INTERNATIONAL LAW

LEARNING MODULE
 INTERNATIONAL LAW

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 DISCLAIMER

This learning material is used in compliance with the flexible teaching-learning

approach espoused by CHED in response to the pandemic that has globally affected
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CatSU College of Humanities and Social Sciences

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FACULTY PROFILE

Name: SANTOS G. SORRA JR.

Position: Instructor I
Address: West Garden Subd, Bigaa, Virac, Catanduanes
E-mail: junsansorra.work@gmail.com
FB account: Junsan Bonbon / Santos Jr Sorra
Contact Number: 09391256087
 COURSE DESCRIPTION

This course is a survey of the basic concepts of international law with particular emphasis on
its interactions with world politics and its role in resolving international conflicts.

MODULE OVERVIEW

This module provides fundamental knowledge, understanding, ideas and learning about
international law. It covers sources and nature of international law and relevant instruments and
programmes.

COURSE OUTCOMES

• Identify the fundamental principle and policies of International Law.

• Familiarize students with the nature, source, function effects, and application of International
laws.
• Allow students to develop insights into the global legal system and its influence on both
national and international policies.
• Understand and internalize the importance of global justice and resolve the dispute amicably,
that ultimately help individuals and to protect the interest of the individuals.
• Determine the preservation global justice and peace.
• Develop the responsibility and respect for human rights.
• Apply those concepts, and substantive institutional knowledge, to understanding
contemporary developments related to international law.
 MODULE MAP

MIDTERM PERIOD
A. THE NATURE OF INTERNATIONAL LAW
1. What is International Law?
2. Scope, Concepts, and Theories of International Law
2.1 OBLIGATIONAS ERGA OMNES
2.2 JUS COGENS
2.3 CONCEPT OF EX AEQUO ET BONO
3. Public and Private International Law
3.1 International and National (municipal) Law, Distinguished
3.2 Relationship
4. Brief Historical Development of International Law
B. THE SOURCES OF INTERNATIONAL LAW
1. Treaties and Conventions
2. Custom or Customary Law
3. General Principles of Law
4. Judicial Decision and Teachings of Highly Qualified Publicist
5. Other Supplementary Evidence
5.1 EX AEQUOT BONO
5.2 Equity
5.3 Unilateral Declaration
5.4 UN Resolutions
5.5 “Soft Law”
C. SUBJECTS OF INTERNATIONAL LAW
1. Subjects and Objects Distinguished
2. States
2.1 People or Population
2.2 Territory
2.3 Government
2.4 Sovereignty
2.5 Self – Determination
3. Recognition of States
4. Recognition of Government
4.1 The Tinoco Arbitration
4.2 Upright v. Mercury Business Machines Co.
5. Consequences of Recognition or Non-recognition
6. Succession of States
7. Fundamental Rights of States
8. International Organization
8.1 Immunities
8.2 The United Nations: Structure and Powers
8.3 General Assembly
8.4 Security Council
8.5 ECOSOC
8.6 Trusteeship Council
 8.7 Secretariat
8.8 International Court of Justice
8.9 Other Agencies
8.10 Regional Organizations: ASEAN
9. Insurgents
10. National Liberations Movements
11. Individuals
D. DIPLOMATIC AND CONSULAR LAW
1. DIPLOMATIC INTERCOURSE
1.1 Agents of Diplomatic Intercourse
1.2 Functions and Duties of Agents
1.3 Immunities and Privileges
2. CONSULAR RELATIONS
2.1 Establishment and Severance
2.2 Consuls
2.3 Ranks
2.4 Consular Functions
2.5 Right to Consular Assistance
2.6 Necessary Documents
2.7 Immunities and Privileges
E. GENERAL PRINCIPLES OF TREATY
1. Concept
1.1 Under International Law
1.2 Under Philippine Law
2. Treaty – Making Process
2.1 Invalid Treaties
2.2 Grounds for Termination
F. NATIONALITY AND STATELESSNESS
1. Nationality
2. Acquisition of Nationality
2.1 Birth
2.2 Naturalization
3. Multiple Nationality
3.1 Illustrations
3.2 Doctrine of Indelible Allegiance
3.3 Conflict of Nationality Law
3.4 Principle of Effective Nationality
4. Loss of Nationality
5. Statelessness
6. Citizenship of Foundlings
G. STATE RESPONSIBILITY
1. Doctrine of State Responsibility
1.1 Definition
1.2 Elements
1.3 Attribution
1.4 Effective Control
 2. Consequences of State Responsibility
2.1 Duty of Cease the Act
2.2 Duty of Make Reparation

FINAL PERIOD

H. JURISDICTION OF STATES
1. Definition
2. Kind of Jurisdiction
3. Principles of State Jurisdiction
4. Reserved Domain of Domestic Jurisdiction
5. Doctrine of State Immunity
I. TREATMENT OF ALIENS
1. Standard of Treatment
2. State of Responsibility
3. Calvo Clause
4. Extradition
4.1 Fundamental Principle
4.2 Procedure
4.3 Extradition and Deportation Distinguished
J. INTERNATIONAL HUMAN RIGHTS LAW
1. Definition
2. Classification
3. Universal Declaration of Human Rights
4. International Covenant on Civil and Political Rights
5. International Covenant on Economic, Social and Cultural Rights
K. INTERNATIONAL HUMANITARIAN LAW
1. Definition
2. Two Branches
3. Philippine Practice
4. Categories of Armed Conflict
4.1 International Armed Conflict
4.2 International or Non – International Armed Conflicts
4.3 War of National Liberation
5. Core International Obligations of States in IHL
6. Principles of IHL
6.1 Combatants
6.2 HORS DE COMBAT
6.3 Civilians
6.4 Prisoners of War
7. Law of Neutrality
L. LAW OF THE SEA
1. Definition
 2. Baselines
3. Archipelagic States
3.1 Straight Archipelagic Baselines
3.2 Archipelagic Waters
3.3 Archipelagic Sea Lanes Passage
3.4 Other Rights Relating to Archipelagic Waters
4. International Waters
5. Territorial Sea
6. Contiguous Zone
6.1 Definition
6.2 Jurisdiction Over Contiguous Zone
7. Exclusive Economic Zone
7.1 Definition
8. Continental Shelf
8.1 Extended Continental Shelf
8.2 Limits of the Continental Shelf
8.3 Rights of the Coastal State
9. The Area
9.1 Definition
9.2 Legal Status of the Area and its Resources
9.3 International Seabed Authority
9.4 Activities in the Area
10. International Tribunal for the Law of the Sea (ITLOS)
10.1 Definition
10.2 Jurisdiction of the ITLOS
10.3 Peaceful Settlement of Disputes
10.4 Compulsory Settlement of Disputes
10.5 Applicable Laws
M. MADRID PROTOCOL AND PARIS CONVENTION
1. Madrid Protocol
2. Paris Convention
N. INTERNATIONAL ENVIRONMENTAL LAW
1. Definition
2. Basic Principles
2.1 PRINCIPLE OF COMMON BUT DIFFERENTIATED RESPONSIBILITY
2.2 PRECAUTIONARY PRINCIPLE
2.3 SUSTAINABLE DEVELOPMENT
2.4 SIC UTERE TUO UT ALIENUM NON LAEDAS (PRINCIPLE 21 OF THE
STOCKHOLM DECLARATION)
2.5 INTERNATIONAL ECONOMIC LAW
 DISCUSSION
A. THE NATURE OF INTERNATIONAL LAW
1. What is International Law?
• 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.
States are the sole actors in this definition and, in the past, public international law
dealt almost exclusively with regulating the relations between states in diplomatic
matters and in the conduct of war. Today, sovereign states remain as the principal
subjects of international law; but they are now joined by international organizations
and even by individuals. Thus, the Restatement (Third) of Foreign Relations Law of
the United States, which U.S courts generally consider as the most authoritative work
on the subject, defines international law as 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.”

2. Scope, Concepts, and Theories of International Law

• The expansion of the scope international law is nothing short of revolutionary: New
subject matters are being added, new subjects of international law are being
recognized, non – Western states are flooding into the community of nations, political
and social principles are changing, international organizations are assuming new
roles. This is being affected by various factors: rapid changes in technology, the
multiplication of number of states with differing backgrounds and achieving loose
forms of cooperation, fear of war, rising demands for social reform.
• Command Theory. In the view of John Austin, a renowned legal philosopher, law
consists of commands originating from a sovereign and backed up by threats of
sanction if disobeyed. In this view, international law is not law because it does not
come from a command of a sovereign. This theory, however, has generally been
discredited. The reality is that nations see international law not as commands but as
principles for free and orderly interaction.
• Consensual Theory. Under this theory, international law derives its binding force
from the consent of states. Treaties are an expression of consent. Likewise, custom,
as voluntary adherence to common practices, is seen as expression of consent. In
reality, however, there are many binding rules which do not derive from consent.
• Natural Law Theory. The natural law theory posits that law is derived by reason
from the nature of man International law is said to be an application of natural reason
to the nature of the state-person. Although the theory finds little support now, much of
customary law and what are regarded as generally accepted principles of law are in
fact an expression of what traditionally was called natural law.
• Some dissenters, however, see no objective basis for international law. They see
international law as a combination of politics, morality and self-interest hidden under
the smokescreen of legal language.

2.1 OBLIGATIONAS ERGA OMNES

 Obligations ergaomnes are “obligations of a State towards the international
community as a whole,” which are the “concern of all States” and for whose
protection all States have a “legal interest.” [Barcelona Traction Case (ICJ,
1970)]
 2.2 JUS COGENS
 A jus cogens norm is a “norm accepted and recognized by the international
community of States as a whole as a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of general
international law having the same character.” [Vienna Convention on the Law
of Treaties (“VCLT”), art. 53] Also known as peremptory norms of general
international law.

2.3 CONCEPT OF EX AEQUO ET BONO

 Literally, “what is equitable and good.” A standard that a court may apply to
decide a case when the parties to the dispute so agree. [ICJ Stat., art. 38(2)]
This means that the court may decide a case on the basis of justice and
equity untramelled by technical legal rules where the parties agree [Pellet].
This should not be confused with the ability of the ICJ to apply equitable
principles in a case.

3. Public and Private International Law

• A distinction should be made between public international law, sometimes referred
to only as international law and private international law, more commonly called
conflict of laws. Public international law governs the relationships between and
among states and also their relations with international organizations and
individuals persons. Public international law is really domestic law which deals with
cases where foreign law intrudes in the domestic sphere where there are questions
of the applicability of foreign law or the role of foreign courts.

3.1 International and National (municipal) Law, Distinguished

 The conduct of States and international organizations, their relations with
each other and, in certain circumstances, their relations with persons, natural
or juridical. [American Third Restatement]
 Through consent, adopted by States as a common rule of action.
 Regulates relations of States and other international persons.
 Derived principally from treaties, international custom and general principles
of law. [ICJ Stat., art. 38(1)]
 By means of State-to-State transactions.
 Collective responsibility because it attaches directly to the State and not to its
nationals.

3.2 Relationship
 Monist view
• International and municipal legal systems are fundamentally part of one
legal order. This view considers international law to be superior, with
municipal law being a mere subset of international law.
• Thus, international norms are applicable within municipal systems even
without some positive act of the state.
• Monist-naturalist view: Public international law is superior to municipal law,
and both systems are but a part of a higher system of natural law.
 Dualist view
• International law and municipal law are separate systems. Only those
problems affecting international relations are within the scope of international
law.
 • Thus, before an international norm can have an effect within a municipal
legal system, that norm must be transformed, or adopted into the municipal
system through a positive act by a state organ.
• Customary international law and general principles of international law,
however, need not be transformed or adopted.

 Coordinationist view
• International law and municipal law operate in different spheres. Hence, the
laws themselves do not conflict.
• However, there may be a conflict in obligations imposed by either systems.
In such a case, the result is not the invalidation of national law but
responsibility under international law on the part of that State.

