PUBLIC INTERNATIONAL LAW

Nature of Public International Law

Public International Law
Law that deals with the conduct of States and International organizations,
their relations with each other and in certain circumstances, their relations with
persons, natural or juridical
HISTORY
Ancient International Law governed exchange of diplomatic emissaries, peace
treaties, etc. in the world of ancient Romans and earlier. The progressive rule of JUS
GENTIUM seen as a law common to all man became the law of the vast Roman
Empire.
Modern International Law began with the birth of nation-states in the
Medieval Age. Governing principle was derived from Roman law or Canon Law which
drew from natural law. Hugo Grotius considered father of modern International law.
What he called LAW OF THE NATIONS was later given the name INTERNATIONAL
LAW by Jeremy Bentham
The positivist approach reinterpreted International Law not on a basis of concepts
derived from reason but rather on basis of what actually happened in the conflict
between states. With the emergence of nation of sovereignty came the view of law
as commands backed up by threats of sanction. In this view, International law no
law because not from command of sovereign.
Significant milestones in development of international law:
1.) Peace of Westphalia (ending 30 year war) established a treaty based
framework for peace cooperation. (it was at this time that PACTO SUNT
SERVANDA arose)
2.) Congress of Vietnam (ending Napoleonic wars) created a system of
multilateral political and economic cooperation.
3.) Covenant of the league of Nations (including the Treaty of Versailles ending
WW1) created the Permanent Court of International Justice.
4.) Founding of UN in aftermath of WW2. Shift of power away from Europe and
beginning of truly universal institution. Universalization advanced by
decolonization which resulted in expansion of membership of UN. New states,
carrying a legacy of bitterness against colonial powers, became members.
5.) Cold war period succeeded in maintaining peace through balancing of 2 super
powers.
6.) Dissolution of Soviet Union resulting in end of Cold War with re- emergence of
International relations based on multiple sources of power and not mainly
ideology.

HUGO GROTIUS (De jure Belli Ac PacisLibriTes)

International practices, customs, rules and treaties proliferated to the point of
complexity. Several scholars sought to compile them all into organized treatises.
The most important of these was Hugo Grotius whose treatise De jure Belli Ac
PacisLibriTesis considered the starting point for modern international law. Before
Hugo Grotius, most European thinkers treated law as something independent of
mankind, with its own existence. Some laws were invented by men but ultimately
they reflected the essential natural law. Grotius was no different, except in one
important respect. Unlike the earlier, thinkers, who believed that the natural law
was imposed by a debt, Grotius believed that the natural law came from an
essential universal reason, common to all men.
This rationalist perspective enabled Grotius to posit several rational principles
underlying law. Law was not imposed from above, but rather derived from
principles. Foundation principle included the anxious the promises must be kept,
and that harming another requires a situation. These 2 principles have served as
the basis for much of subsequent international law. Apart from natural- law
principles, Grotius also dealt with international custom or voluntary law. Grotius
emphasized the importance of actual practices, customs and treaties- what is
done- as opposed to normative rules of what ought to be done. This positivist
approach to international law strengthens over time. As nations became the
predominant form of state in Europe, and their man-made laws became more
important than religious doctrines and philosophies, the law of what is similarly
became more important than the law of what ought to be.
Difference between Public International Law and Conflicts of Law
As to NATURE

Public International Law

International

Conflicts of Law
Municipal or National

It is a law of a sovereign
over those subjected to
his way

Except when embodied in

a treaty or convention,
becomes international in
character. It is a law, not a
above, but between,
sovereign states and is
therefore, a WEAKER LAW

Transactions of states
private
Part of Political Law
As to REMEDIES/
SETTLEMENT

International Modes of
Settlement
Like Negotiations, and
arbitration, reprisals and

Part of Civil Law

Local or Municipal
Tribunals through local
administrative and judicial
processes

As to SOURCE

As to PARTIES

As to ENFORCEMENT
Responsibility for violation

even war
Derived from such sources
as international customs,
international conventions
and the general principles
of law
International Entities
Applies to relations states
INTER SE and other
international persons
International Sanctions
Infractions are usually
collective in the sense
that it attaches directly to
the state and not its
nationals
Regulates the political
intercourse of nations with
each other or concerns
questions of rights
between nations

Consists mainly from the

law making authority of
each state

Private Persons
Regulates the relations of
individuals whether of the
same nationality or not
Sheriff/ Police
Generally, entails only
individual responsibility

Regulates the comity of

states in giving effect in
one to the municipal laws
of another relating to
private persons or
concerns the rights of
persons within the
territory and dominion of
one state or nations by
reason of acts, private or
public, done within the
dominion of another, and
which is based on the
broad general principle
that one country will
respect and give effect to
the laws of another so far
as can be done
consistently with its own
interests.

1. The LAWS of PEACE

a. Governs the normal relations of states
b. Human Rights Law
2. The LAWS of WAR
a. When war breaks out between or some of them

b. International Humanitarian Law

c. Laws of Armed Conflicts
3. The LAWS of NEUTRALITY
a. Those not involved in the war, however, their relatives with the
belligerents, or those involved in the war, are governed by the laws of
neutrality
THE SOURCES OF INTERNATIONAL LAW
In the absence of a centralized legislative, executive and judicial structure,
there is no single body able to legislate and there is no system of courts with
compulsive power to decide what the law is nor is there a centralized repository of
international law. Thus, theres a problem of finding out where the law is.
Nevertheless, International Law exists and there are sources where the law can be
found.
2 CLASSIFICATIONS:
1. Formal Sources:
a. The various processes by which rules come into existence (e.g.
legislation, treaty making and judicial decision making and the practice
of states)
2. Material Sources:
a. The substance and content of the obligation. They identify what the
obligations are. Also referred to as evidence of International Law
(e.g. state practice, UN resolutions, treaties, judicial decisions and
writings of jurists)
The doctrine of sources lay down conditions for verifying and ascertaining the
existence of legal principles. The conditions are observable manifestations of the
wills of the states as revealed in the processes by which norms are formed (treaty
and state practice accepted as law) The process of verification is inductive and
positivistic.
PRIMARY SOURCES
1. International Treaties and Conventions
a. Are voluntarily entered into by states and encapsulates express
obligations entered into,
2. International Customs
a. These are the consistent practice of states adopted over several
years
b. Is usually invoked where there are no treaties that exist to cover a
particular issue or situation.
c. A custom need not be worldwide as it can be limited to a region only
3. General Principles of International Law

a. These are the accepted principles of law under major legal systems
i. e.g. all states created equal
SUBSIDIARY SOURCE
4. Decisions of Courts
a. Decisions of the International Court of Justice and other international
Tribunals are given weight. Decisions of municipal or domestic courts
are given lesser weight except if they pertain to precedent-setting
cases such as the POQUETE HABANA CASE
5. Teachings of Publicists
a. The court shall apply the teachings of the most highly qualified
publicists of the various nations. As subsidiary means for the
determination of rules of law
i. Publicist: learned Writers
BASES OF INTERNATIONAL LAW
1. The Law of Nature School
a. Believes that International law is based on the rules of conduct
discoverable by every individual in his own conscience and though the
application of right reason
b. As he is bound to observe these rules without need of a formal or
external prescription, so too is the state, which is composed of
individuals.
2. Positivist School
a. Holds that international law is based on the consent of states, and on
such consent only.
b. The consent is expressed in the case of conventional law, implied in
the case of customary law, and presumed in the case of the general
principles of law
3. The Eclectic or Grotian School
a. Represents a compromise between the first 2 schools of thought and
submits that international law is binding partly because it is good and
right and partly because states have agreed to be bound by it
b. This appears to be the most widely accepted
FUNCTIONS OF INTERNATIONAL LAW
The Principal Functions are:
1. To promote international peace and security
2. To foster friendly relations among nations and to discourage the use of force
in the solution of differences among them
3. To provide for the orderly regulation of the conduct of states in their mutual
dealings
4. To insure international cooperation in the pursuit of certain common purposes
of an economic, social, cultural or humanitarian character.

BASES OF APPLYING INTERNATIONAL LAW IN LOCAL JURISDICTION

Doctrine of Incorporation
International laws are adopted as part of a states municipal law, by a general
provision or clause usually in its Constitution.
Sec. 2, Article 2, 1987 Constitution
The Philippines renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom, cooperation, and amity
with all nations
CASE: SECRETARY OF JUSTICE vs. LANTION
Facts: A possible conflict between the US-RP Extradition Treaty and Philippine Law
Issue: WON under the Doctrine of Incorporation, International Law prevails over
Municipal Law
HELD:
No, under the doctrine of Incorporation, rules of international law form part of the
law of the land and other legislative action is needed to make such rules applicable
in the domestic sphere
The doctrine of incorporation is applied whenever local courts are confronted with
situations in which there appears to be a conflict between a rule of international law
and the provisions of the local states constitution/statute.
First, efforts should first be exerted to harmonize them, so as to give effect to both.
This is because it is presumed that municipal law was enacted with proper regard
for the generally accepted principles of international law in observance of the
incorporation clause.
However, if the conflict is irreconcilable and a choice has to be made between a rule
of international law and municipal law, jurisprudence dictates that the municipal
courts should uphold municipal law.
This is because such courts are organs of municipal law and are accordingly bound
by it in all circumstances. The fact that international law was made part of the law
of the land does not pertain to or imply the primacy of international law over
national/municipal law in the municipal sphere.
The doctrine of incorporation, as applied in most countries, decrees that rules of
international law are given equal standing with but are not superior to, national
legislative enactments.

In case of conflict, the courts should harmonize both laws fisrt and if there exists an
unavoidable contradiction between them, the principle of LEX POSTERIOR DEROGAT
PRIORI-a treaty may repeal a statute and a statute may repeal a treaty- will apply.
But if these laws are found in conflict with the Constitution, these laws must be
stricken out as invalid.
In states where the constitution is the highest law of the law of the land, such as in
ours, both statutes and treaties may be invalidated if they are in conflict with the
constitution.
Supreme Court has the power to invalidate a treaty.
Section 5, Par 2(a), Article 8, 1987 Constitution:
Sec. 5. The Supreme Court shall have the following powers:
(2) Review, revise, modify, or affirm or appeal or certiorari, as the law or the Rules
of Court may provide, final judgements and orders of lower courts in:
(b) All cases in which the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree, proclamation, order,
instruction, ordinance, or regulations in question.
Doctrine Of Transformation
Requires the enactment by the legislative body of such international law
principles as are sought to be part of municipal law.
Soft Law vs. Hard. Law
Soft law means commitments made by negotiating parties that are not
legally binding.
Hard law means binding laws. To constitute law, a rule, instrument or decision
must be authoritative and prescriptive. In international law, hard law includes
self-executing treaties or international agreements, as well as customary
laws. These instruments result in legally enforceable commitments for
countries (states) and other international subjects
THEORIES DEFINING RELATIONSHIP OF INTERNATIONAL LAW WITH
DOMESTIC LAW
Theory of Monism

International law and domestic law are one legal system, but international
law is superior to the Domestic Law
It proposes that international law cannot be limited by a States Constitution.
If a conflict exists between a Domestic Law and International Law, it is
international Law which should prevail.

