GENERAL PRLINCIPLES (Public International Law) CONSTITUTION vs TREATY

Treaty - a contract in writing between 2 or more political

authorities (as states or sovereigns) formally signed by
“International Law”
representatives duly authorized and usually ratified by the
“Inter” - Among ; “Nation” - State
lawmaking authority of the state.
Nation vs. State
 No true International Court
In case of conflict, which prevails?
 No International President Power of judicial review over “All cases in which
 No International Legislature the constitutionality or validity of any treaty, international
or executive agreement, law, presidential decree,
Distinction: proclamation, order, instruction, ordinance, or regulation is
PRIVATE INTERNATIONAL LAW PUBLIC INTERNATIONAL LAW in question.” [Section 5, Article VIII]
Conflicts of Law Law of Nation
Set of procedural rules that Body of legal rules which apply Basis of International Law
determines legal system and which between sovereign states and such
Why is international law recognized and obeyed by states?
jurisdiction apply to a given dispute other entities as have been granted
international personality 1. Law of nature
Municipal Law Proper International Law 2. Positivist theory
3. Eclectic or Grotian
Divisions of International Law
LAW OF: Law of Nature School of Thought
Peace Neutrality War “Laws are created by God”
+ Governs normal + Governs those that + Governs warring “It must absolutely be maintained that the obligation of the
relations are not involved in the states natural law is from God himself, the creator and supreme
war governor of the human race, who by virtue of his sovereignty over
men, his creatures, has bound them to its observance.…He
SOURCES OF INTERNATIONAL LAW formed the nature of things and of man in such a way that the
PRIMARY: latter cannot be preserved without a sociable life.”
o International treaties and conventions  Proposed by Samuel Pufendorf (On the Law of
o International customs Nature and of Nations)
o General Principles of Law
Secondary:  NATURE OF MAN
o Decisions of courts  LAW OF NATURE
o Teachings of publicists  SOCIAL CONTRACT

INTERNATIONAL LAW vs MUNICIPAL LAW  Natural and universal principle of right and wrong,
2 School of thought independent of any mutual intercourse or
1. Monist - No distinction compact
2. Dualist - There is a distinction  Every individual can act within reason and with
conscience
INTERNATIONAL LAW MUNICIPAL LAW  International law is a law above states
International level Domestic level  Law need not be enacted, but merely discovered.
No political superior Existence of a political superior
Law “between and among” states Law of a sovereign “over” its
Law is a product of reason.
subjects
Has several sources Mainly from enactment or by POSITIVIST THEORY
legislation “Laws are created by men”
Violations are submitted to state to Violations are redressed through
state transaction local processes
 International law becomes binding because of the
Liability is statewide Liability is individual consent of sovereign states
 Consent is express in the case of conventional law,
DOCTRINE OF INCORPORATION implied in the case of customary law, and
International law, although not specifically presumed in the case of general principles of law
adopted in municipal law or the constitution, are  International law is a law of coordination
nevertheless part of the law of the land.  Proposed by Richard Zouche
The PH renounces war as an instrument of
national policy, adopts the generally accepted principles of ECLECTICS OR GROTIANS
international law as part of the law of the land and adheres  Compromise position
to the policy of peace, equality, justice, cooperation, and  International law is binding because of the law of
amity with all nations. [Section 2, Article II 1987 nature and consent of states
Constitution]  It is based on right reason and practice of states
 Proposed by Hugo Grotius
DOCTRINE OF TRANSFORMATION Sanctions in international law
Any international law must be “transformed” 1. General welfare of the society of nations
through legislation before the said international law could 2. Normal habits of obedience ingrained in the nature of
be implemented locally. man as a socialbeing
3. Respect for world opinion and the desire to project an 2. Must be of the same nature, and contain practically
agreeable publicimage uniform provisions
4. Constant and reasonable fear of retaliation from other 3. Intended to lay down rules for observance by all
states (Examples: ICRC, United Nations)
5. Coercive machinery of the United Nations Not: Bilateral Treaties (Those between two states) –
Particular international law
*GENERAL WELFARE OF THE SOCIETY OF NATIONS
*NORMAL HABITS OF OBEDIENCE Customary International Law
*RESPECT FOR WORLD OPINION Custom Usage
*CONSTANT AND REASONABLE FEAR OF THE RETALIATION FROM Practice which has grown up Not as obligatory and right as
OTHER STATES between states and has come to be custom (conviction to bind other
*COERCIVE MACHINERY OF THE UNITED NATIONS accepted as binding by the mere states)
fact of persistent usage over a long
period of time
Enforcement of international law
Example: State Immunity, State Example: Use of French or English
1. Through international organizations or regional groups responsibility as language of diplomacy
2. Inter-state
a. Diplomatic relations
b. Retorsions and reprisals Problems:
c. War 1. Proof
3. Intra-state through municipal law 2. Inflexibility
o Rome Statute - Creating the ICC
o R.A. 9851 - Act defining and penalixing crimes The Lotus Case
against IHL (France vs. Turkey: ICJ 1927)
Whether Turkey has jurisdiction to try the French officer or
Functions of International law not
1. Promote international peace and security Yes. Turkey may also prosecute
2. Foster friendly relations among nations and to 1. Although there were a few cases in which states in
discourage the use of force in the solution of differences Turkey’s position had instituted prosecutions, the other
among them states concerned had not protested
3. Provide for the orderly regulation of the conduct of 2. Although most states in Turkey’s position had refrained
states in their mutual dealings from instituting prosecutions, there were no evidence that
4. Ensure international cooperation in the pursuit of certain they have done so out of a sense of legal obligation
common purposes of an economic, social, cultural or
humanitarian character Contra
(Nicaragua vs. USA: ICJ 1986)
How is customary international law determined?
