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EXPLANATION

OF THE MAIN
TOPICS
1.

Private International Public


Law
Law

1.Deals with private


individuals.
2.It is really
municipal or
national in
character because
each State has its
own conflict rules.
3.3. Relief or reliefs
prayed for may be
obtained from
municipal

International

1. It governs the relation of


sovereign States and other
entities with an
international personality.
2. They are generally accepted
principles of public
international law, giving to
the subject an international
nature.
3. Sanctions may be in the
form of peaceful remedies.
Example: diplomatic
negotiation, mediation,
conciliation, arbitration,
diplomatic efforts,
settlement by the
international court of
justice.

BASIC OR FOUNDATION OF
PUBLIC INTERNATIONAL LAW
In
actual
practice,
common
consent and natural moral law are
determinative factors in interstate
relationship. This is founded on the
reason
that
common
consent
necessarily commands the faithful
compliance of commitments made,
or arrived at, in the course of a
common agreement. There are
three schools of thought on this

(1) Natural Law School of


Thought- which claims that
the basis is the natural
common law, which, in turn,
is based on the rule of
human conduct implanted
by the Creator in the very
nature of man in his
conscience to do what is

(2) Positivist
School of
ThoughtAccording to this
school of thought,
the basis is the
common consent of

(3)Eclectic School of
Thought- This school
of thought holds the
view that Public
International Law is
premised both on the
moral natural law and
on common consent.

QWhy
is
public
international
law
observed?
A- States observed public
international law because:
(a) they believe in the
reasonableness of the law of
nations; (b) they fear reprisal
from the other States; and
(c) they fear being
unconventional.

Q- Why is public
international
law observed by
private
individuals?

A- Private individuals observe public


international law because as rational
beings, they realize that the laws of
nations are founded on natural moral law
and on common consent and that these
are for their own good. In fact, it will be
observed that there is an increasing
diplomatic and economic intercourse
among nations represented by their
respective heads of states and
ambassadors, As the saying goes, No
man is an island and each country needs
the other not only in terms of goods,
products and commodities of all kinds
that may be needed in the pursuit of

Q- What is the
relation between
public
international law
and municipal
law in general?

A- Although international in
character, public international law
could be considered part of the
municipal law of a State because of
the doctrine of incorporation of
political law. Under this doctrine, a
State is, by reason of its
membership in the family of
nations, bound by the generally
accepted principles of international
law, the same being considered as
part of its own laws.

In consonance with this doctrine, the


Philippines is bound by any resolution
which is duly approved by the United
Nations General Assembly, or by any
treaty, commitment, or agreement,
reached in an international convention,
especially when the Philippines is a
party or a signatory to the said
agreement or treaty. But even if it is not
a signatory, the Philippines is bound by
the Hague Convention because it
embodied the generally accepted

2.

Public International Law

Municipal Law

1.Obedience to
1. It is more difficult to
municipal law is easier
enforce because it is
to enforce because the
enforced by the
citizens recognize the
collective wills of equals
superiority of their
(sovereign states).
government and its
2. The principal sanctions
duly constituted
are reprisals and war.
authorities.
3. The international order
2.Law is enforced
is relatively
through criminal
decentralized.
punishment or
4. Collective responsibility
execution of
is the rule for failures or
judgment.
omissions.
3.It is relatively a
centralized coercive
order because there is
one central authority
(the municipal

RELATIONSHIP BETWEEN
PUBLIC INTERNATIONAL
LAW AND MUNICIPAL LAW
Although international in
character, public international
law could be considered part
of the municipal law of a State
because of the doctrine of
incorporation in political law.

Q- Is public
international
law
independent
from
municipal

A- According to the Monistic


View: Both law depend on each
other and both are ultimately
directed to the same individual
because a State is composed of
individuals. While, ostensibly,
public international law deals with
foreign affairs and national law
concerns itself with domestic
affairs, every so-called domestic
affair of a State can be made the
subject matter of an international

According to the Dualistic or


Pluralistic View: Public international
law is completely distinct from
municipal law; and international law
and national law are mutually
independent of each other and
because the subject matter of public
international law is foreign affairs and
the subject matter of municipal law is
domestic affairs. Besides, public
international law is created by the
cooperation of two or more States
while national law is created by acts of

What is the
conflict
between
public
international
law and

It depends.
If the conflict is to be decided by a local
court and the case is with respect to the
conflict of public international law and our
Constitution, then our Constitution should
be upheld being the highest law of the land.
REASON: Section 5[2][a], Article VIII of the 1987
Constitution which provides that the Supreme
Court shall have the power to review, revise,
reverse, modify, or affirm on appeal or certiorari,
as the law or the Rules of Court may provide,
final judgments and orders of lower courts in: x x
x (a) All cases in which the constitutionality or
validity of any treaty, international or executive
agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or

to international law and a


statue, the rules of
international law are given
equal standing with, but are
not superior to, national
legislative enactments. A
treaty may repeal a statue,
and a statue may repeal a
treaty; thus, the principle of
lex posterior derogate priori,
that which comes last in time,

If the conflict is to be
decided by an
internationally created
tribunal, the recognized
principle is that national
laws must yield to the
laws of nations. REASON:
International law provides
the standards by which

Q- What
prevails in case
of conflict
between a
treaty and a
municipal
constitution?

A- From the point of view of the


State itself, our Constitution
provides that a treaty may be
declared unconstitutional by the
courts. From this point of view, the
municipal law prevails. The
example is the case of Ichong vs.
Hernandez where it was then held
that the Retail Trade
Nationalization Law prevails over

NOTE: The decision in Ichong


vs. Hernandez no longer holds
true because under the new law,
otherwise known as the Retail
Trade Liberalization Act 2000,
Republic Act No. 8762, foreign
individuals or corporations can
now engage in retail trade
subject to the conditions and
limitations prescribed by the

BAR QUESTION, 1980


Q- The 1968 Vienna
Convention on Road Signs
and Signal, which was
ratified by the Philippines
Government under
Presidential Decree No.
207 recommended the
enactment of the local
legislation of the safety

Acting on that recommendation,


Letter of Instruction No. 229 was
issued requiring the procurement
by all vehicle owners of
reflectorized triangular early
warning devices as a means of
preventing nighttime vehicular
accidents.
Discuss briefly the validity or
invalidity of said LOI from the
standpoints of (1) international

A- The Government of the Republic of


the Philippines ratified the 1968
Vienna Convention on Road Signs and
Signals, hence the said LOI was
issued precisely to be able to fulfill its
obligation to install safety signs and
devices and to carry out the
recommendation of the said
convention. The said LOI is therefore
valid.
The said letter of instruction is a
valid exercise of police power. It is a

The said LOI did not violate due process. As


mentioned, the said LOI is a valid police power
measure which is precisely for the protection
of motorists. Conjectural claims of petitioner
as to number of nighttime vehicular collisions
cannot be a basis for setting aside a
requirement of law that was promulgated after
a careful study by the Executive Department.
The letter of Instruction is issued in the
exercise of police power for traffic safety.
Furthermore, there is nothing in Letter of
Instruction No. 229 which compels car owners
to purchase the prescribed early warning
device. Vehicle owners can produce the device
themselves with a little ingenuity. (Agustin vs.

issued an administrative order


implementing a resolution adopted by
the World Health Organization (WHO)
to the effect that public officers are
not allowed to smoke inside the
premises of government buildings. It
is on account of this resolution that
the petitioner asked that President
Noynoy Aquino be sanctioned for
violating the said order of DOH.
President Aquino claims that the said
order is not applicable because there
is no enabling law since the same is
not incorporated in the municipal law.

A- There said resolution of


WHO is not binding unless and
until it becomes a law or it is
established as a customary
rule. In otherwords, legislation
is necessary to transform the
said resolution into a domestic
law. (Pharmaceutical and
Health Care Association of the
Philippines vs. Duque, G.R No.

Q- In the meantime that the


said resolution is not yet
transformed into a domestic
law, how shall it be treated?
A- It only partakes of the nature
of a soft law and not a treaty,
which means that it is only an
expression of non-binding
norms, principles and practices
that merely influence state
behavior. (Ibid.)

embodied in a treaty which


became the basis of the order
of the DOH, and it is a treaty
where the Philippines is the
signatory, how shall it be
treated?
A- The said order, which is based
on the resolution of the WHO,
becomes obligatory, because the
Philippines is a signatory of the
treaty, and it is bound by its
commitment to comply with the

A- As above-mentioned, a soft
law is merely an expression of
non-binding norms, principles
and practices that merely
influence state behavior.
Hence, it is not binding
because it is not yet
transformed into a domestic
law. For it to be binding, the
same must be established as a

Q- What is the purpose of


international law?
A- Public international law
strives to regulate the
actuation of States insofar as
they affect the international
scene and in some instances,
international law allows a
State to legally perform acts
within the territory of another

3.
RECOGNITION OF STATES
Recognition of a State- Recognition
is the act of acknowledging the
existence of a State, a
government or belligerency. It is a
political act which is exercised by
the political department of the
State. It is therefore discretionary
on the part of a State whether it
desires to recognize another

There are two theories on recognition


(1) the majority view, also known as
the declarative view, which holds
that recognition merely affirms an
existing fact. (i.e., if the State
possesses all the essential elements
it depends on the recognizing State
if it will affirm or not that such State
being recognized has indeed all the
essential elements of the State;

(2) the minority view, also


known as the constitutive
view, which holds that
recognition is compulsory
and legal. This means that
recognizing State may be
compelled to extend
recognition if the elements
of a State established.

What is required in order


that a government may be
recognized?
The government must enjoy
the support and popular
consent or approval of the
people and it must show
willingness and ability to
discharge its international
obligations.

Different doctrines
regarding recognition
of any government
(1) Under the Stimson
Doctrine, no recognition
shall be extended to a
government established
by and through external
aggression.

(2)Under the Tobar/Wilson


Doctrine, recognition of
government which is
established by revolutionary
means shall not be extended
until the said government shall
have established a
constitutional reorganization
and shall have freely elected

(3) Under the Estrada Doctrine,


a recognizing State will not issue
a declaration giving recognition to
another government which is
established through a political
upheaval. Instead, it will merely
accept whatever government has
effective control without making a
judgment on whether the
government that is recognized is
legitimate or not.

When will recognition be


accorded by the recognizing
State?
This is within the discretion of the
recognizing State. The bulk of the
practice of States probably support
the view that governments do not
deem themselves free to grant or
refuse recognition to a new State in
an arbitrary manner, by exclusive
reference to their own political
interests and regardless of legal
principles.

Different kinds of
recognition
(1) Express recognition;
(2) Implied recognition;
(3) De Facto recognition;
and
(4) De Jure recognition

Distinguish de facto recognition


from de jure recognition
De Facto

De Facto recognition
does not bring about
full diplomatic
intercourse. It is
generally provisional
and it is extended on
the belief of the
recognizing State that
some of the
requirements for
recognition are absent.
It does not give title to
assets of the State held

De Jure

De Jure recognition
brings about full
diplomatic intercourse
and observance of
diplomatic immunities
and confers title to
assets abroad.

DE FACTO AND DE JURE


GOVERNMENT
Q- Distinguish de jure
government from de facto
government.
A- A de jure government is an
organized government of a State
which has the general support of its
people. A de facto government is
characterized by the fact that it is
not founded upon the existing
constitutional law of State. (28 C.J.

Q- What are the different kinds


of de facto government?
A- (a) That government which gets
possession and control of, or
usurps, by force or by the voice of
the majority, the rightful legal
government and maintains itself
against the will of the latter, such
as the government of England
under the Commonwealth, first by
parliament and later by Cromwell as

(b) That which is established and maintained


by military forces who invade and occupy a
territory of the enemy in the course of war,
and which is denominated as a
government of paramount force, as in the
cases of Castine, in Maine, which was reduced
to British possession in the War of 1812, and
of Tampico, Mexico, occupied during the war
with Mexico by the troops of the United States.
(c) That established as an independent
government by the inhabitants of a country
who rise in insurrection against the parent
state, such as the government of the Southern
Confederacy, in revolt against the Union
during the war of secession. (Co Kim Cham
[alias] Co Cham vs. Dizon and Tan Keh, 75 Phil.

Q- What are
the
characterized
of de facto
government of
paramount

A- Its distinguishing
characteristics are:
1. That its existence is
maintained by active military
power within the territories,
and against the rightful
authority of an established
and lawful government; and

2. That while it exists it must necessarily


be obeyed in civil matters by private
citizens who, by acts of obedience
rendered in submission to such force, do
not become responsible, as wrongdoers,
for those acts, though not warranted by
the laws of the rightful government.
Actual governments of this sort are
established over districts differing greatly
in extent and conditions. They are usually
administered by military authority, but
they may be administered also by civil
authority, supported more or less directly
by military force. (Ibid.)

Remembering my
discussion through
question and
answer in the
textbook,
Constitutional Law,
Volume 1

Q- Corazon C. Aquino took her oath


of office on February 25, 1986, the
last day of a four-day people
power revolt. This culminated in
the ouster of President Ferdinand
E. Marcos. Before she took her oath
of office, she read Proclamation No.
1 wherein she declared that she
and her Vice-President were
taking power in the name and by
the will of the Filipino people.
Was the government under
Corazon C. Aquino a revolutionary

A- It is submitted that the


provisional government that was
established thereunder was
revolutionary in character
because it was installed by the
direct action of the people or by
people power. Hence, It
derived its existence and
authority directly from the
people themselves, not from the
1973 Constitution which was
then in existence.

Q- Was it a de
jure
government
or a de facto
government?

A- Initially, the government was a


de facto government because there
was no constitutional basis of its
creation, the same not having been
sanctioned either under the 1935 or
the 1973 Constitution. However, the
de facto government at the start
acquired a de jure status when it
obtained the continuous public
acceptance and support of the
people and the recognition of
practically all foreign governments.

Q- If the said
government is a
revolutionary
government, what
was its effect on the
Bill of Rights under
the 1937

A- The Bill of Rights under


the 1937 Constitution was
not operative during the
interval between February
28, 1986 and March 24,
1986 when the Freedom
Constitution took effect by
presidential proclamation.

Q- How about the


government under Gloria
Macapagal-Arroyo that was
established after the ouster
of President Joseph Estrada,
is it de jure or de facto?
A- The Supreme Court
considered it a de jure
government because President
Joseph Estrada already gave up
the presidency.

The Supreme Court said: xxx


Despite the lapse of time and
still without any functioning
Cabinet, without any
recognition from any sector of
government, and without any
support from the Armed Forces
of the Philippines and the
Philippine National Police, the
petitioner continues to claim

What leaps to the eye from


these irrefutable facts is that
both houses of Congress have
recognized respondent Arroyo
as the President. Implicitly
clear in the recognition is the
premise that the inability of
petitioner Estrada is no longer
temporary. Congress has
clearly rejected petitioners

prove that did not resign, still, he


cannot successfully claim that he
is a President on leave on the
ground that he is merely unable
to govern temporarily. That
claim has been laid to rest by
Congress and the decision
that respondent Arroyo is the
de jure President made by a
co-equal branch of
government cannot be

5.
SUCCESSION
OF STATE AND
SUCCESSION
OF
GOVERNMENT

Distinguish succession of State and succession


of government
SUCCESSION OF STATE

SUCCESSION OF
GOVERNMENT

1. Political laws are


abrogated while
municipal laws remain in
force.
2. Treaties are discontinued
except those dealing with
local rights and duties.
3. 3. All rights of the
predecessor State are
inherited, but the
successor State has the
discretion to assume or
reject liabilities.

The State continues as the same


international person except that its
lawful representative is changed.
When this happens, what are the
consequences? All rights of the
predecessor government are
inherited by the successor. If the
new government was organized
due to a constitutional reform,
which is duly ratified in a
plebiscite, all obligations of the
predecessor are also assumed.
However, if the new government is
established through violence, the
new government may lawfully
dishonor the personal or political
obligations of the predecessor, but
not those obligations or contracts
entered into in the ordinary course

SUBJECTS AND OBJECTS OF PUBLIC


INTERNATIONAL LAW
SUBJECTS AND OBJECTS OF PUBLIC
INTERNATIONAL LAW

Q- Distinguish each from the other.


A- Subject of International Law- is an
entity directly endowed with rights as well as
obligations in the international legal order.
Example: In the exercise of its rights, the
Philippines, as a sovereign State, can enforce
said right and may even sue in the
International Court of Justice. On the other
hand, the Philippine Republic may be sued in
the international tribunal for its official
actuations.

Object of International LawAn object is a person or thing


indirectly vested with rights and
obligations in the international
order. Example: A Filipino
private citizen has rights which
owe to be respected by other
States but if he has some
grievances, he has to course the
same through the Republic and

Q- What are the


subjects of
international law?
A- 1. States
2. Colonies
3. Dependencies
4. Belligerent

Q- Are private individuals


regarded as subjects of
international law?
A- The rights of individuals as
against State are now
protected. In fact, in case of
crimes against humanity like
genocide, victims are afforded
the opportunity to participate
in the proceedings.

international law does not


give an individual direct
rights and obligations on
account of a treaty or a
general principle, the
individual, in such a case,
may only be treated as an
object of international law,
and for which reason, such
individual does not have a
standing to espouse a direct

1982
Q- What is the
status of an
individual under
International

A- Individuals may be regarded as true


subjects of International Law. Individuals
are also directly and individually subjects
of obligations, responsibilities and rights
established by International Law. The
statement that States as juristic persons
are subjects of International Law only
means that individual human beings are
indirectly and collectively, in their
capacity as organs or members of the
State, subjects of the obligations,
responsibilities, and rights presented as
obligations, responsibilities and rights of

7.
VATICAN CITY AND THE HOLY SEE
Is the Vatican or the Holy See a
State?
Yes, it possesses the essential
elements of a State. REASONS:
1.There are around 1,000 people
almost all of whom are individuals
residing therein by virtue of their
office;
2. There is a definite territory
(approximately 100 acres);
3. There is a government (under the
Pope himself);

4. There is independence (the State of the


Vatican City was created by the Lateran
Treaty of February 11, 1929 between Italy
and the Holy See. Under the terms of the
Treaty, Italy recognizes the full ownership,
exclusive dominion, and sovereign
authority and jurisdiction of the Holy See
over the Vatican);
5. The Vatican City has a sufficient degree
of civilization;
6. The Vatican City has been recognized by
almost all the countries of the world
including Communist Russia.

City and the Roman Catholic


Church
The Vatican City is concerned with
material things and occupies a
definite territory, while the Roman
Catholic Church is preoccupied with
things of the soul and the spirit,
hence, it is tied to no limited
territory. Both, however, are
subjects of international law; both
have some international rights, the
violations of which can amount to

Can the Holy Father, as head


of the Catholic Church, enter
into treaties?
Yes. As head of the Catholic
Church, the Holy Father can
enter into ordinary treaties for
and in behalf of the Vatican City.
He may also enter into special
treaties which regulates
ecclesiastical matters.

8.
DOCTRINE OF STATE
CONTINUITY
Doctrine of State
continuity- Under this doctrine,
a State does not lose its identity
but remains one and the same
international person
notwithstanding changes in the
form of its Government, in its
headship, in its rank and title, in
its dynasty.

Example: France which retained


her personal identity from the
time the law of Nations came
into existence until the present
day, although she acquired, lost,
and regained parts of her
territory , changed her dynasty,
was a kingdom, a republican
empire, again a kingdom, again
a republic, again an empire, and
is now, finally as it seems a

9.
ACT OF STATE DOCTRINE
Act of State doctrine- Under this
doctrine, the foreign court chooses to
uphold and respect the foreign States
act done within its territory on the
reasoning that if it will not do so, it
would imperil the amicable relations
between governments and vex the
peace of nations. The doctrine was
applied in the case of Banco National de
Cuba vs. Sabatino(376 U.S. 398 [1964]),
which upheld the nationalization of
sugar produced in Cuba.

. This was criticized and for which reason, the U.S.


Supreme Court adopted the position formulated
in Sabatino Amendment (22 U.S. C.A. 2370 [e]
[1]), to the effect that no court in the U.S. should
decline because the Act of State doctrine seems
to make a determination on the validity of a
confiscation of property by a foreign State in
violation of the principles of international law.
Since then, the Act of State doctrine was
abandoned by the courts. In First National City
Bank vs. Banco Nacional de Cuba (406, U.S. 759
[1965]), the U.S Supreme Court held that the
doctrine should not be applied where the
Executive Branch expressly represents to the
court that the application of the doctrine would
not advance with the interests of American

AS APPLIED IN
CREDIT SUISSE VS. U.S. DISTRICT
COURT
FOR THE CENTRAL DISTRICT OF
CALIFORNIA, 130 7.3d 342, 134748
In relation to
PNB VS. U.S. DISTRICT COURT OF
HAWAII
04-71843 (D.C. NO. MDL-00840-

In this case, the Swiss assets


of the Marcos estate had been
frozen by the Swiss
government at the request of
the Republic of the Philippines,
which seek to recover them.
The class plaintiffs obtained an
injunction from the U.S. District
Court of Hawaii requiring the
Swiss Banks to hold the assets

The U.S. 9th Circuit Court of


Appeals issued a writ of
mandamus and held that the
injunction violated the Act of
State Doctrine, which preclude
American Courts from declaring
invalid a foreign sovereigns
official act, that is, the freeze
order of the Swiss government.

The Swiss government released


the funds frozen in Switzerland for
transfer to the Philippine National
Bank in escrow pending a
determination of proper disposal by
a competent court in the
Philippines.
The said funds were deposited by
the PNB in Singapore. Thereafter,
the assets were forfeited to the
Republic of the Philippines following
the decision of the Philippine
Supreme Court.

The U.S. District Court of Hawaii


ruled and ordered as follows:
1. The Philippine Supreme Court had
violated due process by any
standard and that its judgment was
entitled to no deference.

2. Any such transfer, without first


appearing and showing cause in this
court as to how such transfer might
occur without violating the, Courts
injunction shall be considered
contempt of the Courts earlier
order. Any and all persons banking
institutions participating in such
transfer are hereby notified that
such transfer would be considered
in contempt of the Courts
injunction.

3. PNB, which was not a party to the


litigation in the District Court, was
required to show why it should not be
held in contempt for violating the
Courts injunction against transfer of
assets by the estate.
Hence, PNB filed a petition for
mandamus in the U.S. 9th Circuit Court
of Appeals to restrain the District court
from enforcing its Order to Show
Cause and from pursuing discovery
against the Bank officer.

This case is: PNB VS. U.S.


DISTRICT COURT OF HAWAII 0471843
(D.C. No. MDL-00840-MLR)
[FEBRUARY 4, 2005]
PNB contented that the entire
proceeding against it for its transfer of
funds to the Republic of the Philippines
violated the Act of State Doctrine,
and that the transfer of funds was
made in accordance with the
judgment of the Philippine Supreme
Court.

ISSUE:
Are the orders of the U.S. District
Court of Hawaii a violation of the
Act of State Doctrine.
HELD:
1. The U.S. 9th Circuit Court of
Appeals held that the orders of the
U.S. District Court of Hawaii had
violated the Act of State Doctrine
and reasoned out as follows:

A) To obtained assets from PNB, or to


hold PNB in contempt for the transfer of
those assets to the Republic of the
Philippines, the District Court
necessarily held invalid the forfeiture
judgment of the Philippine Supreme
Court.
B) Regarding the argument of class
plaintiffs that the Act of State Doctrine
is directed at the executive and
legislative branches of foreign
governments and did not apply to
judicial decisions; the U.S. 9th Circuit

(b.1) A judgment of a court may be an


Act of State.
(b.2) There was no question that the
judgment of the Philippine Supreme
Court gave effect to the public interest
of the Philippine Government. The
forfeiture action was not a mere dispute
between private parties. It was an
action initiated by the Philippine
Government pursuant to its statutory
mandate to recover property allegedly
stolen from the treasury. (In re Estate
of Ferdinand E. Marcos- Human Rights

(b.3) The 9th Circuit Court of


Appeals had earlier
characterized the collection
efforts of the Republic of the
Philippines to be
governmental.
(b.4) The subject matter of
the forfeiture action thus
qualified for treatment as an

C) Regarding the other argument of class plaintiffs


that the Act of State Doctrine was inapplicable
because the judgment of the Philippine Supreme
Court did not concern matters within its own
territory, the U.S. 9th Circuit Court of Appeals ruled,
thus:
The act of the Philippine Supreme Court was
not wholly external. Its judgment which the District
Court declared invalid was issued in the Philippines
and much of its force upon Philippine National Bank
arose from the fact that the Bank is a Philippine
Corporation. (Callejo vs. Bancomer, S.A. 764 F. 2d
1101, 1121-25 (5th Cir. 1985)
Even if we assume for purposes of decision that
the assets were located in Singapore, we conclude
that this fact does not preclude treatment of the
Philippine judgment as an act of State in the

D) Further agreements of the U.S. 9th Circuit Court


of Appeals:
(a) The interest of the Republic of the Philippines
in the enforcement of its laws does not end at its
boarders. The fact that the escrow funds were
deposited in Singapore does not preclude the
application of the Act of State Doctrine. xxx
(b) The Republic of the Philippines did not simply
intrude into Singapore in exercising its forfeiture
jurisdiction. The presence of the assets in Singapore
was a direct result of events that were the subject
of the decision in Credit Suisse, supra, where the
U.S. 9th Circuit Court of Appeals upheld as an Act of
State a freeze order by the Swiss Government,
enacted in anticipation of the request of the
Philippine government to preserve the Philippine
governments claims against the very assets in

10.
BELLIGERENT AND INSURGENT
COMMUNITIES
Who are referred to as
insurgents or rebels?
Insurgents or rebels are regarded
as organized groups who are in a
state of armed hostility towards an
established government on
account of political reasons or
purposes.