Theory of Dualism
International Law and Domestic Law are distinct and separate. The
application of international law is limited by the Domestic Law or the States
Constitution. It would appear that the Philippines is a dualist state.
SUBJECTS OF INTERNATIONAL LAW
The Subjects and Objects of International Law
A subject of international law is an entity with capacity of possessing
international rights and duties and of bringing international claims. This entity is
said to be an international person or one having an international personality, on the
basis of customary or general international law. (Magallona, 18-19).
A subject of Public International Law is an entity directly possessed of rights
and obligations in the international legal order, e.g. a sovereign state, such as the
Philippines. (Paras, 43).
An object of Public International Law, on the other hand, is merely indirectly
vested with rights and obligations in the international sphere, e.g. a Filipino private
citizen is generally regarded not as a subject but an object of Public International
Law because, while he is entitled to certain rights which other states ought to
respect, he usually has no recourse except to course his grievances through the
Republic of the Philippines and its diplomatic officers. (id.).
SUBJECTS:
1. State
A group of people, living together in a fixed territory, organized for political ends
under an independent government, and capable of entering into international
relations with other states.
Elements:
a.
b.
c.
d.

People
Territory
Government
Independence or Sovereignty

Doctrine of Acts of State

Every sovereign state is bound to respect the independence of every other
sovereign state, and the courts of one country, will not sit in judgement on the acts
of the government of another done with in its own territory.
2. Colonies and Dependencies

From the viewpoint of international law, they are considered as part and parcel
of the parent state through which all its external relations are transacted with other
states.
a. Colony
A dependent political community consisting of a number of citizens of the
same country who have migrated therefrom to inhabit in another country, but
remain subject to the mother state
b. Dependency
A territory distinct from the country which the supreme sovereign power
resides but belongs rightfully to it and subject to the laws and regulations which the
sovereign may prescribe
3. Mandates and Trust Territories
There are non-self governing territories which have been placed under
international supervision to insure their political, economic, social and educational
advancement.
4. The Vatican
In 1928, Italy and Vatican concluded the Lateran Treaty for the purpose of
assuring to the Holy See absolute and visible independence and of guaranteeing to
it absolute and indisputable sovereignty in the field of international relations
CASE: The Holy See vs. Rosario, Jr. Dec. 3, 1994
The Lateran Treaty established the statehood of the Vatican City "for the purpose of
assuring to the Holy See absolute and visible independence and of guaranteeing to
it indisputable sovereignty also in the field of international relations"
In view of the wordings of the Lateran Treaty, it is difficult to determine whether the
statehood is vested in the Holy See or in the Vatican City. Some writers even
suggested that the treaty created two international persons the Holy See and
Vatican City (Salonga and Yap, supra, 37).
The Vatican City fits into none of the established categories of states, and the
attribution to it of "sovereignty" must be made in a sense different from that in
which it is applied to other states.
The Vatican City represents an entity organized not for political but for ecclesiastical
purposes and international objects.

Despite its size and object, the Vatican City has an independent government of its
own, with the Pope, who is also head of the Roman Catholic Church, as the Holy See
or Head of State, in conformity with its traditions, and the demands of its mission in
the world. Indeed, the world-wide interests and activities of the Vatican City are
such as to make it in a sense an "international state"
One authority wrote that the recognition of the Vatican City as a state has
significant implication that it is possible for any entity pursuing objects
essentially different from those pursued by states to be invested with international
personality.
Inasmuch as the Pope prefers to conduct foreign relations and enter into
transactions as the Holy See and not in the name of the Vatican City, one can
conclude that in the Pope's own view, it is the Holy See that is the international
person.
The Republic of the Philippines has accorded the Holy See the status of a foreign
sovereign. The Holy See, through its Ambassador, the Papal Nuncio, has had
diplomatic representations with the Philippine government since 1957 (Rollo, p. 87).
This appears to be the universal practice in international relations.
Principles:
Article 31(a) of 1961 Vienna Convention on Diplomatic Relations
In Article 31 (a) of the 1961 Vienna convention on Diplomatic Relations, a
diplomatic envoy is granted immunity from the civil and administrative
jurisdiction of the receiving state over any real action relating to private
immovable property situated in the territory of the receiving state which the
envoy holds in behalf of the sending state for the purposes of the mission.
Articles 20-22 of 1961 Vienna Convention on Diplomatic Relations
Lateran Treaty
(1929) Pact of mutual recognition between Italy and the Vatican, signed in the
Lateran Palace, Rome. The Vatican agreed to recognize the state of Italy, with
Rome as its capital, in exchange for formal establishment of Roman
Catholicism as the state religion of Italy, institution of religious instruction in
the public schools, the banning of divorce, and recognition of papal
sovereignty over Vatican City and the complete independence of the pope. A
second concordat in 1985 ended Catholicism's status as the state religion and
discontinued compulsory religious education.
5. The United Nations (192 Nations)

International organization created at San Fransisco Conference held in the US

from April 25 to June 26, 1945. UN succeeded the League of Nations and is
governed by a charter that came into force on October 24, 1945
Official Languages of UN:

French
Russian
English
Spanish
Chinese
Arabic

Principal Purposes of UN:

1.
2.
3.
4.

Maintain international Peace and Security

Develop friendly relations among nations
Achieve international cooperation
Centre for harmonizing actions of nations for attainment of these common
goals

Structure of the UN:

a. General Assembly
Central organ which all members are represented
2/3 vote required
Carlos P. Romulo served as the President of the 4th session of General
Assembly
Functions:
i.
Supervisory
ii.
Budgetary
iii.
Constituent
iv.
Deliberative
v.
Elective
b. Security Council
Organ responsible for the maintenance of peace and security; undertakes
preventive and enforcement actions
Membership:
1. Permanent Members
China
UK
France
Russia
USA

2. Non-Permanent Members
5- from African and Asian States
2- from Latin American States
2- from Western European and Other States
1-from Eastern European States
c. Economic and Social Council
Exerts effort towards higher standards of living solutions of international
economic, social health and related problems, universal respect for and
observance of human rights and fundamental freedoms
d. Trusteeship Council
Organ charged with the administration of the International Trusteeship
System (idle Council)
e. The Secretariat
Chief administrative organ of the UN
Current Secretary General(as of 2012)- Ban Ki-Moon of South Korea(8 th
)
Secretaries-General serve for five-year terms that can be renewed
indefinitely
f.

International Court of Justice

Judicial organ of UN; world court governed by the statute which is annexed
to and made part of the UN charter
Court is composed of 15 judges, who are elected for terms of office of
nine years by the United Nations General Assembly and the Security
Council.
Election every 3 years
Peace palace in Hague, Netherlands
Must possess the qualifications reuired in their respective countries for
appointment to the highest judicial offices
CezarBengzon of SC elected to the ICJ

6. Belligerent Community
They are group of rebels under an organized civil government who
have taken up arms against legitimate government. When recognized,
considered as a separate state for purposes of conflict and entitle to all the
rights and subjected to all the obligations of a full pledged belligerent under
the laws of war.
7. International Administrative Bodies
Certain administrative bodies created by agreement among states may be
vested with international personality when 2 conditions concur:
a. Their purpose are mainly non-political
b. They are autonomous and not subject to the control of any state
i. Examples:
1. International Labour Organization
2. Food and Agricultural Organization
3. World Health Organization

CASE: SOUTHEAST ASIAN FISHERIES DEVELOPMENT CENTER-AQUACULTURE

DEPARTMENT(SEAFDEC-AQD), vs. NATIONAL LABOR RELATIONS
COMMISSION
Facts:
Southeast Asian Fisheries Development Center-Aqua Culture Department is a
department of SEAFD, an international institution formed by an international
agreement of Southeast Asian countries. Private petitioner sent a letter to private
respondent, informing him of his termination due to financial restraints of the
department. Latter was informed that he was going to receive separation pay. Upon
failure of petitioner to give separation pay, private respondent Lazaga filed a
complaint with the Labor Arbiter, which decided in favor of private respondent
amidst contention of petitioner that Labor Arbiter doesnt have jurisdiction over
them. NLRC affirmed the decision of Labor Arbiter.
Issue:
WON SEAFEC- ACD is immune from suit owing to its international character
Held:
YES, being an intergovernmental organization, SEAFDEC including its Departments
(AQD), enjoys functional independence and freedom from control of the state in
whose territory its office is located.
One of the basic immunities of an international organization is immunity from local
jurisdiction, i .e, that it is immune from the legal writs and processes issued by the
tribunals of the country where it is found. The obvious reason for this is that the
subjection of such an organization to the authority of the local courts would afford a
convenient medium thru which the host government may interfere in their
operations or even influence or control its policies and decisions of the organization;
besides, such subjection to local jurisdiction would impair the capacity of such body
to discharge its responsibilities impartially on behalf of its member-states
8. Individuals
Only as an object of international law who can act only through the
instrumentality of his own state in matters involving other states
THE CONCEPT OF STATE
ELEMENTS OF THE STATE:
1. People
It refers to the human beings living within its territory. They should be of both
sexes and sufficient in number to maintain and perpetuate themselves

Individuals of different races, languages and religion very often actually

from one people that is to say, the people of one state
Citizens, Nationals, Subjects

2. Territory
It is the fixed portion of the surface in the earth in which the people of the
state reside
A defined territory is necessary for jurisdictional reasons and in order to
provide for the needs of the inhabitants
o As a practical Requirement:
It should be big enough to be self- sufficient and small
enough to be easily administered and defended
The Terrestrial or Land Domain
It refers to the land mass on which the inhabitants live.
Modes of Acquiring Land Territory
1. Discovery and Occupation
Original mode by which territory not belonging to any state or TERRA
NULLIUS is placed under the sovereignty of the discovering state
Need not be uninhabited provided that it can be established that the
natives are not sufficiently civilized and can be considered possessing not
rights of sovereignty but only rights of habitation
o Requisites for a valid discovery and occupation
Possession
Administration
Inchoate Title of Discovery
It is acquired by the claimant state pending compliance with the
second requirement which is administration
2. Prescription
Continuous and uninterrupted possession over a long period of time, just
like in civil law.
In international law, however, there is no rule of thumb as to the length of
time needed for acquisition of territory through prescription
Grotius Doctrine if Immemorial Prescription:
Uninterrupted possession going beyond memory
3. Cession( by treaty)
Territory is transferred from 1 state to another by agreement between
them (sale, donation, barter/ exchange and testamentary disposition)
4. Subjugation