SOURCES OF INTERNATIONAL LAW 1. General Practice or Material Factor
 Source du droit  Non-intervention is found in Charter of the
Where law came from Organization of American States
vs. 2. Accepted as Law or Subjective Factor
Criteria under which a rule is accepted as valid in the given  Assent to the Declaration on Principles of
legal system at issue International Law concerning Friendly Relations
and Co-operation among States in Accordance
Basis with the Charter of the United Nations
The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall Opinio Juris
apply:  A sense on behalf of a state that it is bound to the
a. international conventions, whether general or law in question.
particular, establishing rules expressly recognized by the  Conviction felt by states that a certain form of
contesting states; conduct is required by international law.
b. international custom, as evidence of a general
practice accepted as law; General Principles of Law
c. the general principles of law recognized by “The general principles of law recognized by “peace loving”
civilized nations; nations”
d. subject to the provisions of Article 59, judicial Those which, because they are good and just, have
decisions and the teachings of the most highly qualified been accepted and are being observed by the majority of
publicists of the various nations, as subsidiary means for civilized states.
the determination of rules of law. [Article 38, Statute of Based on reason and conscience
the International Court of Justice] Examples: Prescription, Estoppel, Pacta Sunt Servanda,
Treaty Good faith
Requisites before a treaty can be considered a source of Decisions of Courts
international law:  No distinction whether international or local court
1. Must be signed by a considerable number of states as long as they establish rules of international law
 Note: Doctrine of stare decisis is not applicable in
international law
See Article 59 ICJ: Decisions of ICJ have binding
force only between parties and in respect to particular
cases
Examples: Nuremberg Trials, ICTY, ICTR, Yamashita (Source
of Yamashita standard)
Object
o Person or thing in respect of which rights are held
and obligations assumed by the subject. Not
directly governed by the rules of international law
o Rights are received and responsibilities imposed
through the instrumentality of an intermediate
agency

Writings of publicist INTERNATIONAL PERSONALITY

Requisites: Absolute Functional Limited
e.g. States e.g. International e.g. Individuals and
1. Publicist must be highly qualified
Organizations corporations
2. Writing must be fair and unbiased representation of
international law
Classification of States
Examples: Writings of Ian Brownlie, Publications
Independent
from international organizations
• With full international personality
1. Simple States – Under a single and centralized
Other sources
government that takes care of its internal as well as
1. Acts of International Organizations
external affairs
2. “Soft Law” such as Declarations and Conferences
2. Composite States – Consists of 2 or more states, each
3. Equity, Justice and Natural Law
with its own separate government but bound by a central
authority which manages the external affairs
Jus Cogens
KINDS:
Translation: “Compelling Law” a.k.a. Peremptory Norm
a.) Federation – 2 or more states unite to abandon
Technical term given to those norms of general
their individual statehood. The federal
international law that are argued as hierarchically superior.
government takes care of foreign affairs while
These are, in fact, a set of rules, which are peremptory in
members states take care of their internal affairs.
nature and from which no derogation is allowed under any
(e.g. USA)
circumstances.
b.) Confederation – 2 or more states unite but do not
Likened to a “Constitution” where all treaties,
abandon their individual statehood.
agreements, or application of international law must
c.) Personal Union – Where 2 or more states decide
conform to
to have a common head of state while retaining
Examples: prohibition on the use of force; the law of
their individual distinct international personality
genocide; principle of racial non-discrimination; crimes
d.) Real Union – 2 or more states share one or more
against humanity; and the rules prohibiting trade in slaves
state organs. (e.g. Egypt and Syria)
or human trafficking
e.) Incorporate Union – Union of 2 or more states
under a central authority, empowered to
Erga Omnes
administer both its internal and external affairs
Translation: Towards everyone
and possessed with separate international
Violation of certain International Laws are not only
personality. The union itself has no international
an offense against a state directed affected by the breach
personality. (e.g. UK)
but against all members of the international community
Examples: Piracy and Genocide
Dependent
• Do not have full control of their external
relations
SUBJECTS OF INTERNATIONAL LAW States subject to the authority of 2 or more states
KINDS:
The International Community a.) Colonies – Internal and external affairs are
Body of juridical entities which are governed by controlled by colonial power
the law of nations b.) Protectorates and suzerainties – Internal affairs
are controlled by local leaders but external affairs
Subject vs. Object of International Law are administered by protecting power usually
Subject through a treaty or agreement. For academic
o An entity that has rights and responsibilities under discussion only as there are no more protectorates
that law or suzerainties.
