Il Finals Barops

GENERAL PRINCIPLES
 Distinguish General International Law from Particular International Law.

 General (or Implicit) International Law consists of general principles of law, as opposed to
Particular (or Explicit) International Law which embraces specific agreements and specific
customs. In another angle, General International Law refers to that recognized by the family of
nations or the world at large, while Particular International Law refers to that followed by a
particular country.
✒ What is Universal International Law?
 Differentiate IL from ML.

o From the viewpoint of MONISTS, there can be no difference because IL and ML are one and
the same law.
o From the viewpoint of DUALISTS, the 2 laws are distinct and separate and may be
distinguished as follows:
1. IL is a law of coordination;
ML is a law of subordination.
2. IL regulates the relations of state and other international persons;
ML regulates the relations of individuals among themselves or with their state.
3. IL is derived principally from treaties, international customs, and general principles of law;
ML consists mainly of statutory enactments.
4. IL is generally enforced by the subject themselves through methods of self-help;
ML is enforced by a regular and pre-existing machinery for the administration of
justice.
5. IL usually entails collective responsibility;
ML entails individual responsibility.
 What is considered weaker, IL or ML?

 IL is the weaker law. Whereas ML is a law of a sovereign over those subjected to his sway, IL is a
law, not above, but between, sovereign states and is, therefore, a weaker law.
 What is the Doctrine of Transformation?

 The Doctrine holds that the generally accepted principles of international law are not
per se binding upon the state but must first be embodied in legislation enacted by the
lawmaking body and so transformed into municipal law. Only when so transforms will
PREVIOUSLY ASKED QUESTIONS IN

they become binding upon the state as part of its municipal law.
PREVIOUSLY ASKED QUESTIONS IN PIL

KURODA VS. JALANDONI
FACTS:
Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding General of the Japanese Imperial
Forces in the Philippines during a period covering 1943 and 1944, was charged before a Military Commission of the Armed
Forces of the Philippines, with having unlawfully disregarded and failed "to discharge his duties as such commander to
control the operations of members of his command, permitting them to commit brutal atrocities and other high crimes against
noncombatant civilians and prisoners of the Imperial Japanese Forces, in violation of the laws and customs of war"
ISSUE:
W/N a military commission has jurisdiction to try Kuroda for acts violative of the Hague and Geneva Conventions though the
Philippines was not a signatory of the first and signed the second only in 1947, after the commission of the violations
RULING:
The rules and regulations of the Hague and Geneva conventions form part of and are
wholly based on the generally accepted principles of international law. Such rules and
principles, therefore, form part of the law of our nation even if the Philippines was not a
A N A L I A
signatory to the conventions embodying them, for our Constitution has been deliberately
general and extensive in its scope and is not confined to the recognition of rules and
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principles of international law as contained in treaties to which our government may have
been or shall be a signatory.
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Just a study guide.  1

 In case of conflict between a treaty and the Philippine Constitution, which will prevail?
 The Constitution will prevail. Section 5(2)a, Article VIII of the 1987 Constitution authorizes the
nullification of a treaty when it conflicts with the Constitution. In states where the constitution is
the highest law of the land, such as ours, treaties may be invalidated if they are in conflict with
the constitution.
 In case of conflict between a treaty and a statute, which will prevail?

 First, efforts should be exerted to harmonize them, so as to give effect to both, This is because it
is presumed that ML was enacted with proper regard for the generally accepted principles of IL in
observance of the incorporation clause. However, if the conflict is irreconcilable and a choice has
to be made between the two, jurisprudence dictates that the municipal courts should uphold ML, it
being a valid exercise of the police power of the state.
 What is the basis of IL?

 There are 3 theories as to the basis of IL.
 Under the Naturalist School of Thought, IL is based on those rules of conduct discoverable by
every individual in his own conscience and through the application of right reason.
 Under the Positivist School of Thought, IL is based on the consent of states, and on such consent
alone.
 Under the Eclectic or Grotian School of Thought, IL is binding partly because it is good and right
and partly because states have agreed to be bound by it.
 What are the sanctions of IL?

 The sanctions of IL are:
1. Belief in the inherent wisdom of IL,
2. Habits of obedience,
3. Respect for world opinion,
4. Fear of reprisals or punishment, and
5. The UN.
 Is IL a true law?
It depends.
 Under the Austinian Concept, international law may not qualify as true law because it is
not promulgated by a superior authority and no penalties are formally prescribed for its
violation.

 However, in the sense that some laws have become valid rules of conduct by mere

agreement or acceptance by the members of the community and are observed because
of their intrinsic merit and notwithstanding the absence of specific penalties for their
violation, then IL may be regarded as true law.
SOURCES OF INTERNATIONAL LAW
 Differentiate International Custom from Usage. What are the defects of

International Custom as a source of IL?
 An international custom is a long-established way of doing things by states under the
conviction that it is obligatory and right. Usage does not carry this conviction.
 The defects of customs as a primary source of IL are:
1. Difficulty in determining when a practice has hardened into a custom and thus
acquired obligatory character, and
2. Difficulty of some customs, owing to their slow process of evolution, to adjust to
the swift developments of the international society they are supposed to govern.
A N A L I A
 Differentiate bilateral treaties from multilateral treaties. Is there a substantial

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difference between them?

