Cabrido PIL.ppt

PUBLIC
INTERNATIONAL LAW
Mr. Benjamin A. Cabrido Jr.
Professor, USJ-R College of Law

INTERNATIONAL LAW
[Generic Sense]
 Public international law - Governs the relationship between
states and international organizations. It includes the following
specific legal field such as the treaty law, law of sea, international
criminal law and the international humanitarian law.
 Private international law, or conflict of laws - Addresses the
questions of (1) in which legal jurisdiction may a case be heard;
and (2) the law concerning which jurisdiction applies to the
issues in the case.
 Supranational law or the law of supranational organizations -
Concerns at present regional agreements where the special
distinguishing quality is that laws of nation states are held
inapplicable when conflicting with a supranational legal system.

Supranational law
 Form of international law, based on the limitation of
the rights of sovereign nations between one another.
 Distinguished from public international law: the
latter involves the United Nations, the Geneva
conventions, or the Law of the Sea, because in
supranational law, nations explicitly submit their
right to make judicial decisions to a set of common
institutions.

Supranational theory
 Normative Supranationalism: The relationships and
hierarchy which exist between community policies
and legal measures on one hand and the competing
policies and legal measures of the Member states on
the other. (The Executive Dimension)
 Decisional Supranationalism: The institutional
framework and decision making by which such
measures are initiated, debated, formulated,
promulgated and finally executed. (The Legislative-
Judicial Dimension)

Examples of Supranational Laws
 European Union law - Constitutes "a new legal order of
international law’. In the EC, sovereign nations have pooled their
authority through a system of courts and political institutions.
They have the ability to enforce legal norms against and for
member states and citizens, in a way that public international
law does not
 Union of South American Nations - An organization on the
South American continent. It declared in 2004 its intention to
establish a framework akin to the European Union by the end of
2007. It is envisaged to have its own passport and currency, and
limit barriers to trade.

Chapter 1
GENERAL PRINCIPLES
PUBLIC INTERNATIONAL LAW

What is International Law?
Traditional:
 That branch of public law which regulates the
relations of states and of other entities which have
been granted international personality.
[Schwarzenberger, p.1]
Modern:
 That law that deals with the conduct of States and
international organizations, their relations with
each other and, in certain circumstances, their
relation with persons, natural or juridical. [American
Third Restatement]

Divisions of International Law
 Law of Peace – that which consists of the rules of international
law on the rights and obligations of states in time of peace;
 Law of War [Also referred to as IHL] – that which consists of the
rules of international law on the rights and obligations of states
in time of war; and
 Law of Neutrality – that which consists of the rules of
international law on the rights and obligations of states
connected with neutrality.

Traditional Branches of IL
 Jus Gentium – Law of Nations, i.e. law of war, law of
peace, law on neutrality, etc.
 Jus Inter Gentes – Agreements among Nations, i.e.
international agreements, treaties & conventions

International Humanitarian Law
 Set of rules which seek, for humanitarian reasons, to
limit the effects of armed conflict.
 It protects persons who are not or are no longer
participating in the hostilities and restricts the
means and methods of warfare.
 Also known as the law of war or the law of armed
conflict.

 Jus in bello - law concerning acceptable
conduct in war.
 Jus ad bellum - law concerning acceptable
justifications to use armed force.

Origins of IHL
 Rooted in the rules of ancient civilizations
and religions, i.e. warfare has always been
subject to certain principles and customs.

Two Historical Streams of PIL
 The Law of The Hague or the Laws of War Proper
comprised of two conventions and one (1) protocol.
 The Law of Geneva or the International
Humanitarian Law comprising of four (4)
Conventions plus three (3) protocols.
 Both are branches of JUS IN BELLO

The Law of the Hague
 The Hague Convention of 1899
 The Hague Convention of 1907
 Geneva Protocol to the Hague Convention
 These laws determines the rights and duties of
belligerents in the conduct of operations and limits
the choice of means in doing harm." In particular, it
concerns itself with the definition of combatants,
establishes rules relating to the means and methods
of warfare, and examines the issue of military
objectives.

Basic Rules in IHL
 Persons hors de combat and those not taking part in hostilities
shall be protected and treated humanely.
 It is forbidden to kill or injure an enemy who surrenders or who
is hors de combat.
 The wounded and sick shall be cared for and protected by the
party to the conflict which has them in its power. The emblem of
the red cross or the red crescent must be respected as the sign of
protection.

 Captured combatants and civilians must be protected against
acts of violence and reprisals. They shall have the right to
correspond with their families and to receive relief.
 No one shall be subjected to torture, corporal punishment or
cruel or degrading treatment.
 Parties to a conflict and members of their armed forces do
not have an unlimited choice of methods and means of
warfare.
 Parties to a conflict shall at all times distinguish between the
civilian population and combatants. Attacks shall be directed
solely against military objectives.

Coverage of IHL
 Protection of those who are not, or no longer,
taking part in fighting; and
 Restrictions on the means of warfare – in particular
weapons – and the methods of warfare, such as
military tactics.

Meaning of Protection under IHL
 International humanitarian law protects those who
do not take part in the fighting, such as civilians and
medical and religious military personnel.
 It also protects those who have ceased to take part,
such as wounded, shipwrecked and sick
combatants, and prisoners of war.

International Humanitarian Laws
 Geneva Conventions of 1949 Supplemented by: Additional
Protocols of 1977 relating to the protection of victims of armed
conflicts
 1954 Convention for the Protection of Cultural Property in the
Event of Armed Conflict plus its two protocols:
 1972 Biological Weapons Convention
 1980 Conventional Weapons Convention and its five protocols
 1993 Chemical Weapons Convention
 1997 Ottawa Convention on anti-personnel mines

Application of IHL
 Applies only to armed conflict
 Does not cover internal tensions or disturbances
such as isolated acts of violence.
 Applicable only once a conflict has begun, and then
equally to all sides regardless of who started the
fighting.

Similarities and Differences: IHL and
Human Rights Law
 International humanitarian law and international human rights
law are two distinct but complementary bodies of law.
 Both seek to protect the individual from arbitrary action and
abuse.
 Human rights are inherent to the human being and protect the
individual at all times, in war and in peace.
 International humanitarian law only applies in situations of
armed conflict. Thus, in times of armed conflict international
human rights law and international humanitarian law both
apply in a complementary manner.

Sharia
 Body of Islamic religious law.
 Means "way" or "path to the water source."
 Legal framework within which the public and
private aspects of life are regulated for those living
in a legal system based on Islamic principles of
jurisprudence and for Muslims living outside the
domain.
 Deals with many aspects of day-to-day life,
including politics, economics, banking, business,
contracts, family, sexuality, hygiene, and social
issues.

Primary Sources of Islamic Law
 Qur'an - Central religious text of Islam. Muslims believe the
Qur’an to be the book of divine guidance and direction for
mankind, and consider the original Arabic text to be the final
revelation of God.
 Sunnah - literally means “trodden path,” and therefore, the
sunnah of the prophet means “the way and the manners of the
prophet”. Terminologically, the word ‘Sunna’ in Sunni Islam
means those religious achievements that were instituted by the
Islamic prophet Muhammad during the 23 years of his ministry
and which Muslims initially obtained through consensus of
companions of Muhammad, and further through generation-to-
generation transmission.

Secondary Sources of Islamic Law
 Consensus among Muslims jurists
 Analogical deduction or Al-Ra'y
 Independent reasoning
 Benefit for the Community
 Custom

Siyar (International Law)
 Written at the end of the 8th century by Muhammad
al-Shaybani, an Islamic Jurist.
 Dealt both public and private International Law.
 General Subjects: Islamic ethics, Islamic economic
jurisprudence and Islamic military jurisprudence.

Other Contemporary Subjects in Siyar
 Law of treaties
 Treatment of diplomats, hostages, refugees and
prisoners of war
 Right of asylum
 Conduct on the battlefield
 Protection of women, children and non-combatant
civilians
 Contracts across the lines of battle
 Use of poisonous weapons
 Devastation of enemy territory

Islamic Rulings on Warfare
 Stop, O people, that I may give you ten rules for your guidance
in the battlefield.
 Do not commit treachery or deviate from the right path.
 You must not mutilate dead bodies.
 Neither kill a child, nor a woman, nor an aged man.
 Bring no harm to the trees, nor burn them with fire, especially
those which are fruitful.
 Slay not any of the enemy's flock, save for your food.
 You are likely to pass by people who have devoted their lives to
monastic services; leave them alone.

Major Islamic Principles Adopted by
Common Law
 Equity and Good Faith - precursor to the concept of
pacta sunt servanda in civil law and international law.
 Made major contributions to international
admiralty law.

 Muslim sailors being "paid a fixed wage “in advance” with
an understanding that they would owe money in the event of
desertion or malfeasance.
 Consistent with Islamic conventions" in which contracts
should specify “a known fee for a known duration”
 In contrast to Roman and Byzantine sailors who were
"stakeholders in a maritime venture, in as much as captain
and crew, with few exceptions, were paid proportional
divisions of a sea venture’s profit, with shares allotted by
rank, only after a voyage’s successful conclusion."

