PUBLIC INTERNATIONAL LAW

PUBLIC INTERNATIONAL LAW

• This deals with the conduct of States and international

organizations, their relations with each other and, in certain
circumstances, their relations with persons, natural or juridical

A. Concepts

• 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 that a
State party to the treaty owes in any given case to
all the other State parties to the same treaty, in view
of their common values and concern for compliance,
OBLIGATIONS so that a breach of that obligation enables all these
ERGA OMNES States to take action
(“towards all”) • Only some rules creating erga omnes obligations
are rules of jus cogens
• Examples:
1. Prohibition of acts of aggression;
2. Prohibition of genocide;
3. Obligations on the protection of basic human
rights;
4. Obligations relating to self-determination; and
5. Obligations relating to the environment of
common space

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• A nor m accepted and recognized by the

international community of States as a whole from
which no derogation is permitted and which can
be modified only by a subsequent norm of general
international law having the same character
• It enjoys a higher rank in the international hierarchy
than treaty law and even ordinary customary rules
(jus dispositivum)
• All jus cogens rules create erga omnes
JUS COGENS
obligations
(Pre-emptory
• Examples:
norms)
1. The prohibitions against the use of force by
one state against another;
2. Torture;
3. Racial discrimination;
4. Genocide;
5. War crimes;
6. Crimes against humanity;
7. Slavery; and
8. Piracy.

• A decision made ex aequo et bono means that the

EX AEQUO ET court decided the case not on legal considerations
BONO but solely on what is fair and reasonable
(From equity • The International Court of Justice (ICJ) may decide a
and conscience) case ex aequo et bono where the parties agree
thereto.

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B. Relationship between International and National Law

Fitzmaurice Compromise: Since the two systems, international and

national law, do not operate in common field, they can never come into
conflict. Each one of them is supreme in its own domain, thereby any
apparent conflict in the domestic field is automatically settled by the
domestic conflict rules of the forum and any conflict in the international
field would be resolved by International Law. It is supremacy not arising
from the content but from the field of operation

International Law National Law

Nature

Law of coordination Law of subordination (issued

(consent) by political superior)

Applicability

It regulates relations of
It regulates relations of
individuals among
states and other
themselves or with their own
international persons
states

Composition

It is derived principally from

It consists mainly of statutory
treaties, international
enactments executive orders
customs and general
and judicial pronouncements
principles of law

Remedy

Redressed through local

Resolved through state-to-
administrative and judicial
state transactions
processes

Entity Held Responsible

Collective responsibility
because it attaches directly
Individual responsibility
to the state and not to its
nationals

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Theoretical Approaches to the Relationship between International Law

and National Law:


1. Monism – there is no substantial distinction between international

law and municipal law. It supposes that international law and
national law are simply two components of a single body called
“law”
2. Dualism – international law and national law are independent of
each other and both systems are regarded as mutually exclusive and
independent. They exist side by side within different spheres of
action – the international plane and the domestic plane

Theories as to Manner of Adopting International Law as Part of the Law

of the State:

3. Doctrine of Incorporation – a State is, by reason of its membership

in the family of nations, bound by the generally accepted principles
of international law, the same being considered as part of its own
laws
4. Doctrine of Transformation – requires the enactment by the
legislative body of such international law principles as are sought to
be part of municipal law

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C. Sources of Obligations in International Law

PRIMARY SOURCES
Art. 38, ICJ

• A treaty, of whatever kind, is a direct source of

obligation for the parties.
International • The binding force of a treaty comes from the
Conventions consent of the parties, not from the subject matter
or form of the treaty
•

• This consists of rules of law derived from the

consistent conduct of States acting out of the belief
that the law required them to act that way
• Elements:
1. State Practice
• there must be evidence of substantial
uniformity of practice by a substantial
number of States
•
2. Opinio juris sive necessitates (“opinion of law
or necessity”)
• the belief that this practice is rendered
International obligatory by the existence of a rule
Customs requiring it; the States concerned must
therefore feel that they are conforming to
what amounts to a legal obligation
• Persistent Objector Rule
• When a State persistently objects to a rule of
customary international law during the
formative stage of that rule, it will not be
bound by it.
• However, there are some customary rules that
are so fundamental that states are not free to
reject them. International law has accepted the
notion of peremptory norms, or jus cogens,
which bind all states

