PUBLIC INTERNATIONAL LAW

Nature of Public International Law

Public International Law
Law that deals with the conduct of States and International organizations, their relations with
each other and in certain circumstances, their relations with persons, natural or juridical
HISTORY
Ancient International Law governed exchange of diplomatic emissaries, peace treaties, etc. in
the world of ancient Romans and earlier. The progressive rule of JUS GENTIUM seen as a law common
to all man became the law of the vast Roman Empire.
Modern International Law began with the birth of nation-states in the Medieval Age. Governing
principle was derived from Roman law or Canon Law which drew from natural law. Hugo Grotius
considered father of modern International law. What he called LAW OF THE NATIONS was later given
the name INTERNATIONAL LAW by Jeremy Bentham
The positivist approach reinterpreted International Law not on a basis of concepts derived from reason
but rather on basis of what actually happened in the conflict between states. With the emergence of
nation of sovereignty came the view of law as commands backed up by threats of sanction. In this view,
International law no law because not from command of sovereign.
Significant milestones in development of international law:
1.) Peace of Westphalia (ending 30 year war) established a treaty based framework for peace
cooperation. (it was at this time that PACTO SUNT SERVANDA arose)
2.) Congress of Vietnam (ending Napoleonic wars) created a system of multilateral political and
economic cooperation.
3.) Covenant of the league of Nations (including the Treaty of Versailles ending WW1) created the
Permanent Court of International Justice.
4.) Founding of UN in aftermath of WW2. Shift of power away from Europe and beginning of truly
universal institution. Universalization advanced by decolonization which resulted in expansion of
membership of UN. New states, carrying a legacy of bitterness against colonial powers, became
members.
5.) Cold war period succeeded in maintaining peace through balancing of 2 super powers.
6.) Dissolution of Soviet Union resulting in end of Cold War with re- emergence of International
relations based on multiple sources of power and not mainly ideology.
HUGO GROTIUS (De jure Belli Ac PacisLibriTes)
International practices, customs, rules and treaties proliferated to the point of complexity.
Several scholars sought to compile them all into organized treatises. The most important of these was
Hugo Grotius whose treatise De jure Belli Ac PacisLibriTesis considered the starting point for modern
international law. Before Hugo Grotius, most European thinkers treated law as something independent
of mankind, with its own existence. Some laws were invented by men but ultimately they reflected the
essential natural law. Grotius was no different, except in one important respect. Unlike the earlier,
thinkers, who believed that the natural law was imposed by a debt, Grotius believed that the natural law
came from an essential universal reason, common to all men.
This rationalist perspective enabled Grotius to posit several rational principles underlying law.
Law was not imposed from above, but rather derived from principles. Foundation principle included the
anxious the promises must be kept, and that harming another requires a situation. These 2 principles
have served as the basis for much of subsequent international law. Apart from natural- law principles,
Grotius also dealt with international custom or voluntary law. Grotius emphasized the importance of
actual practices, customs and treaties- what is done- as opposed to normative rules of what ought to
be done. This positivist approach to international law strengthens over time. As nations became the
predominant form of state in Europe, and their man-made laws became more important than religious
doctrines and philosophies, the law of what is similarly became more important than the law of what
ought to be.
Difference between Public International Law and Conflicts of Law
Public International Law Conflicts of Law
As to NATURE International

It is a law of a sovereign over
those subjected to his way

Transactions of states private

Part of Political Law
Municipal or National

Except when embodied in a
treaty or convention, becomes
international in character. It is a
law, not a above, but between,
sovereign states and is
therefore, a WEAKER LAW

Part of Civil Law
As to REMEDIES/ SETTLEMENT International Modes of
Settlement

Like Negotiations, and
arbitration, reprisals and even
war
Local or Municipal Tribunals
through local administrative and
judicial processes
As to SOURCE Derived from such sources as
international customs,
international conventions and
the general principles of law
Consists mainly from the law
making authority of each state
As to PARTIES International Entities

Applies to relations states INTER
SE and other international
persons
Private Persons

Regulates the relations of
individuals whether of the same
nationality or not
As to ENFORCEMENT International Sanctions Sheriff/ Police
Responsibility for violation Infractions are usually collective
in the sense that it attaches
directly to the state and not its
nationals
Generally, entails only individual
responsibility
Regulates the political
intercourse of nations with each
other or concerns questions of
rights between nations
Regulates the comity of states in
giving effect in one to the
municipal laws of another
relating to private persons or
concerns the rights of persons
within the territory and
dominion of one state or nations
by reason of acts, private or
public, done within the dominion
of another, and which is based
on the broad general principle
that one country will respect and
give effect to the laws of another
so far as can be done
consistently with its own
interests.

1. The LAWS of PEACE
a. Governs the normal relations of states
b. Human Rights Law

2. The LAWS of WAR
a. When war breaks out between or some of them
b. International Humanitarian Law
c. Laws of Armed Conflicts

3. The LAWS of NEUTRALITY
a. Those not involved in the war, however, their relatives with the belligerents, or those
involved in the war, are governed by the laws of neutrality
THE SOURCES OF INTERNATIONAL LAW
In the absence of a centralized legislative, executive and judicial structure, there is no single
body able to legislate and there is no system of courts with compulsive power to decide what the law is
nor is there a centralized repository of international law. Thus, theres a problem of finding out where
the law is. Nevertheless, International Law exists and there are sources where the law can be found.
2 CLASSIFICATIONS:
1. Formal Sources:
a. The various processes by which rules come into existence (e.g. legislation, treaty making
and judicial decision making and the practice of states)

2. Material Sources:
a. The substance and content of the obligation. They identify what the obligations are.
Also referred to as evidence of International Law (e.g. state practice, UN resolutions,
treaties, judicial decisions and writings of jurists)
The doctrine of sources lay down conditions for verifying and ascertaining the existence of legal
principles. The conditions are observable manifestations of the wills of the states as revealed in the
processes by which norms are formed (treaty and state practice accepted as law) The process of
verification is inductive and positivistic.
PRIMARY SOURCES
1. International Treaties and Conventions
a. Are voluntarily entered into by states and encapsulates express obligations entered
into,
2. International Customs
a. These are the consistent practice of states adopted over several years
b. Is usually invoked where there are no treaties that exist to cover a particular issue or
situation.
c. A custom need not be worldwide as it can be limited to a region only
3. General Principles of International Law
a. These are the accepted principles of law under major legal systems
i. e.g. all states created equal
SUBSIDIARY SOURCE
4. Decisions of Courts
a. Decisions of the International Court of Justice and other international Tribunals are
given weight. Decisions of municipal or domestic courts are given lesser weight except
if they pertain to precedent-setting cases such as the POQUETE HABANA CASE
5. Teachings of Publicists
a. The court shall apply the teachings of the most highly qualified publicists of the
various nations. As subsidiary means for the determination of rules of law
i. Publicist: learned Writers
BASES OF INTERNATIONAL LAW
1. The Law of Nature School
a. Believes that International law is based on the rules of conduct discoverable by every
individual in his own conscience and though the application of right reason
b. As he is bound to observe these rules without need of a formal or external prescription,
so too is the state, which is composed of individuals.
2. Positivist School
a. Holds that international law is based on the consent of states, and on such consent only.
b. The consent is expressed in the case of conventional law, implied in the case of
customary law, and presumed in the case of the general principles of law
3. The Eclectic or Grotian School
a. Represents a compromise between the first 2 schools of thought and submits that
international law is binding partly because it is good and right and partly because states
have agreed to be bound by it
b. This appears to be the most widely accepted
FUNCTIONS OF INTERNATIONAL LAW
The Principal Functions are:
1. To promote international peace and security
2. To foster friendly relations among nations and to discourage the use of force in the solution of
differences among them
3. To provide for the orderly regulation of the conduct of states in their mutual dealings
4. To insure international cooperation in the pursuit of certain common purposes of an economic,
social, cultural or humanitarian character.
BASES OF APPLYING INTERNATIONAL LAW IN LOCAL JURISDICTION
Doctrine of Incorporation
International laws are adopted as part of a states municipal law, by a general provision or
clause usually in its Constitution.
Sec. 2, Article 2, 1987 Constitution
The Philippines renounces war as an instrument of national policy, adopts the generally
accepted principles of international law as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with all nations
CASE: SECRETARY OF JUSTICE vs. LANTION
Facts: A possible conflict between the US-RP Extradition Treaty and Philippine Law
Issue: WON under the Doctrine of Incorporation, International Law prevails over Municipal Law
HELD:
No, under the doctrine of Incorporation, rules of international law form part of the law of the land and
other legislative action is needed to make such rules applicable in the domestic sphere
The doctrine of incorporation is applied whenever local courts are confronted with situations in which
there appears to be a conflict between a rule of international law and the provisions of the local states
constitution/statute.
First, efforts should first be exerted to harmonize them, so as to give effect to both. This is because it is
presumed that municipal law was enacted with proper regard for the generally accepted principles of
international law in observance of the incorporation clause.
However, if the conflict is irreconcilable and a choice has to be made between a rule of international law
and municipal law, jurisprudence dictates that the municipal courts should uphold municipal law.
This is because such courts are organs of municipal law and are accordingly bound by it in all
circumstances. The fact that international law was made part of the law of the land does not pertain to
or imply the primacy of international law over national/municipal law in the municipal sphere.
The doctrine of incorporation, as applied in most countries, decrees that rules of international law are
given equal standing with but are not superior to, national legislative enactments.
In case of conflict, the courts should harmonize both laws fisrt and if there exists an unavoidable
contradiction between them, the principle of LEX POSTERIOR DEROGAT PRIORI-a treaty may repeal a
statute and a statute may repeal a treaty- will apply. But if these laws are found in conflict with the
Constitution, these laws must be stricken out as invalid.
In states where the constitution is the highest law of the law of the land, such as in ours, both statutes
and treaties may be invalidated if they are in conflict with the constitution.
Supreme Court has the power to invalidate a treaty.
Section 5, Par 2(a), Article 8, 1987 Constitution:
Sec. 5. The Supreme Court shall have the following powers:
(2) Review, revise, modify, or affirm or appeal or certiorari, as the law or the Rules of Court may provide,
final judgements and orders of lower courts in:
(b) All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulations in
question.
Doctrine Of Transformation
Requires the enactment by the legislative body of such international law principles as are sought
to be part of municipal law.
Soft Law vs. Hard. Law
Soft law means commitments made by negotiating parties that are not legally binding.
Hard law means binding laws. To constitute law, a rule, instrument or decision must be
authoritative and prescriptive. In international law, hard law includes self-executing treaties or
international agreements, as well as customary laws. These instruments result in legally
enforceable commitments for countries (states) and other international subjects