o It has an international personality and can assert
rights and be held directly responsible under the **Aspects of Governance
law of nations Internal Affairs
1.) STATE +
2.) NON-STATE ACTORS External Affairs
- International Organizations = STATE
- Multinational companies
- Individuals
 Neutralized states STATE GOVERNMENT
A state which in return for a permanent guarantee *Includes government as element *Instrumentality through which the
will of the state is exercised
of its territorial integrity by third powers is obligated to
maintain permanent neutrality, except for situations for its How states are created
own defense. (e.g. Switzerland) 1. Revolution - Refers to a movement, often violent, to
Differentiate with “neutrality” overthrow an old regime and effect complete change in the
fundamental institutions of society
Insurgents, Belligerents, and national liberation movements 2. Unification
Requirement in order for them to be granted limited 3. Secession - The act of separating from a nation or state
international personality: and becoming independent
They must exercise de facto control over a 4. Assertion of Independence
substantial part of national territory 5. Agreement
6. Attainment of civilization
International organizations o Civilization - Process by which a society or place
May be granted international personality if: reaches an advanced stage of social development
1. Their purposes are mainly non-political and organization.
2. They are autonomous
e.g. ILO, FAO, WHO, IMF Elements of a State
1. PEOPLE
Individuals Requisites for statehood:
1. UN Charter – “Dignity and worth of the human person” a. More or less numerous for defense
2. UDHR – “inherent dignity and equal and inalienable b. Both sexes for perpetuity
rights of all members of the human family” 2. TERRITORY
3. Treaties – Authorizing persons to bring suits before  Fixed portion of the surface of the earth in which
International tribunals the people of the state reside
4. Rules against Pirates – hostes humani generis
 Must be sufficient to provide the needs of the
inhabitants
THE STATE  Big enough to be self-sufficient and small enough
Principal Subject of International Law: to be easily administered and defended
State 3. GOVERNMENT
A group of people, more or less numerous, Agency or instrumentality through which the will
permanently living in a definite territory, under and of the state is formulated, expressed and realized
independent government organized for political ends and Functions of Government
capable of entering into legal relations with other states. a. Constituent – Exercise of sovereignty;
 Basic unit of the international community compulsory
 International Person b. Ministrant – Exercise of proprietary functions;
 Has rights and obligations under international law optional
4. CAPACITY TO ENTER INTO RELATIONS WITH OTHER
The Montevideo Convention STATES
Full title: Montevideo Convention on the Rights and Duties An entity is not a state unless it has competence,
of States within its own constitutional system, to conduct
 Agreement signed at Montevideo, Uruguay, on international relations with other states, as well as the
December 26, 1933 (and entering into force the political, technical, and financial capabilities to do so.
following year)
 Established the standard definition of a state TERRITORY
under international law. Stipulated that all states Fixed portion of the surface of the earth inhabited
were equal sovereign units consisting of a by the people of the state.
permanent population, defined territorial An area over which a state has effective control
boundaries, a government, and an ability to enter - The right to acquire territories is one of the fundamental
into agreements with other states. attributes of a state, but subject to generally accepted
 Among the convention’s provisions were that principles of international law
signatories would not intervene in the domestic or
foreign affairs of another state, that they would Components of Territory
not recognize territorial gains made by force, and 1.) Terrestrial Domain
that all disputes should be settled peacefully. 2.) Maritime and Fluvial Domain
The agreement was signed by the United States, Argentina, Brazil, Chile,
Colombia, Cuba, the Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, 3.) Aerial Domain
Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Uruguay, and Venezuela.
Bolivia was the only country attending the conference that refused to sign the
agreement.
Metes and Bounds
Must be permanent and indicated with precision
DISTINCTIONS because they generally define the jurisdiction of the state
STATE NATION *Sovereignty must be exercised
*Juridical or Juristic concept *Ethnic or Racial concept Need not be certain but a definitive core must be identified
Ways of Acquiring Territories
1. Discovery and Occupation
 Mode of acquisition of territory not belonging to
any state or terra nullius
 Territory need not be uninhabited provided that it
can be established that the natives are not
sufficiently civilized and can be considered as
possessing not rights of sovereignty but only rights
of habitation
 Open sea and outer space are res communes and
therefore are not susceptible to discovery and
occupation
Requisites of discovery and occupation
1. Possession – must be claimed on behalf of the
state represented by the discoverer and may be effected
through a formal proclamation and the symbolic act of
raising the national flag in the territory
2. Administration – Inchoate title of discovery will
bar other states from entering the territory until the lapse
of a reasonable period within which the discovering state
may establish a settlement thereon and commence to
administer it. As soon as sovereign rights are exercised,
inchoate title ripens into a full title
***The “Discovery” of the Philippines
Western Sahara Case (ICJ Advisory Opinion
[1975]):
Islands occupied by native tribes were acquired by
“agreement”, not discovery, because they are not Terra
Nullius
2. Prescription
Long, continued, and adverse possession to vest
acquisitive title in the claimant
No fixed period of possession yet in international
law
Las Palmas case: even if Spain discovered and
occupied the territory, the Netherlands acquired the same
by virtue of prescription as it exercised sovereign rights
over the island for more than two hundred years after its
discovery by Spain
3. Cession
Transfer of territory from one state to another by
agreement
Transfer of title is effected upon the meeting of
the minds of the parties and does not have to involve
actual delivery of the ceded territory to the acquiring state
4. Subjugation
Formal annexation of a territory after it has been
conquered or occupied in the course of war
5. Accretion
Accessory follows the principal doctrine (accession
cedat principali)
Accomplished 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, more effectively, by reclamation projects
The Island of Palmas Case
Palmas (Miangas) is an island of little economic value or
strategic location. It is two miles in length, three-quarters of a mile in
width, and had a population of about 750 in 1932, when the case was
decided. Palmas lies between Mindanao, the southernmost part of the
Philippines, and the Nanusa Islands, the northernmost part of Indonesia
other than Palmas.
