MODULE 2 TREATIES

Legal Resources:

- Executive Order No. 459: Providing for the Guidelines in the Negotiation of International Agreements and its
Ratification (Nov. 25, 1997)

1987 CONSTITUTION

Art. VII, Sec. 21 Section 21. No treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate.

Art. II, Sec. 2 Section 2. The Philippines renounces war as an instrument of national policy,
adopts the generally accepted principles of international law as part of the law of
the land and adheres to the policy of peace, equality, justice, freedom,
cooperation, and amity with all nations.

Art. XVIII, Sec. 25 Section 25. After the expiration in 1991 of the Agreement between the Republic of
the Philippines and the United States of America concerning military bases, foreign
military bases, troops, or facilities shall not be allowed in the Philippines except
under a treaty duly concurred in by the Senate and, when the Congress so requires,
ratified by a majority of the votes cast by the people in a national referendum held
for that purpose, and recognized as a treaty by the other contracting State.

Art. VIII, Sec. 5(2)(a) Section 5. The Supreme Court shall have the following powers:
1. Exercise original jurisdiction over cases affecting ambassadors, other
public ministers and consuls, and over petitions for certiorari, prohibition,
mandamus, quo warranto, and habeas corpus.
2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law
or the Rules of Court may provide, final judgments and orders of lower
courts in:
a. All cases in which the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation is in
question.
Art. VIII, Sec. 4(2) Section 4.
1. The Supreme Court shall be composed of a Chief Justice and fourteen
Associate Justices. It may sit en banc or in its discretion, in division of
three, five, or seven Members. Any vacancy shall be filled within ninety
days from the occurrence thereof.
2. All cases involving the constitutionality of a treaty, international or
executive agreement, or law, which shall be heard by the Supreme Court
en banc, and all other cases which under the Rules of Court are required to
be heard en banc, including those involving the constitutionality,
application, or operation of presidential decrees, proclamations, orders,
instructions, ordinances, and other regulations, shall be decided with the
concurrence of a majority of the Members who actually took part in the
deliberations on the issues in the case and voted thereon.

- Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331 (Jan. 27, 1980)

2.1 Treaty v. Executive Agreements

TREATY

• Under the Vienna Convention on the Law of Treaties (VCLT), a treaty is an international agreement
concluded between states in written form and governed by international law, whether embodied in a
single instrument or in two or more related instruments and whatever its particular designation.

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 • The general rule, though, is that the treaty, to be considered a direct source of international law, must
be concluded by a sizable number of states and thus reflect the will or at least the consensus of the
family of nations.

• The treaty need not be entered into at the outset by a majority of the states forming the international
community. Even if originally agreed upon only by a few states, the treaty may become binding upon
the whole world if it is intended to lay down rules for observance by all and it is subsequently signed or
acceded to by other states which thereby submit to its provisions.

EXECUTIVE AGREEMENTS; COC v Eastern Sea Trading

• Treaties are formal documents which require ratification with the approval of two thirds of the Senate.
• Executive agreements become binding through executive action without the need of a vote by the
Senate or by Congress.

o The right of the Executive to enter into binding agreements without the necessity of
subsequent Congressional approval has been confirmed by long usage.

From the earliest days of our history, we have entered into executive agreements covering such
subjects as commercial and consular relations, most-favored-nation rights, patent rights,
trademark and copyright protection, postal and navigation arrangements and the settlement
of claims. The validity of these has never been seriously questioned by our courts.

• International agreements involving political issues or changes of national policy and those involving
international arrangements of a permanent character usually take the form of treaties.

But international agreements embodying adjustments of detail carrying out well-established national
policies and traditions and those involving arrangements of a more or less temporary nature usually
take the form of executive agreements.

2.2 Functions

2.3 Essential Requisites of a Valid Treaty

2.4 Treaty-making Process; PIMENTEL v EXECUTIVE SEC

• Cruz, in his book on International Law, describes the treaty-making process in this wise:

• The usual steps in the treaty-making process are: negotiation, signature, ratification, and exchange
of the instruments of ratification. The treaty may then be submitted for registration and publication
under the U.N. Charter, although this step is not essential to the validity of the agreement as between
the parties.

• Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his
authorized representatives. These representatives are provided with credentials known as full powers,
which they exhibit to the other negotiators at the start of the formal discussions. It is standard practice
for one of the parties to submit a draft of the proposed treaty which, together with the counter-
proposals, becomes the basis of the subsequent negotiations. The negotiations may be brief or
protracted, depending on the issues involved, and may even "collapse" in case the parties are unable
to come to an agreement on the points under consideration.

If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature.

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 This step is primarily intended as a means of authenticating the instrument and for the purpose of
symbolizing the good faith of the parties; but significantly, it does not indicate the final consent of
the state in cases where ratification of the treaty is required. The document is ordinarily signed in
accordance with the alternat, that is, each of the several negotiators is allowed to sign first on the copy
which he will bring home to his own state.