4. Brief Historical Development of International Law

• From Ancient Law to the League of Nations
 What may be called ancient international law governed exchange of
diplomatic emissaries, peace treaties, etc., in the world of ancient Romans
and even earlier. There is evidence of treaties concluded between Jews and
Romans, Syrians and Spartans. The progressive rules of jus gentium, seen
as a law “common to all men,” became the law of the vast Roman Empire.
• From the end of World War II to the end of the Cold War
 The League of Nations failed prevent World War II. Thus, the formulation of a
new avenue for peace became the preoccupation of the victors. Hence was
founded the United Nations in 1945. This marked the shift of power away
from Europe and the beginning of a truly universal institution. The
universalization was advanced by decolonization which resulted in the
expansion of the membership of the United Nations. New states, carrying a
legacy of bitterness against colonial powers, became members of the UN.
• The End of the Cold War
 The dissolution of the Soviet Union resulted in the end of the Cold War with
the re-emergence of international relations based on multiple sources of
power and not mainly on ideology. Many of the Baltic state were restored to
statehood. Yugoslavia collapsed and fragmented. The newly born Russian
Federation did not inherit the Soviet Union’s position as a superpower.

B. THE SOURCES OF INTERNATIONAL LAW

1. Treaties and Conventions
• A treaty is an international agreement concluded between states in written form
and governed by international law, whether embodied in a single instrument or in
two or more related instruments and whatever its particular designation.” [VCLT,
art. 2(1)]
• Treaty obligation is based on consent. No state may be bound by a treaty
obligation unless it has so consented. [VCLT, art. 34] Under the principle of
pactasuntservanda, a state party to a treaty is bound to comply with the obligations
it assumed under such treaty in good faith. [VCLT, art. 26]

2. Custom or Customary Law

• Custom or customary international law means “a general and consistent practice of
states followed by them from a sense of legal obligation.” (Restatement) This
 statement contains the two basic elements of custom; the material factor, that is,
how states behave, and the psychological or subjective factor, that is, why they
behave the way they do.

3. General Principles of Law

• These refer to those general principles in municipal law (particularly those of
private law) that may be appropriated to apply to the relations of states
[OPPENHEIM]. The following principles are considered general principles of
international law:
• Roman law principles;
o Principles such as estoppel, res judicata, res inter aliosacta, and
prescription;
o e.g. With respect to estoppel, when Thailand did not object to, and has in
fact benefited from, the Treaty of 1904 for 50 years, it is deemed to have
accepted said treaty. It is thereby precluded from questioning Annex I
thereof, which showed that the Temple of PreahVihear was within
Cambodian territory [Temple of PreahVihear Case (ICJ, 1962)].
• Other substantive principles, such as the duty to make reparations [Chorzow
Factory Case (PCIJ, 1927)], principle of reciprocity, pactasuntservanda, separate
corporate personality [see Barcelona Traction Case (ICJ, 1970)];
• Procedural rules, such as rules governing the use of circumstantial and hearsay
evidence are likewise so considered.
o e.g. Press reports can be used to corroborate the existence of a fact. When
they demonstrate matters of public knowledge which have received
extensive press coverage, they can be used to prove a fact to the
satisfaction of the court [Nicaragua Case (ICJ, 1986)].
o Circumstantial evidence is admitted as indirect evidence in all systems of
law and its use is recognized by international decisions. Such circumstantial
evidence, however, must consist of a series of facts or events that lead to a
single conclusion [Corfu Channel Case (ICJ, 1949)].
• Jurisdictional principles, such as the power of a tribunal to determine the extent of
its own jurisdiction (competence de la competence).

4..Judicial Decision and Teachings of Highly Qualified Publicist

• Evidence of the state of the law: Despite the inapplicability of stare decisis in the
ICJ, decisions of international tribunals exercise considerable influence as impartial
and well considered statements of the law by qualified jurists made in light of actual
problems. Decisions of international tribunals constitute evidence of the state of the
law. Writings of highly qualified publicists likewise constitute evidence the state of
the law. Some publicists may be expressing not what the law is (lexlata) but what
they think the law should be or will be (lexferenda).

5.Other Supplementary Evidence

5.1 EX AEQUOT BONO
• Literally, “what is equitable and good.” A standard that a court may apply to decide
a case when the parties to the dispute so agree. [ICJ Stat., art. 38(2)] This means
that the court may decide a case on the basis of justice and equity untramelled by
 technical legal rules where the parties agree [Pellet]. This should not be confused
with the ability of the ICJ to apply equitable principles in a case.
5.2 Equity
• The Permanent Court of Justice had occasion to use equity as a source of law in
the case of Diversion of Water from the Meuse (Netherlands v. Belgium).
Netherlands had complained that certain canals constructed by Belgium were in
violation of an agreement in that the construction would alter the water level and
rate of flow of the Meuse River. The Court rejected the Netherlands claim and a
Belgian counterclaim based on the construction of a lock by the Netherlands at an
earlier time.
5.3 Unilateral Declaration
• Unilateral declarations concerning legal or factual situations, may have the effect of
creating legal obligations. Nothing in the nature of a quid pro quo, nor any
subsequent acceptance, nor even any reaction from other states is required for
such unilateral declaration to take effect. Verily, unilateral declarations bind the
state that makes them. [Nuclear Test Cases (ICJ, 1974)].
5.4 UN Resolutions
• Declaration of legal principles and Resolutions by the United Nations are generally
considered merely recommendatory. But if they are supported by all the states,
they are an expression of opinion juris communis. But a growing number of weaker
nations, who have a very substantial vote, feel that U.N Resolutions should have
the force of law. Resolutions can also be a reflection of what has become
customary law.
5.5 “Soft Law”
• Soft law plays an important role in international relations because often states
prefer non-treaty obligations as a simpler and more flexible foundation for their
future relations. The difference lies mainly in the wish of the parties to model their
relationship in a way that excludes the application of treaty or customary law on the
consequences of a breach of obligations.

C. SUBJECTS OF INTERNATIONAL LAW

1. Subjects and Objects Distinguished
• Subjects of international law refer to entities:
(1) Capable of possessing international rights and duties; and
(2) Having the capacity to maintain these rights by bringing international claims.
[Reparations for Injuries Advisory Opinion (ICJ, 1949)]

Objects of international law are persons or things in respect of which rights are held
and obligations are assumed by the subject. They are not directly governed by the
rules of international law. Their rights (e.g., human rights of individuals) may be
asserted and their responsibilities imposed indirectly, through the instrumentality of
an intermediate agency (e.g., state). This traditional distinction has been criticized
as unhelpful as non-state actors (e.g., individuals and civil society organizations)
already have standing to bring suits in the fields of international criminal law and
international human rights law. Thus, some call the entities actors. [HIGGINS]
2. States
2.1 People or Population
• As an element of state, “people” simply means a community of persons sufficient in
number and capable of maintaining the permanent existence of the community and
held together by a common bond of law. It is no legal consequence if they possess
diverse racial, cultural, or economic interests. Nor is a minimum population
required.

2.2 Territory
• A definite territory over which an entity exercises permanent sovereignty is another
element of a state. But as the Restatement (Third) on the Foreign Relations Law of
the United States explains: “An entity may satisfy the territorial requirement for
statehood even if its boundaries have not been finally settled, if one or more of its
boundaries are disputed, or if some of its territory is claimed by another state. An
entity does not necessarily cease to be a state even if all its territory has been
occupied by a foreign power or if it has otherwise lost control of its territory
temporarily.”

2.3 Government
• Government, as an element of a state, is defined as “that institution or aggregate of
institutions by which an independent society makes and carries out those rules of
action which necessary to enable men to live in a social state, or which are
imposed upon the people forming that society by those who possess the power or
authority of prescribing them.” International law does not specify what form a
government should have.

2.4 Sovereignty
• Sovereignty means independence from outside control. The Montevideo
Convention expresses this in positive terms as including “the capacity to enter into
relations with other States.” This latter element of sovereignty, however, is
dependent on recognition.

2.5 Self – Determination

• Sovereignty as an element of a state is related to but not identical with the broader
concept of the right of self-determination. In the post – Word War II era, there have
arisen numerous new states. The impetus behind the birth of new states is the
principle of self – determination of peoples.

3.Recognition of States

• When State A recognizes State B, it means that both recognize the capacity of
each other to exercise all the rights belonging to statehood. Recognition thus
means the act of acknowledging the capacity of an entity to exercise rights
belonging to statehood.
4.Recognition of Government

• Closely related to recognition of states is recognition of government. It means the

act of acknowledging the capacity of an entity to exercise powers of government of
a state.
4.1 THE TINOCO ARBITRATION

• In January 1917, the Government of Costa Rica, under President Alfredo

Gonzalez, was overthrown by Federico Tenneco. Tenneco’s government
concluded certain contracts with British corporations. Tenneco retired and left the
country. After Tenneco’s retirement the old constitution was restored and a Law of
Nullities was passed annulling the contracts concluded during the Tenneco regime.
Great Britain made claims on the basis of the injuries done to its nationals caused
by the annulments.
4.2 UPRIGHT v. MERCURY BUSINESS MACHINES CO.

• BREITEL, JUSTICE PRESIDING. Plaintiff, an individual, sues as the assignee of a

trade acceptance drawn on and accepted by defendant in payment for business
typewriters sold and delivered to it by a foreign corporations. The trade acceptance
is in the amount of $27, 307 .45 and was assigned to plaintiff after dishonor by
defendant.
• A foreign government, although not recognized by the political arm of the United
States Government, may nevertheless have de facto existence which is juridically
cognizable. The acts of such a de facto government may affect private rights and
obligations arising either as a result of activity in, or with persons or corporations
within, the territory controlled by such de facto government. This is traditional law.
(Russian Reinsurance Co. v. Stoddard, 240 N.Y. 149, 147 N.E 703; M. Salimoff &
Co. v. Standard Oil Co., 262 N.Y. 220, 186 N.E. 679, 89 A.L.R. 345)

2. Consequences of Recognition or Non-recognition

• In a world of growing interdependence, recognition or non-recognition of
government can have very serious consequences. A government, once
recognized, gains increased prestige and stability. The doors of funding
agencies are opened, loans are facilitated, access to foreign courts and
immunity from suit are gained. Military and financial assistance also come
within reach. The absence of formal recognition, on the other hand, bars an
entity from all these benefits or, at least, access to them may be suspended.

3. Succession of States

Succession or Continuity
• States do not last forever. The issue of state succession can arise in different
circumstances. Existing sovereignties may arise as the result of decolonization,
dismemberment of an existing state, secession, annexation and merger. In
each of these cases an existing sovereignty disappears either in whole or in
part and new one arises thus giving rise to questions of succession to rights
and obligations.
4. Fundamental Rights of States

7.1 Independence
• Independence is the capacity of a state to provide for its own well-being and
development free from the domination of other states, providing it does not
impair or violate their legitimate rights. As a right, independence means the
right to exercise within its portion of the globe, to the exclusion of others, the
functions of a state. But restrictions upon a state’s liberty arising either from
customary law or from treaties do not deprive a state of independence.

7.2 Equality
• Equality obviously does not mean equality in political or economic power.
Rather, it means equality of legal rights irrespective of the size or power of the
state. Within the General Assembly, the doctrine means one state, one vote.
The UN Charter, Article 2, provides that “the Organization is based on the
principle of the sovereign equality of all its Members.” Hence, each has one
vote in the General Assembly and every state may aspire for the officers in the
various organs of the UN.

7.3 Peaceful co-existence

• The right has been developing over the past twenty years. The theory was
elaborated in 1954 as the Five Principles of Co-existence by India and China
and includes mutual respect for each other’s territorial integrity and sovereignty,
mutual non – aggression, non – interference in each other’s affairs and the
principle of equality. This has also been expressed in other documents such as
the 1970 Declaration on Principles of International Law Friendly Relations and
Cooperation among States.

5. International Organization

Establishment, international personality, immunity

• An international organization is an organization that is set up by treaty among
two or more states. It is different from non – governmental organizations (NGO)
which are set up by private persons. The constituent document of international
organizations therefore is a treaty. For this reason, only states are members of
international organizations. As the ICJ put it in its Advisory Opinion on the Use
of Nuclear Weapons (1996) about the World Health Organization:

8.1 Immunities
• Because they enjoy international personality, they can also be given the
immunities and privileges of international persons. Their immunities, however,
have for basis not sovereignty, as it is for states, but the need for the effective
exercise of their functions.