In 1898, Spain ceded the Philippines to the United States in the
Treaty of Paris (1898) and Palmas lay within the boundaries of that cession
to the U.S. In 1906, the United States discovered that the
Netherlands also claimed sovereignty over the island, and the two parties
agreed to submit to binding arbitration by the Permanent Court of
Arbitration. On 23 January 1925, the two governments signed an
agreement to that effect. Ratifications were exchanged in Washington on
1 April 1925. The agreement was registered in League of Nations Treaty
Series on 19 May 1925. The arbitrator in the case was Max Huber, a Swiss
lawyer.
The question before the arbitrator was whether the Island of
Palmas (Miangas), in its entirety, was a part of the territory of the United
States or the Netherlands.
▪ The legal issue presented was whether a territory belongs to the first
discoverer, even if they do not exercise authority over the territory, or
whether it belongs to the state which actually exercises sovereignty over
it.
▪ Arbitrator Max Huber ruled in favor of the Netherlands’ position and
stated that the Netherlands held actual title to Palmas. It is now part of
Indonesia.
▪ Under the Palmas decision, three important rules for resolving island
territorial disputes were decided:
1. Firstly, title based on contiguity has no standing in
international law.
2. Secondly, title by discovery is only an inchoate title.
3. Finally, if another sovereign begins to exercise continuous
and actual sovereignty, (and the arbitrator required that the claim had to
be open and public and with good title), and the discoverer does not
contest this claim, the claim by the sovereign that exercises authority is
greater than a title based on mere discovery.
The Passion Island Case (Clipperton
Island case)
Clipperton Island is an uninhabited 9 square kilometer coral
atoll in the eastern Pacific Ocean, southwest of Mexico and west of Costa
Rica
French discoverers Martin de Chassiron and Michel Du Bocage,
commanding the French ships La
Princesse and La Découverte discovered the island in 1711, they drew up
the first map of the island and annexed it to France.
Mexico reasserted its claim over Clipperton Island late in the
19th century, and on December 13, 1897, sent the gunboat La Democrata
to occupy and annex it. A colony was established, and a series of military
governors were posted to Clipperton from that time, the last of whom
would be Ramón
Arnaud (1906–1916). France insisted on its ownership of Clipperton, and a
lengthy diplomatic correspondence between the two nations led to the
conclusion of a treaty on March 2, 1909, to seek the arbitration of King
Victor Emmanuel III of Italy, with each nation promising to abide by that
monarch's final determination. His decision would not be rendered until
1931.
On January 28, 1931, King Victor Emanuel finally declared
Clipperton to be a
French possession
If a territory, by virtue of the fact that it was completely
uninhabited, is, from the first moment when the occupying state makes it
appearance there, at the absolute and undisputed possession of that
state, from that moment the taking of possession is considered
accomplished and the occupation is formally completed.
THE SPRATLY ISLANDS
… and the Scarborough Shoal
What are we claiming?
1. Territory
2. Sovereign rights
3. Both
 Composed of 100 to 230 scattered islands, isles,
banks and reefs 2-6 meters above sea level
  Not viable for long term human habitation for lack Venue for Dispute Settlement
of fresh water supply 1. ICJ
2. ITLOS
Claimants and occupation (As of 2010) 3. International Arbitral Tribunal
*China *Malaysia 4. Special Technical Arbitral tribunal
*Philippines *Taiwan 5. Permanent Court of Arbitration
*Vietnam *Brunei
JURISDICTION
1947 General Definition: Powers exercised by a state over
• Tomas Cloma (Filipino Lawyernavigator) “discovered” the persons, property, or events
group of islands  LEGISLATIVE - Jurisdiction to Legislate
 EXECUTIVE - Jurisdiction to Enforce
1956
 JUDICIAL - Jurisdiction to Try
• Cloma issues “Proclamation to the Whole World”
asserting ownership by discovery and occupation of 33
-Nationals -Open Seas
islands of the Spratlies
-Terrestrial Domain -Aerial Domain
• PROC and Vietnam immediately opposed
-Maritime & Fluvial Domain -Outer Space
-Continental Shelf -Other Territories
1971
• Philippines sent a diplomatic note to Taipei demanding
Personal Jurisdiction
the removal of their garrison in Itu Aba
Nationality Principle: A state may prosecute its
nationals for crimes committed anywhere in the world
1974
Doctrine of Indelible Allegiance - an individual may
• Cloma executed “Deed of Assignment and Waiver of
be compelled to retain his original nationality
Rights” to RP
notwithstanding that he has already renounced or forfeited
• RP makes official declaration that it garrisoned 5 islands
it under the laws of the second state whose nationality he
has acquired.
