LESSON 7

LEGAL BASIS OF INTERNATIONAL RELATION

National Law
- Regulates relations of individuals among themselves or within the state. It consists
of statutory enactments, executive order, and judicial pronouncement.

International Law
- Regulates relations of states and international persons. It derived from treaties,
international customs, and general principles of law.

Doctrine of Incorporation
- Mainly based under Article 2, Section 2 of 1987 Constitution stating:
The Philippines adopts the generally accepted principles of international law as part of the law
of the land

Doctrine of Transformation
- Mainly based under Section 8, Article 21 of 1987 Constitution
- are international agreements concluded between states, in written form, and
governed by international law, embodied either in a single
instrument or two or more related instruments and whatever its particular
designation.

Treaties that the Philippines entered into:

Bilateral Treaties
Mutual Defense Treaty (with USA, signed Aug 30 1959)
Visiting Forces Agreements (with USA, signed Feb 10 1998)
Multilateral Treaties
1982 United Nation Convention on the Law of the Sea (UNCLOS) International Convention on Civil
and Political Rights

International Customs
- Also known as customary law, it consists of rules of law derived from consistent
conduct of states, acting out of the belief that the law required them to act that
way.
State Practice
- It states that there must be evidence of substantial uniformity of practice by a
substantial number of state

Opinio juris sive necessitates (Opinion of law or necessity) - the belief that the given practice is
rendered obligatory by the existence of a rule requiring it.

Jus Cogens (Compelling Law)

- Another category of international customs as these refer to norms that command
peremptory authority, superseding conflicting treaties, and customs which can
neither be derogated nor modified, except by norm or similar character.

Obligations Erga Omnes (Towards All)

- 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 its concern for
compliance, so that a breach of that obligation enables all States to take action;
or an obligation under a multilateral treaty.

Treaties
- Is an international agreement conducted between states, in written form and
governed by international law, whether embodied in a single instrument or in two
or more related instruments.

Three Basic Principles Concerning Treaties

1. Pacta tertiis nec nocent nec prosunt
-
2. Pacta sunt servanda
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3. Rebuc sic stantibus
-

Executive Agreement
- An agreement concluded by the President based on authority granted by the
Congress or based on the Inherent authority granted to him/her by the
Constitution. This is distinguished from a treaty as the latter pertains to a
covenant concluded by the President with the advice and consent of the Senate.
No treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the members of the Senate.

Concordant
- A treaty or agreement between the Pope and a state or government that deals
with religious matters as well as the recognition and privileges of the Holy See
in other states.

LESSON 8
STATE, NATIONALITY, AND STATELESSNESS

States - are entities that have rights and responsibilities under international law and which have the capacity to
maintain their rights by bringing international claims.

Nationality - a legal bond having as its basis a social fact of attachment, a genuine connection of existence,
interests, and sentiments, together with the existence of reciprocal rights and duties (Nottebohm Case
Liechtenstein v. Guatemala, 1955 ICJ 4)

Refugee - 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/ her
nationality, and is unable or, owing to such fear, is unwilling to avail himself/herself of the protection of that
country.

States are created through the following:

1. Discovery and occupation - Discovery and occupation occurs when a territory belonging to any state is
placed under the sovereignty of the claiming state.

2. Prescription - Prescription is when a territory is acquired through continuous and uninterrupted

possession over a long period of time.

3. Cession - involves the peaceful transfer of territory from one sovereign to another, with the intention that
sovereignty should pass.

4. Accretion - the increase in the land area of the state, either through natural means, or artificially
through human labor.

5. Conquest - the act of defeating an opponent and occupying all or parts of territory does not of itself
constitute a basis of title to the land. It gives the victor certain rights under international law as regards the
territory, the rights of belligerent occupation, but the territory remains subject to the legal title of the ousted
sovereign.

State Recognition

is an act by which a state acknowledges the existence of another state, government, or belligerent
community and indicates its willingness to deal with the entity as such under the rules of international law
(Nachura, 2016).

