in the Philippines issue a warrant for the search and seizure of good allegedly brought illegally by a diplomatic
envoy of another country?
A: NO. RA No. 75 provides that “any writ of process sued out or prosecuted by any person in any court of the Republic of the
Philippines, or by any judge or justice, whereby the person of any ambassador or public minister of any foreign state, authorized and
received as such by the President, or any domestic servant of any such ambassador or minister is arrested or imprisoned, or his
goods or chattels are distrained, seized, or attached –SHALL BE DEEMED VOID, and every person by whom the same is obtained
or prosecuted, whether as party or as attorney, and every officer concerned in executing it, shall, upon conviction, be punished by
imprisonment for not more than 3 years and a find of not exceeding P200K in the discretion of the court.
Example:
 A judge issued a warrant for the search and seizure of certain goods alleged to have been brought into the country illegally
by an official of the WHO. The WHO and the official moved to quash the warrant on the ground of the latter’s diplomatic
immunity. The judge nevertheless denied the motion, holding that there was “strong and positive indications of violations of
local laws.” The SC annulled the search warrant and held.
HELD: The executive branch of the Phil. Govt has expressly recognized that envoys such as petitioner Verstuyft is entitled
to diplomatic immunity, pursuant to the provisions of the Host Agreement. Thus, petitioner cannot be the subject of a
Philippine court summons without violating an obligation in international law of the Phil Govt. It is a recognized principle of
international law and under our system of separation of powers that diplomatic immunity is essentially a political question
and courts should refuse to look beyond a determination by the executive branch of the government, and where the plea of
diplomatic immunity is recognized and affirmed by the executive branch as in the case at bar, it is the duty of the courts to
accept the claim of immunity. It is accepted doctrine that “in such cases the judicial department of this government follows
the action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction. (World Health
Organization vs. Aquino, 48 SCRA 242)
 The determination of the executive arm of the government that a state or instrumentality is entitled to sovereign or
diplomatic immunity is a political question that is conclusive upon the courts. Where the plea of immunity is recognized and
affirmed by the executive branch, it is the duty of the courts to accept this claim so as not to embarrass the executive arm of
the government in conducting the country’s foreign relations. (The Holy See vs. Rosario, 238 SCRA 524)

iii. Inviolability of Diplomatic Premises

GR:
The premises of the mission shall be inviolable, including their furnishings and other property thereon and the means of transport of
the mission shall be immune from search, requisition, attachment or execution. Thus agents of the receiving state may not enter
them except with the consent of the head of mission.
 Also called the right of diplomatic asylum, where for humanitarian reasons, for example when a political fugitive seeking
sanctuary is in immediate danger of his life or safety.
 24

XPN:
In cases of clear and urgent necessity for the local authorities to take forcible measures to arrest any person subject to their
jurisdiction.

iv. Inviolability of Archives

GR:
The receiving state has no right to pry into the official papers and records of a foreign diplomatic mission. The Diplomatic Convention
provides that, the archives and documents of the mission shall be inviolable at any time and wherever they may be.
 Also applies even in case of armed conflict, thus even in such state, the archives of the mission must remain sealed and
may not be confiscated by the local state.

v. Inviolability of Communication
GR:
The receiving state shall permit and protect free communication on the part of the mission for all official purposes. Thus the mission
may employ all appropriate means including diplomatic couriers and messages in code or cipher.
 The diplomatic courier carrying the diplomatic bag is also protected and enjoys personal inviolability and shall not be liable
to any form of arrest or detention.

vi. Exemption from Testimonial Duties

GR:
Diplomatic Convention provides, that the diplomatic agent is not obliged to give evidence as a witness.
XPN:
When the diplomatic agent waives this privilege, as authorized by his government.

vii. Exemption from Taxation

GR:
The diplomatic envoy is exempt from taxes, customs and duties and other dues, subject to the exception listed in the Diplomatic
Convention, and as well from social security requirements under certain conditions.
 His personal baggage is also free from inspection unless there are serious grounds for presuming that it contains articles
not exempt from custom duties or not admissible into the receiving state.

viii. Other Privileges

b) Subject to the laws and regulations concerning zones of entry, the receiving state shall ensure to all members of the mission
freedom of movement and travel in its territory.
c) The receiving state shall exempt diplomatic agents from all personal services, from all public services of any kind whatever
and from military obligation such as requisitioning, military contributions and billeting. e.g. military duty during war, or provide
lodging for the military during war, etc.
d) The mission and its head has the right to use the flag and emblem of the sending state on the premises of the mission,
including the residence of the head and on his means of transport.

j. The Diplomatic Suite or Retinue

Q: Are the abovementioned immunities and privileges available and exclusive only to the head of the mission and his family?
A: NO. They are also available to other members of the diplomatic retinue/entourage, albeit/even not in the same degree.
 The diplomatic retinue includes the: diplomatic staff, the administrative and technical staff
XPN:
 Immunity from civil and administrative jurisdiction will not extend to unofficial acts by the retinue.
 Private servants of the official members of the mission, who are not nationals or permanent residents of the receiving state,
enjoy only exemption from dues and taxes on their income from the mission and such other immunities and privileges as
may be granted by the receiving state.

