PUBLIC INTERNATIONAL LAW Why do colonizers impose government systems on

Review Notes for MIdterm Exam colonized states?

(Based on the Syllabus and Lectures of
- To set guidelines and rules for
Atty. Concepcion Bartolata) international trade
by Jenny Grace M. Mendoza
JD 2 – Medialdea Why do colonizers impose their government
Rizal Memorial Colleges-School of Law systems on colonized states?

II. SUBJECTS OF INTERNATIONAL LAW - To maintain order and monopolize the

political system
C. Colonies and Dependencies - For economic gain and for the opportunity
to make money and expand the market
What is a colony? - To prepare for post-colonial situations

- A dependent political community Why is public international law seen as necessary?

consisting of a number of citizens of the
same country who have migrated therefrom - To govern the relationships between
to inhabit another country but remain a states
subject of the mother state
- Governed by a foreign power [Atty. Ching: That (imposition of colonizing state's
- No power of self-governance political system) is necessary if you view it from the
point of view of relationship with other states. How
What is a dependency? can you actually perpetuate such economic growth
without you actually exercising a relationship with
- May have some degree of local autonomy other states? In order for that to happen, you need
but still relies on a parent state for certain to have a system. In order for you to actually
governance functions impose a system on the colonized states, by
- A territory distinct from the country in imposing your own structure.)
which the supreme sovereign power
resides, but belongs rightfully to it, subject D. Mandates and Trust Territories
to the laws and regulations which the
sovereign may prescribe What is a mandate?

Distinctions between a colony and a dependency - - A territory administered by a power on

PA behalf of the League of Nations, aimed at
preparing the state for self-governance
1. Level of political control
- Established after World War 1
2. Autonomy afforded to the inhabitants
What is a trust territory?
What is the main compelling reason for
colonialization?
- Established by the UN after World War 2
- Slavery due to lack of technological - Intended to promote the well-being of the
advancement inhabitants and lead it towards self-
- Labor is crucial in all of the colonizer’s determination
undertakings - UN provides guidance
- Totally dependent on the trustee for self-
Impact of Colonization: governance
- As to the point of view of the colonies— the
E. United Nations
realization of national security
- As to the colonizers — economic gain;
What does the UN protect in a mandate system?
exploitation of natural resources
- Security

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JMendoza, JD 2 - Medialdea
 Why did the UN need such a system in the first - Every treaty in force is binding upon the parties
place? to it and must be performed by them in good
faith.
- The UN itself has collective security as its 3. Settlement of international disputes by peaceful
core means – ICJ
- The mandate system was put in place as an 4. Refrain from threat or use of force upon the
attempt to stop the cycle of war and fighting territorial integrity or political independence
within the territory itself 5. Cooperation in international relations
- If the territory itself does not have a 6. Applicability to non-member states
government in place, it will result in unrest. 7. Domestic jurisdiction clause
The mandate system was put in place in - As long as the matter remains internal, the
order for another territory to oversee same cannot be the subject of intervention by the
another territory while it is under the UN.
process of having its own self-determination
EXCEPTIONS
When violations permitted are covered by the a. Where internal conflict aggravates into a threat
provisions of the UN Charter in municipal laws, to or an actual breach of international peace
what is more supreme? and security
b. Parties voluntarily invoke and submit to the
- It is not required under the Doctrine of jurisdiction of the UN for the settlement of the
Pacta Sunt Servanda that the very rules dispute
that are incorporated in the framework of
the UN Charter be incorporated by the What are the types of membership in the UN?
states by either incorporation or
transformation of the law. This means - Original or elective
basically that the rules within the UN itself - Original members: 51
are already within the municipal - Current members: 193
framework.
Bases of membership: - SPACW
[Atty. Ching: If you implement something within the
municipal level, there are intricacies that are 1. member must be a State
included in view of the customs of the state which 2. must be peace-loving
is variable. It varies from state to state.] 3. must accept the obligations of the Charter.
4. must be able to carry out these obligations.
WHY? 5. must be willing to carry out these
obligations.
- You cannot expect the municipal law which
incorporated or transformed the UN or the When is such a state deemed admitted?
international law to be exactly the same
- You cannot disregard all of the principles, - Decision of 2/3 of those present and
all of the guidelines that are under the UN voting in the General Assembly upon
Charter, under these treaties, these recommendation of at least nine
agreements, these conventions, because of (including all the permanent) members of
fact that all of these are incorporated into the Security Council
our municipal law. Municipal law is
superior. Suspension:

Fundamental Principles of the UN - The same vote required as in the

- Article 2, UN Charter admission

1. The Right of Equality Valid ground for suspension

2. Pacta sunt servanda – good faith cooperation - Repeated disobedience
- Pacts must be respected
- Codified in Article 26, Vienna Convention of
the Law of Treaties

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 Effects of Suspension non-permanent members of the Security
Council and all members of the EcoSoc;
1. Prevent it from participating in meetings of and (5) Constituent – admission of
the General Assembly. members and the amendment of the
2. Prevented from being elected or continuing Charter
to serve in the Security Council or the - It must be noted that the GA is not a
Trusteeship Council legislative body. It can only make
3. Nationals of the suspended member may, recommendations and not binding rules
however, continue serving in the Secretariat
and the ICJ 2. Security Council

To lift the suspension: - Key organ in the maintenance of

international peace and security
- A qualified majority vote of the Security - Composition: (1) China, France, Russia,
Council is needed US, and UK; (2) 10 elective members,
elected for a 2-year term by the GA (5 from
Do these members hold the same voting power? African and Asian States, 2 from Latin
American States, 2 from Western European
- In the General Assembly, all member states and other States, and 1 from Easter
hold equal voting power, with each state European States)
having one vote. However, in the Security - Functions: (1) primary responsibility is to
Council, there is a distinction: maintain international peace and security;
(2) investigate disputes and call disputants
Permanent Members: The 5 permanent to settle their differences through peaceful
members (P5) have veto power, meaning means; (3) recommend methods of
any one of them can block a resolution or adjustment of disputes; (4) determine the
decision. existence of threats to peace, breach of
peace, acts of aggression, and make
Non-Permanent Members: The 10 non- appropriate recommendations; and (5)
permanent members do not have veto undertake preventive and enforcement
power and their votes are counted equally. actions

What is the nature of the membership in the UN? 3. Economic and Social Council
- Voluntary
- Composition: 54 members elected by the
When may a member-state withdraw its GA for a 3-year term
membership? - Shall exert efforts toward higher standards
of living, conditions of economic and social
- The state decides to withdraw progress and development, etc.
- Decisions are reached by a simple majority
Principal Organs of the UN vote

1. General Assembly 4. Trusteeship Council

- consists of all the members of the UN, each - Charged with the duty of assisting the
of which is entitled to send not more than 5 Security Council and the General Assembly
reps and 5 alternates in the administration of the International
- Functions - DSFEC: (1) Deliberative – Trusteeship System
initiating studies and making - Composition: (1) members of the UN
recommendations for the development of administering trust territories; (2) permanent
international laws, etc.; (2) Supervisory – members of the SC not administering trust
includes receiving and considering annual territories; and (3) as many other members
and special reports from other organs of the elected by the GA
UN; (3) Financial – consideration and
approval of budget; (4) Elective – election of

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 5. Secretariat 3. Technical Assistance Board

- The chief administrative organ of the UN Does the UN have the capacity to make law?
- Headed by the Secretary General who is
chosen by the GA upon recommendation by The UN has a limited capacity to make
the SC international law, though not in the same way as
- The SG is the highest rep of the UN sovereign states.
- Note: The SG and his staff are international
civil servants and they cannot receive The UN's law-making capacity stems from its
instructions from any government or source charter, particularly Article 13, which empowers
outside the UN the General Assembly to initiate studies and
make recommendations for the progressive
6. International Court of Justice development of international law and its
codification.
- The principal judicial organ of the UN
- The successor of the Permanent Court of Additionally, the International Law Commission
International Justice of the League of works on the codification and progressive
Nations development of international law. So the UN
- Composition: 15 Members; no two of whom contributes to international law-making through
may be nationals of the same State; various mechanisms or means:
Elected for 9 years and may be re-elected
- Function: To decide international legal 1. General Assembly resolutions, which, while
disputes submitted to it by States in not binding, can contribute to the formation
accordance with International Law of customary international law if widely
- Membership: Shall be independent judges, accepted and followed by states.
elected regardless of their nationality from 2. Drafting and promoting international studies
among persons of high moral character, or treaties;
who possesses the qualifications required 3. The Security Council resolutions, which are
in their respective countries for appointment binding on member states under the UN
to the highest judicial offices, or are Charter;
jurisconsults of recognized competence in 4. The work of the International Law
International Law Commission in preparing draft articles on
various aspects of international law, which
How does the ICJ acquire jurisdiction? - The ICJ may later form the basis of international
acquires jurisdiction when: conventions.

1. The State parties submit themselves to its The UN can make laws.
jurisdiction
2. Through consent via treaties and As to the answers that the capacity of the UN is
conventions suppletory only to the lawmaking powers of the
3. Optional Jurisdiction Clause sovereign states, then it is actually also true.
4. Special Agreement – state parties jointly However, you have to recognize that it being
submit to the ICJ via compromis suppletory in nature, it means that it still has some
5. Forum prorogatum – defendant state after sort of power.
institution of proceeding assents to the case
filed UN’s power to make laws

Subsidiary Organs The United Nations does not make law in the
1. Military Staff Committee usual sense that national legislatures do it. But
2. International Law Commission the UN has the capacity to make decisions that
3. Commission on Human Rights have the force and effect of laws such as:

Specialized Agencies 1. General Assembly resolutions, which

1. World Health Organization contribute to the development of
2. International Monetary Fund customary international law.

