DEFINITIONS OF INTERNATIONAL LAW: (8) Thirdly, international law has judicial sanctions

 Public International Law (or the Law of enforced both by international and municipal
Nations) - rules, based on the natural moral tribunals
law and on common consent, which govern (4) Fourthly, at various times in history,
the relations of sovereign States and other international legislation has been enacted example,
 aggregate of various principles, norms and by the United Nations Organization, the International
institutions adjusting the relations of struggle Court of Justice, the Hague Conferences of 1899.
and cooperation
among States International legal system may be said
 (1) WILSON — Public International Law is to consist of:
the body of generally accepted principles (1) natural moral law principles (premised on the
governing relations among States. doing of what is good, and the avoidance of what is
(2) LAWRENCE — Public International Law evil)
may be defined as the rules which determine (2) a set of generally agreed-upon norms of
the conduct of the general body of civilized conduct (whether agreed upon by States expressly,
States in their mutual dealings. as in a treaty, or implicitly, as in the case of
 (3) HACKWORTH — International Law customs);
consists of a body of rules, evolving for the (3) and certain authoritative processes for enacting
most part out of experience and and changing these aforementioned norms (e.g., the
necessity,which governs the relations rule-making processes of the United Nations
between States. Organization).
 (4) McDOUGAL — International Law is not a Private International Law" (or "Conflict of Laws") -
pre-existing body of rules, but a part or the municipal law of a State, which directs its
comprehensive process of authoritative courts and administrative agencies, when confronted
decision in which rules are continuously with a legal problem involving a foreign element,
made and remade. whether or not foreign law or foreign laws will be
 (5) ABBA EBAN — International law is the applied."
law which the wicked do not obey and which TRANSNATIONAL LAW - an emerging body
the righteous do not enforce. of law based upon Universally accepted general
FUNCTIONS OF PUBLIC INTERNATIONAL LAW: principles of law, supplemented by that portion of the
(I) the maintenance of international peace and order: municipal law of disputants applicable in an attempt
a rule of basic discipline among States in a war-weary to resolve conflict.
world; JUS CIVILE- formed part of the foundation for later
(2) the protection of state rights and of fundamental national legal systems of Europe and other parts of
human rights" — thru sanctions, both peaceful and the world. also con tributed many concepts and
coercive; principles now embodied in international law.
(3) the economic, social, cultural, and technological JUS COGENS- preremptory norm ("compelling
development of States and such other entities as may law") is a fundamental principle of international law
be possessed of an international personality which is accepted by the international community of
BASIS OF INTERNATIONAL LAW: states as a norm from which no derogation is ever
1. Natural Law school - voice of conscience, a rule of permitted (non-derogable). Any laws conflicting with
human conduct implanted by God in the very nature it should be considered null and void. Examples:
of man. man is supposed to do whatever is right and include various international crimes, slavery, torture,
to avoid whatever is evil. international law is founded genocide, war of aggression, or crimes against
on the opinions generally received among civilized humanity.
nations, and its duties are enforced only by moral
sanctions by fear on the part of nations or by fear on Article 53 of the 1969 Vienna Convention on the
the part of sovereigns. Law of Treaties -treaty is void if, at the time of its
[Link] school – basis of PIL is common consent conclusion, it conflicts with a peremptory norm of
of states. general international law." treaty cannot modify or
[Link] School- is premised both on the natural evade a norm of jus cogens unless it is done by the
moral law, and on common consent (or rules of international community as a whole.
positive origin. JUS GENTUM-"law of tribes" refers to that body of
Roman (civil) law that applied to all non-Romans in
Competent authority- superior State the Empire as well as dealings between Romans and
whose commands have to be performed by so called non-Romans. jus gentium has provided international
sovereign States. law with many concepts that border on private law,
PIL TRUE LAW: such as contracts, treaties, and property rights and, in
If, however, "competent authority" refers to equal the classical legal literature on "the law of nations,"
States, which observe expressly (thru conventions) which acquired the meaning today of Public intl.
or implicitly (thru customs) common standards of JUS NATURALE- "law of reason". (believed to be of
conduct in their mutual relations, then we dare say divine origin), with its emphasis upon order and
that Public International: reason) , natural law is based upon universal or
(1) Firstly, international law is "discussed by the immutable laws to which all bound simply by the fact
methods appropriate to jurisprudence, and not by that it is the natural order of things.
those of moral philosophy." LEX POSTERIOR DEROGAT PRIORI- subsequent
(2) Secondly, State officials, in arguing for their law abrogates the preceding law, suggests that if a
foreign policies, appeal "not to the general feeling of law explicitly contravenes a prior treaty, or a treaty
moral rightness, but to precedents, to treaties, and to contravenes prior law, or a treaty contravenes a prior
the opinions of specialists." treaty, the courts will apply the most recent
expression of the law.
LACK OF FULL-PLEDGE LEGISLATIVE POWERS (c) Partly because of fear but a disregard of them
attributed to: would
(1) Firstly, States are still somewhat reluctant to in the long run bring evil to them. In certain cases, a
bestow regulative competence on international State
organizations; is compelled to observe these rules thru the use of
(2) Secondly, to achieve its avowed objectives, the UN actual
is more in need, not of legislative power B, but of force or thru threat of the use thereof by other States
executive prerogatives particularly rights which bent on securing strict observance of said rules.
would enable the Organization to initiate and
maintain peace-restoring and peacekeeping PUBLIC MUNICIPAL
operations. INTERNATIONA LAW
CLASSIFICATION OF PUBLIC INTERNATIONAL L LAW
LAW: Principal (a) reprisal (a) civil
According to manner which common sanctions: (b) war execution (in
consent of State has been given (binding effect): Collective civil law)
(1) Conventional International Law — if the responsibility for (b) criminal
consent has been given EXPRESSLY (as in the case of failures and punishment
multipartite covenants and treaties) omissions (in criminal
(2) Customary International Law — if the consent law)
has been IMPLICITLY or TACITLY given (as by Individual individual
continuous acquiescence to international customs) responsibility responsibility
(3) General International Law — if PRESUMABLY generally
consent has been given to the fundamental natural prevails
principles governing international intercourse. Relatively decentralized relatively a
centralized
According to applicability of subject matter, coercive
traditionalists led by Grotius classify the subject into: order (in the
(1) the International Law of Peace; sense that
(2) the International Law of War; one central
the International Law of Neutrality. authority —
the domestic
According to content of subject matter, we have: government
(1) lf International Constitutional Law (this is alone —
essentially political in character, and may be beat generally
exemplified by the UN Charter, and the Treaty of legislates for
Versailles which ended World War I) everybody
within the
International Administrative Law [this is State).
fundamentally technical in scope, and may include comparatively comparatively comparatively
ordinary treaties, customs, and court decisions on: harder to enforce easier to
(a) International Corporation Law; (it being imposed enforce,
(b) International Criminal Law; by the collective because the
(c) International Torts and Damages; will of equals, i.e., people who
(d) International Commercial Law (including trade sovereign States) are the
agreements, and foreign investment legislations); subjects of
(e) International Financial Law the law
(f) International Maritime Law. invariably
recognize the
Particular vs General International law: "superiority"
PARTICULAR International Law may refer to that of the
followed by a particular country. government
GENERAL International Law refers to that recognized
by the family of nations, or the world at large. ASSIGNMENT COMPILATION:
1. State your general understanding of the
States observe Public International J-aw because primary sources and subsidiary sources of
of their: international law, giving an illustration of
(a) belief in the reasonableness of the Law of Nations; each.
(b) fear of being unconventional; Primary Sources
(c) fear of reprisal from other States. A. International Conventions (Treaty Law)
An international agreement concluded between
As a general rule, in their dealings with one states in written form and governed by international
another, States as a matter of policy and at their law, whether embodied in a single instrument or in
own instance,observe the rules of Public two or more related instruments and whatever its
International Law: particular designation.
(a) Partly because of the conscientious conviction Ex. Vienna Convention on the Law of Treaties
that Geneva Convention, Vienna Convention for the
they are good and right; Protection of the Ozone Layer, Convention on climate
(b) Partly because of those subtle influences which change
make it difficult for a man or a body of men to act in
defiance of the strongly held view of those with B. International Customs (Customary Law)
whom they habitually associate;
It consists of rules of law derived from the consistent children. There are laws that require parents to send
conduct of States acting out of the belief that the law their children to school, to assure that they are cared
required them to act that way. for and are living a safe life. The Morality Principle
Ex. Jus Cogens, Genocide is based on the idea of what is right and what is
wrong. Laws balance the idea of right and wrong
C. General Principles of Law hence there are some laws that may read as immoral
These are concepts common to major national legal but there is good in it. Donation Principle, the law
systems. Allowing international judges to rely on does not favor a specific sector nor group hence the
concepts common to the major national legal systems law is for all. The Statist Principle, provides that it
means that where there is a gap in international law would be wrong when the law protects the
the judges have some ability to fill it rather than government from harm or give it more power as it
simply announcing that the case cannot be decided does. Though there are laws that punishes acts of
because no international law currently exists on the treason but it is only there to encourage stability
topic. This has reference not to principles of between the people and the government.
international law but to principles of municipal law
common to the legal systems of the world. Public International Law or the Law of the
Ex. Principle of Estoppel good faith, res judicata, and Nations may be defined as the rules, based on the
the impartiality of judges natural moral law and on common consent, which
International tribunals rely on these principles when govern the relations of sovereign states and other
they cannot find authority in other sources of international persons. The purpose of is to maintain
international law. international peace and order, protections of state
rights and of fundamental human rights of economic,
Secondary Sources social, cultural and technological development.
A. Judicial Decisions The conditions stated in the above are relevant to
The ICJ statutes directs the court to apply judicial Public International Law in a way that when
decisions as subsidiary mean for the determination of international laws are brought out, it would follow
the rules of law. But this made subject to Art. 59 of through with the conditions of how and what a law
the same statutes, which states that “ the decisions of ought to be. Public International Law isn’t just a law
the court have no binding force except between the for one specific nation but for all around the world.
parties and in respect of that particular case.” Hence, Creating a law that is applicable for all
such decisions do not constitute stare decisis. internationally, where a variety of culture and
However, decisions of the ICJ are not only regarded traditions effects the creation of the law, it would be
as highly persuasive in international law circles, they important that these conditions would guide
have also contributed to the formulation of principles international law makers so that there will not be
that have become international law. prejudice in one sector but rather to harmonize all.
3. Distinguish the Dualism and Monism as
B. Teachings of the most highly qualified theories on the nature of the relation
publicists of the various nations between municipal and international law.
Where there is no treaty and no controlling executive In the conventional theory in international law , a
or legislative act or judicial decision, resort must had state can accept and integrate international law as
to the customs and usages of civilized nations, and as part of their domestic system in one of two ways.
evidence of these, to the works of jurists and Although these theories produce a huge tension
commentators. between the two competing views of international
law as to how and what extent does this view binding
C. Highly-qualified Publicists are writers whose in international legal obligations and formal
main value depends on the extent to which international institutions.
their books and articles are cites as works of The Dualism highlights the difference between
scholarship, I.e. based on thorough research the municipal and international law. As the
into what the law is said to be (lex lata) rather international law does not exist as law in this theory
than comparing the views of other writers as since it stands apart from national law. Thus, it does
to what they think the law ought to be (lex not create any effect on rights and obligations at the
ferenda). national level, unless the international law shall be
Ex. The works of Hugo Grotuis (father of incorporate or domesticated through legislative
international law) process.
Dualist theory prioritizes the notions of
2. What are the essential conditions of the individual self-determination and sovereignty at the
existence of law? Explain their relevance state level while in monist theory prioritizes the
in Public International Law. desirability of a formal international legal order to
The essential condition of the existence of law is that establish the rule of law among nations, they
it would to comply with the following principles. recognized both the national law and international
HPMDS law as part of the state’s legal system. Under a
1. The Harm Principle monist model legal framework, the international law
2. The Parental Principle serves as a guide to state-to-state relations in the
3. The Morality Principle international sphere as a source of law integrated
4. The Donation Principle into and superior to domestic law. Thus, a treaty that
5. The Statist Principle is properly ratified or accepted forms part of the legal
regime. This framework consequently creates a
Under the Harm Principle, the law is created to single and unitary legal system, with international
protect the weak. Laws against violence and abuse law at the top of the legal order and local, municipal
are embodied in this principle. For Parental law subordinate.
Principle, the laws are there to protect and give a
better life for those who need it the most, like
 4. In the absence of a central authority for its bound by it. IL is not a law of subordination but of
enforcement why would States oblige coordination.
themselves to International Laws?
Despite the absence of any central authority to >basis to be found in consent and conduct of states
enforce rules of international law, it is still >tacit consent in case of customary IL (e.g when
considered by states binding upon them. The practice a tradition for a long time)
following are reasons why the states observe >Express in conventional law (teg. Treaties)
Public International Law: >presumed in the gen. law of nations (eg. Genocide)
a. Their belief in the reasonableness of the Law
of Nation Eclectic Grotian School (Emerich De [Link]
b. Fear of being unconventional Wolff) insofar as it conforms to the dictates of right
c. Fear of reprisal from other states reason, the voluntary law may be said to blend with
According to Lawrence, states as a matter of policy the natural law and be indeed an expression of it. In
and at their own instance, observe the rules of Public case of conflict, the natural law prevails being the
International Law: more fundamental law.
a. Partly because of the conscientious
conviction that they are good and right. >accepts doctrine of natural law, but maintained that
b. Partly because of those subtle influences states were accountable only to their own conscience
which make it difficult for a man or a body of for the observance of the duties imposed by natural
men to act in defiance of the strongly held law, unless they had agreed to be bound to treat
views of those with whom they habitually those duties as part of positive law.
associate.
c. Partly because of fear but a disregard of them Legal personality or Actors in IL:
would in the long run bring evil to them. >States
Furthermore, first world countries applied the > other Intl. Actors (Modern International Law)
international laws for their own interest. Some >Intl. Org.
believed that countries still obliged to follow for > Transnational Corporation and individuals
permanent peace. It may be true but international Although they are not state but they are still given
laws were created for the sole purpose of creating juridical personality in public IL.
balance between powerful countries and the weak (Eg. World Heath, Org, ASEAN)
ones. Though, they are not enforceable against any
countries, but mere fact that the other countries who What a state is? A body of people that is politically
observed the same may apply economic pressure organized, one that occupies a clearly defined
towards those who are not signatory. Above all, territory and is sovereign. The political system that
international law was obliged by many to give the governs such a body of people.
weaker nations an equal footing to the stronger ones
through the power of the rule of law. SUBJECT OBJECT
An entity that has A person or thing in
VIDEO DISCUSSION: rights and respect of which
Public International law (Law of Nations)– body of responsibilities under rights are held and
rules and principles that are recognized as legally IL, it can be proper obligations assumed
binding and which govern the relations of states and party in transactions by the subject; its not
other entities invested with international legal. involving the directly governed by
application of IL the rules of IL, its
Formerly know as “law of nations: coined by among members of rights received and its
Jeremy Bentham 1789 Intl. community responsibilities
imposed, indirectly
Philippines follow Doctrine of incorporation: through the
generally accepted principles of international law. instrumentality of an
Intl. agency
IL a true law? following definition of school of Note: trend in IL today especially with the birth of
historical jurisprudence founded y the German jurist ICC and Arbitration Courts, the line between a
Savingly and English jurist Sir Henry Maine any rule Subject and Object of IL is increasingly being blurred.
recognized as binding rule and observe as such,
then international law is true law. What are aims of PIL?
>Eliminate absolutism and preponderance of force
Law of NATURE School (Samuel Pufendorf) there is ? attempt to determine the rights of people in relation
natural and universal principle of right and wrong, to states and govt.
independent of mutual intercourse or compact, To fix the rules governing them, as well as the
which can be discovered and recognized by every measures of legal protection designed to guarantee a
individual through the use of his reason and safeguard such rights
conscience. Since individuals compose the state
whose will is but the collective will of the inhabitants, OBJECTIVES? Investigate and determine the indvl.
the state also becomes bound by law of nature. rights and reciprocal duties which must belong to
PIL is a branch of the great law of nature- the sum of every member of such society, and fix legal rules
those principles which ought to control human governing such rights and duties and legal measures
conduct, being founded on the very nature of man as designed to protect their fulfillment.
a rational and social being (Hugo Grotius).
PRIVATE PUBLIC INTL.
Positivist School (Richard Zouche) binding force of INTL.
IL is derived from the agreement of states to be Appropriat Deals with the
ely name conduct of states
 Conflict and intl. org., are or should be
laws ) their relations observed by gov.
embraces with each other in their dealing
those and in certain with one another
universal circumstances, on grounds of
principles their relation convenience,
of right and with persons, honor, or
justice natural or reciprocity.
which juridical
govern the Examples:
courts of
one state >Extradition of
having criminals in the
before them absence of
cases express
involving agreement or
the treaty
operation >observance of
and effect certain diplomatic
of the laws forms and
of another ceremonies
state or >faith and credit
country. given in each
state to the public
As to persons Deals w/ Deals for most acts, records and
to Whom they private part with nations judicial
operate: individual as such proceedings of
As to Assumes Former other states
transactions control recognizes in
to which they over general only INTL
relate: transaction transactions in ADMINISTRATIV
s strictly which sovereign E LAW
private in states are Body of laws and
nature, in interested regulations
which stats created by the
as such has action of intl.
generally conferences or
no interest. commissions
As to remedies Recourse In the contest which regulate
applied had to states arising the relations and
judicial under the law of activities with
tribunals nations, recourse respect to those
acting is had first and material and
under the generally to intellectual
authority diplomatic interest which
and in channels and have received an
accordance should such fail, authoritative
with the to restorsion, universal
rules of reprisal and other recognition.
procedure means short of
of the war and in >relates to such
country extreme cases to matters as Intl
which they war communication
sit, by means of
PIL INTL. ETHICS postal
Deals with the correspondence
principles which and telegraphy,
should govern intl.
intl. relations transportation,
from the higher copyright, crime
standpoint o
conscience,  Created
justice or by intl.
humanity. congresse
INTL. COMITY s or
Intl. comity in conferenc
connection w/ es and
PIL relates to commissi
those rules of on, and is
courtesy, administe
etiquette, or red by
goodwill which intl.
 commissi custom)
on and
buraus as
well as by Note: There is no central
natl. authority enacts of PIL , Nobody
agencies enacts law but the agreement of
DIVISIONS the whole states that enacted
OF PIL such sets of rule, question be?
Laws of Peace Governs the Where is that law created? How
normal is that law created? Who created
relations f these rules? Sources of PIL.
states in
absence of Art. 38 sources of INTL.
war. Custom- general and consistent
Laws of War Rules practice of states followed by
between them from a sense legal
belligerent obligation.
states
during Customary 2 elements:
periods of
hostilities State practice – a consistent
or war. and uniform external conduct of
States. Generally, both what
Example: states say and what they do are
A & B at considered state practice
war, then several factors may be indicative of
they are state practice:
supposed to  the number of states that
follow the participate in the
rules of war practice
What if  national legislation
state C not demonstrating
party to acceptance
war of A&B,  decisions of national
how C courts
react? Laws Opinio Juris – state practice
of must be accompanied w/ the
Neutrality. conviction that the State is
Rules legally obligated to do so by intl.
governing and not through mere courtesy
states who or comity, or because of
are not humanitarian considerations.
involve in  comments on the acts of
the international
hostilities organisations and
between international meetings
other 2  statements by
states. representatives of states
Laws of Rules  conclusion of treaties
Neutrality governing What is INSTANT CUSTOM?
states not Customary law may emerge
involves in even w/in a relatively short
the period of time, if within that
hostilities period Stated Practice has been
or between uniform and extensive IT comes
non- about as a spontaneous activity
participatin of a great number of states
g states supporting a specific line of
with a action.
participatin General Principles common to most
g state Principles of national systems of law; rules
SOURCES Law based on natural justice. Ex.
OF PIL: Good faith, estoppel, exhaustion
(primary) of local remedies
Treaty/Intl. Generally, a treaty only binds Judicial Subsidiary means for the
Conventions the parties. However, treaties Decisions determination of rules of law
may be considered a direct Example: determining what
source of intl. when concluded rules o cutomary intl. law exist)
by a sizeable number of States, that is acceptable so log as they
and is reflective of the will of the correctly interpret and apply the
family of nations (in which case, intl. law
a treaty is an evidence of
 Note: Decision of natl. courts INTL. LAW MUNICIPAL LAW
applies intl. law are acceptable. DUALIST MONIST
Examples: Principles on International Denies that PIL and
diplomatic immunity have been law and municipal law are
developed by judgments of natl. municipal law 2 essential different. In
courts completely both laws it is the
separate realms individual person who in
Although domestic sya by nature the ultimate analysis are
then ICJ conduct survey usually regulated by the law.
they will adopt that as judicial That both laws are far
decision or some sort of intl. from being essentially
customer law. Stare Decisis not different and must be
apply in PIL. regarded as parts of the
Teachings or Publicists means learned writer. same juristic conception.
Treaties of the Learned writing like judicial For them there is
Most Highly decisions, can be evidence of oneness or unity of all
Qualified customary law, and can also play laws.
Publicists a subsidiary role in developing
new rules of law PIL is superior to
municipal law – intl.
law being the one which
Requisites of highly qualified determines the
publicist: jurisdictional limits of
1. Fair and impartial the personal and
representation of law territorial competence of
2. By an acknowledge States.
authority in the field View point of Intl. tribunals PIL
SANCTIONS OF practice superiors to Municipal
INTERNATIONAL LAW: law
 Appeal to public opinion Art. 127 Municipal Sphere – depends on
 Publication of Vienna what doctrine is followed
correspondence Convention in  Doctrine of
 Censure by law of treaties incorporation
parliamentary vote a state may not  Doctrine of
 Demand for arbitration invoke the Transformation
with the odium provisions of its
attendant internal laws as CONFLICT TREATY?
 Refusal to arbitrate justification for Discussion: If you apply
 Rupture of relations its failure to municipal law it would depend
 Reprisals perform a on which tribunal is ask to
WHY STATES OBEY treaty State apply, because example if state
PRECEPTS OF INTL. legally bound to has ratified certain treaty and
LAW? observe its violated certain provision of
 belief in inherent treaty treaty, the state cannot say that
reasonabless of intl. and obligations, this against an internal or
in their common once signed and municipal law we violated, so
conviction that its ratified. with ICJ in a court who can settle
observance will redound issues among states PIL far
to the welfare of the superior that municipal law but
whole society of nations when you go to our own local
 because of normal habits law usually what prevails not
of obedience ingrained treaty but express provision of
in the nature of man as express law, the question, which
social being prevail? Answer might be
 respect for world
opinion or desire to First you need to harmonize if
project an agreeable cannot harmonize then
public image in order to determine which court ask to
maintain goodwill and apply which to apply.
favorable regard of the
rest of the family of Usually, intl. law apply but if
nations domestic law are the express
 constant and reasonable provision of municipal law
fear that violations of rather than intl. law. EFFORTS
intl. law might visit upon TO HARMONIZE THE TWO LAW
the culprit the must be made first.
retaliation of other
states
 moral influence of the DOCTRINE OF
UN and its power to INCORPORATI DOCTRINE OF
employ physical force ON TRANSFORMATION
when warranted Form part of Legislative action is
 the law of the required to make the While there are written treaty there is also existing
land and no treaty enforceable in the oral treaty which is binding with states.
further municipal sphere.
legislative VCLT: Expressed to be for the purpose for the
action is Generally accepted rules convention and limited with the treaty within the
needed to make of intl. law are not per se States only. Not applicable but does not mean the
such rules binding upon the state treaty is invalid.
applicable in but must first embodied
domestic in legislation enacted by Elements of Treaty:
sphere lawmaking body and so 1. An agreement concluded between and
transformed into amongst states
It is municipal law. 2. It should be in written form
universally 3. Governed by international law
accepted Note: Transform intl. 4. Intention to create legal obligations
postulate that, law into municipal law. 5. Whether embodied in a single instrument or
w/ or w/out an Citizens of that state will in 2 or more related instruments
express now be bound to that 6. In whatever its particular designation
declaration to local or domestic law
this effect and state able to comply Define States? A body of people that is politically
states admitted with obligation w/ organized, has definite territory, has Own govt.
to the family of regards to intl. law. capacity to conduct international relations.
nations are
bound by the Be sure to know the nature if its is treaty or contract
rules (part of exam)
prescribed by it
for the TREATY CONTRACT
regulation of  do not need to follow legal contract is
intl. any special form an agreement
intercourse. By between two
this doctrine,  often takes the form of parties that
intl. law is a contract, but it may creates mutual,
binding ex be a joint legally
proprio vigore. declaration or an enforceable
( by its own exchange of notes. obligations.
force) essential
 legally binding elements must
agreement between be present
countries that requires before a
DISCUSSION: FEB. 27 ratification and the contract is
Why we discuss treaty? It is important, interstate “advice and consent” of binding:
transactions almost conducted by treaty ex. United the Senate. the offer, accept
nations created thru charter which is basically a ance, mutual
treaty among states.  binding formal assent (also
Important source of intl. law. agreement, contract, or known as
other written “meeting of the
Art. 3: International agreements not within the instrument that minds”), consid
scope of the present Convention establishes obligations eration,
The fact that the present Convention does not apply between two or more capacity, and
to international agreements concluded between subjects of international legality.
States and other subjects of international law or law (primarily states an
between such other subjects of international law, or d international
to international agreements not in written form, organizations). 
shall not affect:
a) the legal force of such agreements;  term treaty is used
(b) the application to them of any of the rules set generically to describe a
forth in the present Convention to which they would variety of instruments,
be subject under international law independently of including conventions,
the Convention; agreements,
(c) the application of the Convention to the relations arrangements, protocol
of States as between themselves under international s, covenants, charters,
agreements to which other subjects of international and acts. In the strict
law are also parties. sense of the term,
however, many such
VCLT not relevant to treaty. instruments are not
treaties. The key
Art. 2 “treaty” means an international agreement distinguishing feature
concluded between States in written form and of a treaty is that it is
governed by international law, whether embodied in binding.
a single instrument or in two or more related
instruments and whatever its particular designation.  treaties are expected to
be executed in good
faith, in keeping with
 the principle of pacta written form and governed by international law,
sunt servanda (Latin: whether embodied in a single instrument or in two or
“agreements must be more related instruments and whatever its particular
kept”), arguably the designation”
oldest principle of Thus, there is a treaty regardless it is in any type of
international law. instrument or particular designation, provided it
Without this principle, meets the elements of an agreement under
which is explicitly international law, then such agreement is to be taken
mentioned in many equally as a treaty and binding to both contracting
agreements, treaties parties
would be neither
binding nor ONLINE DISCUSSION:
enforceable. Pimentel, Jr., v. Executive Secretary
 A country’s signature is Facts:
often sufficient It is the theory of the petitioners that ratification of a
to manifest its intention treaty, under both domestic law and international
to be bound by the law, is a function of the Senate.  Hence, it is the duty
treaty, especially in the of the executive department to transmit the signed
case of bilateral treaties. copy of the Rome Statute to the Senate to allow it to
exercise its discretion with respect to ratification of
Multilateral Parties:  treaty to which three or more treaties.  Moreover, petitioners submit that the
sovereign states are parties. Each party owes the Philippines has a ministerial duty to ratify the Rome
same obligations to all other parties, except to the Statute under treaty law and customary international
extent that they have stated reservations. law.  Petitioners invoke the Vienna Convention on
In multilateral (general) treaties, however, a the Law of Treaties enjoining the states to refrain
country’s signature is normally subject to formal from acts which would defeat the object and purpose
ratification by the government unless it has explicitly of a treaty when they have signed the treaty prior to
waived this right. Apart from such an express ratification unless they have made their intention
provision, the instrument does not become formally clear not to become parties to the treaty
binding until ratifications have been exchanged.
On the substantive issue raised by petitioners,
Bagong Alyansang Makabayan v. Executive respondents argue that the executive department has
Secretary Ronaldo Zamora no duty to transmit the Rome Statute to the Senate
for concurrence.
Claim: According to US govt. it was only an executive the petitioners interpret Section 21, Article VII of
agreement so no need for ratification. the 1987 Constitution to mean that the power to
ratify treaties belongs to the Senate
Ans: According VCLT it is still treaty even if it has Petitioners' arguments equate the signing of the
different name, as long as has agreement with the treaty by the Philippine representative with
parties and in writing. (in whatever designation) ratification.

Q1: Is the VFA the Mutual Defense Treaty? Issues:

A1: No. The VFA is an agreement between the two whether the Executive Secretary and the
countries in support of the Mutual Defense Department of Foreign Affairs have a ministerial
Treaty (MDT). The MDT was established in 1951 duty to transmit to the Senate the copy of the
between the United States and the Philippines to Rome Statute signed by a member of the Philippine
provide mutual support in case of foreign attack. Mission to the
United Nations even without the signature of the
held in most cases: that President ratify treaty not President.
congress. (ex. Case on Rome statue, is that a political
question and go to president to ratify a treaty?) Ruling:
The Rome Statute established the International
QUESTIONS: Criminal Court which "shall have the power to
1. Distinguish the treaty requirements under exercise its jurisdiction over persons for the most
Section 21 Art. VII and Section 25 Art. XVIII. serious crimes of international concerned shall be
In Sec. 21 Art. III it needs to have 2/3 votes by all the complementary to the national criminal
members of the Senate to make the treaty or any jurisdictions."
International Agreement valid and effective while on Its jurisdiction covers the crime of genocide, crimes
against humanity, war crimes and the crime of
Sec. 25 Art VXIII it pertains to specific treaty that aggression as defined in the Statute.
involves presence of foreign military bases, troops
and facilities in the Philippines and to make it valid The Philippines signed the Statute on December 28,
and effective it must be duly concurred in by the 2000 through Charge d' Affairs Enrique A. Manalo of
Senate and when so required by congress or ratified the Philippine Mission to the United Nations. Its
by the people through a referendum by a majority of provisions, require that it be subject to ratification,
votes and that other contracting State recognized the acceptance or approval of the signatory states.
treaty. We rule in the negative.
If and when the negotiators finally decide on the
[Link] an Executive Agreement a treaty as defined terms of the treaty, the same is opened for
by the VCLT? Yes, it is a treaty, under the VCLT signature.  This step is primarily intended as a
Article 2(a) clearly provides that “'treaty' means an means of authenticating the instrument and for the
international agreement concluded between States in purpose of symbolizing the good faith of the parties;
but significantly, it does not indicate the final Upon receipt of the concurrence of the Senate, the
consent of the state in cases where ratification of Department of Foreign Affairs shall comply with the
the treaty is required. provisions of the treaty to render it effective.

Ratification, which is the next step, is the formal role of the Senate, however, is limited only to giving
act by which a state confirms and accepts the or withholding its consent, or concurrence, to the
provisions of a treaty concluded by its ratification.  Hence, it is within the authority of the
representatives. willingness to be bound by the President to refuse to submit a treaty to the
provisions of such treaty. Senate or, having secured its consent for its
ratification, refuse to ratify it. Although the refusal of
The last step in the treaty-making process is the a state to ratify a treaty which has been signed in its
exchange of the instruments of ratification, which behalf is a serious step that should not be taken
usually also signifies the effectivity of the treaty lightly,such decision is within the competence of the
unless a different date has been agreed upon by the President alone, which cannot be encroached by this
parties. Court via a writ of mandamus.

The signature does not signify the final consent of The President as the head of state is the sole organ
the state to the treaty.  It is the ratification that and authorized in the external relations and he is also
binds the state to the provisions thereof. the country's sole representative with foreign
nations; he is the mouthpiece with respect to the
 In fact, the Rome Statute itself requires that the country's foreign affairs.
signature of the representatives of the states be
subject to ratification, acceptance or approval of the In treaty-making, the President has the sole authority
signatory states to negotiate with other states and enter into treaties
but this power is limited by the Constitution with the
After the treaty is signed by the state's 2/3 required vote of all the members of the Senate
representative, the President with the responsibility for the treaty to be valid.
and the duty to carefully study the contents of the
treaty and ensure that they are not inimical to the QUESTIONS:
interest of the state and its people.  Thus, the 3. Is ratification a justiciable question? Can you
President has the discretion even after the signing of compel the president to ratify a treaty that is
the treaty by the Philippine representative whether previously signed by his representative?
or not to ratify the same.  No, there is no provision or moral duty to compel
president to be legally bound to ratify the treaty that
The Vienna Convention on the Law of Treaties does has been signed by a representative.
not contemplate to defeat or even restrain this power
of the head of states.  If that were so, the requirement Ratification is not a justiciable question where the
of ratification of treaties would be pointless and court requires to interfere and decide on such
futile.  It has been held that a state has no legal or function. Although the President does not have the
even moral duty to ratify a treaty which has been legal obligation to ratify it, the refusal must have
signed by its plenipotentiaries. valid and reasonable grounds.

