Public International Law Midterms Exam Keys 2015
DIRECT SOURCE OF PIL
Territorial Dispute
CASE IN POINT: CASE CONCERNING THE
TEMPLE OF PREAH VIHEAR
(Cambodia v. Thailand)
Case Brief:
The subject of the dispute was
sovereignty over the region of the Temple
of Preah Vihear. This ancient sanctuary,
partially in ruins, stood on a promontory of
the Dangrek range of mountains which
constituted the boundary between
Cambodia and Thailand. The dispute had
its fons et origo in the boundary
settlements made in the period 1904-
1908 between France, then conducting
the foreign relations of Indo-China, and
Siam. The application of the Treaty of 13
February 1904 was, in particular, involved.
That Treaty established the general
character of the frontier the exact
boundary of which was to be delimited by
a Franco-Siamese Mixed
Commission.(emphasis supplied)
The Mixed Commission proceeded
to survey the Dangrek range. The Siamese
Government asked the French to draw up
a map with the delimitations which the
commission came up with after the
survey. This MAP which is the main source
of title by Cambodia, placed the Temple of
Preah Vihear within the Cambodian
territory. It is now being assailed that the
Thai (then Siam) never approved of the
said map. Furthermore, according to
Thailand, the real delineation would
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necessarily include the said temple under
its territory.
The Court however ruled that the
Siam/Thai never questioned the map for
fifty years. Additionally, it derived
continuous benefit from the Treaty by
which the frontiers were demarcated.
Hence, the Temple of Preah Vihear
belongs to the territory of CAMBODIA.
CASE IN POINT: REPARATIONS FOR
INJURIES SUFFERED IN THE SERVICE OF
THE UN (1949 ICJ REPORTS)
Case Brief:
On December 3rd, 1948, the
General Assembly of the United Nations
adopted the following Resolution:
||'Whereas the series of tragic events
which have lately befallen agents of the
United Nations engaged in the
performance of their duties raises, with
greater urgency than ever, the question of
the arrangements to be made by the
United Nations with a view to ensuring to
its agents the fullest measure of
protection in the future and ensuring that
reparation be made for the injuries
suffered; and Whereas it is highly
desirable that the Secretary-General
should be able to act without question as
efficaciously as possible with a view to
obtaining any reparation due; therefore
The General Assembly Decides to submit
the following legal questions to the
International Court of Justice for an
advisory opinion: 'I. In the event of an
agent of the United Nations in the
 Public International Law Midterms Exam Keys 2015
performance of his duties suffering injury
in circumstances involving the
responsibility of a State, has the United
Nations, as an Organization, the capacity
to bring an international claim against the
responsible de jure or de facto
government with a view to obtaining the
reparation due in respect of the damage
caused (a) to the United Nations, (b) to the
victim or to persons entitled through him?
II. In the event of an affirmative reply on
point I (b), how is action by the United
Nations to be reconciled with such rights
as may be possessed by the State of
which the victim is a national?'||
The first question asked of the
Court is as follows: 'In the event of an
agent of the United Nations in the
performance of his duties suffering injury
in circumstances involving the
responsibility of a State, has the United
Nations, as an Organization, the capacity
to bring an international claim against the
responsible de jure or de facto
government with a view to obtaining the
reparation due in respect of the damage
caused (a) to the United Nations, (b) to the
victim or to persons entitled through him?'
(…) Competence to bring an
international claim is, for those
possessing it, the capacity to resort to the
customary methods recognized by
international law for the establishment,
the presentation and the settlement of
claims. Among these methods may be
mentioned protest, request for an enquiry,
negotiation, and request for submission to
an arbitral tribunal or to the Court in so far
as this may be authorized by the Statute.
