PUBLIC INTERNATIONAL LAW NOTES

By: Evelyn De Matias

COURSE OUTLINE

I. PRELIMINARY CONSIDERATIONS

A. Brief history of Public International Law

B. Definition of International Law

- body of rules & principles which are recognized as legally binding and governs the
relations of states and other entities with one another (as between international organizations,
between international organizations and states, between international organizations and states
and the people).

C. Functions of International Law

1. defines the existence of states

2. provides framework of diplomatic relations
3. governs international agreements
4. sets forth rules for international commerce
5. governs individual human rights
6. regulates protection of the global environment (air, land, sea and global resources)
7. VITAL FUNCTION: eliminates elements of unlawful force in the solution of human conflicts
and provides basis for the orderly management of international relations; social progress

D. Foundations of International Law

1. Principle of comity
2. Principle of reciprocity/mutuality
3. Principle of independence
4. Principle of equality of states
E. Theories About International Law

1. Natural Law School

- there are certain normative principles that are true or self evident and which exists
independently of their codification or enforcement by human beings.
- naturalists maintain that the law of nations is binding upon states because it is a branch
of great law of nature, the sum of those principles which ought to control human conduct, being
founded on the very nature of man as a rational and social being.

2. Positivist School
 - the basis of obligation of international law is founded in the CONSENT OF STATES.
- This school of thoughts provides that consent of states is given:

a. Tacitly in case of customary international law

b. Expressly in case of conventional law
c. Presumed in case of General Law of Nations

3. Eclectic/Groatian School

- occupy middle position between the natural and positivist school

- recognizes that international law is in part a product of natural law and at the same time
the positive consent of states to be bound by its rules.

F. Basis of International Law/Schools or Theories in the Study of International Law

The schools of study of international law are the basis of the obligation in international
law.

G. Theories as to the Basis of International Law

1. Direct Consent

- international law is based upon the direct consent of States upon their individual
acceptance of its principles and rules.

2. Implied Consent

- a fiction to account for the acceptance of the great body of general principles and specific rules
that had come to form the body of customary law.

3. Mutuality of Interest

- international law is a subjective law; its binding force depends upon mutuality of interest which
could only be maintained by altering from time to time such rules as it might be no longer to the
interest of the parties to observe.

4. Necessity

- the fact that nations have common interest constitutes the actual community of states and at the
same time imperatively demands a rule of law so that international law may be said to be based
upon the very necessity for its existence.

H. Two Main Branches of International Law

1. Public International Law (Law of Nations)

2. Private International Law (Conflicts of Law)
I. Branches of International Law

1. Human rights law

2. Humanitarian law
3. Refugee law
4. Criminal law
5. Economic law
6. Environmental law

J. General Classifications of Public International Law

1. Consular law
2. Diplomatic law
3. International Aviation law
4. International criminal law
5. International environmental law
6. International human right law
7. International humanitarian law
8. International space law
9. International trade law
10. law of state responsibility
11. Rules according to higher law
12. UN Conventions on the law of the Sea
13. Use of force continuum

K. Public International Law vs Private International Law

Public International Law (Law of Nations)

- regulates the relationship between states and international entities

- concerned with questions of rights between nations.

Private International Law (Conflicts of Law)

- regulates comity of states in giving effect in one to the municipal laws of another
relating to private persons.
- PRINCIPLE: One country gives respect and give effect to the laws of another so
far as can be done consistently with its own interest.

L. Is International Law a True Law?

- based on popular views it is not a true law because:

law of nation lacks the equality of positive authority or command.
no legal duty/obligation of obedience on the part of those whom it is
addressed with no courts to interpret and enforce international law.
 no penalty prescribed for disobedience with lack of physical power to
enforce obedience.

- International law is recognized as law of practice

sanctions for failure to comply though indirect is similar to municipal
law.
includes force of public opinion, self help, intervention by third party
states, sanctions of international organizations such as the UN and as a
last resort WAR.

M. Classification of International Law

1. Customary
2. Conventional
3. General International Law

N. Public International Law vs Municipal Law

PUBLIC INTERNATIONAL LAW MUNICIPAL LAW

- deals with states relations
- sources are customs and treaties
- law is not a law above but between
sovereign states
- laws not codified except on particular
subjects
- penalty/sanction is addressed by pressure
put upon a state to behave in good faith,
diplomacy, retaliations or severance of
economic ties, war as an act of self defense
(as recognized by the UN). Only strong
countries may impose these sanctions to
weak countries in reality.
- deals with internal affairs of a state
- sources are customs and precedents
grown within the states jurisdiction and
legislation enacted by its law making body.
- law of sovereign over individuals subject
to state authority.
- laws are codified
- penalty may be in the form of
imprisonment (in violation of the penal
code) or sanctions of damages and
administrative sanctions.

* In International Tribunal the international law will prevail over Municipal law.

** In a municipal tribunal, one must distinguish if conflicts involve international law and
foreign international law in which case international law prevails;

** Municipal law prevails if conflicts involve conflicts between municipal law and
international law.

O. Relation Between International Law & Municipal Law

 1. Monism

- views international law and national law as part of single legal system with domestic
law derived from the broader framework provided by international law.

2. Dualism

- considers international law and internal law of states as wholly separate legal systems,
the former creating obligations only among sovereign nations and the latter allowing each state
to determine the means and form by which it carries our its obligations.

P. Relation between Public International law and Philippine Municipal Law

Q. Conflicts between Public International Law and Municipal Law

- Municipal law, when in conflict with PIL is given effect in municipal courts, the reason
being that such courts are organs of municipal law and are accordingly bound by it in all
circumstances.
- the fact that international law has been made part of the law of the land does not mean
to imply it is primary over national or municipal law.
- in Doctrine of Incorporation, PIL is given standing equal but not superior to national
legislative enactments.

PRINCIPLES AND DOCTRINES:

DOCTRINE OF TRANSFORMATION

- requires legislative action to make the treaty enforceable in the municipal sphere.
- Municipality law expressly adopts an international law thru an act of legislation.
- The doctrine observed in treaties

DOCTRINE OF INCORPORATION

- Considers rules of international law as forming part of the law of the land and no further
legislative action is needed to make such rules applicable in the domestic sphere.
- the doctrine observed in customary international law.

ADOPTION DOCTRINE

- Municipality law impliedly adopts an international law.

HARMONIZATION DOCTRINE

-International law is applied only when appropriate.

 RESTRICTED AUTOMATIC DOCTRINE

- Based on Article 2, section 2 of Constitutional provision in the Philippines, Philippines

adopts the generally accepted principles of international law as part of the law of the land. It
stresses the automatic adoption of international law but involves restriction that such
automatic adoption of international law is only as to generally accepted principles of
international law.

R. Conflict between a Treaty and a Constitution

- in states where Constitution is the highest law of the land, both statutes and treaties may be
invalidated if they are in conflict with the Constitution.
- In the Philippines, the Supreme Court may declare a treaty unconstitutional if it is in conflict
with the Constitution.