 A bilateral treaty is a formal agreement which is signed by two countries. It binding
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only upon the signatories and cannot apply to the rest of the international community

which had no participation in its negotiation or adoption. Bilateral treaties may become
primary sources of IL if they are of the same nature, contain practically uniform
provisions and are concluded by a substantial number of states, albeit separately.
 There is a substantial difference between a bilateral treaty and a multilateral treaty as the latter is
a formal agreement which is signed by more than two countries. Multilateral treaties may be a
primary source of IL when it is signed by a sizable number of states and thus reflect the will or at
least the consensus of the family of nations.
THE INTERNATIONAL COMMUNITY

 Differentiate SUBJECT from OBJECT.
 A SUBJECT is an entity that has rights and responsibilities under international law. It has an
international personality in that it can directly assert rights and be held directly responsible under
the law of nations. It has the faculty of motivation such that it can be a proper party in
transactions involving the application of the law of nations among members of the international
community.
 On the other hand, an OBJECT is the person or thing in respect of which rights are held and
obligations assumed by the subject. Its rights are asserted and responsibilities imposed indirectly,
through the instrumentality of the subject.
 What can an injured individual do to secure redress of a wrong conducted by a foreign

state?
 The individual can ask his own government to espouse his cause through diplomatic channels as in
theory, it is the state whose right – i.e., the right to have its nationals respected by other states –
has been violated.
 By taking up the case of one of its subjects and by resorting to diplomatic action or international
judicial proceedings on his behalf, a State is in reality asserting its own rights – its right to ensure,
in the person of its subject, respect for the rules of international law. (Holy See vs. Rosario,
1994)
 From the traditional point of view, is the individual a subject of IL?

 Traditional concept regards the individual as an OBJECT of IL who can act only through the
instrumentality of his own state in matters involving relations with other states. In theory, it is the
state whose right – i.e., the right to have its nationals respected by other states – has been
violated. Hence, it is the state and not the individual that can be the proper party in the assertion
of an international claim for damages.

 Differentiate a REAL UNION from a FEDERAL UNION.

 A REAL UNION is created when 2 or more states are merged under a central authority
through which they act in the direction of their external affairs. The states retain their
status as states but their international personalities are extinguished, creating 1
international person.
 A FEDERAL UNION or a federation, on the other hand, is a combination of 2 or more
states which, upon merger, cease to be states, resulting in the creation of a new state
with full international personality to represent them in external relations and a certain
degree of power over their domestic affairs and their inhabitants.
 Why is the United Nations considered as an international person?

 The UN is regarded as an international person. Like states,:
1. It enjoys certain privileges and immunities, such as non-suability, inviolability of
its premises and archives, and exemption from taxation.
2. It has the right of legation.
3. It can assert a diplomatic claim on behalf of its officials.
A N A L I A
4. It may conclude treaties.

5. It can wage war, in a sense.
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 Peace negotiations do not imply recognition by the country where it is held. In

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holding peace talks in a foreign country, such country is a “neutral state.”

 Explain the phrase, “THE INDIVIDUAL IS THE REAL AND ONLY SUBJECT OF IL.”
 While as a general rule, IL has as its subjects STATES, it exceptionally applies to individuals
because it is to man that the norms of IL apply, it is to man whom they restrain, it is to man who
IL thrusts the responsibilities of law and order. Thus, the individual is the real and only subject of
IL.
THE UNITED NATIONS
 Explain the Domestic Jurisdiction Clause.

 This clause is embodied in Section 7, Article 2 of the UN Charter. Under this clause, as long as
matters remain internal, the same cannot be the subject of intervention by the UN.
 What are the principal functions of the ICJ?

 The principal functions of the ICJ are to decide contentious cases and to render advisory opinions.
 When may advisory opinions be given by the ICJ?

 Advisory opinions may be given by the ICJ upon request of the General Assembly or the Security
Council, as well as other organs of the UN, when authorized by the General Assembly, on legal
questions arising within the scope of their activities.
 What is Yalta Formula?

 Under the Yalta Formula:
o Decision on procedural matters is to be made by the affirmative vote of any 9 members of the
Security Council.
o Decision on non-procedural matters is to be made by the affirmative vote of 9 members of the
Security Council, including all the permanent members.
o No member, permanent or not, is allowed to vote on questions concerning the pacific
settlement of a dispute to which it is a party.
 What is a Double Veto?

 The classification of a question as procedural or non-procedural question is a non-procedural
matter.
 In all non-procedural matters, each permanent member of the Security Council is given a 'veto' -
a Security Council decision is ineffective if even one permanent member votes against it.
 A permanent member can veto any proposal to classify a question as merely procedural
and thereafter veto against any draft resolution dealing with that question, thereby

exercising a double veto.

 What are the functions of the UN General Assembly?
 Some of the functions of the UN GA are:
1. Deliberative. It is empowered to discuss principles regarding the maintenance of
international peace and security.
2. Supervisory. It receives and considers reports, makes recommendations for the
coordination of activities of the different organs of the UN, etc.
3. Elective. Important voting functions are vested in the GA, such as the election of
the non-permanent members of the SC.
4. Budgetary. It controls the finances of the UN, etc.
5. Constituent. It participates in the amendment of the UN Charter.
 What is a military staff committee.

 A Military Staff Committee is a committee established by the UN Charter (Article 47)
which shall advise and assist the Security Council on all questions relating to the
A N A L I A
Security Council’s military requirements for the maintenance of international peace and
security, the employment of forces placed at its disposal, the regulation of armaments
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and possible disarmament. It is made up of military representatives of the 5 permanent

members.
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 What are the privileges and immunities exercised by the UN?
 The UN enjoys certain privileges and immunities, such as non-suability, inviolability of its premise
and archives, and exemptions from taxation. It also has the right of legation. It can assert a
diplomatic claim on behalf of its officials and treaties may also be conducted by it.
 How are judges of the ICJ chosen?

 Nominations are made by the national groups created by their respective governments.
 Candidates obtaining an absolute majority in the GA and CS are considered elected. If more than
one national of the same state obtain the requisite majority in both bodies, the oldest is chosen.
THE CONCEPT OF THE STATE
 What is the Principle of State Continuity?

 Under the Principle of State Continuity, from the moment of its creation, the state continues as a
juristic being notwithstanding changes in its circumstances, provided only that they do not result
in loss of any of its essential elements.
 What are the consequences of State Succession?

 The consequences of state succession are the following, to wit:
1. The allegiance of the inhabitants of the predecessor state is transferred to the successor state.
2. The political laws of the predecessor state are automatically abrogated but the non-political
laws are deemed continued unless expressly repealed or contrary to the institutions of the new
sovereign.
3. The public property of the predecessor state is acquired by the successor state but not the tort
liability and in some cases, the contractual liability of the former.
4. Treaties entered into by the predecessor state are not considered binding on the successor
state except those dealing with local rights and duties such as servitudes and boundaries.
 What are the consequences of Government Succession?