Ratification, which is the next step, is the formal act by which a state confirms and accepts the
provisions of a treaty concluded by its representatives. The purpose of ratification is to enable the
contracting states to examine the treaty more closely and to give them an opportunity to refuse
to be bound by it should they find it inimical to their interests. It is for this reason that most
treaties are made subject to the scrutiny and consent of a department of the government other
than that which negotiated them.

The last step in the treaty-making process is the exchange of the instruments of ratification, which
usually also signifies the effectivity of the treaty unless a different date has been agreed upon by the
parties. Where ratification is dispensed with and no effectivity clause is embodied in the treaty, the
instrument is deemed effective upon its signature.

a. Accession

• Accession is the act by which a State becomes a party to a treaty already negotiated and signed
by other States, even though it did not take part in its negotiation or initial signature.

o It has the same legal effect as ratification.

o Often used by States that were not original signatories but later wish to join.
o E.G The Philippines acceded to the Convention on the Rights of the Child (CRC) in 1990 (rather
than signing during its opening for signature in 1989).

b. Alternat

• Alternat refers to the custom of alternating the order in which the names, signatures, or titles of
States (or their representatives) appear in a treaty or diplomatic document.

• Each party signs a copy where its own name and representative’s signature appear first.

2.5 Binding Effect of Treaties

a. Reservation, When Allowed

• Definition of reservations
• “Reservation” means a unilateral statement, made by a State or an international organization when
signing, ratifying, formally confirming, accepting, approving or acceding to a treaty or by a State when
making a notification of succession to a treaty, whereby the State or organization purports to exclude
or to modify the legal effect of certain provisions of the treaty in their application to that State or to that
international organization.
• Object of reservation- A reservation purports to exclude or modify the legal effect of certain
provisions of a treaty or of the treaty as a whole with respect to certain specific aspects in their
application to the State or to the international organization which formulates the reservation.

• Instances in which reservations may be formulated- Instances in which a reservation may be

formulated under guideline 1.1 include all the means of expressing consent to be bound by a treaty

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 mentioned in article 11 of the Vienna Conventions of 1969 and 1986 on the law of treaties.

o Vienna Convention on the Law of Treaties (1969), Arts. 2(1)(d), 19–23.

o Allowed unless:
▪ The treaty prohibits reservations;
▪ The treaty only allows specific reservations (and it doesn’t fall under them); or
▪ The reservation is incompatible with the object and purpose of the treaty.

b. Most-Favored Nation Clause

• The most favored nation (MFN) principle is based on the idea that countries should treat all their trade
partners equally—that no one country should be “more favored.” It means no country should give
special treatment to goods or services coming from one particular trading partner.

• The World Trade Organization (WTO) has made the most favored nation principle part of its rules. WTO
members are not allowed to favor any one country with, for example, lower tariffs on particular
products without giving all members the same benefit.

• Countries should also not give preferred treatment to their own products and services—which would
be known as national treatment.

2.6 Observance of Treaties

a. Pacta Tertiis Nec Nocent Nec Prosunt

• The maxim “Pacta Tertis Nec Nocent Nec Prosunt” is a Latin phrase which states that a treaty binds
the parties and only the parties; it does not create obligations for a third state. In other words, treaties
or agreements have a binding effect on consenting parties to the agreement.
• Such a treaty that is binding only on the consenting parties does not create any obligations for the
third parties. Likewise, in accordance with the Indian Contract Act, 1872, there is a binding effect on
the consenting parties to the legal contract and not the others. This theory is a basic rule of customary
international law.
• This idea is enshrined in Article 34 of the Vienna Convention of the Law of Treaties 1969 which states
“A treaty does not create either obligations or rights for a third State without its consent.”

b. Pacta Sunt Servanda

• Pacta sunt servanda ("agreements must be kept.") is a brocard and a fundamental principle of
law which holds that treaties or contracts are binding upon the parties that entered into the treaty or
contract. It is customary international law.
• According to Hans Wehberg, a professor of international law, "few rules for the ordering of Society
have such a deep moral and religious influence" as this principle.
• Under international law, "every treaty in force is binding upon the parties to it and must be performed
by them in good faith." This entitles states party to the Vienna Convention on the Law of Treaties
(signed 23 May 1969 and entered into force on 27 January 1980) to require that obligations instituted by
treaties be honored and to rely on such obligations being honored. This basis of good faith for treaties
implies that a party to a treaty cannot invoke provisions of its municipal (domestic) law as justification
for negligence of its obligations pursuant to the treaty in question.

• The only limits to application of pacta sunt servanda are the peremptory norms of general international
law, which are denominated "jus cogens", i.e. compelling law. The legal principle of clausula rebus sic

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 stantibus in customary international law also permits non-satisfaction of obligations pursuant to
treaty because of a compelling change of circumstances.

c. Doctrine of Rebus Sic Stantibus, Requisites and Limitations

• The phrase ‘Rebus Sic Stantibus’ (things thus standing) is a Latin phrase that refers to a situation where
a contract cannot be withdrawn from or terminated as long as the conditions and circumstances
surrounding the contract have not fundamentally changed.

