02/13/2019

1. What are the elements of a State? (p. 69)

2. How long must you concur with these elements? Permanently
3. Why has Palestine not become a State? Because they have no territory.
4. Nation v State. Nation is cultural, while state is a legal term. (p. 71)
5. Classifications. “Bahala na kayo diyan” (p. 71)
6. Association (p. 73) you could not create a state within a State. You could not create an
“imperium in imperi”
7. In the case of Bangsamoro Juridical Entity. Association is preparatory to
independence. Here, there is an agreement between 2 powers – the greater power
(Philippines), and the lesser power (the BJE) in terms of revenue, internal defense,
external defense, proper representation in the OPEC and the ASEAN. According to the
Supreme Court, you could not do that because you are creating durable links while the
2 of you are maintaining a status as a State. You could not create a state within a state.
All lesser governments must conform with the Constitution.
8. De Jure and De Facto government (p. 73)
 De facto – without legitimacy but is able to exercise the functions of a
government
 De Jure – legitimate/legal government but is unable to function as government
for whatever reason
9. Recommended readings:
 Salvacion v CA (opening of foreign currency deposit of foreigner who raped a
Filipino child) – when the strict construction of the law will result into
absurdity or injustice, go into the intent or the spirit of the law.
 White Light Corp vs. City of Manila (why 3, 6, 9 hours are allowed in hotels)
10. Principle of State Continuity vs. State Succession (p. 74)
 State Continuity – the State remains a state even if there is a change in the
internal administration. Example: The Philippines in the 1986 revolution.
 State succession – what happened to the Philippines when the reign of the
government was handed over by the US. A shift of responsibility over a territory
from one state to another. It results into new rights and obligations; all other
obligations are wiped out by such change under the Clean Slate Doctrine (p.
75). But if it is only a change in government, a change in leadership, all other
obligations remain. But if it is a shift from one state to another over a certain
territory, state succession and a clean slate doctrine operate.
02/16/19
1. Rights and duties of the State (pp. 76-77). “Basahin niyo nalang yan”
2. Doctrine of Equality of States (p. 78)
 A legal construct
 Underlying doctrine: par in parem non habet imperium (there could be no
superior among equals)
 Manifestations: 1 state, no matter how powerful, is entitled only to 1 vote
3. Consequences of doctrine of equality (p. 78)
 (a) and (b) refer to equality of votes when it comes to international questions
regarding bidding necessitating the votes of the states
 (c) And (d) has something to do with jurisdiction

Exceptions to the non-suability of state: when there is consent, express (by law)
or implied (when the conduct of the state manifested that it has gone down
from the level of sovereign power to the level of an individual)
 If a state is sued, or in a case is against the government, the usual defenses are
doctrine of non-suability of the state, or the requisites for a justiciable
controversy.

4. Independence (p. 79) “Bahala na kayo diyan”

5. Obligations erga omnes (p. 79) is an obligation which is outside of, or not arising from
treaty obligations but the State’s obligations to the international community. A
reminder to the world not to close its eyes to the atrocities being committed. There is
a thin line between erga omnes and intervention. It is upon the top managemet
(president, etc.) to decide whether to intervene or not.

Jus cogens is the right or a legal basis; while erga omnes is the obligation.

6. State responsibility elements (p. 81)

7. Attribution (p. 81)
 A state is a juridical person. Individuals act in behalf of it.
 Read the case of the foreigner robbed in Cambodia. (p. 82)
 To hold a state responsible for an act of an individual, one must establish that
there is a reasonable connection between the act of such individual and the
State.
8. Case of British foreigner (p. 84)
Is there state responsibility by negligence? (Not directly answered but he talked
about lack of foresight in the case of hostaged HK nationals in the Philippines)
9. Conduct attributable to the State (p. 82) “Aralin niyo nalang yung (e) at (f), doon ako
kukuha kasi yung (a) – (d) madali lang naman eh”
02/20/19
1. Sovereignty – defined (p. 89)
 Aggregate of the 3 inherent powers of the state. It includes the absolute capacity
to govern. It is absolute (p. 89) and indivisible.
 In our jurisdiction, sovereignty lies in the people (Art. II, Sec. 2, 1987
Constitution); Estrada v. Disierto absolute right of the people to remove a
sitting government because of loss of trust.
2. Effect of change or transfer of sovereignty in municipal law (p. 90)
3. Can be bargained away (Auto-limitation of sovereignty (p. 91))
 Exception to absolute sovereignty of the state
 Only the state, through compliance with the fundamental law, can bargain away
a portion of its sovereignty through a treaty.
 Classic example: Military treaty – sovereignty was limited for military benefits
through a treaty. Full abdication of sovereignty is prohibited.
 Other examples (p. 92-94)
 It is a recognized practice in countries that foreign military forces cede away a
portion of their sovereignty over crimes committed in their military bases
4. Intervention defined (p. 95)
 Do not interfere with the internal and external affairs of one State
 Obligation erga omnes are obligations outside the treaty obligations done for
humanitarian reasons as it arose from the world’s reaction in its darkest hours
when the Jews in Germany were murdered. Does not constitute intervention.
5. Grounds for intervention (p. 96)
6. Doctrine of contingent sovereignty (p. 96)
7. R2P “Bahala na kayo diyan” (p. 96)
 8. Bar question on p. 98
9. Recognition (p. 105)
 an obligation of a state to a new and emerging state.
 The acceptance or welcoming of a new and emerging state into the
international community
 May be express or implied (p. 106)
 There can be a withdrawal of recognition because recognition is discretionary
upon the government
10. Recognition of state v recognition of government (p. 106)
 Recognition of a State – acknowledgement of a new and emerging state where
a state regards the new state as a member of the international community
 Recognition of a Government – recognition in the change of persons who
handle the affairs of the State for the time being
11. Theories of recognition (p. 108)
 Constitutive – despite acquiring the elements with a degree of permanency, a
state becomes an international person only upon recognition
 Declaratory – better view; statehood is independent of recognition
12. (Off topic) nuclear weapons: Principle of deterrence – make yourself strong so that
nobody touches you for fear of reprisal.
02/27/19
1. State immunity (Art. XVI, 1987 Constitution) – the State cannot be sued without its
consent.
 Rationale for local law: there is no legal right against the authority or entity on
which made the law on which the right depends.
 Rationale for international law: State equality – a legal construct. All states are
equal. The creation of law is to set the status quo in the international legal
order. (p. 147)
2. Suggestion (p. 150) – the process of communicating the defense of state or the
diplomatic immunity to the court in the event of a case filed against a person who
believes that he is immune from suit.
 Nature of proceeding: dismissal on the ground of lack of jurisdiction over the
person of the accused
3. Suggestion, how made: 1) Manifestation from the DFA; 2) Telegram (ewan kung
anong telegram to); 3) Motion with the appearance of the amicus curiae
4. Liang vs. People (p. 151) the principle of suggestion must be judicially reviewed, giving
the opposing party a chance to comment on the motion. The adverse party must be
heard.
5. Is the immunity of foreign states absolute? (p. 148)
 Distinguish between jure imperi and jure gestionis.
 If the State enters into a commercial transaction, it descends into the level of a
private individual and opens itself to suit.
6. Example of jure imperi: US vs. Ruiz; Republic of Indonesia vs. Vinzon (p. 148)
 State immunity establishes a close contact between the governmental function
and the object of the contract. If the object of the contract is in pursuit of the
sovereign capacity, then it is a sovereign function – jure imperi, and the State
could not be sued.
7. Example of jure gestionis: US vs. Rodrigo (p. 148)
8. RP of Balau (p. 149) Can the State be sued in the case? Yes if there is no causal
connection between the products of Balau and the sovereign function of the State.
 9. RP of Indonesia vs. Vinzon (p. 151) – submission by a foreign State to local jurisdiction
must be clear and unequivocal. See requisites of valid waiver in Art. VI, NCC
10. When the liability of the public officer would depict that public funds will be used to
pay the damages, then it is a suit against the State.
 Liang vs. People (an ADB official is exempt from criminal jurisdiction in
offenses committed in relation to the functions of his office. Oral defamation,
committed by Liang, was not an act related to his official function, hence, ADB
would not pay for damages) – not a suit against the State
 Arigo vs. Swift – constitutes a suit against the State
03/09/19
1. Legation defined (p. 117)
2. Does legation arise from a treaty? No. Diplomatic relations arise from customary
international law, not a treaty obligation.
3. Who is a diplomatic agent? (p. 117)
4. Can a State refuse to receive a diplomatic envoy? No because it is established by
customary international law. Although the State cannot refuse the request of another
State for it to receive an envoy, it may nonetheless refuse the person of the envoy by
declaring him/her persona non grata.
5. Head of mission (p. 117), ambassadors (p. 118), charge d’affaires (p. 118) “you just
read that”
6. Diplomatic immunity/inviolability defined (p. 157)
7. Are diplomatic agents entitled to immunity from the criminal jurisdiction of the
receiving State? Yes (an exception to the principle of generality of criminal law) (p.
157) this will be asked in the finals
8. Minucher vs. CA (p. 159) – immunity from criminal jurisdiction shall be determined
by a person’s official designation/title as a diplomatic envoy and not his function
 Only “diplomatic agents” under the terms of the Conventions are vested with
blanket diplomatic immunity from civil and criminal suits.
 Counterargument: principle of attribution
9. Ambassador Gaylor (p. 160) a diplomatic agent’s immunity from the jurisdiction of
the receiving State does not extend to other states. Exception: Art. 40, VCDR
10. Exceptions to immunity from civil and administrative liability (p. 160)
11. RA 75: Law which penalizes any violation of diplomatic or consular immunity; penalty:
See Sec. 4, RA 75
12. Remedy of the receiving State when a diplomatic agent commits a heinous crime:
declare such agent persona non grata under Art. 9, VCDR
13. “The diplomatic agent who committed a criminal act in the receiving State may also be
sued/punished in the sending State if the act is punishable in the latter State.”– sir. See
Art. 31(4), VCDR
14. Consuls (p. 121) – envoys whose function is administrative or economic. According to
Art. 17(1), VCCR, they may perform diplomatic acts if authorized by the receiving State
but are not entitled to diplomatic immunity.
15. Privileges and immunities of consular officers (p. 165)
16. Consul vs. diplomatic agents: on privileges and immunities (p. 166)
17. Bar 1997 question on p. 168
18. Bar 1979 question on p. 169
03/11/19
1. State jurisdiction – an adjunct of sovereignty. A State is sovereign within the bounds
of its territory.
2. Can consuls and diplomatic envoys be subject to the coercive power of the courts? No,
pursuant to Art. 44(1), VCCR. They may be requested to testify but may not be forced
to do so through a subpoena, etc.
3. Exterritoriality (p. 131); example: Embassy – an auto limitation of sovereignty
4. Bar 2009 question on p. 131 might be asked in the finals
5. Extradition defined (p. 132)
6. Under what authority may a fugitive from justice be extradited? (p. 132)
7. Extradition is not demandable in the absence of a treaty (p. 133)
8. Elements of extradition; Deportation; Extradition vs Deportation (p. 133) “just read
it”
9. Bar 1959 question on p. 134. Cancellation of passport may be done without hearing.
This is an exception to the due process of the court.
10. Ker-Frisbie Doctrine (p. 136)
11. Ker vs. Illinois (p. 137) might be asked in the finals
 what matters is that there is a warrant of arrest.
 The court will not go into how the warrant of arrest was served; what is
important is that the person of the accused is brought to the Court.
 The legality of the arrest could not be used as a defense in Court.
 Although there is intervention in the affairs of the State wherein the accused
was found and kidnapped, it is upon the 2 States to settle the matter.
12. Methods of specifying grounds for extradition (p. 138)
 limitation on listing: exclusive only to the extraditable offenses in the list
13. Principle of Dual Criminality (p. 139) – applicable in the Philippines
14. Extradition is not an ex post facto law (p. 140) even if an extraditable act is committed
before such act is punishable under the laws of both contracting parties, the State is
obliged to have the subject extradited. Ex post facto law applies only to criminal law.
15. Examples of standard treaty limitations on extradition (see enumeration on pp.140-
141)
 Rule of specialty – a person can only be tried for an offense which is stated in
the request for extradition.
16. Attentat clause (p. 142) – an exception to the rule that political crimes are not subject
to extradition.
17. May a prospective extraditee be granted bail during the pendency of the proceedings?
Yes. (p. 145) focus on the case of Olalia.
18. Bar 1996 questions on p. 146