S. Structure of Public International law

1. Law of Treaties and other international agreements

2. Law on Armed Conflicts
3. Rubrics of international delinquencies or torts
4. International responsibilities of States

T. the Role of Public International Law

U. World Politics

V. Related Cases

i. The Interhandel Case (Decision of the International Court of Justice, March 21, 1949)

ii. Kuroda v Jalandoni, 83 Phil 171

Facts

Shinegori Kuroda, a former Lieutenant-General of the Japanese Imperial Army and

Commanding General of the Japanese Imperial Forces in the Philippines was charged before the
Philippine Military Commission for war crimes. As he was the commanding general during such
period of war, he was tried for failure to discharge his duties and permitting the brutal atrocities
and other high crimes committed by his men against noncombatant civilians and prisoners of the
Japanese forces, in violation of of the laws and customs of war.

Kuroda, in his petition, argues that the Military Commission is not a valid court because the law
that created it, Executive Order No. 68, is unconstitutional. He further contends that using as
basis the Hague Conventions Rules and Regulations covering Land Warfare for the war crime
committed cannot stand ground as the Philippines was not a signatory of such rules in such
 convention. Furthermore, he alleges that the United States is not a party of interest in the case
and that the two US prosecutors cannot practice law in the Philippines.

Issue

1.Whether or not Executive Order No. 68 is constitutional

2.Whether or not the US is a party of interest to this case
3.Whether or not Atty. Melville S. Hussey and Robert Port is allowed to practice law profession
in the philippines.

Ruling

The Supreme Court ruled that Executive Order No. 68, creating the National War Crimes Office
and prescribing rules on the trial of accused war criminals, is constitutional as it is aligned with
Sec 3,Article 2 of the Constitution which states that The Philippines renounces war as an
instrument of national policy and adopts the generally accepted principles of international law as
part of the law of the nation. The generally accepted principles of international law includes
those formed during the Hague Convention, the Geneva Convention and other international
jurisprudence established by United Nations. These include the principle that all persons,
military or civilian, who have been guilty of planning, preparing or waging a war of aggression
and of the commission of crimes and offenses in violation of laws and customs of war, are to be
held accountable. In the doctrine of incorporation, the Philippines abides by these principles and
therefore has a right to try persons that commit such crimes and most especially when it is
committed againsts its citizens. It abides with it even if it was not a signatory to these
conventions by the mere incorporation of such principles in the constitution.

The United States is a party of interest because the country and its people have been equally, if
not more greatly, aggrieved by the crimes with which the petitioner is charged for. By virtue of
Executive Order No. 68, the Military Commission is a special military tribunal and that the rules
as to parties and representation are not governed by the rules of court but by the very provisions
of this special law.

On the 3rd issue, the court ruled that the appointment of the two American attorneys is not
violative of our national sovereignty. It is only fair and proper that the U.S. which has submitted
the vindication of crimes against her government and her people to a tribunal of our nation
should be allowed representation in the trial of those very crimes. The lest that we could do in
the spirit of comity is to allow this representation in said trial.

iii. Ichong v Hernandez, May 31, 1957

Facts: RA 1180 An Act to Regulate The Retail Business prohibits foreigners and foreign
owned corporations to engage in the retail business/trade in the Philippines. Petitioner assails the
Act contending it violates the Treaty of Amity between the Philippines and China and is
unconstitutional.

Issue: Whether or not RA 1180 a valid exercise of police power of the State.
 Held: The court held that RA 1180 is a valid exercise of the police power of the State since such
sovereign power of the State could not be bargained through any Treaty or contract especially
when the intent of such legislation is to remedy a real and actual danger to the national economy
due to the increasing dominance and control of aliens in the retail trade in the country.

iv. Phil. Association of Free Labor Unions (PAFLU) et al. v Secretary of Labor et al.,
February 27, 1969

v. Paquete Habana case, 125 US 677 (1900)

Paquete Habana.; The Lola, 175 U.S. 677 (1900), was a landmark United States Supreme Court
case that reversed an earlier court decision allowing the capture of fishing vessels under Prize
(law). Its importance rests on the fact that it integrated Customary international law with
American law, perhaps the quintessential position of those who hold a monist perspective of
international law.

Background of the case

In April 1898 two fishing vessels, the Paquete Habana, and the Lola separately left Cuban ports
in Havana in order to fish. The two vessels were eventually captured by US Naval vessels as part
of Admiral William T. Sampson's blockade of Cuba, who was ordered to execute the blockade
'in pursuance of the laws of the United States, and the law of nations applicable to such cases.'
The vessels were placed within Cuba's territorial waters at the onset of the Spanish-American
War and then taken to Key West, where both vessels were eventually auctioned by the district
court.
Admiral Sampson justified the seizures by stating that most fishing vessels, flying under the
Spanish banner were manned by excellent seamen, "liable for further service" as naval reserves,
an asset that could eventually be used against US interests in the Spanish-American War.
The owners of the vessels however made an appeal to the circuit courts, citing a long held
tradition by nations of exempting fishing vessels from prize capture in times of war. This
"tradition", a primary example of customary international law, dates back from an order by
Henry IV in 1403, and has more or less been observed by a large majority of States ever since.
At the time of capture both vessels had no evidence of aiding the enemy, and were unaware of
the US naval blockade. No arms were found on board, and no attempts were made to either run
the blockade or resist capture.

The court's decision

The United Supreme Court, which cited lengthy legal precedents established to support the
existence of a customary international law that exempted fishing vessels from prize capture
eventually found the capture of both vessels as "unlawful and without probable cause", reversed
the District Court's decision, and ordered the proceeds of the auction as well as any profits made
from her cargo to be restored to the claimant, "with damages and costs".

vi. Mejoff v Director of Prisons 90 PHIL 70 (1951)

Facts:

This is a second petition for habeas corpus by Boris Mejoff, the first having been denied in a
decision of this Court on July 30, 1949. "The petitioner Boris Mejoff is an alien of Russian
descent who was brought to this country from Shanghai as a secret operative by the Japanese
forces during the latter's regime in these Islands. Upon liberation, he was arrested as a Japanese
spy by U. S. Army Counter Intelligence Corps. Thereafter, the People's Court ordered his
release. But the Deportation Board taking his case up found that having no travel documents,
Mejoff was an illegal alien in this country, and consequently referred the matter to the
immigration authorities. After the corresponding investigation, the Immigration Board of
Commissioners declared on April 5, 1948 that Mejoff had entered the Philippines illegally in
1944, without inspection and admission by the immigration officials at a designated port of entry
and, therefore, it ordered that he be deported on the first available transportation to Russia. The
petitioner was then under custody, he having been arrested on March 18, 1948. In October 1948,
after repeated failures to ship this deportee abroad, the authorities moved him to Bilibid Prison at
Muntinglupa where he has been confined up to the present time, inasmuch as the Commissioner
of Immigration believes it is for the best interests of the country to keep him under detention
while arrangements for his departure are being made. Two years having elapsed since the
aforesaid decision was promulgated, the Government has not found ways and means of removing
the petitioner out of the country, and none are in sight, although, it should be said in fairness to
the deportation authorities that it was through no fault of theirs that no ship or country would
take the petitioner.