Q: When does diplomatic take effect and cease to exist?

A: It is enjoyed from the moment one enters the territory of the receiving state on proceeding to take up his post or, if already there, from
the moment his appointment is notified to the foreign ministry. It ceases from the moment his functions have ended, or when he leaves the
country or on expiry of a reasonable time in which to do so, but shall subsist until such time even in case of armed conflict
 The privileges and immunities are available to him and to his family not on in situ (on site) but as well in transitu (when travelling
through a third state on the way to or from the receiving state) so as to secure his transit or return.

k. Termination of Diplomatic Mission

Q: What are the modes of termination of Diplomatic Missions?
A: Apart from the usual methods such as death, resignation, abolition of office, as governed by municipal law, the more important modes
are recall and dismissal.
 Recall – may be demanded by the receiving state when the foreign diplomat becomes persona non grata to it for any reason. Even
without making a request for recall, the receiving state may resort to a more drastic method of dismissal, by which the offending
diplomat is asked to leave the country. E.g. The British govt in 1971 ordered the largest diplomatic expulsion for 105 Soviet diplomatic
officials, on the grounds of espionage.
TN:
 The outbreak of war between the sending and receiving states terminates their diplomatic relations, and is in fact severed even
before the actual commencement of hostilities.
 Extinction of either state also terminates diplomatic relations between them.
 Change of government will not disturb diplomatic relations if the change is peaceful, but it may be suspended where it is effected
by means of violence and the new government has not yet been recognized by the receiving state.

XXIII. Consuls
 25

Consuls vs. Diplomatic Agents

A: Consuls are state agents residing abroad for various purposes mainly in the interest of commerce and navigation.
 Unlike diplomatic agents, they are not charged with the duty of representing their states in political matters
 They are not accredited to the state where they are supposed to discharge their functions.
 They do not ordinarily enjoy all the traditional diplomatic immunities and privileges, although entitled to special treatment to a certain
extent under the law.
 They are public officers not only of the sending state but of the receiving state as well, and are governed by the laws of both
NOTE:
The severance of diplomatic relations shall not ipso facto involve the severance of consular relations, and vice versa.

Two Kinds of Consuls:

1. Consules missi
 Professional or career consuls who are nationals of the appointing state; are required to devote their full time to the discharge of
their consular duties
2. Consules electi
 May or may not be nationals of the appointing state; perform their consular functions only in addition to their regular callings

Grades or Ranks of Consuls:

Consul-general, consul, vice-consul and consular agent.

Appointments of Consuls:
Consuls derive their authority from two principal sources:
1) Latter patent or lettre de provision  commission issued by the sending state
2) Exequatur  authority given to them by the receiving state to exercise their duties (an official recognition by a government of a consul,
agent, or other representative of a foreign state, authorizing them to exercise the duties of office.)

Duties of Consuls:
 May be divided into duties pertaining to commerce and navigation and duties respecting the issuance of passports and visas, and duties
of protection of nationals.
 Principal duty  to promote the commercial interests of their country in the receiving state and to observe the commercial trends and
developments therein for report to their home government.
 Also perform duties relating to navigation such as visiting and inspecting vessels of their own states which may be in the consular
district, exercising a measure of supervision over such vessel, adjusting matters pertaining to their internal order and discipline, as well
as visiting and inspecting foreign vessels.
 Empowered to issue passports to nationals of the sending states, to visa passports and to issue documents relating to entry into and
travel within the territory of the sending state, and to visa invoices and certificates of origin of goods destined for the territory of that
state.
 Look after the interests of fellow nationals and extend official assistance when needed. Thus they may authenticate documents,
solemnize marriages, register births and deaths, temporarily administer the estates of deceased nationals within the consular district,
advise and adjust differences between their fellow nationals, visit them when arrested or detained by the receiving state, assist them in
proceedings before the local authorities and inquire into any incidents which have occurred within the consular district affecting the
interests of nationals.