 Muslim jurists also distinguished between "coastal
navigation, or cabotage," and voyages on the “high seas” and
 Shippers are made "liable for freight in most cases except the
seizure of both a ship and its cargo.“
 Islamic law also "departed from Justinian’s Digest and the
Nomos Rhodion Nautikos in condemning slave jettison“
 Islamic Qirad - precursor to the European commenda or
limited partnership.

International Law distinguished
with Municipal Law
 Monist: No distinction since there is oneness or unity of all law;
that international law cannot be comprehended without the
assumption of a superior legal order from which the various
systems of municipal law are, in a sense, derived by way of
delegation.

To the Dualist, who believes in the dichotomy of the law: Yes,
there are distinctions, to wit:
 ML is issued by a political superior for observance by those
under its authority, while IL is not imposed but adopted by
states as a common rule of action;
 ML consists of enactments of law-making authority, while IL
is derived from such sources as international customs,
conventions or general principles of law;

 ML regulates the relations of individuals among themselves or
with their own states, whereas IL applies to the relations inter
se of states and other international persons;
 Violations of ML are redressed through local administrative
and judicial processes, whereas questions of IL are resolved
through state-to-state transactions ranging from peaceful
methods like negotiations and arbitration to the hostile
arbitrament of force like reprisals and even war; and
 Breaches of ML entail individual responsibility, while
responsibility for infractions of IL is usually collective in the
sense that it attaches to the state and not to its nationals

Incorporation v. Transformation
 Doctrine of Incorporation: It is a universally accepted postulate
that, with or without an express declaration to this effect, states
admitted to the family of nations are bound by the rules
prescribed by it for the regulation of international intercourse. By
this doctrine, international law is binding ex proprio vigore (by its
own force).
 Doctrine of Transformation: The generally-accepted rules of
international law are not per se binding upon the state but must
first be embodied in legislation enacted by the lawmaking body
and so transformed into municipal law.

In the Philippines, what doctrine is
being followed?
 The doctrine of incorporation as expressed in Sec. 2,
Art. II, 1987 Constitution: “The Philippines renounces
war as an instrument of national policy, adopts the
generally accepted principles of international law as part
of the law of the land, and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity with all
nations” [underscored is the so-called ‘incorporation clause]

Kuroda v. Jalandoni,
G.R. No. L-2662, March 28, 1949
Held:
 Petitioner argues that respondent Military Commission has no
jurisdiction to try petitioner for acts committed in violation of the
Hague Convention and the Geneva Convention because the
Philippines is not a signatory to the first and signed the second
only in 1947.
 It cannot be denied that the rules and regulations of the Hague
and Geneva conventions from part of and are wholly based on
the generally accepted principles of international law.

 In fact, these rules and principles were accepted by the two
belligerent nations, the United States and Japan, who were
signatories to the two Conventions.
 Such rules and principles, therefore, form part of the law of our
nation even if the Philippines was not a signatory to the
conventions embodying them, for our Constitution has been
deliberately general and extensive in its scope and is not
confined to the recognition of rules and principles of
international law as contained in treaties to which our
government may have been or shall be a signatory.

Yamashita v. Gen. Styer,
G.R. No. L-129
Held:
 War is not ended simply because hostilities have ceased. After
cessation of armed hostilities, incidents of war may remain
pending which should be disposed of as in time of war.
 An important incident to a conduct of war is the adoption of
measures by the military command not only to repel and defeat
the enemies but to seize and subject to disciplinary measures
those enemies who in their attempt to thwart or impede our
military effort have violated the law of war. (Ex parte Quirin, 317
U.S. 1, 63 Sup. Ct. 2)

 Indeed, the power to create a military commission for the trial
and punishment of war criminals is an aspect of waging war.
 And, in the language of a writer, a military commission has
jurisdiction so long as a technical state of war continues. This
includes the period of an armistice, or military occupation, up to
the effective date of a treaty agreement. (Cowles, Trial of War
Criminals by Military Tribunals, American Bar Association Journal,
June, 1944)

Co Kim Chan v. Valdez Tan Keh, G.R.
No. L-5, Sept. 17, 1945
On the contention that MacArthur’s Proclamation issued on
October 23, 1944 invalidated all judicial proceedings during the
Japanese occupation, it was
Held: Taking into consideration the fact that according to a well-
known principle of international law, all judgments and judicial
proceedings which are not of a political complexion of the de
facto government during the Japanese military remained so after
the occupied territory had come again into the power of the
titular sovereign, it should be presumed that it was not and
could not have been the intention of General MacArthur, in
using the phrase ‘processes of any other government’ in said
proclamation, to refer to judicial processes, in violation of said
principle in international law.

Treaty v. Constitution v. Statute
 If the conflict is with the Constitution: uphold the Constitution
(Sec. 5[2][a],Art. VIII, 1987 Constitution;
 If conflict is with statute: The doctrine of incorporation applies.
A treaty may repeal a statute, and a statute may repeal a treaty.
Note: Doctrine of Lex posterior derogat priori – that which comes
last in time, will usually be upheld by the municipal tribunal.
 With international tribunal deciding: international law is
superior to municipal law because international law provides the
standard by which to determine the legality of a State’s conduct.

Ichong v. Hernandez, 101 Phil. 115
Held:
 The Retail Trade Nationalization Law prevails over
the Treaty of Amity with China and the Universal
Declaration of Human Rights because the law was
passed in the exercise of police power of the State,
and police power cannot be bargained away
through the medium of a treaty or a contract

Gonzales v. Hechanova,
G.R. L-21897, Oct. 22, 1963
 On the validity of the executive agreement signed by the
President for importation of rice from Burma and Vietnam
without first securing from the National Economic Council the
requisite certification, it was:
Held:
 Although the President may, under the American constitutional
system, enter into executive agreements without previous
legislative authority, he may not, by executive agreements, enter
into a transaction which is prohibited by statutes enacted prior
thereto.

Tanada v. Angara,
G.R. 118295, May 2, 1997
Held:
 By the doctrine of incorporation, the country is bound by
generally accepted principles of international law, which are
considered to be automatically part of our own laws.
 One of the oldest and most fundamental rules in
international law is pacta sunt servanda — international
agreements must be performed in good faith.
 A treaty engagement is not a mere moral obligation but
creates a legally binding obligation on the parties . . . A state
which has contracted valid international obligations is bound
to make in its legislations such modifications as may be
necessary to ensure the fulfillment of the obligations
undertaken.

 In the foregoing treaties, the Philippines has effectively agreed to
limit the exercise of its sovereign powers of taxation, eminent
domain and police power.
 The underlying consideration in this partial surrender of
sovereignty is the reciprocal commitment of the other
contracting states in granting the same privilege and immunities
to the Philippines, its officials and its citizens.
 The same reciprocity characterizes the Philippine commitments
under WTO-GATT.

Basis of International Law
 Law of Nature School (Samuel Pufendorf): That there is a natural
ad universal principle of right and wrong, independent of
mutual intercourse or compact, which can be discovered and
recognized by every individual through the use of his reason and
conscience. Since individuals compose the State whose will is but
the collective will of the inhabitants, the State also becomes
bound by the law of nature.

 The Positivist School (Richard Zouche): The binding force of
international law is derived from the agreement of the States to
be bound by it. In this context, international law is not a law of
subordination but of coordination;
 The Eclectic or Grotian School (Emerich de Vatel/Christian Wolff):
Insofar as it conforms to the dictates of right reason, the
voluntary law may be said to blend with the natural law and be,
indeed, an expression of it. In case of conflict, the natural law
prevails, being the more fundamental law.

Is International Law a true Law?
 If by law we mean, following the definition of the English school
of analytic and positive jurisprudence founded by Bentham and
Austin, a rule of conduct laid down for the guidance of an
intelligent being by another intelligent being having power over
him, then international law is not true law.
 But if by law we mean, following the definition of the school of
historical jurisprudence founded by the German jurist Savigny
and English jurist Sir Henry Maine, any rule recognized as a
binding rule and observed as such, then international law is true
law.

Public International Law v. Private
International Law
 Public International Law deals with the conduct of States and
international organizations, their relations with each other and,
in certain circumstances, their relation with persons, natural or
juridical.
 Private International Law (appropriately named Conflict of
Laws) embraces those universal principles of right and justice
which govern the courts of one state having before them cases
involving the operation and effect of the laws of another state or
country. (Minor, Conflict of Laws, p. 4)

As to persons on whom they operate:
 Public International law deals for the most part with nations as
such, while Private International Law deals with private
individuals.
As to the transactions to which they relate:
 The former recognizes in general only transactions in which
sovereign states are interested, while latter assumes control over
transactions strictly private in nature, in which the states as such
has generally no interest.