1978
• PD 1596 was issued declaring most of the islands as
Some manifestations of personal jurisdiction
Philippine Territory and annexing them to Palawan
Article 15 NCC: “Laws relating to family rights and
Province as “Kalayaan Island Group”
duties, or to the status, condition and legal capacity of
persons are binding upon citizens of the Philippines, even
1979
though living abroad”
• Philippines releases a map enclosing Kalayaan Group
Article 16 NCC: “…However, intestate and
within the archipelago
testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to
the intrinsic validity of testamentary provisions, shall be
Basis of Philippine Claim
regulated by the national law of the person whose
1. Contiguity or propinquity
succession is under consideration, whatever may be the
- Hinterlands theory: A state that considers an
nature of the property and regardless of the country
island or group of islands as its natural hinterlands must be
wherein said property may be found.”
preferred as between claimants whose claims are uncertain
Income Taxation: NIRC – Income within and
2. Abandonment and occupation
outside the country
- Japan renounced islands in Treaty of Peace with
the Allies and their Bilateral Treaty of Peace with China
Jurisdiction over foreigners abroad
(however the treaty did not mention any beneficiary, this
PROTECTIVE PRINCIPLE
converted the island groups into a terra nullius
Allows a state to punish acts prejudicial to its
security, even when they are committed by foreigners
*** Kalayaan Group of Islands is different from Spratlys
abroad
Island is Different from Scarborough Shoal
UNIVERSALITY PRINCIPLE
Allows states to exercise universal jurisdiction
Will the Philippine Claim hold water?
over certain acts which threaten the international
1. What was the status of the islands in 1956?
community as a whole and which are criminal in all
2. Where are the baselines?
countries
 Kalayaan is not within baselines
 Both not yet established as a norm in international
 Bajo de Masinloc Reef (5 rocks visible during high
law
tide)
 Scarborough shoal – within RP EEZ Extradition
3. Other proofs Individuals are extradited (that is, handed over) by
 Maps one state to another state, in order that they may be tried
 Possession in the latter state for offences against its laws.
 Also includes the surrender of convicted criminals What are included in internal waters?
who have escaped before completing their punishment. The waters around, between and connecting the
Without a treaty, there is no DUTY to extradite; islands of the archipelago, regardless of their breadth and
but there is also no law that prohibits extradition if a state dimensions, form part of the internal waters of the
wants to do so. Philippines
Asylum ends where extradition begins -As internal waters, they are subject to exclusive
jurisdiction
Territorial Jurisdiction -Except: archipelagic sea lanes where right of
General Rule: A state has jurisdiction over all passage may be given to vessels as if they were open seas
persons and property within its territory
Easier to enforce than personal jurisdiction Contiguous Zones
Subject to limitations 24M from outermost point of outermost island
(12M from outer limit of territorial sea)
Exceptions to the rule on territorial jurisdiction States exercise “protective jurisdiction” over
1. Foreign states, heads of states, diplomatic contiguous zones
representatives, and consuls to a certain degree
2. Foreign state property, including embassies, consulates, Convention on the Territorial Sea and the Contiguous Zone
and public vessels engaged in non-commercial activities Protective Jurisdiction
3. Acts of state  Prevent infringement of its customs, fiscal,
4. Foreign merchant vessels exercising the rights of immigration, or sanitary regulations within its
innocent passage or arrival under stress territory or territorial sea
5. Foreign armies passing through or stationed in its  Punish infringement of the above regulations
territories with its permission within its territory or territorial sea
6. Such other persons or property, including organizations
like the UN, over which it may, by agreement, waive Continental Shelf
jurisdiction --Coastal state has sovereign and exclusive right to explore
the continental shelf and to exploit its natural resources
Jurisdiction over land --Coastal state may erect installations and equipment as
General rule: everything found within the terrestrial may be necessary
domain of the state is under its jurisdiction --Coastal state is allowed to establish on the open seas
Nationals and aliens, including non-residents, are immediately above the installations a safety zone with a
bound by the laws of the country where they are located, radius of five hundred meters over which it may exercise
and no process from a foreign government can take effect jurisdiction for the protection of its properties underneath
for or against them within the territory of the local state 1. The seabed and the subsoil of the submarine areas
without its permission adjacent to the coast but outside the area of the territorial
Local state has exclusive title to all property within sea, to a depth of two hundred meters or, beyond that
its territory limit, to where the depth of the super adjacent waters
admits of the exploitation of the natural resources of the
said areas
TRADITIONAL DIVISIONS OF THE SEA 2. The seabed and subsoil of similar areas adjacent to the
- Internal Waters coasts of islands
- Territorial Sea
- High Seas Patrimonial Sea
 Also referred to as the Exclusive Economic Zone.