Issue:

Whether or not Boris Mejoff should be released from prison pending his deportation.

Ruling:

The protection against deprivation of liberty without due process of law, and except for crimes
committed against the laws of the land, is not limited to Philippine citizens but extends to all
residents, except enemy aliens, regardless of nationality. Moreover, Sec. 3, Art. II of the
Constitution of the Philippines "adopts the generally accepted principles of international law as
part of the law of the Nation." And in a resolution entitled, "Universal Declaration Of Human
Rights," and approved by the General Assembly of the United Nations, of which the Philippines
is a member, at its plenary meeting on December 10, 1948, the right to life and liberty and all
other fundamental rights as applied to all human beings were proclaimed. It was there resolved
that "all human beings are born free and equal in degree and rights" (Art. 1); that "everyone is
entitled to all the rights and freedom set forth in this Declaration, without distinction of any kind,
such as race, colour, sex, language, religion, political or other opinion, nationality or social
origin, property, birth, or other status" (Art. 2); that "every one has the right to an effective
remedy by the competent national tribunals for acts violating the fundamental rights granted him
by the Constitution or by law" (Art. 8); that "no one shall be subjected to arbitrary arrest,
detention or exile" (Art. 9 ); etc. Premises considered, the writ will issue commanding the
respondents to release the petitioner from custody upon these terms: that the petitioner shall be
 placed under the surveillance of the immigration authorities or their agents in such form and
manner as may be deemed adequate to insure that he keep peace and be available when the
Government is ready to deport him. The surveillance shall be reasonable and the question of
reasonableness shall be submitted to this Court or to the Court of First Instance of Manila for
decision in case of abuse. No costs will be charged.

source: http://rabbit-icecold.blogspot.com/

vii. Reyes v Bagatsing GR no. 65366, October 25, 1983

Facts
Retired Justice Jose B.L. Reyes, in behalf of the Anti-Bases Coalition, sought for a permit from
the City of Manila to hold a peaceful march and rally on October 26, 1983 starting from Luneta
to the gates of the United States embassy. The objective of the rally was to peacefully protest the
removal of all foreign military bases and to present a petition containing such to a representative
of the Embassy so it may be delivered to the United States Ambassador. This petition was to
initially compel the Mayor of the City of Manila to make a decision on the application for a
permit but it was discovered that a denial has already been sent through mail. It also included a
provision that if it be held somewhere else, permit may be issued. The respondent mayor alleges
that holding the rally in front of the US Embassy is a violation of the resolutions during the
Vienna Convention on Diplomatic Relations adopted in 1961 and of which the Philippines is a
signatory. In the doctrine of incorporation, the Philippines has to comply with such generally
accepted principles of international law as part of the law of the land. The petitioner, on the other
hand, contends that the denial of the permit is a violation of the constitutional right of the
freedom of speech and expression.

Issue
Whether or not the Anti-Bases Coalition should be allowed to hold a peaceful protest rally in
front of the US Embassy

Ruling
The Supreme Court ruled to allow the rally in front of the US Embassy to protect the exercise of
the rights to free speech and peaceful assembly and on the ground that there was no showing of
the existence of a clear and present danger of a substantive evil that could justify the denial of the
permit. These rights are not only assured by our constitution but also provided for in the
Universal Declaration of Human Rights. Between the two generally accepted principles of
diplomatic relations and human rights, the former takes higher ground. The right of the freedom
of expression and peaceful assembly is highly ranked in the scheme of constitutional values.

Source: http://pil-rizalyn.blogspot.com/2008/06/jbl-reyes-vs-bagatsing-gr-no-65366.html

viii. Head Money cases, Edye v Robertson 112 US 580 (1884)

Facts:
 In 1882 the Congress passed an act providing that a duty of fifty cents should be collected for
each and every passenger who was not a citizen of the United States, coming from a foreign port
to any port within the United States. Individuals and steamship companies brought suit against
the collector of customs at New York, Mr. WH Robertson, for the recovery of the sums of
money collected. The act was challenge on the grounds that it violated numerous treaties of the
US government with friendly nations.

Issue:

WON the act is void because of the conflict with the treaty.

Ruling:

A treaty is a compact between independent nations, which depends for its enforcement upon the
interest and honor of the governments that are parties to a treaty. Treaties that regulate the
mutual rights of citizens and subjects of the contracting nations are in the same category as acts
of Congress. When these rights are of such a nature as to be enforced by a court of justice, the
court resorts to the treaty as it would to a statute. However, a constitution gives a treaty no
superiority over an act on congress. In short, so far as a treaty made by the United States with
any foreign nation can become the subject of judicial cognizance in the courts of this country, it
is subject to such acts as Congress may pass for its enforcement, modification, or repeal.

ix. Whitney v Robertson 124 US 190 (1888)

Facts:

Merchants were importing sugar from San Domingo, and when they arrived at the custom house
in NY, they claimed b/c of the treaty btwn US & San Domingo, that the goods should be
admitted duty free. The collector at the port refused, and the merchants were made to pay
$21,936 in duties. Merchants then brought this claim to get back the duties paid. Merchants (P)
argued that the treaty btwn US and San Domingo promised to provide most favored nation
treatment to imports from San Domingo. The most favored nation treatment was from a treaty
btwn US and the Hawaiian Islands, where certain goods, including sugar, were exempt from
dutycollection. Collector of the port (D) argued that he treated the goods as dutiable articles
under the acts of Congress.

Issue:

Whether a treaty supersedes conflicting acts of Congress. -Not necessarily, both are binding.

Holding: Affirmed for D.

 Reasoning: Both self-executing treaties and acts of Congress are considered supreme laws of the
land, and both should have effect. Justice Fields says that when they conflict with each other,
"the one last in date will control the other." Since the acts of Congress were dated last, they
control. He also says that if the country with which the treaty is made is dissatisfied with the
action of the US legislative dept, then they may present a complaint to the executive had of the
govt. RULE: In the case of a conflict btwn a federal statute and a treaty, the one last in date will
control.

Notes Hierarchy - last in time rule Here the act of congress has trumped an earlier treaty
Dualism again Domestically, we care about checks and balances, that treaty no longer has any
effect But in international realm, this is a problem, b/c we are not honoring the treaty with
Dominican Republic Breaching treaty - can be taken to ICJ, etc. Example of dualist -
domestic vs. international obligations

Source http://dcomfortroom.blogspot.com/2009/12/whitney-v-robertson-124-us-190-1888.html

II. SOURCES OF PUBLIC INTERNATIONAL LAW

A. Sources of Public International Law as applied by the International Court of Justice

Direct Sources
i. International Conventions and Treaties
- most abundant sources of PIL
- between parties of treaties, the stipulations constitute the law between them.
- ex: Vienna Convention on the Law of Treaty
ii. International Customs
- custom exists when there is a clear and continuous habits of doing certain things develop under
the conviction that it is obligatory and right.
- International Court of Justice held that customary rule mist be based on constant and
uniform usage.
iii. General Principles of law
- recognized by civilized nations
- Ex: Res judicata, prescriptions, due process, law of nature, estoppel, ex aequo et bono (fair and
equity).