What, if any, are the rights of insurgents


or rebels under international law?
None, but if the eivil strife has reached a
stage where the sovereignty of the State over
the insurgent community is already threatened
and jeopardized, certain insurgent rights may
be tacitly admitted. When this happens, the
following principles shall govern the so-called
Insurgent right:
1. A foreign State shall refrain from
interfering in the hostilities involving the
parent State and insurgent community.
Example: (1) The foreign State shall not
extend hospitality to the rebels; (2) The
foreign State should not extradite the
insurgent to the parent State.

2. If the insurgents committed hostile acts against


the foreign state, it may punish them, or turn
them over to the parent State.
3. If the acts committed are in the nature of
piracy, they are considered private in character,
hence, no insurgent rights arise
4. If the existence of insurgent rights is admitted
by a foreign State, the parent State is still liable
for the acts committed by the insurgent
community within the jurisdiction of the said
parent State.
5. If an insurgent community has been given
insurgent rights, it does not mean that the
community has acquired the status of a belligerent
and neither is there an official recognition of the
insurgents as a belligerent community.

When are the


insurgents
considered as
belligerents and
when is their
community
considered as a
belligerent
community?

When the insurgency has reached a serious


proportion, the rebels, instead of being merely
considered insurgents, may be properly called
belligerents and their community a belligerent
community. This is, however, subject to the
following conditions:
1. The hostilities must be of the character of war
and carried on in accordance with laws of war.
2. The end must be political in character.
3. The proportions of the revolt must be such as
to render the issue uncertain and to make its
continuance for a considerable time possible.
4. The conduct of hostilities and general
government of the revolting community must be
in the hands of the responsible organization.
(Wilson and Tucker, International Law, p. 69)

THE UNITED NATIONS


Historical background of the
United Nations
The League of Nations was
organized in 1919, five years after
World War I broke out in 1914. Its
purpose is to achieve international
peace and encourage international
cooperation. The United States was
not a member of the League of
Nations. The League of Nations was

What caused the creation of United Nations


after the collapse of the League of Nations?
We have already suffered two world wars since
the beginning of the 19th century. All nations,
whether or not they were involved, shared
equally in the ills of war. When battles are fought,
the lives of men and women, including innocent
children, disabled and even those who are too old
to fight, are either endangered, severely
damaged or lost. Costs of living are inflated, and
after the war, depression and starvation occur,
economic ills and immense losses to business are
extensive. Wars, after all, are not instruments of
achievements. They cannot decide international
disputes to the satisfaction of warring nations.
Wars cannot make peace. They destroy.

the General Assembly of the United


Nations, said:
The First World War cost 8,000,000
dead, 15,000,000 mutilated,
3,000,000 wounded more than the
entire population of Brazil and 400
billion dollars went up in smoke of
battle, a sum of which according to
Murray Butler, would have given every
family in the countries engaged in the
struggle, a furnished house with
lands to cultivate, with a surplus
sufficient to purchase all the private
properties in France and Belgium and
construct a university and library in
the most important cities of the

amount required for the reestablishment of the world situation as


it was prior to the war, we should arrive
at the conclusion never imagined by
man as possible, that there has been a
waste per capita of the world
population of $10,000 or 200 Brazilian
contos This cost can never be paid by
us who made the war possible, but will
have to be paid by many innocent
generations, and its liquidation would
require more than a century of work on
the part of the victors and vanquished
alike. History does not record a peace
completed by the generation which

Indeed, after every war and after all


the bitterness that results from war,
mankind is taught that it is peace,
after all, that is needed by all the
countries of the world to enable them
and their people to live in happiness.
Peace is what we need to build the
world, and peace comes from the
heart, and not from the minds of men.
This desire for peace overwhelmed
the hearts of the great men and
women who survived the war. They
have agreed to establish and pursue

NATIONS
Four (4) salient purposes of the
United Nations
The four (4) salient purposes of the
United Nations are the following:

(1) The attainment of international peace


and security;
(2) The development of friendly
relations;
(3) The achieving of international
cooperation;
(4) The use of the United Nations as the
center for the harmonizing of actions to

NATIONS
Principles of the United Nations
The Organization is supposed to act
in accordance with the following
principles:
(1) Sovereign equality;
(2) Good faith;
(3) Peaceful settlement of disputes;
(4) Avoidance of threat or use of
force;
(5) Members to assist United Nations;
(6) United Nations to ensure that nonmembers will act properly;

ORGANS OF THE UN
Principal organs of the
United Nations
The principal organs of the
United Nations are the following:
(1) General Assembly;
(2) Security Council;
(3) Economic and Social Council;
(4) The Trusteeship Council;
(5) International Court of Justice;
(6) Secretariat (Article 7, No. 1,

Explain each.
(1) General AssemblyComposition: Consists of all
the members of the
organization, each of which is
entitled to send not more
than 5 representatives and 5
alternates.
Voting power: Each member
has only one vote.

Classification of functions:
(1) Deliberative, like initiating studies and
making recommendations for the
development of international law, etc.;
(2) Supervisory, such as receiving and
considering annual and special reports from
other organs of the UN;
(3) Financial, like consideration and approval
of the budget of the organization, the
apportionment of expenses, etc.;
(4) Elective, such as the election of the nonpermanent members of the Security Council;
and
(5) Constituent, such as the admission of

Its regular session is held once a year. It


may hold special sessions called by the
Secretary General at the request of the
Security Council or a majority of the
members.
Required vote on several
questions:
(a) On important questions (i.e., peace,
security, membership, elections,
trusteeship system, budget) 2/3 vote of
the members present and voting is
required;
(b) On other questions, a simple majority
is sufficient. To classify a question as

(2) Security Council- It is the key organ in


the maintenance of international peace and
security.
Composition: It is composed of five (5)
permanent members, namely: China,
France, Russia, the United Kingdom and
the United States; and ten (10) elective
members, elected for two-year terms by
the General Assembly, five from African
and Asian States, two from latin American
States, two from Western European and
other States, and one from Eastern
European States.

Classification of functions: The


Security Council is expected to
function continuously, and session
may be called at any time; thus, the
representative of the member
States should always be available.
Required vote on several
questions: Each member of the
Security Council shall have one
vote, but distinction is made
between the permanent members
and the non-permanent members in
the resolution of substantive

BAR QUESTION, 1984


Q- Is the United Nations
authorized to resort to
enforcement action,
including the use of force,
in regard to the Iran-Iraq
war? If so, through what
agency? State the legal
basis of the power and

A- The Security Council may exert


effort to settle the dispute but if this
fails, it may resort to enforcement
action like the use of air, naval and
land forces to restore international
peace or it may require the member
states to put into effect interruption
of economic, transportation, or
communications relation with Iran
or Iraq using as basis the provision
of Article 33 in relation to Articles
41 & 42 of the U.N. Charter.

The U.N. Charter requires the


affirmative both of seven of the
eleven members constituting the
Council, and said seven votes
must include the concurrent vote
of all five permanent members of
the Council like U.S., Russia,
China, Great Britain and France.
This is needed for the Security
Council to assume jurisdiction
and make the resolution as

Q- At the United
Nations, the Arab
League, through Syria,
sponsors a move to
include in the agenda
of the General
Assembly the
discussion of this

Philippines has expressed the desire


to secede from the Republic of the
Philippines in order to constitute a
separate and independent state and
has drawn attention to the probability
that the continuation of the armed
conflict in Mindanao constitutes a
threat to peace.
You are asked by the Philippine
Government to draft a position paper
opposing to move. Briefly outline your
arguments supporting the Philippine
position, specifically discussing the
tenability of the Arab Leagues action
from the standpoint of International

A- The motion being sponsored


by the Arab League is a matter
within the domestic jurisdiction
of the Philippines. Besides, the
movement to secede from the
Republic of the Philippines is not
an international dispute which a
U.N. member may bring to the
attention of the Security Council
or of the General Assembly.

(3) Economic and Social Council


Composition: Composed of fifty four (54)
members elected by the General Assembly for
a three-year term.
Functions:
(1) It shall exert efforts towards higher
standards of living, conditions of economic and
social progress and development;
(2) It shall exert efforts to solutions of
international economic, social, health and
related problems;
(3) It shall exert efforts for universal respect for
and observance of human rights and
fundamental freedoms.
Voting power: Decisions are reached by a
simple majority vote.

(4) The Trusteeship Council


Composition:
(a) It is composed of members of the UN
administering trust territories;
(b) It is composed of permanent members of the
Security
Council
not
administering
trust
territories; and
(c) It is composed by as many other members
elected by the General Assembly as may be
necessary to ensure that the total number of
members is equally divided between those
members of the UN which administer trust
territories and those which do not.
Voting Power:
(a) Each member of the Trusteeship Council shall
have one vote.
(b) Decisions of the Trusteeship Council shall be
made by a majority of the members present and

(5) International Court of Justice


Function: It is the principal judicial
organ of the UN (Article 1, Statue of the
International Court of Justice)
Composition and Qualification: The
court shall be composed of a body of
independent judges, elected regardless
of their nationality from among persons
of high moral character, who possess
the qualifications required in their
respective
countries,
or
are
jurisconsults of recognized competence
in international law.

The court shall consist of 15


members, no two of whom may be
nationals of the same state. (Article
2 and 3, ibid.)

How are they elected?


They shall be elected by the General
Assembly and the Security Council
from a list of persons nominated by
the national groups in the
permanent court of Arbitration.
(Article 4, ibid.)

Term of office:
They are elected for 9 years and may
be re-elected; provided, however, that
of the judges elected at the first
election, the term of 5 judges shall
expire at the end of 3 years and the
terms of five more judges shall expire
at the end of 6 years.

Court is permanently in
session:
The court shall remain
permanently in session except
during the judicial vacations, the
dates and duration of which shall
be fixed by the Court.
(Article23,ibid.)

Jurisdiction of the case:


The jurisdiction of the court
compromises all cases which
the parties refer to it and all
matters specifically provided
for in the Charter of the UN or
in treaties and conventions in
force. (Article 36, ibid.)

Basis of Courts jurisdiction:


It is based on the consent of the
parties. Art. 36 of the Statue of the
International Court of Justice
provides: The State parties to the
present Statue may at any time
declare that they recognize as
compulsory ipso facto, and without
special agreement, in relation to any
other State accepting the same
obligation, the jurisdiction of the
Court, disputes concerning:

a. The interpretation of a treaty;


b. Any question of international
law;
c. The existence of any fact
which, if established, could
constitute a breach of an
international obligation;
d. The nature or extent of the
reparation to be made for the
breach of an international
obligation.

Can it give advisory opinion?


The court may give an advisory
opinion on any legal question at the
request of whatever body that may
be authorized by or in accordance
with the UN Charter to make such a
request (Article 65, ibid.) (i.e.,
General Assembly or the Security
Council) or the organs of the UN
when authorized by the General
Assembly.

Official languages of the Court:


French and English. If the parties
agreed that the case shall be
conducted in French, the
judgment shall be delivered in
French. If the parties agree that
the case shall be conducted in
English, the judgment shall be
delivered in English. (Article 39
[1], ibid.)

Can other languages be used?


Yes, if requested by the parties or
by any of the parties (Article 39
[3], ibid.)

BAR QUESTION, 1979


Q- May the United States be sued in
our courts for the value of private
properties requisitioned by its Army
during the last World War, as well
as Japan for the Mickey Mouse
money in payment for private
properties, which have not been
redeemed until now? May the suit
be brought to the International
Court of Justice?

A- The said suit may not be


brought to the international
law of justice without the
consent of the USA.
REASON:
In contentious cases such as
this one, consent of the parties
is needed.

BAR QUESTION, 2006


Q-(a.) Where is the seat of the
International Court of
Justice?
(b.) How many are its
members?
(c.) What is the term of term of
its office?
(d.) Who is its incumbent
President? What is his/her
nationality?

A-(a.) The seat of the ICJ is at


the Peace Palace, Hague
(Netherlands).
(b.) Members of ICJ: fifteen
members, no two of whom
may
be nationals of the
same State.
(c.) Term of their office:
members of ICJ are
elected for
nine years and
may be reelected.
(d.) Incumbent President of
ICJ: Rosalyn Higgins, a
British.

(6) Secretariat -The chief


administrative organ of the UN.

Composition- Headed by a
Secretary-General who is
chosen by the General
Assembly upon
recommendation of the
Security Council. He shall be
the chief administrative officer
of the Organization. (Article
97, UN Charter)

Functions
1. The Secretary-General is the
highest representative of the
UN, and is authorized to act in
its behalf.
2. Acts as Secretary in all
meetings of the General
Assembly, the Security Council,
the Economic and Social Council,
and the Trusteeship Council.

3. The Secretary-General and his


staff are international civil
servants, and they cannot
receive instructions from any
government or source outside
the UN.
4. The Secretary-General enjoys
the right of political initiative,
and may bring to the attention
of the UN Security Council any
matter which, in his opinion,
may threaten international
peace and security.

MEMBERS OF THE UNITED


NATIONS
Category of members of the United
Nations:
(a) The original members; and
(b) Those who were subsequently
admitted as members.

Who are the original members?


The original members are the
States who signed the UN Charter
and ratified it.

Who are the additional members?


The additional members are those
who were subsequently admitted.

Qualifications for membership


Membership in the UN is open
to all peace-loving states which
accept the obligations under the
charter and are able and willing
to carry out their obligations.

Vote needed to admit, suspend or expel a member of the UN


TO ADMIT

TO SUSPEND

TO EXPEL

The decisions of
The same vote is
2/3 of those
required to
present and
suspend.
voting in the
General
Assembly upon
the
recommendation
of at least nine
(9) members of
the Security
Council, including
all the permanent
members of the
Security Council.

2/3 vote of those


present and
voting in the
General
Assembly upon
recommendation
of a qualified
majority of the
Security Council
on grounds of
persistently
violating the
principles in the
Charter.

THE UN CHARTER(It serves as the


Constitution that governs the
relations of international persons)

Can it be amended?
Yes, it may be amended in the following
manner:
By 2/3 vote of the General Assembly and
ratified with their respective constitutional
processes by 2/3 of the members of the UN,
including all the permanent members of the
Security Council:
A general conference, called by a majority
vote of the General Assembly and any nine
(9) members of the Security Council, may
propose amendments by a 2/3 vote of the
conference.

When shall the amendment take


effect?
It shall take effect when ratified
by 2/3 of the members of the UN,
including the permanent members
of the Security Council.

12.
FUNDAMENTAL RIGHTS OF STATES
Rights of existence, integrity and selfpreservation
Right of sovereignty and independence
Right of equality
Right of property and jurisdiction
Right of legation or diplomatic intercourse

CODE: ESEP-LEG
E-xistence
S-overeignty
E-quality
P-roperty and jurisdiction
LEG-ation

RIGHTS OF EXISTENCE- A State exists


because it possesses the essential
elements, thus:
(1) People;
(2) Territory;
(3) Government; and
(4) Sovereignty.
It is on this basis that it acquires a
personality in the international order, and
arising from this personality are
corresponding rights and responsibilities.
Its success and ability to exercise its
expected role in the world order depends
on its continued existence.

In fact, to be able to ensure its


survival, Article 5 of the UN
Charter grants it the RIGHT OF
INDIVIDUAL OR COLLECTIVE
SELF-DEFENSE.

SELF-DEFENSE
Self-defense It is right of a
State to defend itself from an
external aggression. The necessity
for self-defense is determined by
the party attacked and in the
exercise of this right, it has the
right to repel force with force.

Requisites of self-defense under


Article 51
There is an armed attack
The attack must be against a UN
Member
The Security Council must not
have acted yet

Define armed attack


The UN Charter has no definition
of armed attack. Whether or not
an attack exists and who is
responsible for the same will be
determined by the Security
Council.

COLLECTIVE SELF-DEFENSE
Collective self-defense It is
the collective right of the
members of a particular
organization to defend
themselves from an
aggression or attack which
endangers their peace and
safety.

Example:
a. NATO (North Atlantic Treaty
Organization)- This is a treaty
signed in Washington on April 4,
1949, composed of Nations in
the North Atlantic area. Their
agreement: The parties agreed
among others, that an armed
attack against one or more of
them in Europe or in North
America is considered as an
attack against all of them.

b. SEATO (Southeast Asia Treaty


Organization) - This is also known
as the Manila Pact or the South East
Asia Collective Defense Treaty of
September, 1954. Their agreement:
An aggression against any of the
signatories will be considered as
endangering their peace and safety,
in which case, they obligate
themselves to
meet common danger in accordance
with their constitutional

Rationale behind collective selfdefense or alliances


1. There is strength in union and there
is security in collective strength.
2. To give the members the feeling of
safety through mutual protection
and outright combination of
strength.

CASES:

1.Nuclear power facility in Iraq was


destroyed by war planes of Israel
sometime in 1981. Israel claims
that it was justified in doing so
and interposed the ground of
preemptive self-defense. The
matter reached the UN Security
Council for resolution. RULING: It
was condemned as a clear violation
of the UN Charter and the norms of
international conduct, hence, Israel
was directed to refrain from such
act.

2. In connection with U.S. missile attack


which resulted to the destruction of two
Iranian offshore oil production
installations, alleging that Iranian oil
platforms were used as a staging facility
for attacks by Iranian forces against
shipping in the Gulf, the U.S. justified its
attack as a legitimate use of force and
self-defense. RULING: The ICJ was not
convinced that the U.S. attack was
necessary as a response to the shipping
incidents in the Gulf. In other words, the
force was not considered a proportionate
use of force in self-defense. The U.S. could
claim the right of self-defense only if it is
the victim of an armed attack by Iran.
(Iran vs. U.S., November 6, 2003)

3. A State may not exercise the collective


right of self-defense without the explicit
request for assistance from the State or
States on whose behalf the right is to be
exercised. This is the ruling of the
International Court of Justice when the
U.S. came to the defense of El Salvador,
Honduras and Costa Rica. In this case, the
court noted that there was no explicit
request for assistance by the said
countries, hence, the ICJ ruled that the
condition sine qua non required for the
exercise of the right of collective selfdefense was not fulfilled. (Nicaragua vs.
U.S. 1986). (I.C.J Rep. 14, June 27, 1986)

2. RIGHT OF SOVEREIGNTY AND


JURISDICTION
Sovereignty- Sovereignty is defined
as the supreme power of the State
by which that State is governed
(Moore, Digest of International
Law), or the supreme, absolute,
uncontrollable power by which any
State is governed. (Cooleys
Constitutional Limit)

It is also defined as the union and


exercise of all human powers possessed
in a State; it is the combination of all
powers; it is the power to do everything
in a State without accountability to
make laws, to execute and apply them,
to impose and collect taxes and levy
contributions, to make war or peace, to
form treaties of alliance or commerce
with foreign nations, and the like.
(Story, Constitution, Section 207)

BAR QUESTION, 2000


Q- The Philippines has become a member of
the World Trade Organization (WTO) and
resultantly agreed that it shall ensure the
conformity of its laws, regulations and
administrative procedures with its
obligations as provided in the annexed
Agreements. This is assailed for being
unconstitutional because this undertaking
unduly limits, restricts and impairs
Philippine sovereignty and means among
others that Congress could not pass
legislation that will be good for our national
interest and general welfare if such
legislation will not conform to the WTO
Agreements. Refute this argument.

A- Law of nations are founded in natural moral law and


common consent and that these are for their own good.
In fact, it will be observed that there is an increasing
diplomatic and economic intercourse among nations
represented by their respective Heads of States and
Ambassadors. As the saying goes, no man is an island
and each country needs the other not only in terms of
goods, products and commodities of all kinds that may
be needed in pursuit of their respective business or
trade but also in terms of technology and funding. The
Philippines adopts the generally accepted principles of
international law as part of the law of the land and
adheres to the policy of peace, equality, freedom,
cooperation and amity with all nations. A contract
entered into and executed by the State is binding to it,
and it may, if necessary, pass or approve a law to be
able to fulfill the obligations it has undertaken. (Tanada
vs. Angara, G.R. No. 118295, May 2, 1997)

Distinguish sovereignty from independence


Sovereignty is the supreme power of the
State by which that State is governed. It has
two aspects: internal and external. In its
internal aspect, sovereignty is the power
inherent in the people or vested in its ruler
by the Constitution to govern the State. Such
sovereignty does not, in any degree depend
upon its recognition by other States. A new
State, springing into existence, does not
require the recognition of other States to
confirm its internal sovereignty. In its
external aspects, sovereignty consists in the
independence of one political society in
respect to all other political societies.

The external sovereignty of any State


requires the recognition by other States in
order to render it perfect and complete. This
external manifestation is what is called
independence. (Malcolm, Constitutional
Law)
Simply stated, independence is freedom
from external control in the conduct of
external and internal affairs. If the
sovereignty of a country within its territory
is more or less recognized by other States,
said country is referred to as independent.

Is the sovereignty and


independence of a State absolute?
No. It is subject to the limitations
imposed by treaty stipulations, or
those arising from membership in
the UN.

Rights and benefits arising from States


sovereignty and independence
1.It determines its own form of government
2. It manages its own government
3. It can enter into treaties and conduct
foreign relations
4. It can determine its national policies
regarding national defense, natural
resources, immigration, currency, etc.
5. It manages its own affairs free from
control, dictation or intervention of other
States.

Obligations erga omnesObligation of a State towards


the international community
as a whole. (i.e., prohibition
against piracy, genocide, racial
discrimination, obligations
related to or for the protection
of human rights, environment
and self-determination)

Q- In case of breach of obligation


erga omnes, are the States
affected by such breach or the
States to which the obligation is
owed, entitled to any remedy?

A-Yes. They, and even if they are


not affected, may claim from the
responsible State the following:
1.Cessation of the internationally
wrongful act;
2.Performance of the obligations
of reparation in the interest of
the State, entity or individual
which is especially affected by
the breach;
3.Restitution should be affected
unless materially impossible.

BAR QUESTION, 2006


Q- What is the principle
of auto limitation?

A- Any State may, by its


consent, express or implied,
submit to a restriction of its
sovereign rights. It may, if it
chooses to, refrain from the
exercise of what otherwise is
illimitable competence. (Reagan
vs. Commission of Internal
Revenue, G.R. No. L-26379,
December 27, 1969)

Different kinds of Intervention


1. Internal and External Intervention
a. Internal intervention- is the interference
by one State in the purely domestic affairs of
another State.
b.External intervention- is the interference
by one State in the foreign relations of another
State.
2. Individual and Collective Intervention
a. Individual intervention- exists when only
one State interferes.
b. Collective intervention- exists when two
or more States interfere as a group.

3. Diplomatic and Armed Intervention


a. Diplomatic intervention (also called
intercession) - is interference through
diplomatic channels.
b. Armed (sometimes called punitive)
intervention- intervention through the use of
armed force. It would seem that today
armed intervention is unlawful under at
least

Two provisions of the UN


Charter:
1. Article 2, par. 3- All members

shall settle their international


disputes by peaceful means in
such a manner that
international peace and
security, and justice are not
endangered.

2. Article 2, par. 4- All members


shall refrain in their
international relations from the
threat or use of force against
the territorial integrity or
political independence of any
State, or in any other manner
inconsistent with the purposes
of the United Nations.

3. RIGHT OF EQUALITY
Meaning of equality in public
international law
It does not mean absolute
equality. It means legal equality or
equality before the law, which
means that the rights of the State,
regardless of its size, population,
power, degree of civilization,
wealth, etc. must be respected,
and if a State has obligations, it
has to respect them and comply
with them.