Maritime and Fluvial Jurisdiction All living and non-living resources found therein
**Internal waters of a state is an integral part of the land belong exclusively to the coastal state
mass and subjected to the same degree of jurisdiction
exercised over the terrestrial domain. Open Seas
(Includes: land locked lakes, national rivers, manmade --Also known as the High Seas
canals) --Res Communes – not owned by anyone.
--Available to the use of all states for purposes of
PUBLIC VESSELS MERCHANT VESSELS navigation, flying over them laying submarine cables or
Civil, criminal, and administrative Foreign merchant vessels docked in fishing. In times of war, hostilities may be waged on the
jurisdiction is exercised by the flag a local port or bay is under the
state over its public vessels jurisdiction of the local state in civil open seas
wherever they may be, provided matters. Criminal jurisdiction is
they are not engaged in commerce. determined according to either the When may a state exercise jurisdiction over the high seas?
English or French rule 1. Over its vessels
2. Over pirates
Criminal jurisdiction over foreign merchant vessels 3. In the exercise of the right of visit and search
English Rule French Rule 4. Under the doctrine of hot pursuit
• Coastal state shall have • Flag state shall have jurisdiction
jurisdiction
Aerial Jurisdiction assertion strength of its consequence acquisition of enjoyment
of its relations with of the waiver Extraterritorial of
--Local state has jurisdiction over the airspace above it to personal other states or of rights easements
an unlimited height, or at the most up to where outer jurisdiction territories, as jurisdiction or
space begins over its when it by a the local servitudes
nationals establishes a state over
--No foreign aircraft, military or civil, may pass through the abroad or colonial persons and
aerial domain of a state without its consent the protectorate, things within
exercise of or a its territory
its right to condominium,
Suicide Bombings punish or administers
"First I will ask Allah to bless my mission with a high rate of certain a trust
casualties among the Americans," he says, speaking softly offenses territory, or
committed occupies
in a matter-of-fact monotone, as if dictating a shopping list. outside its enemy
"Then I will ask him to purify my soul so I am fit to see him, territory territory in
and I will ask to see my mujahedin brothers who are already against its times of war
national
with him." He pauses to run the list through his mind again, interest by
then resumes: "The most important thing is that he should aliens
let me kill many Americans.”
RECOGNITION
 The 911 Attacks Concept of Recognition
 The Bojinka Plot Majority DECLARATORY CONSTITUTIVE Minority
View Affirmation of An indispensable View
Five air freedoms fact that the element of being
entity possesses an international
1. Freedom to fly across foreign territory without landing the status of person
2. Freedom to land for non-traffic purposes being an
3. Freedom to put down traffic originating in the state of international
person
the aircraft Highly political Mandatory and
4. The freedom to embark traffic destined for the state of and Legal
the aircraft discretionary
5. Freedom to embark traffic destined for or to put down
traffic originating in a third state OBJECTS OF RECOGNITION
STATE BELLIGERENT GOVERNMENT
COMMUNITY
Convention on Offenses and Certain other acts committed -Irrevocable -Does not mean -May be withdrawn
on board aircraft -Redounds to recognition of states or -Does not mean
General Rule: State of registration of aircraft has recognition of government statehood is also
government recognized
jurisdiction over offenses and acts committed on board
while it is in flight or over the high seas or any other area
KINDS OF RECOGNITION
outside the territory of any state. EXPRESS IMPLIED
* No other state may exercise jurisdiction over such aircraft May be verbal or in writing By entering into an official transaction
except: with
1. The offense has effect on the territory of such state the new member
May be through a formal Changing diplomatic representatives,
2. The offense has been committed by or against a national proclamation or announcement, a concluding bipartite treaty,
or permanent resident of such state stipulation in a treaty, letter or acknowledging the flag of the new
3. The offense is against the security of such state telegram or on the occasion of an entity, or otherwise entering into
official call or conference formal relations with it
4. The offense consists of a breach of any rules or
regulations relating to the flight or maneuver of aircraft in
The act constituting recognition shall give a clear indication
force in such state
of an intention:
5. The exercise of jurisdiction of such state is necessary to
1. To treat the new state as such
ensure the observance of any obligation of such state
2. To accept the new government having legitimate
under a multilateral international agreement
authority to represent the state
3. To recognize the insurgents that they are entitled to
Outer Space
exercise rights of belligerents
--Region beyond the earth’s atmosphere
--Res Communes – free for exploration and use by all states
Recognition of States
without discrimination of any kind, on a basis of equality
--- The free act by which one or more states acknowledge
and in accordance with international law
the existence on a definite territory of a human society
--State launching an object into outer space shall retain
politically organized, independent of any existing stat , and
jurisdiction and control over such object, and over any
capable of observing the obligations of international law,
personnel thereof, while in outer space or on a celestial
and by which they manifest before their intention to
body. The state shall be liable for any damage that may be
consider it a member of the international community.