There is no legal obligation to ratify a treaty, but it 4. When the representative of the Philippines
goes without saying that the refusal must be based on already affixed its signature to a treaty is the
substantial grounds and not on superficial or president duty bound to report such signature to
whimsical reasons.  Otherwise, the other state would senate for concurrence?
be justified in taking offense. No, the only function of the President under our
Philippine Constitution is to ratify the treaty which is
Principles: subject to the concurrence of the Senate. His power is
while the President has the sole authority to to refuse to submit a treaty to the Senate or, having
negotiate and enter into treaties, the Constitution secured its consent for its ratification, refuse to ratify
provides a limitation to his power by requiring the it or not. Thus, he is not duty bound to report such
concurrence of 2/3 of all the members of the Senate signature to senate for concurrence.
for the validity of the treaty entered into by him. 
Section 21, Article VII of the 1987 Constitution [Link] signature against ratification.
provides that "no treaty or international agreement Ratification is an international act where a state
shall be valid and effective unless concurred in by at indicates its consent to be bound to a treaty where
least two-thirds of all the Members of the Senate."  the parties show their consent and intention to be
part of such act.
Section 10 (7), Article VII of the 1935 Constitution It is the action of signing or giving formal consent to a
The participation of the legislative branch in the treaty or contract that makes it officially valid.
treaty-making process was deemed essential to signature does not provide a final consent of the
provide a check on the executive in the field of state to a treaty as it needs to undergo ratification for
foreign relations.  it to be legally binding to the state to its provisions.
after the treaty has been signed by the Philippine The signature is a mere indication that they intended
representative, the same shall be transmitted to the to validate the instrument so as to show their
Department of Foreign Affairs.  The Department of willingness to be bound by the provisions of such
Foreign Affairs shall then prepare the ratification treaty.
papers and forward the signed copy of the treaty to
the President for ratification.  After the President has [Link] the Philippines who ratifies a treaty? Under
ratified the treaty, the Department of Foreign Affairs our Philippine Constitution it provides that the
shall submit the same to the Senate for concurrence.  President has the capacity to ratify a treaty through
the concurrence of the Senate by 2/3 votes. Senates Unlike signature that does not establish consent
limited function is withholding its consent for the to be bound, ratification is where a state indicates
ratification and the President shall have the power to its consent to be bound to a treaty if the parties
refuse to submit a treaty to the Senate or, having intended to show their consent by such an act. After
secured its consent for its ratification, refuse to ratify the authentication and expressed willingness through
it. signing, and consent to be bound in the process of
ratification, Accession is when a state accepts the
Tanada v. Angara offer or the opportunity to become a party to a treaty
[Link] is the principle of auto-limitation of already negotiated and signed by other states where
sovereignty? The State may by its consent, express it usually occurs after the treaty has entered into
or implied, submit to the restriction of its sovereign force.
rights which has curtailment subject to the plenary
power. Prooperty of the state-force due to which it 2. Republic Act No. 9184 provides that Awards
has the exclusive capacity of legal self-determination and Bidding Committee shall set the upper limit
and self-restriction. or ceiling for the Bid prices. Bid prices that
8. What are the limitations of such principle? exceed the ceiling shall be disqualified outright
Those limitations imposed by the very nature of from further participating in the bidding but
membership in the family of nations and by treaty exempted from this requirement are
stipulations. So as the limitation through the doctrine international treaties entered by the government.
of incorporation in which the state is bound by Are loan agreements obtain by the Philippines
generally accepted principles of international law with foreign banks as foreign loan agreements
that became part of our own laws automatically. exempted from the requirements of RA 9184.

Resolution 97 not unconstitutional. Constitution did Sec. 4 of RA 9184 applies to all government
not intend to pursue an isolationist policy. procurement activities, regardless of source of funds,
whether local or foreign and that only treaties or
Treaty engagement is not a mere obligation but international or executive agreements entered into
creates a legally binding obligation on the parties. by the government prior to its enactment shall be
exempt from its coverage.
Lim v. Executive Secretary
[Link] should treaties be interpreted? If the loan is obtained from a foreign bank or entity
Under the VCLT Article 31 states that “A treaty shall which was created as a result of an existing treaty
be interpreted in good faith in accordance with the (such as the World Bank or the IMF), then yes, the
ordinary meaning to be given to the terms of the loan agreements are exempted from the
treaty in their context and in the light of its object requirements of RA 9184.
and purpose”. However, if the loan is obtained from a foreign bank
not created by virtue of a treaty, then no, such foreign
[Link] should be done in case of conflict of a banks must comply with the requirements of RA
treaty provision and the constitution? 9184.
It depends on which court is deciding. In
international Court the treaty obligation shall uphold [Link] are executive agreements do not require
in general and in Domestic Court local laws will the concurrence of senate to be valid and
uphold. However, in case of conflict under Article 46 effective?
of VCLT provides that “when constitutional violation As conferred by Executive Order 459 that Executive
is manifest and concerns a rule of internal law of Agreements do not require legislative concurrence
fundamental importance, state may deviate from since it is less formal than a treaty and is not subject
treaty obligation.” Under the dualist theory, to the constitutional requirement for concurrence of
unconstitutionality of a treaty is purely domestic senate to be valid and effective.
matter it does not create any effect on rights and these agreements are mostly for commercial and
obligations at the national level, unless the economical purposes only, they do not involve nor
international law shall be incorporate or impair the existing rights of the people.
domesticated through legislative process while in the However, in the international sphere, both treaties
monist theory a treaty that is properly ratified or and international agreements are on the same footing
accepted forms part of the sovereign legal system. To and are treated evenly.
resolve such issue, we need to ascertain first and try
to give effect to both, if inconsistent, the later in date Are they covered under the Vienna Conventions
will control, provided that the treaty stipulation on the Law of Treaties?
is self- executing. But the rule applies in domestic Yes, since executive agreements applies under Art. 2
sphere. A treaty, even if contrary to a later statute, is of the VCLT which provides that “treaty” means an
binding in international law. international agreement concluded between States in
written form and governed by international law,
++++++++++++++++++++++++++ whether embodied in a single instrument or in two or
[Link] signing, ratification, accession, more related instruments and whatever its particular
and entry into force from each other. designation.” Thus, executive agreement is equally
regarded same as with treaty.
Signing is subject to ratification, acceptance or
approval, the signature does not establish the 3. What is pleins pouvoir? This means full power or
consent to be bound. However, it is a means of full authority. It provides full power to any
authentication and expresses the willingness of the representative who signs a treaty in behalf of the
signatory state to continue the treaty-making State or government.
process. The signature qualifies the signatory state to
proceed to ratification, acceptance or approval. 
[Link] a representative of a state who is not duly 5. Is exchange of notes part of negotiations? Are
authorized to do so signs a treaty, what will be states bound to any items on its exchange of notes
the effect of such treaty to the state he/she even if the item is not found in the treaty that was
purported to represent? produced? Yes, since negotiation consent is one of
If the representative of the State is not one of those the steps in process of making a treaty and the
provided under Article 7 of VCLT to who has full consent to be bound by a treaty shall be expressed by
powers to represent, Under Article 8 of VCLT an exchange of instruments under Article 13 of the
provides that “An act relating to the conclusion of a VCLT.
treaty performed by a person who cannot be
considered under article 7 as authorized to represent [Link] third parties be bound to a treaty?
a State for that purpose is without legal effect unless Yes, the third parties who did not engage to the
afterwards confirmed by that State”. negotiation of the treaty becomes a party to an
already existing treaty called Accession as defined
[Link] Pacta Sunt Servanda and its limitations and provided under Art. 15 of the VCLT. Further,
and exceptions. The exemption is the peremptory third parties have to adhere to the provisions or
norms of the general international law jus cogens. As obligations of a treaty if the provisions of
such every treaty must be in force and binding upon the treaties are customary international law.
parties in good faith as provided under Article 8 of
VCLT but the limitation is when treaties that are not [Link] some examples of customary laws codified
ratified shall not take effect and no legal obligation by VCLT.
attached. clausula rebus sic stantibus
erga omnes 
1. How is consent of a state to a treaty expressed?
It can be expressed by signature, exchanges of 1. When can there be material breach?
instruments constituting a treaty, ratification, Material breach occurs when one party receives
acceptance approval or accession or by any other significantly less benefit or a significantly different
means if so agreed as provided under the legal result than what was specified in a contract or a
provisions of VCLT. failure to perform the contract. Material Breach is
further discussed under
2. In general how is a treaty made? What are the
steps involved? Article 60(3) of the VCLT, which provides that
the steps on how treaty is made starts with material breach consists in:
[Link] through a bilateral or multilateral a. a repudiation of the treaty not sanctioned by the
treaty negotiated by Foreign ministries clothed with present Convention; or
full power to negotiate in behalf of the State. b. the violation of a provision essential to the
Followed by the [Link] and authentication of accomplishment of the object or purpose of the
text via signature, next is the [Link] Consent treaty.
of the State to be bound by the treaty and lastly4.
entry into force of the treaty base on the date 3. Does VCLT allow minor violations of essential
agreed upon by parties. provisions of a treaty?
No, under Article 60(3) (b) of VCLT states that “the
[Link] adoption, authentication, and violation of a provision essential to the
ratification of a treaty. accomplishment of the object or purpose of the
treaty.” Hence, even minor violations in the essential
Adoption is defined under Article 9 of the VCLT. provisions are still considered a material breached as
Where it takes place by the consent of the States it will affect the object or purpose of the treaty.
participated in drafting.
4. Distinguish Material Breach v. Change in
Authentication is provided under Article 10 of the Circumstance
VCLT. Where a test of a treaty is established by the Material breach is when a certain essential
following: provision is violated that will affect its object and
(a) by such procedure as may be provided for in the purpose of the treaty while fundamental and u
text or agreed upon by the States participating in its unforeseen change of circumstances can potentially
drawing up; or prompt unilateral termination, withdrawal from, or
(b) failing such procedure, by the signature, signature suspension of a treaty, only if the existence of
ad referendum or initialling by the representatives of those circumstances constituted an essential basis of
those States of the text of the treaty or of the Final Act the parties' consent to be bound by the treaty.
of a conference incorporating the text.
5. When can a state invoke Fundamental Change
Ratification is the action of signing or giving formal of Circumstance as ground for terminating a
consent to a treaty, contract, or agreement, making it treaty? It is provided under Sec. of the VCLT.
officially valid. It is provided under Article 65 of the VCLT which
provides that “A fundamental change of
circumstances which has occurred with regard to
those existing at the time of the conclusion of a
4. In the Philippines, can you compel the treaty, and which was not foreseen by the parties,
government to disclose its notes on the items may not be invoked as a ground for terminating or
discussed during Negotiations? withdrawing from the treaty unless:
(a) the existence of those circumstances constituted
an essential basis of the consent of the parties to be
bound by the treaty; and
(b) the effect of the change is radically to transform 2. In virtue of their functions and without having to
the extent of obligations still to be performed under produce full powers, the following are considered as
the treaty. “ representing their State:
(a) Heads of State, Heads of Government and
ALTERNATIVE ANSWERS: Ministers for Foreign Affairs, for the purpose of
In case of conflict of intl. law & local law: performing all acts relating to the conclusion of a
10. To determine the legal system of the state: (a) treaty;
If supremacy of the Constitution is recognized, (b) heads of diplomatic missions, for the purpose of
municipal law prevails (except if it violates jus adopting the text of a treaty between the accrediting
cogens); State and the State to which they are accredited;
(b) if supremacy of the Constitution is not (c) representatives accredited by States to an
recognized, international law prevails. To determine international conference or to an international
the forum where the case is filed: organization or one of its organs, for the purpose of
(a) if international court – international law prevails; adopting the text of a treaty in that conference,
(b) if domestic court, determine whether monist or organization or organ.
dualist. If monist, international law prevails (except if
the municipal law involved is the Constitution). If Article 9 Adoption of the text
dualist, municipal law prevails. 1. The adoption of the text of a treaty takes place by
the consent of all the States participating in its
OTHER: drawing up except as provided in paragraph 2.
10. In case of conflict of a treaty provision and the 2. The adoption of the text of a treaty at an
Constitution, efforts should first be done in order international conference takes place by the vote of
to harmonize both provisions. However, if they two thirds of the States present and voting, unless by
cannot be harmonized, dealing with the conflict the same majority they shall decide to apply a
depends whether it is from the perspective of different rule.
international law or based on our Constitution. From
the perspective of public international law, a treaty is Article 10 Authentication of the text
favored over our Constitution pursuant to the The text of a treaty is established as authentic and
principle of pacta sunt servanda such that a party to definitive:
the treaty is not allowed to invoke the provisions of (a) by such procedure as may be provided for in the
its internal law as justification for its failure to text or agreed upon by the States participating in its
perform a treaty. drawing up; or
On the other hand, our Constitution allows the courts (b) failing such procedure, by the signature, signature
to nullify a treaty when it conflicts with the ad referendum or initialling by the representatives of
fundamental law or when it runs counter to an act of those States of the text of the treaty or of the Final Act
Congress. Provisions of a treaty are always subject to of a conference incorporating the text.
qualification or amendment by a subsequent law or
that it is subject to the police power of the State. Article 11 Means of expressing consent to be bound
by a treaty
IMPROTANT ARTICLES: The consent of a State to be bound by a treaty may be
Art. 6 – every state possesses the capacity to expressed by signature, exchange of instruments
conclude treaties. constituting a treaty, ratification, acceptance,
Note: treaty making powers exercised by heads of approval or accession, or by any other means if so
State or their representative. agreed.

Article 8 Subsequent confirmation of an act Article 12 Consent to be bound by a treaty expressed

performed without authorization by signature
An act relating to the conclusion of a treaty 1. The consent of a State to be bound by a treaty is
performed by a person who cannot be considered expressed by the signature of its representative
under article 7 as authorized to represent a State for when:
that purpose is without legal effect unless afterwards (a) the treaty provides that signature shall have that
confirmed by that State. effect;
(b) it is otherwise established that the negotiating
Article 26 Pacta sunt servanda” States were agreed that signature should have that
Every treaty in force is binding upon the parties to it effect; or
and must be performed by them in good faith. (c) the intention of the State to give that effect to the
Universally accepted fundamental law signature appears from the full powers of its
Good faith is an integral part , Does not apply to representative or was expressed during the
invalid treaties negotiation.
2. For the purposes of paragraph 1:
Artilce 7 Full powers (a) the initialling of a text constitutes a signature of
1. A person is considered as representing a State the treaty when it is established that the negotiating
for the purpose of adopting or authenticating the text States so agreed;
of a treaty or for the purpose of expressing the (b) the signature ad referendum of a treaty by a
consent of the State to be bound by a treaty if: representative, if confirmed by his State, constitutes a
(a) he produces appropriate full powers; or full signature of the treaty.
(b) it appears from the practice of the States
concerned or from other circumstances that their Article 13 Consent to be bound by a treaty expressed
intention was to consider that person as representing by an exchange of instruments constituting a treaty
the State for such purposes and to dispense with full The consent of States to be bound by a treaty
powers. constituted by instruments exchanged between them
is expressed by that exchange when:
(a) the instruments provide that their exchange shall particular to provisions prohibiting any form of
have that effect; or reprisals against persons protected by such treaties.
(b) it is otherwise established that those States were Article 61 Supervening impossibility of performance
agreed that the exchange of instruments should have 1. A party may invoke the impossibility of performing
that effect. a treaty as a ground for terminating or withdrawing
from it if the impossibility results from the
Article 31 General rule of interpretation permanent disappearance or destruction of an object
1. A treaty shall be interpreted in good faith in indispensable for the execution of the treaty. If the
accordance with the ordinary meaning to be given to impossibility is temporary, it may be invoked only
the terms of the treaty in their context and in the as a ground for suspending the operation of the
light of its object and purpose. treaty.
2. The context for the purpose of the interpretation of 2. Impossibility of performance may not be invoked
a treaty shall comprise, in addition to the text, by a party as a ground for terminating, withdrawing
including its preamble and annexes: from or suspending the operation of a treaty if the
(a) any agreement relating to the treaty which was impossibility is the result of a breach by that party
made between all the parties in connection with the either of an obligation under the treaty or of any
conclusion of the treaty; other international obligation owed to any other
(b) any instrument which was made by one or more party to the treaty.
parties in connection with the conclusion of the
treaty and accepted by the other parties as an Article 62 Fundamental change of circumstances
instrument related to the treaty. 1. A fundamental change of circumstances which
3. There shall be taken into account, together with has occurred with regard to those existing at the time
the context: of the conclusion of a treaty, and which was not
(a) any subsequent agreement between the parties foreseen by the parties, may not be invoked as a
regarding the interpretation of the treaty or the ground for terminating or withdrawing from the
application of its provisions; treaty unless:
(b) any subsequent practice in the application of the (a) the existence of those circumstances constituted
treaty which establishes the agreement of the parties an essential basis of the consent of the parties to be
regarding its interpretation; bound by the treaty; and
(c) any relevant rules of international law applicable (b) the effect of the change is radically to transform
in the relations between the parties. the extent of obligations still to be performed under
4. A special meaning shall be given to a term if it is the treaty.
established that the parties so intended. 2. A fundamental change of circumstances may not
be invoked as a ground for terminating or
Article 60 Termination or suspension of the withdrawing from a treaty:
operation of a treaty as a consequence of its breach (a) if the treaty establishes a boundary; or
1. A material breach of a bilateral treaty by one of (b) if the fundamental change is the result of a breach
the parties entitles the other to invoke the breach as by the party invoking it either of an obligation under
a ground for terminating the treaty or suspending its the treaty or of any other international obligation
operation in whole or in part. owed to any other party to the treaty.
2. A material breach of a multilateral treaty by one of 3. If, under the foregoing paragraphs, a party may
the parties entitles: invoke a fundamental change of circumstances as
(a) the other parties by unanimous agreement to a ground for terminating or withdrawing from a
suspend the operation of the treaty in whole or in treaty it may also invoke the change as a ground for
part or to terminate it either: i) in the relations suspending the operation of the treaty.
between themselves and the defaulting State; or
(ii) as between all the parties; The opposite of pacta sunt servanda is the clausula
(b) a party specially affected by the breach to invoke rebus sic stantibus principle that allows a state to not
it as a ground for suspending the operation of the fulfil its obligations in case of a fundamental change
treaty in whole or in part in the relations between of circumstances.
itself and the defaulting State;
(c) any party other than the defaulting State to invoke TREATY MAKING PROCESS:
the breach as a ground for suspending the operation  States may adopt any procedure to bring a
of the treaty in whole or in part with respect to itself legally binding agreement into existence
if the treaty is of such a character that a material  Absence of agreement, the VCLT applies
breach of its provisions by one party radically  2 main parts
changes the position of every party with respect to a. Negotiation and adoption
the further performance of its obligations under the b. Formal procedure
treaty. [Link]
3. A material breach of a treaty, for the purposes of 2. adoption and authentication of text
this article, consists in: [Link] to be bound (Ratification)
(a) a repudiation of the treaty not sanctioned by the 4. Entry into force
present Convention; or
(b) the violation of a provision essential to the [Link]
accomplishment of the object or purpose of the Q: who initiates the negotiation?
treaty. Bilateral treaties
4. The foregoing paragraphs are without prejudice to = at the level of the parties themselves
any provision in the treaty applicable in the event of = conducted by Heads of States or Govt. Ministers of
a breach. FA, other senior officials
5. Paragraphs 1 to 3 do not apply to provisions Multilateral Treaties
relating to the protection of the human person =Instigated by intl. org. such as: UN, UNESCO, ILC
contained in treaties of a humanitarian character, in
=negotiated in diplomatic conferences which are run ACCESSION (Art. 15)
like a legislative body The 3rd parties who did not engage to the
Accrediting of representatives negotiation of the treaty becomes a party to an
Each state appoints a rep or plenipotentiary. already existing treaty called Accession.
Full powers a document emanating from the RESERVATION:
competent authority of a State designating a person -declaration made by a state by which it purports
or persons to represent the State for negotiating, to exclude or alter the legal effect of certain
adopting or authenticating the test of a treaty, for provisions of the treaty in their application to
expressing the consent of the State to be bound by a that states
treaty or for accomplishing any other act with -governed by Articles 19-23 ,VCLT
respect to a treaty Art. 2 (a) Formulation of reservations (Art 19)
Art 7. Legal effects (Art. 21)
1. Considered representing state:
a. He produces appropriate full powers [Link] TO FORCE (Art. 24)
b. Appears from practice of state or from other Common provisions
circumstances that their intention was to -Bilateral Treaties = particular date, date of heir
consider that person as representing the last signature, exchange of the instruments of
State ratification, exchange of notification
If & when they have finally decided with the terms Multilateral = fixed number of states to express their
and condition of the Treaty the same is open for consent.
signature this step is primarily intended for purpose addition conditions: certain category of states must
of symbolizing good faith of the parties but be among consenters and additional time to elapse
significantly it does not indicate the final consent of after required number of countries express their
the parties in cases the ratification of the treaty is consent,
required, the process of adoption and authentication Legal implication – state parties under obligation to
of the text of treaty may take any form agreed by the modify the national legal system to implement the
parties. In cases of multilateral treaty this generally international obligation.
by way of inclusion by final act of the treaty. Provisional application (Art 25)

2. Authentication of text ALTERNATIVE ANSWER: TREATY MAKING

Adoption (Art. 9 VCLT) – formal act by which the PROCESS
form and content of a proposed treaty text are
established. 1. There are various ways by which consent to be
Authentication (Art. 10 VCLT) – procedure bound is expressed. Article 11 of the Vienna
whereby the test of a treaty is established as Convention provides the means of expressing
authentic and definitive. consent to be bound by a treaty such as by signature
(Art. 12), exchange of instruments constituting a
[Link] TO BE BOUND treaty (Art. 13), ratification (Art. 14 par.1),
-Signature Art 12 acceptance (Art. 14 par. 2), approval or accession
-Exchange of instrument constituting treaty (Art. 13) (Art. 15), or by any other means if so agreed.
-Ratification (Art 14, par. 1)
-Acceptance (Art 14 par. 2) 3. Adoption is the formal act by which the form and
-Approval or Accession Art 2(1)b content of a proposed treaty text are established. As a
-Any other means if so agreed general rule, the adoption of the text of a treaty takes
RATIFICATION: place through the expression of the consent of the
-Formal act by which a state confirms and accept the states participating in the treaty-making process.
provisions of a treaty
-Executive act COMMON TERMS:
Purpose: enable contracting states to examine the Accession act whereby a state accepts the offer or
treaty more closely and give them opportunity to the opportunity to become a party to a treaty already
refuse to be bound by it should they find it inimical to negotiated and signed by other states. It has the same
their interest. legal effect as ratification. Accession usually occurs
Bilateral treaties: exchange of instruments after the treaty has entered into force.
Multilateral: deposit of ratification of states.
Note: The primary distinction in becoming a Party is Act of Formal Confirmation used as an equivalent
usually made between ratification and accession. for the term "ratification" when an international
RATIFICATION PHILIPPINE CONTEXT: organization expresses its consent to be bound to a
 Distinguish from signing of treaty treaty.
1. Transmitted to DFA
2. DFA shall prepare ratification papers Adoption
3. Forward the signed copy to the president for formal act by which the form and content of a
ratification proposed treaty text are established. As a general
4. After pres. Has ratified, DFA shall submit the rule, the adoption of the text of a treaty takes place
same to Senate for concurrence through the expression of the consent of the states
5. Upon receipt of Senate’s concurrence, DFA participating in the treaty-making process. A treaty
shall comply with provisions of the treaty to can also be adopted by an international
render it effective conference which has specifically been convened for
Note: States have no legal obligation to ratify setting up the treaty, by a vote of two thirds of the
-president has discretion even after signing of states present and voting, unless, by the same
treaty whether or not to ratify the same majority, they have decided to apply a different rule.
-president ratifies, Senate Concurs
Amendment
formal alteration of treaty provisions affecting all the Full Powers means a document emanating from the
parties to the particular agreement. Such alterations competent authority of a state designating a person
must be affected with the same formalities that or persons to represent the state for negotiating,
attended the original formation of the treaty. adopting, authenticating the text of a treaty,
expressing the consent of a state to be bound by a
Authentication procedure whereby the text of a treaty, or for accomplishing any other act with
treaty is established as authentic and definitive. Once respect to that treaty.
a treaty has been authenticated, states cannot
unilaterally change its provisions. Modification refers to the variation of certain treaty
provisions only as between particular parties of a
Correction of Errors treaty, while in their relation to the other parties the
If, after the authentication of a text, the signatory and original treaty provisions remain applicable. If the
contracting states are agreed that it contains an treaty is silent on modifications, they are allowed
error, it can be corrected by initialling the corrected only if the modifications do not affect the rights or
treaty text, by executing or exchanging an instrument obligations of the other parties to the treaty and do
containing the correction or by executing the not contravene the object and the purpose of the
corrected text of the whole treaty by the same treaty.
procedure as in the case of the original text. If there
is a depositary, the depositary must communicate Notification refers to a formality through which a
the proposed corrections to all signatory and state or an international organization communicates
contracting states. certain facts or events of legal importance.

Declarations Objection
Sometimes states make "declarations" as to their  Any signatory or contracting state has the option of
understanding of some matter or as to the objecting to a reservation, inter alia, if, in its opinion,
interpretation of a particular provision. Unlike the reservation is incompatible with the object and
reservations, declarations merely clarify the state's purpose of the treaty.
position and do not purport to exclude or modify the
legal effect of a treaty. Usually, declarations are made Provisional Application and Provisional Entry
at the time of the deposit of the corresponding into Force of Treaties
instrument or at the time of signature. 456
declarations are not always legally binding. The term 1. Provisional Application
is often deliberately chosen to indicate that the The growing use of provisional application clauses in
parties do not intend to create binding obligations treaties is a consequence of the need felt to give effect
but merely want to declare certain aspirations. to treaty obligations prior to a state?s formal
ratification of/accession to a treaty.
Definitive Signature When the treaty is not subject 2. Provisional Entry into Force
to ratification, acceptance or approval, "definitive occur when a number of parties to a treaty which has
signature" establishes the consent of the state to be not yet entered into force, decide to apply the treaty
bound by the treaty. as if it had entered into force. Once a Treaty has
entered into force provisionally, it is binding on the
Deposit parties which agreed to bring it into force
After a treaty has been concluded, the written provisionally.
instruments, which provide formal evidence of
consent to be bound, and also reservations and Ratification act whereby a state indicates its consent
declarations, are placed in the custody of a to be bound to a treaty if the parties intended to
depositary. show their consent by such an act bilateral treaties,
ratification is usually accomplished by exchanging
Entry into Force the requisite instruments, multilateral treaties the
the provisions of the treaty determine the date on depositary to collect the ratifications of all states,
which the treaty enters into force. Where the treaty keeping all parties informed of the situation. T
does not specify a date, there is a presumption that
the treaty is intended to come into force as soon as all Reservation a declaration made by a state by which
the negotiating states have consented to be bound by it purports to exclude or alter the legal effect of
the treaty. Bilateral treaties may provide for their certain provisions of the treaty in their application to
entry into force on a particular date, upon the day of that state
their last signature, upon exchange of the
instruments of ratification or upon the exchange of Revision (i.e., Article 109 of the Charter of the United
notifications. multilateral treaties it is common to Nations). In that case, the term "revision" refers to
provide for a fixed number of states to express their an overriding adoption of the treaty to changed
consent for entry into force. circumstances, whereas the term "amendment"
refers only to a change of singular provisions.
Exchange of Letters/Notes
States may express their consent to be bound by an DISCUSSION MARCH 6.
"exchange of letters/notes". The basic characteristic
of this procedure is that the signatures do appear not Article 54 Termination of or withdrawal from a
on one letter or note but on two separate letters or treaty under its provisions or by consent of the
notes. parties The termination of a treaty or the
"exchange of notes" is a record of a routine withdrawal of a party may take place:
agreement, that has many similarities with the (a) in conformity with the provisions of the treaty; or
private law contract. (b) at any time by consent of all the parties after
consultation with the other contracting States.
 DOCTRINE OF TRANSFORMATION (adoption
signature - intended means of authenticating of the doctrine) – requires that an intl. law be transformed
instrument and showing only good faith into a domestic law through a constitutional
perform state by authorize representative only mechanism such as local legislation. It is opposed to
generally: eo act undertaking by head of state who the doctrine of transformation, which states that intl.
shall ratify law only forms a part of municipal law. The
incorporation method applies when, by mere
HOW PHILIPPINES INTERPRET THE TREATIES? constitutional declaration, intl. law is deemed to have
(Makabayan case) the force of domestic law.
Nicaragua Case: there is seems to be absence of
treaty provision but court relied on other else that QUESTIONS:
makes the party still bound to it. 1. Distinguish the doctrine of incorporation and
even if not transmitted to local law but he is still transformation. Doctrine of Incorporation Form
bound to it. part of the law of the land and no further legislative
action is needed to make such rules applicable in
ADDITIONAL VIDEO DISCUSSION: domestic sphere. While Doctrine of Transformation
Generally Accepted Principles of Intl. = eg. Legislative action is required to make the treaty
Renunciation of war as instrument of national policy, enforceable in the municipal sphere. Generally
principle of sovereign immunity, right to life, liberty, accepted rules of international law are not per se
due process and pacta sunt servanda binding upon the state but must first embodied in
legislation enacted by lawmaking body and so
Doctrine of Incorporation transformed into municipal law.
Art 2. Sec. 2 1987 Consti. – “The Philippines adopts
the generally-accepted principles of Intl. law as part 2. Explain the dualist and monist theory of
of the law of the land” International Law. Dualist theory prioritizes the
notions of individual self-determination and
Applied whenever municipal tribunals are sovereignty at the state level while in monist theory
confronted with situations in which there appears to prioritizes the desirability of a formal international
be conflict between a rule of intl. and provisions of legal order to establish the rule of law among nations,
the consti. they recognized both the national law and
Efforts should be exerted to harmonize them to give international law as part of the state’s legal system.
effect to both.
3. When can a principle be qualified as generally
Mejoff vs. Director of Prisons – Universal accepted?
Declaration of Human Rights, Art.1,2,8 & 9. When there is established, widespread, and
Art. 8 no one should be subjected to arbitrary arrest. consistent practice on the part of States, Virtually
uniform practice and general recognition of the rule
(application law in war) of law or legal obligation know as opinion juris.
Kuroda vs. Jalandoni
(customary intl. law, even if Phils. Not sign Hague 4. Give examples of a generally accepted principle
Convention, apply Art. 2 of Consti. Gen. Accepted of international law. renunciation of war as an
Principle adapted & form part of the law of land) instrument of national policy, principle of sovereign
– Kuroda charged violation of laws and customs of immunity, persons right to life, liberty and due
war but contend that Phil. is not signatory nor process and pacta sunt servanda.
adherent to Hague Convention on Rules and
Regulation covering Land A warfare this cannot be 5. Can states derogate from the generally
charged, unconstitutional and against local law. accepted principle of international law?
No, Jus cogens. pre-remptory norm ("compelling
EO 68 valid and constitutional. Art. 2 of Consti, in sec law") is a fundamental principle of international law
3 Philippines renounces war as an instrument of which is accepted by the international community of
national policy and adopts the generally accepted states as a norm from which no derogation is ever
principles of intl. law as part of the nation. permitted (non-derogable). Any laws conflicting with
it should be considered null and void.
Agustin vs. Edu – 1968 VCLT on Road Signs and
Signals and the UN org. since ratified by Phil. then
incorporate to local law thus cannot be in question. Alanis vs. CA- request to remove and change last
Since being a signatory we are held to upheld. name and first name. violation of civil code legitimacy
follows father’s name, 1980 Phil. signed convention
JBL Reyes vs. Bagatsing – retired judge as approval elimination against all forms of discrimination. Art. 2
permit for peaceful march but denied due to police and Art. 5 . Recognize the importance between men
intelligent report for potential crime occur in large and women. To avoid patriarchy in the system.
place. Surename is significant to identify the cultural roots.

2nd par Art. 22” receiving State is under a special duty QUESTIONS:
to take appropriate steps to protect the premises of 1. In the case of Alanis, when the court says that
the mission against any intrusion or damage and to such practice is an emerging international
prevent any disturbance of the peace of the mission customary law does it mean such practice is
or impairment of its dignity”. Philippines have duty to already an international customary law? Yes,
protect then denial permit is valid but court of provided that it shall prove the existing elements for
appeals found out that they don’t have potential to a customary law to emerge such as the following:
cause damage.
 1. Very widespread and representative 3. States have obligation to facilitate the
participation in convention, including states naturalization of such states.
who interest was specially affected However, there is no customary intl. law conferring
2. Virtually uniform practice (consistent and automatically citizenship at birth to foundlings, much
uniform usage) less natural born citizenship at birth as understood
3. General recognition of the rule of law or legal under the phil. consti. If not signatory then not
obligation (opinion juries) bound.