8.2 The United Nations: Structure and Powers

• The UN is a universal organization charged with peacekeeping responsibilities,
the development of friendly relations among nations, the achievement of
international cooperation in solving international problems of an economic,
social, cultural and humanitarian character, and the promotion of human rights
and fundamental freedoms for all human beings without discriminations.
8.3 General Assembly
• The General Assembly distinguishes between “important questions” and “other
questions.” Important questions are decided by a two-thirds majority of a
members voting and present. “Other questions” require only a majority. The
Charter identifies what the “important questions” are and GA may, by a majority
vote, identify other important questions. (Article 18[3])

8.4 Security Council

• The Security Council distinguishes between “procedural matters” and “all other
matters.” Matters that are not procedural require nine affirmative votes,
including the “concurring votes of the permanent members.” (Article 27[3]) But
since Charter does not specify what matters are procedural, the Council
practice is that a decision on whether a matter is procedural or not also requires
the concurrence of the permanent members. Hence, a double veto by the
permanent members is possible. And an abstention is considered a veto.

8.5 ECOSOC
• The ECOSO has 54 member states elected for three years terms. It has a large
number of subsidiary organs, among them the UN Commission on Human
Rights and the Commission on the Status of Women.

8.6 Trusteeship Council

• The Trusteeship Council supervises non-self governing territories. Its
jurisdiction has already become very limited. Palau was the last entity to be
under the Council. The Council suspended operations after Palau became
independent on 1 October 1994.

8.7 Secretariat
• The Secretariat “shall comprise a Secretary General and such staff as the
Organization may require.” (Article 97) The Secretary General is elected to a
five year term by the General Assembly upon the recommendation of the
Security Council, subject to veto power. He is the chief administrator of the
organization and has the power to “bring to the attention of the Security Council
any matter which in his opinion may threaten the maintenance of international
peace and security.” (Article 99)

8.8 International Court of Justice

• The International Court of Justice is the principal judicial organ of the UN.

8.9 Other Agencies

• Aside from the main organs of the UN, there are also specialized agencies.
Some of these are: the United Nations Educational, Scientific and Cultural
Organization (UNESCO). The International Civil Aviation Organization (ICAO),
the World Health Organization (WHO), the Food and Agricultural Organization
(FAO), the World Bank and the International Monetary Fund (IMF)

8.10 Regional Organizations: ASEAN

• Regional Organizations also play an important role. But they are neither organs
nor subsidiary organs of the UN. They are autonomous international
organizations having an institutional affiliation with the UN by concluding
 agreements with the UN. (Article 5). They are international institutions created
by international agreements for the purpose of dealing with regional problems in
general or with specific matters be they economic, military or political.

6. Insurgents
• Insurgent groups which satisfy the material field of application of Protocol II may
be regarded as “para-statal entities possessing definite if limited form of
international personality.” State practice indicates two specific attributes of such
“personality.” First, they are recognized as having belligerent status against the
de jure government. Other states are therefore required to maintain neutrality
regarding them. Second, they are seen as having treaty making capacity.

7. National Liberations Movements

• National liberation movements are organized groups fighting in behalf of a
whole people for freedom from colonial powers. According to the First Protocol
of the 1977 Geneva Convention, they are “peoples fighting against colonial
domination and alien occupation and against racist regimes in the exercise of
their right of self – determination, as enshrined in the Charter of the United
Nations.”

8. Individuals
• In the early development of international law human beings were exclusively
under the control of states. In international law they were objects or at best
“beneficiaries” of international law. With the greater global awareness of human
rights individuals have now come to be recognized as possessing albeit limited
rights and obligations in international law.

Assessment No. 1
1. What is International Law?
2. What are the main functions of International Law?
3. What are the purpose of International Law? It is effective?
4. Do you think International Law affects your everyday life? If so, how?
 DISCUSSION
D. DIPLOMATIC AND CONSULAR LAW
1. DIPLOMATIC INTERCOURSE

• Diplomatic intercourse, also referred to as the right of legation, is the right of a

state to send and receive diplomatic missions, which enables states to carry on
friendly intercourse. Diplomatic relations and diplomatic missions are separately
established by mutual consent. [See Vienna Conv. on Diplomatic Rel.
(“VCRD”), art. 2] A State may have diplomatic relations without a diplomatic
mission, e.g. through nonresident ambassadors. [MAGALLONA]

1.1 Agents of Diplomatic Intercourse

a) Head of state
o The head of State represents the sovereignty of the State, and enjoys
the right to special protection for his physical safety and the preservation
of his honor and reputation. Upon the principle of extraterritoriality, his
quarters, archives, property and means of transportation are inviolate.
He is immune from criminal and civil jurisdiction, except when he himself
is the plaintiff, and is not subject to tax or exchange or currency
restrictions.
b) Foreign office
o The body entrusted with the conduct of actual day-to-day foreign affairs.
It is headed by a secretary or a minister who, in proper cases, may
make binding declarations on behalf of his government [Eastern
Greenland Case (PCIJ, 1933)]
c) Diplomatic corps
o This refers to the collectivity of all diplomatic envoys accredited to a
state composed of:

(1) Head of mission, classified into:

a) Ambassadors or nuncios, accredited to heads of state, and other
heads of mission of equivalent rank;
b) Envoys, Ministers and Internuncios, accredited to heads of state;
c) Charges d’affaires, accredited to Ministers of Foreign Affairs;

(2) Diplomatic staff, engaged in diplomatic activities and are accorded

diplomatic rank;

(3) Administrative and technical staff, those employed in the

administrative and technical service of the mission;

(4) Service staff, engaged in the domestic service of the mission.

[NACHURA]

o In the Philippines, the President appoints, sends and instructs the

diplomatic and consular representatives. [CONST. art. VII, sec. 16]
 1.2 Functions and Duties of Agents
1) Represent the sending State in the receiving State;
2) Protect in the receiving State the interests of the sending State and its
nationals, within the limits allowed by international law;
3) Negotiate with the government of the receiving State;
4) Ascertain, by all lawful means, the conditions and developments in the
receiving State and reporting the same to the sending State;
5) Promote friendly relations between the sending State and receiving
State, and developing their economic, cultural and scientific relations.
[VCRD, art. 3(1)]
6) ) If diplomatic relation is severed, entrust the protection of its nationals
to the diplomatic mission of a third state acceptable to the receiving
state. [VCDR, art. 45]
7) May protect the interest of a third State by agreement with the receiving
State, if there is no diplomatic relations between the third state and the
receiving state. [VCDR, art. 46] [MAGALLONA]

1.3 Immunities and Privileges

• Theoretical bases: Diplomatic immunities and privileges have been
justified under the following theories:
1) Extraterritoriality theory: The premises of the diplomatic mission
represent a sort of extension of the territory of the sending State.
2) Representational theory: The diplomatic mission personifies the sending
State.
3) Functional necessity theory: The privileges and immunities are
necessary to enable the diplomatic mission to perform its functions.
[MAGALLONA] This theory was adopted by the ILC when it drafted the
draft articles of the VCRD. [Id.]
2. CONSULAR RELATIONS
2.1 Establishment and Severance
• Consular relations are established by mutual consent. [Vienna Convention on
Consular Relations (“VCCR”), art. 2]
The consent given to the establishment of diplomatic relations between two
States implies consent to the establishment of consular relations, unless
otherwise stated. [Id.]
• But the severance of diplomatic relations shall not ipso facto involve the
severance of consular relations. [Id.]
• The above are rules of customary international law. [MAGALLONA, citing ILC]

2.2 Consuls
• Consuls are state agents residing abroad mainly for the following
purposes:
(1) In the interest of commerce and navigation;
(2) Issuance of visa (permit to visit his country); and
(3) Such other functions as are designed to protect national
2.3 Ranks
(1) Consul general heads several consular districts, or one exceptionally
large consular district;
(2) Consul is in charge of a small district or town or port;
(3) Vice Consul assists the consul;
(4) Consular agent is one entrusted with the performance of certain functions
by the consul.

2.4 Consular Functions

Consular functions include the following:
(1) Protecting the interests of the sending state in the territory of the receiving
state;
(2) Protecting and assisting the nationals of the sending state;
(3) Furthering the development of commercial, economic, cultural and
scientific relations between the sending state and the receiving state and
promoting friendly relations between them;
(4) Ascertaining by all lawful means the conditions and developments in the
commercial, economic, and cultural and scientific life of the receiving
state, reporting thereon to the government of the sending state, and giving
information to persons interested;
(5) Issuing passports and travel documents to nationals of the sending state
and visas and travel documents to persons wishing to travel to the
sending state;
(6) Acting as notary, civil registrar and similar administrative capacities; and
(7) Exercising rights of supervision and inspection pertaining to the sending
state as flag state and state of registry of aircraft.

2.5 Right to Consular Assistance

• Diplomatic protection: The right of a state to claim rights for its nationals
abroad.
• States have a positive duty to accord consular privileges to sending states
whose nationals have run into trouble in the jurisdiction of the receiving
states. [Avena Case (ICJ, 2004) and LaGrand Case (ICJ, 2001)]
• See VCCR, art. 36(1), which gives consular officers the right to communicate
with nationals of the sending state and to have access to them, and give
consular officers the right to visit a national of the sending state who is in
prison, custody or detention. [LaGrand Case (ICJ, 2001)]
• Hence, the duty of the (sending) state is to ensure that other states treat their
nationals abroad in a manner that complies with human standards recognized
under the International Covenant on Civil and Political Rights, among others
documents.
• N.B. However, the VCCR violation does not automatically result in the partial
or total annulment of conviction or sentence. [Avena Case (ICJ, 2004)]

2.6 Necessary Documents

• The following documents are necessary for the assumption of consular
functions:
(1) Letters patent (letter de provision): The letter of appointment or
commission which is transmitted by the sending state to the Secretary
 of Foreign Affairs of the country where the consul is to serve; [VCCR,
art. 11] and
(2) Exequatur: The authorization given to the consul by the sovereign of
the receiving State, allowing him to exercise his function within the
territory. [VCCR, art. 12(1)]
 The receiving State may refuse to give an exequatur and is not
required to give its reasons for refusal. [VCCR, art. 12(2)]

2.7 Immunities and Privileges

a) Personal inviolability
• Personal inviolability of consular officials means that:
(1) They are not liable to arrest or detention pending trial, except in case
of a grave crime and pursuant to a decision of a competent judicial
authority.
(2) They shall not be committed to prison nor be subject to any other
form of restriction to personal freedom, except in the case of grave
crime pursuant to a decision of competent judicial authority, or in the
execution of a final judicial decision. [VCCR, art. 41]

b) Inviolability of consular premises

• Inviolability of the consular premises has the following scope:
(1) Authorities of the receiving state shall not enter that part of the
consular premises exclusively used for consular work, except with the
consent of the head of the consular post, his designee, or the head of
the diplomatic mission; but consent of the consular head may be
assumed in case of fire or other disaster requiring prompt protective
action;
 Note that this “assumed consent” is not available as to the
inviolability of the premises of the mission.

