Hizon Notes - Public International Law (Erika Pineda - S Conflicted Copy 2014-10-09) PDF

NOTES ON PUBLIC INTERNATIONAL LAW
Kenneth & King Hizon (3A) _____________________________________________
UNIVERSITY OF SANTO TOMAS

Faculty of Civil Law
A.Y. 2012-2013
First Semester
PUBLIC INTERNATIONAL LAW
INTRODUCTION a conflict between rule of international law and the

provisions of the Constitution or statute of the local state.
Q: What is international law? Efforts should first be exerted to harmonize them, so as to
give effect to both since it is to be presumed that municipal
A: It is a body of principles, norms and processes which law was enacted with proper regard for the generally
regulates the relations of State and other international accepted principles of international law in observance of the
persons, and governs their conduct affecting the interest of observance of the Incorporation Clause. In a situation,
the international community of States as a whole (Magallona, however, where the conflict is irreconcilable and a choice has
p. 1, 2005). to be made between a rule of international law and municipal
law, jurisprudence dictates that municipal law should be
Q: What is public international law? upheld by the municipal courts for the reason that such
courts are organs of municipal law and are accordingly bound
A: It is the body of rules and principles that are by it in all circumstances. The fact that international law has
recognized as legally binding and which govern been made part of the law of the land does not pertain to or
the relations of states and other entities invested imply the primacy of international law over national or
with international legal personality. municipal law in the municipal sphere. The doctrine of
incorporation, as applied in most countries, decrees that rules
Q: What is private international law? of international law are given equal standing with, but are not
superior to, national legislative enactments. Accordingly, the
A: It is that part of the law of each State which principle lex posterior derogat priori takes effect — a treaty
determines whether, in dealing with a factual may repeal a statute and a statute may repeal a treaty. In
situation, an event or transaction between private states where the constitution is the highest law of the land,
individuals or entities involving a foreign element, such as the Republic of the Philippines, both statutes and
the law of some other State will be recognized. treaties may be invalidated if they are in conflict with the
constitution (Secretary of Justice v. Lantion, 2000).
Q: What is the other term for private international law?
Tañada v. Angara (272 SCRA 18)
A: Conflicts of laws.
By their inherent nature, treaties really limit or restrict the
RELATIONS BETWEEN INTERNATIONAL LAW absoluteness of sovereignty. By their voluntary act, nations
AND MUNICIPAL LAW may surrender some aspects of their state power in exchange
Doctrine of Incorporation for greater benefits granted by or derived from a convention
or pact. After all, states, like individuals, live with coequals,
Q: What is the “doctrine of incorporation”? and in pursuit of mutually covenanted objectives and
benefits, they also commonly agree to limit the exercise of
A: It means that the rules of international law form part of their otherwise absolute rights. Thus, treaties have been
the law of the land and no further legislative action is used to record agreements between States concerning such
needed to make such rules applicable in the domestic widely diverse matters as, for example, the lease of naval
sphere. This is followed in the Philippines. bases, the sale or cession of territory, the termination of war,
the regulation of conduct of hostilities, the formation of
Q: Under what instance does this doctrine apply? alliances, the regulation of commercial relations, the settling
A: It is applied whenever municipal tribunals or local courts of claims, the laying down of rules governing conduct in
are confronted with situations in which there appears to be peace and the establishment of international organizations.
Facultad de Derecho Civil 1

The sovereignty of a state therefore cannot in fact and in The role of the Senate is limited only to giving or withholding
reality be considered absolute. Certain restrictions enter into its consent, or concurrence, to the ratification (Bayan vs.
the picture: (1) limitations imposed by the very nature of Zamora, G.R. No. 138570, October 10, 2000).
membership in the family of nations and (2) limitations
imposed by treaty stipulations. This provision lays down the general rule on treaties or
international agreements and applies to any form of treaty
ARTICLE II, 1987 Philippine Constitution with a wide variety of subject matter. All treaties or
DECLARATION OF PRINCIPLES AND STATE POLICIES international agreements entered into by the Philippines,
PRINCIPLES regardless of subject matter, coverage, or particular
designation or appellation, requires the concurrence of the
Section 2. The Philippines renounces war as an instrument of Senate to be valid and effective.
national policy, adopts the generally accepted principles of
international law as part of the law of the land and adheres to Q: State the constitutional basis.
the policy of peace, equality, justice, freedom, cooperation,
and amity with all nations. A:
Q: Give examples of “generally accepted principles of Section 21. No treaty or international agreement shall be
International Law”? valid and effective unless concurred in by at least two-thirds
of all the Members of the Senate.
A:
Right to self-determination of the peoples
1. Pacta sunt servanda Article 2, 1987 Constitution
2. Rebus sic stantibus- agreement is valid only if the
same conditions prevailing at time of contracting Section 7. The State shall pursue an independent foreign
continue to exist at the time of performance policy. In its relations with other states, the paramount
3. Par en parem non habet imperium (State Immunity consideration shall be national sovereignty, territorial
from Suit) integrity, national interest, and the right to self-
4. Sovereign Equality of States determination.
5. right of states to self-defense
6. right to self-determination of people Q: What is the right to self-determination of the peoples?
Doctrine of Transformation A: The right of peoples everywhere to freely determine their

political status and pursue their economic, social and cultural
Q: What is the doctrine of transformation? development.
A: Legislative action is required to make the treaty It is a new concept in international law. It is understood as
enforceable in the municipal sphere. Generally accepted the right to internal self-determination of the people in
rules of international law are pursuit to their social, economic and political development
not per se binding upon the state but must first be within the framework of an existing state.
embodied in legislation enacted by the lawmaking
body and so transformed into municipal law. This Q: What are the 2 classification of rights?
doctrine runs counter Art. II, Sec. 2, of the 1987
Constitution. A:
1. individual
Q: What is pacta sunt servanda? Ex: Bill of rights
A: The international agreements must be performed in good 2. collective

faith. A treaty engagement is not a mere moral obligation but Ex: Right to self-determination, right of the people to
creates a legally binding obligation on the parties. A state balanced and healthful ecology
which has contracted a valid international agreement is
bound to make in its legislation such modification as may be NOTE: The right to self-determination has now grown and is
necessary to ensure fulfillment of the obligation undertaken. elevated into a generally accepted principle in international
law.
Q: Who ratifies the treaties?
Q: Who may claim the right to self-determination?
A: In our jurisdiction, the power to ratify is vested in the
President and not, as commonly believed, in the legislature. A: It refers to the

a. right of indigenous peoples and qualified publicists of the various nations, as
b. indigenous cultural communities subsidiary means for the determination of rules of
law.
and in extreme cases, of people:
a. under colonial rule 2. This provision shall not prejudice the power of the Court to
b. from other foreign domination or exploitation decide a case ex aequo et bono, if the parties agree thereto.
outside the colonial context
Q: What are the sources of public international law?
Q: What are the 2 kinds of right to self-determination?
A: Article 38 of the Statute of International Court of
A: Justice (SICJ) directs that the following be considered
1. external before deciding a case:
2. internal
A. Primary
Province of North Cotabato I. Treaties or International Conventions II. International
Custom
Q: What is the scope of the right to self-determination? III. General Principles of Law Recognized by Civilized
Nations
A: The recognized sources of international law establish that
the right to self-determination of a people is normally fulfilled B. Secondary/Subsidiary
through internal self-determination - a people's pursuit of its IV. Judicial Decisions
political, economic, social and cultural development within V. Teachings of authoritative publicists
the framework of an existing state. A right to external self-
determination (which in this case potentially takes the form Treaties
of the assertion of a right to unilateral secession) arises in
only the most extreme of cases and, even then, under Q: What are the elements for a valid treaty?
carefully defined circumstances. External self-determination
can be defined the establishment of a sovereign and A: Same elements as to ordinary contracts:
independent State, the free association or integration with an
independent State or the emergence into any other political 1. consent
status freely determined by a people constitute modes of 2. object
implementing the right of self-determination by that people. 3. consideration
Indeed, the right to self-determination of the people is now Q: What are contract treaties?
elevated into a generally accepted principle. However, it is
only limited to internal right to self-determination. A: Bilateral arrangements concerning matters of particular or
special interest to the contracting parties. They are sources of
particular international law but may become primary sources
of public international law when different contract treaties
SOURCES OF PUBLIC INTERNATIONAL LAW are of the same nature, containing practically uniform
provisions, and are concluded by a substantial number of
STATUTE OF THE INTERNATIONAL COURT OF JUSTICE States.
Article 38
Q: What are law‐making treaties?
1. The Court, whose function is to decide in accordance
with international law such disputes as are submitted to A: Treaties which are concluded by a large number of States
it, shall apply: for purposes of:
a. international conventions, whether general or 1. Declaring, confirming, or defining their

particular, establishing rules expressly recognized by understanding of what the law is on a particular
the contesting states; subject;
b. international custom, as evidence of a general 2. Stipulating or laying down new general rules for
practice accepted as law; future international conduct; and
c. the general principles of law recognized by civilized 3. Creating new international institutions.
nations;
d. subject to the provisions of Article 59, judicial Q: Is there a difference between lawmaking treatise (traits-
decisions and the teachings of the most highly lois) and contractual treatise (traits contracts)?

A:
A: There is no significant difference. All treaties are 1. estoppel
lawmaking inasmuch as they lay down the rules of conduct 2. pacta sunt servanda
which the parties are bound to observe as law. 3. res judicata
4. prescription
The only difference is that contractual treaties are concluded 5. principle of justice and law
on short-term, particular questions and they terminate their 6. res inter alios acta rule
validity after they have fulfilled their purpose; whereas, 7. he who comes to the court must come with clean
lawmaking treaties related to a broad sphere of relations and hands
are concluded for long-term purposes.
Q: Does the stare decisis rule binding under public
Q: Who are bound by treaties and international international law?
conventions?
A: No. The doctrine of stare decisis is not applicable in
A: international law per Art.59 of the ICJ which
states that "The decision of the Court has no
binding force except between the parties and in
GR: Only the parties. respect to that particular case." This means that
these decisions are not a direct source, but they
XPN: Treaties may be considered a direct source of do exercise considerable influence as an impartial
international law when concluded by a sizable number of and well-considered statement of the law by
States, and is reflective of the will of the family of nations. jurists made in the light of actual problems which
arise before them, and thus, accorded with great
respect.
Customs
Article 59, ICJ
Q: What is custom?
Article 59. The decision of the Court has no binding force
A: Custom is the practice that has grown up between States except between the parties and in respect of that particular
and has come to be accepted as binding by the mere fact of case.
persistent usage over a long period of time
Teachings of authoritative publicists
It exists when a clear and continuous habit of doing
certain things develops under the CONVICTION that Q: What are the requisites in order to consider a person to
it is obligatory and right.
be a highly qualified publicist?
This conviction is called "Opinio Juris"
A:
Q: What are the elements of international custom? 1. His writings must be fair and impartial representation of
law;
2. An acknowledged authority in the field.
1. General practice, characterized by uniformity and
consistency; Rome Statute
2. Opiniojuris, or recognition of that practice as a legal norm
and therefore obligatory; and Q: What is “Rome Statute”?
3. Duration
A: The Rome Statute of the International Criminal Court
NOTE: Repetition of practice or action of states is necessary. (often referred to as the International Criminal Court Statute
or the Rome Statute) is the treaty that established the
Q: How is the element of opinion juris understood? International Criminal Court (ICC).
th
A: It means that the States must believe that the practice is The Philippines is the 117 country to ratify the Rome Statute
required by law, and not because of courtesy or political according to Dean Pangalanan.
expediency.
United Nations
General Principles of Law Recognized by
Civilized Nations Q: What are the 6 principal organs of the U.N.
Q: Give examples of General Principles of Law Recognized A:

by Civilized Nations.
1. General Assembly
2. Security Council the human person, including protection from slavery and
3. Economic Social Council racial discrimination.
4. Trusteeship Council
5. International Court of Justice Yogyakarta Principles
6. Secretariat
Q: What are the Yogyakarta Principles?
Q: What is the International Court of Justice?
A: The Yogyakarta Principles ensure the full enjoyment of all
A: It is the primary judicial organ of the United Nations human rights by all persons regardless of sexual orientation
and gender identity. They were put together by a
Jus cogens and Erga omnes distinguished group of human rights experts in November
2006 at Yogyakarta, Indonesia and have since been
Q: What is jus cogens (“compelling law”) norm? introduced formally to the United Nations (UN) system,
translated into the six official UN languages and launched in
A: A jus cogens norm is a norm accepted and recognized by several countries.
the international community of States as a whole as a norm
from which no derogation is permitted and which can be The Yogyakarta Principles ensure the full enjoyment of all
modified only by a subsequent norm of general international human rights by all persons regardless of sexual orientation
law having the same character. and gender identity. They were put together by a
distinguished group of human rights experts in November
E.g. the prohibition against the use of force under the UN 2006 at Yogyakarta , Indonesia and have since been
Charter (Outlawing of acts of aggression); Outlawing of introduced formally to the United Nations (UN) system,
genocide; Basic human rights, including protection from translated into the six official UN languages and launched in
slavery and racial discrimination; principle of self- several countries.
determination, crimes against humanity, prohibition against
slavery and slave trade, and piracy (Magallona, p. 26, 2005). Q: Is the Yogyakarta Principles accepted under our
jurisdiction?
Q: Distinguish jus cogens from jus dispositivum.
A: We are not prepared to declare that these Yogyakarta
A: A jus cogens or peremptory is a norm which States cannot Principles contain norms that are obligatory on
derogate or deviate from in their agreements. It is a the Philippines. There are declarations and obligations
mandatory norm and stands on a higher catregory than a jus outlined in said Principles which are not reflective of the
dispositivum norm which States can set aside or modify by current state of international law, and do not find basis in any
agreement. of the sources of international law enumerated under Article
38(1) of the Statute of the International Court of Justice (Ang
Q: May a treaty or conventional rule qualifies as a norm of Ladlad LGBT Party v. COMELEC).
jus cogens character?
Q: What is the concept ex aequo et bono?
A: No. Treaty rule binds only States that are parties to it and
even in the event that all States are parties to a treaty, they A: It is a judgment based on considerations of fairness, not on
are entitled to terminate or withdraw from the treaty. considerations of existing law, that is, to simply decide the
case based upon a balancing of the equities. (Brownlie, 2003)
Q: What is erga omnes (“in relation to everyone”)?
A: It is an obligation of every State towards the international

community as a whole. All states have a legal interest in its SUBJECTS AND OBJECTS OF INTERNATIONAL LAW
compliance, and thus all States are entitled to invoke
responsibility for breach of such an obligation. 2 Concepts:
Q: Distinguish between erga omnes from an obligation inter 1. Traditional concept- Only States are considered
se (which a State owes to another State)? subjects of international law.
A: Erga omnes, by their nature, are the concern of all States. 2. Contemporary concept- Individuals and
All States can be held to have a legal interest in their international organizations are also subjects because
protection. they have rights and duties under international
law.
Eg. Outlawing of acts of aggression, and of genocide, as also
from the principles and rules concerning the basic rights of

Subjects of international law Q: How is the primacy of states as subjects of international

law explained?
Q: What is a “subject” of international law?
A: The States are the repositories of legitimated authority
A: A Subject is an entity that has an international over peoples and territories. It is only in terms of State
personality. An entity has an international powers, prerogatives, jurisdictional limits and law-making
personality if it can directly enforce its rights and duties capabilities that territorial limits and jurisdiction,
under international law. Where there is no direct
enforcement of accountability and an intermediate responsibility for official actions, and a host of other
agency is needed, the entity is merely an object not a questions of co-existence between nations can be
subject of international law. determined.
It is an entity with capacity of possessing international rights A: Are international organizations considered as subjects of
and duties and of bringing international claims (Magallona, international law?
p. 33, 2005).
A: Yes, if their legal personality is established by their
Q: When does an entity acquire international
personality? constituent instrument or charter. Their status is determined
by agreement and not by general or customary international
A: When it has right and duties under law. Their personality is derivative of the collective will of the
international law; can directly enforce its rights; states creating it.
and may be held directly accountable for its
obligations.
Q: What is the criterion for legal personality to be met?
Q: Distinguish between general or objective international
personality from particular or special international A:
personality? 1. A permanent association of states, with lawful
objects, equipped with organs
A: As to the first, rights and obligations are conferred by 2. A distinction, in terms of legal powers and purposes,
general international law and such personality is binding erga
between the organization and its member states
omnes. As to the second, personality binds only those which
give consent. It is brough about by their agreement and is 3. The existence of legal powers exercisable on the
recognized only among themselves as parties to that international plane and not solely within the national
agreement. system of one or more states
GENERAL SPCEIAL Q: May individuals assume the status of subjects of

Right and obligations are Personality binds only those international law?
conferred by general which give consent:
international law and such a. Express A: Yes, but on the basis of the agreement by states and in
personality is binding erga b. tacit specific context, not in accordance with general or customary
omnes international law.
Q: If an entity is not a subject of international law, can it still HOLY SEE v. ROSARIO (1994)
assume certain characteristics of international personality?
Under both Public International Law and Transnational Law, a
A: Yes, but in a special or restricted context such as that person who feels aggrieved by the acts of a foreign sovereign
defined by agreement, recognition or acquiescence. can ask his own government to espouse his cause through
diplomatic channels.
Q: How is the State regarded as a subject of international
law? Private respondent can ask the Philippine government,
through the Foreign Office, to espouse its claims against the
A: The State is regarded as subject of international law or an Holy See. Its first task is to persuade the Philippine
international legal person in that it has, in other words, the government to take up with the Holy See the validity of its
capacity to be bearer of rights and duties under claims. Of course, the Foreign Office shall first make a
international law. determination of the impact of its espousal on the relations
between the Philippine government and the Holy See. Once
The status of the State as subject of law or an international the Philippine government decides to espouse the claim, the
person is conferred by customary or general international latter ceases to be a private cause.
law. It possesses erga omnes or objective personality not
merely by virtue of recognition on the part of particular
states.
According to the Permanent Court of International Justice, organized for poltiical end where majority of the inhabitants
the forerunner of the International Court of Justice by taking render habitual obedience (sovereignty).
up the case of one of its subjects and by reporting to
diplomatic action or international judicial proceedings on his Q: Distinguish state from nation.
behalf, a State is in reality asserting its own rights — its right
to ensure, in the person of its subjects, respect for the rules A:
of international law.
STATE NATION
Objects of international law A legal concept Ethnic or racial concept
Q: What is an object of international law? NOTE: There may be one state with many nations.
E.g. Arab Nations
A: An Object is a person or thing in respect of which rights
are held and obligations assumed by the Subject. Thus, it is
not directly governed by the rules of international law. There may be several states with one nation. E.g. United
There is no direct enforcement and accountability. An States of America
intermediate agency—the Subject—is required for
the enjoyment of its rights and for the discharge of its Q: What are the capacities associated with legal personality
obligations.
of States?
Q: Distinguish subjects from objects of international law.
A: These include:
A:
1. capacity to make international agreements
2. to engage in privileges and immunities with respect
SUBJECTS OF INTENATIONAL OBJECTS OF INTENATIONAL
to national jurisdictions
LAW LAW
3. capacity to bring claims in cases of breach of
Entity that has rights and Person or thing in respect of international laws
responsibilities which rights are held and
obligations assumed by the Q: Can the comfort woman and their descendant assert
subject individual claims against Japan?
Has international personality Not directly governed by the
that it can directly assert rules of international law A: No. The sovereign authority of the state to settle claims
rights and can be held of its nationals against foreign countries has repeatedly
responsible under the law of been recognized. This may be made without the consent
nations of the nationals or even without consultation with them.
It can be a proper party in Its rights are received and its Since the continued amity between the State and other
transactions involving the responsibilities imposed countries may require a satisfactory compromise of
application of the law of indirectly through the mutual claims, the necessary power to make such
nations among members of instrumentality of an compromise has been recognized. The settlement of such
international communities intermediate agency claims may be made by executive agreement.
Q: What must a person who feels aggrieved by

the acts of a foreign sovereign do to espouse his
cause?
STATE
A: Under both Public International Law and Transnational
Q: What is a state? Law, a person who feels aggrieved by the acts of a foreign
sovereign can ask his own government to espouse his
A: A state is a community of persons more or less numerous, cause through diplomatic channels.
permanently occupying a definite portion of territory,
independent of external control, and possessing an external "By taking up the case of one of its subjects and
government of which the great body of inhabitants render by resorting to diplomatic action or international
habitual obedience. judicial proceedings on his behalf, a State is in
reality asserting its own rights - its right to
It is a community of persons (people), more ore less ensure, in the person of its subjects, respect for
numerous, permanently occupying a fixed portion of the the rules of international law."
surface of the earth (territory) having a government,