[Link] can international customary law be 2 customary intl. law automatically conferring
proven? It shall be proved that the state practice nationality to foundling at birth,
must be generally consistent, practice must occur out 1. Foundlings is deemed domiciled in the
of sense of legal obligation and proved by direct country where the foundling is found
evidence to establish its existence or by established 2. Foundling only considered to have domicile
judicial notice. at birth, not nationality at birth. Started
otherwise, foundling receives at birth a
Poe-Llamanarez vs. COMELEC domicile of origin which is the country in
(customary law, even if Phil. not signed Hague which the foundling is found.
Convention, signed by many states and These 2 general principle of intl. law have nothing to
considered CIL.) do with conferment of nationality.

- run for president but questioned citizenship. Claim of petitioner contravenes our jus sanguinis
Foundling natural born Citizen of Phils? principle. Thus, no intl. treaty which provides
As matter of law, foundlings are as class, natural born expressly or impliedly that a foundling is deemed
citizens but 1935 consti apply to petitioner since a natural born citizen of country in which the
deem born in 1938 which is silent as to foundlings foundling is found. There is also obviously no intl.
but carpio said in 1934 convention foundlings was treaty, to which phils is no a party, obligating Phil to
categorically removed from the list. confer automatically phil. citizenship to a foundling at
birth.
Basis of Intl. Law.
Universal Declaration of Human Rights art. 15 1. QUESTION:
Everyone has right to a nationality… 3. In the case of Llamanzares, the court
recognizes a few number of states signing a treaty
Un convention on rights of Child Art. 7… as evidence of international customary law, do
you think this is correct? No, it will defeat its
Intl. Covenant on Civil and Political rights = Art. 24 purpose. It should be signed, recognized and
1039 Hague Convention Art. 14 & 15 accepted by large number of states for it to become
binding as an international customary law that is
Art. 14 a child whose parents are both unknown being practiced by majority number of states.
shall have the nationality of the country of birth. If
the child’s parentage us established, its nationality [Link] can a treaty become an international
shall be determined by the rules applicable in cases customary law? When a large number of states
where the parentage is known. A foundling is, until agreeing upon a treaty provision is itself an
the contrary is proved, presumed to have been born important piece of State practice. If those and other
on the territory of the State in which it was found States subsequently apply the treaty provision
especially where they are not parties to the treaty
Art. 15 where the nationality of a State is not then it can quickly become part of customary
acquired automatically by reason of birth of its international law.
territory, a child born on the territory of that State of
parents having no nationality, or of unknown 5. What is the effect when a treaty becomes an
nationality, may obtain the nationality of said State. international customary law? The States shall
formally accept the rule on international customary
1961 United Nations Convention on the law and it shall be binding upon all States regardless
Reduction of Stateless of whether they have ratified a treaty or not,
Art. 2 A foundling found in the territory of a provided that the overall State practice on which the
contracting State shall, in the absence of proof to the rule is based is “widespread, representative and
contrary, be considered to have been born within the virtually uniform” and accepted as law. It cannot be
territory of parents possessing the nationality of the derogated and shall be followed by all States as a
State. custom unless they would suffer retaliation or
economic pressure as a consequence.
Phil. not signatory to Hague convention or
reduction of stateless but signatory on others above CUSTOMARY LAW – an aspect of intl. law derived
and HDR. from customs and is considered a primary source of
intl law, not written format such as law of the
But CRC and UDHR on nationality establish treaties. One need to understand the fact that,
principles are considered customary intl. law because customary law can be codified however all the
of widespread and consistent practice of states and codified law cannot be treated as customary law.
obligatory nature among state.
Art. 38 of ICJ, Art. 38 (1) (b) in particular referred to
Most states recognize core nationality provisions: intl. custom as evidence of gen. practice accepted as
1. Every human being has a right to a nationality law. authorative statement on source of intl law
2. States have the obligation to avoid
statelessness
ELEMENTS CUSTOMARY LAW: Art. 1 (2) of Special Agreements states that they
1. Objective element/General practice (state would delimit the continental shelf in north sea as
practice) – existence of specific usage, between their countries by agreement in pursuance
actions of omissions by state must support of decision requested from icj.
the custom
2. Subjective element/Acceptance as law They argued delimitation governed by principles &
(opinion juris)-belief that state practice is rules f intl art. 6 (2) of 1958 Geneva Convention on
legally obligatory, states when performing a the Continental Shelf. should be determined by
custom must do so because they feel that they principle of equidistance unless another boundary
are legally bound to perform the custom. justified by special circumstances, since no such
3. State practice+opinion juris = customary law circumstance established the boundary must follow
Once established existence of specific usage it the equidistance line.
becomes necessary to consider ow state views its
own behavior. Court held: Art. 6 not form of a existing or emerging
customary intl law at time of drafting the convention
State practice can be seen in actual actions performed since the fact that reservations to Art. 6 was
by State both by way of acts and omissions), permissible under convention. Use of equidistance
statements made by authorized representatives in method was not obligatory for delimitation to
intl. for, or natl laws and judicial decisions that deals continental shelf areas since 39 states ratified and
w. intl. relations not emerge as important as widespread and
State practice Necessary when: representative participation.
1. Consistent and uniform,
2. Generally accepted by states In order to argue that a customary rule has
3. Of a certain duration (INSTANT CUTOM) emerged one needed to prove the objective elements
Related in Nicaragua Case contained important *state practice) passage of a considerable period of
clarifications in respect of inconsistent State practice: time was unnecessary (i.e duration) to form a
1. Foe a customary rule to come into force, not customary law.
necessary to have complete consistence in
state practice in respect of the rule ASYLUM CASE (COLUMBIA VS. PERU)
2. Inconsistent state practice does not affect the (not customary law, Peru not ratified Montevideo
formation or existence of a customary convention and low number of states signed it,
principle so long as the inconsistency is failed to prove consistent &uniform usage of
justified by state as breach of the tule custom)
3. This attempt at justifying a violation would
only make the rules customary law nature Opinio Juris – belief in state activity is legally
stronger obligatory. States will behave a certain way since
Regional customs – cust. Int. law can be general or they are convinced it is binding them to do so. when a
particular. state acts not merely from custom but from a sense of
legal obligation.  Such a sense of responsibility may
Particular law embodies local or regional customs. therefore be implied from a state’s acts or omissions.
This type doesn’t bind all states but binds some Example: adoption of EEZ
States that share common interest or that are in a
similar geographical location. EEZ- an area of coastal water and seabed with a
certain distance of country’s coastline to which
NORTH SEA CONTINENTAL SHELF CASE – country claims exclusive rights of fishing drilling and
(Not customary law at time of drafting, other economic activities. Zone extend from 3 to 12
reservations on art. 6 special agreement is nautical miles.
allowed) Issue: Colombia competent country that grants
asylum, to unilaterally qualify the offence for purpose
juridical foundation of modern law of maritime of asylum, under treaty law and intl law? Court states
delimitation. normal course of granting diplomatic asylum a
diplomatic representative has competence to make a
Bilateral negotiations. Demark and nether land provisional qualification of the offence and the
considered entire continental shelf, delimitation territorial State has right to give consent to this
should be base on equidistance principle. qualification.

equidistance principle -  legal concept in maritime Court held: there was no expressed or implied right
boundary claims that a nation's maritime boundaries of unilateral and definitive qualification of state that
should conform to a median line that grants asylum under the Havana Convention or
is equidistant from the shores of neighboring relevant principles of intl law. The Montevideo
nations.  convention of 1933, which accepts the right of
  unilateral qualification and on which Colombia relied
equidistance line is one for which every point on the justify its unilateral qualification was not ratified by
line is equidistant from the nearest points on the Peru.
baselines being used.
The convention, per say was not binding on Peru and
Issue: what principles and rules of intl. law considering the low numbers of ratifications, the
applicable to delimitation as between the parties of provisions of the latter Convention cannot be said to
the areas of the continental shelf in the North Sea reflect customary intl. law.
which appertain to each of them beyond the partial
boundary. Colombia did not establish existence of regional
customer because it failed to prove consistent and
uniform usage of alleged custom by relevant states. NICARAGUA CASE:
Fact that a particular state practice was followed (CIL apply when there is multilateral reservation?
because of political expediency and not because of Multilateral reservation cannot prevent court in
belief that practice is binding on the state by way f applying CIL since it exists independently of
legal obligation (opinion juris) is detrimental to the treaty law)
formation of customary law.
Even if treaty norm and customary norm gave exactly
Peru no legal obligation to grant safe passage either the same content, the operation of treaty process
because of Havana convention or customary law. art. must not necessarily deprive the customary norm of
2 of Havana convention results in obligation of its separate applicability.
territorial state to grant safe passage only after it Nor can the multilateral treaty reservation be
requests asylum granting Colombia to send person interpreted as meaning that once applicable to a
granted asylum outside peru. Peruvian govt. not given dispute, it would exclude the application of any
asked that Torre leave Peru. In the contrary, it rule of customary intl. law the content of which was
contested the legality of asylum granted to him and the same as or analogous to, that of the treaty law
refuse to grant safe conduct. rule which had caused the reservation to become
effective.
There exists a practice whereby diplomatic
representative who grants asylum immediately Even if states in question are bound by these rules
requests a safe conduct without awaiting a request both on level of treaty law and on that of customary
from the territorial state for departure of refugee but intl. law these norms retain a separate existence.
this practice does not and cannot mean that state
whim such request safe-conduct addressed is legally In other words:
bound to accede to it. If Treaty & CIL has same content, applicability of
treaty does not deprive CIL’s separate applicability.
PRINCIPLE OF NON-REFOULMENT – principle
under human rights law which indicates practice of Multilateral treaty reservations: if treaty is applicable
not forcing refugees or asylum seekers to return to a it does not exclude application of CIL.
country which they are liable to be subjected to
persecution. It prohibits states from transferring or if both bound by treaty and CIL , these norms retain
removing indiv. From their jurisdiction or effective separate existence.
control when there are substantial grounds for
believing hat the person would be at risk. Issue: was court competent to give its determination
based on customary intl. law when there was a
QUESTIONS: multilateral treaty reservation?
1. Can state practice alone establish customary
law? No, State practice alone is not enough it must be Ruled: multilateral treaty reservations cannot
generally recognized as a legal obligation (Opinio preclude court from relying on customary intl. law
Juris) . Both will serve as an evidence for the since it exists independently of treaty law.
establishment of customary international law.
Breach of principle of non-intervention when US
2. Is there a length of time required for a practice supply logistics who are against of Nicaragua which is
to become a customary law? No, provided that part of customary inlt. Law.
majority number of states practice such custom.
Where we have Instant Custom which the Customary Court examined relationship in 2 contexts to
law may emerge even within a relatively short period demonstrate the customary and treaty law co-exist.
of time, if within that period States Practice has been 1. Where customary law principles were
uniform and extensive and such act is a spontaneous identical to treaty provisions
activity of a great number of states supporting a (principle of CIL is identical to treaty provisions)
specific line of action. 2. Where there were different rights or
obligations under customary and treaty law
3. Define opinio juris. It is a general and consistent in respect of same subject matter
practice of states followed by them from a sense of (different rights from treaty to CIL but same
legal obligation. It is a belief that state practice is subject matter)
legally obligatory and that when States when
performing a custom must do so because they feel Note:
that they are legally bound to perform the custom. *customary intl. law which are subsequently codified
into treaties will continue to exist side by side w/
4. Why are international customary laws binding? treaties
It is binding because the purpose of the international
law is to regulate the relationship between States and *State action and opinion juris are taken together and
regulates the armed conflicts arising between States. not rejected by significant number of states become
part of cust. Intl. law
5. In what form may evidence of State practice
take? Evidence of State practice may thus take a *Principles of non-use of force and non-
variety of forms, including the conduct itself. What is intervention, continue to be binding as part of
significant is that the source must be reliable and customary intl. law, despite the operation of
unequivocal, and should reflect the consistent provisions of conventional law in which they have
position of the State concerned. been incorporated.
QUESTIONS: way they do because they consider it obligatory to
1. May a norm be both a treaty rule and a behave thus or do they do it only as a matter of
customary norm at the same time? courtesy? Opinio juris or the belief that a certain
No they have separate existence and applied form of behavior is obligatory, is what makes practice
independently. even if Treaty and Customary an international rule. Without it, practice is not law.
International law have the same content, the What is a soft law? Is it an international law?
applicability of treaty does not deprive Customary Explain. an expression of non-binding norms,
International Law’s separate applicability. Even if principles and practices that influence state behavior.
states in question are bound by these rules both on
level of treaty law and on that of customary Treaty vs. Domestic legislation- when the two
international law these norms retain a separate instruments relate to the same subject, try to give
existence. effect to both; if inconsistent, the later in date will
control, provided that the treaty stipulation is
2. What is your understanding on the duality of a self- executing. But the  rule applies in domestic
norm? It is when 2 norms have the same sphere. A treaty, even if contrary to a later statute, is
applicability and content which has both legal binding in international law.
binding effect and operates distinctly to each other.
ALTERNATIVE ANSWERS:
3. How will you reconcile conflict between 1. May a norm be both a treaty rule and a
customary international law and a treaty? customary norm at the same time?
Even if treaty norm and customary norm gave exactly Yes. When a customary norm exists already and the
the same content, the operation of treaty process customary norm is codified into a treaty, the States
must not necessarily deprive the customary norm of bound to it will now have a norm that is both a treaty
its separate applicability. rule and a customary norm. When the codification of
Nor Multilateral treaty reservations, when a treaty is customary international law into a treaty is
applicable it does not exclude the application of subsequently adopted having the elements of
Customary International Law. customary law, the treaty becomes the basis of the
formation of a new customary norm.
4. May a State derogate from customary
international law through a treaty? 2. What is your understanding on the duality of a
Yes, international law does allow for states to limit norm?
the full application of a treaty, or clarify their specific The duality of a norm treats the international and
understanding of the legal content. This is domestic systems of law as separate and
done through reservations, declarations independent. A State may allow direct incorporation
and derogations. Withdrawal by one party from a of customary international law but requires
bilateral treaty terminates the treaty. international treaties to be transformed into
5. What is your understanding of hierarchy of domestic legislation before they can have direct
international obligations? It is when the effect within a state.
importance of an international obligation is 3. How will your reconcile conflict between
determining how they rank in authority  customary international law and a treaty?
Treaties can also serve as evidence of state practice.
OTHER NOTES: There may come a time that CIL can actually be
 May generally accepted principles of changed through treaties. When such entrance into
international law form part of the law of the land treaties, especially in a form of a convention where
even if they do not derive from treaty membership occurs, membership would be big
obligations? Explain. enough to comply with the requirement of at least
uniformity - and we add a good lapse of time to
ANS:   Yes. Generally accepted principles of determine also a consistency of the practice. Then,
international law, by virtue of the CIL can actually be replaced by treaties. In the same
incorporation clause of the Constitution, form manner, treaties can also establish new CIL.
part of the laws of the land even if they do not
derive from treaty obligations. 4. May a State derogate from customary
What is customary international law? Explain. international law through a treaty?
  States can deviate from customary international law
ANS:   Custom or customary international law means by enacting treaties and conflicting laws, but jus
“a general and consistent practice of states followed cogens are non-derogable.
by them from a sense of legal obligation
(opinion juris)”. 5. What is your understanding of hierarchy of
  international obligations?
The initial factor for determining the existence of In the travaux preparatoires (preparatory work) of
custom is the actual behavior of states. This includes Art. 38, it was suggested that the sources as listed
several elements: duration, consistency, and should indicate hierarchy of sources but it was not
generality of the practice of states. carried out. There was only the agreement to
  categorize these sources as either primary or
The required duration can be either short or long. subsidiary. The sources of international law are not
 Duration therefore is not the most important therefore arranged in a strict hierarchical order.
element. More important is the consistency and the However, while there is no hierarchy among sources,
generality of the practice. there is a consensus among states, that of these
  sources, jus cogens should be considered as always
 Once the existence of state practice has been superior to the others.
established it becomes necessary to determine why
states behave the way they do. Do states behave the
VIDEO DISCUSSION: Decision: Turkey, by instituting criminal
proceedings against Demons, did not violate
JURISDICTION OF STATES international law.
Jurisdiction in international law – is a practical
authority given to a legal body to deal with legal Establishing Jurisdiction: Does Turkey need to
matters by implications, in Public Intl. law, the support its assertion of jurisdiction using an existing
concept of jurisdiction has a strong link with rule of international law or is the mere absence of a
sovereignty independence which they pass on with prohibition preventing the exercise of
the global system of equal states stating the laws jurisdiction enough?
related to persons of activities in which they have a
legal interest. The first principle: A State cannot exercise its
jurisdiction outside its territory unless an
Territorial Jurisdiction of the States – derived international treaty or customary law permits it to do
from state sovereignty and constitutes several so. This is what we called the first principle of
features authority of the state over persons, property the Lotus Case.
and events which are primarily within its territories
Court held that:
State authority has the power to prescribe, enforce “Now the first and foremost restriction imposed by
and adjudicate rules of law. international law upon a State is that – failing the
existence of a permissive rule to the contrary – it may
Land, territorial sea natl. aircraft, natl, space, intl not exercise its power in any form in the territory of
water and natl. vessel. It does not only encompases another State. In this sense jurisdiction is certainly
the crime committed on its territory but also the territorial; it cannot be exercised by a State outside
crimes that have effects within its territory. In such a its territory except by virtue of a permissive rule
case, a concurrent jurisdiction occurs. derived from international custom or from a
convention.”
UK VS. NORWAY:
In this case the UK requested the Intl Court of Justice The second principle: Within its territory, a State
(icj) to determine how far Norway territorial claim may exercise its jurisdiction, in any matter, even if
extended to sea and to provide some compensation there is no specific rule of international law
because Norway interfered in the fishing vessel of the permitting it to do so. In these instances, States have
UK and also claimed that Norway’s claim to such a wide measure of discretion, which is only limited by
extent was against intl. law. The court ruled the the prohibitive rules of international law.
Norway’s claim to the waters was consistent with the
intl. Law regarding the part of the sea space. The Court held that:
“
It does not, however, follow that international law
Criminal Jurisdiction Protective Principle prohibits a State from exercising jurisdiction in its
own territory, in respect of any case which relates
Criminal Jurisdiction – is where the powers of the to acts which have taken place abroad, and in
Court are described in dealing with a case where a which it cannot rely on some permissive rule of
person is accused of an offence. Criminal Jurisdiction international law. Such a view would only be tenable
used in many laws like Constitutional Law and PIL. if international law contained a general prohibition to
States to extend the application of their laws and the
1. to control the relation between States or between jurisdiction of their courts to persons, property and
one state and another acts outside their territory, and if, as an exception to
this general prohibition, it allowed States to do so in
2. To control the relationship between the federal certain specific cases. But this is certainly not the
Court and Domestic court case under international law as it stands at present.
Far from laying down a general prohibition to the
[Link] where he has committed the offence and not effect that States may not extend the application
In any other states Also, the law of that state should of their laws and the jurisdiction of their courts to
be codified law. persons, property and acts outside their territory, it
leaves them in this respect a wide measure of
SS Lotus Case (France vs. Turkey) discretion, which is only limited in certain cases by
There was a declaration by Turkey over the French prohibitive rules; as regards other cases, every State
citizen who was the first officer of the ship that remains free to adopt the principles which it regards
collided with a Turkish ship on the high sea. It was as best and most suitable. This discretion left to
challenged by France as a violation of the intl. law States by international law explains the great variety
of rules which they have been able to adopt without
A collision occurred in the high seas between a French objections or complaints on the part of other States
vessel and a Turkish vessel. Victims were Turkish In these circumstances all that can be required of a
nationals and the alleged offender was French. Could State is that it should not overstep the limits which
Turkey exercise its jurisdiction over this French international law places upon its jurisdiction; within
national under international law? these limits, its title to exercise jurisdiction rests in
its sovereignty.” 
Facts : Did Turkey violate international law when This applied to civil and criminal cases. If the
Turkish courts exercised jurisdiction over a crime existence of a specific rule was a pre-requisite
committed by a French national, outside Turkey? If to exercise jurisdiction, the Court argued, then “it
yes, should Turkey pay compensation to France? would…in many cases result in paralysing the action
of the courts, owing to the impossibility of citing a
universally accepted rule on which to support the
exercise of their [States’] jurisdiction” 
 the offence non-existent It is only natural that each
The Court based this finding on the sovereign will of should be able to exercise jurisdiction and to do so in
States. It held that: “International law governs respect of the incident as a whole. It is therefore a
relations between independent States. The rules of case of concurrent jurisdiction.”
law binding upon States therefor emanate from their
own free will as expressed in conventions or by Customary International Law
usages generally accepted as expressing principles of The Lotus case gave an important dictum on
law and established in order to regulate the relations creating customary international law. France had
between these co-existing independent communities alleged that jurisdictional questions on collision
or with a view to the achievement of common aims. cases are rarely heard in criminal cases, because
Restrictions upon the independence of States cannot States tend to prosecute only before the flag State.
therefore be presumed” France argued that this absence of prosecutions
[Note: This was one of the more debated aspects of the points to a positive rule in customary law on
judgement. Some argued that the Court placed too collisions. The Court disagreed and held that, this:
much emphasis on sovereignty and consent of States would merely show that States had often, in practice,
(i.e. took a strong positivist view)]. abstained from instituting criminal proceedings, and
not that they recognized themselves as being obliged
Criminal Jurisdiction: Territorial Jurisdiction to do so; for only if such abstention were based on
France alleged that the flag State of a vessel their being conscious of having a duty to abstain
has exclusive jurisdiction over offences committed on would it be possible to speak of an international
board the ship in high seas. The Court disagreed. It custom. The alleged fact does not allow one to infer
held that France, as the flag State, did not enjoy that States have been conscious of having such a
exclusive territorial jurisdiction in the high seas in duty; on the other hand, as will presently be seen,
respect of a collision with a vessel carrying the flag of there are other circumstances calculated to show that
another State (paras 71 – 84). The Court held that the contrary is true.” 
Turkey and France both have jurisdiction in respect In other words, opinio juris is reflected not only in
of the whole incident: in other words, there acts of States (Nicaragua Case), but also in omissions
was concurrent jurisdiction. when those omissions are made following a belief
The Court held that a ship in the high seas is that the said State is obligated by law to refrain from
assimilated to the territory of the flag State. This acting in a particular way.
State may exercise its jurisdiction over the ship, in
the same way as it exercises its jurisdiction over its in the Lotus case: that which is not prohibited is
land, to the exclusion of all other States. In this case, permitted under international law. He criticised the
the Court equated the Turkish vessel to Turkish Lotus dictum as an out dated, 19th century positivist
territory. The Court held that the “… offence approach that is excessively differential towards
produced its effects on the Turkish vessel and State consent. He said that the Court should have
consequently in a place assimilated to Turkish considered the possibility that international law can
territory in which the application of Turkish criminal be deliberately neutral or silent on the international
law cannot be challenged, even in regard to offences lawfulness of certain acts. Instead of concluding that
committed there by foreigners.” The Court concluded an the absence of prohibition ipso facto meant that a
that Turkey had jurisdiction over this case. It further unilateral declaration of independence is permitted
said: under international law, the  Court should have
  “If, therefore, a guilty act committed on the high seas inquired whether under certain conditions
produces its effects on a vessel flying another flag or international law permits or tolerates unilateral
in foreign territory, the same principles must declarations of independence
be applied as if the territories of two different States
were concerned, and the conclusion must therefore Other:
be drawn that there is no rule of international law Brief Fact Summary. Turkey’s (D) assertion of
prohibiting the State to which the ship on which the jurisdiction over a French citizen who had been the
effects of the offence have taken place belongs, from first officer of a ship that collided with a Turkish ship
regarding the offence as having been committed in its on the high seas was challenged by France (P) as a
territory and prosecuting, accordingly, the violation of international law.
delinquent.” Synopsis of Rule of Law. A rule of international
The Lotus Case is also significant in that the law, which prohibits a state from exercising criminal
Court said that a State would have territorial jurisdiction over a foreign national who commits acts
jurisdiction, even if the crime was committed outside outside of the state’s national jurisdiction, does not
its territory, so long as a constitutive element of the exist.
crime was committed in that State. Today, we call this
subjective territorial jurisdiction. In order for Facts. A collision occurred shortly before midnight
subjective territorial jurisdiction to be established, on the 2nd of August 1926 between the French (P)
one must prove that the element of the crime and the mail steamer Lotus and the Turkish (D) collier Boz-
actual crime are entirely inseparable: in other words, Kourt. The French mail steamer was captained by a
if the constituent element was absent – the crime French citizen by the name Demons while the
would not have happened. Turkish collier Boz-Kourt was captained by Hassan
Bey. The Turks lost eight men after their ship cut into
The Court said: two and sank as a result of the collision.
“
The offence for which Lieutenant Demons appears to Although the Lotus did all it could do within its
have been prosecuted was an act – of negligence or power to help the ship wrecked persons, it continued
imprudence – having its origin on board the Lotus, on its course to Constantinople, where it arrived on
whilst its effects made themselves felt on board the August 3. On the 5th of August, Lieutenant Demons
Boz-Kourt. These two elements are, legally, entirely was asked by the Turkish (D) authority to go ashore
inseparable, so much so that their separation renders to give evidence. After Demons was examined, he was
placed under arrest without informing the French (P)  Countries can act in any manner which is not
Consul-General and Hassan Bey. Demons were expressly prohibited
convicted by the Turkish (D) courts for negligence  A high mark of positivism, that the state must
conduct in allowing the accident to occur. keep control over sovereignty
This basis was contended by Demons on the ground
that the court lacked jurisdiction over him. With this, The Court also stated that France and Turkey had
both countries agreed to submit to the Permanent concurrent jurisdiction over cases arising abroad on
Court of International Justice, the question of a French flag vessel on the high seas. Many treaties
have overruled these and said that only the flag
State has jurisdiction.