(2) The receiving state has the special duty to take all appropriate steps
to protect the consular premises against intrusion or damage and to
prevent any disturbance of peace of the consular post or impairment
of its dignity;
(3) Consular premises, their furnishings, the property of the consular post
and its means of transport shall be immune from any form of
requisition for purposes of national defense or public utility;
(4) In case of consular premises, their furnishings, the property of the
consular post and its means of transport are expropriated for national
defense or public utility, all possible steps shall be taken to avoid
impeding the performance of consular functions, and prompt,
adequate and effective compensation shall be paid to the sending
state. [VCCR, art. 31]

• Consular premises refer to “the buildings or parts of buildings and the

land ancillary thereto, irrespective of ownership, used exclusively for
the purposes of consular post.” Also, consular premises have:
(1) Exemption from local jurisdiction for offenses committed in the
discharge of official functions, but not for other offense, except for
minor infractions;
 (2) Exemption from testifying on official communications or on matters
pertaining to consular functions;
(3) Exemption from taxes, customs duties, military or jury service;
(4) Personal inviolability of consular officials.

c) Inviolability of archives
• The inviolability of archives is unconditional. They shall be inviolable at all
times and wherever they may be. [VCCR, art. 33]

d) Freedom of communication
(1) The receiving state shall permit and protect freedom of information on
the part of the consular post for all official purposes;
(2) In communicating with the government, the diplomatic missions and
other consular posts of the sending state, the consular post may
employ all appropriate means, including diplomatic or consular bags
and messages in code or cipher;
(3) The official correspondence of the consular post shall be inviolable;
(4) The consular bag shall neither be opened nor detained. [VCCR, art.
35]
The receiving state may, however, request that the consular bag be
opened if the authorities have serious reasons to believe that the bag
contains something other than correspondence, documents or articles
intended exclusively for official use.
(1) If the request is accepted, the bag may be opened in the presence of
the authorized representative of the sending state;
(2) If the request is refused, the bag shall be returned to its place of
origin. [VCCR, art. 35]

e) Immunity from local jurisdiction

General rule: Consular officers and employees are entitled to immunity
from the jurisdiction of administrative and judicial authorities in the
receiving state.

Exceptions: This immunity shall not apply to a civil action either:

(1) Arising out of a contract by a consular officer or employee, which he
did not conclude expressly or impliedly as an agent of the sending
state; or
(2) By a third party for damage arising from an accident caused by
vehicle, vessel or aircraft in the receiving state. [VCCR, art. 43]

E. GENERAL PRINCIPLES OF TREATY

1. Concept
1.1 Under International Law
• A treaty is:
(1) An international agreement;
(2) Concluded between states;
(3) In written form;
 (4) Governed by international law;
(5) Whether embodied in a single instrument or in two or more related
instruments; and
(6) Whatever its particular designation [VCLT, art. 2(1)]
• Under the VCLT, the term “treaty” includes all agreements between states,
regardless of how they are called. Thus, for purposes of international law,
treaties, executive agreements, exchanges of notes, etc., are all treaties.
• N.B. The definitions under the VCLT are “without prejudice to the use of
those terms or to the meanings which may be given to them in the internal
law of any State.” [VCLT, art. 2(2)]

1.2 Under Philippine Law

• Philippine law makes a distinction between treaties and executive

agreements. Both are equally binding, but treaties require the concurrence of
the Senate to be effective.

Treaty Executive Agreement

Subject Matter
(1) Political issues; (1) Transitory effectivity;
(2) Changes in national policy; (2) Adjusts details to carry out
(3) Involves agreements of a well-established national
permanent character policies and traditions;
(3) Temporary;
(4) Implements treaties, statutes,
policies
Ratification
Requires ratification by two- Does not require Senate
thirds (2/3) of the Senate to be concurrence to be binding
valid and effective [CONST.
art. VII, sec. 21]

• Thus, treaties have to be transformed in order to be part of Philippine law. A

treaty is “transformed” when it is ratified by the Senate. [CONST. art. VII, sec.
21] After ratification, a treaty shall be deemed as if legislated by our
legislature.

2. Treaty – Making Process

1) Negotiation. The state representative discuss the terms and provisions

of the treaty
2) Adoption. When the form and content have been settled by the
negotiating states, the treaty is adopted. This is only preparatory to (1)
the authentication of the text of the treaty and (2) the signing thereof.
[VCLT, art. 9]
3) Authentication. A definitive text of the treaty is established as the
correct and authentic one. [VCLT, art. 10]
4) Expression of consent. The state parties express their consent to be
 bound by the terms of the treaty. The modes of such expression are
provided in the VCLT.

• In the Philippines, the negotiation of treaties and their ratification are

executive functions, subject to concurrence of the Senate. Consent to be
bound by the terms of a treaty may be expressed through:

(7) Signature, when the negotiator is authorized to sign the treaty. This signature
is sufficient to bind the state under the treaty if:
a) The treaty provides that signature shall have that effect;
b) It is otherwise established that the negotiating states agreed that
signature should have that effect; or
c) The state can be shown to have had the intention to be bound by the
signature (e.g., based on the powers of its representative) (article
12(1), VCLT);

(8) Ratification, the formal consent to the treaty given by the head of state,
sometimes in conjunction with the legislature;
(9) Exchange of instruments constituting the treaty;
(10) Acceptance;
(11) Approval;
(12) Accession, the method by which a state, under certain conditions,
becomes a party to a treaty of which it is not a signatory and in the
negotiation of which it did not take part;
(13) By any other means agreed by the parties.

Amendment or modification of treaty

General rule: Consent of all the parties is required.

Exception: If the treaty itself so allows, two states may modify a provision
only insofar as their relationship inter se.

Reservations

General rule: A reservation is a unilateral statement made by a state upon

entering a treaty and operates to exclude or modify the legal effect of certain
provision/s of the treaty in their application to the reserving state. [VCLT, art.
19]

Exceptions: A reservation shall not operate to modify or exclude the

provisions of a treaty:

(1) Where the treaty expressly prohibits reservations in general;

(2) Where the treaty expressly prohibits that specific reservation being
made; or
(3) Where the reservation is incompatible with the object and purpose of
the treaty. [Reservation to the Genocide Conventions Advisory
Opinion(ICJ, 1951)]
2.1 Invalid Treaties

(1) If the treaty violates a jus cogens norm of international law;

(2) If the conclusion of a treaty is procured by threat or use of force;
(3) Error of fact, provided that such fact formed an essential basis of a state’s
consent to be bound;
(4) If the representative of a state was corrupted to consent by another
negotiating state;
(5) If consent was obtained through fraudulent conduct of another negotiating
state;
(6) If the representative consented in violation of specific restrictions on
authority, provided the restriction was notified to the other negotiating states
prior to the representative expressing such consent;
(7) If consent was given in violation of provisions of internal law regarding
competence to conclude treaties that is manifest and of fundamental
importance. [VCLT]

2.2 Grounds for Termination

(1) Expiration of the term, or withdrawal of a party in accordance with the treaty;
(2) Extinction of a party to the treaty, when the treaty rights and obligations would
not devolve upon the successor-state;
(3) Mutual agreement of parties;
(4) Denunciation or desistance by a party;
(5) Supervening impossibility of performance;
(6) Conclusion of a subsequent inconsistent treaty;
(7) Loss of subject matter;
(8) Material breach or violation of treaty
(9) Fundamental change in circumstance (similar to the customary norm of rebus
sic stantibus) such that the foundation upon which the consent of a state to be
bound initially rested has disappeared. [VCLT, art. 62]. The requisites are:

a. The change is so substantial that the foundation of the treaty

has altogether disappeared;
b. The change was unforeseen or unforeseeable at the time of
the perfection of the treaty;
c. The change was not caused by the party invoking the doctrine
d. The doctrine was invoked within a reasonable time;
e. The duration of the treaty is indefinite;
f. The doctrine cannot operate retroactively (it must not
adversely affect provisions which have already been complied
with prior to the vital change);
(10) Outbreak of war between the parties, unless the treaty relates to the conduct
of war;
(11) Severance of diplomatic relations, if such relationship is indispensable for the
treaty’s application;
(12) Jus cogens application, orthe emergence of a new peremptory norm of
general international law which renders void any existing, conflicting treaty.
F. NATIONALITY AND STATELESSNESS
1. Nationality

• 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. It is membership in a
political community with all its concomitant rights and obligations.

• Nationality is important in international law because an individual ordinarily

can participate in international relations only through the instrumentality of the
state to which he belongs, as when his government asserts a claim on his
behalf for injuries suffered by him in a foreign jurisdiction. This remedy would
not be available to a stateless individual.
2. Acquisition of Nationality

2.1 Birth
(1) Jus soli, where a person acquires the nationality of the state where he is born;
(2) Jus sanguinis, where a person acquires the nationality of his parents.

2.2 Naturalization
• Naturalization is a process by which a person acquires, voluntarily or by
operation of law, the nationality of another state.
• There are two (2) types of naturalization:
(1) Direct:
a. By individual proceedings, usually judicial, under general naturalization laws;
b. By special act of legislature;
c. By collective change of nationality as a result of cession or subrogation
(naturalization en masse);
d. By adoption (in some cases);
(2) Derivative, which is usually subject to stringent restrictions and conditions:
a. On the wife of the naturalized husband;
b. On the minor children of the naturalized parent;
c. On the alien woman upon marriage to a national.

3. Multiple Nationality

• Multiple nationality is acquired as the result of the concurrent application to

an individual of the conflicting municipal laws of two or more states claiming
him as their national.

3.1 Illustrations
• A child born in the United States of Filipino parents would be an American
national under jus soli and a Filipino national under jus sanguinis;

• A woman marrying a foreigner may retain her own nationality under the laws
of her state while also acquiring the nationality of her husband under the laws
of his state.
 3.2 Doctrine of Indelible Allegiance
• An individual may be compelled to retain his original nationality
notwithstanding that he has already renounced or forfeited it under the laws of
a second state whose nationality he has acquired [Nachura].

3.3 Conflict of Nationality Law

• Under the Hague Convention of 1930, any question as to whether a person
possesses the nationality of a particular state shall be determined in
accordance with the law of that state. These laws shall be recognized by
other states so long as they are consistent with international conventions,
international customs and the principles of law generally recognized with
regard to nationality.

3.4 Principle of Effective Nationality

• Within a third state, a person having more than one nationality shall be
treated as if he had only one. The third state shall recognize conclusively in
its territory either the nationality of the country in which he is habitually and
principally present or the nationality of the country with which he appears to
be in fact most closely connected.

• The courts of third states resolve the conflict by having recourse to

international criteria and their prevailing tendency is to prefer the real and
effective nationality.[Nottebohm Case (ICJ, 1955)]
4. Loss of Nationality
(1) Voluntary
a) Renunciation (express or implied);
b) Request for release.
(2) Involuntary
a) Forfeiture as a result of some disqualification or prohibited act;
b) Substitution of one nationality for another.

5. Statelessness

• Statelessness is the condition or status of an individual who is born without

any nationality or who loses his nationality without retaining or acquiring
another [CRUZ].

• Under the Convention Relating to the Status of Stateless Persons (1960), a

stateless person is entitled to, among others, the right to religion and religious
instruction, access to courts, elementary education, public relief and
assistance and rationing of products in short supply, as well as treatment of
no less favorable than that accorded to aliens.

• Also, under the Universal Declaration of Human Rights:

(1) Everyone has a right to the nationality.
(2) No one shall be arbitrarily deprived of his nationality nor denied the
right to change his nationality.
 6. Citizenship of Foundlings

• Foundlings are citizens under international law. Article 24 of the International

Covenant on Civil and Political Rights provides for the right of every child “to
acquire a nationality.” The Philippines is obligated under various conventions
such as the ICCPR to grant nationality from birth and ensure that no child is
stateless. This grant of nationality must be at the time of birth, and it cannot
be accomplished by the application of our present naturalization laws,
Commonwealth Act No. 473, as amended, and RA 9139, both of which
require the applicant to be at least 18 years old. [Poe-Llamanzares v.
COMELEC, G.R. No. 221697 (2016)] (N.B. Outside of the bar coverage)

• In a case decided by the Supreme Court, the Chief Justice pointed out that in
166 out of 189 countries surveyed (or 87.83%), foundlings are recognized as
citizens. These circumstances, including the practice of jus sanguinis
countries, show that it is a generally accepted principle of international law to
presume foundlings as having been born of nationals of the country in which
the foundling is found. [Poe-Llamanzares v. COMELEC, G.R. No. 221697
(2016)] (N.B. Outside of the bar coverage)

G. STATE RESPONSIBILITY
1. Doctrine of State Responsibility

1.1 Definition
• It is a set of principles governing when and how states become responsible
for breaches of international obligations, and liability arising therefrom.
• Every internationally wrongful act of a state entails the international
responsibility of that State [Articles on State Responsibility (“ASR”), art. 1]
• N.B. Portions of the ASR codify customary international law on State
responsibility.

1.2 Elements
• There is an internationally wrongful act of a state when the conduct consisting
of an action or omission:

(1) Is attributable to the State under international law; and

(2) Constitutes a breach of an international obligation of a State. [ASR, art.
2].