Example of legal equality:


1. Each State has one vote.
2. The vote of the smallest State
has the same right as the vote
of the most powerful State.
3. No State can claim jurisdiction
over another State (Par
inparem
non habet imperium).

4. Equality can only be retained if


there is dignity.
5. The courts of one State do not,
as a rule, question the validity
or legality of the official acts of
another sovereign State.

ARTICLE 2 OF THE UN CHARTER


REGARDING THE PRINCIPLE OF
SOVEREIGN EQUALITY OF ITS
MEMBERS
Weakness or limitation of the
principle of sovereign equality
It is difficult, if not absolutely
impossible, to enforce the said
principle because
(1) a permanent member has veto
power; and
(2) there are permanent and
temporary members in the Security

4. RIGHT OF PROPERTY AND


JURISDICTION
Three domain of a State
1.Terrestrial domain
2.Fluvial or maritime domain
3.Aerial domain

EXPLANATION OF THE THREE


DOMAIN OF THE STATE
1. TERRESTRIAL DOMAIN- (refers
to the area of land which the State
occupies)

POINTS TO REMEMBER:
1.Definition of our National
territory (Section 1, Article 1,
1987 Constitution)
2.Archipelagic doctrine- (Already
discussed)
3.Effect of the words and all
other territories over which the
Philippines has sovereignty or
jurisdiction.
4.What definitely fixes the extent
of Philippine territory?

MODES OF ACQUIRING
TERRITORIES
Different modes of acquiring
territories
1.Discovery and occupation
2.Prescription
3.Cession
4.Conquest and subjugation
5.Accretion

EXPLANATION OF EACH
DISCOVERY AND OCCUPATION- this
is an old mode of acquiring
ownership when territories which
were not yet discovered and
occupied can be acquired by the
discovering State under the principle
of Terra Nulius which means that
since it is a territory which is not yet
owned by or belonging to any State
(stateless territory), it can be
acquired under the principle of
discovery and occupation

Q- X State discovered a Stateless


territory and immediately, it took
the following steps:
(a) it proclaimed sovereignty over
the area;
(b) planted several flags in
different parts of the territory.
Will that be sufficient to ripen into
actual or real title?

Q- What right arises from


discovery and effective occupation
and administration?

A1.Actual or real title of the


territory acquired by effective
possession and administration
(Island of Palmas Arbitration
Case);
2.The continental shelf of the
territory discovered and
effectively occupied should also
belong to the acquiring State.

Continental shelf of a country- It


is that part of the seabed and
subsoil of the submarine areas
contiguous to the coast but
outside the area of the maritime
zone.

Why is the continental shelf


important?

It is important because
of the rich natural
resources found therein.
This is, in fact,
incorporated in the
Petroleum Act.

Q- Are the Kalayaan Islands (those


discovered then by Tomas Cloma)
subject to the sovereignty of the
Philippines?

A- There are justifiable reasons


supporting the view that the
Kalayaan Islands are subject to
Philippine sovereignty.
First, there was discovery by
Tomas Cloma, a Filipino, who
subsequently ceded these rights to
the Philippine Government.
Second, the Philippines exercised
its jurisdiction over the islands;

Third, the Philippines laid a formal


claim to the islands by virtue of
occupation;
Fourth, the islands are part of
Palawan Province;
Fifth, the Philippines registered
its claim with the UN Secretariat.

PRESCRIPTION
Elements of prescription as a mode
of acquiring territory
1.Possession which must be
continuous, public and adverse.
2.Lapse of a reasonable period of
time (which is a question of fact
and dependent on the
circumstances of each case.)

CESSION
Cession- It is a mode of acquiring
territory made either voluntarily
(sale or donation) or involuntarily
(on account of or as a result of
war)

Example:
1.Cession of Alaska by Russia to
the US in 1867.
2.Cession of the Philippines by
Spain to the US. (Treaty of
Paris, December 10, 1896)

CONQUEST AND SUBJUGATION


Conquest- It is the acquisition
of sovereignty of a country by
force of arms, exercised by an
independent power, which
reduces the vanquished to the
submission of its empire.

Is physical conquest enough for


the title to ripen to real
ownership?
It is not enough. Annexation or
subjugation must follow.

When is there an annexation or


subjugation?
It takes place if a formal cession is
made in the treaty of peace.

Q- Is conquest a legitimate mode


of acquiring territory under the UN
Charter?

A- No. REASON: All members shall


refrain in their international
relations from the threat to use of
force against the territorial
integrity or political independence
of any State, or in other manner
inconsistent with purpose of the
UN. (Article 2[4], UN Charter)

ACCRETION
Accretion- It is a mode of acquiring
property produced by or which is
attached or united to a thing already
owned by a person. In Roman Law, this
is known as accession which may either
be:
Accessio Continua- Accession occurring
as a consequence of forces external of
the thing itself.
Accessio Discreta- Accession occurring
as a consequence of forces inherent in
the thing itself.
Accessio Continua may be natural or
artificial.

NATURAL ACCESSIO CONTINUA


1.Alluvion- Gradual and
imperceptible addition to the
bank of rivers.
2.Avulsion- Accretion which takes
place when the current of the
river, creek or torrent
segregates a known portion of
land from an estate on its banks
and transfer it to another estate.

3.Insula Nata- An island formed in


the sea. It is the property of the
first occupants but it belongs to
no one before it was occupied. If
it is formed in the river, and it
occupies in the middle of the
river, it belongs to the owner of
the nearer margin. If it is nearer
to one side than the other, it
belongs to the person who
possess lands contiguous to the
bank on that side.

4.Alveus Derelictus- Whenever


there is a change in the course
of the river, the old riverbed
belongs to those who possess
the lands adjoining its banks in
proportion to the extent along
the banks to their respective
estates. The new riverbed
becomes a public property.
NOTE: The same are old Roman Law
Principles which are still found and
discussed in our Civil Code, particularly
in connection with the law on property.

THE SAID PRINCIPLES BECAME


THE BASIS OF THE PRINCIPLE
THAT WHEN ISLANDS ARE
FORMED OFF THE COAST OF A
STATE BY ALLUVION, VOLCANIC
ACTION, OR OTHER CAUSES, THEY
BECOME PART OF THE STATE TO
WHICH THE COAST BELONGS.

FLUVIAL DOMAIN- (it refers to the


internal and external waters)
Q- What is included in the fluvial or
maritime domain?
A- 1. Internal waters- (These are
completely within the territory)

1. Rivers
2.Bays and gulfs
3.Straits
4.Canals

2. Archipelagic waters

(2nd sentence of Section 1,


Article 1, 1987 Constitution)The waters around, between,
and connecting the islands of
the archipelago, regardless of
their dimensions, form part of
the internal waters of the
Philippines.

Q- What is the archipelagic


Doctrine?

A- Under this doctrine, the


Philippine archipelago is
considered as one integrated unit
instead of being divided into more
than seven thousand islands. This
assertion, together with the
application of the straight base
line method, is what is referred to
as the Archipelagic Doctrine. By
using this method, the outermost
points of our archipelago are
connected with straight baselines
and all waters inside the baselines
are considered as internal waters.

Q- Can vessels be allowed


innocent passage within the
archipelagic waters?

A- Yes, but this right may be


suspended, after publication in the
interest of the international
security.

Q- Can the archipelagic sea lanes


be designated for continuous,
unobstructed transit of vessels?

A- Yes.

Q- What is the easement of


innocent passage?

A- It is the right of foreign vessels to


pass through territorial waters,
especially those connecting two open
seas, provide:
1.That the passage is innocent which
means that there is no ulterior
motive for the passage, and all the
regulations of the State concerned
must have been complied with; and
2.That there is only a passage which
means that there is merely a passing
through, with no loading or
unloading of any person or goods.

Q-Is this rule absolute?

A-No. This may be


regulated by a treaty.

Q-What is the freedom of


navigation?

A-It refers to the right to


sail ships on the high
seas, subject only to
international law and the
laws of the flag state.

Q- what is referred to as
the contiguous zone?

A-It is the zone extending up to 12


nautical miles from the territorial
sea. Although it is not technically a
part of the territory of the state, the
coastal state may exercise limited
jurisdiction over the contiguous
zone as a preventive measure to
insure that the customs laws,
immigration and sanitary laws are
properly and effectively enforced.

Q-What is referred to as
the exclusive economic
zone?

A-It is the zone which


extends up to 200 miles
from the low water mark
or the baselines as the
case may be.

Q-It was mentioned


earlier that the area
beyond the territorial sea
is not part of the territory
of the State. Does this
mean that the coastal
State has absolutely no
rights over the said area?

A-While it is true that the said


area is not owned by any
State, it does not mean that
the other States have
absolutely rights whatsoever
to the use of the same. They
may enjoy the following rights:

1.As already mentioned


earlier, other States may
enjoy the right of
innocent passage
through the said area on
two conditions, as
aforementioned.

2.The costal State may


exercise sovereign rights
over economic resources
of the sea, seabed , subsoil.

3.Other state shall have


freedom of navigation
and over-flight, to lay
submarine cables and
proper lines and other
lawful uses.

An example of the
Philippine exclusive
economic zone is the
SCARBOROUGH SHOAL,
which is situated about
135 kilometers from Iba,
Zambales.

Q-what is referred to as
the continental shelf?

A-It is the sea-bed and subsoil of


the submarine areas that extend
beyond its territorial sea
throughout the natural prolongation
of its land territory to the outer
edge of the continental margin, or
to a distance of 200 miles from the
baselines from which the territorial
sea as measured where the outer
edge of the continental margin does
not extend up to that distance.

Q-Can the costal state


enjoy the right of
exploitation of oil
deposits and other
resources in the
continental shelf?
A-Yes.

AERIAL DOMAIN-(it
refers to the air space
above the land and
waters)

Q- What are the


important principles
regarding aerial
jurisdiction?

A-1. AIR SPACE ABOVE


THE TERRITORY OF THE
STATE- They are
completely subject to the
sovereignty of the State
just like the fluvial
domain.

2. FREE AERIAL
NAVIGATION- Air, like
the high and open seas,
is open to free navigation
by all aircraft, domestic
and foreign, subject to
the right of the State to
provide for the security
of the territory.

3. TWO-ZONE THEORY
There is a lower zone of
territorial air space and a
higher unlimited zone of
free air space.

4. SOVEREIGNTY IS
SUBJECT TO EASEMENTWhile the sovereignty
over the air space
remains with the
subjacent State, it is
subject to the easement
of innocent passage for
foreign aircraft.

Q-What are the present


rules on international
aviation?

A-1. Regular Airline


Services-Schedule
landings and departures

2. All other forms of


international aviation
(a.) Flights in transit is
recognized without prior
permission
(b.) Refueling stops is
recognized without prior
permission.

(c.) Right of cabotageRight to transport goods


and persons between
points in the same State.
(d.) Aircraft carry the
nationality of the State
of registration.

Q. What are the other


rules to remember?

A-1.Every State has


complete and exclusive
sovereignty over the
airspace above its
territory. This shall not
include outer space.

2. No other States have


right of innocent passage
over the air territory of
another State.

3. The outer space is res


communes, like the high seas. It
is free for exploration and use
by all State but it cannot be
annexed by any state (Outer
Space Treaty of 1967). And they
may be used only for peaceful
purposes, (e.i., nuclear weapons
of mass destruction may not be
placed in orbit around the earth.

RIGHT OF LEGATION OR
DIPLOMATIC
INTERCOURSE

Q-What is the right of


legation?

A-This is the right of the State


to send envoys or establish
diplomatic missions, or the
right to receive such envoys
or missions. The first is
known as the active right of
legation. The second is known
as the passive right of
legation.

A-1. Head of State-He


represents the
sovereignty of the state.
Pointers:
The conduct of foreign
relations is essentially an
executive function.

2.The president alone cannot,


however, execute and
implement our foreign policies.
The DFA, represented by the
secretary of foreign affairs,
executes our foreign policies
through the various diplomatic
and consular officials.

3.The Head of the State


may conduct diplomatic
intercourse personally in
the following instances:
a. When he attends a
summit conference;

b. When he visits foreign


states officially.
b.1. Case of official visit,
the head of state is
entitled to full diplomatic
honors and privileges.

b.2. If the head of State


travels incognito, he
cannot claim diplomatic
immunity unless he
decides to reveal and
prove his identity.

b.3. If the incognito visit is


with the knowledge of the
State concerned, he receives
diplomatic privileges.
However, to preserve the
unofficial character of the
mission, he does not get
ceremonial honors.

FOUR CLASSES OF
DIPLOMATIC OFFICERS

1.Ambassadors they
are the political, cultural,
economic, and social
representatives of their
countries to a foreign
State. Their offices are
called as embassies.

2.Ministers
plenipotentiary or envoys
extraordinary-they are
ministers assigned to
attend special to a
special function (i.e.,
signing a treaty).

3.Ministers resident
they are the political,
cultural, economic, and
social representatives of
their countries to a
foreign principal city,
their offices are known
as legations.

4.The charges daffaires (in


charge of affairs)- They are
those officially below the rank
of the ministers resident. They
take over when the latter is
absent. In other words, they
are temporarily in charge no
matter what their official rank
or designation may be.

Q-Who assist the Heads


of Mission?

A-1. Diplomatic Staff


(Engage in diplomatic
activities and accorded
diplomatic rank)

2. Administrative and
technical Staff
(those employed in the
administrative and
technical service of the
mission)

3. Service Staff (those


engaged in domestic
service of the mission).

Q-What is the meaning of


Diplomatic Corps?

A-All diplomatic envoys accredited


to same State form a body known
as a Diplomatic Corps. The head
of this body is usually the Papal
Nucio, if there is one, or the oldest
ambassador. If there is no
ambassadors, it is the oldest
minister plenipotentiary who is the
head of the diplomatic corps

APPOINTMENT OF
DIPLOMATIC OFFICIALS

Q-Who appoints
ambassadors, other
public ministers and
consuls?

A-The President shall


nominate and, with
consent of the Commission
on Appointment, appoint
ambassadors, other public
ministers and consuls.
(Section 16, article VII,
1987 Constitution)

Q-Is the sending State


absolutely free in the
choice of diplomatic
representatives of
officials?

A-No. The receiving State


has the right to refuse to
receive as envoy of
another state one whom
it considers a persona
non grata.

Q-What is agreation?

A-It is an informal inquiry


(enquiry) to find out the
acceptability of a proposed
envoy and an informal
conformity (agreement) of
the receiving State to the
appointment of the said
envoy.

Q-what happens if an
appointment is made
without agreation?

A-this amounts to
diplomatic faux pas
because without
agreation, there may
possibly be an
embarrassment.

Q-What are the papers


that the envoy presents
to the receiving State?

A-1. A letter of credence (letre


de creance)-This states the
name of the representative, his
rank, the character and general
object of this credence. It is also
contains a request for favorable
reception and full credence. It is
sealed but the ambassador has
copies of the same.

2.A diplomatic passport


This authorizes his travel
and describes both his
person and his office.

3. His instructionsSpecial diplomatic agents


receive a document of
general full powers
(pleins pouvoirs) with
authority to negotiate on
extraordinary or special
business.

4.The cipher or code or


secret key- For
communication with his
country.

Q-What are the functions


and duties of a
diplomatic missions?

A-The main functions of


a diplomatic mission are:

a) To promote Friendly
relations between the
sending state and the
receiving State, and the
development of their
economic, cultural and
scientific relations;

b) To observe and report


to his country the
developments in the
receiving State;

e) To negotiate with the


government of the
receiving State.

c) To protect the
interests of the nationals
of his country within the
limits allowed by
international law;

d) To represent his
country in the receiving
state;

WAIVER OF IMMUNITIES

Q-Can diplomatic
immunities and
privileges be waived?

A-(1) If purely personal,


the individual concerned
may make the waiver.

(2) If the right is not


personal but official, the
home government must
make the waiver in
behalf of the chief of
mission.

(3) In the case of


subordinates, the waiver
of non-personal rights is
done either by the home
government or by the
chief of mission himself.

Q-How may the waiver


be made?

A-Waiver may be made


in the following ways:

1.Express waiver as
already discussed;

2.Implied waiver
failure to assert
immunity at the time of
suit;

3.Presumed waiver when the


envoy himself sues, he necessarily
should allow a counterclaim against
himself if it should arise from the
same transaction; and sometimes
even if the countersuit comes from
an unrelated claim (National City
Bank of New York vs. Rep. of China,
348 U.S. 356)

Q-What is the right of


Asylum?

A-The right of asylum is the


authority of a State to allow an
alien who has sought refuge
from prosecution or
persecution to remain within
the territory and under its
protection. (OppenheimLauterpact, Public
International Law, Vol. I, p.
618)

Q-What are the two


species of asylum?

A-(1) Territorial asylum-refuge


within the territory of the
sheltering state, the protection
which a refugee obtain by
escaping to, or remaining upon,
the territory of a State other than
that the state that wants him,
until the protection is terminated
by his extradition.(McNair, Law
on Treaties, Vol. II p. 67)

(2) Exterritorial asylum

asylum in what are


considered the extension
of a states territory. This
type includes:
(a) asylum in foreign public
ships;

(b) diplomatic asylum


the protection afforded by
a refugee by granting him
an asylum in or upon its
diplomatic buildings
within the territory of the
state that wants him.
(Ibid)

Q-What is the duration of


the said immunities and
privileges?

A-The are enjoy by the


envoy from the moment he
enters the territory of the
receiving state and shall
cease when he leaves the
country. With respect to
official acts, however,
immunity shall continue
indefinitely.

Q-Are the said


immunities and
privileges available when
the envoy is not in the
territory of the receiving
state?

A-Yes They are available


even in transitu, or while
travelling through a third
State on the way to or
from the receiving State.

Q-When is a diplomatic
mission terminated?

A-It is terminated in case of


death, resignation, removal
or abolition of office, recall
by the sending State,
dismissal by the receiving
State, war between the
receiving State and the
sending State, or by the
extinction of the State.

EXTRADITION

BAR QUESTION, 1937,


1941, 1946, 1949
Q-What is extradition?

A-Extradition is the removal of


an accused from the requested
State (the Asylum State) with
the object of placing him at the
disposal of foreign authorities
to enable the requesting State
or government to hold him in
connection with criminal
investigation directed against
him

or the execution of a penalty


imposed on him under the
penal or criminal law of the
requesting State or
government. (Presidential
Decree No. 1069, Philippine
Extradition law, Article 2 [a])

BAR QUESTION, 1922,


1924, 1930, 1931, 1937,
1939, 1941 and 1946
Q-Briefly State (a) under
what authority a fugitive
from justice may be
extradited, (b) the persons,
and (c) offenses subject to
extradition.

A-(a) the extradition may


be implemented on the
basis of an extradition
treaty between the
parties (the party
requesting the same and
the party being
requested).

(b) they are those


charged or convicted of
offenses which under the
treaty are grounds for
extradition.

(c) they are those


offenses which are
defined and listed in the
extradition treaty.

Q- can the State being


requested be compelled
to surrender a criminal
to a requesting State?

A-Yes, if there is an
extradition treaty to that
effect. Of course, a State
may voluntarily extradite
a criminal even without
an extradition treaty.

BAR QUESTION, 1993


Q-What is the difference,
if any, between
extradition and
deportation?

Extradition
1.The surrender
by force of a
wanted person by
the requested
State to the
requesting State
2. May only be
made pursuant to
a treaty between
the requesting
State and the
requested State
3.It is for the

Deportation
1.The expulsion of
an unwanted or
undesirable alien.
2. It is an exercise
of sovereignty and
decision made by
a State.
3. It is an order of
a State acting on
its own and
according to its
laws, interest and
processes

BAR QUESTION, 1969


Q- A Japanese woman came to
the Philippines and was admitted
as transient. It was found a few
days later that her passport was
forged. Deportation proceedings
were then started against her.
Ten days later, she married a
Filipino. Could she still be subject
for deportation?

A-The Government of the


Republic of the Philippines has
absolutely the right to allow,
prohibit or deport any alien is
therefore subject to the
approval and consent of our
government and if it decides to
deport an alien, that is purely a
matter of right on the part of
our government.

CONSULAR OFFICIALS
Q- What is a consul?

A-A consul is a commercial agent


appointed by his Government to
reside in a foreign city, and
permitted by the foreign State to do
so in order that he may watch over
the commercial rights and
privileges of his own country
therein and thus protect the rights
of his countrys nationals.

Q-What are the different


kinds of consul?

A-As to character
a) Consules missi (consuls
de carrier)- Literally this
means consuls of career.
They are professional
consuls, hence, they are
not allowed to engage in
any other profession or
business;

b) Consules electi They are also


known as honorary or commercial
consuls. They are selected by the
appointing Government either
from its own citizens engaged in
business in the country in which
they will be allowed to exercise
consular functions, or from
among the nationals of t he
foreign state involved.

As to rank
A) Consul-general- He
heads several consular
districts, or one
exceptional large
consular district;

B) Consul- He takes charge


of a small district or town or
port;
C) Vice-consul-He assist the
consuls;
D) Consular-agent-He is
usually entrusted with the
performance of certain
functions of the consul.

Q-What are the two


important documents
necessary before the
assumption of consular
functions?

A-1) letter patent (lettre de


provision) This is the letter
of appointment or
commission which is
transmitted by the sending
state to the Secretary of
Foreign Affairs of the
country in which the consul
is to serve; and

2) Exequator-This is the
authorization given by the sovereign
of the receiving State to the consul,
allowing him to exercise his functions
within the territory. (See Lawrence,
Principles of International Law, p.
297). The exequator may be granted
conditionally; the grant may even be
refused for any or no reason; once
granted, the exequator may be
unilaterally withdrawn.

Q-What are the functions


of consular officers?

A-Generally, the functions pertain


to commerce and navigation and
other administrative functions
like issuing visas (permits to visit
his country), as
contradistinguished from
passports (permits to leave the
country, and which are usually
issued by the Department of
Foreign Affairs). Under Article 10
of the Family Code of the
Philippines,

marriages between Filipino


citizens abroad may be
solemnized by a consul or viceconsul of the Republic of the
Philippines. The issuance of the
marriage license and the duties of
the local civil registrar and of the
solemnizing officer with regard to
the celebration of marriage shall
be performed by said consular
official.

Q-What are the


immunities and
privileges of consular
officials?

A-Unless given some diplomatic


functions, consuls are not generally
entitled to diplomatic immunity (U.S
vs. Wong kim Ark, 167 U.S. 649).
They are, however, granted some
privileges and immunities which may
be essential for the proper
performance of their of their
consular duties, such as those
granted under the 1963 Vienna
Convention on Consular Relations, to
wit:

1. They are not allowed


freedom of communication
in cipher or otherwise;
2. Inviolability of archives,
but not of the premises
where legal processes may
be served and arrest made;

3. They are exempt from local


jurisdiction for offenses
committed in the discharge of
official functions, but not other
offenses except minor
infractions;
4. They are exempt from
testifying on official
communications or on matters
pertaining to consular functions;

5. They are exempt from


taxes, customs duties,
military or jury service;
and
6. They may display their
national flag and emblem
in the consulate.

Q-What are the causes of


termination of consular
functions?

A1) Death of consular


official
2) Recall or dismissal of
the consul
3) Withdrawal of the
exequator

4) Outbreak of war
between the two states
involved
5) Expiration of the period
of appointment (if such
period had been specified)
6) Disruption of consular
relations.

JURISDICTION OF
STATES

Q-What is referred to as
the jurisdiction of a
State?

A-It is the power


exercised by the State
over persons, property,
transactions or events.

Q-What must be
considered by a State in
the definition of its
jurisdiction over persons,
property, transactions or
events.

A-A State must give due


consideration to the
interests of the
international community as
a whole and it should avoid
undue encroachments on
the interests of the other
members of the community.

Q-What is the basis of


jurisdiction of a State?

A-It is based on the


following principles:
1. Territorial principle
2. National principle

3. Protective principle
4. Universality principle
5. Passive personality
principle

EXPLANATION OF EACH
1.TERRITORIAL PRINCIPLE
a. With respect to all
persons, things,
transactions or happenings
within its territorial limits
A State exercise exclusive
jurisdiction (executive,
legislative, and judicial)

b. Extent to which a State


exercises jurisdiction
over persons or acts done
outside its territory.
It is narrower and
depends on the kind of
jurisdiction it seeks to
invoke.

Example:
There are no territorial
limitations on the exercise
of legislative functions in
civil matters but the State,
as a rule, has criminal
jurisdiction only over
offenses committed within
its territory except in the
following instances:

(a) If the same are continuing


offenses which means that the
commission of the crime has started
in one State and is consummated in
another State, in which case, both
States have jurisdiction. The State
where the crime is committed assumes
what may be called subjective
jurisdiction. While the state where the
crime is completed assumes
objective territorial jurisdiction.
NOTE: The exemptions from territorial power and
jurisdiction, as discussed later.