As to the remedies applied:
 In the contest between states arising under the law of nations,
recourse is had first and generally to diplomatic channels and
should such fail, to retorsion, reprisal, and other means short of
war and in extreme cases to war.
 Meanwhile, in cases to which private international law is
applicable, recourse is had to judicial tribunals acting under the
authority and in accordance with the rules of procedure of the
country which they sit. (Minor, Ibid, p. 213)

Public International v. International
Ethics
 International ethics (or morality) deals with the principles which
should govern international relations from the higher standpoint
of conscience, justice, or humanity. (Hershey, Essential of
International Law, p.2)

Public International Law v.
International Comity
 International comity, in connection with public international
law, relates to those rules of courtesy, etiquette, or goodwill
which are or should be observed by governments in their
dealings with one another on grounds of convenience, honor, or
reciprocity. (Hershey, Ibid, p.3)
Examples:
 Extradition of criminals in the absence of express agreement or
treaty;
 Observance of certain diplomatic forms and ceremonies; and
 Faith and credit given in each state to the public acts, records,
and judicial proceedings of other states

International Diplomacy
 International diplomacy (policy) in the wider sense
relates to objects of national or international policy
and the conduct of foreign affairs or international
relations. It is generally based upon considerations
of expediency or national interest rather than upon
those of courtesy, humanity, or justice. (Hershey, Ibid,
p. 3-4)

International Administrative Law
 International administrative law is that body of laws and
regulations created by the action of international conferences or
commissions which regulate the relations and activities of
national and international agencies with respect to those material
and intellectual interest which have received an authoritative
universal recognition.

 It relates to such matters as international communication by
means of postal correspondence and telegraphy,
international transportation, copyright, crime, sanitation, etc.
 It is created by international congresses or conferences and
commission, and is administered by international
commission and bureaus as well as by national agencies.

Aims of Public International Law
 To eliminate absolutism and the preponderance of force;
 To attempt to determine the rights of the people in relation to
states and governments; and
 To fix the rules governing them, as well as the measures of legal
protection designed to guarantee and safeguard such rights [Fiori,
Elements of Private International Law, p. 35]

Object of International Law
 To investigate and determine the international rights and
reciprocal duties which must belong to every member of such
society, and to fix the legal rules governing such rights and
duties and the legal measures designed to protect their
fulfillment. [Fiore, Ibid, p.35]

Sanctions of International Law
 Appeal to public opinion;
 Publication of correspondence;
 Censure by Parliamentary vote;
 Demand for arbitration with the odium attendant on a refusal to
arbitrate;
 Rupture of relations;
 Reprisals, etc. [North Atlantic Fisheries Arbitration, Scott, Hague Court
Reports (196), p. 141]

Reasons Why States Obey the
Precepts of International Law
 Belief in the inherent reasonableness of international law and in
their common conviction that its observance will redound to the
welfare of the whole society of nations;
 Because of normal habits of obedience ingrained in the nature of
man as a social being;

 Respect for world opinion or desire to project an agreeable
public image in order to maintain goodwill and favorable
regard of the rest of the family of nations;
 Constant and reasonable fear that violations of international
law might visit upon the culprit the retaliation of other
states;
 Moral influence of the UN and its power to employ physical
force when warranted.

Enforcement of International Law
Upon States in Time of Peace
 Channels of diplomacy between contending states or through
international organizations or regional groups such as the UN,
ASEAN, OAS, EU. If grievance is brought before the UN through
the Security Council or the ICJ, these bodies may thereafter
adopt such measures as may be necessary to compel compliance
with international obligations or vindicate the wrong committed.

 By recourse to measure like mediation, arbitration, commissions
of inquiry, rupture of diplomatic relations, retorsion or
retaliation, display of force, use of force, reprisal, pacific
blockade, embargo, non-intercourse.
 A State may treat the rules of international law as part of its
municipal law. Its legislature may implement such rules by
prescribing the norms for their observance and providing
specific penalties for their violations. Examples: law on genocide
and offense against diplomatic representatives.

Enforcement of International Law in
Time of War
 Through the war agencies of the belligerent states and by their
prize courts; and
 By neutral states through their respective executive, legislative
and judicial departments.

Chapter 2
SOURCES OF INTERNATIONAL LAW

Sources of International Law
Primary:
 International Treaties and Conventions
 International Customs
 General Principles of Law
Secondary:
 Judicial decisions; and
 Writings of publicists

International Treaties and
Conventions
Treaties may be divided into 2 classes:
 Legislative in character – Those that formulate openly and
avowedly rules of conduct meant to be binding on the members
of the family of nations as a body or at least on all of them which
are directly concerned with the matter referred to in the treaty.
Examples: (3) conventions of the Hague Conference of 1899, (13)
conventions of the Hague Conference of 1907, Warsaw
Convention, UN Charter.

 Declaratory of international law - those that simply state rules
previously recognized by the general body of nations. Examples:
conventions in the Hague setting forth a code for the regulations
of war on land; the rules of the Declaration of London of 1909 on
blockade and contraband; and portions of the conventions of the
Armed Neutrality of 1780 and 1800.

International Customs
 Must be evidenced of a general practice accepted as binding law
through persistent usage over a long period of time. Examples:
Right of Angary given to a belligerent state to destroy or use
neutral property in cases of extreme necessity; the maritime rules
first set forth in the Rhodian Law; exterritoriality; extra-
territoriality; rules of blockade.
 Requisites: a) must be the prevailing practice by a number of
states; b) must be repeated over a considerable period of time;
and must be attended by opinio juris (sense of legal obligation).

Custom v. Usage
 While both connote those long established practices by states,
they differ in that in usage, there is no attendance of a sense of
legal obligation, i.e. the practice is not couples with the
conviction that it is obligatory and right. Example of a usage is
the old time ceremonial in the open sea which, although
generally observed before, were generally not regarded as
compulsory.

Soft Law v. Hard Law
 The term "soft law" refers to quasi-legal instruments which do
not have any legally binding force, or whose binding force is
somewhat "weaker" than the binding force of traditional law,
often contrasted with soft law by being referred to as "hard law".

Examples of Soft Law
 Most Resolutions and Declarations of the UN General Assembly,
for example, the Universal Declaration of Human Rights;
 Elements such as statements, principles, codes of conduct, codes
of practice etc.; often found as part of framework treaties;
 Action plans (for example, Agenda 21);
 Other non-treaty obligations

Soft Law May Become Hard Law
 Soft law instruments are usually considered as non-binding
agreements which nevertheless hold much potential for
morphing into "hard law" in the future.
 This "hardening" of soft law may happen in two different ways:
a) when declarations, recommendations, etc. are the first step
towards a treaty-making process, in which reference will be
made to the principles already stated in the soft law instruments;
and
b) When non-treaty agreements are intended to have a direct
influence on the practice of states, and to the extent that they are
successful in doing so, they may lead to the creation of
customary law.

Utility of Soft Law
 Convenient option for negotiations that might otherwise stall if
legally binding commitments were sought at a time when it is
not convenient for negotiating parties to make major
commitments at a certain point in time for political and/or
economic reasons but still wish to negotiate something in good
faith in the meantime.
 As a flexible option - it avoids the immediate and
uncompromising commitment made under treaties and it also is
considered to be potentially a faster route to legal commitments
than the slow pace of customary international law.

 used to evidence opinio juris on applying or interpreting a
treaty.
 in the field of international environmental law where states
have been reluctant to commit to many environmental
initiatives when trying to balance the environment against
economic and social goals. It is also important in the field of
international economics law and international sustainable
development law.

Opinio Juris or Opinio Juris Sive
Necessitatis
 the belief that an action was carried out because it was a legal
obligation.
 subjective element which is used to judge whether the practice of
a state is due to a belief that it is legally obliged to do a particular
act .
 sometimes difficult to establish opinio juris, but where there is
consistent practice over a length of time, the need for opinio juris
is lessened.
 Where there is more sporadic state practice, the presence of
opinio juris becomes more important .

Customary International Law
 Aspects of international law that derive from custom.
 Coupled with general principles of law and treaties, custom is
considered by the International Court of Justice, jurists, the
United Nations, and its member states to be among the primary
sources of international law.
 For example, laws of war were long a matter of customary law
before they were codified in the Hague Conventions of 1899 and
1907, Geneva Conventions, and other treaties.

Examples of Customary
International Law
 various international crimes;
 a state which carries out or permits slavery,
genocide, war of aggression, or crimes against
humanity is always violating customary
international law;
 principle of non-refoulement,
 immunity of visiting foreign heads of state; and
 right to humanitarian intervention.

Principle of Jus Cogens
 Customary international law which has the status of a
peremptory (i.e., absolute, uncompromising, certain) norm in
international law cannot be permitted to be derogated.
 Peremptory norm – is a norm accepted and recognized by the
international community of states as a rule, from which no
derogation is permitted.
 Examples: slave trade, piracy, terrorism, human rights

General Principles of Law
 These are rules derived mainly from law of nature which are
observed and recognized by civilized nations.
 Examples: res judicata, prescription, pacta sunt servanta, estoppel,
and ex aequo et bono (what is good and just).

Decision of Courts
 Most authoritative are those rendered by ICJ of the Hague;
 Decisions from other international tribunals or arbitration bodies
and even national tribunals may be resorted to provided they
show correct application and interpretation of the law of nations;
 Stare Decisis inapplicable in international law.
 Art. 59, ICJ Statute: “The decision of the Court has no binding
force except between the parties and in respect to that particular
case.”

International Court of Justice,
The Hague

Art. 38, Statute of the ICJ
1. The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall
apply:
a. international conventions, whether general or particular,
establishing rules expressly recognized by the contesting states;
b. international custom, as evidenced of a general practice
accepted as law;

c. the general principles of law recognized by civilized
nations;
d. subject to the provisions of Article 59, judicial decisions
and the teaching of the most highly qualified publicists of the
various nations, as subsidiary means for the determination of
rules of law.
2. This prohibition shall not prejudice the power of the Court to
decide a case ex aequo et bono (what is good and just), if the
parties agree thereto.