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 2. The UN Charter itself is sometimes called another state or within its own territory, such as in
as the mega constitution of the the case of a civil war, for example.
international community of states.
3. The General Assembly may also make And this describes the legal status of participants in
interpretations of what the member states a war under international law.
perceive to be laws because of the
imposition of treaties. It may also propose Why is the concept of belligerent states important?
treaties which, when widely accepted by
member states, will also become laws This concept is important because belligerency can
among themselves. be recognized under international law, and this
4. In the case of the Security Council, under gives rise to certain rights and obligations for the
Article 48 of the UN Charter, it has a states involved in such a war. And when a conflict
binding effect on all the member states is formally recognized as a state of belligerency,
concerned. then the international law now applies to the
5. The ICJ, the International Court of Justice, conduct of the belligerent parties, which includes
although it does not follow or implement international humanitarian laws and other laws of
the stare decisis principle, but its war.
resolutions may also be binding among
the states or parties to the case before it. What is the aim of being protected by all of these?
Its decisions may also be the basis in the
development, later on, of customary laws. The ultimate purpose or goal of this recognition is
And lastly, the International Law to maintain diplomatic relations between states.
Commission, which also makes
suggestions or proposes the codification More generally speaking, it is to preserve
and the development of customary laws. international relations, because otherwise, all of
these other purposes that you have enumerated
So, these instances are the ways that the UN may will not be made possible.
actually make laws or come up with decisions that
have the force and effect of laws. If you're talking about peace and order, so who
would help you implement such?
Who makes these laws?
If a state is not recognized as belligerent, then
The member-states, having their membership other states would not have any sort of right to
being voluntary in nature, then their decision to meddle in the affairs of such a state.
bind themselves by the rules with which they have
actually chosen to bind themselves are actually The ultimate aim protected by the recognition of
proof of their consent. belligerent states is the international relations
between states and to ensure the application of
What is true law in relation to Public International international humanitarian law or laws of war to
Law? conflicts that may not involve fully recognized
states, thereby providing protections to combatants
True law is just, honest, useful, relatively and civilians.
permanent, obligatory, and promulgated.
International law is true law because even though Because otherwise, other states would not have
there's a question about its enforceability, any capacity to participate in the protection of the
enforceability is irrelevant when we determine if the community in conflict.
international law is true law.
Enforcement is not synonymous with law. If they take part and that state actually is not
International law is enforceable even though it declared to be under belligerency, then what are
lacks a police force. the consequences to the state that helped? They
would be assumed to have taken a side.
F. Belligerent States
And that opens up doors for them to experience
Nations or political entities that are engaged in an conflict themselves.
armed conflict or war or hostilities either against

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 Required conditions to be declared as belligerent consequences of that fact, namely the usual
courtesies of international intercourse.
1. It is recognized as a military force. Being a
military force, there's a command structure. 3. Recognition of Government
The level of fight, there's a certain threshold
for that. They have occupied a certain - An acknowledgment that it is in effective
territory. control of the State.

2. It observes the laws of war in the conduct of - Not dependent upon the constitutionality of
hostilities. the government or its legitimacy under its
own domestic laws, but solely on its
3. It believes that it is fighting as a substitute effectiveness.
for the state in defense of its right. It
believes in good faith. a. Kinds of De Facto Government

Who are considered as belligerents? i. GOVERNMENT DE FACTO IN A

PROPER LEGAL SENSE - Government
- A belligerent is someone who takes up that gets possession and control of, or
arms. usurps, by force or by the voice of the
majority
III. RECOGNITION
ii. GOVERNMENT OF PARAMOUNT
1. Kinds of Recognition FORCE - Established and maintained by
military forces who invade and occupy a
1. Express – it is definite and explicit territory of the enemy in the course of
statement is made to that effect. war
2. Tacit or implied – when the older members
enter into official intercourse with the new iii. INSURRECTION - Established as an
member by sending diplomatic independent government by the
representatives to it, concluding treaties with inhabitants of a country who rise in
it, or otherwise entering into formal relations insurrection against a parent State
with it.
b. Principles/Doctrines of Recognition
a. Theories of Recognition
i. Wilson / Tobar Doctrine - This
1. Constitutive theory – this theory holds that precludes recognition of government
a state only becomes a state through established by revolution, civil war, coup
recognition by other states. d’etat or other forms of internal violence
until the freely elected representatives of
2. Declaratory theory – a state exists the people have organized a
independently of recognition. So recognition constitutional government.
by other states is merely an
acknowledgement of an existing fact. ii. Kelsen Doctrine - A state violates
international law and thus infringes upon
2. Recognition of States the rights of other states if it recognizes
a state community which does not fulfill
- The willingness to deal with another State the requirements of international law.
or government representing the State as a
member of the international community. iii. Betancourt Doctrine - Antipathy for the
non-democratic rule, which denied
- Its primary function is to acknowledge as a diplomatic recognition to any regime,
fact something which has hitherto been right or left, which came to power by
uncertain, namely the independence of a military force.
State, and to declare the recognizing
State’s readiness to accept the normal

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 iv. Lauterpacht Doctrine - This precludes 4. Effects of Recognition of States and
that the recognition of an entity which is Government
not legally a state is wrong because it
constitutes an abuse of the power of i. Recognition of a New State – bears upon
recognition. It acknowledges a the admission of a new political group to
community, which is not, in law, membership in the international community
independent and which does not
therefore fulfill the essential ii. Recognition of Government – involves a
requirements of statehood as an decision of whether a particular government
independent state. It is, accordingly, a claiming to represent the political group
recognition which an international seeking recognition as a State is actually
tribunal would declare not only to entitled to represent it.
constitute a wrong but probably also be
in itself invalid. iii. Right to possession of properties of
predecessor state for the recognizing state.
v. Stimson Doctrine - This precludes
recognition of any government iv. All acts of the recognized state or
established as a result of external government are validated retroactively,
aggression. preventing the recognizing state from
passing upon their legality in its own courts
vi. Estrada Doctrine - Dealing or not
dealing with the government established v. Full diplomatic relations
through a political upheaval is not a
judgment of the legitimacy of said vi. Right to sue in Courts of recognizing state
government.

c. Requirements for Recognition of Government CASES:

i. Effective control of its territory 1. Russian Socialist Federated Soviet

ii. Legitimacy doctrine (democratic Republic v. Cibrario, New York Court of
legitimacy) Appeals, 1923, 235 NY 255

d. Recognition De Jure v. Recognition De Since the Russian Socialist Federated

Facto Soviet Republic is not yet recognized by the
e. United States as a legitimate government,
Recognition De Jure no comity exists, and thus, its not right to
sue in the US soil is not afforded.
- Lawfully in power even though it retains
little actual power 2. Banco Nacional de Cuba v. Sabatino, 376
- Relatively permanent US 398
- It vests title to properties of government
abroad The Court emphasized that a breach of
- Brings about full diplomatic relations diplomatic relations, in itself, does not have
the effect of withdrawing a foreign
Recognition De Facto government’s right to access U.S. courts. In
the absence of war or other formal
- Impliedly a government that is in control but hostilities, a mere diplomatic breakdown
illegally so does not strip a recognized foreign
- Provisional government of its legal standing.
- It does not vest title to properties of
government abroad 3. Oetjen v. Central Leather Co., 246 US.
- Limited to certain juridical relations 297

The case addressed the implications of the

recognition of governments under

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 international law and established that such application of the act of state doctrine, it
recognition impacts the validity and bears stressing that the Sandiganbayan will
enforcement of contracts. The ruling not examine and review the freeze orders of
highlighted that the U.S. courts are to honor the concerned Swiss officials.
the political decisions made by the
executive branch regarding the recognition 3. Baer v. Tizon, 57 SCRA 1
of foreign governments.
The doctrine of state immunity is not limited
a. Doctrine of State Immunity to cases which would result in a pecuniary
charge against the, sovereign or would
- As a consequence of independence, require the doing of an affirmative act by it.
territorial supremacy and equality, a State Prevention of a sovereign from doing an
enjoys immunity from the exercise of affirmative act pertaining directly and
jurisdiction (legislative, executive, judicial) immediately to the most important public
by another State, unless it has given function of any government — defense of
consent, waived its immunity, or voluntarily the state is — equally as untenable as
submitted to the jurisdiction of the court requiring it to do an affirmative act.'
concerned.
- Based on the principle of par in parem non 4. Syquia v. Almeda Lopez, 84 Phil. 312
habet imperium (equals have no
sovereignty over each other) and the Where the judgment in such a case would
principle of non-intervention result not only in the recovery of possession
of the property in favor of said citizen but
CASES: also in a charge against or financial liability
to the Government, then the suit should be
1. Underhill v. Hernandez, 168 U.S. 250 regarded as one against the government
itself, and, consequently, it cannot prosper
If the party seeking to dislodge the existing or be validly entertained by the courts
government succeeds, and the except with the consent of said
independence of the government it has set Government.
up is recognized, then the acts of such a
government, from the commencement of its 5. U.S.A. v. Guinto, G.R. No. 76607
existence, are regarded as those of an
independent nation. The Supreme Court concluded by
emphasizing the need for mutual
2. PCGG v. Sandiganbayan, 530 SCRA 13 accommodation and respect in applying the
doctrine of state immunity to maintain good
The parameters of the use of the act of relations between the Philippines and the
state doctrine were clarified in Banco United States.
Nacional de Cuba v. Sabbatino, 376 U.S.
398; 84 S. Ct. 923 (1964). There, the U.S. 6. U.S.A. v. Rodrigo, G.R. No. 79470
Supreme Court held that international law
does not require the application of this The Supreme Court ruled that the United
doctrine nor does it forbid the application of States and its officials may be sued in
the rule even if it is claimed that the act of Philippine courts if they have impliedly
the state in question violated international waived their non-suability, clarifying that the
law. Moreover, due to the doctrine’s doctrine of state immunity is not absolute
peculiar nation-to-nation character, in and does not apply to commercial activities
practice, the usual method for an individual such as barbershops operated by the
to seek relief is to exhaust local remedies United States Armed Forces.
and then repair to the executive authorities
of his own state to persuade them to 7. U.S.A. v. Ceballos, G.R. No. 80018
champion his claim in diplomacy or before
an international tribunal. Even assuming While the doctrine appears to prohibit only
that international law requires the suits against the state without its consent, it

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JMendoza, JD 2 - Medialdea
 is also applicable to complaints filed against 5. Recognition of Belligerency, Conditions
officials of the state for acts allegedly
performed by them in the discharge of their a. Distinguish between Insurgency and
duties. The rule is that if the judgment Belligerency
against such officials will require the state
itself to perform an affirmative act to satisfy Insurgency
the same, such as the appropriation of the
amount needed to pay the damages - rebellion or revolt against the recognized
awarded against them, the suit must be government of a state or country,
regarded as against the state itself although typically by guerrilla forces
it has not been formally impleaded. In such
a situation, the state may move to dismiss Belligerency
the complaint on the ground that it has been
filed without its consent. - the state of being at war or in an armed
conflict, and it implies a certain legal
8. U.S.A. v. Vergara, 182 SCRA 644 status and protection for the parties
involved
The Supreme Court ruled that the United
States and its officials may be sued in 6. Consequences of Recognition of
Philippine courts if they have impliedly Belligerency
waived their non-suability, clarifying that the
doctrine of state immunity is not absolute Major consequence: legitimacy of all actions
and does not apply to commercial activities
such as barbershops operated by the Recognition of belligerency in international law
United States Armed Forces. refers to the formal acknowledgment of a
group engaged in an armed conflict as having
9. U.S.A. v. Ruiz, 136 SCRA 487 the rights and responsibilities of a state under
international law. This recognition can have
The restrictive application of State immunity significant legal and practical consequences,
is proper only when the proceedings arise including:
out of commercial transactions of the
foreign sovereign, its commercial activities, i. Legal Status: Recognized belligerents
or economic affairs. Stated differently, a gain certain rights, such as the ability to
State may be said to have descended to the engage in negotiations, enter into treaties,
level of an individual and can thus be and be held accountable for their actions
deemed to have tacitly given its consent to under international law.
be sued only when it enters into business
contracts. It does not apply where the ii. Rights of Combatants: Members of a
contract relates to the exercise of its recognized belligerent group may be
sovereign functions. entitled to the protections afforded to
combatants under the Geneva
10. U.S.A. v. Reyes, 219 SCRA 192 Conventions, which includes humane
treatment if captured.
The Supreme Court ruled that state
immunity does not apply to Bradford's acts, iii. Neutrality: States recognizing a group as
as she was sued in her private capacity for a belligerent may have obligations to
actions beyond her official functions. maintain neutrality in the conflict,
refraining from providing support to either
The Supreme Court noted that even on the side.
claim of diplomatic immunity, which
Bradford did not in fact pretend to have in iv. International Responsibility: The
the instant case as she was not among recognizing state may face international
those granted diplomatic immunity under legal responsibilities, including the
Article 16(b) of the 1953 Military Assistance potential for claims of aiding and abetting
Agreement creating the JUSMAG.

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 if it provides support to one side over the - Article 1, Definition of Aggression adopted by
other. the UN General Assembly
- The use of armed force by a State against
v. Increased Legitimacy: Recognition can the sovereignty, territorial integrity or political
enhance the legitimacy of the belligerent independence of another State, or in any
group, potentially influencing public other manner inconsistent with the Charter of
opinion and political dynamics both the United Nations, as set out in this
domestically and internationally. definition.

vi. Potential for International Involvement: Acts of Aggression

Recognition may lead to increased
international attention, including - Article 3, Definition of Aggression adopted by
humanitarian assistance, mediation the UN General Assembly
efforts, or even military intervention.
1. The invasion or attack by the armed forces
vii. Impact on Peace Negotiations: of a State of the territory of another State, or
Recognized belligerents may be included any military occupation, however temporary,
in peace talks, which can shape the terms resulting from such invasion or attack or any
of any eventual resolution to the conflict. annexation by the use of force of the
territory of another State or part thereof;
viii. Precedent for Future Conflicts: The
recognition of belligerency sets a 2. Bombardment by the armed forces of a State
precedent that may influence how similar against the territory of another State;
situations are handled in the future, 3. The blockade of the ports or coasts of a State
affecting the broader landscape of by the armed forces of another State;
international relations and conflict 4. An attack by the armed forces of a State on
resolution. the land, sea or air forces, or marine and air
fleets of another State;
Overall, the recognition of belligerency is a 5. The use of armed forces of one State which
powerful tool in international law that can alter are within the territory of another State with
the dynamics of conflict and affect the rights and the agreement of the receiving State, in
responsibilities of both the recognized group contravention of the conditions provided for
and other states. in the agreement or any extension of their
presence in such territory beyond the
IV. FUNDAMENTAL RIGHTS OF THE STATE termination of the agreement;
6. The action of a State in allowing its territory,
1. The Right of Existence and Self-Defense which it has placed at the disposal of another
State, to be used by that other State for
a. Requisites of Exercise of the Right of Self- perpetrating an act of aggression against a
Defense Article 51 of the UN Charter third State;
7. The sending by or on behalf of a State of
Presence of an armed attack armed force against another State of such
- A necessity of self-defense instant, gravity as to amount to the acts listed above,
overwhelming and leaving no choice of or its substantial involvement therein.
means and no moment for deliberation.
- The right may be resorted to only upon a Must there be a declaration of war?
clear showing of a grave or actual danger to - No (Article 2, Definition of Aggression
the security of the state. adopted by the UN General Assembly)
- The self-defensive measures must be limited
by the necessity and kept clearly within it. May acts of aggression be justified?
- No consideration of whatever nature,
b. Aggression whether political, economic, military or
otherwise, may serve as a justification for
Definition and Acts of Aggression aggression (Article 5, Definition of

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 - Aggression adopted by the UN General b. Intervention
Assembly)
Grounds for Intervention
However, Preventive Self-defense may be
exercised if the following conditions are met: - Denotes almost any act of interference by
one State in the affairs of another; but in a
1. For self-defense against an actual armed more special sense, it is confined to acts
attack of interference either in the domestic or
2. That such is reported immediately to the foreign affairs of another State which
Security Council violate that State’s independence.
3. Such action shall not in any way affect the - May be physical, political or economic
right of the Security Council to take action at - The interference must take an imperative
any time force; it must either be forcible or backed
by the threat of force.
2. The Right to Sovereignty and Independence
International Declarations Against
a. Sovereignty and Independence Intervention

Sovereignty i. Principle of Sovereignty: Most

international declarations emphasize the
- The independent personality of the State sovereignty of states, asserting that no
in relation with other members of the state has the right to intervene in the
international community. domestic matters of another state without
- The supreme, absolute, and consent.
uncontrollable power by which any
independent State is governed. ii. United Nations Charter: The UN
Jus sumna imperii Charter, particularly Articles 2(4) and 2(7),
- The absolute right to govern prohibits the use of force against the
- With the exception of when it subjects territorial integrity or political
itself to restrictions and limitations independence of any state and restricts
voluntarily agreed to by the State the UN from intervening in matters within
the domestic jurisdiction of states.
Independence
iii. Declaration on Principles of
- The right to exercise therein, to the International Law (1970): This
exclusion of any other State, the declaration asserts the importance of non-
functions of a State. intervention and respect for sovereignty,
- The normal condition of States emphasizing that states must refrain from
according to International Law; it may using force or coercive measures to
also be described as sovereignty by influence the internal affairs of other
which it is meant that the State has over states.
it no other authority than that of
International Law. iv. Non-Aligned Movement (NAM): Member
- Only means freedom from control by any states of NAM have consistently promoted
other state or group of states and not the principle of non-intervention,
freedom from the restrictions that are advocating for respect for sovereignty and
binding on all states forming the family of territorial integrity, especially during the
nations. Cold War and beyond.

Sovereignty v. Independence v. Regional Agreements: Various regional

organizations, such as the African Union
- Sovereignty holds greater impact since it and the Organization of American States,
is a matter of right have adopted principles against
intervention in member states' internal
affairs, although exceptions may exist for

11
JMendoza, JD 2 - Medialdea
 humanitarian intervention or collective - arbitrate, prevented agreement on the
security. compromise, or having agreed thereto,
refused to abide by the award of the
vi. Human Rights Considerations: While arbitrator.
non-intervention is a fundamental
principle, debates arise regarding when iii. Auto-limitation of sovereignty
intervention may be justified, particularly
in cases of gross human rights violations - The property of a State-force due to
or genocide. The "Responsibility to which it has the exclusive capacity of
Protect" (R2P) doctrine attempts to legal self-determination and self-
balance these issues by allowing for restriction.
intervention in extreme cases. - Any State, by its consent, express or
implied, submits to a restriction of its
vii. Soft Law Instruments: Various sovereign rights.
resolutions and declarations by the UN
General Assembly and other bodies iv. Reciprocity
reinforce the norm against intervention, - Usually the underlying consideration
although they may not be legally binding, behind the principle of auto-limitation.
they contribute to shaping state behavior - When a State consents to a partial
and international norms. surrender of sovereignty, it is usually in
consideration of the reciprocal
viii. Implications for International Relations: commitments of the other contracting
These declarations influence diplomatic States.
relations, shaping how states interact with
one another and often leading to tensions v. Monroe Doctrine
when intervention is perceived, whether it
is military, economic, or political. - Based on the State of the Union Address
of President James Monroe of the United
Drago Doctrine and its antecedents, States in 1823
Porter Resolution and other doctrines - Actually authored by John Quincy
Adams
i. Drago Doctrine - The United States was informing the
powers of the Old World that the
- Luis Drago (1859-1921) was a former American continents were no longer
Minister of Foreign Affairs of Argentina open to European colonization, and that
- That a public debt cannot give rise to the any effort to extend European Political
right of intervention, and much less to influence into the New World would be
the occupation of the soil of any considered by the United States as an
American nation by any European act of aggression.
power. - Main principles:
- Codified in the 1907 Hague Convention 1. Non-colonization
on the Limitation of Employment of 2. Non-intervention
Force for Recovery of Contract Debts 3. Separate spheres of influence for
- “the Contracting Powers agree not to the Americas and Europe.
have recourse to armed force for the
recovery of contract debts claimed from
vi. Roosevelt Corollary
the government of one country by the
government of another country as being
- Theodore Roosevelt
due to its nationals.”
- Justification of America’s intervention
throughout the Western Hemisphere
ii. Porter Resolution
- “Any country whose people conduct
themselves well can count upon our
- Intervention was permitted if the debtor
hearty friendship. Chronic wrongdoing,
state refused an offer to arbitrate the
or an impotence which results in a
creditor’s claim, or having agreed to
general loosening of the ties of civilized