2. NATIONALITY PRINCEIPLE-This
means that the state may punish
offenses committed by its nationals
anywhere in the world. In civil
matters, the personal laws of many
countries which have adopted the
continental legal system follow
their nationals wherever they are.

(i.e., Income tax laws also apply


to persons on the basis of
nationality rather than
territoriality)
Example: Article 15 of our new
Civil Code which provides as
follows:
Laws relating to family rights and
duties or the status, condition and
legal capacity of persons are
binding upon citizens of the
Philippines, even though living
abroad.

3. PROTECTIVE PRINCIPLEStates claim extraterritorial


criminal jurisdiction to punish
crimes committed abroad
which are prejudicial to their
national security or vital
interests, even where the
offenses are perpetrated by
non-nationals. Article 2 of our
Revised Penal Code provides
as follows:

except as provided in the treaties


and laws of preferential
application, the provisions of this
Code shall be enforced not only
within the Philippine Archipelago,
including its atmosphere, its
interior waters and maritime zone,
but also outside its jurisdiction,
against those who:

1. Should commit offense while


on a Philippine ship or airship;
2. Should forge or counterfeit
any coin of currency note of
the Philippine islands or
obligations and securities
issued by the government of
the Philippine Island;

3. Should be liable for acts


connected with the
introduction into these island
of the obligations and
securities mentioned in the
preceding number;
4. While being public officers
or employees, should commit
an offense in the exercise of
their functions; or

4.Should commit any of


the crimes against
national security and the
law of nations, defined in
the Title One of the Book
Two of this Code.

4. THE UNIVERSALITY PRNCIPLEUnder this principle, a State also


claims extraterritorial jurisdiction
over all crimes regardless of where
they are committed or who
committed them, wherever
nationals or non-nationals.
Although this principle is generally
considered as forbidden by
international law, it is recognized
with respect to crimes which
threaten the international

community as a whole and which


are considered criminal offenses in
all countries. These are referred to
as universal crimes (i.e.,
terrorism, genocide, piracy,
slavery, and hijacking). The
recognition,

however, does not extend with


respect to the enforcement of an
action (i.e., the agents of the State
cannot effect an arrest or make an
apprehension in territory of
another State without the latters
consent). This considered as a
serious violation of international
law an infringement of the
sovereignty of the non-consenting
State.

5.PASSIVE PERSONALITY
PRINCIPLE
The State exercises
jurisdiction over crimes
against its own nationals
even if committed
outside its territory.

Q-What is the power and


jurisdiction of the State
(1) over persons and
things within its
territory; (2) over its
nationals; (3) outside its
territory ?

A-1. Territorial power and


jurisdiction- The State has
power and jurisdiction
over persons and things
within its territory. Those
who are exempt from this
power and jurisdiction are
the following:

1.a) Foreign states, heads of


state diplomatic
representatives, and consuls
to a certain degree;
1.b) Foreign state property,
including embassies,
consulates and public vessels
engage in non- commercial
activities;

1.c) Acts of state;


1.d) Foreign merchant
vessels exercising the
rights of innocent
passage or involuntary
entry, such arrival under
stress;

1.e)Foreign armies passing


through or stationed in its
territory with its permission; and
1.f) Such other persons or
property, including organizations
like the United Nations, over
which it may, by agreement,
waive jurisdiction.

CASE
CALLADO VS.
INTERNATIONAL RICE
RESEARCH INSTITUTE
G.R. NO. 106483, MAY
22, 1995

PARTICULAR SUBJECT:
IMMUNITY FROM SUIT
PRINCIPLE: The
International Rice
Research Institute, Inc.,
enjoys immunity from
penal, civil and
administrative
proceedings.

FACTS:
Ernesto Callado was employed as
a driver at the international Rice
Research Institute (IRRI) from
April 11, 1983 to December 14,
1990. On February 11, 1990,
while driving an IRRI vehicle on
an official trip to the Ninoy
Aquino International Airport and
back to the IRRI, petitioner figure
in an accident.

IRRI issued a notice of


termination to Callado on
December 7, 1990. Thereafter,
Callado filed a complaint on
December 19, 1990, before the
Labor Arbiter for illegal
dismissal, illegal suspension
and indemnity pay with moral
and exemplary damages and
attorneys fees.

On January 2, 1991, IRRI, through


counsel, wrote the Labor Arbiter
to inform him that the institute
immunity from legal process by
virtue of the article 3 of
Presidential Decree No. 1620, and
that it invokes such diplomatic
immunity and privileges as an
international organization in the
instant case filed by Callado, not
having waived the same.

While admitting IRRIs defense of


immunity, the labor Arbiter ,
nonetheless, cited an Order issued by the
institute on August 13, 1991 to the effect
that in all cases of termination, IRRI
waives its immunity, and, accordingly,
considered the defense of immunity no
longer a legal obstacle in resolving the
case. On October 31, 1991, the Labor
Arbiter ordered to reinstate Callado and
to pay him back wages.

The NLRC found merit in


IRRIs appeal and finding
that IRRI did not waive
its immunity, set aside
the Labor Arbiters
decision and dismissed
the complaint.

Callado contented that the


immunity of the IRRI as an
international organization granted
Article 3 of presidential Decree No.
1620 may not be invoked in the
case at bench inasmuch as it
waived the same by virtue of its
memorandum on Guidelines on
the handling of dismissed
employees in relation to P.D. 1620

It is also Callados position that a


dismissal of his complaint before
the Labor arbiter leaves him no
other remedy through which he
can seek redress. He further
states that since the investigation
of his case was not referred to the
council of IRRI Employees and
Management (CIEM), he was
denied his constitutional right to
due process.

ISSUE:
Is PD. No. 1620 constitutional?
Is IRRI immuned from the
jurisdiction of the Department of
Labor and Employment?
HELD:
Presidential Decree No. 1620,
Article 3, provides:

Article 3. Immunity from Legal


Process. The Institute shall enjoy
immunity from any penal, civil and
administrative proceedings, except
in so far as that immunity has
been expressly waived by the
Director-General of the Institute
or his authorized representative.

The grant of immunity to


IRRI is clear and
unequivocal and an
express waiver by its
Director-General is the
only way by which it may
relinquish or abandon
this immunity.

On the matter of waiving its


immunity from suit, IRRI had made
it position clear. Through counsel,
the institute wrote the Labor Arbiter
categorically informing him that the
institute will not waive its diplomatic
immunity. In the second place,
Callados reliance on the
Memorandum with Guideline in
handling cases of dismissal of
employees in relation to P.D. 1620
dated July 26, 1983, is misplaced.

The Memorandum reads, in part:


Time and again the institute has
reiterated that it will not use its
immunity under P.D. 1620 for the
purpose of terminating the services of
any of its employees. Despite
continuing efforts on the part of IRRI to
live up to his undertaking, there
appears to be apprehension in the
minds of some IRRI employees. To help
allay these fears the following
guidelines will be followed hereafter by
the personnel/legal office while
handling cases of dismissed
employees.

Callados allegation that he was denied


due process is unfounded and has no
basis. He was informed of the findings
and charges resulting from an
investigation conducted of his case in
accordance with IRRI policies and
procedures. He had a chance to
comment thereon in a Memorandum he
submitted to the Manager of Human
Resource and Development
Department. Therefore, he was given
proper notice and adequate opportunity
to refute the charges and findings,
hereby fulfilling the basic requirements
of due process.

Callado was not denied due process,


and this, notwithstanding the nonreferral to the council of IRRI
Employees and Management. IRRI
correctly pointed out that Callado,
having opted not to seek the help of
the CIEM Grievance Committee,
prepared his answer by his own self.
He cannot now fault the institute for
not reffering his case to the CIEM.

OTHER CASES

In International Catholic
Migration Commission vs. Hon.
Calleja, et al., and the
Kapisanan ng mga
Manggagawa at TAC sa IRRI
vs. Secretary of the Labor and
Employment and IRRI, 190
SCRA 130 [1990]-

In this case, the constitutionality of


P.D. No. 1620 was sustained. The court
took into consideration that the Acting
Secretary of Foreign Affairs wrote a
letter to the Secretary of Labor and
Employment. The court stated that the
opinion contained in the said letter
constituted a categorical recognition
by the executive Branch of the
Government that IRRI enjoy immunities
accorded to the International
Organization which determination has
been held to be a political question
conclusive upon the courts in order not
to embarrass a political department of
government.

In Southeast Asian Fisheries


Development Center vs. NLRC,
et al., G.R No. 82631, February
23, 1995-In this case,
Southeast Asian Fisheries
Development Center
-Aquaculture Department
(SEAFDEC-AQD), an
international agency, enjoys
diplomatic immunity.

Lasco, et al. vs. UNRFNRE, etc.,


G.R. No. 109095, February 23,
1995- In this case , the diplomatic
immunity of respondent was
sustained.

In World Health
Organization vs. Aquino
48 SCRA 242 [1972]

-In this case, the diplomatic immunity of


World Health Organization was sustained. The
Supreme Court justified its decision in this
manner . As a matter of state policy as
expressed in the constitution, the Philippine
Government adopts the generally accepted
principles of International law (1987
constitution , Article II, Section 20). Being a
member of the United Nations and a party to
the convention on the Privileges and
Immunities of the Specialized Agencies of the
United Nations, the Philippine Government
adheres to the doctrine of immunity granted
to the United Nations and its specialized
agencies. Both treaties have the force of law.

It is a recognized principle of the


International law and under our system
of separation of powers that diplomatic
immunity is essentially a political
question and courts should refuse to
look beyond a determination by the
executive branch of the government.

It is the duty of the court to accept the


claim of the immunity upon appropriate
suggestion by the principal law officer
of the government, in adherence to the
settled principle that courts may not so
exercise their jurisdiction by seizure
and detention of property, as to
embarrass the executive arm of the
government in conducting foreign
relations, it is an accepted doctrine that
in such cases the judicial department of
the government follows the action of
the political branch and will not
embarrass the latter by assuming an
antagonistic jurisdiction.

In Holy See vs. Rosario, G.R. No.


101949, December 1, 1994- In this
case, the diplomatic immunity of
respondent was sufficiently
established by the letter of the
Department of foreign Affairs
recognizing and confirming the
immunity of the UNRFNRE in
accordance with the 1946
Convention on Privileges and
Immunities of the United Nations
where the Philippine government
was a party.

2. Personal jurisdiction-The State


has power of jurisdiction over its
nationals, which may be exercised
by the State even if the individual
is outside the territory of the
State.

3. Extraterritorial
jurisdiction- The State
has power and
jurisdiction beyond or
outside its territory:

3.a. When it asserts its personal jurisdiction


over its nationals abroad; or the exercise of its
rights to punish certain offenses committed
outside its territory against its national
interest even if the offenders are non-resident
aliens;
3.b. When the local state waives its
jurisdiction over persons and things within its
territory, such as when a foreign army
stationed therein remains under the
jurisdiction of the sending state;
3.c. When it establishes a colonial
protectorate, or a condominium, or
administers a trust territory, or occupies
enemy territory in the course of war;

3.d. When it enjoys easements or servitudes


(i.e., easement of innocent passage or arrival
under stress;
3.e. When it exercises jurisdiction over its
vessels in the high seas, or over pirates while
doing hot pursuit operation;
3.f. When it exercises limited jurisdiction over
the contiguous zone and the patrimonial sea
to prevent infringement of its customs, fiscal,
immigration or sanitary regulations;
3.g. When it exercises the principle of
exterritoriality (i. e., immunities of a head of
state in a foreign country).

EXEMPTIONS FROM
JURISDICTION

Q What are the


exemptions from
jurisdiction?

A1.Doctrines of sovereign
immunity
a. Restrictive doctrine
of
sovereign immunity
2. Act of State doctrine
3.Diplomatic immunity

EXPLANATION OF EACH
1.DOCTRINE OF STATE
IMMUNITY
Q-What is the doctrine
of sovereign immunity?

A-Under this doctrine, a


State enjoys immunity
from the exercise of
jurisdiction by another
State. The courts of one
State may not assume
jurisdiction over another
State.

Q-Is this rule absolute?

A-Originally, It was
absolute, hence, a State
then may invoke sovereign
immunity irrespective of the
nature of its activities.
However, the application of
this doctrine was restricted
and qualified in the
following manner:

1.Sovereign immunity was


granted only to acta jure imperii
(government act) and not to
acta jure gestionis (commercial
act). Example: When a State
engages in international trade,
it shall be regarded as a private
entity and may not claim the
rights, privileges and
immunities of a sovereign.

(1.a) RESTRICTIVE DOCTRINE


OF SOVEREIGN IMMUNITY
As already mentioned,
absolute sovereign immunity
is no longer recognized. This
doctrine denies sovereign
immunity with respect to
States activities of
commercial nature.

2.Act of State Doctrine


(Already discussed)

3.DIPLOMATIC IMMUNITY
Q-What are the diplomatic
immunities and privileges
which are accorded by
traditional usage?

A1. Personal dignity and


inviolability of diplomatic envoy;
2.Inviolability of the official
residence, archives, and letters;
3.Freedom to communicate on
official matters with the home
state and with the envoys
nationals;
4.Exemption from local criminal
and civil jurisdiction for official
and private acts;

5.Exemption from being subpoenaed as


a witness or from being forced to give
testimony through a deposition;
6.Exemption from taxation and customs
duties. (NOTE: This is granted
because of international courtesy);
7.Right to display the national flags and
coat of arms in the proper buildings;
8.Freedom of movement within the
territory;

9.Right of transit through third


states. (NOTE: A diplomat in
transitu would be entitled to the
same immunity as a diplomat in
situ ) (Bergmann vs. De Sieyes,
170 F. 2nd 360).
10.Freedom of religion;
11.Right to exercise jurisdiction
within his residential and
official domicile (thus he may
for instance arrest a member of
his suite).

12.Right to precedence
and to certain
ceremonial honors,
according to rank.
(Opprenheim, op. cit.,
pp. 627-631);
13.Right to grant asylum.
(In certain instances).

BAR QUESTION, 1980


Q-J, a foreign national, is an
official of specialized agency of
the United Nations assigned to
the Philippine. Almost a year
after his arrival in Manila
(Where his office is located),
20 big crates all consigned to
him arrived in the port of
Manila and were immediately
stored in a bonded warehouse.

The Constabulary Antismuggling Unit, acting on a


reliable goods and also
prohibited importations, apply
to you, as a Judge of the Court
of First Instance, to issue a
search warrant. The
application, under oath,
describes particularly the goods
to be searched as well as the
place where they are located.

1. Would you, assuming you were a CFI


Judge, issue the search warrant?
Why?
2.Assuming that you decide to issue
the search warrant, and the Solicitor
General moves to quash the same
because the owner of the goods to be
searched is entitled to diplomatic
privileges including immunity from
searched warrant, what will you do,
convinced as you are that the crates
in question contain highly dutiable
goods and even prohibited items of
importation?

A-(1) If J is indeed an official


of a specialized agency of the
U.N. with an assignment in the
Philippines and this is certified
by the Department of Foreign
Affairs and the Office of Solicitor
General, I will, in the exercise of
prudence and caution, act upon
advice, consultation with and
motion of the Office of the
Solicitor General.

(2) It is the duty of the court to accept the


claim of the immunity upon appropriate
suggestion by the principal law officer of the
government, the Solicitor General or other
officer acting under his direction. Hence, in
adherence to the settled principle that courts
may not so exercise their jurisdiction by
seizure and detention of property, as to
embarrass the executive arm of the
government in conducting foreign relations, it
is an accepted doctrine that in such cases the
judicial department of the government follows
the action of the political branch and will not
embarrass the latter by assuming an
antagonistic jurisdiction.
NOTE: The decisions of the supreme court, as
mentioned earlier.

BAR QUESTION, 2005


Q- Adams and Baker are American
citizens residing in the Philippines.
Adams befriended Baker and
became a frequent visitor at his
house. One day Adams arrived with
30 members of Philippine National
Police, armed with search and
warrant authorizing the search of
Bakers house and its premises for
dangerous drugs trafficked to the
United States.

The search purportedly yield


positive result, and Baker
was charged with Violation
of the Dangerous Drugs Act.
Adams was prosecutions
principal witness. However,
for failure to prove his guilt
beyond reasonable doubt,
Baker was acquitted.

Baker then sued Adams for


damages for filing trumped
up charges against him.
Among defenses raised by
Adams is that he has
diplomatic immunity,
conformably with Vienna
Convention on Diplomatic
Relations.

He represented Diplomatic notes from


the U.S. Drug Enforcement agency
tasked with conducting surveillance
operations on suspected drug dealers
in the Philippines believed to be the
sources of prohibited drugs being
shipped to the U.S. It was also stated
that after having ascertained the
target, Adams would then inform the
Philippine narcotic agents to make the
actual arrest.

Q-As counsel of plaintiff


Baker, argue why his
compliant should not be
dismissed on the ground
of defendant Adams
diplomatic immunity.

A-It is submitted that Adams allegation


of being a diplomatic agent is not
supported by more appropriate
evidence usually accorded to diplomatic
agents. He has no valid diplomatic
passport or a diplomatic note to prove
his assignment to diplomatic functions.
His allegation that he was tasked with
conducting surveillance operations is
not a diplomatic function and for which
reason his claim of diplomatic immunity
cannot be sustained.

Q-As counsel of defendant


Adams, argue for the
dismissal of the complaint.

A-As counsel for defendant Adams, I


will base my argument on the
defense that my client truly assigned
to perform specific function as an
agent of the U.S. Drug Enforcement
Agency. As such Adams is acting for
in and behalf of his principal, the US,
is immune from suit. To allow the
suit therefore against Adams
amounts to suing his principal which
is the State itself.

EXPLANATION OF
IMPORTANT
DIPLOMATIC
IMMUNITIES AND
PRIVILEGES

1.Personal dignity and


inviolability: As a rule, he
shall not be liable to any
form of arrest or detention.
Any person who inflicts
physical harm to an
ambassador or minister is
criminal liable under
Republic Act No. 75.

Q-Is this rule absolute?

A-No. It subject to the


following exceptions: (1)
A diplomatic envoy may
be arrested temporarily
if he commits an act of
violence. He should,
however be released and
sent home in due time.

2.Inviolability of official
residence, archives and letters:
The agents of the receiving State
may not enter the premises
occupied by a diplomatic mission
except when it is necessary to
enter the premises (i.e., when
there is imminent danger that
criminal violence will be
perpetrated in the premises)

Q-Suppose peace officers


of the receiving State are
pursuing a criminal or
criminals who are taking
refuge within the premises
of the diplomatic mission,
can they enter premises so
they can apprehend the
said criminal?

A-this is prohibited .
However, the said
criminals should be
surrendered upon
demand by local
authorities except when
the right of asylum exist.

3.Freedom of official
communication: The
diplomatic mission may
send and receive messages,
whether ordinary or in
cipher, by any of the usual
means of communication or
by means of diplomatic
couriers.

4.Exemption from local criminal and


civil jurisdiction: A diplomatic agent
cannot be arrested, prosecuted and
punished for any offense he may
commit, unless he waives his immunity.
Diplomatic privilege does not import
immunity from legal liability but only
exemption from local jurisdiction
(Dikinson vs. Del Solar, 1 k.B. 376). A
complaint for legal separation may be
dismissed on the ground of diplomatic
immunity. (Tsiang vs. Tsiang, 86 N.Y.S
2nd p. 556)

Q-Are his properties


subject to garnishment,
seizure and execution ?

A-No, except in the


following instances:
1.In an action relating to
his professional or
commercial activity in the
receiving State outside his
official functions.

2.In an action relating to


succession in which the diplomatic
agent is involved as executor,
administrator, heirs or legacy as a
private person and not on behalf
of the sending State.
3.In any real action relating to
private and movable property
situated in the territory of the
receiving State, unless the envoy
holds it on behalf of the sending
State for the purposes of the
mission.

Can a diplomatic agent be


compelled to testify before
any judicial or administrative
tribunal in the receiving
State?
No. It can only do so with the
consent of his government.

Can he be sued for


unlawful acts committed
by him in his private
capacity?
Yes. (Shauf vs. Court of
Appeals, 191 SCRA 713)

What is the effect of a writ or process


issued out or prosecuted by any person in
any court of the Philippines, or by any
judge or justice whereby the person of
any ambassador or public minister of any
foreign State, authorized and received as
such by the President, is arrested or in
prison?
Said writ is void, subject to the rule on
reciprocity. (Republic Act No. 75)

Are there instances where these


privileges are not granted?
Yes. It is not granted: (a) to domestic
servants of the ambassador or
minister whose names are not
registered with the DFA; (b) to
citizens or inhabitants of the
Philippines, if the process founded
upon a death contracted before its
employment in the diplomatic service.

What else is an envoys


immunity from local
jurisdiction ?
If children are born to him while
he possesses diplomatic status,
said children are regarded as
born in the territory of his home
State.

5.Right of transit through third


States: A diplomat in transit is
entitled to the same immunity as a
diplomat in situ. (Bergman vs. De
Sieyes, 170 F. 2nd 360)
6. Right to exercise jurisdiction
within his residential and official
domicile:
This is recognized in cases where he
makes an arrest of a member of his
suite.

7.Exemption from taxes and


customs duties: Diplomatic agents
are exempt from all dues and
taxes, whether they are personal
or real, national, regional or
municipal except the following:
1. Indirect taxes normally
incorporated in the price of goods
or services;

2. Dues and taxes on private


immovable property situated
in the territory of the receiving
State, unless he holds it on
behalf of the sending State for
purpose of the mission;
3. Estate, successor or
inheritance taxes levied by the
receiving State;

4. Dues and taxes on private


income having its source in
the receiving State and
capital taxes on investments
in commercial ventures in
the receiving State;
5. Charges levied for
specific services rendered;
and

6. Registration, court or
record fees, mortgage dues
and stamp duty, with
respect to immovable
property. (Vienna
Convention)

PRINCIPLES
CONCERNING
TREATIES

Q-What is a treaty?

A-It is an international
agreement embodied in a single,
formal instrument entered into
by and between signatory States
or international organizations of
States, intended to create rights
and obligations, or establish
relationship, governed by
international law.

Various appellations have been


given to treaties, thus:
a. Pact- this is a special treaty
usually entered into sentimental
reason.
b. Convention-this is an informal
treaty which deals with specific
subjects.
c. Agreements, arrangements,
accord-this is an agreement on
administrative or technical matters.

d. Concordats-agreements
entered into by Pope with
various Heads of States.
Declarations-these are
formal reciprocal agreements
which may deal with: (1) the
rights and privileges of the
nationals of a state;

or (2) principles in
accordance with which
States propose to act; or (3)
grounds for mutual actions
on the part of States
(Wilson and Tucker, op. cit.
p. 209). There are two
special kinds of
declarations, to wit:

1.reversals- declarations
that an error in etiquette or in
the draftsmanship of a treaty
should not be considered as a
precedent;
2. letters reversalsdeclarations that an alteration
in ceremonial practices is
being made only as an
exception to the general rule.

f. Protocol this may refer


either to supplemental
treaty or to an amendment
to a treaty. (Paras, Public
International Law, p. 192)

Q-Is an executive
agreement a treaty?

A-Within the context of


municipal law, it may not be
considered as a treaty
(commissioner of Customs
vs. Eastern Sea Trading,
SCRA 351). It is, however,
equally binding as a treaty
from the standpoint of
international law.

Q-What, If any is the


distinction between a
treaty and executive
agreement?

A-A treaty is concluded by the


President with the advice and consent
of the Senate. No treaty or international
agreement shall be valid and effective
unless concurred in by at least twothirds of all Members of the
Senate(1987 Article VII, Section 21,
1987 Constitution). An executive
agreement is concluded by the
President based on authority granted
by Congress or based on the inherent
authority granted the President by the
Constitution.
NOTE: CONCURRENCE OF THE CONGRESS
TO THE TREATY OR INTERNATIONAL
AGREEMENT IS NEEDED

To guide the reviewee on the


other ancilliary issues about this
topic, and there being no test
case that was raised in the
Supreme Court on whether the
VFA (Visiting Forces
Agreement) is an agreement or a
treaty, I share my thoughts on
the matter as I have originally
written in the textbook in 1999,
thus:

The concurrence of all members of


Congress is needed in order that a
treaty or international agreement
shall be valid and effective. The
reason for this is because a treaty
or international agreement contains
terms and conditions which bind the
whole country and its people and
the consequences and
responsibilities arising therefrom
should not be taken lightly.