Interpretation of Art. 38, ICJ
 Although the provision is silent on the question of whether the
three primary sources have the same hierarchic value, by
practice, treaties take precedence over customs, and customs
over general principles of law.
 Exception: Principle of Jus Cogens.

Writings of Publicists
 Must be fair and unbiased representation of international law ;
and
 Author must be an acknowledged authority in the field.
Mere credentials are insufficient as author may have been
motivated by:
 National pride or interest; or
 Error in interpreting a rule in international law; or
 In supposing the existence of a rule which does not in fact form
part of the law of the nations.

Chapters 3, 4 & 5
INTERNATIONAL COMMUNITY, THE UN &
CONCEPT OF STATE

Subject v. Object
 A Subject is an entity that has rights and responsibilities under
international law. It has an international personality; it can be a
proper party in transactions involving the application of the law
of nations among members of the international community.
 An Object is a person or thing in respect of which rights are held
and obligations assumed by the subject. It is not directly
governed by the rules of international law. Its rights are received,
and its responsibilities imposed, indirectly through the
instrumentality of an international agency.

Subjects in International Law
 States
 Colonies and Dependencies
 Mandates and Trust Territories
 The Holy See
 The UN
 Belligerent communities
 International administrative bodies
 To certain extent: individuals

State Defined
 A State is a group of people, living together in a fixed territory,
organized for political ends under an independent government,
and capable of entering into international relations with other
states.

State v. Nation
 A state is a legal concept, a nation is a racial or ethnic concept.
 The term nation as evidenced by its etymology (nasci, meaning to
be born) indicates a relation of birth or origin and implies a
common race, usually characterized a community of language
and customs.
 A nation may comprise several states. Example: Arab nation. Or
a state of several nations, i.e. the United States, Russia

Elements of a State
 People: They must be a group of individuals, of both sexes,
living together as a community. They must be sufficient in
number to maintain and perpetuate themselves. Casual
gathering of people being stranded or a community of pirates
cannot constitute a state.
 Territory: That fixed portion on the earth’s surface occupied of
the inhabitants. It may be as large as Russia or as small as
Monaco with just 0.5 square mile in area or San Marino with just
38 square miles in area.

 Government: is the agency through which the will of the state is
formulated, expressed and realized. It must at least be organized
and exercising control over and capable of maintaining law and
order within the territory. The identity of the state is not affected
by the changes in government.

 Sovereignty: The supreme and uncontrollable power inherent in
a state by which the state is governed. Meanwhile,
independence, which is the power of the state to direct its own
external affairs without interference or dictation from other
states, is the external manifestation of sovereignty.

Other Suggested Elements
of A State
 Degree of Civilization –
 Recognition from family of nations such as admission to the UN.
It may also mean an act by which a state acknowledges the
existence of another state, of another government or of a
belligerent community indicating willingness to deal with the
entity as such under international law.

Concept of Failing or Failed State
 A state could be said to "succeed" if it a monopoly
on the legitimate use of physical force within its
borders. [Max Weber]
 A condition of “state collapse” – i.e., a state that can
no longer perform its basic security and
development functions and that has no effective
control over its territory and borders. [Crisis States
Research Center]
 A failed state is one that can no longer reproduce
the conditions for its own existence

Manifestations of a Failed State
 Loss of physical control of its territory, or of the
monopoly on the legitimate use of physical force
therein;
 Erosion of legitimate authority to make collective
decisions;
 Inability to provide reasonable public services, and
 Inability to interact with other states as a full
member of the international community. [Fund for Peace,
Washington D.C.]

Indicators of State Vulnerability
 Social:
1. Demographic pressures
2. Massive movement of refugees and internally displaced peoples
3. Legacy of vengeance-seeking group grievance
4. Chronic and sustained human flight
 Economic:
1. Uneven economic development along group lines
2. Sharp and/or severe economic decline
 Political:
1. Criminalization and/or delegitimization of the state
2. Progressive deterioration of public services
3. Widespread violation of human rights
4. Security apparatus as ‘state within a state’
5. Rise of factionalized elites
6. Intervention of other states or external factors

Concept of Disappearing or
Deterritorialized States
 Effect of sea level rise brought about by climate
change.
 Theory of ambulatory baselines
 Arts. 5 & 7 UNCLOS provide on how to draw state
baselines.
 Article 76(9) fixes the outer boundary of the
extended continental shelf
 But does not indicate whether the outer boundary of
maritime zones moves as baselines – or the low-
water mark on which they are based – move.

 Where an island state is rendered uninhabitable by
sea level rise, it would lose its exclusive economic
zone and its continental shelf.
 Should the island disappear entirely, it would lose
its territorial sea as well.
 These changes in maritime boundaries and zones
may result to inter-state conflict or spark disputes
over navigational rights and sovereign right over
marine resources.

Preventive measures
 Artificial conservation like shoreline protection,
reinforcement and sea defenses which are allowed
under international law. Example: Japan’s
Okinotorishima island.
 Drawback: Cost and futility in fighting nature.

Legal solution for deterritorialized states
 Abandon the ambulatory theory on baselines.
 Adopt a new rule in customary or conventional international law
freezing the outer limits of maritime zones where they were
located at a certain moment in accordance with the general rules
in force at the time.
 Pre-existing disputes should not be covered with the freeze.

Dilemma in treatment of disappearing or
disappeared states
 Rule: existence of maritime zones depends on the existence of
states.
 Traditional requirement: territory and permanent population
occupying a state’s territory.
 Former maritime zones revert to the high seas or subsumed by
other states where the law of the sea permits?
 States under threat: Papua New Guinea, Kiribati, Tuvalu,
Maldives, Philippines and other island states.

Conventional solution to
disappearing states
 Acquire territory from other state through treaty of cession.
Jurisdiction over maritime zones will continue to inure to the
relocated state.
Antecedents:
 Alaska and RP purchase by the U.S.;
 Evacuation by half of Iceland inhabitants to Canada aftermath of
volcanic eruption in 1870. The new colony was named New
Iceland.
 Drawbacks: price of cession & difficulty in envisaging states
agreeing to such set-up; relationship between the host state and
the acceded state like who would represent in international
relations.

New Rule Evolving
 Recognition of a new category of deterritorialized
states.
 Based on the notion of functional or non-territorial
sovereignty under the context of ‘government in
exile’.
 Examples: Palestinian Authority; Indigenous
nations of Maori, Inuit and Tibetans; Taiwan & EU.

State Capacity
 Entity possessed with the essential elements is imbued with
capacity as state;
 Entitles such entity to membership in the family of nations;
 Not ipso facto since recognition is deemed a political act;
 State capacity may not be total. It may be restricted due to treaty
commitments or limited resources.

 Examples: Switzerland as being ineligible for UN
membership due to its permanent neutralization;
Liechstentstein was barred from joining the League of
Nations in 1920 owing to its limited size, small population,
lack of an army, geographical position and deputation to
other states of some of the attributes of sovereignty; also
Andorra, Monaco and San Marino.

Classification of States
 Independent States
- Simple
- Composite: Real Union, Federal Union, Confederation,
Personal Union and Incorporate Union.
 Neutralized States
 Dependent States
- Protectorate
- Suzerainty

Simple State
 A single and centralized government is established exercising
power over both internal and external affairs of the state.
 Examples: Philippines, Netherlands, Japan

Composite State: Real Union
 Two or more states are merged under a unified authority;
 A single international person is formed upon merger through
which they act as one entity but retain their separate identities.
 Examples: Norway & Sweden [1815-1905], Austria & Hungary
[1867-1918], and Egypt & Syria [1958-1961]

Composite States: Federal Union
 Two or more sovereign states are combined and ceased to be
states upon merger.
 A new state is created with full international personality.
 Examples: USA, Russian Federation, German Empire of 1871

Composite States: Confederation
 Confederated states retain their internal sovereignty and to some
degree, also their external sovereignty;
 A collective body is created to represent them as a whole for
certain limited and specified purpose;
 Member states can still maintain international relations and
retain their international personality although treated as
imperfect states.
 Example: Confederation of German States in 1866

Composite States: Personal Union
 Two or more states are brought together under the rule of the
same monarch but the merged states does not become one
international person.
 Each state remains a state and an international person but their
external policies are directed by the same ruler
 Examples: Belgium and the former Congo Free State [1885-1905]

Composite States: Incorporate Union
 Two or more states form a central authority to direct their
external and internal affairs;
 It is distinguished from real union in that for the latter, only the
external affairs of member-states are placed in a central
authority.
 Example: United Kingdom of Great Britain and Ireland.

Neutralized States
 One which by international agreement is bound to abstain from
offensive hostilities and from acts which would involve such
hostilities, in consideration of guarantee of its independence and
integrity.
 Accorded upon a state’s own request because it is weak and
small; or granted due to its geographical situation such that its
occupation may upset the balance of power in that region.