• The characterization of an act of a state as internationally wrongful is

governed by international law. Such characterization is not affected by the
characterization of the same act as lawful by internal law. [ASR, art. 4]

1.3 Attribution
• Under the ASR, the following acts are attributable to States, i.e. States may
be held internationally responsible for them:
(1) Conducts of organs of a state (art. 4); French secret service agents
conducted undercover operations which led to the sinking of the Dutch
registered Greenpeace ship Rainbow Warrior. France admitted
responsibility. (Rainbow Warrior Case);
(2) Conducts of persons or entities exercising elements of governmental
authority (art. 5);

A State is responsible for damage suffered by a foreigner as the result

of acts or omissions of autonomous institutions exercising public
functions of a legislative or administrative character, if such acts or
omissions contravene the international obligations of the State.
(League of Nations, Conference for the Codification of International
Law, Bases of Discussion)

(3) Conducts of organs placed at the disposal of a state by another state

(art. 6);

A section of the health service or some other unit placed under the
orders of another country to assist in overcoming an epidemic or
natural disaster, or judges appointed in particular cases to act as
judicial organs of another State. (Draft articles on Responsibility of
States for Internationally Wrongful Acts, with commentaries)

(4) Acts done in excess of authority or in contravention of instructions

(ultra vires acts) (art. 7);

Two Mexican military officers, having failed to extort money from

Caire, a French national, killed the latter. Such acts were deemed
attributable to Mexico. (Caire Case)

(5) ) Conduct directed or controlled by a state (art. 8);

The United States was responsible for the “planning, direction and
support” given by the United States to Nicaraguan operatives.
(Nicaragua Case)

(6) Conduct carried out in the absence or default of the official authorities
(art. 9);

The acts of the Revolutionary Guards or “Komitehs” in performing

immigration, customs and similar functions at Tehran airport
immediately after the revolution in the Islamic Republic of Iran was
attributable to the Islamic Republic of Iran, on the basis that, if it was
not actually authorized by the Government, then the Guards at least
exercised elements of governmental authority in the absence of official
authorities, in operations of which the new Government must have
had knowledge and to which it did not specifically object. (Yeager v
Iran)
 (7) ) Conduct of insurrectional or other movements (art. 10);

An American citizen, employed by an American company in Iran,

alleged that he was forcefully expelled from Iran three days before the
Islamic Revolutionary Government took office and claimed damages
for his loss of employment benefits. The commission affirmed the
principle that where a revolution leads to the establishment of a new
government, the state is held responsible for the act of the overthrown
government. (Short v Iran)

(8) Conduct acknowledged and adopted by a state as its own (art. 11).

The policy announced by the Ayatollah Khomeini of maintaining the

occupation of the Embassy and the detention of its inmates as
hostages for the purpose of exerting pressure on the US Government
as complied with by other Iranian authorities and endorsed by them
repeatedly in statements made in various contexts were attributable to
the State. (United States Diplomatic and Consular Staff in Tehran)

1.4 Effective Control

• Under the law on state responsibility, a state is responsible only for the acts of
its organs and per the Nicaragua case, for those non state actors over which
it exercised “effective control,” that is, it should have instructions or provided
the direction pursuant to which the perpetrators of the wrongful act acted.

• In the 2007 Application of the Convention on the Prevention and Punishment

of the Crime of Genocide case, the ICJ said the “over-all control test” was
only relevant in in so far as the question of the characterization of the
Yugoslav conflict as an international armed conflict or whether or not the
conflict has been internationalized; it is not relevant in so far but not to the
task of determining whether a state is responsible for the acts of certain non-
state organs involved in that same international armed conflict.
Effective Control and Overall Control; Distinguished

Effective Control Over – All Control

o Control must have been exercised o Control must have gone “beyond
in respect to each individual act or the mere financing and equipping
omission which constitutes the of such forces” and must have
breach. involved “participation in the
planning and supervision of military
o The private persons or groups operations.”
must have been mere agents of
the state who were told what had
to be done at all stages.
o Provides a higher threshold for o Presents lower threshold for
attribution. attribution.

o A general situation of dependence o There need not be a showing of

and support would thus be actual or direct control.
insufficient to justify attribution.
 o When dealing with the matter of o When dealing with the matter of
state responsibility individual criminal responsibility
and the application of the rules of
international humanitarian law (e.g.
Prosecutor v Tadic)

2. Consequences of State Responsibility

2.1 Duty of Cease the Act

• The State responsible for the wrongful act is under the obligation to:

(1) Cease the act if it is still continuing; and

(2) Offer appropriate assurances and guarantees of non-repetition [ASR, art. 30]

2.2 Duty of Make Reparation

• The responsible State is under an obligation to make full reparation for the
injury caused by the internationally wrongful act.

• Injury includes any damage, whether material or moral, caused by the

internationally wrongful act of a State. [ASR, art. 31]
• The responsible State may not rely on the provisions of its internal law as
justification for failure to comply with its obligations to make reparations.
[ASR, art. 32]
• There are three forms of reparation:
(1) Restitution;
(2) Compensation; and
(3) Satisfaction.

a) Restitution
• A State responsible for an internationally wrongful act is under an
obligation to make restitution, that is, to re-establish the situation
which existed before the wrongful act was committed, provided and to
the extent that restitution:

(1) Is not materially impossible;

(2) Does not involve a burden out of all proportion to the benefit of the
party deriving from restitution instead of compensation. [ASR, art. 35]

b) Compensation
• The State responsible for an internationally wrongful act is under an
obligation to compensate for the damage caused thereby, insofar as
such damage is not made good by restitution.
• The compensation shall cover any financially assessable damage
including loss of profits insofar as it is established. [ASR, art. 36]

c) Satisfaction
 • The State responsible for an internationally wrongful act is under an
obligation to give satisfaction for the injury caused by that act insofar
as it cannot be made good by restitution or compensation.
• Satisfaction may consist in an acknowledgement of the breach, an
expression of regret, a formal apology or another appropriate
modality.
• Satisfaction shall not be out of proportion to the injury and may not
take a form humiliating to the responsible State. [ASR, art. 37]

Assessment No. 2
1. Distinguish State from Government.
2. Distinguish Citizenship from Nationality.
3. What are the rights of an Alien?
 DISCUSSION
H. JURISDICTION OF STATES
1. Definition
• Jurisdiction means the power of a state under international law to govern persons
and property by its municipal law. This may be criminal or civil, and may be
exclusive or concurrent with other states. [HARRIS]

2. Kind of Jurisdiction

• Prescriptive jurisdiction refers to the power of a State to make its law

applicable to the activities, relations, or status of persons, or the interests of
persons in things, whether by legislation, by executive act or order, by
administrative rule or regulation, or by determination by a court.

• Adjudicative jurisdiction refers to a State’s jurisdiction to subject persons or

things to the process of its courts or administrative tribunals, whether in civil or in
criminal proceedings, whether or not the state is a party to the proceedings.

• Enforcement jurisdiction refers to a State’s jurisdiction to enforce or compel

compliance or to punish noncompliance with its laws or regulations, whether
through the courts or by use of executive, administrative, police, or other non-
judicial action.

3. Principles of State Jurisdiction

• TERRITORIALITY PRINCIPLE: Jurisdiction is determined by reference to the

place where the act occurred or was committed;
• NATIONALITY PRINCIPLE: A court has jurisdiction if the offender is a
national of the forum State;
• PROTECTIVE PRINCIPLE: A court is vested with jurisdiction if a national
interest or policy is injured or violated;
• UNIVERSALITY PRINCIPLE: Jurisdiction is asserted with respect to acts
considered committed against the whole world (e.g., piracy, see People v. Lo-
lo and Saraw (1922)).
• PASSIVE PERSONALITY PRINCIPLE: A court has jurisdiction if the
offended party of the act is a national of the forum state. [S.S. Lotus Case
(PCA, 1927)]
• CONFLICTS OF JURISDICTION: A dispute can be brought entirely or partly
before two or more states.

4. Reserved Domain of Domestic Jurisdiction

• It is the domain of state activities where the jurisdiction of the state is not
bound by international law. The extent of this domain depends on
international law and varies according to its development (i.e., when a norm
crystallizes into custom).
 • The reservation of this domain is without prejudice to the use of enforcement
measures under UN Charter, ch. VII.

5. Doctrine of State Immunity

• It refers to a principle by which a state, its agents, and property are immune
from the jurisdiction of another state [MAGALLONA].
• This principle is premised on the juridical equality of states, according to
which a state may not impose its authority or extend its jurisdiction to another
state without the consent of the latter through a waiver of immunity. Thus,
domestic courts must decline to hear cases against foreign sovereigns out of
deference to their role as sovereigns.
• Immunity may be:
(1) Absolute sovereign immunity, where a state cannot be sued in a
foreign court no matter what the act it is sued for; or
(2) Restrictive sovereign immunity, where a state is immune from suits
involving governmental actions (jure imperii), but not from those
arising from commercial or non-governmental activity (jure gestionis).

Immunity as a customary norm

• The principle of sovereign immunity from suits is a customary norm of

international law that holds, unless waived by the state concerned.
• Such immunity applies even if the claim against the state is for violation of a
jus cogensnorm in international law.
• Furthermore, State assets are also immune from execution in connection with
such claim. [Jurisdictional Immunities of the State Case (ICJ, 2012)]

I. TREATMENT OF ALIENS
1. Standard of Treatment
• No obligation to admit aliens: Flowing from its right to existence and as an
attribute of sovereignty, no state is under obligation to admit aliens. The state
can determine in what cases and in under what conditions it may admit such.
• Once it admits aliens, under the international standard of justice, which calls
for compliance with the ordinary norms of official conduct observed in civilized
jurisdictions, aliens should be protected by certain minimum standards of
humane protection, however harsh the municipal laws of a state may be.
• States have concomitant obligations with their rights as sovereigns over their
territories “Territorial sovereignty […] involves the exclusive right to display
the activities of a State. This right has a corollary, a duty: the obligation to
protect within the territory the rights of other States, in particular their right to
integrity and inviolability in peace and in war, together with the rights which
each State may claim for its nationals in foreign territory.” [Island of Las
Palmas Arb. (PCA, 1928)]
• However, an alien cannot claim a preferred position vis-a-vis the national of
the state. [see Calvo Doctrine, infra]
2. State of Responsibility
• A state may be held responsible for:
(1) An international delinquency;
(2) Directly or indirectly imputable to it;
(3) Which causes injury to the national of another state.

• Liability will attach to the state where its treatment of the alien falls below the
international standard of justice or where it is remiss in according him the
protection or redress that is warranted by the circumstances.

• The propriety of governmental acts should be put to the test of international

standards. The treatment of an alien, in order to constitute an international
delinquency, should amount to an outrage, to bad faith, to willful neglect of
duty, or to an insufficiency of governmental action so far short of international
standards that every reasonable and impartial man would readily recognize
its insufficiency[Neer Case (PCIJ, 1926)].

• For the enforcement of this state responsibility, the following must be

complied with:
(1) Exhaustion of local administrative remedies;
(2) Representation of the alien by his own state in the international claim
for damages.

3. CALVO CLAUSE
• A stipulation which states that the foreign party must rely exclusively on local
remedies and not seek any diplomatic protection.

• Rationale: (1) Non-intervention; and (2) aliens are entitled only to such rights
as are accorded nationals and thus had to seek redress for grievances
exclusively in the domestic arena. [SHAW]

• e.g. A stipulation may be made by virtue of which an alien waives or restricts

his right to appeal to his own state in connection with any claim arising from a
contract with a foreign state and limits himself to the remedies available under
the laws of that state.

4. Extradition
• Extradition means the surrender of a person by one state to another state
where he is wanted for prosecution or, if already convicted, for punishment
[CRUZ].

• It is also the removal of an accused from the Philippines with the object of
placing him at the disposal of foreign authorities to enable the requesting
state or government to hold him in connection with any criminal investigation
directed against him in connection with any criminal investigation directed
against him or the execution of a penalty imposed on him under the penal or
criminal law of the requesting state or government. [Pres. Dec. 1086]

• Governed by treaty: Extradition is governed by treaty between the state of

refuge and the state of origin.
4.1 Fundamental Principle
(1) Extradition is based on the consent of the state of the state of asylum as
expressed in a treaty or manifested as an act of goodwill.