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This capacity certainly belongs to the
State;
A State can bring an international
claim against another State. Such a claim
takes the form of a claim between two
political entities, equal in law, similar in
form, and both the direct subjects of
international law. It is dealt with by means
of negotiation, and cannot, in the present
state of the law as to international
jurisdiction, be submitted to a tribunal,
except with the consent of the States
concerned. (…)
But, in the international sphere,
has the Organization such a nature as
involves the capacity to bring an
international claim? In order to answer
this question, the Court must first enquire
whether the Charter has given the
Organization such a position that it
possesses, in regard to its Members,
rights which it is entitled to ask them to
respect. In other words, does the
Organization possess international
personality? (…)
The subjects of law in any legal
system are not necessarily identical in
their nature or in the extent of their rights,
and their nature depends upon the needs
of the community. Throughout its history,
the development of international law has
been influenced by the requirements of
international life, and the progressive
increase in the collective activities of
States has already given rise to instances
of action upon the international plane by
certain entities which are not States. This
development culminated in the
establishment in June 1945 of an
 Public International Law Midterms Exam Keys 2015
international organization whose purposes
and principles are specified in the Charter
of the United Nations. But to achieve
these ends the attribution of international
personality is indispensable. (…)
In the opinion of the Court, the
Organization was intended to exercise and
enjoy, and is in fact exercising and
enjoying, functions and rights which can
only be explained on the basis of the
possession of a large measure of
international personality and the capacity
to operate upon an international plane. It
is at present the supreme type of
international organization, and it could not
carry out the intentions of its founders if it
was devoid of international personality. It
must be acknowledged that its Members,
by entrusting certain functions to it, with
the attendant duties and responsibilities,
have clothed it with the competence
required to enable those functions to be
effectively discharged. Accordingly, the
Court has come to the conclusion that the
Organization is an international person.
That is not the same thing as saying that it
is a State, which it certainly is not, or that
its legal personality and rights and duties
are the same as those of a State.
Still less is it the same thing as
saying that it is 'a super-State', whatever
that expression may mean. It does not
even imply that all its rights and duties
must be upon the international plane, any
more than all the rights and duties of a
State must be upon that plane. What it
does mean is that it is a subject of
international law and capable of
possessing international rights and duties,
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and that it has capacity to maintain its
rights by bringing international claims. (…)
Whereas a State possesses the
totality of international rights and duties
recognized by international law, the rights
and duties of an entity such as the
Organization must depend upon its
purposes and functions as specified or
implied in its constituent documents and
developed in practice. The functions of the
Organization are of such a character that
they could not be effectively discharged if
they involved the concurrent action, on the
international plane, of fifty-eight or more
Foreign Offices, and the Court concludes
that the Members have endowed the
Organization with capacity to bring
international claims when necessitated by
the discharge of its functions.
Question I (a) is as follows: 'In the
event of an agent of the United Nations in
the performance of his duties suffering
injury in circumstances involving the
responsibility of a State, has the United
Nations, as an Organization, the capacity
to bring an international claim against the
responsible de jure or de facto
government with a view to obtaining the
reparation due in respect of the damage
caused (a) to the United Nations....?'
The question is concerned solely
with the reparation of damage caused to
the Organization when one of its agents
suffers injury at the same time. It cannot
be doubted that the Organization has the
capacity to bring an international claim
against one of its Members which has
caused injury to it by a breach of its
international obligations towards it. The
 Public International Law Midterms Exam Keys 2015
damage specified in Question I (a) means
exclusively damage caused to the
interests of the Organization itself, to its
administrative machine, to its property
and assets, and to the interests of which it
is the guardian. It is clear that the
Organization has the capacity to bring a
claim for this damage. (…)
When the Organization has
sustained damage resulting from a breach
by a Member of its international
obligations, it is impossible to see how it
can obtain reparation unless it possesses
capacity to bring an international claim.
(…) Question I (b) is as follows:
....'has the United Nations, as an
Organization, the capacity to bring an
international claim .... in respect of the
damage caused .... (b) to the victim or to
persons entitled through him?'
(…) The traditional rule that
diplomatic protection is exercised by the
national State does not involve the giving
of a negative answer to Question I (b). In
the first place, this rule applies to claims
brought by a State. But here we have the
different and new case of a claim that
would be brought by the Organization.
(…) Having regard to its purposes
and functions already referred to, the
Organization may find it necessary, and
has in fact found it necessary, to entrust
its agents with important missions to be
performed in disturbed parts of the world.
Many missions, from their very nature,
involve the agents in unusual dangers to
which ordinary persons are not exposed.