State recognition is a political act and mainly a matter of policy on the part of each state. It is discretionary
on the part of the recognizing authority. It is exercised by the political department of the state.

The principle of state continuity is being followed wherein once the identity of a 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 and government.

Landmark Doctrines in State Recognition

Wilson/Tobar Doctrine - This doctrine precludes the recognition of governments established by revolution,
civil war, coup d'etat, or other forms of internal violence until the freely elected representatives of the people
have organized a constitutional government (Sarmiento, 2009).

Betancourt Doctrine - This doctrine pertains to denial of diplomatic recognition to any regime, right or left,
which came to power by military force (Sarmiento, 2009).

Lauterpacht Doctrine - This doctrine precludes the recognition of an entity which is not legally a State as it
constitutes an abuse of the power of recognition. It acknowledges the community which is not, in law, i
independent recognition. It acknowledges a community which is and which does not therefore fulfill the
essential conditions of statehood as an independent state (Sarmiento, 2009).

Stimson Doctrine - This doctrine precludes the recognition of any government established as a result of
external aggression (Nachura, 2016).

Rights of States

The right to independence means freedom from control by other state or group of states and not freedom
from the restrictions that are binding on all states forming the family of nations and carries with it by necessary
implication the correlative duty of non-intervention (Nachura, 2016). Intervention is an act by which a state
interferes with domestic or foreign affairs of another state through the employment of force or threat of force
which may be physical, political, or economic (Nachura, 2016).

The right to equality is underpinned in the doctrine of equality of states which provides that all states are
equal in international law despite of their obvious factual inequalities as to size, population, wealth,
strength, and degree of civilization.

The right to existence and self-defense provides that a state may take measures including the use of force
as may be necessary to counteract any danger to its existence (Article 51, UN Charter). Aggression pertains
to the use of armed force by a state against the sovereignty, territorial integrity, or political independence of
another state, or in any other manner

The right to territorial integrity and jurisdiction encompasses the right of the state to its
terrestrial, maritime and fluvial, aerial and space covered by its territory.
The right to legation pertains to the right of the state to send and receive diplomatic missions, which
enable states to carry on friendly intercourse.

NATIONALITY
is a legal bond having as its bases a social fact of attachment, a genuine connection of existence, interests,
and sentiments, together with the existence of reciprocal rights and duties pertains to the status of having no
nationality as a consequence of being born without any nationality or as a result of deprivation or loss of
nationality (Nachura, 2016).

REFUGEES is 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, owing to such fear, is unwillingly to avail himself of the protection of that country.

THE PRINCIPLE of NON-REFOULMENT is a principle wherein addition to not returning the refugee to his or
her own state he or she must not be sent to a third state if his or her life or freedom would there be threatened
on account of his or her race, religion, nationality, membership of a particular social group, or social opinion
(Par. 1 Article 33 Convention Relating to the Status of Refugees).

LESSON 9
THE LAW OF THE SEA

Archipelago - group of islands, including 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 or which historically have been regarded as such.

Archipelagic State - a state constituted wholly by one or more archipelagos and may include
other islands.

Coastal archipelago - refers to a group of islands situated so close to a main land that they
may be considered a part thereof, forming more or less an outer coastline from which it is
natural to measure the marginal seas.

Outlying or mid-ocean archipelago - refers to a group of islands situated in the ocean at

such distance from the coasts of firm land as to be considered as an independent whole rather
than forming part of, our outer coastline of the mainland.

High Seas - The high seas are all parts of the sea that are not within an EEZ, the territorial
sea, internal waters or archipelagic waters (Article 86, UNCLOS III).

THE LAW OF THE SEA - is a body of international rules that binds states and other subjects of
international law in their maritime affairs. Its functions are the spatial distribution of national
jurisdiction and to ensure cooperation between states (Tanaka, 2012).

United Nations Convention on The Law of The Sea (UNCLOS)

UNCLOS is the 1982 United Nations Convention on the Law of the Sea. Also referred to as

It is an international convention resulting from the third United Nations Conference on the Law
of the Sea (UNCLOS III), which took place from 1973 to 1982.

