PUBLIC INTERNATIONAL LAW

PUBLIC INTERNATIONAL LAW - 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.

PRIVATE INTERNATIONAL LAW - Selects between conflicting municipal systems of law to regulate
the relationship between persons. It focuses on the conduct, not of states or international
organizations, but rather conduct of individual, corporations and other private entities.

SCHOOLS OF THOUGHT OF PIL

1. Natural law
2. Positivist
3. Eclectic
4. Command theory
5. Consensual

HARD LAW - Binding international legal norms or those which have coercive character.

SOFT LAW - Used to describe international instruments that their makers recognize as not treaties
but have as their purpose the promotion of noms which are believed to be good and should
have general or universal application.

THEORETICAL APPROACHES TO RELATIONSHIP BETWEEN INTERNATIONAL LAW AND NATIONAL LAW

1. MONOISM - No substantial distinction between the international law and municipal law. It
supposes that international law and national law are simply two components of a single
body called law.
2. DUALISM - International law and national law are independent of each other and both
systems are regarded as mutually exclusive and independent.

MANNERS OF ADOPTING INTERNATIONAL LAW

1. Doctrine of incorporation - State is by reason of its membership in the family of nations, bound
by the generally accepted principles of international law, the same being considered as part
of its own laws. (AS STATED IN CONSTITUTION)
2. Doctrine of Transformation - Requires enactment by the legislative body of such international
law principles sought to be part of municipal law.

TREATY MAKING POWER - By president with the concurrence of 2/3 of the SENATE

CONFLICT RESOLUTION BETWEEN PIL AND NL

GR: Attempt to reconcile apparent contradiction to give effect if possible to both systems of
laws.
From the view point of the state, A treaty may be declared unconstitutional by the
courts. ML ALWAYS PREVAILS.

RESOLVED BY LOCAL COURT - PH Constitution should be upheld

RESOLVED BY INTERNATIONAL TRIBUNAL - National laws must yield to laws of nations because
international law provides standards which legality of state conduct is to be determined.

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FITZMAURICE COMPROMISE - Since NL and PIL do not operate in common field, they can never
come into conflict. Each one of them is supreme in its own domain, thereby any apparent
conflict in the domestic field is automatically settled by domestic conflict rules and any conflict
in international law shall be resolved by international law.

CHARMING BETSY CANON - An act of congress ought never to be construed to violate the law of
nations if any other possible construction remains.

SOURCES OF INTERNATIONAL LAW

1. Primary
1. International conventions
2. International customs
3. General principles of law
2. Secondary sources
1. Judicial decisions
2. Teachings of the most highly qualified publicists of various nations

ET AEQUO ET BONO (from equity and conscience)

- A decision made ex aqua et bono means that the court decided the case not on legal
considerations but solely on what is fair and reasonable

- ICJ may decide EAEB where the parties agree thereto.

INTERNATIONAL CONVENSIONS
REQUISITES
1. Between states
2. Written form
3. Governed by International law

INTERNATIONAL CUSTOMS - Derived from the consistent conduct of the states acting out of belief
that the law required them to act that way.
REQUISITES
1. State practice
2. Opinio Juris Sive Necessaitates (Opinion of law or necessity) - the belief that this practice is
rendered obligatory by existence of rule requiring it.

PERSISTENT OBJECTION RULE - When a state persistently objects to a rule during its formative state,
it will not be bound by it.

JUS COGENS (COMPELLING LAW) - Norms that command peremptory authority superseding
conflicting treaties and customs. It can neither be derogated nor modified except by a norm of
similar character
- It enjoys higher rank in the international hierarchy than treaty law and even ordinary
customary rules

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EXAMPLES:
1. Prohibition against use of force
2. Torture
3. Racial discrimination
4. Genocide
5. Crimes against humanity
6. Slavery
7. Piracy

OBLIGATIONS ERGA OMNES (TOWARDS ALL)

1. An obligation under General international law that a state owes in any given case to the
international community in view of its common values and concern for compliance so that a
breach of that obligation enables all states to take action
2. An obligation under Multilateral treaty that a state party to the treaty owes in any given case
to all the other state parties to the same treaty in view of their common values, so that a
breach of that obligation enables all these states to take action.

JUS COGENS JUS DISPOSITIVUM

Peremtory norm or compelling law It is a law subject to the dispensation of the

parties.

Duties which every state owes to the Norms of customary international law founded on
international community self interest of participating states

Cannot be waived May be waived

Agreements derogating from such norms are May be disregarded.

null and void

May be modified only by a subsequent norm Capable of being modified by contrary,

having the same character consensual or legal agreements.