 The consequences of government succession are the following, to wit:
1. Where the change is effected by peaceful means, the new government inherits all the rights
and obligations of the old government.
2. Where the change is effected by violence, the new government inherits all the rights
of the old government. As to the obligations, they may be rejected if they are of a
political complexion but must be respected if they are the consequence of the

routinary acts of administration of the old government.

BANCO NACIONAL DE CUBA VS. SABATINO
Mere breach of diplomatic relations does not have the effect of withdrawing the
right to sue. Lacking some definite touchstone for determination of friendliness,
any relationship, short of war, with a recognized sovereign power embraces the
privilege of resorting to courts.
No, as relations between the 2 states shall then be governed by the Laws of War. The
practice of states are varied. Some consider the enemy persons ex lege during the whole
duration of the hostilities.
 What is the effect of change of government/state in the grant of title?

 It does not nullify a grant of title, it being a non-political act by the state which is
deemed continued and effective after a state succession.
A N A L I A
RECOGNITION
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 What is the nature of Recognition?

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 There are 2 views as to the nature of recognition.

 Under the general view, recognition is declaratory, discretionary or political, that it merely affirms
an existing fact, like the possession of the state of all its essential elements, and that it may be
granted or withheld at pleasure.
 Under the minority view, recognition is constitutive, compulsory or legal, such that it is the act of
recognition that constitutes the recognized entity into an international person and that such act
may be compelled once the elements of international personality are established.
 What are the effects of the Recognition of a State or Government?

 The effects of the recognition of a state or government are the following, to wit:
1. Full diplomatic relations are established except when the government recognized is de facto.
2. The recognized state or government acquires the right to sue in the court of the recognizing
state.
3. The recognizing state or government is entitled to the possession of the properties of its
predecessors in the territory of the recognizing state.
4. All acts of the recognized state or government are validated retroactively, preventing the
recognizing state from passing upon their validity on its own courts.
 Explain the Tobar Principle.

 The Tobar or Wilson Doctrine precludes the recognition of a government established by revolution,
civil war, coup d’etat or other forms of internal violence until the freely elected representatives if
the people have organized a constitutional government.
 Explain the Estrada Doctrine.

 Under the Estrada Doctrine, the diplomatic representatives in a country where a political upheaval
has taken place will deal or not deal with whatever is in control therein at the time and either
action shall not be taken as a judgment on the legitimacy of the said government.
 Explain the Stimson Doctrine.

 The Stimson Doctrine precludes the recognition of any government established as a result of
external aggression.
 What are the practical criteria for the recognition of a government?

 The practical criteria for the recognition of a government are:
1. It has control of the administrative machinery of the state with popular acquiescence
(OBJECTIVE TEST)
2. It is willing and able to comply with its international obligations. (SUBJECTIVE TEST)

 Does possession of the 4 elements of the state automatically extend membership
in the Family of Nations?
 It depends.
 Under the majority view, recognition is declaratory, discretionary and political such that
an entity’s admission to the Family of Nations is dependent on the acknowledgment of
its status by those already within their fold and their willingness to enter into relations
with it as a subject of IL.
 However, under the minority view, recognition is constitutive, compulsory and legal
such that recognition may be demanded as a matter of right once the elements of
statehood are established.
 What is the effect of common membership in the UN of states not recognizing

each other?
 In practice, such states are deemed to recognize each other only within the
organization and not elsewhere.
A N A L I A
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THE RIGHT OF EXISTENCE AND SELF-DEFENSE
 Is there a difference between the UN Charter and the International Customary Law
regarding the permissible use of force?
 Yes.
 Under the UN Charter, there is permissible use of force only
1. In case of individual or collective self-defense, or
2. In pursuance of a decision or recommendation of the SC to take forcible action against an
aggressor.
 Under International Customary Law, use of force is allowed as a preventive measure.
✒ What are the conditions for the proper exercise of the right of self-defense under Article 51
of the UN Charter?
1. There must be an armed attack
2. Self-defensive action taken by the attacked state must be reported immediately to the
Security Council
3. Such action shall not in any way affect the right of the Security Council to take at any
time such action as it deems necessary to maintain or restore international peace and
security.
✒ Distinguish collective self-defense from regional arrangement.
THE RIGHT OF INDEPENDENCE
 What is intervention?
 It is an act by which a state interferes with the domestic or foreign affairs of another state or
states through the employment of force or threat of force.
 When is intervention allowed?

 The following are the instances where intervention is sanctioned in international relations
(Instances when the use of force is allowed under the UN Charter):
1. In case of individual or collective self-defense, or
2. In pursuance of a decision or recommendation of the SC to take forcible action against an
aggressor.
THE RIGHT OF EQUALITY


 Does right of equality imply equality in the number of rights?
 No. Right of equality does not mean parity in the number of rights, as it is possible for
one state to have more rights than another. What is important is that whatever the
number of the rights of the state may be, all of them are duly recognized and observed
in the international community.
TERRITORY AND JURISDICTION
Exterritoriality Extra-territoriality
Foreign persons and their things are exempted from Foreign persons are exempted from
the jurisdiction of a state on the theory that they the laws and jurisdiction of the state
form an extension of the territory of their own state. in which they presently reside.
Premised on international custom Can exist only because of a treaty
 What are the methods in defining the territorial sea.

A N A L I A
 They are the Normal Baseline Method and the Straight Baseline Method.
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o Under the Normal Baseline Method, the territorial sea is drawn from the low-water
mark of the coast to the breadth claimed, following its sinuosities and curvatures
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but excluding the internal waters in bays and gulfs.

o Under the Straight Baseline Method, straight lines are made to connect appropriate points on
the coast without departing radically from its general direction. The waters inside these lines
are considered internal.
 What are the modes of acquiring territory?