THEORIES DEFINING RELATIONSHIP OF INTERNATIONAL LAW WITH DOMESTIC LAW
Theory of Monism
International law and domestic law are one legal system, but international law is superior to the
Domestic Law
It proposes that international law cannot be limited by a States Constitution. If a conflict exists
between a Domestic Law and International Law, it is international Law which should prevail.
Theory of Dualism
International Law and Domestic Law are distinct and separate. The application of international
law is limited by the Domestic Law or the States Constitution. It would appear that the Philippines is a
dualist state.
SUBJECTS OF INTERNATIONAL LAW
The Subjects and Objects of International Law
A subject of international law is an entity with capacity of possessing international rights and
duties and of bringing international claims. This entity is said to be an international person or one having
an international personality, on the basis of customary or general international law. (Magallona, 18-19).
A subject of Public International Law is an entity directly possessed of rights and obligations in
the international legal order, e.g. a sovereign state, such as the Philippines. (Paras, 43).
An object of Public International Law, on the other hand, is merely indirectly vested with rights
and obligations in the international sphere, e.g. a Filipino private citizen is generally regarded not as a
subject but an object of Public International Law because, while he is entitled to certain rights which
other states ought to respect, he usually has no recourse except to course his grievances through the
Republic of the Philippines and its diplomatic officers. (id.).
SUBJECTS:
1. State
A group of people, living together in a fixed territory, organized for political ends under an
independent government, and capable of entering into international relations with other states.
Elements:
a. People
b. Territory
c. Government
d. Independence or Sovereignty
Doctrine of Acts of State
Every sovereign state is bound to respect the independence of every other sovereign state, and
the courts of one country, will not sit in judgement on the acts of the government of another done with
in its own territory.
2. Colonies and Dependencies
From the viewpoint of international law, they are considered as part and parcel of the parent state
through which all its external relations are transacted with other states.
a. Colony
A dependent political community consisting of a number of citizens of the same country who
have migrated therefrom to inhabit in another country, but remain subject to the mother state

b. Dependency
A territory distinct from the country which the supreme sovereign power resides but belongs
rightfully to it and subject to the laws and regulations which the sovereign may prescribe
3. Mandates and Trust Territories
There are non-self governing territories which have been placed under international supervision to
insure their political, economic, social and educational advancement.
4. The Vatican
In 1928, Italy and Vatican concluded the Lateran Treaty for the purpose of assuring to the Holy See
absolute and visible independence and of guaranteeing to it absolute and indisputable sovereignty in
the field of international relations
CASE: The Holy See vs. Rosario, Jr. Dec. 3, 1994
The Lateran Treaty established the statehood of the Vatican City "for the purpose of assuring to the Holy
See absolute and visible independence and of guaranteeing to it indisputable sovereignty also in the
field of international relations"
In view of the wordings of the Lateran Treaty, it is difficult to determine whether the statehood is vested
in the Holy See or in the Vatican City. Some writers even suggested that the treaty created two
international persons the Holy See and Vatican City (Salonga and Yap, supra, 37).
The Vatican City fits into none of the established categories of states, and the attribution to it of
"sovereignty" must be made in a sense different from that in which it is applied to other states.
The Vatican City represents an entity organized not for political but for ecclesiastical purposes and
international objects.
Despite its size and object, the Vatican City has an independent government of its own, with the Pope,
who is also head of the Roman Catholic Church, as the Holy See or Head of State, in conformity with its
traditions, and the demands of its mission in the world. Indeed, the world-wide interests and activities
of the Vatican City are such as to make it in a sense an "international state"
One authority wrote that the recognition of the Vatican City as a state has significant implication that
it is possible for any entity pursuing objects essentially different from those pursued by states to be
invested with international personality.
Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy See
and not in the name of the Vatican City, one can conclude that in the Pope's own view, it is the Holy See
that is the international person.
The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The Holy
See, through its Ambassador, the Papal Nuncio, has had diplomatic representations with the Philippine
government since 1957 (Rollo, p. 87). This appears to be the universal practice in international relations.
Principles:
Article 31(a) of 1961 Vienna Convention on Diplomatic Relations
In Article 31 (a) of the 1961 Vienna convention on Diplomatic Relations, a diplomatic envoy is
granted immunity from the civil and administrative jurisdiction of the receiving state over any
real action relating to private immovable property situated in the territory of the receiving state
which the envoy holds in behalf of the sending state for the purposes of the mission.
Articles 20-22 of 1961 Vienna Convention on Diplomatic Relations
Lateran Treaty
(1929) Pact of mutual recognition between Italy and the Vatican, signed in the Lateran Palace,
Rome. The Vatican agreed to recognize the state of Italy, with Rome as its capital, in exchange
for formal establishment of Roman Catholicism as the state religion of Italy, institution of
religious instruction in the public schools, the banning of divorce, and recognition of papal
sovereignty over Vatican City and the complete independence of the pope. A second concordat
in 1985 ended Catholicism's status as the state religion and discontinued compulsory religious
education.

5. The United Nations (192 Nations)
International organization created at San Fransisco Conference held in the US from April 25 to
June 26, 1945. UN succeeded the League of Nations and is governed by a charter that came into
force on October 24, 1945
Official Languages of UN:
French
Russian
English
Spanish
Chinese
Arabic
Principal Purposes of UN:
1. Maintain international Peace and Security
2. Develop friendly relations among nations
3. Achieve international cooperation
4. Centre for harmonizing actions of nations for attainment of these common goals
Structure of the UN:
a. General Assembly
Central organ which all members are represented
2/3 vote required
Carlos P. Romulo served as the President of the 4
th
session of General Assembly

Functions:
i. Supervisory
ii. Budgetary
iii. Constituent
iv. Deliberative
v. Elective

b. Security Council
Organ responsible for the maintenance of peace and security; undertakes preventive and
enforcement actions
Membership:
1. Permanent Members
China
UK
France
Russia
USA
2. Non-Permanent Members
5- from African and Asian States
2- from Latin American States
2- from Western European and Other States
1-from Eastern European States

c. Economic and Social Council
Exerts effort towards higher standards of living solutions of international economic, social health
and related problems, universal respect for and observance of human rights and fundamental
freedoms

d. Trusteeship Council
Organ charged with the administration of the International Trusteeship System (idle Council)

e. The Secretariat
Chief administrative organ of the UN
Current Secretary General(as of 2012)- Ban Ki-Moon of South Korea(8
th
)
Secretaries-General serve for five-year terms that can be renewed indefinitely

f. International Court of Justice
Judicial organ of UN; world court governed by the statute which is annexed to and made
part of the UN charter
Court is composed of 15 judges, who are elected for terms of office of nine years by the
United Nations General Assembly and the Security Council.
Election every 3 years
Peace palace in Hague, Netherlands
Must possess the qualifications reuired in their respective countries for appointment to
the highest judicial offices
CezarBengzon of SC elected to the ICJ

6. Belligerent Community
They are group of rebels under an organized civil government who have taken up arms
against legitimate government. When recognized, considered as a separate state for purposes of
conflict and entitle to all the rights and subjected to all the obligations of a full pledged
belligerent under the laws of war.