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• These are concepts common to major national legal

systems. Allowing international judges to rely on
concepts common to the major national legal
systems means that where there is a gap in
General
international law the judges have some ability to fill
Principles of
it rather than simply announcing that the case
Law
cannot be decided because no international law
currently exists on the topic
• Examples: Concept of Limitations; Doctrine of
Estoppel; Rule on Burden of Proof

SECONDARY SOURCES

• While the doctrine of precedent, whereby the

rulings of certain courts must be followed by other
courts, does not exist in international law, one still
finds that states in disputes and textbook writers
quote judgments as authoritative decisions
Judicial • The decisions of the International Court of Justice
Decisions and the decisions of other courts and arbitral
tribunals may be used as persuasive authority
• The International Court of Justice is not bound by
the doctrine of stare decisis. The decisions of the
Court have no binding effect except between the
parties and in respect of that particular case

• Where there is no treaty and no controlling executive

or legislative act or judicial decision, resort must be
had to the customs and usages of civilized nations,
Teachings of and, as evidence of these, to the works of jurists and
the Most commentators
Highly • Highly-qualified publicists are writers whose main
Qualified value depends on the extent to which their books
Publicist of the and articles are cited as works of scholarship, i.e.
Various Nations based on thorough research into what the law is said
to be (lex lata) rather than comparing the views of
other writers as to what they think the law ought to
be (lex ferenda)

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D. Subjects

• It is an entity that has rights and responsibilities under international law

and which has the capacity to maintain its rights by bringing international
claims

• Facts of Statehood (PDGC):

1. Permanent population - The population does
not have to be homogenous racially, ethnically,
STATES tribally, religiously, linguistically or otherwise.
But it must be a settled population, though
State is a the presence of certain inhabitants who are
community of traditionally nomadic does not matter
persons more or
less numerous, 2. Defined territory - The size of the territory
permanently does not matter. Nor do the land and maritime
occupying a boundaries have to be defined definitively
definite portion
o f t e r r i t o r y, 3. Government - There must be a central
independent of government operating as a political body
external control, within the law of the land and in effective
and possessing control of the territory. Once a state has been
an organized established, military occupation by another
government to state or civil war will not affect that statehood
which the great
body of 4. Capacity to enter into relations with other
inhabitants states - The government must be sovereign
render habitual and independent, so that within its territory it
obedience. is not subject to the authority of another state.
The corollary is that the state thus has full
capacity to enter into relations with other
states. But to become a sovereign state in
practice requires recognition by other states

• Individuals and international organizations are also

INTERNATIONAL subjects because they have rights and duties under
ORGANIZATION international law. (Liang vs. People, GRN 125865 [26
March 2001])

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• According to Hanks Kelson, “while as a general rule,

international law has as its subjects states and
obliges only immediately, it exceptionally applies
to individuals because it is to man that the norms
INDIVIDUALS
of international law apply, it is to man whom they
restrain, it is to man who, international law
t h r u s t s t h e re s p o n s i b i l i t i e s o f l a w a n d
order.” (1981 Bar)

E. Jurisdiction of States

BASIS OF JURISDICTION

• Subjective Territoriality – If an activity takes place

within the territory of the Forum State, then the
Forum State has the jurisdiction to prescribe a rule
for that activity. The vast majority of criminal
legislation in the world is of this type.
TERRITORIALIT • Objective Territoriality – The action takes place
Y PRINCIPLE outside the territory of the Forum State, but the
primary effect of that activity is within the Forum
State.
• Effects Doctrine – A state has jurisdiction over acts
occurring outside its territory but having effects
within it

• Active Nationality – The basis for jurisdiction where

NATIONALITY
the Forum State asserts the right to prescribe a law
PRINCIPLE
for an action based on the nationality of the actor.

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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.

Kinds of Stateless Persons: (LE)

1. Legally (De Jure) – a person without the citizenship
or nationality of any State; and
2. Effectively (De Facto) – a citizen of a state who is
not adequately protected by it or is unable to
establish his/her citizenship
STATELESSNESS
• Statelessness adversely affects a person’s right to
exercise rights and privileges usually enjoyed by
citizens of a State, e.g. employment, right to work,
right to own and acquire property, right to
education, freedom of mobility, right of access to
healthcare, and other privileges enjoyed by citizens
• Any wrong suffered by a stateless person through
the act or omission of a state would be damnum
absque injuria for in theory no state has been
offended and no international delict committed

• The sovereign punishes actions committed in other

PROTECTIVE places solely because it feels threatened by those
PRINCIPLE actions. This principle is invoked where the victim
would be government or sovereign itself.