This has often been used in the form of doctrine in international law, more specifically in treaty law,
and has been a subject of debate and disputes. This doctrine is a part of customary international law
but a provision for this doctrine has been provided in Article 62 of the Vienna Convention on the Law of
Treaties 1969 as well

• The doctrine of Rebus Sic Stantibus provides that a treaty or contract can be withdrawn or terminated,
when there is any fundamental change in the circumstances. Under this doctrine a state can avoid the
principle of Pacta Sunt Servanda, which aims that all the states should be abide by the terms of the
agreement or contract between the states. Article 26 of the Vienna Convention, states that treaties
between the states will be binding and to be implemented in a good faith.

Principle of Rebus Sic Stantibus as Applied to Obligations in Philippine Civil Law

• The principle of rebus sic stantibus is rooted in the idea that contractual obligations are valid only as
long as the essential circumstances surrounding the contract remain the same as when it was
created. In the Philippines, this principle applies as an exception under the doctrine of the pacta sunt
servanda—which holds that agreements must be honored.
• However, when unforeseen and extraordinary changes alter the fundamental circumstances that
formed the basis of an obligation, rebus sic stantibus may allow for the revision or extinguishment of
that obligation.

Conditions for Invocation

• For rebus sic stantibus to apply, the following conditions must be met:
• Extraordinary Events: The change in circumstances must be unforeseen, extraordinary, and beyond the
control of the obligor.
• Fundamental Alteration: The event or circumstance must fundamentally alter the equilibrium of the
contract, making it excessively burdensome or practically impossible to perform the obligation.
• Foreseeability: The extraordinary circumstance should not have been foreseeable at the time the
contract was made, nor should it have been contemplated by the parties.
• Good Faith: The obligor invoking this principle must be acting in good faith, showing that they have
attempted to perform the obligation but have been prevented by the extraordinary change.

LIMITS OF THE DOCTRINE

• Despite its utility, rebus sic stantibus is limited by the principle of pacta sunt servanda, which means
agreements must generally be kept. Courts require compelling evidence before excusing an
obligation, as the judiciary prioritizes contractual stability and certainty. Merely unfavorable economic
conditions, anticipated risks, or foreseeable difficulties do not qualify for the application of rebus sic
stantibus.
•

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2.7 Treaty Interpretation

Interpretation of Treaties

Articles 31 to 33 of the VCLT provide rules on the interpretation of treaties:

• Ordinary Meaning: Treaties must be interpreted according to the ordinary meaning of their terms in
context and in light of the treaty’s object and purpose.

• Context: The context includes the text, preamble, annexes, and any subsequent agreements or
practices.

• Supplementary Means: If the meaning remains ambiguous, preparatory work (travaux préparatoires)
and circumstances of conclusion may be used as supplementary means of interpretation.

2.8 Termination of Treaties

a. Grounds for Invalidating a State’s Consent to be bound by a Treaty

Invalidity of Treaties

A treaty may be considered void or voidable on the following grounds under Articles 46 to 53 of the VCLT:

• Manifest Violation of Internal Law: If the consent of a state was given in violation of a fundamental
rule of internal law.

• Error: If a state entered into a treaty under a fundamental error regarding a fact or situation.

• Fraud or Corruption: If a treaty was induced by fraudulent behavior or corruption.

• Coercion: If consent was obtained through coercion of the state’s representative or the threat of force.

• Conflict with Jus Cogens: A treaty is void if it conflicts with a peremptory norm (jus cogens), which is
a fundamental principle of international law accepted by the international community (e.g.,
prohibitions on genocide, slavery, or torture).

MODULE 3 THE INTERNATIONAL COMMUNITY

• THE INTERNATIONAL COMMUNITY may be described as the body of juridical entities which are
governed by the law of nations. Under the modern concept, it is composed not only of states but also
of such other international persons as the United Nations, the Vatican City, colonies and
dependencies, mandates and trust territories, international administrative bodies, belligerent
communities, and even individuals.
• These are the generally recognized subjects of international law.

3.1 Distinction between Subject and Object of International Law

Subject and Object Distinguished

• A subject of international law is an entity that has rights and responsibilities under that law. It has an
international personality in that it can directly assert rights and be held directly responsible under the
law of nations. In other words, it has the faculty of motivation. By this is meant that it can be a proper
party in transactions involving the application of the law of nations among members of the
international community. A subject of international law must be distinguished from a mere object.

• An object of international law is the person or thing in respect of which rights are held and obligations
assumed by the subject. It is, therefore, not directly governed by the rules of international law. Its rights
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 are received and its responsibilities imposed indirectly, through the instrumentality of an intermediate
agency.

3.3 State

a. Definition and Elements

• From the viewpoint of international law, a state may be defined as a group of people living together in a
definite territory under an independent government organized for political ends and capable of
entering into international relations. As an international person, it may have full or qualified status,
depending upon the degree of its control over its external affairs.
• In any event, the state (or nation) should possess the following elements in order to be regarded as an
international person: (a) a permanent population; (b) a defined territory; (c) government; and (d)
sovereignty or independence. Two other additional elements suggested by some writers, to wit,
recognition by other states and possession of a sufficient degree of civilization, have not yet met with
general acceptance.

b. Classification

• States may generally be classified into independent and dependent states, the former having full
international personality. Independent states are simple or composite, either of which may be
neutralized.
• Dependent states are usually exemplified by the protectorate and the suzerainty and are so called
because they do not have full control of their external relations.