Issue:
a.) whether the exercise of Turkish (D) criminal Types of Criminal Jurisdiction
jurisdiction over Demons for an incident that
occurred on the high seas contravened international  Territorial Jurisdiction
law. (jurisdiction over territory) –
geographical boundary of a court’s
b.) Does a rule of international law which prohibits a jurisdiction
state from exercising criminal jurisdiction over a  National jurisdiction ((jurisdiction
foreign national who commits acts outside of the over a person) – permits a country to
state’s national jurisdiction exist? exercise its criminal jurisdiction over
the nationals accused of criminal
Held. (Per curiam) No. A rule of international law, offences in other States
which prohibits a state from exercising criminal  Protective Jurisdiction
jurisdiction over a foreign national who commits acts (jurisdiction necessary to protect a
outside of the state’s national jurisdiction, does not state )– exercise jurisdiction over
exist. Failing the existence of a permissive rule to the conduct outside its territory that
contrary is the first and foremost restriction imposed threatens its security
by international law on a state and it may not  Passive Personality – state may
exercise its power in any form in the territory of apply law particularly criminal law to
another state. an act committed outside its national
where the victim of the act was
This does not imply that international law prohibits a national.
state from exercising jurisdiction in its own territory, allows states, in limited cases, to
in respect of any case that relates to acts that have claim jurisdiction to try a foreign
taken place abroad which it cannot rely on some national for offenses committed
permissive rule of international law. In this situation, abroad that affect its own citizens
it is impossible to hold that there is a rule of  Universality Jurisdiction – claim
international law that prohibits Turkey (D) from jurisdiction over certain crimes committed by
prosecuting Demons because he was aboard a French any person from anywhere in the world,
ship. This stems from the fact that the effects of the without any relation to territory, nationality
alleged offense occurred on a Turkish vessel. of special State interest.
Hence, both states here may exercise concurrent
jurisdiction over this matter because there is no rule  Universally identified over certain acts
of international law in regards to collision cases to considered as Intl. crimes (war crimes, a
the effect that criminal proceedings are exclusively crime against humanity, genocide)
within the jurisdiction of the state whose flag is  International crimes
flown.
Mubarak Ali Ahmad vs. The State of Bombay
In other words: Both States may exercise concurrent  Mubarak ali made a false representation to
jurisdiction over this case since there is no rule of the complainant in Bombay saying that he has
international law with regards to issues on collision a ready stock of rice so that the applicant
cases to the effect that criminal proceedings are should sent the receipt of money to the
exclusively within the jurisdiction of the state whose complainant who was anxious to import rice
flag is flown. urgently and to receive the amount on the
belief such representations.
Discussion. In 1975, France enacted a law  During the period of the commission of the
regarding its criminal jurisdiction over aliens offence has not stepped in India and he was in
because of this the situation surrounding this case. Karachi, so he cannot be tried in the Indian
The law stipulates that aliens who commit a crime Courts.
outside the territory of the Republic may be  The trial which is ending in a court can be
prosecuted and judged pursuant to French law, when tried for the second time, Hence the convict
the victim is of French nationality. This is contained was unsustainable.
in 102 Journal Du Droit International 962 (Clunet  Though the applicant was not present in India
1975). Several eminent scholars have criticized the during the commission of the offence
holding in this case for seeming to imply that  As the appellant surrenders to the Indian
international law permits all that it does not forbid. Authorities under the Fugitive Offenders Act
1881. There is no such provision in this Act
International law is system of freedom preventing arrest in India for trial of a fresh
offence
  Appellant who was a Pakistan national conventions condemn hijacking and hostage taking.
convicted for cheating in business The passive personal principle is also relevant,
which applies to offenses against a nation’s citizens
Active nationality – this principle for the protection abroad. The United States has been slow to recognize
of interest of the State from abroad this principle, but it is now generally agreed upon.
 Strict application on territory could be International law having been disposed of on this
harmful to the peaceful existence of issue, domestic law must now be discussed. The
international society Hostage Taking Law, at subsection (b)(1)(A), clearly
 The state has its fundamental right to apply includes an offender that has seized or detained a U.S.
its laws to prosecute illegal conduct citizen. The language could not be plainer. With
regard to the Destruction of Aircraft Act and the
Passive Nationality - Treaty-based passive national Federal Aviation Act, 18 U.S.C. Â § 31, that the law was
is more effective than Statue based passive intended to apply only when the aircraft in question
nationality. either began or ended its flight in the United States.
Since the flight in question did not do this, the Act
 Jurisdiction can be exercised by the State does not apply. Motion denied in part; granted in
where the offence tool place part.
 This has been opposed by common law states Discussion:
but due to the transnational crimes, it gets protective (jurisdiction necessary to protect a
approved. state.) Of the five generally recognized jurisdictional
grounds, the passive personal principle has been met
with the most resistance by U.S. courts and officials.
The Shooner Exchange vs. McFaddon
United states vs. Fawz Yunis There were two Americans who laid down their
Brief Fact Summary claims of ownership and entitlements to the
Yunis (Defendant) argued that the Government Schooner Exchange
(Plaintiff) could not prosecute him for a hijacking
that he perpetrated when its only connection to the The Court held that the national ships during the war
United States was that several Americans were on are free from any obligation imposed due to the
board the plane. friendly relations with another State. A nation’s
Synopsis of Rule of Law jurisdiction within its sovereign territory is exclusive
The federal government may prosecute an airline and perfect.
hijacker even if the hijacking’s only connection with
the United States was the presence of Americans on Protective Principle – identified that a sovereign
board the plane. can adopt a statue that criminalizes act or any
Facts conduct which occurs outside the borders and where
Yunis (Defendant) and several accomplices hijacked a that conduct affects that sovereign state. Under this
Jordanian airliner while it was on the ground in principle a nation can adopt laws related to crimes
Beirut. The plane flew to several locations around the which obstruct the functions of govt. or pressurize its
Mediterranean Sea, and eventually flew back to security.
Beirut, where the hijackers blew up the plane and
then escaped into the hills. The only connection Article 51 UN CHARTER - . Nothing in the
between the whole event and the United States was present Charter shall impair the inherent right of
that several Americans were on board the whole individual or collective self-defence if an armed
time. Yunis (Defendant) was indicted for violating the attack occurs against a Member of the United
Hostage Taking Act, 18 U.S.C. Â § 1203. He was Nations, until the Security Council has taken
apprehended, and later indicted under the measures necessary to maintain international peace
Destruction of Aircraft Act, 18 U.S.C. Â § 32. He moved and security.
to dismiss on grounds of jurisdiction.
Issue NICARAGUA VS. USA
May the federal government prosecute an airline  When a pro soviet govt. called the Sandini
hijacker even if the hijacking’s only connection with States came to power in Nicaragua, the US
the United States was the presence of several authority were alarmed, as this was the
Americans on board the plane? height of the cold war.
Held  Reahan administration decided to support
(Parker, J.) Yes. The federal government may the rebel forces in Nicaragua called
prosecute an airline hijacker even if the hijacking’s Somosistas, who was a USA citizen
only connection with the United States was the  Central intelligence Agency ran extensive
presence of Americans on board the plane. There illegal and secret operations targeting the
must be jurisdiction under both international and Nicaraguan Army and air forces, supplied
domestic law in order for jurisdiction to exist in the arms, money and kidnapped Nicaraguan
situation of this case. International law relates to the Citizens.
power of Congress to have extraterritorial  Nicaragua citizens brought case against USA
application of its law; domestic law relates to its for violating treaty of UN Charter.
intent to do so. International law recognizes several  US contested that IC did not have jurisdiction
bases for a nation to give extraterritorial  ICJ found out that USA had knowingly and
application to its laws. One is the universal principle. intentionally violated the provisions of UN
Some acts are considered to be so heinous and Charter, general rules of Intl. and had clearly
contrary to civilization that any court may assert violated the territorial severity of
jurisdiction. The acts that fall within this category are Nicaragua.
mainly defined by international convention. The
universal principle applies because numerous
Cross Frontier Jurisdiction – court may have destruction or
jurisdiction over any conduct that applies outside its damage to an
jurisdiction. While taking any legal action of disputes aircraft
between multiple parties and those other parties  Any
who will be examined, similarly in various information
jurisdiction in which proceedings to resolve the which is know
disputes may properly be commenced and the to be false,
decisions from the outcomes will be made in such thereby
location. endangering
safety of
ACHILLE LAURO INCIDENT – US had ordinally aircraft in
planned to charge the terrorist with piracy under its flight
criminal code of 1909. Whoever on the high seas, It lays the principle of
commits a crime of piracy as defined by the law of aut dudere aut
nations will be brought into or if found in the United judicare that the party
States, shall be sentence to imprisoned for life. Due to to the treaty must
the murder of the passengers and crew members of either:
the ship, the US govt. can claim jurisdiction under  Prosecution a
passive personality principle and can accuse the person who
terrorists under Crimes ACT, 1970. commits once
offence
1994 ISRAEL-JORDAN PEACE TREATY – under  Send the
which the Israel criminal laws are applicable for the individual to
israelli nationals and the activities only involve them another state
in the specified areas. Under Jordan’s Sovereignty, tat request
the measures can be taken in the areas by Israel to extradition or
enforce certain laws. the
prosecution of
Principles: Borders, water, diplomatic relations and the same
cooperation, Security and defense, Palestinian crime
refugees
What are the conflicts that arose in jurisdiction?
Multiple Jurisdiction Grounds 1. The jurisdiction of the State is parallel with the
TOKYO MONTREAL jurisdiction of another state. More than two-state can
CONVENTION, 1963 CONVENTION exercise the jurisdiction against the same person or
Application for the MULTILATERAL on the same matter
offences against the TREATY WHICH
Penal Laws and acts STATES AGREE TO 2. Even the state having territorial jurisdiction cannot
risks the safety of the Prohibit and punish, claim over the states having custody over the
persons or property who threatens the accused.
on board civilian safety of civil aviation
aircraft while in flight it only apples CONLUSION:
and engaged in exclusively to civilian However, the individual State plays a leading role in
international air aircraft but does not the worldwide org. in spite of having multilateral
navigation apply to customs, law agreements and centralized agreements. There must
enforcement or be friendly relations between the States to avoid
military aircraft conflicts on the territorial borders. Territorial
For the purpose of Criminalizes the ff jurisdiction and State jurisdiction plays an important
further consideration, behavior: role as it is very important to follow all the rules
finalization adoption stipulated in different provisions.
and opening for the  If an act is
signature of tome committed on RESIDENTIAL DECREE NO 1069
draft 61 states of 5 a person who PRESCRIBING THE PROCEDURE FOR THE
intl. org were present. is onboard an EXTRADITION OF PERSONS WHO HAVE
aircraft and is COMMITTED CRIMES IN A FOREIGN COUNTRY
likely to  "Extradition" The removal of an accused from the
endanger the Philippines with the object of placing him at the
safety of disposal of foreign authorities to enable the
aircraft requesting state or government to hold him in
 Destroying or connection with any criminal investigation directed
damaging against him or the execution of a penalty imposed on
such an him under the penal or criminal law of the requesting
aircraft in state or government.
such a way
which is likely Section 3. Aims of Extradition. Extradition may be
to endanger granted only pursuant to a treaty or convention, and
the safety in with a view to:
flight (a) A criminal investigation instituted by authorities
 A device of of the requesting state or government charging the
substance accused with an offense punishable under the laws
placed or for both of the requesting state or government and the
causing
Republic of the Philippines by imprisonment or other jurisdiction as counsel de oficio for the accused to
form relevant extradition treaty or convention; or assist him in the hearing.
(b) The execution of a prison sentence imposed by a Section 8. Hearing in Public; Exception; Legal
court of the requesting state or government, with Representation.
such duration as that stipulated in the relevant (1) The hearing shall be public unless the accused
extradition treaty or convention, to be served in the requests, with leave of court, that it be conducted in
jurisdiction of and as a punishment for an offense chamber.
committed by the accused within the territorial (2) The attorney having charge of the case may upon
jurisdiction of the requesting state or government. request represent the requesting state or
Section 4. Request; By whom made; Requirements. government throughout the proceeding. The
(1) Any foreign state or government with which the requesting state or government may, however, retain
Republic of the Philippines has entered into private counsel to represent it for particular
extradition treaty or convention, only when the extradition case.
relevant treaty or convention, remains in force, may (3) Should the accused fail to appear on the date set
request for the extradition of any accused who is or for hearing, or if he is not under detention, the court
suspected of being in the territorial jurisdiction of the shall forthwith issue a warrant for this arrest which
Philippines. may be served upon the accused anywhere in the
(2) The request shall be made by the Foreign Philippines.
Diplomat of the requesting state or government, Section 9. Nature and Conduct of Proceedings. (1) In
addressed to the Secretary of Foreign Affairs, and the hearing, the provisions of the Rules of Court
shall be accompanied by: insofar as practicable and not inconsistent with the
(a) The original or an authentic copy of either - summary nature of the proceedings, shall apply to
(1) the decision or sentence imposed upon the extradition cases, and the hearing shall be conducted
accused by the court of the requesting state or in such a manner as to arrive as a fair and speedy
government; or disposition of the case.
(2) the criminal charge and the warrant of arrest (2) Sworn statements offered in evidence at the
issued by the authority of the requesting state or hearing of any extradition case shall be received and
government having jurisdiction of the matter or some admitted as evidence if properly and legally
other instruments having the equivalent legal force. authenticated by the principal diplomatic or consular
(b) A recital of the acts for which extradition is officer of the Republic of the Philippines residing in
requested, with the fullest particulars as to the name the requesting state.
and identity of the accused, his whereabouts in the Section 10. Decision. Upon conclusion of the hearing,
Philippines, if known, the acts or omissions the court shall render a decision granting the
complained of, and the time and place of the extradition, and giving his reasons therefor upon
commission of these acts; showing of the existence of a prima facie case.
(c) The text of the applicable law or a statement of Otherwise, it shall dismiss the petition.
the contents of said law, and the designation or Section 11. Service of Decision. The decision of the
description of the offense by the law, sufficient for court shall be promptly served on the accused if he
evaluation of the request; and was not present at the reading thereof, and the clerk
(d) Such other documents or information in support of the court shall immediately forward two copies
of the request. thereof to the Secretary of Foreign Affairs through
Section 5. Duty of Secretary of Foreign Affairs; the Department of Justice.
Referral of Request: Filing of Petition. (1) Unless it Section 12. Appeal by Accused; Stay of Execution
appears to the Secretary of Foreign Affairs that the (1) The accused may, within 10 days from receipt of
request fails to meet the requirements of this law and the decision of the Court of First Instance granting
the relevant treaty or convention, he shall forward extradition cases shall be final and immediately
the request together with the related documents to executory.
the Secretary of Justice, who shall immediately (2) The appeal shall stay the execution of the decision
designate and authorize an attorney in his office to of the Court of First Instance.
Section 6. Issuance of Summons; Temporary Arrest; Section 15. Concurrent Request for Extradition. In
Hearing, Service of Notices. (1) Immediately upon case extradition of the same person has been
receipt of the petition, the presiding judge of the requested by two or more states, the Secretary of
court shall, as soon as practicable, summon the Foreign Affairs, after consultation with the Secretary
accused to appear and to answer the petition on the of Justice, shall decide which of the several requests
day and hour fixed in the order. We may issue a shall be first considered, and copies of the former's
warrant for the immediate arrest of the accused decision thereon shall promptly be forwarded to the
which may be served any where within the attorney having charge of the case, if there be one,
Philippines if it appears to the presiding judge that through the Department of Justice.
the immediate arrest and temporary detention of the Section 16. Surrender of Accused. After the decision
accused will best serve the ends of justice. Upon of the court in an extradition case has become final
receipt of the answer, or should the accused after and executory, the accused shall be placed at the
having received the summons fail to answer within disposal of the authorities of the requesting state or
the time fixed, the presiding judge shall hear the ace government, at a time and place to be determined by
or set another date for the hearing thereof. the Secretary of Foreign Affairs, after consultation
(2) The order and notice as well as a copy of the with the foreign diplomat of the requesting state or
warrant of arrest, if issued, shall be promptly served government.
each upon the accused and the attorney having Section 17. Seizure and Turn Over of Accused
charge of the case. Properties. If extradition is granted, articles found in
Section 7. Appointment of Counsel de Oficio. If on the the possession of the accused who has been arrested
date set for the hearing the accused does not have a may be seized upon order of the court at the instance
legal counsel, the presiding judge shall appoint any of the requesting state or government, and such
law practitioner residing within his territorial articles shall be delivered to the foreign diplomat of
the requesting state or government who shall issue sovereignty of state that is why they only relay on
the corresponding receipt therefor. cooperation within states.
Section 18. Costs and Expenses; By Whom
Paid. Except when the relevant extradition treaty If person found in another territory of a state which
provides otherwise, all costs or expenses incurred in is extradition treaty the two states can avail of it
any extradition proceeding and in apprehending, mechanism or upon request of the other state where
securing and transmitting an accused shall be paid by the court is located and court validly enforce its
the requesting state or government. The Secretary of states police. That is why we have an intl. police or
Justice shall certify to the Secretary of Foreign Affairs call Interpol, example: that nay be requested to
the amounts to be paid by the requesting state or implement process that have been allowed by the
government on account of expenses and costs, and other states but if other state would not this will
the Secretary of Foreign Affairs shall cause the amount of another rendition. That f we secure
amounts to be collected and transmitted to the jurisdiction over the person of another and if we
Secretary of Justice for deposit in the National want to bring the person to the jurisdiction of the
Treasury of the Philippines. court then it can be done in various ways, extradition
Section 20. Provisional Arrest.  is the most common way, voluntary rendition (arret)
(a) In case of urgency, the requesting state may, or abduction as practice by US. Consent is not given
pursuant to the relevant treaty or convention and no more.
while the same remains in force; request for
provisional arrest of the accused pending receipt of Hence having jurisdiction and enforcement of
the request for extradition made in accordance with decision of court is another.
Section 4 of this Decree.
(b) A request for provisional arrest shall be sent to Rendition – to delv. An indiv. From one state to
the Director of the National Bureau of Investigation, another or surrender if applicable to persons,
Manila, either through the diplomatic channels or Extradition is one basic forms of rendention.
direct by post or telegraph.
[Link]
JURISDICTION TO ENFORCE [Link]
[Link] of foreign nationals aboard
Jurisdiction, under intl. law means the authority to
affect legal interests.

3 kinds Extradition Deportation

[Link] to prescribe law – which the
authority of a state to make its policy applicable to the requesting state A unilateral act of
persons or activities expects under pact sunt the State because
[Link] to adjudicate – the authority of the servanda to receive the it is not dependent
state to subject particular persons or things to its extradited individual and upon the request
courts. there may be a request of the state not
[Link] to enforce – concerned with the dependent on a
authority of a state to use the resources of govt. to points to remember: treaty, the
induce or compel compliance with its law. This destination of the
includes [Link] derpote is relevant
 Authority to arrest [Link] dependent on a treaty because the act of
Arrest can be permitted with the consent of the state [Link] of the the deportation is
with the subject of the warrant maybe found if no deportee is irrelevant simply expelled of
consent then discusses later. the territory of a
Conditions: particular state
Jurisdiction can be exercise territorially depending [Link] be pursuant to a wherever you go
on the context. treaty will no longer be
[Link] to be extradited the business of a
There is Active & passive jurisdiction had been charged or deporting state.
convicted of extraditable
No specific or clear regime recognizing jurisdiction to offense
enforce which can be validated without consent of 3. extraditable offense is
the state this is because the arm of a state is extended either listed or covered by
to another. Jurisdiction to enforce may only be double or dual criminality
realized or actualized probably when the state have clause
established a treaty proving for a framework when
that happens there is a consent. Extradition is an action
wherein one jurisdiction
What about jurisdiction to enforce decision? delivers a person accused or
convicted of committing a
There cases where the wrong state exercise crime in another jurisdiction,
jurisdiction but were not able exercise jurisdiction over to the other's law
since it will affect the sovereignty of other states, one enforcement. It is a
of the problems of intl law. is enforcement. Although cooperative law enforcement
there is agreement accord had validly exercise procedure between the two
jurisdiction but the enforcement of its decision may jurisdictions and depends on
encounter problems later. In the same manner, even the arrangements made
the ICJ encounter problem to enforcement due to between them.
 still consider extraditable offense if punish by states
"Extradition" The removal of parties to the extradition treaty.
an accused from the If punishable in State A & B then it is extraditable
Philippines with the object of only if that is the intention of the parties.
placing him at the disposal of
foreign authorities to enable BASIC PRINCIPLES IN EXTRADITION
the requesting state or A. Obligation to extradite is treaty-based
government to hold him in B. Pacta sunt servanda applies
connection with any criminal C. Dual purposes 1. Prosecution and execution
investigation directed against D. Count not cover political offenses
him or the execution of a E. The rule of specificality must be follow
penalty imposed on him F. Ex post facto law prohibition does not apply
under the penal or criminal
law of the requesting state or ABDUCTION OF CRIMINALS in the territory of
government. another states is understood as intervention and
Extraterritoriality Territoriality therefore violates customary law and the UN charter
principle (art. 2 (4).

Extraterritorial jurisdiction which enables a "Subjects of International Law: States"

(ETJ) is the legal ability of a sovereign state to
government to exercise exercise exclusive States – an entity that a defined territory and
authority beyond its normal jurisdiction over permanent population, under the control of its own
boundaries. Any authority individuals and govt. and that engages in or has capacity to engage in
can claim ETJ over any other legal formal relations w/ other entities
external territory they wish persons within
When unqualified, ETJ its territory. The Facts of statehood:
usually refers to such an Lotus case was a a. Permanent population
agreed jurisdiction, or it will key court ruling on b. Define territory
be called something like the territoriality c. Govt.
"claimed ETJ". principle. d. Capacity to enter into relations with other
“Extraterritoriality” (in its - that a country states
diplomatic immunity sense) may regulate both
is particularly important to civil and criminal Permanent population
International Organizations matters within its -population does not have to be homogeneous
because it affects your legal sovereign borders. racially, ethnically, tribally, religiously, linguistically
rights about your data. It The Lotus case ot otherwise
would also be important to concerns a -must be settled population
state diplomatic missions. criminal trial
Extraterritorial jurisdiction which was the territory: the size of the territory does not matter.
is the situation when a state result of the 2
extends its legal power August 1926 Govt. – must be central govt. operating as a political
beyond its territorial collision between body within the law of the land and in effective
boundaries. .“At present the S.S. Lotus, a control of territory.
States are not generally French steamer,
required and the S.S. Capacity to enter to relations with other states –
under international human Bozkourt, a an entity is not a state unless it has competence,
rights law to regulate Turkish steamer, within is own constitutional system, to conduct intl.
the extraterritorial activitie in a region just relations with other states as well as the political,
s of businesses domiciled in north of Mytilene. technical and financial capabilities to do so.
their territory and/or
jurisdiction STATE SUCCESSION OR CONTINUITY – it is the
replacement of one state by another in the
Q: Territory ? responsibility for the intl. relations territory
Q: is there such requirement as to size for it to be
consider being a state? It must only 2 big difficult to Modes of succession of states:
administer to depend or too small just enough to 1. Decolonization
provide the needs of the people. No definite number 2. Annexation
of areas, so can go big or small. 3. Dissolution
4. Secessation from an existing state to
Q: Whats the difference between listed offenses from a new state or states
and offenses covered by double or dual 5. Absorption
criminality principal clause? 6. merger
Normally the state party to a treaty enumerates the
expenses covered by the extradition, states that there EFFECTS OF SUCCESSION OF STATES:
were some crimes will be punished by 1 state as a
result of a new form manner or way of committing a As a State property – when a state succeeds another
crime. state with respect to particular territory, the
capacities rights and duties of the predecessor state
Ex. Enter in extradition treaty in 1970s , I don’t think with respect to that territory terminate and are
people during 70 anticipated cybercrime best assumed b the successor state.
approach to adjust the terms of extradition treaty
and keep on adjusting every now and then. They may With respect to the public debts
  where part of the territory of a state becomes  Mandated and trust territories – mandated
territory of another state, local public debt territories were placed by league of nations
and the rights and obligations of the under one or other of victorious allies of
predecessor state under contracts relating to world war 1
that territory are transferred to the successor
state  Taiwan – seems to be a non-state territory
 where state is absorbed by another state, the which de jure is part of china, but it is too
public debt and rights and obligations under affluent and strategically located to be
contracts of absorbed state , pass to the overlooked by intl. actors
absorbing states
 where part of state becomes separate , local  The sovereign order of malta – Italian court
public debt and rights an d obligations of the o cassation in 1935 recognized its intl
predecessor state under contracts relating to personality
the territory of the new state, pass to the new
state.  The holy see and Vatican city – in 1929
Lateran treaty signed w. Italy which
With respects to Treaties recognized the state of Vatican cit and
 Moving treaty Frontier Rule/Moving sovereignty of the holy see in the field of intl.
Boundary Rule relations. Noteworthy they don’t have
when part of the territory of a state becomes permanent population.
territory of another state, the international
agreements of the predecessor state cease to TERRITORY
have effect in respect of the territory and the
intl. agreements of the successor state come  in intl. law means any area of the earth’s
into force there surface which is the subject of sovereign
 clean slate doctrine rights and interest.
when a part of a state becomes a new state,  A definite part of the surface of the earth
he new state does not succeeds to the intl. where the state normally exercises
agreements to which the predecessor state jurisdiction over persons or things to the
was party, unless, expressly or by implication, exclusion of another state
it accepts such agreements and the other  Territory includes land, maritime, areas,
party or parties there agree or acquiesce. airspace and outer space
 UTI Possedetis Rule – pre-existing boundary
and other territorial agreements continue to Why determine territory?
be binding notwithstanding The state could perform acts and be subject to duties
 When states absorbed which it could not perform and to which it would not
When a state is absorbed by another state, be subject if it lacked territory.
the intl. agreements of the absorbed state are
terminated and the intl. agreements of the 1987 Constitution Art. 1 National Territory
absorbing state become applicable to the The national territory comprises the Philippine
territory of the absorbed state archipelago, with all the islands and waters embraced
therein, and all other territories over which the
FUNDAMENTAL RIGHTS OF THE STATE Philippines has sovereignty or jurisdiction, consisting
Independence is the capacity of a state to provide its of its terrestrial, fluvial and aerial domains, including
own wellbeing and dev. Free form the domination of its territorial sea, the seabed, the subsoil, the insular
other states. Providing it does not impair or violate shelves, and other submarine areas. The waters
their legitimate rights. around, between, and connecting the islands of the
archipelago, regardless of their breadth and
Equality – obviously does not mean equality in dimensions, form part of the internal waters of the
political or economic power. Rather, it means quality Philippines.
of legal rights irrespective of the size or power of the
state MODES OF ACQUIRING TERRITORY
[Link] and occupation
Peaceful co-existence- the theory elaborated in  Oldest methods of acquiring title to territory
1954 as the 5 principles of co-existence by india and  Discovery alone is not enough to establish a
china and includes mutual respect for each other’s legal title, it is necessary that he discovered
affairs and the principle of equality. area must be physical occupied.
 Principle of continuity – if a state has made
SOME INCOMPLETE SUBJECTS IN RELATION TO a settlement, it has a right to assume
STATES AS SUBJECT OF INTL LAW sovereignty over all adjacent vacant territory,
which is necessary to the integrity and
 Protectorates – they are dependent states security of the settlement.
which have control over their internal affairs  OCCUPATION – intentional acquisition by a
but whose external affairs are controlled by state over a territory which at the time of
another state. claim not under thE sovereignty of any state.

 Federal states – central organ will have 2 requirements:

personality in intl. law but the extent of intl, 1. Territory subject of claim must not be under
personality of the component entities can be the sovereignty of any state ( terra nullius)
a problem. 2. The state must have effectively occupied the
territory, that is, the state claiming the
territory must have exercised immediate
 occupation (corpus occupandi on the 5. To take on passengers, mail destined for the
territory after it displayed its intention to territory of another agreeing nation to put
occupy (animus occupand) down passengers, mail coming from such
territory
[Link] – the continued occupation over long
period of time by one state of territory actually and OUTER SPACE – 1967 treaty on the exploration and
originally belonging to another state. use of outer space
-states parties to treaty shall immediately inform the
4 requirements: other states parties to the treaty or sec. general of the
1. Possession may be exercised in the form of UN of any phenomena they discover in outer space,
actual exercise of sovereign authority including moon and other celestial bodies, which
2. Possession must be peaceful and could constitute a danger.
uninterrupted
3. The possession must be public 3 fold division of navigable waters:
4. Possession must be for a long period of time From the standpoint of intl. law, the waters of the
earth are divided into
[Link] 1. Internal waters – parts of the sea within the
 transfer of sovereignty over a territory by land territory
the owner state to another state. Since 2. Territorial/external sea – waters that lie
cession is a bilateral transaction, the ceding seaward the territorial sea
and the acquiring parties must be states. 3. High or open seas – portion of the ocean
 Can be made through a treaty which specifies which is beyond the territorial jurisdiction of
the definite territory ceded. It may also be in any country.
the form of exchange of territory for another
or in the form of gift or donation or devise. Important distances with respect to the waters
 Example: around Phils.
-united states acquired the Philippines a. Territorial Sea – 12 nautical miles from
through the Treaty of Paris baseline
-Sovereignty over hong kong, in the middle b. Contiguous zone 12 n.m from edge of
of the 19th century, part of the colony of Hong territorial sea
Kong was ceded in perpetually to Britain c. Exclusive economic zone (EEZ) 200n.m
from the baseline
[Link]
 Taking possession of a territory through Territorial Sea – right of involuntary entrance/right
armed force of innocent passage
 The conquer must have had the intention of
acquiring the territory and not just of Contiguous Zone – exercise authority to prevent
occupying it temporarily infringement on custom fiscal, immigration or
 With the coming into force of the UN charter sanitary regulation
the acquisition of territory by conquest may
no longer be legal under intl. law EEZ – exclusive right to explore and exploit natural
[Link] resources
 Process by which new formations are legally
accumulated to old ones
 Sovereignty by operation of nature
 Example of this is the gradual movement of a
riverbed
 An addition to the river bank represents not
only an addition to the territory of the State,
but also causes an outward extension of the
marine frontier
Accretion Avulsion
Gradual increase of Sudden changed
territory y the action resulting for instance
of nature form the action of a
volcano

AIRSPACE – convention on intl. Civil Aviation also

known as Chicago Convention established principle
that states have the complete and exclusive
sovereignty over the air space above territory Territorial principle
The following are rules on boundaries under 3rd
5 air freedoms: restatement where state are not islands but parts of a
1. To flay across its territory without landing larger land mass thus:
2. To land for nontraffic purposes 1. Boundary separating the land areas of 2
3. To put down passenger, mall and cargo taken states is determined by acts of the states
on in the territory of the country whose expressing their consent to its location
nationality the aircraft possess 2. Unless a consent to a different rule has been
4. To the on passengers, mail, detained for expressed
territory of the country whose nationality the A. when the boundary between two states is a
aircraft possess navigable river, its locations is the middle of
the channel of navigation
 sovereign, its commercial activities or
B. When the boundary between two states is economic affairs, Stated differently, a state
non-navigable river or a lake its location is may be said to have descended to the level of
the middle of river or lake, an indiv. And can thus be deemed to have
tacitly given its consent to be sued only when
it enters into business contract. It does not
"State Immunity" or sovereign immunity s a apply where the contract relates to the
principle of intl law by virtue of which one sovereign exercise of its sovereign functions.
state cannot be sued before the courts of another
sovereign state without its consent . This is based on Sovereign immunity – covers the head of a state as
the principle of equality of states; par in parem non well as the state itself, its govt. its dept. and its
habet imperium (an equal has no power over an agencies. This immunity may however be voluntarily
equal) waived by a state.
The doctrine, which says, “ the state may not be sued
SOVEREIGN IMMUNITY IN [Link] AND INTL. without its consent” is clear that the state may be
LAW sued, with its consent, either expressly or impliedly

The principle enshrined in Sec. 3 Art. XVI of A. Express consent

Constitution that the “State may not be sued 1. Law expressly grants the authority to sue
without its consent” is both municipal law and also the State to any of its agencies
intl. law applicable to foreign states. B. Implied consent
1. The state enters into a private contract
2 conflicting concepts of sovereign immunity: -unless the contracts is merely incidental
 Classical or absolute theory – a sovereign to the performance of govt. Functions
cannot, without his consent, be made a
respondent in the courts of another sovereign 2 . The state enters into an operation that
 It is a theory of state immunity that does not is essentially a business operation
differentiate between commercial or private -unless operation is incidental to the
and sovereign acts in extending immunity to performance of a govt function,
them from the judicial process of foreign A state may waive its immunity from jurisdiction and
courts consequently submits itself to the jurisdiction of
 Chief Justice Marshall noted that “ the nation foreign court.
within its territory is necessarily exclusive
and absolute. It is susceptible of no limitation Right to existence and self-defense
not imposed by itself.  Self defense operates to protect essential
from irreparable harm in circumstance in
 Restrictive theory - the immunity of the which the alternative means of protection are
sovereign is recognized only with regard to unavailable.
public acts or acts jure imperri of a state, but  Right of existence and self-defense is the most
not with regard to private acts or acts jure comprehensive of all other rights of a state as
getionis. the latter accordingly flow from it.
 In the exercise of this inherent right, the
 This theory came about because of the entry states may take such measures including the
of sovereign states into purely commercial use of force, as may be necessary to
activities remotely connected with discharge counteract any danger to its existence
if govt. functions. This is particularly true  According to fenwick, state has absolute right
with respect to the communist states which of independence and the right of
took control of nationalized business independence goes with the tight of existence,
activities and international training. so the state is the necessary condition of any
other right, as such an independent state
 State immunities now extends only to acts would not tolerate any kind of interference
jure imperri and cannot be extended to with its sovereignty and whenever the
commercial, private and propriety acts jure sovereignty is in question the state has
gestionis. absolute right of self defense

 It has been necessary to distinguish the, Art. 51 of UN Charter

between sovereign and govt. acts (jure Article 51. Nothing in the present Charter shall
imperrii) and provate commercial and impair the inherent right of individual or collective
proprietary acts (jure gestonis self-defence if an armed attack occurs against a
 The restrictive application of satte immunity Member of the United Nations, until the Security
is not the rule in the US, the YUK and other Council has taken measures necessary to maintain
states in western Europe. Philippine also international peace and security.
adheres to the restrictive theory.
 From Phil. perpective, what determines its Art. 51 gives them the right of self-defense as an
ability to impose its law upon the foreign exceptional right under exceptional circumstance and
entitle would be the act of the foreign entity as an eternal right for existence the rights to self-
on whether the act is an aspect of its defense can be exercised to protect states eternal
sovereign function or a private act. right to existence.
 As held in US vs. Ruiz
The restrictive application of State immunity RIGHT OF SELF-DEFENSE UNDER CUSTOMARY
is proper only when the proceedings arise out LAW
of commercial transactions of the foreign
 Custom is one of the sources of intl. law
generally it grows out from intl. practice. Intl.
practice of the state largely includes positive
and negative attitude of state takin action on
certain situation and abstaining from the
same.
 Thus customary norms of intl. law grants to
state wide variety of right but then the state is
not absolutely free to use force to safeguard
each and every right
 Monros doctrine of USA

- Self defense- operates to protect essential rights

from irreparable harm in circumstance in which
the alternative means of protection of life is
unavailable.
- Right of existence and right of self defense is the
most comprehensive of all other rights of a state as
the latter accordingly flow from it.
- Right of independence goes with the right of
existence, so the existence of the state is the
necessary condition of any other right as such any
other independent state, would not tolerate any
kind of interference with its sovereignty and
whenever sovereignty is in question the state has
the right to uphold self defense.
- Article 2(4) of the United Nations Charter
Self defense is an absolute right, the act of self
defenses is justified not only under customary
international law but also under the UN Charter.
- Monroe doctrine of US old world and new world
has different systems and must remain distinct
spheres. About war. Interference of internal affairs
or power. Threat to peace, breach of peace- known
as international act of crime.
- Counter attack against illegal use of force is
justifiable if: reprisal is reasonable and force is
proportionate to the original illegal act. (Any
attempt to exceed the force causing excessive
destruction would be strictly condemned by the
Security Council.)
- Right of self defense is predominant when the
sovereignty of a state is in question.
- The concept of sovereignty is preponderant under
international law and it is on this base the
customary international law expects certain
commitment from the world community such as
the treaty obligation should be honored; the
nationals and the property of each should be
respected.
- A state is entitled to protect its territorial integrity,
political independence, freedom of navigation for
its ships, states economic welfare, protection of
nationals and right of humanitarian intervention.
- Intervention whether necessary for self
defense: act of self defense is justified if there is
imminent danger to the State, in most cases, threat
to the national were considered threat to the State.
The action must be proportionate to the harm
 done, this criteria is equally applicable to the immunity wen it gives consent at the time other
situation where the State claim to protect not only proceeding is instituted, when it takes steps realting
its nationals but also those of other. Act of to the mertis of the case before invoking immunity,
intervention should be judged with high degree of when by treaty or contract it has previously given
accuracy, not all intervention can be justified as consent.
self-defense.
• An act of self-defense is justified if the action IMMUNITY
taken is in existence of: immediate and extensive 1. Foreign States (State Immunity)
threat to fundamental human right or Head of states who is personification of the state
widespread loss of human life; force used is 2. Diplomatic Agent ( iploamtic Immunity)
proportionate the harm done and does not Diplomatic immunity restricted only to official
result in greater destruction of values than the acts of the state and cannot be invoked for
human right at stake; the effect should be lesson private or propriety acts.
authority structure; and any action taken must
be immediately reported to the Security Council Domestic Consequence – matters that are within
and appropriate regional organization. the exclusive competency, a State cannot be
interfered with by other States.