7. International Administrative Bodies
Certain administrative bodies created by agreement among states may be vested with
international personality when 2 conditions concur:
a. Their purpose are mainly non-political
b. They are autonomous and not subject to the control of any state
i. Examples:
1. International Labour Organization
2. Food and Agricultural Organization
3. World Health Organization
CASE: SOUTHEAST ASIAN FISHERIES DEVELOPMENT CENTER-AQUACULTURE DEPARTMENT(SEAFDEC-
AQD), vs. NATIONAL LABOR RELATIONS COMMISSION
Facts:
Southeast Asian Fisheries Development Center-Aqua Culture Department is a department of SEAFD, an
international institution formed by an international agreement of Southeast Asian countries. Private
petitioner sent a letter to private respondent, informing him of his termination due to financial
restraints of the department. Latter was informed that he was going to receive separation pay. Upon
failure of petitioner to give separation pay, private respondent Lazaga filed a complaint with the Labor
Arbiter, which decided in favor of private respondent amidst contention of petitioner that Labor Arbiter
doesnt have jurisdiction over them. NLRC affirmed the decision of Labor Arbiter.
Issue:
WON SEAFEC- ACD is immune from suit owing to its international character
Held:
YES, being an intergovernmental organization, SEAFDEC including its Departments (AQD), enjoys
functional independence and freedom from control of the state in whose territory its office is located.
One of the basic immunities of an international organization is immunity from local jurisdiction, i .e, that
it is immune from the legal writs and processes issued by the tribunals of the country where it is found.
The obvious reason for this is that the subjection of such an organization to the authority of the local
courts would afford a convenient medium thru which the host government may interfere in their
operations or even influence or control its policies and decisions of the organization; besides, such
subjection to local jurisdiction would impair the capacity of such body to discharge its responsibilities
impartially on behalf of its member-states
8. Individuals
Only as an object of international law who can act only through the instrumentality of his own
state in matters involving other states
THE CONCEPT OF STATE
ELEMENTS OF THE STATE:
1. People
It refers to the human beings living within its territory. They should be of both sexes and
sufficient in number to maintain and perpetuate themselves
Individuals of different races, languages and religion very often actually from one people
that is to say, the people of one state
Citizens, Nationals, Subjects

2. Territory
It is the fixed portion of the surface in the earth in which the people of the state reside
A defined territory is necessary for jurisdictional reasons and in order to provide for the
needs of the inhabitants
o As a practical Requirement:
It should be big enough to be self- sufficient and small enough to be
easily administered and defended
The Terrestrial or Land Domain
It refers to the land mass on which the inhabitants live.
Modes of Acquiring Land Territory
1. Discovery and Occupation
Original mode by which territory not belonging to any state or TERRA NULLIUS is placed
under the sovereignty of the discovering state
Need not be uninhabited provided that it can be established that the natives are not
sufficiently civilized and can be considered possessing not rights of sovereignty but only
rights of habitation
o Requisites for a valid discovery and occupation
Possession
Administration
Inchoate Title of Discovery
It is acquired by the claimant state pending compliance with the second requirement
which is administration

2. Prescription
Continuous and uninterrupted possession over a long period of time, just like in civil law.
In international law, however, there is no rule of thumb as to the length of time needed for
acquisition of territory through prescription
Grotius Doctrine if Immemorial Prescription:
Uninterrupted possession going beyond memory

3. Cession( by treaty)
Territory is transferred from 1 state to another by agreement between them (sale,
donation, barter/ exchange and testamentary disposition)

4. Subjugation
Having been previously conquered or occupied in the courses of war of the enemy, is formally
annexed to it at the end of the war, conquer alone inchoate right since it is the formal act of
annexation that complements acquisition.

5. Accretion
Based on AccessioCedotPrincipoliaccomplished through both natural or artificial processes as by
the gradual and imperceptible deposit of soil on the coasts of the country through the action of
the water or by reclamation projects.
Loss of Territory
a) Dereliction
o Physical withdrawal
o Abandonment
b) Cession- agreement between states
c) Conquest
d) Erosion or other natural causes
e) Prescription
f) Subjugation
g) Revolution
Doctrine of Effective Occupation
Under this doctrine, discovery of terra nullius is not enough to acquire title to the discovered
territory
The Internal Waters
Also called as National or Inland, are those found in the bodies of water within the land mass
and the waters in gulfs and bays up to the point where the territorial waters begin.
The Maritime or Fluvial Domain
This consists of the bodies of water within the land mass and the waters adjacent to the coasts
of a state to a specified limit. Included In the maritime and fluvial domain are the landlocked lakes,
rivers, man0made canals, the waters in certain gulfs, bays and straits, and the territorial sea.
Archipelago Doctrine
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 (2
nd
sentence, Article 1, 1987
Constitution)
To determine the territorial owners
Archipelago= Pelgus which refer to the islands, a sea studded with many island
o Kinds:
Coastal- situated close to a mainland and may be considered a part thereof
Example: Lofien islands, Norway
Mid-ocean- situated in the ocean or such distance arising from the coasts of frim
land
Example: Philippines
United Nations Convention on the Laws of the Sea (UNCLOS)
Uniform breadth of 10 miles for the territorial sea, a contiguous zone of 18 miles from the
outer limits of the territorial sea, and economic zone or patrimonial sea extending 200
miles from the low- water mark of the coastal
3 international Conferences have been called to formulate a new law of the seas.
The conference have dealt with such controversial matters a the breadth of the territorial
seas, use of straits for international navigation, continental shelf, concept of an exclusive
economic zone, freedom of the high seas, status of archipelagos and regime of islands.
o 1
st
conference: held in 1956-58 at Geneva Switzerland
o 2
nd
Conference: held in 1960 at Geneva Switzerland
o 3
rd
conference: held in 1970 by the UN which resulted in the adoption of a new
convention of the Law of the Sea and became effective on: November 16, 1994,
signed in Jamaica, 119 out of 150 conference-states
Straight Baseline Method
Drawn connections selected points on the coast without appreciable departure from the general
shape of the coast
Thalweg Doctrine
For boundary rivers, in the absence of an agreement between the riparian states, the boundary
line is laid on the middle of the main navigable channel.
Middle of the Bridge Doctrine
Where there is a bridge over a boundary river, the boundary line is the middle or center of the
bridge.
Bays and Gulfs
o A bay is a well-marked indention in the coast the area of which at least is as large or
larger than, that of the semi- circle whose diameter is a line drawn across its mouth.
Also referred to as the juridical bay
Strait
o Narrow passageways connecting two bodies of water. If the distance between the 2
opposite coast is not more than six miles, they are considered internal.
Canals
Territorial Sea
The belt of the sea located between the coast and internal waters of the coastal state on the one hand
and the high seas on the other, extending up to 12 nautical miles from the low water mark or in case of
archipelagic state, from the baseline.
Philippine Territorial Sea
Based on historic rights or title or as it is often called the treaty limits theory
o 3 mile limit rule
Doctrine of Right of Innocent Passage
Means navigation through the terrirorial seas of a state for the purpose of traversing that seas
without entering internal waters or of proceeding to internal waters, or making for the high seas from
internal waters, as long as it is not prejudicial to the peace, public good order or security of the coastal
state.
Applicable only on passage on territorial sea and not to internal waters. Point of passage
is important
Involuntary entrance may be due to the following:
1. Lack of provisions
2. Unseaworthiness of the vessel
3. Increment weather
4. Other cases of force majeure like pursuit of pirates
Territorial sea vs. Internal waters of the Philippines
Territorial sea higheas up to 12 nautical miles
Internal waters- all waters internal such as canals
CASE: Portugal vs. India
It was common ground between the Parties that during the British and post-British periods the passage
of private persons and civil officials had not been subject to any restrictions beyond routine control.
Merchandise other than arms and ammunition had also passed freely subject only, at certain times, to
customs regulations and such regulation and control as were necessitated by considerations of security
or revenue. The Court therefore concluded that, with regard to private persons, civil officials and goods
in general there had existed a constant and uniform practice allowing free passage between Daman and
the enclaves, it was, in view of all the circumstances of the case, satisfied that that practice had been
accepted as law by the Parties and had given rise to a right and a correlative obligation.
As regards armed forces, armed police and arms and ammunition, the position was different.
As regards arms and ammunition, the Treaty of 1878 and rules framed under the Indian Arms Act of
1878 prohibited the importation of arms, ammunition or military stores from Portuguese India and its
export to Portuguese India without a special licence. Subsequent practice showed that this provision
applied to transit between Daman and the enclaves.
The finding of the Court that the practice established between the Parties had required for the passage
of armed forces, armed police and arms and ammunition the permission of the British or Indian
authorities rendered it unnecessary for the Court to determine whether or not, in the absence of the
practice that actually prevailed, general international custom or general principles of law recognized by
civilized nations, which had also been invoked by Portugal, could have been relied upon by Portugal in
support of its claim to a right of passage in respect of these categories. The Court was dealing with a
concrete case having special features: historically the case went back to a period when, and related to a
region in which, the relations between neighbouring States were not regulated by precisely formulated
rules but were governed largely by practice: finding a practice clearly established between two States,
which was accepted by the Parties as governing the relations between them, the Court must attribute
decisive effect to that practice. The Court was, therefore, of the view that no right of passage in favour
of Portugal involving a correlative obligation on India had been established in respect of armed forces,
armed police and arms and ammunition.
The Court found that the events which had occurred in Dadra on 21-22 July 1954 and which had resulted
in the overthrow of Portuguese authority in that enclave had created tension in the surrounding Indian
district, having regard to that tension, the Court was of the view that India's refusal of passage was
covered by its power of regulation and control of the right of passage of Portugal.
Contiguous Zone
This refers to the waters beyond the territorial seas but not in excess of 12 miles from the outer
limits of the territorial sea over which the coastal state exercises a protective jurisdiction to prevent the
punish infringements of its customs, fiscal immigration or sanitary regulations (1982 Convention on the
Sea)
Exclusive Economic Zone
It is that expanse of the sea extending 200 nautical miles from the coast or baselines of the state
over which it asserts exclusive jurisdiction and ownership over all living and non-living resources found
therein.
Contiguous Exclusive Economic Zone
12 nautical miles from territorial sea 200 nautical miles from the baseline
Not a territory but state may exercise limited
jurisdiction over it to prevent infringement of
customs, fiscal immigration or sanitary regulations
Exclusive for economic
Continental Shelf
It is the seabed 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 nautical miles from the baselines from which the breadth of the territorial sea is
measured where the outer edge of the continental margin does not extend up to that distance (Art. 76,
par.1, UNCLOS)
High Seas
It is treated as RES COMMUNES or RE NULLIUS, and thus, are not territory of a particular state.
These are the waters which do not constitute the internal waters, archipelagic waters, territorial sea and
exclusive economic zone of a state. They are beyond the jurisdiction and sovereign rights of States.
Res Nullius
Res Communes
Freedom of Navigation
Flag State Flag Navigation
Refers to the authority under which a country
exercises regulatory control over commercial
vessels which is registered under its flag
A vessel which is registered in a foreign country for
convenience
The flag is different from the nationality of the
owner
THE PHILIPPINE TERRITORY
Philippine Baseline Laws
1. Normal Baseline Method
a. Drawn from the low water mark of the coast, to the breadth claimed, following its
sinuousness and curvatures but excluding the internal waters in the bays and gulfs