 The modes of acquisition of territory are:
1. Discovery and Occupation. Territory not belonging to any state, or terra nullius, is placed
under the sovereignty of the discovering state.
2. Prescription. Long, continued and adverse possession of land vests acquisitive titles in the
claimant.
3. Cession. Territory is transferred from on state to another by agreement between them.
4. Subjugation. Territory which has been previously conquered or occupied in the course of
war is formally annexed to it at the end of that war.
5. Accretion. It may either be natural or artificial, such as by gradual deposit of soil on the
coasts, or by reclamation projects.
 What is a bay? What is the nature of its internal waters?

 A bay is a well-marked indentation whose penetration is in such proportion to the width of its
mouth as to contain landlocked waters and constitute more than a curvature of the coasts.
 Its area should be as large or larger than a semi-circle whose diameter is a line drawn across the
mouth of that indentation.
 If the mouth of the indentation is less than 24 miles, a closing line may be made and all the
waters enclosed thereby will be considered internal waters.
 What is continental shelf?

 The continental shelf refers to the seabed and subsoil of the submarine areas adjacent to the coast
but outside the area of the territorial sea, to a depth of 200 meters or, beyond that limit, to where
the depth of the superjacent waters admits of the exploitation of the natural resources of the said
area.
 What are the exceptions to the territorial jurisdiction of a state?

 The exceptions are:
1. Foreign states, heads of states, diplomatic representatives, and consuls to a certain degree.
2. Foreign state property, including embassies, consulates and public vessels
engaged in non-commercial activities.
3. Acts of state.

4. Foreign merchant vessels exercising the right of innocent passage or arrival

under stress.
5. Foreign armies passing through or stationed in its territories with its permission.
6. Such other persons or property, including organizations like the UN, over which it
may, by agreement, waive jurisdiction.
 What is the Act of State Doctrine?

 The Act of State Doctrine states that every sovereign state is bound to respect the
independence of other state and the court of the country will not sit in judgment to the
acts of the foreign government done within its territory. Redress of grievances by
reason of such acts must be obtained through the means open to be availed of by
sovereign powers as between themselves.
✒ What is the doctrine of hot pursuit? What are the conditions for its application?
o The pursuit of a foreign vessel undertaken by the coastal State which has good reason
to believe that the ship violated the laws and regulations of that State.
A N A L I A
o The pursuit:
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1. Must be commenced when the ship is within the pursuing State’s internal waters,
territorial sea or contiguous zone;
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2. May continue outside such waters if the pursuit has not been interrupted;
3. Must be continued and unabated;
4. Ceases as soon as the foreign ship enters the territorial sea of its own state or that of a third
state; and
5. Must be undertaken by warships or military aircrafts, or any ship/aircraft cleared and
identifiable as being in the government service and authorized to that effect.
✒ What state exercises jurisdiction over offenses committed onboard an aircraft in flight?
o The state of registration of the aircraft has jurisdiction over offenses committed onboard an
aircraft in flight or over the high seas or any other area outside the territory of any state, except
when:
1. The offense has effect on the territory of another state
2. The offense has been committed by or against a national or permanent resident of another
state
3. The offense is against the security of another state
4. The offense consists of a breach of any rules or regulations relating to the flight or maneuver
of aircraft in force in another state;
5. The exercise of jurisdiction is necessary to ensure the observance of any obligation of another
state under a multilateral international agreement.
✒ What is the contiguous zone? Does the coastal state exercise protective jurisdiction over
it? To what extent?
o Contiguous zone is that zone contiguous to the coasts of the State beyond the territorial sea but
not in excess of 12 miles from the outer limits of the territorial seas. Over it, the coastal State
exercise a protective jurisdiction to prevent and punish infringement of its customs, fiscal,
immigration or sanitary regulations.
✒ Distinguish between internal waters and territorial waters of the Philippines (2004 BAR).
o Territorial waters is defined by historic right or treaty limits while internal waters is defined by the
archipelago doctrine. The territorial waters, as defined in the Convention on the Law of the Sea,
has a uniform breadth of 12 miles measured from the low water mark of the coasts. As to internal
waters, the outermost points of our archipelago are connected with straight lines and all waters
comprised therein are regarded as internal waters.
 Distinguish internal waters, territorial waters and archipelagic waters.

o Internal waters 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.
o Territorial waters are the waters adjacent to the coasts of a state including the internal

waters in bays and gulfs, which do not form part of the open sea.
o Archipelagic waters are those internal waters, not previously considered as such, which
are enclosed within the straight baseline established in accordance with the UNCLOS as
to make up an archipelagic state.
 What is an archipelago?
o An archipelago is a groups of islands, including parts of islands, interconnecting waters
and other natural features which are co closely interrelated that such they form an
intrinsic geographical, economical and political entity, or which historically have been
regarded as such.
✒ What is the boundary between the air space and the outer space?
o There is no definite boundary yet. Some of the different opinions are:
1. That it should be near the lowest altitude at which artificial earth satellites can
remain in orbit without being destroyed by friction with the air;
A N A L I A
2. Theoretical limit of air flights which is 90 km above the earth;

3. The limit is the height of atmospheric space.
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✒ When may a state exercise jurisdiction outside its territorial boundaries?