3.4 United Nations (see Cruz book for full)

a. Historical Development of the United Nations

b. The UN Charter
i. Purpose, Principles and Amendment
ii. Principle of Charter Supremacy (Article 103, UN Charter)
iii. Domestic Jurisdiction Clause

c. Membership
i. Classes, Qualifications, Admission, Suspension, Expulsion and Withdrawal

d. Principal Organs
i. Functions, Composition and Jurisdiction
ii. Distinguish between Procedural and Non-Procedural/Substantive Matter
iii. Optional Jurisdiction Clause
iv. Other Subsidiary Organs

3.5 Vatican City ✝

a. The Treaty of Lateran 1929

Case: The Holy See v. Rosario, 238 SCRA 524

1928, Italy and the Vatican concluded the Lateran Treaty "for the purpose of assuring to the Holy See
absolute and visible independence and of guaranteeing to it absolute and indisputable sovereignty in the
field of international relations."

Although Italy has by this treaty recognized "the State of the Vatican under the sovereignty of the Supreme
Pontiff," doubt is expressed by jurists as to its real status in view of its small territory and population and the
apparent impairment of its independence by reason of its proximity to Italy, not to mention the fact that its
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 government is organized more for ecclesiastical than for political purposes. Nonetheless, it cannot be
denied that the Vatican City exercises certain prerogatives of states, such as the treaty-making power and
the right of diplomatic intercourse. Moreover, as Kelsen observes.

3.6 Colonies and Dependencies

• From the viewpoint of international law, a colony or a dependency is part and parcel of the parent
state, through which all its external relations are transacted with other states.
• As such, therefore, it has no legal standing in the family of nations. Nevertheless, such entities have
been allowed on occasion to participate in their own right in international undertakings and granted
practically the status of a sovereign state. It is when acting in this capacity that colonies and
dependencies are considered international persons.

3.7 Mandates and Trust Territories

• The system of mandates was established after the first World War in order to avoid outright annexation
of the underdeveloped territories taken from the defeated powers and to place their administration
under some form of international supervision. Its basic principles have been retained in the more
comprehensive trustee ship system devised by the United Nations Charter.

• Three kinds of trust territories are provided for.:

(a) those held under mandate under the League of Nations;

(b) those territories detached from the defeated states after World War II; and

(c) those voluntarily placed under the system by the states responsible for their ad-ministration."

The terms of trusteeship are agreed upon by the administering authority with the Security Council, in
the case of strategic areas, and with the General Assembly, in the case of non-strategic areas. 18

3.8 Belligerent Communities

• When a portion of the population rises up in arms against the legitimate government of the state, the
upheaval is ordinarily regarded as a merely internal affair, at least during its initial stages.
• The state is held internationally responsible for all injuries caused upon third states by reason of the
disorder, and the members of the uprising are in turn held accountable for their acts un-der the laws of
the legitimate government.

3.9 International Administrative Bodies

• Certain administrative bodies created by agreement among states may be vested with international
personality when two conditions concur, to wit, that their purposes are mainly non-political and that
they are autonomous, i.e., not subject to the control of any state.

• Among these may be mentioned the International Labor Organization, the Food and Agriculture
Organization, the World Health Organization, and the International Monetary Fund, which may enter
into agreements with the United Nations, through the Economic and Social Council, subject to
approval by the General Assembly. Other notable examples are the European Commission of the
Danube and the Central Commission for the Navigation of the Rhine, which both exercise legislative,
administrative and judicial powers directly applicable to individuals.

3.10 Individuals

• Traditional concept regards the individual only as an object of international law who can act only
through the instrumentality of his own state in matters involving others states. If he is injured, for
example, by reason of a wrong imputable to a foreign jurisdiction, he can secure redress only with the

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 assistance and representation of his own state, and not otherwise. The reason is that, in theory, it is his
state whose right-i.e., the right to have its nationals respected by other states-has been violated.
Hence, it is the state of the individual, and not the individual himself, that can be a proper party in the
assertion of a claim for damages.

• Of late, however, the view has grown among many writers that the individual is not merely an object
but a subject of international law.

One argument is that the individual is the basic unit of society, national and international, and must,
therefore, ultimately be governed by the law of this society, including those that are theoretically
binding on states as agents of the individual. Moreover, many precepts of the law of nations are
directly applicable to or for the benefit of the individual, sometimes even independently of the state to
which he may belong.

Thus, it is pointed out that

MODULE 4: STATEHOOD AND RECOGNITION

4.1 Creation and Extinction of State

• It is worth repeating at this point, however, that an entity acquiring the four essential elements of
people, territory, government and sovereignty is regarded in law as having achieved the status of a
state and may, therefore, be treated as an international person.
• The generally accepted methods by which this status is acquired are revolution, unification,
secession, assertion of independence, agreement and attainment of civilization.

