What is Law?
Court ruled in affirmation to Helen's claims, stating
❖ Is an ordinance of reason, just and obligatory,
promulgated by the one who is in charge, for
common observance, the benefit of common good
to the general welfare.
that it is the Philippine laws which should govern its
distribution.
● It is in our Civil Code specifically Art 16 which
prescribes that successions are governed by the
❖ General Sense: Any rule of action or any system of
national law of the testator. However, upon looking
uniformity. In this concept, the term embraces not
at the national laws of the United States it was
only divine law, natural law and moral law, but even
found that there are no rules covering the validity of
physical law.
testamentary provisions. Therefore, seeking at the
❖ Strict Sense: is the law that we refer to when we
private law of California, where the testator is a
speak of law in connection with obligations and
resident, Article 946 of the California Civil Code
contracts, marriage, the administration of justice, the
prescribes
conduct of elections, and the entire governmental
governed by the laws of the domiciled country,
process itself.
which in the case is the Philippines.
❖ Kinds of Laws:
however, that the will should be
● In these instances, the Renvoi doctrine takes
➢ Civil law - pertains to law that deals with the
relationship among people
precedence and the forum country, the Philippines,
is expected to address the question.
➢ Criminal law - defines crimes and their penalties
○ A project of partition is a document prepared by
➢ Commercial law - rights, relations and conducts
the executor or administrator setting forth the
of person and business, and commerce of men.
manner in which the estate of the deceased is
➢ Labor law - deals with the relations between
workers, employers, and trade unions
to be distributed among the heirs
Bellis v. Bellis
● Amos Bellis, a resident and domiciled citizen of
CHAPTER 1
Texas, executed one of his wills in the Philippines
where he distributed his assets to his first wife
GENERAL PRINCIPLES
(Mallen, 240,000 dollars), his three illegitimate
❖ International Law: body of legal rules
that
children (Amos Jr, Maria Cristina, and Miriam 40,000
regulates the relations of states and of other entities
pesos
each
while
which have been granted an international personality
distributed to his other 7 surviving children. Upon the
➢ Body of legal rules which apply between
partition to his legitimate children, Maria and Miriam,
appellants
the
raised
remaining
upon
the
assets
courts
are
sovereign states and such other entities as have
the
their
been granted international personality
opposition stating that they are still entitled of
legitimes as compulsory heirs of Amos. Further
❖ Public International Law v. Private International
Law
➢ Public
asserting that since there are two wills, one in Texas
and one in the Philippines, the Philippine laws must
International
Law
deals
with
the
interaction between and among states while
be applied in the distribution of the will written in the
Philippines.
Private International Law deals with the relation
● The Court however disagreed with the opposition.
between individuals of different states as they
Initially, Art 17 of the Civil Code may not be seen as
interact with each other.
an exemption to Art 16 as it has clearly provided that
➢ Private International Law is also called “Conflict
the laws of the deceased foreign national must be
of Laws” as to refer to the existence worldwide
deemed effective in the distribution of will. Therefore,
and within individual countries of different legal
the Philippines, despite acknowledging the system of
traditions and rules of private law.
legitimes, may not be used as an aid to the
Christensen v. Christensen
execution of the wil. On the issue of two different
● The case involves the will of Edward Christensen
wills executed in Texas and the Philippines, the
where it was explicitly stated that Lucy Christensen,
deceased may not bend the law and state or imply
his only daughter, is granted all of his assets upon
that his will must be distributed under Philippine laws
death. Further, giving Helen Christinsen, despite
as such will be void and illegal. Wherefore, the Court
claiming not to be related to him, 3,600 pesos. This
affirmed the decision of the lower court.
resulted in Helen's contention before the bar that
○ Legitime is the compulsory succession and the
she, as an acknowledged legitimate child of
requirement that an heir be entitled to a specific
Edward, must be granted half of his assets and that
portion of the testator's estate.
the will must be governed by Philippine laws. The
DIFFERENCE BETWEEN CHRISTENSEN and BELLIS
❖ The internal law of a country as opposed to
❖ The case of Christensen provided a clear view of
the conflict in which state law should govern
international law
❖ These are laws and ordinances applicable within a
(between Philippines and California) and the use of
city, town, or other local government entity.
the Renvoi doctrine. While the case of Bellis had a
clear implication that the courts of Texas should
have the jurisdiction due to the residence and
DISTINCTIONS WITH MUNICIPAL LAW
❖ Monists: Believe in the oneness of the law. The
domicile of the testator.
main reason for the essential identity of the two
spheres is that some of the fundamental notions of
WAS CHRISTENSEN CITED?
International Law cannot be comprehended without
❖ Yes. Christensen was cited in the case of Bellis
the assumption of a superior legal order from which
when the Court pointed out that the appellants did
the various systems of Municpal Law are derived in
not use the Renvoi Doctrine and ruled that without
a way.
proof of the conflict of rules between the two states it
❖ Dualists: Believes in the dichotomy of the law and
must not be presumed.
stands with the difference between municipal and
international law.
DIVISIONS OF INTERNATIONAL LAW
Laws of
Peace
● What
governs
the
relationship
MUNICIPAL LAW
INTERNATIONAL LAW
Municipal law is issued by
international law is not
a
imposed upon but simply
between countries by default.
● It is observed when there is an
absence
of
war or any violent
politcal
superior
for
observance
threats.
adopted by states as a
common rule of action
Laws of
War
● Laws that govern the relationship of
states
for
the
duration
of
among themselves.
the
hostilities.
○
E.g.
Treat
swap/
prisoner,
exchange
prisoner, if you see a
dying
soldier
what
Municipal
mainly
from
law
consists
of
enactments
the
lawmaking
authority
derived
not
law
is
from
any
particular legislation but
from such sources as
international
should you do.
○
International
customs,conventions,
Guide for beligerents.
and the general principle
Laws of
Neutrality
● Relations
states
of
all
non-participating
and
non-participating
between
state
and
of law
a
a
participating state during wartime
● Those states not involved in the war
Municipal law regulates
International law applies
the relations of individuals
to the relations inter se of
of the state.
states
However,
their
relations
with
beligerents, or those involved in the
war, are governed by the laws of
neutrality.
Violations
law
of
are
through
municipal
Questions of international
redressed
law are resolved through
local
state-to-state
administrative and judicial
transactions.
processes.
methods:
○ Does not side with opposing
arbitrament
○ E.g. switzerland, a very neutral
Common
ground
negotiation
hostile
of
○ Talks about non-intervention, no
overrreaching, and do not side
reprisals and war).
Municipal law generally
International
entails
usually collective in the
only
responsibility.
individual
sense
law
is
that it attaches
directly to the state and
not to its nationals.
MUNICIPAL LAW: DEFINED
force:
for
neutrality
with opposing beligerents.
(peaceful
andarbitration;
beligerents/ unbiased
state.
other
international persons.
continue to be regularted under the
laws of peace in the relation inter se.
and
RELATION TO MUNICIPAL LAW
Article VII, Section 21 of the Constitution: “No
❖ It is possible for a principle of municipal law to
become part of international law, as when the
principle is embodied in a treaty or convention.
effective unless concurred in by at least two-thirds of
all members of the Senate.” Thus, treaties or
❖ For International Law, on the other hand, to be part
of Municipal Law it must be Incorporated or
Transformed.
conventional international law must go through a
process prescribed by the Constitution for it to be
transformed into municipal law that can be applied to
➢ It says that even public international law does
not
treaty or international agreement shall be valid and
express
domestic conflicts.
declaration, states are still
obligated or bound by the rules prescribed by it
for the regulation of international intercourse as
❖ When there is an apparent contradiction between
municipal and international law, its basic rule is to
long as they are the customary principles.
reconcile and give effect to both. As it is assumed
Under the 1987 constitution, international law can
become part of the sphere of domestic law either by
that municipal laws when enacted are done with
consideration of the international law.
❖ When the issue or conflict is actual, the International
transformation or incorporation.
❖ Incorporation: act of affirming their recognition to
law must prevail over the Municipal law due to the
fear of international anarchy or lawlessness.
international laws in their constitution
➢ However, when the case if filed locally, domestic
➢ this method applies by mere constitutional
law will prevail.
declaration/ integrating their acknowledgement
to international laws by adding it to the
❖ General accepted principles of international law refers to norms of general or customary international
constitution.
❖ E.g for doctrine of incorporation is observed as
law which are binding on all states.
➢ I.e renunciation of war as an instrument of
expressed in
national policy, and a person’s right to life, liberty
and due process.
Article II, Section 2, of the Constitutio:“The
Philippines renounces war as an instrument of
national
policy,
adports
MUNICIPAL SPHERE
the generally accepted
principles of international law as part of the law of the
land, and adheres to the policy of peace, quality,
justice, freedome, cooperation, and amity with all
nations.”
This
said
provision
embodies
the
Doctrine of
Transformati
make the treaty enforceable in
on
the municipal; sphere.
● Only when so transformed will
incorporation method. In fact, the Supreme Court has
they become binding upon the
applied the generally accepted principles of law
notwithstanding
that
they
have
not
● Legislative action is required to
state as part of its municipal law.
undergone
● Treaties become part of the law
transformation.
of
the
land
through
transformation pursuant to Article
❖ Transformation - this method requires that an
VII, Section 21 of the constitution
international law be transformed into a domestic law
which provides that no treaty or
through the act of the legislative body of a country /
international agreement shall be
a constitutional mechanism such as local legislation.
valid
➢ In the Philippines, customary international laws
● Meaning, treaties or conventional
to undergo transformation
also
observes
unless
of all the members of the senate.
system while treaties or conventional laws need
State
effective
concurred in by atleast two-thirds
are deemed to be incorporated in our domestic
❖ The
and
international law must go through
the
doctrine
of
a process prescribed by the
transformation, as provided in
constitution
for
it
to
be
transformed into municipal law
that can be applied to domestic
conflicts.
Doctrine of
Incorporatio
● Rules of international law form
part of the law of the land and no
n
further
legislative
needed
to
applicable
action
are
make such rules
in
the
domestic
➢ A treaty engagement is not a mere moral
obligation but creates a legally binding obligation
on the parties. A state which has contracted a
valid international obligation is bound to make in
sphere.
● It is embodied in the constitution.
its legislation such modifications as may be
necessary to ensure the fulfillment of the
obligations undertaken
❖ Constitutions,
mostly,
contain
provisions
Question: What is the doctrine of incorporation? How
empowering the judiciary to annul treaties and the
does it differ from the doctrine of transformation?
legislature to supersede them with statutes, thereby
establishing the primacy of the local law over the
Answer: The doctrine of incorporation postulates
that generally accepted principles of international law
are automatically incorporated in the municipal law of
➢ Supreme/ fundamental law of the land. No law
should run against the constitution.
➢ Art VII, Sec 5 (2): The Constitution authorizes
each state upon admission to the family of nations.
-
international agreement.
the Supreme Court to decide, among others, all
Meaning it is embodied in the constitution.
cases involving the constitutionality of “any
Doctrine of transformation, on the other hand,
treaty, international or executive agreement, law,
requires the said principles of international law to be
presidential
enacted (as statutes or converted) into municipal law
instruction, ordinance, or regulation in question.
decree,
proclamation,
order,
➢ A treaty engagement is not a mere moral
before they can be considered binding on the state.
obligation but creates a legally binding obligation
Furthermore, these doctrines allow international law to
on the parties. A state which has contracted a
be part of the sphere of domestic law, wherein the
valid international obligation is bound to make in
doctrine of incorporation provides that even if they do
its legislation such modifications as may be
not directly derive from the treaty obligations, if it is a
necessary to ensure the fulfillment of the
generally accepted principle; it shall still form as
obligations undertaken
part of the law of the land, whereas the transformation
method
requires
the
international
law
to
be
transformed into a domestic law.
➢ The court may nullify treaties when it runs
counter to the constitution or to an act of the
congress.
❖ In the International sphere it is understood that
Question: How do treaties become part of the law of
Treaties will prevail over the Constitution. But in a
the land?
municipal sphere, Philippines as an example. The
constitution of the Philippines gives the Court to
Answer: Treaties become part of the law of the land
determine the validity of treaties and if it is found to
through the doctrine of transformation, as provided in
be in contrary with the Constitution they have the
Article VII, Section 21 of the Constitution.
power to make the treaty unbinding Note that
treaties are under Doctrine of Transformation so the
International law is binding upon the state as a
judiciary or senate are allowed to over rule.
corporate person, and no provision of the national
❖ Pacta Sunt Servanda (Agreements are to be
constitution or act of the national legislature change
expected) - International agreements must be
the force of its provisions.
performed in good faith.
➢ Treaties. … known by the Latin formula pacta
CONSTITUTION v. TREATY
❖ The treaty is rejected in the local forum but is
upheld by international tribunals as a demandable
obligation of the signatories under the maxim pacta
sunt sevanda.
➢ Every state has the duty to carry out in good
faith its obligations arising from treaties and
other sources of international law. It may invoke
its constitution or laws as an excuse for failure to
perform this duty.
sunt servanda (“agreements must be kept”) is
arguably the oldest principle of international law.
Without such a rule, no international agreement
would be binding or enforceable.
❖ Rebus Sic Stantibus BASIS OF INTERNATIONAL LAW
❖ International Law does not emanate from a supreme
law making authority for the regulation opf those
subject but is, on the contrary, voluntarily observed
by an international community which does not
groups suc as United Nations (Security Council and
recognize any political superior
the International Court of Justice).
❖ Theory 1 Samuel Pefendort, Naturalist:
❖ Observance - essentially subjective and mainly
➢ The basis of international law is the law of
nature, which is described as the “higher law”.
dependent on the volition of the entity which is
supposed to be governed by the law.
Thus viewing International law as not a law
➢ subjective in nature and heavily reliant on the
between states but above states.
intended subject of the law's control's free will.
❖ Theory 2: Richard Zouche, Positivist
❖ Enforcement
➢ The binding force of international law is derived
from the agreement of the sovereign states
-
the
process
by
which
such
observance may be compelled, usually by force or at
least the threat of force.
bound by it. It is not a law of subordination but of
➢ States are able to enforce international law
coordination. The acknowledgementtherefore is
among
necessary for it to become a law.
organizations or regional groups such as the
❖ Theory 3: Grotious, Ecletics or the Groatians
United
➢ Mixture of the two; it is derived from the principle
of
right
reason
and
the
practice
each
other
Nations
through
and
the
international
Organization
of
American States.
or
■ Grievances may also be presented to and
acknowledgement of states
discussed in these bodies.
➢ “the father of international law”,
■ This function is usually exercised by the
➢ Should there be a conflict between the two, the
United
Nations
through
the
Security
law of nature was to prevail as being the
Council and the International Court of
fundamental law.
Justice.
❖ In lieu of remedies, or before availing, quarreling
SANCTIONS OF INTERNATIONAL LAW
states may attempt to settle differences between
❖ Sanctions are described as “the compulsive force of
reciprocal advantage and fear of retaliation.”
themselves, through diplomatic talks or hostile
measures (retorsions and reprisals), when all else
➢ They are afraid that when they violate Intl Law,
fails, war will be the last resort.
the family of nations will return or retaliate to
their state.
FUNCTIONS/
❖ Why is it needed? : Because of the fact that law is
binding does not mean it will be observed, especially
in the absence of some coercive influence to dictate
IMPORTANCE OF INTERNATIONAL
LAW
1. Establish peace and order in the community of
nations
obedience.
❖ Why is it important? : They serve as the
2. Promote lasting world accord and friendship
international community's most powerful peaceful
means to prevent threats to international peace and
security or to settle them. Sanctions do not include
the use of military force.
3. Encourage international cooperation
4. Provide for an orderly management of the relations
of the state.
❖ Measures or actions to compel states to observe
international law.
DISTINCTIONS WITH OTHER CONCEPTS
❖ International morality or ethics - govern the
1. Inherent reasonablness of International Law
relations of states from the higher standpoint of
2. The normal habits of obedience ingrained in the
conscience, morality, justice, and humanity; similar
to the law of nature.
nature of man as social beings
❖ International Comity - rules of courtesy observed
3. Respect for world opinion held by states and their
desire to project an angreeable image.
by states without legal claims.
❖ International diplomacy - objects of national or
international policy and the conduct of foreign affairs
4. Constant and reason fear of retaliation
or international relations.
5. Influence and machinery of the united Nations
❖ International Administrative Law - which regulate
the
relations
and
international agencies
ENFORCEMENT OF INTERNATIONAL LAW
❖ States are are able to enforce International law
through
international
organizations
or
regional
activities
of
national
and
➢ are international communications, protection of
■ Not every treaty can be considered a direct
literary and artistic rights, prevention of crime,
source of international law as it is not
and promotion of health and education.
always concluded by the great body of
states
PRESENT STATE OF INTERNATIONAL LAW
➢ Particular
International
Law,
being
an
❖ Many of the rules are still rooted in tradition
agreement between a limited number of states
❖ International law thus remains in a state of
may not be considered as a primary source.
transition
as
mankind
struggles
toward
the
➢ A bilateral treaty (contract treaty) involves
millennium of harmony and order.
bilateral arrangements concerning matters of
❖ Evolving to suit the needs of the time.
particular or special interest to the contracting
parties.
CHAPTER 2: SOURCES OF INTERNATIONAL LAW
■ It may become a source of international law
if it adheres to the same nature and
SOURCES OF INTERNATIONAL LAW
contains
● Article 38 of the Statute of the International Court of
Justice, provides the sources are either primary or
secondary.
uniform
provisions
as
those
previously agreed by a substantial number
of states.
■ E.g. Between the Philippines and Japan,
for example, is binding only upon the
1. The Court, whose function is to decide in
accordance with international law such disputes as
a. international conventions, whether general or
establishing
the international community which had no
participation in its negotiation or adoption.
are submitted to it, shall apply:
particular,
signatories and cannot apply to the rest of
rules
expressly
recognized by the contesting states;
b. international custom, as evidence of a general
practice accepted as law
c. the general principles of law recognized by
civilized nation
d. subject to the provisions of Article 59, judicial
decisions and the teachings of the most highly
qualified publicists of the various nations, as
subsidiary means for the determination of rules
■ So meaning a treaty is being limited in
operation.
■ Bilateral treaties may become primary
sources of international law, if they are of
the same nature, contain practically uniform
provisions
and
are
concluded
by
a
substantial number of states.
➢ General Rule: that the treaty, to be considered
a direct source of international law, must be
concluded by a sizable number of states and
reflect the will of the family of nations.
➢ Exception: It may be binding if it is intended to
of law.
lay down rules of observance by all.
2. This provision shall not prejudice the power of the
court to decide a case ex aequo at bono, if the
parties agree thereto.
❖ Customs
➢ A practice which has grown up between states
and has come to be accepted as binding by the
mere fact of persistent usage over a long
period of time.
PRIMARY SOURCE
➢ General and consistent practice of states
❖ Treaties
➢ A 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.
➢ An international instrument concluded between
states
in
written form and governed by
international law
➢ Must be:
■ Between States
■ Written
■ Governed by International Law
➢ Not every treaty may be considered as a
source of international law.
recognized and followed by them from a sense
of moral obligation.
➢ It exists when a clear and continuous habit of
doing
certain
things
develops
under the
conviction (called Opinio Juris) that it is
obligatory and right.
➢ Defects of customary international law:
1. Difficulty in defining when a practice can be
considered to have hardened into custom.
2. Inability at times to adjust to the swiftly
moving developments of the international
society which it is supposed to regulate.
CUSTOM
➢ Refers to norms of general or customary
USAGE
international law which are binding on all states,
of
Long established way of
■ i.e renunciation of war as an instrument of
conducting affairs with the
doing things but without
national policy and person right to life,
belief that it is obligatory
the conviction that it is
liberty, and due process
and right (Opinio Juris).
obligatory and right.
Established
way
➢ Recognized by civilized nations and the world’s
major legal systems.
❖ To elevate a mere usage into a customary rule of
➢ Mostly derived from the law of nature and are
international law, there must be a degree of constant
observed by the majority of states because they
and uniform repetition over a period of time coupled
are believed to be good and just.
with opinio juris.
❖ Two Elements of Customary Laws:
➢ It is binding only when consented to by the
➢ State Practice
family of nations.
■ Objective Eelement
■ Refers to the continuous repetition of the
➢ When there is no custom or treaty provision
same or similar kind of acts or norms by
applicable, one must resort to general principles
states.
of law.
● Generality
● Uniformity/ Consistency
❖ Jus cogens are from customs that were consistently
● Duration
➢ Opinio Juris (Opinion of law) - action carried out as a legal
obligation
■ Psychological Element
■ The practice is carries out in a way that it is
believed to be obligatory by the existence of
practiced. they are considered to be the highest form
of a custom as their nature is good. While GAP are
principles acknowledged by justice systems and
must therefore be observved by all.
a rule of law requiring it.
SECONDARY SOURCES
➢ Would dissenting states be bound by custom?
■ Yes, unless they had consistently objected
to it while the custom was merely in the
➢ Both kinds are acceptable as long as they are a
❖ Jus Cogens
correct application and “undertake to establish
➢ Peremptory Norm
➢ A norm accepted and recognized by the
international community of states as a whole as
the rule of international law”.
➢ Stare Decisis (To stand by things decided is not
applicable in international law and do the
a norm from which no derogation is permitted
is
➢ Did not distinguish between those rendered by
the international tribunal or by national courts.
process of formation.
➢ It
❖ Decision of Courts
mandatory and must be universally
decision of a subsequent case will only have
persuasive value in that specific matter.
accepted.
■ According to article 59 “The decision of the
❖ What is jus cogens and can the concept be
the parties and in respect to the particular
applied to international crimes?
➢ Jus cogens means the “compelling law”.
Corollary, “a jus cogens norm holds the
highest hierarchical position among all
other customary norms and principles.”
As a result, jus cogens norms are
deemed
Court has no binding force except between
“peremptory
and
case.”
❖ Writing of Publicist
➢ Must be a fair and unbiased representation of
international law, and by acknowledged authority
in the field.
➢ Credentials are not enough.
non-derogable.” (Bayan Muna v, Romul,
PAQUETE-HABANA and LOLA PRECEDENT CASE
GR No. 159618, 1 Feb 2011)
➢ Yes. In application to international crimes, “jus
cogens
crimes
fundamental
to
have
the
been
existence
deemed
of
a
so
just
international legal order that states cannot
derogate from them, even by agreement.
❖ This is the precedent case of the United States and
their acknowledgement of international customary
laws as part of the law of their nation. Coastal fishing
boats Paquete Habana and Lola who were manned
by Spanish owners were seized by US blockading
squadron. The issue at hand rests on the jurisdiction
❖ General Principles of Law
to hear the case and the legality of the capture.
Initially, the Supreme Court is given the proper
jurisdiction to hear the case as per Act of 1891 which
demolished the pecuniary limit on appellate powers
Germany and
➢ Italy causing the inevitable downfall of the
Britain.
and solely focused on the matters at hand. On the
➢ US was limited in extending their help due to the
issue of legality of the seizure, the Court ruled
newly signed Neutrality Act which prohibited the
negatively. Provided that it is a long customary
shipments of arms from US to any combatant
practice between nations who are at war to prevent
nations.
the capture of fishermen due to the humanitarian
➢ If Britain were to lose in the war however, it will
reasons behind it. This practice has been established
pose a direct threat to the US due to the colonial
since 1403 and therefore is considered to be a
islands near America. Thus, the Hull-Lothian
custom binding to the nations. The seizure was
Agreement was signed by Roosevelt.
therefore declared to be unlawful and without
probable cause.
➢ The agreement traded America’s destroyers to
British lands and properties used for the
establishment of the naval and air bases without
FILARTIGA v. PENA-IRALA
rent for 99 years.
❖ The case of Filartiga v Pena-Irala concerns the
death and torture of Joelito Filartiga due to political
CHAPTER 3: THE INTERNATIOPNAL COMMUNITY
disputes between the accused and the plaintiffs.
Despite both the persons and event of the crime
committed in Paraguay, the U.S. Courts admitted
jurisdiction to the case on the reason that torture is a
universally accepted tort and therefore must give a
remedy appropriate to the ends and reflective of the
intent of the law of nations especially the Declaration
on the Protection of All Persons from Being
Subjected to Torture. Therefore the Court ruled in
❖ The International Community
➢ The body of juridical entities which are governed
by the laws of nations.
➢ Composed by states and all other entities
granted an international personality.
❖ Subject of International Law
➢ Entity that has rights and responsibilities under
the law
favor of the plaintiffs and awarded them punitive
➢ Has an international personality and can directly
damages to emphasize the gravity of the crime
assert rights and be held responsible under the
committed.
law of nations.
➢ Has the faculty of motivation; can be involved in
HULL LOTHIAN AGREEMENT
transactions.
❖ With the fall of France in June, 1940, President
❖ Object of International Law
Roosevelt entered into two executive agreements
➢ Person of thing in respect of which rights are
the total effect of which was to transform the role of
held and obligations are assumed by the
the United States from one of strict neutrality toward
subject.
the European war to one of semi-belligerency. The
first agreement was with Canada and provided for
➢ Not directly governed by international law.
■ Its rights are received and its responsibilities
the creation of a Permanent Joint Board on Defense
which would “consider in the broad sense the
defense
of
the
north
half
of
the
imposed indirectly.
❖ Development of the International Community
Western
➢ Peace of Westphalia (1648)- signaled the
Hemisphere.” Second, and more important than the
beginning of the International Community among
first, was the Hull-Lothian Agreement of September
the Christian states of Europe.
2, 1940, under which, in return for the lease for
➢ Treaty of Paris (1865)- the Ottoman Empire was
ninety-nine years of certain sites for naval bases in
admitted
the British West Atlantic, the United States handed
non-Christian state.
over to the British Government fifty over-age
to
the
community,
the
first
❖ States
destroyers which had been reconditioned and
➢ A group of people living together in a definite
recommissioned. And on April 9, 1941, the State
territory under an independent government
Department, in consideration of the just-completed
organized for political ends and capable of
German occupation of Denmark, entered into an
entering into international relations.
executive agreement with the Danish minister in
➢ State is recognized as a legal concept while
Washington, whereby the United States acquired the
nation is used to refer to a racial and/or ethnic
right to occupy Greenland for purposes of defense.
concept of belongingness.
➢ During
the
WWII,
France
surrendered
to
❖ 4 Elements of State:
4. Sovereignty
1. People
➢ The power of the state to direct its own external
➢ Element of the state which refers to the human
beings living within its territory.
other states.
➢ Should be of both sexes and sufficient in number
to maintain and perpetuate.
enough to be self sufficient
to
be
➢ Internal Sovereignty- the exercise of supreme
control over all citizens, organizations, and
➢ It must be small enough to be ruled and big
➢ Subjects
affairs without interference of dictation from
associations within the state's territory.
➢ External Sovereignty- the equal power every
governed
is
capable
of
maintaining Existence of community (must be
state possess to exercise their authority within a
territory without any external interference.
able to multiply)
➢ Indigenous
Peoples-
groups
with
distinct
Capacity of State
cultures, histories, and connections to land that
➢ The recognition of a state in the international
have been forcibly incorporated into a larger
community however does not automatically follow
governing society.
after the 4 elements are acquired. It must obtain:
■ They
are
entitled
to
internal
self-determination but not to the general
a. Recognition of other states
b. Capacity to discharge international obligations.
right of secession or independence.
➢ Right to Self-determination- all people are
entitled to freely determine their political status
CLASSIFICATIONS
OF
STATES: Independent v.
Dependent States
and freely pursue their economic, social, and
cultural development.
■ Internal
❖ Independent State- a state not subject to dictation
Self-determination-
people’s
pursuit of its political, economic, social, and
cultural development within the framework of
an existing state
from others.
➢ Simple State- placed under one single and
centralized government.
➢ Composite State- two or more states with
■ External Self-determination- establishment
of a sovereign and independent State, the
free association or integration with an
separate government but bound under a central
authority.
■
Real Union- when 2 or more states are
independent State or the emergence into
merged under a unifies authority so that they
any other political status freely determined
form a single international person.
by the people.
■ Federal Union- a combination of 2 or more
states which upon merger creates a new
2. Territory
international personality
➢ The fixed portion of the surface of the earth in
which the people of the state reside.
■ Confederation- organization of 2 or more
states which retain their internal sovereignty
➢ Is the land over which the state exercises its
and
to
some
degree
their
external
control, including the bodies of water and air
sovereignty while delegating to the collective
space abovee
body power to represent them as a whole.
➢ Necessary to provide for the needs of the
■ Personal Union- when 2 or more states are
inhabitants; it should be big enough to be self-
merged under one monarch but retains their
sufficient
individual international personalities.
and small enough to be easily
administered and defended.
■ Incorporate Union- union of two or more
3. Government
states under s central authority empowered
➢ The agency through which the will of the state is
formulates, expressed, and realized.
affairs
➢ Entity to represent it in its relations with other
states.
and
possessed
of
a
separate
international personality.
❖ Neutralized States
■ De Jure Government - Is a legitimate
government
to direct both their internal and external
based
on
the
existing
constitution or law of the land.
■ De Facto Government - Is an illegitimate
government established by the defiance of
the legitimate government or the constitution
➢ states who have signed agreements to maintain
their integrity and independence provided that
they will refrain from taking any act that will
involve it in hostilities or war.
❖ Dependent States
➢ recognized states but are subject to the control
➢ As such, it has no legal standing in the family of
of other states in the direction of their external
nations. Such entities have been allowed on
affairs.
occasion to participate in their own right in
➢ Falls into two categories; protectorate and
suzerainty.
international undertakings and practically granted
a sovereign status.
➢ When acting in this capacity, on the occasions
PROTECTORATE
they are allowed to, is when colonies and
SUZERAINTY
dependencies
is
established
at
are
considered
international
persons.
the
a result of a concession
request of the weaker
from a state to a former
state for the protection by
colony that is allowed to
➢ The system of mandates was established after
string power
be independent subject to
the World War I in order to avoid outright
the
❖ Mandates and Territories
by
the
annexation of the underdeveloped territories
sovereign
of
taken from the defeated powers and to place their
certain power over the
administration under some forms of international
external
supervision.
retention
former
affairs
of the
➢ Kinds of trust territories:
latter
■ Those held under the mandate under the
league of nations
■ Those territories detached from the defeated
❖ United Nations
states after World War II
➢ UN is not a state or a super state but a mere
organization of states, it is regarded as an
■ Those voluntarily placed under the system by
the states responsible for their administration.
international person for certain purposes.
➢ (UN Charter, Art. 105; General Convention on the
Immunities and Privileges of the United Nations
➢ A belligerent community may be described as a
group
■ Non-suability
■ Inviolability of its premise and archives; and
■ The right of legation and its diplomatic agents
possess
the
under
an
organized
civil
same
■ The upheaval is ordinarily regarded as a
merely internal affair, at least during its initial
privileges
stages. The state is held responsible for all
injuries caused upon third states.
❖ The Vatican City
➢ The holy see has all the constituent element of
(people,
rebels
government who have taken up arms against the
accorded regular envoys.
statehood
of
legitimate government.
■ Exemption from taxation.
generally
❖ Belligerent Communities
territory:
108.7
■ For the purpose of the conflict, and pending
determination
acres;
of February 11,1929, which constitutes the
diplomatic intercourse, immunity from foreign
jurisdiction.
➢ Is the vatican city a state?
■ There is no clear consensus on this matter,
the Vatican City exercises certain rights that
are generally reserved for states, such as the
❖ Colonies and Dependencies
➢ From the viewpoint of international law: a colony
or a dependency is part and parcel of the parent
state, through which all its external relations are
transacted with other states.
the
subjects to the laws of war and neutrality
❖ International Administrative Bodies
➢ Created by agreement among states may be
vested with international personality when two
conditions concur:
■ that their purposes are mainly non-political
■
having the freedom to govern
and that they are autonomous. itself or control its own affairs.
● Examples:
organization,
international
food
and
labor
agricultural
organization, world health organization
treaties, and there are a considerable number
of the international community.
not
■ international persons and becomes directly
right of legation and the right to enter into
of states that have recognized it as a member
or
■ recognized as a state, itis treated as an
Vatican as a territory under the sovereignty of the
Holy See. It has all the right of a state, including
whether
belligerent community should fully
government with the pope as head; and
independence by virtue of the Lateran Treaty
of
❖ Individuals
➢ Individual only as an object of international law
who can act only through the instrumentality of
his own state in matters involving others states
■ If an individual is injured, for example, by
reason of a wrong imputable to a foreign
jurisdiction, he can secure redress under
international law only through the assistance
■ Attainment of Civilization: epresent not
and representation of his own state.
just a historical territory, ethnolinguistic
group, or body of governance, but a unique
CHAPTER 5: THE CONCEPT OF THE STATE
civilization in its own right.
❖ As the BASIC UNIT of international community, the
state is the principal subject of international law.
❖ Principle of State Continuity
➢ The
❖ Creation of the State
continues
as
juristic
being
notwithstanding changes in its circumstances,
➢ An entity acquiring the four essential elements of
people,
state
territory,
government,
provided only that they do not result in loss of
and
sovereignty is regarded as having achieved the
status of state; therefore, be treated as an
any of its essential elements
❖ Extinction of States
➢ It is possible for a state to be extinguished, or
international person
die
➢ Generally accepted methods by achieving this
➢
May be wiped out by an epidemic or
status is acquired by: revolution, unification,
thermonuclear explosion, emigrate en masse, by
secession,
loss of territory, by overthrow of government
assertion
of
independence,
agreement and attainment of civilization
➢ The United States was created as a result of
revolution against British rule of the 13 original
colonies that first formed a confederation in
1781 and then a federation in 1789
resulting in anarchy
➢ State may be merged with another state
❖ Succession of States
➢ Takes place when one state assumes the rights
and some of the obligations of another because
■ Revolution: a forcible overthrow of a
government or social order, in favor of a new
system.
of certain changes in the condition of the latter.
May be either:
■ Universal succession: when a state is
➢ The state of Italy was created out of unification
annexed
to
another
state
or is total
of the independent city states of Sardinia,
dismembered or merges with another state
Florence, Naples, Rome and others in 1870
to form a new state
under the so-called principle of nationalities
■ Partial succession - takes place when a
■ Unification: the process of being united or
portion of the territory of the states or is
made into a whole. In other words, the
ceded to another or when an independent
process by which two or more countries join
state becomes a protectorate or a suzerainty
together and become one country.
or
➢ Bangladesh became a separate state when it
seceded from Pakistan in 1971
■ Secession:
he
action
when
dependent
state
acquire full
sovereignty.
❖ Consequences of State Succession
of
withdrawing
➢ Allegiance of the inhabitants of the predecessor
formally from membership of a federation or
state in the territory affected is transferred to the
body, especially a political state.
successor state, they are also naturalized en
➢ Philippines became a state by assertion of
independence following the formal withdrawal
therefrom of America sovereignty in 1946
■ Assertion of Independence: the action of
masse.
■ Political law of the former are automatically
abrogated and may be restored only by a
positive
act on the part of the new
stating something or exercising authority
sovereign. But non-political laws, such as
confidently and forcefully.
those dealing with familiar relations, are
➢ The Kingdom of Netherlands was created by the
deemed continued unless they are changed
Congress of Vienna of 1815, and Poland, more
by the new sovereign or are contrary to the
recently was revived as a separate state by
institution of the successor state
agreement of the victorious powers after World
War II
■ Agreement:
■ Treaties of a political and even commercial
nature, as well as treaties of extradition, are
decision
or
arrangement
also discontinued, except those dealing with
between two or more people or groups to do
local rights and duties, such as those
something or to obey the same rules
establishing easement and servitudes
➢ Japan became an international person by
attainment of civilization
■ All the rights of predecessor state are
inherited by the successor state but this is
not so where liabilities are concerned
❖ Succession of Government
■ recognition by other states is a confirmation
➢ Where one government replaces another either
or declaration of a pre-existing statehood.
peacefully or by violent methods. In both
■ Implication (Formal Acknowledgement) :
instances, the integrity of the state is not
Under declaratory theory, the statehood of a
affected; the state continues as the same
new entity is considered to come into
international person except only that its lawful
existence as soon as it meets the criteria of
representative is changed
statehood
➢ The rights of the predecessor government are
➢ Constitutive (minority view) - Recognition is
concerned; they are inherited in toto by the
constitutive and compulsory or legal, meaning
successor government
that it is the act of recognition that constitutes
➢ Where the new government was organized by
the recognized entity into an international person
virtue of a constitutional reform duly ratified in
and that such act may be compelled once
plebiscite,
elements
the
obligations of the replaced
government are completely by the former
of
international
personality
are
established.
➢ Where the new government was established
through violence as by a revolution, it may
■ comes into existence only when it is
recognized by other states
lawfully reject the purely personal or political
■ Implication: the act of recognition is not just
obligations of the predecessor government but
a confirmation of an existing statehood; it is
not contracted by it in the ordinary course of
a crucial element in the creation of the state
business
itself.
CHAPTER 6: RECOGNITION
❖ Objects of Recognition
➢ Recognition of a state
❖ Recognition
■ Held irrevocable and imports the recognition
➢ An act by which a state acknowledges the
existence of another state, a government, or a
belligerent
community
and
indicates
of the government
➢ Recognition of a government
its
■ May be withdrawn and does not necessary
willingness to deal with the entity as such under
signify the existence of a state as the
the rules of international law.
government may be that of a mere colony
■ Even if an entity possesses all the elements
of an international personality, it is not for
➢ Recognition of belligerency
■ Does not produce the same effect as the
this reason alone automatically entitled to
recognition
membership in the family of nations.
because
■ Its
admission
is
dependent
on
the
acknowledgement of its status by those
already within the fold and their willingness
to enter into relations with it as a subject of
international law.
of
the
states and governments
rebels
are
accorded
international personality only in connection
with the hostilities they are waging
❖ Kind of Recognition
➢ Express
■ May be verbal or in writing. It may be
● Meaning the extent of its membership is
extended through a formal proclamation or
dependent on the number of states
announcement, a stipulation in a treaty, a
prepared to admit it
letter or telegram, or on the occasion of an
● It is political act and mainly a matter of
policy on the part of each state
official call or conference.
➢ Implied
● It is exercised by the political executive
department of each state
■ When the recognizing states enters into
officials intercourse with the new member by
● The legality and wisdom of recognition
is not subject to judicial review.
exhanging dimplomatic representatives with
it
● acknowledgment or acceptance of the
❖ Theories on Recognition:
existence of a state or government by a
➢ Declaratory (majority view) - recognition is
declaratory
and
discretionary
or
political,
state
without
explicit
or
formal
declaration
meaning it affirms the pre-exising fact that the
■ In the case of a belligerent community
entity being recognized already possess the
recognition is implied when the legitimate
status of an international person.
government blockades port held by the
former
or
when
other
states observe
these conditions, it will be recgnized as de
neutrality in the conflict
● When
the
facto.
legitimate
government
➢ Kinds of De Facto Government
blockades a port held by a belligerent
■ That which is established by the inhabitants
community, it can be interpreted as an
who rise in revolt against and depose the
implicit
legitimate regime
acknowledgment
existence
significance
the
of
the
■ That which is established in the course of
act
of
war by the invading forces of one belliegrent
blockading suggests that the legitimate
in the territory of the other belligerent, the
government recognizes the belligerent
governement of which is also displaced.
belligerent
and
of
community.
The
community as a distinct and influential
■ That which is established by the inhabitant
entity with control over the port.
of a state who secede therefrom without
● The blockade may be a strategic or
military response to curb the activities of
overthrowing its government
➢ RECOGNIGTION DE JURE v. DE FACTO
the belligerent community
DE JURE
DE FACTO
❖ The act constituting recognition shall give a
clear indication of an intention:
➢ To treat with the new state as such
➢ To accept the new government as having
authority to represent the state it purports to
govern and to maintain diplomatic relations with
Relatively Permanent
Provisional
Vests title in the
government to its
properties abroad
Does not title in the
government to its
properties abroad
Brings
about
full
diplomatic relations
Limited to certain
jurdicial relations
it
➢ To recognize in the case of insurgent that they
are entitled to exercise belligerent rights.
Government
❖ Recognition of States
➢ Full dimplomatic relations are established except
➢ Is the free act by which one or more states
acknowledge the existence on a definite territory
of
a
human
society
politically
organized,
independent of any existing state, and capable if
observing the obligations of international law
❖ Recognition of Governments
acknowledge 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
existence
of
a
state
as the
government may be that of a mere colony
➢ Premature recognition may lead to international
misunderstanding if the new government has
been established through violent methods.
➢ Criteria for Recognition of a Government:
States extend their recognition to a new
government only when it appears that
■ It
has
machinery
control
of
of
the
➢ The recognized state or government acquire the
right to sue in courts of recognizing state
➢ The recognized state or government has a right
to possession of properties of predecessor in the
the
state
are
validated
retroactively,
preventing
the
recognizing state from passing upon their
legality in its own courts
➢ Belligerency exists when the inhabitants of a
state rise up in arms for the purpose of
overthrowing the legitimate government
➢ In the first place, insurgency is the initial stage,
which is more serious and widespread. In the
second place, insurgency is directed by military
authoritites whereas belligerency is under a civil
government. Finally, insurgency is usually not
recognized whereas there are settled rules
administrative
with
➢ All acts of the recognized state or government
❖ Recognition of Belligerency
➢ May be withdrawn and does not necessary
the
where the government recognized is de facto
territory of the recognizing state
➢ Is the free act by which one or several states
signify
❖ Effects of the Recognition of the State and the
popular
acquiescence
■ It is willing and able to comply with its
international obligations
■ A government satisfying all requirements is
recognized as de jure. It it has not yet
sufficiently demonstrated compliance with
regarding the recognition of belliegrency
➢ Does not produce the same effect as the
recognition of states and government because
the rebels are accorded international personality
only in connection with the hostilities they are
waging.
❖ Condition for Recognition of Belligerency
➢ There must be an organized civil government
directing the rebel forces
➢ The rebels must occupy a substantial portion of
the territory of the state
➢ The conflict between the legitimate government
and the rebls must be serious, making the
outcome uncertain
➢ The rebels must be willing and able to observe
the laws of war
❖ Consequences of Recognition of Belligerency
➢ Responsibility for acts of rebels resulting to
an offensive military capability in cuba,
including bases for balistic missiles with a
potential range covering most of north and south
america
❖ Regional Arrangements
➢ In
summary,
regional
arrangements
under
international law are mechanisms through which
countries
in
a
specific
geographic
area
collaborate to address common challenges.
injury to nationals of recognizing state shall be
These
shifted to rebel government
framework of international law, and their legal
➢ The legitimate government recognizing the rebel
arrangements
operate
within
basis is defined by treaties and agreements that
as belligerents shall observe laws or customs of
establish
war in conducting hostilities
functions of the regional organization.
➢ States recognizing belligerency should main
neutrality
➢ Recognition is only provisional and only for
purpose of hostilities.
the
the
principles,
objectives,
and
➢ Collective self defense is recognized not only
in article 51 of the charter but also impliedly in
Article VII on regional arrangements
■ Collective self-defense is a concept in
international law that refers to the right of a
CHAPTER 7: THE RIGHT OF EXISTENCE AND SELF
group of states to take collective action in
DEFENSE
response to an armed attack against one or
more of their members
❖ The right of existence and self defense is the
most important right of a state and has also been
➢ Ex. Organization of American States
❖ The Balance of Power
described as the most comprehensive, as all other
➢ An arrangement of affair so that no state shall be
rights of the state flow from it. The United Nations
in a position to have absolute mastery and
Charter recognizes the right to existence and self
dominion over others.
defense in Article 51.
➢ Once a state comes into being, it is invested
with certain rights described as fundamental
➢ It is important because all of its other rights are
supposed to flow or be derived from it.
❖ Requisites/ Conditions for the Proper Exercise
of the Right of Self Defense
➢ The presence of an Armed attack to justify the
exercise of the right of self-defense may be
taken by a state only in the face of a necessity of
self-defense that is instant, overwhelming, and
leaving no choice of means and no moment for
deliberation. This right may be resorted only
upon a clear showing of a grave and actual
danger to the security of the state.
■ Self-defensive action taken by the attacked
state must reported immediately to the
security council
■ Such action shall not in any way affect the
■ One reason for the ogranization of regional
arrangements is to provide for the balance
of power
❖ Agression
➢ Use of armed force by a state against:
■ Sovereignty
■ Territorial integrity
■ Political independence of other state
■ First use of armed forces shall constitute
prima facie evidence of aggression
■ Manner incosistent with the UN charter
❖ Qualify As an Act of Agression
➢ Invasion or attack by armed forces of a state of
the territory of another state
➢ Bombardment of armed forces
➢ The blockade or parts/ coasts of a state by the
armed forces of another state
➢ Attack of sea, air forces, land, etc.
➢ Use of armed forces within the territory of
right of the security council to take at any
another
time such action as it deems necessary to
receiving
maintain or restore international peace and
conditions provided for in the agreement or any
security
extension of their presence in such territory
❖ The Cuban Missile Crisis
beyond the termination of the agreement. (Pacta
➢ “The peace of the world and the security of the
state
with the agreement of the
state,
in
contravention
of
the
sunt servanda)
United States had been endagered by reason of
➢ The sending by on behalf of a state or armed
the establishment by the Sino-soviet powers of
forces against another state of such gravity as to
amount
to
the
acts
listed above, or its
substantial involvement therein.
➢ No, independence means only freedom from
control by any other state, not freedom from the
❖ Intervention
restrictions that are binding upon all states.
➢ An act by which a state interferes with the
domestic or foreign affairs of another state
through the use of force or threat of force
❖ Correelative duty of the Right of Independence
➢ Every state is under correlative obligation of
non-intervention in view of its own independence.
➢ State must abstain from intervention. It expects
Even as it expects its independence to be
its independence to be respected by other
respected by other states, it must be prepared to
states, so too must it be prepared to respect
respect their own independence.
their own independence.
➢ Right
■ In
of independence carries with its duty of
non-intervention
simpler
terms,
The
correlative
duty
associated with the right of independence is
essentially the responsibility of other nations to
➢ 2 instances when the use of force is allowed
under the Charter of the UN:
respect and recognize the sovereignty and
self-determination of a particular nation.
■ When such action is agreed upon in a treaty
■ When requested from sister states or from
the UN
❖ Ideal of Independence
➢ Particularly during the period following the last
World War, a resurgent spirit of nationalism and
❖ Can intervention be justified on the ground of
self-defense?
the
principle
of
self-determination
gave
unprecedented impetus to the attainment of
➢ Self defense is the only accepted justification
freedom by a number of colonies and their
under present international law for intervention
subsequent
on the part of particular states. However, it may
community. It may be said that this trend had its
also be undertaken by the security council for
auspicious beginning with the establishment of
the maintenance of international peace and
the Republic of the Philippines in 1946 and its
security, as a measure against oppression, and
ready recognition by the family of nations.
on humintarian grounds.
admission
to
the
international
❖ Nature of Independence
➢ Freedom from control by any other state or group
CHAPTER 8: THE RIGHT OF INDEPENDENCE AND
of states and not freedom from the restrictions
SOVEREIGNTY
that are binding on all states forming the family of
nations.
❖ Independence
➢ Must submit to limitations, independence of a
➢ Right of national self-government, the freedom of
state is of necessity restricted.
a state from control by another state, or the right
➢ Ex. A state may not employ force or even the
of a state to direct both its internal and external
threat of force in its relations with other states
affairs without interference from other states.
because this is prohibited by article 2 of the
■ Independence
is
not
synonymous
with
sovereignty as the latter is the broader term
❖ Sovereignty
➢ It
is
good faith in accordance with the maxim pacta
sunt servanda
the
SUPREME,
uncontrollable
power
inherent in a state, the supreme power of the
state to command and enforce obedience
other
competence
to
states
and
enter
into
vests
❖ The Drago Doctrine
➢ A public debt cannot give rise to the right of
intervention
➢ Enables the state to make its own decision
vis-a-vis
charter. It may not refuse to observe treaties in
➢ In 1902, Great Britain, Italy, and Germany
it
with
established a blockade against Venezuela in
relation
and
order to force it to comply with certain contractual
agreements with them
➢ 2 aspects:
■ Internal Sovereignty: power of the state to
direct its domestic affairs.
and other obligations owing to its blockading
powers.
■ The contracting powers agree not to have
recourse to armed force for the recovery of
■ External Sovereignty: the freedom of the
contract debts claimed from the government of
state to control its own foreign affairs. It is
one country by the government of another
more often referred to as independence.
country as being due to its nationals.
❖ Can a state’s independence be absolute?
■ This doctrine was embodied in the Hague
Convention of 1907
CHAPTER 9: THE RIGHT OF EQUALITY
speaking, as the vote cast by Gabon, the
❖ Every state is entitled to the same protection and
respect as are available to other states under the
rules of international law. The right of equality is
recognized in Article 2 of the UN Charter.
rights, and have equal capacity in their exercise.
➢ The right to equality is not absolute: The
rights of each one do not depend upon the
simple fact of its existence as a person under
international law
iinfluence or economics status or prestige
➢ Equality does not even require equality in the
number of rights
must
be
observed and
respected
➢ Indicated with precision as its limits define the
state’s jurisdiction
➢ Big enough to provide for the needs of the
❖ The Philippines has promised not to use war to
expand its territory. However, like other countries, it
can still gain more land or rights using methods
❖ The right to acquire territories is regarded as one
of the fundamental attributes of the state
➢ Under our constitution, the authority to exercise
■ All states, big or small have an equal right to
enjoyment
of
all
their
respective
attributes as members of the family of
nations
strongest
this is inferred from congress war powers and
the President’s treaty making power.
➢ This right can only be asserted in accordance
with
■ “Par in paren non habet imperium” - even
the
➢ Permanent
allowed by international law.
➢ PRINCIPLE: All the rights of a state, regardless
the
❖ It must be:
to administer or defend from external aggression
➢ Does not signify parity in physical power political
number,
❖ Fixed portion of the surface of the earth inhabited by
population, but not too big that it will be difficult
❖ Essence of Equality
their
CHAPTER 10: TERRITORY
the people of the state
➢ States are jurdicially equal, enjoy the same
of
population of which is only about 2.2 million
state
cannot
assume
jurisdiction over another state, no matter
generally
accepted
principles
of
international law and with regard to the territorial
integrity of other states.
❖ Montevideo Convention
how weak, or question the validity its acts in
➢ When countries make agreements (contracting
so far as they are made to take effect within
states), they agree not to accept or acknowledge
its ow territory.
any land that another country gained through
❖ Legal Equality v. Factual Inequality
force or threats. They firmly state that a
➢ Legal Equality: Legal equality emphasizes the
country's territory is sacred and cannot be
idea that every person is treated equally under
occupied or controlled by force, whether through
the law. Regardless of individual characteristics
military actions or any other coercive methods,
such as race, gender, religion, or social status
even temporarily. This is a commitment to
➢ Fcatual Inequality: factual inequality refers to the
actual differences in social, economic, or political
circumstances that individuals may experience,
despite legal equality.
respect the inviolability of a nation's territory.
❖ Acquisition and Loss of Territory
➢ Territory may be acquired by:
■ Discovery
➢ Not all states have equal eligibility with regard to
■ Occupation
elective membership of the security council, as it
■ Subjugation
is provided in the 1065 amendments to the
■ Prescription
charter that such members are to be distributed,
■ Cession
and not equally at that, among several specified
■ Accretion
regions
■ 5 of them must be elected from the african
➢ Territory may be lost by:
■ Abandonment
and asian states and only 1 can come from
■ Dereliction
the easter european states.
■ Cession
■ Ex. Ex. In the General Assembly, all
■ Revolution
members have one vote regardless of the
■ Subjugation
number of people they separately represent,
■ Prescription
with the result that the decision of India,
■ Erosion
which has a population of more than one
■ Natural causes
billion, would have the same force, legally
❖ Discovery and Occupation
➢ Original mode of the acquisition by which
claim) cannot override the continuous and
territory not belonging to any state, or terra
peaceful exercise of authority by another
nullius, is placed under the sovereignty of the
state. This means that even if a state claims
discovering state
to have a prior, though incomplete, title,
➢ In international law, a country can claim territory
through
the
occupation
processes
even
if
it
of
discovery
another state's ongoing and peaceful control
and
can take precedence over it. In essence,
is not uninhabited.
actions and continuous authority carry more
However, if the inhabitants are considered not
weight than a simple claim of discovery.
sufficiently civilized, they might be seen as
■ Clipperton Island Case: France claimed
having rights to live there but not full sovereignty
ownership of an island that it formally
rights. This means that the claiming state
declared but had never actively governed.
believes it has the right to govern and control the
The key point was that, even though France
territory.
hadn't administered the island, the formal
➢ The principles of discovery and occupation do
claim was enough to establish ownership.
not apply to open seas and outer space. Unlike
The sovereign, by proclamation, declared
land territories, these areas are not considered
that the island belonged to the French
subject to claims of discovery and occupation.
monarchy.
❖2
They are seen as belonging to the global
■ if a territory is completely uninhabited, the
commons, and no single country can assert
moment an occupying state arrives, it is
sovereignty over them using these historical
considered to possess the territory absolutely
methods.
and without dispute. In such cases, the act of
Requisited
of
a
Valid
Discovery
and
taking possession is seen as completed from
Occupation
the very beginning, and the occupation is
➢ Possesion
formally
➢ Administration
formal claim or the simple act of arriving on
■ It is When a state wants to claim possession
Essentially,
the
an uninhabited island can be sufficient to
of a territory, it's not enough to just physically
be there. They need to make a formal
acknowledged.
establish ownership.
➢ Dereliction
declaration, usually through a proclamation,
■ Territory is lost by deriliction when the state
and symbolically raise their national flag in
exercising sovereignty over it physically
that territory.
withdraws from it with the intention of
■ This formal act of administration is necessary
to assert the state's authority and ownership
abandoning it altogether
■ Conditions:
over the land. Simply being present in the
● Acts of withdrawal
territory
● Intention to abandon
without
this
official
claim
and
symbolic act is not
➢ Prescription
■ Inchoate title of discovery: An inchoate title
■
In international law, prescription means
of discovery serves as a kind of preliminary
gaining ownership of a territory through long,
claim. It prevents other states from entering
continuous, and adverse possession. For this
the discovered territory for a certain period.
to happen, the claimant must have control
During this time, the discovering state has the
over the territory for an extended period.
opportunity to establish a settlement on the
■ There is no specific rule in international law
land and start administering it. Essentially, it's
that sets a fixed period of possession
like a temporary hold or right that gives the
required to transfer ownership from the
discovering state a chance to solidify its claim
previous sovereign to the new one. The
to the territory.
duration needed for adverse possession to
■ Island of Palmas Case: In the Island of
Palmas case, it was argued that merely
discovering an island is not enough to prove
ownership. The court emphasized that a
claim
of
actions,
discovery,
is
sovereignty.
without any further
insufficient
to
establish
result in a change of ownership is not
explicitly defined.
➢ Cession
■ Method by which territory is transferred from
one state to another by agreement between
them.
Additionally, the concept of
■ Acquisition of territory by cession is usually
"inchoate title" (a preliminary or incomplete
effected by such familiar transaction as sale,
donation, barter or exchange, and even by
in international law related to the
testamentary disposition.
determination of maritime boundaries,
■ Ex. the purchase by the US of Alaska from
particularly
in
rivers.
The
term
Russia in 1867, and the gift of Austria of
"thalweg" is of German origin and
Lombardy to France in 1859
translates to "valley way" or "valley
➢ Subjugation
■A
path" in English.
territory
is
considered
acquired
by
The
◆
doctrine
holds
that
the
subjugation when, after being conquered or
boundary line between two states
occupied during a war, it is formally annexed
situated on opposite riverbanks is
(officially added) to the conquering state at
located along the deepest and often
the war's conclusion.
the main navigable channel (thalweg)
■ Just conquering the territory doesn't establish
full
ownership;
it's
the
formal
act
of the river. In essence, it follows the
of
line of the deepest point along the
annexation that completes the acquisition
process. So, conquest alone gives the
river's course.
■ Bays:
well
marked
indentation
whose
occupying state a preliminary or inchoate
penetration is in such proportion to the width
right, and the formal annexation finalizes the
of its mouth as to contain land-locked waters
acquisition of the territory.
and constitute more than a mere curvature of
➢ Accretion
the coast
■ The mode of acquiring territory based on the
principle
of
accession
cedat
➢ The Territorial Sea
principali
■ belt of waters adjacent to the coasts of the
involves both natural and artificial processes.
state, excluding the internal waters in bays
This can happen gradually, like when soil
and
builds up along the coast through the action
sovereignty an jurisdiction
of water, or more actively through human
projects, like land reclamation in places such
as Manila Bay or the polders in Holland.
gulf, over which the state claims
➢ The UN Conference on the Law of Sea
■ The United Nations Convention on the Law of
the Sea (UNCLOS) is an international treaty
■ On the flip side, territory can be lost due to
that establishes a comprehensive framework
natural events. For instance, if an island sinks
for the governance of the world's oceans and
to the bottom of the sea because of a
seas. UNCLOS was adopted on December
volcanic
10,
eruption, that loss of land is
considered a result of natural processes.
1982,
and
entered
into
force
on
November 16, 1994. It is often referred to as
❖ Components of Territory
the "Constitution for the Oceans" due to its
➢ Terresterial Domain
extensive coverage of maritime issues.
■ Refers to land mass; which may be integrate
■ The UN Conference on the Law of the Sea
or dismembered, may be composed of
involved three international conferences to
islands
create a new set of rules for governing the
➢ Mairitme and Fluvial Domain
world's oceans. The first conference took
■ Consists of bodies of water within the land
place in 1958 in Geneva, Switzerland. During
mass and the waters adjacent to the coasts
this conference, several key conventions
of the state up to a specified limit
were adopted, including the Convention on
■ Rivers may be classified into:
● National:
situated
completely
the Territorial Sea and the Contiguous Zone,
in
the
territory of one state
● Multi-national: flow through the territories
of several states
the Convention on the High Seas, the
Convention on the Fishing and the Living
Resources of the High Seas, and the
Convention on the Continental Shelf.
● International: is navigable from the open
■ The new conventions established important
sea and is open to use of vessels from all
principles. For instance, they set a standard
states
width of 12 miles for the territorial sea, which
● Boundary: divided the territories of the
riparian states
◆
Thalweg Doctrine: The Thalweg
is the area adjacent to a country's coast.
Additionally, they introduced the concept of
an
economic
zone
or patrimonial sea,
Doctrine, also known as the "thalweg
extending 200 miles from the low-watermark
principle" or "thalweg rule," is a concept
of the coastal state. This economic zone
allows the coastal state to have certain rights
over the resources within that zone.
➢ The Philippine Territorial Sea
■ The claim of the Philippines to its territorial
sea was based on historic right or title or as it
often called, the treaty limits theory
➢ The Archipelago Doctrine
■ The philippine positon in thee definition of its
internal waters is commonly known as the
archipelago doctrine. This is articulated in the
second sentence of Article 1, Section of the
1987 constitution
■ Basis of Article 1 of the 1987 Constitution:
In simple terms, this statement means that
when defining the baselines (reference lines)
for the territorial sea around the Philippines,
the
law
doesn't
affect
the
delineation
(establishment) of baselines around the
territory of Sabah in North Borneo. It asserts
that the Philippines has acquired control and
ownership over Sabah, and this is separate
from the baselines defined for the Philippine
Archipelago.
➢ Methods of Defining Territorial Sea
■ Normal Baseline Mehtod: the territorial sea
is simply drawn from the low-watermark of
the coast, to the breadth claimed, the
following its sinuosities and curvatures but
excluding the internal waters in bays and
gulfs
■ Straight Baseline Method: straight ines are
made to connect appropriate point on the
coast without departing radically from its
general direction
● Fisheries Case: the UK questioned the
use by norway of the straight baseline
method defining its territorial waters
➢ Aerial Domain
■ The airspace above the terrestrial domain
and the maritime and fluvial domain of the
state,
to an unlimited altitude but not
including outer space