2. Straight Baseline Method
a. Joining appropriate points may be employed in drawing the baseline from which the
breadth of the territorial seas is measured. (Art. 7 UNCLOS)
Baseline Law
1961 RA. 7046
5446- overlapping zone on Malaysia
9522- They ceded to own some islands which are not suitable for economic zone
Tomas Cloma
o A Filipino adventurer and fishing magnate who discovered Kalayaan Island
o 1956 Cloma declared separate government from the Philippines
o Cloma sold it to the Philippines during the Marcos Regime for P1 only
Treaty of Paris
o For $20M, Spain sold the Philippines to US on December 10, 1898
Treaty of Washington
o For $100K for the acquisition of the islands not included in the Treaty of Paris Nov. 7,
1900
US- Britain
o January 2, 1930 for the Acquisition of the islands in the South (Sulu, tawi-tawi)
Marcos Issued PD 1956 creating kalayaan as a province of Palawan
Treaty of Annexation
o Making the Hawaii part of the US

3. Government
Defined as the agency through which the will of the state is formulated, realized and expressed.
In International law, it is the instrumentality that represents the state in its dealings with other
international persons. The state can assert rights, and is held responsible, through its government.
De Jure- A government in accordance of the law
De Facto- A government not in accordance with the law
FORMS OF GOVERNMENT
A form of Government, or form of state of governance, refers to the set of political institutions
by which a government of a state is organized in order to exert its powers over a house in the congress
body politic. Synonyms include regime type and system of government.
1. Democracy (Ruled by Majority)
It is best described by Abraham Lincoln as a form of government that is of the people, by the
people and for the people. It is a form of government, which allows people to choose the
representatives amongst themselves who are given the rights to form the government. A democracy
usually has a standard Constitution that confers certain rights of freedom and expression (and many
other rights) to its citizens and expects certain duties from them and a uniform law to govern the entire
nation.
Direct or Pure Democracy
One in which the will of the State is formulated or expressed directly and immediately through
the people in a mass meeting or primary assembly.
Indirect, Representative or Republican Democracy
One in which the will of the state is formulated and expressed through the agency of a relatively
small and select body of persons chosen by the people to act as their representatives.
2. Aristocracy
One in which political power is exercised by a few privileged class

3. Monarchy
Monarchies are one of the oldest political system known, developing from tribal structure with
one person the absolute ruler
Monarchy implies rule or the power of government in the hands of a individual who has
inherited the role and expects to bequeath it to the descendants. Currently there exist 31 monarchs
reigning over 45 extant sovereign monarchies in the world, 16 of which are Commonwealth Realms that
formally recognize Queen Elizabeth II as their head of state and Prince Charles as heir.
Kinds of Monarchy:
Absolute monarchy- one in which the ruler by divine right
Limited monarchy- one in which the ruler rules in accordance with the constitution

4. Presidential
One in which the state makes the executive constitutionally independent of the legislature as
regards his policies and acts
5. Parliamentary
One in which the state confers upon the legislature the power to terminate the tenure of office
of the real executive
6. Unitary
One in which the control of national and local is exercised by the central or national government
7. Federal
One in which the powers of government are divided between 2 sets of organs, one for national
affairs and the other for local affairs.
The politics of the Philippines takes place in an organized framework of presidential,
representative and democratic republic whereby the president is both the head of state and the
head of government within a pluriform multiparty system. This system revolves around 3
branches: the legislative branch (law-making body), the executive branch (law- enforcing body)
and the judicial branch (the law- interpreting body).

Executive power is exercised by the government under the leadership of the president
Legislative power is vested both the government and the 2 chamber congress- The Senate (the
upper chamber) and the House of Representative (the lower chamber
Judicial power is vested in the courts with the Supreme Court of the Philippines as the highest
judicial body
Despotism
It is the form of rule wherein a single leader rulers the entire population and all his or her
subjects are considered to be his or her slaves. The Pharaoh of Egypt is an example of this sort of rule. In
case of contemporary contention, the term implies tyrannical rule.
Dictatorship
Implies rule by an individual who has complete power over the country. Although there have
been several definitions of dictatorship, broadly all the various types and forms of dictatorship tend to
exhibit totalitarian characteristics. When the power of the government does not come from the people,
is unlimited and tends to expand their scope of powers to control every aspect of peoples life, the form
can be termed a dictatorship.
Oligarchy (Rule by Few)
It is the form of government where a small group has the power to govern or rule. Aristotle had
coined the term oligarchy as synonym for rule by the rich (which is known as plutocracy) oligarchy now
simply refers to rule of the privileged few.
Plutocracy
Refers to form of government, which is run by the rich. A plutocracy is a form of government,
which is controlled by a group of extremely wealthy individuals. In todays world many political
analyistaruge there are still some siturations in which private corporations and wealthy individuals have
a strong hold over the government, which can be synonymous with plutocracy
Communist Government
It is a form of Government in which the state is governed by a one-party system. This form of
government works on the lines of Marxism- Leninism. Thus, the state and the communist party claim to
act in accordance to the wishes of the working class or the peasantry. Although a communist
government claims to implement democratic dictatorship of the proletariat, it tends to incline towards
the abolition of the state and implementation of communism.
RECOGNITION
Definition
It is an act by which a state acknowledges the existence of another state, government or
belligerent community and indicates willingness to deal with the entity as such under the rules of
international law.
DOCTRINES ON RECOGNITION OF GOVERNMENT
1. Wilson/ Tobar Doctrine
Precludes recognition of government established by revolution, civil war, coup dtat or other
forms of internal violence until the freely elected representative of the people have organized a
constitutional government
2. Estrada Doctrine
Dealing or not dealing with the government established through political upheaval is not a
judgement on the legitimacy of the said government (Mexican Minister Genaro Estrada)
3. Stimson Doctrine
Precludes recognition of any government established as a result of external aggression (US Sec of
State Henry Lewis Stimson)
EFFECTS OF RECOGNITION OF A STATE OR GOVERNMENT
1. Diplomatic relations
2. Right to sue in courts of recognizing state
3. Right to possession of properties of predecessor on the recognizing state
4. All acts of the recognized state or government are validated retroactively; preventing the
recognizing state from passing upon their legality in its own courts. (Act of State Doctrine)
PRACTICAL CRITERIA FOR RECOGNITION OF A GOVERNMENT
1. it has control of the administrative machinery of the state with popular acquiescence; and
2. It is willing and able to comply with its international obligations
KINDS OF RECOGNITION OF GOVERNMENT
De Jure Recognition De Facto Recognition
Relatively permanent Provisional(duration of armed struggle)
Vests title to properties of government abroad Does NOT vest title to properties of government
abroad
Brings about full diplomatic relations Limited to certain juridical relations
4. Sovereignty
Supreme and uncontrollable power inherent in a State by which that State is governed.
The government possesses full control over its own affairs within a territorial geographic area or
limit
CASE: North cotabato vs. GRP gr no. 183591

FACTS: The Memorandum of Agreement on the Ancestral Domain (MOA-AD) brought about by the
Government of the republic of the Philippines (GRP) and the Moro Islamic Liberation Front (MILF) as an
aspect of Tripoli Agreement of Peace in 2001 is scheduled to be signed in Kuala Lumpur, Malaysia.
This agreement was petitioned by the Province of North Cotabato for Mandamus and Prohibition with
Prayer for the Issuance of Writ of Preliminary Injunction and Temporary Restraining Order. The
agreement mentions "Bangsamoro Juridical Entity" (BJE) to which it grants the authority and jurisdiction
over the Ancestral Domain and Ancestral Lands of the Bangsamoro; authority and jurisdiction over all
natural resources within internal waters. The agreement is composed of two local statutes: the organic
act for autonomous region in Muslim Mindanao and the Indigenous Peoples Rights Act (IPRA).

ISSUE: Whether or not the GRP violated the Constitutional and statutory provisions on public
consultation and the right to information when they negotiated and initiated the MOA-AD and Whether
or not the MOA-AD brought by the GRP and MILF is constitutional

HELD:GRP violated the Constitutional and statutory provisions on public consultation and the right to
information when they negotiated and initiated the MOA-AD and it are unconstitutional because it is
contrary to law and the provisions of the constitution thereof.

REASONING: The GRP is required by this law to carry out public consultations on both national and local
levels to build consensus for peace agenda and process and the mobilization and facilitation of peoples
participation in the peace process.

Sec. 7. The right of people on matters of public concern shall be recognized, access to official records
and to documents and papers pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development shall be afforded the citizen, subject to
such limitations as may be provided by law.

Article II
Sec. 28. Subject to reasonable conditions prescribed by law , that state adopts and implements a policy
of full public disclosure of all its transactions involving public interest.

LGC (1991), require all national agencies and officers to conduct periodic consultations. No project or
program be implemented unless such consultations are complied with and approval mus be obtained.

ARTICLE XVII (AMENDMENTS OR REVISIONS)

Section 1. Any amendment to, or revision of, this Constitution may be proposed by:
1. The Congress, upon a vote of three-fourths of all its Members; or
2. A constitutional convention.

Section 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid
when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days
nor later than ninety days after the approval of such amendment or revision.

MOA-AD states that all provisions thereof which cannot be reconciled with the present constitution and
laws shall come into force upon signing of a comprehensive compact and upon effecting the necessary
changes to the legal framework. The presidents authority is limited to proposing constitutional
amendments. She cannot guarantee to any third party that the required amendments will eventually be
put in place nor even be submitted to a plebiscite. MOA-AD itself presents the need to amend therein.

KINDS OF SOVEREIGNTY:
1. Internal Supreme Authority of a state within its territory (Police Power)
2. External- Does not have any force in foreign territory

Q: Is Sovereign absolute?
A: In domestic sphere- YES!
In International sphere- NO!

CASE:Tanadavs Angara, 272 SCRA 18, May 2, 1997

While sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level,
it is however subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly or
impliedly, as a member of the family of nations
By the doctrine of incorporation, the country is bound by generally accepted principles of international
law, which are considered to be automatically part of our own laws. One of the oldest and most
fundamental rules in international law is pactasuntservanda international agreements must be
performed in good faith.
"A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the
parties . . . A state which has contracted valid international obligations is bound to make in its
legislations such modifications as may be necessary to ensure the fulfillment of the obligations
undertaken."
By their voluntary act, nations may surrender some aspects of their state power in exchange for greater
benefits granted by or derived from a convention or pact. After all, states, like individuals, live with
coequals, and in pursuit of mutually covenanted objectives and benefits, they also commonly agree to
limit the exercise of their otherwise absolute rights.
The sovereignty of a state therefore cannot in fact and in reality be considered absolute. Certain
restrictions enter into the picture: (1) limitations imposed by the very nature of membership in the
family of nations and (2) limitations imposed by treaty stipulations. As aptly put by John F. Kennedy,
"Today, no nation can build its destiny alone. The age of self-sufficient nationalism is over.
Thus, when the Philippines joined the United Nations as one of its 51 charter members, it consented to
restrict its sovereign rights under the "concept of sovereignty as auto-limitation."

The Philippines has effectively agreed to limit the exercise of its sovereign powers of taxation, eminent
domain and police power. The underlying consideration in this partial surrender of sovereignty is the
reciprocal commitment of the other contracting states in granting the same privilege and immunities to
the Philippines, its officials and its citizens.
The point is that, as shown by the foregoing treaties, a portion of sovereignty may be waived without
violating the Constitution, based on the rationale that the Philippines "adopts the generally accepted
principles of international law as part of the law of the land and adheres to the policy of . . . cooperation
and amity with all nations."
EFFECT OF CHANGE OF SOVEREIGNTY
The effect is that the political laws of the former sovereign are merely suspended but
abandoned. As they regulate the relations between the ruler and the rules, these laws fall to the ground
ipso facto unless they are retained or re-enacted by positive act of the sovereign.
Non- political law, by contrast, continues in operation, for the reason also that they regulate
private relations only, unless they are changed by the new sovereign or are contrary to its institutions.
RECOGNITION OF STATES
Theories on Recognition of States
1. Declaratory School
a. Merely affirms an existing fact like the possession by the state of the essential elements
b. Discretionary and political
2. Constitutive School
a. It is the act of recognition that constitutes the entity into an international person
b. Compulsory and legal
c. May be compelled once the elements of a state are established
BELLIGERANCY
The status of parties legally at war ( e.i. between nations or if in civil war, government treats
other as sovereign power)
Effects of belligerency: relations of warring parties determined by laws of war, granting of
belligerency rights. Neutral nations abstain from taking sides.
CONDITIONS RECOGNITION OF BELLIGERENCY
1. There must be an organized civil government directing the rebel forces;
2. The rebels must occupy a substantial portion of the territory of the state;
3. The conflict between the legitimate government and the rebels must be serious,
making the outcome uncertain; and
4. The rebels must be willing and able to observe the laws of war.

