Paper in Pil 2009

INTERNATIONAL LAW
REVIEWER
By
I sagani A. Cruz
Associate Justice
Supreme Court o f the Philippines
(Retired October 11, 1994)
. 1996 Edition.
4 ’I
Published by
CENTRAL LAWBOOK PUBLISHING CO., INC.

927 Quezon Avenue, Quezon City
Philippines :-/f
V a M B .n w S X T M
1
FOREWORD
TH IS R E V IE W E R is prim arily intended as a guide, and m erely

as a guide, in the study o f international law in the Law course.
A s only tw o hours a w eek are officially allotted to the subject,
this w ork is lim ited to fundam ental principles, leaving to the
professor the task o f elaboration.
A n oth er purpose o f this book is to help the bar reviewee
pressed for tim e to renew his understanding of International
Law and W orld Organizations. The indispensable presumption
is that he learned the su bject in the basic course; otherwise, he
is advised to consult a more detailed work.
A third function may be added, and it is to teach the stu
dent, particularly the bar candidate, to answer questions pro
perly. The answers must, o f course, be correct, to begin with;
but they m ust also be brief, categorical and responsive. It is
hoped that this quizzer will im prove his technique in this
regard.
A ls o w orth m entioning is the fact that the answers in this
w ork are generally couched in original language and not taken
verbatim from other books. In other words, this is not a
patchw ork. A cknow ledgm en ts are only of ideas except when,
infrequently, excerpts are directly quoted or parts of laws
reproduced.
Finally, certain questions are stressed with an asterisk, to
indicate that they have been asked in the bar tests or are
relatively im portant. For practical reasons, the student is ad
vised to give them m ore attention in preparing for the ex
am inations.
I sag an i A. Cruz
CONTENTS
Page
FOREWORD
Chapter I T he N ature OF I nternational

L aw ............................................... 1
Chapter 11 T he Relation of I nternational
Law and M unicipal La w ___ 7
Chapter III T he INTERNATIONAL COMMUNITY . 11
Chapter IV THE UNITED NATIONS.................. 20
Chapter V T he CONCEPT OF THE STATE............ 36
Chapter VI Re c o g n it io n .................................. 41
Chapter VII T he R ight of E xistence and Self -
D efense .................................... 49
Chapter VIII T he Right OF INDEPENDENCE____ 54
Chapter IX T he R ight OF E q u a l it y ............. 58
Chapter X T he R ight of Te r r it o r y ........... 61
Chapter X I T he RIGHT OF JURISDICTION .......... 72
Chapter X II T he R ight of Legation ................. 81
Chapter X III T reaties ............................................. 92
Chapter X IV N ationality and Statelessness 102
Chapter X V T reatment of A l i e n s ............... 109
Chapter X V I SETTLEMENT OF INTERNATIONAL
D i s p u t e s .................................... 119
Chapter X V II W ar ............................................... 131
Chapter X V III N e u t r a l it y ................................... 146
References ...................................... 159
VII
TABLE OK CONTENTS
Page
APPENDIX ................................................................................160
A. Charter of the United Nations ................... 160
B. Amendments to the Charter of the United

N ations............................................................ 197
C. Statute of the International Court

of J u s t ic e ....................................................... 200
D. Treaty on Principles Governing the A c
tivities of States in the Exploration and
Use of Outer Space, Including the
Moon and Other Celestial B o d ie s .............. 220
vm
Chapter 1
T11K NATURE OF IN TERN ATIO NAL L A W
1. W hut is international law? *
International law is that branch of public law which

regulates the relations of states and o f other entities which
have been granted an international personality. (H ackw orth, 1;
Schwarzenberger, 1).
The term “ international law,” which was introduced by
Jerem y Bentham in 1870, is used interchageably with “law o f
nations,” an earlier appellation of the subject.
2. W h at are the main divisions o f international law? *
International law is divided into: - •■>
(i) The laws o f peace;

(2) The laws of war; and
i
(3) The laws of neutrality. 1
3. W h at are the sources of international law? * v
A s suggested in Article 38 of the Statute of the Interna

tional Court o f Justice, the sources are either primary or sub-'
sidiary.
The primary sources are: .
(1) I nternational treaties and conventions;
(2) International customs; and
(3) General principles of law.
The subsidiary sources are:
(1) D ecisions of courts; and
(2) Teachings of publicists.
4. Is every treaty or convention, a source of international

law? Explain and illustrate.
No. It will be so only if it is concluded by a 'sizable

•J IN It-'liN I'lONAL LAW KliV IEWER
€ '
■Ai
numbor of states for the purpose of confirm ing, estab lish in g or

abolishing a rule of international law.
Kxamples are the Hague C onventions o f 1899 and 1907
which adopted many existing rules o f cu stom a ry law, the
Cenocide Convention of 1948 which defined and punishes a /
new international offense, and the D eclaration o f P aris o f 1856
which discontinued the practice of privateering. v
5. May bilateral treaties be considered a prim ary sou rce

of international law? ■■
Yes, if they are of the same/nature, contain practically ;

uniform provisions and are concluded by a su fficien t num ber o f J
slates, although separately. . ■ v 4*
Kxamples are extradition treaties which, w hile only ^
bilateral, are notable for their grow ing num ber and the :
similarity of their stipulations.
6. What is an international custom , and how does it d if

fer from mere usage? Illustrate.
An international custom is a long-established w ay o f do

ing things by states under the conviction that it is ob liga tory
and right. Usage does not carry this conviction.
An example of an international custom is the d octrin e of
state immunity. Usage may be illustrated b y the use o f French
and, later, of English as the language o f diplom acy.
7. What are the defects of custom as a prim ary sou rce o f

international law?
One defect is the difficulty of determ ining w hen a practice

has hardened into a custom and thus acquired obligatory
character.
Another is the difficulty of some custom s, ow in g to then-
slow process of evolution, to adjust to the sw ift developm ents
of the international society they are supposed to govern.
TW N A TC H K O F IN T E R N A T IO N A L LAW
8. What are the general principles of law? Give ex

amples.
These are rules which, because of their intrinsic merit,

have been accepted and are being observed by the m ajority of
civilized states.
Examples are prescription, estoppel, res judicata, and
pacta sunt servanda,
9. Is the principle of stare decisis observed in the

International Court of Justice?
No, because Article 59 of the Statute provides that deci

sions of the Court shall be binding only between the parties
and in respect of their particular case.
Nevertheless, decisions of international and even of national
tribunals may have a strong persuasive influence in the resolu
tion of international litigations.
10. When may the teachings of publicists be accepted as

subsidiary sources of international law?
Such teachings may be so considered if the publicists are

highly qualified and generally acknowledged and their views
are a correct and unbiased representation or interpretation of
international law. (The Paquete Habana, 175 US 677).
11. W hat is the basis of international law? In other

words, what gives it binding force? *
There are three theories on this matter.

The Law of Nature School believes that international law
is based on those rules of conduct discoverable by every in
dividual in his own conscience and through the application of
right reason. A s he is bound to-observe these rules without
need of a formal or external prescription, so too is the state,
which is composed of individuals.
The Positivist School holds that international law is
based on the consent of states, and on such consent only. This
I l ul l III. \IIH M.\ ,%V\ III V H. WI d l
, iMi'.tMii I >« \f n i »i «/ hi 111«•<(i.ft i»l i *iii *'«'i11 i<mu I law, ifnftlloti, in

l l\c i ii .r ill i u >(Hiitiu \ hi** mill fu r itunoil in I he case of the
genci i»l (»i im i|i!t"i »il In'v
Tin1 K* li t I !♦ Hi <ii hI inn ii lmnl i*'|Mneonts a compromise
bet w4•«*11 l lit* Iti I wu hi InM»lh mI l Imnghl mid sidmiits that in-
teiuuliouul law Im I»iiktiit|/ put 11y because il, is good and right
aiul pai 11\ Imu an.i ( hi a! i h Iimvn agi,<<Ml to lie bound by it.
I II.' (Im«I i lumt y h|i(nuiih in Im* the most widely accepted,
(/ r/IM 11 . »/ , o')
\ 2. Ih "piivnle ln(rimilIommI lawH part of international

law?
St i a lly spent lug, im " P riv a te international law " or

“ i cmlla I nl la w s" is n pm t ol m un icip al or private law because
it deals wit h I he del im mi nation o f whether in a factual situa
tio n in v o lv in g a loM ign element the law o f another state shall
la* applied Ksseni.ially, it ingiihites the relations of individuals
n tit 1 not m l el atari in (or tw, {(loud rich, I)
l!l. W hat In International com ity? D istinguish from in

ternal hmiil H hire ami Internattonnl dip lom a cy,*
All tin<u* mid to the dealings of states with one another.

Comity emphasizes the rules ol politeness, ethics stresses con
siders! ions ol justi* e and morality, and diplomacy is based on
expediency and sell interest.
M. What Is international administrative law?
It is the body ol rules lonmdstud by states, usually in in

ternational conventions, ha the purpose of regulating their
relations and activities In connection with such non-political
matters as International commimicntion, patents and
copyrights, promotion ol health, education, and crime preven
tion.
lb. Would yon say that Internetional law is true law?

W by? H
THE NATUK K OF INTKKN ATION AL LAW
By conventional criteria, international law may not

qualify as true law because it is not prom ulgated by a superior
authority and no penalties are form ally prescribed for its viola
tion.
H owever, it cannot be denied that there are laws which
have becom e valid rules of conduct by mere agreement or ac
ceptance by the m em bers o f the com m unity and are observed
because of their intrinsic merit and notw ithstanding the
absence of specific penalties for their violation.
In the latter sense, international law may be regarded as
true law.
16. If international law is true law, what then are its

sanctions? * t -' f
The sanctions, or the factors that influence observance of

international law, are as follows:
(1) Belief in the inherent wisdom of the law.
(2) H abits o f obedience.
(3) Fear o f reprisals or punishment.
(4) R espect for world opinion.
(5) The United Nations. (Laurel, 5).
17. W h at are the functions o f international law? *

//
The principal functions are: ~f
(1 ) - T o prom ote international peace and security;
(2) T o foster friendly relations am ong nations and to
discourage the use o f force in the solution of differences am ong
them;
(3) T o provide for the orderly regulation of the conduct
o f states in their mutual dealings; and
(4) T o insure international cooperation in the pursuit of
certain com m on purposes of an economic, social, cultural or
humanitarian character. (U.N. Charter, A rt. 1).
18. W h at is the present state o f international law?
A s always, international law is in a state of flux. The

Charter of the United Nations and advances in modern science,
IN T E R N A T IO N A L L A W R E V IE W E R
particularly in the development of weapons, have made signifi

cant changes in the traditional concepts of international law.
For example, the individual' is now regarded in a growing
number of cases as a subject rather than a mere object of inter
national law. Many rules on the waging of war have become o b -,
solete, and in fact war itself has been outlawed. The old idea of
neutrality has yielded to new trends in international politics
and to specific provisions in the United Nations Charter. Space
exploration has also broadened the horizons of man and, cor
respondingly, the scope of the law of nations.
19. What is the International Law Commission?
It is a body created by the General Assembly in 1947 for

the “ promotion of the progressive development of interna
tional law and its codification,” composed of twenty-five *0
members, of recognized competence in international law;
elected by the General Assembly for a term of three years and
eligible for re-election. Among the works of the International
Law Commission are drafts on the Rights and Duties of States
and the Law of Treaties.
Chapter II
r e l a t io no f INTERNATION AL
AN D M U N ICIPAL LAW
(5- 20. How does international law diffe-

law?*
From the viewpoint of the monisis, there can be no differ-

ence because international law and municipal law are one and
the same law. To the dualists, however, who represent the more
widely accepted view, the two laws are distinct and separate
and may be distinguished as follows:
(1) International law is a law of coordination, being the
result of agreement among the equal states forming the family
of nations; municipal law is a law of jmbordination, being a
command issued by a political superior to those subject to its
authority.
(2) International law Regulates the relations of states
and other international persons; municipal law regulates the''
relations of individuals among themselves or with their state.
(3) International law is 4 erivec* principally from
treaties, international customs, and general principles of law;
municipal law consists mainly of statutory enactments, and to
a lesser extent executive orders and judicial pronouncements. ^
(4) International law is enforced, generally speaking, by
the subject themselves through methods of sglf-help;
municipal law is enforced by a regular and pre-existing
machinery for the administration of justice,
(5) International law usually êntails collective respon
sibility; municipal law entails individual responsibility.
21. Is international law part of municipal law?
As a member of the international community, a state is

bound to observe the generally .accepted principles of interna
tional law. In this, sense, international law should be deemed a
part of the municipal law of each state. ,
s I NTERNAT I ONAL LAW R E V I E WE R
22. What is the d octrin e o f in co r p o r a tio n ? How

does it d iffer from the d octrin e o f tra n sform a tion ?
The doctrine of incorporation postulates that the generally

accepted principles of international law are automatically incor
porated in the municipal law of each state upon its admission to
the family of nations.
The doctrine of transformation, on the other hand, re
quires such principles of international law to be enacted as
statutes or otherwise converted into municipal law before they
can be considered binding on the state.
23. Which doctrine is observed in this jurisdiction?
We observe the doctrine of incorporation as expressed in

Article II, Section 2, of our Constitution, which provides: “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 na
tions.”
In a significant number of cases, our Supreme Court has
applied the generally accepted principles of international law
notwithstanding that they had not been previously
transformed into statutory or municipal law. An example is
Peralta v. Director of Prisons, 7,5 Phil. 287, on the powers of
the belligerent occupant.
24. Is the declaration in Article II, Section 2, o f our

Constitution really necessary?
Not really, because, as previously stated, the mere fact of

membership in the family of nations imposes upon us the
obligation to observe its rules, whether or not we expressly af
firm our intention to do so.
The declaration is at best an assurance to the rest of the
world of our willingness and readiness to abide by the general
ly accepted principles of international law as a responsible
member of the international community.
RELATION OK INTERNATIONAL LAW AND MUNICIPAL LAW 9
It cannot be regarded as a mere choice of options in the

sense that its non-inclusion in our Constitution would signify
that we are not bound by the law of nations. . y
25. What are the other provisions of our Constitu

tion dealing with international law?
Am ong such provisions are the following:

(1) Article I, Section 1, on the national territory.
(2) Article II, Section 2, on the renunciation of war and
the incorporation clause.
(3) Article II, Section 4, on the defense of the state.
(4) Article II, Section 7, on foreign relations.
(5) Article IV, on citizenship.
(6) Article VI, Section 23(1), on the declaration of the
existence of a state of war.
(7) Article VII, Section 20, on foreign loans.
(8) Article VII, Section 21, on concurrence to treaties.
(9) Article VIII, Section 4(2), on the annulment of trea
ties.
(10) Article VIII, Section 5(1), on jurisdiction over am
bassadors, other public ministers and consuls.
(11) Article VIII, Section 5(2), on jurisdiction over cases
involving the constitutionality of treaties.
(12) Article XVIII, Section 4, on unratified treaties.
(13) Article XVIII, Section 25, on the RP-US bases agree
ment.
26. In case of conflict between international law

and municipal law, which ought to prevail?
From the viewpoint of international tribunals, the deci

sion should always incline in favor of international law.
From the viewpoint of municipal tribunals, the decision is
usually determined by considerations of self-interest. If the
municipal law will favor the state, it is applied, otherwise, in
ternational law is upheld.
10 INTERNATIONAL LAW RLVJ hW' LR
27. The Retail Trade Nationalization Law was assailed

on the ground, among others, that it violated the Treaty of
Amity between the Philippines and China, the United Nations^
Charter, and the Universal Declaration of Human Rights in
sofar as it prohibited aliens, including Chinese, from engaging
in the retail trade in the Philippines. How was this contention
resolved by the Supreme Court?
The Supreme Court held that there was no violation of the

aforementioned documents. Nevertheless, even assuming that
there was, the statute should still be upheld as it represented
an exercise by the state of its inherent police power, which can
not be bargained away or surrendered in a treaty. (Ichong v.
Hernandez, 101 Phil 115 [1957]).
28. G petitioned the Supreme Court for permission to

practice law in the Philippines without passing the required
bar examinations. He claimed that he was exempted from such
requirement under the Treaty on Academic Relations between
the Philippines and Spain because he had previously been ad
mitted to the practice of law in Spain. Was the permission
granted? Why?
The petition was denied. The Supreme Court held that the
treaty did not provide that admission to the practice of law in
Spain would entitle the petitioner to practice law in the Philip
pines. Moreover, even if it did, the treaty could not prevail as
against Article VIII, Section 13, (now Article VIII, Section 5(5))
of the Constitution which vests in the Supreme Court the power
to admit to the practice of law in the Philippines. This power
may not be abrogated by a treaty. ( In re Arturo Efren Garcia,
2SC R A 984 [1961]).
Chapter III
TH E IN T E R N A T IO N A L C O M M U N IT Y
29. W hat is the international com m unity? i* h 1 •
The international com m unity may be described as the

body of juridical entities which are governed by international
law. It is often and traditionally called the family of nations.
However, it is not really com posed only of nations, or of states,
as there are other entities besides states which are now con
sidered subjects of international law.
30. W hat is a subject of international law? H ow does it

differ from a mere object? *
A subject of international law is an entity that has rights

and responsibilities under that law. It has an international per
sonality in that it can .directly assert fights and be held direct
ly responsible under the law of nations. In other words, it has
the faculty o f motivation. B y this is meant that it can be a pro
per party in transactions involving the application of the law
of nations am ong members of the international community.
By contrast, an object of international law is the person or
thing in respect of which rights are held and obligations j.
assumed by the subject. It is, therefore, not directly governed 5
by the rules of international law. Its rights are asserted and its ^
responsibilities im posed indirectly, through the in- c J*
strumentality of an intermediate agency, which is the subject.
31. Enumerate the subjects of international law. *

S€JM $ni
The generally recognized subjects of international law are
states, both independent and dependent, the United Nations, k
colonies and dependencies, mandates and trust territories, the
Vatican City, belligerent communities, certain international
administrative bodies, and even individuals in some cases.
11
12 INTERNATIONAL LAW REVIEWER
32. W h at is a state? H ow are states classified as sub

je cts o f international law? *
A state is a group of people, more or less numerous, per

m anently living in a definite territory, under an independent
governm ent organized for political ends and capable o f enter
ing into legal relations with other states.
States are either independent or dependent.
It is true that all states are supposed to possess
sovereignty as one of its essential elements. Nevertheless, in
ternational law recognizes the anomaly o f certain states enjoy
ing less than full sovereignty, which has made the distinction
between independent and dependent states necessary. .
33. W hat is an independent state? H ow are independent

states classified?
A n independent state is one that has full freedom in the

direction of its affairs, both domestic and foreign.
A n independent state may be either simple or composite.
34. W hat is a simple state? Give examples.
A simple state is one where the direction o f domestic and

foreign affairs is placed in a central authority. A n example is
the Philippines. —
35. W hat is a composite state? Give the kinds of com

posite states.
A composite state consists of two or more states, each

with its own separate government but bound under one
central authority exercising to a greater or less extent con
trol over their external relations and thus forming a separate
international person.
The real union and the federation are composite states
with full international personality, as distinguished from the
confederation, which is an imperfect international person.
rUK lN I'KKN ATIONAL COMMUNITY"
36. W hat is a real union? *
A roal union is created when two or more states are

merged under a central authority through which they act in
the direction of their external affairs. The states forming this
union do not lose their status as such but their respective intor-
national personalities are extinguished and blended in the new
international person which, however, is not considered a state.
Such a union existed between Norway and Sweden from 1815
to 1905 and between Austria and Hungary from 1867 to 1918.
tBishop , ISO).
37. W hat is a federal union? *
A federal union, or federation, is a combination of two or

more states which, upon merger, cease to be states, resulting
in the creation of a new state with full international personali
ty to represent them in external relations and a certain degree
of power over their domestic affairs and their inhabitants. An
example is the United States. (Bishop, 180).
38. W h at is a confederation? *
A confederation is an organization of states which retain

their internal sovereignty and, to some extent, their external
sovereignty, while delegating to the collective body power to
represent them as a whole for certain limited and specified pur
poses, such as common defense. To the extent that the con
federation itself, and each of the individual member states, are
able to maintain separate international relations, they are all
regarded as so many international persons, albeit not full but
only imperfect. The German states were joined in a confedera
tion in 1866 until they eventually developed into a more
closely-knit federation. (Bishop, 180).
39. W h a t is a personal union? *
A personal union comes into being when two or more

states are brought together under the same monarch, who
nevertheless does not constitute one international person for | ft

the purpose of representing all of them. A s in the case of ||f;
Belgium and the former Congo Free State from 1885 to 1905, ||f^
each member remains a state and an international person,
although its external policies are dictated by the same
monarch who also directs the foreign affairs o f the other fg ,
members of the union. (Bishop, 180). , 8|||
40. What is an incorporate union?
It is a union of two or more states under a central authori

ty empowered to direct both their internal and external affairs
and possessed of a separate international personality. It dif
fers from a real union in that only external affairs are placed
under the control of the latter. An example of an incorporate
union is the United Kingdom of Great Britain and Northern
Ireland. (Paras, 33).
41. What is a dependent state? Discuss the kinds of

dependent states.
A dependent state is an entity which, although &

theoretically considered a state, does not have full freedom in t
the direction of its external affairs. A dependent state may be
either a protectorate or a suzerainty.
Some writers suggest that the protectorate always re
tains a measure of control over its external affairs whereas a
suzerainty may or may not have this power. The real dif
ference, however, is that a protectorate is established at the re
quest of the weaker state for the protection o f a strong power
whereas a suzerainty is the result of a concession from a state
to a former colony which is allowed to become independent
subject to the retention by the former sovereign of certain
powers over the external affairs of the latter. (Fenwick, 117).
42. In what ways does the United Nations enjoy the

status of an international person? *
- (1) Like states, although not to the same extent, it en

joy s certain privileges and immunities such as non-suability, s
I V.
THE INTERNATIONAL COMMUNITY 15 a
inviolability of its premises and archives, and exemption from

taxation. (U.N. Charter, A r t 105; General Convention on the
Immunities and Privileges o f the United Nations).
(2) It has the right of legation and its diplomatic agents
generally possess the same privileges accorded regular envoys, i
(Id)
(3) It can assert diplomatic claims for damages on
behalf of its officials in the same way that a state can intercede
for its nationals. (Case o f Count Folke Bernadotte, I.C.J:
Reports 1949, p. 174).
(4) It can enter into treaties through the General
Assembly, the Security Council, and the Economic and Social
Council. (U.N. Charter, Arts. 43, 63, 83, 85).
(5) It can wage war, in a sense, through the exercise of
its power to take enforcement action in case of actual breach of
or threat to the peace of the world. (Id, Art. 42).
43. D o colonies and dependencies have a legal standing

in the international community?
From the viewpoint of international law, a colony or a

dependency is part and parcel of the parent state, through >.W.
which all its external relations are transacted with other
. , . , , . J. . , . '■ -'f■
states. A s such, therefore, it has no legal standing in the inter
national community. f 'f
Nevertheless, such entities have been allowed on occasion o*
to participate in their own name in international activities and
granted practically the status of a sovereign state. It is when
acting in this capacity that colonies and dependencies are con-
sidered international persons. f"!
While still a colony of Great Britain, India was allowed . y'?f
qualified membership in the League of Nations, signed the r-; ,
Treaty of Versailles, and became a charter member of the i.ry
United Nations. The Philippines was a signatory of the wiy
Universal Postal Convention in 1906, the International Sugar ^
Agreement in 1937, the Declaration by United Nations in
1942, and the United Nations Charter in 1945, before it t 1-
became independent in 1946.
44. W hat are mandates and trust territories?
These are non-self-governing territories which have been

placed under international supervision to insure their political,
econom ic, social and educational advancement.
The system of mandates was established after W orld War
I to avoid outright annexation of the under-developed ter
ritories taken from the defeated powers and to place their ad
ministration under the League o f Nations. Its basic principles
have been retained by the more comprehensive trusteeship
system devised in the United Nations Charter.
Three kinds of territories are provided for, viz: (a) those
held under mandate under the League o f Nations; (b) those
detached from the defeated states in W orld W ar II; and (c)
those voluntarily placed under the system by the states
responsible for their administration. (U.N. Charter, A r t 47).
Pending the development of these territories, sovereignty
over them is lodged in the United Nations, but they are
allowed certain rights that give them the qualified status of an
international person. A m ong these is the right to make direct
representations with the Trusteeship Council in connection
w ith their administration.
45. Is the Vatican City a state?*
1
There is no clear consensus on this matter. :
A lth ough Italy recognized “ the state of the Vatican
under the sovereignty o f the Supreme P on tiff” in the Lateran
Treaty o f 1928, doubt is expressed by som e ju rists as to its real
status, considering its small population and territory, the ap
parent impairment o f its independence as an enclave in Italy,
and the circum stance that its governm ent is organized more
for spiritual rather than political purposes.
Nevertheless, the Vatican City exercises certain rights
generally reserved to states, such as the right o f legation and
the right to enter into treaties, and a considerable number of
states have recognized it as a member o f the international com
m unity.
THE INTERNATIONAL COMMUNITY 17
46. W h at is a belligerent community? In what sense is it

considered a subject of international law?
A belligerent community may be described as a group of

rebels under an organized civil government who have taken up
arms against the legitimate government.
When recognized, it is considered a separate state for pur
poses of the conflict and is entitled to all the rights, and sub
jected to all the obligations, of a full-fledged belligerent under
the laws of war.
Thus, it may exercise the right of visit and search, seize
contraband, and establish blockades; on the other hand, any in
jury it may cause third states or their nationals is imputable to
it and not to the legitimate government which it is resisting.
{Schw arzenberger, 70; W ilson and Tucker, 69-72).
47. When may international administrative bodies be

considered subjects of international law?
They m ay be so considered when they are autonomous,

i.e., they are n ot su bject to the control of any single state, and
their purposes are mainly non-political.
E xam ples are the International Labor Organization, the
F ood and Agricultural Organization, and the International
M onetary Fund, which may enter into agreements with the
U nited Nations for the pursuit o f their respective objectives.
M ention m ay also be made o f the European Commission
of the Danube and the Central Commission for the Navigation
o f the Rhine, which exercise legislative, administrative and
judicial powers directly applicable to individuals. (Fenwick,
199-200).
48. W hat were the so-called trading corporations?
These were corporations which were vested by their

respective sovereigns with certain governmental powers over
territory placed under their jurisdiction. Examples are the
British North Borneo Company and the Dutch W est India
IH r . ' l U l ' . A ' U O ’ . Ai , LA / / f . h /
(Company, now extinct because of the revocation of the*r

unusual charters by their governments.
49. From the traditional viewpoint, is the individual a

su bject or an object o f international law? *
Traditional concept regards the individual as an object of

international law who can act only through the in
strumentality of his own state in matters involving relations
with other states. If he is injured, for example, by reason of a
w rong imputable to a foreign jurisdiction, he can secure
redress under international law only through the assistance
and and not otherwise.
In theory, it is his state whose right—i.e., its right to have
its nationals respected and protected by other states while
within their jurisdiction—has been violated. Hence, it is the
state and not the individual that can be a proper party in the
assertion of an international claim for damages.
50. Notwithstanding this traditional theory, what are

some of the manifestations of the growing tendency to regard
the individual as a subject rather than as a mere object of in
ternational law? *
(1) The United Nations Charter reaffirms “ faith in fun

damental human rights, in the dignity and worth of the human
person, and in the equal rights of men and women.”
(2) The Universal Declaration of Human Rights
recognizes “ the inherent dignity and the equal and inalienable
rights o f all members of the human fam ily.”
(3) A number of treaties directly confer upon individuals
the right to bring lawsuits against states before national or in
ternational tribunals for redress of the private interests
violated. Examples are the Treaty of Versailles, the minority
treaties in favor of racial, linguistic and religious groups, and
the German-Polish Convention Regarding Upper Silesia.
(4) States are obliged to maintain an international stan
dard of justice in the treatment of aliens within their jurisdic-
mi'! INTMHNATIONAL ('(IMMUNITY
10
(ion, hiding which they mny bo Imld liable In dmiiuges |,„ tUiy
injury sutioivd by stu b loioiguoiH
(Id The (lon ocide Convention condem ns Mm imiî v.hUh
munition of national, ethnic, racial or religions gioups ns s
crime under international law mul malms Mm pui pat* ntor s
tluMvof, including individuals, subject to punishment
((>) rim T ok y o mul Nuremberg wiir crimes Mads el/
Inched direct responsibility to individuals lot offenses com
mil tod by thorn in violation of tho lawN of war,
(7) Pirates havo boon immemorinlly brandod honing
humanis generis and aro diroctly and individually punishable
for tlioir acts by whichever state may have them in custody,
(8) Certain laws of war and neutrality, such as Mm rules
on carriage o f contraband and broach of blockade, procedure
before prize courts, espionage, and treatment of the sick and
wounded and prisoners o f war, directly affect the individuals
themselves instead o f the states to which they belong.
(9) The Hague Convention of 1930 lays down specific
rules intended to prevent the anomalous condition of
statelessness, and the Covenant Relating to the Status of
Stateless Persons, adopted in 1954, grants them certain basic
rights.
(10) The doctrine of incorporation makes the law of na
tions part of the law of the state and, hence, directly applicable
to its individual inhabitants.
( k'lptOr f V
•n r U M l'fL U N A T IO N S
4* v(/hm I- ♦h'* (in i tori Notions?
If if' fit, international organization created at the Sa/>