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o A state may exercise jurisdiction on the open seas in the following instances:
1. OVER ITS VESSELS – The flag state has jurisdiction of its public vessels at all times, whether
they be in its own territory or in the territory of other states, or open seas. Merchant vessels,
on the other hand, are under its jurisdiction only when they are within its territory, when the
jurisdiction is waived or cannot be exercised by the territorial sovereign, or when such vessel are
on the open seas.
2. OVER PIRATES – Pirates are enemies of all mankind and may be captured on the open seas by
the vessels of any state, to whose territory they may be brought for trial and punishment.
3. IN THE EXERCISE OF THE RIGH IF VISIT AND SEARCH – Under the laws of neutrality, the
public vessels or aircraft of a belligerent state may visit and search any neutral merchant vessel
on the open seas and capture it if is is found or suspected to be engaged or to have engaged in
activities favorable to other belligerent.
4. UNDER THE DOCTRINE OF HOT PURSUIT - The pursuit of a foreign merchant vessel
undertaken by the coastal State which has good reason to believe that the ship violated the laws
and regulations of that State.
Consent to the jurisdiction of a foreign court does not involved waiver of the separate immunity
from execution. Consent to be sued does not give consent to the attachment of the property of
sovereign government. (Dexter vs. Carpenters)
THE RIGHT OF LEGATION AND CONSULS
✒ What are some of the diplomatic immunities and privileges?

o The following are some of the diplomatic immunities and privileges:
1. PERSONAL INVIOLABILITY – The diplomatic agent shall be inviolable and he shall not be
liable to any form of arrest or detention. The receiving state shall treat him with due respect
and shall take appropriate steps to prevent any attack of his person. (Art 29, Vienna
Convention on Diplomatic Relations) Exception: The envoy cannot complain if he is injured
because he himself caused the initial aggression and thereby provoked retaliation or unduly
exposed himself to danger. He may also be placed in preventive restraint, in exceptional
cases, when he has committed an act of violence.
2. IMMUNITY FROM JURISDICTION – (Article 31, supra) A diplomatic agent shall

enjoy immunity from the criminal jurisdiction of the receiving state. He shall also

enjoy immunity from civil and administrative jurisdiction, except in the case of:

1. A real action relating to private immovable property situated in the
territory of the receiving state, unless he holds it on behalf of the sending
state for the purposes of the mission;
2. An action relating to succession in which the diplomatic agent is involved
as executor, administrator, heir or legatee as a private person and not on
behalf of the sending state;
3. An action relating to any professional or commercial activity exercised by
the diplomatic agent in the receiving state outside his official functions.
3. INVIOLABILITY OF DIPLOMATIC PREMISES – (Article 22, supra) The

diplomatic premises shall be inviolable, and the agents of the receiving state may
not enter enter them without the consent of the head of mission. Such premises,
their furnishings and other property thereon and the means of transport of the
mission shall be immune from search, requisition, attachment or execution.
A N A L I A
4. INVIOLABILITY OF ARCHIVES – (Article 24, supra) The archives and

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documents of the mission shall be inviolable at any time and whenever they may
be.
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5. INVIOLABILITY OF COMMUNICATION – (Article 27, supra) The receiving state shall
permit and protect free communication on the part of the mission for all official purposes. In
communication with the government and other missions, and consulates of the sending state
wherever situated, the mission may employ all appropriate means, including diplomatic
couriers and messages in code and cipher. The official correspondence of the mission shall be
inviolable.
6. EXEMPTION FROM TAXATION – (Article 43, supra) A diplomatic agent shall be exempt
from all dues and taxes, personal or real, national, regional or municipal, except in certain
specified cases, like the imposition of indirect taxes.
7. EXEMPTION FROM TESTIMONIAL DUTIES – (Article 31, supra) A diplomatic agent is not
obliged to give evidence as a witness.
8. (Article 26, supra) Subject to its laws and regulations concerning national security, the
receiving state shall insure to all members of the mission freedom of movement and travel in
its territory.
✒ What are the exceptions to the civil and administrative jurisdiction of diplomatic agents?
 A diplomatic agent enjoys immunity from civil and administrative jurisdiction, except in the case of:
1. A real action relating to private immovable property situated in the territory of the receiving
state, unless he holds it on behalf of the sending state for the purposes of the mission;
2. An action relating to succession in which the diplomatic agent is involved as executor,
administrator, heir or legatee as a private person and not on behalf of the sending state;
3. An action relating to any professional or commercial activity exercised by the diplomatic
agent in the receiving state outside his official functions.
✒ What is franchise de l’hotel?

o It means grant of legal immunity to diplomatic premises. The diplomatic premises shall be
inviolable, and the agents of the receiving state may not enter them without the consent of the
head of mission. Such premises, their furnishings and other property thereon and the means of
transport of the mission shall be immune from search, requisition, attachment or execution.
 Where do consuls derive their authority?

o Consuls derive their authority from two principal sources:
1. Letter Patent (Lettré de provision), which is the commission issued by the

sending state, and
2. Exequator, which is the authority given to them by the receiving state to
exercise their duties thereon.
o States may refuse to receive consuls and withhold the exequator from them without
explanation.
Consent given to the establishment of diplomatic relations implies, unless otherwise

expressly stated, consent to the establishment of consular relations.
Severance of diplomatic relations shall not ipso facto involve severance of consular
relations.
✒ Discuss diplomatic asylum. Is it allowed?

o The so-called Right of Diplomatic Asylum, wherein a person seeks asylum within the
diplomatic premises for fear of life and limb, has not received universal recognition
A N A L I A
except when it is extended for humanitarian reasons. In other cases, asylum is granted
only on the strength of local usage, particularly in favor of political refugees, or of
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treaty stipulations.
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✒ What is letter de creance?
o It is the document which the envoy receives from his government accrediting him to the foreign
state to which he is being sent. It designates his rank and the general object of his mission and
asks that he be received favorably and that full credence be given to what he says on behalf of his
state.
✒ Are consuls exempted from arrest or prosecution?

o By reason of comity, consuls usually are not prosecuted for minor offenses and are liable to arrest
and punishment only for grave offenses.
✒ Are consuls exempted from arrest or prosecution?

o Under Paragraph 3, Article 41 of the Vienna Convention on Consular Relations, a consular officer
does not enjoy immunity from the criminal jurisdiction of the receiving state. However, by reason
of comity, consuls usually are not prosecuted for minor offenses and are liable to arrest and
punishment only for grave offenses.
TREATIES
✒ What is the Doctrine of Pacta Sunt Servanda?

o (“Agreement must be kept”) Under this doctrine, international treaties must be observed in good
faith. A party must comply with the provisions of a treaty and cannot ignore or modify it without
the consent of the other signatory.
✒ Explain Rebus sic stantibus? What conditions must be present to justify it?
o (“Things remaining as they are”) Under this doctrine, the non-performance of a treaty is justified
if the conditions in relation to which the parties contracted have changed so materially and so
unexpectedly as to create a situation in which the exaction of performance would be
unreasonable.
o This doctrine does not operate automatically to render the treaty inoperative. There is a necessity
for a formal act of rejection, usually made by the head of state, with a statement of the reasons
why compliance with the treaty is no longer required. (Santos vs. Northwest Orient Airlines)
✒ What are the limitations to the application of Ribus Sic Stantibus?

o The limitations are:
1. It applies only to treaties of indefinite duration;

2. The vital change must be unforeseen or unforeseeable and should not have been
caused by the party invoking the doctrine;
3. It must be invoked within reasonable time; and
4. It cannot operate retroactively upon the provisions of a treaty already executed
prior to the change in circumstances.
✒ What are travaux preparatoires?

o Travaux preparatories are preliminary materials used when the intrinsic aids are
unavailing in the construction of a treaty, thus resort is made to extrinsic aids to
ascertain the intention of the parties.
✒ Distinguish jus cogens from jus dispositivum.

o Jus cogens are peremptory norms deemed to have a superior status in international
law, admitting of no derogation. Jus dispositivum is a law or norm which may be
subject to modification or supplanted by agreement to the contrary.
A N A L I A
 Define, explain and give example of Jus Cogens.

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✒ Jus cogens is a peremptory norm of general international law accepted and recognized
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by the international community as a whole as a norm from which no derogation is

permitted and which can be modified only by a subsequent norm of general international
law having the same character. An example is the prohibition against the use of force.
 May a state veto the formation of an international custom?
✒ What is the doctrine of state responsibility?

o Under this doctrine, a state is responsible for any injury sustained by an alien within its
jurisdiction because of an international wrong imputable to it.
✒ What is a compromissary clause?

o A compromissary clause is part of a treaty which manifests the consent of the parties to be bound
by the courts because the latter is empowered to settle disputes arising from the interpretation or
the application of such treaty; A provision in a treaty stipulating the submission of a matter to
arbitration.
✒ Most favored nation clause?

o The most favored clause is a pledge by a contracting party to a treaty to grant to the other party
treatment not less favorable than that which has been granted to the “most favored” among other
countries.
✒ What are the essential requisites of a valid treaty?

o To be valid, a treaty must be:
1. Entered into by parties having the treaty-making capacity;
2. Through their authorized organs or representatives;
3. Without the attendance of duress, fraud, mistake or other vice of consent;
4. On a lawful subject;
5. In accordance with their respective constitutional processes.
NATIONALITY AND STATELESSNESS
✒ What are the consequences of a stateless person? What are his rights, if any?
o The consequences of statelessness are:
1. No state can intervene or complain in behalf of the stateless person for an
international delinquency committed by another state in inflicting injury upon him;
2. HE cannot be expelled by the state if he is lawfully in its territory except on ground

of national security or public order;

3. He cannot avail himself of the protection and benefits of citizenship like securing
for himself a passport or visa and personal documents.
o The stateless individual, however, is not without right. He has the following rights,
among others:
1. Right to religion and religious instruction
2. Access to courts
3. elementary education,
4. public relief and assistance
5. Rationing of products in short supply
6. Labor legislation
7. Social security
8. Treatment no less favorable than that accorded to aliens in general.
✒ Victor Korchoi, a stateless resident of Switzerland, was the challenger yo thr

A N A L I A
world chess held by Russian Anatoly Karpov. After 32 grueling games were played
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in Baguio City, Karpov finally retained his title of a close 6-5 win. Korchoi protested
no-payment of his prize money and alleged unfair treatment he received from the
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tournament organizers in the Philippines particularly in the 32nd crucial game,

which he attributes as the main case of his defeat. May he press for his right to the
prize money as against the Philippine government through the Swiss government?
(1978 Bar)
• No, Switzerland, even if she so desires, cannot espouse a diplomatic claim against the Philippines
in behalf of Victor Korchoi. Nationality is the basis of the righ of state to espouse such claim. In
this case, Korchoi is not a Swiss national but a stateless person.
✒ What is the principle of effective or active nationality?

o Within a third state, a person having more than one nationality shall be treated as if he had only
one. Under the principle of effective nationality, the third state shall recognize conclusively in its
territory either the nationality of the country in which he is habitually and principally present or
the nationality of the country with he appears to be in fact most closely connected.
✒ May a stateless individual directly assert its rights and claims under the intl community? Is
a stateless individual an object of IL?
TREATMENT OF ALIENS
 What is the international standard of justice?

✒ It is the standard of the reasonable state and calls for the compliance with the ordinary norms of
official conduct observed in civilized jurisdictions. It may refer to the intrinsic validity of the laws
passed by the state or to the manner in which such laws are administered and enforced.
✒ When may the treatment of an alien considered below ISJ?

o The test is to inquire whether the treatement of the alien amounts to an outage, to bad faith,
to willful neglect of duty, or to an insufficiency of government action recognizable by every
unbiased man. (Chattin Case)
✒ What is the Attentant Clause?

o It is a provision in the extradition treaty that stipulates that an attempt against or
taking of the life of a head of state or a member if his/her family does not constitute a
political offense and is extraditable.
✒ What is the Calvo Clause?

o It is a stipulation by virtue of which an alien waives or restricts his right to appeal to his
own state in connection with any claim arising from a contract with a foreign state and

limits himself to the remedies available under the laws of that state.