EFFECTS OF RECOGNITION OF BELLIGERENCY
1. Responsibility for the acts of rebels resulting to inquiry to nationals of recognizing state shall be
shifted to rebel government
2. The legitimate government recognizing the rebels as belligerents shall observe laws or customs
of war in conducting hostilities
3. Third states recognizing belligerency should maintain neutrality

Recognition is only provisional and only for purposes of hostilities

The Principle of State Continuity

It means that the legal existence of a state continues notwithstanding changes in the size of its
population or territory or in the form or leadership of its government as long as the four essential
elements of statehood are retained.
Creation of New State
I. By Revolution (Philippines)
II. By peaceful acquisition of independence(Malaysia)
III. By unification of Several (Italy)
IV. By Secession (Bangladesh )
V. By Agreement (Netherlands)
VI. By attainment of Civilization (Japan)
Extinction of the State
I. Overthrow of government resulting to anarchy (Yugoslavia)
II. Emigration on masses of its population (Timbuktu)
III. Annexation (Vietnam)
IV. Merger or Unification (Germany)
V. Dismemberment (Yugoslavia)
VI. Dissolution
VII. Partial Loss of Independence (Hawaii)
FUNDAMENTAL RIGHTS OF STATES
1. Right to Existence and Self-Defense
a. Most comprehensive as all the rights of state flow from it
b. State may take measures including the use of force as may be necessary to counteract
any danger to its existence
Aggression
The use of armed force by a state against the sovereignty, territorial integrity or political
independence of another State or in any other manner inconsistent with the Charter of the United
Nations as set out in this definition
ACTS OF AGRESSION
I. Invasion or attack of a state
II. Bombardment of state
III. Blockade of ports or coasts
IV. Use of armed forces within a state in contravention to any agreement
V. Action of state in allowing its territory for an act of aggression against a third state
VI. Sending of armed groups or mercenaries which carry an act of armed force against another
state
REQUISITE FOR PROPER EXERCISE OF RIGHT OF SELF-DEFENSE
a. Armed attack
b. Self-defensive action taken by the attacked state must be reported immediately to the Security
Council
c. Such action shall not in any way affect the right of the Security Council to take at any time action
as it deems necessary to maintain or restore international peace and security
Collective Self- Defense
Right of state to come to the defense of a state whose situation meets the condition of
legitimate individual self-defense under the UN Charter

Abatement Doctrine
When conditions in the territory of a neighbouring state might result in anarchy of disorder and
the authorities of the state are unable to restore order and prevents spinning over the territory of
another the latter has the duty to intervene even by armed force to restore order in the border and to
end the chaos.
2. Right of Sovereignty and Independence
Sovereignty
It is the totality of the powers, legal competence, and privileges arising from customary
international law, and not dependent on the consent of another state.

Independence
Means freedom from control by other state or group of state and not freedom from the
restrictions that are binding on all states forming the family of nations; carries with it by necessary
implication the correlative duty if non- intervention

Intervention
An act by which a state interferes with the domestic or foreign affairs of another state through
the employment of force or threat which may be physical, political or economic.
WHEN INTERVENTION SANCTIONED:
1. As an act of self-defense
2. When decreed by the Security Council as a preventive or enforcement action for the
maintenance of international peace and security
3. When such action is agreed upon in a treaty
4. When requested from fellow states or from the UN by the parties to a dispute or a state beset
by rebellion
Drago Doctrine
Intervention not allowed for the purpose of making a state pay its public debts

3. Right of Equality
Every state is entitled to the same protection and respect as are available to other states under the
rules of international law.

Doctrine of State Immunity
As a consequence of the independence, territorial supremacy and equality, a state enjoys immunity
from the exercise of jurisdiction (legislative, executive or juridical) by another state, unless it has
given consent, waives its immunity, or voluntarily submitted to the jurisdiction of the court
concerned.
THE STATE IS DEEMED TO HAVE WAIVED ITS IMMUNITY:
A. When it gives consent at the time the proceeding is instituted
B. When it takes steps relating to the merits of the cases before invoking immunity
C. When by treaty or contract it had previously given consent
D. When by law or regulation in force at the time complaint arose it has indicated that it will
consent to the institution of the proceedings

4. Right to Territorial Integrity and Jurisdiction
The territory of a state usually consists of the terrestrial domain, maritime and fluvial domain
and the aerial domain
5. Right of Legation
It is the right of the state to maintain diplomatic relations with other states. The right to send
diplomatic representatives is known as the active right of legation. The right to receive diplomatic
representatives is known as the passive right of legation.
AGENTS OF DIPLOMATIC INTERCOURSE
1. Head of state
Embodiment of and represents, the sovereignty of the state
Enjoys the right to special protection for his physical safety and the preservation of his honour
and reputation
His quarters, archives, property and means of transportation are inviolate
Principle of Extraterritoriality

2. Foreign Secretary or Minister
3. Members of Diplomatic Service
4. Special Diplomatic Agents appointed by Head of the State
5. Envoys Ceremonial
FUNCTIONS OF DIPLOMATIC MISSIONS
1. Representing sending state in receiving state
2. Protecting in receiving state interests of sending estate and its nationals
3. Negotiating with government of receiving state
4. Promoting friendly relations between sending and receiving states and developing their
economic, cultural and scientific relations
5. Ascertaining by all receiving state and reporting thereon to government of sending state
6. IN some cases, representing friendly governments at their request
Agreation
Process in appointment of diplomatic envoy where state resort to an informal inquiry(enquiry)
as to the acceptability of a particular envoy, to which the receiving state responds with an informal
conformity (agreement)
Letre De Creance (Letter of Credence)
With the name, rank, and general character of his mission, and a request for a favourable
reception and full credence
KINDS OF CONSULS
CONSULES MISSI CONSULES ELECTI
Professional or career consuls who are required to
devote their full time to discharge their duties
Perform consular functions only in addition to
their regular callings
Nationals of sending state May or not be nationals of the sending state

Ranks
1. Consul- general- heads several consular districts, or one exceptionally large consular districts
2. Consul- takes charge of a small district or town port
3. Vice- consul- assists the consul
4. Consular agent- usually entrusted
PRIVELEGES AND IMMUNITIES ACCORDED TO DIPLOMATIC ENVOY
1. Inviolability of their correspondence, archives and other documents
2. Freedom of movement and travel
3. Immunity from jurisdiction for acts performed in official capacity
4. Exemption from certain taxes and customs duties

Immunities and privileges are also available to members of the consular post their
families and their private staff
Waiver of immunities may be by the appointing state
CASE: Liang vs. People, 323 SCRA 652 (2000)
FACTS: Petitioner is an economist for ADB who was charged by the Metropolitan Trial Court of
Mandaluyong city for allegedly uttering defamatory words against her fellow worker with two counts of
grave oral defamation. MeTC judge then received an office of protocol from the Department of Foreign
Affairs, stating that petitioner is covered by immunity from legal process under section 45 of the
agreement bet ADB and the government. MeTC judge, without notice, dismissed the two criminal cases.
Prosecution filed writ of mandamus and certiorari and ordered the MeTC to enforce the warrant of
arrest.

ISSUES: Whether or not the petitioner is covered by immunity under the agreement and that no
preliminary investigation was held before the criminal cases were filed in court.

RULING: He is not covered by immunity because the commission of a crime is part of the performance of
official duty. Courts cannot blindly adhere and take on its face the communication from the DFA that a
certain person is covered by immunity. That a person is covered by immunity is preliminary. Due process
is right of the accused as much as the prosecution.

Slandering a person is not covered by the agreement because our laws do not allow the commission of a
crime such as defamation in the name of official duty. Under Vienna convention on Diplomatic
Relations, commission of a crime is not part of official duty.

On the contention that there was no preliminary investigation conducted, suffice it to say that
preliminary investigation is not a matter of right in cases cognizable by the MeTC such as the one at bar.
Being purely a statutory right, preliminary investigation may be invoked only when specifically granted
by law. The rule on criminal procedure is clear than no preliminary investigation is required in cases
falling within the jurisdiction of the MeTC. Besides, the absence of preliminary investigation does not
affect the courts jurisdiction nor does it impair the validity of the information or otherwise render it
defective.
Extraterritoriality
Applies only to PERSONS and is based on treaty or convention credited because of rise of
nationalism and sovereign equality of states.
Exterritoriality
Exception of the PERSONS AND PROPERTY from local jurisdiction on basis of international
customs.
Treaty
An international agreement concluded between states in written form and governed by
international law whether embodied in a single instrument or in two or more related instruments. (art. 2
ViennaConvention on the Law of Treaties, 1969)
Taiwan cannot enter into a treaty
REQUISITES OF A VALID TREATY
1. Entered into by parties having treaty-making capacity
2. Through their authorized organs or representatives
3. Without attendance of duress, fraud, mistake, or other vices of consent
4. Lawful subject matter and object
5. Ratification in accordance with their respective constitutional processes
CASE: Bayan vs Zamora G. R. No. 138570 Oct. 10, 2000
A treaty, as defined by the Vienna Convention on the Law of Treaties, is an international
instrument concluded between States in written form and governed by international law, whether
embodied in a single instrument or in two or more related instruments, and whatever its particular
designation.
Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases,
troops or facilities, should apply in the instant case.

The 1987 Philippine Constitution contains two provisions requiring the concurrence of the Senate
on treaties or international agreements. Sec. 21 Art. VII, which respondent invokes reads: No treaty or
international agreement shall be valid and effective unless concurred in by at least 2/3 of all the
Members of the Senate. Sec. 25 Art. XVIII provides: After the expiration in 1991 of the Agreement
between the RP and the US concerning Military Bases, foreign military bases, troops or facilities shall not
be allowed in the Philippines except under a treaty duly concurred in 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 Senate by the other contracting state.