EXTINCTION OF A STATE

• Nevertheless, it is error to suppose that a state is immortal, for the fact is that it is possible for it to be
extinguished, or "die" in a legal sense. For example, the population may be completely wiped out by an
epidemic or a thermonuclear explosion; or it may emigrate en masse.
• Its government may be overthrown without being replaced, resulting in anarchy. The state may merge
with another state or its territory may be dismembered or anned by others.

a. Obligation Erga Omnes and Remedies

• In international law, the concept of erga omnes obligations refers to specifically determined
obligations that states have towards the international community as a whole.
• In general legal theory the concept “erga omnes” (Latin: ‘in relation to everyone’) has origins dating as
far back as Roman law and is used to describe obligations or rights towards all.
• In municipal law it has the effect towards all in another, general context.

The concept is very important because in today’s structure of international society, composed of
independent entities giving rise, as a rule, to legal relations on a consensual basis, erga omnes
obligations can further enable the International Court of Justice to go beyond reciprocal relations
among states based on consent in further developing international law on the basis of a natural law
approach. By its very nature this affects the freedom of state consent and the sovereignty of states.

b. Principle of State Continuity

• From the moment of its creation, the state continues as a juristic being notwithstanding changes in its
circum-stances, provided only that they do not result in loss of any of its essential elements. As
Fenwick puts it, "Once its identity as an international person has been fixed and its position in the
international community established, the state continues to be the same corporate person whatever
changes may take place in its international operation and government."¹

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 • Thus, reduction of its population owing to, say, a natural calamity like an earthquake will not cause the
extinction of the state as long as a substantial number of the people survive. Neither will loss of part of
its territory provided that the remainder is still sizable.
• The continuity of state life is also not impaired by changes in the form of government, as when a
republic is converted into a totalitarian regime, or by replacement of the chief of state even through
violent methods. Limitation of sovereignty, as when an independent state becomes a protectorate,
only reduces it to the status of a dependent state but does not entirely deprive it of international
personality.

Cases:

1) Sapphire Case, 11 Wall 164

2) Legal Consequences of the Separation of the Chagos Archipelago from

Mauritius in 1965, ICJ Advisory Opinion of 25 February 2019

4.2 Succession of States and Government

a. Classification, Modes, and Consequences

Case: People v. Perfecto, 43 Phil 887

• State succession takes place when one state assumes the rights and some of the obligations of
another because of certain changes in the condition of the latter. Such succession may be either
universal or partial.

• There is universal succession when a state is annexed to another state or is totally dismembered or
merges with another state to form a new state. In all of these cases, the international personality of the
former state is completely absorbed by the successor.
• Partial succession takes place when a portion of the territory of a state secedes or is ceded to another
or when an independent state becomes a protectorate or a suzerainty or when a dependent state
acquires full sovereignty.

CONSEQUENCES OF SUCCESION

• Upon a change of sovereignty as a result of state succession, the allegiance of the inhabitants of the
predecessor state in the territory affected is transferred to the successor state. Usually, they are also
naturalized en masse, as when Philippine citizenship was conferred on the inhabitants in general of
the Philippine Islands un-der the provisions of the treaty of cession between Spain and the United
States.

AS TO POLITICAL LAWS

• The political laws of the former sovereign are automatically abrogated and may be restored only by a
positive act on the part of the new sovereign. But non-political laws, such as those dealing with familial
relations, are deemed continued unless they are changed by the new sovereign or are contrary to the
institutions of the successor state.

AS TO TREATIES

• Treaties of a political and even commercial nature, as well as treaties of extradition, are also
discontinued, except those dealing with local rights and duties, such as those establishing easements
and servitudes. Sometimes the successor state stipulates in appropriate treaties or by formal

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 proclamation the international commitments it is willing to respect.

AS TO THE RIGHTS OF THE PREDECESSOR

• All the rights of the predecessor state are inherited by the successor state but this is not so where
liabilities are concerned. The successor state, in fact, can determine which liabilities to assume and
which to reject solely on the basis of its own discretion.
• For example, contractual and tort liabilities generally do not devolve on the successor state, although
there certainly is nothing to prevent it from assuming them.

Thus, it was provided in Article XVII, Section 1(3) of the 1935 Constitution that "the debts and liabilities
of the Philippines, its provinces, cities and municipalities which shall be valid and subsisting at the
time of the final and complete withdrawal of the sovereignty of the United States shall be assumed by
the free and independent government of the Philippines." On the other hand, the United States did not
assume the debts pertaining to the Philippine Islands at the time of its cession under the Treaty of
Paris of December 10, 1898.

• People v. Perfecto, 43 Phil. 887.

Succession of Governments-

• One government replaces another either peacefully or by violent methods. As far as the rights of
the predecessor government are concerned, they are inherited in toto by the successor
government. Regarding the obligations, distinction is made according to the manner of the
establishment of the new government.
• The rule is that where the new government was organized by virtue of a constitutional reform duly
ratified by a plebiscite, the obligations of the replaced government are also completely assumed
by the former.
• Conversely, where the new government was established through violence, as by a revolution, it
may lawfully reject the purely personal or political obligations of the predecessor government but
not those contracted by it in the course of official business.

b. Doctrines of Succession

4.3 Kinds of Recognition

• Recognition may be either express or implied.