 Neutralization does not destroy the character of a state as such.
 Neutralized state can still enter into treaties involving peaceful
relations.
 Generally, cannot resort to war except in self-defense.
 Examples: Switzerland [Congress of Vienna, 1815]; and Laos
[1954 signed by 14 states]

Neutralized v. Neutral State
 A neutralized state is one which by international agreement is
bound to abstain from offensive hostilities and from acts which
would involve such hostilities, in consideration of guarantee of
its independence and integrity. Whereas, a neutral state is one
which is not a party to the war.
 A neutralized state exists in time of peace and in time of war.
Whereas, a neutral state exists only in time of war.

 In case of neutralized state, the status of neutrality is guaranteed
by explicit agreement of a limited number of powers,
accompanied by a definite sanction and a corresponding
obligation on the part of the neutralized state to remain as such;
 Meanwhile, in the case of neutral state, there are no specific
guarantees, except the general rules of international law; there
are no special sanctions but only the usual sanctions furnished
thereby; and there is no obligation on the part of the neutral state
to maintain its attitude of neutrality.

Dependent States
 A legal oxymoron as statehood implies idea of independence.
 Considering their number and for want for better term, they are
called as such.
 They are states subject to control by other states in their external
affairs.
 Two categories: Protectorate & Suzerainty

Protectorate
 In the American sense: A state whose complete independence is
limited by the control of another,
 In its international sense: Originally means a state placed under
the protection of another state by virtue of a treaty arrangement.
Lately, refers to the territory of a country which although not a
state in the strict international sense, remains nonetheless
independent.
 Examples: In the American sense: Cuba and Panama; In its
international sense: Republic of San Marino under Italy, Korea
and Manchuoko under Japan before WW 2

Suzerainty
 While a protectorate is established at the request of the weaker
state for the protection of a strong power,
 In Suzerainty, it 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.

Vatican City
 Area: 108.7 acres;
 Population: 900
 Sovereignty exercised by the Holy See or the Supreme Pontiff
[Pope];
 Became state by virtue of the Lateran Treaty in 1929;
 Treated as such since it exercises certain prerogatives of states,
e.g. treaty-making and diplomatic intercourse.

The European Union As
Supranational Law
 The European Union is a concept without definition. The world
has never seen such a system.
 It is the first and only example of a near supra-national legal
framework, where sovereign nations have pooled their authority
through a system of courts and political institutions.
 It constitutes a new legal order in international law, designed to
mitigate the issue of the differing legal frameworks of member
states when dealing on a multinational basis.

Other International Persons
 The UN
 The Holy See [See Holy See v. Del Rosario, 238 SCRA 524]
 Colonies and Dependencies
 Mandates and Trust Territories
 Association [Vide Prov. Of North Cotabato v. GRP Panel, G.R. 183591, Oct.
14, 2008]
 Belligerent Communities
 International Administrative Bodies
 To some extent: Individuals

The United Nations: Historical
Development
 The League of Nations organized after WW 1 and dissolved in
1946;
 The London Declaration, June 12, 1941;
 The Atlantic Charter, Aug. 14, 1941;
 Declaration by United Nations, Jan. 1, 1942;
 Moscow Declaration, Oct. 30, 1943;
 Dumbarton Oaks Proposal, Washington, Aug. – Oct. 1944;
 Yalta Conference, Crimea, Feb. 11, 1945;
 San Francisco Conference, Apr. 25 – June 28, 1945 [delegates
from 50 nations unanimously approved the UN Charter]
 Oct. 24, 1945: UN Charter came into force.

League of Nations
 Founded as a result of the Treaty of Versailles in 1919–1920, a
peace treaty that officially ended World War I between the
Allied and Associated Powers and Germany ;
 League lacked armed force and so dependent on the so-called
Great Powers

The London Declaration
 June 12, 1941: several members of the British Commonwealth
and a number of government-in-exile met.
 Declared to work together, and with other peoples, in war and in
peace, toward economic and social development.

Atlantic Charter & Declaration By
United Nations
 Aug. 14, 1941 – US Pres. Franklin Delano Roosevelt and UK
Prime Minister Winston Churchill signed the Atlantic Charter.
 It expressed their hope for ‘a peace which will afford to all
nations the means of dwelling in safety within their own
boundaries and which will afford assurance that all men in all
lands may lead out their live in freedom from fear and want.’
 The foregoing principle was later embodied in the Declaration by
United Nations signed on Jan. 1, 1942 by 26 countries and later
adhered to by 21 other countries.

Moscow Declaration
 First step toward creating the UN;
 Signatories: China, USSR, UK & US;
 Date: Oct. 30, 1943
 Recognized ‘ the necessity of establishing at the
earliest practicable date a general international
organization, based on the principle of the sovereign
equality of all peace-loving states, and open to
membership by all such states, large and small, for
the maintenance of international peace and
security.’

Dumbarton Oaks Proposals
 Initial blueprint of the UN prepared during the conference at
Washington DC between Aug. – Oct. of 1944.
 Participated in by the UK, USSR, US and later joined by China.
 Conceived the idea of forming the Security Council composed of
the (5) conferees plus France as its permanent members.

Yalta Conference in the Crimea
 February 11, 1945: Voting rules in the Security Council known as
the Yalta Formula were agreed upon.
 The conferees also called a general conference to be held at San
Francisco on April 25, 1945 for the preparation of the UN Charter
‘along the lines proposed in the informal conversations at
Dumbarton Oaks.’

San Francisco Conference
 Attended by (50) nations between Apr. 25 to June 26, 1945.
 Prepared and unanimously approved the charter of the UN.
 Charter came into force on Oct. 24, 1945 after the members of the
Big Five and majority of the other signatories filed their
instruments of ratification.

The UN Charter
 Composed of the Preamble, (111) Articles and Concluding
provisions.
 Annexed in the charter is the Statute of the ICJ.
Dual character of the charter:
 As a treaty – because it derives its binding force from the
agreement or the parties to it.
 As a constitution – because it provides for the organization and
operations of the different organs of the UN and the adoption of
any change in its provisions through a formal process of
amendment.

 Applicable to the members as well as non-member states, insofar
as ‘necessary for the maintenance of international peace and
security.’
 Charter superior than other treaties.
 Art. 103: ‘In the event of a conflict between the obligations of the
members of the UN under the present charter and their
obligations under any other international agreement, their
obligation under the present charter shall prevail.’

Procedure in Amending UN Charter
 Amendment resolution shall be adopted by a vote of 2/3 of the
members of the General Assembly; and
 Ratified in accordance with their respective constitutional
processes by 2/3 of the members of the UN, INCLUDING ALL
THE PERMANENT MEMBERS OF THE SECURITY COUNCIL.

Preamble
DETERMINED:
 To save succeeding generations from the scourge of war;
 To reaffirm faith in fundamental human rights, in the dignity
and worth of the human person, in the equal rights of men and
women and of nations large and small, and to establish
conditions under which justice and respect for the obligations
arising from treaties and other sources of international law can
be maintained; and
 To promote social progress and better standards of life in larger
freedom,

AND FOR THESE ENDS:
 To practice tolerance and live together in peace with one another
as good neighbors, and
 To unite our strength to maintain international peace and
security, and
 To ensure, by the acceptance of principles and the institution of
methods that armed force shall not be used, save in the common
interest, and
 To employ international machinery for the promotion of the
economic and social advancement of all peoples,

HAVE RESOLVED TO COMBINE OUR EFFORTS TO
ACCOMPLISH THESE AIMS:
 Accordingly, our respective Governments, through
representatives assembled in the City of San Francisco, who have
exhibited their full powers found to be in good and due form,
have agreed to the present Charter of the United Nations and do
hereby establish an international organization known as the
United Nations.

Purposes of the UN
 To maintain international peace and security;
 To develop friendly relations among nations;
 To achieve international cooperation;
 To be a center for harmonizing the actions of nations in the
attainment of these common ends.

Principles of the UN
 Sovereign Equality
 Pacta Sunt Servanta
 Amicable Settlement of Disputes
 Outlawry of War
 Requiring members’ assistance to UN and refrain assisting states
against the UN
 Ensuring non-members to act in accordance with the UN
principles
 Domestic jurisdiction clause

Membership to the UN
 ORIGINAL – Those states who participated in the UN
Conference on International Organization at San Francisco or
have previously signed the Declaration by the United Nations of
January 1, 1942. Although not yet states at the time of the
signing, the Philippines, India, Lebanon and Syria were included
as original members.

 ELECTIVE – Those states admitted to the UN by decision of the
General Assembly after favorable recommendation of the
Security Council.
Eligibility for admission:
 Must be a state;
 Must be peace-loving;
 Must accept the obligations of the charter;
 Must be able to carry out these obligations; and
 Must be willing to carry out these obligations.

Suspension of UN Members
 2/3 vote of those present and voting in the General Assembly;
 Favorable recommendation by at least 9 members of the Security
Council, including the 5 permanent members; and
 May be lifted only by the Security Council by a qualified
majority.

Expulsion of UN Members
 Must have persistently violated the principles in the Charter;
 By 2/3 vote of those present and voting in the General
Assembly;
 Upon recommendation by the Security Council by qualified
majority;

Withdrawal of Members
 No express provision;
But according to authorities in IL, a member may withdraw if:
 The UN was revealed to be unable to maintain peace or could do
so only at the expense of law and justice;
 The member’s rights and obligations as such were changed by a
Charter amendment in which it had not concurred or which it
finds itself unable to accept; or
 An amendment duly accepted by the necessary majority either in
the General Assembly or in a general conference is not ratified.
 Only one instance of withdrawal: Indonesia in 1965 but resumed
its seat after the overthrow of Sukarno.

Six (6) Principal Organs of the UN
 General Assembly
 The Security Council
 The Economic and Social Council
 The Trusteeship Council
 The International Court of Justice
 The Secretariat

The General Assembly
 Consists of all members;
 Each member entitled to not more than five (5) representatives
with five (5) alternates;
 Regularly meets annually beginning on the 3rd Tuesday of
September each year or by special session called by majority of
its members or at the request of the Security Council;
 Each member entitled to one (1) vote;
 Important questions are decided by 2/3 of those present and
voting;
 All other matters, including determining whether the question is
important, by majority of those present and voting.

Functions of the General Assembly
 Deliberative – making studies and recommendations on the
development of IL and its codification; recommending measures
for peaceful adjustment of any situation likely to impair the
general welfare or friendly relations among nations.
 Supervisory –Treating reports submitted by other organs;
approving trusteeship agreements in non-strategic areas.

 Financial – Approval of budget; apportionment of expenses
among its members; and approval of financial arrangements
with specialized agencies.
 Elective – Election of non-permanent members of the Security
Council; of all members of the ECOSOC.
 Constituent – admission of members and amendment of UN
charter.

The Security Council
 Key organ in the maintenance of inter-national peace and
security;
 Composed of five (5) permanent members: China, France, UK,
Russia and US and ten (10) non-permanent members: five (5)
from African and Asian states, two (2) from Latin American
states, two (2) from Western European and other states, and one
(1) from Eastern European states.
 Non-permanent members elected for 2-year term by the GA; not
eligible for immediate re-election.

Voting in The Security Council
The Yalta Formula:
 Each member entitled to one (1) vote;
 On substantial questions (non-procedural): Affirmative vote of
nine (9) members required, including all the five (5) permanent
members;
 A permanent member may veto on any non-procedural matter to
prevent its passage;

 On procedural questions: Affirmative vote of nine members
or more;
 But determining whether a question is procedural or not is a
non-procedural matter;
 Hence, any permanent member may veto on such
determination or on the substantial question when raised.
 So-called as the ‘double veto’ rule.

The Economic and Social Council
 Composed of fifty four (54) members with one vote each;
 All elected by the GA;
 Term of three (3) years with immediate re-election;
 Staggered terms so as to provide for replacement or re-elections
of 1/3 of the body every year.

Mandates of The ECOSOC
Exert efforts toward:
 Higher standards of living, full employment and conditions of
economic and social progress and development;
 Solutions of international economic, social, health and related
problems, and international, cultural and educational
cooperation; and
 Universal respect for, and observance of human rights and
fundamental freedoms for all without distinction as to race, sex,
language or religion.

Subsidiary Organs of The ECOSOC
Subsidiary:
 Commission on the Status of Women
 The different Regional Economic Commissions for Europe, Asia
and the Far East, and Latin America
Collaborative with:
 International Monetary Fund; and
 International Trade Commission

The Trusteeship Council
 Administration of the International trusteeship system;
 Composed of: a) the members of the UN administering trust
territories, b) the permanent members of the SC not
administering trust territories; and c) other members as
necessary and elected by the GA for a 3-year term .

The International Court of Justice
 Judicial organ of the UN;
 All members of the UN ipso fact parties to the Statute. A non-
member can become party upon approval by the GA after
favorable recommendation of the SC;
 Court composed of fifteen (15) members [judges].

Qualifications/Restrictions in the
Election of ICJ Judges
 Must be of high moral character;
 Possesses the qualifications required in their respective countries
for appointment to their highest judicial offices; or
 Jurisconsult of recognized competence in international law;
 Not two judges may be nationals of the same state;
 In such event the more than one national of the same state obtain
the required majorities, only the eldest shall be considered as
elected.
 Term: nine (9) years subject for re-election.
 Staggered terms so that 1/3 of the membership at 3-yr interval.

 The Court to elect President and Vice-President to serve for 3
years with re-election.
 To remain in session at the Hague or elsewhere, except during
judicial vacations;
 May either meet en banc or in chambers composed of 3 or more
judges when dealing with cases on labor, transit and
communications.
 Decision is by majority of the judges present;
 Quorum is 9 when full court is sitting.
 President of ICJ: Rosalyn Higgins of the UK.

 ICJ to decide contentious cases
 Render advisory opinions;
 Jurisdiction is based on the consent of the parties under the
optional jurisdiction clause of the Statute (Art. 360) and
comprises all cases that parties have referred to it and all matters
especially provided for in the Charter or in treaties and
conventions in force;
 Advisory opinions on legal question arising within the scope of
their activities are given upon request of the GA or the Security
Council and other organs of the UN when authorized by the GA.

The Secretariat
 Chief administrative organ of the UN;
 Headed by the Secretary-General who is chosen by the GA upon
recommendation of the Security Council;
 Term of the SG: five (5) year subject to re-election;
 SG is the highest representative of the UN, authorized to act in
its behalf and entitled to full diplomatic immunity. He may
waive the immunities and privileges of other key-officials of the
UN

Colonies & Dependencies
 Under IL, a colony or dependency is part and parcel of the
parent state, hence no legal standing ;
 However, there were such entities given recognition to
participate in international affairs and granted de facto status as
sovereign state. Hence, when acting in such manner, colonies
and dependencies are treated as international persons.
 Example: India when still colony of Great Britain was allowed
membership in the League of Nations and signed as charter
member of the UN. The Philippines also while still colony of the
US.

 Colony – a dependent political community consisting of a
number of citizens of the same country who have migrated
therefrom to inhabit another country.
 Dependency – a territory distinct from the country in which the
supreme sovereign power resides, but belongs rightfully to it,
and subject to the laws and regulations which the sovereign may
prescribe.

Mandates and Trust Territories
 Mandates – are former territorial possession of states defeated in
World War I and placed under the control of the League of
Nations. Many of the mandates became Trust Territories placed
under the Trusteeship Council of the UN.
 Trust Territories – those territories placed under the Trusteeship
Council.

 Three Types of Trust Territories: a) Those held under mandate
under the League of Nations, b) Those territories detached from
the defeated states after World War II; and c) Those voluntarily
placed under the system by the states responsible for their
administration.
 Condominium – a term used in describing a territory jointly
administered by two states.

Association [Prov. Of North Cotabato v.
GRP Panel, G.R. 183591, Oct. 14, 2008]
 An association is formed when two states of unequal power
voluntarily establish durable links.
 In the basic model, one state, the associate, delegates certain
responsibilities to the other, the principal, while maintaining its
international status as a state.
 Free associations represent a middle ground between integration
and independence.
 In international practice, the “associated state” arrangement has
usually been used as a transitional device of former colonies on
their way to full independence

Example of An Association
 Republic of the Marshall Islands and the Federated States of
Micronesia (FSM), formerly part of the U.S.-administered Trust
Territory of the Pacific Islands are associated states of the U.S.
pursuant to a Compact of Free Association.
 The former Trust Territory of the Pacific Islands is made up of
the Caroline Islands, the Marshall Islands, and the Northern
Mariana Islands, which extend east of the Philippines and
northeast of Indonesia in the North Pacific Ocean.

 The currency in these countries is the U.S. dollar, indicating
their very close ties with the U.S., yet they issue their own
travel documents, which is a mark of their statehood.
 Their international legal status as states was confirmed by
the UN Security Council and by their admission to UN
membership.
 According to their compacts of free association, the Marshall
Islands and the FSM generally have the capacity to conduct
foreign affairs in their own name and right, such capacity
extending to matters such as the law of the sea, marine
resources, trade, banking, postal, civil aviation, and cultural
relations.

 The U.S. government, when conducting its foreign affairs, is
obligated to consult with the governments of the Marshall
Islands or the FSM on matters relating to or affecting either
government.
 In the event of attacks or threats against the Marshall Islands
or the FSM, the U.S. government has the authority and
obligation to defend them as if they were part of U.S.
territory.
 The U.S. government, moreover, has the option of
establishing and using military areas and facilities within
these associated states and has the right to bar the military
personnel of any third country from having access to these
territories for military purposes.

Other Examples of Associated States
 Antigua
 St. Kitts-Nevis-Anguilla
 Dominica
 St. Lucia
 St. Vincent and Grenada
Note: All of the above have since become independent
states

Concept of Association Not
Recognized in the Philippines
 No province, city, or municipality, not even the ARMM, is
recognized under our laws as having an “associative” relationship
with the national government.
 The concept implies powers that go beyond anything ever
granted by the Constitution to any local or regional government
and implies the recognition of the associated entity as a state.
 The Constitution does not contemplate any state in this
jurisdiction other than the Philippine State, much less does it
provide for a transitory status that aims to prepare any part of
Philippine territory for independence.

Belligerent Communities
 That portion of the population which rises up in arms against the
legitimate government of the state when such upheaval or
conflict widens and aggravates.
 While not being conferred with all the rights of an independent
state, the recognizing state concedes to the belligerent
government recognized rights and imposes upon the obligations
of an independent state in matters relating to the war being
waged.