- ICJ STATUTE directs the court to apply judicial decisions as subsidiary mean for the
determination of rules of law. But it is subject to the same principle that the decisions of the
court have no binding force except between parties and in respect of that particular case.
- NO STARE DECISIS. Only HIGHLY PERSUASIVE

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.

REQUISITES
1. Capacity to contract
2. Consent
3. Conformity
4. Authority
5. Ratification

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EFFECTS OF UNWRITTEN TREATY

1. Convention rules on matters governed by international law shall apply
2. Convention rules apply to the relations of the states as between themselves under
international agreement with other subjects as parties.
3. Has Legal force

- NEGOTIATION SHALL BE MADE BY President or the Secretary of foreign affairs when delegated

PRACTICE OF ALTERNAT - 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 is to preserve the
formal appearance of equality among the contracting states and to avoid delicate questions of
precedence

- A state is obliged to refrain from acts which would defeat the object and purpose of treaty
- The power to ratify is vested in President. However no treaty or International agreement shall
be valid and effective unless concurred by at least 2/3 of all the members of the senate.

TRAVAUX PREPARATOIRES - Preparatory work of the treaty that contains legislative history

RESTRICTION OF SUBJECT MATTER

1. Jus Cogens restriction
2. UN charter restrictions/ Principle of charter supremacy or principle of international
constitutional supremacy
- A treaty may violate international law when at the time of its conclusion it conflicts with jus
cogens or if its conclusion has been procured by threats or use of force in violation of the
principles of international law.

ACCESSION - State expresses its consent to be bound by an already existing treaty

RESERVATION - A unilateral statement made by a state when signing or ratifying a treaty

whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in
their application to that state,

RULES ON RESERVATION
1. State may make reservation unless prohibited or treaty provides specified reservations or
reservation is incompatible with the purpose of the treaty.
2. Reservation does not require acceptance unless it is otherwise provided by the treaty
3. A reservation is considered accepted by a state if it shall have raised no objection to the
reservation by the end of a period of 12 months or by the date on which it is expressed its
consent to be bound.
4. It must be done in writing and communicated to other states.

PACTA TERTIS NEC NOCENT NEC PROSUNT - A treaty binds the parties and only the parties.

PACTA SUNT SERVANDA - Agreements must be kept - Every treaty in force is binding upon the
parties to it and must be performed by them in good faith.

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REBUS SIC STANTIBUS - Things Standing thus <3

- A fundamental change of circumstances which has occurred with regard to those existing at
the time of the conclusion of treaty and which was not foreseen by the parties may be
invoked as a ground for terminating or withdrawing from the treaty if:
1. The existence for those circumstances constituted as the essential basis of the consent of the
parties to be bound by the treaty
2. Effect of the change is radically to transform the extent of the obligations still to be
performed under the treaty.

- NOT AUTOMATIC. There must be a formal act of rejection.

REQUISITES:
1. Substantial that the foundation of the treaty must have disappeared.
2. Unforeseen or unforeseeable at the time of the perfection of the treaty
3. Change must not have been caused by the party invoking it
4. Invoked within reasonable time
5. Duration must be indefinite
6. Cannot operate retroactively

EXCEPTIONS
1. Boundary
2. Fundamental change is the result of the breach by a party involving it.

AMENDMENT OR MODIFICATION OF TREATY

GR: Consent of all the parties
EXCEPT: IF ALLOWED BY THE TREATY ITSELF, 2 states may modify only insofar as they are
concerned.

TERMINATION OR SUSPENDED OUTRIGHTLY

1. Material breach
2. Supervening impossibility
3. Rebus sic stantibus

GROUNDS FOR TERMINATION

1. Expiration
2. Accomplishment of purpose
3. Impossibility
4. Loss of Subject matter
5. Rebus sic stantibus
6. Outbreak of war
7. Voidance of treaty
8. Extinction of one parties if bilateral
9. Desuetue - Desistance of parties by express mutual consent
10. Novation

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11. Jus cogens

PRINCIPLE OF UNEQUAL TREATY

1. Coercion of state
2. Jus cogens
3. Rebus sic stantibus

VALIDITY OF VFA - Stated in constitution.

- Bases shall not be allowed in PH EXCEPT UNDER A TREATY DULY CONCURRED BY SENATE AND
WHEN CONGRESS SO REQUIRES, ratified by a majority of votes cast by the people in national
referendum.
- COMPLIED. There is no violation with the constitution. The VFA being a valid implementing
agreement to the main treaty, the parties are required as a matter of international law to
abide by its terms and provisions.
- VFA led to the annual military exercises (Balikatan exercises)
- The enhanced defense cooperation agreement is valid without necessity of senate’s
concurrence as it is merely IMPLEMENTS those already authorized under the VFA (EDCA)

CONCORDAT - A treaty or agreement between the pope and the state that deals with religious
matters as well as the recognition of the privileges of holy see.