Immunities and Privileges of Consuls

1. Right to official communication and correspondence with their home government by any means including cipher or code, without being
subjected to censorship or unreasonable restraint.
XPN  May be curtailed or restricted whenever exercised to the prejudice of the receiving state.
2. Inviolability of their archives
XPN  The consular premises may be served with legal processes such as arrests without violation of international law, except only in
that part where consular work is being performed.
3. Exempt from the local jurisdiction for crimes committed by them in the discharge of their official functions.
XPN  other offenses are fully subject to the local law; hence consuls may be arrested, prosecuted and punished in proper proceedings.
XPN to the XPN  Minor offenses are exempt; hence consuls are also given adequate opportunity to secure their release on bail at the
earliest possible time.
4. Exempt from civil suits connected to official duties
XPN  Civil suits in their personal or private capacity
5. Exempt from taxation, custom duties, service in the militia and social security rules, and are privileged to display their national flag and
insignia in the consulate.
NOTE:
 The immunities and privileges are also available to the members of the consular post and their respective families and private staffs.
 Waiver may in general be made by the sending state.

Termination of Consular Mission:

 The consul’s office may end with the usual modes e.g. removal, resignation, death, expiration of the term, but the exequatur may also be
withdrawn by the receiving state
 In the event of war, the consulate is closed and the archives are sealed and left in the custody of a caretaker, usually a consul from a
neutral state.
 Severance of consular relations does not necessarily terminate diplomatic relations. E.g. Even if Russia and the US discontinued consular
relations for more than 15 years, they still maintained diplomatic relations.

XXIV. Treaties
 26

Q: What is a Treaty?
A: A Treaty is a formal agreement, not necessarily in writing which is entered into by states or entities possessing the treaty-making capacity, for
the purpose of regulating their mutual relations under the law of nations. It may include/embrace conventions, declarations, covenants, acts,
concordats, etc. and all are intended to create legal obligations which are binding on the parties. TN: Under Philippine Law, it requires the
concurrence of the Senate for its ratification.

Q: What are the matters usually dealt with by Treaties?

a. Lease of Naval Bases
b. The sale or cession of territory
c. The regulation on the conduct of hostilities
d. The termination of war
e. The formation of alliances
f. The regulation of commercial relations
g. The settling of claims
h. The establishment of international organizations

Q: Is an executive agreement a Treaty?

A: NO, because unlike Treaties, an executive agreement does not require the concurrence of the Senate as required under the Constitution.
Regardless, they are alike under international law since they both constitute equally binding obligations upon the nation.

a. Functions
1) Enable parties to settle finally actual and potential conflicts.
2) Allow parties to modify the rules of international customary law by means of optional principles or standards
3) May transform an unorganized international society into one which may be organized on any chosen level of social integration
4) Provide the humus(organic component) for the growth of international customary law.

b. Essential Requisites of a Valid Treaty

1. Must be entered into by parties with Treaty-making capacity
GR:
Every state possesses capacity to conclude treaties as an attribute to sovereignty.
XPN:
1. When it limits itself; or
2. When it is limited by some other international arrangements respecting some matters

2. Must be done thru their Authorized Representatives

GR:
It is the municipal law of the State concerned, which determines what organ may conclude or be empowered to enter into the
treaty. It is the head of the state who possesses the treaty-making power to be concurred in by the legislative branch. Example
Art. VII Sec 21 of the Constitution of the Philippines authorizes the President to make treaties, subject to the concurrence of two-
thirds of all the members of the Senate.
XPN:
1. When it is in estoppel
Hence, even if a treaty which appears to be constitutionally defective is entered into by a state, if it does not correct the defect,
then it can be responsible for an injury resulting to another state for the latter’s reasonable reliance that such organ or authority
was competent to conclude the treaty
2. When it has performed acts validating or curing the defects in competence
3. When it has received benefits or has exercised its rights under the subject treaty without expressly reserving its non-liability or
without interposing valid reasons for receiving or exercising it. Hence, even if a treaty which appears to be constitutionally
defective is entered into by a state, but if said treaty benefits the state, then the defect is deemed cured?

3. Must be without the Attendance of duress, Fraud, mistake or other vice of consent; hence must be with Freedom of Consent
GR:
The State itself must possess the capacity to consent, which consent must be given in a manner that is free from duress, fear,
force, coercion, intimidation or corruption.
XPN:
a) Ratification – waiving the right to withdraw from the treaty and declaring its consent thereon as valid (even though done with
vice of consent)
b) Estoppel – exercising its rights and respecting the obligations in the treaty, even with the knowledge of facts that vitiate its
consent; and exercises its rights without protest.
c) Prescription – filing the protest after the allowable period within which the same may be entertained; thus the state is deemed
to have ratified its consent.