For the same reason, the injuries suffered
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by its agents in these circumstances will
sometimes have occurred in such a
manner that their national State would not
be justified in bringing a claim for
reparation on the ground of diplomatic
protection, or, at any rate, would not feel
disposed to do so. Both to ensure the
efficient and independent performance of
these missions and to afford effective
support to its agents, the Organization
must provide them with adequate
protection.
(…) In order that the agent may
perform his duties satisfactorily, he must
feel that this protection is assured to him
by the Organization, and that he may
count on it. To ensure the independence
of the agent, and, consequently, the
independent action of the Organization
itself, it is essential that in performing his
duties he need not have to rely on any
other protection than that of the
Organization (save of course for the more
direct and immediate protection due from
the State in whose territory he may be). In
particular, he should not have to rely on
the protection of his own State. If he had
to rely on that State, his independence
might well be compromised, contrary to
the principle applied by Article 100 of the
Charter.
And lastly, it is essential that-
whether the agent belongs to a powerful
or to a weak State; to one more affected
or less affected by the complications of
international life; to one in sympathy or
not in sympathy with the mission of the
agent-he should know that in the
performance of his duties he is under the
protection of the Organization. This
 Public International Law Midterms Exam Keys 2015
assurance is even more necessary when
the agent is stateless. Upon examination
of the character of the functions entrusted
to the Organization and of the nature of
the missions of its agents, it becomes
clear that the capacity of the Organization
to exercise a measure of functional
protection of its agents arises by
necessary intendment out of the Charter.
(…) The question remains whether
the Organization has 'the capacity to bring
an international claim against the
responsible de jure or de facto
government with a view to obtaining the
reparation due in respect of the damage
caused (a) to the United Nations, (b) to the
victim or to persons entitled through him'
when the defendant State is not a
member of the Organization. In
considering this aspect of Question I (a)
and (b), it is necessary to keep in mind the
reasons which have led the Court to give
an affirmative answer to it when the
defendant State is a Member of the
Organization. It has now been established
that the Organization has capacity to bring
claims on the international plane, and that
it possesses a right of functional
protection in respect of its agents.
Here again the Court is authorized
to assume that the damage suffered
involves the responsibility of a State, and
it is not called upon to express an opinion
upon the various ways in which that
responsibility might be engaged.
Accordingly the question is whether the
Organization has capacity to bring a claim
against the defendant State to recover
reparation in respect of that damage or
whether, on the contrary, the defendant
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State, not being a member, is justified in
raising the objection that the Organization
lacks the capacity to bring an international
claim.
On this point, the Court's opinion is
that fifty States, representing the vast
majority of the members of the
international community, had the power,
in conformity with international law, to
bring into being an entity possessing
objective international personality, and not
merely personality recognized by them
alone, together with capacity to bring
international claims. Accordingly, the Court
arrives at the conclusion that an
affirmative answer should be given to
Question I (a) and (b) whether or not the
defendant State is a Member of the
United Nations.
Can there be OVERLAPPING of sources of
PIL?
A: Sources of PIL are divided into two:
Primary and Secndary.
According to research, the
secondary means, such as teachings of
highly-qualified publicists or law cases are
treated as mere “subsidiaries”.
Therefore, using several primary
sources at the same time may be allowed,
provided that none of them violate the
other, e.g. a treaty violating an
international customary law. But as to
overlapping of primary and secondary
sources, or using them as basis
simultaneously, authors are of the opinion
 Public International Law Midterms Exam Keys 2015
that it is more of a subsidiary relationship
(supplemental) rather than overlapping.
IS THERE A HIERARCHY IN CONSIDERING
THE SOURCES OF PIL?
A: t is often stated that there is no
hierarchy of sources in international law.
Principles of soft law can thus be as
influential as treaty rules or custom. How
far is this statement an accurate one of
the sources of international law?
A pertinent example is, the General
Assembly resolutions, are not legally
binding on themember states of the
United Nations. The Rio de Janeiro UN
Earth Summit in 1991, the Helsinki Final
Act, also the Universal Declaration of
Human Rights, 1987 Montréal Protocol to
the Ozone Convention these are
considered soft law, which does not
impose upon High Contracting Parties
legal obligation.
Legal scholars argue that soft law
is a contested concept within the
international legal arena, the concept of
soft law does carry sway in some nation-
states for example the German Foreign
Ministry would seem to endorse the notion
of soft law, illustrated by the
Andorno paper on ' The Invaluable Role of
Soft Law in The Development of Universal
Norms in Bioethics'. Though considered a
soft element of Public International Law
(PIL), pursuing a soft legal outcome from
an international summit, may actually be
advantageous. States do not wish to be
bound by commitments they are not able
to fully implement, due to
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domestic political concerns. International
law does have hierarchy of sources with
varying degree of influence.
The statutes of the International
Court of Justice dictate what sources of
PIL the judiciary may refer to when
determining advisory opinion or judgment.
Article 38 paragraph 1 of the statute of
the ICJ says "the court, whose function is
to decide in accordance with international
law such disputes as are cemented to it
shall apply: international conventions,
whether general or particular, establishing
rules expressly recognised by the
contesting States; international custom,
as evidence of a general practice
accepted as law; general principles of law
recognised by civilised nations; subject to
the provisions of article 59, judicial
decisions and the teachings of the most
highly qualified publicists of the various
nations, as subsidiary means for
determination of rules of law."Article 38
originates from Permanent Court of
International Justice therefore is
legitimate to question perceived hierarchy
of sources in aforementioned article
relevant to contemporary society.
CASE IN POINT: NORTH COTABATO v. GRP
PEACE PANEL
ASSOCIATION
Case Brief:
On August 5, 2008, the
Government of the Republic of the
Philippines and the Moro Islamic
Liberation Front (MILF) were scheduled to
 Public International Law Midterms Exam Keys 2015
sign a Memorandum of Agreement of the
Ancestral Domain Aspect of the GRP -
MILF Tripoli Agreement on Peace of 2001
in Kuala Lumpur, Malaysia.
Invoking the right to information on
matters of public concern, the petitioners
seek to compel respondents to disclose
and furnish them the complete and official
copies of the MA-AD and to prohibit the
slated signing of the MOA-AD and the
holding of public consultation thereon.
They also pray that the MOA-AD be
declared unconstitutional. The Court
issued a TRO enjoining the GRP from
signing the same.
On the issue of ASSOCIATION, the
Supreme Court ruled:
The provisions of the MOA indicate,
among other things, that the Parties
aimed to vest in the BJE the status of an
associated state or, at any rate, a status
closely approximating it.
The concept of association is not
recognized under the present
Constitution.
No province, city, or municipality,
not even the ARMM, is recognized under
our laws as having an “associative”
relationship with the national government.
Indeed, the concept implies powers that
go beyond anything ever granted by the
Constitution to any local or regional
government. It also implies the recognition
of the associated entity as a state. The
Constitution, however, does not
contemplate any state in this jurisdiction
other than the Philippine State, much less
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does it provide for a transitory status that
aims to prepare any part of Philippine
territory for independence.
The BJE is a far more powerful
entity than the autonomous region
recognized in the Constitution. It is not
merely an expanded version of the ARMM,
the status of its relationship with the
national government being fundamentally
different from that of the ARMM. Indeed,
BJE is a state in all but name as it meets
the criteria of a state laid down in the
Montevideo Convention, namely, a
permanent population, a defined territory,
a government, and a capacity to enter into
relations with other states.
Even assuming arguendo that the
MOA-AD would not necessarily sever any
portion of Philippine territory, the spirit
animating it – which has betrayed itself by
its use of the concept of association –
runs counter to the national sovereignty
and territorial integrity of the Republic.
The defining concept underlying
the relationship between the national
government and the BJE being itself
contrary to the present Constitution, it is
not surprising that many of the specific
provisions of the MOA-AD on the formation
and powers of the BJE are in conflict with
the Constitution and the laws. The BJE is
more of a state than an autonomous
region. But even assuming that it is
covered by the term “autonomous region”
 Public International Law Midterms Exam Keys 2015
in the constitutional provision just quoted,
the MOA-AD would still be in conflict with
it.
WHAT IS THE EFFECT OF RESERVATIONS
IN MULTILATERAL TREATIES?
A: YES. However under a new principle,
invalid reservations (unfair or violative of
the Consitution of other states or
international customary law) may be
severed.1 In various multilateral
agreements, especially those without a
juridical supervisory organ, states may
incur little cost for submitting accessory
reservations. Under the Vienna
Convention, state R generally suffers only
bilateral costs if another state objects to
its reservation. That is, the effect of state
O’s objection to state R’s reservation is
either (1) that the treaty terms to which
the reservation relates do not apply
between the two states, or (2) that the
treaty as a whole does not enter into force
between the two states.31 Primarily owing
to diplomatic sensitivities, states avoid
choosing the second option, if they are
politically willing to enter an objection at
all. As for the first option, because the rule
of reciprocity produces the exact same
result as the reservation,32 state R loses
nothing if state O selects this alternative.
States consequently have little incentive
to avoid submitting accessory
reservations.
The intermediate states, like all
states, have an incentive to enter both
1
P. 531, R. Goodman, Human Rights Treaties, Invalid
Reservations and State Consent
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essential and accessory reservations
when ratifying multilateral agreements.
Like the other states, they would face
significant transaction costs if forced to
consider reratification after being ejected
from the treaty. A determination whether
to sever an invalid reservation should
therefore try to gauge the overriding goals
of state consent in relation to the
reservation in question
REBUS SIC STANTIBUS
The concept of rebus sic
stantibus (Latin: “things standing thus”)
stipulates that, where there has been a
fundamental change of circumstances, a
party may withdraw from or terminate the
treaty in question. An obvious example
would be one in which a relevant island
has become submerged. A fundamental
change of circumstances, however, is not.
REQUISITES:
1. A fundamental change.
2. The fundamental change must not
have been forseen by the party
invoking the doctrine.
3. The doctrine must have been
invoked within a reasonable time
(case to case basis).
4. It cannot be applied retroactively.
 Public International Law Midterms Exam Keys 2015

STATEHOOD: CONTINUITY AND atl.) because they

SUCCESSION belong to ALL of
mankind and cannot
State Continuity be subjected to the
The legal existence of a state appropriation of a
continues notwithstanding the changes in single state.
population, territory, or the form of Elements of Discovery:
government provided that the four
elements of statehood remain. i. Possession
ii. Administered – once a property is
State Succession discovered and occupied, a
The substitution of one state by government should be established
another, with the latter taking over the therein within a reasonable time.
rights and obligations of the former. 2. CESSION
*as differentiated with Succession of A derivative mode of acquisition by
Government which is the change in the which a territory belonging to one state is
form of government by another which transferred to the sovereignty of another,
takes over it. in accordance with the agreement
between them.

MODES OF ACQUIRING TERRITORY 3. SUB JUGATION AND CONQUEST

1. DISCOVERY AND OCCUPATION A derivative mode of acquisition by

Rules: which the territory of a state, in the course
i. The territory must not of war, is transferred or annexed to the
belong to any state (terra territory of the conquering state.
nullius) 4. ACCRETION
ii. The territory need not be
uninhabited but the Acquisition by natural process such
inhabitants must not as the gradual deposit of soil on the coast
possess a sufficient degree through the action of water or even by
of civilization as tested by human labor.
contemporary standards
(the existence of
government in any form). REMINDER: THIS LIST IS EXCLUSIVE; ANY
iii. There can be no claim or CLAIM BASED ON ACQUISITION BY A
discovery of: MODE NOT INVOLVING ANY OF THESE
 High seas FOUR IS INVALID AND UNTENABLE. 
 Res communes
(moon, sun, stars,

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 Public International Law Midterms Exam Keys 2015
BASES OF THE PHILIPPINE TERRITORIAL
CLAIMS
Sabbah
- Cession; by virture of a gift by
Brunei to the Sultan of Sulu, due to
our aid in quenching the unrest in
Brunei. This was later on
transferred to the sovereignty of
the Philippine Government. Hence,
our claim stands (and it is a valid
mode of acquisition under PIL )
Spratly’s or The Kalayaan Group of Islands
- Discovery & Occupation; the island
is part of Palawan.
INCHOATE TITLE OF DISCOVERY
(Island of Palmas case: Territorial dispute
between the US and Netherlands; Spain
as third party)
- An incomplete or “just began”
mode of discovery.
To illustrate: The Island of Palmas was
allegedly discovered by Spain. Since the
island was part of Palawan, when the
Treaty of Paris came to effect, Spain
“ceded” the Philippines along with the
Palmas to the US. The Court ruled that the
island cannot be part of the cession since
Spain never occupied the island and
hence, it had inchoate title to it.
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LAWS OF THE SEA (Primary Source:
UNCLOS)
Zones of the Sea
i. Internal waters (12 nautical miles
from the baseline)
Breadth: 12 nm
Jurisdiction: ABSOLUTE
ii. Contiguous Zone (12 nm after the
IW or 24 nm from the baseline)
Jurisdiction: LIMITED; by the fact
that control over the area is only to
prevent infringement on customs,
fiscal, immigration, and sanitary
laws.
iii. Exclusive Economic Zone (200 nm
from the CZ)
Jurisdiction: Sovereign rights are
limited to economic resources of
the sea, seabed and subsoil.
iv. Continental Shelf (200 nm from the
EEZ)
v. High seas (after CS)
*The rules of the Zones of the Sea
including the jurisdiction determination is
subject to VOLUNTARY CONSENT.
RIGHT OF INNOCENT PASSAGE
The right of continuous and
expeditious navigation of a foreign ship
through the territorial seas of a state for
the purpose of traversing the sea without
entering its internal waters; Applicable to
all kinds of ships.
DOCTRINE OF HOT PURSUIT
It presupposes that a law was
violated by the foreign ship within the
internal waters/territorial waters/ the
contiguous zone. A pursuit or chase then
 Public International Law Midterms Exam Keys 2015
may be commenced by the coastal or
archipelagic state.
CASE IN POINT: MAGALONA v. EXECUTIVE
SECRETARY
Regime of Islands
The Supreme Court emphasized
that RA 9522, or UNCLOS, itself is not a
means to acquire, or lose, territory. The
treaty and the baseline law has nothing to
do with the acquisition, enlargement, or
diminution of the Philippine territory. What
controls when it comes to acquisition or
loss of territory is the international law
principle on occupation, accretion, cession
and prescription and NOT the execution of
multilateral treaties on the regulations of
sea-use rights or enacting statutes to
comply with the treaty’s terms to delimit
maritime zones and continental shelves.
The law did not decrease the
demarcation of our territory. In fact it
increased it. Under the old law amended
by RA 9522 (RA 3046), we adhered with
the rectangular lines enclosing the
Philippines. The area that it covered was
440,994 square nautical miles (sq. na.
mi.). But under 9522, and with the
inclusion of the exclusive economic zone,
the extent of our maritime are increased
to 586,210 sq. na. mi. (See image below
for comparison)
If any, the baselines law is a notice to the
international community of the scope of
the maritime space and submarine areas
within which States parties exercise treaty-
based rights.
Anent their particular contentions:
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a. The law did not abandon the Sabah
claim. This is evident on the provision of
Section 2 of RA 9522:
Section 2. The definition of the baselines
of the territorial sea of the Philippine
Archipelago as provided in this Act is
without prejudice to the delineation of the
baselines of the territorial sea around the
territory of Sabah, situated in North
Borneo, over which the Republic of the
Philippines has acquired dominion and
sovereignty.
b. UNCLOS may term our waters as
“archipelagic waters” and that we may
term it as our “internal waters”, but the
bottom line is that our country exercises
sovereignty over these waters and
UNCLOS itself recognizes that. However,
due to our observance of international
law, we allow the exercise of others of
their right of innocent passage. No
modern State can validly invoke its
sovereignty to absolutely forbid innocent
passage that is exercised in accordance
with customary international law without
risking retaliatory measures from the
international community.
c. The classification of the KIG (or the
Spratly’s), as well as the Scarborough
Shoal, as a regime of islands did not
diminish our maritime area. Under
UNCLOS and under the baselines law,
since they are regimes of islands, they
generate their own maritime zones – in
short, they are not to be enclosed within
the baselines of the main archipelago
(which is the Philippine Island group). This
 Public International Law Midterms Exam Keys 2015
is because if we do that, then we will be
enclosing a larger area which would
already depart from the provisions of
UNCLOS – that the demarcation should
follow the natural contour of the
archipelago.