♦ (••i f, ( o r . f > r w h i c h was held in the Unitod Stato*,
a m»i f0 j (mt4 26, 1945. The U.N., as it is comm only
>►dish i " f wind the League of Nations and is governed by a
' o o»* r "he h t nrne into force on October 24, 1945. Composed
oi mo/'dN of oolv 51 members, the United Nations has grown
'■'*i fr 11/ to? nr- (!,de most of the states of the world.
V the principal purposes of the United Na-

f I
A' / r/rdiog to Article 1 of its Charter, the purposes of the

I - nd&d Nations are:
*11 To maintain international peace and security, and to
i hrO end: C> take effective collective measures for the preven-
f mb vnd removal of threats to the peace, and for the suppres
sion of nets of aggression and other breaches of the peace, and
■0 bNng about by peaceful means, and in conformity with the
i/Nnciyrfes Of justice and international law, adjustment or set-
Coovent of international disputes or situations which might
lend to a breach of the peace;
i‘£f T o develop friendly relations among nations based
Od 'fe'spfeCi for the principle of equal rights and self-
determination of peoples, and to take other appropriate
mNmu/’eS' to Strengthen universal peace;
Td achieve international cooperation in solving inter-
nffLo.da/ jjtobhtiis of an economic, social, cultural or
d'/rz/fr/dt^riafn character, and in promoting and encouraging
'A human rights and for fundamental freedoms for all
i f distinction aS to race, sex or religion; and
*4/ To be a Center for harmonizing the actions of nations
iff f rre attainment of these common ends.
20
m i i n ii it 11 [ i h h in /;
X \ \N I m i ill!' Hit' I i n i t l l l l l H I l l ill p j III* I p l l ' l j ol Ul< t l h i U f i
Nn( ioun '"
A iv o id m g In A il lr lo ’/ ol llio ( l i i i i b n , ihr. I I I I imti ib;

im*u\bei*», in pin Mint ol l lio pin pohni Hl,iil,<d in /w tx le j, thull
in*t m m v tin lin u o w it It I h r b illo w in g pi iim p h u r
(1) The Oi gnni/.ul ioii i.mburied on I,ho noveioign cqu/dd//
of all it s members.
U’) All inrnihni.M, in order to insure to nJJ of them iho
lights ami benefits resulting from membership, shall fulfill in
good faith the obligations assumed by them in accordance with
t hr Charter.
(3) All members shall settle thrir international diapufoa
by peaceful moans in such manner that international peace and
security, and justice, are not endangered.
(*l) All members shall refrain in their international rela
tions from the threat or use of force against the territorial in
tegrity or political independence of any state, or in any manner
inconsistent with the purposes of the United Nations.
(5) All members shall give the United Nations every
assistance in any action it takes in accordance with the
Charter, and shall refrain from giving assistance to any state
against which the United Nations is taking preventive or en
forcem ent action.
(6) The Organization shall insure that states which are
not members of the United Nations shall act in accordance
with these principles so far as may be necessary for the
maintenance o f international peace and security.
(7) N othin g contained in the present Charter shall
authorize the U nited Nations to intervene in m atters which are
essentially within the dom estic jurisdiction o f any state or
shall require the m em bers to subm it such matters to settle
ment under the Charter; but this principle shall not prejudice
the application o f enforcem ent measures under Chapter V II.
n i l v //' /1// ii'inn wfi m
•‘Him*/Wib'dniliittyn rffi rw>t i«^ (^

Hu m 'tiUhl-u,, ‘,i,lH'HI ‘Mi >11 HllfhflUlitH INf HftllAtfr ••*'»*. i.
Ti l 10 UNI TKI ) NATI ONS
58. When and how may a member of the United Nation**

be suspended? W hat is the effect of such suspension, and how
may it be lifted? *
A member against which preventive or enforcement ac

tion has been taken by the Security Council may be suspended
by at least two-thirds of those present and voting in the
General Assem bly upon recommendation of a qualified majori
ty in the former.
When thus disciplined, the member is not suspended from
the Organization itself but only from the exercise of the rights
and privileges of membership. This means that its obligations
under the Charter will continue.
Only the Security Council may lift the suspension by a
qualified majority vote. (Id., A r t 5).
59. When may a member be expelled, and how? *
The penalty of expulsion may be imposed upon any mem

ber which has persistently violated the principles con
tained in the Charter. This is effected by a vote of at least two-
thirds of those present and voting in the General Assembly
upon the recommendation of a qualified majority in the Securi
ty Council. (Id., Art. 6).
60. M ay a member withdraw from the United Nations?
There is no provision in the Charter allowing or pro

hibiting withdrawal. However, Indonesia withdrew in 1965
and no action was taken to compel it to remain in the Organiza
tion. Subsequently, upon the overthrow of President Sukarno,
Indonesia resumed its membership in the United Nations and
was allowed to do so.
61. W hat are the principal organs of the United Na

tions? *
The six principal organs of the United Nations are as

follows:
4 A U N\ \i iO\ U l \\\ U\ \ 11 \\ 1 1,
i L» The G eneral A ssem h lv .

r2i The Security Council.
<3i The E con om ic and Social t \unw d
U) The Trusteeship Council
i5» The International Court ot J u sn co
ob The Secretariat. [LL, \ ( \
62. W hat are the subsidiary orguns? i h\ &esiim ples
They are those which the Charter it sell has n un ! ml ot

w hich it allows to be created whenever oet easa« v l»v the
General A ssem bly, the Security Council or the hVonomh ami
Social Council. Exam ples are i he t nterim Commit tee oi “ I .it lie
Assem bly,'* the Military Staff Com m ittee ami the I lumen
R ights Com mission. C d , Art. U
63. W hat are the so-called specialised ayem iep?
These are international bodies which, while not part o f t ho

United Nations, have been brought into close contact with it
because of their purposes and functions, A m ong t hose m e the
W orld Health Organization, the International M onetary Euud,
and the Technical Assistance Board,
64. W hat is the General A ssem bly? *
The General A ssem bly is the central organ o f the Untied

Nations. All members are represented in it ami it pKeroiseS
powers and functions with respect to the other organs 11 is the
principal deliberative body of the organisation and is vested
with jurisdiction over matters concerning the internal
machinery and operations of the United Nations, (M , ( 'hoftfpr
IV).
65. D iscuss its com position,
The General A ssem bly consists of all the members of (he

United Nations, each of which is entitled to semi no more Hum
five delegates and five alternates ami as many le< Imiral and
other personnel as it may need, {h i, Art, Ml-
T l lK II NI TKI ) NATIONS 'Ah
The reason for this system of multiple delegates i« to

enable the members to attend all of several meetings that may
be taking place at the same time in the different organs or com
mittees of the Organization.
However, each delegation is entitled to only one vote in
the decisions to be made by the General Assembly. (Id., A r t
18).
66. W hat is the Interim Committee or “ Little

Assem bly’ 1?
Subsidiary to the General Assembly is the Interim Com

mittee, popularly known as the “ Little Assem bly,” which was
created in 1947 for a term of one year and re-established in
1949 for an indefinite term. Composed of one delegate for each
member-state, it meets when the General Assembly is in recess
and assists this body in the performance of its functions.
67. When are the sessions of the General Assembly

held?
Regular sessions are held every year beginning the third

Tuesday of September.
Special sessions may be called at the request of the
Security Council, a majority of the member states, or one
member with the concurrence of the majority. (Id., Art. 20).
Under the Uniting for Peace Resolution, an emergency
special session may be called within 24 hours at the request of
the Security Council by vote of any nine members or by a ma
jority of the members of the United Nations.
68. What are the voting rules in the General Assembly?
Each member of the United Nations has one vote in the

General Assembly. (Id., A r t 8).
“ Important questions” are decided by a two thirds ma
jority of those present and voting. All other matters, including
the determination of whether a question is important or not,
are decided by simple majority. (Id., Art. 18).
\ r k\ v ;:o \ M ; \\\ Kl ' \ \ K\\ I K
For :be election of ;he judgvs in the International Court of

Justice., an absolute majority is required in the General
Assembly as well as in the Security Council.
Proposals to amend the Charter of the United Nations
m ay be adopted in two ways: V directly, by two-thirds of all
the members of the General Assembly, or 2) by two-thirds of a
general conference to be called for this purpose by two-thirds
of all the members of the General Assembly and any nine
members of the Security Council. Any amendment thus pro
posed shall be subject to ratification by at least two-thirds of
all the members of the United Nations, including all the perma
nent members of the Security Council. (Id, Art. 108).
69. What are “ important questions” ?
According to the Charter, “ important questions” include

recommendations concerning international peace and security,
election of members of the Councils, admission and expulsion
of members and suspension of the rights and privileges of
membership, questions relating to the trusteeship system, and
budgetary matters. (Id, A r t 18).
70. Mention some of the important functions of the

General Assembly.1
2
(1) Deliberative. The General Assembly is empowered

to discuss principles regarding the maintenance of interna
tional peace and security, subject to certain rights primarily
vested in the Security Council,' and may take appropriate
measures toward this end, including studies and recommenda
tions to promote international cooperation in the political field,
and the codification of international law. (Id, Arts. 11,13).
(2) Supervisory. It receives and considers reports from
the other organs of the United Nations, makes recommenda
tions for the coordination of their activities, approves
trusteeship agreements in non-strategic areas, and supervises
the Trusteeship Council and the Economic and Social Council*
as well as the administration of non-self-governing territories.
(Id, Arts. 15, 16).
(3) Elective. . Important voting functions are also
vested in the General Assembly, such as the election of the
non-permanent members of the Security Council* some
members o f the Trusteeship Council, and all the members of
the Econom ic and Social Council With the Security Council, it
selects the judges of the International Court of Justice and the
Secretary-General and votes on the admission and discipline of
the members of the United Nations. It also participates in the
amendment of the Charter. (Id, Arts. 4, 5, 6, 23, 61, 86, 87, 108,
109; I.C.J. Statute, A r t 10).
(4) Budgetary. It is also the General Assembly that
controls the finances of the United Nations, approves its
budget and apportions expenses among the members. Authori
ty is likewise conferred upon it to examine the administrative
budgets of the specialized agencies and to make recommenda
tions to such bodies. (U.N. Charter, Art. 17).
(5) Constituent. The General Assembly also par
ticipates in the amendment of the U.N. Charter, (supra).
71. WKat is the Security Council?
It is the organ of the United Nations primarily responsi

ble for the maintenance of international peace and security.
This responsibility makes the Security Council a key influence
in the direction of the affairs not only of the Organization but
of the entire international community as well.
72. Discuss the composition of the Security Council. *
The Security Council is composed of fifteen members, five

of which are permanent. The so-called Big Five are China,
France, the Soviet Union (now replaced by Russia), the United
Kingdom, and the United States. The other ten members are
elected for two-year terms by the General Assembly, five from
the African and Asian states, one from Eastern European
states, two from Latin American states, and two from Western
European and other states. Their terms have been so staggered
as to provide for the retirement of one-half of them every year.
These members are not eligible for immediate re-election. (Id.,
Art. 23, as amended).
28 1NTE RN AT ION AL LAW UK VI K W 10U
Chairmanship of the Security Council is rotated monthly

on the basis of the English alphabetical order of the names of
the members.
73. When are the sessions of the Security Council held?
The Security Council is required to function continuously

and to hold itself in readiness in case of threat to or actual
breach of international peace. For this purpose, all members
should be represented at all times at the seat of the Organiza
tion. (Id, A r t 28).
74. Discuss the voting rules in the Security Council. *
Each member of the Security Council has one vote, but

distinction is made between the permanent and the non
permanent members in the decision of substantive questions.
According to the Yalta voting formula, as it is called, deci
sion on procedural matters is to be made by the affirmative
vote of any nine members of the Security Council. Decision on
non-procedural or substantive matters, on the other hand, re
quires the concurrence of also nine members of the body, but
including all the permanent members. However, no member,
permanent or not, is allowed to vote on questions concerning
the pacific settlement of a dispute to which it is a party. (Id.,
A r t 27, as amended).
75. Distinguish between procedural and non-procedural

or substantive matters. *
Procedural matters include questions relating to the

organization and meetings of the Council, the establishment of
subsidiary organs, and the participation of states parties to a
dispute in the discussions of the Security Council.
Substantive or non-procedural matters are those that
may require the Security Council under its responsibility of
maintaining or restoring world peace to invoke measures of en
forcement.
l ilt' HNlTl’ H NATH HIM
U n h k o m I ho l u 'n o tn l A hmoi nl »l y , 11m <Inim mi mi 11<»n ol I ho

ca lo go i \ ol n quosi ton im oomndoi ml it mm p io i odm id inn I foi in
i ho S tv u n t v ( \u u n il ( / ' A Y /, ,77)
/(>, \\ lu ll is I ho ho onllod Mv o io "? "
rim n o g n liv o vol.o w hich any o| I Im poim /m oul, m om boin

is allow ini l o cast in l ho tlocomm ol mm pi ocodui id quoMtionn im
Know'll as a voto. T ho ollool ol Ihin voto i / j to dnlonf, tin*
moasut'o u tu li'r co n sid e ra tio n r v n i il s iip p o ito d by n m a jo rity
or, in la o t, a ll ol tho ot hoi mem bers ol (.ho S e cu rity I Jouncil.
77. Is absonoo or ahslcni ion considered n veto? n
In practice, tho abstention or absence of a permanent

monibor during a volution on a substantive or non procedural
mat tor is not regarded as a veto. Thu measure voted upon is
deemed passed if approved by at least nine members of the
Security Council including the rest of the Big Five.
78. In what cases is the Yalta voting formula not ap

plied?
First, in the election of the judges of the International

Court of Justice. The absolute m ajority required in the Securi
ty Council is taken w ithout distinction between the permanent
and the non-permanent members. (l.C.J. Statute, Art. 10).
Second, in the am endment of the Charter of the United
Nations. The proposal to call a general conference for this pur
pose m ust be supported by any nine members of the Security
Council, also w ithout distinction between the Big Five and the
other members.
A s previously noted, however, all the permanent
members m ust concur in the ratification of the proposed
amendments. (U.N. Charter, Art. 109).
79. B riefly discuss the functions o f the Security Council.
In pursuance of its primary responsibility for the

maintenance of international peace and security, the Security
BCFTHWLTBBBW
;io mti mi nati dnai . I,aw m-; vi MWMil
< ‘ »tinrj| nmy l.nhn Sli*p.q t>»t Mlft pacific Settlement of disputes
<»i, wlmn imiesstii y( |»tevnuMvoor enforcement action.
Ilnw^vm, Mm <Iinpi11.<> must lift international, Le.f it must,
iilltM l l!i“ pnm-n nf Mm world mid not lift merely an internal
dissension sui h as a civil war, Otherwise, the intervention of
i l u - ^ n u ity ( muncil would violate one of the principles of the
lim it'd Nnlions, »,<> wit, Mint it shell not intervene in any mat-
i.f i wiMiin Mm domestic jurisdiction of any state.
Tim .Security Council also approves trusteeship
iij/M*t«iimiii.q in strategic areas and perform s a number of impor-
l.unl. voting functions such as those relating to the admission
nod disnplino of members of the United Nations, the election
of the judges of the International Court of Justice and the
MerM*u,ry-('ieueral, and the amendment of the United Nations
ChmM-r. (/d.. A rts, 4, 5, 6, 24, 83, 97; I.C.J. Statute, A rt. 8).
HO, W bat is the Econom ic and Social Council?
Recognizing that the prom otion “ of social progress and

better standards of life in larger freedom ” is indispensable to
world harmony and order, the United Nations Charter has
created an organ charged with the particular duty of pursuing
this objective. This is the E conom ic and Social Council.
HJ, U jscuss its composition. *
The Economic and Social Council has fifty-four members

ela te d by the General A ssem bly for a staggered term o f three
years, with right to run for re-election. (U.N. Charter, A rt. 61 as
amended}.
H2. W h <jfj a re i ts sessions held?
■i be Econom ic and Social Council norm ally holds tw o ses

sions a year, one beginning in January and the other in June. It
inay also meet in special session at the request o f a m ajority of
its members, Md*, Art. 72)t
VrV'- , *
TU K UNITKI) N ATI ONS
83. Discuss the vot ing rules in this organ.
Each member of the Econom ic and Social Council has one

vote, and decisions are reached by a majority of those present
and voting. M embers of the United Nations and represen
tatives of the specialized agencies may be allowed to par
ticipate, without vote, in the deliberations of the Council. (Id.,
Arts. 67, 69).
84. Discuss the functions of the Economic and Social

Council.
The Econom ic and Social Council, under the authority of

the General Assem bly, is charged with the duty of promoting:
(a) higher standards of living, full employment and con
ditions of econom ic progress and development;
(b) solutions of international economic, social, health
and related problems; and international cultural and educa
tional cooperation; and
(c) universal respect for, and observance of, human
rights and fundamental freedoms for all without distinction as
to race, sex, language or religion. (Id., A r t 55).
In the performance of this duty, the Council is assisted by
certain subsidiary organs, such as the Commission on the
Status of W om en and the regional economic commissions for
Europe, Asia and the Far East, and Latin America. It also col
laborates and may enter into agreements,, subject to the ap
proval of the General Assembly, with specialized agencies like
the International Monetary Fund and the International Trade
Commission.
The Council may also prepare draft conventions and call
international conferences on matters within its competence,
assist members of the United Nations upon request, and send
and receive recommendations and reports.
85. W hat is the Trusteeship Council?
It is the principal organ of the United Nations which is

32 1NTKKN ATION Al. LAW I{I*',V I I'lWI'lK
directly charged with the administration of the international

trusteeship system.
86. D iscuss its com position.M
The Trusteeship Council is composed of: a) members ol

the United Nations administering trust territories; b) members
of the Big Five not administering trust territories; and c) as
many members of the United Nations elected for three-year
terms by the General Assem bly as may be necessary to insure
that the total membership of the Council is equally divided
between those which administer trust territories and those
which do not. (Id., Art. 86).
87. When are its sessions held?
It meets twice a year, generally in January and June. It

may also meet in special session upon request o f the General
Assem bly or the Security Council, or, with the concurrence of a
majority of the members of the Trusteeship Council itself,
upon request of any of its members or of the E conom ic and
Social Council. (Id., Art. 90).
88. Discuss the voting rules in this body.
Each member of the Trusteeship Council has one vote and

decisions are reached by a majority of those present and
voting. (Id, Art. 89).
89. W hat are the functions of the Trusteeship Council?
Under the authority of the General A ssem bly, the

Trusteeship Council may consider reports subm itted by the
administering authority; accept petitions from the trust ter
ritories and examine them in consultation with the administer
ing authorities; provide for periodic visits to the trust ter
ritories; and formulate questionnaires on the political,
economic, social and educational advancement of the in
habitants of the trust territories. (Id, A rt. 87).
0
&
mio u n it i *!|> n a t i o n /!
90. W hat. I n (ho lid o in ti! iom il ( !oiirl of
It is t ho judicial organ of (ho lim b 'd Nntion/nm d /cplaoed

the' Permanent Court ol I nfnrnafiniinl .Juutiee \in<Ugt Iho
defunct Longue of Nat ions. The W orld Court, un it in com m on
lv called, is governed by a Statute which in annexed to and
made a part of the United Nations Charter.
91. D iscuss the com position of the Court. *
The Court is com posed o f fifteen members who m ust be of

high moral character and possess the qualifications required in
their respective countries for appointm ent to the highest
judicial office or are jurisconsults of recognized com petence in
international law. A s much as possible, they must represent
the main form s of civilization and the principal legal system s
o f the world. (I.C.J. Statute, A rt. 2).
92. H ow are the judges of the Court chosen? *
Nom inations to the Court are made by the national

groups created by their respective governm ents in accordance
with the H ague Conventions of 1907. No group shall nominate
more than four persons, not more than two of whom shall be of
their own nationality. (Id, A r t 4).
Candidates obtaining an absolute m ajority in the General
A ssem bly and in the Security Council are considered elected.
In the event that more than one national of the same state ob
tain the requisite m ajorities in both bodies, the eldest only is
chosen. (Id, A rts. 8, 10).
Detailed provisions are contained in the Statute for the
filling of seats in the Court whenever the membership is not
com pleted by the regular procedure of election. A join t con
ference consisting of six members, three chosen by the General
Assem bly and the other three by the Security Council, or, if
this fails, the ju dges already elected, shall fill the remaining
vacancies. (Id, A r t 10)
34 l M 'K K N A T IO N A l« LAW 1U0VIKWKU
93. W hat is the term o f office o f the judges?
They are elected for a term of nine years, staggered at

three-year intervals by dividing the ju dges first elected into
three equal groups and assigning them by lottery terms of
three, six and nine years respectively, im m ediate re-election is
allowed.
The President and the Vice-President, elected by the
Court for three years, may also be re-elected. (Id , A rts. 13, 21).
94. When are the sessions of the Court held?
The Court shall remain permanently in session at the

Hague or elsewhere, as it may decide, except during the
judicial vacations the dates and duration of which it shall fix.
{Id. A r t 22).
95. Discuss the functions of the Court. *
The principal functions of the Court are to decide conten

tious cases and to render advisory opinions.
Only states, including non-members of the United Na
tions under certain conditions, may be parties in contentious
cases. (Id, Arts. 34, 25). Advisory opinions may be given upon
request of the General Assem bly or the Security Council.
Other organs of the United Nations, when authorized by the
General Assembly, may also request advisory opinions on
legal questions arising within the scope of their activities.
(U.N. Charter, Art. 96).
96. W hat is the voting procedure in the Court?
All questions before the Court are decided by a majority

of the judges present, the quorum being nine when it is sitting
en banc. In case of tie, the President or his substitute shall have
a casting vote.
However, no judge may participate in the decisipn of a
case in which he has previously taken part as agent, counsel or
advocate for one of the parties, or as a member of a national or
T IIK lIN n ' K I ) NATIONM
international court, or o f n comim a/uon o f inquiry, or in fur/

other rapacity. (I.C.J. Statute, Arta. *}J>, hit)
97. Discuss the Secretariat and the Secrctary Geri-

o ra l.
The ( ’ h ief adm in istrative organ o f the United Nation?/ b>

the S ecretariat, which is headed by a Secretary General,
The S ecretary ( leneral is chosen t>y the G eneral A?*,sera-
hly upon recom m endation o f the Security Council. His term jb
fixed at five years by resolution o f the? Conernl Assembly, arid
he may he re-elected.
98. W h at are the functions o f the S ecreta ry -G en

eral?
His functions may be classified as follows;

(1) R epresen ta tion a l. The Secretary-G eneral is the
highest official and spokesman o f the United N ations. When
acting in this capacity, he enjoys the usual diplom atic im m u
nities and privileges, which only the Security Council may
waive.
(2) P olitical. The Secretary-General may bring to the
attention o f the O rganization any matter which, in his opin
ion, may threaten or disturb international peace and security.
He may assist in its solution with the authority o f the Security
Council.
(3) A d m in istrative. The Secretary-General is the head
o f the adm inistrative personnel o f the United N ations and is in
charge o f coordinating the activities o f the various organs o f
the O rganization.
(4) Secretarial. The Secretary-General acts in that ca
pacity in all the m eetings o f the General Assem bly, the Secu
rity Council, the Econom ic and Social Council, and the Trust
eeship Council.
(5) B u d getary. The Secretary-General also prepares
the budget o f the U nited Nations for subm ission to and ap
proval by the G eneral Assem bly.
Chapter V
TH E CONCEPT OF TH E S T A T E ‘ '
99. On the basis of its accepted definition, what are the

essential elements of a state?
The essential elements of a state are:

41) People.
(2) Territory.
(3) Government.
(4) Sovereignty, or independence.
100. Define “ people” as an element of the state. Is there

any legal requirement regarding the size of a state’ s popula
tion?
The term “ people” refers to the inhabitants of a state.

They are regarded as a single unit and must com e from both
> sexes so as to be able to perpetuate themselves.
y There is no legal requirement regarding the size of a
state’s population. Barbados, for example, has about 300,000
people only but has been admitted to the United Nations.
For practical purposes, however, it is desirable that the
population be big enough to be able to sustain itse lf and main
tain its security and small enough to be easily governed.
101. Define “ territory.” How big should it be to be an

element of the state?
Territory is the fixed portion of the surface of the earth on

which the population of a state resides. It must be fixed so
that the jurisdiction of the state may be ascertained. The so-
called “ floating states” of the past, which were made up of
nomadic tribes, have not received international recognition.
Legally, the size of the territory does not matter as long
as the state is able to comply with its international obliga
tions. The classic example of a small state is San Marino, with
a territory of only thirty-eight square miles.
From the practical standpoint, however, the territory
should be big enough to bo able to provide for the neeoe of toe
inhabitants and small enough to be easily a 0 mini stereo eno
defended.
102. Define “ governm ent” and explain its functions. Is

any particular form of government required of the state?
Governm ent is defined as the agency through v/hich the

will of the state is formulated, expressed and realized. I n inter
national law, it is the instrumentality that represents the state
in its dealings with other international persons. The state can
assert rights, and is held responsible, through its government.
No particular form of government is required of a state.
The important thing is that it is able to observe its obligations
under international law.
103. Define “ independence.” W hy is it necessary in in

ternational law?
“ Sovereignty” and “ independence” are often used inter

changeably. Strictly speaking, however, independence is only
the external manifestation of sovereignty, which also em
braces* power over internal matters. Independence may be
defined as the power of a state to administer its external af
fairs without direction or interference from another state.
Independence is necessary in international law because an
entity that does not have freedom to direct its foreign relations
is not, as a rule, treated as a subject but merely as an object of
international law.
104. H ow may a state come into existence? *
A state may be created in any of the following ways:
(1) B y peaceful acquisition of independence, as in the

case of the Philippines.
(2) B y revolution, as in the case of the United States.
(3) B y unification of several states, as in the case of Ita
ly.
(4) By secession, as in the case of Bangladesh.

(5) By agreement, as in the case of the Netherlands.
(6) By attainment of civilization, as in the case of Japan.
105. Once a state is created, what may it claim as its fun

damental rights? *
The fundamental rights of a state are the following:

(1) The right of existence and self-defense.
(2) The right of independence.
(3) The right of equality.
(4) The right of property and jurisdiction.
(5) The right of legation or diplomatic intercourse.
106. What do you understand by the principle of state l

continuity? *
It means that the legal existence of a state continues not

withstanding changes in the size of its population or territory
or in the form or leadership of its government as long as the
four essential elements of statehood are retained.
107. In the famous Sapphire Case, Emperor Louis

Napoleon filed a damage suit on behalf of France in an
American court, but he was deposed and replaced as head of
state pendente lite. Was the action abated? *
No, because it had in legal effect been filed by France,

whose legal existence had not been affected by the change in
the head of its government. Napoleon had sued not in his per
sonal capacity but officially as sovereign of France. Hence,
upon recognition of the duly authorized representative of the
new government, the litigation could continue. (11 Wall. 164).
108. Is it strictly correct to say that the state is immor

tal? Why?
The state is immortal only as long as it has people, ter

ritory, government, and sovereignty. If any or all of these
elements disappear, the state itself is extinguished, or dies.
T!IK CONCKPT OF THK STATK 39
109. How muy a state be extinguished? *
A state may be extinguished through natural causes, as

when its population dies out as a result of an epidemic or its
territory is lost because of volcanic eruption or other similar
disaster. However, these are not common methods of state ex
tinction.
M ore usual are the artificial means, which include:
(1) Anarchy.
(2) M ass emigration of the population.
(3) Annexation.
(4) M erger or unification.
(5) Dismemberment.
(6) D issolution o f a federal union.
(7) Partial loss of independence, as in the case of the
suzerainty and the protectorate.
110. W hat is the principle o f state succession? *
State succession is the substitution of one state by

another, the latter taking over the rights and some of the
obligations of the former.
State succession is either universal or partial
Universal succession takes place when a state is complete
ly annexed by another, or is dismembered or dissolved, or is
created a£ a result of the merger of two or more states.
Partial succession takes place when a portion of the ter
ritory of a state is ceded or secedes or when the state loses part
of its sovereignty by joining a confederation or becoming a
protectorate or a suzerainty. (Oppenheim-Lauterpacht, Sec. 80;
Fenw ick, 152).
111. M ention some of the general effects of state succes

sion.
(1) The allegiance of the inhabitants of the predecessor

state is transferred to the successor state.
(2) The political laws of the predecessor state are
automatically abrogated but the non-political laws are deemed
40 I N T E R N A T I O N A L LAW R E V IE W E R
continued unless expressly repealed or contrary to the in

stitu tions o f the new sovereign,
(3) The public property of the predecessor state is nr,
quired b y the successor state but not the tort liability and, in
som e cases, the contractual liability of the former.
(4) Treaties entered into by the predecessor state are not
considered binding on the successor state except those dealing
w ith local rights and duties such as servitudes and boundaries.
112. Distinguish between succession of states and suc

cession o f governments.
In succession of states, one state is 'supplanted by

another. In succession o f governments, the integrity of the
original state is not affected as what takes place is only a
change in one of its elements, the government. Thus, when the
R epublic of the Philippines was converted into a parliamen
tary governm ent in 1973, the state known as the Philippines
itself remained unchanged.
113. W hat are the general effects of a change of govern

m ent? *
Where the change is effected by peaceful means, such as

b y amendment of the Constitution, the new government in
herits all the rights and obligations of the old government.
Where the change is effected by violence, the new govern
ment also inherits all the rights of the old government. With
regard to the obligations, however, the same may be rejected if
they are of a political complexion but must be respected if they
are the consequence of the routinary acts of administration of
the old government.
Thus, debts incurred by the old government for the pur
chase of military equipment used against the new government
may be disowned by the latter after it shall have defeated the
former. On the other hand, postal money orders purchased
from the old government in the ordinary course of business
must be honored by the new government. (United States /for
George W. H opkins] v. Mexico, Opinion o f Commissioner,
1927, 42).
I
Chapter VI
RECOGNITION
114. What is recognition?*
It is an act by which a state acknowledges the existence of

another state, a government or a belligerent community and
indicates its willingness to deal with the entity as such under
the rules of international law.
115. What is the nature of recognition?
The general view is that it is declaratory'and discretion

ary or political, that is, that it merely affirms an existing fact,
like the possession by the state of all its essential elements,land
that it may be granted or withheld at pleasure.
The minority theory, on the other hand, holds that
recognition is constitutive and compulsory or legal, meaning
that it is the act of recognition that constitutes the recognized
entity into an international person and that such act may be
compelled once the elements of international personality are
established. (Briefly, 124; Bishop, 232-233).
116. Who has the power of recognition under our Con

stitution? *
It is the President of the Philippines, by virtue of his

authority to send and receive diplomatic representatives, to
enter into treaties, to establish blockades, and in general to act
as the foreign policy spokesman of the nation. (Constitution,
Art. VII).
117. What are the forms of recognition? Explain each

briefly.
Recognition may be either express or implied.