The first cited provision applies to any form of treaties and international agreements in general
with a wide variety of subject matter. All treaties and international agreements entered into by the
Philippines, regardless of subject matter, coverage or particular designation requires the concurrence of
the Senate to be valid and effective.

In contrast, the second cited provision applies to treaties which involve presence of foreign
military bases, troops and facilities in the Philippines. Both constitutional provisions share some
common ground. The fact that the President referred the VFA to the Senate under Sec. 21 Art. VII, and
that Senate extended its concurrence under the same provision is immaterial.
Q: VFA-concurred in by our senate but not by the US Senate
A: VFA still binding on its/ is still a binding treaty because it is not our business to dwell into the
domestic law of the other contracting party; we are satisfied with the Senators pronouncement that the
US will recognize it.
Attentant Clause
Assassination of head of the State or any member of his family is not regarded as political
offence for purpose of extradition. Also applies to genocide
STEPS IN TREATY MAKING PROCESS
1. Negotiation
Discussion of the provisions of the proposed treaty, undertaken by the representatives of the
contracting parties who are provided with credentials known as full powers of PLENIS POUVIORS
2. Signature
Primarily intended as a means of authenticating the instrument and symbolizing the good faith
of the contracting parties.
Practice Aternat
Arrangement under which each negotiator is allowed to sign first on the copy of the treaty which he
will bring home to his own country, the purpose being to preserve the formal appearance of equality
among the contracting states and to avoid delicate questions of precedence among signatories.
3. Ratification
Act by which the state formally accepts the provisions of the treaty concluded by its representatives.
4. Exchange of Instruments of ratifications
5. Registration with the UN

Concordat
A treaty or agreement between ecclesiastical and civil powers to regulate the relations between
the church and the state in those matters which, in some respect are under the jurisdiction of both.
DOCTRINES IN TREATIES
Jus Cogens
A jus cogens or peremptory is a norm which States cannot derogate or deviate from in their
agreements. It is a mandatory norm and stands on a higher category than a jus dispotivum norm which
States can set aside or modify by agreement
A fiduciary Theory of Jus Cogens Evan J. Criddle and Evan Fox Decent
CASE: IsabelitaVinuya vs. Executive Secretary Romulo
Held:
Certain types of cases often have been found to present political questions. One such category involves
questions of foreign relations. It is well-established that "[t]he conduct of the foreign relations of our
government is committed by the Constitution to the executive and legislative--'the political'--
departments of the government, and the propriety of what may be done in the exercise of this political
power is not subject to judicial inquiry or decision." The US Supreme Court has further cautioned that
decisions relating to foreign policy are delicate, complex, and involve large elements of prophecy. They
are and should be undertaken only by those directly responsible to the people whose welfare they
advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities
nor responsibility.

PactaSuntServanda
It simply means that treaties must be observed in good faith despite hardship on the contracting
state, such as conflicts between the treaty and its constitutions or prejudice to the national interst as a
result of the operation of the treaty.
As a general rule, a party must comply with the provisions of a treaty and cannot ignore or
modify it without the consent of the other signatory. Willful disregard or violation of treaties without
just cause is frowned upon by the society of nations.

Clausula Rebus Sic Stantibus
1. It applies only to treaties of indefinite duration
2. The vital change claimed as jurisdiction for the discontinuance of the treaty must have been
unforeseen or unforeseeable and must not have been caused by the party invoking the
doctrine
3. The doctrine must be invoked within a reasonbale time from the occurrence of the change
asserted.
4. The doctrine cannot operate retroactively upon the provisions of the treaty executed prior
to the change in circumstance (Salonga and Yap, 310)

CASE: Fisheries jurisdiction Case- UK vs. Iceland
Iceland claims that its agreement with the UK not to extend its fishereies jurisdiction was no
longer binding due to fundamental change of circumstances
Held:
For this to be a ground for invoking the termination of a treaty, it should have resulted in a
radical transformation of the extent of the obligations still to be performed. The change must have
increased the burden of the obligations to be executed to the extent of rendering the performance
something essentially different from that originally undertaken.
This is not the case here, Iceland cannot validly invoke Rebus Sic Stantibus in claiming the
termination of the treaty.

Most Favored Nation Clause
Pledge made by a contracting party to a treaty to grant to other party treatment not less
favorable than that which had been given or may be granted to the most favored among parties.

TERMINATION OF TREATIES
1. Expiration of term
2. Accomplishment of purpose
3. Impossibility of performance
4. Loss of subject matter
5. Desuetude
o Desistance of parties by express mutual consent or exercise of right of renunciation
when allowed.
6. Extinction of one parties; if treaty is bipartner
7. Novation
8. Occurrence of vital change of circumstance
9. Outbreak of war
10. Voidance of treaty because of:
a. Defect in constitution
b. Violation of its provision by one party
c. Incompatibility with International law
11. Application of the doctrine of the Rebus Sic Stantibus
12. The doctrine of Jus Cogens (or the emergence of a new preemptory norm of general
international law which renders void any existing treaty conflicting with such norm)

Protocol de Cloture
An instrument which records the winding up of the proceedings of a diplomatic conference and
usually includes a reproduction of the contents of treaties, conventions, recommendations and other
acts agreed upon and signed by the plenipotentiaries attending the conference. It is not the treaty and
does not require the concurrence of the senate. (Tanada vs. Angara)

NATIONALITY AND STATELESSNESS

Nationality
Membership on a political community with all its concomitant righrs and obligations. It is the tie
that binds the individual to his state from which he can claim protection and whose law he is obliged to
obey

Citizenship
Membership in a political community whci is personal and more or less permanent in character

Doctrine of Effective Nationality
Expressed in Art. 5 of the Hague Convention of 1930 on the Conflict of Nationality Laws that a
person having more than one nationality shall be treated as if he had only one- either the nationality of
the country in which he is habitually and principally resident or the nationality of the country with chich
the circumstances he appears to be in face most closely connected.

CASE: Frivaldo v. Comelec
That Nottebohm case is not relevant to the petition before us because it dealt with a conflict
between the nationality laws of two states as decided by a third state. No third state is involved in the
case at bar; in fact, even the United States is not actively claiming Frivaldo as its national. The sole
question presented to us is whether or not Frivaldo is a citizen of the Philippines under our own laws,
regardless of other nationality laws. We can decide this question alone as sovereign of our own
territory, conformably to Section 1 of the said Convention providing that "it is for each State to
determine under its law who are its nationals."
Statelessness
Condition or statues of an individual who is born without any nationality or who loses his
nationality without retaining or acquiring another
De Jure Statelessness
It is where the exists no recognized state in respect of which the subject has a legally
meritorious basis to claim nationality
De Facto Statelessness
It is where the subject may have a legally meritorious claim but is precluded from asserting it
because of practical considerations such as cost, circumstances of civil disorder, or the fear of
persecution
ALIENS
Definition
It is a person in a country who is not a citizen of the country
Treatment of Aliens
Flowing from its right to existence and as an attribute of sovereignty, no state is under
obligation to admit aliens. The state can determine in what cases and under what conditions it may
admit aliens.
1. The state has the Right to EXPEL aliens from its territory through:
a. Deportation
Expulsion of alien considered undesirable by the local state, usually not
necessarily to his own state
b. Reconduction
Forcible conveying of aliens back to their home state without any formalities

2. The alien must accept the institutions of local states as he finds them.
Doctrine of State Responsibility
State may be held liable for injuries and damages sustained by the alien while in the territory of
the state provided:
1. The act or omission constitutes an international delinquency
2. The act or omission is directly or indirectly imputable to the state
3. Injury to the claimant state indirectly because of damage to its national
Calvo Clause
It is a stipulation by virtue of which an alien waives or restricts his right to appeal to its own
state in connection with any claim arising from a contract with foreign state and limits himself to the
remedies available under the law of the state.
Drago Doctrine
In 1902, Great Britiain, Italy and Germany established a bloackade against Venezuela in order to
enforce certain contractual and other claims against it, leading Foreign Minister Jose Maria Drago of
Argentina to formulate the doctrine that a public debt cannot give rise to the right of armed
intervention.
This principle was later adopted in the Second Hague Conference, but subject to the
qualitfication that the debtor state should not refuse or neglect to reply to an offer of arbitration or
after accepting the offer, prevent any compromise from being upon, or after the arbitration, fail to
submit to the award. This qualification is known as the PORTER RESOLUTION
Refugees
A person who, owing to a well-foundedfear of being persecuted for treasons of race, religion,
nationality, membership of a particular social group or political opinion, is outside the country of his
nationality, and is unable or wing to such fear, is unwilling to avail himself of the protection of that
country; or who, not having a nationality and being outside the country of his former, habitual
residence, is unable or owing to such fear, is unwilling to return to it. (Convention Relating to the Status
of Refugees, Art.1 a(2) ).
Non- refoulment
Prohibits state to return or expel a refugee to the territory where he escaped because his life or
freedom is threatened. The State is under obligation to grant temporary asylum. (Refugee Convention of
1951)
Right of Asylum
Refuge in another state. Every foreign state can be at least a provisional asylum for any
individual, who being persecuted in his home State, goes to another state, in the absence of any
international treaty stipulating the contrary, no state is, by international laws, obliged to refuse
admission into its territory to such a fugitive or in case he has been admitted, to expel him or deliver him
up to the prosecuting state.
The right of asylum is not a right possessed by an alien to demand that a state protect him and
grant him asylum. At present, it is just a PRIVILEGE granted by a state to allow an alien escaping from
persecution of his country for political reasons to remain and to grant him asylum.