RIGHT OF EQUALITY - Sovereign equality- all the rights of a state,

regardless of their number, must be observed and
Sovereign Equality – all the rights of a state, respected by the international community in the
regardless of their number, must be observed and same manner that the rights of other states are
respected by the intl. community in the same manner observed and respected.
that the rights of other states are observed and - Basis of the right of equality:
respected. • Art. 2 of the UN Charter- the organization is
based on the principle of the sovereign equality
 Art. 2 UN CHARTER: The organization is of all its members.
based on the principle of the sovereign
• Montevideo Convention of 1993- States are
equality of all its members.
judicially equal, enjoy the same rights, and have
 Montevideo CONVENTION OF 1933: state
equal capacity in their exercise. The rights of
ARE JUDICIALLY EQUAL, ENJOY THE SAME
each one do not depend upon the power which it
RIGHTS AND HAVE EQUAL CAPACITY IN
possesses to assure its exercise, but upon the
THEIR XERCISE. The rights of each one do not
simple fact of its existence as a person under
depend upon the power which it possess to
international law.
assure its exercise, but upon the simple fact of
its existence as a person under intl. law • Declaration of rights and duties of states in the
 OAS charter, every American state has the international law commission: every state has
duty to respect the rights enjoyed by other the right to equality in law with every other
states in accordance with intl. law states.
 Declaration of rights and Duties of States - Act of State Doctrine: all state must respect one
(Intl. law Commission: “Every state has the another’s independence and no state can interfere
right to equality in law with every other in domestic affairs of another state. The courts of
states. one country will not sit in judgment on the acts of
 All state must respect one another’s the government of another country done within
independent and no state can interfere in the latter’s territory. It is considered as an act of
domestic affairs of another state state if these requisites occur: act is public in
 The courts of one country will not sit in nature; official in character; and sovereign in
judgment on the acts of govt. of another purpose.
country done within the laters territory - Legal effects of sovereign equality on
(Underhill vs. Hernandez) jurisdiction: the international consequence on
 It is considered as an act of state if theses doctrine of state immunity- state cannot be sued
requisites concur, the act is public in nature, or compelled to arbitrate or mediate without its
official in character sovereign in purpose. consent. What it covers? Foreign states immunity
 EXCEPTION: The Sabatino amendment: the (head of state who is personification of the state)
Cuban govt. confiscated all properties of Cannot be detained in a foreign state except when
American nationals in Cuba without paying arrested or detained in a foreign tribunal,
just compensation Diplomatic agent (restricted only to official acts of
 The US court pronounced that when the state and cannot be invoked for private or
international laws are blatantly violated, a proprietary acts)
state may disregard the Act f State Doctrine - Art 2 of the UN Charter: Domestic consequence-
and rule n the acts of another state. matters that are within exclusive competency, a
State cannot be interfered with by other States.
EQUALITY ON JURSIDCITION
 International Consequence UNCLOS/ITLOS
doctrine of state immunity – a state cannot be sued UNCLOS, as a law of the sea, came into operation and
or compelled to arbitrate or mediate without its became effective from 16th November 1982.
consent. However, the first time such a proposal was
announced before the United Nations was in the year
Immunity is only for purely govt. functions (jure 1973. Over the course of nine years, with
imperrii) and not for purely propriety acts (jure representations from over 160 countries coming
gestionis). The state is deemed to have waived its forward, UNCLOS came into existence.
BACKGROUND preservation of the marine environment; declared
inter alia that the area of the seabed and ocean floor
UNCLOS Background and the subsoil thereof, beyond the limits of national
Before the nautical law of UNCLOS came into jurisdiction, as well as its resources, are the common
force, there existed a school of thought known as heritage of mankind, the exploration and exploitation
freedom-of-the-seas. This doctrine had first come of which shall be carried out for the benefit of
into operation during the 17th century. mankind as a whole, irrespective of the geographical
As per this law, there were no limits or location of States (UN resolution 2749 (XXV) of 17
boundaries set to the aspect of marine business and December 1970)
commercial activities.
Over the years and centuries as technology DISSENT
developed and the needs of the people across the Even though UNCLOS has 160 member
world grew, there emerged a problem. Over- parties, the USA is a country that has still not
exploitation of the sea’s resources was immensely sanctioned (ratified) the nautical law. The main
felt towards the middle of the 20th century and many reason for the USA not sanctioning the law of the sea
nations started feeling the need to ensure the arises mainly because of its disagreement about Part
protection of their marine resources. XI, AREA, of UNCLOS.
This part deals with the aspect of the
In 1967, the Third United Nations Conference minerals found on the seabed on the EEZ. The
on the Law of the Sea, UNCLOS III, was convened. In International Seabed Authority was established on
this conference, the UN ambassador from Malta Mr the basis of this part of the nautical law and called for
Arvid Pardo requested a legal power that could bring equitable distribution of the proceeds of such
about international governance over the oceanic seabeds.
floor and bed.
Such a legal power would also ensure that The US is opposed to this theory and that is
there would not be any problems arising between why it has not ratified UNCLOS in spite of it being one
various countries over the oceanic floor and bed of the most important members of the United
space. Nations.
In a major way, it was this UNCLOS III that
paved the way for the now existing nautical law. UNITED NATIONS CONVENTION ON THE LAW OF
THE SEAS
FEATURES AND HIGHLIGHTS Article 300
The features and highlights of the same can be Good faith and abuse of rights
explained as follows: States Parties shall fulfil in good faith the obligations
- UNCLOS as the currently prevailing law of the assumed under this Convention and shall exercise the
sea is binding completely. rights, jurisdiction and freedoms recognized in this
- Even as the name of the nautical law suggests Convention in a manner which would not constitute
a United Nations’ involvement, the UN does an abuse of right.
not have any major functional role in the
working of UNCLOS Article 305
- There are 17 parts, 320 articles and nine Signature
annexes to UNCLOS Par 1. This Convention shall be open for signature by:
- The law of the sea provides for full money (a) all States;
rights to nations for a 200-mile zone by their
shoreline. The sea and oceanic bed extending
this area is regarded to be an Exclusive Article 306
Economic Zone (EEZ) and any country can Ratification and formal confirmation
use these waters for its economic utilisation - This Convention is subject to ratification by
- The IMO (International Maritime States and the other entitie
Organisation) plays a vital role in the - The instruments of ratification and of formal
operation of UNCLOS. Along with the IMO, confirmation shall be deposited with the
organisations like the International Whaling Secretary-General of the United Nations.
Commission and the International Seabed
Authority are vital parties in the functional Article 307
areas of the nautical law Accession
APPLICATION - This Convention shall remain open for
With the help of a nautical law like UNCLOS, it accession by States and the other entities
can be said that marine resources can be protected - The instruments of ratification and of formal
and safeguarded, especially in contemporary times confirmation shall be deposited with the
where the need for marine resources’ protection has Secretary-General of the United Nations.
increased even more than it was during the 1960s
and 70s. Article 309
Reservations and exceptions
PURPOSE OF UNCLOS: - No reservations or exceptions may be made
Recognizing the desirability of establishing to this Convention unless expressly permitted
through this Convention, with due regard for the by other articles of this Convention.
sovereignty of all States, a legal order for the seas and
oceans which will facilitate international Article 317
communication, and will promote the peaceful uses Denunciation
of the seas and oceans, the equitable and efficient Par 1. A State Party may, by written notification
utilization of their resources, the conservation of addressed to the Secretary-General of the United
their living resources, and the study, protection and Nations, denounce this Convention and may indicate
its reasons. Failure to indicate reasons shall not affect right of innocent passage as provided in this
the validity of the denunciation. The denunciation Convention shall exist in those waters.
shall take effect one year after the date of receipt of
the notification, unless the notification specifies a Article 15 delimitation of the territorial sea
later date. between States with opposite or adjacent coasts
Where the coasts of two States are opposite or
Par 2. A State shall not be discharged by reason of the adjacent to each other, neither of the two States is
denunciation from the financial and contractual entitled, failing agreement between them to the
obligations which accrued while it was a Party to this contrary, to extend its territorial sea beyond the
Convention, nor shall the denunciation affect any median line every point of which is equidistant from
right, obligation or legal situation of that State the nearest points on the baselines from which the
created through the execution of this Convention breadth of the territorial seas of each of the two
prior to its termination for that State. States is measured. The above provision does not
Par 3. The denunciation shall not in any way affect apply, however, where it is necessary by reason of
the duty of any State Party to fulfil any obligation historic title or other special circumstances to delimit
embodied in this Convention to which it would be the territorial seas of the two States in a way which is
subject under international law independently of this at variance therewith.
Convention.
Article 17 Right of innocent passage
Article 2 Subject to this Convention, ships of all States,
Legal status of the territorial sea, of the air space whether coastal or land-locked, enjoy the right of
over the territorial sea and of its bed and subsoil innocent passage through the territorial sea.
1. The sovereignty of a coastal State extends, beyond
its land territory and internal waters and, in the case Article 18
of an archipelagic State, its archipelagic waters, to an Meaning of passage
adjacent belt of sea, described as the territorial sea. Par 1. Passage means navigation through the
territorial sea for the purpose of:
2. This sovereignty extends to the air space over the (a) traversing that sea without entering internal
territorial sea as well as to its bed and subsoil. waters or calling at a roadstead or port facility
outside internal waters; or (b) proceeding to or from
3. The sovereignty over the territorial sea is internal waters or a call at such roadstead or port
exercised subject to this Convention and to other facility.
rules of international law. Par 2. Passage shall be continuous and
expeditious. However, passage includes stopping
Article 3 Breadth of the territorial sea and anchoring, but only in so far as the same are
Every State has the right to establish the breadth of incidental to ordinary navigation or are rendered
its territorial sea up to a limit not exceeding 12 necessary by force majeure or distress or for the
nautical miles, measured from baselines determined purpose of rendering assistance to persons, ships or
in accordance with this Convention. aircraft in danger or distress.

Article 5 Normal baseline Article 19 Meaning of innocent passage

Except where otherwise provided in this Convention, Par 1. Passage is innocent so long as it is not
the normal baseline for measuring the breadth of the prejudicial to the peace, good order or security of the
territorial sea is the low-water line along the coast as coastal State. Such passage shall take place in
marked on large-scale charts officially recognized by conformity with this Convention and with other rules
the coastal State. of international law.

Article 7 Straight baselines Article 29 Definition of warships

Par 1. In localities where the coastline is deeply For the purposes of this Convention, "warship"
indented and cut into, or if there is a fringe of islands means a ship belonging to the armed forces of a State
along the coast in its immediate vicinity, the method bearing the external marks distinguishing such ships
of straight baselines joining appropriate points may of its nationality, under the command of an officer
be employed in drawing the baseline from which the duly commissioned by the government of the State
breadth of the territorial sea is measured. and whose name appears in the appropriate service
list or its equivalent, and manned by a crew which is
Par 3. The drawing of straight baselines must not under regular armed forces discipline.
depart to any appreciable extent from the general
direction of the coast, and the sea areas lying within Article 30 Non-compliance by warships with the
the lines must be sufficiently closely linked to the laws and regulations of the coastal State
land domain to be subject to the regime of internal If any warship does not comply with the laws and
waters. regulations of the coastal State concerning passage
through the territorial sea and disregards any
Article 8 Internal waters request for compliance therewith which is made to it,
Par 1. Except as provided in Part IV, waters on the the coastal State may require it to leave the territorial
landward side of the baseline of the territorial sea sea immediately.
form part of the internal waters of the State.
Article 33 Contiguous zone
Par 2. Where the establishment of a straight baseline Par 1. In a zone contiguous to its territorial sea,
in accordance with the method set forth in article 7 described as the contiguous zone, the coastal State
has the effect of enclosing as internal waters areas may exercise the control necessary to: (a) prevent
which had not previously been considered as such, a infringement of its customs, fiscal, immigration or
sanitary laws and regulations within its territory or
territorial sea; (b) punish infringement of the above governed by the relevant provisions of this
laws and regulations committed within its territory Convention.
or territorial sea.
Article 56 Rights, jurisdiction and duties of the
Par 2. The contiguous zone may not extend beyond coastal State in the exclusive economic zone
24 nautical miles from the baselines from which the Par 1. In the exclusive economic zone, the coastal
breadth of the territorial sea is measured. State has:
(a) sovereign rights for the purpose of exploring and
Article 38 Right of transit passage exploiting, conserving and managing the natural
Par 2. Transit passage means the exercise in resources, whether living or non-living, of the waters
accordance with this Part of the freedom of superjacent to the seabed and of the seabed and its
navigation and overflight solely for the purpose of subsoil, and with regard to other activities for the
continuous and expeditious transit of the strait economic exploitation and exploration of the zone,
between one part of the high seas or an exclusive such as the production of energy from the water,
economic zone and another part of the high seas or currents and winds;
an exclusive economic zone. However, the (b) jurisdiction as provided for in the relevant
requirement of continuous and expeditious transit provisions of this Convention with regard to:
does not preclude passage through the strait for the (i) the establishment and use of artificial islands,
purpose of entering, leaving or returning from a State installations and structures;
bordering the strait, subject to the conditions of entry (ii) marine scientific research;
to that State. (iii) the protection and preservation of the marine
environment;
Article 46 Use of Archipelagic State (c) other rights and duties provided for in this
- For the purposes of this Convention: Convention.
- (a) "archipelagic State" means a State
constituted wholly by one or more Article 57 Breadth of the exclusive economic zone
archipelagos and may include other islands; The exclusive economic zone shall not extend beyond
- (b) "archipelago" means a group of islands, 200 nautical miles from the baselines from which the
including parts of islands, interconnecting breadth of the territorial sea is measured.
waters and other natural features which are
so closely interrelated that such islands, Article 59 Basis for the resolution of conflicts
waters and other natural features form an regarding the attribution of rights and
intrinsic geographical, economic and political jurisdiction in the exclusive economic zone
entity, or which historically have been In cases where this Convention does not attribute
regarded as such. rights or jurisdiction to the coastal State or to other
States within the exclusive economic zone, and a
Article 47 Archipelagic baselines conflict arises between the interests of the coastal
Par 1. An archipelagic State may draw straight State and any other State or States, the conflict
archipelagic baselines joining the outermost points of should be resolved on the basis of equity and in the
the outermost islands and drying reefs of the light of all the relevant circumstances, taking into
archipelago provided that within such baselines are account the respective importance of the interests
included the main islands and an area in which the involved to the parties as well as to the international
ratio of the area of the water to the area of the land. community as a whole.
Par 2. The length of such baselines shall not exceed
100 nautical miles, except that up to 3 per cent of the Article 73 Enforcement of laws and regulations of
total number of baselines enclosing any archipelago the coastal State
may exceed that length, up to a maximum length of Par 1. The coastal State may, in the exercise of its
125 nautical miles. sovereign rights to explore, exploit, conserve and
manage the living resources in the exclusive
Par 3. The drawing of such baselines shall not depart economic zone, take such measures, including
to any appreciable extent from the general boarding, inspection, arrest and judicial proceedings,
configuration of the archipelago. as may be necessary to ensure compliance with the
laws and regulations adopted by it in conformity with
Article 53 Right of archipelagic sea lanes passage this Convention.
Par 1. An archipelagic State may designate sea lanes
and air routes thereabove, suitable for the Par 2. Arrested vessels and their crews shall be
continuous and expeditious passage of foreign ships promptly released upon the posting of reasonable
and aircraft through or over its archipelagic waters bond or other security.
and the adjacent territorial sea.
Par 3. Coastal State penalties for violations of
Par 2. All ships and aircraft enjoy the right of fisheries laws and regulations in the exclusive
archipelagic sea lanes passage in such sea lanes and economic zone may not include imprisonment, in the
air routes. absence of agreements to the contrary by the States
concerned, or any other form of corporal
Article 55 Specific legal regime of the exclusive punishment.
economic zone
- The exclusive economic zone is an area Par 4. In cases of arrest or detention of foreign
beyond and adjacent to the territorial sea, vessels the coastal State shall promptly notify the flag
subject to the specific legal regime State, through appropriate channels, of the action
established in this Part, under which the taken and of any penalties subsequently imposed.
rights and jurisdiction of the coastal State and
the rights and freedoms of other States are
Article 74 Delimitation of the exclusive economic
zone between States with opposite or adjacent
coasts
Par 1. The delimitation of the exclusive economic
zone between States with opposite or adjacent coasts
shall be effected by agreement on the basis of
international law, as referred to in Article 38 of the
Statute of the International Court of Justice, in order
to achieve an equitable solution.

Article 76 Definition of the continental shelf

Par 1. The continental shelf of a coastal State
comprises the seabed and subsoil of the submarine
areas that extend beyond its territorial sea Article58
throughout the natural prolongation of its land Rights and duties of other States in the exclusive
territory to the outer edge of the continental margin, economic zone
or to a distance of 200 nautical miles from the 1. In the exclusive economic zone, all States, whether
baselines from which the breadth of the territorial coastal or land-locked, enjoy, subject to the relevant
sea is measured where the outer edge of the provisions of this Convention, the freedoms referred
continental margin does not extend up to that to in article 87 of navigation and overflight and of the
distance. laying of submarine cables and pipelines, and other
internationally lawful uses of the sea related to these
Article 77 Rights of the coastal State over the freedoms, such as those associated with the
continental shelf operation of ships, aircraft and submarine cables and
Par 1. The coastal State exercises over the continental pipelines, and compatible with the other provisions
shelf sovereign rights for the purpose of exploring it of this Convention.
and exploiting its natural resources. 2. Articles 88 to 115 and other pertinent rules of
international law apply to the exclusive economic
Par 2. The rights referred to in paragraph 1 are zone in so far as they are not incompatible with this
exclusive in the sense that if the coastal State does Part.
not explore the continental shelf or exploit its natural 3. In exercising their rights and performing their
resources, no one may undertake these activities duties under this Convention in the exclusive
without the express consent of the coastal State. economic zone, States shall have due regard to the
rights and duties of the coastal State and shall comply
Par 3. The rights of the coastal State over the with the laws and regulations adopted by the coastal
continental shelf do not depend on occupation, State in accordance with the provisions of this
effective or notional, or on any express proclamation. Convention and other rules of international law in so
far as they are not incompatible with this Part.

Article60
Artificial islands, installations and structures
in the exclusive economic zone
1. In the exclusive economic zone, the coastal State
shall have the exclusive right to construct and to
authorize and regulate the construction, operation
and use of:
(a) artificial islands;
(b) installations and structures for the purposes
provided for in article 56 and other economic
purposes;
(c) installations and structures which may interfere
with the exercise of the rights of the coastal State in
the zone.
2. The coastal State shall have exclusive jurisdiction
over such artificial islands, installations and
structures, including jurisdiction with regard to
customs, fiscal, health, safety and immigration laws
and regulations.

3. Due notice must be given of the construction of

such artificial islands, installations or structures, and
permanent means for giving warning of their
presence must be maintained. Any installations or
structures which are abandoned or disused shall be
removed to ensure safety of navigation, taking into
account any generally accepted international
standards established in this regard by the
competent international organization. Such removal
shall also have due regard to fishing, the protection of
the marine environment and the rights and duties of
other States. Appropriate publicity shall be given to
the depth, position and dimensions of any Article 13 Quorum
installations or structures not entirely removed. Par 1. All available members of the Tribunal shall sit;
a quorum of 11 elected members shall be required to
4. The coastal State may, where necessary, establish constitute the Tribunal.
reasonable safety zones around such artificial islands,
installations and structures in which it may take Article 21 Jurisdiction
appropriate measures to ensure the safety both of The jurisdiction of the Tribunal comprises all
navigation and of the artificial islands, installations disputes and all applications submitted to it in
and structures. accordance with this Convention and all matters
specifically provided for in any other agreement
5. The breadth of the safety zones shall be which confers jurisdiction on the Tribunal.
determined by the coastal State, taking into account
applicable international standards. Such zones shall Article 23 Applicable law
be designed to ensure that they are reasonably The Tribunal shall decide all disputes and
related to the nature and function of the artificial applications in accordance with article 293.
islands, installations or structures, and shall not
exceed a distance of 500 metres around them, Article 293 Applicable law
measured from each point of their outer edge, except Par 1. A court or tribunal having jurisdiction under
as authorized by generally accepted international this section shall apply this Convention and other
standards or as recommended by the competent rules of international law not incompatible with this
international organization. Due notice shall be given Convention.
of the extent of safety zones.
6. All ships must respect these safety zones and shall Par 2. Paragraph l does not prejudice the power of
comply with generally accepted international the court or tribunal having jurisdiction under this
standards regarding navigation in the vicinity of section to decide a case ex aequo et bono ( power of
artificial islands, installations, structures and safety arbitrators to dispense with consideration of the law
zones. but consider solely what they consider to be fair and
7. Artificial islands, installations and structures and equitable in the case at hand.), if the parties so agree.
the safety zones around them may not be established
where interference may be caused to the use of Article 24 Institution of proceedings
recognized sea lanes essential to international Par 1. Disputes are submitted to the Tribunal, as the
navigation. case may be, either by notification of a special
8. Artificial islands, installations and structures do agreement or by written application, addressed to
not possess the status of islands. They have no the Registrar. In either case, the subject of the dispute
territorial sea of their own, and their presence does and the parties shall be indicated.
not affect the delimitation of the territorial sea, the
exclusive economic zone or the continental shelf. Par 2. The Registrar shall forthwith notify the special
agreement or the application to all concerned.

ITLOS Par 3. The Registrar shall also notify all States Parties.
ANNEX VI. STATUTE OF THE INTERNATIONAL
TRIBUNAL FOR THE LAW OF THE SEA Article 28 Default
Article 1 When one of the parties does not appear before the
General provisions Tribunal or fails to defend its case, the other party
Par 1. The International Tribunal for the Law of the may request the Tribunal to continue the
Sea is constituted and shall function in accordance proceedings and make its decision. Absence of a
with the provisions of this Convention and this party or failure of a party to defend its case shall
Statute. not constitute a bar to the proceedings. Before
making its decision, the Tribunal must satisfy itself
Par 2. The seat of the Tribunal shall be in the Free not only that it has jurisdiction over the dispute, but
and Hanseatic City of Hamburg in the Federal also that the claim is well founded in fact and law.
Republic of Germany.
Article 33 Finality and binding force of decisions
Par 3. The Tribunal may sit and exercise its functions Par 1. The decision of the Tribunal is final and shall
elsewhere whenever it considers this desirable. be complied with by all the parties to the dispute.

Article 10 Privileges and immunities Par 2. The decision shall have no binding force except
The members of the Tribunal, when engaged on the between the parties in respect of that particular
business of the Tribunal, shall enjoy diplomatic dispute.
privileges and immunities.
Par 3. In the event of dispute as to the meaning or
Article 2 Composition scope of the decision, the Tribunal shall construe it
Par 1. The Tribunal shall be composed of a body of 21 upon the request of any party.
independent members, elected from among persons
enjoying the highest reputation for fairness and Article 34 Costs
integrity and of recognized competence in the field of Unless otherwise decided by the Tribunal, each party
the law of the sea. shall bear its own costs

Par 2. In the Tribunal as a whole the representation

of the principal legal systems of the world and State Recognition – formal acknowledgement or
equitable geographical distribution shall be assured. acceptance of a new state as an intl. personality by
the existing states of the intl. community.
 Article 6
Article 1 of the Montevideo Conference 1933 The recognition of a state merely signifies that
a. Permanent population the state which recognizes it accepts the
b. Defined territory personality of the other with all the rights and
c. Government duties determined by international law.
d. Capacity to enter into relations with other Recognition is unconditional and irrevocable.
states
CONSTIUTIVE DECLARATORY IMPORTANCE OF STATE RECOGNITION
THEORY THEORY When a state acquires recognition, it gains
Maintains that is the Maintains that certain right, obligations and immunities such
act of recognition by recognition is merely as:
other states that an acceptance by the  It acquires the capacity to enter
relates a new state states of an already into diplomatic relations with
and endows it with existing situation. A other states
legal personality and new state will  It acquires the capacity to enter
not the process by accurate capacity in into treaties with other states
which it actually intl. law not by virtue  The sates is able to enjoy the
obtained of the consent of rights and privileges of
independence others but by virtue of international statehood
a particular factual  The state can undergo state
states that recognition situation. It will be succession
of an entity as a state legally constituted by  With the recognition of state
is not automatic. A its own efforts and comes the right to sue and to be
state is only a state circumstances and sued
when it is recognized will not have to await  The state can become a
as such and other the procedure of member of the United nations
states have a recognition by other organization
considerable states.
discretion to
recognize or not. Q: Is there an implied recognition? Expressed and
Moreover, only upon in writing.
recognition by those Article 7 The recognition of a state may be express
other states does the or tacit. The latter results from any act which implies
new state exist, at the intention of recognizing the new state.
least in a legal sense.
Q: Why do you think recognition is important?
Because when a state acquires recognition, it gains
certain rights, obligations and immunities example
DISADVANTAGE: capacity to enter in diplomatic relations with other
-an unrecognized states and state not recognize losses it rights to enjoy
state “may not be the statehood in another county
subject to the Q: Why do states recognize other states?
obligations imposed So that recognize state can enter into treaty will have
by intl. law and may legal personality to enter with contract and deal with
accordingly be free international states. They have privileges, duties,
from such restraints rights, immunities and obligation once recognized.
as for instance the MONTEVINIEDO CONVENTION:
prohibition on Article 2
aggression. The federal state shall constitute a sole person in the
In the constitutive theory, a state exists eyes of international law.
exclusively via recognition by other states. In
the declaratory theory of statehood, an entity Article 3
becomes a state as soon as it meets the The political existence of the state is independent of
minimal criteria for statehood. Therefore, recognition by the other states. Even before
recognition by other states is purely recognition the state has the right to defend its
“declaratory”. integrity and independence, to provide for its
FORMS OF STATE RECOGNITION conservation and prosperity, and consequently to
Recognition De Recognition De Jure organize itself as it sees fit, to legislate upon its
Facto interests, administer its services, and to define the
-Is granted when -is granted when the jurisdiction and competence of its courts. The
there is the fulfillment state fulfills all the exercise of these rights has no other limitation than
of the essential essential condition of the exercise of the rights of other states according to
conditions of states along with international law.
statehood sufficient control and
permanency Article 4
-Sates recognized States are juridically equal, enjoy the same rights, and
under this mode have -state recognized have equal capacity in their exercise. The rights of
only a few rights and under this mode have each one do not depend upon the power which it
obligations against the absolute right and possesses to assure its exercise, but upon the simple
other states obligations against fact of its existence as a person under international
other states. law.
Article 5 Article 15
The fundamental rights of states are not susceptible The present Convention shall remain in force
of being affected in any manner whatsoever. indefinitely but may be denounced by means of one
year's notice given to the Pan American Union, which
Article 6 shall transmit it to the other signatory governments.
The recognition of a state merely signifies that the After the expiration of this period the Convention
state which recognizes it accepts the personality of shall cease in its effects as regards the party which
the other with all the rights and duties determined by denounces but shall remain in effect for the
international law. Recognition is unconditional and remaining High Contracting Parties.
irrevocable.

Article 7 Spratly Islands

The recognition of a state may be express or tacit.  Named after the 19th Century British whaling
The latter results from any act which implies the captain Richard Spratly
intention of recognizing the new state.  They were coral islets mostly inhabited by
seabirds naturally consisting of 19 islands
Article 8  Northeast part is know as Dangerous Ground
No state has the right to intervene in the internal or and is characterized by many low islands,
external affairs of another. sunken reefs and degraded, sunken atolls
with coral often rising abruptly from ocean
Article 9 depths greater than 2,200ft making the area
The jurisdiction of states within the limits of national dangerous for navigation
territory applies to all the inhabitants. Nationals and  Are a group of more than 750 reefs, islets,
foreigners are under the same protection of the law atolls, cays and islands in the South China Sea
and the national authorities and the foreigners may between Vietnam, the Philippines, China,
not claim rights other or more extensive than those Malaysia and Brunei
of the nationals.  They comprise less than 4 s km of land area,
spread over more than 425,000 sg. Kl. Of sea
Article 10  The Spratlys are part of the three
The primary interest of states is the conservation of archipelagos of the South China Sea,
peace. Differences of any nature which arise between comprising more than 40,000 islands and
them should be settled by recognized pacific reefs and which has so complicated
methods. geography, governance and economics in that
region of Southeast Asia.
Article 11  Such small and remote islands have little
The contracting states definitely establish as the rule economic value in themselves, but are
of their conduct the precise obligation not to important in establishing intl. boundaries
recognize territorial acquisitions or special  There are no native islanders but there are
advantages which have been obtained by force rich fishing grounds and initial surveys
whether this consists in the employment of arms, in indicate the islands may contain significant
threatening diplomatic representations, or in any reserves of oil and natural gas
other effective coercive measure. The territory of a
state is inviolable and may not be the object of
military occupation nor of other measures of force
imposed by another state directly or indirectly or for
any motive whatever even temporarily.

Article 12
The present Convention shall not affect obligations
previously entered into by the High Contracting
Parties by virtue of international agreements.

Article 13
The present Convention shall be ratified by the High
Contracting Parties in conformity with their
respective constitutional procedures. The Minister of
Foreign Affairs of the Republic of Uruguay shall
transmit authentic certified copies to the
governments for the aforementioned purpose of
ratification. The instrument of ratification shall be
deposited in the archives of the Pan American Union
in Washington, which shall notify the signatory
governments of said deposit. Such notification shall
be considered as an exchange of ratifications.

Article 14
The present Convention will enter into force between
the High Contracting Parties in the order in which
they deposit their respective ratifications.
  Fishing grounds in Spratly Islands are
frequently visited by Filipino Fishermen
 On May 23 2011, Benigno warned the visiting
Chinese defense Minister, of a possible arm
race in the region if tensions worsened over
dipsutes in South China Sea
 When we have these incidents does it not
promote an armed race happening within the
region? And when there is an arms race, does
not potential for conflict increase? He called
telling liang.
 The philis warned China that it might
increase its military capabilities

OTHER IMPORTANT:
nine-dash line—refers to the ill-
defined demarcation line used by the People's
Republic of China and the Republic of China
CHINA & VIETNAM CLAIM: (Taiwan), for their claims of the major part of the
 In 1904 Shanghai Publishing House printed South China Sea.
the map named map of all Chinese provinces,
revealing that China stretched as far south as Q: Does China have a legitimate claim to the South
HAINAN island and that the Paracel And China Sea?
Spratly Islands did not belong to China In 2016, the Hague Tribunal ruled that China's
 Vietnamese map from 1834 also includes the claims of historic rights in the South China Sea lacked
Spratly Island clumped in with the Paracels (a legal foundation, China's actions in the region
common occurrence on maps of that time) infringed on the rights of the Philippines, and
labeled as Van Ly Tyring Sa features in the Spratlys are not entitled to EEZs or
 Despite the fact that China and Vietnam both territorial zones.
made a claim to theses territories
simultaneously, at the time, neither side was Q:What is the controversy between the
aware that their neighbor had already Philippines and China?
charted and made claims to the same stretch The presence of Chinese vessels at a disputed reef off
of islands. the Philippines could ignite “unwanted hostilities”, a
Military conflict and diplomatic dialogues top aide to President Rodrigo Duterte has warned,
 In 1933 France asserted its claims from 1887 intensifying a diplomatic spat over the ships that
to the Spratly and Parcel Islands on behalf of Manila described as “maritime militia”.
its then colon Vietnam. It occupied a number
of Spratly Islands, including Taping island, Q:Is the nine-dash line of China valid?
built weather stations n 2 islands and However, there still exists great ambiguity over
administered them as part of French what China's nine-dash line implies. According to
Indochina. Wang, “The dash lines mean the ocean, islands and
reefs all belong to China and that China has sovereign
rights. But it's discontinuous, meaning that other
countries can pass through the lines freely.”

Q:Who owns Scarborough Shoal?

China
Scarborough Shoal is a rock in the South China Sea,
approximately 120 nautical miles west of
the Philippine island of Luzon. There are no
structures built on Scarborough Shoal, but the
feature is effectively controlled by China, which has
maintained a constant coast guard presence at the
feature since 2012.

Q: Who is the real owner of Spratly Island?

Only China (PRC), Taiwan (ROC), and Vietnam have
PHILIPPINES CLAIM: made claims based on historical sovereignty of the
 Claims the Northeastern section of the Spratly islands. The Philippines, however, claims part of the
Island as the Kalaaan Island Group, in area as its territory under UNCLOS, an agreement
addition to the Scarborough Shoal, which it parts of which have been ratified by the countries
calls the Baj de Masinloc. involved in the Spratly islands dispute.
 Malaysia claims part of Kalayan Island, while
China & Taiwan claim the entirety of the Q: Why does China think it owns the South China
island group. China and Taiwan also claim the Sea?
Scarborough Shoal, which is currently China's claim to the sea is based both on the Law of
patrolled by Chinese maritime law the Sea Convention and its so-called “nine-dash” line.
enforcement vessels. In addition, the body of In its ruling, the tribunal considered the South China
water enclosed within the nine-dash line Sea to be a “semi-enclosed sea” as defined by the Law
promulgated by China an Taiwan overlaps of the Sea Convention — a body of water tightly or
with Philippines EEZ and continental shelf. largely contained by land features
 claim China: 9- dash rule The dash lines mean the
Q:Why Philippines has the strongest claim of ocean, islands and reefs all belong to China and that
Spratly Islands? China has sovereign rights. But it's discontinuous,
According to reports, Philippines has the strongest meaning that other countries can pass through the
claim of Spratly since it is geographically part of lines freely.”, historic rights or sovereignty of the
the Philippine archipelago and it's just 100 islands
kilometers away from Palawan Island. It means that China's claim to the sea is based both on the Law of
it is much closer to the Philippines than any other the Sea Convention and its so-called “nine-dash” line.
countries In its ruling, the tribunal considered the South China
Sea to be a “semi-enclosed sea” as defined by the Law
Q:When did China claim Scarborough Shoal? of the Sea Convention — a body of water tightly or
1935 largely contained by land features
China claims that in 1935, China's Map Verification
Committee declared sovereignty over 132 islands, Philippines claims part of the area as its territory
reef and shoals in the South China Sea, under UNCLOS, an agreement parts of which have
when Scarborough Shoal was listed as a part of been ratified by the countries involved in the Spratly
what China today calls Zhongsha Islands. islands dispute.
Scarborough Shoal is located in the South China Sea, Philippines has the strongest claim of Spratly since
120 nautical miles off the Philippines' island of Luzon it is geographically part of the Philippine archipelago
and it's just 100 kilometers away from Palawan
Q: Why does China want Scarborough Shoal? Island. It means that it is much closer to the
Carpio explained that Scarborough Shoal is a Philippines than any other countries
strategic location for China as it guards the exit to the
Pacific, which would allow them to fire missiles decision: Hague Tribunal ruled that China's claims of
directed to the US in the [Link], meanwhile, historic rights in the South China Sea lacked legal
noted that China would have to go to the mid-Pacific foundation, China's actions in the region infringed on
in able to launch missiles that would reach the US. the rights of the Philippines, and features in the
Spratlys are not entitled to EEZs or territorial zones.
Q: Why does China own Scarborough Shoal?
China reaffirmed its claim of sovereignty over the Final Arbitral Award July 12, 2016
Zhongsha Islands in its 1992 Law on the territorial Philippines V. China The South China Sea West
Sea and the Contiguous Zone. China claims all the Philippine Sea Dispute
islands, reefs, and shoals within a U-shaped line in Personal opinion Carpio:
the South China Sea drawn in 1947 as its
territory. Scarborough shoal lies within this area. Six Major issues resolved by Tribunal:

Q:Is Spratly Island and Scarborough Shoal the  China’s Claim to Historic rights under the Nin-
same? dashed lines
The Philippines claims the northeastern section of  Status of geographic features in Spratlys to
the Spratly Islands as the Kalayaan Island Group, in Generated 20 NM EEZ
addition to the Scarborough Shoal, which it calls the  Status of Geologic Features in Spratlys
Bajo de Masinloc. Malaysia claims part of the whether low tide or high-tide elevations
Kalayaan Island, while China and Taiwan claim the  Status of Scarborough Shoal and right to
entirety of the island group. Traditional fishing
 Harm to Marine Environment
Q:Why is Scarborough Shoal important?  Unlawful Actions of Chin
The shoal had also been home to one of the
Philippines' richest fishing areas in the South China =============================
Sea, with Filipino fishermen frequenting the lagoon. Q: how issue started in Scarborough shoal? The
Scarborough Shoal is a barometer of U.S. willingness Philippines lost Scarborough Shoal to China after a
to come to the aid of the Philippines and push back controversial standoff in 2012. China blocked Filipino
against unilateral Chinese territorial expansion fishermen from Scarborough, also known as Panatag
Shoal, which lies 120 nautical miles from Zambales.
Q:Is Scarborough Shoal part of Philippine EEZ? This prompted Manila to file a case for international
Scarborough Shoal and high-tide features in the arbitration, which it largely won
Spratlys generate territorial seas but not EEZs or
continental shelves. Second Thomas Shoal and the Scarborough Shoal is a rock in the South China Sea,
waters around it are part of the EEZ and continental approximately 120 nautical miles west of the
shelf of the Philippines. Philippine island of Luzon.