GOVERNING PRINCIPLES OF LAW OF THE SEA

 1. Principle of Freedom
o aims to ensure the freedom of the various uses of the oceans.
o It ensures that ships of all states have the right to sail freely without interference.

2. Principle of Sovereignty
o seeks to safeguard the interests of coastal states.
o coastal states have sovereignty over their territorial waters, airspace, and land territory.

3. Principle of the Common Heritage of Mankind

o seeks to promote the common interest of all people in present and future generations.
o are certain areas beyond national jurisdiction (e.g., the deep seabed)

Baselines - The Baseline is a line drawn from the lines of the outer islands at the time of the receding
sea. In short, this line is drawn when the seawater is at its lowest.

Coastlines - Similar but not the same, the coastline is also a line bordering the mainland. However,
the coastline is not necessarily measured at the highest tide. Instead, it represents the natural shape
of the land where it meets the sea, regardless of tide levels.

DIFFERENT TYPES OF BASELINES:

1. Normal Baseline
- Used when the baseline is relatively simple and not deeply indented.
- The normal baseline for measuring the breadth of the territorial sea is the low water
line along the coast as marked on large-scale charts officially recognized by the coastal
state (Article 5, UNCLOS III).

2. Straight Baseline
- Used when the coast is deeply indented, has fringing islands, or is highly unstable.
- For drawing straight baselines, it must not depart to any appreciable extent from the
general direction of the coast.

3. Closing lines across River Mouths and Bays

- Connects the outermost points of the natural entrance of a river mouth or bay.

4. Archipelagic Baseline
- Used for archipelagic states (e.g., the Philippines).
- Encloses the entire archipelago, including its islands and waters
- Archipelagic Waters - also called Internal Waters, are the waters enclosed by the
archipelagic baseline.

TWO KINDS OF ARCHIPELAGO:

1. Coastal Archipelago
Closely grouped islands near the mainland.
Often found along continental shelves.
Examples: Philippines, Indonesia.

2. Outlying or Mid-Ocean Archipelago

 Islands not closely connected to the mainland.
May be isolated or scattered.
Examples: Hawaii, Seychelles.

TERRITORIAL WATERS
extend up to a
maximum of 12 nautical miles (22 km) from the baseline. Within this zone, the state has
sovereignty and exclusive jurisdiction.
Innocent Passage is considered innocent as long as a ship refrains from engaging in certain
prohibited activities (e.g., weapons testing, spying, smuggling, serious pollution, fishing, or
scientific research).

CONTIGUOUS ZONE
Beyond the territorial waters, the contiguous zone extends up to 24 nautical miles from the
baseline.
Allows the coastal state to regulate customs, immigration, and pollution prevention.

EXCLUSIVE ECONOMIC ZONE (EEZ)

Beyond territorial waters, every coastal country may establish an exclusive economic zone
(EEZ) and it can only extend up to 200 nautical miles (370 km) starting from the
baseline.
Within the EEZ, the coastal state has the right to exploit and regulate fisheries, construct
artificial islands, and use the zone for other economic purposes like energy generation from
waves.

CONTINENTAL SHELF
The continental shelf extends beyond the territorial sea.
Allows the coastal states to exploit natural resources on the seabed and subsoil.

HIGH SEAS
Beyond the EEZ and continental shelf are the high seas
The high seas are open to all nations and are not subject to any national jurisdiction.
All states have the right to navigate, fish, and conduct scientific research in the high seas.
UNCLOS provides a legal framework for the conservation and management of high-seas
resources.

FREEDOM OF THE HIGH SEAS

The freedoms of the high seas include navigation, overflight (civilian and military aircraft), lay
submarine cables and pipelines, conduct scientific research, construction of artificial islands, and
other installations allowed by international law and fishing (UNCLOS III).

LESSON 10
International Human Rights Law

Universal Declaration of Human Rights (UDHR)

It is not a legally binding treaty but a mere declaration or statement of generally accepted
principles of human rights