Q: What is the remedy of a state/party to a treaty whose consent thereto has been given in error or induced through fraud on the
part of the other party?
A: The treaty will be voidable, but the erring State must as soon as possible, or within the time given in the treaty, withdraw or
correct its consent.

Q: How is consent given?

i. Through signature
ii. Exchange of instruments
iii. Ratification
iv. Acceptance,
v. Approval or accession
vi. By other means so agreed
 27

4. Must be pertaining to a Lawful subject-matter

GR:
Immorality, illegality or impossibility of purpose or obligations, makes the treaty null and void. E.g. a treaty by which a State agrees
with another to appropriate a portion of the high seas.
XPN:
a) If the Immorality, illegality or impossibility does not run counter to a universally recognized peremptory norm of
international law but only against a remote and minor norm.
b) If it does not contravene or depart from an absolute or imperative rule or prohibition of international law

Q: What is a Peremptory Norm?

A: A norm generally accepted by the International Community of States as a whole, as a norm from which no derogation
(exemption or relaxation of law) is permitted and which can be modified only by a subsequent norm of general international law
having the same character e.g. jus cogens

5. Must be in Compliance with the constitutional processes

The treaty-making process is governed by international law except with respect to the method of ratification as required by municipal
law of most states at present. Non-compliance with this requisite will prevent enforcement of the treaty even if already signed by the
authorized negotiators.

a. Treaty-making Process
Q: What is the process in treaty-making
A: It involves: negotiation  signature  ratification  exchange of the instruments of ratification.

a) Negotiation – may be undertaken directly by the head of state or his authorized representatives, which are provided with full powers.
The negotiations may be brief or protracted, and may even collapse in case the parties are unable to come to an agreement.
b) Signature – this step is intended primarily as a means of authenticating the instrument and for the purpose of symbolizing the good
faith of the parties; this step does not significantly indicate the final consent, in cases where ratification of the treaty is required.
c) Ratification – the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives. Its
purpose is to enable the contracting states to examine the treaty more closely and give them an opportunity to refuse to be bound by
it should they find it inimical to their interests.
TN:
 Even if there is no stipulation that ratification is required to conclude/validate a treaty, an unratified treaty cannot be a
source of obligations between parties.
 A treaty which is ratified in violation of the constitution of the ratifying state (did not receive required approval from its
legislature), is ipso facto invalid.
 There is no legal obligation to ratify a treaty, but refusal to ratify must be based on substantial grounds and not on
superficial or whimsical reasons: otherwise the state would be justified in taking offense.
 Under the Philippine Constitution, the power to ratify treaties in vested in the President, and not in the legislature. The role
of the Senate is confined to giving or withholding consent (a veto power) to the ratification. But the president cannot ratify a
treaty without the concurrence of two-thirds of all members of the Senate.
d) Exchange of the instruments of Ratification  signifies the effectivity of the treaty, unless a different date is agreed upon by the
parties. Under Article 102 of the U.N. Charter, a treaty must be registered with the Secretariat, by which it shall be published.
Otherwise, it cannot be invoked before any organ of the United Nations such as the ICJ.
TN:
 Nevertheless, a treaty does not cease to be binding between the parties and may be the basis of a litigation before some
other arbitral or judicial body not connected with the United Nations.

b. Binding Effect of Treaties

GR:
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 agreement, have been allowed by its terms to sign it later by a process called accession.
Non parties are usually not bound under the maxim pacta tertiis nec nocent nec prosunt.
XPN:
a) A treaty is merely a formal expression of customary international law, thus is enforceable on all civilized states because of their
membership in the family of nations. Hence even if a third state is not a contracting party to a treaty, it may still validly observe or
benefit from the provisions of the treaty.
 Example: Hague Conventions of 1899 and 1907
b) Art. 2 of the U.N. Charter that the Organization “shall ensure that non-member States act in accordance with the principles of the
Charter so far as may be necessary for the maintenance of international peace and security.
c) The treaty expressly extends its benefits to non-signatory states
 Example: Hay-Pauncefote Treaty of 1901, which was only between the US and Great Britain, wherein it opened the
Panama Canal “to all vessels of commerce and of war of all nations observing these Rules, on terms of entire equality.
TN:
Parties to unrelated treaties may also be linked by the most-favored-nation clause, under which a contracting state entitled to most-
favored-nation treatment from the other may claim the benefits extended by the latter to another state in a separate agreement.
Illustration: X agrees to extend most-favored-nation treatment to Y and thereafter grants tariff preferences to Z under another treaty, Y
will be entitled, by virtue of its treaty with X, to enjoy the same advantages conceded to Z.