12
JMendoza, JD 2 - Medialdea
 society, may in America, as elsewhere, iii. International Covenant on
ultimate require intervention by some Economic, Social and Cultural
civilized nation. Rights (ICESCR) (1966): It recognizes
the right to equality in the enjoyment of
vii. Contingent Sovereignty economic, social, and cultural rights
and mandates states to take steps to
- Sovereignty is contingent upon the ensure this equality.
fulfillment of certain fundamental State
obligations, particularly to its own iv. Convention on the Elimination of All
people. Forms of Discrimination Against
- Failure to do so may warrant intervention Women (CEDAW) (1979): This treaty
specifically addresses gender
viii. Doctrine of Equality of States inequality and promotes women's rights
and equality in all areas of life.
- All States are equal in International Law
despite their obvious factual inequalities v. Convention on the Rights of the Child
as to size, population, wealth, strength, (CRC) (1989): It recognizes the rights
or degree of civilization. of children to be treated equally and
- All States have an equal right to the without discrimination based on various
enjoyment of all their respective factors, including their status.
attributes as members of the family of
nations. vi. Convention on the Rights of Persons
with Disabilities (CRPD) (2006): This
ix. Act of State Doctrine convention emphasizes the equality of
persons with disabilities and their right
- A state should not inquire into the validity to participate fully in society.
of the public acts of another state done
within the territory of the latter. c. Rule of Par in Parem Non Habet Imperium

3. The Right of Equality - Even the strongest state cannot assume

jurisdiction over another state, no matter
a. Article 2, UN Charter how weak, or question the validity of its
acts in so far as they are made to take
“The Organization is based on the principle effect within its own territory
of the sovereign equality of all its
Members.” 4. Right to Territorial Integrity and Jurisdiction

b. International Agreements which recognize - Territorial integrity and jurisdiction are

Right of Equality fundamental principles in international law
that shape the relationships between states
i. Universal Declaration of Human and their governance.
Rights (UDHR) (1948): This
foundational document proclaims that a. Right to territorial integrity
"all human beings are born free and
equal in dignity and rights" and - The right to territorial integrity is the
emphasizes non-discrimination. principle that a state’s borders should
not be altered by external forces or
ii. International Covenant on Civil and intervention. It protects the physical and
Political Rights (ICCPR) (1966): This political boundaries of states.
treaty ensures that all individuals are
entitled to equal protection of the law b. Jurisdiction
and prohibits discrimination on various
grounds, including race, gender, and - refers to the authority of a state to
religion. govern or exercise legal power over

13
JMendoza, JD 2 - Medialdea
 persons, property, and events within its dimensions, form part of the internal waters of
territory, as well as to apply its laws. the Philippines.”

Important Notes: 3. Modes of Acquisition and Loss of Territory

- Understanding territorial integrity and i. Discovery and Occupation

jurisdiction is crucial for navigating
international relations, legal disputes, - Territory not belonging to any state is
and conflicts. Respect for these placed under the sovereignty of the
principles helps maintain global stability discovering state.
and order, but the nuances of self-
determination, extraterritoriality, and ii. Prescription
varying state practices present ongoing
challenges in international law. - Requires long, continued and adverse
- The right to territorial integrity and the possession to vest acquisitive title in the
principles of jurisdiction are claimant.
foundational to international law, - There is as yet no rule in international law
promoting respect for state sovereignty fixing the period of possession necessary
while also addressing the complexities to transfer title to the territory from the
of global interdependence. Balancing former to the subsequent sovereign.
these rights and responsibilities is
crucial for fostering peaceful iii. Cession
international relations and resolving
conflicts. - A method by which territory is transferred
from one state to another by agreement
between them.
V. TERRITORY OF STATES - Being essentially consensual, transfer of
title is effected upon the meeting of the
1. Definition minds of the parties and does not have to
bide the actual delivery of the ceded
- refers to the defined geographical area over territory to the acquiring State.
which a state has sovereignty and jurisdiction
- The fixed portion of the surface of the earth Forced cession
inhabited by the people of the State. - Usually effected by sale, donation, barter
- - Must be permanent and indicated with or exchange, and even by testamentary
precision disposition
- - Must be big enough to provide for the - Examples:
needs of the population by should not be so o USA’s purchase of Alaska from
extensive as to be difficult to administer or Russia in 1867
defend from external aggression o Gift by Austria of Lombardy to France
in 1859
2. National Territory of the Philippines (Section o Exchange between Great Britain and
1, Article 1, Constitution) Germany of the island of Helgoland
and the territory adjoining German
“The national territory comprises the Philippine East Africa in 1890
archipelago, with all the islands and waters
embraced therein, and all other territories over iv. Subjugation
which the Philippines has sovereignty or
jurisdiction, consisting of its terrestrial, fluvial - When having been previously conquered
and aerial domains, including its territorial sea, or occupied in the course of war by the
the seabed, the subsoil, the insular shelves, and enemy, it is formally annexed to it at the
other submarine areas. The waters around, end of that war.
between, and connecting the islands of the
archipelago, regardless of their breadth and

14
JMendoza, JD 2 - Medialdea
 Is it still applicable? 4. Components of Territory

- No, inasmuch as the UN Charter prohibits a. Terrestrial

resort to threat or use of force against the - refers to the land mass
territorial integrity or political a. Integrate (Iran)
independence of any State b. Dismembered (USA)
c. Partly bounded by water (Burma)
v. Accretion d. Island (Iceland)
e. Mid-ocean archipelagoes (Philippines;
- Accession cedat principali Indonesia)
- Accomplished through both natural or f. Coastal archipelagoes (Greece)
artificial processes as by gradual and
imperceptible deposit of soil on the b. Maritime and Fluvial Domain
coasts of the country through the action
of the water, by reclamation projects, or - bodies of water within the land mass and
through formation of islands. the waters adjacent to the coasts of the
state up to a specified limit.
a. Requisites of Valid Discovery and
Occupation a. Rivers
o National Rivers – situated completely
i. Possession – must be claimed on behalf in the territory of one State
of the state represented by the discoverer o Multi National Rivers – flows through
and may be effected through a formal the territories of several States
proclamation and the symbolic act of o International River – one that is
raising the national flag in the territory. navigable from the open sea and is
ii. Administration open to the use of vessels from all
states.
b. Terra Nullius and Animus Occupandi o Boundary River – divides the territories
of riparian States.
Terra Nullius
- An unoccupied or un-owned land; that is, b. Bays – well-marked indentation whose
not claimed by any existing State penetration is in such proportion to the
width of its mouth as to contain
Animus Occupandi landlocked waters and constitute more
- the intention to occupy, control, and claim than a mere curvature of the coast.
sovereignty over a territory. It is a subjective o Historical Bays – whose waters have
element of effective occupation, which is always been considered internal by
the acquisition of sovereignty over a the international community.
territory. The objective element of effective
occupation is the physical steps taken to i. Thalweg Doctrine
carry out the intention.
- For boundary rivers, in the absence of
c. Inchoate Title of Discovery an agreement between the riparian
States, the boundary line is laid on the
- Since an effective occupation must usually middle of the main navigable channel.
be a gradual process, it is considered that
some weight should be given to mere ii. UN Conference on the Law of the
discovery. Sea
- A temporary right to exclude other States
until the State of the discoverer has had a 1. Baselines
reasonable time within which to make an - lines that mark the beginning of a
effective occupation, or a sort of option to state's territorial sea and other maritime
occupy which other States must respect zones. The baseline is a key concept in
while it lasts. the United Nations Convention on the
Law of the Sea (UNCLOS).

15
JMendoza, JD 2 - Medialdea
 - a set of rules for islands that are
2. Archipelagic States based on Article 121 of the
- The UNCLOS defines an archipelagic UNCLOS
state as a state made up of one or
more archipelagos, which may include 3. Internal waters
other islands. - Bodies of water within the land mass,
such as rivers, lakes, canals, gulfs,
a. Straight archipelagic baselines bays and straits. The UNCLOS
- To determine the extent of the defines internal waters as all waters
archipelagic waters, the archipelagic on the landward side of the baselines
state shall draw straight baselines of the territorial sea.
connecting the outermost points of
the outermost islands and drying 4. Territorial Sea
reefs, provided that the ratio of the - The belt of the sea located between
area of the water to the area of the the coast and internal waters of the
land, including atolls, is between 1:1 coastal state on the one hand, and
and 9:1. The length of such the high seas on the other, extending
baselines shall not exceed 100 up to 12 nautical miles from the low-
nautical miles, except that up to 3% water mark, or in the case of
of the total number of base lines archipelagic states, from the
enclosing any archipelago may baselines.
exceed that length, up to a
maximum of 125 miles. The 5. Contiguous zone
baselines drawn should not depart, - Extends up to 12 nautical miles from
to any appreciable extent, from the the territorial sea. Although
general configuration of the technically, not part of the territory of
archipelago. All the waters within the State, the coastal State may
the baselines shall then be exercise limited jurisdiction over the
considered as internal waters. The contiguous zone, to prevent
breadth of the 12- mile territorial infringement of customs, fiscal,
sea, the contiguous immigration or sanitary laws.
zone, the exclusive economic zone
and the continental shelf shall then 6. Exclusive economic zone
be measured from - Extends up to 200 nautical miles from
the archipelagic baselines. the low water mark or the baselines,
as the case may be. Technically, the
b. Archipelagic waters area beyond the territorial sea is not
- The waters around, between and part of the territory of the State, but
connecting the islands of the the coastal State may exercise
archipelago, regardless of their sovereign rights over economic
breadth or dimension, are to be resources of the sea, seabed, subsoil,
treated as internal waters. although other States shall have
freedom of navigation and over-flight,
c. Archipelagic sea lanes passage to lay submarine cables and
- the right of ships and aircraft to pipelines, and other lawful uses.
navigate through archipelagic waters States with overlapping exclusive
and adjacent territorial seas for the economic zones are enjoined to enter
purpose of continuous, expeditious, into the appropriate treaty for the joint
and unobstructed transit. ASLP exploitation and utilization of the
applies to both military and resources in the area. Included in the
commercial ships and aircraft. Philippines’ exclusive economic zone
is the Scarborough Shoal, a rock
d. Regime of islands formation about 135 kilometers from
Iba, Zambales.

16
JMendoza, JD 2 - Medialdea
 7. Continental shelf iii. R.A. No. 5446
- It comprises the sea-bed and the
subsoil of the submarine areas that - a law that amended Republic Act No.
extend beyond its territorial sea 3046 to define the territorial sea and
throughout the natural prolongation of baselines of the Philippines
its land territory to the outer edge of - The law amended section 1 of
the continental margin, or to a Republic Act No. 3046 to define the
distance of 200 miles from the baselines and territorial sea of the
baselines from which the territorial Philippines.
sea is measured where the outer - The law describes the baselines of
edge of the continental margin does the territorial sea with geographical
not extend up to that distance. The coordinates. It also states that all
coastal State also enjoys the right of waters within the baselines are
exploitation of oil deposits and other considered internal or inland waters of
resources in the continental shelf. In the Philippines.
case the continental shelf extends to
the shores of another State, or is iv. R.A. No. 9522
shared with another State, the - a 2009 Philippine law that defines the
boundary shall be determined in Philippines' archipelagic baseline and
accordance with equitable principles amends certain provisions of R.A. No.
[North Sea Continental Shelf Cases, 5446
1969 ICJ Reports] - establishes 101 archipelagic
baselines for the Philippines
8. International Tribunal for the Law of consistent with UNCLOS, addressing
the Sea inconsistencies in RA 3046. However,
- Part XV of the 1982 UN Convention RA 9522's constitutionality was
on the Law of the Sea requires States questioned in the case Magallona vs.
to settle peacefully any dispute Executive Secretary Ermita but was
concerning the Convention. Failing a ultimately ruled constitutional.
bilateral settlement, Art. 286 provides
that any dispute shall be submitted for CASES:
compulsory settlement to one of the
tribunals having jurisdiction. These 1. Magallona v. Ermita, 655 SCRA 476
include the International Tribunal for
the Law of the Sea (ITLOS), the In the absence of municipal legislation,
International Court of Justice, and international law norms, now codified in
arbitral or special arbitral tribunals UNCLOS III, operate to grant innocent
constituted under the UNCLOS. passage rights over the territorial sea or
archipelagic waters, subject to the treaty’s
The ITLOS is composed of 21 limitations and conditions for their exercise.
independent members elected by the Significantly, the right of innocent passage
States Parties to the UNCLOS from is a customary international law, thus
among persons with recognized automatically incorporated in the corpus of
competence in the field of the law of Philippine law. No modern State can validly
the sea and representing the principal invoke its sovereignty to absolutely forbid
legal systems of the world. ITLOS has innocent passage that is exercised in
jurisdiction overall disputes and all accordance with customary international
applications submitted to it in law without risking retaliatory measures
accordance with UNCLOS and over from the international community.
all matters specifically provided for in
any other agreement which confers 2. Fisheries Case, ICJ Reports (1951) 116
jurisdiction on the ITLOS.
The law relied upon mainly on international
Law of the sea; how far a state can modify
its territorial waters and its control over it,

17
JMendoza, JD 2 - Medialdea
 exclusively reserving fishing for its - This is the primary basis of jurisdiction
nationals. In this case, rules that are and it provides that a State is free to
practiced for instance how long a baseline legislate and enforce that legislation
should be. Only a 10-mile long straight line within its territory.
is allowed and this has been the practice by
most states however it is different in the b. Nationality principle
case of Norway because of Norway's - The power exercised by a State over its
geographic indentation, islands and islets nationals. It is based on the theory that
and that Norway always opposed any a national is entitled to the protection of
attempt to apply it to its coast. his state wherever he may be and is,
therefore, bound to it by a duty of
3. In the matter of the South China Sea obedience and allegiance.
Arbitration [P.C.A. 2013-19]
c. Protective Principle
This case reinforces the concept of - The State has jurisdiction over acts
sovereign rights within the EEZ and committed abroad by nationals or
continental shelf as an extension of state foreigners which are prejudicial to its
territory, albeit with limitations. It clarifies national security or vital interest.
that these rights are exclusive to the coastal
state and cannot be infringed upon by other d. Universality Principle
states claiming historic rights. The ruling - The State has jurisdiction over offense
also emphasizes that low-tide elevations on considered as universal crimes
a state's continental shelf are subject to that regardless of where committed and
state's sovereign rights, limiting the ability of who committed them
other states to claim or modify such
features. e. Jurisdiction based on agreement
- jurisdiction can be based on an
c. Aerial domain agreement, such as a special
agreement, a jurisdictional clause, or a
- refers to the air space above the land and choice-of-court clause
waters of the State.
Limitation of Jurisdiction
VI. JURISDICTION
- The State cannot exercise jurisdiction
1. International Jurisdiction even within its own territory over:
- The allocation of power and authority
among the States. a. Foreign states, heads of states,
diplomatic representatives, and consuls
2. Types of Jurisdiction to a certain degree.

i. Jurisdiction to prescribe – to make its b. Foreign state property, including

law applicable to persons or activities embassies, consulates, and public
vessels engaged in non-commercial
ii. Jurisdiction to adjudicate – to subject activities.
particular persons or things to juridical
process; and c. Act of State. A State should not inquire
into the legal validity of the public acts of
iii. Jurisdiction to enforce and execute – to another State done within the territory of
use the resources of government to the latter.
induce or compel compliance with its
law. d. Foreign merchant vessels exercising
their rights of innocent passage or arrival
3. Bases of Jurisdiction under stress.

a. Territoriality Principle

18
JMendoza, JD 2 - Medialdea
 e. Foreign armies passing through or A. Land Jurisdiction
stationed in its territories with its
permission. - the authority of a state to regulate
people, property, and circumstances
4. Territorial Jurisdiction within its territory.

In what instances may a State extend its - a central feature of state sovereignty
territorial jurisdiction over territory of other and is derived from the territoriality
States? principle, which states that a state has
exclusive authority to deal with criminal
a. Through assertion of its personal issues that arise within its territory.
jurisdiction over its nationals abroad or
the exercise of its right to punish certain B. Maritime and Fluvial Jurisdiction
offenses committed outside its territory
against its national interests, even if the a. English and French Rules on Criminal
offenders are non-resident aliens. Jurisdiction over Merchant Vessels

b. On the strength of its relations with other English Rule

states or territories, as when it
establishes a colonial protectorate, or a - The coastal state shall have
condominium or administers a trust jurisdiction over all offenses
territory, or copies enemy territory in committed on board such vessels,
times of war. except only where they do not
compromise the peace of the port.
c. As a consequence of the waiver of
jurisdiction by the local state over French Rule
persons and things within its territory
- The flag state shall have jurisdiction
d. Through acquisition of extraterritorial over all offenses committed on
rights. board such vessels, except only
where they compromise the peace
e. Through the enjoyment of easements or of the port.
servitudes, such as the easement of
innocent passage or the easement or b. The Contiguous Zone and the
arrival under stress. Continental Shelf

CASE: The Contiguous Zone

Underhill v. Hernandez, 168 US 250 - Protective jurisdiction

- It is a zone contiguous to the
The Supreme Court affirmed the lower territorial sea of a coastal state
courts' rulings in favor of Hernandez. The which may extend up to 24 nautical
Court held that Hernandez's acts were acts miles from the same baseline that is
of the Venezuelan government during a used in measuring the breadth of the
period of war and regime change, and territorial sea.
therefore could not be subjected to the - Convention on the Territorial Sea
jurisdiction of U.S. courts. According to the and the Contiguous Zone
established doctrine that sovereign states will - In a zone of the high seas
not sit in judgment of other sovereign states' contiguous to its territorial sea, the
acts within their own territory, Hernandez coastal state may exercise the
was not civilly liable for his actions as a control necessary to:
military commander representing the de facto
Venezuelan government. a. Prevent infringement of its
customs, fiscal, immigration or

19
JMendoza, JD 2 - Medialdea
 requirements of justice and effectively to
b. sanitary regulations within its protect the interests of the two states. It is only
territory or territorial sea natural that each should be able to exercise
c. Punish the infringement of the jurisdiction and to do so in respect of the
above regulations within its incident as a whole. It is therefore a case of
territory or territorial sea. concurrent jurisdiction.

Continental Shelf However, Article 11 of the Convention on the

High Seas provides that “in the event of a
a. The seabed and subsoil of the collision or of any other incident of navigation
submarine areas adjacent to the concerning a ship on the high seas, involving
coast but outside the area of the the penal or disciplinary responsibility of the
territorial sea to a depth of 200 master or of any other person in the service of
meters or, beyond that limit, to the ship, no penal or disciplinary proceeding
where the depth of the superjacent may be instituted against such persons except
water admins of the exploitation of before the judicial or administrative authorities
the natural resources of the said either of the flag state or the state of which the
areas person is a national.
b. To the seabed and subsoil of similar
areas adjacent to the coasts of Instances when State may exercise
islands. Jurisdiction

NOTE: 1. Over its vessels

The coastal state has the sovereign right to 2. Over pirates
explore the continental shelf to explore its 3. In the exercise of the right of visit and
natural resources and for this purpose it search
may erect on it such installations and 4. Under the doctrine of hot pursuit
equipment as may be necessary.
Doctrine of Hot Pursuit
c. The Patrimonial Sea/Economic Zone
- Article III, Convention on the Laws of the
- Exclusive Economic Zone Sea
- Extends 200 nautical miles from the - The right of hot pursuit allows the
coast or the baselines. All living and non- competent authorities of the coastal State to
living resources found therein belong pursue a foreign ship in the high seas when
exclusively to the coastal state. they have good reason to believe that the
ship has violated the laws and regulations
d. The Open Seas of that state.

Res Communes a. The pursuit must be commenced when the

foreign ship or one of its boats is within the
- A thing common to all. internal waters, the archipelagic waters, the
- Something enjoyed by everyone and territorial sea or the contiguous zone of the
not subject to exclusive acquisition. pursuing State.
1. Open seas b. The pursuit may only be continued outside
2. Space (i.e., moon) the territorial sea or the contiguous zone if
the pursuit has not been interrupted.
CASE: c. The right of hot pursuit ceases as soon as
the ship pursued enters the territorial sea of
Lotus Case, PICJ, Ser. A. No. 10, 1927, its own State or of a third State.
Hudson, World Ct. Rep d. d. The right of hot pursuit may be exercised
only by warships or military aircraft, or other
Neither the exclusive jurisdiction of each to the ships or aircraft clearly marked and
occurrences took place on the respective ships identifiable as being on government service
would appear calculated to satisfy the and authorized to that effect.

20
JMendoza, JD 2 - Medialdea
 the object, or from whose territory the
C. Aerial Jurisdiction object is launched.

- Every State has complete and exclusive d. Other Territories

sovereignty over the airspace above its
territory. In what instances may a State extend
- However, the airspace above the high seas its territorial jurisdiction over territory of
shall also be res communes. other States?

a. Five Air Freedoms i. Through assertion of its personal

jurisdiction over its nationals abroad
i. The freedom to fly across foreign or the exercise of its right to punish
territory without landing. certain offenses committed outside
ii. The freedom to land for non-traffic its territory against its national
purposes. interests, even if the offenders are
iii. The freedom to put down traffic non-resident aliens.
originating in the state of the aircraft. ii. On the strength of its relations with
iv. The freedom to embark traffic destined other states or territories, as when it
for the state of the aircraft. establishes a colonial protectorate,
v. The freedom to embark traffic destined or a condominium or administers a
for or to put down traffic originating in a trust territory, or copies enemy
third state. territory in times of war.
iii. As a consequence of the waiver of
b. Convention of Offenses and Certain Acts jurisdiction by the local state over
Committed on Board Aircraft persons and things within its territory
iv. Through acquisition of extraterritorial
- No other state may exercise jurisdiction rights.
over such aircraft except when: v. Through the enjoyment of
easements or servitudes, such as
i. The offense has effect on the the easement of innocent passage
territory of such state; or the easement or arrival under
ii. The offense has been committed by stress.
or against a national or permanent
resident of such state; e. Distinction of exterritoriality from
iii. The offense is against the security of extraterritoriality
such state;
iv. The offense consists of a breach of Exterritoriality
any rules or regulations relating to
the flight or maneuver of aircraft in - The exemption of persons and
force in such state; property from the local jurisdiction
v. The exercise of jurisdiction is on the basis of international custom
necessary to ensure the observance
of any obligation of such state under Extraterritoriality
a multilateral international
agreement. - Applies only to persons and is based
on treaty or convention. It has
c. Outer Space become discredited because of the
rise of nationalism and the sovereign
- Is the area that lies beyond the equality of states
airspace of the Earth. But as to where it
begins, there is no universally accepted 5. Generally Recognized Principles of Criminal
reference point. Jurisdiction
- Article 7 of the Outer Space Treaty
places the liability on the State which a. Territorial Principle
launches or authorizes the launching of

21
JMendoza, JD 2 - Medialdea
 - The State may exercise jurisdiction only - State has jurisdiction over offenses
within its territory. Exceptionally, it may considered as universal crimes regardless
have jurisdiction over persons and acts of where committed and who committed
done outside its territory depending on the them. Universal crimes are those which
kind of jurisdiction it invokes. While there threaten the international community as a
is no territorial limit on the exercise of whole and are considered criminal offenses
jurisdiction over civil matters, a State, as a in all countries, e.g., piracy jure gentium,
general rule, has criminal jurisdiction only genocide, white slave trade, hi-jacking,
over offenses committed within its terrorism, war crimes.
territory, except over (i) continuing
offenses; (ii) acts prejudicial to the e. Passive Personality Principle
national security or vital interests of the
State; (iii) universal crimes; and (iv) - State exercises jurisdiction over crimes
offenses covered by special agreement against its own nationals even if committed
(although this is now obsolete) outside its territory. This principle may be
resorted to if the others are not applicable.
b. Nationality Principle
Jurisdictional Cooperation and Assistance among
- The State has jurisdiction over its States:
nationals anywhere in the world, based on
the theory that a national is entitled to the Extradition
protection of the State wherever he may
be, and thus, is bound to it by duty of - the formal process whereby a State requests
obedience and allegiance, unless he is from the requested State the return of a
prepared to renounce his nationality. This person accused or convicted of a crime to
applies to civil matters, e.g., Art. 15, Civil stand trial or serve a sentence in the
Code, which provides: “Laws relating to requesting State. Historically, there was no
family rights and duties, or to the status, general duty to extradite. Extradition was often
condition and legal capacity of persons based on informal relations between leaders of
are binding upon citizens of the sovereign States. The increasing numbers of
Philippines, even though living abroad”; such cases created the need for more formal
and also in taxation. The principle does agreements
not, however, apply to criminal offenses
Letters Rogatory
c. Protective Principle
- also known as letters of request, are formal
- State has jurisdiction over acts committed written requests from a court to a foreign court
abroad (by nationals or foreigners) which for judicial assistance. The most common
are prejudicial to its national security or requests are for service of process or to take
vital interests. See Art. 2, Revised Penal evidence
Code, which speaks of Philippine criminal
jurisdiction over (i) offenses committed on Prosecution of International Crimes
board a Philippine ship or airship; (ii)
forgery/counterfeiting of Philippine coins - The International Criminal Court (ICC) is a
or currency notes; (iii) introduction into the permanent court that investigates and
Philippines of such forged or counterfeit prosecutes individuals accused of war crimes,
coins or notes; (iv) offenses committed by genocide, crimes against humanity, and the
public officers or employees in the crime of aggression
exercise of official functions; and (v)
crimes against national security and the Recovery of Claims Abroad
law of nations.
- This UN convention allows individuals to
d. Universality Principle request maintenance from a respondent who
is subject to the jurisdiction of another
Contracting Party. The claimant must submit a

22
JMendoza, JD 2 - Medialdea
 request to the Transmitting Authority in their d. ascertaining, by all lawful means, the
state of residence, along with relevant conditions and developments in the receiving
documents. The Transmitting Agency will then State and reporting these to the sending
take steps to enforce the claim State; and
e. promoting friendly relations between the
Cooperation in the Protection of Marine sending State and the receiving State, and
Resources developing their economic, cultural and
scientific relations.
- The United Nations Convention on the Law of
the Sea (UNCLOS) establishes laws to protect 4. Diplomatic Immunities and Privileges
and preserve the marine environment. Part XII
of the UNCLOS provides a framework for a. Personal Inviolability
protecting the marine environment
- The person of the diplomatic
VII: THE RIGHT OF LEGATION representative is inviolable; he shall not be
liable to any form of arrest or detention.
1. Agents of Diplomatic Intercourse The receiving State shall treat him with
due respect and take all steps to prevent
a. Head of State. He is the embodiment of, and any attack on his person, freedom or
represents, the sovereignty of the State, and dignity. In the Philippines, R.A. 75
enjoys the right to special protection for his punishes, on the basis of reciprocity, any
physical safety and the preservation of his person who assaults, strikes, wounds,
honor and reputation. His quarters, archives, offers violence to the person of the
property and means of transportation are ambassador or minister (except if done in
inviolate under the principle of exterritoriality. self defense).
He is immune from criminal and civil
jurisdiction, except when he himself is the - The UN Convention on the Prevention and
plaintiff, and is not subject to tax or exchange Punishment of Crimes Against
or currency restrictions. Internationally Protected Persons
considers crimes against diplomatic
b. The Foreign Office. The actual day-to-day agents as international, not political, in
conduct of foreign affairs is usually entrusted nature. However, the diplomatic envoy
to a Foreign Office, headed by a Secretary or may be arrested temporarily in case of
a Minister, who, in proper cases, may make urgent danger, such as when he commits
binding declarations on behalf of his an act of violence which makes it
government necessary to put him under restraint for
the purpose of preventing similar acts; but
2. Commencement of Diplomatic Mission he must be released and sent home in
due time.
a. Letter of Credence
b. Immunity from Jurisdiction, Exceptions to
- a formal document that appoints a diplomat Civil and Administrative Jurisdiction
as an ambassador to another country
- Under the 1961 Vienna Convention on
3. Diplomatic Functions Diplomatic Relations, a diplomatic agent
shall enjoy immunity from criminal
The main functions of a diplomatic mission are: jurisdiction of the receiving State. Thus, he
cannot be arrested, prosecuted and
a. representing the sending State in the punished for any offense they may
receiving State; commit, unless his immunity is waived.
b. Protecting in the receiving State the interests But immunity from jurisdiction does not
of the sending State and its nationals, within mean exemption from local law; it does
the limits allowed by international law; not presuppose a right to violate the laws
c. negotiating with the government of the of the receiving State. Diplomatic privilege
receiving State; does not import immunity from legal

23
JMendoza, JD 2 - Medialdea
 liability but only exemption from local g. Exemption from Taxation
jurisdiction
- Under the Vienna Convention, diplomatic
i. R.A 75 agents are exempt from all dues and
taxes, whether personal or real, national,
- a law that penalizes actions that would regional or municipal, except the following:
hinder the Philippines from observing the [i] indirect taxes normally incorporated in
rights, privileges, and immunities of the price of goods or services; [ii] dues
foreign diplomatic and consular agents and taxes on private immovable property
situated in the territory of the receiving
c. Inviolability of Diplomatic Premises State, unless he holds it on behalf of the
sending State for purposes of the mission;
- The premises occupied by a diplomatic [iii] estate, succession or inheritance taxes
mission, as well as the private residence levied by the receiving State; [iv] dues and
of the diplomatic agent, are inviolable. taxes on private income having its source
in the receiving State and capital taxes on
- The agents of the receiving State may investments in commercial ventures in the
not enter without the consent of the receiving State; [v] charges levied for
envoy, except in extreme cases of specific services rendered; and [vi]
necessity, e.g., when the premises are registration, court or record fees,
on fire, or where there is imminent mortgage dues and stamp duty, with
danger that a crime of violence is to be respect to immovable property.
perpetrated in the premises. Such
premises cannot be entered or h. Other Privileges
searched, and neither can the goods,
records and archives be detained by - which include freedom of movement and
local authorities even under process of travel in the territory of the receiving State;
law exemption from all personal services and
military obligations; the use of the flag and
d. Inviolability of Archives emblem of the sending State on the
diplomatic premises and the residence
- a status that protects the archives and and means of transport of the head of
documents of a diplomatic mission from mission
interference by the receiving state
5. Duration and Termination of Diplomatic
e. Inviolability of Communication Mission

- The right of an envoy to communicate In international law, the duration and termination
with his government fully and freely is of a diplomatic mission can occur in a number of
universally recognized. The mission may ways, including:
employ all appropriate means to send
and receive messages, whether ordinary i. Term of duty: Diplomatic missions have a
or in cipher, by any of the usual modes term of duty.
of communication or by means of
diplomatic couriers. Because of this ii. Transfer: A diplomat may be transferred to a
right, the diplomatic pouch and new post or to their home country.
diplomatic couriers shall also enjoy
inviolability. iii. Promotion: A diplomat may be promoted to
a higher position.
f. Exemption from Testimonial Duties
iv. Retirement: A diplomat may retire upon
- diplomatic agents are exempt from superannuation or when their contract of
giving evidence as witnesses in trials service ends.

24
JMendoza, JD 2 - Medialdea
 v. Persona non grata: The diplomat may be right to diplomatic immunity and asked for
declared persona non grata, which means the quashal of the search warrant.
they must leave the receiving state.
3. Holy See v. Rosario, 238 SCRA 524
vi. Recall: The diplomat's home state may recall
them. The Philippines and the Holy See, being the
central governing body of the Catholic
vii. Rupture of diplomatic relations: Diplomatic Church and the Vatican City State, both
relations between the two states may be have the right of legation, which means that
ruptured. they can send diplomatic agents to other
states as well as receive diplomatic agents
viii. War: War may break out between the two of other states.
states.
4. DFA v. NLRC, 262 SCRA 39
a. Persona non grata
One of the basic immunities of an
- a Latin phrase that means "unwelcome international organization is immunity from
person" local jurisdiction, i.e., that it is immune from
the legal writs and processes issued by the
- refers to a formal declaration by a host tribunals of the country where it is found.
country that a foreign national or
diplomat is no longer welcome in the 5. Reyes v. Bagatsing, 125 SCRA 553
country. The host country can make
this declaration for a variety of reasons, The denial of the application could be
and the decision is usually made by the viewed as an infringement on
host country's government. constitutionally protected rights. —The
Philippine Constitution guarantees the right
CASES: to freedom of speech and peaceful
assembly. Article III, Section 4 states: “No
1. Pimentel v. Executive Secretary, G.R. law shall be passed abridging the freedom
No. 158088, July 6, 2005 of speech, of expression, or of the press, or
the right of the people peaceably to
This Court has no jurisdiction over actions assemble and petition the government for
seeking to enjoin the President in the redress of grievances.”
performance of his official duties. The
Court, therefore, cannot issue the writ of A treaty cannot supersede provisions of the
mandamus prayed for by the petitioners as Constitution. — Indeed, the receiving state
it is beyond its jurisdiction to compel the is tasked for the protection of foreign
executive branch of the government to diplomats from any lawless element.
transmit the signed text of Rome Statute to
the Senate. 6. Bayan v. Zamora, 342 SCRA 449

2. WHO v. Aquino, 48 SCRA 1242 The Court affirmed that the President has
broad powers in foreign relations:
The Department of Foreign Affairs formally As head of state, the President is the sole
advised the respondent judge of the organ in external affairs; the President is
Philippine Government's official position, chief architect of foreign policy; and
stating that "Dr. Verstuyft cannot be the President's dominance in foreign relations is
subject of a Philippine court summons constitutionally recognized.
without violating an obligation in
international law of the Philippine 7. Lasco v. U.N. Revolving Fund, 241 SCRA
Government" and requested the quashal of 681
the search warrant. The Solicitor General,
as principal law officer of the Government,
likewise expressly affirmed the petitioner’s

25
JMendoza, JD 2 - Medialdea
 The issue whether an international ICMC provides that ICMC shall have a
organization is entitled to diplomatic status "similar to that of a specialized
immunity is a "political question" and such agency." Article III, Sections 4 and 5 of the
determination by the executive branch is Convention on the Privileges and
conclusive on the courts and quasi-judicial Immunities of Specialized Agencies,
agencies. adopted by the UN General Assembly on
21 November 1947 and concurred in by the
8. China Machinery v. Santa Maria, 665 Philippine Senate through Resolution No.
SCRA 189 19 on 17 May 1949.

According to the newer or restrictive theory, Art. III, Section 4. The specialized agencies,
the immunity of the sovereign is recognized their property and assets, wherever located
only with regard to public acts or acts jure and by whomsoever held, shall enjoy
imperii of a state, but not with regard to immunity from every form of legal process
private acts or acts jure gestionis. except insofar as in any particular case they
have expressly waived their immunity.
9. GTZ v. CA, G.R. No. 152318, April 16,
2009 13. Liang v. People, 355 SCRA 125

Where suit is filed not against the The immunity mentioned therein is not
government itself or its officials but against absolute, but subject to the exception that
one of its entities, it must be ascertained the acts was done in "official capacity." It is
whether or not the State, as the principal therefore necessary to determine if
that may ultimately be held liable, has given petitioner's case falls within the ambit of
its consent to be sued. Section 45(a). Thus, the prosecution should
have been given the chance to rebut the
10. Jusmag v. NLRC, 239 SCRA 224 DFA protocol and it must be accorded the
opportunity to present its controverting
When JUSMAG employed the private evidence, should it so desire.
respondent, it was performing a
governmental function on behalf of the
United States as per the 1947 Military 6. Consuls
Assistance Agreement. Therefore, this suit
is effectively against the United States a. Kinds and Grades
Government, even though the U.S. was not
named in the complaint. Since the United Kinds
States has not waived or consented to the
suit, the complaint against JUSMAG cannot i. Consules missi are professional and
proceed. career consuls, and nationals of the
appointing state.
11. DFA v. NLRC, 262 SCRA 39
ii. Consules electi are selected by the
ADB is correct in invoking its immunity from appointing state either from its own
suit. The stipulations of both the Charter citizens or from among nationals abroad.
and the Banker’s Headquarters Agreement
establish that, except in the specified cases Grades
of borrowing and guarantee operations, as
well as the purchase, sale and underwriting i. Consul General, who heads several
of securities, the ADB enjoys immunity from consular districts, or one exceptionally
legal process of every form. large consular district.

12. ICMC v. Calleja, 190 SCRA 130 ii. Consul, who takes charge of a small
district or town or port
Article II of the Memorandum of Agreement
between the Philippine Government and

26
JMendoza, JD 2 - Medialdea
 iii. Vice Consul, who assists the consul - issued by President Fidel V. Ramos on
November 25, 1997 provides the guidelines
iv. Consular agent, who is usually in the negotiation of international agreements
entrusted with the performance of and its ratification.
certain functions by the consul.
- mandates that after the treaty has been
b. Appointment signed by the Philippine representative, the
same shall be transmitted to the Department
i. Letters patent (flettre de provision], of Foreign Affairs.
which is the letter of appointment or
commission which is transmitted by the 2. Treaty v. Executive Agreements
sending state to the Secretary of
Foreign Affairs of the country where the Treaties and executive agreements are both
consul is to serve. ways to create agreements between
governments, but they differ in the level of
ii. Exequatur, which is the authorization approval required and the degree to which they
given to the consul by the sovereign of bind future administrations:
the receiving state, allowing him to
exercise his function within the territory. Treaties
Require the approval of two-thirds of the Senate
c. Immunities and Privileges and the president. Treaties are formal
documents that are difficult to change by a
- Under the 1963 Vienna Convention on future administration. Treaties can be bilateral,
Consular Relations, consuls are allowed between two countries, or multilateral, between
freedom of communication in cipher more than two countries.
or otherwise; inviolability of archives,
but not of the premises where legal Executive agreements
processes may be served and arrests Do not require congressional approval and can
made; exempt from local jurisdiction be made with the signature of the president or
for offenses committed in the their representative. Executive agreements can
discharge of official functions, but not supersede state laws, but not federal laws. They
other offenses except minor infractions; do not bind future presidents to the agreement.
exempt from testifying on official
communications or on matters Presidents often use executive agreements
pertaining to consular functions; when negotiations would not gain the support of
exempt from taxes, customs duties, two-thirds of the Senate, especially for
military or jury service; and may controversial political issues. However, some
display their national flag and emblem scholars and politicians believe that presidents
in the consulate. have overused executive agreements.

a) These immunities and privileges are also 3. Functions

available to the members of the consular
post, their families and their private staff. i. Specify the status of seas and the
Waiver of immunities may be made by international seabed
the appointing state.
ii. Protect human rights
d. Termination of Consular Mission
iii. Address controversial political issues
- Usual modes of terminating official
relationship; withdrawal of the exequatur; iv. Be used in conjunction with congressional
extinction of the state; war. acts

VIII. TREATIES 4. Essential Requisites of a Valid Treaty

1. Executive Order No. 459

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JMendoza, JD 2 - Medialdea
 a. Every State possesses the capacity to - a practice where diplomats use a lottery or
conclude treaties, as an attribute of a set order to determine the precedence
sovereignty. Under customary international of powers that are equal in rank. It is most
law, international organizations are deemed commonly used when signing treaties and
to possess treaty-making capacity, although conventions, where each power receives
such capacity may be limited by the a copy of the document with their name at
purpose and the constitution of such the top of the list of signatories
organizations.
6. Binding Effect of Treaties
b. Competence of the representative/oraan
concluding the treaty. Generally, the a. Reservation, When Allowed
Head of State exercises the treaty-making
power. In the Philippines, it is the President - A unilateral statement, made by a State
who exercises the power, subject to when signing, ratifying, accepting,
concurrence by 2/3 of all the members of approving or acceding to a treaty,
the Senate. whereby it purports to exclude or modify
the legal effect of certain provisions of
c. Parties must freely give consent: the the treaty in their application to that
consent of a State may be expressed by State.
signature, exchange of instruments
constituting a treaty, ratification, - The State making the reservation
acceptance, approval or accession, or by remains a party to the treaty, provided
other means manifesting consent. Where that the reservation is compatible with
the consent of a party has been given in the object and purpose of the treat
error or induced through fraud on the party
of the other, the treaty is voidable. Where b. Most-Favored Nation Clause
the consent of the State is obtained through
the corruption of its representative by - a trade agreement stipulation that
another negotiating State, the former may requires a country to grant the same
invoke such corruption in invalidating its treatment to all trading partners as it
consent to be bound by the treaty. does to one particular partner. The MFN
principle is a cornerstone of the World
d. Object and subject matter must be lawful, Trade Organization (WTO) and is based
within the commerce of nations on the idea that all countries should be
and in conformity with international law. treated equally in international trade.
However, the object is deemed illegal only
when it contravenes or departs from an 7. Observance of Treaties
absolute or imperative rule or prohibition of
international law. - The Vienna Convention on the Law of
Treaties (VCLT) includes provisions that
e. Ratification in accordance with address the observance of treaties, including
constitutional processes of the the interpretation of treaties, the internal law
parties concerned. of states, and the entry into force of treaties

5. Treaty-making Process 8. Pacta Tertiis Nec Nocent Nec Prosunt

a. Accession - The Latin legal maxim “Pacta tertiis nec

nocent nec prosunt” translates to
- the act of a state agreeing to become a “Agreements (or contracts) do not harm (or
party to a treaty that has already been prejudice) third parties nor do they benefit
negotiated and signed by other states. It them.” This principle means that contracts
has the same legal effect as ratification only apply to the parties who have agreed to
the terms and do not extend rights or
b. Alternat obligations to individuals or entities who are
not part of the agreement. In legal terms, this

28
JMendoza, JD 2 - Medialdea
 emphasizes that third parties cannot be held agreements relating to the treaty and
responsible for a contract they are not part subsequent agreements entered into by the
of, nor can they claim any advantages from contracting parties.
such agreements.
X. Termination of Treaties
9. Pacta Sunt Servanda
1. Grounds for Invalidating a State’s Consent to
- requires that treaties must be observed in be bound by a Treaty:
good faith. If necessary, the State concerned
must even modify its national legislation and a. Expiration of the term, or withdrawal of a
constitution to make them conform to the party in accordance with the
treaty, in order to avoid international b. Extinction of one of the parties to the
embarrassment. In the Philippines, however, treaty (in case of bipartite treaties), when
treaties may be declared invalid if contrary to the rights and obligations under the treaty
the Constitution. would not devolve upon the State that
may succeed the extinct State.
10. Doctrine of Rebus Sic Stantibus, c. Mutual agreement of all the parties.
Requisites and Limitations d. Denunciation or desistance by one of the
parties. The right to give notice of
- means that a contracting State’s obligations termination or withdrawal is known as the
under a treaty terminates when a vital or right of denunciation.
fundamental change of circumstances occurs, e. Supervening impossibility of performance.
thus allowing a State to unilaterally withdraw f. Conclusion of a subsequent inconsistent
from a treaty, because of the “disappearance treaty between the parties.
of the foundation upon which it rests” g. Loss of the subject matter.
h. Material breach or violation of the treaty.
The requisites for valid invocation of this i. The application of the doctrine of rebus sic
principle are: stantibus.
j. The outbreak of war between the parties,
a. The change must be so substantial that the unless the treaty precisely relates to the
foundation of the treaty must have conduct of the war.
altogether disappeared; k. Severance of diplomatic relations, only if
b. The change must have been unforeseen or the existence of such relationship is
unforeseeable at the time of the perfection indispensable for the application of the
of the treaty; treaty.
c. The change must not have been caused by l. The doctrine of jus cogens, or the
the party invoking the doctrine; emergence of a new peremptory norm of
d. The doctrine must be invoked within a general international law which renders
reasonable time; void any existing treaty conflicting with
e. The duration of the treaty must be such norm.
indefinite; and
f. The doctrine cannot operate retroactively, CASES:
i.e., it must not adversely affect provisions
which have already been complied with 1. Commissioner of Customs v. Eastern Sea
prior to the vital change in the situation. Trading, 3 SCRA 351

IX. Treaty Interpretation The Supreme Court definitively ruled that:

Article VII, Section 10(7) of the Constitution
- A treaty shall be interpreted in good faith, in requires Senate concurrence only for treaties.
accordance with the ordinary meaning given to Executive agreements are validly executed
the terms of the treaty in their context and in without Senate approval The Constitution
the light of its objects and purposes. recognizes these as two distinct international
instruments.
- To be considered in the interpretation are its
text, preamble, annexes, as well as other

29
JMendoza, JD 2 - Medialdea
 2. Pimentel v. Executive Secretary, G.R. No. purposes the Clark Air Force Base is outside
158088, July 6, 2005 Philippine territory, is utterly without merit.

The President is vested with the authority to 7. Guerrero Transport v. Blaylock, 71 SCRA
deal with foreign states and governments, 621
extend or withhold recognition, maintain
diplomatic relations, enter into treaties, and A treaty has two (2) aspects — as an
otherwise transact the business of foreign international agreement between states, and as
relations. In the realm of treaty-making, the municipal law for the people of each state to
President has the sole authority to negotiate observe. As part of the municipal law, the
with other states. aforesaid provision of the treaty enters into and
forms part of the contract between petitioner
3. Tanada v. Angara, 272 SCRA 18 and the U.S. Naval Base authorities. In view of
said stipulation, the new contractor is, therefore,
While the Constitution indeed mandates a bias bound to give "priority" to the employment of the
in favor of Filipino goods, services, labor and qualified employees of the previous contractor.
enterprises, at the same time, it recognizes the It is obviously in recognition of such obligation
need for business exchange with the rest of the that petitioner entered into the afore-mentioned
world on the bases of equality and reciprocity Compromise Agreement.
and limits protection of Filipino enterprises only
against foreign competition and trade practices 8. U.S.A. v. Purganan, G.R. No. 148571,
that are unfair. December 17, 2002

4. Inchong v. Hernandez, 101 Phil. 1156 The Supreme Court, en banc, ruled that as a
general rule, prospective extraditees are not
The Supreme Court held that what the treaty entitled to notice and hearing before the
guarantees is only equality of treatment to the issuance of arrest warrants, nor do they have
Chinese nationals “upon the same terms as the right to bail and provisional liberty while
nationals of any country”. But even supposing extradition proceedings are pending.
that the law infringes upon the said treaty, the
treaty is always subject to qualification or 9. Gonzales v. Hechanova, G.R. No. L-21897,
amendment by a subsequent law and the same October 22, 1963
may never curtail or restrict the scope of the
police power of the State. Contracts' status as executive agreements not
sufficiently established. Parties themselves did
5. Deutsche Bank v. CIR, August 19, 2013 not regard contracts as executive agreements
Even if considered executive agreements, they
Our Constitution provides for adherence to the remain subject to domestic laws.
general principles of international law as part of
the law of the land. The time-honored 10.USAFFE v. Treasurer of the Philippines, G.R.
international principle of pacta sunt servanda No. L- 10500, June 30, 1959
demands the performance in good faith of treaty
obligations on the part of the states that enter The doctrine established in this case
into the agreement. emphasizes the validity and binding nature of
executive agreements entered into by
6. Reagan v. CIR, G.R. No. L-226379, December authorized government officials without need for
27, 1969 Senate ratification. The decision also clarifies
that advances made for specific government
The court ruled that, the Philippines being expenditures remain accountable and
independent and sovereign, its authority may be returnable if not expended.
exercised over its entire domain.
11.Abaya v. Ebane, 515 SCRA 720
The conclusion is thus irresistible that the
crucial error assigned, the only one that calls for RA 9184 cannot be applied retroactively to
discussion to the effect that for income tax govern the procurement process relative to the

30
JMendoza, JD 2 - Medialdea
 CP I project because it is well settled that a law The 1987 Constitution provides that the
or regulation has no retroactive application Senate shall be composed of 24 Senators.
unless it expressly provides for retroactivity. Without a tinge of doubt, 2/3 of this figure,
or not less than 16 members, favorably
12. Bayan Muna v. Romulo, 641 SCRA 244 acting on the proposal is an unquestionable
compliance with the requisite number of
Article 2 of the Vienna Convention on the Law of votes mentioned in Section 21 of Article VII.
Treaties defines a treaty as "an international The fact that there were actually 23
agreement concluded between states in written incumbent Senators at the time the voting
form and governed by international law, whether was made, will not alter in any significant
embodied in a single instrument or in two or way the circumstance that more than two-
more related instruments and whatever its thirds of the members of the Senate
particular designation." concurred with the proposed VFA, even if
the two-thirds vote requirement is based on
Further, the Supreme Court emphasized that this figure of actual members (23). In this
international law is part of our law, and must be regard, the fundamental law is clear that
ascertained and administered by the courts of two-thirds of the 24 Senators, or at least 16
justice of appropriate jurisdiction as often as favorable votes, suffice so as to render
questions of right depending upon it are duly compliance with the strict constitutional
presented for their determination. For this mandate of giving concurrence to the
purpose, where there is no treaty and no subject treaty.
controlling executive or legislative act or judicial
decision, resort must be had to the customs and 16. Philip Morris v. CA, 224 SCRA 756
usages of civilized nations, and, as evidence of
these, to the works of jurists and commentators A foreign company has the right to sue a
who by years of labor, research, and experience Philippine business firm for an alleged
have made themselves peculiarly well trademark infringement.
acquainted with the subjects of which they treat.
Such works are resorted to by judicial tribunals, 17. Province of North Cotabato v. GRP, 568
not for the speculations of their authors SCRA 402
concerning what the law ought to be, but for the
trustworthy evidence of what the law really is. The MOA-AD provisions exceeded
constitutional boundaries by:
13. DBM v. Kolonwel Trading, 524 SCRA 591 a. Creating a sub-state (BJE) with powers
beyond constitutional autonomy;
Foreign loan agreements with international b. Granting sovereignty attributes to BJE;
financial institutions partake of an executive or c. Promising territorial concessions without
international agreement. proper authority;
d. Violating national territorial integrity; and
14. Pharmaceutical and Health Care e. Constitutional Amendment Guarantees.
Association v. Duque, G.R. No. 173034,
October 19, 2007 18. Abaya v. Ebdane, 515 SCRA 720

The ICMBS and subsequent resolutions are An “exchange of notes” is a record of a routine
merely recommendatory and legally non- agreement that has many similarities with the
binding. They are not recommendatory but are private law contract. The agreement consists
part of the general and consistent practice of of the exchange of two documents, each of the
states from a sense of obligation. If they are parties being in the possession of the one
recommendatory, these international laws are signed by the representative of the other.
called soft law or non-binding norms, principals,
and practices that influence state behavior, as It is worth noting that treaties, agreements,
opposed to hard law which are binding rules of conventions, charters, protocols, declarations,
international law. memoranda of understanding, modus vivendi,
15. Bayan v. Zamora, 342 SCRA 449 and exchange of notes all refer to international
instruments binding at international law.

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JMendoza, JD 2 - Medialdea
 19. Santos v. Northwest Airlines, G.R. No.
101538, June 23, 1992

It upheld the Warsaw Convention’s provisions,

specifically Article 28(1), which delineates
where a damage suit may be brought against
an airline, as constitutional and applicable. The
Court found the Convention’s provisions
neither arbitrary nor in violation of due process
or equal protection. It parsed the issue of
whether Article 28(1) pertains to venue or
jurisdiction, ultimately concluding that the
provision is jurisdictional. Further, it ruled that
under the Convention, jurisdiction was not
properly vested in Philippine courts as Manila
was deemed a stopover rather than the
ultimate destination based on the petitioner’s
ticket.

20. Adolfo v. CFI, 34 SCRA 166

Treaties involving substantial political issues or

changes in national policy typically require
Senate ratification, whereas executive
agreements can address more temporary or
ordinary international matters without such
legislative involvement.

32
JMendoza, JD 2 - Medialdea