Having been previously conquered or occupied in the courses of war of the

enemy, is formally annexed to it at the end of the war, conquer alone
inchoate right since it is the formal act of annexation that complements
acquisition.
5. Accretion
Based on AccessioCedotPrincipoliaccomplished through both natural or
artificial processes as by the gradual and imperceptible deposit of soil on the
coasts of the country through the action of the water or by reclamation
projects.
Loss of Territory
a) Dereliction
o Physical withdrawal
o Abandonment
b) Cession- agreement between states
c) Conquest
d) Erosion or other natural causes
e) Prescription
f) Subjugation
g) Revolution
Doctrine of Effective Occupation
Under this doctrine, discovery of terra nullius is not enough to acquire title to
the discovered territory
The Internal Waters
Also called as National or Inland, are those found in the bodies of water within
the land mass and the waters in gulfs and bays up to the point where the territorial
waters begin.
The Maritime or Fluvial Domain
This consists of the bodies of water within the land mass and the waters
adjacent to the coasts of a state to a specified limit. Included In the maritime and
fluvial domain are the landlocked lakes, rivers, man0made canals, the waters in
certain gulfs, bays and straits, and the territorial sea.
Archipelago Doctrine
The waters around, between and connecting the islands of the archipelago,
regardless of their breadth and dimensions, form part of the internal waters of the
Philippines (2nd sentence, Article 1, 1987 Constitution)
To determine the territorial owners

 Archipelago= Pelgus which refer to the islands, a sea studded with many
island
o Kinds:
Coastal- situated close to a mainland and may be considered a
part thereof
Example: Lofien islands, Norway
Mid-ocean- situated in the ocean or such distance arising from
the coasts of frim land
Example: Philippines
United Nations Convention on the Laws of the Sea (UNCLOS)
Uniform breadth of 10 miles for the territorial sea, a contiguous zone of
18 miles from the outer limits of the territorial sea, and economic zone or
patrimonial sea extending 200 miles from the low- water mark of the
coastal
3 international Conferences have been called to formulate a new law of
the seas.
The conference have dealt with such controversial matters a the breadth
of the territorial seas, use of straits for international navigation,
continental shelf, concept of an exclusive economic zone, freedom of the
high seas, status of archipelagos and regime of islands.
o 1st conference: held in 1956-58 at Geneva Switzerland
o 2nd Conference: held in 1960 at Geneva Switzerland
o 3rd conference: held in 1970 by the UN which resulted in the
adoption of a new convention of the Law of the Sea and became
effective on: November 16, 1994, signed in Jamaica, 119 out of
150 conference-states

Case : Magallona v Ermita

United Nations Convention on the Law of the Sea (UNCLOS III);
UNCLOS III has nothing to do with the acquisition or loss of territory.
UNCLOS III has nothing to do with the acquisition (or loss) of
territory. It is a multilateral treaty regulating, among others, seause rights over maritime zones (i.e., the territorial waters [12
nautical miles from the baselines], contiguous zone [24 nautical
miles from the baselines], exclusive economic zone [200 nautical
miles from the baselines]), and continental shelves that UNCLOS III
delimits. UNCLOS III was the culmination of decades-long
negotiations among United Nations members to codify norms
regulating the conduct of States in the worlds oceans and
submarine areas, recognizing coastal and archipelagic States
graduated authority over a limited span of waters and submarine
lands along their coasts.

 Archipelagic Baselines of the Philippines (Republic Act No. 9522);

Baselines laws such as RA 9522 are enacted by United Nations
Convention on the Law of the Sea (UNCLOS III) States parties to
mark-out specific basepoints along their coasts from which
baselines are drawn, either straight or contoured, to serve as
geographic starting points to measure the breadth of the maritime
zones and continental shelf.Baselines laws such as RA 9522 are
enacted by UNCLOS III States parties to mark-out specific
basepoints along their coasts from which baselines are drawn,
either straight or contoured, to serve as geographic starting points
to measure the breadth of the maritime zones and continental
shelf. Article 48 of UNCLOS III on archipelagic States like ours could
not be any clearer: Article 48. Measurement of the breadth of the
territorial sea, the contiguous zone, the exclusive economic zone
and the continental shelf.The breadth of the territorial sea, the
contiguous zone, the exclusive economic zone and the continental
shelf shall be measured from archipelagic baselines drawn in
accordance with article 47. (Emphasis supplied)
Same; Baselines laws are nothing but statutory mechanisms for
United Nations Convention on the Law of the Sea (UNCLOS III)
States parties to delimit with precision the extent of their maritime
zones and continental shelves.Baselines laws are nothing but
statutory mechanisms for UNCLOS III States parties to delimit with
precision the extent of their maritime zones and continental
shelves. In turn, this gives notice to the rest of the international
community of the scope of the maritime space and submarine
areas within which States parties exercise treaty-based rights,
namely, the exercise of sovereignty over territorial waters (Article
2), the jurisdiction to enforce customs, fiscal, immigration, and
sanitation laws in the contiguous zone (Article 33), and the right to
exploit the living and non-living resources in the exclusive
economic zone (Article 56) and continental shelf (Article 77).
Same; RA 9522 increased the Philippines total maritime space by
145,216 square nautical miles.Petitioners assertion of loss of
about 15,000 square nautical miles of territorial waters under RA
9522 is similarly unfounded both in fact and law. On the contrary,
RA 9522, by optimizing the location of basepoints, increased the
Philippines total maritime space (covering its internal waters,

territorial sea and exclusive economic zone) by 145,216 square

nautical miles.
United Nations Convention on the Law of the Sea (UNCLOS III);
Congress decision to classify the Kalayaan Island Group (KIG) and
the Scarborough Shoal as Regime[s] of Islands manifests the
Philippine States responsible observance of its pacta sunt
servanda obligation under UNCLOS III.Far from surrendering the
Philippines claim over the KIG and the Scarborough Shoal,
Congress decision to classify the KIG and the Scarborough Shoal as
Regime[s] of Islands under the Republic of the Philippines
consistent with Article 121 of UNCLOS III manifests the Philippine
States responsible observance of its pacta sunt servanda
obligation under UNCLOS III. Under Article 121 of UNCLOS III, any
naturally formed area of land, surrounded by water, which is
above water at high tide, such as portions of the KIG, qualifies
under the category
Same; The recognition of archipelagic States archipelago and the
waters enclosed by their baselines as one cohesive entity prevents
the treatment of their islands as separate islands under UNCLOS III.
The recognition of archipelagic States archipelago and the
waters enclosed by their baselines as one cohesive entity prevents
the treatment of their islands as separate islands under UNCLOS III.
Separate islands generate their own maritime zones, placing the
waters between islands separated by more than 24 nautical miles
beyond the States territorial sovereignty, subjecting these waters
to the rights of other States under UNCLOS III.
Same; United Nations Convention on the Law of the Sea (UNCLOS
III) creates a sui generis maritime spacethe exclusive economic
zonein waters previously part of the high seas.UNCLOS III
favors States with a long coastline like the Philippines. UNCLOS III
creates a sui generis maritime spacethe exclusive economic zone
in waters previously part of the high seas. UNCLOS III grants new
rights to coastal States to exclusively exploit the resources found
within this zone up to 200 nautical miles. UNCLOS III, however,
preserves the traditional freedom of navigation of other States that
attached to this zone beyond the territorial sea before UNCLOS III.

 Same; Absent an United Nations Convention on the Law of the Sea

(UNCLOS III) compliant baselines law, an archipelagic State like the
Philippines will find itself devoid of internationally acceptable
baselines from where the breadth of its maritime zones and
continental shelf is measured.Absent an UNCLOS III compliant
baselines law, an archipelagic State like the Philippines will find
itself devoid of internationally acceptable baselines from where the
breadth of its maritime zones and continental shelf is measured.
This is recipe for a two-fronted disaster: first, it sends an open
invitation to the seafaring powers to freely enter and exploit the
resources in the waters and submarine areas around our
archipelago; and second, it weakens the countrys case in any
international dispute over Philippine maritime space. These are
consequences Congress wisely avoided.
FACTS: The antecedent facts of this case emerged upon the
passing of Republic Act 3046 in 1961. The laws purpose is to
demarcate the maritime baselines of the Philippines as it was deemed to be
an archipelago. RA 3046 stood unchallenged until 2009, when Congress
amended it and passed RA 9522. This amending law shortened one baseline
and determined new base points of the archipelago. Moreso, it has identified
the Kalayaan Island Group and the Scarborough Shoal, as "regimes of
islands", generating their own maritime zones. The petitioners filed a case
assailing the constitutionality of RA 9522. To their opinion, the law has
effectively reduced the maritime territory of the country. With this, Article I of
the 1987 Constitution will be violated. The petitioners also worried that that
because of the suggested changes in the maritime baselines will allow for
foreign aircrafts and vessels to traverse the Philippine territory
freely. In effect, it steps on the states sovereignty and national
security. Meanwhile, the Congress insisted that in no way will the
amendments affect any pertinent power of the state. It also deferred to
agree that the law impliedly relinquishes the Philippines claims over Sabah.
Lastly, they have questioned the normative force of the notion that all the
waters within the rectangular boundaries in the Treaty of Paris. Now, because
this treaty still has undetermined controversies, the Congress believes that in
the perspective of international law, it did not see any binding obligation to
honor it. Thus, this case of prayer for writs of certiorari and prohibition is filed
before the court, assailing the constitutionality of RA 9522.
Held: The Court dismissed the case. It upheld the constitutionality of the
law and made it clear that it has merely demarcated the countrys
maritime zones and continental shelves in accordance to UNCLOS
III. Secondly, the Court found that the framework of the regime of islands
suggested by the law is not incongruent with the Philippines enjoyment

of territorial sovereignty over the areas of Kalayaan Group of Islands and

the Scarborough. Third, the court reiterated that the claims over Sabah
remained even with the adoption of the amendments. Further, the Court
importantly stressed that the baseline laws are mere mechanisms for the
UNCLOS III to precisely describe the delimitations. It serves as a notice to the
international family of states and it is in no way affecting or producing any
effect like enlargement or diminution of territories. With regard to the
petitioners assertion that RA 9522 has converted the internal
waters into archipelagic waters, the Court did not appear to be
persuaded. Instead, the Court suggested that the political branches
of Government can pass domestic laws that will aid in the competent
security measures and policies that will regulate innocent passage. Since the
Court emphasized innocent passage as a right based on customary law, it
also believes that no state can validly invoke sovereignty to deny a right
acknowledged by modern states. In the case of archipelagic states such as
ours, UNCLOS III required the imposition of innocent passage as a concession
in lieu of their right to claim the entire waters landward baseline. It also made
it possible for archipelagic states to be recognized as a cohesive entity under
the UNCLOS III.
Archipelago Doctrine
Prof. Merlin M. Magallona, Et. Al. V. Hon. Eduardo Ermita, Et. Al., G.R. No.
187167, August 6, 2011
This merely emphasizes the unity of lands and waters. It is a body of waters
interconnected with other natural features. Under the United Nation Convention on
the Law of Sea (UNCLOS), it consists of drawing imaginary baseline connecting the
outermost islands of the archipelago in which all internal waters and
islands are considered as one integrated whole. An archipelago is defined as
a group of islands, interconnecting waters and other natural features which are so
closely interrelated that such islands, waters and natural features form an intrinsic
geographical, economical and political entity, or which historically been regarded as
such.
Correlate this doctrine to the right of innocent of passage, right of arrival under
stress and UNCLOS requiring the designation of archipelagic seaways so that foreign
vessels may pas through an archipelago.
xxx The waters around, between and connecting the islands of the
archipelago, regardless of their breadth and dimensions, form part of the
internal waters of the Philippines.
This second sentence of Article I is not the Archipelago Doctrine. This is only our
restatement/reaffirmation of our adherence to the Archipelago Doctrine simply
because we are an archipelago consisting of 7,107 islands. It is essential for our
national survival that we adhere to the archipelago principle.

Is the Spratlys Group of Islands part of the Philippine Archipelago?

A: NO!
Spratlys Group of Islands [a.k.a Kalayaan Island Group or KIG] is not part of the
Philippine
Archipelago because it is too far away from the three main islands of the
Philippines. It is found, geographically, almost in the middle of the South China
Sea. Historically, when we talk about the Philippine Archipelago, we refer to those
islands and waters that were ceded by the Spain to the United States by virtue of
theTreaty of Paris in 1898, and that did not include the Spratlys Group of Islands yet.
Under the treaty, the islands that were ceded by Spain were identifiedthe main
islandsLuzon, Visayas and Mindanao. Clearly, it did not include the Spratlys Group
of Islands.
Spratlys Group of Islands was only discovered sometime in the 1950s by a Filipino,
Tomas Cloma. The latter waived his rights over the islands in favor of the Philippine
Government. In effect, the government stepped into the shoes of the discoverer.
What then President Marcos did the moment Tomas Cloma waived his rights over
the Spratlys Group of Islands, is to have the islands immediately occupied by
Philippine troops. He then issued PD 1596, constituting the Spratlys Group of Islands
as a regular municipality claiming it the Municipality of Kalayaan placing it under
the Province of Palawan, and then he had the elections immediately held in the
islands so from that time on until now, we continue to hold elections there. The
Philippine exercises not only jurisdiction but also sovereignty over the Spratlys
Group of Islands, yet it is not part of the Philippine Archipelago. Geographically, it is
too far away from the Philippine Archipelago.
On May 20, 1980, the Philippines registered its claim with the UN Secretariat.The
Philippin claim to the islands is justified by reason of history,
indispensable need, and effective occupation and control. Thus, in
accordance with international law, the Spratlys Group of islands is subject to
the sovereignty of the Philippines.
Is the Spratlys group of Islands part of our National Territory?
A: YES.
The Spratlys Group of islands falls under the second phrase of Article I of the
Philippine Constitution and all other territories over which the Philippines has
sovereignty or jurisdiction. It is part of our national territory because the
Philippines exercise sovereignty (through the election of public officials) over
Spratlys Group of Islands.
What was the basis of the Philippines claim over the Spratlys?
A: Through the discovery of Tomas Cloma and by an effective occupation. (Prof.
Magallona, supra) PD 1596, June 11, 1978 constituting the Spratlys Group of
Islands as a regular municipality claiming it the Municipality of Kalayaan, placing
it under the Province of Palawan.

(1) RA 9522's Use of the Framework of Regime of Islands to

Determine the Maritime Zones of the KIG and the Scarborough Shoal
- not Inconsistent with the Philippines' Claim of Sovereignty Over
these Areas. Further, petitioners' argument that the KIG now lies outside
Philippine territory because the baselines that RA 9522 draws do not enclose
the KIG is negated by RA 9522 itself. Section 2 of the law commits to text the
Philippines' continued claim of sovereignty and jurisdiction over the KIG and
the Scarborough Shoal:
SEC. 2. The baselines in the following areas over which the Philippines likewise
exercises sovereignty and jurisdiction shall be determined as "Regime of
Islands" under the Republic of the Philippines consistent with Article 121 of the
United Nations Convention on the Law of the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596
and
b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)
Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the
Philippine archipelago, adverse legal effects would have ensued. The Philippines
would have committed a breach of two provisions of UNCLOS III. First, Article 47 (3)
of UNCLOS III requires that "[t]he drawing of such baselines shall not depart to any
appreciable extent from the general configuration of the archipelago." Second,
Article 47 (2) of UNCLOS III requires that "the length of the baselines shall not
exceed 100 nautical miles," save for three per cent (3%) of the total number of
baselines, which can reach up to 125 nautical miles.
Although the Philippines has consistently claimed sovereignty over the KIG and the
Scarborough Shoal for several decades, these outlying areas are located at an
appreciable distance from the nearest shoreline of the Philippine archipelago, such
that any straight baseline loped around them from the nearest basepoint will
inevitably "depart to an appreciable extent from the general configuration of the
archipelago."
(2) Statutory Claim Over Sabah under RA 5446 - Retained
Petitioners' argument for the invalidity of RA 9522 for its failure to textualize the
Philippines' claim over Sabah in North Borneo is also untenable. Section 2 of RA
5446, which RA 9522 did not repeal, keeps open the door for drawing the baselines
of Sabah: Section 2. The definition of the baselines of the territorial sea of the
Philippine Archipelago as provided in this Act is without prejudice to the
delineation of the baselines of the territorial sea around the territory of
Sabah, situated in North Borneo, over which the Republic of the
Philippines has acquired dominion and sovereignty.
REPUBLIC ACT No. 3046 (as amended by RA 5446) AN ACT DEFINE THE
BASELINES OF THE TERRITORIAL SEA OF THE PHILIPPINES.
Republic Act No. 5446 (as amended by R.A. 9522) AN ACT TO AMEND
SECTION ONE OF REPUBLIC ACT NUMBERED THIRTY HUNDRED AND FORTYSIX, ENTITLED "AN ACT TO DEFINE THE BASELINES OF THE TERRITORIAL
SEA OF THE PHILIPPINES"

Straight Baseline Method

Drawn connections selected points on the coast without appreciable
departure from the general shape of the coast
Thalweg Doctrine
For boundary rivers, in the absence of an agreement between the riparian
states, the boundary line is laid on the middle of the main navigable channel.
Middle of the Bridge Doctrine
Where there is a bridge over a boundary river, the boundary line is the middle
or center of the bridge.

Bays and Gulfs

o A bay is a well-marked indention in the coast the area of which at least
is as large or larger than, that of the semi- circle whose diameter is a
line drawn across its mouth. Also referred to as the juridical bay
Strait
o Narrow passageways connecting two bodies of water. If the distance
between the 2 opposite coast is not more than six miles, they are
considered internal.
Canals

Territorial Sea
The belt of the sea located between the coast and internal waters of the coastal
state on the one hand and the high seas on the other, extending up to 12 nautical
miles from the low water mark or in case of archipelagic state, from the baseline.
Philippine Territorial Sea
Based on historic rights or title or as it is often called the treaty limits
theory
o 3 mile limit rule
Doctrine of Right of Innocent Passage
Means navigation through the terrirorial seas of a state for the purpose of
traversing that seas without entering internal waters or of proceeding to internal
waters, or making for the high seas from internal waters, as long as it is not
prejudicial to the peace, public good order or security of the coastal state.
Applicable only on passage on territorial sea and not to internal waters.
Point of passage is important
Involuntary entrance may be due to the following:
1. Lack of provisions

2. Unseaworthiness of the vessel

3. Increment weather
4. Other cases of force majeure like pursuit of pirates
Territorial sea vs. Internal waters of the Philippines
Territorial sea higheas up to 12 nautical miles
Internal waters- all waters internal such as canals
CASE: Portugal vs. India
It was common ground between the Parties that during the British and post-British
periods the passage of private persons and civil officials had not been subject to
any restrictions beyond routine control. Merchandise other than arms and
ammunition had also passed freely subject only, at certain times, to customs
regulations and such regulation and control as were necessitated by considerations
of security or revenue. The Court therefore concluded that, with regard to private
persons, civil officials and goods in general there had existed a constant and
uniform practice allowing free passage between Daman and the enclaves, it was, in
view of all the circumstances of the case, satisfied that that practice had been
accepted as law by the Parties and had given rise to a right and a correlative
obligation.
As regards armed forces, armed police and arms and ammunition, the position was
different.
As regards arms and ammunition, the Treaty of 1878 and rules framed under the
Indian Arms Act of 1878 prohibited the importation of arms, ammunition or military
stores from Portuguese India and its export to Portuguese India without a special
licence. Subsequent practice showed that this provision applied to transit between
Daman and the enclaves.
The finding of the Court that the practice established between the Parties had
required for the passage of armed forces, armed police and arms and ammunition
the permission of the British or Indian authorities rendered it unnecessary for the
Court to determine whether or not, in the absence of the practice that actually
prevailed, general international custom or general principles of law recognized by
civilized nations, which had also been invoked by Portugal, could have been relied
upon by Portugal in support of its claim to a right of passage in respect of these
categories. The Court was dealing with a concrete case having special features:
historically the case went back to a period when, and related to a region in which,
the relations between neighbouring States were not regulated by precisely
formulated rules but were governed largely by practice: finding a practice clearly
established between two States, which was accepted by the Parties as governing
the relations between them, the Court must attribute decisive effect to that
practice. The Court was, therefore, of the view that no right of passage in favour of
Portugal involving a correlative obligation on India had been established in respect
of armed forces, armed police and arms and ammunition.

The Court found that the events which had occurred in Dadra on 21-22 July 1954
and which had resulted in the overthrow of Portuguese authority in that enclave had
created tension in the surrounding Indian district, having regard to that tension, the
Court was of the view that India's refusal of passage was covered by its power of
regulation and control of the right of passage of Portugal.
Contiguous Zone
This refers to the waters beyond the territorial seas but not in excess of 12
miles from the outer limits of the territorial sea over which the coastal state
exercises a protective jurisdiction to prevent the punish infringements of its
customs, fiscal immigration or sanitary regulations (1982 Convention on the Sea)
Exclusive Economic Zone
It is that expanse of the sea extending 200 nautical miles from the coast or
baselines of the state over which it asserts exclusive jurisdiction and ownership over
all living and non-living resources found therein.

Contiguous
12 nautical miles from territorial sea
Not a territory but state may exercise
limited jurisdiction over it to prevent
infringement of customs, fiscal
immigration or sanitary regulations

Exclusive Economic Zone

200 nautical miles from the baseline
Exclusive for economic

Continental Shelf
It is the seabed and subsoil of the submarine areas that extend beyond its
territorial sea throughout the natural prolongation of its land territory to the outer
edge of the continental margin, or to a distance of 200 nautical miles from the
baselines from which the breadth of the territorial sea is measured where the outer
edge of the continental margin does not extend up to that distance (Art. 76, par.1,
UNCLOS)
High Seas
It is treated as RES COMMUNES or RE NULLIUS, and thus, are not territory of a
particular state. These are the waters which do not constitute the internal waters,
archipelagic waters, territorial sea and exclusive economic zone of a state. They are
beyond the jurisdiction and sovereign rights of States.
Res Nullius
Res Communes
Freedom of Navigation

Flag State

Flag Navigation

Refers to the authority under which a

country exercises regulatory control over
commercial vessels which is registered
under its flag

A vessel which is registered in a foreign

country for convenience
The flag is different from the nationality
of the owner

THE PHILIPPINE TERRITORY

Philippine Baseline Laws
1. Normal Baseline Method
a. Drawn from the low water mark of the coast, to the breadth claimed,
following its sinuousness and curvatures but excluding the internal
waters in the bays and gulfs
2. Straight Baseline Method
a. Joining appropriate points may be employed in drawing the baseline
from which the breadth of the territorial seas is measured. (Art. 7
UNCLOS)
Baseline Law
1961 RA. 7046
5446- overlapping zone on Malaysia
9522- They ceded to own some islands which are not suitable for economic
zone
Tomas Cloma
o A Filipino adventurer and fishing magnate who discovered Kalayaan
Island
o 1956 Cloma declared separate government from the Philippines
o Cloma sold it to the Philippines during the Marcos Regime for P1 only
Treaty of Paris
o For $20M, Spain sold the Philippines to US on December 10, 1898
Treaty of Washington
o For $100K for the acquisition of the islands not included in the Treaty of
Paris Nov. 7, 1900
US- Britain
o January 2, 1930 for the Acquisition of the islands in the South (Sulu,
tawi-tawi)
Marcos Issued PD 1956 creating kalayaan as a province of Palawan
Treaty of Annexation
o Making the Hawaii part of the US
3. Government

Defined as the agency through which the will of the state is formulated,
realized and expressed.
In International law, it is the instrumentality that represents the state in its
dealings with other international persons. The state can assert rights, and is held
responsible, through its government.
De Jure- A government in accordance of the law
De Facto- A government not in accordance with the law
FORMS OF GOVERNMENT
A form of Government, or form of state of governance, refers to the set of
political institutions by which a government of a state is organized in order to exert
its powers over a house in the congress body politic. Synonyms include regime
type and system of government.
1. Democracy (Ruled by Majority)
It is best described by Abraham Lincoln as a form of government that is of the
people, by the people and for the people. It is a form of government, which allows
people to choose the representatives amongst themselves who are given the
rights to form the government. A democracy usually has a standard Constitution
that confers certain rights of freedom and expression (and many other rights) to its
citizens and expects certain duties from them and a uniform law to govern the
entire nation.
Direct or Pure Democracy
One in which the will of the State is formulated or expressed directly and
immediately through the people in a mass meeting or primary assembly.
Indirect, Representative or Republican Democracy
One in which the will of the state is formulated and expressed through the
agency of a relatively small and select body of persons chosen by the people to act
as their representatives.
2. Aristocracy
One in which political power is exercised by a few privileged class
3. Monarchy
Monarchies are one of the oldest political system known, developing from
tribal structure with one person the absolute ruler
Monarchy implies rule or the power of government in the hands of a
individual who has inherited the role and expects to bequeath it to the descendants.
Currently there exist 31 monarchs reigning over 45 extant sovereign monarchies in

the world, 16 of which are Commonwealth Realms that formally recognize Queen
Elizabeth II as their head of state and Prince Charles as heir.
Kinds of Monarchy:
Absolute monarchy- one in which the ruler by divine right
Limited monarchy- one in which the ruler rules in accordance with the
constitution
4. Presidential
One in which the state makes the executive constitutionally independent of
the legislature as regards his policies and acts
5. Parliamentary
One in which the state confers upon the legislature the power to terminate
the tenure of office of the real executive
6. Unitary
One in which the control of national and local is exercised by the central or
national government
7. Federal
One in which the powers of government are divided between 2 sets of
organs, one for national affairs and the other for local affairs.

The politics of the Philippines takes place in an organized framework of

presidential, representative and democratic republic whereby the president is
both the head of state and the head of government within a pluriform
multiparty system. This system revolves around 3 branches: the legislative
branch (law-making body), the executive branch (law- enforcing body) and
the judicial branch (the law- interpreting body).

Executive power is exercised by the government under the leadership of the

president
Legislative power is vested both the government and the 2 chamber
congress- The Senate (the upper chamber) and the House of Representative
(the lower chamber
Judicial power is vested in the courts with the Supreme Court of the
Philippines as the highest judicial body
Despotism
It is the form of rule wherein a single leader rulers the entire population and
all his or her subjects are considered to be his or her slaves. The Pharaoh of Egypt is

an example of this sort of rule. In case of contemporary contention, the term implies
tyrannical rule.
Dictatorship
Implies rule by an individual who has complete power over the country.
Although there have been several definitions of dictatorship, broadly all the various
types and forms of dictatorship tend to exhibit totalitarian characteristics. When the
power of the government does not come from the people, is unlimited and tends to
expand their scope of powers to control every aspect of peoples life, the form can
be termed a dictatorship.
Oligarchy (Rule by Few)
It is the form of government where a small group has the power to govern or
rule. Aristotle had coined the term oligarchy as synonym for rule by the rich (which
is known as plutocracy) oligarchy now simply refers to rule of the privileged few.
Plutocracy
Refers to form of government, which is run by the rich. A plutocracy is a form
of government, which is controlled by a group of extremely wealthy individuals. In
todays world many political analyistaruge there are still some siturations in which
private corporations and wealthy individuals have a strong hold over the
government, which can be synonymous with plutocracy
Communist Government
It is a form of Government in which the state is governed by a one-party
system. This form of government works on the lines of Marxism- Leninism. Thus, the
state and the communist party claim to act in accordance to the wishes of the
working class or the peasantry. Although a communist government claims to
implement democratic dictatorship of the proletariat, it tends to incline towards the
abolition of the state and implementation of communism.
RECOGNITION
Definition
It is an act by which a state acknowledges the existence of another state,
government or belligerent community and indicates willingness to deal with the
entity as such under the rules of international law.
DOCTRINES ON RECOGNITION OF GOVERNMENT
1. Wilson/ Tobar Doctrine

Precludes recognition of government established by revolution, civil war, coup

dtat or other forms of internal violence until the freely elected representative
of the people have organized a constitutional government
2. Estrada Doctrine
Dealing or not dealing with the government established through political
upheaval is not a judgement on the legitimacy of the said government (Mexican
Minister Genaro Estrada)
3. Stimson Doctrine
Precludes recognition of any government established as a result of external
aggression (US Sec of State Henry Lewis Stimson)
EFFECTS OF RECOGNITION OF A STATE OR GOVERNMENT
1.
2.
3.
4.

Diplomatic relations
Right to sue in courts of recognizing state
Right to possession of properties of predecessor on the recognizing state
All acts of the recognized state or government are validated retroactively;
preventing the recognizing state from passing upon their legality in its own
courts. (Act of State Doctrine)

PRACTICAL CRITERIA FOR RECOGNITION OF A GOVERNMENT

1. it has control of the administrative machinery of the state with popular
acquiescence; and
2. It is willing and able to comply with its international obligations
KINDS OF RECOGNITION OF GOVERNMENT

De Jure Recognition

De Facto Recognition

Relatively permanent

Provisional(duration of armed struggle)

Vests title to properties of government

abroad

Does NOT vest title to properties of

government abroad

Brings about full diplomatic relations

Limited to certain juridical relations

4. Sovereignty
Supreme and uncontrollable power inherent in a State by which that State is
governed.
The government possesses full control over its own affairs within a territorial
geographic area or limit

CASE: North cotabato vs. GRP gr no. 183591

FACTS: The Memorandum of Agreement on the Ancestral Domain (MOA-AD)

brought about by the Government of the republic of the Philippines (GRP) and the
Moro Islamic Liberation Front (MILF) as an aspect of Tripoli Agreement of Peace in
2001 is scheduled to be signed in Kuala Lumpur, Malaysia.
This agreement was petitioned by the Province of North Cotabato for Mandamus
and Prohibition with Prayer for the Issuance of Writ of Preliminary Injunction and
Temporary Restraining Order. The agreement mentions "Bangsamoro Juridical
Entity" (BJE) to which it grants the authority and jurisdiction over the Ancestral
Domain and Ancestral Lands of the Bangsamoro; authority and jurisdiction over all
natural resources within internal waters. The agreement is composed of two local
statutes: the organic act for autonomous region in Muslim Mindanao and the
Indigenous Peoples Rights Act (IPRA).
ISSUE: Whether or not the GRP violated the Constitutional and statutory provisions
on public consultation and the right to information when they negotiated and
initiated the MOA-AD and Whether or not the MOA-AD brought by the GRP and MILF
is constitutional

HELD:GRP violated the Constitutional and statutory provisions on public

consultation and the right to information when they negotiated and initiated the
MOA-AD and it are unconstitutional because it is contrary to law and the provisions
of the constitution thereof.
REASONING: The GRP is required by this law to carry out public consultations on
both national and local levels to build consensus for peace agenda and process and
the mobilization and facilitation of peoples participation in the peace process.

Sec. 7. The right of people on matters of public concern shall be recognized, access
to official records and to documents and papers pertaining to official acts,
transactions, or decisions, as well as to government research data used as basis for
policy development shall be afforded the citizen, subject to such limitations as may
be provided by law.
Article II
Sec. 28. Subject to reasonable conditions prescribed by law , that state adopts and
implements a policy of full public disclosure of all its transactions involving public
interest.

LGC (1991), require all national agencies and officers to conduct periodic
consultations. No project or program be implemented unless such consultations are
complied with and approval mus be obtained.

ARTICLE XVII (AMENDMENTS OR REVISIONS)

Section 1. Any amendment to, or revision of, this Constitution may be proposed by:
1. The Congress, upon a vote of three-fourths of all its Members; or
2. A constitutional convention.
Section 4. Any amendment to, or revision of, this Constitution under Section 1
hereof shall be valid when ratified by a majority of the votes cast in a plebiscite
which shall be held not earlier than sixty days nor later than ninety days after the
approval of such amendment or revision.

MOA-AD states that all provisions thereof which cannot be reconciled with the
present constitution and laws shall come into force upon signing of a
comprehensive compact and upon effecting the necessary changes to the legal
framework. The presidents authority is limited to proposing constitutional
amendments. She cannot guarantee to any third party that the required
amendments will eventually be put in place nor even be submitted to a plebiscite.
MOA-AD itself presents the need to amend therein.

KINDS OF SOVEREIGNTY:
1. Internal Supreme Authority of a state within its territory (Police Power)
2. External- Does not have any force in foreign territory

Q: Is Sovereign absolute?
A: In domestic sphere- YES!
In International sphere- NO!

CASE:Tanadavs Angara, 272 SCRA 18, May 2, 1997

While sovereignty has traditionally been deemed absolute and all-encompassing on

the domestic level, it is however subject to restrictions and limitations voluntarily
agreed to by the Philippines, expressly or impliedly, as a member of the family of
nations
By the doctrine of incorporation, the country is bound by generally accepted
principles of international law, which are considered to be automatically part of our
own laws. One of the oldest and most fundamental rules in international law
is pactasuntservanda international agreements must be performed in good faith.
"A treaty engagement is not a mere moral obligation but creates a legally binding
obligation on the parties . . . A state which has contracted valid international
obligations is bound to make in its legislations such modifications as may be
necessary to ensure the fulfillment of the obligations undertaken."
By their voluntary act, nations may surrender some aspects of their state power in
exchange for greater benefits granted by or derived from a convention or pact. After
all, states, like individuals, live with coequals, and in pursuit of mutually covenanted
objectives and benefits, they also commonly agree to limit the exercise of their
otherwise absolute rights.
The sovereignty of a state therefore cannot in fact and in reality be considered
absolute. Certain restrictions enter into the picture: (1) limitations imposed by the
very nature of membership in the family of nations and (2) limitations imposed by
treaty stipulations. As aptly put by John F. Kennedy, "Today, no nation can build its
destiny alone. The age of self-sufficient nationalism is over.
Thus, when the Philippines joined the United Nations as one of its 51 charter
members, it consented to restrict its sovereign rights under the "concept of
sovereignty as auto-limitation."
The Philippines has effectively agreed to limit the exercise of its sovereign powers of
taxation, eminent domain and police power. The underlying consideration in this
partial surrender of sovereignty is the reciprocal commitment of the other
contracting states in granting the same privilege and immunities to the Philippines,
its officials and its citizens.
The point is that, as shown by the foregoing treaties, a portion of sovereignty may
be waived without violating the Constitution, based on the rationale that the
Philippines "adopts the generally accepted principles of international law as part of
the law of the land and adheres to the policy of . . . cooperation and amity with all
nations."
EFFECT OF CHANGE OF SOVEREIGNTY

The effect is that the political laws of the former sovereign are merely
suspended but abandoned. As they regulate the relations between the ruler and the
rules, these laws fall to the ground ipso facto unless they are retained or re-enacted
by positive act of the sovereign.
Non- political law, by contrast, continues in operation, for the reason also that
they regulate private relations only, unless they are changed by the new sovereign
or are contrary to its institutions.
RECOGNITION OF STATES
Theories on Recognition of States
1. Declaratory School
a. Merely affirms an existing fact like the possession by the state of the
essential elements
b. Discretionary and political
2. Constitutive School
a. It is the act of recognition that constitutes the entity into an
international person
b. Compulsory and legal
c. May be compelled once the elements of a state are established
BELLIGERANCY
The status of parties legally at war ( e.i. between nations or if in civil war,
government treats other as sovereign power)
Effects of belligerency: relations of warring parties determined by laws of war,
granting of belligerency rights. Neutral nations abstain from taking sides.
CONDITIONS RECOGNITION OF BELLIGERENCY
1. There must be an organized civil government directing the rebel forces;
2. The rebels must occupy a substantial portion of the territory of the state;
3. The confl ict between the legitimate government and the rebels must
be serious, making the outcome uncertain; and
4. The rebels must be willing and able to observe the laws of war.
EFFECTS OF RECOGNITION OF BELLIGERENCY

1. Responsibility for the acts of rebels resulting to inquiry to nationals of

recognizing state shall be shifted to rebel government
2. The legitimate government recognizing the rebels as belligerents shall
observe laws or customs of war in conducting hostilities
3. Third states recognizing belligerency should maintain neutrality
Recognition is only provisional and only for purposes of hostilities
The Principle of State Continuity
It means that the legal existence of a state continues notwithstanding
changes in the size of its population or territory or in the form or leadership of its
government as long as the four essential elements of statehood are retained.
Creation of New State
I.
II.
III.
IV.
V.
VI.

By
By
By
By
By
By

Revolution (Philippines)
peaceful acquisition of independence(Malaysia)
unification of Several (Italy)
Secession (Bangladesh )
Agreement (Netherlands)
attainment of Civilization (Japan)

Extinction of the State

I.
II.
III.
IV.
V.
VI.
VII.

Overthrow of government resulting to anarchy (Yugoslavia)

Emigration on masses of its population (Timbuktu)
Annexation (Vietnam)
Merger or Unification (Germany)
Dismemberment (Yugoslavia)
Dissolution
Partial Loss of Independence (Hawaii)

FUNDAMENTAL RIGHTS OF STATES

1. Right to Existence and Self-Defense
a. Most comprehensive as all the rights of state flow from it
b. State may take measures including the use of force as may be
necessary to counteract any danger to its existence
Aggression
The use of armed force by a state against the sovereignty, territorial integrity
or political independence of another State or in any other manner inconsistent with
the Charter of the United Nations as set out in this definition
ACTS OF AGRESSION
I.
II.

Invasion or attack of a state

Bombardment of state

III.
IV.
V.
VI.

Blockade of ports or coasts

Use of armed forces within a state in contravention to any agreement
Action of state in allowing its territory for an act of aggression against a third
state
Sending of armed groups or mercenaries which carry an act of armed force
against another state

REQUISITE FOR PROPER EXERCISE OF RIGHT OF SELF-DEFENSE

a. Armed attack
b. Self-defensive action taken by the attacked state must be reported
immediately to the Security Council
c. Such action shall not in any way affect the right of the Security Council to take
at any time action as it deems necessary to maintain or restore international
peace and security
Collective Self- Defense
Right of state to come to the defense of a state whose situation meets the
condition of legitimate individual self-defense under the UN Charter
Abatement Doctrine
When conditions in the territory of a neighbouring state might result in
anarchy of disorder and the authorities of the state are unable to restore order and
prevents spinning over the territory of another the latter has the duty to intervene
even by armed force to restore order in the border and to end the chaos.
2. Right of Sovereignty and Independence
Sovereignty
It is the totality of the powers, legal competence, and privileges arising from
customary international law, and not dependent on the consent of another state.
Independence
Means freedom from control by other state or group of state and not freedom
from the restrictions that are binding on all states forming the family of nations;
carries with it by necessary implication the correlative duty if non- intervention
Intervention
An act by which a state interferes with the domestic or foreign affairs of
another state through the employment of force or threat which may be physical,
political or economic.
WHEN INTERVENTION SANCTIONED:
1. As an act of self-defense
2. When decreed by the Security Council as a preventive or enforcement action
for the maintenance of international peace and security
3. When such action is agreed upon in a treaty
4. When requested from fellow states or from the UN by the parties to a dispute
or a state beset by rebellion
Drago Doctrine

Intervention not allowed for the purpose of making a state pay its public
debts
3. Right of Equality
Every state is entitled to the same protection and respect as are available to
other states under the rules of international law.
Doctrine of State Immunity
As a consequence of the independence, territorial supremacy and equality, a
state enjoys immunity from the exercise of jurisdiction (legislative, executive or
juridical) by another state, unless it has given consent, waives its immunity, or
voluntarily submitted to the jurisdiction of the court concerned.
THE STATE IS DEEMED TO HAVE WAIVED ITS IMMUNITY:
A. When it gives consent at the time the proceeding is instituted
B. When it takes steps relating to the merits of the cases before invoking
immunity
C. When by treaty or contract it had previously given consent
D. When by law or regulation in force at the time complaint arose it has
indicated that it will consent to the institution of the proceedings
4. Right to Territorial Integrity and Jurisdiction
The territory of a state usually consists of the terrestrial domain, maritime
and fluvial domain and the aerial domain
5. Right of Legation
It is the right of the state to maintain diplomatic relations with other states.
The right to send diplomatic representatives is known as the active right of
legation. The right to receive diplomatic representatives is known as the passive
right of legation.
AGENTS OF DIPLOMATIC INTERCOURSE
1. Head of state
Embodiment of and represents, the sovereignty of the state
Enjoys the right to special protection for his physical safety and the
preservation of his honour and reputation
His quarters, archives, property and means of transportation are inviolate
Principle of Extraterritoriality
2.
3.
4.
5.

Foreign Secretary or Minister

Members of Diplomatic Service
Special Diplomatic Agents appointed by Head of the State
Envoys Ceremonial

FUNCTIONS OF DIPLOMATIC MISSIONS

1.
2.
3.
4.

Representing sending state in receiving state

Protecting in receiving state interests of sending estate and its nationals
Negotiating with government of receiving state
Promoting friendly relations between sending and receiving states and
developing their economic, cultural and scientific relations
5. Ascertaining by all receiving state and reporting thereon to government of
sending state
6. IN some cases, representing friendly governments at their request
Agreation
Process in appointment of diplomatic envoy where state resort to an informal
inquiry(enquiry) as to the acceptability of a particular envoy, to which the receiving
state responds with an informal conformity (agreement)
Letre De Creance (Letter of Credence)
With the name, rank, and general character of his mission, and a request for
a favourable reception and full credence
KINDS OF CONSULS

CONSULES MISSI

CONSULES ELECTI

Professional or career consuls who are

required to devote their full time to
discharge their duties

Perform consular functions only in

addition to their regular callings

Nationals of sending state

May or not be nationals of the sending

state

Ranks
1. Consul- general- heads several consular districts, or one exceptionally large
consular districts
2. Consul- takes charge of a small district or town port
3. Vice- consul- assists the consul
4. Consular agent- usually entrusted
PRIVELEGES AND IMMUNITIES ACCORDED TO DIPLOMATIC ENVOY
1.
2.
3.
4.

Inviolability of their correspondence, archives and other documents

Freedom of movement and travel
Immunity from jurisdiction for acts performed in official capacity
Exemption from certain taxes and customs duties
Immunities and privileges are also available to members of the
consular post their families and their private staff

 Waiver of immunities may be by the appointing state

CASE: Liang vs. People, 323 SCRA 652 (2000)
FACTS: Petitioner is an economist for ADB who was charged by the Metropolitan Trial
Court of Mandaluyong city for allegedly uttering defamatory words against her
fellow worker with two counts of grave oral defamation. MeTC judge then received
an office of protocol from the Department of Foreign Affairs, stating that petitioner is
covered by immunity from legal process under section 45 of the agreement bet ADB
and the government. MeTC judge, without notice, dismissed the two criminal cases.
Prosecution filed writ of mandamus and certiorari and ordered the MeTC to enforce
the warrant of arrest.
ISSUES: Whether or not the petitioner is covered by immunity under the agreement
and that no preliminary investigation was held before the criminal cases were filed
in court.
RULING: He is not covered by immunity because the commission of a crime is part
of the performance of official duty. Courts cannot blindly adhere and take on its face
the communication from the DFA that a certain person is covered by immunity. That
a person is covered by immunity is preliminary. Due process is right of the accused
as much as the prosecution.
Slandering a person is not covered by the agreement because our laws do not allow
the commission of a crime such as defamation in the name of official duty. Under
Vienna convention on Diplomatic Relations, commission of a crime is not part of
official duty.
On the contention that there was no preliminary investigation conducted, suffice it
to say that preliminary investigation is not a matter of right in cases cognizable by
the MeTC such as the one at bar. Being purely a statutory right, preliminary
investigation may be invoked only when specifically granted by law. The rule on
criminal procedure is clear than no preliminary investigation is required in cases
falling within the jurisdiction of the MeTC. Besides, the absence of preliminary
investigation does not affect the courts jurisdiction nor does it impair the validity of
the information or otherwise render it
defective.
Extraterritoriality
Applies only to PERSONS and is based on treaty or convention credited
because of rise of nationalism and sovereign equality of states.
Exterritoriality
Exception of the PERSONS AND PROPERTY from local jurisdiction on basis of
international customs.
Treaty

An international agreement concluded between states in written form and

governed by international law whether embodied in a single instrument or in two or
more related instruments. (art. 2 ViennaConvention on the Law of Treaties, 1969)

Taiwan cannot enter into a treaty

REQUISITES OF A VALID TREATY

1.
2.
3.
4.
5.

Entered into by parties having treaty-making capacity

Through their authorized organs or representatives
Without attendance of duress, fraud, mistake, or other vices of consent
Lawful subject matter and object
Ratification in accordance with their respective constitutional processes

CASE: Bayan vs Zamora G. R. No. 138570 Oct. 10, 2000

A treaty, as defined by the Vienna Convention on the Law of Treaties, is an
international instrument concluded between States in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments, and whatever its particular designation.
Section 25, Article XVIII, which specifically deals with treaties involving foreign
military bases, troops or facilities, should apply in the instant case.
The 1987 Philippine Constitution contains two provisions requiring the
concurrence of the Senate on treaties or international agreements. Sec. 21 Art. VII,
which respondent invokes reads: No treaty or international agreement shall be
valid and effective unless concurred in by at least 2/3 of all the Members of the
Senate. Sec. 25 Art. XVIII provides: After the expiration in 1991 of the Agreement
between the RP and the US concerning Military Bases, foreign military bases, troops
or facilities shall not be allowed in the Philippines except under a treaty duly
concurred in and when the Congress so requires, ratified by a majority of votes cast
by the people in a national referendum held for that purpose, and recognized as a
treaty by the Senate by the other contracting state.
The first cited provision applies to any form of treaties and international
agreements in general with a wide variety of subject matter. All treaties and
international agreements entered into by the Philippines, regardless of subject
matter, coverage or particular designation requires the concurrence of the Senate
to be valid and effective.
In contrast, the second cited provision applies to treaties which involve
presence of foreign military bases, troops and facilities in the Philippines. Both
constitutional provisions share some common ground. The fact that the President
referred the VFA to the Senate under Sec. 21 Art. VII, and that Senate extended its
concurrence under the same provision is immaterial.
Q: VFA-concurred in by our senate but not by the US Senate

A: VFA still binding on its/ is still a binding treaty because it is not our business to
dwell into the domestic law of the other contracting party; we are satisfied with the
Senators pronouncement that the US will recognize it.
Attentant Clause
Assassination of head of the State or any member of his family is not
regarded as political offence for purpose of extradition. Also applies to genocide
STEPS IN TREATY MAKING PROCESS
1. Negotiation
Discussion of the provisions of the proposed treaty, undertaken by the
representatives of the contracting parties who are provided with credentials
known as full powers of PLENIS POUVIORS
2. Signature
Primarily intended as a means of authenticating the instrument and
symbolizing the good faith of the contracting parties.
Practice Aternat
Arrangement under which each negotiator is allowed to sign first on the copy of
the treaty which he will bring home to his own country, the purpose being to
preserve the formal appearance of equality among the contracting states and to
avoid delicate questions of precedence among signatories.
3. Ratification
Act by which the state formally accepts the provisions of the treaty concluded by
its representatives.
4. Exchange of Instruments of ratifications
5. Registration with the UN
Concordat
A treaty or agreement between ecclesiastical and civil powers to regulate the
relations between the church and the state in those matters which, in some respect
are under the jurisdiction of both.
DOCTRINES IN TREATIES
Jus Cogens
A jus cogens or peremptory is a norm which States cannot derogate or
deviate from in their agreements. It is a mandatory norm and stands on a higher

category than a jus dispotivum norm which States can set aside or modify by
agreement
A fiduciary Theory of Jus Cogens Evan J. Criddle and Evan Fox Decent
CASE: Isabelita Vinuya vs. Executive Secretary Romulo
Held:
Certain types of cases often have been found to present political questions. One
such category involves questions of foreign relations. It is well-established that
"[t]he conduct of the foreign relations of our government is committed by the
Constitution to the executive and legislative--'the political'--departments of the
government, and the propriety of what may be done in the exercise of this political
power is not subject to judicial inquiry or decision." The US Supreme Court has
further cautioned that decisions relating to foreign policy are delicate, complex, and
involve large elements of prophecy. They are and should be undertaken only by
those directly responsible to the people whose welfare they advance or imperil.
They are decisions of a kind for which the Judiciary has neither aptitude, facilities
nor responsibility.

PactaSuntServanda
It simply means that treaties must be observed in good faith despite hardship
on the contracting state, such as conflicts between the treaty and its constitutions
or prejudice to the national interst as a result of the operation of the treaty.
As a general rule, a party must comply with the provisions of a treaty and
cannot ignore or modify it without the consent of the other signatory. Willful
disregard or violation of treaties without just cause is frowned upon by the society
of nations.

Clausula Rebus Sic Stantibus

1. It applies only to treaties of indefinite duration
2. The vital change claimed as jurisdiction for the discontinuance of the
treaty must have been unforeseen or unforeseeable and must not have
been caused by the party invoking the doctrine

3. The doctrine must be invoked within a reasonbale time from the

occurrence of the change asserted.
4. The doctrine cannot operate retroactively upon the provisions of the
treaty executed prior to the change in circumstance (Salonga and Yap,
310)

CASE: Fisheries jurisdiction Case- UK vs. Iceland

Iceland claims that its agreement with the UK not to extend its fishereies
jurisdiction was no longer binding due to fundamental change of circumstances
Held:
For this to be a ground for invoking the termination of a treaty, it should have
resulted in a radical transformation of the extent of the obligations still to be
performed. The change must have increased the burden of the obligations to be
executed to the extent of rendering the performance something essentially
different from that originally undertaken.
This is not the case here, Iceland cannot validly invoke Rebus Sic Stantibus in
claiming the termination of the treaty.

Most Favored Nation Clause

Pledge made by a contracting party to a treaty to grant to other party
treatment not less favorable than that which had been given or may be granted to
the most favored among parties.

TERMINATION OF TREATIES
1. Expiration of term
2. Accomplishment of purpose
3. Impossibility of performance
4. Loss of subject matter

5. Desuetude
o

Desistance of parties by express mutual consent or exercise of right of

renunciation when allowed.

6. Extinction of one parties; if treaty is bipartner

7. Novation
8. Occurrence of vital change of circumstance
9. Outbreak of war
10.Voidance of treaty because of:
a. Defect in constitution
b. Violation of its provision by one party
c. Incompatibility with International law
11.Application of the doctrine of the Rebus Sic Stantibus
12.The doctrine of Jus Cogens (or the emergence of a new preemptory norm of
general international law which renders void any existing treaty conflicting
with such norm)

Protocol de Cloture
An instrument which records the winding up of the proceedings of a
diplomatic conference and usually includes a reproduction of the contents of
treaties, conventions, recommendations and other acts agreed upon and signed by
the plenipotentiaries attending the conference. It is not the treaty and does not
require the concurrence of the senate. (Tanada vs. Angara)

NATIONALITY AND STATELESSNESS

Nationality

Membership on a political community with all its concomitant righrs and

obligations. It is the tie that binds the individual to his state from which he can claim
protection and whose law he is obliged to obey

Citizenship
Membership in a political community whci is personal and more or less
permanent in character

Doctrine of Effective Nationality

Expressed in Art. 5 of the Hague Convention of 1930 on the Conflict of
Nationality Laws that a person having more than one nationality shall be treated as
if he had only one- either the nationality of the country in which he is habitually and
principally resident or the nationality of the country with chich the circumstances he
appears to be in face most closely connected.

CASE: Frivaldo v. Comelec

That Nottebohm case is not relevant to the petition before us because it dealt
with a conflict between the nationality laws of two states as decided by a third
state. No third state is involved in the case at bar; in fact, even the United States is
not actively claiming Frivaldo as its national. The sole question presented to us is
whether or not Frivaldo is a citizen of the Philippines under our own laws, regardless
of other nationality laws. We can decide this question alone as sovereign of our own
territory, conformably to Section 1 of the said Convention providing that "it is for
each State to determine under its law who are its nationals."
Statelessness
Condition or statues of an individual who is born without any nationality or
who loses his nationality without retaining or acquiring another
De Jure Statelessness
It is where the exists no recognized state in respect of which the subject has
a legally meritorious basis to claim nationality

De Facto Statelessness
It is where the subject may have a legally meritorious claim but is precluded
from asserting it because of practical considerations such as cost, circumstances of
civil disorder, or the fear of persecution
ALIENS
Definition
It is a person in a country who is not a citizen of the country
Treatment of Aliens
Flowing from its right to existence and as an attribute of sovereignty, no state
is under obligation to admit aliens. The state can determine in what cases and
under what conditions it may admit aliens.
1. The state has the Right to EXPEL aliens from its territory through:
a. Deportation
Expulsion of alien considered undesirable by the local state,
usually not necessarily to his own state
b. Reconduction
Forcible conveying of aliens back to their home state without
any formalities

2. The alien must accept the institutions of local states as he finds them.
Doctrine of State Responsibility
State may be held liable for injuries and damages sustained by the alien
while in the territory of the state provided:
1. The act or omission constitutes an international delinquency
2. The act or omission is directly or indirectly imputable to the state
3. Injury to the claimant state indirectly because of damage to its national

Calvo Clause
It is a stipulation by virtue of which an alien waives or restricts his right to
appeal to its own state in connection with any claim arising from a contract with
foreign state and limits himself to the remedies available under the law of the state.
Drago Doctrine
In 1902, Great Britiain, Italy and Germany established a bloackade against
Venezuela in order to enforce certain contractual and other claims against it,
leading Foreign Minister Jose Maria Drago of Argentina to formulate the doctrine
that a public debt cannot give rise to the right of armed intervention.
This principle was later adopted in the Second Hague Conference, but subject
to the qualitfication that the debtor state should not refuse or neglect to reply to an
offer of arbitration or after accepting the offer, prevent any compromise from being
upon, or after the arbitration, fail to submit to the award. This qualification is known
as the PORTER RESOLUTION
Refugees
A person who, owing to a well-foundedfear of being persecuted for treasons
of race, religion, nationality, membership of a particular social group or political
opinion, is outside the country of his nationality, and is unable or wing to such fear,
is unwilling to avail himself of the protection of that country; or who, not having a
nationality and being outside the country of his former, habitual residence, is unable
or owing to such fear, is unwilling to return to it. (Convention Relating to the Status
of Refugees, Art.1 a(2) ).
Non- refoulment
Prohibits state to return or expel a refugee to the territory where he escaped
because his life or freedom is threatened. The State is under obligation to grant
temporary asylum. (Refugee Convention of 1951)
Right of Asylum
Refuge in another state. Every foreign state can be at least a provisional
asylum for any individual, who being persecuted in his home State, goes to another
state, in the absence of any international treaty stipulating the contrary, no state is,
by international laws, obliged to refuse admission into its territory to such a fugitive
or in case he has been admitted, to expel him or deliver him up to the prosecuting
state.

The right of asylum is not a right possessed by an alien to demand that a

state protect him and grant him asylum. At present, it is just a PRIVILEGE granted
by a state to allow an alien escaping from persecution of his country for political
reasons to remain and to grant him asylum.