(2) Principle of specialty: A fugitive who is extradited may be tried only for the
crime specified in the request for extradition and included in the list of
offenses in the extradition treaty. [US v. Rauscher, 119 U.S. 407 (1886)]

(3) Any person may be extradited, whether he be a national of the requesting

state, of the state of refuge or of another state.

(4) Political and religious offenders are generally not subject to extradition. For
the purpose of extradition, genocide and murder of the head of state or any
member of his family are not political offenses.
(5) In the absence of special agreement, the offense must have been committed
within the territory or against the interests of the demanding state.

(6) Rule of double criminality: The act for which extradition is sought must be
punishable in both the requesting and requested states.

(7) Autdedereautjudicare (means ‘either extradite or prosecute’) is a

conventional obligation of States found in various treaties. A state subject to
this obligation is bound to extradite if it does not prosecute, and prosecute if it
does not extradite.

4.2 Procedure

1. A request for extradition is presented through diplomatic channels to the

state of refuge with the necessary papers for identification.
2. The request is received by the state of refuge.
3. A judicial investigation is conducted by the state of refuge to ascertain if
the crime is covered by the extradition treaty and if there is a prima facie
case against the fugitive according to its own laws.
4. If there is a prima facie case, a warrant of surrender will be drawn and
the fugitive will be delivered to the state of origin.

• The evaluation process partakes of the nature of a criminal investigation,

having consequences which will result in deprivation of liberty of the
prospective extraditee. A favorable action in an extradition request exposes
a person to eventual extradition to a foreign country, thus exhibiting the
penal aspect of the process.

• The evaluation process itself is like a preliminary investigation since both

procedures may have the same result: the arrest and imprisonment of the
respondent. The basic rights of notice and hearing are applicable in criminal,
civil and administrative proceedings. Non-observance of these rights will
invalidate the proceedings. Individuals are entitled to be notified of any
pending case affecting their interests, and upon notice, may claim the right to
appear therein and present their side [Secretary of Justice v. Lantion (2000)].
 4.3 Extradition and Deportation Distinguished

Extradition Deportation
o Effected at the request of o Unilateral act of the state
another state

o Based on offenses committed in o Based on causes arising in the

the state of origin local state.

o Calls for the return of the o An undesirable alien may be

fugitive to the requesting state deported to a state other than
his own or the state of origin.

Assessment No. 3
1. What is Extradition?
2. What are the possible advantages of Extradition? What are the possible
disadvantages?
3. How do International Treaties and agreement with other states impact domestic law?
 DISCUSSION
J. INTERNATIONAL HUMAN RIGHTS LAW
1. Definition
• Human rights are those fundamental and inalienable rights which are
essential for life as a human being. They pertain to rights of an individual as a
human being which are recognized by the international community as a whole
through their protection and promotion under contemporary international law.

2. Classification
(1) First generation rights consist of civil and political rights;
(2) Second generation rights consist of economic, social and cultural rights;
(3) Third generation rights consists of the rights to development, to peace, and to
environment. [Vasak]

First Generation Second Generation

Obligatory Force
o Strictly (or objectively) obligatory, o Relatively obligatory, states are
whatever the economic or other required to progressively achieve
conditions of the states obligated the full realization of these rights
“to the maximum of their available
resources”
Derogation/Restriction
o May only be derogated in a public o May be restricted for the general
emergency welfare, with or without an
“emergency that threatens the
independence or security of a
state party.”

3. Universal Declaration of Human Rights

• The UDHR is the first comprehensive catalogue of human rights proclaimed
by an international organization. It is not a treaty.
• It has no obligatory character because it was adopted by the UN General
Assembly as Resolution 217A (III). As a resolution, it is merely
recommendatory.
• Despite this, the UDHR is considered a normative instrument that creates
binding obligations for all states because of the consensus evidenced by the
practice of states that the UDHR is now binding as part of international law
[CARILLO].
• The UDHR embodies both first and second generation rights. The civil and
political rights enumerated include:

(1) The right to life, liberty, privacy and security of person;

(2) Prohibition against slavery;
(3) The right not to be subjected to arbitrary arrest, detention or exile;
(4) The right to fair trial and presumption of innocence;
(5) The right to a nationality;
(6) The right to freedom of thought, conscience and religion;
(7) The right to freedom of opinion and expression;
(8) Right to peaceful assembly and association;
(9) The right to take part in the government of his country.
 • The economic, social and cultural rights enumerated include:
(1) The right to social security;
(2) The right to work and protection against unemployment;
(3) The right to equal pay for equal work;
(4) The right to form and join trade unions;
(5) The right to rest and leisure.

4. International Covenant on Civil and Political Rights

• The ICCPR is an international covenant and is binding on the respective state
parties.
• It embodies the first generation of human rights, although it lists more
rights than the UDHR:

(1) The right to own property;

(2) The right to seek in other countries asylum from prosecution;

(3) The right of members of ethnic, religious or linguistic groups not to be

denied to enjoy their own culture, to profess and practice their own
religion, or to use their own language;

(4) The right to compensation in case of unlawful arrest;

(5) The right to legal assistance in criminal prosecution;

(6) The right against self-incrimination;

(7) Protection against double jeopardy;

(8) Right to review by higher tribunal in case of criminal conviction;

(9) Right of every child to nationality;

(10) Right to protection of a child as required by his status as a minor;

(11) Right of persons below 18 years old not to be sentenced to death for
crimes;

(12) Right against the carrying out of death sentence on the part of a
pregnant woman.

• The following are obligations of state parties under the ICCPR:

(1) State parties undertake to respect and to ensure to all individuals

within their territory the rights enumerated therein, without distinction
of any kind, such as race, color, sex, language, religion, political or
other opinion, national or social origin, birth or other status.
 (2) State parties are required to take the necessary steps to adopt
legislative or other measures that are necessary to give effect to the
rights recognized in the ICCPR.

(3) State parties must ensure that any person whose rights or freedoms
are violated have an effective remedy, notwithstanding that the
violation has been committed by persons action in an official capacity.

(4) State parties must ensure that any person claiming such remedy shall
have his right thereto determined by competent judicial, administrative
or legislative authority, and that they shall enforce the remedy when
granted.

5. International Covenant on Economic, Social and Cultural Rights

• The ICESCR, like the ICCPR, is an international covenant and is binding on
the respective State Parties. It embodies the second generation of human
rights, although it lists more rights than the UDHR:
(1) Right to health;
(2) Right to strike;
(3) Right to be free from hunger;
(4) Rights to enjoy the benefits of scientific progress; (5) Freedom for
scientific research and creativity.
• Under the ICESCR, state parties are required to undertake the necessary
steps to the maximum of its available resources, with a view to achieving
progressively the full realization of the rights enumerated in the covenant by
all appropriate means.

COMMON PROVISIONS IN THE ICCPR AND ICESCR

• The common provisions of the two covenants deal with collective rights,
namely:
(1) The right of self-determination of peoples;
(2) The right of peoples to freely dispose of their natural wealth and
resources;
(3) The right of peoples not to be deprived of their own means of
subsistence.
• These rights were not covered by the UDHR.

Assessment No. 4
1. How can we protect our Human Rights?
2. Why should we respect Human Rights?
3. What are the 5 basic Human Rights?
4. What are the challenges of Human Rights?
5. Can the head of state be charge criminally for violation of Human Rights? If
proven, can he be put into prison?
 DISCUSSION
K. INTERNATIONAL HUMANITARIAN LAW
1. Definition
• International Humanitarian Law (IHL) is the branch of public international law
which governs armed conflicts to the end that the use of violence is limited
and that human suffering is mitigated or reduced by regulating or limiting the
means of military operations and by protecting those who do not or no longer
participate in the hostilities.

2. Two Branches
(1) Law of The Hague, which establishes the rights and obligations of
belligerents in the conduct of military operations, and limits the means of
harming the enemy; and
(2) Law of Geneva, which is designed to safeguard military personnel who are
no longer taking part in the fighting and people not actively engaged in
hostilities (i.e. civilians). [International Committee of the Red Cross (“ICRC”)].

3. Philippine Practice
• RA 9851 was enacted on December 11, 2009. It is the Philippine act on
crimes against international humanitarian law, genocide, and other crimes
against humanity. Its policies are:
• The Philippines renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as a part of the law of the
land.
• The state adopts the generally accepted principles of international law,
including the Hague Conventions of 1907, the Geneva Conventions on the
protection of victims of war and international humanitarian law, as part of the
law our nation.

4. Categories of Armed Conflict

• IHL distinguishes two types of armed conflicts, namely:
(1) International armed conflicts, opposing two or more States, and
(2) Non-international armed conflicts, between governmental forces and
nongovernmental armed groups, or between such groups only.
• An internationalized non-international armed conflict is a civil war
characterized by the intervention of the armed forces of a foreign power
[GASSER].

4.1 International Armed Conflict

• An international armed conflict occurs when one or more states have
recourse to armed force against another state [Prosecutor v. Tadic (ICTY,
1990)], regardless of the reasons or the intensity of this confrontation.
• Relevant rules of IHL may be applicable even in the absence of open
hostilities. Moreover, no formal declaration of war or recognition of the
situation is required.
• The existence of an international armed conflict, and as a consequence, the
possibility to apply IHL to this situation, depends on what actually happens on
the ground. It is based on factual conditions. [ICRC]’
 4.2 International or Non – International Armed Conflicts
• The main legal sources in this regard are the Common Article 3, Geneva
Conventions, and Article 1, Additional Protocol II.
• Common Article 3 applies to “armed conflicts not of an international character
occurring in the territory of one of the High Contracting Parties.” These
include armed conflicts in which one or more non-governmental armed
groups are involved.
• Article 1 develops Common Article 3. It applies to:
(1) All armed conflicts which take place in the territory of a state party;
(2) Between its armed forces and dissident armed forces or other
organized groups;
4.3 War of National Liberation
• An armed conflict may be of such nature in which peoples are fighting against
colonial domination and alien occupation and against racist regimes in the
exercise of their right to self-determination. This conflict is considered an
international armed conflict under Article 1, 3rd and 4th pars, Protocol 1.
• Wars by peoples against racist, colonial and alien domination “for the
implementation of their right to self-determination and independence is
legitimate and in full accord with principles of international law,” and that any
attempt to suppress such struggle is unlawful (Resolution 3103 (XXVIII)).
• When peoples subjected to alien domination resort to forcible action in order
to exercise their right to self-determination, they “are entitled to seek and to
receive support in accordance with the purposes and principles of the
Charter.” [UN GA Reso. 2625 (XXV)]

5. Core International Obligations of States in IHL

• Common Article 1 of all four Geneva Conventions is a key provision when it
comes to a state’s responsibilities under IHL. It provides that states are
responsible to “respect and ensure respect” for the conventions in all
circumstances.

In general, IHL defines the following obligations:

(1) Parties to an armed conflict, together with their armed forces, do not
have unlimited choice of methods or means of warfare. They are
prohibited from employing weapons or means of warfare that cause
unnecessary damage or excessive suffering.
(2) Parties to an armed conflict shall, at all times, distinguish between
civilian population and the combatants (principle of distinction).
Civilians shall be spared from military attacks which shall be directed
only against military objectives.
(3) Persons hors de combat are those who have been injured in the
course of hostile battle action and are no longer able to directly take
part in hostilities. They shall be protected and treated humanely
without any adverse distinction. Their right to life and physical and
moral integrity shall be respected.
(4) It is prohibited to kill or injure an enemy who is hors de combat or who
surrenders.
 (5) The wounded and the sick shall be protected and cared for by the
party to the conflict which has them in its power. Protection shall also
apply to medical personnel, establishments, transports and material.
(6) Combatants and civilian who are captured by authority of the party to
a dispute are entitled to respect for their right to life, dignity,
conviction, and other personal rights. They shall be protected against
acts of violence or reprisals. [Legality of the Threat or Use of Nuclear
Weapons Advisory Opinion (1996)]

The ICCPR, particularly its protection on the right to life, does not
determine the legality of the use of nuclear weapons in an armed
conflict. What applies is the lexspecialis, which is the IHL. It
determines whether the taking of life in times of war has been
arbitrary.
6. Principles of IHL
6.1 Combatants
• Members of the armed forces of a party to a conflict (Article 3(2), Protocol 1).
They have the right to participate directly and indirectly in hostilities (Art 43(2)
Protocol 1). Only combatants are allowed to engage in hostilities.
• A combatant is allowed to use force, even to kill, and will not be held
personally responsible for his acts, as he would be where he to the same as a
normal citizen (Gasser).