Diplomatic Asylum
Refugee in another state for political offense, danger to life or no assurance of due process
Extradition
The removal of an accused from the Philippines 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 any 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 (P.D. 1069, Sec 2 (a)).
Specialty and Double criminality:
Requirements for the exercise of extradition:
1. The Principle of speciality requires that the requesting state must specify the crime under the
extradition treaty for which the fugitive or accused is sought, and that he is to be tried only for
the offense specified in the treaty.
2. The principle of double criminality requires that an offense must be punishable under the law of
both the extraditing state and the requesting state for the accused to be extradited.

GENERAL PRINCIPLES IN EXTRADITION
1. Basis: a TREATY based on consent of the parties
2. PRINCIPLE OF SPECIALTY
A fugitive who is extradited may be tried only for the crime specified in the request for
extradition and included in the list of offenses in the treaty
Non- List Type of Treaty
o Offenses punishable under the laws of both states by imprisonment of 1 year or
more are included among the extraditable offenses(less than 1 year, cant
extradite)
3. Any person may be extradited, he NEED NOT BE A CITIZEN OF THE DEMANDING STATE
4. Political and Religious offenders are GENERALLY NOT SUBJECT to extradition
5. IN the absence of special agreement, offense must have been committed within the TERRITORY
OR AGAINST THE INTEREST OF THE DEMANDING STATE.
CASE: Wright vs. CA
Australia and the Government of the Philippines in the suppression of crime, entered into a Treaty of
Extradition on the 7th of March 1988. The said treaty was ratified in accordance with the provisions of
Section 21, Article VII of the 1987 Constitution in a Resolution adopted by the Senate on September 10,
1990 and became effective 30 days after both States notified each other in writing that the respective
requirements for the entry into force of the Treaty have been complied with. Petitioner contends that
the provision of the Treaty giving retroactive effect to the extradition treaty amounts to an ex post facto
law which violates Section 21 of Article VI of the Constitution.

ISSUE: Can an extradition treaty be applied retroactively?

HELD:
YES, Applying the constitutional principle, the Court has held that the prohibition applies only to criminal
legislation which affects the substantial rights of the accused. This being so, there is no absolutely no
merit in petitioner's contention that the ruling of the lower court sustaining the Treaty's retroactive
application with respect to offenses committed prior to the Treaty's coming into force and effect,
violates the Constitutional prohibition against ex post facto laws. As the Court of Appeals correctly
concluded, the Treaty is neither a piece of criminal legislation nor a criminal procedural statute. It
merely provides for the extradition of persons wanted for prosecution of an offense or a crime which
offense or crime was already committed or consummated at the time the treaty was ratified.

CASE: USA vs. Purganan
The ultimate purpose of extradition proceedings in court is only to determine whether the extradition
request complies with the Extradition Treaty, and whether the person sought is extraditable.
The proceedings are intended merely to assist the requesting state in bringing the accused -- or the
fugitive who has illegally escaped -- back to its territory, so that the criminal process may proceed
therein.
By entering into an extradition treaty, the Philippines is deemed to have reposed its trust in the
reliability or soundness of the legal and judicial system of its treaty partner, as well as in the ability and
the willingness of the latter to grant basic rights to the accused in the pending criminal case therein.
Extradition proceedings are not equivalent to a criminal case in which guilt or innocence is determined.
Consequently, an extradition case is not one in which the constitutional rights of the accused are
necessarily available. It is more akin, if at all, to a courts request to police authorities for the arrest of
the accused who is at large or has escaped detention or jumped bail. Having once escaped the
jurisdiction of the requesting state, the reasonable prima facie presumption is that the person would
escape again if given the opportunity.
General Rule:
Prospective extraditees not entitled to notice and hearing before warrants for their arrest can
be issued to the right to bail and provisional liberty while the extradition proceedings are pending
Exception:
1. Once bail is granted, he will not be flight risk or danger to community
2. There exist special, humanitarian, and compelling circumstances
Principles on Extradition:
1. No State is obliged to to extradite unless there is a treaty
2. Differences in legal system can be an obstacle to interpretation of what the crime is
3. Religious and political offenses are not extraditable

Procedure is normally through diplomatic channels (how extradition rules can be bypassed: US vs.
Alvarez- Machain; how due process requirements work in an extradition case: Secretary of Justice
vs. Lantion; USA vs. Purganan and Crespo)
CASE: Hong Kong v. Olalia G.R. No. 153675
Facts:
The Philippines and Hong Kong signed an Agreement for the Surrender of Accused and Convicted
Persons.
Private respondent Muoz was charged before the Hong Kong Court. Department of Justice (DOJ)
received from the Hong Kong Department of Justice a request for the provisional arrest of private
respondent
Muoz. The DOJ then forwarded the request to the National Bureau of Investigation (NBI) which, in
turn, filed with the RTC of Manila, Branch 19 an application for the provisional arrest of private
respondent. The NBI agents arrested and detained him. Muoz filed a petition for bail which was denied
by Judge Bernardo, Jr. holding that there is no Philippine law granting bail in extradition cases and that
private respondent is a high flight risk. After Judge Bernardo, Jr. inhibited himself from further hearing
the case, it was then raffled off to Branch 8 presided by respondent judge. Private respondent filed a
motion for reconsideration of the Order denying his application for bail and this was granted by
respondent judge.

ISSUE Whether or not the trial court committed grave abuse of discretion amounting to lack or excess of
jurisdiction in allowing private respondent to bail?

HELD
No, the trial court did not commit grave abuse of discretion amounting to lack or excess of
jurisdiction in allowing private respondent to bail.
Accordingly, although the time-honored principle of pactasuntservanda demands that the
Philippines honor its obligations under the Extradition Treaty it entered into with the Hong Kong Special
Administrative Region it does not necessarily mean that in keeping with its treaty obligations, the
Philippines should diminish a potential extraditees rights to life, liberty, and due process guaranteed by
the Constitution. More so, where these rights are guaranteed, not only by our Constitution, but also by
international conventions, particularly the Universal Declaration of Human Rights, to which the
Philippines is a party.
We should not, therefore, deprive an extraditee of his right to apply for bail, provided that a
certain standard for the grant is satisfactorily met. In his Separate Opinion in Purganan, then Associate
Justice, now Chief Justice Reynato S. Puno, proposed that a new standard which he termed clear and
convincing evidence should be used in granting bail in extradition cases. According to him, this standard
should be lower than proof beyond reasonable doubt but higher than preponderance of evidence. The
potential extraditee must prove by clear and convincing evidence that he is not a flight risk and will
abide with all the orders and processes of the extradition court. In this case, there is no showing that
private respondent presented evidence to show that he is not a flight risk. Consequently, this case
should be remanded to the trial court to determine whether private respondent may be granted bail on
the basis of clear and convincing evidence.
WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to determine whether
private respondent is entitled to bail on the basis of clear and convincing evidence. If not, the trial
court should order the cancellation of his bail bond and his immediate detention; and thereafter,
conduct the extradition proceedings with dispatch.

Constitutional Provision on bail applies only in criminal proceeding, not to extradition

Criminal Proceedings: Extradition proceedings:
-Full blown trial -Summary in nature
-proof beyond reasonable doubt - allow admission of evidence in a less stringent
standard
-judgment becomes executory upon being final -the President has discretion rendered even
though the court deems it proper extraditable.

In extradition proceedings, it is not necessary that there be a prior hearing before the accused is
arrested. All that is necessary for the extradite to be arrested is a prima facie finding by the judge that
the petition for extradition and its supporting documents that
1. They are sufficient in form and substance
2. they show compliance with the extradition treaty and law,
3. person sought is extraditable.