Express recognition may be verbal or in writing. It may
41
42 INTERNATIONAL LAW REVI EWER
be made through a formal proclamation, a stipulation in a trea

ty, a letter or telegram, on the occasion of an official call, etc.
Implied recognition is effected when the recognizing andJ
recognized states enter into a treaty regulating their relations
in general or ydien they exchange diplomatic representatives.
(Hack worth, 168).
In the case of the belligerent community, the recognition
by the legitimate government is implied when it blockades a
port held by the former. Other states may manifest recognition
by observing neutrality in the conflict. (Bishop, 261).
In every case, it is important “ that the act constituting
recognition shall give a clear indication of an intention (1) to
treat with the new state as such, or (2) to accept the new
government as having authority to represent the state it pur
ports to govern and to maintain diplomatic relations with it, or
(3)vto recognize in the case of insurgents that they are entitled
to exercise belligerent rights.” (Hackworth, 166).
118. What is the effect of common membership in the

United Nations of states not recognizing each other?*
In practice, such states are deemed to recognize each

other only within the organization and not elsewhere. Thus,
the Philippines and the Soviet Union dealt with each other
within the United Nations, of which they are both charter
members, but did not otherwise maintain diplomatic relations,
until they expressly recognized each other in 1975.
119. To what may recognition be extended?*
Recognition may be extended:

(1) To a state;
(2) To a government, either as dejure or de facto; or
(3) ^, To a belligerent community.
120. Distinguish between recognition of a state and

recognition of a government. *
(1) Recognition of a state includes the recognition of its'

government as the latter is an essential element of the former;
RECOGNITION 43
recognition of a government, on the other hand, does not

necessarily signify the existence and recognition of a state as
such government may not be independent. (Hackworth, 166;
Fenwick, 157).
(2) Recognition of a state is generally irrevocable while
recognition of a government may be withdrawn.
121. What are the practical criteria for the recognition of

a government? *
A sa matter of practice, states extend their recognition to

a new government only when it appears that:
(1) It has control of the administrative machinery of the
statewith popular acquiescence; and
(2) It is willing and able to comply with its international
obligations. (Fenwick, 159-162).
A government satisfying these requirements is usually
recognized as de jure. If it has not yet sufficiently demons
trated compliance with these conditions, it may for the time
being be recognized as de facto.
122. What are the kinds of de facto government?*
The three kinds of de facto government are the following:

(1) That which is established by the inhabitants who rise
in revolt and depose the legitimate regime. Example: the Com
monwealth under Oliver Cromwell which supplanted the
monarchy of Charles I in England.
(2) That which is established by the invading forces of
one belligerent in the territory of the other belligerent, the
government of which is also displaced. Example: the Japanese
occupation government in the Philippines which replaced the
Commonwealth government during World War II.
(3) That which is established by the inhabitants of a
state who secede therefrom without overthrowing its govern
ment. Example: the government of the Southern Confederacy
during the American Civil War which, however, did not seek to
depose the Union government. (Co Kim Chan v, Valdez Tan

K eK 75 Phil 131).
123. What is the Tobar or Wilson doctrine?
It is a doctrine which precludes the recognition of a

government established by revolution, civil war, coup d'etat or
other forms of internal violence until the freely elected ■
representatives of the people have organized a constitutional f-
government. !
The doctrine was first expressed in a treaty concluded in p
19G7 by the Central American republics at the suggestion of
Foreign Minister Tobar of Ecuador and was reiterated by
President W oodrow W ilson of the United States in a public
statement made in 1913.
124. W hat is the Stimson doctrine?
This doctrine precludes the recognition of any govern- ^

ment established as a result of external aggression.
Formulated by U.S. Secretary of State Stimson in 1932, it
was subsequently adopted by the League of Nations in a 1
resolution declaring that it was “ incumbent upon the ,
Members of the League of Nations not to recognize any situa
tion, treaty or agreement which may be brought about by j
means contrary to the Covenant of the League of Nations or to
the Pact of Paris.” (League o f Nations, Official Journal, Sp.
Supp. 10111932j, pp. 87-88). ?
125. What is the Estrada doctrine? * t
Under this doctrine, which is attributed to Foreign g

Minister Genaro Estrada of Mexico, the diplomatic represen-
tatives in a country where a political upheaval has taken place
will deal or will not deal w ith‘whatever government is in con
trol therein at the time and either action shall not be taken as a ■
judgment on the legitimacy of the said government. |
HM 45
I ‘ li llovv would you do.I mgui ,h b< t t rrr ognitiori of

(i </< /</i governm ent mol M of a ////■*> govern
ment’' *
(1) Uirnj'jul ion r/r ////(> j-> n l;jfjvejy permanent; recogni-

t ion ./<■ /o r /o is provisional
(2) Ib cog m tion dr fun> vests title to the properties of
I In* governm ent abroad, recognition dr. (a d o does not.
(3) Kerognition dr jurr brings about full diplom atic rela
tions. recognition dr jactr is limited to certain juridical rela
tions. (O ppenheim -Lauterpachl, 136-137).
127. In g e n e r a l, w h a t a r e th e e ffe c t s o f th e r e c o g
n itio n o f a s ta te o r g o v e r n m e n t ?
(1) Full diplom atic relations are established except

where the governm ent recognised is de (ad o,
(2) The recognized state or governm ent acquires the
right to sue in the courts o f the recognizing state.
(3) The recognized state or governm ent is entitled to the
possession o f the properties of its predecessor in the territory
of the recognizing state.
(4) All acts of the recognized state or governm ent are
validated retroactively, preventing the recognizing state from
passing upon their legality in its own courts.
128. Is non-suability an effect of the recognition of a

state or governm ent?
No, because whether a governm ent is recognized or not, it

would en joy im munity from suit in a foreign jurisdiction. To
cite a “ foreign sovereign in the municipal courts of another
state" would be “ an insult which he is entitled to resent” and
would “ vex the peace of nations.” (I)e H aber u. Queen o f Por
tugal, I 7 Q .Il 171).
129. The Soviet governm ent entered into a contract with

(l and subsequently, not having been previously recognized by
the United States, sued him in a New York Court, alleging

fraud and breach of the agreement. W ill the action be allowed?
Explain. *
The Court held: “ We reach the conclusion that a foreign

power brings an action in our courts not as a matter o f right.
Its power to do so is the creature of comity. Until such govern
ment is recognized by the United States, no such com ity ex
ists. The plaintiff concededly has not been so recognized. There
is, therefore, no proper party before us. W e may add that
recognition, and, consequently, the existence of comity, is
purely for the determination of the legislative or executive
departments of the government. Who is the sovereign of a ter
ritory is a political q u estion /’ (Russian Socialist Federated
Soviet Republic v. Cibrario, New York Court o f Appeals, 1923,
235 N. Y. 255).
130. Certain hides in M exico belonging to X were seized

by the Carranza government, then engaged in civil war, and
sold to an American firm which brought them to New Jersey.
Here an action to recover them was filed by the former owner
on the ground that the seizure was invalid. A t the time of this
seizure, the Carranza, government controlled about two-thirds
of Mexico but there was no government in that country
recognized by the United States. However, the United States,
on October 19, 1915, recognized the Carranza regime as a de
facto government and, on August 31, 1971, as the de jure
government of Mexico. What was the effect of these acts on
the action for recovery? Explain.*
“ When a government which originates in revolution or

revolt is recognized by the political department of our govern
ment as the de jure government of the country in which it is
established, such recognition is retroactive in effect and
validates all the actions and conduct of the government so
recognized from the commencement of its existence. (Williams
v. Bruffy, 96 U.S. 176, 178; Underhill v. Hernandez, 168 U.S.
250,253. x x x).
“ The principle that the conduct of one government cannot
be successfully questioned in the courts of another is ap-
lU'XXKJN ITION 47
plicable to a case involving the title to property brought within

the custody of the court, such as we have here, as it was held to
be in the cases cited, in which claims for damages were based
upon acts done in a foreign country, for it rests at last upon the
highest considerations of international comity and expedien
cy.” (Oetjen v. Central Leather Co., 246 U.S. 297).
131. What are the three stages of internal dissension?
They are simple lawlessness, insurgency and belligerency.

When the lawlessness spreads and develops a political motiva
tion, it becomes an insurgency; and an aggravation of in
surgency is a belligerency.
132. Distinguish between insurgency and belligerency. *
(1) Insurgency is the initial stage of a belligerency;

belligerency is more serious and widespread.
(2) Insurgency is directed by military authorities;
beligerency is under a civil government.
(3) Insurgency is not usually recognized; belligerency
may be recognized.
133. What are the usual conditions for the recognition of

belligerency? *
(1) There must be an organized civil government direct

ing the belligerency.
(2) The rebels must occupy a substantial portion of the
territory of the state.
(3) The conflict between the legitimate government and
the rebels must be serious, making the outcome uncertain,
(4) The rebels must be willing and able to observe the
laws of war. (Wilson and Tucker; 69).
134. What are the consequences of a recognition of

belligerency? *
Prior to recognition, the rebels shall be considered subject
to the authority of the legitimate government and punishable
for their acts under its municipal laws. Responsibility shall at
tach to the legitimate government and not to the rebels for any
damage they may cause third states.
After recognition, the belligerent community is treated as
an international person for purposes of the conflict, and its
relations with the legitimate government will thenceforth be
governed by the laws of war; e.g., the rebels will no longer be
punishable under municipal law when captured but wiil be en
titled to treatment as prisoners of war. A s for third states,
their claims must now be enforced against the rebel govern
ment itself, and they must maintain strict neutrality unless
they wish to openly join the conflict. (Id, Fenwick, 145-146).
Chapter V II
T H E R IG H T O F E X IS T E N C E A N D -
S E L F -D E F E N S E
135. W h a t is the m ost im portant righ t o f a state? *
It is the righ t o f existence and self-defense, w hich has also

been described as the m ost com prehensive, as all the other
righ ts o f the state flow from it. In the exercise o f this inherent
right, the state m ay take such measures, including the us.e o f
force, as m ay be necessary to counteract any danger to its ex
istence.
136. Is there any lim itation on the use o f force in the ex
ercise o f this right? *
Y es. A n y forcible measure taken in the exercise o f this

right m ust be ju stified, in the w ords of U.S. Secretary o f W ar
D aniel W ebster, “ b y a necessity o f self-defense, instant, over
whelming, and leaving no choice o f means and no m om ent for
deliberation.” Furthermore, they m ust “ be lim ited by the
n ecessity and k ept clearly within it. ” (W ilson and Tucker, 18).
137. D oes the possibility o f attack from the state ju stify

another state in attacking it first?
G rotius vigorou sly denounced the “ intolerable doctrine of

som e w riters that b y the law of nations we may rightly take up
arms against a pow er w hich is increasing, and m ay increase so
as to be dangerou s.” E quity, he contended, was entirely op
posed to the idea that the possibility of being attacked gives us
the right to attack on our part; it was only when there was ju st
ground o f war on other counts that the grow ing strength of a
rival m ight properly influence a decision to g o to war. (Fenwick
232).
On the other hand, Elihu R oot declared in 1914: “ It is well
understood that the exercise of the right of self-protection may
and frequently does extend in its effects beyond .the limits
49
of the territorial jurisdiction of the state exercising it. The

strongest example probably would be the mobilization of an ar
my by another power immediately across the frontier. Even-
act done by the other power may be within its territory. Yet
the country threatened by the state of facts is justified in pro
tecting itself by immediate war.”
138. Cite historical instances when the right of existence

and self-defense was invoked to justify armed attack in the
absence of prior belligerent acts.
When Russia mobilized in 1914, Germany immediately

declared war against it on the ground of self-defense.
In 1807, Great Britain seized the Danish fleet in order to
prevent it from falling into the hands of the French, with
whom the British were at war.
Korea was invaded by Japan in 1904 to prevent Russia,
its enemy then, from taking over the country.
Russia, on the other hand, attacked Finland in 1939 as a
strategic measure to defend itself from an anticipated German
invasion. (Fenwick, 229-230).
139. What is meant by the balance of power? Discuss. *
Vattel described it as “ an arrangement of affairs so that

no state shall be in a position to have absolute mastery and
dominion over others.”
The Congress of Vienna of 1815, the Crimean War of
1854, the Congress of Berlin of 1878, the Triple Alliance and
the Triple Entente before World War I, and the groupings
between the Allied and Axis Powers during World War II were
all motivated by balance of power considerations and based on
the fundamental right of self-defense. There is now a “ balance
of terror” between the NATO and the Warsaw Pact states.
140. What is aggression? *
Aggression is 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
T 1 I K HK i HI o r K X I S T K N O K A NO SfXf-'-fjf'.ffcNftK 51
U.N. Charter. {R esolu tion o f the (ieneral A w em b ly, D ecem ber

II.
1 11. W h at sp ecific acts constitute aggression? *
The following are considered acts of aggression, whether

or not there is a declaration of war:
ia) v T h e invasion or attack by the armed forces of a state

o f the territory of another stateôr any military occupation,
however tem porary, resulting from such invasion or attack, or
any annexation by the use of force of the territory of another
^ state or part thereof;
r*
(b) ^/Bom bardm ent by the armed forces of a state against
the territory o f another state;
(c) OThe blockade o f the ports or coasts of a state by the
armed forces o f another state;
i
(d) v?\n attack by the armed forces of a state on the land,

^
sea or air forces, or marine and air fleet of another state;

i
(e) yThe use o f armed forces of one state which are within
i^
the territory o f another state with the agreement of the receiv

u O
ing state, in contravention of the conditions provided for in

the agreem ent or any extension of their presence in such ter
ritory beyond the termination of the agreement;
(f) v^he action of a state in allowing its territory, which it
has placed at the disposal of another state, to be used by that
other state for perpetrating an act of aggression against a
third state;
(g) The sending by or on behalf of a state of armed force
against another state o f such gravity as to amount to the acts
listed above, or its substantial involvem ent therein.
142. W'hat is intervention? Can it be justified on the

ground of self-defense?*
Intervention is an act by which a state interferes with the

dom estic or foreign affairs of another state through the use of
force or threat o f force.
BCFTWfLTBBSB?
LVTLKN'A'l'lON AL LA W KEV1EW1SK
As a matter of fact, self-defense is the only accepted justi

fication under present international law for intervention on the
part of part icular states. However, it may also be undertaken by
the Security Council for the maintenance of international peace
and security, as a measure against oppression, and on humani
tarian grounds.
143. Cite a contem porary exam ple o f intervention on the

ground of self-defense. *
?
In 1962, President John F. Kennedy, upon being informed

o f the establishment of Russian missile bases in Cuba, which is
only ninety miles away from the United States, declared a
“ quarantine” on all vessels bound for that country with
missiles equipment, announcing that such vessels would be
seized by American armed forces if they insisted, pn their
destination.
This action was taken as a measure o f self-defense in
asmuch as it was felt by the American governm ent that such
bases, if allowed to remain in Cuba, would be a menace to the
national security of the United States.
144. Does the United Nations Charter recognize the

right to existence and self-defense? *
Yes, in Article 51, which provides: vV
“ Nothing in the present Charter shall impair the inherent

right of individual or collective self-defense if an armed attack
occurs against a member of the United Nations, until the
Security Council has taken the measures necessary for the
maintenance of international peace and security, x x x .”
145. W hat are the conditions for the proper exercise of

the right of self-defense under the aforementioned provision of
the U.N. Charter? *
(1) There must be an armed attack.

(2) Self-defensive action taken by the attacked state
must be reported immediately to the Security Council.
THE RIGHT OF EXISTENCE AND SELF-DEFENSE 53
(3) Such action shall not in any way affect the right of
the Security Council to take at any time such action as it
deems necessary to maintain or restore international peace and
security.
146. Should Article 51 of the United Nations Charter be

interpreted as limiting the right of self-defense to “ a Member
of the United Nations” which may be subjected to armed at
tack? Explain.
While Article 51 may seem to suggest so, the proper inter

pretation is to recognize this right in every state, whether or
not a member of the United Nations, inasmuch as the right of
self-defense is inherent in every state and not dependent on the
consent of other states or on membership in any international
organization.
Chapter VIII
THE RIGHT OF INDEPENDENCE
147. What is meant by independence? *
It has been described variously as the right of national

self-government, the freedom of a state from control by
smother state, or the right of a state to direct both its internal
and external affairs without dictation or interference from
others.
148. Is independence synonymous with sovereignty? Ex

plain.
Strictly speaking, no. Sovereignty is the broader term in

sofar as it refers to the supreme and uncontrollable power in
herent in the state by which such state is governed. Thus
understood, sovereignty is considered to have two aspects, in
ternal and external
Internal sovereignty is the freedom of a state to manage
its domestic affairs. External sovereignty, or the freedom of
the state to direct its external or foreign affairs, is known also
as independence.
149. Does the United Nations Charter recognize the

right of independence?
Yes. In Article 2, par. 4, of the Charter, it is provided that

“ all Members shall refrain in their international relations from
the threat or use of force against the territorial integrity or
political independence of any state, or in any other manner in
consistent with the Purposes of the United Nations/'
Moreover, in the Declaration Regarding Non-Self-
Go veming Territories in Chapter XI, the members of the
United Nations assume in these territories the obligation “ to
develop self-government, to take due account of the political
aspirations of the peoples, and to assist them in the pro-
54
g m ss iv e d ev elop m en t o f their free political i/wtitutioms, &<>
c o rd in g to the particu lar circu m stan ces of each tenubory a rtf
its peop les and their v aryin g stages o f ad v a n ce m e n t/' '/L t ,
150. Can the in dependence o f a state be really absolute?

In oth er w ord s, can a state “ Jive its own life w ithout in
te r fe r e n c e from o th e rs?” E xplain.
No, for the simple reason, as Fenwick states, that in- x

dependence means only freedom from control by any other
state, not freedom from the 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 in
dependence of a state must be restricted by the requirements
of the international society.
Thus, a state, although independent, may not employ
force or even the threat of force in its relations with other
states, or refuse to observe treaties in good faith, or to share
with other states the peaceful use of the open seas, nor may it
reject certain rules that directly impair its freedom of action
such as those imposed upon neutrals with respect to
belligerent rights. Even within its own domain, the state is
limited by such rules as the maintenance of the international
standard of justice, the observance of basic human rights, and
the exemption from its jurisdiction of certain persons and pro
perty.
151. W h a t has been described as the correlative duty of

the right of independence?
E very state is under the correlative obligation of non

intervention in view of its own independence. Even as it ex
pects its independence to be respected by other states, so too
m ust it be prepared to respect their own independence.
152. M ention some international declarations against in

tervention.
(1) The United Nations Charter provides that nothing

contained therein shall authorize the organization “ to in-
tervene in matters which are essentially within the domestic

jurisdiction of anv state.’ *
(2) The U.N. Declaration of the Rights and Duties
o f States provides that “ every State has the duty to refrain
from intervention in the internal or external affairs of any
other State.”
(3) A similar provision appears in the M ontevideo Con*
vention of 1933.
(4) The Charter of the Organization of Am erican States •
provides that “ no State or group of States has the right to in
tervene, directly or indirectly, for any reason whatever,>inthe
internal or external affairs of any other State. The foregoing
principle prohibits not only armed force but also any other
form of interference or attempted threat against the personali
ty of the State or against its political, economic, and cultural
elements.”
(5) The Hague Convention of 1907 provides that “ the
Contracting Powers agree not to have ^ c o u r s e to armed force
for the recovery of contract debts claimed from the govern
ment of one country by the government of another country as
being due to its nationals.’ ’ This embodies what is popularly
known as the Drago doctrine.
153. What were the antecedents of the Drago doctrine? *
In 1902, Great Britain, Italy and Germany established a

blockade against Venezuela in order to enforce certain contrac
tual and other claims against it, leading Foreign Minister
Drago of Argentina to formulate the doctrine that “ a public
debt cannot give rise to the right of intervention. ’ \ .
This principle was later adopted in the Second Hague
Conference, but subject to the qualification that the debtor
state should not refuse or neglect to reply to an offer of arbitra
tion, or, after accepting the offer, prevent any compromis from
being agreed upon, or, after the arbitration, fail to submit to
the award. This qualification is known as the Porter resolution.
tun iuoiit o r iNorrKNnrNor t/i
154. Is ( ho above-slated qualified lion still valid a* an ex

ception to the rule against in ter veil lion?
It cannot be valid under the present rules of international

law because itvclashes with a fundamental principle of the
United Nations against the “ threat or use of force" in interna
tional relations.
Chapter IX <
TH E R IG H T OF E Q U A L IT Y
155. W hat do you understand by the right o f equality as

an attribute of states?
By this we mean that every state is entitled to the same

protection and respect as are available to other states under
the rules of international law. It does not mean parity in
the number of rights, as it is possible for one state to have
more rights than another; e.g., a coastal state would hav6
a right to a territorial sea as distinguished from a state com
pletely surrounded by land. What is important is that,
whatever the number of the rights of the state may be, all of
them are duly recognized and observed in the international
community.
156. Is the right of equality recognized by the United

Nations?
Yes. In Article 2 of its Charter, it is provided that “ the

Organization is based on the principle of the sovereign equali
ty of all its Members.” Accordingly, all members of the
General Assembly are given one vote in the decision of cases or
questions before that body and are generally speaking eligible
for positions in the various organs of the United Nations.
157. Mention some other international agreements in

which the right of equality is recognized.
(1) The Montevideo Convention of 1933 provides:

“ States are juridically equal, enjoy the same rights, and have
equal capacity in their exercise. The rights of each one do not
depend upon the power which it possesses to assure its exer
cise, but upon the simple fact of its existence as a person under
international law.”
(2) A similar declaration is made in the Charter of the
Organization of American States, which further states that
58
'* h i , f 'J M n oi
‘ T very Am erican 'Tate ba'j the duty to reepeoi too /;ght*, oo-
joy ed by other eta tea in accordance y/ith inie/oaUonal jay/T
(.'{) Uikewine, the U odaretion of Righto and Imtl&b
ol Staten, prepared by the International UaV Cornrnmion, con
tains a provision that “ every State has the right to equality in
law with every other S tate."
158. W ould you Bay that the right to equality is ab

solute? Explain.
Even from the viewpoint of legal rules, the right of equali

ty cannot be considered absolute. Under the United Nations
Charter, for example, non-procedural questions are decided by
the Security Council only with the concurrence of the Big Five,
any o f which may defeat a proposal through the exercise of the
“ v e t o /' This is true also with respect to amendments to the
Charter. M oreover, these same countries are entitled to perma
nent mem bership in the organ, in contrast with all the other
mem bers which are elected for a term of only two years and are
not eligible for immediate re-election.
W ith regard to the elective membership of the Security
Council, and also the additional members of the Economic and
Social Council, not all states have equal eligibility therefor, as
it is provided in the amendment to the Charter that such
members are to be distributed, and not equally at that, among
several specified regions. Thus, five members of the Security
Council m ust be elected from the African and Asian states.
Criticize the following statement of VatteL* “ A

dwarf is as much a man as a giant is; a small Republic is no
less a sovereign State than the most powerful Kingdom.”
It is valid insofar as it suggests that states, regardless of

size, are equal in the enjoyment of certain rights, such as the
right of discovery and occupation and the use of the open seas.
However, it does not take into account the realities of interna
tional life, including the greater stakes of the more populous
states in the decision of questions affecting the entire com
munity of nations.
60 INTERNATIONAL LAW R EVI EWE R
In the General Assembly, for example, all members have

one vote regardless of the people they separately represent,
with the result that the decision of China, with a population of
more than one billion, would have the same weight, legally
speaking, as that of the one million inhabitants of Gabon. This
is because the right to vote is granted the states as such and is
not based on their proportionate representation of the peoples
of the world.
Chapter X
T H E R IG H T OF TE RR ITOR Y
160. W h at are the components of the territory of a

state? *
The territory of a state usually consists of the terrestrial

^domain, the maritime and fluvial domain, and the aerial do-
main.
161. W h a t is the terrestrial domain?
This is the land mass on which the people live. It may be

in tegrate , as in the case of Iran, or dismembered, as in the case
of the United States, or may be partly bounded by water, like
Burma, or completely surrounded, like Iceland, or may consist
of several islands, like the Philippine archipelago.
162. W h a t is the maritime and fluvial domain?
This consists of the bodies of water within the land mass

and the waters adjacent to the coasts of a state to a specified
limit. Included in the maritime and fluvial domain are land
locked lakes, rivers, man-made canals, the waters in certain
gulfs, bays and straits, and the territorial sea.
163. W hat are internal waters?
Internal waters, also called national or inland, are those

found in the bodies of watdr within the land mass and the
waters in gulfs and bays up to the point where the territorial
waters begin.
164. W h at are boundary rivers? *
These are rivers which divide the territories of states, like

the St. Lawrence River between the United States and
Canada.
61
In the absence of a specific agreement between the

riparian states, the boundary line is laid on the middle of the
main navigable channel in accordance with th e thalweg doc-
trine .
165. W hat is a bay? W hat is the nature of the waters in

side a bay? Explain. *
*A bay is a well-marked indentation w hose penetration is

in such proportion to the w idth o f its m ou th as to contain land
locked waters and constitute m ore than a curvatu re o f the
coast.
An indentation shall not, however, be regarded as a bay
unless its area is as large as or larger than that o f a semi-circle
w hose diameter is a line drawn across the m ou th o f that inden
tation, or if the mouth is less than tw enty-four miles wide.
If the distance between the low -w ater m arks o f the
natural entrance points of a bay exceeds tw enty-four miles, a
closing line may be drawn between these tw o low -w ater marks
and the waters enclosed thereby will be considered internal
waters. (Convention on the Territorial Sea and the Contiguous
Zone, A pril 29, 1958, Art. 7).
166. W hat are the so-called historic bays?
These are bays whose waters are considered internal but

which should not have that character were it not for the ex
istence of a historic title. Exam ples are th e B ay o f Cancale in
France, the Bay of El-Arab in E gypt, and H udson Bay in
Canada. (Id.)
167. W hat are territorial waters?
These are the waters adjacent to the coasts of a state, ex

cluding the internal waters in bays and gulfs, which do not
form part of the open sea. This belt of sea is usually called the
territorial sea.
IH h K IM H Of 'f \\YYXSOhY
168. W h at is the breadth of the territorial sea? *
The traditional three-mile rule which used to be u.c.forrmy

observed in determ ining the limits of the territorial sea ras
fallen into disuse and since then, in the absence of interna
tional agreem ent, states have unilaterally fixer; the breacth of
their respective territorial waters. Thus, some states have
claim ed four miles, som e eight miles, some twelve miles and.
more extrem e in the case of Chile and Peru, as many as 200
miles.
H ow ever, u n der the new C onvention on the Law' of the

Sea w hich w as con clu ded in 1982 in Jam aica and becam e
e ffe ctiv e on N ov em b er 16, 1994, the breadth o f the territorial
sea for all states has been fixed at tw elve m iles'm easu red
from th e low -w a ter m ark o f the coast.
169. W h at are the methods generally employed in defin

ing the territorial sea? Explain. *
They are the normal baseline method and the straight

baseline method.
Under the normal baseline method^ the territorial „sea is
drawn from the low-water mark, of the_eoa£t (to the breadth
claimed) follow ing its sinuosities and curvatures but excluding
the internal waters in bays and gulfs.
Under the straight baseline method, straight lines are
made to connect appropriate points on the coast without
departing radically from its general direction. The waters in
side these lines are considered internal. (1<L, A r t 5).
170. W hen may the straight baseline method be

em ployed?
This method may be employed in localities where the

coastline is deeply indented or there is a fringe of islands along
the coast in its immediate vicinity.
ISThllNATIONAl, I,AW REVIEWER
In either case, accoun t may be taken, in determ in in g par

ticular baselines, of econom ic interests peculiar to the region
concerned, the reality and im portance o f w hich are evidenced
by long usage. IId ; A agio-N orw egian F ish eries C ase; I.C.J.
l { < ' p o r ts , /.%/, J If)).
IJI. W hat constitutes the national territory o f the