6.2 HORS DE COMBAT

• Under Article 41(2), Protocol I, a person is hors de combat if:
(1) He is in the power of an adverse party to the conflict;
(2) He clearly expresses an intention to surrender; or
(3) He has been rendered unconscious or is otherwise incapacitated by
wounds or sickness, and is therefore incapable of defending himself,
provided that in any of these cases, he abstains from any hostile act and
does not attempt to escape.

• Persons hors de combat shall be protected and treated humanely without any
adverse distinction. Their right to life and physical and moral integrity shall be
respected.

6.3 Protected Persons

• They are those who enjoy or are entitled to protection under the geneva
conventions. Categories of protected persons include:
(1) The wounded, the sick, and shipwrecked;
(2) Prisoners of war;
(3) Civilians.

6.4 Civilians
• For purposes of protection, civilians are further classified as:
(1) Civilians who are victims of conflict in countries involved;
(2) Civilians in territories of the enemy;
(3) Civilians in occupied territories;
(4) Civilians internees.
 6.5 Prisoners of War
• Under Article 4, Geneva Convention (III), prisoners of war are persons
belonging to one of the following categories:

(1) Members of the armed forces of a party to the conflict, including militias or
volunteer corps;
(2) Militias or volunteer corps operating in or outside their own territory, even if
such territory is occupied provided:
(3) They are being commanded by a person responsible for his subordinates;
(4) Have a fixed distinctive sign recognizable at a distance;
(5) Carries arms openly;
(6) Conducts their operations in accordance with the laws and customs of war;
(7) Members of regular armed forces who profess allegiance to a government or
authority not recognized by the detaining power;
(8) Civilians who accompany the armed forces, provided that they have received
authorization from the armed forces which they accompany;
(9) Members of crews of merchant marine and the crews of civil aircraft of the
parties to the conflict;
(10) Inhabitants of a non-occupied territory who on the approach of the enemy
spontaneously take up arms to resist the invading forces, without having had
time to form themselves into regular armed units, provided they carry arms
openly and respect the laws and customs of war;
(11) Persons belonging to the armed forces of the occupied territory

Rights and privileges

(1) They must be treated humanely, shall not be subjected to physical or
mental torture, shall be allowed to communicate with their families, and
may receive food, clothing, educational and religious articles.
(2) They may not be forced to reveal military data except their name, rank,
serial number, army and regimental number and date of birth. They
may not be compelled to work for military services.
(3) All their personal belonging except their arms and military papers
remain their property.
(4) They must be interned in a healthful and hygienic place.
(5) After the conclusion of peace, their speedy repatriation must be
accomplished as soon as is practicable. Martens clause/principle of
humanity In cases not covered by other international agreements,
civilians and combatants remain under the protection and authority of
the principles of international law derived from established custom,
from the principles
Martens clause/principle of humanity
o In cases not covered by other international agreements, civilians and combatants remain
under the protection and authority of the principles of international law derived from
established custom, from the principles of humanity and from the dictates of public
conscience.

7. Law of Neutrality
• It is the law governing a country’s abstention from participating in a conflict or
aiding a participant of such conflict, and the duty of participants to refrain from
 violating the territory, seizing the possession, or hampering the peaceful
commerce of the neutral countries (The Three Friends, 166 U.S. 1).
• Neutrality is the legal status of a State in times of war, by which it adopts
impartiality in relation to the belligerents with their recognition.

Neutral power
The Hague Convention Respecting the Rights and Duties of Neutral Powers
(1907) governs the status of neutrality by the following rules:
(1) The territory of the neutral power is inviolable.
(2) Belligerents are forbidden to move troops or munitions of war and
supplies across the territory of a neutral power.
(3) A neutral power is forbidden to allow belligerents to use its territory for
moving troops, establishing communication facilities, or forming corps of
combatants.
(4) Troops of belligerent armies received by a neutral power in its territory
shall be interned by away from the theatre of war.
(5) The neutral power may supply them with food, clothing or relief required
by humanity.
(6) If the neutral power receives escaped prisoners of war, it shall leave
them at liberty. It may assign them a place of residence if it allows them
to remain in its territory.
(7) The neutral power may authorize the passage into its territory of the sick
and wounded if the means of transport bringing them does not carry
personnel or materials of war.

• The Geneva Convention (III) allows neutral powers to cooperate with the parties to
the armed conflict in making arrangements for the accommodation in the former’s
territory of the sick and wounded prisoners of war.
• Interned persons among the civilian population, in particular the children, the
pregnant women, the mothers with infants and young children, wounded and sick,
may be accommodated in a neutral state in the course of hostilities, by agreement
between the parties to the conflict.

Protecting power
A protecting power is a state or an organization:
(1) Not taking part in the hostilities;
(2) Which may be a neutral state;
(3) Designated by one party to an armed conflict with the consent of the other;
(4) To safeguard or protect its humanitarian interests in the conflict, the
performance of which IHL defines specific rights and duties.

L. LAW OF THE SEA

1. Definition
• The United Nations Convention on Law of the Sea (UNCLOS) is the body of
treaty rules and customary norms governing the use of the sea, the
exploitation of its resources, and the exercise of jurisdiction over maritime
regimes (Magallona).
 • It is the branch of public international law which regulates the relations of
states with respect to the use of the oceans.

2. Baselines
• A baseline is the line from which a breadth of the territorial sea and other
maritime zones, such as the contiguous zone and the exclusive economic
zone is measured. Its purpose is to determine the starting point to begin
measuring maritime zones boundary of the coastal state.
• There are two kinds of baselines:
(1) Normal baseline, where the territorial sea is the low-water line along
the coast as marked on large-scale charts officially recognized by the
coastal state [Article 5, UNCLOS].
(2) Straight baseline, where the coastline is deeply indented or cut into,
or if there is a fringe of islands along the coast in its immediate
vicinity, the method of straight lines joining the appropriate points may
be employed in drawing the baseline from which the breadth of the
territorial sea is measured [Article 7, UNCLOS].
3. Archipelagic States
• It is a state made up of wholly one or more archipelagos. It may include other
islands [Article 46, UNCLOS].
• An archipelago is a group of islands, including parts of islands,
interconnecting waters and other natural features which are so closely related
that such islands, waters and natural features form an intrinsic geographical,
economic and political entity, or which historically have been regarded as
such.
• There are two kinds of archipelagos:
(1) Coastal, situated close to a mainland and may be considered part
thereof (i.e., Norway);
(2) Mid-Ocean, situated in the ocean at such distance from the coasts of
firm land, (i.e., Indonesia).
• The archipelagic state provisions apply only to mid-ocean archipelagos
composed of islands, and not to a partly continental state.

3.1 Straight Archipelagic Baselines

• Straight baselines join the outermost points of the outermost islands and
drying reefs of an archipelago, provided that within such baselines are
included the main islands and an area in which the ratio of the water to the
area of the land, including atolls, is between 1 to 1 and 9 to 1. Such are called
straight archipelagic baselines.
• The breadth of the territorial sea, the contiguous zone, and the exclusive
economic zone is measured from the straight archipelagic baselines.
Island and Rocks; Distinguished
• An island is a naturally formed area of land, surrounded by water, which is
above water at high tide.
• Rocks which cannot sustain human habitation or economic life of their own
shall have no exclusive economic zone or continental shelf. [Article 121,
UNCLOS]
 3.2 Archipelagic Waters
• These are the waters enclosed by the straight archipelagic baselines,
regardless of their depth or distance from the coast [Art 49(1), UNCLOS].
• They are subject to the sovereignty of the archipelagic state, but subject to
the right of innocent passage for the ships of all states.

3.3 Archipelagic Sea Lanes Passage

• It is the right of foreign ships and aircraft to have continuous, expeditious and
unobstructed passage in sea lanes and air routes through or over the
archipelagic waters and the adjacent territorial sea of the archipelagic state,
“in transit between one part of the high seas or an exclusive economic zone.”
All ships and aircraft are entitled to the right of archipelagic sea lanes
passage [Magallona; Article 53(1) in relation to Article 53(3) UNCLOS].
• The archipelagic state designates the sea lanes as proposals to the
“competent international organization.” It is the International Marine
Organization (IMO) which adopts them through Article 53(9), UNCLOS, which
states that “the Organization may adopt only sea lanes and traffic separation
schemes as may be agreed with the archipelagic state, after which such state
may designate, prescribe or substitute them.”

3.4 Other Rights Relating to Archipelagic Waters

(1) Rights under existing agreement on the part of third states should be
respected by the archipelagic state.
(2) Within its archipelagic waters, the archipelagic state shall recognize
traditional fishing rights and other legitimate activities of immediately
adjacent neighboring states.
(3) The archipelagic state shall respect existing submarine cables laid by other
states and “passing through its waters without making a landfall.”
• Under Article 1 of the 1987 Constitution, the archipelagic waters of
the Philippines are characterized as forming part of “the internal
waters of the Philippines.” However, under the UNCLOS,
archipelagic waters consist mainly of the “waters around, between,
and connecting the islands of the archipelago, regardless of breadth
or dimension.”
• Also, under Article 47, UNCLOS, it is not mandatory upon concerned
states to declare themselves as archipelagic states; the Philippines
did, under its new baselines law, RA 9522 upheld as constitutional
[Magallona v. Executive Secretary (2011)].

4. International Waters
• These are waters of lakes, rivers, and bays landward of the baseline of the
territorial sea. Waters on the landward side of the baseline of the territorial
sea also form part of the internal waters of the coastal state. However, in case
of archipelagic states, waters landward of the baseline other than those
rivers, bays and lakes, are archipelagic waters [Article 8(1), UNCLOS.
• Internal waters are treated as part of a state’s land territory, and are subject to
the full exercise of sovereignty. Thus, the coastal state may designate which
waters to open and which to close to foreign shipping.
5. Territorial Sea
• These waters stretch up to 12 miles from the baseline on the seaward
direction. They are subject to the jurisdiction of the coastal state, which
jurisdiction almost approximates that which is exercised over land territory,
except that the coastal state must respect the rights to:
(1) Innocent passage; and
(2) In the case of certain straits, to transit passage.
• Innocent passage refers tonavigation through the territorial sea without
entering internal waters, going to internal waters, or coming from internal
waters and making for the high seas. It must:
(1) Involve only acts that are required by navigation or by distress, and
(2) Not prejudice the peace, security, or good order of the coastal state.
• Transit passage refers to the right to exercise freedom of navigation and over
flight solely for the purpose of continuous and expeditious transit through the
straights used for international navigation. The right cannot be unilaterally
suspended by the coastal state.

6. Contiguous Zone
6.1 Definition
• The contiguous zone is that which is contiguous to its territorial sea. It may
not extend beyond 24 nautical miles from the baselines from which the
breadth of the territorial sea is measured.
6.2 Jurisdiction Over Contiguous Zone
• In a contiguous zone, the coastal State may exercise the control necessary
to:

(1) Prevent infringement of its customs, fiscal, immigration or sanitary

laws and regulations within its territory or territorial sea;
(2) Punish infringement of the above laws and regulations committed
within its territory or territorial sea.

7. Exclusive Economic Zone

7.1 Definition
• The exclusive economic zone (EEZ) is the stretch of area up to 200 miles
from the baselines. Within this zone, a State may regulate non-living and
living resources, other economic resources, artificial installations, scientific
research, and pollution control.