Q: What is the issue about Scarborough Shoal? China claims that in 1935, China's Map Verification
The bullying Committee declared sovereignty over 132 islands,
reef and shoals in the South China Sea, when
The Philippines lost Scarborough Shoal to China after Scarborough Shoal was listed as a part of what China
a controversial standoff in 2012. China blocked today calls Zhongsha Islands. Scarborough Shoal is
Filipino fishermen from Scarborough, also known located in the South China Sea, 120 nautical miles off
as Panatag Shoal, which lies 120 nautical miles from the Philippines' island of Luzon.
Zambales. This prompted Manila to file a case for China reaffirmed its claim of sovereignty over the
international arbitration, which it largely won Zhongsha Islands in its 1992 Law on the territorial
Sea and the Contiguous Zone. China claims all the
IN SUMMARY: islands, reefs, and shoals within a U-shaped line in
SPRATLY:
the South China Sea drawn in 1947 as its territory.
Scarborough shoal lies within this area. CHINA CLAIM under the 9 dashed lines:
Has been building artificial islands,
Phil. Claim: The shoal had also been home to one of Legal claim: 20th century 9 dash map,
the Philippines' richest fishing areas in the South
China Sea, with Filipino fishermen frequenting the Philippine contention:
lagoon. Scarborough Shoal and high-tide features in  The 9-dashed lines are illegal under UNCLOS
the Spratlys generate territorial seas but not EEZs or and cannot be the basis for claiming maritime
continental shelves. Second Thomas Shoal and the zones
waters around it are part of the EEZ and continental  All historic rights in the EEz were
shelf of the Philippines. extinguished upon effectivity of UNCLOS
 No evidence that China historically exercised
Status of Scarborough Shoal; right to traditional exclusive control over the waters and
fishing: resources of the South China Sea
Scarborough shoal is a high-tide elevation entitled to  The tribunal upheld the Philippine position
12 NM territorial sea but not to a 200 NM EEZ since on this issue
obviously it is not capable of human habitation.
STATUS OF GEOLOGIC FEATURES IN SPRATLYS TO
The territorial sea of SS is a tradition fishing ground EGNERAL 200 NM EEZ
of Filipino and Chinses fishermen as well as from
other countries, China cannot prevent Filipino
fisherman from fishing in Scarborough Shoal

The tribunal upheld Philippine position on this issue.

TIMELINE AS TO WHY THE PHILIPPINES HAS A

STRONG CLAIM ON SPRATLY ISLANDS

1970-1971: Philippine Soldiers occupied 5 features

in Spratly islands group and attempted to force
Taiwan units from Itu Aba Island

July 1971: Pres. Ferdinand Marcos recognized a

freedom land govt. under head of state Tomas Cloma

April 1972: The Kalayaan Islands officially became

part of the province of Palawan

January 1973: The new Philippines constitution

entered force: this new foundational law contains a Philippines: Use United nation of the Law of the sea,
revise definition of the Philippines national territory brought arbitration at the Hague, but China refuse to
that includes all territory over which the govt. then cooperate and cited that the court has no jurisdiction.
exercised jurisdiction
US: conducts freedom of navigation operations and
December 1974: Tomas Cloma surrendered all ignoring warnings by China and travel close to
claims to Freedom land to the state China’s man made islands
June 1978: Presidential Decree 1596 proclaimed a
polygonal boundary limit for the Kalayan Islands. On Mckennan Reef is the only high tide feature
the same day June 11, a second presidential decree controlled by China within the Philippine EEZ in the
claiming 200 nautical mil EEXZ was also Spratlys. As a high tide feature, Mckenna reef is
promulgated. entitled to 12 NM territorial sea.

Disputed Area after Ruling of Tribunal –

Tribunal ruled that Mckennan Reef is above water at
high tide. Mckenna reef and Johnson South Reef are
the only Chinese occupied high tide features within
the Philippine EEZ in Spratlys. SS, Mckenna Reef and
JS reef are thus only disputed land features occupied
by China with entire Philippine EEZ. The tribunal
ruled that tere land features generate only a 12 NM
territorial sea with no EEZ.

The Philippine reef in South China Sea Larger

than it total land area
- Philippine EEX in the SCS has an area of 381k
[Link].. Deducting the 4,650 sq. kl. Total seas of
Johnson South Reef. The Phil has an EEZ of
376 sq. kl. In the SCS free from any chinse
claim
- This maritime area is larger than the total
land area of the Philippines of 200k sg. Kl. All
the living and non-living resources In this
maritime area – being exclusively to the
Philippines.

judges at Hague-based Permanent Court of

Arbitration issued a highly anticipated and
unanimous award in Republic of Philippines v.
People’s Republic of China, a case filed in 2013 by
Manila concerning maritime entitlements and the
status of features in the South China Sea, among
other issues.
The Tribunal’s award is highly favorable to the
Philippines, ruling that China’s nine-dash line claim
and accompanying claims to historic rights have no
validity under international law; that no feature in
the Spratly Islands, including Taiwan-occupied Itu
Aba (or Taiping Island), is an island under the United
Nations Convention on the Law of the Sea (UNCLOS);
and that the behavior of Chinese ships physically
obstructing Philippine vessels is unlawful.
Perhaps the most significant finding–and the one
most likely to disturb China–is the Tribunal’s award
that China’s nine-dash line and claim to historic
rights in the South China Sea are both invalid under
international law.
Notably: In one area, the Tribunal found that it lacked
the Tribunal concluded that, to the extent China had jurisdiction. Specifically, it ruled that because a
historic rights to resources in the waters of the South stand-off between China and the Philippines involved
China Sea, such rights were extinguished to the “military activities” it was excluded from
extent they were incompatible with the exclusive compulsory settlement under UNCLOS.
economic zones provided for in the Convention. China’s Foreign Ministry, keeping to its position
Part of the Tribunal’s reasoning on historic rights announced before the award, said that the Tribunal’s
considered historical evidence, concluding that while award “is null and void and has no binding force.”
China may have made use of the islands in the South “China neither accepts nor recognizes it,” it added, in
China Sea, there was no strong evidence that China a statement posted to Xinhua’s website.
“had historically exercised exclusive control over the
waters or their resources.” This latter point is a CHINA PHILIPPINES
particularly strong rebuttal to China’s position and its China refused to Philippines contended
rhetoric on the South China Sea. participate in the that the "nine-dotted
arbitration, stating line" claim by China is
The Tribunal’s decision also rules that Chinese that several treaties invalid because it
reclamation activities in the Spratly Islands, where with the Philippines violates the UNCLOS
the country has built seven artificial islands, are stipulate that bilateral agreements
illegal under UNCLOS. Clarifying its reasoning for negotiations be used about exclusive
ruling Itu Aba–the largest South China Sea feature to resolve border economic
and one with a substantial Taiwanese presence–an disputes. It also zones and territorial
island, the Tribunal said that under Article 121.3 of accuses the seas. It says that
UNCLOS, the clause defining what constitutes an Philippines of because most of the
island, a “stable community of people” is a necessary violating the features in the South
requirement. voluntary Declaration China Sea, such as
Taiwan claim its case to the Tribunal for why Itu on the Conduct of most of the Spratly
Aba should have been considered an island, claiming Parties in the South Islands, cannot
that the feature had the self-sufficient means China Sea, made in sustain life, they
necessary to sustain human life, including fresh 2002 cannot be given their
water. between ASEAN and own continental
China, which also shelf as defined in the
Regarding the status of features in the Spratly stipulated bilateral convention
Islands–a key feature of the Philippines’ case against negotiations as the
China–the Tribunal ruled that “Scarborough Shoal, means of resolving
Johnson Reef, Cuarteron Reef, and Fiery Cross Reef border and other
are high-tide features and that Subi Reef, Hughes disputes.
Reef, Mischief Reef, and Second Thomas Shoal were
submerged at high tide in their natural condition.” TAIWAN VIETNAM
These designations comport with the Philippines’
original positions in its filing to the Tribunal, The arbitral tribunal On 11 December
demonstrating that the country’s legal reasoning for has not invited 2014, Vietnam filed a
why these features should be considered either high- Taiwan to join the statement to the
tide features or low-tide elevations was accurate. arbitration, and no tribunal which put
opinion of Taiwan has forward three points:
The Tribunal disagreed with the Philippines on the been sought. The 1) Vietnam supports
status of just two features: Gaven Reef (North) and Philippines claimed the filing of this case
McKennan Reef, concluding that both are high tide that Taiping Island is by the Philippines,
features. Under UNCLOS, high tide features or a rock. Iresponse, 2) it rejects China's
“rocks” are entitled to a 12 nautical mile territorial [39]
 Ma Ying- "nine-dashed line",
sea. Nevertheless, the Tribunal ruled certain Chinese jeou, President of the and
activities in the Spratlys illegal, based on its finding Republic of 3) it asks the PCA
that Mischief Reef, Second Thomas Shoal, and Reed China (Taiwan), tribunal to take note
Bank “form part of the exclusive economic zone and rejected the of Vietnam's claims on
continental shelf of the Philippines.” While the Philippines' claim as certain islands such as
Tribunal stated its opinion that these features "patently the Paracels.
comprised the Philippines’ lawful continental shelf false".Taiwan invited
under UNCLOS, it did not consider the sovereignty of the Philippines and
individual features in the South China Sea. Questions five arbitrators to visit
of territorial sovereignty are outside of the scope Taiping Island; the
of the UNCLOS, the international treaty forming the Philippines rejected
basis for adjudication in this case. the invitation, and
The Tribunal’s award also found that through its there was no response
“large-scale land reclamation activities in the Spratly from the PCA tribunal.
Islands,” China had “caused severe harm to the coral
reef environment and violated its obligation to DISCUSSION QUESTIONS:
preserve and protect fragile ecosystems and the Q: What is UNCLOS – nautical law subscribes by
habitat of depleted, threatened, or endangered family or league of nations to demarc its territory
species.” The Tribunal also found that the Chinese involve territorial water, seas, EEZ, contiguous zones
government is aware that Chinese fishermen in the Q: Why important?
South China Sea were purposefully exploiting Q: Things define by UNCLOS?
endangered species “on a substantial scale.” High seas – part of the sea that is not included in the
exclusive economic zone, in the territorial sea, or in
the internal waters of a coastal state or Hague-based Permanent Court of Arbitration issued a
archipelagic waters of an archipelagic [Link] highly anticipated and unanimous award in Republic
seas are reserved for peaceful navigation through of Philippines v. People’s Republic of China,.Tribunal’s
international waters award is highly favorable to the Philippines
Q: What are the rights exercise by states exercise
on zones? The EEZ , Continental shelf, territorial sea, Q: what would be the next step for the
internal waters. Philippines? Mutual defense treaty by Phil and US
Article60 deployed war vessels.
Artificial islands, installations and structures
in the exclusive economic zone Island of Palmas case (Netherlands Vs. USA, 2
1. In the exclusive economic zone, the coastal State RIAA 829, Permanent Court of Arbitration)
shall have the exclusive right to construct and to
authorize and regulate the construction, operation Jurisdiction of States
and use of: a. Territory
(a) artificial islands;
(b) installations and structures for the purposes Palmas (mingas) is an island of little economic value
provided for in article 56 and other economic or strategic location, its located 2.6km I in north-
purposes; south length and 1.0km in east-west width. It had a
(c) installations and structures which may interfere population of about 750 in 1932. He is land is located
with the exercise of the rights of the coastal State in approximately 100 mls. ESE of General Santos City,
the zone. Philippines and 400 mls. North of talaud Islands, the
2. The coastal State shall have exclusive jurisdiction next-northost part of Indonesia.
over such artificial islands, installations and Note = 1 natucical mile= 1,15078)
structures, including jurisdiction with regard to
customs, fiscal, health, safety and immigration laws Facts:
and regulations. When Spain ceded the Philippines to the US in 1898
through the Treaty of Paris, USA, believe that the
Island of Palmas, who happened to be just 100 mls of
General Santos City, was part of it. Only to learn on
Article58 Rights and duties of other States in the 1906 that the Netherlands also claimed sovereignty
exclusive economic zone over the islands.

Article 56 Rights, jurisdiction and duties of the USA CLAIMS: Right to Discovery
coastal State in the exclusive economic zone
Par 1. In the exclusive economic zone, the coastal USA claims that General Wood, Governor of Moro
State has: Province, Philippines, had already visited the island
(a) sovereign rights for the purpose of exploring and in about 1903 Wood made a report to the Military
exploiting, conserving and managing the natural Secretary, US Army on 26 Jan. 1906 and the cert. delv.
resources, whether living or non-living, of the waters On 21 jan. by first lt. Johnston to the native
superjacent to the seabed and of the seabed and its interrogated by the controller of the Sanhi and the
subsoil, and with regard to other activities for the Talauti island would show that 21 jan visit related to
economic exploitation and exploration of the zone, the island dispute.
such as the production of energy from the water,
currents and winds; They claim that the island of Palmas is included in
(b) jurisdiction as provided for in the relevant the archipelago knows as the Philippine Island IAS
provisions of this Convention with regard to: DELIMITED BY Art. 11 of the treaty of peace between
(i) the establishment and use of artificial islands, the US and Spain or the Treaty of Paris and ceded in
installations and structures; virtue of the said article of the US.
(ii) marine scientific research;
(iii) the protection and preservation of the marine USA CLAIMS: Principle of Contiguity
environment; USA claims that Palmas forms a geographical part of
(c) other rights and duties provided for in this the Philippine group and is closer to the Phil. than to
Convention. the Dutch Est indies . Hence, the principle of
Q: What is an archipelago? contiguity substantiated the claim that it belongs to
the power with sovereignty over the Philippines.
Q: What did the Philippines file before the ITLOS?
Against China? On 22 January 2013, Netherlands Claims
the Philippines instituted arbitral Netherlands, represented by the East India Company,
proceedings against China in a dispute concerning possessed and exercised rights of sovereignty from
their respective “maritime entitlements” and the 1677 or even prior to 1648. The Sovereignty arose
legality of Chinese activities in the South China Sea. out of conventions entered into with native princess
Q:What is territorial claim? claims to own land or of Sangi (the main island of the Talautse Isles) to
sea that is part of another country. stabilized the sovereignty of the Netherlands over the
Q: Why it seems after decision nothing is territories of the princes, including Palmas . That
happening? Because China did not recognize the state of affairs set up was claimed to be validated by
decision of the tribunal as valid and binding and due intl. treaties.
to military presence the UNCLOS cannot pursue the
decision as mandatory. COURT DECISION:
Q: Before filing case what exactly, happen? Netherland hold sovereignty over the Island of
Q: what transpired in the case? case filed in 2013 Palmas
by Manila concerning maritime entitlements and the The claims of USA hold no merit:
status of features in the South China Sea, judges at 1. Rights of Discovery
The Arbitrator noted that Spain could not legally
grant what it did not hold and the Treaty of Paris
Could not grant Palmas to the USA if Spain had no
actual title to it. Spain held an inchoate title. When
Spain discovered Palmas. However, for a sovereign to
maintain its initial title via discovery, said discoverer
had to actually exercise authority even by as simply
an act as planting a flag on the beach. Spain did not
exercise authority over the island after making an
initial claims after discovery and so the USA claim
was based on relatively week grounds.

note: inchoate title is defined as a legal right of

entitlement that is in progress and is neither, ripe,
vested nor protected.

refers to a state of activity or entitlement that is

characterized by partial completion of an intended
outcome or status

Inchoate can also refer to a legal right or entitlement

such as title to an item of property that is as yet only
partial and incomplete; unfinished and imperfect. Q: US presume hold ownership but Netherlands
already holds ownership, so who owns the
PRINCIPLE OF CONTIGUITY island?
There being no positive intl. law for the USA view of American provide 2 principle
terra firms in which the nearest continent or island of [Link] to discovery -
considered sixe gives title to the land in dispute. The [Link] of contiguity
arbitrator held that mere proximity was not an Netherlands contended: There must be an overact
adequate claim to land and noted that if the intl. or display of sovereignty example by posting flag or
community followed the proposed American continuous display of the functions of the state
approach that would lead to arbitrary results showing you practice jurisdiction over it since for
Netherlands they have been practicing sovereignty or
note: terra files is defined as nearest continent ownership on that island from 1700 to 1906 only
island of considerable size. America claim since for them they discover it.
Q: when can entity can exercise right of
US failed to show documentation proving Spanish discovery? It is wrong US discover that?
sovereignty on the island except the documentations Q: how is jurisdiction exercise or enforce? Discuss
that specifically mentioned the islands discovery. On above in
the part of the Netherlands, it showed that the Dutch How to resolve conflict
East India Company had negotiated treaties with the 1. Balancing test? Whether to assume
local princess of the Island since the 17th century and jurisdiction Timberlain vs. bank of America to
had exercised sovereignty, including a requirement if determine which state has better claim for
Protestantism and the denial of other nationals on jurisdiction
the island. 1. First determine if has actual or intended
effect
A title that is inchoate cannot prevail over a definite ISLAND OF THE PALMAS CASE
title found on the continuous and peaceful display of - Since USA holds sovereignty of the Philippines,
sovereignty. Peaceful and continuous display of they also claim they take hold of sovereignty of the
territorial sovereignty is as good as title. Discovery island.
alone, w/out subsequent act, cannot suffice to prove - Since Spain discovered the island, they claim to
sovereignty over the island. The territorial take hold of its sovereignty.
sovereignty of the defendant, Netherlands, was not - Netherland claims they already hold the
contested by anyone from 1700 to 1906 so the title of sovereignty of the island because of its history and
discovery was at best an inchoate title and does not conventions.
prevail over the Netherlands claims of sovereignty. - Treaty of Paris states that US cannot take hold of
its sovereignty.
- Equity of title or tile of progress shall take hold of
the island. Even if they discovered it, without any
overt act of claiming the island, cannot claim the
sovereignty.
- Court to US: yes it is 100 miles and it is near to you
does not necessarily mean you take hold of the
sovereignty
- A title that is inchoate cannot prevail over a
definite title found on the continuous and peaceful
display of sovereignty. The territorial sovereignty
of the defendant, Netherlands, was not contested
by anyone from 1700 to 1906 so title of discovery
was, at best, an inchoate title and does not prevail
over the Netherlands claims of sovereignty.
VIENNA CONVENTION ON DIPLOMATIC Article 3 FUNCTIONS OF DIPLOMAT
RELATIONS 1961 [Link] functions of a diplomatic mission consist,
Done at Vienna on 18 April 1961. Entered into force inter alia, in:
on 24 April 1964. (a) Representing the sending State in the receiving
State;
Vienna Convention on Diplomatic Relations (b) Protecting in the receiving State the interests of
Done at Vienna on 18 April 1961 the sending State and of its nationals, within the
The States Parties to the present Convention, limits permitted by international law;
Recalling that peoples of all nations from ancient (c) Negotiating with the Government of the receiving
times have recognized the status of diplomatic State;
agents, (d) Ascertaining by all lawful means conditions and
Having in mind the purposes and principles of the developments in the receiving State, and
Charter of the United Nations concerning the reporting thereon to the Government of the sending
sovereign equality of States, the maintenance of State;
international peace and security, and the promotion (e) Promoting friendly relations between the sending
of friendly relations among nations, State and the receiving State, and developing their
Believing that an international convention on economic, cultural and scientific relations.
diplomatic intercourse, privileges and immunities [Link] in the present Convention shall be
would contribute to the development of friendly construed as preventing the performance of consular
relations among nations, irrespective of their functions by a diplomatic mission.
differing constitutional and social systems,
Realizing that the purpose of such privileges and
immunities is not to benefit individuals but to Article 4
ensure the efficient performance of the functions of [Link] sending State must make certain that the
diplomatic missions as representing States, agreement of the receiving State has been given for
Affirming that the rules of customary international the person it proposes to accredit as head of the
law should continue to govern questions not mission to that State.
expressly regulated by the provisions of the present
Convention, [Link] receiving State is not obliged to give reasons to
Have agreed as follows: the sending State for a refusal of agreement.

Article 1 Article 5 NOTIFICATION

For the purpose of the present Convention, the [Link] sending State may, after it has given due
following expressions shall have the meanings notification to the receiving States concerned,
hereunder assigned to them: accredit a head of mission or assign any member of
(a) The “head of the mission” is the person charged the diplomatic staff, as the case may be, to more than
by the sending State with the duty of acting in that one State, unless there is express objection by any of
capacity; the receiving States.
(b) The “members of the mission” are the head of
the mission and the members of the staff of the 2. If the sending State accredits a head of mission to
mission; one or more other States it may establish a
(c) The “members of the staff of the mission” are diplomatic mission headed by a chargé d’affaires ad
the members of the diplomatic staff, of the interim in each State where the head of mission has
administrative and technical staff and of the service not his permanent seat.
staff of the mission;
(d) The “members of the diplomatic staff” are the 3.A head of mission or any member of the diplomatic
members of the staff of the mission having staff of the mission may act as
diplomatic rank; representative of the sending State to any
(e) A “diplomatic agent” is the head of the mission international organization.
or a member of the diplomatic staff of the
mission; Article 6
(f) The “members of the administrative and Two or more States may accredit the same person as
technical staff” are the members of the staff of the head of mission to another State, unless
mission employed in the administrative and technical objection is offered by the receiving State.
service of the mission;
(g) The “members of the service staff” are the Article 7
members of the staff of the mission in the domestic Subject to the provisions of articles 5, 8, 9 and 11, the
service of the mission; sending State may freely appoint the
(h) A “private servant” is a person who is in the members of the staff of the mission. In the case of
domestic service of a member of the mission and military, naval or air attachés, the receiving State may
who is not an employee of the sending State; require their names to be submitted beforehand, for
(i) The “premises of the mission” are the buildings its approval.
or parts of buildings and the land ancillary thereto,
irrespective of ownership, used for the purposes of Article 8 NATIONALITY
the mission including the residence of the [Link] of the diplomatic staff of the mission
head of the mission. should in principle be of the nationality of the
sending State.
Article 2
The establishment of diplomatic relations between [Link] of the diplomatic staff of the mission may
States, and of permanent diplomatic missions, takes not be appointed from among persons
place by mutual consent.
having the nationality of the receiving State, except Article 13
with the consent 2 of that State which may be [Link] head of the mission is considered as having
withdrawn at any time. taken up his functions in the receiving State
either when he has presented his credentials or when
[Link] receiving State may reserve the same right he has notified his arrival and a true copy of his
with regard to nationals of a third State who are credentials has been presented to the Ministry for
not also nationals of the sending State. Foreign Affairs of the receiving State, or such other
ministry as may be agreed, in accordance with the
Article 9 PERSONA NON GRATA practice prevailing in the receiving State which shall
[Link] receiving State may at any time and without be applied in a uniform manner.
having to explain its decision, notify the
sending State that the head of the mission or any [Link] order of presentation of credentials or of a true
member of the diplomatic staff of the mission is copy thereof will be determined by the date
persona non grata or that any other member of the and time of the arrival of the head of the mission.
staff of the mission is not acceptable. In any such
case, the sending State shall, as appropriate, either Article 14 HEADS OF MISISONL; EACH CLASSES
recall the person concerned or terminate his [Link] of mission are divided into three classes,
functions with the mission. A person may be declared namely:
non grata or not acceptable before arriving in the (a) That of ambassadors or nuncios accredited to
territory of the receiving State. Heads of State, and other heads of mission of
equivalent rank;
2. If the sending State refuses or fails within a (b) That of envoys, ministers and internuncios
reasonable period to carry out its obligations under accredited to Heads of State;
paragraph 1 of this article, the receiving State may (c) That of chargés d’affaires accredited to Ministers
refuse to recognize the person concerned as a for Foreign Affairs.
member of the mission.
[Link] as concerns precedence and etiquette, there
Article 10: NOTIFICATION shall be no differentiation between heads of
[Link] Ministry for Foreign Affairs of the receiving mission by reason of their class.
State, or such other ministry as may be
agreed, shall be notified of: Article 15
(a) The appointment of members of the mission, The class to which the heads of their missions are to
their arrival and their final departure or the be assigned shall be agreed between States.
termination of their functions with the mission;
(b) The arrival and final departure of a person Article 16
belonging to the family of a member of the mission [Link] of mission shall take precedence in their
and, where appropriate, the fact that a person respective classes in the order of the date and
becomes or ceases to be a member of the family of a time of taking up their functions in accordance with
member of the mission; article 13.
(c) The arrival and final departure of private servants
in the employ of persons referred to in [Link] in the credentials of a head of mission
subparagraph (a) of this paragraph and, where not involving any change of class shall not affect his
appropriate, the fact that they are leaving the employ precedence.
of such persons;
(d) The engagement and discharge of persons [Link] article is without prejudice to any practice
resident in the receiving State as members of the accepted by the receiving State regarding the
mission or private servants entitled to privileges and precedence of the representative of the Holy See.
immunities.
Article 17
[Link] possible, prior notification of arrival and The precedence of the members of the diplomatic
final departure shall also be given. staff of the mission shall be notified by the head
of the mission to the Ministry for Foreign Affairs or
Article 11 SIZE OF MISSION such other ministry as may be agreed.
1. In the absence of specific agreement as to the size
of the mission, the receiving State may Article 18
require that the size of a mission be kept within The procedure to be observed in each State for the
limits considered by it to be reasonable and normal, reception of heads of mission shall be uniform
having regard to circumstances and conditions in the in respect of each class.
receiving State and to the needs of the particular
mission. Article 19 HEAD OF MISSION NOT AVAILABLE
1. If the post of head of the mission is vacant, or if the
[Link] receiving State may equally, within similar head of the mission is unable to perform
bounds and on a non-discriminatory basis, his functions a chargé d’affaires ad interim shall act
refuse to accept officials of a particular category. provisionally as head of the mission. The name of the
chargé d’affaires ad interim shall be notified, either
Article 12 ESTABLISH OFFICES by the head of the mission or, in case he is unable to
The sending State may not, without the prior express do so, by the Ministry for Foreign Affairs of the
consent of the receiving State, establish sending State to the Ministry for Foreign Affairs of
offices forming part of the mission in localities other the receiving State or such other ministry as may be
than those in which the mission itself is agreed.
established.
2. In cases where no member of the diplomatic staff for reasons of national security, the receiving State
of the mission is present in the receiving shall ensure to all members of the mission freedom of
State, a member of the administrative and technical movement and travel in its territory.
staff may, with the consent of the receiving State, be
designated by the sending State to be in charge of the Article 27 FREEDOM OF COMMUNICATION
current administrative affairs of the mission.
[Link] receiving State shall permit and protect free
Article 20 communication on the part of the mission for
The mission and its head shall have the right to use all official purposes. In communicating with the
the flag and emblem of the sending State on Government and the other missions and consulates of
the premises of the mission, including the residence the sending State, wherever situated, the mission
of the head of the mission, and on his means of may employ all appropriate means, including
transport. diplomatic couriers and messages in code or cipher.
However, the mission may install and use a
Article 21 wireless transmitter only with the consent of the
[Link] receiving State shall either facilitate the receiving State.
acquisition on its territory, in accordance with its
laws, by the sending State of premises necessary for [Link] official correspondence of the mission shall be
its mission or assist the latter in obtaining inviolable. Official correspondence means
accommodation in some other way. all correspondence relating to the mission and its
functions.
2. It shall also, where necessary, assist missions in
obtaining suitable accommodation for their [Link] diplomatic bag shall not be opened or detained.
members.
[Link] packages constituting the diplomatic bag must
Article 22 DUTY OF RECEIVING STATE bear visible external marks of their character and
[Link] premises of the mission shall be inviolable. may contain only diplomatic documents or articles
(never be broken or dishonored) The agents of the intended for official use.
receiving State may not enter them, except with the
consent of the head of the mission. [Link] diplomatic courier, who shall be provided
with an official document indicating his status
[Link] receiving State is under a special duty to take and the number of packages constituting the
all appropriate steps to protect the premises diplomatic bag, shall be protected by the receiving
of the mission against any intrusion or damage and to State in the performance of his functions. He shall
prevent any disturbance of the peace of the mission enjoy person inviolability and shall not be liable to
or impairment of its dignity. any form of arrest or detention.

[Link] premises of the mission, their furnishings and [Link] sending State or the mission may designate
other property thereon and the means of diplomatic couriers ad hoc. In such cases the
transport of the mission shall be immune from provisions of paragraph 5 of this article shall also
search, requisition, attachment or execution. apply, except that the immunities therein mentioned
shall cease to apply when such a courier has
Article 23 EXEMPTION TAXATION delivered to the consignee the diplomatic bag in his
[Link] sending State and the head of the mission shall charge.
be exempt from all national, regional or
municipal dues and taxes in respect of the premises 7.A diplomatic bag may be entrusted to the captain of
of the mission, whether owned or leased, other than a commercial aircraft scheduled to land at an
such as represent payment for specific services authorized port of entry. He shall be provided with an
rendered. official document indicating the number of packages
constituting the bag but he shall not be considered to
[Link] exemption from taxation referred to in this be a diplomatic courier. The mission may send one of
article shall not apply to such dues and taxes its members to take possession of the diplomatic bag
payable under the law of the receiving State by directly and freely from the captain of the aircraft.
persons contracting with the sending State or the
head of the mission.
Article 28 MISSION EXEMPTED FROM TAXES
Article 24 ARCHIVES & DOUCMENTS The fees and charges levied by the mission in the
The archives and documents of the mission shall be course of its official duties shall be exempt from
inviolable at any time and wherever they may all dues and taxes.
be.
Article 29 NOT LIABLE ARREST/DETENTION
Article 25 The person of a diplomatic agent shall be inviolable.
The receiving State shall accord full facilities for the He shall not be liable to any form of arrest or
performance of the functions of the mission. detention. The receiving State shall treat him with
due respect and shall take all appropriate steps to
prevent any attack on his person, freedom or dignity.

Article 26 FREEDOM OF MOVEMENT/TRAVEL Article 30

Subject to its laws and regulations concerning zones [Link] private residence of a diplomatic agent shall
entry into which is prohibited or regulated enjoy the same inviolability and protection as the
premises of the mission.
[Link] papers, correspondence and, except as provided (b) That they are covered by the social security
in paragraph 3 of article 31, his property, shall provisions which may be in force in the sending State
likewise enjoy inviolability. or a third State.