caused by such object to another state or to any person
Recognition of Governments
How a state asserts jurisdiction
over other territories
--- The free act by which one or several states acknowledge
Through On the As a Through Through that a person or a group of persons is capable of binding
the state which they claim to represent and witness their
intention to enter into relations with them Consequences of Recognition
1. Full diplomatic relations are established except when
DE JURE GOVERNMENT DE FACTO GOVERNMENT government recognized is de facto
Officially recognized by the Not recognized by the constitution, 2. The recognized state or government acquires the right to
constitution and other usually caused by for example a
sue in the courts of the recognizing state
(neighboring) states, and revolution within (i.e. revolutions
sometimes even supranational and caused by the people of the State).
inter-governmental institutions Recognition of Belligerency
KINDS OF RECOGNITION ▪ Belligerency – exists when the inhabitants of a state rise
DE JURE DE FACTO
-- Relatively permanent -- Provisional up in arms for the purpose of overthrowing the legitimate
-- Vests title in the government to -- Does not vest title to properties government
its properties abroad INSURGENCY BELLIGERENCY
-- Brings about full diplomatic -- Limited to certain juridical Initial stage of Belligerency Serious and widespread
relations relations Directed by military authorities Under a civil government
Not recognized May be recognized
Kinds of De Facto Governments
1. Established by revolution Effects of Local (minor) Belligerency
2. Established invading forces in the course of war ▪ Internal affair or a state which does not produce
3. Established by secession
international repercussion
- State to state relations is still governed by laws of peace
The Tobar or Wilson Principle
- Government vs. Belligerents are governed by municipal
Expressed in a treaty of the Central American
law
Republics in 1907 at the suggestion of Foreign Minister
Tobar of Ecuador and reiterated in 1931 by President ▪ Damage caused by rebels to a third state is imputable to
Woodrow Wilson of the United States the legitimate government
 Recognition shall not be extended to any
government established by revolution, civil war, Widespread (Full) Belligerency
coup d’etat or other forms of internal violence 1. There must be an organized civil government directing
until the freely elected representatives of the the rebel forces
people have organized a constitutional 2. The rebels must occupy a substantial portion of the
government. territory of the state
3. The conflict between the legitimate government and the
Stimson Principle rebels must be serious, making the outcome uncertain
Policy of the United States federal government, 4. Rebels must be willing and able to observe the laws of
enunciated in a note of January 7, 1932 to Japan and China, war
of non-recognition of international territorial changes
affected by force. Consequences of recognition of belligerency
Named after Henry L. Stimson, United States Secretary of ▪ Belligerent community is considered as a separate state
State
▪ Relationship between Belligerent and legitimate
No government established as a result of external
aggression shall be recognized government will be governed by the laws of war
▪ Relationship between belligerent and legitimate
Estrada Doctrine government and other states will be governed by the laws
Espoused by Mexico’s Minister Genaro Estrada of neutrality
(1930)
States cannot pass judgment regarding the right of
foreign nations. A state may not issue a declaration giving
RIGHT OF INDEPENDENCE
Sovereignty
recognition to such government, but merely accept
whatever government is in effective control without raising ▪ from Old French soverain, from Vulgar Latin superanus
the issue of recognition. Dealing or not dealing with the which means "chief, principal“
government is not a judgment on the legitimacy of the said ▪ It is the supreme, uncontrollable power inherent in a
government. state by which that state is governed
Modern View ▪ It is the supreme power of the state to command and
States extend recognition to a new government only if it is enforce obedience, the power to which, legally speaking, all
shown that it has control of the administrative machinery interests are practically subject and all wills subordinate
of the state with popular acquiescence and that it is willing ▪ In international law: Attribute that enables the state to
to comply with its international obligations make its own decisions free from external influence from
other states
OBJECTIVE TEST SUBJECTIVE TEST
• Government must be able to • Employed for the purpose of
maintain order within the state to justifying the withholding of
Aspects of Sovereignty
repel external aggression recognition from a government INTERNAL EXTERNAL
that is politically unacceptable • Power of the state to direct its • Freedom of the state to control
domestic affairs its own foreign affairs
• e.g. establishment of own • e.g. entering into treaties,
government, enactment of laws, declaration of war, diplomatic and
adoption of economic policies commercial relations
William Edward Hall
“The ultimate foundation of international law is an assumption that states
possess rights and are subject to duties corresponding to the facts of their
postulated nature. In virtue of this assumption it is held that since states
exist, and are independent beings, possessing property, they have the
right to do whatever is necessary for the purpose of continuing and
developing their existence, of giving effect to and preserving their
independence, and of holding and acquiring property, subject to the
qualification that they are bound correlatively to respect these rights in
others. It is also considered that their moral nature imposes upon them
the duties of good faith, of concession of redress for wrongs, of regard for
the personal dignity of their fellows, and to a certain extent of sociability.”
Thomas Hobbes (Leviathan)
▪ State of nature - people could do whatever they wanted
▪ People living in this violent state of nature will seek to
create social agreements with each other. For example, "I
won't steal from or kill you if you won't steal from or kill
me."
Intervention
• Act by which a state interferes with the domestic or
foreign affairs of another state or states through the
employment of force or threat of force
• Allowed only when it is exercised as an act of self-defense
or when decreed by UN Security Council
Some declarations about non-intervention
UN Declaration of the Rights and Duties of States -
“every state has the duty to refrain from intervention in the
internal or external affairs of any other State.”
Charter of the Organization of American States –
“no State or group of States has the right to intervene,
directly or indirectly, for any reason whatsoever, in the
internal or external affairs of any other State”
** Non-intervention rules have been blurred due to
Humanitarian reasons
The Drago Doctrine
▪ Announced in 1902 by the Argentine Minister of Foreign Affairs
Luis María Drago
▪ History: Venezuela then was indebted to Great Britain,
Germany, and Italy, which threatened armed intervention to
collect. Drago advised the United States government that “The
public debt cannot occasion armed intervention nor even the
actual occupation...”
▪ Read with “Calvo Doctrine” - jurisdiction in international
investment disputes lies with the country in which the investment
is located. Proposed to prohibit diplomatic protection or (armed)
intervention before local resources were exhausted. An investor,
under this doctrine, has no recourse but to use the local courts,
rather than those of their home country. Named after Carlos
Calvo, an Argentine jurist
The Right of Equality
Article 2 Charter of the UN
“the Organization is based on the principle of the sovereign
equality of all its members”
LEGAL EQUALITY POLITICAL EQUALITY
Legal relations that States maintain Relative distribution of economic
with each other and military power between states
Manifestations of right to equality
 All members of the United Nations have each one
vote in the General Assembly, all votes having
equal weight, and are generally eligible for
positions in the various organs of the UN
 Every state has the right to the protection of its
nationals, to make us of the open seas, or to
acquire or dispose of territory
 All states have same rights when involved in a war
(e.g. POW)
 Par in parem non habet imperium - An equal has
no power over an equal
 Act of state doctrine - no other state can question
the legality of official acts of another state
Absolute equality: Fact or Fiction?
Consider working of UN Security Council: Non
procedural (substantive) questions are decided by the
Security Council only with the concurrence of the Big Five
Big five are permanent members of in UN Security
Council unlike others with a term of only two (2) years
**The Nuclear Club
TREATIES
Formal agreement, (usually but not necessarily) in
writing, which is entered into by states or entities
possessing the treaty-making capacity, for the purpose of
regulating their mutual relations under the law of nations
May also refer to conventions, declarations,
covenants, acts, and concordats
FUNCTIONS OF TREATIES
1.) Enable parties to settle actual and potential conflicts
2.)Makes it possible for the parties to modify the rules of
international customary law by means of optional principles
or standards
3.)Lead to a transformation of unorganized international
society into one which may be organized on any chosen
level of social integration
4.)Frequently provide the humus for the growth of
international customary law
ESSENTIAL REQUISITES OF A VALID TREATY
1. Entered into by parties with the treaty making capacity
2. Through their authorized representatives
3. Without the attendance of duress, fraud, mistake, or
other vice of consent
4. On any lawful subject-matter
5. In accordance with their respective constitutional
processes
TREATY MAKING PROCESS
1.) Negotiation
2.) Signature
3.) Ratification
4.) Exchange of instruments
Binding effect of treaties
 Pacta tertiis nec nocent nec prosunt - A treaty
does not create either obligations or rights for a third State
without its consent
Treaties are only binding on the contracting
parties and other states who later on sign by a process
known as accession

Instances when treaties are made applicable even to third

parties
1. Treaty is merely a formal expression of customary
international law
2. As provided in the UN Charter: nonmember states must
act in accordance with the principles of the charter in so far
as may be necessary for the maintenance of international
peace and security
3. Where the treaty expressly extends its benefits to non-
signatory states

Pacta Sunt Servanda

“Agreements must be kept”
Every treaty in force is binding upon the parties to
it and must be performed by them in good faith
Despite supervening hardships, the parties must
comply with their commitments and perform treaty
obligations in good faith

Rebus sic stantibus

“Things thus standing”
A tacit condition attached to all treaties to the
effect that they will no longer be binding as soon as the
state of facts and conditions upon which they were based
changes to a substantial degree

Limitations to the doctrine of rebus sic stantibus

1. Applies only to treaties of indefinite duration
2. Vital change must have been unforeseen or
unforeseeable and should not have been caused by the
party invoking the doctrine
3. Must be invoked within a reasonable time
4. Cannot operate retroactively upon the provisions of the
treaty already executed prior to the change of
circumstances

Termination of treaties
1. Expiration of term
2. Accomplishment of the purpose
3. Impossibility of performance
4. Loss of the subject-matter
5. Desistance of the parties, through express mutual
consent, exercise of the right of denunciation (desuetude)-
when allowed
6. Novation
7. Extinction of one of the parties
8. Rebus sic stantibus
9. Outbreak of war
10. Voidance of the treaty