The Visiting Forces


Agreement, popularly
known as VFA, has been
approved by the senate.
Is it constitutional?

Article 18, Section 25, provides as


follows:
Section 25. After the expiration in
1991 of the Agreement between
the Republic of the Philippines and
the United States of America
concerning Military Bases, foreign
military bases, troops, or facilities
shall not be allowed in the
Philippines except under a treaty
duly concurred in by

the Senate and, when the


Congress so requires, ratified by a
majority of votes cast by the
people in a national referendum
held for that purpose, and
recognized as a treaty by the other
contracting State.

The above-qouted
provision has four
essential parts, which
are as follows:

1. After the expiration in


1991 of the agreement
between the Republic of the
Philippines and the United
States of America concerning
military bases, troops, or
facilities, shall not be
allowed in the Philippines.

2.Said foreign military


bases, troops, or
facilities may be allowed
in the Philippines if there
is a treaty duly
concurred in by the
Senate.

3.Even if there is a treaty


duly concurred in by the
Senate, the same has still
to be ratified by the
majority of the votes cast
by the people in a
national referendum held
for that purpose, when
the Congress so requires.

4.Even if there is a treaty


approved by the Senate and
ratified by the people, the
same has still to be
recognized as a treaty by
the other contracting State.

The prohibitions in the first


sentence of Section 25, Article
18, supports the view of some
legal luminaries that the said
VFA agreement, even if
approved and even if
considered as a treaty, is still a
violation of the Constitution.

The last two requirements are


restraints to the final approval of the
VFA agreement.
Assuming that it is approved as a treaty
by our Senate, it will need ratification
by a majority of the votes cast by the
people in a national referendum, when
congress so requires. If this happens,
this will again entail a lot of time,
debate and protracted deliberations
especially so that Section 25 uses the
word Congress which obviously refers
to the two houses of Congress.

Assuming further that all


first three requirements
are complied with,
another question arises:
Will it be recognized as a
treaty by the other
contracting State?

This issue will be decided by


the U.S. Senate and not by our
government, nor by the Filipino
people, and for this reason, all
the effort, time, and resources
of our Senate and executive
department, including those
contributed by broadcast and
print media, may, after all, end
up as an exercise in futility.

More than this, it will place our


government in a ridiculous
situation of having it approved,
only eight years after rejecting the
military bases agreement in 1991,
thereby raising speculations and
serious doubt that our government
is doing all it can to have it
approved in exchange for alleged
economic assistance from the U.S.
government.

Unfounded or not, what is


disturbing is that the last say,
after all, is the recognition of
the treaty by the other
contracting State, when it is
our countrys permission and
hospitability to the visiting
forces is precisely being
sought for.

Q-Recently, there was a


suggestion coming from no
less than President Benigno
Simeon C. Aquino III and
Senator Miriam Defensor
Santiago, that the VFA should
be reviewed and re-examined,
what could be the possible
areas of concern that should be
addressed by Congress?

A-There should be a definition


on (1) whether it is a treaty or
executive agreement; (2) the
specific jurisdiction of the
Philippines regarding crimes or
offenses committed in our
jurisdiction by officers/soldiers
or an employee or staff of the
U.S. Government who are in the
Philippines on account of the
visiting forces agreement;

(3) fixed rentals due and payable


to the Philippine Government for
use of any land area or facility
anywhere in the Philippines; (4)
Respect and compliance with our
local laws and with processes,
authority and jurisdiction of our
courts of justice, among several
others that may be decided by
Congress.

Q-In case of conflict


between the said
constitutional provision
and a provision in a treaty
allowing friendly foreign
troops participating in
training exercises, which
prevails?

A-The said constitutional


provision prevails by
express provision of
Article 8, Section 5(2)(a)
of 1987 Constitution.

Q-May the
constitutionality or
validity of a treaty,
international or
executive agreement be
reviewed by the lower
courts?

A-The supreme Court has the


power to review, revise, modify,
or affirm on appeal on certiorari,
as the law or the Rules of Court
may provide, final judgments and
orders of lower courts in all cases
in which the constitutionality or
validity of any treaty,
international or executive
agreement, is in question (Article
VIII, Section 5 [2] [a]).

On the basis of this provision, the


lower courts may, if warranted,
review question or questions
related to the same but the
resolution is subject to review by
the highest tribunal. Considering,
however, that the resolution of the
lower courts will affect our
relationship with a foreign
country, lower courts should
observe a becoming modesty in
examining constitutional question.

For the said reason, the lower


courts should defer to the highest
judgment of the Supreme Court in
the consideration of its validity,
which is better determined after a
thorough deliberation by a
collegiate body and with the
concurrence of the majority of
those who participated in its
discussion. (Drilon vs. Lim, G.R.
No. 112497, August 4, 1994)

Q-May a treaty be
nullified when it conflicts
with our Constitution or
when it is contrary to an
act of Congress?

A-Yes. Remember this


was the ruling of the
Supreme Court in Ichong
vs. Hernadez where it was
then held that the Retail
Trade Nationalization Law
prevails over the Treaty of
Amity with China.

Q-Name some treaties to


which the Philippines is a
party

A-1. RP-US Treaty of General Relation,


1946
2. UN charter, 1945
3. Genocide Convention, 1950
4 . RP-US Mutual Defense Treaty,
1951
5.Treaty of Peace with Japan, 1951
6. SEATO, 1954
7. Convention on the Law of the Sea,
1982
8.RP-US Extradition Treaty, 1994

Q- What are restrictions


on the subject matter of
treaties?

1.Jus Cogens Restrictions


A treaty is void if, at the
time of its conclusion, it
conflicts with a
peremptory norm of
general International Law.
(Vienna Convention,
Article 53)

2.UN Charter Restrictions


In case of conflict between
the obligations under any
other international
agreement, their obligations
under the UN charter shall
prevail. (Principle of Charter
Supremacy, UN Charter;
Article 103)

Q-What is a jus cogens


norm?

A-It is a norm accepted and


recognized by the international
community of States as a whole
as a norm from which no
derogation is permitted and
which can be modified only by a
subsequent norm of general
International Law having the
same character. (Vienna
Convention, Article 53)

THREE GROUPS OF JUS


COGENS NORM

First Group } This group covers


the maxims of International
law which protect the
foundations of law, peace and
humanity in the international
order and which at present are
considered by nations as the
minimum standard for their
mutual relation.

Second Group} this


group covers the rules of
peaceful cooperation in
sphere of International
Law which protects
fundamental common
interest.

Third Group} This covers


the protection of
humanity, especially the,
most essential human
rights

Distinction between Jus cogens and Jus dispositivum

Jus dispositivum
Refers to norms of
ordinary Customary
International law which
are derived from the
consent of the states
and therefore only bind
states which consent
thereto.

Jus Cogens
They are duties which
every state owes to the
international community
as a whole as a norm
from which no
derogation is permitted
and which can be
modified only by a
subsequent norm of
general International
Law having the same
character.

What is the
classification of
treaties ?

A1) From the viewpoint of


the parties thereto
a. bipartite (two
signatories);
b. tripartite (three
signatories);
c. multipartite (more
than three signatories)

(kelsen, Principles of International Law, p.


317)

2.) From the viewpoint of who


should shoulder the obligations
(a) Unilateral (only one
signatory is bound);
(b) bilateral (the two
signatories are responsible);
(c) trilateral (three signatories
are bound);
(d) multilateral (four or more
or all of the signatories are
given certain obligations).

3.) From the Viewpoint


of Presence or Absence
of conditions
(a) Conditional (either
suspensive or
resolutory);
(b) Unconditional.

Q-What are the


essential requisites
for a valid treaty?

A-1) CAPACITY (which means


that the parties which could
either be a sovereign State, or
an international organization,
must have capacity to contract)
2) AUTHORITY (which means
that the agents must be duly
authorized and competent to
act on behalf of the States
represented)

3) CONSENT (which means


that the parties must freely
give their consent).
4) CONFORMITY (which
means that the object and
subject matter must be in
conformity with the
principles of international
law)

5) RATIFICATION
(Which means that the
treaty must be properly
ratified by the various
States concerned in
accordance with their
constitutional processes)

Q-What are the


steps in treatymaking?

A1) Diplomatic negotiation


2) Signing of the treaty
by the representatives

3) Ratification of the treaty by the


constitutional organs of the
respective States. In the
Philippines, the power to ratify a
treaty is vested in the President
subject to the provision of Section
21, Article VII of the 1987
Constitution which provides as
follows: No treaty or international
agreement shall be valid and
effective unless concurred in by at
least two-thirds of all Members of
the Senate.

3.a. A non-signatory State


may be bound by a treaty
through a process known as
accession. (i.e., Upon
permission of the contracting
parties, a third party who did
not participate or who did
not ratify on time, may be
bound by a treaty)

3.b. A State which signs,


accedes or ratify a treaty may
make a reservation to exclude
or modify the legal effect of
certain provisions of a treaty.
The State remains a party to
the treaty despite its
reservation provided that it is
compatible with the object
and purpose of the treaty.

4.) Exchange of the ratification


instruments or deposit with
the government of one of the
contracting parties or with an
organ of an international
organization.
5.) Registration with and
publication by the Secretariat
of the United Nations. (Article
105, No. 2 UN Charter)

Q-When does a
treaty become
effective?

A-It become effective on


the date agreed upon by
the negotiating parties.
If there is none, the treaty
becomes effective as soon
as the consent of all the
parties to be bound by the
treaty established.

REPPRESENTATIVE OF
THE STATE FOR THE
PURPOSE OF
EXPRESSING THE
CONSENT OF THE STATE
TO BE BOUND BY A
TREATY

One who produces


appropriate plien pouvoir
(full powers) is
considered as a
representative of a State
for such purpose.

Q-Can said
representative be
considered as
representing his State if
he has no full powers or
plein pouvoir?

A-The following are considered as


representing their State without
having to produce full powers:
1.Heads of States, Heads of
Government and
Ministries for Foreign
Affairs, for the purpose of
performing all acts
relating to the conclusion
of a treaty;

2.Heads of Diplomatic
missions, for the
purposes of the text of a
treaty between the
accrediting State and the
Sate to which they are
accredited;

3.Representatives accredited
by States to an international
conference or to an
international organization or
one of its organs, for the
purposes of adopting the text
of a treaty in that conference,
organization or organ. (Vienna
Convention, Article 7 [2])

Q-What is alternat?

A-It is a principle whereby a


States own name will be listed
ahead of the other signatory, or
signatories, in its own official
copy of treaty. It is a practice
devised to handle sensitivities
over precedence and to
maintain the principle of
equality between the
contracting parties.

AQUILINO PIMENTEL, JR.


VS. OFFICE OF THE EXEC.
SEC., ET AL. G.R. NO.
158088, JULY 6, 2005

Q- After a treaty is
signed by the States
representative, is it the
legal or moral duty or
obligation of the
President to ratify a
treaty?

A-No. REASON: After the treaty is


signed by the States
representative, the president,
being accountable to the people, is
burdened with the responsibility
and the duty to carefully study the
contents of the treaty and ensure
that they are not inimical to the
interest of the State and its
people. The President therefore
has the discretion even after the
signing by the Philippine
Representative whether or not to
ratify the same.

Q-More specifically,
what then are the
respective roles of the
President and the
Senate with respect to
ratification of a treaty?

A-under the Constitution,


the power to ratify is vested
in the President, subject to
the concurrence of the
Senate. The role of the
Senate, however, is limited
only to giving or
withholding its consent, or
concurrence to the
ratification.

Hence, it is within the authority


of the President to refuse to
submit a treaty to the Senate,
or having secured its consent
for its ratification, refuse to
ratify it. Although the refusal of
a State to ratify a treaty which
has been signed in its behalf is
a serious step that should not
be taken lightly,

such decision is within the


competence of the
President alone, which
cannot be encroached upon
by the court via a writ of
mandamus. (Ibid.)

Q-What, if any,
could be the basis
behind the refusal
to ratify a treaty?

A-There is no legal obligation


to ratify a treaty but it goes
without saying that the refusal
must be based on substantial
grounds and not on superficial
or whimsical reasons.
Otherwise, the other State
would be justified in taking
offense. (Ibid.)

ACCESION TO TREATIES

Q-What is
accession?

A-Accession is the
process whereby a nonsignatory State later
becomes a party to a
treaty there are two (2)
kinds of accession,
namely:

a. A non-signatory
becomes a party in all
provisions in which
case the process is
termed accession
proper

b. A non-signatory
becomes a party in some
of the provisions in
which case the process is
called either adhesion
or adherence.

Q-Can a State which is


not a party or signatory
to a treaty be bound by
the said treaty?

A-yes, in the following


instances: (1) through
the process of accession,
as aforementioned, and
(2) through the most
favored nation clause.

Q-What is the most


favored nation clause?

A-A clause which provides


that a State pledges to
give to the other
signatory whatever
privileges or concessions
the first State may give
the third State, Example:
If there is a such a clause
in our treaty with Japan,

we should also give to Japan


whatever rights we may give to
other countries. If the clause
reciprocal, we will also be given
the same treatment by Japan. If
in all treaties of the Philippines
with the other States, there is
such a clause, the result will be
that all States will be equally
favored. In such a case, none
will be the most favored.

FUNDAMENTAL
PRINCIPLES
CONCERNING TREATIES

1.Pacta sunt servanda (treaties


must be observed in good faith). If
a treaty is contrary to signatorys
national constitution, the
international legal order demands
faithful compliance with the treaty
to avoid international
embarrassment. If necessary, the
State concerned must even modify
its national legislation and
constitution to make it conform to
the treaty.

2.Rebus sic stantibus (a state


may unilaterally withdraw from a
treaty when there is a vital change
circumstances). The reason for
this is because if the change in
circumstances affects a signatory
State, and to comply with the
treaty provisions would seriously
jeopardize its own existence, a
withdrawal is allowed because its
fundamental right to exist is
stronger than its duty to comply
with the treaty.

Q-Is the said principle


absolute?

A-No, but it can be


invoked if the following
requisites are present:
1. There is a vital change
of circumstances;

2.That the said change and


circumstances so affect a
signatory State that for it to
continue to comply with the treaty
provisions would seriously
jeopardize its own existence;
3.The change must have been
unforeseen or unforeseeable at
the time a treaty was perfected;

4.The change must not have


been caused by the party who
is invoking the doctrine;
5.The doctrine must be invoke
within a reasonable time;
6.The duration of the treaty
must be indefinite; and
7.The doctrine cannot operate
retroactive.

REVISION OF
TREATIES

Q-May the General


Assembly make
recommendations on the
revision of treaties?

A-Article 14 of the UN
Charter answers this
question, thus: Article 14.
Subject to the provisions of
Article 12, the General
Assembly may recommend
measures for the peaceful
adjustment of any situation,
regardless of origin,

which it deems likely to impair


the general welfare or friendly
relations among nations,
including situations resulting
from a violation of the
provisions of the present
Charter setting forth the
purposes and Principles of the
United Nations.

INTERPRETATION OF
TREATIES

Q- How are treaties


interpreted?

A-Rules in the interpretation


of contracts are followed in
the interpretation of treaties.
Interpretations made by an
international tribunal ought
to have a conclusive effect.
(Tunis-Morocco Nationality
Decrees Case, P.C.I.J. Pub.
Ser. B. No. 4, pp. 29-30)

TERMINATION OF
TREATIES

Q-What are the causes


for termination of
treaties?

A-Treaties may:
1.Expire-(a) because the period
of its duration has come to an
end;(b) because a resolutory
condition has occurred; (c)
because of its purpose has been
achieved; (d) because of its
objective has become an
impossible thing to accomplish.

Be dissolved- (a) be a party to a


bipartite treaty has become
extinct; (b) because of mutual
withdrawal or cancellation; (c)
because of a unilateral
denunciation (but only if such a
right to unilaterally denounce is
given in the treaty ); (d) because
of unilateral act of termination if
the other party has violated the
terms of the treaty;

(e) because of rebus sic


stantibus; (f) because of a
subsequent change in status
of one of the parties ; (g)
because war has broken out
(however, in some cases, the
treaties may only be
suspended; in still other
instances, the treaties may be
specially applicable only
DURING the war);

(h) because of the conclusion


of a subsequent inconsistent
treaty (Be it noted, However,
that in case of conflict between
the UN Charter and subsequent
treaties between or among
States, the former prevails).
Article 103, UN Charter)

Be annulled or voided-(a)
because one of the signatories
to the treaty was at the time of
perfection incapacitated; (b)
because error or fraud (but not
force, pressure, or undue
influence) may have vitiated the
consent of the contracting
parties; (c) because the object
of the treaty is contrary to the
principles of international law;

(d) because the subject matter


of the contract is outside the
commerce of nations. (Wilson
and Tucker, International Law,
pp. 223-225; Fenwick,
International Law, p. 350;
Kelsen, Principles of
Interbational Law, pp. 354358)

BAR QUESTION, 1992


(Regarding validity of
executive agreement)

Q- The Japanese Government


confirmed that during the Second
World War. Filipinas were among those
conscripted as comfort women
(prostitutes) for Japanese troops in
various part of Asia. The Japanese
Government has accordingly launched
a goodwill campaign and has offered
the Philippine Government substantial
assistance for a program that will
promote through government and
non-government organizationswomens rights,

child welfare, nutrition, and family


health care. An executive agreement is
about to be signed for that purpose.
The agreement includes a clause
whereby the Philippine Government
acknowledges that any liability to the
comfort women or their descendents
are deemed covered by the
reparations agreements signed and
implemented immediately after
Second World War. Juliana Iglesias, a
descendant of the agreement . Advise
her.

A-The agreement by itself may


be valid one if the parties
voluntarily give their consent
to the same. The question,
however, does not state if the
said acknowledgement clause
is with the knowledge and
consent of the comfort women
or their descendants arising
from the terms of the
agreement,

such claim may only be pursued


upon the consent and initiative
of the Philippine government.
The said comfort women or
their descendants have no legal
standing to file and prosecute
their claims directly against
Japan.

THE LAW OF WAR

1.WAR AS A CONTEST OF ARMS


Using this as basis,
Oppenheim defines war as a
contention between two or
more States through their
armed forces, for the purpose
of overpowering each other
and imposing conditions of
peace as the other pleases.

2.WAR AS A STATE OR
CONDITION OF THINGS-war is
not the mere employment of
force but the existence of the
legal condition of things in
which the rights are or may be
prosecuted by force. (John B.
Moore, A Digest of International
Law, Vol. 7, pp. 153)

3.CONCEPT OF WAR IN THE


INTERNATIONAL SENSE-War is a
sustained struggle by armed forces
of a certain intensity between
groups of certain size, consisting of
individuals who are armed, who
wear destructive insignia and who
are subjective to military discipline
under responsible command.
(Salonga, citing Ingrid Detter de
Lupes, The Law of War)

4.From the point of view


of municipal law-A State
may exist even when
there is no war in the
international sense.

Q-Does a State have the


right to wage war?

A-The right to wage war is a


prerogative of national
sovereignty but it can resort
to war only in case of
individual or collective selfdefense, or pursuant to the
decision or recommendation
of the Security Council to
take forcible action against
an aggressor,

provided, however, that the


use of force in self-defense
is permitted only while the
Security Council has not
taken the necessary
measures to maintain or
restore international peace
and security. (Article 51,
UN Charter)

Q-Does the UN Charter


prohibits war?

A-Article 2, paragraph 4, of the


UN Charter provides as follows:
All Members shall refrain in
their international relations
from the threat or use of force
against the territorial integrity
or political independence of any
state, or in any other manner
inconsistent with the purposes
of the United Nations

Q-What is the war


power of Congress?

A-The Congress, by a vote


of two thirds of both houses
in joint session assembled,
voting separately, shall
have the sole power to
declare the existence of a
State of war . (Section
23[1], Article VI)

Q-Is the said power of


congress absolute and
unrestricted?

A-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
adhere to the policy of
peace, equality, justice,
freedom, cooperation, and
amity with all nations,

the restriction means that by the


time the existence of the state of
war is declared by congress, a
was has already been commenced
by an enemy state, or we have
already been provoked, and that
being already the subject or victim
of an attack, we are merely being
compelled to defend our State our
people.(Principles, Comments and
Cases in Constitutional Law I,
Suarez, p. 202)

1987 CONSTITUTIONAL
PROVISIONS

REGARDING WAR
1.Renunciation of war as an
instrument of national policy.
(Article II, Section 2)
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 peace, equality, justice,
freedom, cooperation, and amity
with all nations.

2.Declaration of the
existence of a State of War.
(Article VI, Section 23[1])
The Congress, by a vote of
two-thirds of both Houses in
joint session assemble,
voting separately, shall have
the sole power to declare the
existence of a state of war.

3.Defense of the State. (Article II,


Section 4)
The prime duty of the
Government is to serve and protect
the people. The Government may
call upon the people to defend the
State and, in the fulfillment thereof,
all citizens may be required, under
conditions provided by law, to
render personal, military, or civil
service.

4.Emergency powers. (Article


VI, Section 23[1])
The congress, by a vote of
two thirds of both Houses in
joint session assembled,
voting separately, shall have
the sole power to declare the
existence of a state of war.

5.Martial law powers.(Article VII,


Section 18, par. 1)
The President shall be the
Commander-in-Chief of all armed
forces of the Phlippines and
whenever it becomes necessary,
he may call out such armed forces
to prevent or suppress lawless
violence, invasion or rebellion. In
case of invasion or rebellion, when
the public safety requires it, he
may, for a period not exceeding
sixty days,

suspend the privilege of the writ


of habeas corpus or place in the
Philippines or any part thereof
under martial law. Within fortyeight hours from the
proclamation of martial law or
the suspension of the writ of
habeas corpus, the President
shall submit a report in person or
in writing to the congress. The
Congress, voting jointly,

by a vote of at least a majority


of all its Members in regular or
special session, may revoke
such proclamation or
suspension for a period to be
determined by the Congress, if
the invasion or rebellion shall
persist and public safety
requires it.

6.Proclamation of martial
law is subject to review by the

Supreme Court. (Article VII, Section 18,


par. 3)
The Supreme Court may review, in
an appropriate proceeding filed by any
citizens, the sufficiency of the factual
basis of the proclamation of martial law
or the suspension of the privilege of the
writ or the extension thereof, and must
promulgated its decision thereon within
thirty days from its filing.

7.A State of martial law is subject to


review by the Supreme Court. (Article
VII, Section 18, par. 4)
A State of martial does not suspend
the operation of the Constitution, nor
supplant the functioning of the civil
courts or legislative assembles, nor
authorize the conferment of jurisdiction
on military courts and agencies over
civilians where civil courts are able to
function, nor automatically suspend the
privilege of the writ.

COMMENCEMENT OF
WAR

Q-When is a war
commenced?

A-It is commenced by: (1)


an act of belligerent force
without a previous
declaration of war; or by (2)
a declaration of war, which
must be communicated.
(Stone, Legal Controls of
International Conflict, pp.
310)

EFFECTS OF THE
OUTBREAK OF WAR

Q-What are the effects of


war?

A1.Disruption of diplomatic,
consular and other no-hostile
relations between the two
countries.
2.Commercial intercourse
between citizens of the
belligerents is prohibited, with
some exceptions.

3.Enemy corporations are not allowed


to continue their operations.
4.Enemy persons are usually allowed
to leave. If they decide to remain,
they may be interned and be provide
with food, clothing, shelter, medical
attendance, religious facilities, and be
allowed to communicate with foreign
States. This may, however, be
restricted. (1949 Geneva Convention)

PARTICIPANTS IN THE
WAR

Q-Who are the two (2)


Participants in a war?

A1. The non-combatants


2.The combatants

a. Non-privileged
combatants (i.e., Spies.
When caught, they do not
get the privilege of being
considered as prisoners
of war) (Article 29,
Hague Convention, 1907)

b. Privileged combatants (if


captured, they are not supposed
to become prisoners of war)
Example: Regular armed forces
(army, navy, marine, air); doctors
or chaplains; war correspondents;
levees en masse (spontaneous
uprising of the populace);
guerillas as provided that:

a. They are under a


responsible commander
b. They wear a fixed,
distinctive emblem,
recognizable at a
distance

c.They carry their arms


openly
d.They conduct their
operations according to
customs of war and on land.
(Article 1, Hague
Convention of 1907 and
Articles 4 & 8, Geneva
Convention of 1949)

PRISONERS OF WAR

Q-What are the rights


and privileges of
prisoners of war?

A-1. They must be treated


humanely, shall not be
subjected to physical or
mental torture, shall be
allowed to communicate
with their families, and may
receive food, clothing,
educational and religious
articles.

2.They may not be forced to


reveal military data except
the name, rank, serial
number, army and
regimental number, and
date of birth;
They may not be compelled
to work for military
services.

3.All their personal belongings


except arms, horses, and military
papers, remain their property.
They are entitled in certain cases
to be compensated for work done.
4.They may be interned in a town,
fortress, camp, any other locality
(so long as the place is healthful
and hygienic); they are bound not
to go beyond certain limits.

5.After the conclusion of


peace, their speedy
repatriation must be
accomplished as soon as
practicable. (1949
Geneva Convention on
the Treatment of
Relatives of War)

RULES OF WARFARE

Q-What is the brief


historical background
that led to the adoption
of the rules of war ?

A-1. Down to the middle


ages War was waged
with savage and
unsparing cruelty.
2.Latter part of the
middle ages Christianity
mitigated the
ruthlessness of war.

3.During the 17th century


The devastation and general
suffering caused by the
thirty years war led writers
like Grotius to advocate
moderation in the conduct
of hostilities for reasons of
humanity and religion.

4.Declaration of Paris of 1856The movement for the


codification of rules of warfare
gained impetus.
5.Geneva Convention of 1864There was a convention on the
treatment of the wounded.
6.First Hague Conference of
1899-Efforts to formulate the
laws of war took place.

7.Second Hague Conference


in 1907-Revised the
Declarations in 1899 and
adopted new ones.

II. Between the First and


Second World Wars

1.Protocol of 1925 Concerning the


use of asphyxiating, poisonous and
other gases.
2.Geneva Convention of 1929Concerning the treatment of the sick
and the wounded in the field and
prisoners of war.
3.London Protocol of 1936Concerning the use of the submarines
against merchant vessels.

III. After World War II

1.Red Cross Convention


2.The convention for the
amelioration of the
condition of the wounded
and the sick in the Armed
Forces in the Field which
revised the Geneva
Convention of 1929.

3.The Convention for the


amelioration of the condition of
the wounded, sick and
shipwrecked members of the
Armed Forces at the sea which
revised the Hague Convention No.
X of 1907.
4.The Convention relative to the
treatment of prisoners of war
which revised the Geneva
Condition of 1929 on this subject.
5.The Convention relative to the
protection of civilian persons in
times of war.

After 1950
1.Hague Convention in
1954- Concerning the
protection of cultural
property, such as works
of art, in case of armed
conflict.

2. 1972 Convention
Prohibiting military use
of environmental
modification techniques
(EN-MOD Convention).

3.1977 (Red Cross


Conventions)
Expanding humanitarian
protection to combatants
and non-combatants.

4.1981 (Conventional
Weapons Convention)
Updating the law in
weaponry.

Q-If the UN Charter


prohibits war, why it still
be necessary to devise
rules of warfare?

A-1. The protagonist should not


be left free to do as they
please, unfettered by any rules
regulating their conduct
2.Rules of war have been made
to temper the suffering and
destruction that are inevitable
concomitants of war,
regardless of its legality or
illegality, (Oppenheim, Vol. 2,
p. 218)

3.The laws of war are not applicable to


war alone in its technical sense, but to
all armed conflicts.
4.The UN has stressed the need to
apply basic humanitarian principles in
all armed conflicts, and has called upon
all parties to armed conflicts to observe
international humanitarian rules.(UN
General Assembly Resolution 2444
[XXIII], December 12, 1968)

SOME IMPORTANT RULES


OF WARFARE

Q-State some important


rules of warfare.

A-It is prohibited:
To kill with treachery
To pillage a town or place even when
taken by assault
To employ poison or poisoned arms
To loot
To bomb undefended places (i.e.,
hospital, religious ship, places or worship)
To plant anchored mines
To bomb undefended or open cities
To deliberately bomb civilians
To kill hostages (1949 Geneva Covention)

SANCTIONS
Q-What are the sanctions recognized by international law for not observing the
rules of warfare?
A-CODE: RPPC
R-reprisals
P-unishment of war crimes
P-rotest lodged with neutral powers
C-ompensation
TERMINATION OF WAR
Q-What are the causes for termination of war?
A-CODE:CTU
C-essation of hostilities without conclusion of a formal treaty of peace
T-reaty of Peace (The decisive victory of one of the belligerents leads it to
impose its will upon the other.)
U-nilateral declaration (defeat or unconditional surrender)
Q-What is the meaning of Status Quo Anti Vellum?
A-Each of the belligerents is entitled to the territory and property which it had
possession of at the commencement of the war.
Q-What is the doctrine of postliminium?
A-The territory, individuals and property that have come to the possession or
authority of the original or legitimate sovereign. This also means that when a
territory which has been occupied by the enemy comes again into the power
of the State during the progress of the war through conquest or otherwise, the
legal State of the things existing prior to the hostile occupation is reestablished. (Principles, Cases and Comments in Constitutional Law I, by
Suarez, citing Aruego, international Law, p. 60)

SPECIFIC EFFECTS OF WAR


Q-What are the specific effects of war on (1) Diplomatic
relatives; (2) Enemy persons; (3) Enemy Property; (4) Trading
and intercourse;(5) Contracts; (6) Treaties
A-1. On diplomatic relations
The respective diplomatic envoys are allowed to leave for their
home countries.
The official residence of the envoy, as well as the archives of
the mission, if left behind, is usually placed under the
protection of the another foreign envoy.
2.On enemy persons
a. Enemy persons who are within the territory of a
belligerent at the time of the outbreak of hostilities may be
detained or allowed a reasonable time within which to leave
the country.
b. those who choose to stay or are prevented from leaving,
conditions or restrictions may be imposed on their continued
residence in the country. Usually, they are placed under
special restrictions or intend.

3. On enemy property
a.Goods belonging to enemy persons are considered as enemy property
b. Goods found on board an enemy vessel are presumed to be enemy
property unless the contrary is established by the natural owners.
c. Vessels sailing under enemy flag bears enemy character, regardless of
the nationality or domicile of its owner.
d. Vessels sailing under neutral flag, while ordinarily regarded as neutral
in character, may under certain circumstances be considered to bear enemy
character.
4.On trading and intyercourse
a. The practice of belligerents in modern wars is to forbid by legislation all
intercourse with alien enemies, except those permitted under license. The
main object is to prohibit transactions which would benefit the enemy or
enemy persons.
5.On contracts
a.The rules of municipal law, rather than international law governs.
b. In general, the states treat as void contracts which may give aid to the
enemy or add to his resources.
6. On treaties
a. Treaties concerning political matters (i.e., treaties of alliance and
commercial transactions) are deemed abrogated by the outbreak of war
between the parties thereto.
b. Executed treaties (i. e., fixing of boundaries) are not affected by war.
c. A treaty which regulates the conduct of the parties in times of war is
clearly intended to become operative when war breaks out between them.

A-1. Only military targets are subject to attack.


Civilian objectives are from attack. (Note: This
distinction is clear in theory but not so easy to
observe considering the nature of modern
weapons.)
Q-What are the places and objectives which are not
subject to attack?
A-1. Neutralized areas/zones (i.e., Suez Canal,
Panama Canal)
2.Open towns/cities
3. Cultural property and places of worship
4. Civilian defense personnel, buildings and
assets, indicated by distinctive signs, are immune
from attack under Protocol I of 1997
5. Civilians
a. Those who never took part in hostilities
b. Hors de combat (former combatants but
wounded or have permanently joined the
population)

distress. If they land in enemy territory, they must


be given a chance to surrender and be treated as
prisoners of war)
7. Hospitals, hospital ships and medical counts
8. Food supplies and crops
FORBIDDEN METHODS OF WARFARE
Q-What are the forbidden methods of warfare?
A-1.No quarter method (An order to the effect
that no survivors are to be left open after an attack.
This is inhuman and not allowed as a method of
warfare.)
2.Starvation method-(Starvation of the civilian
population is inhuman.)
3.Reprisals-(Acts of vengeance by a belligerent
directed against groups of civilians or prisoners of
war
4. Perfidy or Treachery (it is treachery for soldiers
who have surrender to take up arms and attack the
enemy.)

Unlawful act or omission causing the death or


serious danger to the health of the prisoners.
BAR QUESTION, 1988
Q-What is Genocide ?
A-Genocide includes any of the following acts
committed with intent to destroy, in whole part, a
national, ethical, racial or religious group, such as:
Killing members of the group;
Causing serious bodily or mental harm to members
of the group;
Deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in
whole or in part;
Imposing measures intended to prevent births
within the group;
Forcibly transferring children of the group to
another group. (1948 Convention on the Prevention
and punishment of the crime of Genocide [Genocide
Convention], which entered into force on January

NOTE:
Genocide is a crime under International law whether
it is committed in time of peace or in time of war
(Article 1, ibid.)
Heads of State and government are not immune
from prosecution for Genocide. (Article 4, ibid.)
Persons charged with genocide shall be tried by a
competent tribunal of the State in the territory of
which the act was committed, or by such
international penal tribunal as may have jurisdiction
respect to parties to the Genocide Convention which
shall have accepted its jurisdiction. (Article 5, ibid.)
Acts punishable under the genocide convention are
the following:
Genocide;
Conspiracy to commit genocide;
Direct and public incitement to commit genocide;
Attempt to commit genocide; and
Complicity in genocide

INHUMAN OR REGARDING TREATMENT OR PUNISHMENT, 1984


CONVENTION
Q-What is torture
A-Any act by which severe pain or suffering, whether physical
or mental, is intentionally inflicted on a person for such
purposes as obtaining from him or a third person has
committed or is suspected of having committed or
intimidating or coercing him or a third person, or for any
reason based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public Official or other person
acting in an official capacity. It does not include pain or
suffering arising only from, inherent in or incidental to lawful
sanctions.(Torture Convention, 1984)
NOTE:
1.Exceptional circumstances whatsoever, whether a state of
war, or retreat of war, internal political instability or any public
emergency, may not be invoked as justification of torture.
(Article 2 [2], Torture Convention)
2.An order from a superior officer or a public authority may
not also be invoke as justification of torture.

BAR QUESTION
Q-What is reprisal?
A-The seizing of property of persons by
way of retaliation. Reprisal when they
are taken by a State may denote any
kind of coercive action not amounting
to war whereby a State attempts to
secure satisfaction from another for
some wrong which the latter has
committed against it. (Briely, 321)

Distinctions, Embargo, Blockade and


Boycott

Embargo
Commerce and trade with the offending
State is prohibited
Blockade
Maritime commerce between an enemy
State and the rest of the world is cut off in
order to prevent the goods from reaching
the enemy or to prevent the enemy from
exporting to the outside world thereby
sustaining its war economy.
Boycott
There is a concerted action made by the
citizens of one State to suspend trade and
business relations with the citizens of the
offending state.

Blockade is lawful if it is made upon the order of


authority of the UN Security Council (Article 42, UN
Charter), Without the said authority, it will fall under
the General prohibition against the use of force as
provided in the UN Charter. (Article 2 [4])
If the boycott is a voluntary act of the citizens,
either acting individually or in concert, it is outside
the scope of international law. It will be a ground of
protest by a foreign government if there is an
element of pressure from a government.
If an embargo upon all the vessels of the
offending State takes place at a time when they are
in the ports of the states seeking redress, the same
does not contemplate a confiscation which is
considered as an act of war, except in case the
redress for injuries suffered should be finally
refused.

AGRESSION
Meaning:
It is the use of armed force by a State against the
sovereignty, territorial integrity or political independence of
another State, or in any other manner inconsistent with the
Charter of the United Nations. (Resolution 3314 [XXIX], UN
General Assembly, December 14, 1974)
Under the said resolution, any of the following acts,
regardless of a declaration of war, shall qualify as act of
aggression:
The invasion or attack by the armed forces of a state of the
territory of another state, or any military occupation, however
temporary, resulting from such invasion or attack, or any
annexation by the use of force of the territory of another state
or part thereof;
Bombardment by the armed forces of a state against the
territory of another state
The blockade of the ports or coasts of a state by the armed
forces of another state;
An attack by the armed forces of a state on the land, sea or air
force, or marine and air fleets of another state;

are within the territory of another state with


the agreement of the receiving state, in
contravention of the conditions provided for
in the agreement or any extension of their
presence in such territory beyond the
termination of the agreement;
The action of the state in allowing its
territory, which it has placed at the disposal
of another state, to be used by that other
state for perpetrating an act of aggression
against the third state;
The sending by or on behalf of a state of
armed bands, groups, irregulars or
mercenaries, which carry out acts of armed
force against another state of such gravity
as to amount to the acts listed above, or its

Armed Forces of Israel, has been


causing bombardment and
blocked in Gaza resulting in death,
starvation and injury to hundreds
and thousands of Palestinian
including innocent civilians. The
Israel government alleges that it is
merely acting in retaliation to
Palestinian attack and to a portion
of its territory. Is Israel guilty of
aggression. Is the allegation of
Israel justified under International

A-The UN charter prohibits not only recourse to war


but also resort to the use of war, and even in the
use of war, the measure to be taken must be
consistent with necessity and proportionality, as
already applied in previous cases that have reached
the International Courts of Justice. Under the
circumstances, it is submitted that Israel committed
not only an aggression but also an unjustified war of
aggression because the repeated bombardments
have caused death, injury, extensive damage even
to innocent civilians, children, hospitals, patients
therein, public and private buildings, which are not
supposed to be targets of attack. Aggression can
never be justified . A war of aggression is a crime
against international peace and it gives rise to
international responsibility. (General Assembly
Resolution 3314 [XXIX], Article 3 in relation to
Article 5)

BAR QUESTION, 1998


Q-At the Nuremberg trial of the Nazi
war criminals at the end of World War
II, the defense argued on behalf of the
German defendants that although a
nation could not wage aggressive war
without transgressing International
Law, it could use war as an instrument
of self-defense, and that the nation
itself must be sole judge of whether its
actions were in self-defense. How
would you meet the argument if you
were a member of the Tribunal trying
the case?

A-In accordance with the agreement and


previous conventions to which Germany was
signatory (Kellog-Briand Pact, Pact of Paris
August 27, 1928, and the 1899 Convention
for the Pacific Settlement of International
Disputes), Germany bound itself under an
obligation not to resort war as an instrument
of national policy or to wage war without
previous and explicit warning. The invasion
of Austria, Denmark, Belgium, Netherlands,
Norway, Luxemburg and the aggression
against Yugoslavia, Greece, Poland and
U.S.S.R. were pre-meditated acts of
aggression as part of the plan of global
denomination.

PEACEFUL AND FORCIBLE


SANCTIONS
Q-What are the peaceful
sanctions in public
international law?

A-Traditionalist list down the following as


the peaceful sanctions in public
international law:
Diplomatic negotiations
Tender and exercise of good offices
Mediation
Enquiry and conciliation
Arbitration
Reference to the Security Council of the
UN
Reference to the International Court of
Justice.(Wilson and Tucker, International
Law, pp. 228-242; Fenwick, International
Law, pp. 405-440)

Q-Explanation of each.
A-(1) Diplomatic negotiations-It
constitutes the process by which
States settle their differences
through an exchange of views
between diplomatic agencies.
Discussions may be oral written,
brief or prolonged.
(Marvomamatis Palestine
Concession Case, P.C.I.J. Pub. Ser.
A/2, p.11)

(2)Tender and exercise of good


offices It exist when third party,
either alone or in collaboration
with others, offers to help in the
settlement of a dispute. When the
offer is accepted, there shall be an
exercise of good offices.
(3)Mediation A third party offers
to help with a solution, usually
based on compromise (as
contradistinguished from good
offices, mediation offers a
solution; good offices merely
brings that parties together).

issues in a dispute.
(5) Conciliation and Arbitration It is
the reference of the dispute to a
commission or international body,
whose decision, however, is NOT
BINDING on the parties; when the
decision is final and conclusive on the
parties, the process is referred to as
arbitration.
(6)Reference to the Security Council of
the UN-When no danger to
international
peace is foreseen, the
Security Council may step in , but only
if ALL THE PARTIES to the dispute
request its intervention (Article 52, UN
Charter). When there is DANGER to
international peace, the Security

Chapter)
(b)On motion of the General Assembly
(Article 11, UN Charter)
(c) On motion of the UN SecretaryGeneral (Article 99, UN Charter)
(d)On motion by a UN Member (Article
35, No. 1, UN Charter)
(e)On motion by a Non-Member of the
UN (Article 35, No. 2, UN Charter)
In case the Security Council
discovers a threats to international
peace, it shall make the proper
recommendations are on the dispute.
(Article 39, UN charter) If the
recommendations are not heeded, the
council may take enforcement action

the UN charter, regional


arrangements or agencies may be
established to maintain
international peace through
regional action and to peacefully
settle local disputes before
referring them to the Security
Council. Its function should be
reported to the council (Article 54,
UN Charter). However, it should be
noted that the existence of these
agencies will not prevent the
Security Council from itself
investigating and settling these

Court of Justice The court shall


remain permanently in session
except during the judicial
vacations, the dates and duration
of which shall be fixed by the
court. (Article 23, ibid.)
Jurisdiction of the case-The
jurisdiction of the court comprises
all the cases which the parties
refer to it and all matters
specifically provided for in the
Charter of the UN or in treaties
and conventions in force. (Article
36, ibid.)

Basis of Courts jurisdiction It is


based on the consent of the
parties. Article 36 of the Statue of
the International Court of Justice
provides: The States parties to
the present Statue may at any
time declare that they recognized
as compulsory ipso facto, and
without special agreement, In
relation to any other state
accepting the same obligation, the
jurisdiction of the court, disputes
concerning:
(f)The interpretation of a treaty;

(h)The existence of any fact which, if


established, could constitute a
breach of an international
obligation
(i)The nature extent of the reparation
to be made for the breach of an
international obligation.
Can it give advisory opinion ?-The Court
may give an advisory opinion on any
legal question at the request of
whatever body that may be authorized
by or in accordance with the UN
Charter to make such a request (Article
65, ibid.) (I.e., General Assembly or the
Security Council) or other organs of the
UN when authorized by the General

BELLIGERENT
OCCUPATIONS AS
DISTINGUISHED FROM
MILITARY OCCUPATIONS

BELLIGERENT OCCUPATION
It is a temporary military occupation
of the
territory of the enemy during the war. International
law recognizes the occupants authority over the
occupied territory and its inhabitants.
Example: Japanese occupation of the Philippines
during the last Pacific War.
MILITARY OCCUAPTION
There is military occupation when the victory takes
over enemy territory after conclusion of the war.
The rights and obligations of the military
occupant are generally premised on the provisions
of an agreement or treaty on the matter.
Example: Occupation of Germany and Japan by the
Allied Powers at the end of World War II.

EFFECT OF BELLIGERENT
OCCUPATION ON THE
SOVEREIGNTY OF THE
LEGITIMATE
GOVERNMENT

the belligerent occupation (U.S.


vs. Rice, 4 U.S. 246, reiterating
the doctrine in U.S. vs. Hayward
[26 Ted Cas. 240]). However, the
Philippine Supreme Court ruled in
laurel vs. Misa, 42 O.G. 1176, that
upon military occupation, the
sovereignty of the legitimate
government is NOT SUSPENED.
What is suspended was merely
the exercise of the acts of
sovereignty. (Principles,
Comments and Cases in
Constitutional Law I, Suarez, p.

Q-When is a territory
deemed under military
occupation ?

A-When the government of the


invaded territory is rendered
incapable of publicly exercising
its authority and the invader is
in the position to substitute
and has substituted its own
authority for that of the
legitimate government of the
occupied territory.

and even in towns of the invaded


place, will all these make the
military occupation?
A-They are not enough. The
belligerent occupant is not
required to have its feet
continuously planted on every
square foot of the territory
occupied, provided he maintains
effective control and military
superiority therein , being able to
send, in case of attack, sufficient
force to assert its authority within
a reasonable time.

Q-What are the rights and duties


of the belligerent occupant ?
A-1. To continue the processes of
orderly government.
2.To enact necessary legislation,
and even penal laws, provided
they are not ex post facto in
character. The imposition of death
penalty is however restricted to
certain offenses. (i.e., espionage
and deliberate homicide). (Articles
67-70, Geneva Convention, 1949)

3.To protect the inhabitants, to


protect them from torture and
brutal treatment. (Articles 27-34;
52-59, Geneva Convention, 1949)
4.To demand taxes and
contributions over and above the
taxes, to finance the needs of
military and local
administrations. (Articles 48, 49,
51, Hague Regulations)

5.To issue legal currency, both for


the preservation of peace and
order, and for military needs.
(Article 43, Hague Regulations)
6.To use enemy property, public or
private. (Villanueva vs. Manila
Motor Co., 2-10394, December 31,
1958)
In short, the rights of a belligerent
occupant over the occupied
territory are merely that of
administration.

Q-During the period of


occupation, can the belligerent
occupant annex the occupied
territory or set it up as our
independent State?
A-No. (Co Kim Chan vs. Valdez
Tan Keh, 75 Phil. 371) REASON:
Because the rights of the
belligerent territory are merely
that of administration .

PHILIPPINE SUPREME COURT


DECISIONS REGARDING THE
RIGHTS OF BELLIGERENT
OCCUPANT
1.ANASTACIO LAUREL VS.
ERIBERTO, MISA, 44 O.G. 1176;
The sovereignty of the legitimate
government of the Philippines was
not suspended. What was
suspended was merely the
exercise of that sovereignty.
2.HAW PIA VS. CHINA BANKING
CORPORATION, L-554, APRIL 9,
1948:

occupant, had the right to


liquidate, sequester or freeze the
assets of enemy banks.
(b) Payment by Haw Pia to the
Bank of Taiwan extinguished the
mortgage indebtedness because
under the law then prevailing, the
Bank of Taiwan was clearly
authorized to received payment.
(c) The Japanese military notes
were legal tender because under
international law, the invading
power has the right to issue
currency for circulation in the

This is about a property leased by


a Filipino to another Filipino to
another Filipino. On account of
military need, the Japanese Army
occupied the said property. The
issue is whether the lessee should
pay rent to the lessor during the
time the said property was
occupied by the Japanese Army.
HELD: No. REASON: In
International Law, the belligerent
occupant has the right to billet or
quarter its troops in private lands
and buildings during the duration

suspended?
A-1. When there is a suspension of
arms (i.e., to bury the dead or to
remove the wounded)
2.When there is armistice
(suspension of military operations
in all regimes)
3.When there is a cease-fire
(stoppage of military firing and
advances)
4.When there is a capitulation (an
agreement whereby a body of
troops or fitness or a town is
surrender (no conditions

THE END OF WAR


Q-In how many ways can war be
ended?
A-1. Cessation of hostilities
without any formal treaty
2.By a formal treaty of peace
3.by the complete submission and
subjugation of one of the
belligerents
4.By unilateral declaration or
proclamation

STATELESS PERSONS
BAR QUESTIONS, 1995
Q-Who are stateless person?
A-They are persons who are not
considered as nationals by any
State under the operation of its
law.(1954 Convention, Article 1,
relating to the status of
stateless persons which entered
into force on June 6, 1960)

Q-What are the


consequences of
statelessness?

A-A state person is adversely


affected as it affects his right to
exercise rights and privileges
usually enjoyed by citizens of a
State such as but not limited to
employment right to work, right
to own and acquire property, right
to education, freedom of mobility,
right of access to health care and
other privileges enjoyed by
citizens.