Secondary Sources (Subsidiary means for determining rules of law)

iv. Teaching of most highly qualified publicists of the various nations
v. Judicial Decisions

B. Equity in International Law

Principle of Ex Aequo et Bono

- means what is fair and good

- falls under the general principle of law
- equitable principle of law
 C. Classification of sources of Public International Law

i. Direct sources
ii. Indirect, secondary, subsidiary sources

D. Related Cases

i. Agustin vs Edu, February 2, 1979 (88 SCRA 195)

III. THE INDIVIDUAL AND INTERNATIONAL LAW

A. Individual under International Law

i. The Law on Nationality

NATIONALITY

- the bond that unites a person to a given state which constitutes his membership in the particular
state, giving him a claim to the protection of that state and subjects him to the obligations created
by the laws of that state.

- in International Law, the term nationality is used in place of citizenship which is understood in
municipal law as being possessed of the full rights and privileges of membership in a political
community.

ii. Rules on Multiple Nationalities (1930 Hague Convention on Conflict of Nationality Laws)

1930 HAGUE CONVENTION ON CONFLICT OF NATIONALITY LAWS

- Provides the following rules:

A. RULES IN DETERMINING A PERSON'S NATIONALITY

ARTICLE I. It is for each state to determine under it's own law who are its nationals. This
law shall be recognized by other States in so far as it is consistent with international conventions,
international customs, and the principles of law generally recognized with regards to nationality.

ARTICLE II. Any questions as to whether a person possesses the nationality of a particular
State shall be determined in accordance with the law of that State.

B. RULES ON MULTIPLE NATIONALITIES

ARTICLE III. A person having 2 or more nationalities may be regarded as it's national by
each of the States whose nationality he possesses.
 ARTICLE IV. S State may not afford diplomatic protection to one of its nationals against a
State whose nationality such person also possesses.

ARTICLE V. Within a Third State, a person having multiple nationalities shall be treated as
if he had only one. The Third State State shall, of the nationalities which any such person
possesses, recognize exclusively in it's territory either:
1. The nationality of the country in which he is habitually and principally resident, or
2. The nationality of the country with which in the circumstances he appears to be in
fact most closely connected - DOCTRINE OF EFFECTIVE NATIONALITY.

ARTICLE VI. A person possessing two nationalities acquired without any voluntary act on
his part. May renounce on of them with the authorization of the State whose nationality he
desires to surrender. This authorization may not be refused in the case of a person who has his
habitual and principal residence abroad, if the conditions laid down in the law of the State whose
nationality he desires to surrender are satisfied.

iii. DOCTRINE OF EFFECTIVE NATIONALITY

- Within a Third State, a person having multiple nationalities shall be treated as if he had only
one. The Third State State shall, of the nationalities which any such person possesses, recognize
exclusively in it's territory either:
1. The nationality of the country in which he is habitually and principally resident, or
2. The nationality of the country with which in the circumstances he appears to be in
fact most closely connected

iv. DOCTRINE OF INDELIBLE ALLEGIANCE

- a State may prohibit its nationals from changing their nationality under certain circumstances.

- ex: C.A. No. 63 (Act providing for the ways in which Philippine Citizenship may be lost or re-
acquired) which provides that Filipino citizen may lose his citizenship by subscribing to an oath
of allegiance to support the constitution or laws of a foreign country upon attaining 2 years of
age or more; Provided however that a Filipino may not divest himself of Philippine citizenship in
any manner while the Republic of the Philippines is at war with any country.

- THE EXEMPTION TO THE GENERAL RULE PROVIDED BY ARTICLE 15 OF THE

UNIVERSAL DECLARATION OF HUMAN RIGHTS " that no one shall be arbitrarily
deprived of his nationality nor denied the right to change his nationality."

v. DOCTRINE OF NEMO POTEST EXUERE PATRIAM

- doctrine providing that the bond of nationality could never be broken.

- no one might transfer his allegiance to another state without the consent of the state which had
first claim upon him.
 - the basis of the Doctrine of Indelible Allegiance

B. Individual as subject of International Law

i. Subjects and objects of international law defined

Subject of Public International Law

- an entity directly possessed with personality with the rights and obligations in the international
legal order

- ex: sovereign state as Philippines ( with capacity to sue in the International Court of Justice or
may be sued in international tribunal)

2 KINDS OF SUBJECTS IN PUBLIC INTERNATIONAL LAW:

1. COMPLETE INTERNATIONAL PERSONALITY

- ex: a state which may be divided into categories:

A. Single or Simple State (ex. Philippines)

B. Composite state
B.1. Federal States (United States of America, united states of Switzerland)
- exists when the central or federal government exercises authority over both the
various states in the Union and the citizens thereof.
- regarded as an INTERNATIONAL PERSON
- have its own governmental machineries and absorbs all individual states associated
together.
B.2. Confederation
- has some power over it's individual state but not over the individual citizens of the
member states.
- not regarded as an INTERNATIONAL PERSON, each of the member state being
represented by its own delegate.
- loose union or alliance formed through a treaty among various states, each of which
is fully sovereign and independent.

B.3. Real Union

- ex. United Arab Republic
- formed by two sovereign states linked together by a common government in
external affairs and by a common chief of state. The union then possesses a single international
personality that merges the separate personalities of the states as a unified whole.

B.4. Personal Union

- merger of two separate states in the sense that both have the same individual as the
accidental or temporary head of state. The union however has no separate international
personality since each of the member states has its own government and its own separate
international personality.
- currently, there is no personal union in existence

B.5. Incorporate Union

- one where the internal and external organs of government of two states are merged
into one resulting in a single international personality.
- ex: United kingdom of Great Britain and Ireland

2. INCOMPLETE, IMPERFECT, QUALIFIED OR QUASI-INTERNATIONAL

PERSONALITIES

1. Dependent states

-subjected to control & sovereignty of some superior state/s in the conduct of their external &
foreign affairs.

2. Belligerent & insurgent communities

- Rebels and insurgents are organized group with no rights under the international law but if civil
strife threatens to interfere with autonomy of foreign intercourse and tends to jeopardize
sovereignty of the state over the insurgent community certain insurgent rights may be tacitly
admitted.

- if the act is piracy then it is private in character and ends are not political and no insurgent
rights arise.

- parent state still liable for acts committed by the insurgent community within the jurisdiction of
said parent state even if foreign state admits existence of insurgent rights.

- if hostile acts are committed by insurgents against a foreign state the latter may choose to
punish them or turn them over to the parent state.

- foreign states ought to refrain from interfering in hostilities between parent state and insurgent
community.

Bellingerent community rights arise when:

1. End must be political in character
2. Hostilities must be a character of war and carried out in accordance with law of war
3. Proportion of revolts must be to render the issue uncertain
4. The conduct of hostilities and general government of the revolting community must be in the
hands of a responsible organization.

Recognition of the international personality status of a bellingerent community in the

 international order is ONLY FOR LIMITED PERIOD OF TIME.

3. Colonies, dependencies and possession

- they cannot be states but the international legal order grants them international personality in a
restricted degree (sign international conventions and become member of United Nations.