Diplomatic Asylum
Refugee in another state for political offense, danger to life or no assurance
of due process
Extradition
The removal of an accused from the Philippines with the object of placing him at the
disposal of foreign authorities to enable the requesting state or government to hold
him in connection with any criminal investigation directed against him or the
execution of a penalty imposed on him under the penal or criminal law of the
requesting state or government (P.D. 1069, Sec 2 (a)).
Specialty and Double criminality:
Requirements for the exercise of extradition:
1
2

The Principle of speciality requires that the requesting state must specify the
crime under the extradition treaty for which the fugitive or accused is sought,
and that he is to be tried only for the offense specified in the treaty.
The principle of double criminality requires that an offense must be
punishable under the law of both the extraditing state and the requesting
state for the accused to be extradited.

GENERAL PRINCIPLES IN EXTRADITION

1
2

Basis: a TREATY based on consent of the parties

PRINCIPLE OF SPECIALTY
A fugitive who is extradited may be tried only for the crime specified in
the request for extradition and included in the list of offenses in the
treaty
Non- List Type of Treaty
o Offenses punishable under the laws of both states by
imprisonment of 1 year or more are included among the
extraditable offenses(less than 1 year, cant extradite)
3 Any person may be extradited, he NEED NOT BE A CITIZEN OF THE
DEMANDING STATE
4 Political and Religious offenders are GENERALLY NOT SUBJECT to extradition

IN the absence of special agreement, offense must have been committed

within the TERRITORY OR AGAINST THE INTEREST OF THE DEMANDING STATE.

CASE: Wright vs. CA

Australia and the Government of the Philippines in the suppression of crime,
entered into a Treaty of Extradition on the 7th of March 1988. The said treaty was
ratified in accordance with the provisions of Section 21, Article VII of the 1987
Constitution in a Resolution adopted by the Senate on September 10, 1990 and
became effective 30 days after both States notified each other in writing that the
respective requirements for the entry into force of the Treaty have been complied
with. Petitioner contends that the provision of the Treaty giving retroactive effect to
the extradition treaty amounts to an ex post facto law which violates Section 21 of
Article VI of the Constitution.
ISSUE: Can an extradition treaty be applied retroactively?
HELD:
YES, Applying the constitutional principle, the Court has held that the prohibition
applies only to criminal legislation which affects the substantial rights of the
accused. This being so, there is no absolutely no merit in petitioner's contention
that the ruling of the lower court sustaining the Treaty's retroactive application with
respect to offenses committed prior to the Treaty's coming into force and effect,
violates the Constitutional prohibition against ex post facto laws. As the Court of
Appeals correctly concluded, the Treaty is neither a piece of criminal legislation nor
a criminal procedural statute. It merely provides for the extradition of persons
wanted for prosecution of an offense or a crime which offense or crime was already
committed or consummated at the time the treaty was ratified.

CASE: USA vs. Purganan

The ultimate purpose of extradition proceedings in court is only to determine
whether the extradition request complies with the Extradition Treaty, and whether
the person sought is extraditable.
The proceedings are intended merely to assist the requesting state in bringing the
accused -- or the fugitive who has illegally escaped -- back to its territory, so that
the criminal process may proceed therein.
By entering into an extradition treaty, the Philippines is deemed to have reposed its
trust in the reliability or soundness of the legal and judicial system of its treaty
partner, as well as in the ability and the willingness of the latter to grant basic rights
to the accused in the pending criminal case therein.

Extradition proceedings are not equivalent to a criminal case in which guilt or

innocence is determined. Consequently, an extradition case is not one in which the
constitutional rights of the accused are necessarily available. It is more akin, if at
all, to a courts request to police authorities for the arrest of the accused who is at
large or has escaped detention or jumped bail. Having once escaped the jurisdiction
of the requesting state, the reasonable prima facie presumption is that the person
would escape again if given the opportunity.
General Rule:
Prospective extraditees not entitled to notice and hearing before warrants for
their arrest can be issued to the right to bail and provisional liberty while the
extradition proceedings are pending
Exception:
1. Once bail is granted, he will not be flight risk or danger to community
2. There exist special, humanitarian, and compelling circumstances
Principles on Extradition:
1. No State is obliged to to extradite unless there is a treaty
2. Differences in legal system can be an obstacle to interpretation of what the
crime is
3. Religious and political offenses are not extraditable
Procedure is normally through diplomatic channels (how extradition rules can be
bypassed: US vs. Alvarez- Machain; how due process requirements work in an
extradition case: Secretary of Justice vs. Lantion; USA vs. Purganan and Crespo)
CASE: Hong Kong v. Olalia G.R. No. 153675
Facts:
The Philippines and Hong Kong signed an Agreement for the Surrender of Accused
and Convicted Persons.
Private respondent Muoz was charged before the Hong Kong Court. Department of
Justice (DOJ) received from the Hong Kong Department of Justice a request for the
provisional arrest of private respondent
Muoz. The DOJ then forwarded the request to the National Bureau of Investigation
(NBI) which, in turn, filed with the RTC of Manila, Branch 19 an application for the
provisional arrest of private respondent. The NBI agents arrested and detained him.
Muoz filed a petition for bail which was denied by Judge Bernardo, Jr. holding that
there is no Philippine law granting bail in extradition cases and that private
respondent is a high flight risk. After Judge Bernardo, Jr. inhibited himself from
further hearing the case, it was then raffled off to Branch 8 presided by respondent
judge. Private respondent filed a motion for reconsideration of the Order denying his
application for bail and this was granted by respondent judge.
ISSUE Whether or not the trial court committed grave abuse of discretion amounting
to lack or excess of jurisdiction in allowing private respondent to bail?

HELD
No, the trial court did not commit grave abuse of discretion amounting to
lack or excess of jurisdiction in allowing private respondent to bail.
Accordingly, although the time-honored principle of pactasuntservanda
demands that the Philippines honor its obligations under the Extradition Treaty it
entered into with the Hong Kong Special Administrative Region it does not
necessarily mean that in keeping with its treaty obligations, the Philippines should
diminish a potential extraditees rights to life, liberty, and due process guaranteed
by the Constitution. More so, where these rights are guaranteed, not only by our
Constitution, but also by international conventions, particularly the Universal
Declaration of Human Rights, to which the Philippines is a party.
We should not, therefore, deprive an extraditee of his right to apply for bail,
provided that a certain standard for the grant is satisfactorily met. In his Separate
Opinion in Purganan, then Associate Justice, now Chief Justice Reynato S. Puno,
proposed that a new standard which he termed clear and convincing evidence
should be used in granting bail in extradition cases. According to him, this standard
should be lower than proof beyond reasonable doubt but higher than
preponderance of evidence. The potential extraditee must prove by clear and
convincing evidence that he is not a flight risk and will abide with all the orders and
processes of the extradition court. In this case, there is no showing that private
respondent presented evidence to show that he is not a flight risk. Consequently,
this case should be remanded to the trial court to determine whether private
respondent may be granted bail on the basis of clear and convincing evidence.
WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to
determine whether private respondent is entitled to bail on the basis of clear and
convincing evidence. If not, the trial court should order the cancellation of his bail
bond and his immediate detention; and thereafter, conduct the extradition
proceedings with dispatch.

Constitutional Provision on bail applies only in criminal proceeding, not to

extradition

Criminal Proceedings:
-Full blown trial
-proof beyond reasonable doubt
-judgment becomes executory upon
being final

Extradition proceedings:
-Summary in nature
- allow admission of evidence in a less
stringent standard
-the President has discretion rendered
even though the court deems it proper
extraditable.

In extradition proceedings, it is not necessary that there be a prior hearing

before the accused is arrested. All that is necessary for the extradite to be arrested
is a prima facie finding by the judge that the petition for extradition and its
supporting documents that
1
2

They are sufficient in form and substance

they show compliance with the extradition treaty and law,

3 person sought is extraditable.

Air freedoms 1944 Internatinal Convention on Civil Aviation
Traditionally, an airline needs the approval of the governments of the various
countries involved before it can fly in or out of a country, or even fly over another
country without landing.
Prior to World War II, this did not present too many difficulties since the range of
commercial planes was limited and air transport networks were in their infancy and
nationally oriented.
In 1944, an International Convention was held in Chicago to establish the framework
for all future bilateral and multilateral agreements for the use of international air
spaces.
Five freedom rights were designed, but a multilateral agreement went only as far
as the first two freedoms (right to overfly and right to make a technical stop).
The first five freedoms are regularly exchanged between pairs of countries in Air
Service Agreements.
The remaining freedoms are becoming more important, however. Freedoms are not
automatically granted to an airline as a right, they are privileges that have to be
negotiated and can be the object
of political pressures.
All other freedoms have to be negotiated by bilateral agreements, such as the 1946
agreement between the United States and the UK, which permitted limited "fifth
freedom" rights. The 1944 Convention has been extended since then, and there are
currently nine different freedoms.
First Freedom
The freedom to overfly a foreign country (A) from a home country en-route to
another (B) without landing. Also called the transit freedom.

Second Freedom
The freedom to stop in a foreign country for technical/refueling purpose only. A flight
from a home country can land in another country (A) for purposes other than

carrying passengers, such as refueling, maintenance or emergencies. The final

destination is country B.

Third Freedom
The freedom to carry traffic from a home country to another country (A) for purpose
of commercial services.

Fourth Freedom
The freedom to pick up traffic from another country (A) to a home country for
purpose of commercial services. Third and Fourth Freedoms are the basis for
direct commercial services, providing the rights to load and unload passengers, mail
and freight in another country.

Fifth Freedom
The freedom to carry traffic between two foreign countries on a flight that either
originated in or is destined for the carrier's home country. It enables airlines to carry
passengers from a home country
to another intermediate country (A), and then fly on to third country (B) with the
right to pick passengers in the intermediate country. Also referred to as "beyond
right".

This freedom is divided into two categories:

1) Intermediate Fifth Freedom Type is the right to carry from the third country
to second country.
2)Beyond Fifth Freedom Type is the right to carries from second country to the
third country.

Sixth Freedom
The "unofficial" freedom to carry traffic between two foreign countries via the
carrier's home country by combining third and fourth freedoms. Not formally part of
the original 1944 convention, it refers to the right to carry passengers between two
countries (A and B) through an airport in the home country.

Seventh Freedom
The freedom to base aircraft in a foreign country for use on international services,
establishing a de facto foreign hub. Covers the right to operate a passenger
services between two countries (A and
B) outside the home country.

Eighth Freedom
The freedom to carry traffic between two domestic points in a foreign country on a
flight that either originated in or is destined for the carrier's home country. Also
referred to as "cabotage" privileges or true or consecutive cabotage.

It involves the right to move passengers on a route from a home country to a

destination country (A) that uses more than one stop along which passengers may
be loaded and unloaded.

Ninth Freedom
The freedom to carry traffic between two domestic points in a foreign country. Also
referred to as "full cabotage, stand alone cabotage or "open-skies"
privileges. It involves the right of a home country to move passengers within
another country (A).