Philippines?”
A c c o r d in g to A r tic le I, S e c tio n 1, o f th e 1 9 8 7 C on
s t itu tio n :
The national territory comprises the Philippine archi

pelago, with all the islands and waters embraced therein, anfy
all the 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.
172. How do we define our internal waters?
We define our internal waters according to the ar

chipelago doctrine as embodied in the last sentence of the
above-cited provision.
The outermost points of our archipelago are connected
with baselines and all the waters com prised therein are re
garded as internal waters.
173. How do we define our territorial w aters?
Our territorial waters are defined according to what we

call the historic right or treaty limits theory^
According to this theory, all the non-internal waters
delineated by the latitudes and longitudes specified in Article
HI of the Treaty of Paris of Decem ber 10, 1898, between the
United States, are territorial in character. They have been so
THE KUR1T OK TKHIUTORY 65
regarded by the rest of the world since Spain claimed them an

such after its discovery of the Philippine Islands in Jf>21 and
such recognition has vested historic right in us as successor in
interest, to such territorial seas.
However, under the 1982 Convention on the Law of the
Sea, of which the Philippines is a signatory, the territorial sea
has a uniform breadth of 12 miles measured from the low-
water mark of the coast.
174. W hat is the position of the Philippines regarding

the extent of its territorial and internal waters? *
The Philippine position was embodied in R.A. No. 3046,

as amended by R.A. No. 5446. which declared that:
(1) All the waters within the limits set forth in the Trea
ty of Paris of December 10, 1898, between Spain and the 1
United States, the Treaty of Washington of November 7, 1900,
also between the two countries, and the Treaty concluded by
the United States and Great Britain on January 2, 1930, have
always been regarded as part of the territory of the Philip
pines. T
/ (2) All the waters around, between, and connecting the
various islands of the Philippine archipelago, irrespective of
their width or dimension, have always been considered as
necessary appurtenances of the land territory, forming part of
the inland or internal waters of the Philippines.
(3) All the waters beyond the outermost islands of the
archipelago but within the limits of the boundaries set forth in
the afore-mentioned treaties comprise the territorial sea of the
Philippines.
(4) The baselines from which the territorial sea of the
Philippines is determined consist of straight lines joining ap
propriate points of the outermost islands of the archipelago.
The definition of the baselines of the territorial sea of the
Philippine archipelago 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.
The 1982 Convention on the Law of the Sea accepted our
definition of internal waters according to the archipelago doc-
trim* but limited the territorial Bea for all states to twelve miles
from tb»r low water mark of the coast.
174a. What is the archipelago doctrin e?
The Philippine position on the definition o f its internal

waters is commonly known as the archipelago doctrine. This is
a / . J u ' / . / j in »j,<• ;,/*rorid sentence o f A rticle I o f the 1987
Constitution, which follows:
The waters around, between and connecting the islands of

t.h<* archipelago, regardless of their breadth and dimensions,
form part of the internal waters of the Philippines.
As defined, our national territory comprehends as many

as 7,100 islands of varying sizes connected by waters of diverse
dimensions. Our position is that all these islands should be
considered one integrated whole instead of being fragmented
into separate units each with its own territorial sea. Otherwise,
the waters outside each of these territorial seas will be regarded
as high seas and thus be open to all foreign vessels to the
prejudice of our economy and the national security.
An archipelago is a group of islands, including parts of
islands, interconnecting waters and other natural features which
are so closely interrelated that such islands, waters and other
natural features form an intrinsic geographical, economic and
political entity, or which historically have been regarded as
such.
Hence, in defining the internal waters of the archipelago,
straight baselines should be drawn to connect appropriate points
of the outermost islands without departing radically from the
general direction of the coastyfeo that the entire archipelago
shall be encompassed as one whole territory. The waters inside
these baselines shall be considered internal and thus not sub
ject to entry by foreign vessels without the consent of the local
state.
This theory is advocated by the Philippines, Indonesia, the
Mauritius, Fiji, and the Bahamas, all archipelagic states, and
has gained the support of the Organization for African Unity, a
number of Latin American states, Greece, Malta, Thailand, and
the People’s Republic of China.
Tho archipelago doctrine hurt boon ombodiod in the 1UW/
C on v en tion on tho Law o f tho Hon, with tho m odification that 'V '-h/
a rch ip elag ic aoalanoH ahull ho donignntod through which for r :v i '
:*r.
eign v essels ahull have tho right o f pannago. ^ ^
17.r>. VVliat is a strait? W hat is tho character o f the > v • '

. . ->■V u ’ fi* ■
waters in a strait? \ ^
* ^ V V i-
A strait is a coinparativoly narrow passageway con
necting tw o largo bodies of water.
W here the distance between the opposite coasts is not
more than tw o marine leagues, or six nautical miles, the waters
in the strait are considered territorial.
176. W h a t is the continental shelf? Is it part of the ter rf- y*<r. t/i'’ ■
ritory o f the coastal state? * i■-■y-t ":f
The continental shelf refers (a) to the seabed and subsoil

of the subm arine areas adjacent to the coast but outside the
area o f the territorial sea, to a depth of 200 meters or, beyond
that limit, to where the depth o f the superjacent waters admits W W i
of the exploitation of the natural resources of the said area; or -‘ t y .
(b) to the seabed and subsoil of similar submarine areas adja
cent to the coasts of islands.
Insofar as it extends beyond the limits of the territorial
sea, the continental shelf is not regarded as part of the ter
ritory o f the state, although the state exercises exclusive
sovereign rights for the purpose of exploring it and exploiting
its natural resources. (Convention on the Continental Shelf
A pril 29, 1958).
H owever, a grow ing number of states, including the
Philippines, now claim the continental shelf as part of their ter
ritory. Thus, we say in Article I, Section 1, of our Constitution
that our national^ territory includes, among others, “ the in
sular shelves."
177. W h at is the aerial domain?
The aerial domain is the airspace above the territorial do

main and the maritime and fluvial domain of the state/to the
limits of the atmosphere. This does not include outer space.
IN TERN AT IO N AL LAW REVIEWER
ITS. W h at are the modes of acquiring territory?
Territory may be acquired by:

11) D iscovery and occupation;
i2l Cession:
LT Conquest and subjugation;
U) Prescription; and
i5» Accretion.
179. Discuss discovery and occupation as a m ode ol

quiring territory.
This is an original mode of acquisition by which terrritory

not belonging to any state/:>r terra nullius, is placed under the
sovereignty of the claiming state. The territory need not be
uninhabited; it may still be subject to occupation if the in
habitants do not possess a sufficient degree of civilization as
tested by contemporary standards.
Thus, although the American continent was inhabited by
the Indians at the time of its discovery and occupation, they
were regarded as possessed only of the right of occupancy and
not of sovereignty over the territory because of their relatively
low culture vis-a-vis that of the European explorers.
180. Are outer space and the open sea subject to

discovery and occupation? *
No, because they are res communes and belong to all

mankind. A s such, they are outside the com m erce of man and
cannot be the object of any mode of acquisition.
181. W hat are the requisites o f an effective discovery

and occupation? *
The nationals of the discovering state, in its name or by

its authority, must first take possession of the territory.
Thereafter, they must establish thereon an organization or
government capable of making its laws respected.
In short, there must be possession and administration of
the territory.
I ' WK K UU IT OK T K U K U ' O U V 09
182. W h a t is m o u n t b y il\ e " i n c h o a t e title o f d is c o v e r y ” ?

E x p la in . *
\\ hero a s t a t e d is c o v e r s te rrito ry but. d o e s not ta k e s t e p s
to a c tu a lly a d m in is te r it. th e righ t a c q u ir e d is m erely an in
c h o a te title o f d is c o v e r y . T h is w ill ripen in to a fu ll a n d v a lid t i
tle o n ly if th e r e q u is ite s o f a v a lid d is c o v e r y a n d o c c u p a t io n are
c o m p lie d w ith : a n d in th e m e a n tim e it w ill s e r v e as a b a r t o
o th e r s t a t e s a ls o in te r e s t e d in th e te r r ito r y .
I f a d m in is t r a t io n is n o t u n d e r ta k e n w ith in a r e a s o n a b le
tim e, th e in c h o a t e title o f d is c o v e r y is lo s t o r fo r fe ite d .
183. Title to the Island of Palmas was disputed between

the United States and the Netherlands. The former claimed by
virtue i n t e r a l i a of a valid cession from Spain, which in turn
had based its right on discovery and occupation. The latter, on
the other hand, had been exercising rights of sovereignty over
the island since the eighteenth century and when the alleged
cession was made on December 10, 1898. How would you
decide? *
W h ile it w a s true th a t Spain had originally cla im ed th e

island b y rig h t of disco very and occupation, it h ad n o t,
how ever, fo llow ed up th is claim w ith a d isp la y of a u th o rity
over the territo ry , w h ereas the N eth erlan d s h ad been e x e r c is
in g a c ts o f so v e r e ig n ty over it since the m id d le of th e e ig h
teen th c e n tu ry w ith o u t a n y p r o te s t fro m S p a in .
Spain, in other words, had failed to ripen its inchoate title
of discovery b y undertaking the adm inistration of the ter
ritory. A s o f D ecem ber 10, 1898, therefore, the island could b e
considered as belon g in g to the N etherlands and not to Spain,
which con seq u en tly had no right to cede it to the U n ite d
S ta te s. (Isla n d o f P alm as Case, 2 U .N . R e p . o f In t. A r b .
A w a r d s , 831).
184. I s th e rule ann oun ced in th e Is la n d o f P a lm a s case

abso lu te? E x p la in .
N o . I n th e Clipperton Island Case, F r a n c e p r o c la im e d

so v e re ig n ty o v er an isla n d in 1 8 5 8 b u t u n til 1 8 8 7 exercised no
p ositiv e or apparent act o f sovereign ty over it. W hen M exico

later claim ed the territory in 1897, the arbitrator, while
recogn izin g that possession and adm inistration are generally
required for an effectiv e discovery and occu pation , never
theless held th a t—
l f territory, by virtue of the fact that it was completely

uninhabited is, from the first moment when the occupying
State makes its appearance there, at the absolute and un
disputed disposition of that State, from that moment the tak
ing of possession must be considered as accomplished, and the
occupation is thereby completed. (26A.J.I.L. 390/1932).
185. W h at is dereliction? W h at is its effect?
It is the physical withdrawal by a state from territory

w ith the intention of relinquishing or abandoning all legal
claim s over it. The effect of dereliction is to make the territory
terra nullius and, therefore, su bject again to occupation by
other states.
186. W hat is cession?
Cession is a derivative mode of acquisition by w hich ter

ritory belonging to one state is transferred to the sovereignty
o f another state in accordance with an agreement between
them. ,
A n example is the cession of. the Philippine Islands by
Spain to the United States by virtue of the Treaty of Paris of
D ecem ber 10, 1898. This was a partial cession.
A nother example is the cession of Korea to Japan under a
treaty concluded between them on A u gust 22, 1910. This ces
sion was total and caused the extinction o f Korea as a state.
187. W hat is subjugation?
It is a derivative mode of acquisition by which the ter

ritory of one state is conquered in the course of war and is
thereafter annexed io and placed under the sovereignty of the
conquering stated
Ar. iXvi.v.p.t' ;s the annexation of Abyssinia (now Ethiopia)
b\ L;uly in
1SS. W h a t is prescription?
P rescrip tion is a derivative mode of acquisition by which

territory b elon g in g to one state is transferred to the sovereign
ty of an oth er state b y reason of the adverse and uninterrupted
p ossession th ereof by the latter for a sufficiently long period of
time. T h ere is no fixed rule in international law as to how long
the territory m ust be held by the state to be able to claim
p rescriptive title.
189. W h a t is accretion?
It is a m ode o f adding to the territory of a state by natural

process, such as the gradual deposit of soil on the coast
through the action of the water, or by human labor, as ex
em plified b y the reclam ation projects on Manila Bay and the
p old ers o f th e N etherlands.
Chapter X I
TH E R IG H T OF J U R IS D IC T IO N
190. Define jurisdiction. *
Jurisdiction is the authority exercised by a state over per

sons and things within or outside its territory, subject to cer
tain exceptions.
191. W hat are the kinds of jurisdiction?
Jurisdiction is either personal or territorial
192 What is personal jurisdiction? Discuss its basis and

extent.
Personal jurisdiction is the power exercisable by a state

over its nationals. It is based on the theory that a national is
entitled to the protection of his state wherever he may^ be and
is therefore bound to it by a duty of obedience and allegiance.
This duty follows him even when he is outside the territory of
his state.
193. Give examples of the assertion by the Republic of

the Philippines of its personal jurisdiction.
Article 15 of the Civil Code provides that “ laws relating

to family rights and duties, or to the status, condition and
legal capacity of persons are binding upon citizens of the
Philippines, even though living abroad. ' ’
Article 2 of the Revised Penal Code punishes certain of
fenses even if committed outside Philippine territory, in
cluding those against the national security and the law of na
tions as well as those committed by public officers and
employees of the Republic in the discharge of their functions.
The Internal Revenue Code subjects to tax even non
resident Filipinos on all their income, including those earned
abroad.
194. W hat is territorial juriNtUetioit? IHnciinm Iin bnwU
It is the auth ority ot a state, hast'd on its riovoruignty and

the right ot domain* which it exercises over persons and pro
perty w ithin its boundaries.
195. W h a t is the ex ten t o f the territorial jurisdiction o f a

state?
Generally speaking, we may say that the authority of a

state is co-extensive with its territory, that is, it extends over
its terrestrial domain, its maritime and fluvial domain, and its
aerial domain. However, there are several significant excep
tions to this principle.
196. H ow would you describe the jurisdiction of the

state over its land domain?
This jurisdiction is exclusive in the sense that no act or

process can take effect within the land domain without the con
sent of the territorial sovereign. If, for example, a fugitive
from a foreign state is arrested here by its own law-
enforcement authorities without our permission, the Philip
pines will have a right to protest against this breach of our
territorial integrity.
'i
197. W h a t is the extent of a state's jurisdiction over its
internal waters, like its rivers and lakes?
Such waters are assimilated to land territory and jurisdic

tion over them is the same as jurisdiction over the land do
main.
198. W h a t is the jurisdiction of a state over foreign

vessels within its territorial waters? *
Over foreign public vessels, the local state exercises

neither civil nor criminal jurisdiction/provided they are not
engaged in priy^te business.
O ver foreign private or merchant vessels, the local state

exercises full civil jurisdiction. Criminal jurisdiction may or
may not be asserted in accordance with the English or French
rule.
199. Compare the English and French rules on criminal

jurisdiction over merchant vessels in a foreign port. *
Under the English rule, the local state assumes jurisdic

tion over all offenses com m itted on board foreign merchant
vessels within its ports, except only those o f a petty nature or
affecting the discipline of the ship: This rule stresses the ter
ritorial principle of criminal jurisdiction.
Under the French rule, the flag state has jurisdiction over
all offenses committed on board its merchant vessels unless
such crimes are of such a grave nature as to com prom ise the
peace of the foreign port in which it may be anchored. This rule
stresses the nationality principle.
In effect, both rules give the local state jurisdiction over
the offense if it is so serious as to disturb the peace o f the ter
ritorial sovereign but leaves to the flag state the trial of all
other crimes committed on board the vessel.
200. Assum ing that there is a difference between the

tw o rules, which rule is observed in our jurisdiction? *
In People v. W ong Cheng, 46 Phil. 729, the Supreme

Court held that the English rule is observed in this jurisdic
tion. Thus, mere possession of opium aboard a foreign mer
chant vessel in transit over our territorial waters is not
punishable here because it does not disturb the public order.
But sm oking the narcotic on board such vessel, or unloading
and landing it, is triable in our jurisdiction as such acts will
cause the drug to produce its pernicious effects in our country.
201. W hat is the extent of a state’ s jurisdiction over its

territorial sea?
Subject to certain exceptions, its jurisdiction is co
extensive with the territorial sea, to its maximum breadth.
THE RIGHT OF JURISDICTION 75
202. W hat is the contiguous zone? *
This refers to the waters beyond the territorial sea but

not in excess of twelve miles from the outer limits of the
territorial sea over which the coastal state exercises a protective
jurisdiction to prevent the punish infringements ofjits customs,
fiscal, immigration or sanitary regulations. (1982 ~Convention
on the Law of the Sea).
203. W hat is the patrimonial sea or economic zone?
It is that expanse of sea extending two hundred nautical

miles from the coast or baselines of the state over which it
asserts exclusive jurisdiction and ownership over all living and
non-living resources found therein. {Ibid.)
204. Does the state exercise any jurisdiction over the

continental shelf? Explain.
The coastal state has the sovereign right to explore the

continental shelf and may erect on it such installations and
equipment as may be necessary for the exploitation of the
natural resources therein. This right does not affect the nature
of the superjacent waters as open seas and their use as such by
other states should not be impaired or disturbed. Immediately
above the installations, however, the coastal state may
establish on the open sea a safety zone with a radius of 500
meters over which it may exercise jurisdiction. (Convention on
the Continental Shelf, supra).
205. What is the extent of the state’s jurisdiction over

the aerial domain?
The consensus is that the subjacent state has jurisdiction

over the air space above it to the upward limits of the at
mosphere/ Hence, no foreign aircraft, civil or military, may
passthrough the aerial domain of a state without its consent.
IK n'r.'Al, I.A\A HKVIKWKK
^ o n h , f, ttff ittihtrt/iHnfinl f u/il A viution signed at Chicago,

/ Itrf.il
/J*< 7 / i,« i t*r* ♦!** r wiled f *ve air freedom s?
Cf I t.t. \/t fly across foreign territory without
*'h 1 1,*> ittuiAtfth to land for non-traffic purposes.

*'h 7 r,/> Utn/Ufftt io put down traffic originating in the
***** of *m .»;
M, '| to embark traffic destined for the state
of »m . a,/ / , ftff
% I \,t, to embark traffic destined for, or to put
o o so, *r*»ftp f ,,ff,)npr Utyttk, a third state.
Is outer space subject to the jurisdiction o f any

fcUUO
toe open sea, outer space, or the region beyond the

fcw/tr/s a ionosphere, is not subject to the jurisdiction o f any
***** ( space and other celestial bodies are not suscepti
ble of rwtptntfi appropriation/ However, astronauts and their
ss bob tea a///! sh ip m en t, while in outer space, remain under
lb*-* p o ’/vh/>y//n of the state that sent them. (T reaty on Prin-
nfilai) Oouernlng A ctivities o f States in the E xploration and
Hue nf tprfvr Space, Including the M oon and O ther Celestial
Hodlttfy /00’/'/
*
/H'\ W h«t are the limitations on the exercise o f jurisdic
tion by l, slots over persons and property within its territory?
plain *
V/h/Mn Ha *rtm territory, a state may not exercise jurisdic

tion over
111 Hoftdgn states# heads of states, diplom atic represen-
b'V/<*s, ahd w/ti$uis to a certain degree.
!•oisign States and heads thereof are exempt because of
f,b^ eo'/sf sign stpodlby of states and on the theory that a con-
i/to y >ols non Id unduly '*vex the peace of nations/’ Diplomats
and 'oosnla so joy the exemption in order that they may have
foil trtM4)om )ft i t £ discharge of their official functions.
niK K u m r o r j u h i s d k t i o n 77
Foreign state property, including embassies, con

sulates. and public vessels engaged in non-commercial ac
tivities.
By fiction of law, these are regarded as extensions of the
territory of the foreign state.
13) A cts of state.
A s explained in Underhill v. Hernandez, supra, ‘ 'Every
sovereign state is bound to respect the independence of every
other sovereign state, and the courts of one country will not sit
in judgm ent on the acts of the government of another, done
within its own territory. Redress of grievances by reason of
such act must be obtained through the means open to be
availed of by sovereign powers as between themselves.”
(4) Foreign merchant vessels exercising the rights of in
nocent passage or arrival under strbss.
v /In n ocen t passage means navigation through the ter
ritorial sea of a state for the purpose of traversing that sea
.-without entering internal waters, or of proceeding to internal
waters, or of making for the high seas from internal waters, as
long as it is not prejudicial to thetpeace,vgbod order onêcurity
of the coastal state.
Arrival under stress or involuntary entrance may be due
to lack of provisions, unseaworthiness of the vessel, inclement
weather, or other force majeure, like pursuit by pirates.
(5) Foreign armies passing through or stationed in its
territory with its permission.
A s held in The Schooner Exchange v. McFaddon, 7
Cranch 116, “ . . . without any express declaration waiving
jurisdiction over the army to which this right of passage has
been granted, the sovereign who would attempt to exercise it
would certainly be considered as violating his faith. B y exercis
ing it, the purpose for which the free passage was granted
would be defeated, and a portion of the military force of a
foreign independent nation would be diverted from those na
tional objects and duties to which it was applicable, and would
be withdrawn from the control of the sovereign whose power
and whose safety might greatly depend on retaining the ex
clusive command and disposition of this force.”
YH imi:i<f|.vrn»ll lh I MV
(ti) N iir lio lltii | m'i >ii tin i ui p m piiH y, Im lutUuit, <n I'tWiMI
IlmiH llUt) I III) lllllll'.ll I IMI INIIII, 0^01 ivllll ll II llfft'/f h ‘/
iiu m i I , waive |ui ihilii I inn
KHamplus nl such uginemuntH iin; Mm < ’ouvom Mom on Mm

I 'i iv lieges nnil 111 null nil inn nl Min 11hMinil I I ill I ons, Min *jdnVgh
I inn mi Mm Mi iv lieges nnil I n nun nil lug nl' t 1pur jail/,ml A gem
nnil Mm I I I ' MM liases T m a ly , which modified Mm * nstom m y
ohempl miih niiilui (h), above,
I low nmy u slain mMcml IIM jurisdiction beyond Its

territorial hniiudaricsV IU plain "
A stale limy extend Its |ili Isdh I Inn beyond II,s bonm
dm ms:
(1) Through assertion nl Its poitmnal l j<m over
its nationals shroud. [tUie n.i/ilmi ut inn mul ei IJutuMnn No. I M2).
(2) lly virtue nl its lelaUmis w llli ntlmt steles or ter
ritories, ah wlmn it establishes a i nlnnlal pi n| m l m a I a, ni a i;ou-
dominium, nr administers a Must ten lim y , >u m Copies nneniy
territory in Minn nl war,
(II) A h a cniism|uuure nl thn waiver nl |ni isdh I inn I»y the
local state over persons and things w llliln Its tm iito ry , il
lustrated by Mm foreign annv stationed iheieiii which is still
under l lm jurisdiction of Mm state Mini seel It,
(4) Through acpuisitinn nl’ ex 11 aim i II ui ial rig h ts This
practice has become discredited, hnwevei, Imnanan nl the rise
of nationalism and thn doctrine nl llm snveieign eijitfdity nl
staLes,
In this connection, e x l e n i f f o f t d n v diHers bom e\ ! i n t e r
l i t o r i u l i l y in that thn former refers tn l lm exuniptlnn nl |mi sons
and thiVigs from thn local jurisdiction on 1,1m liasls ol interna-
tional custom wlmrnaH tlm latter applies only In parsons and is
based on a treaty or convention.
(5) Through tlm uHnrciau nl cm tain lig h ts on thn npnn
sea, specifically; (a) over its own vessels, Including a lr n a ft
when flying over the open sea; (h) nvm plialeSi (c) under the
doctri ne of hoi [ ninmll, by virtue nl which Its public vessels, in
cluding aircraft, may continue tn pursue and appiabend on the
■v. THE RIGHT OF JURISDICTION 79
open sea any foreign merchant vessel which has violated its
laws, provided the pursuit is commenced while the offending
vessel is within the marginal waters or the contiguous zone of
the coastal state and such pursuit is uninterrupted; and (d) as a
belligerent in time of war, to visit and search neutral merchant
vessels. (Convention on the High Seas, signed A p ril28,1958).
(6) Through the exercise of its power to punish certain
offenses against its national interests, such as those affecting
its security or the integrity of its currency, even if the of
fenders are aliens.
210. W hat are the generally recognized principles of

criminal jurisdiction?
According to Harvard Research, they are the:

(1) Territorial principle, which vests jurisdiction in the
state where the offense was committed;
(2) Nationality principle, which vests jurisdiction in the
staê of the offendep^
Protective principle, which vests jurisdiction in the
state whose national interest is injured, as in the case of
counterfeiting, treason or espionage;
(4) Universality principle, which vests jurisdiction in
the state which has custody of the offender, as in the case of
piracy; and
(5) âssiVe personality principle, which vests jurisdic
tion in the state of the offended party.
211. What is meant by the “ objective territorial jurisdic

tion” ? *
The widely-accepted illustration is that of a man who fires

a shot in State A and kills somebody in State B just across the
border. State B would have the objective territorial jurisdic
tion because the shot took effect within its territory.
212. The Lotus, a French steamer, and the Boz-kourt, a

Turkish vessel, collided on the Aegean Sea, outside territorial
so IN TKKN A T IO N A L LAW H L V I L W L K
w aters, resulting in the sinking of the latter whip arid the death
of several Turkish nationals. T h e L o tu s, docked at Core
stan tin ople, where its officer of the watch a t the tim e of the ac
cident, a French national, was su b seq u en tly con victed of
m an slau gh ter by the Turkish courts. France p ro tested on the
ground, am ong others, that the m atter was o u tside the
jurisdiction o f Turkey inasm uch as the collision had taken
place on the open sea. W a s this contention upheld? E x p la in .*
^ “ The offense for which Lieutenant Dem ons appears to

have been prosecuted was an act— of negligence or
imprudence— having its origin on board the L otus, whilst its
effects made themselves felt on board the B oz-kourt. These
f
S elements are, legally, entirely inseparable, so much so that
c their separation renders the offense non-existent. Neither the
k
m exclusive jurisdiction of each of the occurrences which took
m place on the respective ships would appear calculated to
c
C satisfy the requirements of justice and effectively to protect
the interests of the two States. It is only natural that each
C
► should be able to exercise jurisdiction and to do so in respect of
r
r the incident as a whole. It is, therefore, a case of concurrent
r jurisdiction.” {The Lotus, P.I.C.J., Ser. A., No. 10, 1927, Hud
i
son, World Ct. R. 20).
213. Is the doctrine announced in the Lotus Case still

valid? *
According to the Convention on the H igh Seas signed at

Geneva in 1958:
“ In the event of a collision or of any other incident of

navigation concerning a ship on the high seas, involving the
penal or disciplinary responsibility of the master or of any
other person in the service of the ship, no penal or disciplinary
proceeding may be instituted against such persons except
before the judicial or administrative authorities either of the
flag state or of the state of which such person is a national. ”
THE RIGHT OF LEGATION
214. What is the right of Legation? *
It is the right of a state to maintain diplomatic reiaiioms

with other states. The right to send diplomatic representatives
is known as the active right of legation. The right to receive
diplomatic representatives is known as the passive right dt
legation.
215. Strictly speaking, is a state obliged to maintain

diplomatic relations with other states?
No, as the right of legation is purely consensual If it

wants to, a state may shut itself from the rest of the world, as
Japan did until the close of the nineteenth century. However, a
policy of isolation would hinder the progress of a state since it
would be denying itself the many benefits available from
membership in the international community.
216. W ho are the usual agents of diplomatic intercourse?
The diplomatic relations of a state are usually conducted

through:
(1) The head of state:
(2) The foreign secretary or minister, or
(3) The members of the diplomatic service.
Sometimes the state may appoint special diplomatic
agents charged with either political or ceremonial duties, such
as the negotiation of a treaty or attendance at a state function
like a coronation or a funeraL
217. A t present, does the head of state normally under

take diplomatic negotiation? W hy?
There was a time when diplomatic negotiations were nor

mally undertaken directly by the head of state, but the prac-
M2 IN'I KIlNATIONAL law HhVli/// hf'
Lin* has fallen into disuse axcjqjt upon rare <Wtihihu*-*,

when the matter under consideraLion ifi of such significance 0/
delicacy as to warrant no less than v/hat js known as a ‘ ‘sum'
mil meeting.”
The conduct ol foreign affairs is now generally entrusted
lo (he foreign secretary or minister who, under the control of
the head of state, has administrative powers over the
diplomatic service and is authorized to speak on behalf of the
state.
218. How are the regular diplom atic representatives

classified? *
According to the Convention on D iplom atic Relations,

which was signed at Vienna on A pril 18, 1961, diplom atic
representatives, as heads o f missions, are divided in to three
classes, namely:
(1) Am bassadors or nuncios accredited to heads o f state.
(2) Envoys, ministers and internuncios accredited to
heads of state.
(3) Charges d'affaires accredited to m inisters for foreign
affairs.
219. Is there any particular reason fo r the classification

of diplomatic representatives? Explain.
There was in earlier times, because direct com m unication

with the head of state depended then on the rank o f the
diplomat and only the more powerful states were privileged to
send diplomats of the highest rank.
However, the right of the diplom atic representative to an
audience with the head of state is no longer considered signifi
cant inasmuch as diplomatic matters are now usually dis
cussed with the foreign secretary, regardless of the dip lom at’s
rank. Moreover, even the smallest and weakest states may
now send diplomatic representatives of the highest rank.
TUK RIGHT OK LOCATION 83
220. W hat is the diplomatic corps?
The diplomatic corps consists of the different diplomatic

representatives who have been accredited to the local or receiv
ing state. It is headed by a SdênTdu corps or dean, who is y \
usually the member of the highest rank and the longest service
in the state. In Catholic countries, the dean is the Papal Nun
cio.
221. How is a diplomatic representative chosen?
The appointment of diplomats 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. Indeed, there
have been cases when duly accredited diplomatic represen
tatives have been rejected, resulting in strained relations
between the sending and receiving states.
To avoid such awkward situations, most states now
observe the practice of the agreation, by means of which in
quiries are addressed to the receiving state regarding a pro
posed diplomatic representative of the sending state. It is only
when the receiving state manifests its agrement or consent
that the diplomatic representative is appointed and formally
accredited.
222. When does the diplomatic mission commence? ✓
The head of the mission is deemed to have taken up his

functions in the receiving state either when he has presented ^
his credentials or when he has notified his arrival and a true f
copy of his credentials has been presented to the government
of the receiving state. (Convention on Diplomatic Relations,
supra, A r t 13).
223. What are the usual documents carried by a

diplomatic representative?
(1) The letter of credence, or lettre de creance, by virtue

of which he is accredited to the receiving state with the request
11 11 n' l ' H 11 VI l O h A I . I//SW IM-yVlIvW^M
I hoi lull loll h miitI « 1 odll ,1m*gi von to bis official acts.
I'd 11 hi *U|»l«miinf l« paaspoi t/;
\'M I Iil ol 11•1111 ImmI MH I i<HIC|
III Tho «ipi um 01 i oilo hoolv, Ior use jn endin g ?*ecret
i oiimiimli ill loiifi
* 'l Wind mio llo hnnlions of « diplomatic represeri*

l ullvo? *
Tho hnn Iions ol mdiplomatic minion consist inter alia in:

(\) Knpi oannl log tin* sending state in the receiving
ni ni o
(V!) I'mloi l ing in tlm lecelving state the interests of the
wooding mIm<o mul il s nstionsls,
[A) INego! isting with the government of the receiving
si ale,
( l) A scmi laining by all lawful means conditions and
dovolopmenls In (lie receiving state and reporting thereon to
Iho govoi mnonl ol the sending state.
(h) Ihomoling friendly relations between the sending
and loooiving slates and developing their economic, cultural
o\nd scion! il lc ielutions. (/</„ A vlt .7),
(d) In sumo esses, representing friendly governments at
Ihoir i opuosl.
?'!IV Wind is Urn jiisUficiitioii for the immunities and

privileges enjoyed hy the diplomatic representative?
The traditional justification was the fiction of exter-

riloilalil y, which held that the diplomatic representative and
his suite, logofhoi with his residence and offices, were legally
on(sldo Min )111'ladletinn ol the receiving state.
This l.hoory Ims boon discredited, however, and has
yielded lo Iho mndoMi view that such immunities and privi-
logos <nnstil ulo only tin exemption from the local law based on
l ho uooosfilI y ol sooiii'lug to tho diplomat tiie fullest freedom in
Iho porloi ms iion ol Ills oil Ida I functions.
//J» W li.il, tui- eo m e o f tbe more im p o r t a n t o f th e se
,l,|,!oini»tir iin m u n it jw ; a n d privilege**? 54
A/norjf/ the more irnpor fnnt are the folioy/ing:

(I) '1 he per eon of o diplom atic agent shall bo inviolable
;jnd h<* aha 11 not be liable to any form of arrest or detention.
'I he receiving eta to ehall treat birr; y/ith due respect and shall
take all appropriate steps to prevent any attack on his person,
freedom or dignity. (fd., A rt. 2!)).
{/) A diplom atic agent shall enjoy immunity from the
criminal, civil and administrative jurisdiction of the receiving
state, except in certain cases as, for example, when the civil ac
tion deals with property held by him in a private or proprietary
cai>acity. ( / d., A r t 31).
(b) The diplomatic premises shall be inviolable, and the
agents of the receiving state may not enter them without the
consent of the head of mission. Such premises, their fur
nishings and other property thereon and the means of
transport of the mission shall be immune from search, requisi
tion, attachm ent or execution. {Id., Art. 22).
(4) The archives and documents of the mission shall be
inviolable at any time and wherever they may be. (Id., A r t 24).
(b) The receiving state shall permit and protect free
communication on the part of the mission for all official pur
poses. In communicating with the government and other mis
sions, and consulates of the sending state wherever situated,
the mission may employ all appropriate means, including
diplomatic couriers and messages in code or cipher. The official
correspondence of the mission shall be inviolable. (Id., A rt. 27).
(b) Subject to its laws and regulations concerning na
tional security, the receiving state shall insure to all members
of the mission freedom of movement and travel in its territory.
(Id., Art. 26).
(7) A diplomatic agent is not obliged to give evidence as
a witness. (Id., A rt. 31).
(8) A diplomatic agent shall be exempt from all dues and
faxes, personal or real, national, regional, or municipal, except
i.avv hi; vii : v\
Sfi i \ n ; i ( N \ tm )VA1,
m ivrt ,tm sI,(,-.tu,l i-as.% like th e imposition of indirect taxes.

/ i. A r t . 7 / 1.
Tin*
Th, m.-s,....... . ft. u“ ' " ¥ »
» ! » ! . ' « a * p > « r ? 01 th'
li
i; - -ion. including t residence
tin* I ,nci. nf t he iu
oi mu head
,ch of the mission, and
n Li ^ rnit i i k nf tru K im rl il(l.. Aft- 20).
227. W ho mnj waive the diplomatic immunities and

pri\ ileges? *
The waiver may be made expressly by the sending state,

li may also be done impliedly, as when the person entitled to
the immunity from jurisdiction commences litigation in the
local courts and thereby opens himself to any counterclaim
directly connected with the principal claim.
•
However, waiver of immunity from jurisdiction in respect

i m ii
of civil or administrative proceedings shall not be held to imply

waiver of the immunity in respect of the execution o f the judg
ment, for which a separate waiver shall be necessary. (Id, Art.
titn tT ifi
32).
228. What is the duration of the diplomatic immunities

and privileges? * i
Unless waived, diplomatic immunities and privileges

begin from the moment the diplomatic agent arrives in the ter
ritory of the receiving state or, if already there, from the mo
ment his appointment is notified to its government, and lasts
until he leaves, which must be within a reasonable period
following the termination of his mission.
With respect to his official acts, however, his immunity
from the jurisdiction of the receiving state continues inde
finitely as these acts are attributed not to him but to the send
ing state. But this rule does not apply to his private acts, for
which he may later be sued or prosecuted should he return’in a
private capacity to the receiving state or fail to leave it in due I
time after the end of his mission. (Id, Art. 30). i*
i
I
1
THK RI(i l IT OF LFOATION 87
225). W h o else besides Lite head o f the mission are enti

tled to d ip lom a tic im m unities and privileges?*
The dip lom atic im munities and privileges are also en
joyed by the diploma tic suite or retinue, which conisists o f the
official and unofficial staffs o f the mission.
The official staff is made up of the adm inistrative and
technical personnel of the mission, including those perform ing
clerical work, and the mem ber o f their respective families. The
unofficial staff is com posed o f the household help, such as
dom estic servants, butlers, cooks, and chauffeurs em ployed by
the mission.
A s a rule, however, dom estic servants en joy immunities
and privileges only to the extent admitted by the receiving
state and insofar as they are connected with the perform ance
of their duties. (Id., Art. 37).
230. D o we have any law governing the immunity o f

members o f the diplom atic suite from the local jurisdiction? *
Yes. Under R .A . No. 75, it is provided that immunity

from judicial writ or process shall not be granted to: (a) citizens
or inhabitants o f the Philippines in the service of a foreign am
bassador or public minister, where the process is founded upon
a debt contracted before they have entered into such service;
and (b) dom estic servants of an ambassador or minister, unless
their names have been registered with the Department of
Foreign A ffairs before the issuance of the process and
transmitted by the Department to the Manila Police Depart
ment.
231. H ow is a diplom atic mission terminated? *
A diplom atic mission may come to an end by any of the

usual m ethods of terminating official relations, like death,
resignation, removal, accomplishment of the purpose, and
abolition of the office. These are governed by municipal law.
Under international law, the more important modes are recall
and dismissal.
i; , ,}] M ||\ |t, d rill lilt It ll b v t hi* MI'I'IVIMK Mhd<‘ wh I'll (Iw
l,,.i > J 4^loirMl b*vom» ♦ /HtutH'i mm grata to it for liny
i » t * i U h c t h»» dt’iiu n d lr e je c t e d by t hr w n ih n i' nhiir, the
\ > i . i l r n u \ renort In the more d riiH tir method of
d n In m< <tn < of which the offending d ip lo m a t in sum
[ »t !\ pr« . nlcd w ith hi* passport and asked to leave the
hi» ,*ut break of w ar between the sending and receiving

,i,rrr . u r.nm ate" their diplom atic relations, which are usually
s, \ ,' h a I U tore the actual commencement of h ostilities. f£xUnc
tion of either the sending or the receiving s ta te w ill also
autom atically term inate diplom atic relations between them.
In ease of a change of government by violence, d ip lo m a tic rela-
t ions are as a rule only suspended u ntil the new govern m en t is
rtfo g n i/e d by the other state.
232. W ill the termination of diplomatic relations also

terminate consular relations between the sending and receiv
ing states? *
\o. because consular relations rest on a different basis.

Consuls are not diplomatic representatives but only commer
cial agents of the sending state.
233. Briefly discuss the development of the institution

of consuls.
The institution of consuls dates back to as far back as six

centuries before Christ, when the Egyptians allowed the
Greeks at Naucratis to choose from am ong themselves a
magistrate who would apply to them the laws of their own
country. Later, the Greeks started sending to foreign jurisdic
tions their own protectors or prostrates (proxen oi), a practice
modified by the Romans with their appointment o f the praetor
peregrinus, who interpreted the law between foreigners or
between Romans and foreigners. Following the conquest of
Rome, the Visigoths established a foreigner’s court, presided
by telunarii, which applied to foreigners their own national
laws rather than the law of the territorial sovereign. Similar
THE RIGHT OF LEGATION 89
courts were created by the Chinese in the eighth century and

by the A rabs in the ninth century.
W ith the development of commerce in the Mediterranean
cities and the Near East, numerous treaties of capitulation, as
they were called, exempted European nationals from the local
jurisdiction and made them triable by their own consuls ac
cording to their national laws. Eventually, in view of their
growing importance, consuls acquired official character when
they were commissioned directly by their own governments in
stead of only by their countrymen.
The rise in nationalism and the concept of sovereignty,
however, gradually decreased the power of the consuls until
they retained only the authority to act on commercial and
related matters. Nevertheless, the continuing expansion of in
ternational commerce, coupled with the improvement of
transportation and communication in the seventeenth and
eighteenth centuries, led to the further growth of consular ser
vices.
A t present, consular activities are governed by a vast net
work of bilateral agreements and by the Convention on Con
sular Relations signed at Vienna on April 24,1963.
234. W hat are the kinds of consuls? *
They are the consules missi and the consules electi.

The first are professional or career consuls who are na
tionals of the sending state and are required to devote their full
time to the discharge of their duties.
The second may or may not be nationals of the sending
state and perform their consular functions only in addition to
their regular callings.
235. W hat are the grades or ranks of consuls? *
According to Article 9 of the Convention on Consular

Relations, supra, they are:
(1) Consul-general;
(2) Consul;
\>0 N II !(N NTH ' N A I , L A W I I LV I L WL K
Y uv consul, mul
\P t'onsuhu ngunl.
?:Uv \Vhere do consuls derive their nuihority? *
Consuls derive t heir authority from two principal sources,

to wit, the loiter patent or let t rede provision, which is the com
mission issued by the sending state, and the exequatur, which
is the permission given them by the receiving state to perform ■
their funct ions t herein. |
’2:17. Mention sonic of the duties of consuls. ■

I
Among the important duties of consuls are the j
following:
(1) Protection of the interests of the sending state and \
its national in the receiving state. I
(2) Promotion of the commercial, economic, cultural and f
scientific relations of the sending and receiving states. j
(3) Observation of conditions and developments in the
receiving state and report thereof to the sending state.
(4) 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. |
(5) Supervision and inspection of vessels and aircraft of [
the sending state. (Convention on Consular Relations, A r t 5).
238. Do consuls enjoy their own immunities and

privileges? Explain. *
Yes, but not to the same extent as those enjoyed by

diplomats.
Like diplomats, consuls are entitled to the inviolability of
their correspondence, archives and other documents, freedom
of movement and travel, immunity from jurisdiction for acts
performed in their official capacity, and exemption from cer
tain taxes and customs duties.
I H I , I U ( , i n OK I,h<, A | ION 91
H ow (*v h ', co n su lt nr<* liable to nnoat and punrdimont for

grave offenses and may lx* required to give testimony, subject
to certain exceptions. Th e consular offices art! immune only
with re pe< t to t hat part where the* consular work is being per
formed and they may even Ire expropriated for purposes of na
tional defense or public u tility. {Id., Chapter II).
239. What is the duration of consular immunities and

privileges? *
The same rules apply as in the case of diplomatic im

munities and privileges. (See answer to Question No. 22H).
240. How may a consular mission end? *
It may end in accordance with the usual modes of ter

minating official relations under municipal law, such as
resignation, expiration of the term, and abandonment. The ex-
equatur may also be withdrawn by the receiving state, either
of the sending or receiving states may be extinguished, or war
may break out between them.
In case of war, the consulate is closed and, together with
the sealed archives, placed in the custody of a consul from a
neutral state. The consul from the enemy state is allowed to
depart for his own country as soon as possible and without un
necessary molestation.
Chapter X I I I
T R E A T IE S
241. W hut ih a treaty? *
A treaty may be defined as a form al agreem ent, usually

but not necessarily in writing, which is entered in to b y states*
or entities possessing the treaty-m aking capacity, for the pur
pose of regulating their mutual relations under the law o f na
tions.
In its generic sense, the term treaty m ay em brace such
com pacts as conventions, declarations, covenants, acts, con
cordats, pacts, etc., which have recognized variations in their
extent or purposes. A ll such agreements, w hen intended to
create legal .as distinguished from m oral obligations, are
binding on the parties.
242. How does a treaty differ from an execu tive agree-

ment? *
An executive agreement is not a treaty in sofa r as its

ratification m ay not be required,, u n der our C on stitu tion .
H ow ever, the distinction is purely m u n icipal an d . h as no
international significance. From the standpoint o f internation al
law, “treaties and executive agreem ents are alike in th a t both
constitute equally binding obligations u pon th e n a tion .” (FB.
Sayre, 39 Colum bia Law Review, p . 75 [1939]).
243. W hat are the functions o f treaties?
Treaties are supposed to perform the follow in g im portan t

functions:
(1) T o enable the parties to settle finally actu al and
potential conflicts.
(2) T o make it possible for the parties to m od ify rules of
international custom ary law b y means o f optional principles or
standards.
92
TUI*'.ATI UN 93
\\\) T o p a w (ho way lo r I I k * l i juin I oi m ntio n of un org a-

n n 'il in te rn a l ional society in io o ik * w hich m ay lx* organized on
kww chosen level o f social in te g ra tio n .
( i) T o provide tho humus for fho growth of international
custom ary law. {Schirur^ftibcrficr, 141).
211. VVliat are tho essential requisites of a valid treaty?*
T o be valid, a treaty m ust be:

(1) Entered into by parties having the treaty-m aking
capacity;
(2) Through their authorized organs or representatives;
(3) W ithou t the attendance o f duress, fraud, m istake or
other vice o f consent;
(4) On a lawful subject;
(5) In accordance with their respective constitutional
processes.
245. W h o are supposed to possess the treaty-m aking

capacity? Explain.
All states have full treaty-making capacity unless lim ited

by pre-existing agreements or self-imposed inhibitions. Thus,
the protectorate is restricted in the control of its external af
fairs; a neutralized state may not join an offensive or defensive
alliance.
On the other hand, there are instances when even mere
colonies have been allowed to sign treaties and participate in
international conferences together with full-fledged states.
The United Nations and its organs, such as the Security
Council and the Econom ic and Social Council, and interna
tional agencies like the W orld Health Organization, may also
enter into treaties.
246. W h o is authorized to represent the state in the con

clusion of treaties? *
It is for municipal law to determine which organ of tna
state shall be empowered to enter into treaties on its benaii
In this country, it is the President w ho is vested w ith tm*
power, but “no treaty or international a g reem en t shall be valid
and effective unless concurred in by at least tw o-th ird o f all the
Members o f the Senate.” (Constitution, Art. VII. Sec. 21)
This is in consonance with the general practice o f assign
ing the negotiation of treaties to the executive departm ent of
the government, subject usually to the consent o f the
legislature or one of its branches.
247. W hat is the legal effect o f a treaty concluded b y an

organ o f the state without authority to do so? Explain.
Harvard Research declares: “ A state is not bound b y a

treaty made in its behalf by an organ of authority n ot crm pe-
tent under the law to conclude the treaty. ” ^
But this view is disputed by some writers, such as
Hackworth, Hyde and W illoughby, to name a few. M cN air
writes that if a party negotiating a treaty produces an
authorization which appears to be com plete and regular
although constitutionally defective, “ the other party, if it is ig
norant and reasonably jg n ora n t of the defect, is entitled to
assume that the instrument is in order and to hold the form er
to the obligation of the latter. ’ *
The International Law Commission, in its draft Law of
Treaties, provides that “ the fact that a provision of the inter
nal law of the state regarding com petence to enter into treaties
has not been complied with shall not invalidate the consent ex
pressed by its representative, unless the violation of interna
tional law was m anifest.” {Art. 31).
248. How will fraud affect the validity of a treaty?
I f a state has been induced to enter in to a treaty b y the

fraudulent conduct of another contracting state, it m ay invoke
the fraud as invalidating its consent to be bound b y the treaty
or by the particular clauses thereof to w hich the fraud relates.
(IL C D raft Law o f Treaties, A rt. 33).
TREATIES 95
249. W h at is the effect o f error on the validity of a trea

ty?
It may invalidate the treaty if the error relates to a fact or

state of facts assumed by a contracting party to exist at the
time when the treaty was entered into and forming an essential
basis of its consent to be bound.
An error relating only to particular clauses shall invalidate
the conserrtof the state with respect to those clauses only.
When there is no mistake as to the substance of a treaty

but there is an error in the wording of the text, the error shall ^
not affect the validity o f the treaty. (Id., A r t 34).
250. When will coercion invalidate a treaty? *
The traditional view is that duress will invalidate a treaty

only when it is exerted on the person.of-the representative of
the contracting state and not when it is applied to the state
itself, as in the case of a forced cession or a dictated treaty of
peace. (Fenwick, 439).
In the Law o f Treaties drafted by the International Law
Commission, it is provided that “ any treaty the conclusion of
which was procured by the threat or use of force in violation of
the principles of the Charter of the United Nations shall be
void." (A rt 36).
251. Give examples of invalid treaties because of the il

legality of the su b ject.
An example is a treaty apportioning the open sea to the

exclusive uses o f the contracting parties.
Another is a treaty dealing with traffic in white slavery or
narcotics.
A treaty for the operation of piratical activities would
also be null and void.
IN I ' K K N A I I O N A L L A W K L V J h W h R
252. W liu t a r e the iihixii I steps in tins i r m l y making prf>

conn?
They are; (1) negotiation; (2) signature; (3) ratification;

and (I) registration with the Uni tad Nation?*.
253. D iscuss negotiation.
This refers to the discu ssion o f the p rov ision s o f the pro
posed treaty, undertaken by the representatives o f the con
tracting parties w ho are provid ed with creden tials known as
full p ow ers or pleins pou voirs. It is cu stom a ry for one of the
parties to subm it a d ra ft proposal which, togeth er with the
counter-proposals, becom es the basis o f the n egotiation. When
agreem ent is reached, the resultant instrum ent is ready for
signature.
254. W h a t are the uses o f the signature? ^
The signature is prim arily intended as a m eans o f authen

tica tin g the instrum ent and sy m b olizin g the g o o d faith o f the
con tra ctin g parties. S ign ifican tly, it does n ot indicate con sen t
w here ratification o f the treaty is required, as is usual. B u t
where ratifica tion is dispensed w ith, the signature will operate
to bin d the parties to the treaty.
255. W h a t is the so-called practice o f the a ltem a tl*
T h is is an arrangem ent under w hich each n egotia tor is

allow ed to sign first on the c o p y of the treaty w h ich he will
brin g hom e to his ow n country, the pu rpose b ein g to preserve
the form al appearance o f equality am ong the con tra ctin g
states and to av oid delicate qu estion s of preceden ce a m on g the
signatories.
256. W h a t is ratifica tion ? S tate its pu rposes. *
T h is is the a ct b y w hich a state form ally a ccep ts the p rovi

sions o f a treaty con clu ded b y its representative. T h e purpose
o f ratification is to enable the co n tra ctin g states to exam ine
%
rKKATU 'S
:rt\u> m ore closely and to g ive thorn an opportu nity to

:o be bou n d by it should they find it inimical to their in*
237. Is ra tifica tion indispensable to the validity o f a

treaty? E xplain.
W hile m ost treaties now expressly provide that they shall

re subject to ratification, the m a jority view is that the require
ment w ould still hold true even in the absence o f a provision to
:ris effect in the instrum ent. Hence, unless ratification is ex
pressly dispensed with, and m ore so if it is expressly required,
an unratified treaty cannot be a source o f obligations between
the parties.
258. Is there a legal obligation to ratify a treaty?
No, bu t refusal to ratify a treaty m ust be based on

substantial grounds; otherwise, the other party would be
justified in taking offense.
A t times, to v oid total rejection o f a treaty, the ratifica
tion is qualified or made conditional, that is, w ith reservations,
if allowed.
259. W h a t is the legal e ffect o f a reservation?
In its A d v is o ry Opinion on Reservations, rendered at the

request of the General A ssem bly in connection with the
ratification o f the G enocide Convention, the International
Court o f Ju stice declared “ that a State which has made and
maintained a reservation which has been objected to by one or
more o f the parties to the Convention but not by others, can be
regarded as being a party to the Convention if the reservation
is com patible w ith the ob ject and purpose of the Convention;
otherwise, the State cannot be regarded as being a party to the
Convention? ’ (I.C.J. R eports, p. 15/1951).
260. W h o has the pow er to ratify treaties in the Philip

pines?
i: tm IN I I'.lirMTIOMAJ, LAW HLVlhV/Lf!,
■
power l.o ratify l.m/dio# m vested in the /'resident of

Htn f’ lillippinow mid mil., ns is cjnnmnitly believed, in the
Irid^l'dmn Tin* roli» of tin* I/itturm confined airnply to giving or
withholding consent lo the nitifir/ifjon proposed to ho roodohy
Hm }> osidonf. Tho President emmet ratify a treaty without the
rnfinirronco of (wo-thirds of all the members o f the Senate.
( ( '(institution, Art.. VII, Hoc. 21).
261. When does a treaty become effecti ve?
On the date agreed upon by the parties. Jn the absence of

such an agreement, upon the exchange of the instruments of
ratification. Where ratification is dispensed with and no effec
tsvity date is provided for, the treaty becomes effective upon
signature.
262. Is the registration of a treaty essential to its validi

ty?
No. But under Article 102 of the United Nations Charter,

a treaty not registered with the U.N. Secretariat, by which it
shall be published, cannot be invoked before any organ of the
United Nations.
Nevertheless, the treaty does not cease to be binding on
the parties and may be invoked before other bodies outside the
United Nations.
263. Who are bound by the provisions of a treaty? Ex

plain. *
A sa rule, a treaty is binding only on the contracting par

ties, including not only the original signatories but also other
states which, although they may not have participated in its
negotiation, have been allowed by its terms to sign it later by a
process known as accession.
264. Are there instances when third states may be bound

by a treaty? Explain. *
TREATIES 99
(ionornlly speaking, non-parties to a treaty are not bound

thereby under t he maxim pacta tertiis nec nocent n ecprosunt.
There an' instances, however, when third states may be validly
held to the observance of or benefit from the provisions of a
treaty.
Firstly, the treaty may be merely a formal expression of
customary international law which, as such, is enforceable on
all civilized states because of their membership in the family of
nations.
Secondly, it is provided under Article 2 of the United Na
tions Charter that the Organization “ shall ensure that non-
member States act in accordance with the principles of the
Charter so far as may be necessary for the maintenance of in- /
ternational peace and security,” and under Article 103 that the
obligations of the member-States shall prevail in case of con
flict between the Charter and other international agreements,
including those concluded by non-members.
Thirdly, the treaty itself may expressly extend its
benefits to non-signatories thereof, as in the case of the Hay-
Pauncefote Treaty of 1901, which opened the Panama Canal
“ to the vessels o f commerce and of war of all nations observing
these Rules, on terms of entire equality.’ ’
Finally, parties to apparently unrelated treaties may also
be linked by the most-favored-nation clause, under which a
contracting state entitled to most favored-nation treatment
from another state may claim the benefits extended by the lat
ter to a third state in a separate agreement.
265. W hat are the two principal rules of international

law in connection with the performance of treaties?
They are the doctrine of pacta sunt servanda and the doc
trine of rebus sic s tantibus.
266. W hat is meant by pacta sunt servanda?*
It simply means that treaties must be observed in good

faith despite hardship on the contracting state, such as con
100 IN T K H N A T IO N A L LAW K K V IK W K K
flicts between the treaty and 1Lh constitution or prejudice to

thi' national interest as a result of the operation of the treaty.
As a general rule, u party must comply with the provi
sions of a treaty and cannot ignore or modify it without the
consent of the other signatory. Wilful disregard or violation of
treaties without just cause is frowned upon by the society of
nations.
267. What is described as the “ equivalent exception to

the maxim pacta sunt servanda’ 7 Explain.
It is the doctrine of rebus sic stantibus, which, according

to Jessup, “ would justify non-performance o f a treaty obliga
tion if the conditions in relation to which the parties con
tracted have changed so materially and so unexpectedly as to
create a situation in which the exaction of perform ance would
be unreasonable."
Thus, to use his own illustration, if States A and B agree
on the reciprocal use of their respective port facilities and B ’s
only important port is thereafter acquired by State C, State A
would be released from continuing to accord the treaty
privileges to State B, which is no longer able to fully perform
its obligations under the treaty. (Jessup, 161).
268. What are the limitations on the doctrine o f rebus sic

stantibus?*
(1) It applies only to treaties of indefinite duration.

(2) The vital change claimed as justification for the
discontinuance of the treaty must have been unforeseen or un
foreseeable and must not have been caused by the party invok
ing the doctrine.
(3) The doctrine must be invoked within, a reasonable
time from the occurrence of the change asserted. •
(4) The doctrine cannot operate retroactively upon the
provisions of the treaty already executed prior to the change in
circumstance. (Salonga and Yap, 310).
TREATIES 10]
269. How may a treaty be terminated?*
A treaty may be terminated in any of the following ways:

(1) By gjcpiration of the term, which may be fixed or sub-'
ject to a resolutory condition.
(2) By j^ccomplishment of the purpose.
(3) By impossibility of performance.
(4) By loss of the subject-matter.
(5) By novation.
(6) By desistance of the parties, through mutual con
sent, by desuetude, or by the exercise of the right of denuncia
tion (or withdrawal) when allowed.
(7) By extinction of one of the parties if the treaty is bi
partite.
(8) By the occurrence of a vital change of circumstance
under the doctrine of rebus sic s t a n t i b us.
(9) By the gutbreak of war between the parties, except
where the treaty is intended precisely to regulate their rela
tions during war.
(10) By vjoidance of the treaty because of defects in its
conclusion, violation of its provisions by one of the parties, or
incompatibility with international law, the U.N. Charter, or a
subsequent agreement.
Chapter X IV
NATIONALITY AND STATELESSNESS
270. What is nationality? Distinguish from citizenship. *
Nationality is membership in a political community with

all its concomitant rights and obligations. It is the tie that
binds an individual to his state, from which he can claim pro
tection and whose laws he is obliged to obey.
Citizenship has a more exclusive meaning in that it ap
plies only to certain members of the state accorded more
privileges than the rest of the people who owe it allegiance. Its
significance is municipal and not international.
Thus, during the American regime in the Philippines,
Americans and Filipinos were both considered nationals of the
United States vis-a-vis other countries; but Filipinos were
nevertheless not entitled to American citizenship and were
considered foreigners for purposes of the administration o f the
internal affairs of the United States.
The term subject, on the other hand, has particular
reference to the nationals of monarchial countries, e.g., a
British subject, who may be a citizen of Great Britain or one of
its colonies.
271. Why is nationality important in international law? *
Nationality is important in international law because an

individual ordinarily can participate in international relations
only through the instrumentality of the state to which he
belongs, as when his government asserts a claim on his behalf
for injuries suffered by him in a foreign jurisdiction. This
remedy would not be available to a stateless individual, who
would have no entity with international personality to in
tercede for him under the law of nations.
272. How may nationality bo acquired?*
Nationality may bo acquired by birth or by naturalizar
An individual acquires the nationality of the state where

ho is born jure soli or the nationality of his parents jure
sanguinis regardless of the place of his birth.
Naturalization, on the other hand, is a process by which a
foreigner acquires, voluntarily or by operation of law, the na
tionality of another state. (Hackworth, 1-3).
273. What are the kinds of naturalization? How is each

kind effected? Explain.
Naturalization may be direct or derivative. < J -w1;

Direct naturalization is effected by:
(1) Individual proceedings, usually judicial, under
general naturalization laws.
(2) Special act of the legislature, often in favor of
distinguished foreigners who have rendered some notable ser
vice to the local state.
(3) Collective change of nationality (naturalization en
masse) as a result of cession or subjugation.
(4) In some cases, by adoption of orphanTminors as na
tionals of the state wjiere they are born.
Derivative naturalization may be conferred:
(1) On the wife of the naturalized husband.
(2) On the minor children df the naturalized parent.
(3) On the alien woman upon marriage to a national.
{Id.).
274. What is multiple nationality? How is this condition

acquired?
Multiple nationality is the possession by an individual of

more than one nationality. It is acquired as the result of the
42*.
' 14
104 J.VJLKLA'i IONAL LA > tLV.r. A /,/,
concurrent application to him of the conflicting -a//*

of two or more states claiming him as their national.
275. Give examples of multiple nationality.
(1.) A child born in the United States of Filipino parents

would be an American national under the ju s soli and a Filipino
national under the jus sanguinis.
(2) A woman marrying a foreigner may retain her own
nationality under the laws of her state while also acquiring the
nationality of her husband under the laws of his state.
(3) Under the doctrine o f indelible allegiance, an in- £
dividual may be compelled to retain his original nationality 1
v,
Ci. notwithstanding that he has already renounced it under the
laws of another state whose nationality he has acquired. tFen-
pni i
wick, 258).
(4) A state may allow any of its nationals to remain as
such even if he may have acquired another nationality, as
where he is conferred an honorary citizenship by a foreign ;
government. |
276. If there is any question as to the nationality of an

individual, what law shall be applied in the first instance? *
Any question as to whether a person possesses the na

tionality of a particular state shall be determined in accord
ance with the law of that state.
In other words, it is for each state to determine under its
laws who are its nationals. These laws shall be recognized by
other states so long as they are consistent with international
conventions, international customs and the principles of law
generally recognized with regard to nationality. {Hague Con
vention o f 1930 on Conflict o f Nationality Laws).
NATIONALITY AND STATELESSNESS 105
ciple of effective nationality, the third state shall recognize

conclusively in its territory either the nationality of the coun
try in w hich he is habitually and principally present or the na
tionality of the country w ith which he appears to be in fact
most closely connected. (Id.).
278. T was born o f Austrian parents in the United States

and was resident in Austria. W hen required to render m ilitary
service in this latter country, he objected, invoking his
American citizenship. Could the requirement be enforced
against him? Reasons.
“ Citizenship is determined by rules prescribed by

municipal law. Under the law of Austria, to which claimant
had voluntarily subjected himself, he was an Austrian citizen.
The Austrian and the Austro-Hungarian authorities were well
within their rights in dealing with him as such. Possessing as
he did dual nationality, he voluntarily took the risk incident to
residing in Austrian territory and subjecting himself to the
duties and obligations of an Austrian citizen arising under the
municipal laws of A ustria." (United States [Alexander Tellech]
v. Austria and Hungary, Tripartite Claims Commission, 1928;
Decisions and Opinions, 71).
279. Nottebohm, a German by birth, had been a resident

of Guatemala for 34 years when he was naturalized in
Liechtenstein one month before the outbreak of W orld W ar II.
Many of his relatives and business connections were in Ger
many. In 1943, Guatemala, which had declared war on Ger
many, confiscated his property on the ground that he was an
enemy national, i.e., German. Liechtenstein protested, invok
ing Nottebohm’ s naturalization. Decide. *
“ N ottebohm ’s actual connections with Liechtenstein

were extremely tenuous. No settled abode, no prolonged
residence in that country at the time of his application for
naturalization . . . No intention of settling there was shown
at that time or realized in the ensuing weeks, months or
years—on the contrary, he returned to Guatemala very shortly
nftm hiM mit unili/.jit ion mid allowed every intention of remain
ing there.
' ‘ Nnlurnli/.nt ion was naked not ho much for the purpose of
obtaining a legal recognition of Nottebohm's membership in
fact in t he population of Liechtenstein as it was to enable him
to substitute for his stutus as a national of a belligerent state
t hat of a nat ional of a neutral state, with the sole aim of thus
coming within the protection of Liechtenstein without becom
ing wedded to its traditions, its interests, its way of life, or
assuming the obligations—other than fiscal obligations—and
exercising the rights pertaining to the status acquired.
“ Guatemala is under no obligation to recognize a na
tionality granted in such circumstances. Liechtenstein con
sequently is not entitled to extend its protection to N ottebohm
vis-a-vis Guatemala and its claim must, for this reason, be held
inadmissible." (I.C.J. Reports, 1955, p. 4, Judgm ent, A pril 6,
1953).
280. A claim for the payment o f certain checks was filed

against Peru by Italy on behalf of three brothers w ho were its
nationals. Peru asserted that one o f the claim ants was also its
national and the action with respect to him was resisted on
that ground. How would you decide? 1
“ A ccording to Peruvian legislation, Rafael Canevaro is a

Peruvian by birth because born on Peruvian territory.
“ On the other hand, according to Italian legislation, he is
of Italian nationality because born of an Italian father.
“ A s a matter of fact, Rafael Canevaro has on several occa
sions acted as a Peruvian citizen, both b y running as a can
didate for the Senate, where none are adm itted except Peru
vian citizens and where he succeeded in defending his election,
and, particularly by accepting the office of Consul-General for
the Netherlands, after having secured the authorization of
both the Peruvian government and the Peruvian Congress.
“ Under these circumstances, whatever Rafael Canevaro’s
status as a national may be in Italy, the Governm ent of Peru
has a right to consider him a Peruvian citizen and to deny his
N A T IO N A L IT Y ANI) NTATDJJvMHNKHH 107
status uh an Italian cla im a n t." {The (Janeoaro (Jane, Rerrruir

ncnt ('our/ o f A rbitration, IU12 S cott Haptic Court, R eport*, p.
2H4).
281. W h at in statelessness? How is it acquired? E xplain .*
Statelessness is the condition or status of an individual

who is born w ith ou t any nationality or who loses his nationali
ty w ithout retaining or acquiring another.
An exam ple o f the first case would be that o f a person
born in a state where only the ju s sanguinis is re
cognized to parents w hose state observes only the ju s
soli. The second case m ay be illustrated by an individual who,
after renouncing his original nationality in order to be
naturalized in another state, is subsequently denaturalized
and thereafter denied repatriation b y his former country.
282. W h a t is the consequence o f statelessness? Explain.
From the traditional v iew p oin t^ h e stateless individual is

powerless to assert any right that otherwise w ould be available
to him under international law were he a national o f a par
ticular state. A n y w ron g suffered b y him through the act or
omission o f a state w ould be damnum absque injuria for in
theory no state has been offended and no international delict
committed.
283. D oes this mean that the stateless individual is en

tirely w ithout recourse under the law o f nations?
No. Under the Covenant Relating to the Status o f

Stateless Persons, ad opted in 1954, the stateless person is en
titled to, am ong others, ifehe right to religion and religious in
struction, A ccess to courts,E lem entary education, p u b lic relief
and a ssista n ce^ ra tion in g o f products in short supply, and
treatment no less favorable than that accorded aliens in
general. M oreover, the term s o f the U niversal D eclaration of
Human R igh ts are sufficiently broad to encom pass the
stateless person w ith its protection and sym p ath y as a
member o f the hum an fam ily.
INTKKN ATION AL LAW UUVIUWKK
284. Nevertheless, what steps have been taken to avoid

the condition of statelessness?
The Hague Convention of 1930 adopted certain rules to

avoid the condition of statelessness and all its attendant in
conveniences. Briefly stated, these rules are as follows:
(1) Loss of nationality by an individual is conditioned
upon his retention or acquisition of another nationality,
whether such loss be by expatriation, naturalization as to the
wife and children, or adoption.
(2) In case of naturalization, the wife and the minor
children retain their existing nationality if they are not also
naturalized. Moreover, the wife will acquire her husband's na
tionality, if permitted, only with her consent.
(3) The adopted child's nationality is also not lost if he
does not acquire the adopter's nationality.
(4) In other cases, children shall have the nationality of
the state of their birth whenever their parents are: a) unknown;
b) stateless or of unknown nationality; or c) a father who is
stateless or of unknown nationality and a mother who is a na
tional of the state where they are born.
<'linptui x v
TIlIilA.TMlilNT OK AMICNfi
\\ luii ih (lie doctrine of Midi** rwijioimibiJity?
U ui the doctrine which lioldn n mUi Ic roapomjibk; for <?/i/

\U)Ui v juiMtoinod by nn alien within itMjurwliction becsnmof
an internal ional wrong imputable to it,
1!S(k Does this moilti Unit the state is responsible for

every injury suffered Ivy 1111 alien? Why?
No, because the state is not an insurer of the life or projver-

tv of the alien. The rule is that if he suffers injury at the hands
of a private person, his recourse will be against that person and
not against the state. The state will be responsible only if it is
shown that it participated iri the act or omission complained
of or was remiss in redressing the resultant wrong. .
Thus, th e’ state will be liable if, having knowledge of an
im pending riot against foreigners, it makes no effort to pre
vent it; and more so if it actually instigates or encourages it. It
will also be liable if an offense has been committed against the
alien and it does not take adequate steps to apprehend and
punish the malefactors.
287. W ou ld it follow that the alien is entitled to preferen

tial treatment in the local state?
No, because the alien must accept the institutions of the

state as he finds them. A s a matter of fact, he may even be
denied certain rights available to nationals, such as the right
to vote and the right to operate particular businesses.
However, the alien may complain if the laws of the state
do not conform to the international standard of justice. In such
a case, he m ay claim better treatment than that accorded the
nationals o f the state.
109
1 U) IN T K H N A T IO N A L LAW MOVIKWICR
288. What is the international standard of justice? Ex

plain. *
It is defined as the^standard of the reasonable state and

calls for compliance with the ordinary norms of official conduct
observed in civilized jurisdictions. It may refer to the intrinsic
validity of the laws passed by the state or to, the manner in
which such laws are administered and enforced.
For example, a law imposing the death penalty for petty
theft would fall short of the international standard. So too
would one calling for the arbitrary punishment of accused per
sons without compliance with the usual requisites of due pro
cess.
289. Distinguish between direct and indirect state

responsibility. *
, ft.
Direct responsibility attaches to the state if the wrongful
act orbmission was effected through any of itsûperior organs
acting on its behalf. Thus, a political decision of its chief ex
ecutive or its national legislature would be an act of state and,
as no recourse would be available against it, would give rise to
immediate state responsibility if an alien is injured thereby.
By cqntr&st, there are wrongs committed by inferior
government officials or even by private individuals which can
not be immediately regarded as acts of the state itself. The
responsibility of the state in such cases would only be
vicarious or ^direct and can be excused by proof that it was
not negligent in preventing the injury or in vindicating the
rights of the alien. (Schwarzenberger, 16&167).
290. What conditions are required for the enforcement

of the doctrine of state responsibility? *
The conditions are as follows:

(1) The injured alien must first exhaust all local
remedies. (Id, 16).
(2) He must be represented in the international claim for
damages by his own state. (Id, 165; Brierly, 283).
29L Why is the first condition important?
Principally, because the state must be given an op

portunity to do justice in its own regular way without unwar-
suited interference with its sovereignty by other states*
Moreover, the alien is presumed and required to take into ac
count the local remedies for determination and redress of
wrongs and ascertainment of state responsibility, if any. As
lias been aptly observed, “ it is a sound principle that where
there is a judicial remedy, it must be sought; and only if it is
sought in vain does diplomatic interposition become proper.”
(Harvard Research D raft Convention on Responsibility o f
States, 23 Sp. Supp. 133).
292. When may the first condition be dispensed with?
It may be dispensed with if there are no remedies to ex

haust, either because of intrinsic defect in the laws of the local
state or laxity or arbitrariness in their enforcement, as when
the courts are notoriously corrupt or when there is no adequate
machinery for the administration of justice. There would also
be no local remedy against the so-called acts of state, which are
not subject to judicial review.
In such instances, the injured alien may immediately seek
the assistance of his own state. J
293. W hat is the Calvo clause? * :. /
It is a stipulation by virtue of which an alien waives or

restricts his right to appeal to his own state in connection with
any claim arising from a contract with a foreign state and
limits himself to the remedies available under the laws of that
state.
A typical Calvo clause follows:
“ The contractor and all persons who, as employees or in

&ny other capacity, may be engaged in the execution of the
work under this contract either directly or indirectly, shall be
considered as Mexicans in all matters, within the Republic of
Mexico, concerning the execution o f such work and the fulfill

ment of this contract. They shall not claim, nor shall they
have, with regard to the interests and the business connected
with this contract, any other right or means to enforce the
same than those granted by the laws o f the R epublic to Mex
icans, nor shall they enjoy any other rights than those
established in favor of Mexicans. They are consequently
deprived of any rights as aliens, and under no conditions shall
the intervention of foreign diplomatic agents be permitted, in
any matter related to this contract.'’
294. Is the Calvo clause lawful?* !
Insofar as it requires the alien to exhaust the remedies

available in the local state, it may be enforced as a lawful
stipulation. However, it may not be interpreted to deprive the
alien’s state of the right to protect or vindicate his interests in
case they are injured by the local state.
Thus, as held in the case of United S tates (North
American Dredging Co.) v. M exico:
“ Under the rules of international law, may an alien lawful
ly make such a promise (as is embodied in the Calvo clause)?
The Commission holds that he may, but at the same time holds
that he cannot deprive the government of his nation of its un
doubted right of applying international remedies to violations
of international law committed to his damage. Such govern
ment frequently has a larger interest in maintaining the prin
ciples of international law than in recovering damage for one of
its citizens in a particular case, and manifestly such citizen
cannot by contract tie in this respect the hands of his govern
ment.” (Opinions 21, cited in A had Santos).
295. Strictly speaking, who has a right to complain in

case of injury suffered by an alien? *
From the viewpoint of international law, it is the state of

the alien and not the alien himself. W hat has been violated, in
legal theory, is not the right of the alien but the right of his
'I'lvi<;a 'I'M im r r <>i
*-<> hnv«* **-** i Mt t.i< >t ut In n« t< ( t in ,* \a,17 \n<>\a*JSa-s*) ///,*»*. ,r,
(111 im<Ii<lion of iiiidl lii i rit.nl.iv
T h n >i I h ii woulil, U h t i ^ iM:, b<* r v . j / n n i c O ronrîy ^ ^ r. / > v
I'**1 °1 m »l«*i t i n t i o i i n I h i w i h h I run it* 1, n* A, *\i r « j c t f y , r>ti v Vr> r * > > g r ,
I l»r iii*il i u 11»<*iil ii Ii t.y ot Inn own fifab; in enforcing an
I lotiiil claim for damn gen,
29(i. W h a t , t h e n , in t h e i m p o r t u n n : o f t h e s e c o n d c o n d i
tion ?
A s has boon p o in te d ou t, the d o ctrin e oi sta te r e sp o n sib ili

ty is ba sed on an in ju ry to a sta te th rou g h in ju ry to on e o f its
nationals, s o th a t if th e in ju red p erson is n o t a n a tion a l o f tine
co m p la in in g s ta te , th en n o in ju ry , leg a lly sp e a k in g , h a s Y>een
in flicted u p o n it. H e n c e , it w o u ld n o t b e a p r o p e r p a r t y t o in
stitu te a c la im o n b e h a lf o f th e in ju r e d p e rso n .
297. How long m ust the tie of nationality subsist? *
It m u st su b sist fro m the tim e of the injury to the tim e of

the award. If, for ex am p le, the injured person dies in the m ean
time and his heirs are n o t n ation als of the claim an t sta te , th e
claim will lap se. ( S c h w a r z e n b e r g e r , 166).
298. A r e th ere ex ce p tio n s to the secon d con d ition ?
Y es.
W h e n C o u n t F olk e B ern ad otte w as assassin ated in 1 95 0
while serving as U .N . m ediator in Palestine, th e U n ite d N a
tions w as allow ed to recover d am ages fro m Isra el. {I.C .J .
R ep o rts, 1 9 4 9 , p. 174).
L ik ew ise, u n d er th e E u r o p e a n C o n v e n tio n on H u m a n
R igh ts, the E u r o p e a n C o m m is s io n of H u m a n E ig h t s and also
con tractin g s t a t e s o th e r th a n th e h o m e s ta te of th e in ju red n a
tional m a y b r in g a lle g e d in fra c tio n s o f th e c o n v e n tio n before
the E u r o p e a n C o u r t o f H u m a n R ig h t s . (S c h w a r z e n b e r g e r , 1631
299. H o w m a y a n in te r n a tio n a l c la im fo r d a m a g e s b e e
forced ?
114 I N T E R N A T I O N A L LANS KEVIKYVtilt
U sually, by negotiation. If this fails, oth er m ethod s may

be em ployed, like g ood offices, m ediation, arbitration, judicial
settlem ent, etc. R etorsion s and reprisals have also been
em p loyed in difficult cases. In fact, redress o f the righ ts o f an
injured national has been in voked as ju stifica tio n for interven
tion b y som e states.
300. A ssu m in g that the respon sibility o f the state is

established or acknow ledged, how is reparation e ffe c t e d ? *
“ In international law, the du ty to m ake reparations

means the obligation to re-establish, so far as possible, the
state of affairs as it would probably have existed had the inter
national tort not been com m itted. The particular fu nction of
this rule is to assist in the restoration o f the legal equilibrium
w hich has been disturbed by the com m ission o f the interna
tional tort.
“ Thus, in the first place, reparation takes the form of
restitu tion in kind. If this is not possible, tw o su bsidiary form s
are available: satisfaction and com pensation. S a tisfaction is
any non-m onetary form o f reparation w hich falls sh ort of
restitution in kind. A form al a p ology or condem nation o f an
a ct b y an international tribunal illustrates this type o f repara
tion. For the rest, there is only m onetary com pen sation as a
su bstitu te for the im possible restoration o f the sta tu s quo
a n te.” (Schw arzenberger; 169).
In case o f com pensation, the measure o f the dam ages is
the injury sustained by the alien.
301. T o avoid responsibility fo r injuries to aliens, m ay a

state bar them altogether from its territory?
Yes; such an act would be within the com petence o f the

state as territorial sovereign. H ow ever, an exclusionist policy
would invite retaliation in kind and prevent the nationals of
the state from entering the territories o f other states, thus
isolating it from the rest o f the world.
TREATMENT OF ALIENS 115
302. W hat is the usual policy of states in regard to the

.fission of aliens?
Instead of banning them altogether or allowing their in-

f entry. most states regulate the immigration and
r: :: aliens and provide for their deportation if they are
303. If a wanted individual in one state should succeed

•nescaping to the territory of another state, is the latter under
?nv legal obligation to surrender him to the former?*
Legally speaking, no. The state of refuge has every right

;o allow him to remain in its territory in the absence of a treaty
of extradition with the state of origin.
^804. What is extradition? How does it differ from

deportation?
Extradition is the surrender of a fugitive by one state to

another where he is wanted for prosecution or, if already con
victed, for punishment. The surrender is made at the request of
the latter state on the basis of an extradition treaty.
Deportation is the expulsion of an alien who is considered
undesirable by the local state, usually but not necessarily to
his own state. The deportation is the unilateral act of the local
state and is made in its own interests.
305. Who are subject to extradition?
In general, persons who have committed in the territory

of the requesting state any offense covered by the extradition
treaty are subject to extradition.
If the fugitive is a national of the requesting state, the
Case does not present much difficulty. But if he is a national of
the state of refuge, it may refuse to surrender him and instead
undertake to prosecute and punish him. Some treaties, in fact,
expressly exclude the nationals of the state of refuge from the
t mition of the persons subject to extradition.
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of r&iuk <;*:î]y for UJs yuu.miitt- of ^ ibta&t
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?Afl A porv/n «5 ‘tifititfA. ffj HtMA A for *a4

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robbery. Upon hlx G'xrztMT&t oy Soane B to Bo&te A , //.■*•/ £M
Latter projects te Hrn for both ofIamaaC* fVxpj^f/.
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Be xsls first b%jn gp/en a reaxorjabae o^p/xr/vnx y V, retorr, 56-
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poetical o ffe rs fosr p x p o e ? of e^treoxdon fo Sh6
crBne of gerrxdf*? ;xo<er the ^jeoodoe Oooyeodoo of ^
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p o r fe B e c ix b o t x tBe r e o o e o d x g eryf r^ o,^ O b C 0 ^ ^ ^
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V. rx x ye*xxxioe? *
I: h foflrior s? exr of txe foôvdxg ooo.o:v^ô V&fr-

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or roBîoae groop ox ^;ox
_
.H > 1
T H IiA T M K N T OK A M K IJti
l 17
(1) K illin g m em bers ol the gr oup
(2) C a u s in g seriou s b od ily or incntoJ harm to

o f the g rou p .
(3) D e lib e ra te ly in flictin g on the g ro u p <o ud 11,1on** o f lifu
calculated to b r in g a b o u t its ph ysical dust* u< l ion in v/hoJu oi in
part.
(4) Im p o s in g m ea su res intended to pi ev e n t bnU ^
within the g rou p .
(5) F o r c ib ly tra n sferrin g children of the g rou p to
another g rou p .
310. M, an admitted anarchist, bombed o Paries

restaurant and a military barracks, then fled to Flighted Upon
being arrested for surrender to France under an extradition
treaty, he applied for h a b e a s c o r p u s , contending In tu t a h la that
the offense charged was political in charac ter Mow would y < „ ,
decide? *
“ In o rd e r to c o n s tit u t e an o ffe n s e o f a political e h n rn rte i,

there m u st be tw o or m ore p a rties in the Htate, each Booking to
im pose the g o v e r n m e n t o f their ow n ch o ice on the oth er, I f the
offen se is c o m m itte d b y on e sid e or the oth er In p u rsu a n ce of
that o b je ct, it is a p o litic a l o ffen se, oth erw ise not, In the p tih
sent case, th e p a r ty w ith w h om the a ccu sed is id en tified by the
eviden ce, a n d b y h is ow n v o lu n ta ry a ha toi rum t, n am ely, the
p a rty o f a n a r c h y , is the e n e m y o f all G o v e r n m e n ts T h e !; of
forts are d ir e c te d p rim a rily a g a in s t the general body <4
c itiz e n s . T h e y m a y , se c o n d a r ily and in cid en ta lly , c o m m it of.
fenses a g a in s t s o m e p a rticu la r G o v e r n m e n t; b u t a n a rch is t o f
tenses are m a in ly d irector] a g a in s t p r iv a te c i t i z e n s /' ( //, n ,
M e u n ie r, 2 Q. B . 416/18941).
311. A s a g e n e r a l p rin cip le, w here m u st the o f fens*} h a Ve

been c o m m itte d In o r d e r to be e x tr a d ita b le ?
In th e a b s e n c e o f sp e cia l a g reem en t, th e o ffe n s e must

have been c o m m it t e d w ith in th e ju r is d ic tio n or te n itor y o f tho
d em a n d in g sta te .
312. Briefly explain the procedure o f extradition. *
A request for extradition is first presented through

diplomatic channels to the state of refuge. This request will be
accompanied by the necessary papers relative to the identity
of the person sought and the crime he is alleged to have com
mitted or of which he has already been convicted. Upon
receipt of this request, the state of refuge will conduct a
judicial investigation to ascertain if the crime is covered by the
extradition treaty and if there is a prima facie case against the
fugitive according to its own laws. If there is, a warrant of sur
render will be drawn and the fugitive will be delivered to the
demanding state.
313. If there is no extradition treaty between the state of

refuge and the state seeking the fugitive’ s return, how may the
latter acquire jurisdiction over him? Explain. *
The state may still secure his surrender, but not as a mat
ter of right. In the interest of international com ity or courtesy,
the state of refuge may accede to the former’s request and sur
render the fugitive to it.
There have been instances when nationals of the state
seeking the fugitive have abducted him in the state of refuge,
as in the case of Adolf Eichmann, who was kidnaped in Argen
tina by Israeli agents and taken to Israel, where he was
subsequently executed for the murder of six million Jews in
World War II. But such acts are not allowed under interna
tional law as they constitute a Violation of. the territorial in
tegrity of the state of refuge.
It would be different, however, if the abduction or arrest
of the wanted individual is effected by or with the help of the
nationals of the state of refuge itself. Thus, in the famous
Savarkar Case, a prisoner on board a British vessel escaped in
a French port but was apprehended by the local police and
delivered back to the British authorities. When France later
demanded the prisoner’s return, it was held that Great Britain
was under no obligation to comply. (Hague Court Reports,
275).
Chapter X V I
S E T T LE M E N T OF IN TE R N A T IO N A L D ISPU TE S
,'IM. W h n t is an international dispute?*
MA dispu te exists when one state claim s that an oth er

stale should behave in a certain manner and that claim is re
jected by the la tter." {Ktdsen, 367),
An international dispute, in other words, is an actual
disagreem ent between states regarding the con du ct to be
taken by one of them for the protection or vindication o f the in
terests of the other.
^115. How would you classify disputes? Give an example

of each kind.
A dispute is le ga l if it in vo lve s justiciable rights based on

law or fact. An exam ple is a c o n flic t on the interpretation o f a
treaty or on the ascertainment of the boundary lines o f adja
cent states.
11 is p o litic a l if i t cannot he decided by an international ar
bitral or judicial tribunal under the rules of international law.
Such would be the case If one state, in the exercise o f it s
sovereign rights, enacts Im m ig ra tio n laws discrim inating
against the n a tio n a ls of another state, over the latter's protest.
3 Iff. W hat is a situation? How does it differ from a

dispute?
Where the disagreement has not y et fipened into an ac

tual conflict or -//here the issues have not yet been sufficiently
formulated and define*}, we have v /h a tis known as a situation.
A situation, therefore, is the initial stage of a dispute.
If/7 fs there an adequate machinery for the settlement

of interna t/onal d/spu tes? |h-
'I here is as yet no adequate machinery for the settlement

of inU'/national disputes With as is available under municipal
law for the enforcement and compulsory adjudication of its
rules.
While the United Nations is at present trying to fill this
void, its powers are markedly limited, especially where the
dispute does not^ffect international peace and security.
In consequence, states have at times found it necessary to
settle their disputes by themselves alone without regard to
higher authority. ;
But there are also times when the intervention of third
states is voluntarily sought or, as will appear later in the case
of the United Nations, forcibly imposed motuproprio.
318. How are disputes supposed to be settled?
Disputes are supposed to be settled, conformably to one

of the basic principles of the United Nations, “ by peaceful
means in such manner that international peace and security,
and justice, are not endangered.” U. N. Charter, Art. 2, par. 3).
319. What are the amicable methods of settling

disputes? *
They are negotiation, inquiry, good offices, mediation,

conciliation, arbitration, judicial settlement, and resort to
regional and international organizations. (Id., Art. 33).
These methods may be availed of independently of the
United Nations, or upon its recommendation or direction, or
with its active participation.
320. What is negotiation? *
Negotiation is generally the first step taken in the settle

ment of international disputes. It is nothing more than the
discussion by the parties themselves of their respective claims
and counterclaims with a view to their just and orderly adjust
ment.
Where the talks prosper and agreement is reached, it is
usually formalized in a treaty; more directly, it may be effected
SfOTlfct'MKNT OF 1NTK It N AT ION A L DISIMJTKS 121
•;vugh the rectification o f the rights o f the injured state, as

,v payment of dam ages. ------
ail. W hat happens if the negotiations fail or

.all apse"?
;n case the negotiations do not succeed in solving the

,'v e. the intervention o f third parties may be offered or re-
. Mod. Such assistance may com e from a state or several of
a, from an international organization, or from a prestigious
...iHsman of international stature like a head o f state.
322. W hat is inquiry? *
It is an investigation o f the points in question, on the

theory that their elucidation will contribute to the solution of
the problem. A s m ost disputes are caused by a
misunderstanding o f certain factual situations, their clarifica
tion by an impartial and conscientious body can limit if not en
tirely remove the areas of disagreement. The findings of the
party making the inquiry are not conclusive upon the
disputing states bu t they nevertheless do exert a strong moral
influence in the solution o f the conflict. (Hague Convention 1,
1907, Art. 9).
323. W hat are g ood offices? *
Good offices are a m ethod by which a third party at

tempts to bring the disputing states together in order that
they may be able to discuss the issues in contention. This is
usually employed when the protagonists are no longer “ on
speaking terms,” that is, when they have severed diplomatic
relations or have actually com m enced hostilities. (Id, Arts. 2,
3).
324. W hat is mediation, and how does it differ from good

offices? *
Mediation differs from good offices in that the mediator

does not merely provide the opportunity for the states to
negotiate but also actively participates in the discussions in

order to reconcile their conflicting claims and appease their
feelings of resentment. The suggestions of the mediator are
merely persuasive, however, and may be rejected without of
fense by the parties to the dipute. (Id, Arts. 4, 6).
325. What is conciliation, and how does it differ from

mediation?*
Conciliation also involves the active participation of a

third party in the attempt of the disputants to settle their con
flict, and the recommendations offered by it are likewise not
binding. But unlike in mediation, the services of the conciliator
are not volunteered by the third party but solicited by the par
ties in dispute.
326. What is arbitration, and how does it differ from

conciliation? *
Arbitration is a process by which the solution of a dispute

is entrusted to an impartial tribunal, usually created by the
parties themselves under a charter known as the compromis,
which also provides for the composition of the body and its
rules of proceedings, delineates the issues to be decided, and
sometimes specifies beforehand the law to be applied in the
decision. Unlike in conciliation, the proceedings are essentially
judicial and the award is, by previous agreement, binding on
the parties. (Id, Arts. 37, 45, 52)%
327. Compare arbitration with judicial settlement. *
They are similar in that the methods applied are judicial

in nature and the decisions rendered are binding on the parties
to the dispute. Moreover, the disputes submitted are legal and
not political.
The essential differences are as follows:
(1) The judicial tribunal is generally a pre-existing and
permanent body whereas the arbitral tribunal is an ad hoc
body created and filled by the parties themselves.
SETTLEMENT OF INTERNATIONAL DISPUTES 123
(2) Usually, jurisdiction in judicial settlement is com

pulsory whereas submission to arbitration is voluntary.
(3) The law applied by the tribunal in judicial settlement
is independent of the will of the parties but may be limited by
them in arbitration proceedings.
328. What is the International Court of Justice? *
It is the judicial organ of the United Nations and

superseded the Permanent Court of International Justice
under the League of Nations. The World Court, as it is popular
ly known, is governed by a Statute annexed to the Charter of
the United Nations.
329. Who may be parties in cases before the Court? *
Only states may be parties in cases before the Court.

(Statute, Art. 34).
Such states include:
(1) All states which are parties to the Statute of the
Court; and
(2) Other states, on conditions to be laid down by the
Security Council, provided they are not placed in a position of
inequality before the Court. (Id., Art. 35).
330. What is the basis of the jurisdiction of the Court in

contentious cases? *
Its jurisdiction is based on the consent of the parties. (Id.,

Art. 36).
331. What is the so-called “ optional jurisdiction clause? * ^
This is found in Article 36 of the Statute, which provides

that—
“ 2. The States parties to the present Statute may at
any time declare that they recognize as compulsory ipso facto
and without special agreement, in relation to any other state
accepting the same obligation, the jurisdiction o f the Court in ,

all legal disputes concerning:
a. the interpretation of a treaty;
b. any question of international law;
c. the existence of any fact which, if established, would
constitute a breach of an international obligation;
d. the nature or extent o f the reparation to be made for
the breach of an international obligation.
332. Over what matters may the Court exercise jurisdic-

tion? *
The jurisdiction of the »urt com prises all cases which

the parties refer to it and all matters especially provided for in
the Charter of the United Nations or in treaties and conven
tions in force. (7c£)
333. How are the decisions of the Court enforced? *
If any party to a case fails to;perform the obligations in

cumbent upon it under a judgm ent rendered b y the Court, the
other party may have recourse to the Security Council, which
may, if it deems necessary, make recom m endations or decide
upon measures to give effect to the judgm ent. (U. N. Charter,
Art. 94).
This does not exclude the em ploym ent of other means o f
enforcing international obligations, such as appeal to world
opinion, which are also available for the enforcem ent of the
awards of arbitral tribunals.
334. W hat are the so-called regional arrangements as a

means of settling international disputes?
These are organizations or agencies for dealing with such

matters relating to the maintenance of international peace and
security as are appropriate for regional action. A ccordin g to
Article 52 of the United Nations Charter, such agencies shall
“ make every effort at the pacific settlem ent o f local disputes,”
meaning those involving states com prised in a particular
SETTLEMENT OF INTERNATIONAL DISPUTES 125
x% \mor area. Examples are the ASEAN and the Organization

nf American States.
$35. W h a t other bodies are involved in the amicable set

tlement of international disputes?
Principally, the Security Council and the General

Aesembly. (T h eir r e s p e c t i v e p o w e r s in th is rega rd are d is -
cussed u n d er Q u e s tio n s N o s. 404 to 411.)
‘V36. W h a t g en era lly fo llo w s the failu re to settle a

d ilu te by am icable m e th o d s ?
A h a m a tte r o f c o m m o n p r a c tic e , th e s ta te s se v e r th eir

diplomatic r e la tio n s , u s u a lly a s a s te p to m o r e h o stile re m e d ie s
Umy may feel ju s t ifie d in ta k in g u n d er th e circ u m s ta n ce s . U n-
iortunately, m ea su res o f se lf-h e lp are n o t in fre q u e n tly r e so r te d
to in the co m m u n ity o f n a tio n s .
. H ow w o u ld y o u c la s s ify th e h ostile or n on -a m icab le

methods of se ttlin g d is p u te s ? *
Such m easu res m a y eith er b e a retorsion or a reprisal.
TiH. Define retorsion.*
R e to r s io n c o n s is ts in “ retaliation w here the a cts c o m

plained of do n ot c o n s titu te a legal grou nd o f offen se b u t are
rather in th e nature o f u n frien dly acts don e prim arily in pur
suance of legitim ate sta te in terests bu t indirectly hurtful to
other s t a t e s / ’ {F enw ick, 532). T h e acts o f retaliation are also
unfriendly but n ot illegal.
•V.tt). Illustrate retorsion.
State A, because its nationals have been discrim inated

{,r.uinst in the territory of State B, enacts prohibitive tariffs on
*r,oods coming from the latter state.
1he retaliation may also be in kind, as when one state
i the entry <>t the nationals of another state, prom pting the
latter to take similar action against the nationals of the

former.
400. W hat are reprisals? *
Reprisals are unlawful acts taken by one state in retalia

tion for the also unlawful acts of another state, the purpose be
ing to bring the offending state to terms. (Fenw ick, 532-533),
These acts are essentially forcible and are taken only by
strong states with sufficient power to back up their demands.
401. State the more common acts o f reprisal and give a

historical example of each. *
Am ong the more common acts of reprisal are the follow

ing:
(1) Display o f force, as when President Theodore
Roosevelt ordered the U. S. Mediterranean Fleet to proceed to
the coasts of Turkey in 1903 pending compliance by that coun
try with his demand for the return of a kidnaped American na
tional.
(2) Occupation o f territory, as when Italy bombarded
and seized the Greek island of Corfu in 1923 for the murder of
certain Italian officers.
(3) Embargo, or the detention by the state seeking
redress of the vessels of the offending state or its nationals,
whether such vessels are found in the territory of the former or
on the high seas, as illustrated by the action taken by the
Netherlands against Venezuela in 1908.
(4) Suspension o f treaties, as when Great Britain rejected
its stipulations for freedom o f navigation with the Netherlands
in 1870 because o f the latter's failure to comply with its
obligations under another treaty.
(5) Pacific blockade, by which the vessels of the offend
ing state are prevented from entering or leaving its ports by
the ships of the state seeking redress, as when the Great
Powers took this action against Greece in 1886 to dissuade it
from going to war against Turkey.
SETTLEMENT OF INTERNATIONAL DISPUTES m
402. Are retorsions and reprisals allowed under present

-lernational law?
No, because they contravene the principles of the United

Narions for the solution of international disputes by peaceful
;:.eans and the abstention by the states from the use of threat
r force. Moreover, reprisals are by their very nature unlawful
i:;s, and retorsions violate one of the purposes of the United
Na:ions, which is the promotion of friendly relations among
rations.
403. Nevertheless, what could be a practical justification

of retorsions and reprisals?
Their practical justification lies in that they may avoid

the necessity of creating a more serious state of hostilities
which might not be justified by the offense in question. In
other words, they are a mild alternative compared to war.
404. Over what disputes does the Security Council have

jurisdiction to intervene?*
The Security Council may intervene in the settlement of:

flj All disputes affecting international peace and securi
ty. HJ.N. Charter, A rts. 24, 34).
12) All disputes which, although covered by the
''domestic jurisdiction clause,” have been submitted by the
parties to it for settlement. (Id., Art. 2).
405. Who may bring disputes affecting international

peace and security to the jurisdiction of the Security Council? * gjj
Such disputes may be brought to the Security Council by:

U) The Security Council itself, on its own motion (Id.,
Art. 39).
*3) The General Assembly. (Id., Arts. 10, 11).
(3) The Secretary-General. (Id., Art. 99).
(4) Any Member of the United Nations. (Id., Art. 35).
(5) A ny party to a dispute, provided that in the case of

non-Members of the United Nations, they should accept in ad
vance, for the purposes of the dispute, the obligations of
pacific settlement prescribed in the Charter. (Id, A rts. 35, 37\.
406. What measures may the Security Council take in

the settlement of the disputes brought before it? Explain. *
First, it will call on the parties to settle the dispute by any

peaceful means of their own choice, such as negotiation, media- jg
tion, conciliation, etc. (Id, Art. 33).
Second, should they be unable to adjust their differences
by such means, it may recommend appropriate measures or
methods of adjustment, taking into consideration: a) any
amicable measure already adopted by the parties; and b) that *
legal disputes should as a rule be referred to the International
Court of Justice. (Id., Art. 36). ;
Third, it may recommend such actual terms of settlement d
as it may consider appropriate. (Id, Art. 37).
407. What may the Security Council do if its recommen- !

dationa are not accepted?
It may consider such rejection as a threat to or an actual

breach of international peace and may take the necessary
preventive or enforcement action.
408. What is the preventive or enforcement action that

it may take?
(1) In the first instance, it may adopt such measures not

involving the use of armed force, such as complete or partial in
terruption of economic relations and of rail, sea, air, postal,
telegraphic, radio and other means of communication, and the
severance of diplomatic relations. (Id., Art. 41).
(2) Should it consider that such measures would be or
have proved to be inadequate, it may then take such action by
air, sea or land forces as may be necessary to maintain or
restore international peace and security. Such action may in-
= a t ig n a l d i i pu te s 129
arxL ::b e r opera cions b y air,

>=.•5 : : :r~ Urn : a i N ations. I d , A r t
•
. *: s bn* obliga tion of the M em bers o f the
if. ' *<\ *. r.s *1 .ver; tht S ecoritT Council undertakes preên-
• ort*rr.%r.~ a' fvk$a?♦
■; >'a vUg~c :o rr.aê available to the Security Court-

v. ar.b m aooorbaaoe vr.cb a special agreement or
"a:O'; a r;:^ rvrcea. a— ~car.ce and facilities, including
:/ v. v: paanga aâaary fc^r the maintenance of interna-
a :â ano cec. city, id A rt. 4?v.
r.h\ U the role o f the General A ssem b ly in the

< r car a: <jc of Uit^rna tioTi&] peace and security? *
' ' ta; A r'clc-.e 11 of the United X ation s Cnarter, tne

ve'^ 'a. A cv j;:,;>(y m ay discu ss any question relating to the
;;C of ir.vermalio-nal peace and security duly b rou gh t
V: v<- except th at it m ay n ot make any recom m endation
'; 'C ri- y , a dispute or situation under consideration b y
•'e v ^ , r.ty Co ,.'.oil, uniess so requested. S u bject to this ex-
tne General A esernbly m ay recom m end m easures for
y P *eef ,j v .U ]fe/r.fe, t 0f any situation, regardless o f origin,
1 "■ -. tee.'.';'-, i;xe,y to im pair tne general welfare or friendly
' '’ •ông nations.
^ ‘merei A ssem bly may also take appropriate
<
*'>l tne maintenance of international peace and
th<}“ [ ; njtjng f or peace” R esolution.
*• ;s th e “ b’ niting for Peace” R esolu tion ?*
‘ 'v /i /f ' 1,5 H resolutionadopted b y the General A ssem bly on

” ■ 1% 0 , which provides infer aiia th at “ if the
, Vm ncil, because of lack of unanim ity o f the perma-
u"- , S a i l s to exercise its prim ary responsibility for
'••••.< y ^ m a r , , * f)f international peace and security m any
there appears to be a threat to the peace, breach of
130 INTKKNATIONAL LAW KKVi bWLK
the peace, or act of aggression, the General Assembly shall

consider the matter immediately with a view to making ap
propriate recommendations to Members for collective
measures, including in the case of breach of the peace or act of
aggression, the use of armed force;when necessary, to maintain
or restore international peace an<^ security. If not in session at
the time, the General Assembly may meet in emergency
special session within twenty-four hours of the request
therefor. Such emergency special session shall be called if re
quested by the Security Council on the vote of any nine
members, or by a majority of the Members of the United Na
tions.” I
The resolution also established a Peace Observation Com
mission of fourteen members to “ observe and report on the
situation in any area where there exists international tension,
the continuance of which is likely to endanger the maintenance
of international peace and security.”
Chapter XVII
W A R
412. W hat is war? *
There is no unanimity among writers on international law

as to the meaning or concept of war, some saying that it is a
•pecific action while others say that it is merely a specific
status. Viewed in the first sense, war may be defined as an
armed contention between the public forces of states or other
belligerent communities, implying the employment of force
between the parties for the purpose of imposing their respec-
ive demands upon each other. In the latter sense, war may ex
ist even without the use of force, as when one state formally
refuses to be governed by the laws of peace in its relations with
another state even if actual hostilities have not taken place
between them.
It has already been observed that the employment of
force by one state against another does not necessarily result
in war, e.g., in the case o f reprisals like a pacific blockade. On
the other hand, it may be remembered that when several Latin-
American countries declared war against Germany during
World War II, a state of war was deemed existing between the
parties notwithstanding that force was not resorted to in their
mutual dealings.
Kelsen suggests that “ like any fact to which international
law attaches certain consequences, the fact ‘war’ must be
ascertained by competent authorities. As long as no objective
authority is established, it is for the states concerned to ascer
tain the existence o f the fact ‘war’ in the international sense.’ ’
IKelsen, 25-27).
413. Under present international law, is war allowed as a

method of enforcing international rights? *
War was originally regarded as a legitimate means of

compulsion, provided, according to some writers, that it was a
131
132' INTERNATIONAL LAW REVIEWER
reaction to an international delict, i.e., it was a ju st war or

bellum ju s turn.
However, abhorrence of the widespread suffering it has
caused has inspired many attem pts to suppress it, notably in
recent times the Covenant of the League o f Nations, the
Kellogg-Briand Pact of 1928, otherwise known as the General
Treaty for the Renunciation of War, and the Charter of the
United Nations. The first two agreements were not very effec
tive because they allowed war under certain conditions. But
the U.N. Charter is more categorical in its outlawry o f war.
Thus, its preamble begins with a declaration that the
United Nations is determined “ to save succeeding generations
from the scourge of war which twice in our lifetime has
brought untold sorrow to mankind.’ ’ Toward this end, all
members are called upon to abstain from the use of force in the
solution of international problems and to see to it that even
non-members comply with the obligation of pacific settlement
of international disputes.
414. In what instances only is the use of force allowed

under the United Nations Charter? *
Only in two instances, to wit:

(1) In the exercise by a state of its inherent right of self-,
defense under the conditions prescribed in Article 51.
(2) In pursuance of the enforcement action that may be
decreed by the Security Council under Article 42.
415. W hat are the more important laws o f war? *
They are the following:

(1) The Declaration of Paris of 1856, concerning warfare
at sea.
(2) The Hague Convention of 1899, concerning the use of
expanding bullets and asphyxiating gases.
(3) The Hague Conventions of 1907, concerning the
| opening of hostilities; the laws and customs of land warfare;
conversion of merchant ships into warships; the laying of
WAR 133
automatic subm arine con tact mines: naval bom bardm ent in
umes of war: the exercise of the right o f capture in naval war;
me discharge of p rojectiles from balloons: the adaptation to
maritime w arfare o f the G eneva Convention of 1864 relative to
the treatment of the w oun ded in land warfare; the rights and
duties of neutrals in land warfare; and the rights and duties of
neutrals in naval warfare. ------- —
»4.i The G eneva Convention of 1925, concerning the use
of asphyxiating, poisonous and other gases and o f
bacteriological m ethods of warfare.
15) The Geneva Convention of 1929, concerning the
treatment of the sick and wounded and prisoners of war.
(6) The D eclaration of London of 1936, concerning the
use of submarines against merchant vessels.
(7) The G eneva Convention of 1949, concerning the
amelioration of the sick and wounded on land; the amelioration
of the sick and wounded, and of shipwrecked members of the
armed forces at sea; the treatment of prisoners of war; and the
protection of civilian persons in war. (Kelsen, 65-66).
416. H ow are the laws of war enforced? In other words,

what are their sanctions? *
The com m only accepted sanctions of the laws of war are

the following:
(1) Protest lodged by one belligerent, usually accom
panied or follow ed b y an appeal to world opinion, against the
unlawful acts of war com m itted by the other belligerent.
(2) Reparation for damages caused by the defeated
belligerent.
(3) Punishment of war criminals.
Reprisals are often mentioned as a fourth sanction, but it
is doubtful if they can be justified under the United Nations
Charter as they are essentially unlawful acts taken by one
state for the also illegal acts of the other belligerent.
rtfffflWATIONAI, I.AW If 10VI IsWMIt
*1/ When does war commence? *
i FTsgito Convention of 1907 relative to the Opening of

1 : 5 provides that hostilities rmist not commence
if .u previous end explicit warning, in tlie form either of a
' 'd 1r la '■tion of war or an ultimatum with conditional
r r i • V-f '■>r is supposed to commence on the date
- > ;fv i r the declaration or on the date it is communicated
yr>thn er^my.
However, this formality has not always been observed,
1 it, the surprise attack on Pearl Harbor by the Japanese in
•■'H, which started their war with the United States. In such
' ’ re? the rule is that war is supposed to commence on the date
r th? first act of force by one state committed with intent of
r ^ i r g war or committed without such intent but considered
/ rho other state as constituting war.
Thus, war may start: a\ with a declaration of war; b) with
'b* ejection of an ultimatum; or c) with the commission of an
' 4 f force regarded by at least one of the parties as an act of
wW (Bishop, 590).
4l8. What are the general effects of the outbreak of war?

.Explain:*
(1) The laws of peace cease to regulate the relations of

rh? belligerents and are superseded by the laws of war. Third
nt6s are governed by the laws of neutrality in their dealing
■/nib the belligerents.
(9) Diplomatic and consular relations between the
belligerents are terminated, and their respective represen
tatives are allowed to return to their own countries.
(3) Treaties of a political nature, such as treaties of
*11?pnee, are automatically canceled, but those which are
intended to operate during war, such as one
'ing the conduct Of hostilities, are activated; Multipar
tite treaties concerning technical or administrative matters,
postal conventions, are merely suspended between the
belligerents.
(4) Kfiwny public property lomitl in Uu, U>ttiU>iy of the
other belligerent. at the outbreak ol the lumtilitieri ir>f v/ith
tain exceptions, subject to coni ism tion. Kuemy private pro
perty may bo sequestered, subject to return or reimbursement
after the war in accordance with the treaty of peace,
419. How in the enemy character of individuals deter

mined?*
Individuals are impressed with enemy character under: a)

the nationality test, if they are nationals of the other
belligerent, wherever they may be; b) the domiciliary test, if
they are domiciled aliens in the territory of the other
belligerent, on the theory that they contribute to its economic
resources; and c) the activities test, if, being foreigners, they
nevertheless participate in the hostilities in favor of the other
belligerent.
420. How is the enemy character of corporations deter

mined? *
Corporations are considered enemies if a majority or a

substantial portion of their capital stock is in the hands of
enemy nationals who consequently exercise control over them
or if they have been incorporated in the territory or under the
laws of the other belligerent.
421. W ho are combatants? *
Combatants are those who engage directly or indirectly in

the hostilities. The following are considered combatants:
( i ) The regular members of the armed forces, whether
pertaining to the army, navy or air force, except those not ac
tively engaged in combat duty, such as chaplains and medical
personnel. Ulague Convention No. JVp J907, Regulations, Art.
h*
{%) The irregular forces, such as the francs tireurs, pro
vided that: a) they are commanded by a person responsible for
Ms subordinates; b) they wear a fixed, distinctive sign
188 IN PNHNATI ONAI , LAW I t KVI KWNI t
ro o o g n b a h lo at a distance; o) they carry arm s open ly; and <j)

(hoy condu ct l.hoir operation s in a cco rd a n ce w ith the laws and
cu stom s o f war. (/</.)
L'b The inhabit aid s o f u n occu pied territory w ho, on ap
proach o f t ho onom y, sp on tan eou sly take up arm s to resist I,he
invadin g troop s wit head h aving had tho tim e to organize
them selves, provided only that. they carry arm s open ly and
obsorv o tho laws ami cu stom s o f war. T h ose arc know n as
«Vries cn masse. (/</., Art. 2).
ytl Tho officers and crow ot m erchant vessels w ho for
cibly restst a ( t aok. '
422. T o what rights are com b a ta n ts en titled when cap

tured? *
W hen captured, com batants are entitled to treatm en t as

prisoners o f war, which include in ter alia the righ ts to be ac
corded the proper respect com m ensurate with their rank, to
adequate food and clothing, to safe and sanitary quarters, to
medical assistance, to refuse to g ive m ilitary in form ation or
render military service against their own state and to com -,
m unieate wit h t heir family. (/</,, C h a p ter2).
423. Does this mean that non-combatants, when cap

tured, arc not. accorded any protection under international
law? Kxplain.
No. N on-com batants do not en joy the same righ ts as com

batants when captured, but they nevertheless are protected
from inhumane treatment, under the G eneva C on ven tion of
1948 relative to the Treatm ent o f Civilian P ersons in T im e of
W ar.
424. W h a t are the basic principles underlying the laws of

war?
They are:
(1) The principle o f military necessity.

(2) The principle o f humanity.
W A If t :-i 7
|M Ht ' p t l m l p l c ol * hiYtilt V (//.'>' HZ/// l>t'pf t H u U o ; of

, . . Ml " » \
I u ,m ini*4l Vm* pthu'iph' of mllMnr y imr•«?##}ty.
Mil.? ptitMMpIp, I ho belligerents may, su bject to the

t «<tm ptinrlplm? em ploy imy ninoiinl find kind of force to
»m, w | i |,h rnm pleto subm ission of the enemy with the Jeast
» - u>p, |Mr^ of lives, time and money. It was this principle
Hmm n-.,M invoked to justify the bom bing o f Hiroshima and
1 i 'p •'«-Ori i ho argum ent being that more lives would have been
i H ihio drastic measure had not been taken and an
\ ,,o in vnsion of efapan had instead been attem pted.
», mi her measures as sieges, blockades, bom bardm ents
•!*' ocUofioti o f property, which may involve direct hard-
M,,h»«s o»» <hp non com batants within the area, are undertaken
'OmIm, principle. (H agu e Convention No, IV, 1907, Regula-
\r1 9/^27).
1 ^* I fiscuss the principle o f humanity.
this principle prohibits the use of any measure that is n ot

*»hnoinfc*k|y necessary for the purposes o f the war, such as the
ootr.tf,»,jMg ^gjig and weapons, the em ploym ent o f dum-dum
' <f 'o rp a llin g bullets and asphyxiating gases, the destruction
,f -nut \<P 0 p art an(j property devoted to religious and
l,,,rr,fo.itfirmri purposes, the bom barding of undefended places,
*,hfl f»H-aok on hospital ships. W hen an enemy vessel is sunk;
' o»V r belligerent must see to the safety o f the persons on
pjilage is prohibited. The wounded and sick m ust be
*H,'rif,rf0|y treated w ithout distinction of nationality by the
In w hose power they are. The rule that a com batant
f0io may not be killed and the agreem ents relating
hl i h* treatment of prisoners of war also com e under this prin-
'•ijiih
'M7. f tinaiRn the principle o f chivalry.
* he principle of chivalry is the basis o f such rules as those

'hnl require the belligerents to give proper warning before
lo> IN I YKN A I'lONAl LAW KKYlttN' KH
launching a bombardment or prohibit the use of perfidy in the

conduct of the hostilities. Ruses and stratagems are allowed
provided they do not involve the employment of treacherous
methods, like the illegal use of Red Cross emblems to throw
the enemy off-guard prior to an attack. In this connection,
false flags are not allowed in land warfare but war vessels may
sail under a flag not their own. subject only to the requirement
that they haul it down and hoist their own flag before attack
ing. Espionage is not prohibited under international law not
withstanding that it involves some deception.
428. What is a spy?*
An indiviual can only be considered a spy if, acting

clandestinely, or on false pretenses, he obtains or seeks to ob
tain information in the zone of operations of a belligerent, with
the intention of communicating it to the hostile party. (Hague
Convention No. IV, 1907, Regulations, Art. 29).
429. What are scouts?*
Soldiers not in disguise who have penetrated into the zone

of operations of a hostile army to obtain information are not
considered spies but scouts. (Id.).
430. Under what law may a spy be punished? *
A spy is subject to the municipal law of the hostile party,

except that, under the Hague Convention, “ a spy taken in the
act cannot be punished without previous trial.”
A spy who, after rejoining the army to which he belongs,
is subsequently captured by the enemy, is treated as a prisoner
of war and incurs no responsibility for his previous acts of es
pionage. (Id., Arts. 30, 31).
431. Distinguish between theater of war and region of

war.
The theater of war is the place where hostilities are actual

ly conducted, as distinguished from the region of war, where
W Af i
bebigerents may lawfully engage each otbe; T .,* ^

.--ris e their ow n territories and the h:gn ,r
V ^ ;:r a i territories.
432. W hat is belligerent occupation? *
I; is an incident of war which occurs wher, tue terrri/^ry

.f me belligerent is placed under the authority an.c co'.voi. of
- a evading forces of the other belligerent.
433. When is territory deemed occupied?*
Territory is deemed occupied when it is actually placec

— dir the authority of the hostile army. The occupation !s
hrdtcC to the area where such authority has been established
m i can be effectively exercised. ilcL, A r t 42*.
It is not necessary that every square foot of the territory
:e actually occupied. It is sufficient that the occupying army
tan. *ri:hin a reasonable time, send detachments of troops to
sake its authority felt within the occupied district. 'Hyde. Vol
434. W hat is the effect of belligerent occupation on the

sovereignty of the legitim ate government?*
Belligerent occupation does not result in transfer or

suspension of the sovereignty o f the legitimate government.
Orly the exercise o f sovereignty, and not sovereignty Itself, is
transferred to the belligerent occupant. iLaurel v. Misa, 44
O.G.1176*.
435. W hat is the basic obligation of the belligerent occu

pant in the administration o f the occupied territory?
The belligerent occupant is required to restore and insure

public order and safety, while respecting, unless absolutely
prevented., the laws in force in the country. This is particularly
witk regard to fam ily honor and rights, the lives of per-
private property, and religious conviction and practices.
Hague Convention No. IV , 1907, Regulations, A rts. 43,461.
|;|<! Im III'* 4
lM«lllHi«r# n | f { o ' / < ‘. r n m + n l p r o h i h j U A f r, ■
lnj| lift own I mwm in I hi* o<<'#|### f,<rrit/,r y'' "
No Whoimvnr i » - n m n , y , the beilige/<mt OCC* xtfrw

|n onuilgn Io now laws, p o b tsa ) and non political, provided
d<» nol rnnl invono the generally accepted principles of
I ionnl hi w.
137. lMn.V the b elligeren t oc cu p a n t m ake financial ir/vU

positJ ohn on Ui<* people o f the occu p ied territory?
T h e belligeren t occu p a n t m ay e x a c t from the populace

co n trib u tio n s over and a b ov e the regu lar ta xes for the needs of
Mu; o c cu p y in g arm y or the ad m in istra tion o f th e occu pied ter
ritory. (Id., A rts. 49-51).
It may also, for valuable consideration, make requisitions
of things or non-military services for the needs of the occupy
ing army. (Id., A r t 52).
438. May the belligerent occupant issue new military

currency? *
Yes, provided that the purpose is not to debase the

economy of the country. In H aw Pia v. China B anking Cor
poration, 80 Phil. 604, our Supreme Court upheld the validity
of the payments made by the debtor in J apanese military notes
during the occupation to settle a loan extended to her in Philip
pine currency before the outbreak of the Pacific war.
439. May the belligerent occupant confiscate private

property?
No, but those susceptible of military use may be seized,

subject to restoration or compensation when peace is made.
The property of municipalities and of institutions devoted
to religion, charity and education, and the arts and sciences
ever) when State-owned, shall be treated as private property,
and their destruction is expressly forbidden. (Id., A rts. 53-56)-
WAR
440. What is the power of tf.* b«.U>yjcn„<. V / ^

movable public property? ^ *'<kf
It may only take possession of cash, Uut/l*.

securities which are strictly the property of vm? x*
of arms, means of transport, stores ftR'f Soppjjee, <..v:
all movable property belonging to thefitate m.'tt.t, ';,ivy
for military operations, (/d , /I rL G.’i).
441. What is the power of the belligerent

immovable public property?
It shall be regarded only as an aCroiniwato,'

tuary of public buildings, real estate, forests, ^
estates belonging to the hostile State an/: situates ,7> ^ v.
cupied territory. {Id., A r t 55).
This rule was applied by our Supreme h ou /t7, >
Singson Encarnacion, G.R. No. 493, Apr,; 3 . V /; a
lease for five years granted by the occupation go/errneot
1942 over certain municipal fisheries was ceeme/; a ;v;;rat/un
ly canceled upon the re-establishment ol tne Go-.mm.res v;
government in 1944.
442. Explain the right of postliminium *
According to Vattel, it is the right by /•mm persons or

things taken by the enemy are restored t/> the form# stave or
coming actually into the power of the ration W %7j&n
belong.”
In its present broadened concept, the ;ra '/MUm? x/u
also signifies the reinstatement of the authority of Sne c &
placed government once control of the enemy ;s ~oss over 14&
territory affected. Thus, upon the end of a bebiêrent '//*,;/*
tion, the laws of the re-established government are re /, /eo anr;
all the illegal acts of the belligerent occupant, as web as ba
lawful acts of a political character, are invaiidaten
443. Illustrate t\\i'jus postliminium.
Taxes paid to (ho occupation governm ent cannot again be

collected by t he legitimate governm ent upon its restoration, as
it was within the competence of the former to collect taxes
while t he occupation was effective.
But a conviction for a crime against the occupying forces,
while valid during the occupation, would automatically fall to
the ground upon the revival of the lawful government as such
conviction is of a political complexion.
444. Mention some kinds of non-hostile intercourse

between the belligerents.
Am ong the kinds of non-hostile intercourse are flags of

truce, cartels, passports, safe-conduct, safeguards, and
licenses to trade.
445. What is a flag of truce? *
It is a white flag carried by an individual authorized by

one belligerent to enter into communications with the other
belligerent. The bearer, or parlementaire, is entitled to in
violability as long as he does not take advantage of his
privileged position to commit an act of treachery. However,
the hostile party is not obliged to accept a flag of truce. {Id.,
Art. 32-34; Fenwick, 578; Wilson and Tucker, 294).
446. What is a cartel?
A cartel is an agreement to regulate intercourse during

war on such matters as postal and telegraphic communication,
the reception of flags of truce, and the exchange of prisoners.
A cartel ship is a vessel sailing under a safe conduct for
the purpose of carrying prisoners of war. (Fenwick. 575; Wilson
and Tucker, 295).
447. What is a passport?
It is a w ritten perm ission given by the belligerent govern

ru,nt or its au th orized representative to an enemy national to
- ravel generally in bellig eren t territory. (W ilson aruL 'lacker,
' MOi.
448. W h a t is a sa fe con d u ct?
It is a pass g iven to enem y nationals or vessels allowing

; ^ sage betw een defin ed points. This is given either by the
I gerent g overn m en t itself or the commander of the area
: hin which it is effectiv e. (IcL)
449. W h at is a safegu ard?
It is a special protection granted by a commander to any

enemy person or prop erty w ithin his command. When it is en
forced by a detail of men, they m ust use extreme measures, if
necessary7, to fulfill their trust and they themselves are exempt
from attack or seizure b y the enemy. (Id)
450. W h at is a license to trade?
It is a perm ission given b y com petent authority to carry

on trade despite the state o f war. A general license grants to all
subjects of the enem y state or to all its own nationals the right
to trade in specified places or in specified articles. A special
license grants to a certain person the right to trade in the man
ner specified in his license. (Id , 296).
451. B y w hat agreem ents may hostilities be suspended

between the belligeren ts?*
Hostilities m ay be suspended by a suspension of arms, an

armistice, a cease-fire, a truce, or a capitulation.
452. W hat is a suspension o f arms? *
It is the tem porary cessation of hostilities by agreement

of the local com m anders for such purposes as the gathering of
the wounded and the burial o f the dead. (F en w ick, 579; Wilson
and Tucker, 297).
453. W hat is an arm istice?*
It is the suspension of all hostilities within a certain area

(local) or in the entire region of the war (general) agreed upon
by the belligerent governm ents, usually for the purpose of ar
ranging the terms of the peace. For example, a general ar
mistice preceded the termination of W orld W ar I. (H ague Con
vention No. IV, 1907, Regulations, A rts. 36-37).
454. W hat is a cease-fire?*
It is an unconditional stoppage of hostilities by order of

an international body like the Security Council fpr the purpose
of employing peaceful means of settling the conflict. (Salonga
and Yap, 451-452).
455. W hat is a truce?*
This term is sometimes used interchangeably with “ ar

mistice” but is now understood to refer to a cease-fire with con
ditions attached. (Fenwick, 579).
456. What is a capitulation?*
11 is the surrender of military troops, forts or districts in

accordance with the rules of military honor. (Id.,, 578; Hague
Convention No. IV y 1907, Regulations, Art. 35).
457. How is war terminated? *
War may be terminated:

(1) By simple cessation of hostilities.
(2) By the conclusion of a negotiated treaty of peace.
(3) By the defeat of one of the belligerents. (Bishop, 591;
Wilson and Tucker, 300-302).
WAR l U>
^Vv Discuss simple cessation of hostilities us n mode of

, :-3 iia g w ar.*
A a r m ay end in th is m anner sim ply because (Ivo

- rrer.;s are n o lo n g e r w illin g to con tin u e lighting. A m on g
'* 7 - ats that w ere term in a ted by volun tary cessation o f
hties are th o se b e tw e e n Sw eden and Poland m 171(1,
A -;e and Spain in 1720, Sp ain and its A m erican colonies in
. ; -1 . and France and M e x ic o in 18G7.
V.'hen war en ds in th is w ay, property or territory in I,he
^r -5ffsion of the r e s p e c tiv e belligeren ts upon t he termination
t; -He hostilities are retain ed b y them under t he principle o f ut!
n : /;re:fs. This is to b e distin g u ish ed from an agreement for
A A-ras quo an re. w h ich calls for the com plete testoration to
former ow ners o f p ro p e rty or territory that may have
^ f a d y changed h an ds d u rin g the war, with the exception o f
— -r sn d b ootw
459. W hat is a n e g o tia te d treaty of peace?
Ib is is a trea ty con clu d ed by the belligerents when

nhrber is able to e ffe ct a d ecisiv e victory over t he other, as was
me case with G reat B ritain and the United States when they
em-ered into the T rea ty o f G hent to end t he W ar of 1812*
460. D iscu ss the defeat o f one of the belligerents as a

mode of term inating war.
The defeated b ellig eren t may surrender either condi*

tionally or u n con d ition ally . In the former casts a treaty of
peace is concluded w h ich m akes provision for the conditions
specified in the surrender. In the latter ease, thoAbetorious
belligerent usually issu es a unilateral declaration announcing
the end of the war, to be follow ed by a treaty of peace in which
the reparation to be m ade b y the vanquished state and the
disposition o f its territory and property are dictated by the vie*
torious state.
( ’linplor XVIII
NKUTKAIilTY
(III Wind. Imneutrality?*
Noutnilit v in tlio condition of a ntuto that does not take

part., directly or indirectly, in a war between other states. If
recognised by the belligerents, this condition gives rise to
rights and obligations between them and the neutral state in
their mutual relations.
462. Is perfect or absolute neutrality possible at pre

sent? W hy?
No, for the following reasons:

(1) The techniques of modern warfare a*nd advances in
international commerce have involuntarily involved third
states in hostilities to which they are technically not parties.
(2) The compulsions of present-day international
politics make it difficult for states to maintain a strictly impar
tial attitude in the face of conflicts that, although they may
not be actually engaged therein, will unavoidably affect their
security and future, t
(3) The provisions of the United Nations Charter require
member-states to participate in any preventive or enforcement
action that may be decreed by the Security Council in case of
threat to or breach of the peace of the world.
463. Distinguish neutrality from neutralization. *
(1) Neutrality is dependent on the attitude of the neutral

state, which is free to join either of the belligerents any time it
sees fit; neutralization is the result of a treaty wherein the
duration and other conditions of such neutralization are agreed
upon by the neutralized state and other states.
(2) Neutrality is governed by the law of nations;
neutralization is governed by the neutralization agreement.
146
NEUTRALITY 147
3' Neutrality obtains only during war; neutralization in

. -ded to operate in peace andin war.
41 Only states may become neutral; neutralization may
7 to portions, of the territory oF°tbe state, like islands,
Ve:; and canals. *
-’64. Where are the more important rules on neutrality

found*?*
They may be found in the customary law of nations and in

su:h conventions as the Declaration of Paris of 1856, the
Hague Conventions of 1907, and the unratified Declaration o f ,
London of 1909.
465. In general, what are the mutual rights and duties of

theneutral and belligerent states? *
A neutral state has the right and duty to abstain from

taking part in the hostilities and from giving assistance to
either belligerent; to prevent its territory from being used by
the belligerents in the conduct of the hostilities; arid to ac
quiesce in certain restrictions and limitations that *EKS
belligerents may find necessary to impose, especially in con
nection with international commerce. (Schwarzenberger, 208).
The belligerents, on the other hand, are bound to respect
the status of the neutral state, avoiding any act that will
directly or indirectly involve it in their conflict and submitting
to any lawful measure it may take to maintain or protect its
neutrality.
466. For what purposes may neutral territory not be

used by the belligerents?*
,, In general, war activities by or ori behalf of the

I belligerents may not be undertaken in the territory of the
| ®eubr&l state without infringement of its neutrality. Neutral
erritory is inviolable and may not be used by the belligerents
the movement of their troops, the transport of war sup-
es> fche erection of wireless stations for exclusively military
118 I NTKIt.N ATM >11AI. MAW IM',VIMV/MK
purpose's, the rurruiting of nolriioni, and Hirnihfr kmdn f,j

m ilitary operations. All ol those nots tillould bo resisted by iyif,
neutral state, with finned force if noo,e«o;j/y,. pad ^;ch
resistance is not to be regarded as a hostile,act. (Hague CW
vent ion No. V, 1907, C h apter/).
467. In what instances may neutral territory he validly

used by the belligerents?*
The use of neutral territory is not completely barred to

the belligerents. For example, the passage of sick and wounded
troops is allowed through a neutral state provided personnel
and materials of war are not carried. Persons bound for enlist
ment in the belligerent armies may cross the neutral frontiers
if they do so individually and not as a body. The neutral state
itself may give refuge to belligerent troops but must intern
them as far as possible, at a distance from the theater of war.
Escaped prisoners of war need not be detained by the neutral
state but must be assigned to a place of residence if they are
allowed to remain. (Id, Chap ter 2). „
468. Is the use of neutral waters by belligerent warships

entirely prohibited? Explain. *
The neutrality of a state is not affected by the mere

passage through its territorial waters of warships or prizes
belonging to belligerents. However, they may not enter neutral
ports, harbors and roadsteads except only in cases of
unseaworthiness, lack of fuel or provisions, or stress of
weather. (Hague Convention No. X III, 1907, Arts. 10, 14, 17,
18,19, 20).
469. How long is the belligerent vessel permitted to stay

in the neutral port?
The usual limit is 24 hours, but this may be shortened or

extended, depending on the reason for the entry. (Id., Arts. 12,
14).
NEUTRALITY M l)
470. W h at is the degree o f provision in g and repairs of

^ liferent vessels th at m ay be allow ed in the neutral port?
Belligerent w arsh ips m a y only revictual in neutral ports

:: riadsteads to b rin g up their supplies to the peace standard.
Sirdlariy, they m ay on ly ship sufficient fuel to enable them to
:ea:h the nearest p ort in their own country.
As for repairs, on ly such as are absolutely necessary to
iia/-e the vessel seaw orth y m ay be undertaken, and they may
add in any manner w hatsoever to its fighting force. The
neutral power shall decide w hat repairs are necessary, and
tdese must be carried out w ith the least possible delay. (Id,
Arts. 17-19).
471. M a y v e s s e ls fr o m d iffe re n t b elligeren ts be allow ed

together in th e sa m e n eutral p o r t?
Yes, bu t in such a case a period of 24 hours must elapse

between the departure of the vessel of one belligerent and the
departure o f the vessel of the other belligerent, the order being
determined by their arrival. (Id., Art. 16).
472. H o w m an y vessels from one belligerent m ay sta y in

neutral w aters a t the sam e tim e?
Not more than three vessels from any belligerent shall be

allowed simultaneously in the same neutral port or waters.
(Id., Art. 15).
473. M a y neutral w aters be used as asylum fo r

belligerent vessels under pursuit or attack?
No. A n y m an-of-w ar entering a neutral p o r t for this

reason should b e asked to leave and, if it refuses, should be
rendered incapable o f p u ttin g to sea for the duration o f the
war, its officers and crew being interned b y the neutral state.
474. W h a t is the rule if a prize is captured in neutral

waters or brought th ereto w ith ou t valid ju stifica tion ?
150 IN 'IW iW A 'U O W /.i/ ///. H
The neutral power //^ M <-'h'/U/y to * M**vi44v <U>

to release it with its oJJuxmfc */VS ***<*/ W-4 t& WtAttl ,:M pr'/s
crew. (Jd., Arts. tih itfy.
475. W hat should don* v/; v, *lt^ f| |

forced to land on neutral he#ritor/7 £
The aircraft should be -#‘ /i /'4 ^>h4r# £M itm

interned.
476. Give examples of c-.-tMjt, #’*%*'* the'

neutral state may not extend to any
The neutral state may /M f4- , llA4/ tor tm gents,-

grant loans or even se)J sopx.'Lee tv *my o* 4r 4
The famous Lend Jx?ase A c t of , V , , / - 4h4trde
which the United States Uw 4i f e / v ; wa.< ,"*•%-‘ *,4 o gland
during World War 11, was, sh r illy * YsAviXm rf
American neutral duties.
477, Does in ter nation* I law e-JJLow 4%* y-..* *;-,***£ ryf war
supplies by the belligerents, m t;*e or<v,v*-.*y ov>«$* ef eettl'
merce, from private traders in s ^ tJ *w&*r*. *
The neutral state is not ob b g*/: y , y 'e /^ 'A iiv v exporter

transit, for the use of either '/ s.vye, s.vuv.onition.
or in general o f anything which o o , y ^ o? M4 tv 4,-, rrmy 6r
fleet, (ld.} A rt. 7),
However, it must employ hM mee-,',% *4 #4 h^jyvse* w pre
vent the fitting out or arming of any yeev**; w?&my >->risdiC'
tion which it has reason to believe 4 ,/ V, ne used
against a belligerent, it is slso oov oc tv the .same
vigilance to prevent the departure j / v r of any
vessel intended toengage in hostile yp v /a h ^ /^ /Axih aad been
adapted entirely or partly v/ihAo t/a. y >r4r.votior» for use
in war. (/d Art. 8).
Thus, in the fam ous A */w? wh*ieh wae the
subject of arbitration in G#*#* ^yyWv-o w&e -md hable
for, am ong others, its failure ho p#eyew44h* 4eby*hy of sever si
Mlr.iri It A l ,I I V
hH«"I ««"'l «"r.0.| \,y PthiffhmUhm 1, „

, i cuxl I'V) Mm C o n M ljM i/y tit,tin y
1|Mt iv/il will
l/»; Under inloriiiiiioM iil law, i* the neutral hM s ob liged

, ,j,ihi» if* iintioviidN fro m d ea lin g with the b# JJjgerent*?
M is com m on p ra ctice for neutral etnfm to enact Jcg/sia

, designed to a v oid thoir in volvem en t in foreign wars as a
,0 of I ho net s o f thoir nationals. This in n ot a d u ty im p w x )
nternational law, how ever, for neutral states are free to
, t hoir nationals, in their private capacity, todeaJ with an y
■i.e belligerents.
47T W h a t is the e ffe ct o f transactions between

. UigArents and the nationals o f neutral states upon the
d ra b ly o f such states? Explain.
if, for instance, the nationals o f a neutral state enlist in a

v=iM^»rorit arm y or engage in com m erce with a belligerent
the neutrality o f their own state is not thereby com-
;,/nTr,is*d in the absence of special agreement im posing on the
*tr»l state the du ty of preventing such transaction.
International law considers the relationship strictly
y/een the individual and the belligerent states and whatever
'•*Mship may he suffered by its national as a result thereof
as a rule, be acquiesced in by the neutral state.
4*50. fIfscfiss the right of visit and search. *
Thi<* is the right of belligerent vessels and aircraft to in-

t'tt< y,u<\ inspect neutral merchant vessels on the high seas
It* the purpose of determining if they are in any way connected
vith the h'/fttilitie*, eg., carrying contraband, attem pting to
i, blockade, or engaged in unneutral service, in favor of
the Ot/har lv*llig0'0fit.
4^1 What 1# the effect of resistance to the exercise of

the fight, of visit end search?
i o k: INTERNATIONAL LAW REVIEWER
Forcible resistance to the legitimate exercise of the right

of stoppage, visit and search, and capture, involves in all cases
the condemnation of the vessel. The cargo is liable to the same
treatment which the cargo of an enemy vessel would undergo.
Goods belonging to the master or owner of the vessel are
regarded as enemy goods. (.D eclaration o f London, 1909, Art.
63L
482. W h at is prize? *
Prize refers to a thing captured at sea in time o f war, such

as a neutral merchant vessel taken by a belligerent warship for
engaging in hostile activities or resisting visit and search, or
because of reasonable gjaspicion that it is liable to confiscation.
483. Is prize subject to summary confiscation? *
No. It must be brought to a prize court for adjudication.

The only exception is where the vessel or goods are enemy
public property, title to which is immediately transferred upon
capture to the other belligerent.
484. W hat is a prize court? *
It is a tribunal established by a belligerent under its own

laws, in its territory or in the territory of any of its allies, for
the purpose of determining the validity of maritime captures.
485. What law is applied by a prize court? *
A prize court, although established by municipal law, ap

p lie s the rules of international law.
486. What is the reason for the establishment of prize

courts?
It is to avoid arbitrary disposition of the prize and to pro

tect the belligerent from claims that neutral states may file
against its alleged invalid confiscation.
487. What rules were laid down by the Dwlnrulion of
Paris of 1856 regarding the treatment of sea borne good* j/j
time of war?
(1) yEnemy goods under a neutral flag are not subject to

capture, except contraband of war.
(2) N eu tral goods under an enemy flag are not subject \/>
capture, except contraband of war.
488. Define and classify contraband. *
Contraband is the term applied to goods which, although

neutral property, may be seized by a belligerent because they
are useful for war and are bound for a hostile destination.
A b s o l u t e contraband is necessarily useful for war under
all circumstances, like rifles and ammunition.
v1Conditional contraband has both civilian and military
uses, like food and clothing.
A third category is usually added under what is known as
a “ free list” which includes goods useful for war and bound for
the enemy but exempted from confiscation for humanitarian
reasons. A m on g these are medicines for the use of the sick and
wounded. {Id., A rts. 22-29).
489. W h en is contraband subject to capture? *
Absolute contraband is liable to capture if it is shown to

be destined for territory belonging to or occupied by the
enemy, or to the armed forces of the enemy. It is immaterial
whether the carriage of the goods is direct or entails either
transshipment or transport over land. (Id, Art. 30).
Conditional contraband is liable to capture if it is shown
that it is destined for the use cfa the armed forces or of a govern
ment department of the enemy State, unless in this latter case
the circumstances show that the articles cannot in fact be used
for the purposes of the war in progress. {Id, Art. 33).
IPO W hy Iiiim (ho h Ihivo <UhMii <‘ M<»» lost much of Jtg
practical value?
I'ust. luvmiso most w n rlim o im portations are now

government controlled ay a result oletirm iiey restricflk/ns.
Second. because under t he doctrine o f ultim ate consump-
?j\>ru gxxxls intended for civilian use which may ultimately find
thoir way to and be consumed by the armed forces of the
belligerent states are also considered liable to capture on the
way.
491. Discuss the rules on the disposition o f contraband

and other goods captured with it. *
Contraband is subject to confiscation. N

Innocent goods shipped with and belonging to the owner
of the contraband are also confiscated under the doctrine o f in
fection.
Innocent goods belonging to other persons are exempt
from confiscation but their owners are not entitled to damages
for delay and inconvenience. {Id, Arts. 39, 42, 43).
492. Will the vessel carrying the contraband also be con

fiscated?*
The confiscation of the vessel carrying contraband is

allowed if the contraband forms, either by value, by weight, by
volume or by freight, more than half the cargo. (Id., Art. 40).
493. When and where may a vessel carrying contraband

be captured? *
It may be captured on the^tfgh seas or on the territorial

waters of the belligerent throughout the whole course of its
voyage, even if it has the intention to touch at a port of call
before reaching the hostile destination.
A capture is not to be made on the ground of a carriage of
contraband previously accomplished and at *Enifi rv° rn-
pieted. (Id., A rln. 37-3H).
NEUTRALITY
494. W hat practice haw been devised by merchant

/( to minimize the riwk of capture for carriage of contra-
b-i nd? *
Merchant vessels have resorted to the pretense of stop-

; * v, at an intermediate neutral port, where the contraband is
shaded so as to give the appearance that it was actually
c o in e d for this port, although it is subsequently loaded
aspin, in the same vessel or in another vehicle, for delivery to
its real destination.
The vessel hopes thus to acquire immunity during its
/oyage from the port of origin to the neutral port and to run
the risk of capture only from the time it leaves the neutral port
until it reaches the belligerent port.
495. W hat is the doctrine of ultimate destination? *
This is the doctrine evolved to counteract the subterfuge

described above, and embodied in Article 37 of the unratified
Declaration of London of 1909. Even if a vessel does make a
stop at an intermediate neutral port, it is nevertheless con
sidered under this doctrine to be in one continuous voyage
beginning from the port of origin to the hostile destination and
liable to capture during any part of this voyage.
This doctrine is also called the doctrine of continuous
vrr/age if the goods are reloaded at the neutral port on the
same vessel and the doctrine of continuous transport if they
are reloaded on another vessel or other form of transportation.
4 9 What is a blockade? *
A blockade is a hostile operation by which the vessels and

aircraft of one belligerenTpriventâll other vessels, including
those of neutral states, from entering or leaving the ports or
coasts of the other belligerent, the purpose being to shut off
tne place from international commerce and communication
*bth other states.
l h(i
■ N'millAT/OMAI, I.A 7/ l't>//l',//gf f
11)7 VV ImI mi t*< II m Hajiiltdbtj o t n 'infill
(l| II iimimI lin <wl.iihht)h«d by the p'OpOf flu'tho/'rfjfa, ,

l'l'° bhuUmling nl nl-n, uumilly the chief of %f,eU^ v^
(-) II. miitif be ollwMvu, / r, it miwh h*> rntunUinM ^
lort*(' Mullirionl to prevent entry mho or o /il f/Ofh tOh ;
count.
(II) 11, imiNl, be duly communicated in » dwforutior,
tying: n) the date when the blockade 7/ili begin; b; ^
geographical limits of the blockaded count; and c; the delay f/,
be allowed neutrul vessels for departure.
(4) It m ust be limited to the jports and coasts belonging
to, or occu pied by, the enemy.
5. It m ust be im partially applied to the ships of all na
tions. (Id , 7, 2, 5, 8, 9, 77, 76*).
498. W h at is the duration o f a vessel’s liability to cap

ture fo r breach o f blockade? *
The liability continues as long as it is pursued by the

ships o f the blockading state after it has left or tried to enter
the blockaded port. If the pursuit is abandoned or the blockade
is lifted, capture o f the vessel can no longer be made. (Id., A rt
20 . )
499. W hat are the consequences o f a breach o f blockade?*
A vessel found guilty of a breach o f blockade is liable to

con dem nation. The cargo may also be confiscated unless it is
shown that at the time it was shipped the owner neither knew
nor could have known o f the intention to violate the blockade.
{Id., Art. 21.)
500. When does a blockade terminate?*
(1) When the blockading force voluntarily withdraws.

(2) When the blockading force is driven away.
(;j) When the blockade ceases to be effective.
Mj When hli/t j*. >r/ f )>,<•.
blockading fc»i/ ii-
(fj) Wljfcl* the V/0* llhHf f*
501. What In unnCMM*d boHtwf*
Ihit tent# fj I fit$i '/U..e r'/mhi^d N hf nct$, of % tttOte hostile

chaiacter than a n n u ls tA *.onM'dnmd o? tfteath Of blockade,
wliieli hit unde* tnhen by mmAh"nt /k ^ le of a netlit al state in
aid ot cither ol the belhgmenM;
f>02. W h e n is u y*:nmJ imjÛ io condem nation for arn

nctilrdl service? *
(J) If )lyih imAsUtu n 'injuyh oepfeefad/ b/f the transport

ot individmd pimoengms mnhndmd to (,he armed forces of the
ouerny or tor the Mfmhimmhon o> information hi the interest of
Uifc enemy.
(2) It, with the knonM^y* ot the or/ner, master^ or
charterer of Mm vessel, It h* Mvoty/orting a military detach
ment of the enemy, o* one or moo* persons who, during the
voyage, lend dnecr nsfhsMngo to Mmoperations of the enemy.
(3) 11 ity takes a do or f //**> tin the hostilities.
(4) If it is unite# the oidoM< m control of an agent placed
on. hoard hy the enemy goymomonJ
(5) II it is chnrterrd enthniy hy Mm enemy government.
(/</., A r i a . 4b-4ti)>
503* What is the tight of gngwry7*
Hy Mm right ol sngm y, a bnlOgemnb may, Upon payment

of just compensation, se)/o, mg; or destroy in Case of urgent
necessity for purpose# oi offonsk or defense', neutral property
found m its ten) to# y, in enemy I&rMinty, Ot on the high seas.
504, Wbe## is imidighty *l(k*m*d terminated? What are

the effects of such lerinmotlnn / *
Neutrality is tmnmmM v/hnn the neutral state itself
joins Urn vym o# upon the eomdtodon ol peace.
158 INTKKNATIONAL LAW KKV/ttWgJl
In the first case, the hitherto neutral state will be gov*

erned by the laws of war in its dealings with the other
belligerents and by the laws of neutrality in its relations with
other states. In the second case, all states will again be goy.
erned by the laws of peace in their relations inter se.

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INTERNATIONAL LAW

CENTRAL LAWBOOK PUBLISHING CO., INC.

TH IS R E V IE W E R is prim arily intended as a guide, and m erely

Chapter I T he N ature OF I nternational

A. Charter of the United Nations ................... 160

B. Amendments to the Charter of the United

C. Statute of the International Court

T11K NATURE OF IN TERN ATIO NAL L A W

1. W hut is international law? *

International law is that branch of public law which

2. W h at are the main divisions o f international law? *

International law is divided into: - •■>

(i) The laws o f peace;

3. W h at are the sources of international law? * v

A s suggested in Article 38 of the Statute of the Interna­

4. Is every treaty or convention, a source of international

No. It will be so only if it is concluded by a 'sizable

numbor of states for the purpose of confirm ing, estab lish in g or

5. May bilateral treaties be considered a prim ary sou rce

Yes, if they are of the same/nature, contain practically ;

6. What is an international custom , and how does it d if­

An international custom is a long-established w ay o f do­

7. What are the defects of custom as a prim ary sou rce o f

One defect is the difficulty of determ ining w hen a practice

8. What are the general principles of law? Give ex­

These are rules which, because of their intrinsic merit,

9. Is the principle of stare decisis observed in the

No, because Article 59 of the Statute provides that deci­

10. When may the teachings of publicists be accepted as

Such teachings may be so considered if the publicists are

11. W hat is the basis of international law? In other

There are three theories on this matter.

, iMi'.tMii I >« \f n i »i «/ hi 111«•<(i.ft i»l i *iii *'«'i11 i<mu I law, ifnftlloti, in

\ 2. Ih "piivnle ln(rimilIommI lawH part of international

St i a lly spent lug, im " P riv a te international law " or

l!l. W hat In International com ity? D istinguish from in­

All tin<u* mid to the dealings of states with one another.

M. What Is international administrative law?

It is the body ol rules lonmdstud by states, usually in in­

lb. Would yon say that Internetional law is true law?

By conventional criteria, international law may not

16. If international law is true law, what then are its

The sanctions, or the factors that influence observance of

17. W h at are the functions o f international law? *

18. W h at is the present state o f international law?

A s always, international law is in a state of flux. The

particularly in the development of weapons, have made signifi­

19. What is the International Law Commission?

It is a body created by the General Assembly in 1947 for

(5- 20. How does international law diffe-

From the viewpoint of the monisis, there can be no differ-

21. Is international law part of municipal law?

As a member of the international community, a state is

22. What is the d octrin e o f in co r p o r a tio n ? How

The doctrine of incorporation postulates that the generally

23. Which doctrine is observed in this jurisdiction?

We observe the doctrine of incorporation as expressed in

24. Is the declaration in Article II, Section 2, o f our

Not really, because, as previously stated, the mere fact of

It cannot be regarded as a mere choice of options in the

25. What are the other provisions of our Constitu­

Am ong such provisions are the following:

26. In case of conflict between international law

From the viewpoint of international tribunals, the deci­

A s suggested in Article 38 of the Statute of the Interna

6. What is an international custom , and how does it d if

An international custom is a long-established w ay o f do

8. What are the general principles of law? Give ex

No, because Article 59 of the Statute provides that deci

, iMi'.tMii I >« \f n i »i «/ hi 111«•<(i.ft i»l i iii '«'i11 i<mu I law, ifnftlloti, in

l!l. W hat In International com ity? D istinguish from in

It is the body ol rules lonmdstud by states, usually in in

particularly in the development of weapons, have made signifi

25. What are the other provisions of our Constitu

From the viewpoint of international tribunals, the deci

32. W h at is a state? H ow are states classified as sub

A state is a group of people, more or less numerous, per

35. W hat is a composite state? Give the kinds of com

It is a union of two or more states under a central authori

- (1) Like states, although not to the same extent, it en

(1) The United Nations Charter reaffirms “ faith in fun

A member against which preventive or enforcement ac

The penalty of expulsion may be imposed upon any mem

There is no provision in the Charter allowing or pro

61. W hat are the principal organs of the United Na