A-No, he shall be issued identity papers


when he does not posses a valid travel
document; he shall be accorded the
same treatment which shall be
favorable as possible and, in any event,
not less favorable than that accorded
to aliens generally in the same
circumstances with respect to rights to
movable and immovable property, right
of association, wage-earning
employment, liberal professions,
housing, freedom of movement; he
shall be accorded the same treatment
granted to the national of the country
of his habitual residence with respect
to rights to artistic rights and industrial

A-(a) A contracting State shall


grant its nationality to a person
born on its territory who would
otherwise be stateless;
(Convention on the Reduction of
Statelessness, Article 1)
(b)A contracting State shall grant
its nationality to a person not
born in the territory of a
Contracting State, who would
otherwise be stateless, if the
nationality of one of his parents at
the time of the persons birth was
that of that State. (Convention on

resident of Switzerland, was the


challenger to the world chess title
held by Anatoly Karpov. After 32
grueling games were played in
Baguio City, Karpov finally
retained his title. Korchnoi
protested non-payment of his
prize money and alleged unfair
treatment he received from the
tournament organizers in the
Philippines, particularly in the 32nd
crucial game which he attributes
as the main cause of his defeat.
May he press for his right to the

korchnoi may not press


for his right to the price
money. REASONS: (1) He
is a stateless person; (2)
The right of the Swiss
government, if it
decides to represent
Korchnoi in the
international level, is
based on nationality and

LAW GOVERNING CONTROVERSIES ON


THE LAW OF THE SEA THE TREATIES
PROMULGATED ,
1.Convention on the Territorial Sea
and Contiguous Zone
2.Convention on the high Seas
3.Convention on Fishing and
Conversation of the Living Resources
of the High Seas
4.Convention on the Continental Shelf
5. UNCLOS

TOPICS IN CONNECTION
WITH LAW OF THE SEA
1.Brief background on
the adoption of UNCLOS
2.Nationality of Vessels
3.Baseline Determination
4. Internal Waters and
ports

5.Territorial Seas and


Contiguous Zone
6.Continental Shelf
7.Exploitation of the
Mineral resources of the
Deep Seabed
8. The High Seas

EXPALNATION OF EACH
ONE
BACKGROUND OF THE
ADOPTION OF UNCLOS

as UNCLOS, was adopted by the UN


Conference on the Law of the Sea on
April 30, 1992
Open for signature: On December 10,
1982 at Montego Bay, Jamaica
Entered into force: On November 16,
1994, pursuant to its Article 308 (1)
When it received its 60th ratification on
that date.
The Philippines is a party to the
Convention, having signed it on
December 10, 1982, and ratified on May
8, 1984.
73 States have become parties to the
Convention as of February 23, 1995.
China and Japan signed it.

Assembly adopted the Agreement


relating to the implementation of Part
XI of the Convention in its resolution
48/263, with 120 States, including the
Philippines, voting in favor.
No negative vote, with 7 abstentions.
116 States, including the Philippines,
have agreed to apply provisionally the
agreement starting Nov. 14, 1994, the
date of the Conventions entry into
force.
THE PHILIPPINE DECLARATION ON THE
SIGNING OF THE CONVENTION ON THE
LAW OF THE SEA
Montego Bay, Jamaica
Declaration of the Republic of the

The government of the Republic of the


Philippines
10 December 1982
The government of the Republic of the
Philippines hereby manifest that in signing the
1982 United Nations Convention on the Law of
the Sea, it does so with the understandings
embodied in this declaration, made under the
provisions of Article 310 of the Convention, to
wit:
The signing of the Convention by the
Government of the Republic of the Philippines
shall not in any manner impair or prejudice the
sovereign rights of the Republic of the
Philippines under and arising from the
Constitution of the Philippines

United States of America, under and


arising out of the Treaty of Paris
between Spain and the United States of
America of December 10, 1898, and the
Treaty of Washington between the
United States of America and Britain of
January 2, 1930;
Such signing shall not diminish or in
any manner affect the rights and
obligations of the contracting parties
under the Mutual Defense Treaty
between the Philippines and the United
States of America of August 30, 1951,
and its related interpretative
instrument; nor those under any other
pertinent bilateral or multilateral treaty

over which sovereign authority, such as the


Kalayaan Islands, and the waters appurtenant
thereto;
The Convention shall not be construed as
amending in any manner or pertinent laws
and presidential decrees or Proclamations of
the Republic of the Philippines; The
Government of the Republic of the Philippines
maintains and reserves the right and
authority to make any amendments to such
laws, decrees or proclamations pursuant to
the provisions of the Philippine Constitution;
The provisions of the Convention on
archipelagic passage through sea lanes do not
nullify or impair the sovereignty of the
Philippines as an archipelagic state over the
sea lands and do not deprive it of authority to
enact legislation to protect its sovereignty,

The concept of archipelagic waters is similar


to the concept of internal waters under the
Constitution of the Philippines, and removes
straits connecting these waters with the
economic zone or high sea from the rights of
foreign vessels to transit passage for
international navigation;
The Agreement of the Republic of the
Philippines to the submission for peaceful
resolution, under any of the procedures
provided in the Convention, of disputes under
Article 298 shall not be considered as a
derogation of Philippine sovereignty.
For and on behalf of
THE REPUBLIC OF THE PHILIPPINES

(Sgd.) ARTURO M. TOLENTINO


Minister of State for Foreign Affairs
Chairman of Delegation

Be it noted that based on the aforementioned


Philippine Declaration, the Government of the
Republic of the Philippines, through Former
Senator and Vice-President Arturo Tolentino,
signed and ratified the UNCLOS based on the
understanding that:
xxx 1. Shall not in any manner impair or
prejudice the sovereign rights of the Republic
of the Philippines under and arising from the
Constitution of the Philippines;
2.xxx shall not in any manner affect the
sovereign rights of the Republic of the
Philippines as successor of the United States
of America;
3.xxx shall not diminish or in any manner
affect the rights and obligations of the
contracting parties under the mutual Defense
Treaty between the Philippines and the United
States of America;

Republic of the Philippines over any


territory over which sovereign
authority, such as the Kalayaan Islands,
and the waters appurtenant thereto;
5.xxx shall not be construed as
amending in any manner or pertinent
laws and Presidential decrees or
Proclamations of the Republic of the
Philippines;
6. The provisions of the Convention
on archipelagic passage through sea
lanes do not nullify or impair the
sovereignty of the Philippines as an
archipelagic state over the sea lands
and do not deprive it of authority to
enact legislation to protect its

internal waters under the


Constitution of the Philippines,
and removes straits connecting
these waters with the economic
zone or high sea from the rights of
foreign vessels to transit passage
for international navigation;
8. The Agreement of the
Republic of the Philippines to
submission for peaceful
resolution, under any of the
procedures provided in the
Convention, of disputes under
Article 298 shall not be considered

(Underlining Supplied)
What are the implications of
the foregoing reservation?
This means that the
sovereignty and jurisdiction
shall be exercised over the
territorial sea, as provided in
Article 1 of the 1987
Constitution, thus:
The national territory
comprises the Philippine
Archipelago, with all the
islands and waters embraced

therein, and all other territories


over which the Philippines has
sovereignty or jurisdiction,
consisting of its terrestrial, fluvial,
and aerial domains, including its
territorial sea, the seabed, the
subsoil, the insular shelves, and
other submarine areas. The waters
around, between and connecting
the islands of the archipelago,
regardless of their breadth and
dimensions, form part of the
internal waters of the Philippines.

by the national territory clause, as


clearly provided in the 1987
Constitution and even in our previous
Constitution
Despite the signing of the UNCLOS,
Republic Act No. 3046 is sustained.
Hence, the Philippines still adheres to
the national territory clause and this is
found in the 1987 Constitution .
Any effort in the diplomatic level to
attain harmony, or to avoid conflict
with the UNCLOS, will not be fully
realized unless and until a
corresponding amendment in our
present Constitution is made.
The wording of the present

islands of the archipelago,


regardless of their breath and
dimension, form part of the
internal waters of the
Philippines.
On this basis, it means that
the sovereignty and
jurisdiction should be exercise
over the territorial sea, the
same principle and application
of sovereignty that was
observe when the 1973 and

Under the UNCLOS, the


following have become evident:
The internal waters of the
Philippines are strictly limited
to waters in lakes, bays, gulf,
mouth of rivers, and in
permanent harbor works, which
results to a drastic contraction
of our territorial sovereignty.

governing the territorial sea, deprives


the boundary line of the Treaty of Paris
(international treaty limits) of any legal
function. Assuming these fines or limits
to be the boundaries of the Philippines,
effect of the UNCLOS is to recognize
the entire territorial regime of the
Philippines, resulting in the
debasement of its territorial
sovereignty.
The rights and duties of the Philippines
in regard to the international
community are those which pertain to
the maritime zones, leaving the Treaty
of Paris boundary lines without any
legal purpose in terms of rights and

is only up to that limit that the


Philippines enjoys sovereignty.
Likewise, under the UNCLOS the
internal waters of the Philippines are
strictly limited to water in lakes, bays,
gulfs, mouth of rivers and in permanent
harbor works. This means a drastic
contraction of its territorial
sovereignty.
Remember what I have discussed
earlier in relation to the position of our
government in relation to the
archipelagic theory proposed by the
Philippines in the U.N. Conference on
the law of the Sea, particularly our
position with respect to the more than

Q-(A) What is the


archipelagic theory as
proposed by the
Philippines in the U.N.
Conference on The Law
of the Sea and give its
justification, legal or
practical, from the
standpoint of the
Philippine position?

A-(a) Under the archipelago


theory the waters around,
between, and connecting the
islands of the archipelago,
regardless of their breadth and
dimensions, form part of the
internal waters of the
Philippines and this is provided
in Article I, Section I of the 1973
Constitution, now Article I of
the 1987 constitution.

In this connection, our position is


that the more than 7,000 islands
comprising our terrestrial domain
should be considered as one
integrated unit instead of being
fragmented or separate components
to be provided with its own territorial
sea, as this would make the
intervening waters open and will be
available to uses of other States to
the prejudice of our country.

In effect, the conversion


of our internal waters
under the Constitution
into archipelagic waters
under the UNCLOS
gravely derogates the
sovereignty of the
Philippine State.

2.NATIONALITY OF VESSELS
Legal significance of the
nationality of a vessel:
The nationality, registration or
documentation of vessels
determines a relationship
between the vessel and the State
that authorizes it to fly its flag. A
ship has the nationality of the
state whose flag it is entitled to
fly. (Article 92, UNCLOS)

A SHIP SHALL SAIL


UNDER THE FLAG OF ONE
STATE ONLY
Exception to this rule:
Except in cases provided
for international treaties
or in the LOS
Convention.

CONSEQUENCE IF A SHIP SAILS


UNDER THE FLAGS OF TWO OR
MORE STATES USING THEM
ACCORDING TO CONVENIENCE
Said ship may not claim any of the
nationalities in question with
respect to any other State, and my
be assimilated to a ship without
nationality. (1958 Convention on the
high seas, Article 6; UNCLOS, Article
92)

LIMITATIONS ON THE RIGHT OF A


STATE TO CONFER NATIONALITY
UPON A SHIP
One Flag Limitation-A Sate may not
confer its nationality upon a ship
that is already flying the flag of
another State. Article 92 of the LOS
Convention states that a ship may
not change its flag during a voyage
or while in a port of call, save in the
case of a real transfer of ownership
or change of registry.

Genuine Link
requirement Article 91
of the LOS Convention
requires that there must
exist a genuine link
between the ship and
the state before the
latter may confer its
nationality upon the
ship.

A-The flag State is the State


that grants nationality upon a
ship and authorizes it to fly its
flag. If there is no genuine link
between the ship and the flag
The genuine link between a
ship and the state granting
nationality upon it may be any
or more than one of the
following:
a)The ship owned by its
nationals;
b) the officers of t he ship are

3.BASELINE
DETERMINATION
DEFINATION OF
BASELINE
It is the law-water
mark along the coast
from which the belt or
territorial sea measured.
(UK vs. Norway, ICJ,
December 18, 1951)

RULES REGARDING DELINEATION OF


THE BASELINE
In localities where the coastline is
deeply intended, the method of
straight baseline joining appropriate
points may be employed. (Id., Article
7)
If a river flows directly into the sea,
the baseline shall be a straight line
across the mount of the river
between points on the low-water of
its banks. (Id., Article 9)

natural entrance points of a


bay does not exceed 24
nautical miles, a straight
baseline may be drawn
between them, and the waters
enclosed thereby shall be
considered as internal waters;
otherwise straight baseline of
24 nautical miles shall be
drawn within the bay in such a
manner as to enclose the
maximum area of water that is
possible with a line of that

its natural entrance, regardless of


distance.\
Ports The outermost permanent
harbor works which form an integral
part of the harbor system are
regarded as forming part of the
coast; however, off-shore
installations and artificial islands
shall not be considered as
permanent harbor works. (Id., Article
12)
Low-tide elevation The low-water
line on t het elevation may be
caused as t he baseline for
measuring the breadth of t he

straight archipelagic baseline joining


the outermost points of t he
outermost islands and drying reefs
of the archipelago. (Id., Article 47)
BAR QUESTION, 2004
Q-Distinguish territorial sea and the
internal waters of the Philippines.
A-Internal waters of the Philippines:
this refers to the second sentence in
Art. 1 of the 1987 Constitution,
thus : the waters around, between ,
and connecting the islands of the
archipelago regardless of their
breadth and dimension.
Territorial sea (Already discussed)

4.INTERNAL WATERS AND PORTS


DISTINCTION, INTERNAL WATERS AND
ARCHIPELAGIC WATERS
Internal waters: (They are completely
within the territory )(a)rivers, (b)Bays
and gulfs (c) Straits (d) Canals
Archipelagic waters 2nd sentence of
Section 1, Article I, 1987 Constitution)The waters around, between and
connecting the islands of the
archipelago, regardless of their breadth
and dimensions, form part of the
internal waters of the Philippines.

BAR QUEST ION, 1951


Q-What are the principal
theories on the jurisdiction of
authorities of a coastal state
over crimes committed on
board foreign merchant ships
which enter or dock in its
ports? Which of the two
theories is followed in this
jurisdiction?

A-The principle theories are;(a) The French


Rule (Under this rule, crimes committed
abroad a foreign merchant vessel should
not be prosecuted in the courts of the
country within whose territorial jurisdiction
they were committed, unless their
commission affects the peace and security
of the territory; ) (b) The English Rule
(Under this rule, crimes perpetrated under
such circumstances are in general triable
in the courts of the country within whose
territory they were committed.) We follow
the English Rule. (People vs. Wong Cheng.
G.R. No. L-18924, October 19, 1992)

BAR QUESTION, 1979


Q-A crime was committed in a
private vessel registered in
Japan by a Filipino against an
Englishman while the vessel
is anchored in a port of a
State A. Where can he be
tried? If both are members of
the crew, where will the trial
be?

A-(Already answered) (If the crime


committed affects the peace and
dignity of State A or the
tranquility of its port, the trial
will be in State A. If the crime
involves ,matters that are internal
to the vessel or its crew. The trial
will be in Japan.)
5.TERRITORIAL SEA AND
CONTIGUOUS ZONE
Q-What is the breath of the
territorial sea ? (Already discussed)

BAR QUESTION , 2004


Q-What is contiguous zone?
A-It is the zone extending up to 12
nautical miles from the territorial
sea. Although it is no technically a
part of the territory of the State, the
coastal State may exercise limited
jurisdiction over the contiguous zone
as a preventive measure to ensure
that customs laws , immigration and
sanitary laws are properly and
effectively enforced.

BAR QUESTION, 1991


Q-What is innocent Passage ?
A-It is right of right of foreign
vessels to pass through territorial
waters especially those connecting
two open seas, Provided:
1.That the passage is innocent
which means that there is no ulterior
motive for the passage, and all the
regulations of the State concerned
must have been complied with;

2.That there is only a


passage which means
that there is merely a
passing through, with no
loading or unloading of
any person or goods.

grounds in the Pacific Ocean, a


vessel registered in country TW
entered t he Balingtang Channel
north of Babuyan Island and with
special hooks and nets dragged up
red corals found near Batanes. By
international convention certain
corals are protected species. Just
before the vessel and seized its
cargo including tuna. The master of
the vessel and the owner of the
cargo protested, claiming t he rights
of transit passage and innocent
passage , and sought recovery of the
cargo an d the release of the ship. Is

A-No. REASONS: The two (2)


conditions above-mentioned were
violated. The passage was not
innocent as there was an ulterior
motive for the passage and the
regulations of our country have not
been complied with. There was no
merely a passing through; and
there was no loading or unloading any
person or goods. In fact, t he vessel,
with special hooks and nets, dragged
up red corals found near Batanes.

PRIOR NOTICE OR AUTHORIZATION IS


NOT REQUIRED FOR INNOCENT PASSAGE
OF A FOREIGN WARSHIP IN THE
TERRITORIAL SEA OF COASTAL STATE
Requirement: The LOS Convention
requires ships, including warship to
comply with the laws and regulation of
the coastal State relating to innocent
passage, If this is violated, the ship may
be required to immediately leave the
territorial sea. Submarines must
navigate on the surface and show their
flag.(Articles 30, 14, 20, UNCLOS)

PASSAGE AND INNOCENT


PASSAGE
Transit passage
1.Applies through straits
2.Covers navigation and over
flight by aircrafts.
3.It may not be unilaterally
suspended. (Article 45[2]UNCLOS)
Innocent passage
1.Applies through territorial
seas.
2.Covers navigation only.

allowed foreign ships innocent passage


through Mantranas Strait, a strait within
Epsilons territorial sea which has been used
by foreign ships for international
navigation.
Such passage enabled the said ships to
traverse the strait between one part of the
high seas to another. On June 7, 1997, a
warship of State Beta passed through the
above-named strait. Instead of passing
continuously and expeditiously, the ship
delayed its passage to render assistance to
a ship of state Gamma which was distressed
with no one nearby to assist. When
confronted by Epsilon about the delay, Beta
explained that the delay was due to force
majeure in conformity with the provision of
Article 18(2) of the UN Convention on the

passage of warships through


Mantranas Strait without giving any
reason thereof. Subsequently,
another warship of Beta passed
through the said strait, and was
fired upon by Epsilons coastal
battery. Beta protested the
aforesaid act of Epsilon drawing
attention to the existing Customary
International Law that the regime of
innocent passage (even a transit
passage ) is non-suspendable.
Epsilon countered that suitable
alternative route. Resolve the
above-mentioned controversy.

applies in straits used for


international navigation.
Besides, the right of innocent
passage to pass through the
straits may not be suspended.
(Article 45, UNCLOS)
The delayed passage of a
warship of State Beta was
justified on account of force
majeure and to be able to
render assistance to a ship of
State Gamma, a ship under
stress, with no one nearby to

During peace time, State Epsilon


has allowed innocent passage to
foreign ships passing though
Mantranas Strait, which is within
the territorial sea of Epsilon. In
other words, it has been used by
foreign ships for international
navigation. For these reason, the
state of Epsilon has no right to
suspend t he right of innocent
passage through Mantranas Strait.

DEFINATION OF CONTINENTAL
SHELF:
It is the seabed and subsoil of
the submarine areas extending
beyond the territorial sea of
the coastal state throughout
the natural prolongation of its
land territory up to (1) the
outer edge of the continental
margin, or to (2) a distance of
200 nautical miles from the
baselines of the territorial sea,
whichever is the farthest.

NOTE:
1.The continental shelf may
extend farther than the
continental margin when the
continental margin does not
extend beyond the 200 nautical
miles from baselines. In such case,
the continental shelf goes farther
than the continental margin may
extends up to the 200 nautical
miles limit. (Ibid., Article 76[1])

margin may extend beyond the 200


nautical mile limit. In such case, the
coastal state shall establish the
outer edge of continental margin.
How will outer limit of the
continental shelf be determined or
established? The outer limit of the
continental shelf shall not exceed
350 nautical miles from the
baselines of the territorial sea, or
100 nautical miles from the 2500
meter isobath (or the point where
the waters are 2500 meters deep),
as required in Article 76 (5) of the
UNCLOS.

It has sovereign rights for the


purpose of exploring it and
exploiting its natural resources.
These rights are now recognized as
customary international
The said natural resources consist
of the mineral and other non-living
resources of t he seabed and subsoil
together with living organisms
belonging to the sedentary species,
that is to say, organisms which, at
harvestable state, either are
immobile on or under the seabed or
are unable to move except in
constant physical contact with the

Q-What is t he legal nature of these


rights?
A-The said rights are exclusive in the
sense that if the coastal state does not
explore the continental shelf or exploit its
natural resources, no one may undertake
these activities without the express
consent of the coastal state. Moreover,
rights of the coastal state over the
continental shelf do not depend on
occupation, effective or notional, or on any
express proclamation. It is in the nature of
the rights to explore and exploit natural
resources, and for no other purposes.

North Sea Continental Shelf


The rights of the coastal state in
respect of t he area of continental
shelf that constitutes a natural
prolongation of its land territory into
and under the sea exist ipso facto
and ab initio, by virtue of it
sovereignty over the land, and as an
extension of it in an exercise of
sovereign rights for the purpose of
exploring the seabed and exploiting
its natural resources. In short ,
continental shelf rights are legally
both an emanation from and an
automatic adjunct of the territorial

Q-Do the rights of the coastal state over


the continental shelf change or in any way
affect the legal status of the superjacent
waters?
A-No, they do not affect the legal status of
the superjacent waters or of the air space
above those waters, under Article 78(1),
UNCLOS. Hence, the coastal state in the
exercise of its rights is under duly to
respect the rights and freedoms of other
states, such as the freedom of navigation
and of over flight and the right to lay
submarine cables and pipelines. (78.2,
79.1 and 79.2, UNCLOS)

7.EXPLOITATION OF THE
MINERAL RESOURCES OF
THE DEEP SEA BED
STATUS OF THE LEGAL
REGIME GOVERNING THE
EXPLOITATION OF
MINERAL RESOURCES OF
THE DEEP SEABED

mankind view;(2) Res Nulluis


View;(3) Freedom of the high
seas view. The first one,
common heritage of mankind
view, was adopted by the UN
General Assembly in resolution
No. 2749 (XXV), December 17,
1970 in connection with
Declaration of Principles
Governing the Seabed and the
Ocean Floor, and the Subsoil
Thereof Beyond the Limits of
National Jurisdiction. The

No state shall claim or exercise


sovereignty of sovereign right s
over any part of the Area or its
resources, nor shall any Sate or
natural or juridical person
appropriate any part thereof.
No such claim or exercise of
sovereignty or sovereign rights
nor such appropriation shall be
recognized.

mankind as a whole on whose


behalf the Authority shall act.
These resources are not
subject to alienation.
No state or natural or judicial
person shall claim, acquire or
exercise right with respect to
the minerals recovered from
the Area except in accordance
with the Convention.
Otherwise, no such claim,
acquisition or exercise of such
rights shall be recognized.

8.HIGH SEAS
DEFINITION OF HIGH SEAS:
There are the waters which are not
included in the territorial sea or in
the internal waters of any state, in
the archipelagic waters and exclusive
economic zone of the State. Hence,
they are beyond the jurisdiction and
sovereign rights of the States.
Remember my previous regarding
the Freedom of the Seas, thus:

of The Freedom of the


Seas?
A-It means that no part
of the sea as such can be
subjected to the
sovereignty of any State.
It cannot therefore be
incorporated into the
territory of any State
through occupation.

Q-What then is the meaning of the


statement that the open seas is not
property of any Sate?
A-This means that it is the common
highway of all, appropriated to the use of
all; and no one can arrogate to himself a
superior or exclusive prerogative there.
Every ship sails there with an
unquestionable right or pursuing her own
lawful business without interruption. And
whatever may be that business, she is
bound to pursue it in such a manner as not
to violate others under the Latin Maxim, SIC
UTERE TUO, NON ALIENUM LAEDAS. (Paras,
quoting Justice Story)

In other words, they are open


and available to the use of all
States for variety of purposes
(i.e., navigation, flight over
them, laying submarine cables
and papers, fishing, research,
mining, or in pursuing any lawful
business). Under Article 88 of the
UN Conference on the Law of the
Sea, the high seas shall be
reserved for peaceful purposes.

A-No. This may regulated by a


treaty.
Q-What is the freedom of
navigation?
A-It refers to the right to sail ships
on the high seas, subject only to
international law and the laws of the
flag state.
MAIN CONSTITUENTS OF THE
FREEDOM OF THE HIGH SEAS
1.Freedom of navigation
2.Freedom of over flight
3.Freedom of fishing
4.Freedom to lay submarine cables
and pipelines

DUTIES OF THE STATES RELATIVE TO


THE HIGH SEAS
1.Every State shall require the
master of a ship flying its flag, in so
far as he can do so without serious
danger to the ship, the crew or
passengers:
(a)to render assistance to any
person found at sea in danger of
being lost;
(b)to proceed with all possible speed
to the rescue of persons in distress;
if informed of their need in
assistance, in so far as such action
may reasonably be expected of him;

(c) after a collision, to render


assistance to the other ship,
its crew and its passengers
and, where possible, to inform
the other ship of the name of
his own ship, its port of
registry and the nearest port
at which it will call. (Article
98, UNCLOS)

2.Every State shall take effective


measures to prevent and punish
the transport of slaves in ships
authorized to fly its flag and to
prevent the unlawful use of its
flag for that purpose. Any slave
taking refuge on board any ship,
whatever its flag, shall ipso facto
be free. (Article 99, UNCLOS)
Exceptions to the flag states
jurisdiction in the high seas:

or any other person in the


service of the ship, arising from
collision or any other incident
of navigation concerning a ship
on the high seas, the state of
which that person is a national
has jurisdiction, concurrently
with the flag state.
2.Every state may seize a
pirate ship (or aircraft), or a
ship taken by the pirates ,
arrest the persons on board
and seize the property on

broadcasting installation, the state


of which the offender is a national
any state where authorized the
broadcast transmission can be
received, or any state where
authorized radio communication is
suffering interference has
jurisdiction to arrest a person or
ship engaged in unauthorized
broadcasting from the high seas,
seize the broadcasting apparatus,
and prosecute the offender.
4. On the exercise of t he right of hot
pursuit, a warship or military aircraft
of a state may stop and arrest a

5.In case of pollution


incident from a marine
casualty, a coastal state
whose coastline is
threatened with major
harmful consequences
may take and enforce
measures beyond the
territorial sea, including
on the high seas.