A: No. It is a public act of the State and is optional and
Elements of State political act and there is no legal duty in this regard.
Q: What are the elements of a state? Q: Does admission of a State into the UN signify
recognition?
A:
A: Yes.
1. People – an aggregate of individuals of both sexes
(for perpetuity), who live together as a community Article 4 (1) of the UN Charter
despite racial or cultural differences (permanent
population). Membership in the United Nations is open to all other peace-
2. Territory – fixed portion of the earth’s surface which loving states which accept the obligations contained in the
the inhabitants occupy (defined territory). present Charter and, in the judgment of the Organization, are
3. Government – it is the agency through which the able and willing to carry out these obligations.
will of the state is formulated, expressed and
realized. The admission of any such state to membership in the United
Nations will be effected by a decision of the General
NOTE: The Principal is the State while the Assembly upon the recommendation of the Security Council.
Government is the Agent.
Thus, admission to membership signifies acceptance of status
4. Independence/sovereignty – the power of a state to as a state for the purposes of international law.
manage its external affairs without direction or
interference from another state (capacity to enter VATICAN AS A STATE
into relations with other States.
Q: Is Vatican a State?
Q: What are the other suggested elements of the State?
A. Yes. In the case of Holy See v. Rosario the SC noted that the
A: Lateran Treaty between Italy and the Pope established the
Statehood of the Vatican for the purpose of assuring to the
1. Civilization Holy See absolute and visible independence and of
2. Recognition guaranteeing to it indisputable sovereignty also in the field of
international relations.
Q: How is the status of an entity as a State accepted by
other States? NOTE: The Lateran Treaty established the STATEHOOD of the
Vatican City "for the purpose of assuring to the Holy See
A: It is through recognition which is the act by which another absolute and visible independence and of guaranteeing to it
State acknowledges that the political entity recognized indisputable sovereignty also in the field of international
possesses the attributes of statehood. relations".
Effect of Recognition From the wordings of the Lateran Treaty, it is difficult to

determine whether the statehood is vested in the Holy See or
Q: What is the effect of such recogniton? in the Vatican City. The Vatican City fits into none of the
established categories of states, and the attribution to it of
A: "sovereignty" must be made in a sense different from that in
which it is applied to other states. The Vatican City
1. Constructive School- it consittutes or creates the represents an entity organized not for political but for
status of a State as a subject of law and thus gives it ecclesiastical purposes and international objects. Despite its
a legal personality; size and object, it has an independent government of its own,
2. Declaratory status- recognition merely confirms the with the Pope, who is also head of the Roman Catholic
accepatance by States of the status of an entity as a Church, as the Holy See or Head of State, in conformity with
State. its traditions, and the demands of its mission. Indeed,
NOTE: The prevailing view is that recognition is not its world-wide interests and activities are such as to make it
an element of statehood (Magallona, p. 41, 2005). in a sense an "international state".
Q: Is there a duty to recognize a state? It was noted that the recognition of the Vatican City as a
state has significant implication - that it is possible for any
entity pursuing objects essentially different from those

pursued by states to be invested with international Q: Is the size relevant?
personality.
A: No. It is irrelevant. The territory must not be too big as to
be difficult to administer and defend; but must not be too
Since the Pope prefers to conduct foreign relations small as to unable to provide for people’s needs.
and enter into transactions as the Holy See and not in the
name of the Vatican City, one can conclude that in the Pope's NOTE: The importance of State territory lies in the fact that it is
own view, it is the Holy See that is the international person. the space within which the state exercises supreme authority.
The Philippines has accorded the Holy See the

Q: Is nomadic tribe a State?
status of a foreign sovereign. The Holy See,
through its Ambassador, the Papal Nuncio, has A: No.
had diplomatic representations with the
Philippine government since 1957. This appears to Q: What comprises the Philippine Archipelago?
be the universal practice.
A:
PEOPLE
Article 1, 1987 Constitution
It is a group of individuals, both sexes, living together as a
community. They must be sufficient in number to maintain Article 1. “The national territory comprises the Philippine
and perpetuate themselves. A causal gathering (stranded), or archipelago, with all the islands and waters embraced
society of pirates would not constitute a state. therein, and all other territories over which the Philippines
has sovereignty or jurisdiction, consisting of its terrestrial,
Q: What are the different Meanings of “People” as used in fluvial and aerial domains, including its territorial sea, the sea
the Constitution? bed, the subsoil, the insular shelves, and other submarine
areas. The waters around, between and connecting the
A: islands of the archipelago, regardless of their breadth and
1
1. Inhabitants dimensions, form part of the internal waters of the
2
2. Electors Philippines.”
3
3. Citizens
4
4. Sovereign NOTE: This second sentence of Article I is not the Archipelago
Doctrine. This is only our restatement/reaffirmation of our
Q: Give examples of groups of people which cannot adherence to the Archipelago Doctrine simply because we are
comprise a State.
an archipelago consisting of 7,107 islands. It is essential for
A: our national survival that we adhere to the archipelago
principle.
1. Amazons - not of both sexes; cannot perpetuate
themselves Q: What are the components of the national territory?
2. Pirates - considered as outside the pale of law,
treated as an enemy of all mankind; "hostis humani
generis" A:
TERRITORY 1. Terrestrial Domain

2. Maritime Domain
Q: What is territory? 3. Aerial Domain
A: The fixed portion of the surface of the Terrestrial Domain

earth inhabited by the people of the
State. Q: What is terrestrial domain?
It is the fixed portion on the surface of the Earth on which the A: It is the land mass on which people live. It may be
State settles and over which it has supreme authority.
integrate, as in the case of Iran, or dismembered as in the
case of the United States, or it may be partly bounded by
water like Burma, or completely surrounded like Iceland, or
1
Article II, Section 15, 16; Article III, Section 2; Article XIII, may consist of several islands like the Philippine archipelago.
Section 1
2
Article VII, Section 4; Article XVI, Section 2; Article XVIII,
Section 25 NOTE: It includes all the lands and internal waters.
3
Article II, Section 4; Article III, Section 7.
4
The people organized collectively as a legal association is the state which Q: What comprises of the internal waters?
sovereignty resides. Preamble; Article II, Section 1.
A: It refers to bodies of water within the land mass, such as Maritime domain
rivers, lakes, canals, gulfs, bays and straits. The UNCLOS
defines internal waters as all waters on the landward side of It consists of the bodies of water within the land mass and
the baselines of the territorial sea. the waters adjacent to the coasts of the state up to a specific
territorial sea.
NOTE: They are those which do not form part of the maritime
domain. (e.g. rivers, lakes, canals, ports and harbors) Regime of the Territorial Sea
Q: May foreign vessel enter into the ports and harbors of Q: What is the so-called regime of territorial sea?
state invoking the right of innocent passage?
A: Defined according to what we call historic right or treaty
A. No. The right of innocent passage may only be invoked by limits theory, all the non-internal waters delineated by
foreign vessel when traversing territorial sea which is a part latitudes and longitudes specified in Article III of the Treaty of
of maritime domain. What may be invoked is the right of Paris of December 20, 1898, between the US, are territorial in
arrival under distress character. They have been regarded by the rest of the world
since Spain claimed them as such after its discovery of the
Q: What is a “man of war”? Philippines in 1521 and such recognition has vested historic
right in the US as successor in interest, to such territorial
A: Man of War refers to naval vessels/ submarines, which seas.
may invoke the right of innocent passage provided that they
navigate on the surface of the water and display their flags. NOTE: Under the UNCLOS, the territorial sea has a uniform
with of 12 miles measured from the low-water mark of the
The Right of Innocent Passage coast.
Q: What is the right of innocent passage? 1. Territorial Sea
A: Innocent passage means the right of continuous and  12 nautical miles from the shore beginning from the
5
expeditious navigation of a foreign ship through the territorial low water mark ;
sea of a State for the purpose of traversing that sea without  Comprises the marginal belt adjacent to the land
entering the internal waters or calling at a roadstead or port area or the coast includes generally the bays, gulfs,
facility. The passage is innocent as long as it is not prejudicial and straits which do not have character of historic
6
to the peace, good order or security of coastal State. waters
 Area where a foreign state may exercise its right of
Navigation through the territorial sea of a State for the innocent passage
purpose of traversing that sea without entering internal
waters, or of proceeding to internal waters, or making for the 2. Contiguous Zone (24-Nautical Miles Contiguous Zone)
high seas from internal waters, as long as it is not prejudicial
to the peace, good order or security of the coastal state.  Extends up to 24 nautical miles from the shore
beginning from the low water mark or territorial sea.
Q: What is the right of transit passage?  Importance: (a) to prevent infringement of the
State’s fiscal, immigration or sanitary laws within its
A: It has the same concept with the right of innocent passage. territory or its territorial sea; (b) to punish such
The only difference between the two rights is that the right of infringement
innocent passage may be invoked in case of passage through  Accordingly, the coastal state may exercise limited
a strait (strait is a narrow body of water separating 2 major jurisdiction over the contiguous zone, to prevent
islands). infringement of customs, fiscal, immigration or
sanitary laws.
Arrival under stress
3. Exclusive Economic Zone (200-Mile EEZ or the
Arrival under stress or involuntary entrance may be due to Patrimonial Sea)
lack of provisions, unseaworthiness of the vessel, inclement
weather, or other case of force majeure, such as pursuit by  200 nautical miles from the shore beginning from
pirates. the low water mark or the baselines
5
Low water mark is the mark of water on the shore at low tide
6
Historic waters are legally part of internal waters of the State
 The State has the exclusive jurisdiction to exploit the c) Slave trade ships, any ship engage in unauthorized
natural resources in seabed, subsoil, or other broadcasting; and
submarine areas. So that if the coastal State was d) Ships without nationality, or flying a false flag or refusing
notable to exploit the natural resources, foreign to show its flag when required to do so.
states may not exploit the same.
Q: What is “Flag State?
Q. What is the reason why the measurement shall start from
the low water mark? A: State whose nationality (Ship’s registration) the ship
possesses, for its nationality which gives the right to fly
A. If the measurement will start from high tide, the territorial country’s flag
sea, contiguous zone and exclusive economic zone will
recede. The result will be the area of the international waters Doctrine of Hot Pursuit
will be wider. Thus the Philippines cannot exercise dominion
over it. Q: What is the Doctrine of Hot Pursuit?
4. Continental Shelf A: The pursuit of a foreign vessel undertaken the coastal

State which has “good reason to believe that the ship has
 Comprises the seabed and subsoil of the submarine violated the laws and regulations of that State” provided that
areas that extend beyond its territorial sea the following elements are present:
throughout the natural prolongation of its land
territory to the outer edge of the continental margin 1. Pursuit commences from internal water, territorial
or the distance of 200 nautical miles beyond the sea, contiguous zone of the pursuing State, and may
baselines from which the breadth of the territorial not be continued outside if the pursuit has not been
sea is measured if the edge of the continental interrupted;
margin does not extend up the distance. 2. It is continuous and unabated;
3. Pursuit conducted by a warship, military aircraft, or
5. High Seas government ships authorized for the purpose
 Is “res commones” – open to: Thus, if an offense is committed by a foreign merchant vessel
a. Navigation within the territorial waters of the coastal state, its own
b. Fishing vessels may pursue the offending vessel into the open sea
c. Scientific research and exploration and upon capture bring it back to its territory for punishment.
d. Mining Yet, to be lawful, the pursuit must have begun before the
e. Laying of submarine cables or pipelines offending vessel has left the territorial sea, or the contiguous
f. Other human activities in the open sea and zone of the coastal state; the pursuit must be continuous and
ocean floor unabated; and it ceases as soon as the ship being pursued
enters the territorial sea of its own or of a third state.
This is also treated as res communes or res nullius, and thus,
are not territory of the any particular state. The traditional Q: When does the pursuit ceases?
view is freedom of the high seas- they are open and
available, without destruction, to the use of all States for the A. The pursuit ceases when as soon as the foreign ship being
purpose state above. pursued enters the territorial sea of its own or that of a third
State.
Q: What is the “Freedom of Navigation”?
Q: Distinguish the flag state and the flag of convenience
A: It is the right to sail ships on seas which is open to all
States and land-locked countries. A. Flag state means a ship has the nationality of the flag of
the state it flies, but there must be a genuine link between
G.R.: Vessels sailing on the high seas are subject only to the the state and the ship (Article 91 of the Convention on the
international law and law of the flag state Law of the Sea).
XPNS: Flag of convenience refers to a state with which a vessel is

registered for various reasons such as low or non-existent
a) Foreign merchant ships violating the laws of a coastal taxation or low operating costs although the ship has no
State; genuine link with the state.
b) Pirate ships;

mass destruction may not be placed in orbit around the
United Nation’s Convention on the Law of the Seas earth.
Q: What are the different modes of acquisition of territory?
It changes the extent of territorial seas from 3 nautical miles
to 12 nautical miles from the shore of the sea beginning from 1. Discovery and occupation of a territory not subject to the
7
the low water mark. controversy of any other State;
2. Prescription by which title is acquired by effective or
8
Q: What is the 3 Nautical Miles Limit Rule? occupation over a period of time;
9
3. Cession which is the transfer territory by treatyl
10
A: It is also known as the “CANON SHOT RULE” because it is 4. Conquest
the maximum effective range of a canon during the time 5. Accretion which is the natural process of land formation
11
before the UNCLOS was held. resulting in the increase of territory.
Aerial Domain Discovery and Occupation
Q: What is Air Space? Q: What is the Doctrine of Effective Occupation?
A: It is the airspace above the high seas is open to all aircraft, A: Under this doctrine, discovery alone is not enough. Mere
just as the high sea is accessible to ships of all States. The discovery gives only an inchoate right to the discoverer. For
State whose aerial space is violated can take measure to title to finally vest, discovery must be followed by effective
protect itself, but it does not mean that the States have occupation in a reasonable time and attestation of the same.
unlimited right to attack the intruding aircraft.
It is the effective exercise of sovereignty over a territory
It is the airspace above the territorial domain and the which is terra nullius or not under the sovereignty of another
maritime and fluvial domain of the state, to an unlimited state.
altitude but not including outer space.
Accordingly, the nationals of the discovering state, in its
Q: May foreign aircraft pass Philippines’ aerial domain name or by its authority, must first take possession of the
invoking the right of innocent passage? territory. Thereafter, they must establish thereon an
organization or government capable of making its laws
A: No. Every State has the exclusive jurisdiction over its aerial respected.
domain. There is no such right as innocent passage in aerial
domain. There must be treaty/agreement allowing such Q: What is effective occupation?
passage.
A: It means continued display of authority which involves 2
THE OUTER SPACE elements:
The rules governing high seas also apply to outer space, 1. Intention and will to act as sovereign;
which is considered as res communes. States have the right to 2. Some actual exercise or display of such authority.
launch satellites in orbit over the territorial air space of the
other state. NOTE: Discovery alone merely creates an inchoate right; it
must be followed by occupation.
Q: Who owns the outer space?
Prescription
A: It is “res commones.”
It is the acquisition of sovereignty over a territory through
NOTE: ASTRONAUTS are ambassadors of humankind under continuous and undisturbed exercise of sovereignty over it
the theory that there are other beings in outer space. Thus
every State has liability to render assistance to an astronaut
7
under distress. 8
Discovery and Occupation which are terra nullius (land belonging to no one)
Prescription; Territory may also be acquired through continuous and
uninterrupted possession over a long period of time.
The Outer Space Treaty 9
Cession by Treaty; Examples are Treaty of Paris, treaty between France and
US ceding Louisiana to the latter and treaty between Russia and US ceding
Outer space is free for exploration and use by all States; it Alaska to the latter
10
cannot be annexed by any State; and it may be used Conquest or Subjugation (conquistadores)—this is no longer recognized,
inasmuch as the UN Charter prohibits resort to threat or use of force against
exclusively for peaceful purposes. Thus, nuclear weapons of the territorial integrity or political independence of any state
11
Accretion; It is the increase in the land area of the State, either through
natural means, or artificially, through human labor.
during such period as is necessary to create under the 1932 that the U.S. Government would not recognize any
influence of historical development the general conviction territorial or administrative changes the Japanese might
that the present condition of things is in conformity with the impose upon China. The Stimson Doctrine was echoed in
international order. March 1932 by the Assembly of the League of Nations, which
unanimously adopted an anti-Japanese resolution
Q: For prescription to set in, what is the period required by incorporating virtually verbatim the Stimson Doctrine of non-
the law? recognition. However, as the Secretary of State later realized,
he had at his disposal only "spears of straws and swords of
A: In international law, there is no rule of thumb as to the ice." In short order, Japanese representatives simply walked
length of time for acquisition of territory through out of the League, and the Kwangtung Army formalized its
prescription. In this connection, consider the Grotius conquest of Manchuria by establishing the puppet state of
Doctrine of immemorial prescription, which speaks of Manchukuo under former Chinese emperor Pu-Yi. When war
uninterrupted possession going beyond memory. between Japan and China broke out following a minor clash
between military units at the Marco Polo Bridge in 1937, the
Q: What are the 2 parts of the national territory? impotence of the "Stimson Doctrine" became even more
apparent. In other words, this document basically said that
A: the US was not to recognize any administrative or territorial
1. The Philippine archipelago with all the islands and waters changes that Japan imposed upon China. This was also
embraced therein; and recognized when speaking of the Soviet Union taking over
2. All other territories over which the Philippines has three Baltic countries. It was the idea of forced expansionism
sovereignty or jurisdiction prevention.
Cession Accretion
It is a bilateral mode of acquisition, the other modes being This is the increase in the land area of the State, either
unilateral. It is derivative mode since its validity depends on through natural means or artificially through human labour.
the valid title of the ceding state; the cessionary state cannot The Sector Principle, applied in the Polar region of the Arctic
have more rights than what the ceding state possessed. and Antartica.
Cessation may be voluntary, through a treat of sale or Sector Principle

treaty of donation. Cessation may also be involuntary or
forced. The principle on which claims to territory in the Arctic and
Antarctic are made. The territory is shared out in the form of
Conquest arbitrary sectors, each one having an apex at the poles and
including an outer area bounded by the coast. The principle
has worked well in establishing control of the Arctic ice, but
This mode of acquisition is no longer recognized, inasmuch as
there are disputed claims over the land mass of the Antarctic
the UN Charter prohibits resort to threat or use of force
which may possibly yield mineral resources.
against the territorial integrity or political independence of
any State. Thus, under the Stimson Doctrine, which forbade
Philippine Archipelago
recognition of any government set up through external
aggression, conquest was not considered as a valid mode of
1. Treaty of Paris, December 10, 1898 Cession of the
acquiring territory.
Philippine Islands by Spain to the United States;
2. Treaty between Spain and US at Washington,
The Stimson Doctrine
November 7, 1900—inclusion of Cagayan, Sulu and
Sibuto;
The policy of expansionism in China pursued by the 3. Treaty between US and GB, January 2, 1930—
autonomous Kwangtung Army of Japan accelerated in the inclusion of Turtle and Mangsee Islands
late 1920s and early 1930s and became a major concern of
the U.S. Government. On September 18, 1931, Japanese Q: What are the other territories over which the Philippines
soldiers guarding the South Manchurian Railway blew up part has sovereignty or jurisdiction?
of the track in order to manufacture an excuse to seize
Manchuria proper. Secretary of State Henry L. Stimson A:
reacted to what he regarded as a violation of international
law as well as treaties that the Japanese Government had 1. Batanes—(1935 Constitution);
signed. Since calls for a cessation of hostilities between China
and Japan failed and President Herbert Hoover had rejected
economic sanctions in principle, Stimson declared in January
2. Those contemplated under Article I, 1973 Treaty of Paris in 1898. And that did not include the Spratlys
Constitution—belonging to the Philippines by Group of Islands yet. Under the treaty, the islands that were
historic right or legal title; ceded by Spain were identified—the main islands—Luzon,
3. PD 1596, June 11, 1978-- constituting the Spratly’s Visayas and Mindanao. Clearly, it did not include the Spratlys
Group of Islands as a regular municipality claiming it Group of Islands.
the Municipality of Kalayaan, placing it under the
Province of Palawan Spratlys Group of Islands was only discovered sometime in
the 1950’s by a Filipino, Tomas Cloma. The latter waived his
Archipelagic Doctrine rights over the islands in favor of the Philippine Government.
In effect, the government stepped into the shoes of the
Q: What is the Archipelagic Doctrine? discoverer. By then President Marcos, what he did the
moment Tomas Cloma waived his rights over the Spratlys
A: It emphasizes the unity of the land and waters by defining Group of Islands, is to have the islands immediately occupied
an archipelago as group of islands surrounded by waters or a by Philippine troops. He then issued PD 1596, constituting the
body of waters studded with islands. Spratlys Group of Islands as a regular municipality claiming it
the Municipality of Kalayaan placing it under the Province of
Accordingly, all the waters around, between and connecting Palawan. And then he had the elections immediately held in
the island of the archipelago, regardless of their breadth or the islands so from that time on until now, we continue to
dimension, are to be treated as internal waters. hold elections there. The Philippine exercises not only
jurisdiction but also sovereignty over the Spratlys Group of
Note: An imaginary single baseline is drawn around the Islands, yet it is not part of the Philippine Archipelago.
islands by joining appropriate points of the outermost islands Geographically, it is too far away from the Philippine
of the archipelago with straight lines and all islands and Archipelago.
waters enclosed within the baseline form part of its territory.
On May 20, 1980, the Philippines registered its claim with the
Correlate this doctrine to right of innocent of passage, right of UN Secretariat. The Philippine claim to the islands is justified
arrival under stress and UNCLOS requiring the designation of by reason of history, indispensable need, and effective
archipelagic seaways so that foreign vessels may pass through occupation and control. Thus, in accordance with the
an archipelago. international law, the Spratlys Group of islands is subject to
the sovereignty of the Philippines.
Q: What are the purposes of this doctrine?
Q: Do you consider the Spratlys group of Islands as part of
A: our National Territory?
a. Territorial Integrity A. Yes. Article I of the Constitution provides: “The national

b. National Security territory comprises the Philippine archipelago, x x x, and all
c. Economic reasons other territories over which the Philippines has sovereignty or
jurisdiction, x x x.” The Spratlys Group of islands falls under
It is said that the purpose of archipelagic doctrine is to the second phrase “and all other territories over which the
protect the territorial integrity of the archipelago. Without it, Philippines has sovereignty or jurisdiction”. It is part of our
there would be “pockets of high seas” between some of our national territory because Philippines exercise sovereignty
islands and islets, thus foreign vessels would be able to pass (through election of public officials) over Spratlys Group of
through these “pockets of seas” and would have no Islands.
jurisdiction over them.
Q: What was the basis of the Philippines’ claim over the
The Spratlys Group of Islands Spratlys?
Q: Do you consider the Spratlys Group of Islands as part of A. Through discovery of Tomas Cloma and occupation.
Philippine Archipelago?
SOVEREIGNTY
A. Spratlys Group of Islands is not part of the Philippine
Archipelago because it is too far away from the three main Q: What is sovereignty?
islands of the Philippines. It is found, geographically, almost in
the middle of the South China Sea. It is not part of the A: It is the supreme legal authority in relation to the subjects
Philippine Archipelago. Historically, when we talk about within its territorial domain.
Philippine Archipelago, we refer to those islands and waters
that were ceded by the Spain to the United States by virtue of