Article 31 IMMUNITY CRIMINAL/CIVIL 3.A diplomatic agent who employs persons to whom
1.A diplomatic agent shall enjoy immunity from the the exemption provided for in paragraph 2 of this
criminal jurisdiction of the receiving State. article does not apply shall observe the obligations
He shall also enjoy immunity from its civil and which the social security provisions of the receiving
administrative jurisdiction, except in the case of: State impose upon employers.
(a) A real action relating to private immovable
property situated in the territory of the receiving [Link] exemption provided for in paragraphs 1 and 2
State, unless he holds it on behalf of the sending State of this article shall not preclude voluntary
for the purposes of the mission; participation in the social security system of the
receiving State provided that such participation is
(b) An action relating to succession in which the permitted by that State.
diplomatic agent is involved as executor,
administrator, heir or legatee as a private person and [Link] provisions of this article shall not affect
not on behalf of the sending State; bilateral or multilateral agreements concerning
social security concluded previously and shall not
(c) An action relating to any professional or prevent the conclusion of such agreements in the
commercial activity exercised by the diplomatic future.
agent in the receiving State outside his official
functions. In other words:
Diplomatic agent exempted from social security
2.A diplomatic agent is not obliged to give evidence provisions; private servant exempted provided
as a witness. follow condition if not then has obligation to observe
social security provision but not voluntary need
[Link] measures of execution may be taken in respect permit by State.
of a diplomatic agent except in the cases
coming under subparagraphs (a), (b) and (c) of Article 34 EXEMPTED ALL TAXES; EXCEPT
paragraph 1 of this article, and provided that the A diplomatic agent shall be exempt from all dues and
measures concerned can be taken without infringing taxes, personal or real, national, regional or
the inviolability of his person or of his residence. municipal, except:

[Link] immunity of a diplomatic agent from the (a) Indirect taxes of a kind which are normally
jurisdiction of the receiving State does not exempt incorporated in the price of goods or services;
him from the jurisdiction of the sending State. (b) Dues and taxes on private immovable property
situated in the territory of the receiving State, unless
Article 32 IMMUNITY MAYBE WAIVED he holds it on behalf of the sending State for the
[Link] immunity from jurisdiction of diplomatic purposes of the mission;
agents and of persons enjoying immunity under (c) Estate, succession or inheritance duties levied by
article 37 may be waived by the sending State. the receiving State, subject to the provisions of
paragraph 4 of article 39;
[Link] must always be express. (d) Dues and taxes on private income having its
source in the receiving State and capital taxes on
[Link] initiation of proceedings by a diplomatic agent investments made in commercial undertakings in the
or by a person enjoying immunity from receiving State;
jurisdiction under article 37 shall preclude him from (e) Charges levied for specific services rendered;
invoking immunity from jurisdiction in respect of any (f) Registration, court or record fees, mortgage dues
counterclaim directly connected with the principal and stamp duty, with respect to immovable
claim. property, subject to the provisions of article 23.

[Link] of immunity from jurisdiction in respect of Article 35 EXEMPT PUBLIC SERVICE

civil or administrative proceedings shall not The receiving State shall exempt diplomatic agents
be held to imply waiver of immunity in respect of the from all personal services, from all public
execution of the judgement, for which a separate service of any kind whatsoever, and from military
waiver shall be necessary. obligations such as those connected with
requisitioning, military contributions and billeting.
Article 33 EXEMPT SOCIAL SERCURITY PROV.
[Link] to the provisions of paragraph 3 of this Article 36 PERSONAL BAGGAGE INSPECTION
article, a diplomatic agent shall with respect to [Link] receiving State shall, in accordance with such
services rendered for the sending State be exempt laws and regulations as it may adopt, permit
from social security provisions which may be in force entry of and grant exemption from all customs duties,
in the receiving State. taxes, and related charges other than charges for
storage, cartage and similar services, on:
[Link] exemption provided for in paragraph 1 of this (a) Articles for the official use of the mission;
article shall also apply to private servants (b) Articles for the personal use of a diplomatic agent
who are in the sole employ of a diplomatic agent, on or members of his family forming part of his
condition: household, including articles intended for his
(a) That they are not nationals of or permanently establishment.
resident in the receiving State; and
[Link] personal baggage of a diplomatic agent shall be Diplomatic Members of Members Private
exempt from inspection, unless there are agent administrative of the servants of
serious grounds for presuming that it contains and technical service members of
articles not covered by the exemptions mentioned in staff of the staff the mission
paragraph 1 of this article, or articles the import or mission
export of which is prohibited by the law or controlled
by the quarantine regulations of the receiving State.
Such inspection shall be conducted only in the
presence of the diplomatic agent or of his authorized
representative. enjoy all specified in Not exempt from
privileges articles 29 to including dues and taxe
Article 37 HOUSE HOLD MEMBERS IMMUNITY and 35, except that family, on the
[Link] members of the family of a diplomatic agent immunities the immunity immunity in emoluments
forming part of his household shall, if they are not under from civil and respect of they receive
nationals of the receiving State, enjoy the privileges Art. 29 to administrative acts by reason of
and immunities specified in articles 29 to 36. 36 jurisdiction of performed their
the receiving in the employment
State specified course of only
[Link] of the administrative and technical in paragraph 1 their duties, immunity
staff of the mission, together with members of their of article 31 exemption from
families forming part of their respective households, shall not extend from dues jurisdiction,
shall, if they are not nationals of or permanently to acts and taxes on and
resident in the receiving State, enjoy the privileges performed the inviolability,
and immunities specified in articles 29 to 35, except outside the emoluments in respect of
that the immunity from civil and administrative course of their they receive official acts
jurisdiction of the receiving State specified in duties. Also by reason of performed in
paragraph 1 of article 31 shall not extend to acts article 36, their the exercise o
performed outside the course of their duties. They paragraph 1, in employment his functions
shall also enjoy the privileges specified in article 36, respect of and the
paragraph 1, in respect of articles imported at the articles exemption
time of first installation. imported at the contained in
time of first article 33.
[Link] of the service staff of the mission who installation
are not nationals of or permanently resident in the
receiving State shall enjoy immunity in respect of
acts performed in the course of their duties,
exemption from dues and taxes on the emoluments Article 39 START TO ENJOY IMMUNITY
they receive by reason of their employment and the [Link] person entitled to privileges and immunities
exemption contained in article 33. shall enjoy them from the moment he enters the
territory of the receiving State on proceeding to take
[Link] servants of members of the mission up his post or, if already in its territory, from the
shall, if they are not nationals of or permanently moment when his appointment is notified to the
resident in the receiving State, be exempt from dues Ministry for Foreign Affairs or such other ministry
and taxes on the emoluments they receive by reason as may be agreed.
of their employment. In other respects, they may
enjoy privileges and immunities only to the extent EXPIRE/STOP IMMUNITY
admitted by the receiving State. However, the [Link] the functions of a person enjoying privileges
receiving State must exercise its jurisdiction over and immunities have come to an end, such privileges
those persons in such a manner as not to interfere and immunities shall normally cease at the moment
unduly with the performance of the functions of the when he leaves the country, or on expiry of a
mission. reasonable period in which to do so, but shall subsist
until that time, even in case of armed conflict.
However, with respect to acts performed by such a
Article 38 EXCEPT ADDITIONAL IMMUNITY person in the exercise of his functions as a member of
ADDED BY RECEIVING SATTE the mission, immunity shall continue to subsist.
[Link] insofar as additional privileges and
immunities may be granted by the receiving State, a DEATH MEMBER OF MISSION
diplomatic agent who is a national of or permanently 3. In case of the death of a member of the mission, the
resident in that State shall enjoy only immunity from members of his family shall continue to
jurisdiction, and inviolability, in respect of official enjoy the privileges and immunities to which they are
acts performed in the exercise of his functions. entitled until the expiry of a reasonable period in
which to leave the country.
[Link] members of the staff of the mission and
private servants who are nationals of or DEATH MEMBER NOT NATL. OR PERMANENT
permanently resident in the receiving State shall RESIDENT
enjoy privileges and immunities only to the extent 4. In the event of the death of a member of the
admitted by the receiving State. However, the mission not a national of or permanently resident in
receiving State must exercise its jurisdiction over the receiving State or a member of his family forming
those persons in such a manner as not to interfere part of his household, the receiving State shall permit
unduly with the performance of the functions of the the withdrawal of the movable property of the
mission. deceased, with the exception of any property
acquired in the country the export of which was
prohibited at the time of his death. Estate, succession Article 43 DIPLOMAT FUNCTION ENDS WHEN
and inheritance duties shall not be levied on movable The function of a diplomatic agent comes to an end,
property the presence of which in the receiving State inter alia:
was due solely to the presence there of the deceased (a) On notification by the sending State to the
as a member of the mission or as a member of the receiving State that the function of the diplomatic
family of a member of the mission. agent has come to an end;
(b) On notification by the receiving State to the
Article 40 OBLIGATION OF 3RD PARTY STATES sending State that, in accordance with paragraph 2 of
1. If a diplomatic agent passes through or is in the article 9, it refuses to recognize the diplomatic agent
territory of a third State, which has granted him as a member of the mission.
a passport visa if such visa was necessary, while
proceeding to take up or to return to his post, or Article 44 ARMED CONFLICT ASSIST DIPLOMAT
when returning to his own country, the third State The receiving State must, even in case of armed
shall accord him inviolability and such other conflict, grant facilities in order to enable
immunities as may be required to ensure his transit persons enjoying privileges and immunities, other
or return. The same shall apply in the case of any than nationals of the receiving State, and members of
members of his family enjoying privileges or the families of such persons irrespective of their
immunities who are accompanying the diplomatic nationality, to leave at the earliest possible moment.
agent, or travelling separately to join him or to return It must, in particular, in case of need, place at their
to their country. disposal the necessary means of transport for
themselves and their property.
2. In circumstances similar to those specified in
paragraph 1 of this article, third States shall not Article 45 MISSION BROKEN BETWEEN STATES
hinder the passage of members of the administrative If diplomatic relations are broken off between two
and technical or service staff of a mission, and of States, or if a mission is permanently or
members of their families, through their territories. temporarily recalled:

[Link] States shall accord to official correspondence (a) The receiving State must, even in case of
and other official communications in transit, armed conflict, respect and protect the premises of
including messages in code or cipher, the same the mission, together with its property and archives;
freedom and protection as is accorded by the
receiving State. They shall accord to diplomatic (b) The sending State may entrust the custody of the
couriers, who have been granted a passport visa if premises of the mission, together with its
such visa was necessary, and diplomatic bags in property and archives, to a third State acceptable to
transit, the same inviolability and protection as the the receiving State;
receiving State is bound to accord.
(c) The sending State may entrust the protection of
[Link] obligations of third States under paragraphs 1, its interests and those of its nationals to a third
2 and 3 of this article shall also apply to the persons State acceptable to the receiving State.
mentioned respectively in those paragraphs, and to
official communications and diplomatic bags, whose Article 46 TEMPORARY PROTECTION BY 3RD
presence in the territory of the third State is due to STATE
force majeure. A sending State may with the prior consent of a
receiving State, and at the request of a third State
Article 41 DUTY FOLLOW LAW OF RECEIVING not represented in the receiving State, undertake the
STATE & NOT INTERFERE INTERNAL ISSUES temporary protection of the interests of the third
[Link] prejudice to their privileges and State and of its nationals.
immunities, it is the duty of all persons enjoying such
privileges and immunities to respect the laws and Article 47 NO DSICRIMINATION
regulations of the receiving State. They also have a 1. In the application of the provisions of the present
duty not to interfere in the internal affairs of that Convention, the receiving State shall not
State. discriminate as between States.
[Link], discrimination shall not be regarded
[Link] official business with the receiving State as taking place:
entrusted to the mission by the sending State shall be
conducted with or through the Ministry for Foreign (a) Where the receiving State applies any of the
Affairs of the receiving State or such other ministry provisions of the present Convention restrictively
as may be agreed. because of a restrictive application of that provision
to its mission in the sending State;
[Link] premises of the mission must not be used in
any manner incompatible with the functions of (b) Where by custom or agreement States extend to
the mission as laid down in the present Convention each other more favourable treatment than is
or by other rules of general international law or by required by the provisions of the present Convention.
any special agreements in force between the sending
and the receiving State. Article 48
The present Convention shall be open for signature
Article 42 CANNOT PRACTICE PERSONAL by all States Members of the United Nations or of any
ACITIVITY IN RECEIVING STATE of the specialized agencies Parties to the Statute of
A diplomatic agent shall not in the receiving State the International Court of Justice, and by any other
practise for personal profit any professional or State invited by the General Assembly of the United
commercial activity. Nations to become a Party to the Convention, as
follows: until 31 October 1961 at the Federal
Ministry for Foreign Affairs of Austria and state proposes to open diplomatic relations with
subsequently, until 31 March 1962, at the United another, the first test it has to
Nations Headquarters in New York. 1. fulfil is that it is an independent state,
2. secondly that it is recognised as such by the
Article 49 other state. Its government has similarly to be
The present Convention is subject to ratification. The recognised before any diplomatic relations can
instruments of ratification shall be deposited with be opened.
the Secretary-General of the United Nations. The investigation of legation
is in fact an investigation into the nature of power,
Article 50 the transfer of power to another, and the legal
The present Convention shall remain open for limitations placed on the delegator and on the
accession by any State belonging to any of the four delegate. This scrutiny touches on the questions of
categories mentioned in article 48. The instruments who holds power and how it is held, what that
of accession shall be deposited with the Secretary- power is, and what it can do. It also touches on the
General of the United Nations. questions of who else — if anyone — holds power,
under what circumstances, and to what degree
Article 51 RIGHT OF LEGATION
[Link] present Convention shall enter into force on A. The right of legation. Also known as the right of
the thirtieth day following the date of deposit diplomatic intercourse, this refers to the right of the
of the twenty-second instrument of ratification or State to send and receive diplomatic missions, which
accession with the Secretary-General of the United enables States to carry on friendly intercourse. It is
Nations. not a natural or inherent right, but exists only by
common consent. No legal liability is incurred by the
[Link] each State ratifying or acceding to the State for refusing to send or receive diplomatic
Convention after the deposit of the twenty-second representatives. Governed by the Vienna Convention
instrument of ratification or accession, the on Diplomatic Relations (1961).
Convention shall enter into force on the thirtieth day 1. Agents of Diplomatic Intercourse.
after deposit by such State of its instrument of
ratification or accession. a) Head of State. He is the embodiment of, and
represents, the sovereignty of the State, and enjoys
Article 52 the right to special protection for his physical safety
The Secretary-General of the United Nations shall and the preservation of his honor and reputation. His
inform all States belonging to any of the four quarters, archives, property and means of
categories mentioned in article 48: transportation are inviolate under the principle of
16 exterritoriality. He is immune from criminal and civil
(a) Of signatures to the present Convention and of the jurisdiction, except when he himself is the plaintiff,
deposit of instruments of ratification or and is not subject to tax or exchange or currency
accession, in accordance with articles 48, 49 and 50; restrictions. See Mighell v. Sultan of Johore, supra..

(b) Of the date on which the present Convention will b) The Foreign Office. The actual day-to-day conduct
enter into force, in accordance with article 51. of foreign affairs is usually entrusted to a Foreign
Office, headed by a Secretary or a Minister, who, in
Article 53 proper cases, may make binding declarations on
The original of the present Convention, of which the behalf of his government [Legal Status of Eastern
Chinese, English, French, Russian and Greenland].
Spanish texts are equally authentic, shall be
deposited with the Secretary-General of the United 2. Establishment of Resident Missions. States carry
Nations, who shall send certified copies thereof to all on diplomatic intercourse through permanent
States belonging to any of the four categories missions established in the capitals of other States.
mentioned in article 48. The mission is composed of:

a) Head of Mission. The Vienna Convention classifies

the heads of mission into:
every recognised independent state is entitled to the
right of legation as one of the attributes of i) Ambassadors or nuncios accredited to Heads of
sovereignty. The right of legation, it is asserted, State, and other heads of mission of equivalent rank;
comprises the right to accredit its envoy to other ii) Envoys, ministers and internuncios, accredited to
states and the obligation to receive diplomatic Heads of State; and
representatives when accredited by those iii) Charges d’affaires, accredited to Ministers of
states.  Foreign Affairs.
“right of legation” is no more than the
“competence” of a sovereign state to accredit an b) Diplomatic Staff, composed of those engaged in
envoy to another state and to receive the diplomatic diplomatic activities and are accorded diplomatic
agent of a foreign state rank.
 right of legation, which is possessed by sovereign
states is, however, important from the standpoint of c) Administrative and Technical Staff, consisting of
international law in that it denotes the capacity of a those employed in the administrative and technical
state in law to receive and accredit diplomatic service of the mission.
envoys.
It is not every state that possesses this right since d) Service Staff, i.e., those engaged in the domestic
only independent states, which are recognised, are service of the mission.
competent in this respect . Consequently, when a
3. The Diplomatic Corps. According to custom, all Prevention and Punishment of Crimes Against
diplomatic envoys accredited to the same State form Internationally Protected Persons considers
a body known as the “Diplomatic Corps”. The doyen crimes against diplomatic agents as international,
or head of this body is usually the Papal Nuncio, if not political, in nature. However, the diplomatic
there is one, or the oldest ambassador, or, in the envoy may be arrested temporarily in case of urgent
absence of ambassadors, the oldest minister danger, such as when he commits an act of violence
plenipotentiary. which makes it necessary to put him under restraint
for the purpose of preventing similar acts; but he
4. Appointment of Envoys. In the Philippines, it is must be released and sent home in due time.
the President who appoints [Sec. 16, Art. VII,
Philippine Constitution], sends and instructs the b) Inviolability of premises and archives. The
diplomatic and consular representatives, and his premises occupied by a diplomatic mission, as well as
prerogative to determine the assignment of the the private residence of the diplomatic agent, are
country’s diplomatic representatives cannot be inviolable. The agents of the receiving State may not
questioned [De Perio-Santos v. Macaraig, G.R. No. enter without the consent of the envoy, except in
94070, April 10, 1992]. extreme cases of necessity, e.g., when the premises
are on fire, or where there is imminent danger that a
a) The sending State is not absolutely free in the crime of violence is to be perpetrated in the premises.
choice of its diplomatic representatives, especially Such premises cannot be entered or searched, and
heads of mission, because the receiving State has the neither can the goods, records and archives be
right to refuse to receive as envoy of another State a detained by local authorities even under process of
person whom it considers unacceptable. To avoid law.
embarrassment, States resort to an informal inquiry
[enquiry] as to the acceptability of a particular envoy, i) The service of writs, summons, orders or processes
to which the receiving State responds with an within the premises of the mission or residence of the
informal conformity [agrement]. This informal envoy is prohibited. Even if a criminal takes refuge
process is known as agreation. within the premises, the peace officers cannot break
into such premises for the purpose of apprehending
b) With the informal process concluded, the him. The fugitive should, however, be surrendered
diplomatic mission then commences when the envoy upon demand by local authorities, except when the
presents himself at the receiving State, generally right of asylum exists. But if it is the ambassador
armed with the following papers: (i) Lettre de himself who requests local police assistance, this
creance (letter of credence), with the name, rank and privilege cannot be invoked [Fatemi v. U.S.].
general character of the mission, and a request for
favorable reception and full credence; (ii) diplomatic ii) The Vienna Convention provides that the receiving
passport authorizing his travel; (iii) instructions, State has the special duty to protect diplomatic
which may include a document of full powers (pleins premises against invasion, damage, or any act
pouvoirs] authorizing him to negotiate on tending to disrupt the peace and dignity of the
extraordinary or special business; and (iv) cipher, or mission. However, in Reyes v. Bagatsing, 125 SCRA
code or secret key, for communications with his 553, the Supreme Court held as invalid the denial by
country. the Mayor of the application for a permit to hold a
public assembly in front of the U.S. Embassy, there
5. Functions and duties. The main functions of a being no showing of a clear and present danger that
diplomatic mission are: a) representing the sending might arise as a result of such a rally.
State in the receiving State; b) Protecting in the
receiving State the interests of the sending State and iii) The premises of the mission, their furnishings and
its nationals, within the limits allowed by other property thereon, and the means of transport
international law; c) negotiating with the government of the mission shall be immune from search,
of the receiving State; d) ascertaining, by all lawful requisition, attachment or execution. Inviolability
means, the conditions and developments in the also extends to the archives, documents, papers and
receiving State and reporting these to the sending correspondence of the mission at all times and
State; and e) promoting friendly relations between wherever they may be, and the receiving State has
the sending State and the receiving State, and the duty to respect and protect their confidential
developing their economic, cultural and scientific character.
relations.
iv) Unless the right is recognized by treaty or by local
6. Diplomatic immunities and privileges. Except as usage, an envoy should not permit the premises of his
provided below, the following diplomatic immunities mission or his residence to be used as a place of
and privileges shall be enjoyed by the envoy and the asylum for fugitives from justice. An envoy may,
members of the diplomatic retinue, i.e., the however, in the interests of humanity, afford
administrative and technical staff. temporary shelter to persons in imminent peril of
their lives, such as those fleeing from mob violence.
a) Personal inviolability. The person of the
diplomatic representative is inviolable; he shall not c) Right of official communication. The right of an
be liable to any form of arrest or detention. The envoy to communicate with his government fully and
receiving State shall treat him with due respect and freely is universally recognized. The mission may
take all steps to prevent any attack on his person, employ all appropriate means to send and receive
freedom or dignity. In the Philippines, R.A. 75 messages, whether ordinary or in cipher, by any of
punishes, on the basis of reciprocity, any person who the usual modes of communication or by means of
assaults, strikes, wounds, offers violence to the diplomatic couriers. Because of this right, the
person of the ambassador or minister (except if diplomatic pouch and diplomatic couriers shall also
done in self-defense). The UN Convention on the enjoy inviolability.
 of Foreign Affairs.
d) Immunity from local jurisdiction. Under the
1961 Vienna Convention on Diplomatic Relations, a v) As part of the envoy’s immunity from local
diplomatic agent shall enjoy immunity from criminal jurisdiction, the children born to him while he
jurisdiction of the receiving State. Thus, he cannot be possesses diplomatic status are regarded as born in
arrested, prosecuted and punished for any offense he the territory of his home State.
may commit, unless his immunity is waived. But
immunity from jurisdiction does not mean e) Exemption from taxes and customs duties.
exemption from local law; it does not presuppose a Under the Vienna Convention, diplomatic agents are
right to violate the laws of the receiving State. exempt from all dues and taxes, whether personal or
Diplomatic privilege does not import immunity from real, national, regional or municipal, except the
legal liability but only exemption from local following:
jurisdiction [Dickinson v. Del Solar, 1 K.B. 376]. [i] indirect taxes normally incorporated in the price
of goods or services;
i) The diplomatic agent also enjoys immunity from [ii] dues and taxes on private immovable property
the civil and administrative jurisdiction of the situated in the territory of the receiving State, unless
receiving State, and thus, no civil action of any kind he holds it on behalf of the sending State for purposes
may be brought against him, even with respect to of the mission;
matters concerning his private life. As a rule, his [iii] estate, succession or inheritance taxes levied by
properties are not subject to garnishment, seizure for the receiving State;
debt, execution and the like, except in the following [iv] dues and taxes on private income having its
cases: a) any real action relating to private source in the receiving State and capital taxes on
immovable property situated in the territory of the investments in commercial ventures in the receiving
receiving State, unless the envoy holds it on behalf of State;
the sending State for the purposes of the mission; b) [v] charges levied for specific services rendered; and
an action relating to succession in which the [vi] registration, court or record fees, mortgage dues
diplomatic agent is involved as executor, and stamp duty, with respect to immovable property.
administrator, heir or legatee as a private person and
not on behalf of the sending State; and c) an action i) The Vienna Convention also provides for
relating to any professional or commercial activity exemption from all customs duties and taxes of
exercised by the diplomatic agent in the receiving articles for the official use of the mission and those
State outside his official functions. for the personal use of the envoy or members of the
family forming part of his household, including
ii) This immunity also means that the diplomatic articles intended for his establishment. Baggage and
agent cannot be compelled to testify, not even by effects are entitled to free entry and, normally,
deposition, without the consent of his government, exempt from inspection; articles addressed to
before any judicial or administrative tribunal in the ambassadors, ministers, charge d’affaires are also
receiving State. exempt from customs inspection.

iii) However, see Minucher v. Court of Appeals, G.R. f) Other privileges, which include freedom of
No. 97765, September 24, 1992, where the Supreme movement and travel in the territory of the receiving
Court held that the act of private respondent Drug State; exemption from all personal services and
Enforcement Agent of the U.S. in the frame-up of military obligations; the use of the flag and emblem of
petitioner was unauthorized and could not be the sending State on the diplomatic premises and the
considered performed in the discharge of official residence and means of transport of the head of
functions, despite a belated diplomatic note from the mission.
US Embassy; thus, suit against the private respondent
was upheld, being a suit against him in his personal 7. Duration of immunities/privileges. The
and private capacity. See also Shauf v. Court of privileges are enjoyed by the envoy from the moment
Appeals, 191 SCRA 713, where it was held that the he enters the territory of the receiving State, and
immunity does not protect a public official who shall cease only the moment he leaves the country, or
commits unauthorized acts, inasmuch as such on expiry of a reasonable time in which to do so;
unauthorized acts are not acts of State. Accordingly, although with respect to official acts, immunity shall
he may be sued for such unlawful acts in his private continue indefinitely. These privileges are available
capacity. even in transitu, when traveling through a third State
on the way to or from the receiving State.
iv) Subject to the rule on reciprocity, Republic Act
No. 75 declares as void any writ or process issued out 8. Waiver of immunities. Diplomatic privileges may
or prosecuted by any person in any court of the be waived, but as a rule, the waiver cannot be made
Philippines, or by any judge or justice, whereby the by the individual concerned since such immunities
person of any ambassador or public minister of any are not personal to him. Waiver may be made only
foreign State, authorized and received as such by the by the government of the sending State if it
President, or any domestic servant of any such concerns the immunities of the head of mission;
ambassador or minister, is arrested or imprisoned, or in other cases, the waiver may be made either by the
his goods or chattels distrained, seized or attached; government or by the chief of mission. Waiver of this
and penalties are imposed for violation of this privilege, however, does not include waiver of the
provision. However, this privilege is not granted to: immunity in respect of the execution of judgment;
[a] citizens/inhabitants of the Philippines, where the a separate waiver for the latter is necessary.
process is founded upon a debt contracted before his
employment in the diplomatic service; 9. Termination of diplomatic mission. The usual
[b] domestic servants of the ambassador or minister modes of terminating official relations, such as death,
whose names are not registered with the Department resignation, removal or abolition of office, will
terminate the diplomatic mission. Other modes are
recall by the sending State, dismissal by the receiving
State, war between the receiving and the sending
States, or the extinction of the State.

B. Consular Relations. Consuls are State agents Diplomat Consul

residing abroad for various purposes but mainly in Functions & Functions and pertain to
the interest of commerce and navigation. Duties duties. The main commerce and
functions of a navigation,
1. Kinds of Consuls: diplomatic mission issuance of visa
are: (permit to visit
a) Consules missi are professional and career consuls, his country), and
and nationals of the appointing state. a) representing the such as are
b) Consules electi are selected by the appointing state sending State in designed to
either from its own citizens or from among nationals the receiving State; protect nationals
abroad. of the appointing
b) Protecting in state.
2. Ranks: the receiving State
the interests of the
a) Consul General, who heads several consular sending State and
districts, or one exceptionally large consular district. its nationals,
b) Consul, who takes charge of a small district or within the limits
town or port allowed by
c) Vice Consul, who assists the consul international law;
d) Consular agent, who is usually entrusted with the
performance of certain functions by the consul. c) negotiating with
the government of
3. Appointment. Two important documents are the receiving State;
necessary before the assumption of consular
functions, namely: d) ascertaining, by
all lawful means,
a) Letters patent [lettre de provision], which is the the conditions and
letter of appointment or commission which is developments in
transmitted by the sending state to the Secretary of the receiving State
Foreign Affairs of the country where the consul is to and reporting
serve; and these to the
sending State; and
b) Exequatur, which is the authorization given to the
consul by the sovereign of the receiving state, e) promoting
allowing him to exercise his function within the friendly relations
territory. between the
sending State and
4. Functions. Generally, the functions pertain to the receiving State,
commerce and navigation, issuance of visa (permit to and developing
visit his country), and such as are designed to protect their economic,
nationals of the appointing state. cultural and
scientific relations.
5. Immunities and privileges. Under the 1963
Vienna Convention on Consular Relations, consuls Immunities a. Personal freedom of
are allowed freedom of communication in cipher or inviolability communication
otherwise; inviolability of archives, but not of the in cipher or
premises where legal processes may be served and b. Inviolability of otherwise;
arrests made; exempt from local jurisdiction for premises and inviolability of
offenses committed in the discharge of official archives archives, but not
functions, but not other offenses except minor of the premises
infractions; exempt from testifying on official c. right of official where legal
communications or on matters pertaining to consular communication. processes may be
functions; exempt from taxes, customs duties, served and
military or jury service; and may display their [Link] from arrests made;
national flag and emblem in the consulate. local jurisdiction
exempt from
a) These immunities and privileges are also available d. Exemption local
to the members of the consular post, their families from taxes and jurisdiction for
and their private staff. Waiver of immunities may be customs duties. offenses
made by the appointing state. EXCEPT! committed in the
i] indirect taxes discharge of
6. Termination of consular mission. Usual modes of normally official functions,
terminating official relationship; withdrawal of the incorporated in but not other
exequatur; extinction of the state; war. the price of goods offenses except
or services; minor
a) Severance of consular relations does not [ii] dues and taxes infractions;
necessarily terminate diplomatic relations. on private
immovable exempt from residence and
property situated testifying on means of transport
in the territory of official of the head of
the receiving State, communications mission.
unless he holds it or on matters
on behalf of the pertaining to
sending State for consular Waiver can be waive by can be waive by
purposes of the functions; govt. of sending APPOINTING
mission; state head of STATE.
[iii] estate, exempt from mission; waiver of
succession or taxes, customs execution of
inheritance taxes duties, military judgement is
levied by the or jury service; seperate need to
receiving State; and may display have separate
[iv] dues and taxes their national waiver of this,
on private income flag and emblem Terminatio death, resignation, withdrawal of
having its source in the consulate. n removal or the exequatur;
in the receiving abolition of office, extinction of the
State and capital recall by the state; war.
taxes on sending State,
investments in dismissal by the
commercial receiving State,
ventures in the war between the
receiving State; receiving and the
[v] charges levied sending States, or
for specific the extinction of
services rendered; the Stat
[vi] registration, Documents i) Lettre de a.)Letters patent
court or record creance (letter of [lettre de
fees, mortgage credence), provision], which
dues and stamp is the letter of
duty, with respect (ii) diplomatic appointment or
to immovable passport commission
property. authorizing his which is
travel; transmitted by
the sending state
EXEMPTED (iii) instructions, to the Secretary
CUSTOM DUTIES: which may include of Foreign Affairs
including articles a document of full of the country
intended for his powers (pleins where the consul
establishment. pouvoirs] is to serve; and
Baggage and
effects are entitled (iv) cipher, or b) Exequatur,
to free entry and, code or secret which is the
normally, exempt key, for authorization
from inspection; communications given to the
articles addressed with his country. consul by the
to ambassadors, sovereign of the
ministers, charge receiving state,
d’affaires are also allowing him to
exempt from exercise his
customs function within
inspection. the territory.