✒ What is genocide?
o It is any of the following acts, committed with intent to destroy, in whole or in part, a
antional, ethnic, racial or religious group as such:
1. Killing members of the group,
2. Causing serious bodily or mental harm to members of the group,
3. Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part,
4. Imposing measures intended to prevent births within the group, and
5. Forcibly transferring children of the group to another group.
✒ May a state be held responsible for the acts of unsuccessful revolutionists that
caused injury to life and property of aliens?
(1995 BAR) In a raid conducted by rebels in a Cambodian town, an
American businessman who has been a long-time resident of the place was
A N A L I A
caught by the rebels and robbed of his cash and other valuable personal
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belongings. Within minutes, two truckloads of government troops arrived

prompting the rebels to withdraw. Before fleeing they shot the American
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causing him physical injuries. Government troopers immediately

launched pursuit operations and killed several rebels. No cash or other
valuable property taken from the American businessman was recovered.
In an action for indemnity filed by the US Government in behalf of
the businessman for injuries and losses in cash and property, the
Cambodian government contended that under International Law it was not
responsible for the acts of the rebels.
1. Is the contention of the Cambodian government correct? Explain.
✒ Yes,
the contention of the Cambodian Government is correct. Unless
it clearly appears that the government has failed to use promptly and
with appropriate force its constituted authority it cannot be
held responsible for the acts of rebels, for the rebels are not its agents and
their acts were done without its volition. In this case, government
troopers immediately pursued the rebels and killed several of them.
2. Suppose the rebellion is successful and a new government gains
control of the entire State, replacing the lawful government that was
toppled, may the new government be held responsible for the injuries
or losses suffered by the American businessman? Explain.
✒ The new government may be held responsible if it succeeds in
overthrowing the government. Victorious rebel movements are responsible
for the illegal acts of their forces during the course of the rebellion. The
acts of the rebels are imputable to them when they assumed as duly
constituted authorities of the state.
✒ Is there a need for the exhaustion of all available local remedies before determination of
state responsibility to an injured alien?
o Yes. The alien is presumed and required to take into account the local remedies for determination
and redress of wrongs and ascertainment of state responsibility, if any.
✒ What is the importance of exhaustion of local remedies?

o The state must be given an opportunity to do justice in its regular way without unwarranted
interference with its sovereignty by other states.

SETTLEMENT OF INTERNATIONAL DISPUTES

✒ What is Optional Jurisdiction Clause?
o It is found in Article 36 of the ICJ Statute which provides that state parties to the
present ICJ Statute may at any time declare that they recognize as compulsory ipso
facto and without special agreement, in relation to any other state accepting the same
obligation, the jurisdiction of the Court in all legal disputes concerning:
1. The interpretation of a treaty;
2. Any question of international law;
3. The existence of any fact which, if established, would constitute a breach of an
international obligation;
4. The nature or extent of the reparation to be made for the breach of an
international obligation.
✒ What are the amicable methods of settling disputes?

o They are:
A N A L I A
1. Negotiation,
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2. Inquiry,
3. Good offices,
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4. Mediation,
5. Conciliation,
6. Arbitration,
7. Judicial Settlement, and
8. Resort to regional and international organization
✒ What is the Uniting for Peace Resolution?

o It is a resolution adopted by the General Assembly which provides inter alia that if the Security
Council, because of lack of unanimity of the permanent members, fails to exercise its primary
responsibility for the maintenance of international peace and security in any case where there
appears to be a threat to the peace, breach of the pace, or act of aggression, the General
Assembly shall consider the matter immediately with a view of making the appropriate
recommendations to the permanent members for collective measures, including in the case of
breach of the peace or act of aggression, the use of armed force when necessary, to maintain or
restore international peace and security.
✒ When is reprisal lawful?

o Reprisal is lawful when the following criteria are met:
1. That the state against which reprisals are taken must have been guilty of a breach of
international law;
2. That prior to recourse to reprisals an adequate attempt must have made, without success, to
obtain redress from the delinquent state for the consequences of its illegal conduct; and
3. That acts of reprisals must not be excessive
WAR
✒ Who are combatants?

o Combatants are those who engage directly or indirectly in the hostilities. The following are
considered combatants:
1. The regular members of the armed forces except those not actively engaged in combat duty
2. The irregular forces provided that (a) they are commanded by a person responsible for his
subordinates; (b) they were fixed, distinctive sign recognizable at a distance; (c) they carry
arms openly and (d) they conduct their operations in accordance with the laws and customs
of war
3. The levies en masse, or the inhabitants of unoccupied territory who, on approach
of the enemy, spontaneously take up arms to resist the invading troops without
having had the time to organize themselves, provided only that they carry arms
openly and observe the laws and customs of war

4. The officers and crew of merchant vessels who forcibly resist attack
✒ What is the principle of military necessity and humanity?

o Under this principle, the belligerents may, subject to the principles of humanity and
chivalry, 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.
✒ Distinguish war crimes from war against humanity.

NEUTRALITY
✒ What is a blockade?
o A blockade is a hostile operation by which the vessels and aircraft of one belligerent
prevent all other vessels, including those of neutral states, from entering or leaving the
ports or coasts of the other belligerent, the purpose being to shut off the place from
international commerce and communication with other states.
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✒ Is there a difference between a blockade and a pacific blockade?

o Yes, as pacific blockade is a naval operation carried out in time of peace whereby a
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state prevents access to or exit from particular ports or portions of the coasts of

another state for the purpose of compelling the latter to yield to demands made by the
blockading state.
✒ What are the requisites of a valid blockade?

o The requisites of a valid blockade are:
1. It must be established by the proper authorities of the blockading state,
2. It must be effective,
3. It must be duly communicated,
4. It must be limited to the ports and coasts belonging to or occupied by, the enemy, and
5. It must be impartially applied to the ships of all nations.
✒ When is a territory deemed recognized by a belligerent community? Is it necessary that

every square foot of the territory be actively recognized?
o Territory is deemed occupied when it is actually placed under the authority of the hostile army.
The occupation is limited to the area where such authority has been established and can be
effectively exercised.
o It is not necessary that every square foot of the territory be actually occupied. It is sufficient that
the occupying army can, within a reasonable time, send detachments of troops to make its
authority felt within the occupied district.
✒ Is espionage prohibited under IL?

o No. Espionage is not prohibited under international law notwithstanding that it involves some
deception. (Why? Ambot.)
(2003 BAR) Not too long ago, “allied forces”, led by American and British armed forces,
invaded Iraq to “liberate Iraqis and destroy suspected weapons of mass destruction.” The
Security Council of the UN failed to reach a consensus on whether to support or oppose the
“war of liberation.” Can the action taken by the allied forces find justification in International
Law. Explain.
✒ The UN and its allied forces cannot justify their invasion of Iraq on the basis of self-
defense under Article 51, attack by Iraq, and there was no necessity for anticipatory
self-defense which may be justified under customary international law. Neither can
they justify their invasion on the ground that Article 42 of the UN Charter permits the

use of force against a State if it is sanctioned by the Security Council. Resolution 1441,

which gave Iraq a final opportunity to disarm or face serious consequences, did not
authorize the use of armed force.
(1984 BAR) At the UN, the Arab League, through Syria, sponsors a move to include
in the agenda of the General Assembly the discussion of this matter: “The Muslim
population of Mindanao, Philippines has expressed the desire to secede from the
Republic of the Philippines in order to constitute a separate and independent state
and has drawn attention to the probability that the continuation of the armed
conflict in Mindanao constitutes a threat to peace.” You are asked by the Philippine
Government to draft a position paper opposing the move. Briefly outline your
arguments supporting the Philippine position, specially discussing the tenability of
Arab League’s action from the standpoint of international law.
✒ The Muslim secessionist movement is not an international dispute, which under Article
35(1) of the UN Charter, a member of the UN may bring to the attention of the
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Security Council or the General Assembly. Such dispute can arise only between two or
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more States. The attempt of the Arab League to place on the agenda of the General
Assembly the Muslim problem in Mindanao can only be viewed as an interference with
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a purely domestic affair.

(1966 BAR) A treaty in force between the Philippines and State A provides that the
“nationals of each State shall be free to some to the territory of the other.” The Secretary of
Foreign Affairs of the Philippines had refused to allow Z, national of State A to land in the
Philippines. He says that it is his duty under the law of the Philippines to keep out persons
whom he considers to be “undesirable aliens,” and that the law has not yet been amended to
give effect to the treaty. A court of the Philippines has upheld this view. Advise Z. Give
reasons for your advice.
✒ On the assumption that the question has already been finally decided by a “court of the
Philippines,” i.e., a national court, I will advise Z that being ordinarily only an object of
international law, he cannot as an individual file any claim against the Philippines. However, he
can turn to his own state, i,e., State A, and should the latter so decide, though it is not obliged to
do so, it may espouse a claim against the Philippines for the injury to herself suffered through a
national. Such claim may be pursued by means of diplomatic negotiations, and should these fail,
by other pacific means of settlement (e.g. conciliation, mediation). If the question were to be
raised in an international forum like the Permanent Court of Arbitration or the International Court
of Justice, the treaty will be upheld over the municipal law of the Philippines. Of course,
international law also recognizes recourse to hostile or non-amicable methods of settlement of
international disputes like rupture of diplomatic relations, retortions, reprisals, embargo, boycott,
non-intercourse, pacific blockade, etc.
(1958 BAR) X is a country where Parliament elects the President (Chief of State). Certain
sections of the country stage a revolt. Parliament holds an emergency session and approves
a resolution of NO CONFIDENCE IN THE PRESIDENT. Members in Parliament voting for the
resolution are evidently pre-rebel. The rebel sections organize a government more or less
complete in all its branches, that seek foreign aid. Questions:
1. May the foreign aid be justified if given?
✒ In general the foreign aid cannot be justified because this will considered an attempt to
prevent the people of a state from settling their own affairs and their own
independence. Indeed the foreign aid would be incompatible with the right of
sovereignty, independence, and justification of State X. According to Hall, the right of
freedom from external interference is so fundamental a part of international law, and
respect for said right is so essential that any action to place it in subordinate position
must be looked upon with disfavor. While it is true that prior to the UN Charter some
states justified meddling “at the request of a party to a civil war or revolution,” it would
seem that today the foreign aid sought, if given in terms of force or the threat of force,

is prohibited under Article 2, paragraphs 4 and 7 because the case deals with “matters

essentially within the domestic jurisdiction of any state.” However if the foreign aid
sought is merely in the form of “mediation” by a foreign country, or even in the form of
arms and food (so long as there is a threat to international peace and security) said aid
could be justified under Chapter VII of the UN Charter, provided that it be carried out
under the supervision of the Security Council.
2. Is this foreign intervention?

✒ The giving of aid would be foreign intervention (indeed, an armed one, in case threat or
the use of force accompanies it.)
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GENERAL PRINCIPLES

 Distinguish General International Law from Particular International Law.

✒ What is Universal International Law?

 Differentiate IL from ML.

 What is considered weaker, IL or ML?

 What is the Doctrine of Transformation?

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Just a study guide.  1

 In case of conflict between a treaty and a statute, which will prevail?

 What is the basis of IL?

 What are the sanctions of IL?

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SOURCES OF INTERNATIONAL LAW

 Differentiate International Custom from Usage. What are the defects of

 Differentiate bilateral treaties from multilateral treaties. Is there a substantial

difference between them?

Just a study guide.  2

THE INTERNATIONAL COMMUNITY

 What can an injured individual do to secure redress of a wrong conducted by a foreign

 From the traditional point of view, is the individual a subject of IL?

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 Why is the United Nations considered as an international person?

4. It may conclude treaties.

 Peace negotiations do not imply recognition by the country where it is held. In

holding peace talks in a foreign country, such country is a “neutral state.”

Just a study guide.  3

 Explain the Domestic Jurisdiction Clause.

 What are the principal functions of the ICJ?

 When may advisory opinions be given by the ICJ?

 What is Yalta Formula?

 What is a Double Veto?

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 What is a military staff committee.

and possible disarmament. It is made up of military representatives of the 5 permanent

Just a study guide.  4

 How are judges of the ICJ chosen?

THE CONCEPT OF THE STATE

 What is the Principle of State Continuity?

 What are the consequences of State Succession?