• The jurisdiction over crimes committed by aliens

outside the territory on the sole basis of the
UNIVERSALITY presence of the alien within the territory of the state
PRINCIPLE assuming jurisdiction.
• It includes piracy, slavery, genocide, hijacking, war
crimes, and crimes against humanity.

PA theory of jurisdiction based on the nationality of the

victim; rarely used because:
PASSIVE
1. it is offensive for a nation to insist that foreign
PERSONALITY
laws are not sufficient to protect its citizens
PRINCIPLE
abroad and
2. victim is not being prosecuted.

EXEMPTIONS FROM JURISDICTION

A state should not inquire into the validity of the

public acts of another state done within the territory
ACT OF STATE
of the latter. For this purpose, considerations such as
DOCTRINE
motive are immaterial (Underhill v. Hernandez, 168 U.S.
250, November 29, 1897).

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F. General Principles of Treaty Law

• A treaty is an international agreement concluded

between states in written form and governed by
DEFINITION
international law, whether embodied in a single
instrument or in two or more related instruments
whatever its particular designation

1. Law-making/Normative (traités-lois) – furthers

community interests by setting up international
standards which are best achieved by universal
DISTINCTIONS
participation and are not based on the principle of
BETWEEN
reciprocity; and 

TREATIES
BASED ON
2. Contract/Reciprocal/Synallagmatic (traités- contrats)
CONTENT
– furthers the individual interests of the participating
States, aiming at their mutual benefit which is best
achieved through reciprocal obligations (do ut des)

1. Capacity to contract;
2. Consent;
ESSENTIAL 3. Conformity (object and subject matter must be in
REQUISITES OF conformity with the principles of international law);
A VALID 4. Authority (agents must have been duly authorized
TREATY and competent to act on behalf of the States
represented); and
5. Ratification

1. Diplomatic negotiations
2. Signing of the treaty by the representatives
3. Exchange of the ratification instruments or Deposit
with (a) the government of one of the contracting
STEPS IN
parties or with an organ or (b) an organ of an
MAKING A
international organization
TREATY
4. Ratification of the treaty by the constitutional organs
of the respective States.
5. Registration with and Publication by the Secretariat
of the United Nations

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G. Doctrine of State Responsibility

• States can also be held responsible for the commission of

international crimes. For example, Serbia was found liable for its
failure to prevent genocide during the Balkan War of the 1990s
• States are liable for breaches of their obligations, provided that the
breach is attributable to the state itself.
• A state is responsible for direct violations of international law—e.g.,
the breach of a treaty or the violation of another state’s territory. A
state also is liable for breaches committed by its internal institutions,
however they are defined by its domestic law; by entities and
persons exercising governmental authority; and by persons acting
under the direction or control of the state. These responsibilities
exist even if the organ or entity exceeded its authority.

H. Refugees

A person who, owing to a well-founded fear of being

persecuted for reasons of race, religion, nationality,
membership of a particular social group or political
REFUGEE, opinion, is outside the country of his nationality, and is
DEFINED unable or, owing to such fear, is unwilling to avail himself
of the protection of that country. It includes stateless
persons who are outside the country of his habitual
residence and is unable or, owing to such fear is
unwilling, to return to it

The status of refugee is a right under the Convention

relating to the Status of Refugees. Once the criteria have
been satisfied, states have an obligation to treat the
person as a refugee; there is no discretion. However,
STATUS OF
states have to use their domestic legislation and
REFUGEE
procedures in dealing with claims to refugee status. One
therefore has to consider each refugee application, not
only on its own particular facts but also in light of the law
of the state concerned.