c. Observance of Treaties
GR:
Doctrine of Pacta sunt servanda, which states that international agreements must be performed in good faith. A treaty engagement is not a
mere moral obligation but creates a legally binding obligation on the parties. TN: Treaties by their inherent nature, limit or restrict the
absoluteness of sovereignty. This is because nations, voluntarily surrender some aspects of their state power in exchange for greater
benefits granted by or derived from a convention or pact.
 28

XPN:
Doctrine of Revus sic stantibus, which states that non-performance of a treaty obligation is justified if the conditions with relation to which
the parties contracted have changed so materially and so unexpectedly as to create a situation in which the exaction of performance would
be unreasonable.
 Effect  The treaty may be terminated or withdrawn if:
a. The existence of that fact or situation constituted an essential basis of the consent of the parties to the treaty; and
b. The effect of the change is to transform in an essential respect the character of the obligations undertaken in the treaty.
 Extent of the doctrine’s Application:
i. It applies only to treaties of indefinite duration
ii. The vital change must have been unforeseen or unforeseeable and should not have been caused by the party invoking the
doctrine;
iii. The doctrine must be invoked within a reasonable time; and
iv. It cannot operate retroactively upon the provisions of the treaty already executed prior to the change of circumstances.
 Examples:
 The US invoked the doctrine of rebus sic stantibus when it announced that it would no longer be bound by the International Load
Line Convention, which was entered to limit international competition in the loading of cargo vessels. According to the US, the
agreement contemplated peacetime commerce and voyages and that because 10 of the 36 signatories were at war and the other
26 were neutral, the situation intended to be regulated had become “a wholly different one”.

Q: If a treaty conflicts with the constitution of one of the parties, which one prevails?
A: The Constitution prevails in the municipal law of that party, yet nevertheless the treaty is internationally binding although unenforceable under
municipal law. This is because the peculiarities of constitutional structure does not have international significance to other states.
 Remedy  the state called upon to perform its obligation may ask for a revision of the treaty, amend its constitution to make it
conform to the treaty requirement, or pay damages to the other parties for its inability to comply with its commitments.

d. Treaty Interpretation
GR:
The interpretation of treaties must be to give effect to the intention of the parties.
TN:
 The intention of the parties to a treaty is usually in the terms of the treaty itself, which is given in its official text. Some treaties also
contain a “protocol” or “agreed minutes” in which certain terms used in the body are defined and clarified.
 Usual canons of statutory construction are employed in the interpretation of treaties.
e. Termination of Treaties
Q: What are the common causes for the termination of Treaties?
A: Most common causes:
1) Termination of a treaty or withdrawal of a party in accordance with the terms of the treaty
2) In Bipartite (Mutual), the extinction of one of the parties terminates the treaty. The treaty terminates if the rights and obligations under
the treaty do not devolve upon the State that succeeds the extinct State.
3) Mutual agreement of ALL the parties.
4) Denunciation of the treaty by one of the parties.
Right of Denunciation  the right to give notice of termination or withdrawal which must be exercised if provided for in the treaty or
impliedly.
5) Supervening impossibility of performance
6) Conclusion of a subsequent inconsistent treaty between the same parties
7) Violation of the treaty
8) Doctrine of RSS
9) War between the parties – war does not abrogate/revoke ipso facto all treaties between belligerents
10) Severance of diplomatic or consular relations
11) Emergence of a new preemptory norm contrary to the existing treaty
12) Voidance of the treaty because of defects in its conclusion or incompatibility with international law or the UN Charter

XXV. Nationality and Statelessness

Q: What is the effect of an individual’s statelessness as pertaining the protection or vindication of his rights under international law?
A: An individual who is stateless may not avail of the remedies for the protection or vindication of his rights under international law, for there would
be no entity with international personality to intercede for his rights under the law of nations. This is because nationality acquires not only
municipal but international significance.
 Nationality  is the tie that binds an individual to his state, from which he can claim protection and whose laws he is obliged to obey.
Nationality is membership in a political community with all it concomitant rights and obligations.
 It used interchangeably with citizenship.

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XXVI. Treatment of Aliens

XXVII. Settlement of International Disputes
XXVIII. War
XXIX. Neutrality