7.2 Jurisdiction Over EEZ

• The UNCLOS gives the coastal State sovereign rights over all economic
resources of the sea, seabed and subsoil in an area extending not more than
200 nautical miles beyond the baseline from which the territorial sea is
measured (Arts. 55 and 57, UNCLOS). Under the UNCLOS, states have the
sovereign right to exploit the resources of this zone, but shall share that part
of the catch that is beyond its capacity to harvest. The resources covered
include living and nonliving resourcesin the waters of the seabed and its
subsoil.
8. Continental Shelf

8.1 Extended Continental Shelf

• It is the seabed and subsoil of the submarine areas extending beyond the
territorial sea of the coastal state throughout the natural prolongation of its
lands territory up to:
(1) The outer edge of the continental margin; or
(2) A distance of 200 nautical miles from the baselines of the territorial
sea where the outer edge of the continental margin does not extend
up to that distance.
• Continental margin the submerged prolongation of the land mass of the
continental state, consisting of the continental shelf proper, the continental
slope, and the continental rise

8.2 Limits of the Continental Shelf

• The juridical or legal continental shelf covers the area until 200 nautical miles
from baselines.
• The extended continental shelf covers the area from the 200-mile mark to 350
nautical miles from the baselines depending on geomorphologic or geological
data and information.
• When the continental shelf extends beyond 200 nautical miles, the coastal
state shall establish its outer limits.
• At any rate, the continental shelf shall not extend beyond 350 nautical miles
from the baseline of the territorial sea, or 100 nautical miles from the 2500-
meter isobath (i.e., the point where the waters are 2500 meters deep).

8.3 Rights of the Coastal State

• The continental shelf does not form part of the territory of the coastal state.
• It only has sovereign rights with respect to the exploration and exploitation of
its natural resources, including the mineral and other non-living resources of
the seabed and subsoil together with living organisms belonging to the
sedentary species.
• The coastal state has the exclusive right to authorize and regulate oil-drilling
on its continental shelf.
• These rights are exclusive in the sense that when the coastal state does not
explore its continental shelf or exploit its resources, no one may undertake
these activities without the coastal state’s consent.

Continental Shelf Exclusive Economic Zone

Duty to manage and conserve living resources
o No duty o Coastal state is obliged to
manage and conserve living
resources in the EEZ
Rights of the coastal state to natural resources
o Relate to mineral and other non- o Have to do with natural
living resources of the seabed resources of both waters super
and the subsoil adjacent to the seabed and
those of the seabed and subsoil
Rights of the coastal state to living resources
o Apply only to sedentary species o Do not pertain to sedentary
of such living resources species
9. The Area
9.1 Definition
• "Area" means the seabed and ocean floor and subsoil thereof, beyond the
limits of national jurisdiction.

9.2 Legal Status of the Area and its Resources

• No State shall claim or exercise sovereignty or sovereign rights over any part
of the Area or its resources, nor shall any State or natural or juridical person
appropriate any part thereof. [Article 137, UNCLOS]
• The Area and its resources are the common heritage of mankind. [Article 136,
UNCLOS] Activities in the Area shall be carried out for the benefit of mankind
as a whole. [Article 140, UNCLOS]
• The Area shall be open to use exclusively for peaceful purposes by all States.
[Article 141, UNCLOS]

9.3 International Seabed Authority

• It is the organization established by UNCLOS which acts on behalf of
mankind in governing the regime of resources in the Area. It organizes,
carries out and controls the activities of the Area on behalf of mankind as a
whole.

• The following form the Authority:

(1) The Assembly – all state parties to the UNCLOS
(2) The Council – the executive organ whose 36 members are elected by
the Assembly
(3) The Enterprise – the organ directly engaged in the exploration and
exploitation of the resources of the Area, including the transporting,
processing and marketing of minerals

9.4 Activities in the Area

• The Enterprise carries out mining activities on behalf of the Authority:
(1) Directly; or
(2) By joint ventures with: a. State parties; b. State enterprises; or c.
Natural or juridical persons sponsored by state parties.

• Applicants for license in deep seabed mining are limited to those controlled by
states parties to the UNCLOS or by their nationals.

10. International Tribunal for the Law of the Sea (ITLOS)

10.1 Definition
• The ITLOS is an independent judicial body established by the Third United
Nations Convention on the Law of the Sea to adjudicate disputes arising out
of the interpretation and application of the convention. It was established after
Ambassador Arvido Pardo Malta addressed the General Assembly of the
United Nations and called for “an effective international regime over the
seabed and ocean floor beyond a clearly defined national jurisdiction.”
 10.2 Jurisdiction of the ITLOS
• Its jurisdiction covers all disputes submitted to it in accordance with the
UNCLOS. It also includes matters submitted to it under any other agreement.
• It is composed of 21 independent members elected from among persons
enjoying the highest reputation for fairness and integrity and of recognized
competence in the field of the law of the sea.

10.3 Peaceful Settlement of Disputes

• Under Article 2, 3rd par., UN Charter, states have the duty to settle disputes
by peaceful means. This obligation extends to state parties of the UNCLOS,
underscoring the right of the parties to resort to peaceful means of their own
choice on which they can agree any time.

10.4 Compulsory Settlement of Disputes

• Where no successful settlement can be achieved, or if the parties are unable
to agree on the means of settlement of a dispute concerning the application of
UNCLOS, such dispute may be governed by the principle of compulsory
settlement, where procedures entail binding decisions.
• The parties may choose, through a written revocable and replaceable
declaration, to submit the dispute to:
(1) ITLOS;
(2) ICJ;
(3) Arbitral tribunal;
(4) Special arbitral tribunal.
• The court or tribunal has jurisdiction over:
(1) Any dispute submitted to it concerning the application or interpretation
of UNCLOS; or
(2) Any dispute concerning the interpretation or application of an
international agreement:
o Related to the purposes of the UNCLOS;
o When such dispute is submitted to it in accordance with that
agreement.

10.5 Applicable Laws

• The court or tribunal shall apply the UNCLOS and other rules of international
law not incompatible with the UNCLOS (UNCLOS, article 293). It may also
decide a case ex aequoet bono (what is equitable and just) if the parties so
agree.

Assessment No. 5
1. What is Territorial Sea?
2. What do you understand by the term “Internal Waters”?
3. What is the Sovereign Rights of the Nation over the Territorial Sea?
4. What is Exclusive Economic Zone?
 DISCUSSION
M. MADRID PROTOCOL AND PARIS CONVENTION
1. Madrid Protocol
• The Protocol Relating to the Madrid Agreement Concerning the
International Registration of Marks, or The Madrid Protocol is one of two
treaties comprising the Madrid System for international registration of
trademarks and it deals more with the procedure for filing than with
substantive rights.
• Its purpose is to provide a cost-effective and efficient way for trademark
holders – individuals and businesses – to ensure protection for their marks in
multiple countries through the filing of one application with a single office, in
one language, with one set of fees, in one currency.
• While an International Registration may be issued, it remains the right of each
country or contracting party designated for protection to determine whether or
not protection for a mark may be granted. Once the trademark office in a
designated country grants protection, the mark is protected in that country just
as if that office had registered it.
• The Madrid Protocol also simplifies the subsequent management of the mark,
since a simple, single procedural step serves to record subsequent changes
in ownership or in the name or address of the holder with World Intellectual
Property Organization’s International Bureau. The International Bureau
administers the Madrid System and coordinates the transmittal of requests for
protection, renewals and other relevant documentation to all members.

2. Paris Convention
• The Paris Convention for the Protection of Industrial Property was
signed in 1883 and it is one of the first treaties dealing with intellectual
property and its protection.
• Among its substantive provisions are:
(1) It requires that each member state grant the same quality and
quantity of protection to eligible foreigners as it grants to its own
nationals in respect to the intellectual property enumerated in the
convention.
(2) It provides that an applicant eligible for convention benefits who files
a first regular patent or trademark application in any of the countries
of the union, can then file subsequent applications in other countries
of the union for a defined period of time which subsequent
applications will have an effective filing date as of the first filed
application.

N. INTERNATIONAL ENVIRONMENTAL LAW

1. Definition
• It is the branch of public international law comprising those substantive,
procedural, and institutional rules which have as their primary objective the
protection of the environment, the term environment being understood as
encompassing “both the features and the products of the natural world and
 those of human civilization” (Sands, Principles of International Environmental
Law).

2. Basic Principles
2.1 PRINCIPLE OF COMMON BUT DIFFERENTIATED RESPONSIBILITY
• States shall cooperate in a spirit of global partnership to conserve, protect
and restore the health and integrity of the earth’s ecosystem. In view of the
different contributions to global environmental degradation, States have
common but differentiated responsibilities. The developed countries
acknowledge the responsibility that they bear in the international pursuit to
sustainable development in view of the pressures their societies place on the
global environment and of the technologies and financial resources they
command (Principle 7, Rio Declaration).

2.2 PRECAUTIONARY PRINCIPLE

• In order to protect the environment, the precautionary approach shall be
widely applied by States according to their capabilities. Where there are
threats of serious or irreversible damage, lack of full scientific certainty shall
not be used as a reason for postponing cost-effective measures to prevent
environmental degradation (Principle 15, Rio Declaration).

2.3 SUSTAINABLE DEVELOPMENT

• It is development that meets the needs of the present without compromising
the ability of future generations to meet their own needs (Case Concerning
the Gabcikovo-Nagymaros Project (1997)).
• No state has the right to use or permit the use of its territory in such a
manner as to cause injury by fumes in or to the territory of another or the
properties or persons therein, when the case is of serious consequence and
the injury is established by clear and convincing evidence (US v. Canada
(Trail Smelter Case) (1938)).

2.4 SIC UTERE TUO UT ALIENUM NON LAEDAS (PRINCIPLE 21 OF THE

STOCKHOLM DECLARATION)
• The Stockholm Declaration, or the Declaration of the United Nations
Conference on the Human Environment, was adopted on June 16, 1972
in Stockholm, Sweden. It contains 26 principles and 109 recommendations
regarding the preservation and enhancement of the right to a healthy
environment.
• Principle 21 provides: “States have, in accordance with the Charter of the
United Nations and the principles of international law, the sovereign right to
exploit their own resources pursuant to their own environmental policies, and
the responsibility to ensure that activities within their jurisdiction or control do
not cause damage to the environment of other States or of areas beyond the
limits of national jurisdiction.”
O. INTERNATIONAL ECONOMIC LAW

• International economic law regulates the international economic order or economic

relations among nations. However, the term “international economic law”
encompasses a large number of areas. It is often defined broadly to include a vast
array of topics ranging from public international law of trade to private international
 law of trade to certain aspects of international commercial law and the law of
international finance and investment.
• It is a field of international law that encompasses both the conduct of sovereign
states in international economic relations, and the conduct of private parties involved
in cross-border economic and business transactions.
• International economic law covers, among others, the following:
(1) International trade law, including both the international law of the World Trade
Organization and GATT and domestic trade laws;
(2) International economic integration law, including the law of the European
Union, NAFTA and Mercosur;
(3) Private international law, including international choice of law, choice of
forum, enforcement of judgments and the law of international commerce;
(4) International business regulation, including antitrust or competition law,
environmental regulation and product safety regulation;
(5) International financial law, including private transactional law, regulatory law,
the law of foreign direct investment and international monetary law, including
the law of the International Monetary Fund and World Bank;
(6) The role of law in development;
(7) International tax law; and
(8) International intellectual property law (Wenger).
• International economic law is based on the traditional principles of international law
such as:
(1) Pactasuntservanda;
(2) Freedom;
(3) Sovereign equality;
(4) Reciprocity;
(5) Economic sovereignty.
• It is also based on modern and evolving principles such as:
(1) Duty to cooperate;
(2) Permanent sovereignty over natural resources;
(3) Preferential treatment for developing countries in general and the least-
developed countries in particular.

Assessment No. 6
1. What is the subject matter of International Economic Law?
2. What is the relationship between Economics and Law?
3. What are the sources of International Economic Law?
4. How are Economic Laws formulated?
References:
JOAQUIN G. BERNAS, S.J, Introduction to Public International Law, Ateneo de Manila
University, Loyola Heights, Quezon City, Philippines.
Magallona, Merlin M. “Fundamentals of Public International Law”
Santiago, Miriam Defensor “International Law with Philippine Cases and Materials and
ASEAN Instruments ”