In addition to not returning the refugee to his own

state, he must not be sent to a third state if his life or
PRINCIPLE OF
freedom would there be threatened on account of his
NON-
race, religion, nationality, membership of a particular
REFOULEMENT
social group or political opinion. This principle applies
when there is a prima facie claim to refugee status

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1. There are reasonable grounds for regarding the

EXCEPTION TO
refugee as a danger to the security of the state; or
THE PRINCIPLE
2. Having been convicted of a particularly serious
OF NON-
crime, constitutes a danger to the community of the
REFOULEMENT
state

I. Extradition

• The removal of an accused from the requested state

with the object of placing him at the disposal of
foreign authorities to enable the requesting state or
government to hold him in connection with any
criminal investigation directed against him or the
execution of a penalty imposed on him under the
penal or criminal law of the requesting state or
EXTRADITION, government
DEFINED • It is a sui generis proceeding tracing its existence
wholly to treaty obligations between different
nations. It is not a criminal proceeding; it is not a
trial to determine the guilt or innocence of the
potential extraditee. Nor is it a full-blown civil
action, but one that is merely administrative in
character (Government of Hong Kong Special
Administrative Region v. Olalai, Jr., G.R. No.
153675, April 19, 2007).

In deportation:
1. Expulsion of an unwanted or undesirable alien
DISTINGUISHED 2. Exercise of sovereignty and a decision made
FROM by the State
DEPORTATION 3. Purpose: Order of a State acting on its own
and according to its law, interest, and
processes.

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1. It is based upon bilateral treaty law and does not

exist as an obligation upon states in customary law;
2. Double criminality – the crime involved should be a
crime in both states concerned;
3. Principle of Specialty – a person surrendered may
be tried and punished only for the offence for which
extradition had been sought and 

granted
4. Differences in legal system can be an obstacle to
FUNDAMENTAL interpretation of what the crime is;
PRINCIPLES 5. Religious and political offenses are not extraditable;
as well as military offenses
6. Prohibition on discrimination – Extradition may not
be granted if it would be subject the fugitive to
prosecutions based on race, nationality, or political
opinion; and
7. Lack of probable cause clause – The request for
extradition must include sufficient prima facie
evidence of guilt attributable to the person
requested to be extradited

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J. Basic Principles of International Human Rights Law

• Human rights law transcends state boundaries by seeking to define and

uphold those rights held universally by every person regardless of
nationality. It deals with the way a State acts towards individuals and
groups, and in particular, its own citizens

• The UDHR was adopted by the United Nations

General Assembly on December 10, 1948 at Palais
de Chaillot, Paris. It is not a legally binding treaty
but a mere declaration or statement of generally
accepted principles of human rights There is,
however, a view that since 1948 the Declaration
has become binding as a new rule of Customary
International Law
• It is proclaimed “as a common standard of
achievement for all peoples and all nations, to the
UNIVERSAL
end that every individual and every organ of society,
DECLARATION
keeping this Declaration constantly in mind, shall
OF HUMAN
strive by teaching and education to promote
RIGHTS
respect for these rights and freedoms and by
progressive measures, national and international, to
secure their universal and effective recognition and
observance, both among the peoples of Member
States themselves and among the peoples of
territories under their jurisdiction”
• Everyone is entitled to all the rights and freedoms
set forth in the Declaration, without distinction of
any kind, such as race, color, sex, language, religion,
political or other opinion, national or social origin,
property, birth or other status

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• The ICCPR is a multi-lateral treaty adopted by the

United Nations General Assembly on December 16,
1966. It entered into force on March 23, 1976. As of
March 28, 2014, it has 74 signatories and 167
parties. The Philippines signed it on December
19, 1966 and ratified it on October 23, 1986

• FIRST GENERATION RIGHTS

1. Self-determination of Peoples
• To freely determine their political
status and freely pursue their economic,
social and cultural development (ICCPR,
Art. 1, Par. 1); and
• For their own ends, to freely
dispose of their natural wealth and
resources without prejudice to any
obligations arising out of international
INTERNATIONAL economic cooperation, based upon the
COVENANT ON
principle of mutual benefit, and
CIVIL AND
international law. In no case may a
POLITICAL
people be deprived of its own means 

RIGHTS
of subsistence
2. Non-Derogable Rights
1. Right to life;
2. Prohibition on genocide;
3. Freedom from torture and other cruel,
degrading or inhuman treatment of
punishment;
4. F r e e d o m f r o m e n s l a v e m e n t o r
servitude;
5. Protection from imprisonment for
debt;
6. Freedom from retroactive penal laws/
ex post facto laws;
7. Recognition as a person before the
law; and
8. Freedom of thought, conscience, and
religion.

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• The ICESCR is a multilateral treaty adopted by the

United Nations General Assembly on December 16,
1966. It entered into force on January 3, 1976. As of
2015, it has 71 signatories and 164 parties

• SECOND GENERATION RIGHTS

• Articles 6-15 of ICESCR
1. Right of everyone to the opportunity to
gain his living by work which he freely
chooses or accepts
2. Right to just and favorable conditions of
INTERNATIONAL work
COVENANT ON 3. Right to form trade unions and join trade
ECONOMIC, unions of choice
SOCIAL AND 4. Right to social security, including social
CULTURAL insurance
RIGHTS 5. Right to protection of family
6. Right of everyone to an adequate
standard of living for himself and his
family, including adequate food, clothing
and housing, and to the continuous
improvement of living conditions
7. Right of everyone to the enjoyment of
the highest attainable standard of
physical and mental health
8. Right to education
9. Right to cultural life, scientific progress,
etc.

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K. Basic Principles of International Humanitarian Law (Laws of War; Laws

of Armed Conflict)

• NOTE: THE PRINCIPLES OF THE LAWS OF WAR ARE ONLY

APPLICABLE DURING ARMED CONFLICT! REGULATES THE
MEANS AND METHODS OF WARFARE PROVIDING
PROTECTION TO VICTIMS OF ARMED CONFLICT

• The body of international rules, established by treaties or custom, which

are specifically intended to solve humanitarian problems directly arising
from international or non-international armed conflicts and which, for
humanitarian reasons, limit the right of parties to a conflict to use the
methods and means of warfare of their choice or protect persons and
property that are, or may be, affected by conflict

1. Categories of Armed Conflicts

• These are those in which at least two States are

involved. It includes all cases of declared war or of
any other armed conflict which may arise between
INTERNATIONA
two or more States which are parties to the
L ARMED
Conventions, even if the State of war is not
CONFLICT
recognized by one of them and all cases of partial
or total occupation of the territory of a State Party,
even if the said occupation meets with no armed
resistance

• Those restricted to the territory of a single State,

involving either regular or armed forces fighting
INTERNAL (NON-
groups of armed dissidents, or armed groups
INTERNATIONAL)
ARMED CONFLICT fighting each other. They are governed by the
common Article 3 of the four Geneva Conventions
as well as by the Additional Protocol II

WAR OF • Wars fought by people fighting against colonial

NATIONAL domination, alien occupation, and racist regimes in
LIBERATION the exercise of their right to self-determination

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• The Philippines renounces war as an instrument of

national policy, adopts the generally accepted
principles of international law as part of the law of
the land and adheres to a policy of peace, equality,
justice, freedom, cooperation and amity with all
nations.
• The state values the dignity of every human person
and guarantees full respect for human rights,
including the rights of indigenous cultural
communities and other vulnerable groups, such as
women and children;
• It shall be the responsibility of the State and all
other sectors concerned to resolved armed conflict
in order to promote the goal of "Children as Zones
of Peace";
• The state adopts the generally accepted principles
of inter national law, including the Hague
RA 9851 Conventions of 1907, the Geneva Conventions on
(Philippine Act the protection of victims of war and international
on Crimes humanitarian law, as part of the law our nation;
Against • The most serious crimes of concern to the
International international community as a whole must not go
Humanitarian unpunished and their effective prosecution must be
Law, Genocide, ensured by taking measures at the national level, in
and Other order to put an end to impunity for the perpetrators
Crimes Against of these crimes and thus contribute to the
Humanity) prevention of such crimes, it being the duty of every
State to exercise its criminal jurisdiction over those
responsible for international crimes;
• The State shall guarantee persons suspected or
accused of having committed grave crimes under
international law all rights necessary to ensure that
their trial will be fair and prompt in strict accordance
with national and international law and standards for
fair trial, It shall also protect victims, witnesses and
their families, and provide appropriate redress to
victims and their families, It shall ensure that the
legal systems in place provide accessible and
gender-sensitive avenues of redress for victims of
armed conflict, and
• The State recognizes that the application of the
provisions of this Act shall not affect the legal status
of the parties to a conflict, nor give an implied
recognition of the status of belligerency

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1. Principle of Proportionality: Force used to achieve

a certain legitimate goal must somehow be
proportionate to the military importance of that
goal. Attacks are prohibited when the expected
losses or destruction would be excessive in relation
to the concrete and direct military advantage
anticipated
2. Principle of Distinction/Discrimination: In order to
ensure respect for and protection of the civilian
population and civilian objects, the Parties to the
conflict shall at all times distinguish between the
civilian population and combatants and between
civilian objects and military objectives and
accordingly shall direct their operations only against
military objectives
3. Doctrine of Military Necessity: Belligerents may
FUNDAMENTAL
employ any amount and kind of force to compel the
PRINCIPLES
complete submission of the enemy with the least
possible loss of lives, time and money
4. Principle of Humanity: It prohibits the use of
weapons which cause indiscriminate destruction or
injury or inflict unnecessary pain or suffering
5. Principle of Chivalry: This principle requires the
belligerents to give proper warning before
launching a bombardment or prohibit the use of
perfidy in the conduct of hostilities. This principle
does not prohibit espionage
6. Principle of Balance of Powers: This doctrine
considers the necessity of a balance of power
between the leading States as the basis of mutual
self-protection. It is an arrangement of affairs so that
no State shall be in a position to have absolute
mastery and dominance over others

• A person is hors de combat if:

1. He is in the power of an adverse Party;
2. He clearly expresses an intention to surrender;
or
3. He has been rendered unconscious or is
HORS DE
otherwise incapacitated by wounds or
COMBAT
sickness, and therefore is incapable of
defending himself;
4. Provided that in any of these cases he abstains
from any hostile act and does not attempt to
escape

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• A person who takes part in hostilities and falls into

the power of an adverse party shall be presumed to
be a prisoner of war. However, non-privileged
combatants (i.e. spies) do not get the privilege of
being considered as prisoners of war.
• Treatment of Prisoners of War
• They are considered as prisoners of a State,
i.e. the detaining power, not of the individuals
PRISONERS OF or units that captured them. They cannot be
WAR punished for direct participation in hostilities.
If they have violated international humanitarian
law prior to their capture they may be
punished subject to the safeguards set out in
Article 85 of the Geneva Convention III but still
retain their status of prisoners of war under the
Convention. The detaining power is
responsible for their treatment in international
law

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L. Law of the Sea

• The 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 international
cooperation between States

LAW OF THE SEA

• The second sentence of Article I of the 1987

Constitution is an affirmation of the archipelagic
doctrine, under which we connect the outermost
points of our archipelago with straight baselines and
consider all the waters enclosed thereby as internal
waters. The entire archipelago is regarded as one
integrated unit instead of being fragmented into so
many thousand islands
• “The waters around, between, and connecting
ARCHIPELAGIC the islands of the archipelago, regardless of their
DOCTRINE breadth and dimensions, form part of the internal
waters of the Philippines.” - forms part of the
LAND DOMAIN, not the maritime domain
• Archipelago is a group of islands, including parts of
islands, interconnecting waters and other natural
features which are 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.
(UNCLOS, Art. 46)

• A baseline is the line from which the outer limits of

marine spaces under the national jurisdiction of the
BASELINE
coastal State are measured. It is also the line
distinguishing internal waters from the territorial sea

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LAW OF THE SEA

• A system of straight lines joining specified or

discrete points on the low-water line (“straight
baseline turning points”) which may be used only in
localities where the coastline is deeply indented and
cut into, or if there is a fringe of islands along the
coast in its immediate vicinity. Under the straight
baseline system, baselines are drawn across water,
not along the coast
• Imaginary straight lines are drawn joining the
outermost points of the outermost islands of the
archipelago enclosing an area the ratio of which
should not be more than 9:1 (water to land);
provided that the drawing of baselines shall not
depart to any appreciable extent; from the general
configuration of the archipelago
• The waters within the baselines shall be considered
STRAIGHT as internal waters; while the breadth of the territorial
BASELINE sea, the contiguous zone, the EEZ, and the
METHOD continental shelf shall be measured from the
baseline.

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LAW OF THE SEA

• The waters enclosed by the archipelagic baselines

drawn in accordance with Article 47 regardless of
their depth of distance from the coast. An
archipelagic State exercises territorial sovereignty
ARCHIPELAGIC over its archipelagic waters
WATERS • They do not constitute internal waters. On ratifying
the UNCLOS III, however, the Philippines declared
that the concept of archipelagic waters is similar to
the concept of inter nal waters under the
Constitution of the Philippines.

• The exercise in accordance with UNCLOS III of the

rights of navigation and overflight in the normal
ARCHIPELAGIC mode solely for the purpose of continuous,
SEA LANE expeditious and unobstructed transit between one
PASSAGE part of the high seas or an exclusive economic zone
and another part of the high seas or an exclusive
economic zone

• Under RA 9522, the baselines laws are enacted by

UNCLOS III State parties to mark-out specific
basepoints along their coasts from which baselines
are drawn, either straight or contoured, to serve as
geographic starting points to measure the breadth
REGIME OF
of the maritime zones and continental shelf.
ISLANDS
• Said law effectively classified the Kalayaan Island
Group (KIG) and the Scarborough Shoal as
Regime(s) of Island consistent with UNCLOS III
which manifests the Philippine State’s responsible
observance of its pacta sunt servanda obligation

• Those waters which lie landward of the baseline

from which the territorial sea is measured (UNCLOS
III, Art. 8, Par. 1). It includes: (WELP2)
1. Waters enclosed by straight baselines
2. Estuaries;
INTERNAL
3. Landward waters from the closing line of bays;
WATERS
4. Parts of the sea along the coast down to the
low-water mark;
5. Ports and harbors.
• Every coastal State enjoys full sovereignty over
its internal waters

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LAW OF THE SEA

• The portion of the open sea adjacent to the shores

of a State over which that State exercises
jurisdiction.
• Every State has the right to establish the breadth of
its territorial sea to a limit not exceeding 12
nautical miles, measured from the baseline.
TERRITORIAL
• RIGHT OF INNOCENT PASSAGE: In order to
SEA (UNCLOS)
preserve international navigation, especially those
waters that were formerly high seas, all States enjoy
the right of innocent passage through archipelagic
waters (ONLY territorial sea, NOT internal waters)
subject to suspension if required by national
security.

• The Exclusive Economic Zone (EEZ) is an area

beyond and adjacent to the territorial sea, not
EXCLUSIVE
extending beyond 200 nautical miles from the
ECONOMIC
baseline of the territorial sea (UNCLOS III, Arts. 55 &
ZONE
57). The coastal State must claim the zone in order
to establish an EEZ

• The continental shelf of a coastal State

compromises the seabed and subsoil of the
submarine areas that extend beyond its territorial
sea throughout the natural prolongation of its land
territory to the outer edge of the continental
CONTINENTAL
margin, or to a distance of 200 nautical miles from
SHELF
the baselines from which the breadth of the
territorial sea is measured where the outer edge of
the continental marine does not extend up to that
distance (UNCLOS III, Art. 76, Par. 1).
• Unlike the EEZ, it exists ipso facto and ab initio.

• This refers to a continental shelf that goes beyond

the 200 nautical mile limit
EXTENDED • The coastal State shall make payments and
CONTINENTAL contributions in kind in respect of the exploitation of
SHELF the non-living resources of the continental shelf
beyond 200 nautical miles from the baselines from
which the breadth of the territorial sea is measured

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LAW OF THE SEA

• The International Tribunal for the Law of the Sea

(ITLOS) was created by the UNCLOS. It has 21
judges elected by the member states with a system
in place to ensure an equitable geographic balance
• Persons Who Have Access to the Tribunal
1. States Parties to the UNCLOS III; and
2. Entities other than States Parties, in any case:
INTERNATIONA a. Expressly provided for in Part XI of the
L TRIBUNAL UNCLOS III; or
FOR THE LAW b. Submitted pursuant to any agreement
OF THE SEA conferring jurisdiction on the Tribunal
which is accepted by all parties to that
case
• The jurisdiction of the tribunal comprises of all
disputes and applications submitted to it in
accordance with the UNCLOS and all matters
specifically provided for in any other agreement
which confers jurisdiction on the Tribunal

• The UNCLOS gives to the coastal State sovereign

rights in varying degrees over the different zones of
the sea which are:
1. internal waters
2. territorial sea - 12 miles
• For 1& 2: the coastal State exercises
sovereignty, subject to the UNCLOS and
RIGHTS OF THE other rules of International Law. Such
COASTAL sovereignty extends to the air space over
STATE the territorial sea as well as to its bed
and subsoil.
• Warships enjoy sovereign immunity
• Arigo vs. Swift:
3. contiguous zone - 12 miles from territorial sea
(24 miles from baseline)
4. EEZ - 200 miles from baseline
5. high seas

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LAW OF THE SEA

• An Act to Amend Certain Provisions of R.A. 3046

and to Define the Archipelagic Baselines of the
Philippine
• Magallona vs. Ermita questioned the
constitutionality of R.A. No. 9522. The Supreme
Court upheld the validity and constitutionality of the
law, stating:
1. R.A. 9522 has merely demarcated the
country’s maritime zones and continental
shelves in accordance to UNCLOS III.
2. The framework of the regime of islands
suggested by the law is not incongruent with
the Philippines’ enjoyment of territorial
sovereignty over the areas of Kalayaan Group
of Islands and the Scarborough.
R.A. NO. 9522
3. The claims over Sabah remained even with the
&
adoption of the amendments.
MAGALLONA
4. Most importantly, the baseline laws are mere
VS. ERMITA
mechanisms for the UNCLOS III to precisely
describe the delimitations. It serves as a
notice to the international family of states and
it is in no way affecting or producing any effect
like enlargement or diminution of territories.
5. Moreover, the argument that R.A. 9522 has
converted the internal waters into archipelagic
waters is untenable. The political branches of
the Government may pass domestic laws that
will aid in the competent security measures
and policies that will regulate innocent
passage - as innocent passage as a right
based on customary law - no state can validly
invoke sovereignty to deny a right
acknowledged by modern states

1. Discovery and Occupation

• Doctrine of Effective Occupation - discovery
MODES OF
and occupation of a territory which is TERRA
ACQUIRING
NULLIUS (a land belonging to no one). Mere
TERRITORY
discovery is an inchoate right.
UNDER INTL
2. Cession
LAW
3. Prescription
4. Accretion

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M. Basic Principles of International Environmental Law

1. Precautionary Principle

• “In order to protect the environment, the precautionary

approach shall be applied by states according to their
capabilities. Where there are threats of serious or irreversible
damage, lack of full scientific certainty shall not be used as a
reason for postponing cost-effective measures to prevent
environmental degradation”
• The precautionary principle applies when the following
conditions are met:
1. There exist considerable scientific uncertainties;
2. There exist scenarios (or models) of possible harm that
are scientifically reasonable (that is based on some
scientifically plausible reasoning);
3. Uncertainties cannot be reduced in the short term
without at the same time increasing ignorance of other
relevant factors by higher levels of abstraction and
idealization;
4. The potential harm is sufficiently serious or even
irreversible for present or future generations or
otherwise morally unacceptable;
5. There is a need to act now, since effective counteraction
later will be made significantly more difficult or costly at
any later time. 


• Under this Rule, the precautionary principle finds direct

application in the evaluation of evidence in cases before the
courts. The precautionary principle bridges the gap in cases
where scientific certainty in factual findings cannot be
achieved. By applying the precautionary principle, the court
may construe a set of facts as warranting either judicial action
or inaction, with the goal of preserving and protecting the
environment. This may be further evinced from the second
paragraph where bias is created in favor of the constitutional
right of the people to a balanced and healthful ecology. In
effect, the precautionary principle shifts the burden of
evidence of harm away from those likely to suffer harm and
onto those desiring to change the status quo. An application
of the precautionary principle to the rules on evidence will
enable courts to tackle future environmental problems before
ironclad scientific consensus emerges.

• For purposes of evidence, the precautionary principle should

be treated as a principle of last resort, where application of

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the regular Rules of Evidence would cause in an inequitable

result for the environmental plaintiff –
a. settings in which the risks of harm are uncertain;
b. settings in which harm might be irreversible and what is
lost is irreplaceable; and
c. settings in which the harm that might result would be
serious. When these features – uncertainty, the
possibility of irreversible harm, and the possibility of
serious harm – coincide, the case for the precautionary
principle is strongest.

• When in doubt, cases must be resolved in favor of the

constitutional right to a balanced and healthful ecology.
Parenthetically, judicial adjudication is one of the strongest
fora in which the precautionary principle may find applicability.

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