SUBJECTS OF INTERNATIONAL LAW - An entity that has rights and responsibilities under
international law and which has the capacity to maintain its rights by bringing international
claims
EXAMPLES
1. States
2. Colonies and dependencies
3. Mandates and trust territories
4. Belligerent communities
5. UN
6. International administrative bodies
7. Vatican and Holy see
8. Individuals to a certain extent

OBJECT OF INTERNATIONAL LAW - Person or thing indirectly vested with rights and obligations in
the international order.

SUBJECT OBJECT

Has rights and responsibilities under that law Person or thing in respect of which rights are held
and obligations assumed by the subject

Has international personality Not directly governed by rules of international law

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SUBJECT OBJECT

It can be proper party to transactions involving Rights are received and its responsibilities
application of law of nations among members imposed indirectly through the instrumentality of
of international community an intermediate agency

STATE
CLASSIFICATIONS
1. Sovereign - Full membership in international community
2. Neutralized - Permanent neutrality imposed
3. Dependent - Complete control of its domestic affairs but controlled with regard to their
relationship with third states

CREATION OF STATES
1. Discovery and Occupation - Territory not belonging to any state or TERRA NULLIUS is placed
under the sovereignty of the claiming state.
REQ:
1. Intent to act or Animus occupandi
2. Actual exercise of display of authority

2. PRESCRIPTION
3. CESSION - By treaty
4. ACCRETION - Increase in the land area either through natural means or artificial
5. Conquest - Not anymore recognized. - Use of force

RECOGNITION - Act by which a state acknowledges the existence of another state, government
or belligerent community and indicates its willingness to deal

- It is a political act.
- Discretionary
- Exercised by the executive department.

CO-OPTATION - Integration of a new state in the international community does not take place
automatically. It is by co-optation or by individual or collective recognition on the part of states
already existing

PRINCIPLE OF STATE CONTINUITY - Once the identity of the state as an international person has
been fixed and its position in the international community established, the state continues to be
the same corporate person whatever changes may take place in its integral organization.

REQUISITES OF RECOGNITION
1. Government is stable and effective
2. No substantial resistance to its authority
3. Willingness and ability to discharge its international obligations
4. Government must enjoy popular consent or approval of people

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OBJECTS OF RECOGNITION
1. State
1. Colony
2. Dependency
3. Mandates and trust territories
4. BC
5. Holy see
2. Government - Does not necessarily signify the existence of a state
3. Belligerent community - Provisional international personality
CONDITIONS FOR RECOGNITION FOR BC
1. Willing to observe laws of war.
2. Organized civil government
3. Rebels occupy a substantial portion of territory

- Recognition of government established by revolution, civil war, coup de tat or other forms until
the freely elected representatives of the people have organized a constitutional government
is precluded.
- State violates international law and thus infringes upon the rights of other states if it recognizes
as a state a community that does not fulfill the requirements of PIL
- Doctrine precludes recognition of entity which is not legally a state is wrong because it
constitutes an abuse of power of recognition.

SUCCESSION
- Shift of responsibilities over a territory from one state to another.

NEWLY INDEPENDENT STATE - A successor state the territory of which immediately before the date
of the succession of states was a dependent territory

MOVING TREATY FRONTIERS RULE / MOVING BOUNDARY RULE - When part of a territory of a state
becomes part of the territory of another state, treaties of the predecessor state CEASE TO BE IN
FORCE in respect of the merged territory from the date of succession unless it would be
incompatible with the object and purpose of the treaty.

CLEAN SLATE DOCTRINE - A newly independent state is not bound to maintain in force or to
become a party to any treaty by reason of the fact at the date of succession of state the treaty
was in force in respect of the territory to which succession of states relates.
- NOT APPLIED TO BOUNDARY REGIMES

PRINCIPLE OF AUTO LIMITATION - Any state may by its consent express or impliedly submit to a
restriction of its sovereign rights.

WHEN INTERVENTION IS SANCTIONED

1. Requested from fellow states or from the UN by parties to a dispute or a state beset by
rebellion
2. Act of self defense

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3. Decreed by Security council as preventive action

4. Agreed upon in a treaty

DRAGO DOCTRINE - Intervention is not allowed for the purpose of making a state pay for its
public debts.

DOCTRINE OF EQUALITY OF STATE - Equal in International law despite obvious factual inequalities.

AGGRESSION - Use of armed forces by a state against the sovereignty, territorial integrity or
political independence of another state.

REQUISITE OF PROPER EXERCISE OF SELF DEFENSE

1. Armed attack occurred against a member of UN
2. Confined to cases in which the necessity of self defense is instant and leaving no choice of
means
3. Proportionality
4. Must give way to security council to maintain international peace

COLLECTIVE SELF DEFENSE - The right of the states to come to the defense of a state whose
situation meets the condition of legitimate individual self defense
- it must be from ARMED ATTACK not alleged attack

PREVENTIVE/ANTICIPATORY SELF DEFENSE - Use of force in anticipation of an attack is legal if

made in good faith depending on circumstances

RIGHT OF LEGATION - Right of the state to send and receive diplomatic missions which enables
states to carry on friendly intercourse. NEEDS COMMON CONSENT.

DOCTRINE OF STATE RESPONSIBILITY - Whenever one state commits an internationally unlawful

act against another state, international responsibility is established between them.

THEORIES OF STATE RESPONSIBILITIES

1. Principle of objective responsibility/ Risk theory/ Strict liability - Once an unlawful act has
taken place which has caused injury to another, the state will be responsible
2. Fault Theory - An element of intentional or negligent conduct is necessary before the state
be liable.

INTENTIONALLY WRONGFUL ACT

1. The conduct is attributable to the state under international law
2. Constitute a breach of an international obligation

ATTRIBUTION - A legal construct whereby an internationally unlawful conduct of a state organ

acting in that capacity is regarded as the conduct of the state itself

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CONDUCT ATTRIBUTABLE TO THE STATE

1. State organs exercising LEJ or any other functions in government capacity
2. Person entitled by law to perform such function
3. Organ placed at the disposal of state by another state
4. Person or group of persons acting on the instruction of the state
5. Insurrectional movement
6. Entity which succeeds in establishing new state
7. State acknowledges

STATE IS RESPONSIBLE FOR THE ACTS OF ANOTHER STATE

1. Aids, assists another to commit intentionally wrongful act
2. Directs and controls
3. Coerces

CALVO DOCTRINE - State is not responsible for losses incurred by aliens in time of civil war.

STATE JURISDICTION

BASES OF JURISDICTION
1. TERRITORIALITY
2. NATIONALITY
3. PROTECTIVE PRINCIPLE / PROTECTIVE PERSONALITY - A state may exercise jurisdiction over
conduct outside its territory that threatens its security as long as that conduct is generally
recognized as criminal
4. UNIVERSALITY
5. AGREEMENT

MODES OF RESOLVING JURISDICTION

1. Balancing test
1. Actual or intended effect
2. Injury
3. Sufficient strong effect
2. International comity
3. Forum Non Coveniens - Weighing private interest to public factors
1. Private
1. Access to sources of proof
2. Availability of compulsory process
3. Other personal problem
2. Public
1. Congestion
2. Desire to settle local controversies

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DOCTRINE OF STATE IMMUNITY - State enjoys immunity from the exercise of jurisdiction by another
state.
- Restrictive application - Denies sovereign immunity with respect to state activities of
commercial nature (Acta Jure Gestionis)

ACT OF STATE DOCTRINE - A state shall not inquire into the validity of the public acts of another
state done within the territory of the latter.

DIPLOMATIC LAW

DIPLOMATIC RELATIONS CONSULAR RELATIONS

Political relations Relationship between foreigners

Consent of the receiving state to establish a A consular post may serve as a step towards the
diplomatic mission establishment of diplomatic mission

Signified recognition of state as subject of PIL Does not necessarily signify recognition of state

DIPLOMACY - Science and an art whose purpose is to accomplish foreign policy in the most
accurate way.

PRIVILEGES AND IMMUNITIES

1. DIPLOMATIC AGENTS - Immunity from criminal, civil and administrative jurisdiction EXCEPT
1. Real action relating to private property unless holding it in behalf of state
2. Action relating to succession as private person
3. Action relating to any professional or commercial activity in his private capacity
- Extends to members of family provided that they are not nationals of receiving state
2. ADMINISTRATIVE AND TECHNICAL STAFF
3. SERVICE STAFF

INDIVIDUALS - Traditionally objects of PIL. But now, also subject

NATIONALITY

NATIONALITY CITIZENSHIP

A legal bond having as its basis a social fact of Applies only to certain members of the state
attachment, genuine connection of existence accorded more privilege than the rest of people
and interests and sentiments. who owe it allegiance.

- Any question as to whether a person possesses the nationality shall be in accordance with the
law of that state.

DOCTRINE OF INDELIBLE ALLEGIANCE - An individual may be compelled to retain his original

nationality notwithstanding that he has already renounced it under the laws of another state.

DOCTRINE OF EFFECTIVE NATIONALITY LINK - A person having more than 1 nationality shall be
treated as if he had only one either

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1. Nationality of country which he resides habitually and principally

2. Nationality of the country which he appears to be in fact most closely connected.

STATELESS PERSON - No nationality because of deprivation or loss of nationality

- Adversely affects a person’s right to exercise rights and privileges

- International conventions provide that stateless individuals shall be treated more or less like the
subjects of a foreign state.
- A contracting state shall grant its nationality to person born in its territory who would otherwise
be stateless
- A contracting state shall grant its nationality to a person not born in the territory of a
contracting state if nationality of one of his parents at the time of the person’s birth was that of
that state.

REFUGEES - A person who, owing to a well founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group or political opinion, is outside the
country of his nationality and is unable or is unwilling to avail himself of the protection of that
country,

PRINCIPLE OF NON REFOULEMENT - In addition to not returning the refugee to his own state, he
must not be sent to a third state if his life or freedom would be threatened there
EXCEPT
1. Reasonable ground regarding the refugee as danger to the security of the state.
2. Convicted of a particularly serious crime constitutes danger to the community

TREATMENT TO ALIENS
- All states shall treat the aliens as it does to its own nationals.
- No state has an obligation to admit aliens. May set conditions
- State may be held liable for injuries and damages sustained by the alien while in the territory
of the state provided that:
1. International delinquency
2. Act is directly or indirectly imputable to the state.
3. There is indirect injury to the claimant state because of damage to its national.

CALVO DOCTRINE - A state is not responsible for losses incurred by aliens in time of civil war.
CALVO CLAUSE - Prevents appeals by aliens to their home governments for diplomatic
interventions in behalf of their contract rights.

EXTRADITION - The removal of an accused from the requested state 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
penalty. (LARANAGA CASE)

- Sui Generis.

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EXTRADITION DEPORTATION

Pursuant to a treaty Exercise of sovereignty

For the benefit of the requesting state For the interest of the state deporting

ELEMENTS OF EXERCISE OF EXTRADITION

1. Acts of sovereignty on the part of 2 states
2. Request by one state to another state for the delivery of it
3. Delivery of the person for trial or sentence

PERSON SUBJECT - Charged or convicted with offenses that are extraditable under the terms of
extradition.

FUNDAMENTAL PRINCIPLES
1. Based upon bilateral treaty
2. Crime involved shall be both a crime in both states
3. A person surrendered may be tried and punished only for the offense for which extradition
had been sought
4. Differences of legal system is an obstacle for interpretation of crimes
5. RELIGIOUS, MILITARY AND POLITICAL OFFENSES ARE NOT EXTRADITABLE
EXCEPTION: Attentat clause - Assassinations, murder, attempt of the life of the head of
state of either state parties shall not be regarded as political crime.

- A prospective extraditee may be granted bail PROVIDED that he is not a flight risk and there is
compelling reason to grant such.

KER FRISBIE DOCTRINE - Criminal defendants may be tried regardless of whether their presence
before the court was secured from outside its territorial jurisdiction by means of other than
pursuant to valid extradition.

TERRITORY - Defined by geographical areas separated by borderlines from other areas and
united under a common legal system. It includes airspace, above the land and earth beneath it
reaching to the center of the globe.

CONCEPTS OF TERRITORY
1. DELIMITATION - The process of determining the land or maritime boundaries of a state
including that of any continental shelf or exclusive economic zone and is generally done by
means of geographical coordinates.
2. DEMARCATION - Marking a line of delimitation with physical objects such as concrete posts
3. INTERTEMPORAL RULE - Examined according to the conditions and rules in existence at the
time it was made and not at a later date.
4. CRITICAL DATE RULE - The date by which the rights of the parties to a territorial dispute have sy
crystalized that what they do afterwards does not affect legal position.
5. HINTERLAND DOCTRINE - The state that discovers the coast shall also have an exclusive right
to occupy the hinterland.

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- Inchoate Title is acquired by the claimant state pending compliance with ADMINISTRATION

DOCTRINE OF IMMEMORIAL PRESCRIPTION - Long and uninterrupted possession by one nation

excludes the claim of every other.

AIR AND SPACE LAW

KINDS OF AIRSPACE
1. National - Complete and exclusive sovereignty over the airspace above its territory which
are the land areas and territorial waters adjacent thereto.
2. INTERNATIONAL - Not above any state territory

AIR FREEDOMS
1. OVERFLIGHT - Privilege to fly across its territory without landing
2. NON TRAFFIC LANDING - Privilege to land
3. PUTTING DOWN TRAFFIC - Privilege to put down passengers, mail and cargo taken on in the
territory of the state whose nationality the aircraft possesses.

OUTERSPACE - Area that lies beyond the airspace of earth. RES COMMONES
- Not subject to national appropriation by claim of sovereignty.
- Exploration shall be carried out foe the benefit and in the interest of ALL COUNTRIES
irrespective of degree of economic and scientific development.
- Prohibition of use for military application. Only for peaceful operations
JURISDICTION - The state on whose registry an object launched shall retain its jurisdiction and
control over such object.

LAW OF THE SEA

BASELINES - The line from which the outer limits of marine spaces under the national jurisdiction
of the coastal state are measured.

TYPES:
1. NORMAL - Low water line along the coast
2. STRAIGHT - Systems of straight lines joining specified or discrete points on the low water line
which may be used only in localities where the coastline is deeply indented and cut into.
3. CLOSE LINES ACROSS RIVER MOUTHS AND BAYS

ARCHIPELAGIC BASELINE

ARCHIPELAGIC STATES - A state constituted wholly by one or more archipelagos and may
include other islands.

ARCHIPELAGO - A group of islands including the parts of islands, interconnecting waters, and
other natural features which are so closely interrelated that such islands waters and other natural
features form an intrinsic geographical, economic and political entity.

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REQUISITES:
1. Existence of group of islands
2. Historical practice
3. Existence of an intrinsic geographical, economic and political entity.
4. Compactness and adjacency of islands.

STRAIGHT ARCHIPELAGIC BASELINE - Joining the outermost islands and drying reefs of the
archipelago.
- Baselines shall not be drawn to and from low tide elevations unless lighthouses or similar
installations which are permanently above sea level have been built on them
- System of baselines shall not be applied in such manner as to cut off high seas or EEZ

UNDER RA 9522, The baseline laws are enacted by UNCLOS state parties to mark out specific
base points along their coasts from which the baseline are drawn.
- SAID LAW effectively classified KALAYAAN ISLAND GROUP AND SCARBOROUGH SHOAL as
regime of islands consistent with inclos which manifests PH’s observance of Pacta sunt
servanda

ARCHIPELAGIC WATERS - Waters enclosed by archipelagic baselines.

- They do not constitute internal waters.
- BUT IN PH- IW = AW

OBLIGATIONS OF ARCHIPELAGIC STATE

1. Provide for right of innocent passage and that of archipelagic sea lanes passage.
REQUISITES FOR SUSPENSION OF RIGHT OF INNOCENT PASSAGE
1. Take effect only after having been duly published
2. Essential to security
3. Without discrimination
4. Temporary

ARCHIPELAGIC SEA LANES - Exercise in accordance with UNCLOS of the rights of navigation and
overflight in the normal mode solely for the purpose of continuous, expeditious and
unobstructed transit between one part of the high seas.

INTERNAL WATERS -Waters which lie landward of the baseline from which the territorial sea is
measured.

TERRITORIAL SEA - Marine space under the territorial sovereignty of ht coastal state up to a limit
not exceeding 12 nautical miles from the baselines.
OBLIGATIONS OF STATE
1. Protect navigational aids
2. Conserve marine living resources
3. Overall environmental protection and scientific research
4. Preventing infringement of customs, fiscal, immigration and sanitary laws.
5. Ensuring safety of navigation

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6. Prevent passage which is not innocent

- STATE enjoys FULL sovereign rights.

RIGHTS OF STATES TO ITS TS

1. Exercise of criminal jurisdiction
GR: Coastal state cannot exercise criminal jurisdiction on a foreign ship passing through the
territorial sea.
EXC:
1. Consequences extend to coastal state
2. Crime disturbs peace of the country
3. Assistance has been requested
4. Measures as are necessary for the suppression of illicit drugs.

2. Civil jurisdiction
GR: Coastal state cannot exercise civil jurisdiction over foreign ship
EXC:
1. Ship assumed obligations or liabilities
2. Civil proceedings are commenced or concluded against a foreign ship in internal waters

RIGHT OF INNOCENT PASSAGE - Right of foreign merchant ships to pass unhindered through the
territorial sea of a coast.
- Must show their flag
- May not be unilaterally suspended.

ELEMENTS
1. Passage - Without entering internal waters. Stopping or anchoring may only take place
insofar as they are incidental to ordinary navigation or when arrival under stress.
2. Innocence

- FISHING ACTIVITIES are prohibited.

RIGHT OF TRANSIT PASSAGE - Exercise of the freedom of navigation and overflight solely for the
purpose of continuous and expeditious transit of the strait between one part of the high seas or
an EEZ and another part of high seas or EEZ
- May be unilaterally suspended

EXCLUSIVE ECONOMIC ZONE/ PATRIMONIAL SEA- An area beyond and adjacent to the territorial
sea not extending beyond 200 nautical miles from the baseline of the territorial sea
RIGHTS AND JURISDICTION
1. Sovereign rights for the purpose of exploring, exploiting, conserving and managing the
natural resources, whether living or non living of the waters superjacent to the seabed and of
the seabed and its subsoil.
2. Jurisdiction with regard to establishment and use of artificial islands, installations and
structures, Marine scientific research, protection and preservation of marine environment.

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- Sovereign rights in EEZ are exclusive in the sense that no one may undertake these activities or
make a claim to the EEZ without EXPRESS CONSENT of the coastal state

CONTINENTAL SHELF - Seabed and subsoil of the submarine areas that extend beyond its
territorial sea.

CONTINENTAL MARGIN - Comprises of submerged prolongation of the land mass of the coastal
state and consists of the seabed and subsoil of the shelf. It does not include the deep ocean
floor.

RIGHTS OF COASTAL STATE - Sovereign rights for the purpose of exploring it and exploiting natural
resources.

HIGH SEAS - All parts of the sea that are not within the EEZ, territorial sea, internal waters or
archipelagic waters. RES COMMONES. BELONGING TO ANYONE.
No state may subject any part of the high seas to its sovereignty.
FREEDOMS OF THE HIGH SEAS:
1. Navigation
2. Overflight
3. Lay submarine cables and pipelines
4. Scientific research
5. Construct artificial islands and other installations PERMITTED BY PIL
6. Fishing

MARE LIBERIUM PRINCIPLE - Sea is incapable of occupation. It must be free for everyone but
should belong to none.

JURISDICTION OVER COLLISION CASES IN HIGH SEAS

- Penal or disciplinary responsibilities are limited to:
1. FLAG STATE of the vessel alleged to be responsible
2. State of nationality of the accused.
EXCEPT:
1. Pirate ship
2. Slave trade
3. No flag or false flag

RIGHT OF HOT PURSUIT - Allows competent authorities of the coastal state to pursue foreign ship
in the high seas when they have good reason to believe that the ship violated laws and
regulations of that state.
REQUISITES: (CUTE)
1. Commenced when the foreign ship or one of its boats is within the territory of the pursuing
state
2. May only be continued if the pursuit is uninterrupted

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3. Right ceases as soon as the ship pursued enters the territory sea of its own state or of third
state.
4. Right may be exercised only by warships or military aircrafts or other ships or aircraft clearly
marked and identifiable as being on government service.

- SINKING of the pursued vessel is not justified.

THE AREA - The deep sea bed.

INTERNATIONAL TRIBUNAL FORT HE LAW OF THE SEA (ITLOS)

JURISDICTION - All disputes and applications submitted to it in accordance with UNCLOS.

INTERNATIONAL MODES OF SETTLING DISPUTES

JUDICIAL SETTLEMENT - Binding character of an arbitration proceedings.

INTERNATIONAL COURTS
1. International court of justice
2. European courts of human rights

- Parties are under an OBLIGATION to enter into MEANINGFUL negotiations before the
jurisdiction of Security council may be invoked.

ENQUIRY - Ascertainment of pertinent facts and issues in a dispute.

EMBARGO - Forcible detention or sequestration of the vessels and other properties of the
offending state.

INTERNATIONAL HUMAN RIGHTS LAW

UNIVERSAL DECLARATION OF HUMAN RIGHTS - It is not a legally binding treaty but a MERE
DECLARATION OF STATEMENT of generally accepted principles of human rights.

INTERNATIONAL CRIMINAL LAW - Concerned with crimes having an INTERNATIONAL ASPECT OR

DIMENSION.

NULLEN POENA SINE CULPA - No person shall be punished for an act or conduct where there is
no law punishing it as a crime at the time it was committed.

NE BIS IN IDEM ( NOT TWICE FOR THE SAME) - Double jeopardy

ACTUS NON FACIT REUM, NISI MENS SIT REA (THE ACT IS NOT CULPABLE UNLESS THE MIND IS ALSO
GUILTY)

DOCTRINE OF CUMULATIVE CONVICTIONS - Convictions of different crimes charged in the

indictment based on the same conduct are permissible if each crime involved as materially
distinct element.

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AUT DEDERE AUT JUDICARE - Extradite or prosecute.

INTERNATIONAL CRIMES
1. Piracy
2. Slavery
3. Genocide - Any acts with intent to destroy in whole or in part a national, ethnical, racial or
religious group.
4. Crimes against humanity - COLLECTIVE Violations of basic human rights
- ROME STATUTE does not require a connection with ARMED CONFLICT anymore.

5. War crimes - Individuals engaged in armed conflict violate the treaty or customary law that
applies in armed conflicts. Civilians an also commit them when their illegal actions are
facilitated or is connected with armed conflicts.
6. Crimes against aggression (Crimes against peace) - Planning, preparation, initiation or
execution by a person in a position to effectively exercise control to direct the political or
military action of a state to an act of aggression
ACT OF AGGRESSION - Use of armed force by a state against the sovereignty, territorial integrity
or political independence of another state inconsistent with UN

VENUES FOR PROSECUTION OF IC

1. National courts provided it is punishable there
2. International or hybrid criminal tribunals.

INTERNATIONAL CRIMINAL COURT - Established by rome statute. It has the jurisdiction to exercise
for the most serious crimes of international concern.
CRIMES WITHIN ITS JURISDICTION (GH-WA)
1. GENOCIDE
2. CRIMES AGANST HUMANITY
3. WAR CRIMES
4. CRIMES OF AGGRESSION

INDIVIDUAL RESPONSIBILITY - Individuals can be held responsible for certain very serious offenses.
High governmental rank will not immunize an individual from prosecution.
- Military commanders may also be responsible not only for their own crimes but also for any
international crimes committed by troops under their command if they know or should have
known that the troops were committing or were about to commit international crimes.

COMMAND RESPONSIBILITY RESPONDEAT SUPERIOR

Superiors may be held liable for the crime of a Employer or principal is legally responsible for the
subject if they know of it and do not prevent it wrongful acts of an employee or agent if such is
when they could and should prevent it. within the scope of employment

Defense that it did not commit it is not Due diligence may be used as defense
available

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STATE RESPONSIBILITY - State is responsible for commission of international crimes.

NUREMBERG PRINCIPLE
- The fact that internal law does not impose a penalty for an act which constitutes a crime
under international law does not relieve the person who committed the act from responsibility
under international law
- The fact that a person who committed an act which constitutes a crime under international
law acted as Head of state or pursuant to order if his government does not relieve him

STATE TERRORISM - Terrorist acts by one state against another or its national and done either by
the state or commissioned by it.

WAR
- 1987 CONSTITUTION - PH renounces war as an instrument of national policy. However the
congress by a vote of 2/3 of BOTH HOUSES in joint session assembled, voting separately shall
have the SOLE POWER to declare existence of war.

BELLIGERENT OCCUPATION - Temporary military occupation of the enemy’s territory during the
war.
1. Commanded by a person
2. Fixed distinctive emblem
3. Carry arms openly
4. Conduct operations in accordance with the laws and customs of ward

EFFECTS: No change of sovereignty but the exercise of powers of sovereign is suspended.

Political law except law on treason ARE SUSPENDED. Municipal law remains in force.

- PH has the authority to try war criminals after world war 2.

INTERNATIONAL HUMANITARIAN LAW (LAWS OF ARMED CONFLICT)

ARMED CONFLICT - There is a resort to armed force:

1. Between states
2. Protracted armed violence between governmental authorities and organized armed groups
3. Between organized armed groups within a state.

- UN CHARTER states that all members of UN shall refrain in their international relations from the
threat or use of force against territorial integrity or political independence of any state or in
any other matter inconsistent with the purpose of UN.

FUNDAMENTAL PRINCIPLES
1. Principle of proportionality
2. Principle of distinction or discrimination of combatants and civilian

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3. Doctrine of Military necessity - Belligerents may employ any amount and kind of force to
compel the complete submission of the enemy with the least possible loss of lives, time and
money

PLACES NOT SUBJECT OF ATTACK

1. Neutralized areas or zones
2. Non defended localities
3. Cultural property and places of worship
4. Civil defense
5. Dangerous installations
6. Civilians and persons Hors de combats - Persons hors de combats are those who are either
WOUNDED or for other reason PERMANENTLY JOINED CIVILIAN, Rendered unconscious or
incapacitated or incapable of defending himself.
7. Hospitals
8. Objects indispensable of survival of civilian

PERFIDY - Acts of inviting the confidence of an adversary to lead him to believe that he is
entitled to or is obliged to accord protection with intent to betray that confidence.

PRISONERS OF WAR - Person who takes part in hostilities and falls into the power of an adverse
party.
- Treated as prisoners of state

NEUTRALITY

NEUTRALITY NEUTRALIZATION

Dependent on the attitude of neutral state Result of treaty

Governed by national agreements Governed by treaty

Obtains only during war Intended to operate in times of peace and war.

NEUTRALIZED STATE - Status of permanent neutrality in all future wars formally imposed by a group
of great powers.
- Permanent. It has the obligation to remain neutral.

PRIZE COURT - Domestic tribunal that determines the legality of capture by a belligerent enemy
or neutral merchant.

RIGHT OF ANGARY - Right of belligerent state in cases of extreme necessity to destroy or use
neutral property of its own or on enemy territory or in high seas.

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INTERNATIONAL ENVIRONMENTAL LAW

PRECAUTIONARY PRINCIPLE/APPROACH
- When there is a lack of full scientific certainty in establishing a causal link between human
activity and environmental effect, the court shall apply it in resolving the case. The
constitutional right of the people to a balanced and healthful ecology shall be given the
benefit of the doubt.

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