It means freedom from outside control in the conduct of its
foreign and internal affairs. SOVEREIGNTY DOMINION
Sovereignty is the right to Dominion, or dominium, is
NOTE: In the international sphere, there is the “co-existence exercise the functions of a the capacity of the State to
of sovereignties under the conditions of independence and State to the exclusion of any own or acquire property such
equality. The sovereignty of one State ends where the other State. It is often as lands and natural
sovereignty of another State begins. referred to as the power of resources.
imperium, which is defined
Q: How then is state sovereignty defined in international as the government authority
law? possessed by the State.
A: It is the right to exercise in a definite portion of the globe Q: Is sovereignty absolute?

the functions of a state to the exclusion of any other State.
A: While sovereignty has traditionally been deemed absolute
NOTE: It is important to view sovereignty in international law and all encompassing on the domestic level, it is subject to
as the sovereignty of one State in relation to the sovereignty restrictions and limitations voluntarily agreed to by the
of another State in conditions of co-existence. Philippines, expressly or impliedly, as a member of the Family
of Nations.
Sovereignty in relations between states signifies
independence. Q: What are the limitations of the sovereignty?
Q: What are the kinds of sovereignty? A: So these are the limitations of the sovereignty in the field
of international relations:
A:
1. limitations brought about by the entry into treaties
a. Legal- sovereignty is the authority which has the with other states;
power to issue final commands. In our country, the 2. limitations brought about by joining the Family of
Congress is the legal sovereign. Nations (Tañada vs. Angara GR. No. 118295 May
b. Political- Sum total of all the influences of a State, 1997)
legal and non-legal which determine the course of
law NOTE: The Constitution does not envision a hermit type
c. Internal- It refers to the power of the State to isolation of the country from the rest of the world.
control its domestic affairs. It is the supreme power
over everything within its territory. By the doctrine of incorporation, the country is bound
d. External- Also known as Independence; which is by generally accepted principles of international law,
freedom from external control. It is the power of which are considered to be automatically part of our
State to direct its relations with other States own laws.
3
Q: What are the characteristics of sovereignty?PI A The constitutional policy of a "self-reliant and
independent national economy" does not
A: necessarily rule out the entry of foreign
1. permanent, investments, goods and services. It contemplates neither
2. exclusive, "economic seclusion" nor "mendicancy in the international
3. comprehensive, community" (Tañada vs. Angara GR. No. 118295 May 1997).
4. absolute,
5. indivisible, Pacta Sunt Servanda
6. inalienable, and
7. imprescriptible Q: What is the principle of pacta sunt servanda?
NOTE: These characteristics are only true in DOMESTIC A: The international agreements must be performed in good
SPHERES but NOT in with respect to INTERNATIONAL LAW. faith. A treaty engagement is not a mere moral obligation but
creates a legally binding obligation on the parties. A state
Q: Distinguish sovereignty vs. dominion. which has contracted a valid international agreement is
bound to make in its legislation such modification as may be
A: necessary to ensure fulfillment of the obligation undertaken.
Accordingly, States may not advance the provisions of their
own Constitution as well as the act of their own laws in order

not to comply with their obligations under a treaty. States are
supposed to make the necessary modifications in their EFFECTS OF CHANGE OF SOVEREIGNTY
obligations under a treaty.
Q: What are the effects in Change of Sovereignty?
A treaty engagement is not a mere moral obligation
but creates a legally binding obligation on the parties. A A: Political laws are abrogated; municipal laws remain in
state which has contracted valid international obligations is
force
bound to make in its legislations such modifications as may
be necessary to ensure the fulfillment of the obligations
Illustration: When the Spanish ceded the Philippines to the
undertaken. By their inherent nature, treaties really limit or US under the Treaty of Paris (December 10, 1989)– The effect
restrict the absoluteness of sovereignty. By their voluntary
of the change of sovereignty of the former sovereign are not
act, nations may surrender some aspects of their state power
merely suspended but abrogated. During the American
in exchange for greater benefits granted by or derived from a occupation, the Spanish Civil Code continued to take effect.
convention or pact. After all, states, like individuals, live with
The US did not modify it.
coequals, and in pursuit of mutually covenanted objectives
and benefits, they also commonly agree to limit the exercise
Q: Give the effects of a change of sovereignty on municipal
of their otherwise absolute rights. Thus, treaties have been laws.
used to record agreements between States concerning such
widely diverse matters as, for example, the lease of naval
A:
bases, the sale or cession of territory, the termination of war,
the regulation of conduct of hostilities, the formation of 1. Laws partaking of a political complexion are abrogated
alliances, the regulation of commercial relations, the settling
automatically.
of claims, the laying down of rules governing conduct in
2. Laws regulating private and domestic rights continue in
peace and the establishment of international organizations. force until changed or abrogated.
The sovereignty of a state therefore cannot in fact and in
reality be considered absolute (Tañada v. Angara).
Q: What are the effects of Belligerent Occupation?
Doctrine of Auto-Limitation
A: No change in sovereignty.
Q: What is the doctrine of auto-limitation?
POLITICAL LAWS NON-POLITICAL JUDICIAL
A: It is the doctrine where the Philippines adhere to principles LAWS DECISIONS
of international law as a limitation to the exercise of its Suspended subject Non affected: They are valid
sovereignty. to revival under during the
the principle of jus a. Non-political occupation and
Accordingly, we agreed to surrender some of our sovereign postilimini upon laws are laws even beyond it,
rights in exchange for greater benefits that we may derive by the end of the intended to except those of
entering into treaties or by joining the Family of Nations. occupation; govern the political
relations of complexion, which
NOTE: When the Philippines joined the United Nations as one individuals as is automatically
of its 51 charter members, it consented to restrict its among annulled upon the
sovereign rights under the "concept of sovereignty as auto- themselves; restoration of the
limitation. b. Political laws legitimate
are laws authority.
Lex posterior derogate priori intended to
govern the
Q: What is the doctrine of Lex posterior derogate priori? relations
between the
A: In States where the constitution is the highest law of the inhabitants
land, both statutes and treaties may be invalidated if they are and the state.
in conflict with the Constitution (Secretary of Justice vs. This applies only
Lantion, G.R. No. 139465, January 18, 2000). to civilians and not
to members of the
armed forces,
except laws on
treason because
treason is a
breach of

allegiance to the XPN: Law on TREASON (breach of allegiance to sovereign as
sovereign. shown by the external acts of giving aid to the enemies)
although it is a specie of political law. It is a species of political
Note: Since the political laws were merely suspended, they law yet it remained valid and effective because it is a war
were subject to revival upon the return of the sovereign offense
under the Doctrine of Jus Postiliminum. (post means
“beyond”; limin means “boundary”) Treason is an offense that can only be committed in times of
war. What is really punished in treason is not the act of giving
Principle of State Continuity aid and comfort to the enemies in times of war.
Q: What is the principle of State Continuity? NOTE: As for judicial decisions the same are valid during the
occupation and even beyond except those of a political
A: It is the principle which states that the disappearance of complexion, which are automatically annulled upon the
any of the elements of statehood would cause the extinction restoration of the legitimate authority.
of the State, but mere changes as to one or more of those
elements would not necessarily, as a rule, bring about such Only those decisions of political complexion automatically fall
extinction. to the ground upon the return of the US (for example) but in
common crimes like rape, robbery, kidnapping, judgment
Also, the identity of the State in international law is not remains valid even if they were rendered in a Japanese
affected by changes in the government, whether brought created court.
about legally or illegally by revolution or coup d’etat.
Q: What is the effect of change of sovereignty when the
Q: During the Japanese Occupation, was there a change in Spain ceded the Philippines to the U.S.?
the sovereignty during such period (1941-1945)?
A: The effect is that the political laws of the former sovereign
A: No. The sovereignty over the country remained with the are not merely suspended but abrogated. As they regulate the
Americans because the Americans never ceded the relations between the ruler and the ruled, these laws fall to
Philippines to Japan. What the Japanese military occupants the ground ipso facto unless they are retained or re‐enacted
performed there were not sovereignty but acts of by positive act of the new sovereign. Non‐political laws, by
sovereignty. You have to distinguish between sovereignty contrast, continue in operation, for the reason also that they
itself and acts of sovereignty because the characteristics of regulate private relations only, unless they are changed by
sovereignty are absolute, indivisible, imprescriptible and the new sovereign or are contrary to its institutions.
comprehensive. Sovereignty over the Philippines remained in
the Philippines although the ones that performed the acts of Q: What is the effect of Japanese occupation to the
sovereignty were Japanese, the occupants. sovereignty of the U.S. over the Philippines?
Doctrine of Jus Postiliminum A: Sovereignty is not deemed suspended although acts of

sovereignty cannot be exercised by the legitimate authority.
Q: What is the doctrine of Jus Postilliminum? Thus, sovereignty over the Philippines remained with the U.S.
although the Americans could not exercise any control over
A: It states that at the end of the occupation, when the the occupied territory at the time. What the belligerent
occupant is ousted from the territory, the political laws which occupant took over was merely the exercise of acts of
have been suspended shall automatically become effective sovereignty.
again (Those taken beyond boundary will lose their status but
will be regained upon return to its boundary.) Q: Distinguish between Spanish secession to the U.S. and
Japanese occupation during WWII regarding the political
NOTE: The rule that political laws are merely suspended does laws of the Philippines.
NOT APPLY to the members of the Armed Forces who
remained subjects of Articles of War as the National Defense A: There being no change of sovereignty during the
Act as well as the Articles of War, even during the Japanese belligerent occupation of Japan, the political laws of the
occupation. Such rule applies only to the CIVILIANS in the occupied territory are merely suspended, subject to revival
occupied territory (Ruffy v. Chief of Staff). under jus postliminiumupon the end of the occupation. In
both cases, however, non‐political laws, remains effective.
GR: Political laws were suspended during the Japanese
occupation. Q: Was there a case of suspended allegiance during the
Japanese occupation?

1. Foreign states, heads of state, diplomatic
A: None. Adoption of the theory of suspended allegiance representatives, and consuls to a certain degree;
would lead to disastrous consequences for small and weak 2. Foreign state property, including embassies, consulates,
nations or states, and would be repugnant to the laws of and public vessels engaged in non-commercial activities;
humanity and requirements of public conscience, for it would 3. Acts of state;
allow invaders to legally recruit or enlist the quisling 4. Foreign merchant vessels exercising the rights of
inhabitants of the occupied territory to fight against their innocent passage or involuntary entry, such as the arrival
own government without the latter incurring the risk of being under stress;
prosecuted for treason. To allow suspension is to commit 5. Foreign armies passing through or stationed in its
political suicide. territory with its permission
6. Such other persons or property, including organizations
Effect of Revolutionary Government like the United Nations, over which it may, by
agreement, waived jurisdiction
Q: What is the effect of a revolutionary government?
Q: Distinguish sovereignty and independence.
A: It is bound by no constitution. However, it did not
repudiate the Covenant or Declaration in the same way it A:
repudiated the Constitution. As the de jure government, the
revolutionary government could not escape responsibility for SOVEREIGNTY INDEPENDENCE
the State’s good faith compliance with its treaty obligations
under international law. During the interregnum when no It is the supreme power It is the external
constitution or Bill of Rights existed, directives and orders of the state by which manifestation of
issued by government officers did not exceed the authority the State is governed. sovereignty, whereby
granted them by the revolutionary government. The the State is free from
directives or orders should not have also violated the foreign control.
Covenant or the Declaration. Internal and external
JURISDICTION
ACTS OF THE STATE
Q: What is Jurisdiction?
An act of state is done by the sovereign power of a country,
or by its delegate, within the limits vested in him. It cannot be
A: Jurisdiction is the manifestation of sovereignty. The
questioned or made the subject of legal proceedings in a
jurisdiction of the state is understood as both its authority
court of law.
and the sphere of the exercise of that authority.
Note: Within particular reference to Political Law, an act of
Q: What are the kinds of jurisdiction?
State is an act done by the political departments of the
government and not subject to judicial review. An illustration
A:
is the decision of the President, in the exercise of his
diplomatic power, to extend recognition to a newly-
1. Territorial jurisdiction- authority of the state to have all
established foreign State or government.
persons and things within its territorial limits to be
completely subject to its control and protection
Q: When is act of person considered “State action” covered
2. Personal jurisdiction- authority of the state over its
by the Constitution?
nationals, their persons, property, and acts whether
within or outside its territory (e.g. Art. 15, CC)
A: In constitutional jurisprudence, the act of persons distinct
3. Extra-territorial jurisdiction- authority of the State over
from the government are considered “state action” covered
persons, things, or acts, outside its territorial limits by
by the Constitution:
reason of their effect to its territory
1. When the activity it engages in is a “public function”;
Q: What are the exemptions to the territorial jurisdiction
2. When the government is so significantly involved
rule?
with the private actor as to make the government
responsible for his action; and
A:
3. When the government has approved or authorized
the action.
Q: Distinguish between sovereignty from independence?
A: Exempt are:

GOVERNMENT 5. Both government and legislature are possessed of
Forms of government control devices which each can demand of the other
immediate political responsibility. In the hands of the
State is an abstract being that can only act through its agent. legislature is the vote of non-confidence (censure)
Since the government is a mere agent and the State is the whereby government may be ousted. In the hands of
principal, any good thing performed by the government is the government is the power to dissolve the
always attributable to the Sate. legislature and call for new elections.
It must be organized, exercising control over and capable of NOTE: In international law, the form of government does not
maintaining law and order within the territory. It can be held really matter. Yet, with respect to the Constitution, the kind
internationally responsible for the acts of the inhabitants. The of government matters.
identity of the state is not affected by changes in the
government. Article II
Q: What if the government performs an act that proves to Section 1. The Philippines is a democratic and republican
be harmful to the people, will you attribute that to the State. Sovereignty resides in the people and all government
State? authority emanates from them.
A: No. The mandate of the State to the government, as the Functions of Government
agent, is for the government to promote the welfare of the
people; not to harm the people. In such a case, the Q: What are the functions of Government?
government has defied its mandate.
A:
Consequently, there was a revolution, which came about
upon the behest of the State itself because the agent is no 1. Governmental (Constituent)--are the compulsory
longer true to its mandate. It came about upon the request if functions which constitute the very bonds of society
the state itself because the agent is no longer true to its
mandate. This is actually the justification for revolutions. This Example: The definition and punishment of crimes,
development is known as Direct State Action. administration of justice in civil cases, administration of
political duties, dealings of the state with foreign powers,
Q: Give the distinction between a government and determination of contractual rights between individuals, the
administration? regulation of transmission of property, keeping of order
A: Government is the institution through which the state 2. Proprietary (Ministerial)—optional functions of the
exercises power. Administration consists of the set of people government for achieving a better life for the
currently running the institution. community
Q: Give the distinction between the presidential and Example: Agrarian Reform- this is in reality a ministrant
parliamentary form of government? function but was made constituent by the constitution
A: The presidential form of government’s identifying feature Note: Distinction of function is no longer relevant because
is what is called the “separation of powers.” The essential the Constitution obligates the State to promote social justice
characteristics of a parliamentary form of government are: and has repudiated the laissez faire policy. However, in
Shipside Incorporated v. CA, the nature of the function of the
1. The members of the government or cabinet or the BCDA was a factor to determine the locus standi of the
executive arm are, as a rule, simultaneously members Government.
of the legislature;
2. The government or cabinet consisting of the political Parents Patriae
leaders of the majority party or of a coalition, who are
also members of the legislature, is in effect a Q: What is the doctrine of parents patriae?
committee of the legislature;
3. The government or cabinet has a pyramidal structure A: It posits that it is the government which acts as guardian of
at the apex of which is the Prime Minister or his the rights of the people and may initiate legal actions for and
equivalent; in behalf of a particular individual.
4. The government or cabinet remains in power only for
so long as it enjoys the support of the majority of the Q: Is Bases Conversion Development Authority (BCDA)
legislature; exercising constituent or ministrant function?

The rule is that when the new government was organized by
A: While public benefit and public welfare, particularly, the virtue of constitutional reform duly ratified in a plebiscite,
promotion of the economic and social development of the obligation of the replaced government are completely
Central Luzon, may be attributable to the operation of the assumed by the former. Conversely, when the new
BCDA, yet it is certain that the functions performed by the government was established through violence, as by
BCDA are basically proprietary in nature. The promotion of revolution, it may lawfully reject the purely personal or
economic and social development of Central Luzon, in personal obligations of the predecessor government but not
particular, and the country's goal for enhancement, in those contracted by but in ordinary course of official
general, do not make the BCDA equivalent to the business.
Government. Other corporations have been created by
government to act as its agents for the realization of its De Jure and De Facto Government
programs, the SSS, GSIS, NAWASA arid the NIA, to count a
few, and yet, the Court has ruled that these entities, although Q: Distinguish between a de jure and de facto government?
performing functions aimed at promoting public interest and
public welfare, are not government-function corporations A:
invested with governmental attributes. It may thus be said
that the BCDA is not a mere agency of the Government but a DE JURE DE FACTO
corporate body performing proprietary functions (Shipside A De Jure government De Facto government
Incorporated v. CA, G.R. No. 143377, February 20, 2001) (government of law) is a (government of fact) has no
government that has a lawful title but it is in actual
Vigilantism lawful title although it may possession of the machinery
not be in possession of the of the state.
Q: What is vigilantism? machinery of the state but
the point is it has the lawful
A: It is a situation wherein people take the law in their hands title.
for the promotion of peace and order in the community. This
is not allowed because it is a violation of the constituent Q: What are the 3 kinds of de facto government?
function of the government.
A:
Q: What if the government performs an act that proves
harmful to the people, will you attribute that to the state? 1. By insurrection – that which is established by the
inhabitants who rise in revolt against and depose the
A: No. The mandate of the state to the government, as its legitimate regime.
agent, is to promote the welfare of the people and not to
harm them. State as an ethical being and an abstract concept Example: the Commonwealth established by Oliver Cromwell
cannot commit any wrong. which supplanted the monarchy under Charles I of England
Q: What is the mandate of the Philippine Government? 2. By government of paramount force - that which is
established in the course of war by invading forces of one
A: Art. II, Sec. 4 - "The prime duty of the Government is to belligerent to the territory of other belligerent, the
serve and protect the people…" Thus, whatever good is done government of which is displaced.
by government -attributed to the State; whatever harm is
done by the government - attributed to the government It is established by one belligerent in the course of war in
alone, not the State the territory of the other belligerent which it was able to
occupy and which was supported by its military might.
Example: The Japanese occupation in the government in the

Effect of change of government Philippines which replaced the Commonwealth during WW II.
This is the one headed by President Jose Laurel. What
Q: What is the effect of change of government? belligerent was that? Japan. In the course of war in the
territory of the other belligerent—what was the other
A: It is well settled that as far as the rights of the predecessor belligerent? The United States. What territory was that? The
government are concerned, they are inherited in toto by the Philippines. Accordingly, the Philippines was still a colony of
successor government. Regarding obligations, distinction is the US at that time under the Common wealth government
made according to the establishment of the new headed by President Manuel Quezon who went to exile
government. during the Second World War. He went on exile in Europe. It
was a government in exile. In fact, it was in New York, USA

where President Quezon died. So he was succeeded by HELD: We will no longer inquire into the motives of the
Osmeña (Vice President). This is also the reason why when people in going to EDSA. The facts were: because of the
Mc Arthur returned to the Philippines, the Leyte landings of magnitude of the people who were in EDSA, Marcos fled to
October 20, 1944, it was Osmeña who’s with him. In other Hawaii, so that the Cory government was able to take
words, there are 2 governments then. The Japanese-created effective control of the machinery of the State without
led by President Laurel and the Commonwealth government resistance from the people. Furthermore, the international
led by President Quezon. The De Jure government was the community has recognized the Cory Government. Hence,
commonwealth government-it has the lawful title but it was there can be no more question as to the de jure status of the
not in actual possession of the machinery of the State at that said government.
time it went to exile. The Japanese government was the de
facto-a government in fact. It has no lawful title but at the The Aquino government was the result of a successful
time it was in actual possession of the machinery of the state. revolution by the sovereign people-it was installed through a
direct exercise of the power of the Filipino people, in defiance
3. By cession – that which is established by the inhabitants of the provisions of the 1973 Constitution. The legitimacy of a
of a state who cedes there from the parent government government sired by a successful revolution by people power
without overthrowing the parent government. is beyond judicial scrutiny; such government automatically
orbits out of the constitutional loop.
Example: The confederate government during the American
Civil War however did not seek to depose the union Estrada v. Desierto
government.
Desierto argues that the legitimacy of Arroyo’s assumption to
During the US Civil War of 1861-1865, the Southern states the presidency is a political question, and invokes the
(whose economy was based on cotton) were opposed to the ruling in the Lawyers League case.
abolitionist policy of President Lincoln, the emancipation of
the blacks of the Negros. If you emancipate the Negros who HELD:
will work on their cotton fields. Thus, the separate from the
American Union and organized the Confederate States of Arroyo’s government is not revolutionary in character. The
America. They elected their own President- Jefferson Davis. oath she took is the oath under the 1987 Constitution.
Indeed, she has stressed that she is discharging the powers of
NOTE: The Common denominator of these 3 kinds of de facto the presidency under the authority of the 1987 Constitution.
governments is that they all lose. For while they were they
are in possession of the machinery of the state but eventually Q: Is the legitimacy of a government a justiciable question?
they lost.
A: No. It is only the People of the Philippines who may be the
Cory Aquino Admininistration judge of its legitimacy. Since such government is accepted by
the people, it is not merely a de facto government but also a
Initially it was de facto because it was created extra- de jure government. Moreover, the community of nations has
constitutionally. Its creation was not in accordance with the recognized its legitimacy.
provisions of the then prevailing 1973 Constitution. But later
on, it became de jure through acquiescence of the people What are the legal distinctions between EDSA I and EDSA II?
and also the recognition extended by the international
community. As the Court held, we will no longer inquire into EDSA I EDSA II
the motives of the people in going to EDSA then. The facts Involves the exercise Involves the exercise of
were because they were there, Marcos fled to Hawaii. And of the people power the people power of
the Cory government was able to take effective control of the of revolution which freedom of speech and
machinery of the State with no substantial resistance to its overthrows the freedom to assemble, to
authority. Also, the international community has already whole government. petition the government
given it recognition. for redress of grievances
which only affected the
Lawyer’s League for a better Philippines v. Aquino Office of the President.
Extra-constitutional Intra-constitutional and
Oliver Lozano filed a petition before the Supreme Court and the legitimacy of the resignation of the
questioning the legitimacy of the Cory government. the new government sitting President that it
According to the petition, most of the people who went to that resulted from it caused and the
EDSA are not really serious in overthrowing the Marcos cannot be the subject succession of the VP as
government. of judicial review. President are subject to
judicial review.

Presented a political Involves legal questions. Marshall Islands and the Federated States of Micronesia
question. formerly part of the U.S. Administered Trust Territory of the
Pacific Islands.)
GOVERNMENT OF THE PHILIPPINES
The associated state arrangement has usually been used as a
Q: What is the “Government of the Philippines”? transitional device of former colonies on their way to full
independence.
A: It is “the corporate governmental entity through which
the functions of the government are exercise throughout the Does the MOA‐AD violate the Constitution and the laws?
Philippines, including, save as the contrary appears from the
context, the various arms through which political authority is A: Yes. The provisions of the MOA indicate that the Parties
made effective in the Philippines, whether pertaining to the aimed to vest in the BJE the status of an associated state or,
autonomous regions, the provincial, city municipal, or at any rate, a status closely approximating it.
barangay subdivisions or other form of local government”
(Sec. 2 (1), Administrative Code of 1987). The concept of association is not recognized under the
present Constitution. Indeed, the concept implies powers
NOTE: A government owned or controlled corporation that go beyond anything ever granted by the Constitution to
engaged in propriety functions cannot be considered part of any local or regional government. It also implies the
the Government for the purpose for purpose of exemption recognition of the associated entity as a state. The
from the application of the statute of limitations. Constitution, however, does not contemplate any state in this
jurisdiction other than the Philippine State, much less does it
Q: Is the Aquino Government a de facto government? provide for a transitory status that aims to prepare any part
of Philippine territory for independence.
A. While initially, Aquino Government was a de facto
government because it was established thru extra- Even assuming arguendo that the MOA‐AD would not
constitutional measure, it nevertheless assumed de jure necessarily sever any portion of Philippine territory, the spirit
status when it is subsequently recognized by the international animating it – which has betrayed itself by its use of the
community as the legitimate Government of the Philippines. concept of association – runs counter to the national
Moreover, a new Constitution was drafted and sovereignty and territorial integrity of the Republic
overwhelmingly ratified by the Filipino people and national
elections were held for that purpose. Q: Is the BJE a state?
NOTE: The government under Cory Aquino and the Freedom A: Yes, BJE is a state in all but name as it meets the criteria of
Constitution is a de jure government. It was established by a state laid down in the Montevideo Convention namely, a
authority of the legitimate sovereign, the people. It was a permanent population, a defined territory, a government and
revolutionary government established in defiance of the 1973 a capacity to enter into relations with other states.
Constitution. (In Re: Letter of Associate Justice Puno, 210
SCRA 589 (1992) Even assuming that the MOA‐AD would not necessarily sever
any portion of Philippine Territory, the spirit animating it –
Q: Is PGMA’s administration a de jure government? which has betrayed itself by its use of the concept of
association – runs counter to the national sovereignty and
A: The government under President Gloria Macapagal-Arroyo territorial integrity of the Republic.
established after the ouster of President Estrada is de jure
government. Q: Does the people’s right of self‐determination extend to a
unilateral right of secession?
A: No. A distinction should be made between the right of

CONCEPT OF ASSOCIATION internal and external self‐determination. The recognized
sources of international law establish that the right to
Q: What is the concept of Association? self‐determination of a people is normally fulfilled through
internal self‐determination – a people’s pursuit of its political,
A: An association is formed when two states of unequal economic, social and cultural development within the
power voluntarily establish durable links. In the basic model, framework of an existing State. A right to external
one state, the associate, delegates certain responsibilities to self‐determination arises in only the most extreme cases and,
the other, the principal, while maintaining its international even then, under carefully defined circumstances.
status as a state. Free association represents a middle ground
between integration and independence. (E.g. Republic of the

External self‐determination can be defined as the it does not depend for its validity on the previous recognition
establishment of a sovereign and independent State, the free of the state asserting it or on the consent of the other states.
association or integration with an independent State or the
emergence into any other political status freely determined Q: What is the basis for this right?
by a people which constitute modes of implementing the
right of self‐determination by that people. A:
Q: Does the right to self determination extend to the UN CHARTER

indigenous peoples?
Section 51. Nothing in the present Charter shall impair the
A: Yes. Indigenous peoples situated within States do not have inherent right of individual or collective self-defence if an
a general right to independence or secession from those armed attack occurs against a Member of the United Nations,
states under international law, but they do have the right until the Security Council has taken measures necessary to
amounting to the right to internal self‐determination. Such maintain international peace and security. Measures taken by
right is recognized by the UN General Assembly by adopting Members in the exercise of this right of self-defence shall be
the United Nations Declaration on the rights of Indigenous immediately reported to the Security Council and shall not in
Peoples (UNDRIP). any way affect the authority and responsibility of the Security
Council under the present Charter to take at any time such
Q: Do the obligations enumerated in the UN DRIP strictly action as it deems necessary in order to maintain or restore
require the Republic of the Philippines to grant the international peace and security.
Bangsamoro people, through the BJE, the particular rights
and powers provided for in the MOA_AD? Q: What is the constitutional basis related to this right?
A: No. The UN DRIP, while upholding the right of indigenous A:

peoples to autonomy, does not obligate States to grant ARTICLE II
indigenous peoples the near independent status of an DECLARATION OF PRINCIPLES AND STATE POLICIES
associated state. There is no requirement that States now
guarantee indigenous peoples their own police and internal Section 2. The Philippines renounces war as an instrument of
security force, nor is there an acknowledgement of the right national policy, adopts the generally accepted principles of
of indigenous peoples to the aerial domain and atmospheric international law as part of the law of the land and adheres to
space. But what it upholds is the right of indigenous peoples the policy of peace, equality, justice, freedom, cooperation,
to the lands, territories and resources, which they have and amity with all nations.
traditionally owned, occupied or otherwise used or acquired.
Q: What are the three (3) parts of this constitutional
provision?
FUNDAMENTAL RIGHTS OF STATES A:

1. Renunciation of war—the power to wage a
Q: What are the fundamental rights of a State? defensive war is of the very essence of sovereignty;
2. Adoption of the principles of international law;
A: It consists of the Right of: 3. Adherence to a policy of peace, equality, justice,
freedom, cooperation & amity
1. Existence and self‐preservation
2. Sovereignty and independence NOTE: The second part is nothing more than a formal
3. Equality acceptance of a principle to which all civilized nations must
4. Property and jurisdiction conform.
5. Diplomatic intercourse
The third part is called the “selfish policy”—the guiding
RIGHT OF EXISTENCE AND SELF-DEFENSE principle of Philippine foreign policy is the national interest.
However, this is tempered with concern for “equality, peace,
This is the most elementary and important right of a State. All freedom and justice.
other rights flow from this right.
Q: Do we renounce all kinds of war?
Accordingly, the state may take such measures, including the
use of force, as may be necessary to resist any danger to its A: The Philippines only renounces AGGRESSIVE war as an
existence. Such action being the exercise of an inherent right, instrument of national policy. It does not renounce defensive

war. Thus, no one has the power to declare war. BUT, Q: What is Intervention?
Congress can declare a “State of War.”
A: It is "the dictatorial interference by a State in the internal
Also, the President can only use military powers in case of affairs of another State, or in the relations between
invasion, rebellion, etc. He has no power to declare war. other States, which is either forcible or backed by the threat
of force."
Q: State the occasions when the use of force may be
allowed under the UN Charter. It is the act by which a state interferes with the domestic or
foreign affais of another state or states through the
A: There are only two occasions when the use of force is employment of force or threat of force. Such force may be
allowed under the UN Charter. physical or in the present state of world affairs, even political
or economic.
a. The first is when it is authorized in pursuance of
the enforcement action that may be decreed by the The state must abstain from intervention. Even as it expects
Security Council under Art. 42. its independence to be respected by other states so too must
b. The second is when it is employed in the exercise it respect their own independence.
of the inherent right of self-defense under
conditions prescribed in Art. 51. GR: Intervetion is not sanctioned in international relations.
Q: What are the effects when Congress declares a state of XPNs: Only when it is exercised as an act of self-defense or
war? when it is decreed by the Security Council as a preventive or
enforcement action for the maintenance of international
A: peace and security. Some writers would add a third
justification for intervenion, and this is when such action is
1. Art. VI, Sec. 23 - "In times of war…the Congress may, agreed upon in a treaty. Intervention may also be allowed
by law, authorize the President, for a limited when requested from fellow states or from the UN by the
period and subject to such restrictions as it parries to a dispute or by a state beset by rebellion.
may prescribe, to exercise powers necessary and
proper to carry out a declared national policy. NOTE: Intervention is Different from "Intercession."
Unless sooner withdrawn by resolution of the Intercession is allowed!
Congress, such powers shall cease upon the next
adjournment thereof." EX.: Diplomatic Protest, Tender of Advice
2. Art. VII, Sec. 18 - "The President shall be the
Commander-in-Chief of all armed forces…and Nicaragua v. USA, Communique 86/8 (June 27, 2986)
whenever it becomes necessary, he may call out
such armed forces to prevent or This is where the US was found guilty of interventio in the
suppress… invasion…In case, invasion…when the affairs of Nicaragua for sending troops to Nicaragua to aid the
public safety requires it, he may, for a period not contras, inasmuch as there was no armed attack against the
exceeding 60 days, suspend the privilege of the writ latter. Note that the protest or demand for rectification or
of habeas corpus or place the Philippines or any part reparation does not comprise intervention. Thus, the act of
thereof under martial law…" President Clinton in discoraging Americans from investing in
Burma was not considered as intervention.
RIGHTS OF SOVEREIGNTY AND INDEPENDENCE
The Drago Doctrine
Q: What is sovereignty?
Q: What is the “Drago Doctrine”?
A: It is the supreme, uncontrollable power inherent in a
state by which that state is governed. It is the supreme A: Generally Intervention is Prohibited (Drago Doctrine)
powerof the State to command and enforce obedience, the
power to which, legally speaking, all interests are practically In 1902, UK, Germany and Italy blockaded Venezuelan
subject and all wills subordinate. ports to compel it to pay its contractual debts leading
Foreign Minister Drago to formulate a doctrine that " a
Q: What is independence? public debt cannot give rise to the right of intervention”.
This principle was later adopted in the Second Hague
A: It is also known as external sovereignty. It signifies the Conference, but subject to the qualification that the debtor
freedom of the state to control its own foreign affairs. state should not refuse or neglect to reply to an offer of
arbitration or after accepting the offer, prevent any

compromise from being agreed upon, or after the
arbitration, fail to submit to the award, the qualification is Q: When is intervention allowed?
known as the Porter resolution.
A:
This was recognized in the Hague Convention of 1907 1. Intervention as an Act of Individual and Collective
through a provision that the contracting powers agree to Self-Defense
have the recourse to armed force for the recovery of contract 2. Intervention by Treaty Stipulation or by
debts claimed from the governmnt of one country by the Invitation
government of another country as being due to its nationals.
The force of this doctrine was later dissipated by the Porter Q: What is "Intervention by Invitation"?
Resolution.
A: It presupposes that the inviting State is not a mere puppet
Porter Resolution of the intervening State
Under this resolution, intervntion was permitted if the debtor Ex.: Hungary
state refused to an offer to arbitrate the creditor’s claim, or
having agreed to arbitrate, prevented agreement on the NOTE: In 1956, Hungary was in internal turmoil, and asked
compromise, or having agreed thereto, refused to abide by the Soviet forces to intervene. While the intervention was
the award of the arbitrator. upon invitation, it was still condemned because the
Hungarian government was a mere Soviet puppet
Intervention under the UN Charetr
3. By UN Authorization and Resolution
UN itself categorically binds itself not to interven in matters
which are essentially within the doemstic jurisdiction of any Examples: Korean War, 1990 Iraqi Annexation of Kuwait
state. In the UN Declaration of Rights and Duties of States, it
provided that every state has the duty to refrain from 4. On Humanitarian Grounds
intervention in the internal or external affairs of any other
State. This has recently evolved by international custom.
Thus, has become a primary source of international law.
Charter of the Organization of American States
Examples: Intervention in Somalia, Intervention in Bosnia
The charter of the Organization of American States is more and Kosovo (No UN Resolution, but NATO intervened
unequivocal with the statement that: militarily on the ground that there was ethnic cleansing
by Serbs of ethnic minorities), Intervention in East Timor
Article 19
No State or group of States has the right to intervene,

directly or indirectly, for any reason whatever, in the RECOGNITION
internal or external affairs of any other State. The foregoing
principle prohibits not only armed force but also any other Q: What is recognition?
form of interference or attempted threat against the
personality of the State or against its political, economic, A: It is an act by which a State acknowledges the existence of
and cultural elements. another State, government, or a belligerent community and
indicates its willingness to deal with the entity as such under
Article 20 international law.
No State may use or encourage the use of coercive Q: Who has the authority to recognize?
measures of an economic or political character in order to
force the sovereign will of another State and obtain from it A: It is a matter to be determined according to the municipal
advantages of any kind. law of each state. In the Philippines, there is no explicit
provision in the Constitution which vests this power in any
Q: What is Pacific Blockade? department. But since the President is empowered to appoint
and receive ambassadors and public ministers, it is conceded
A: It is one imposed during times of peace were the countries that by implications, it is the executive department that is
at war, then a blockade is a legitimate measure in fact, a primarily endowed with the power to recognize foreign
blockade must not be violated by a neutral State. If breached, governments and States.
the neutral vessel is seized.

Q: What are the 3 levels of recognition? Q: Distinguish recognition of State from recognition of
government.
A:
1. Recognition of State A:
2. Recognition of Government
3. Recognition of Belligerency 1. Recognition of State carries with it the recognition of
government since the former implies that a State
Recognition by the State recognized has all the essential requisites of a State at
the time recognition is extended.
Q: What are the two theories of recognition of State? 2. Once recognition of state is accorded, it is generally
irrevocable. In contrast, recognition of government may
A: The theories of recognition of a State are: be withheld from a succeeding government brought
about by violent or unconstitutional means.
1. Constitutive theory (minority view) – recognition is
the last indispensable element that converts the Q: Distinguish de jure recognition from de facto recognition.
state being recognized into an international person.
It is an act which constitutes the entity into an A:
international person. DE JURE DE FACTO
Given to a government that Given to governments that
It is only through recognition that a State becomes an satisfies both the objective have not fully satisfied
International Person and a subject of international law. Thus, and subjective criteria objective and subjective
recognition is a legal matter—not a matter of arbitrary will criteria
on the part of one State whether to recognize or refuse to Extended to a government Extended by the recognizing
recognize another entity but that where certain conditions fulfilling the requirements for state which believes that
of fact exist, an entity may demand, and the State is under recognition. When there is some of the requirements for
legal duty to accord recognition. no specific indication, recognition are absent.
recognition is generally
Thus, recognition is compulsory and legal. It may be considered as de jure.
compelled once the elements of a state are established. Recognition is relatively The recognition is generally
permanent; brings about full provisional and limited to
2. Declaratory theory – recognition is merely an diplomatic intercourse and judicial relations; it does not
acknowledgment of the pre‐existing fact that the observance of diplomatic bring about diplomatic
state being recognized is an international person. It immunities; and confers title intercourse and does not
merely affirms an existing fact. to assets abroad. give title to assets of the
state held or situated abroad.
It simply manifests the recognizing State’s readiness to
accept the normal consequences of the fact of Statehood. NOTE: There is no such thing as de facto or de jure
Thus, recognition is a political act, i.e., it is entirely a matter recognition of the states.
of policy and discretion to give or refuse recognition, and that
no entity possesses the power, as a matter of legal right, to Recognition of New Governments
demand recognition. Under this theory, here is no legal
right to demand recognition. Q: What are the requirements for recognition of
government?
Under this view, recognition is discretionary and political.
A:
Q: Which is followed by most nations? 1. The government is stable and effective, with no
substantial resistance to its authority- it must be in
A: Declaratory theory possession of the machinery of the State without
substantial resistance to its authority (Objective
NOTE: The recognition of a State has now been substituted Test);
to a large extent by the act of admission to the United 2. The government must show willingness and ability to
Nations it is the "assurance given to a new State that it will be discharge its international obligations (Subjective
permitted to hold its place and rank in the character of Test);
an independent political organism in the society of 3. The government must enjoy popular consent or
nations." approval of the people

Q: What is the Tobar (Former Foreign Minister of Ecuador) 3. It is immune from the jurisdiction of the courts of law of
or Wilson doctrine? recognizing State (It may not be sued without its
consent);
A: It precludes recognition to any government coming into 4. The new government becomes entitled to demand and
existence by revolutionary means so long as the freely receive possession of property situated within the
elected representatives of the people thereof have not jurisdiction of a recognizing State, which formerly
constitutionally reorganized the country. belonged to the preceding government at the time
of its supercession;
Under this doctrine, the recognizing state or government 5. Its effect is to preclude the courts of recognizing
imposes a government: “we will not give you recognition State from assign judgment on the legality of its acts,
unless you first adopt a Constitution and hold free elections. past and future. Recognition being retroactive. It
validates the acts or decrees of the recognizing state or
Q: What is the Estrada Doctrine? government so that the courts of the recognizing state
are not precluded from passing judgment on the legality
A: This doctrine was formulated by Foreign Minister Genaro of its acts, past and future. This is the application of the
Estrada of Mexico I 1930. It involves a policy of never issuing Act of State Doctrine.
any declaration giving recognition to governments and of
accepting whatever government is in effective control Act of State Doctrine
without raising the issue of recognition. An inquiry into
legitimacy would be an intervention in the internal affairs of Under this doctrine, the courts of one state are precluded
another State. from passing judgments on the legality of the acts of another
state committed within its territory.
Q: Who has the authority to recognize?
Belligerency
A: It is a matter to be determined according to the municipal
law of each State. In the Philippines, it is the President who Q: What is belligerency?
determines the question of recognition and his decisions on
this matter are considered acts of state which are, therefore, A: Belligerency exists when the inhabitants of a State rise up
not subject to judicial review. His authority in this respect is in arms for the purpose of overthrowing the legitimate
derived from his treaty‐making power, his power to send and government or when there is a state of war between two
receive diplomatic representatives (diplomatic power), his states.
military power, and his right in general to act as the foreign
policy spokesman of the nation. Being essentially Belligerency may be understood in two senses:
discretionary, the exercise of these powers may not be
compelled. a. It may refer to the state of war between 2 or more
states. In which case, the states of war are referred
Q: Is the recognition extended by the President to a foreign to as the belligerent states; and
government subject to judicial review? b. Actual hostilities amounting to civil war within a
single state.
A: No! It is purely a political question. Otherwise, you will
embarrass the President in the conduct of foreign policy and Recognition of Belligerency
foreign relations. According to Salonga, the legality and
wisdom of recognition accorded by foreign entity is not It is the formal acknowledgement by a third party of the
subject to judicial review. The Courts are bound by the act of existence of a state of war between the central government
the political department of the government. and a portion of that state.
Q: What are the effects or legal consequences of recognition Q: When does belligerency exist?
of government?
A: It exists when a sizable portion of the territory of a state is
A: under effective control of an insurgent community which is
seeking to establish a separate government and the
1. The recognized government or State acquires the insurgents are in de facto control of a portion of the territory
capacity to enter into diplomatic relations with and population, have political organization, are able to
recognizing States and to make treaties with them; maintain such control, and conduct themselves according to
2. The recognized government or State acquires the right of the laws of war.
suing in the courts of law of the recognizing State;
Q: What are the requisites in recognizing Belligerency?

their acts which do not conform to the laws and
A: customs of war.
1. There must be an organized civil government NOTE: Rebels are enemy combatants and accorded the rights
directing the rebel forces; or an organized civil of prisoners of war. And, essentially, this means that there
government having control and supervision over the are two competing governments in one country.
armed struggle;
2. The rebels must occupy a substantial portion of the Q: What is the form of such recognition?
Territory of the state;
3. The conflict between the legitimate government and A: It may either be express or implied; the proclamation by
the rebels must be serious, making the outcome the parent state of a blockade of a port held by the rebels is
uncertain; or serious and widespread struggle with implied recognition of belligerency; so is the proclamation of
the outcome uncertain neutrality by a third state.
4. The rebels must be willing and able to observe the
rules/ customs/ laws of war. Q: What are the effects of recognition of belligerency?
Q: What is the effect of the absence of any of these A: Responsibility for acts of rebels resulting in injury to
conditions/ requisites? nationals of the recognizing state shall be shifted to the rebel
government; the legitimate government recognizing the
A: It will result merely in insurgency which is rarely rebels shall observe the laws of war in conducting hostilities;
recognized. third states recognizing the belligerency shall maintain
neutrality; and recognition is only provisional (for the
Q: What are the legal consequences of belligerency? duration of the armed struggle) and only for the purpose of
the hostilities.
A:
Q: Distinguish insurgency from belligerency
1. Before recognition, it is the legitimate government
that is responsible for the acts of the rebels affecting A:
foreign nationals and their properties. Once
recognition is given, responsibility is shifted to the INSURGENCY BELLIGERENCY
rebel government; a mere initial stage of war. It More serious and
2. The legitimate government, once it recognizes the involves a rebel movement, widespread and presupposes
rebels as belligerents, is bound to observe the laws and is usually not the existence of war
and customs of war in conducting the hostilities— recognized between 2 or more states
this is no longer a matter of municipal law. Once the (1st sense) or actual civil war
government captures a rebel, that he a combatant within a single state (2nd
and that as combatant, he will have to be treated as sense).
a prisoner of war. Prisoners of war have rights under Sanctions to insurgency are Belligerency is governed by
international humanitarian law. governed by municipal law – the rules on international law
Revised Penal Code, i.e. as the belligerents may be
E.g. They cannot execute rebels considered as POWs. rebellion. given international
personality.
3. From the viewpoint of third States, is to put them
under obligation to observe strict neutrality and Q: Has the CPP/NPA and MILF complied with these
abide by the consequences arising from that conditions?
position; and
A: No. But, there are some indications they are striving to
Example: meet the conditions. They executed common criminals, after
a trial. It is like saying they have a government.
a. It must abstain from taking part in the
hostilities; and NOTE: The maintenance of peace and order, and
b. Most acquiesce to restrictions imposed administration of justice, are constituent functions of the
by the rebels, such as visit and search of its government.
merchant ships
Q: Explain, using example, recognition of belligerency.
4. Recognition puts the rebels under responsibility to (1991 Bar).
third States and to the legitimate government for all

A: Recognition of belligerency is the formal acknowledgment it does not depend for its validity on the previous recognition
by a third party of the existence of a state of war between the of the state asserting it or on the consent of the other states.
central government and a portion of that state. Belligerency
exists when a sizable portion of the territory of a state is Q: What are the requisites of the right?
under the effective control of an insurgent community
which is seeking to establish a separate government and A:
the insurgents are in de facto control of a portion of the
territory and population, have a political organization, and 1. Presence of armed attack to justify the exercise of
are able to maintain such control and conduct the right of self-defense- only in the face of
themselves according to the laws of war. For example, Great necessity of self-defense instant, overwhelming and
Britain recognized a state of belligerency in the United States leaving no choice or means and no moment for
during the Civil War. deliberation. Mere apprehended danger or any
direct threat will not warrant the employment of any
force against he suspected or potential enemy;
2. Clear showing of a grave and actual danger to the
RIGHTS OF THE STATE security of the state; and
3. Limited by the necessity and kept clearly within it.
Q: What are the fundamental rights of States?
Q: What is the constitutional policy regarding war?
A: (SPEED)
A: Art. II, Sec. 2 provides that "The Philippines renounces war
1. Right to Sovereignty and Independence; as an instrument of national policy…" This prohibits an
2. Right to Property and Jurisdiction; offensive/aggressive war. Thus, it allows DEFENSIVE WAR!
3. Right to Existence and Self-Defense
4. Right to Equality Thus, when attacked, the Philippines can exercise its inherent
5. Right to Diplomatic Intercourse right of existence and self-defense. This right is a generally
accepted principle of international law - thus, it is part of our
RIGHT OF EXISTENCE AND SELF-DEFENSE law of the land, under the Incorporation Clause (Art. II, Sec. 2,
1987 Constitution)
This is considered as the most comprehensive of the
attributes of the state because all its other rights are ARTICLE II
supposed to flow or be derived from it. By this right, the state DECLARATION OF PRINCIPLES AND STATE POLICIES
may take such measures, including the use of force, as may
be necessary to resist any danger to its existence. Such action Section 2. The Philippines renounces war as an instrument of
does not depend for its validity on the previous recognition of national policy, adopts the generally accepted principles of
the state asserting it or on the consent of other states (Cruz, international law as part of the law of the land and adheres to
p. 92). the policy of peace, equality, justice, freedom, cooperation,
and amity with all nations.
This is the most elementary and important right of a State. All
other rights flow from this right. As recognized in the UN Q: What are the three (3) parts of this constitutional
Charter, Article 51: provision?
"Nothing in the present charter shall impair the inherent A:

right of individual or collective self-defense if an armed 1. Renunciation of war—the power to wage a
attack occurs against a Member of the UN, until the SC has defensive war is of the very essence of sovereignty;
taken measures necessary to maintain international peace 2. Adoption of the principles of international law;
and security. Measures taken by Members in the exercise 3. Adherence to a policy of peace, equality, justice,
of this right of self- defense shall be immediately reported to freedom, cooperation & amity
the SC and shall not in any way affect the authority and
responsibility of the SC under the present Charter to take at NOTE: The second part is nothing more than a formal
any time such action as it deems necessary in order to acceptance of a principle to which all civilized nations must
maintain or restore international peace and security." conform.
Accordingly, the state may take such measures, including the The third part is called the “selfish policy”—the guiding
use of force, as may be necessary to resist any danger to its principle of Philippine foreign policy is the national interest.
existence. Such action being the exercise of an inherent right, However, this is tempered with concern for “equality, peace,
freedom and justice.

A state of martial law does not
Q: Do we renounce all kinds of war? suspend the operation of the
Constitution, nor supplant the
functioning of the civil courts or
A: The Philippines only renounces AGGRESSIVE war as an legislative assemblies, nor authorize
instrument of national policy. It does not renounce defensive the conferment of jurisdiction on
war. Thus, no one has the power to declare war. BUT, military courts and agencies over
civilians where civil courts are able
Congress can declare a “State of War.” to function, nor automatically
suspend the privilege of the writ.
Also, the President can only use military powers in case of
invasion, rebellion, etc. He has no power to declare war. The suspension of the privilege of
the writ shall apply only to persons
judicially charged for rebellion or
Q: Under our jurisdiction, who has the power to declare offenses inherent in or directly
war? connected with invasion.
During the suspension of the

A: None. privilege of the writ, any person thus
arrested or detained shall be
Sec. 23 of Art. VI Sec. 18 of Art. VII judicially charged within three days,
Section 23. The Congress, by a vote Section 18. The President shall be otherwise he shall be released.
of two-thirds of both Houses in joint the Commander-in-Chief of all This only covers defensive war
session assembled, voting armed forces of the Philippines and where we are already being
separately, shall have the sole power whenever it becomes necessary, he attacked. Congress shall meet
to declare the existence of a state of may call out such armed forces to and declare the existence of a
war. prevent or suppress lawless state of war, and on the basis of
violence, invasion or rebellion. In
that declaration, Congress may
case of invasion or rebellion, when
the public safety requires it, he may, now delegate emergency
for a period not exceeding sixty powers to the President.
days, suspend the privilege of the
writ of habeas corpus or place the Q: Why does the Philippines have to renounce war?
Philippines or any part thereof under
martial law. Within forty-eight hours
from the proclamation of martial law A: It is consistent with our membership to the United Nations
or the suspension of the privilege of because among the fundamental principles governing the
the writ of habeas corpus, the establishment of the U.N. is the renunciation of war as an
President shall submit a report in
person or in writing to the Congress.
instrument of national policy.
The Congress, voting jointly, by a
vote of at least a majority of all its Q: State the occasions when the use of force may be
Members in regular or special allowed under the UN Charter.
session, may revoke such
proclamation or suspension, which
revocation shall not be set aside by A: There are only two occasions when the use of force is
the President. Upon the initiative of allowed under the UN Charter:
the President, the Congress may, in
the same manner, extend such
proclamation or suspension for a
1. when it is authorized in pursuance of the
period to be determined by the enforcement action that may be decreed by the
12
Congress, if the invasion or rebellion Security Council under Art. 42 .
shall persist and public safety 2. when it is employed in the exercise of the
requires it.
inherent right of self-defense under conditions
13
The Congress, if not in session, shall, prescribed in Art. 51 .
within twenty-four hours following
such proclamation or suspension, Q: Not too long ago, "allied forces", led by American and
convene in accordance with its rules
without need of a call.
British armed forces, invaded Iraq to "liberate Iraqis and
destroy suspected weapons of mass destruction." The
The Supreme Court may review, in
an appropriate proceeding filed by 12
The Security Council may decide what measures not involving the use of armed force are to be
any citizen, the sufficiency of the employed to give effect to its decisions, and it may call upon the Members of the United Nations to
apply such measures. These may include complete or partial interruption of economic relations and
factual basis of the proclamation of of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of
martial law or the suspension of the diplomatic relations.
privilege of the writ or the extension 13
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence
thereof, and must promulgate its if an armed attack occurs against a Member of the United Nations, until the Security Council has taken
decision thereon within thirty days measures necessary to maintain international peace and security. Measures taken by Members in the
from its filing. exercise of this right of self-defence shall be immediately reported to the Security Council and shall not
in any way affect the authority and responsibility of the Security Council under the present Charter to
take at any time such action as it deems necessary in order to maintain or restore international peace
and security.

Security Council of the United Nations failed to reach a
consensus on whether to support or oppose the "war of Moreover, the action of the alleged allied forces was taken in
liberation." Can the action taken by the allied forces defiance or disregard of the Security Council Resolution No.
find justification in International Law? Explain. (2003 Bar) 1441 which set up "an enhanced inspection regime with
the aim of bringing to full and verified completion the
A: The United States and its allied forces cannot justify their disarmament process," giving Iraq "a final opportunity
invasion of Iraq on the basis of self-defense under Article 51, to comply with its disarmament obligations." This
attack by Iraq, and there was no necessity for resolution was in the process of implementation; so was
anticipatory self-defense which may be justified under Iraq’s compliance with such disarmament obligations.
customary international law. Neither can they justify their
invasion on the ground that Article 42 of the Charter of the Regional arrangements
United Nations permits the use of force against a State if it is
sanctioned by the Security Council. Resolution 1441, which Collective self-defense is recognized under Article 51 and
gave Iraq a final opportunity to disarm or face serious impliedly in Article VII of the Regional Arrangements (Article
15
consequences, did not authorize the use of armed force. 52, Section 1) .
Alternative A: In International Law, the action taken by the An example of this regional agency is the Organization of
allied forces cannot find justification. It is covered by the American States.
prohibition against the use of force prescribed by the United
Nations Charter and it does not fall under any of the Q: On 31 October 2001, members of Ali Baba, a political
exceptions to that prohibition. extremist organization based in and under the protection
of Country X and espousing violence worldwide as a
The UN Charter in Article 2(4) prohibits the use of force in the means of achieving its objective, planted high-powered
relations of states by providing that all members of the UN explosives and bombs at the International Trade Tower
"shall refrain in their international relations from the threat (ITT) in Jewel City in Country Y, a member of the United
or use of force against the territorial integrity or political Nations. As a result of the bombing and the collapse of the
independence of any state, or in any other manner 100-story twin towers, about 2000 people, including
inconsistent with the purposes of the United Nations." women and children were killed or injured and billions of
This mandate does not only outlaw war; it encompasses all dollars in property were lost. Immediately after the
threats of and acts of force or violence short of war. incident, Ali Baba, speaking through its leader Bin
Derdandat, admitted and owned responsibility for the
As thus provided, the prohibition is addressed to all UN bombing of ITT, saying that it was done to pressure
members. However, it is now recognized as a fundamental Country Y to release captured members of the
principle in customary international law and, as such, is terrorist group. Ali Baba threatened to repeat its terrorist
binding on all members of the international community. acts against Country Y if the latter and its allies failed to
accede to Ali Baba’s demands. In response, Country Y
The action taken by the allied forces cannot be justified under demanded that Country X surrender and deliver Bin
any of the three exceptions to the prohibition against the use Derdandat to the government authorities of Country Y for
of force which the UN Charter allows. These are: the purpose of trial and "in the name of justice." Country X
refused to accede to the demand of Country Y.
(1) Inherent right of individual or collective self-defense
under Article 51; What action or actions can Country Y legally take against Ali
(2) Enforcement measure involving the use of armed Baba and Country X to stop the terrorist activities of Ali
forces by the UN Security Council under Article 42; Baba and dissuade Country X from harboring and giving
and protection to the terrorist organization? Support your
(3) Enforcement measure by regional arrangement answer with reasons. (2002 Bar)
14
under Article 53 , as authorized by the UN
Security Council. The allied forces did not launch A:
military operations and did not occupy Iraq on the
claim that their action was in response to an armed 15
Nothing in the present Charter precludes the existence of regional arrangements or agencies for
attacked by Iraq, of which there was none. dealing with such matters relating to the maintenance of international peace and security as are
appropriate for regional action provided that such arrangements or agencies and their activities are
14
consistent with the Purposes and Principles of the United Nations.
1. The Security Council shall, where appropriate, utilize such regional arrangements or agencies for
enforcement action under its authority. But no enforcement action shall be taken under regional The Members of the United Nations entering into such arrangements or constituting such agencies
arrangements or by regional agencies without the authorization of the Security Council, with the shall make every effort to achieve pacific settlement of local disputes through such regional
exception of measures against any enemy state, as defined in paragraph 2 of this Article, provided for arrangements or by such regional agencies before referring them to the Security Council.
pursuant to Article 107 or in regional arrangements directed against renewal of aggressive policy on The Security Council shall encourage the development of pacific settlement of local disputes through
the part of any such state, until such time as the Organization may, on request of the Governments such regional arrangements or by such regional agencies either on the initiative of the states
concerned, be charged with the responsibility for preventing further aggression by such a state. concerned or by reference from the Security Council.
2. The term enemy state as used in paragraph 1 of this Article applies to any state which during the
Second World War has been an enemy of any signatory of the present Charter. This Article in no way impairs the application of Articles 34 and 35.

(1) Country Y may exercise the right of self-defense, as Q: Will the subsequent discovery of weapons of mass
provided under Article 51 of the UN Charter "until the destruction in Iraq after its invasion by the US justify the
Security Council has taken measure necessary to maintain attack initiated by the latter?
international peace and security." Self defense
enables Country Y to use force against Country X as well as A: Even if Iraq’s hidden arsenal is discovered - or actually
against the Ali Baba organization. used - and the United States is justified in its suspicions, that
circumstance will not validate the procedure taken against
(2) It may bring the matter to the Security Council which may Iraq. It is like searching a person without warrant and
authorize sanctions against Country X, including measure curing the irregularity with the discovery of prohibited
invoking the use of force. drugs in his possession. The process cannot be reversed. The
warrant must first be issued before the search and seizure
Under Article 4 of the UN Charter, Country Y may use force can be made.
against Country X as well as against the Ali Baba organization
by authority of the UN Security Council. The American invasion was made without permission
from the Security Council as required by the UN Charter. Any
Alternative A: Under the Security Council Resolution No. subsequent discovery of the prohibited biological and
1368, the terrorist attack of Ali Baba may be defined as a chemical weapons will not retroactively legalize that invasion,
threat to peace, as it did in defining the 11 September 2001 which was, legally speaking, null and void ab initio.
attacks against the United States. The resolution
authorizes military and other actions to respond to terrorist Q: State B, relying on information gathered by its
attacks. However, the use of military force must be intelligence community to the effect that its neighbor, State
proportionate and intended for the purpose of detaining C, is planning an attack on its nuclear plan and research
the persons allegedly responsible for the crime and to institute, undertook a "preventive" attack in certain bases
destroy military objectives used by the terrorists. on State C located near the border of the two states. As a
result, State C presented the incident to the UN General
The fundamental principles of international humanitarian Assembly but the latter referred it to the UN Security
law should be respected. Country Y cannot be granted Council as a matter, which disturbs or threatens
sweeping discretionary powers that include the power to "international peace and security". State B argued that it
decide what states are behind the terrorist organizations. It was acting within the legal bounds of Article 51 of the UN
is for the Security Council to decide whether force may be Charter and that it was a permitted use of force in self-
used against specific states and under what conditions the defense and against armed attack. Is State B responsible
force may be used. under International Law? Did State B act within the bounds
set forth in the UN Charter on the use of force in self-
Q: Is the United States justified in invading Iraq invoking its defense? (1985 Bar)
right to defend itself against an expected attack by Iraq
with the use of its biological and chemical weapons of A: An armed attack is not a requirement for the exercise of
mass destruction? the right of self-defense. However, the attack of State B on
State C cannot be justified as an act of self-defense under Art.
A: The United States is invoking its right to defend itself 51 of the UN Charter considering that the danger perceived
against an expected attack by Iraq with the use of its by State B was not imminent. State B ought to have
biological and chemical weapons of mass destruction. There exhausted peaceful and pacific methods of settlements
is no evidence of such a threat, but Bush is probably invoking instead of resorting to the use of force.
the modern view that a state does not have to wait until the
potential enemy fires first. The cowboy from Texas says that Q: Who can declare war?
outdrawing the foe who is about to shoot is an act of
self-defense. A: No one! The Constitution has withheld this power from
the government. What the Constitution allows is a
Art. 51 says, however, that there must first be an "armed declaration of a "State of War". Under Art. VI, Sec. 23(1) -
attack" before a state can exercise its inherent right of self- "Congress, by a vote of 2/3 of both Houses, in joint session
defense, and only until the Security Council, to which the assembled, voting separately, shall have the sole power to
aggression should be reported, shall have taken the declare the existence of a state of war. This means that we
16
necessary measures to maintain international peace and are already under attack.
security. It was the United States that made the "armed
attack" first, thus becoming the aggressor, not Iraq.
Iraq is now not only exercising its inherent right of self- 16
Section 2. The Philippines renounces war as an instrument of national policy, adopts the generally
accepted principles of international law as part of the law of the land and adheres to the policy of
defense as recognized by the UN Charter. peace, equality, justice, freedom, cooperation, and amity with all nations (Article 2).

Q: What are the effects when Congress declares a state of Intervention

war?
Q: What is intervention?
A:
A: It is "the dictatorial interference by a State in the internal
17
1. Art. VI, Sec. 23 affairs of another State, or in the relations between
18
2. Art. VII, Sec. 18 other States, which is either forcible or backed by the threat
of force."
This is in line with the UN Charter, which also renounces war.
As charter-member of the UN, our Constitution also It is an act by which a state interferes with the domestic or
renounces war as an instrument of national policy. foreign affairs of another state or states through
employment of force or threat of force. Such force nay be
RIGHTS OF SOVEREIGNTY AND INDEPENDENCE physical or in the present state of world affairs, even political
or economic. Lacking such pressure, the involvement of a
Q: What is sovereignty? state in the affairs of another, even if unsolicited, cannot be
considered intervention.
A: It is the supreme, uncontrollable power in a state by
which that state is governed. It is the supreme power of the The state must abstain from intervention. Even if it expects
state to command and enforce obedience, the power to its independence to be respected by other States, so too
which, legally speaking, all interests are practically subject must it respect their own independence. The right of
and all wills subordinate. independence carries with it, by necessary implication, the
correlative duty of non-intervention.
In international law, it is the attribute that enables the state
to make its own decision vis-à-vis other states and vests it NOTE: The kind of intervention here must be dictatorial
with competence to enter into relations and agreements with backed up by force or threat of force. You cannot intervene
them. until and unless you have force.
Q: What is Independence? Q: Is intervention allowed under international law?
A: It is also known as external sovereignty. It signifies the A:

freedom of the state to control its own foreign affairs.
GR: Intervention is not sanctioned in international relations.
Section 23.The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting
separately, shall have the sole power to declare the existence of a state of war. XPN: When it is exercised as an act of self-defense or when it
In times of war or other national emergency, the Congress may, by law, authorize the President, for a is decreed by the Security Council as a preventive or
limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and
proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress,
enforcement action for the maintenance of international
such powers shall cease upon the next adjournment thereof (Article 6). peace and security. These are the only 2 instances when the
17
Supra
use of force is allowed under the Charter of the UN. Some
18
writers would add a third justification for intervention, and
Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless this is when such action is agreed upon in a treaty.
violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he
may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place
Intervention may also be allowed when requested from
the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation fellow states or from the UN by the parties to a dispute or by
of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall
submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at a state beset of rebellion.
least a majority of all its Members in regular or special session, may revoke such proclamation or
suspension, which revocation shall not be set aside by the President. Upon the initiative of the
President, the Congress may, in the same manner, extend such proclamation or suspension for a Q: Give examples of justified intervention?
period to be determined by the Congress, if the invasion or rebellion shall persist and public safety
requires it.
The Congress, if not in session, shall, within twenty-four hours following such proclamation or
A:
suspension, convene in accordance with its rules without need of a call. 1. Intervention as an act of individual or collective self-
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the defense
factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the
extension thereof, and must promulgate its decision thereon within thirty days from its filing.
2. Intervention by treaty stipulations or by invitation
3. Intervention by the United Nation’s authorization
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning
of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military 4. Intervention on human grounds, which according to
courts and agencies over civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.
authorities in international law has now evolved into
an international custom.
The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or
offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be released.

latter. Note that the protest or demand for rectification or
Intercession reparation does not comprise intervention. Thus, the act of
President Clinton in discoraging Americans from investing in
NOTE: Intervention is Different from "Intercession" Burma was not considered as intervention.
Intercession is allowed!
The Drago Doctrine
Q: Is intervention allowed?
Q: What is the “Drago Doctrine”?
A: It is prohibited.
A: It prohibits the intervention for the purpose of collecting
Q: Give examples of intercession. contractual debts.
A: Generally Intervention is Prohibited (Drago Doctrine). This

1. Diplomatic Protest, is formulated by Foreign Minister Luis Drago (Argentina), in
2. Tender of Advice reaction to the Venezuelan Incident.
3. Demand for rectification of a wrong done or
committed In 1902, UK, Germany and Italy blockaded Venezuelan
ports to compel it to pay its contractual debts. This is
GR: Intervention is prohibited (Drago Doctrine). It prohibits the best example of what is termed as pacific blockade. The
intervention for the collection of contractual debts, public or purpose of the blockade is to compel the Valenzuelan
private. government to pay its contractual debts.
XPN: (When intervention is allowed) The action was the subject of universal dispprobation which
led the foreign Minister Drago to formulate a doctrine that
1. Intervention as an Act of Individual and Collective " a public debt cannot give rise to the right of
Self-Defense; intervention”. This principle was later adopted in the
19
2. Intervention by Treaty Stipulation or by Second Hague Conference , but subject to the qualification
Invitation; that the debtor state should not refuse or neglect to reply to
3. By UN Authorization and Resolution- like what an offer of arbitration or after accepting the offer, prevent
happened in the Korean War and during in Iraqi any compromise from being agreed upon, or after the
Annexation of Kuwait in 1990 (there was a UN arbitration, fail to submit to the award, the qualification is
Resolution authorizing the US-led multilateral force known as the Porter resolution.
to intervene);
4. On humanitarian grounds –this has evolved by This was recognized in the Hague Convention of 1907
international custom and thus become a primary through a provision that the contracting powers agree to
source of international custom (Intervention in have the recourse to armed force for the recovery of contract
Somalia; in Bosnia and Kosovo wherein there was debts claimed from the governmnt of one country by the
no UN Resolution but NATO intervened militarily in government of another country as being due to its nationals.
the ground that there was ethnic cleansing by Serbs The force of this doctrine was later dissipated by the Porter
of the minorities; Intervention in East Timor to Resolution.
protect the East Tomorese);
Porter Resolution
Q: What is "Intervention by Invitation"?
Under this resolution, intervntion was permitted if the debtor
A: It presupposes that the inviting State is not a mere puppet state refused to an offer to arbitrate the creditor’s claim, or
of the intervening State EX.: Hungary. having agreed to arbitrate, prevented agreement on the
compromise, or having agreed thereto, refused to abide by
In 1956, Hungary was in internal turmoil, and asked the the award of the arbitrator.
Soviet forces to intervene. While the intervention was upon
invitation, it was still condemned because the Hungarian Intervention by treaty stipulations or by invitation
government was a mere Soviet puppet.
Q: What is the requirement under this intervention?
Nicaragua v. USA, Communique 86/8 (June 27, 2986)
This is where the US was found guilty of interventio in the

affairs of Nicaragua for sending troops to Nicaragua to aid the 19
The contracting powers agree no tot have recourse to armed force for the
contras, inasmuch as there was no armed attack against the recovery of contract debts claimed from the government of one country by
the government of another country as being due to its nationals.
A: Fot it to be justified, it presupposes that the inviting force the sovereign will of another State and obtain from it
government must not be a mere puppet of the intervening advantages of any kind.
state.
Q: What is Pacific Blockade?
Example: What happened in Hungary (Western Europe in
1956)—Cold War: A: It is one imposed during times of peace were the countries
a. Soviet bloc (Hungary was part) at war, then a blockade is a legitimate measure in fact, a
b. Western bloc blockade must not be violated by a neutral State. If breached,
the neutral vessel is seized.
Q: Under our history, is there any instance when there was
an Intervention by treaty stipulations or by invitation? PACIFIC BLOCKADE BLOCKADE UNDER THE
LAWS OF WAR AND THE
A: In 1989, on the second day of the last coup d’etat during LAWS OF NEUTRALITY
the time of President Cory, the rebel forces, the RAM-SFP Not allowed A legitimate war measure
attacked the Malacanang. At that time, the U.S. fleet was that may be undertaken by a
here at the South China Sea. The Cory Government admitted belligerent in times of war.
that they invited the Americans to intervene. A coup d’etat is The reason why it is called The purpose is to cut off the
an internal affair in the Philippines, yet the Americans “pacific” is that there was no port of another state from
intervened militarily. This was an intervention by invitation. war between the blockading communication, commerce
states and the blockaded or trade.
Intervention under the UN Charetr port.
Committed in times of peace Belligerent states may resort
UN itself categorically binds itself not to interven in matters to blockade.
which are essentially within the doemstic jurisdiction of any
state. In the UN Declaration of Rights and Duties of States, it Q: At the United Nations, the Arab League, through Syria,
provided that every state has the duty to refrain from sponsors a move to include in the agenda of the General
intervention in the internal or external affairs of any other Assembly the discussion of this matter: "The Muslim
State. population of Mindanao, Philippines has expressed the
desire to secede from the Republic of the Philippines in
Examples: order to constitute a separate and independent state
1. Korean War of 1950. The U.N. intervened in the and has drawn attention to the probability that the
Korean War. continuation of the armed conflict in Mindanao constitutes
2. Gulf War of 1990, when Saddam Hussein invaded a threat to peace." You are asked by the Philippine
and annexed Kuwait and made it a province of Iraq. Government to draft a position paper opposing the move.
The multinational force led by the U.S. also Briefly outline your arguments supporting the Philippine
intervened during the so called “Operation Dessert position, specifically discussing the tenability of Arab
Storm.” This was justified. League’s action from the standpoint of International Law.
(1984
Charter of the Organization of American States Bar)
The charter of the Organization of American States is more A: The Muslim secessionist movement is not an international
unequivocal with the statement that: dispute, which under Article 35(1) of the UN Charter, a
member of the United Nations may bring to the attention of
Article 19 the Security Council or the General Assembly. Such dispute
can arise only between two or more States. The attempt of
No State or group of States has the right to intervene, the Arab League to place on the agenda of the General
directly or indirectly, for any reason whatever, in the Assembly the Muslim problem in Mindanao can only be views
internal or external affairs of any other State. The foregoing as an interference with a purely domestic affair.
principle prohibits not only armed force but also any other
form of interference or attempted threat against the Q: When is the use of force allowed under the UN Charter
personality of the State or against its political, economic, by the UNSC resolution?
and cultural elements.
A:
Article 20
20
1. Article 41
No State may use or encourage the use of coercive
measures of an economic or political character in order to
20
supra
21
2. Article 42 scale but also assistance to rebels in the form of the provision
22
3. Article 51 of weapons or logistical or other support. Such assistance
may be regarded as a threat or use of force, or amount
NOTE: There is a limited definition of armed attacks - to intervention in the internal or external affairs of other
Nicargua v. United States. States."
Nicaragua v. United States RIGHT OF EQUALITY
Where the US was found guilty of intervention in the affairs of UN Charter

Nicaragua for sending troops to Nicaragua to aid the contras, Article 2
in as much as there was no armed attack against the latter.
Note that the protest or demand for rectification or The Organization and its Members, in pursuit of the Purposes
reparation does not comprise intervention. Thus, the fact that stated in Article 1, shall act in accordance with the following
President Clinton in discouraging the Americans in not Principles.
investing in Burma was not considered as intervention.
1. The Organization is based on the principle of the
In the case of individual self-defense, the exercise of this right sovereign equality of all its Members.
is subject to the State concerned having been the victim of 2. All Members, in order to ensure to all of them the
an armed attack. Reliance on collective self-defense of rights and benefits resulting from membership, shall
course does not remove the need for this. There appears now fulfill in good faith the obligations assumed by them
to be general agreement on the nature of the acts which in accordance with the present Charter.
can be treated as constituting armed attacks. In particular, 3. All Members shall settle their international disputes
it may be considered to be agreed that an armed attack must by peaceful means in such a manner that
be understood as including not merely action by regular international peace and security, and justice, are not
armed forces across an international border, but also 'the endangered.
sending by or on behalf of a State of armed bands, 4. All Members shall refrain in their international
groups, irregulars or mercenaries, which carry out acts of relations from the threat or use of force against the
armed force against another State of such gravity as to territorial integrity or political independence of any
amount to' (inter alia) an actual armed attack conducted by state, or in any other manner inconsistent with the
regular forces, 'or its substantial involvement therein'. This Purposes of the United Nations.
description, contained in Article 3, paragraph (g), of the 5. All Members shall give the United Nations every
Definition of Aggression annexed to General Assembly assistance in any action it takes in accordance with
resolution 3314 (XXIX), may be taken to reflect customary the present Charter, and shall refrain from giving
international law. The Court sees no reason to deny that, in assistance to any state against which the United
customary law, the prohibition of armed attacks may apply to Nations is taking preventive or enforcement action.
the sending by a State of armed bands to the territory of 6. The Organization shall ensure that states which are
another State, if such an operation, because of its scale and not Members of the United Nations act in
effects, would have been classified as an armed attack accordance with these Principles so far as may be
rather than as a mere frontier incident had it been carried necessary for the maintenance of international
out by regular armed forces. But the Court does not believe peace and security.
that the concept of 'armed attack' includes not only acts by 7. Nothing contained in the present Charter shall
armed bands where such acts occur on a significant authorize the United Nations to intervene in matters
which are essentially within the domestic jurisdiction
of any state or shall require the Members to submit
21
Should the Security Council consider that measures provided for in Article such matters to settlement under the present
41 would be inadequate or have proved to be inadequate, it may take such Charter; but this principle shall not prejudice the
action by air, sea, or land forces as may be necessary to maintain or
application of enforcement measures under Chapter
restore international peace and security. Such action may include
demonstrations, blockade, and other operations by air, sea, or land forces of Vll.
Members of the UN.
22
Nothing in the present charter shall impair the inherent right of individual Equality among states does not signify parity in physical
or collective self-defense if an armed attack occurs against a Member of the power, political influence or economic status or prestige. It
UN, until the SC has taken measures necessary to maintain international
peace and security. Measures taken by Members in the exercise of this means that all the rights of a state, regardless of their
right of self-defense shall be immediately reported to the number, must be observed and respected by the
SC and shall not in any way affect the authority and responsibility of the international community in the same manner that the rights
SC under the present Charter to take at any time such action as it deems of other states are observed and respected.
necessary in order to maintain or restore international peace and security.

Accordingly, all members of the UN have each one vote in the them, States are able to deal more directly and closely with
General Assembly, all votes having equal weight, and are each other in the improvement of their mutual intercourse.
generally eligible for positions in the various organs of the
UN. Each state has the rights to the protection of its Q: Is the State obliged to maintain diplomatic relations with
nationals, to make use of the open seas, or to acquire or other States?
dispose of territory.
A: No, as the right of legation is purely consensual. If it wants
Under the rule of par in parem non habet imperium, even the to, a State may shut itself from the rest of the world, as Japan
strongest state cannot assume jurisdiction over another did until the close of the 19th century. However, a policy of
state, no matter how weak, or question the validity of its acts isolation would hinder the progress of a State since it would
in so far as they are made to take effect within its territory. be denying itself of the many benefits available from the
All states, including the smallest and the least influential, are international community.
also entitled to their dignity and the protection of their honor
and reputation. Q: Who are the agents of diplomatic intercourse?
RIGHT TO PROPERTY AND JURISDICTION A:

1. Head of State
Q: What are the bases of the right to jurisdiction under 2. Foreign secretary or minister
international law? 3. Members of diplomatic service
4. Special diplomatic agents appointed by head of the
A: State
1. Territoriality 5. Envoys ceremonial
2. Nationality
3. Protective Q: What is diplomatic corps?
4. Universality
A: It is a body consisting of the different diplomatic
Territoriality Principle representatives who have been accredited to the same local
or receiving State. It is headed by a doyun de corps, who, by
Q: What is the territoriality principle? tradition, is the oldest member within the highest rank or, in
Catholic countries, the papal nuncio.
A: With respect to all persons, things, transactions, or
happenings within its territorial jurisdiction, a state exercises Q: What are the functions of a diplomatic mission?
exclusive jurisdiction.
A:
This is the most common basis of jurisdiction. 1. Represent sending State in receiving State
2. Protect in receiving State interest of sending State
Q: What are the exceptions? and its nationals
3. Negotiate with government of receiving State
A: 4. Promote friendly relations between sending and
1. Foreign heads of states receiving States and developing their economic,
2. Diplomats and consuls (Diplomatic immunities and cultural, and scientific relations
privileges). 5. Ascertain by all lawful means conditions and
developments in receiving State and reporting
NOTE: Under the Vienna Convention on Consular Relations, thereon to government of sending State
diplomats and consuls enjoy immunity from local jurisdiction. 6. In some cases, represent friendly governments at
their request
The immunities and privileges of diplomats are broader than
the immunities and privileges of consuls. Q: What are the classes of heads of a diplomatic mission?
Right of legation A:
1. Ambassadors or nuncios accredited to Heads of
Q: Discuss the right of legation. State and other heads of missions of equivalent rank
2. Envoys ministers and internuncios accredited to
A: The exercise of the right of legation is one of the most heads of State
effective ways of facilitating and promoting intercourse 3. Charge d’ affaires accredited to ministers of foreign
among nations. Through the active right of sending affairs
diplomatic representatives and the passive right of receiving

Q:Is the receiving State obliged to accept a representative
from another State? A:
1. Personal inviolability – members of diplomatic
A: No, the appointment of diplomats is not merely a matter mission shall not be liable for any form of arrest or
of municipal law for the receiving State is not obliged to imprisonment
accept a representative who is a persona non grata to it. 2. Inviolability of premises – premises, furnishings and
Indeed, there have been cases when duly accredited means of transport shall be immune from search,
diplomatic representatives have been rejected, resulting in seizure, attachment or execution.
strained relations between the sending and receiving State. 3. Archives or documents shall be inviolable
4. Diplomatic agents are immune from criminal, civil or
Q: What does persona non grata mean? administrative liability.
5. Receiving State shall protect official communication
A: In international law and diplomatic usage, it means a and official correspondence of diplomatic mission.
person not acceptable (for reasons peculiar to himself) to the 6. Receiving State shall ensure all members of
court or government to, which it is proposed to accredit him diplomatic mission freedom of movement and
in the character of an ambassador or minister. travel.
7. A diplomatic agent is exempted to give evidence as
Agreation a witness.
8. Exemption from general duties and taxes including
Q: What is agreation? custom duties with certain exceptions.
9. Use of flag and emblem of sending State on premises
A: It is a practice of the States before appointing a particular of receiving State.
individual to be the chief of their diplomatic mission in order
to avoid possible embarrassment. Q: What are the exceptions to the privileges and immunities
of diplomatic representatives?
It consists of two acts:
A:
1. The inquiry, usually informal, addressed by the
sending State to the receiving State regarding the 1. Any real action relating to private immovables
acceptability of an individual to be its chief of situated in the territory receiving State unless the
mission; and envoy holds the property in behalf of the sending
2. The agreement, also informal, by which the receiving State
State indicates to the sending state that such person, 2. Actions relating to succession where diplomatic
would be acceptable. agent is involved as executor, administrator, heirs or
legatee as a private person and not on behalf of the
Letter of credence sending State
3. An action relating to any professional or commercial
Q: What is a letter of credence? activity exercised by the diplomatic agent in the
receiving State outside his official functions
A: This is the document by which the envoy is accredited by
the sending State to the foreign State to which he is being Q: Who may waive diplomatic immunity and privileges?
sent. It designates his rank and the general object of his
mission, and asks that he be received favorably and that full A: The waiver may be made expressly by the sending State. It
credence be given to what he says on behalf of his State. may also be done impliedly, as when the person entitled to
the immunity from jurisdiction commences litigation in the
Letter of Patent local courts and thereby opens himself to any counterclaim
directly connected with the principal claim.
Q: What is a letter patent?
NOTE: Waiver of immunity from jurisdiction with regard to
A: The appointment of a consul is usually evidenced by a civil and administrative proceedings shall not be held to mean
commission, known sometimes as letter patent or implied waiver of the immunity with respect to the execution
letred’provision, issued by the appointing authority of the of judgment, for which a separate waiver shall be necessary.
sending State and transmitted to the receiving State through
diplomatic channels. Q: Is diplomatic immunity a political question?
Q: What are the privileges and immunities of diplomatic

representatives?

A: Diplomatic immunity is essentially a political question and the government of the country where they exercised their
the courts should refuse to look beyond the determination by consular functions; they deal directly with local authorities.
the executive branch.
Q: What is the difference between diplomats and consuls?
Q: Who else besides the head of the mission are entitled to
diplomatic immunities and privileges? A: Diplomats are concerned with political relations of States
while consuls are not concerned with political matters. The
A: They are also enjoyed by the diplomatic suite or retinue, latter attend rather to administrative and economic issues.
which consists of the official and non‐official staff of the
mission. The official staff is made up of the administrative Q: What are the two kinds of consul?
and technical personnel of the mission, including those
performing clerical work, and the member of their respective A:
families. The non‐official staff is composed of the household
help, such as the domestic servants, butlers, and cooks and 1. Consulesmissi – Professional or career consuls who
chauffeurs employed by the mission. are nationals of the sending State and are required
to devote their full time to the discharge of their
NOTE: As a rule, however, domestic servants enjoy duties.
immunities and privileges only to the extent admitted by the 2. Consuleselecti – May or may not be nationals of the
receiving State and insofar as they are connected with the sending State and perform their consular functions
performance of their duties. only in addition to their regular callings.
Q: What are the grounds for termination of diplomatic NOTE: Examples of regular callings include acting as notary,
relations under municipal law? civil registrar and similar administrative capacities and
protecting and assisting the nationals of the sending State.
A: RADAR
1. Resignation Q: What are the ranks of consuls?
2. Accomplishment of the purpose
3. Death A:
4. Abolition of the office 1. Consul‐general – Heads several consular districts, or
5. Removal one exceptionally large consular district;
2. Consul – Takes charge of a small district or town or
Q: What are the grounds for termination of diplomatic port;
relation under international law? 3. Vice‐consul – Assist the consul; and
4. Consular agent – Usually entrusted with the
A: performance of certain functions by the consul.
1. War– outbreak between the sending and the Q: What are the duties of consuls?
receiving States.
2. Extinction of either the sending State or the A:
receiving State 1. Protection of the interests of the sending State and
3. Recall– demanded by the receiving State when the its nationals in the receiving State.
foreign diplomat becomes persona non grata 2. Promotion of the commercial, economic, cultural,
and scientific relations of the sending and receiving
Q: Will the termination of diplomatic relations also States.
terminate consular relations between the sending and 3. Observes the conditions and developments in the
receiving States? receiving State and report the same to the sending
State.
A: No. Consuls belong to a class of State agents distinct from 4. Issuance of passports and other travel documents to
that of diplomatic officers. They do not represent their State nationals of the sending State and visas or
in its relations with foreign States and are not intermediaries appropriate documents to persons wishing to travel
through whom matters of State are discussed between to the sending State.
governments. 5. Supervision and inspection of vessels and aircraft of
the sending State.
Consuls look mainly after the commercial interest of their
own State in the territory of a foreign State. They are not Q: Where do consuls derive their authority?
clothed with diplomatic character and are not accredited to

A: Consuls derive their authority from two principal sources, GR: The agents of the receiving GR: The agents of the receiving
to wit: state may not enter the state may not enter the consular
premises of the mission premises
1. Letter patent or letter ‘de provision – which is the XPN: consent of the head of the XPN: consent of the head of the
mission consular post consent is
commission issued by the sending State, and
assumed in case of fire or other
2. Exequatur – which is the permission given them by disasters requiring prompt
the receiving State to perform their functions protective action
therein. Personal baggage of a Consular bag shall not be
diplomatic agent shall not be opened
Q: Do consuls enjoy their own immunities and privileges? opened It may be requested that the bag
be opened in their presence by
A: Yes, but not to the same extent as those enjoyed by the an authorized representative of
diplomats. Like diplomats, consuls are entitled to: the receiving state if they have
serious reason to believe that
the bag contains objects of
1. Inviolability of their correspondence, archives and other articles, documents,
other documents correspondence or articles
2. Freedom of movement and travel Not obliged to give evidence as a May be called upon to attend as
3. Immunity from jurisdiction for acts performed in witness a witness; if declined, no
their official capacity; and coercive measure or penalty
4. Exemption from certain taxes and customs duties may be applied
However, consuls are liable to: Q: Discuss the differences, if any, in the privileges or
1. Arrest and punishment for grave offenses; and immunities of diplomatic envoys and consular officers from
2. May be required to give testimony, subject to the civil and criminal jurisdiction of the receiving State.
certain exceptions.
A: A diplomatic agent shall enjoy immunity from the criminal
NOTE: Members of a consular post are under no obligation to jurisdiction of the receiving State. He shall also enjoy
give evidence on the following situations: immunity from its civil and administrative jurisdiction except
a. Concerning matters connected with the exercise of in the case of:
their functions 1. A real action relating to private immovable property
b. To produce official correspondence and documents situated in the territory of the receiving State, unless
c. To give evidence as expert witness with regard to he holds it on behalf of the sending State for the
the law of the sending State purpose of the mission;
2. An action relating to succession in which the
The consular offices are immune only: diplomatic agent is involved as executor,
1. With respect to that part where the consular work is administrator, heir or legatee as private person and
being performed; and not on behalf of the sending State;
2. May be expropriated by the receiving state for 3. An action relating to any professional or commercial
purposes of national defense or public utility. activity exercised by the diplomatic agent in the
receiving State outside of his official functions.
With respect to expropriation by the receiving State, steps (Article 32, Vienna Convention of Diplomatic
shall be taken to avoid impeding the performance of consular Relations)
functions, and prompt, adequate and effective compensation
shall be paid by the sending State. A consular officer does not enjoy immunity from the criminal
jurisdiction of the receiving State and are not amenable to
Q: What are the differences between Diplomatic Immunity the jurisdiction of the judicial or administrative authorities of
and Consular Immunity? the receiving State in respect of acts performed in the
exercise of consular functions.
A:
However, this does not apply in respect of a civil action
DIPLOMATIC CONSULAR either:
“Premises of the mission” “Consular premises” includes 1. Arising out of a contract concluded by a consular
includes the building or parts of the buildings or parts of officer in which he did not enter expressly or
building and the land buildings and the land impliedly
irrespective of the ownership irrespective of ownership used 2. By a third party for damages arising from an accident
used for the purpose of the exclusively for the purposes of in the receiving State caused by a vehicle, vessel or
mission including the residence consular posts
of the head of mission

aircraft. (Article 41 and 43, Vienna Convention on A: As a general rule, the Universality Principle is not allowed.
the Consular Relations) Under the Universality Principle, extraterritorial jurisdiction is
claimed by states over all crimes regardless of where they are
Q: What are the grounds for termination of consular office? committed or who committed them whether nationals or
not.
A:
1. Death For example, if a crime as committed in Alaska by a non-
2. Recall Filipino national, we cannot claim jurisdiction as this is
3. Dismissal generally forbidden in international law.
4. Notification by the receiving State to the sending
State that it has ceased to consider as member of Q: What is the exception?
the consular staff
5. Withdrawal of his exequatur by the receiving State. A: When the Universality Principle is invoked with respect to
6. War‐ outbreak of war between home state and crime which threaten the international community as a whole
receiving state and which are considered criminal offenses in all countries,
such as:
Q: Again, what are the exceptions to the territoriality a. War crimes
principle? b. Genocide
c. Piracy
A: d. Slavery
1. Foreign heads of states e. Hijacking
2. Diplomats pursuant to the Vienna Convention on f. Terrorism and the like
Diplomatic Relations and consuls to a limited extent
pursuant to the Vienna Convention on Consular
Relations
3. Foreign naval vessels and embassy compounds NATIONALITY AND STATELESSNESS
based on the Principle of Exterritoriality
4. Foreign merchant marine vessels under either the Q: What is nationality?
French Rule or the English Rule
5. Foreign armies passing through or stationed in A: It is membership in a political community with all its
another state by the provisions of a treaty concomitant rights and obligations. It is the tie that binds an
individual to his state, from which he can claim protection
Nationality Principle and whose laws he is obliged to obey.
Q: What do you mean by the Nationality Principle? Q: What is citizenship?
A: A state may punish offenses committed by its nationals A: It has a more exclusive meaning in that it applies only to
anywhere in the world. In civil matters the personal laws of certain members of his state accorded more privileges that
the country follows their nationals wherever they are. the rest of the people who are at allegiance. Its significance is
municipal and not international.
In the Philippines, Art. 15 of the NCC follow the nationality
principle. Q: What is multiple nationality?
Protective Principle A: It is the possession by an individual of more than one

nationality. It is acquired as the result of the concurrent
Q: State the Protective Principle? application to him of the conflicting municipal laws of two or
more States claiming him as their national.
A: A state may claim extrajudicial committed abroad which
are prejudicial to their national security or vital interests even Acquisition of Nationality
where the offenses are perpetrated by non-nationals.
Q: How may nationality be acquired?
Art. 2 of the RPC follows the Protective Principle.
A:
Universality Principle
1. By birth
Q: State the Universality Principle. Is it allowed? 2. By naturalization

An individual acquires the nationality of the state where he is The Hague Convention of 1930 adopted certain rules
born jure soli or the nationality of his parents jure sanguinis. calculated to avoid the condition of statelessness and all its
attendant inconveniences. In the case of naturalization, the
Q: What is naturalization? wife and children retain their existing nationality if they are
also bit naturalized and, moreover, the wife will acquire her
A: It is a process by which a foreigner acquires, voluntarily or husband’s new nationality, if permitted, only with her
by operation of law, the nationality of another state. consent. The adopted child’s existing nationality is also not
lost if he does not acquire the adopter’s nationality. In other
Multiple Nationality cases, it is provided that children shall have the nationality of
the state of their birth, whenever their parents are:
An individual may sometimes find himself possessed of more
than one nationality because of the concurrent application to 1. Unknown
him of the multiple laws of the states claiming him as their 2. Stateless or of unknown nationality
national. For example, a child born in the US of Filipino 3. A father who is stateless or of unknown nationality
parentage would be a citizen of that country under the jus and a mother who is a national of the state where
soli as prescribed by American law and at the same time a they are born.
citizen of the Philippines under our Constitution, which
recognizes only the jus sanguinis. Rights of a stateless person
Loss of Nationality Q: What is a stateless person suffered a wring through the

act or omission of another state?
Nationality may be lost voluntarily or involuntarily. The
voluntarily methods include renunciation, express or implied, A: A stateless individual is powerless to assert any right that
and request for release, both of which usually precede the otherwise would be available to him under international law
acquisition of new nationality. The involuntary methods are where he is a national of a particular state. Any wrong
forfeiture as a result of some disqualification or prohibited suffered by him through the act or omission of a state would
act like enlistment in a foreign army or long continued be damnum absque injuria for in theory, no state has been
residence in a foreign state and substitution of one offended and no international delict committed.
nationality for another following a change of sovereignty or
any act conferring derivative naturalization. Q: What are the rights that a stateless person may invoke?
STATELESSNESS A:
Q: What is statelessness? 1. Right to religion

2. Access to the courts
A: It is the condition or status of an individual who is born 3. Rationing of products, in short supply
without any nationality or who loses his nationality without 4. Elementary education
retaining or acquiring another. 5. Public relief and assistance
6. Labor legislation
Example of the first case would be that o a child born in a 7. Social security
state where only the jus sangunis is recognized to parents
whose state observes only the jus soli. The second case may They also agree to accord to them treatment not less
be illustrated by an individual who after renouncing his favorable than that accorded to aliens generally in the same
original nationality in order to be naturalized in another state circumstances. The Convention also provides for the issuance
is subsequently denaturalized and is thereafter denied of the identity papers and travel documents to the stateless
repatriation by his former country. persons.
DE JURE STATELESS DE FACTO STATELESS NOTE: The terms of the Universal Declaration of Human
PERSONS PERSONS Rights are sufficiently bound to encompass the stateless
stripped of their nationality those who possess a person with its protection and sympathy as a member of the
by their former government nationality whose country human family.
and without having an does not give them
opportunity to acquire protection outside their own Q: What are the consequences of statelessness?
another country and who are
commonly referred to as A:
refugees

1. No state can intervene or complain in behalf of Liability will attach the State will be held liable
stateless person for an international delinquency immediately as their acts only if, by reason of its
committed by another state in inflicting injury upon may not be effectively indifference in preventing or
him; prevented or reversed under punishing it, it can be
2. He cannot be expelled by the state if he is lawfully in the constitution or laws of considered to have connived
its territory except on grounds of national security or the state in effect in its commission
public order;
3. He cannot avail himself of the protection and Q: What are the conditions for the enforcement of claim
benefits of citizenship like securing for himself a under the doctrine?
passport or visa and personal documents.
A:
1. Nationality of claim
TREATMENT OF ALIENS 2. Exhaustion of local remedies
3. No waiver
Q: What is the “Doctrine of State Responsibility to Aliens”? 4. No unreasonable delay in filing claim
5. No improper behavior by injured alien
A: A state is under obligation to make reparation to another
state for the failure to fulfill its primary obligation to afford, in NOTE: The doctrine of state responsibility is applied more
accordance with international law, the proper protection due frequently to tortuous rather than contractual liability
to an alien who is a national of the latter state. because of the unwillingness of most states to act as
“collection agencies” for their nationals entering into private
Under this doctrine, a state may be held responsible for: agreements with or in foreign countries.
a. An international delinquency; This is similar to culpa aquiliana or quasi-delict under the

b. Directly or indirectly imputable to it; Civil Code or torts under common law system, that is why it is
c. Which causes injury to the national of another state. loosely referred to as “international tort”
GR: State has no legal obligation to admit aliens The more recent example is the Luneta hostage-taking
incident. The government of Hong Kong asks for indemnity
XPN: State may be held responsible for an international from the Philippines because of the failure of our authorities
delinquency directly or indirectly imputable to it which causes to protect their nationals.
injury to the national of another State. Liability will attach to
the State where its treatment of the alien falls below the Avoidance of State Responsibility
international standard of justice or where it is remiss in
according him the protection or redress that is warranted by The doctrine of state responsibility is applied more frequently
the circumstances. to tortuous rather than contractual liability because of the
unwillingness of most states to act as “collection agencies”
Q: What are the requisites for the application of “Doctrine for their nationals entering into private agreements with or in
of State Responsibility to Aliens”? foreign countries. Yet, to avoid the intervention of the alien’s
state in contracts of this nature, the local state sometimes
A: incorporates therein what is known as the Calvo Doctrine.
1. An act or omission in violation of international law CALVO DOCTRINE

2. Which is imputable or attributable to the state
3. Which results in an injury to the claimant state This is a stipulation by which the alien waives or restricts his
either directly or indirectly through damage to a right to appeal to his own state in connection with any claim
national arising from the contract and agrees to limit himself to
remedies available under the laws of the local state.
DIRECT STATE INDIRECT STATE
RESPONSIBILITY or RESPONSIBILITY or Insofar as It requires the alien to exhaust the remedies
INTERNATIONAL INTERNATIONAL available in the local state, the Calvo Clause may be enforced
DELINQUENCY BY SUPERIOR DELINQUENCY BY INFERIOR as a lawful condition of the contract.
GOV’T OFFICIALS GOV’T OFFICIALS
Ex: chief executive, national If committed by inferior EXTRADITION AND DEPORTATION
legislature government officials, or
more so, private individuals, Q: What is extradition?

4. Political or religious offenders are generally not
A: It is the surrender of a person by one state to another subject to extradition. As held, to constitute an
state where he is wanted for prosecution or if already offense of a political character, there must be 2 or
convicted, for punishment. It is based on: more parties in the state, each seeking to impose the
government of their own choice on the other.
a. Treaty, or in its absence
b. The local state may grant asylum to the fugitive NOTE: Attentant clause is a provision in an extradition treaty
c. If surrender is made, the same is merely a gesture of which states that the murder or assassination of the head of a
comity state or any member of his family will not be considered as a
political offense and therefore extraditable. Neither is the
Q: How is it different from deportation? crime of genocide, which may consist of nay of the following
acts, committed with intent to destroy, in whole or in part, a
A: national, ethnic, racial, or religious group as such:
EXTRADITION DEPORTATION a. Killing members of the group;

it is effected at the request of whereas deportation is the b. Causing serious bodily or mental harm to
the state of origin unilateral act of the local members of the group;
state; c. Deliberately inflicting on the group conditions of
t is based on offenses whereas deportation is based life calculated to bring about its physical
generally committed in the on causes arising in the local destruction in whole or in part;
state of origin state; d. Imposing measures intended to prevent births
it calls for the return of the whereas an undesirable alien within the group;
fugitive to the state of origin may be deported to a state e. Forcibly transferring children of the group to
other than his own or the another group.
state of origin.
5. The offense must have been committed within the
territory of the requesting State or against its
Basis of Extradition interest;
6. Double Criminality Rule – The act for which the
Extradition is required only if there is a treaty between the extradition is sought must be punishable in both
state of refuge and the state of origin. In the absence of such States
treaty, the local state has every right to grant asylum to the
fugitive and to refuse even if there to deliver himself back to Principle of specialty
the latter state even if he is its national.
Q: What is the principle of specialty?
Fundamental Principles
A: A fugitive who is extradited may be tried only for the crime
1. Based on the consent of the State of asylum as specified in the request for extradition and included in the list
expressed in a treaty or manifested as an act of of offices in the extradition treaty
goodwill;
2. Principle of Specialty – a fugitive who is extradited Attentat Clause
may be tried only for the crime specified in the
request for extradition and included in the list of GR: Political and religious leaders are generally not subject to
offenses in the extradition treaty. If he is charged extradition
with any other offense committed before his escape,
the state of refuge—and not the accused--has the Q: What is the Attentat Clause?
right to object; nevertheless the prosecution will be
allowed if the extraditing state agrees or does not A: The murder of the head of state or any member of his
complain; family is not regarded as a political offense.
3. Any person may be extradited, whether he be a
national of the requesting State, of the State of Rule of double criminality
refuge or of another State. He need not be a citizen
of the requesting State. The practice of many states Q: What is the rule of double criminality?
now, however, is not to extradite their own
nationals but to punish them under their own laws in A: The act for which the extradition is sought must be
accordance with the nationality principle of criminal punishable in both the requesting and requested state
investigation.

Procedure Secretary of
Justice v. Sui Generis nature
Q: What is the procedure for extradition when a foreign State Lantion, Oct.
requests from the Philippines? 27, 2000 An extradition proceeding is sui generis. It
(Puno) is not a criminal proceeding which will call
A: into operation all the rights of an accused as
guaranteed by the Bill of Rights. To begin
1. File/issue request through diplomatic representative with:
with, the process of extradition does not
a. Decision of conviction
b. Criminal charge and warrant of arrest
involve the determination of the guilt or
c. Recital of facts innocence of an accused. His guilt or
d. Text of applicable law designating the offense innocence will be adjudged in the court of
e. Pertinent papers the state where he will be extradited. Hence,
as a rule, constitutional rights that are only
2. DFA forwards request to DOJ relevant to determine the guilt or innocence
3. DOJ files petition for extradition with RTC of an accused cannot be invoked by an
4. Upon receipt of a petition for extradition and its extraditee especially by one whose
supporting documents, the judge must study them and
extradition papers are still undergoing
make, as soon as possible, a prima facie finding whether
(a) they are sufficient in form and substance, (b) they show
evaluation.
compliance with the Extradition Treaty and Law, and (c)
the person sought is extraditable. At his discretion, the Extradition v. Criminal proceeding
judge may require the submission of further
documentation or may personally examine the affiants As to nature of proceeding
and witnesses of the petitioner. If, in spite of this study
and examination, no prima facie finding is possible, the 1. An extradition proceeding is
petition may be dismissed at the discretion of the judge. summary in nature while criminal
5. On the other hand, if the presence of a prima facie case is
proceedings involve a full-blown
determined, then the magistrate must immediately issue a
warrant for the arrest of the extraditee, who is at the
trial.
same time summoned to answer the petition and to
appear at scheduled summary hearings. As to application of Rules of Evidence
6. Hearing (provide counsel de officio if necessary);
7. Appeal to CA within ten days whose decision shall be final 2. In contradistinction to a criminal
and executory; proceeding, the rules of evidence in
8. Decision forwarded to DFA through the DOJ; an extradition proceeding allow
9. Individual placed at the disposal of the authorities of admission of evidence under less
requesting State – costs and expenses to be shouldered by
stringent standards.
requesting State.
As to Quantum of evidence required

Jurisprudence
3. In terms of the quantum of evidence
Secretary of Extradition is the process by which persons
to be satisfied, a criminal case
Justice v. charged with or convicted of crime against
requires proof beyond reasonable
Lantion, Jan. the law of a State and found in a foreign
doubt for conviction while a fugitive
18, 2000 State are returned by the latter to the former
may be ordered extradited "upon
(Puno, for trial or punishment.
showing of the existence of a prima
Dissenting a. It applies to those who are merely
facie case."
Opinion) charged with an offense but have
not been brought to trial; to those
As to when the judgment becomes
who have been tried and convicted
executory
and have subsequently escaped
from custody; and those who have
4. Finally, unlike in a criminal case
been convicted in absentia.
where judgment becomes executory
b. It does not apply to persons merely
upon being rendered final, in an
suspected of having committed an
extradition proceeding, our courts
offense but against whom no
may adjudge an individual
charges has been laid or to a person
extraditable but the President has
whose presence is desired as a
the final discretion to extradite him.
witness or for obtaining or enforcing
The United States adheres to a
a civil judgment.
similar practice whereby the the Nuremberg and Tokyo trials after World
Secretary of State exercises wide War II resulted in the unprecedented
discretion in balancing the equities spectacle of individual defendants for acts
of the case and the demands of the characterized as violations of the laws of war,
nation's foreign relations before crimes against peace, and crimes against
making the ultimate decision to humanity.
extradite
Gov’t f USA The Philippines, along with the other
v. Purganan, Purpose of extradition members of the family of nations, committed
Sept. 24, to uphold the fundamental human rights as
2002 The ultimate purpose of extradition well as value the worth and dignity of every
(Panganiban) proceedings in court is only to determine person.
whether the extradition request complies
with the Extradition Treaty, and whether the Right to bail
person sought is extraditable.
If bail can be granted in deportation cases,
Nature of extradition we see no justification why it should not also
be allowed in extradition cases. Likewise,
Extradition proceedings are not equivalent to considering that the Universal Declaration of
a criminal case in which guilt or innocence is Human Rights applies to deportation cases,
determined. there is no reason why it cannot be invoked
in extradition cases. After all, both are
An extradition case is not one in which the administrative proceedings where the
constitutional rights of the accused are innocence or guilt of the person detained is
necessarily available. not in issue.
xtradition is essentially an executive, not a Clearly, the right of a prospective extraditee

judicial, responsibility arising out of the to apply for bail in this jurisdiction must be
presidential power to conduct foreign viewed in the light of the various treaty
relations and to implement treaties. obligations of the Philippines concerning
respect for the promotion and protection of
Rights of an extradite human rights. Under these treaties, the
presumption lies in favor of human liberty.
Potential extraditees are entitled to the
rights to due process and to fundamental Q: Should the judge inform the potential extraditee of the
fairness. Due process does not always call for pending petition for extradition prior to the issuance of
a prior opportunity to be warrant of arrest?
heard. A subsequent opportunity is sufficient
due to the flight risk involved. Indeed, A: No. Prior to the issuance of the warrant, the judge must
available during the hearings on the petition not inform or notify the potential extraditee of the pendency
and the answer is the full chance to be heard of the petition, lest the latter be given the opportunity to
and to enjoy fundamental fairness that escape and frustrate the proceedings. The foregoing
is compatible with the summary natureof procedure will “best serve the ends of justice” in extradition
extradition. cases.
Gov’t of
Hong Kong v. Modern trend in PIL: On human dignity Q: Can a State compel another State to extradite a criminal
Olalia, April without going through the legal process?
19, 2007 The modern trend in public international
(Sandoval- law is the primacy placed on the worth of A: No.
Gutierrez) the individual person and the sanctity of
human rights. Slowly, the recognition that Q: Is an extradition proceeding a criminal proceeding?
the individual person may properly be a
subject of international law is now taking A: No. Extradition is not a criminal proceeding which will call
root. The vulnerable doctrine that the into operation all the rights of an accused provided in the bill
subjects of international law are limited only of rights.
to states was dramatically eroded towards
the second half of the past century. For one, Q: Is a petition for bail valid in extradition cases?
the basis of an extradition own interest.
A: Yes. The Philippines, along with other members of the treaty
family of nations, committed to uphold the fundamental It is the surrender of a person Based on causes arising in
human rights as well as value the worth and dignity of every by one state to another state the local State
person. The commitment is enshrined in Section 11, Article II where he is wanted for
of our Constitution which provides: “The State values the prosecution or if already
dignity of every human person and guaranteed full respect convicted, for punishment.
for human rights.” The Philippines, therefore, has the Calls of the return of the Undesirable alien may be
responsibility of protecting and promoting the right of every fugitive to the State or origin deported to a State other
person to liberty and due process, ensuring that those than his own or the State of
detained or arrested can participate in the proceedings origin
before a court, to enable it to decide without delay on the
legality of the detention and order their release if justified. In Right of Asylum, Refugees, Stateless Persons
other words, the Philippine authorities are under obligation
to make available to every person under detention such Q: What is the Right of asylum?
remedies which safeguard their fundamental right to liberty.
These remedies include the right to be admitted to bail. A: State inferred from its territorial supremacy to allow a
prosecuted alien to enter and to remain on its territory under
Rights of a person arrested and detained in another state its protection and thereby grant asylum to him.
Q: What are the rights of a person arrested and detained in In the absence of any international treaty stipulating to the
another State? contrary, no State is, under international law, obliged to
refuse admission into its territory such fugitive, or in case he
A: has been admitted, to expel him or deliver him up to the
1. Right to have his request complied with by the prosecuting office.
receiving State to so inform the consular post of his
condition NOTE: The Right of asylum is not a right possessed by an alien
2. 2. Right to have his communication addressed to the to demand that a State protect him and grant him asylum. At
consular post forwarded by the receiving State present, it is just a privilege granted by a State to allow an
accordingly alien escaping from the persecution of his country for
3. Right to be informed by the competent authorities political reasons remain and grant him asylum.
of the receiving without delay his rights as
mentioned above Q: Who are refugees?
Q: Is the retroactive application of the extradition treaty A: Any person who is outside the country of his nationality or
amounting to an ex post facto law? the country of his former habitual residence because he has
or had well founded fear of persecution by reason of his race,
A: No. In Wright v. Court of Appeals, G.R. No.113213, August religion, nationality, membership of a political group or
15,1994, it was held that the retroactive application of the political opinion and is unable or, because of such fear, is
Treaty of Extradition does not violate the prohibition against unwilling to avail himself of the protection of the government
ex post facto laws, because the Treaty is neither a piece of of the country of his nationality, or, if he has no nationality,
criminal legislation nor a criminal procedural statute. It to return to the country of his former habitual residence.
merely provided for the extradition of persons wanted for
offenses already committed at the time the treaty was Q: What are the elements before one may be considered as
ratified. a refugee?
Extradition v. Deportation A:
EXTRADITION DEPORTATION 1. The person is outside the country of his nationality,

It is the surrender of a person Expulsion of an alien who is or in the case of Stateless persons, outside the
by one state to another state considered undesirable by country of habitual residence;
where he is wanted for the local state, usually but 2. The person lacks national protection;
prosecution or if already not necessarily to his own 3. The person fears persecution in his own country.
convicted, for punishment. state.
The person fears persecution in his own country.
The surrender is made at the It is a unilateral act of the
request of the latter state on local state and is made in its

NOTE: The second element makes, a refugee a Stateless detention or exile
person. Because a refugee approximates a Stateless person, 4. The right to fair trial and
he can be compared to a vessel on the open sea not sailing presumption of innocence
under the flag of any State, or be called flo tsam and res 5. The right to nationality
nullius. Only a person who is granted asylum by another State 6. The right of freedom of
can apply for refugee status; thus the refugee treaties imply thought, conscience, and
the principle of asylum. religion
7. Right to freedom of opinion
REFUGEES INTERNALLY DISPLACED and expression
PERSON 8. The right to peaceful
People who have fled their Those who have not left their assembly and association
countries country’s territory 9. The right to take part in the
government of his country
Principle of Non-Refoulment SECOND a. Economic rights
GENERATION b. Social rights
Q: What is the Principle of Non‐Refoulment? c. Cultural rights
A: It posits that a State may not deport or expel refugees to Includes:

the frontiers of territories where their life or freedom would
be put in danger or at risk. 1. The right to social security
2. The right to work and
NOTE: The Principle of the non-refoulment was declared to protection against
be a generally accepted principle by the Convention relating unemployment
to the status of stateless persons. 3. The right to equal pay for
equal work
4. The right to form and join
trade unions
INTERNATIONAL HUMAN RIGHTS LAW 5. The right to rest and leisure
THIRD GENERATION a. Right to environment
International Declaration of Human Rights (UDHR) b. Right to peace
c. Right to development
Q: What is the so-called International Declaration of Human
Rights (UDHR)? Q: What are human rights?
A: It is the first comprehensive catalogue of human rights A: Those liberties, immunities and benefits, which all human
proclaimed by an international organization. beings should be able to claim “as a right of the society in
which they live – Louis Henkin
Q: Is UDHR a treaty?
Q: How are human rights classified?
A: No. It has no obligatory character because it was adopted
by the UN General Assembly as Resolution 217 (III). As a A:
resolution, it is merely recommendatory.
1. Individual rights
Q: What are the 3 generation of rights? 2. Collective rights (right to self‐determination of
people; the permanent sovereignty over natural
A: resources)
FIRST GENERATION a. Civil rights International Covenant on Civil and Political Rights (ICCPR)
b. Political rights
Q: What is the so-called International Covenant on Civil and
Includes: Political Rights (ICCPR)?
1. Right to life, Liberty, Privacy, A: It is an international covenant and is binding on the

Security of person respective state parties.
2. Prohibition against slavery
3. The right not to be NOTE: It includes the first generation of human rights
subjected to arbitrary arrest, although it lists more rights than the UDHR:

a. The right to own property 1. Law of Geneva – designed to safeguard military

b. The right to seek in other countries asylum from personnel who are no longer taking part in the
prosecution fighting and people not actively.
c. The right of members of ethnic, religious or linguistic 2. Law of the Hague – establishes the rights and
groups not to be deined to enjoy their own culture, obligations of belligerents in the conduct of military
to profess and practice their own religion, or to use operations, and limits the means of harming the
their own language enemy.
d. The right to compensation in case of unalwful arrest
e. The right to legal assistance om criminal prosecution Armed conflict
f. The right agaisnt self-incrimination
g. Protection against double-jeopardy Q: What is armed conflict?
h. The right to review by higher tribunal in case of
criminal conviction A: All cases of declared war or any other armed conflict which
i. Right of every child to nationality may arise between 2 or more of the Highest contracting
j. Right to prorection of a child as required by his parties, even if state of war is not recognized by one of them
status as minor (Art. 2, Geneva Convention of 1949).
k. Right of persons below 18 years old not to be
sentenced to death for crimes Categories of armed conflicts
l. Right against the carrying out of detath sentence on
the part of a pregnant woman International a. Exists when there is resort to
armed conflicts the use of force between 2
International Covenant on Economic, Social and Cultural states
Rights (ICESCR) Internal or Non- b. Between the government
international authorities and an organized
Q: What is the International Covenant on Economic, Socila armed conflict armed group
and Cultural Rights (ICESCR)? c. Between such groups within
the same territory
A: Like the ICCPR, it is an international covenant and is War of national a. An armed conflict may be of
binding on the respective State Parties. liberation such nature in which peoples
are fighting against colonial
NOTE: This embodies the second generation of human domination and alien
rights, although it lists more rights: occupation and against racist
regimes in the exercise of their
a. Right to health right to self-determinaiton
b. Right to strike b. It is considered an international
c. Right to be free from hunger armed conflict under Protocol 1
d. Rights to enjoy the benefits of scientific progress
e. Freedom of scientific research and creativity Q: What are the categories on the wars for national liberation?
A: Its categories are:
1. Colonial domination
INTERNATIONAL HUMANITARIAN LAW (IHL) AND
2. Alien occupation; and
NEUTRALITY 3. Racist regimes when the ‘people’s oppressed by these
regimes are fighting for self‐determination.
Q: What is International Humanitarian Law (IHL)?
A: It is the branch of PIL which governs armed conflicts to the

end that the use of violence is limited and that human CORE INTERNATIONAL OBLIGATIONS OF STATES IN IHL
suffering is mitigated or reduced by regulating or limiting the
means of military operations and by protecting persons who Q: What are the essential rules of IHL?
do not or no longer participate in hostilities. It is also known A:
as the law of armed conflict or the law of war.
1. The parties to a conflict must at all times distinguish
Q: What are the two branches of IHL? between the civilian population and combatants
2. Neither the civilian population as a whole nor
A: individual civilians may be attacked
3. Attacks may be made sole against military objectives 6. Parties who captured civilians and combatants shall
4. People who do not or can no longer take part in the respect their rights to life, dignity, and other
hostilities are entitled to respect for their lives and personal rights.
for their physical and mental integrity and must be
treated with humanity, without any unfavorable Hors de combat
distinction whatever.
5. It is forbidden to kill or wound an adversary who Q: When is a person considered as Hors de combat?
surrenders or who can no longer take part in the
fighting A:
6. Neither the parties to the conflict nor members of
their armed forces have an unlimited right to choose a. He is in the power of an adverse party to the conflict
methods and means of warfare b. Incapable of defending himself provided he abstains
7. It is forbidden to use weapons or methods of away from any hostile act and does not attempt to
warfare that are likely to cause unnecessary losses escape
and excessive suffering. c. He clearly expresses an intention to surrender
8. The wounded and sick must be collected and cared
for by the party to the conflict which has them in its Treatment of civilians
power.
9. Medical personnel and medical establishments, Q: What is the Martens clause/Principle of humanity?
transports and equipment must be spared. The red
cross or red crescent is the distinctive sign indicating A: In cases not covered by other international agreements,
that such persons and objects must be respected civilians and combatants remain under the protection and
10. Captured combatants and civilians who find authority of the principles of international law derived from
themselves under the authority of the adverse party established custom, from the principles of humanity and from
are entitled to respect for their lives, their dignity, the dictates of public conscience.
their personal rights and their political, religious and
other convictions and must be protected against all Prisoners of war
acts of violence or reprisals; entitled to exchange of
news with their families and receive aid and enjoy Q: What are the rights and privileges of prisoners of war?
basic judicial guarantees.
A:
1. They must be treated humanely, shall not be
subjected to physical or mental torture, shall be
PRINCIPLES OF INTERNATIONAL HUMANITARIAN LAW allowed to communicate with their families, and
may receive food, clothing, educational and religious
Q: What are the fundamental principles of the IHL? articles.
2. They may not be forced to reveal military data
A: except the name, rank, serial number, army and
regimental number and date of birth; they may not
1. Parties to armed conflict are prohibited from be compelled to work for military services
employing weapons or means of warfare that cause 3. All their personal belonging except their arms and
unnecessary damage or excessive suffering.(Principle military papers remain their property.
of prohibition of use of weapons of a nature to cause 4. They must be interned in a healthful and hygienic
superfluous injury or unnecessary suffering) place.
2. Parties to armed conflict shall distinguish between 5. After the conclusion of peace, their speedy
civilian populace from combatants and spare the repatriation must be accomplished as soon as is
former from military attacks.(Principle of distinction practicable
between civilians and combatants)
3. Persons hors de combat and those who do not take
part in hostilities shall be protected and treated
humanely without any adverse distinction. LAW ON NEUTRALITY
4. It is prohibited to kill or injure an enemy who
surrenders or who is a hors de combat. Q: What is neutrality?
5. The wounded and the sick shall be protected and
cared for by the party who is in custody of them. A: It is non‐participation, directly or indirectly, in a war
between contending belligerents. This exists only during war

time and is governed by the law of nations. Examples of these except for self‐defense, or enter into such international
states are Switzerland, Sweden, The Vatican City, Costa Rica. obligations as would indirectly involve a war.
NOTE: An attitude of impartiality adopted by third States Q: What are the rights and duties of a neutral State?
towards belligerents and recognized by the belligerents, such
attitude creating rights and duties between the impartial A:
States and the belligerents. 1. Abstain from taking part in the hostilities and from
giving assistance to either belligerent;
Q: What is non‐alignment (Neutralism)? 2. Prevent its territory and other resources from being
used in the conduct of hostilities(Right of territorial
A: This refers to peacetime foreign policies of nations desiring Integrity); and
to remain detached from conflicting interests of other nations 3. Acquiesce in certain restrictions and limitations the
or power groups. belligerents may find necessary to impose.
4. To continue diplomatic relations with other neutral
Q: What is a neutralist policy? states and with the belligerents (Right of diplomatic
communications).
A: It is the policy of the state to remain neutral in future wars.
Non‐alignment is the implementation of neutralism. Rules of Neutrality
Q: Distinguish neutrality from neutralization. Q: What are the rules of neutrality?
A: A:
NEUTRALITY NEUTRALIZATION 1. The territory of the neutral power is inviolable

Obtains only during war A condition that applies in 2. Belligerents are forbidden to move troops or
peace and war munitions of war and supplies across the territory of
A status created under A status created by means of a neutral power
international law, by a treaty 3. A neutral power is forbidden to allow belligerents to
means of a stand on the use its territory for moving troops, establishing
part of a state not to communication facilities, or forming corps of
side with any of the combatants
parties at war 4. Troops of belligerent armies received by a neutral
Brought about by a unilateral Cannot be effected by power in its territory shall be interned by way from
declaration by neutral state unilateral act only but must the theater of war
be recognized by other 5. The neutral power may supply them with food,
states. clothing, and relief required by humanity
6. If the neutral power receives escaped prisoners of
Q: Distinguish neutrality from non-alignment. war, it shall leave them a place of residence if it
allows them to remain in its territory
A: 7. The neutral power may authorize the passage into
its territory of the sick and wounded if the means of
NEUTRALITY NON-ALIGNMENT transport bringing them does not carry personnel or
Presupposes the existence of Exists during peace time materials of war.
war or conflict
Avoids involvement in a war Rejects imperialism and Other concepts
colonialism by the world
powers Q: What are some restraints on neutral States?
Pre‐determined position Evaluates the world political
events based on case‐to‐case A: The following are some restraints:
merits
1. Blockade
2. Contraband of war
3. Free ships make free goods
Q: When is a State considered as a neutralized State?
Blockade
A: Where its independence and integrity are guaranteed by
an international convention on the condition that such State
Q: What is a blockade?
obligates itself to never take up arms against any other State,
A: It is a hostile operation by means of which vessels and A: Belligerent warships and aircraft have the right to visit and
aircraft of one belligerent prevent all other vessels, including search neutral merchant vessels on the high seas to
those of neutral States, from entering or leaving the ports or determine whether they are in any way connected with the
coasts of the other belligerent, the purpose being to shut off hostilities.
the place from international commerce and communications
with other States. Unneutral service
Contraband What is unneutral service?
Q: What is contraband? A: It consists of acts, of a more hostile character than carriage

of contraband or breach of blockade, which are undertaken
A: It refers to goods which, although neutral property, may by merchant vessels of a neutral State in aid of any of the
be seized by a belligerent because they are useful for war and belligerents.
are bound for a hostile destination.
Right of Angary
They may be absolute, such as guns or ammunition, which
are useful for war under all circumstances; conditional, such Q: What is the Right of Angary?
as food and clothing, which have both civilian and military
utility; or under the free list, such as medicines, which are A: By the right of angary, a belligerent may, upon payment of
exempt from the law on contraband for humanitarian just compensation, seize, use or destroy, in case of urgent
reasons. necessity for purposes of offenses or defense, neutral
property found in enemy territory, or on the high seas.
Doctrine of Infection
Q: What are the requisites before Right of Angary may be
Q: What is the doctrine of Infection? exercised?
A: Innocent goods shipped with contraband may also be A:

seized. 1. That the property is in the territory under the control or
jurisdiction of the belligerent;
Doctrine of Ultimate Consumption 2. That there is urgent necessity for the taking; and
3. That just compensation is paid to the owner.
Q: What is the doctrine of Ultimate Consumption?
Q: When is neutrality terminated?
A: Goods intended for civilian use which may ultimately find
their way to and be consumed by belligerent forces may be A: When the neutral State itself joins the war or upon the
seized on the way. conclusion of peace.
Doctrine of Ultimate Destination
Q: What is the doctrine of Ultimate Destination? INTERNATIONAL ENVIRONMENTAL LAW
A: The liability of the contraband from being captured is Q: What is International Environmental Law (IEL)?
determined not by their ostensible but by their real
destination. A: It is the branch of public international law comprising
"those substantive, procedural and institutional rules which
Doctrine of “Free ships make free goods” have as their primary objective the protection of the
environment," the term environment being understood as
Q: What is the Doctrine of “Free ships make free goods”? encompassing "both the features and the products of the
natural world and those of human civilization.
A: A ship’s nationality determines the status of its cargo.
Thus, enemy goods on a neutral ship, excepting contraband, Principle 21 of the Stockholm Declaration
would not be subject to capture on the high seas.
Q: What is the Stockholm Declaration?
Concept of Visit and Search
A: The Stockholm Declaration, or the Declaration of the
Q: What is the concept of Visit and Search? 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 REFERENCES:
environment.
 Cruz, Public International Law, 2003
State have, in accordance with the Chapter of the UN and the  Magallona, Public International Law, 2005
principle of International Law, the sovereign right to exploit  UST Golden Notes 2011
their own resources pursuant to their own resources  Libertas Notes on Public International Law 2008
pursuant to their own resources pursuant to their
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 areas beyond
the limits of national jurisdiction.
Q: What is Principle 21 of the Stockholm Declaration?
A: This is one of the 26 principles contained in the Stockholm

Declaration on the Human Environment which was adopted
by acclamation f 113 states in the United Nations Conference
on the Human Environment in 1972. This is a landmark in the
development of international law on the protection of the
environment.
Q: What does Principle 21 of the Stockholm Declaration

provide?
A: This declares that States have
1. The sovereign right to exploit their own resources

pursuant to their own environmental policies, and
2. 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.
Q: Is Principle 21 of the Stockholm Declaration a part of

customary law?
A: Yes. The Court recognizes that the environment is daily

under threat and that the use of nuclear weapons could
constitute a catastrophe for the environment. The court also
recognizes that the environment is not an abstraction but
represents the living space, the quality of life and the very
human beings, including generations unborn. The existence
of the general obligation of States to ensure that activities
within their jurisdiction and control respect the environment
of other States or of areas beyond national control is now
part of the corpus of international law relating to the
environment. (Advisory Opinion on the Legality of the Threat
or Use of Nuclear Weapons, July 8, 1996). The Court has also
no difficulty in acknowledging that the concerns expressed by
Hungaray for its natural environment in the region affected
by the Gabcikovo‐Nagyamaros Project related to an
“essential interes” of the State, within the meaning given to
that expression in Article 33 of the Draft of the International
Law Commission.


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NOTES ON PUBLIC INTERNATIONAL LAW

Kenneth & King Hizon (3A) _____________________________________________

UNIVERSITY OF SANTO TOMAS

PUBLIC INTERNATIONAL LAW

INTRODUCTION a conflict between rule of international law and the

Facultad de Derecho Civil 1

Doctrine of Transformation A: The right of peoples everywhere to freely determine their

A: The international agreements must be performed in good 2. collective

Facultad de Derecho Civil 2

a. international conventions, whether general or 1. Declaring, confirming, or defining their

Facultad de Derecho Civil 3

Q: Give examples of General Principles of Law Recognized A:

A: It is an obligation of every State towards the international

Facultad de Derecho Civil 5

Subjects of international law Q: How is the primacy of states as subjects of international

GENERAL SPCEIAL Q: May individuals assume the status of subjects of

Q: What must a person who feels aggrieved by

Facultad de Derecho Civil 7

Effect of Recognition From the wordings of the Lateran Treaty, it is difficult to

Facultad de Derecho Civil 8

The Philippines has accorded the Holy See the

TERRITORY 1. Terrestrial Domain

A: The fixed portion of the surface of the Terrestrial Domain

Q: What is the right of innocent passage? 1. Territorial Sea

4. Continental Shelf A: The pursuit of a foreign vessel undertaken the coastal

XPNS: Flag of convenience refers to a state with which a vessel is

Facultad de Derecho Civil 11

Aerial Domain Discovery and Occupation

Q: What is Air Space? Q: What is the Doctrine of Effective Occupation?

Cessation may be voluntary, through a treat of sale or Sector Principle

a. Territorial Integrity A. Yes. Article I of the Constitution provides: “The national

Facultad de Derecho Civil 14

A: It is the right to exercise in a definite portion of the globe Q: Is sovereignty absolute?

Facultad de Derecho Civil 15

Facultad de Derecho Civil 16

Doctrine of Jus Postiliminum A: Sovereignty is not deemed suspended although acts of

Facultad de Derecho Civil 17

Facultad de Derecho Civil 18

Facultad de Derecho Civil 19

Example: The Japanese occupation in the government in the

Facultad de Derecho Civil 20

Facultad de Derecho Civil 21

A: No. A distinction should be made between the right of

Facultad de Derecho Civil 22

Q: Does the right to self determination extend to the UN CHARTER

A: No. The UN DRIP, while upholding the right of indigenous A:

FUNDAMENTAL RIGHTS OF STATES A:

Facultad de Derecho Civil 23

Facultad de Derecho Civil 24

No State or group of States has the right to intervene,

Facultad de Derecho Civil 25

Facultad de Derecho Civil 26

Facultad de Derecho Civil 27

Facultad de Derecho Civil 28

"Nothing in the present charter shall impair the inherent A:

Facultad de Derecho Civil 29

During the suspension of the

Facultad de Derecho Civil 30

Facultad de Derecho Civil 31

Facultad de Derecho Civil 32

Q: What are the effects when Congress declares a state of Intervention

Q: What is Independence? Q: Is intervention allowed under international law?

A: It is also known as external sovereignty. It signifies the A: