PS 114: International Law

Atty. Ida Marie V. Escolano-Canton

New Era University
In case of conflict between IL and
ML, which will prevail?

IL ML
 In case of conflict between IL and
ML, which will prevail?
• Co Kim Chan vs. Valdez
• Ichong vs. Hernandez
• In Re Arturo Efren Garcia
 Assignment
Co Kim Chan vs. Valdez Tan Keh

Gen.
GAPIL MacArthur’s
Proclamation
Co Kim Chan vs. Valdez Tan Keh
• The basic rule would be to attempt to
reconcile the apparent contradiction and
thereby give effect, if possible, to both
systems of law.
• It should be presumed that ML is always
enacted by each state with due regard
for and never in defiance of the generally
accepted principles of internal law.
• Remember: GAPIL is automatically
incorporated in Philippine laws.
 In case of conflict between IL and
ML, which will prevail?
• Co Kim Chan vs. Valdez
• Ichong vs. Hernandez
• In Re Arturo Efren Garcia
 Assignment
 Ichong vs. Hernandez

Retail Trade
Treaty of Amity
Nationalization
PH-CH
Law
 Ichong vs. Hernandez
• Retail Trade Nationalization Law is
upheld as it represented an exercise
by the state of its inherent police
power.
• Police power cannot be bargained
away or surrendered in a treaty
 In case of conflict between IL and
ML, which will prevail?
• Co Kim Chan vs. Valdez
• Ichong vs. Hernandez
• In Re Arturo Efren Garcia
 Assignment
 In Re Arturo Efren Garcia

Treaty of
Academic Art. VIII,
Relations Constitution
PH-SP
 In Re Arturo Efren Garcia
• The Treaty of Academic Relations
cannot prevail over the Constitution
which vests the Supreme Court the
power to admit to the practice of law
in the Philippines.
• This power may not be abrogated by a
treaty
 Assignments
• GAPIL
• United Nations
– History, League of Nations, Never
Again
– Principal Organs
– Big Five
– UN-US Relationship
FUNDAMENTAL RIGHTS OF
A STATE
 Fundamental Rights of a State

• Right of Existence and Self-

Defense
• Right of Independence
• Right of Equality
• Right of Territory/Property
• Right of Jurisdiction
• Right of Legation
Right of Existence and
Self-Defense
 Right of Existence and
Self-Defense
• Regarded as the most important
right of a state
• It is also the most comprehensive,
as all the other rights of the state
flow from it
• The state may take such
measures, including the use of
force, as may be necessary to
counteract any danger to its
existence
Art. II, Sec. 2, 1987 Constitution

The Philippines renounces war as

an instrument of national policy,
adopts the generally accepted
principles of international law as
part of the law of the land and
adheres to the policy of peace,
equality, justice, freedom,
cooperation, and amity with all
nations.
 Limitations
• The right of self-defense may be
resorted to only upon a clear
showing of a grave and actual
danger to the security of the state.
• Any forcible measure taken in the
exercise of this right must be
‘justified’
 Aggression
• The use of armed force by a state
against the sovereignty, territorial
integrity or political independence
of another state or in any other
manner inconsistent with the UN
Charter
 Acts of Aggression
1. The invasion or attack by the
armed forces of a state of the
territory of another state;
2. Bombardment
3. Blockade of the ports/coasts
4. Attack on the land, sea, air
forces
5. The use of armed forces within
the territory of another state
 Intervention
• An act by which a state interferes
with the domestic or foreign
affairs of another state through
the use of force or threat of force
• May be considered as an act of
aggression
• Self-defense is the only accepted
justification for intervention
 Conditions for the proper
exercise of self-defense
• There must be an armed attack
• Self-defensive action taken by the
attacked state must be reported
immediately to the Security Council
• Such action shall not affect the right
of the Security Council to take
actions necessary to maintain or
restore international peace and
security
• REFLECT: US vs. Iraq
 Security Council
• One of the principal organs of the
UN and is charged with the
maintenance of international
peace and security
• POWERS:
– Establishment of peacekeeping
operations
– Establishment of international sanctions
– Authorization of military action
Right of Independence
 Right of Independence
• The right of national self-
government
• The right of a state to direct both
its internal and external affairs
without dictation or interference
from others
• Without independence, a state
cannot be considered a state
 Is sovereignty the same as
independence?
• NO, sovereignty is the broader
term, it refers to the supreme and
uncontrollable power inherent in
the state by which such state is
governed
 Is sovereignty the same as
independence?

Internal/Domestic

Sovereignty

External/Foreign INDEPENDENCE
Is this right absolute? Can a state ‘live its
own life without interference from others?
• NO, independence means only
freedom from control by any other
state, not freedom from restrictions
that are binding upon all states
• Like the liberty of the individual who
must submit to limitations for the
benefit of the community, the
independence of a state must be
restricted by the requirements of the
international society
 A State must...
1. Not employ force or even threat of
force in its relation with other states
2. Not refuse to observe treaties in good
faith
3. Share with other states the peaceful
use of the open seas
4. Maintain the international standards
of justice
5. Observe basic human rights
6. Exempt from its jurisdiction of certain
persons and property
Correlative duty of the right
of independence

Even as it expects its independence

to be respected by other states,
so too must it be prepared to
respect their own independence.
 Drago Doctrine
• In 1902, Britain, Italy and
Germany established a blockade
against Venezuela in order to
enforce certain contractual and
other claims against it.
• Foreign Minister Drago of
Argentina formulated the
doctrine, ‘a public debt cannot
give rise to the right of
intervention’
 Intervention
• An act by which a state interferes
with the domestic or foreign
affairs of another state through
the use of force or threat of force
• May be considered as an act of
aggression
• Self-defense is the only
accepted justification for
intervention
Right of Equality
 Right of Equality
• Every state is entitled to the same
protection and respect as are
available to other states under the
rules of IL
 UN Charter
• UN is based on the principle of
the sovereign equality of all its
Members
• All members of the General
Assembly are given one vote in
the decision of cases or questions
before the GA
 Is this right absolute?
• Big Five (FURUC)
– Non-procedural questions to be decided
with their concurrence
– Can defeat a proposal by way of veto
powers
– Entitled to permanent membership in
Security Council
Right of Territory and
Jurisdiction
 Right of Jurisdiction
• The authority exercised by a state over
the persons and things within or
outside its territory, subject to certain
exceptions.
• Kinds of Jurisdiction:
1. Personal Jurisdiction
2. Territorial Jurisdiction
 Personal Jurisdiction
• Is the power exercisable by a state
over its nationals.
• A national is entitled to the protection
of his state wherever he may be and is
therefore bound to it by a duty of
allegiance, which follows him
wherever he may go.
 Laws asserting Personal
Jurisdiction
• Art. 15, Civil Code
• Art. 2, Revised Penal Code
• National Internal Revenue Code
 Territorial Jurisdiction

• The authority exercised by a state over

persons and properties within its
boundaries, over terrestrial, maritime,
fluvial and aerial domain.
• No act or process can take effect
within the domain without consent of
the territorial sovereign.
• The authority of a state is co-extensive
with its territory.
 Modes of acquiring territory
• Discovery and occupation
• Cession
• Conquest and Subjugation
• Prescription
• Accretion

• Res nullius vs. res communes

 National Territory of the
Philippines
Art. I of the 1987 Constitution
The national territory comprises the
Philippine archipelago, with all the islands and
waters embraced therein, and all other territories
over which the Philippines has sovereignty or
jurisdiction, consisting of its terrestrial, fluvial
and aerial domains, including its territorial sea,
the seabed, the subsoil, the insular shelves, and
other submarine areas. The waters around,
between, and connecting the islands of the
archipelago, regardless of their breadth and
dimensions, form part of the internal waters of
the Philippines.
 Methods in defining
territorial seas
• Normal baseline method – drawn from
the low-water mark on the coast
following its sinuosities and curvatures.
• Straight baseline method – drawn from
the low-water mark using straight line.
• NOTE: Everything inside the baseline is
part of the internal waters, everything
outside and 12 nautical miles outward is
territorial seas.
 Archipelagic Doctrine
 Definition of internal waters
 All islands of the Philippines should be
considered one integrated whole instead
of being fragmented into separate units
each with its own territorial seas.
Otherwise, the waters outside each of
these territorial seas will be regarded as
high seas and thus be open to all foreign
vessels.
 United Nations Convention of the Law of
the Sea (UNCLOS)
United Nations Convention of
the Law of the Sea (UNCLOS)
 Is the international agreement that
resulted from the third United Nations
Conference on the Law of the Sea
(UNCLOS III), which took place between
1973 and 1982. The Law of the Sea
Convention defines the rights and
responsibilities of nations with respect
to their use of the world's oceans,
establishing guidelines for businesses,
the environment, and the management
of marine natural resources.
United Nations Convention of
the Law of the Sea (UNCLOS)
 The convention has been ratified by 168
parties, which includes 167 states
 setting limits, navigation, archipelagic
status and transit regimes, exclusive
economic zones (EEZs), continental shelf
jurisdiction, deep seabed mining, the
exploitation regime, protection of the
marine environment, scientific research,
and settlement of disputes.
 The convention set the limit of various
areas, measured from a carefully
defined baseline.
How significant is UNCLOS?
 Archipelagic doctrine
 Used as standard and reference in the
South China Sea Arbitral Ruling
 Waters
1. Internal Waters – coastal state free to set
laws, regulate use and use of any resource.
NO right of passage.
2. Territorial Waters – 12 nautical miles from
baseline. Coastal state free to set laws,
regulate use and use of any resource. Right
of innocent passage
3. Contiguous zone – 12 nautical miles from
territorial waters or 24 nautical miles from
baseline. A state continue to enforce laws in
four specific areas: pollution, taxation,
customs and immigration
 Waters
4. Exclusive Economic Zone– 200
nautical miles from baseline. The
coastal nation has sole exploitation
rights over all natural resources, and
extend even to the continental
shelf. seabed, subsoil, submarine
areas
 Jurisdiction over foreign
vessels
• Foreign public vessels  the local
state exercises neither civil/criminal
jurisdiction
• Foreign private or merchant vessels 
full civil jurisdiction. As to criminal
jurisdiction, Philippines use the
English rule. (People vs. Wong Cheng)
 Jurisdiction over foreign
vessels
• English rule – the local state assumes
jurisdiction over all offenses committed
on board foreign vessels within its ports,
except petty crimes or affecting discipline
of the ship
• French rule – the flag state has
jurisdiction over all offenses committed
on board its merchant vessels unless
such crimes are of grave nature.
 Aerial Domain
• The airspace above the territorial
domain and the maritime and fluvial
domain of the state, to the limits of
the atmosphere.
• This does not include outer space 
res communes
 Aerial Domain
• GR: No foreign aircraft, civil or
military aircraft may pass through
the aerial domain of a state without
its consent.
• EXC: Five air freedoms
Limitations on the exercise of
jurisdiction
State does not exercise jurisdiction
over:
1. Foreign states, head of states,
diplomatic representatives, consuls
2. Foreign state property, embassies,
consulates, public vessels
 based on the principle of
exterritoriality – considered as an
extension of the state represented
Limitations on the exercise of
jurisdiction
3. Acts of state
– Every sovereign state is bound to respect
the independence of every other sovereign
state, and the courts of one country will
not sit in judgment on the acts of the
government of another, done within its
territory. (Underhill vs Hernandez)
4. Foreign merchant vessels exercising
the right of innocent passage or arrival
under stress
Right of Legation
 Right of Legation
• The right of a state to maintain
diplomatic relations with other states
• The exercise of the right of legation is
one of the most effective ways of
facilitating and promoting intercourse
among states
 Right of Legation
• States are then able to deal more
directly and closely with each other in
the improvement of their mutual
interests
• Purely consensual, the maintenance
of diplomatic relations is not a
demandable right on the part of either
the sending or the receiving state
 Kinds

Right to SEND
ACTIVE diplomatic
representatives
Right of Legation
Right to RECEIVE
PASSIVE diplomatic
representatives
 Agents of Diplomatic
Intercourse
1. The Head of State
– Regarded as the embodiment of or at
least represents the sovereignty of his
state
2. Foreign Secretary or Minister
– The head of the foreign office and has
direction of all ambassadors and other
diplomatic representatives of his
government
 Agents of Diplomatic
Intercourse
3. Members of the Diplomatic Service
– To whom the regular or day-to-day
conduct of international affairs is
entrusted
4. Special Diplomatic Agents/Envoys
– Envoys Ceremonial
– Envoys Political
 How is a diplomatic
representative chosen?
• Appointment of diplomate is not
merely a matter of municipal law for
the receiving state is not obliged to
accept a representative who is
persona non grata to it
• Agreation –sending inquiry as to
proposed diplomatic representative
• Agrement – manifestation of consent,
formal accreditation of diplomatic
representative
Usual documents carried by a
diplomatic representative
1. Letter of credence or lettre de creance
• Diplomatic mission commences once
presented
2. Diplomatic passport
3. Official Instruction
4. Cipher or code book
 Functions of a diplomatic
representative
• Representing the sending state in
the receiving state
• Protecting in the receiving state the
interests of the sending state and its
nationals
• Negotiating with the government of
the receiving state
 Functions of a diplomatic
representative
• Ascertaining by all lawful means
conditions and developments in the
receiving state and reporting thereon
to the government of the sending
state
• Promoting friendly relations between
the sending and receiving states and
developing their economic, cultural
and scientific relations
• May also perform consular functions
in the absence of a consular mission
 Conduct of Diplomatic
Mission
• In the performance of his functions,
the diplomatic agent must exercise
the utmost discretion and tact,
taking care always to preserve the
goodwill of the sending state and to
avoid interference with its internal
affairs
 Diplomatic Immunities and
Privileges
1. Personal Inviolability
2. Immunity from Jurisdiction
3. Inviolability of Diplomatic Premises
4. Inviolability of Archives
5. Inviolability of Communication
6. Exemption from Testimonial Duties
7. Exemption from Taxation
8. Other Privileges
 1. Personal Inviolability
• Entitled to special protection of his
person, honor and liberty
• He shall not be liable to any form of
arrest or detention
 2. Immunity from
Jurisdiction
• From criminal, civil, and administrative
jurisdiction
• Can escape the rigor of local laws even if
he commits the most serious of offenses in
the receiving state. He may not be
punished but it can and usually will ask
for his recall
• Immunity may be waived, i.e., expressly by
the sending state, the civil action deals
with property held in private or proprietary
capacity, he himself is the
plaintiff/complainant
 3. Inviolability of Diplomatic
Premises
• The agents of the receiving state may not
enter them, without the consent of the
head of mission
• Includes offices, residence, means of
transportation, and compound
• Immune from search, requisition,
attachment or execution
 3. Inviolability of Diplomatic
Premises
NOTE: The right of diplomatic asylum has not
received universal recognition, except when it
is extended for humanitarian reason (i.e.,
immediate danger of life or safety); granted
only on the strength of local usage, political
refugees, or of treaty stipulations
4. Inviolability of Archives
• The receiving state has no right to pry into
the official papers and records of a foreign
diplomatic mission
 Diplomatic Immunities and
Privileges
5. Inviolability of Communication
– Right to free communication is essential
to the proper discharge of his functions
6. Exemption from Testimonial Duties
– Not obliged to give evidence as a
witness, unless authorized by his govt
7. Exemption from Taxation
– Exc. Indirect taxes
8. Other Privileges
– Freedom of movement and travel, use of
flag and emblem
 Accredited Officials of a
Foreign Government
Three types:
1. E-1 includes head of states, members of a
royal family, cabinet ministers, presiding
officers of national legislative bodies,
supreme court justices, diplomats, military
and career attaches, wives and unmarried
children
2. E-2 includes an officer of a foreign
government recognized by the Philippines,
members of the staff of an embassy or
consulate, etc.
3. E-3 refers to the members of the household
of persons whom the E-1 AND E-2 visas
have been granted.
 Termination of Diplomatic
Mission
UNDER MUNICIPAL LAW UNDER INTERNATIONAL
LAW
Death Recall/Persona non grata
Resignation Outbreak of war
Removal -allowed to depart ASAP,
without necessary
Accomplishment of
molestation
Purpose
Abolition of office Extinction of either state
Change of government by
violence
 Termination of Diplomatic
Mission
• Privileges and immunities normally
cease from the moment he leaves the
country or on expiry of a reasonable
time in which to do so.
• However, with respect to acts
performed by him in the exercise of
his official functions, immunity shall
continue indefinitely, as it is
supposed to have attached not to
him personally, but to the state he
was representing.
 Consular Mission
• Are not diplomatic representatives
but only commercial agents of the
sending state
• Consuls are state agents residing
abroad for various purposes but
mainly in the interest of commerce
and navigation
 Duties of Consuls
• Protection of the interests of the
sending state and its nationals in the
receiving state
• Promotion of the commercial,
economic, cultural and scientific
relations of the sending and
receiving state
 Duties of Consuls
• Observation of conditions and
developments in the receiving state and
report thereof to the sending state
• Issuance of passports and other travel
documents to nationals of the sending
state and visas or appropriate
documents to persons wishing to travel
to the sending state
• Supervision and inspection of vessels
and aircraft of the sending state
 Diplomatic vs Consular
Mission
Diplomatic Mission Consular Mission
Ambassador Consul General
Envoy, Minister Vice-Consul
Diplomatic Agent Consular Agent
Diplomatic representatives of the Commercial Agents of the sending
sending state state
Protects and maintains good state Protects the interests of nationals
relationship living in receiving state
Agreation Letter Patent/ Lettre de provision
Agrement Exequator
Enjoys full diplomatic immunities Has immunities and privileges,
and privileges HOWEVER, they are liable to
arrest and punishment for grave
offenses and may be required to
give testimony