- COLONY is a dependent community with a number of citizens but remain subject to mother
state.

- DEPENDENCY is a territory distinct from country in which the supreme sovereign power
resides but belonging rightfully to it subject to laws and regulations which the sovereign may
think proper to prescribe.

- POSSESSION is held by a title other than that of mere physical conquest.

4. Mandate and trust territories

MANDATES - former territorial possessions of states defeated in the First World War and
placed under control of League of Nations. They are afforded the chance to develop
economically and socially by more advanced nations.

TRUST TERRITORIES - under UN supervision, the Administering Authority exercising

sovereignty power over them.

5. Public and political corporations or companies

- private corporations fall under private international law but are also involved in public
international law when in time of war their property and other rights are impaired or when
maritime law has been infringed.

6. International administrative bodies

- vested with international personality as they are beyond the control and authority of any
particular state including the region in which seat of the organization may be situated.

Object of Public International Law

- indirectly vested with rights and obligations in the international sphere

- ex: filipino private citizen ( who while entitled to certain rights which other states ought to
respect has no recourse except to course his grievances through the Republic and its diplomatic
officers)

ii. Status of individual under international law

 - While Private individuals are regarded as objects of PIL, they are recently accorded a
NEW STATUS IN INTERNATIONAL LAW and regarded as subjects in the international
order with their importance laid down by the ff:
- Charter of the UN and Universal Declaration of Human Rights
- Nuremberg and Tokyo War Tribunals for war crimes
- norms of general international law prohibiting piracy (committed only by private individuals
and not by acts of state)
- espionage rules
-court practice of permitting foreigners to prosecute claims
- rules safeguarding rights of alines and minorities
- punishment on illegal use of flag.
- procedures in admiralty and maritime matters
- special status accorded to refugees

NOTE: INDIVIDUALS therefore are TRUE SUBJECTS IF INTERNATIONAL LAW and

STATES are only AGENTS through which they act in default of more convenient means of
giving effects to their common interests.

ACT OF AN INDIVIDUAL BECOMES AN ACT OF STATE

- when his act may be imputed on the State.

- determined on the basis of the national legal order, the law of the State whose act is in
question.
- an act or performance not permitted or prescribed by law of the State cannot be imputable on
the State.
- becomes imputable on a State when performed by an individual who is an organ of the State
and competent under the law to represent the State in relation to other States such as the Head of
State.

iii. International Organizations as subjects of International law

iv. Non-governmental organizations
v. Multinational corporations
vi. Complete international personalities
vii. Incomplete, imperfect, qualified or quasi-international personalities

IV. STATES IN THE INTERNATIONAL SYSTEM

A. State defined

- group of people capable of procreation and sekf defense living in a definite territory (must be a
land not sea) possessed of government to which inhabitants render obedience.

B. Elements or Attributes of a State

 I. According to majority school of thought
1. Group of people (man & woman capable of procreation).
2. Definite territory (fixed to settle disputes on jurisdiction; a definite space where acts of state
esp. Coercive acts can be carried out legally as allowed by the general international law).
3. Government (machinery or instrument by which power in a state expresses its will and
exercises its functions).
4. Independence (freedom from external control in the conduct of one's external and internal
affairs).

II. According to Minority view

The majority school of thoughts and:

5. Possession of sufficient degree of civilization

6. Recognition by the Family of Nations

C. Fundamental Rights of States

i. The rights of existence, integrity and self-preservation

ii. The rights of sovereignty and independence
iii. The right of equality
iv. The right of property and jurisdiction
v. The right of legation or of diplomatic intercourse

The rights of existence, integrity and self-preservation

Basis

- existence presupposes its right to survive which is predicated not only to physical maintenance
of its territorial integrity but also physical expansion that follows valid acquisition of territories.
When its existence is in jeopardy it has a right of self preservation.

1. The right to acquire territories

a. Modes of acquiring territories

1. discovery and occupation

- only stateless territory could be acquired by discovery and occupation.

- Discovery should be coupled with occupation. An effective occupation is one
that would effectively take real possession of the territory and establish some kind of
administration.

2. prescription (acquisitive prescription)

 - must be continuous, public and adverse whether good or bad faith of some other
states territory and there must be a lapse of reasonable period of time.

3. cession

- territory is acquired voluntarily in case of donation or sale or involuntary as in

the result of war.
- perfection of cession commences upon meeting of minds.
- mere lease effectuated by the owner in favor of another state cannot transfer
ownership. A state making the cession is a mere usurper or intruder with no transferable right,
the cession is purposeless and inefficacious.

4. conquest and subjugation

- CONQUEST is the acquisition of the sovereignty of a country by force of arms

exercised by an independent power.
- Mere physical conquest gives an INCHOATE TITLE; for this title to ripen into
ownership subjugation must follow.
- SUBJUGATION takes place if the formal cession is made in the TREATY OF
PEACE.
- TREATY OF PEACE is essentially entered into through the use of force and
intimidation.
- Under the general international law, while duress usually vitiates the consent
given to a treaty, an EXCEPTION is the TREATY OF PEACE for such treaty is precisely
entered into as a result of fear.
- Present UN Charter however the use of threat and force is considered illegal.

5. accretion

- is the process of attaching or incorporating something to what an owner of

territory already has.
- may be natural (caused by natural force such as current of river) or artificial
(as in act of state in reclaiming part of sea in reclamation projects).

b. Modes of losing territories

1. Abandonment (must be physical abandonment of the property with the intent never to
return to the same).
2. Prescription (extinctive prescription)
3. Cession
4. Subjugation
5. forces of nature (i.e. avulsion; volcanic eruption)
6. Successful revolutions and secessions (mere declaration of independence does not
commence a new state success has to follow)

c. Space Law
 i. Air space
ii. Outer space

LEGAL STATUS OF SPACE:

- space beyond the atmosphere is incapable by its very nature of

appropriation on behalf of any particular sovereignty.
- theoretically similar to the rule of freedom of the seas where seas cant
be possessed by any particular government and necessarily open to free spatial navigation by all
those who may venture into its unknown confines.

JURISDICTION OVER SPACE ACTIVITIES

- Control and supervision vested in international bodies (i.e. UN)

- It may be exercised by the country conducting the activity from which
the departure was physically made and of citizens conducting the enterprise.

2. THE RIGHT TO SELF DEFENSE

REQUISITES: (Art. 51 of UN Charter)

1. An armed attack
2. Attack must be against a member of the UN
3. Security Council must not have acted yet

DOCTRINE OF SELF-HELP
- the right to self-defense which is an extension of the right to self-preservation hence under the
general international law the right continues to exist even if attack is made against a non-UN
member state.

ALLIANCE EXISTS
- because members of UN have implicit faith in each others desire for world peace.
- some members feel the necessity of taking measures to give maximum feeling of security either
thru mutual protection or by outright combination of strength.

3. Cases

Island of Palmas Case

Facts: In the 16th Century Spain discovered an island midway between Mindanao and Dutch East
Indies. However Spain did not effectively possess the territory. It was Holland which exercised
authority over the land. As a successor of Spain, the US asked that the island be awarded to it.
Held: The island cannot be given to the US for the inchoate title possessed by Spain never
ripened into a real title for its failure to effectively possess and administer the territory within a
reasonable period of time.

Inchoate Title discoverer must be given full opportunity to effectively possess and in the
meantime other states are legally excluded from the occupation of the territory involved.
Public International Law: Objects and Subjects
Written in 1998 during my Ll.M. studies at UST, Manila. I taught PIL for some years at FEU, Manila.

Suggested Readings

The Reporter suggests to the class the following latest references, for further
reading, on the subject matter of this Report:

1. MAGALLONA, Merlin M. A Primer in International Law in Relation to Philippine

Law. Quezon City: Central Professional Books, Inc., 1997.

2. COQUIA, Jorge and DEFENSOR-SANTIAGO, Miriam. Public International

Law. Quezon City: UP Law Center, 1994.

3. PARAS, Edgardo. International Law and World Organizations. Manila: Rex

Book Store, 1997.

4. International Law Documents, 1995, compiled and edited by The Lawyers

Review Editors and Staff. Makati City: The Lawyers Review, 1995.

5. CRUZ, Isagani. International Law. Quezon City: Central Law Books Publishing
Co., Inc., 1998.

6. CRUZ, Isagani. Political Law. Quezon City: Central Law Books Publishing Co.,
Inc., 1998.

The Seven (7) Principles of International Law Concerning Friendly

Relations and Cooperation Among States in Accordance with the Charter
of the United Nations

The United Nation's "Declaration on the Principles of International Law

Concerning Friendly Relations and Cooperation Among States in Accordance with the
Charter of the United Nations", adopted by the UN General Assembly, thru Resolution
No. 2625 (XXV) on October 24, 1970, after ten (10) years of work and study, contain the
following seven (7) basic principles of international law:
"1. The principle that states shall refrain in their international relations from
the threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with the
purposes of the United Nations;
"2. The principle that states shall settle their international disputes by
peaceful means in such a manner that international peace and security
and justice are not endangered;

"3. The duty not to intervene in matters within the domestic jurisdiction of
any state, in accordance with the Charter;
"4. The duty of states to cooperate with one another in accordance with
the Charter;
"5. The principle of equal rights and self-determination of peoples;
"6. The principle of sovereign equality of states; and
"7. The principle that states shall fulfill in good faith the obligation assumed
by them in accordance with the Charter." (cf. fifth (5th) Introductory
Clauses of the "Declaration" in Merlin M. Magallona, 96).

The Declaration enumerated the elements of "sovereign equality" of a state, thus:

"The principle of sovereign equality of states.

"All States enjoy sovereign equality. They have equal rights and duties
and are equal members of the international community, notwithstanding
differences of an economic, social, political or other nature.
"In particular, sovereign equality includes the following elements:

"(a) States are juridically equal;

"(b) Each state enjoys the rights inherent in full sovereignty;
"(c) Each state has the duty to respect the personality of other states;
"(d) The territorial integrity and political independence of the state are
inviolable;
"(e) Each state has the right freely to choose and develop its political,
social, economic and cultural systems;
"(f) Each state has the duty to comply fully and in good faith with its
international obligations and to live in peace with other states." (cf.
Principle No. 6 of the main body of the "Declaration" in Magallona, 104).
The Subjects and Objects of International Law

A subject of international law is an entity with capacity of possessing international

rights and duties and of bringing international claims. This entity is said to be an
international person or one having an international personality, on the basis of
customary or general international law. (Magallona, 18-19).

A subject of Public International Law is an entity directly possessed of rights and

obligations in the international legal order, e.g. a sovereign state, such as the
Philippines. (Paras, 43).

An object of Public International Law, on the other hand, is merely indirectly

vested with rights and obligations in the international sphere, e.g. a Filipino private
citizen is generally regarded not as a subject but an object of Public International Law
because, while he is entitled to certain rights which other states ought to respect, he
usually has no recourse except to course his grievances through the Republic of the
Philippines and its diplomatic officers. (id.).

Kinds of Subjects in International Law

A. The STATE

Magallona distinguishes between (a) general or objective international

personality and (b) particular or special international personality, as follows:

"x x x As to the first (general or objective international personality), rights

and obligations are conferred by general international law and such
personality is binding erga omnes; and as to the second (particular or
special international personality), personality binds only those which give
consent (express or tacit).
 "The distinction is implied in the Reparation for Injuries Case, in which on
the question as to the legal personality of the United Nations to claim
reparation for injury to its agents committed by nationals of a non-Member
State, the (International Court of Justice or ICJ) states: "xxx fifty States,
representing the vast majority of the members of the international
community, had the power, in conformity with international law, to bring
into being an entity possessing objective international personality and not
merely personality recognized by them alone, together with capacity to
bring international claims xxx [ICJ Reports, 1949, p. 185]." (Magallona,
19).

B. STATES: Single/Simple and Composite

Paras categorizes "subjects in international law" into two (2) categories: (a) the
complete or perfect international personality, and (b) the incomplete or imperfect, or
qualified or quasi-international personality. (Paras, 47).

He classifies states into the following species: (a) single or simple state (e.g.,
Philippines), and (b) composite state.

The 1933 Monteviedo Convention on the Rights and Duties of States provides for
the legal characteristics of a State, thus:

"The State as a person of international law should possess

the following qualifications: (a) a permanent population; (b) a
defined territory; (c) government; (d) and capacity to enter
into relations with other States." (cf. Magallona, 20).

The "capacity to enter into relations with other States" refers to independence,
which many highly qualified publicists consider as the decisive criterion of statehood.
(Magallona, 20-21).

RECOGNITION is considered as "the act by which another State acknowledges

that the political entity recognized possesses the attributes of statehood." (Magallona,
21, citing Jessup, Modern Law of Nations: An Introduction, 1949, p. 4).
 There are two theories on the nature and effect of recognition, as discussed by
Magallona (at pp. 22-22):

xxx The constitutive school maintains that it is the act of recognition which
constitutes or creates the status of a State as a subject of law and thus
gives it a legal personality. The international status of any entity as a State
is to be determined by the will and consent of already existing States.

xxx The declaratory theory asserts that recognition merely confirms the
acceptance by States of the status of an entity as a State. A new State
acquires legal personality by its own creative act in bringing about the
objective criteria of statehood, rather than by the subjective act of other
States.

xxx The declaratory school is the preferred approach, the prevailing view
being that recognition is not an element of statehood.

Paras, Coquia and Defensor-Santiago classify the different kinds of composite

states as follows:

"(1) The Federation or Federal State (such as the United States and the
United States of Switzerland);
"(2) The Confederation (such as the original Confederation of the
American States, which eventually became the nucleus of the present
United States).

"(NOTE: The principal difference between a federal union and a

confederation is that a federal union of states exists when the central or
federal government exercises authority over both the various states in the
union and the citizens thereof; while the confederation has some sort of
power over its individual states, but not over the individual citizens of the
member states. The federal union, as such, is an International Person,
thus the United States is represented in the United Nations as one juridical
or international entity; ont he other hand, the confederation as such is not
an International Person, each of the member-states being represented by
its own delegate. However, there is at present no confederation of
confederated states).
 "(3) The Real Union (such as the former United Arab Republic which was
formed by two sovereign states [Egypt and Syria] linked by a common
government in external affairs and by a common chief of state. The union
then possessed a single international personality [the separate
personalities of the states having been merged into a unified whole]. xxx.
"(4) The Personal Union (this is the merger of two separate sovereign
states in the sense that both have the same individual as the accidental or
temporary head of state. However, the union as such has no separate
international personality since each of the member-states has its own
government and its own separate international personality. It would seem
that today, there is no Personal Union in existence. xxx.

"(5) The Incorporate Union (one where the internal and external organs of
government of two states are merged into one, resulting in a single
international personality. An example is the United Kingdom of Great
Britain and Ireland xxx. While in a Real Union there is a merger only of
foreign affairs or external relations, in the Incorporate Union the merger is
actually complete and concerns internal as well as external affairs and
relations).
"NOTE: The British Commonwealth of Nations xxx apparently does not fall
under any of the preceding classifications xxx."

(Paras, 49-50; Coquia & Defensor-Santiago, 64-100).

c. The INCOMPLETE, IMPERFECT, QUALIFIED

OR QUASI-INTERNATIONAL PERSONALITIES

Paras lists the incomplete, imperfect, qualified or quasi-international personalities

as follows:

"xxx among them are the dependent states (protectorate and

suzerainties); belligerent communities (and in a very, very modified way,
insurgent communities, subject to certain conditions); colonies;
dependencies and possessions; mandates and trust territories; certain
public and political corporations or companies; and international
administrative bodies." (Paras, 52; underscoring supplied).
 It is noteworthy to state that "international Organizations such as the former
League of Nations and the present United Nations are of course in their own way
International Persons." (Paras, 60).

The United Nations, being possessed of juridical personality, has the following
capacities: to contract; to acquire and dispose of immovable and movable property; and
to institute legal proceedings. (Paras, 63, citing Art. 1, Convention on the Privileges and
Immunities of the United Nations, adopted by the UN General Assembly on Feb. 13,
1946, in 1 UN Treaty Series 15).

Paras classifies the three (3) groups of International Organizations, aside from
the United Nations, as follows:

(1) Inter-governmental bodies, including specialized agencies of the UN,

e.g., Food and Agricultural Organization, International Labor Organization,
International Monetary Fund, United Nations Educational, Scientific and
Cultural Organization;

(2) Other Inter-Governmental Bodies, e.g., Permanent Court of Arbitration,

International Criminal Police Commission, Bank of International
Settlements;

(3) Non-Governmental International Bodies, e.g. International Commission

of Jurists, Christian Family Movement Moral Re-Armament, International
Chamber of Commerce, Rotary International. (cf. Paras, 60-61).

Private Individuals: Developing

New Status in International Law

Paras discusses that while traditional writers insist that private individuals are
merely objects and not subjects of international law, some recognized writers in recent
years have accorded to the individual a new status in international law: they say, and
with good reason, that private individuals should now be regarded as subjects in the
international order, in view of the importance laid on them by the following:

"(1) the Charter of the United Nations Organization, and the Universal
Declaration of Human Rights; x x x;
"(2) the Nuremberg and Tokyo War Tribunals for War Crimes xxx;
"(3) the norm of general international law which prohibits piracy x x x:
"(4) espionage rules; conventions punishing acts of illegitimate warfare;
rules of general international law punishing private individuals for breach
of blockade and carriage of contraband;
"(5) the practice of certain courts of permitting foreigners to appear and
prosecute claims;
"(6) the Genocide Convention of 1948 which directly holds liable not only
states, but also private individuals, for the mass extermination of a racial
group;
"(7) the existence of rules safeguarding the rights of aliens and minorities;
"(8) punishment for the illegal use of the flag (Reporter's Note: this refers
to vessels using the flag of s state with which such vessel is not
registered);
"(9) the procedure in admiralty and maritime matters;
"(10) the special status accorded to refugees, and to displaced persons,
such as those fleeing from South Vietnam, from Cambodia, and, more
recently, from Cuba x x x. (cf. Paras, 44-46).

BELLIGERENT AND INSURGENT COMMUNITIES

A status of belligerency recognized under international law may arise if (1) there
exists within the State an armed conflict of a general character; (2) the insurgents
occupy a substantial portion of the national territory; and (3) they conduct the hostilities
in accordance with the rules of war thru organized groups acting under a responsible
authority. (Coquia/Defensor-Santiago, 85).

Recognition of a status of belligerency on the part of other States is necessary

for the legal creation of the status of "belligerent community." (id.).

A fourth requirement that has been suggested for the recognition of belligerency
is that there must exist a circumstance which makes it "necessary" for the recognizing
State to define its attitude tot he conflict. Coquia and Defensor-Santiago explains the
matter, thus:
 The reason for this final requirement is that if the parties to
the struggle propose to exercise belligerent rights on the
high seas in such a manner as to affect the recognizing
State's maritime interests, the need for it to define its attitude
to the struggle has arisen. If, on the other hand, a distant
inland state with no maritime interests, and in no way
affected by the conflict were to recognize the rebels as
belligerents, it could open itself to the charge of encouraging
rebellion. (id., 86).

Recognitionn of belligerency before the four conditions are fulfilled is considered

as contrary to international law (id., 86, citing Sorensen, 286).

Recognition of belligerency by a State not a party to the contest is frequently

announced in a formal proclamation of neutrality between the two contending parties.
Recognition may be express or implied. (id., 87).

If the foreign government gives aid to the de facto (belligerent) government

recognized by it, and that de facto government is defeated in the war, then the lawful
government may hold the foreign State responsible for an act of unjustifiable aggression
and of premature recognition. (id., citing Oppenheim-Lauterpacht, 13).

The recognized belligerent community lacks the right to send or receive

diplomatic agents to join international organizations, and to benefit in a normal manner
from multilateral conventions concerned with peacetime international relations and
activities of States. (id., 86).

Coquia and Defensor-Santiago cite the legal implications of recognition of a

belligerent community, thus:

The granting of recognition of belligerency to rebels is only

provisional. While conferring an equal status to warring
groups, it does so only for the purposes and for the duration
of the war. For the purposes and for the duration of the war,
the insurgents recognized as a belligerent power possess for
the most part, the duties and rights of States when engaged
in war. (id., citing Kelsen, 413).
 A state of insurgency is not equivalent to a state of belligerency. The former is "a
rebellion which has not yet achieved the standing of a belligerent community xxx, a
condition described as intermediate between internal tranquility and civil war." (Coquia,
88).

The conditions for a state of insurgency are: (1) the insurgents must have a
government and a military organization of their own; (2) the insurrection must be
conducted in the technical forms of war, that is, it must be more than a petty revolt and
must assume the true characteristics of a war; and (3) the government of the insurgents
must in fact control a certain part of the territory of the State in which the civil war takes
place. (id., citing Kelsen, 412).

A related matter is the "government in exile". It has two classes, according to

Coquia and Defensor-Santiago:

The first category consists of governments whose heads and

cabinets move from the national territory temporarily during
the moments of crisis. xxx. In such cases, no formal act of
recognition (is) necessary xxx because it (is) deemed that
there (is) no break in legal continuity.

A second category consist of governments formed abroad, in

which case there can be no legal connection between the
government in exile and the government operating on the
national territory at the time. xxx. A formal act of recognition
(is) necessary. xxx.

The governments under the second category do not have

any international status. While there may be groups
assuming governmental powers for their national territory for
political or other reasons, the fact is that they are merely
hoping to form a legitimate government or State at some
time in the future.

x x x.

xxx A recognition accorded during the effective continuance

of the lawful (de jure) government over the greater part of
the national territory may be considered as an act of
interference in the national affairs of another State. (id., 97,
citing the recognition of the Franco regime in Spain by
Germany and Italy only five months after the Spanish civil
war broke out at the time when the republican government
was still in control of the greater part of Spain).
ADDENDUM:

PHILIPPINE TERRITORY IN RELATION TO THE

U.N. CONVENTION ON THE LAW OF THE SEA

Article I of the 1987 Philippine Constitution defines the Philippine territory, thus:

The national territory comprises the Philippine archipelago,

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

Pursuant to Art. 47.1 of the UN Convention on the Law of the Sea (UNCLOS)
which entered into force on November 16, 1994, the Philippines, as an archipelagic
state, may determine is archipelagic baselines as follows:

It may draw straight archipelagic baselines surrounding

itself. This is done by locating "the outermost points of ... (its)
outermost islands and drying reefs" and then by joining such
points. It is required that the main islands are included within
the baselines as well as an area in which "the ratio of the
area of the water to the area of the land, including atolls, is
between 1 to 1 and 9 to 1."
 (Magallona, 80, citing Art. 47.1 of UNCLOS).

The "maritime zones" of the Philippines, under the provisions of UNCLOS,

consist of the following: (1) the territorial sea; (2) the contiguous zone; and (3) the
exclusive economic zone.

The breadth of its territorial sea is measured from

archipelagic baselines up to a distance seaward not
exceeding 12 nautical miles.

If it declares a contiguous zone, this shall not exceed 24

nautical miles from the archipelagic baselines.

Its exclusive economic zone shall not exceed beyond 200

nautical miles from the archipelagic baselines.

(id., citing Arts. 2, 33.2, and 57 of UNCLOS).

The waters enclosed by the archipelagic baselines of the Philippines, which are
called "archipelagic waters," are within Philippine sovereignty. It also extends to
"airspace over archipelagic waters as well as their bed and subsoil, including the
resources therein." (id., citing Art. 49 of UNCLOS).

Pursuant to Articles 52 and 53 of UNCLOS, "ships of all states enjoy the right of
innocent passage through archipelagic waters" (which includes "internal waters" or the
"territorial sea") and such archipelagic waters may also be subject to "the continuous
and expeditious passage of foreign ships and aircraft, known as the right of archipelagic
sealanes." All ships and aircraft enjoy this right thru designated sea lanes and air
routes. The "territorial sea", which is a zone of Philippine sovereignty, is subject to the
right of innocent passage by ships of all states, including "foreign nuclear-powered
ships, those carrying nuclear or other inherently dangerous or noxious substances,
submarines and warships." Also, the Philippine territorial sea is also restricted by the
right of archipelagic sea lanes passage but "only such portions of the territorial sea
adjacent tot he Philippine archipelagic waters." All of the above provisions of UNCLOS
pose potential constitutional problems. (id., 82, citing Arts. 2, 17, 20, 23, 24, 30, 52 and
53 of UNCLOS).

Magallona discusses the legal status of the "contiguous zone" thus:

Adjacent to the territorial sea, it is a zone where the

Philippines may exercise certain protective jurisdiction, i.e.,
to prevent infringement of its customs, fiscal, immigration or
sanitary laws and regulations and to punish violation of laws
committed within its territory or in the territorial sea.

The Philippines does not have sovereignty over the

contiguous zone. It is a zone of jurisdiction, not of
sovereignty.

(id., 82-83, citing Art. 33.1 of UNCLOS).

As to the "exclusive economic zone", the Philippines has sovereign rights over
the same "for purposes of exploring, exploiting, conserving and managing the natural
resources" therein and it as "jurisdictional rights with regard to artificial islands,
environmental protection and maritime scientific research." (id., 83, citing Arts. 52.1 [a]
and [b] of UNCLOS).

The Philippines may be required to grant other states access to living resources
in its EEZ:

xxx It must determine its capacity to harvest living resources.

If it does not have the capacity to harvest the entire
allowable catch, it shall give other states access to the
surplus of the allowable catch by means of agreements
consistent with the UNCLOS.
 x x x.

xxx In the EEZ, all states continue to enjoy the freedom of

the high seas, subject to the rights of the Philippines as thus
mentioned. Generally, the rules of international law
pertaining to the high seas apply to the EEZ.

(id., 84-85, citing Arts. 56.1 [a], 58.1, 58.2, 61.1, and 62.3 of
UNCLOS).

There thus appears an apparent incompatibility with the 1987 Constitution. It will
be noted that Sec. 2, Art. XII of the 1987 Constitution provides that "the State shall
protect the nation's marine wealth in its archipelagic waters, territorial sea, and
exclusive economic zone, and reserve it use and enjoyment exclusively to Filipino
citizens." (id., 84; original underscoring by the author).

What is the Philippine "continental shelf" under UNCLOS? Magallona discusses

its extent, thus:

It is the sea-bed and sub-soil of the submarine areas

extending beyond the Philippine territorial sea throughout the
natural prolongation of the land territory. It extends up (1) the
outer edge of the continental margin or (2) up to the distance
of 200 nautical miles from the archipelagic baselines,
whichever is farthest.

(id., 85, citing Art. 76 of UNCLOS).

The continental shelf does not form part of the "Philippine territory." (id., 85). But the
Philippines has the sovereign right for the purpose of exploring it and exploiting its
natural resources. (id., citing Art. 77 and 78 of UNCLOS). Elucidating further on the
"continental shelf", Magallona writes:

The UNCLOS describes these rights (i.e, to explore and

exploit natural resources in the continental shelf) as
exclusive in the sense that if the Philippines does not explore
the continental shelf or exploit its natural resources, no one
may undertake these activities without its consent Rights of
the Philippines over the continental shelf "do not depend on
occupation, effective or notional, or on any express
proclamation. (Art. 77.2, UNCLOS; underscoring supplied).

x x x.

The Philippines has the exclusive right to construct, to

authorize and regulate the construction, operation and use of
artificial islands and installations. (Arts. 60 and 80,
UNCLOS). Its jurisdiction over these is exclusive, in
particular with respect to customs, fiscal, health, safety and
immigration regulations. (Art. 60.2, UNCLOS).

x x x.

The Philippines has exclusive right to authorize as well as to

regulate drilling for all purposes. (Art. 81, UNCLOS).

(id., 86, citing Arts. 77.2, 60.2, and 81 of UNCLOS).