Conditions for Recognition of Status
of Belligerency
 Must have an organized civil government with control and
supervision over the armed struggle;
 The conflict must be serious and widespread with the outcome
uncertain;
 It must have occupied a substantial portion of the national
territory; and
 It must be willing to observe the rules and customs of war.
Note: Any lacking requisite will make the struggle merely an
insurgency without any legal personality in international law.

Effects of Recognition of
Belligerency
 Responsibility for acts of rebels resulting in injury to nationals of
the recognizing state shifted to the rebel government;
 The legitimate government recognizing the rebels must observe
the laws of war in conducting the hostilities;
 Third states recognizing the belligerency shall maintain
neutrality; and
 Recognition is only provisional, e.g. for the duration of the
armed struggle, and only for the purpose of the hostilities.

International Administrative Bodies
 Certain administrative bodies, created by agreement among
states, may be vested with international personality, provided
that they are: a) non-political, b) autonomous, and c) not subject
to control by any state.
 Examples: ILO, FAO, WHO, IMF, European Commission of the
Danube, Central Commission for the Navigation of the Rhine.

Individuals
 Traditionally, only considered as objects. But presently, a
number of international agreements grant a certain degree of
international personality to individuals.
Examples:
 UN Charter provision on ‘faith in fundamental human rights,
dignity and worth of the human person, and in the equal rights
of men and women’;
 Universal Declaration of Human Rights provision on ‘the
inherent dignity and the equal and inalienable rights of all
members of the human family;

 Some treaties, e.g. Treaty of Versailles, which confer on
individuals the right to bring suit against States before national
or international tribunals;
 The need for States to maintain an International Standard of
Justice in the treatment of aliens;
 The Genocide Convention which condemns the mass
extermination of national, ethnic, racial or religious groups;
 The 1930 Hague Convention with its rules to prevent the
anomalous condition of statelessness;

 The 1954 Covenant Relating to the Status of Stateless Persons
which grants stateless individuals certain basic rights; and
 The 1950 European Convention on Human Rights and
Fundamental Freedoms, which grants private associations and
individuals the right to file complaints before the European
Court on Human Rights.

Modes in Creating a State
 Revolution (e.g. U.S.)
 Unification (e.g., Unification of City States of Sardinia, Florence,
Naples, Rome, etc. in 1870 to become the state of Italy)
 Secession (e.g.,Bangladesh which seceded from Pakistan in 1971)
 Assertion of Independence (e.g., The Philippines)
 Agreement (e.g., Netherlands created by Congress of Vienna of
1815 & Poland, which was revived as a separate state by
agreement of the Allied Powers after World War II)
 Attainment of Civilization (e.g., Japan)

Principle of State Continuity
 Once its identity as an international person has been fixed and its
position in the international community established, the state
continues to be the same corporate person whatever changes
may take place in its international operation and government.
 Otherwise put: The change in the government of the state, the
number of its people or its area does not affect the international
personality of the state unless such change in the number of
people or area thereof is such as to make it impossible to
maintain the staate.

The Sapphire Case
Facts:
 Louis Napoleon, as Emperor of France, filed in a California
Court a civil claim for damages in connection with a collision
between the French vessel Eurayale and the Sapphire. He was
subsequently deposed while the case was pending.
Held:
 The reigning sovereign represents the national sovereignty, and
that sovereignty is continuous and perpetual residing in the
proper successors of the sovereign for the time being. Napoleon
was the owner of the Euralyle, not as individual, but as
sovereign of France. On his deposition the sovereignty does not
change, but merely the person in whom it resides.

Extinguishment of a State
 Merger
 Dissolution
 Deprivation of freedom to direct its external affairs leading to
partial loss of international personality;
 Radical impairment or actual loss in one or more of its essential
elements (ex. Extermination or En masse emigration of the
populace)

Succession of States
 Rule: The change in the government of a state, the number of its
people or its area does not affect its international personality,
unless such change in the number of people or area is such as to
make it impossible to maintain the state.
 The state remains as a person in international law, with all its
rights and obligations.

Extinguishment of a State
 Disappearance of one or more of the essential elements;
 Annexation, whether voluntary or forcible, into another state;
 Division into two or more states; and
 Incorporation into a federal union.

State Succession Defined
 Means the substitution of one state for another, the former
assuming the rights and obligation of the latter. It may be
universal or partial succession.
 It arises in the event a state is extinguished or created under the
modes already discussed.

Classification of State Succession
 Universal Succession– When the international personality of the
state succeeded to is completely absorbed by the successor.
Examples:
 Forcible or voluntary annexation of a state to another,
 Division of a state into two or more states
 Entrance of a state into a federal union.

 Partial Succession– When the succeeding state acquires only a
portion of the territory of another state.
Examples:
 In the case of conquest followed by cession;
 In the emergence of a new state on the foundation of a revolting
territory.

Effects of State Succession
 When Entire State is Annexed
 When only a portion of Territory is separated from another and a
new state is erected
 Transfer of Sovereignty.

1. Effects When Entire State Is Annexed

A. Upon treaties:
 Political treaties abrogated while treaties of territorial or
transitory nature remain and binding on absorbing state;
 Executory Treaties like that of extradition and of amity, etc. are
wiped out and third states lose whatever benefits they have
under such.

B. Upon Public Debts:
 General Rule: Public debts are assumed by the absorbing state.
 Exception: Annexation by conquest and public debts were
incurred for the prosecution of the war; and
 War arose because of the transactions resulting in the incurring
of the public debts.

C. Upon public property:
 Absorbing state succeeds into all public property and acquiring
all rights therein.
 But subject to charges or burdens resting upon the property
under the doctrine of Res transit cum suo onere.

D. Upon obligations with private persons:
 General Rule: Obligations of the annexed state towards private
person should be respected.
Exceptions:
 Worthless obligations of an insolvent state annexed without
recourse by a solvent state which cannot be converted into
valuable ones by the latter;
 Justifiable refusal by the annexing state to obligations incurred
by the annexed state for the purposes of war against it;
 Private rights which caused or contributed to the war which
resulted to annexation.

E. Upon Private Rights:
 Protection of private rights is obligatory upon the new sovereign.
 Transfer of allegiance of subjects operate ipso facto unless
otherwise provided in a treaty or the people withdraw from the
territory and resettle elsewhere.

2. Effects When Only Portion Of Territory Is
Separated and New State Established

A. Upon Treaties:
 Treaties of the mother state continue to be binding upon itself,
unless by their nature and connection with the separated
territory they must naturally fall.

B. Upon Public Debts:
 Mother state continues to be bound even if they were incurred
on account of the separate state.
 Exception: Agreement between the mother state and the separate
state relieving the former.

C. Upon Public Property:
 The new state succeeds to all the public property found in the
territory.

D. Upon obligations with Private Persons:
 The obligations of the territory with private persons are in
general respected.
 Exception: Those that are personal to the displaced sovereign.

3. EFFECTS IN THE CESSION OF A TERRITORY

A. Upon Private Property:
 No effect on private property rights.
 The cession is necessarily understood to pass the sovereignty
only, and not to interfere with private property.

B. Upon Treaties of the Ceding State:
 General Rule: The obligations of the ceding state in the treaty
continue.
Exception:
 Treaties in respect to the territory annexed abrogated if political
in character.
Exception to exception:
 Treaties which are transitory or territorial in character continue.

C. Upon Public Debts of Ceding State Incurred Over Such
Territory:
 Unless assumed by the annexing state in the annexing treaty, the
public debts of the ceding state incurred over such territory
remain with the ceding state.

D. Upon Public Obligations of the Ceding State:
 Public obligations of the ceding state over such territory, if
territorial, are assumed by the acquiring state.
 Contracts relating to the public property within the acquired
territory, entered into by the former sovereign, are usually
acknowledged by the new sovereign upon proof that the claims
are just and equitable, although no mention is made in a treaty of
cession confirming the transfer.

E. Upon Allegiance Of The People In the Ceded Territory:
 Allegiance to former sovereign is dissolved and the inhabitants
will now owe allegiance to the new sovereign, unless they
withdraw from the state.
 Their relations with each other remain unchanged.

F. Upon Property Rights and Other Private Rights of the People In
the Ceded Territory:
 Property rights and other private rights of the people therein
remain unaffected.

4. Effects In The Transfer of Sovereignty

 The allegiance to the old sovereign is dissolved.
 Inhabitants will now owe allegiance to the new sovereign, unless
they withdraw from the state.
 Their relations with each other remain unchanged.

People v. Perfecto, 43 Phil. 887
Held:
 The political laws of the former sovereign are automatically
abrogated and may be restored only by a positive act on the part
of the new sovereign.
 However, non-political laws, such as those dealing with familial
relations, are deemed continued unless they are changed by the
new sovereign or are contrary to the institutions of the successor
state.

SUCCESSION OF GOVERNMENTS
 Integrity of the state is not affected.
 It continues as the same international person, except only that its
lawful representative is changed.
 Rights of the predecessor government are inherited in toto by the
successor government.
 Obligations are assumed, if the new government was organized
constitutionally. Otherwise, purely personal or political
obligations of the predecessor government may be rejected.

U.S. (For George W. Hopkins) v.
Mexico [1927]
Held:
 Debts incurred by the old government for the purchase of
military equipment used against the new government may be
disowned.
 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.