Q-Is the freedom of


fishing in the high seas
limited to the coastal
states?
A-No. The right to fish on
the high seas pertains to
all states, coastal or
land-locked.

Q-Is there a duty on the part of the


States to conserve the living
resources of the high seas?
A-Yes. Individually, every state has
the duty to take measures for the
conservation of the living resources
of the high seas. States shall
cooperate with each other in the
conservation and management of
such resources, including the
determination of the allowable catch.

PENAL AND ADMINISTRATIVE


JURISDICTION INVOLVING THE PENAL
OR DISCIPLINARY RESPONSIBILITY OF
THE MASTER OR OF ANY OTHER
PERSON IN THE SERVICE OF THE SHIP
Rules:
1.The penal and administrative
jurisdiction is now limited to: (a) the
flag state of the vessel alleged to be
responsible; and (b) the state of
nationality of the accused

2.The arrest or detention


of the ship shall not be
ordered by any
authorities other than
those of the flag Sates.
(Article 97, UNCLOS)

BAR QUESTION, 1986


Q-In the Pacific Ocean, while on its
way to Northern Samar to load
copra, a Norwegian freighter collides
with a Philippine luxury liner
resulting in the death of ten Filipino
passengers. Upon the Norwegian
vessels arrival in Catarman,
Northern Samar, the Norwegian
captain and the helmsman assisting
him are arrested and charged with
multiple homicide through reckless
imprudence.

Apart from filing a protest with the


Department of Foreign Affairs, the
Norwegian Embassy through a local
counsel, helps the accused in filing a
motion to quash. It is pointed out
that the incident happened on the
high seas; the accused were on
board a Norwegian vessel; and only
a Norwegian court can try the case
even if the deaths occurred on a
Philippine ship. Resolve the motion.

A-The above-mentioned rules, article 97,


UNCLOS, are clear, thus: the penal or
disciplinary responsibility of the master
or of any other person in the service of
the ship, is now limited to (a)the flag
state of the vessel alleged to be
responsible; (b) the state of nationality
of the accused. Besides, it is likewise
provided that arrest or detention of the
ship shall not be ordered by any
authorities other than those of the flag
state. There is therefore a valid basis and
justification for filing t he said motion to
quash.

TOPICS:
1.The airspace
2.The Outer space
3.The Moon and other Celestial
Bodies
4.Liability for damaged caused by
space objects
EXPLANATION
1.AIRSPACE SPECIALIZED AGENCY OF
THE UN COORDINATING AND
REGULATING INTERNATIONAL AIR
TRAVEL
ICAO (International Civil Aviation
Organization), established by the
convention on the International Civil

RULES ESTABLISHED BY THE


CONVENTION AND EMBODIED
IN A DOCUMENT SIGNED IN
CHICAGO, ILLONOIS AND WENT
INTO FORCE ON APRIL 4, 1947
1.Rules of Airspace
2.Airplane registration and
safety
3.Rights of signatories in
relation to air travels

each contracting grants to the other


contracting states the following
freedoms of the air regarding
scheduled international air services:
The privilege to fly across its
territory without landing (Overflight)
The privilege to land for non-traffic
purposes (Non-traffic landing)
The privileged to put down
passengers, mail and cargo taken on
in the territory of the State whose
nationality the aircraft posses
(Putting down passengers, mail and
cargo)

The privilege to take on passenger,


mail and cargo destined for the
territory of the state whose
nationality the aircraft possesses
(Taking on passenger, mail and
cargo)
The privilege to take on
passengers, mail and cargo
destined for the territory of any
such territory (Taking on and
putting down passengers, mail and
cargo)

They have the


nationality of the State
in which they are
registered and they shall
bear its appropriate
nationality and
registration marks when
they engage in
international air
navigation. (Article 17,

the 1970 Hague Convention.


(Convention for the
suppression of Unlawful
Seizure of Aircraft which was
signed at The Hague on
December 16, 1970). It is
committed by any person who
on board an aircraft in flight
shall unlawfully, by force or
threat thereof, or by any other
form of intimidation, seizes, or
exercises control of, that
aircraft, or attempts to perform

(Convention for the


suppression of the Unlawful
acts against the safety of Civil
Aviation) which entered into
force on January 26, 1973. It
covers other acts that place the
safety of an aircraft in
jeopardy. It is committed by
any person who unlawfully and
intentionally commit any of the
following acts which render
and aircraft incapable of flight
or are likely to endanger the

1.)Performing an acts of
violence against a person on
board an aircraft in flight;
2.) Destroying an aircraft in
service of causing damage to
such an aircraft;
3.) Placing or causing to be
placed on an aircraft, in service
a device or substance which is
likely to destroy that aircraft;

4.) Destroying or damaging air


navigation facilities or
interfering with their
operation;
5.)Communicating information
which he knows to be false
thereby endangering the
safety of an aircraft in flight.
(Montreal Convention, Article I)

JURISDICTION OVER OFFENSES


COMMITTED ABOARD AN AIRCRAFT:
General Rule: It is the flag state or the
state or the state where the aircraft is
registered that has jurisdiction over the
offenses committed on board an aircraft .
However, if offenses are committed
abroad while the aircraft was flying over
the airspace of another state, then the
latter sate may assert jurisdiction based
on the principle or territoriality, or
sometimes based on the nationality
principle and universality.

DUTY OF THE STATE


THAT IS A PARTY TO THE
1970 HAGUE
CONVENTION OR THE
MONTREAL CONVENTION
REGARDING HIJACKING
AND SABOTAGE:

They have a duty to prosecute or


extradite hijacking and sabotage in
the following cases:
When the offenses is committed on
board an aircraft registered in that
State;
When the aircraft on board which
the offense is committed lands in its
territory with the alleged offender
still on board;
When the alleged offender is
present in its territory.

not wish to prosecute


the alleged offender,
what will be its duty?
It has the duty to
extradite him to other
state parties to the
Conventions. (1970
Hague Convention,
article 4; Montreal
Convention, Article 5)

Basis
Article 7, 1970 Hague Convention and the
Montreal Convention which provides as
follows:
The Contracting State in the territory of
which the allege offender is found shall, if it
does not extradite him, be obliged, without
exception whatsoever and whether or not
the offence was committed in its territory,
to submit the case to its competent
authorities for the purpose of prosecution.
Those authorities shall take their decision
in the same manner as in the case of any
ordinary offence of a serious nature under
the law of that State.

construction company with


principal offices is Manila
leased an aircraft registered in
England to ferry construction
workers to the Middle East.
While on flight to Saudi Arabia
with a Filipino crew provided
by the lessee, the aircraft was
hijacked by drug traffickers.
The hijackers were captured in
Damascus and sent to the
Philippines for trial. Do Courts
in Manila have jurisdiction over

A-As above-mentioned, hijacking is a


universal crime, and as such, it may
be prosecuted and, tried and
punished in the competent court of
any country were the offender may
be found or to any country were he
may be brought. Jurisdiction over
hijacking has no territorial limits.
( US vs. Furlong [1820], 5 Wheat.,
184, cited in the people vs. Lol-lo, 43
Phil. Reports 19, February 27, 1922)

2.OUTER SPACE
BAR QUESTION, 2003
Q-What is outer space?
A-The area that lies beyond the
airspace of the Earth. But as to
where it begins, there is no
university accepted reference
point. The Outer Space Treaty did
not define outer space because of
its non-identifiable dimension.
Over the years, several definitions
have also been supported:

It is the of air flight;


It is the point at which the
atmosphere will no longer
sustain human life;
It is the lowest point at which a
satellite can orbit;
It is the point at which
centrifugal forces replace
aerodynamic forces;
It is the limit of a states
effective control over its
airspace; and
It is the current orbital

Q-Who or which can exercise jurisdiction


over astronauts while in outer space?
A-A state on whose registry an object
launched into outer space is carried shall
retain jurisdiction and control over such
object, and over any personnel thereof,
while in outer space or on a celestial body.
It further state that ownership of objects
launched into outer space, including
objects landed or constructed on a celestial
body, and of their component parts, is not
affected by their presence in outer space
or on a celestial body or by their return to
the Earth. (Outer Space Treaty, Article 8)

over the outer space including the


moon and other celestial bodies.
However, States may explore the use
of outer space, including the moon
and other celestial bodies, provided
it is carried out for the benefit and
interest of all countries, irrespective
of their degree of scientific
development, and shall be the
province of all mankind. Likewise,
the same shall be free for
exploration and use by all States
without discrimination of any kind,
on a basis of equality and in
accordance with International law,

3.MOON AND OTHER CELESTIAL BODIES


BAR QUESTION, 1979
Q-May the USA lay exclusive claim over
the moon, having explored it and having
planted her flag thereon to the exclusion
of other States?
A-the moon being the common heritage
of mankind is not subject to
appropriation by any State by means of
use or occupation. Likewise, the planting
of the flag thereon does not create a
right to own the surface or any area of
the moon. (Article 11, Moon Treaty)

The moon and other celestial


bodies shall be exclusively for
peaceful purposes. The
following military applications
are prohibited:
Placing in orbit around the
earth any objects carrying
nuclear weapons or any other
kinds of weapons of mass
destruction;
Installing nuclear weapons or
any other kinds of weapons of
mass destruction on celestial

To station nuclear weapons or


any other kinds of weapons of
mass destruction in outer space
in any manner;
Establishment of military bases,
installations and fortifications,
the testing of any type of
weapons and the conduct of
military maneuvers on celestial
bodies. (Article 4, Outer Space
Treaty)

4.RULES ON LIABILITY FOR


DAMAGED CAUSED BY SPACE
OBJECTS LAUNCHED INTO OUTER
SPACE
1. A launching State shall be
absolutely liable to pay
compensation for damage caused
by its space object on the surface
of the earth or aircraft in flight.
(Article 2, Liability Convention of
1972)

In the event of damage being


caused elsewhere than on the
surface of the earth to a space
object of one launching State or
to persons or property on board
such a space object by a space
object of another launching
State, the latter shall be liable
only if t he damage is due to its
fault or the fault of persons for
whom it is responsible. (Article 3)

3.Whenever two or more


States jointly launch a space
object, they shall be jointly and
severally liable for any
damaged caused ..A State from
whose territory or facility a
space object is launched shall
be regarded as a participant in
a joint launching. (Article 4)

PLES/DOCTRINES IN PUBLIC
INTERNATIONAL LAW)
In connection with treaties
PACTA SUNT SERVANDA-(Treaties
must be observed in good faith). If
a treaty is contrary to a
signatorys national constitution,
the international legal orders
demands a faithful compliance
with the treaty to avoid
international embarrassment. If
necessary, the State concerned
must even modify its national
legislation and constitution to

A State may unilaterally


withdraw from a treaty when
there is a vital change of
circumstances. The reason for
this is because if the change in
circumstances affects a
signatory State, and to comply
with the treaty provisions
would seriously jeopardize its
own existence, a withdrawal is
allowed because its
fundamental right to exist is
stronger than its duty to

time will usually be upheld by the


municipal tribunal. (Remember the
rule in case of conflict between
public international and municipal
law, thus: If the conflict is with
respect to international law and a
statue, the rules of international law
are given equal standing with, but
are not superior to, national
legislative enactments. A treaty
may repeal a statute, and a statute
may repeal a treaty; thus, the
principle of lex posterior derogat
priori, that which comes last in time,
will usually be upheld by the

PACT this is a special treaty


usually entered into for
sentimental reasons.
CONVENTION- this is an
informal treaty which deals
with specific subjects
AGREEMENT, ARRANGEMENTS,
ACCORD-this is an agreement
on administrative or technical
matters.

CONCORDATS-agreements entered
into by the Pope with various heads
of States.
DECLARATIONS-these are formal
reciprocal agreements which may
deal with: (1) the rights and
privileges of the nationals of a state;
or (2) principles in accordance with
which States propose to act; or (3)
grounds for mutual action on the
part of States (Wilson and Tucker,
op. cit. p. 209). There are two special
kinds of declaration

error in etiquette or in the


draftsmanship of a treaty
should not be considered as a
precedent;
Letters reversals-declarations
that an alteration in ceremonial
practices is being made only as
an exception to the general
rule.
Protocol this may refer either
to a supplemental treaty or to
an amendment to a treaty.
(Paras, Public International

9.MOST FAVORED NATION CLAUSE-A clause


which provides that a State pledges to give
to the other signatory whatever privileges
or concessions the first State may give the
third State. Example: If there is such a
clause in our treaty with Japan, we should
also give to Japan whatever rights we may
give to the other countries. If the clause is
reciprocal, we will be given the same
treatment by Japan. if in all treaties of the
Philippines with the other States, there is
such a clause, the result will be that all
States will be equally favored. In such a
case, none will be the most Favored.

10.TREATY-It is an
international agreement
embodied in a single, formal
instrument entered into by
and between signatory States
or international organizations
of States, intended to create
rights and obligations, or to
establish relationships,
governed by international law.

II. In connection with the


fundamental rights of States
(particularly the right of property
and jurisdiction)
1.Continental shelf of a country It
is that part of the seabed and
subsoil of t he submarine areas
contiguous to the coast but outside
the area of the submarine zone.
Why is the continental shelf
important ?

It is important because
of the rich natural
resources found therein.
This is , in fact,
incorporated in the
Petroleum Act.

foreign vessels to pass through


territorial waters, specially
those connecting two open
seas, provided: (1)that the
passage is innocent which
means that there is no ulterior
motive for the passage, and all
the regulations of the state
concerned must have been
complied with; and (2) That
there is only a passage which
means that there is merely a
passing through, with no

3.Territorial Sea-This is also


known as the maritime belt. It is
that portion of the sea adjacent
to the coast of a State which is
under its jurisdiction control.
4.Freedom of the Seas-It means
that no part of the sea as such
can be subjected to the
sovereignty of any State. It
cannot therefore be incorporated
into the territory of any State
through occupation.

on the high seas, subject only


to international law and the
laws of the flag state.
6.Contigous Zone It is the
zone extending up to 12
nautical miles from the
territorial sea. Although it is
not technically a part of the
territory of the State, the
coastal State may exercise
limited jurisdiction over the
contiguous zone as a
preventive measure to insure

7.Exclusive Economic
Zone-It is the zone which
extends up to 200 miles
from the low water mark
or the baselines as the
case may be.
8.Archipelago Doctrine

III. In connection with the right of


legation or diplomatic
intercourse
1.Right of Legation This is the
right of a State to send envoys or
establish diplomatic missions, or
the right to receive such envoys
or missions. The first is known as
the active right of legation. The
second is known as the passive
right of legation.

2.Ambassadors They are the


political, cultural, economic, and
social representatives of their
countries to a foreign State.
Their offices are called as
embassies.
3.Ministers plenipotentiary or
envoys extraordinary-They are
ministers assigned to attend to
a special function(i.e., signing a
treaty)

economic, and social


representatives of their
countries to a foreign principal
city.
Their offices are known as
legations.
5.The Charges daffaires (in
charge of affairs)-They are
those officially below the rank
of the ministers resident. They
take over when the latter is
absent. In other words, they
are temporarily in charge no

to the same State from a body


known as a Diplomatic Corps.
The head of this body is
usually the Papal Nuncio, If
there is one, or the oldest
minister plenipotentiary who is
the head of the diplomatic
corps
7.Agreation-It is an informal
inquiry to find out the
acceptability of a proposed
envoy and an informal
conformity (agremen) of the

8.Letre de creance-this states the


name of the representative, his
rank, the character and general
object of this mission. It also
contains a request for favorable
reception and full credence. It is
sealed but the ambassador has
copies of the same.
9.Diplomatic passport-This
authorizes his travel and describes
both his person and his office.

promote friendly relations


between the sending State and
the receiving State, and the
development of their economic,
cultural and scientific relations;
to observe and report to his
country the developments in
the receiving State; to protect
the interests of the nationals of
his country within the limits
allowed by international law; to
represent his country in the
receiving State; to negotiate

diplomatic immunities
and privileges
1.Asylum- is the
authority of a State to
allow an alien who has
sought refuge from
prosecution or
persecution to remain
within the territory and
under its protection.

2.Territorial Asylum-refuge within


the territory of the sheltering
state, the protection which a
refugee obtain by escaping to, or
remaining upon, the territory of a
State other than that the State
that wants him, until the
protection is terminated by his
extradition.(McNair, Law on
Treaties, Vol. II, p. 67)

3.Exterritorial Asylum-Asylum in
what are considered the
extensions of a States
territory. This type includes:
asylum in foreign public ships;
diplomatic asylum-the protection
afforded by a state to a refugee
by granting him an asylum in or
upon its diplomatic buildings
within the territory of the State
that wants him. (Ibid)

V. In connection with consular


officials
1.Consul-A consul is a commercial
agent appointed by his Government
to reside in a foreign city, and
permitted by the foreign State to do
so in order that he may watch over
the commercial rights and privileges
of his own country therein, and thus
protect the rights of his countrys
nationals. (Paras citing Wilson and
Tucker, International law)

they are not allowed to engage


in any other profession or
business.
3.Consules electi-They are also
known as honorary or
commercial consuls. They are
selected by the appointing
Government either from its
own citizens engaged in
business in the country in
which they will be allowed to
exercise consular functions, or
from among the nationals of

State to the Secretary of Foreign


Affairs of the country in which the
consul is to serve.
5.Equator-This is the authorization
given by the sovereign of the
receiving state to the consul,
allowing him to exercise his
functions within the territory (See
Lawrence, Principles of International
Law, p. 197). The exequatur may be
granted conditionally; the grant may
even be refused for any or no
reason; once granted. The exequatur
may be granted conditionally; the
grant may even be refused for any

VI. In connection with exemptions


from jurisdiction
1.Doctrine of sovereign immunity
Under this doctrine, a State enjoys
immunity from the exercise of
jurisdiction by another State. The
courts of one State may not assume
jurisdiction over another State.
2.Acta jure imperii government act
3.Acta jure getiones-commercial act

Spies. When caught, they do not get


the privilege of being considered as
prisoners of war. (Article 29,
Hague Convention, 1970)
2.Privilegded combatants-if
captured, they are not supposed to
become prisoners of war .
3.Jus ad bellum (justice of war)
refers to the conditions under which
one may resort to war or force in
general; with a subdivision known as
jus contra bellum or the law on the
prevention of war;
4.jus in bello (justice in war)-governs
the conduct of belligerents during

VIII. Conditions for jus ad bellum


1.There must be a just cause on an injury
received;
2.Wars must be proportional to the costs
entailed in prosecuting them;
3.There must be a reasonable chance of
success;
4.Nations must be a reasonable chance of
success;
5.Only a legitimate authority may declare
war;
6.War must always be a last resort;
7.War may be only undertaken with the
right intention. (Grotuis, The Law of War
and Peace)

IX. In connection with


termination of war
1.Status quo anti vellum
Each of the belligerents
is entitled to the
territory and property
which it had possession
of at the commencement
of the war.

2.Doctrine of postliminium- The territory,


individuals and property that have come to
the possession or authority of the enemy
reverts to the possession and authority of
the original or legitimate sovereign. This
also means that when a territory which has
been occupied by the enemy comes again
into the power of the State during the
progress of the war through conquest or
otherwise, the legal State of the things
existing prior to the hostile occupation is
re-established. (Principles, Cases and
Comments in Constitution Law I, By Suarez,
citing Aruego, International Law, p. 60)

X. In connection with
forbidden methods of
warfare
1. No quarter method
An order to the effect
that no survivors are to
be left open after an
attack. This is inhuman
and not allowed as a
method of warfare.

2.Starvation method-Starvation
of the civilian population is
inhuman.
3.Reprisals-Acts of vengeance by
a belligerent directed against
groups of civilians or prisoners of
war.
4.Perfidy or Treachery It is the
treachery for soldiers who have
surrendered to take up arms and
attack the enemy.

XI. In connection with peaceful and


forcible sanctions
1.Diplomatic negotiations-It
constitutes the process by which
States settle their differences
through an exchange of views
between diplomatic agencies.
Discussions may be oral or written,
brief or prolonged. (Mavromamatis
Palestine Concessions Case, P.C.I.J.
Pub. Ser. A/2 p. 11)

2. Tender and exercise of good officesIt exist when third party, either alone
or in collaboration with others, offers
to help in the settlement of a dispute.
When the offer is accepted, there shall
be an an exercise of good offices.
3.Mediation-A third party offers to help
with a solution , usually based on
compromise (as contradistinguished
from good offices mediation offers a
solution; good offices merely brings
that parties together).

4.Enquiry and conciliation-It


simply means an ascertainment of
the pertinent facts and issues in a
dispute.
5.Arbitration-It is the reference of
the dispute to a commission or
international body, whose
decision, however, is NOT BINDING
on the parties; when the decision
is final and conclusive on the
parties together)

6. Reference to the Security


Council of the UN-When no
danger to international peace is
foreseen, the Security Council
may step in, but only if ALL THE
PARTIES to the dispute request
its intervention (Article 52, UN
Charter). When there is
DANGER to international peace,
the security council intervenes:

(a) On its own motion


(Article 34, UN Charter)
(b) On motion of the
General Assembly
(Article 11, UN Charter)
(c) On motion of the UN
Secretary-General
(Article 99, UN Charter)

(d) On motion by a UN
Member (Article 35, No.
1, UN Charter)
(e) On motion by a NonMember of the UN
(Article 35, No. 2, UN
Charter)

In case the Security Council


discovers a threat to
international peace, it shall
make the proper
recommendations on the
dispute (Article 39, UN Charter).
If the recommendations are not
heeded, the Council may take
enforcement action under
Article 41 of the Charter.

7.Reference to the International


Court of Justice-already discussed
XII. In connection with international
custom
Cabotage-Monopoly of a State in
coastwide trade shipping and
navigation.
Angary-Right of a belligerent to
seize or destroy neutral property, if
necessary. In maritime law, it means
seizure of a vessel for public
service.

of acquiring territories
Discovery this is an old mode
of acquiring ownership when
territories which were not yet
discovered and occupied can be
acquired by the discovering
state under the principle of
Terra Nulius (which means
that since it is a territory which
is not yet owned by or
belonging to any State
[Stateless territory], it can be
acquired under the principle of

Prescription-Elements of prescription as a
mode of acquiring territory:
Possession which must be continuous, public
and adverse.
Lapse of a reasonable period of time (which is
a question of fact and dependent on the
circumstances of each case.)
3.Cession It is a mode of acquiring territory
made either voluntarily (sale of donation) or
involuntary (on account of or as a result of
war).
Example:
Cession of Alaska by Russia to the US in 1867 .
Cession of the Philippines by Spain to the US
(Treaty of Paris, December 10, 1896)

4.Conquest- It is the acquisition of


sovereignty of a country by force of
arms, exercised by an independent
power, which reduces the vanquished
to the submission of its empire.
5.Accretion-It is a mode of Acquiring
property produced by or which is
attached or united to a thing already
owned by a person. In Roman Law,
this is Known as accession which may
either be:

(a)Accessio Continua
Accession occurring as a
consequence of forces
external of the thing
itself.
(b.)Accessio DiscretaAccession occurring as a
consequence of forces
inherent in the thing
itself.

of international law
1.State- is a community of
person, more or less numerous,
permanently occupying a
fixed territory, possessing an
organized government,
independent of external
control, to which a great body
of inhabitants render habitual
obedience. (Malcolm and
Laurel, Philippine
Constitutional Law, 3rd ed., 3,
citing Garner, Introduction to

2.Colony is a dependent political


community. It is composed of
citizens of the same country who
have migrated therefrom to live in
another country but remain subject
to the Mother State.
3.Dependencies is a territory
different from the country in which
supreme sovereign power resides,
but belongs rightfully to it, hence, it
is still subject to the loss which the
sovereign may impose.

4. Belligerent When the


insurgency has reached a
serious proportion, the rebels,
instead of being merely
considered insurgents, may be
properly called belligerents.
5.Mandates The purpose of
creating mandates is to give
them an opportunity to develop
economically and socially.
(Article 22

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