• Express recognition may be verbal or in writing. It may be extended through a formal proclamation or
announcement, a stipulation in a treaty, a letter or telegram, or on the occasion of an official call or
conference.
• For example, the state of Israel and its provisional government were recognized by the United States in
a statement re-leased to the press by President Harry S. Truman on May 14, 1948. The Communist
government of Russia, on the other hand, was recognized by Italy in a treaty concluded between the
two countries in 1924. A simple telegram sufficed to extend American recognition to Poland after
World War I.

• Recognition is implied when the recognizing state enters into official intercourse with the new member
by exchanging diplomatic representatives with it, concluding with it a bipartite treaty dealing
comprehensively with their relations in general or, as suggested by some writers, acknowledging its
flag or otherwise entering into formal relations with it. In the case of a belligerent community,
recognition is implied when the legitimate government blockades a port held by the former or when
other states observe neutrality in the conflict.

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a. Theories of Recognition

• The recognition of a new entity as a sovereign state is based on two main theories:

Consecutive Theory

• According to the sequential theory of state recognition in international law, a state must be
acknowledged as a sovereign by all other states in order for it to be regarded as an international
person. According to the subsequent conception of state recognition in international law, a State only
acquires the status of an international person and becomes subject to international law after being
recognized. Therefore, unless an entity is recognized by the existing States, even though it exhibits all
the qualities of a state, it does not acquire the status of an international person.

Criticism of the consecutive theory of state recognition in International Law

• This theory has been criticized by several jurists. Few of the criticisms of this theory are:
• This theory is criticized because unless a state is recognized by other existing states, rights, duties and
obligations of statehood community under International Law is not applicable to it.
• This theory also leads to confusion when a new state is acknowledged and recognized by some of the
existing states and not recognized by other states.

Declaratory Theory

• In support of the Declaratory Theory of Statehood, Wigner, Hall, Fisher, and Brierly are the leading
figures. This theory holds that any new state can form without the approval of any current states.
According to Article 3 of the Montevideo Conference from 1933, this hypothesis has been established.
According to this theory, a new state’s existence is independent of whether or not it is acknowledged
by an older one. Under international law, a new state has the right to preserve its integrity and
independence even before being acknowledged by other governments.

Criticism of the declaratory theory of state recognition in International Law

• This declaratory theory of state recognition in International Law has been criticized on the ground that
this theory alone cannot be applicable for recognition of a state. When a state having essential
characteristics comes into existence as a state, it can exercise international rights and obligations and
here comes the application of declaratory theory, but when other states acknowledge its existence
and the state gets the legal rights of recognition, the consecutive theory comes into play.

4.4 Recognition of States

• The recognition of a new state is the free act by which one or more states acknowledge the existence
on a definite territory of a human society politically organized, independent of any existing state, and
capable of observing the obligations of international law, and by which they mani-fest therefore their
intention to consider it a member of the international community."

• The recognition of a new state does not present much difficulty when it is established through peaceful
methods, such as by plebiscite or agreement

4.5 Recognition of Government

• The recognition of the new government of a state which has been already recognized is the free act by
which one or several states acknowledge that a person or a group of persons is capable of binding the
state which they claim to represent and witness their intention to enter into relations with them.

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 • As in the case of the recognition of states, the recognition of governments is usually decided mainly on
the basis of political considerations. Premature recognition may lead to international
misunderstanding if the new government has been established through violent methods. Peaceful
change of government does not pose any problem, of course. But it is different where the former
government is replaced by force and the new government thereafter claims the right to represent the
state to the exclusion of the other.
• In a case like this, the de jure government might have cause for complaint if recognition is extended by
other governments to the de facto government.

B. The three kinds of de facto governments are the following:

• (1) That which is established by the inhabitants who rise in revolt against and depose the legitimate
regime. Example: the Commonwealth established by Oliver Cromwell which supplanted the monarchy
under Charles I of England.

• (2) That which is established in the course of war by the invading forces of one belligerent in the
territory of the other belligerent, the government of which is also dis-placed. Example: the Japanese
occupation government in the Philippines which replaced the Commonwealth government during
World War II.

• (3) That which is established by the inhabitants of a state who secede therefrom without overthrowing
its government. Example: the Confederate government during the American civil war which, however,
did not seek to depose the Union government."

• Under the Tobar or Wilson principle, which was ex-pressed in a treaty of the Central American
Republics in 1907 at the suggestion of Foreign Minister Tobar of Ecuador and reiterated in 1913 by
President Woodrow Wilson of the United States, recognition shall not be extended to any government
established by revolution, civil war, coup d'etat or other forms of internal violence until the freely

c. Principles/Doctrines of Recognition

d. Requirements for Recognition of Government

e. Recognition De Jure v. Recognition De Facto

(1) Recognition de jure is relatively permanent; recognition de facto is provisional.

(2) Recognition de jure vests title in the government to its properties abroad; recognition de facto does
not.

(3) Recognition de jure brings about full diplomatic relations; recognition de facto is limited to certain
juridical relations.

4.6 Effects of Recognition of States and Government

• Following are the consequences of the recognition of states and governments:

(1) Full diplomatic relations are established except where the government recognized is de facto."

(2) The recognized state or government acquires the right to sue in the courts of the recognizing state.

Cases:

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1) Russian Socialist Federated Soviet Republic v. Cibrario, New York Court of Appeals, 1923, 235 NY 255

2) Banco Nacional de Cuba v. Sabatino, 376 US 398

3) Oetjen v. Central Leather Co., 246 US. 297

4.7 Recognition of Belligerency, Conditions

• A belligerency exists when the inhabitants of a state rise up in arms for the purpose of overthrowing the
legitimate government.

• It is to be distinguished from an insurgency in certain important respects. In the first place, insurgency
is the initial stage of a belligerency, which is more serious and widespread. In the second place,
insurgency is directed by military authorities whereas belligerency is under a civil government. Finally,
insurgency is usually not recognized whereas there are settled rules regarding the recognition of
belligerency.

• Generally speaking, a belligerency is supposed to be a merely internal affair of the state and does not
produce much international repercussion. The relations between the state and other states continue
to be governed by the laws of peace and the relations between the forces of the legitimate government
and those of the rebel community continue to be regulated by their municipal law. Accordingly, any
damage caused by the rebels to a third state is imputable to the legitimate government, and the
rebels , when captured, will be prosecuted as ordinary criminals. Neither the legitimate nor the rebel
government is allowed to exercise belligerent rights as against other states, which are entitled to
consider them as belonging to one and the same state.

• But when the conflict widens and aggravates, it may be necessary, for practical reasons, to consider
the formal recognition of the belligerent community.

Such recognition is usually extended only where the following conditions are established:

(1) There must be an organized civil government directing the rebel forces.

(2) The rebels must occupy a substantial portion of the territory of the state.

(3) The conflict between the legitimate government and the rebels must be serious, making the
outcome uncertain.

(4) The rebels must be willing and able to observe the laws of war. 19

4.8 Consequences of Recognition of Belligerency

• Upon recognition by the parent state, the belligerent community is considered a separate state for
purposes of the conflict it is waging against the legitimate government.
• Their relations with each other shall, thenceforth and for the duration of the hostilities, be governed by
the laws of war, and their relations with other states shall be subject to the laws of neutrality

• Thus, the troops of either belligerent, when captured, shall be treated as prisoners of war, and the
parent state shall no longer be liable for any damage that may be caused to third states by the rebel
government. Both belligerents may exercise the right of visit and search upon neutral merchant
vessels. The rebel government, equally with the legitimate government, shall be entitled to full war
status as regards all other states and may establish blockades, maintain prize courts and take other
allowable war measures.

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• Where recognition is extended by third states, the above consequences are effective only as to them
and do not bind other states not extending recognition. It is only where the recognition is made by the
parent state that the effects thereof become general and are legally applicable to all other states."

MODULE 5 : FUNDAMENTAL RIGHTS OF STATES

5.1 Right of Existence and Self-Defense

• ONCE A STATE comes into being, it is invested with certain rights described as fundamental. These
are the right of existence and self-defense, the right of sovereignty and independence, the right of
equality, the right of property and jurisdiction, and the right of legation or diplomatic intercourse.

• The most important of these rights is the right of existence and self-defense. It is considered the
most comprehensive of the attributes of the state because all its other rights are supposed to flow
or be derived from it.
• By virtue of this right, the state may take such measures, including the use of force, as may be
necessary to resist any danger to its existence. Such action being the exercise of an inherent right,
it does not de-pend for its validity on the previous recognition of the state asserting it or on the
consent of other states.

a. Requisites of Exercise of the Right of Self Defense

b. Article 51 of the UN Charter

• In Article 51 of the Charter of the United Nations, it is provided that-

• Nothing in the present Charter shall impair the inherent right of individual or collective self-
defense if any armed attack occurs against a member of the United Nations, until the Security
Council has taken the measures necessary for the maintenance of inter-national peace and
security. xxx

• The presence of an "armed attack" to justify the exercise of the right of self-defense under this
article suggests that forcible measures may be taken by a state only in the face of "a necessity of
self-defense instant, overwhelming and leaving no choice of means and no moment for
deliberation."

• Mere apprehended danger or any direct threat to the state does not, by itself alone, war-rant the
employment by that state of any force against a suspected or potential enemy. The right may be
resorted to only upon a clear showing of a grave and actual danger to the security of the state, and,
furthermore, the self-defensive measures must be "limited by the necessity and kept clearly within
it.

c. Aggression (UN General Assembly)

i. Definition

Article 1

• Aggression is the use of armed force by a State against the sovereignty, territorial integrity or
political independence of another State, or in any other manner inconsistent with the Charter of the
United Nations, as set out in this Definition.

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 Article 2

• The first use of armed forces by a State in contravention of the Charter shall constitute prima
facie evidence of an act of aggression although the Security Council may, in conformity with the Charter,
conclude that a determination that an act of aggression has been committed would not be justified in
the light of other relevant circumstances, including the fact that the acts concerned or their
consequences are not of sufficient gravity.

ii. Acts of Aggression

Article 3

Any of the following acts, regardless of a declaration of war shall, subject to and in accordance with the
provisions of Article 2, qualify as an act of aggression:

(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military
occupation, however temporary, resulting from such invasion or attack or any annexation by the use of
force of the territory of another State or part thereof;

(b) Bombardment by the armed forces of a State against the territory of another State;

(c) The blockade of the ports or coasts of a State by the armed forces of another State;

(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of
another State;

(e) The use of armed forces of one State which are within the territory of another State with the
agreement of the receiving State, in contravention of the conditions provided for in the agreement or any
extension of their presence in such territory beyond the termination of the agreement;

(f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be
used by that other State for perpetrating an act of aggression against a third State;

(g) The sending by or on behalf of a State of armed force against another State of such gravity as to
amount to the acts listed above, or its substantial involvement therein.

5.2 Right of Independence

• The right to independence is a natural aspiration of peoples that has, albeit only lately, received
international recognition. Particularly during the period following the last World War, a resurgent
spirit of nationalism and the principle of self-determination gave unprecedented impetus to the
attainment of freedom by a number of colonies and their subsequent admission to the
international community. It may be said that this trend had its auspicious beginning with the
establishment of the Republic of the Philippines in 1946 and its ready recognition by the family of
nations.

a. Sovereignty and Independence

• SOVEREIGNTY is the supreme, uncontrollable power inherent in a state by which that state is
governed. It is "the supreme power of the State to command and enforce obedience, the power to
which, legally speaking, all interests are practically subject and all wills subordinate." In
international law, it is this attribute that enables the state to make its own decision vis-à-vis other
states and vests it with competence to enter into relations and agreements with them.

• Sovereignty has two aspects: internal and external. Internal sovereignty refers to the power of
the state to direct its domestic affairs, as when it establishes its government, enacts laws for
observance within its territory, or adopts economic policies. External sovereignty, on the other

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 hand, signifies the freedom of the state to control its own foreign affairs, as when it concludes
treaties, makes war or peace, ce, and maintains diplomatic and commercial relations. External
sovereignty is more often referred to as independence.

b. Intervention

• Intervention may be defined as an act by which a state interferes with the domestic or foreign
affairs of an-other state or states through the employment of force or threat of force. Such force
may be physical or, in the pre-sent state of world affairs, even political or economic. Lacking such
pressure, the involvement of a state in the affairs of another, even if unsolicited, cannot be
considered intervention.

i. Grounds for Intervention

ii. International Declarations Against Intervention

iii. Drago Doctrine and its antecedents, Porter Resolution and other doctrines

• In 1902, Great Britain, Italy and Germany established a blockade against Venezuela in order to
force it to comply with certain contractual and other obligations owing to the blockading powers.
• This action was the subject of universal disapprobation and led to the formulation by the Foreign
Minister of Argentina of what is now popularly known as the Drago doctrine.
• This doctrine was embodied in the Hague Convention of 1907 through the provision that "the
Contracting Powers agree not to have recourse to armed force for the recovery of contract debts
claimed from the government of one country by the government of another country as being due to
its nationals."
• The force of this rule was later dissipated by the Porter Resolution, under which intervention was
permit-ted if the debtor state refused an offer to arbitrate the creditor's claim, or having agreed to
arbitrate, prevented agreement on the compromis, or having agreed thereto, refused to abide by
the award of the arbitrator. Nevertheless, it is doubtful if this qualification can be sustained now in
light of the outlawry of force by the Charter of the United Nations.

5.3 Right of Equality

a. Article 2, UN Charter

• IN ARTICLE 2 of the Charter of the United Nations, it is announced that "the Organization is based
on the principle of the sovereign equality of all its members."
• This is a recognition of what has been described as "an early premise of international law." The
principle is more fully fleshed out in the provision of the Montevideo Convention of 1933 that
"states are juridically equal, enjoy the same rights, and have equal capacity in their exercise. The
rights of each one do not depend upon the power which it possesses to assure its exercise, but
upon the simple fact of its existence as a person under international law."

b. International Agreements which recognize Right of Equality

c. Rule of Par in Parem Non Habet Imperium

• Accordingly, all members of the United Nations have each one vote in the General Assembly, all
votes having equal weight, and are generally eligible for positions in the various organs of the
United Nations. Every state has the right to the protection of its nationals, to make use of the open
seas, or to acquire or dispose of territory. When involved in war, a small state like the Malagasy
Republic would have the same right as China or the United States to punish the carriage of contra-
band or to have its captured combatants treated as prisoners of war.

• Under the rule of par in parem non habet imperium, even the strongest state cannot assume
jurisdiction over another state, no matter how weak, or question the validity of its acts in so far as
they are made to take effect within its own territory.
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• All states, including the smallest and the least influential, are also entitled to their dignity and the
protection of their honor and reputation.

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