f. other privileges Kinds Head of Mission. a) Consules

[Link] of i) Ambassadors or missi
movement and nuncios accredited
travel in the to Heads of State, b) Consules
territory of the and other heads of electi
receiving State mission of
equivalent rank; Ranks:
[Link] from
all personal ii) Envoys, a) Consul
services and ministers and General, who
military internuncios, heads several
obligations accredited to consular
Heads of State; and districts, or one
3. the use of the exceptionally
flag and emblem of iii) Charges large consular
the sending State d’affaires, district.
on the diplomatic accredited to b) Consul, who
premises and the Ministers of takes charge of a
 Foreign Affairs. small district or 3. Envoy presenting himself arm with following
town or port paper such as the Letter of credence
b) Diplomatic c) Vice Consul, Q:What is personal inviolability? Di ma dakpan ang
Staff, composed of who assists the ambassador they shall be treated with due respect.
those engaged in consul Q: If namatay asa sya e try in Phils or home state?
diplomatic d) Consular RA. NO. 75 GAWAS EXAM
activities and are agent, who is AN ACT TO PENALIZE ACTS WHICH WOULD
accorded usually entrusted IMPAIR THE PROPER OBSERVANCE BY THE
diplomatic rank. with the REPUBLIC AND INHABITANTS OF THE
performance of PHILIPPINES OF THE IMMUNITIES, RIGHT, AND
c) Administrative certain functions PRIVILEGES OF DULY ACCREDITED FOREIGN
and Technical by the consul. DIPLOMATIC AND CONSULAR AGENTS IN THE
Staff, consisting of PHILIPPINES
those employed in FALSE REPRESENTATION/IMRISONATOR
the administrative Section 1. Any person who shall falsely assume and
and technical take upon himself to act as a diplomatic, consular, or
service of the any other official of a foreign government duly
mission. accredited as such to the Government of the Republic
of the Philippines with intent to defraud such foreign
d) Service Staff, government or the Government of the Philippines, or
i.e., those engaged any person, or in such pretended character shall
in the domestic demand or obtain, or attempt to obtain from person
service of the or from said foreign government or the Government
mission. of the Philippines, or from any officer thereof, any
money, paper, document, or other thing, of value,
shall be fined not more than five thousand pesos, or
Q: Can a state wanted to send representative to shall be imprisoned for not more than five years, or
state B kalit2 gi cancel nila? Yes, under the Vienna both, in addition to the penalties that may be
Convention they have the right and power to object a imposed under the Revised Penal Code.
representative by sending state even without reason
for the decision. In case the sending state fails to ACT WITHOUT PRIOR
follow they will not recognize the representative by NOTIFICATION/REGISTRATION
the sending state. Section 2. Any person, other than a diplomatic or
Other: The sending State is not absolutely free in the consular officer or attaché, who shall act in the
choice of its diplomatic representatives, especially Republic of the Philippines as an agent of a foreign
heads of mission, because the receiving State has the government without prior notification to, and
right to refuse to receive as envoy of another State a registration with, the Secretary of Foreign Affairs
person whom it considers unacceptable. To avoid shall be fined not more than five thousand pesos, or
embarrassment, States resort to an informal inquiry imprisoned not more than five years, or both, aside
[enquiry] as to the acceptability of a particular envoy, from other penalties that may be imposed by law.
to which the receiving State responds with an
informal conformity [agrement]. This informal DECEIVE BY WEARING UNIFORM
process is known as agreation. Section 3. Any person, who with intent to deceive or
mislead, within the jurisdiction of the Republic, wear
Q: Can state a as matter of right deploy sa other any naval, military, police, or other official uniform,
state? Yes, provided that there is mutual consent by decoration, or regalia of any foreign State, nation or
both States and that sending state must be an government with which the Republic of the
independent state and recognize state in order to be Philippines is at peace, or any uniform, decoration or
eligible to send a representative. regalia so nearly resembling the same as to be
Other: It is not every state that possesses this right calculated to deceive, unless such wearing thereof be
since only independent states, which are recognised, authorized by such State, nation, or government, shall
are competent in this respect . Consequently, when a upon conviction, be punished by a fine not exceeding
state proposes to open diplomatic relations with two hundred pesos or imprisonment not exceeding
another, the first test it has to six months, or by both such fine and imprisonment.
1. fulfil is that it is an independent state,
2. secondly that it is recognised as such by the SUED IN COURT, VOID
other state. Its government has similarly to be Section 4. Any writ or process sued out or
recognised before any diplomatic relations can prosecuted by any person in any court of the
be opened. Republic of the Philippines, or by any judge or justice,
Q: How diplomatic mission commence/ How whereby the person of any ambassador or public
sending and receiving diplomatic done of minister of any foreign State, authorized and received
ambassadors? Article 13 and 16 Vienna Convention as such by the President, or any domestic or domestic
1. Agreement by parties or acquire consent servant of any such ambassador or minister is
sending state to send representative to arrested or imprisoned, or his goods or chattels are
receiving state / Diplomatic distrained, seized, or attached, shall be deemed void,
missions are set up after the establishment and every person by whom the same is obtained or
of diplomatic relations and in accordance prosecuted, whether as party or as attorney, and
with agreements reached by the states every officer concerned in executing it, shall upon
concerned. conviction, be punished by imprisonment for not
more than three years and a fine of not exceeding two
2. Once acquire Consent they notify the hundred pesos in the discretion of the court.
receiving stated
SEC. 4 NOT APPLY TO CITIZEN/INHAPBITANT OF members — China, France, the Russian
PHIL. Federation, the United Kingdom of Great
Section 5. The provisions of section four hereof shall Britain and Northern Ireland and the United
not apply to any case where the person against whom States of America — have voted against the
the process is issued is a citizen or inhabitant of the application.
Republic of the Philippines, in the service of an  If the Council recommends admission, the
ambassador or a public minister, and the process is recommendation is presented to the General
founded upon a debt contracted before he entered Assembly for consideration. A two-thirds
upon such service; nor shall the said section apply to majority vote is necessary in the Assembly for
any case where the person against whom the process admission of a new State.
is issued is a domestic servant of an ambassador or a  Membership becomes effective the date the
public minister, unless the name of the servant has, resolution for admission is adopted.
before the issuing thereof, been registered in the At each session, the General Assembly considers the
Department of Foreign Affairs, and transmitted by credentials of all representatives of Member States
the Secretary of Foreign Affairs to the Chief of Police participating in that session. During such consideration,
of the City of Manila, who shall upon receipt thereof which routinely takes place first in the nine-member
post the same in some public place in his office. All Credentials Committee but can also arise at other times,
persons shall have resort to the list of names so the issue can be raised whether a particular
posted in the office of the Chief of Police, and take representative has been accredited by the Government
copies without fee. actually in power. This issue is ultimately decided by a
majority vote in the Assembly. It should be noted that
ASSAULT OR VIOLENCE the normal change of Governments, as through a
Section 6. Any person who assaults, strikes, wounds, democratic election, does not raise any issues
imprisons or in any other manner offers violence to concerning the credentials of the representative of the
the person of an ambassador or a public minister, in State concerned.
violation of the law of nations, shall be imprisoned
not more than three years, and fined not exceeding Q: How admission is conducted?
two hundred pesos, in the discretion of the court, in XIV. Admission of New Members to the United
addition to the penalties that may be imposed under Nations
the Revised Penal Code. Applications
Rule 134
NOT APPLY IF NOT PROVIDE SAME PROTECTION Any State which desires to become a Member of the
Section 7. The provisions of this Act shall be United Nations shall submit an application to the
applicable only in case where the country of the Secretary-General. Such application shall contain a
diplomatic or consular representative adversely declaration, made in a formal instrument, that the
affected has provided for similar protection to State in question accepts the obligations contained in
duly accredited diplomatic or consular the Charter.
representatives of the Republic of the Philippines by Notification of applications
prescribing like or similar penalties for like or similar Rule 135
offenses herein. The Secretary-General shall, for information, send a
copy of the application to the General Assembly, or to
UNITED NATION: the Members of the United Nations if the Assembly is
Q: What are the qualifications of membership for not in session.
UN? Consideration of applications and decision thereon
The requisite conditions are five in number: to be Rule 136
admitted to membership in the United Nations, an If the Security Council recommends the applicant
applicant must (1) be a State; (2) be peace-loving; State for membership, the General Assembly shall
(3) accept the obligations of the Charter; (4) be able consider whether the applicant is a peace-loving
to carry out these obligations; and (5) be willing to State and is able and willing to carry out the
do so. obligations contained in the Charter and shall decide,
Q:How does a new State or Government obtain by a two-thirds majority of the members present and
recognition by the United Nations? voting, upon its application for membership.
The recognition of a new State or Government is an act Rule 137
that only other States and Governments may grant or If the Security Council does not recommend the
withhold. It generally implies readiness to assume applicant State for membership or postpones the
diplomatic relations. The United Nations is neither a consideration of the application, the General
State nor a Government, and therefore does not possess Assembly may, after full consideration of the special
any authority to recognize either a State or a report of the Security Council, send the application
Government. As an organization of independent States, back to the Council, together with a full record of the
it may admit a new State to its membership or accept discussion in the Assembly, for further consideration
the credentials of the representatives of a new and recommendation or report.
Government.
The procedure is briefly as follows: Notification of decision and effective date of
 The State submits an application to the membership
Secretary-General and a letter formally Rule 138
stating that it accepts the obligations under The Secretary-General shall inform the applicant
the Charter. State of the decision of the General Assembly. If the
 The Security Council considers the application is approved, membership shall become
application. Any recommendation for effective on the date on which the General Assembly
admission must receive the affirmative votes takes its decision on the application.
of 9 of the 15 members of the Council,
provided that none of its five permanent
Q: When can suspend of a membership and what fulfil in good faith the obligations assumed by them in
are the grounds? accordance with the present Charter.
member of the United Nations, against whom
enforcement action has been taken by the Security 3. All Members shall settle their international
Council, can be suspended from exercising the disputes by peaceful means in such a manner that
rights and privileges of the United Nations by international peace and security, and. justice, are not
General Assembly on recommendation of the endangered.
Security Council. This is provided in the Article 5 of
the Charter. 4. All Members shall refrain in their international
A Member of the United Nations which has relations from the threat or use of force against the
persistently violated the Principles contained in the territorial integrity or political independence of any
present Charter may be expelled from the state, or in any other manner inconsistent with the
Organization by the General Assembly upon the Purposes of the United Nations.
recommendation of the Security Council."
Membership - Suspension and expulsion 5. All Members shall give the United Nations every
The Charter provides that a member against which assistance in any action it takes in accordance with
the Security Council has taken preventive or the present Charter, and shall refrain from giving
enforcement action may be suspended from the assistance to any state against which the United
exercise of the rights and privileges of membership Nations is taking preventive or enforcement action.
by the General Assembly upon the recommendation
of the Security Council. However, only the Security 6. The Organization shall ensure that states which are
Council, not the General Assembly, has the power to not Members of the United Nations act in accordance
restore these rights. Any member that "has with these Principles so far as may be necessary for
persistently violated the Principles" of the Charter the maintenance of international peace and security.
may be expelled from the UN by the same procedure.
Up to the end of 2002, no cases of suspension of 7. Nothing contained in the present Charter shall
rights or expulsion had been recommended by the authorize the United Nations to intervene in matters
Security Council. which are essentially within the domestic jurisdiction
Q: Can Philippines or a state can withdraw from of any state or shall require the Members to submit
UN? UN is silent about it. If the Philippines leaves such matters to settlement under the present
the United Nations, the most significant and Charter; but this principle shall not prejudice the
immediate effect that would have is application of enforcement measures under Chapter
the Philippines losing power in the international VII.
arena CHAPTER II
CHAPTER I MEMBERSHIP
PURPOSES AND PRINCIPLES Article 3
Article 1 The original Members of the United Nations shall be
The Purposes of the United Nations are: the states which, having participated in the United
1. To maintain international peace and security, Nations Conference on International Organization at
and to that end: to take effective collective measures San Francisco, or having previously signed the
for the prevention and removal of threats to the Declaration by United Nations of 1 January 1942, sign
peace, and for the suppression of acts of aggression the present Charter and ratify it in accordance with
or other breaches of the peace, and to bring about by Article 10.
peaceful means, and in conformity with the principles Article 4
of justice and international law, adjustment or 1. Membership in the United Nations is open to a
settlement of international disputes or situations other peace-loving states which accept the
which might lead to a breach of the peace; obligations contained in the present Charter and, in
the judgment of the Organization, are able and willing
2. To develop friendly relations among nations based to carry out these obligations.
on respect for the principle of equal rights and self- 2. The admission of any such state to membership in
determination of peoples, and to take other the Nations will be effected by a decision of the
appropriate measures to strengthen universal peace; General Assembly upon the recommendation of the
Security Council.
3. To achieve international co-operation in solving Article 5
international problems of an economic, social, A Member of the United Nations against which
cultural, or humanitarian character, and in promoting preventive or enforcement action has been taken by
and encouraging respect for human rights and for the Security Council may be suspended from the
fundamental freedoms for all without distinction as exercise of the rights and privileges of membership
to race, sex, language, or religion; and by the General Assembly upon the recommendation
4. To be a centre for harmonizing the actions of of the Security Council. The exercise of these rights
nations in the attainment of these common ends. and privileges may be restored by the Security
Council.
Article 2 Article 6
The Organization and its Members, in pursuit of A Member of the United Nations which has
the Purposes stated in Article 1, shall act in persistently violated the Principles contained in the
accordance with the following Principles. present Charter may be' expelled from the
1. The Organization is based on the principle of the Organization by the General Assembly upon the
sovereign equality of all its Members. recommendation of the Security Council.

2. All Members, in order to ensure to a of them the COMMON QUESTIONS:

rights and benefits resulting from membership, shall Q:How far does diplomatic immunity go?
How far does diplomatic immunity go? It depends
on your rank. Top diplomatic officers have
full immunity, as do their deputies and families. That
means ambassadors can commit just about any crime
—from jaywalking to murder—and still
be immune from prosecution.

Q: Are there any exceptions to diplomatic

immunity? only when the home country and the host
country enter a special agreement (or treaty) for that
purpose.

Q:What is the reason for diplomatic immunity?

Immunity is considered a cornerstone
of diplomacy and is intended to
protect diplomats and their families in hostile
environments or from harassment in host countries

JURISDICTION OF STATES:
Q: Who has jurisdiction or law apply if the crime
committed at a foreign state?

The state who shall have jurisdiction from where the

crime commenced and their state of law must
prosper. However, for private individual committed
on the Philippines RPC shall apply.

FINALS:
The Facts and Issues on Benham Rise (pdf)

Dispute Resolution under UN

Peaceful settlement of dispute is a cardinal principle

of UN
 During the tribunal process, the employee is eligible
to receive legal counsel from the Office of Staff Legal
Assistance.
General Principles of Responsibility (State
Responsibility)

Responsibility for Acts Affecting Individuals

The responsibility of states
The rights accorded to states under international law
imply responsibilities. States are liable
for breaches of their obligations, provided that
the breach is attributable to the state itself. A state is
responsible for direct violations of international law
—e.g., the breach of a treaty or the violation of
another state’s territory. A state also is liable for
breaches committed by its internal institutions,
however they are defined by its domestic law; by
entities and persons exercising governmental
authority; and by persons acting under the direction
or control of the state. These responsibilities exist
even if the organ or entity exceeded its authority.
Further, the state is internationally responsible for
the private activities of persons to the extent that
they are subsequently adopted by the state. In 1979,
for example, the Iranian government officially
supported the seizure of the U.S. embassy by
militants and the subsequent holding of diplomats
and other embassy staff as hostages. A state is not
internationally responsible if its conduct was
required by a peremptory norm of general
international law, if it was taken in conformity with
the right to self-defense under the UN Charter, if
it constituted a legitimate measure to pressure
How does the United Nations resolve dispute? - another state to comply with its international
United Nations Dispute Tribunal may refer cases for obligations, if it was taken as a result of a force
mediation. If the assistance of the majeure (French: “greater force”) beyond the state’s
Ombudsman does not lead to a solution, and other control, if it could not reasonably be avoided in order
informal attempts to resolve the dispute have failed, to save a life or lives, or if it constituted the only
the staff member may wish to move forward with means of safeguarding an essential interest of the
bringing their grievance to the formal process. state against a grave and imminent peril, where no
essential interest of the states toward which the
Diplomatic methods of dispute settlement are obligation exists (or of the international community)
was impaired.
 negotiation, A state must make full reparation for any injury
 enquiry, caused by an illegal act for which it is internationally
 mediation, responsible. Reparation consists of restitution of the
 conciliation, original situation if possible, compensation where
 and good offices this is not possible, or satisfaction (i.e.,
acknowledgment of and apology for the breach) if
Since 2009, internal resolution of UN labor disputes neither is possible.
has taken place through the UN Internal Justice One controversial aspect of international law has
System, which is managed by the UN Office of been the suggestion, made by the International Law
Administration of Justice. Commission in its 1996 draft on State Responsibility,
In this system, UN employees who have a dispute are that states can be held responsible for “international
encouraged to use ADR methodologies, rather than crimes” (comprising internationally wrongful acts
litigation, to resolve their work-disputes. This is resulting from the breach by a state of an
facilitated by the UN Ombudsman and Mediation international obligation so essential for the
Services. protection of the international community’s
UN employees also have additional options for seeing fundamental interests that its breach is recognized as
a formal resolution of their work-related disputes. a crime by that community). Examples given
 If a UN employee wants to contest an included aggression, colonial domination,
administrative decision that impacts his or and genocide. In addition to the argument that states
her work, he or she may do so through (as distinct from individuals) could not be guilty of
requesting a management evaluation. crimes as such, serious definitional problems arose,
 If the management evaluation is and there was concern over the consequences of such
unsatisfactory, then the employee may apply crimes for states. Accordingly, in its draft articles
to designated UN Tribunals (the Dispute finally adopted in 2001, the International Law
Tribunal and the Appeals Tribunal) to hold Commission dispensed with this
a hearing and issue a ruling on his or her politically divisive approach but retained the idea of a
grievance. more serious form of international wrong. The
commission emphasized the concept of serious
breaches of obligations arising under a peremptory
norm of international law (i.e., the rules of jus cogens,
or those deemed essential for the protection of
fundamental international interests). In such
circumstances, all states are under an obligation not
to recognize such a situation and to cooperate in
ending it.

In traditional inlt. Individual considered objects and

not subject of Intl. law.

Ultra Vires Acts – an unlawful act may be imputed to

the state even where it was beyond the legal capacity
of the official involved, providing, that the officials
have acted at least all appearances as competent
officials or organs or they must have used powers or
methods appropriate to their official capacity.

Moses case 1953 – the claimant’s property had

taken by error, The Italian govt. was nevertheless
held responsible.
Breach of article 26,29 and 31 of 1961 Vienna
ULTRA VIRES ACTS convention.

Taking of Property Nationalization and

Expropriation

What is Expropriation?
Expropriation refers to a government taking over any
property that is privately owned, with or without the
permission of the owners, for the benefit of the
general public. Properties can be expropriated for the
construction of roadways, airports, and other
infrastructure projects. The government can also
expropriate property in a heavily polluted locality to
move the residents to a place with a cleaner
environment.
Since the government seizes property for public
benefit, owners’ consent is not required. However,
they must be given “just compensation” for their
property. Generally, just compensation should be
equivalent to the market value of the property, but
the amount might not be considered fair by the
owners.
For example, when the government seizes the
property of a landlord, the latter will seek
compensation not only for the property but also for
the rent that is lost. However, the market value might
not be enough to cover the forgone rental income.
 
Summary
 Expropriation refers to a government
taking over any property that is privately
owned, with or without the permission of
the owners, for the benefit of the general
public.
 Owners must be compensated fairly, with
an amount equivalent to the market value
of the property.
 International law also allows governments
to expropriate properties owned by
foreign entities within its domestic
territory, provided it fulfills certain
criteria.
  because sometimes indirect expropriation is not even
The Process of Expropriation considered as expropriation. Since there is no legal
Expropriation consists of the following steps: transfer of title, the State can refuse to acknowledge
  such restrictions on the foreign investor as
1. Condemnation expropriatory in nature.
When a government seizes private property for The investor can file a lawsuit for the same in a court
public use, it is known as condemnation. The of law, which will need to identify the situation as an
constitutions of most countries allow their expropriation. Even if the investor wins the case, the
governments to do so. For example, the U.S. amount of compensation is not defined by the market
Constitution gives the right of eminent domain to value of the property.
government bodies at the federal, state, and  
municipal levels. It allows them to acquire the title of Practical Example
ownership of any property for public use after paying To understand the difference between the two kinds
adequate compensation to the previous owners. of expropriation better, consider the following
  example. Investor A is a national of Country X and
2. Appraisal owns a plot of land in Country Y.
Appraisal requires the government to evaluate the Situation 1 (Direct expropriation): The
market value of the property seized in order to government of Country Y seizes the land, and
estimate the amount of compensation. constructs a highway and a toll booth on it.
The appraisal should be conducted by a neutral third Situation 2 (Indirect expropriation): The
party. government of Country Y issues a regulation to
  construct a highway and a toll booth on the land, and
3. Offer deprives A of keeping the earnings from the toll
Once the current market value of the acquired booth. The ownership of the land, however, remains
property is appraised, the government offers the with A.
previous owners what it considers an adequate Situation 3 (No expropriation): Investor A
amount of compensation. constructs a highway and a toll booth on the plot of
  land.
4. Negotiation  
In case the property owners are dissatisfied with the
amount of compensation or the cause of
expropriation, they can challenge the government in
both cases in a court of law.
 
Expropriation of Foreign Property
International law allows governments to expropriate
properties owned by foreign entities within its
domestic territory as long as the following conditions
are satisfied:
 The property must be seized for public
benefit.
 The seizure must be non-discriminatory.
 The actions of the State must be in keeping
with international norms for dealing with
foreign individuals and properties.
 The State must offer fair compensation.
 
Also referred to as nationalization, expropriation of
foreign property is of two types:
 
1. Direct Expropriation
Direct expropriation occurs when there is a legal
transfer of title of the property. Along with the
property, the foreign owners also give up any returns
that might’ve been expected from their investment in
the property.
The domestic government assumes both ownership
of the property, as well as the right to employ it
commercially. The foreign investor must be paid a
compensation equivalent to the true market value of
the investment.
 
2. Indirect Expropriation
Under indirect expropriation, the foreign investor
retains the title to the property but forgoes the right
to earn any returns from the investment. The
domestic government does not seize the property
absolutely but acquires the right to keep any earnings
arising out of commercialization of the property.
Unlike its direct counterpart, indirect expropriation
is not considered unlawful if the State does not offer
any compensation to the foreign investor. It is
TWO TYPES OF EXPROPRIATION

Texaco overseas petroleum co vs. Libya case

Responsibility for Environmental Harm
(Look PDF Environmental Harm law)
 pursue a remedy. [3] For which Principles of state
responsibility constituted the baseline enforcement
system when public international law begun to
engage with environmental concerns by applying
general rules to situations involving environmental
harm such as the obligation to ensure that activities
with in one state do not damage the territory or
nationals or other states.
Principles of state responsibility
Article 1 of the ILC articles on responsibility of states
for internationally wrongful acts expresses the basic
principle that an internationally wrongful act by a
state entails the international responsibility of that
state [4] . In relation to any international claim
concerning environmental matters it is therefore
essential first to identify the relevant international
obligation that has been breached.
Discussion of state responsibility for environmental
harm often revolves around examples such as the
Trail Smelter case [5] scenario there industrial
activities in Canada caused damage to the
environment across the border in the united States.
However , the law of state responsibility is of much
broader application and will operated whenever
there has been a breach of an international obligation
whatever its source. It functions as a type of
international civil liability for wrongful action and as
such has both corrective functions (by establishing a
system of remedies, including compensation and
preventative objectives by deterring wrongful
In general sense principles of international law behaviour.
imposing liability on actors for their illegal acts, or for The mere fact that a wrongful act has been identified
the adverse consequences of their lawful activities, does not necessarily mean that there is a remedy,
are relatively well developed at a general level. because only injured states possess standing to
Environmental damage known as damage to the invoke the responsibility of a state that has violated
environment, which has been defined in treaties and international law. [6] A state will be injured in the
other international acts to include four possible relevant sense if the obligation infringed was owed to
elements: that state individually. There will also be an injury if
a) Fauna, flora, soil, water, and climatic factors the obligation breached was owed to a group of
b) Material assets, states or the international community as a whole and
c) The landscape and environmental amenity and the breach specially affected the injured
d) The interrelationship between the above factors. state. [7] These principles apply reasonably well to
In this State liability refers here to the liability of situations such as the trail smelter case involving
international persons under the operation of rules of Trans boundary damage to the environment of
international law of state responsibility. State have another state, or to damage to global commons areas
long recognised the role of liability for environmental that also involves discernible impact upon one or
damage, as well as the gaps and inadequacies which more states. In this regard an example given by the
exist. principle 22 of Stockholm declaration ILC is pollution on the high seas, in violation of article
recognised gaps and called on states to cooperate to 194 of the LOS convention, which specially affects
develop further the international law regarding one or more coastal states by damaging coastal
liability and compensation for victims of pollution environments.
and other environmental damage caused by activities The articles on state responsibility seek to deal with
within the jurisdiction or control of such states to this in article 48,under which a state that is not
areas beyond their jurisdiction [1]. The 1982 world injured may none the less invoke the responsibility of
charter for nature did not directly address another state if the obligation breached is owed to a
liability ,although it called for degraded areas to be group of states ,including that state, and is
rehabilitated and for individuals to have access to established for the protection of a collective
means of redress when their environment has interest ,or the obligation is owed to the international
suffered damage or degradation. [2] community as a whole. [8]
The Rio declaration reflects the limited progress For the extent that there are application ‘erga omnes’
which has occurred since 1972 .it emphasises the obligations relating to an environmental matter there
development of national rules addition to the further therefore exists the potential for any state to initiate
development of international rules for all adverse a complaint or a type of action popularis. [9] In such
effects of environmental damage including, implicitly, circumstances the invoking state can be seen to be
liability for damage to the environment itself. acting not only in its own capacity but also as an
The most elementary mechanism for managing agent on behalf of a group of states such as all parties
compliance with international law is provided by the to a multilateral environmental agreement or the
collection of customary norms relation to state international community as a whole so as to uphold a
responsibility. These secondary or subsidiary rules of customary obligation relating to the global
international law set out the consequences of environment.
unlawful action, including the situations in which While the ILC acceptance in principle of public
states may invoke a breach of international law interest international environmental claims is to be
welcomed, there is limited evidence to suggest that it ‘Gabvikova Nagymaros project case’ [16] , where the
has accepted by states as part of customary ICJ held that a joint development treaty continued to
international law. [10] Even if is ultimately operate not with standing several significant
recognised as part of customary international law a breaches of its provisions by both parties , in any
host of subsidiary issues will need to be addressed in event it is highly questionable whether excluding a
order to ensure that the action popularis is state from an environmental treaty will serve its long
responsive to challenges of environmental term interests. By way of example , the expulsion of
compliance .for instance, a state not directly affected Japan from the 1946 international convention for
by environmental harm would be permitted under regulation whaling for violation the commercial
current rules seek only very limited remedies namely whaling moratorium by its thinly disguised scientific
cessation and satisfaction and pure environmental whaling programmes would probably leave its
harm would attract no obligation of restitution or activities almost wholly unregulated on the
compensation. In such circumstances a claim would international plane. [17] Suspending or termination
be largely without object in an enforcement and treaty membership is therefore unlikely to be an
compliance sense as it would impose no real sanction appropriate response in many environmental
for wrongful behaviour. regimes where the widest participation and the
there is the unresolved question of whether standing greatest degree of cooperation is required to achieve
should be limited to states among or whether the an environmental objective.
general law of state responsibility should be Interstate dispute settlement
developed to reflect practice in some specific A breach of an environmental norm, treaty based or
contexts, most notably human rights regimes, which customary will allow states to pursue a claim through
permits non state actors to invoke state available dispute settlement procedure. With the UN
responsibility. The ILC was not prepared to accord charter prohibition on the use of force and limited
non actors such rights in article 48, which circumstances in which countermeasures may be
substantially weakens the capacity of the articles on deployed these procedures now comprise the
state responsibility to deal with major environmental classical mechanism of enforcement in public
problems of global concern [11] . international law. Article33 of the UN charter
Beyond the limitations deriving from standing rules catalogues the main methods of settlement, namely
more general problems are encountered in deploying negotiation, inquiry, mediation, conciliation,
the law of state responsibility to promote compliance arbitration, judicial settlement and resort to regional
with international environmental law. As with all agencies or arrangements. [18] Each of these has had
systems of liability it is inherently reactive relying some role to play in environmental dispute
upon states to take action where there has been a settlement.
breach of an international obligation ,by which time Consultation and negotiation – the term consultation
permanent damage may already have been caused to is generally used to describe discussions between
the environment . And where damage is relied upon states prior to an activity that may generate a
to make out a claim, it will need to be established dispute. Where there is a likelihood of significant
both that the invoking state has been injured in the interference with shared natural resources it appears
relevant sense and that the injury was caused by the that states are under a positive obligation to engage
delinquent state . This may be exceptionally difficult in preliminary consultation before implementing a
to prove to the requisite legal standard in many project that will have this effect. this was seen in the
situations. These difficulties are further compounded Lake Lanoux Case [19] where the tribunal held that
for complex global environmental problems such as France was required to consult with Spain in stream
climate change, in relation to which it is next to river user. The importance of consultations was also
impossible to identify a causal linkage between the seen in the Fisheries Jurisdiction Cases in which it
actions of a particular state is failing to restrain was held that all sates with an interest in fisheries
greenhouse gas emissions, and damage caused to the surrounding Iceland were under an obligation to
environment of other nations. keep under constant review the marine living
Breach of treaty resources of the waters and to work together to
Many environmental agreements or more general adopt agreed measures for conservation and
regimes that include in their coverage environmental equitable allocation.
matters specify procedures through which parties Where consultations have not taken place or are
may respond to breaches of the regime. [12] where unsuccessful and a dispute does arise then the parties
there is no such procedure or there treaty specific may seek to reach a negotiated settlement. as with
machinery proves ineffective ,states may turn to consultation, negotiation may take a variety of forms
general options presented under the law of and be carried out in many different fora. In almost
treaties ,as codified by the 1969 Vienna convention all environmental instruments negotiation or
on the law of treaties(VCIT), [13] to enforce consultation is presented as the initial method of
obligations applicable under environmental treaties. dispute settlement.
Under the VCIT a party to a multilateral treaty Mediation – In the process of mediation a third party
specially affected by a breach may suspend the takes an active role in the settlement process.
treaty’s operation as between itself and the violating Mediation none the less remains firmly under the
party. [14] Additionally all parties to an control of the parties and is therefore a diplomatic
environmental agreement may, by unanimous procedure that does not lead to a binding
agreement, effectively exclude the defaulting state by determination by a mediator according to legal
suspending or termination the operations of the criteria although many environmental treaties
treaty in whole or in part. [15] both of these present mediation as an option for dispute
enforcement strategies rely on there having been a settlement, it does not appear to have been used in
material breach that is repudiation of the treaty or dealing with any environmental dispute.
violation of a provision of the treaty essential to the Conciliation – conciliation bears many similarities to
accomplishment of its object or purpose . these are mediation, the third party is expected to take a more
onerous criteria to meet as illustrated in the active, formal and neutral role. Much like mediation,
it does not normally lead to a determination that is disputes [23] . However when a broader view is
binding on the parties; however some environmental taken it becomes apparent that there is a strong
instruments require that parties must consider the trend away from inter state dispute settlement
conciliation report in good faith. In addition, systems altogether in favour of treaty based
conciliation usually proceeds according to somewhat institution such as NCPs which are more
flexible criteria rather than involving the exclusively administrative than judicial. The effect of this is to
legal standards to the dispute. introduce a degree of imbalance in international
It may be carried out by a single conciliator a panel of governance arrangements for environmental
conciliators or an international body such as a matters. [24] While there is a range of limitations to
permanent commission established by an any court engaging with environmental issues, courts
environmental agreement. Bodies that principally provide a modality for disinterested dispute
operate as arbitral tribunal may also have the settlement where public recognition. [25] This fact is
capacity to engage in environmental conciliation. [20] recognised the world over in domestic settings,
However, despite its evident potential, conciliation where
does not appear to have been used in an
environmental case. The closest a state has come to
utilising conciliation was in 1995 when New Zealand
reportedly considered invoking the conciliation
procedure in the Biodiversity convention in response
to a fresh round of French nuclear tests in the Pacific.
Commissions of inquiry and fact finding – inquiry and
fact finding are interchangeable terms to describe a
process of independent investigation of disputed
facts and issues. This may involve a variety of
activities including site visits, the examination of
witnesses, and the evaluation of written and oral
submissions made by the parties themselves. Several
examples of inspection procedures are found in
environmental agreements such as the NCP
established by the 1987 Montreal Protocol on
substances that deplete the Ozone layer which
courts are incre
empowers the implementing committee with the
consent of the party involved to undertake
information gathering. [21] Another example is the
system of inspection established by the Madrid
Protocol which provides in article 14 for inspections
of stations and other facilities by designated observes
in order to promote the protection of the Antarctic
environment and dependent and associated
ecosystems, and to ensure compliance with this
protocol. [22]
Fact finding commission are to be composed of
members nominated by the parties, who are in turn
responsible for selecting a chair person. Such
commission may adopt reports by majority vote,
rather than consensus in which findings and
recommendations are made for an equitable solution
of the dispute.A similar system is found in the ILC asingly charged with upholding environmental laws
draft articles on prevention of transbounday harm and regulation. This means that for all the virtues of
from hazardous activities. Where a dispute over new approaches to managerial types of dispute
transboundary harm cannot be resolved through settlement there remains a role for judicial
consultation or negotiation within a period of six determinations of international environmental
months, the articles provide that a party to a dispute question.
may invoke compulsory fact finding procedures to be Conclusion
carried out by an impartial commission. After going through the principal of state
Arbitration and judicial settlement – international responsibility and inter-state dispute settlement the
adjudication by arbitration or judicial settlement is researcher come to the conclusion that state
distinguished from the other dispute settlement responsibility is a well established principle of
mechanisms already described by several important international law, and it’s recognised under article 1
characteristics. The critical differences are found in of the ILC Draft article on state responsibility. No
the role of the third party judges or arbitrators who single instrument sets forth generally applicable
sit above rather than between the parties, the international rules governing state liability for
process of decision making according solely to legal environmental damage, although the international
and not political criteria and the result and effect of law commission and some regional organisation have
decisions binding upon the parties and having a prepared draft instruments to establish rules of
potential influence on the development of the law. general application. The rules concerning the liability
States have preferred to utilise these judicial of states for environmental damage, such as they
mechanisms over other traditional systems of inter exist, must be considered by reference to treaties,
state dispute settlement such as mediation or under customary international law, or bye operation
conciliation and the engagement by a range of courts of general principle of law.
with environmental questions suggests that The rules of international law governing liability for
adjudication is a popular option for dealing with such environmental damage must still be considered to be
in their early phases of development, particularly in
relation to rules of state liability. States remain
reluctant to put in place rules which have the
potential to impose significant constraints on the
conduct of potentially hazardous activities, as well as
being aware of significant costs to the public sector.
And inter state dispute settlement systems tend to be
process oriented, in promoting peaceful relations
regardless of the outcome, rather than goal oriented,
in seeking to achieve a substantive improvement in
compliance.

DISCUSSION MAY 15: