Public International Law Reviewer Jamon

PUBLIC INTERNATIONAL LAW
ATTY. BUTCH JAMON

Definition and Concepts
Soft law
Refers
to
quasi-legal
instruments which do not
have any legally binding
force, or whose binding
force
is
somewhat
"weaker" than the binding
force of traditional law,
often contrasted with soft
law by being referred to as
"hard law".
Legally non- binding.
Ex: UN resolutions
Public International Law
Sources of International law

I.
Hard law
Refers to actual binding

legal
instruments
and
laws. 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.
Legally binding
Ex: treaties
It is the body of rules or

principles recognized as
legally binding governing
nation-states
and
individuals vested with
international personality
II.
Primary sources
a. International treaties
or conventions
b. International custom
c. General principles of
law recognized by
civilized.
Secondary sources
a. Judicial decisions
b. Teachings
of
authoritative
publicists.
Treaties They are the main

instruments with which the
international
community
is
equipped to carry out its
multifarious transactions.
Protocol
usually
amends or supplements
the treaties.
Custom
Exists when a clear and

continuous habit of doing
certain things develops
under the conviction that
it is obligatory and right.
By Ralph Geronga, Lanz Olives, & Alvin Rufino

Notes come in handy only if you have studied
Custom
a
clear
and
continuous
habit
of
doing
certain things develops under
the
conviction
that
it
is
obligatory and right.

ATTY. BUTCH JAMON
General principles of law a
legal rule or principle for the
legal
solution
of
any
controversy.
Decisions of court - these are
the previous decisions of the
international tribunals, such as
the ICJ.
freely elected representatives

of the people have organized
a constitutional government.
What
is
Doctrine?
-
Teachings of authoritative
publicists subsidiary means
for determination of rules of law.
Lex posterior derogat

priori - a subsequent law
imparts the
previous one.
abolition
of
the
Estrada
Claims
that
foreign
governments should not
judge,
positively
or
negatively,
the
governments or changes
in government of other
states, in that such action
would imply a breach of
state sovereignty.
Recognition
What is Lateran Treaty?
- Was one of the Lateran
Pacts of 1929 or Lateran
Accords,
agreements
made in 1929 between
the Kingdom of Italy and
the Holy See, settling the
"Roman Question".
- This
treaty recognized
Vatican as a nation state
What is the Tobar/ Wilson
Doctrine?
Under this principle, it is
suggested that recognition
shall not be extended to any
government established by
revolution, civil war, coup
detat or other forms of
internal violence until the
State recognition has a

retroactive effect
What is Recognition?
A unilateral political act with
domestic and international legal
consequences, whereby a state
acknowledges an act or status
of another state or government
in control of a state
- A procedure whereby the
governments of existing states
respond to certain changes in
the world community (Grant)
- An activity of States as a
legal person of international
law
The recognizing state will
enter into relations with the

ATTY. BUTCH JAMON
recognized State and let that
State to enjoy usual legal
consequences of recognition
such
as
privileges
and
immunities within the domestic
legal order.
4 ESSENTIAL ELEMENTS OF A
STATE
1.
2.
3.
4.
5.
PEOPLE
TERRITORY
GOVERNMENT
INDEPENDENCE
Recognition- considered as
an additional element of a
state
2 KINDS OF RECOGNITION
1. DE JURE - it has a relative
permanent
status
of
recognition
and
has
acquired stability to fulfill
international obligations.
2. DE FACTO - it is a
provisional
recognition
and limited to certain
juridical relations.
2
THEORIES
RECOGNITION
OF
1. Constitutive
theorydefines a state as a
person of international law
if, and only if, it is
recognised as sovereign
by other states. Under it,
a state was sovereign if

another sovereign state

recognised it as such.
2. Declarative theory - a state
as a person in international
law if it meets the following
criteria:
1) a defined territory;
2) a permanent population;
3) a government and
4) a capacity to enter into
relations with other states, so
long as it wasn't achieved by
force whether this consists in
the employment of arms, in
threatening
diplomatic
representations, or in any other
effective coercive measure.
-Entitys statehood is
independent of its recognition
by other states.
Consequences of
Recognition and nonRecognition
Recognition
effects)
(the
legal
1.Capacity to enter
2. Right to sue
3. Immunity
4. Receive Property
5.Validated acts and decrees

ATTY. BUTCH JAMON
Non-Recognition
1. Deprivation
2. inability to sue
3. Acts and decrees are nullities
4. Agents do not posses and
diplomatic rank
Insurgency vs Belligirency
Insurgency - armed rebellion
or group of rebels attempting to
overthrow the existing
government of a State
2.
Occupation
of
a
substantial portion of
the national territory
3.
Seriousness of the
struggle
4.
Willingness on the
part of the rebels to
observe the rules and
customs of war
ACT OF THE STATE DOCTINEBelligerency:

the
term
belligerency
presupposes the existence of a
state of war between two or
more States, or actual hostilities
amounting to civil war within a
single State.
-
if such hostilities assume

widespread
proportions,
they may be treated as
belligerentsthe status of
insurgency may, as it
often does, ripen into one
of belligerency
4 requisites of belligerency:
1.
An organized
civil government that
has
control
and
direction
over
the
armed
struggle
launched by the rebels

states
that
every sovereign state is bound
to respect the independence of
every other sovereign state, and
the courts will not sit in
judgment
of
another
government's acts done within
its own territory.
Sabbatino DOCTRINE- IS THE

APPLICATION OF ACT OF THE
STATE DOCTINE
Sabbatino Amendment -
Not surprisingly, the Sabbatino

case provoked an uproar in
the U.S. Congress. Before the
case could be reviewed by the
District Court (on remand),
Congress
passed
the
so-

ATTY. BUTCH JAMON
called Second
Hickenlooper
Amendment (or
Sabbatino
Amendment) that revoked this
presumption in favor of the
validity of the act of state
doctrine that the Sabbatino
court had established. The
Amendment was retroactive and
subsequently
found
constitutional by the District
court and the Cuban bank's
complaint was dismissed. This
amendment
to
the Foreign
Assistance Act has clarified that
courts may proceed with an
adjudication
on
the merits unless the President
states that such adjudication
may embarrass foreign policy
efforts, but the amendment has
been construed very narrowly
by subsequent court decisions.
leadership as 4 elements of
statehood are still present.
State succession - refers to
the succession by one State to
the rights of control within and
supremacy
over
territory
possessed by another.
Res
Transit
Cum
suo
oneremeans
that
liabilities
and
obligations are also assumed by
the successor state.
- even liabilities are also gained
Odious DebtsThese are debts to finance the
war against the successor state.
Successor
state
does
not
assume this liability.
Tort Liablity- cant be assumed
by the successor state.
What is effect of state
succession to:
Succession of States
State continuity
succession
vs
State
State
continuity
Legal
existence of a state continues
notwithstanding
in
size
of
territory,
people,
form,
or
1. Political
laws
abrogated.
2. Public
properties
acquired by successor.
3. Treaties - may not bind
successor state.
4. Routinary
acts
administrationbinding.
are
are
the
of
are
5 Rights and Duties of states

ATTY. BUTCH JAMON
1.
Right of existence and

self preservation
2. Right of sovereignty and
independence
3. Right of equality
4. Right of territory and
jurisdiction
5. Right to delegation and
Diplomatic relations
Self Defense by Nations
Chapter VII of the United

Nations Charter
Customary international
law
o Imminent threat
Imminent threat
Doctrine
immunity
charter-
of
sec
sovereign
51 of UN
Chapter VII of the United

Nations Charter
Article 51: Nothing in the
present
Charter
shall
impair the inherent right
of collective or individual
self-defense if an armed
attack occurs against a
member of the United
Nations, until the Security
Council has taken the
measures necessary to
maintain
international
peace
and
security.
Measures
taken
by
members in exercise of
this right of self-defense
shall
be
immediately
reported to the Security
Council and shall not in
any
way
affect
the
authority
and
responsibility
of
the
Security Council under the
present Charter to take at
any time such action as it
deems necessary in order
to maintain or restore
international peace and
security.
Article 51 acknowledges
this general right, and
proceeds to lay down
procedures for the specific
situation when an armed
attack does occur.
Under
the
latter
interpretation,
the
legitimate use of selfdefense in situations when
an armed attack has not
actually occurred is still
permitted.
It is also to be noted that
not every act of violence
will constitute an armed
attack.
Customary international law

The traditional customary
rules on self-defence
derive from an early
diplomatic incident
between the United States
and the United Kingdom
over the killing on some
US citizens engaged in an
attack on Canada, then a
British colony.
The so-called Caroline

case established that
there had to exist "a
necessity of self-defense,
instant, overwhelming,

ATTY. BUTCH JAMON
leaving no choice of
means, and no moment of
deliberation,' and
furthermore that any
action taken must be
proportional, "since the
act justified by the
necessity of self-defense,
must be limited by that
necessity, and kept clearly
within it."
Imminent threat
The imminent threat is a

standard criterion in
international law,
developed by Daniel
Webster as he litigated
the Caroline affair,
described as being
"instant, overwhelming,
and leaving no choice of
means, and no moment
for deliberation."
The criteria are used in the

international law justification of
preemptive
self-defense:
self-defense
without
being
physically attacked first.
Draco doctrine
resolution
vs
porter
Drago DoctineThe
doctrine
held
that
international
law
did
not
authorize European powers to
use armed intervention to force

American republics to pay public

debts.
Porter ResolutionStates
that
whenever
the
President determines that the
arms and munitions procured
from US is used for domestic
violence or international conflict,
it shall become unlawful and
shall stop the importation.
Unless, the President or the
congress determines it to be
necessary.
Monroe Doctrine
was a US foreign policy
regarding Latin American
countries in 1823. It stated that
further efforts
byEuropean nations
to colonize land or interfere with
states in North or South
America would be viewed as
acts of aggression, requiring
U.S. intervention.
French rule
the vessel not under jurisdiction
of state unless it affects the
territorial state
British rule
once the vessel enters a
territorial state, then it is now

ATTY. BUTCH JAMON
under its jurisdiction.
Cabotage the right to
transport goods from one port to
another in the domestic country.
Usually given to local vessels
Right to innocent passage right allowed only in territorial
waters.
A term of international law
referring to a ship to enter and
pass through another's territory
so long as it is not prejudicial to
the peace, good order or
security of the other state.
men-of-war or military
aircraft to pursue a foreign
merchant vessels which
have
violated
the
municipal laws of that
state while within the
territorial waters, into the
open sea and bring them
back to the national
domain
for
the
administration of justice.
Such pursuit is permissible
only if commenced before
the pursued vessel has
actually escaped from the
territorial waters and is
continued
without
interruption until it is
overtaken and seized
Ex-territoriality
extraterritoriality?
Territorial Sea
Comprises the waters in

the so-called maritime or
marginal belt surrounding
the land area
May include waters in the
bays, gulfs and straits
which do not have the
character of historic
waters .
12nm from the baseline
Hot pursuit?
Right of a state through

the instrumentality of its

vs
Ex-territoriality- is the state of

being
exempted
from
the jurisdiction of local law, usually
as
the
result
of
diplomatic
negotiations. Ex-territoriality can
also be applied to physical places,
such as foreign embassies, military
bases of foreign countries, or offices
of the United Nations.
SO IT APPLIES TO BOTH
PERSONS AND PLACES.
Extraterritoriality is just the
same but applies only to
PERSONS.
What
is
involuntary
entrance?
Foreign vessels arriving into
port under stress of weather

ATTY. BUTCH JAMON
by
reason
of
inevitable
necessity are regarded as
exempted from the local
jurisdiction. They are not
subject to fines or duties.
To be placed under the
exception, there should
be urgent necessity. It
must be grave.
Means
that
the
state
is
responsible because of its acts
or omission by its government
officials or even by its private
individuals or citizens, which
resulted to the injury of the
foreigners or their properties.
Jurisdiction of State
Calvo Clause
The Lotus Doctrine- the state

may punish an act which
happens outside its territory of
its effect is felt in its territory.
Jurisdiction- refers to the
power to exercise authority with
in persons or territory.
Nationality
PrincipleWherever you may go you are
subject to the laws of your state
No one exercises jurisdiction to
high seas and outer space or
international space.
Exception to Jurisdiction:
1.
2.
3.
4.
Genocide
Crimes against humanity
War crimes
Piracy
_This
is
because
of
Principle of Universalitywhich means that any
state has jurisdiction over
these circumstances.
State Imputability-

Deprivation of any rights

as aliens and prevents
requests for diplomatic
protection in relation to
the contract.
A provision in an agreeme
nt between a private indiv
idual and a foreign state t
hat says, in effect, that "al
iens are not entitled torigh
ts and privileges not accor
ded to nationals, and that,
therefore, they may seek r
edress for grievances only
before localauthorities."
the alien waives the

protection of his State by
agreeing to be considered
as a national of the State
which he has contracted.
It is expressly stated that
the alien shall not seek
foreign diplomatic
intervention.
Problem:
An alien resorts to local
judicial remedies but finds a
gross deficiency in
administration of the judicial

ATTY. BUTCH JAMON
process, amounting to a denial
of justice, is his home State
precluded from taking up his
case, because of the Calvo
clause?
Answer: No! An alien cannot
waive a right that does not
belong to him but his
government.
treatment.
Drago DoctineThe doctrine held that

international law did not
authorize European powers to
use armed intervention to force
American republics to pay public
debts.
International Delinquency
"The treatment of an alien

in order to constitute an
international delinquency,
should amount to an
outrage, to bad faith, to
willful neglect of duty or to
an
insufficiency
of
government action so far
short
of
international
standards
that
every
reasonable and impartial
man
would
readily
recognize
its
insufficiency."
Extradition
Any
act
committed
contrary to a rule of
international law by any
person
either
directly
against any other state or
directly
against
its
subjects or its officials.
Process
whereby
a
sovereign makes a formal
request
to
another
sovereign that a fugitive in
the latter be transferred to
the former.
Attentat clause
International
Justice
Standard
of
An alien living in a foreign

country is entitled under
international law to a
certain
standard
of

A general exception to
extradition where it is not
considered
a
political
offense to murder or to
make an attempt at the
life of the head of a state ,
or a member of his family,

ATTY. BUTCH JAMON
or sometimes, a member
of the government.
Principle
Criminality
of
Double
A requirement in the
extradition law of many
countries, where a suspect
can be extradited from
one country to stand trial
for breaking a second
countrys law only when a
similar law exists in the
extraditing country.
Also
known
as
dual
criminality.
Principle of Specialty
International
Agreements
In
PSS,
every treaty in
force is binding upon the
parties to it and must be
performed
by
them

Pacta Sunt Servanda
The agreements must

be kept every treaty in
force and binding upon
the parties and must
be performed by them
in good faith.
Rebus Sic Standibus
A
requirement
in
extradition
that
the
receiving
state
not
prosecute the individual
being extradited but for
the offense for which
extradition was sought.
Pacta
Sunt
Servanda
Rebus Sic Stantibus
in good faith. However,

RSS also allows for treaty
obligations
to
be
unfulfilled
due
to
a
compelling or fundamental
change in circumstances.
RSS is essentially an
"escape
clause"
that
makes an exception to the
general rule of PSS.
- A condition in an
agreement or treaty to the
effect that they will no longer be
binding as soon as the facts and
conditions upon which they were
based changes to a substatial
degree.
Principle of Alternat
Refers to the principle in
which the states own
name will be listed ahead
of the other signatories of
the agreement in its own
official copy.
Principle of Accession
Non
signatories

ATTY. BUTCH JAMON
becomes a party to a
treaty
Under International law

There is no difference
between a treaty and an
executive agreement. Both are
binding under international law
with or without ratification.
Reservation in International
Agreements
Unilateral statement whereby it
purports to exclude or modify
the legal effect of certain
provisions of the treaty.
the
making
of
a
reservation
allows
a
country to be bound by an
international treaty while
attempting to be excused
from
some
specific
requirement.
reservations apply only to
the country making them
and are generally only
found
with
the
"instruments
of
ratification" of a particular
treaty or in an annex to
the treaty.
Right of Angary
A
belligerent
may

upon
payment of just compensation

seize, use, or destroy, I case of
urgent necessity for purpose of
offense or defense a neutral
property found in its territory or
in enemys territory, or in the
high seas.
Doctrine
Destination
of
Ultimate
Means that the ships

or
shipment going or passing
through a blockade could be
seized. It makes the goods a
contraband.
Neutrality v Neutralization
1. Neutrality dependent on
attitude of a neutral state
whereas neutralization is
based on treaty
2. Neutrality is governed by
law of nations whereas
neutralization is by treaty
agreements
3. Neutrality obtained during
war,
neutralization
operates in times of war
and peace.
4. Only states can be neutral
while neutralization may
apply
to
portions
of
territory

ATTY. BUTCH JAMON
ThalwegThe middle
navigable river.
part
Crimes of Conscience-

of
the
These are the crimes based on

your beliefs, thus, cant be a
ground to extradition.
Such as: Religious and Political
crimes.

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PUBLIC INTERNATIONAL LAW

ATTY. BUTCH JAMON