Nevertheless, we still continue to
lay claim over the KIG and the
Scarborough Shoal through effective
occupation.
AERIAL DOMAIN: FIVE AIR FREEDOMS
1. Overflight without landing
2. Landing for non-traffic
(commercial) purposes.
3. To put down traffic from state to
airline.
4. To embark traffic destined for the
state of the aircraft.
5. To embark traffic to or from a third
state.
CABOTAGE
Under this principle:
i. International airlines are not
allowed to conduct domestic flights
in the territory of another state.
ii. There can be refusal to permit
international aircrafts to take in
passengers, mail and cargo within
the territory of the host state.
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RECOGNITION
It is the act by which a state
acknowledges the existence of another
state, a government or a belligerent
community, and its willingness to deal
with the state, government or belligerent
as such under the rules of PIL.
NATURE OF RECOGNITION
Declarative Theory
Recognition is deemed
discretionary and political; Recognition
merely affirms an existing fact i.e. that a
state possesses all the four elements of
statehood. It may be granted or withheld
at the pleasure of the recognizing state.
(This is the majority view)
Constitutive Theory
Recognition is compulsory and
legal; Once a state possesses all the
elements of statehood, it is mandatory for
the recognizing state to do so. It is
however said to be violative of Voluntary
Consent. You cannot force another state
to recognize the existence of another.
JUSTIFICATIONS FOR RECOGNITION
1. THE TOBAR OR WILSON DOCTRINE
It precludes recognition of a
government established by
revolution, civil war , coup d’état, or
other forms of internal government
conflict UNTIL the freely elected
representative of the people have
organized a constitutional
government.
 Public International Law Midterms Exam Keys 2015

2. STIMSON DOCTRINE FUNDAMENTAL RIGHTS OF A STATE:

It precludes the recognition of any
government established as a result 1. Sovereignty and Independence (not
of external aggression. absolute)
3. ESTRADA DOCTRINE 2. Property and Jurisdiction
It presupposes that there is a 3. Existence and Self-Dependence
political upheaval in a country. To (MOST IMPORTANT RIGHT)
deal or not to deal with the
government or anyone who has the
control of the state cannot be PRE-EMPTIVE STRIKE
construed as an expressed or
Pre-emptive strikes by individual
implied act of recognition.
nations or groups of nations without the
4. BETANCOURT DOCTRINE
authorization of the Security Council are
It precludes diplomatic recognition
prohibited by the United Nations. In its
to any regime which came to power
preamble, the UN Charter states that the
by military force.
UN was established “to save succeeding
5. KELSEN DOCTRINE
generations from the scourge of war,” and
It states that a state violates PIL
its substantive provisions obligate its
and infringes upon the rights of
members to “settle their international
other states if it recognizes a
disputes by peaceful means” (Article 2[3])
community which does not fulfill
and to “refrain in their international
the requirements of statehood.
relations from the threat or use of force
6. LAUTERPACHT DOCTRINE
against the territorial integrity or political
The recognition of an entity which
independence of any State, or in any
is not legally a state is WRONG. It
manner inconsistent with the purposes of
constitutes an abuse of power of
the United Nations” (Article 2[4]).
recognition by the recognizing
state. Grotius says: a pre-emptive strike is NOT
justified. There must be am actual ground
BELLIGERENCY v. INSURGENCY
to go to war.
1. Insurgency is the INITIAL STAGE of
Elihu Root says: a pre-emptive strike is
belligerency; belligerency is a
JUSTIFIED. A state cannot be expected to
serious and widespread conflict.
wait for the actual attack before it
2. Insurgency is initiated by military
launches its own.
authorities or other organized
armed group; belligerency is by an
organized civil government.

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