Recognition Defined
 It is an act by which a state acknowledges the existence of:
- Another state;
- A government; or
- A belligerent community
 Indicating its willingness to deal with the entity as such under
the rules of international law.

Theories on Recognition
 Declaratory – That recognition merely affirms an existing fact
such as the possession by the state of all its essential elements,
and that it may be granted or withheld at pleasure.
 Constitutive –That recognition is compulsory or legal and that it
is the very 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.

Power to Recognize
 Under Art. VII of the 1987 Constitution, it is the President who is
given the 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.

Forms of Recognition
 Express: By way of formal proclamation or announcement,
whether verbal or in writing, and through a stipulation in a
treaty, a letter or on the occasion of an official call or conference.
 Implied: When recognizing state and recognized state enter into
a treaty regulating their relationship in general or when they
exchange diplomatic representatives. In case of a belligerent
community: when it blockades a port held by the recognized
belligerent or by observing neutrality in the conflict.

Recognition of States
 A free act of a state by which it acknowledges the existence on a
definite territory of a human society politically organized,
independent of any existing state, and capable of observing the
obligations of international law, and by which they manifest
therefore their intention to consider it a member of the
international community.

Recognition of Governments
 A manifestation of the recognizing state that it is ready and
willing to deal with the recognized government as the highest
organ acting for and in behalf of a particular state.
 It is important since, as a rule, a state cannot have any official
intercourse with another where its government is not
recognized.
 Unless recognized, such government is without standing in the
courts of another state.
 There is no legal right of a new government to be recognized or a
legal duty of one state.

Recognition of State v. of Gov’t
 Recognition of state includes the recognition of government
since the latter is an essential element of the former. Recognition
of a government does not necessarily signify the existence and
recognition of a state as such government may not be
independent.
 Recognition of state is generally irrevocable. Recognition of a
government may be withdrawn.

Kinds of De Facto Governments
 Those established by the inhabitants who rise in revolt against
and depose the legitimate regime. Example: Commonwealth of
Cromwell which supplanted the monarch under Charles I of
England;
 Those established in the course of war by the invading forces of
one belligerent in the territory of the other belligerent. Example:
Japanese occupation government; and
 Those established by the inhabitants of state who secede
therefrom without overthrowing its government. Example:
Confederate government of America.

Doctrines on Recognition of
Governments
 Tobar-Wilson
 Estrada
 Stimson

Tobar-Wilson Doctrine
 A doctrine that precludes recognition of any 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 government.
 First expressed in the 1907 Central American Republics at the
suggestion of Foreign Minister Tobar of Ecuador and reiterated
by President Woodrow Wilson of the US in a public statement
made in 1913.

Stimson Doctrine
 Precludes the recognition of any government established as a
result of external aggression.
 Formulated by US Secretary of State Stimson in 1932.
 Adopted by the League of Nations through a resolution stating
that: “It is incumbent upon the members of the League of
Nations not to recognize any situation, treaty or agreement
which may be brought about by means contrary to the Covenant
of the League of Nations or to the Pact of Paris”

Estrada Doctrine
 The diplomatic representatives in a country where a political
upheaval has taken place will deal or will not deal with
whatever government is in control at the time and either action
shall not be taken as a judgment on the legitimacy of the said
government.
 Attributed to Foreign Minister Genaro Estrada of Mexico.
 Example: Recognition of PROC based on the ‘one china policy’

Recognition of De Facto Gov’t v. De
Jure Gov’t
 Recognition de jure is relatively permanent; de facto provisional.
 Recognition de jure vests title to the properties of the government
abroad; recognition de facto does not.
 Recognition de jure results to full diplomatic relations;
recognition de facto is limited to certain juridical relations.

Effects of Recognition of States and
Government
 Full diplomatic relations are established except where the
government recognized is de facto.
 The recognized state or government acquires the right to sue in
the courts of the recognizing state.
 The recognized state or government is entitled to the possession
of the properties of its predecessor in the territory of the
recognizing state.

 All acts of the recognized state or government are validated
retroactively, preventing the recognizing state from passing
upon their legality in its own courts
Note: Non-suability of a state connotes recognition. Reason:
Whether a government is recognized or not, it still enjoys
immunity from suit in a foreign jurisdiction.

Oetjen v. Central Leather Co.,
246 U.S. 297
Facts
 In the course of the revolution in Mexico in 1913, General Pancho
Villa as commander of the North under General Carranza –
against General Juerta who had declared himself provisional
president after the assassination of Madero, President of Mexico
– seized certain hides belonging to Martinez for the latter’s
failure to pay his share of the contributions levied in the area. At
the time of the seizure, the Carranza Government controlled
about 2/3 of Mexico but the U.S. did not recognize any
government at the time.

 Gen. Carranza sold the hides to Finnegan Brown Co., a Texas
corporation, which in turn sold it to Central Leather Co. The
hide were later shipped to New Jersey where they were
subject to replevin in favor of Oetjen, the assignee of
Martinez & Co.
 During the course of the trial, the U.S. Government
recognized the Carranza Government as a de facto
government on October 19, 1915 and later on August 31, 1917
as the de jure government of Mexico.

Held:
 When a government which originates in revolution or revolt is
recognized by the political department of the government 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.

 That the conduct of one independent government cannot be
successfully questioned in the courts of another for to permit
the validity of the acts of one sovereign state to be re-
examined and perhaps condemned by the courts of another
would very certainly imperil the amicable relations between
the governments and the peace of nations.
 The seizing and selling of the hides in question was an action
of the legitimate Mexican government when dealing with a
Mexican citizen, and upon soundest reasons, was not subject
to re-examination and modification by the courts.

Underhill v. Hernandez,168 U.S. 250
Facts:
 In the course of a revolution in 1892 against the administration in
Venezuela, General Hernandez, supporting the anti
administration forces under the leadership of Crespo, entered
Bolivar and assumed control over the city as its civil and military
chief.
 Underhill was US citizen who constructed a waterworks system
for the city of Bolivar under a contract with the government and
was engaged in supplying the city with water.

 He applied to General Hernandez, as the officer in
command, for a passport to leave the city. General
Hernandez refused at first. But after requests made by others
in Underhill’s behalf, he issued a passport on October 18,
1892.
 An action was filed in the US to recover damages for the
detention of Underhill.
 On October 23, 1892, the Crespo government was formally
recognized by the U.S. as the legitimate government of
Venezuela.

Held:
 The acts complained of were the acts of a military government
representing the authority of the revolutionary party as a
government, which afterwards succeeded, and was recognized
by the US.
 In the case of a civil war, it the party seeking to dislodge the
existing government succeeds, and the independence of the
government it has set up is recognized, the acts of such
government, from the commencement of its existence, are
regarded as those of an independent nation.

 Every sovereign state is bound to respect the independence
of every other sovereign state. The court of one country will
not sit in judgment on the acts of another, done within its
territory. Redress of grievances by reason of such acts must
be obtained through the means open to be availed of by
sovereign powers as between themselves.

Republic of Peru v. Dreyfus
Brothers, 1888
Held:
 If a de facto government set up by overthrowing the existing
government becomes a de jure government through recognition,
and later on it is in turn overthrown by a succeeding revolution
which returns the old government, the obligations incurred by it
remain binding upon the state.

Russian Socialist Federated Soviet
Republics v. Jacques R. Cibrario, 235 N.Y.
255
Held:
 An unrecognized government could not and should not be
permitted to sue in the US. Permission to a foreign government
to sue in the courts of another is based upon comity, in the
absence of a treaty. But until said government has been
recognized, no such comity exists.
 The Plaintiff concededly has not been so recognized. There is,
therefore, no proper party before us.
 Recognition, and consequently, the existence of comity, is purely
for the determination of the legislative or executive department
of the government. Who is the sovereign of a territory is a
POLITICAL QUESTION.

Max Wulfsohn, et al. v. Russian Socialist
Federated Soviet Republics, US CA of New York,
1923
Held:
 To cite a foreign potentate into a municipal court for any
complaint against him in his public capacity is contrary to the
law of nations and an insult which he is entitled to resent. This
applies whether recognized or not.
 In either case, to do so would ‘vex the peace of nations’; the
hands of the sate department would be tied.

 Unwillingly it would find itself involved in disputes it might
think unwise. Such is not the proper method of redress if a
citizen of the US is wronged.
 The question is a POLITICAL ONE, not confided to the
courts but to another department of the government.
 Wherever an act done by a sovereign in his sovereign
character is questioned, it becomes a matter of negotiation, or
of reprisals or of war.

Existence of Belligerency
 A belligerency exists when the inhabitants of a state rise up in
arms for the purpose of overthrowing the legitimate
government.
Distinguished from insurgency:
 Insurgency is the initial stage of belligerency; belligerency is
more serious and widespread.
 Insurgency is directed by military authorities; belligerency is
under a civil government.
 Insurgency is usually not recognized; whereas there are settled
rules relating to recognition of belligerency.

3 Stages of Internal Dissension
 Simple lawlessness
 Insurgency
 Belligerency
Note: When a simple lawlessness spreads and develops into with a
political motivation, it becomes an insurgency. An aggravation
of insurgency is a belligerency.

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